Uniform civil code – prospects and challenges

Dr. H. Abdul Azeez[1]

Abstract

In the light of recent Supreme Court judgment holding triple talaq as unconstitutional, serious deliberations are coming up from various corners for a uniform civil code for India. The framers of the Constitution thoughtfully placed the burden on the future Governments to implement the Uniform Civil Code as they conceived the wounds of partition would heal with the passage of time. However, due to the unethical political situations, the Governments could not promote confidence of minority religious segments of the country for its implementation. This Article analyses about the causes for not implementing the Uniform Civil Code and attempts put forward some measures for the implementation of it. The most vulnerable persons affected by the non-implementation are the women in any religious groups.  Hence, the rights upholding women’s rights equalising with that of men should be made as part of Uniform Civil Code, where as rituals, culture, etc., shall be left open for religious groups follow in their own way without affecting women’s rights. Further, as first step for implementation of the Uniform Civil Code, instead of going for compulsorily implementing in one go, it can be made as an optional in initial stage, i.e., whoever intends to follow it  may choose to follow it.

Introduction

The debate on the Uniform Civil Code is getting momentum in India nowadays. The Uniform Civil Code can be considered as a common code which is applicable to all the communities irrespective of their religion, race, caste, creed, etc. The framers of our constitution included Uniform Civil Code in the directive principles of state policy under the conception that it would be implemented when the wounds created by the partition are healed by the passage on time. Article 44 of the Indian Constitution provides that State shall endeavor to secure for its citizens a Uniform Civil Code throughout the territory of India. For a convenient understanding this article is divided into following heads.

Position in Pre-independence Era

The study of Hindu legal history shows that during Hindu period[2] there was no interference of the State with Hindu law. They enjoyed complete immunity and the whole affairs were regulated by their personal laws. The state was like a welfare organization dealing with social interest and related matters. The social, political and economic life of the society was controlled by the rules and regulations of the sages who dominated the entire Hindu period.[3] During this period there were no other religious communities and so the conflict between personal laws was not material and the uniformity of law was a general rule than an exception.[4] The Muslim period which was based on the divine origin of laws and no individual could alter the law or question the authority of Caliph.[5] When Muslim law also became the law of land, Hindu law was allowed to be reserved for the Hindus and the Mohammedan rulers did not interfere with the system. The result was that the Muslim followed their Muslim law and the Hindus were allowed to stick to their own system of law. Thus, the two separate systems of personal laws on parallel lines remained to be in existence in India. It was when the British controlled India that a complete change in criminal law and a new system to deal with the various matters of civil law came into existence.

Uniform Civil Code and Modern India

The idea of Uniform Civil Code was deliberated in the Constituent Assembly but separate personal laws were retained for separate communities because the makers of constitution were convinced that some more preparation is required in the minds of people before a Uniform Civil Code is introduced. Thus, what resulted was not a secular state in the western sense of the word, rather a ‘secular’ state with religious laws for its religious groups. The problem that aroused as a consequence of the above was the retention of separate personal laws leading to contradictions in rituals and practices in personal matters. The separate personal laws of India are inherently unequal as they are founded on the rules and traditions of completely different religions, and the constitution of India recognized and the continued existence of Personal Laws. There are different personal laws like the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act, etc, governing the personal matters of Hindus; and the Shariat Act, the Dissolution of Muslim Marriage Act, the Muslim Women (Protection of Rights on Divorce) Act, etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims. The Indian Christians were governed by the Indian Christian Marriage Act, the Indian Divorce Act and the Cochin Christian Succession Act, etc. Parsi’s are also having a different set of laws of their own. It is a fact that uniformity does not exist in all these personal laws, obviously, as these personal laws bases their origin in religious backings or tenets. It is submitted that the issue not of the uniformity but of the fact that they confer unequal rights depending on the religion and the gender.

Uniform Civil Code and Indian Constitution

Among the other countries in the world, our nation is unique with its composite culture. It is one of the great laboratories of multitudes of religions. To hold the different segments of Indian society accepting, understanding and acknowledging their beliefs and religious practices is a must. For this purpose, the framers of Indian constitution have accepted secularism as one of its basic ideals. Unlike the western secularism, Indian constitution upholds the concept of Sarvamadha samabhavana in its secularism as provided in the preamble. Indian constitution allows persons of different beliefs to follow their personal laws for their personal matters.  Under the Indian Constitution, all aspects of family law are in the concurrent list.[6] But apart some legislative measures, many states have not exercised their power to an appealable extent and family laws are not even codified. At the same time, it cannot be forgotten that the influence of Anglo-Saxon jurisprudence during codification had added much confusion to the indigenous practices.

The Indian Constitution, in its Part IV, Article 44 directs the State to provide a Uniform Civil Code throughout the territory of India.  However, it is only a directive principle of state policy and, therefore, it cannot be enforced in a court of law. It is the prerogative of the state to introduce Uniform Civil Code. The Constituent Assembly debates clearly shows that there was a wide spread opposition to the incorporation of Article 44 (Article 35 in the Draft Constitution), particularly from the Muslim members of the Assembly. Naziruddin Ahamed, Mohd. Ismile Sahib, Pocker Sahib Bahadur and Hussain Sahib, etc., were against the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of the people which is a part of their religion and part of their culture. Its adoption will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that in a country so diverse it is not possible to have uniformity of civil law. However, K.M. Munshi strongly felt that if the personal laws of inheritance, succession, etc., are considered as part of the religion, the equality of women can never be achieved. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar stated that in our country there is practically a Civil Code, uniform in its content and applicable to the whole of the country like Uniform Criminal Law, Transfer of Property, Negotiable Instruments Act, etc., which are applicable to one and all. However, he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. While rejecting the arguments of certain Muslim members that the Muslim law is immutable and uniform throughout India quoting the examples like the North-West Frontier Province which was not subject to the Shariat law prior to 1935 and until then followed the Hindu Law in the matter of succession, the Marumakkatayam law applied in the North Malabar region of Kerala to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu law of Succession. Some of the learned members, however, predicted that a stage would come when the Civil Code would be Uniform and stated that power given to the State to make the Civil Code uniform is in advance of the time. Dr. Ambedkar also opined that it is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary. This clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Article 44 in the constitution hoping that it would be introduced in future at the appropriate time.

Constitutional Provisions

While, Article 15 of the constitution guarantee to every citizen that consists of  ‘no discrimination on any ground only of religion, race, caste, sex, place of birth or any of these, Article 15 (3) ensures that women and children can have special provision made by the state. But, at the same time, Article 44 promotes Uniform Civil Code whereas Article 14-19 guarantees equal rights. Constitution of India incorporates certain policies also which are to be followed by State.[7] There is provision for ensuring just and humane condition of work and maternity relief.[8]

Along with these, Article 44 also provides that ‘the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India’. In India, Uniform Criminal Code exists and so Article 44 expects from the State to secure Uniform Civil Code for all citizens of India like the Criminal law is equally applicable to all citizens irrespective of their religious beliefs as there is no uniformity in matters relating to marriage, divorce, maintenance, guardianship, etc., among Hindus, Muslims and Christians.

Personal Laws and Issues Related To Women

In India, the women have been conferred on inferior status in most of the personal matters compared to the men. It must be submitted that there is almost ‘equality’ in all religions and practices in this regard. Till the codification of Hindu Law in 1955 and 1956 the Hindu women did not enjoy equal rights along with the Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not hold any property as its absolute owner except in the case of Stridhana. She had only limited estate which was passed on to the heirs of the last full-male owner called reversionary on her death. In the matter of adoption, a Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life her husband. These examples are only illustrative in nature and not exhaustive. Even though the Hindu law has been codified, certain discriminatory provisions still exist even today. For example, a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not entitled to claim a share in the coparcenary. Similarly, she has no right to partition of a dwelling house even though she is a legal heir. Thus, it is obvious that the codification of personal law of Hindus has not succeeded completely in eradicating the gender inequality.

In the Pre-Islamic Arabia, the women enjoyed a secondary status in all respects when compared to men. The advent of Islam has contributed much for the amelioration of Muslim women and alleviation of their problems. The Holy Quran places women in a respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four wives at a time. It is important to note that the polygamy among Muslim men is only permission but not a compulsion. The Shia Muslim male can contract muta marriages for an agreed period of time. There is no ceiling on the number of muta marriages that may be contracted by a Muslim male. In the matter of divorce, the position of the Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing the wife by the husband by pronouncing triple ‘talaq’ is highly discriminatory in spite of the clear message of Holy Quran to the contrary. Recently, the Supreme Court has held that the practice of the triple ‘talaq’ is unlawful and void.[9] In the matter of succession also a Muslim woman is discriminated. The legal position is that when residuary of opposite sex but of the same degree inherit the property of the deceased, the Muslim male gets twice the share of the female. It means that while brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share. Moreover, in the matter of maintenance also the divorced Muslim wife is not required to be maintained beyond the ‘iddat’ period. At the same time, the Criminal Procedure Code which is a secular legislation imposes an obligation on a husband to maintain his wife including divorced wife until she maintains herself. The controversy regarding the question whether a Muslim husband can be directed to maintain his divorced wife even beyond the ‘iddat’ period under the provisions of Section 125 of Cr. P.C was discussed in Mohd Ahmed Khan v. Shah Bano Begum[10] and it was held that Section 125 Cr. P.C. is applicable to all including Muslims and that a Muslim husband is also liable to maintain his divorced wife beyond the ‘iddat’ period.

Subsequent to this judgment, the parliament has passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period, unless both the spouses submit to the court at the appropriate time that they would like to be governed by Cr.P.C. However, in the case of Danial Latif v. Union of India[11]  the Constitution Bench of the Supreme Court held: “where the constitutional validity of the Act of 1986 was challenged, and upheld that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well even beyond the iddat period must be made within the iddat period under section 3(1) (a) of the Act”. It was, therefore, categorically, held that the liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to the iddat period. Similarly, among the Christians and Parsi women also, there is disparity in the rights of the women as compared to the men.

Uniform Civil Code and Judiciary

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through a number of judgments indicating the necessity to have uniformity in personal matters of all the citizens. In the case of Shah Bano case[12] pertaining to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in character and is applicable to all religions. In Ms. Jordan Deigndeh v. S.S. Chopra, D. Chinappa Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a Uniform Civil Code. The totally unsatisfactory state of affairs consequent on the lack of Uniform Civil Code is exposed by the facts of the present case”. Again in Sarala Mudgal v. Union of India[13] a division bench of the Supreme Court consisting of Kuldip Singh and R.M. Sahai, JJ, stoutly advocated the introduction of a Uniform Civil Code in India. In this case, the Supreme Court held that conversion of a Hindu male to Islam only for the purpose of contracting bigamous circumvents Section 494 of Indian Penal Code. Such marriages have been declared as bigamous and void by the court. The court after referring to various precedents on the point categorically held that till Uniform Civil Code is achieved for all the Indian citizens, there can be a temptation for a Hindu husband who wishes to enter in to second marriage while the first marriage is subsisting to convert as a Muslim. Here, the Court was pointing out the injustice done to the first wife, legally wedded. It also noted the failure of successive governments till date, to implement the constitutional mandate under Article 44 of the Constitution of India. It was suggested that the personal laws of the minorities should be rationalized to develop religious and cultural amity preferably by entrusting the responsibility to the Law Commission and Minorities Commission. The Bench further directed the Government of India to file an affidavit indicating the steps taken and efforts made to have a fresh look at Article 44 in August, 1996. However, the latter direction was treated as “obiter dicta” by the court subsequently. In a recent judgment, Lily Thomas v. Union of India[14] while dealing with the validity of the second marriage contracted by a Hindu husband after his conversion to Islam, the Supreme Court clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different Benches had only expressed their views in the facts and circumstances under these cases. It appears that the Apex Court in India, which showed great judicial activism initially with regard to Uniform Civil Code, has taken a backward step with this clarification.

In 2003 also the apex court, when it declared S. 118 of the Indian Succession Act as unconstitutional on the ground that it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests [15] Justice Khare, observed as under: “it is a matter of great regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a Uniform Civil Code in the country”. At the same time, it must be noted that when a writ petition was filed calling for a direction to mandate the government to introduce a Uniform Civil Code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary.[16] Court is cautious in bringing Uniform Civil Code which is evident from its observation[17] that although a Uniform Civil Code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation. The stand or the politics of the Supreme Court is seemingly interesting. While it is recommending early legislation for ushering in a Uniform Civil Code on the one hand, it has rejected all attempts to do so through public interest litigation, on the other hand. Although the Uniform Civil Code is not codified yet, it is invisibly embracing Indian society in a gradual and an unconscious way. However, it must be appreciated that the role of judiciary in this development is noteworthy through its cautious interpretation of various personal laws though it is to be admitted that minor changes have been coming into force over a long span of time but it leaves some area as untouched.

The Uniform Civil Code in Goa: A Model

The state of Goa has shown a positive step in this direction which has enacted a set of ‘Family Laws’, which apply to all communities in Goa. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc., and embraces the concept of gender equality. There is no discrimination in this Code between Hindus or Muslims or Christians or any other community. Every birth, death and marriage is compulsorily to be registered and it provides for an equal division of property between husband and wife (irrespective of gender) and also between children. It enacts the rule of monogamy and the recent debated issue of triple talaq is not even has a place in the Code. The distribution of property at the time of divorce also is designed properly in consonance with gender equality. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of whether they are male or female, or whether they are unmarried or have got married and left the house.

Conclusion

Article 44 was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu laws of marriage, succession, etc., have been drastically changed in the first decade of the commencement of the constitution but there has been resistance from Muslim community in this respect and for avoiding any resentment on their part, political parties in power remained reluctant to enforce a Uniform Civil Code. The present situation is open to misuse and is inhuman and unjust for it permits inhuman and undignified treatment to women by providing legal cover to polygamy. Justice Kuldeep Singh, in his leading judgement in Sarala Mudgal v. Union of India[18] rightly observed that Article 44 is based on the concept that there is no necessary connection between religion and personal laws. Marriage, succession and the like matters of a secular character cannot be brought within the guarantee of religious freedom in articles 25-28. Practice of polygamy has been treated as injurious to public morals in USA and many Islamic countries have also abolished polygamy[19]. The Court, therefore, requested the Government of India to secure Uniform Civil Code for all citizens of India. No gender justice could be rendered in its comprehensive sense, unless a Uniform Civil Code containing the best provisions taken from al the religions, with the sole aim of doing gender justice. Unless the women, irrespective of their religious affiliation have been conferred equal rights on par with men in personal matters, the constitutional mandate of right to equality of status and opportunity cannot be implemented. However, adequate care should be taken to see that only the rights are made uniform and not the rituals which are inherent part of the culture and religion as otherwise it would violate the basic structure of the constitution viz., secularism. It is true that Personal laws, regardless of the community, are anti-women and so it is expected that a uniform code provides equal rights to men and women. If the remedy for the subjugation of women in almost all the faiths are available in the Personal laws itself, the proper interpretation of the Personal laws in tune with its source rather than adhering to the varied cultural patterns is also an alternate solution if the implementation of Uniform Civil Code is difficult and leads to social disintegration. This will sound good especially because it is not violating the freedom to adopt and practice any religion in the Constitution also, but at the same time will eradicate unhealthy practices.

Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, Uniform Civil Code in India stands as a distant dream for a long time to come. Since the implementation of Uniform Civil Code will certainly bring radical changes in existing personal laws, the move for reform would be better if there is sufficient pressure from within the various communities in India. Care must be taken to the fact that due to historical and other reasons, the demand for a Uniform Civil Code has now acquired communal and political overtones which may lead to serious repercussions in India. Another view is that rather going for implementing a compulsory UCC, it can be made as an optional as an initial step. It is suggested here that a model Uniform Civil Code ought to focus on rights, leaving the rituals within the bounds of constitutional propriety. If it is made optional, it will promote free choice and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities. Putting together the best elements from various existing personal codes will be better and it will be better to get it framed by independently through bodies which consist of expert and eminent personalities from among various religious groups.

[1] Associate Professor (Subject to placement), Government Law College, Kozhikode

[2]  1900 BCE to 650

[3] U.C Sarkar, Hindu Law: Its character and Evolution’ (1964) 6 Journal of Indian Law Institute at 214.

[4] Dr. Parminder Kaur, Personal Laws of India vis-a-vis Uniform Civil Code: A Retrospective And Prospective Discussion, Law Mantra Think Beyond Others, Vol. 2, Issue 5 (2015).

[5]  M. Rama Jois, Legal and Constitutional History of India, (Muimbai: N.M Tripathi Pvt. Ltd. Vol. II 1990) at 4.

[6]  INDIAN CONST. Entry 5.

[7] INDIAN CONST. Article 39 (a) (d) and (e) which mandates the State to ensure that men and women citizens shall enjoy equal right to an adequate means of livelihood. There shall be equal pay for equal work for both men and women and that the health and strength of worker’s men and women shall not be abused.

[8] INDIAN CONST. Article 42.

[9] Shayara Bano v. Union of India, Judgment of the Supreme Court dated 22-08-2017

[10] AIR 1985 S.C. 945

[11](2001) 7 SCC 740.

[12] Supra n.9.

[13] AIR, 1995 1531.

[14]AIR 2000 SC 1650.

[15] John Vallamatton v. Union of India, AIR 2003 SC 2902.

[16] Maharishi Avadhesh v. Union of India, 1994 SCC Suppl (1) 713.

[17] Pannalal Bansilal v. State of AP, (AIR 1996 SC 1023).

[18](1995) 3SCC 635.

[19] Turkey, Pakistan, Bangladesh.

The Law in Action – Judicial Activism in Achieving Gender Justice

Author: Mishika Bajpai, Advocate, Supreme Court of India and High Court of Delhi

Abstract

All women have a Right to Equality, Dignity and Respect. This right to equality is a human right and has been adopted and absorbed by various democratic constitutions across the world. However, when this right is denied to women it results in discrimination against them, which in turn necessitates women empowerment. Gender inequality intersects with insufficient education, inadequate health care, and limited income to the discriminated ones. Such deprivations only thwart their abilities to protect themselves or make empowered choices for themselves and result in social and unequal economic status of women. When the efforts of the legislature in bringing about gender equality among men and women were proved futile, it was the judiciary which struck a balance in the manner the society was dealing with any issue related to gender.

This paper focuses on how the Indian and American judiciary have brought about significant changes towards women empowerment by their exhaustive decision making power.The heart of the paper is on a comparison of the approaches taken by Supreme Courts of both the jurisdictions. The Courts have, with due regard to the power of the legislature, recognised that emancipation of women begins with the decisional making progress, followed by economic development, and consequent improvement in a women’s ability to access the constituents of development towards better health amenities and education.

The author has put forth a careful compilation of judgments delivered over all these years to study the judiciary’s meticulous approach towards women empowerment by sensitizing the issue of equality amongst the two sexes. The landmark judgments delivered by the judiciary has seen a momentous change in the concept of gender equality. These cases shall evidence the fact that the Judiciary has treated women justice seekers with utmost respect and humility while keeping in mind the quandaries of gender discrimination.

Introduction

On January 21, 1648, when a woman stood up in the New World to request the right to vote for claiming her own land, and suing for debts, the Maryland Assembly denied her this request[1]. Margaret Brent became the first woman recorded to have demanded the right to vote. Men and women were allowed to plead their own cases before the courts, however women could only do so if they were unmarried, and Brent’s conscious decision to stay unmarried followed through. She then proceeded to use the courts as necessary to collect and pay debts owed. She even accepted commissions to act for others as attorney-in-fact, most often for her brother Giles Brent and for Lord Baltimore.[2] What was denied in the Assembly was rightly practiced before the Courts.

“The best protection any woman can have … is courage.”

      – Elizabeth Cady Stanton[3]

During the1800’s, when Elizabeth Cady Stanton’s father preferred another son over her, little did anyone envision that the same daughter would become one of the earliest and leading figures in the women’s rights movements in the United States of America, inspiring women across the globe. The 19thcentury suffragist and civil rights activist advocated liberalized divorce laws, reproductive self-determination, and greater sexual freedom for women, and became an increasingly marginalized voice among women reformers of that era.[4]

For centuries, women across the world have been socially and economically deprived of the rights they always deserved. They have been recognized as the submissive, subservient, docile, passive; the class that never confronted but conformed to all the indiscriminate behavior they were put through. In his classical writing “Origin of the Family, Private Property and the State” Friedrich Engels[5] pointed out that the emancipation of women could only be possible if they took part in production on a large, social scale, and their domestic chores could not claim anything but an insignificant amount of their time. Rightly so, because, inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the confines set by stereotypes, rigid gender roles and prejudices.”[6] The judiciary in this regard has regulated the relationship between the two sexes and has bridged the gap between them to a very large extent.

At this point it necessary to note that it is not the case where women rights have not been protected by the legislature, rather there have been numerous laws enacted by legislators aiming at women development. The United Nations adopted The Universal Declaration of Human Rights in 1948 which proclaimed equal entitlements of women and men to the rights contained in it.[7]  The Constitution of India, 1950 has a set of positive and negative rights enshrined throughout the Constitution and its Preamble towards protection of women.[8] While the United States Constitution, signed on 1787, did not overtly mention women or limit of their rights or privileges to males, the usage of the word “persons” was used as being gender neutral. However, there were many rights such as the ‘right to property’ and the ‘right to vote’, amongst other rights which were not easily granted to women. Despite the above and many other legal provisions and enactments upholding the constitutional mandate to combat this pervasive social discrimination, flagrant violations of international human rights norms and national constitutions followed.

Judicial Activism in India and USA

“So, can a woman get impartial justice from a man? Or conversely, can a man get impartial justice from a woman? The answer is … ‘Yes’ … in both cases. But judges have to learn the language of equality and be impartial and try and place themselves alternately in the shoes of the two disputants and appreciate the problem and give an objective decision. This process of learning the language of equality is slow — but has to be encouraged. Otherwise there will be no equality and no justice. As one learns a new language when one goes to a new country, so must we learn the language of equality as we enter a new century, with hope and with desire to remove injustice.”

  • Late Justice Leila Seth[9]

The law that regulates the relationship between people also gives the power to the courts to understand this relationship and make amends adapting to society’s changing needs. The Courts, as the guardian of our rights, have time and again taken affirmative steps in the realm of women empowerment. The sustenance of gender justice and equality amongst women and men is the cultivated accomplishment of intrinsic human rights. Not only benefits have been extended but age-old legislations with inequalities have been read down by the Courts. While working on enabling the legislature to enact statutes moving towards gender justice, the Courts have also exercised their writ jurisdictions to check any violations of legal and fundamental rights. At every stage, pre-trial, during the trial and post trial, the Courts have exhibited extra precaution in deciding cases involving women.

Ever since the 19th century an upsurge of women empowerment litigation has been witnessed following a forceful dialog.  As women’s rights issues keep coming into national and international spotlight time and again, it is important to identify the significant milestones that led to their voice being heard and subsequently redefined their rights in our patriarchal society. A determined yet sensitized judiciary viewing each and every case in a holistic manner molded the existence and enjoyment of rights for women in USA and India with praiseworthy judicial activism[10]. This made evident that a qualitative justice dispensation had no place for predilections or an obdurate judicial formalism[11].

Right to life

Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1

The Parliament vide the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 wanting to prevent the practice of use of pre-natal diagnostic techniques for eliminating female foetus, however, could not effectively implement its functioning due to improper monitoring, the violators repeated this crime without facing any penal action.

The Supreme Court tackled the issue and gave several directions which were, inter alia, constitution of a Central Supervisory Board and the State and Union Territories Supervisory Boards for the supervision of effective implementation of the Act. The violators were to face suspension of registration and cancelation of license to practice. All the authorities had to ensure that all genetic counseling centers, genetic laboratories and genetic clinics, infertility clinics, scan centers, etc. using pre-conception and pre-natal diagnostic techniques and procedures would maintain all records and all forms, required to be maintained under the Act.

Right To Livelihood, Equal Opportunities In Employment And Benefits Thereof

Bradwell v. State of Illinois, 83 US 130 (1872)

The legal right of a woman to practice a professional career significantly changed after this 1872 judgment.

Myra Bradwell, a married woman, claimed to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect. The Court proceeded to distinguish between the two sexes and found that Civil Law itself had recognized a wide difference in the respective spheres and destinies of man and woman.

“So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.[12]

The Supreme Court of United States, thus, concluded that laws of Illinois complained of were not ‘obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States’.[13] It is noteworthy, that the Chief Justice dissented from the judgment of the court, and from all the opinions.[14]

Muller v. Oregon, 208 U.S. 412 (1908)

One of the earliest cases which resulting in igniting the fire in the hearts of women who were said to be “dependent upon man”[15]. The Supreme Court of US upheld the Oregon state law limiting women to working no more than ten hours a day and called it a legislation securing a ‘real equality of right’[16] properly placing them in a separate class. The Court found thus –

 

“Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, may, without conflicting with the provisions and this control in various forms, with diminishing intensity, has continued to the present. As minors, thought not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.”[17]

The Court rightly or wrongly understood the two sexes differently, by their structure of body, in the functions each performed, in the amount of physical strength, in the capacity for long continued labor, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This case led to a widespread public discussion of women’s equal contractual and personal rights with men.

It is interesting to note, that even though the Fifteenth Amendment[18] to the United States Constitution, adopted on February 3, 1870 gave all male citizens of the USA, regardless of “race, color, or previous condition” of servitude, the right to vote; the women only got this right 50 years later, on August 18, 1920, after strong women’s right movements led by suffragettes resulting in the 19th Amendment: “Universal Suffrage”.[19]

Adkins v. Children’s Hospital, 261 US 525 (1923)

As a positive change in favor of the women laborers, the Supreme Court in the instant case struck down a legislation which regulated the wages of women laborers. The US Court distinguished between the laws, one regulating the hours of work (See Muller v. Oregon) and another regulating wages. Citing and upholding the Muller’s principle[20], the Court viewed the changes that had taken place in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment[21] and observed that these differences had had come to a vanishing point. Muller v. Oregon was not overturned[22], however.

“In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”[23]

The Muller protective legislation was trumped by Title VII of the Civil Rights Act of 1964[24]with no accompanying legislative history. Another shield against employment discrimination – sex – was added by a last minute floor amendment.[25]

Phillips v. Martin Marietta Corp, 400 US 542 (1971)

Even though the Civil Rights Act of 1964 was in place to prohibit all forms of discrimination for employment, an employer (Martin Marietta Corporation) had refused employment to a woman on the ground that it was not accepting job applications from women with pre-school-age children (while hiring men with children of the same age). Upon challenge to the same the Court of Appeals erred in the reading of Section 703[26] of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin and upheld the prohibition. Upon challenge to the above the Supreme Court vacated the earlier order and remanded the matter for further consideration.[27]

Justice Marshall while concurring with the above view, further stated, “By adding the prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes”.[28]This meant that characterizations of domestic roles of the sexes were not to serve as predicates for restricting employment opportunity. No such ‘bona fide occupational qualification’ could ever swallow the rule that allowed equal opportunity to all.[29]

Frontiero v. Richardson, 411 U.S. 690 (1973)

The Court applied the judicial scrutiny to a federal statute which required female Air Force officers, but not male officers, to prove that their spouses were in fact dependant on them for support – before increased medical benefits would be made available to them.[30] The Court, while holding that this classification was unreasonable, found that the legislation to be premised on the outdated and unsupported presumption of a wife’s dependency for support on her husband.[31]The US Court allowed the spouses of military women to receive the same benefits as did the spouses of men in the military.

“By according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.”[32]

The Supreme Court has stood for striking down classifications that discriminate against females, yet been vigilant to preserve laws that favor them.[33]

Right to privacy and decision making

Roe v. Wade, 410 US 113 (1973)

The relevant Texas law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother. This case concerned the right of an unmarried pregnant woman to terminate her pregnancy by abortion.[34] The constitutionality of the said law was questioned on the ground that the said law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and therefore violative of ‘liberty’ guaranteed under Fourteenth Amendment[35] and the right to privacy recognised in Griswold’s case[36].

Even when considering the detriments that a state legislation might impose upon the pregnant woman by denying this choice was considered by the US Court while finally concluding that the right of privacy is broad enough to cover the abortion decision.[37] The right, the Court stated, was nonetheless, not absolute and was subject to limitations wherein that the state may put regarding protection of health, medical standards, and prenatal life.[38]

Expressly affirming the Roe v. Wade principle, the Court held that a woman had a fundamental right to make the choice to have an abortion prior to the time that the fetus became viable while permitting only such regulation of the abortion procedure that it did not impose an “undue burden” on the woman’s right to choose to have an abortion.[39]

Right to property and inheritance

V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99

Even when the Legislature had enacted The Hindu Succession Act, 1956 which under Section 14(1)[40] provided that property of a female Hindu was to be her absolute property, a widow was denied of alienation of her husband’s property in her possession, by giving the above provision of law a limited reading.

The Supreme Court of India granted relief to the widow by laying down that Section 14(1) and the Explanation thereto had been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.[41] The Court further addressed the issue of ownership as a right against the world and not one restricted to familial ties.

“The right of the widow to be maintained is of course not a jus in rem since it does not give her any interest in the joint family property but it is certainly jus ad rem i.e. a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.”[42]

Mrs. Mary Roy v. State of Kerala, (1986) 2 SCC 209

This path breaking judgment decided against the constitutionality of the provisions of Travancore Christian Succession Act, 1092, wherein Christian women in Kerala could only inherit one-fourth (1/4th) of the share of the sons in her father’s property. These provisions were declared to be unconstitutional and void as being violative of Article 14[43] of the Constitution of India.[44] The Court also declared that intestate succession to the property of Indian Christians in the territories of the former State of Travancore was governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925, thus giving Christian women an equal share in their father’s property.[45]

Right to Education

United States v. Virginia, 518 U.S. 515 (1996)

In this case, the US Supreme Court noted that the state must demonstrate “exceedingly persuasive justification’[46] on the ground of which they intend to discriminate between two genders. The State of Virginia failed to do so when it excluded women from the educational opportunities provided by Virginia Military Institute thereby denying the equal protection of the laws. It is extremely important that colleges and universities deal with faculty, staff, and students without regard to sex, race, or ethnic origin.[47]

The U.S. Supreme Court in another decision found unconstitutional the exclusion of men from an all-female nursing school.[48]

The heightened assessment standards applicable to gender-based classifications do not make gender a proscribed classification, but this categorization by gender could be used to create or perpetuate the legal, social, and economic inferiority of women.[49]

Right to maintenance

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556

The Supreme Court of India in this case ruled in favor of the divorced wife (Shah Bano) and directed maintenance from her ex-husband under Section 125 of the Criminal Procedure Code, 1973[50] (with an upper limit of Rs. 500 a month) putting Shah Banu, a muslim wife, under the same ambit as any other Indian woman.

“Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife?” The Court not only questioned its inequality but also clarified that the provisions of the Criminal Procedure Code were secular and it was irrelevant whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens. The Court explained that such provisions essentially of a prophylactic nature cut across the barriers of religion. They do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes.

The Supreme Court assumed the role of a reformer and surmised it on the legislative intention of having a uniform civil code throughout India under Article 44 of the Constitution of India.

Danial Latifi v. Union of India, (2001) 7 SCC 740

The 5 judge bench of the Supreme Court upon interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986 observed that deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India could not be stated to have been effected by a reasonable, right, just and fair law.

The aforementioned Act allowed maintenance to a divorced woman only during the period of iddat, or till ninety (90) days after the divorce in accordance with the provisions of Islamic law. This was however, in stark contrast to Section 125 of the Criminal Procedure Code, 1973 which provided for general maintenance for wives, children and parents, irrespective of religion. The Act was also seen as diluting the effect of the Shah Bano case.

The Court stated that the provisions of the Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board did not appear to be reasonable and fair substitute of the provisions of Section 125, Criminal Procedure Code.

“In Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.”

The Act in question was only given appropriate reading upholding its validity in as much as fair and reasonable provisions were made for the divorced wife including her maintenance. Overcoming the limitation of the iddat period, the Court held that such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of the Act. Again, reading the provisions of the Act in favor of the divorced women the Court noted that “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”

Protection from sexual harassment at workplace

Meritor Savings Bank v. Vinson, 477 US 57 (1986)

The Supreme Court held that sexual harassment that creates a hostile work environment is a form of sex discrimination prohibited by Title VII[51] of the Civil Rights Act of 1964 (which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion).[52]The Court laid that there was no raison d’être to not apply the principle of hostile environment discrimination to sexual harassment cases, provided that the plaintiff establish a violation of Title VII by showing that discrimination based on sex created a hostile or offensive work environment.[53]

In defining “sexual harassment,” the Court noted that the Equal Employment Opportunity Commission’s Guidelines on Discrimination Because Of Sex[54] included “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The Guidelines also provided that such sexual misconduct constitutes prohibited “sexual harassment”, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”[55]

Vishaka v. State of Rajasthan, (1997) 6 SCC 241

A three-judge bench in 1997 in the absence of domestic law formulating any effective measures to check the evil of sexual harassment of working women at all workplaces, sought to examine the international conventions and norms for the purpose of guaranteeing of gender equality and right to work with human dignity. The Court deliberated over these international conventions in line with Articles 14[56], 15[57], 19(1)(g)[58] and 21[59] of the Constitution of India.

 

The Court not only found that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse; it also stated that gender equality included protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.

 

Reaching its pinnacle in judicial activism the Court laid down guidelines and norms making it necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. These guidelines not only defined sexual harassment behaviors, but also provided for Preventive Steps, Criminal Proceedings against perpetrators and third party harassers, Disciplinary Action, Complaint Mechanism with a Committee, Worker’s Initiative and Awareness against the evil sought to be remedied.

 

The above verdict was superseded by the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Gender neutral laws

Orr v. Orr, 440 US 268 (1979)

Though alimony was also a woman centric issue and has historically been awarded only to women, the convention now permits an award of alimony to either spouse.

The Supreme Court invalidated on equal protection grounds statutes providing that husbands, but not wives, may be required to pay alimony upon divorce and thus casted off the assumption that wives are dependent upon their husbands for financial support but husbands are never dependent on wives.[60]

“To withstand scrutiny’ under the equal protection clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.”[61]

It is noteworthy that the above decision did not only recognize the right of husbands to financial sustenance, but it also considered women to be as capable and competent as men so as to financially support them. This was a crucial detachment from the age old theory (See Muller v. Oregon) that a woman has always been dependent upon man.

Sessions v. Morales-Santana, 582 U. S. ____ (2017)[62]

The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a US citizen and the other a citizen of another nation. The main rule applicable to the present case was the requirement of the US-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed US -citizen fathers, but by another provision, it created an exception for an unwed US-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

The Court held that the gender line drawn by the Legislature was incompatible with the Fifth Amendment’s requirement[63] that the Government accord to all persons “the equal protection of the laws. The Government must show, at least, that its gender-based that the classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to achieving those objectives.”[64]  The Court noted that the provisions under challenge dated from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women were.[65] At present, however, laws granting or denying benefits “on the basis of the sex of the qualifying parent,” differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee.

Way forward – Institutionalization

This gender-justice-sensitization brought by the judiciary needs to be institutionalized invariably. Today a record 47 women were elected to the House of Representatives, 24 for the first time, in what became known as “The Year of the Woman”[66]. India, too, has set a record which we are all more than proud of. According to US-based ‘fact tank’ Pew Research Center, India is leading when it comes to countries where women have been at the helm for many years.[67]

Indeed, institutionalization is being witnessed in the very judiciary only with a rise in women judgeship. In a first, women judges were heading all the major High Courts in India, the same historical High Courts, which were among the first few created in colonial India.[68] The Delhi High Court bid adieu to its first lady Chief Justice, G. Rohini, who retired from her post on 13th April 2017. Delhi High Court is now being headed by Acting Chief Justice Gita Mittal. Justice Indira Banerjee was elevated as Chief Justice of Madras High Court on 5th April, 2017. Justice Manjula Chellur, who first assumed the office of Chief Justice of Calcutta High Court in August 2014, became the first ever woman Chief Justice of Calcutta High Court. She then proceeded to assume the office of Chief Justice of the Bombay High Court in August 2016.In the Calcutta High Court, Justice Nishita Mhatre, had been appointed as the Acting Chief Justice on December 1, 2016. It is noteworthy, upon Justice Nishita Mhatre’s retirement with effect from 20.09.2017; Justice Rakesh Tiwari was appointed Acting Chief Justice of Calcutta High Court.[69] However, it is pertinent to note that there is only one woman judge, Justice R. Banumathi, in the Supreme Court as against 24 male judges..

While women have been raising the bar in every walk of life, conversely, there are still prevalent cases of discrimination and sexism against their success. It is rather surprising that nowadays, where the general public is looking past any gender bias and is choosing lawyers based on competence not gender, women practitioners have been subjected to subtle sexism at the bar numerous times[70]. Most leading companies encourage women labor-force participation and ensure that women hold senior positions in companies to make strong business sense.[71] Yet, there are gender pay gaps existing between male and female engineers and there are eight times as many men as women in the industry.[72] There is also a huge chance that a female doctor might get bogged down by her gender. A doctor’s gender can still be a huge block to their career – especially when it comes to family commitments.[73]

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

  • Mahatma Gandhi

As long as the society is wary of such detestable conduct, it will not be an uphill task for the law enforcers to curb these insensitivities. However, looking at the majority of odds against women in today’s sexist world, there is a need for continuous supervision of any gender bias or discrimination against women. Since judiciary is the guardian of our rights, any gender bias shall be carefully guarded against in or outside the realm of the courtroom and this protection should be extended to all female justice seekers or attorneys or even judges. Not women, but any unbecoming behavior against their very dignity shall be ostracized.

Conclusion

The landmark judgments delivered by the Indian and US judiciary, bear testimony to the fact, that judges have shown more gender sensitivity than any other institution. Much against the straightjacket philosophy of the 16th century jurist Francis Bacon in his Essay of Judicature who said “Judges ought to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law[74], Judiciary has not limitedly focused on judicial formalism. It has consciously influenced social philosophy and balanced its judicial function, and yet been wary of trespassing into the sphere demarcated for the legislature, nonetheless bringing justice to and strengthening the scope of women’s rights each time.

“It is now acknowledged by leading jurists all over the world that judges are not descusitized and passionless instruments which weigh on inanimate and impartial scales of legal judgment, the evidence and the arguments presented on each side of the case. They are not political and moral eunuchs able and willing to avoid impregnating the law with their own ideas and judgment. The judicial exercise in constitutional adjudication is bound to be influenced, consciously or subconsciously, by the social philosophy and scale of values of those who sit in judgment”

                                                                                                – Late Justice P.N. Bhagwati

Whilst it is abundantly clear, the purpose of achieving “social justice” as enshrined in the Preamble to our Constitution is to secure the rule of law for all its citizens, justice, liberty, equality and fraternity. Therefore, when the Preamble itself highlights achieving their social justice, it becomes the bounden duty of the honorable courts to advance the cause of the social justice. It would proper to state that worthy normative goals of social justice (herein gender equality),can be and are served at least as well by observing foundational principles of impartiality, responsiveness, and sensitivity, as equally by allegiance to judicial activism. Thus, till the Courts, as the interpreters of law, continue to bridge the much widened gaps between the two genders, correct uncertainties in legislations, and harmonize results with justice through a method of free decision, the undying faith in the judiciary shall continue.

[1] Assembly Proceedings, January to March, 1647, available at  http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000001/pdf/am1–215.pdf

[2]Carpenter, Stephanie, “Margaret BrentIn American National Biography. New York: Oxford University Press, 1999 at pp. 57, 58;Hymowitz, Carol and Weissman, Michaele, A History of Women in America: From Founding Mothers to Feminists-How Women Shaped the Life and Culture of America, Random House Publishing Group (2011) at pp. 6, 7.

[3]Mattern,Joanne, (2003) Elizabeth Cady Stanton and Susan B. Anthony: Fighting Together for Women’s Rights, Rosen Publishing Group, p.12

[4] Elizabeth Cady Stanton,  The Solitude of Self, Speech delivered to the Committee of the Judiciary of the United States Congress (1892), available at http://www.womenspeecharchive.org/files/The_Solitude_of_Self_1192139082217.pdf ; Elizabeth Cady Stanton,  Address on Woman’s Rights, (1848), available at http://www.womenspeecharchive.org/files/Stanton_1848_Address_on_Womans_Righ_AFA7F90141C50.pdf

[5]Engels, Friedrich, (1942) Origin of the Family, Private Property and the State, New York, International Publishers.

[6] Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention, para. 22.

[7]  Equal rights as to marriage, during marriage and at its dissolution (Article 16), right to equal pay for equal work (Article 23), education (Article 26), full equality to a fair and public hearing by an independent and impartial tribunal (Article 10), equal suffrage and access to public service (Article 21) and that all human beings are born free and equal in dignity and rights, endowed with reason and conscience to act towards one another in a spirit of brotherhood (Article 1), and equal entitlements of women and men (Article 2, Article 7).

[8]‘Equality before law’ and ‘Equal protection of laws’ (Article 14), securing just and humane conditions of work and for maternity relief (Article 42), power to the State to make special provisions favoring women (Article 15(3)), to promote harmony and to renounce practices derogatory to the dignity of women (Article 51A(e)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every Panchayat (Article 243D(3)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every municipality (Article 243 T (3) and Article 243T (4)). Non-discrimination on the basis of sex (Article 15), equal pay for equal work (Article 39), non-discrimination on the basis of sex regarding employment (Article 16).

[9] Justice Leila Seth was appointed as the first woman judge of Delhi High Court in 1978 and the first woman Chief Justice of the Himachal Pradesh High Court in 1991.

[10] See, Justice        Bhagwati, P.N., Judicial Activism and Public Interest Litigation 23 Colum. J. Transnat’l L. 561 (1984-1985); S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001); Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, The American Journal of Comparative LawVol. 37, No. 3 (Summer, 1989), pp. 495-519

[11] See, e.g., H.L.A. Hart, The Concept of Law 124-30 (1961) (formalism as refusal to acknowledge necessity of choice in penumbral area of rules); M. Horwitz, The Transformation of American Law 254 (1977) (formalism as refusal to recognize instrumental functions of law); Strauss, Formal and Functional Approaches to Separation-of-Powers Questions?A Foolish Inconsistency?, 72 Cornell L. Rev.488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions); Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502, 1506-07 (1985) (formalism as artificial narrowing of range of interpretive choices)

[12]83 US 130, 141 (1872)

[13]Id. at 142

[14]Id.

[15]Pauli Murray, The Rights of Women, in The Rights Of Americans: What They Are—What They Should Be, Norman Dorsen (1971) 521, 525; See AlsoBrief of American Civil Liberties Union as Amicus Curiae at 37 n.46, 37–39, Frontiero v. Laird, 411 U.S. 677 (1973) (quoted Murray and criticized Muller, noting that Muller “has become a major roadblock to women seeking equal opportunities for remuneration and promotions in blue-collar employment”).

[16]208 U.S. 412, 422 (1908)

[17]Id. at 421

[18]Fifteenth Amendment, US Constitution – Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-16.pdf

[19]Nineteenth Amendment, US Constitution – The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Available at https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016-10-20.pdf

[20] 261 US 525, 563, 567 (1923)

[21]Supra,note 17

[22] 261 US 525, 569 (1923

[23] 261 US 525, 553 (1923)

[24]The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[25]See generally Jo Freeman, How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW & INEQUALITY 163 (1991)

[26]Section 703, Civil Rights Act of 1964 – Discrimination Because Of Race, Color, Religion, Sex, Or National Origin

[27] 400 US 542, 544 (1971)

[28]Id. at 545

[29]Id. at 545; The prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing “to hire an individual based on stereotyped characterizations of the sexes.”Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 CFR §1604.1(a)(1)(ii).See Bowe v. Colgate-Palmolve Co., 416 F.2d 711 (CA7 1969); Weeks v. Southern Bell Tel. &Tel. Co., 408 F.2d 228 (CA5 1969). Even characterizations of the proper domestic roles of the sexes were not to serve as predicates for restricting employment opportunity.

[30] Frontiero v. Richardson 411 U.S. 677 (1973)

[31]Id. at 681

[32]Id. at 684

[33] Ginsberg, SomeThoughts on Benign Classification in the Context of Sex, 10 CONN. L. REV. 813. 818 (1978)

[34]See Abortion: Roe v. Wade, 410 U.S. 113 (1973), Doe v. Bolton, 410 U.S. 179 (1973), 64 J. Crim. L. & Criminology 393 (1973)

[35]Fourteenth Amendment, US Constitution (ratified in 1868) – Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection – Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[36] Rejecting a state law that makes it illegal to disseminate information about contraception to married couples, the U.S. Supreme Court rules in Griswold v. Connecticut (381 U.S. 479) that people enjoy a fundamental zone of privacy.

[37] 410 U.S. 113, 152-153

[38]Id. at 153-155

[39] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 872-876 (1992); See generallyMichael Hill, Why Overturning Roe v. Wade Could Cost Republicans VotesCloseUp, SEATTLE TIMES, July 27, 2005, at A3; Siegel, Reva B., Before (and After) Roe v. Wade: New Questions About Backlash (2011). Faculty Scholarship Series. Paper 4135.

[40]Section 14(1), Hindu Succession Act, 1956 – Property of a female Hindu to be her absolute property (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

[41] (1977) 3 SCC 99, 122

[42]Id.  at 144

[43]Article 14, Constitution of India, 1950 – Equality before Law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[44] (1986) 2 SCC 209, 211

[45]Id. at 214

[46]  See Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982)

[47] 518 U. S. 515, 525 (1996)

[48]Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)

[49] Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648;  United States v. Virginia, 518 U.S. 515, 531-534; See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women)

[50]Section 125, Code of Criminal Procedure, 1973 – Order for maintenance of wives, children and parents – (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

[51] The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[52]See Suzanne Egan, Meritor Savings Bank v. Vinson: Title VII Liability for Sexual Harassment, 17 Golden Gate U. L. Rev. (1987). http://digitalcommons.law.ggu.edu/ggulrev/vol17/iss3/3

[53] 477 US 57, 66, 71 (1986)

[54] EEOC Guidelines on Discrimination Because of Sex, available at http://lor.gvtc.org/uploads/SEC622/EEOCGuidelines.pdf , accessed on 10th June, 2017

[55]See generally, McDonnell Douglass Corp. v. Green, 411 U.S. 792,801 (1973) (“In the implementation of [employment decisions], it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.”); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1971) (“In forbidding employer’s to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sexual stereotypes. [Title VII] subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past.”)

[56]Ibid

[57]Article 15, Constitution of India, 1950 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[58]Article 19(1)(g) , Constitution of India, 1950 – Protection of certain rights regarding freedom of speech, etc. – All citizens shall have the right – to practise any profession, or to carry on any occupation, trade or business.

[59]Article 21, Constitution of India, 1950 – Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

[60] 440 U.S. 268, 281-82 (1979)

[61] 440 U.S. 268, 279 (1979).

[62]  Available at https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

[63]Fifth Amendment, US Constitution – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-6.pdf

[64] Virginia, 518 U. S., at 533

[65] See, e.g., Hoyt v. Florida, 368 U. S. 57, 62 (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (States may draw “a sharp line between the sexes”)

[66] See https://www.nytimes.com/interactive/2017/04/02/us/02timeline-listy.html?rref=collection%2Fissuecollection%2Fwomen-today-20170402&_r=0

[67] Abigail Geiger, Lauren Kent, Number of women leaders around the world has grown, but they’re still a small group, (8th March, 2017) available at http://www.pewresearch.org/fact-tank/2017/03/08/women-leaders-around-the-world/ ; accessed on 10th June, 2017

[68]Dhananjay Mahapatra, In a first, women judges head all major High Courts in India, (8th April, 2017) available at http://timesofindia.indiatimes.com/india/in-a-first-women-judges-head-all-major-high-courts-in-india/articleshow/58073977.cms

[69]Saba, Justice Rakesh Tiwari appointed Acting Chief Justice of Calcutta High Court, (19th September, 2017) available at http://blog.scconline.com/post/2017/09/19/justice-rakesh-tiwari-appointed-acting-chief-justice-of-calcutta-high-court/

[70] Poulomi Banererjee, When the bar has a male tilt: Gender imbalance in the judiciary, Hindustan Times, (23rd October, 2016) available at http://www.hindustantimes.com/india-news/when-the-bar-has-a-male-tilt-gender-imbalance-in-the-judi/ciary-and-its-impact-on-verdicts/story-VuSxHvVDfClbi3ycmZyJgO.html, accessed on 3rd June, 2017.

[71] Roshika Singh, MoreWomen Employees And Leaders, A Crying Need In Indian Companies (1st June, 2017) http://www.huffingtonpost.in/roshika-singh/more-women-employees-and-leaders-a-crying-need-in-indian-compan_a_22092709/

[72]Radhika Sanghani, Male-dominated engineering has an 87 per cent gender gap – but it pays pretty well; (23rdJune, 2015) available at http://www.telegraph.co.uk/women/womens-business/11692996/Women-In-Engineering-Day-Gender-gap-in-male-dominated-industry-falls.html ; accessed on 10th June, 2017.

[73] Gráinne Ní Aodha, Don’t keep it a secret’: One in five female doctors has been sexually harassed at work, (2nd June, 2017) available at http://www.thejournal.ie/sexism-in-the-healthcare-sector-3421687-Jun2017/, accessed on 10th June, 2017

[74] See The Works of Francis Bacon available at https://www.stmarys-ca.edu/sites/default/files/attachments/files/Essays.pdf

Juvenile delinquency in India: A critical analysis

Rupaly Middha & Shashwat Tomar ((V Semester students of B.A. L.LB (Hons.), Hidayatullah National Law University, Raipur)).

ABSTRACT

“Treat the Cause and Not the Symptom. Government of India needs to wake up to this idea when it comes to dealing with juvenile delinquents”.

Juvenile delinquency problem has been in existence since time immemorial. It is an important feature of all societies, be it simple or complex. To solve this problem The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on 15th January 2016 which defines new boundaries with regard to penalizing juveniles and providing children from impoverished backgrounds with the basic needs and facilities that they require to live.

This paper will mainly focus on the juvenile delinquency, causes of juvenile trajectories, evolution of juvenile justice system in India, need of the Juvenile Justice Act, 2015. Further an attempt would also be made to answer certain core questions viz; What is the difference between a minor and a juvenile, What is Juvenile Delinquency, legislation in Indian in this regard and the juvenile justice system, Why the act was needed when there was already a law for juveniles and also a comparative analysis between Juvenile Justice Act, 2000 and amended act.

Introduction

“The juvenile delinquent does not feel his disturbed personality. The intelligent man does not feel his intelligence or the introvert his introversion[1]”.

F. Skinner

Children are the foundation on which the dynamic and vibrant future of a nation shall be built. They are a nation’s greatest asset. The delicate mind of a child can easily be molded and subjected to an inclination towards criminal activities. This has now turned out to be the most debatable issue for the society. Delinquency and Juvenile both these terms constitute to form the most important subject matter of criminology. A perception of child’s mind is going through the most transitional phase with the development of society. By the beginning of the 17th century the second idea of childhood emerged when the child was perceived as a miniature adult with all the inclinations towards evils and potential for a fallen human nature[2]. Juvenile Justice has now turned out to be one of the most diverse fields not only in Indian law but also in the world.

Equal opportunities should be given to all children during their growth period for reducing inequality and ensuring social justice which would serve as an efficacious tool to curb delinquency in juveniles. Juvenile delinquency is a big breading centre of criminals. The word delinquency is derived from the Latin word “delinquere” which means to abandon. Juvenile and minor are used in different context in legal terms. A young criminal offender is referred as a juvenile and minor is related to legal capacity or majority[3].Results of self-report studies indicate that an overwhelming majority of those who participate in violence against the young people are same in age and gender as their victims and in most of the cases offenders are males acting in groups[4].

Who is a Juvenile?

Juvenile means anyone who has not yet reached the age of adults in terms of childishness or immaturity. In the Legal sense, a juvenile can be defined as a child who has not attained a certain age at which he can be held liable for his criminal acts like an adult person under the law of the country.  “Juvenile” or Child[5] is a person who has not completed eighteen years of age[6].

Difference between a Juvenile and a Minor

A minor refers to a person who is not yet an adult in the eyes of the law. In this context minor is the opposite of an adult. The term often refers to something that is less significant; e.g., minor inconveniences or minor disruptions.

Juvenile, on the other hand indicates legality. In technical terms, it does mean young but has a negative connotation to it. It tends to imply immaturity and childishness and in legal terms, it refers to a young person who has been accused of a crime. In this context, juvenile is sort of the opposite of a minor as minor indicates an innocent child whereas juvenile tends to imply a young criminal[7].

Juvenile Delinquency

William Coxton in the year 1484 used the word delinquent to refer a person who was found guilty. Juvenile delinquency means the involvement by the teenagers in an unlawful behaviour who is basically under the age of 18 and commits an act which is considered as a crime. A child is known as a delinquent when he/she perpetrate a mistake which is against the law and is not accepted by the society. A child is known as a delinquent when he/she commits a mistake which is against the law and which is not accepted by the society.

A child is born innocent, but due to the unhealthy environment, negligence of the basic necessities and wrong company, a child may turn into a delinquent. Usually, somebody has to have intent to break the law in order to commit a crime, but that is not always the case. A person can be charged with a crime if that person is not aware of the law.

No conduct constitutes a crime unless it is declared as criminal in the laws of the country. Delinquent and criminal behaviour may brim among young people as they negotiate the transition from childhood to adulthood in an increasingly complex and confusing world[8].Young people who are at the risk of becoming delinquent usually lives in difficult circumstances[9].

Causes of Delinquent Trajectories

Understanding the causes of juvenile delinquency is an integral part of preventing a young person from involvement in inappropriate, harmful and illegal conduct. Four primary risk factors can identify young people inclined to delinquent activities: individual, family, mental health and substance abuse. Often, a juvenile is exposed to risk factors in more than one of these classifications.

Individual Risk Factors

Factors in this sphere are identified as any characteristics directly related to or within a specific person that affects the likelihood of that individual engaging in violent and delinquent behavior[10].Several risk factors are associated with juvenile delinquency. A minor whose intelligence level is low and is devoid of proper education is more prone to become involved in delinquent conduct. Other risk factors include impulsive behavior, uncontrolled aggression and an inability to delay gratification. In many cases, multiple individual risk factors can be identified as contributing to a juvenile’s involvement in harmful, destructive and illegal activities.

Family Risk Factors

Family traits such as poor parenting skills, family size, home discord, child maltreatment, and antisocial parents are risk factors linked to juvenile delinquency[11].A constant pattern of family risk factors are associated with the development of delinquent behavior in young people. These family risk factors include a lack of proper parental supervision, ongoing parental conflict, neglect, and abuse (emotional, psychological or physical).

Parents who demonstrate a lack of respect for the law and social norms are likely to have children who think similarly. Finally, those children that display the weakest attachment to their parents and families are precisely the same juveniles who engage in inappropriate activities, including delinquent conduct.

Mental Health Risk Factors

Various mental health factors are also contributing to juvenile delinquency. It is important to keep in mind, that a diagnosis of certain types of mental health conditions- primarily personality disorders cannot be made in regard to a child. However, there are precursors of these conditions that can be exhibited in childhood that tend to end up being displayed through delinquent behavior. A common one is conduct disorder. Conduct disorder is defined as “a lack of empathy and disregard for societal norms”.

Substance Abuse Risk Factors

Substance abuse is found in many numbers of cases of juvenile delinquency. Two trends are identified in regard to substance abuse and minors. First, juveniles are using more powerful drugs today than was the case as recently as 10 years ago. Second, the age at which some juveniles begin using drugs is younger. Children in elementary schools are found to be using powerful illegal drugs. The consumption of these illegal substances or the use of legal substances illegally encourages young people to commit crimes to obtain money for drugs. Additionally, juveniles are far more likely to engage in destructive, harmful and illegal activities when using drugs and alcohol.[12]

Historical Development of Juvenile Justice System in India

Earlier the concept of juvenile justice was based on a belief that the problems of juvenile delinquency in aberrant situations are not amenable to the resolution within the edifice of traditional process of criminal law[13]. The term ‘Juvenile’ justice emerged from the word ‘juvenis’ which means young so it implies that it is a justice system for the young. During the course of time, it was felt that juvenile justice system beside catering the needs of young offenders, it also deliver specialized and preventive treatment services like community support, harmonizing impersonal state intervention with the family, community and institutional interventions for the children and as a means of prevention, rehabilitation and socialization through schools and religious bodies.

Juvenile Legislations

The Apprentices Act, 1850 was the first legislation dealing with children in conflict with the law in India. The Indian Jail Committee established in 1919 urged for demonstrating separate institutions and to have separate trials for the juveniles. Reformation and Rehabilitation of juveniles should be the motive of the law.[14]

The Code of Criminal Procedure, 1898 contained the provisions of juvenile justice along with many other things regarding an adjective or procedural law. Many States enacted their own State enactments in adjudication of matters involving the child or the juveniles which were in force in the respective States such as: Bombay Children Act, 1924 Bombay Children Act, 1948 U.P. Children Act, 1951 West Bengal Children Act, 1959 Rajasthan Children Act, 1970 Bihar Children Act, 1982, etc. The Children Act, 1960 applied only to Union Territories. There were many such enactments in many states of India which prevailed for administration of juvenile justice.[15]

Supreme Court in its judgment in Sheela Barse’s case played a vital role in passing the constant and uniform law on juvenile justice where it acknowledged that the children in the jails are subject to special treatment and recommended that parliament should make the uniform law applicable throughout the country[16]. As an outcome of the case, for the first time, the law mandated care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for adjudication and disposition of juvenile delinquency matters in India[17].

Normative Structure of Juvenile Justice System

The National Policy for the Welfare of Children, 1974 was formulated that declared the children of the nation to be the supremely important asset. [18] So there should be a prominent part in the national plans for children’s programs for development of human resources, so that they grow up to become robust citizens.[19] The main aim would be equal opportunities for development to all children during the period of growth which would ultimately serve the large purpose of reducing inequality and ensuring social justice.[20]

So after the proper review of the existing Children’s Act, the Juvenile Justice Act, 1986 was enacted to implement some objectives.

Juvenile Justice Act, 1986

The indigenous thinking on Juvenile Justice has been keeping up with the global trends in this field. With the adoption of the United Nations Standard Minimum Rules for the administration of the Juvenile Justice, India has become the first country to grow its system in the light of the principles enunciated therein. The main reason behind enacting the Juvenile Justice Bill of 1986 was to bring the operation of the Juvenile Justice System in the country in conformity with these Rules. And the other objectives were to lay down a uniform legal framework for Juvenile Justice, to provide a specialized approach towards the prevention and control of juvenile delinquency, to come up with the machinery and infrastructure for Juvenile Justice operations, to establish the norms and standards for the administration of Juvenile Justice, to develop the proper linkages and coordination between the formal system and voluntary agencies and to constitute special offences in relation to juveniles and to prescribe punishment thereof.[21] With its enforcement, the Juvenile Justice Act of 1986 has replaced the earlier mechanism of the Children Act enacted by the Central and State Governments for dealing with children coming in conflict with Jaw. This Act does not only aim at restructuring the system in the line of internationally proclaimed set of principles but also intends to evolve a new concept of juvenile justice within the true meaning of social justice as enshrined in the Constitution of India.[22] It surely represents an enlightened response to the socio-cultural and economic transition that affects juveniles more than any other segment of society.[23] It attempts to bring them back within the mainstream of social life. It calls for a diversified approach towards the recovery, re-education and rehabilitation of various categories of socially maladjusted juveniles, through an active participation of the public.[24]  In order to achieve this goal, the Act imbibes the essential elements of all the due processes, parens patriae and participatmy models. The definition of juvenile, as per this act, included boys who had not completed the age of 16 and girls who had not completed the age of 18 years. The law undoubtedly places a crucial duty on the state to appropriately utilize the resources from various sectors of socio-economic development in ensuring the well-being and welfare of juveniles and a chance to recover if they happen to falter.[25]

Juvenile Justice (Care and Protection of Children) Act, 2000

Diagnosing the current developments, the juvenile justice administration in India was found to have several flaws or gaps in legal provisions and shortcomings by the way of linkages between the governmental and non-governmental efforts in the care, treatment and rehabilitation of such children. The JJ Act 1986 required that the pre-existing system built around the implementation of the then available Children’s Acts be restructured. However, due to the absence of a national consensus on the time frame for such a restructuring, the steps taken by most of the State Governments were still heavily short of the proclaimed goals.[26] The inadequacy of the juvenile justice personnel, in terms of both quantity and quality continues to be the weakest part of the operational strategy. In order to rationalize and standardize the approach towards juvenile justice in keeping with the relevant provisions of the Constitution of India and International obligations in this regard, the Juvenile Justice (Care and Protection of the Children) Act, 2000 was (re)enacted by the government of India.[27] The Interim Report of the Working Group of Ministry of Social Justice and Empowerment (2001-· 02) has drawn attention to some additional inputs incorporated under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act with all additional inputs has been enforced since April 1, 2001, to deal with the children within its purview. The upper age limit of the children within the purview of the law has been raised. The upper age limit of the boys has been increased from 16 to 18 years, which would increase the actual coverage by seven times. It was then mandatory to constitute a ‘National Level Advisory Board’ on juvenile justice, to advice the Central and State Governments as well as the Voluntary Organizations associated with this work.[28]

Juvenile Justice (Care and Protection of Children) Act, 2015

But then again the Juvenile Justice Act, 2015 was enacted to replace the existing Indian Juvenile Delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences can be tried as adults.

In our country, it was the high time to bring some reform in the Juvenile laws as there has been a steep rise in serious crimes involving youth of 16 – 18 years of age and they very well know that below 18 years is the ‘getaway pass’ for them from the criminal prosecution. The punishment has to be made a bit deterrent in order to inject the feelings of fear in the mind of the criminal. The recent Nirbhaya rape case has caused utter dismay, concern and outrage amongst the people. The gruesome act of brutalizing her with an iron rod was done by none other but a juvenile and he has been sentenced for a period of 3 years as per Section 15 of JJ Act, 2000 as per our law for juveniles. The principal ought to have been followed for trying juvenile offenders is that Juvenility should be decided as per the state of mind and not just the state of body.[29] In the recent Nirbhaya rape case all the other co- accused are awarded death sentence but the person who committed the most brutal part of the case has been awarded a mere 3 years of remand as per JJ Act, 2000.[30]

In the light of above incident, the bill was introduced in the parliament by Maneka Gandhi on 12th August 2014. The bill adopts several new features which were missing in the earlier act like it adopts the concept of Hague convention and cooperation in respect of Inter-country Adoption, 1993. The bill also seeks to make adoption process of orphaned, abandoned and surrendered children more streamlined. One of the most criticized step in the new juvenile justice bill 2015 is introduction of judicial waiver system which will allow treatment of juveniles in certain conditions, in the adult criminal justice system and to punish them as adults. Juvenile Justice Boards (JJB) and Child will be constituted in each district.  The role of JJB would be to conduct a preliminary in each district.  The role of JJB would be to conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult.  The CWC will determine institutional care for children in need of care and protection. It is for the first time in India that such provisions have been applied.
This act totally deals with punishing children involved in crimes which are sort of well planned crimes, which creates a sense that the person committing the crime clearly know about what he is doing and still committing it, the crimes which are heinous in nature like rape and murder, dacoity or kidnapping.[31]

This new act is considered as the biggest legal reform by the Indian judiciary and should be welcomed and implemented fairly and considered as a move towards stopping crimes by the teenagers of country by creating a sense of fear of punishment in the minds of teenagers by introduction of such type of laws.[32]

Role of Judiciary

Supreme Court and various High Courts in India play a very important role in the development of Juvenile Justice System in India. In the initial stage, the cases related with juvenile delinquent are dealt by the lower courts but the trends of the judicial approach towards a juvenile in conflict with the law, reflected by the judgments of Hon’ble Supreme Court and various high courts. The courts/ juvenile justice board are under the statutory and Constitutional duty to deal with the juveniles in conflict with the law. The competent authority is required to make due inquiry and give full opportunity to the juveniles to put his case before the court or board concerned. Child delinquency is accepted as a major problem faced by both developing and developed countries. To overcome this obstacle, the governments have established many courts for implementation of various law enacted and in this way contributed a lot in the fields of juvenile justice for the benefit of juvenile offenders. Judiciary on various occasions has expressed great concern relating to the proper implementation of beneficial provisions of law relating to children[33].

In Sheela Barse v Union of India[34], the Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offense could lodge, pending investigation and trial will be expedited by juvenile courts. In Sheela Barse v. Secretary, Children Aid Society[35], the Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials and the proper provision of care and protection of children in observation Homes.

In M.C. Mehta v State of Tamil Nadu[36], the Supreme Court pronounced upon the constitutional perspective of the abolition of Child labor and issued appropriate guidelines to the Government of India with respect to compulsory education, health, nutrition, etc of the child laborers. In Sakshi v Union of India[37], the Supreme Court directed the government/ Law commission to conduct a study and submit a report on the means of curbing child abuse.

Role of Police

It is basically the police who arrests the juvenile and produces him before the Juvenile Justice Board. A juvenile’s first contact with the juvenile justice system is through the police.In any circumstances, a juvenile can be kept within the police lock-up or jail[38]. A juvenile’s case is investigated by the police and the charge-sheet is submitted before the competent authority for the same and also after the completion of inquiry, accompany the juvenile to the special home or his place of residence when below 18 years of age[39].The police also have the authority to immediately on apprehension release a juvenile on bail[40].

The principle on which all juvenile systems are based[41] is Welfare of the juvenile.Special juvenile police unit including the law enforcement officials are primarily engaged in the prevention of juvenile crime under this Act to perform their functions more effectively.In every police headquarters, a minimum of one officer with the full ability and appropriate training and orientation is also designated as the juvenile welfare officer[42].

Prevention & Early Intervention

In light of the growing body of research, we now know that the better and more cost-effective place to stop the “cradle to prison pipeline” is as close to the beginning of that pipeline as possible. Early intervention prevents the onset of delinquent behaviour and supports the development of a youth’s assets and resilience.[43] While many past approaches have focused on remediating visible and/or longstanding disruptive behaviour, research has proved that prevention and early intervention are way more effective.[44]

The Interagency Working Group for Youth Programs has defined positive youth development as “an intentional, pro-social approach that engages youth within their communities, schools, organizations, peer groups, and families in a manner that is productive and constructive; recognizes, utilizes, and enhances youths’ strengths; and promotes positive outcomes for young people by providing opportunities, fostering positive relationships, and furnishing the support needed to build on their leadership strengths.[45]

Positive Youth Development

Several researchers have promoted a positive youth development model to address the needs of youth who might be at risk of entering the juvenile justice system.

One positive youth development model addresses the six life domains of work, education, relationships, community, health, and creativity. The two key assets needed by all youth are (1) learning/doing and (2) attaching/belonging. When the necessary supports and services are provided to assist youth in the six life domains, it is expected that positive outcomes will result.[46]

What are Effective Programs?

Under this prevention and early intervention framework, huge research is being conducted to determine which of the many existing programs are truly effective. Current studies indicates that effective programs are those that aim to work as early as possible and focus on known risk factors and the behavioural development of juveniles.[47] In general, the Office of Juvenile Justice and Delinquency Prevention recommend that the following types of school and community prevention programs be employed:

  • Classroom and behavior management programs
  • Multi-component classroom-based programs
  • Social competence promotion curriculums
  • Conflict resolution and violence prevention curriculums
  • Bullying prevention programs
  • Afterschool recreation programs
  • Mentoring programs
  • School organization programs
  • Comprehensive community interventions

The Indian Government has done a lot for preventing Juvenile delinquency in the country but there is still a long way to go before the government. Some special provisions have been implemented in India for the Juvenile Delinquents; Observational homes have been established etc. And this intervention and the preventive programs are very vital in getting the juveniles back to streamline.

Suggestions and Recommendations

In order to make full use of the legal provisions available for juvenile, the State may initiate the following steps:

  • Through a program of education, promotion, and organization, form groups of local citizens and assist these groups in conducting activities aimed at the prevention and control of juvenile delinquency, making use of local people and resources for the following purposes.
  • Combating local conditions known to contribute to juvenile delinquency.
  • Advise local, state, and federal officials, public and private agencies, and lay groups on the needs for and possible methods of the reduction and prevention of juvenile delinquency and the treatment of delinquent children.[48]
  • Consultation with the schools and courts of this state on the development of programs for the reducing and preventing delinquency and the treatment of delinquents.
  • Assisting any community within the state by conducting a comprehensive survey of the community’s available public and private resources, and recommend methods of establishing a community program for combating juvenile delinquency and crime, but no survey of that type shall be conducted unless local individuals and groups request it through their local authorities, and no request of that type shall be interpreted as binding the community to following the recommendations made as a result of the request.
  • Evaluating the rehabilitation of children committed to the department and prepare and submit periodic reports to the committing court for the following purposes[49]:
  • Administering within the state any juvenile justice acts and programs that the governor requires the department to administer.
  • Visiting and inspecting jails, detention facilities, correctional facilities, facilities that may hold juveniles involuntarily, or any other facility that may temporarily house juveniles on a voluntary or involuntary basis.
  • Applying for, allocating, disbursing, and accounting for grants that are made available pursuant to juvenile justice acts, or made available from other state, or private sources, to improve the criminal and juvenile justice systems in the state. All money from juvenile justice act grants shall, if the terms under which the money is received require that the money be deposited into an interest bearing fund or account, is deposited in the state treasury to the credit of the juvenile justice program purposes fund, which is hereby created. All investment earnings shall be credited to the fund.[50]
  • Assisting, advising, and making any reports that are required by the governor, attorney general, or general assembly.

Although drug testing is an additional expense for juvenile justice agencies, it often can save money over time by helping staff manage cases more appropriately, thereby preventing further substance abuse and delinquency that return youth to detention or confinement and probation or other juvenile justice agencies. However, the most important reason for implementing drug testing is its benefits for individual youth, their families, and communities. When lives can be reclaimed from patterns of substance abuse and delinquency, the personal and social advantages are immense.

CONCLUSION

India is perhaps the only country in the world which has the dubious distinction of having maximum number of laws to regulate the conduct of society. It is the only country where almost all aspects of human behavior are sought to be governed by laws rather than through education or innate enlightenment which is the preserve of every egalitarian society. In this fast changing world where development of science and technology keeps us on the run with rapidly occurring incredible changes that affect our life styles, we can’t remain contented/being confined in a straitjacketed idealist frame of laws which have no bearing on the present day situation. We have to be pragmatic and realistic rather than bigoted with a kind of idealism that hardly works now.

We may conclude that we have to take a serious view of the changing trends of behavior among our children which has virtually made age as too superfluous and irrelevant factor determining who actually is a Juvenile in real sense and who is not and tailor out a socio-legal plan to govern their conduct in such a way that they get full opportunity to develop their faculties without losing the bliss of their childhood such as innocence, naughtiness, playfulness, which are the basic attributes of childhood and ultimately turnout to be good human beings. The aim of juvenile justice should be that any reaction to juvenile offenders should always be in proportion to the circumstances of both the offender and offence. Then only we could proudly say our children are assets of our nation on whom we can stake our bright future otherwise they would become a liability to not only the parents but to the whole society.

[1] B. F. Skinner, an American psychologist, behaviorist, author, inventor, and social philosopher.

[2] B.B. Pande, The Indian Juvenile Justice Jurisprudence and the Convention on the Rights of the Child (Aug. 1, 2017, 7:59 p.m.), http://www.workingchild.org/htm//jj.html.

[3] Bryan A. Garner, Black’s Law Dictionary (9th Edition, 2009).

[4] “First periodical report on crime and crime control in Germany”, Federal Ministry of the Interior and Federal Ministry of Justice, (Berlin, July 2001).

[5] S. 2 (k), The Juvenile Justice (Care and Protection of Children) Act, 2000.

[6]Who is a Juvenile, Special Police unit for women and children (July 21, 2017, 6:29 P.M.) http://www.dpjju.com/index.php?option=com_content&view=article&id=52&Itemid=164.

[7]Difference between minor and juvenile, DESCRIPTIVE ANALYSIS AND COMPARISONS (July 24, 2017, 3:21 A.M.), http://www.differencebetween.info/difference-between-minor-and-juvenile.

[8] Barton W. and Butts J., Building on Strength: Positive Youth Development in Juvenile Justice   Programs, Chapin Hall Center for Children at the University of Chicago (2008).

[9] United Nations, “Report of the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, 10-17 April 2000” (Aug. 15, 2017, 7:00 P.M.).

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/2, last seen on 19/03/2017.

[10] Development Services Group, Inc. 2015. “Risk Factors for Delinquency” Literature review. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention. http://www.ojjdp.gov/mpg/litreviews/Risk%20Factors.pdf Last Update: December 2015.

[11] Crockett, L.J., Eggebeen, D.J., and Hawkins, A.J., 14 Father’s presence and young children’s behavioral and cognitive adjustment, SAGE JOURNALS 355–377, 361 (1993).

[12] P. Haveripet, Causes and consequences of juvenile delinquency in India, RECENT RESEARCH IN SCIENCE AND TECHNOLOGY (Aug. 18, 2017, 12:21 A.M.),  http://recent-science.com/.

[13]V. Kumari, the Juvenile Justice in India: from welfare to rights, 1 OXFORD U.P (1st ed., 2004).

[14] K.P Mukundan, Study of the status of the justice delivery system for juveniles in conflict with law in Maharashtra , Mumbai (2003).

[15] P. Ghosh, Evolution of Juvenile Justice System in India, SHARE YOUR ESSAY (Aug. 16, 2017, 4:30 P.M.), http://www.shareyouressays.com/119420/essay-on-the-evolution-of-juvenile-justice-system-in-india.

[16] Sheela Barse & Anr. v. Union of India & Ors., 1986 AIR 1773 ORS.

[17] The Juvenile Justice Act, 1986.

[18] S.S. Thilakarathna, Children: Future Pillars of the Nation, FEATURES (Aug. 20, 2017 8:18 P.M.), http://www.news.lk/fetures/item/7661-children-are-the-future-pillars-of-our-nation-it-s-our-responsibility-to-protect-them.

[19] Laxmikant Pandey v. Union of India, 1984(2) SC 244.

[20] Gaurav Jain v. Union of India, 1997 (8) SCC 114.

[21] Yogesh Snehi, State and Child Justice: Stories of Delinquent Juveniles, 39 ECONOMIC AND POLITICAL WEEKLY 4512-4515, 4512 (2004).

[22] V. Kumari, The Juvenile Justice System In India: From Welfare To Rights, OXFORD U.P.  (2nd Ed., 2010).

[23] Bandhua Mukti Morcha v. Union of India, (1997) 10 SC 551.

[24] Alice Jacob & Kusum Kumar, Child Welfare, 7 CHILD AND THE LAW 35-49, 41 (1979).

[25] Supra 22.

[26] M. N. Kulkarni, Justice for ‘Delinquents’, 29 ECONOMIC AND POLITICAL WEEKLY, 1570-1607, 1575 (1994).

[27]R. Pandey, India: Juvenile Justice Act Amendment “Need Of Hour”, SINGH & ASSOCIATES (Aug. 19, 2017, 8:22 P.M.), http://www.mondaq.com/india/x/273428/Crime/JUVENILE+JUSTICE+ACT+AMENDMENT+NEED+OF+HOUR.

[28] The Juvenile Justice Act, 2000.

[29] Supra 27.

[30] Ibid.

[31] T. Pankaj, the Juvenile Justice Act, 2015, LEGAL SERVICES INDIA (July 29, 2017, 8:31 P.M.), http://www.legalservicesindia.com/article/article/juvenile-justice-act-2015-2147-1.html.

[32] Kiran Bedi, Amended Juvenile Justice Act is a message for society, THE HINDUSTAN TIMES, Dec. 24, 2015, at 5.

[33] Juvenile Justice System and its delinquency in India, LEGAL SERVICES INDIA (Aug. 20, 2017, 3:41 P.M.), http://www.legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-.1.html.

[34] AIR 1986 SC 1733.

[35] AIR1987 SC 656.

[36] (1999) 6 SCC 591.

[37] AIR 199 SC 1412.

[38] S. 9 (Proviso), Juvenile Justice (Care and Protection), Act 2000.

[39]Juvenile offenders and Victims (2006), National Report (Aug. 14, 2017, 11:25 A.M.), http://ojjdp.ncjrs.gov/ojstatbb/ nr2006/downloads/NR2006.pdf.

[40] S. 12 (2), Juvenile Justice (Care and Protection), Act 2000.

[41] Law Commission of India Report (Aug., 1997).

[42] S. 63(2), Juvenile Justice (Care and Protection), Act 2000.

[43] Supra 39.

[44] B. Savita, Children in India and their rights, VALLEY INTERNATIONAL JOURNALS (Aug. 4, 2017, 2:40 P.M.), https://valleyinternational.net/thijsshi/v3-i2/11%20theijsshi.pdf, last seen on 14/03/2017.

[45] S. CHANDANA, JUVENILE DELINQUENCY IN INDIA: AN ETIOLOGICAL ANALYSIS, (1st Ed., 1987).

[46] Butts, Bazemore, & Meroe, 2010.

[47] Loeber, Farrington, & Petechuk, 2003.

[48] Dr. R. Tripathi, Juvenile Delinquency: Overview, Prevention and Laws In India, 3 the International Journal of Social Sciences and Humanities Invention 1899-1903, 1901 (2016).

[49] Ibid.

[50] Supra 22, at 132.

 

Mediation: Restoring the imbalance of power in cases of Domestic Violence

Preethi Kavilikatta, Final Year Student of  Year LL.B, Symbiosis Law School, Pune

Abstract

In every case of domestic violence there are two over riding interests which should be guarded carefully- protecting the victim from further abuse and empowering the victim to take back control over her life[1]. Those opposed to Mediation, where domestic violence is present, argue that mediation legitimizes violence rather than punishing abusers, places the victim at risk for further abuse and results in unfair agreement; since the imbalance of power between the male and the female spouse is palpable in such cases.

However, commentators who support Mediation in cases involving domestic violence argue that mediation can be used in responding to domestic violence, where the traditional court system has failed in responding to domestic violence; mediation empowers participants to end violence within their relationship by serving as a model of conflict resolution; and allows them to create guidelines to govern future interaction[2].

To elaborate further on the supporting view, this commentary is an attempt to examine how Mediation in cases of domestic violence restores the imbalance of power present in such disputes. It strongly supports the idea that Mediation is a tool that empowers the female spouse in such a situation.

Introduction

It is a fact well known that in cases of matrimonial disputes; women are often the victims of humiliation, false allegations and isolation. The social stigma around such cases still persists in the Indian society- compelling the woman to believe that any rift/disagreement is a consequence of her inability to safeguard her marriage. Since matrimonial disputes are perceived as war, the parties are under pressure to prove to the Court that the other party is responsible for such breakdown and it cannot be attributed to them in the slightest of manner. Unfortunately, in most cases, the effect of such an approach is a tormenting experience for the female spouse- making her feel powerless.

 

It is said that there is always some ‘power disparity’ in the resolution of matrimonial disputes. That is to say, in most cases, the male spouse is said to have an upper hand over the female spouse. A well-known mediator once defined power as “control of, or access to emotional, economic and physical resources desired by the other person.” Such control has a lot to do with the family set-up in India, where the male spouse is regarded the head of the house and the female spouse a homemaker. The male spouse has the highest decision-making power, with control over money, assets and other household matters. Such polarised positions place the female spouse at the receiving end, giving the male spouse more power.

Furthermore, this divide widens when the matter reaches the courts, since the parties are placed in opposing positions. Our adversarial court system perpetuates rivalry which in turn proves to be of disadvantage to the female spouse at the receiving end. Other factors that that influence power-balance are: education, professional status, self-esteem, sense of guilt, victimization, attitudes of entitlement and obligation.

Many feminists believe that the female spouse in a traditional couple has less power than the male spouse. However, the question that needs to be examined is whether the power remains unchanged in a mediation process.

Mediation and imbalance of power:

Most commonly accepted definition of Mediation by Folberg and Taylor (1984) stressed that mediation is a ‘self- empowering process.’Mediation is a voluntary process, in which the neutral third party assists the parties in dispute to resolve their matters creatively[3]. The Mediator uses specialised communication skills and negotiation techniques to facilitate disputing parties, bridge their differences and find their own mutually acceptable solution.

Since it is a voluntary, flexible and party-driven process; it helps the female-spouse to exert control in cases of Matrimonial Disputes in the following manner:

  1. Awareness of power: Mediation as an alternative dispute resolution mechanism makes aware to the female spouse of her power to voluntarily negotiate through a process that gives her an equal opportunity as her male counterpart. She will be placed on an equal footing as the other spouse before an impartial mediator, which will grant her a ‘bargaining position’ to determine what outcomes she desires, and what she doesn’t.
  2. Confidentiality:One of the essential features of the mediation process being confidentiality, the processoperates in an atmosphere of freedom and openness, eliminating fear in the mind of the female spouse. Confidentiality empowers her with fearless communication since nothing can be subsequently disclosed to the Court; disallowing the male spouse to turn the tables against her or take undue advantage of the situation.
  3. Privacy: Typically, the court proceedings in India are public in nature. All communications, pleadings and submissions are done in public. The adversarial nature of our court system brings in a sense of rivalry among the parties in dispute- which encourages the use of malicious tactics to negate the claims sought. This often proves to be of detriment to the female spouse, who is constantly subjected to baseless allegations on her character, ability and credibility. Such a lack of privacy for the fear of humiliation often places the female spouse in a lower pedestal. A situation as this can be avoided through mediation, which is conducted in a private setting.Such a setting could be of advantage to her, since access by a third party is limited in the light of her interests.
  4. Impartial Mediator: Mediation process is assisted by an impartial mediator to whom the parties submit their grievances and creatively resolve their disputes. The mediator is an impartial third party who plays a key role in maintaining the balance of power in matrimonial disputes. The mediator by deciding who may speak at what time, allowing and timing party’s response, presenting an interpretation of what the spouse has to say; keeps things in check as opposed to a Judge in conventional litigation who doesn’t perform such a function. The mediator uses multiple techniques to strike the balance.
  5. Catering to the emotional needs of the female spouse: The ‘human element’ in matrimonial disputes makes it highly emotional and stressful in nature. This is often overlooked in conventional litigation, since the duty of the Court is to only look into the matter of facts and law.Marriage for a female spouse is of much more emotional value than her male counterpart. The opportunity to communicate her emotional needs to mediator is an effective catharsis to the female spouse, making her mentally stronger for the fact that she is given a voice through the process. This fuels power to her position, as it could be used to address behavioural issues and resolve the matter in hand.
  6. Quick and cost-effective:The longevity of a mediation process is quite short as compared to a to a court proceeding, which is tedious and time-consuming. In cases where the female spouse is desperate to disassociate from the marriage, such a quick process can liberate her from the shackles of the same. Since money is one of the criterion to evaluate power, it puts most women at a disadvantaged position. However, the mediation process is to their advantage a less costly procedure as compared to the money invested in the lengthy and tiresome court proceeding.
  7. Flexibility:The Mediation process is flexible and controlled in which the parties determine the course of the entire process. It can be conducted at any stage of a dispute. In a mediation process, convenience of the female spouse is taken into consideration. Friends and family members are allowed to the mediation sessions for support. The mediation session can also be terminated by the female spouse as per her discretion. Since the process is party-driven, it allows the female spouse to be at the helm of the process.
  8. Settlement:One of the unique features of Mediation as a dispute resolution process is the ability to create tailor-made settlements. The parties to this process can through dialogue create their own agreements in conformity with law and resolve the matter at hand. Unlike the dictum of the Court, which is an exercised discretion of a Judge, Mediation provides an opportunity to the female spouse to get the outcome she desires.
  9. Finality: The settlement can begiven finality and made enforceable by acquiring a court mandate. The female spouse doesn’t have to worry about being cheated by the male spouse after they have come to an agreement. If at all such a situation arises, the male spouse will be subject to action by the Court of Law.

How the Courts have encouraged Mediation in cases of Domestic Violence:

In the case of Smt. Padmavathi vs. Sri M. Suresh Ballal[4] it was emphasized that “Matrimonial issues must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal rights have to be handled carefully.”

Justice Katju opined that “the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships like family relationships, business relationships are involved[5].”

A formal recognition to ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters has been given by the Supreme Court in the case of K.Srinivas Rao v. D. A Deepa[6]. The Court mentioned that “In matrimonial disputes there is hardly any case where one spouse is entirely at fault. Before the dispute assumes alarming proportions, someone must make efforts to make parties see reason.”

The Supreme Court, in this matter, touched upon mediation in cases of domestic violence and opined that although it is a criminal offence, where it appears to the criminal court that there existelements of settlement; the parties should be directed to explore the possibility of settlement through mediation. The Court emphasized that this attempt is not to dilute the rigour, efficacy and purport of the Indian Penal Code, but to locate cases where the matrimonial dispute can be nipped in the bud in an equitable manner.

In the case of Jaya Sagade v. State of Maharashtra[7], a circular issued by the State of Maharashtra dated 24th July, 2014 was challenged. The circular prevented parties to a domestic dispute to resort to counselling/mediation before approaching the Court. The Court quashed the circular on the grounds of it being discriminatory, arbitrary and unreasonable.

It was declared that any woman who has suffered any form of domestic violence as defined in Domestic Violence Act, and who accessed the services of any service provider provided thereunder including NGOs, counsellors or the Police may be counselled with regard to the course of action which she can take including joint counselling/mediation with her spouse/husband or her family members/in-laws subject to the following directions:

  • That a violated woman must be informed of her right to choose of a future course of action.
  • That there shall be no pressure upon her to settle her claim or grievance. The joint counselling/mediation shall be commenced only upon voluntary, informed consent of the aggrieved woman.
  • That the service providers, including the Police, NGOs and counsellors shall prominently display in their office the fact that the aggrieved woman who has accessed their service shall have the choice of future course of action and that any joint counselling/ mediation with her spouse/husband or her family-members/in-laws shall only be done with her consent.
  • That no joint session/Mediation shall be undertaken in a case of serious physical domestic.
  • That upon the parties entering into a settlement an “Assurance Paper” or “Terms of Settlement” may be entered into and executed by the Parties.

Conclusion

Ann Yellot, an experienced mediator expressed her opinion that one should not deny these women of an opportunity to participate in a process which can empower them to reclaim what they have lost. She writes, “When women express desire to meet with her abusive partner… it seems disempowering to categorically refuse to afford them that option under the guise of protecting them.[8]

Hence, Mediation, can be considered suitable for cases of domestic abuse for the following reasons[9]:

  1. Mediation focuses on the future than on past behaviour, which could empower couples to take responsibility for their past and rise above it by setting boundaries for future behaviours
  2. The Mediator can customize the process to serve the best interests of the parties.
  3. Mediation can provide for positive interaction among the disputing parties. This in turn, can also serve as a model for effective communication and bring in changes to the behavioural pattern which in turn decreases the risk of future violence.
  4. Mediation can provide a supportive, empowering environment for women who in many cases have been stripped of their identity, dignity and self-esteem.

[1]Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

[2] ibid

[3]The Centre for Advanced Mediation Practice, Understanding Mediation: What is Mediation?, Campmediation, (December 30,2016, 9.00 p.m), http://campmediation.in/understanding-mediation

[4] ILR 2012 KAR 3926

[5] B.S Krishnamurthy vs. B.S Nagaraj, AIR 2011 SC 794

[6] (2013) 5 SCC 226

[7]2015 (5) Bom CR 633

[8] Ann W Yellot, Mediation and Domestic Violence: A Call for Collaboration, Q. 39, 45 (1990)

[9]Supra, Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

Competition Law – IPR Interface: Impact on Innovation

Author: Vishvendra Tomar ((Law Student, Amity Law School-I, Noida)).

Competition Law and IPR Interface debate is a longstanding one. While they share common goals of promoting efficiency there are sometimes issues in the ways of achieving it. The growing tension between this interface has impacted innovation, as its evident from some recent compulsory licensing cases, which triggered an all-round debate whether the competition agencies should intervene in matters of intellectual property, and if yes, on what “theory of harm”? This article would deal with some of such debates and cases.

Interface between Competition Law & Intellectual Property Rights – The Impact on Innovation

The objectives of intellectual property laws and competition law are common in so far as both the sets of laws are meant to promote innovation, creativity and a better market for consumers. However, on a closer analysis, there appears to be a growing tension between the institutional principles of these laws. The conflict seems to arise from the fact that intellectual property laws focus on individual interest while competition law focuses on promoting collective interest through increasing competition.

Notwithstanding the conflict, there has been a recent shift towards viewing intellectual property rights and competition law as complimentary to each other. The Fair Trade commission in its report noted that patents do no easily confer monopoly power on their holders, and additionally that, even where a patent confers a monopoly power that alone does not create a competition law violation.

The European Courts have taken this apparent conflict into account and various methods of harmonization have been attempted. The European Court of Justice developed the doctrine of ‘Exhaustion of Rights’. Also, the adoption of the ‘Community Trade Mark Regulation’ is a step towards this harmonization process so as to reduce this conflict.

The tussle between the two fields of law is on several fronts. FRAND rules, length of licensing agreement, reverse licensing, patent pooling are some of the issues on which the two laws seem to be pitted against each other. The question is where to draw the line between intellectual right and market fairness. A patent holder is free to license out its patent to a person of its choice, but is that freedom absolute? Can we neglect the antitrust applications of such license? And if we can’t, then to what extent can we examine such exercise of intellectual right? Moreover, there is the perplexing question of duration of a license.

In Hartford-Empire Co. v. United States, ((65 U.S.P.Q. 1 (1945).))the Supreme Court of United States accepted that a patent owner is not obligated to ensure accessibility of the patent to general public but it ought to grant it on ‘uniform reasonable royalties’. The suppression of technology plainly has been a target of the antitrust laws in a variety of contexts and, in certain circumstances, those laws have been used to suggest significant limits on the right of an intellectual property owner unilaterally to refuse to license or to sell to a competitor ((Image Technical Services., Inc. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir.1997).)). The ECJ ruled that the freedom to refuse to license an Intellectual Property right was the exclusive right of the patent holder and refusal to license, in itself, is not abusive. However, the ECJ further clarified that such refusal has to pass the test of its effect on the competition. Similarly, several other judgements of first instance courts may be found on refusal to license vis-à-vis intellectual property ((Bellsouth Advertising v. Donnelley, 719 F. Supp. 1551 (S.D. Fla. 1988); See also Intergraph Corporation v. Intel, 195 F.3d 1346 (Fed. Cir. 1999).)).

In the Maize Seed Case, ((Nungesser v. Commissioner, [1983] 1 CMLR 278.))the Court of Justice differentiated between an open exclusive license and an exclusive license. The Court opined that such open exclusive judgements did not necessarily infringe Article 101(1) of the TFEU. Again, in Coditel v. Cine Vig Films, ((Coditel v. Cine Vog Films, [1983] 1 CMLR 49.))the Court opined in the same year that in cases of copyright, a licensee may require absolute territorial protection and it will not amount to a violation of copyright laws. Similarly, the Courts all around the world are divided on the opinion of handling FRAND patents ((Huawei Technologies Co Ltd v ZTE Corp., Case C- 170/13.)). All around the world, the question of grant of license has perplexed the competition authorities. The meaning of word ‘essential’ remained a puzzle. Does ‘essential’ mean technically irreplaceable or merely unaffordable; and if the latter, what, if anything, should turn on whether the denied party is a large or small player, or what its chances might be out of surviving in the market even with a license ((IAN EAGLES & LOUISE LONGDIN, REFUSALS TO LICENSE INTELLECTUAL PROPERTY – TESTING OF THE LIMITS OF LAW AND ECONOMICS 105 (2011).))?

Indian competition Law, like other jurisdictions, has provided an exception to agreement pursuant to an intellectual property. Though competition watchdogs across the world have normally refused to entangle with intellectual rights, they have been scrutinising possible anti-competitive behaviour relating to access to technology, which has received little attention until recently and is of crucial importance for developing countries.

So far, the Indian Competition Authorities has not faced significant litigation in the puzzling area. Earlier the courts had set the position that Competition Commission of India has no jurisdiction over Intellectual Property Cases. However, limited jurisdiction was granted pursuant to possible antitrust violations ((Amir Khan Productions Private Limited v. Union of India, W/P(C) no. 358 OF 2010; See also Kingfisher v. Competition Commission of India, W/P(C) no. 1785 of 2009.)), but confusion persisted on the ground as to where to draw the line between Intellectual Property Rights and Antitrust Violation. The case of grant of SEP’s by Ericson ((M/s Best IT World (India) Private Limited (iBall) v. M/s Telefonaktiebolaget L M Ericsson (Publ), Case No. 04 of 2015.)), is a case in point. India is yet to witness a major battle between Intellectual Property Rights and Competition Laws, though Indian position has invited much discussion and debate in developed jurisdictions on enforcement and protection of IP rights in India, including criticism for its policy regarding intellectual property rights, its decisions in the matters of compulsory licensing, ever-greening, and its approach towards saving the interests of patent holder’s vis-à-vis the competition law enforcement. Any step taken by the competition watchdog may be perceived to further dilute the rights of an intellectual property holder, and invite criticism. Thus, we must identify the possibility of carving a middle ground between the two laws which look conflicting but can be complimentary.

Sedition laws in 21st century India

A SHOWPIECE OF COLONIAL HANGOVER?

Jyotsna Gabriel & Kush Agarwal ((Students of 2ndYear B.A, LL.B, School of Law – Christ University)).

‘AUTONOMY IS AS AUTONOMY DOES’

An analysis into the draconian law paving its journey all the way from the colonial era making such act punishable with imprisonment for life. Government today does not recognize the fact that sedition laws today are not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy. What is more, it seeks to negate the very idea of universities, where freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy. An effort is made by the authors to analyze the present law of Sedition in India vis-a -vis its clash with freedom of speech and expression.

Every man has a right to be heard; But no man has the right to strangle democracy with a single set of vocal chords.

– Adlai Stevenson

INTRODUCTION

The only factor that distinguishes a life of a free man or women from that of a slave is FREEDOM – Freedom to speak, to express ((What is the true meaning of freedom according to you? ,Saurabh Jain , available at https://www.quora.com/What-is-the-true-meaning-of-freedom-according-to-you  last seen at 20/10/2016)). Freedom is not just the lack of restrictions but also the ability to stand alone, unsustained by anything else, where the words come out from the depth of truth and fearful authorities do not impediment this flow. But unfortunately India never got over her colonial masters. We continue where British left. Ever since Thomas Babington Macaulay drafted ‘crime’ of ‘sedition’ (Section 124A) as Section 113 in IPC draft of 1837 originally to deal with “increasing Wahabi activities that posed a challenge to the colonial government”, it has continued to be a constant threat to free speech. The Sedition Laws of the country thus speaks of a bitter truth:

“Whoever…brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment for life…or with imprisonment which may extend to 3 years” besides fine.

In the beginning, Section 124A criminalized excitement of “DISAFFECTION” only, but in 1898, “HATERED /CONTEMPT” was added as an amendment. The word ‘Queen’ which was further replaced by ‘Government’  in this law labels a person as criminal if he hates ‘State’ or develops contempt, enmity or any form of ill- will for it. This was initially used during the British regime against the rebels and aftermath used as a weapon against criticism to suppress the expression. Mahatma Gandhi himself was prescient in recognizing the fundamental threat it posed to democracy when he called it ‘the prince among the political sections of the Indian Penal Code’ designed to suppress the liberty of the citizen ((Noorani, A.G. Indian Political Trails. New Delhi: OUP. 2009, p.235)). Not just sedition but blasphemy laws are also becomes an hindrance to free speech to which Pakistan is in forefront by the virtue of being an Islamic state but India shouldn’t have place for such black laws because she is world’s largest democracy with lengthiest written constitution! These laws thereby prevents dissent hence should be subjected to strong amendments.

UNCONSTITUTIONAL CRIME

History of ‘sedition’ states that many of the freedom fighters were victims of this law straight from Bal Gangadhar Tilak, who was tried thrice for Sedition and his further imprisonment to Mandalay jail to nationalists like Annie Besant and Mahatma Gandhi tried at the time of Independence. Britisher’s used sedition laws to quell the Indian freedom struggle and retain its imperial power.

After the establishment of High Courts and the advent of Constitution, many High Courts were in favor of striking down Section 124A as being void. Justice Patanjali Sastry pointed out the deletion of Sedition as being deliberate as laid in Romesh Thapar vs. State of Madras ((AIR 1950 SC 124)).

Some High Courts in the late 1950’s declared Section 124A as being voilative of Article 19(1)(a) . One such decision being In Ram Nandan vs. State ((AIR 1959 SC 101))a full bench in the Allahabad High Court held sedition to be void and unconstitutional restricting freedom of speech declaring it ultra vires. However, the decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court overruling its decision and validity in the case ofKedar Nath Singh v. State of Biharconsidering the scope of subversive speech and thus holding it intra vires. This decision laid down the law of sedition of what it is interpreted today.

In this decision 5 appeals were clubbed together to discuss the constitutionality. Further the change which was brought in Kedar Nath vs. State of Bihar((AIR 1962 SC 955))was put to test on the touchstone of Article 19 in the case of Tara Singh Gopichand vs. State ((AIR 1951 East Punjab 27))before the Punjab and Haryana High Court where it was struck down as being contrary to freedom of speech and expression. In Balwant Singh vs. State Of Punjab ((1995 (1) SCR 411))the court was of an opinion that mere raising of slogans and absence of valid proof in other persons joining former in raising those slogans will not amount to sedition. It laid down guidelines as to how police should conduct itself in situations like these and use of excessive force can be counter-productive.

The case of Meerut conspiracy in which the accused were charged with conspiracy to wage a war for having formed a union on the lines of trade unions of soviet Russia which led their conviction in sessions court which further the Allahabad court held that unless it’s a conspiracy to overawe the government using means of criminal force, such act will be considered wrong.

Of these instances, it is wrong to say that sedition shouldn’t be a law at all, in fact, in order to prevent the abuse of democracy and its attributes, there should be a license to the same, but this in no way should mean that it curtails the Fundamental Right in itself…after all we are the citizens of the country and not the citizens of the government! Instances of the same can be found when recently in the news an image where instead of  three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out the blood , and altered “Satyameva Jayate” (Truth alone Triumphs) into “Bhrashtameva Jayathe” (Corruption alone Triumphs) ((India Today, Anti Corruption cartoonist Aseem Trivedi arrested on sedition charges, September 9, 2012 available at http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.htm last seen at 22/10/2016)).The question here which comes to the mind is – Is it actually seditious? Is it actually an insult to the National symbol?  If it is actually considered seditious every person who is charged with corruption too shall be sent to jail. Drawing of a cartoon or writing an article relating to whatever serious meaning it may communicate shouldn’t be considered ‘seditious’. Trivedi only expressed his mind set of an agitated India considerate about his country, where the politicians and the bureaucrats have turned National symbols into symbols of Danger, nothing more nor less! However his arrest has been heavily criticized in India terming it as ‘stupid move’. Back to the philosophy classes, one can actually relate the issue of free speech and sedition to Roscoe Pound’s Theory of Social Engineering, in a way that Free speech and Sedition have conflicting interests much like Section 499 of IPC and Article 19(1)(a) of the Indian Constitution. Article 19 of the Constitution gives every citizen six fundamental freedoms and one of them happens to be of ‘free speech and expression’. These rights are subjected to reasonable restrictions in public interests under vague and ever inclusive ambits of public order, morality, public health, national security, etc. We believe that Laws should aim at reconciliation of conflicting interests in the society but looking at the flipside to it , sedition laws have been time and again misused for political mileage. Anyone who dares to question the actions of his political masters is instantly labeled as anti-national and is slapped with sedition charges against him.

Free speech is the backbone of any democracy and such reckless and impulsive behavior by authorities is not only uncalled for but hinders free thinking and exchange of ideas. Sedition has been a lethal tool of right wingers to suppress left wing dialogs and how can one expect winds of change if the vocal cords are strangled with wires of sedition?  This is not just miscarriage of justice but death of democracy by grossly violating human rights…! On one hand ,  we claim to be the most tolerant and diversified nation and on the other  we declare our own citizen as anti-nationals when he talks about his wife pondering to leave the country in a press conference negating and neglecting his endeavors towards bringing national awareness through his sitcom. A government which cannot be tolerant to ideas and opinions of its own people is a stigma on the face of ‘effective governance’ and puts democracy in a vegetative state or on ventilation or life support. It’s like polity playing “Big Brother” from Orwell’s much celebrated “1984” where every idea, opinion, action or emotion against the villainous Big Brother was condemned and punished much like modern North Korea. There, thus, goes a cycle which facilitates change in any state and the cycle is of thesis, anti-thesis and synthesis. Cycle kicks off with an idea which is thesis and opposition to that idea is its anti thesis leading to violence. The tussle between both gives one suo motu synthesis which is a new idea all together and that becomes instrument of change ….but unfortunately every anti-thesis is adjudged in the light of sedition or “Deshdroh”. Hobbes in his book “Leviathan” talked about an imaginary sea monster that was responsible to protect the rights of its citizen in exchange of consensus from citizenry. In this case the polity plays the role sea monster using sedition laws to oppress dissenters.

It is the fundamental duty of every government irrespective of its form to respect the rights of life, liberty and property of its citizens and it would a cardinal sin on its part failing to do so. Law of sedition is a blunt sword and can be used in multiple ways but it is rather unfortunate to witness execution of opinions on the blade point of this sword. One cannot do much about sedition as a law because it derives its authority from the Constitution which in turn derives authority from us, the People of India. We the people of India are ‘Grundnorm’ for every law that is operative in Indian domain including sedition. This law in question which should be largely apolitical has become a subject of vote bank politics. Advocates who referred to Bruhan Whani’s killing as Army Excessive were also called names like anti-nationals and pseudo liberals and the very act of filing a petition in the Apex court of the land was termed seditious which is a constitutional right.

Instances like: Amnesty International being charged with sedition for organizing a debate on Kashmir issues. A folk singer in Tamil Nadu being charged with sedition for singing songs mocking laws in Tamil Nadu relating to Liquor. 3000 people collectively being charged for sedition for protesting against a power plant. In UP Seema Azad and her husband and two people from the Union of Civil Liberties being arrested and being slammed with sedition. Separatist elements in Jammu and Kashmir and media houses giving platform to them have often been accused of sedition. A  PIL was filed by Common Cause, an NGO to repeal sedition laws where Supreme Court in response to the petition stated that criticizing or defaming Government or state’s instrumentality will not fall within the ambit of Section 124-A of the Indian Penal Code. The most trusted test to ascertain if the act was seditious or not is by judging if it was capable enough of inciting violence which in itself is vague because it depends on the sentiments and fundamentalism of people which is very objective in nature.

Discussion on the lines of any public policy is not termed as sedition but words like ‘ disaffection’, ‘ enmity’, ‘ disloyalty’, in the bare provision has been time and again criticized by legal scholars and is in dire need for explanation to provide clarity. Charge of sedition is a cognizable offence and police might not have proper training to label an act of being seditious or not.

Crimes Record National Bureau has no separate head of sedition which would inform one about the number of sedition cases filed in each state each year. Anti-sedition advocates believe that the state is not misusing sedition law but using the way it is meant to be used that is to suppress any form of dissent or neutralize any threat in the myth of national security. Reading banned literature has also lead to sedition charges. Should sedition be removed from Indian Jurisprudence? Still remains a topic for hot debate. Law in itself is still Victorian – A still showpiece of Colonial Hangover where the parent Nation has already repealed it. Pro-sedition  activists believe that sedition laws act as sword of Hercules hanging on the necks of persons conspiring evil designs against the state and fourth generation warfare is much more lethal and dangerous than an invading army because enemy is invisible and is one amongst the people. Naxalism is an offshoot or evil child of sedition.

SECTION 124A BEING AN OBSOLETE CRIME INTERNATIONALLY

Various countries have repealed laws of Sedition:

1.The United States repealed sedition act of 1918 thereby reducing the Smith Act 1940 into a dead letter followed by the directions given by the Supreme Court,  bringing forth the First amendment of Constitution of United States of America which is on freedom to speech is strong enough to give legal immunity to Presidential candidates against communal hate speeches. Canada is a representative democracy and no sedition case had been reported in the last five to six decades.

These countries only charge individuals on the lines of sedition in the ‘Rarest of the rare’ cases thereby supporting free speech and think tanks.

  1. Ever since England decriminalized Sedition in 2009, debates arise weather India in 21st Century especially after Kedar Nath case is rarely applied in spirit. Human Rights activists have called this as a BLOT on Indian Democracy ((Journey of Sedition, Karan Shah)). Recently UK abolished offences of sedition and seditious libel. No doubt the Sections in IPC that deal with ‘conspiracy to wage a war against government and sedition are draconian. It is most unfortunate that sedition was not removed as a crime from the IPC but was just deleted as a ground for restriction on the free speech.
  2. The whole law pertaining to sedition was repealed in New Zealand under the Crimes (Repeal of Seditious Offences) Amendment Act 2007 thereby removing the crime of Sedition altogether from the statue book of New Zealand.
  3. Sedition has been declared ‘unconstitutional’ in Indonesia, following in the footsteps of their Dutch Colonial Masters.
  4. The Republic of South Korea did away with its Sedition laws during democratic and legal reforms in the year 1988.

CONCLUSION

Today nationalism is decided by whether one can say “Bharat Mata Ki Jai” or not. Our Constitution gives people the right to say it as well as not to say it. People should have the right to choose whatever they believe is correct or not and that’s democracy. India needs a ‘Kaniya’ as much as it needs a ‘Krishna’. Until the time sedition remains, the Indian Penal Code will never be an Indian Code but will continue to be British Penal code. If inspiration is drawn from England in every aspect, why not make the law obsolete as done by England itself? There was a time when being charged under sedition in pre independent India was considered to be an honor because accused joined the ranks of Bhagat Singh and MK Gandhi but today Humanitarians like Binayak Sen with national and International support and Arundati Roy who is known to have controversial views against the state are being framed for sedition.  Hence as Law Commission Chairman Justice BS Chauhan rightly says there is a need to revise sedition laws as it was drafted more than 150 years ago to the changing needs of society. Time has come where we take appropriate measures and try to amend this tool which hinders the successive ‘democratic’ political government. International Covenants like Article 19 of United Nations Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR , 1966 talk about upholding freedom of speech and expression. Sedition has become a weapon to neutralize all opinions against the ruling party and tremendous rise in the number of cases filed in the name of sedition bears a testimony to the fact. Article 19 clause a of the Constitution Of India is a fundamental right and threshold of restricting it under Article 19 clause a sub-clause 2 is rather high. Sedition is the gravest offence one can commit when it comes to the violation of Article 19. Media which is the ‘Fourth pillar of democracy’ have time and again branded persons accused of sedition as seditious and anti-national when the matter has been pending in the court of law and such labelling has a strong bearing in the minds of the masses and the judge. All said and done one cannot undermine and underestimate the importance of sedition as a law because India has had social movements which were seditious in character and took an ugly turn later. Modern Indian state which had transformed from a military or police state to a welfare state is exactly doing what her British predecessors did and that is manipulating legal machinery to crush dissenters and thus law of sedition should be amended at once. Nationalism shouldn’t be used as an excuse to facilitate litigation on the grounds of sedition. Its time Section 124A is sent to where it belongs- to the scrapheap of repealed laws. It is on the readers to decide how far the current law is just and as natural law school advocates believe and so does the author that: Lex ininusta non est lex.

“Your freedom ends where my nose begins but one should not have a Pinocchio’s nose.”

 

Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.

The Rights, Reservations and Development of the SC’s & ST’s

Shruti Sharma ((Student of II Year B.A. LL.B. (Hons.), Semester IV, Symbiosis Law School, Pune)).

Abstract

On the 26th day of January, 1950, the people of India gave to themselves their Constitution which ensured to them Justice, Liberty, Equity and Fraternity. Under part III of the Indian Constitution, the fundamental rights became a necessary consequence of the declaration of the Preamble ((Preamble of the Constitution: A mirror to Society, http://www.importantindia.com/1990/importance-of-preamble-in-indian-constitution/ (last visited: May 04, 2016).))focusing on upholding the dignity of life and the basics for which the human life stands.

Since before independence, the Scheduled Caste have faced caste hierarchy and the age long suppression by the higher caste thus becoming a part of the depressed sections of the Hindus. The social injustice and stigma thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition. Furthermore the Scheduled Tribe constitutes a total of 7.5 per cent of India’s total population. For the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.

Through the means of this paper the researcher has studied in depth the problems faced by present day SC’s and ST’s while focusing majorly on the change in culture, lifestyle and traditional practices along with the development and appropriation of rights and reservations to alleviate  their hereditarily backward position in society.

During the course of the paper, the researcher traces the history of their existence with respect to the special rights and privileges awarded to them along with the report by the Mandal Commission and its application in the globalized world. While directing the impact of globalization and the development of nongovernmental institutions towards the betterments of conditions of the SC’s and ST’s in the present day scenario.

Introduction

I don’t go by my caste, creed or religion. My works speak for me – Shashi Tharoor

The caste system prevalent in the Indian society has its roots deep in the history of our nation. The age old caste system that divided the teachers and the preachers, the kings and the worriers, the merchant and the trader and the servant from the master still show their reflection in the modern times. Today the Indian republic stands divided largely on the basis of religion and further on caste into Hindu and Muslim, Scheduled Caste, Scheduled Tribe and Other Backward Classes.

The six decades of independence has changes the face of the ancient caste system giving rise to the present scenario where the Constitution provides the Right to Equality covered under the ambit of part III and works on the motives, objectives and nature of the Fundamental rights. It comprises of Article 14 to 18, of which Article 14 is the most important one. Equality is one of the magnificent corner-stone of Indian democracy ((Thommen J., Indra Sawhney v. Union of India, AIR 1993 SC 477)). The under laying object of Article 14 is to provide equality of position and opportunity to all persons, whether citizen of India or otherwise. Article 15 prohibits discrimination on the basis of cast, sex, creed, religion or place of birth. Further Article 16 guarantees to the citizen of India equality of opportunity in matters of public employment. Article 17 abolishes untouchability and 18 abolishes titles other than those awarded for rendering services to the nation [military or academician] ((Part III, Constitution of India)).

The subsequent question arising now is whether the rights coffered to individual under the Right to Equality is absolute and same for all individuals. The Supreme Court addressed this issue in the case of M.G. Badappanavar v. State of Karnataka, ((AIR 2001 SC 260))where it declared that “Equality is the basic feature of the Constitution of India and any treatment of equals unequally or unequal’s equally will be a violation of the basic structure of the Constitution of India.”

A clearer classification and differentiation between the largely mistaken divisions is explained as under:

Scheduled Caste

The Scheduled Caste (herewith referred to as SC’s) have not technically been a racial, lingual or religious minority. They have been a part of the Hindu sect, usually referred to as untouchable or Harijans. ((Dalit, Harijans and Untouchables, http://mb-soft.com/believe/txo/untoucha.html (last visited: May 12, 2016).))They involved themselves in dirty jobs bestowed upon them by the caste hierarchy, and due to their age long suppression by the higher caste they have become a part of the depressed sections of the Hindus. Their social incapacity and inability thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition.

Scheduled Tribe

The Scheduled Tribe (herewith referred to as ST’s) have also been referred to as aborigines, are those sections of our society who continue to follow their native traditions and customs. They observe and continue to follow their tribal way and self-made cultural norms. The basic characterization of these people is (i) their primitive way of living and nomadic habits; (ii) love for drink and dance and (iii) habitation in remote and inaccessible area ((First Report for the Commission for Scheduled Caste and Scheduled Tribe, 3, 11(1952).)).

Today they constitute a total of 7.5 per cent of India’s total population and for the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.

Analysis

The SC’s and the ST’s have been those parts of the Indian society that have, over time been unable to cope with the changes and modernization of the societal order. Some have been crippled by the pressure of the general hierarchy of the Indian society while others still continue to follow their traditional customs with little changes from ancient time. On one hand, while the government continues to play its role in their development by the means of reservation, they limit the purpose of classification of the reasonability of reservation and the provisions following the principle of ‘Doctrine of Reasonable Classification’ ((The doctrine of reasonable classification states that there should be a nexus between the basis of classification and object of law and it should be based on the principle of intelligible differentia)).

Six decades and the exposure of India to the new socio-cultural and economic frontiers have resulted in the fusion of the old and historic customs and practices with the new and emerging prospects for the future. Through the course of this paper, the researcher shall study each of the above mentioned situations and provide an analysis on the effects and repercussions of adopting different policies.

2.1 Impact of globalization on SC’s & ST’s

Globalization in its very basic sense is the opening of local and jingoistic perspective to a broader outlook of an interconnected and interdependent world with free transfer of capital, goods, and services across national frontiers. ((The Business Dictionary, http://www.businessdictionary.com/definition/globalization.html (last visited on May 14, 2016).))In the words of Robert Samuelson “Globalisation is a double–edged sword. It is a controversial process that assaults national sovereignty, erodes local culture and tradition and threatens economic and social stability”. Proving the statement right, globalization has not been a welcome change in the developing countries for the fear of submission of the economy at the hand of multinational giants.

In the Indian scenario, where tribes continue to populate the mineral and natural resource rich areas of the expanse of the country, a major threat hangs in the balance as the unprecedented lobbying poses a menace to the alteration of governmental policies in favour of large scale industrial organization. It brings into question the statutes like Forest Act, the Environment protection Act and the Land Acquisition Act as they are jeopardy at the hands of industrial lobbying facing dilution, repealing or amendment. The violation of the Fifth schedule has been an immediate risk to the tribes of India, it violations in  Andhra Pradesh by the means of ignorance of the Land Transfer Regulation Act by giving mining leases in scheduled areas to private companies, shows the relaxation of the governmental agencies in areas of protection of their rights ((B. Ezhilarasu , Impact Of Globalisation on Tribals in India,  Volume : 4 | Issue : 10 | October 2014 | ISSN – 2249-555X (last visited on May 15, 2016).)).

In furtherance to the unjust allocation of tribal land into private hands, the privatization of the profit making Public Sector Undertakings (PSUs) like BALCO ((C. R. L. Narasimhan, The Balco privatisation, The Hindu, Friday, February 23, 2001))has not only resulted in major displacement of the indigenous tribal population from their natural habitat but also the loss of their employment opportunities at the hand of capital incentive private companies has become a big issue. Furthermore the new displacement policies for the growth of infrastructure continue to disturb the natural order of life. As a result the tribal ended up as wrecked remains of the globalised policies unable to access the resources which were their life sustaining forces or to compete with the mainstream society to be absorbed into alternate economies.

In the case of the Scheduled Caste, the evident unavailability of education and employable skills resulted in the gradual fall in employment for the lower caste as they constituted the technologically backward class of the society. With large companies took over the market, the requirement for technically advanced jobs increased thus crippling the poorly skilled backward class. In a position and caste-based hierarchical reviewed social setup where lower societal position and monetary backwardness is by all accounts coterminous, social status assumes a critical part in deciding one’s financial status. Globalization further exasperates this horrible interrelationship amongst social and financial backwardness. The rationale of financial globalization supports the rich, who can contribute and increase capital. The favoured rich are for the most part found among the purported conventional ‘Upper Class’.

2.2 Role of Non-Governmental Agencies in SC and ST welfare

The NGO’s which can also be called ‘Harbingers of Change’ and ‘Partners in development’, play multifarious roles in the upliftment of Scheduled Castes and Scheduled Tribes. The rights and development of the oppressed class have received high attention on International Agenda and find an echo in the UN Charter ((Available at http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes (Last visited: May 14, 2016).))as well as Universal Declaration of Human Rights ((The Universal Declaration of Human Rights, http://www.un.org/en/universal-declaration-human-rights/ (Last visited: May 14, 2016).)). Post-Independence, development of Scheduled Caste and Scheduled Tribes has been a national goal and a special responsibility of both the Centre and State. The Centre has come up with various policies to strengthen their position in the society. On one hand while constitutional provisions have been made to bring them to mainstream society, on the other hand various schemes like Grant in Aid to Voluntary Organizations working for the welfare of Scheduled Tribes ((Schemes for NGO’s working with Tribal’s and Schedule Caste, http://indiamicrofinance.com/schemes-ngos-working-tribals-schedule-castes.html (Last visited: May 14, 2016).))and National Overseas Scholarship for SC’s are examples of Governmental efforts ((Ministry of Social Justice and Empowerment, http://socialjustice.nic.in/schemespro1.php (Last visited: May 14, 2016).)).

But their failure or rather underachievement breeds place for Non-State actors to come in the picture. The failure of Governmental policies has acted as a fertile ground for the NGO’s to take up the responsibility of the socio economic development issues. What is required in the context of Indian situation is the conscientisation of the Tribals about their latent capacities and to motivate them for acquiring a better life. The activities of the NGOs can be broadly summed up as to supplement the effort of the Government in such fields where the government is unable to reach the outreached; to launch a crusade against the policies and actions of the Government which result in injustice and exploitation.

In the age of Liberalisation, Privatisation and Globalisation where the state is withdrawing its authority from many of the development sectors and market is not much willing to share the burden of development, this sector has appeared on the scene as a liberator to protect the society from the onslaught and challenges of consumerism coupled with an urge for an equitable distribution of the fruits of development. They make an honest endeavour to empower the marginalised people in such a way so that they can stand on their own feet with self-reliance and depend less on charity and concessions provided by others.

The NGOs may create awareness among the Tribals by demonstrating the conservation and preservation of the medical plants. They may use the audio-visual aids for creating a lasting impression and campaign for ensuring the promotion of herbal plants in kitchen-garden and nurseries. Sharing of knowledge in workshops is also recommended where both NGO professionals and tribal counterparts would participate. The NGOs should encourage tribal youths to take up the tradition of practitioners of tribal medicine as livelihood option and encourage in research and development of their practice. There is a global dimension of this problem as well. International agencies and multinationals often pirate the age old knowledge of the Tribals for preparing drugs. Documentation of tribal knowledge becomes an urgent necessity in this case. The NGOs coupled with the Gram Panchayat can play a significant role in it. They can prepare a community register where such knowledge can be documented in the local language. They must be legally made aware of their traditional rights and move in the direction of preserving their knowledge under the auspices of Intellectual Property Right. However, there are certain grey areas in the functioning of the NGOs but they cannot be used to overlook the participation and contribution of the organizations like these. It is an undeniable fact that despite certain drawbacks NGO’s have emerged as watchdogs of the rights of depressed class and a “Universal Third Force” which has rendered Governments more accountable and inclined towards the upliftment of the same.

2.3 Women Rights

The discrimination against women runs deep and manifests itself in subtle but far-reaching ways. Today only 10% of our Parliament comprises of women is testimony in itself. If after 60 years of independence, we live in a system where women find it so difficult to get equal chances as men, then its only imaginable how the already downtrodden castes cope up with the misery. These differentiations based on social taboo and the manifestation of a patriarchal society with special inclination towards a male child have left the weaker gender further weakened with special need for protection in general.

On one hand while women face inequality with special protection granted to them under Article 15(4), ((Article 15(4), Part III, The Constitution of India))the Scheduled Caste and Scheduled Tribe women continue to face the inequality within the gender sect. The high rate of daily wage labourers being lower than national average income is a clear depiction of their plight. While SC’s and ST’s continue to sustain with a minimal income of Rs 34 to Rs. 37 as against the national average of Rs. 42, non-ST/SC earn upto Rs. 56 ((Dalit Women’s Access to Land Resources in the Context of Globalization: A Literature Review)). Defying Article 38 (2), ((Supra at note 11, Article 38 (2).))and 39(d), ((Supra at note 11, Article 39 (d).))of the Indian constitution, these statistics prove that the condition of women belonging to ST and SC community have not been improvised under the law.

In addition to the failing application of constitutional right, the justice system further continues on the path of inequality. In a survey of 500 cases it was produced that;

40.4 per cent of the victims did not attempt to attain justice.

26.6 per cent of the women were barred from filing complaints.

Only 1.6 per cent obtained ‘informal justice’.

While only 17.5 per cent of incidents of violence reached the police, but cases were left unaddressed.

13.9 per cent of cases received appropriate police or judicial action.

Only 1 per cent of the cases ended in conviction ((Supra at note 16)).

Though on a statutory front not much has been done in the field of specific women rights for the SC and ST communities, but various initiatives and the government’s attempt to bring inheritance for tribal women under the ambit of the Hindu Succession Act, 1956 has been a triumph ((Dalit women in India, International Dalit Solidarity Network, http://idsn.org/key-issues/dalit-women/dalit-women-in-india/ (Last visited on: May 14, 2016).)).

Conclusion

“We are Indians, Firstly & Lastly”

  • B. R. Ambedkar

For long the Indian society has functioned on the principle of caste and class. The upper class always exploited and squashed the lower cast. The damage done in such process was so deep that people still remain unable to drag themselves out of the vicious circle of poverty and helplessness. The facilitation of reservation for the upliftment of the socially disabled has been a process to bring all the people of the country on an equal level of opportunity and chances. It follows the crucial principle of the Right to equality by treating equals equally and unequal’s unequally and giving a fair chance to the like. In light of the historic character of the position of the ST’s, ST’s and other backward classes the Mandal Commission worked to liberate them.

Mandal Commission, established in 1979, focused on the organization of the population on the basis of social and educational backwardness and recommend steps for the upliftment of the deprived. The report submitted by the commission presented a figure of 54 per cent people of India belonging to backward classes, consisting of 3,743 different casts and communities ((Mandal Commission Report:25 years later, The Indian Express, September 1, 2015, http://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later/ ( last visited: 17 September, 2015).)). The recommendation by the Committee for improving the condition of the backward classes is a follows:

Reservation of 27 per cent for those who do not qualify on the basis of their merit.

Reservation of 27 per cent for promotions at all levels.

Age relaxations

The reservation shall be made applicable to all the public sector undertakings, banks and private undertakings receiving grants from the central and state governments, universities and colleges.

Government should make provisions for the implementation of the same ((Ibid)).

These principles were to apply equally to educational institutions and jobs. The motive behind the provision for reservation was never to provide extra benefits to the individuals; the sole motive behind the provision was to give a push to the socially incapable to make them reach the same level as the rest of the population.

While many continue to argue that reservation as a policy completely violative of the principle of equality as it provides undue benefit to some classes while depriving the other, more deserving people, from the above analysis of the present condition of the SC’s and ST’s it is evident that the policies in favour of them need rigorous implementation. The enactment and implementation of statutes to prevent atrocities against the ST’s and SC’s remain a farfetched idea with the requirement for a procedural law remaining a dire need. A procedure established by law would ensure a better protection on their rights, as was laid down in the case of Maneka Gandhi vs. Union of India ((1978 AIR 597))thus recognizing the delivery of justice to the downtrodden and the aggrieved and insuring the in the dynamic world with fast paced changes justice is reachable to the farthest hand.

 

Dilemmas of Internet age: Privacy and other issues

Yash Midha & Vivek Kumar ((Students of Law, University of Petroleum & Energy Studies)).

Internet Surveillance and Privacy

Abstract

The right to privacy has always been cardinal to democratic social group since its inception. In the time of disorder or turbulence, the urge to strengthen national security is often seen to trump right to privacy if individual.

In the era of technical developments the inherent capacity for surveillance of the average citizen has increased in exponential manner. This paper seeks to review the concept of privacy rights and how these rights have been changed due to occurrence of certain events in the age of internet. This article takes a comprehensive glance at the state of internet privacy in India under Information Technology Act, 2000 and finally, it provides recommendations for enhancement on security while remaining sore to privacy rights.

Introduction

The right to privacy has been fundamental assumption of free and democratic society since its inception. While not explicitly mentioned in US or Indian constitution, several court cases has established and supported that free citizen are provided right against government intrusion into their living.  One finds it difficult to accomplish “Life, Liberty and the pursuit of Happiness without this ((United States Declaration of Independence, available at http://www.archives.gov/exhibits/charters/declaration_transcript.html)). Nonetheless, the right to privacy discovers itself in contrary to another inalienable right: right to security.

Having decided in Naz Foundation v Government of NCT ((Naz Foundation v Government of NCT of Delhi& Ors., 160 (2009) D.L.T.  277)), there originated a feeling that right of privacy of individuals are gaining acknowledgement in Indian legal landscape ((Lawrence Liang, Is the Naz Foundation decision the Roe v. Wade of India? (Kafila Blog, July 6, 2009), http://kafila.org/2009/07/06/is-the-naz-foundation-decision-the-roe-v-wade-of-india/ (last visited Dec. 25, 2015); see also Leonard Link, Indian Court Rules on Colonial-Era Sodomy Law (Leonard Link’s Blog, July 2, 2015), http://newyorklawschool.typepad.com/leonardlink/2009/07/indian-court-rules-on-colonialera-sodomy-law.html (last visited Dec. 25, 2009).)).  The interesting fact about High Court decision reading down Section 377 of Indian Penal Code and decriminalizing Homosexuality was the hesitation of Central government to appeal in Apex Court.

Currently India’s almost comprehensive legal proviso that addresses privacy on internet can be found in IT Act, 2000. A reading of recently amended section 69 and 69B of the Information Technology Act, 2000 ((Information Technology (Amendment) Act, 2008, No. 10 of 2009))expresses that this amendment has vested state functionaries with authority to intercept, monitor and decrypt information ((Section 69, Information Technology (Amendment) Act, 2008, No. 10 of 2009)). This also enables them to block access to website and collect traffic data ((Section 69A, Information Technology (Amendment) Act, 2008, No. 10 of 2009. Even though this section does affect the civil liberties of an individual, it is outside the scope of the present article, as the right being analyzed in this article is the right to privacy and not the right to speech and expression)).

Prior to this amendment of Information Technology Act, there was vacuum in Indian laws regarding interception and monitoring in internet communication. It was executed by the general provisions of Indian Telegraph Act, 1885 ((Indian Telegraph Act, 1885, No. 13 of 1885 (hereinafter ‘telegraph Act’).)).

Provision that clearly protects privacy of individuals includes: penalizing Child pornography ((Section 69, Information Technology (Amendment) Act, 2008, No. 10 of 2009)), fraud and cyberpunk, hacking and data protection for corporate body ((Information Technology (Reasonable security practices and procedures and Sensitive personal data or information) Rules, 2011)).

Online Privacy: Past and Present

Information Assembling

The raising access of internet was lately realized by Indian legislation in 2001. However, regulations regarding privacy were lacking in the statute ((Section 72, Information Technology (Amendment) Act, 2008, No. 10 of 2009)).  The telecommunication interception rules were framed after Supreme Court in PUCL v Union of India ((People’s Union for Civil Liberties v. Union of India, (1997) 1 S.C.C. 301 (India) (concerned the legality of telephone tapping).))ruled out. These rules provided the design for intervention with privacy rights for “violation upon individual’s solitude or seclusion and information collection” These rules are the reflection of rules which has been amended under section 69 and 69B ((Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 (G. S. R. 782(E)) (Oct. 27, 2009).)).

Under section 5(2) of Telegraph Act were the rule for interception of telecommunication. These rules stated that when (i) a public emergency or (ii) public safety state of affair exists, then orders can be granted to issue directions for interception. These rules effectively empower high ranking public officials ((Rule 419-A(1), Indian Telegraph Rules, 1951))to issue instructions regarding interception of messages ((Rule 419-A(3), Indian Telegraph Rules, 1951)).

Various safeguards have been added to augment the section under rule 419-A of Indian Telegraph Rules to provide more specific documental formalities i.e. providing the details and particulars of officer directing the maintenance of records.  Secondly, review committee has been formed up by limited regulatory oversight ((Rule 419-A(8), Indian Telegraph Rules, 1951)).

However, in public cases involving classification of “violation of solitude or informal gathering” the courts apply doctrine developed under Article 14, 19, 21 of the Indian constitution ((T. R. Andhyarujina, The Evolution of the Due Process of Law by the Supreme Court, in Supreme but not Infallible: Essay in honor of the Supreme Court of India 203 (B. N. Kirpal et al. eds., 2004).)). This doctrine empowers judiciary to strike down statutes which are against the connection of legislation; but courts are unwilling to do the same because according to courts ‘right to privacy’ is too broad for interpretation and liberal in nature ((Neera Agarwal v. Mahender Kumar Agarwal, 2009 (5) A.L.T. 518 (India).)). They have been adhering to procedure rather than limiting the substantive power of state. In PUCL v Union of India the Apex court laid down procedural safeguards to check warrantless tapping of telephone as directions ((Supra note 12)). In case challenging constitutional validity of MCOCA proviso regarding telephone tapping the Apex court decided that the provisions contains adequate procedural safeguards ((State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 S.C.C. 5)).

After much of discontents and debate, the Information Technology Act, 2000 was amended in 2008. This amendment was sought to ratify the inefficiency with the application of enactment.  To make this act independent and sufficient with regards to internet behavior ((Information Technology (Amendment) Act, 2008, No. 10 of 2009 (contains 49 numbered paragraphs which contain insertions, substitutions and deletions to several sections of the Information Technology Act, 2000).)), section 69 was introduced by the law makers ((Id)).

Section 69 “Power to issue directions for interception or monitoring or decryption of any information through any computer resource.” this section reflects the section 5(2) of Telegraph Act, 1885 which also contains the same limitations on the powers to issue directions. It contains PUCL ((Supra note 12))alike constitutional limitation. It also includes the requirement of recording reasoning behind issuing the directions and also to remark the 5 classes of event as per section 5(2). There is no doubt that regulation as per section 69(2) for providing procedure also follows Rule 419-A in broad manner. They reflect most of the procedural safeguards.

Amendment of section 66E of the act brought forward the penalization for violation of privacy.  It seeks to apply exclusively to image private area of person and under the situation where privacy has been violated ((Section 66E (1), Information Technology Act, 2000, No. 21 of 2000)).

Information Processing

Section 69B of the Information Technology Act, 2000 titling itself to be concerned the right way with processing the information, is composition between gathering and processing of information.

Section 69B “Power to authorize to monitor or collect traffic data or informing through any computer resource for cyber security.” The aim and scope of this section is better online or internet management by mandating enhance in cyber security. This also prevents and analyzes the violation of computer contaminant.

This section also allows for issuing guidelines for monitoring and collecting information and data produced generated, received, transmitted or stored in any computer or internet source ((Section 69B, Information Technology Act, 2000, No. 21 of 2000)).

A critique of ordinance formed under this section makes it unambiguous and states that harms or losses which will be incurred are in nature of data processing i.e. aggregation and identification ((Rule 3(4), Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009)). This section provides safeguards similar to section 69 of the Act. As a result, the reasoning that has to be recorded is not threshold as established under Section 69 ((Rule 3(2), Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009)). These are the reasons which were pronounced in the PUCL case. Therefore, there lies a debate against constitutional validity of the section as the rules formed under it specifically speculate independent direction to supervise data, which inevitably requires interception.

Information Dissemination

What perplexes the mix of privacy damage is the character of information. Information which lies within the source of privacy differs case to case. It varies to scope of human activities and violation of privacy of individual receives a different class of harm. The law regarding whistle blowing or information disclosure has developed mostly with freedom of press. It has been often argued that disclosure of facts harms and violates privacy of individual in society ((R. Sukanya v. R. Sridhar, A.I.R. 2008 Mad. 244)). These claims are usually looped in with the defamation law, when the person disputes the truthfulness of the information searched to be revealed or disclosed ((Indu Jain v. Forbes Incorporated, IA 12993/2006 in CS(OS) 2172/2006 (High Court of Delhi, 12th October 2007)). There are lawsuits where probe of information for which violation is complaint against developed through a fiduciary relationship. Regardless of their origin, court presumes the sources and contents of the information. For example fiduciary relationships i.e. bank-customer ((Mr. K. J. Doraisamy v. The Assistant General Manager, State Bank of India, (2006) 4 M.L.J. 1877)), doctor-patients ((Mr. ‘X’ v. Hospital ‘Z’, (1998) 8 S.C.C. 296 (India) & (2003) 1 S.C.C. 500))and it also look into contents like failures to pay debts ((Akila Khosla v. Thomas Mathew, 2002 (62) D.R.J. 851 (India).)).

Thus, it is upon the discretion of the court to allow disclosure when it concerns serious infection such as AIDS virus because of which marriage can result in communication of such virus ((Mr. K. J. Doraisamy v. The Assistant General Manager, State Bank of India, (2006) 4 M.L.J. 1877 (India).)). Issues such as legitimacy of child and maintenance ((Rayala M. Bhuvaneshari v. Nagaphanender Rayala, A.I.R. 2008 A.P. 98 (India))), recovery of debts also includes ((Supra Note 34. The court held that, “if borrowers could find newer and newer methods to avoid repayment of the loans, the banks are also entitled to invent novel methods to recover their dues.”)). Right to Information Act, 2005 has been developed regarding this recently ((Union of India v. Central Information Commission, WP(C) 16907/2006, 3607 & 7304/2007, 4788 & 6085/2008 & 7930, 8396 & 9914/2009 (High Court of Delhi, 5th January 2010) (India) (Per Sanjiv Khanna, J.). The case concerned a challenge to the refusal of the Central Information Commission to divulge information under the Right to Information Act, 2005)).

Protection against dissemination: As the 2008 amendment brought several sections to protect disclosure of information, which was absent prior to this. These include 43A which provides compensation which one will be liable to pay if he fails to protect sensitive or confidential data.  The concern here is that these guidelines go beyond the scope of telecommunication regulations providing legal sanction for non-adherence. These are with objective to protect confidentiality with data thus they cannot be counted as proper legislative measurements to protect privacy loss of information because these are not examined for informal components.

Limitation of present privacy regime

Lack of incentive and procedure

As there are various underlying problems in present legal regime application which is also consider as design defect of surveillance system.  An examination of several judicial decisions have established that although due process is followed by judiciary, they have intemperately relied upon framing of strict procedure as well as called for adherence to gauge telephone tapping validity and legality. In all possibilities, the approach towards online surveillance will be same.

The most evident critique which may be pointed towards the privacy through functional or procedural argument, will be that people individual is bound to comply such procedure so people will be not comply with such. Such a counter will be conclude that administration and executive officials i.e. police, put in charge of precautions will barely be stickler for following procedures. Their principle job will be policing rather than securing privacy to individual. Hence, they will be liable for institutional bias ((Romesh Sharma v. State of Jammu & Kashmir, 2007 (1) J.K.J. 84))to their natural function. The anticipator finds it legitimate and logical end by making a less incentive reasoning.  A review of judicial decision shows that judiciary have convicted wrongdoer on evidence collected by unconventional procedure when such is usually held not obligatory ((R. M. Malkani v. State of Maharashtra, A.I.R. 1973 S.C. 157 (India). The court deciding on the admissibility of evidence under section 7 of the Evidence Act, 1972 held that, “…there is warrant for the proposition that even if evidence is illegally obtained it is admissible)). It does not affect the admissibility of evidence in the court of law if there is inadequacy in observing the safeguard in the case of telephone tapping ((State (N.C.T. of Delhi) v. Navjot Sandhu, A.I.R. 2005 S.C. 3820)). The court ruled out those two loopholes has been pointed out in orders regarding authorization and confirmation of interception of telephone number. It was not established by the prosecution that Joint Director (IB), who acted as interceptor and authorized the interception, withstands the rank of Joint Secretary to Union of India. Secondly, verified orders which were passed by Home Secretary (Volume VII, Page 446-448) would suggest that confirmation was potential in nature. Nevertheless, these inefficiencies and inadequacies do not rule out the admission of intercepted communication through telephones as evidence. It is also to be looked that Section 5 and Rule 419A does not deal with rule of evidences unlike Section 45 of POTA. The non-compliance with provisions of Telegraph Act does not intrinsically affect admissibility ((It is to be noted that even though the Information Technology Act, 2000 does not contain a section analogous to section 45 of the Prevention of Terrorism Act, 2002 which contained language to make evidence admissible even in cases of procedural impropriety for which the decision was given, the general approach of law enforcement is to flout procedural safeguards)).

Ineffective injury redressal system

The problem on non-abidingness to procedure is compounded because of inefficient legal measurements to expose or detect the privacy loss, until the data is distributed publicly making the subject known to infringement. This appears essential as a notification may lead to the concealment of information which is looked to be assembled. However this problem is demonstrating. It is predicted that dearth of precedent that challenges unjustified surveillance can be attributed to the confidentiality.  There are observational evidence indicates that unwarranted or unjustified surveillance is very large and occurs frequently. The PUCL case itself is reflexive as it arose out of a series of study demonstrated by CBI which indicated that high level of non-warranted ear wigging on communication between politicians ((Supra note 12)).  In a recent case which was one of iconic headlines of mass communication when the phone was illegally tapped of leader of major politician ((Amar Singh v. Union of India, 2006 (2) S.C.A.L.E)).

Even in an uncertain event where an individual suspects that he is being under espionage or electronic spy, his remedies are enforceable. The courts have their discretion to entertain such through a writ petition under Article 32 or 226 of Indian constitution ((Sunkara Satyanarayana v. State of Andhra Pradesh, 2000 (1) A.L.D. (Cri.) 117)). Judicial review of actions which are unjustified can be sought and relief may be granted accordingly. The other options includes criminal action police officer or any administrative officer for criminal trespass as per proviso of Code of Criminal Procedure, 1973 and damages by filing civil suit can also be claimed. These remedies somehow may look cushy and attractive but it takes substantial efforts and counseling to enforce specially in a judicial system like India. Thus, relying over judicial proceedings to seek remedy of privacy breach will be an ineffectual option.

Limited protection against loss of privacy of individual

As absence of data protection standards, the current privacy regime comes into being for the protection of civil liberties of individual against the political body. In a set-up of such nature the protection which is sought against individual or private entity, can only be sought when there in non performance of functions which are performed under the state supervision. Thus, these kinds of approaches neglects the fundamental temporal of internet economy, where the state is considered as fringy player, and users’ look for habits which are diminished in some of internet service providers. From the basic access of database from desktop, a user generally logs in a search engine or internet service provider. These are operated by the same corporation most of the time, known as conglomeration i.e. Yahoo-mail ((Is your email privacy safe with Google’s Gmail and Yahoo! Mail?, July 30, 2006, http://www.scooq.com/general/is-your-email-privacy-safe-with-googles-gmail-and-yahoo-mail/34/ (last visited January 5, 2016)), Gmail commonly known as Google-mail ((BBC News, Google’s Gmail Sparks Privacy Row, Apr. 5, 2004, http://news.bbc.co.uk/2/hi/3602745.stm (last visited January 5. 2016)), Rediff-mail, Hot-mail, Bing. The basic revenue model of such conglomeration companies’ is prepared upon the basis of providing contextual promotion and publicity to support the kind of service they provide. This is not an anticipated argument but the use of such information can lead individual of privacy loss. For example the creator of the cyberspace itself has conveyed that searching for information regarding cancer or depression may result in increased health insurance policy and indemnity premiums as the companies can data track activities of consumer and sell the same information to the insurance company ((BBC News, Rory Cellan-Jones, Web Creator Rejects Net Tracking, Mar. 17, 2008, http://news.bbc.co.uk/2/hi/7299875.stm (last visited January 5, 2016).)).

Non acknowledgment of loss of information processing

The current privacy regime is narrow in scope as does not provide protection and safeguard against several losses which are incurred. These are dazzling regarding the complete non-acknowledgement of crucial harms which are incurred more frequently. A novel amount of personal data and information is accessible online and when amalgamated, life of individual becomes ‘’ over time ((Omer Tene, What Google Knows: Privacy and Internet Search Engines, 2008, Utah Law Review. 1433)). Increase in the degree of privacy loss is the concept that data is saved in immense private database by limited conglomerates because of confidential and limited nature of online service provider industry. Nevertheless, when this confidential data is visible non-contextually, it results into wrongful illation being drawn i.e. search logs of a person can possibly for research purpose and not for subjective or private health checkups. The concerning fact here is that person whose information is assembled does not have any kind of acknowledgement or notice causing loss of exclusion.

This kind of exclusion of data processing and not data gathering thus, there ought not to be any reasoning behind such exclusion. Presently, it is not inapposite to paying attention to EU Law on Privacy and refers those guidelines which comprise a basic prohibition backed by sanctions against confidential database. In addition the probable loss of secondary use, where data collected with intention to other than for which it was gathered. For a sturdy and strong privacy regime more procedures and law need to be prescribed to protect against loss of privacy which are unambiguously going on in cyberspace communications.

A Deeper cut to privacy

The abovementioned defects are underlying design defects in conceding sanction for surveillance and can also be applied to all mediums of telecommunication or cyber-communication. This section analyses certain harms that occurs specifically towards internet and cyber communication. The internet as an interactional intermediate renders individual with vast range of application befitted to cater any information required. This may be thru the form of text, audio or video, the application of internet is very broad in nature, which makes harms of interception through cross synergies, much deeper. The harm is much more than of conventional telephonic tapping.

When an individual access the internet, he expects privacy to a certain level which he finds reasonable ((Cyber Cafe in Gandhinagar, India, http://www.worldembassyinformation.com/india-cyber-cafe/cyber-cafe-ingandhinagar.html. (last visited January 5, 2016).)). Unaware due to satisfaction of own desires and curiosities, he may reveal more piece of information to a computer than to another individual.

Thus, communications through internet or cyberspace are confidential in nature and concern the essential privacy of individual. Cyberspace communication is manifestation of individual’s motive or intention.  Statement of John Battelle to this context makes for reading “Link by link, click by click, search is building possibly the most lasting, ponderous, and significant cultural art effect in history of mankind: the database of intention”, ((John Battelle, The Database of Intentions (Nov. 13, 2003), http://battellemedia.com/archives/000063.php (last visited Jan. 4, 2016).))Thus, by following the same orthodox and principle which has been established for telephone tapping would be complete simplification and answer of all the question posed by loss of privacy and data alteration in cyberspace and internet communication.

Comparative Study of Data Protection

United Kingdom

In United Kingdom parliament in 1984 passed Data Protection Act (DPA) which was struck down and replace by Data Protection Act, 1998. The objective of the act is protection of personal data of individual and enhancement of privacy regime in states. The act protects all kind of private data i.e. name, Email and address, etc. The Act applies to all kind of data and information which is capable of being held on computer or electronic operating equipments in relevant file system. This act mandates each person or organization which stores data or personal information to register to the same to Information Commissioner ((Section 6, Data Protection Act, 1998, No. 21 of 2000)).  Besides that United Kingdom in August 2011 passed Cyber crime prevention Act. The objective of this act is to put restrict on collection of personal information or private data other than lawful purpose.

Similar legislation regarding cyber crimes and rules is also adopted by other nations i.e. China, Australia, Canada.

United States of America

Although United States and European Union aims to protect privacy of individual in state, United States has adopted entirely different approach regarding privacy regime. Unites States follows mix legislation and self regulating sectoral approach. Data and information is classified into several section based on their value and significance. In 1974 Privacy Act was passed providing government agency to compare data in different classed based on their nature. United States have the democratic HIPPA Act, commonly referred as Health Insurance Portability and Accountability Act which governs all the records regarding health and insurance policy. The upkeep regarding issue of privacy and confidentiality covers in this act. In 2002 legislation signed Sarbanes-Oxley (SOX) Act to officially mandate and instructs a few reforms for enhancement of corporate liability. This act also contains provisions for financial disclosure to combat accounting fraud and corporate crimes. United States legislation also covers certain policies i.e. Cable Communication Policy Act, Online Privacy Protection Act, Electronic Communication Privacy Act for interception of Telecommunication through Electronic means Both federal and states have their respective laws regarding data protection ((Merges R and Nelson R (1999), On the Complex Economics of Patent Scope, 90(1) Columbia Law Review, 838- 961 at 855)).

India

Looking at the Indian Scenario, with the wrongful use of technology, the strict need to regulate criminal activities arose. Information Technology Act amendment in 2008 along with certain provisions of Indian Penal Code came into picture for protection of cyber space crimes.

Constitutional Liability: Hacking or stealing into someone’s intellectual work is strict violation of Right to Privacy. Although constitution does not explicitly mentions right to privacy but it is protected under Indian Constitution. The Supreme Court in many cases examined right to privacy under Article 14, 19 and 21 of Indian Constitution ((Naz Foundation v. Government of NCT of New Delhi & others, Writ Petition no. 7455/2001)). Many judicial decisions have affirmed that right to privacy is very much of fundamental right under Article 21 of Indian Constitution.

Criminal Liability: Criminal liability imposes punishment for the wrongs. Under Indian Penal Code there are certain provisions regarding Cyber Crimes such as Sending threatening messages through electronic media i.e. E-mails ((Section 503, Indian Penal Code, 1860, No. 45 of 1860)), sending defamatory messages ((Section 499, Indian Penal Code, 1860, No. 45 of 1860)), cyber frauds or bubble website making ((Section 420, Indian Penal Code, 1860, No. 45 of 1860)), forgery ((Section 468, Indian Penal Code, 1860, No. 45 of 1860)), web-jacking ((Section 383, Indian Penal Code, 1860, No. 45 of 1860)), abuse by electronic mediums i.e. e-mails ((Section 500, Indian Penal Code, 1860, No. 45 of 1860)), criminal intimidation by anonymous communication ((Section 507, Indian Penal Code, 1860, No. 45 of 1860)), theft of computer hardware or computer software ((Section 378, Indian Penal Code, 1860, No. 45 of 1860)), sale of obscene objects to youngsters, Printing of indecent or scurries matters intended for blackmailing ((Section 292 A, Indian Penal Code, 1860, No. 45 of 1860)), obscene acts ((Section 294, Indian Penal Code, 1860, No. 45 of 1860)).

Other then Indian Penal Code provisions, there are other acts under Indian legislation which imposes criminal liability i.e. Copyrights Act. This includes Infringement of Copyrights ((Section 51, Indian Copyrights Act, 1957)), Abatement for infringement of Copyrights ((Section 63, Indian Copyrights Act, 1957)), penalty enhancement on second conviction or subsequent infringements ((Section 63A, Indian Copyrights Act, 1957)), knowing use of computer program or infringing copy of computer program ((Section 63B, Indian Copyrights Act, 1957)).

The Application of these provisions varies case to case basis and these are subject to investigation and charge-sheet filing depending on the nature of the crime.

Tortious Liability: Basic structure of cybercrime is established through Donoghue v Stevenson ((Donoghue v Stevenson (1932), AC 532)). In India it developed through Information Technology Act, 2000 followed by 2008 amendment. This Act is basic structure of Tortious liability in India. There are provisions regarding penalty and compensation for computer damage ((Section 43, Information Technology Act, 2000, No. 21 of 2000)), Failure to protect data, hacking computer system ((Section 43A, Information Technology Act, 2000, No. 21 of 2000)), Dishonestly receiving computer or communication devices ((Section 66B, Information Technology Act, 2000, No. 21 of 2000)), Cheating by using electronic means i.e. computer, Violation of privacy ((Section 66E, Information Technology Act, 2000, No. 21 of 2000)), Data alteration ((Section 66, Information Technology Act, 2000, No. 21 of 2000)), Cyber terrorism ((Section 66F, Information Technology Act, 2000, No. 21 of 2000)), Publication of material containing sexually explicit acts ((Section 67A, Information Technology Act, 2000, No. 21 of 2000)), obscene material, misrepresentation ((Section 71, Information Technology Act, 2000, No. 21 of 2000)), falsify digital signatures ((Section 73, Information Technology Act, 2000, No. 21 of 2000)), breach of confidentiality and privacy ((Section 72, Information Technology Act, 2000, No. 21 of 2000))and all offences by companies ((Section 85, Information Technology Act, 2000, No. 21 of 2000)). This act also applies to acts committed outside Indian Territory ((Section 75, Information Technology Act, 2000, No. 21 of 2000)).

Analysis

By comparing Indian laws on cyberspace with the laws of developed countries, the requirement of proper law in India can be analyzed. Data are dissimilar in nature based on their value, utility and importance, so all data cannot be considered alike. We require framing the separate and classified category of data having different quality, utility and value as the United States has adopted. Furthermore, the provisions of Information Technology Act are narrow in nature as it only deals with the extraction and destruction of data, etc. Companies cannot get complete protection of data which force them to enter into separate privacy contracts to keep their data confidential and secured. These contracts are enforceable under law. Apart from the loopholes of Information Technology Act, police system and officials are not familiar with cybercrimes in India. They need proper training to recognize with “Modus Operandi” of Internet and Cyber related crimes.

Despite the fact that efforts have been mode for proper data protection law as independent discipline, Indian legislative body left some lacuna in drafting of 2006 bill of Personal data Protection. This bill was drafted by following United Kingdom Data Protection Act but requirement is of an effective comprehensive act. Both Bar and Bench need to cognize the extent of internet crimes. They should make themselves conversant with complexness of cyber law and draft law by fulfilling the today’s requirement.

Conclusion

Privacy ideologists have to harmonize with the fact that their state and administration has right to intercept and supervise data control in a specified situations. This is more asserted given the current situations where scepter of cyber-war and terrorism is obsessing most of the nations. Once this agreement is achieved; next logical step will be to secure the checks and balance of potential abuse of data while intercepting. Without competent incentive designs, checks and balance are merely curiosity at best. The provisions made under the ordinance recently cannot be called defective, yet imperfect. It would be not wrong to say ratification and refinement is required in current regime of cyberspace laws. Mandating the ex-ante ex-party judicial orders can be an outsmart alternative towards information gathering. Such orders are capable of curing inherent defects as they remove inherent bias of the officials.

This will be more realistic and convenient compromise and will not lead to major shift in current procedure aimed approach. The breach of privacy is higher than traditional encroachment of privacy. The provision of section 69 should also be applied to section 69B of Information Technology Act. Above and beyond this the causation privacy loss is clear, which postulate safeguard developed by PUCL Court under “right to privacy” to be added in section 69B.

Clearly, privacy under cyberspace is an emerging and essential field in India’s cyberspace society. As companies collect huge data and information from online users, and government has been successful in surveillance capabilities, it is crucial that Indian legislation prioritize privacy of individual. The amendments without rectification create prison with surveillance station, Bentham’s panopticon. Confronted by privacy issue on cyber communication, the legislature faces a fragile duty to decide crucial policy matters. Either following totalitarian tendency or adopting a liberal conception can afford a security net to privacy.

A Major Milestone for the Indian Economy: Competition Act, 2002

Maitri Tandon, Student of Law, Symbiosis Law School, Pune

ABSTRACT

This Project concerns in itself an indepth analysis of the Competition Act, 2002. It is a socio econmic analysis of the act with history of the act, examples, comparison with the MRTP Act and also the current results in the economy due to the introduction of the Competition Act in 2002.

ANALYSIS

After Independence the Indian Economic Policy trended towards protectionism with a strong emphasis on import substitution, those policy were highly influenced by the colonial experience ((Economy- Overview ,The  World Fact Book,  Available at : https://www.cia.gov/library/publications/the-world-factbook/fields/2116.html)). The initial stages of the country’s growth were focused on making the self reliant and attempts were made to close the economy to the outside world. This was done by making the Indian rupee inconvertible and charging high tariffs and import licensing on foreign goods which prevented the imports to reach the Indian markets. India also tried the system of central planning for the economy, in which the firms required to invest and develop. This policy could help India much and could not last long as by 1985 the Indian economy was in a deep hole by 1985. The country suffered a Balance of Payment crises, India could not clear off many imports, ran a high deficit, India borrowed from external sources, unsustainable government expenditure and also the foreign exchange of the country had hit the rock bottom with uncontrollable inflation. All of these reasons together aggrieved to the need for a change and introduction of the LPG (Liberalisation, Privatisation, Globalisation) Policy, which bent on liberalising and opening up the Indian economy for the world ((Ramesh Singh, Indian Economy, 7th Edition)). The aim was to make India a  investment friendly country for industries, which would eventually lead to rise in the foreign exchange reserves of the country and help it to dispose off its debts. The Indian economic liberalisation of 1991 was initiated by the then Prime Minister Narasimha Rao, along with the then finance minister Manmohan Singh. This reform did away with the License Raj reduced tariffs and interest rates and ended many public monopolies, allowing automatic approval of the FDI in many sectors. Since then the major thrust of liberalisation has remained the same, and by the turn of the 21st century, India had progressed towards a free market economy with a substantial reduction in state control of the economy and increase financial liberalisation.

With the wake and further development of Liberalisation and privatisation that was earlier triggered in the nineties, a realisation gathered momentum for the need for new procedure to take the completion aspect of the liberalised Indian economy which, was not being properly handled by the then existing Monopolistic and Restrictive Trade Practices Act, 1969 (MRTP ACT), ((Monopolistic and Restrictive Trade Practices, Advocate Khoj, Available At: http://www.advocatekhoj.com/library/lawareas/mono/monopolistic.php?Title=Monopolistic%20and%20Restrictive%20Trade%20Practice&STitle=Monopolistic%20and%20Restrictive%20Trade%20Practice%20under%20Act,%201969))Indian enterprises started facing the heat of competition from domestic players as well as from global giants, which called for level playing field and investor-friendly environment. Hence, need arose with regard to competition laws to shift the focus from curbing monopolies to encouraging companies to invest and grow, thereby promoting competition while preventing any abuse of market power ((Indian Competition Act: An Overview; Rajkumar Dubey)).

The need arose because of the existence of an open market economy  which means  free existence of trade and enterprises undermine the market by resorting to anti competitive practices for short term gains. These anti competitive practices can completely nullify the benefits of competition. It was for this reason that, India and other countries across the globe embraced market economy, and for this reason it became important for India to re enforce its economy through the enactment of competition law. The main reason to enact the Competition Act, 2002  was to in line with international trend and to cope up the changes in the country. The competition policy is a way used by the government to affect the conduct of enterprises and structure of industries with a aim of promoting efficiency and maximising consumer/ social welfare. There are two components of a full fledged competition policy The first involves putting in place a set of policies that enhance competition or competitive outcomes in the markets, such as relaxed industrial policy, liberalised trade policy, convenient entry and exit conditions, reduced controls and greater reliance on market forces. The other component of competition policy is a law and its effective implementation to prohibit anti competitive behaviour by businesses, to prohibit abusive conduct by dominant enterprise, to regulate potentially anti competitive mergers and to minimise unwarranted government/regulatory controls.

EFFECT OF COMPETITION AND ITS POLICIES

The whole idea of competition is to let new industries enter the market so as to allow free and fair competition to the existenting enterprizes. This process leads to increased number of firms and thereby increases number of productus/ output in the market. Hence, providing wider variety to the customers and now when customers get to choose between different providers, they benefit and so the economy as a whole. Their ability to choose forces firms to compete with one another. Choice for customers is a good thing in itself, but competition between firms also leads to increased productivity and economic growth ((Factsheet on how competition policy affects macro- economics outsomes, october 2014, Available at: http://www.oecd.org/daf/competition/2014-competition-factsheet-iv-en.pdf)).

Capture 1

 

Economic Growth ((Ibid)).

Competition also leads to an improvement in allocative efficiency which is the basic economic problem along with scarcity of resources and unlimited needs faced by every country, by allowing more efficient firms to enter and gain market share, at the expense of the less efficiant firms .Regulations, or anti-competitive behaviour preventing entry and expansion, may therefore be particularly damaging for economic growth. Competition also improves the productive efficiency of firms (the so called within-firms effects), as firms facing competition seem to be better managed. This can even apply in sectors with important social as well as economic outcomes: for example, there is increasing evidence that competition in the provision of healthcare can improve quality outcomes. There is also evidence that intervening to promote competition will increase innovation. Firms facing competitive rivals innovate more than monopolies (although after such competition a firm may of course end up with a monopoly through a patent). The relationship is not simple: it is possible that moderately competitive markets innovate the most, with both monopoly and highly competitive markets showing weaker innovation. However, as competition policy does not focus on making moderately competitive markets hyper-competitive, but rather on introducing or strengthening competition in markets where it does not work well, this would still imply that most competition policies serve to promote innovation.

Because more competitive markets result in higher productivity growth, policies that lead to markets operating more competitively, such as enforcement of competition law and removal of regulations that hinder competition, will result in faster economic growth ((Ibid)).

CONCLUSION

The Competition Act ushers in a new Competition Regime in India. The new regime will herald a paradigm shift to the business environment in India. A significant section of Indian industry is, perhaps rightly so, apprehensive about this new enactment and its possible impact on them.Industry is also anxious that the advantages to various sectors arising out of competition should percolate to consumers and businesses for a level playing field, redressal against anti competitive practices, competitively priced inputs and optimal realization from sale of assets.  While the objective of the Competition Act, 2002, as stated in its preamble, is undoubtedly laudable and nneedless to say that this dynamic statute can and will touch and change the way Corporate India functions on a day to day basis, what is important is that the investigations and inquiries under the provisions of the Act should be concluded as expeditiously as possible and timing issuesneed to be addressed and also the act is comprehensive enough and meticulously carved out to meet the requirements of the new era of market economy, which has dawned upon the horizon of Indian economic system. The monopoly system could not have inany other way have survived in the Indian Economy because of the vast population with a diverse variety it had to deal with.

Role of due diligence in mergers and acquisition

Jayant Mudgal, Student of Law, Amity Law School – I

Introduction

Ever since the Indian Economy opened itself to the foreign market after the economic liberalization reforms of 1991, Mergers and Acquisitions have become a common phenomenon throughout India. In a highly competitive global environment, mergers and acquisitions have turned out to be one of the fastest strategic options for companies to gain competitive advantage. While a merger is a combination of two companies, with one company merging itself into the other and losing its identity, while the other prominent company gains more importance and either absorbs the other company or consolidates itself with the other company, an acquisition is the action whereby the acquiring company purchases the interests of the acquired company’s shareholders and ceases to have any interest or right after the acquisition.

Merger is an arrangement that assimilates the assets of two or more companies and vests their control under one company. Acquisition simply means buying the ownership in a tangible or intangible asset such as purchase by one company of controlling interest in the share capital of another company or in the voting rights of an existing company. In the merger context, both companies pool their interests, which mean that the shareholders of both companies still hold on to their portfolio interests from their company and also gets interests in the other enterprise.

The term ‘amalgamation’ is used synonymously with the term merger and both these terms are used interchangeably but both these terms are not precisely defined in The Companies Act, 1956. Section 390 to 395 of Companies Act, 1956 deal with arrangements, amalgamations, mergers and the procedure to be followed for getting the arrangement, compromise or the scheme of amalgamation approved in India but the term merger or acquisition is not defined within the Act ((News Legal , ‘Role of Due Diligence in Mergers and Acquisition’ [July 18, 2013] 3(2) Legal Articles
available at http://www.legalindia.com/role-of-due-diligence-in-mergers-and-acquisition, last accessed on 2nd april,2016)).

However, the Income Tax Act, 1961 defines the term ‘amalgamation’ under section 2(1B) of the Act as the merger of one or more companies to form one company in such a manner that all the properties and liabilities of the amalgamating company(s) become the properties and liabilities of the amalgamated company, and not less than three-fourth shareholders of the amalgamating company become the shareholders of the amalgamated company.

Under Section 5 of the Competition Act, 2002, “combinations” are defined with reference to assets and turnover of merging companies located exclusively in India or located in India and outside India. Section 6 of the Competition Act, 2002 states that, no person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void. All types of intra-group combinations, mergers, demergers, reorganizations and other similar transactions are thus within the purview of the Competition Act, 2002 unless specifically exempted.

Further, mergers and acquisitions are also governed by the SEBI Takeover Code, 1994 and requires mandatory permission from High Courts of the respective jurisdiction of such companies to enable any scheme of amalgamation or merger or arrangement to come through.

Now, even though Mergers and Acquisitions have several advantages, but the risks involved are equivalent too. The real motive behind mergers or acquisitions should be on the table for all the parties concerned to ensure real success of such merger or acquisition. The post implementation phase is a very critical part where several mergers or acquisitions fail and before onset of any deal, most companies should conduct due diligence to ascertain the real risks and profitability of such deals. Due Diligence in Mergers and Acquisitions is the process of evaluating and investigating a prospective business decision by getting information about the financial, legal, intellectual and other material information from the other party ((http://www.divest.nic.in/Due_Diligence Last accessed on 3rd April 2016)).

The ultimate goal of such activities is to make sure that there are no hidden drawbacks or traps associated with the business transaction under consideration. By performing due diligence, a perfect strategy can be evolved to carry out the merger or acquisition. Failure to exercise due diligence prior to entering into a transaction of enormous proportions such as a merger or acquisition may lead to a precarious situation where the asset acquired, may be marred by encumbrances, charges and other liabilities which get automatically transferred to the acquirer as a result of such acquisition. While the cost involved in performing a due diligence is on the higher side, as it usually involves the services of a CA and an attorney, the importance of conducting a thorough due diligence before undertaking a transaction cannot be undermined under any circumstances. To any company involved in merger or acquisition, the due diligence investigation will attempt to reveal all material facts and potential liabilities relating to the target company/unit/business.

The purpose of due diligence is to confirm that the business actually is what it appears to be. While gaining information about the business, the company conducting the due diligence can definitely identify deal killers and eradicate them. Further, information for valuing assets, defining representations and warranties, and/or negotiating price concessions can also be obtained vide due diligence. The information learned while conducting due diligence will further help in drafting and negotiating the transaction agreement and related ancillary agreements.

This information will also be helpful in allocating risks in regards to representations and warranties, pre-closing assurances and post-closing indemnification rights of the acquirer, organizational documents to determine the stockholder and other approvals required to complete the transaction, contracts, including assignment clauses, and permits and licenses, to determine whether the transaction is contractually prohibited or whether specific consents are required, regulatory requirements, to determine if any governmental approvals are required, and debt instruments and capital infusions, to determine repayment requirements. Why Due Diligence? Mergers and Acquisitions revolve around certain specific steps and due diligence is the first step to make the end business successful.

Mergers and Acquisitions

Mergers and Acquisitions is an important way for companies to grow and become stronger and better organizations. The main reasons underlying such operations are:

  1. Enhanced reputation in marketplace or with stakeholders
  2. Reduction of operating expenses or costs
  3. Access to management or technical talent
  4. Access to new product lines
  5. Growth in market share (complement/extend current business)
  6. Quick access to new markets or entry into new industry (diversification)
  7. Reduction in number of competitors
  8. Access to new technology, manufacturing capacity or suppliers

Now, even though Mergers and Acquisitions have several advantages, but the risks involved are equivalent too ((JohnH Sykes , ‘Abstract:’ [ July 17, 2013] 10(1) Role of Due Diligence in Mergers and Acquisition available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294836 Last accessed on 2ndApril 2016)). The real motive behind mergers or acquisitions should be on the table for all the parties concerned to ensure real success of such merger or acquisition. The post implementation phase is a very critical part where several mergers or acquisitions fail and before onset of any deal, most companies should conduct due diligence to ascertain the real risks and profitability of such deals.

Due Diligence

Due Diligence in Mergers and Acquisitions is the process of evaluating and investigating a prospective business decision by getting information about the financial, legal, intellectual and other material information from the other party.

The ultimate goal of such activities is to make sure that there are no hidden drawbacks or traps associated with the business transaction under consideration. By performing due diligence, a perfect strategy can be evolved to carry out the merger or acquisition. Failure to exercise due diligence prior to entering into a transaction of enormous proportions such as a merger or acquisition may lead to a precarious situation where the asset acquired, may be marred by encumbrances, charges and other liabilities which get automatically transferred to the acquirer as a result of such acquisition. While the cost involved in performing a due diligence is on the higher side, as it usually involves the services of a CA and an Attorney, the importance of conducting a thorough due diligence before undertaking a transaction cannot be undermined under any circumstances.

To any company involved in merger or acquisition, the due diligence investigation will attempt to reveal all material facts and potential liabilities relating to the target company/unit/business. The purpose of due diligence is to confirm that the business actually is what it appears to be. While gaining information about the business, the company conducting the due diligence can definitely identify deal killers and eradicate them. Further, information for valuing assets, defining representations and warranties, and/or negotiating price concessions can also be obtained vide due diligence. The information learned while conducting due diligence will further help in drafting and negotiating the transaction agreement and related ancillary agreements ((Available at mergers-acquisitions/what-is-merger-and-acquisition-due-diligence available at http://www.cio.com/article/2931585/ Last accessed on  3rd April 2016)).

This information will also be helpful in allocating risks in regards to representations and warranties, pre-closing assurances and post-closing indemnification rights of the acquirer, organizational documents to determine the stockholder and other approvals required to complete the transaction, contracts, including assignment clauses, and permits and licenses, to determine whether the transaction is contractually prohibited or whether specific consents are required, regulatory requirements, to determine if any governmental approvals are required, and debt instruments and capital infusions, to determine repayment requirements ((Matt Matt h evans, ‘Course 7: Mergers & Acquisitions (Part 1)’ [March 2000] 16(3) Excellence in Financial Management 16-24 available at  http://www.exinfm.com/training/pdfiles/course07-1Last accessed on 3rdApril 2016)).

THE PURPOSES OF A DUE DILIGENCE INVESTIGATION

When a company is considering the acquisition of a target, the purposes of a due diligence investigation include:

  1. To ascertain the appropriate purchase price to be paid by the buyer, and the method of payment, including earn outs;
  2. To determine details that may be relevant to the drafting of the acquisition agreement, including the substance, extent, and limitations of representations and warranties and any relevant escrow or hold-back agreement for a breach of the same;
  3. To evaluate the legal and financial risks of the transaction;
  4. To evaluate the condition of the physical plant and equipment; as well as other tangible and intangible property to be included in the transaction;
  5. To analyze any potential antitrust issues that may prohibit the proposed merger or acquisition;
  6. To determine compliance with relevant laws and disclose any regulatory restrictions on the proposed transaction; and
  7. To discover liabilities or risks that may be deal-breakers.

The evolution of due diligence

After passing the Securities Act, the meaning of the term “due diligence” has become associated with the orderly investigation of a variety of matters pertaining to business and has been adapted for use in many situations. Regardless of how it is used, “due diligence” implies that the person conducting the investigation has made a “diligent” effort to obtain all of the relevant and meaningful information pertaining to the matter under investigation and has disclosed all of that information in a dutiful and forthcoming manner. In other words, thorough, conscientious due diligence continues to provide a defense to those who find themselves tasked with the investigation of an important business matter ((Wendy BE Davis, ‘The Importance of Due Diligence Investigations: Failed Mergers and Acquisitions of the United States’ Companies’ [2009] 5(3) The evloution of Due Diligence available at http://www.ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-1/1.pdf Last accessed on  3rd April 2016.)).

Making Due Diligence

Work Since due diligence is a very difficult undertaking; you will need to enlist your best people, including outside experts, such as investment bankers, auditors, valuation specialist, etc. Goals and objectives should be established, making sure everyone understands what must be done. Everyone should have clearly defined roles since there is a tight time frame for completing due diligence. Communication channels should be updated continuously so that people can update their work as new information becomes available; i.e. due diligence must be an iterative process.

Throughout due diligence, it will be necessary to provide summary reports to senior level management. Due diligence must be aggressive, collecting as much information as possible about the target company. This may even require some undercover work, such as sending out people with false identities to confirm critical issues. A lot of information must be collected in order for due diligence to work. This information includes ((Frederick r.medero, ‘Understanding Mergers & Acquisitions: Due Diligence through a Different Prism’ [1998] 2(3) Financial Services & E-Commerce News letter available at http://www.fed-soc.org/publications/detail/understanding-mergers-acquisitions-due-diligence-through-a-different-prism Last accessed on 3rd April 2016.)):

  1. Corporate Records: Articles of incorporation, by laws, minutes of meetings, shareholder list, etc.
  2. Financial Records: Financial statements for at least the past 5 years, legal council letters, budgets, asset schedules, etc.
  3. Tax Records: Federal, state, and local tax returns for at least the past 5 years, working papers, schedules, correspondence, etc.
  4. Regulatory Records: Filings with the SEC, reports filed with various governmental agencies, licenses, permits, decrees, etc.
  5. Debt Records: Loan agreements, mortgages, lease contracts, etc.
  6. Employment Records: Labor contracts, employee listing with salaries, pension records, bonus plans, personnel policies, etc.
  7. Property Records: Title insurance policies, legal descriptions, site evaluations, appraisals, trademarks, etc.
  8. Miscellaneous Agreements: Joint venture agreements, marketing contracts, purchase contracts, agreements with Directors, agreements with consultants, contract forms, etc. Good due diligence is well structured and very pro-active; trying to anticipate how customers, employees, suppliers, owners, and others will react once the merger is announced. When 17 one analyst was asked about the three most important things in due diligence, his response was “detail, detail, and detail.” Due diligence must very in-depth if you expect to uncover the various issues that must be addressed for making the merger work.

What Can Go Wrong

Failure to perform due diligence can be disastrous. The reputation of the acquiring company can be severely damaged if an announced merger is called-off. For example, the merger between Rite Aid and Revco failed to anticipate anti-trust actions that required selling off retail stores. As a result, expected synergies could not be realized. When asked about the merger, Frank Bergonzi, Chief Financial Officer for Rite Aid remarked: “You spend a lot of money with no results.” A classic case of what can wrong is the merger between HFS Inc and CUC International. Four months after the merger was announced, it was disclosed that there were significant accounting irregularities.

Upon the news, the newly formed company, Cendant, lost $ 14 billion in market value. By late 1998, Cendant’s Chairman had resigned, investors had filed over 50 lawsuits, and nine of fourteen Directors for CUC had resigned. And in the year 2000, Ernst & Young was forced to settle with shareholders for $ 335 million. Consequently, due diligence is absolutely essential for uncovering potential problem areas, exposing risk and liabilities, and helping to ensure that there are no surprises after the merger is announced. Unfortunately, in today’s fast-paced environment, some companies decide to by pass due diligence and make an offer based on competitive intelligence and public information. This can be very risky ((Bill snow, ‘Mergers and Acquisitions For Dummies’ [1996] 2(1) The M&A Due Diligence Process available at
http://www.dummies.com/how-to/content/the-ma-due-diligence-process.html Last accessed on  3rd April 2016.)).

Due Diligence in India

The practice of undertaking a formal due diligence investigation is of comparatively recent origin in India and was mainly imported as a process by foreign investors/their legal and financial advisors after the economic liberalization reforms of 1991.

No statute defines the term ‘due diligence’. However, the SEBI mandates certain parties to undertake a due diligence, in the context of issuance of securities by a company. For instance:

Regulation 64 of Chapter VI of the ICDR Regulations, requires the BRLMs to exercise due diligence and satisfy themselves about all the aspects of the issue. The BRLM is also required to call upon the issuer, its promoters or in case of an offer for sale, the selling shareholders, to fulfill their obligations as disclosed by them in the offer document.

Regulation 65 requires the BRLM to submit post-issue reports to the SEBI. The BRLM is also required to submit a due diligence certificate as per the format specified in Form G of Schedule VI, along with the final post-issue report. (Regulation 65 (3))

Under Regulation 83, a qualified institutions placement shall be managed by BRLM(s) registered with the SEBI who shall exercise due diligence. The BRLM, while seeking inprinciple approval for listing of the eligible securities issued under the qualified institutions placement, is required to furnish to each stock exchange on which the same class of equity shares of the issuer are listed, a due diligence certificate stating that the eligible securities are being issued under qualified issuers placement.

Before the opening of the issue, the BRLM is required to submit a Due diligence certificate along with the draft offer document to the SEBI.

Under Regulation 8(2)(b), the lead banker is required to submit, after the issuance of observations by the SEBI or after the expiry of the stipulated period, if the SEBI has not issued observations, a due diligence certificate at the time of registering the prospectus with the Registrar of Companies ((Available at http://almtlegal.com/practice/mergers-acquisitions.htm Last accessed on 3rdAapril, 2016)).

Under Regulation 10(3)(a), the BRLM is required to submit to the SEBI, along with the offer document, a due diligence certificate including additional confirmations.

Diligence in Listed and Unlisted Companies in India

Listed companies entail more extensive review of compliances, as well as a greater degree of caution with respect to the sharing of information and structuring of a transaction, as compared to unlisted companies.

In case of a listed company, the provisions of the SEBI (Prohibition of Insider Trading) Regulations, 1992, as amended are applicable. The due diligence should not include review of unpublished price sensitive information except in certain special circumstances. However, publicly available information under the listing agreement signed by the listed companies with the stock exchanges may not be adequate to base an investment decision. Therefore, in case of a listed company, care must be taken to ensure (in consultation with the legal advisors and relevant members of the transaction team) that the insider trading regulations are not violated in the due diligence process. This matter has to be dealt with on a case-by-case basis.

For listed companies, analysis of potential triggers of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, as amended, in the case of a proposed acquisition or transfer will need to be made.

Reverse Mergers

Reverse mergers are a very popular way for small start-up companies to “go public” without all the trouble and expense of an Initial Public Offering (IPO). Reverse mergers, as the name implies, work in reverse whereby a small private company acquires a publicly listed company (commonly called the Shell) in order to quickly gain access to equity markets for raising capital. This approach to capitalization (reverse merger) is common practice with internet companies like stamps.com, photoloft.com, etc.

For example, ichargeit, an e-commerce company did a reverse merger with Para-Link, a publicly listed distributor of diet products. According to Jesse Cohen, CEO of ichargeit, an IPO would have cost us $ 3 – 5 million and taken over one year. Instead, we acquired a public company for $ 300,000 and issued stock to raise capital. The problem with reverse mergers is that the Shell Company sells at a serious discount for a reason; it is riddled with liabilities, lawsuits, and other problems. Consequently, very intense due diligence is required to “clean the shell” before the reverse merger can take place. This may take six months. Another problem with the Shell Company is ownership. Cheap penny stocks are sometimes pushed by promoters who hold the stock in “street name” which mask’s the true identity of owners. Once the reverse merger takes place, the promoters dump the stock sending the price into a nose-dive. Therefore, it is absolutely critical to confirm the true owners (shareholders) of shell companies involved in reverse mergers ((Ptlb, ‘Online Petition And Survey By CCICI Regarding Cyber Law Due Diligence In India’ [ February 25, 2014] 5(3) Techno Legal Telecom Regulatory Compliances And Mergers And Acquisitions Legal And Consultancy Services In India available at http://perry4law.co.in/blog/?p=42 Last accessed on 3rd April 2016)).

Conclusions

Due diligence is an integral aspect of a merger and acquisition transaction. Integrating principles and techniques used in the management of risk can significantly enhance the effectiveness of due diligence by changing the focus from merely verifying facts to understanding the risk profile of the constituent institutions and the issues that can arise from efforts to integrate their businesses. A deeper understanding of those issues and the means for their resolution can lead to better and more efficient planning and execution of the integration process.

Once the Memorandum of Understanding and merger proposal has been approved by both the companies, each company should make an application under the Companies Act, 1956 to the High Court of the State where its registered office is situated so that it can convene the meetings of share holders and creditors for passing the merger proposal. Thereafter notices must be dispatched to the shareholders and creditors of the company to convene a meeting and such meeting must be subsequently held where at least 75% of shareholders of the company who vote either in person or by proxy must approve the scheme of merge.

Once the scheme of merger has been approved by the creditors and shareholders, another petition to High Court to confirm the scheme of merger must be presented and notices regarding the same published in two newspapers. After the High Court passes an order approving the scheme or merger or amalgamation, the certified true copies of the orders must be sent to the registrar of the companies and assets and liabilities of the companies stands transferred to the amalgamated company. It has been reported that mergers and acquisitions take about a three to four months for completion although the SEBI Takeover Regulations require the acquirer to complete all procedures relating to the public offer including payment of consideration to the shareholders who have accepted the offer, within 90 days from the date of public announcement ((Wendy b e davis, ‘ Mergers and Acquisitions of the United States’ Companies’ [2001] 4(2) The Importance of Due Diligence Investigations available at http://www.ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-1/1.pdf Last accessed on 3rd April 2016)).

However, ultimately, whatever the time limit might be, mergers and acquisitions definitely help the companies to strengthen and expand their business operations to increase profitability and consolidate the business structure. With strict due diligence in place, companies can definitely hope to tackle the risks involved and make the end result successful for effective mergers and acquisitions. Today, India presents the right opportunities for companies to engage in cross-cultural transactions and amalgamations and Indian markets are registering massive growth in mergers and acquisitions with consolidation of international businesses in India and fierce competition amongst business houses who are seeking to expand their market.