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A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma
ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India), R.V.R. Chandrasekhara Rao (Professor,
Politics), Boggarapu Sitaramaiah (Lawyer and Freedom Fighter, Hyderabad), K. Subba Rao (Senior Advocate, Bangalore),
Ravi Kiran Jain (Sr. Advt., Allahabad), K. Pratap Reddy (Sr. Advt., Hyderabad), Sagar Dhara (Engineer, Hyderabad),
R. Kuchelar (Lawyer & labor leader, Madras), Dr. Koenraad Elst (Indologist, Belgium)
Volume 15: Part 1 15 January 2019 No. 1
CONTENTS IDENTITY POLITICS WILL RUIN THE COUNTRY
1. Identity politics will ruin the country 1
2. Historical inevitability or 2,
Electoral corruption? (90) [IMS] 91
Viceroy Minto Ambedkar Kudos, the only SC community opposes Arun Jaitley
3. Political Trouble in India: reservations, yes
Father reservations? SC Reservations 10 y separate voters, no DK Vellalars against reservations Courtesy: HT supports the Bill
1910-1917, J.C. Ker (54) 3-6 The current ruling coterie under Modi stirred up another hornet‘s nest
4. Judicial Review in India (27) recently by moving, and due to the utter stupidity of the opposition parties,
Dr. R.V.R. Chandrasekhara Rao 7-10 even succeeding in getting passed by an overwhelming majority in both the
5. The Profits of Religion (13) Houses of Parliament, a 124th Constitution Amendment bill by adding clauses
Upton Sinclair 11-14 numbered (6) to Articles 15 and 16 respectively to the extent that – ― ‗15(6)
Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article
6. Alok Kumar Varma v. 29 shall prevent the State from making,— (a) any special provision for the advancement
Union of India & Anr. 15-26, of any economically weaker sections of citizens other than the classes mentioned in
[IND-SC] {CBI Director case} 67-68 clauses (4) and (5); and (b) any special provision for the advancement of any
7. Bolivia v. Chile [ICJ-Hague] 27-66 economically weaker sections of citizens other than the classes mentioned in clauses (4)
and (5) in so far as such special provisions relate to their admission to educational
8. Asheesh Jain v. Makrand institutions including private educational institutions, whether aided or unaided by the
Singh & Ors. [IND-SC] 69-78 State, - other than the minority educational institutions referred to in clause (1) of article 30,
9. Mutual Aid : A Factor of which in the case of reservation would be in addition to the existing reservations and subject to a
maximum of ten per cent of the total seats in each category. Explanation.—For the purposes of
Evolution (4), Kropotkin 79-82 this article and article 16, "economically weaker sections" shall be such as may be notified by
10. Alternatives, Sagar Dhara 83-86 the State from time to time on the basis of family income and other indicators of economic
11. Guns Outlawed…, Dr. PCR 87 disadvantage.‘‖ and ―16(6) "(6) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments or posts in favour of any
12. Israel’s Undeclared War economically weaker sections of citizens other than the classes mentioned in clause (4),
in Syria, Stephen Lendman 88 in addition to the existing reservation and subject to a maximum of ten per cent. of the
13. Tump colluding and posts in each category".‖ This makes a travesty of the fundamental principles of
chummy with Putin?- SL 89-90 equality and non-discrimination between citizens, embodied in Articles 15 & 16
originally, and crosses the ‗Lakshman Rekha‘ of all reservations not exceeding
14. Poems, Edgar Allan Poe 92
50% ordained by the Supreme Court too. It is being lauded as pro-poor but
Editorial Office: 6-3-1243/156, what is so pro-poor in it. Do the countries which have come out of the rut of
Opposite Raj Bhavan, misery, and have developed and/are fast progressing like China, Japan, South
HYDERABAD - 500 082. Korea, Taiwan, Singapore, Malaysia etc. or Russia, Britain, EU countries and
the U.S. or even the poorer Latin American countries have such a wretched
Ph: 040-23300284;
E-mail: mani.bal44@gmail.com system? This editor is not opposed to reservations to all EBCs, but that should
be within the ‗Lakshman Rekha‘, by reduction of the existing quotas to other
Processing: Sai Likhita Printers, Chintal
communities and aiming the eventual, gradual, elimination of this system itself.
Basti, Hyderabad-500004;
Ph: +91-7207045979
This cursed system and the identity politics around it will ruin the country; it
was basically introduced as a part of the British imperialist ‗divide and rule‘
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wages‘, economic justice through increase of equality and reduction of
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concentration of wealth, free pre-higher education at least and free public
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Please donate Rs. 50/- or more. 1
NOTE: The opinions and comments in the editorials are exclusively the Editor‘s and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
2 (2019) 1 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?
[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
It is further reported in the cited news item in
Andhra Patrika, dated 3 July 1924, and it is
remarkable to note that –
“Some time earlier a Munsif [Taluka Judge] had
sent a report to the District Magistrate stating
that due to this Stars Council formed by local traders no
litigation is being filed in the courts due to which much
loss is caused to the government and suggested that the
District Magistrate may take appropriate measures to
cause this Stars Council abolished[!]. However, the
District Judge took a different opinion on the matter
and so this suggestion was rejected.”
“Jogipet traders have established a local Andhra
Jana Sangham [Andhra People’s Association] under
the inspiration of the Nizam Provincial Andhra
Jana Kendra Sangham [Andhra People’s Central
Association] and under its administration an
Andhra Bhasha Nilayam [Andhra Language
th
Abode] was also founded on Wednesday, the 10
day of Vaisakha, Bahula Dasami and all the
traders gathered there with utmost attention and
devotion to celebrate the function on the morning
of the day and conducted Saraswathi Puja
[Worship of Goddess Saraswathi] at the auspicious
moment fixed by learned Brahmins with
Mangala Harati, etc. And got some books and
journals to start with in the Centre.
About the time the Saraswathi worship ended,
Special invitee eminent Andhra persons had
come from Hyderabad in a motor car, and it was
decided to hold a public meeting of the
association in that evening.
The public meeting was accordingly conducted
in that evening and it was attended by the local
employees too. Sri Chiragu Veeranna (Sadar
Mustazar Abkari – excise officer) presided over the
meeting and speeches were given on the need
and importance of libraries and how to maintain
them well. A student by name Rajeswara Rao
read out some poems written by himself and Sri
Sadasiva Reddy, a local gentleman, had spoken
on the development of education among the
people in the Nizam State.”

Continued from Law Animated World, 31 December 2018
issue; emphases in bold ours - IMS.
Law Animated World, 15 January 2019
- I. Mallikarjuna Sharma
Apart from stressing on the common adoption and use
of the term Andhra by all the local Telangana people or at
least the middle classes of the day and the attention and
devotion shown by them to the development of
Telugu language and Andhra culture, it is essential
here to point out how this Andhra Jana Kendra
Sangham had come to be established in the first
place, in addition to the news reports we cited and
discussed earlier on the same development, from
the mouth of the lion himself – that is, one of the
founders of the Andhra movement [Andhrodyamam]
in the Nizam Hyderabad State – Sri Suravaram
Pratap Reddy, founder and publisher, also editor for
long years, of the then only Telugu newspaper from
the Hyderabad State, Golkonda Patrika, in the
editorial dated 25 May 1927 in which he applauded
the organization and efforts of the Nizam State
Social Reform Conference being conducted from
time to time and called on the local Andhras of
Nizam State to extensively participate in the
forthcoming such Social Reform Conference to be
held in Hyderabad soon, and make it a success:–
“THE SIXTH NIZAM STATE
SOCIAL REFORM CONFERENCE
Readers of this newspaper are aware of the
already published news in our columns that this
Conference is going to take place at Hyderabad
in the first week of the Amardad month. It is
quite encouraging that the famous Bengali
scholar Srimati Sarala Devi had consented to
preside over this Conference and as the dates
fixed – 6 & 7 Amardad – also happen to be
public holidays it would be very convenient
doubtless to the locals as well as delegates and
audience coming from the mofussil areas to
attend and participate in it. As per the statements
given by the Chairman of the Reception
Committee all needed arrangements are being
made for the delegates and audience coming
from out-of-station areas. As such we suggest
and call on all the people of the Nizam Province
to participate zealously in this Conference and
that is quite essential [for its success].
“In all movements taking place in Hyderabad
Province, our Maharashtra brethren are working
(Go to p. 91)
2
 POLITICAL TROUBLE IN INDIA, 1907-1917
CHAPTER XI:
GENERAL ACCOUNT
THE PUNJAB
RELAXATION OF PRECAUTIONS
During the next two years nothing of
importance occurred in the province. A certain
amount of seditious literatures was produced, and
there were the usual exhibition of ill-feeling
between Hindus and Mahomedans, and between
the members of the Arya Samaj and followers of
other religions. In 1912 there was a good deal of
political excitement among the Mahomedans,
arising out of their sympathy with the Turks in
their difficulties in Europe, and encouraged by
the reversal of the Partition of Bengal which was
regarded as a victory for the Hindus and a proof
of the success of political agitation. None of these
movements, however, led to any serious breach
of the law, and the Punjab like the rest of India
appeared outwardly to be so quiet that, in the
[354] opinion of some of the highest authorities,
the time had come to relax the precautions against
political outrages which had been hitherto taken.
This opinion unfortunately prevailed, and the
trusting spirit in which the arrangements for the
State Entry into Delhi in December, 1912, had to
be made undoubtedly facilitated the attempt on
the life of the Viceroy. By this time Delhi had of
course ceased to be a part of the Punjab, but a
close connection was established between the
revolutionary [anarchic] conspirators of Delhi
and Lahore.
THE DELHI BOMB
About midday on December 23rd, 1912, a bomb was
thrown at Lord Hardinge, the Viceroy and Governor-
General, during his State Entry into Delhi. His
Excellency was riding on an elephant on the right
side of the front seat of the howdah, with Lady

Continued from Law Animated World, 31 December
2018 issue; emphases in bold ours - IMS.
3
James Campbell Ker
Hardinge on his left, and two Indian attendants
were seated behind. The bomb exploded in front of
the attendant immediately behind the Viceroy; the
attendant was instantly killed, the Viceroy himself was
severely wounded by fragments of the bomb and of the
howdah, and the second attendant was injured.
The procession was only momentarily stopped, as
His Excellency, who at first did not realise the
death of his attendant or the serious character of
his own injuries, ordered it to proceed; and it had
gone on some little distance before Lady Hardinge,
who displayed throughout the most admirable
fortitude, noticed that the attendant was killed and
that the Viceroy was in a fainting condition, and
ordered it to stop. When the bomb was thrown the
elephant was opposite a block of buildings known
as Dhulya Katra on the North side of the Chandni
Chowk, the principal thoroughfare of Delhi. The
Dhulya Katra is a large rectangular block with a
courtyard in the centre, and the premises facing
the street were occupied by the Punjab National
Bank. The evidence of eyewitnesses as to the point
from which the bomb was thrown, including the
statements of the highest officials, was confusing
and contradictory, and it was for a long time
supposed that it came from the roof of the
National Bank. The most detailed enquiries failed
to confirm this theory, and it now appears equally
likely that it may have been thrown from the
pavement which ran down the middle of [355] the
wide street. Evidence on other points was equally
difficult to obtain, and it was only after a protracted
and elaborate investigation, extending from Lahore to
Sylhet in Assam, where a valuable clue was discovered,
that the whole thing came out. For reasons which
will presently appear the case was never proved in a
court of law, but subject to this limitation the main
facts have been definitely ascertained. An
examination of the fragments of the Delhi bomb
indicated that it was of similar workmanship to the
bomb thrown in Dalhousie Square in March, 1911 , and
the bomb which exploded at the house of the police
informer in Midnapore in December 1912; before
describing the events which led up to the Delhi
Law Animated World, 15 January 2019
4 Political Trouble in India : 1907-1917 (J.C. Ker)
outrage, two later cases in which bombs of the
same series were employed, will be noted here, as
they had an important bearing on the
investigation.
An assassination attempt on Lord Charles Hardinge (1858-1944)
Viceroy of India, illustration from 'Le Petit Journal', 12 th January
1913 (colour litho), Bibliotheque Nationale, Paris, France
THE MAULVI BAZAR BOMB
About 7-20 p.m., on March 27th, 1913, the
report of a bomb was heard near the gate of the
bungalow of Mr. G. Gordon, I.C.S., Sub-
Divisional Officer, Maulvi Bazar, Sylhet District.
Mr. Gordon was sitting in his verandah at the
time and heard some persons running down the
road. He believed the report to be that of an
ordinary bazar bomb, fired by some school boys,
and took no notice of it that night. A short time
after he this he went across to the Circuit House
and dined with the Commissioner. Early next
morning he received information that the dead
body of a man was lying in his compound near
the hedge and a few yards from his gate, and gave
Law Animated World, 15 January 2019
4
(2019) 1 LAW
information to the police. The man had evidently
been killed by the explosion of a bomb, and near
the body were found two revolvers, one of .380
bore by Manton & Co., which was one of a
number stolen in 1906, and the other of an old
pattern and without any number. It was evident
that the Bengali had been lying in wait for Mr. Gordon,
who had incurred the enmity of the members of an
institution called the Arunachal Ashram. The original
Arunachal Ashram was started in 1908 near
Silchar by Gurudas Chaudhuri, formerly a local
Board clerk, who called himself Dayanand
Swami and collected a number of adherents. In
March, 1912, a branch was opened at Jagatse,
[356] near Maulvi Bazar, and there Dayananda
himself led the devotional exercises which included the
dancing together of men and women in the scantiest
attire to the accompaniment of noisy music. According
to the Bengali press a number of Bengali ladies of
respectable families were attracted to the
institution, which thus became a grave menace to the
morals, as well as to the peace, of the neighbourhood.
On a complaint that a boy had been kidnapped
and was being detained in the Ashram, a search
warrant was issued in June, 1912, but the police
officer who went to execute it quietly was
opposed by the inmates and retired unsuccessful.
Accordingly on 6th July, 1912, a force of armed police
was sent under an Assistant Superintendent. The
followers of Dayananda came out to attack them, and
the Assistant Superintendent was knocked off his horse,
whereupon some of the police fired and one of the so-
called sadhus was killed. On July 9th the Deputy
Commissioner finally executed the warrant with a force
of Gurkha Military Police. The members of this
fanatical society had established a state of terrorism in
the neighbourhood, and when enquiries about the
bomb incident were started people who were
understood to be in possession of information were
evidently afraid to give it; even the identity of the
deceased Bengali was not established for some
years.
THE LAHORE BOMB
The Lahore bomb went off at about 8-55 p.m. on
th
17 May, 1913. It was deposited on a road in the
Lawrence Gardens, apparently with the intention of
(2019) 1 LAW Political Trouble in India : 1907-1917 (J.C. Ker)
killing or injuring some member of the European
Club in the Montogomery Hall on his way home,
and being run over in the dark on a bicycle by a Hindu
chaprassi named Ram Padarth it exploded and killed
him. In the meantime Mr. Gordon had been
transferred from Assam to the Punjab, and he was
actually in the Montogomery Hall at the time.
Before he left Maulvi Bazar his life had been
threatened again, and as the Lahore bomb
evidently belonged to the same series it appears
that his enemies in the Sylhet District must have
followed him up to Lahore. This attractive theory
was eventually disapproved, but it led to enquiries
in Maulvi Bazar and the neighbourhood which
were of value in [357] pointing to the source of all
these picric acid bombs; the Lahore case itself opened
up a number of interesting lines of enquiry in
connection with the Delhi bomb.
THE LIBERTY LEAFLETS
The next event of importance was the raid in
Raja Bazar, Calcutta (see page 328) in November,
1913, which unearthed the gang responsible for
preparing the metal cases for this series of bombs, and
it turned out that the same gang was also engaged in
the preparation of the “Liberty” leaflets. The first
leaflet of this series appeared in Lahore some
days before the bomb outrage, the second was
posted from Ambala towards the end of July, and
the leaflet found in Kalipada Ghose’s possession
in Calcutta was the third. The writer of the
Lahore leaflet, which is printed in English, refers
at length to the mutiny of 1857, and proceeds –
“Various are the ways of Providence to bring about
changes. The upheaval of 1857 was the rising of
an unprepared injured child against a demon;
but the Revolution of 1917 as to the rising of a
full-grown and completely armed man against
a spent up, emaciated, worn out, cruel, and
blood-sucking wolf; or, in other words, the
conflict is to be between Virtue in its full glory,
armed with the Might of Justice and Freedom, and
Vice with drooping body.”
Turning to more recent times he praises those
whom he describes as martyrs, Khudiram Bose,
Madan Lal Dhingra and others, and says –
5
5
“The thrower of the bomb on the representative
of the tyrannical government at Delhi was none
else but the spirit of the Dispenser of all things
Himself. Had it not been a Providential fiat, the
resourceful machinery of the Bureaucrats would
have been exulting as much as have to weep over
their fate today. The debt we owe to the noble spirits
of the martyrs will be paid only when young men of
India will begin to come forward in numbers each to
prove a worthy successor of these departed souls.
Is the blood of these martyrs or the exile of patriots not
sufficient to madden you? Come forward, young
men of Bharatvarsha, prove yourselves worthy
sons of this Holy Land and let the Ferenghi tyrants
feel the full force of your indignation by being offered as
sacrifices at the altar of the Mother.”
AMIR CHAND
[358] The fact that bombs and leaflets advocating
their use were being prepared by the same persons in
Calcutta, and that these leaflets and a bomb of the same
series had appeared simultaneously in Lahore,
suggested that there was probably a close connection in
the Punjab between those who distribted the leaflets and
those who used the bombs, and this inference was
successfully worked out. The “Liberty” leaflets had
been circulated also in the United Provinces, and
careful investigation there pointed out to a certain
Abad Behari, a young B.A. , who lived in the house
of “Master” Amir Chand in Delhi. The latter was a
man of 40 years age and already a well-known
figure in political agitation in Delhi. He had been
for years a master in St. Stephen’s Mission School,
under the Cambridge Mission, and the authorities
of this institution had always defended him
against the suspicion with which he was regarded
by Government. His house was called the Prem Dham,
or Abode of Love, but his affection evidently did not
extend to Europeans, though he had been
befriended by some, for in his house were found an
essay in his own handwriting advocating their
assassination, and a manual explaining how this could
be effected on large scale by means of poison. Abad
Behari, too, was not new to the business, for in
the search of the house of Abinash Chakravarthi,
in the Maniktolla conspiracy case, a letter was
found dated 24th January, 1908, from Abad
Behari, Prem Dham, Delhi, asking for a copy of
the Bartaman Rananiti (see page 51).
Law Animated World, 15 January 2019
6 Political Trouble in India : 1907-1917 (J.C. Ker)
ARREST OF AMIR CHAND
In the early hours of a cold February morning in
1914 Amir Chand was roused by a knock at his
street door, and looking down from an upper
window he saw a muffled figure which replied to
his enquiry what was the matter in the sleepy drawl
of an Indian Telegraph messenger, “Babuji, tar aya
hai.” The incriminating documents and articles in
his possession were all tied up in bundles, ready to
be thrown out into the courtyard or on to a
neighbouring roof at the first alarm; but being
anxious as conspirators are to learn the latest news,
he came down to the door, without taking these pre-
arranged precautions, to receive the expected
telegram. As he opened the door [359] a search warrant
was thrust into his hand, and the game was up. His essay
on the general massacre of the English and the
treatise on the use of poisons for political purposes,
which have been mentioned above, were found, as
well as a cipher code containing a list of names
which included his own and Abad Behari’s and 57
copies of two issues of the “Liberty” leaflet. A still
more important discovery was a cap that could be used to
detonate a bomb of the Delhi and Lahore series; it was
proved in Court to be similar to the cap attached to
a bomb of the same series thrown into Bhadreswar
police station, (Hooghly District), in December,
1913, which failed to go off.
INFLUENCE OF HAR DAYAL
The search of Amir Chand’s house also
disclosed the name of Dina Nath of Lahore, an
important member of the conspiracy, who when he was
arrested made a long statement and was afterwards
made an approver. His account of the Lahore Bomb
Case was accepted both by the Sessions Judge of
Delhi and by the Chief Court of the Punjab as
remarkably accurate and substantially correct in
every detail; and though his references to the Delhi
case were naturally not subject to cross-examination
there is little doubt, from verification they have
received, that they would have stood the test
equally well. Shortly after the Delhi bomb outrage
information was received from San Francisco that Har
Dayal had claimed that it was the work of his party , and
had written the essay in its praise which was
afterwards sent out to India as a leaflet (see page
128). At the time it was thought that this claim was merely
Law Animated World, 15 January 2019
6
(2019) 1 LAW
Amir Chand Bal Mokand Avadh Behari Basant Biswas Rashbehari Bose
an idle boast, but it now appears that there was a good
deal in it. Even before he left India in 1905, at the age of
21, Har Dayal was something of a firebrand in politics,
but when he came back from Oxford at the beginning of
1908 he was worse. He collected a party of students,
sometimes as many as 30 or 40, to whom he
preached his extreme views, and it is on record that
in April, 1908, he and a small party from Delhi
stayed for a few days in Lahore with Lala Lajpatrai.
It is not known whether in those early days Har
Dayal preached assassination, but the line
afterwards taken by his Ghadr newspaper [360] in
San Francisco makes it quite probable that he did.
RASH BEHARI BOSE
When Har Dayal left India in August, 1908, he
handed over the leadership of this band of disaffected
youths to Amir Chand, and the next important
episode is the appearance on the scene two years
later in Lahore of Rash Behari Bose. This man is
a Bengali, a native of French Chandernagore, and
a relative of a well-known leader of the
Chandernagore revolutionary gang named Sirish
Ghose. Rash Behari, however, was not at this time
under any suspicion; he was employed as a clerk in the
Imperial Forest Institute at Dehra Dun, where he bore
an exemplary character. On his visit to Lahore in
1910 he found the remnants of Har Dayal’s party
ready to his hand, and after making arrangements
to correspond with some of them returned to
Dehra Dun. (to be continued)
*****
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 JUDICIAL REVIEW IN INDIA
RVR in 1955 {A Study in Constitutional Theory and Judicial Practice}
Chapter XIII:
JUDICIAL REVIEW AND DIRECTIVE
PRINCIPLES OF STATE POLICY
II
The influence, direct or indirect, of the
Chapter on Directive Principles of State Policy
(Part IV of the Constitution) in the Judicial
Construction of the Chapter on Fundamental
Rights will now be estimated. At first sight it
would appear that any notion of an appreciable
impact on the process of judicial review caused
by Directive Principles would be an exaggeration,
in view of the general but repeated observations
of the Supreme Court that Directive Principles
can never override the Fundamental Rights.1 Bu
the history of constitutional interpretation since
the inauguration of the Constitution affords
illustrations which cannot be explained by such
simple propositions. Exercise of review over
Chapter III might well be influenced by Chapter
IV, all the more so because it is unenforceable.
Hence, it is needless to mention that when
judicial review is mentioned in the context of
Directive Principles, it is not implied that Courts
uphold Directive Principles directly, but it is the
impact of these non-justiciable clauses on the
nature of judicial review exercised over the
justiciable provisions, that is implied.
In this connection it should be recalled that
judicial review as envisaged by the Constituent
Assembly of India is of a particular nature.2 The
theory that the duty of the courts is to give effect
to a written Constitution when laws passed by
legislatures conflict with it, constitutes the basis
for the doctrine in India.

Continued from Law Animated World, 31 December 2018
issue; photos and emphases in bold ours - IMS.
1
State of Madras v. Champakam Dorairajan, 1951 SCR 525
2
Cf. Chapter VII.
7
- Prof. R.V.R. Chandrasekhara Rao
How far Directive Principles affect such a
theory is the issue. An attempt will be made to
show, in the following pages, that the theory of
constitutional interpretation was itself altered,
partly by reference to the Directive Principles. Of
course, this was not the case simply because of
the fact that the Courts took notice of the
“directives”, which is rather an integral part of
any judicial process. It is not this manner of
taking notice that caused (or might cause)
variations in the theory of judicial review; the
point is whether reference to Directive Principles
could reach such a degree as to cause significant
variations in the process itself.
ANTITHETIC INTERESTS
IN A COMMON FIELD:
What is the reason for assuming that
unenforceable Directive Principles do influence
enforceable Fundamental Rights? The
justiciability of the latter can easily proceed
uninfluenced by the former, if the fields covered
by the two are quite distinct. But they are not
distinct. The fields of „political democracy‟ and
„economic democracy‟3 have both to do with
some common matters and further in these
matters they exhibit antithetic interests. The Right
to Property is an illustration of the point. Regard
for the sanctity of an individual‟s right to
property is an essential ingredient of liberal-
political democracy. The subordination of this
very right to the needs of the community is at the
kernel of any thesis on economic democracy. (It
is not asserted that economic democracy
necessarily means the communal ownership of
the means of production, exchange and
distribution, but the recognition of the society‟s
power to encroach upon private property, if need
3
Dr. Ambedkar used these phrases to signify Fundamental
Rights and Directive Principles respectively. C.A.D. VII,
p. 494.
Law Animated World, 15 January 2019
8 Judicial Review in India (R.V.R. Chandrasekhara Rao)
be, is the irreducible minimum in economic
democracy). The Directive Principles make it
obligatory on the part of the legislatures to give
effect to the principles of economic democracy
though where such an attempt conflicts with any
fundamental right their first allegiance is to the
latter.4 But, suppose that in obeying the
“directives”, Parliament passes a law which in a
way conflicts with provisions of a fundamental
right. Courts cannot save such a law on the
ground that Directive Principles are more
important than Fundamental Rights, yet the
repugnancy of thelaw to the fundamental right
could itself be resolved by interpreting the
fundamental right in the light of Directive
Principles. Whether such a method is consistent
with the theory of judicial review that was
envisaged by the Constituent Assembly is the
matter in issue. To continue with the illustration,
if the said law is alleged to impose severe
restrictions on the exercise of property rights and
hence said to conflict with the Fundamental
Rights (e.g. Article 19) then, the Courts in
determining whether such restrictions are
reasonable or not would consult and rely upon
Directive Principles and thus reconcile the
opposition of the law to Fundamental Rights. In
this case Judges have exercised their
discretionary powers, conferred by the
Constitution.5 But would there not be scope for
reconciling such conflicts by an interpretation
aimed at accommodating Directive Principles
even where no such discretionary power exists?
In giving an answer, an important point must first
be considered. The Constitution invests the
Judiciary with discretionary power in some
matters – the use of the word “reasonable” is an
example. The exercise of this discretion by the
Court in giving effect to the provisions of Chapter
IV undoubtedly forms a part of the present study.
In fact many of the issues relate to this aspect of
the relationship between Judicial Review and
4
Dr. Ambedkar, Ibid.
5
Also see Supra Chapter on Substantive Due Process,
Chapter XI.
Law Animated World, 15 January 2019
8
(2019) 1 LAW
Directive Principles. But Directive Principles
could engender the evolution of a different sort of
discretion, discretion not sanctioned, discretion of
the character of judicial law-making. It is the
possibility of this development that is of a serious
nature, for it means extension of the scope of
judicial review. While the first relates to the field
of permitted discretion and to the extent Directive
Principles influence its exercise, the second
relates to the creation of discretion and the role of
Directive Principles in that.
I. USE OF CONSTITUTIONALLY VESTED
DISCRETIONARY POWER
When Courts directly uphold and enforce
Directive Principles in the process of using
discretion, they do so without fear of
transgressing the duty of upholding the written
instrument. This direct enforcement of Directive
Principles may be carried out by the courts while
they are still confining themselves within the
limits of the theory of judicial review envisaged
by the Constituent Assembly.
In a case6 where a prohibition law was
impugned as contravening the fundamental right
under Article 19, the Supreme Court had to
consider whether the law was not intra-vires of
the legislature, being made in exercise of the
power to impose reasonable restrictions upon the
exercise of rights under the Article.
Reasonableness is justiciable. The Court held that
the apparent violation of the Fundamental Right
to acquire, hold and dispose of property caused
by the prohibition law was valid because it was in
pursuance of a clearly laid down „directive‟ under
which legislatures are obliged to “endeavour to
bring about the prohibition of the consumption,
except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to
health.”7 The Patna High Court in Kameshwar
Singh v. State of Bihar8, in considering whether a
6
Balsara v. State of Bombay, AIR 1951 Bom 210.
also Bombay v. Balsara, 1951 SCR 682.
7
Bombay v. Balsara, 1951 SCR 682 at p. 706.
8
AIR 1951 Patna 91.
(2019) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao)
Bihar land reform statute fulfilled the tests of
serving a „public purpose‟, again resorted to
Directive Principles; rejecting a narrow
interpretation of „public purpose‟ sought by the
Counsel for the plaintiff, their Lordships held that
the test of „public purpose‟ should be based on
whether the statute promoted the policy laid
down in the Directive Principles or not; if it did
then it should be deemed to have served a „public
purpose‟. The Supreme Court affirmed this law
when the case went on appeal.9 Mahajan J. (as he
then was) said: “the ... public purpose has to be
construed according to the spirit of the times in
which particular legislation is enacted and so
construed, the acquisition of the estates has to be
held to have been made for a public purpose,”10
and citing the Directive Principles he said, “The
purpose of the statute ... is in accordance with the
letter and spirit of the Constitution of India.”11 So
also, fixing of minimum rates of wages in certain
employments was held to be a reasonable
restriction on the Fundamental Right if consistent
with the Directive Principle, Article 43.12
These cases point out to the role of Directive
Principles as guides to the exercise of judicial
discretion, and how Directive Principles play a
role of limiting free play of discretion.
Where there is no discretion given to the Court and
where a Fundamental right is clearly laid down any enactment
contravening that right cannot stand even if made in
pursuance of a Directive Principle. In the case of
Madras v. Champakam13, Article 2914 of the
Constitution, clause (2) of which reads: “No
citizen shall be denied admission into any
educational institution maintained by te state or
receiving aid out of state funds on grounds only
of religion, race, caste, language or any of them,”
was given full effect notwithstanding the
„directive‟ under Article 46 which says, The state
9
1952 SCR 889.
10
Bihar v. Kameshwar, (1952) SCR 839 at p. 940.
11
Ibid., at p. 941.
12
Bijay Mills v. Ajmer, (1955) SCR 752.
13
(1951) SCR 525.
14
See Appendix.
9
9
shall promote with special care the educational
and economic interests of the weaker sections of
the people, and in particualr of the Scheduled
Castes and Scheduled Tribes and shall protect
them from social injustice and all forms of
exploitation.” Article 29 contained an exception
howsoever, i.e. neither could legislatures impose
reaonable restrictions on the exercise of this right
nor had states been given the power as an
exception to this right, to reserve seats for
backward classes. Hence the Courts refused to
validate a Madras Government Order which
sought to allot seats in educational institutions on
the basis of caste, with the professed object of
encouraging backward classes. The argument for
the State of Madras that the „directive principle‟
in Article 46 permitted such a measure was
rejected. The same day the Supreme Court also
handed in an opinion in another case concering
the same order.15 This centred round Article 16.16
The Court held that the Order purporting to allot
Government posts to various communities on the
basis of a formula was repugnant to Clauses (1)
and (2) of the Article. But since the contents of
this Article differ from those of Article 29 this
case and the previous case cannot be regarded as
identical, though the decisions were so.
Unlike Article 29, Article 16 had Clause (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
class of citizens which, in the opinion of the
State, is not adequately represented in the
services under the State.”
This reservation for backward classes was
permitted, but the Court construed the words
“backward classes” to mean only scheduled
classes and scheduled tribes. It is surprising that
in reading this exception [to clauses (1) and (2),
Article 16) their Lordships did not pay any heed
to Article 46. For, under that Article the
educational and economic interests of the weaker
15
Venkata Ramana v. State of Madras, 1951 SCJ 318.
16
See Appendix.
Law Animated World, 15 January 2019
10 Judicial Review in India (R.V.R. Chandrasekhara Rao)
sections of the people and in particular of
scheduled castes and scheduled tribes are to be
safeguarded. Of course, if the exception to Article
16, i.e., Clause (4), itself referred only to
scheduled tribes and scheduled castes then
reservations to any other communities would
violate Cls. (1) and (2), and no Directive
Principle could save such a law. But Clause (4)
referred to “backward classes”, an expression
subject to judicial evaluation, and as such Article
46 cold well have been relied upon in construing
these words. As it referred not only to scheduled
castes and tribes, courts could have given a wider
meaning to the words. This case could be
regarded as an instance when constitutionally
vested discretion was not utilised in a way to
accommodate Directive Principles.
The Supreme Court’s decision in Champakam’s
case led to the First Amendment of the Constitution. In
this case, the Madras High Court invalidated the
Communal G.O. on grounds of both Articles 1517
and 29. But, we have seen that the Supreme Court
held the Order invalid for violating Article 29(2)
only. Parliament, with a view to saving such
orders, benefitting backward classes, amended
Article 15 in such a way as to except them from
17
Article 15 before the First Amendment to the Constitution
[i.e. as Gazetted on 26 November 1949] read as follows:
15. Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth:
(1) The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place
of birth or any of them.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subject
to any disability, liability, restriction or condition
with regard to –
(a) access to shops, public restaurants, hotels and
places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or
partly out of State funds or dedicated to the use
of the general public.
(3) Nothing in this article shall prevent the State from
making any special provision for women and
children.
Law Animated World, 15 January 2019
10
(2019) 1 LAW
the general provisions of Articles 15 and 29.18
But the Supreme Court‟s refusal in Champakam‟s
case to invalidate the Orders appears quite correct
in view of the fact that the right guaranteed could
not be subordinated to a Directive Principle.
On the other hand, the decision on Article 16,
should have taken notice of the provision in the
Article i.e. Clause (4) and implemented the
Directive Principle.
This leads us to an examination of the effect of
Directive Principles on the nature of judicial
review in India. (to be continued)
*****
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18
Article 15, Clause 4 which came with the Amendment
reads as follows: “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.”
 THE PROFITS OF RELIGION
BOOK FOUR
The Church of the Slavers
Bee, underneath the Crown of Thorn,
The eye-balls fierce, the features grim!
And merrily from night to morn
We chaunt his praise and worship him –
Great Christus-Jingo, at whose feet
Christian and Jew and Atheist meet!
A wondrous god! most fit for those
Who cheat on 'Change, then creep to prayer;
Blood on his heavenly altar flows,
Hell's burning incense fills the air,
And Death attests in street and lane
The hideous glory of his reign.
– Buchanan.
FACE OF CAESAR
The thesis of this book is the effect of fixed
dogma in producing mental paralysis, and the use
of this mental paralysis by Economic
Exploitation. From that standpoint the various
Protestant sects are better than the Catholic, but
not much better. The Catholics stand upon
Tradition, the Protestants upon an Inspired Word;
but since this Word is the entire literary product,
history and biography, science and legislation,
poetry, drama and fiction of a whole people for
something like a thousand years, it is possible by
judicious selection of texts to prove anything you
wish to prove and to justify anything you wish to
do. The "Holy Book" being full of polygamy,
slavery, rape and wholesale murder, committed
by priests and rulers under the direct orders of
God, it was a very simple matter for the
Protestant Slavers to construct a Bible defense of
their system.
They get poor Jesus because he was given to
irony, that most dangerous form of utterance. If
he could come back to life, and see what men
have done with his little joke about the face of
Caesar on the Roman coin, I think he would drop
dead. As for Paul, he was a Roman bureaucrat,

Continued from Law Animated World, 31 December 2018
issue; emphases in bold ours - IMS.
11
- Upton Sinclair
with no nonsense in his make-up; when he
ordered, "Servants obey your masters," he meant
exactly what he said. The Roman official stamp
which he put upon the gospel of Jesus has been
the salvation of the Slavers from the Reformation
on.
In the time of Martin Luther, the peasants of
Germany were suffering the most atrocious and
awful misery; Luther himself knew about it, he
had denounced the princely robbers and the
priestly land-exploiters with that picturesque
violence of which he was a master. But nothing
had been done about it, nothing ever is done
about it—until at last the miserable peasants
attempted to organize and win their own rights.
Their demands do not seem to us so very criminal
as we read them today; the privilege of electing
their own pastors, the abolition of villeinage, the
right to hunt and fish and cut wood in the forest,
the reduction of exorbitant rents, extra payment
for extra labor, and—that universal cry of peasant
communes whether in Russia, England, Mexico
or sixteenth century Germany—the restoration to
the village of lands taken by fraud. But Luther
would hear nothing of slaves asserting their own
rights, and took refuge in the Pauline sociology:
If they really wished to follow Christ, they would
drop the sword and resort to prayer; the gospel
has to do with spiritual, not temporal, affairs;
earthly society cannot exist without inequalities,
etc.
And when the peasants went on in spite of
this, he turned upon them and denounced them to
the princes; he issued proclamations which might
have been the instructions of Mr. John
Wanamaker to the police-force of his "City of
Brotherly Love": "One cannot answer a rebel
with reason, but the best answer is to hit him with
the fist until blood flows from the nose." He
issued a letter: "Against the Murderous and
Thieving Mob of Peasants," which might have
come from the Reverend Woelfkin, Fifth Avenue
Pastor of Standard Oil: "The ass needs to be
Law Animated World, 15 January 2019
 12 The Profits of Religion (Upton Sinclair)
beaten, and the populace needs to be controlled
with a strong hand. God knew this well, and
therefore he gave the rulers, not a fox's tail, but a
sword." He implored these rulers, after the
fashion of Methodist Chancellor Day of the
University of Syracuse: "Do not be troubled
about the severity of their repression, for it will
save many souls." With such pious exhortations
in their ears the princes set to work, and
slaughtered a hundred thousand of the miserable
wretches; they completely aborted the social
hopes of the Reformation, and cast humanity into
the pit of wage-slavery and militarism for four
centuries. As a church scholar, Prof.
Rauschenbusch, puts it:
The glorious years of the Lutheran Reformation
were from 1517 to 1525, when the whole nation
was in commotion, and a great revolutionary
tidal wave seemed to be sweeping every class
and every higher interest one step nearer to its
ideal of life.... The Lutheran Reformation had
been most truly religious and creative when it
embraced the whole of human life and enlisted
the enthusiasm of all ideal men and movements.
When it became "religious" in the narrow sense,
it grew scholastic and spiny, quarrelsome, and
impotent to awaken high enthusiasm and noble
life.
***
Deutschland ueber Alles
As a result of Luther's treason to humanity, his
church became the state church of Prussia, and
Bible-worship and Devil-terror played their part,
along with the Mass and the Confessional, in
building up the Junker dream. A court official—
the Oberhofprediger—was set up, and from that
time on the Hohenzollerns were the most pious
criminals in Europe. Frederick the Great, the
ancestral genius, was an atheist and a scoffer, but
he believed devoutly in religion for his subjects.
He said: "If my soldiers were to begin to think,
not one would remain in the ranks." And Carlyle,
instinctive friend of autocrats, tells with jocular
approval how he kept them from thinking:
He recognizes the uses of Religion; takes a good
deal of pains with his Preaching Clergy; will
Law Animated World, 15 January 2019
12
(2019) 1 LAW
suggest texts to them; and for the rest expects to
be obeyed by them, as by his Sergeants and
Corporals. Indeed, the reverend men feel
themselves to be a body of Spiritual Sergeants,
Corporals, and Captains, to whom obedience is
the rule, and discontent a thing not to be
indulged in by any means.
So the soldiers stayed in the ranks, and
Frederick raided Silesia and Poland. His
successors ordered all the Protestant sects into
one, so that they might be more easily controlled;
from which time the Lutheran Church has been a
department of the Prussian state, in some cases a
branch of the municipal authority.
In 1848, when the people of various German
states demanded their liberty, it was an ultra-
pious king of Prussia who sent his troops and shot
them down—precisely as Luther had advised to
shoot down the peasants. At this time the future
maker of the German Empire rose in the Landtag
and made his bow before the world; a young
Prussian land-magnate, Otto von Bismarck by
name, he shook his fist in the face of the new
German liberalism, and incidentally of the new
German infidelity:
Christianity is the solid basis of Prussia; and no
state erected upon any other foundation can
permanently exist.
The present Hohenzollern has diligently
maintained this tradition of his line. It was his
custom to tour the Empire in a train of blue and
white cars, carrying as many costumes as any
stage favorite, most of them military; with him on
the train went the Prussian god, and there was
scarcely a performance at which this god did not
appear, also in military costume. After the failure
of the "Kultur-kampf," the official Lutheran
religion was ordered to make friends with its
ancient enemy, the Catholic Church. Said the
Kaiser:
I make no difference between the adherents of
the Catholic and Protestant creeds. Let them both
stand upon the foundation of Christianity, and
they are both bound to be true citizens and
obedient subjects. Then the German people will
be the rock of granite upon which our Lord God
(2019) 1 LAW The Profits of Religion (Upton Sinclair)
can build and complete his work of Kultur in the
world.
And here is the oath required of the Catholic
clergy, upon their admission to equality of
trustworthiness with their Protestant confreres:
I will be submissive, faithful and obedient to his
Royal Majesty,—and his lawful successors in the
government,—as my most gracious King and
Sovereign; promote his welfare according to my
ability; prevent injury and detriment to him; and
particularly endeavor carefully to cultivate in the
minds of the people under my care a sense of
reverence and fidelity towards the King, love for the
Fatherland, obedience to the laws, and all those
virtues which in a Christian denote a good citizen; and
I will not suffer any man to teach or act in a contrary
spirit. In particular I vow that I will not support any
society or association, either at home or abroad, which
might endanger the public security, and will inform
His Majesty of any proposal made, either in my
diocese or elsewhere, which might prove injurious to
the State.
And later on this heaven-guided ruler conceived
the scheme of a Berlin-Bagdad railway, for
which he needed one religion more; he paid a
visit to Constantinople, and made another debut
and produced another god – with the result that
millions of Turks are fighting under the belief
that the Kaiser is a convert to the faith of
Mohammed!
***
Der Tag.
All this was, of course, in preparation for the
great event to which all good Germans looked
forward—to which all German officers drank
their toasts at banquets—the Day.
This glorious day came, and the field-gray
armies marched forth, and the Pauline-Lutheran
God marched with them. The Kaiser, as usual,
acted as spokesman:
Remember that the German people are the
chosen of God. On me, the German emperor, the
spirit of God has descended. I am His sword, His
weapon and His viceregent. Woe to the
disobedient and death to cowards and
unbelievers.
13
13
As to the Prussian state religion, its attitude to
the war is set forth in a little book written by a
high clerical personage, the Herr Consistorialrat
Dietrich Vorwerk, containing prayers and hymns
for the soldiers, and for the congregations at
home. Here is an appeal to the Lord God of
Battles:
Though the warrior's bread be scanty, do Thou
work daily death and tenfold woe unto the
enemy. Forgive in merciful long-suffering each bullet
and each blow which misses its mark. Lead us not
into the temptation of letting our wrath be too
tame in carrying out Thy divine judgment.
Deliver us and our ally from the Infernal Enemy
and his servants on earth. Thine is the kingdom,
the German land; may we, by the aid of Thy
steel-clad hand, achieve the fame and the glory.
It is this Herr Consistorialrat who has
perpetrated the great masterpiece of humor of the
war—the hymn in which he appeals to that God
who keeps guard over Cherubim, Seraphim, and
Zeppelins. You have to say over the German
form of these words in order to get the effect of
their delicious melody – "Cherubinen, Seraphinen,
Zeppelinen!" And lest you think that this too-
musical clergyman is a rara avis, turn to the little
book which has been published in English under
the same title as Herr Vorwerk's "Hurrah and
Hallelujah." Here is the Reverend S. Lehmann:
Germany is the center of God's plans for the world.
Germany's fight against the whole world is in
reality the battle of the spirit against the whole world's
infamy, falsehood and devilish cunning.
And here is Pastor K. Koenig:
It was God's will that we should will the war.
And Pastor J. Rump:
Our defeat would mean the defeat of His Son in
humanity. We fight for the cause of Jesus within
mankind.
And here is an eminent theological professor:
The deepest and most thought-inspiring result of the
war is the German God. Not the national God such
as the lower nations worship, but "our God," who is
not ashamed of belonging to us,the peculiar acquirement
of our heart.
***
Law Animated World, 15 January 2019
 14 The Profits of Religion (Upton Sinclair)
King Cotton
It is a cheap way to gain applause in these days, to
denounce the Prussian system; my only purpose is to
show that Bible-worship, precisely as saint-worship or
totem-worship, delivers the worshipper up to the
Slavers. This truth has held in America, precisely
as in Prussia. During the middle of the last
century there was fought out a mighty issue in
our free republic; and what was the part played in
this struggle by the Bible-cults? Hear the
testimony of William Lloyd Garrison: "American
Christianity is the main pillar of American slavery. "
Hear Parker Pillsbury: "We had almost to abolish the
Church before we could reach the dreadful institution
at all."
In the year 1818 the Presbyterian General Assembly,
which represented the churches of the South as well
as of the North, passed by a unanimous vote a
resolution to the effect that " Slavery is utterly
inconsistent with the law of God, which requires us to
love our neighbor as ourselves." But in a generation the
views of the entire South, including the Presbyterian
Church, had changed entirely. What was the reason?
Had the "law of God" been altered? Had some new
"revelation" been handed down? Nothing of the
kind; it was merely that a Yankee by the name of Eli
Whitney had perfected a machine to take the seeds out of
short staple cotton. The cotton crop of the South
increased from four thousand bales in 1791 to four
hundred and fifty thousand in 1820 and five
million, four hundred thousand in 1860.
There was a new monarch, King Cotton, and his
empire depended upon slaves. According to the custom
of monarchs since the dawn of history, he hired the
ministers of God to teach that what he wanted was right
and holy. From one end of the South to the other the
pulpits rang with the text: "Cursed be Canaan; a
servant to servants shall he be to his brethren." The
learned Bishop Hopkins, in his "Bible View of
Slavery", gave the standard interpretation of this text:
The Almighty, forseeing the total degredation of the
Negro race, ordained them to servitude or slavery under
the descendants of Shem and Japheth, doubtless
because he judged it to be their fittest condition.
I might fill the balance of this volume with
citations from defenses of the "peculiar institution" in
the name of Jesus Christ – and not only from the South,
Law Animated World, 15 January 2019
14
(2019) 1 LAW
but from the North. For it must be understood that
leading families of Massachusetts and New York owed
their power to Slavery; their fathers had brought
molasses from New Orleans and made it into rum,
and taken it to the coast of Africa to be exchanged
for slaves for the Southern planters. And after this
trade was outlawed, the slave-grown cotton had still to
be shipped to the North and spun; so the traders of the
North must have divine sanction for the Fugitive Slave law .
Here is the Bishop of Vermont declaring: " The
slavery of the negro race appears to me to be fully
authorized both in the Old and New Testaments." Here in
the "True Presbyterian", of New York, giving the
decision of a clerical man of the world: " There is no
debasement in it. It might have existed in Paradise, and it
may continue through the Millenium."
And when the slave-holding oligarchy of the South
rose in arms against those who presumed to interfere with
this divine institution, the men of God of the South called
down blessings upon their armies in words which, with
the proper change of names, might have been
spoken in Berlin in August, 1914. Thus Dr.
Thornwell, one of the leading Presbyterian divines
of the South: "The triumph of Lincoln's principles is the
death-knell of slavery.... Let us crush the serpent in the
egg." And the Reverend Dr. Smythe of Charleston:
"The war is a war against slavery, and is therefore
treasonable rebellion against the Word, Providence and
Government of God." I read in the papers, as I am
writing, how the clergy of Germany are thundering
against President Wilson's declaration that that country
must become democratic. Here is a manifesto of the
German Evangelical League, made public on the
four hundredth anniversary of the Reformation:
We especially warn against the heresy, promulgated
from America, that Christianity enjoins democratic
institutions, and that they are an essential
condition of the kingdom of God on earth.
In exactly the same way the religious bodies of
the entire South united in an address to Christians
throughout the world, early in the year 1863:
The recent proclamation of the President of the United
States, seeking the emancipation of the slaves of the
South, is in our judgment occasion of solemn protest
on the part of the people of God.
*****
(to be continued)
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
(2019) 1 LAW ISC-1
SUPREME COURT OF INDIA
AT NEW DELHI
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 1309 of 2018
Date of Judgment: Tuesday, 8 January 2019
ALOK KUMAR VERMA … Petitioner
Versus
Union of India & Anr. … Respondents
with Writ Petition (Civil) No. 1315 of 2018
[Common Cause Vs. Union of India & Ors.]
Citation: (2019) 1 LAW ISC-1
CORAM:
RANJAN GOGOI, CJI.
SANJAY KISHAN KAUL, J.
K.M. JOSEPH, J.
***
SHORT NOTES: This is an important and sensational
recent decision of the Supreme Court SETTING ASIDE
the so-called transfer of the Director, CBI, Alok Verma, by
the Central Vigilance Commission on an almost no
evidence over corruption allegations made against him. It
was widely talked about that he was shunted out of the CBI
for incurring disfavor with the Prime Minister, probably
due to the interest shown by him in investigaing a
complaint on the Rafale Planes Deal Scam given by Sri
Arun Shourie, Yashwant Sinha and Prashant Bhushan, but
the real grudge is rarely revealed in such matters. Anyway,
on wide discussion of constitutional and legal provisions,
the Apex Court felt that only the three person selection
committee which appointed the Director, CBI, could take
disciplinary measures against him and accordingly
directed the committee to decide on his fate within a week
in any case.
***
JUDGMENT
RANJAN GOGOI, CJI:
1. That the Rule of law is the bedrock of democracy
would hardly require any reiteration. However
firmly entrenched the principle may be, it gets tested in
a myriad of situations that confronts the courts from
time to time. The present is one such occasion.

Courtesy: Supreme Court of India at http://judis.nic.in/;
Para numbers and emphases in bold ours - IMS.
15
ISC-1
2. On 23rd October, 2018, the Central Vigilance
Commission (hereinafter referred to as ―CVC‖)
passed an order divesting Shri Alok Kumar
Verma, Director, Central Bureau of Investigation
(hereinafter referred to as ―CBI‖) of the powers,
functions, duties, supervisory role, etc. vested in
him as the Director of the CBI. The exercise of
said power by the aforesaid order dated 23rd
October, 2018, signed by the Central Vigilance
Commissioner and two other Vigilance
Commissioners holding office, is stated to be
under Section 8(1)(a) and 8(1)(b) of the Central
Vigilance Commission Act, 2003 (hereinafter
referred to as ―the CVC Act‖) read with Section
4(1) of the Delhi Special Police Establishment
Act, 1946 (hereinafter referred to as ―DSPE
Act‖). The divestment of Shri Alok Kumar
Verma, Director, CBI of his functions, powers,
duties and supervisory role, specifically, is in
respect of all cases already registered and/or
required to be registered and/or being inquired/
enquired/investigated under the Prevention of
Corruption Act, 1988 (hereinafter referred to as
―PC Act‖).
3. The aforesaid order is stated to be in the nature
of an interim measure till completion of an
inquiry into the allegations contained in a
complaint dated 24th August, 2018 submitted/
forwarded by the Cabinet Secretary by letter
dated 31st August, 2018 to the CVC.
4. The said order dated 23rd October, 2018 of the
CVC was followed by an order of the
Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of
Personnel & Training of the same date i.e. 23rd
October, 2018 divesting Shri Alok Kumar Verma,
Director, CBI of his functions, powers, duties and
supervisory role in any manner as the Director,
CBI with immediate effect and until further
orders.
5. There is yet another order of the same date i.e.
23rd October, 2018 of the Government of India,
Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel & Training by
which one Shri M. Nageshwar Rao, IPS, Joint
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ISC-2 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
Director, CBI has been asked to look after the
duties and functions of Director, CBI with
immediate effect.
6. The legality and validity of the aforesaid three
orders is the subject matter of challenge in Writ
Petition (Civil) No. 1309 of 2018 filed by Shri
Alok Kumar Verma as well as in Writ Petition
(Civil) No. 1315 of 2018 filed by Common Cause
which claims to be a registered society established/
founded in the year 1980 by one late Shri H.D.
Shourie for the purposes of ―ventilating the
common problems of the people and securing
their resolution‖.
7. In addition to interference with the aforesaid
three orders, in the writ petition filed by Common
Cause, further prayers have been made, inter alia,
seeking removal of one Mr. Rakesh Asthana,
Special Director, CBI (respondent no. 4 in Writ
Petition (Civil) No.1315 of 2018) from the CBI
and for constituting a Special Investigating Team
(―SIT‖ for short) to go into the charges of
corruption against the officials of the CBI and
also the FIR lodged against Mr. Rakesh Asthana,
Special Director, CBI, details of which are
mentioned in the writ petition filed by Common
Cause.
8. The order of the CVC dated 23rd October, 2018
is fairly long and elaborate. What is essentially
stated therein is that a complaint dated 24th
August, 2018 was forwarded to the CVC by the
Cabinet Secretary by letter dated 31st August,
2018 which, prima facie, revealed charges of
corruption against the Director, CBI, Shri Alok
Kumar Verma. The CVC considered it
worthwhile to take note of the contents thereof
and had sought the explanation/comments of the
Director, CBI along with the relevant record(s).
According to the CVC, instead of cooperating in
the matter, the Director, CBI had sought
information as to the identity of the person who
had complained to the Cabinet Secretary in that
regard and had gone to the extent of bringing
specific allegations against the Special Director,
CBI Shri Rakesh Asthana. Details of several
cases of corruption wherein the Special Director,
Law Animated World, 15 January 2019
16
(2019) 1 LAW
CBI was alleged to be involved were also brought
to the notice of the CVC by Shri Alok Kumar
Verma.
9. In the order of the CVC dated 23rd October,
2018 it is further recorded that Shri Rakesh
Asthana, Special Director, CBI had also made
serious allegations against Shri Alok Kumar
Verma, Director, CBI and that, in fact, on 15th
October, 2018, the CBI had registered RC 13A of
2018 of AC III, New Delhi under Section 7 and
13(2) read with 13(1)(d) and Section 7A of the
PC Act as amended in 2018 against Shri Asthana.
The said RC case was stated to have been
registered on the complaint of one Satish Babu
Sana who is an accused in a case investigated by
Special Director, CBI. At the same time, the CVC
also took note of the fact that Mr. Rakesh
Asthana, Special Director, CBI had recorded
information received from various sources that
huge amounts of bribe were given to the Director,
CBI to avoid taking any action against Satish
Babu Sana.
10. It is in these circumstances, which may be in
the least be termed as unfortunate, that the CVC
had thought it proper to invoke its powers under
Sections 8(1)(a), 8(1)(d) and 11 of the CVC Act
to pass the impugned order dated 23rd October,
2018 divesting the Director, CBI of his powers,
functions, duties, etc., details of which have
already been noted.
11. The two further orders of the Government of
India, Ministry of Personnel, Public Grievances
and Pensions, Department of Personnel &
Training of the same date i.e. 23rd October, 2018
were consequential to the order passed by the
CVC, as stated above.
12. As already seen, it is the legality, validity and
correctness of the aforesaid orders and the action
spelt out therein that has been challenged before
us in the two writ petitions as well as in the
Interlocutory Applications filed by various
applicants, details of which will be noted in due
course.
13. It is at the very threshold of the present
discourse that a brief history of the organization
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
called the CBI may be recalled. The police force
in the country was initially governed by the Police
Act, 1861. Section 3 of the said Act had made the
following provision :
―3. Superintendence in the State Government.
The superintendence of the police throughout a
general police district shall vest in and shall be
exercised by the State Government to which
such district is subordinate; and except as
authorized under the provisions of this Act, no
person, officer, or Court shall be empowered
by the State Government to supersede, or
control any police functionary.‖
14. The DSPE Act was enacted in the year 1946 to
carve out an exception to the Police Act, 1861. The
same is evident from Section 2(1) which is in the
following terms:
―2. Constitution and powers of police establishment.
(1) Notwithstanding anything in the Police
Act, 1861 (5 of 1861) the Central Government
may constitute a special police force to be
called the Delhi Special Police Establishment
for the investigation in any Union Territory of
offences notified under Section 3.‖
15. Initially the administration of the Delhi
Special Police Establishment was governed by
the provisions of Section 4 of the DSPE Act
which contemplated the following:
―4. Superintendence and administration of SPE:
1) The superintendence of the Delhi Special
Police Establishment shall vest in the Central
Government.
(2) The administration of the said police
establishment shall vest in an officer appointed
in this behalf by the Central Government who
shall exercise in respect of that police
establishment such of the powers exercisable
by an Inspector General of Police in respect of
the police force in a State, as the Central
Government may specify in this behalf.‖
16. It is the Delhi Special Police Establishment
brought into existence by DSPE Act, 1946 which
today is known as the CBI. The origin of the
organization has been succinctly traced by this
Court in Vineet Narain and others v. Union of India
17
ISC-3
and another1 and the relevant details are available
in paragraphs 30 and 31 of the report of this
Court in Vineet Narain (supra). Shortly put and as
already observed, investigation of anticorruption
cases; economic offences and ordinary crimes of
special importance have come to be vested in the
CBI which exercises its jurisdiction in the
territory of all States and Union Territories (with
consent of the State Governments).
17. The organization i.e. CBI has grown over the
years in its role, power and importance and today
has become the premier investigative and prosecution
agency of the country. The high stature and the
preeminent position that the institution has
acquired is largely on account of a strong
perception of the necessity of having such a
premier agency. Such a perception finds
reflection in the conscious attempts of the
Government of the day to introduce reforms, from time
to time, so as to enable the institution to reach greater
heights in terms of integrity, independence and
confidence. A close look at such attempts will now
be in order.
18. In Vineet Narain (supra) such developments
have already been taken note of in detail. The
recommendations of the Committee headed by
Shri N.N. Vohra constituted by Government
Order No. S/7937/SS(ISP)/93 dated 9th July, 1993
and those of the Independent Review Committee
(IRC) constituted by Government Order No.
226/2/97AVDII dated 8th September, 1997 has
had a major role to play in giving the CBI and the
CVC their present shape and form and the pivotal
role and position that these two bodies have come
to occupy in the system of law enforcement in the
country. Incidentally, the CVC had been in
existence as an administrative body on being
established by Resolution No. 24/7/64AVD dated
11th February, 1964 issued by the Central
Government until conferment of statutory status
by the CVC Act, 2003 on the basis of
recommendations of the IRC, summary of which
with regard to the CBI and CVC may now be
taken note of.
1
(1998) 1 SCC 226
Law Animated World, 15 January 2019
ISC-4 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
―SUMMARY OF RECOMMENDATIONS
I. CBI and CVC
1. CVC to be conferred statutory status; appointment
of Central Vigilance Commissioner to be
made under the hand and seal of the
President (para 4.2)
2. Constitution of a Committee for selection of
CVC (para 4.3)
3. CVC to overview CBI‘s functioning (para 5)
4. CBI‘s reporting to Government to be
streamlined without diluting its functional
autonomy (para 3.3)
5. CVC to have a separate section in its Annual
Report on the CBI‘s functioning after the
supervisory function is transferred to it (para
6)
6. Constitution of a Selection Committee for
identifying a panel of names for selection of
Director CBI; final selection to be made by
ACC from such panel (para 8.2)
7. Central Government to pursue with the State
Governments to set up credible mechanism
for selection of Police Chief (para 8.3)
8. Director CBI to have a minimum tenure of 2
years (para 8.4)
9. Transfer of incumbent Director CBI would need
endorsement of the Selection Committee (para 8.5)
10. Director CBI to ensure full freedom for
allocation of work within the Agency,
including constitution of investigation teams
(para 8.6)
11. Selection/extension of tenure of officers up to
the level of Joint Director (JD) to be decided
by a Board under Central Vigilance
Commissioner; JD and above would need the
approval of ACC (para 8.7)
12. Change in the existing Tenure Rules not
recommended (para 8.8)
13. Proposals for improvement of infrastructure,
methods of investigation, etc., to be decided
urgently (para 8.9.2)
14. No need for creation of a permanent core
group in the CBI (para 8.9.3)
15. Severe disciplinary action against officers
who deviate from prescribed investigation
procedures (para 9.1)
Law Animated World, 15 January 2019
18
(2019) 1 LAW
16. Director CBI to be responsible for ensuring
time-limits for filing charge-sheets in courts
(para 9.2)
17. Document on CBI‘s functioning to be
published within three months (para 9.4)
18. Essential to protect officers at the decision-
making levels from vexatious enquiries/
prosecutions (para 10.6)
19. Secretaries to adhere strictly to prescribed
timeframes for grant of permission for
registration of PE/RC. CBI to be free to
proceed if decision not conveyed within the
specified time (para 10.9)
20. Secretary of Administrative Ministry to
convey a decision regarding registration of
PE/RC within 2 months of receipt of request.
If not satisfied with decision, Director CBI
free to make fresh reference to the
Committee headed by Cabinet Secretary
within a period of four weeks and the latter
to decide thereon within a period of four
weeks (para 10.10)
21. Protection under the Single Directive not to
cover offences like bribery, when prima facie
established in a successful trap (para 10.12)
22. Cases of disproportionate assets of Central
Government and All India Services Officers
to be brought within the ambit of the Single
Directive (para 10.13)
23. Time limit of 3 months for sanction for
prosecution. Where consultation is required
with the Attorney General or the Solicitor
General, additional time of one month could
be allowed (paras 10.14 and 10.15)
24. Government to undertake a review of the
various types of offences notified for
investigation by the CBI to retain focus on
anticorruption activities which is its primary
objective (para 11.1)
25. Cases falling within the jurisdiction of the State
Police which do not have inter-State or
international ramifications should not be handed
over to CBI by States/courts (para 11.2)
26. Government to establish Special Courts for
the trial of CBI cases (11.3)
27. Severe action against officials found guilty of
highhandedness; prompt action against those
officials chastised by the courts (para 11.4)
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
28. Director CBI to conduct regular appraisal of
personnel to weed out the corrupt and
inefficient, and maintain strict discipline
within the organization (para 11.5)‖
19. In paragraph 58 of the report of this Court in
Vineet Narain (supra) directions under Article 142
of the Constitution of India which were to hold
the field till such time that the necessary statutory
enactments are brought into force, came to be
issued by this Court. Paragraph 58 of the report of
this Court in Vineet Narain (supra) insofar as
CVC and CBI are concerned is in the following
terms:
“58. As a result of the aforesaid discussion, we
hereby direct as under:
I. CENTRAL BUREAU OF INVESTIGATION
(CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)
1. The Central Vigilance Commission (CVC)
shall be given statutory status.
2. Selection for the post of Central Vigilance
Commissioner shall be made by a Committee
comprising the Prime Minister, Home
Minister and the Leader of the Opposition
from a panel of outstanding civil servants
and others with impeccable integrity, to be
furnished by the Cabinet Secretary. The
appointment shall be made by the President
on the basis of the recommendations made
by the Committee. This shall be done
immediately.
3. The CVC shall be responsible for the efficient
functioning of the CBI. While Government
shall remain answerable for the CBI‘s
functioning, to introduce visible objectivity
in the mechanism to be established for over-
viewing the CBI‘s working, the CVC shall be
entrusted with the responsibility of superintendence
over the CBI’s functioning. The CBI shall report
to the CVC about cases taken up by it for
investigation; progress of investigations;
cases in which charge-sheets are filed and
their progress. The CVC shall review the
progress of all cases moved by the CBI for
sanction of prosecution of public servants
which are pending with the competent
authorities, specially those in which sanction
has been delayed or refused.
19
ISC-5
4. The Central Government shall take all measures
necessary to ensure that the CBI functions
effectively and efficiently and is viewed as a
nonpartisan agency.
5. The CVC shall have a separate section in its
Annual Report on the CBI‘s functioning after
the supervisory function is transferred to it.
6. Recommendations for appointment of the
Director, CBI shall be made by a Committee
headed by the Central Vigilance
Commissioner with the Home Secretary and
Secretary (Personnel) as members. The views
of the incumbent Director shall be considered
by the Committee for making the best choice.
The Committee shall draw up a panel of IPS
officers on the basis of their seniority,
integrity, experience in investigation and
anticorruption work. The final selection shall
be made by the Appointments Committee of
the Cabinet (ACC) from the panel
recommended by the Selection Committee. If
none among the panel is found suitable, the
reasons thereof shall be recorded and the
Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of
two years, regardless of the date of his
superannuation. This would ensure that an
officer suitable in all respects is not ignored
merely because he has less than two years to
superannuate from the date of his
appointment.
8. The transfer of an incumbent Director, CBI in
an extraordinary situation, including the need
for him to take up a more important
assignment, should have the approval of the
Selection Committee.
9. The Director, CBI shall have full freedom for
allocation of work within the agency as also
for constituting teams for investigations. Any
change made by the Director, CBI in the
Head of an investigative team should be for
cogent reasons and for improvement in
investigation, the reasons being recorded.
10. Selection/extension of tenure of officers up to
the level of Joint Director (JD) shall be
decided by a Board comprising the Central
Vigilance Commissioner, Home Secretary
and Secretary (Personnel) with the Director,
CBI providing the necessary inputs. The
Law Animated World, 15 January 2019
ISC-6 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
extension of tenure or premature repatriation
of officers up to the level of Joint Director
shall be with final approval of this Board.
Only cases pertaining to the appointment or
extension of tenure of officers of the rank of
Joint Director or above shall be referred to
the Appointments Committee of the Cabinet
(ACC) for decision.
11. Proposals for improvement of infrastructure,
methods of investigation, etc. should be
decided urgently. In order to strengthen
CBI‘s in-house expertise, professionals from
the Revenue, Banking and Security sectors
should be inducted into the CBI.
12. The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI‘s functioning. It is
imperative that the CBI adheres scrupulously
to the provisions in the Manual in relation to
its investigative functions, like raids, seizure
and arrests. Any deviation from the
established procedure should be viewed
seriously and severe disciplinary action taken
against the officials concerned.
13. The Director, CBI shall be responsible for
ensuring the filing of charge-sheets in courts
within the stipulated time-limits, and the
matter should be kept under constant review
by the Director, CBI.
14. A document on CBI‘s functioning should be
published within three months to provide the
general public with a feedback on
investigations and information for redress of
genuine grievances in a manner which does
not compromise with the operational
requirements of the CBI.
15. Time-limit of three months for grant of
sanction for prosecution must be strictly
adhered to. However, additional time of one
month may be allowed where consultation is
required with the Attorney General (AG) or
any other law officer in the AG‘s office.
16. The Director, CBI should conduct regular
appraisal of personnel to prevent corruption
and/or inefficiency in the agency.‖
20. What followed thereafter is the enactment of
the CVC Act, 2003. The salient features of the
CVC Act, so far as the present exercise is
concerned, are to be found in Section 4 of the
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20
(2019) 1 LAW
CVC Act which mandates that the appointment of
the Central Vigilance Commissioner and the
Vigilance Commissioners shall be made by the
President on the recommendation of a Committee
consisting of : (a) the Prime Minister; (b) the
Minister of Home Affairs and (c)the Leader of
the Opposition in the House of the People.
Section 6 of the CVC Act contemplates the
removal of Central Vigilance Commissioner and
a Vigilance Commissioner only by order of the
President on the ground of proved misbehaviour
or incapacity as may be found by the Supreme
Court of India on a reference being made by the
President to the Court. However, under
subsection (2) of Section 6 of the CVC Act there
is a power in the President of suspension from
office pending inquiry on the reference made to
the Supreme Court. Subsection (3) of Section 6 of
the CVC Act also empowers the President to
remove from office the Central Vigilance
Commissioner or any Vigilance Commissioner in
the following cases:
―(a) is adjudged an insolvent; or
(b) has been convicted of an offence which, in
the opinion of the Central Government,
involves moral turpitude; or
(c) engages during his term of office in any paid
employment outside the duties of his office;
or
(d) is, in the opinion of the President, unfit to
continue in office by reason of infirmity of
mind or body; or
(e) has acquired such financial or other interest
as is likely to affect prejudicially his functions
as a Central Vigilance Commissioner or a
Vigilance Commissioner.‖
21. Though the Director, CBI is to be appointed
by the Central Government on the
recommendation of a similar High Power
Committee, no provision with regard to interim
suspension or removal is to be found in the DSPE
Act, 1946, notwithstanding the fact that the said
Act i.e. DSPE Act was amended by the CVC Act,
2003. The CVC Act, 2003 and the amendments
made in the DSPE Act, 1946 were clearly made
to bring the provisions thereof in proximity to the
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
directions issued by this Court in Vineet Narain
(supra) so far as the CVC and the CBI is
concerned.
22. Section 8 of the CVC Act deals with
functions and powers of the CVC whereas
Section 11 deals with the power of the CVC with
regard to inquiries. Both the powers vested by the
aforesaid two provisions of the CVC Act i.e.
Section 8 and Section 11 having been invoked in
the present case to support and justify the
impugned actions it will be necessary to extract
and notice the said provisions in extenso:
―8. Functions and powers of
Central Vigilance Commission.
1) The functions and powers of the Commission
shall be to –
a) exercise superintendence over the
functioning of the Delhi Special Police
Establishment in so far as it relates to the
investigation of offences alleged to have
been committed under the Prevention of
Corruption Act, 1988 (49 of 1988), or an
offence with which a public servant
specified in subsection (2) may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial;
(b) give directions to the Delhi Special Police
Establishment for the purpose of
discharging the responsibility entrusted to
it under subsection (1) of section 4 of the
Delhi Special Police Establishment Act,
1946 (25 of 1946):
Provided that while exercising the powers
of superintendence under clause (a) or
giving directions under this clause, the
Commission shall not exercise powers in
such a manner so as to require the Delhi
Special Police Establishment to
investigate or dispose of any case in a
particular manner;
(c) inquire or cause an inquiry or
investigation to be made on a reference
made by the Central Government wherein
it is alleged that a public servant being an
employee of the Central Government or a
corporation established by or under any
Central Act, Government company,
society and any local authority owned or
21
ISC-7
controlled by that Government, has
committed an offence under the
Prevention of Corruption Act, 1988 (49 of
1988) or an offence with which a public
servant may, under the Code of Criminal
Procedure, 1973 (2 of 1974), be charged
at the same trial;
(d) inquire or cause an inquiry or
investigation to be made into any
complaint against any official belonging
to such category of officials specified in
subsection (2) wherein it is alleged that he
has committed an offence under the
Prevention of Corruption Act, 1988 (49 of
1988) and an offence with which a public
servant specified in sub-section (2) may,
under the Code of Criminal Procedure,
1973 (2 of 1974), be charged at the same
trial;
(e) review the progress of investigations
conducted by the Delhi Special Police
Establishment into offences alleged to
have been committed under the
Prevention of Corruption Act, 1988 (49 of
1988) or the public servant may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial;
(f) review the progress of applications
pending with the competent authorities
for sanction of prosecution under the
Prevention of Corruption Act, 1988 (49 of
1988);
(g) tender advice to the Central Government,
corporations established by or under any
Central Act, Government companies,
societies and local authorities owned or
controlled by the Central Government on
such matters as may be referred to it by
that Government, said Government
companies, societies and local authorities
owned or controlled by the Central
Government or otherwise;
(h) exercise superintendence over the
vigilance administration of the various
Ministries of the Central Government or
corporations established by or under any
Central Act, Government companies,
societies and local authorities owned or
controlled by that Government:
Law Animated World, 15 January 2019
ISC-8 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
Provided that nothing contained in this
clause shall be deemed to authorize the
Commission to exercise superintendence
over the Vigilance administration in a
manner not consistent with the directions
relating to vigilance matters issued by the
Government and to confer power upon the
Commission to issue directions relating to
any policy matters;
2. The persons referred to in clause (d) of
subsection (1) are as follows:—
(a) members of All India Services serving in
connection with the affairs of the Union
and Group ‗A‘ officers of the Central
Government;
(b) such level of officers of the corporations
established by or under any Central Act,
Government companies, societies and
other local authorities, owned or
controlled by the Central Government, as
that Government may, by notification in
the Official Gazette, specify in this
behalf:
Provided that till such time a notification
is issued under this clause, all officers of
the said corporations, companies,
societies and local authorities shall be
deemed to be the persons referred to in
clause (d) of subsection (1).
(c) on a reference made by the Lokpal under
proviso to subsection (1) of Section 20 of
the Lokpal and Lokayuktas Act, 2013 (1
of 2014), the persons referred to in clause
(d) of subsection (1) shall also include –
(i) members of Group B, Group C and
Group D services of the Central
Government;
(ii) such level of officials or staff of the
corporations established by or under
any Central Act, Government
companies, societies and other local
authorities, owned or controlled by the
Central Government, as that
Government may, by notification in the
Official Gazette, specify in this behalf:
Provided that till such time a notification is
issued under this clause, all officials or staff
of the said corporations, companies,
societies and local authorities shall be
Law Animated World, 15 January 2019
22
(2019) 1 LAW
deemed to be the persons referred in clause
(d) of subsection (1).
xxx xxx xxx
―11. Power relating to inquiries. –
The Commission shall, while conducting any
inquiry referred to in clauses (b) and (c) of
subsection (1) of section 8, have all the powers
of a civil court trying a suit under the Code of
Civil Procedure, 1908 (5 of 1908) and in
particular, in respect of the following matters,
namely:
a. summoning and enforcing the attendance of
any person from any part of India and
examining him on oath;
b. requiring the discovery and production of
any document;
c. receiving evidence on affidavits;
d. requisitioning any public record or copy
thereof from any court or office;
e. issuing commissions for the examination of
witnesses or other documents; and
f. any other matter which may be prescribed.‖
23. The provisions of the DSPE Act as amended
by Act No. 45 of 2003 (The Central Vigilance
Act, 2003) and Act No.1 of 2014 (Lokpal and
Lokayuktas Act, 2013) may also require a
specific notice. Sections 4, 4A and 4B introduced
by the aforesaid amendments, on which elaborate
arguments have been made by the contesting
parties, provide as follows:
―4. Superintendence and administration of Special
Police Establishment. –
(1) The superintendence of the Delhi Special
Police Establishment in so far as it relates to
investigation of offences alleged to have been
committed under the Prevention of Corruption
Act, 1988 (49 of 1988), shall vest in the
Commission.
(2) Save as otherwise provided in subsection (1),
the superintendence of the said police
establishment in all other matters shall vest in the
Central Government.
(3) The administration of the said police
establishment shall vest in an officer appointed
in this behalf by the Central Government
(hereinafter referred to as the Director) who shall
exercise in respect of that police establishment
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
such of the powers exercisable by an Inspector-
General of Police in respect of the police force in
a State as the Central Government may specify in
this behalf.
4A. Committee for appointment of Director. –
(1) The Central Government shall appoint the
Director on the recommendation of the
Committee consisting of –
(a) the Prime Minister – Chairperson;
(b) the Leader of Opposition recognised as
such in the House of the People or where
there is no such Leader of Opposition,
then the Leader of the single largest
Opposition Party in that House – Member;
(c) the Chief Justice of India or Judge Of the
Supreme Court nominated by him –
Member;
(2) No appointment of a Director shall be invalid
merely by reason of any vacancy or absence of a
Member in the Committee.
(3) The Committee shall recommend a panel of
officers –
(a) on the basis of seniority, integrity and
experience in the investigation of
anticorruption cases; and
(b) chosen from amongst officers belonging
to the Indian Police Service constituted
under the All India Services Act, 1951
(61 of 1951), for being considered for
appointment as the Director.
4B. Terms and conditions of service of Director. –
(1) The Director shall, notwithstanding anything
to the contrary contained in the rules relating to
his conditions of service, continue to hold office
for a period of not less than two years from the
date on which he assumes office.
(2) The Director shall not be transferred except
with the previous consent of the Committee
referred to in subsection (1) of section 4A.‖
24. Shri F.S. Nariman and Shri Dushyant Dave,
learned Senior Counsels, who have argued the
case for Shri Alok Kumar Verma, Director, CBI
and Common Cause have contended that the
history of the institutional framework
surrounding the CBI leading to the statutory
enactments in question and the views expressed
in the judgment of this Court in Vineet Narain
23
ISC-9
(supra), including the operative directions under
Article 142 of the Constitution, can leave no
doubt that the judicial endeavour should/must
always be to preserve, maintain and further the
integrity, independence and majesty of the
institution i.e. CBI. This is the core intent behind
the statutory enactments and the amendments
thereto, details of which have been noticed. The
Director of the CBI is the centre of power in an
abundantly powerful organization having
jurisdiction to investigate and to prosecute key
offences and offenders having great ramifications
and consequences on public life. There can be no
manner of doubt that the Director who has been
given a minimum assured tenure of ―not less than
two years‖ must be insulated from all external
interference if the CBI has to live up to the role
and expectations of the legislature and enjoy
public confidence to the fullest measure. This is
how the provisions of the cognate legislations i.e.
the CVC Act, 2003 and DPSE Act, 1946 (as
amended), must be interpreted, according to the
learned counsels. It is specifically urged that the
embargo under Section 4B(2) of the DSPE Act
which mentions that the Director shall not be
transferred except with the previous consent of
the Committee must be construed in the broadest
perspective to include any attempt to divest the
Director, CBI of his powers, functions, duties,
etc. in any manner whatsoever and not necessarily
relatable to the transfer of the incumbent as is
understood in ordinary parlance. According to the
learned counsels, unless such a meaning is
attributed to the provisions of Section 4B(2) of
the DSPE Act, the legislative intent would be
rendered futile and so would be the entire judicial
exercise culminating in the operative directions of
this Court in Vineet Narain (supra).
25. So construed, according to the learned
counsels, the exercise of power in the present case is
blatantly and patently flawed. There can be no legal
recognition of the action taken on the strength of
the impugned orders which have been notified
without seeking the previous consent of the Committee
for appointment of Director, CBI constituted under
Section 4A(1), of the DSPE Act, 1946.
Law Animated World, 15 January 2019
ISC-10 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
26. The alternative argument made is that if the
provisions of Section 4B(2) of the DSPE Act are
to be ―narrowly‖ construed by understanding the
word ―transfer‖ as is normally understood in
service jurisprudence, the ultimate validity of the
impugned exercise will have to be tested by the
adequacy and sufficiency of reasons to justify a
premature curtailment of the tenure of the
Director, CBI. No such justification, according to
the learned counsels, exists. In this regard, it has
been pointed out that the allegations against the
Director, CBI made by Special Director, CBI Shri
Rakesh Asthana and the purported inquiry into
such allegations by the CVC and the
disinvestment of powers during the interregnum
i.e. pendency of the inquiry are wholly unjustified
actions prompted by collateral reasons.
Interference, in the larger public interest, by this
Court in the exercise of powers of judicial review
under Article 32 of the Constitution of India
would therefore be called for.
27. The aforesaid argument has been countered
by Shri K.K. Venugopal, learned Attorney
General appearing for the Union of India who
contends that the role of the Committee under
Section 4A(1) of the DSPE Act is limited to
making recommendations on the basis of which
the Central Government is to make the
appointment. According to the learned Attorney,
once the recommendation is made by the
Committee and the appointment is made, the
Committee becomes functus officio. Reliance has
been placed in this regard on Shankarsan Dash v.
Union of India2 and Jai Singh Dalal and others v.
State of Haryana & another3 to contend that when
the law does not recognize in any incumbent,
who may have been recommended, a right to be
appointed it cannot be contended that after the
appointment is made the Committee constituted
to make recommendations for appointment has to
be consulted in all cases of disinvestment of
power, even beyond what is specifically provided
2
(1991) 3 SCC 47
3
1993 Supp. (2) SCC 600
Law Animated World, 15 January 2019
24
(2019) 1 LAW
for by Section 4B(2) of the DSPE Act. Section
4B(2), it is pointed out provides/mandates the
requirement of previous consent only in cases of
transfer of the Director which is also what had
been directed by this Court in paragraph 58(8) of
the report in Vineet Narain (supra). The Learned
Attorney has further submitted that the present is
not a case of transfer so as to require the previous
consent of the Committee under Section 4B(2) of
the DSPE Act. Reliance has also been placed on
the provisions of Section 16 of the General
Clauses Act, 1897 to persuade the Court to
recognise in the Central Government a power to
divest the Director, CBI of his powers, functions,
duties, etc. According to the learned Attorney the
power to divest must be acknowledged to be the logical
corollary of the power of appointment of the Director,
CBI which is vested in the Central Government.
28. On the other hand, Shri Tushar Mehta,
learned Solicitor General appearing for the CVC
has argued that merely on the appointment of a
Member of the Indian Police Service as the
Director, CBI, the incumbent does not cease to be
a public servant/government servant. He
continues to be, according to the learned Solicitor
General, a civil servant; a member of the Indian
Police Service amenable to all service conditions
as applicable and also to the disciplinary control
of the Competent Authority. The only exception
in this regard, according to the learned Additional
Solicitor General, is provided by Section 4B(1) of
the DSPE Act which provides for a fixed tenure
of the Director. It is only the Rules/conditions of
service so far as the retirement is concerned that
stands diluted/affected by the provisions of
Section 4B(1) of the DSPE Act and none other.
29. In brief, these are the broad submissions of
the contesting parties. It has been further
supplemented by the learned counsels for the
petitioner that on a meaningful interpretation of
the provisions of the relevant statutes the Court
should take the view that what is provided therein
is a complete insulation of the incumbent holding
the post of Director of the CBI and no action
affecting his continuance and functioning can be
taken except with the previous consent of the
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
Committee under Section 4A of the DSPE Act. It
is only after the incumbent ceases to hold the post
of Director, upon transfer or otherwise, made
with the previous consent of the Committee, that
the disciplinary control over such incumbent as a
civil servant can be exercised by the Central
Government.
30. The contentions advanced by the rival parties
would require the Court to consider two issues to
determine the validity of the impugned orders. The
first is the competence of the CVC and the Government
of India to divest the Director, CBI of all his powers,
functions, duties, supervisory role, etc. without
obtaining the prior consent of the Committee
constituted under Section 4A(1) of the DSPE Act to
make recommendations for appointment of the
Director, CBI. Learned counsels for the petitioners
are emphatic in their contentions that obtaining
such prior consent is the inbuilt mandate under
the Statute which flows from the operative
directions issued by this Court in paragraph 58 of
Vineet Narain (supra). Therefore, according to the
learned counsels for the petitioners, the impugned
orders passed without obtaining prior consent of the
Committee are non est in law and no other issue
really need be gone into in the present case.
31. The above contention raises a pure question of
law answerable on application of known and established
principles of law including interpretation of the
provisions of the CVC Act, 2003 and the DSPE
Act, 1946 and further in the light of such
legislative intent that can be culled out in making
the enactments in question. Not only do we prefer
to deal with the said question in the first instance
for the above stated reason but such an exercise
becomes obligatory in view of the jurisdictional
questions that are inbuilt therein. On the aforesaid
basis the second question raised can be relegated to
a later stage of consideration, which question, we
may indicate is one relating to the sufficiency/
adequacy or even the relevance of the reasons that had
prompted the CVC and the Government of India to take
the impugned decisions, a question that may
legitimately call for an answer only in the event
of our disagreeing with the contentions advanced
on behalf of the petitioner on the first issue
namely that the divestment of power and
25
ISC-11
authority of the Director, CBI can only be with
the prior consent of the Committee.
32. There is no manner of doubt that the
enactment of the CVC Act, 2003 and the
amendments made by the said enactment, inter
alia, in the DSPE Act (by Section 26 of the CVC
Act, 2003) are a sequel to the operative directions
of this Court in paragraph 58 of Vineet Narain
(supra). The legislature in its wisdom had not
considered the necessity of tempering down the
directions of this Court in Vineet Narain (supra) in
any manner whatsoever. The mode and manner of
appointment of Central Vigilance Commissioner
and Vigilance Commissioners as well as that of
the Director, CBI as spelt out by this Court in
Vineet Narain (supra) has been scrupulously
followed by Parliament. In fact, at this stage, we
may even take note of the fact that Parliament on
its own in amending Section 4A of the DSPE Act
by the Lokpal and Lokayuktas Act, 2013 (Act
No.1 of 2014) has gone a step further to give
effect to the directions of this Court made in
Vineet Narain (supra) inasmuch as the object for
change of the Committee for making
recommendations for appointment of the
Director, CBI has been stated to be the necessity
―to provide a High Power Selection Committee for
selection of Director of the Delhi Special Police
Establishment‖.
33. The Court, in its bid to understand the true
legislative intention behind the statutory
enactments in question, cannot be oblivious of the
views expressed by this Court in Vineet Narain
(supra) leading to the operative directions in para
58 that formed the basis of the legislative exercise
in question. The said views must be understood to
have been considered fully by Parliament before
engrafting the consequential directions contained
in paragraph 58 of Vineet Narain (supra) in the
form of statutory enactments, details of which
have been noticed earlier. In this regard,
paragraphs 3 and 48 of the report of this Court in
Vineet Narain (supra) must hold a special field so
as to deserve a recall of the contents thereof
which are in the following terms:
Law Animated World, 15 January 2019
ISC-12 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
―3. This experience revealed to us the need for
the insulation of these agencies from any
extraneous influence to ensure the continuance of
the good work they have commenced. It is this
need which has impelled us to examine the
structure of these agencies and to consider the
necessary steps which would provide permanent
insulation to the agencies against extraneous
influences to enable them to discharge their
duties in the manner required for proper
implementation of the rule of law. Permanent
measures are necessary to avoid the need of
every matter being brought to the court for taking
ad hoc measures to achieve the desired results.
This is the occasion for us to deal with the
structure, constitution and the permanent
measures necessary for having a fair and
impartial agency. The faith and commitment to the
rule of law exhibited by all concerned in these
proceedings is the surest guarantee of the survival of
democracy of which rule of law is the bedrock. The
basic postulate of the concept of equality: “Be you ever
so high, the law is above you,” has governed all steps
taken by us in these proceedings.
xxx xxx xxx
48. In view of the common perception shared by
everyone including the Government of India and
the Independent Review Committee (IRC) of the
need for insulation of the CBI from extraneous
influence of any kind, it is imperative that some
action is urgently taken to prevent the
continuance of this situation with a view to
ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the
Constitution. The right to equality in a situation
like this is that of the Indian polity and not
merely of a few individuals. The powers
conferred on this Court by the Constitution are
ample to remedy this defect and to ensure
enforcement of the concept of equality.‖
34. These are the basic facts that cannot be
overlooked while gathering the intention of the
legislature in making the provisions contained in
Section 4A and Section 4B of the DSPE Act. An
in-depth consideration of the matter leaves us
with no doubt that the clear legislative intent in
bringing the aforesaid provisions to the statute book are
for the purpose of ensuring complete insulation of the
office of the Director, CBI from all kinds of extraneous
Law Animated World, 15 January 2019
26
(2019) 1 LAW
influences, as may be, as well as for upholding the
integrity and independence of the institution of the CBI
as a whole.
35. There are certain other relevant facts that
cannot be ignored. The provisions of various
State enactments (Police Act), as for example
Uttrakhand Police Act 2007, following the
decision of this Court in Prakash Singh And
Others v. Union of India And Others4, while
providing for a tenure of two years to the Director
General of Police of the State expressly
contemplates removal of the incumbent before
expiry of the of the tenure on certain specified
grounds [Section 20 (4) & (5)]. Similarly, Section
6 of the CVC Act, which has been extracted
above, specifically contemplates certain interim
measures against the Central Vigilance
Commissioner or a Vigilance Commissioner
pending consideration by the Supreme Court of
the reference made by the President to the Court
for removal of any such incumbent. Removal of
any of the aforesaid incumbents holding any of
the aforesaid posts is also contemplated on
certain contingencies occurring as spelt out by
subsection (3) of Section 6 of the CVC Act. No
such provision has been engrafted so far as the
office of the Director, CBI is concerned except
what is contained in Section 4B(2) of the DSPE
Act, namely, that ―the Director shall not be
transferred except with the previous consent of the
Committee referred to in subsection (1) of section
4A‖. As already noticed, Section 4B including
subsection (2) thereof of the DSPE Act, as it
exists on date, were brought in by the same
legislation i.e. CVC Act (Act No. 45 of 2003).
36. If the legislative intent would have been to
confer in any authority of the State a power to take
interim measures against the Director, CBI thereby
affecting his functioning, surely, the legislation would
have contained enabling provisions to that effect and
consequently would have been differently worded and
drafted. It is against this backdrop that the words
―transferred except with the previous consent of
the Committee‖ mentioned in Section 4B(2) of
4
(2006) 8 SCC 1
(Go to p. 67)
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague] F-1

(2019) 1 LAW F-1 (ICJ-Hague) negotiate Bolivia‟s sovereign access to the Pacific
Ocean, the Court recalls that, in its submissions,
INTERNATIONAL COURT OF
Bolivia requested the Court to adjudge and declare
JUSTICE AT THE HAGUE that “Chile has the obligation to negotiate with
Monday, 1 October 2018 Bolivia in order to reach an agreement granting
(General List No. 153/2018) Bolivia a fully sovereign access to the Pacific
BETWEEN: Ocean”. In this regard, as the Court noted in its
Judgment of 24 September 2015 on the preliminary
BOLIVIA … Applicant(s) objection raised by Chile, “Bolivia does not ask the Court
v. to declare that it has a right to sovereign access to the sea”.
CHILE … Respondent. What Bolivia claims in its submissions is that Chile is

Citation: Bolivia v. Chile under an obligation to negotiate “in order to reach an
Obligation to Negotiate Access to the Pacific Ocean agreement granting Bolivia a fully sovereign access” . As a
(Bolivia v. Chile) more general point, the Court observes that, while
(2019) 1 LAW F-1 (ICJ-Hague) States are free to resort to negotiations or put an end
to them, they may agree to be bound by an
***
obligation to negotiate. In that case, States are
PRESS RELEASE
Unofficial required under international law to enter into
No. 2018/49 negotiations and to pursue them in good faith.
1 October 2018 II. THE ALLEGED LEGAL BASES OF AN
Obligation to Negotiate Access to the Pacific Ocean OBLIGATION TO NEGOTIATE BOLIVIA‟S
(Bolivia v. Chile) SOVEREIGN ACCESS TO THE PACIFIC OCEAN
The Court finds that the Republic of Chile did not The Court then analyses the various legal bases
undertake a legal obligation to negotiate a sovereign access put forward by Bolivia to support its claim that
to the Pacific Ocean for the Plurinational State of Bolivia
Chile has an obligation to negotiate Bolivia‟s
THE HAGUE, 1 October 2018. The International sovereign access to the Pacific Ocean.
Court of Justice (ICJ), the principal judicial organ
1. Bilateral agreements
of the United Nations, today delivered its Judgment
in the case concerning Obligation to Negotiate Access to the The Court recalls that Bolivia‟s claim rests mainly on
the alleged existence of one or more bilateral agreements
Pacific Ocean (Bolivia v. Chile). In its Judgment, which
that would impose on Chile an obligation to negotiate
is final, without appeal and binding on the Parties, the
Bolivia‟s sovereign access to the sea. Bolivia invokes a
Court – variety of instruments on which such an obligation
(1) Finds, by twelve votes to three, that the allegedly rests. In particular, it refers to: (a) the
Republic of Chile did not undertake a legal
“Acta Protocolizada”, i.e. the minutes of a meeting
obligation to negotiate a sovereign access to the
Pacific Ocean for the Plurinational State of held in January 1920 between the Minister for
Bolivia; and Foreign Affairs of Bolivia and the Minister
(2) Rejects, by twelve votes to three, the other Plenipotentiary of Chile, as well as the follow-up
final submissions presented by the Plurinational exchanges to that meeting; (b) a 1950 exchange of
diplomatic Notes between the Parties as well as a
State of Bolivia.
1961 memorandum by Chile‟s Ambassador in Bolivia ,
Reasoning of the Court Mr. Manuel Trucco; (c) a Joint Declaration signed by
I. PRELIMINARY CONSIDERATIONS the Presidents of Bolivia and Chile at Charaña on 8
Before examining the legal bases invoked by February 1975; (d) communiqués issued by the
Bolivia with regard to Chile‟s alleged obligation to Ministers for Foreign Affairs of Bolivia and Chile
in November 1986; (e) a Joint Declaration issued by

Courtesy: ICJ at https://www.icj-cij.org/en - This press the Ministers for Foreign Affairs of Bolivia and
release of the judgment by the Registry does not bind the Chile on 22 February 2000, referred to as the “Algarve
Court. Emphases in bold ours - IMS. Declaration”; and (f) a document known as the

Law Animated World, 15 January 2019

27
F-2 Bolivia v. Chile [ICJ-Hague]
“13-Point Agenda” drawn up during a meeting of a
bilateral working group in 2006.
The Court concludes that none of the above
instruments invoked by Bolivia establishes an obligation on
Chile to negotiate Bolivia‟s sovereign access to the Pacific
Ocean. Neither the “Acta Protocolizada” nor the
follow-up exchanges indicate that there was an
agreement under which Chile entered into a
commitment to negotiate Bolivia‟s sovereign access
to the sea. The 1950 exchange of Notes cannot be
considered an international agreement and the
Trucco Memorandum does not create or reaffirm
any obligation to negotiate Bolivia‟s sovereign
access to the sea. The wording of the Charaña
Declaration does not convey the existence or the
confirmation of an obligation to negotiate Bolivia‟s
sovereign access to the sea. The wording used in the
two 1986 communiqués is not the same and neither
of them includes a reference to Bolivia‟s sovereign
access to the sea. There is nothing in the “Algarve
Declaration” which imposes on Chile an obligation
to negotiate Bolivia‟s sovereign access to the sea.
Finally, while the item entitled “maritime issue”
included in the 13-Point Agenda is broad enough to
encompass the issue of Bolivia‟s sovereign access
to the sea, its mere mention does not give rise to an
obligation for the Parties to negotiate on that issue.
2. Chile‟s declarations and other unilateral acts
With respect to Bolivia‟s argument that declarations
and other unilateral acts of Chile create an obligation to
negotiate Bolivia‟s sovereign access to the sea, the Court
notes that these declarations and unilateral acts are
expressed not in terms of undertaking a legal
obligation but of willingness to enter into negotiations.
For instance, Chile declared that it was “willing to
seek that Bolivia acquire its own outlet to the sea”
and “to give an ear to any Bolivian proposal aimed
at solving its landlocked condition”. On another
occasion, Chile stated its “unchanging purpose of
studying, together with that brother country, within
the framework of a frank and friendly negotiation,
the obstacles that limit Bolivia‟s development on
account of its landlocked condition”. The wording of
these texts does not suggest that Chile has undertaken a
legal obligation. The Court therefore concludes that
an obligation to negotiate Bolivia‟s sovereign
access to the sea cannot rest on any of Chile‟s
declarations or unilateral acts.
Law Animated World, 15 January 2019
28
(2019) 1 LAW
3. ACQUIESCENCE
The Court next examines Bolivia‟s argument that
Chile has acquiesced to negotiating Bolivia‟s sovereign
access to the Pacific Ocean. It notes that Bolivia has not
identified any declaration which required a response
or reaction on the part of Chile in order to prevent
an obligation from arising. Thus, acquiescence cannot
be considered a legal basis of an obligation to negotiate
Bolivia‟s sovereign access to the sea.
4. Estoppel
Concerning Bolivia‟s argument based on
estoppel, the Court recalls that the “essential elements
required by estoppel” are “a statement or representation
made by one party to another and reliance upon it by that
other party to his detriment or to the advantage of the
party making it”. It finds that these essential conditions
are not fulfilled. Although there have been repeated
representations by Chile of its willingness to negotiate
Bolivia‟s sovereign access to the sea, such
representations do not point to an obligation to negotiate.
Bolivia has not demonstrated that it changed its position
to its own detriment or to Chile‟s advantage, in reliance on
Chile‟s representations. Therefore, estoppel cannot
provide a legal basis for Chile‟s obligation to negotiate
Bolivia‟s sovereign access to the sea.
5. Legitimate expectations
With regard to the argument by Bolivia that Chile‟s
denial of its obligation to negotiate and its refusal to engage
in further negotiations with Bolivia “frustrates Bolivia‟s
legitimate expectations”, the Court notes that
references to legitimate expectations may be found
in arbitral awards concerning disputes between a
foreign investor and the host State that apply treaty
clauses providing for fair and equitable treatment.
The Court considers that it does not follow from such
references that there exists in general international law a
principle that would give rise to an obligation on the basis
of what could be considered a legitimate expectation.
Bolivia‟s argument based on legitimate expectations
thus cannot be sustained.
6. Article 2, paragraph 3, of the Charter of the
United Nations and Article 3 of the Charter of the
Organization of American States
The Court then examines whether an obligation to
negotiate could be based on Article 2, paragraph 3, of the
United Nations Charter or Article 3 of the OAS Charter. It
recalls that, according to the former provision, “[a]ll
Members shall settle their international disputes by
peaceful means in such a manner that international peace
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
and security, and justice, are not endangered”. For the
Court, this paragraph sets forth a general duty to settle
disputes in a manner that preserves international peace
and security, and justice, but there is no indication in this
provision that the parties to a dispute are required to
resort to a specific method of settlement, such as
negotiation. The Court holds that no obligation to
negotiate Bolivia‟s sovereign access to the sea arises for
Chile under the United Nations Charter. Concerning the
OAS Charter, the Court recalls that its Article 3 (i)
provides that “[c]ontroversies of an international
character arising between two or more American
States shall be settled by peaceful procedures”. The
Court also does not consider that this provision
could be the legal basis of an obligation to negotiate
Bolivia‟s sovereign access to the sea.
7. The resolutions of the General Assembly of
the Organization of American States
The Court next considers Bolivia‟s argument that
11 resolutions of the OAS General Assembly which dealt
with the issue of Bolivia‟s sovereign access to the Pacific
Ocean confirm Chile‟s commitment to negotiate that issue .
It notes that none of the relevant resolutions indicates
that Chile is under an obligation to negotiate Bolivia‟s
sovereign access to the Pacific Ocean. These resolutions
merely recommend to Bolivia and Chile that they
enter into negotiations over the issue. Moreover, as
both Parties acknowledge, resolutions of the General
Assembly of the OAS are not per se binding and cannot be
the source of an international obligation. Chile‟s
participation in the consensus for adopting some
resolutions therefore does not imply that Chile has
accepted to be bound under international law by the
content of these resolutions. Thus, the Court cannot
infer from the content of these resolutions nor from Chile‟s
position with respect to their adoption that Chile has
accepted an obligation to negotiate Bolivia‟s sovereign
access to the Pacific Ocean.
8. The legal significance of instruments, acts and
conduct taken cumulatively
Finally, the Court examines Bolivia‟s argument
that, even if there is no instrument, act or conduct which,
taken individually, creates an obligation to negotiate its
sovereign access to the sea, all these elements may
cumulatively have “decisive effect” for the existence of
such an obligation. For the Court, given that its
analysis shows that no obligation to negotiate
Bolivia‟s sovereign access to the Pacific Ocean has
arisen for Chile from any of the invoked legal bases
29
F-3
taken individually, a cumulative consideration of the
various bases cannot add to the overall result.
III. GENERAL CONCLUSION ON THE EXISTENCE
OF AN OBLIGATION TO NEGOTIATE
SOVEREIGN ACCESS TO THE PACIFIC OCEAN
The Court observes that Bolivia and Chile have a long
history of dialogue, exchanges and negotiations aimed at
identifying an appropriate solution to the landlocked
situation of Bolivia following the War of the Pacific
and the 1904 Peace Treaty. The Court is however
unable to conclude, on the basis of the material submitted
to it, that Chile has “the obligation to negotiate with Bolivia
in order to reach an agreement granting Bolivia a fully
sovereign access to the Pacific Ocean”. Accordingly, the
Court cannot accept the other final submissions
presented by Bolivia, which are premised on the
existence of such an obligation, namely that the
Court adjudge and declare that Chile has breached
that obligation and that Chile must perform that
obligation in good faith, promptly, formally, within
a reasonable time and effectively. The Court adds
that its finding should not be understood as precluding the
Parties from continuing their dialogue and exchanges, in a
spirit of good neighbourliness, to address the issues
relating to the landlocked situation of Bolivia , the
solution to which they have both recognized to be a
matter of mutual interest.
Composition of the Court
The Court was composed as follows: President
Yusuf; Vice-President Xue; Judges Tomka,
Abraham, Bennouna, Cançado Trindade,
Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
Gevorgian, Salam; Judges ad hoc Daudet, McRae;
Registrar Couvreur. President YUSUF appends a
declaration to the Judgment of the Court; Judges
ROBINSON and SALAM append dissenting
opinions to the Judgment of the Court; Judge ad hoc
DAUDET appends a dissenting opinion to the
Judgment of the Court.
***
A summary of the Judgment appears in the document
entitled “Summary No. 2018/5”. This press release,
the summary and the full text of the Judgment are
available on the Court‟s website (www.icj-cij.org),
under the heading “Cases”.
Note: The Court‟s press releases do not constitute
official documents.
*****
Law Animated World, 15 January 2019
F-4 Bolivia v. Chile [ICJ-Hague]
INTERNATIONAL COURT OF JUSTICE
YEAR 2018
2018
1 October
General List
No. 153
1 October 2018
OBLIGATION TO NEGOTIATE ACCESS
TO THE PACIFIC OCEAN
(BOLIVIA v. CHILE)
Historical and factual background.
1866 Treaty demarcating boundary between Chile
and Bolivia and separating their Pacific coast
territories — War of the Pacific and Chile‟s
occupation of Bolivia‟s coastal territory — 1884
Truce Pact providing Chile to continue to govern
coastal region — 1904 Peace Treaty recognizing
coastal territory as belonging “absolutely and in
perpetuity” to Chile — Minutes of 1920 meetings
concerning question of Bolivia‟s access to the sea
(“Acta Protocolizada”) — Follow-up exchanges
concerning Bolivia‟s request for revision of 1904
Peace Treaty — 1926 Matte Memorandum
expressing Chile‟s position concerning question of
sovereignty over provinces of Tacna and Arica —
1950 exchange of Notes between Bolivia and Chile
concerning Bolivia‟s access to the sea  1961
Memorandum handed by Chile‟s Ambassador in
Bolivia to Minister for Foreign Affairs of Bolivia
(“Trucco Memorandum”) — Joint declaration by
Presidents of Bolivia and Chile in 1975 expressing
agreement to initiate negotiations (“Charaña
Declaration”) — Resolutions of the Organization of
American States (“OAS”) concerning Bolivia‟s
sovereign access to the sea — New negotiations
opened after 1985 Bolivian presidential elections,
known as the “fresh approach” — 2000 Algarve
Declaration on essential issues in the bilateral
relationship — 13-Point Agenda of 2006, including
Point 6 on the “maritime issue”
H.E. Mr. Eduardo Rodríguez Veltzé, former
President of Bolivia, former President of the
Bolivian Supreme Court of Justice, former Dean of
the Law School of the Catholic University of
Bolivia in La Paz, Ambassador Extraordinary and
Law Animated World, 15 January 2019
30
(2019) 1 LAW
Plenipotentiary of the Plurinational State of Bolivia
to the Kingdom of the Netherlands,
as Agent;
H.E. Mr. Sacha Llorentty Soliz, Permanent
Representative of the Plurinational State of Bolivia
to the United Nations in New York,
as Co-Agent;
H.E. Mr. Evo Morales Ayma, President of the
Plurinational State of Bolivia,
as National Authority;
Mr. Vaughan Lowe, QC, member of the Bar of
England and Wales, Emeritus Chichele Professor of
International Law, University of Oxford, member of
the Institut de droit international,
Mr. Antonio Remiro Brotóns, Professor of
International Law, Universidad Autónoma de
Madrid, member of the Institut de droit
international,
Ms Monique Chemillier-Gendreau, Professor
Emeritus of Public Law and Political Science at the
University Paris Diderot,
Mr. Mathias Forteau, Professor at the University
Paris Nanterre,
Mr. Payam Akhavan, LLM SJD (Harvard),
Professor of International Law, McGill University,
Montreal, member of the Permanent Court of
Arbitration, member of the New York State Bar and
of the Law Society of Upper Canada,
Ms Amy Sander, member of the Bar of England and
Wales,
as Counsel and Advocates;
Mr. Fernando Huanacuni, Minister for Foreign
Affairs of the Plurinational State of Bolivia,
Mr. Héctor Arce, Minister of Justice and
Institutional Transparency of the Plurinational State
of Bolivia,
Mr. Pablo Menacho, Attorney General of the
Plurinational State of Bolivia and Professor of
Constitutional Law, Universidad Mayor de San
Andrés, La Paz,
Mr. Emerson Calderón, Secretary General of the
Strategic Maritime Vindication Office (DIREMAR)
and Professor of Public International Law,
Universidad Mayor de San Andrés, La Paz,
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
as Advisers;
Mr. Guido Vildoso, former President of Bolivia,
Mr. Jorge Quiroga, former President of Bolivia,
Mr. Carlos Mesa, former President of Bolivia,
Mr. José Alberto González, President of the Senate
of the Plurinational State of Bolivia,
Ms Gabriela Montaño, President of the Chamber of
Deputies of the Plurinational State of Bolivia,
Mr. Rubén Costas Aguilera, Governor of Santa
Cruz,
Mr. Esteban Urquizu Cuellar, Governor of
Chuquisaca,
Mr. Gonzalo Alcón Aliaga, President of the Council
of Magistrates of the Plurinational State of Bolivia,
Ms Segundina Flores, Executive Secretary of the
Bartolina Sisa National Federation of Peasant
Women,
Mr. Juan Carlos Guarachi, Executive Secretary of
the Central Obrera Boliviana,
Mr. Alvaro Ruiz, President of the Federation of
Municipal Associations (FAM),
Mr. Juan Ríos del Prado, Dean of the Universidad
Mayor de San Simón,
Mr. Marco Antonio Fernández, Dean of the
Universidad Católica Boliviana,
Mr. Ronald Nostas, President of Private
Entrepreneurs of the Plurinational State of Bolivia,
Mr. Gustavo Fernández, former Minister for
Foreign Affairs,
Mr. Javier Murillo, former Minister for Foreign
Affairs,
Mr. Carlos Iturralde, former Minister for Foreign
Affairs,
Mr. Diego Pary, Permanent Representative of the
Plurinational State of Bolivia to the Organization of
American States in Washington DC,
Mr. Gustavo Rodríguez Ostria, Ambassador of the
Plurinational State of Bolivia to the Republic of
Peru,
Mr. Rubén Saavedra, Permanent Representative of
the Plurinational State of Bolivia to the Union of
South American Nations (UNASUR),
31
F-5
Ms Magdalena Cajias, Consul General of the
Plurinational State of Bolivia in Santiago,
Mr. Juan Lanchipa, President of the Court of Justice
of the Department of La Paz,
Mr. Franz Zubieta, Director of International Law at
the Ministry of Justice and Institutional
Transparency of the Plurinational State of Bolivia,
Mr. Roberto Calzadilla, Bolivian diplomat,
as Special Guests;
Mr. Javier Viscarra Valdivia, Deputy Chief of
Mission, Embassy of the Plurinational State of
Bolivia in the Kingdom of the Netherlands,
Mr. Luis Rojas Martínez, Minister Counsellor ‒
Legal Adviser, Embassy of the Plurinational State
of Bolivia in the Kingdom of the Netherlands,
Ms Iara Beekma Reis, Counsellor, Embassy of the
Plurinational State of Bolivia in the Kingdom of the
Netherlands,
Mr. José Villarroel, DIREMAR, La Paz,
Mr. Diego Molina, DIREMAR, La Paz,
as Technical Advisers;
Ms Gimena González, Researcher in Public
International Law,
Ms Patricia Jimenez Kwast, Doctoral Candidate in
Public International Law, University of Oxford,
Ms Raphaëlle Nollez-Goldbach, Researcher at
CNRS and Director of Studies in Law and Public
Administration at Ecole normale supérieure, Paris,
Ms Olga Dalbinoë, Doctoral Candidate in Public
International Law, Universidad Autónoma de
Madrid,
Ms Melina Antoniadis, BCL/LLB, McGill
University, Montreal,
as Assistant Counsel,
and
the Republic of Chile,
represented by
Mr. Claudio Grossman, member of the International
Law Commission, R. Geraldson Professor of
International Law and Dean Emeritus, American
University, Washington College of Law,
as Agent;
Law Animated World, 15 January 2019
F-6 Bolivia v. Chile [ICJ-Hague]
H.E. Mr. Roberto Ampuero, Minister for Foreign
Affairs of the Republic of Chile,
as National Authority;
H.E. Mr. Alfonso Silva, Vice-Minister for Foreign
Affairs of the Republic of Chile,
H.E. Ms María Teresa Infante Caffi, Ambassador of
the Republic of Chile to the Kingdom of the
Netherlands, member of the Institut de droit
international,
as Co-Agents;
Sir Daniel Bethlehem, QC, member of the Bar of
England and Wales, 20 Essex Street Chambers,
Mr. Samuel Wordsworth, QC, member of the Bar
of England and Wales, member of the Paris Bar,
Essex Court Chambers,
Mr. Jean-Marc Thouvenin, Professor at the
University Paris Nanterre, Secretary-General of the
Hague Academy of International Law,
Mr. Harold Hongju Koh, Sterling Professor of
International Law, Yale Law School, member of the
Bars of New York and the District of Columbia,
Mr. Ben Juratowitch, QC, admitted to practice in
Australia, and England and Wales, Freshfields
Bruckhaus Deringer LLP,
Ms Mónica Pinto, Professor, Faculty of Law,
University of Buenos Aires, Associate, Institut de
droit international,
Ms Kate Parlett, member of the Bar of England and
Wales, 20 Essex Street Chambers,
as Counsel and Advocates;
H.E. Mr. Heraldo Muñoz Valenzuela, former
Minister for Foreign Affairs of the Republic of
Chile, Professor of International Relations,
University of Chile,
H.E. Ms Ximena Fuentes Torrijo, National Director
of Frontiers and Limits, Ministry of Foreign Affairs
of the Republic of Chile, Professor of Public
International Law, University of Chile,
H.E. Mr. Alberto van Klaveren Stork, former Vice-
Minister for Foreign Affairs of the Republic of
Chile, Professor of International Relations,
University of Chile,
Ms Carolina Valdivia, General Co-ordinator,
Ministry of Foreign Affairs of the Republic of
Chile,
Law Animated World, 15 January 2019
(2019) 1 LAW
Ms Alexandra van der Meulen, avocat au barreau
de Paris and member of the Bar of the State of New
York, Freshfields Bruckhaus Deringer LLP,
Ms Mariana Durney, Director of Limits, Ministry of
Foreign Affairs of the Republic of Chile,
H.E. Mr. Luis Winter, Ministry of Foreign Affairs
of the Republic of Chile, Mr. Hernán Salinas,
Professor of International Law, Catholic University
of Chile, Chairman of the Inter-American Juridical
Committee,
Mr. Andrés Jana, Professor of Civil Law,
University of Chile,
Mr. Claudio Troncoso Repetto, Professor of Public
International Law, University of Chile,
Mr. Daniel Müller, avocat au barreau de Paris,
Freshfields Bruckhaus Deringer LLP, chercheur
associé, Centre de droit international de Nanterre
(CEDIN),
Ms Callista Harris, Solicitor admitted in New South
Wales, Freshfields Bruckhaus Deringer LLP,
Ms Catherine Drummond, Solicitor admitted in
Queensland, Freshfields Bruckhaus Deringer LLP,
Mr. Yuri Mantilla, member of the Bars of the
District of Columbia and Florida, Freshfields
Bruckhaus Deringer LLP,
as Advisers;
Ms María Alicia Ríos, Ministry of Foreign Affairs
of the Republic of Chile,
Mr. Juan Enrique Loyer, Second Secretary,
Embassy of the Republic of Chile in the Kingdom
of the Netherlands,
Mr. Coalter G. Lathrop, Special Adviser, Sovereign
Geographic, member of the North Carolina Bar,
Mr. José Hernández, Second Secretary, Ministry of
Foreign Affairs of the Republic of Chile,
Mr. Giovanni Cisternas, Third Secretary, Ministry
of Foreign Affairs of the Republic of Chile,
Mr. Robert Carter Parét, member of the Bar of the
State of New York,
as Assistant Advisers,
THE COURT,
composed as above,
after deliberation,
32
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
delivers the following JUDGMENT:
1. On 24 April 2013, the Government of the
Plurinational State of Bolivia (hereinafter “Bolivia”)
filed in the Registry of the Court an Application
instituting proceedings against the Republic of Chile
(hereinafter “Chile”) with regard to a dispute
“relating to Chile‟s obligation to negotiate in good faith
and effectively with Bolivia in order to reach an
agreement granting Bolivia a fully sovereign access to
the Pacific Ocean”.
In its Application, Bolivia seeks to found the
jurisdiction of the Court on Article XXXI of the
American Treaty on Pacific Settlement signed on 30
April 1948, officially designated, according to
Article LX thereof, as the “Pact of Bogotá”
(hereinafter referred to as such).
2. In accordance with Article 40, paragraph 2, of
the Statute of the Court, the Registrar
immediately communicated the Application to the
Government of Chile; and, under paragraph 3 of
that Article, all other States entitled to appear
before the Court were notified of the Application.
3. Since the Court included upon the Bench no
judge of the nationality of either of the Parties,
each Party proceeded to exercise the right
conferred upon it by Article 31, paragraph 3, of
the Statute to choose a judge ad hoc to sit in the
case. Bolivia chose Mr. Yves Daudet. Chile first
chose Ms Louise Arbour, who resigned on 26
May 2017, and subsequently Mr. Donald M.
McRae.
4. By an Order of 18 June 2013, the Court fixed
17 April 2014 as the time-limit for the filing of
the Memorial of Bolivia and 18 February 2015
for the filing of the Counter-Memorial of Chile.
Bolivia filed its Memorial within the time-limit
so prescribed.
5. Referring to Article 53, paragraph 1, of the
Rules of Court, the Governments of Peru and
Colombia respectively asked to be furnished with
copies of the pleadings and documents annexed in
the case. Having ascertained the views of the
Parties pursuant to that same provision, the
President of the Court decided to grant those
requests. The Registrar duly communicated these
33
F-7
decisions to the said Governments and to the
Parties.
6. On 15 July 2014, within the time-limit set by
Article 79, paragraph 1, of the Rules of Court,
Chile raised a preliminary objection to the
jurisdiction of the Court. Consequently, by an
Order of 15 July 2014, the President, noting that
by virtue of Article 79, paragraph 5, of the Rules
of Court the proceedings on the merits were
suspended and taking account of Practice
Direction V, fixed 14 November 2014 as the
time-limit for the presentation by Bolivia of a
written statement of its observations and
submissions on the preliminary objection raised
by Chile. Bolivia filed such a statement within
the time-limit so prescribed.
7. Pursuant to the instructions of the Court under
Article 43 of the Rules of Court, the Registrar
addressed to States parties to the Pact of Bogotá
the notifications provided for in Article 63,
paragraph 1, of the Statute of the Court. In
accordance with the provisions of Article 69,
paragraph 3, of the Rules of Court, the Registrar
sent at the same time to the Organization of
American States (hereinafter the “OAS”) the
notification under Article 34, paragraph 3, of the
Statute of the Court. As provided for in Article
69, paragraph 3, of the Rules of Court, the
Registrar transmitted the written pleadings to the
OAS and asked that organization whether or not
it intended to furnish observations in writing
within the meaning of that Article. The Registrar
further stated in the latter notification that, in
view of the fact that the proceedings were dealing
with Chile‟s preliminary objection to the
jurisdiction of the Court, any written observations
should be limited to that aspect. The Secretary
General of the OAS indicated that that
organization did not intend to submit any such
observations.
8. Public hearings on the preliminary objection
raised by Chile were held from Monday 4 to
Friday 8 May 2015. By its Judgment of 24 September
2015, the Court rejected the preliminary objection
raised by Chile and found that it had jurisdiction, on
Law Animated World, 15 January 2019
F-8 Bolivia v. Chile [ICJ-Hague]
the basis of Article XXXI of the Pact of Bogotá , to
entertain the Application filed by Bolivia on 24
April 2013.
9. By an Order dated 24 September 2015, the
Court fixed 25 July 2016 as the time-limit for the
filing of the Counter-Memorial of Chile. The
Counter-Memorial was filed within the time-limit
thus fixed.
10. By an Order dated 21 September 2016, the
Court authorized the submission of a Reply by
Bolivia and a Rejoinder by Chile and fixed 21
March 2017 and 21 September 2017 as the
respective time-limits for the filing of those
pleadings. The Reply and the Rejoinder were
filed within the time-limits thus fixed.
11. Pursuant to Article 53, paragraph 2, of the
Rules of Court, the Court, after ascertaining the
views of the Parties, decided that copies of the
pleadings and documents annexed would be made
accessible to the public on the opening of the oral
proceedings.
12. Public hearings were held from 19 March to
28 March 2018, at which the Court heard the oral
arguments and replies of:
For Bolivia: H.E. Mr. Eduardo Rodríguez Veltzé,
Mr. Payam Akhavan, Ms Monique Chemillier-
Gendreau, Mr. Antonio Remiro Brotóns, Mr.
Vaughan Lowe, Ms Amy Sander, Mr. Mathias
Forteau, H.E. Mr. Sacha Llorentty Soliz.
For Chile: Mr. Claudio Grossman, Sir Daniel
Bethlehem, Mr. Jean-Marc Thouvenin, Ms Kate
Parlett, Mr. Samuel Wordsworth, Ms Mónica
Pinto, Mr. Ben Juratowitch, Mr. Harold Hongju
Koh.
* Plurinational State of Bolivia respectfully
13. In the Application, the following claims were
made by Bolivia:
“For the above reasons Bolivia respectfully
requests the Court to adjudge and declare that:
(a) Chile has the obligation to negotiate with
Bolivia in order to reach an agreement
granting Bolivia a fully sovereign access to
the Pacific Ocean;
(b) Chile has breached the said obligation;
Law Animated World, 15 January 2019
34
(2019) 1 LAW
(c) Chile must perform the said obligation in
good faith, promptly, formally, within a
reasonable time and effectively, to grant
Bolivia a fully sovereign access to the
Pacific Ocean.”
14. In the written proceedings, the following
submissions were presented by the Parties:
On behalf of the Government of Bolivia,
in the Memorial and in the Reply:
“For the reasons given [in Bolivia‟s Memorial
and Reply], Bolivia requests the Court to
adjudge and declare that:
(a) Chile has the obligation to negotiate with
Bolivia in order to reach an agreement
granting Bolivia a fully sovereign access to
the Pacific Ocean;
(b) Chile has breached the said obligation; and
(c) Chile must perform the said obligation in
good faith, promptly, formally, within a
reasonable time and effectively, to grant
Bolivia a fully sovereign access to the
Pacific Ocean.”
On behalf of the Government of Chile,
in the Counter-Memorial and in the Rejoinder:
“The Republic of Chile respectfully requests
the Court to dismiss all of the claims of the
Plurinational State of Bolivia.”
15. At the oral proceedings, the following
submissions were presented by the Parties:
On behalf of the Government of Bolivia,
“In accordance with Article 60 of the Rules of
the Court and the reasons set out during the
written and oral phase of the pleadings in the
case Obligation to Negotiate Access to the
Pacific Ocean (Bolivia v. Chile), the
requests the Court to adjudge and declare that:
(a) Chile has the obligation to negotiate with
Bolivia in order to reach an agreement
granting Bolivia a fully sovereign access to
the Pacific Ocean;
(b) Chile has breached the said obligation; and
(c) Chile must perform the said obligation in
good faith, promptly, formally, within a
reasonable time and effectively, to grant
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
Bolivia a fully sovereign access to the
Pacific Ocean.”
On behalf of the Government of Chile,
“The Republic of Chile respectfully requests
the Court to dismiss all of the claims of the
Plurinational State of Bolivia.”
* Bolivia. In the course of this war, which became
**
I. HISTORICAL AND FACTUAL BACKGROUND
16. Bolivia is situated in South America,
bordering Chile to the south-west, Peru to the
west, Brazil to the north and east, Paraguay to the
south-east and Argentina to the south. Bolivia has
no sea-coast. Chile, for its part, shares a land
boundary with Peru to the north, with Bolivia to
the north-east and with Argentina to the east. Its
mainland coast faces the Pacific Ocean to the
west.
17. Due to the importance of the historical
context of this dispute, the Court will now
examine in a chronological order certain events
that have marked the relationship between
Bolivia and Chile.
18. Many of the documents that set out these
events were drafted in Spanish, and they have not
always been translated by the Parties into an
official language of the Court in an identical
manner. Where these differences are material, the
Court will, for the sake of clarity, reproduce the
Spanish original of those documents, and indicate
which Party‟s translation is being quoted as well
as any material variation in the translations
provided by the Parties.
1. Events and treaties prior to 1904,
including the 1895 Transfer Treaty
19. Chile and Bolivia gained their independence from
Spain in 1818 and 1825, respectively . At the time of
its independence, Bolivia had a coastline of over
400 km along the Pacific Ocean.
20. On 10 August 1866, Chile and Bolivia signed a
Treaty of Territorial Limits, which established a
demarcation line between the two States,
following the 24th parallel of latitude south,
separating their Pacific coast territories. The
35
F-9
instruments of ratification were exchanged on 9
December 1866. The boundary was confirmed by the
Treaty of Limits of 6 August 1874 , and the
instruments of ratification thereof were
exchanged on 28 July and 22 September 1875.
21. On 5 April 1879, Chile declared war on Peru and
known as the War of the Pacific, Chile occupied
Bolivia‟s coastal territory. Bolivia and Chile put an
end to the hostilities between them with the
signature of the Truce Pact of 4 April 1884 in
Valparaíso, Chile. Under the terms of the Truce
Pact, Chile was, inter alia, to continue to govern
“the territories from the parallel 23 to the mouth
of the Loa River in the Pacific”, i.e. the coastal
region of Bolivia.
22. The Treaty of Peace between Chile and Peru
signed on 20 October 1883 (hereinafter the “Treaty
of Ancón”) brought hostilities formally to an end
between Chile and Peru. Pursuant to Article 2 of
the Treaty of Ancón, Peru ceded to Chile the
coastal province of Tarapacá. In addition, under
Article 3, Chile would remain in the possession
of the territories of the provinces of Tacna and
Arica for a period of ten years, after which a
plebiscite would be held to definitively determine
sovereignty over those territories.
23. On 18 May 1895, Bolivia and Chile signed three
treaties: a Treaty of Peace and Amity, a Treaty on the
Transfer of Territory and a Treaty of Commerce . The
Treaty of Peace and Amity reaffirmed Chile‟s
sovereignty over the coastal territory it governed
in accordance with the Truce Pact of 4 April
1884. Under the Treaty on the Transfer of
Territory, Bolivia and Chile agreed, inter alia,
that the territories of Tacna and Arica were to be
transferred to Bolivia if Chile should acquire
“dominion and permanent sovereignty” over them
either by direct negotiations or by way of the
plebiscite envisaged by the 1883 Treaty of
Ancón. Should Chile fail to obtain the two
territories mentioned above, either through direct
negotiations with Peru or by plebiscite, Article IV
of the Treaty on the Transfer of Territory
provided that Chile would cede to Bolivia the
Law Animated World, 15 January 2019
F-10 Bolivia v. Chile [ICJ-Hague]
territory “from the Vit́ or inlet up to the
Camarones ravine, or an equivalent territory”.
These three treaties were followed by four
protocols.
24. On 9 December 1895, Chile and Bolivia agreed to a
Protocol on the scope of the obligations in the treaties of
18 May 1895 which clarified the obligations
undertaken by the Parties. By an exchange of
Notes of 29 and 30 April 1896, it was agreed that
these three treaties of 18 May 1895 were to enter
into force on the condition that the Congresses of
both Chile and Bolivia approved this Protocol. As
this condition was never met, the three treaties of 18
May 1895 never entered into force.
2. THE 1904 PEACE TREATY
25. The Treaty of Peace and Friendship of 20 October
1904 (hereinafter the “1904 Peace Treaty”)
officially ended the War of the Pacific as between
Bolivia and Chile. This Treaty entered into force on
10 March 1905 after the instruments of
ratification were exchanged between the Parties.
Under the terms of its Article II, the territory
occupied by Chile in application of the Truce Pact of
1884 was recognized as belonging “absolutely and in
perpetuity” to Chile and the entire boundary between
the two States was delimited . Article III provided for
the construction of a railroad between the port of
Arica and the plateau of La Paz, at the expense of
Chile, which was inaugurated on 13 May 1913.
Under Article VI, Chile granted to Bolivia “in
perpetuity the amplest and freest right of commercial
transit in its territory and its Pacific ports”. Under
Article VII of the Treaty, Bolivia had “the right to
establish customs agencies in the ports which it
may designate for its commerce” and indicated
for this purpose the ports of Antofagasta and
Arica.
3. EXCHANGES & STATEMENTS IN THE 1920s
A. The 1920 “Acta Protocolizada”
26. Before the events of 1920, in a memorandum
of 22 April 1910, Bolivia, referring to the dispute
between Chile and Peru regarding the sovereignty
of Tacna and Arica, had already expressed the
view that:
Law Animated World, 15 January 2019
36
(2019) 1 LAW
“[it] cannot live isolated from the sea. Now
and always, to the extent of its abilities, it
will do as much as possible to possess at
least one port on the Pacific, and will never
resign itself to inaction each time the Tacna
and Arica question is raised, jeopardizing the
very foundation of its existence.”
27. In a memorandum of 9 September 1919,
submitted by the Minister Plenipotentiary of
Chile in La Paz, Bolivia, it was stated, inter alia,
that Chile was willing to initiate negotiations,
independently of what was established by the
1904 Peace Treaty, in order for Bolivia to acquire
an outlet to the sea subject to the result of the
plebiscite envisaged by the 1883 Treaty of
Ancón.
28. On 10 January 1920, the Minister for Foreign
Affairs of Bolivia, and the Minister
Plenipotentiary of Chile in La Paz met in order to
address, inter alia, questions relating to Bolivia‟s
access to the sea and documented the series of
meetings in writing. These minutes are referred to
by the Parties as “Acta Protocolizada”.
29. The representative of Chile proposed the
following terms of agreement:
“I. The Treaty of Peace and Amity
celebrated between Chile and Bolivia on 20
October 1904 defines the political relations
of the two countries in a definitive manner
and put an end to all the questions derived
from the war of 1879.
II. Chile has fulfilled the obligations that said
Treaty imposed on it, and the essence of that
negotiation was to link the territory of Tacna
and Arica to Chile‟s dominion, Bolivia
expressly committing to cooperate to that
result.
III. The Bolivian aspiration to its own port
was replaced by the construction of the
railway that connects the port of Arica with
El Alto de la Paz and the rest of the
obligations undertaken by Chile.
IV. The situation created by the Treaty of
1904, the interests located in that zone and
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
the security of its northern frontier, require
Chile to preserve the maritime coast that is
indispensable to it; however, for the purpose
of founding the future union of the two
countries on solid ground, Chile is willing to
seek that Bolivia acquire its own access to
the sea, ceding to it an important part of that
zone in the north of Arica and of the railway
line which is within the territories subject to
the plebiscite stipulated in the Treaty of
Ancón.
V. Independently of what was established in
the Treaty of Peace of 1904, Chile accepts to
initiate new negotiations directed at satisfying the
aspiration of the friendly country, subject to the
victory of Chile in the plebiscite.
VI. A prior agreement would determine the line
that must indicate the limit between the zones of
Arica and Tacna that would pass to the dominion
of Chile and Bolivia, respectively, as well as all
other commercial compensations or
compensations of another nature that are the
basis of the agreement.”
30. The representative of Bolivia then responded
as follows:
“III. Bolivia‟s aspiration for its own port on the
Pacific Ocean has not been reduced at any time in
history and has currently reached a greater
intensity. The railway from Arica to El Alto
of La Paz that has facilitated Bolivian trade,
contributes to promoting the legitimate
aspiration of securing a port that can be
incorporated under Bolivian sovereignty.
That aspiration will not, however, lead
Bolivia to commit any act contrary to the
law.
IV. The willingness demonstrated by Chile to
obtain for Bolivia an access of its own to the sea,
ceding to it a considerable part of the area north of
Arica and of the railway line found within the
territories subject to the plebiscite established by
the Treaty of Ancón, opens the way to more
friendly relations between both countries which
are necessary for the future union of both
peoples by laying solid foundations in line
with their common goals.”
37
F-11
31. The penultimate clause of the minutes
specified that the Minister for Foreign Affairs of
Bolivia considered that: “the present declarations do
not contain provisions that create rights, or obligations
for the States whose representatives make them”.
B. FOLLOW-UP EXCHANGES (1920-1925)
32. On 1 November 1920, Bolivia wrote to the
Secretary-General of the League of Nations with
a view to obtaining the revision of the 1904 Peace
Treaty by the League of Nations, in accordance
with Article 19 of the Treaty of Versailles which
provided that the “Assembly may ... advise the
reconsideration by Members of the League of
treaties which have become inapplicable”.
33. On 28 September 1921, during the Twenty-
Second Plenary Meeting of the Assembly of the
League of Nations, Bolivia withdrew its request,
following the determination by a Commission of
Jurists that the Bolivian request was inadmissible.
The reason given was that the Assembly of the
League of Nations was not competent to modify
treaties, as only the contracting States could do it.
Bolivia nevertheless reserved its right to submit
this request to the Assembly again.
34. During this meeting, the delegate of Chile
replied, inter alia, that:
“Bolivia can seek satisfaction through the medium
of direct negotiations of our own arranging. Chile
has never closed that door to Bolivia, and I am in
a position to state that nothing would please
us better than to sit down with her and
discuss the best means of facilitating her
development.”
The Chilean delegate also stated that:
“[t]he Bolivian delegation has considered it
necessary to make a statement to the effect
that it „reserves its rights.‟ I trust we are right
in thinking that this statement signifies that,
in conformity with the opinion of the Jurists,
who declare that „the modification of treaties
lies solely within the competence of the
contracting states,‟ Bolivia has finally decided to
exercise the only right she can assert: namely, the
right of negotiation with Chile, not with a view to
the revision of the Treaty of 1904 ... We find it
Law Animated World, 15 January 2019
F-12 Bolivia v. Chile [ICJ-Hague]
impossible to believe that Bolivia intends, in
making this reservation of right, to leave
definitely open, and to renew later, even in a
different form, a request which is devoid of
any legal foundation ... Chile wishes to state
that she will always oppose, as she opposes to-day,
the inclusion in the agenda of the Assembly of any
request of Bolivia with regard to a question upon
which a ruling has already been given by a
Committee of Jurists ...”
35. In a letter dated 8 September 1922, the Bolivian
delegate informed the Secretary-General of the
League of Nations that Bolivia reiterated the
reservation of its right to submit a request “for the
revision or the examination” of the 1904 Peace Treaty
and that negotiations with Chile hadbeen“fruitless” . On
19 September 1922, the Chilean delegate to the
Assembly of the League of Nations responded as
follows:
“in accordance with the declaration made by
its delegation at the second Assembly, the
Chilean Government has expressed the greatest
willingness to enter into direct negotiations,
which it would conduct in a spirit of frank
conciliation.
I desire to state that the declaration of M.
Gutierrez, concerning the mission of the
Bolivian Minister at Santiago, is not in
accordance with the true facts of the case.
The President of the Republic of Chile ...
informed the Bolivian representative ... that
he did not recognise the right of the Bolivian
Government to claim a port on the Pacific Ocean,
since Bolivia abandoned that aspiration when it
signed the Treaty of Peace of 1904, and obtained
in exchange the assumption by Chile of
heavy engagements which have been entirely
carried out. The President of the Republic
added that the aspirations of Bolivia might be
satisfied by other means, and that his Government
was quite ready to enter into negotiations on this
subject in a sincere spirit of peace and
conciliation.”
36. In 1922 and 1923, parallel to its attempts to
revise the 1904 Peace Treaty, Bolivia further
Law Animated World, 15 January 2019
38
(2019) 1 LAW
continued to negotiate directly with Chile in order to
obtain sovereign access to the Pacific Ocean.
37. On 6 February 1923, in response to a Note of
27 January 1923 of the Bolivian Minister for
Foreign Affairs and Worship, in which the
revision of the 1904 Peace Treaty was proposed,
the Chilean Minister for Foreign Affairs stated
that the Chilean Government remained open to
the Bolivian proposals aimed at concluding a new
Pact to address “Bolivia‟s situation, but without
modifying the Peace Treaty and without
interrupting the continuity of the Chilean
territory”. He added that Chile “will devote great
efforts to consult [Bolivia], in light of the
concrete proposals that Bolivia submits and when
appropriate, the bases of direct negotiations
leading, through mutual compensation and
without detriment to inalienable rights, to the
fulfilment of this longing”.
38. In a Note dated 12 February 1923 to the Chilean
Minister for Foreign Affairs, the Minister
Plenipotentiary of Bolivia in Chile requested the
revision of the 1904 Peace Treaty and stated that:
“If the request that I was asked to make does
not receive the response that my country expects,
and instead you inform me that the Chilean
Ministry of Foreign Affairs is willing to hear
the proposals that my Government wants to
submit to it, in order to enter into a treaty at
the right time, and with mutual
compensation, which, without modifying the
Treaty of Peace and without interrupting the
continuity of Chilean territory, considers the
situation and Bolivia‟s aspirations and which
Your Government would make every effort
to bring about, I can do nothing more than
tell you that my Government has instructed me
to put an end to these negotiations, as the reason
for them was to seek a firm and secure basis
on which Bolivia‟s aspirations could be
reconciled with Chile‟s interests.”
39. In a Note of 22 February 1923 to the Minister
Plenipotentiary of Bolivia in Chile, the Minister
for Foreign Affairs of Chile stated:
(2019) 1 LAW
“[the 1904 Peace] Treaty does not contain
any other territorial stipulation than the one
declaring Chile‟s absolute and perpetual
dominion of the area of the former Littoral
included in the Atacama Desert, which had
been the subject of a long dispute between
the two countries.
........................................................................
......................................................................
Chile will never recognize the obligation to
give a port to Bolivia within that zone,
because it was ceded to us definitively and
unconditionally in 1904, and also, because,
as I said in my note of the 6th of this month,
such recognition would interrupt the
continuity of its own territory; however,
without modifying the Treaty and leaving its
provisions intact and in full force and effect, there
is no reason to fear that the well intentioned efforts
of the two Governments would not find a way to
satisfy Bolivia‟s aspirations, provided that they
are limited to seeking free access to the sea
and do not take the form of the maritime
vindication that Your Excellency‟s note
suggests. I would like to take this
opportunity to state, once again, my
Government‟s willingness to discuss the
proposals that the Bolivian Government
wishes to present in this regard.”
40. In a press interview of 4 April 1923, the
President of Chile, Mr. Arturo Alessandri, made
the following statement in which, notably, he
referred to the decision of 1922 of Peru and Chile
to submit their territorial dispute over Tacna and
Arica to arbitration by the President of the United
States of America:
“[L]egally, we have no commitment towards
Bolivia. We have had our relations completely
and definitively settled by the solemn faith
undertaken when both countries signed the Treaty
of Peace and Amity on 20 October 1904 .
........................................................................
...........................................................
This Treaty, which was highly beneficial to
Bolivia and gave it free and perpetual access to the
Bolivia v. Chile [ICJ-Hague] F-13
Pacific Ocean, was established on the condition
that such country renounce its right to any port
claims in the Pacific and Chile, the victorious
country, fully paid for the territory that was ceded ,
since the pecuniary obligations imposed on
Chile, which have been religiously
performed, represent for Chile an
approximate cost of around eight million
pounds sterling.
........................................................................
...........................................................
Notwithstanding the foregoing, I repeat that,
in case the arbitral award of Washington allows it,
Chile, who insists on its longing to contribute all its
resources to the tranquillity of America, will
generously consider the port aspirations of Bolivia
in the form and terms clearly and frequently posed
in the Note of the Ministry of Foreign Affairs of
Chile, addressed to the Bolivian Minister in
Chile, on 6 February.”
41. By an arbitral award of 1925, the President of the
United States, Mr. Calvin Coolidge, set forth the terms
of the plebiscite over Tacna and Arica provided for in
Article 3 of the Treaty of Ancón (Tacna-Arica Question
(Chile, Peru), 4 March 1925, Reports of International
Arbitral Awards (RIAA), Vol. II, pp. 921-958).
C. THE 1926 KELLOGG PROPOSAL AND
THE 1926 MATTE MEMORANDUM
42. On 30 November 1926, the Secretary of State
of the United States of America, Mr. Frank
B. Kellogg, submitted a proposal to Chile and
Peru, regarding the question of sovereignty over
the provinces of Tacna and Arica. It reads as
follows:
“I have decided to outline and place before
the two Governments a plan which, in my
judgment, is worthy of their earnest attention
... This plan calls for the cooperation of a third
power, Bolivia, which has not yet appeared in any
of the negotiations, at least so far as my
Government is concerned. While the attitude
of Bolivia has not been ascertained, save that her
aspiration to secure access to the Pacific is
common knowledge, it seems reasonable to
assume that Bolivia, by virtue of her
geographical situation, is the one outside
Law Animated World, 15 January 2019
39
F-14 Bolivia v. Chile [ICJ-Hague]
power which would be primarily interested
in acquiring, by purchase or otherwise the
subject matter of the pending controversy.
With this preface let me now define the
concrete suggestion which I have in mind:
(a) The Republics of Chile and Peru, either by
joint or by several instruments freely and
voluntarily executed, to cede to the Republic of
Bolivia, in perpetuity, all right, title and interest
which either may have in the Provinces of Tacna
and Arica; the cession to be made subject to
appropriate guaranties for the protection and
preservation, without discrimination, of the
personal and property rights of all of the
inhabitants of the provinces of whatever
nationality.”
43. On 2 December 1926, the Minister for Foreign
Affairs of Bolivia wrote to the Minister
Plenipotentiary of the United States of America in
La Paz expressing Bolivia‟s full acceptance of the
Kellogg proposal.
44. By a memorandum of 4 December 1926 (the
“Matte Memorandum”) addressed to the
Secretary of State of the United States of
America, the Minister for Foreign Affairs of
Chile expressed his position towards the proposal
of the Secretary of State of the United States of
America, in the following terms:
“The [R]epublic of Bolivia which twenty years
after the termination of the war spontaneously
renounced the total seacoast, asking, as more
suitable for its interests, compensation of a
financial nature and means of communication, has
expressed its desire to be considered in the
negotiations which are taking place to
determine the nationality of these territories.
Neither in justice nor in equity can justification be
found for this demand which it formulates today
as a right.
Nevertheless, the Government of Chile has
not failed to take into consideration, this new
interest of the Government of Bolivia and
has subordinated its discussion, as was
logical, to the result of the pending
controversy with the Government of Peru.
Law Animated World, 15 January 2019
40
(2019) 1 LAW
Furthermore, in the course of the
negotiations conducted during the present
year before the State Department and within
the formula of territorial division, the
Government of Chile has not rejected the
idea of granting a strip of territory and a port
to the Bolivian nation.
........................................................................
...........................................................
The proposal of the Department of State goes
much farther than the concessions which the
Chilean Government has generously been able to
make. It involves the definitive cession to the
[R]epublic of Bolivia of the territory in dispute ,
and, although, as the Secretary of State says,
this solution does not wound the dignity of
the contending countries and is in harmony
with the desire, repeatedly shown by the
Chilean Government, to help satisfy Bolivian
aspirations, it is no less true that it signifies a
sacrifice of our rights and the cession of a territory
incorporated for forty years in the [R]epublic
by virtue of a solemn [T]reaty, a situation
which cannot be juridically altered, except
by a plebiscite, whose result offers no doubt
whatever in the opinion of the Chilean
people.”
45. Subsequently, in a Note of 7 December 1926
to the Minister Plenipotentiary of Chile in
Bolivia, the Minister for Foreign Affairs of
Bolivia noted that, in his country‟s view, “Chile
welcome[d] the proposal issued by the Secretary
of State of the United States”.
46. Finally, by a memorandum dated 12 January
1927, the Minister for Foreign Relations of Peru
informed the Secretary of State of the United
States of America that the Peruvian Government did
not accept the United States‟ proposal regarding Tacna
and Arica.
4. Bolivia‟s reaction to the 1929 Treaty of Lima
and its Supplementary Protocol
47. Due to difficulties arising in the execution of
the 1925 arbitral award between Chile and Peru
concerning the terms of the plebiscite over Tacna
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
and Arica provided for in Article 3 of the Treaty
of Ancón, Chile and Peru agreed to resolve the issue of
sovereignty over Tacna and Arica by treaty rather than
to hold a plebiscite to determine sovereignty .
48. On 3 June 1929, Chile and Peru concluded the
Treaty of Lima, whereby they agreed that
sovereignty over the territory of Tacna belonged to
Peru, and that over Arica to Chile. In a
Supplementary Protocol to this Treaty, Peru and
Chile agreed, inter alia, to the following:
“The Governments of Chile and Peru shall not,
without previous agreement between them, cede to
any third Power the whole or a part of the
territories which, in conformity with the
Treaty of this date, come under their respective
sovereignty, nor shall they, in the absence of
such an agreement, construct through those
territories any new international railway
lines.” (Art. I.)
52. In a Note of 20 June 1950, the Minister for
49. In a memorandum to the Secretary of State of
Foreign Affairs of Chile responded as follows
the United States of America dated 1 August 1929,
(Chile‟s translation):
upon receipt of this agreement, the Minister for
Foreign Affairs of Bolivia affirmed that this new
agreement between Chile and Peru would not result in
Bolivia renouncing its “policy of restoration of [its]
maritime sovereignty”.
5. THE 1950 EXCHANGE OF NOTES
50. In the late 1940s, Bolivia and Chile held further
discussions regarding Bolivia‟s access to the sea .
Notably, in a Note dated 28 June 1948, the
Ambassador of Bolivia in Chile reported to the
Minister for Foreign Affairs of Bolivia his
interactions with the Chilean President, Mr.
Gabriel González Videla, regarding the opening
of these negotiations and included a draft protocol
containing Bolivia‟s proposal.
51. In a Note dated 1 June 1950, the Ambassador of
Bolivia to Chile made the following formal proposal to
the Minister for Foreign Affairs of Chile to enter
into negotiations (Bolivia‟s translation):
“With such important precedents (translated
by Chile as “background”), that identify a
clear policy direction of the Chilean
Republic, I have the honour of proposing to
41
F-15
His Excellency that the Governments of Bolivia
and Chile formally enter into direct negotiations to
satisfy Bolivia‟s fundamental need to obtain its
own sovereign access to the Pacific Ocean, solving
the problem of Bolivia‟s landlocked situation
on terms that take into account the mutual
benefit and genuine interests of both
nations.”
(“Con tan importantes antecedentes, que al
respecto señalan una clara orientación de la
política internacional seguida por la República
chilena, tengo a honra proponer a Vuestra
Excelencia que los gobiernos de Bolivia y de
Chile ingresen formalmente a una negociación
directa para satisfacer la fundamental necesidad
boliviana de obtener una salida propia y soberana
al Océano Pacífico, resolviendo así el problema
de la mediterraneidad de Bolivia sobre bases que
consulten las recíprocas conveniencias y los
verdaderos intereses de ambos pueblos.”)
“From the quotes contained in the note I
answer, it flows that the Government of
Chile, together with safeguarding the de jure
situation established in the Treaty of Peace
of 1904, has been willing to study through
direct efforts (translated by Bolivia as
“direct negotiations”) with Bolivia the
possibility of satisfying the aspirations of the
Government of Your Excellency and the
interests of Chile.
At the present opportunity, I have the honour
of expressing to Your Excellency that my
Government will be consistent with that
position and that, motivated by a fraternal
spirit of friendship towards Bolivia, is open
formally to enter into a direct negotiation aimed at
searching for a formula (translated by Bolivia
as “is willing to formally enter into direct
negotiations aimed at finding a formula”)
that would make it possible to give Bolivia its own
sovereign access to the Pacific Ocean, and for
Chile to obtain compensation of a non-
territorial character which effectively takes
into account its interests.”
Law Animated World, 15 January 2019
F-16
(“De la citas contenidas en la nota que contesto,
fluye que el Gobierno de Chile, junto con
resguard[ar] la situación de derecho establecida
en el Tratado de Paz de 1904, ha estado
dispuesto a estudiar, en gestiones directas con
Bolivia, la posibilidad de satisfacer las
aspiraciones del Gobierno de Vuestra Excelencia
y los intereses de Chile. En la presente
oportunidad, tengo el honor de expresar a
Vuestra Excelencia que mi Gobierno será
con[se]cuente con esa posición y que, animado
de un espíritu de eternal amistad hacia Bolivia,
está llano a entrar formalmente en una
negociación directa destinada a buscar la fórmula
que pueda hacer posible dar a Bolivia una salida
propia y soberana al Océano Pacífico, y a Chile
obtener las compensaciones que no tengan
carácter territorial y que consulten efectivamente
sus intereses.”)
53. The negotiations between Chile and Bolivia did not
make any further progress in the following years. On
29 March 1951, the President of Chile, Mr.
Gabriel González Videla, stated as follows:
“[T]he policy of the Chilean Government has
unvaryingly been a single one: to express its
willingness to give an ear to any Bolivian proposal
aimed at solving its landlocked condition,
provided that it is put forward directly to us
and that it does not imply renouncing our
traditional doctrine of respect
international treaties, which we deem
essential for a peaceful coexistence between
Nations.
........................................................................
...........................................................
Every time Bolivia has updated its desire for
an outlet to the sea, consideration was
naturally given to what that country might
offer us as compensation in the event that an
agreement is reached on this particular
matter with Chile and Peru.”
6. THE 1961 TRUCCO MEMORANDUM
54. From 1951 to 1957, the exchanges between
the Parties were focused on improving the
practical implementation of the régime for
Bolivia‟s access to the Pacific Ocean.
Law Animated World, 15 January 2019
Bolivia v. Chile [ICJ-Hague] (2019) 1 LAW
55. On 10 July 1961, upon learning about Bolivia‟s
intention to raise the issue of its access to the
Pacific Ocean during the Inter-American
Conference which was to take place later that
year in Quito, Ecuador, Chile‟s Ambassador in
Bolivia, Mr. Manuel Trucco, handed to the Minister for
Foreign Affairs of Bolivia a memorandum which he
had earlier addressed to the Minister for Foreign
Affairs of Chile, known as the “Trucco
Memorandum”. It reads as follows (Chile‟s
translation):
“1. Chile has always been open (translated by
Bolivia as “been willing”), together with
safeguarding the de jure situation established
in the Treaty of Peace of 1904, to study, in
direct dealings with Bolivia, the possibility of
satisfying its aspirations and the interests of Chile .
Chile will always reject the resort, by
Bolivia, to organizations which are not
competent to resolve a matter which is
already settled by Treaty and could only be
modified by direct agreement (translated by
Bolivia as “direct negotiations”) of the
parties.
2. Note number 9 of our Ministry of Foreign
Affairs, dated in Santiago on 20 June 1950,
is a clear testimony (translated by Bolivia as
for “clear evidence”) of those purposes.
Through it, Chile states that it is „open
formally to enter into a direct negotiation aimed at
searching for a formula that would make it
possible to give Bolivia its own sovereign access to
the Pacific Ocean (translated by Bolivia as
“expresses having „full consent to initiate as
soon as possible, direct negotiations aimed
at satisfying the fundamental national need
of own sovereign access to the Pacific
Ocean‟”), and for Chile to obtain
compensation of a non-territorial character
which effectively takes into account its
interests.‟
3. Given that President Paz Estenssoro
manifested his willingness to visit President
Alessandri, in response to the invitation made by
the President of Chile, it would seem
particularly untimely and inconvenient to unsettle
42
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
public opinion in both countries with the
announcement of resorting to international
organisations to deal with a problem that the
Government of Bolivia has not specified
(translated by Bolivia as “has not resolved”)
in its direct relations with the Government of
Chile.”
(“1. Chile ha estado siempre llano, junto con
resguardar la situación de derecho establecida en
el Tratado de Paz de 1904, a estudiar, en
gestiones directas con Bolivia, la posibilidad de
satisfacer las aspiraciones de ésta y los intereses
de Chile. Chile rechazará siempre el recurso, por
parte de Bolivia, a organismos que no son
competentes para resolver un asunto zanjado por
Tratado, y que sólo podría modificarse por
acuerdo directo de las partes. 2. La nota No 9 de
nuestra Cancillería, fechada en Santiago el 20 de
junio de 1950, es claro testimonio de esos
propósitos. Mediante ella, Chile manifiesta estar
„llano a entrar formalmente en una negociación
directa destinada a buscar la fórmula que pueda
hacer posible dar a Bolivia una salida propia y
soberana al Océano Pacífico, y a Chile obtener
las compensaciones que no tengan carácter
territorial y que consulten efectivamente sus
intereses.‟ 3. Habiendo significado el Presidente
Paz Estenssoro su voluntad de visitar el
Presidente Alessandri, en respuesta a la
invitación que el Presidente de Chile le formulara,
parecierae special mente extemporáneo e
inconveniente agitar a la opinión pública de
ambos países con el anuncio de recurrir a
organismos internacionales para tratar de un
problema que el Gobierno de Bolivia no ha
concretado en sus relaciones directas con el
Gobierno de Chile.”)
56. In reply to this Memorandum, the Ministry for
Foreign Affairs of Bolivia, on 9 February 1962,
expressed
“its full consent to initiate, as soon as possible,
direct negotiations aimed at satisfying the
fundamental national need of its own sovereign
access to the Pacific Ocean, in return for
compensation that, without being territorial
in character, takes into account the reciprocal
benefits and effective interests of both
countries”.
43
F-17
57. On 15 April 1962, Bolivia severed diplomatic
relations with Chile as a consequence of the latter‟s use
of waters of the River Lauca.
58. On 27 March 1963, the Minister for Foreign
Affairs of Chile indicated that Chile “was not willing
to enter into discussions that could affect national
sovereignty or involve a cession of territory of any kind”
and denied that the Trucco Memorandum constituted
“an official note”, emphasizing that it was merely an
“Aide Memoire” recalling “a simple statement of
points of view at a certain time”. It also stated
that Chile had an interest in improving “all the means
of transport between the two countries” and had
proposed to engage in a joint action of economic
development.
59. On 3 April 1963, the Minister for Foreign Affairs
of Bolivia maintained that the 1950 exchange of Notes
was constitutive of a “commitment” of the Parties , a
contention rejected by Chile in a letter dated 17
November 1963 to the Minister for Foreign Affairs
of Bolivia. In a Note sent by the President of
Bolivia, Mr. René Barrientos Ortuño, to the
President of Uruguay, Mr. Óscar Diego Gestido,
regarding Bolivia‟s absence from the meeting of
the Heads of State of the American nations held
in Punta del Este in 1967 and in the subsequent
response of the Minister for Foreign Affairs of
Chile the opposing views of Bolivia and Chile
regarding the nature of the exchange of Notes of
1950 were again in evidence.
7. THE CHARAÑA PROCESS
60. On 15 March 1974, a Joint Communiqué was
signed by the Presidents of Bolivia and Chile, General
Banzer and General Pinochet, respectively,
expressing their agreement to initiate negotiations
on “pending and fundamental issues for both
nations”.
61. On 9 December 1974, several States of Latin
America, including Bolivia and Chile, signed the
Declaration of Ayacucho which specified, regarding
the Bolivian situation, that:
“Upon reaffirming the historic commitment
to strengthen, once more, the unity and
solidarity between our peoples, we offer the
greatest understanding to the landlocked condition
Law Animated World, 15 January 2019
F-18 Bolivia v. Chile [ICJ-Hague]
affecting Bolivia, a situation that demands the
most attentive consideration leading towards
constructive understanding.”
62. On 8 February 1975, a Joint Declaration was
signed at Charaña by the Presidents of Bolivia and
Chile, known as the Charaña Declaration, which
stated, inter alia (Bolivia‟s translation):
“3. In this regard, the Presidents reaffirmed
their full support of the Declaration of
Ayacucho in which the spirit of solidarity
and openness to understandings of this part
of America is faithfully reflected.
4. Both Heads of State, within a spirit of
mutual understanding and constructive
intent, have decided (translated by Chile as
“have resolved”) to continue the dialogue, at
different levels, in order to search for
formulas (translated by Chile as “seek
formulas”) to solve the vital issues that both
countries face, such as the landlocked
situation that affects Bolivia, taking into
account the mutual interests (translated by
Chile as “their reciprocal interests”) and
aspirations of the Bolivian and Chilean
peoples.
5. The two Presidents have decided
(translated by Chile as “have resolved”) to
continue developing a policy of harmony and
understanding so that, in an atmosphere of
cooperation, the formulas for peace and
progress in the continent will be found.”
(“3. En este sentido, los Presidentes
reafirmaron su plena adhesión a la Declaración
de Ayacucho, en la que se refleja fielmente un
espíritu solidario y abierto al entendimiento en
esta parte de América. 4. Ambos mandatarios,
con ese espíritu de mutua comprensión y
ánimo constructivo, han resuelto se continúe el
diálogo a diversos niveles, para buscar
fórmulas de solución a los asuntos vitales que
ambos países confrontan, como el relativo a la
situación de mediterraneidad que afecta a
Bolivia, dentro de recíprocas conveniencias y
atendiendo a las aspiraciones de los pueblos
boliviano y chileno. 5. Los dos Presidentes han
Law Animated World, 15 January 2019
44
(2019) 1 LAW
resuelto seguir desarrollando una política en
favor de la armonía y el entendimiento, para
que, en un clima de cooperación se encuentre,
en conjunto, una fórmula de paz y progreso en
nuestro Continente.”)
63. In a speech of 11 September 1975, the President of
Chile, General Pinochet, stated that:
“with deep satisfaction I can note ... the resuming
of our traditional links with Bolivia, which has
been suspended for over thirteen years. Since
the Charaña meeting with the President of
Bolivia, we have repeated our unchanging
purpose of studying, together with that brother
country, within the framework of a frank and
friendly negotiation, the obstacles that limit
Bolivia‟s development on account of its landlocked
condition. We trust we will find a just, timely
and lasting solution.”
64. In pursuance of the “dialogue” referred to in
the Joint Declaration of Charaña, Bolivia proposed
guidelines for negotiations on 26 August 1975. In
December of that year, Chile presented its
counter-proposal for guidelines, which included a
condition of territorial exchange. It reads as
follows:
“(b) On this basis, the Chilean response is based
on a mutually convenient arrangement that would
take into account the interests of both countries
and that would not contain any innovation to
the provisions of the Treaty of Peace, Amity,
and Commerce signed between Chile and
Bolivia on 20 October 1904.
(c) As His Excellency President Banzer
stated, the cession to Bolivia of a sovereign
maritime coastline, linked to Bolivian territory
through an equally sovereign territorial strip,
would be considered.
(d) Chile would be willing to negotiate with
Bolivia the cession of a strip of territory north of
Arica up to the Concordia Line based on the
following delimitations:
♠ North Boundary: Chile‟s current boundary
with Peru.
♠ South Boundary: Gallinazos ravine and
the upper edge of the ravine north of the
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
River Lluta, (so that the A-15 highway from
Arica to Tambo Quemado would in its
entirety be part of Chilean territory) up until
a point to the South of Puquios Station, and
then an approximately straight line passing
through contour 5370 of Cerro Nasahuento
and extending to the current international
boundary between Chile and Bolivia.
♠ Area: the cession would include the land
territory described above and the maritime
territory comprised between the parallels of
the end points of the coast that would be
ceded (territorial sea, economical zone, and
submarine shelf).
(e) The Government of Chile rejects, for
being unacceptable, the cession of territory
to the south of the indicated limit, that could
affect in any way the territorial continuity of
the country.
(f) The cession to Bolivia described in
section (d) would be subject to a
simultaneous exchange of territories, that is
to say, Chile would at the same time receive
in exchange for what it hands over a
compensatory area at least equal to the area
of land and sea ceded to Bolivia.
The territory that Chile would receive from
Bolivia could be continuous or composed of
different portions of border territory.
........................................................................
...........................................................
(i) The Government of Bolivia would
authorize Chile to use all of the waters in the
River Lauca.
(j) The territory ceded by Chile would be
declared a Demilitarized Zone and, in
accordance with previous conversations, the
Bolivian Government would undertake to
obtain the express guarantee of the
Organization of American States with
respect to the inviolability of the ceded land
strip.
........................................................................
...........................................................
45
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(m) Bolivia shall commit to respect the
easements in favor of Peru established in the
Chilean-Peruvian Treaty of 3 June 1929.
(n) The force of this agreement shall be
conditioned upon Peru‟s prior agreement in
accordance with Article 1 of the
Supplementary Protocol to the afore-
mentioned Treaty.”
65. Chile‟s proposal was accepted by Bolivia as a
basis for the negotiations. However, in January 1976,
Bolivia specified that its acceptance of the condition of
the territorial exchange was subject “to a clarification of
the maritime area, in view of the fact that the
extension of internal waters, territorial sea and
patrimonial sea has not yet been defined by the
International Community” and it reserved “the
right to negotiate the areas that might be
potentially exchanged”. In March 1976, the
Minister for Foreign Affairs of Bolivia recalled
that Bolivia had not assumed definitive
commitments on this issue and declared as
follows:
“We have categorically declared that we
accept global bases of negotiation that take
into account the reciprocal interests of our
two countries, particularly as regards those
matters on which there is common ground
between us. All other matters contained in
the documents forming the background to
the negotiations, i.e. Bolivia‟s proposal and
the Government of Chile‟s response, would
be addressed at a later stage of the
negotiations. Consequently, we want to
make clear that our Government has not
accepted the demilitarization of the area to be
handed over to Bolivia, inasmuch as it would
lead to a limitation of sovereignty, the use of
the waters of the Lauca River as a whole, or
a territorial exchange that would extend over
maritime areas.”
66. By an exchange of Notes of 28 July and 11
August 1976, Chile and Bolivia agreed to establish a
mixed permanent commission, which was created on
18 November 1976, “to discuss any issues of
common interest to both countries”. Throughout
Law Animated World, 15 January 2019
F-20 Bolivia v. Chile [ICJ-Hague]
1976, at several junctures, Bolivia confirmed that
it was willing to consider transferring certain
areas of its territory for an equivalent portion of
Chilean territory.
67. On 19 December 1975, pursuant to the
guidelines for negotiations and the
Supplementary Protocol to the Treaty of Lima of
3 June 1929, Chile asked Peru whether it agreed with
the territorial cession envisaged between Bolivia and
Chile. In November 1976, Peru replied with a counter-
proposal for the creation of an area under tripartite
sovereignty, which was not accepted by either Chile or
Bolivia. However, Peru refused to change its position
on this matter.
68. On 24 December 1976, the President of
Bolivia, General Banzer, publicly announced that
he “propose[d] that the Government of Chile
modify its proposal to eliminate the condition
regarding an exchange of territory” if they were
to continue the negotiations. However,
throughout 1977, the negotiations continued on
the basis of the exchanges of 1975. On 10 June
1977, the Ministers for Foreign Affairs of Bolivia and
Chile issued a Joint Declaration, stating that:
“[t]hey emphasize that the dialogue established
via the Declaration of Charaña reflects the
endeavouring of the two governments to deepen
and strengthen the bilateral relations between
Chile and Bolivia by seeking concrete solutions to
their respective problems, especially with
regard to Bolivia‟s landlocked situation.
Along these lines, they indicate that,
consistently with this spirit, they initiated
negotiations aimed at finding an effective solution
that allows Bolivia to count on a free and
sovereign outlet to the Pacific Ocean.
Taking as a basis both Ministers‟
constructive analysis of the course of the
negotiations regarding Bolivia‟s vital
problem, they resolve to deepen and activate
their dialogue, committing to do their part to
bring [their] negotiation to a happy end as
soon as possible.
Consequently, they reaffirmed the need to
pursue the negotiations from their current
status”.
Law Animated World, 15 January 2019
46
(2019) 1 LAW
69. In a letter of 21 December 1977, the President
of Bolivia informed his Chilean counterpart that,
in order to continue the negotiations, new
conditions should be established to achieve the
objectives set by the Joint Declaration of
Charaña, notably that both the condition of
territorial exchange and Peru‟s proposal for a
zone of shared sovereignty between the three
countries should be withdrawn. In January 1978,
Chile informed Bolivia that the guidelines for
negotiations agreed in December 1975 remained
the foundation of any such negotiations.
70. On 17 March 1978, Bolivia informed Chile that it
was suspending diplomatic relations between them,
given Chile‟s lack of flexibility with respect to the
conditions of the negotiations and Chile‟s lack of
effort to obtain Peru‟s consent to the exchange of
territory.
8. Statements by Bolivia and Chile at
the Organization of American States and
resolutions adopted by the Organization
71. On 6 August 1975, the Permanent Council of the
OAS, of which Bolivia and Chile are Member
States, adopted by consensus resolution CP/RES. 157
which stated that Bolivia‟s landlocked status was a
matter of “concern throughout the hemisphere” , and
that all American States offered their co-
operation in “seeking solutions” in accordance
with the principles of international law and the
Charter of the OAS.
72. This resolution was followed by 11 other
resolutions, reaffirming the importance of
dialogue and of the identification of a solution to
the maritime problem of Bolivia, adopted by the
General Assembly of the OAS between 1979 and
1989. Chile did not vote in favour of any of the 11
resolutions, but did not oppose consensus on three
occasions, while making declarations or
explanations with respect to the content and legal
status of the resolutions adopted.
73. In particular, on 31 October 1979, the General
Assembly of the OAS adopted resolution AG/RES.
426, which stated that it was “of continuing
hemispheric interest that an equitable solution be found
whereby Bolivia [would] obtain appropriate sovereign
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
access to the Pacific Ocean”. The representative of
Chile protested against the draft resolution, contesting
the jurisdiction of the General Assembly of the
OAS in this matter, and added in a Statement of
31 October 1979 that:
“Consequently, Chile emphatically declares that,
in accordance with the legal rules indicated,
this resolution does not obstruct it or bind it or
obligate it in any way.
On repeated occasions I have indicated
Chile‟s willingness to negotiate a solution with
Bolivia to its aspiration to have free and sovereign
access to the Pacific Ocean. The way to reach that
goal is direct negotiation, conducted at a level
of professionalism and mutual respect,
without any interference, suggestions or dictates
from anyone.
Once again Bolivia has rejected this way, and the
path that it has chosen through this resolution, in
an attempt to condition and put pressure on
Chile, creates an insuperable obstacle to opening
negotiations that will satisfy its aspiration and
duly contemplate the dignity and sovereignty
of both parties.
This Assembly has closed that path. It has made
the possibility of Bolivia obtaining satisfaction of
its maritime aspiration more remote.
As long as it insists on the path indicated by this
resolution, as long as it rejects the proper and
logical path of free negotiations without any
conditions between the two countries, as
long as it attempts to put pressure on Chile
through foreign interference, Bolivia will have
no outlet to the sea through Chilean territory. The
responsibility will not have been Chile‟s.”
74. In 1983, the General Assembly of the OAS adopted
resolution AG/RES. 686. Both Bolivia and Chile
took part in drafting this resolution through the
good offices of Colombia, which recommended a
process of
“rapprochement ... directed toward
normalizing relations [between Bolivia and
Chile] and overcoming the difficulties that
separate them – including, especially, a
formula for giving Bolivia a sovereign outlet to
the Pacific Ocean”.
47
F-21
Chile did not oppose consensus, expressing
support for the draft resolution, with some
reservations.
75. In 1987 and 1988, the General Assembly of
the OAS issued two resolutions – AG/RES. 873
and AG/RES. 930 (XVIII-0/88) – expressing
“regret ... that the latest talks held between
Chile and Bolivia were broken off, and to
again urge the [S]tates directly involved in
this problem to resume negotiations in an
effort to find a means of making it possible
to give Bolivia an outlet to the Pacific
Ocean”.
9. THE “FRESH APPROACH” OF 1986-1987
76. After the presidential elections in Bolivia in July
1985, new negotiations were opened between Bolivia
and Chile, within the framework of what was called
the “fresh approach”. In November 1986, the
renewal of Bolivia and Chile‟s negotiations was
reported to the General Assembly of the OAS
which took note of it with the adoption of
resolution AG/RES. 816. On 13 November 1986,
the Ministers for Foreign Affairs of Bolivia and
Chile each issued a communiqué in which they
stated that they were to carry out the talks,
initiated that year, in a meeting scheduled in April
1987. In his communiqué, the Minister for
Foreign Affairs of Bolivia specified that they
were to consider “the aspects related to the
maritime issue of Bolivia”.
77. The meeting held between 21 and 23 April 1987
in Montevideo, Uruguay, between the Parties was
opened by speeches of the Ministers for Foreign
Affairs of Chile and Bolivia. During this meeting,
Bolivia presented two alternative proposals to gain
access to the Pacific Ocean, both involving the
transfer of a part of Chilean territory. The first
proposal involved the sovereign transfer to
Bolivia of a strip of land linked to the maritime
coast and the second one proposed the transfer of
a “territorial and maritime enclave in the north of
Chile”, with three different alternative locations
that would not “affect the territorial continuity of
Chile”. On 9 June 1987, Chile rejected both proposals.
On 17 June, before the General Assembly of the
Law Animated World, 15 January 2019
F-22 Bolivia v. Chile [ICJ-Hague]
OAS, the representative of Bolivia announced the
suspension of bilateral negotiations between the
two States as a consequence of their inability to
reach agreement based on its proposals of April
1987. By a resolution of 14 November 1987, the
General Assembly of the OAS recorded the
discontinuance of the talks between Chile and Bolivia .
10. The Algarve Declaration (2000)
and the 13-Point Agenda (2006)
78. In 1995, the Parties resumed their discussions.
They launched a “Bolivian-Chilean mechanism of
Political Consultation” to deal with bilateral issues.
On 22 February 2000, the Ministers for Foreign
Affairs of both countries issued a Joint Communiqué,
the “Algarve Declaration”, envisaging a working
agenda which would include “without any
exception, the essential issues in the bilateral
relationship”.
79. From 2000 to 2003, the Parties engaged in
discussions regarding a Chilean concession to
Bolivia for the creation of a special economic
zone for an initial time period of fifty years, but
the project was finally rejected by Bolivia. On 1
September 2000, the Presidents of Bolivia and
Chile, General Banzer and Mr. Lagos, issued a
Joint Communiqué in which they “reiterated ...
the willingness of their Governments to engage in
a dialogue on all issues concerning their bilateral
relations”.
80. Following different exchanges throughout
2005 and 2006, on 17 July 2006, the Vice-
Ministers for Foreign Affairs of Bolivia and Chile
publicly announced a 13-Point Agenda,
encompassing “all issues relevant to the bilateral
relationship” between the Parties, including the
“maritime issue” (Point 6). The topics included in
the 13-Point Agenda, notably the question of the
maritime issue, were discussed in the subsequent
meetings of the Bolivian-Chilean mechanism of
Political Consultation until 2010.
81. In 2009 and 2010, the creation of a Bolivian enclave
on the Chilean coast was discussed between the Parties .
In January 2011, the Parties agreed to continue
the discussions with the establishment of a High
Level Bi-National Commission.
Law Animated World, 15 January 2019
48
(2019) 1 LAW
82. On 7 February 2011, the Bolivian and Chilean
Ministers for Foreign Affairs issued a joint
declaration stating that:
“The High level Bi-national Commission
examined the progress of the Agenda of the
13 Points, especially the maritime issue ...
The Ministers of Foreign Affairs have also
set out future projects which, taking into
account the sensitivity of both Governments,
will aim at reaching results as soon as
possible, on the basis of concrete, feasible,
and useful proposals for the whole of the
agenda.”
83. On 17 February 2011, the President of
Bolivia, Mr. Morales, requested “a concrete
proposal by 23 March [2011] ... as a basis for a
discussion”. During a meeting on 28 July 2011,
the President of Chile, Mr. Piñera, reiterated to
his Bolivian counterpart, Mr. Morales, the terms
of his proposal based on the three following
conditions: the compliance with the 1904 Peace
Treaty, the absence of grant of sovereignty and
the modification of the provision of the Bolivian
Constitution referring to the right of Bolivia to an
access to the Pacific Ocean. Given the divergent
positions of the Parties, the negotiations came to an end ,
as the statements of 7 June 2011 of the Heads of
the Bolivian and Chilean Legation before the
General Assembly of the OAS show.
II. PRELIMINARY CONSIDERATIONS
84. Before examining the legal bases invoked by
Bolivia with regard to Chile‟s alleged obligation
to negotiate Bolivia‟s sovereign access to the
Pacific Ocean, the Court will analyse the meaning
and scope of Bolivia‟s submissions.
85. In its submissions, which have remained
unchanged since the Application, Bolivia has
requested the Court to adjudge and declare that
“Chile has the obligation to negotiate with
Bolivia in order to reach an agreement granting
Bolivia a fully sovereign access to the Pacific
Ocean”.
86. While States are free to resort to negotiations or
put an end to them, they may agree to be bound by an
obligation to negotiate. In that case, States are
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
required under international law to enter into
negotiations and to pursue them in good faith. As
the Court recalled in the North Sea Continental
Shelf cases, States “are under an obligation so to
conduct themselves that the negotiations are
meaningful, which will not be the case when either of
them insists upon its own position without
contemplating any modification” (I.C.J. Reports
1969, p. 47, para. 85). Each of them “should pay
reasonable regard to the interests of the other”
(Application of the Interim Accord of 13 September
1995 (the former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011 (II), p. 685,
para. 132).
87. Negotiations between States may lead to an
agreement that settles their dispute, but,
generally, as the Court observed quoting the
Advisory Opinion on Railway Traffic between
Lithuania and Poland (P.C.I.J., Series A/B No.
42, p. 116), “an obligation to negotiate does not
imply an obligation to reach an agreement” (Pulp
Mills on the River Uruguay (Argentina v.
Uruguay), Judgment, I.C.J. Reports 2010 (I), p.
68, para. 150). When setting forth an obligation to
negotiate, the parties may, as they did for instance
in Article VI of the Treaty on the Non-
Proliferation of Nuclear Weapons, establish an
“obligation to achieve a precise result” (Legality
of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 264,
para. 99). Bolivia‟s submissions could be
understood as referring to an obligation with a
similar character.
88. As the Court observed in its Judgment on the
preliminary objection, “Bolivia does not ask the
Court to declare that it has a right to sovereign
access to the sea” (I.C.J. Reports 2015 (II), p.
605, para. 33). What Bolivia claims in its
submissions is that Chile is under an obligation to
negotiate “in order to reach an agreement
granting Bolivia a fully sovereign access” (ibid.,
para. 35).
89. In its Judgment on Chile‟s preliminary
objection, the Court determined “that the subject-
matter of the dispute is whether Chile is obligated
to negotiate in good faith Bolivia‟s sovereign
49
F-23
access to the Pacific Ocean” (ibid., para. 34). As
the Court observed, this alleged obligation does
not include a commitment to reach an agreement
on the subject-matter of the dispute.
90. The term “sovereign access” as used in
Bolivia‟s submissions could lead to different
interpretations. When answering a question raised
by a Member of the Court at the end of the
hearings on Chile‟s preliminary objection,
Bolivia defined sovereign access as meaning that
“Chile must grant Bolivia its own access to the
sea with sovereignty in conformity with
international law”. In its Reply, Bolivia further
specified that a “sovereign access exists when a
State does not depend on anything or anyone to
enjoy this access” and that “sovereign access is a
regime that secures the uninterrupted way of
Bolivia to the sea – the conditions of this access
falling within the exclusive administration and
control, both legal and physical, of Bolivia”.
III. THE ALLEGED LEGAL BASES OF AN
OBLIGATION TO NEGOTIATE BOLIVIA‟S
SOVEREIGN ACCESS TO THE PACIFIC OCEAN
91. In international law, the existence of an
obligation to negotiate has to be ascertained in the
same way as that of any other legal obligation.
Negotiation is part of the usual practice of States
in their bilateral and multilateral relations.
However, the fact that a given issue is negotiated
at a given time is not sufficient to give rise to an
obligation to negotiate. In particular, for there to
be an obligation to negotiate on the basis of an
agreement, the terms used by the parties, the
subject-matter and the conditions of the
negotiations must demonstrate an intention of the
parties to be legally bound. This intention, in the
absence of express terms indicating the existence
of a legal commitment, may be established on the
basis of an objective examination of all the
evidence.
92. Bolivia invokes a variety of legal bases on
which an obligation for Chile to negotiate
Bolivia‟s sovereign access to the Pacific Ocean
allegedly rests. The arguments concerning these
Law Animated World, 15 January 2019
F-24 Bolivia v. Chile [ICJ-Hague]
bases will be examined in the following
paragraphs.
93. The Court will first analyse whether any of
the instruments invoked by the Applicant, in
particular bilateral agreements, or declarations
and other unilateral acts, gives rise to an
obligation to negotiate Bolivia‟s sovereign access
to the Pacific Ocean. The Court will then
examine, if necessary, the other legal bases
invoked by the Applicant, namely acquiescence,
estoppel and legitimate expectations. Finally, the
Court will address, if warranted, the arguments
based on the Charter of the United Nations and on
the Charter of the OAS.
1. BILATERAL AGREEMENTS
94. Bolivia‟s claim mainly rests on the alleged
existence of one or more bilateral agreements that
would impose on Chile an obligation to negotiate
Bolivia‟s sovereign access to the Pacific Ocean.
According to Bolivia, the Parties reached some
agreements that either establish or confirm
Chile‟s obligation to negotiate. These alleged
agreements occurred in different periods of time
and will be analysed separately in chronological
order.
95. Bolivia argues that, like treaties in written
form, oral and tacit agreements can produce legal
effects and be binding between the parties.
Bolivia submits that, even though the 1969
Vienna Convention on the Law of Treaties
(hereinafter the “Vienna Convention”) does not
apply to such agreements, their legal force,
according to Article 3 of the Vienna Convention,
is not affected. Bolivia maintains that, whether an
instrument is capable of setting forth binding
obligations is a matter of substance, not of form.
Bolivia contends that the intention of the Parties
to create rights and obligations in a particular
instrument must be identified in an objective
manner.
96. Chile acknowledges that, in order to assess
whether there is a binding international agreement, the
intention of the Parties must be established in an
objective manner. However, Chile argues that,
following an analysis of the text of the
Law Animated World, 15 January 2019
50
(2019) 1 LAW
instruments invoked by Bolivia and the
circumstances of their formation, neither State
had the intention to create a legal obligation to
negotiate Bolivia‟s sovereign access to the sea.
According to Chile, an expression of willingness to
negotiate cannot create an obligation to negotiate on the
Parties. Chile argues that, if the words used “are
not suggestive of legal obligations, then they will
be characterizing a purely political stance”. Chile
further maintains that only in exceptional cases has
the Court found that a tacit agreement has come into
existence.
**
97. The Court notes that, according to customary
international law, as reflected in Article 3 of the
Vienna Convention, “agreements not in written
form” may also have “legal force”. Irrespective of
the form that agreements may take, they require
an intention of the parties to be bound by legal
obligations. This applies also to tacit agreements.
In this respect, the Court recalls that “[e]vidence
of a tacit legal agreement must be compelling”
(Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007 (II), p. 735, para. 253).
A. The diplomatic exchanges of the 1920s
98. In Bolivia‟s view, the 1920 “Acta
Protocolizada” of a meeting between the Minister
for Foreign Affairs of Bolivia and the Minister
Plenipotentiary of Chile in La Paz (see
paragraphs 26-31 above) “plainly [constitutes] an
agreement to negotiate sovereign access” to the
sea. In that respect, Bolivia specifies that the
commitment in this “Acta Protocolizada” was
given by State representatives vested with the
authority to bind their State. Bolivia also
contends that the terms used confirmed Chile‟s
intention to be legally bound by the instrument.
Bolivia acknowledges that the penultimate clause
in the “Acta Protocolizada” excludes the
formation of rights and obligations for the Parties,
but submits that this clause should not be read in
isolation. Bolivia maintains that, in light of the
full text and context of the minutes, “the
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
reservation refers to the modality of sovereign
access rather than the agreement to negotiate such
access”. In Bolivia‟s view, Chile‟s statement that
it is willing to seek that Bolivia “acquire an
access to the sea of its own” indicates that only
the specific modalities of Bolivia‟s sovereign
access to the sea would not be binding until the
conclusion of a formal agreement and that Chile
had agreed to undertake the necessary
negotiations for that purpose.
99. Bolivia also argues that the specific terms of
the correspondence preceding the “Acta
Protocolizada” confirm the intention of the
Parties as reflected in the minutes. In particular,
according to Bolivia, the Minister Plenipotentiary
of Chile in La Paz made on 9 September 1919 a
proposal indicating Chile‟s commitment to
negotiate Bolivia‟s sovereign access to the Pacific
Ocean (see paragraph 27 above). Bolivia recalls
that in this instrument Chile accepted “to initiate
new negotiations aimed at satisfying the
aspirations of the friendly country, subject to
Chile‟s triumph in the plebiscite”. Bolivia
observes that the terms of this proposal were
reproduced almost in their entirety in the “Acta
Protocolizada”.
100. Moreover, Bolivia contends that the follow-
up exchanges to the “Acta Protocolizada”
confirm that Chile was under an obligation to
negotiate with Bolivia. For instance, Bolivia
recalls the letter of 19 September 1922 from the
Chilean Delegate to the Assembly of the League
of Nations according to which Chile “expressed
the greatest willingness to enter into direct
negotiations, which it would conduct in a spirit of
frank conciliation, and in the ardent desire that
the mutual interests of the two parties might be
satisfied” (see paragraph 35 above). According to
Bolivia, further reassurances were given in the
following year through various Notes from the
Chilean Government.
101. Chile focuses on the penultimate clause of
the “Acta Protocolizada”, according to which
Bolivia‟s Minister for Foreign Affairs stated that
no rights or obligations could be created for the
51
F-25
States whose representatives made the
declarations, and maintains that, contrary to
Bolivia‟s position, this express statement is
indicative of the Parties‟ intention not to establish
any legal obligation. According to Chile, given
that the discussions reflected in the minutes are
not limited to the modalities of access to the sea,
Bolivia‟s explanation of the penultimate clause
cannot stand. Irrespective of this clause, Chile
maintains that the whole text of the “Acta
Protocolizada” makes it clear that no legal
obligation was either created or confirmed with
this instrument.
102. Chile specifies that the correspondence preceding
or following the “Acta Protocolizada” does not support
Bolivia‟s position with regard to their legally binding
force. Chile submits that it is not possible to detect
in the language of such correspondence an
intention by both Parties to establish an
obligation to negotiate.
103. With regard to subsequent exchanges,
Bolivia recalls that in a memorandum of 4
December 1926 (see paragraph 44 above) Chile
indicated that it “ha[d] not rejected the idea of
granting a strip of territory and a port to the
Bolivian nation”. The Chilean Minister for
Foreign Affairs, Jorge Matte, had submitted this
Memorandum (the so-called “Matte
Memorandum”) to the Secretary of State of the
United States, Frank B. Kellogg, in response to
his proposal, addressed to Chile and Peru, to cede
Tacna and Arica to Bolivia. A copy of the
Memorandum had been given to Bolivia, which
contends that it “accepted the Chilean offer to
proceed in the discussion and examination of the
details of the transfer of territory and a port
referred to in the 1926 Matte Memorandum”. In
Bolivia‟s view, these exchanges amounted to “a
new written agreement reaffirming Chile‟s
commitment to negotiate with Bolivia to grant it a
sovereign access to the sea”. Considering that the
Matte Memorandum was in written form, was issued by
a State representative, recorded Chile‟s previous
commitment and was the result of formal inter-State
communications, Bolivia is of the view that it
demonstrates Chile‟s intention to be bound.
Law Animated World, 15 January 2019
F-26 Bolivia v. Chile [ICJ-Hague]
104. Chile responds that the Matte Memorandum
was addressed to the Secretary of State of the United
States, and not to Bolivia. Even though it was
conveyed through diplomatic channels to Bolivia,
it did not amount to an offer made by Chile to Bolivia.
In any event, it did not reflect any intention by Chile
to bind itself. The Matte Memorandum noted that
the proposal of the Secretary of State “goes much
farther than the concessions which the Chilean
Government has generously been able to make”,
more specifically the part of the proposal
concerning “the definitive cession to the
[R]epublic of Bolivia of the territory in dispute”
between Chile and Peru. Chile specifies that the
wording that is used in the Memorandum does not
denote a legal obligation and only shows Chile‟s
“willingness” to consider certain options. In Chile‟s
view, the Memorandum is not capable of generating
any legal obligation.
**
105. The Court notes that in 1920 the Parties
engaged in negotiations during which Chile
expressed willingness “to seek that Bolivia
acquire its own access to the sea ceding to it an
important part of that zone in the north of Arica
and of the railway line” (“Chile está dispuesto a
procurar que Bolivia adquiera una salida propia al
mar, cediéndole una parte importante de esa zona
al norte de Arica y de la liń ea del ferrocarril” ).
Chile also accepted “to initiate new negotiations
directed at satisfying the aspiration of the friendly
country, subject to the victory of Chile in the
plebiscite” concerning the provinces of Tacna and
Arica. Although these remarks are politically
significant, they do not indicate that Chile had accepted
an obligation to negotiate Bolivia‟s sovereign access to
the Pacific Ocean. Nor does the “Acta
Protocolizada” reveal that such an acceptance
was expressed during the negotiations.
106. The Court recalls that in the case concerning
Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Qatar v. Bahrain),
it had found that signed minutes of a discussion
could constitute an agreement if they
“enumerate[d] the commitments to which the
Parties ha[d] consented” and did not “merely give
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an account of discussions and summarize points
of agreement and disagreement” (Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1994, p.
121, para. 25). The Court observes that the “Acta
Protocolizada” does not enumerate any commitments
and does not even summarize points of agreement and
disagreement. Moreover, the penultimate clause of
these minutes records that the Foreign Minister of
Bolivia stated that “the present declarations do not
contain provisions that create rights, or obligations for
the States whose representatives make them” . The
Chilean Minister Plenipotentiary did not contest
this point. Thus, even if a statement concerning
an obligation to resort to negotiations had been
made by Chile, this would not have been part of
an agreement between the Parties.
107. The Court observes that the exchanges that took
place between the Parties after the “Acta Protocolizada”
also do not indicate that there was an agreement under
which Chile entered into a commitment to negotiate
Bolivia‟s sovereign access to the Pacific Ocean. In this
context, the Matte Memorandum could be considered
a politically significant step. However, it was not
addressed to Bolivia and did not contain any wording
that could show the acceptance on the part of Chile of
an obligation to negotiate or the confirmation of a
previously existing obligation to do so.
B. THE 1950 EXCHANGE OF NOTES
108. Bolivia recalls that on 1 June 1950 it submitted
a Note to Chile in which it proposed that both
Parties “formally enter into direct negotiations to
satisfy Bolivia‟s fundamental need to obtain its
own sovereign access to the Pacific Ocean,
solving the problem of Bolivia‟s landlocked
situation” (see paragraph 51 above). Bolivia also
points out that on 20 June 1950 Chile responded by a
Note of which the Parties provide divergent
translations (see paragraph 52 above). According
to Bolivia‟s translation, the Note indicated that
Chile was “willing to formally enter into direct
negotiations aimed at finding a formula that will
make it possible to give to Bolivia a sovereign
access to the Pacific Ocean of its own, and for
Chile to receive compensation of a non-territorial
character”. This Note moreover mentioned
Chile‟s willingness “to study, in direct
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
negotiations with Bolivia, the possibility of
satisfying [Bolivia‟s] aspirations”.
109. In Bolivia‟s view, this exchange of Notes
constitutes “a treaty under international law, as is
evidenced by the nature and content of the Notes and by
the circumstances that preceded and followed their
adoption”. Bolivia further submits that the terms of
the Notes are “clear and precise” and indicate Chile‟s
intention to be bound to negotiate Bolivia‟s sovereign
access to the Pacific Ocean. In Bolivia‟s view, the
textual differences between the Notes are slight
and do not demonstrate that the Parties had a
different understanding of the subject-matter of
the negotiations: to grant Bolivia sovereign
access to the sea. The Notes, Bolivia maintains,
were negotiated and drafted by the highest
authorities of each State. It is also telling, in
Bolivia‟s view, that Chile did not challenge the
content of Bolivia‟s Note in its own Note.
110. Bolivia argues that the two Notes set forth a
double agreement: one confirming past agreements,
in light of the express references to previous
instruments, and another resulting from the Notes
themselves. Bolivia submits that the Notes cannot be
seen as the combination of a proposal by Bolivia with a
counter-proposal by Chile. According to Bolivia, the
Notes were prepared and negotiated together and
are to be seen as “an exchange of mutual
commitments demonstrating a clear intention to
be bound”. Bolivia maintains that its Note, even
though dated 1 June 1950, was delivered to Chile
on 20 June 1950, the same day the Chilean Note
was delivered to Bolivia. Bolivia contends that the
Notes constitute a single instrument, the content of
which was previously agreed upon by the Parties.
111. Finally, Bolivia maintains that the Parties‟
previous and subsequent conduct confirms their
understanding that they were committing to a legally
binding obligation to negotiate. Bolivia recalls the
fact that it registered the Notes in the Department
of International Treaties of its Ministry of Foreign
Affairs and maintains that both Parties referred to
them, in the following years, as reflecting an
agreement between them.
112. Chile argues that the Notes of June 1950 do not
show the Parties‟ objective intention to be bound. In
53
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Chile‟s view, it is “self-evident” that the Parties did not
conclude an international agreement. Through the
exchange of Notes, the Parties did not create nor
confirm any legal obligation. Chile argues that in its
Note of 20 June 1950 it did not agree to the proposal in
Bolivia‟s Note of 1 June 1950. In its Note, Chile only
stated, according to its own translation, that it was
“open formally to enter into a direct negotiation
aimed at searching for a formula that would make
it possible to give Bolivia its own sovereign
access to the Pacific Ocean”. According to Chile,
the language of its Note only denotes its political
willingness to enter into negotiations. Chile also
points out that the Parties did not commence
negotiations following the exchange.
113. In Chile‟s view, the discussions that took place
prior to the exchange of Notes of June 1950 do not
suggest in any way that the Parties created or confirmed
a legal obligation to negotiate. The same is argued
about the discussions that followed the exchange
of Notes.
114. With regard to subsequent exchanges,
Bolivia recalls that a Chilean memorandum of 10
July 1961 (the so-called Trucco Memorandum)
(see paragraph 55 above) quotes the part of the
Chilean Note of 20 June 1950 which, in Bolivia‟s
translation of the Memorandum, refers to Chile‟s
“full consent to initiate as soon as possible, direct
negotiations aimed at satisfying the fundamental
national need [of Bolivia] of own sovereign
access to the Pacific Ocean”. In Bolivia‟s view,
this Memorandum provides “clear evidence” of
Chile‟s intention to negotiate Bolivia‟s sovereign
access to the sea. Bolivia argues that the
“denomination given to a document is not
determinative of its legal effects” and that the
Trucco Memorandum is not simply an internal
document or an “Aide Memoire”. According to Bolivia,
this Memorandum is an “international act” reflecting
the agreement between the Parties to enter into direct
negotiations with regard to Bolivia‟s sovereign access to
the sea.
115. Chile states that the Trucco Memorandum,
although it was handed over to Bolivia, was an internal
document. It was not an official note, was not signed
and only stated Chile‟s policy at that time. Chile
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F-28 Bolivia v. Chile [ICJ-Hague]
maintains that the language used did not reflect any
sense of legal obligation. The Trucco Memorandum, in
Chile‟s view, did not create or confirm any legal
obligation.
**
116. The Court observes that, under Article 2,
paragraph 1 (a), of the Vienna Convention, a treaty may
be “embodied ... in two or more related instruments”.
According to customary international law as
reflected in Article 13 of the Vienna Convention,
the existence of the States‟ consent to be bound
by a treaty constituted by instruments exchanged
between them requires either that “[t]he
instruments provide that their exchange shall
have that effect” or that “[i]t is otherwise
established that those States were agreed that the
exchange of instruments should have that effect”.
The first condition cannot be met, because nothing has
been specified in the exchange of Notes about its effect .
Furthermore, Bolivia has not provided the Court with
adequate evidence that the alternative condition has
been fulfilled.
117. The Court further observes that the exchange
of Notes of 1 and 20 June 1950 does not follow the
practice usually adopted when an international
agreement is concluded through an exchange of related
instruments. According to that practice, a State
proposes in a note to another State that an
agreement be concluded following a certain text
and the latter State answers with a note that
reproduces an identical text and indicates its
acceptance of that text. Other forms of exchange
of instruments may also be used to conclude an
international agreement. However, the Notes
exchanged between Bolivia and Chile in June 1950 do
not contain the same wording nor do they reflect an
identical position, in particular with regard to the
crucial issue of negotiations concerning Bolivia‟s
sovereign access to the Pacific Ocean. The
exchange of Notes cannot therefore be considered an
international agreement.
118. In any event, Chile‟s Note, whichever translation
given by the Parties is used, conveys Chile‟s willingness
to enter into direct negotiations, but one cannot infer
from it Chile‟s acceptance of an obligation to negotiate
Bolivia‟s sovereign access to the sea.
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119. The Court observes that the Trucco
Memorandum, which was not formally addressed to
Bolivia but was handed over to its authorities, cannot be
regarded only as an internal document. However, by
repeating certain statements made in the Note of
20 June 1950, this Memorandum does not create or
reaffirm any obligation to negotiate Bolivia‟s sovereign
access to the Pacific Ocean.
C. THE 1975 CHARAÑA DECLARATION
120. Bolivia maintains that the Joint Declaration
signed at Charaña on 8 February 1975 (see paragraph
62 above) is also the legal basis of an obligation for
Chile to negotiate Bolivia‟s sovereign access to the
Pacific Ocean. In that Declaration, the Heads of
State of Bolivia and Chile undertook to “continue
the dialogue, at different levels, in order to search
for formulas to solve the vital issues that both
countries face, such as the landlocked situation
that affects Bolivia, taking into account the
mutual interests and aspirations of the Bolivian
and Chilean peoples”. Bolivia argues that this
Declaration has the legal force of a treaty . It is of the
view that, through this Joint Declaration, Bolivia
and Chile reaffirmed, “in precise and unequivocal
terms”, their intention to negotiate Bolivia‟s
sovereign access to the sea. Bolivia also points
out that the Joint Declaration was included in the
Treaty Series of the Ministry of Foreign Affairs
of Chile, thus, it argues, demonstrating the
binding legal character of the instrument.
121. Bolivia further argues that the commitment
comprised in the Charaña Declaration was confirmed in
a number of instances that followed its adoption .
Bolivia notes that the negotiations carried out
after the Charaña Declaration had the object of
the “cession to Bolivia of a sovereign maritime
coast”. On the other hand, Bolivia concedes that
the compensation to be granted to Chile in
exchange for Bolivia‟s sovereign access to the sea
was not the subject of a definitive agreement. On
10 June 1977, the Ministers for Foreign Affairs of
the Parties adopted a further Joint Declaration
(see paragraph 68 above), which in Bolivia‟s
view amounts to an additional commitment to
negotiate its sovereign access to the Pacific
Ocean. Bolivia characterizes this second
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
declaration as another bilateral agreement
between the Parties. Bolivia argues that the two
declarations confirm the obligation set forth in the
exchange of Notes of 1950.
122. Bolivia also mentions that the adoption of the
1975 Joint Declaration allowed the Parties “to
normalize” their diplomatic ties. In Bolivia‟s
opinion, the re-establishment of diplomatic relations
depended on Chile‟s acceptance to undertake
negotiations on sovereign access to the sea ; thus “[t]he
fact that Chile accepted to restore diplomatic
relations necessarily implie[d]” that acceptance.
Bolivia asserts that the failure of the Charaña
process was attributable to Chile, but did not
extinguish Chile‟s obligation to negotiate.
123. In Chile‟s view, the terms of the Charaña
Declaration as well as those of other statements that
followed the adoption of that instrument do not create
or confirm a legal obligation to negotiate . Chile
maintains that a “record of a decision to continue
discussions shows no intention to create a legal
obligation to negotiate”. Also, the fact that Bolivia
agreed to resume diplomatic relations with Chile did not
depend on the creation of an obligation to negotiate .
Chile notes that the publication of the Declaration
in its Treaty Series is not significant because this
series contains a variety of documents other than
treaties.
124. On 19 December 1975, Chile adopted guidelines
for negotiation that envisaged the cession to Bolivia of a
sovereign maritime coast in exchange for Bolivian
territory (see paragraph 64 above). However,
according to Chile, those guidelines did not refer to
any previous obligation to negotiate or give rise to any
new obligation in that regard. Chile also asserts that
throughout the negotiations that followed the
adoption of the 1975 Joint Declaration, it
expressed its willingness to negotiate an
exchange of territories, which it considered to be
an essential condition. With regard to the 1977
Joint Declaration, Chile argues that this instrument
contains “merely an expression of political willingness”
for the Parties to negotiate with regard to Bolivia‟s
landlocked situation.
125. Chile maintains that between 1975 and 1978 it
showed willingness to negotiate in good faith with
55
F-29
Bolivia, but was under no obligation to do so .
Chile is
of the view that, even if such an obligation to
negotiate existed, it would have been discharged
following the meaningful negotiations undertaken
by the Parties in that period and that it could not,
in any case, have survived the suspension by
Bolivia of the diplomatic relations between the
Parties.
**
126. The Court notes that the Declaration of Charaña
is a document that was signed by the Presidents of
Bolivia and Chile which could be characterized as a
treaty if the Parties had expressed an intention to be
bound by that instrument or if such an intention could
be otherwise inferred. However, the overall language
of the Declaration rather indicates that it has the nature
of a political document which stresses the “atmosphere
of fraternity and cordiality” and “the spirit of
solidarity” between the two States, who in the final
clause decide to “normalize” their diplomatic relations.
The wording of the Declaration does not convey the
existence or the confirmation of an obligation to
negotiate Bolivia‟s sovereign access to the Pacific
Ocean. The engagement “to continue the dialogue,
at different levels, in order to search for formulas
to solve the vital issues that both countries face,
such as the landlocked situation that affects
Bolivia”, cannot constitute a legal commitment to
negotiate Bolivia‟s sovereign access to the sea,
which is not even specifically mentioned. While
the Ministers for Foreign Affairs of the Parties
noted in their Joint Declaration of 10 June 1977
that “negotiations have been engaged aiming at
finding an effective solution that allows Bolivia
to access the Pacific Ocean freely and with
sovereignty”, they did not go beyond reaffirming
“the need of continuing with the negotiations”
and did not refer to any obligation to negotiate.
Based on this evidence, an obligation for Chile to
negotiate cannot be inferred from the Declaration
of Charaña.
127. The Court notes, however, that, subsequently, the
Parties engaged in meaningful negotiations, in the
course of which Chile proposed to cede to Bolivia a
sovereign maritime coastline and a strip of territory
north of Arica in exchange for territory. When Peru
was consulted, in accordance with Article 1 of the
Law Animated World, 15 January 2019
F-30 Bolivia v. Chile [ICJ-Hague]
Supplementary Protocol to the 1929 Treaty of
Lima, Peru proposed to place part of Chile‟s coastal
territory under the joint sovereignty of the three States,
which Bolivia and Chile refused (see paragraph 67
above). Consequently, the negotiations came to an
end.
D. THE COMMUNIQUÉS OF 1986
128. Bolivia argues that an agreement resulted from
two communiqués issued by both States in November
1986 as part of the “fresh approach” (see paragraph
76 above). On 13 November 1986, the Minister
for Foreign Affairs of Bolivia issued a
communiqué in which he recalled the talks held
between the Parties during that year and indicated
that “the maritime issue of Bolivia” was to be
considered at a meeting between the Parties in
April 1987. The same day, the Minister for
Foreign Affairs of Chile also issued a
communiqué in which he stated the following:
“We have agreed with the Minister of
Foreign Affairs of Bolivia that, without
prejudice to the important and fruitful talks
and tasks that the Rapprochement Binational
Commission will continue to carry out, both
Foreign Ministers will meet in Montevideo
at the end of April, in order to discuss
matters of substance that are of interest to
both Governments.”
129. Bolivia argues that, even though “[t]he
communiqués were formulated in different terms
... there can be little doubt that both recorded the
existence of an agreement to start formal
negotiations with regard to „matters of
substance‟”, which matters are, in Bolivia‟s view,
those referred to in the 1975 Joint Declaration of
Charaña. Moreover, Bolivia indicates that this
agreement was confirmed by the declaration of the
Chilean Minister for Foreign Affairs of 21 April 1987
(see paragraph 77 above) in which he expressed
his hope that a dialogue between the Parties
would allow them to reach “more decisive stages”
than the ones reached in previous negotiations
and by a press release issued on 23 April 1987
following the meeting of both Foreign Ministers
in Montevideo, Uruguay.
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130. Chile contends that the communiqués of
November 1986 do not record any agreement between
the Parties and do not demonstrate any intention to be
bound. Chile points out that, at the meeting of
April 1987 in Montevideo, Bolivia did not mention
any obligation to negotiate. Referring to the press
release of 23 April 1987, Chile maintains that the
only objective of the meeting was “to become
familiar with the positions of both countries with
respect to the basic issues that are of concern to
the two nations”.
**
131. The Court recalls that in the Aegean Sea
Continental Shelf (Greece v. Turkey) case, it had
observed that there is “no rule of international law
which might preclude a joint communiqué from
constituting an international agreement” and that
whether such a joint communiqué constitutes an
agreement “essentially depends on the nature of the act
or transaction to which the Communiqué gives
expression” (Judgment, I.C.J. Reports 1978, p. 39,
para. 96).
132. The Court notes that the two communiqués of 13
November 1986 are separate instruments, that the
wording used in them is not the same and that,
moreover, neither of these documents includes a
reference to Bolivia‟s sovereign access to the sea . In
any event, the Court does not find in the two
communiqués referred to by Bolivia nor in the Parties‟
subsequent conduct any indication that Chile accepted
an obligation to negotiate the question of Bolivia‟s
sovereign access to the Pacific Ocean.
E. THE ALGARVE DECLARATION (2000)
133. Bolivia recalls that in a joint declaration of 22
February 2000 issued by the Ministers for Foreign
Affairs of Bolivia and Chile (also called the “Algarve
Declaration”) (see paragraph 78 above) the Parties
“resolved to define a working agenda that will be
formalized in the subsequent stages of dialogue and
which includes, without any exception, the essential
issues in the bilateral relationship”. This joint
declaration was followed by a Joint Communiqué of 1
September 2000 of the Presidents of the two States (see
paragraph 79 above), in which the Parties
confirmed their willingness to engage in a dialogue
“with no exclusions”. In Bolivia‟s view, the Algarve
Declaration expresses an agreement between the
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
Parties. Bolivia argues that “[o]nce again, both
Parties indicated their agreement to entirely open-
minded negotiations, „without exclusions‟”.
134. Chile argues that the Algarve Declaration does
not suggest that the Parties agreed to an obligation to
negotiate. According to Chile, the Declaration also
does not refer to any previous obligation to
negotiate or to sovereign access to the sea. Chile
maintains that “[i]t is impossible to find in this
language evidence of any intention to create any
legal obligation”. The Parties have used “classic
diplomatic language” from which no obligation
can be deduced. Chile points out that Bolivia, in a
further statement made by its Minister of Foreign
Affairs in 2002, indicated that the Algarve
Declaration was a confirmation of Bolivia‟s
decision “to keep that option of dialogue as a
State policy”. In Chile‟s view, this demonstrates
that the Declaration did not create or confirm an
obligation to negotiate sovereign access to the sea .
**
135. The Court cannot find in the Algarve Declaration
an agreement which imposes on Chile an obligation to
negotiate Bolivia‟s sovereign access to the Pacific
Ocean. The Algarve Declaration, like the Joint
Communiqué of 1 September 2000, only indicates the
Parties‟ willingness to initiate a dialogue “without any
exception” on a working agenda that was yet to be
defined for the purpose of establishing a “climate
of trust” between the Parties. Moreover, neither
the Algarve Declaration nor the Joint Communiqué
contains a reference to the issue of Bolivia‟s sovereign
access to the sea.
F. THE 13-POINT AGENDA (2006)
136. On 17 July 2006, the Bolivia-Chile Working
Group on Bilateral Affairs issued minutes of a
meeting which became known as the “13-Point
Agenda” (see paragraph 80 above). These minutes
listed all issues to be addressed by Bolivia and Chile in
their bilateral relationship. Point 6 of the Agenda
referred to the “maritime issue” (“tema
marítimo”). Bolivia characterizes this Agenda as an
agreement having a binding nature. In Bolivia‟s view,
there is no doubt that the “maritime issue” covers its
sovereign access to the sea. Bolivia argues that “[i]t
57
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was understood by both Parties that the „maritime
issue‟ was an umbrella term that included the
pending issue of the sovereign access to the sea”.
137. Chile acknowledges that it accepted the
inclusion of the “maritime issue” in the 13-Point
Agenda. However, according to Chile, nothing in this
instrument points to a pre-existing obligation to
negotiate on that subject-matter. Moreover, in
Chile‟s view, the “maritime issue” is a broad
topic but does not include any reference to
sovereign access to the sea. Furthermore, the
Agenda is “overtly diplomatic in character” and
uses broad language which cannot be taken as
indicative of an intention to create or confirm a
legal obligation. According to Chile, it consists
only of “an expression of the political will of both
countries”.
**
138. The Court notes that the item “maritime issue”
included in the 13-Point Agenda is a subject-matter that
is wide enough to encompass the issue of Bolivia‟s
sovereign access to the Pacific Ocean. The short text
in the minutes of the Working Group concerning
the maritime issue only states that “[b]oth
delegations gave succinct reports on the
discussions that they had on this issue in the past
few days and agreed to leave this issue for
consideration by the Vice-Ministers at their
meeting”. As was remarked by the Head of the
Bolivian delegation to the General Assembly of
the OAS, “[t]he Agenda was conceived as an
expression of the political will of both countries to
include the maritime issue”. In the Court‟s view, the
mere mention of the “maritime issue” does not give rise
to an obligation for the Parties to negotiate generally
and even less so with regard to the specific issue of
Bolivia‟s sovereign access to the Pacific Ocean.
*
**
139. On the basis of an examination of the
arguments of the Parties and the evidence
produced by them, the Court concludes, with regard
to bilateral instruments invoked by Bolivia, that these
instruments do not establish an obligation on Chile to
negotiate Bolivia‟s sovereign access to the Pacific
Ocean.
Law Animated World, 15 January 2019
F-32 Bolivia v. Chile [ICJ-Hague]
2. CHILE‟S DECLARATIONS AND
OTHER UNILATERAL ACTS
140. Bolivia submits that Chile‟s obligation to
negotiate Bolivia‟s sovereign access to the Pacific Ocean
is also based on a number of Chile‟s declarations and
other unilateral acts. In Bolivia‟s view, “[i]t is well
established in international law that written and
oral declarations made by representatives of
States which evidence a clear intention to accept
obligations vis-à-vis another State may generate
legal effects, without requiring reciprocal
undertakings from that other State”. Bolivia
maintains that at multiple occasions in its
jurisprudence the Court has taken into account
unilateral acts and has recognized their
autonomous character. According to Bolivia, “no
subsequent acceptance or response from the other
State is required” in order for such acts to
establish legal obligations.
141. For determining the requirements that a
unilateral declaration has to meet in order to be
binding on a State, Bolivia refers to the Court‟s
jurisprudence and to the Guiding Principles applicable
to unilateral declarations of States capable of creating
legal obligations, adopted by the International Law
Commission. According to the latter instrument, a
unilateral declaration is required to be made by an
authority vested with the power to bind the State,
with the intention of binding that State,
concerning a specific matter and formulated in a
public manner. In respect of these criteria, Bolivia
points out that in the present case a number of
relevant declarations were made by Chile‟s Presidents,
Ministers for Foreign Affairs and other high-ranking
representatives. Bolivia further submits that the aim of
the declarations was “clear and precise”: namely, to
negotiate with Bolivia its sovereign access to the Pacific
Ocean. In Bolivia‟s view, through its unilateral
declarations, Chile did not merely promise to negotiate,
but committed itself to reaching a precise objective .
Chile‟s declarations were also made known to
and accepted by Bolivia. Bolivia argues that
“[t]he jurisprudence of the Court does not support the
possibility that State representatives who have made
legally binding declarations on behalf of their
Government may withdraw from their statements and
claim that they were mere political declarations”.
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142. Bolivia identifies a number of declarations and
other unilateral acts made by Chile that, taken
individually or as a whole, give rise, in Bolivia‟s view, to
a legal obligation on Chile to negotiate Bolivia‟s
sovereign access to the Pacific Ocean. With regard to
the period before 1950, Bolivia recalls in
particular the Memorandum of 9 September 1919
(see paragraph 27 above) in which Chile asserted
that it was “willing to seek that Bolivia acquire its
own outlet to the sea, ceding to it an important
part of that area to the north of Arica and of the
railway line within the territories submitted to the
plebiscite stipulated in the Treaty of Ancón”.
Bolivia then refers to a statement made by Chile
at the League of Nations on 28 September 1921
with regard to Bolivia‟s landlocked situation (see
paragraph 34 above). The delegate of Chile stated
that “Bolivia can seek satisfaction through the
medium of direct negotiations of our own
arranging. Chile has never closed that door to
Bolivia”. Bolivia further points out that in a Note
of 6 February 1923 (see paragraph 37 above),
Chile indicated that it was willing to enter into
direct negotiations and stated that it was open to
the conclusion of “a new Pact regarding Bolivia‟s
situation, but without modifying the Peace Treaty
and without interrupting the continuity of the
Chilean territory”.
143. With regard to the period following 1950,
Bolivia recalls that President Videla of Chile, in a
statement dated 29 March 1951 (see paragraph 53
above), declared that:
“the policy of the Chilean Government has
unvaryingly been a single one: to express its
willingness to give an ear to any Bolivian
proposal aimed at solving its landlocked
condition, provided that it is put forward
directly to us and that it does not imply
renouncing our traditional doctrine of respect
for international treaties, which we deem
essential for a peaceful coexistence between
Nations”.
Bolivia also gives weight to the following
statement, made on 11 September 1975 by
President Pinochet of Chile (see paragraph 63
above):
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
“Since the Charaña meeting with the
President of Bolivia, we have repeated our
unchanging purpose of studying, together
with that brother country, within the
framework of a frank and friendly
negotiation, the obstacles that limit Bolivia‟s
development on account of its landlocked
condition.”
Bolivia also recalls that, following the adoption of
the Charaña Declaration, Chile put forward in a Note
dated 19 December 1975 its guidelines for negotiating a
potential exchange of territories (see paragraph 64
above). Chile indicated that it “would be willing
to negotiate with Bolivia the cession of a strip of
territory north of Arica up to the Concordia Line”
based on specific delimitations and that “[t]he
cession ... would be subject to a simultaneous
exchange of territories, that is to say, Chile would
at the same time receive in exchange for what it
hands over a compensatory area at least equal to
the area of land and sea ceded to Bolivia”.
Furthermore, Bolivia points out that in a
statement of 31 October 1979 in front of the
General Assembly of the OAS (see paragraph 73
above), Chile declared that it “ha[d] always been
willing to negotiate with Bolivia”. The Chilean
representative added:
“On repeated occasions, I have indicated
Chile‟s willingness to negotiate a solution
with Bolivia to its aspiration to have free and
sovereign access to the Pacific Ocean. The
way to reach that goal is direct negotiation”.
Bolivia adds that, as part of the “fresh approach”,
the Foreign Minister for Chile reaffirmed, in a
speech of 21 April 1987 related to the meeting
ongoing in Montevideo (see paragraph 77 above),
“the willingness and greatest good will (“la
disposición y la mejor buena fe”) with which
Chile comes to this meeting, with the purpose of
exploring potential solutions that may, through
the timeframe, bring positive and satisfactory
results in the interests of countries”.
144. Chile agrees with Bolivia that unilateral
declarations are capable of creating legal obligations if
they evidence a clear intention on the part of the author
59
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to do so.
Chile affirms that “[t]he intention of the
State issuing a unilateral statement is to be
assessed by regard to the terms used, objectively
assessed”. However, according to Chile, the burden on
the State seeking to prove the existence of a binding
obligation based on a unilateral statement is a heavy
one; the statement must be “clear and specific”,
and the circumstances surrounding the act, as
well as subsequent reactions related to it, must be
taken into account. Chile is of the view that
Bolivia has failed to identify how the content of
any of the unilateral statements Bolivia relies on,
and the circumstances surrounding them, can be
understood as having created a legal obligation.
145. Chile argues that “[a]n objective intention to be
bound by international law to negotiate cannot be
established by a unilateral statement of willingness to
negotiate” – in this case, it requires a clear and
specific statement which would provide evidence
of an intention to be bound to negotiate Bolivia‟s
sovereign access to the sea. Chile further argues
that when the stakes are the highest for a State – as it
submits they are in the present circumstances –
the intention to be bound must be manifest. In Chile‟s
view, the careful language that was adopted
throughout its exchanges with Bolivia indicates that
Chile did not have an intention to be bound. In further
support of its view that no obligation to negotiate
has arisen, Chile also points out that the obligation
Bolivia alleges to exist in the present case could not be
performed unilaterally. In Chile‟s words, “a
commitment to negotiate entails reciprocal obligations
on the part of both the putative negotiating
parties”.
**
146. The Court recalls that it has stated in the
following terms the criteria to be applied in order
to decide whether a declaration by a State entails
legal obligations:
“It is well recognized that declarations made
by way of unilateral acts, concerning legal or
factual situations, may have the effect of
creating legal obligations. Declarations of
this kind may be, and often are, very
specific. When it is the intention of the State
making the declaration that it should become
Law Animated World, 15 January 2019
F-34 Bolivia v. Chile [ICJ-Hague]
bound according to its terms, that intention
confers on the declaration the character of a
legal undertaking, the State being
thenceforth legally required to follow a
course of conduct consistent with the
declaration. An undertaking of this kind, if
given publicly, and with an intent to be
bound, even though not made within the
context of international negotiations, is
binding.” (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, p.
267, para. 43; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p.
472, para. 46.)
The Court also asserted that, in order to determine
the legal effect of a statement by a person representing
the State, one must “examine its actual content as well
as the circumstances in which it was made” (Armed
Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p.
28, para. 49).
147. The Court notes that Chile‟s declarations and
other unilateral acts on which Bolivia relies are
expressed, not in terms of undertaking a legal
obligation, but of willingness to enter into negotiations
on the issue of Bolivia‟s sovereign access to the Pacific
Ocean. For instance, Chile declared that it was
willing “to seek that Bolivia acquire its own
outlet to the sea” and “to give an ear to any
Bolivian proposal aimed at solving its landlocked
condition” (see paragraphs 142 and 143 above).
On another occasion, Chile stated its “unchanging
purpose of studying, together with that brother
country, within the framework of a frank and
friendly negotiation, the obstacles that limit
Bolivia‟s development on account of its
landlocked condition” (see paragraph 143 above).
The wording of these texts does not suggest that Chile
has undertaken a legal obligation to negotiate Bolivia‟s
sovereign access to the Pacific Ocean.
148. With regard to the circumstances of Chile‟s
declarations and statements, the Court further
observes that there is no evidence of an intention on the
part of Chile to assume an obligation to negotiate . The
Law Animated World, 15 January 2019
60
(2019) 1 LAW
Court therefore concludes that an obligation to
negotiate Bolivia‟s sovereign access to the sea cannot
rest on any of Chile‟s unilateral acts referred to by
Bolivia.
3. ACQUIESCENCE
149. Bolivia submits that Chile‟s obligation to
negotiate Bolivia‟s sovereign access to the sea may also
be based on Chile‟s acquiescence. In this context,
Bolivia refers to the Court‟s jurisprudence as
authority for the proposition that the absence of
reaction by one Party may amount to
acquiescence when the conduct of the other Party
required a response (citing Sovereignty over
Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge (Malaysia/Singapore),
Judgment, I.C.J. Reports 2008, pp. 50-51, para.
121).
150. Bolivia refers to a statement made on 26
October 1979 that listed what it considered the
agreements in force on the negotiation of its sovereign
access to the sea. Bolivia also refers to the
declaration made on 27 November 1984 upon
signature of the United Nations Convention on
the Law of the Sea (“UNCLOS”), in which
negotiations with the view of restoring its
sovereign access to the sea were mentioned.
According to Bolivia, these statements required a
response from Chile. Acquiescence to an obligation to
negotiate sovereign access to the sea results from Chile‟s
silence and from the fact that it subsequently engaged in
negotiations with Bolivia.
151. Chile contends that Bolivia has not
demonstrated how in the present case an obligation to
negotiate could have been created by acquiescence, nor
has it pointed to any relevant silence by Chile or
explained how silence by Chile may be taken as tacit
consent to the creation of a legal obligation . In Chile‟s
view, the silence of a State has to be considered in light
of the surrounding facts and circumstances for it to
amount to consent. In Chile‟s words, the burden on
the State alleging acquiescence is “heavy” since it
“involves inferring a State‟s consent from its silence.
That inference must be „so probable as to be almost
certain‟ or „manifested clearly and without any doubt‟.”
Chile notes that in a diplomatic context there can be
no requirement incumbent on a State to answer all the
statements made by counterparts in an international
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
forum. With regard to Bolivia‟s statement upon its
signature of UNCLOS, Chile argues that this
declaration did not call for any response by Chile.
Chile maintains that on no occasion can it be said that
it acquiesced to be bound to negotiate Bolivia‟s
sovereign access to the Pacific Ocean.
**
152. The Court observes that “acquiescence is
equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as
consent” (Delimitation of the Maritime Boundary
in the Gulf of Maine Area (Canada/United States
of America), Judgment, I.C.J. Reports 1984, p.
305, para. 130) and that “silence may also speak,
but only if the conduct of the other State calls for
a response” (Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia/Singapore), Judgment,
I.C.J. Reports 2008, p. 51, para. 121). The Court
notes that Bolivia has not identified any declaration
which required a response or reaction on the part of
Chile in order to prevent an obligation from arising . In
particular, the statement by Bolivia, when signing
UNCLOS, that referred to “negotiations on the
restoration to Bolivia of its own sovereign outlet
to the Pacific Ocean” did not imply the allegation
of the existence of any obligation for Chile in that
regard. Thus, acquiescence cannot be considered a
legal basis of an obligation to negotiate Bolivia‟s
sovereign access to the sea.
4. ESTOPPEL
153. Bolivia invokes estoppel as a further legal basis
on which Chile‟s obligation to negotiate with Bolivia
may rest. In order to define estoppel, Bolivia relies
on the Court‟s jurisprudence and on arbitral
awards. Bolivia indicates that for estoppel to be
established, there must be “a statement or
representation made by one party to another” and
reliance by that other party “to his detriment or to the
advantage of the party making it” (citing Land,
Island and Maritime Frontier Dispute (El
Salvador/Honduras), Application to Intervene,
I.C.J. Reports 1990, p. 118, para. 63). Citing the
award in the Chagos arbitration, Bolivia points
out that four conditions must be met for estoppel to
arise:
61
F-35
“(a) a State has made clear and consistent
representations, by word, conduct, or silence;
(b) such representations were made through an
agent authorized to speak for the State with
respect to the matter in question; (c) the State
invoking estoppel was induced by such
representations to act to its detriment, to suffer a
prejudice, or to convey a benefit upon the
representing State; and (d) such reliance was
legitimate, as the representation was one on
which that State was entitled to rely”
(Chagos Marine Protected Area (Republic of
Mauritius v. United Kingdom), Award, 18
March 2015 (International Law Reports
(ILR), Vol. 162, p. 249, para. 438).
154. Bolivia argues that estoppel does not depend on
State consent; it aims “to provide a basis for
obligations other than the intention to be bound”
(emphasis in the original).
155. Bolivia maintains that Chile, for more than a
century, made a number of consistent and unambiguous
declarations, statements and promises with regard to
Bolivia‟s sovereign access to the sea and that Chile
cannot now deny that it agreed to negotiate with Bolivia
with a view to the latter acquiring sovereign access to
the sea. According to Bolivia, these “were
representations on which Bolivia was entitled to
rely and did rely”.
156. Chile does not contest the requirements of
estoppel as set forth by the jurisprudence referred
to by Bolivia. However, according to Chile,
estoppel plays a role only in situations of uncertainty .
Chile argues that when it is clear that a State did
not express an intent to be bound, estoppel cannot
apply.
157. In the present case, Chile maintains that it is
“manifest” that Chile did not have any intention of
creating a legal obligation to negotiate. Moreover,
Chile asserts that Bolivia did not rely on any
representations made by Chile. Assuming that the
requirements of estoppel would be met, Chile did
not act inconsistently or in denial of the truth of
any prior representation. In Chile‟s view, Bolivia
was unable to show that “there was a clear and
unequivocal statement or representation maintained by
Chile over the course of more than a century that, at all
Law Animated World, 15 January 2019
F-36 Bolivia v. Chile [ICJ-Hague]
times and in all circumstances, it would engage in
negotiations with Bolivia on the topic of a potential
grant to Bolivia of sovereign access to the sea” .
Moreover, Bolivia did not demonstrate how its
position would have changed to its detriment, or
suffered any prejudice because of its reliance on
Chile‟s alleged representations.
**
158. The Court recalls that the “essential elements
required by estoppel” are “a statement or
representation made by one party to another and
reliance upon it by that other party to his detriment or
to the advantage of the party making it” (Land, Island
and Maritime Frontier Dispute (El
Salvador/Honduras), Application to Intervene,
Judgment, I.C.J. Reports 1990, p. 118, para. 63).
When examining whether the conditions laid
down in the Court‟s jurisprudence for an estoppel
to exist were present with regard to the boundary
dispute between Cameroon and Nigeria, the Court
stated:
“An estoppel would only arise if by its acts or
declarations Cameroon had consistently made it
fully clear that it had agreed to settle the boundary
dispute submitted to the Court by bilateral
avenues alone. It would further be necessary that,
by relying on such an attitude, Nigeria had
changed position to its own detriment or had
suffered some prejudice” (Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998,
p. 303, para. 57).
159. The Court finds that in the present case the
essential conditions required for estoppel are not
fulfilled. Although there have been repeated
representations by Chile of its willingness to
negotiate Bolivia‟s sovereign access to the Pacific
Ocean, such representations do not point to an
obligation to negotiate. Bolivia has not demonstrated
that it changed its position to its own detriment or to
Chile‟s advantage, in reliance on Chile‟s representations.
Therefore, estoppel cannot provide a legal basis for
Chile‟s obligation to negotiate Bolivia‟s sovereign access
to the sea.
Law Animated World, 15 January 2019
(2019) 1 LAW
5. LEGITIMATE EXPECTATIONS
160. Bolivia claims that Chile‟s representations
through its multiple declarations and statements over
the years gave rise to “the expectation of restoring”
Bolivia‟s sovereign access to the sea. Chile‟s denial of its
obligation to negotiate and its refusal to engage in
further negotiations with Bolivia “frustrates Bolivia‟s
legitimate expectations”. Bolivia argues that,
“[w]hile estoppel focuses on the position of
the State taking up a stance, and holds it to
its commitments, the doctrine of legitimate
expectations focuses on the position of States
that have relied upon the views taken up by
another State, and treats them as entitled to
rely upon commitments made by the other
State”.
Bolivia also recalls that this principle has been
widely applied in investment arbitration.
161. Chile is of the view that Bolivia has not
demonstrated that there exists in international law a
doctrine of legitimate expectations. Chile maintains
that “[t]here is no rule of international law that
holds a State legally responsible because the
expectations of another State are not met”. It
argues that Bolivia attempts “to circumvent the
requirement of detrimental reliance necessary to
establish estoppel” because it is unable to prove
that it has relied on Chile‟s alleged representation
to its own detriment.
**
162. The Court notes that references to legitimate
expectations may be found in arbitral awards
concerning disputes between a foreign investor and the
host State that apply treaty clauses providing for
fair and equitable treatment. It does not follow from
such references that there exists in general international
law a principle that would give rise to an obligation on
the basis of what could be considered a legitimate
expectation. Bolivia’s argument based on legitimate
expectations thus cannot be sustained.
6. Article 2, paragraph 3, of the Charter of
the United Nations and Article 3 of the
Charter of the Organization of American States
163. Bolivia also argues that a general obligation to
negotiate exists in international law and is reflected in
62
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
Article 2, paragraph 3, as well as in Article 33 of the
Charter of the United Nations. It maintains that this
general obligation applies to any pending issue involving
two or more countries. According to this provision,
international disputes must be settled by peaceful means
“in such a manner that peace and security and justice
are not endangered” (emphasis in the original). In
its oral pleadings, Bolivia developed this
argument and contended that Article 2, paragraph
3, of the Charter reflects “a basic principle of
international law” and imposes a positive
obligation. In Bolivia‟s view, this duty to
negotiate is applicable to all States. It is also
applicable to all international disputes, and not
only to “legal” ones or those endangering the
maintenance of international peace and security.
Bolivia develops a similar argument with regard
to Article 3 of the Charter of the OAS. It argues
that “[a]s with Article 2 (3) of the United Nations
Charter ... the obligation is a positive one:
Member States „shall‟ submit disputes to the
peaceful procedures identified”.
164. Chile recognizes that the Charter of the
United Nations imposes an obligation to settle
disputes via “peaceful means”. However, while
negotiations are one of the methods for settling disputes
peacefully, they do not have to be preferred to other
means of peaceful settlement. Chile points out that
the term “negotiate” does not appear anywhere in
Article 2, paragraph 3, of the Charter. While the
Parties are free to negotiate with their neighbours,
the Charter does not impose on them an
obligation to do so. With regard to Bolivia‟s
argument concerning Article 3 of the Charter of the
OAS, Chile responds that this provision cannot
constitute the legal basis of an obligation for Chile to
negotiate with Bolivia on the issue of Bolivia‟s sovereign
access to the Pacific Ocean.
**
165. The Court recalls that, according to Article 2,
paragraph 3, of the Charter of the United Nations, “[a]ll
Members shall settle their international disputes by
peaceful means in such a manner that international
peace and security, and justice, are not endangered” .
This paragraph sets forth a general duty to settle
disputes in a manner that preserves international peace
and security, and justice, but there is no indication in
63
F-37
this provision that the parties to a dispute are required
to resort to a specific method of settlement, such as
negotiation. Negotiation is mentioned in Article 33
of the Charter, alongside “enquiry, mediation,
conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements” and “other
peaceful means” of the parties‟ choice. However,
this latter provision also leaves the choice of
peaceful means of settlement to the parties
concerned and does not single out any specific
method, including negotiation. Thus, the parties to
a dispute will often resort to negotiation, but have no
obligation to do so.
166. The same approach was taken by resolution 2625
(XXV) of the General Assembly (“Declaration on
Principles of International Law concerning
Friendly Relations and Co-operation among
States in accordance with the Charter of the
United Nations”). Resolution 37/10 (“Manila
Declaration on the Peaceful Settlement of
International Disputes”) also followed the same
approach and proclaimed the “principle of free
choice of means” for the settlement of disputes
(para. 3). All this leads the Court to the conclusion
that no obligation to negotiate Bolivia‟s sovereign access
to the Pacific Ocean arises for Chile under the
provisions of the Charter on the peaceful settlement of
disputes.
167. Article 3 (i) of the Charter of the OAS sets
forth that “[c]ontroversies of an international
character arising between two or more American
States shall be settled by peaceful procedures”.
Article 24 provides that international disputes
between Member States “shall be submitted to the
peaceful procedures set forth” in the Charter,
while Article 25 lists these “peaceful procedures”
as follows: “direct negotiation, good offices,
mediation, investigation and conciliation, judicial
settlement, arbitration, and those which the
parties to the dispute may especially agree upon
at any time”. Resort to a specific procedure such
as “direct negotiation” is not an obligation under
the Charter, which therefore cannot be the legal
basis of an obligation to negotiate sovereign
access to the Pacific Ocean between Bolivia and
Chile.
Law Animated World, 15 January 2019
F-38 Bolivia v. Chile [ICJ-Hague]
7. The resolutions of the General Assembly of
the Organization of American States
168. Bolivia refers to 11 resolutions of the
General Assembly of the OAS which dealt with
the issue of Bolivia‟s sovereign access to the
Pacific Ocean, arguing that they confirmed
Chile‟s commitment to negotiate that issue (see
paragraphs 71-75 above). Bolivia does not contest
that resolutions adopted by the General Assembly
of that Organization are not binding “as such”,
but maintains that they produce certain legal
effects under the Charter of the OAS. Following
the precept of good faith, the Parties must give
due consideration to these resolutions and their
content.
169. Bolivia also maintains that the Parties‟
conduct in relation to the drafting and adoption of
General Assembly resolutions “can reflect,
crystallize or generate an agreement” between
them. Bolivia underlines Chile‟s participation in
the drafting of some of these resolutions. It refers
in particular to resolution No. 686, which urged
Bolivia and Chile to resort to negotiations and
was adopted by consensus.
170. In Chile‟s view, the resolutions of the
General Assembly of the OAS referred to by
Bolivia “neither confirmed any existing
obligation nor created any new one, and like all
OAS resolutions, would have been incapable of
doing so”. Chile argues that resolutions of the
General Assembly are in principle not binding
and that the General Assembly lacks competence
to impose legal obligations on the Parties. In any
event, Chile notes that none of the resolutions in
question mentions a pre-existing obligation for
Chile to engage in negotiations with Bolivia. It
observes that it voted against the adoption of
most of the resolutions in question or did not
participate in the vote; only on three occasions it
did not oppose the consensus for adopting the
resolutions, but joined declarations or
explanations related to their content.
**
Law Animated World, 15 January 2019
64
(2019) 1 LAW
171. The Court notes that none of the relevant
resolutions of the General Assembly of the OAS
indicates that Chile is under an obligation to negotiate
Bolivia‟s sovereign access to the Pacific Ocean. These
resolutions merely recommend to Bolivia and
Chile that they enter into negotiations over the
issue. Also resolution AG/RES. 686, to which
Bolivia calls special attention, only urges the
Parties
“to begin a process of rapprochement and
strengthening of friendship of the Bolivian
and Chilean peoples, directed toward
normalizing their relations and overcoming
the difficulties that separate them 
including, especially, a formula for giving
Bolivia a sovereign outlet to the Pacific
Ocean, on bases that take into account
mutual conveniences, rights and interests of
all parties involved”.
Moreover, as both Parties acknowledge,
resolutions of the General Assembly of the OAS are not
per se binding and cannot be the source of an
international obligation. Chile‟s participation in the
consensus for adopting some resolutions therefore
does not imply that Chile has accepted to be
bound under international law by the content of
these resolutions. Thus, the Court cannot infer from
the content of these resolutions nor from Chile‟s
position with respect to their adoption that Chile has
accepted an obligation to negotiate Bolivia‟s sovereign
access to the Pacific Ocean.
8. The legal significance of instruments,
acts and conduct taken cumulatively
172. In Bolivia‟s view, even if there is no
instrument, act or conduct from which, if taken
individually, an obligation to negotiate Bolivia‟s
sovereign access to the Pacific Ocean arises, all
these elements may cumulatively have “decisive
effect” for the existence of such an obligation.
The historical continuity and cumulative effect of
these elements should be taken into account.
Also, Bolivia asserts that the different rounds of
negotiations were not independent from one
another; “each undertaking or promise to
negotiate was given as an ongoing continuation of
previous undertakings”.
(2019) 1 LAW Bolivia v. Chile [ICJ-Hague]
173. Contrary to Bolivia‟s view, Chile maintains
that an “accumulation of interactions, none of which
created or confirmed a legal obligation, does not create
such an obligation by accretion”. An intention to
become bound by international law cannot arise
out of the repetition of a statement which denotes
no intention to create an obligation. In Chile‟s
words, “[w]hen it comes to founding a legal
obligation, the whole is not greater than the sum
of the parts”; if a series of acts taken individually
are unable to create an obligation, the same is true
if those acts are taken cumulatively. In Chile‟s
view, the interactions between the Parties were
“fragmented”, “discontinuous” and marked by
periods of inactivity and by shifting political
priorities.
**
174. The Court notes that Bolivia‟s argument of a
cumulative effect of successive acts by Chile is
predicated on the assumption that an obligation
may arise through the cumulative effect of a
series of acts even if it does not rest on a specific
legal basis. However, given that the preceding
analysis shows that no obligation to negotiate
Bolivia‟s sovereign access to the Pacific Ocean
has arisen for Chile from any of the invoked legal
bases taken individually, a cumulative
consideration of the various bases cannot add to
the overall result. It is not necessary for the Court
to consider whether continuity existed in the
exchanges between the Parties since that fact, if
proven, would not in any event establish the
existence of an obligation to negotiate Bolivia‟s
sovereign access to the Pacific Ocean.
IV. GENERAL CONCLUSION ON THE
EXISTENCE OF AN OBLIGATION TO
NEGOTIATE SOVEREIGN ACCESS TO
THE PACIFIC OCEAN
175. In light of the historical and factual
background above (see paragraphs 26-83), the
Court observes that Bolivia and Chile have a long
history of dialogue, exchanges and negotiations
aimed at identifying an appropriate solution to the
landlocked situation of Bolivia following the War
of the Pacific and the 1904 Peace Treaty. The
65
F-39
Court is however unable to conclude, on the basis
of the material submitted to it, that Chile has “the
obligation to negotiate with Bolivia in order to
reach an agreement granting Bolivia a fully
sovereign access to the Pacific Ocean” (Bolivia‟s
submissions, see paragraphs 13, 14 and 15
above). Accordingly, the Court cannot accept the
other final submissions presented by Bolivia,
which are premised on the existence of such an
obligation (ibid.).
176. Nevertheless, the Court‟s finding should not
be understood as precluding the Parties from
continuing their dialogue and exchanges, in a
spirit of good neighbourliness, to address the
issues relating to the landlocked situation of
Bolivia, the solution to which they have both
recognized to be a matter of mutual interest. With
willingness on the part of the Parties, meaningful
negotiations can be undertaken.
*
**
177. For these reasons,
THE COURT,
(1) By twelve votes to three,
Finds that the Republic of Chile did not
undertake a legal obligation to negotiate a
sovereign access to the Pacific Ocean for the
Plurinational State of Bolivia;
IN FAVOUR: President Yusuf; Vice-President
Xue; Judges Tomka, Abraham, Bennouna,
Cançado Trindade, Donoghue, Gaja, Sebutinde,
Bhandari, Gevorgian; Judge ad hoc McRae;
AGAINST: Judges Robinson, Salam; Judge ad hoc
Daudet;
(2) By twelve votes to three,
Rejects consequently the other final
submissions presented by the Plurinational
State of Bolivia.
IN FAVOUR: President Yusuf; Vice-President
Xue; Judges Tomka, Abraham, Bennouna,
Cançado Trindade, Donoghue, Gaja, Sebutinde,
Bhandari, Gevorgian; Judge ad hoc McRae;
Law Animated World, 15 January 2019
F-40 Bolivia v. Chile [ICJ-Hague] (2019) 1 LAW

AGAINST: Judges Robinson, Salam; Judge ad hoc

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66
(2019) 1 LAW Alok Kumar Varma v. Union of India & Anr. [IND-SC]
( Carried from p. 26 )
the DSPE Act has to be understood. If the word
―transferred‖ has to be understood in its ordinary
parlance and limited to a change from one post to
another, as the word would normally convey and
on that basis the requirement of ―previous consent
of the Committee‖ is understood to be only in
such cases, i.e. purely of transfer, such an
interpretation would be self-defeating and would
clearly negate the legislative intent. In such an
event it will be free for the State Authority to effectively
disengage the Director, CBI from functioning by
adopting various modes, known and unknown, which
may not amount to transfer but would still have the
same effect as a transfer from one post to another,
namely, cessation of exercise of powers and functions of
the earlier post. This is clearly not what the legislature
could have intended. The long history of evolution
has shown that the institution of the CBI has been
perceived to be necessarily kept away from all kinds of
extraneous influences so that it can perform its role as
the premier investigating and prosecuting agency
without any fear and favour and in the best public
interest. The head of the institution, namely, the
Director, naturally, therefore, has to be the role
model of independence and integrity which can only be
ensured by freedom from all kinds of control and
interference except to the extent that Parliament may
have intended. Such intendment, in our considered
view, would require all Authorities to keep away
from intermingling or interfering in the
functioning of the Director. In a situation where
such interference may at all be called for, public interest
must be writ large against the backdrop of the necessity.
The relevance and adequacy of the reasons giving
rise to such a compelling necessity can only be
tested by the opinion of the Committee
constituted under Section 4A(1) of the DSPE Act
in whom the power to make recommendations for
appointment of the Director has been vested by
Parliament. This alone can provide an adequate
safeguard to ensure the independence of the
office keeping in view the legislative intent, as
found and held by us. In this regard we feel
fortified in saying that the status of the
Committee having undergone an upward
movement by the amendment brought in by the
Lokpal and Lokayuktas Act, 2013 (Act No. 1 of
2014) it cannot but be said that the legislative intent in
67
ISC-13
shielding and insulating the office of the Director from
any kind of extraneous influence has been foremost in
the mind of Parliament which intent found
manifestation in the changes in law brought about
in the circumstances noted above.
37. There is yet another issue of significance that
arises from the weighty arguments advanced in
the course of the long debate that has taken place.
This is with regard to the application of Sections
14, 15 and 16 of the General Clauses Act, 1897 so as to
confer a power in the Central Government to pass
the impugned orders including the order of
appointment of an acting Director of the CBI.
The preceding discussions and our views on the
true and correct meaning of the provisions
contained in Sections 4A & 4B of the DSPE Act
leaves us convinced that the aforesaid provisions
of the General Clauses Act will have no application
to the present case in view of the clear and apparent
intention to the contrary that unequivocally flows from
the aforesaid provisions of the DSPE Act.
38. So far as the correctness of the impugned decisions
on merit is concerned, not much argument have
been made either on the relevance or the
sufficiency of the grounds shown and disclosed
for the impugned decisions. This is, perhaps, on
the understanding of the learned counsels that our
attempts to keep the report of the enquiry by the
CVC ordered on 26th October and 12th November,
2018 in sealed cover was sufficiently indicative
of the mind of the Court that this aspect of the
case should require to be unfolded only if
inevitable and that too in the event of a negative
decision on the jurisdictional question. The
inherent limitation in such an exercise of, if at all
is to be undertaken, is another inhibiting factor.
Be that as it may such an exercise has now become
wholly unnecessary in view of the decision on the
jurisdictional issue.
39. Consequently, in the light of our views as
expressed above we set aside the following orders
dated 23rd October, 2018:
(i) of the CVC divesting the powers,
functions, duties, supervisory role, etc. of
Shri Alok Kumar Verma as Director,
CBI;
Law Animated World, 15 January 2019
ISC-14 Alok Kumar Varma v. Union of India & Anr. [IND-SC]
(ii) of the Government of India, Ministry of
Personnel, Public Grievances and
Pensions, Department of Personnel &
Training divesting Shri Alok Kumar
Verma, Director, CBI of his functions,
powers, duties and supervisory role with
immediate effect and until further orders.
(iii) of the Government of India, Ministry of
Personnel, Public Grievances and
Pensions, Department of Personnel &
Training by which one Shri M.
Nageshwar Rao, IPS, Joint Director, CBI
has been asked to look after the duties
and functions of Director, CBI with
immediate effect.
40. Our interference, as above, will now require
the matter to be considered by the Committee under
Section 4A(1) of the DSPE Act, 1946 which may be so
done at the earliest and, in any case, within a week from
the date of this order. A meeting of the Committee
may be accordingly convened by the competent
authority.
41. As the issue of divestment of power and
authority of the Director, CBI is still open for
consideration by the Committee and our
interference with the impugned orders has been
on the ground indicated above, we deem it proper
to direct that the petitioner Shri Alok Kumar Verma,
Director, CBI, upon reinstatement, will cease and desist
from taking any major policy decisions till the decision
of the Committee permitting such actions and decisions
becomes available within the time frame indicated. We
further make it explicit that the role of the
Petitioner Shri Alok Kumar Verma as the
Director, CBI during the interregnum and in
terms of this order will be confined only to the
exercise of the ongoing routine functions without
any fresh initiative, having no major policy or
institutional implications.
42. Coming to the several IAs filed, we are of the
view that the orders of transfer etc. impugned/
mentioned in the said IAs are a sequel of the three
orders dated 23rd October, 2018 which were
specifically impugned in the writ petitions. As we
Law Animated World, 15 January 2019
68
(2019) 1 LAW
have answered the writ petitions in the manner
indicated above, we do not consider it necessary
to examine the correctness of the further/
consequential orders of transfer etc. and that too
on the basis of interlocutory applications filed in
pending writ petitions under Article 32 of the
Constitution, which stand disposed of by the
present order. However, we leave the parties with
the remedy of challenging the said consequential
orders in an appropriate manner and before the
appropriate forum, if so required and so advised.
43. Both writ petitions and all the IAs are accordingly
disposed of.
*****
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(2019) 1 LAW Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
(2018) 2 LAW ISC-15
SUPREME COURT OF INDIA
AT NEW DELHI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1981 of 2008
Date of Judgment: Monday, 14 January 2019
ASHEESH JAIN … Appellant
Versus
Makrand Singh & Ors. … Respondent(s)
Citation: (2019) 1 LAW ISC-15
CORAM:
N.V. RAMANA, J.
MOHAN M. SHANTANAGOUDAR, J.
***
SHORT NOTES: This recent decision of the Apex Court
makes it clear that in cases of appeal against acquittal the
appellate courts have to be doubly cautious, especially
when dealing with an offence based wholly on
circumstantial evidence. It was observed that in a case
“wherein the High Court has acquitted the accused of all
charges, there is a double presumption in favour of the
accused, as the initial presumption of innocence is further
reinforced by an acquittal by the High Court. In such a case,
this Court will keep in mind that the presumption of
innocence in favour of the accused has been fortified by the
order of acquittal and thus if the view of the High Court is
reasonable and based on the material on record, this Court
should not interfere with the same. Interference is to be made
only when there are compelling and substantial reasons to do
so, and if the ultimate conclusion reached by the High Court is
palpably erroneous, constituting a substantial miscarriage of
justice.”
***
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeals arise from the judgments of
the High Court of Madhya Pradesh, Jabalpur,
Gwalior Bench, passed in Death Reference No.
01 of 2004 and Criminal Appeal No. 312 of 2004.
Vide the impugned judgments, the High Court
acquitted the accused respondents Makrand

Courtesy: Supreme Court of India at http://judis.nic.in/;
Para numbers and emphases in bold ours - IMS.
69
ISC-15
Singh, Raj Bahadur Singh and Shyam Sunder for
the offences punishable under Sections 302 read
with 34, 394 read with 34 and 449 of the Indian
Penal Code (in short ―the IPC‖), and Sections 11
read with 13 of the Madhya Pradesh Dakaiti and
Vyapharan Prabhavit Kshetra Adhiniyam (in
short ―the MPDVPKA‖) and additionally
respondent Makrand Singh for offences under
Section 25(1)(b)(a) read with Section 27 of the
Arms Act and Sections 11 and 13 of the
MPDVPKA for causing the death of three people,
viz. Premchand Jain, his wife Anandi Devi and
unmarried daughter Preeti, and for committing
robbery of Rs. 30,000/- in cash and about Rs.
8,00,000/- worth of gold and silver.
2. The case of the prosecution is reiterated below
in brief:
Deceased Premchand Jain was in the occupation
of money lending, and pawning gold and silver
ornaments. The incident took place on the
intervening night of 4th - 5th January 2003, where
the aforementioned accused persons, on the
pretext of doing electrical repairs in the house of
the deceased, entered the house and committed
the said murder and robbery. After committing
the offence, they locked the house from outside
and fled.
3. The appellant in Criminal Appeal No. 1980 of
2008 is the complainant Ashish Jain (PW26),
who is the nephew of the deceased Premchand.
The appellant upon growing suspicious about
finding the house locked from outside on
5.1.2003, asked some relatives about the
whereabouts of the family, but to no avail.
Therefore, towards the end of the day at around
09:45pm, he informed the Police Station about
the house being suspiciously locked from outside.
The police reached the house, broke open the
lock, and found all three residents lying dead on
the third floor of the house. Multiple injuries
were also noticed on the bodies of the deceased,
and some electrical equipment (such as wires and
a screwdriver) was found inside the house. The
chest in which the deceased Premchand used to
keep the pawned gold and silver ornaments and
Law Animated World, 15 January 2019
ISC-16 Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
cash was found broken open with its contents
missing. Thus, an inference was drawn that the
accused persons, who are electricians, and who
did regular repair works at the house of the
deceased, had committed the said offence. The
first information (Dehati Nalishi) Ex. P5 was
lodged by Ashish Jain, who deposed as PW26.
This first information was registered as the FIR
Ex. P6 soon after. After completing due
procedure and upon investigation, the accused
persons were arrested the next morning. The
robbed gold and silver ornaments, cash, bloodstained
clothes, and certain electrical tools, i.e. a suja and a
chisel, which were said to be the weapons of offence,
were recovered from the possession of the three accused
persons at their instance. The key used to lock the
house from outside after the commission of the crime
was also recovered from a field at the instance of
Accused No.1, Makrand Singh. The robbed
ornaments were said to be the ornaments which
were pledged by different people as a part of the
business run by the deceased. The Naib
Tehsildar, the Executive Magistrate, conducted
the identification of the robbed ornaments by the
pledgors, who identified the ornaments which
belong to them.
4. The Trial Court, upon framing charges and
appreciating evidence, found the accused persons
guilty of the said offences, and sentenced them to
capital punishment.
5. The reference for the death sentence and an
appeal by the accused persons were filed before
the High Court. Both were heard by a Division
Bench; however, the learned judges could not reach a
consensus and had a difference of opinion. One
learned Judge was in favour of acquittal of the
accused persons and another learned Judge
concurred with the judgment of the Trial Court.
Hence, the matter was heard by the learned Third
Judge, and as his findings were in consonance
with acquittal, upon a majority of 2:1, the High Court
acquitted the accused persons from all charges levelled
against them.
6. To satisfy our conscience, we have re-
appreciated the entire evidence. The case mainly
revolves around the statements of Ashish Jain,
Law Animated World, 15 January 2019
70
(2019) 1 LAW
PW26, who is the complainant, Kailash Chandra,
PW12, a last seen witness, and Vinod Kumar
Jain, PW20, another last seen witness, as well as
the recovery made of all the incriminating
materials like the stolen articles, bloodstained
weapons and bloodstained clothes of the accused
at the instance of the accused persons.
7. PW26 has deposed that he is the nephew of the
deceased Premchand and he frequented the house
of the deceased, though he himself lived in a
different house. He sometimes used to help the
deceased Premchand with his business. On the
morning of 5th January, he had planned to visit his
uncle but the house was locked from outside. He
presumed that since his deceased aunt, the wife of
Premchand, was not keeping well, their family
must have taken her for medical examination.
Thereupon, he enquired from their relatives about
Premchand‘s whereabouts, but did not get any
response. Night fell, and Ashish Jain, PW26
along with a few others lodged a report at the
Police Station, City Kotwali, Bhind about the
suspicious circumstances. The police arrived at
the scene, broke open the lock and found the dead
bodies inside the house with the ornaments and
cash stolen from the chest. At the scene of the
crime, PW26 noticed tea tumblers in the kitchen
area, and some electrical equipment lying around
the house. He further deposed that Kailash
Chandra, PW12, who was a neighboring
shopkeeper as well as a relative, had told him that
he had seen the accused persons entering the
house of the deceased at around 6:00/6:30 p.m.
the previous evening carrying a bag containing
electrical equipment. Vinod Kumar Jain, PW20,
had also informed him that he had seen the
accused persons coming out of the said house
between 9:00/9:30 p.m. going towards the
Dhanwanti Bai Dharamshala in a hurried fashion
carrying two bags. Based on this information, the
first information was lodged, naming the accused
persons and their addresses, after which the FIR
was registered.
8. The first circumstance relied upon by the
prosecution is the “last seen circumstance”. PW12,
(2019) 1 LAW Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
Kailash Chandra, who runs a shop neighbouring
the deceased Premchand‘s establishment and
house, is the brother of the deceased Premchand.
He categorically deposed that on the relevant date
at around 6:00/6:30 p.m., while he was sitting
outside his shop, he saw Accused No. 1, Makrand
Singh, Accused No. 2, Raj Bahadur Singh and
Accused No. 3, Shyam Sunder entering the house
of the deceased carrying a bag containing
electrical equipment. He was acquainted with
Accused Nos. 1 and 2, and therefore enquired
about the purpose of their visit, to which they
answered that they had been called to do some
electrical repair work in the house of deceased
Premchand. He had also asked them about the
third person, and they had answered that his name
was Shyam Sunder. He further corroborated the
evidence given by PW26 with regard to finding
the dead bodies, and the broken open chest. He
further stated that he mentioned about the
accused persons entering the house to PW26 and
others soon after the discovery of the bodies.
9. Another important witness for the prosecution
case is Vinod Kumar Jain, PW20, who is a
nephew of the deceased Premchand. He testified
that on the 4th of January, 2003 at around 9:00
p.m., while he was returning home from his shop,
which is nearby, he saw the three accused persons
coming out of the house of the deceased, and
Accused No. 1, Makrand Singh and Accused No.
2, Raj Bahadur Singh were carrying a bag each,
walking in a hurried fashion towards the
Dhanwanti Bai Dharamsala. He further supported
the version of PW26 about finding the bodies and
learning about the robbery. He also deposed that
he had discussed with the people gathered at the
scene of the crime, including PW26, about him
seeing the accused persons exiting the house of
the deceased on the previous night.
10. The Investigating Officer, K.D. Sonakiya
deposed as PW35 before the Trial Court. He had
been present at the scene of the incident from the
start and completed the investigation.
11. The second incriminating circumstance against the
accused persons is the recovery of various articles based
71
ISC-17
on their statements.All the accused persons have
confessed to committing the crime and have led
to the recovery of the stolen gold and silver
ornaments and cash hidden at various places in
their respective houses. A country-made pistol
was also seized at the instance of Accused No. 1
from his possession. Other incriminating material
seized at the instance of the accused persons
includes the blood-stained clothes of the accused
and the bloodstained weapons suja and chisel at
the instance of Accused No.2 and Accused No.1
respectively. The key to the lock used to lock the
house from outside after the commission of the
crime was also seized from a vacant land beside
the house of Accused No. 1 based on his
statement. Ashish Jain, PW26 is the witness for
the recovery of all the materials relating to the
incident.
12. The post-mortem of the three dead bodies was
done by a team of three doctors out of which Dr.
Renu Sharma, PW21 and Dr. U.P.S. Kushwaha,
PW22 were examined by the Trial Court. Upon a
perusal of the Post Mortem Reports, we find that
on the body of the first deceased Premchand,
there were five injuries which were all lacerated
wounds. Upon the body of the second deceased
Anandi Devi also, five lacerated wounds were
found. On the body of the third deceased Preeti,
three lacerated wounds, one incised wound and
one contusion were identified. All the said
injuries were ante-mortem in nature and sufficient
to cause the death of a person in the ordinary
course of nature. The cause of death of all the
deceased was opined to be shock due to
haemorrhage, with the time of death between 12-
24 hours prior to the post-mortem, i.e. between
12 noon of 4th January and 12 noon of 5th
January. The Doctor PW22 in his cross-
examination has deposed that one injury was
inflicted by a hard and sharp weapon, and the rest
of the injuries were inflicted by a hard and blunt
weapon on the deceased.
13. The deceased Premchand‘s hand was found
by the police to be clutching some hair, which
was taken and sent to the Forensic Science
Law Animated World, 15 January 2019
ISC-18 Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
Laboratory along with the seized bloodstained
clothes, weapons and blood recovered from the
floor of the scene of the crime. Hair samples of
Accused Nos. 1 and 2 were also sent along with
these samples to the FSL for examination. The
FSL has found that the hair recovered from the
hand of the deceased was similar in nature to both
the hair samples of Accused No. 1 and Accused
No. 2 (but the results were inconclusive
nevertheless) and that the blood stains found on
the clothing and weapons were identified as
human blood. Out of the stains that could be
identified, the blood was identified as belonging
to group ‗O‘. Fingerprint marks were seized from
the tea tumblers found by the police at the scene
of the crime and were also sent for FSL
examination. The samples of the fingerprints of
the accused persons were also sent along with it
for identification. The fingerprint expert opined
that there was similarity between a few prints
upon the tea tumblers and the fingerprints of
Accused No. 1, Makrand Singh.
14. Learned counsel for the appellant-complainant
has strongly opposed the acquittal of the accused
persons. He took the court through the evidence
on record, and urged that the recovery of the robbed
articles itself should be a sufficient ground for a
conviction, though it is further supported by other
circumstantial evidence. He further argued that the
High Court in its majority opinion erred in giving
undue importance to small shortcomings in the
investigation, because of which justice had to
suffer. He also argued that the last seen evidence
of PW12 and PW20 along with the evidence of
recovery of the stolen ornaments and cash at the
instance of the accused persons, from their
possession, is not to be ignored. He placed
reliance on the recovery of the key used to lock
the house from outside after the commission of
the crime, at the instance of the first accused, and
said that the recovery of the same is conclusive
proof of the participation of the accused persons
in the said offence. He also argued that finding
blood of the group ‗O‘ on the clothes of the
accused in light of the recoveries made could
only lead to one conclusion, i.e. the guilt of the
Law Animated World, 15 January 2019
72
(2019) 1 LAW
accused, since this was also the blood group of
the deceased persons. However, he admitted that
the fingerprint examination report could not be
relied upon, and that the hair sample test report
was inconclusive.
15. The State of Madhya Pradesh has also filed an
appeal against the acquittal by the High Court.
The learned counsel for the State, while adopting
the arguments of the counsel for the complainant
in opposing the acquittal, submitted that the
circumstantial evidence on record, which is fully
proved, would only lead to the conviction of the
accused.
16. The Supreme Court Legal Services
Committee was directed by us to engage a
counsel for the accused Respondents since none
had appeared for them. An Amicus Curiae was
appointed to assist us in relation to the arguments
for the Respondents. He supported the majority
view taken by the High Court in acquitting the
accused persons, in entirety. He argued that there
are discrepancies in the evidence relating to the
arrests made and the alleged recoveries made by
the police at the instance of the accused. Learned
amicus also stated that out of the recovery
witnesses, who are all relatives of the deceased,
only PW26 has been examined. The non-
examination of other witnesses, especially one
Bahadur Yadav (the only independent witness), a
servant of Premchand, who had allegedly assisted
the police in the identification of the recovered
ornaments by the mortgagees, was said to be
crucial for the prosecution case. He further
argued that no proper procedure was followed for
the identification of the ornaments by the
mortgagees, and the police had taken active
interest in the identification of the ornaments,
which was suspicious. Lastly, he submitted that
the last seen circumstance was not proved.
17. In a case wherein the High Court has acquitted the
accused of all charges, there is a double presumption in
favour of the accused, as the initial presumption of
innocence is further reinforced by an acquittal by the
High Court. In such a case, this Court will keep in
mind that the presumption of innocence in favour
(2019) 1 LAW Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
of the accused has been fortified by the order of
acquittal and thus if the view of the High Court is
reasonable and based on the material on record, this
Court should not interfere with the same. Interference
is to be made only when there are compelling and
substantial reasons to do so, and if the ultimate
conclusion reached by the High Court is palpably
erroneous, constituting a substantial miscarriage of
justice. Moreover, interference can be made if
there is a misconception of law or erroneous
appreciation of evidence or the High Court has
completely misdirected itself in reversing the
order of conviction by the Trial Court. (See State
of Rajasthan v. Islam and Ors., (2011) 6 SCC 343,
State of U.P. v. Awdhesh, (2008) 16 SCC 238, and
State (Delhi Admin.) v. Laxman Kumar and Ors.,
(1985) 4 SCC 476).
18. As mentioned supra, the present case of
circumstantial evidence primarily hinges on two main
aspects, which is the last seen evidence and the
recovery of stolen property. PW12 and PW20, as
discussed above, are the last seen witnesses who
saw the entry and the exit of the accused persons
from the crime scene, respectively. It has been
deposed by the witnesses that soon after the
bodies were found, they had discussed amongst
themselves about the participation of the accused
persons based on the fact that PW12 saw them
enter the house of the deceased at around 06:30
p.m. on the preceding day, and that PW20 saw
them coming out of the house and leaving the
area in a hurried manner at around 09: 00/09: 30
p.m. These two witnesses have categorically
stated that they had conveyed this piece of
valuable information to the complainant PW26
right before he filed the first information.
However, there is no whisper of such an important
fact anywhere in the first information, Ex. P5 nor the
FIR arising from it, Ex. P6. It is only stated in
these documents that there was a suspicion that
the accused might have caused the said incident
as they were seen loitering around the house of
deceased Premchand at around 9:00 p.m. of the
night of the incident. PW26 has also stated that he
learnt about the presence of the accused persons
from the verbal dialogue between him and the
73
ISC-19
said witnesses. If PW12 and PW20 had really
seen the accused as deposed, the same would
have been reflected in the FIR, and the absence of
such a crucial piece of information that PW26
learnt right before filing the first information
casts a dark shadow of suspicion over the
testimony of the last seen witnesses. Moreover,
PW12 and PW20 have deposed that they were
present at the spot when the bodies were found.
However, their statements were not taken by the
police on the same day, rather they were taken
subsequently on the next day. Considering the
fact that the details of the last seen circumstance
as deposed by PW12 and PW20 are not found in
the first information (though PW26, the
informant was informed about the same by PW12
and PW20 before filing the First Information
Report), we are of the opinion that PW12 and
PW20 did not see the accused entering or exiting
the house of the deceased, as is sought to be made
out by the prosecution. Moreover, there was
deliberate delay in recording the statements of
these important witnesses with regard to the last
seen circumstance. Hence, the statements of PW12
and PW20 were clearly an afterthought.
19. The High Court had observed that PW20 is a
chance witness, and we find that it has been held
rightly so. Moreover, there are discrepancies and
contradictions in the statement of PW20,
inasmuch as it is only in his testimony that he
asserts for the first time that he saw the accused
coming out of the house of the deceased, as
opposed to walking hurriedly away from the area,
towards the Dhanwanti Bai Dharamshala. Also,
he admitted that he could not remember how
many people came out holding bags, and how
many came out empty-handed, along with the fact
that he did not usually take the route in front of
the house/shop of the deceased to reach his house
from his shop, which shows that he is a chance
witness. Keeping in mind that this witness was
related to the deceased, and appears to be a
chance witness with material discrepancies in his
account, we are inclined to discard his evidence
as to the last seen circumstance.
Law Animated World, 15 January 2019
ISC-20 Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
20. The first information given by the
complainant PW26 clearly mentions the name of
the accused as well as their addresses. It is also
stated by the witnesses that they are acquainted
with the accused persons as they are electricians
who frequented the house of the deceased for
repair works. Based on the same and corroborated
by the statement of PW26, the police could have
easily arrested the accused. It was stated by the
Investigating Officer K.D. Sonakiya, PW35, that
the police went in search of the accused in order
to arrest them at different locations that night
itself. However, the material on record shows that
the arrests were made only the next morning
between 11:00 a.m. and 11:30 a.m., that too at the
houses of the accused persons, which also,
incidentally, shows that the accused persons were
not absconding, which is unnatural conduct on
the part of an offender who knows that he has
been observed entering the house of the deceased
on the day of the offence. Be that as it may, the
delay in the arrest, despite clear knowledge of the
whereabouts of the accused persons, casts a serious
shadow of doubt over the case of the prosecution.
21. As regards the recovery of incriminating
material at the instance of the accused, the
Investigating Officer K.D. Sonakiya, PW35, has
categorically deposed that all the confessions by
the accused persons were made after
interrogation, but the mode of this interrogation
does not appear to be of normal character,
inasmuch as he himself has deposed that the
accused persons were further grilled and
interrogated multiple times before extracting the
confessions which lead to the recovery of the
ornaments, cash, weapons and key. We find from
the totality of facts and circumstances that the
confessions that led to the recovery of the incriminating
material were not voluntary, but caused by inducement,
pressure or coercion. Once a confessional statement of
the accused on facts is found to be involuntary, it is hit
by Article 20(3) of the Constitution, rendering such a
confession inadmissible. There is an embargo on
accepting self-incriminatory evidence, but if it
leads to the recovery of material objects in
relation to a crime, it is most often taken to hold
evidentiary value as per the circumstances of
Law Animated World, 15 January 2019
74
(2019) 1 LAW
each case. However, if such a statement is made
under undue pressure and compulsion from the
investigating officer, as in the present matter, the
evidentiary value of such a statement leading to
the recovery is nullified. It is noteworthy to
reproduce the observations of this Court regarding
the relationship between Sec. 27 of the Evidence
Act and Article 20(3) of the Constitution in Selvi
v. State of Karnataka, (2010) 7 SCC 263:
―102. As mentioned earlier ―the right against
self-incrimination‖ is now viewed as an essential
safeguard in criminal procedure. Its underlying
rationale broadly corresponds with two
objectives – firstly, that of ensuring reliability of
the statements made by an accused, and
secondly, ensuring that such statements are made
voluntarily. It is quite possible that a person
suspected or accused of a crime may have been
compelled to testify through methods involving
coercion, threats or inducements during the
investigative stage. When a person is compelled
to testify on his/her own behalf, there is a higher
likelihood of such testimony being false. False
testimony is undesirable since it impedes the
integrity of the trial and the subsequent verdict.
Therefore, the purpose of the ―rule against
involuntary confessions‖ is to ensure that the
testimony considered during trial is reliable. The
premise is that involuntary statements are more
likely to mislead the Judge and the prosecutor,
thereby resulting in a miscarriage of justice.
Even during the investigative stage, false
statements are likely to cause delays and
obstructions in the investigation efforts.
103. The concerns about the ―voluntariness‖ of
statements allow a more comprehensive account
of this right. If involuntary statements were
readily given weightage during trial, the
investigators would have a strong incentive to
compel such statements – often through methods
involving coercion, threats, inducement or
deception. Even if such involuntary statements are
proved to be true, the law should not incentivise the use
of interrogation tactics that violate the dignity and
bodily integrity of the person being examined. In this
sense, “the right against self-incrimination” is a vital
safeguard against torture and other “third degree
methods” that could be used to elicit information. It
serves as a check on police behaviour during the course
of investigation. The exclusion of compelled
(2019) 1 LAW Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
testimony is important otherwise the
investigators will be more inclined to extract
information through such compulsion as a matter
of course. The frequent reliance on such ―short
cuts‖ will compromise the diligence required for
conducting meaningful investigations. During the
trial stage, the onus is on the prosecution to prove the
charges levelled against the defendant and the “right
against self-incrimination” is a vital protection to ensure
that the prosecution discharges the said onus.
… 133. We have already referred to the language
of Section 161 CrPC which protects the accused
as well as suspects and witnesses who are
examined during the course of investigation in a
criminal case. It would also be useful to refer to
Sections 162, 163 and 164 CrPC which lay down
procedural safeguards in respect of statements
made by persons during the course of
investigation. However, Section 27 of the
Evidence Act incorporates the ―theory of
confirmation by subsequent facts‖ i.e. statements
made in custody are admissible to the extent that
they can be proved by the subsequent discovery
of facts. It is quite possible that the content of the
custodial statements could directly lead to the
subsequent discovery of relevant facts rather than their
discovery through independent means. Hence such
statements could also be described as those which
“furnish a link in the chain of evidence” needed for a
successful prosecution. This provision reads as
follows:
―27. How much of information received from
accused may be proved. – Provided that, when
any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody
of a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to the
fact thereby discovered, may be proved.‖
134. This provision permits the derivative use of
custodial statements in the ordinary course of
events. In Indian law, there is no automatic
presumption that the custodial statements have been
extracted through compulsion. In short, there is no
requirement of additional diligence akin to the
administration of Miranda [16 L Ed 2d 694 : 384
US 436 (1965)] warnings. However, in
circumstances where it is shown that a person was
indeed compelled to make statements while in
custody, relying on such testimony as well as its
derivative use will offend Article 20(3).
75
ISC-21
135. The relationship between Section 27 of the
Evidence Act and Article 20(3) of the
Constitution was clarified in Kathi Kalu Oghad
[AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 :
(1962) 3 SCR 10]. It was observed in the
majority opinion by Jagannadhadas, J., at SCR
pp. 33-34: (AIR pp. 1815-16, para 13)
―13. … The information given by an accused
person to a police officer leading to the
discovery of a fact which may or may not
prove incriminatory has been made
admissible in evidence by that section. If it is
not incriminatory of the person giving the
information, the question does not arise. It
can arise only when it is of an incriminatory
character so far as the giver of the
information is concerned. If the self-
incriminatory information has been given by
an accused person without any threat, that
will be admissible in evidence and that will
not be hit by the provisions of clause (3) of
Article 20 of the Constitution for the reason
that there has been nocompulsion. It must,
therefore, be held that the provisions of Section
27 of the Evidence Act are not within the
prohibition aforesaid, unless compulsion [has]
been used in obtaining the information.‖
(emphasis in italics supplied by Court)
22. We are of the opinion that the recovery of the
stolen ornaments, etc. in the instant matter was made on
the basis of involuntary statements, which effectively
negates the incriminating circumstance based on such
recovery, and severely undermines the prosecution case.
23. Furthermore, the prosecution has examined
many witnesses who were alleged to be the
pledgors of the said ornaments, who identified
their ornaments in an identification conducted by
the Naib Tehsildar. This was to prove that the
recovered ornaments were in fact the ornaments
which were robbed from the house of the
deceased Premchand and later recovered from the
accused persons. We find substance in the
argument of the learned Amicus Curiae that this
identification was not done in accordance with
due procedure. It is evident from the testimony of
several of the examined pledgors, such as PWs
15, 16 and 28, that the identification procedure was
conducted without mixing the recovered jewellery with
Law Animated World, 15 January 2019
ISC-22 Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
similar or identical ornaments.
Additionally, there is
nothing on record to show the identity of the
pledgors and to prove that the identified
ornaments were pledged by them to the deceased
Premchand, except for the account books
maintained by the deceased Premchand for his
business, but these cannot be relied upon. This is
because these account books were seized by the
police from the possession of Shailendra Kumar
Jain, PW11, who is the son-in-law of the
deceased. Incidentally, he also runs a similar
money-lending business as a pawn broker in
another town. No valid reason is accredited to the
recovery of deceased Premchand‘s alleged
account books from the possession of his son-in-
law. Moreover, these account books were
returned to him without any prayer for the same
and without following any procedure. Later, it
was found that there were additional entries made
in the account book after the date of the incident.
Moreover, none of the witnesses have spoken
about the particular entry relating to them in the
account books. No signature of any witness is
identified and marked in the account books. In
other words, none of the witnesses have deposed
about any relevant entry found in the account
books with reference to their respective gold/
silver articles. All these issues discussed above,
coupled with the fact that the investigation officer
has put forth an artificial and got-up story in the
matter of identification of the ornaments, creates
grave suspicion with regard to the recovery of the
ornaments, as well as their identification by the
different pledgors. Hence, learned Amicus Curiae
may be justified in contending, as held by the High
Court, that the aspect of recovery is a got-up story, only
to suit the purposes of the prosecution.
24. The witnesses for the recoveries which were
effected at the instance of the accused are Ashish
Jain, PW26 and one Sanjeev Jain. Both of them
are close relatives of the deceased. Sanjeev Jain
has not been examined. Similarly, one Bahadur
Yadav was also not examined, who was a servant
of the deceased Premchand who had allegedly
assisted the police by giving information about
the pledgors to locate them to be brought for
Law Animated World, 15 January 2019
76
(2019) 1 LAW
identification of the recovered articles. The non-
examination of these two important witnesses in
light of the recoveries adversely affects the
prosecution case.
25. Another circumstance which has been
contended to point to the guilt of the accused is the
recovery of bloodstained weapons at the instance of
the accused. A pointed suja and a chisel were
recovered from the houses of Accused Nos. 2 and 1,
respectively, at their instance. However, the
prosecution has not established that these are the weapons
which were used for the commission of the crime. The
medical evidence indicates that the injuries that were
found on the bodies of the deceased persons could not have
been caused with the weapons seized, and the likelihood
of the seized weapons causing the present injuries
are very slim, as all the injuries, except one, were
lacerations caused by a hard and blunt object. The
bloodstained clothes of the accused persons were
also recovered from the houses of the accused at
their instance. However, the veracity of the said
recovery is doubtful in light of the fact that the said
recovery was made two days after the arrest of the
accused and the recovery of the stolen articles from
the houses of the accused, which the investigating
officer had thoroughly searched previously. From
Accused No. 3, Shyam Sunder, clothes were
recovered hanging from a hook inside his one-room
house, which had also been searched previously and
from where ornaments had also been seized before.
All these apparent infirmities create nothing but
doubts in our minds regarding the guilt of the
accused.
26. All the bloodstained items (including the
weapons, clothes of the deceased and the flooring
and tiles of the spot where the bodies were found)
were sent to the FSL for examination, however the
reports do not, in any way, help the case of the
prosecution. The blood stains were found to be of
human blood, however, only the stains on the
clothes of Accused No. 2 and Accused No. 3 were
found to be of the blood group ‗O‘. Identification of
the rest of the stains was opined to be inconclusive.
Although it is argued that the blood group of the
deceased persons is ‗O‘, there is nothing conclusive
to prove the same. Therefore, no reliance can be
placed on the recovery of the bloodstained weapons
or clothes of the accused.
(2019) 1 LAW Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
27. Another incriminating factor as argued by the
counsel for the complainant is that the fingerprints
of Accused No. 1 were found upon the tea tumblers
found at the scene of the crime. We do not agree with
the conclusion of the High Court that the fingerprint
samples of the accused (used for comparison with
the fingerprints on the tumblers) were illegally
obtained, being in contravention of the Identification of
Prisoners Act, 1920, inasmuch as they were obtained
without a magisterial order. Importantly, Section 4
refers to the power of a police officer to direct
taking of measurements, including fingerprints:
―4. Taking of measurements, etc., of non-convicted persons.
– Any person who has been arrested in connection
with an offence punishable with rigorous
imprisonment for a term of one year or upwards
shall, if so required by a police officer, allow his
measurements to be taken in the prescribed
manner.‖
Section 5 of this Act provides for the taking of such
samples upon an order of a Magistrate, if the
Magistrate is satisfied as to its expediency:
―5. Power of Magistrate to order a person to be measured
or photographed. – If a Magistrate is satisfied that,
for the purposes of any investigation or proceeding
under the Code of Criminal Procedure, 1898 (5 of
1898)† it is expedient to direct any person to allow
his measurements or photograph to be taken, he
may make an order to that effect, and in that case
the person to whom the order relates shall be
produced or shall attend at the time and place
specified in the order and shall allow his
measurements or photograph to be taken, as the
case may be, by a police officer:
Provided that no order shall be made directing any
person to be photographed except by a Magistrate
of the First Class:
Provided further, that no order shall be made under
this section unless the person has at some time been
arrested in connection with such investigation or
proceeding.‖
However, as affirmed recently by this Court in
Sonvir v. State (NCT) of Delhi, (2018) 8 SCC 24,
Section 5 is not mandatory but is directory, and
affirms the bona fides of the sample-taking and
eliminates the possibility of fabrication of evidence.
The Court also relied on various judgments on the
point, including Shankaria v. State of Rajasthan,
(1978) 3 SCC 435, a three-Judge Bench decision of
77
ISC-23
this Court to reach this conclusion. While
discussing the decision of this Court in Mohd. Aman
v. State of Rajasthan, (1997) 10 SCC 44, the Court
observed at paragraphs 60-62 as follows:
―60. This Court observed that the prosecution has
failed to establish that the seized articles were not
or could not be tampered with before it reached the
Bureau for examination. Further the following was
stated in para 8: (Mohd. Aman case [Mohd. Aman
v. State of Rajasthan, (1997) 10 SCC 44 : 1997
SCC (Cri) 777], SCC p. 49)
―8. … Apart from the above missing link and
the suspicious circumstances surrounding the
same, there is another circumstance which also
casts a serious mistrust as to genuineness of the
evidence. Even though the specimen
fingerprints of Mohd. Aman had to be taken on
a number of occasions at the behest of the
Bureau, they were never taken before or under
the order of a Magistrate in accordance with
Section 5 of the Identification of Prisoners Act.
It is true that under Section 4 thereof police is competent
to take fingerprints of the accused but to dispel any
suspicion as to its bona fides or to eliminate the
possibility of fabrication of evidence it was
eminently desirable that they were taken before
or under the order of a Magistrate.‖ (emphasis
supplied by Court)
61. The above observation although clearly mentions that
under Section 4 police officer is competent to take
fingerprints of the accused but to dispel as to its bona fide or
to eliminate the fabrication of evidence it was eminently
desirable that they were taken before or under the order of the
Magistrate.
62. The observation cannot be read to mean that
this Court held that under Section 4 police officers
are not entitled to take fingerprints until the order is
taken from the Magistrate. The observations were
made that it is desirable to take the fingerprints
before or under the order of the Magistrate to dispel
any suspicion…‖ (emphasis supplied by Court)
Even otherwise, pursuant to S. 8 of the
Identification of Prisoners Act, rules have been
framed by the Madhya Pradesh government for the
purpose of carrying into effect the provisions of the
said Act. The relevant rules for the matter on hand
are Rules 3, 4 and 5, which are reproduced herein:
―3. Taking of photographs or measurements. Allow his
photograph or measurements to be taken under
Section 3 or Section 4, shall allow them to be taken
under the directions of a police officer.
Law Animated World, 15 January 2019
ISC-24 Asheesh Jain v. Makrand Singh & Ors. [IND-SC]
4. Places at which measurements and photographs can be
taken. – 1) Measurements and photographs may be
taken –
a) in Jail, if the person whose photograph, or
measurements are to be taken, is in Jail;
(b) at a police station or at any other place at which
the police officer may direct the taking of the
measurements or photographs, if the person whose
photograph or measurements are to be taken is in
police custody.
(2) If the person whose photograph or
measurements are to be taken has been released
from jail before his measurements or photograph
have been taken or is not in police custody, he shall
on receipt of an order in writing from an officer in
charge of a Police Station attend at such place as
may be specified in such order, on the date and at
the time stated therein, for the purpose of having
his measurements or photograph taken.
5. Measurements how to be taken. –
1) Measurements of the whole or of any part of the
body may be taken.
(2) The measurements of a woman shall be taken
by another woman with strict regard to decency.‖
A bare reading of these rules makes it amply clear
that a police officer is permitted to take the
photographs and measurements of the accused.
Fingerprints can be taken under the directions of the
police officer. As held by this Court in Sonvir
(supra), although Section 4 mentions that the police
officer is competent to take measurements of the accused,
but to dispel doubts as to its bona fides and to rule out the
fabrication of evidence, it is eminently desirable that they
were taken before or under the order of a Magistrate.
However, the aforesaid observations cannot be held
to mean that this Court observed that under Section
4, police officers are not entitled to take fingerprints
until the order is taken from a Magistrate. If certain
suspicious circumstances do arise from a particular
case relating to lifting of fingerprints, in order to
dispel or ward off such suspicious circumstances, it
would be in the interest of justice to get orders from
the Magistrate. Thus there cannot be any hard and fast
rule that in every case, there should be a magisterial order
for lifting the fingerprints of the accused. Thus, it cannot
be held that the fingerprint evidence was illegally obtained
merely due to the absence of a magisterial order
authorizing the same. At the same time, we find that
in the current facts and circumstances, the absence
of a magisterial order casts doubts on the credibility
Law Animated World, 15 January 2019
78
(2019) 1 LAW
of the fingerprint evidence, especially with respect
to the packing and sealing of the tumblers on which
the fingerprints were allegedly found, given that the
attesting witnesses were not independent witnesses,
being the family members of the deceased. Thus, we
cannot rule out the possibility of tampering and post-facto
addition of fingerprints, and concur with the High Court in
discarding the fingerprint evidence.
28. It is noteworthy to mention that the DIG of
Police had visited the scene of the crime shortly
after finding the bodies, which is evident from the
deposition of witnesses such as PW1. The DIG,
upon seeing three tea tumblers and some electrical
equipment at the scene of the crime, inferred that
the crime may have been committed by three
persons who were electricians. This inference drawn
by a high-ranking officer in the police is likely to have
impeded the course of investigation and created prejudice
against the accused persons. The whole investigation and
the prosecution case seem to be concocted around this
inference made by the DIG, and such a circumstance does
not help the case of the prosecution.
29. In light of the aforementioned discussion and
reappraisal of evidence by this Court, we do not find
any glaring infirmity in the acquittal granted by the High
Court. On the other hand, we find it well-reasoned, and
therefore accept the view of the High Court. The
appellants have failed to establish that the High
Court has erred in its conclusion. Unless any blatant
illegality or substantial error in the order of
acquittal is proved by the appellants, and as long as
the conclusion of acquittal is a possible view based
on the circumstances and material on record, this
Court is not bound to interfere with the same. As a
reasonable suspicion or doubt persists in our minds
regarding the guilt of the accused based on the case of the
prosecution, the scales of criminal justice tilt in favour of
acquittal of the accused. In such a scenario, the
acquittal of the accused persons is confirmed.
30. At this juncture, we would like to extend our
appreciation to the learned counsel and especially
for the able assistance of Mr. V.N. Sinha, Senior
Counsel appointed as the Amicus Curiae.
31. Therefore, Criminal Appeal Nos. 1980-1981 of
2008 are dismissed, and the judgment and order of
acquittal of the High Court is maintained.
*****
 MUTUAL AID: A FACTOR OF EVOLUTION
Chapter 2:
MUTUAL AID AMONG ANIMALS - II
Migrations of birds.– Breeding associations. – Autumn
societies. – Mammals: small number of unsociable
species. – Hunting associations of wolves, lions, etc. –
Societies of rodents; of ruminants; of monkeys. – Mutual
Aid in the struggle for life. – Darwin's arguments to
prove the struggle for life within the species. – Natural
checks to over-multiplication. – Supposed extermination
of intermediate links. – Elimination of competition in
Nature.
As soon as spring comes back to the temperate
zone, myriads and myriads of birds which are
scattered over the warmer regions of the South come
together in numberless bands, and, full of vigour and
joy, hasten northwards to rear their offspring. Each of
our hedges, each grove, each ocean cliff, and
each of the lakes and ponds with which Northern
America, Northern Europe, and Northern Asia are
dotted tell us at that time of the year the tale of what
mutual aid means for the birds; what force, energy, and
protection it confers to every living being, however feeble and
defenceless it otherwise might be. Take, for instance,
one of the numberless lakes of the Russian and
Siberian Steppes. Its shores are peopled with
myriads of aquatic birds, belonging to at least a
score of different species, all living in perfect
peace-all protecting one another.
"For several hundred yards from the shore the air
is filled with gulls and terns, as with snow-flakes
on a winter day. Thousands of plovers and sand-
coursers run over the beach, searching their food,
whistling, and simply enjoying life. Further on,
on almost each wave, a duck is rocking, while
higher up you notice the flocks of the Casarki
ducks. Exuberant life swarms everywhere."1
And here are the robbers – the strongest, the most
cunning ones, those "ideally organized for robbery."
And you hear their hungry, angry, dismal cries as
for hours in succession they watch the
opportunity of snatching from this mass of living

Continued from Law Animated World, 31 December 2018
issue; Emphases in bold ours - IMS.
1
Syevettsoff's Periodical Phenomena, p. 251.
79
- Pëtr Kropotkin
beings one single unprotected individual. But as
soon as they approach, their presence is signalled
by dozens of voluntary sentries, and hundreds of
gulls and terns set to chase the robber. Maddened
by hunger, the robber soon abandons his usual
precautions: he suddenly dashes into the living
mass; but, attacked from all sides, he again is
compelled to retreat. From sheer despair he falls
upon the wild ducks; but the intelligent, social birds
rapidly gather in a flock and fly away if the robber is an
erne; they plunge into the lake if it is a falcon; or they
raise a cloud of water-dust and bewilder the assailant if
2[2]
it is a kite. And while life continues to swarm
on the lake, the robber flies away with cries of
anger, and looks out for carrion, or for a young
bird or a field-mouse not yet used to obey in time
the warnings of its comrades. In the face of an
exuberant life, the ideally-armed robber must be
satisfied with the off-fall of that life.
Further north, in the Arctic archipelagoes,
"you may sail along the coast for many miles and
see all the ledges, all the cliffs and corners of the
mountain-sides, up to a height of from two to
five hundred feet, literally covered with sea-
birds, whose white breasts show against the dark
rocks as if the rocks were closely sprinkled with
chalk specks. The air, near and far, is, so to say,
full with fowls."3
Each of such "bird-mountains" is a living
illustration of mutual aid, as well as of the infinite
variety of characters, individual and specific,
resulting from social life. The oyster-catcher is
renowned for its readiness to attack the birds of
prey. The barge is known for its watchfulness,
and it easily becomes the leader of more placid
birds. The turnstone, when surrounded by comrades
belonging to more energetic species, is a rather timorous
bird; but it undertakes to keep watch for the security of
the commonwealth when surrounded by smaller birds.
2
Seyfferlitz, quoted by Brehm, iv. 760.
3
The Arctic Voyages of A.E. Nordenskjöld, London, 1879,
p. 135. See also the powerful description of the St. Kilda
islands by Mr. Dixon (quoted by Seebohm), and nearly
all books of Arctic travel.
Law Animated World, 15 January 2019
80 Mutual Aid : A Factor of Evolution (Peter Kropotkin)
Here you have the dominative swans; there, the
extremely sociable kittiwake-gulls, among whom
quarrels are rare and short; the prepossessing
polar guillemots, which continually caress each
other; the egoist she-goose, who has repudiated the
orphans of a killed comrade; and, by her side, another
female who adopts any one's orphans, and now
paddles surrounded by fifty or sixty youngsters,
whom she conducts and cares for as if they all
were her own breed. Side by side with the
penguins, which steal one another's eggs, you
have the dotterels, whose family relations are so
"charming and touching" that even passionate hunters
recoil from shooting a female surrounded by her young
ones; or the eider-ducks, among which (like the
velvet-ducks, or the coroyas of the Savannahs)
several females hatch together in the same, nest.
or the lums, which sit in turn upon a common
covey. Nature is variety itself, offering all possible
varieties of characters, from the basest to the highest :
and that is why she cannot be depicted by any
sweeping assertion. Still less can she be judged from the
moralist's point of view, because the views of the
moralist are themselves a result – mostly
unconscious – of the observation of Nature.4
Coming together at nesting-time is so common with
most birds that more examples are scarcely
needed. Our trees are crowned with groups of
crows' nests; our hedges are full of nests of
smaller birds; our farmhouses give shelter to
colonies of swallows; our old towers are the
refuge of hundreds of nocturnal birds; and pages
might be filled with the most charming
descriptions of the peace and harmony which
prevail in almost all these nesting associations.
As to the protection derived by the weakest birds
from their unions, it is evident. That excellent
observer, Dr. Couís, saw, for instance, the little
cliff-swallows nesting in the immediate
neighbourhood of the prairie falcon (Falco
polyargus). The falcon had its nest on the top of
one of the minarets of clay which are so common
in the cañons of Colorado, while a colony of
swallows nested just beneath. The little peaceful
4
See Appendix III.
Law Animated World, 15 January 2019
80
(2019) 1 LAW
birds had no fear of their rapacious neighbour; they
never let it approach to their colony. They immediately
surrounded it and chased it, so that it had to make off at
5
once.
Life in societies does not cease when the nesting
period is over; it begins then in a new form. The young
broods gather in societies of youngsters,
generally including several species. Social life is
practised at that time chiefly for its own sake – partly
for security, but chiefly for the pleasures derived
from it. So we see in our forests the societies
formed by the young nuthatchers (Sitta cæsia),
together with tit-mouses, chaffinches, wrens, tree-
creepers, or some wood-peckers.6 In Spain the
swallow is met with in company with kestrels,
fly-catchers, and even pigeons. In the Far West of
America the young horned larks live in large
societies, together with another lark (Sprague's),
the skylark, the Savannah sparrow, and several
species of buntings and longspurs.7 In fact, it
would be much easier to describe the species which live
isolated than to simply name those species which join
the autumnal societies of young birds – not for
hunting or nesting purposes, but simply to enjoy life
in society and to spend their time in plays and sports,
after having given a few hours every day to find
their daily food.
And, finally, we have that immense display of
mutual aid among birds-their migrations – which
5
Elliot Couís, in Bulletin U.S. Geol. Survey of Territories,
iv. No. 7, pp. 556, 579, etc. Among the gulls (Larus
argentatus), Polyakoff saw on a marsh in Northern
Russia, that the nesting grounds of a very great number of
these birds were always patrolled by one male, which
warned the colony of the approach of danger. All birds
rose in such case and attacked the enemy with great
vigour. The females, which had five or six nests together
On each knoll of the marsh, kept a certain order in
leaving their nests in search of food. The fledglings,
which otherwise are extremely unprotected and easily
become the prey of the rapacious birds, were never left
alone ("Family Habits among the Aquatic Birds," in
Proceedings of the Zool. Section of St. Petersburg Soc. of
Nat., Dec. 17, 1874).
6
Brehm Father, quoted by A. Brehm, iv. 34 seq. See also
White's Natural History of Selborne, Letter XI.
7
Dr. Couës, Birds of Dakota and Montana, in Bulletin U.S.
Survey of Territories, iv. No. 7.
(2019) 1 LAW Mutual Aid : A Factor of Evolution (Peter Kropotkin)
I dare not even enter upon in this place. Sufficient
to say that birds which have lived for months in small
bands scattered over a wide territory gather in
thousands; they come together at a given place, for
several days in succession, before they start, and
they evidently discuss the particulars of the
journey. Some species will indulge every
afternoon in flights preparatory to the long
passage. All wait for their tardy congeners, and
finally they start in a certain well chosen direction
– a fruit of accumulated collective experience –
the strongest flying at the head of the band, and
relieving one another in that difficult task. They
cross the seas in large bands consisting of both big and
small birds, and when they return next spring they
repair to the same spot, and, in most cases, each of
them takes possession of the very same nest which it had
8 gazelles, fallow deer, buffaloes, wild goats and
built or repaired the previous year.
This subject is so vast, and yet so imperfectly
studied; it offers so many striking illustrations of
mutual-aid habits, subsidiary to the main fact of
migration – each of which would, however,
require a special study – that I must refrain from
entering here into more details. I can only
cursorily refer to the numerous and animated
gatherings of birds which take place, always on the
same spot, before they begin their long journeys north
or south, as also those which one sees in the north,
after the birds have arrived at their breeding-places on
the Yenisei or in the northern counties of England. For
many days in succession – sometimes one month
– they will come together every morning for one
hour, before flying in search of food – perhaps
discussing the spot where they are going to build
their nests.9 And if, during the migration, their
columns are overtaken by a storm, birds of the most
different species will be brought together by
8 of elephants, rhinoceroses, and numberless societies of
It has often been intimated that larger birds may occasionally
transport some of the smaller birds when they cross together the
Mediterranean, but the fact still remains doubtful. On the other
side, it is certain that some smaller birds join the bigger
ones for migration. The fact has been noticed several
times, and it was recently confirmed by L. Buxbaum at
Raunheim. He saw several parties of cranes which had larks
flying in the midst and on both sides of their migratory columns
(Der zoologische Garten, 1886, p. 133).
9
H. Seebohm and Ch. Dixon both mention this habit.
81
81
common misfortune. The birds which are not
exactly migratory, but slowly move northwards
and southwards with the seasons, also perform
these peregrinations in flocks. So far from
migrating isolately, in order to secure for each
separate individual the advantages of better food
or shelter which are to be found in another district
– they always wait for each other, and gather in flocks,
before they move north or south, in accordance with the
10
season.
Going now over to mammals, the first thing
which strikes us is the overwhelming numerical
predominance of social species over those few
carnivores which do not associate. The plateaus, the
Alpine tracts, and the Steppes of the Old and New
World are stocked with herds of deer, antelopes,
sheep, all of which are sociable animals. When the
Europeans came to settle in America, they found it so
densely peopled with buffaloes, that pioneers had to
stop their advance when a column of migrating
buffaloes came to cross the route they followed ; the
march past of the dense column lasting sometimes for
two and three days. And when the Russians took
possession of Siberia they found it so densely peopled
with deer, antelopes, squirrels, and other sociable
animals, that the very conquest of Siberia was nothing
but a hunting expedition which lasted for two hundred
years; while the grass plains of Eastern Africa are still
covered with herds composed of zebra, the hartebeest,
and other antelopes.
Not long ago the small streams of Northern
America and Northern Siberia were peopled with
colonies of beavers, and up to the seventeenth
century like colonies swarmed in Northern Russia.
The flat lands of the four great continents are still covered
with countless colonies of mice, ground-squirrels, marmots,
and other rodents. In the lower latitudes of Asia and
Africa the forests are still the abode of numerous families
monkeys. In the far north the reindeer aggregate in
10
The fact is well known to every field-naturalist, and with
reference to England several examples may be found in
Charles Dixon's Among the Birds in Northern Shires.
The chaffinches arrive during winter in vast flocks; and
about the same time, i.e. in November, come flocks of
bramblings; redwings also frequent the same places "in
similar large companies," and so on (pp. 165, 166).
Law Animated World, 15 January 2019
82 Mutual Aid : A Factor of Evolution (Peter Kropotkin)
numberless herds; while still further north we find
the herds of the musk-oxen and numberless bands
of polar foxes. The coasts of the ocean are
enlivened by flocks of seals and morses; its waters,
by shoals of sociable cetaceans; and even in the
depths of the great plateau of Central Asia we find herds of
wild horses, wild donkeys, wild camels, and wild sheep. All
these mammals live in societies and nations sometimes
numbering hundreds of thousands of individuals, although
now, after three centuries of gunpowder civilization, we find
but the débris of the immense aggregations of old. How
trifling, in comparison with them, are the numbers of the
carnivores! And how false, therefore, is the view of
those who speak of the animal world as if nothing
were to be seen in it but lions and hyenas plunging
their bleeding teeth into the flesh of their victims!
One might as well imagine that the whole of human life is
nothing but a succession of war massacres.
Association and mutual aid are the rule with
mammals. We find social habits even among the
carnivores, and we can only name the cat tribe (lions,
tigers, leopards, etc.) as a division the members of
which decidedly prefer isolation to society, and are but
seldom met with even in small groups. And yet, even
among lions "this is a very common practice to hunt in
11
company." The two tribes of the civets (Viverridæ)
and the weasels (Mustelidæ) might also be
characterized by their isolated life, but it is a fact that
during the last century the common weasel was more
sociable than it is now; it was seen then in larger
groups in Scotland and in the Unterwalden canton
of Switzerland. As to the great tribe of the dogs, it is
eminently sociable, and association for hunting
purposes may be considered as eminently
characteristic of its numerous species. It is well
known, in fact, that wolves gather in packs for hunting ,
and Tschudi left an excellent description of how
they draw up in a half-circle, surround a cow which
is grazing on a mountain slope, and then, suddenly
appearing with a loud barking, make it roll in the
abyss.12 Audubon, in the thirties, also saw the
Labrador wolves hunting in packs, and one pack
following a man to his cabin, and killing the dogs.
During severe winters the packs of wolves grow so
numerous as to become a danger for human
settlements, as was the case in France some five-
11
S.W. Baker, Wild Beasts, etc., vol. i. p. 316.
12
Tschudi, Thierleben der Alpenwelt, p. 404.
Law Animated World, 15 January 2019
82
(2019) 1 LAW
and-forty years ago. In the Russian Steppes they
never attack the horses otherwise than in packs; and
yet they have to sustain bitter fights, during which
the horses (according to Kohl's testimony)
sometimes assume offensive warfare, and in such
cases, if the wolves do not retreat promptly, they
run the risk of being surrounded by the horses and
killed by their hoofs. The prairie-wolves (Canis
latrans) are known to associate in bands of from
twenty to thirty individuals when they chase a
buffalo occasionally separated from its herd.13
Jackals, which are most courageous and may be
considered as one of the most intelligent
representatives of the dog tribe, always hunt in packs;
thus united, they have no fear of the bigger carnivores.
14
As to the wild dogs of Asia (the Kholzuns, or
Dholes), Williamson saw their large packs attacking
all larger animals save elephants and rhinoceroses,
and overpowering bears and tigers. Hyenas always live
in societies and hunt in packs, and the hunting
organizations of the painted lycaons are highly
praised by Cumming. Nay, even foxes, which, as a rule,
live isolated in our civilized countries, have been seen
15
combining for hunting purposes. As to the polar fox, it
is – or rather was in Steller's time – one of the most
sociable animals; and when one reads Steller's description
of the war that was waged by Behring's unfortunate crew
against these intelligent small animals, one does not
know what to wonder at most: the extraordinary
intelligence of the foxes and the mutual aid they displayed
in digging out food concealed under cairns, or
stored upon a pillar (one fox would climb on its top
and throw the food to its comrades beneath), or the
cruelty of man, driven to despair by the numerous packs of
foxes. Even some bears live in societies where they are not
disturbed by man. Thus Steller saw the black bear of
Kamtchatka in numerous packs, and the polar bears
are occasionally found in small groups. Even the
unintelligent insectivores do not always disdain
association.16 (to be continued)
*****
13
Houzeau's Études, ii. 463.
14
For their hunting associations see Sir E. Tennant's
Natural History of Ceylon, quoted in Romanes's Animal
Intelligence, p. 432.
15
See Emil Hüter's letter in L. Büchner's Liebe.
16
See Appendix IV.
Book Review:
ALTERNATIVE FUTURES : INDIA UNSHACKLED
Visioning a sustainable, equitable and
peaceful future India: Potpourri of
dreams, daydreams, wish-lists and visions
Book review of: Alternative Futures: India
Unshackled Edited by Ashish Kothari and K. J. Joy,
2017. Authors Upfront, New Delhi, pp 683, ISBN:
978-81-933924-7-8. Available for free download at
https://www.authorsupfront.com/futures-download.htm
Alternatives is a sequel to Churning the Earth:
The making of global India (Shrivastava, A. and
Kothari, A., 2012, Viking) in which 51 writers in 35
essays attempt to picture an India sometime in the
latter half of this century, that no longer is
afflicted by environmental and inequality issues
described in Churning.
All romantic journeys begin with dreams,
daydreams and wish-lists before the haze lifts slowly
and the destination and its path become
increasingly visible. Alternatives begins another
romantic journey to the making of a sustainable,
equitable and peaceful future India. It presents a
potpourri of dreams, daydreams and wish-lists – some
with great promise, others just laundry lists, and a
few well thought out visions. Is there better way
to do this journey? I don’t know of one. Is there a
better way of converting the dreams, daydreams
and wish-lists into visions? Yes, persistent public
dialogue, even with one’s strongest critics.
Authors and readers of Alternatives will and
must disagree. That is healthy as it can trigger a
dialogue that questions accepted political gospels.
That is Alternatives’ intention. That was Churning’s
too, but it failed.
A good dialogue, if it happens, will be
Alternatives’ most important contribution, for it
will help convert some of the book’s dreams,
 equation in India is marked by a high degree of
Courtesy: Frontier, 08-01-2019 & Sagar Dhara: Male,
upper caste & class, college educated, member of the
most ferocious predatory species that ever stalked the
earth – humans, and belongs to a profession –
engineering – that has to take more than a fair share of
the blame for bringing society close to tipping points;
emphases in bold ours - IMS.
83
- Sagar Dhara
daydreams and wish-lists into bold, radical and
realizable visions, and some of these visions into
actionable programmes that have a sharp cutting
edge necessary to transform India into a sustainable,
equitable and peaceful society.
Two publishers did a disservice to the dialogue
on Alternatives by not publishing this review.
BOOK SUMMARY
Alternatives presents India’s desired future in five
themes – ecological, political, economic and
socio-cultural, and concluding perspectives, that
cover a wide range of issues – environment, economy,
minorities, health, sexuality, governance. To give the
reader the book’s flavour, selected essays are
summarized below.
In the Ecological Futures section, Shanker, et
al, state that biodiversity conservation practices has
created “exclusionary spaces that today constitute
India’s parks” focussed on conserving large iconic
mammals. This may not protect other species.
Banning cattle grazing in the Bharatpur National
Park caused rapid grass growth, and consequent
bird population dips. The authors recommend
abandoning ―approaches that lead to further
alienation between people and environment.‖
―The big challenge India faces today is to
provide electricity and modern energy access to
an additional 240 million people and sustainable
cooking for 840 million,‖ write Hande, et al. If
India’s carbon-intensive grid provides this
additional energy, its share of India’s carbon
emissions, already 50%, would increase
substantially. The authors recommend decentralized
renewable energy to solve India’s rural energy
problems.
In Political Futures, Das feels that ―the power
inequality.‖ Roy, et al narrate how right to
information, rural employment guarantee, and the
forest rights acts have fought corruption and increased
grassroot democracy. Fifty years hence, the authors
see an egalitarian and sustainable India that will be
forged by a “new power alliance (women, tribals, dalits,
Law Animated World, 15 January 2019
84 Alternative Futures: India Unshackled (Sagar Dhara)
Muslims and lower castes) that has the experience and
motivation to challenge existing power structures.” The
authors see the need for people’s control over
natural resources.
Dubey believes that the 1960-70s’ were the golden
era of the United Nations (UN). Subsequently, the
major powers weakened it by changing its
agenda, whittled down its core competence areas
and putting their economic policies beyond the
UN’s purview. Dubey believes that we live in an
―unstable, disorderly, fractured, unequal, and unjust
world.‖ It is therefore ―essential to reinstate the
central overarching status of the UN, and restore
the jurisdiction it originally had in the Charter, in
the hard core economic domains like money,
finance, trade, and development strategy‖ by
democratizing the UN.
In the Economic Futures section, Shrivastava
and Rangasamy find the ―the market economy has
equated development with economic growth and that
has led to a huge ecological damage and destruction of
human communities.‖ Moreover, ―globalization has
resulted in the centralization of power with few nations
and companies,‖ with ―growing concentrations of
income and wealth,‖ and an ―increasingly adverse
relationship between town and country.‖ In 2050, the
authors see a decentralized Indian society with
self reliant village clusters.
Mansata et al, write that agricultural output and
productivity grew since India’s independence, but the
countryside, just recovering from colonial-era
impoverishment, consumed most of the additional
output. To industrialize, cities too needed
additional food. From the late-1960s, the Green
Revolution gave them that, but poisoned food,
soil and water with pesticides, lowered water
tables, and caused farmer debts that triggered
suicides. The authors argue for ―food sovereignty
and security to all, dignified livelihoods of farmers, and
ecological sustainability.‖
In Socio-cultural Futures, Narrain asks ―what
is it that makes our lives meaningful?‖ For
capitalism, it is consumption that satisfies human
needs and pleasures, which he finds
unsatisfactory. For Narrain, meaningfulness is the
―notion of love for one person and the notion of
Law Animated World, 15 January 2019
84
(2019) 1 LAW
love in a wider sense, which can be characterized
as the love of justice or empathy for the suffering
other.‖ To make this point, he analyses the stories
of Swapna-Sucheta who commit suicide because
their parents snuffed their love; and Manning, a
US Army information analyst, who was tortured
and prisoned for leaking unsavoury ―official
information‖ on the Iraq-Afghanistan war that he
felt public should know. The journey from loyal
soldier to dissenter caused Manning tremendous
stress that was compounded by his making the
transition from male to female sex during this
period.
Teltumbde believes that “the dalit movement has
failed to recognize class consciousness,” and
“reservation has only benefitted better off” dalits ,
whereas the majority of them remain stuck in
abject backwardness ―as caste identities continue to
dominate the Indian public sphere.‖ He argues for
multi-parametric empowerment of dalits –
individual, economic, political and cultural,
―central to this is the abolishment of caste
(constitutionally), and communal consciousness from
the public spaces so that we can march towards a
society based on the principles of liberty, equality, and
fraternity.‖
In the CONCLUDING PERSPECTIVES section,
Kothari and Joy, also the editors of Alternatives,
write about their vision of India through an
imaginary presentation made by Meera to the Maha
Vikalpsangam held in 2100. Select edited excerpts
from Meera’s presentation are presented below:
―Inequities, injustices and ecological collapse
peaked by the 2030-50s, and Indian society
slowly climbed out of the quagmire created by
capitalism, patriarchy, casteism, human-
centrism, Since then, society moved resolutely,
but not without hiccups, towards equity, justice,
ecological wisdom, sustainability and peace.‖
Some of the changes that happen by 2100 are:
―Dissolution of divide between rural and urban
areas; Swaraj economies flourish; Most citizens
involved with mohalla sabhas; Fossil fuel based
materials phased out; Community-based
conservation spreads; Ecosystems cover a third
of the country; Recovery of most wildlife
(2019) 1 LAW Alternative Futures: India Unshackled (Sagar Dhara)
populations; Absolute poverty eliminated with
everyone having secure access to basic needs;
Communities able to meet most of their primary
needs without large-scale commodity market
systems; Agrochemicals and genetic
modification phased out; Inequities of various
kinds reduced; Recognition of multiple genders
and sexualities; Private and state ownership of
land on the way out; Workers took over
production and service facilities; Monetary
institutions replaced by socially controlled local
currencies or non-monetized means of exchange;
Manufacturing and services significantly
decentralized; Caring and sharing are centre-
stage in the economy; More time available for
leisure; Open access to knowledge; Technological
developmentincreasingly subjected to democratic
and social regulation to ensure that technologies
of destruction and domination are discouraged;
Relaxation of nation-state boundaries; State’s
role transformed from coercive force to
facilitator; Dismantling of police, discussion
regarding dismantling armed forces; Diversity of
languages, cuisines, beliefs and knowledge
systems, ways of living and loving; Trans-
boundary resources – water, forests, migratory
species – increasingly brought under a regional
governance framework.‖
DIALOGUE
I share Alternatives’ general trajectory. So, ......
I will flag the issues that I feel require dialogue.
First the book’s pros:
1. Pathbreaking: Alternatives dreams about a future
India at two levels – state of Indian society as a
whole, and state of various components of India’s
economy, social structure, environment, culture,
welfare measures, and governance. The book is
pathbreaking as few other writings have dealt with
such a wide range of issues or provided an opening
for a dialogue at two levels.
2. Links: Alternatives highlights two important link
issues. The first is between local and national/
global issues (vertical links). The second is the need
for horizontal links between people’s movements
working on varied issues.
3. Nuggets: Some of the real-life stories and
examples of present-day initiatives in Alternatives
are invaluable nuggets that give us insights into
85
85
current-day problems and how to deal with them.
For this alone, Alternatives is a must-read.
Cons:
1. Tipping points: Alternatives makes only a casual
passing reference to global warming and no
reference to the impending natural resources
exhaustion crisis.
By 2100, global average temperatures will rise
by at least 3-3.5oC above pre-industrial times, way
above the 1.5-2oC do-not-cross redline set by
climate scientists. By the time Meera makes her
presentation, fossil fuels will completely exhaust
and reserves of ~80 important non-renewable ores
will deplete dangerously. Viable alternate energies
and materials are not yet in sight. If immediate and
drastic corrective steps are not taken, these two
tipping points will play havoc with the environment
and cripple human society for centuries if not
millennia.
So, will India be a happy, egalitarian and a
peaceful society in 2100, as Alternatives’ editors
suggest? Or will it struggle to eke a bare existence,
war over scarce resources, be hit by severe water
shortages and floods, and be battered frequently by
severe cyclones and extreme weather events?
Where will India’s get its energy and raw material
from in 2100? By burying its head in the sand and
turning a blind eye to cataclysmic changes already
underway to two most important life-support
systems—climate and geology, will Alternatives be
viewed as a climate change denier, or a believer in
the cornucopian myth that natural resources are
infinite? These are a few questions that need
dialogue between Alternatives’ authors and readers.
2. Transitions: Churning saw social change
happening through a slow transition to ―sanity,‖
with no timeframe. The path in Alternatives is the
same except for the allusion to a quagmire that
occurred between 2030-50 that society had to pull
out off, and the transformation time from the
quagmire-end to a more sustainable, equitable and
peaceful society being just 50 years. No explanation
is offered for the nature of the quagmire, or the
relatively smooth and short transition.
Social transformations happen when an emerging social
order challenges an older one. The order that garners
better resources – material and ideological – wins,
Law Animated World, 15 January 2019
86 Alternative Futures: India Unshackled (Sagar Dhara)
but not without the vanquished order fighting till its
last breath. Social transformations, e.g., from
slavery and feudalism or feudalism and capitalism,
happened with enormous conflict and over
prolonged periods; their spread over geography and
time being uneven.
Class society and anthropocentrism, the
supporting ideologies for growth, unsustianability
and inequality, and their support structures, are
~5,000 years old. Can they be dismantled as easily
and completely, and throughout India, as
Alternatives suggests? Why are transformative
routes like civilizational collapse, democratic
transition, rebellion, or other zigzag and uneven
routes, that have happened historically, not
considered by Alternatives?
The picture of the social transformation painted by
Meera is a little too good to believe, and defies history and
logic.
3. Ends and means: Desirable social outcomes
sound more credible when their pathway is
outlined. Many chapter authors in Alternatives
realized this and charted the measures required to
realize their dreams. Alternatives would have been a
more convincing book had Kothari and Joy done
the same in their concluding essay.
4. Viability of pockets of sustainability and equity:
Alternatives’ editors picture a future India that is
well on its way to becoming sustainable and
equitable. But are sustainability and equity possible in
one country? Trotsky argued that socialism in one
country was not possible as capitalism would fight
back to protect its interests.
History indicates that a country or a community
attempting to become sustainable and equitable in one
region faces enormous challenge. The White Russian
army, backed by capitalism, fought the Bolsheviks
in the early 1920s. In varied ways capitalism fought
back in Cuba, Nicaragua and Chile after it was
displaced in these countries.
Sustainability in one country or a community,
surrounded by capitalism and anthropocentrism is also not
possible. Rallegaon Siddi, an experiment in village-
level cooperation, referred to in several of
Alternatives’ essays as a desirable example of local
social change, remain largely unreplicated in nearby
villages due to the enormous pull of ―economic
Law Animated World, 15 January 2019
86
(2019) 1 LAW
growth and individual gain‖ outlook that capitalism
and anthropocentrism propagate.
Had Meera had explained how India became
more sustainable and equitable by 2100, without the
backlash that Russia faced, the narrative in
Alternatives would have sounded more convincing.
5. Sustainability quantification: Thirty years ago,
the Bruntland Commission provided a qualitatively
understanding sustainability in terms of inter-
generational equity. In this period, human society
has become ever more unsustainable, indicating that
a qualitative definition is insufficient. A quantitative
sustainability index is now required to set limits for
how much of nature we can use, and measure
progress towards that goal. Without such an index,
eloquent qualitative definitions for sustainability
may be discussed till the cows come home, but will
remain sterile.
In my review of Churning, I discussed the extent
of global powering down required to become
sustainable. Had Alternatives debated on this line of
thinking, it would have made an important
contribution to the sustainability discourse.
Equity needs the same treatment. Some work has
been done on the quantification of equity, but it
requires a South Asian contextualization, and the
addition of the concept of risk equity.
6. Technology: Technologies have downsides that
often become visible much after these technologies
are introduced. What will Meera do with the >3
lakh tonnes of spent nuclear fuel kept in temporary
storage that will remain dangerously radioactive for
another 10,000 years?
To its credit, Alternatives discusses biomass and
photovoltaics as technologies of the future. A
discussion on the possible negative impacts of
emerging technologies such as artificial
intelligence, nano-technologies, gene editing, and
how Meera’s society would deal with their
downsides would have enhanced Alternatives’
argument for a sustainable and equitable society.
After all, the devil is in the detail; and the devilish
side of technology, i.e., its downsides, is more real
and dangerous, particularly for the poor and the
vulnerable, than its angelic side, i.e., its perceived
benefits.
*****
 GUNS OUTLAWED, ONLY OUTLAWS WILL HAVE GUNS
When Guns Are Outlawed
Only Outlaws Will Have Guns
Guns are banned in the UK, but the black
market is booming and criminals are loading up on
firearms. I have often wondered what is the real
agenda of gun ban advocates. More people die from
falls than from being shot. Deaths from accidents
far exceed deaths from being shot. The FBI
reports that there were 1,247,321 violent crimes
in the US in 2017. Aggravated assault and
robbery account for 91% of violent crimes. Rapes
account for 7.7%. Murders accounted for only
1.4% of violent crime.
According to the FBI, there were 17,284 murders
in 2017. Assailants using rifles killed 403 people, and
1,591 were killed by people using knives. Handguns
were used in 7,032 killings, many of which
resulted from criminals killing one another over,
for example, drug distribution. The police were
responsible for 987 shooting deaths, about one-fourth
of which were mentally disturbed people. There were
40,327 motor vehicle accident deaths in 2017 . About
4,000 people died from drowning. There were
34,673 deaths from accidential falls. There were
58,335 accidential poisoning deaths. All unintentional
deaths totalled 161,374.
It turns out that prescription drugs are the 4th
leading cause of death, which puts it up there with
cancer and hearth attacks. Harvard University
reports that properly prescribed medications
hospitalize 1.9 million Americans annually, killing
128,000 people, ....... Far more lives could be saved by
focusing on careful drug testing rather than on gun
control. What then explains the fixation and constant
propaganda about banning “assault rifles” when the
total annual murders by assailants using all kinds of
rifles is 403? What explains the fixation on
handguns that are the weapon of choice in only 41% of
murders numbering only 7,032 deaths?
What is the point of disarming the population
when private ownership of firearms prevents a large

Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;
dt. 04-01-2019; slightly edited; emphases in bold ours - IMS.
87
- Dr. Paul Craig Roberts
number of crimes.
A study by criminologists Gary
Kleck and Marc Gertz concluded that Americans
use their guns annually to prevent more than 2 million
crimes. John Lott also found that gun ownership
reduces crime.
Those who want to ban guns use deceptive and
dishonest terms such as “gun violence,” an illiterate use
of language. Guns are inanimate objects like a
hammer or a screwdriver. They are not capable of
taking action such as commiting violence. They
have to be used or misused by people intent on commiting
violence. Therefore, there can be no such thing as “gun
violence.” There can only be violence committed by people
using guns or hammers or screwdrivers, or whatever.
Moreover, gun ban advocates, who so deplore the deaths
by “gun violence” of Americans they have never met,
are short on sympathy for the millions of victims of
American gun violence in the Middle East and North
Africa. They show no concern about the mounting
conflicts orchestrated by Washington with Russia and
China, conflicts that could destroy all life on earth in
nuclear Armageddon. Clearly, gun ban advocates are
insincere about the few deaths of strangers that they
so greatly deplore and use their insincerity to
disguise an undeclared agenda. Their agenda is the
disarming of the American people, a people already
disarmed of the protections of the US Constitution by the
fake “war on terror.” The only remaining barrier to
tyrannized Americans is the large percentage of the
population that is armed and skilled in the use of
“gun violence.” Who funds the gun banners? Who is
behind the long-standing and continuous assault on the
Second Amendment of the US Constitution? ....
The First Amendment has already fallen. No white
American any longer has free speech. It has become a
firing offense. A lawsuit offense. A career-ending
offense. The Jewish lobbies’ and the liberal/
progressive/left and Democratic Party’s Identity Politics
have murdered the First Amendment. ... The American
media has been turned into a Propaganda Ministry for war
in behalf of US hegemony over the world and in behalf of
Washington’s and Israel’s control over the
explanations fed to the American population. The
New York Times, “the newspaper of record,” will
leave a shameful, sordid record if anyone is left to
read it.
*****
Law Animated World, 15 January 2019
 ISRAEL’S NOT-SO-SECRET UNDECLARED WAR ON SYRIA
A previous article asked how can Middle East
peace and stability be possible when dark forces in
the US and Israel want sovereign Syria and Iran
forcibly replaced by pro-Western puppet rule?
Russian good faith efforts for peace in Geneva,
Astana, and Sochi failed because Washington, its key
NATO partners, and Israel reject diplomatic conflict
resolution. US-led forever wars rage – in Syria and
elsewhere.
Israel has been waging intermittent war on Syria
for years without declaring it, partnering with US
regional aggression with its own aims in mind –
notably a greater Israel it seeks, wanting territory
bordering the country annexed. Interviewed by
the UK Sunday Times, outgoing IDF chief General
Gadi Eisenkot explained what’s widely known,
saying “(w)e struck thousands of targets (in Syria)
without claiming responsibility or asking for credit” –
flagrantly illegal aggression, he failed to explain.
Throughout much of the war, Israel directly
aided ISIS, al-Nusra, and other jihadists in Syria,
supplying them with weapons and munitions, treating
their wounded in a border area field hospital. The
IDF earlier admitted supplying weapons,
munitions, cash, and other material support to
terrorists operating along the Israeli/Syrian
border. Last September, an IDF statement said it
conducted hundreds of airstrikes on Syrian targets
in the last 18 months alone, some near Russia’s
Khmeimim airbase, Lebanese airspace most often
used to launch strikes. Syrian forces found large
caches of Israel and Western weapons in areas liberated
from jihadists. Last September, a Foreign Policy
magazine report said Israel covertly supports at least
a dozen jihadist groups operating in southern Syria .
“In January 2017 we began attacking the
infrastructure the Iranians were building in Syria
(sic),” Eisenkot told the Sunday Times, adding:
“The critical mass was from mid-2017. We began
attacking systematically a number of times each week.
Without making any statements. Beneath the radar .”

Courtesy: Stephen Lendman at https://stephenlendman.org/;
dt. 15-01-2019; edited excerpts; emphases in bold ours - IMS.
Law Animated World, 15 January 2019
88
- Stephen Lendman
Iran has no military infrastructure in Syria, no
combat troops in the country, military advisors
only, operating from Syrian bases and Damascus. In
2018 alone, the IDF dropped around 2,000 bombs
on Syrian targets, according to Eisenkot, what he
falsely called Iranian ones. Like other Israeli
officials, he lied claiming Iran seeks Israel’s
destruction, a phony pretext for wanting Islamic
Republic rule replaced by pro-Western fascist
tyranny. For Eisenkot and the Netanyahu regime,
Iran’s Islamic Revolutionary Guard Corps is Israel’s main
invented enemy. No real ones exist.
All wars are unjustifiably justified by Big Lies.
Eisenkot turned truth on its head, falsely claiming
“Iranian strategy” involved sending “up to 100,000
Shiite fighters (to) Syria…by the end of 2018,
adding:
“They were bringing them in from Pakistan, Iraq
and Afghanistan. They built intelligence bases on
the Golan Heights and simultaneously built wings
at all the Syrian air force bases and brought in
civilians to begin a process of indoctrination in
schools and population centers.”
No evidence of his claimed “Iranian strategy”
exists. His baseless claim omitted explaining that
throughout its history, the Islamic Republic never attacked
another country – what US-led NATO and Israel do
repeatedly. His claim about Iran commanding over 20,000
fighters in Syria is pure rubbish – Big Lies to claim
justification for Israeli cross-border aggression.
Allied with the US as an imperial partner, Israel
continues waging undeclared war on Syria, terror-
bombing targets like the Pentagon, rejecting
restoration of peace and stabilitytothecountry. Their
actions have nothing to do with what Eisenkot called
“self-defense” – everything to do with naked aggression
for regime change. Israel also aims to annex more
Syrian territory – as much as it can steal.
A Final Comment: The Sunday Times deceptively
titled its report “Smash the bases, spare the men –
Israel’s invisible war in Syria.” Like the US and its key
NATO partners, Israel considers civilians legitimate
targets – massacring them indiscriminately in Occupied
Palestine, Syria, and other wars of aggression through-
out its history.
*****
 TRUMP COLLUDING AND CHUMMY WITH PUTIN ?
Trump Colluding and Chummy with Putin?
Make no mistake. Trump disgraces the office he
holds. So do the vast majority of Republicans and
undemocratic Dems. US political profiles in courage
are rare exceptions to the rule – practically none on
both sides of the aisle today. The nation is run by
and for its ruling class exclusively, mocking what
democracy is supposed to be all about – not in
America, not earlier, for sure not now.
The nation’s dismal state continues to worsen, not
improve, over time. Americans are ill-governed and
ill-served by one-party rule with two right wings at the
federal, state and local levels – pols and bureaucrats
betraying the constituents they’re sworn to serve.
They oppose peace, equity and justice, favor forever
wars on humanity, wanting all nations subjugated
as vassal states, ordinary people exploited and
otherwise abused.
America’s major media function as a collective
mouthpiece for the imperial state, Wall Street, and
other corporate interests – journalism the way it
should be long ago abandoned. They and
powerful interests they represent are the shame of
the nation – an increasingly totalitarian plutocracy,
oligarchy and kleptocracy, not a democracy .
A separate article discussed the farcical notion
of Trump operating as a Russian spy, wittingly or
unwittingly working for the Kremlin against his
own country over private conversations with
Vladimir Putin. Virtually all heads of state do the
same thing with their counterparts in other countries,
nothing sinister, improper or illegal about it.
Yet the self-styled newspaper of record NYT
took the lead in promoting the falsified claim,
followed
by the neocon/CIA-connected Washington Post
and other establishment media – absurdly
suggesting Trump may be working for the Kremlin
against US interests. An implausible notion is top-
featured in print and electronic media reports, more
evidence of how low the nation’s dominant fourth

Courtesy: Stephen Lendman at https://stephenlendman.org/;
dt. 14-01-2019; edited excerpts; emphases in bold ours - IMS.
89
- Stephen Lendman
more proof of its worthlessness –
estate has sunk,
to be shunned, not followed.
Times disinformation was discussed in a
separate article. WaPo accused Trump of
“conceal(ing) details of his face-to-face
encounters with Putin,” adding:
He went to “extraordinary lengths to conceal
details of his conversations with Russian
President Vladimir Putin, including on at least
one occasion taking possession of the notes of
his own interpreter and instructing the linguist
not to discuss what had transpired with other
administration officials, current and former US
officials said.”
At best, the above remarks are a gross
exaggeration, at worst bald-faced lies, part of
longstanding media collusion with undemocratic
Dems and other anti-Trump dark forces to
weaken and delegitimize him – attacking him for
the wrong reasons, ignoring the most important
right ones.
Russia is Washington’s enemy No. 1 for its sovereign
independence, opposition to US imperial wars,
supporting vitally needed multi-world polarity, aiding
Syria defeat US-supported ISIS and other terrorists,
preventing the imperial state from gaining another
trophy, among other hostile reasons. Longstanding
US plans call for regime change in Russia, China, Iran,
and all other sovereign independent countries, naked
aggression the favored strategy of Republicans and
Dems, demanded by America’s military,
industrial, security, media complex.
Notably since WW II, the business of America is
war, a national addiction, today with super-weapons
able to end life on earth if used in enough numbers.
Eisenhower’s warning against military, industrial
complex dangers went unheeded. “The potential
for the disastrous rise of misplaced power exists
and will persist,” he stressed. US militarism and
belligerence today represent a far greater threat than
his warning nearly six decades ago.
Carte blanche executive and congressional
warmaking authority makes world peace and
stability unattainable.
Law Animated World, 15 January 2019
90 Trump Colluding and Chummy with Putin? (Stephen Lendman)
So does empowering war-profiteers to gorge at
the public trough, countless trillions of dollars
spent for smashing one country after another,
along with maintaining and increasing the
Pentagon’s global empire of bases – used as platforms
for warmaking.
Trump is no exception to the rule. All US
presidents are hostage to dark forces running
America, front men for their diabolical interests.
He’s a businessman. Throughout his private life, he
focused on revenues and profit-making. As
president, he’s co-opted by imperial interests.
Along with serving corporate America, US
presidents, lawmakers, and the courts prioritize
pursuing the nation’s imperial agenda, Trump
like all his predecessors. No evidence suggests he’s
secretly colluding with Russia or any other foreign
power against US imperial interests. So-called
bombshell NYT, WaPo, and other media reports
laid an egg.
So did undemocratic Dem Senator Richard
Durbin, shamefully accusing Trump of being “so
chummy” with Putin, adding:
“This man who is a former KGB agent, has
never been a friend of the United States, invaded
our allies, threatens us around the world, and
tries his damnedest to undermine our elections.
Why is this President Trump’s best buddy?
I don’t get it.”
Durbin isone of countless congressional
Russophobic mudslingers, Big Lies, deception, and
character assassination their modus operandi,
supporting an agenda hostile to ordinary people
everywhere, backing endless wars of aggression,
serving the imperial state and monied interests.
Durbin, Schumer, and other undemocratic Dems
called for Senate hearings into Trump’s so-called
relationship with Putin, Schumer earlier saying:
“Our Republican colleagues need to join us in
demanding testimony from the president’s
national security team that was in Helsinki, and
we need to do that immediately.”
“We need hearings, as soon as possible, to assess
what President Trump might have committed to
President Putin in secret. The Senate needs to
know what happened behind closed doors.”
Law Animated World, 15 January 2019
90
(2019) 1 LAW
Trump responded to accusations against him,
saying “I’m not keeping anything under wraps.
I couldn’t care less” about releasing details of his
conversations with Putin. “I had a conversation
like every president does,” Trump said Saturday.
“You sit with the president of various countries.
I do it with all countries.” Stuff being reported
about his meetings with Putin is “so
ridiculous…making up” things that didn’t
happen. A White House statement slammed the
accusations, calling them “inaccurate…insulting,
(and) ridiculous.”
Most often Trump’s public remarks combine
bombast, hyperbole, and gross exaggeration with
turning truth on its head. Not on the above
accusations, fabricated as part of a diabolical plot
to discredit, delegitimize, and remove him from
office – either by impeachment for the wrong
reasons or at the polls in 2020.
That’s what’s been going on relentlessly since
his triumph over Hillary and inauguration. He won
an election he was supposed to lose. Hostile dark forces
and most establishment media are unforgiving, going all-
out against him. Falsely suggesting he’s a witting or
unwitting Manchurian candidate, serving Russian
interests against America is the latest fabricated
broadside against him.
The next two years look certain to be some of the
most politically tumultuous in US history – clearer
evidence than already that American exceptionalism,
moral superiority, and the indispensable state don’t
exist.
*****
(2019) 1 LAW Historical inevitability or electoral corruption? [IMS] 91
( Carried from p. 2 )

the forefront. In constitutional, social, moral and

educational fields, in every sphere, they are the
founders; they are the patrons; they are the
persons rendering unmatched service; they are
the persons spending moneys liberally and
raising consciousness among the people of the
country. The credit for establishing a people-beneficial
living and patronizing it so far in this city really belongs
to the Maharashtra brethren, and among them too
especially to Justice Pandit Keshav Rao and Dharamvir
Vamana Naik. These persons are the real creators of
the social reform movement and patronizing it all along
brought this movement up to its Sixth Congress and, as
such, deserve the gratitude of all the natives of
this province.” (to be continued)
*****
త్వరపడండి!
పెట్ు టబడి (కార్ల్ మార్లస్) సంక్షిపత పాఠం
రండవ సవివర పరచురణ త్వరలో వెలువడుత్ ంది.
కూరపు: జూలియన్ బొ రాార్లట;్
తెలుగుసేత్: ఇంగువ మలి్ కారపున శరమ
పరచురణపూరవ అడవవనుు దవవరా మీ కాపీలు రిజరపవ చేసుకొనండి!
MARXIST STUDY FORUM,
6-3-1243/116, M.S. Makta, Opposite
Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com

91 Law Animated World, 15 January 2019

 92 Law Animated World {15 January 2019}
Poe 1845 Poe 1848 Poe portrait Poe National
1845 Historical Site
ANNABEL LEE
It was many and many a year ago,
In a kingdom by the sea,
That a maiden there lived whom you may know
By the name of ANNABEL LEE;
And this maiden she lived with no other thought
Than to love and be loved by me.
I was a child and she was a child,
In this kingdom by the sea;
But we loved with a love that was more than love-
I and my Annabel Lee;
With a love that the winged seraphs of heaven
Coveted her and me.
And this was the reason that, long ago,
In this kingdom by the sea,
A wind blew out of a cloud, chilling
My beautiful Annabel Lee;
So that her highborn kinsman came
And bore her away from me,
To shut her up in a sepulchre
In this kingdom by the sea.
The angels, not half so happy in heaven,
Went envying her and me-
Yes! - that was the reason (as all men know,
In this kingdom by the sea)
That the wind came out of the cloud by night,
Chilling and killing my Annabel Lee.
But our love it was stronger by far than the love
Of those who were older than we-
Of many far wiser than we-
And neither the angels in heaven above,
Nor the demons down under the sea,
Can ever dissever my soul from the soul
Of the beautiful Annabel Lee.
For the moon never beams without bringing me dreams
Of the beautiful Annabel Lee;
And the stars never rise but I feel the bright eyes
Of the beautiful Annabel Lee;
And so, all the night-tide, I lie down by the side
Of my darling- my darling- my life and my bride,
In the sepulchre there by the sea,
In her tomb by the sounding sea.
*****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
and printed at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
Postal Reg. No. HD/1098/2017-19
A DREAM WITHIN A DREAM
- Edgar Allan Poe*
TAKE this kiss upon the brow!
And, in parting from you now,
Poe buried Thus much let me avow—
You are not wrong, who deem
That my days have been a dream;
Yet if hope has flown away
In a night, or in a day,
In a vision, or in none,
Is it therefore the less gone?
All that we see or seem
Is but a dream within a dream.
I stand amid the roar
Of a surf-tormented shore,
And I hold within my hand
Grains of the golden sand—
How few! yet how they creep
Through my fingers to the deep,
While I weep—while I weep!
O God! can I not grasp
Them with a tighter clasp?
O God! can I not save
One from the pitiless wave?
Is all that we see or seem
But a dream within a dream?
***
EPIGRAM FOR WALL STREET
I'll tell you a plan for gaining wealth,
Better than banking, trade or leases —
Take a bank note and fold it up,
And then you will find your money in creases!
This wonderful plan, without danger or loss,
Keeps your cash in your hands,
where nothing can trouble it;
And every time that you fold it across,
'Tis as plain as the light of the day that you double it!
[*EDGAR ALLAN POE (b: 19 January 1809; d: 7 October 1849), an
American writer, editor, and literary critic, best known for
his poetry and short stories, particularly his tales of mystery
and the macabre; widely regarded as a central figure of
Romanticism; the first well-known American writer to earn
a living through writing alone, resulting in a financially
difficult life and career.] {Wikipedia}
*****
92