Standard Form of Contract: A Case Study of Flipkart

Sahil Jain & Pradyumna Kibe ((Students of Law, Institute of Law, Nirma University, Ahmedabad)).

Standard Form Contracts are agreements that employ standardized, non-negotiated provisions, usually in pre-printed forms.  These are sometimes referred to as “boilerplate contracts,” “contracts of adhesion,” or “take it or leave it” contracts. The terms, often portrayed in fine print, are drafted by or on behalf of one party to the transaction – the party with superior bargaining power who routinely engages in such transactions.  With few exceptions, the terms are not negotiable by the consumer ((What are Standard Form Contracts)). They are basically used where the seller cannot enter into a contract with everyone and each one wants the contract according to him/her. It means when the party is having numerous transaction to make then Standard Form Contract comes into picture. Like in the railway sector, there are same terms and conditions for everyone. It is a contract of adherence.

There are two issues which arise from this contract. Firstly, the parties are not at parity and seller is having the advantage and is one step forward unlike buyer who has no other option other then accepting it or leaving it. Secondly, there is no bargaining power available to weaker party i.e. buyer. He /She cannot negotiate with the seller. Lord Denning MR in Thornton vs. Shoe Lane Parking Ltd. (([1971] 2 QB 163: (1971) 1 All ER (CA).)), commented on Standard Form Contracts as;

“He cannot alter those terms or even discuss them; they are there for him to take or leave. He therefore does not undertake the laborious and profitless task of discovering what the terms are.”

Flipkart, a company registered in Singapore, was founded back in 2007 by IIT-D alumni and former Amazon employees Sachin Bansal and Binny Bansal. The trend of e-commerce was not developed at that point of time, while, in the other parts of the world it was well settled. Flipkart started its business with selling books online, same as what Amazon did. With the time, as the internet users in India were still increasing with great speed, Flipkart became the most reliable place for online shopping. The company works on a marketplace model, where sellers and buyers can meet online and transact with each other, it wasn’t able to come in direct retailing as foreign players were not allowed in retail market and Flipkart, a company registered in Singapore and most of their shareholders were of abroad. Flipkart is mainly known for its customer friendly approach and hence is the market-leader and reliable e-commerce websites.

COMPARISON TO PROTECTIVE DEVICES

As standard form contracts have evolved as an instrument for making the transactions on a large level, faster and easier, it has led to the exploitation of weaker parties, mostly buyers or the receiver of services.  The court, therefore has on various occasions has evolved protective devices to look after consumers. Till now, there has been a total no. of seven devices by developed. They are:

  1. Reasonable notice
  2. Notice should be contemporaneous with the contract
  3. Theory of fundamental breach
  4. Strict construction
  5. Liability in tort
  6. Unreasonable terms
  7. Exemption clauses and third parties

These protective devices are subject to study in a standard form contract because if any breach arises, the compensation should be claimable.

Reasonable notice

In Henderson vs. Stevenson (([1875] 2 Sc & Div 470: (1875) 32 LT 709 (HL).)), it was held that there should be a notice to the other party accepting the contract about the terms and conditions. On the e-commerce websites or on the softwares of common use, there is always some tab like ‘I Accept’. When the website or the software firm takes one to such a page, the condition of reasonable notice is fulfilled.

When, a customer gets involved in a transaction with Flipkart, before confirming the order it shows a similar tab as other websites and the words ‘Terms of Use’ and ‘Privacy Policy’ are respectively hyperlinked. So, it can be hence be confirmed that Flipkart gives a chance to its user to go through ‘Terms of Use’ and ‘Privacy Policy’ before getting bound to a legal agreement.

Notice should be contemporaneous with the contract

This means that whenever the terms & conditions are produced before the acceptor, it should be before the contract is formed. The acceptor does not have power to bargain the terms and conditions, so then, they should be always being provided beforehand otherwise it would result to great injustice to the acceptor and it will break the essence of contract which is the ‘Principle of Party’s Autonomy’.

In our case, Flipkart provides the Terms of Use before getting into any kind of transaction with the buyer. But, when it comes to Flipkart stating in its para 7 of the Terms of Use document that,

“ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS UNDER THESE TERMS OF USE, SO PLEASE READ THE TERMS OF USE CAREFULLY BEFORE PROCEEDING. By impliedly or expressly accepting these Terms of Use, You also accept and agree to be bound by Flipkart Policies (including but not limited to Privacy Policy available on http://www.Flipkart.com/s/privacypolicy) as amended from time to time.

This does not amount to contemporaneous notice provided by Flipkart. As, no one can read the documents like Terms of Use and Privacy Policy before accessing the website.

Theory of fundamental breach

In contract there are some duties (fundamental duties) which are there in contract. They are treated as the heart and soul of the contract. If they are not there then the whole contract is a waste and is of no use.

Taking the above statement into consideration Flipkart is not taking it into its account. In one of the terms and conditions for the Flipkart i.e. Platform for Transaction and Communication (point number 4 of terms and conditions), they are not and cannot be a party to or control in any manner any transaction.

  1. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such commercial/contractual terms between the Buyers and Sellers.
  2. Flipkart is not taking responsibility for any non-performance or breach of any contract entered into between Buyers and Sellers. Flipkart cannot and does not guarantee that the concerned Buyers and/or Sellers will perform any transaction concluded on the Website. Flipkart is not even mediating or resolving any dispute or disagreement between Buyers and Sellers.
  3. Flipkart holds no right, title or interest over the products nor Flipkart have any obligations or liabilities in respect of such contract entered into between Buyers and Sellers. Flipkart even take no responsibility for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.
  4. At no time Flipkart hold any right, title or interest over the products nor shall Flipkart have any obligations or liabilities in respect of such contract.

Flipkart is even not having responsibility for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.

It means there fundamental duty to control a transaction is totally against this theory i.e. the Theory of Fundamental Breach. They are not ready to take the responsibility of the transaction in any manner. It’s totally against the exception for the standard form of contract.

Strict construction:

In many cases, to benefit the weaker party, the courts of justice have regularly strictly interpreted the exemption clauses. In cases, when there lies a single point of ambiguity the courts gives its favour to the weaker party. It is also very important to give favour of such ambiguity to the weaker party as it is like a flank kept upon by the proposer in its standard form contract and especially in the exemption clause, which can be considered as a most important clause in any contract.

Flipkart also mentions many exemption clauses in its documents. Can there be flank open? But though going after strict interpretation of exemption clause, the theory of fundamental breach can also be taken into consideration.

Liability in tort:

Even when there can be nothing found in exemption clause, one can tend towards moving to claim of tortious liability in its non-contractual liability. For example, as happened in White vs. John Warrick & Co. Ltd. (([1953] 2 All ER 1021: (1953) 1 WLR 1285 (CA).)), the defendants though were exempted by its contractual terms, but the court gave the compensation to plaintiff under the tort of negligence.

Exemption clauses and third parties:

This says that one third can be held liable for the contract between the two contracting parties. The same is claimed by Flipkart in its documents as when a buyer buys a product from Flipkart, there is no contract between Flipkart and buyer but instead a contract is formed between the buyer and seller. The Flipkart only acts as a platform for the buyers and sellers to interact.

Under heading of ‘Platform for Transaction and Communication’ all the clauses exempts Flipkart from any liability arising out of the transaction between the buyers and sellers. Although it is neither a party to contract, nevertheless it owes a responsibility if any breach occurs.

COMPARED TO OTHER PLATFORMS

There have been many complaints to Flipkart about them not taking the responsibility of the transactions performed by the sellers. But as Flipkart in its Terms of Use clearly mentions that it is just a platform for buyers and sellers to come up and transact it with each other, the Flipkart does not get in contact with any of the buyer and exempts itself from any liability occurring therein.

Under heading of ‘Platform for Transaction and Communication’ all the clauses exempts Flipkart from any liability arising out of the transaction between the buyers and sellers. Considering it holding as an important market player and leader of e-commerce industry, making itself off the hook it is not practising customer friendly behaviour.

One customer of the same website placed an order for a combo of wireless mouse and keyboard and was given an estimated delivery time of 10 days. Until the 8th day of delivery, his order was not shipped. After contacting Flipkart’s support, he was assured that the order would be delivered by estimated date. The order was not delivered till 13th day and it was cancelled automatically by the company and refund was directed to the wallet service of the same person. The customer support replied that the product was out of stock and hence was not able to be delivered, while the product was still in stock as was shown on the website. The company got its hand out and said that they could not help the customer as the seller didn’t have the product ((Flipkart screwed me over, Here’s How They Could Stick It To You As Well)). Now, where is the company has gone here? Why should Flipkart be exempted now from the liability? There lies a responsibility of the company, in this competitive market not exempt itself from the liability and practice customer friendly behaviour.

There also has been complaint against Flipkart that they cancel the order by themselves if there is price hike of the same product scheduled next day. Now, again of Flipkart is not getting into the contract, how can they cancel it? Is the customer again to be fooled by the sellers and the marketplace? ((Ibid))If Flipkart is working as a marketplace, the buyers pay the sellers consideration through this platform; shouldn’t Flipkart be equally responsible to the buyers? Yes, it should be made liable otherwise the standard form contracts made between visitors and the marketplace would not hold strong.

When, Flipkart is compared to its competitor Amazon, Amazon has more of a customer friendly approach and accepts its responsibility as a market place. If there has been a refund problem on Amazon i.e. the seller does not make the refund in 3 days, customer can avail ‘A to Z Guarantee Claim’ in which Amazon to promise to stand with the customer to help him recover the refund ((Terms, Contract Law, Consumer Rights in e-commerce)). While on the other hand Flipkart in its clause 3 says ‘Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between Buyers and Sellers.

Kiss of Love and its legality

Vishnu S Warrier

Well, recently it was observed in the southern state of Kerala that, a group of volunteers comes up with a new mode of protest against the moral policing called “Kiss of Love”. Subsequently said form of protest gathered support from educational institutions outside of Kerala including University of Hyderabad, JNU Delhi, IISER Kolkata, Pondicherry University, IIT Madras and IIT Bombay. Students from Jadavpur University and Presidency University, Kolkata have organised similar protests against moral policing in Kolkata on 5 November 2014.

Kiss of Love is a non-violent protest against moral policing which started in Kerala and later spread to other parts of India. Kiss of Love protest was sparked off in October 2014 when a leading Malayalam news channel, telecast an exclusive report on alleged immoral activity at the parking space of Downtown Cafe in Kozhikode. The video showed a young couple kissing and hugging each other. Following the report, a mob of attackers, vandalized the cafe. Following this, Rahul Pasupalan, a short film maker from Kerala, and a group of friends had started the Facebook page ‘Kiss of Love”. Activists from all over Kerala decided to protest against the series of moral policing incidents by organizing a public event at Marine Drive beach on November 2 in Kochi.

Legality of Kiss of Love

Now let’s come to the legality of the issue. The major issues here are “Do you have a right to Kiss and Hug”? Of course you have right to Kiss and Hug. But, whether such an act can be done in a Public place? If such an act is conducted in a public place whether it can be interpreted as an “obscene act”?

It could be a possible argument by the Kiss of Love activists that, Right to Kiss and Hug is guaranteed as the Fundamental Right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. However, author would like to counter such an argument by referring to Article 19 (2) of the Indian Constitution, which imposes reasonable restrictions on the Fundamental Right to freedom of speech and expression.  Article 19 (2) says as follows;

Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right a publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).

Further, under Section 294(a) of Indian Penal Code, “Whoever, to the annoyance of others, does any obscene act in any public place shall be punished with imprisonment for a term which may extend to three months, or with fine, or with both”. However, Indian Penal Code does not define the word “obscene”; hence it is interpreted differently by different authorities. Apex court in S. Khushboo v. Kanniammal & Anr ((Decided April 28, 2010)), observed that “obscenity” should be gauged with respect to contemporary community standards.”

With regards to kissing and hugging in public places, the Supreme Court of India has made it clear that ‘no case can be made out of two people consensually hugging and/or kissing. Supreme Court’s verdict came in response to a petition filed by actor Richard Gere to quash the arrest warrant issued by a Jaipur court. The arrest warrant was issued after the actor had taken Shilpa Shetty in his embrace and kissed her on the cheek at an AIDS awareness programme. A verdict by Delhi High Court has also made it clear that kissing in public is not a criminal offence.

Re, to apex court’s observation in Chandrakant Kalyandas Kakodar v. The State of Maharashtra ((1970 AIR 1390))that, “standards of contemporary society in India are fast changing,” and the regarding the “contemporary community standards,” the Supreme Court further noted that it is not “the standard of a group of susceptible or sensitive persons” that can be held as the standard of the community ((Aveek Sarkar v. State of West Bengal, Decided on February 3, 2014)). This is equally applicable to the Kiss of Love activists as well as those who claim themselves as the representatives of moral policing.

However, in a country like India, Kiss of Love and other similar activities are a question of morality and culture, and “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy ((S. Khushboo v. Kanniammal & Anr, Decided April 28, 2010)).”

Though there are various judgments in permitting two people to consensually hug and/or kiss each other, keeping in mind the number of instances of moral policing, it is high time to define the term “obscene” or “obscenity”. Courts, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

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CLAT 2015 to be held on May 10, 2015

Common Law Admission Test which is popularly known as CLAT for admission to the under graduate and post graduate courses offered by the National Law Schools for the academic year 2015 – 16 will be held on May 10, 2015. Initial admission notification with respect to CLAT 2015 will be published by the CLAT Core Committee on December 25 on the official website www.clat.ac.in.

Admissions to under graduate and post graduate courses by the National Law Schools or National Law Universities are done only through CLAT Examination conducted by the Core Committee. Students planning to pursue their career in law shall apply for the CLAT online within the prescribed time schedule.

Age restriction remains unchanged for CLAT

As reported in the Times of India, the 20 year age limit to appear in Common Law Admission Test (CLAT) remains unaffected by the Allahabad High Court judgment of May 2014, in which the court had noted there can be no such restriction since Bar Council of India (BCI) had already scrapped maximum age limit for undergraduates.

CLAT to go online

The Common Law Admission Test popularly known as CLAT for the academic year 2015 – 16 under the supervision of Ram Manohar Lohiya National Law University (RMLNLU) will be conducted online. Common Law Admission Test is an all India entrance examination conducted on rotation by National Law Universities (NLUs) for admissions to their under-graduate and post-graduate degree programmes.

Ram Manohar Lohiya National Law University (RMLNLU) will conduct this year’s Common Law Admission Test (CLAT) exam online. This year onwards, right from filling up the forms to the final fee submission, everything will be online. This step is taken in order to ensure efficiency and transparency in the examination process.

Ownership and control of material resources of the community

Recent trends in Judiciary

Dr. Kondaiah Jonnalagadda, Assistant Professor, NLIU, Bhopal

Ownership and Control of the Material resources of the Community is to be distributed according to the policy of the state to sub-serve the common good, as it is given in Article 39 of Constitution of India. State also acts as trusty of public property. Exploration and Exploitation of natural resource, public property should identify the beneficiary through the policy. The beneficiary should not be a private party, multinational company, or any other body corporate; it is always people of India.  Identification of beneficiary and distribution of resources is one of the primary duty of state while distributing natural resources.

Any means of Jobbery, Nepotism, and arbitrariness in distribution of natural resources is violation of Article 14 of the constitution of India. The existing of the methods of distribution of natural resources will destroy the statehood, because of Corporates enjoy benefits and profits, whereas the property belong to common man.

With this back drop, the author will analyze in this article the various judicial precedents pronounced by the Supreme Court of India, to protect the property of common man and acted as trustee of property, though it is the duty of executive.

Object of Part-IV of the constitution

The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and make liberty available to all. The purpose of Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about non violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of the society. It aims at making the Indian masses free in the positive sense. Without faithfully implementing Directive Principles, it is not possible to achieve the Welfare Sate contemplated by the Constitution ((See Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225)).

Directive Principles are also fundamental. They can be effective if they are to prevail over Fundamental Rights of a few in order to sub-serve the common good and not allow the economic system to the common detriment ((Ibid Per Ray J)). Our Constitution aim at bringing about a synthesis between “Fundamental Rights” and “Directive Principles of State Policy”, by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they from the core of the Constitution. Together, not individually, they constitute its true conscience ((Ibid Per Chandrachud, J)).

Judicial Trends from 1980-2014

The Supreme Court of India  in Kasturi Lal Lakshmi Reddy and Ors.v. State of J and K and Anr., (([1980] 4 SCC 1))had said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging setting up of industries within the State, the State was not bound to advertise and tell the people that it wanted a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. It was also observed that if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose.

In Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (([1987] 2 SCC 295))this Court had observed that ordinary rule for disposal of State-owned or public-owned property, was by way of public auction or by inviting tenders but there could be situations where departure from the said rule may be necessitated but then the reasons for the departure must be rational and should not be suggestive of discrimination and that nothing should be done which gives an appearance of bias, jobbery or nepotism. This principle was echoed again in Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (([1988] 1 SCC 166))wherein this Court reiterated that the public property owned by the State or by an instrumentality of State should be generally sold by public auction or by inviting tenders. It was emphasized that this rule has been insisted upon not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities and to obviate the factors like bias, favoritism or nepotism. Clarifying that this is not an invariable rule, the Court reiterated that departure from the rule of auction could be made but then it must be justified.

The above principle is again stated by this Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors., (([1997] 7 SCC 592))in which this Court said that distribution of largesse by inviting open tenders or by public auction is desirable but it cannot be held that in no case distribution of such largesse by negotiation is permissible.

In Netai Bag and Ors.v. State of West Bengal and Ors. (([2000] 8 SCC 262))this Court said that when any State land is intended to be transferred or the State largesse is decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people as that would be a sure method of guaranteeing compliance with mandate of Article 14 of Constitution but non-floating of tenders or not holding public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner.

In VillianurIyarkkaiPadukappuMaiyam v. Union of India and Ors., the matter before this Court related to the selection of contractor for development of the port of Pondicherry without floating a tender or holding public auction. The Court said that where the State was allocating resources such as water, power, raw materials, etc., for the purpose of encouraging development of the port, the State was not bound to advertise and tell the people that it wanted development of the port in a particular manner and invite those interested to come up with proposals for the purpose (([2009] 7 SCC 561)).

In Centre for Public Interest Litigation and Ors. v. Union of India and Ors., (([2012] 3 SCC 1))this Court stated that a duly publicised auction conducted fairly and impartially was perhaps the best method for alienation of natural resources lest there was likelihood of misuse by unscrupulous people who were only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. Court laid emphasis that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.

The Constitution Bench clarified that the statement of law in Centre for Public Interest Litigation and Ors. v. Union of India and Ors. (([2012] 3 SCC 1))that while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction was confined to the specific case of spectrum and not for dispensation of all natural resources. The Constitution Bench said that findings of this Court in Centre for Public Interest Litigation and Ors. v. Union of India and Ors.  were limited to the case of spectrum and not beyond that and that it did not deal with the modes of allocation for natural resources other than spectrum.

A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents. Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.

Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in KasturiLal’s case, discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.

In Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (([2012] 10 SCC 1)): the Constitution Bench, in the main judgment, thus, concluded that auction despite being a more preferable method of alienation/allotment of natural resources cannot be held to be constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate. The Court also opined that auction as a mode cannot be conferred the status of a constitutional principle. While holding so, the Court held that alienation of natural resources is a policy decision and the means adopted for the same are, thus, executive prerogatives. The Court summarized the legal position as under:

“To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-a-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down ((ibid)).”

Regard being had to the aforesaid precepts, we (Supreme Court) have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.

Common Good and Distribution of Natural Resources

The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on “distribution” built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing “distribution” is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word “distribution”. Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the “common good”.

It can thus, be seen from the aforequoted paragraphs that the term “distribute” undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in Article 39(b). There cannot, therefore, be a cavil that “common good” and “larger public interests” have to be regarded as constitutional reality deserving actualisation.

The norm of “common good” has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best sub-served is not a matter that can be measured by any constitutional yardstick-it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be sub-served. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.

Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximisation, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies-Article 14 does not predefine any economic policy as a constitutional mandate. Even the mandate of Article 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term “distribution”, suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to sub-serve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.

Public Trust Doctrine in Economic Laws

Though the Public Trust doctrine is used in environmental law protection, it is also used in economic laws as protect the interest of stake holders. The Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the Bench observed as follows ((ibid)):

“While distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection…”

The learned Judges adverted to the ‘public trust doctrine’ as enunciated in The Illinois Central Railroad Co. v. The People of the State of Illinois ((36 L ED 1018 : 146 U.S. 387 (1892); M.C. Mehta v. Kamal Nath and Ors. (1997) 1 SCC 388; JamshedHormusjiWadia v. Board of Trustees, Port of Mumbai and Anr. (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P. and Ors: (2006) 3 SCC 549; Fomento Resorts and Hotels Limited and Anr. v. Minguel Martins and Ors. (2009) 3 SCC 571 and Reliance Natural Resources Limited v. Reliance Industries Limited (2010) 7 SCC 1))and held ((ibid)):

. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.

Referring to the decisions of this Court in, the Bench ultimately concluded thus:

In conclusion, It was upheld that   the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good ((AkhilBhartiyaUpbhokta Congress v. State of Madhya Pradesh and Ors. (2011) 5 SCC 29 and SachidanandPandey and Anr. v. State of West Bengal and Ors. (1987) 2 SCC 295)).

Conclusion

On the basis of various judicial pronouncements and policies of state, it is submitted that the state is the trustee of the public property. However, it can be seen from the recent highlighted scams like, spectrum, Coalgate and others etc. Public property is being used for the benefit of private parties and not the common good. In these time, Courts interference protected the interest and object of Directive principles of state policy, where as it is the duty of executive to uphold and protect the interest of public property and natural resources at large.

It submitted that it is the judicial justice which prevented private parties to enjoy the benefits of public property by using the means of jobbery, nepotism, and bias.   It is also seen from the above cases, that the private companies and MNC’s enjoyed the benefits and profits over a period of two decades due to the licenses/leases given by government. After cancelling all these licenses/ leases the state will be allocating the same to private parties, however, it has to follow mandate given by the Supreme Court of India.

Legal challenges on account of domain names

Prof. (Dr.) Sreenivasulu N.S ((Professor of Law, National University of Juridical Sciences, Kolkata, Chairperson, MHRD, Government of India, and Formerly Founder and Chairman,Department of Studies and Research in Law, Karnataka State Open University, Mysore, Faculty of Law at National Law School, Bangalore and University of Mysore, Karnataka.))and Jagadish. A.T ((Faculty of Law, JSS Law College, Autonomous, Mysore and Research Scholar, Department of Studies and Research in Law, Karnataka State Open University, Mysore, Karnataka.)).

Domain names are assets of cyberspace ((The electronic medium of computer networks in which online communication takes place. The word “cyberspace” is credited to William Gibson, who used it in his book, Neuromancer, written in 1984. Gibson defines cyberspace as “a consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts… A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data” (New York: Berkley Publishing Group, 1989), pp. 128)). The quintessence of domain name lies in the fact that, with growth of internet the magnitude of domain name have sky-rocketed. No doubt from birth of any technology followed by its growth it faces challenges and obstacles, so in case of domain names. With the latest enter to IPv6 (Internet protocol version 6) 128-bit integer addresses to be assigned to hosts, or systems, bringing up the number of allowable addresses to a whopping 340 trillion, trillion, trillion which provides for infinite plot of ground for World Wide Web to grow in ((The Hindu, Thursday, June7, 2012 Karnataka edition, Bangalore)). The corporations now have lot more freedom to define their addresses on the internet. The new internet protocol is considered to the unique address for every human being on the planet earth. Domain names are considered has one of the most valuable assets of any business concern. A domain name on the cyberspace is considered to be the counterpart of a trademark ((A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.))in the conventional field of business and commerce.

Domain names have become the backbone of internet revolution. The potential of the internet in creating an information superhighway has acquired a distinct commercial viability because of the advent of domain names. Section 45 of the Lanham Act ((The Lanham Act, 15 U.S.C. §§ 1051 et seq., was enacted by Congress in 1946 based on the power granted to it by the Commerce Clause.  It provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.  The scope of the Lanham Act is independent of and concurrent with state common law. See http://www.law.cornell.edu/wex/lanham_act    last visited on 10-03-2014)), defines Domain name as “any alphanumeric designation, which is registered with or assigned by any Domain name registrar, Domain name registry or other domain name registration authority as a part of electronic address on the internet.” Though domain names serve a purely technological function of locating website in cyberspace, the desire for prestigious business addresses in cyberspace has created a rush in the business name of the entity ((Edited by Manu Law Shahalia, Perspectives in IP Law- Many sides to a coin, University Law Publishing company, 2003 Edition.)).

In this article there is an attempt to highlight the legal challenges on account of domain names, and the possible solutions to overcome those challenges, legal protection that can be afforded to the domain names.

Domain names functions as the address for a web site, and disputes over domain names have become more common and more intense as the popularity of the Internet grows ((Available at http://www.bitlaw.com/internet/webpage.html  last visited on 22-02-2014)).Domain names became a tradable commodity, a market resource object being contended by interested parties. Legal issues on domain name have arisen, and accordingly more and more disputes between domain name holders and complainants have been taken before relative courts all over the world. There are conflicting decisions among different jurisdictions and even within the same nation. Wildly divergent levels of technical comprehension seem to have led to somewhat inconsistent justifications. However, it is clear that in domain name litigations the judicial decision making process is becoming a globalized event, and domain name litigation will have a significant impact on the conflicts involving all manner of e-commerce issues ((http://lawyer.20m.com/English/articles/domainname.htm last visited on 21-01-2014)).

Background and History of Internet Domain names

The Internet ((The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (often called TCP/IP, although not all applications use TCP) to serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of electronic, wireless and optical networking technologies. The Internet carries an extensive range of information resources and services, such as the inter-linked hypertext documents of the World Wide Web (WWW) and the infrastructure to support email. http://en.wikipedia.org/wiki/Internet visited on 07-01-2014

The internet is defined as a “global network connecting millons of computer”. Lee, Christopher, The Development of Arbitration in the Resolution of Internet Domain Name Dispute,7Rich. J.L.& teCH.2, page.14,(2000).))is often described as a “network of networks” because it is not a single physical entity but, in fact, hundreds of thousands of interconnected networks linking many millions of computers around the world. Computers connected to the Internet are identified by a unique Internet Protocol ((IP (Internet Protocol) is the primary network protocol used on the Internet, developed in the 1970s. On the Internet and many other networks, IP is often used together with the Transport Control Protocol (TCP) and referred to interchangeably as TCP/IP. IP supports unique addressing for computers on a network. Most networks use the Internet Protocol version 4 (IPv4) standards that features IP addresses four bytes (32 bits) in length. The newer Internet Protocol version 6 (IPv6) standard features addresses 16 bytes (128 bits) in length))number that designates their specific location, thereby making it possible to send and receive messages and to access information from computers anywhere on the Internet. Domain names were created to provide users with a simple location name, rather than requiring them to use a long list of numbers. IP addresses are binary numbers, but they are usually stored in text files and displayed in human-readable notations, such as 172.16.254.1 (for IPv4), and 2001:db8:0:1234:0:567:8:1 (for IPv6). Top Level Domains ((A top-level domain (TLD) is one of the domains at the highest level in the hierarchical Domain Name System of the Internet. The top-level domain names are installed in the root zone of the name space))appear at the end of an address and are either a given country code, such as .in or .uk, or are generic designations Generic Top Level Domains (gTLDs) ((A gTLD (generic top-level domain name) is the top-level domain name of an Internet address that identifies it generically as associated with some domain class, such as .com (commercial), .net (originally intended for Internet service providers, but now used for many purposes), .org (for non-profit organizations, industry groups, and others), .gov (U.S. government agencies), .mil (for the military), .edu (for educational institutions); and .int (for international treaties or databases and not much used). For example, in the domain name, www.ibm.com, .com is the chosen gTLD. In addition to the gTLD, there is the ccTLD (country code top-level domain name) that identifies a specific national domicile for an address. (For example .in for India).)), such as .com, .org, .net, .edu, or .gov. The Domain Name System (DNS) is the distributed set of databases residing in computers around the world that contain the address numbers, mapped to corresponding domain names. Those computers, called root servers, must be coordinated to ensure connectivity across the Internet ((Lennard G. Kruger, Internet Domain Names: Background and Policy Issues October 28, 2009 http://www.au.af.mil/AU/AWC/AWCGATE/crs/97-868.pdf  last visited on 07-05-2014)).

The Internet originated with research funding provided by the Department of Defense Advanced Research Projects Agency ((The Defence Advanced Research Projects Agency (DARPA) is a unique research organization established to maintain the U.S. military’s technological pre-eminence. Essentially, it’s the intellectual sandbox of the Defence Department, freed from many of the constraints imposed on other agencies so it can pursue riskier, more innovative research. Over the years, DARPA has helped develop technologies that have also worked their way into the civilian world, including the forerunner of the Internet. http://www.allgov.com/departments/department-of-defense/defense-advanced-research-projects-agency-darpa?agencyid=7159 visited on 18-02-2014))to establish a military network. As its use expanded, a civilian segment evolved with support from the National Science Foundation ((The National Science Foundation (NSF) is an independent federal agency created by Congress in 1950 “to promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense.” With an annual budget of about $6.9 billion (FY 2010), we are the funding source for approximately 20 percent of all federally supported basic research conducted by America’s colleges and universities. In many fields such as mathematics, computer science and the social sciences, NSF is the major source of federal backing. http://www.nsf.gov/about/ visited on 26-04-2014.))and other science agencies. While there were no formal statutory authorities or international agreements governing the management and operation of the Internet and the DNS, several entities played key roles in the DNS. For example, the Internet Assigned Numbers Authority ((The Internet Assigned Numbers Authority (IANA) is a department of ICANN responsible for coordinating some of the key elements that keep the Internet running smoothly. Whilst the Internet is renowned for being a worldwide network free from central coordination, there is a technical need for some key parts of the Internet to be globally coordinated – and this coordination role is undertaken by IANA. http://www.iana.org/about/ visited on 16-05-2014.)), which was operated at the Information Sciences Institute/University of Southern California under contract with the Department of Defense, made technical decisions concerning root servers, determined qualifications for applicants to manage country code TLDs, assigned unique protocol parameters, and managed the IP address space, including delegating blocks of addresses to registries around the world to assign to users in their geographic area.

National Science Foundation was responsible for registration of non-military domain names, and in 1992 put out a solicitation for managing network services, including domain name registration. In 1993, NSF signed a five-year cooperative agreement with a consortium of companies called InterNic. Under this agreement, Network Solutions Inc. ((Network Solutions maintains the Internet Number Registry and manages the domain root server for the entire internet… From experience, we have learned the importance of maintaining up-to-date zone files and making them available for propagation throughout the world. http://www.livinginternet.com/i/iw_mgmt_netsol.htm  last visited on 14-05-2014)), a Herndon, VA, engineering and management consulting firm, became the sole Internet domain name registration service for registering the .com, .net, and .org. gTLDs.

After the imposition of registration fees in 1995, criticism of NSI’s sole control over registration of the gTLDs grew. In addition, there was an increase in trademark disputes arising out of the enormous growth of registrations in the .com domain. There also was concern that the role played by IANA lacked a legal foundation and required more permanence to ensure the stability of the Internet and the domain name system. These concerns prompted actions both in the United States and internationally.

An International Ad Hoc Committee (IAHC), a coalition of individuals representing various constituencies, released a proposal for the administration and management of gTLDs on February 4, 1997. The proposal recommended that seven new gTLDs be created and that additional registrars be selected to compete with each other in the granting of registration services for all new second level domain names. To assess whether the IAHC proposal should be supported by the U.S. government, the executive branch created an interagency group to address the domain name issue and assigned lead responsibility to the National Telecommunications and Information Administration ((NTIA is the Executive Branch agency that is principally responsible for advising the president on telecommunications and information policy issues. NTIA’s programs and policymaking focus largely on expanding broadband Internet access and adoption in America, expanding the use of spectrum by all users, and ensuring that the Internet remains an engine for continued innovation and economic growth.))of the Department of Commerce (DOC). On June 5, 1998, DOC issued a final statement of policy, “Management of Internet Names and Addresses.” Called the White Paper, the statement indicated that the U.S. government was prepared to recognize and enter into agreement with “a new not-for-profit corporation formed by private sector Internet stakeholders to administer policy for the Internet name and address system ((Management of Internet Names and Addresses, National Telecommunications and Information Administration, Department of Commerce, Federal Register, Vol. 63, No. 111, June 10, 1998, 31741)).” In deciding upon an entity with which to enter such an agreement, the U.S. government would assess whether the new system ensured stability, competition, private and bottom-up coordination, and fair representation of the Internet community as a whole.

The White Paper endorsed a process whereby the divergent interests of the Internet community would come together and decide how Internet names and addresses would be managed and administered. Accordingly, Internet constituencies from around the world held a series of meetings during the summer of 1998 to discuss how the New Corporation might be constituted and structured. Meanwhile, IANA, in collaboration with NSI, released a proposed set of bylaws and articles of incorporation. The proposed new corporation was called the Internet Corporation for Assigned Names and Numbers ((ICANN (Internet Corporation for Assigned Names and Numbers) is the private (non-government) non-profit corporation with responsibility for IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions, the services previously performed by the Internet Assigned Numbers Authority (IANA). (ICANN is usually pronounced EYE-can, as in “I can at least try to manage the Internet.”). )). After five iterations, the final version of ICANN’s bylaws and articles of incorporation were submitted to the Department of Commerce on October 2, 1998. On November 25, 1998, DOC and ICANN signed an official Memorandum of Understanding (MOU), whereby DOC and ICANN agreed to jointly design, develop, and test the mechanisms, methods, and procedures necessary to transition management responsibility for DNS functions—including IANA—to a private-sector not-for-profit entity.

On September 17, 2003, ICANN and the Department of Commerce agreed to extend their MOU until September 30, 2006. The MOU specified transition tasks which ICANN agreed to address. On June 30, 2005, Michael Gallagher, then-Assistant Secretary of Commerce for Communications and Information and Administrator of NTIA, stated the U.S. government’s principles on the Internet’s domain name system. Specifically, NTIA stated that the U.S. government intends to preserve the security and stability of the DNS, that the United States would continue to authorize changes or modifications to the root zone, that governments have legitimate interests in the management of their country code top level domains, that ICANN ((Besides providing technical operations of vital DNS resources, ICANN also defines policies for how the “names and numbers” of the Internet should run.))is the appropriate technical manager of the DNS, and that dialogue related to Internet governance should continue in relevant multiple fora ((See http://www.ntia.doc.gov/ntiahome/domainname/USDNSprinciples_06302005.pdf  last visited on 02-05-2014)).

On September 29, 2006, DOC announced a new Joint Project Agreement (JPA) with ICANN which was intended to continue the transition to the private sector of the coordination of technical functions relating to management of the DNS. The JPA extended through September 30, 2009, and focused on institutionalizing transparency and accountability mechanisms within ICANN. On September 30, 2009, DOC and ICANN announced agreement on an Affirmation of Commitments (AoC) to “institutionalize and memorialize” the technical coordination of the DNS globally and by a private-sector-led organization ((Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for Assigned Names and Numbers, September 30, 2009, available at http://www.ntia.doc.gov/ntiahome/domainname/Affirmation_of_Commitments_2009.pdf last visited on 02-06-2014)). The AoC affirms commitments made by DOC and ICANN to ensure accountability and transparency; preserve the security, stability, and resiliency of the DNS; promote competition, consumer trust, and consumer choice; and promote international participation ((http://www.fas.org/sgp/crs/misc/97-868.pdf  last visited on 06/04/2014)).

Legal challenges on account of domain names –contractual dispute

The formation of contract in cyberspace are fascinating, while rules on the formation of contracts are clear in the physical world, there are ambiguities in the electronic contracts. The Indian Contract Act, 1872 applies to electronic contract (e-contract) also called as ‘online contract’, which is entered in India and recognised in section10A of the Information Technology Act-2000 ((Section 10A of The Information Technology Act, 2000, Validity of contracts formed through electronic means: – Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.)). The signature used in the physical transactions is replaced by electronic signature in the e-contract and written document (record) is replaced by electronic record. The main issue involving the transmission of a message through different electronic mechanisms such as electronic mail is when the message was considered sent or received. For sending or dispatch, it is proposed that it occurs when the message enters a system outside the control of the sender. For the receipt, a system of designating specific electronic mailboxes as receiving points is proposed. A message is deemed received by such designated mailboxes when it enters the system. If there is no designation, it is also to a mailbox other than designated one; it is received when the recipient retrieves the message. The time and place of contract is also an issue in e-contract formation. There is ambiguity in certain issues such as; the proposal is to designate the place of dispatch and receipt as the regular place of business or residence of the sender and recipient respectively, regardless on the actual place of receipt. The UNCITRAL Model Law on Electronic Commerce ((The Model Law on Electronic Commerce (MLEC) purports to enable and facilitate commerce conducted using electronic means by providing national legislators with a set of internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce. In particular, it is intended to overcome obstacles arising from statutory provisions that may not be varied contractually by providing equal treatment to paper-based and electronic information. Such equal treatment is essential for enabling the use of paperless communication, thus fostering efficiency in international trade. It was adopted on 12 June 1996 (additional article 5 bis adopted on 1998).))can be adopted to achieve a compromise on the formation of international digital contracts ((Rodney D Ryder, Introduction to internet law & policy, Wadhwa & Company, Nagpur, I edition 2007)).

The authentication by electronic means through digital signature (now electronic signature) ((Section 2 (ta) “electronic signature” means authentication of any electronic record by a subscriber by means of the electronic technique specified in the second schedule and includes digital signature Information Technology (Amendment) Act 2008.))has been made binding on the parties. But when it is a matter of enforcement of e-contracts the practical difficulties evolve. In India since we are at the embryonic stage of e-contracts there requires a clear rules and regulations and its application. The technical intricacies and the dynamic processes involved therein call for an analysis of the plausible principles that may govern online contracts ((Edited by S.K.Verma and Raman Mittal, Legal Dimensions of Cyberspace, Indian Law Institute, New Delhi, 2004, Article by:- Raghavendra S.Srivatsa and Sukruta R., Online Contracts)). The arguable question is whether an online contract can be legally valid and enforceable? For a solution it is to be noted that how the offer originated and communicated, and its acceptance, because a contract is formed by an enforceable agreement. However there are new developments in online contracts, say the application of classic rule of the law of contract that normally applies in a situation where the parties are at a distance and the communication of offer and acceptance is not contemporaneous is what is popularly referred to as the ‘mailbox rule’ or the ‘postal rule’. ((The essence of the rule is that acceptance of an offer is binding qua the offeree once it leaves his control, whether or not it has been received or is within the knowledge of the offeror.))There are other issues such as choice of law and jurisdiction, capacity of parties, free consent, formalities in writing, signature and delivery etc. The online contract no doubt holds the key to the future of e-commerce. In an attempt to ensure confidence, many international organisations have proposed treaties, model laws and protocols to encourage certainty and stability for these international electronic commercial practices and in relation to laws of contract ((These organizations have included the organization for Economic Cooperation and Development (OECD); the United Nations; the Asia-Pacific Economic Cooperation forum (APEC); the World Trade Organization (WTO) and the UN Commission on International Trade Law (UNCITRAL).)). The UNCITRAL Model Law of Electronic Commerce (Model Law) has proved the most popular, with significant international acceptance by national legislatures.

Formation of e-contract through websites

There are three types of e-contract, clickwrap, browsewrap, shrinkwrap contracts.

On e-commerce websites a user is asked to register where he fills in his personal particulars and contact information. The user is asked to read the terms and conditions of service, privacy policy and disclaimers mentioned on website and then click on ‘I agree’ button such user avails any service or purchases any products advertised on the website. When user clicks on ‘I agree’ button, he is deemed to have read and consented to all the terms and conditions mentioned on the website. The clicking on the ‘I agree’ button forms an e-contract known as clickwrap agreements.

Browsewrap terms do not require and express consent of the user and its terms are generally accessible through a hyperlink ((Kunz, Christina L., et al., Browse- Wrap Agreements ; Validity of Implied Assent in Electronic from Agreements, Business Lawyer, Vol, 59, 279-280 (1st November, 2003).)). For making payments online consideration is effected through net baking or use of credit cards or service provider or online service providers such as Paypal ((Paypal is a internet service provider that facilitates transfer of payments using internet. It substitutes  traditional payment mechanisms and charges service fee for rendering a service. The CC Avenue is also a payment processing gateway using Verisign 128 bit security and CVM verification))or CC Avenue.

Shrinkwrap Agreements comprise of agreements wherein the product which is purchased bears the terms and conditions and displayed on a box in which the product is sold. When a user opens the box or uses the product or fails to return the product to the point of sale, it is deemed that the user has given his consent and duly accepted the terms therein ((Karnika Seth, Computers, Internet and New Technology Laws, LexisNexis Butterworths Wadhwa, Nagpur, 2012)).

The electronic contracts are legally recognised as a valid contract in India the UNCITRAL model law harmonises these ‘functioning equivalence’ principles that facilitate the growth of E-commerce and build consumer confidence in the modelled its IT law based on the UNCITRAL Model law.  In India, where the dispute arises in e-contracts the Information Technology Act- 2000 along with Indian Contract Act 1872 is made applicable in settling the dispute.

Territorial jurisdiction issues

The jurisdiction issues in India require two general requirements to be fulfilled since India is a common law country. First, whether the court has jurisdiction over the defendant and secondly, whether the court has jurisdiction over the subject matter of the dispute ((Pravin Anand, has written chapter on India, Torsten Bettinger, General Editor and Principal Author,

Domain Name Law and Practice, Oxford University Press, 2005)). The Trademarks Act, 1999 section 27 lays down No action for infringement in case of unregistered trademark (passing off action for unregistered trademark). Section 134(1) lays down that the suit for the infringement of registered trademark or relating to any right in a registered trademark or for passing off shall not be instituted in any court inferior to a district court having jurisdiction to try the suit. The Code of Civil Procedure 1908, section 20 as a general rule lays down that a suit shall be instituted in a court within the local limits of whose jurisdiction the defendant or defendants (in case more than one)  resides or carries on business or personally works for gain or where the cause of action, wholly or partly, arises. The Trademarks Act 1999 is an exception to section 20 of the Code of Civil Procedure ((Code of Civil Procedure, 1908: Procedural law in India to decide civil disputes.)), in respect of suits for infringement of registered Trademark.

In case of a domain name, the use of which amounts to an infringement of a registered trademark, suit can be instituted before a court in whose local jurisdiction the plaintiff or one of the plaintiffs in case there are more than one, actually and voluntarily resides or carries on business or personally works for gain. It is pertinent to note that the exception is confined to suits in respect of infringement of registered trademark and does not extend to passing off actions.

The jurisdiction for filing suits in respect of infringing domain names can also be determined by the cause of action that becomes contentious issues over the internet. The other important issue include where the trademark owner has his official business in India and domain name infringing his trademark is registered by the defendant located in the other country, which court would have the competent jurisdiction to decide the matter. In these cases whether the trademark owner get the remedy by filing the suits in Indian courts, will the order be enforceable against the defendant ((Supra note.36)). The Delhi High Court in Casio India Co. Limited v/s Ashita Tele Systems Pvt. Limited ((106 (2003) DLT 554, 2003 (70) DRJ 742))followed the principle of global jurisdiction laid down by the High Court of Australia in Dow Jones & Co. Inc v Gutnick (([2002) HCA 56))in respect of the Internet and the World Wide Web. The Delhi High Court held that “once access to the impugned domain name website, could be had from anywhere else, the jurisdiction in such matters cannot be confined to the territorial limits of the residence of the defendant.” The defendant in Casio case was based in Mumbai and the enforceability of the injunction never became an issue, the Indian courts have excised extra-territorial jurisdiction. Thus, injunctions have been granted by Indian courts against defendants not based in Indian in respect of the adoption and use of an infringing domain name. In spite of the fact that even registrars have not been within the territorial jurisdiction of the Indian courts, they have by and large honoured the orders passed by the courts. Illustratively, Network Solutions, Inc. has the practice of freezing the domain name and depositing the title papers for the domain names with the court granting an injunction against a domain name.

With the Indian courts willing to exercise jurisdiction even in case where the defendant is based outside India, the applicable law has not been an issue and the courts have followed the Indian law. Thus, the incorporation of trademark as a domain name can be challenged before the courts on the basis of infringement of trademark where the trademark is registered and other ingredients of infringement have been satisfied as per the provisions of the Trademark Act 1999. On the other hand, incorporation of an unregistered trademark in the domain name can be questioned under the common law tort of passing off ((Supra note.35)).

Cyber crimes and effect on consumer rights

Computers with the aid of internet have become the most dominating medium of communication, information, commerce and entertainment. The internet, with all the benefits of anonymity, reliability and convenience has become a platform for persons interested in making use of Net for illegal gainful purposes. Anything related to the internet was being prefixed with the word ‘cyber’, ((Cyber may refer to a common prefix used in growing number of terms to describe new things that are being made possible by the spread of computers. For example: Cyber culture emergent culture based on the use of computer networks. Cybercafé or Internet café, a business which provides internet access))the most appropriate term to reflect the new criminal phenomenon called ‘cybercrimes’. The world cybercrime may be said to be a crime committed on internet. Since the term cybercrime gives restricted meaning, the world ‘computer crimes’ may be used which encompass offences committed in relation to or with the help of computers ((Chapter by Devashish Bharuka & Ajit Joy, computer crimes, Edited by S.K Verma & Raman Mittal, Indian Law Institute, New Delhi, 2004)).

Today, the cybercrimes has been a potential challenge for the criminal justice system. Ordinarily, the law keeps pace with the technological changes in society. However, rapid technological advancement like the internet have left the law behind to a technical specialist, the internet is a global network of computers based on internet protocol and other high speed communications protocols with thousands of notes and millions of users ((Nandan Kamath, Law Relating to Computers Internet and E-commerce, Universal Law Publishing Co. Pvt, Ltd, Delhi, 4th Edition, 2009)). The internet has become an exciting way to communicate, to exchange e-mail, transfer files between computers, and remotely access host computers, It is also used as social media, mass media.

The use of Indian Penal Code to prosecute cybercrimes has got a new dimension after passing the Information Technology Act- 2000. The Act has been passed with the object ((Objective of The Information Technology Act,2000:- An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto))of promoting a secure electronic environment dealing with issues subsidiary to this electronic environment such as contraventions relating to electronic transactions and Information Technology offences. The Information Technology Act- 2000 intends to give legal recognition to e-commerce and e-governance and facilitate its development as an alternative to paper based traditional methods they act seeks to protect the advancement in technology by defining crimes, prescribing punishment laying down procedures for investigation and forming regulating authorities. There has been an amendment to Indian Penal Code 1860, Indian Evidence Act 1872, Banker’s Book Evidence Act 1891 in order to prosecute cybercrime by facilitating collection and admissibility of evidence ((Supra note 30)).

Kinds of Computer Crimes/Offences

The computer crimes/offences may be classified as follows:

  1. Conventional crimes through computer: cyber defamation, digital forgery, cyber pornography, cyber stalking/harassment, Internet fraud, financial crimes, online gambling, and sale of illegal articles.
  2. Crimes committed on a computer network: hacking/unauthorized access, denial of service.
  3. Crimes relating to data alteration/destruction: virus/worms/Trojan horses/logic bomb, theft of internet hours, data diddling, salami attacks, steganography.
  4. Crimes relating to electronic mail: spamming/bombing, spoofing.

The biggest challenge to the law is to keep pace with technology. Cyber crime is the fastest growing crime in the world with millions of people affected every day. The effects of one successful attack on a corporation can have far-reaching implications, including financial losses at the corporate level, to stock losses and money lost for consumers or stock holders. Laws have been swiftly put into place to halt these types of attacks, but criminals find haven in countries with lax cyber crime laws ((http://www.ehow.com/list_6299041_impacts-computer-cyber-crime.html#ixzz28uOfYEFs visited on 21-05-2014)). It was reported that Software security services provider Norton said consumer cyber crime has cost the country around Rs. 42, 000 crores in the past 12 months, impacting 42 million people. Releasing the findings of its annual cyber crime report, it is estimated that over 42 million people fell victim to cyber crime in the past 12 months in the country, incurring around $8 billion in direct financial losses. In terms of cost, this is a full 18 per cent increase. Against this, the global loss has been pegged at $110 billion. The study further notes that as many as 66 per cent of adults have been a victim of cyber crime in their lifetime in the country. During the past 12 months, as many as 56 per cent of adults who go online here have experienced cyber crime – that is over 1,15,000 victims per day, 80 victims per minute and over one every second. The study is based on the findings of self-reported experiences of over 13,000 adults across 24 countries, Norton by Symantec said in a statement ((http://ibnlive.in.com/news/consumer-cyber-crime-cost-india–8-bn-report/290987-3.html  visited on 10-05-2014)).

The impact of cyber crime is as follows ((http://www.itu.int/ITU-D/cyb/events/2007/praia/docs/cardoso-cybercrime-impact-praia-nov-07.pdf visited on 10-05-2014)):

  • Diminished consumer confidence
  • Lost productivity
  • Loss of trade secrets
  • Refused access to certain markets

Relationship between trademark and domain names

The primary issue to be decided is whether domain name and trademark are two faces of the same coin. Domain names are indeed different from trademarks. It is possible that the same trademark may be registered by different persons in different categories and different lines of business, it may be possible to register only one domain name corresponding to such trademark. This aspect of domain names has led to numerous legal problems.

Infringement of Trademark V/s Domain Name: Domain name disputes are relatively unheard of in the Indian courts. There have been hardly a handful of reported decisions regarding domain name disputes and the case law has still not developed in India. However, with the use of the internet catching up at an amazing pace in the country, the Indian courts would surely be faced with domain name disputes in times to come. A global study of domain name disputes would show that they could be broadly classified under the following heads:

Infringement: This refers to disputes where the original registrant intentionally trade off the resemblance between the domain name and another famous trademark. Thereafter, the registrant tries to encash on the reputation of the trademark holder by running a business similar to that of the trademark holder. In such cases, the use of the mark (domain name) would be illegal under the existing trademark law, regardless of whether the infringement occurred as an internet domain name or in any other context. The standard factors, which determine infringement under the traditional trademarks, law like:

  • the strength of the trademark,
  • the deceptive similarity between the plaintiff’s and the defendant’s mark,
  • the likelihood of confusion in the minds of the public, etc.,
  • Would apply in cases of infringement of domain name also.

Concurrent Claims:  In this category of domain name disputes, there is more than one legitimate user of the domain name. Apparently, there is no intention to trade off a trademarked name and little or no potential for confusion between the products of the conflicting claimants. Both parties have a particular trademark of their own or a valid reason to use a particular domain name. For example, both Moonlight Computers and Moolight Dry Cleaners would be interested in registering the domain name ‘moonlight.com’.

The crime of Cybersquatting has significantly increased in last decade. In Pen books Pvt. Ltd.v Padmaraj ((2004(3) KLT 31))The Kerala High Court has defined Cybersquatting as follows:

Obtaining fraudulent registration with intent to sell the domain name to the lawful owner of the name at premium is called ‘cyber squatting’. The Trade Marks Act, 1999 neither define ‘Domain Name’ nor the offence of ‘Cybersquatting’. The domain name disputes are dealt the common law of passing off ((Aparna Viswanathan, Cyber Law-Indian & International Perspectives, Lexis Nexis Butterworths Wadhwa, Nagpur, First edition, 2012)).

Registration of Domain names in India:

The National Internet Exchange of India (NIXI) has created the IN Registry, an autonomous body with the primary responsibility for maintaining the .IN Country Code Top-Level Domains (.IN ccTLD) and ensuring its operational stability, reliability, and security. New policies have been formulated for registration of .IN domain names. The owners of registered trademark or service marks were given opportunity to apply for .IN domain names before general public. This period is called sunrise period which gave a preference to the existing trademarks and service mark owner ((Ibid.)). .IN Domain Name Dispute Resolution Policy (INDRP) was formulated by .IN Registry (in 2005) on the lines of the Uniform Domain Name Dispute Resolution Policy approved by the ICANN.

According to the .IN Registry, when there arises a dispute between the registrant and complainant regarding the use of .IN Internet Domain Name, the complainant can file a case under following circumstances:-

  1. If the registrant’s domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights.
  2. If the registrant has no rights or legitimate interests in respect of the domain name; and The registrant is said to have legitimate interests in the domain name if:-
  3. If the registrant’s domain name has been registered or is being used in bad faith. In order to prove bad faith on the part of the Registrant, the following circumstances will be considered-
  • Before any notice to the Registrant of the dispute, the registrant uses the domain name in connection with a bona fide offering of goods or services;
  • The registrant has acquired no trademark or service mark rights; or
  • The Registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue ((Paragraph 7,. In Domain Name Dispute Resolution Policy)).
  • Circumstances indicating that the Registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, who bears the name or is the owner of the trademark or service mark, or to a competitor of that Complainant, for valuable consideration in excess of the Registrant’s documented out-of-pocket costs directly related to the domain name; or
  • The registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Registrant has engaged in a pattern of such conduct; or
  • By using the domain name, the Registrant has attempted to attract Internet users to the Registrant’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of the Registrant’s website or location or of a product or service on the Registrant’s website or location ((Paragraph 6,. In Domain Name Dispute Resolution Policy)).

When a Complainant files a complaint to the .IN Regisry in any of the above mentioned cases, the Registrant is required to submit to a mandatory arbitration proceeding in compliance with the Policy and Rules made thereunder. The arbitrator is appointed by the .IN Registry. The only remedies available to the Complainant are limited to either requiring the cancellation of the Registrant’s domain name or the transfer of the Registrant’s domain name registration to the Complainant ((Paragraph 10,. In Domain Name Dispute Resolution Policy)). The foregoing is very similar to the domain name registration procedure which exists under ICANN ((Supra note 51)).

Registration of Domain names under ICANN

The Internet Corporation of Assigned Names and Numbers (ICANN) is responsible for the management of the internet domain name system. The ICANN approved the Uniform Domain Name Dispute Resolution Policy (UDRP) on October 24, 1999 which lays down the mandatory procedure for dispute resolution. The UDRP provides a mechanism for trademark owners to obtain domain names that have been fraudulently registered by cyber squatters. All registered owners of .com, .net and .org domain names (the ‘Registrant’) are subject to the UDRP by virtue of: (i) the registration agreements agreed with their registrars at the time of acquiring their domain names, or (ii) applying to ICANN to maintain or renew a domain name registration ((Clause 2, Uniform Domain Dispute Resolution Policy)).

The UDRP sets forth the type of disputes for which one is required to submit to a mandatory administrative proceeding. In the event that a third party (a ‘complainant’) asserts and proves each of the following-

  • That the domain name sought to be registered is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
  • That the person seeking to register the domain name has no rights or legitimate interests in respect of the domain name; and
  • That the domain name has been registered and is being used in bad faith ((Clause 4(a), Uniform Domain Dispute Resolution Policy)).

The Administrative Panel will either cancel the domain name of the applicant or transfer the domain name to the complainant. The UDRP stipulates that the administrative panel decision is limited to cancellation of domain name of the applicant or for transfer of the said domain name to the complainant. No other relief can be granted by the administrative panel ((Clause 4(i), Uniform Domain Dispute Resolution Policy)).

The submission of a dispute before the Administrative Panel does not prevent the parties from seeking other remedies. Either party has the liberty of submitting the dispute to a court of competent jurisdiction for independent resolution before the mandatory administrative proceeding is commenced or after such proceeding is concluded ((Clause 4(k), Uniform Domain Dispute Resolution Policy)).

In the event of multiple disputes between the registrant and the complainant, either the registrant or the complainant may file a petition to consolidate the disputes before a single Administrative Panel. The petition should be made to the first Administrative Panel appointed to hear a pending dispute between the parties concerned. It is the sole discretion of the Administrative Panel to consolidate all such disputes ((Clause 4(f), Uniform Domain Dispute Resolution Policy)).

Global internet governance

There is a need for global internet governance in a democratic manner. Today internet is a major force, restructuring our economic, social, political and cultural systems. The reason for democratising internet governance is to keep it open, transparent and inclusive with civil society give an adequate avenue of meaningful substantive participation.

The governance issues include the following:

  1. Governance structures to handle cross sovereignty issues pertaining to use of language are not developed at all
  2. The ICANN internationalization of domain names (IDN) committee’s proposal is incremental in its ability to cope with the diversity and complexity of the real world of multilingual and multiscript situation. Its one size-fits-all model has not proven to work yet.
  3. No workable model of administration of internationalization of domain names IDNs has emerged from ICANN ((Dr. Tan Tin Wee, Vice Chairman, MINC, Associate Professor, National University of Singapore, A historical background, current activities and issues of Internationalized Domain Names, JDNA-MINC Joint Meeting, Tokyo, Japan,30th Sep 2002)).

India now willing to ICANN for internet governance

India has made-up its position on internet governance, hoping to become new voice of reason in issue of internet governance. The change was effected after inter-ministerial as well as multi-stakeholder consultation, is intended to distance India from any model propagating governments taking ‘charge ‘or ‘balkanising’ the internet. This unveiled at Budapest Cyber Space Conference ((The Hindu, Sunday, October14, 2012 Page no.10)). The Indian government’s changed stand on internet governance, though understated is expected to generate attention in the upcoming Internet Governance Forum.

Conclusion: Domain names are assets of modern businesses. This requires lot of concern and interest in administering this domain names since there are able to influence the overall development of an organisation, enterprise, or industry. In this article the author has made a attempt to discuss some issues concern to domain name and scope of the article is limited to only subject selected. The legal challenges on account of domain names are innumerable and require lot of attention to address it in point of fact. Legal protections that can afford to the domain names require strengthen of cyber law enforcement at different levels such local, individual, national and international level. The Background and history of Internet Domain name describes the evolution and growth domain names phase by phase. With advancement in science and technology there can be phenomenally growth in near future, opening to legal challenges such as in contractual disputes, territorial jurisdictional issues, cybercrimes and effect on consumer rights, relationship between trademark and domain names, registration of domain names in India and by ICANN, global internet governance issues etc. There is an attempt to explain the formation of e-contract, three types of e-contract that can be entered through websites; the jurisdictional issue is to be settled in case of cross border disputes for which consensus is required at international level; the effects of cybercrime on consumers includes: Diminished consumer confidence, Lost productivity, Loss of trade secrets, Refused access to certain markets; registration of domain name in India and by ICANN is discussed to throw a light on the procedure of registration and dispute settlement; lastly a current issue of global internet governance where there is voice of democratising internet governance for reasons such as to keep it open, transparent and inclusive with civil society give an adequate avenue of meaningful substantive participation.

Article 38(1) of ICJ and sources of International Law

Critically discuss whether Article 38(1) of ICJ Statute exhaustively enumerates all sources of International Law.

Dipti Srivastava, Student of Law, Jindal Global Law School

Sources are the fundamental basis of International Law, which has the force of creating rights and obligations on the states concerned ((Malcom Evans (ed.), Hugh Thirlway, THE SOURCES OF INTERNATIONAL LAW, (2014), 91)). This paper attempts to answer a critical question discussing whether there are additional sources to International Law apart from those mentioned in the Article 38(1) of Permanent Court of International Justice (hereinafter referred as PCIJ). What are these sources and whether these additional sources have the force of being regarded as a formal source or not. This would ultimately contemplate that the sources given in the Article 38(1) of PCIJ is not exhaustive and there is need of the additional sources to gain recognition in the era of modern International Law.

What do we mean by ‘sources’? How is it different from domestic legal system?

Ascertainment of law in the international legal system is fairly ambiguous when compared to domestic legal order. Within International law, there is a lack of legislature, executive and a structure of courts ((6 Malcolm N. Shaw, INTERNATIONAL LAW, Cambridge, 70)). There is no single body able to create laws internationally binding on everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law ((ibid)). Therefore, there is a problem faced in discovering where the law is to be found and whether a particular proposition amounts to a legal rule ((ibid)). This primarily means that there is uncertainty regarding the emergence of the rules of International law, i.e. ‘sources’ of International law. This perplexity is reinforced because of the anarchic nature of world affairs and the clash of competing sovereignties ((Supra n. 2)). Nevertheless, international law does exist and is ascertainable in Article 38 (1) of ICJ, which is considered to be ‘sources’ of International Law. The debatable question which arises here is – Are these sources exhaustive or can it be argued that its merely descriptive?

Article 38 (1) of ICJ provides that the courts whose function is to decide in accordance with international law, such disputes shall apply treaties or conventions, international customs, general principles of law and lastly judicial decisions and teachings subject to Article 59 of the Statute of the International Court of Justice. These are widely recognized as the most authoritative and complete statement as to the sources of International Law ((Supra n. 2, p. 70)). Other and alternative sources has time an again been suggested by jurists and learned academics but the traditional analysis of the sources continues to dominate. This is highly questionable.

Additional Source – Equity

At the time PCIJ Statute was drafted, it was considered to complete and exhaustive. However, subsequently with time it was witnessed that there is a difficulty is considering the above-mentioned proposition, as there were additional sources, which had been discovered. Equity was one of them. Equity has been seen as a set of principles constituting the value of a system ((Supra n. 2, p. 106)). There are innumerable cases, which illustrate the role of Equity in International Law. The most famous decision was of Judge Hudson in the Diversion of Water from the Meuse case ((PCIJ, Series A/B, No. 70, p.73, 77; 8 AD, p. 444,450))in 1937 regarding a dispute between Holland and Belgium. ‘Hudson pointed out that what are regarded as a principle of equity have long been treated as a part of international law and applied by the courts ((Supra n. 2, p. 106)).’ ‘Under Article 38 of the Statute’ he declared, ‘of not independently of the article, the court has some freedom to consider principles of equity as a part of International law which it must apply’. Another case called the Rann of Kutch Arbitration between India and Pakistan ((1968, 50 ILR, p.2)), which explicitly mentioned that equity formed a part of international law and the parties, could rely on such principles in presentation of their cases ((Supra n. 9)). Therefore, it could be concluded by the above-mentioned examples that ‘Equity’ could be considered as one of the possible additional sources of International law and requires recognition.

However, in the North Sea Continental Self case ((ICJ Reports, 1969, pp. 3,53))it has been contented that Equity has been used by the courts as a way of mitigation certain inequities, not as a method of refashioning nature to the detriment of legal rules ((Supra n. 2, p. 107)). Nevertheless, the use of the principles of equity independently has also been witnessed in the subsequent years. It was particularly marked in the 1982 law of Sea convention. The use of equity was seen to be used in the grey areas between two provisions. Provision which possessed flexibility but which are uncertain. Examples of such provisions are Article 59 ((Conflict between costal and other state regarding the exclusive economic zones)), Article 74 ((Delimitation of the zones between states with opposite or adjacent coasts)), Article 83 ((Delimitation of the continental shelf))also the Convention on the law of the Non- navigational Use of International Watercourses, 1997 ((Supra n.2, p. 108)). Therefore, even if its existence as distinct source could be questioned by its inter dependent nature on existing law, yet not to provide credit to such widely used concept would be unjustified. Equity to be considered as creating legal right and obligations independent of other sources would help to uphold morality and abstain from any tragedy of the commons. In my opinion, Equity is like a shield to International Law and therefore demands recognition as a source of International Law.

Unilateral Acts

Unilateral Acts are another type of additional source, which could be considered as a source to international law. It has an ability to create obligations, which is said to be one of the characteristics of the sources. A case, which could be considered in this connection, is the case Nuclear Test case in which the court assumed that France has assumed legally binding obligation through a unilateral declaration to the world at large. It declared that it would not hold any atmospheric nuclear tests in the Pacific ((Malcom Evans (ed.), Hugh Thirlway, THE SOURCES OF INTERNATIONAL LAW, (2014), 111)). The court in this case laid down the rule in following term: ‘It is well recognized that declaration made by way of unilateral acts, concerning legal or factual situation, may have the effect of creating legal obligation… when it is the intention of the state making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking ((Nuclear Tests (Australia v. France) Judgment, ICJ Reports 1974, p 253, para 43)).’ Therefore, the key for unilateral acts to be considered as one of the sources would be the intention of the state to be bound by the declaration made by it is crucial and well as the element of publicity or notoriety ((Supra n. 2, p. 122)). Another type of a unilateral declaration, which could be referred to in this regard, could be the Truman Proclamations, which were made by the then U.S. President Harry Truman in 1945. These proclamations also referred as unilateral declaration formed an inspiration for claims by other states. And these formed an influential part in the preparation of the Geneva Conventions. These declarations exhibit the entire key element for a unilateral act to be considered as a source. Nevertheless, to consider it to be a distinct source of international law would be far fetched, as consent to these obligations is quintessential on part of other states. And which could only be obtained if these unilateral acts boiled down to a treaty. Nuclear test case, in my opinion could be considered an exceptional case yet not satisfying to create a new source.

Resolution of UN General Assembly

It is to be observed that, in fact the source given in Article 38(1) of ICJ is capable to perpetuate to some extend developing new laws and identifying existing laws ((Supra n. 2, p. 114)). The terms of Article 38 (1) and the disorganized state of international law is the justification for this contention. However, with the gradual de-Europeanisation of the world and the growth of the importance of the third world country the burning issues concerned in this section is the standing of the resolution and declaration of the General Assembly of the UN. Could this also be contemplated as one of the additional source of International law?

We witness in the Nicaragua case ((ICJ Reports, 1986, p. 14, 99-100))wherein it was expressed that the opinion juris requirement could be acquired from the circumstances surrounding the adoption and application of a General Assembly Resolution. It is also to be noted that the way the states vote in the General Assembly and the explanation given upon such occasion constitute evidence of state practice and state understanding of law ((Supra n. 2, p. 115)). This itself exhibits that resolutions are complete in it and would not require the support of a formal source for its standing as an independent entity. Therefore, the requirement of state practice and opinion juris for a law to fall under the Clause 2 of article 38(1) is satisfied in itself. Another example in this connection would be the 1960 Declaration on the Grating of Independence to Colonial Countries and People. It was adopted by no opposition and only nine abstentions and followed a series of resolutions in general and specific term. Consequently it culminated to a legal right and obligations, particularly taken in conjunction with the 1970 Declaration on the Principles of International Law ((Supra n. 2, p. 116)). Another Declaration such as the Legal Principles Governing Activities of States in the Exploration and use of Outer Space is an example of state practice and such resolution be the evidence of the existence of or evolution towards opino juris. However, this slows down the process of Decision making as one of the key element of customary international law require the growth of the existence of opinion juris. But, it is to be noted that when an resolution is passed it General Assembly, its passed with a majority which itself exhibits state practice. And to wait for an opinion juris to develop would be futile. Instead a strong mechanism with effective functioning can be brought into place if these resolutions have are to be considered as one of the possible sources. It would also lead to active participation of the members of the General Assemble and help in the evolution of something called the international Legislature.

It is argued that there is a danger if legal value is ascribed to everything that emanates from the Assembly. Resolutions are often the result of political compromises and arrangement and comprehended to not have binding norms ((Supra n. 2, p. 117)). But the flip side of this argument could be that every decision taken internationally by way of treaty, custom etc. or in the Domestic Legal order is a result of the interplay between politics and law. It comprises of the same elements as mentioned above, but in most cases we do witness that greatest good for greatest number is upheld. If these resolutions are given the standard as a formal source of International Law, in my opinion the rather ambiguous sphere of International Law would become more definite and the world would come more in proximity to deal with broader issue of the world at large. Therefore, Resolution of the General Assembly should be regarded as a source of international Law.

CONCLUSION

Thus, to conclude, it should be taken note that even though Article 38(1) is regarded as the enumeration of the sources of International law, the term ‘Sources’ has not been used in the Article itself. Therefore to attribute it such a tag would constrain it very nature of International law. Instead it would be feasible to regard Article 38(1) as guidelines to International law or as many learned academic suggest it to be regarded as ‘recognized manifestation of International Law ((Supra n. 1, p. 95)).’ Also, doing this would lead to the acceptances that there are additional sources apart from those mentioned. Therefore, after making the above observation, in my opinion, the sources enumerated in Article 38 (1) of PCIJ are not exhaustive.

Applicability of International Humanitarian Law (IHL) on cyber warfare

Apoorva Sharma, Institute Of Law, Nirma University, Ahmadabad

The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom
-John Locke

Jus in bello, conjointly called the International Humanitarian Law [IHL] ((See generally, The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force By Howard M. Hensel; The Law of Armed Conflict: International Humanitarian Law in War By Gary D. Solis; International law and armed conflict: exploring the faultlines: By Michael N. Schmitt, Jelena Pejic, Yoram Dinstein.; The conduct of hostilities under the law of international armed conflict By Yoram Dinstein; The contemporary law of armed conflict By Leslie Green; The law of war By Ingrid Detter Delupis, 2nd edn CUP 2000))is the section of law of nations, handling the protection of persons who are no longer collaborating within the hostilities which restricts the means and strategies of warfare. It includes written and customary law, because the latter has been crystallized throughout history ((ICRC has contributed with a recent customary IHL database published with the results of research on customary humanitarian law conducted in 2005, available at http://www.icrc.org/customary-ihl/.)).

International law is a body of rules and regulations governing the relation between states and International Humanitarian law is just a part of it, which applies only to armed conflict. During warfare and armed conflicts, the law that binds the countries is International Humanitarian law, which objectifies the existence of Humanity before brutal destructions.
It has its operation within these two ambits:

  • The protection of those who are not a part of the war; Civilians.
  • Restrictions on the means of warfare; in particular the weapons and the methods to be adopted during the warfare, that involves the military tactics.

International humanitarian law prohibits all means of warfare which

  • Causes injury, the consequences of which is unnecessary sufferings;
  • Causes severe and permanent damage to the environment.

This paper gives out the attainable application of the law of war in international cyber conflict, with the application of the final principles of Jus in bello in cyber-attacks. Since the law of war is applicable on all or any military operations then why should cyber warfare operation be an exception?

Can IHL be applied on cyber warfare?

International Humanitarian Law has banned the use of many weapons that includes exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines. An International Criminal Court (ICC), was created by the 1998 Rome Statute to try cases relating to IHL. 21st century encountered the emergence of new military warfare concepts, and Cyber warfare is one of them. Where under, Computer networks are used for cyber-attacks instead of conventional weapons; and satellites are used for providing images far more detailed than human spies and reconnaissance units have ever offered. Cyber warfare has been explained as any hostile measure taken against an enemy designed “to discover, destroy, disrupt, alter, or transfer data kept in a computer that is manipulated and transmitted through a computer network ((Legal Vacuum in Cyber Space, International Committee of the Red Cross, available at http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm, visited on 26 December 2012)).” Examples of hostile use includes computer attacks on air traffic control systems, on oil pipeline flow systems, controlling the activities of a particular network, edit or alter the crucial information in a network and nuclear plants. It is an attack based on networks which is adopted by many countries to reduce their frustration and also to avoid the real war situation.

Examples of Cyber attacks

Chinese attack on US and Google through Ghost net spyware network upon confidential information of more than 100 countries are few examples which acquaint us with the concepts of cyber warfare. The main issue is whether the basic principles of IHL that is military necessity, distinction and proportionality are flexible enough to accommodate 21st-century-evolvedmodern method of cyber warfare?

Contemporary armed conflicts is to be controlled through a body of law which have not yet become adaptable to contemporary legal and practical challenges, introduced by robots and robotic devices, which replaced foot soldiers, the deployment of drone instead of manned aircrafts, and by using computer networks for cyber-attacks rather than use of conventional weapons. Though one may argue that cyber warfare is not specifically a warfare technique, any illegal act done by anyone can be culminated using networks, which need not be delved into the warfare arena. Cyber operations are in fact used in crimes committed in everyday situations that have nothing to do with warfare. A large proportion of operations popularly termed as “cyber-attacks” are in fact network disruptive attacks carried out for gathering illicit information and it usually occurs outside the arena of armed conflicts. But in the situation of armed conflict, IHL is applicable when the parties resort to techniques of warfare based upon cyber operations.

Cordula Droege ((legal expert of International community for Red Cross(ICRC).)), explains that the existing legal framework is applicable and must be respected even in the cyber realm ((Coduladroega, ’’Elective affinities? Human rights and humanitarian law”, 30-09-2008 Article, International Review of the Red Cross, No. 871, published on 30-09-2008)). According to a study conducted by Mr. Anton Camen (Expert from International Committee of the Red Cross) surveyed the main areas in which new technologies challenges the existing principles of IHL: cyber-warfare, automated systems (robotics), and new kinetic weapon ((Anton canon, Anton’s weekly digest of International scholarship, Vol.3,Nos 21, published on 24 May 2012)). His conclusion was that the traditional principles of IHL are, as a rule is inductive. Thus, it is clear that the rules of IHL are flexible enough to make it applicable on cyber warfare . As it did not incorporate itself as pigeon hole ((Stasysjukna, The pigeonhole principles, Springer Berlin Heidelberg publication, ISBN; 978-3-642-17363-9))legislation but as an inductive piece which is flexible enough to accommodate changes as per changing circumstances. In fact it is the role of International committee for Red Cross (ICRC) to look upon the valid developments to be adopted into IHL. There are several examples where new developments were adopted. Few of them are:-

  • The Protocol about glary optical maser weapons, adopted at the capital of Austria Diplomatic Conference in Oct 1995, prohibits each the employment and transfer of optical maser weapons, one in every of whose specific combat functions is to cause permanent visual impairment.
  • Within the case of mines, the sphere of application of Protocol II to the 1980 Convention was extended by the adoption; in Geneva on three could 1996, of associate amended version of the Protocol on prohibitions on the employment of mines, booby traps and alternative devices. The Convention on the prohibition of the employment, reposition, production and transfer of anti-personnel mines and on their destruction, signed by 121 countries in Ottawa on 3-4 Gregorian calendar months 1997, entirely prohibits anti-personnel mines issues.

Even though IHL doesn’t specifically mention cyber warfare, the Martens clause ((Rupert Ticehurst, The martens clause and the armed conflict, International review of the red cross, published on 30-04-1997)), that is associated with accepted principle in IHL, says that, “whenever a state of affairs isn’t coated by a global agreement, “civilians and combatants stay below the protection and authority of the principles of jurisprudence derived from established custom, from the principles of humanity, and from the dictates of public conscience ((ibid)).” New technologies of all types area unit being developed all the time and IHL is sufficiently broad to accommodate these developments. IHL limits the employment of sure weapons specifically (for instance, chemical or biological weapons, or anti-personnel mines). However it additionally regulates, through its general rules, all means that and strategies of warfare, as well as the employment of all weapons. specifically, Article 36 of I protocol to the Geneva Conventions provides that, In the study, development, acquisition or adoption of a brand new weapon, means that or methodology of warfare, a High getting Party is below associate obligation to see whether or not its employment would, in some or all circumstances, be prohibited by this Protocol or by the other rule of jurisprudence applicable to the High Contracting Party ((Article 61, International Humanitarian Law – Treaties & Documents, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), available at http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=470&t=art, visited on 28th December 2012)),” on the far side the precise obligation it imposes on States parties, this rule shows that general IHL rules apply to new technology.

PROBLEMS ASSOCIATED WITH CYBER WARFARE IN APPLICATION OF IHL

Generalisation of the objective of the attack

The basic rule of the law of war (IHL) is enshrined in Additional Protocol I article 48, according which,

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

This is the area of concern when it comes about cyber warfare, as it generalises the target or target of attack. As per IHL rules some principles ought to be followed just in case of a warfare. It may be a general rule that attacks ought to be used just for weakening the enemy or military forces and not for inflicting hurt to any civilian. So it states that civilians ought to be protected and separated from military networks and warfare arena. This can be referred to as the principle of ‘Distinction ((Jean- marieHenkaerts& Louise doswald-beck, principle of distinction, principle difference between civilian object and military object, section A, practice relating to Rule 7, Customary International Humanitarian Law, volume 1)).’ The principle of distinction states that parties to a conflict distinguish the least bit times between civilians and combatants and between civilian objects and military objects. Attacks could solely be directed against combatants or military objectives. Indiscriminate attacks, that are attacks that cannot be directed at a selected military objective or whose effects cannot be restricted as needed by IHL, are prohibited ((Article 48, Additional protocol I)). Similarly, attacks against military objectives or combatants are prohibited if they will be expected to cause incidental civilian casualties or harm which might be excessive in regard to the concrete and direct military advantage anticipated (so-called disproportionate attacks). Cyber-attacks have eliminated the boundaries between civilians and military. Cyber operations will raise humanitarian issues, specifically once their result is not restricted to the information of the targeted system or PC. Indeed, they are typically supposed to own an impact within the “real world.”

For example, by change of state with the supporting PC systems, one will manipulate associate enemy’s traffic management systems, pipeline flow systems or nuclear plants. The potential humanitarian impact of some cyber operations is so monumental. Cyber operations that are distributed to date, as an example in Republic of Estonia, Georgia and Asian nation, cannot seem to own had serious consequences for the civilian population.

In 2007 the Government of Estonia, the ‘most wired country in Europe’ ((Also known as E-Stonia, as the Parliament has declared internet access to be a basic human right. 95% of daily transactions are conducted online, with state services being offered such as eBusiness, eState, ePolice, eBanking and even eVoting.))decides to relocate a disputable Soviet War memorial ((For more on the so-called Bronze Soldier, and the tempestuous events that came to be known as the Bronze Night, see further e.g. A Sinisalu, ‘Propaganda, Information War and the Estonian-Russian Treaty Relations: Some Aspects of International Law’, 2008 XV Juridica International, 154-162, available at http://www.juridicainternational.eu/index.php?id=12741))off from the Tall in centre. The very next day and over the course of the subsequent 3 weeks, devastating cyber attacks, hosted by Russian state laptop servers, target and cripple parliament and ministries’ websites, government communications, on-line banking systems and websites of leading news organizations. The events lead to talks concerning ‘Web War I’ ((http://www.defensenews.com/story.php?i=4699902))and in NATO establishing a Tallinn-based Cooperative Cyber Defence Centre of Excellence the following year.

However, it appears that it is technically possible to interfere with airfield management systems, alternative transportation systems, dams or atomic power plants via cyber area. Probably ruinous eventualities, like collisions between craft, the discharge of poisons from chemical plants, or the disruption of significant infrastructure and services like electricity or water networks, so cannot be pink-slipped. The most victims of such operations would possibly be civilians. It is actually attainable that cyber operations may have fatal consequences for civilians. This suggests that, in coming up with and winding up cyber operations, the sole targets permissible below IHL is military objectives, like PC or computer systems employed in support of military infrastructure or of infrastructure used specifically for military functions. It follows that attacks via cyber area might not be directed against, as an example, PC systems employed in medical facilities, schools, and alternative strictly civilian installations. The problem of humanitarian concern during this respect is that cyber area is characterised by interconnectivity. It consists of innumerable interconnected PC systems across the planet. Military PC systems seem to usually be interconnected with industrial, civilian systems and to accept them in whole or partially. Thus, it would preferably be not possible to launch a cyber-attack only on military infrastructure and limit the consequences to only on to that of military objective. For example, the employment of a worm that replicates itself and cannot be controlled, and may so cause goodly harm to civilian infrastructure, would be a violation of IHL. All IHL rules governing the conduct of hostilities area unit probably applicable throughout armed conflict; however whether or not they are relevant in such a context, and the way they might be applied in are real issues.

The principle of military necessity presents a less thorny issue. Simply stated, the intended target must have military value and receive only enough force to ensure its destruction. From a targeting standpoint, the information warrior like any other military commander can easily avoid war crimes charges if he or she refrains from choosing purely civilian objectives: Stock exchanges, banking systems, universities, and similar civilian infrastructures may not be attacked simply because a belligerent has the ability to do so ((SW Brenner, MD Goodman, ‘In Defense of Cyberterrorism: An Argument for Anticipating Cyber- Attacks, Journal of Law, Technology & Policy, Vol. 2002, Issue 1 (Spring 2002)’, pp. 1-58, at 14)).’

The Additional Protocol I of the 1949 Geneva Conventions ((Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977))provides in article 43 that the armed forces consists of all organised armed forces, which is under a control responsible to that party for the conduct of its subordinate. However, if one turns to states’ observe on a world level, it’ll be evident that cyber forces, commencing to represent a separate branch of each technologically advanced state’s army, has set the instance with the recent inauguration of people Cyber Command (USCYBERCOM) as Associate in Nursing militia sub-unified command, subordinate to the Department of Defence, followed by Great Britain, that launched a Cyber Security Operations Centre ((http://www.cabinetoffice.gov.uk/media/216620/css0906.pdf see also http://news.bbc.co.uk/2/hi/uk_news/politics/8118348.stm see also http://news.bbc.co.uk/2/hi/uk_news/politics/8573152.stm))in check of the cupboard workplace. Thus, if taken without any consideration that a cyber-force will represent a part of a state’s militia, it is terribly straightforward for cyber-attacks to fall among the legal scope. As for cyber-attacks area unit perpetrated by hackers, United Nations agency may be thought of as ‘mercenaries’, forward that a state hires them towage targeted cyber-attacks.

What ought to be done

The party answerable for associate attack should take measures, to the most extent possible, to avoid or minimize incidental harm to civilian infrastructure or hurt to civilians. It can be required to validate the character of the systems the area unit of which being attacked and also the attainable harm which may prove from associate attack. It additionally means once it becomes apparent that associate attack can cause excessive incidental civilian harm or casualties, it should be turned off.

Also, parties to conflicts have associate obligation to require necessary precautions against the consequences of attacks. It might so be wise for them, so as to guard the civilian population against incidental effects of attacks, to assess whether or not military PC systems area unit sufficiently break free civilian ones. The reliance of military PC systems and connections on civilian systems contractors that are used for civilian functions may well be a cause for concern.

On the opposite hand, analysis and development ought to be promoted for development of such technology that may facilitate in edging out violation of IHL by exempting civilians in an exceedingly cyber warfare. Hackers ought to be appointed to an excellent extent to avoid such things and to guard civilians. Information technology may additionally serve to limit incidental harm to civilians or civilian infrastructure. For example, it would be less damaging to disrupt the services used for military and civilian functions than to destroy infrastructure utterly. In such cases, the principle of precaution arguably imposes associate obligation on States to decide on the less harmful means that to attain their military aim.

STATE ATTRIBUTABILITY

Another issue that emerges is building upon the identity of a cyber-attack to a particular state. It’s extremely unlikely that inter state cyber-attacks will be perpetrated by the heads-of-state themselves, on condition that a high degree of experience in computer technology is required. So, since a bunch of hackers are going to be the one ‘hired’ by a government to wage the attack, however can the group’s actions be attributed to the particular state? ((International legal literature has not addressed yet effectively the subject. See Shackelford nuclear 233. Dinstein in MN Schmitt, Computer Network Attack and the Use of Force in International Law :Thoughts on Normative Framework – [s.l.] : US Air Force Academy, 1999, at 103; Barkhamsupra note 18, at 97; Graham 92 and 95. also Todd, but dealing mainly with cyber espionage))Allegedly, it’s notably tough not solely to prove that a cyber attack has taken place but conjointly to trace the culprit of associate degree attack, including seeking out the specified nexus between the hacker and therefore the accountable state so as to attribute the acts to the actual state.

In reality, however, if a black hat hacker with malicious intentions is knowledgeable in camouflaging, or maybe in fully concealing the traces that may result in him, there is another hacker, a white hat hacker, equally knowledgeable in tracing him. For the needs of this study, it will be taken with a pinch of salt that the hackers will so be geographically copied, in order to proceed to a legal analysis of however their actions will be attributed to the responsible state ((Eg, Adkins 16 describes a ‘law enforcement diagnostic tool’, the ‘Carnivore’, used by the FBI to locate and identify hackers who ‘weave and loop’ through various computers in order to hide their actual location)). Further to the present, notwithstanding the attack is geographically copied, the scope of state attribution of the acts of a bunch of hackers stumbles upon the contentious issue of behaviour in the Net ((For an analysis on territoriality and jurisdiction in cyberspace, see Van de Bogart)). Retired General Michael Hayden, former director of the U.S. National Security Agency recently declared in associate degree completely flamboyant manner that one answer being discussed in government is to easily ignore (trying associate degree attempting) to work out if the supply of an attack is state-sponsored and hold nations to blame for malicious activity coming back from their Net ((‘Former NSA Director: Countries Spewing Cyber attacks Should Be Held Responsible’, July 29, 2010, available at wired.com, an online periodical on technology issues, http://www.wired.com/threatlevel/2010/07/hayden-at-blackhat)).

In the heart of the jurisprudence of state responsibility lay the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, statute by the International Law Commission ((Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II (Part II), Reproduced in the annex to General Assembly Resolution 56/83 of 12December 2001, and corrected by document A/56/49 (Vol. I)/Corr.4)). Chapter II of the Draft Articles posits that attribution of a conduct to a state is effectuated during a embarrassment of ways: entomb alia, through the conduct of the De facto or De jure organs of a state ((Article 4))[even in instances wherever they exceed their authority or contravene their instructions ((Article 7)), through the conduct of persons or entities travail elements of governmental authority ((Article 5)), and through the conduct of someone or cluster of persons acting below the directions of or below the directions or management of that State ((Article 8)). The half of the latter type of ‘immutability’ is that the most arguable one. The degree of management that should be exercised by the state so as for the conduct to be attributable to it had been a key issue in different cases of the international jurisprudence ((Case Concerning Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), 1984, ICJ Reports 392 June 27, 1986; Prosecutor v. DuškoTadić aka Dule, Sentencing Judgement, Case No. IT-94-1-T, ICTY, 14 July 2007; Case Concerning the Application of theConvention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.Serbia and Montenegro), ICJ General List No. 91, Judgment of February 26, 2007)). If a future cyber-attack is so waged by a bunch of hackers acting below the instructions, directions or management of a state, a specific issue can arise if the mutually contradictory dicta by the 2 world organisation tribunals square measure taken into thought.

The International Court of Justice dominated within the landmark 2007 Nicaragua Case that associate degree “Effective control” check is required for the state attribution to be achieved, whereas the International Criminal assembly for the previous Yugoslavia ((International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991))set within the famed Tadić Case that a looser, “overall control” check is satisfactory enough. The latter was harshly criticised by the ICJ in its landmark 2007 putting to death the Case as being unconvincing and unsuitable, because it ‘has the most important downside of broadening the scope of State responsibility well on the far side the elemental principle governing the law of international responsibility’. Thus, within the case that a future controversial cyber-attack is submitted to the International Court of Justice, it remains to be seen whether or not the standards used are tight or not and whether or not international responsibility of the perpetrator state are effectively engaged. Praiseworthy is additionally the proposal by Shackelford, UN agency moves even any and suggests that ‘using the putting to death Convention is a vehicle to carry responsible culprit nations that have putting to death as results of an enormous and deadly state-sponsored information warfare campaign.’

CONCLUSION

Thus we are able to conclude that the absence in IHL of specific references to cyber operations doesn’t mean that such operations cannot be subject to the foundations of IHL. If it means that and strategies of cyber warfare manufacture identical effects within the world as standard weapons (such as destruction, disruption, damage, injury or death), they are ruled by identical rules as standard weapons. Since the foundations of IHL area unit versatile enough to adopt the new technologies so the problems connected in cyber warfare may be eliminated by countering the new technologies with another technology. The technological limitations may be crossed through another technologies just for that analysis and development ought to be promoted and additionally ability of rising space is that the would like of the hour. Cyber-warfare may be a real and gift threat to world security. If world leaders decide that a global written agreement on cyber-warfare may be a productive step for guaranteeing peace between nations, then they’ll have to be compelled to notice compromises on variety of key problems. The first problems are those of enforceability, responsibility, privacy, and skill to tell apart between nation-states and criminals.

This could be achieved by making a cyber “license”, Just like a license is required to drive; a cyber “license” can permit a personal access to the data. Those obeying web and Net laws are left alone, whereas people or organizations that interact in ill-gotten behaviours are corrected or punished more severely ((Sharp Sr., “The Past, Present, and Future of Cybersecurity.”)). This idea aligns with the principles of the National Strategy for Trusted Identity in Cyberspace (NS-TIC). TNS-TIC may be a government-sponsored, non-public sector initiative that may give incentives for web users to buy a cyber “license” so as to access sure components of the net, like on-line bank accounts, social networking sites, and government ((National Strategy for Trusted Identities in Cyberspace.”The White House. April 2011)). Whereas a global written agreement together with technical and regulative advances has the potential to limit cyber-warfare, this approach features a range of limitations that ought to be the topic of more analysis. The first concern is that the ability to force countries to stick to the written agreement. European enforcement officers requested that Russia permit them to look for the supply of the attacks, citing a global law that Russia had sanctioned requiring that action. Russia refused and neither the supply nor the extent of state involvement of the attacks may well be evidenced.

Criminal Law, Terrorism and Human Rights

Dr. N S Soman, ((B.Sc., D.S.S., LL.B (Kerala), LL.M, Ph.D (Cochin).))Associate Professor, School of Legal Studies, Cochin University of Science and Technology, Kochi-22, Kerala.

There are universally accepted norms for the Protection of human rights. International standards and norms for the protection of human rights are incorporated in the International Bill of Human Rights comprising of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Efforts are also made in national level to protect basic rights of individuals in their confrontation with the state authorities. Recognition and protection of common law rights in U.K., elevation of these rights into the level of constitutional rights through a set of Bill of Rights as the case in U.S. and India are some of the notable instances.

Both in national as well as in the international scheme of protection of human rights there is room for the government to take steps to see that individual rights does not go against larger social interests. Inherent limitations of the rights themselves as well as the reasonable restrictions that could be imposed on the exercise of the recognized rights are instances of the power of the government to interfere in the area of guaranteed fundamental rights. Apart from this there could also be total negation of the guaranteed rights by the government when the situations are such that such extreme steps are required for the preservation of the national interest. International Human rights law also recognizes the need for such derogation from the obligations for the protection of human rights. This power is conceded to the national states on strict international supervision. Even in cases where it is permitted the derogation could be resorted only to the extent required to meet the emergency. Such derogation could be extended only to the shortest period required for tiding over the difficulty faced by the government. This paper is an attempt to study the emergency powers exercised by the executive under special legislations and the response of Indian Supreme Court towards these extraordinary measures. It is also attempted to examine how the international machinery responds to the government of India’s move in this direction.

National Security Act

Challenges to national security ((“National Security can be defined as part of the Government policy, having as its objective the creation of national and international conditions, favorable to the protection or extension of vital national values against existing and potential adversaries” .K.M.Mathur, Challenges to Police Human Rights and National Security, Kalpoz Publications, Delhi (2003) at p. 233.))prompt states to adopt special legislations, which grant extensive powers of arrest and detention as well as use of force. The National Security Act, 1980 was enacted to use in areas of armed conflict against those who are engaged in such conflict. However in several instances its provisions were resorted to by the governments to deal with ordinary criminals in relatively calm states and areas ((This was despite an assurance given by the Government of India to the United Nations Working Group on Enforced or Involuntary Disappearance in 1997 that the Act had only been implemented ‘in periods of crisis in order to protect the citizens against terrorism.’ Report of the Working Group on Enforced or Involuntary Disappearance, U.N.Doc.E/CN4/1997/34 at 36 as cited in Venkat Iyer, Dtate of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217)). By this unintended use of the special legislation the government circumvents the obligation under the ordinary law to produce the arrestee before a magistrate within 24 hours. This gives the authorities ample time to subject the detainees to lengthy interrogation, including under torture, without the fear of judicial intervention ((This was the finding of an official commission of enquiry headed by a high court judge, C.S. Tiwana, J., which investigated the arrests. Amnesty International, India: The Need to Review Cses against 324 Sikhs Held for more than Four Years in Jodhpur Jails, Rajasthan, London, September, 1988, A1 Index: ASA 20/03/88 at 9-10 as cited in Venkat Iyer, State of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217-218)).

Preventive Detention

India is the only country where preventive detention is resorted to in peacetime. Attempts to challenge the preventive detention scheme, was unsuccessful. In A.K. Gopalan ((A.I.R. 1950 S.C. 27))the court ruled out the possibility of reading into the constitution any concept of fairness or natural law elements and took a narrow view of the issue and allowed the positivistic doctrine to have its say in the matter. The position has changed in Maneka Gandhi ((A.I.R.1978 S.C. 597))decision. The newly found out ‘just, fair and reasonable’ procedure gave an opportunity to challenge the preventive detention law in A.K.Roy v. Union of India ((A.I.R. 1982 S.C. 710)). The Supreme Court upheld the Constitutional validity of the National Security Act.The principles of natural justice were resorted to by the petitioner to challengethe procedure laid down in sections 10 and 11 of the National Security Act, 1980. It was argued that the denial of the right to cross examine the detaining authority and the persons on whose statements the order of detention is founded is violative of natural justice and the procedure thereby becomes unfair. It was also argued that since the Act neither give the detenu the right to present oral and documentary evidence in rebuttal of the allegations made against him nor the right to be represented by a lawyer of his choice before the advisory board it is violative of constitutional rights. The Supreme Court did recognise the importance of natural justice principles, which constitute the core of just process. The court pointed out that the above-mentioned rights are essential to disprove the allegations made against a person and to establish the truth. But the court observed that there is no prescribed standard of reasonableness. That being so what kind of procedural rights should be made available to a person depends upon the proceeding in relation to which the rights are claimed. It is also made clear by the court that the question as to what kind of rights are available to the detenu in the proceedings before the advisory board has to be decided in the light of the constitutional provisions. Preventive detention being provided under the Constitution, the court observed, the statutory provisions to that extent do not offend the Constitution. In short the court refused to examine the justness or farness of the procedure adopted in preventive detention.

The court refused to accept the claim of right to cross-examine the witnesses in proceedings before the advisory boards. The rules of natural justice being one capable of fluidity and varying content the ambit of those rules must vary according to the context, the court observed. The elements of natural justice to be allowed in a particular instance have to be tailored to suit the nature of proceedings in relation to which the particular right is claimed as a component of natural justice. The question for consideration of the advisory board is not whether the detenu is guilty of any charge but whether there is sufficient cause for his detention, which is decided on subjective satisfaction of the detaining authority. The proceeding of the Advisory Board has therefore to be structured differently from the proceedings of judicial or quasi-judicial tribunals ((Id. at p. 749)). In such a context, the court observed, there is no relevance for the right of cross-examination ((Cross –examination may be necessary in proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross –examination is a powerful weapon to expose the untruthfulness of such evidence. The detention is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt.)). Another reason pointed out by the court is the unwillingness of the witnesses to come forward and the impracticability of conceding the right of cross-examination to a detenu in such cases. There may also be cases in which the sources of information of detaining authority cannot be disclosed without detriment to public interest. In these circumstances it is not possible to give to he detenu the right of cross-examination of witnesses. However, it is open for the detenu to lead evidence in rebuttal. It is within the power of the advisory board to regulate its own procedure and limit the time within which the detenu must complete the evidence. This is to ensure that the board could complete the proceedings within a limited period.

The right to consult and defended by a legal practitioner of his choice is a guaranteed right for any person arrested and detained ((Constitution of India 1950, Article 22 (2).)). However this right is not conceded to a person arrested and detained under any law of preventive detention ((Id. Article 22 (3).)). In view of this, the court observed, it is difficult to hold that the detenu has the right of legal representation before the advisory board. Since the Constitution itself contemplates that such a right should not be made available to a detenu, its denial cannot be said to be ‘unfair, unjust or unreasonable’. Though he court stick on to the requirement under Article 21 that the procedure adopted to curtail liberty must be ‘fair, just and reasonable’ it is not ready to go to its logical conclusion. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation is unfair, unjust or unreasonable. A holding to the contrary ought to have possible had the constitution been silent on this matter. That choice was not open to the courts because of the express language of Article 22 (3) (b) read with Article 22 (1). ((Supra. n. 6. at p. 745))The court added that no party, neither the government nor the detaining authority, nor the detenu would have legal representation before the board. If the detaining authority or the government takes the aid of a legal practitioner before the board, the detenu must be allowed to have the same facility. If this were not done it would amount to a breach of Article 14. The court banned the practice of government officers appearing before the board to justify detention orders by pointing out that this amount to doing ‘indirectly’ what could not be done ‘directly’. These officers should also be regarded as legal practitioners, the court pointed out.  The court observed further that regard must be had to the substance and not the form. In Nandlal v. State of Punjab ((A.I.R 1981 S.C. 2041)), while denying the request for legal assistance by the detenu the board allowed legal representation to the detaining authority. The court held that this is an arbitrary action and vitiates the impugned order. The court clarified the position that though the detenu had no right to legal assistance in the proceedings before the board, the board was not precluded from allowing such assistance. This is more so when the board allowed legal representation to the state. Arbitrariness of procedure adopted by the advisory board would vitiate the order of preventive detention ((The court emphasized that the board’s procedure must be just and fair to both the parties. The court went on to suggest that Parliament should provide for legal representation before the advisory board in the law.)).

International response

Section. 8(2) of NSA allows the authorities to keep the grounds of arrest secret from the detainee, and s. 11 provides a period of up to seven weeks for the review of detentions by an Advisory Board. Even where the grounds of arrest are given, their communication to the detainee may take up to five days in normal circumstances, up to ten days in ‘exceptional’ circumstances. These provisions in the National Security Act was found to be incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ ((ICCPR Article 9 (2). Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.))and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention ((Id. Article 9  (4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful)). These periods ‘are very considerably longer than would be compatible with art 9(4) of the Covenant’ ((U.N.Doc.CCPR/C/SR.1041, para 62. Professor Higgins drew the attention of the Attorney General of India to the fact that the United Kingdom, which had legislation that provided for administrative detention for the much smaller period of up to seven days, found it necessary to enter a derogation under art 4 of the Covenant. This criticism was repeated in 1997 by another member of the Committee, Mr. Fausto Pocar, who said that ‘a five-day period for informing detainees of the grounds for their detention and a three-week period for bringing them before the Advisory Board [are] incompatible with art 9, para 3 of the Covenant’-U.N.Doc.CCPR/C/SR.1604, para 31)).

The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act ((The period is 12 months under NSA.)). This was pointed out as against the ‘principle of proportionality’ ((U.N.Doc.CCPR/C/SR.1603,para 76 (remarks of Mr. David Kretzmer); see also, U.N.Doc CCPR/C/SR.1064, para 16 (remarks of Mr. Eckart Klein).)). This aspect of the law was pointed out as contrary to art 14(3) of the Covenant ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).)).

The Committee has also expressed the view that preventive detention being a restriction of liberty imposed as a response to the conduct of the individual concerned, ‘the decision as to continued detention must be considered as a determination falling within the meaning of Article14, para 1 ((Supra n. 14 Article14 (1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.)), of the Covenant’. That being so ‘the question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with that article’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. It was pointed out that the ‘members of the Advisory Board were appointed by the executive, which would mean that they could also be dismissed by the executive’. This was pointed out, as a provision appeared to contravene a detainee’s right under art 14 ((Remarks made by Mr. Fausto Pocar during the examination of India’s third periodic report, U.N.Doc.CCPR/C/79/Add.81,para 24.)). The Committee rejected the government of India’s argument that art 14 did not apply to preventive detention because criminal proceedings proper had not begun at that stage. It was pointed out that though that may be true in case of Indian domestic law, but care should be taken to avoid too literal an interpretation of the expression “determination of any criminal charge” in [art 14 (1)] of the Covenant’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))Furthermore, the Committee has expressed concern over the prolonged failure of the Government of India to bring into force s. 3 of the Constitution (Fourty-fourth Amendment) Act 1978 which introduced certain safeguards for persons subject to preventive detention.

Thus, the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant. They referred to the reservation concerning art 22 of the Indian Constitution, which provided for preventive detention without the legal safeguards embodied in art 9 of the Covenant. By introducing such sweeping reservations, the Government of India had tried to circumvent the need to enter formal derogations under art 4. This strategy is adopted whenever the Government failed to give full effect to the Covenant’s provisions ((U.N.Doc.CCPR/C/SR.1042, para 7 at 2)). The reservations made by India were pointed out as ‘incompatible with the object and purpose of the treaty’ ((U.N. Doc. CCPR/C/SR.1604 dated 7 November 1997, Para 34 (Comment of Mr. Prado Vallejo).))a course of action which member-states were expressly forbidden to adopt ((General Comment No.24 of the Human Rights Committee, adopted on 2 November 1994, U.N.Doc.E/1995/49.)). The Committee has repeatedly called upon India to review its reservations with a view to withdrawn them ((U.N. Docs. CCPR/C/SE.1039, para 24; CCPR/C/SR 1042, paras 3, 7, 19, 21 and 28 ; CCPR/C/79/Add.81,para 14.)).

Special Emergency Legislations

Special legislations purported to be enacted to use in unusual circumstances incorporate provisions in variance from the ordinary criminal procedure. It establishes special courts with power to sit anywhere including in camera. It can also keep identity and addresses of witnesses’ secret ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 12(2) The Committee noted the wide divergence of the Act from the fair trial guarantees contained in art 14 of the Covenant. Referring to the secrecy provisions in TADA, it was observed thus: Witnesses could keep their identity and address secret, the court [could] determine where it would hold its hearings and the decisions would not be published. My question is how can one reconcile such provisions with the Covenant, particularly Art 14, since these courts dealing with terrorist activities may pass death sentences?[1][Remarks of Mrs. Chanet, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- summarised in U.N.Doc.CCPR/C/Sr.1041, para 67])). It incorporated provision, which authorized detention in police custody up to 30 days ((Terrorist Affected Areas (Special Courts) Act 1984, s. 15 (2).))or even 60 days ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.17 (2) (b).)), where the normal rule limits it to 15 days ((The Code of Criminal Procedure, 1973 s. 167 (2) (a).)). An accused could be kept in judicial custody pending investigation up to one year ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(2).)). The Act empowered the executive Magistrates to examine and remand accused persons ((Terrorist and Disruptive Activities (Prevention) Act 1985, s. 20 (2) and (3).)). They can record statements and confessions ((Ibid.)). Bail made very difficult by requiring hearing the Public Prosecutor before issuing an order on the bail application of the accused ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(6).)). The confessions made to the police officer made admissible in trial ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.15.)). It also incorporated presumption of guilt in certain cases ((It is provided that a presumption of guilt is to be drawn in cases where arms and explosives are recovered from the possession of the accused or his finger prints are seen in the scene of crime or his co-accused made a confession or the accused himself made a confession to any person other than a police officer. [This aspect of TADA was found by the Human Rights Committee as incompatible with art 14 of the ICCPR. [Section 21, TADA 1987] This provision was characterized as ‘completely unacceptable’. [Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11-])). The above-mentioned special provisions, which are in variation from the general law of the land, were found to be in tune with the Constitutional Guarantee of Fundamental Rights ((Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569[the grounds included: Parliament’s lack of competence in enacting the Act, having regard to the fact that ‘law and order’ was a state subject and not a federal subject; the vagueness of certain terms used in the Act, eg. ‘abetment’ of terrorism; the Act overlap with ordinary criminal law and the possible discrimination this may led to in the launching of prosecutions; the extreme harshness of some of the Act’s provisions, eg. The presumption of guilt when a person is found with or near a cache of arms and ammunition; the Acts breach of well-recognised fair-trial norms, eg. The power of designated courts to hold trial’s in camera and keep the identity of witness secret; the Act’s contravention of the constitutional doctrine of division of powers, eg. By allowing executive magistrate to perform judicial tasks; and the Act’s disregard of the principles of natural justice, eg. By the absence of a requirement that an accused person be heard before his case is transferred from a designated court in one state to that in another. The petitioner also raised the question as to whether some of the curtailments of fundamental rights and freedoms which proceeding under the Act entailed could be justified in the absence of a formal proclamation of emergency.])). The court rejected most of the challenges and ruled that the Act was, largely in conformity with the constitutional guarantees of individual liberty, equality and procedural fairness. In particular, the court held that it was within the competence of Parliament to treat terrorist suspects different from the suspected of ordinary crime noting that:

Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenseless people particularly [the] poor, politicians, statesmen, government officials, police officials, army personnel…have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich-like attitude completely ignoring the impending danger ((Id. at pp. 621-22.)).

 Of course they did point out some areas, which require reconsideration to make the law fairer. The court suggested to constitute Committees to carry out periodic reviews to ensure that no area continue to be designated as ‘terrorists affected areas’ for longer than is strictly required ((Id at p. 711 para362. [The Human Rights Committee has also questioned the unduly long periods for which declarations of ‘disturbed areas’ have been in force, and noted that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation which gave rise to them. This was clearly contrary to art 4 of the Covenant, which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature.[The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.])). The court also emphasized the need to disclose the identity, names and addresses of witnesses appearing in special courts before the commencement of the trial, unless there are weighty reasons for concealment of this information ((Id. at p. 689 para 290)).

It is to be noted that the court is not unaware of the misuses of the law by the police. The court observed thus:

We have come across cases wherein the prosecution unjustifiably invokes provisions of the TADA with an oblique motive of depriving the accused person from getting bail and in some cases when the courts are inclined to grant bail in cases registered under the ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of TADA in cases, the facts of which do not warrant it, is nothing but sheer misuse of the Act by the police ((Id.  at p. 707 para 352.[ Members of the Committee also assailed the indiscriminate application of the Act. Professor Higgins, for instance, deprecated the practice whereby TADA has been used in states such as Gujarat to tackle ordinary crime. She found this ‘disturbing’, because it detracted from the government’s own self-proclaimed policy of enacting the law to fight terrorism and As with the other special security legislation, the Committee was concerned that TADA had been used without a proper derogation being filed under art 4 of the ICCPR, even though it derogated from several of the Covenant’s rights. Emphasizing that any such derogation had to be justified by reference to the terms of that article, members doubted if the Act met the ‘strictly required’ test laid down therein. [Remarks of Professor Higgins, U.N.Doc.CCPR/C/SR.1042, para 14.] They believed that TADA, along with the Armed Forces (Special Powers) Act, effectively established ‘a continuing state of emergency’ without one being declared as such and without it being subjected to any time limit.[U.N.Doc.CCPR/C/SR.1030, para 42 (remarks of Mr. Agilar).][Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- See also, U.N.Doc.CCPR/C/SR.1041, para 63.])).

However, the court seems to have influenced by the need to resort to stringent provisions to combat terrorism even at the cost of denial of procedural fairness to the persons caught in the web of criminal law. Thus, it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require.

Torture is universally disapproved. Right against torture is a non-derogable right. And all the advanced legal systems provides for exclusion of confessions obtained through coercion and torture. It is also to be noted that exclusion of evidence obtained through such violations also reduce the possible abuse of the power by the police authorities considerably. Indian law requires that an arrested person have to be produced before the magistrate within 24 hours of his arrest ((Supra, n.32 s. 57)). Prolonged detention in police custody is to be adopted only if the magistrate authorized it ((Id. s. 167 (2) (a).)). Again in no case the magistrate can authorize detention in police custody for more than 15 days ((Ibid.)). It is also provided that a confession made to a police officer is inadmissible ((Indian Evidence Act, 1872 s. 25)). All these requirements under the general procedural law have been tilted under the special emergency law adopted by the Parliament. Now it is possible for the police to extract confessions by using the unusual powers. For remanding a person into police custody it does not require the intervention of a judicial officer. It is sufficient if an executive magistrate authorizes it. The executive magistrate could record confessions. Moreover the confessions given to a police officer could be proved before the court. Coupled with these relaxations of the procedures the adverse presumption of guilt, which the court could draw, adds to the peril of the accused. All these factors create a situation wherein the procedural safeguards against possible abuse of power by the police, available under the normal procedural law, no longer available for a person caught under the special legislations. This makes the position of the accused person precarious and is liable to compromise in his liberty.

Under the international human rights law deviation from the basic obligations created therein is possible in specified cases. For example Article 4 of the ICCPR ((Supra n. 14  Article 4 (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. (3)  Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.))provides for derogation. Derogation can be exercised in case of public emergency, which threatens the life of the nation. It is required that the existence of such an emergency shall be officially proclaimed. When these conditions are satisfied the state parties could resort to measures derogating from their obligations under ICCPR. This derogation shall only be to the extent strictly required by the exigencies of the situation. It is provided further thatthe measures so adopted under the power of derogation shall not be against any other international obligations. Again such a measure shall not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Any state which avails the right of derogation is duty bound to inform other state parties through the Secretary-General of the United Nations. This notification shall contain the provisions from which the state has derogated as well as the reasons for the same. Termination of the derogation shall also be notified likewise.

In this context it is to be noted that the actions of the Government of India is criticized as incompatible with the requirements under the international human rights obligations. It was pointed out that the laws resorted to by the Government of India, infringed a large number of rights guaranteed by the ICCPR. The Government of India resorted to this unusual emergency measures, which are incompatible with the ICCPR, without entering formal derogations under art 4 of the Covenant ((It raised this issue as far back as 1984 during its examination of India’s first periodic report, but received no satisfactory response from the Government which merely insisted that ‘the rights specified in art 4 from which no derogation was allowed were fully preserved under the Indian Constitution even during emergency’-see, U.N. Doc.CCPR/C/SR.493, para 20, and CCPR/C/SR.498,para 8)). The Human Rights Committee has expressed deep concern over this practice. It has been repeatedly pointed out that special security legislation ((The National Security Act, the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act))contained provisions, which effectively derogated from the rights contained in arts 6 ((Supra n. 14  Article 6: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.)), 9 ((IdArticle 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation))and 14 ((IdArticle 14: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.))of the Covenant ((U.N. Doc.CCPR/C/SR.1041, para 61-63 (remarks of Prof Higgins); ibid para 76 (remarks of Mr.El-Shafei); U.N.Doc.CCPR/C/SR.1042,para 16 (remarks of Mr.Aguilar).)). This practice of the Government of India resulted in a situation of a continuing state of emergency without it being officially proclaimed as such ((U.N.Doc.CCPR/C/SR.1039, para 42 (remarks of Mr. Aguilar).)). It was aired the concern whether the special laws enacted by India met with the test of ‘strict requirement’ laid down in Art. 4 ((U.N.Doc.CCPR/C/SR.1042, para 14. [. For the text of Article 4 see supra. n.48])). The Government of India tried to justify the practice by pointing out that the special laws are enforced in some regions only and not through out India. The Human Rights Committee rejecting this justification observed that ‘they are still derogations of rights under the Covenant and would require notification to [the Committee]’ ((Remarks of Prof Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993. AI Index: ASA20/05/93 at 7)). The special law has been seen to contravene the guarantee of the right to life contained in art 6 of the Covenant. The existing practice, the Committee pointed out, led to ‘de facto declaration of emergency which were not in line with the Covenant’s provisions’ ((U.N.Doc.CCPR/C/SR.1603, para 73 (remarks of Mr. David Kretzmer).)).

The Constitution of India does not provide for any non-derogable rights in par with the requirements of article 4 of the Covenant ((U.N.Doc.CCPR/C/SR.493 (remarks of Sir Vincent Evans during the Committee’ examination of India’s first periodic report).)). Committee has questioned the rationale of this constitutional position ((Except the right to life and personal liberty (art 21) and the prohibition against retroactive legislation (Art 20).)). The provisions in the Constitution of India, allows automatic suspension of various fundamental rights during emergencies. The Committee wondered whether there existed any legal mechanism to ensure the proportionality principle implicit in the Covenant ((U.N.Doc.CCPR/C/SR. 494, para 7 (remarks of Mr.Christian Tomuschat). The Attorney General of India did not make any direct response to this query.)).

Armed Forces (Special Powers) Act

The Armed Forces (Special Powers) Act empowered the civil authorities to resort to the help of Army to repress civil disturbances from the part of militants. As such army personnel are deployed in specified areas to resort to drastic powers to bring the ‘disturbed areas’ under control and bring them back to normalcy. However in practice the powers seen to work against the normal administrative system resulting in situation wherein the civil authorities are made helpless and powerless and the Army was running a parallel government. In this context the following observation is relevant.

“The civil law has, unfortunately, ceased to exist in Senapati District in Manipur due to the excesses committed by the Assam Rifles with complete disregard shown to civil administration. The Assam Rifles are running [a] parallel administration in the area. The Deputy Commissioner and Superintendent of Police were wrongly confined, humiliated and prevented from discharging their official duties by the Security Forces ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at pp. 60-61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 250.)).”

The Joint Secretary for Home who, after a visit to the area along with the Chief Minister of the state, wrote as follows endorsed this complaint:

“The Assam Rifles authorities have been behaving with the civil administration in an extremely contemptuous manner and treat virtually every civil functionary as anti-national. This has led to a virtual collapse of civil administration in the area as the government official[s] visiting the area is scared of torture/harassment at the hands of [the] Assam Rifles ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at p.61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 251.)).”

The constitutional validity of The Armed Forces (Special Powers) Act was challenged in Naga People’s Movement of Human Rights v. Union of India (([1998] 2 S.C..C. 109)). The Supreme Court rejected the challenge and held it to be constitutionally valid. Section 3 of the Act, authorized the government to declare an area as ‘disturbed area’. This provision was challenged before the Supreme Court. It was argued that the provision is vague and fails to provide any guidelines in identifying an area as ‘disturbed area’. The court rejected the argument and held that the requirement that there must exist a grave situation of law and order, which warranted the use of armed forces in aid of the civil power, was sufficient guidance ((Id. at p. 140)). However the court took care to read into the statutory scheme an implied duty on the government to review periodically the gravity of any situation, which gives rise to declaration of ‘disturbed area’. The court further held that such reviews must take place at least once in every six months. The court further added that even in cases where the government finds it necessary to continue a declaration, it is duty bound to look at the feasibility of reducing its geographical extent ((Id. at p. 141.)).

Though it was attempted to challenge the provisions of the Act as arbitrary since it conferred extensive powers (including the power to use lethal force) on relatively low ranking non-commissioned officers, the court refused to accept the argument. Such officers, said the court, usually had considerable status and experience and could be trusted with important powers ((Id. at p. 143-144.)). The court also rejected as untenable the argument that the power to open fire (even to the causing of death) conferred by the Act was unreasonable and arbitrary. The court pointed out that these powers are conferred with sufficient safeguards. In order to exercise the powers certain conditions are to be satisfied. Firstly there should exist a prohibitory order at the time. Secondly the circumstances should be such that opening of fire is required to maintain public order and lastly, due warning had been given for the intended action ((Id. at p. 145)). The Act requires that a person arrested by the armed forces is to be handed over to the nearest police station ‘with the least possible delay’. The court construed the provision to mean that every such person would have to be taken to the nearest police station soon enough as to enable him or her to be produced before a magistrate within 24 hours of arrest, as required by Art. 22 of the Constitution ((Id. at p. 146)). It was also ruled by the court that there is a duty to hand over any property or arms, ammunition or explosive substances seized by the armed forces to the nearest police station ‘with the least possible delay’. This, the court said, is implicit in the Act. The reason for such a reading is that such property or material would be required to be tendered in evidence in any criminal proceedings that may follow ((Id. at p. 147)). According to section 6 of the Act prior sanction of the government is required to initiate legal proceedings against any member of the armed forces acting under the Act. This was challenged as discriminatory and arbitrary. It was argued that the provision conferred arbitrary power to government since the Act does not provide for any guidelines in exercising the power. The court rejected the plea and pointed out that such a distinction had already existed under ordinary law, and this had been held to be lawful by previous judgment of the court ((Id. at p. 150 The reference here is s.197 of Cr.P.C and the decision in Matagog Dubey v. H.C.Bhari, (1955) 2 S.C.R. 925.)). However the court took care to specify that any order of the government granting or refusing sanction must be accompanied by reasons ((Id. at p. 150)).

The argument that the Act had been abused was not found favor with the court as a relevant factor in deciding the constitutional validity of the Act. The court accepted the government’s statement that members of the armed forces had been issued with detailed instructions by the army headquarters in the form of ‘dos and don’ts’ concerning the Act, and that violations of the instructions were made punishable under the Army Act. The court stressed the binding nature of the instructions and emphasized the need for the government to punish those found infringing them ((Id. at p. 150-151.)). The court also directed the government to incorporate in the instructions the various safeguards which had been laid down in relation to the use of the Act:

“In order that the people feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces, it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred by the Act should be thoroughly inquired into and, if it is found that there is substance in the allegations, the victim should be suitably compensated by the state and the requisite sanction under s.6 of the Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation ((Id. at p. 152)).

The Court limited its power of review to the determination of the relevance of the material tendered by the government in support of its decision to invoke such laws ((Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 255)). It was ruled by the court that it could not independently assess the sufficiency of the material placed by the government for invoking the provisions of the Armed Forces (Special Powers) Act ((Ibid.)).

International response

The sweeping powers granted by Armed Forces (Special Powers) Act to the armed forces were a matter of concern for many members of the Human Rights Committee. These powers, they believe, were open to abuse. According to the Members of the Committee these powers were ((U.N.Doc.CCPR/C/SR.1040, para 55 (remarks of Mr. Amos Wako).))‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant ((General Comment 6 on art 6 reads in part: The protection against arbitrary deprivation of life…is of paramount importance. The Committee considers that state-parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the state is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.)), as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials ((Adopted by the UN General Assembly on 17 December 1979 (Res.34/169). The Commentary on art 3 of the Code reads in part: (a) This provisions emphasises that he use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorised to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected ogffenders, no force going beyond that may be used… (c) …The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain and apprehend the suspected offender…)). One member highlighted the dangers of the width. The Act empowered the soldiers to shoot to kill anyone acting in contravention of a law prohibiting the assembly of five or more persons. Since the violation of the prohibition is not qualified it can even take in assemblies of person joining together for harmless purposes such as marriage or other ceremonies, which has nothing to do with the keeping of law and order. It was pointed out by way of criticism that the wording here is so broad that it could cover lawful exercise of basic liberties ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at9. To this, the Attorney General of India replied that the use of firearms was only authorised to break up assemblies, which had been declared illegal under an order by a magistrate, but he provided no legal authority for this.)).’

The Committee has expressed  its concern about the provision, which confers immunity on members of the armed forces from prosecution. It was pointed out as one which ran counter to the terms of art 2[3] ((This article requires states-parties to ensure that an effective remedy is provided to anyone whose rights had been violated ‘notwithstanding that the violation has been committed by persons acting in an official capacity.’))of the Covenant. It was pointed out that the phrase ‘acts purported to be done under the Act’ could justify any officer who makes a plea that he was under the notion that he was performing his duty while by killing a person. It was pointed out that such a phrase is highly dangerous when one is dealing with right to life ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee,  London, March 1993, AI Index: ASA 20/05/93 at 9)).The Committee noted with disapproval the unduly long periods for which declarations of ‘disturbed areas’ have been in force. It was observed by the Committee that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation, which gave rise to them ((U.N.Doc.CCPR/C/SR.1041,para 77 (remarks of Mr. Omran El-Shafei).)). This position runs counter to the requirement under Article 4 of the ICCPR which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature ((The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.)). It also expressed doubt as to whether the Armed Forces (Special Powers) Act could be justified under art 4 of the Covenant as a law that was ‘strictly required by the exigencies of the situation.’ The Government tried to justify the Act by pointing out that the provisions authorizing use of firearms were rarely used. But it was pointed out that if that is the case these provisions cannot be considered as “strictly required by the exigencies of the situation” and it could be better to get rid of them ((Remarks of Professor Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee,  London, March 1993, AI Index: ASA 20/05/93 at 10)).

CONCLUSION

Protection of societal interest even at the cost of denial or restriction on basic individual rights are the norm accepted both in national legal systems as well as international human rights jurisprudence. International Human rights law recognizes the need for such derogation from the obligations created under ICCPR for the protection of human rights, though under strict international supervision. This is visualized as an emergency power to be resorted to temporarily and to the extent require meeting the emergency. Such an emergency measures shall last for the shortest period required for tiding over the difficulty faced by the government. The National Security Act, 1980 that provides for preventive detention in peacetime, is in variance with the international human rights norm that insists for declared emergency and public derogation from the obligations created by ICCPR as a prerequisite for exercise of such powers. Indian Supreme Court refused to look into the ‘fairness, justness and reasonableness’ of the preventive detention law. It justified the law of preventive detention on the ground that the Constitution provided for it. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation as ‘unfair, unjust or unreasonable’. However the court conceded a limited right to be represented by lawyer in cases where the government avails such a right. The Human Rights Committee observed that the provisions in the National Security Act is incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention. The period for which a person could be detained without the opportunity of examining the legality of such detention was pointed out by the Committee as ‘…very considerably longer than would be compatible with art 9(4) of the Covenant’. The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act. This was pointed out as against the ‘principle of proportionality’. This aspect of the law was pointed out as contrary to art 14(3) of the Covenant.

‘The question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with Article14, para 1. The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. Thus the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant.

Special legislations, which incorporate provisions in variance from the ordinary criminal procedure, were found to be in tune with the constitutional guarantee of Fundamental Rights. Thus it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require and invited criticism that the actions of the Government of India is incompatible with the requirements under the international human rights obligations.

It infringed a large number of rights guaranteed by the ICCPR resulting in a situation of a continuing state of emergency without it being officially proclaimed as such. The Human Rights Committee has questioned the rationale of not providing for any non-derogable rights under the Constitution of India.

The Armed Forces (Special Powers) Act was held to be constitutionally valid by the Supreme Court. The sweeping powers granted by Armed Forces (Special Powers) Act were criticized by the Human Rights Committee as one open to abuse. These powers were ‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant, as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials. Thus it could be seen that Government of India is at the receiving end in the matter of protection of human rights and the legal framework existing in India does not guarantee adequate protection to basic rights. This is specifically true with regard to emergency powers. The courts also take hands off position and fail to discharge its basic obligation to safeguard the liberty.

Green Ganges…!

Author: Rajiv Krish*

Recently, my family and I relocated back from the silicon valley of the east to the Venice of east, a change which accountants terms as a change from service tax (tax for software services in the silicon valley) to value added tax (VAT tax for trade in the Indian town of Venice). Kerala, in its entirety is a state enveloped with greenery and stamped with rain. A traveler passing through her breadth would see the most wonderful sight of nature in this part which is south to the Konkan belt of the Western Ghats. Environmentalists would envy (as if their place is not this lush green), doctors would de-stress (and would advise patients too, to get de-stressed here) and the real estate brokers will jump with ecstasy (that they got to build a green-facing apartment now). It is a peculiar scenery, west of the Eastern ghats and during the monsoon plants, trees and natural vegetation would grow so much that the nature appears as if it has not done a hair cutting since months. Continue reading “Green Ganges…!”

SC backs Right to Education

The Supreme Court on April 12, 2012 by a majority of 2:1 upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009, which provides for free and compulsory education to children between the age of 6 and 14 years and mandates government/aided/and non-minority unaided schools to reserve 25 per cent of the seats for these children.

A Bench of Chief Justice S.H. Kapadia and Justice Swatanter Kumar while upholding the law, however, held that it would not be applicable to unaided minority schools. Justice K.S. Radhakrishnan gave a dissenting judgment. Continue reading “SC backs Right to Education”