chotanagpur law journal - Chotanagpur Law College

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CHOTANAGPUR LAW JOURNAL
ISSN - 0973-5858
l Vol - 6
l No -6
Published by :
CHOTANAGPUR LAW COLLEGE, NYAY VIHAR CAMPUS NAMKUM, RANCHI
RANCHI UNIVERSITY, RANCHI, JHARKHAND
l 2012-13
Board of Patron
Vice-Chancellor of Ranchi University, Ranchi : Chief Patron, Ex-Officio
Mr. C.P.Singh, (M.L.A.) President, Governing Body : Executive Chief Patron
Mr. Lal Muni Sahu, Secretary, Governing Body : Patron
Editorial Advisory Board
Hon’ble Justice Mr. R.K.Merathia, Rtd. Judge, Jharkhand High Court, Ranchi, Jharkhand
Hon’ble Justice Mr. A.P.Sinha, Rtd. Judge, Patna High Court, Ranchi Bench, Jharkhand
Hon’ble Justice Mr. Vikramaditya Prasad, Rtd. Judge, Jharkhand High Court, Ranchi, Jharkhand
Prof. B.C.Nirmal, Head & Dean, Law School, Banaras Hindu University, Varanasi, U.P.
Prof. Umesh Chandra, Professor of Law, Allahabad University, Allahabad, U.P.
Prof. B.P.Diwedi, Professor of Law, North Bengal University,Siliguri, W.B.
Prof. R.N.Sharma, Professor of Law, J.N.V., Jodhpur University, Rajasthan
Prof. K. N. Poddar, Professor of Law, Ex. Principal, Patna Law College, Patna, Bihar
Prof. Kamaljeet Singh, Professor of Law,H.P. University,Shimla, H.P.
Prof. Rakesh Verma, Professor of Law,Patna Law College, Patna, Bihar
Prof. Ratan Singh, Ex-Head of Dept., GNDU, Amrtisar, Punjab
Dr. Ajay Kumar, Associate Professor, Chanakya National Law University, Patna, Bihar
Dr. Rakesh Kumar, Associate Professor, Agra College, Agra, U.P.
Dr. Uday Shankar, Assistant Professor, RGSOIPL, IIT Kharagpur, W.B.
Dr. Anurag Deep, Associate Professor, Indian Law Institute, New Delhi.
Dr. Harmeet Singh Sandhu, GNDU, Regional Campus, Jalandhar, Punjab
Editorial Board
Prof. R.K.Walia : Chairman Dr. P.K.Chaturvedi : Executive Editor
Prof. V.Kumar : Member Mrs. Sakshi Pathak : Co-Editor
Dr. Nandita Adhikari : Member Mr. V. N. Choudhary : Co-Editor
Dr. Gandi A. Bilung : Member Mr. Rohan Kashyap : Asstt. Editor (Academic)
Dr. J. P. Gupta : Member
BARRISTER S. K. SAHAY
Founder: Chotanagpur Law College, Ranchi
Cite This Volume As: 6CNLJ-2013
Important Notes
The Journal of Chotanagpur Law College is published Bi-annually. Contributions
to the Journal are invited in the form of articles, notes and case comments. Contributions should be typed in double space on one side of the A-4 size paper with
proper footnote.(The recommended footnote style is Blue Book citation) Main text
must be - font size 12 pt. and footnote 10 pt. and in Times New Roman should also
be sent in 700 MB Compact Disk or as an attachment with e- mail at: [email protected]
The Chotanagpur Law College, Ranchi shall be the sole copyright owner of all
the published material. Apart from fair dealing for the purpose of research, private study or criticism no part of this Journal may be copied, adapted, abridged,
translate, stored in any form by any means whether electronic, mechanical, digital,
optical, photographic, or otherwise without prior written permission from the publisher.
The Board of Editors, Publishers and Printer do not claim any responsibility for the
views expressed by the contributors and for the errors, if any, in the information
contained in the Journal.
Suggestions for the improvement of this Journal are welcomed and will be greatfully acknowledged.
A Peer Reviewed / Referreed Journal
Chotanagpur Law Journal
ESTD. 1954
INDEX
ISSN-0973-5858
SL.No
01.
02.
03.
04.
Volume 6
Article
“To Fill The Abyss’s Void”*
The Future of “Unacceptable
Risk” In Child Sexual Abuse
Cases
Prevention of Brick Field Pollution in Bangladesh: A Legal
analysis
No. 6
2012-2013
Author
Designation
Frank Bates
Professor Of Law,
University Of
Newcastle (NSW)
Zelina Sultana
Page
No
1-22
Lecturer, Department of
Law, Jagannath Univer- 23-32
sity, Dhaka, Bangladesh
Former Professor of
Law, Delhi UniverProf. B.B. Pande
sity and Consultant
33-46
(Research) National
Human Rights Commission
* Head and Dean,
Department of Law,
University of Kashmir.
Legal Protection of GeographiDr. Farooq
** Research Scholar
cal Indications in Kashmir: A
Ahmad Mir*
and Project Fellow,
47-57
Case Study of Chain Stitch and Mir Farhatul Aen**
Department of Law,
Crewel Embroidery
Mir Junaid Alam*** University of Kashmir.
*** Research Scholar,
Department of Law,
University of Kashmir.
Fundamental Duties’ as a
Stratagem for Augmenting the
Human Rights?
05.
06.
07.
08.
The Land Acquisition, Rehabilitation And Resettlement
Bill, 2011: An Atempt To Wipe
Out The Tears Of Displaced
Person
Coastal Ecology And Coastal
Zone Management: One Room
Many Doors
MRTP Commission: Architect
of Unfair Trade Practice
Jurisprudence in India
The Vantage Point: Clash
Between Minimum Wages Act,
1948 and the Mahatma Gandhi
National Rural Employment
Guarantee Act, 2005
09.
Right To Food And Food
Security Initiative In Indian
Perspective
10.
Forest Rights as Appurtenant
to Social Inclusion in India: A
Socio-legal Study
Prof. (Dr.) Kamal
Jeet Singh*
Vikram Singh**
Vijay Chaudhary***
*Director, University
Institute of Legal Studies, H.P.University,
Avalodge Campus,
Chaura Maidan, Shimla
** Ph.D Scholar,
Deptt. of Laws,
H.P.University
*** Ph.D Scholar,
Deptt. of Laws,
H.P.University
Associate Professor,
Faculty of Law,
Dr. Jai S. Singh
University of Allahabad, Allahabad, U.P. India
Reader, Law School,
Dr. Manoj Kumar
Banaras Hindu UniverPadhy
sity, Varanasi;
* Assistant Professor,
Rajiv Gandhi School
of Intellectual Property
Law, Indian Institute of
Technology, Kharagpur
Dr. Uday Shankar* ** Final Year Student,
Rajiv Gandhi School
Saurabh Bindal** of Intellectual Property
Nakul Batra*** Technology, Kharagpur
*** Final Year Student,
Rajiv Gandhi School
of Intellectual Property
Technology, Kharagpur
Assistant Professor
Dr. Sanjiv Kumar
T.N.B. Law College,
Sinha
Bhagalpur-1
Assistant Professor of
Law, National UniverDebasis Poddar
sity of Study and Research in Law, Ranchi,
Jharkhand
58-65
66-92
93112
113120
121139
140150
11.
12.
13.
14.
15.
16.
17.
Peacemaking Criminology
Dr. Vibha Hetu
A Cry Still Unheard: The
Menace of Acid Attacks in
India
Dr H.S.Rai
Analysis Of Dna Fingerprinting In Criminal Proceedings:
Amitabh Singh*
An Overview
Salma Begum
Laskar**
“International Humanitarian
Law : Is it sufficient for protecting the environment during
armed conflicts?”**
Protection Of Cultural Heritage
During Armed Conflicts: International Legal Response
Legislative Measures for Prevention of Corruption: A Study
in the Special Reference of
Lokpal Institution
Interpretation of Statutes visà-vis Judicial Legislation by
Supreme Court- The Recent
Trend
Y. Premananda
Singh
Senior Research Associate and Executive
member, Centre for
Victimology & Psychological Studies, Jindal
Global Law School,
O.P. Jindal Global University (JGU), Sonipat
Assistant Professor,
Merut College, Merut.
U.P.
* Asst. Professor,
Dept. of Law, Assam
University, Silchar.
** LL.M Student, 1st
Sem, Dept of Law,
Assam University,
Silchar
151178
179190
191199
Mizoram Law College, 200Aizawl.
209
ShishirTiwari
Department of Law,
210North-Eastern Hill
University, Shillong-22, 251
Meghalaya, INDIA
Chandra Shekhar
Joshi
Research Scholar(Law),
252Faculty of Law, Kumaun University,
260
S.S.J.Campus, Almora.
Parthsarthi Anand
Swaroop Pati
Advocate, Jharkhand
High Court, Ranchi.
261BSL LL.B, LLM, Ph.D
Research Scholar, Ran- 271
chi University, Ranchi
18.
Electoral Politics in India :
Challenges & Opportunities
Dr. Dhirendra
Tripathi
Assistant Professor
(Pol. Sc.), Birsa College, Khunti, Ranchi
University, Ranchi
(Jharkhand)
272281
Notes & Comments
01.
02.
Right To Information: The Law
And The Judicial Approach
Assigned To Evolve, Compelled To Crumble But Destined To Dictate, Defend And
Deliver : Indian Constitution Under Trial
Honour Killing- A Social Evil
03.
Dr Sanjeev Kumar Head (law Dept) BurdTiwari
wan University
Dr. Shiv Shanker
Vyas*
Sankalp Tyagi**
Dr. Binay Kumar
Das
282285
*Assistant Professor,
SGN Khalsa Law PG
College, Sriganganagar. 286-
284
** Legal Officer,
Reserve Bank of India,
Central Office Mumbai
Reader, ULC,
Utkal University,
Bhubaneswar, Odisha
290293
Book Review
01.
Uncodified Hindu Jurisprudence by Dr Pankaj Kumar
Chaturvedi
Dr Arun Kumar
Singh
Assistant Professor, Department of Law, North 294Eastern Hill University, 295
Shillong-22
CHOTANAGPUR LAW COLLEGE
NAMKUM,RANCHI, JHARKHAND
ESTD. 1954
Estd. 1954
Chancellor
:
Vice-Chancellor
Pro Vice-Chancellor
President of Governing body
Secretary of Governing Body
Dean Faculty of Law
Principal of the College
:
:
:
:
:
:
His Excellency Hon’ble Dr. Syed Ahmed
( Governor of Jharkhand)
Prof. (Dr.) L. N. Bhagat
Prof. (Dr.) B.P.Sharan
Mr. C. P. Singh (M. L. A., Ranchi)
Mr. L. M. Sahu
Prof. R. K. Walia
Prof. R. K. Walia
The Governing Body Members :
( Governing Body Constituted under Jharkhand State University Act 2002 & Statutes No.32)
Name
Mr. C. P. Singh (M. L. A., Ranchi)
Mr. L. M. Sahu
Prof.(Dr.) Ramesh Kumar Panday
S. D. O., Ranchi
Mr. B. P. Azad
Prof. R. K. Walia
Dr. P. K. Chaturvedi
Designation
President
Secretary
University Representative
Ex-Officio
Donor Member
Principal
Member (T.R)
The Faculty Staff :
Name
Qualification
Designation
Adhikari Nandita
M.L., Ph.D. (Law)
Assistant Professor
Bilung Gandhi Anand
LL.M, Ph.D. (Law)
Assistant Professor
Chaturvedi Pankaj Kumar
M.A., LL.M., Ph.D. (Law)
Das Manas
LL.M
Gupta Jai Prakash
M.Sc., B.A, LL.B.,
Kumar Rabindra
L.L.M.
Kumar Vijay
B.Sc., LL.M., DLT
Kumar Vikash Sinha
B.A. LL.B
Part Time Asst. Professor
Lal Lalit Kumar
B.Sc., LL.B.,
Part Time Asstt. Professor
Mahato K. C.
M.A., LL.B.,
Pathak Sakshi
L.L.M.
Sahu Lal Muni
B.L.,
Tiwari Mahesh
M.A., LL.B.
Walia Raj Kumar
B.Sc., LL.M.
Waris H.
M.A., LL.B., Ph.D (Psychology)
Assistant Professor
On Contract - Asstt. Professor
Asstt. Professor
Principal
Library Staff:
Name
Choudhary Vidyanand
Prashar Ravi
Verma Manoj
Qualification
M.Lib., LL.B., DBA Dip. E-Commerce
(Computer)
LL.B.
B.A.
Designation
Deputy Librarian
Office Asstt. (Library)(U.D.C)
Office Asstt. (Library)
Accounts & Administration Staff:
Name
Agrawal Devender Kumar
Ali Ashraf
Ashrafi Tanweer
Kumar Bharat
Kumar Deepak
Mohammad Shahid
Singh S.N.
Singh A.K.
Verma P.N.
Qualification
B.A., LL.B.
B.A., LL.B
B.A., LL.B
B.A.
B.A., LL.B
B.A.(Hons), ADSM, DIM(Diploma in
Multimedia)
Matriculation
B.A., LL.B
B.A., LL.B (On Contract Basis)
Non-Teaching Staff (Group D):
Name
Akhtar Tanweer
Hare Ram
Hussain Jawed
Kullu Thomas
Manjhi Basant Ram
Manjhi Pashupati Ram
Md. Namin
Ram Damodar
Sinha Praveen Kumar
Verma Rajesh
Yadav Hare Ram
Designation
General Section
Library Section
General Section
Principal Chamber
Account Section
Night Guard
Electrician
Principal Chamber
General Section
Principal Chamber
General Section
Designation
Office Assistant (U.D.C)
Office Assistant
Office Assistant
Office Assistant
Computer In-charge
Office Assistant
Office Assistant
1
“To Fill The Abyss’s Void”1 The Future of “Unacceptable Risk”
In Child Sexual Abuse Cases
Frank Bates2
Introductory
The determinative test for the assessment of child sexual abuse as laid down in Australian
law is, by now, well known, if not readily capable of assessment. Thus, in the decision of the
High Court of Australia in M v M,3 it was said4 that, “To achieve a proper balance, the test is best
expressed by saying that a court will not grant custody or access to a parent if that custody or access
would expose the child to an unacceptable risk of sexual abuse.”
Almost inevitably, it seems to the present writer,5 the test has attracted not inconsiderable
criticism, its apparently being, as Parkinson has written,6 indeterminate and circular and fundamentally
inconsistent with the basic premise of all adjudicative process, that determination should be made on
the basis of facts rather than mere suspicions.
In such a context, it is equally inevitable that courts would be seeking to move away from
the test itself and to seek to devise, if not some different formulation, some new tactical approach.
The task of the courts is not made any easier, as I have elsewhere suggested,7 by the fragmented
approach taken both judicially and legislatively towards the very notion of children’s’ rights. Thus,
for instance, the most recent substantial amendment to the Family Law Act 1975, the Family Law
(Shared Parenting Responsibility) Act 2006, may, indeed, relate to the notion of shared parenting but
it cannot, effectively in any respect be regarded as child, as opposed to parent, orientated.8
Accordingly, it is the purpose of this article to examine some developments in Australian law
to attempt to ascertain whether the courts are genuinely seeking to avoid the test laid down in M9 and,
if so, with what they are seeking to replace it.
1 “It seriously, sadly, runs away To fill the abyss’s void with emptiness” Robert Frost, “West-running Brook”
2 Emeritus Professor of Law, University of Newcastle (NSW)
3 (1988) 166 CLR 69.
4 Ibid at 78 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
5 See, for example, F Bates, “Evidence, Child Sexual Abuse and the High Court of Australia” (1990) 39 ICLQ 413.
6 P Parkinson, “Family Law and Parent and Child Contact: Assessing the Risk of Sexual Abuse” (1999) 23 Melbourne
ULR 345 at 351.
7 F Bates, “ ‘Out of Everywhere Into Here’ – The Disparate Bases of Children’s Rights in Australia” (2007) 15 Asia
Pacific LR 235.
8 Ibid at 253.
9 It should be said that the unacceptable risk test, has not been confined by the courts to cases involving child sexual
abuse. See, for instance, Re David [1997] FLC 92 – 776 and A v A [1998] FLC 82 – 800.
2
Relevant Case Law
On the issue of context, it may well be that, in many cases, allegations of sexual abuse may
only form a part of the entire pattern of the child’s life and, hence, of the issues which the court may
have to take into account in determining the best interests of the child, which, even after the 2006
legislation, remain the paramount consideration in the determination of such matters.10 A useful
initial instance is provided by the decision of the Full Court of the Family Court of Australia in KN
and Child Representatives and Ors.11
In that case, the child had lived with her mother and the mother’s de facto partner from
birth until the mother was admitted to a psychiatric hospital. The child then lived with her maternal
grandparents, who brought proceedings seeking a residence order and that the mother should have
contact with the child. On the other hand, they sought an order that the de facto partner be restrained
from coming into contact with the child. They alleged that the child had complained that the de
facto partner – the child was aged seven years at the time of the hearing – had acted in a sexually
inappropriate manner and that he and the mother had a violent relationship.
The trial judge concluded that living with the mother presented an unacceptable risk to the
child and residence was granted to the grandparents.
On appeal, the mother and the child representatives challenged the trial judge’s findings
in relation to sexual abuse and violence and the aggregation of those findings, together with the
mother’s psychiatric history, which seemed to have led the trial judge to conclude that there was an
unacceptable risk of harm to the child, were she to live with the mother. They also made submissions
to the effect that the judge had failed to make findings in relation to the attitude of the grandparents
regarding the child’s relationship with the mother and as to the likelihood that they would comply
with court orders.
The Full Court allowed the appeal and remitted the matter for rehearing. In so doing, Bryant
CJ and Kay J referred,12 first, to M v M and, then, more specifically, to the dissenting judgment of
Fogarty J in N v S.13 In particular the judges first noted14 the earlier judge’s comment15 to the effect
that, in the end, he doubted whether a court could go beyond saying that, “. . . there must be actual
evidence which at the very least gives rise to the conclusion that behaviour may have occurred or
may occur which has had or could have deleterious effects on the child concerned. It must be more
than mere conjecture and need not go as far as the proof that would justify a conviction.” It followed,
10 Family Law Act 1975 s 60B(1)(a).
11 [2006] FLC 93 – 284.
12 Ibid at 80, 866.
13 [1996] FLC 92 – 655.
14 [2006] FLC 93 – 284 at 80, 867.
15 [1996] FLC 92 – 655 at 82, 713. Quoting from Cooke P, with whom Hardie Boys J agreed, in the decision of the
New Zealand Court of Appeal in M v Y [1994] NZFLR 1 at 34.
3
Fogarty J continued16 that, “. . . the essential importance of the unacceptable risk question as I see it
is in its direction to judges to give real and substantial consideration to the facts of the case, and to
decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk
of harm to the child. Thus the value of the expression is not in a magical provision of an appropriate
standard, but in its direction to judges to consider deeply where the facts of the particular case fall,
and to explain adequately their findings in this regard.”
In addition, the comment of Fogarty J in N and S, to the effect that M v M should be noted,
even though it did not receive the emphasis given to it by Bryant CJ and Kay J in KN. There,
Fogarty J had stated17 that it, “. . . must be read as taking a cautious approach to the issue, in light of
the paramouncy of the welfare of the child, and the gravity of the possible effects of sexual abuse.
Largely it means that if there is an ascertainable risk of harm the court must so mould its orders that
as to avoid exposure to the child to that harm. It would be unthinkable to take a risk with the child’s
welfare or to ‘experiment’ in such cases”.
In KN, Bryant CJ and Kay J went to note18 Fogarty J’s comment in N and S19 that, “. . . failure
to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself
answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask
whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may
nonetheless be useful in some cases. There is however, a requirement to ask whether the evidence
establishes an unacceptable risk.” Bryant CJ and Kay J were of the opinion that it was clear that if the
judicial task were approached through applying those principles and asking the questions suggested
by Fogarty J in N and S, the court could not properly be satisfied that the matters complained of
raised any real concern that the child was at risk of being sexually abused by the mother’s partner
when the child was living in the mother’s household. The violence which had been relied on by the
trial judge in KN as representing a second element in the finding that there would be an unacceptable
risk of allowing the child to live with her mother did not, in the judges’ view,20 enable or support any
such finding.
That having been said, Bryant CJ and Kay J turned their attention towards the task of the
trial judge in evaluating the evidence of violence and in determining the relevance of that evidence
to the outcome of a case involving children. That issue had earlier been considered by Chisholm J
in JG v BG.21 There, after having noted the effects of violence directed at children or committed in
their presence, the judge went on to comment that he did not think that, “. . . as a matter of law that
other forms of family violence are incapable of being relevant to the welfare of children. Violence
occurring between household members, even though occurring away from the children may have the
potential to cause them distress and harm, for example where it affects the parenting of the custodial
16 [1996] FLC 92 – 655 at 83, 713.
17 Ibid.
18 [2006] FLC 93 – 284 at 80, 868.
19 [1996] FLC 92 – 655 at 82, 715.
20 [2006] FLC 93 – 284 at 80, 869.
21 [1994] FLC 92 – 515 at 81, 3116.
4
parent. Similarly threats of violence may have an impact on the welfare of children.”
In that context, the judge continued by noting that the nature and extent of such violence
might take many forms which have different significance in different cases.22 However, Chisholm
J continued, especially significantly in relation to the facts and Full Court adjudication in KN, that
many aspects of violent behaviour might be highly relevant in determining the relevance of violence
to the children’s welfare. However, he stated that, “The court’s ability to make this determination
will of course depend on the evidence available to it.”
In KN, Bryant CJ and Kay J emphasised23 that it was unclear precisely what the trial judge’s
findings as to the violent conduct by either the mother or her de facto partner and there was expert
evidence to the effect that the latter had exhibited no evidence of either impulsiveness or irritability.
Taken everything together, these judges commented24 that, “Whilst any outburst of temper that leads
to serious damage to property is regrettable, the description of two events in six years, namely
the breaking of the door and the breaking of car window ought not to have led the trial judge to
a conclusion that there was an unacceptable risk to the child in being placed in her mother’s care
by reasons of [her partner’s] inability to control his own temper.” Bryant CJ and Kay J also noted
that the trial judge’s view that his decision was based “in large measure” on a combination of the
partner’s violence, the allegations of sexual abuse and the risk of the mother’s committing suicide,
and stated that they found it hard to separate these issues.25
By the way of conclusion, Bryant CJ and Kay J, first began by commenting26 that, “Whilst
there may be circumstances in which the cumulative effect of a series of potential risks might be
said to amount to an appropriate basis for choosing one claimant for residence over another, our
analysis of the matters in this case that were said to constitute such circumstances lead us firmly
to the conclusion that the result reached by the trial judge is unsafe and the judgment cannot stand.
That is particularly so given his Honour’s comment that taken alone, he would not have found an
unacceptable risk of sexual abuse, a conclusion with which we agree.”
22 In Chisholm J’s Ipsissima verba, “It might be, for example, a single outburst, out of character, caused by a stressful
situation, for which the person feels immediately regretful and apologetic. It might be the result of mental instability
or disease. It might stem from a person’s inability to control his or her temper. It might represent a deliberate pattern
of conduct through which the violent person exercises a position of dominance and power over the other. It might be
associated with a particular situation and be unlikely to be repeated in different situations, or it might be a recurrent
pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify
it and be willing to take appropriate measures to prevent it happening again.” For comment in slightly different
context, see B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2007) at 193 ff.
23 [2006] FLC 93 – 284 at 80, 869.
24 Ibid at 80, 870.
25 As regards the last issue – the risk of the mother’s possible suicide – Bryant CJ and Kay J noted, ibid, that the
trial judge had expressed the concern that, if the mother did kill herself, while the child was with her, then the
consequences for the child could be quite severe. However, Bryant CJ and Kay J also referred, ibid, to the expert
view that it there would be a greater risk of the mother falling into a potentially suicidal depression were she not to
have the care of the child.
26 [2006] FLC 93 – 284 at 80, 870.
5
On that issue, whilst stating that the judge’s task on a rehearing (and it seemed to be implicit
in the comments made by Bryant CJ and Kay J that the rehearing should be conducted by the original
trial judge) would involve a comparative evaluation of the competing households, bearing in mind
that one contained the child’s primary career, about whom it was conceded that she was a loving
and caring caregiver. Importantly, they stated that the, “. . . issues surrounding the sexual abuse
allegations were unlikely to be revisited.”
Although Finn J agreed in the ultimate decision, she approached the matter rather differently
from the other judges. However, on the matter of the allegations of sexual abuse, she noted27 that,
whether or not the trial judge had made a finding that there was an unacceptable risk of sexual abuse,
it was clear that he had aggregated his concerns about violence between the mother and her partner
and the risks regarding her possible suicide and so reached a conclusion. Just as Bryant CJ and Kay J
were not clear as to the trial judge’s conclusions regarding the violence involving the wife and the de
facto partner, neither was Finn J28 regarding the trial judge’s conclusions regarding the risk of sexual
abuse.
As regards the suggestion that the risk of sexual abuse when coupled with the risk of the
child’s being exposed to violence in the mother’s household together amounting to an “unacceptable
risk” even if they did not separately amount to such, Finn J interpreted M v M29 as meaning30 that a
finding of unacceptable risk had to be made according to the civil standard. “Thus”, she said, “if a
court is confronted with allegations of abuse, it must at least satisfy itself that the allegations support
a finding of unacceptable risk according to the civil standard, if a decision is to be made wholly or
in part on the basis of those allegations. In other words, unless in this case, his Honour was able
to satisfy himself that the allegations of abuse supported a finding (according to the ordinary civil
standard) of unacceptable risk, he could not rely on the allegations to support his decision.”
Unfortunately, that dictum does not seem to be supported by an examination of the test
enunciated by High Court in M which did not make direct reference to the civil standard of proof
and its failure to tie that test to any specific evidentiary issues has been a major subject of critical
comment, both of the initial case and those derived from it.31 Finn J’s later modification might very
well have obviated some, at least, of that criticism. In the end, the risk involved, regardless of to
whom, in the meantime, it might prove unacceptable, must be assessed as such by the courts, who
would seek to rely on traditional legal and standards, which were not spelled out in M itself.
As regards the other issues raised by the case, Finn J agreed32 with Bryant CJ and Kay J
regarding the incidents of violence involving the mother and her de facto partner.33 She also agreed
27 Ibid at 80, 871.
28 Ibid at 80, 874.
29 Above n 1.
30 [2006] FLC 93 – 284 at 80, 875.
31 Above n 3.
32 [2006] FLC 93 – 284 at 80, 875.
33 Although, ibid, Finn J did note that she agreed with a submission made by the child representative that the trial
6
that there was no evidence to support a conclusion on the part of the trial judge that the mother
had not recognised the consequences of a young child’s being exposed to violent acts. Finally, she
remarked34 that the trial judge had regarded the risk of the mother’s suicide as being one only of a
number of risks, rather than as being, of itself, an unacceptable risk.
The totality of KN suggests strongly that the risk of child sexual abuse can be obfuscated
if there are risks of other kinds, whether apparently related or not. One might think that the primal
decisions regarding parenting might be more easily made if there were an accumulation of risks
available, especially were they mostly to point in the same direction. However, from KN, that does
appear to be so – the more so as the qualification acceptable seems to have been used as an abstractive
device. The apparent difficulty caused by the selective application of the test of acceptability, at
the very least casts further doubt as to the utility of its application in situations, which are not too
difficult to foresee, of which KN must surely be one.
The issues arose in rather different form in a later decision of the Full Court of the Family
Court of Australia in Johnson and Page,35 which involved an appeal by the mother against a number
of parenting orders. At first instance, the mother had sought that the father spend no time with the
child on the basis that unsupervised time with the child exposed the child to an unacceptable risk
of sexual abuse. The trial judge found no such unacceptable risk and made orders relating to the
time the child was to spend with the husband but issued an injunction restraining the mother from
permitting her new husband from carrying out particular activities, such as bathing, showering or
assisting with toileting and dressing the female child, who was aged six at the time of the hearing.
The mother argued on appeal that, first, the trial judge had not applied correct legal principles
in the determination of whether there was an unacceptable risk; second, that the judge had failed to
give adequate reasons for his determination that the child would not be exposed to an unacceptable
risk in the father’s care; third, that the trial judge had granted the injunction against the mother which
restrained her husband’s conduct without proper foundation. On the other hand, both the father and
the independent children’s lawyer submitted that not error had been made at first instance and that,
when read in toto, the trial judge’s reasons were adequate.
The Full Court36 allowed the appeal in part. First, and this is of direct relevance to Finn J’s
judgment in KN,37 the court considered both the standard and the burden of proof required to support
a finding of unacceptable risk. In that respect the court noted 140 of the Commonwealth Evidence
Act 1995. That section provides,38 first, that, “In a civil proceeding, the court must find the case of
judge had, “. . . failed to have regard to the evidence of the mother and DP that the incidents of violence between
them had occurred when the mother was suffering from mental illness and it had been necessary for DP to restrain
her or defend himself.”
34 Ibid at 80, 876.
35 (2007) FLC 93 – 344.
36 May, Boland and Stevenson JJ.
37 Above text at n 28.
38 Evidence Act 1995 (Cth) s 140(1).
7
a party proved if it is satisfied that the case has been proved on the balance of probabilities.” The
provision then goes on to state39 that, “Without limiting the matters that the court may take into
account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of
action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of
the matters alleged.”
At that point, the Full Court regarded it as useful40 to refer to the decision of the High Court
of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,41 which involved an allegation
of fraud. There, Mason CJ, Brennan, Deane and Gaudron JJ had commented,42 inter alia, that “The
ordinary standard of proof required of a party who bears the onus in civil litigation in this country is
proof on the balance of probabilities. That remains so even where the matter to be proved involves
criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a
fact or facts on the balance of probabilities may vary according to the nature of what it is sought to
prove.” Nonetheless, the High Court continued43 by stating that, “There are, however, circumstances
in which generalisations about the need for clear and cogent evidence to prove matters of fraud or
crime are, even when understood not directed to the standard of proof, likely to be unhelpful and
even misleading.”
Such statements, the court had said, should rather be understood as reflecting a conventional
perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and
a judicial approach that courts should not lightly make a finding that, on the balance of probabilities,
a party to civil litigation has been guilty of such conduct. If that is true in relation to allegations of
fraud or crime in civil proceedings at large, then it should be still more true that parties to parenting
disputes do not indulge in the sexual abuse of children who are the subject of disputes. Hence, it
should be apparent that findings ought not to be lightly made. However, recent Australian cases
concerned with the subject seem to show an approach which is, at the very least, less than certain.
It will also have been apparent that the Neat Holdings case was decided prior to the 1995
legislation. However in Johnson and Page, the court noted,44 first, that it had been applied in cases
subsequent to the Act and had also been applied by the trial judge.
As regards that matter, the Full Court emphasised45 that the trial judge had not been required
to determine whether the child had been abused by her father to the standard required by s 140 of
the Evidence Act. All that he had been required to determine was whether, having regard to all the
circumstances, which included prior allegations of sexual abuse, there was an unacceptable risk to
the child of sexual abuse occurring in the future were she to spend unsupervised time with the father.
39 Ibid at s 140(2).
40 [2007] FLC 93 – 344 at 81, 891.
41 (1992) 67 ALJR 170.
42 Ibid at 170.
43 Ibid at 171.
44 [2007] FLC 93 – 344 at 81, 891.
45 Ibid at 81, 892.
8
In reaching such a determination, the Full Court considered that it was relevant for the trial judge
to examine and evaluate all the factors, including past occurrences, which related to the issue of
unacceptable risk.
In the event, the Full Court were satisfied46 that the trial judge had examined all of the
relevant evidence in assessing the past and future unacceptable risk. In that context, submissions
had been made on behalf of the wife relating to an earlier decision of the Full Court of the Family
Court of Australia in Re W (Sex abuse: standard of proof),47 where the court, in allowing a father’s
appeal against a finding that abuse had occurred, had said that, “The Family court’s wide-ranging
discretion to decide to try the case as if it were not more than a contest between the parents to be
decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the
balance of probabilities.”48
At the same time, though, the court in Re W had especially noted49 the yet earlier decision
in WK v SR,50 where the Full Court51 had emphasised that it was the duty of courts in such cases
to apply the rigorous standard to be found in Briginshaw v Briginshaw52 and, latterly, s 140 of the
Evidence Act 1995 which is derived from it.53 In Re W, the court had commented54 that Nicholson
CJ, who had tried the case at first instance, had appeared not to pay any attention to that view.
“Unless”, the Full Court had said, “such a rigorous approach is taken, where the often-inevitable
result of a positive finding is a cessation of the relationship between parent and child, there is a major
risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached
in error.” The consequences, as I have sought to address elsewhere,55 are by no means limited to
children and parents and others may suffer the most serious consequences of erroneous findings.56
46 Ibid at 81, 892.
47 [2004] FLC 93 – 192. For contextual comment, see F Bates, “Child Sexual Abuse and Standard of Proof” (2005)
13 Tort LR 51.
48 Ibid at 79, 2114 per Kay, Holden and O’Ryan JJ.
49 Ibid at 79, 2117.
50 [1997] FLC 92 – 784 at 84, 691.
51 Baker, Kay and Morgan JJ.
52 (1938) 60 CLR 336, particularly at 362, where Dixon J had said that, “The seriousness of an allegation made,
the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from
a particular finding are considerations which must affect the answer to the question whether the issue had been
proved to the reasonable satisfaction of tribunal. In such matters ‘reasonable satisfaction’ should not be produced
by inexact proofs, indefinite testimony, or inexact inferences.”
53 See J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform
Evidence Acts 2002 at 527.
54 [2004] FLC 93 – 192 at 79, 217.
55 F Bates, “Child Sexual Abuse, the Fact-Finding Process and Negligence: An Opportunity Lost?” (1998) 6 Tort LR
125.
56 See also, F Bates, “Policy, Bureaucracy, Tort Law and Child Sexual Abuse: Stirring the Miasma” (2001) 9 Tort Law
Review 183.
9
In Johnson and Page, the court noted57 that, as regards Re W, the issue was whether the trial
judge had applied a correct standard in determining whether the father had actually abused the child.
Hence, the Full Court did not need to address the standard to be applied to a finding of unacceptable
risk. With respect, this distinction is overall not easy to maintain, given the general observations
regarding the nature of the processes involved both in Re W itself and the cases to which reference
was made therein.
Similarly, in Johnson and Page, the court refused to accept a submission by the mother
that there was an unacceptable risk because she had been required to satisfy an onus of proof which
was an “excessively high test”. The court emphasised that the standard of proof was not in doubt
it was the civil standard as represented by s 140 of the Evidence Act 1995.58 “The evidence”, the
court went on,59 “necessary to satisfy a finding of actual sexual abuse as distinct from unacceptable
risk is accommodated by s 140(2)(c).” The mother, in the case at hand, as was admitted by her own
counsel, had not sought to have the trial judge make findings to the effect that the child had suffered
actual sexual abuse at the hands of her father. Thus, the trial judge had not incorrectly elevated the
standard of proof which was required to support a finding of unacceptable risk.
Intermingled, with the mother’s assertion that the trial judge was in error in requiring an
onus of proof to the Briginshaw, or s 140, standard, was a further submission that the judge had
failed to give adequate reasons for his finding that there was no unacceptable risk if the father were
to spend unsupervised time with the child or, alternatively, to discuss how the risk to the child which
he found to exist could be minimised.
In Bennett and Bennett,60 the Full Court of the Family Court61 had stated62 that the adequacy
of the reasons would depend upon the circumstances of the case, although the reasons would, in the
court’s opinion be inadequate if they, first, did not enable an appellate court to ascertain the reasoning
on which the decision. Second, if justice is not seen to be done. The court also noted that those two
criteria would frequently overlap. Thus, “If the primary Judge does not sufficiently disclose his or
her reasoning, the appeal court will be denied the opportunity to detect error and the losing party is
denied knowledge of why his or her case was rejected.”
In Johnson and Page, the appellate court went on63 to outline evidence from an expert, who
had been appointed for the purpose of preparing a report, which had been discussed in detail by the
judge at first instance. The judge, in substantially accepting the report, had concluded that, although
there was a risk, that risk was not unacceptable. The Full Court, after an analysis of the trial judge’s
57 [2007] FLC 93 – 344 at 81, 892.
59 [2007] FLC 93 – 344 at 81, 892.
60 [1991] FLC 92 – 191.
61 Following the decision of the Full Court of the Supreme Court of Victoria’s decision in Sun Alliance Insurance v
Masson [1989] VR 8 at 18 per Gray J.
62 [1991] FLC 92 – 191 at 78, 266 per Nicholson CJ, Simpson and Finn JJ.
63 [2007] FLC 93 – 344 at 81, 895.
10
evaluation of the evidence concluded64 that the mother’s submission that the trial judge had failed to
weigh the evidence of unacceptable risk could not be sustained. Hence, the Full Court were satisfied,
from the trial judge’s findings, that the trial judge’s ultimate determination that the child would not
be exposed to an unacceptable risk spending unsupervised time with her father was to him on his
assessment of the evidence.
However, the Court then turned their attention65 to the injunction issued by the trial judge in
respect of the mother’s new husband and his activities with regard to the child During the course of
the trial at first instance, counsel for the mother had urged the trial judge not to grant the injunction on
the grounds that it would pose some very difficult constraints on the mother’s family life.66 Similar
submissions were also made by the independent children’s lawyer. On the other hand, in granting
the injunctions, the trial judge, the Full Court noted67 evidence given by the mother68 to the effect
that her husband viewed, admittedly, adult pornography on his computer and had sent pictures of
himself naked to a woman in Singapore as well as wanting the mother to engage in “heightened
sexual activity.”69 However, it also appeared that he had sought appropriate medical treatment for
his apparent emotional problems. Nevertheless, the Full Court did not accept70 a submission made
on behalf of the father that the mother supported the grant of the injunction and, indeed, her counsel
during the first instance hearing had noted that evidence against both the father and the husband was
of a similar type and nature.
Counsel for the father submitted that the grant of the injunction was within the reasonable
exercise of the trial judge’s discretion and had the beneficial effect of relieving the father’s anxieties.
However, in granting the injunction, the trial judge had, the Full Court noted,71 made no findings
adverse to the husband in connection with any of the allegations made by the child. In addition, the
trial judge had noted that the grant of the injunction was not to be seen as representing any criticism
of the husband. With respect, it is hard to imagine how any such criticism would not be implied,
either by the husband himself or by a detached observer; the more so as the mother’s assiduity in
seeking the injunction’s discharge also suggests otherwise.
However, the Full Court went on to point out the instantly deleterious effects which the
injunction might have. It had the effect, they pointed out,72 “. . . of imposing upon the mother, who
the trial judge accepted demonstrated appropriate parenting capacity, restrictions which preclude
64 Ibid at 81, 896.
65 Ibid at 81, 897.
66 Also that it would place the mother in “jeopardy of contravention.” It was also submitted that the trial judge should
take into account that the mother had acted responsibly and that she would do so in the future.
67 [2007] FLC 93 – 344 at 81, 899.
68 Author’s emphasis.
69 The husband had also himself given evidence that the child had behaved in a sexualised manner when bathing with
him.
70 [2007] FLC 93 – 344 at 81, 899.
71 Ibid at 81, 899.
72 Ibid at 81, 899.
11
assistance in what may be regarded as normal aspects of care by a step-parent of a relatively young
child such as assisting a child with dressing, bathing, showering or fostering.” Given that there
had been no adverse findings in respect of the step-father, the Full Court were not satisfied that the
balance of convenience properly assessed, and having regard to the child’s best interests, favoured
the injunction’s being granted. In addition, it had been put to the Court that part of the trial judge’s
reasoning had involved protecting the husband from any further insinuations and allegations.
However, neither he nor the mother had sought any order which might provide such protection. As
regards the injunction itself, although it was directed to the mother, effectively restrained a non-party
to the proceedings and, as such, was unusual.
As regards the element of judicial discretion which is present in the grant of injunctions
relating to children,73 the Full Court took the view74 that the trial judge’s discretion had miscarried
in that he had failed to give appropriate weight to the mother’s parenting capacity, that he had no
criticism to make of the step-father and the benefits to the child of having assistance in her daily
activities. The trial judge had been too orientated towards the father’s anxieties.
Taking all of those matters into account, the Full Court were satisfied that the application for
an injunction made by the father and the independent lawyer could not succeed.
Johnson and Page is not, in many ways, an easy case to evaluate. In relation to neither
allegation was there found to be any real substance, and it was clear that, given the level of evidence
available in relation to either, matters relating to standard of proof were of distinctly secondary
importance. In order to find either allegation supportable, a very much lower standard would have
had to be applied than that which the trial judge articulated. In the end, one is inevitably faced with
the notion of acceptability which is an inherent part of the initial test, for, quite obviously, there might
be some individuals (including, perhaps, some judges) to whom any risk of child sexual abuse would
be unacceptable. What Johnson and Page seem to have attempted is to draw a distinction between
proof of abuse itself and proof of a risk. This distinction is, it is submitted, innately a little confusing
as the two matters are conceptually different. Proof of actuality, as distinct from potentiality, is quite
different.
One other issue which arose from Johnson and Page was the risk as distributed between
natural father and step-father. It is only one step from that kind of situation to a dispute regarding the
identity of the alleged perpetrator. Such proved to be the case in Potter and Potter75 which involved
an appeal by the father against orders for supervised contact between himself and his six years old
daughter.
Following her parents’ separation, the child lived with her mother and, as agreed between
the parties, spent time with her father approximately once every weekend and overnight on a few
occasions. The mother and child had sporadically resided with the maternal grandparents and the
73 Family Law Act 1975 s 68B, as amended.
74 [2007] FLC 93 – 344 at 81, 900.
75 [2007] FLC 93 – 326.
12
child had met her paternal grandparents on a few occasions. The child referred to her father, and
both maternal and paternal grandfathers as “daddy”. When the child was aged three years, she told
her mother that “daddy” had touched her inappropriately.76
At trial, and after having listened to expert evidence from an experienced psychiatrist, the
trial judge found the child to have been sexually abused but could not make a finding as to the
perpetrator. In so doing, the judge noted the test in Briginshaw and s 140 of the Evidence Act
1995 and concluded that the child would be exposed to an unacceptable risk of harm if she spent
unsupervised time with her father.
On appeal, the father argued that, first, the trial judge had wrongly made a positive finding
of abuse and, second, that the judge had made findings of unacceptable risk which were against the
weight of the evidence. The Full Court of the Family Court of Australia77 allowed the appeal.
As regards the first ground, the Full Court commented78 that the trial judge’s finding depended
upon the evidence given by the psychiatric expert and on the child’s remarks to her mother. Hence,
there then followed a detailed, descriptive analysis of that relevant evidence. Ultimately, the court
referred79 to the statement of the Full Court in Re W,80 earlier discussed.81 Having taken those
comments into account, the court agreed with the appellant’s Counsel that, “. . . on careful analysis
of the evidence it is not possible to say that [the psychiatrist] opined that it was more likely than not
that the child had been sexually abused.” Accordingly, the court in Potter went on to emphasise that
a finding that abuse had occurred could only be reached by a strict application of Briginshaw and
s 140.82 Nonetheless, because particular concessions had been made83 in relation to the trial judge
relating to the making of a positive finding that abuse had occurred.
However, it was apparent that the suggestion, in dealing with these matters, the trial judge
had concluded that a positive finding of abuse was required, was erroneous. Had the trial judge made
such a finding, that would have been open to her because of the concessions which had been made
by the father.
It was then argued by the father that it was impossible to identify him as the abuser. He
claimed that the trial judge had concluded that unsupervised contact between the child and the father
would lead to an unacceptable risk of abuse and that, logically, the conclusion did not follow. In that
76 The child was also observed, both and home and at her day care centre, engaging in masturbatory behaviour.
77 Bryant CJ, Coleman and May JJ.
78 [2007] FLC 93 – 326 at 81, 627.
79 Ibid at 81, 631.
80 [2004] FLC 93 – 192 at 79, 217.
81 Above text at n 45 ff.
82 See also WK v SR [1997] FLC 92 – 787, Above text at n 48 ff.
83 [2007] FLC 93 – 326 at 81, 631.
13
context, the court referred84 to Re W,85 where the Full Court had said that, “. . . if a trial judge finds
it appropriate to make a positive finding that abuse has occurred, that finding needs to particularise,
as far as possible, just what that abuse consisted of. Unless such findings are made it is impossible
for the alleged perpetrator to challenge the findings or for an appellate court to properly review the
findings to see if the findings are safe. The failure of the trial judge to provide such particulars makes
his generalised finding that ‘abuse’ has occurred all the more unnecessary and inappropriate. . .”.
The court in Potter were of the view that those comments were apposite to that case and, especially
given the concessions, it was particularly necessary to consider the matter.
Thus, the mother argued that, as a matter of logic, the generalised finding of abuse, without
the capacity to make a finding as to which the persons the child called “Daddy” was the perpetrator,
the trial judge had made a positive finding which, on the proper evidentiary test, could not result
in a conclusion that the father had abused the child. The Full Court agreed with that proposition,
which was consistent with her other argument in that the mother did not seek a finding that the father
had abused the child, but merely that he posed an unacceptable risk were he to have unsupervised
contact. Contrarily, the father was submitting that the trial judge did not apply the appropriate
standard of proof in concluding that there was an unacceptable risk of abuse by him. In other words,
that her finding was against the weight of the evidence.
As the court then noted86 the trial judge’s finding that it was not possible to conclude that the
father was, indeed, the abuser and, during the hearing, the child’s maternal grandfather emerged as
being a possible culprit. However, the case which the trial judge was required to decide was directed
towards the father and whether he posed an unacceptable risk to the child. Whatever other devices
were to be put in place to protect the child, the trial judge was required to assess, on the evidence,
whether there was an unacceptable risk if the father had unsupervised contact.
Nevertheless, the trial judge found that there were two possible abusers – the father
and maternal grandfather – but before she could make a finding, to the appropriate standard, of
unacceptable risk of abuse by the father, she was required to assess the evidence and ascertain
whether it reached the standard required by Briginshaw and s 140.87 What made the trial judge’s
task mere difficult was the circumstantial evidence and the age of the child, which, the Full Court
considered, made it almost impossible for her to particularise the nature and extent of the abuse.
That, of course, was an issue which had earlier been raised in Re W.88
The Full Court, having raised that crucial issue, went on to say that there was, “. . . little
doubt that, in a case where there are no specific allegations, the opportunity to the accused parent
to meet or refute the allegations disappears. However, it must also be remembered that these cases
84 Ibid at 81, 634.
85 [2004] FLC 93 – 192 at 79, 226.
86 [2007] FLC 93 – 326 at 81, 634.
87 The test, the Court stated, ibid, was, “. . . whether on the balance of probabilities there would be an unacceptable
risk of abuse to [the child] by the father if consent was not supervised.”
88 See above n 45.
14
generally are about young children and where there is abuse it occurs without witnesses. Specific
allegations are difficult to obtain”.
In Potter, there was only one matter, prior to the parents’ separation, which might have
implicated the father. However, it appeared that the father had been extensively cross-examined on
that matter and had produced an explanation that was apparently both innocent and plausible. He
had likewise denied having inappropriately touched the child on occasion. The Full Court noted89
that the trial judge had not rejected his evidence or made adverse findings about his credit and,
indeed, had made favourable findings about him, noting, especially, that the child had enjoyed a
close relationship with him.90
The first instance hearing, as it progressed, the Full Court continued, was not a case where
the judge had to consider whether to make a positive finding against the father or, indeed, whether
the evidence, though it was insufficient to support a positive finding, could lead to the conclusion that
unsupervised contact might pose an unacceptable risk. The Full Court, hence, were of the view91
that the trial judge, on that evidence, was not entitled to find that an unacceptable risk existed. The
way in which she had approached the matter meant either that the father had perpetrated the abuse
or was entirely innocent of it. “The latter”, the court stated, “could not logically lead to a finding of
unacceptable risk and her Honour did not find the former”.
There was, then, of course, the matter of the possibility of there being two likely perpetrators.
“If”, the court stated, “an analysis of the evidence suggested the father was the more likely of the
two, then a finding of unacceptable risk could be made, but [the trial judge] did not analyse the
evidence in this way, nor make such a finding. Indeed the evidence as we have set it out, does not
lead to such a conclusion”.
In that context, the court referred to the earlier decision of the Full Court in Napier and
Hepburn92 where copious reference was made to the dissenting judgment of Fogarty J in N v S,93
but where Warnick J had separately commented94 that detailed95 discussion of the issues which might
lead to a conclusion of unacceptable risk to a child could, however imperfect the processes which
lead to it, “. . . come down between parent and child like an iron gate that no subsequent efforts
can raise. At least a close examination of the steps leading to a finding of ‘unacceptable risk’ can
illuminate paths by which a family (or a court making decisions for a family) might subsequently
explore options for change”.
89 [2007] FLC 93 – 326 at 81, 635.
90 The Full Court, ibid, noted her comment that there was no reason why the father would not physically care for the
chid whilst on contact.
91 [2007] FLC 93 – 326 at 81, 636.
92 [2006] FLC 93 – 303.
93 [1996] FLC 92 – 655. Above text at n 11 ff.
94 [2006] FLC 93 – 303 at 81, 126.
95 “Fulsome” in Warnick J’s ipsissimma verba.
15
In Potter, the court noted particularly96 expert evidence which had failed to identify any particular
behaviour which had connected the father with abuse, had looked certainly that any abuse, other
than some kind of sexualisation had occurred at all, that the child’s relationship with her father was
positive and, last, the father’s denials.
The court found97 that the trial judge had not properly evaluated that evidence in making
a finding on the balance of probabilities that the father posed an unacceptable risk of sexual abuse
in the event that she had unsupervised contact with him. Further, the court acknowledged that
the judge at first instance had been encouraged to make a positive finding98 of abuse, especially
by concessions made by various counsel.99 Yet, on a detailed examination of what the evidence
amounted to, the case, the Full Court considered, was not one where a positive finding of abuse, and
in what circumstances and, were there more than one possible perpetrator, to identify him.
More particularly, the court continued by saying that, despite the concessions, it was never
clear what the nature of the abuse found by the trial judge actually was. In the court’s own words,100
“Such uncertainty and inexactness would necessarily be reflected in a consideration of whether the
father did pose an unacceptable risk to the child. Her honour did not carry out such an analysis.
That analysis would have include consideration of whether, despite the findings that something had
occurred to the child either by the father or maternal grandfather, nevertheless the risk of harm to the
child in having contact with the father outweighed the possible benefits to her in having that contact”.
That issue had previously been alluded to in the earlier decision of B and B101 where the Full Court102
had stated103 that, “. . . where the court makes a finding of unacceptable risk it is a finding that the
risk of harm to the children outweighs the possible benefits to them from the access”. In Potter, the
Full Court strongly took the view that the trial judge had not applied that test and, in failing to do so,
had fallen into error. Accordingly, the father’s appeal would succeed.
As regards the consequences of that decision, the Full Court took the view104 that, because
the appellant had sought orders for unsupervised contact and because of the nature of the errors
which the Full Court had earlier indentified, the mother ought to be reheard. Particularly, the court
considered that, without the various concessions, it might well have been that a positive finding
ought not to have been made. “There is, in any event”, the court continued, “likely to be further
evidence, perhaps contentions, about the child’s demeanour and behaviour in the period since the
orders were made, which may throw light on the original findings either in relation to whether a
positive finding would be made or the question whether the father poses an unacceptable risk to the
96 [2007] FLC 93 – 326 at 81, 637.
97 Ibid at 81, 638.
99 Above next at n 81.
100 [2007] FLC 93 – 326 at 81, 638.
101 [1993] FLC 92 – 357.
102 Fogarty, Baker and Purvis JJ.
103 [1993] FLC 92 – 357 at 79, 778.
104 Ibid at 81, 638.
16
child if unsupervised contact was ordered”.
The problems of uncertainty of process and imprecision of terminology and failure to clarify
aims which are apparent from this discussion of the Potter decision when added to the problems
raised in KN105 and Johnson and Page106 as they refer to unacceptability as a test. Without going
much further, the totality of the curial approach towards the threshold test cannot generate confidence
in the M formula at all.
However, it is, by reason of the decision of the Full Court of the Family Court of Australia
in Lindsay v Baker,107 necessary to investigate the issue further. Lindsay v Baker involved an
appeal by the mother and a cross-appeal by the father against parenting orders that the child spend
unsupervised time with the father on an increasing basis until the position was reached that he was
spending equal time with each parent as well as an order that the child should live with the mother.
On the one hand, the mother argued that there was a risk of sexual harm to the child in
spending unrestricted time with the father. The mother submitted that the trial judge had made errors
of fact, was in error in making generalisations and in his approach to the allegations of sexual abuse.
She also applied to adduce further evidence.
The father sought that the child live with him and spend time with him, though he did so on
the basis of events which had taken place since the judgement at first instance, in particular that the
mother had failed to comply with the orders made at first instance. The father did not seek to adduce
further evidence in support of his cross-appeal.
The Full Court, Bryant CJ, Finn and May JJ, were unanimous in dismissing both the appeal
and cross-appeal. However, all three judges delivered separate judgments, even though Bryant CJ
did comment108 that she agreed with both Finn and May JJ and only sought to add some peripheral
comments. Although these were, indeed, brief: they did have a bearing on some of the issues which
arose in the cases earlier discussed, and reference was made109 to the comments of Fogarty J in N and
S110 which, despite its dissentient nature, seems to have become something of a connecting thread in
these cases. Hence, the Chief Justice in Lindsay v Baker had said that in each case, “. . . the facts
will need to be carefully assessed, not only as to whether they enable the court to make a finding that
sexual abuse has occurred (or not occurred) but also, if the court cannot make such a finding as to
whether the facts established that there is an unacceptable risk to the child if the contact being sought
or contemplated by the court were to occur”.
Of course, central to that explication by Bryant CJ is the conceptual notion of risk itself, quite apart
107 [2007] FLC 93 – 347.
108 Ibid at 81, 948.
109 Ibid at 81, 949.
110 [1996] FLC 92 – 655 at 82, 714.
17
from any special application to the topic under consideration. Indeed, as Bryant CJ noted111 in
Lindsay and Baker, the High Court of Australia in M v M112 itself had stated, first, that, “The relevant
exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the
risk of any relevant harm to the child in the future”. As the present writer has elsewhere suggested,113
prediction in this context, on either ran individual or an institutional basis is a difficult process, either
because we do not know the actual facts on which to make that prediction or how those facts may alter
over what might, itself, be an uncertain time period. The High Court then went on to say that risks
consist, “. . . of chances and consequences. The more serious the consequences the high the risk even
if the odds of the happening of the relevant event are comparatively low”. At the same time, though,
they stated that it might be perfectly, “. . . reasonable to take a risk on something in circumstances
where, even though it is likely to occur, the consequences are comparatively insignificant and the
potential benefits are worth it.”
One can only suggest these comments about risk, as such, are unlikely to detract from
the general suspicion in which the unacceptable risk test has frequently been regarded. The
consequences to a child of failing to recognise instances of child abuse and of failing properly to
identify the perpetrator are only too readily apparent, but a wrongful finding of abuse may itself
have consequences, both for the child114 and the person against whom it is alleged115 are also readily
apparent. The legal process ought surely not to take on the appurtenances of the gambling table.
This very issue has been taken up by Steele, who writes116 that, “To one extent or another,
all risk assessments involve the calculation, not just of odds, but of the value of those odds. At its
simplest, this means combining the likelihood or probability of an adverse outcome, with the ‘cost’
of that outcome. . . . [Though] if the possible losses are not purely financial, it is much harder to
attach the right ‘value’ in any calculable form at all. This has clear implications for the use of
quantitative or numerical risk assessment in respect of many matters including health and safety .
. .”. It might, hence, very well have been more desirable had the High Court in M totally refrained
from seeking to apply the risk concept in this area of possible legal intervention. Thus far, much of
the literature has sought to deal with acceptability117 rather than risk itself.
Yet, having raised the High Court’s own, and potentially further damaging, notions of risk,
Bryant CJ had stated118 that her comments were appendages to those of Finn and May JJ. How did
those judges approach the issues raised in Lindsay and Baker? Finn J concluded119 her judgment by
111 [2007] FLC 93 – 347 at 81, 849.
112 (1988) 166 CLR 69 at 77.
113 See F Bates, An Introduction to Family Law (1987) at 211 ff. See also, particularly, A S Watson, “The Children of
Armageddon: Problems of Custody Following Divorce” (1969) 21 Syrcuse LR 55.
114 See above text at n 92.
115 See above at text n 54.
116 J Steele, Risks and Legal Theory (2004) at 24.
117 See above text at n 3 ff.
118 [2007] FLC 93 – 347 at 81, 948.
119 Ibid at 81, 954.
18
saying that she did not consider it appropriate, given the limited nature of the matters which had
been raised before the Full Court, to undertake any critical examination of the trial judge’s approach
to the issues of sexual abuse and unacceptable risk. At the same time, though, she stated that she
had some difficulty, “. . . in understanding in this case anything needed to be said beyond the broad
general guidance given by the High Court nearly twenty years ago now in M and M”. In view of
some of the issues raised in the other cases, one might very think that such a view could legitimately
be regarded as facile.
Indeed, there would seem to be equally little doubt that the trial judge had raised some
germane issues, even though they might not have been regarded as necessarily in the mainstream of
matters arising from allegations of sexual abuse. Thus, for instance, the mother had objected120 to
a statement by the trial judge to the effect that it was, “. . . increasingly rare these days for contact
between a parent and his or her child to be terminated or restricted by court order”. The reasons
for that view, the trial judge had said, were to be found in the Family Law Act 1975 as amended
in 2006.121 The mother’s objection was that the trial judge was in error in seeking to make such a
“generalisation” and that each case should be judged on its own merits. Further, that the articulation
of such a generalisation suggested that the trial judge had pre-judged the instant case.
In response, Finn J took the view122 that, when regard was had to the whole of the trial judge’s
reasons, as well as to the conduct of the case, it could not properly be said that the trial judge had prejudged the issue of contact. At the same time, Finn J was at pains to point out that the response to the
generalisation demonstrated “. . .how careful a judge should be when endeavouring to explain in his
or her reasons for judgment, the legislation which governs the case in question. . . . [T]he legislation
should as a general rule be permitted to speak for itself. . . . It is, however, important to avoid putting
any gloss on the legislation. . .”.123
More specifically, the trial judge had made note of investigations by a State Department of
Police and Child Safety into sexual abuse allegations concerning the child, and had referred to the
dissenting judgment by Kay J in K & B.124 There, that distinguished judge had said that, “In cases
of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by
the court, and of the proper operation of the legal system will be overlooked in the court’s anxiety
to ensure that the risks of sexual interference are minimised”. Kay J then went on125 to say that the
law does not require that before a person is entrusted with the care of a child that person positively
120 Ibid at 81, 952 per Finn J.
121 Notably, the objects of Part VII as found in ss 60B(1)(a), (b) and primary consideration (a) in s 60CC(2). Because
of these provisions, it was – and should be – difficult, the trial judge considered, to make a case that a child spend
no or limited time at all with a parent.
122 [2007] FLC 93 – 347 at 81, 952.
123 See the comments of the High Court in De L v Director-General, NSW Department of Community Services
(1996) FLC 92 – 706 at 83453. for comment on this case, see F Bates, “Undermining the Hague Child Abduction
Convention: The Australian Way?” (2001) 9(1) Asia Pacific LR 45.
124 (1994) FLC 92 – 478 at 80, 972.
125 Ibid at 80, 973.
19
prove126 that all possible steps are taken to minimize any risk to the child. In the context of Lindsay
and Baker, Finn J noted127 that the trial judge had said that, “Branding a father with the stigma of
incestuous homosexual pedophilia is an extreme step and a conscious effort must be made not to be
too uncritical or overly protective before taking it”.
That last seems a sensible comment as, innately, such a phenomenon should be rare and
that view had been reinforced by the trial judge who had also said that, “In a civil case, including
family proceedings, the starting point is the assumption that fathers do not normally sexually abuse
their children”. That last, as Finn J pointed out,128 had been the subject of particular objection by the
mother. However, at the same time, because the mother was not legally represented the mother was
unable to develop her challenge to the trial judge’s comments in any substantial way.129
It followed, in Finn J’s opinion, that it would be inappropriate to undertake any further
critical analysis of those comments made at first instance. This view was despite the fact, in Finn
J’s opinion, that his comments about branding the father as an “incestuous, homosexual pedophile”
were not easy to understand. Further, the following comment was, “. . . not, to say the least, a wellrecognised starting point (although the assumption therein referred to by his Honour is hopefully
valid) . . .”.
However, no doubt relying, to some, albeit uncertain, degree, on the assertions which the
mother had called into question, the trial judge had concluded that, “. . . no positive finding of past
abuse can legitimately be made in this case because of the unsatisfactory and insufficient nature of
the evidence adduced to support it”.
The trial judge had also added, as mentioned by Finn J,130 that that, technically at least, was
the end of the court’s inquiry. The exoneration of the accused party was not a part of the court’s
adjudicative function. However, that was frequently seen by aggrieved and indignant fathers as
highly unsatisfactory. In relation to Lindsay and Baker, the trial judge, while emphasizing that there
was rarely enough evidence to sustain a valid negative finding, very much doubted that the father had
done anything untoward. Finn J, thus, agreed131 with Bryant CJ and May J that the mother’s appeal
should be dismissed.
There remained the judgment of May J who concluded132 that the trial judge had not made any
appealable error. This, though, did not mean that factual errors were not made but, as regards such
errors, in May J’s view, there were parts of the judgment at first instance which were in conflict –
126 Author’s emphasis.
127 [2007] FLC 93 – 347 at 81, 953.
128 Ibid at 81, 953.
129 Rather, according to Finn J, ibid, she had concentrated on the father’s prior history of drug use and other criminal
activity.
130 Ibid at 81, 953.
131 Ibid at 81, 954.
132 Ibid at 81, 971.
20
even though the trial judge had correctly recorded the evidence as to what, and to whom, the child
had said. Likewise, although the mother had argued that the trial judge had been influenced by the
expert opinions of person other than the family of the child, he was so entitled and there had been no
attack on those opinions or reports.
Furthermore, May J noted that the appellant was concerned by remarks made by the trial
judge concerning occasions when orders deny a parent from spending time with a child133 and the
caution to be applied in making findings which designated a parent as an “incestuous homosexual”.134
May J considered that those remarks were made in the context of the orders sought by the mother and
the way in which the case was conducted. In that respect, May J noted135 that it had been submitted
that, in so finding, the judge had failed to consider the need to protect the child from physical or
psychological harm whilst starting from the position that the fathers do not normally abuse their
children. Further, the mother argued that the judge had placed insufficient weight on the father’s
being a long term heroin user as well as other matters going to credit,136 which had been raised at
trial. However, May J was of the view137 that the trial judge, in respect of those matters, ought to
have made a finding as to credit against the father which would have influenced the orders which he
made as to the time the child was to spend with the father. This was the more so as various reports
suggested that the child had been observed to have a good relationship with the father, despite the
mother’s allegations.
Thus, May J decided that the mother’s appeal should be dismissed. It was clear, she said,138
from the judgment of the trial judge that the trial judge, despite some conflicts and factual errors,
had, “. . . correctly recorded the evidence in relation to what the child said and to whom he said these
things. . .”. In addition, the fact that the trial judge was influenced by expert opinion of persons
other than the child’s family, he was entitled to do so, the more so as there had been no attack on
those opinions or reports. More generally, May J was of the view that, whatever errors the trial
judge might have made in relation to the evidence, none had affected his judgment and, in any event,
she considered that the orders which he had made were given after a careful consideration of that
evidence and were plainly correct.
Lindsay and Baker may be a cause of concern to critics of the “unacceptable risk” criterion
as it seems to suggest that various glosses which might be added to the test, which is, of course, a
134 [2007] FLC 93 – 347 at 81, 972.
135 Ibid at 81, 969.
136 Thus, it was argued that the judge was in error in not placing weight on evidence before the court that the husband
had lied to the police, the court and the Family Report writers. In particular, the father had told the police that the
child had delayed communication skills, whereas in an earlier affidavit that the child had a good vocabulary. The
mother also drew attention to other evidence from the Family Report and a Child Care Centre. The mother also
expressed concern regarding the father’s heroin use. In an affidavit, he denied using heroin during the mother’s
pregnancy, but, in the same document, he said that he ad used it sporadically.
137 (2007) FLC 93 – 347 at 81, 969.
138 Ibid at 81, 971.
21
judicial gloss on the law and, indeed, it is as well that Bryant CJ did warn against such a process.139
However, the ultimate decision by the Full Court must be borne in mind and weighed against the
rather uncertain findings regarding the father’s rather uncertain conduct. Put another way, one must
ask oneself whether the father’s conduct is likely to increase the risk to the child, assuming that there
were any initially, to an unacceptable level. The court did not believe so, though the father’s cross
appeal was dismissed. The reason, essentially being, as May J put the matter,140 that the father had
not filed nay matter, by way of affidavit or otherwise, which might constitute an appropriate matter
for such an appeal. In the context of all of that, some readers might express a proper concern over
the High Court’s view of the nature of “risk” as noted by Bryant CJ in Lindsay and Baker.141 All in
all, from whatever angle one approaches Lindsay and Baker, difficulties and uncertainties appear.
Conclusions
The cases which have been considered in this paper do not cast much in the way of a
favorable light on the unacceptable risk tests enunciated by the High Court in M v M from the
semantic analysis of the words of the test, which are of necessary importance, as the confusion which
they generate is bound to have bearing on the tests practical applicability. So, indeed, do these cases
unfortunately demonstrate. At one level, the very length and complexity of the judgments employed
by experienced appellate judges emphasise the innate problems which the test, and the very words
unacceptable and risk per se involve. As regards risk, Steele concludes her book142 by commenting
that, “. . . the word ‘risk’ refers to a method which is certainly not in decline but, on the contrary,
increasingly ubiquitous. At the same time risk is often identified with a sense of continuing exposure
to hazard or to potential bad outcomes”. In addition, she goes on143 to say that, “. . . to be competent
in the methods of risk is, increasingly, to negotiate ambiguous and incomplete information and to
exercise choice in the face of these”. Steele takes most of her examples from the area of insurance,
but the difficulties are exacerbated by the nature of our topic, including the fact that the conduct
productive of the risk may take place over a long period of time and its consequences may extend for
still longer.
The matter, of course, is still further complicated by the adjectival qualification of
unacceptability. In the end, that issue is to be evaluated by the court of final adjudication rather than
any of the other entities who might be interested and who might want to decide on it.
In addition, the adjectival part of the test may, as has already been observed,144 be used by parties as
an obstructive or obfuscatory device. In turn, that process may be assisted by various evidentiary
processes,145 complicated further by being filtered through expert opinion. Albeit in a rather different
140 (2007) FLC 93 – 347 at 81, 971.
142 Above n 114 at 206.
143 Ibid at 207.
22
context,146 Steele has noted147 that, “. . . grave underestimates of hazards . . . can stem in particular
from over-optimism about the reliability of future expert systems in dealing with future untried
problems. This sort of over-optimism can become embedded within a professional context, and it has
been argued that there is every reason to think that these biases affecting expert risk assessment are
as systematic as those affecting lay responses”. As has already been observed,148 the consequences
of erroneous, quite apart from over-optimistic, findings can be very serious, and not merely for the
child her or himself.
A solution to something which has now become an entrenched problem is clearly desirable,
though such a solution must be effective if confidence in the law and its processes is not to be eroded.
That, it is suggested, is a task of immediate priority for law reform and law making bodies. The
original test was, at best, suspect and the case law which has grown up around it – especially that
discussed in this article has not, I would submit, lessened that suspicion. Given the amendments
introduced in 2006 to the Family Law Act 1975, the existing court created test is unlikely to go
towards furthering the aims, and the principles underlying those aims to be found in s 60B149 which
seek to ensure co-operative parenting. In that context, some statutory framework including a legally
recognised evidentiary standard might well be a desirable start.
*****
146 That of quantitative risk assessment as part of environmental policy making.
147 Above n 114 at 166.
149 For comment, see F Bates, “Blunting the Sword of Solomon – Australian Family Law in 2006” in International
Survey of Family Law (2008, Ed Atkin) 21.
23
Prevention of Brick Field Pollution in Bangladesh:
A Legal analysis
Zelina Sultana1
Abstract
Prevention of illegal activities by passing strict laws is a popular mechanism
in everywhere of the world. By adopting legal means prevention is done
always in Bangladesh. So to prevent environmental pollution proper laws have
no alternative. Pollution is discussed in different perspective and prevention
of brickfield pollution also, but it is mainly legal analysis for prevention o
pollution in Bangladesh. However enacting law cannot prevent pollution but
active enforcement of law can do. So enforcement of existing law can make our
environment free from pollution.
Key Words: Brick kilns, Environment, Pollution, Prevention
Introduction
Brick is the most important building construction material at present day. There is no
alternative material such as brick. It had been used for construction since ancient time is borne by
the fact that structures in the fourth century BC township of Pundravardhana at Mahasthan was
built with bricks. So we can say from ancient to today it has been used as an important construction
material in Bangladesh. There is huge number of brick manufacturers in Bangladesh. Brick
production in the country is estimated at about 18 billion pieces a year. The brickfields are typically
small independent units. Most operate only during the dry season. The fields are located near towns
or major construction sites. The same locations are used repeatedly over years. Some has permanent
shed and well-organized input support system.
Such fields with relatively large investment and modern equipment including automated
plant produce better quality bricks. The clay used for brick production is usually mined near the
brickfields. But at times suitable clay is transported from distant locations. Except in automated
plants, brick blocks are molded manually and piled close to the firing ovens so that they can be dried.
Drying takes 5 to 12 days, after which the blocks are put into kilns for firing. Blocks in kilns are
covered with brick dust for insulation. In most brickfields the owner used fire wood as fuel for cheap
and easy collects. However it is prohibited by law. Not only this but also owners do not obey the
prohibition of existing laws and policy, results pollution of environment. So to protect environment,
pollution of air, soil should be checked through implementing laws relating brickfields properly.
Nowadays, whole world is fighting for environment issues and brick fields in Bangladesh
are the one of the burning issues. Our Government made several laws and policies regarding this
1
Lecturer, Department of Law, Jagannath University, Dhaka, Bangladesh
24
matter but still we don’t see any positive outcome. The reason of none implementing those laws is
countless. Only we have to keep in our mind is that for our brighter future, further development of
our country and for better living of our generation we need good environment.
Objectives
The demand of brick is increasing day by day and if our country cannot fulfill the demand we
have to import it from another country. To meet the present demand we have good number of brick
fields in our country, unfortunately all of them are not up to the mark. This paper mainly focuses
those brick fields which adversely affect our health, not only human beings as well as animals and
plants, in one word whole environment. The main objective of this paper is to explain and describe
how brick fields are harmful for human environment. This paper goes through specific laws and
explains, how to solve problems related to brick fields and importance of implementing laws related
to brick field in Bangladesh. Other objectives of this paper are:
1. To discuss the adverse impact of brickfield in the environment as a whole,
2. To evaluate present preventive laws and policies relating to brick fields,
3. To recommended the proper method for preventing pollution from brick field,
Methodology
Bricks are important for making buildings and construction but there are lots of harmful
consequences for brick field. Our environment getting polluted day by day in different ways and
one of the main reasons is brickfields. The objective of this study is to focus the matters related to
brick fields, and to discuss impact of it on environment and also on the laws regulating this issue in
Bangladesh. This paper is based mainly on secondary sources, such as books, article on journals,
features on news paper, and Government, non Government published and unpublished documents
etc. This paper mainly tried to explain environmental laws and policies relating brick field, which
made to protect our surroundings. To achieve a practical knowledge on pollution and impact of brick
field on environment a field visit has been also done on Amin Bazar area Savar, Dhaka. To analyze
the law and policy regulating pollution situation on brick field the visit help to understand the real
picture of pollutions and implications of laws and policy of that area. To focuses the situation of
brickfield worker, their interviews also taken. It is here also mentionable that this paper does not deal
with brickfield workers and their labour related issues. It only discusses on legal preventive method
in Bangladesh.
Brick Field and Pollution in Bangladesh
One of the dangerous sources, for which our wonderful environment is getting polluted,
is brick field. The air is an important element of environment which polluted by it and the other
elements like soil, water, entire ecology are also polluted. The overflowing smokes of brick field are
one of the main causes of air pollution. There are many bad effect of brick field in our country. The
bad effect of brick field can be understood by observing the bad condition of some hills in Chittagong.
The brick field’s owners are using the nearest hills to collect the soil more cheaply and also collect
25
fire wood by cutting trees from Hill forest. As a result, soil erosion in those hills, creation of sandy
layer in arable land is observed. When it rains heavily the hills are collapsed on the house makes its
body and peoples die. So brick field has its long bad effects which all are threaten the ecosystem of
those areas. Mohiuddin Farooque filled a petition to bring judicial notice on indiscriminate, unlawful
and unauthorized cutting and raising hills. The Court on hearing the petitioner, directed the DG, DoE
to submit a report on alleged illegal and indiscriminate cutting of hills, contributing to ecological
imbalance and degradation of environment of the city.2
In Bangladesh Brick fields are established near towns or city mainly, bricks largely used
in build of towns and cities rather in rural areas. Brick fields particulate pollution on its own, or in
combination with sulfur dioxide, leads to an enormous burden of ill health, causing at least 500,000
premature deaths, and 4-5 million new cases of chronic bronchitis each year.3 These gases also attack
plants by creating a layer on leaves. The layer of this particles close down the stomata, the pores
on the leaves by which the plant inhales both carbon dioxide and oxygen respectively to carry out
its photosynthesis process and respiration. If these pores remain inactive for a long time the plant
itself may die. And in Dhaka city many ancient trees are died for last five years. The situation of
the targeted area is very dangerous. Amin Bazar area of Savar Dhaka becomes more vulnerable for
hundreds of brickfield on that area. The presence of brick field area makes it environmentally more
venerable.
Over the years the havoc of the brick fields are causing to our environment, yet there is
no sign of respite in the heinous act. Though a writ petition is filed by BELA for being indifferent
towards the environmental havoc created by the brick furnaces, it is still pending. Upon hearing the
petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy
Commissioner, Noakhali and DG, DoE to show cause “as to why the issuance and renewal of licenses
permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District
causing threat to the natural environment and health of the neighbouring residents of the area should
not be declared to have been done without any lawful authority.4 We are simply appalled by this
continuous harm to the environment as well as denudation of the forests. It is no secret that these
brick fields of the Hill Tracts operate using firewood whereas there is a statutory law that states that
only coal should be used for the purpose. But it is disconcerting that the brick field owners continue
to violate the rule since the authorities concerned turn a blind eye to the violators. Not only that, it is
shocking to note, as stated by an officer of the Department of Environment and Forests, that of the 44
brickfields only two have valid license and other related documents. It is alleged that these brickfield
owners continue with their operations without the help of the unscrupulous government officers.
Brick making is considered to be the largest contributor to Green House Gases (GHGs)
emissions in Bangladesh in the order of 3.0 million tones of CO emissions annually. Brick making
significantly contributes to local air pollution including emission of harmful gases such as Sulphur
2
3
4
Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6020/1997 (Hill Cutting Case)
Bangladesh: state of the environment 2001
Dr. Mohiuddin Farooque v. Bangladesh & others, Writ Petition No. 1252/1997 (Unregulated Operation of Brick
Field)
26
Oxides (SOx), Nitrogen Oxides (NOx), Carbon Monoxide (CO) and Suspended Particulate Matter
(SPM). The GHGs are responsible to create holes in the Oxen layer and this makes our Earth warm
and creates many natural calamities. However we can discuss Brick field pollution in following
different heads.
Brick Field and Air Pollution
According to John Ratzenberger, air pollution is the introduction of chemicals, particulate
matter, or biological materials that cause harm or discomfort to humans or other living organisms,
or damages the natural environment, into the atmosphere. The atmosphere is a complex, dynamic
natural gaseous system that is essential to support life on planet Earth. Stratospheric ozone depletion
due to air pollution has long been recognized as a threat to human health as well as to the Earth’s
ecosystem. Air pollution is one of the major environmental problems now days, especially for
developing countries like Bangladesh. Air is polluted by two major sources in our country, vehicular
emissions and industrial emissions, which are mainly concentrated in the cities. There are also
numerous brick-making kilns working seasonally all over Bangladesh which is the other source of
air pollution also.
Air sampling was done at different locations in a cluster of brick fields of 41 brick kilns
near Amin Bazar, Savar using Gastec tubes and High volume sampler. Gaseous pollutants included
Sulfur dioxide, Carbon monoxide, and Hydrocarbons. Those pollutant data at different locations on
different days were compared with simulated value generated through Industrial Source Complex
(ISC3). Industrial Source Complex model was found very effective and appropriate both for gaseous
pollutants and particulate matter for brick field pollution in Bangladesh and which indicates the
prospect of utilizing this model for different condition and purposes in Bangladesh. However, the air
of Dhaka city is polluted and unhealthy for human health. The air should be protected for saving our
whole ecosystem and our globe.
Brick Field and Soil Pollution
Soil pollution is defined as the buildup of persistent toxic compounds, chemicals, salts,
radioactive materials, or other disease causing agents in soils which have adverse effects on plant
growth and animal health. The soil is composed of both organic and inorganic components. The
soil pollution may occur for many reasons and brick field is one of them. Brick fields pollute both
components such as organic and inorganic components. Soil is an essential ingredient for making
bricks. And the owner of brickfields makes their brick field in that area in which soil is available that
is farm land. It is found that the farmland on which the brickfield is situated becomes useless for 40
or 50 years and no crops are cultivated. Most of the brick kilns established in agricultural land and it
is a gross violation of existing land management laws and manual. As a result a tremendous pressure
on the available stock of agriculture land is occurred and after a specified period the lands do not
remain fit for agricultural purposes. Writ Petition No. 2013 of 2007 challenged the establishment
and operation of the listed brick manufacturing kilns on agricultural land in Barisal. Court issued
a rule to show cause the respondents as to why the establishment and operation of the listed brick
27
manufacturing kilns should not be declared unauthorized and illegal. The honorable court also
declared that the same violate the provisions of the Local Government (Union Parishads) Ordinance,
1983, the Bangladesh Environment Conservation Act, 1995 and the Environment Conservation Rules
of 1997 made there under, the Brick Burning (Control) Act, 1989, the Smoke Nuisance Act, 1905,
Penal Code, 1860. The court also issued why the respondents should not be directed to take effective
and appropriate measures to prevent the operation of the brick manufacturing kilns and to remove the
same from the prohibited proximity of the villages of Uttar Rahamatpur, Khudrakatthi, Mohishadi,
Doharika and Mirgonj under Babuganj Police Station, District Barisal.5 In another writ filed by
BELA court issued those respondents to show cause as to why the establishment and operation of the
listed brick manufacturing kilns should not be declared to have been done unauthorized, illegal and
in violation of laws. The Court also directed to take effective and appropriate measures to prevent the
operation of the listed brick manufacturing fields/kilns and to remove the same from the prohibited
proximity of the said villages of Lalpur Upazila as the same is against public interest and in violation
of the fundamental rights of the villagers.6
According to the Department of Agriculture Extension, the presence of the brick fields has
made agriculture impossible in 2000 acres of land in Savar area near Dhaka. Crop production has
reduced from 70% to 80% in 3000 acres affected by the emission of the gases from the brick fields.
These gases also disturb pollination by keeping away the helpful insects from the crop fields and
thus interrupt the long-term production process. The whole area turned into in dessert and crops
less and trees less also. Human health is also adversely affected by the pollution of soil. Some soil
pollutants may destroy the brain, nervous system, kidney function and so many health problems such
as headache, fatigue, eye-irritation, skin diseases etc. The soil pollution is increasing day by day. So
we must control or prevent such kind of problem for our safe environment by taking all possible
steps immediately.
Brick Field and Deforestation
With the growing of public needs the most important Mangrove forest Sundarban is now
under threat. Most experts agree that due to direct and indirect impact of human interventions, farreaching changes are taking place slowly but steadily affecting the delicate Sundarbans ecosystem.
Much of such changes are not clearly visible instantly but its effects are come through natural
calamities like Tsunamy, Sidr, Aila, Nargis etc. Brick fields of Bangladesh severely affect the forest
of our country as trees are used as main fuel for producing bricks. Using firewood in brick fields
is banned by law, but the practice still continues on a fairly large scale as it is still cheaper than gas
and coal. Natural gas is used in only about 200 brickfields that are close to gas distribution networks
around Dhaka, Brahmanbaria and Chittagong. In fields, which are not automated and do not have
gas connections, the firing starts with wood and later continues with coal. The coal is imported
mainly from India but it cost more than fire wood. Substitutes of coal in some cases include wood
5
6
BELA v. Bangladesh and others, Writ Petition No. 2013 of 2007 (Brick fields in agricultural lands in Barisal)
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 8815/05
(Illegal Operation of Brick Fields in Lalpur, Natore)
28
dust, furnace oil and even rejected tires. These all produce lots of fumes on the air and causes air
pollution. Pollution may not be a direct source of mortality, but it may also reduce the health of the
forests, increasing the mortality rate of the flora and fauna on the long term. Many products such as
pesticides have also been proved to reduce the reproductively in animal populations. The illegal use
of wood as fuel for brick making activities in Bangladesh contributes to deforestation.
Brick Field and Ecology
Brick field emissions have long been polluting the environment all over the country. There
has been a continuous rise in brick fields due to the growing construction boom that has increased the
demands of bricks. It is a matter of great threat that there has been illegal proliferation of brickfields
at Khagrachari in the Chittagong Hill Tracts. It is shocking to learn that many brickfields, covering
eight upazillas of the CHT alone, use as much as 20 crore mounds of firewood per year. These
brick fields are not only polluting the surrounding environment but also having adverse effects on
the agriculture of the region. Besides, these fields that are wood-fired are also depleting the forest
resources of the country apart from emitting very harmful gases. These obnoxious and harmful
emissions are hampering fruit bearing trees around the brick fields. The ultimate result of this
brickfield pollution is creating imbalance situation in ecology which may make our serving more
difficult and impossible.
Prevention of pollution by legal means
It is our national natural habit to enact laws and policy and also disobeyed them. Every
owners of brick field should obey the laws in establishing brickfields. The government should care
to ensure the enforcing of laws, which will bound the owners of brickfields to adopt the right path.
We make the owner understand that we all should work for the protection of environment. We should
always remember that this environment is mine, yours’ and everyone’s. For this reason, it is a duty
of all to save our environment and to save our Earth.
Our country is a developing country and it is developing in keeping pace with entire world. In
a developing country the urbanization process has grown rapidly, same happens to our country. Brick
is the key element for any kind of urbanization of our country. These bricks come from different brick
fields. The brick fields need a very little investment and its profit is more. In this business there is no
loss of the business men. So brickfields are grown as mushrooms all over the country. Sometimes
they are established without license and legal authority. In illegal construction Court issued the
respondents to show cause as to why the establishment and operation of the brick kiln namely M/S
A.R. Constructions in the village of Naodaboga, Upazilla- Sonatola, District-Bogra should not be
declared to have been done unauthorized, illegal and in violation of laws. 7 The more easily money
is earned; the more rapidly our ecosystem is destroyed. It is a silent killer of our environment and a
destroyer of our entire eco-system.
7
The Constitution of the People’s Republic of Bangladesh deals with the protection of right
Writ Petition No. 1252/1997 and Writ Petition No. 4962/05
29
to life and personal liberty.8 It does not explicitly recognize the right to environment like as the
Constitution of India. Is a mentionable matter that in two recent cases [48 DLR (1996) 438 and 17
BLD (1996) (AD) 1] the Supreme Court of Bangladesh has resolved that the “right to life” enshrined
as a fundamental right includes the “right to a healthy environment”. The Judgment addressed some
vital issues for the first time. While the authorities were directed to adopt necessary measures to ensure
proper testing of milk, the scope of constitutional right to life was given a broader meaning. Right to
environment was expressly recognized as being included in right to life. So we can demand a healthy
air or healthy environment as a fundamental right. And as fundamental right we can now enforce it
if it violates by anyone. Enforcement of fundamental rights is important and also recognized by the
Constitution itself. Fundamental rights can be enforced under article 44 which read with article 102
of the Constitution of Bangladesh by filing writ. According to the Constitution of Bangladesh those
fundamental rights can be enforced by article 44 which provides the right to move the High Court
Division in accordance with clause 1 of article 102 for the enforcement of the rights conferred by
Part III is guaranteed. If these rights are violated one can move to the court of law for remedy by
filing writ petition. This type of writ is known as public interest litigation in our country. The Public
Interest Litigation opens the scope for every person to protect their rights through liberalizing the
concept of locus standi.9
A new era in the field of public interest litigation began with this landmark decision. And
public interest litigations are instituted to protect our environment also. Some public interest ligations
are filed concerning brickfield pollution. Bangladesh Environmental Lawyers Associations (BELA)
plays an important role in this respect. It has already filed five petitions regarding brickfield in
different parts of Bangladesh. In 1997 BELA filed a writ on behalf of Senbag Thana Pollution Free
Environment Committee of Noakhali District for being indifferent towards the environmental havoc
created by the brick furnaces. The management of the brickfields failed in conducting their business
which is favourable with healthy environment as well as state. Another concerning issue of this writ
is leasing agricultural land to brick fields in violation of existing land management laws. It resulted
in a tremendous pressure on the available stock of agriculture land, as after a given period the lands
do not remain fit for agricultural purposes.10 BELA also filed another writ against illegal construction
and operation of a brick field in Naodaboga, Bogra district. 11 In the same matter BELA Challenged
the establishment and operation of the listed brick manufacturing kilns in Barisal in 2007, writ
Petition No. 2013 of 2007.
It cannot be said that all brick fields should be banned as it is most important element
8
9
Article 32 of the Constitution of People’s Republic of Bangladesh
Dr. Mahiuddin Farooque v. Bangladesh (Civil Appeal NO. 24 of 1995), In this case the court held that the expression
‘person aggrieved’ means not only any person who is personally aggrieved but also one whose heart bleeds for his
less fortunate fellow beings for a wrong done by the Government or a local authority not fulfilling its constitutional
or statutory obligations.
10 Dr. Mohiuddin Farooque v. Bangladesh & others, Writ Petition No. 1252/1997 (Unregulated Operation of Brick
Field)
11 Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 4962/05 (Illegal Operation
of a Brick Field in Naodaboga, Bogra)
30
for our construction. In the age of urbanization, its role is unmentionable. But by avoiding rules
and regulations, brick is made everywhere and the rate of pollution is increased. According to the
“Brick Burring Regulation Ordinance 1989 (amended in 1992)”, any logs or log-made products in
brickfields is strictly prohibited except the bamboo stumps. For breaking the rule it fines maximum
Taka 50,000 and a maximum six months imprisonment or both.
At least 24 laws have been identified that contain provisions regarding conservation of
environment and control of environmental pollution from various sources. Of these, the Bangladesh
Environment Conservation Act, 1995 that has been enacted as mentioned in its preamble to control
and mitigate pollution and environmental conservation demands specific mentioning. There are laws
enacted earlier to deal with pollution and conservation. For example, the Penal Code of 1890 has
provisions to check pollution to the atmosphere; the protection and Conservation of Fish Act, 1950
provides for measure to ensure undisturbed spawning grounds; the Bangladesh Wild Life Order,
1973 prohibits certain dealings contain provisions to address pollution of air, soil, water and other
component of the environment. These legislative requirements covering areas, inter alia, specific
with industrial, vehicular and marine pollution prohibit certain activities, which might destroy and
damage the surrounding ecosystem of all living creatures.12
It has been noted earlier that, the main reason of air pollution in Bangladesh is the black
smog produced by industrial and vehicular emissions. Especially the huge number of brick-kilns and
the indiscriminate cutting of trees for use as firewood are affecting the environment a lot. These are
because the laws are not in action. Parliament of Bangladesh passed the Brick Burning Control Act,
1992 which provides that a brick field can be set up on 1.5 acres of land but many brickfield owners
use 3 to 6 acres of land, in some cases more than that, for setting up brickfield. Certainly the land
should be fallow land but in most cases it is not. It is also mandatory to install a minimum 50 feet
high chimney with filter in every kiln for emission of smoke. But the owners are violating the law
using lower chimneys and sending vaporous waste, dust, carbon dioxide, carbon monoxide, sulfur
dioxide, florin etc in the immediate atmosphere. According to Brick Burning Control Ordinance of
1992 and 2001 the owners are prohibited from using all kinds of fire wood in kilns and that a law
breaker will be fined Taka 50,000 or sentenced to six months imprisonment.
According to section 12 of the Bangladesh Environment Conservation Act (ECA) 1995, no
industrial unit or project shall be established sentenced to six months imprisonment or undertaken
without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from
the competent authority. Section 15(8) of the said Act provided 3 years imprisonment or 3 lack Taka
fine or both for the violation of section 12. But it goes without saying that the rules are violated
rampantly in exchange of money and we hardly saw anyone to have been punished under the law. In
the urban areas the black smog produced by vehicular emissions is going on in violation of the traffic
law as well as the Bangladesh Environment Conservation Act, 1995. The four major cities of Dhaka,
Rajshahi, Cittagong and Khulna are the main victim of this.
12
According to section 6 of the Bangladesh Environment Conservation Act, 1995 vehicles
Mohiuddin, Laws regulating Environment in Bangladesh
31
emitting smoke or gas injurious to health or environment shall not be operated nor shall such vehicles
be switched on except for the purpose of test-operation. And “smoke or gas injurious to health or
environment” means any smoke or gas which exceeds the standards fixed by the rules. According
to section 15(3) of the said Act any violation of this law would entail a penalty of 5 or 10 thousand
Taka in different cases. Black smog is mainly produced by the old and unfit vehicles. And so to
haul old and unfit vehicles under section 47 of the Motor Vehicles Ordinance, 1983 seems the only
option to check it. There is a system of carrying a fitness certificate. It can create a very positive
impact for reducing air pollution in Dhaka city. But a section of corrupt officials of Bangladesh Road
Transport Authority (BRTA) are allegedly issuing fitness certificates to unfit vehicles. So, in fact, the
environmental laws could not be enforced for the corruption, which seems to be the main national
problem of our country.
It is also a reason of air pollution in Dhaka that the Dhaka City Corporation (DCC)
Ordinance, 1983 does not deal much with the total environmental problems. Bangladesh
Environmental Conservation Act (ECA)-1995 and Environmental Court Act-2000 are two important
legal instruments for control and conservation of environment. These laws have got the provisions
for imprisonment up to 10 years or fine up to Taka 10 lack or both. But in fact, punishments for
violation of environmental law in seldom occur in Bangladesh. It should be noted that, there are a
good number of Acts in the country to deal with environmental problems. But some of these laws
are so old that they cannot fulfill the present demand of the society. It is more important to mention
that, most of the laws are not enforced due to alleged practice of corruption among the enforcing
authority. The new laws also need amendment to accommodate the present environmental hazard.
All laws are very much welcomed by all people in our country. But, all such laws go in
vain only for the practice of corruption at levels of enforcing authorities as well as in the higher
level of government. For this reason we see huge number of old vehicles on the road causing
rampant environmental pollution. In 2000 ‘Environmental Court Act 2000’ passed for completing
environment related legal proceedings effectively. But the number of environmental court is not
adequate with the present need. The delay disposing of cases is also another reason for pollution of
environment and establishing and continuing of illegal brick manufacturing in our country. As stated
above the writs are still pending. Steps should be taken as soon as possible to dissolve the writs.
Enacting a law is easier than to implement it. Since the birth of Bangladesh many laws have been
enacted for the protection of environment. But, we all know a very little law is effective properly in
our country. Protection of environment is the first priority for every state. To protect our environment
from pollution it is necessary to implement and make effective the existing laws same way to give
justice to the vulnerable groups and the wrong doer should be severely punished.
Recommendations and Concluding Part
Undoubtedly bricks are essential for urbanization. It is an important part for our development.
So its production cannot be stopped but we should make it sustainable for our environment. Owner
of brickfields use firewood as fuel in the brickfield for more benefit. But regulations are there for
the brick fields not to burn firewood for this has a vital linkage to the environment. The demand
32
for firewood in the brick kilns leads to the cutting down of trees creating both deforestation and
imbalance the ecosystem. We should care of our environment as it is our all. To prevent brickfield
pollution the following suggestions may be followed:
• Government of Bangladesh should take necessary steps to implement existing laws related
to brick fields.
• The number of Environmental court should be increased.
• Environment related cases including brickfields should be disposed of without delay.
• Every owner of the brick field should obey the prohibition of constructing brick kilns.
• The punishment of disobeying the prohibition should be increased.
• There should be imprisonment at least 5 to 10 years for cutting trees for using as firewood
for brick.
• Most of the laws related to environment are years old, so it is necessary some contemporary
amendments.
• The area of Bangladesh is very small therefore brick field should be set up on 1 acres of land
and no more than.
• Height of the chimney should be more than 50 feet 7. The brickfields should be shifted far
from the residential places.
• There should be strong social network among brickfield owners.
• Government should make strict laws related to license for brick field business.
• Unlicensed brickfield should be licensed properly. Cause they break the laws easily.
• To invent new construction material for building and try to introduce it in all over the country
so that the dependency of bricks is reduced.
• Welfare of the workers in the brick fields should be given importance.
There are regulations that the establishment of brick fields in densely populated areas or too
near places having considerable trees and vegetation are prohibited. And the building of chimneys
at a certain height and building the chimneys in such positions that their exhaust can be discharged
towards relatively less inhabited places or away from trees and vegetation. But those regulations are
not strictly implemented. However, in many populated area in our country along with their trees and
vegetation, are facing environmental degradation from the freestyle operation of the brick fields.
People in these areas are suffering from respiratory diseases such as asthma, various skin diseases
and other ailments for unregulated brick burning. The dying of trees and vegetation in these places
and the excess fumes of brick fields, are contributing to the serious environmental decline there. All
of these things dictate the need for strict enforcement regulations in relation to the brick fields.
*****
33
Fundamental Duties’ as a Stratagem for Augmenting the Human
Rights?
Prof. B.B. Pande1*
The future of legal rights and human rights thinking, action and practice is bound to be
impacted significantly by the three distinct, yet simultaneously occurring, phenomena: First, relates
to the ushering in a ‘crazy race’, fanned by globalization and associated technological expansions, for
growth (mostly economic) and so called development, including new ways and means of organizing
industry and agriculture and exploitation of natural resources such as minerals, land and water. As
a sequel we already witness, as never before, giant economic strides and mass production of goods
leading to emergence of islands of riches and opulence and mushrooming of leisure and pleasure
joints even amidst filth and squalor, both in the developed and the developing societies2. Second,
relates, almost opposite of the first phenomenon, the continued, and even increased, vulnerability
of the large section of the population that appears to be stuck-up in the cycle of under-development,
forced displacement, landlessness and homelessness. The vulnerable sections are hit hardest by
the rise in food grain prices and cost of basic necessities and services. Their material deprivation
and ability impairment makes them perpetual victims of marginalization syndrome that condemns
them to an undignified and sub-human existence from generation to generation3. Third relates to
a civilization benchmark at the ideology or idea level that is marked by paradigm shift in human
thinking about human needs, wants and aspiration and the consequential import of their unintended
and intended denial in most of the societies in the world4. The third phenomenon has received
1
2
3
4
Former Professor of Law, Delhi University and Consultant (Research) National Human Rights Commission.
Post Globalization economic resurgence has expanded the means and modes of growth and development enormously
that have created unprecedented opportunities for global trade partners and multi-national corporations to reap much
greater economic returns than the colonial rulers ever did. Even new developing countries have benefited from such
global economic turn-around. The U.N Human Development report 2010 by the UNDP lists India as amongst top
10 fastest growing economies of the world in terms of income and material growth. India has a GPA of $3.57 trillion
and $3100 per capita income. Between 1980 and 2010 the Indian Income index has gone up from 0.27 to 0.46. as a
consequence, according to one estimate, over one lakh twenty five thousand people moved to fifty crores and above
economic holdings in the last decade itself.
The Global Hunger Index 2010 (GHI), released by the International Food Policy Research Institute has made a
striking revelation of the existence of almost a billion hungry people in the world. The GHI has identified high
prevalence of child undernourishment that goes in to contribute to persistent hunger. Similar statistics about India is
given in the UN Development report 2010, which reports the fact of presence of 321 million multidimensional poor
population mainly located in States such as Bihar, Madhya Pradesh, Rajasthan and Uttar Pradesh, which is almost
half the world’s poor population. The continued presence of such a substantial number of poor in India, despite
creditable economic growth is an indicator that the economic growth has hardly percolated to the lower strata of our
society.
Particularly Professor Amartya Sen’s critiques of entitlements, freedoms and rights and substituting with capabilities
approach are an example of decisive shif in thinking. For a detailed reading of Sen’s critiques and alternative
approach see Poverty and Famines (1981) OUP; A.K. Sen and Martha Nussbaum (ED), The Quality of Life (1993)
OUP; Rationality and Freedom (2002) Balknap Press, London; Similarly Martha Nussbaum has propagated her
ideas of basic justice in terms of ten central human capabilities in Frontiers of Justice (2006 OUP).
*
34
considerable attention in the developed western societies and the committee of nations led by the
United Nations. It is paradoxical that the third phenomenon that was largely the creation of the
western states, itself became a cause for the erosion of the traditional notions of the state sovereignty,
on one hand and considerable embellishment of the rights civil and political as well as economic,
social and cultural- of the individual members on the other5. The rights thinking has been augmented
further by the recognition of new kinds of the claims of traditionally ignored sections such as the
tribals, the forest dwellers, the landless and homeless, women and children etc6. Not only have the
types of rights and the list of rights target population grow, but new techniques and strategies for
effective delivery of interests have also been devised. The two recent and notable additions to the
new strategies are:
a) The distinct enumeration of fundamental duties in the Constitution, and
b) The United Nations Millennium Development Goals (MDGs), 2000.
Just by the way of comparison of the two strategies, it is interesting that though the two
strategies appear to differ in their orientation i.e. the fundamental duties being individual-centric
and the MDGs being society or collectively – centric , but both are supposed to aim at augmenting
the individual rights. Since the present discussion mainly focused on the fundamental duties as
enshrined in Article 51A of the Constitution that were introduced through Constitution (Forty
Second Amendment) Act, 1976. We propose to address some of the following issues: How are the
fundamental duties conceptualized and what diverse interests are covered by the sub- clauses of
Article 51A?
Do the fundamental duties have a general application or they are targeted to particular
privileged sections? How have the Indian courts interpreted the fundamental duties? What is the
relationship between fundamental duties and fundamental rights, particularly the human rights? Etc.
(i)
Conceptualization and Identification of Fundamental Duties
In line with the Asian and African communitarian and traditionalism the Indian society is
better acquainted with duty oriented social relations. For the Hindus the Dharma determined ones
duty at different stations of life cycle. The duty oriented social values received a strong endorsement
from the writings and preaching of Mahatma Gandhi for whom the true source of rights lay in due
performance of the spiritually ordained duties in the following words: “ I learnt from my illiterate but
wise mother that all rights to be deserved and preserved come from my duty well done. Thus the very
right to live accrues to us when we do the duty of citizenship of the world. From this one fundamental
statement, perhaps it is easy enough to define duties of a man and women and correlate every right to
some corresponding duty to be first performed. Every other right can be shown to be an usurpation
5
6
The Int. Covenant of Civil and Political Rigts, 1966 and the Int. Covenant of economic, Social and Cultural Rights,
1966, followed by the Millennium Declaration 2000 and the Millennim Development Goals constitute the most
comphrehensive evidence in the area of individual rights thinking.
The Convention on the Elimination of all Forms of Discrimination Against Women 1979 (CEDAW), the
International Convention on the Elimination of All Forms of racial discrimination, 1969, the declaration on the
Right to Development, 1986, the Convention on the rights of the Child, 1989 etc are some leading examples of
rights of special category of claimants.
35
hardly worth fighting for.” The Gandhian emphasis on duty first has been given a different kind of
emphasis in Article 29(1) of the Universal Declaration of Human Rights, 1948 and the preamble
to the International Covenant on Civil and Political Rights, 1966, that lays emphasis on ones duty
towards the community that constitutes the true source of full development of the personality.
For the fundamental duties to be appreciated by each individual and the community truly,
requires critical awareness and acceptance of the citizenship values that constitute the foundation
of every harmonious and peaceful social order. Why then the framers of the Indian Constitution
did not incorporate the provisions of the fundamental duties in the original Constitution? Why the
fundamental duties had to wait for over two and a half decades before the Constitution (Forty Second
Amendment) Act, 1976 introduced them in Chapter IV A?
The National Commission to Review the Working of the Constitution (NCRWC) in their
consultation paper titled ‘Effectuation of Fundamental Duties of Citizen’ (here in after Duties of
Citizens) has identified three reasons for the omission of the fundamental duties provisions in the
original Constitution, as follows: Firstly, it was felt that the citizenship values were considered as
such basic and inherent values that each citizen practiced them in his daily life, therefore, there
was hardly any need to repeat them in the Constitution. Secondly, the preamble was considered as
an adequate spelling out of the citizenship values which created an obligation for the citizens, and
Thirdly, all the rights enshrined in Part III had an inbuilt obligation and, therefore, the fundamental
duties flew there from7. Thus, in the view of the NCRWC the fundamental duties were either
inherently ingrained in the national way of life or fairly explicitly enshrined in the preamble or the
fundamental rights guarantee; therefore, they did not need specific enumeration in the Constitution.
Why then the fundamental duties become such a focal point of the Forty Second Amendment in
1976? Though one of the motivation of those responsible for the enactment of the Forty Second
Amendment and specific recognition of fundamental duties may have been to curb the growing trend
of political dissent and challenge to the established legal regime, but the incorporation of wide range
of obligations relating to national heritage, environmental and: wild life protection, non-violent way
of life, and striving for individual and collective excellence is an indicator that the fundamental
duties were conceived with a view to really impacting the distortions that had set in the Indian
way of life. Perhaps, the letter addressed by the former Chief Justice Rangnath Mishra to the then
Chief Justice of India (that was taken cognizance as a writ Petition) gives the right reasons for the
introduction of Article 51A as follows:
“All of us are experiencing to our horror degrading human behavior in society
everyday. The deterioration is gradually becoming sharper and unless this fall is
immediately arrested and a remedial measure found out and enforced the situation
would not improve. Fundamental Duties have remained in the constitution Book and
have not come out to reach even the class of people who handle the Constitution.
…………..”8
7
8
Paras 125, 126, 127 of The Duties of Citizens p.5.
Quoted in The Duties of Citizens p.5.
36
Justice Mishra’s letter petition does point out growing distortions in human behavior that
needed to be arrested, but there is no clear indication as to the sections whose behavior distortions
needed to be addressed on a priority basis.
(ii)
Fundamental Duties Relate to a Wide Range of Interests That May Not be
Easily Reconcilable.
The ambitious list of ten fundamental duties spelled out in Article 51A (a) to (j) relate to
wide range of interests that have been identified as the fundamental duties of “every citizen of
India” (which has come into force with effect from 03/01/1977)9. In addition to the ten original
fundamental duties, in 2002 the Constitution (Eighty Sixth Amendment) Act added clause (k) that
creates a new duty for a parent or a guardian of children between six years and fourteen years to
provide opportunities for children’s education. The duties under the aforesaid eleven clauses can be
grouped into five distinct categories namely
(i)
(ii)
(iii)
(iv)
(v)
Duties relating to state, its institution, National Flag and National Anthem,
Sovereignty, Public Property etc. as enumerated in clauses (a), (b), (c), (d),
and (i).
Duties relating to National Heritage and composite culture, as enumerated in
clauses (e) and (f).
Duties relating to natural environment and wild life, as enumerated in clause
(g).
Duties relating to scientific temper and spirit of enquiry and reform and
striving for individual and collective excellence with a view to raise national
level of achievement, as enumerated in clauses (h) and (j) and
Parental duty for educating children between 6 and 14 enumerated in clause
(r).
However, the Government of India Committee under the Chairmanship of Justice J.S. Verma
9 Article 51 “It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious,
linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion
for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to
higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between
the age of six and
fourteen years.
37
(1999) titled as Fundamental Duties of citizens: Report of the committee set up by the Government
of India to Operationalize the Suggestions to Tech Fundamental Duties to the Citizens of the country
(here in after the Verma Committee) groups the clauses into three according to target group they cater
to, the nation as a whole (clauses a, b, c, d,), the community (clauses e, f, g, i) and the individual
(clauses h, and now (after 2002) k also)10.
The fundamental duties have been in the Constitution for well over three and a half decades,
yet there is still little awareness about their contents and operational implications in the fact each of
the eleven duties has a bearing for the individual members, the community and even the nation state.
Despite the Verma Committee recommendations and Justice Ranganath Misra petition, discussed
earlier, very little initiative has been taken to create, legal literacy about fundamental duties either
at the public functionary level or at the level of undergraduate and graduate students or the common
citizenry levels. That is the reason for paucity of any worth while research or writing on this theme.
In this context it may be worthwhile to refer to an excellent research article by Subhankar Dam, titled
as “strikers through the prism of duties: Is there a Duty to Strike under the India Constitution”11.
Dam has addressed the issue of labour strikes from a duty perspective to find an answer to a vital
question: Is there a fundamental duty to strike under the Indian Constitution? To the author there
was unanimity that Ahimsa inspired our national struggle. In true Gandhian tradition the author
opines that “For fundamental duty to strike under the Constitution to exist, it must be shown that
Satyagraha, as understood by Mahatma included strikes. This note broadly addresses two questions.
Did Satyagraha as an ideal that inspired our national struggle for freedom include strike? Secondly,
what are the conditions under which citizens could strike as part of this larger canvas of Satyagraha
practices?12 The author not only concludes in a positive note but also locates right to strike right
within Art. 51A(i)(b) in these words: “Strike as an ingredient of the larger Satyagraha philosophy
was an integral part of the ‘ideals that inspired our national struggle for freedom’. Therefore, when
Article 51(1)(b) exhorts Indian citizens to “cherish and follow the noble ideals that inspired our
national struggle for freedom, it includes a fundamental duty to strike, … strikes may be said to
have been “inspired by our national ideals” only if it satisfies the condition of “just demand”, “nonviolence” and “willingness to submit the dispute for arbitration”. In other words, a strike that turns
violent or a strike wherein the participants refuse to submit to arbitration cannot be in pursuance of
the fundamental duty under Article 51A (b). However, public servants have no such duty to strike
under Article 51A (b).”13
The initiative taken by Subhankar Dam in the context of duty to strike needs to be replicated
in respect to other duties as well, but that is contingent upon creation of right kind of awareness
and education about the fundamental duties. Further more, reading too wide a duty to dissent may
often pose problems of reconciliation with the clause (c), (d) and (i) that are largely premised on
10 Quote in Roy, Anupama, “Making goods citizens: Teaching Fundamental Duties in School,
‘ Economic and Ploitical Weekly, June 21, 2003 at p. 2472.
11 Dam, Subhankar Asia-Pacific Journal on Human Rights and Law. P. 68-82, 2004
12 Ibid at p. 70.
13 Ibid at p.82.
38
certain degree of fidelity to the state in respect of Sovereignty. The irreconcilability of competing
duties has already come to force in the response of extremism and Maoism. Similarly, problems
of irreconcilability may crop up between those fundamental duties that are secular and modernityoriented such as the ones provided in clauses (h) and (j) and the tradition bound duties enumerated
in clauses (e) and (f). Obviously the reconciliation will have a lot to do with the attitude and mindset
of the authority that has the last say on the matter.
(iii)
Are Fundamental Duties General in Nature or Class Specific?
As a member of the National Task Force for Human Rights Education, constituted by the
National Human Rights Commission in 2006-2007, I used to often come up against those members
of the Task Force who were in favor of giving duty education a priority over right education. As a
strong votary of rights education only, I used to counter the duty education advocates by arguing:
“For thousands of years the lower castes, and property-less have known only duties. Please do not
re-legitimize the duty myth any longer.”
I was conscious that Article 51A imposes a fundamental duty on “every citizen of India”,
but the reality duties can be imposed only on those who are in a position to uphold them. Thus, for
a large section of our citizens who neither enjoy civil and political power, who lack in economic,
social or cultural resources, to expect them to comply with duties would only be a unjust and unfair
burden that could never be understood as the intention of the drafters of the Constitution. As a young
activist I used to often quote Paulo Friere in support of my arguments of differential obligations for
the oppressor and the oppressed. Friere had observed thus:
Violence is initiated by those who oppress, who exploit, who fail to recognize
others as people- not by those who are oppressed, exploited and unrecognized. It is
not the unloved who cause disaffection, but those who cannot love because they
love only themselves.14
Speaking in human rights in India seminar organized by Harvard Law School in the US
in 1998, Professor Granville Austin made a very profound comment, while describing the state of
Human Rights Observance in India that:
“Human Rights are threatened much more by the non-state hierarchies of caste,
religion, and tradition in India, rather than the state agencies like the police, the Prisons
or the correctional administration.”
In the above observation Granville Austin was also pointing towards the reality of uneven
distribution of power in societies like India, which are traditionally in egalitarian. Therefore,
fundamental duties, like the human rights, must be directed primarily to discipline the powerwielding and resource controlling classes. The ordinary citizens need to be only aware of the duties,
at best, secondarily targeted by the fundamental duties: a forest dweller who is neither provided
alternate fuel nor resources for buying fuel wood, cannot be expected to comply with the duty to
14
Freire, Paulo, Pedagogy of the Oppressed, Penguin Books (1972) at p. 32.
39
protect the forest under clause (g) of 51A. Similarly children reared up in an environment of denials,
deprivation and frustrations cannot be expected to appreciate, much less comply with the duties of
protecting common heritage and composite culture. The enabled are under a fundamental obligation
to create facilities and means first.
(iv)
Fundamental Duties and their Interpretation by the Courts
As a key constitutional authority the pronouncements of the Supreme Court and the High
Courts regarding the rights of the citizens, directive principles of the state policy and fundamental
duties are accorded a distinct and hallowed status. The Supreme Court and the High Court have been
resolving fundamental conflict of interest issues as per the philosophy and spirit of the Constitution
even before the specific incorporation of fundamental duties in the Constitution in 1976. In Chandra
Bhawan Boarding and Lodging Bangalore v. State of Mysore and Anr15 in 1969 the Supreme Court
while resolving workers petition for payment of minimum wages as against the industry’s plea
of freedom of trade with profits had laid down freedom of trade does not mean the spirit of the
Constitutional provision thus:
It is a fallacy to think that under our Constitution there are only rights and no duties. While
rights conferred under Part III are fundamental, the directives given under Part IV are fundamental
in the governance of the country. We see no conflict on the whole between the provisions contained
in Part III and Part IV. They are complementary and supplementary to each other. The provisions
of Part IV enable the legislature and the Government to impose various duties on the citizens. The
provisions therein are deliberately made elastic because the duties to be imposed on the citizens
depend upon the extent to which the Directive Principles are implemented. The mandate of the
Constitution is to build a welfare society in which justice social, economic and political shall inform
all institutions of our national life. The hopes and aspirations aroused by the Constitution will be
belied if the minimum needs of the lowest of our citizens are not met.
Since Article 51A is silent on the matter of enforcement of fundamental duties, often it is
understood to be a weak legal measure in comparison to the fundamental rights that are backed by
a clause of enforceability in Article 32.16 But there do exist Supreme Court ruling like Javed and
Others v. state of Haryana and Ors17, Union of India v. Naveen Jindal and Ors18, State of Gujarat
v. Mirzapur Reporter19, in which the courts categorically ruled that fundamental rights are not to be
read in isolation, but must be read with the directive principles and the fundamental duties. Thus,
fundamental duties are the vital law for the interpretations of the citizen’s rights and the reasonableness
of restrictions that state can impose on them. In Government of India v. George Philip20 the Supreme
15
16
17
18
19
20
(1969) 3 SCC 84.
Surya Narayan v. Union of India (1981) 4 SCC 481; Ramsharan Autyanuprasi v. Union of India, A.I.R. (1989) S.C.
549
A.I.R. 2003 SC. 3057.
A.I.R 2004 SC 1559.
A.I.R 2006 SC. 212.
A.I.R 2001 SC. 705.
40
Court held: “Courts should not pass such orders which instead of achieving the underlying spirit
and objects of Part IV A of the Constitution has the tendency to negate or destroy them.” The lack
of enforceability measure that is said to weaken the legality of the fundamental duties can be most
effectively met by the logic of the following observations of Justice Bhagwati in Minerva Mills v.
Union of India21 case: “A rule imposing on obligation or duty would not therefore cease to be a rule
of law because there is no regular or quasi-judicial machinery to enforce its command. Otherwise the
conventions of the Constitution and the rules of International Law would no longer be liable to be
regarded as rules of law”. The view is clearly supported by the opinion of Prof. A. L. Goodhart who
while commenting upon this point says: “ I have always regarded that if a principle is recognized as
binding on the legislature, then it can be correctly described as a legal rule even if there is no court
that can enforce it.”
There are the following three areas in which court rulings of significance in respect of
fundamental duties have been handed down:
(a) Fundamental Duty to Protect Ecology, Environment and Wild Life
In Rural Litigation and Environment Kendra & Ors v. State of U.P22 Justice Rangnath Mishra had
held:
Preservation of the environment and keeping the ecological balance unaffected
is a task which not only Governments but also every citizen must undertake. It is a
social obligation and let us remind every Indian citizen that it is his Fundamental Duty
as enshrined in Article 51 A (g) of the Constitution.
In another environmental related case Rural Litigation and Entitlement Kendra Dehradun
and Ors v. State of Uttar Pradesh23, the Supreme Court did not desist in ordering closure of limestone
mines despite strong plea of quarry owners of rights to trade and business. The Supreme accorded
parmount significance to fundamental duties, rather placing the fundamental duties owing to people
at large above the fundamental rights of a few individuals. The Court realized that such closure
would cause hardship, but it is a price that has to be paid for protecting and safeguarding the right of
the people to live in healthy environment with minimum disturbance of ecological balance etc.
Finally in the M. C. Mehta v. Union of India and Ors24 the Article 51A (g) was read to cast
the duty on the Government and for issuing certain directions in consonance with the fundamental
duty as follows:
(i)
(ii)
21
22
23
24
The Central Government direct to the educational institutions through India to teach
at least for one hour in a week, lessons relating to environment including forest,
lakes, rivers, and wildlife in the first ten classes.
The Central Government shall get text books written for the said purpose and
(1980) 3 SCC 625.
(1986) Suppl. SCC 517; Also see Sachidanand Pandey v. State of West Bengal (1989) 2 SCC 295.
A.I.R 1985 SC 552.
(1998) 1 SCC 471; See also Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647;
(iii)
(iv)
(v)
(vi)
41
distribute them to the educational institution free of cost.
The children shall be taught about the need for maintaining cleanliness and with the
cleanliness of the house, both inside and outside and the street in which they live.
The Central Government shall consider training of teachers who teach this subject
by introduction of short term courses for such training.
The Central Government, the Government of the states and all the Union Territories
shall consider the desirability of keep the city/town/village clean week.
To create a national awareness of the problems faced by the people by the appalling
all around deterioration of the environment.
Finally in Mrs. Susetha v. State of Tamil Nadu25 the court ruled that the right to clean and
pure water flows from Article 21. However, the note worthy principle that flows from the case is that
in view of the board and positive interpretations of Articles 47, 48A and 51A (g) the State is under a
Constitutional obligation to ensure the enforcement of this right under the existing legislations like
the Environmental Protection Act, 1986.
(b) Fundamental Duty to Develop Scientific Temper and Spirit
Reform and Striving for Individual and Collective Excellence.
of
Inquiry
and
In Mohan Kumar Singhania and Ors v. Union of India26, the court was required to settle
the issue of challenge to Service Rules Amendment that envisaged to penalize the failure to take in
service training seriously. The Court upheld the Constitutionality of the Amendments in the light
of the Article 51A (j). Similarly in State of Uttar Pradesh v. Yamuna Shankar Mishra27 the court
ruled that the objective of writing confidential reports and making entries in the character rolls was
in consonance with the duty of bringing about standards of excellence and increasing efficiency,
integrity and devotion amongst the employee. In AIIMS Students Union v. AIIMS Management28 the
Supreme Court categorically ruled that every citizen of India is fundamentally obliged to develop
a scientific temper and a spirit of humanism. He is fundamentally duty bound to strive towards
excellence in all spheres of individual and collective activity so that the nation constantly rises to
higher levels of endeavor and achievement. State is, all the citizens placed together and hence though
Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty
of every citizen of India is the collective duty of the State.
(c) Duty to Love and Respect the State and its Institutions
The leading judicial pronouncement on the vital fundamental duty under Article 51A (a),
that requires a fine balancing between the citizen freedom of thought and action of inculcation of
values of deference for national symbols and institutions and a degree of social disciplining, came in
25 A.I.R 2006 SC 2893.
26 (1992) Suppl. 1 SCC 594.
27 (1997) 4 SCC 7.
28 A.I.R 2001 SC 3262: Also see Ashok Kumar Thakur v. Union of India 2008 (56) BLJR 1292 (OBC Reservation
Case).
42
for interpretation within less than a decade, in 1987 decision of Bijoi Emmanuel v. State of Kerala29,
where some children belonging to Jehovah Witness sect of Kerala Christians were expelled from the
school for not singing on the grounds of religious prohibition the national Anthem. But the students
showed due respect to the National Anthem standing up at the time of its recitation. The Supreme
Court held that it is true that Article 51A (a) enjoins a duty on every citizen of India to abide by
the Constitution and respect its ideals and institutions but “our tradition teaches us tolerance; our
philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Therefore,
the Court directed the authorities to re-admit the children into the school.
Finally, in State of Maharashtra & Ors v. Sarangdhar Singh Shivdass Singh Chavan30 the
Supreme Court speaking through Justice G.S. Singhvi (supplementing Justice A. K. Ganguly;s main
judgment) has underscored the objective of Article 51A as follows:
By incorporating Part IVA in the constitution, Parliament has emphasized what is obvious,
that is, every citizen must do his duty, towards the nation as well as the fellow citizens because unless
everyone does his duty, it is not possible to achieve the goals of equality enshrined in the Preamble…
What has been incorporated in the form of Part IV A was implicit in the preamble Part III and Part IV
of the Constitution, because the fundamental rights of the citizens can become meaningful only if the
state and citizens do their duty to bring about real equality amongst the people belonging to different
segments of the society.31
(v)
Would Compliance
Rights?
with
Fundamental Duties Lead
to
Augmenting
the
Human
The answer to the aforesaid preposition can both be in ‘yes’ as well as in ‘no’. it would
be yes, if the fundamental duties are rightly perceived and they are accorded a socially relevant
priority order. Right perception and relevant priority order will ultimately depend upon each
person’s understanding and commitment to the Constitutional provisions and their spirit, ideological
preferences and ones faith in democracy and the ultimate destiny of the nation. There are many
numbers of persons for whom rule of law is nothing more than a trap, for which the Constitutional
guarantees are a bunch of upper and middle-class values that are conveniently dispensable and the
constitutional functionaries as nothing more than self serving, privileged class individual. To this
category the eleven fundamental duties are only additional means of discipline and controlling the
poor and the powerless. They can never see the underlying larger theme of building and egalitarian,
non-exploitative and harmonious society in which human rights of each individual are more secure
in the scheme of fundamental duties.
The warning signals raised by Justice Singhvi in Sarangdharsingh case. “What has happened
in the last few decades has given rise to serious apprehensions whether we will be able to achieve the
objectives which were in the minds of the makers of this Constitution. The gaps between “Haves”
and “have not’s” of the society which existed even in the pre-independence India has widened to such
29
30
31
A.I.R. 1987 SC 8; Also see S.P. Gupta v. President of India A.I.R. 1982 SC 149.
(2011) 1 SCC 577.
Ibid pp. 591-92.
43
an extent that it may take many decades before even a token equality is restored. A small fraction
of the population has evolved a new value system which is totally incompatible with the values and
ideals cherished by the Indian society for centuries together. They believe in achieving their goals
without regards to the purity of means.”(p. 592) are real despairing. But we do have certain signs
of hopes too that assure us that the course correction may not be a totally lost cause. Apart from
certain welcome legislative initiatives like the Right to Information Act, 2005 and the Mahatma
Gandhi National Rural Employment Guarantee Act, 2005 that envisage to bring about transparency
in the administration and recognizing the right to employment at state expense, at least in a limited
manner, there area few Apex court rulings and a new brand of judicial activism that has displayed a
rare commitment to rule of law, equality before that law and sensitivity to the plight of the poor and
powerless. Here I shall briefly discus the facts, the issues involved, and its resolution by the Court in
three cases, which I rate as Three Stand posts of Hope as follows:
First, in State of Maharashtra v. Sarangdharsingh etc a writ petition was filed before the
Bombay High Court by an agriculturist who alleged that like many other victims of illegal money
lending business in the Vidarbha region of Maharashtra he had tried to register a complaint against
a politically connected moneylender’s family for offence under the moneylender Act, 1946, and
interconnected provisions of the Penal Code, but due to an order of the collector and the District
Superintendent of Police instead of registering and offence under section 154, the complaints were
assigned to be placed for decision before the District Anti-Moneylender Committee. The petitioner
alleged that this special procedure was devised to favour a particular moneylender and his family
at the instance of the then Chief Minister of Maharashtra. On the Bombay High Court quashing the
Collector’s and SP’s no-registration of F.I.R order and awarding the petitioner costs of Rs. 250000
to be paid by the State Government, the State appealed to the Supreme Court. In the Supreme Court
Justice A. K. Ganguly (writing for himself and Justice Singhvi) not only dismissed the appeal but
enhanced the costs to Rs. 10,00,000 (ten lakh) to be paid to Maharashtra Legal Services Authority to
be earmarked to help the cases of poor farmers. Justice Ganguly lamented in respect of Instructions
for non-registration of offences against monyleanders coming from the Chief Minister himself, in
these words:
This Court is extremely anguished to see that such an instruction could come from the Chief
Minister of a Sate which is governed under a Constitution which resolves to constitute India into
socialist, secular, democratic republic. The Chief Minister’s instructions are so incongruous and
anachronistic, being in defiance of all logic and reason, that our conscience is deeply disturbed. We
condemn the same in no uncertain terms.32
Second in Nandini Sundar v. State of Chhattisgarh33 that raises yet another aspect of exercise
of sovereign power, maybe even more controversial and disputed mainly because it involved
deciding upon some strategies and Executive actions to counter Maoist extremism in Chhattisgarh
and other Naxalite affected regions. In particular the petitioner had challenged the constitutionality
of appointment of tribal youths as Special Police Officers (SPOs) for counter-insurgency activities
32
33
Id At p. 590.
(2011) 7 SCC 547.
44
under Section 9 and Section 23 of the Chhattisgarh Police Act, 2007. The writ petitions filed in 2007
and 2009 were heard by different Benches of the Supreme Court for over a period of three years,
while the SPOs continued their counter-insurgency activities unhampered and Salwa Judum camps
operated unquestionably. It was only on July 5, 2011 that the four Part order by Justices B. Sudershan
Reddy and SS. Nijjar was pronounced. The Order came with a sense of relief not only to the petitioner
and human rights activists but also to all those who cared for the accountability of power of rule of
law, constitutionalism and human rights commitments. The order has been discussed and critiqued
in the print and visual media more for its comments on policy issues. But I see the orders and their
reasoning more from the point of view of legal limits on legitimate state power, as indicated in these
words of the order: “As we heard more about the situation in Chhattisgarh, and the justifications
sought to be pressed upon us by the respondents; it began to become clear to us that the respondents
were envisioning modes of state action that would seriously undermine constitutional values. Pp.
554-555
The order in Part II laid the legal and constitutional limits of states fight against extremists
in these words:
To pay only an honorarium to those youngsters, even though they place
themselves in equal danger, and in fact even more, than regular police officer, is
to denigrate the value of their lives. It can only be justified by a critical indeed
inhuman attitude that places little or no value on the lives of youngsters. Further,
given the poverty of these youngsters, and the feelings of rage and desire for
revenge that many suffer from, on account of their previous victimization in a
brutal social order, to engage them in activities that endanger their lives, and
exploit their dehumanized sensibilities, is to violate the dignity of human life,
and humanity. (p. 583)
“ Our Constitution provides the gridlines within which the state is to
act, both to assert such authority, and also to initiate, nurture and sustain such
authority. To transgress those gridlines is to act unlawfully, impelling the moral
and legal authority of the State and The Constitution. We in this court are not
unaware of the gravity that extremist pose to the citizens and to the state. However,
our Constitution encoding cons of human wisdom, also warns us that ends do not
justify all means, and that an essential and integral part of the ends to which the
collective power of the people may be used to achieve has to necessarily keep
the means of exercise of state power within check of constitutional bounds. To
act otherwise is to act unlawfully.” (p.585)
As a sequel to aforesaid line of reasoning the Supreme Court had little difficulty in
directing as follows;
a. Str4iking down on grounds of constitutionality the appointments of SPOs.
b. The Union of India should cease to fund direct or indirect recruitment of SPOs.
c. The State should forthwith recall all arms distributed to SPOs.
d. The State should forthwith take steps to provide security etc to SPOs.
e. The State should take steps to prevent operation of Salwa Judum and Koya
45
Commandos camps.
Third, in Ramdeo Chauhan v. Beni Kant Das and Ors,34 a youth of sixteen years and a few
days was guilty of cold blooded murder of four members of his employer’s family. He was tried
for Section 302 by a Session Court. Ramdeo filed a review petition that was dismissed, but one of
the three judges in the Bench raised doubts about his age . just then a law Professor wrote an article
raising apprehensions about a child being executed in India. The article attracted the attention of the
NHRC which made a recommendation for commutation of the death penalty. The recommendation
of NHRC became the basis for the Governor of Assam to exercise his Prerogative Power under
Article 161 to commute the death sentence of Ramdeo Chauhan to life imprisonment. The brother of
Ramdeo’s murderous assault contested the Commutation order under Article 32. In the first order the
Supreme Court set aside the commutation order passed by the Governor,. Against this Ramdeo filed
review petition. The Supreme Court agreed to entertain second review, because the case involved
several significant issues, more importantly
(a) The Jurisdiction of NHRC and,
(b) Creation of new human rights etc.
Since one of the grounds on which the Commutation Order of the Governor was struck
down was that: NHRC had no jurisdiction to interfere with judgement of the court and make
recommendation, the review order went into the matter in good detail. Justice A.K. Ganguly (writing
for Justice Aftab Alam) had the following observation that has great relevance for the powers of
NHRC and new conceptualization of Human Rights:
Keeping those broad principles in our mind if we look at Section 12(j) of the
1993 Act, we find that it confers on NHRC “such other functions as it may consider
necessary for the promotion of human rights.” It is not necessary that each and every
case relating to the violation of human rights will fit squarely within the forecorners
of 12 of the 1993 Act, for invoking jurisdiction of NHRC. One must accept that
human rights are not like edicts inscribed on a rock. They are made and unmade
on the crucible of experience and through irreversible process of human struggle
for freedom. They admit of a certain degree of fluidity. Categories of human rights,
being of infinite variety, are never really closed. That is why the residuary clause in
sub-section (j) has been so widely worded to take care of situations not covered by
sub-sections (a) to (i) of Section 12 of the 1993 Act.” (p.992)
By the aforesaid observation the Supreme Court not only negative the argument of lack
of jurisdiction of NHRC to intervene in the Ramdeo Chauhan case, but also ruled in favour of
acoording wider jurisdiction to NHRC in tune with the philosophy of broadening horizons of human
rights. Justice Ganguly fyrther ruled, in a true creative spirit, that:
Such actions will include inquiring into cases where a party has been denied the protection
of any law to which he is entitled, whether by a private party, a public institution, the Government or
34
2001 Cri. L.J.(Supreme Court) 985.
46
even the Courts of Law. We are of the opinion that if a person is entitled to benefits under a particular
law, and benefits under that law have been denied to him, it will amount to a violation of his human
rights.(p. 992, emphasis supplied)
This ruling has opened up the possibilities of extending the human rights horizons
considerably. But it will certainly cal for much greater commitment on the part of Government
factories, powerful private parties and even the courts to avoid pleading immunity to the charges of
indifference to the violations of the rule of law any more.
*****
47
Legal Protection of Geographical Indications in Kashmir: A Case
Study of Chain Stitch and Crewel Embroidery1*
Dr. Farooq Ahmad Mir2**
3***
Mir Farhatul Aen
Mir Junaid Alam4****
Abstract
Geographical Indications are community rights that have potential to reach
hitherto unreached sections in the realm of intellectual property jurisprudence.
These indications have tremendous economic and employment potential and
have proved boon for those communities who eke out their living out of them.
These indications are specific to geographical areas as nature has also critical
role in their preservation, cultivation or making. The State of Jammu and
Kashmir in India is geographically positioned in such way that it has proved
a hot bed for a variety of geographical indications that need protection under
the Geographical Indications of Goods (Registration and Protection) Act,
1999 so as to get in turn protection in other jurisdictions as well. This is not
possible unless an indication satisfies prescribed specifications. Chain Stitch
and Crewel, handmade local products, deserve recognition and protection in
India and elsewhere. An attempt has been made in this paper to make a case
for status of geographical indications of Kashmiri Chain Stitch and Crewel.
Key words: Chain Stitch, Crewel, Geographical Indications, Jammu and Kashmir,
Handicraft
Introduction
Human beings are endowed with rare intellect and creative faculties. Since the dawn of
civilisation these creative faculties have been invested to explore and expand horizons of knowledge
and information which may be in the form of a discovery or an invention. Inventions are a precipitate
of an idea which could take shape of any kind. These new ideas are manifested through various art
forms and handicraft is one such expression of idea through this art form.
1 * The present paper is the part of the major research project titled “Legal Protection of Kashmiri Handicrafts: A
Case for Geographical Indications” sanctioned by UGC. The financial assistance received for undertaking this
Project is acknowledged.
2 ** Head and Dean, Department of Law, University of Kashmir.
3 *** Research Scholar and Project Fellow, Department of Law, University of Kashmir.
4 **** Research Scholar, Department of Law, University of Kashmir.
48
Handicrafts, like antiques, appeal to the aesthetics of the observer and yet may be put to
good use. They need not necessarily serve a physical purpose; but a clear demarcation, where use and
aesthetics depart, does not exist. In fact, the hallmark of good craftsmanship is when the object serves
a “functional” purpose and yet appeals to subtler forms of intellection. The evolution of handicrafts
has utilitarian roots, unlike painting or music which predominantly cater to the intelligentsia.5
All the World over, high mountain ranges have served as refuges to remnants of ancient
peoples and civilisations, in which, comparatively unmolested, they could preserve their identity
and traditions, some till the present day.6 This holds true for the inhabitants of the State of Jammu
and Kashmir, one of the richest States of India in handicrafts, situated in extreme north of India
bordering with China in north east, Pakistan in north west and touching borders of Afghanistan in
north carving out the rout for Central Asia. The State population is aligned in such way on the basis
of culture, ethnicity, geography and religion that it is conveniently divided into three parts namely
Kashmir, Ladakh and Jammu.
Kashmir, also known as valley, is surrounded by high mountains of Korakoram Ladhak
Range, Zaskar Mountains and Pir Panjal Range that keep valley covered by snow for at least two
months and surrounded by cold chill for four months, providing an ideal environment for indoor crafts
forced by lack of sufficient alternative means of living. Kashmiris have preserved their tradition and
civilisation through their intellect.
The people of Kashmir are ingenious, industrious and preserving. The beautiful environment
of the Valley had inculcated a keen and intelligent appreciation for nature and its beauties in the minds
of the inhabitants. All this is manifested through the various decorative patterns on the handicrafts of
Kashmir.
Handicrafts are items made by hand, often with the use of simple tools, and are generally
artistic and/or traditional in nature. They include objects of utility and objects of decoration.
Handicrafts and handmade textiles constitute a large part of economy and employment
generation in Kashmir. Kashmiri crafts have since long been traded globally with market presence
and reputation in the form of recognition of style and aesthetics very distinct amongst large sections
of consumers.
Kashmir has a tremendous potential in traditional handicrafts which include Shawls, Sozani
embroidery, Khatamband, Pinjrakari (Lattice work), Walnut Wood Carving, Papier Machie etc.
These traditional handicrafts seek protection in terms of the Geographical Indications of Goods
(Registration and Protection) Act, 1999 (hereinafter referred to as the GI Act, 1999).7 Kashmiri Kani,
5
6
7
J. Sai Deepak, Protection of Traditional Handicrafts under Indian Intellectual Property Laws, Journal of Intellectual
Property Rights, Vol. 13, 2008, 197.
Hermann Goetz, Cultural Mysteries of the Western-Himalayas, Plates I-III, XXX, 9, Studies in the History and Art
of Kashmir and the Indian Himalaya, (Otto Harrassowitz. Wiesbaden), 1969, 5.
GI Act, 1999 came into force on 15th September, 2003 and provides for the registration of registered proprietors
and authorised users of goods when the qualities, reputation and characteristics of those goods are essentially due
49
Pashmina Shawls, Sozani embroidery, Khatamband, Walnut Woodcarving and Papier machie are
registered as GI and initiatives are being taken by the Craft Development Institute to develop the
techniques to demarcate the genuine difference between Kashmiri Pashmina and other worthless
imitations.
Before delving into the provisions of the law which provides for protection of traditional
handicrafts, one needs to make a case for their protection. In present day World, Geographical
Indication seems to be a better option available for the protection of traditional handicrafts. This
form of incorporeal property is considered to be the property of poor and in valley it is the poor
sector of the population which is associated with handicrafts. They are the exploited masses who do
not receive the desired share of intellect and skill. It is in this context that the present paper tries to
analyse the skill and uniqueness in the Crewel and Chain Stitch crafts. The roots of evolution of these
crafts are hidden in obscurity but an attempt has been made to analyse their historical origin and the
examination of their characteristics which make them potential candidates for GI protection.
Kashmiri Embroidery
The most celebrated of traditional handicrafts is embroidery. Embroidery is a commercial
activity, organised professionally under the technical guidance of master craftsmen.8 Whether the
flowing designs grace shawls, wall hangings, namdhas or tunics, Kashmiris are known as master
embroidery artisans. The fabric is a canvas through which the artisan’s embroidery brings to life
designs that may have handed down for centuries. The Kashmiri embroidery artisan uses his needle
or hook as a painter uses a brush to create their masterpieces.9
The beautiful environment of Kashmir naturally creates in the minds of its inhabitants a keen
and intelligent appreciation of nature and its beauties. Kashmiri works of art are really “things of
beauty” which is depicted clearly in their embroidery patterns and the kinds of art pieces they create.
Kashmiri embroidery is one such universal art. There are few facts that are related to Kashmiri
embroidery. Firstly, all Kashmiris work with their right hand. There are very few left-handed
craftsmen. All craftspeople men or women sit with their knees up. In Kashmiri this posture is called
Zangvaitth. They always sit against a wall, and have a backrest in the form of cushion or a wooden
plank set at a certain angle against the wall.10
Hookware is the most common form of embroidery in Kashmir. It is known under two
different names. viz., Chain Stitch and Crewel embroidery. It is almost the same stitch but due to
slight differences in material used, fineness of work and designs, it is known under different names.
to geographical environment including natural and human factors.
State Development Report Jammu and Kashmir, Planning Commission Government of India, New Delhi,
September, 2003, p. 306.
9
Paisley Valley – Kashmiri Fair Trade available at www.paisleyvalley.com/embroidery.html
10 Textiles of Kashmir-Kashmiri Embroidery available at www.embroidery.350.com/page-5 htm
8
50
Definition of Goods and Classification
The crafts of Chain Stitch and Crewel fall within the definition of “goods” in the GI Act,
11
1999. They fall within the purview of Class 26 of the Fourth Schedule to the GI Act, 1999.12 For
the purposes of registration of a GI or as an authorised user, goods shall be classified in the manner
specified in the Fourth Schedule. The goods mentioned in the Fourth Schedule provide for a speedy
identification of the general content of numbered international classes. They correspond to the major
content of each class and are not intended to be exhaustive in accordance with the international
classification of goods.13
Chain Stitch: A Historical Retrospect
There are a number of beliefs regarding the origin of hookware. Some believe that it has
originated in France since the hook is similar to the one used there for crochet, which is a French
craft;14 some others belief is that the shoemaker’s hook is the inspiration; some say that the craft
started almost 700 years ago in the time of Shah Hamdan.15
It is known that Chain Stitch is done on namdha felt, woollen fabric (in Kashmiri “Putto”)
and a variety of other fabrics. So it is better to trace the history of the namdha felt making in order
to get the idea of origin of Chain Stitch in Kashmir. Some historians are of the view that namdha
making has its origin in Central Asia and from that region this craft was introduced in Kashmir. One
view is that this craft originated in Central Asia during Christian era. Since its inception, Kashmir
was treated as centre for namdha industry. In the beginning of 19th century, namdha felts were used
to be incorporated into Kashmir valley from Yarkand in large quantity but namdhas which were
imported from Central Asia used to be plain and then Chain Stitch was done over them. Then they
were to be exported to other countries. From this fact we conclude that Chain Stitched namdha is a
craft which has been given by Kashmiris to the rest of the World.16
11
12
13
14
15
16
Section 2(1)(f) of the GI Act, 1999 defines “goods” as any agricultural, natural or manufactured goods or any
goods of handicraft or of industry and includes food stuff. Chain Stitch and Crewel come within goods of handicraft.
Class 26 deals with lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial
flowers. Chain Stitch and Crewel fall within embroidery.
Halsbury’s laws of India 20(2), Intellectual Property – II, Lexis Nexis Butterworths, New Delhi – 2005, pp.341,
342.
“Crochet” comes from the French word “Croc”, which means a “hook”. For details See Laura Torbet (Ed.), The
Encyclopaedia of Crafts, Vol. I, Charles Scribner’s Sons, New York, 1980, p.223.
Textiles of Kashmir-Kashmiri Embroidery available at www.embroidery.350.com/page - 5 htm
Balwant Thakur (Ed.), Koshur Encyclopaedia, Jammu and Kashmir Academy of Art, Culture and Languages,
Srinagar, 1997, p.82.
51
The Technique of Chain Stitch
Chain Stitch, as the name suggests is the continued stitch done with the hook on the Hessian
or hand woven cloth. Chain Stitch is natively known as “Jalakdozi”. Jalakdozi literally means work
that is hidden, as it is not possible to see the thread.17 The unique trait of Chain Stitching is that this
embroidery form does not involve the use of needles. Instead a locally-made hook which is known
by the name of ari is used by the craftsmen of the valley.18
The core process of Chain Stitching includes a base which is usually in white hue. The entire
body of the fabric is adorned with designs of various rich and bright colours. The stitching is done
in such a way that not a single corner of the fabric is left without motifs. The speciality of Chain
Stitching is that in every fabric of cotton, silk or wool, the base remains of one colour while the body
is formed with various circular motifs. Immediately after determination of size of a Chain Stitch rug,
the Naqash (Designer) traces the cloth. The Jalakdoz (seamster) then embroiders the cloth in two or
three ply woollen yarn. Yarn is brought from other parts of India especially from Punjab.19
Processing
Yarn: Yarn is of three types which is fetched by following numbers:No. 501, No. 512 and No. 560
The yarn is originally of two colours, viz., white natively called chit safeed and creamish
natively called zag.
Dyer: Yarn is provided to the dyer (locally called Rangur) who boils water and adds colour
in it. The yarn is dipped in the prepared colour. Then picking up by a stick, he again and again checks
the yarn till the required colour is acquired and sprinkles acid on it in order to make the colour strong.
Designer (Naqash): The process of Chain Stitch is delineated. The composition are slightly
traced with charcoal twig of pencil. The traced lines are permanently defined by being pricked through
with a small needle. Then the mixture of kerosene and black powder is prepared. The cloth intended
to receive the pattern is rubbed strongly upon a smooth plank with a piece of highly polished agate
or cornelian until it is perfectly even and regular. The pricked pattern is then stretched upon the cloth
and rubbed with fluid earlier prepared. It is slightly passed over the paper which penetrating through
the holes, transfers the outline of the underneath cloth.
Embroidery: This is executed with the ari hook. The ari is held above the fabric, while the
thread is held beneath, in the other hand. Thus from the top the thread is not visible. The craftsman
17 Jasleen Dhamija (Ed.), Asian Embroidery, Abhinav Publications, 2004, p.257
18 Chain Stitch and Crewel Furnishings of Jammu and Kashmir available at www.mapsofindia.com/JammuKashmir/P...
19 TK Feasibility Report, 2006-2007, Craft Development Institute, Srinagar, p.123.
52
passes his hook through the fabric, and catches the thread at the back, raising it to the surface in a
backwards and forwards motion so that a continuous chain is achieved. In other parts of India a small
hoop is employed, which serves to hold the area to be embroidered tight and flat, or the entire piece
to be embroidered may be spread over the frame. In Kashmir, however, these are not employed. Ari
is considerably quicker to complete than the many different kinds of needle works and thus less
expensive. It is widely practised, both for shawls as well as for jackets or gowns.
Washerman: When the embroidery on the rug is complete, it is dispatched to the washerman
(Dhobi), who washes it especially its traced mark.
Tailor: After washing, the rug is sent to a tailor who fabricates it in different articles of use.
Tailor stitches the canvas lining on the reverse side of the embroidered surface, in order to add the
durability.
Dry Cleaner: After providing a certain shape to embroidered cloth, the dry cleaner (Purzgar)
dry-cleans it and frees the fabricated article from ends and knots if any and also irons it. Then the
article is sold to a trader.
Crewel Embroidery
Kashmiri Crewel embroidery is Kashmir’s rich indigenous art, a traditional Kashmir
craftsmanship and their unique skills.20 Crewel is basically similar to Chain Stitch. It is also a Chain
Stitch done on a white background, but here the motifs, mainly stylised flowers, do not cover the
entire surface, and the background is not embroidered upon. Wool is almost invariably used in Crewel
work and colourways are not as elaborate as in Chain Stitch. This fabric is available in bolts, and is
sold by length.
Done on both wall decorators and fabrics, Crewel offers an enthralling variety of floral
designs. The furnishing done with Crewel embroidery captures the imagination of the viewer through
its vibrant stitching look.
Used chiefly for drapes and upholsteries, Crewel embroidery – beautiful bold hook work – is
done on hand-woven Dasooti (double twist) cloth by the ari.
Damascus traders are said to have brought this craft to Kashmir in the 13th century. Crewel
embroidery now has deep roots in local soil, having developed into an important craft.21
Geographical Area
20
Chain Stitch and Crewel embroidery are popular occupations in all districts of the valley.
Cashmere - Kashmiri Crewel Hand Embroidery Pashmina Shawl available at www.pashminagolden.com/special_
kash...
21 D. N. Saraf, Arts and Crafts, Jammu and Kashmir, Land People Culture, Abinav Publications, 1987 pp.73,74.
53
However, Srinagar and Budgam are the chief centres.
Designs of Chain Stitch and Crewel
A word about the Kashmiri craftsman is worth mentioning. While following traditional
designs, he also possesses a special talent for design adaptation. Happily, the School of Designs
at Srinagar has produced a number of designs of simple and functional items. There are 479 Chain
Stitch and 104 Crewel designs.22
The designs of Chain Stitch range from floral patterns to animals and human forms traced by
a designer while the craftsman embroiders in. Main designs are flowers (Poshkar) and leaves but due
to demand new designs originated like animals (jungle naqsha), hunting scenes (Shikardar,) one with
ducks (Daltarah) and so on. Main designs of Crewel are flowers and leaves which are respectively
bigger than any other embroidered designs, abstracted forms of rose, lotus, iris and many kinds of
grasses and leaves. There are bold flowers, birds, leaves and paisleys too.
Production, Employment avenues and Export of Chain Stitch/Crewel
Chain Stitch and Crewel are more labour and less capital intensive in nature, therefore, having
scope for employment generation at a large scale.23 Realising this vast potential for employment, the
Directorate of Handicrafts, J&K Government has undertaken large-scale training programmes for
the youth using their inherent skills in learning and creating while conserving the past. Moreover, as
an export oriented sector, Chain Stitch and Crewel are instrumental in foreign exchange earnings.
This makes a good economic sense to protect them legally.
Table I
Employment Generation in Chain Stitch/Crewel24
Year
2001-02
2002-03
2003-04
2004-05
Employment (in Lakhs)
Chain Stitch
Crewel
0.071
0.071
0.071
0.071
0.368
0.037
0.056
0.371
Total
0.439
0.108
0.127
0.442
22 Craft, 2003 – A Publication Devoted to Arts and Crafts of Jammu and Kashmir, Directorate of
Handicrafts, Jammu and Kashmir, p.3.
23 Economic Survey, 2010-11, Directorate of Economics and Statistics, Government of Jammu and
Kashmir, p.357.
24 Source:- Directorate of Handicrafts, Jammu and Kashmir.
2006-07
2007-08
2008-09
2009-10
54
0.071
0.073
0.089
0.89
0.372
0.37
0.382
0.382
0.443
0.443
0.471
1.272
Table II
District wise/year wise position of Chain Stitch Training Centres and Trainees
trained
Table II (A)
District wise/year wise position of Crewel Training Centres and Trainees trained25
TC = Training Centres
TT = Trainees Trained
25
Source:- Directorate of Handicrafts, Jammu and Kashmir
55
Table III
Statement showing year wise details of Chain Stitch/Crewel Production.26
* Not available
Table IV
Statement showing year wise details of Export figures of Chain Stitch/Crewel.27
Procedure for GI Registration of Chain Stitch and Crewel
GI registration is taken up usually by an organisation or association representing authority
towards equitable treatment to all the producers or those concerned with production through support
services. The application is filed in a prescribed form set forth in the Third Schedule of the GI Act,
26 Source: Directorate of Handicrafts, Jammu and Kashmir.
27 Source: 1. Local Banks dealing in Foreign Exchange
2. Corporate Head Quarters, J&K Bank.
3. Export Promotion Council for Handicrafts, New Delhi
56
1999.
The application for GI must contain a statement as to how the GI serves to designate the
goods as originating from the concerned territory of the country or region or locality of the country, in
respect of specific quality, reputation or other characteristics which are due exclusively or essentially
to the geographical environment, with its inherent natural and human factors, and the production,
processing or preparation of which takes place in such territory, region or locality. The application
must indicate the class of goods to which the GI shall apply. The geographical map of the territory
of the country or region or locality in which the goods originate or are being manufactured should be
supplied with the application. The application must also be accompanied by the particulars regarding
appearance of the GI as to whether it is comprised of the words or figurative elements or both.
Finally, there should be a statement containing such particulars of the producers of the concerned
goods; if any, proposed to be initially registered with the Registrar of GI as may be prescribed.28
The registration of a GI shall give to the registered proprietor and the authorised user the
right to obtain relief in respect of infringement of such geographical indication. It also gives the
authorised user the exclusive right to the use of the GI in relation to the goods in respect of which the
GI is registered.29
It may be noted that Chain Stitch and Crewel are not registered as GI till now. The following
steps are being mapped for the GI candidates “Chain Stitch and Crewel”:
(i) The application for the registration of Chain Stitch and Crewel shall be made in the
prescribed form GI-1A to be included in one class. The Class 26 of the Fourth Schedule is
identified as the most appropriate Class.
(ii) The application must be signed by the applicant.30 In case of the applicant being the Craft
Development Institute, Srinagar, the application is to be signed by the Director.
(iii) The application must be made in triplicate with three copies of the Statement of
case.31 An amount of rupees 5000 is to be paid in cash or sent by money order or a bank draft
or by a cheque.32 In case of payment by bank draft or cheque, the same shall be crossed and
be made payable to the Registrar at the office of the GI Registry.33
(iv) Three certified copies of the map of J&K should be supplied to indicate the geographical
location of Chain Stitch and Crewel.
Once GI registration of Chain Stitch and Crewel is obtained, further processing to secure
economic right may be taken up as per the GI Act, 1999.
28 Sec.11 of the GI Act, 1999
29 Id. Sec.21 (1).
30 Rule 13 of the Geographical Indication of Goods (Registration and Protection) Rules, 2002.
31 Sec.23 (1) of the GI Act, 1999.
32 See Schedule I to the GI Act, 1999.
33 Rule 10 (4) of the Geographical Indication of Goods (Registration and Protection) Rules,
2002.
57
Conclusion
Kashmiri Crewel and Chain Stitch are ingenious in the sense that Kashmiri craftsmanship is
depicted to the fullest through the motifs and colours used in these crafts. These crafts have received
international fame which is evident by the demand which is prevailing in the international market
for these crafts. Looking at their tremendous economic potential, it is the need of the hour to get
these crafts registered as Geographical Indications and emphasise upon their quality control. People
in almost all districts of valley are associated with this craft. They should receive the proper price of
their ingenuity and intellect and its recognition in local as well as international markets. GI will serve
this purpose to the fullest provided that the Government takes initiative to help the benefits reach the
grass root levels of Artisans who are directly associated with this craft.
*****
58
The Land Acquisition, Rehabilitation and Resettlement Bill, 2011:
An Atempt to Wipe Out the Tears of Displaced Person
Prof. (Dr.) Kamal Jeet Singh1∗
Vikram Singh2∗∗
Vijay Chaudhary3∗∗∗
“If you are to suffer, you should suffer in the interest of the nation.”
Lt. Pt.Jawahar Lal Nehru.
Introduction
Development is not a free lunch.4Unfortunately however, those who pay for the lunch rarely
eat it. The displaced people are the donors to the society of their belongings, sources of livelihood,
their social and cultural institutions as a result of society at large progresses and benefits. They sacrifice
for the sake of development of the state.5 Development is a continuous process which necessarily
involves undertaking various kinds of ventures such as dams, factories, mines, road, railways etc.
and in such projects the acquisition of land is necessary. In India the people primarily dependent on
agriculture. Any available land even in hills and forests is occupied. Therefore any project aimed at
the exploitation of land and the displacement of people which disturb their occupation and habitat.6
Population displacement causes severe socio-economic, cultural and environmental impacts
and due to this production systems are dismantled, productive assets or income sources are lost,
community structure and social, interests are weakened, ethnic violence occurs, cultural identity and
the potential for mutual help are diminished.7 The doctrine of Eminent Domain empowered the State
or Sovereign to take over any property of the subject. However, with the erosion of the monarchy,
the doctrine added two qualifications to this right. These were that:
1. The property should be acquired for a public purpose and;
1
2
3
4
5
6
7
Director, University Institute of Legal Studies, H.P.University, Avalodge Campus, Chaura Maidan,
Shimla-171004 (INDIA).
∗∗
Ph.D Scholar, Deptt. of Laws, H.P.University, Shimla-5.
∗∗∗
Ph.D Scholar, Deptt. of Laws, H.P.University, Shimla-5.
Gumaste .V, The Case for a National Policy on Rehabilitation, ASCI Journal of Management, Vol.28 (1), September,
(1998), pp.73-79.
Mishra, Sujit K., Displacement- A Major Trauma in the name of Development, Madhya Pradesh Journal of Social
sciences,Vol.7,No.1,(2002),p. 95.
Thukral,Enakshi G., Dams: For Whose Development, Social Action,Vol.38,(1988), P. 211.
Ahmed, Afroz, Rehabilitation for the Displacement- A Comprehensive Policy Approach, The Administrator, Vol.
XLIII, April-June 1998,P.47.
∗
59
2. Compensation should be paid for the acquisition of property.
Acquisition of land by the State is subject to these qualifications under the common law.
There was no mention of any rehabilitation and resettlement. In the absence of National Policy and
Legislation there is severe economic and social disruption of the lives of the oustees. In view of
this, the resettlement and rehabilitation policy for the displaced persons along with rehabilitation of
their physical, biological, socio-economic and cultural environment has emerged as a major issue in
recent years.
Indian Perspective
After independence the Central and the State Governments began to acquire land for
several infrastructure projects and also for public enterprises like steel plants. To reduce public
people’s resistance to this involuntary acquisition compensation was supplemented by the schemes
of rehabilitation and resettlement. Due to the organized resistance of the people displaced by the
dams in Maharashtra, the Government enacted a law called the Maharashtra Resettlement of Project
Displaced Person Act, in 1976. Some other States also enacted laws for the rehabilitation of the
persons displaced by land Acquisition e.g. – Madhya Pradesh, Karnataka, Orissa etc. The Ministry
of rural development of the Government of India Prepared a draft of the National Policy for the
Rehabilitation of Persons displaced as a consequence of Acquisition of Land in 1994. However, the
draft prepared by the Ministry was not presented to the Parliament. In 1998 the Ministry prepared
drafts of National Rehabilitation and Resettlement Policy for the displaced person and of Land
Acquisition, (Amendment) Bill. However, for reasons not revealed, the drafts were not submitted to
the Parliament and were practically forgotten.8
Displacement: Law and Policies
Compulsory acquisition of land for public purpose including infrastructure projects displaces
people, forcing them to give up their home, assets and means of livelihood. Apart from depriving
them of their lands, livelihood and resource- base, displacement has other traumatic psychological
and socio-cultural consequences. The Government of India recognizes the need to minimize largescale displacement to the extent possible and where displacement is inevitable, the need to handle
with utmost care and forethought issues relating to resettlement and rehabilitation of project affected
families. Accordingly, the Department of Land Resources, Ministry of Rural Development has
formulated a National Policy on Resettlement and Rehabilitation for project Affected Families, 2003.
A. National Policy
Persons, 2003
on
Resettlement
and
Rehabilitation
of
Project Affected
National Policy for Resettlement and Rehabilitation states that there is need to minimise
large scale displacement, to identify non-displacing or least-displacing alternatives; provide better
standards of living to Project Affect Families (PAFs), facilitate harmonious relationship between the
requiring body and PAFs through mutual cooperation and to handle the issues related to resettlement
8
Kulkarni, S., Comments on the Rehabilitation and Resettlement Bill, 2007. For details visit www.doccentre.net
60
and rehabilitation with utmost care.9 The Ministry of Rural Development is the nodal ministry in the
Union government to administer the central legislation on land acquisition. The Department of Land
Resources, Ministry of Rural Development which has formulated National Policy on Resettlement
and Rehabilitation for Project Affected Family, 2003 has been replaced by new National Policy on
Resettlement and Rehabilitation, 2007.
B. National Policy on Resettlement and Rehabilitation, 2007
Ministry again came up with a new National Resettlement and Rehabilitation Policy that
came into operation on 31st Oct. 2007. This incorporates a number of points made in the earlier
resolutions. Two major points mentioned in the objectives are:
1) To provide a better standard of living, making concerted efforts for providing
sustainable income to the affected families and;
2) To integrate rehabilitation concerns into development planning and implementations
process.
Benefits under the policy are available to all affected persons and families whose land,
property or livelihood is adversely affected by land acquisition or by involuntary displacement
of a permanent nature due to any other reason, such as natural calamities etc. The policy will be
applicable to all such cases irrespective of the number of people involved.10 Many provisions in the
statement are included in the Rehabilitation and Resettlement Bill, 2007.
C. The Rehabilitation and Resettlement Bill, 2007
Since the inception of the Land Acquisition Act, 1894, there is no other statutory backing to
resettlement and rehabilitation. The statement of objects and reasons of R & R Bill, 2007 provides
statutory backing to them and provide for Social Impact Assessment making of scheme and plans well
defined and rehabilitation and resettlement benefits for the affected families. The statement further
states in brief that this Bill will provide for the basic minimum that all projects leading to involuntary
displacement must address the grievances of the affected persons. The rehabilitation process would
augment income levels and enrich quality of life of the displaced person, covering rebuilding sociocultural relationships, capacity building and provisions of public health and community services.
Adequate safeguards have been proposed for protecting rights of vulnerable sections of the displaced
persons.11 However, the Bill lapsed due to dissolution of the 14th Lok Sabha.
D. The Rehabilitation and Resettlement Bill, 2009
As thousands of small wars against land acquisition rage across the country, propose
amendments to Land Acquisition Act and a new Resettlement and Rehabilitation Bill, 2009 again
was introduced in the Parliament and awaits final consideration by the Parliament.12 The Resettlement
and Rehabilitation Bill, undoubtly contains progressive measures for displaced people and will give
9 See, National Policy on Resettlement and Rehabilitation of Project Affected Persons, 2003.
10 See, National Policy on Resettlement and Rehabilitation, 2007.
11 See, The Rehabilitation and Resettlement Bill, 2007.
12 The Rehabilitation and Resettlement Bill, 2009 as Passed by Lok Sabha on 25th Feb.2009.
61
rights the status of law rather than policy, which will help to strengthen their enforcement. In a
significant move, the Bill, recognises the rights of landless and artisans to compensation rather than
just landowners.
E. Rationalising Dispossession: The Land Acquisition Rehabilitation
Resettlement Bill,2011
and
Land Acquisition, Rehabilitation and Resettlement Bill in India is a much awaited bill
for Land acquisition reforms and rehabilitation for the development projects in India. The bill
was introduced in Lok Sabha in India on September 7, 2011. The bill will be central legislation
in India for the rehabilitation and resettlement of families affected by land acquisitions. The Land
Acquisition, Rehabilitation and Resettlement, 2011 Bill is also known as LARR Bill 2011. The Bill
has 107 clauses. It is currently in public domain and India’s parliament for review, as Bill number 77
of 2011. This bill has not yet been tabled in the parliament of India. It is under review for revisions.
Some important provisions of this bill are discussed as under:-
a. Introduction
i)
The provisions of this Act relating to land acquisition, rehabilitation and
resettlement, shall apply, when the appropriate Government acquires land, for its
own use, hold and control; or with the purpose to transfer it for the use of private
companies for public purpose (including Public Private Partnership projects but
not including national or state highway projects); or on the request of private
companies for immediate and declared use by such companies of land for public
purposes.13 Thus there is no necessity of any notification to cover any specific
project.
ii)
“Affected family” under this Bill includes a family whose land or other
immovable property has been acquired or who have been permanently displaced
from their land or immovable property or a family which does not own any land
but a member or members of such family may be agricultural labourers, tenants,
share-croppers or artisans or may be working in the affected area for three years
prior to the acquisition of the land, whose primary source of livelihood stand
affected by the acquisition of land.14
b. Social Impact Assessment of project
i)
Whenever the appropriate Government intends to acquire land for a public
purpose, it shall carry out a Social Impact Assessment study in consultation with
the Gram Sabha at habitation level or equivalent body in urban areas, in the
affected area in such manner and within such time as may be prescribed. The
Social Impact Assessment shall include assessment of nature of public interest
involved, estimation of affected families and the number of families among them
likely to be displaced, study of socio-economic impact upon the families residing
in the adjoining area of the land acquired, study of social impact from the project,
and the nature and cost of addressing them and their impact on the overall costs
13
14
For details See, Clause 2, The Land Acquisition, Rehabilitation and Resettlement Bill, 2011.
For details See, Clause 3, The Land Acquisition, Rehabilitation and Resettlement Bill, 2011.
ii)
iii)
62
of the project and benefits vis-à-vis the social and environmental costs etc.15
According to the Section 4(3) of the Bill While undertaking a Social Impact
Assessment study under sub-section (1), the appropriate Government shall,
amongst other things, take into consideration the impact that the project is likely
to have on various components such as public and community properties, assets
and infrastructure particularly roads, public transport, drainage, sanitation,
sources of drinking water, sources of water for cattle, community ponds, grazing
land, plantations, public utilities such as post offices, fair price shops, food
storage godowns, electricity supply, health care facilities, schools and educational
or training facilities, anganwadis, children parks, places of worship, land for
traditional tribal institutions and burial and cremation grounds.16
Section 7 of the Land Acquisition, Rehabilitation and Resettlement Bill provides
that the appropriate Government shall ensure that the Social Impact Assessment
report is evaluated by an independent multi-disciplinary expert group, as may
be constituted by it including two non-official social scientists, two experts on
rehabilitation, a technical expert in the subject relating to the project.17 It is also
provided in this clause that if the expert group is of the opinion that the project
does not serve the stated public purpose or the project is not in the larger public
interest then it shall make a recommendation to the effect that the project shall
be abandoned forthwith and no further steps to acquire the land will be initiated
in respect of the same.
c. Authorities for Rehabilitation and Resettlement
i)
The Central Government shall constitute a National Monitoring Committee for
reviewing and monitoring the implementation of rehabilitation and resettlement
schemes or plans under this Act. The Committee may, besides having
representation of the concerned Ministries and Departments of the Central and
State Governments, associate with it eminent experts from the relevant fields.18
The States and Union territories shall provide all the relevant information on
the matters covered under this Act, to the National Monitoring Committee in a
regular and timely manner, and also as and when required.19
ii)
The appropriate Government shall, for the purpose of providing speedy disposal
of disputes relating to land acquisition, compensation, rehabilitation and
resettlement, establish, by notification, one or more Authorities to be known as
“the Land Acquisition, Rehabilitation and Resettlement Authority” to exercise
the jurisdiction, powers and authority conferred on it by or under this Act.20
15 Clause 4, The Land Acquisition, Rehabilitation and Resettlement Bill, 2011.
16 Clause 4(3), The Land Acquisition, Rehabilitation and Resettlement Bill, 2011.
iii)
63
The Authority shall, for the purposes of its functions under this Act, shall have
the same powers as are vested in a civil court under the Code of Civil Procedure,
1908 in respect of the following matters, namely, summoning and enforcing the
attendance of any person and examining him on oath; discovery and production
of any document or other material object producible as evidence; receiving
evidence on affidavits etc.21
iv)
The appropriate Government or a Requiring Body or any person aggrieved by
the Award passed by an Authority under section 63 may file an appeal to the High
Court within sixty days from the date of Award.22
d. Apportionment of Compensation
i)
When there are several persons interested, if such persons agree in the
apportionment of the compensation, the particulars of such apportionment
shall be specified in the award, and as between such persons the award shall be
conclusive evidence of the correctness of the apportionment.23 When the amount
of compensation has been settled, if any dispute arises as to the apportionment of
the same or any part thereof, or as to the persons to whom the same or any part
thereof is payable, the Collector may refer such disputes to the Authority.24
e. Temporary occupation of land
i)
Whenever it appears to the appropriate Government that the temporary occupation
and use of any waste or arable land are needed for any public purpose, or for a
company, the appropriate Government may direct the Collector to procure the
occupation and use of the same for such terms as it shall think fit, not exceeding
three years from the commencement of such occupation. The Collector shall
thereupon give notice in writing to the person interested in such land of the
purpose for which the same is needed, and shall, for the occupation and use
thereof for such term as aforesaid, and for the materials (if any) to be taken
there from, pay to them such compensation, either in a gross sum of money,
or by monthly or other periodical payments, as shall be agreed upon in writing
between him and such persons respectively.25
f. Offences and Penalties
i)
If a person, in connection with a requirement or direction under this Act,
provides any information or produces any document that the person knows is
false or misleading, he shall be liable to be punished with imprisonment of either
description for a term which may extend to one month, or with fine which may
extend to one lakh rupees, or with both.26
ii)
If any person contravenes any of the provisions relating to payment of
26 Clause 78, The Land Acquisition, Rehabilitation and Resettlement Bill, 2011
64
compensation or rehabilitation and resettlement, every such person shall be
liable to a punishment of six months which may extend to three years or with
fine or with both.27
g. Miscellaneous
i)
The appropriate Government shall be at liberty to withdraw from the acquisitionof
any land of which possession has not been taken. Whenever the appropriate
Government withdraws from any such acquisition, the Collector shall determine
the amount of compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings there under, and shall pay such
amount to the person interested, together with all costs reasonably incurred by
him in the prosecution of the proceedings under this Act relating to the said
land.28
ii)
When any land or part thereof, acquired under this Act remains unutilised for a
period of ten years from the date of taking over the possession, the same shall
return to the Land Bank of the appropriate Government by reversion.29
Shortcomings
The proposed Bill is an effort to control and compensate the displaced families, but in its
current form suffers with many loopholes / shortcomings which ultimately fail its very objective.
Some of them are as follows:
i.
ii.
iii.
iv.
It is heavily loaded in favour of land owners and ignores the needs of poor Indians
who need affordable housing, impoverished families who need affordable hospitals,
schools, employment opportunities and infrastructure.
LARR 2011 places no limit on total compensation or number of claimants; nor does
it place any statute of limitations on claims or claimants.
The bill fails to adequately define “public purpose”. The current definition is
interpreted vaguely. In leaving public purpose too vague and porous, it would ensure
that land acquisition will remain hostage to politics and all kinds of disputes.
The bill, if passed, will increase the cost of acquisition of land to unrealistic level.
It will be almost impossible to acquire 50-acre or 100-acre land at one place for
planned development.
LARR 2011 Bill’s sections 97, 98 and 99 are incongruous with other laws of India in
details and intent. Section 98, for example, says that the provisions of the Bill shall not apply to
the enactments relating to land acquisition specified in the Fourth Schedule of the Bill. According
to Indian Legal Code, the Fourth Schedule referred to by LARR 2011 Bill, consists of 16 bills,
65
including the ancient monuments and archaeological sites and remains Act, 1958, the atomic energy
Act, 1962, the special economic zones Act, 2005, the cantonments Act, 2006, the railways Act, 1989
amongst others. Laws can not be in conflict with each other. LARR Bill carves outs through Sections
97, 98 and 99 add confusion, offering a means for numerous citizen petitions, law suits and judicial
activism. The LARR 2011 Bill thus fails to deliver on the goals motivating it.
Concluding Observations
Resettlement and rehabilitation issues need to be taken more seriously than they have been
in the past. Rehabilitation is a delicate human task requiring a good deal of understanding and
dedication. The present Land Acquisition, Rehabilitation and Resettlement Bill, 2011 will provide
a comprehensive legal framework for compensation, resettlement and various other rehabilitation
benefits. Such law would discourage forced displacement and minimise adverse impacts on people,
habitats, environment, food security and bio-diversity. The law will ensure that all possible option
of more barren, less fertile and waste land has been explored before acquiring agricultural land. It
will provide for a just, timely compensation, resettlement and rehabilitation package through people
participation and transparency process.
Therefore, the need of the hour is for a comprehensive and legally binding policy on the
subject, along with the officials who are motivated and genuinely interested in implementation of
such policy. The one will be ineffective without the other. It is of grave concern that too many
discretionary powers vested with the Government, the numerous conditions associated with
rehabilitation and resettlement and the enforceability of various provisions all reduce the proposed
legislation to again a tool in the hand of government for acquisition. Thus what is needed today is not
merely a national rehabilitation policy but also a national displacement policy along with a codified
law on resettlement and rehabilitation.
*****
66
Coastal Ecology and Coastal Zone Management: One Room Many
Doors
Dr. Jai S. Singh1*
Abstract
Environmental jurisprudence is growing year by year. New dimensions
of legal control are added and new challenges are open before legislature and
courts. Protection and promotion of coastal ecology and marine environment are
big challenges before the world community. Coastal States have a special interest
in protecting their coastlines. Due to unique peculiar characteristics, the costal
zone is a meeting point for land, sea and inland waters. Coastal zones have played
important role in the evolution of culture and civilizations. In the past human contact
developed across sea. With the march of time, it converted into a battleground for
power and foreign domination. The present paper deals with coastal ecology and
marine environment in India. The Constitution of India is probably first in the
world which makes provision for the protection of environment. Article 48 deals
with protection and improvement of environment. The Ministry of Environment and
Forests undertook an exercise to issue the Coastal Regulation Zone Notification,
1991 to protect and preserve coastal ecology and marine environment. In a number
of decisions the Supreme Court of India has made beautiful observations regarding
the preservation protection and promotion of marine environment. In the leading
case of S. Jagannath v. Union of India, 2a Division Bench of the Supreme Court
stated that sea coast and beaches are gift of nature and any activity polluting the
same cannot be permitted. Further, the Court interpreted the concept of ‘sustainable
development’ and expressly recognized ‘the Precautionary Principle’ and ‘the
Polluter Pays principle’ as part of the environmental jurisprudence of the land
and expressly included in the expression ‘life and personal liberty’ under Article
21 of the Constitution. It was stated that at universal level, coastal pollution is an
emerging problem. India is already suffering from a serious environmental problem.
The Court issued a number of directions to be followed by the Government of India
and Governments of Coastal States. It was directed that any violation or noncompliance of the directions of the Apex Court shall attract the provisions of the
Contempt of Courts Act, 1971 in addition.
Introduction
Water, water, everywhere, And all the boards did shrink;
Water, water, everywhere, Nor any drop to drink.
The very deep did rot: O Christ!
1
2
Associate Professor, Faculty of Law, University of Allahabad, Allahabad, U.P. India.
(1997) 2 SCC 87.
*
67
That ever this should be!
Yea, slimy things did crawl with legs
Upon the slimy seas.
-Samuel Taylor Coleridge
Today interaction of human beings with nature is so extensive that the environmental issues
have assumed such proportions as to affect entire humanity. There are the grave consequences of
the pollution of water and air. Therefore, it is required to take proper and effective actions for the
protection and promotion of the natural environment. Further, global warming and arising of sea
level is another challenging problem before the world community. Coastal ecology and marine
environment has created big problem for the survival of entire earth creatures.
Coastal States have a special interest in protecting and protecting their coastlines. Due to
unique peculiar characteristics, the costal zone is a meeting point for land, sea and inland waters.
Coastal zones have played important role in the evolution of culture and civilizations. In the past,
human contact developed across sea. With the march of time, it converted into a battleground for
power and foreign domination. A learned scholar of International Law and Maritime Law Professor
R.P.Anand has made beautiful observations in this regard:
The bulk and essence of maritime law during the last more than two centuries
can be summed up in the simple phrase, “Freedom of the Seas”. What it meant was
that beyond a limited area of territorial sea where the coastal state exercised sovereign
jurisdiction, an area which was deemed essential for its security and protection of its
other vital interests, the vast areas of the ocean were open and free which could not be
appropriated and must not be controlled by any one. In these areas of what were called
the ‘high seas’, all states enjoyed—or at least until recently were supposed to enjoy as
Article 2 of the 1958 Convention on the High Seas declared, freedoms of unobstructed
navigation, uncontrolled fishing, right to lay down and maintain submarine cables and
pipelines, and freedom to fly over, and such other undefined freedoms as they might like
to exercise with due regard to the similar rights and freedoms of others.3
It is significant to protect, preserve and conserve biosphere. But, equally important is the
protection, preservation and conservation of marine ecosystem. There is yet little knowledge about
this ecosystem. However, it is in no way less significant. Therefore, due attention must be paid
towards the protection and preservation of marine environment.
Global and international efforts for the protection, conservation and preservation of the global
environment started with the convening of the Stockholm Conference on Human Environment held
in 1972. The journey from the Stockholm Conference to the Copenhagen Climate Summit, 2009 and
Cancun Climate Summit, 2010 accepted the fundamental principle that all human beings are entitled
to a healthy and productive life in harmony with natural environment.
3
The present paper talks about costal ecology and marine environment in India. Further, it
Professor R.P.Anand, “Law of Sea in Historical Perspective” in conference papers of the Fifth International
Conference on International Environmental Law, 8-9 December 2007, organized by the Indian Society of
International Law, New Delhi, at pp. 1023-1024.at p.1023.
68
refers to one of the big challenges that the nation has to face in the process of development, namely,
conservation of forests and protection of wildlife and preservation of marine environment.
The United Nations Conference On The Human Environment, 1972
To protect and promote environment at international level, a declaration was adopted in
1972. The Declaration adopted by the United Nations Conference on the Human Environment took
place at Stockholm from 5th to 16th of June, 19724. It reads thus:
1. Man is both creature and molder of his environment, which gives him physical
sustenance and affords him the opportunity for intellectual, moral, social and spiritual
growth. In the long and tortuous evolution of the human race on this planet, a stage
has been reached when through the rapid acceleration of science and technology,
man has acquired the power, to transform his environment in countless ways and
on an unprecedented scale. Both aspects of man’s environment, the natural and the
man- made, are essential to his well- being and to the enjoyment of basic human
rights even the right to life itself.
2. The protection and improvement of the human environment is a major issue
which affects the well-being of peoples and economic development throughout the
world; it is the urgent desire of the peoples of the whole world and the duty of all
Governments...
To achieve this environmental goal the Proclamation required the acceptance of responsibility
by citizens and communities and by enterprises and institutions at every level, all sharing equitably
in common efforts…
These are only some of the statements of principles proclaimed by the Stockholm Conference.5
Principle 7 of the Declaration directs the States to take all possible steps to prevent pollution of the
seas. The provisions of the principle may be read as follows:States shall take all possible steps to prevent pollution of the seas by substances
that are liable to create hazards to human health, to harm living resources and marine
life; to damage amenities or to interfere with other legitimate uses of the seas.
The Provisons For The Protection And Promotion The Marine Environment In
International Conventions On The Law Of Sea
The International Law and International Conventions have made elaborate provisions for
protection and preservation of the marine environment.6 The Convention on the High Seas, 1958 has
4
5
6
In this Proclamation, the Indian delegation led by the then Prime Minister of India Mrs. Indira Gandhi took a leading
role.
(Vide Lal’s Commentaries on Water and Air Pollution Laws (2nd Edn.), at 6-7), as quoted by Venkataramiah, J., in
case of M.C. Mehta v. Union of India, (1987) 4 SCC 463 at 467-469.
J. Barros and D.M. Johnston, The International Law of Pollution (Macmillan, London), 1974. pp. 299-293; D.M.
Johnston (Ed., The Environment Law of the Sea (1981); J. W. Kindt Marine Pollution and the Law of the Sea
69
made provisions with the object of prevention of pollution of the seas.7
The United Nations Convention on the Law of Sea, 1982 has made elaborate provisions in
Part XII on the protection and preservation of the marine environment. It is one of the longest parts
in the Convention, having Articles192-237. It lays down generally agreed provisions on this aspect.
The Convention expressly states that the “States have the obligation to protect and preserve the
marine environment”8 while pursuing their sovereign right to exploit their natural.9 It is an obligation
of the States to prevent, reduce, and control pollution of marine environment individually and jointly
at a global, and, as appropriate, on regional levels.10 Article 194 (1) specifically lays down as follows:
States shall take individually or jointly as appropriate, all measures consistent
with this Convention that are necessary to prevent, reduce and control pollution of the
marine environment from any source, using for this purpose the best practicable means
at their disposal and in accordance with their capabilities, and they shall endeavour to
harmonize their policies in this connection.
Thus, the Convention on the Law of Sea, 1982 has adopted a positive approach for protection
and preservation of seas from pollution, advancement of human knowledge about the added value of
sea for betterment of human life through marine research and for making all coastal States and users
of the sea to acquire international standards for keeping appropriate marine environment by easily
acquiring of marine technology for that purpose. In the ‘Area’ it is an obligation of the Authority to
ensure effective protection and preservation for the marine environment from harmful effects which
may arise from its activities. It has to take effective measures for the prevention, reduction and
control of pollution and other hazards to the marine environment, including the coastline. Further, it
has also to carry out its activities in the Area with reasonable regard for the marine environment and
the protection of human life. It is required to synchronize its programmes with the ecological balance
of the marine environment. The Authority may carry out marine scientific research concerning the
Area and its resources, and may enter into contracts for that purpose. However, marine scientific
research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of
mankind as a whole, in accordance with the provision laid down in Part XIII of the 1982 Convention.
It shall also transfer appropriate technology to developing States as might be sought and be necessary
for protection of marine environment.11
Provisions For The Protection And Promotion Of Environment Under The Constitution
Of India
The Constitution of India is probably first in the world which makes provision for the
(1986), R. Soni, Control of Marine Pollution in International Law (1985); R..A. Malviya, Environment Pollution
and its Control under International Law (Chugh Publications, Allahabad), 1987.
7 Articles 24 and 25 of the Convention on the High Seas, 1958.
8 Article 192 of the International Convention on the Law of Sea, 1982.
9 Ibid., Article 193.
10 Ibid., Articles 194-201.
11 Ibid., Articles 143-147.
70
protection of environment. Article 48 deals with protection and improvement of environment. It
lays down, “The State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country.”
Article 51-A imposes as one of the fundamental duties on every citizen, the duty to protect
and improve the natural environment. The provisions of the Article provide, “It shall be the duty of
every citizen of India to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures.”
Article 47 imposes duty upon the State to improve public health. It states, “The State shall
regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties, and, in particular, the State shall
endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.”
Article 21 of the Constitution of India guarantees protection of life and personal liberty.
Every person has the right to protect his life and personal liberty. He can not be deprived
of his right except according to procedure established by law. “The Precautionary Principle”
and “the Polluter Pays Principle” have been accepted as part of the law of the land. It provides, “No
person shall be deprived of his life or personal liberty except according to procedure established by
law.”
Part IV of the Constitution dealing with Directive Principle of State Policy lays down
provisions for the protection and promotion of environment. In order to achieve the constitutional
and international obligations, the Parliament has made statutory provisions for the protection and
preservation of natural environment.
Statutory Proisions Enacted To Protect And Preserve The Environment.
The Water (Prevention and Control of Pollution) Act, 1974
Recognizing the importance of the prevention and control of pollution of water for human
existence Parliament has passed the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of
1974). Its object is to provide for the prevention and control of water pollution and the maintaining of
restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes
aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning
to such Boards powers and functions relating thereto and for matters connected therewith
Section 2(j) of the Act defines the expression stream as including river, water course whether
flowing or for the time being dry, inland water whether natural or artificial, sub-terrene waters, sea
or tidal waters to such extent or as the case may be to such point as the State Government may by
notification in the Official Gazette, specify in that behalf.
Section 16 of the Act sets out the functions of the Central Board. Section 17 lays down
71
the functions of the State Board. The functions of the Central Board are primarily advisory and
supervisory in character. The Central Board is also required to advise the Central Government on
any matter concerning the prevention and control of water pollution and to co-ordinate the activities
of the State Boards.
The Environment (Protection) Act, 1986
Parliament has also passed the Environment (Protection) Act, 1986 (29 of 1986) which has
been brought into force throughout India with effect from Nov. 19, 1986. The Act was enacted as a
result of the decisions taken at the United Nations Conference on the Human Environment held at
Stockholm in June, 1972 in which India participated. The Statement of objects and reason to the Act
lays down as under:The decline in environmental quality has been evidenced by increasing
pollution, loss of vegetal cover and biological diversity, excessive concentrations of
harmful chemicals in the ambient atmosphere and in food chains, growing risks of
environmental accidents and threats to life support systems. The world community’s
resolve to protect and enhance the environmental quality, found expression in the
decisions taken at the United Nations Conference on the Human Environment held
in Stockholm in June, 1972. Government of India participated in the Conference
and strongly voiced the environmental concerns. While several measures have been
taken for environmental protection both before and after the Conference, the need for
a general legislation further to implement the decisions of the conference has become
increasingly evident.
Section 3 deals with power of Central Government to take measures to protect and improve
environment.
Section 15 of the Act lays down contravention of the provisions of the said Act punishable
with imprisonment for a term which may extend to five years or with fine which may extend to one
lakh rupees or with both. It is submitted that the Environment (Protection) Act, 1986 (EPA) is
a watershed. The law generated a plethora of rules and regulations, and facilitated delegation of
powers of the Central Government to the various agencies for Centre and state.12
Further, there are other legislations like Wild Life Protection Act, 1972, Forest Conservation
Act, 1980 and Fisheries Act, 1987 which lay down useful provisions for environment protection and
pollution control.
Letter of the then Prime Minister Mrs. Indira Gandhi
States (November, 1981)
to the
Chief Ministers
of
Coastal
In order to protect the ecological balance in the coastal areas, the then Prime Minister Mrs.
12
. P. Leelakrishnan, Environmental Law in India, (LexisNexis Butterworths Wadhwa), Nagpur at 1.
72
Indira Gandhi had have written a letter in November 1981 to the Chief Ministers of coastal States. In
this letter she requested to the Chief Ministers of coastal States as under:
The degradation and misutilization of beaches in the coastal States is worrying
as the beaches have aesthetic and environmental value as well as other values. They
have to be kept clear of all activities at least up to 500 metres from the water at the
maximum high tide. If the area is vulnerable to erosion, suitable trees and plants have
to be planted on the beaches without marring their beauty. Beaches must be kept free
from all kinds of artificial development. Pollution from industrial and town wastes must
also be avoided totally.
Thus, in her letter the Prime Minister Mrs. Indira Gandhi requested to the
Governments of Coastal States to keep beaches free from all kinds of artificial development
and to avoid totally pollution from industrial and town wastes.
The Ministry of Environmental and Forests has promulgated Environmental Guidelines for
Development of Beaches and Coastal Areas in July, 1983
The Ministry of Environmental and Forests has set up working groups to prepare
environmental guidelines for development of beaches and coastal areas in 1982. The Ministry
promulgated environmental guidelines for beaches in July, 1983 which, inter alia, stated:
The traditional use of sea water as a dump site from our land-derived wastes
have increased the pollution loads of sea and reduced its development potentials
including the economic support it provides to people living nearby. Degradation and
misutilization of beaches are affecting the aesthetic and environmental loss. These could
be avoided through prudent coastal development and management based on assessment
of ecological values and potential damages from coastal developments.
These environmental guidelines for beaches stated that “adverse direct impact” of
development activities was possible within 500 metres from the high water mark or beyond two
kilometres form it. The example which was given was that the sand- dunes and vegetation clearing,
high density construction etc. along the coast could alter the ecological system of the area.
The environment guidelines for the development of beaches, inter alia, directed the
concerned State Governments to prepare a status report on the obtaining situation of the coastal
areas, as a pre-requisite to environmental management of the area.
Further, such a status report was required to be followed by a master plan identifying the
areas required for conservation, preservation and development and other activities. A master plan
so prepared would ensure a scientific assessment and development of the coastline and this would
ultimately ensure the preservation and enforcement of the coastal eco-system.
73
The Coastal Regulation Zone Notification, 1991
The Ministry of Environment and Forests undertook an exercise regarding the protection
and development of the coastal areas. It issued the Coastal Regulation Zone Notification on February
19, 1991.
By this Notification, Government declared the coastal stretches of seas, bays, estuaries,
creeks, rivers and backwaters which were influenced by tidal action (in the landward side) up to 500
metres from the High Tide Line and the land between Low Tide Line and HTL as Regulation Zones.
Regarding this area, it imposed, with effect from the date of the said Notification, various restrictions
on the setting up and expansion of industries, operation or processes etc. in the said Regulation
Zones. It was clarified that for the purposes of the main Notification, HTL was defined as the line up
to which the highest high tide reaches at spring times.13.
13
. The general characteristic of the main Notification are that a number of activities are declared as prohibited in the
Regulation Zones. These prohibitions read as under:
(i) setting up of new industries and expansion of existing industries, except those directly related to water
front or directly needing foreshore facilities;
(ii) manufacture or handling or storage or disposal of hazardous substances as specified in the Notifications
of the Government of India in the Ministry of Environment and Forests No. S.O. 594 (E) dated
28.7.1989, S.O. 966 (E) dated 27.11.1989 and GSR 1037 (E) dated 5.12.1989;
(iii) setting up and expansion of fish processing units including warehousing (excluding hatchery and
natural fish drying permitted areas);
(iv) setting up and expansion of units mechanisms for disposal of wastes and effluents, except facilities
required for discharging treated effluents into the water course with approval under the Water
(Prevention and Control of Pollution) Act, 1974 except for storm water drains;
(v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements;
schemes shall be implemented by the authorities concerned for phasing out the existing practices, if
any, within a reasonable time period not exceeding three years from the date of this Notification;
(vi) dumping of city or town wastes for the purposes of land filling or otherwise; the existing practice,
if any, shall be phased out within a reasonable time not exceeding three years from the date of this
Notification;
(vii) dumping of ash or any wastes from thermal power stations;
(viii) land reclamation, bunding or disturbing the natural course of sea water with similar obstructions,
except those required for control of coastal erosion and maintenance or clearing of waterways,
channels and ports and for prevention of sandbars and also except for tidal regulators, storm water
drains and structures for prevention of salinity ingress and for sweet water recharge;
(ix) mining of sands, rocks and other substrata materials, except those rare minerals not available outside
the CRZ areas;
(x) harvesting or drawal of ground water and construction of mechanisms therefore, within 200 m of
HTL; in the 200 m to 500 m zone it shall be permitted only when done manually through ordinary
wells for drinking, horticulture, agriculture and fisheries;
(xi) construction activities in ecologically sensitive areas as specified in Annexure-I of this Notification;
(xii) any construction activity between the Low Tide Line and High Tide Line except facilities for carrying
treated effluents and wastes water discharges into the sea, facilities for carrying sea water for cooling
purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this
Notification.
(xiii) dressing or altering of sand- dunes, hills, natural features including landscape changes, 50 per cent of
74
Annexure I consists of Clause 6 (1) which relates to the classification of coastal regulation
zone. The norms for regulation activities in the said zones are provided by clause 6 (2) for regulating
development activities. The Coastal stretches within 500 metres of HTL of the landward side are
classified under Clause 6 (1) into four categories, which may be read as under:
(a) Category I (CRZ-I) includes the areas that are ecologically sensitive and
important, such as national parks/marine parks, sanctuaries etc., areas rich in genetic
diversity, areas likely to be inundated due to rise in sea level consequent upon global
warming and such other areas as have been declared by the Central Government or
the authorities concerned at the State/Union Territory level from time to time.
In addition thereto, CRZ I also contains the area between the Low Tide Line
and the High Tide Line.
(b) Category II (CRZ II) contains the areas that have already been developed up to
or close to the shore line. This is the area which is within the municipal limits or
in other legally designated urban areas which is already substantially built up and
which has been provided with drainage and approach roads and other infrastructure
facilities, such as water supply and sewerage mains.
(c) Category III (CRZ III) is the area which was originally undisturbed and includes
those areas which do not belong either to Category I or Category II. CRZ III
includes coastal zone in the rural areas (developed and undeveloped) and also areas
within the municipal limits or in other legally designated urban areas which are not
substantially built up.
(d) Category IV (CRZ IV) contains the coastal stretches in the Andaman & Nicobar
Lakshadweep and small islands except those designated as CRZ I, CRZ II or CRZ
III.
Clause 6 (2) of Annexure I provides norms for regulation of activities in CRZ I, II, III and IV.
With regard to CRZ I, the norms for regulation of activities do not permit new construction within
500 metres of the HTL. Furthermore, practically, no construction activity is allowed between the LTL
and HTL. The norms for regulation of activities in CRZ II relate to construction or reconstruction of
the buildings within the said zone.
Regarding CRZ III, the norms for regulation of activities, inter alia, provide that the area up
to 200 metres from the HTL is to be earmarked as ‘No Development Zone’. The only exception is
that there can be repairs of existing authorised structures but, the permissible activity in this zone is
for its use for agriculture, horticulture, gardens, pastures etc.
the plot size and the total height of construction shall not exceed 9 metres.
75
Further, the norms provide for development of vacant plots between 200 and 500 metres of
High Tide Line in designated areas of CRZ- III with prior approval of the Ministry of Environment
and Forests permitted for construction of hotels/beach resorts for temporary occupation of tourists/
visitors subject to the conditions as stipulated in the guidelines in Annexure- II.
In CRZ IV also, detailed norms for regulation of activities are provided in the said Clause
6 (2) of Annexure I.
Annexure II to the Coastal Regulation Zone Notification, 1991 provides the guidelines for
development of beach resorts/hotels in the designated area of CRZ-III for temporary occupation of
tourists/visitors. The vacant area beyond 200 metres in the landward side, even if it is within 500
metres of the HTL can be used, after obtaining permission, for construction of beach resorts for
tourists/visitors. There was no provision for allowing any fresh construction within 200 metres of the
HTL or within the LTL and HTL. Clause 7 (1) of the main Notification which comes under Annexure
II contains various conditions which have to be fulfilled before approval can be granted by the
Ministry of Environment and Forests for the construction of beach resorts/hotels in the designated
area of CRZ-III.
Reports Of The Central Board For The Prevention And Control Of Water Pollution,
1982”, 1986-87 And 1995
The Central Board for the Prevention and Control of Water Pollution in its report “coastal
pollution control series COPOCS/1/1982” has made significant recommendations which may be
read as follows:The mangrove forest at Pichavaram, the bird sanctuary and forest areas at Point
Calimere and Coral reef at Mandapam are ecologically sensitive areas warranting
special watch and preservation.
Recreational coastal portions of some sectors of the stretch under investigation
such as Marina and Elliot Beaches at Madras, Mahabalipuram, Pondicherry beach at
Pondicherry and Poompuhar at the confluence of the River Cauvery with the sea are to
be maintained at appropriate quality level.
Continuous monitoring of the coastal waters especially heavy metals and pesticides
in the biota should be carried out to detect possible biomagnification of some toxic
chemicals and to provide early warning. 14
The Central Pollution Board in its report “Coastal Pollution Control Series
COPOCS/5/1986-87” sought preservation and protection of the ecologically fragile areas which
runs as follows:14
. Report of the Central Board for the Prevention and Control of Water Pollution, “coastal pollution control series
COPOCS/1/1982”.
76
The mangrove forest and the wildlife sanctuary in Coringa Island, the Pulicat
Lake and the bird sanctuary at Nelapattu are the ecologically sensitive areas warranting
special attention and protection. No industrial activity which may pose a danger to the
ecosystem in these areas should be permitted.
At Pulicat Lake Area, Machilipatnam, Naupada and Ichapuram, salt pan
irrigation is practised. No water-polluting industry should be allowed nearby.
The domestic sewage and the industrial effluents entering Kolleru Lake
through various drains be properly treated so that no pollutants enter the coastal water
through Upputeru drain.15
Further, the Central Pollution Control Board in its Report regarding “Pollution Potential
of Industries in Coastal Areas of India” dated November, 1995 provides Extensive Data regarding
Aquaculture Farms which is as follows
The effluent generation from aquaculture farms in the east coast only, in
absence of data on west coast farms, is to the tune of 2.37 million cubic meters per day,
out of which Andhra Pradesh has the lion’s share of about 2.12 million cubic meters
per day... It may be noted that in all the States, in most cases, the effluent discharge is
indirect (through estuaries, creeks, canals, harbours). It may also be noteworthy that
the effluents from aquaculture farms are discharged directly/indirectly into the coastal
waters practically without any treatment. For disposal of solid waste, on the other hand,
open dumping and land filling is a common practice.16
Report Of The Food And Agriculture Organization, April, 1995
The Food and Agriculture Organization published a Report in April, 1995 on a Regional study
and workshop on the Environmental Assessment and Management of Aquaculture Development.
India was one of the 16 countries who participated in the workshop. Dr. K. Alagarswami, Director,
Central Institute of Brackish Water Aquaculture, Madras presented a paper titled “the current status
of aquaculture in India, the present phase of development and future growth potential”. It
has been published as an Annexure to the workshop-report published by the Food and Agriculture
Organization.
Various types of technologies adopted by the aquaculture industry in India
Para 5.1.2 of Alagarswami Report provides various types of technologies adopted by the
aquaculture industry in India which may be read as follows:-
15 Report of the Central Pollution Board, “Coastal Pollution Control Series COPOCS/5/1986-87”.
16 Report of the Central Pollution Control Board, regarding “Pollution Potential of Industries in Coastal Areas of
India” dated November, 1995.
77
5.1.2 Types of Technology - Changes In Technology With Time
Traditional: Practised in West
Bengal, Kerala, Karnataka and Goa, also adopted in
some areas of Orissa. Coastal low-living areas with tidal effects along estuaries, creeks and canals,
impoundments of vast areas ranging from 2-200 ha in size. Characteristics; fully tidally-fed; salinity
variations according to monsoon regime; seed resource of mixed species from the adjoining
creeks and canals by auto-stocking; dependent on natural food; water intake and draining managed
through sluice gates depending on local tidal effect; no feeding; periodic harvesting during full and
new moon periods; collection at sluice gates by traps and by bag nets; seasonal fields alternating
paddy (monsoon) crop with shrimp/fish crop (inter monsoon); fields called locally as bheries,
pokkali fields and Khazan lands.
Improved traditional: System as above but with stock entry control; supplementary
stocking with desired species of shrimp seed (P. monodon or P. indicus); practised in ponds of
smaller area 2-5 ha.
Extensive: New pond systems; 1-2 ha ponds; tidally fed; no water exchange, stocking
with seed; local feeds such as claims, snails and pond-side prepared feed with fishmeal, sova,
oilcake, cereal flour etc.; wet dough ball form; stocking density around 20,000/ha.
Modified Extensive: System as above; pond preparation with tilling, liming and fertilisation;
some water exchange with pumpsets; pellet feeds indigenous or imported; stocking density around
50,000/ha.
Semi-intensive: New pond system; ponds 0.25 to 1.0 ha in size; elevated ground with
supply and drainage canals; pond preparation methods carefully followed; regular and periodic
water exchange as required; pond aerators (paddle wheel) at 8 per ha; generally imported feed
with FCR better than 1:1.5 or high energy indigenous feeds; application of drugs and chemicals
when need arises; regular monitoring and management stocking density 15-25/m2.
Intensive: Ponds 0.25-0.50 ha in size; management practices as, above; 4 aerators
in each pond; salinity manipulation as possible; central drainage system to remove accumulated
sludge; imported feed; drugs and chemicals used as prophylactic measures; strict control and
management; stocking density 20-35/m2.
Changes in technology: The initial concept and practice was to develop tide-red systems,
this slowly gave way to a pump-fed systems. Presently, the emphasis is on seawater based farming
systems for P. monodon with a water intake system extending far into the sea with submerged
pipelines, pier system and gravity flow. From sandy clay soils, the present coastal farms are located
in sandy soils also with seepage control provisions.17
17 Para 5.1.2 of Alagarswami Report, published in the Food and Agriculture Organization Report April, 1995.
Alagarswami report further species as follows:The Ministry of Environment and Forests, Government of India, issued a Notification S.O. No.114 (E)
78
Environmental and Social Problems created by the Coastal Aquiculture
Alagarswami report highlights various environmental and social problems created by the
Coastal Aquiculture. The relevant part of the report may be read as under:Physical factors
Shrimp farming along the coastal area ofthe whole country is developing at a rapid rate.
Huge cyclone protection dykes and peripheral dykes are constructed by the shrimp farmers. In many
cases as in Kandleru creek (Andhra Pradesh), the farm areas are the natural drainage areas for
floods Due to physical obstruction caused by the dykes, the natural drain is blocked and flood water
accumulates in the hinterland villages. Protests are being made by people in some of the villages
against such dykes. The ponds are constructed right on the bank of the creeks without leaving any
area for draining of flood water.
Right
of
passage
of coastal fishermen
The shrimp farms do not provide access to the beach for traditional fishermen who have to
reach the sea from their villages. As farms are located and entry is restricted, the fishermen have to
take a longer route to the sea for their operations. This is being objected to by traditional fishermen.
Drinking water problems
The Corporate sector has purchased vast areas adjoining the villages which, in some cases,
include drinking water public wells of the villages. The villagers cannot use these wells anymore as
they are located in private land owned by the farmers. This is causing social problems.
Salinisation
Salinisation of land is spreading further landwards and the wells yield only saline water. In
Tamil Nadu and Andhra Pradesh protests have been voiced against salinisation. Some of the socially
conscious shrimp farm operators are providing drinking water to the affected villages by laying
a pipeline from their own freshwater source wherever available. Apart from wells, the agricultural
farms adjoining the shrimp farms are reported to be affected. However, there is increasing conversion
in 1991, under ‘The Environment (Protection) Act, 1986’ declaring coastal stretches as Coastal Regulation
Zones (CRZ) and regulating activities in the CRZ. This Notification has implications for coastal aquaculture,
particularly those activities within 500 m from the High Tide Line... No regulations to control the use of
chemicals and drugs exist, Pollution Control Board general regulations on effluent discharges include hazardous
substances, but they are not specific to aquaculture. In some regions, there is indiscriminate use of chemicals
and pesticides, particularly in shrimp farms... Under the Notification of Union Ministry of Environment
and Forests, each maritime State is expected to have its own coastal zone management plan, which would
consider aquaculture zonation requirements, along with shoreline development. The zone up to 500 metres
from the waterline along the sea is restricted against any construction activity.
79
of paddy fields as in the Bhimavaram area of Andhra Pradesh and even on the fringes of Chilka Lake
into shrimp farms.
Mangrove areas
The status
report on mangroves of India published by the Ministry of Environment
and Forests (GO1, 1987) is shown in table 5. In the earlier
years, vast areas of mangrove were
destroyed for agriculture, aquaculture and other uses. In the
more recent years, the mangroves
have been protected by law. However, the satellite imagery pictures show destruction of mangroves
in Krishna and Guntur Districts of Andhra Pradesh for construction of shrimp farms. Gujarat
State is planning major shrimp culture programmes
in the
Narmada region adjoining Gulf
18
at Cambay. Protection of mangroves should receive attention.
The agitations made by the environmentally conscious people of the coastal-areas
against polluting aquaculture technologies has been pointed out by Alagarswamy report which
may be read as follows:People’s awareness
People in general have become aware of the environmental issues related to aquaculture.
A current case in point is the agitation against a large commercial farm coming up in Chilka Lake
(Orissa). People have demanded an EIA of the project. People in Nellore District in Andhra Pradesh
have raised environmental issues and called for adoption of environmentally-friendly technologies
and rejection of “imported” technologies from regions which have suffered environmental damage.
Protests have been voiced by the local people in Tuticorin area in Tamil Nadu. Both print and visual
media take up environmental issues with a great deal of zeal. This appears to augur well for regulating
coastal shrimp farming with eco-friendliness.19
18 Ibid. Alagaraswami report further indicates that the demand for shrimp seed is growing with the expansion of
shrimp culture and hatchery production is unable to meet it. Exploitation of natural seed resources is growing
unabated, particularly in West Bengal, Orissa and Andhra Pradesh. Large quantities of fry by catch are discarded by
the fry collectors because their value is insignificant. The report states, “Elimination of fry in the fry by-catch is not
only detrimental to the predators thriving on them, but it also creates an ecological imbalance”.
19 Ibid. The intensive farming technique and the pollutants generated by such farming have been noticed by
Alagarswamy which is as under:In intensive farming, stocking densities are on the increase. In one instance, P. Indicus was stocked
at 70 post larvae/m2, almost reaching the levels of Taiwan before the disease outbreak in 1988.
This necessitates heavy inputs of high energy feeds, the use of drugs and chemicals and good water
exchange. The organic load and accumulation of metabolites in the water
drained into the
sea should be very high as could be seen from the dark-brown colour and consistency of the drain
water. Chotanagpur Law Journal
80
The Alagarswamy Report Suggests Future Management Strategies
Government in Resolving any Conflicts or Environmental Problems
for
Farms
and
Alagarswamy report suggests future management strategies - for farms and Government in
resolving any conflicts or environmental problems which may be read as follows:
As shrimp farming is developing fast, the following strategies have
avoiding problems which have arisen in other countries (or reducing their
been developed for
impact):
1. India needs to boost production
of shrimp through aquaculture with
environment and development as a unified motto.
2. Since the area available is vast, this can be achieved by application of environmentallyfriendly technologies for optimal
production rates against maximum production rates.
3. Sustainable development or shrimp aquaculture should be guided by the principles of
social equity, nutritional security, environmental protection and economic development with
a holistic approach to achieve long-term benefits.
4. New definitions and parameters of extensive, semi-intensive and
intensive culture
systems as suited to Indian conditions and Government
policies rather than copying
models of other countries (particularly those which have rushed and suffered) and the
development or guidelines thereof.
5. Diversification of
species among shrimps and to integrate fish
wherever possible
to suit the different agro-climatic and aquatic zones of the country.
6. Careful development of Coastal Zone Management Plans under CRZ to
meet the
requirements of coastal aquaculture development plans with some flexibility (as required)
for specific areas.
7. Identification of aquaculture zones or careful consideration and
provision of buffer
zones against possible impact on other land uses: also intermediate buffer zones within
aquaculture zones.
8. Consideration of the living, social and vocational needs of local people in villages/towns
in aquaculture plans in order to avoid conflicts.
9. Development of sets or regulations on use/ban of drugs and
chemicals, including
antibiotics, in hatcheries and farms; on abstraction of groundwater and salinisation
problems.
10. Development of standards for effluent discharge as applicable to
local conditions.
11. Development of viable technologies for secondary aquaculture to gainfully utilize
nutrient enriched farm effluents and encourage farmers to adopt such technologies with the
necessary
support.
12. In view of the fact that coastal farms are located generally in
remote
areas
and cannot be monitored by external agencies on a reasonably effective basis, farmers/
group of farmers should equip themselves with facilities to monitor possible important
parameters at periodic intervals and maintain such records for their own benefits and for
production to inspecting agencies.
13. Brackish water Fish Farmer Development Agencies to be
strengthened in all
81
respects, including environmental management and disease diagnosis, prevention and
control, through appropriate training and setting up district level laboratories for essential
analytical and diagnostic work.
14. Manpower development at managerial and technical level.
15. Research-extension-farmer group meet for appropriate technologies and feedback.
16. Effective monitoring and enforcement of regulations, use of nets and fishing in any
specified water for a period not exceeding two years. Thus, legal provisions were made on
fisheries matters in India nearly a century ago.20
Alagarswami’s Report Identifies Salinisation of Land, Salinisation of Drinking Water Wells
and suggests Preventive Measures
Alagarswami’s report identifies salinisation or land salinisation of drinking water wells,
obstruction of natural drainage of flood water, passage of access
to sea by fishermen and
public, self-pollution of ponds, pollution of source water, destruction of mangroves, land subsidence
and pressure on wild seed resources and consequences thereof as environmental issues in shrimp
culture. Para 6.2 of the report lists the following preventive measures to protect and preserve marine
environment:Prevention
(i) Aquaculture
units causing harmful changes to the environment; and
(ii) Non-aquaculturists from modifying the environment to the detriment of aquaculture
production units.
1. Enforcement of legal provisions under the relevant Acts of the Government.
2. CRZ regulations to consider specific needs of aquaculture as an expanding production
activity and the Coastal Zone Management Plans of the States/Union Territories to
carefully plan taking into consideration present situation and future needs.
3. Early development of regulations on permissible levels of most significant parameters
of water quality keeping in view the limited intervention of aquaculture for promoting
growth of stock in the medium.
4. Environment Impact Assessment (EIA) and Environmental Monitoring
Plan (EMP)
to be insisted upon for larger units and self assessment/monitoring for smaller units,
subject to verification at
inspection.
5. Zonations and appropriate sitting of farms; not to proliferate indiscriminately but to
develop in a planned
manner for sustaining
production (Alagarswami, 1991).
6. More hatcheries to be encouraged and supported to meet seed demands to reduce pressure
on wild seed resources.
7. Feed mills to maintain quality of feeds and to ensure water stability as required; self/
external inspection mechanism to be introduced to maintain
specific standards.
21
8. Mangrove forests not to be touched for aquaculture purposes.
20 . Ibid.
21 . Ibid., para 6.2. The Food and Agriculture Organization Report - based on Alagaswami Report states the impact of
aquaculture on the environment, in India:
82
Report Of The United Nations Research Institute Dated June 19, 1995
The Report of the United Nations Research Institute for Social Development dated June,
22
1995 states the picture regarding polluted waters and depleted fisheries which may be read as
follows:Polluted waters and depleted fisheries:
Shrimp farms use both sea and fresh water to replenish their ponds.This brings them into
competition with other users of these water resources. In areas where commercial shrimp ponds
have been constructed there is frequently insufficient fresh water left to met customary needs
for irrigation, drinking, washing, or other household and livestock related uses, and waters
supplies may be contaminated, or both. Groundwater salinization has been reported in several
places. This often means that people - most of the time women - have to bring water from more
distant wells. In a village in Tamil Nadu (Nagai-Quaid-Millet District, Pompuhar region), for
example, women have to walk two to three kilometres to fetch drinking water that previously was
available nearby before the expansion of shrimp farms on about 10,000 hectares (Bhagat, 1994).
In Andhra Pradesh, a case study conducted by Vandana Shiva reports that, in the Nellore district,
there was no drinking water availabl for the 600 fisherfolk of the village of Kurru due to aquaculture
farms salinizing groundwater. She adds that “after protest from the local women, drinking water was
supplied in tankers” (Mukul, 1994)... Local stocks of native fish and crustaceans are being depleted
in many places because of the removal of mangroves which served as nurserybeds, and also as a
result of indiscriminate overfishing of wild shrimp fry (over 90 per cent randomly caught fry
are often wasted (Gujja,1994)). Natural fisheries are also frequently damaged by pollution caused
by overloads of nutrients, sediments and chemicals from shrimp farms. In another Indian coastal
village, Ramachandrapuram, fishermen reported that the value of their average catch of shrimp used
to be Rs.50,000 per catamaran per month, but after one year of operation of nearby aquafarms their
catch was ten times smaller (Mukul, 1994). In the Chokoria part of the Sundarbans of Bangladesh,
fishermen report an 80 per cent drop in fish capture since the destruction of the mangroves and
building of dikes for shrimp farming (Sultna, 1994). Frequently, fisherfolk protest because their
traditional access to the coast has been restricted or because stocks of wild crustaceans and fish have
disappeared.
The United Nations Report gives the following picture regarding natural resource degradation
as a result of shrimp farming which reads as follows:The impact of aquaculture on the environment are as follows:
By shrimp culture: Loss of agricultural land and mangroves, obstruction of natural drains, salinisation,
destruction of natural seed resources, use of drugs and chemicals, and extraction of groundwater.
Social conflicts have arisen.
22 The United Nations Research Institute for Social Development in collaboration with the World Wide Fund for
Nature International has conducted a study and published a report dated June 19,1995 called “Some Ecological
and Social Implications of Commercial Shrimp Farming in Asia”. The report is prepared by Solon Barraclong and
Andrea Finger - Stich (the UN Report).
83
In areas densely covered with intensive shrimp farms, however, the industry is responsible for
considerable self-pollution and particularly for bacteriological and viral contamination. Each hectare
of pond produces tons of undigested feed and fasecal wastes for every crop cycle. This induces the
growth of phytoplankton, protozoa, fungus, bacteria and viruses (like the Vibrio group growing in
shrimp faeces and in large part responsible for the 1988 collapse of Tasiwan’s production) (Lin,
1989). The overuse of fertilizers and of veterinary and sanitary products such as antibiotics adds
to the water pollution problem. It also contributes to the decreasing resistance of the shrimp stock.
Where intensive shrimp farms are densely spaced, waste- laden water tends to slosh from one pond
to another before it is finally discharged into the sea. Shrimp producers are extremely concerned
about assured supplies of clean water as it is vital for their immediate economic returns.
Large amounts of sedimentation in intensive shrimp ponds are posing serious disposal
problems for shrimp farmers. From 100 to 500 tons of sediment per hectare per year are apparently
accumulating. Since only some 10 tons of feed is used to produce about 5 tons of shrimp per
hectare per year, this raises questions about where such incredible quantities of sediment come
from (Rosenberry,1994a;42). Ponds are cleaned after each crop cycle and the sediments are often
discarded in water ways leading into the sea, or they are sometimes used to build dikes.Their
putrefaction inside and outside the ponds cause’s foul odours, hypernutrification and eutrophisation,
siltation and turbidity of water courses and estuaries, with detrimental implications on local fauna
and flora...
Biodiversity losses: The impacts of semi-intensive and intensive shrimp aquaculture
on biodiversity (“the totality of genes,species and ecosystems in a region”) are multiple. This is
because of the land area they cover; the water they pollute; the water circulation systems they
alter; the wild fish and crustacean habitats they replace; the risks they pose of disease transfer;
the impacts of released raised shrimp on the genetic diversity and resilence of indigenous shrimp
and possibly also their negative impacts on other native fauna and flora.
Health hazards: Health hazards to local populations living near or working in shrimp
farms have been observed in several places. For instance, in Tamil Nadu (Quaid-e-Milleth district
near Pondicherry) an approximately 1,500 acre large shrimp farm has been reported to have caused
eight deaths from previously unknown diseases within a period of two months following the
installation of the aquaculture farm (Naganathan et al.,1995:607). There are numerous hazards to
public health along the shrimp production chain from the farmers through the various processors
to the often distant consumers. The workers employed on shrimp farms handle several potentially
dangerous chemicals, and may be exposed to unsanitary working conditions.23
The United Nations Report states that intensive ponds have a maximum life of only 5 to 10
years. Abandoned ponds can no longer be used for shrimp and there are few known alternative uses
for them except some other types of aquaculture. Apparently they can seldom be economically
rehabilitated for other uses such as crop land. The extent of abandoned areas by the shrimp industry
has been indicated by the United Nations Report in the following manner:23 Ibid.
84
After a production cycle of about four of five months, shrimp ponds under intensive use are
cleaned and disinfected and the polluted sludge is removed and often disposed for unsafely. This
treatment, however, does not usually suffice to maintain the ponds’ productivity for more than
five to ten years (Ibid. Annex III/12). Entrepreneurs then move to other areas because of pollution
and disease. This mode of production has been called “rape and run” (Csavas, 1994b). The altered
milieu of these abandoned ponds inhibits the spontaneous regeneration of vegetation and their
use for agriculture, forestry, other
aquaculture or related fishing activities. These abandoned
areas do not appear in worldwide estimates of areas used for shrimp farming, which for 1993 were
estimated to include 962,600 hectares, of which 847,000 hectares were in Asia. In December 1994
these areas were estimated to have increased worldwide to 1,147,300 with 1,017,000 hectares in Asia
(Rosenberry, 1993 and 1994). Globally, areas affected by the industry’s practices over the last decade
are probably at least one third larger, or even more if the total infrastructures surrounding the ponds
are accounted for.24
The United Nations Report pithily which sums up the “conflicts and externalities”
as follows:A major portion of the conflicts arising from the expansion of shrimp farming
are the result of environmental and social degradation that is not included in the
costs of shrimp production. Where the industry assumes no
responsibility for
damages to other groups arising from its activities, economists call them “externalities”.
For example, abandoned ponds are usually virtually unusable for other purposes
for indefinite periods without costly rehabilitation, which is seldom undertaken.
Mangrove destruction, flooding of crops, salinization or pollution of land and water
associated with the expansion of shrimp farming all affect the local people depending
on these resources.25
Approach Of The Apex Court Towards The Protection And Promoton Of Marine Envirknment
The Supreme has given landmarks judgments for the protection, preservation and promotion
of environment and marine environment. It has issued effective directions and laid down marvelous
principles to protect and preserve environment.
In the leading case of Vellore Citizens Welfare Forum,26 the Apex Court has dealt with the
concept of ‘sustainable development’ and has specifically accepted ‘The Precautionary Principle’
and ‘The Polluter Pays principle’ as part of the environmental laws of the land and included in the
expression ‘life and personal liberty’ under Article 21 of the Constitution. The relevant part of the
judgment is as under:
During the two decades from Stockholm to Rio ‘Sustainable Development’ has come to
24 Ibid.
25 Ibid.
26 Vellore Citizens Welfare Forum v. Union of India & Ors, AIR 1996 SC 2715.
85
be accepted as a viable concept to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting eco-systems. ‘Sustainable Development’ as
defined by the Bundtland Report means ‘Development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs’. We have no hesitation
in holding that ‘Sustainable Development’ as a balancing concept between ecology and development
has been accepted as a part of the Customary International Law though its salient features have yet
to be
finalised by the International Law Jurists.
Some of the salient principles of ‘Sustainable Development’, as culled out from Brundtland
Report and other international documents, are Inter-Generational Equity, Use and Conservation of
Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle,
Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing
countries. We are, however, of the view that ‘The Precautionary Principle’ and ‘The Polluter Pays
principle’ are essential features of ‘Sustainable Development’. The ‘Precautionary Principle’ - in the
context of the municipal law - means:
(i) Environment measures - by the State Government and the statutory authorities- must
anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental degradation,
(iii) The ‘Onus of proof’ is on the actor of the developer/industrialist to show that his action
is environmentally benign.27
‘The Polluter Pays principle’ has been held to be a sound principle by the Supreme
Court in Indian Council for Enviro-Legal Action case28. The Court observed:
We are of the opinion that any principle evolved in this behalf should be simple, practical
and suited to the conditions obtaining in this country.29
The Court ruled that:
Once the activity carried on is hazardous or inherently dangerous, the person carrying on
such activity is liable to make good the loss caused to any other person by his activity irrespective of
the fact whether he took reasonable care while carrying on his activity. The rule is premised upon
the very nature of the activity carried on.30
In Indian Council For Enviro-Legal Action case31, a three Judges Bench of the Supreme
Court made beautiful observations regarding the significance of jurisprudence, rule of law and object
and purpose of law.
27 Id at 2720-2721, paras 10-11.
28 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
29 Id at 246, para 65.
30 Ibid.
31 Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281.
86
The Court stated that with rapid industrialisation taking place, there is an increasing threat
to the maintenance of the ecological balance. The general public is becoming aware of the need to
protect environment. Even though, laws have been passed for the protection of environment, the
enforcement of the same has been tardy, to say the least. With the governmental authorities not
showing any concern with the enforcement of the said Acts, and with the development taking place
for personal gains at the expense of environment and with disregard of the mandatory provisions of
law, some public spirited persons have been initiating public interest litigations. The legal position
relating to the exercise of jurisdiction by the Courts for preventing environmental degradation and
thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various
decisions the Apex Court. The primary effort of the Court, while dealing with the environmental
related issues, is to see that the enforcement agencies, whether it be the State or any other authority,
take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the
people’s fundamental rights but in regard to many technical matters, the Courts may not be fully
equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon
orders have been passed from time to time. Even though, it is not the function of the Court to see the
day to day enforcement of the law, that being the function of the Executive, but because of the nonfunctioning of the enforcement agencies, the Courts as of necessity have had to pass orders directing
the enforcement - agencies to implement the law.32 The Court observed:
With increasing threat to the environment degradation taking place in
the different parts of the country, it may not be possible for any single authority to
effectively control the same. Environment degradation is best protected by the people
themselves. In this connection, some of the non-governmental organisations (NGOs)
and other environmentalists are doing singular service. Time has perhaps come when
the Government can usefully draw upon the resources of such NGOs to help and assist
in the implementation of the laws relating to protection of the environment. Under
Section 3 of the Act,33 the Central Government has the power to constitute one or more
authorities for the purposes of exercising and performing such powers and functions,
including the power to issue directions under Section 5 of the Act of the Central
Government as may be delegated to them.34
S. Jagannath v. Union of India 35 is an important case decided by a Division Bench of
the Supreme Court regarding marine environment. In this case the Court held that sea coast and
beaches are gift of nature and any activity polluting the same cannot be permitted. It was held that the
intensified shrimp farming culture by modern methods were violative of constitutional provisions and
Central Acts, especially Environment Protection Act, Water (Prevention and Control of Pollution)
Act and Hazardous Waste (Management and Handling) Rules.
It was held that such activity were also violative of Coastal Regulation Zone, 1991, issued
32 Id, at 300-301.
33 Act here means the Environment Protection Act, 1986.
34 Id at 302-303, para 47.
35 (1997) 2 SCC 87.
87
under Rule 5(3) (d) of the Environment (Protection) Rules, 1986. Therefore, it could not be permitted
to operate.
It was held that the polluting industries are ‘absolutely liable to compensate for the harm
caused by them to villagers in the affected area, to the soil and to the underground water rand
hence, they are bound to take all necessary measures to remove sludge and other pollutants lying
in the affected areas’. The ‘Polluter Pays principle’ as interpreted by the Apex Court means that
the absolute liability for harm to the environment extends not only to compensate the victims
of pollution but also the cost of restoring the environmental degradation. Remediation of the
damaged environment is part of the process of‘Sustainable Development’ and as such the polluter
was liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged
ecology. The learned Judge observed:
The precautionary principle and the polluter pays principle have been accepted
as part of the law of land. Article 21 of the Constitution of India guarantees protection
of life and personal liberty.36
The learned Judge held that a shrimp farm on the coastal area by itself operates as a dyke
or a band as it leaves no area for draining of the flood waters. The construction of the shrimp farms,
therefore, was violative of clause (viii) of para 2 of the Coastal Regulation Zone Notification. The
learned judge observed:
Annexure-1 to the CRZ Notification contains regulations regarding Coastal Area
Classification and Development. The coastal stretches within 500 m of HTL of the
landward side are classified into four categories, namely, CRZ-I, CRZ-II, CRZ-III and
CRZ-IV. Para 6(2) of the CRZ Notification lays down the norms for the development or
construction activities in different categories of CRZ areas. In CRZ-III Zone agriculture,
horticulture, gardens, pastures, parks, playfields, forestry, and salt manufacture from sea
level may be permitted up to 200 m from the high tide line. The aquaculture or shrimp
farming has not been included as a permissible use and as such is prohibited even in this
zone. A relevant point arises at this stage. Salt manufacturing process like the shrimp
culture industry depends on sea water. Salt manufacturers can also raise the argument
that since they are wholly dependent on sea water theirs is an industry “directly related to
water front” or “directly needing fore-shore facilities”. The argument stands negatived
by inclusion of the salt manufacturing industry in CRZ-III Zone under para 6(2) or
the CRZ notification otherwise it was not necessary to include the industry therein
because it could be set-up any were in the coastal regulation zone in terms of para
2(1) of the CRZ Notification. It is thus obvious that an industry dependent on seawater
cannot by itself be an industry “directly related to water front” or “directly needing
fore-shore facilities”. The shrimp culture industry, therefore, cannot be permitted to be
set up any where in the coastal regulation Zone under the CRZ Notification.37
36 Id. at 145, para 49
37 Id at. 105-106, para 25.
88
Thus, the learned Judge stated that sea coast and beaches are a gift of the nature to the
mankind. The aesthetic qualities and recreational utility of the said area has to be maintained. Any
activity which has the affect or degrading the environment cannot be permitted. Apart from that the
right of the fisherman and farmers living in the coastal areas to eke their living by way of fishing and
farming could not be denied to them. 38
The learned Judge pointed out that at universal level, coastal pollution is an emerging
problem. India is already suffering from a serious environmental problem. Commenting upon the
Coastal Pollution problem in India, the learned Judge observed:
Coastal pollution, universally, is an emerging problem. So far as India is
concerned it has already become a serious environmental problem. Besides direct
dumping of waste materials in the seas discharge through marine outfalls, large volumes
of untreated of semi-treated wastes generated in various land-based sources/activities
ultimately find way to the seas. The coastal waters directly receive the inland waters, by
way of surface run-off and land-drainage, laden with myriad of refuse materials - the
rejects or wastes of the civilisation. Apart from inputs from rivers and effluentoutfalls, the coastal areas are subject to intensive fishing, navigational activities,
recreations, ports, industrial discharge and harbours which are causative factors of
water quality degradation to varying degrees. Contrary to the open sea, the changes
in the quality of coastal waters are much greater due to river discharges under tidal
conditions.39
Thus, the Supreme Court warned against coastal pollution problem and pointed out that
India is facing serious environmental problem. The Court issued a number of directions to be
followed by the Central Government and State Governments for the protection and promotion of
the marine environment. The Central Government should constitute an authority under Section
3(3) of the Environment (Protection) Act, 1986. It must confer on the said authority all the powers
necessary to protect the ecologically fragile coastal areas, sea shore, water front and other coastal
areas. The authority so constituted by the Central Government must implement ‘the Precautionary
Principle’ and ‘the Polluter pays principles’ as directed by the Apex Court of the country. It was
further directed that any violation or non-compliance of the directions of the Supreme Court shall
attract the provisions of the Contempt of Courts Act, 1971 in addition.
Coastal Regulation Zone Notification, 201140
The Ministry of Environment and Forests (Department of Environment, Forests and Wildlife)
38Id at 106. Further, the learned Judge referred Alagarswami report which states that “the shrimp farms do not provide
excess to the beach for traditional fishermen who have to reach the sea from their villages. As farms are located and
entry is restricted the fishermen have to take a longer route to the sea for their operation. This is being
objected to by traditional fishermen”.
39 Id. at 94, para 5.
40 The Notification was published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) of dated
the 6th January, 2011.
89
vide its Notification number S.O.19 (E) dated the 6th January, 2011 issued Coastal Regulation Zone
Notification, 2011. It imposed certain restrictions on the setting up and expansions of industries,
operations and processes in the said zone for its protection. Further, the Notification has declared the
following as prohibited activities within the CRZ(i) Setting up of new industries and expansion of existing industries.
(ii) Manufacture or handling oil storage or disposal of hazardous substance.
(iii) Setting up and expansion of fish processing units including warehousing except hatchery
and natural fish drying in permitted areas.
(iv) Land reclamation, bunding or disturbing the natural course of seawater.
(v) Setting up and expansion of units or mechanism for disposal of wastes and effluents.
(vi) Discharge of untreated waste and effluents from industries, cities or towns and other
human settlements.
(vii) Dumping of city or town wastes including construction debris, industrial solid wastes,
fly ash for the purpose of land filling and the like.
(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels
and entertainment activities.
(x) Mining of sand, rocks and other sub-strata materials.
(xi) Drawl of groundwater and construction related thereto.
(xi) Construction activities in CRZ-I.
(xiii) Dressing or altering the sand dunes, hills, natural features including landscape changes
for beautification, recreation and other such purpose.
(xiv) Facilities required for patrolling and vigilance activities of marine/coastal police
stations.41
Concluding Remarks
From the above discussion, it is clear that proper and effective action must be taken regarding
prevention of costal pollution and preservation, protection and promotion of coastal ecology. Further,
it is important to note that at universal level, coastal pollution is an emerging problem. India is already
suffering from a serious environmental problem. At international level, true efforts for the protection
and promotion of the global environment started with the convening of the Stockholm Conference
on Human Environment held in 1972. The Declaration laid down certain common convictions of the
participant nations and made certain recommendations on development and environment.
The International Convention on the Law of Sea, 1982 has made extensive provisions for the
protection and preservation of the marine environment. The Convention specifically provides that
the “States have the obligation to protect and preserve the marine environment.”42 It is an obligation
of the States to prevent, reduce, and control pollution of marine environment individually and jointly
at a global, and, as appropriate, on regional levels.
The Constitution of India lays down provision for the protection of environment. Article 48
41 .Para 3 of the Notification.
42 Article 192 of the International Convention on the Law of Sea, 1982.
90
provides, “The State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country.”
The period of eighties and the nineties marked these significant changes. In fact, a developing
country like India was confronted with a host of problems when it took off to newer heights of
industrial progress and development. The legislative and statutory regime had to adjust itself to various
kinds of demands of a socio-economic nature without destroying the existing natural resources. In
fact, the growth and development of environmental jurisprudence had to strike a balance between
development and sustainable development. This is a phenomenon typical of a ‘rule of law’ society,
where law becomes a dynamic instrument of change for a better environment.
Recognizing the importance of the prevention and control of pollution of water for human
existence Parliament has passed the Water (Prevention and Control of Pollution) Act, 1974 (Act 6
of 1974).
Further, Parliament has also passed the Environment (Protection) Act, 1986. The aim and
object of the Act is to provide for the protection and improvement of environment and for matters
connected therewith.
The Ministry of Environment and Forests issued the Coastal Regulation Zone Notification
on February 19, 1991. By this Notification, Government declared the coastal stretches of seas, bays,
estuaries, creeks, rivers and backwaters which were influenced by tidal action (in the landward
side) up to 500 metres from the High Tide Line and the land between Low Tide Line and HTL as
Regulation Zones.
It is important to note that that although Parliament and the State Legislatures have enacted
the aforesaid laws imposing duties on the Central and State Board and the municipalities for
prevention and control of pollution of water, many of those provisions have just remained on paper
without any adequate action being taken pursuant thereto.
In the leading case of S. Jagannath v. Union of India, 43a Division Bench of the Supreme
Court stated that sea coast and beaches are gift of nature and any activity polluting the same cannot
be permitted. It was held that the intensified shrimp farming culture by modern methods were
violative of constitutional provisions and Central Acts, especially Environment Protection Act,
Water (Prevention and Control of Pollution) Act and Hazardous Waste (Management and Handling)
Rules. Further, the Supreme Court interpreted the concept of ‘sustainable development’ and
expressly recognized ‘The Precautionary Principle’ and ‘the Polluter Pays principle’ as part of the
environmental jurisprudence of the land and expressly included in the expression ‘life and personal
liberty’ under Article 21 of the Constitution.
The Ministry of Environment and Forests (Department of Environment, Forests and Wildlife)
vide its Notification number S.O.19 (E) dated the 6th January, 2011 issued Coastal Regulation Zone
Notification, 2011. The Notification has imposed certain restrictions on the setting up and expansions
43 (1997) 2 SCC 87.
91
of industries, operations and processes in the said zone for its protection. Further, the Notification has
prohibited those activities within the CRZ which are polluting the costal ecology.
It is submitted that today interaction of human beings with nature is so extensive that the
environmental issues have assumed such proportions as to affect all humanity.44 Regarding the grave
consequences of the pollution of water and air and the need for protecting and improving the natural
environment Venkataramiath J. observed:
Having regard to the grave consequences of the pollution of water and air and
the need for protecting and improving the natural environment which is considered to
be one of the fundamental duties under the Constitution [vide Clause (g) of Article 51A
of the Constitution] we are of the view that it is the duty of the Central Government
to direct all the educational institutions throughout India to teach at least for one
hour in a week lessons relating to the protection and the improvement of the natural
environment including forests, lakes, rivers and wild life in the first ten classes. The
Central Government shall get text books written for the said purpose and distribute them
to the educational institutions free of cost. Children should be taught about the need
for maintaining cleanliness commencing with the cleanliness of the house both inside
and outside, and of the streets in which they live. Clean surroundings lead to healthy
body and healthy mind. Training of teachers who teach this subject by the introduction
of short term courses for such training shall also be considered. This should be done
throughout India.45
In order to rouse amongst the people the consciousness of cleanliness of environment the
learned Judge further observed:
In order to rouse amongst the people the consciousness of cleanliness of
environment the Government of India and the Governments of the States and of the
Union Territories may consider the desirability of organising ‘Keep the city clean’
week (Nagar Nirmalikarana Saptaha), and ‘Keep the village clean’ week (Grama
Nirainlikarana Saptaha) in every city, town and village throughout India at least once a
year. During that week the entire city, town or village should be kept as far as possible
clean, tidy and free from pollution of land, water and air. The organisation of the
weak should be entrusted to the Nagar Mahapalikas, Municipal Corporations, Town
Municipalities, Village Panchayats or such other local authorities having jurisdiction
over the area in question. If the authorities decide to organise such a week it may not
be celebrated in the same week throughout India but may be staggered depending
upon the convenience of the particular city, town or village. During that week all the
citizens including the members of the executive, members of Parliament and the State
Legislatures, members of the judiciary may be requested to cooperate with the local
authorities and to take part in the celebrations by rendering free personal service. This
44 Dharmendra S. Sengar, Environmental Law, (Prentice Hall of India, Private Limited, New Delhi, 2007) at 1.
45 M.C. Mehta v. Union of India, (1988) 4 SCCC 471 at 491.
92
would surely create a national awareness of the problems faced by the people by the
appalling all-round deterioration of the environment which we are witnessing today.
We request the Ministry of Environment of the Government of India to give a serious
consideration to the above suggestion.46
*****
46. Id. at 491-492.
93
MRTP Commission: Architect of Unfair Trade Practice
Jurisprudence in India
Dr. Manoj Kumar Padhy1
Introduction
Unfair trade practice is nearly a worldwide phenomenon. It constitutes deception against
the consumers and other bonafide purchasers. To deal with such practice a number of countries
have put in place statutory regulations of varying nature. There are two possible approaches to
deal with the problem of unfair trade practices, firstly, to make it an offence2 and secondly, to hold
the manufacturer or businessman liable when unfair trades practice is established after an enquiry
conducted by a Commission established for this purpose. Unfair trade practice includes false or
misleading advertisements, which may be false representation as to standard, quality or grade of
goods and services, false representation as to sponsorship and approval of goods or services of
sellers and manufactures, false or misleading representation concerning need for or usefulness of
any goods or services, misrepresentation as to prices, disparagement of goods or services of trade
of others etc. Besides false and misleading advertisement regarding standard or quality of goods or
services and their prices, usefulness etc., false or misleading advertisements relating to bargain price,
offer of gifts are the matter of serious and grave concern for national governments across the globe.
In a bargain sale buyers are lured into believing that they are getting something for nothing or at a
nominal value for their money. Prices may be advertised at greatly reduced or cut, when in reality
the goods may be sold at sellers’ regular price. Bargain price and sale constitutes the fraudulent
practice of “bait and switch”. In “bait and switch”, a seller seeks to attract consumer by advertising
a product which he does not intend to sale at an extremely low price. When a customer responds to
the advertisement the seller discourages him from purchasing the bait and instead this switches him
to a higher priced and more profitable item.
While developed countries like USA3, Canada4 and UK5 adopted the necessary legislation
and administrative measure to curb the unfair trade long ago the matter was left to be regulated under
1 Reader, Faculty of Law, BHU
2
The Trade Practices Act, 1974 of Australia provides criminal liability for false or misleading representation. Similar
liability is also there under Competition Act of Canada, Consumer Information Act of Ireland and Trade Description
Act of UK etc.
3
Federal Trade Commission Act of USA was passed in 1914, which created the federal agency that has the primary
responsibility for the regulation of advertising. Apart from the FTC Act, the Lanham Trade Marks Act controls the
unfair disparagement among the competitors. For further details see, Rajeev Batra, John G Myers and David A.
Aaker, Advertising Management, 5th ed., 1997
4
Competition Act, 1985 of Canada prohibits deceptive or misleading advertising or representation. Section 52 of the
Competition Act makes false or misleading representation an indictable offence.
5
Trade Description Act, 1968 of UK prohibits false trade description. The office of Fair Trading (OFT) acts under
the control of misleading Advertisements Regulation 1988, whose main role is to support and reinforce existing
advertising controls, do not replace them.
94
the law of contracts and tort in India. The Monopoly and Restrictive Trade Practices Act (hereinafter
referred to as MRTP Act), as originally enacted did not contain any provision for protection of
the consumers against unfair trade practices. The Act was then directed only against restricted and
monopolistic trade practices. The provisions of the Act were based on the assumption that, if dealers,
manufactures or producers could be prevented from distorting competition, the consumer would
get a fair deal. The growing incidence of misleading and deceptive practices proved that the said
assumption was wrong. The absence of any special legislation to deal with such practices created a
situation of a very safe haven for the suppliers, manufactures, distributors, businessmen and sellers
and a position of frustration and uncertainty for the consumers. Following the recommendations of
the Sachar Committee6 it was considered necessary to amend the MRTP Act, 1969 and Parliament
in its wisdom inserted Section 36A to 36E in Part B of the Act by an amending the Act of 1984 to
provide specific legal provisions for regulating unfair trade practices. Against this background an
attempt will be made hereunder to explore the legal protection that this Act provided to consumers
against unfair trade practices. The object of the study is to highlight the role of the MRTP Commission
in developing the unfair trade practice jurisprudence in India which can be followed by the consumer
forum, the only adjudicator after the repeal of the MRTP Act.
Unfair Trade Practice under the MRTP ACT, 1969
Unfair trade practice according to the MRTP Act means, a trade practice which for the
purpose of promoting the sale, use or supply of any goods or provision of any services adopts any
unfair method or unfair or deceptive practice including any of the following practices ...”7 A bare
perusal of ‘unfair trade practice’ as defined under the Act, would clearly indicate that following
ingredients are necessary to constitute an unfair trade practice, firstly, there must be a trade practice8;
secondly, the trade practice must be employed for the purpose of promoting sale, use or supply of any
goods or the provisions of any service; and finally, any unfair method or unfair or deceptive practice
including the practice mentioned under Sections 36(A)(1) to 36(A)(5) of MRTP Act must be carried
out while employing the said trade practice.
The term ‘unfair’ literally means something which is not based on fairness and ‘deception’
exists when an advertisement is introduced into perceptual process which differs from reality of the
situation and affects the buying behaviour to the detriment of the consumer. Further, an analysis of
the definition of unfair trade practice under Section 36A of the MRTP Act reveals that it is a general
definition of unfair trade practice and is not restricted to only those specific categories of unfair trade
practices which are enumerated in clauses (1) to (5) of Section 36A. It may be noted here that although
‘unfair trade practice’ defined in Section 36(A) does not cover all types of unfair trade practices there
may be some known or yet to be known unfair methods or unfair or deceptive practices which may
6
7
8
“High powered Expert Committee” set up by the Government resolution to review the Companies Act and MRTP
Act.
MRTP Act, 1969, Section 36(A)
Trade practice means any practice relating to the carrying on of any trade, and includes, (i) anything done by any
person which controls or affects the price charged by, or the method of trading of any trader or any class of traders,
and (ii) a single or isolated action of any person in relation to any trade[MRTP Act, 1969, Section 2(U)]
95
not fall within one or more of the categories of unfair trade practices as set out in Section 36(A). To
this extent sub-clause (vi) of section 2(i)9 attempts to supplement the provisions of Section 36(A) by
empowering the MRTP Commission to inquire into certain trade practice which may not be covered
within scope 36(A) but still, because of their adverse effect on competition may be dealt with under
the title ‘Monopolistic trade practices’. It may be pointed out here that the requirement of ‘loss’ or
‘injury’ to constitute unfair trade practice has been dropped by the MRTP (Amendment) Act, 1991.
Still in some recent cases the Supreme Court has insisted on the requirement of ‘loss’ or ‘injury’,
which is quite unfortunate as it tends to restrict the meaning of unfair trade practices under this Act.10
Categories of Unfair Trade Practices
Specific unfair trade practices in Section 36(A) fall under broad heads namely, firstly, false
or misleading representation; secondly, bargain sale, ‘bait and switch’ selling; thirdly, offering of
gifts or prizes with the intention of not providing them and conducting promotional contests;
fourthly, non-compliance of product safety standards; and finally, hoarding or destruction of goods.
(1) False or Misleading Representation
The terms ‘false or misleading’ is not defined in the MRTP Act. But in a general parlance
‘false’ means something more than a mere untruth. It may include all types of falsehoods, intentional
or innocent. A false statement may thus be either intentionally, knowingly or negligently untrue or
by mistake or honestly untrue. The statements must be false at the time when they were made11.
Similarly, the representation may be misleading because facts that should be said are omitted or
because advertisements are composed or purposefully printed in such a way as to mislead12. Under
the MRTP Act, when a trader or any person, who has misrepresented a fact whether he believes it to
be true or not and with or without the intention of deceiving or defrauding the consumer, he is said
to have violated the provisions of pertaining to unfair trade practices. Being an economic legislation,
the expression false representation under the MRTP Act pertains to goods and services of economic
value. Discussed below are forms of such representation:
(i)
Falsely represents that the Goods are of a Particular Standard, Quality,
Quantity, Grade, Composition, Style or Model:
The use of the word ‘particular’ in Section 36(A)(1)(i) restricts the otherwise wider meaning
that this clause would have had in the sense of a general standard which is incapable of a precise
definition and thus leads to uncertainty. The ‘standard’ or ‘quality’ of the product is a matter for the
9
Section 2(i)(vi): “Monopolistic trade practice” means a trade practice which has or is likely to have, the effect of
preventing or lessening competition in the production supply or distribution of any goods; or in the provision or
maintenance of any services by the adoption of unfair methods or unfair or deceptive practices
10 Hindustan Ciba Geigy v. Union of India and Others, (2003) 1 SCC 134 and Premier Engineers v. Taj Rubber
Industries, (2005) 6 SCC 610.
11 S. Krishnamurthi, Principles of Law Relating to MRTP, (New Delhi: Orient Law House, 1986), pp. 145-146.
12 Ibid. p. 145.
96
subjective judgment of the producer because only he knows the virtues of his goods. All that the
law expects from him is that the facts on the basis of which a subjective judgment is passed must be
true and must not be misleading. In Mini Circuits (A Division of Sanmar) Electronics Corporation
Ltd. v. GML Chip Components Ltd.,13 the respondent represented to the applicant that its goods
(chip capacitors) are of a particular standard and quality and laid down the specifications for chip
capacitors and stipulated that the product should conform to the said specifications and must be of
high reliability. The goods however, were found to be suffering from an inherent manufacturing
defect. It also affected the quality of Hydro Micro Circuits (HMC) of which they form an important
component. The respondent was held to be indulged in unfair trade practice. The use of hyperboles, or
superlatives to describe the product could not by itself be treated as an instance of false or misleading
representation. Advertisements, claiming that “Hero Cycle is the best cycle and it is No. 1 in the
world” and “Hero bicycle as strong as an elephant” are the instances of such hyperboles14. The
Supreme Court of India examined this part of the clause in M/s Lakhanpal National Limited v. MRTP
Commission and another,15 in the instant case the appellant company advertised for promoting the
sale of its product that Novino batteries were manufactured in collaboration with National Panasonic
of Japan using National Panasonic techniques. But actually the appellant was manufacturing Novino
batteries in collaboration with Mitsushita Ltd., which sold its products by the brand names ‘National’
and ‘Panasonic’. The MRTP Commission passed an order under Section 36 (D) (1) holding it to be
an unfair trade practice. On appeal the Supreme Court allowed the appeal by holding that:
“The Mitushita Ltd is not a popular name in this country while its product ‘National’
and ‘Panasonic’ are. An advertisement mentioning merely Mitsushita Ltd. may,
therefore fail to convey anything to an ordinary buyer unless he is also told that
it is the same company which manufactures products known to him by the names
‘National” and “Panasonic”. If such were the position there would not have been
any scope for objection. However, in our view the same effect is produced by the
impugned advertisement. It has to be remembered that there is no other company
with the name of “National” and “Panasonic” and there is no scope for any confusion
on that score. Where the reference is being made to the standard or the quality, it
is not material whether the manufacturing company is indicated by its accurately
correct name or by its description with reference to its products”16.
(ii)
Falsely
Grade:
represents that the
Services
are of a
Particular Standard, Quality
or
Any false claim as to services that they are of a particular standard, quality or grade is
(1996) 4 CTJ (MRTPC); In N.S. Ahluwalia v. 1) M/s Hindustan Motors and 2) M/s Hind Motors, (1996) 4 CTJ 290
(MRTPC), the applicant purchased three Contessa cars for using them as Taxi. The trade practice of the respondents
in having supplied goods of a standard, quality or grade less than, what they had represented, held to be unfair trade
practice.
14 The Director General (I&R) v. Hero Cycle Pvt. Ltd., (1993) 1 CTJ 592 (MRTPC)
15 1993 1 CTJ 345 (SC).
16 Ibid. p. 348.
13
97
described as unfair trade practices under section 36(A) (1) (ii). The word ‘particular’ restricts the
otherwise wider meaning that this clause would have had in the sense of a general standard which
is incapable of a precise definition and thus may lead to uncertainty. This clause includes delay in
delivering speed post letter without any sufficient reason as opposed to the claim17. In a case the MRTP
Commission passed a ‘cease-and-desist’ order against Indian Motion Pictures Producers Association
and six of its members against the practice of insertion of advertisement in video cassettes affecting
the feature films. As a result, the entire film was not shown to the people. This was contrary to the
declaration affixed on the cassettes that the film was an exact copy of the film as approved by the
Central Board of Film Certification. This practice of the members of the association was found to be
an unfair trade practice under the provisions of the MRTP Act18. Where in a housing allotment case
less area of 182 sq.ft has been allotted against 352 sq. ft. as initially represented and the complainant
already parted with substantial part of money, the act held to constitute an unfair trade practice19.
Similarly, in a case the Commission held that retaining of one’s money and denying right of interest
by a bank definitely amount to an act opposed to banking ethics being an unfair trade practice20.
In a number of cases the MRTP Commission has made a distinction between hyperboles
and puffed-up statements or exaggerated claims or false and misleading advertisement and held
that advertisements belonging to the former category cannot be struck down unless it is established
beyond doubt that they contain false or misleading representations which are prejudicial to public
interest. It was held that an advertisement claiming that deposit was ‘risk free’21, or assuring “100
percent peace of mind”22 was not an unfair trade practice. In J.K. Dhawan v. Batra Hospital and
Medical Research Centre and Anr23., it was found that the main purpose of the advertisement issued
by the hospital was to bring to the notice of the public about technological advancement in treatment
of problems relating to kidney stones without recourse to surgery. As that advertisement neither
talked about success rate nor promised 100% success, the hospital was not held guilty of unfair trade
practice.
17 The Manager, M/s Speed Post Business Office, In re, (2001) 2 CPJ 33 (MRTP). See also, Economic Commercial
Services, re, (1991) CTJ 291 (MRTPC), the respondent courier service had neglected or failed to deliver a packet
containing certain documents to the addressee. The practice was held to be unfair trade practice.
18 Available at http://www.indlawnews.com, accessed on 15th December, 2005.
19 2004 2 CPJ 15 (MRTPC).
20 2004 2 CPJ 579 (MRTPC).
21 DG(I&R) v. Can Fin Homes Limited, (2002) 3 CPJ 1 (MRTPC)
22 (1999) CTJ 360 MRTPC.
23 (1998) CTJ 276 (MRTPC); See also, Dr. O.P. Bagga, re, (1993) 1 CTJ 27 (MRTPC), the respondent advertised
that ‘under his consultation/treatment, height of males and females could be increased by 2 to 5 cms. and upto 10
cms without physical exercise and yoga upto the age of 35 years. However, no technical data was produced before
the Commission to hold the claims false or misleading. Unfair trade practice could not be established; In M/s Sheri
Louise Slimming Centre Pvt. Ltd., re, UTPE No. 48/1984, order on 24.1.1985, the advertisement claimed that the
programme offered at the Centre was the safest way for loss of weight without any drugs, exercises and side-effects,
being internationally tested and based on methods of Dr. Blackburn of Harvard University Hospital at Boston.
Unfair trade practice could not be established.
(iii)
98
Falsely represents any Re-built, Second-hand, Renovated, Reconditioned or Old
Goods as New Goods:
Section 34(A) (1)(iii) covers representations which falsely represent any re-built, second
hand, renovated, reconditioned or old goods as new goods. The provision comes into operation
when the goods are falsely represented as new when, in fact, they are not new. The term ‘ new’ may
suggest the meaning, ‘of recent origin’, ‘of mint condition’, ‘unused’, ‘invention’, ‘novelty’ etc. So,
where the deteriorated goods stored for a long time were sold as ‘new’ goods, the practice would
attract this sub-clause24. In R. v. Ford Motor Co. Ltd.,25 it has been held that the term ‘new’ does
not suggest ‘mint condition’, so when a damage to the goods is so perfectly repaired that the thing
is put back in as good condition as a new things, it can be described as new. The decision has been
criticized. As Harvey and Parry note the ordinary expectation of a buyer is that ‘new’ goods mean
goods which ‘travel’ from production line to retail outlet in pristine condition26. When defective
spare parts, imported from a foreign country are assembled in India and then they are sold as new, it
amounted to an unfair trade practice. In Copy-Max Pvt. Ltd., re27, the respondent falsely represented
that it was selling Panasonic Automatic Plain Paper Copier Made in Japan, whereas actually it was
selling repaired machine as new ones and had no connection with the Japanese concern. It was held
that the company was indulged in unfair trade practice.
In Interfood Limited and Yan Enterprises, re28, the allegation against the respondent was
that it was misleading the consumers regarding the quality of wafers and confectionery items by restamping the old goods with new dates of manufacture for the purpose of sale in the market. It was
held that the action of the first respondent in requiring the second respondent to send some stocks
back to Hyderabad with the ostensible objective of reselling the same to consumers in some other
areas and in not replacing the old stocks with new ones and in compelling its agents to sell the same
in the market, constitutes an unfair trade practice attracting Section 36(A)(1)(iii) of the Act.
In M/s Heels, re29, the respondent by an advertisement published in the Hindustan Times,
offered bargain price upto 50%, for a wide range of footwears, describing the sale as “Bargain
Bonanza” in Fashion Footwear”. It was found that the sale was organised to clear the stocks which
had become out of demand due to old fashion or which were sufficiently old. No discounts were
24
25
26
27
28
29
S.M. Dagar, Unfair Trade Practice under the MRTP Act: Injunction and Compensation (Delhi: Taxation Publishers,
1985), p. 14. See also, D.N. Saraf, Law of Consumer Protection of India (Bombay: N.M. Tripathi Pvt. Ltd., 1995).
(1974) 3 ALL ER 489.
See Harvey and Parry, The Law of Consumer Protection and Fair Trading, 356 (4th Ed. 1992).
(1996) 4 CTJ 283 (MRTPC)., UTPE No. 117/86; In U.S.A., for example, Lumber dealers were barred from
advertising under names such as “California white pine” and ‘western white pine” when the products were inferior
to genuine “white Pine”, F.T.C. v. Vilgoma Lumber Co., 291 US 67 (1934).
(1995) 3 CTJ 204 (MRTPC)., UTPE No. 471/87. See also, Surendrapal Pathak, M/s Escorts Limited, re, UTPE
NO. 78/1985, order on 5.10.1987, A hydraulic pump of the tractor sold by the first respondent dealer found to
be defective, neither defects were removed nor new Hydraulic pump supplied during warranty period, instead
old, renovated pump holding out to be a new one fitted. The practice was held to be unfair trade practice by the
Commission under Section 36(A)(1)(iii) of the MRTP Act 1969.
UTPE No. 24/1984.
99
allowed to fresh stocks which were sold side by side the old stocks. The MRTP Commission held the
advertisement as misleading under sub-clause (iii) of the Section 36(A)(1) of the Act in as much as
the representation by the advertisement was likely to give an impression that fresh and new goods
and not the old goods would carry this reduction in price during the sale period.
iv) Sponsorship, Approval etc:
Clause (iv) of Section 36(A)(1) aims to curb the practice of making any statement which
represents that the goods or services have sponsorship, approval, performance, characteristics
accessories, uses or benefits which such goods or services do not have. The words ‘sponsorship’,
‘approval’, ‘performance’, ‘accessories’ etc. are not defined in the MRTP Act. These expressions
should therefore be given their ordinary dictionary meaning. The word ‘sponsorship’ connotes
and presumes a certain amount of responsibility which the person sponsoring the goods or service
takes. It is therefore, expedient that the claim in a statement or representation is true otherwise such
statement will be misleading or untrue. Similarly, the expression ‘approval’ connotes implied or
express sanction or confirmation of the goods or services. The term ‘accessories’ represents that
goods will be provided with additional items attached to the main goods. This clause will also
attracted where a representation falsely claims to cure any bodily ‘infirmities’ or fails to cure as
per the claim. In M/s Copy Max Private Limited, re,30 the respondent in its advertisement falsely
represented that, he was the sale agent in India, of M/S Matsushita Electric Trading Company
Limited of Japan and was selling ‘Panasonic Automatic Plain Paper Copiers. The Japanese company
confirmed that they never sent any machine manufactured by them to India and the respondent was
not their agent. The machine also did not work satisfactorily as it was assembled in India. It was held
that the respondent’s act to constitute an unfair trade practice.
(v) Sponsorship or Approval claimed by Seller/Supplier:
Clause (v) of Section 36(A) (1) is akin to the previous clause except that the sponsorship,
approval etc. is not with reference to goods or services but with reference to seller himself. This is to
prevent false trading using the goodwill of a reputed manufacturer or seller. Thus where a company
was projecting the State Bank of India as a designated bank and exploiting its goodwill, when in fact
the company had not secured the approval of the Bank in this regard, it would be false representation
as to its approval31.
In the matter of Mehmood Pracha v. 1 M/S Video Master, 2. Bombino Video Pvt. Ltd., 3.
Shemarro Video Pvt. Ltd., 4. Magnum Industries Ltd., 4. Supper Cassettes Industries Pvt. Ltd., 5.
Indian Motion Pictures Producers32, the aforesaid five respondents were representing that the cassettes
30 UTPE No. 117 of 1986, decided on June 4, 1987.
31 Sahara India Saving and Investment Corporation Lucknow: In re, (1988) Comp. cases. 21; In D.G.I.R. v. Usha
International Ltd., UTPE No. 62 of 1987, a representation giving impression that the company’s products carries
ISI mark, whereas of its two products only one carried such mark. Practice held to be unfair trade practice under the
ambit of the Section 36(A) (1)(v) of the Act.
32 (1995) 3 CTJ 135 (MRTPC)., UTPE No. 33/1994.
100
marketed by them to the public and to the consumers were an exact copy of the original censored
celluloid film of the same title. The respondents were affixing on video cassettes a declaration
that the film was an exact copy of the film approved by the Central Board of Film Certification.
Implicit in the representation was a further claim that the Video cassettes of the film did not have any
alternations, additions or excision or any other alternation, when in fact practice prevailing was that
the films were not an exact copy of the original film but the shortened or distorted version thereof.
vi) Artificial Need:
Section 36(A) (1) (v) covers the practice of making a false or misleading representation
concerning the need or usefulness of any goods or services. This clause uses the expression ‘false’ as
well as ‘misleading’. The term ‘need’ here does not refer to ‘necessity’ in the pure economic sense33.
The main purpose of this provision is to protect the interest of the consumers as well as traders.
The trader should not take an unfair advantage of the competitive position and the consumer must
have a free choice and he should not be induced by false or misleading representation. In the case
of Curls and Curves Sliming Centre and others,34 the respondents in the advertisements claimed
the centre was equipped to reduce 8-10 kg of fat from the human body by a revolutionary method
called ‘Cellotherm’. The MRTP Commission instituted enquiry against the respondent upon its own
knowledge or information. It was held that the respondent failed to substantiate the claims made by
it and thus those were false and misleading attracting the provisions of Section 36A of the Act. It
was held that the respondent had indulged in unfair trade practice under the Section 36(A)(1)(vi) of
the Act which was prejudicial to the public interest or to the interest of the consumer or consumers
generally.
vii) Warranty or Guarantee by the Performance or Efficacy:
Clause (vii) of Section 36(A) (1) of the Act covers the practice of giving of any warranty or
guarantee of the performance, efficacy or length of life of a product or of any goods that is not based
on adequate or proper tests. It requires that every warranty or guarantee of the performance, efficacy
or length of life of a product or any goods should be based on adequate or proper test. When such
a warranty or guarantee is not supported by proper test, it will be an unfair trade practice under this
provision. But under this clause no standards or guidelines have been laid down to determine the
nature of the adequate or proper test. In Mini Circuits (A Division of Sanmar) Electronics Corporation
Ltd., re,35 the respondent supplied defective chip capacitors to the applicant through representation
he provided guarantee of performance of the Chip Capacitors which had not based on adequate or
proper test thereof. It was held that the respondent was indulged in unfair trade practice.
S.M. Dagar, Unfair Trade Practice under the MRTP Act: Injunction and Compensation (Delhi: Taxation Publishers,
1985), p.14-15.
34 1998 CTJ 77 (MRTPC), UTPE No. 181/92.
35 (1996) 4 CTJ 300 (MRTPC).
33
101
viii) Misleading Warranties or Guarantees in respect of Goods or Services or Promise
to Replace etc.:
Manufacturers in order to attract customers either make false promise or make promises
with an intention of non-fulfilling them. Section 36(A) (1) (viii) is designed to deal with this kind
of situation. This clause covers the cases of giving warranty or guarantee or promise which is
either materially misleading or there is no reasonable prospect of carrying out it. It also speaks of a
misleading promise to replace, maintain or repair an article or to provide certain service. The basic
difference between this clause and clause (vii) is that, this clause deals with a warranty or guarantee
relating to a product or goods or services, while clause (vii) deals with a warranty or guarantee of the
performance, efficacy, length of life of a product or any goods that is not based on adequate or proper
test. Thus, under clause (vii) the warranty or guarantee must have been made without adequate or
proper test, but under clause (viii) the representation must be materially misleading or that there was
no reasonable prospect of carrying out it. Moreover, clause (vii) is restricted only to the products
or goods and does not apply to services whereas clause (viii) covers services also. Further, a plain
reading of the provision of clause (viii) makes it clear that it pertains to the failure to redeem the
promise to replace, maintain or repair an article during the period of warranty or guarantee. Thus,
in case of failure subsequent to the warranty period, the provision will not be applicable. So this
clause has a wider ambit than the previous clause. In this clause the requirement of the assurance to
be based on adequate or proper tests is missing. This clause covers such promises and guarantees
which are given with intention of not fulfilling them. An advertisement offering life time guarantee
will fall under this clause. In Tropicana Enterprises Limited: re,36 the respondent, which started
trading in Leonard refrigerators in 1991, issued advertisements offering life time guarantee of those
refrigerators to the customers. The representation was prima facie misleading for the warranty
admittedly was only for one year.
ix) False or Misleading Statements as to Price:
Section 36(A) (1) (ix) covers the practice of making any statement which materially misleads
the public concerning the price at which a product or like products or goods or services have been
or are, ordinarily sold or provided. For this purpose, a representation as to price shall be deemed to
refer to the price at which the product, goods or services has or have been sold by sellers or provided
by suppliers generally in the relevant market unless it is clearly specified to be the price at which the
product has been sold or services have been provided by the person by whom or on whose behalf the
representation is made. In Hira Lal Bros. re37, the respondent issued an advertisement representing
(1995) 3 CTJ 203 (MRTPC)., UTPE No. 8/92; In D.G. v. M/S Khaitan Chemicals and Fertilizers Ltd., UTPE No.
215 of 1985 decided on December 17, 1986, advertising announcing the public issue falsely claiming 26% pretax return guaranteed by Government etc., modified advertisement issued excluding representations about returns
on investments; Public issue already closed, unfair trade practice was established; In Parker Pen Co. v. FTC,
149 F 2d 509 (1946)., a company in U.S.A. described its product as “guaranteed for life”. Every buyer thought
that the guarantee was valid up to his life. The company submitted that they referred to the life of the pens they
manufactured. The warranty being capable of misleading was restrained.
37 UTPE No. 4 of 1984, decided on January 29, 1985. See also, In M/s Gupta Jee and Company: re, UTPE No. 58/1985,
36
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that on various textile items the sale discount would be given 50% and above without indicating the
original sale price of the said items. After a detailed investigation it was found that in five items the
discount exceeded 50% but in the remaining seven items the discount was less than 50%, although
in the advertisement, the respondent had categorically stated that the discounts would be 50% and
above. Thus, the discount should not be less than 50% in any case. As a matter of fact, the range of
discount varied from 21 to 65 percent which gives an average of 40% during the sale period and not
even 50%. The Commission held that the respondent was indulged in unfair trade practice.
x) Disparagement of Goods, Service or Trade of Others:
Clause (x) of Section 36(A)(1) deals with the practice of making any statement which
gives false or misleading facts disparaging the goods, service or trade of another person and aims
to prevent the competition between the rival trade practitioners. In such a case, one with intent to
injure another’s business makes a false assertion which disparages the quality of the other’s goods or
services. The false assertion can pertain to almost any fact of another’s trade or business so long as it
is likely to influence the prospective customers. It may be in the form of a direct statement or it may
only indirectly or inferentially disparage the trade or business of another. In Hindustan Lever Ltd.
v. Marico Industries Ltd. and Another38, the respondent issued advertisement both in the press and
on T.V. stating: “when they say plus they mean 42% coconut hair oil and 58% Paraffin and when we
say Parachute we mean 100% coconut oil”, the complainant contended that the two statements not
only misrepresented that their coconut oil contained paraffin but also compared their clinic coconut
hair oil with pure coconut oil of respondents intended to be used as a cooking medium. The MRTP
Commission held that the impugned advertisement might convey an impression to a reasonable
man that the product sold by the complainant was diluted and not pure. It might also convey the
impression that a wrong representation had been made by the complainant while advertising its
products. Hence the practice was held to be unfair. In Colgate Palmolive (India) Ltd. and Another
v. Hindustan Lever Ltd. 39, the respondents launched an advertisement campaign claiming antibacterial superiority to the extent of 102% of new Pepsodent Toothpaste manufactured by them over
the famous or renowned toothpaste or the leading toothpaste. The Commission held that the said
advertisement referred to no other toothpaste than Colgate. The Commission added that to disparage
Commissions order on September 12, 1986, advertisements, representing that “for the first time in Calcutta, you will
have the golden opportunity to buy Sarees at cheapest rate in auction sale, hurry up new stock open”, Held to be
misleading advertisement as to quality and price of the goods.
38 (1999) CTJ 412 (MRTP)., UTPE No. 166/1996. See also, In M/s ACC Marketing Pvt. Ltd., re, UTPE No. 15/1987,
Order dated 1.5.1987, an advertisement made a comparison of “New Magica” with two other brands of Pressure
Cookers, namely “Hawkins” and “Prestige”. Practice was not held to be disparagement, because to attract the
consumers by providing comparative information could not be considered as offending the provisions of the MRTP
Act.
39 (1999) CTJ 412 (MRTP)., UTPE No. 166/1996. See also, In M/s ACC Marketing Pvt. Ltd., re, UTPE No. 15/1987,
Order dated 1.5.1987, an advertisement made a comparison of “New Magica” with two other brands of Pressure
Cookers, namely “Hawkins” and “Prestige”. Practice was not held to be disparagement, because to attract the
consumers by providing comparative information could not be considered as offending the provisions of the MRTP
Act.
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a product a direct reference was not necessary, any illusion or hint by expression, gesture, gimmicks
or words on the basis of any kind of expression showing indirectly the inferiority of the other product
was sufficient to constitute disparagement of the other product. Consequently, an interim injunction
restraining the advertisement was issued. For evaluating the claims and counter-claims of the parties
a three member committee of experts was also appointed.
(2) Bargain Sale, ‘Bait and Switch’ Selling
Section 36(A)(2) covers the practice of making advertising by offering goods at a very
attractive prices popularly known as ‘bargain’ prices but at which the advertiser does not intend
to sell save a very few quantity that is disproportionate to the sell suggested in the advertisement.
Needless to say, the purpose is mainly to attract the consumer to the business premises only to be
told that the goods advertised have been sold out or they are not fit for use etc., and in this manner
‘switch’ him on to the other goods which are costlier. Deliberate disparagement of the advertised
goods so as to steer the consumer to shift his choice to other goods which are costly is an inherent
vice in this type of advertisement. May be the consumer who is switched on to the new product gets
value for his money but the objection is to misleading representation made as to the availability of
goods advertised. The MRTP Act, 1969 does not define ‘bargain sale’ or ‘bait or switch’ selling. It
only defines ‘bargain price’ which means40:
(a)
a price that is stated in any advertisement to be a bargain price, by reference to an
ordinary price or otherwise; or
(b)
A price that a person reads, hears or sees the advertisement, would reasonably
understand to be a bargain price having regard to the practices at which the
product advertised or like products are ordinarily sold.
In order to attract this provision the following ingredients must be satisfied: (i)there must be
an advertisement; (ii) the advertisement may be in any newspaper or otherwise; (iii) the advertisement
must communicate a price to be understood as a bargain price; (iv) the goods or services which are
the subject of such advertisement must not be intended to be offered for sale or supply at the bargain
price or that they are not offered for a period that is and quantities that are reasonable having regard
to the nature of the market in which the business is carried on, the nature and size of the business,
and the nature of the advertisement.
In Smt. Bharati Devi, re41, an advertisement announcing the sale of goods at throw away
40
41
Explanation to clause (2) of Section 36(A).
(1987) 61 Com. Cas. 734 (MRTPC). See further, In Inter Shoppe, re, (1988) 63 Comp. Cas 286 (MRTPC), where
an advertisement was restrained because it purported to offer 50% discount whereas it was offered only on a few
items, no indication of original prices and quality was there. Unfair trade practice was proved; In Hira Lal Bros, re,
UTPE No. 4/1984, order dated 29.1.1985, advertisement representing that on various textile items the sale discount
would be given at 50% and above, investigation revealed that an average of 40% discount given, not even 50%,
advertisement was restrained; In Sunder Jute House, re, UTPE No. 32/1984 Commission’s order dated 6.2.1985.,
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prices without mentioning the quality of goods offered for sale and the duration of the sale period,
held to be unfair trade practice as defined in Section 36(A)(2) of the MRTP Act. In M/s Shellka, re42, a
bargain sale was advertised offering discounts up to 50% in Shirts, Suiting and Shirting etc and only
30% discount was given on shirts while 20 to 58% discount was given on other items. The discount
offered was large enough to prove genuineness of bargain prices. The sale continued even a large
enough period that is over 19 days. The advertisement was not held to an unfair trade practice. In
Jay Engineering Works Ltd. v. Khaitan India Ltd.43, the Commission held an advertisement stating
that the prices as a result of discount were rock-bottom prices was undoubtedly false because in the
preceding months the discount offered was more ranging from Rs. 40 to Rs. 35. Dubious promises
of discount to allure the customers to part with their hard earned money were held to be an unfair
trade practice. The respondent was directed not to issue same or similar advertisements in future to
lure the customers by offering any unreal discount or so called bargain price. In the instant case the
advertisement issued for promoting the sale claimed that Khaitan fans would be sold at ‘rock-bottom
prices’ in the month of August, 1991. The respondent had already given discount of Rs. 40/- in the
prices prevailing on 1st June, 1991 which was subsequently reduced to Rs. 35/- and finally to Rs.
25/- in August, 1991. When there was higher discount in June, customers buying a Khaitan fan in
August, 1991 would not have saved much compared to a customer making purchase a little earlier
with Rs. 35/- as discount.
(3) Offering of Gifts or Prizes and Promotional Contests
Section 36(A) (3) covers two kinds of practices. Firstly, offering of gifts or prizes without
any intention to provide; and secondly, promotional contests like lottery etc. for the purpose of
promoting any product or business interest. Clause 36(A)(3)(a) covers cases where gifts, prizes
or other items are offered with an intention of not providing them or creating an impression that
something is being offered free of charge when it is fully or partly covered by the amount charged in
the transaction as a whole. The word ‘free’ indicates to customer that he is not paying for the item so
an advertisement announcing “Grand Annual Sale 10-50% Off” investigation revealed that 32-50% discount was
allowed on goods which had become old in design/fashion, held not to be false representation under Section 36(A)
(2).
42 1986 Tax LR 1772 (1773) MRTPC. See also, In M/s Dayal Novalties (Family trust) and others, re, UTPE No.
33/1985, order dated 24.2.1986 advertisement announcing exhibition - cum - sale of textiles without mentioning
the period of sale and quality of goods offered for discount sale, commission directed the respondent to abide by
the undertaking and that in future the period of sale should be resonable having regard to the nature of the market
in which the business was carried on; In M/s Heera Silk House, re, UTPE No. 32/1985, Commissions order dated
26.2.1986., advertising announcing Ugadi Bumper Sale of textile goods without indicating their quality although
sale was organised to clear old stock, respondent under took to mention in future the period and quality of goods
offered for sale.
43 (1994) 2 CTJ 146 (MRTPC), UTPE No. 122/1991 and 137/1994. See also, Polar Industries Ltd. v. G.R. Luthra,
(1987) 61 Comp Cas 805, (MRTPC), an advertisement offering off season discount on fans calculated in reference
to future and not present prices has been held to be unfair trade practice, In Shri Govind Jha, re, UTPE NO. 26/1984,
Commissions’ order dated 27.6.1986., a misleading advertisement announcing discount sale captioned as “GovindKa-Hangama” in various hotels representing the sale to be of housing and export quality garments at throw away
price”, held to be unfair trade practice.
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offered. Thus when an item is offered ‘free’ along with another item, the purchaser would be right to
presume that the cost of the former item is not charged to him. Where the sale price of the later item
is ‘marked up’ to include the cost of the former also, use of the word “free” would be deceptive. In
order to remove confusion all terms and conditions as well as obligations if any should be attached to
the offer and must be set out clearly and conspicuously ‘at the outset’ of the offer. Again ‘free offer’
in connection with introduction of a new product or service should be avoided. This clause covers
the cases where prizes as stated in the advertisement are not offered to the winners of a contest,
especially when the circumstances of the case suggest that there is no reasonable prospect of the
prizes being given to the winners44.
In Nirma Industries Ltd. v. Director General of Investigation and Registration45, the
appellant floated a scheme of awarding and distributing of prizes through lottery under which the
appellant placed a coupon bearing a number in one kg pack of detergent/washing powder. It was
alleged that the appellant did not inform the customer as to in which newspaper the results would be
published; the appellant company had increased the price of the detergent along with prize scheme;
that this trade practice of offering prizes would lead to excessive purchases and consumption by the
customers in the expectation of getting prizes resulting in loss to the consumers; that the condition
of the coupon is so bad that while opening the bag it would get torn and the winner will have to
face difficulty in getting the prize and that it had deleterious impact on competition in as much as
extraneous consideration other than the quality and the price of the product. The commission found
that the charge against the company under Section 36(A) (3) (a) of the Act was proved. However, the
Supreme Court quashed and set aside the order of the Commission and remitted the matter back to
the Commission for a fresh disposal in accordance with law after giving an opportunity to both the
parties to lead such evidence as they deems fit for two reasons. Firstly, the only material on which
the commission passed the impugned order was the complaint of the Director-General. Secondly, the
order passed by the Commission under Section 36(D) attracts the penal consequence.
Cost of participation in the advertised scheme, price increase of the item to be purchased for
participation in the gift scheme etc. seems to be crucial to bring it with the category of unfair trade
practice. In Khaitan Electrical Ltd., re46, a scheme ‘Great Fans – Great Gifts Coupon’ covering a
wide range of gifts items of unequal valuation were offered and in lieu of which purchaser was asked
to pay Rs. 13/- extra. It was held to be an unfair trade practice.
Clause 36(A) (3) (b) declares a practice which is the conduct of any contest, lottery game
of chance or skill for the purpose of promoting directly the sale, use or supply of any product or
44 Usha Electronics, New Delhi and others: In re, UTPE No. 55 of 1984 decided on 21.5.85. See also, In Kochal Oil
Mills, Delhi, re, UTPE No. 53 of 1985 decided on 01.12.1987, an advertisement issued carrying the caption ‘Pakwan
Super - Prize Contest’ held to be material misrepresentation as it was, caused loss or injury to the Consumer as the
offer of gift not intended to be provided as advertised.
45 (1997) 2 CPJ 10 (SC). See also, In Director (Research) v. Power Packer Systems, (2002) 3 CPJ 94 (MRTPC), the
respondent issued a gift scheme. It was alleged that the cost of gift intended to be included in price of motorcycle,
price increased related to scheme; injury caused to consumer. However, the allegations could not be proved.
46 UTPE No. 15 of 1986.
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any business interest to be unfair trade practice. As held by the Commission, the fact of whether the
scheme was being financed through price increase or through the profits earned was not relevant to
the determination of the existence of an unfair trade practice in the cases of contest, lottery or game
of chances or skill. Lucky draws or contests in the nature of lottery will be regarded as an unfair trade
pratice. The anti-competitive features of a scheme will also make it an unfair trade practice. As noted
by the Commission in Society for Civil Rights, New Delhi v. Kothari Chemicals, Kanpur47, the term
lottery is a sort of a device to induce a party to buy worthless things against their better judgment and
with no return.
Four elements are necessary to constitute a lottery48: (i) prize or some advantage in the
nature of a prize; (ii) distribution by chance ;( iii) consideration paid or promised; and (iv) risk of
loss. However, the risk of loss is not relevant here, as it has already been dropped from the definition
of unfair trade practice. When a prize scheme is announced to buyers of certain goods carrying a
coupon with a ticket number and prize is awarded to the holder of a lucky ticket number chosen in a
lot, Section 36(A) (3) (b) of the Act would not be attracted49.
The MRTP Commission restrained a scheme sponsored by Colgate Palmolive (India) Ltd.50,
The scheme induced the contestants to buy a minimum of two Trigard toothbrushes to enable him to
participate in the contest. If he wanted to send in more entries, he had naturally to purchase greater
number of toothbrushes. The “early bird’ prizes awarded for entries received early had nothing to
do with the skill. It was a matter of choice as to whose entry reached early. This was purely in the
nature of a lottery. The fact that a large number of persons were persuaded to part with their money
in the hope of getting some prizes was not in public interest. Anything which deprives consumers of
their money in order to get something which they do not need for the time being or do not need in the
number which they are persuaded to buy causes injury and also had capacity to cause injury. So, the
Commission concluded that the whole scheme was a device for promoting sales at public cost and
held it to be or unfair trade practice.
In another case advertising issued by the respondent offering winning of different cars free
of cost for which application were floated, the prospective applicant had to fill a form and can win
the said car. The complainant won second prize but promises made in the advertisement were not
fulfilled the act of the respondent was held to constitute an unfair trade practice51.
(4) Non-compliance of Prescribed Standards
The fourth category of unfair trade practice is related to non-compliance of prescribed
47 UTPE No. 1 of 1985, ordered dated 11.1.85.
48 Shesha Ayyar v. Krishna Ayyar AIR 1936 Mad. 225 (FB).
49 Society for Civil Rights, New Delhi v. Kothari Chemical, UPTE No. 1 of 1985.
50 Society for Civil Rights v. Colgate Palmolive India Ltd., (1991) 72 Com cas 80 (MRTPC). See also, In DG(I&R)
v. Coca Cola, (2002) 3 CPJ 72 (MRTPC), an advertisement about Coca-Cola “Red hot Summer Contest” in which
the participation was not subject to price or purchase of product was not held to be an unfair trade practice.
51 2004 3 CPJ 1 MRTPC.
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product safety standards. Such standards have been set forth in a number of legislations such as the
Food Safety and Standards Act, 2006 and the Bureau of Indian Standards Act, 1986 etc. Standards
have also been prescribed with respect to agricultural produce under the mark AGMARK. These
standards are generally voluntary. Section 36(A)(4) of the Act would rope in cases where goods
are sold for use or likely use by consumers knowing or having reason to believe that they do not
comply with standards prescribed by some competent authority. The prescribed standard may relate
to performance, composition, contents, design, construction, finishing or packing as are necessary to
prevent or reduce the risk of injury to the person using the goods. Even where a person does not know
it is sufficient if he has reason to know that sales are being so made. For instance unauthorised use of
I.S.I. Mark (Certification mark) on the goods or any other mark not permitted by State Government
would be hit by this clause.
For the purposes of this clause the expression ‘risk of injury’ means physical injury to the
person rather than any financial injury. It may be noted that this clause differentiates between ‘loss’
and ‘injury’. Its language shows that the legislature wanted to prevent a practice which involved the
risk of injury to the person using goods and not the possibility of economic loss to consumer. As
observed by the Commission, the object of Section 36(A) (4) is to protect a consumer from injury
caused by reason of inferior product or commodity which does not satisfy the prescribed standard.
Accordingly the Commission has adopted the view that there is no risk of injury when the contents are
less in weight or quantity than that mentioned on the packing. Thus the marketing of tomato ketchup
in bottles of 400 gms against the quantity of 500 gms prescribed under the Standards of Weights and
Measures (Packaged Commodities) Rules, 1977, does not amount to an unfair trade practice52. In
Food Specialties Ltd., re53, the allegation was that under the packaging rules the maximum margin
of error in quantity could be only 9% whereas, in the present case it was 20%. It was not declared as
unfair trade practice by the MRTP Commission.
(5) Hoarding, Destruction or Refusal
Section 36(A)(5) of MRTP Act prohibits, hoarding or destruction of goods, or refusal to sell
the goods or to make them available for sale, or to provide any service, if such hoarding or destruction
or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or
service. Section 36(A)(5) seems to be unique in as much as hoarding or destruction of goods is not
recognized as an unfair trade practice under the laws of Australia and Canada. It also goes beyond the
recommendations of the Sachar Committee by including services within its ambit. In Sainik Service
Station v. Dr Badri Prasad Purohit,54 the refusal to supply petrol to a person who comes to the pump
with his vehicle has been held to be a consumer wrong hence unfair trade practice.
52 DG (I&R) v. Food Specialties Ltd. (1987) 62 Com. Cas 122 MRTPC.
53 (1991) 71 Com. Cas 564 MRTPC.
54 (1992) I CPJ 432.
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Appraisal of the Performance of the MRTP Commission
It is clear from the foregoing discussion that the object of unfair trade practice provisions
of the MRTP Act was to bring honesty and truth in the relationship between the manufacturer and
the consumers. These provisions imposed a legal duty on the manufacturers, sellers, distributors and
dealers to deal fairly without adopting unfair trade practice. In the beginning the definition of unfair
trade practice was in the form of a list of categories of unfair trade practices and hence was not
inclusive or flexible but specific and limited in its contents. After an amendment made in 1991 unfair
trade practice became a general concept and the listed practices became a category of illustrations.
As a consequence of that remarkable change in the definition of unfair trade practice took place.
Anything which was an unfair method or a deceptive practice for the purpose of promoting sale
might amount to an unfair trade practice whether it could fall in the list practices or not. With such
a flexible and inclusive definition of unfair trade practice the MRTP Commission had a lot of space
to recognize new forms of unfair trade practices but our survey of its decision shows that it had not
utilized this opportunity to do so and instead decided cases as if the contents of definition of unfair
trade practice were confined and limited to a list of categories of unfair trade practice. It is also clear
from the decided cases that the Commission has adopted a reasonable man’s general impression
test for determining whether a particular act should be condemned as an unfair trade practice or
not, and considered the impact of representation on the minds of a reasonable buyer as a criteria
for making such determination. Consumer needs protection not only against false advertisements
but also from such advertisements which though not false but are misleading, but to our dismay
the Commission has generally read these two forms conjointly restricting the scope of definition
of unfair trade practices. With the result that protection of the Act has been denied to consumers
in some of the cases. Another ominous development from the standpoint of consumer protection is
the resurrection of the requirement of ‘loss or injury’ to the consumers as an element of unfair trade
practice by the Supreme Court and MRTP Commission in disregard of the legislative intent which is
a serious offence to the letter and spirit of Section 36(A) of the MRTP Act. In consequence the ambit
of the definition of unfair trade practice has been severely curtailed.
Turning to the interpretation of listed unfair trade practice, the Commission has by and
large adopted what one may call a literal rigid and technical approach in the construction of the
relevant statutory provisions and at times is seen influenced by the approaches and decisions of the
Federal Trade Commission of the USA and in the process has let a golden opportunity to develop an
indigenous jurisprudence on unfair trade practice to go. This view is supported by the decisions of
the MRTP Commission in cases involving non-compliance within prescribed standards or bargain
sale etc supported this observation.
One possible reason for the reluctance of the Commission to show judicial restraint in the
interpretation and application of the relevant statutory provisions is the very status of the MRTP
Commission which was not a court much less a constitutional court which had writ jurisdiction and
immense constitutional power to enlarge the ambit of Fundamental Rights. Second possible reason
might be the desire of the Commission to show itself as an impartial, neutral and sincere arbiter in the
109
cases involving unfair trade practice of rival manufacturers. In this respect it is important to note that
most of the cases decided by the Commission were brought before it either by rival manufacturers or
Director General (I&R) and due to accessibility problems consumers’ cases had been very limited in
number.
The Commission has made a valuable contribution to the development of our understanding
of legal issues relating to unfair trade practices. It has taken the view that the standard or quality of
the products is a matter for the subjective judgment of the producer and all that the law expects from
him is that the facts on the basis of which a subjective judgment is passed must be true and must
not be misleading. In the Commission’s view what makes a practice unfair is its anti-competition
or anti-consumers’ feature and not loss or injury to the consumer. Therefore a practice which does
not disparage the good, services and trade of another or gives false or misleading facts should be
regarded permissible because as a medium it promotes competition rather than hinders it. On this
view advertisement is a subject matter to be decided by the advertiser rather than the Commission.
Considering that advertising is a well recognized marketing strategy the extent of advertisement
required in a particular field or for a particular product naturally depends upon the nature of the
field and the nature of the product and no else other than the advertiser is in better position to take
decision as to where and how much it should advertise. All that the law expects from him is that
representation made in the advertisement should correspond with the actual facts.
The Commission’s decisions on the use of sponsorship, approval, artificial need, warranty or
guarantee not only explained the legal issues involved in such cases but also showed the ingenuity
of the manufacturer or seller to dupe the ordinary consumers by attractive but at the same time with
deceptive or fraudulent advertising.
The Commission has taken a serious view of the conduct of contest, lotteries, and games
of chances or skill and held that the scheme in the nature of a lottery is unlawful. As for contest it
has held that where the content is injurious to great number names of person than to benefit and the
money spent on the contest could have been used more beneficially and spreading the cost and which
deprives consumers of their money in order to get something which they do not need for the time
being or do not need in the number which they are persuaded to buy are unfair, anti-competition and
anti-consumers practices and therefore should be restrained and discouraged. Similarly, where false
impression is given as to comparative prices the scheme should be viewed as unfair.
It is evident from the survey of the decisions of the MRTP Commission that the type of
practice which could be condemned as unfair trade practice was the practice which made prospective
purchaser to believe that they would be getting a great deal in term of price if they buy the product
in question. In one case the seller of goods was ordered to refrain from advertising his products for
sale by use of a price comparison in which the actual price was compared to higher regular price of
manufacturer’s price list55.
Interestingly in enacting this ruling the Commission has guided by the ruling of United
55 Polar Industries Ltd. v. G.R. Luthra, (1987) 61 Com Cas 805 (MRTPC)
110
States Federal Trade Commission in which the later held that it was safety to refer to the regular price
unless the defendant had usually shows the item at that price. The MRTP Commission has time and
again exposed the falsity of two for the price of one offer and educated the public at large against
the use of the commercially exploitative words like ‘free’. But it has failed to develop detailed
guidelines against defective pricing, a task which has been successfully accomplished by Federal
Trade Commission of USA.
The MRTP Commission established under the MRTP Act was the sole adjudicating machinery
to deal with the cases of unfair trade practices during 1984 to 1993. Thereafter the consumer fora
established under Consumer Protection Act were also vested with the power to deal with the cases
of unfair trade practice. Since the consumer forum at its lowest tier is available in the district
headquarters proximate to the consumers place of residence, the procedure applied by it is simple
and the process of adjudication is relatively inexpensive and speedy, it is now more convenient for
consumers to knock at the doors of District Consumer Forum or even the State Commission rather
than to knock at the doors of MRTP Commission which has its office only at Delhi. For the reason
the Commission has not been approached much by the consumers in a number of cases since 1993.
So far as the grievances regarding unfair trade practices are concerned.
There are other factors which continue to inhibit the Commission in the exercise of its powers
relating to regulation of unfair trade practices. Firstly, difficulty relates to the problems confronted
by the Commission in the enforcement of its orders and the delays involved in execution of such
order through civil courts. Although the Act provided for penal sanctions against non-compliance of
the Commission order relating to unfair trade practices56, it has no power to try the trader or a person
who fails or omits to comply with its order. It is for a criminal court not inferior to that of Court
of Sessions to try an offence under the MRTP Act. Secondly, no court shall take cognizance of any
offence punishable under this Act except on a report in writing of the facts constituting such offence
made by a person who is a public servant as defined in Section 21 of India Penal Code. Thirdly, it
has been observed that in cases where ‘cease and desist’ order57 is passed by the Commission, the
Commission generally treat the matter as closed after affidavit giving assurance of compliance of
the order is filed. Fourthly, although the Commission has power under Section 13(a) of the Act to
authorize DG(I&R) or any officer of the Commission to make an investigation into the matter of
non-compliance of its orders and on receipt of a report from them to take such action in the matter as
it may think fit, it is not clear what possible action the Commission could have been taken to ensure
the compliance of its orders except to refer the matter to take a competent criminal court or initiate
56
Section 50: A person who is deemed under Section 13 to be guilty of an offence under this Act shall be punishable
with imprisonment for a term which may extend to 3 years, or with fine which may extend to fifty thousand rupees,
or with both, and where the offence is a continuing one, with a further fine which may extend to five thousand rupees
for every day, after the first during which such contravention continues.
57 Like the US Federal Trade Commission, the MRTP Commission also has power to pass a “cease or desist” order,
though the term “cease and desist” order is nowhere used in the Act. The Act only says that “if, after the enquiry, of
any unfair trade practice, the Commission is of the opinion that the practice is prejudicial to the public interest or
to the interest of any consumer or consumers generally, if may by order direct that the practice shall be discontinued
or shall not be repeated
111
contempt proceeding against the non-compliance party. So far as contempt proceeding is concerned
only one reported case has come to our knowledge58.
The scope of relief that the Commission could grant under the MRTP Act was limited
and encompasses only “cease and desist” order, award of compensation or grant of temporary
injunction. It did not include “affirmative disclosure”59, “corrective advertising60”, “competitor law
suit”61, “fencing in”62, “advertising substantiation”63 and “counter advertising”64, etc. Although the
Commission has the power to direct the party against whom a complaint has been made that any
information, statement or advertisement relating to such unfair trade practice shall be disclosed,
issued or published, as the case may be in such manner as he specified by it in the order, it falls short
of the requirement of corrective advertising. The Consumer Protection Act by contrast has power
to direct the opposite party to issue corrective advertising to neutralize the effect of misleading
advertisement at the cost of opposite party responsible for issuing such advertisements.
Though Commission has power under Section 13(3) of the MRTP Act to make the applicability
of its order to the trade as a whole it has been reluctant to exercise this power for reasons known to
it alone.
The fact that the Act is not applicable to Government owned or controlled undertaking also
restricts the powers of the Commission to deal with unfair trade practices. Similarly, the Act does not
have any extra-territorial application. In consequence the Commission can deal with only that part of
the unfair trade practice which is practiced in India. The Commission lacked the real judicial set up
and its staff strength on many occasions had been deficit both quantitatively and qualitatively.
58 Indian Directories Ltd. v. H.S. Billimoria, 2004 2 CPJ 11 (MRTPC).
59 “Affirmative Disclosure” recognized as a remedial technique under FTC Act of USA. If an advertisement has
provided insufficient information to the consumer, this technique may be used. It requires “clear and conspicuous”
disclosure of the omitted information.
60 Advertisements or messages within advertisements, that the FTC orders a company to run for the purpose of
correcting consumers’ mistaken impression created by prior advertising
61 “Competitor Lawsuits” is another remedy under which a firm has a liberty to charge that false advertising has
caused them damages. The Lanham Trademark Act, 1946 of USA has been broaden to provide basis for suits in
which a competitor has been disparaged in a comparative advertising.
62 “Fencing In”, the technique enables FTC to bar misleading advertisements with respect to a particular product and
across all of a business’s other unrelated product lines. For example, a testimonial constituting false advertising
regarding product A could led purchases to believe that product B & C must also be great. In that case, the FTC
could bar the use of the advertisement for products A, B and C.
63 “Advertising substantiation”: The FTC and substantiation programme requires leading manufacturers in various
industries to submit proof that advertising claims with respect to safety, performance, efficacy, quality or comparative
price be submitted to FTC. It can also compel advertisers to engage in tests or studies to support claims if such
evidence did not exist. It has two effects (i) it can act as a deterrent to prevent advertisers from making false claim,
and (ii) it can give consumer useful information.
64 “Counter Advertising” is another technique which has been used in the United States for rebutting claims made
by commercial interests. In United States public interest groups, taking advantage of the fairness doctrine used
television and radio broadcasting to get their views broadcast. It has been particularly used against cigarette
advertising and television commercials for high powered cars.
112
Conclusion
Despite statutory limitations and practical difficulties mentioned above the Commission has
done its best to provide relief to the consumers against unfair trade practices and other prohibited
practices like Restrictive Trade Practice and Monopolies Trade Practices through its remarkably
decisions. Not only it provided relief to those who approached it but also created awareness among
the people against the deleterious impact of false or misleading representations and practices of
bargain sale and “bait and switch”. But the most important contribution of the Commission was the
development of unfair trade practice jurisprudence in our country. Since now there is a total overlap
of in the jurisdictions of MRTP Commission and Consumer Forums set up under the Consumer
Protection Act in regard to curbing of unfair trade practices, jurisprudence developed by the former
should be proved helpful to the latter in the handling of case relating to unfair trade practices.
In conclusion, though after coming into force of Competition Act, 2002 the MRTP Act and
Commission became a thing of past, the contribution that the MRTP Commission has made as the
High Court of Consumers when the very idea of Consumers’ Rights and the redressal of Consumers’
grievances through quasi judicial tribunal was only at the theoretical and conceptual stage in this
country, has immortalized this institution in the legal history of this country.
*****
113
The Vantage Point: Clash Between Minimum Wages Act, 1948 and
the Mahatma Gandhi National Rural Employment Guarantee Act,
2005
Dr. Uday Shankar1*,
Saurabh Bindal2**
Nakul Batra3***
Prelude:
Minimum Wages Act, 1948 provides for the fixation and renewal of the minimum wage
structure.4 National Rural Employment Guarantee Act, 2005 provides for the fixation of a wage
rate quite different from that prescribed by the Minimum Wages Act, 1948.5 In a recent judgment,
the Karnataka High Court upheld the applicability of minimum wage rate structure as applied
under the Minimum Wages Act to the National Rural Employment Guarantee Act. This has taken
the government on a back foot.6 As an aftermath, Government filed a special leave petition at the
Supreme Court of India. The bench of the Supreme Court turned down the application for stay, filed
by the government, in favour of the judgment rendered by the Karnataka High Court.7 The leitmotif
of this article is not to regurgitate the demerits of the National Rural Employment Guarantee Act.8
Instead, this article stands as a lightening rod for those who argue against the implementation of
minimum wage structure under the head of the National Rural Employment Guarantee Act.9 The
Assistant Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology,
Kharagpur, India.
2 ** Advocate
3 *** Advocate
4
“An Act to provide for fixing minimum rates of wages in certain employments.” Preamble, Minimum Wages Act,
1948.
5
Section 6 of the Mahatma Gandhi National Rural Employment Act, 2005 provides that “( 1) Notwithstanding
anything contained in the Minimum Wages Act, 1948, the Central Government may, by notification , specify the
wage rate for the purpose of this Act: Provided that different rates of wages may be specified for different areas.
Provided further that the wage rate specified from time to time under any such notification shall not be at a rate less
than sixty rupees per day. (2) Until such time as a wage rate is fixed by Central Government in respect of any area
in a State, the minimum wage fixed by the State Government under section 3 of the Minimum Wages Act, 1948 for
agricultural labourers, shall be considered as the wage rate applicable to that area.”
6 http://www.firstpost.com/politics/nrega-faceoff-pm-in-favour-of-minimum-wages-jairamdisagrees-190649.html, Last visited on 19th February 2012.
7 http://articles.economictimes.indiatimes.com/2012-01-24/news/30659392_1_minimum-wages-actwage-rates-higher-wages, Last visited on 19th February, 2012; see also http://expressbuzz.com/opinion/
editorials/mgnregs-must-conform-to-minimum-wage-laws/356665.html, Last visited on 19th February 2012.
8 http://www.business-standard.com/india/news/mgnrega-creating-dearthfarm-labour/464486/,
Last
visited on 19th February, 2012; see also http://expressbuzz.com/nation/corruption-in-mgnrega-cannot-beignored/359490.html, Last visited on 19th February 2012.
9 http://www.business-standard.com/india/news/two-different-things/462816/, Last visited on 19th February,
2012.
1
*
114
authors here endeavour to pen down a possible solution for the ongoing debate.10 The authors here
take a constitutional justification for the stand taken by the Karnataka High Court.11 The government,
being the agency for implementing minimum wages, cannot itself violate minimum wages.12
Legislative protection for workers to receive a minimum wage can be considered as the hall mark of
any progressive nation.13 In India, the term wage14 has been defined under various legislations.15 This
article aspires to shed light on the importance of minimum wages structure in India and the need of
its reconciliation with the Mahatma Gandhi National Rural Employment Scheme.
Minimum Wages under the Minimum Wages Act, 1948:
The proclamation of “shining India” loses its sheen when one tries to trace the march of this
country from its genesis till date. Poverty, population, rich-poor divide are some of the widely used
terms in the current century. The employment structure in India can be categorized under two broad
heads: the organized and the unorganized sector. Despite the tremendous growth, promulgated by
some, India has shown a tepid interest in maintaining the needs of the two sectors at par with each
other.16 The wage structure in the organized sector is an outcome of round table negotiations and
settlements between the employer and the employee. Whereas, the unorganized sector, due to lack of
bargaining power and widespread illiteracy, finds shelter in the wisdom of government in defining a
wage structure.17
10 http://www.downtoearth.org.in/content/supreme-court-order-triggers-nregs-wage-debate, Last visited on
19th February 2012.
11 Additional Solicitor General Indira Jaising is of the opinion that the payment of wages below the minimum wage
would amount to forced labour. See T.K. RAJALAKSHMI, Wages of tokenism, Frontline, Volume 28 - Issue 03 Jan.
29-Feb. 11, 2011. http://www.frontline.in/fl2803/stories/20110211280311500.htm.
12 Sanjit Roy v. Government of Rajasthan, AIR 1983 SC328.
13 See Minimum Wages India – Current Minimum Wage Rate India, http://www.paycheck.in/main/
officialminimumwages, Last visited on 19th February 2012.
14 In principle, “wages” refers to gross earnings, therefore wages differ from employees’ disposable take-home pay
(which is what remains of wages after taxes, pensions and social security contributions and other deductions),
see OECD, EARNINGS (WAGES AND SALARIES) – ILO, http://stats.oecd.org/glossary/detail.asp?ID=704,
Last visited on 19th February 2012; see also S J Tubrazy, Law Defines Wages, http://www.bukisa.com/
articles/369019_law-defines-wages, Last visited on 19th February 2012.
15 See The Minimum Wages Act, 1948 (To provide minimum compensation for work. Workers in scheduled
employment to be paid minimum wage) , The Trade Unions Act, 1926 (To enable workers of a number of small units
to form unions, who can bargain wages and other condition of work.) , The Industrial Disputes Act, 1947 (To enable
unions to raise industrial disputes on wages and the conciliation machinery to intervene.), The Equal Remunerations
Act, 1976 (Assure equal wage to women for same or similar work.), The Payment of Wages Act, 1936 (To regulate
the manner of payment of wages and their realisation in case of non-payment.) , The Contract Labours (Regulation
and Abolition) Act, 1970 (The contractor is required to pay wages and in case of failure on the part of the contractor
to pay wages either in part or in full, the Principal Employer is liable to pay the same.).
16 India’s Runaway ‘Growth’: Distortion, Disarticulation, and Exclusion, Aspect of India’s Economy, (Nos. 44-46,
April 2008), http://rupe-india.org/44/links.html, Last visited on 19th February 2012.
17 Prof. BijuVarkkey and Khushi Mehta, Minimum Wages in India: Issues and Concerns, http://www.paycheck.in/
root_files/080415_minimum_wages_in_india.pdf, Last visited on 19th February 2012.
115
The Minimum Wages Act, 1948 draws its premise from Article 4318 of the Constitution of
India. The Act was passed with a motive to provide a level playing filed to workers working in the
un-organized sector.19 It overcame this by prescribing a minimum wage limit to delimit the disparity
between the wages accrued to workers in the un-organized sector.20 The objective of the Act is
to secure minimum wages to workers who lack bargaining power.21 The purpose of the Minimum
Wages Act is to ensure a minimum subsistence wage for workers.22 The Act requires the appropriate
government to fix minimum rates of wages23 in respect of employment specified in the schedule
and review and revise the minimum rates of wages at intervals not exceeding five years.24 Once a
minimum wage is fixed according to the provisions of the Act, it is not open to the employer to plead
his inability or incapacity to pay the said wages to his employees.25 The importance of minimum
wages can be determined from the very fact that minimum wages are not considered as fair or living
wages.26 They just act as a first rung to the ladder of wage structure.
18
Article 43 of the Constitution of India states that “The State shall endeavour to secure by suitable legislation or
economic organisation or in any other way to all workers, agricultural, industrial or otherwise, work, a living wage
(emphasis added) conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and
cultural opportunities.”
19 Panihati Municipality v. Secretary, PMLW Union, AIR 1965 Cal. 229.
20 SeeLabour Department, Government of Delhi; The concept of minimum wages first evolved with reference to
remuneration of workers in those industries where the level of wages was substantially low as compared to the wages
for similar types of labour in other industries. http://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/
Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Minimum+Wages+Act,+1948/
Introduction, Last visited on 19th February 2012.
21 Gazette of India, 1946 at Page 224 explains the objective of the Minimum Wages Act, 1948 as “The justification for
statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even
more necessary in India, where workers’ organisations are yet poorly developed and the workers’ bargaining power
is consequently poor.” http://nceus.gov.in/Report_Bill_July_2007.htm, Last visited on 19th February 2012.
22 BhikusaYamess Kshatriya v. Sengemmer Akola Taluka Bibi Kamgar Union, AIR 1963 SC 803.
23 The Supreme Court in the case of Bijay Cotton Mills Ltd v. The State Of Ajmer, AIR 1955 SC 33 upheld the
constitutionality of the Minimum Wages Act, 1948 holding that “The provisions of ss. 3, 4 and 5 of the Minimum
Wages Act (XI of 1948) empower the appropriate Government to fix the minimum rate of wages in an industrial
dispute between the employer and the employed and it is a criminal offence not to pay the wages thus fixed under
the Act. Held, that the restrictions imposed upon the freedom of contract by the fixation of minimum rates of wages
though they interfere to some extent with the freedom of trade or business guaranteed under Art. 19(1)(g) of the
Constitution are not unreasonable and being imposed in the interest of general public and with a view to carry out
one of the Directive Principles of State Policy as embodied in Art. 43 of the Constitution are protected by the terms
of el. (6) of Art. 19.”
24 Section 3 of the Minimum Wages Act 1948.
25 U.Unichoyi v. State of Kerla, AIR 1972 SC 1721, 1725; see also Crown Aluminum Works v. Their Workmen, AIR
1958 SC 30.
26 “Broadly speaking, the first principle is that there is a minimum wage which, in any event must be paid, irrespective
of the extent of profits, the financial condition of the establishment or the availability of workmen on lower wages.
This minimum wage is independent of the kind of industry and applies to all alike big or small. It sets the lowest
limit below which wages cannot be allowed to sink in all humanity. The second principle is that wages must be
fair, that is to say, sufficiently high to provide a standard family with food, shelter, clothing, medical care and
education of children appropriate to the workmen but not at a rate exceeding his wage earning capacity in the class
of establishment to which he belongs. A fair wage is thus related to the earning capacity and the workload. It must,
116
The fixation of minimum wage in India depends upon various factors like socioeconomic and agroclimatic conditions, prices of essential commodities, paying capacity and the local factors influencing
the wage rate.27 It is for this reason that the minimum wages vary across the country.28 The minimum
wage rate may be fixed at a) time rate, b) piece rate, c) guaranteed time rate and d) overtime rate.29 The
Act provides that different minimum wage rate may be fixed for a) different scheduled employments,
b) different works in the same employment, c) adult, adolescent and children, d) different locations
or e) male and female.30 Also, such minimum wage may be fixed by a) an hour, b) day, c) month, or
d) any other period as may be prescribed by the notified authority.31
In order to protect the minimum wages against inflation, the concept of linking it to the rise
in the consumer price index was recommended at the labour ministers’ conference in 1988.32 Since
then, the concept of Variable Dearness Allowance (VDA)33 linked to consumer price index has been
introduced. The VDA is revised twice a year in April and October. While the Centre has already
made provision in respect of all scheduled employments in the central sphere, 22 states and Union
Territories have adopted VDA as a component of minimum wage.34
27
28
29
30
31
32
33
34
however, be realized that “fair wage” is not “living wage” by which is meant a wage which is sufficient to provide
not only the essentials above mentioned but a fair measure of frugal comfort with an ability to provide for old age
and evil days. Fair wage lies between the minimum wage, which must be paid in any event, and the living wage,
which is the goal.” Kamani Metals and Alloys v. Their workmen, (1967) II LLJ 55 SC.
Labour Ministry of India, Minimum Wages Act Commentary, http://labour.nic.in/wagecell/mwact.pdf, Last
visited on 19th February 2012.
Prof. BijuVarkkey and Khushi Mehta, Minimum Wages in India: Issues and Concerns, http://www.paycheck.in/
Section 3(2) of the Minimum Wages Act, 1948 states that “The appropriate Government may fix-- (a) a minimum
rate of wages for time work (hereinafter referred to as ‘a minimum time rate’); (b) a minimum rate of wages for
piece work (hereinafter referred to as ‘minimum piece rate’); (c) a minimum rate of remuneration to apply in the
case of employees employed en piece work for the purpose of securing to such employees a minimum rate of wages
on a time work basis (hereinafter referred to as ‘a guaranteed time rate’); (d) a minimum rate (whether a time rate or
a piece rate) to apply in substitution for minimum rate which would otherwise be applicable, in respect of overtime
work done by employees (hereinafter referred to as ‘overtime rate’).”
Section 3(3)(a) of the Minimum Wages Act, 1948 states that “different minimum rates of wages may be fixed for-(i) different scheduled employments ; (ii) different classes of work in the same scheduled employment ; (iii) adults,
adolescents, children and apprentices; (iv) different localities.”
Section 3(3)(b) of the Minimum Wages Act, 1948 states that “minimum rates of wages may be fixed by any one or
more of the following wage- periods, namely :-- (i) by the hour,(ii) by the day, (iii) by the month, or (iv) by such
other larger wage- period as may be prescribed, and where such rates are fixed by the day or by the month, the
manner of calculating wages for a month or for a day, as the case may be, may be indicated.”
Report On The Working Of The Minimum Wages Act, 1948 for the year 2006, http://labourbureau.nic.in/
MW2k6%20Section-1.htm, Last visited on 19th February 2012.
While fixing or revising Minimum Wages, Dearness Allowance (D.A) is linked to cost of living index and is called
Variable Dearness Allowance (V.D.A). It is in addition to basic wages so as to neutralise the cost of living.
Prof. BijuVarkkey and Khushi Mehta, Minimum Wages in India: Issues and Concerns, http://www.paycheck.in/
117
Wage rate under National Rural Employment Guarantee Act, 2005:
The Mahatma Gandhi National Rural Employment Guarantee Act was established in year
2005 to provide 100 days of guaranteed wage employment in a financial year to a rural household35
to effectively curb chronic poverty, drought, deforestation and soil erosion.36 It is a right-based law,37
aiming to empower the rural citizenry of the country and emerging as a model of governance reform,
anchored on the principles of transparency and grass root democracy.38 The Act has drawn heavily
from the Maharashtra Employment Guarantee Act, which has been in operation for 30 years.39
The minimum wage rate to be paid to the subjects, under the Act, should be in line with
the object of the Act.40 Section 6 of the Act provides for the fixation of wage rate by the Central
Government.41 It starts with a non-obstante clause for overriding the wage rate as prescribed under
the Minimum Wages Act, 1948. After the enactment of the law, the wages were paid at the rate of
minimum wage as fixed by the State Government under Section 3 of the Minimum Wages Act,
1948 for agricultural laborers. Presently, however, wages have been notified under sub-section (1) of
section 6 of NREGA to be Rs. 100 per day.42 The effect of this fixation is that the minimum wages
under sub-section (2) of Section 6 will cease to apply and all the workmen under the National Rural
Employment Guarantee Act, 2005 will be paid only Rs. 100 per day.43
35 (The employment guarantee programme envisaged under the proposed act will be operational only in rural areas.)
36 The basic frame of reference was provided by the Maharashtra Employment Guarantee Act 1977, which provides
for guaranteed provision of work to every adult in rural areas of the state for any number of days demanded, under
certain conditions. T.S. Papola, A Universal Programme is Feasible,Employment Guarantee, http://www.jstor.
org/stable/4416188, Last visited on 19th February 2012.
37 NREGAsoft : Strengthening National Rural Employment Guarantee Scheme (NREGS), http://nrega.nic.in/
netnrega/iceg.pdf, Last visited on 19th February 2012.
38 NREGA Slides Demo, http://ruraldiksha.nic.in/Data/NREGA%20Demo/player.html, Last visited on 19th
February 2012.
39 Indira Hirway, Providing Employment Guarantee in India: Some Critical Issues, Economic and Political Weekly,
Vol. 39, No. 48 (Nov. 27 - Dec. 3, 2004), pp. 5117-5124, http://www.jstor.org/stable/4415835.
40 Preamble of the National Rural Employment Guarantee Act, 2005 states that “AN Act to provide for the
enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred
days of guaranteed wage employment in every financial year to every household whose adult members volunteer
to do unskilled manual work and for matters connected therewith or incidental thereto.”; see also T.S. Papola, A
Universal Programme is Feasible,Employment Guarantee, http://www.jstor.org/stable/4416188, Last visited on
19th February 2012.
41 These sections of NREGA must be read in conjunction with Section 22, which states that “the Central Government
shall meet the cost of… the amount required for payment of wages for unskilled manual work under the Scheme”.
The Rational Rural Employment Guarantee Act 2005 (NREGA), Operational Guidelines 2008, http://nrega.nic.in/
Nrega_guidelinesEng.pdf, Last visited on 19th February 2012.
42IndraJaisingh, NREGA and the Minimum Wages Act (Legal Opinion), http://bourgeoisinspirations.files.
wordpress.com/2011/01/indira-jaisings-legal-opinion-on-minimum-wage.pdf, Last visited on 19th February
2012.
43 It may be noted that minimum wages vary from state to state. The highest rate appears to be in Kerala. Delhi
Government has also fixed the minimum wage rate for semiskilled agricultural workman and Rs. 245 for skilled
agricultural workman with effect from February 2, 2010. Wages, Chapter 5, Ministry of Labour, http://labour.nic.
118
Clash of Titans:
Legal standards are inherently vulnerable to the substantive limitations of language.44 The
matter in each case is of the construction and comparison of two statutes.45 The necessary questions
to be asked are: Whether there is direct conflict between the two provisions; Whether the Legislature
intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
whether the two laws occupy the same field.46 Coherent reading of both the legislations, suggests
that their lies no conflict between the two. But, as Mahatma Gandhi National Rural Employment
Act was notified in the year 2005, it is pertinent to note that it invites criticism for the inclusion of
the “non-obstante clause” in section 6 of the Act. Section 6 of the act overrides the wage structure
as laid down in the Minimum Wages Act, 1948. As per the principle of interpretation of statutes,
a non-obstante clause is used as a legislative device to modify the ambit of the provision or law
mentioned in the non-obstante clause47 or to override it in specified circumstances48. The expression
‘notwithstanding anything in any other law’ occurring in a section of an Act cannot be construed to
take away the effect of any provision of the Act in which that section appears.49 A special enactment
cannot be held to be overridden by a later general enactment or simply because the latter opens up
with a non-obstante clause. There should be a clear inconsistency between the two before giving an
overriding effect to the non-obstante clause.50
Minimum wages being essential to deprecate the practice of forced labour51, as adjudicated
by the Indian Supreme Court52, time and again, cannot be overlooked by the inclusion of a
“notwithstanding clause”. Fixation of wage structure less than the minimum wage not only fails
to appreciate the concept of minimum wages but also strikes a blow to the Constitution of India.
Constitution of India has been the safeguard of “we the people”.53 The Supreme Court of India, for
in/annrep/files2k1/lab5.pdf, Last visited on 19th February 2012.
44 Louis Kaplow, Rules Versus Standards: An Economic Analysis, Duke Law Journal. 42 (1992) 557, 600 as cited in
Richard D. Cudahy and Alan Devlin, Anti-competitive effect, HeinOnline -- Minnesota. Law Review. 59 95 (20102011).
45 State of M.P. v. Kedia Leather & Liquor Ltd. and ors., A.I.R 2003 SC 3236.
46 Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors., 1998 (1) SCR 157.
47 Pannalal Bansilal Patil v. State of Andhra Pradesh, A.I.R 1996 SC 1023.
48 T.R Thandur v. Union of India, A.I.R 1996 SC 1643.
49 P. Virudhachalam v. Management of Lotus Mills, A.I.R 1998 SC 554.
50 R.S. Raghunath v. State of Karnataka, A.I.R 1998 SC 1388.
51 Article 23 of the Constitution of India states that “1) Traffic in human beings and beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance
with law.(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose,
and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or
class or any of them.”
52 Sanjit Roy v.Govt of Rajasthan, 1983, SCC (1) 525; see also People’s Union for Democratic Rights v. Union of
India, (1982)3 SCC 235.
53 “Constitution is the vehicle of nation’s progress. It has to reflect the best in the past traditions of the nation; it has
also to provide a considered response to the needs of the present and to possess enough resilience to cope with
the demands of the future.” H.R.Khanna, Judge, Supreme Court of India (Retd.) Making of India’s Constitution,
119
this very specific reason, has held that minimum wages should be paid to prisoners who perform
work in jails, notwithstanding that such work is not notified under the Minimum Wages Act, 1948,
as the state would otherwise be guilty of engaging in forced labour.54 In Bandhua Mukti Morcha
v. Union of India55, the Indian Supreme Court said that “…the payment of wage below minimum
wage would amount to forced labour.” Thus being infringement of the fundamental freedoms of an
individual guaranteed under the Constitution of India. The dictum of the Supreme Court in the cited
cases, stand as the Law of the land when read under Article 141 of the Constitution of India. That,
being the case, any transgression from the said Law, not only violates the mandate of Law but also
the Constitution. The executive order of 2009, fixing the minimum rate of wages under National
Rural Employment Guarantee Act, violates the letter of law.56
It is also germane to note that in furtherance to this constitutional mandate, India’s
international obligation to adhere to ILO’s Declaration of Fundamental Principles and Rights at
Work, 1998 that require the government to ensure that there is complete abolition forced labour,
which, as interpreted in India, would mean the payment of minimum wages in all circumstances and
to all categories of workers57, also mandates the protection of minimum wage structure when read in
light of Article 51 of the Constitution of India.
After the Central Government came out with its notification in 2009, the notification was
challenged in Andhra Pradesh High Court58 and the Karnataka High Court59. Both the High Courts
have reasoned their judgment on the fact that minimum wage structure, as laid down under the
umbrella of Minimum Wages Act, 1948 should not be transgressed by the Government in light of the
Mahatma Gandhi National Rural Employment Guarantee Act, 2005.
54
55
56
57
58
59
Eastern Book Company, Second Edition, 2009.
State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC 3164/ (1998) 7 SCC 392.
A.I.R 1984 SC 808.
The unconstitutionality of the 1 January 2009 notification is supported by a legal opinion from Indira Jaising,
Additional Solicitor General, on the validity of Section 6.1, the permissibility of overriding the Minimum Wages
Act, and related matters, sought by the CEGC Working Group on Wages and an open letter signed by 15 eminent
justices and lawyers in support of the campaign. IndraJaisingh, NREGA and the Minimum Wages Act (Legal
Opinion),
http://bourgeoisinspirations.files.wordpress.com/2011/01/indira-jaisings-legal-opinion-onminimum-wage.pdf, Last visited on 19th February 2012.
Jill Ruber, Working Paper on Pay Equity, Minimum Wage and Equality at Work: Theoretical Framework and
Empirical Evidence, International Labour Office, November 2003, http://www.ilo.org/wcmsp5/groups/public/--ed_norm/---declaration/documents/publication/wcms_decl_wp_20_en.pdf
(The recent and landmark judgment of Andhra Pradesh High Court has cancelled the Central Government
notification on the NREGA wages that are lower than the minimum wages revised by AP State Government. On July
3, 2009, the High Court has passed the Judgment to pay minimum wages as per the Minimum Wages revised by AP
government under Minimum Wages Act 1948.) P.S. Ajay Kumar, Secretary, Andhra Pradesh Vyvasaya Vruthidarula
Union (APVVU), AP High Court Upholds Minimum Wages for Agricultural Workers, http://aidindia.org/main/
content/view/986/1/, Last visited on 19th February 2012.
(The High Court of Karnataka on September 23, 2011 has directed the central government to bring these wages on
a par with the minimum wages applicable in the states.) DevikaBanerji, Centre may match NREGA payouts with
minimum wages in states, The Economic Times, http://articles.economictimes.indiatimes.com/2011-10-15/
news/30283542_1_minimum-wages-wage-rate-nrega, Last visited on 19th February 2012.
120
Denouement:
What is essential is that the wage rate should be a need-based minimum wage.60 Unlike the
wage rate that the central government can unilaterally declare under the National Rural Employment
Guarantee Act, the minimum wage under Minimum Wages Act 1948, following court decisions,
should be ensured to acertain minimum of basic needs of food, clothes, housing, educational costs and
social security in order for it to be a “minimum” wage.61 The National Rural Employment Guarantee
Act wage rate must logically be a need-based national minimum wage under the Minimum Wage
Act.
*****
Kamala Sankaran, NREGA Wages: Ensuring Decent Work, Economic and Political Weekly, Vol. 41, No. 7 (Feb. 12,
2011), http://www.righttofoodindia.org/data/nrega_wages_ensuring_decent_work.pdf.
61 Workmen v. Management of Reptakos Brett & Co Ltd, AIR 1992 SC 504.
60
121
Right To Food And Food Security Initiative In Indian Perspective
Dr. Sanjiv Kumar Sinha1*
The Right to Food is a fundamental human right, entitling every person regular access to
sufficient, nutritionally adequate and culturally acceptable food to lead an active, and healthy life.
According to the UN Food Agriculture Organization (FAO) the right to adequate food is not the
‘right to the fed’ it is the right to feed oneself with dignity and it equates the right to adequate
food with food-standards or the right to safe food. In the right to food guidelines the emphasis is
on the quantity, appropriateness and quality of food.2 The UN Special Rapporteur on the right to
food in 2002 defined that Right to adequate food is a human right, inherent in all people, to have
regular, permanent and unrestricted access, either directly or by means of financial purchases, to
quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions
of people to which the consumer belongs and which ensures a physical and mental, individual and
collective fulfilling and dignified life free of fear.3
In India, the right to food campaign launched in 2001 focused its demand to address the
structural roots of hunger since India’s commitments to tackle the problem of hunger and malnutrition
are among the worst.
Dr. Manmohan Singh, our Prime Minister announced in his independent day speech from
the ramparts of the Red fort that “no body will be allowed to go hungry” and Government is now
proposing to legislate “Food as a right”.4
In 1974, Food and Agriculture Organization (FAO) had declared that by 1984” no child,
woman or man should go to bed hungry and no human being’s physical on mental potential should
be stunted by malnutrition”5 Gandhijee6 was one step ahead to emphasize that hunger should be
overcome without eroding human dignity. He wanted every Indian to have opportunity to earn his/
her daily bread. The right to adequate food is realized when every man, woman and child, alone and
in community with others, has physical and economic access at all times to adequate food or means
for its procurement.7
Right To Food: International Perspective
There is increasing recognition worldwide that food and nutrition is a human right, and thus
there is a legal obligation to assure that all people are adequately nourished. The articulation of food
1
2
3
4
5
6
7
Assistant Professor T.N.B. Law College, Bhagalpur-1
FAO 2009, Guidelines on Legislative for the Right to Food, Rome, available at www.fao.org/right to food.
http://www.2ohchr.org/english/issues/food/index.htm
Kurukshtatra, March 2011 p.29
Ibid
Ibid
As defined by the Committee on Economic, Social and Cultural Rights in its General Comment 12
*
122
and nutrition rights in modern international human rights law arises in the context of the broader
human right to an adequate standard of living. The Universal Declaration of Human Rights, 1948
asserts in Article 25(1) that “everyone has the right to a standard of living adequate for the health and
well-being of himself and his family, including food8…….
Food and nutrition rights were subsequently reaffirmed in two major binding international
agreements. Article 11 of the International Covenant on Economic, Social and Cultural Rights,
1966 says that “The States Parties to the present Covenant recognize the right of everyone
to an adequate standard of living for himself and his family, including adequate food, clothing,
and housing…………..” and also recognizes “the fundamental right of everyone to be free from
hunger………..”
In the Convention on the Rights of the Child, which came into force in 1990, two articles
address the issue of nutrition. Article 24 says that “States Parties recognize the right of the child
to the enjoyment of the highest attainable standard of health……….(paragraph 1)” and shall take
appropriate measure “to combat disease and malnutrition……… through the provision of adequate
nutritious foods, clean drinking water, and health care (paragraph 2c)” Article 24 also says that States
Parties shall take appropriate measures…….” To ensure that all segments of society, in particular
parents and children, are informed, have access to education and are supported in the use of basic
knowledge of child health and nutrition (and) the advantages of breastfeeding……” Article 27 says
in paragraph 3 that States Parties “shall in case of need provide material assistance and support
programmes, particularly with regard to nutrition, clothing, and housing”
Even it the human rights to food and nutrition had not been stated directly, if would be
strongly implied in other provisions such as those asserting the right to life and health, or the
Convention on the Right of the Child’s requirement (in Article 24, paragraph 2a) that States Parties
shall “take appropriate measures to diminish infant and child mortality.” The human right to food and
nutrition has been reaffirmed at the international level in many different settings.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
which recognizes the right of pregnant and lactating women to special protection with regard to
adequate nutrition.9
Beginning in the late 1990s, work on food rights at the global level centered on a mandate
from the World Food Summit held in Rome in 1996. In the Summit’s concluding plan of Action,
Objective 7.4 called upon.
8
9
Article 25(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of
his family, including food, clothing, housing and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
Article 12 “The States Parties to the right of pregnant and lactating women to special protection with regard to
adequate nutrition and in article 14 the right of rural women to equal access to land, water, credit and other services,
social security and adequate living conditions
123
…the U N High Commissioner for Human Rights, in consultation with relevant treaty
bodies, and in collaboration with relevant specialized agencies and programmes of the
UN system and appropriate intergovernmental mechanisms, to better define the rights
related to food in Article 11 of the Covenant and to propose ways to implement and
realize these rights…
A series of expert consultations, conferences, and studies steadily clarified the meaning of
the human right to food. This effort culminated with the publication on May 12, 1999 by the UN’s
Committee on Economic, Social and Cultural Rights of its General Comment 12 in its Twentieth
session in 1999...10 highlighting that the roots of the problem of hunger and malnutrition are not
lack of food but lack of access to available food, inter alia because of poverty, by large segments of
the world’s population.” The reference here is to the fundamental distinction between availability
(is there food around?) and access (can you make a claim on that food?)11 This statement by the
committee constitutes a definitive contribution to international jurisprudence. Para 7 of General
Comment 12 explains that adequacy means that account must be taken of what is appropriate
under given circumstances. Food security implies food being accessible for both present and future
generations. Sustainability relates to long-term availability and accessibility. Thus, the core content
of the right to adequate food implies that the availability of food in a quantity and quality sufficient
to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a
given culture, the accessibility of such food in ways that the sustainable and that do not interfere with
the enjoyment of other human rights.12 Paragraph 14 summarizes the obligations of State that every
State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food
which is sufficient, nutritionally adequate and safe to ensure their freedom from hunger. Paragraph
15 draws out the different kinds of levels of obligations of the state to respect13, protect14, facilitate15
and provide16 food. General Comment obligation to provide for them. While international law does
not specify the character or level of assistance that is required, it is clear that, at the very least; people
10
11
12
13
14
15
16
UN Economic and Social Council Committee on Economic, Social and Cultural Rights, substantive Issue Arising
in the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment
12 (Twentieth Session, 1999), The Right to Adequate Food (Article 11) Geneva, available at www.Unhchr.ch/tbs/
doc.nsf/MasterFrameView/ 3d02758c.htm , accessed on 28.03.211
Para 5 of general comment 12, of the report of UN’s Committee on Economic social and Cultural Rights on the
Right to Adequate Food in 1999,
Para 8 of General Comment 12 of the Report of UN’s Committee on Economic, Social and
Cultural Rights on The Right to Adequate Food in 1999.
“The obligation to respect existing access to adequate food requires State parties not to take any measure that result
in preventing such access”
“The obligation to protect requires measure by the State to ensure that enterprises or individuals do not deprive
individuals of their access to adequate food.”
“The obligation to fulfil (facilitate) means the State must pro-actively engage in activites intended to strengthen
people’s access to end utilization of resources and means to ensure their livelihood, including food security.
. “Whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food
by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also
applies for persons who are victims of natural or other disasters.”
124
must not be allowed to go hungry. Paragraph 6 of General Comment 12 explains that States have a
core obligation to take the necessary action to mitigate and alleviate hunger as provided in Article 11
(2) of the international Covenant on Economic, Social and Cultural Rights which recognizes that the
fundamental right of everyone to be free from hunger, even in times of natural or other disasters.”
Paragraph 14 adds that every State is obliged to ensure for everyone under its jurisdiction access
to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their
freedom from hunger. Finally, Paragraph 17 states that violations of the Covenant occur when a State
fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free
form hunger. There is no ambiguity here. Even the Committee on Economic, Social and Cultural
Rights recommends the adoption of a framework law as a major instrument in the implementation
of a national strategy of the right to food.17 Later on the FAO Council adopted the Right to Food
Guidelines (Voluntary Guidelines), a human rights-based practical tool addressed to all States in
November 2004. The FAO Guide on Legislating for the Right to food provides a full analysis of the
optimal content of a right to food framework law.
Recent years have witnessed increased interest in the adoption of framework laws on the
right to food. Such laws are often known as food security laws rather than right to food but the
effect is similar, as long as the right to food is clearly spelled out. The Voluntary Guidelines embrace
three important substantive attribute, or dimensions of the right to adequate food i.e. adequacy18,
availability 19 and accessibility20 which form a sound basis for the development of indicators within
appropriate frameworks. Thus, international commitment to the eradication of hunger was clearly
stated at the 1996 World Food Summit, where Heads of State and Government reaffirmed that the
right of everyone to have access to safe and nutrition food, consistent with the right to adequate food
and the fundamental right of everyone to be free form hunger.
Right To Food: Constitutional Prospective
Preamble of the Indian Constitution promises to secure economic justice to all its citizens.
Naturally, economic justice cannot be secured without giving two square meals to its citizens. The
17
CESCR, 1999, General Comment 12: The right to adequate food (article 11 of the Covenant). UN doc.
E/C.12/1999/5,5 May, para.29.
18 The concept of “adequate” food has three components. First, food should be available in a quantity and have
nutritional quality sufficient to satisfy the dietary needs of individuals. Second, the food should be safe for human
beings to eat and free from adverse substances. This incorporates an element of consumer protection. Third, the food
should be acceptable within a given culture.
19 “Availability” of food refers to a sustainable supply of adequate food, with environmentally and economically
sustainable food systems. Sustainability indicates a long term availability are contained in the Voluntary Guidelines,
such as land, water, agriculture, technology, extension and credit availability. International cooperation in augmenting
food availability is also relevant.
20 “Accessibility” of food suggests a stable access to adequate food. It incorporates both physical and economic access
to food within the household’s livelihood. It also suggests the accessibility of food in ways that do not interfere
with the enjoyment of other rights, and corresponds to the Voluntary Guidelines that are directed at improving the
management of resources.
125
order issued by the court clearly established that the court understand the right to life, affirmed in
article 21 of India’s constitution, as implying the right to food. While the court has been guided
entirely by national law, it could also draw on recent advance made in understanding the right to food
at the global level.
Article 38 of the constitution enjoins upon the State to promote welfare of the people. The
first essential of welfare of people would be to ensure them food in order to be free from hunger
and malnutrition. There can be no welfare of people without securing them basic necessities of life,
including right to food.
Article 39 (a) is more specific when it says that State shall direct its policy towards securing
its citizens the right to an adequate means of livelihood. Right to food can only be secured when a
person has adequate means to enable him to purchase necessities of life, including food.
Article 43 is comparable to Article 25 on the U.D.H.R. and Article 11 of the Economic
and Social Covenant. It asks the State to “endeavour” to secure a living wage, conditions of work
ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities
...”
Article 47 also spells out the duty of the state to raise the level of nutrition and the standard
of living of its people as a primary responsibility.21
Legislative And Adminstrative Perspective:
The Government in its second year of independence passed Minimum wages Act, 1948 on
the pattern of international convention of 1928. The Act promises minimum wage for some categories
of industrial and agricultural workers so that they can afford bare necessities of life.
The Government has also opened fair price shops to secure to every person food grains and
sugar at fair prices.
The Government has passed a number of laws to curb price rise of essential commodities.
Violators of these laws are subject at punishment and penalties under Essential Commodities Act.
There is Twenty Point Programme 2006 of the Government which seeks to take care of
problems of the weaker sections of the society and seeks to provide basic necessities of life to
disadvantaged sections of society.
To alleviate the incidence of rural unemployment and landless labour, there is Rural Landless
Employment Guarantee Programme – RLEGP, to raise the rural masses above the poverty level.
21
Article 47 the State shall regard the raising of the level of nutrition and the standards of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious
to health.
126
There is National Rural Employment Programme (NREP) which has the target of minimum 1500
millions man days of employment during sixth Five year Plan, 1980 - 1985, costing 100 million
dollars (Rs.1620 crores). Apart from providing rural employment with minimum wages, subsidized
food grains are supplied to rural poor is improve their nutrition of standards.
There is also Food secured by programme with the Government. The Government seeks to
maintain reserve Food stock depending upon production forecasts and probable nourishments of the
community. If need be, food grains are improved to maintain buffer stock and speedy supply to the
fair price shops and thus prevent price rise in open market.
There is also a Mahatma Gandhi National Rural Employment Guarantee Act, 2005
is a important legislation in this regard. India has the largest food schemes in the World such as
Integrated Child Development Scheme, Mid Day Meal Scheme, Targeted Public Distribution
System, National Rural Employment Guarantee Scheme, Social Safety Programme for feeding poor
children, providing subsidized foods, etc., but still the problems persist as all these schemes suffer
from execution problems. Enormous amounts of money are spent on such programmes.
Judicial Approach
Initially, in India, the judiciary has not specifically said about the right to food. But indirectly
it has emphasized that workers must get minimum wages which could ensure them bare necessities
of life. It has further held that right to life does not mean just animal existence. It means living with
human dignity and basis necessities of life. Thus, the Supreme Court has hold in the case of Francis,
Mullen that right to life as guaranteed under Article 21 does not mean mere animal existence. It
means something more which would cover right to basic necessities of life and human dignity.
In 1953, the Supreme Court held in the case of Crown Aluminum Works22 that there are
three categories of wages, minimum, fair and living. It defined minimum wages as floor (poverty)
wages, fair wages as subsistence wages and living wages as equivalent to decency or comfort level.
It held that the principal objective of welfare state is to secure economic and social justice to its
citizens. It asserted that no industry has right to exist unless it is able to pay its workman at least a
bare minimum wage.
In Reserve Bank Employees Association case in 1968, the Supreme Court held that fair
wages would mean provision for food, shelter, clothing, medical care and education of children for
a standard family. It quoted with approval the opinion of Justice Higgins of Australia that normal
needs of average employee regarded human being living in a civilized community should be met
by the industry. Justice Higgins had remarked that living wage should provide not only absolute
essentials such as food, shelter and clothing but also a frugal comfort estimated by current human
standards. The Supreme Court remarked that living wage should be the ideal wage which has so far
eluded the community.
22
Crown Aluminum Works v. Their Workmen, AIR 1958 SC 30
127
In ASIAD workers case in 1983, the Supreme Court has observed that State should ensure
payment of minimum wages of ASIAD workers despite compulsion on the part of workers to accept
lower wages.
The Supreme Court in the case of Kishen Pattnayak v. State of Orissa, the petitioner wrote
a letter to the Supreme Court bringing to the court’s notice the extreme poverty of the people of
Kalahandi in Orissa23 where hundreds were dying due to starvation and where several people were
forced to sell their children. The letter prayed that the State Government should be directed to take
immediate steps in order to ameliorate this miserable condition of the people Kalahandi. This was
the first case specifically taking up the issue of starvation and lack of food. The Supreme Court took
a very pro-government approach and gave directions to take macro level measure to address the
starvation problem such as implementing irrigation projects in the state so as to reduce the drought
in the region, measure to ensure fair selling price of paddy and appointing of a Natural Calamities
Committee. None of these measure actually directly affected the immediate needs of the petitioner,
i.e, to prevent people from dying of hunger. More importantly, the Supreme Court did not recognize
the specific Right to Food within this context of starvation. In Chameli Singh v. State of U.P.24 it
was held that right to life guaranteed in any civilized society implies the right to food, water, decent
environment, education, medical care and shelter.
It was only in 2001 in the case of PUCL v. Union of India & Ors 25 popularly known as the
right to food case, the Supreme Court recognized the right to food under the right to life stipulated
in Article 21 of the Indian Constitution, and Article 47, a Directive Principle of State Policy which
puts duty on the state on raising the level of nutrition. The court noted that paradox of food being
available in granaries, but that the poor were starving.
The Supreme Court observed that:
‘In our opinion, what is of utmost importance is to see that food is provided to the
aged, infirm, disabled, destitute women, destitute men who are in danger of starvation,
pregnant and lactating women and destitute children, especially in cases where they
or members of their family do not have sufficient funds to provide food for them. In
case of famine, there may be shortage of food, but here the situation is that amongst
plenty there is scarcity. Plenty of food is available, but distribution of the same amongst
the very poor and the destitute is scarce and non-existent leading to malnourishment,
starvation and other related problems.”
Further, on September 3, 2001, the court directed that 16 states and union territories that
had not identified families below the poverty like must do so within two weeks, so that those
families could be provided with food assistance. After two weeks, on September 17, 2001, the court
reprimanded them, saying, “we are not satisfied that any such exercise in the right earnestness has
23
24
25
AIR 1989 SC 677
1996 (2) SCC 549
PUCL v. UOI, 2004 (12) SCC 104
128
been undertaken.” They were then given another three weeks to comply with the order. The court
also reminded the states that “certain schemes of the Central Government are mentioned which are
required to be implemented by State Governments”. The Chief Secretaries of all the States & the
Union Territories are hereby directed to report to the Cabinet Secretary, with copy to the learned
Attorney General, within three weeks from today without any modification and if all or any of the
Schemes have not been implemented then the reasons for the same. All State governments were
directed to take their “entire allotment of food grains from the Central with the Schemes”. Further,
the court required that “the food for Work States to the extent possible”. On November 28, 2001,
the court issued directions to eight of the major schemes, calling on them to identify the needy and
to provide them with grain and other services by early 2002. for example, for the Targeted Public
Distribution Scheme, “The States are directed to complete the identification of BPL (below poverty
level) families, issuing of cards, and commencement of distribution of 25 kg grain per family per
month latest by 1st January 2002”.26
The significant interim orders passed time to time in this case have led to new and betterimplemented government programmes and have asserted that benefits under these programmes are
legal entitlements. Such programmes include mid-day meals for school children, food entitlements in
childcare centres, subsidized food for a number of specific vulnerable groups, as well as changes to the
subsidies directed at all persons below the official poverty line. The court case continued for several
years and included the appointment of the Court Commissioners to monitor the implementation of
interim orders.27 The National Human Rights Commission of India also held that the right to food is
inherent to the a life with dignity, and the fundamental rights must be read with other provisions of
the Constitution to understand the nature of the obligation of the state in order to ensure the effective
realization of this right.28
The National Human Rights Commission of India also held that the right to food is inherent
to the a life with dignity, and the fundamental rights must be read with other provisions of the
Constitution to understand the nature of the obligation of the state in under to ensure the effective
realization of this right.29
Now the right to food is indeed justifiable and can be adjudicated by a court of law but
this encouraging development is not sufficient but, a great deal remains to be done to ensure the
justifiability of the right to food.
Food Security initiatives:
Paradoxically, India is one of the largest producers of food in the world but millions of
26 PUCL v. UOI, 2004 (12) SCC 104 available at http:// www. righttofoodindia.org /orders/ interimorders. html,
27 http://www.righttofoodindia.org
28 Order of the National Human Rights Commission dated 17 January 2003 on allegation of starvation deaths in
Kalahandi, Bolangir, Korapur district of Orissa, case No.37/3/97-LD
29 Order of the National Human Rights Commission dated 17 January 2003 on allegation of starvation deaths in
Kalahandi, Bolangir, Korapur district of Orissa, case No. 37/3/97-LD.
129
people struggle to get two square meals and equal number are under nourished-which is reflecting
from India’s position in the global hunger index released in 2010. In the 2009 Global Hunger Index
India ranked 65 out of the 88 Countries, and slipped down to 67th position, in 2010. In India 230
million people are undernourished- the highest for any country in the world. Malnutrition accounts
for nearly 50% of child deaths in India as every third adult (aged 15-49 years) is reported to be thin.
(Body Mass Index less than 18.5). According to the latest report on the state of food insecurity in
rural India, more than 1.5 million children are at risk of becoming malnourished because of rising
global food prices as per UNICEF estimate – India is home to 42 percent of world’s underweight
children and 31 percent of its stunted children.
“We pledge our political will and our common and national commitment to achieving
food security for all and to is an ongoing effort to eradicate hunger in all countries,
with an immediate view to reducing the number of undernourished people to half their
present level no later than 2015.”
Declaration by Government at the 1996 world food Summit.30
Food and Agriculture Origination (FAO) defines food security as
“access by all people at all times to the food needed for a healthy and active life.”31
Sustainable food security involves strengthening the livelihood security of all members
within a household by ensuring both physical and economic access to balanced diet including
the needed micronutrient, safe drinking water and environmental sanitation, basic health care and
primary education. The food should originate from efficient and environmentally benign production
technologies that conserve and enhance the natural resource base of crops, farm animals, forestry,
inland and Marine fisheries,
FAO (1983) has enlarged its concept of food security as enlisted below,
(a) The ultimate object of world food security should be to ensure that all people at all times
have both physical and economic access to the basic food they need.
(b) Food Security should have three specific aims: namely, ensuring production of adequate
food supplies; maximizing stability in the flow of supplies; and securing access to
available supplies on the part of those who need them.32
Definitions of food security are continually changing. Over time, definitions have moved
from a focus on supply to questions of distribution and access. On the part few years, food security
researchers have began to consider food security within households. Food Security has now come
to include a consideration of who has access at the individual level, not just at the level of states
30
31
32
Available online :http//wwwfao.org/wfs/index_en.htm.
Biswa Ranjan Samantary et al : Rural Pisciculture, Kurukshetra Sept. 200, p.30
Dr. Shahin Razi “Food Security the next big challenge, Kurukshetra Sept. 2009 P.4
130
or regions. Finally, definitions of food security have began to shift from a concern with quantity to
quality: access is calories is not enough to ensure good health.
Around 160 years back political economist John Stuart Mill wrote, ‘Land differs from other
elements of production, labour and capital in not being susceptible to infinite increase. Its extent is
limited and the extent of the more productive kinds of it more limited still. It is also evident that the
quantity of produce capable of being raised on any given piece of land is not indefinite. This limited
quantity of land, and limited productiveness of it, are the real limits of the production.33 Never more
do his words ring true than today in India.
With the pressure of billion-plus mouths to feed, and returns on agricultural inputs declining,
it would seem prudent to protect the area under agriculture, if not bring more area under cultivation.
However, what we are witnessing is the reverse. Faced with competing demands for land from
the non-agriculture sector and rapid urbanization, large chunks of prime agriculture land are being
diverted for non-agricultural purposes. This has serious implications for food security.
In 2000 the Millennium Development Goals (MDGs) helped focus international attention
on the plight of the world’s poor yet with 2015 fast approaching many of the world’s poorest and
hungriest people are still falling behind.34 Poverty is generally considered as being one of the major
causes of food insecurity. Hence, in the present scenario poverty eradication is essential to improve
access to food, in other words for the sustainable livelihood and food security is very important to
produce food for everyone.
Ensuring food for all is a complex exercise. Availability of food, its affordability, and
providing access is an issue of policy and management of the resources. Therefore it is essential to
analyse the traind regarding food production, food consumption and food distribution in India.
Trends In Food Production35
India achieved near self sufficiency in the availability of foodgrains by the mid-seventies.
The annual growth rate of food production including non-cereal food increased from 2.1 per cent
during the 1960s to 3.0 per cent in the subsequent decade and further to 3.8 per cent during the 1980s.
Between 1960 and 1980, food production barely kept pace with the population but in the 1980s per
capita food production increased at a satisfactory rate of 1.6 per cent per annum. During the period
of triennium ending (TE) 1980-81, rice production was 49.9 million metric tones (mmt) which
increased to 89.2 mmt which increased to 89.2 mmt by TE 2006-07. Production of rice increased at a
rate of 2.4 per cent per annum during this period. Similarly, the production of wheat nearly doubled
from 34.6 mmt in TE 1980-81 to 71.0 mmt in 2006-07, at the annual rate of 2.9 per cent over these
years. Total production of cereals has also grown at the rate of 2.2 per cent per annum during the 26
year period. However, this growth has been decelerating very fast over the decades.
33
34
J.S.Mill, The Principles of Political Economy, Longmans, Green & Co. London, 1848
Kurukshetra Sept. 2009 p.30
35
Securing Food for all, Velu Suresh Kumar, Yojana, October 2010 p.37
131
Growth in rice production slowed down to 1.8 per cent per annum during the 1990s and has
only been growing at the annual rate of 0.1 per cent in the last six years, while the annual growth rate
was 3.7 per cent in the
1980’s. Overall total growth of cereals declined from 3.1 per cent per annum in the 1980s to 2.0 per
cent per annum in the 1990s, and further to 0.2 per cent in the early period of the current decade,
because the yield gains for cereals in the post-green revolution era have been low. For pulses and
sugarcane also low yield have resulted in low production levels. However, oilseeds exhibited a high
annual growth rate of 3.6 per cent in the overall period. But the oilseed sector suffers from the poor
performance of the oil processing units.
The relative cereal price which showed a decline in the seventies and eighties, registered
a rise in the nineties and also in the early period of the current decade. An increase in serial price
significantly reduces the calories in take of the poor as their price elasticity of food/calorie estimates
of price elasticity is numerically large. The upward trend in the real price of cereals in the nineties
and also in the early period of the current decade had coincided with a slowdown in the decline of
poverty.
Trends In Food Consumption36
Cereal Consumption
The NSS data on consumer expenditure for various rounds indicates that per captia consumer
expenditure at constant (1990-91) prices steadily increased since 1970 both in rural and urban areas.
It increased around 1.5 per cent per annum in both the areas during ‘70s and 80s; and around 1.2 per
cent per annum in rural areas and 2.8 per cent per annum in urban areas during the ‘90s. It appears
that economic reforms benefited the urban households more than the rural ones. But the increase in
consumption expenditure did not reflect in food expenditure. Per captia food expenditure at constant
prices increased around 0.9 per cent per annum during ‘70s and ‘80s while it declined at 0.9 per cent
per annum in rural areas and was stagnant in urban areas during the last decade.
The consumption of per capita cereal has been declining since the early seventies despite a
significant increase in per captia cereal production (Radhakrishna and Ravi, 1992; Rao, 2000). The
consumption of per captia cereals declined in rural areas from 15.35 kg per annum in 1970-71 to 11.9
kg per annum in 2005-06 and from 11.4 to 9.8 kg in urban areas. The sharp fall in cereal consumption
has been attributed to diversification in food consumption in favour of non-cereal foods, particularly
milk and milk products, sugar and gur and other food items, changed tastes and preferences, as well
as change in relative prices of food items (Mittal, 2006). Higher economic growth and per captia
incomes have contributed to reduction in per captia demand for cereals.
36
Ibid
132
Projection Of Food Demand37
Demand projection in general are estimated on the basis of assumptions about the base year
demand, population expenditure elasticity and economic growth. The domestic demand projections
for rice, wheat and total cereals are arrived at by adding up the direct demand [human demand] and
indirect demand (seed, feed, industrial use and wastage). It is observed that household food demand
has been primarily driven by growth in population and income.
The demand and supply projection given below was developed at Indian council for research
on international economic relations the domestic demand are projected under tow scenarios of per
capita income growth the tow scenarios assume the gross domestic product (GDP) growth the to be
8 per cent and 9 per cent The results of food demand predictions corresponding to scenario of 9 per
cent GDP is thought to be most likely in future. As per the projection the total cereal demand for 2011
is 187.8 mmt if The economy grows at the rate of 8 per cent per annum and 188.5 mmt is the GDP is
9 per cent (table I) cereal. The demand in 2026 will be 273.5 mmt and 277.2 mmt in the alternative
scenarios, respectively, During the same period, demand for rice, wheat and pulses is expected to be
102.1 mmt, 65.9 mmt and 57.7 mmt, respectively, under scenario 2. Increase in demand for pulses is
quite evident as this is the major source of protein for vegetarian population. Demand for edible oil
is projected to be 40.9 mmt by 2026 and sugar demand is expected to increase almost nine-fold in
2026 from base year demand of 11.9 mmt.
Table 1: Projection Domestic Demand for food items in India
Food items
Base year
Scenario 1
Scenario 2
1990-00
2011
2021
2026
2011
2021
2026
Rice
66.0
94.5
96.9
102.2
94.4
96.8
02.1
Wheat
44.9
60.1
66.8
69.1
59.0
64.3
65.9
T o t a l
119.0
187.8
242.8
273.5
188.5
245.1
277.2
Pulses
10.4
23.0
38.7
51.0
24.1
42.5
57.7
Edible Oil
8.6
15.7
26.7
35.3
16.8
30.2
40.9
Sugar
11.9
26.7
55.0
81.1
29.3
65.7
100.7
Cereals
SOURCE : Surabhi Mittal (2008)
37
Ibid p.38
133
Note: Scenario 1: GDP is 8% per annum; Scenario 2: GDP is 9% per annum
Cited from Yojana October 2010
Projection Of Food Supply38
Medium and long-term supply projection of food have been made using a straightforward
approach. Supply projection have been compound using the yield growth for the most recent period
of 1993-2003 and taking 2003-04 as the base year for area and production and also assumed that
further area expansion will take place. Supply prospects have accordingly been presented in Table 2
for selected food items.
If there is no area expansion and future supply is only dependant on yield growth, than total
supply of cereals will be 209.7 mmt in 2011, 24.2 mmt in 2021 and 260.2 mmt in 2026. The yield
growth of total cereals has been 1.5 per cent in the past decade, according to government estimates.
Rice and wheat production is also estimated to increase to 111.2 mmt and 97.9 mmt, respectively,
by 2026. There has been a diversification in the cropping pattern towards high value commodities in
major rice producing regions.
Table 2 : Projected Domestic Supply of Food Items in India
Food Items
Base Year
Rice
2003-04
88.3
Wheat
2011
Supply Projection
2021
2026
95.7
105.8
111.2
72.1
80.2
91.6
97.9
T o t a l
Cereals
Pulses
186.9
209.1
242.2
260.2
14.9
16.1
17.6
18.4
Edible Oil
8.6
10.1
12.5
13.9
Sugar
(25.3)
24.2
(29.9)
25.0
(36.9)
26.9
(41.1)
26.6
(237.1)
(245.0)
(255.2)
(260.5)
Note: Figure in the Parenthesis are the supply projections for oil seeds and sugar ca in
respective columns
Food Gap
38
Ibid
134
Increase in total demand is mainly due to growth in population and per capita income and as
far as supply in concerned, production is constrained by low yield growth. A negative gap indicates
that the demand of the commodity is more than its supply and this implies a deficit of the commodity
in future (Table 3). The gap between supply and demand is narrowing down over the years for all the
food items. The supply-demand gap for total cereals is expected to be 21.19 mmt in 2011 whereas it
is projected at -16.96 mmt in 2026.
Table- 3 Supply Demand Gap for selected Food Items
Food Items
Rice
1.26
Wheat
Total Cereals
Pulses
Edible Oil
Sugar
21.21
21.19
-8.05
-6.66
-4.31
2011
Gap (Supply-Demand)
2021
8.98
27.33
-2.94
-24.92
-17.68
-39.67
9.13
2026
32.04
-16.97
-39.31
-26.99
-74.13
Note: Demand Scenario of GDP Growth at 9% is considered here.
If we look at the medium-term prospect then in 2011 by the end of the Eleventh Plan, the
situation for pulses, edible oil and sugar is alarming. This implies that in the years to come, the
country will have to rely on imports of their food items to meet the domestic requirement.
Rate of the growth of projected demand for the selected food items is much more than
projected supply growths for these. Table 4 shows that in future, for cereals the demand grows at a
much higher rate than the domestic supply. This difference in growth rates is much higher for pulses,
edible oil and sugar.
Table 4: Percent annual growth rate of projected supply and demand
Food items
Demand
Rice
1.55
Wheat
1.42
Total Cereals
3.17
Pulses
6.51
Edible Oil
5.95
Sugar
8.22
SOURCE: Surabhi Mittal (2008)
Supply
1.01
1.34
1.45
0.91
2.13
0.41
Note: Growth Rate between base year & 2026. Demand Scenario of GDP Growth at 9%
is considered here.
135
To meet the domestic food requirements the country either needs to increase agriculture
production or depend on imports. Since agriculture growth is limited, imports can help improve
the country’s supply situation for short term. But for the long term, the country will need to focus
on productivity enhancement through public investment in irrigation. Research and efficient use
of water, plant nutrition and other inputs. These policies will induce efficiency and can help in
maintaining balance between domestic production and demand.
Prof. M.S.Swaminathan39 suggested the priority agenda for 2011 on the food front are also
still useful for future course of action In this regard six areas need urgent and concurrent attention.
First, the National Policy for Farmers placed in Parliament in November 2007, on the basis of a draft
provided by the National Commission on Farmers (NCF), should not continue to remain a piece of
paper, but should be implemented in letter and in spirit. This is essential to revive farmers’ interest in
farming. Without the wholehearted involvement of farmers, particularly of young as well as women
farmers, it will be impossible to implement a Food Entitlements Act in an era of increasing price
volatility in the international of marker. The major emphasis of the National Policy for Farmers is
imparting an income orientation to agriculture through both higher productivity per units of land,
water and nutrients, and assured and remunerative marketing opportunities. The Green Revolution of
the 1960s was the product of interaction among technology, public policy and farmer’s enthusiasm.
Farmers, particularly in North West India, converted a movement. The goal of food for all can be
achieved only if there is similar enthusiastic participation by farm families.
Second, every State government should launch a “bridge the yield gap” movement, to
take advantage of the vast untapped yield reservior existing in most farming systems even with
the technologies currently on the shelf. This will call for a carefully study of the constraints –
technological, economic, environmental and policy- responsible for this gap. The 25000-crore
Rashtriya Krishi Vikas Yojana of the Government of India provides
adequate funding for undertaking such work both in irrigated and rain fed areas. Enhancing factor
productivity leading to more income per unit of investment on inputs will be essential for reducing
the cost of production and increasing the net income. Scope for increasing the productivity of pulses
and oilseed crops is particularly great. The programme for establishment 50000 Pulses and Oilseed
Villages included in the Union budget for 2010-11. The cost of protein in the diet is going up and
Pulses Villages will help to end protein hunger.
There are outstanding varieties of chickpea, pigeon pea, moong used and other pulses
available now. What is important is to multiply the good strains and cultivate them with the needed
soil health and plant protection measure. The gap between demand and supply in the case of pulses
is nearly 4 million tones. We should take advantage of the growing interest among farmers in the
cultivation of pulses, both due to the prevailing high prices and due to these crops requiring high
prices and due to these crops requiring less irrigation water. Such high value, but low water requiring
crops also fix nitrogen in the soil. Before the advent of mineral fertilizers, cereal-legume rotation was
39
Managing the anticipated food crises: M.S.Swaminathan, The Hindu, Dec.20, 201
136
widely adopted for soil fertility replenishment and build-up.
Third, the prevailing mismatch between production and post-harvest technologies should
be ended. Safe storage, marketing and value addition to primary products have to be attended to at
the village level. Home Science colleges can be enabled to set up Training Food Parks for building
the capacity of self-help groups of women in food processing. A national grid of ultra-modern grain
storage facilities must be created without further delay. In addition to over 250 million tons of food
grains, we will soon be producing over 300 million tones of fruits and vegetable. Unless processing
and storage are improved, post-harvest losses and food safety concerns will continue to grow.
We should also expand the scope of the Public Distribution system by including in the
food basket a whole range of underutilized plants like millets and, where feasible, tubers. The NCF
pointed out that eastern India is a sleeping giant in the field of food production. The sustainable
management of the Ganges Water Machine (this term was first used by Professor Rogar Revelle)
will provide revolution in this area fortunately Chief Minister Nitish Kumar is taking steps to make
Bihar the heartland of the evergreen revolution movement in this region. The Ganges Water Machine
is capable of helping us to increase food production considerably, provided we utilize ground water
efficiently during rabi and replenish the aquifer during kharif.
Four, a nutrition dimension should be added to the National Horticulture and Food Security
missions. Hidden hunger caused by the deficiency of micronutrients like iron, iodine, Zinc, Vitamin
A and Vitamin B12 can be overcome at the village level by taking advantage of horticultural remedies
for nutritional maladies. Popularization of multiple fortified salts will also be valuable, since this is
both effective and economical.
Five, a small farm management revolution which will confer on farmers operating one
hectare or less the power and economy of scale is an urgent need. There are several ways of achieving
this and these have been described in detail in the chapter titled, “Farmers of the 21st Century” in the
NCF report. We need to foster the growth of a meaningful services sector in rural India, preferably
operated by educated young farmers. The services provided should cover all aspects of production
and post-harvest operations. Group credit and group insurance will be needful. Contract farming
can be promoted if it is structured on the basis of a win-win situation both for the produce and the
purchaser.
Finally, there is need for proactive action to minimize the adverse impact of unfavorable
change in climate and monsoon behaviour and to maximize the benefits of favorable weather
conditions. For enabling farmers to develop a “we shall overcome” attitude in the emerging era of
climate change, we need to set up in each of the 128 aqro-climate zones identified by the Indian
Council of Agricultural Research a Climate Risk Management Research and Training Centre. These
centre should develop alternative cropping patterns to suit different weather probabilities. They
should develop methods of checkmating potential adverse conditions. Along with a climate literacy
movement, a woman and a man from every panchayat and nagarpalika will have to be trained as
Climate Risk Managers. We will then have over half-a-million trained Climate Risk Managers, well
137
versed in the science and art of climate change adaptation and mitigation. Such a trained cadre of
grass root Climate Risk Managers will be the largest of its kind the world.
Food Security & Climate Change:
If India protects its food security from climate change impacts, it could negotiate with greater
confidence at international climate talks, says eminent scientist M.S. Swaminathan who is on the
parliamentary delegation to the U.N. summit at Copenhagen. He also said, “China strengthened its
food security and now they are negotiating from a position of strength. Food Security and agriculture
are the primary casualties of climate change. He pointed out that India produced less than half of
China’s 500 million tons of food grains per year, leaving New Delhi more vulnerable than Beijing
in the global negotiations. “We have to rely on others, on the U.S., to buy wheat,” he said, “It is the
same with sub-Saharan Africa, South Asia and the island states. They are vulnerable at home.”
He pointed out that just a one-degree rise in global average temperatures would mean an
annual loss of six million to seven million tons, or 10 per cent, of India’s wheat production.
“Charity begins at home,” he said, calling on the Indian government to put its energies into
adapting to the impacts of climate change on agriculture – droughts and floods, sea-level rise and soil
salinity –even as it negotiates on the international stage.
“We must prepare to strengthen the climate resilience of our agriculture,” said Dr.
Swaminathan, adding all the knowledge and technology was already available in India.40
National Food Security Bill 2009 : 41
The proposed National Food Security Bill is a commendable initiative of the government.
This law would hopefully realize dreams of Mahatma Gandhi to provide food to every human, a
goal that was inserted and enshrined in Constitution of India as Right to life under Article -21. The
proposed legislation seeks to provide access to sufficient food to the deprived section of society by
making provision therein to provide 25 kg of wheat or rice per month at a subsidized rate of 3`/kg
to the families living below poverty line (BPL). This legislation is perhaps the first of its kind after
MNREGA. After the huge success of MNREGA, both in terms providing employment and public
spending, hopes of successful execution
of this proposed legislation are also running high. According to reports and figures of Ministry of RD,
about 460 crores employments have been created with Rs.35000 crores expenditure under MNREGS
across the state in India. This programme is all set to bring a social and economic revolution in rural
India; a concept which has gained appreciation in countries like USA, UK and most of others.
The government has worked out details of eligible. Below Poverty Line families,
methodology for their identification and issuance of identification cards, as part of the proposed
40
41
The Hindu Dec. 18, 2009 p. 10
Dr. Arbai.U, Kurukshetra Sept. 2009 p.19
138
National Food Security Bill, under the proposed law, every BPL family will be entitled to receive
25 kg of food grains per month. What should be done to make national food security act, a success?
The proposed National Food Security Act should be synergized with MNREGS so that a composite
and comprehensive programme is evolved, which in turn help fight hunger and poverty. MNREGS
is a rural employment and job guarantee scheme and is confined to rural areas only but the hunger
and unemployment in urban areas are also grim and gloomy, It is therefore desirable on part of the
government to enact similar law for urban areas also.
The National Food Security Bill should be made applicable in urban areas also. If this law
is implemented effectively, it can be a land mark in the economic, constitutional and social-political
history of India. Hopefully, the government would undertake this challenge in positive and unflinching
resolve and implement this law to eradicate the blot of hunger and poverty for ever from this country
once for all. The flagship schemes of Government of India have paid dividends in the period of
crisis. It seems that Keynesian theory has worked here; of course indianised version of Keynesian
theory. Hopefully India would perhaps pioneer the world by giving an alternate model of economy.
The government is working out details of eligible Below Poverty Line families, methodology
for their identification and issuance of identification cards, as part of the proposed National Food
Security Bill. Thus, the National Food Security Bill, modeled along the lines of MNREGA, would
be major challenges for the government because, several national programmes are already on-going
in the country to handle food security. On similar lines of Food Security Bill, the most wide-spread
prevalent programme is the Public Distribution System which later became Targeted PDS. Under
this system, central government procures food grains to benefit the people living below poverty line
(BPL). Procurement of food grains is one of the essential aspects of the food security policy of the
Government of India in order to protect vulnerable sections of society against price volatility; it
also provides price security to the farmers, which induces them to sustain production levels. But the
major weakness of the system is poor targeting of the beneficiaries and also there have been large
scale errors in the identification of BPL families. These miss-targeting causes actual poor families to
get deprived of their entitlement and as a consequence food gets diverted to non-poor (non-target)
section. Thus, a question arises again, i.e. will this Food Security Bill also end up with the same fate?
Another hindrance in fulfilling the objective of the Food Security Bill can be lack of food
availability. With the implementation of this Bill, it is expected that demand for rice and wheat will
go up and easing these exports will cause supply crunch and intensify upward pressure on the prices.
It has been recommended that in order to meet the needs of the Food Security Bill, there has be
adequate amount of food grains reserve in government depots and therefore no easing of exports. In
the alternative, a larger budgetary provision will have to be made for food grains procurement. In
2008-09 FCI godowns had been over-flowing with 22 million tons of wheat, almost double what they
have procured last year and double the buffer norm of 11 million tones. The procurement for Public
Distribution System and other schemes is quite low in comparison with the production level of food
grains.
139
Consclusion:
The Vision 2020 document of the National Planning Commission has also reiterated “India
needs to sustain an agriculture growth rate of 4.0 to 4.5 percent in order to reduce food insecurity and
poverty. At this growth rate, agriculture development could more rapidly diversify into horticulture,
fishery, dairying, animal husbandry and other areas.”
The Food Security Bill in its present form may not be acceptable to many state governments,
which follow much better norms in defining the beneficiaries as well as their entitlements. Even the
Chairman of the Economic Advisory Council to the Prime Minister, C. Rangarajan, who was against
the inclusion of APL households among the beneficiaries has apparently changed his stand and said
that they could be given legal entitlements, though with a lesser quantity of food grains. There are
some positive elements in the Bill such as the inclusion of the mid-day meal scheme among the
beneficiaries and the provision of cooked and nutritional food for pregnant and lactating women. But
among those who were actively working for a strong and effective Food Security Act, there is an
overwhelming feeling of disappointment and being let down.
The structural solution to the problem of food security in the world lies in increasing
production and productivity in the low-income, food-deficit countries. Food production must rise 50
percent by 2030 to meet increasing demand, UN Secretary-General Ban ki-moon told world leaders
in Rome as they opened a summit to deal with food price in 2008. UN Food Agency (FAO) and
International Food Policy Research institute (IFPRI) both suggest that food prices will be high for at
least the next 10 years while the World Bank forecasts that it will affect 100 million more poor people
around the world, on top of the around 850 million already suffering from hunger. Poor productivity,
inefficient and cost-ineffective distribution, poverty, vagaries of nature and the impending threat of
climate change- the challenges to food security are many. Efforts are being made to face the same.
The government, the community, non-government organizations are all pooling in their resources.
Success should not evade us for long.
*****
140
Forest Rights as Appurtenant to Social Inclusion in India: A Sociolegal Study
Debasis Poddar1
Keywords: social justice, minority discourse, multiplicity of minority, ethnic minority,
similarly situated people, forest rights, habitat, livelihood, State Policy, Constitution
etc.
Abstract
Since early twentieth century, under the auspices of Ambedkar, a trajectory visà-vis caste apartheid is set for social justice movement in India. Indeed there
were historical reasons behind the same so much so that caste politics still plays
a driving force behind the movement. An initiative of Ambedkar et al put a set of
provisions including reservation clause in the Constitution on the basis of caste.
Whether or how far such juridical intervention helps attain social justice is a point
apart and has not been dealt with here. Rather the focus of this effort transcends
beyond caste as a dominant discourse. In traditional parlance, therefore, subject matter
of the forthcoming paper may look an avant-garde effort. At the same time, however,
such effort is not meant to undermine caste but to complement and supplement the same
with emerging islands of social justice archipelago.
Social (in)justice so often than not does matter to those who belong to minority
community and deprivation is perpetrated in the form of (c)overt marginalization from
mainstream (social) life which includes economy- no wonder that Ambedkar insisted
upon reservation in public employment. A minute study of minority discourse may not
leave many unconvinced that caste is one and not the (only) marker of measurement
for minority. Rather there are (many) others, viz. religious minority, ethnic minority,
minority vis-à-vis sexuality etc.
Since time immemorial, indigenous people of India have had their habitats in respective
forests and they constitute integral part of concerned forest. In British India, a process
was initiated to deprive them of inherent rights vis-à-vis homeland, livelihood etc.
and the colonial syndrome was on until enactment of the Scheduled Tribe and Other
Forest Dwellers (Recognition of Forest Rights) Act, 2006. Indeed sanctity of forest sans
homo-sapiens is seemingly done away with, at least in terms of environmental
jurisprudence, heavy resistance is operative from within the system in general and
1 Assistant Professor of Law, National University of Study and Research in Law, Ranchi,
Jharkhand Chotanagpur Law Journal
141
from Indian Forest Service in particular as colonial culture of the cadre survives in its
successive community serving in postcolonial regime of the country. Political economy
of the tension constitutes focus of this effort.
The author explores nitty-gritty of social justice under the Constitution and
thereby offers to include forest rights as an appurtenant to social justice. Thus forest
rights of ethnic minority and other similarly situated people is likely to be fortified
with endorsement under Article 38 of the Constitution, read with Preamble to the
same. The effort condemns subversive activities to the detriment of forest rights of the
people.
Introduction
By and large, fulcrum of the problem lies on a tripod, e.g. minority, rights and
justice. At the threshold of this effort, therefore, contextualizing these three concepts here may help
readership to sail through forthcoming paragraphs with better ease. Justice, a perennial quest for an(y)
institution of law in a(ny) given social order, is divergent in its nature and feature. On one trajectory,
justice may be retributive, restorative, distributive etc. On the other, justice may be divine, natural,
procedural etc. Justice may also be social, economic, political etc. as conceive by the Constitution
of India. In such wide range of variety, social justice constitutes focus of this effort. Rights, another
term with its ever increasing meaning and underpinning, here refers to a set of entitlements as part of
international human rights jurisprudence and not as a right in terms of the traditional sense Hohfeld
set the same as jural correlative of a duty. Minority is an identity in relative terms of a given social
order and always involves complex and delicate question of vulnerability to be determined
on case to case basis. No wonder that plurality seems apparent hallmark of minority, e.g. racial
minority, religious minority, linguistic minority, ethnic minority, sexual minority etc. Among this
range of variety, ethnic minority constitutes focus of this effort. In a nutshell, dealing with rights of
ethnic minority toward attainment of social justice is object and purpose of this paper.
Concern over minority rights may be traced back since the beginning of international human
rights regime. Way back in 1948, while considering the “Fate of Minorities” along with Universal
Declaration of Human Rights, UN General Assembly identified difficulty to adopt a uniform solution
of this complex and delicate question which has special aspects in each state in which it arises. The
Assembly therefore referred the matter to the Economic and Social Council for thorough study in
order to take effective measures for protection of minorities.2 Thereafter minority rights were taken
care of in terms of vulnerabilities, e.g. genocide, torture, enforced disappearance etc. along
with group rights, e.g. Rights of women, children, migrant labour, persons with disability etc. Also
there is a sui generis jurisprudence in terms of indigenous peoples to protect their interests under
international law. Despite a discursive crisis within human rights regime to this end,3 in practice,
2 For details, refer to Fate of Minorities, Part C of the UN General Assembly Resolution No. 217 (III), International
Bill of Human Rights, dated December 10, 1948. Available at: http://daccess-dds-ny.un.org/doc/RESOLUTION/
GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement accessed on March 27, 2011.
3 Why should international human rights law vest members of a minority community- either individually or
142
international community prefers to uphold minority rights over and above such theoretical construct
of human rights. Vulnerability of stakeholders of minority community- with all its plurality- therefore
becomes part of larger human rights concern.
Indeed cultural rights are apparent in Part III of its Constitution, 4 other minority
rights are accommodated as well in the same. A minute study of its text reveals inclusion of
minority rights in general and of caste and religious minority in particular well within Part
III itself while rights of ethnic and linguistic minority lie in Part X (read with Schedule V and VI)
and Part XVII (read with Schedule VIII) respectively. Rights of ethnic minority thus constitute no de
novo innovation as such.
Ethnic minority, vulnerability and civilization
Since time immemorial, minority is a cause of concern for members of the
community as the same appears to be a starting point of their vulnerability. With globalization of
(western) civilization, marginalization of indigenous peoples all over the world is a matter of fact
and the same minority constitute generis of their vulnerability against expropriation from
their homeland and consequent loss of livelihood against which there is no recourse available
on the part of civilization. In the name of development, expansion of civilization is on
its way toward complete detriment of tribal population in India as well as elsewhere. While
north-eastern tribes enjoy constitutional right to self-determination under the Constitution, except
primitive tribal groups,5 almost all indigenous peoples of other nooks and corners in India face
systemic marginalization even after introduction of Scheduled Tribes and Other Forest Dwellers
(Recognition of Forest Rights) Act, 2006.
collectively- with rights that secure a measure of autonomy from the state in which they are located? To the extent
that the field offers answers to this question, it does so from its deep commitment to the protection of certain universal
attributes of human identity from the exercise of sovereign power. It protects minority rights on the assumption
that religious, cultural and linguistic affiliations are essential features of what it means to be a human being. But
its acceptance of this assumption is wary and partial. Minority rights might protect key features of human identity,
but they possess the capacity to divide people into different communities, create insiders and outsiders, pit ethnicity
against ethnicity, and threaten the universal aspirations that inform the dominant understanding of the mission of the
field.
Patrick Macklem, Minority Rights in International Law, Legal Studies Research Series, No. 8-19, July 2008,
p. 2. Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1262967&http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1262967 accessed on March 27, 2011.
4 Vide Article 29, read with 30, of the Constitution of India, 1950.
5 There are certain tribal communities who are having low level of literacy, declining or stagnant population,
and pre-agricultural level of technology and economically backward. 75 such groups in 15 States/UTs have
been identified and have been categorized as Primitive Tribal Groups (PTGs). State/UT-wise list of PTGs
is at Annexure I. each of these groups is small in number, differentially developed with respect to one
another, of remote habitat with poor administrative and infrastructure back up. Therefore, they are in need
of priority to be accorded for their protection and development.
Vide Ministry of Tribal Affairs Scheme of Development of Primitive Tribal Groups. Available at:
http://tribal.nic.in/searchdetail.asp?lid=756&skey=primitive%20tribal accessed on March 27, 2011.
143
The governmentality of marginalization initiated its process in British India through
enactment of the Criminal Tribes Act, 1871 through which all tribes in general and members of the
same in particular hostile ones to British Raj used to be persecuted with endorsement of law. After
independence, the impugned Act was replaced by the Habitual Offenders Act, 1952 which is no
cosmic departure from its predecessor but offers a cosmetic facelift in terms of its harshness.
State wise Tribal Population percentage in India6
Besides there was the Indian Forest Act, 1878 followed by the Indian Forest Act, 1927
which initiated a process to dissociate forest dwellers from their forest cover. A fallacy of the then
forest jurisprudence lied in attaining sanctity of forest land sans forest dwellers which was proved
defeating object and purpose of the Act as its flora and fauna were subject to plunder by poacher,
timber trader in collusion with corrupt forest official. In its anxiety to attain control of its forest,
colonizers lost confidence of forest dwellers who were trustees of the same since time immemorial.
Also Indian Forest Service cadres themselves played predatory practices in terms of exploitation
of forest resource. Thus, by the time the Forest (Conservation) Act, 1980 replaced the earlier Act,
and the National Forest Policy, 1988 was introduced to support forest conservation, India suffered
substantial loss in terms of dense forest cover including its tropical forest nowadays known as green
6 Vide official database, Ministry of Tribal Affairs, Government of India, New Delhi. Available at: http://tribal.gov.
in/index2.asp?sublinkid=545&langid=1 accessed on March 27, 2011.
144
gold.
In spite of all these predicaments, forest dwellers’ right to homeland along with their bona
fide livelihood attached to their forest habitat- at least in terms of collection of minor forest producewere not recognized until introduction of social legislations like the Panchayats (Extension
to the Scheduled Areas) Act, 19967 and the subsequent Act of 2006 as complete version of their
forest rights. There is but a set of predicaments for which green land demonstrates red alert to the
state: (i) with passive resistance on the part of forest service cadre, partly out of colonial worldview
and rest out of vested interest, these beneficial statutes remain in the statute books with a result that
forest dwellers remain in same hell where they were. (ii) Such epiphany on the part of state seems
too late to demonstrate its efficacy as an antiestablishment movement has gained its momentum
under the auspices of naxalite militancy. Social exclusion on the part of state thereby takes heavy
stake of its own on metropolitan civilization. (iii) Last but not least, at the threshold of liberalization
of economy, an increasingly laissez-faire state indulges in expansion of corporate entrepreneurship
into the depth of forest cover under the guise of development to push modern civilization fight
war against indigenous civilization and consequent consolidation of indigenous people with
naxalite militia against their common enemy- the state- and for common cause- resistance against
further aggression into forest.
Forest rights and environmental jurisprudence
If introduction of the Forest (Conservation) Act, 1980 is counted as a turning point, though
arguably, it is the turning point since the legislation marked a paradigm shift in terms of its
erstwhile state policy which could not even optimize deforestation and forest degradation. 8 On the
contrary, however, India already declared its commitment to protect human environment at
Stockholm in 1972.9 If not legal, Union of India was under moral obligation to opt for effective forest
regime in its own interest to stand before international community with proud voice.
7 Vide Section 4(m)(ii), the Panchayats (Extension to the Scheduled Areas) Act, 1996.
8 Around 3000 B.C., nearly 80% of India was forested. Subsequent invasions changed entire landscape. First era in
deforestation was shortly after absorption into British Empire. The 1894 British Forest Policy accorded priority to
commercial exploitation, state custodianship and permanent cultivation.
Second major deforestation was in 1940s with demands of World War II and transition to independence for India and
Pakistan in 1947. The National Forest Policy 1952 envisaged increasing forest areas to one third of the total land area,
but was difficult to implement. Forestland had to be used for development. In late 1950s and early 1960s diversions
occurred for farming under ‘Grow More Food’ programme. 1970 to 1980 witnessed acute shortage of fuel
wood and fodder in rural areas resulting in further exploitation. In addition, developmental refugees were resettled in
forest areas.
Data for post 1980 period shows that rate of diversion of forest to non-forestry activities declined to around 15,5000
ha (hectre area) per annum post 1980 as compared to 150,000 ha (hectre area) per annum prior to 1980. Total area
under forests has nearly stabilized at around 64 Mha (mega hectre area). Thus restoration of degraded lands assumes
priority in planning and implementation.
Meenakshi Joshi and Preet Pal Singh, Tropical Deforestation and Forest Degradation: A Case Study from India.
Available at: http://www.aseanbiodiversity.info/Abstract/52001691.pdf accessed on March 28, 2011.
9 Vide Stockholm Declaration of the United Nations Conference on Human Environment, June 16, 1972. Available at:
http://www.unep.org/Law/PDF/Stockholm_Declaration.pdf accessed on March 28, 2011.
145
In the then regime of reserve forest as protected area, traditional forest dweller used to be
treated as stranger. By then, however, developmental refugee resorted to forest. Together they formed
heavy resistance to state official they were deprived of right to minimum livelihood. Poacher
and timber trader availed this opportunity to offer them minimum wage in exchange of their
maximum service to commit unlawful activities against forest. Besides political process initiated at
Stockholm, the forest department of West Bengal initiated an experiment at a remote forest range of
the state. Arabari- a milestone project after name of the forest range- was the genesis of transition
from earlier approach, where the forest was sacrosanct and any sundry human intervention was
inimical to forest, to modern approach, where forest includes the forest dwellers.10 In the
absence of endorsement of law, joint forest management spread elsewhere not as a matter of de jure
policy but as de facto one. By then, grass-root administration understood its efficacy. Since inception
of Arabari model in 1971, it took a quarter of century to convince Ministry of Environment and
Forests in favour of acceptance of partial recognition of benefit sharing through the Act of 1996 and
subsequent Act of 2006. Role of traditional knowledge of forest dwellers in conservation of forest is
now recognized by law. Also their right to (forest) homeland and bona fide interest, e.g. collection
of MFPs etc. have had endorsement of law. The laws, however, are yet to transcend statute
books to the benefit of its people.
On reverse side of the coin, ever-increasing pressure of population (read population explosion)
in general, and rural population in particular, extends existing jurisdiction of human habitat to the
detriment of ever-retreating forest cover over which efficacy of governance has had no hyperlink.
At the most, one may identify governance failure to cap its population growth- a contention
substantiated by earlier research work- which has put all these stakeholders at real stake as forest
is required for civilization and not vice versa.11 At the same time, however, a civilized intervention
on the part of state seems imperative to resist uncivilized intervention to the detriment of forest and
state requires one who is better aware of forest than offender. A forest dweller, and not a forest guard,
may be the best appropriate person to this end as (i) (s)he is an insider and spends her/his life in the
forest. Forest is her/his home and the world; (ii) (s)he saves forest cover from external aggression
in her/his own individual and collective interest as her/his survival is hyperlinked to the same.
What seems required is capacity-building through scientific training to supplement traditional
knowledge so that (s)he may not harm forest out of ignorance. The state must curb ill practices
like shifting agriculture, which is inimical to forest cover, on the part of forest people; but
through negotiation instead of coercion as the state cannot afford to earn hostility while active
support of their traditional knowledge, along with vigilant surveillance day-in and day-out, helps
state attain best sustainable forest management rather than paid servant from outside to whom this is
a means of livelihood in lieu of salary and superannuation benefit from public exchequer.
In terms of great public service forest dwellers offer to civilization and environment,
10 For official reference, see “For the Future of Forests: Joint Forest Management”. Available at: http://moef.nic.in/
divisions/ic/wssd/doc3/chapter3/css/Chapter3.htm accessed on March 28, 2011.
11 For details, refer to Charts no. 1 and 2, in S. C. Gulati and Suresh Sharma, Population Pressure and Deforestation
in India, Population Research Centre, Institute of Economic Growth, Delhi. Available at: http://www.corecentre.
co.in/Database/Docs/DocFiles/population_pressure.pdf accessed on March 28, 2011.
146
recognition of their bona fide claims over the minor forest produce etc. as minimum means of
livelihood was long pending to them as a matter of entitlement in the eye of law. This is no property
right as such but access to forest property which belongs to state as trustee of the community at
large under the doctrine of eminent domain. They deserve the same as a matter of right and there is
a corresponding duty of state to implement wisdom of its legislature to this end.
Environment is no sacrosanct juridical grandeur but integral part of human life. As forest
dwellers are nearer to nature, their survival ought to be construed to constitute insignia of and sine
qua non for environmentalism. Indigenous intervention, therefore, is so often than not part
of natural process and not anthropogenic intervention the way we perceive intervention on the
part of civilization in the name of development. It is appropriation of their traditional knowledge
which makes their intervention wiser and there lies the difference. Being original homosapiens, indigenous folk is part of fauna which constitutes environment in true sense of the term.
Forest rights as appurtenant to social justice
While indigenous people offer service to public life, they hardly expect public
service in lieu of salary etc. as their world view is unlike that of (so called) civilized people. At
the same time, however, they require means of livelihood to sustain themselves. Hohfeld serves
juridical prudence here through his combination of jural correlatives one of which is right-duty and
existence of one necessarily refers to that of another in the pair. 12 Thus offering them recognition
of their overdue right to optimum means of livelihood through access to common property in
their respective surroundings is imperative not only for the sake of environ but also for attainment of
social justice to forest dwellers as members of ethnic minority in India. Social justice requires
much more contribution to be offered on the part of state to members of its ethnic minority.
It is better late than never that state has initiated required steps after half a century though
implementation of the same is still in process.
Access to common property to eradicate their common poverty is minimal recognition
of their contribution to forest cover while they deserve affirmative action on the part of state to
proceed further for sustainable development in forest land- a new mantra in post-Rio world.13 While
12 For details, refer to Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning,
The Yale Law Journal, Vol. 26, No. 8, (June, 1917), p. 710. Available at: http://www.jstor.org/pss/786270 accessed
on March 29, 2011.
13 Rights extend over the ownership of property or its use. What sort of property are forests? As noted, in common
law, property can be of two types, private and common. The latter can be further subdivided into common property
of ancient origin, such as communal lands, and common property of modern origin which comprises public services
and places administered by the state. Forests come mostly under common property of ancient origin. Panchayat land,
grazing land owned commonly by village, and coast land, are some other examples of common property of ancient
origin.
Chhatrapati Singh, Common Property and Common Poverty: India’s Forests, Forest Dwellers and the Law, Oxford
University Press, New Delhi, 1986, p. 9.
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affirmative discrimination was introduced by Ambedkar to offer social justice to members of
caste minority, if the same may not be applicable to those of ethnic minority, they are entitled
to avail similar support suitable to them. At least, they deserve open-ended provision in the
Constitution to this end- the way there is provision for women and children under Article 15(3) of the
Constitution. Regrettably, the Constitution of India falls short to this end as ethnic minority seems to
have emerged as an area of concern at subsequent point of time. No wonder that, while delivering his
lectures on Minorities and the Constitution in 1981, Jaganmohan Reddy dealt with religious minority
only- not even caste minority- forget ethnic.14 The way a former judge of the Apex Court handled
the subject conveyed a message that, even during early eighties, the state was not matured enough to
conceive idea of minority in India beyond religion.
With the passage of time, however, newer trajectories of minority are appreciated- e.g.
caste minority, ethnic minority and sexual minorities being the latest addition- through legislation,
administrative action and judgments in favour of their interest. A need of this hour is an inclusive
state policy, at least through creative construction of the Constitution, to mainstream ethnic minority
as well.
As earlier research work has substantially established a set of sui generis forest
rights in favour of traditional forest dwellers,15 and the state has recognized similar rights (if not
exactly the same), what seems left is a missing link between jurisprudence and law of the land. A
hyperlink between these two is a judicial construction through which forest rights of tribal people
may constitute social justice to bridge the gap. Conferment of legal status to them as ethnic minority
may help the state to this end. The state ought not to be content with the same, but carry
forward the process through further empowerment of this community.
14 Vide P. Jaganmohan Reddy, Minorities and the Constitution, Sir Chimanlal Setalvad Law Lectures,
University of Bombay, 1981.
15 In the strict sense forest dwellers have traditionally not recognized their habitat as their property, common or private,
since such a legal title did not exist in their world view. They perceived it as merely being in their possession.
Nonetheless the rulers within whose domain the land fell claimed ownership over such forests, even when they did
not collect revenue from the native people or interfere with their lives in any manner. The British made use of this fact
of monarchical claim over land to introduce the institution of common property over which the sovereign has absolute
rights. ………
Since it was the practice of Indian rulers not to interfere with the lives of forest dwellers, including their use of forest
produce, it took almost eighty years of confrontation and suppression before the colonial powers could devise a
sufficiently complex legal mechanism to overcome resistance and gain control over common land and its resources.
………
Through this legal mechanism what the British actually achieved in the eyes of the world, and also perhaps to the
satisfaction of their own conscience, was the appearance of following a civilized legal procedure for the acquisition
of land for a ‘public purpose’. The ‘public purpose’, as any economic history of India will reveal, was nothing but
economic benefit for England and its colonial power, not the betterment of the tribals. In applying this legal procedure
what the British left strategically unsaid is that justice in this respect presupposes the sharing of a common cognition
about the institution of property, especially private property.
Supra, n. 12, p. 9-12.
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While rights and development at loggerheads
Another conundrum of recent relevance deserves optimum space while forest rights and
development are set at loggerheads. The conundrum involved herein engages a subtle jurisprudential
underpinning as well. At the threshold of globalization, whether and how far human rights
in general, and forest rights in particular, may prevail over development agenda of given
social order seems to be a moot point of the polemics. In such circumstance, even if darker side
of development agenda which perpetrates adverse environmental impact all over the world (like
climate change) may be set aside, there is jurisprudent reasoning to plead prevalence of forest rights
over and above a(ny) development agendum to the detriment of community.
In the absence of national jurisprudence in this post-colony, resort to international
law may help offer better arguments to this end. Indeed international law is by and large occupied
with states as its subjects. A UNEP-UNCTAD joint symposium once offered international
community opportunity to humanize the same,16 but the instrument was too soft to set hitherto
erroneous mode of development on (right) track. Thereafter, however, rights movement has had
a long march to take its stake. At the same time, development seems not far behind as the same is
in close nexus with globalization. But the way earlier wisdom subsided is no longer plausible
nowadays as there is a set of intergovernmental organizations like UN Permanent Forum on
Indigenous Issues (UNPFII) to deal with the same.
As fulcrum of this effort is forest rights, reference of UNPFII is relevant here since the
same takes care of forest rights as well. The forum was instrumental to convince the UN General
Assembly adopt a resolution.17 Thus the United Nations Declaration on the Rights of the Indigenous
Peoples, 2007 was introduced to assert forest rights (among others) in favour of indigenous
population all over the world. Accordingly, under Article 27, read with 43, of the instrument, rights
pertaining to their lands, territories and resources constitute minimum standards for their survival,
16 Our first concern is to redefine the whole purpose of development. This should not be to develop things
but to develop man. Human beings have basic needs: food, shelter, clothing, health, education. Any process
of growth that does not lead to their fulfilment- or, even worse, disrupts them- is a travesty of the idea
of development. We are still in a stage where the most important concern of development is the level of
satisfaction of basic needs for the poorest sections in each society which can be as high as 40 per cent
of the population. The primary purpose of economic growth should be to ensure the improvement of
conditions for these groups. A growth process that benefits only the wealthiest minority and maintains or
even increases the disparities between and within countries is not development. It is exploitation.
Quoted from text of the Cocoyoc Declaration, 1974; adopted by a UNEP-UNCTAD Symposium on “Patterns of
Resource Use, Environment and Development Strategies”. Available at: http://www.transcend.org/tms/2010/03/
the-cocoyoc-declaration/ accessed on March 30, 2011.
17 United Nations General Assembly Resolution A/RES/61/295, dated October 2, 2007. Available at: http://
daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement accessed on
March 30, 2011.
149
dignity and well-being.18-19 In India, however, these rights were partially fulfilled under the Acts
of 1996 and 2006- not without reason that the same voted in favour of the resolution. The catch,
however, lies elsewhere. So far as attainment of “the minimum standards” is concerned, as per its
express commitment, India is required to fulfil the same and the assignment is pending to be taken
care of till date.
In such apparently neat texture of indigenous rights map, what rings alarm is advent of Indian
development agenda to the detriment of its commitment to the Assembly. The way environment,
forest and wildlife related clearances are liberally distributed by the Union- irrespective of prohibited
areas for coal mining- raises apprehension that there may be hidden commitment to vested corporate
interest to clear its forest. A minute study of official version speaks for itself to this end.20
The matter raises alarm also because of its commitment to UNFCCC regime visa-vis omission of excess emission to help international community address climate change out of
anthropogenic intervention.21 Thus Indian development agenda seems inimical to both forest dwellers
and environment.
Conclusion
To sum up inputs put forth in this effort, this may safely be said that hitherto rights offered to
forest dwellers are to help the state tackle illegal logging, poaching etc rather than to attain social
justice through their emancipation. Recognition of minimal forest rights are thereby offered
as by-product of the process and not as an objective per se. Thus the state is yet to receive its own
18 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent,
impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and
land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories
and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples
shall have the right to participate in this process.
Article 27, the United Nations Declaration on the Rights of the Indigenous Peoples, 2007.
19 The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the
indigenous peoples of the world.
Article 43, the United Nations Declaration on the Rights of the Indigenous Peoples, 2007.
20 “... since May 29th 2009, there has been a determined effort to bring transparency and professionalism in the granting
of environmental and forestry clearances. The status of all pending cases is now available with relevant details on the
MOE&F website. Environmental appraisal committees have been reconstituted to ensure that there is no conflict of
interest. Regular monitoring of pending cases in crucial sectors is taking place with the ministries concerned. This is
already having impact.
...
...
...
“Nine major coalfields have been taken up for identification of prima facie “go/no go” areas for coal mining from
the point of view of forestry clearances. The results of this preliminary analysis, done for the first time, have been
submitted to the PM. Coal mining projects will get environmental approval based on the ultimate production capacity
thereby obviating the need for repeated clearances when expansion takes place.
A note on Environmental and Forestry Clearances, issued by Ministry of Environment and Forests,
Government of India, New Delhi, dated March 31, 2010, p. 1.
21 For details, refer to (Indian) National Action Plan on Climate Change, 2008. Available at: http://pmindia.nic.in/
Pg01-52.pdf accessed on March 30, 2011.
150
people in confidence and consequently at loss in terms of access to their treasure trove including
traditional knowledge, cultural expression etc. which constitute part of national heritage. As a
matter of fact, many of these are on their way to oblivion.
The forest in India faces aggression from external (f)actors: (i) organized smuggler (ii)
corrupt forest service cadre (iii) corporate entrepreneurship. While traditional forest dwellers are
caught by state agencies, and so often than not for trivial issues, to demonstrate their activities for
the sake of forest, forest seems subject to plunder from other quarters though state turned its blind
eye to the same. Not without reason that state earns hostility on the part of forest dwellers.
Non-state actors avail the opportunity of such state of affairs in the affairs of state. By the
time state recognizes minimal forest rights, they are convinced over futility of state institutionalism
and thereby involved in naxalite movements to fight against state coercive forces. The state is
thereby engaged in conflict with its own people and with those who could be instrumental to
protect its forest over at an affordable cost. It is all about MFPs what they collect anyway.
Last but not least, further aggression to dense forest may not only cost the state dear in
terms of forest cover and aggravated hostility on the part of forest dwellers. Also the same is likely
to strengthen non-state actors through active support on the part of forest dwellers which the state
cannot afford. If the state still continues to be engaged in such a self-defeating exercise, it
may face resistance from international community as erosion of forest cover exposes global
public interest to irreversible climate change and consequent damage seems catastrophic in
its effect. Prudence on the part of state, therefore, lies in adherence to inclusive governance to
offer social justice in favour of forest dwellers as ethnic minority. A state policy of offering
optimum forest rights is required to convey the message of social inclusion to mainstream forest
dwellers in larger interest of India. Albeit there is a caveat while ascertaining given identity of forest
dwellers and the same is no easy challenge for “the State” to determine who may be construed to be
entitled rights under emerging forest jurisprudence in India. This is but a divergent conundrum to be
dealt with elsewhere.
*****
151
Peacemaking Criminology
Dr. Vibha Hetu1*
Abstract
Society is always surprised by the new trends of crimes. The victims always bear the brunt of
pain and suffering and are usually at the receiving end of justice. The offenders are likely to
be punished by the Criminal Justice System, and in due course of punishment end up being
humiliated by the system and society as a whole. It relegates the criminals to the status of the
‘enemy’, a form of dehumanization that both prevents offenders from taking responsibility for
the harms they perpetrate and reinforces society’s unequal power relationships. Peacemaking
criminology is a new endeavor which has solutions to the problems concerning victim and
offender. It is less a theoretical perspective and more a philosophy of non – violent conflict
resolution. It draws together an eclectic range of approaches to the study of crime and criminal
justice and shares many of its proposals with the restorative justice movement for dealing with
the problems of crime and justice.
Keywords
Offender, criminology, restorative justice, treatment, reparation, victim
Introduction
Within the past decade, there has emerged within the fields of criminology and criminal
justice a perspective on crime, punishment and justice that has come to be known as Criminology as
Peacemaking (Pepinsky, 1991b; Pepinsky and Quinney, 1991; Quinney, 1991). The purpose behind
Peacemaking criminology is the elimination of violence from all areas of our lives. Proponents of
this perspective begin with the premise that we must understand the workings of power, for power
resides at the base of all forms of violence and subsequently eliminate the violence we do to each
other (Sullivan, 1980: 123-136; Tifft and Sullivan, 1980). By making power a central concern of
Peacemaking Criminology, the scope of its analysis is not limited to examining only those acts that
are defined by law as violent (Kennedy, 1970; Schwendinger and Schwendinger, 1970; Reiman,
1990) or by social science methodology as worthy of attention (Pepinsky, 1991a; Simpson, 1994).
Included in its purview is any power-based act that harms another (Tifft, 1979; 1994-5; Pfohl,
1994; Henry and Milovanovic, 1993). This includes violent acts that might be defined by some as
benevolent or managerially effective as well as those done in the name of justice (Miller, 1996).By
its endeavor to examine the economics of power and violence in all social situations, Peacemaking
criminology remains very much committed to examining violence and violence-producing processes
that are embedded in the very structure of institutions and social arrangements.
1
Senior Research Associate and Executive member, Centre for Victimology & Psychological
Studies,
Jindal Global Law School, O.P. Jindal Global University (JGU), Sonipat Narela
Road,
Near Jagdishpur Village, Sonipat, Haryana - 131001, NCR of Delhi, India.
*
152
According to Peacemaking criminology, there is an integral link between power, violence,
peace, and justice, in that there can be no peace without justice and no justice through power- or
violence-based action regardless of the rationale offered for the violence (Prejean, 1993). The idea
behind the achievement of justice-done is the creation of equal well-being, where everyone in the
society is justly treated according to their need (Miller, 1976: 122-150). Justice that is collaborative
acknowledges from the outset that justice cannot be achieved by standardizing needs or dismissing
differences that exist between seekers of justice in a given social situation. It can be achieved only
when each person’s feelings, issues, realities, and needs are taken into account and differences are
reconciled, not compromised or homogenized (Piercy, 1976; Nader, 1990). Participation tends to
ensure reconciliation first and foremost because all differences begin to see the light of the day
(Mackey, 1990). At the same time, each person develops a sense that he or she is co-constructing
the meaning of reconciliation and that the project at hand is a joint project worthy of the complete
investment of one’s energies (Umbreit, 1995). It is important to clarify that justice is created by those
collaborating to reconcile their differences.
Criminology as Peacemaking accept rationales based on most basic elements of justice as
equal well-being: equal articulation of needs; equal access to the processes that affect the satisfaction
of needs; and equal participation in the evaluation of whether needs-satisfaction or well-being
has been achieved;and alternatively offers peace-oriented, social structural solutions to violence
that are even cost-effective (Krimerman and Lindenfeld, 1992; Freudenheim, 1988; Leary, 1988;
Sullivan, 1987).This is a philosophical approach to crime and justice, based on humanism, mutual
help, and beliefs that combine a spiritual perception alongside existentialism, Buddhism, pacifism,
and socialism (Barak, 2005). Researchers who adopt this perspective suggest the use of positive
humanistic tools such as mediation, problem solving, and mutual help instead of forced punishment
such as deterrence, penalties, retribution, or revenge (Sullivan and Tifft, 2001).By participating in
the processes that meet all basic human needs; each person experiences a fullness of being that is
overflowing. Abundance exists in the here and now. There is no longer a need for the exercise of
power. This is the path of the peacemaker.
Conceptual Basis of Peacemaking Criminology
Peacemaking criminology is a new concept and its virtues and factors defined here are
perceived as essential part of peacemaking process and have the power to direct individuals away
from victimization, behavioral disturbances, deviance, and distress. In the following, I discuss some
of the main aspects that I believe represent a Peacemaking perspective, which can therefore be
associated with Peacemaking criminology.
The Emergence of the Victim
Becoming a victim presupposes the successful communication of a harmful experience.
Overall it can be regarded as the result of an interaction or more generally of a communication
process (Holstein and Miller, 1990). Describing the socially relevant identification of victimhood in
terms of a communication process implies a sender and a receiver with different experiences.Seeing
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oneself as a victim can be regarded as the result of a process of reflection that is also dependent on
basic cultural traditions and relevant personal experiences.From a constructivist perspective, even
the subjective meaning of an experience is not self-evident, but rather the result of a process of
reflection and interpretation (Strobl, 2004:295). Consequently, the combination of social recognition
as a victim and self-identification as such results in four logical possibilities for the construction of
victimhood.
The actual victim: A person regards himself/herself as a victim and is also regarded as a victim
by relevant others.
The non-victim: A person does not regard himself/herself as a victim and is not regarded as a
victim by relevant others.
The rejected victim: A person regards himself/herself as a victim but is not regarded as a victim
by relevant others.
The designated victim: A person does not regard himself/herself as a victim but is regarded as a
victim by relevant others.
Whether self-labeling as a victim is relatively easy, relatively hard, or nearly impossible also
depends on knowledge, cultural values, attitudes, and beliefs (Burt, 1983:264-265).
Definition of Victim
There is increasing consensus among human rights lawyers about the advisability of adopting
a uniform definition of “victims.” The Basic Principles and Guidelines (United Nations Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power(paras. 8–9), 1985) offer the following
definition:
Victims are persons who individually or collectively suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of
their fundamental rights, through acts or omissions that constitute gross violations
of international human rights law, or serious violations of international humanitarian
law. Where appropriate, and in accordance with domestic law, the term “victim”
also includes the immediate family or dependents of the direct victim and persons
who have suffered harm in intervening to assist victims in distress or to prevent
victimization.
Problematic reactions to the victim’s experiences are generally known as secondary
victimization. However, a person can also suffer seriously when a negative, uncontrollable event
occurs not to him or herself but to a member of his or her family, to a relativeor to a close friend
categorized as secondary victims (Riggs and Kilpatrick, 1990; Boers, 1991). A person shall be
considered a victim regardless of whether the perpetrator of the violation is identified, apprehended,
prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the
victim.
More controversially, and not necessarily successfully, relatives of offenders are sometimes
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claimed to be secondary victims. In this context, the claim has its root in the literature on
prisoners’ families who have been variously described as the “hidden victims of crime” (Bakker
et al., 1978), the “innocent victims of our penal system” (Matthews, 1983), and “the innocent,
and often ‘forgotten’ victims within the criminal Justice system” (Howard League, 1994). As Light
explains, “the victims of crime include not only those who have had offences committed against
them, but also families and dependents of those convicted of offences, particularly if the offender is
sentenced to a period in prison” (Light, 1993:324-25).The families of prisoners experience numerous
difficulties, including severe stresses on family relationships, financial problems stemming from the
loss of wages or benefits and the additional expenses of supporting a prisoner, social stigma, and
an array of problems faced by children suddenly separated from imprisoned parents (Codd, 2008;
Comfort, 2008).
The police, the courts, and the health system will continue to respond according to its
programme of law enforcement and medical treatment. As a consequence of the crime, the victim
is not able to act as usual, his or her relatives and friends may first react to victims with increasing
helplessness and sometimes with anger, and after a while they may start to avoid contact with him
or her. Victimization has not only a physical and psychological impact but also a social impact, which
means that communication and interaction processes of everyday life are affected. From a constructivist
viewpoint, the world of a severely victimized person has really changed, and it may be difficult or even
impossible for him or her to bridge the gap between this new life-world and the everyday routines of his
or her relatives, friends, and colleagues. In this respect, a victim is thrown into a realm of reality where
a common understanding of exceptional and in most cases terrible experiences is not possible.
First, being a victim is regarded as something undesirable that has to be overcome sooner
or later.The victim is expected to choose the law as the decisive frame of reference even if the law
does not correspond with his or her personal feelings.The central element of the victim roleis to
cooperate with the police and other criminal justice functionaries. The victim is expected to put selfinterest last and to accept costs (e.g., time) and trouble (e.g., embarrassing questioning) to meet the
requirements of the police and the justice system (Parsons, 1968:428-479).
Strobl (1998) shows that the importance of the norm in terms of norm violation, the
seriousness of the injuries, and the amount of financial loss influence the assignment of victim
status.It is imperative that the representatives of society are able to understand the victim’s call
for help and the kind of help the victim needs. Language skills play an important role in convincingly
communicating the victim’s feelings towards experiencing victimization. Victimization is a process
rather than just an isolated incident. This is obvious in violent social contexts where the offender of
today might be the victim of tomorrow and vice versa (Black, 1983; Fattah, 1992; Miers, 2000).
The mental health outcomes of victimization and trauma exist along a continuum from
relatively mild and short-lived distress to life-altering and debilitating psychiatric disorders
(Weaver and Clum, 1995; New and Berliner, 2000). According to the Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV-TR) (APA, 2000), the criteria for a diagnosis of PTSD
(post-traumatic stress disorder) include having experienced or witnessed a traumatic incident
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that involved actual or threatened death, or serious bodily injury to the self or others, and having
experienced significant fear, helplessness, or horror as a result. Post-traumatic stress symptoms fall
into three categories: persistent re-experiencing of the traumatic incident (e.g., intrusive images,
dreams, flashbacks), avoidance of stimuli associated with the trauma (e.g., thoughts, people, places,
activities), and increased arousal (e.g., irritability, hyper-vigilance). Victims of crime may suffer
from a host of other emotional and psychological problems, which fall along various points on
the continuum of psychological responses to victimization, including depression, substance abuse,
suicidal ideation, and suicide attempts (Kilpatrick and Acierno, 2003).
The psychological impact of victimization often reaches beyond the primary victims to
secondary victims such as their families, friends, and communities. Witnessing violence at the
individual level and in the context of mass victimization may leave people severely traumatized
despite not having experienced the crime firsthand. Children who witness domestic violence
between parents are especially likely to experience adverse mental health outcomes owing to their
vulnerability and dependency onboth victim and perpetrator (Osofsky, 1995; Finkelhor, 2007). PTSD
is also common among family and friends of homicide victims (Kilpatrick and Acierno, 2003), in
which case trauma may be compounded by grief, a construct known as “traumatic grief” (Jacobs,
1999; Pfefferbaum et al., 2001). Even professionals working with crime victims may experience
significant distress and symptoms of trauma, a phenomenon that has been variously described as
“vicarious traumatization” (McCann and Pearlman, 1990), “secondary traumatic stress” (Figley,
1995), and “traumatic countertransference” (Herman,1992).
Reparation
It is generally understood that the right to reparation has a dual dimension under
internationallaw: (a) a substantive dimension to be translated into the duty to provide redress for
harm sufferedin the form of restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition; and (b) a procedural dimension instrumental in securingthis substantive redress.
The procedural dimension is subsumed in the concept of the duty toprovide “effective domestic
remedies” explicit in most major human rights instruments. Asstated authoritatively by the Human
Rights Committee, the duty of States to make reparationsto individuals whose rights under the
Covenant have been violated is a component of effectivedomestic remedies.
The Basic Principles and Guidelines of United Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, 1985,offer a broad categorization of reparations
measures:
• Restitution refers to measures which “restore the victim to the original situation before thegross
violations of international human rights law and serious violations of internationalhumanitarian law
occurred,” for example, restoration of liberty, enjoyment of humanrights, identity, family life and
citizenship, return to one’s place of residence, restoration ofemployment and return of property.
• Compensation “should be provided for any economic damage, as appropriateand
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proportional to the gravity of the violation and the circumstances of each case,resulting from gross
violations of international human rights law and serious violations ofinternational humanitarian
law,” such as lost opportunities, loss of earnings and moraldamage.
• Rehabilitation “should include medical and psychological care as well as legal and
socialservices.”
• Satisfaction is a broad category of measures, ranging from those aiming at a cessation of
violations, to truth-seeking, the search for the disappeared, the recovery and reburialof remains,
public apologies, judicial and administrative sanctions, commemoration andmemorialization, and
human rights training.
• Guarantees of non-repetition is another broad category which includes institutionalreforms
tending towards civilian control of military and security forces, strengthening judicialindependence,
the protection of human rights workers, human rights training, thepromotion of international human
rights standards in public service, law enforcement, themedia, industry, and psychological and social
services.Right to reparation is becomingfirmly establishednot only in doctrine as an integral part of
international criminal law, but also in practice and promises to stimulate further developments in the
field of reparations.
Material compensation for individuals has received more attention but other benefits are
receiving increasinglyattention as possible elements of such programmes; for instance:
• Symbolic reparationsTruth commissions are increasingly proposingmore complex
reparations measures such as symbolic reparations. Individualized letters ofapology signed by the
highest authority in Government, sending each victim a copy of thetruth commission’s report and
supporting families to give a proper burial to their lovedones are some of the individual symbolic
measures. Some of the collective symbolic measures arerenaming public spaces, building museums
and memorials, rededicating places of detentionand torture, turning them into sites of memory,
establishing days of commemorationand engaging in public acts of atonement. Like other reparations
measures, symbolicbenefits are, at least in part, geared towards fostering recognition.
• Medical servicesThe notion of “rehabilitation”owed to victims includes medical
servicessuch as psychiatric treatment, psychological counseling and psychological rehabilitation.
This constitutes a very effectiveway of improving the quality of life of survivors and their families.
• Other forms of rehabilitation Several reparation programmes have established
specificmeasures to restore the good name of victims by making publicdeclarations of their innocence,
expunging criminal records, and restoring passports,voting cards and other documents to rehabilitate
not just the health of victims but what may be called their “civicstatus.” Their importance goes well
beyond reasons of expedience to provide recognitionto victims as rights holders.
• Collective reparations. A public apology is a collective reparations measure, in the sense
that the collectivity madeup of all the members of a given group, a State, a legal entity, receive a
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particularbenefit, in this case an apology. Collective reparations are not only symbolic; some are
material, as when a school or ahospital is built as reparations, and for the sake of a particular group.
Meeting the Emotional Needs of the Victim
Acknowledging that criminal victimization may profoundly affect the psychological and
emotional well-being of victims, some of the psychological interventions have been developed
to reduce adverse mental health outcomes and improve the psychological health and well-being
of victims.Generally, there are two major ways to overcome an adverse “actual state”and to reach
the “desired state”; namely, through a problem-centered solution modifying the actual state, which
constitutes the problem (proactive coping), or through a reaction-centered solution or internal
adaptation modifying the desired state (of internal perception and evaluation structures) that has
been making the actual state a problem (accommodative coping) (Brandtstadterand Greve, 1994;
Greve and Strobl, 2004). A third option is avoidance, although this cannot be seen as coping in
the sense of solving or resolving a problem (Haan, 1977; Vaillant, 2000; Greve and Strobl, 2004).
The victim’s actual coping reaction is dependent on various factors such as subjective perception
and interpretation of the event, individual values and beliefs, and expectations placed on the social
environment:
Coping is a process that does not occur in isolation but in social contexts with
specific values and norms. Alongside the social evaluation of certain reactions as
being desirable or undesirable, the social framing of reality always leads to a preselection of what is at all conceivable and can be chosen as an action option by the
individual. (Greve and Strobl, 2004:204)
Therefore, it is important for a traumatized person to overcome terrible experiences to be able
to participate in everyday life (Orth, 2000).
Therapy is directed toward modifying maladaptive behavior and fostering adaptive
behavior. In therapy, the primary goal is to help an individual and/or group achieve more effective
coping behavior. In the twentieth century significant advances have been made in the treatment
of maladaptive behavior. These include the development, on a biological level, of methods for
correcting or alleviating brain pathology and related organic conditions that impair thought, feeling,
and action; on a psychosocial level, of a variety of methods for modifying maladaptive behavior,
fostering more effective coping techniques, and opening channels for growth; and on a sociocultural
level, of methods for correcting or alleviating pathological social conditions and the maladaptive
behaviors of entire communities or even societies.
1. Biological Therapy
Biological approaches to therapy mayembrace practically any branch of medicine
depending on the needs of the particular individual.Three biological treatment techniques: (a)
chemotherapy (b) electrotherapy, and (c) brain-wave therapy are discussed.
1.1 Chemotherapy
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During the last two decades there has been an extraordinary acceleration in the use of
chemicals in the treatment of abnormal behavior, often with dramatic results.
Types of drugs used: The most commonly used drugs in chemotherapy fall into three
major categories: (a) the antipsychotic drugs, or major tranquilizers, (b) the antianxiety drugs, or
minor tranquilizers, and (c) the antidepressant drugs.
1.1.1 The antipsychotic drugs, or major tranquilizers
The phenothiazines introduced in the early 1950s have remained the most popular of the
major tranquilizing drugs. Two of these drugs, chlorpromazine and trifluoperazine HCI (marketed
as Thorazine and Stelazine, respectively), have proven highly successful in calming psychotics
manifesting emotional tension, disordered thought processes, and motor hyperactivity.
1.1.2 The antianxiety drugs, or minor tranquilizers
Minor tranquilizers are commonly used for reducing tension and anxiety in normal individuals
during periods of severe stress as well as in the treatment of neurotic and psychosomatic disorders.
Minor tranquilizers may also be used as a part of the total treatment program for psychotics and for
persons who have formerly been addicted to alcohol or other drugs. Both with normal individuals
undergoing crisis and with persons being treated for more severe psychopathology, the minor
tranquilizers are frequently used to help induce relaxation and sleep.
1.1.3 The Antidepressants
The persons with depressive reactions need “mood elevator” that will energize them
rather than tranquilize. Among the more widely used of these have been phenelzine (Nardil) and
isocarboxazid (Marplan). Other categories of antidepressants include the tricyclic derivatives such
as Tofranil and Sinequan, and the amitriptyline derivatives such as Elavil and Triavil.
1.2 Electrotherapy
There are three forms of therapy that involve the influence of electric current on the
functioning of the central nervous system. These are: (a) electroconvulsive therapy, (b) electrosleep
therapy, and (c) the surgical implantation of microcircuitry.
1.2.1 Electroconvulsive Therapy
Electroconvulsive procedures have been refined to the extent that convulsions are
minimal and ECT is considered a relatively safe form of treatment (T. D. Hurwitz, 1974).
Although electroconvulsive therapy has not proven effective in the treatment of schizophrenics,
it has been found to be highly effective in the treatment of depressives. ECT is now used chiefly
for the rapid alleviation of depression in suicidal individuals.
1.2.2 Electrosleep Therapy
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In one of the first studies of electrosleep in the United States, Rosenthal and Wulfsohn
(1970) reported favorable preliminary results with a group of more than 40 outpatients suffering
from chronic anxiety; depressive states and associated insomnia. Unfortunately, later studies
have shown less promising results, and the types of disorders for which electrosleep may be
appropriate, as well as its long-range effectiveness, remains to be ascertained (Astrup, 1974;
Brown, 1975; Hearst et al., 1974).
1.2.3 Implantation of microcircuitry
The surgical implantation of micro-circuitry can help to control some forms of maladaptive
behavior that are presumably associated with pathological brain functioning, such as episodic
homicidal impulses or chronic suicidal behavior. In fact, it is not beyond the realm of possibility that
manic-depressive in individuals might one day be able to control extreme mood swings with electrical
stimulation of the brain.
1.3 Brain-wave Therapy
It has been suggested that the use of BFT (Biofeedback Training) for the control of brain
waves and muscle tension could be particularly helpful in overcoming chronic anxiety and tension.
Townsend, House, and Addario (1975) found biofeedback-mediated relaxation therapy far superior
to group therapy in the treatment of chronic anxiety.
2. Psychosocial Therapy
Psychotherapyaims toward changing maladaptive behavior patterns, minimizing or
eliminating environmental conditions that may be causing and/or maintaining such behavior,
improving interpersonal and other competencies, resolving handicapping or disabling inner conflicts
and alleviating personal distress, modifying inaccurate assumptions about oneself and one’s world
and fostering a clear cut sense of one’s self-identity and the opening of pathways to a more meaningful
and fulfilling existence. The psychotherapist does have certain assets on his side, however, the major
one being the inner drive of the individual toward integrity and health.
2.1 Psychoanalytic Therapy
Psychoanalytic therapy is an intensive, long-term procedure for uncovering repressed
memories, motives and conflicts presumably stemming from problems in early psychosexual
development and helping the individual resolve them in the light of adult reality. It is called
Freudian Psychoanalysis. Four basic techniques of this form of therapy are free association, dream
interpretation, analysis of resistance and analysis of transference.
2.1.1 Free Association
The therapist helps the person analyze the thoughts and feelings lying in his unconscious
mind by letting the person say whatever comes to his mind.
2.1.2 Dream Interpretation
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A dream has two kinds of content: manifest content, which is the dream as it appears to the
dreamer, and latent content, composed of the actual motives that are seeking expression but are so
painful or unacceptable that they are disguised. The process by which the latent content of the dream
is transformed in to the less painful manifest content is called dream work.
2.1.3 Analysis of Resistance
Resistance prevents painful and threatening material from entering awareness, it must be
broken down if the individual is to face his problems and conflicts, and deal with them in a realistic
manner.
2.1.4 Analysis of transference
The pathogenic effects of an undesirable early relationship are counteracted by working
through a similar emotional conflict in a therapeutic setting. Since, the person’s reliving of his own
pathogenic past in a sense re-creates his real-life neuroses; this experience is often referred to as a
transference neurosis.
2.2 Behavior Therapy
Rather than exploring inner conflicts and attempting cognitive change, behavior therapy
specifies maladaptive behavior to be modified and the adaptive behavior to be achieved directly
by manipulating environmental contingencies through the use of reward and punishment. The
ultimate goal is not only to achieve the desired response but to bring them under the control and selfmonitoring of the individual. Key techniques of behavior therapy are as follows:
2.2.1 Simple Extinction
The simplest way to eliminate a maladaptive behavior is often to remove the reinforcement
for it, especially in situations where maladaptive behavior is reinforced unknowingly by others.
2.2.2 Systematic Desensitization
The method of desensitization is aimed at teaching the client to emit a response which is
inconsistent with anxiety while in the presence (real or imagined) of the anxiety-producing stimulus.
Wolpe (1961, 1963, 1969) has assumed that most neurotic patterns fundamentally are conditioned
anxiety responses, and to deal with it he has applied many approaches.
2.2.2.1 Training in relaxation
The individual is trained to achieve a state of complete relaxation through meditation,
hypnosis and drugs.
2.2.2.2 The construction of hierarchies
The anxiety hierarchy is a list of related stimuli ranked in descending order according to the
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amount of anxiety they evoke in the client.
2.2.2.3 Desensitization Procedure
Desensitization Procedure continues until the client is able to remain in a relaxed state while
vividly imagining the scenes that formerly evoked the greatest anxiety. In in vivo desensitization
the client is asked to expose himself in reality to situations to which he has just been desensitized in
imagination. This appears to accelerate the desensitization procedure and may be the best method for
individuals who do not respond to imagined anxiety-eliciting situations in the same way they do to
real-life situations.
2.2.3 Implosive therapy
Stampfl and Levis (1967, 1973) are the foremost developers of Implosive therapy in which
the therapist deliberately attempts to elicit a massive flood or implosion of anxiety and with repeated
exposure in a safe setting, the stimulus loses its power to elicit anxiety and the neurotic avoidance
behavior is extinguished.
2.2.4 Aversion Therapy
The first formal use of aversion therapy was made by Kantorovich (1930), who administered
electric shocks to alcoholics in association with the sight, smell and taste of alcohol. It has been
widely used in the treatment of a wide range of maladaptive behaviors including smoking, drinking,
overeating, drug dependence, gambling, and various sexual deviations such as fetishism. The basic
idea is to reduce the temptation value of stimuli that elicit undesirable behavior by the removal of
positive reinforcers through punishment.
2.2.5 The Systematic Use of Positive Reinforcement
Response shaping, modeling and token economics are among the most widely used systematic
programs for the application of behavior therapy; and are achieving notable success particularly in
institutional settings.
2.2.5.1 Response Shaping
Positive reinforcement is often used in response shaping; that is in establishing a response
which is not initially present in the individual’s behavior repertoire.
2.2.5.2 Modeling
Response shaping can be acquired much more readily if the subject observes a model and is
then reinforced for imitating the model’s behavior.
2.2.5.3Token Economies
Appropriate behaviors may be rewarded with tangible reinforcers in the form of tokens that
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can later be exchanged for desired objects or privileges. The token economy resembles the outside
world where the individual is paid for his work in tokens (money) that he can then exchange for
desired objects and activities.
2.2.6 Assertive Training
Assertive training helps individuals in developing more effective interpersonal skills
by overcoming conditioned anxiety responses that prevent them from speaking up for what they
consider to be appropriate and right.
2.3 Cognitive Behavior Therapy
Aaron Beck (Beck and Weishaar, 1989)acknowledges that disordered cognitions are not a
cause of abnormal behavior or emotions, but rather are an intrinsic (yet alterable) element of such
behavior and emotions. If the critical cognitive components can be changed, according to this view,
then the behavior and maladaptive emotions will change. There are three approaches to cognitivebehavior therapy: (a) the rational emotive behavior therapy of Albert Ellis, (b) the stress-inoculation
therapy of Donald Meichenbaum, and (c) the cognitive therapies of Aaron Beck.
2.3.1 Rational Emotive Behavior Therapy (EMT)
According to Albert Ellis (1958, 1973, 1975, 1989; Ellis and Dryden, 1997) rational therapy
places heavy emphasis on cognitive changes designed to help the individual deal effectively with
his irrational should, oughts, and musts, to grow as a person, and to live a creative, emotionally
satisfying, and fulfilling life.
2.3.2 Stress-Inoculation Therapy
A second cognitive-behavioral approach to treatment is stress-inoculation therapy (SIT) a
type of self - instructional training focused on altering self-statements an individual routinely makes
in stress producing situations. Here the approach is to restructure these statements so as to improve
functioning under stressful conditions (Meichenbaum, 1985, 1993).
2.3.3 The cognitive therapies of Aaron Beck
Aaron Beck’s cognitive therapy approach was originally developed for the treatment of
depression (Beck et al., 1979; Hollon and Beck, 1978) and was later extended to anxiety disorders,
eating disorders and obesity, conduct disorder in children, personality disorders, and substance abuse
(Beck, 1985; Beck and Emery, 1985; Beck et al., 1990, 1993; Hollon and Beck, 1994). Recently its use
has been extended by Deale and associates (1997) to the controversial chronic fatigue syndrome
diagnosis.
2.4 Humanistic-Existential Therapies
The human-existential therapies are based on the assumption that the person has the freedom
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to control his own behavior that he can reflect upon his own problems, make choices, and take
positive action; therefore the person must take most of the responsibilities for the success of the
therapy with the therapist serving as counselor, guide and facilitator.
2.4.1 Client-centered Therapy
According to Carl Rogers (1951, 1961, 1966) the objective behind this therapy is to resolve
the incongruence of a person caused due to his inability to achieve his inherent potentialities for
growth by evading experiences that threaten his self-concept. As his self-concept becomes more
congruent with his experiencing, he becomes more self-accepting, more open to experience, and a
better integrated person.
2.4.2 Existential Therapy
In Existential therapy, the therapist shares himself- his feelings, his values, and his existence;
and let the client respond to him as he really is (Havens, 1974; May, 1969).
2.4.3 Gestalt Therapy
The term gestalt means “whole”. According to Frederick Perls (1967, 1969) gestalt therapy
emphasizes the unity of mind and body - placing strong emphasis on the integration of thought,
feeling and action by taking care of unfinished business that means working through unresolved
conflicts.
2.5 Interpersonal Therapy
In many cases, disordered interpersonal relationships are at the very center of an individual’s
problems and such cases require therapeutic techniques that focus on relationships rather than
individuals.
2.5.1 Marital Therapy
Marital Therapy includes training marital partners to use Rogerian nondirective techniques to
help each other clarify their feelings and interactions. Behavior therapy has been used to bring about
desired changes in the marital relationship by teaching the spouses to reinforce desired behavior and
to withdraw reinforcement for undesirable behavior.
2.5.2 Family Therapy
The most widely used approach to family therapy is the “conjoint family therapy” of Satire
(1967). Her emphasis is on improving faulty communications, interactions, and relationships among
family members and fostering a family system that better meets the needs of family members.
2.5.3 Transactional Analysis
Eric Berne (1964, 1972) characterized many of our social interactions as “games” - not
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because they are played “for fun” but because they are played according to a set of unspoken rules.
By analyzing the “games” we play, transaction analysis makes us aware of our basic coping patterns
and their consequences in terms of our interpersonal relationships and life adjustment.
2.6 Group Therapy
Treatment of patients in groups received a good deal of impetus in the military during World
War II, when psychotherapists were in short supply. It was found to be effective in dealing with a
variety of problems, and group therapy rapidly became an important therapeutic approach in civilian
life.
2.6.1 Traditional Group Psychotherapy
Group therapy has traditionally involved a relatively small group of patients in a clinic or
hospital setting, using a variety of procedures depending upon the age, needs, and potentialities of
the patients and the orientation of the therapists. The degree of structure and of patient participation
in the group process varies in different types of groups.
2.6.1.1 Didactic Group Therapy
It consists of the presentation of more or less formal lectures and visual materials to patients
as a group.
2.6.1.2 Psychodrama
It is based on role-playing techniques. This form of therapy, developed initially by Moreno
(1959), has proved beneficial for the patients who make up the audience as well as for those who
participate on the stage (Sundberg and Tyler, 1962; Yablonsky, 1975).
2.6.2 Encounter Group Therapy
Some encounter groups are directed toward helping normal individuals learn more about how
their feelings and behavior affect themselves and others, while other groups are directed primarily
towards the treatment of personal problems and hence tend to be an extension of traditional group
therapy.
2.6.2.1 Format and Goals
The focus is on providing an intensive group experience that helps members work through
emotional problems and achieve more effective coping techniques by permitting maximum freedom
of movement and activity.
2.6.2.2 Group Process
The emphasis in encounter groups is on the removal of masks, the free and honest expression
of feelings, and the resolution of confrontations and other interactions that emerge within the group.
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2.6.2.3 Termination and Reentry
The term reentry refers to the return of group members from the new climate of the encounter
group to the everyday world after once the termination date for the encounter group is over. There is
no set termination date for many encounter groups such as encounter groups for alcoholics and drug
addicts may be more or less continuous, with the membership changing over time as new members
enter the group and old ones leave it.
3. Sociocultural Approaches to Therapy
Sociocultural approaches to therapy typically involve the modification of the individual’s life
situation in order to provide a more supportive or therapeutic environment. It may involve changing
parental behavior that is reinforcing and maintaining a child’s maladaptive behavior; it may involve
foster-home care for children who are abused by their parents; it may involve the hospitalization of
an emotionally disturbed child or adult; or it may involve the placement of criminal offenders in a
correctional or penal institution.
3.1 Institutionalization and aftercare
It is sometimes necessary to remove persons such as children, adolescents, adults, and
the aged from their family and community settings and place them in mental hospitals or
inpatient clinics for treatment. Typically the sequence of events involves (a) admission to the
hospital, (b) assessment and treatment, and (c) discharge and aftercare.
3.2 Community mental health services
According to Denner (1974) qualified therapists must be available in the community, and the
resistance of family members as well as neighbors to having a “mentally ill” person in their midst
must be overcome. He has pointed out that returning “madness” to the community is not without
its problems. The family must be willing to participate in therapy, and the home must provide a
supportive environment. However, this approach tends to shift the criterion for hospitalization from
the severity of the individual’s symptoms to the degree of family support and the availability of
therapeutic supervision outside the hospital setting.
3.3 Modifying larger social systems
It is now being recognized that not only the immediate family but larger groups and
institutions in the society may behave in maladaptive ways and/or may be pathogenic for the
individuals within them. Thus there has been increasing concern not only with providing
community-based facilities for treating individuals and families but also with approaches to
modifying maladaptive conditions in organizations, institutions, and larger social systems.
4. Current trends in Treatment
4.1 Crisis Intervention
166
Crisis intervention has emerged as a response to a widespread need for immediate help for individuals
and families confronted with highly stressful situations. Often such people are in a state of acute
turmoil and feel overwhelmed and incapable of dealing with the stress by themselves. They need
immediate assistance. To meet this need, two modes of therapeutic intervention have been developed:
(a) short term crisis therapy involving face-to-face discussion and (b) the telephone “hot line”. These
forms of crisis intervention are usually handled either by professional mental health personnel or by
paraprofessionals.
4.2 The use of paraprofessionals
While many professionals in the field of mental health believe that only extensively
trained and experienced personnel are qualified to undertake the complex task of therapeutic
intervention, it has become increasingly clear that there are simply not enough professional
personnel to do the job. As a consequence, there has been increased interest in the possibility of
training nonprofessionals in therapy procedures. As Halleck (1971) has expressed it, “there are many
relatively uneducated but otherwise intelligent and sensitive persons in all strata of our society who
could and would make excellent therapists if they were properly trained”.
In addition, programs have been instituted to train and make more effective use of nurses,
clergy, police officers, and other professional personnel. Student volunteers provide another
reservoir of human resources for community service as paraprofessionals.Currently there would
appear to be three primary nontraditional sources of mental health workers:Community college
trainees, Lay volunteers, and Former patients.
Restorative Justice
Restorative justice stresses the different relationships that are harmed as a result of the
offense and the people involved in the resulting conflict. The purpose of restorative justice is to right
wrongs, to help heal and better the physical and nonphysical damage that arises from the offense
committed. Righting the wrongs mainly takes the form of response to the emotional, social, and
material needs of the victim of the offense, paving the way for reintegration of the perpetrators after
they take responsibility for their actions. Recently, the approach of restorative justice has gained
acceptance in the law enforcement systems of many countries (Shachaf-Friedman and Timor, 2008;
Timor, 2008; Zehr, 1995).
An elaboration by Susan Sharp, a Canadian scholar, has shed light on five key principles of
restorative justice as follows (Van Ness: 3).
1. To give full participation and consensus between the parties.
2. To try settling differences and heal the broken ties and relations.
3. To find full responsibility and direct accountability.
4. To reunite the divided and broken social order in the community.
167
5. To strengthen the solidarity in the community to prevent additional harms.
The Basic Principles on the use of Restorative Justice Programmes in Criminal Matters
defines the restorative process as any process in which the victim, the offender and/or any other
individuals or community members affected by a crime actively participate together in the resolution
of matters arising from the crime, often with the help of a fair and impartial third party. Restorative
Justice aims to achieve greater victim participation, more offender accountability and a larger degree
of community protection than is possible within the traditional criminal justice system (Shenk,
2001/2002: 190-1). The emphasis is on the restoration of ‘right relations’ (Thorburn, 2004/2005: 873).
Proponents of the encounter conception (restorative benefits of a meeting between the
stakeholders (the victim, the offender and the community) outside the criminal justice process) argue
that, in order to be restorative, the process must embody certain key values, such as ‘consensual
participation’ by the victim, offender and community representative, respectful dialogue between the
parties balancing the parties’ interests and the principle of voluntariness (Dignan, 2002: 172). They
advocate processes, such as victim-offender mediation, restorative conferencing and community
conferencing (Obold-Eschleman, 2004: 581). As long as a restorative process is used, proponents
regard the outcome as appropriate (ibid: 582).
Restorative Justice professes to be victim-centered, holding that ‘victims’ needs should be
the starting point of justice’ (Williams, 2005:58). It provides a forum wherein the voices of the victim
are both heard and respected advocating the empowerment of victims(Green, 2007: 176). This forum
is characterized by informality, dialogue and open communication thatenables the victims to tell
their stories and to express their emotions (Gay, 1999/2000: 1654). In addition, they are able to ask
offenders basic questions, such as why the crime was committed against them (Johnstone, 2002:66).
Furthermore, victims have to hear offenders express their remorse and apologize for having committed
the crime (Gay, 1999/2000: 1654). Restorative Justice Proponents contend that the interaction between
victim and offender increases the chances of this occurring (Strang and Sherman, 2003: 28). It is also
argued that complete restoration may require victims to be able to forgive the offender (ibid: 28). Apart
from the hearing and empowerment that participation in the process facilitates, the most significant
need of victims is restitution for the harm they have suffered, even if full material compensation
is not possible, partial compensation is still restorative due to its symbolic value (Johnstone, 2002:
66). Participation in a restorative process, coupled with the attainment of restorative outcomes, such as
compensation and apology, is said to provide victims with healing and ‘closure’ and therefore enable
them to put the offence behind them.
Restorative processes are those involving the active participation of victims and offenders, as
well as other affected individuals or members of the community in appropriate cases, in resolving
the issues consequent on the crime, usually with the assistance of a facilitator, and include ‘mediation,
reconciliation, conferencing and sentencing circles’. Restorative outcomes constitute agreements
reached in consequence of restorative processes including ‘responses and programmes such as reparation,
restitution and community service’, which aim to satisfy the parties’ needs and responsibilities and to
168
achieve ‘the reintegration of the victim and the offender’.
Restorative justice initiatives
This section comprises a detailed assessment of the most prominent of these initiatives.
• Victim-offender mediation (VOM)
Mediation between victims and offenders was the earliest informal process that embodied
restorative features. Direct mediation comprises a face-to-face encounter between the victim and
the offender in the presence of a trained mediator, who acts as an intermediary but who may not
‘propose or impose a decision on the parties’ (Dignan, 2005: 112). ‘Shuttle’ or indirect mediation is
an alternative for victims and offenders who do not wish to meet face-to-face (Williams, 2005: 79).
Although Restorative Justice Proponents regard it as a less satisfactory option, many victims prefer it
as it is seen as less risky (ibid: 79). VOM is advantageous to both victims and offenders. Victims are
given an opportunity to ask questions about the crime and to express their emotions about its impact.
Through this, they may experience empowerment, healing and closure (Elton and Roybal, 2003: 52).
• Restorative Justice Conferencing (RJC)
Restorative Justice Conferencing was used primarily for non-serious offences, such as theft
and other minor property offences, but it is being used with increasing frequency in the case of serious
and recidivists (Fox et al., 2006: 133).The aims of RJC, as regards offenders, are to confront them with
the impact of their behavior, to enable them to understand the reasons for it, to encourage them
to avoid future re-offending, and ‘to persuade them to apologize to their victims and to agree to a
reparative action plan’. RJCenables victims to express their emotions about the crime and to meet
and, if possible, forgive their offenders (Johnstone, 2002: 115-16). However, whereas direct victims are
entitled to material and symbolic reparation (in the form of an apology), indirect victims may receive only
symbolic reparation (Young, 2000: 238-9).Operating upon the assumption that RJC using reintegrative
shaming; benefits victims.
Reintegrative Shaming
One of the theoretical foundations of restorative justice is the reintegrative shaming approach,
introduced by Braithwaite (1989). It is founded on the idea that interventions are more effective
when they combine a process of shaming alongside reintegration of the offender in the normative
society. According to Maruna (2002), instead of trying to avoid the feeling of shame, rehabilitative
interventions should help manage the feeling of shame common to all offenders and those who are
deviant; by attributing their deviant behavior to external forces and not to their personalities: an
effective means for protection of the ego by using neutralization and minimization of the offense
which are essential mechanisms for offenders who want to rehabilitate (Harris and Maruna, 2006).
This can be done, by means of processes of self- and social acceptance.
• Family Group Conferences (FGCs)
Family Croup Conferenceis headed by a conference facilitator and participants include the
offender, his/her family and others invited by the family; the victim and his/her supporters and/or family
169
members; and a police representative (Goodey, 2005: 195). However, only the victim and offender may
actively participate in the process and the other participants merely play a supporting role (Dignan,
2005: 116-17).FGCsare regarded by their proponents as victim-centered, being aimed at meeting victims’
needs. Benefits to victims are said to include making them feel better about the offence, encouraging
reconciliation with the offender, bringing about consensual reparative outcomes and reintegrating both
victim and offender into their communities (Dignan, 2005: 117).
Like psychological and legal interventions, restorative interventions may not be appropriate
in all cases, depending on crime, offender, and victim characteristics. Feminist debates continue
about the suitability of restorative justice in cases of gendered violence, such as sexual assault and
intimate partner violence (Curtis-Fawley and Daly, 2005; Herman, 2005; Cameron, 2006).
Summary
Peacemaking criminology aim to transform the matter of the criminal justice system by
encapsulating its philosophical features-elimination of all kinds of violence from life;‘peacemaking
between the offender and the victim and the society as a whole’. Responses should be tailored to
the unique needs of victims to make it flexible and should avoid ‘one-size-fits-all’ solutions for
victims. It should not rely on assumptions about the psychological impact of crime based solely on
characteristics of the crime, offender, or victim.It acknowledges the fact that the creation of equal
well-being can be achieved only when each person’s feelings, issues, realities, and needs are taken
into account and differences are reconciled to be justly treated, not compromised or homogenized.
If Peacemaking criminology can take its way into the mainstream population, one can have
much hope of the future working towards institutionalizing equality rather than systems of hierarchy.
Itsees people as assets rather than potential deficits. It supports the peace movement by addressing
everyday people who are not currently a part of conflict on a greater scale in hopes that this type of
mindset will allow for peace and justice work to happen on a daily basis which will lead to movement
away from war and towards understanding.
Restorative justice shares a family of ideas about crime and crime control with Peacemaking
criminology. Like the latter, restorative justice movement aim to achieve more positive, humane
and community-centered society based on the slogan ‘restoration not retribution’.It is important to
recognize here that the idea of ‘restoration’ carries several different meanings. Within restorative
justice there is certainly a focus on repairing the damage that crimes cause in communities. An
important part of this focus is to insure that offenders are made to feel shamed for the crime they have
committed and the victims are able to forgive the offenders and are ready to put behind the crime.
Theoffender also has to provide ‘reparation’ that is more importantly understood as recognition on
the part of the offender that harm has been committed and their self-avowed practical commitment to
enabling the victim to live their lives without fear of intimidation or further harm. Thus, the victim’s
sense of security and value needs are ‘restored’.
There is a commitment to restoring the community’s wider sense of control and authority
170
over threats posed by offenders: the community’s own moral and ethical prerogatives need to be
revalidated in order to strengthen the bonds of attachment that encourage law-abiding behavior.
Finally, and most importantly, the goal of restorative justice is to restore the offender to a positive
social status within their community. Restoration, or reintegration of an offender’s previously
positive identity back in to the community’s values and ways of life, stands as a reaffirmation of the
community’s own security and cohesion.
Conclusion
The psychological impact and adverse mental health outcomes of crime and victimization
are significant and may reach far beyond primary victims to secondary victims such as the
families, communities, witnesses, and the public. Individuals, groups, and entire cultures may
suffer tremendously from experiencing or witnessing violence, and the mental health outcomes
of victimization, which range from relatively low levels of distress to life-altering and debilitating
psychiatric disorders, depend on the complex interaction of crime, offender, and victim characteristics.
Peacemaking Criminologyrecognizes that victimization plays a major role in future aggression and
criminal behavior, and a cycle of violence in the lives of victims and offenders. It seeks to disrupt the
vicious cycle of violence and focus instead on notions of strength, resiliency, recovery, and growth
for individuals who experience significant mental anguish.Despite significant human suffering,
many victims of crime have great resilience and are able to recover and heal from their experiences,
abandoning their ‘victim’ status to see themselves as ‘survivors’.
Acknowledgment
This article was presented in the 2nd International Conference on National and International
Perspectives on Crime Reduction and Criminal Justice organized by the Institute for Security Studies
/ Institut d’Études de Sécurité, Head Office / Sige principal, Tshwane (Pretoria), South Africa /
Afrique du Sud, at Sandton Sun Hotel, Johannesburg on 1st – 2nd December, 2011.(I received complete
funding by the Institute for Security Studies, South Africa to attend the conference)
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*****
178
A Cry Still Unheard: The Menace of Acid Attacks in India
Dr H.S.Rai1
Acid attack is one of the most alarming and horrific form of violence that a person can
commit against another person. It is an extremely violent crime by which the perpetrator of the
crime seeks to inflict severe physical and mental suffering on his victim. In India, the incidents
of acid attacks have been rising2. It is usually an act of revenge, motivated by jealousy or
hatred, because of personal relationship problems such as unfaithfulness, broken love affair
or rejection. Though acid attack is a crime which can be committed against any man or woman,
it has a specific class character in India. Most of acid attacks have been committed against women
and disproportionately impacts women3. These attacks are used as a weapon to silence and control
woman by destroying her body, i.e., primary constituent of her identity. It could convincingly lead
to conclusion that such attacks are form of gender based violence. Acid melts human flesh and bones
causing torturous pain, and leaves the victims mutilated and scarred for the rest of their lives. The
acid thrower not only wants to kill his victim, but also to do something worse than murder.
Unfortunately, acid attacks are not specifically addressed in Indian Criminal law. There is no
specific provision in the Indian Penal Code (IPC) to deal with the phenomenon of the acid throwing.
The lack of a specific law may lead to perpetrators being let off with a comparatively nominal
punishment. The rehabilitation programmes for victims of acid attacks or adequate compensation is
all most in oblivion in our legal system. In this article I will discuss the problems and issues victims
are facing due to the specific offence of acid throwing. It will consider the causes and consequences
of acid attacks. Thought and Suggestions on possible remedial measures have also been included.
Acid Throwing
Acid throwing or acid attack is a form of violent assault. It is defined as the act of throwing,
spraying, or pouring acid onto the face or body of a person “with the intention of injuring or
disfiguring or killing them out of jealousy or revenge”. Perpetrators of these attacks throw acid
at their victims, usually on their faces, burning them, and damaging skin tissue, often exposing
and sometimes dissolving the bones4. It is a cruel and premeditated crime. The culprit must plan
the attack by obtaining the acid, carrying it safely and stalking the victim. Thus it is usually not
spontaneous acts of anger though some people nearby the victim at the time of the attack are often
1
2
3
4
Assistant Professor, Merut College, Merut. U.P.
News paper across the length and breadth of India are reporting more and more cases of acid attacks taking place.
Though there is no official statistics , as it is not a specific offence in India, but a study conducted by Cornell
university in June 2011 said there were 153 attacks reported in the media from 1999to 2010. According to the
human right commission’s report, every year more than 400 girls are targeted on the acid on an average. 226th Report, Law Commission of India, Proposal for the Inclusion of Acid Attacks as Specific Offences in the
Indian Penal Code and a Law for Compensation for Victims of Crime (July 2009)
Living in the Shadows : Acid Attacks in Cambodia, 2003 A Report of Combodian League for the Promotion &
Defense of Human Rights (LICADHO).
179
injured accidentally as well. It takes an elaborate degree of sadism and depravity of indulge in
something as cruel and inhuman.
Acid throwers mainly use Sulfuric or Nitric acid, which are two of the strongest acids and
can eat through the skin, muscle and even bones of humans. Furthermore, if acid enters the eyes of
the victim during an attack, it damages these vital organs permanently. Sulfuric acid is very common
because it is used in vehicles and invertors’ batteries. Nitric acid is used by goldsmiths to purify gold
and separating it from silver and other metals. However, some other acid may also be used5. Thus
for this context acid means any substance which has the character of acidic or corrosive or burning
nature and is capable of causing bodily injuries leading to scars or disfigurement or temporary or
permanent disability.
Genesis Of Acid Attacks
Etiology of crime is a complex issue. Occurrence of a crime is a combined effect of various
social, economical and environmental factors. Growing social and political intolerance, declining
moral values, high level of violence and socio-economic problem within society are some of the
features more favorable to crime than others. Similarly heredity, physical defect, mental imbalance,
emotional insecurity, poor education, criminal associates are some of the personal factors crucial to
criminal behaviour. However aside from above general factors, there are some other specific factors
as well that should be kept in mind while dealing with acid attack or any other specific offences.
As stated earlier acid attack is often motivated by deep rooted jealousy and feeling of
revenge, the most common reasons for acid attack are refusal of marriage, extra marital relationship,
rejection of romance, love failure, domestic disputes and violence and denying dowry6. Other reasons
for acid attacks include robbery and disputes between neighbors7. Women are generally blamed for
family or personal relationship disputes in our society and accordingly they often became target of
acid attacks.
Acid attacks, like other forms of violence against women, are not random or natural
phenomena. Rather, they are social phenomena deeply embedded in a gender order that has historically
privileged patriarchal control over women and justified the use of violence to “keep women in their
places.” In many cases, women became the victims of acid attacks when they allegedly or actually
transgress hegemonic gender norms and roles that discriminate women and keep them in subordinate
positions8. Thus, the root of this phenomenon lies in our social system itself which has the inbuilt
discrimination and oppression against women. Women’s refusal or rejection in social life hurts male
ego and develops a feeling of insult and revenge. One of the easiest ways to hurt the woman in such
5
6
7
8
Burnt not Defeated Report by Campaign and Struggle Against Acid Attacks on Women(CSAAW), April 2007,
CSAAW Publication Bangalore.
Id
State of M.P. v. Jhaddu, 1991 Supp (1) 545.;
Ms Ameesha Oberoi, Domestic Violence and Acid Attacks, a Voice for the Victims,Uthan, 30,Issue 4, March
2012, Kalantry Sital and Kestenbanum, Jocelyn Getgen ,Combating Acid Violence In Bangladesh, India And
Cambodia,(2011)Avon, http://scholarship.law.comell.edu/avon_clarke/1
180
instances is throwing acid on her. It makes the man feel immensely and rather sadistically satisfied if
the woman is disfigured. Down the ages, this has been the major cause for atrocities against women9.
In their view, physical beauty plays a vital role in a woman’s life. In other terms, a disfigured woman’s
life is worthless; no one would be willing to marry her. It is not a matter of surprise that few women
also take revenge in similar manner and pour acid over a suspected mistress or second wife of her
husband because of the lack of awareness and realization resulted from the patriarchal social values
taught to them since the childhood.
Availability is another factor behind this crime as acid is used heavily for toilet cleaning
etc. acids are much more easily available and cheap weapon for perpetrators than fire arms. Acids are
available not only in major cities but also in small towns across rural areas as well costing between
Rs 15 to 25 per liter10. There are no legal restrictions imposed on buying or selling of acid11. Thus any
one can legally purchase acid over the counter in pharmacies, automobile repair shops; goldsmith
shop, battery repair shops and open air market.
Apart from easy accessibility, using it as weapon is also very much easy than other fire arms.
It appears less conspicuous than a knife or any fire arms. One can still fight off a knife or a stick. But
there is little or no defense against being splashed with acid. A fire arm or a weapon can be traced.
They contain finger prints .With acids; there is little or no chance of tracing the attacker.
Absence of the comprehensive and dedicated laws on acid crime is another key reason behind
this violence. Speedy and inescapable detection and effective punishment is an instrument of public
justice that may help in controlling crime by its deterring effect on potential offenders. As most acid
attackers go unpunished, because of the inadequacy of the existing law, this further encourages not
only to same offender but also to all those who may have same motives and opportunities to commit
the crime repeatedly.
Consequences
Acid attacks rarely kills but always destroys lives. It has a devastating effect on the victims. It
inflicts lifelong suffering on them. Even a small amount of acid melts the skin tissues, often with the
bones underneath exposed or dissolved. Other effects include permanent disfigurement, scars on the
face and body and narrowing of the person’s nostrils, eyelids and ears12. In most cases, vital organs
of the survivors, especially the eyes, are permanently damaged their bones are often fused together
- jawbones sealed tight, chins locked to chests, hands left permanently contorted in the position they
9
Desai Neeya and Patel Vibhuti , Indian Women-Change and Challenges in the International Women Decades,
1977-85, Popular Prkashan Bombay(1985)Nidhi Gupta, Women’s Human Rights and Practice of Dowery in India
: Adopting Global Discourse to Local Demands 48,J.LEGAL PLURALISM103 (2003)
10 The Hindu, Acid Attack victims yet to get assistance, 27.04.2007. see also, Bageshree S.and M.V. Chandrasekhar
The ‘acid test’: will Government regulate sale of deadly chemicals? The Hindu,, February 5,2007
11 There is however no law to regulate acid sales except for the Manufacture, Storage and Import of Hazardous
Chemicals Rules, 1989 (amended in 2000) and this only applies to industrial situations
12 Medecins Du Monde and doctors at Calmette hospital in Phnom Penh ; Living in the Shadows : Acid Attacks in
Cambodia,Supra 3; 226th Report, Law Commission of India, supra 3,
181
held as they tried to deflect the splash13. Their injuries have a long, painful and exhausting recovery.
Deep burns are very difficult to heal and vulnerable to infection and other problems. Victims usually
have to spend weeks or months in hospital, until their wounds begin to heal and the risk of infection
is gone. Most of them will need multiple surgical operations and treatment lasting for years.
Along with the physical suffering, the acid survivors have to deal with mental trauma as
well. Many victims are frustrated, and some of them have suicidal tendencies. They need periodic
counseling by trained psychotherapists to recover from the shock and frustration14.
The fact that acid survivors can never regain their original appearance has a severe impact
on their social lives. No disease or catastrophe can make such a terrible change to a human face like
acid-throwing. It is tough for the victims to accept their new identities. It is even harder for them
to face the reality that people around them are horrified at the sight of their looks and that they are
no longer accepted in society. They are treated as pariahs, and this lack of acceptance makes social
reintegration and marriage more difficult for them. Young victims, meanwhile, have to stop going
to school. Even after they have recovered, most of them cannot continue their studies because of
their unstable physical conditions. They thus cannot develop skills that they could have fostered
otherwise. It is not only the victims, but also their families, who suffer in many ways from acid
attacks. Even the victims’ own families see them as a burden because the cost of taking care of them
is very high.
As stated earlier, the survivors are never cured completely, their lifestyle becomes
different from an ordinary person, and they must follow all of the restrictions prescribed by doctors
carefully to avoid further physical complications. The victims need sophisticated medical facilities
for specialized plastic surgery. They have to undergo several operations, which are very costly. It
is nearly impossible for most victims to pay for the extensive surgery needed to reconstruct the
damaged faces of the victims, which costs lacs of rupees. Moreover, the working capabilities of
acid victims drop significantly. Because of physical problems, such as the loss of their eyesight or
hearing and the sensitivity of their skin to heat and sunlight, the victims can only do very limited
types of jobs. Their income-generating powers decreases and have to depend on their families for
their livelihood. This makes the family poorer and leads to stress and family conflicts.
Acid Throwing And The Law
(I) Punishment For The Offence Of Acid Attacks
No criminal law enactment in India explicitly mention the term ‘acid attack’ and criminal
laws are not typically used to deal with cases of acid attacks. However, some provisions of the IPC
may be applicable to acid attacks, which cover the harms caused by acid attacks under offences that
are already defined in the IPC. They are:
13
14
Section 302 – This section relates to the offence of murder and prescribes punishment for
ID
IBID
182
it15. If acid attacks result in death, perpetrators of the offence can be held guilty of murder under this
section and they will be sentenced to death or life imprisonment. In order to convict the accused for
murder under section 302 of the IPC, it is necessary that the act by which the death is caused is done
with the intention of causing death or with the intention of causing such bodily injury sufficient in the
ordinary course of nature to cause death or with the knowledge of imminently dangerous act which
must in all probability cause death. It should be noted that the burden of proving above necessary
intention or sufficient knowledge lies on the prosecution. The court may convict the accused only
when it is satisfied beyond reasonable doubt that the accused is guilty.
Therefore mere occurrence of death due to injuries inflicted by acid attacks can not make
one guilty of murder16. There must be something more than occurrence of death i.e., there should be
intention of causing death or such bodily injury which are sufficient to cause death or there should be
knowledge of a very high degree of probability of the act causing death17. Thus, undoubtedly, section
302 is an effective provision under the IPC which imposes stringent punishment too, yet it is seldom
used in this context because firstly, the victim doesn’t suffer death though the sufferings are more
horrible than death. Secondly, there is usually lack of concrete evidence to prove the perpetrators’
intention to murder the victim18.
Section 304- This section deals with the offence of culpable homicides not amounting to
murder and its punishment19. It covers the cases of two separate degrees where the death of any person
is caused. Firstly, in cases where death is committed with the requisite intention or knowledge but it
does not amount to murder under section 302 because it falls within one of the exceptions to section
300. While secondly, in cases where the death is committed with the knowledge that death will be a
likely result instead of most probable result.
Therefore, this section may be used to impose criminal liability in those cases of acid attacks
which caused death by inflicting injuries with knowledge of the likelihood of the death but which
are not covered under section 302 due to lack of knowledge of a high degree of probability of the
act causing death. The accused can be sentenced to imprisonment for a term which may extend to
10 years under this section. Even this too is also very difficult to attribute any knowledge to the
Perpetrators of acid attacks the injury inflicted by them was likely to cause death, and so they seldom
15 Section 302- Punishment for murder- Whoever commits murder shall be punished with death, or imprisonment
for life and shall also be liable to fine.
16 A.G.Bhagwat v. U.T. Chandigarh, 1989 CrLJ 214 (P&H)
17 Marepally Venkata Sree Nagesh v. State of A.P. , 2002 CrLJ 3625
18 See Gulab Sahiblal Shaikh v. State of Mahrashtra, 1998 BomCR, ; Barati v. State of U.P,. AIR 1974 SC, Ravinder
Singh v. State of Haryana,AIR 1975 SC 856;Srimanthula Chinna Sathaiah v. state of A.P. 1998(4)ALD 18.
19 Section 304. Punishment for culpable homicide not amounting to murder- Whoever commits culpable homicide
not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done
with the intention of causing death, or of causing such bodily injury as is likely to cause death,
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the
act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.
183
brought to book and punished under the section.
Section 307- It is another important section which may be utilized to prosecute and punish
perpetrator of acid attacks. The section20 deals with attempts to murder and punishes those cases
where execution of death falls short of a complete execution because of the intervening independent
circumstances. For the application of this section it is necessary that the act must be done with
similar intention and knowledge required for murder and must also be capable of causing death21.
It should be noted that the section makes a distinction between an act of the accused and its result.
It is not necessary that the injury actually caused to the victim should be sufficient under ordinary
circumstances to cause the death22. This section applies even if no hurt is caused23.
Thus, the cases of acid attacks in which death doesn’t occur may get registered under
this section and if it is proved that act of acid throwing is done with intention of killing or with
the knowledge of the likelihood of the death the accused, will be punished with sentence of life
imprisonment or with imprisonment up to 10 years under this section.
However, since requisite mens rea is extremely difficult to prove, only stray instances could
be found where the accused has been punished under this section too.
Section 308- This section deals with the offence of attempts to culpable homicides not
amounting to murder and provides punishment of imprisonment of a term which may extend to
7 years. This section is similar to section 307 and punishes those cases where all the element of
culpable homicide not amounting to murder exit except the fact of death. In practice this section too
is rarely used to punish acid throwers because of evidentiary problems.
Section 326- Most of cases relating to acid attacks are governed by this section which deals
with cases of voluntarily causing grievous hurt by means of any corrosive substance like acid and
imposes life imprisonment or up to 10 years of imprisonment for attackers24. For the application
of the said section, it is necessary that injuries inflicted by acid attacks must be caused voluntarily
20
21
22
23
24
Section 307- Attempt to murder-Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused
to any person by such act, the offender shall be liable either to imprisonment for life,or to such punishment as is
hereinbefore mentione
Kulmani Saah v. State of Orissa, 1994 CrLJ, 2245, Ajit Sawant v. State of Karnataka, 1997 (7) SCC110; Devander
v. The State, 1987 (1) Crimes 314.
Veerla Stayanarayan v. State of A.P. 2002(Supp)1 SCC,489.
Ghulam Qadir (1936) 18 Lah. 111
Section 326 Voluntarily causing grievous hurt by dangerous weapons or means-Whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any
heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or
by means of any substance which it is deleterious to the human body inhale, to swallow, or to receive into the blood,
or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
184
and must also fall under the categories of grievous hurt as mentioned in section 320 of the IPC.
While a hurt is constituted by causing bodily pain, disease or infirmity to any person, the grievous
hurt is the hurt of a more serious nature. Section 320 defines “grievous hurt” as emasculation of the
victim’s reproductive and sexual organs, permanent privation of the hearing of either ear, privation
of any member or joint, the destruction or permanent impairing of any member or joint, permanent
disfiguration of the head or face, fracture or dislocation of a bone or a tooth, and any hurt that
endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain,
or unable to follow his ordinary pursuits.
From the above said definition it is clear that any hurt of any nature other than those
mentioned in section 320 will not be grievous hurt and will be treated as simple hurt. So the definition
of the grievous hurt does not account for the specific circumstances of acid attacks. First, it does not
take within its purview the various kind of hurt that is inflicted on important parts of a female’s body,
nor it apply to those acid attacks in which multiple types of grievous hurt occur. Second, it does not
account for social and economical difficulties that acid survivors experience.
Thus, section 326 may be invoked only if it is shown that the grievous hurt has been
caused by acid attacks. Apart from this, the said section is also invoked in those cases of acid attacks
which lead to death without the intention of killing or knowledge that the offence is likely to cause
death25.
Section 324- Since the definition of grievous hurt under section 320 is not broad enough
to cover the various kinds of injuries which are inflicted during acid attacks; many such cases get
registered under the section 324. This section provides punishment for voluntarily causing hurt by
means of any corrosive substance like acid. This section carries a maximum penalty of 3 years
imprisonment. This punishment by no way matches to the gravity of offences like acid attacks.
Surprisingly, there are many instances in which perpetrator of acid attacks has been
convicted under section 325 or section 323 of the IPC26 which are general sections and provide
lighter punishment for voluntarily causing grievous hurt and hurt respectively27. Since causing hurt
or grievous hurt by dangerous weapon or means of any corrosive substance etc. are aggravated forms
of the hurt and accordingly IPC prescribes greater punishment for them under specific sections i.e.,
sections 324 and 326. This sort of liberality for acid attackers by the criminal justice system is totally
non understandable and indigestible.
25
A.G.Bhagwat v. U.T. Chandigarh, 1989 CrLJ 214 (P&H);Kulmani Sahoo v. State of Orissa1,994, CriLJ 2245
(Orissa); Syed Shafique Ahamad v. State of Maharashtra, 2002 CriLJ 403.
26 State (Delhi Administration) v. Mewa Singh, 5 (1969) DLT 506.
27 Section 323- Punishment for voluntarily causing hurt- Whoever, except in the case provided for by section
334,voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend
to one year, or with fine which may extend to one thousand rupees, or with both.
Section 325 Punishment for voluntarily causing grievous hurt Whoever, except in the case provided for by section
335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
185
It is ample clear from above discussion that above said provisions of the IPC are insufficient
and inadequate to deal with the phenomenon of acid attacks. Despite the fact that in most cases the
victim knows the violator, the offenders often escape the law and are rarely brought to justice. The
crime of acid attacks is indeed too complex and needs to be treated strictly and specifically. The law
relating to traditional common law offences, like murder, attempt to murder, grievous hurt, hurt etc.,
can’t do justice in dealing with a specific offence like acid attack. The law in force to punish offences
relating to acid attacks does not take into consideration the magnitude of the crime and its after effects
which affects the victim throughout her life. Both the Law Commission of India and the National
Commission for Women have not only admitted the fact that the criminal laws are inadequate to deal
with acid attacks, but also supported enacting amendments to the IPC and the Indian Evidence Act
to address acid violence28. However, in a PIL filed in April 2010 before the Supreme Court of India,
the Government stated that the existing legislations are sufficient to deal with the offence of acid
attacks29.
(ii)
Compensation To Acid Victims
The concept of compensation and Restitution occupy an important place in the programme
of justice to victim. Restitution refers to the responsibility which the offenders bear to their victims
whereas ‘Compensation’ refers to the financial obligation of governmental agencies to reimburse
suffering citizens. Both are alternative methods of repayment of losses. Indian criminal law system
does not provide for institutionalized payment of compensation to the victim of a crime for any
loss caused to him by the offender. In India there is neither a comprehensive legislation nor a well
designed statutory scheme regarding compensation to victims of crime, either by State or by offender.
There is a total lack of rehabilitative services or services to avoiding secondary victimization and
provide hope in the justice system. The victim had to initiate separate civil suit to recover damages
for the wrong that has been committed to him or her. However, in civil action the injured party
has less chance to succeed in securing damages because of the offender’s insolvent condition and
28
Supra 3 ,The law Commission proposed that a new section 326A be added in the IPC which will read as follows:
Section 326 A. (i) Hurt by acid attack- Whoever burns or maims or disfigures or disables any part or parts of the body
of a person or causes grievous hurt by throwing acid on or administering acid to that person, with the intention of
causing or with the knowledge that he is likely to cause such injury or hurt, shall be punishable with imprisonment
of either description which shall not be less than 10 years but which may extend to life and with fine which may
extend to Rs. 10 Lakhs. Provided that any fine levied under this section shall be given to the person on whom acid
has been thrown or administered.
(ii) Intentionally throwing or administering acid- Whoever throws acid on, or administers acid to, any person with the
intention of causing burns or maiming or disfiguring or disabling or causing grievous hurt to that person shall be
liable to imprisonment of either description for a term not less than 5 years but which may extend to 10 years and
with fine which may extend to Rs. 5 Lakh.
The Law Commission also proposed that in cases of acid attack a presumption be incorporated in the Indian Evidence
Act as Section 114B. The proposed Section 114B of the Indian Evidence Act shall read as under
Section 114 B- Presumption as to acid attack-If a person has thrown acid on, or administered acid to, another person
the court shall presume that such an act has been done with the intention of causing, or with the knowledge that such
an act is likely to cause such hurt or injury as is mentioned in Section 326 A of the Indian Penal Code.
29 Dhananjay Malhotra, No change in law needed to make acid attack a heinous offence : Centre, Times of India, April
15,2010.
186
the opportunity to hide out or transfer personal property. In addition, complicated and expensive
civil process makes compensation and restitution completely ineffective and meaningless and
consequently victim usually makes no effort to recover damages by civil suit.
Though, the Code of Criminal Procedure (Cr.P.C.) contains the provision30 regarding power
of the Court at its descriptions to provide compensation for reparation to victim of an offence
(including acid attack victim), which provide only symbolic support in favour of victims. But it is
inbuilt inadequate with following restrictions and limitations:
(i). Its application depends in the first instance, on conviction of the offender for which he is
charged.
(ii). The order of payment of compensation to victim always rests with the discretion of the Court
which may refuse it, even without mentioning the reason for the same.
(iii). The amount of compensation which may award is flexible enough to make it real and truly
compensation. The amount so awarded, cannot exceed that of the fine so imposed. The Magistrate
power to impose a fine is itself limited. The economic position of the offender which is taken
into account before ordering the compensation is also restricting the amount of compensation.
(iv).
Recovery of compensation will have to wait till the expiry of the period allowed for appeal.
(v). There is no adequate machinery for enforcing payment of compensation. If the offender
defaults in payment of compensation and he lacks economic stamina, the victim may not get any
thing.
(vi). There is no bar on subsequent civil suit for compensation once the question has been dealt
with under criminal proceedings of the same is likely to give rise to multiplicity of suits and
cases.
Apart from it, the Courts in India have rarely invoked their powers to compensate victims
of crime.31 The Apex Courts carried the same impression in Hari Krishan and State of Haryana v.
Sukhbir Singh32 and recommended in advisory tone to all Courts to exercise this power liberally to
30
Section 357 lays down that When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgement, order the whole or any part of the fine recovered
to be applied- (a) in defraying the expenses properly incurred in the prosecution, (b) in the payment to any person
of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court
recoverable by such person in Civil Court; (c) when any person is convicted of any offence for having cause the
death of another person or of having a betted the commission of such an offence, in paying compensation to the
person who are, under Fatal Accident Act, 1855, entitled to recover damages from the person sentenced for the
loss resulting to them from such death; (d) when any person is convicted of any offence which is includes theft,
criminal misappropriation, criminal breach of trust, or cheating, or having dishonestly received or retained, or
having voluntarily assisted in disposing of, stolen property knowing or having reason to believe that same to be
stolen, in compensation any bonafide purchaser of such property for the loss of the same if such property is restored
to the possession of the person entitled thereto
31 Law Commission of India, Forty- first Report 1969 p356.
32 AIR 1988 SC 2127
187
meet the ends of justice in a better way. A plethora of cases relating to acid violence33 reveals that the
Indian judiciary has a long way to go to meet the need of compensation of acid victim.
No doubt, occasionally the tenor of judicial pronouncement shows deeper concern for
compensating the victims of acid attacks. But such casual utterances are no solution. In, State of
Karnataka v. Joseph Rodrigues34, wherein the accused of acid attack was convicted under section
307of the IPC and sentenced to imprisonment for life. A compensation of Rs 2, 00,000 in addition to
the trial court fine of Rs 3, 00,000, was to be paid by the accused to the victim’s parents. The Hon’ble
High Court of Kerala has also directed the State Government to come out with a special package
for women who are victims of acid attacks. This they feel will go a long way in ensuring they are
provided a rehabilitation package that will include free legal aid and employment.
Thus another major area where the existent law is insufficient relates to the payment of
compensation to the victim of acid attacks. The victim has to incur huge medical expenses in an
attempt to salvage whatever she can of her physical appearance. Medical treatment includes plastic
and reconstructive surgeries which are very expensive.
Conclusion
Acid violence is not just an isolated human right violation or offence but is part of a broader
type of injustice and cruelty rooted in the phenomenon of gender violence. Unfortunately our legal
system in vogue exhibits its insensitivity to the plight of acid attack victims. Victims suffer the
trauma of a life devastated. They suffer the trauma of seeking justice, seeking help to meet their
medical expenses, seeking rehabilitation and our legal system has failed to show concerns towards
them. Multiple barriers exist preventing victims from accessing justice. Recently, Sonali Mukherjee,
an acid attack victim from Dhanbad had demanded justice for herself from the Government. She
pleaded for either help to get her justice or permission to end her life35. The incident is a high profile
sample of the lacunae and inadequacy in the Law. There is no scope for rehabilitation for acid
survivors and there is no one to provide support. Due to the absence of any particular law relating to
acid attacks police also use their discretion to decide what section should be registered for the case
and at time this discretion is influenced by gender bias, corruption or wrong assessment.
There is no point denying the fact that acid attacks are living death. From the point of view
of horrific impact, acid attacks would appear to be a worse offence than rape. While a murderer
destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.36
It is to be noted that the crime of acid attack is destruction of both – the body and the soul. In fact,
33
Revinder singh v. State of Haryana, AIR 1975 SC 856; Balu v. State (decided on October 26, 2006 before the
Madras High Court); Devanand v. The State 1987(1)Crimes 314;Ramesh Dey v. State of West Bengal (decided on
may 16, 2007 before the Calcutta High Court); Srimanthula China Sathaiah v. State of A.P., 1998 (4) ALD18;Syed
Shafique Ahmad v. State of Maharashtra, 2002 CriLJ 1403;State (DELHI Adm.) v. Mewa Singh 5 (1969)DLT 506
;State of U.P. v. Smt Aqueela ,1999 CriLJ 2754;Gulab Sheikh v. State of Maharashtra, 1998 Bom C R (Cri)
34 Decided on August 22, 2006 before the Hon’ble High Court of Kerala.
35 India Today,No help from government, acid attack victim plead for death, New Delhi, July 14,2012
36 Tulshidas Kanolkar v. State of Goa, AIR 2004 SC 978.
188
it affects the physical being of the victim more than rape does, as it usually results in erosion of the
skin, dysfunction of vital organs and loss of life or limb. Also, acid attacks scar the victim’s psyche
more violently than rape. While the effects of rape can be hidden by the victim from the world at
large, the same cannot be said for acid attacks. Acid leaves blemishes which can neither be removed
nor concealed, and the victim thus has to carry the social stigma for the rest of her days. Not very
different in tone was the Rajasthan High Court when a two judge Bench likened an acid attack victim
to rape victim and observed37:
It is possible that a victim of rape could get out of trauma by counseling and other
measures but a victim of acid assault who has received injuries on her face, would wake
up each morning with signs of assault on her body. The trauma would be revisited every
time, all her life.
Prevention and total elimination of such an atrocity is one of the main responsibilities which the
society has to undertake relentlessly till this crime is totally eradicated. Surprisingly, the society is
most reluctant to rehabilitate the woman victim of acid assault; for no fault of hers. The social apathy
towards the agonized fate of woman is indigestible. In fact, this seems to be the sole cause for failure
to eradicate the social evil through any law. The efforts must be made to restore victims’ confidence
and bring her back into the mainstream of life. Only with understanding and efforts, her scars can be
healed; otherwise, they would be deepened, hurting even more.
The solutions cannot be found by wishing away the problem. A few suggestions, however,
are being offered here to address the problem of acid attacks and to ameliorate the plight of acid
survivors.
1. Society should send a strong message by recognizing acid attack as a specific criminal
offence together with by imposing severe punishment on perpetrator. As suggested by the Law
Commission of India it is a good proposal that a new section be added to the IPC to deal acid
attacks specifically.
2. The government should simplify and streamline the rehabilitation measures for ensuring that
victim get best treatment at the government cost apart from other relief such as employment
and compensation etc. The suggestion of the NCW for setting up a board specifically for acid
victims could also be examined for the purpose.
3. The investigations into the said crime should hold by expert .And the perpetrators of such a
crime should be tried in special and fast track courts with special prosecutor.
4. Prevention is the only way to stop these attacks; therefore, there should a comprehensive and
multipurpose law for regulating sales of acid. Acid should be made a schedule banned chemical
not to be available over the counter.
5. There must be a wide spread awareness campaign in police and primary health canters
37
Decided on October 15, 2011 before the Rajasthan High Court.
189
regarding first aid to be administered in case of acid attacks. And medical aid should be provided
as early as possible as it would prevent further damage to the body part.
Apart from it we have to understand that law is not merely the solution to all problems
existing in our society as well as law is not always the best tool to change entrenched moral values
and social attitudes. In order to check such crimes against women fundamental changes in the social
system are required. For improvement of situation, there seems to be a great need for attitudinal
change towards looking at women.
*****
190
Analysis Of Dna Fingerprinting In Criminal Proceedings:
An Overview
Amitabh Singh1* Salma Begum Laskar2**.
Introduction
The increasing demand for admissibility of scientific evidence is a growing awareness
and there has been much discussion on the use of it in the courtroom. The current legal methods
of reviewing and weighing such evidence are insufficient and should be re-considered. Deoxy
ribonucleic acid, or DNA, which is the basic molecule of life, is a chemical code of specifying
function, appearance and pedigree and is unique for all individual except identical twins. DNA is
present in the chromosome of the cell, so they are the carrier of genetic information from generation
to generation. DNA plays an important role in all bio synthetic and hereditary function of all living
organism. DNA fingerprinting also known as DNA profiling, DNA testing or genetic fingerprinting
is a technique used to identify person by analyzing DNA from their tissue. DNA testing can be used
to test the paternity of child as an evidence because individual’s DNA is combination of both parent’s
where half DNA coming from mother and half from father. The ability to examine DNA found at a
crime scene is very useful forensic tool. In most of the cells of human body DNA is found including
white blood cells,semens, hair roots and body tissue. In body fluids such as saliva and perspiration,
traces of DNA can be detected. To examine the relatedness and common ancestry between individual
and also to verify the identity of buried remaining, Mitochondrial DNA, can be extracted from hair
and bone samples, which follows the maternal line of individual. The properties of DNA are being
utilized by forensic science in different ways. It is not possible to test the whole of individual’s
DNA. By the use of DNA fingerprinting the increasing complexity and persuasive force of scientific
evidence is exemplified.
In every person, 99.9% of human DNA sequence is same and also is enough from
distinguishing one individual from another. Sir Alec Jeffrey in 1984 first reported DNA profiling
technique in England at University of Leicester, which is now the basis of several national DNA
database. In 1987, the genetic fingerprinting of Jeffrey was made commercially available by Imperial
Chemical Industry (ICI), a chemical company, which started blood testing centre in England.
Techniques And Procedures Involved In Dna Identification:
Every individual is completely different from one another so question of same fingerprint
arises. So each person has unique set of fingerprint as because they don’t share same genetic codes.
1
2
*
Asst. Professor, Dept. of Law, Assam University, Silchar.
LL.M Student, 1st Sem, Dept of Law, Assam University, Silchar
**
191
Variation exists only in identical twins when undergoing the examination of DNAof them. All the
genetic information present within the living body is contained in DNA. Human cells contain 23
pairs of chromosomes in the nucleus, where one-half of each pair came from each parent. In the
polymorphic genes, the DNA information which is unique in every individual is stored and is located
in locus or polymorphic site. The possibility of identification of DNA of individual is contained in
human sample tissue by isolating and identifying the segments of DNA. In different materials like
blood, saliva, hair, urine, semen, body organ, teeth, fasces etc DNA is found in case of criminal
investigation and prosecution.
The most often used techniques in forensic DNA analysis are known as Restriction Fragment
Length Polymorphism (RFLP) and the other is Polymerase Chain Reaction (PCR), where RFLP is
commonly used. RFLP is the primary step which extracts DNA by way of solvent the evidentiary
tissue sample and then by use of restriction enzyme, those extracted DNA are cut into smaller small
segments, which differ in every individual. PolymeraseChain Reaction(PCR) permits unlimited
amplification of minute DNA traces, as found in small samples of dry bone or skin. An inevitable
consequence of the massive amplification potential is its sensitivity to contamination, particularly
if the same forensic laboratory and technicians are handling samples from both the suspect and
the crime scene.3 But the major drawback in using RFLP analysis is that in prolonged sunlight and
extensive use DNA samples cannot be used. Also in PCR amplification analysis, the disadvantage is
that it is susceptible of contamination.
Admissibilty Of Dna Technology
In our legal fraternity, DNA has played tremendously increasing role since last 15 years.
In 1988, in the case of Florida v. Tommy Lee Andrews, the DNA fingerprint was first admitted as
evidence in court. The Federal Bureau of Investigation (FBI) began to accept casework from state
forensic lab. in January, 1989. After this, in United States hundreds of cases has been used of DNA
fingerprinting and has formally allowed about two-thirds of the states in at least one jurisdiction. DNA
fingerprinting, a new technology has been well-established for admissibility of scientific evidence
in every courtroom. In 1990, the US Congress Office of Technology Assessment (OTA) examined
DNA typing methods and reported that these were valid and reliable if performed properly.4
In People v. Castro5, the New York Supreme Court, in the most critical assessment of DNA
analysis performed to that date, developed a so-called three prong test for DNA evidence: (1) is there
a generally accepted scientific theory arguing that DNA sequence differ between individuals and that
difference can be tested, (2) is there a reliable technology that can be performed to detect these DNA
differences, (3) was that DNA technology applied correctly in this particular case. Following the
application of the three prong test for the admissibility of DNA evidence with the Castro evidence,
the court concluded that it failed prong three, and the testing was not performed correctly in this case.
3
4
5
R.C. Lewontin, “ The Use of DNA Profiles in Forensic Context” (1994)9 Statistical Science 259.
U.S.Office of Technology Assessment, Genetic Witness : Forensic Uses of DNA Tests (Washington, D.C., July,
1990)
545 N.Y.S. 2d985 Sup Ct. 1989
192
Under the prong three, a scientist may have no trouble accepting the general proposition that DNA
typing can be done reliably, yet still have doubts about the reliability of the test being performed by a
particular laboratory. The defense asserted that the testing laboratory failed in several major respects
to use the generally accepted scientific techniques and experiment for obtaining reliable results,
within a reasonable degree scientific certainty. Following this case, it was determined that some sort
of “standard” needed to be in place for DNA testing, so the FBI created the now famous “Technical
Working Group on DNA Analysis Methods” to establish universal procedure for testing DNA.
In 1990, the National Academy of Science of the USA initiated a study by the National
Research Council (NRC) of DNA typing methods, and its report, issued in April 1992, recommended,
among other things:
•
•
•
•
That current DNA typing procedures are fundamentally sound;
That each laboratory should have a detailed quality assurance program in place;
That laboratories have proper accreditation; and
That a national DNA profile data bank be established, especially of convicted sex
offenders and of unidentified samples from crime scenes.
The interpretation of the data sometimes requires expertise in population genetics.
Fragments from two people may be same or similar, especially within a community which
has interbred extensively. Such circumstances increases the chances of two profiles being
similar, thus rendering the probability that the DNA profile could originate otherwise than
with the accused.6
Comparative Analysis Of Dna Evidence In Criminal Case:
In some countries, the admissibility of DNA evidence is much broader than in others. Even
the biologist including scientist are accepted as expert witness in civil and criminal proceedings.
The US Supreme Court in Daubert v. Merrell DowPharmaceuticals7, has reasoned its criteria
for deciding whether expert evidence shall be admissible. Without abandoning the old ‘common
knowledge and experience rule’, the courts in England have opened the door to the scientific expert
witnesses. Careful examination of the relevant case law in Australia, Canada and India shows that in
a number of recent cases, the courts in these countries have followed a more liberal approach to the
interpretation of the common knowledge rule.8
6
7
8
R.C Lewontin and Daniel L. Hartl,” Population Genetics in Forensic DNA Typing “ (1991) Science 1745; John J.
Walsh, “ The Population Genetics of Forensic DNA Typing : Could it have been Someone Else?” (1992) 34 Crim
LQ 469.
509 US 579 (1993).
I. Freckelton and H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy 160 (Sydney : Lawbook Co.,
2002)
193
England
England has become world leader in discovering the innovative ways to use DNA, since
the establishment of the National DNA Database (NDNAD) in 1995, to identify the suspect’s and
to protect the innocent and to convict the guilty. Recently, the English Law Commission thoroughly
examined the admissibility of expert evidence in criminal proceedings in England and Wales.9
The first person convicted of murder with the use of DNA was Colin Pitchfork. Two persons
were killed and sexually assaulted in 1983 and 1986 were Lynda Mann and Dawn Ashworth. From
both victims semens samples were taken. The case did not go to trial due to his confession; he is
usually credited with being the first DNA base murder conviction. Collin received a life prison
sentence for both the murders in 1988.10
In combined appeals of R. v. Reed and Reed and R. v. Garmson, 11 the Court of Appeal
considered the use of LCN DNA analysis as an evidentiary tool which was challenged in these
appeals. In two different cases, the appellants appealed against their convictions to the Court of
Appeal. The Reed brothers had been convicted of murder and the forensic scientist had used LCN
testing on two pieces of plastic fragments found at the murder scene. Similarly, in Gramson’s trial for
kidnapping, rape and sexual assault, LCN testing was used in respect of DNA found on four items.
Lord Justice Thomas held, in dismissing the appeals, that LCN DNA could be used to obtain profiles
capable of reliable interpretation if the quantity of template DNA was above a minimum stochastic
threshold of between 100 and 200 picograms. In cases within the range of 100 to 200 picograms,
evidence might be necessary as to whether in a particular case a reliable interpretation could be
made.
America
Generally for analysis of DNA identification, the scientific evidence must satisfy one
of the two tests of admissibility to give effect to a particular jurisdiction in USA. One, the socalled Fyre test in case of Fyre v. United States12, pronounced by the U.S Circuit Court for the
Columbia district, which is used by majority of jurisdiction. Under the so-called Fyre test,
general acceptance should have gained by technique before admitted in court in scientific
community. The next, used in majority of state jurisdiction, follows the basic relevancy
standard of federal rule of evidence and to gain admissibility, the scientific evidence should
have some relevance to the issue of the case, for outweighing the probative value.
In the National Research Council’s Report 131996 on DNA evidence, the state of the
profiling technology and the methods for the estimating frequencies and related statistics
have progressed to the point where the admissibility of properly collected and analysed
9
10
11
12
13
Law Commission Consultation Paper No. 109 : The Admissibility of Expert Evidence in Criminal Proceedings in
England and Wales: A New Approach to the Determination of Evidentiary Reliability (2009).
[2009] EWCA Crim 963.
[2009] EWCA Crim 2698.
293 F. 1013, 1014 (D.C. Cir 1923).
National Research Council, Nnational Academy of Science , the Evaluation of Forensic DNA Evidence
194
DNA data should not be in doubt.
In State v. Peters14, a case of specifically DNA evidence, the Wisconsin Court of Appeal
rejected the argument made by the defendant on appeal that DNA evidence should not have been
admitted because the trial court had failed to make a determination as to the reliability of the evidence.
State v. Woodall15and Spencer v. Commonwealth16, are the two cases involved in DNA
testing. In Woodall, the West Virginia Supreme Court was the first state High Court to rule on the
admissibility of DNA evidence. The court accepted DNA testing by the defendant, but inconclusive
result failed to exculpate Woodall. The court upheld the defendant’s conviction for rape, kidnapping
and robbery of two women. In another case,the Virginia Supreme Court upheld the murder and rape
conviction of Spencer who had been convicted on the basis of DNA testing that matched his DNA
with that of semen found in several victims.
Australia
In Australia, there are several prominent cases on DNA testing. In R. v.Tran,17the Crown
sought to lead evidence of DNA profiling to connect the accused with the rape and murder of the
victims. Vaginal swabs and a bloodstain were taken from the deceased and bloodstain also taken
from her boyfriend and the accused and sent to Cellmark Diagnostic laboratory (a UK Company)
for analysis. What is significant about Tran is, in Freckelton’s view, “the telling evidence from the
defense scientist which persuaded his honour of the unreliable aspect of the DNA testing in this case.
In R. v. Percerep18, the Victorian Court of Criminal Appeal also considered the matter. In an
appeal against conviction of armed robbery, the appellant challenged admission of DNA profiling
evidence. Prosecution witnesses had admitted upon a voir dire that opinions contrary to their own
existed in the scientific community, although they were resolute as to the correctness of their own
views. Counsel had persuaded the trial judge to exclude the evidence on the basis of it being so
imprecise as to lack probative value. Neither of these arguments was accepted by the appeal court as
sufficient to warrant exclusion of the evidence.
Two recent New South Wales cases, R. v. Pantoja 19 and R.v.Milat20, have added to
Australian case law on DNA evidence. The ruling in Pantoja emphasizes the essentials points that
DNA evidence merely establishes that the suspect and the offender may be the same person, not
that they are the same person. In this particular case, two expert witnesses, using a combination of
RFLP analysis and blood substance testing, declared a ‘match’ between the offender and the suspect,
14
15
16
17
18
19
20
192 Wis. 674 , 534 N.W. 2d 867 (1995).
385 S.E 2d 253 (W. Va. 1989).
384 S.E 2d 775 (1989).
(1990) 50A Crim R 233.
(1993) 2 VR 109.
(1996) 88 A Crim R 554.
(1996) 87 A Crim R 446.
195
whereas a third expert, using PCR analysis positively excluded the suspect. The appeal court ruled
that whatever evidence of a match is found from other blood testing, a single positive exclusion is
sufficient to eliminate a suspect. Accordingly, the conviction was quashed a new trial was ordered.
Pantoja provides a new illustration of the caution necessary in interpreting the astronomical odds
arising from DNA evidence.
Canada
The first known use of DNA evidence in a Canadian case was R.v.Parent21, where PCR
based evidence was obtained by Crown through a private laboratory. It excluded the accused and
was entered with consent at trial. The first case in Canada in which DNA evidence was entered to
implicate an accused was in the sexual assault trial of R. v. McNally22. This was the test case for the
RCMP DNA laboratory, as they had not yet opened for routine case work analysis. There, the judge
dismissed a defense application to enter into a voir dire to determine their admissibility of the DNA
evidence concluding that DNA should not be treated any different from other expert evidence and
that it was for the jury to assess the weight to be given to it. The accused pleaded guilty after the DNA
evidence was heard.
In R. v. Rogers23, the Canadian Supreme Court upheld a Criminal Code provision and the
1998 DNA identification Act, allowing for retroactive DNA sampling of prisoner without notice. The
court found that these offenders’ identity have become a matter of state interest and they have lost
any reasonable expectation of privacy in their identifying information derived from DNA sampling
in the same way as they have lost any expectation of privacy in their fingerprints, photographs or
other identifying measures.
India
It has become increasingly easy to store, search and analyze large amount of data, and this
in itself has promoted an increase in the amount of DNA information with the improvement in
computer technology. In criminal justice system, the use of DNA testing for matters of identification
is becoming more widespread. National DNA database is becoming tremendously important. Under
the Constitution of India, Article 51 A(h) states that, it shall be the Fundamental duty of every citizen
of India, to develop the scientific temper, humanism and spirit of enquiry and reform. Also Article 51
A (j) states that it shall be the Fundamental duty of every citizen of India, to strive towards excellence
in all spheres of individual and collective activity so that the nation constantly rises to higher levels
of endeavour and achievements. Section 53 and 54 of the Code of Criminal Procedure, 1973 provide
for DNA test and are used for identification of DNA in criminal investigation. The Cr.P.C. was
amended to add a new section by the Amendment Act of 2005, which provides the examination of
a person accused of rape by a medical practitioner. New explanations were included like sweat, hair
sample, swabs, fingernails, blood, blood stains, semen, sputum by using modern technique which
is necessary in case of sexual offences. The admissibility of DNA evidence has been given much
21
22
23
(1989) 46 CCC (3d) 414 (Alta. O.B)
(1989) O.J. No. 2630 (Ont. Gen. Div.)
(2006) 1 SCR 554.
196
emphasize under Indian Evidence Act, 1872 under Section 45 which deals with opinion of expert.
It states, When the court has to form an opinion upon a point of foreign law, or science or art, or as
to identity of handwriting (or finger impression), the opinion upon that point of persons specially
skilled in such foreign law, or science or art (or in question as to the identity of handwriting or finger
impressions) are relevant facts.
DNA testing has become an established part of criminal justice system n its admissibility in
the court room has become a routine. India has adopted an adversarial system of justice administration.
The Supreme court in Madan Gopal Kakkad v. Naval Dubey v.24, a medical witness called in as
an expert and the evidence given by medical officer is really an advisory character based on the
symptoms found on examination. The expert witness is expected to put before the court all materials
inclusive of the data which induced him to come to the conclusion and enlighten the court on the
technical aspect of the case by explaining the terms of the science so that though the court although
not an expert, may from its own judgment on those material after giving due regard to the expert’s
opinion because once the expert’s opinion is accepted it is not the opinion of the medical officer but
that of the court.
In Gautam Kundu v. State of West Bengal25, in this case the father disputed the paternity
and demanded blood grouping test to determine the parentage for the purpose of deciding whether
a child is entitled to get maintenance under Section 125 of Cr.P.C from him. The Hon’ble Supreme
Court held that the purpose of the application was nothing more than to avoid maintenance without
making out any ground, whatever to have recourses to the test, the application for blood test couldn’t
be accepted. It was held no person can be compelled to give sample of blood for analyzing against
his/her will and no adverse inference can be drawn against him/her for such refusal.
In Patangi Balarama Venkata Ganesh v. State of A.P., the Andhra Pradesh High Court held
that the opinion of DNA expert is admissible in evidence as it is a perfect science. The DNA expert
in this case deposed “ if the DNA fingerprint of a person matches with that of a sample, it means that
the sample has come from that person only. The probability of the two people except identical twins
having the same DNA fingerprint is around 1 in 30 billion world population.”
In Raghuvir Desai v. State26, the Bombay High Court held that DNA testing is clinching piece
of evidence- DNA testing can make a virtually positive identification when two samples matches. It
exonerates innocent and helps to convict the guilty.
In Selvi v. State of Karnataka27, the Supreme Court held that the taking and retention of
DNA samples which are in the nature of physical evidence does not face constitutional hurdles
in the Indian context. However, if the DNA profiling technique is further developed and used for
testimonial purposes, then such uses in future could face challenge in the judicial domain. Hence,
24
25
26
27
(1992) 3 SCC 204 at 221-22.
(1993) 3 SCC 418 at 428.
2007 Cri LJ 829.
AIR 2010 SC 1974.
197
the use of DNA for the purpose of comparison and identification does not amount to testimonial act
for the purpose of Article 20(3).
In Sharda v. Dharampal28, the Supreme Court stated that right to privacy in terms of Article
21 of the Constitution is not an absolute right. Passing of testing order by the court would not be in
violation of the right to personal liberty under Article 21 of the Constitution. However, in a matter
where paternity of the child is in issue, the use of DNA test is to be resorted to only if such test is
eminently needed.
In Geeta Saha v. NCT of Delhi29 , a Division Bench of Delhi High Court had ordered that a
DNA test be conducted on a foetus of a rape victim. The court distinguish this case from Gautam
Kundu’s case, wherein it was held that wife cannot be forced to give blood sample and no adverse
interference can be drawn against her for this refusal.
However, of late, it is generally held that unless there is some special circumstances, all
relevant evidence is admissible.
Dna Testing And Human Rights
It is necessary to obtain certain types of body material in order to use DNA. The unquestioning
adoption of a conservative crime control agenda in the administration of criminal justice system has
increased number of question and concerns about the use of DNA. International human rights law
provides that everyone has a right to a fair and public hearing by the independent and impartial
hearing. The most crucial question in forensic use of DNA technology is that of forced testing.
In R. (on the application of S.) v. Chief Constable of SouthYorkshire30, the contentious issue
before the Court of Appeal (in the U.K) arose in respect of the retention of fingerprints and DNA
samples taken from person who had been suspected of having committed offences in the past but
were not convicted for them. It was argued that this policy violated Articles 8 and 14 of the ECHR.
Article 8 deals with the ‘right to respect for private and family life’ while Article 14 lay down the
scope of the ‘prohibition against discrimination’. Lord Woolf CJ who delivered the judgment of the
court, had this to say:
So far as the prevention and detection of crime is concerned, it is obvious the larger the
databank of fingerprints and DNA samples available to the police, the greater the value of the
databank will be in preventing crime and detecting those responsible for crime. There can be no
doubt that if every member of the public was required to provide fingerprint and a DNA sample
this would make a dramatic contribution to the prevention and detection of crime. To take but one
example, the great majority of rapist who are not known already to their victim would beable to be
identified.
28
29
30
AIR 2003 SC 3450.
1999 (1) JCC 101.
(2003) 1 All ER 148 at 155 (CA).
198
In U.K a distinction is made between intimate and other body samples. A non-intimate
sample can, under appropriate circumstances, be taken without consent. An accused cannot be forced
to donate an intimate body sample such as a sample of body fluid. In England and Wales, if the
suspect, without good cause, refuses to comply with a request in proper form to give an intimate
body sample, the court can draw such inferences as it sees proper from the refusal. This means that
refusal to supply a sample is capable of amounting to evidence of guilt. Failure to supply samples
when an appropriate request is made may also be used to corroborate other evidence. The safeguard
against are : that the suspect may only be asked to provide an intimate body sample if there are
reasonable grounds for suspecting that he has been involved in a serious offence. In India, the DNA
Profiling Bill,2007,which is pending in Parliament, is expected to be considered and become a law
sometime in future. If this were to happen, all convicted criminals across the country will have to
undergo mandatory DNA test
Conclusion
In the field of forensic science and life science, the use of DNA technology has gained much
acceptance to exonerate the innocent and helps to convict the guilt. During the past twenty years,
DNA technology has been increasingly used by police, prosecutors, defense counsel, and courts
throughout the world for administering justice. It has become commercially valuable property and
its admissibility has become an established part in courtroom now-a-days. The DNA technology has
become the most significant advancement in criminal investigation to help the convict criminals or
eliminate suspects since the advent of fingerprint identification. The development of forensic DNA
testing has expanded the types of useful biological evidence. Despite so many hurdles, DNA testing
is a unique technique to exonerate the innocent and helps to convict the guilty. The use of DNA
testing for matters of identification is becoming more widespread in the criminal justice system.
In criminal and paternity cases, the DNA profiles have revolutionized criminal investigation and
become powerful tools in the identification of individuals.
*****
199
“International Humanitarian Law : Is it sufficient for protecting the
environment during armed conflicts?”**
Y. Premananda Singh1*
Abstract
The evolution of humankind is largely dependent on the quality of the
environment and the resources it provides, and the natural environment plays a vital
role in ensuring the survival of present and future generations. The earth and its
environment are potentially under threat because of numerous human-induced factors.
Among those human – induced factors, the most important that drastically challenges
the very existence of the earth and its natural environment is war/armed conflicts. In
war protection of natural environment is considered minor important and environment
is directly targeted as whether a collateral damage or military object. This article will
find out present state of IHL provisions for protection of natural environment during
armed conflicts and also analyze the gaps in IHL and finally outline inventory of
existing international law concerning environment. Finally, the article will highlight
some suggestion to strengthen the present state of IHL regime on the issue to protect
environment effectively during armed conflicts. This article deals only contemporary
armed conflict situations and its effect to the environment.
Introduction
The important of the environment is universally acknowledged. As the International Court
of Justice (ICJ) proclaimed in 1996, in its Advisory Opinion on the Legality of the threat or Use of
Nuclear Weapons:
“the environment is not an abstraction but represents the living space, the quality of life
and the very health of human beings, including generations unborn”.
The Court further observed that “States must take environmental considerations into account
when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.
Respect for the environment is one of the elements that go to assessing whether an action is in
conformity with the principles of necessity and proportionality.”
Still what happened to Hiroshima and Nagasaki during Second World War, are haunting in
our mind and this article will not go to that extent and it will confine to the contemporary armed
conflict scenario.
1
It is a fact that when a conflict or crisis hits, the immediate priority is to save lives and
Assistant Professor, Mizoram Law College, Aizawl.
200
minimize human suffering. i.e. immediate/short–term, or human–centered needs. Environmental
concerns are relegated to secondary importance. The fact is that wreak devastating harm on the
environment, biodiversity, and the natural resources upon which people depend – impacts that are
suffered long after hostilities end. A degraded environment puts people’s future livelihood security at
risk, setting the stage for further political instability and conflict. The relationship between conflicts
and their impacts on the environment depends to a large extent on the type, intensity, and duration of
conflicts.
It is pertinent to remind what the Rio Declaration say on this crucial issue: “Warfare is
inherently destructive of sustainable development. States shall therefore respect international law
providing protection for the environment in times of armed conflict and co-operation in its further
development, as necessary.”2
Impacts and consequences
The main impacts of armed conflict3 on the environment occur through destruction of
infrastructure, weapon and chemical contamination, health, poisoning of soils and fields, destruction
of crops and forest, adverse effects on human health, in extreme habitat destruction, deforestation and
loss of wildlife, over-exploitation and degradation of natural resources, and pollution. Conservation
activities can suffer severe consequences in times of armed conflict and when the situation grows
too unstable, conservation activities may have to stop altogether. Some illustrative case study be
reproduced as under:
• Still we remember the massive use of herbicides such as agent orange during the
Vietnam War resulted in the destruction of more than two million acres, or 14% of
South Vietnam’s forest. The armed conflict also caused killing injury individual animals
by land mines as happened to elephants (Loxodonta africana) in Mozambique. In the
course of the Iran-Iraq War, hundreds of oil tankers were attacked by both sides in the
Persian Gulf. As a result, in 1984 alone more than 2 million tons of oil were spilled into
the sea and the resultant oil spill devasted marine life.
• In Rwanda in 1991, the Rwandan army cut a swath 50 to 100 meters wide through
the bamboo forest connecting the Virunga Volcanoes in order to reduce the possibility
of ambush along a key trail. Two-thirds of the original area of Akagera National Park
was removed from protected status, and numerous refugees and their livestock were
resettled there. The result was the virtual local extinction of some species of ungulates,
including the roan antelope (Hippotragus equines) and the eland (Taurotragus oryx).
Moreover, in northwestern Rwanda, the Gishwati Forest Reserve was divided up to
provide land to returning refugees and, simultaneously, was exploited as pastureland by
2
Principle 24, the Rio Declaration on the Environment and Development, 1992
3 Armed Conflict means a dispute involving the use of armed force between two or more parties. In Tadic case,
ICTY defines armed conflict as “an armed conflict exists whenever there is resort to armed force between States or
protected armed violence between governmental authorities and organized groups or between such groups within a
State”. IHL distinguishes between international and non-international armed conflicts
•
•
•
•
•
•
•
•
•
4
5
201
absentee ranchers.
Large –scale extraction has been documented in the war economies of Liberia and Sierra
Leone, Angola, and DRC
In a side effect of war in Sudan, wildlife in DRC’s Garamba National Park, just across
the border, was heavily exploited by marauding poachers who killed park animals,
primarily for their meat. Patrol monitoring and maps showed the poaching moved
steadily south through the park, killing large mammals – initially buffalo (Syncerus
caffer), later elephants – from 1991 onward. More than 70% of the annual incidents
involved Sudan People’s Liberation Army (SPLA) “deserters” based on the Sudan side
of the border.
When the first war in DRC in 1996-97 led to the disarming of park guards in Garamba,
the poaching escalated for a short time. In that brief period, the elephant population was
reduced by half, the buffalo by two-thirds, and the hippo (Hippopotamus amphibious)
by three-quarters.
Pollution of rivers and lakes also occurs when human bodies are deposited in them and
decompose, as occurred during the Rwanda genocide
During the 1980s Iraq-Iran war, Iraqi bombers targeted Iranian oil installations in the
Nowruz offshore field, sending enough smoke into the atmosphere to partially block out
the sun for seven days and enough oil into the Red Sea to create a slick of 12,000 square
miles, with catastrophic consequences for wildlife, including endangered species in that
region.
During the Gulf War, Iraq maliciously released large quantities of oil into the Persian
Gulf by opening the valves of oil terminals, causing “the largest oil spill over”. Above
all, in February 1991, it set on fire more than 600 Kuwaiti oil wells (damaging numerous
others), casting a huge smoke plume over a huge area. The smoke had serious crossborder effects regionally (although not globally, as initially feared), and the heavy
atmospheric pollution in Kuwait had adverse effects for a long time. The oil wells
continued to blaze for months, and the last fire was extinguished only in Nov. 1991.4
The USA –led NATO bombing in Kosovo in 1999 (particularly at industrial complexes in
Pancevo and around Novi Sad in Serbia) about 73,000 tons of crude oil and oil products
are reported or leaked into wastewater collection canals or into the ground. The Israeli
actions in Lebanon and Gaza also produced the same counterproductive consequences
to the environment.
used of depleted uranium weapon in 1991 Gulf War drastically affects on health and the
environment. Exposed to this substance face an increase risk of lung cancer and kidney
failure
In South-east Asia, the problem of weapon contamination continues to have an impact
on people more than 30 years after the end of the conflict.5
A. Roberts, “Environmental Issues in International Armed Conflict: The Experience of the 1991 Gulf War”, in:
Grunawalt, et al. (eds), Protection of the Environment during Armed Conflicts, International Law Studies 69 (1996),
222 et seq., at p.247
For detail see “Weapon Contamination”, ICRC, Geneva, January 2010
202
Vicious circle of conflict, environment degradation, and poverty
Although conflicts may start for other reasons, there is a risk that resource depletion and
environmental degradation can drag a region into a vicious circle : poverty, further political instability,
more armed conflict, greater environmental degradation, and even greater poverty.
Diagram: Homer- Dixon (1994)6
II
International Humanitarian Law (IHL)7 provisions that are relevant for environmental
protection during armed conflict constitute a body of treaty and customary law with significant gaps
and deficiencies.
The International Legal Instruments
In international legal instruments this article will discuss treaties which are directly dealing
to the protection of the environment during armed conflicts/war.
The ENMOD Convention
The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques, 1976 was adopted by the UN General Assembly in 1976 and opened for
signature in 1977 and came into force on Oct. 1978 and 74 states ratified and 16 signed but not
ratified till date.It is the only legal instrument to ban the use of the environment as weapon of war
i.e. so called geophysical war. It also helps to restrict military programmes aimed at climate control,
6
7
“Introduction: armed conflict and the environment” available at http;//www.worldwildlife.org
International Humanitarian Law (IHL) is the body of international law that seeks, for humanitarian reasons,
to regulate war/armed conflict. IHL mitigates effects of war by protecting persons who are not or are no longer
participating in hostilities, and restricting the means and methods of warfare. The principal instruments of IHL are
the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. (also known as the law of war or
the law of armed conflict)
203
such as the HAARP project.8
By virtue of Article I of the Convention State Parties are under obligation that not to engage
in military or any other hostile use of environmental modification techniques having widespread,
long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.
The term environmental modification techniques (EMT) is defined in Article II - refers to any
technique for changing - through the deliberate manipulation of natural processes – the dynamics,
composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere,
or of outer space. An Understanding relating to Article II is attached to the Convention, listing on
an illustrative basis the following phenomena that could be caused by environmental modification
techniques:
“earthquakes; tsunamis; an upset in the ecological balance of a region; changes
in weather patterns (clouds, precipitation, cyclones of varies types and tornadic
storms); changes in climate patterns; changes in ocean currents; changes in the
state of the ozone layer; and changes in the state of the ionosphere.”
It means in conformity with the ENMOD Convention, not every use of an EMT is forbidden.
The combined effect of Articles I and II is that several conditions have to be met:
1.
2.
3.
4.
5.
6.
Only “military or other hostile” use of an EMT is forbidden9;
Manipulation of natural processes;
Deliberate/intentional;10
Widespread, long-lasting or severe effects11;
Must cause destruction, damage or injury;12
The destruction, damage or injury must be inflicted on another state party to the ENMOD
Convention.
The destruction, damage or injury does not come within the ambit of the ENMOD Convention
if it affects solely –
a. The territory of the acting state13 ;
8
HAARP (High Frequency Active Auroral Research Program) is an American programme dating from the 1990s
financed by the Navy, the Air Force and the Defence Department to undertake research into the atmosphere for
military purposes.
9
Article III(1) of the ENMOD Convention – peaceful purposes no prohibited. Military and hostile do not necessarily
overlap; non-military and non-hostile may also be not prohibited.
Mere collateral damage resulting from an attack against a military objective is not included – consequently, a
bombing of a chemicals factory leading to toxic air pollution would not count under the ENMOD Convention – As
the last part of Article III para. 1 clarifies, the ENMOD Convention does not necessarily legitimize such activities
(which may be illicit on other international legal grounds), but they do not come within the framework of its
prohibition.
lower-level manipulation of natural processes for hostile purposes are not included under prohibition
An EMT employed for the dispersal of fog above critical enemy areas may be harmless as such
when the victim is the state’s own population no application of this provisions
10
11
12
13
204
b. the territory of a state not party to the ENMOD Convention; and
c. Areas outside the jurisdiction of all states, like the high seas. Unless, of course, the
destructive activities on the high seas affect the shipping of a state party to the ENMOD
Convention
Exceptionally, environmental modifications can be spawned by conventional means and
methods of warfare. A hypothetical example would be the systematic destruction by fire of the rain
forests of the Amazon River Basin, thereby inducing a global climatic change.14 The Convention
only by unconventional weapons do not even reflect existing capabilities and really the Convention
is a future-oriented and realm of science fiction.15
Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)
Articles 35(3), 55, 56 of the Protocol I directly deals with protection of environment during
armed conflict. Article 35(3) in general terms prohibit “to employ methods or means of warfare
which are intended, or may be expected, to cause widespread, long term and severe damage to the
natural environment.”16
Article 55 reiterated what was stated in previous article with objective of protection of
civilian object/ the health or survival of the population during armed conflict. It also prohibits attacks
against the natural environment by way of reprisals. Article 56 indirectly protect the environment by
protecting works and installations containing dangerous forces.
In the final analysis these Articles set a very high threshold in the form of ‘long-term,
widespread and severe’ damage to the environment. It means the legal situation is highly unsatisfactory
from an environmental point of view. First, the conditions attached to the prohibition of Articles 35
and 55 of Additional Protocol I are excessively restrictive, making the prohibition much too narrow
from an environmental point of view. Second, the exact scope of this prohibition remains uncertain,
and thus difficult to implement or enforce.
Moreover, elements of the environment as civilian objects are all too likely to become
military objectives, invalidating their protections as civilian objects and environmental damage as
collateral damage and the question of proportionality – which is permissible only to the extent that it
is not excessive in relation to the concrete and direct military advantage anticipated as a result of the
attack and there is a lack of clarity about the practical issues of proportionality where environmental
damage is collateral damage, caused by attacks against military objectives.
14
What ENMOD Convention saying about is also referred as Geophysical Warfare(GW). It refers to military tactics
that turn the geophysical patterns of the earth into weapons, for instance, by provoking earthquakes, tsunamis, and
changes in weather patterns (prohibited by the 1976 ENMOD Convention).
15 Yoram Dinstein; ‘Protection of the Environment in International Armed Conflict’, Max Planck YBUN Law, Vol.5,
2001, 523-549, at p.530
16 Natural environment: it “should be understood in the widest sense to cover the biological environment in which a
population is living” – i.e. the fauna and flora – as well as “climate elements”
205
It means mere inadvertent collateral environmental effect of an attack does not come within
the compass of the prohibition and as long as the damage to the natural environment (and the
consequential prejudice to the health and survival of the population) is neither intended, no breach of
the Protocol occurs.17
Some commentators claims that the provisions of these article are accepted as part and
parcel of customary international law18 but as per ICJ Arts. 35(3), 55(1) have not yet crystallized as
customary international law.19
Supplementary legal instruments
a. The Rome Statute of International Criminal Court, 1998
Article 8(2)(b)(iv) of the Statute includes damage to civilian objects or widespread, longterm and severe damage to the natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated are considered as commission of war
crimes.
b. Protocol III, Annexed to the 1980 Convention on Prohibitions or Restrictions of
the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively
Injurious or to Have Indiscriminate Effects
The Preamble of the 1980 Convention repeats verbatim (by “recalling”) the text of Arts.
35(3) of Protocol I (without citing the source). Art. 2(4) of Protocol III, annexed to the Convention
prohibits “to make forests or other kinds of plant cover the object of attack by incendiary weapons
except when such natural elements are used to cover, conceal or camouflage combatants or other
military objectives, or are themselves military objectives.”
In final analysis the provision is very limited in scope i.e. only a small part of the natural
environment under prohibition - forests or other kinds of plant cover. Also, it grants protection
not against attacks in general, but only against attacks by specific (incendiary) weapons. And the
protection ceases when the enemy is using the forests for cover, concealment or camouflage; or when
they constitute military objectives.20
It means the provision has little or no practical significance and Protocol III is also not
accepted as customary international law.21
The 1993 Convention
17
18
on the
Protection
of the
Development, Production, Stockpiling
and
Ibid. at p.533
S. Gupta; ‘Iraq’s Environmental Warfare in the Persian Gulf’, Geo.Int’l Envt. L. Rev. 6 (1993-1994), 251 et set., at
260
19 ICJ Advisory Opinion in Nuclear Weapons Case (1996) and see also op. cit. note 9
20 Military objectives are authoritatively defined as “those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in
the circumstances ruling at the time, offers a definite military advantage”. [Article 52(2), Additional Protocol I]
21 Op. cit. note 9
206
Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention)
7th preambular paragraph of the Convention recognizes “the prohibition, embodied in the
pertinent agreements and relevant principles of international law, of the use of herbicides as a
method of warfare.”
The use of herbicides (chemical defoliants) for military purposes – primarily, in order to
deny the enemy sanctuary and freedom of movement in dense forests – caught wide attention during
the Vietnam War, owing to the magnitude of American herbicide operations and the fact that they
stretched over a long period of time. The United States conceded that resort to herbicides can come
within the purview of the prohibition of the ENMOD Convention, but only if it upsets the ecological
balance of a region.
The interpretation that the use of herbicides can under certain conditions “be equated
with environmental modification techniques under Article II of the ENMOD Convention” was
authoritatively reaffirmed in a Review Conference in 1992.22
This paragraph (i.e. 7th preambula) was a part of a ‘compromise package’, whereby herbicides
were simultaneously omitted from the definition of banned chemical weapons in the operative clauses
of the CWC.
Interestingly, the US – although considering the CWD’s prohibitions to be inapplicable to
herbicides – “has formally renounced the first use of herbicides in time of armed conflict” (except
within US installations or around their defensive perimeters).
Study of customary IHL23
Rule 43. The general principles on the conduct of hostilities apply to the natural environment:
A. No part of the natural environment may be attacked, unless it is a military objective.
B. Destruction of any part of the natural environment is prohibited, unless required by imperative
military necessity.
C. Launching an attack against a military objective which may be expected to cause incidental
damage to the environment which would be excessive in relation to the concrete and direct
military advantage anticipated is prohibited. [IAC/NIAC]
Rule 44. Methods and means of warfare must be employed with due regard to the
protection and preservation of the natural environment. In the conduct of military operations, all
feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to
the environment. Lack of scientific certainty as to the effects on the environment of certain military
22
A. Bouvier; ‘Recent Studies on the Protection of the Environment in Time of Armed Conflict’, IRRC 32 (1992),
554 et seq., at p.563
23 Jean-Marie Henckaerts; ‘Study on customary international humanitarian law: A contribution to the understanding
and respect for the rule of law in armed conflict’, IRRC, Vol. 87 No. 857 March 2005, 175-212
207
operations does not absolve a party to the conflict from taking such precautions. [IAC/NIAC]
Rule 45. The use of methods or means of warfare that are intended, or may be expected, to
cause widespread, long term and severe damage to the natural environment is prohibited. Destruction
of the natural environment may not be used as a weapon. [IAC/arguably NIAC]
Rules 72, 73, 74 and 75 prohibit the use of poison or poisoned weapons, biological weapons,
chemical weapons and riot-control agents as a method of warfare. [IAC/NIAC]
Rule 76. The use of herbicides as a method of warfare is prohibited if they:
(a) Are of nature to be prohibited chemical weapons;
(b) Are of a nature to be prohibited biological weapons;
(c) Are aimed at vegetation that is not a military objective;
(d) Would cause incidental loss of civilian life, injury to civilians, damage to civilian objects,
or a combination thereof, which may be expected to be excessive in relation to the concrete
and direct military advantage anticipated; or
(e) Would cause widespread, long- term and severe damage to the natural environment. [IAC/
NIAC]
III
Key findings and Conclusion:
1. It is a regrettable fact that customary international law has not yet developed to the point
where adequate protection is provided for the environment in wartime.
2. The primary provisions that directly protect the environment during armed conflict –
Articles 35 and 55 of Additional Protocol I – do not adequately achieve this aim because the
‘widespread, long –term and severe’ damage threshold is imprecise and difficult to meet,
leaving much of the serious environmental harm arguably outside the scope of current
protections. Thus, these terms require clear and more appropriate definitions.
3. Provisions in IHL that regulate the means and methods of warfare or protect civilian property
and objects provide indirect protection of the environment during armed conflicts.
4. Because few IHL norms explicitly address environmental protection, indirect means may
provide more effective protection by regulating the means and methods of warfare or
by protecting civilian persons and objects. However, the gap here is that elements of the
environment are likely to become military objectives. This problem may be solved by using
Articles 59 and 60 of Additional Protocol I (non-defended localities and demilitarized zones)
as a model for rendering environmentally sensitive areas immune.
5. There is a lack of clarity surrounding collateral damage to civilian objects as a result of
attacks against military objectives. The gap here is a lack of clarity about the practical
proportionality issues where environmental damage is collateral damage, caused by attacks
against military objectives.
6. The majority of international legal provisions protecting the environment during armed
conflict were designed for international armed conflicts and do not necessarily apply to non-
208
international armed conflicts.24 This is problematic, as the vast majority of current armed
conflicts are non-international.
7. There is a lack of case law on protecting the environment during armed conflict because of
the limited number of cases brought before the Courts.
8. The general humanitarian principles of distinction, necessity, and proportionality may not be
sufficient to limit damage to the environment.25
9. Environmental damage that contributes to war crimes, crimes against humanity and genocide
is a criminal offence under international law.
10. Unless otherwise stated, International Environmental Law continues to apply during armed
conflicts and could be used as a basis for protection.
11. Human Rights Law, Commissions and Tribunals can be used to investigate and sanction
environmental damage caused during international and non-international armed conflicts.
12. The UN should defined “conflict resources”26 articulate triggers for sanctions and monitor
their enforcement.
13. The ICRC Guidelines on the Protection of the Environment during Armed Conflict (1994)
require updating and subsequent consideration by the UN General Assembly for adoption,
as appropriate.
14. The International Law Commission should examine the existing international law for
protecting the environment during armed conflict and recommend how it can be classified,
codified and expanded.
15. Restrictive interpretations of the ENMOD Convention makes it a useless legal instrument.
16. Called for adoption of a comprehensive and innovative new Convention- a ‘Fifth Geneva
IHL classifies two types of armed conflicts. International Armed Conflict (IAC), which is a conflict involving
two or more States, regardless of whether a declaration of war has been made or whether the parties recognize
that there is a state of war. Parties engaged in an IAC are subject to a wide range of rules, including those set out
in the four Geneva Conventions and Additional Protocol I. Peoples are fighting against colonial domination, alien
occupation or racist regimes in the exercise of their right to self-determination then it also regarded as IAC. And,
Non-international armed conflict (NIAC), which means a conflict which is restricted to the territory of a single
State, and involving either regular government armed forces and a non-governmental party/insurgency, or nongovernmental armed groups fighting each other. A more limited range of rules applies to NIAC. These are covered
under Article 3 common to the four Geneva Conventions, as well as in Additional Protocol II; also referred to as
civil war or internal armed conflict.
25 Principle of distinction is a cornerstone of IHL and the first test to be applied in warfare: it distinguishes between
military and civilian objects, and prohibits indiscriminate attacks and direct attacks against civilian objects.
Principle of humanity prohibits inflicting unnecessary suffering, injury and destruction.
Principle of military necessity implies that the use of military force is only justified to the extent that it is necessary to
achieve a definite military objective.
Proportionality/ the principle of proportionality means that the collateral harm must not be “excessive in relating to the
concrete and direct military advantage anticipated” when an attack is launched against a military objective. (Art.
57, Additional Protocol I)
26 Conflict resources means natural resources whose systematic exploitation and trade in a context of conflict
contribute to, benefit from or result in the commission of serious violations of human rights, violations of IHL, or
violations amounting to crimes under international law (for financing conflict – such as diamonds, oil and timber).
24
209
Protection Of Cultural Heritage During Armed Conflicts:
International Legal Response
ShishirTiwari1
Armed conflicts - whether international or internal - do adversely affect people. In
fact destruction of human life, property and natural resources constitute an inherent
component of armed conflicts. The destruction resulting from war breaks traditions
and cuts off the transfer of knowledge and experience to future generations, forcing
these generations to start anew. Moreover war is also dangerous to the best that man
has made - art, culture, monuments and the whole cultural and historic heritage.
Ironically, the practice of destruction of cultural heritage has existed since time
immemorial. It has proved even more devastating since the introduction of aerial
bombing, long-distance weapons such as artillery and tank fires as well as precision
guided munitions and ballistic missiles. In this backdrop, present paper makes a
modest attempt to analyse the responses made by the International Law for the
protection of cultural heritage during armed conflicts.
Cultural Heritage
In simple terms, cultural heritage is what a society continues to possess from its past that
relates to its culture. Culture has been regarded as the mirror of humanity and cultural heritage
represents a historical record and understanding of “the entire spirit of a people in terms of its values,
actions, works, institutions, monuments and sites.”2 In an ‘inter-generational’ context, Edith Brown
Weiss has considered cultural heritage to include the intellectual, artistic, social, and historical record
of mankind.3 Moreover, cultural heritage also could be regarded as comprising those aspects and
traditions which express the way of life and thought of a particular society, and which are evidence
of its intellectual and spiritual achievements.4 In fact cultural heritage can take the form of literature,
dance, music, art, paintings, handicrafts, buildings and structures of archaeological significance.
1
2
3
4
Assistant Professor, Department of Law, North-Eastern Hill University, UmshingMawkynroh,Shillong-22,
Meghalaya, INDIA.
Remarks of Mr. Jan Kavan, President of the Fifty-seventh Session of the United Nations General Assembly, of 4
December 2002 on the occasion of the United Nations Year for Cultural Heritage, available [Online: web], accessed
on 12 July2012, URL: http://www.un.org/ga/president/57/pages/speeches/statement021204-Heritage.htm.
Edith Brown Weiss (1984), “The Planetary Trust: Conservation and Intergenerational Equity”, Ecology Law
Quarterly, 11(4): 495-581, p. 495.
Lyndel v. Prott (1989), “Problems of Private International Law for the Protection of the Cultural Heritage”,
Recueil des Cours, 217(V): 221-317, p. 224
210
Cultural heritage, however, can be broadly divided into two categories5:
(1) Tangible cultural heritage; and
(2) Intangible cultural heritage (oral traditions, folklore, performing arts, ceremonies,
rituals, etc.)
Tangible cultural heritage can also be further divided into three categories:
(1) Immovable (monuments, prehistoric caves with evidence of the life and artistry of our
early ancestors, archaeological sites, ritual and ceremonial cites, natural sites held by
human beings, etc.)
(2)
Movable (paintings, coins, sculptures, archaeological objects, etc.)
(3)
Underwater cultural heritage (shipwrecks, underwater cities, etc.)
Armed Conflict: An Overview
A.meaning Of Armed Conflict
In common parlance the terms “war” and “armed conflict” are often used interchangeably.
But in the field of international law use of both the concepts denotes substantive difference between
them. The concept of armed conflict is much broader than the concept of war. As such war as a
concept does not cover “measures short of war” such as reprisals, armed interventions, blockades
and other uses of armed force which did not have the same effect as that produced by a state of war.6
It also does not cover the concept of “civil war”. However, the concept of armed conflict covers all
these situations.7 Hence war amounts to armed conflict but vice-versa is not true.8 Armed conflict
5
6
7
8
Ben Boer et al. (1998), InternationalEnvironmental Law in the Asia pacific, The Hague: Kluwer Law International,
p. 71. Lyndel v. Prott, however, classifies cultural heritage into five categories:
(i) material things (immovable objects), such as monuments and sites; (ii) movable objects, such as paintings,
drawings ,sculptures, ceramics and textiles ;(iii) ideas on which new skills, techniques and knowledge are built;
(iv) patterns of behaviour and knowledge embodied in skills (e.g. ,samurai sword polishing in Japan), ceremonies
(e..g., the tea ceremony in Japan), rituals (e.g., initiation in many cultures) and ceremonies where traditions may
be handed on in song, dance or spoken words and (v) information relating to above four categories (e.g., how a
musical instrument was used, on what occasion and by whom). See Lyndel v. Prott (1989), note 3, pp. 224-225.
Karl Josef Partsch (1992), “Armed Conflict”, in R. Bernhardt (Ed.) Encyclopaedia of Public International Law,
Vol.1, Amsterdam: North Holland, pp. 249-250.
The ICRC Commentary to the Geneva Conventions explains that the term “armed conflict” came into existence
in order to circumvent arguments by States committing hostile acts that they are not making war but merely
engaging in police enforcement or legitimate acts of self-defence. See Jean S. Pictet (1958), Commentary on I
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
Geneva: ICRC, p. 32.
Ingrid Detter De Lupis (1987), The Law of War, Cambridge: Cambridge University Press, p. 18.
211
may or may not be war.
The term “armed conflict” was used for the first time in the four Geneva Conventions of
1949. Article 2 Common to the Geneva Conventions provides that the Conventions shall apply:
9
. . . To all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized
by one of them.10
This Article considers declared war as only an example of armed conflict. Apart from this,
the Article 3 common to the Geneva Conventions mentions “armed conflict not of an international
character”. However, the Geneva Conventions do not define the term “armed conflict”. The Appeals
Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY)11 in the Tadic
Case12 explained what constitutes an armed conflict. According to the Appeals Chamber:
An armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State.13
The above definition of armed conflict provided by the Appeals Chamber covers all
contemporary use of force.14
B. Types Of Armed Conflict
Armed conflicts are mainly of two types: international armed conflicts and non-international
or ‘internal’ armed conflicts. Therefore,from the legal point of view, the ICRC does not consider that
9
10
11
12
13
14
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, 12 August 1949, 75 UNTS 31 [hereinafter Geneva Convention I], also available [Online: web],
URL:http://www.icrc.org/ihl.nsf/FULL/365?OpenDocument; Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, 75
UNTS 85 [hereinafter Geneva Convention II], also available [Online: web], URL: http://www.icrc.org/ihl.
nsf/FULL/370?OpenDocument; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August
1949, 75 UNTS 135 [hereinafter Geneva Convention III], also available [Online: web], URL:http://www.icrc.
org/ihl.nsf/FULL/375?OpenDocument; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, 12 August 1949, 75 UNTS 287 [hereinafter Geneva Convention IV], also available [Online: web],
URL:http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument; hereinafter, collectively, “Geneva Conventions”.
Ibid., common Article 2.
The 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(ICTY) was established by
Security Council Resolution 827 of 25 May 1993, UN Doc. S/RES/827 (1993), reprinted in 32 ILM 1203 (1993).
Prosecutor v. DuskoTadic (Case No. IT-94-1-AR72), ICTY’s Appeals Chamber Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction of 2 October 1995, reprinted in 35 ILM 32 (1996), also available [Online:
web], URL: http://www.un.org/icty/tadic/appeal/decision-e/51002.htm.
Ibid., paragraph 70.
Anne - Marie Slaughter& William Burke-White (2002), “An International Constitutional Moment?”, Harvard
International Law Journal,43(1): 1-21, pp. 4-5.
212
any other type of armed conflict exists.15
An international armed conflict has traditionally been viewed as a conflict between two
16
States. According to Article 2 common to the Geneva Conventions, an international armed conflict
arises between “two or more of the High Contracting Parties”17 (i.e. States). It is immaterial as to how
long the conflict lasts, or how much slaughter takes place.18 An international armed conflict occurs
when one or more of the States have recourse to armed force against another State, regardless of the
reasons or the intensity of this confrontation.19The Additional Protocol I20 to the Geneva Conventions
extends the scope of international armed conflicts and includes those armed conflicts in its ambit in
which peoples are fighting against colonial domination, alien occupation or racist regimes in the
exercise of their right to self-determination.21 Thus wars of national liberation also form part of the
cases of international armed conflicts.
Article 3 common to the Geneva Conventions talks about the “armed conflicts not of an
international character,” i.e. non-international armed conflicts. It provides that such conflicts occur
“in the territory of one of the High Contracting Parties.”22Unlike international armed conflicts that
involve fighting between the armed forces of at least two States, non-international armed conflicts
could occur between governmental armed forces and non-governmental armed groups or between
such groups only.23 In the Tadic case, the Appeals Chambers of the ICTY observed that a non15 ICRC (2008), “How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Opinion Paper)”,
1-5, available on the web, accessed on 15 April 2008, URL: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/
armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf, p. 1
16 Natasha T. Balendra (2007), “Defining Armed Conflict”,New York University School of LawPublic Law & Legal
Theory Research Paper Series Working Paper No. 07-22, 1-58, available on the web, accessed on 20 March 2008,
URL: http://ssrn.com/abstract=1022481, p. 12.
17
Geneva Conventions, note 8, Common Article 2.
18 Jean S. Pictet (1958), note 6, p. 32.
19
ICRC (2008), note 14, p. 1.
20
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (1979), reprinted in 16 ILM 1391[hereinafter Additional
Protocol I], also available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.
21 Ibid., Article 1(4). According to the Article 1(4), the Additional Protocol I, which supplements the protections
available in international armed conflict, applies also to “armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations.”
22
Geneva Conventions, note 8, Common Article 3.
23
Additional Protocol II (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protections of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (1979), reprinted in
16 ILM 1442 [hereinafter Additional Protocol II], also available [Online: web], URL: http://www.icrc.org/ihl.nsf/
FULL/475?OpenDocument)to the Geneva Conventions, however, provides a more restrictive definition of noninternational armed conflict. According to Article 1(1) of the Protocol, non-international armed conflicts “take
place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over a part of its territory
213
international armed conflict exists “whenever there is . . . protracted armed violence between
governmental authorities and organized armed groups or between such groups within a State.”24 This
definition encompasses all the elements of a non-international armed conflict as provided in common
Article 3.
Non-international armed conflicts are distinguished from less serious forms of violence.
Eevery hostility within a State does not automatically become non-international armed conflict. To
differentiate non-international armed conflict from less serious forms of violence two criteria could
generally be used:25
(1) The hostilities must reach a minimum level of intensity. This may be the case, for
example, when the hostilities are of a collective character or when the government is obliged
to use military force against the insurgents, instead of mere police forces.26
(2) Non-governmental groups involved in the conflict must be considered as “parties to the
conflict”, meaning that they possess organized armed forces. This means for example that
these forces have to be under a certain command structure and have the capacity to sustain
military operations.27
Thus, in the end, it could be contended that non-international armed conflicts are protracted
armed confrontations occurring between governmental armed forces and the forces of one or more
armed groups, or between such groups arising on the territory of a State (party to the Geneva
Conventions). It is also necessary that the armed confrontation must reach a minimum level of
intensity and the parties involved in the conflict must show a minimum of organisation.
Impact Of Armed Conflicts On Cultural Heritage
24
25
26
27
Armed conflicts, whether international or civil, can be triggered by diverse causes including
as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
But this restrictive definition is relevant for the application of Protocol II only and does not extend to the law
of non-international armed conflict in general, as Additional Protocol II “develops and supplements Article
3 common to the Geneva Conventions without modifying its existing conditions of application.”
Additional Protocol II, Article 1(1).
Prosecutor v. DuskoTadic, note 11, paragraph 70. However, in its decision on the merits, the Appeals Chamber
noted that an internal armed conflict may become international (or, depending upon the circumstances, be
international in character alongside an internal armed conflict) if “(i) another State intervenes in that conflict
through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of
that other State.” See Prosecutor v. DuskoTadic, note 23, paragraph 84.
Prosecutor v. DuskoTadic (Case No. IT-94-1-T), ICTY’s Trial Chamber Judgment of 7 May 1997, also available
[Online: web], URL: http://www.un.org/icty/tadic/trialc2/judgement/index.htm, paragraphs 561-568; see also,
Prosecutor v. FatmirLimajet al. (Case No. IT-03-66-T), ICTY’s Trial Chamber Judgment of 30 November 2005,
also available [Online: web], URL: http://www.un.org/icty/limaj/trialc/judgement/index.htm, paragraph 84.
For a detailed analysis of this criterion, see Prosecutor v. FatmirLimaj, note 24, paragraphs 135-170.
For a detailed analysis of this criterion, see Prosecutor v. FatmirLimaj, note 24, paragraphs 94-134.
214
ethnicity, culture, territory, religion, and distribution of wealth or a general breakdown in governance.28
They are, by definition, destructive and their direct and indirect negative impacts on cultural heritage
tend to be immense and long lasting. Moreover, armed conflicts, have been, and remain one of
the major causes for the loss of cultural patrimony of the peoples of the areas ravaged by both
international and civil conflicts. The looting and destruction of cultural heritage is also mainly linked
with warfare.
The Cultural heritage has been intentionally or unintentionally suffered during armed
conflicts. In fact any such destruction and loss of cultural heritage have generally occurred as a
consequence of fanatic iconoclasm or as “collateral damage” of armed conflicts.29In numerous
conflicts belligerents have tried to obtain psychological advantage by directly attacking the enemy’s
cultural heritage without any justification of military necessity.30In fact the main purpose of cultural
heritage destruction is to erase ethnic, religious, and cultural memories and therefore to undermine
or eliminate groups’ identities and existence.31
It is a fact that destruction of cultural heritage during armed conflicts is not a modern
phenomenon. There are a number of examples that can be cited to prove the above fact. As early
as 391 AD, the Roman Emperor Theodosius ordered the demolition of the temple of Serapis in
Alexandria, to obliterate the last refuge of non-Christians.32 Old Greek libraries in Alexandria
which treasured the literature of centuries were destroyed in 642 AD. The famous golden horses
of St. Marks (Venice) were reputedly captured from Constantinople in the looting of the city by the
Venetians following its fall to the First Crusade on 13 April 1204 and were in turn seized by France
on the orders of Napoleon and taken to Paris in 1798.
Similarly, various Hindu temples were destroyed and forcibly converted into mosques in the
Mogul India. The Destruction of Samarqand (Uzbekistan, at that time it was part of Soviet Union)
by Chengiz Khan resulted in the disappearance of the arts and crafts that had flourished in Central
Asia for hundreds of years.33 Nadir Shah plundered the city of Delhi in 1739 and looted its treasurers,
including the famous Peacock throne and Kohinoor diamond.34 The Napoleonic wars produced the
28
29
30
31
32
33
34
UNESCO (2007), World Heritage - Challenges for the Millennium, Paris: UNESCO World Heritage Centre, 1-200,
available on the web, accessed on 14 July 2012, URL: http://whc.unesco.org/documents/publi_millennium_
en.pdf, p. 173.
Francesco Francioni and FedricoLenzerini (2003), “The Destruction of the Buddhas of Bamiyan and International
Law”, European Journal of International Law, 14(4): 619-651, pp. 619-620.
HiradAbtahi (2001), “The Protection of Cultural Property in Times of Armed Conflict: The Practice of the
International Criminal Tribunal for the Former Yugoslavia”, Harvard Human Rights Journal, 14(1): 1-32, p. 1.
Sanja Zgonjanin (2005), “The Prosecution of War Crimes for the Destruction of Libraries and Archives during
Times of Armed Conflict”,Libraries & Culture, 40(2): 128-144, p. 128.
Francesco Francioni and FedricoLenzerini (2003), note 28, p. 620.
Jawaharlal Nehru (1935), Glimpses of World History, 14th Reprint, New Delhi, pp. 218-219; quoted in P. IshwaraBhat
(2001), “Protection of Cultural Property under International Humanitarian Law: Some Emerging Trends”, ISIL
Yearbook of International Humanitarian and Refugee Law, 1: 47-71, p. 52.
K.M. Panikkar (1971), A Survey of Indian History, Bombay, pp. 116-117; quoted in R.P. Anand (2005), Development
of Modern International Law and India, Baden-Baden (Germany): Nomos, pp. 41-42.
215
most prolific looting of art and cultural property. As a result of his conquests (from 1796 to 1799)
from Egypt and all over Europe (especially Italy), Napoleon made the Louvre (France) the largest
museum in Europe.35 This trend of destruction of cultural heritage even continued in the nineteenth
century.
In the twentieth century, armed conflicts proved more destructive to the cultural heritage.
Introduction of aerial bombing and long distance weapons added new dimension to the nature of war.
During the First World War, the library at the University of Louvain (Belgium) was burned and the
cathedral of Rheims (France) was severely damaged by serial bombardment.36 The Second World
War was far more traumatic than the first one since a vast amount of cultural heritage was wantonly
destroyed by the use of heavy bombers. It resulted into the largest and systematic destruction and
displacement of cultural sites and objects known to human history.37The German Nazis systematically
plundered or destroyed cultural heritage wherever they went.38 Apart from seizing Jews’ cultural
heritage, the Nazis destroyed 427 museums in the Soviet Union.39 They not only looted art works but
also destroyed various libraries, including the Louvain library. The Allied forces, in turn, bombarded
the treasure city of Dresden. The ancient monastery of Monte Cassino (Italy) was destructed on 15
February 1944 by the United States (US) shelling.40 As a tragic, at the end of the war, the Soviets
plundered over a million objects from Germany, claiming them as reparations and replacement for
what they had lost.
Since the Second World War, there have been numerous armed conflicts that have
contributed to the destruction and disappearance of much cultural heritage of great importance. In
the post second world war period a new threat to cultural heritage emerged in the form of increasing
35 Napoleon exacted huge concessions of works of art from Italians, formalizing some of them as “repatriations” in
the terms of armistice treaties imposed on the losers. As part of the truce the Vatican agreed to surrender nearly
500 manuscripts and 100 pictures, which were in the Vatican’s possession dated before 900 AD. Venice suffered
almost as badly as the Vatican. In 1797, Napoleon removed the famous bronze horses of Venice. Milan also lost
twenty nine pictures. Other European cities suffered similar fates. Berlin and Potsdam lost 60 paintings and a
collection of carved gems and medallions. Vienna lost 250 paintings from one museum alone. See John Henry
Merryman (2005), “Cultural Property Internationalism”, International Journal of Cultural Property, 12(1): 1139, p. 15; see also, Matthew K. Steen III (2008), “Collateral Damage: The Destruction and Looting of Cultural
Property in Armed Conflict”, 1-42, available on the web, accessed on 14 July 2012, URL: http://works.bepress.
com/cgi/viewcontent.cgi?article=1000&context=matthew_steen, pp. 6-7.
36 Patty Gerstenblith (2006), “From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the
Beginning of the 21st Century”, Georgetown Journal of International Law, 37(2): 245-351, p. 257.
37 Ibid.,p. 258.
38 Nazis were engaged in a highly organised campaign of art plunder. Responsibility for carrying out confiscation of
art works and cultural objects was in the hands of a “special unit” (Einsatzstab der Dienstellen des Reichsleiter)
under the head of Alfred Rosenberg, a high Nazi official. This organisation seized those cultural objects which
were directed by the Nazi party officials, principally Hitler and Goering. See John Henry Merryman (2005), note
34, pp. 18-19.
39
John Henry Merryman and Albert E. Elsen (2002), Law, ethics and the Visual Arts, Fourth Edition, The Hague:
Kluwer Law International, pp. 28-29.
40 Joshua E. Kastenberg (1997), “The Legal Regime for Protecting Cultural Property during Armed Conflict”, Air
Force Law Review, 42: 277-305, p. 289.
216
instances of non-international armed conflict.41 Often with the aim of destroying the adversary’s or
the opposing “ethnic group’s” cultural heritage, these conflicts have caused devastating effect on
them. Destruction of cultural heritage during the series of bloody armed conflicts that took place in
the last decade of twentieth century in the former Yugoslavia’s is the most relevant example in this
regard.42 Unfortunately, cultural heritage that was not a military target was deliberately attacked
by the opposing ethnic groups in these conflicts that sought to destroy the traces or symbols of the
ethnic “enemy’s” culture. In this spree many churches, mosques, monasteries, libraries, archives,
monuments and even cemeteries were destroyed.43 However, the significant examples include: (i)
destruction of sixty three percent of Dubrovnik (Croatia), the most outstanding historic town of
Europe, during 1991-199244; (ii) deliberate blowing of Mostar bridge (Mostar, Bosnia-Herzegovina),
which was built in 1566 by the Ottoman Empire and was a symbol of Mostar’s multi-cultural and
multi-ethnic past, by the Croatian Army tank firing on 9 November 1993;45 and (iii) the destruction of
the National and University Library of Sarajevo (Bosnia and Herzegovina) by heavy bombardment
made during the night between 25 and 26 August 199246
The violent and brazen destruction of the great rock sculptures of the Buddhas of Bamiyan
by military and para-military forces of Afghanistan’s Taliban government in March 2001 once again
showed the vulnerability of cultural heritage during armed conflicts. These two monumental Buddha
statutes, towering 53 and 36 meters respectively, were carved in sandstone cliffs in the third and fifth
centuries AD in Bamiyan (Afghanistan). Manifestation of the perfection of Gandhara art, they were
the most important cultural treasurers of the Afghanistan and the representative of its pre-Islamic
past. In pursuance of an edict issued by the Taliban supreme leaderMullah Mohammed Omar, Taliban
forces destroyed BamiyanBuddhas by the use of mortars, dynamite, tanks, anti-aircraft weapons and
41 UNESCO (2005), Protect Cultural Property in the Event of Armed Conflict: A Information Kit, 1-23, available on
the web, accessed on 14July 2012, URL: http://www.unesdoc.unesco.org/images/0013/001386/138645e.pdf, p.
3.
42
The former Socialist Federal Republic of Yugoslavia (SFRY) disintegrated in a series of armed conflicts that
continued for a decade in the breakup: Slovenia 1991, Croatia 1991-1995, Bosnia-Herzegovina 1992-1995,
Kosovo 1998-1999, Macedonia 2001.
43 For a detailed account of destruction caused to the cultural heritage of the former Yugoslavia
in the 1990’s, see Andras J. Riedlmayer (2003), Destruction of Cultural Heritage in
Bosnia-Herzegovina,
1992-1996:
APost-war
Survey
of
Selected
Municipalities.
(Expert
report
prepared
for
the
International
Criminal
Tribunal
for
the former Yugoslavia), 1-31, available on the web, accessed on 15July 2012 URL: http://hague.bard.edu/
reports/BosHeritageReport-AR.pdf; Andras J. Riedlmayer (2007), “Crimes of War, Crimes of Peace: Destruction
of Libraries during and after the Balkan Wars of the 1990s”, Library Trends, 56(1): 107-132.
44 P. IshwaraBhat (2001), note 32, p. 49.
45 Andras J. Riedlmayer (2007), note 42, p. 119.
46 As per the estimation 90 percent of the library collection as well as the library catalogue were burned down. The
loss included around 1.5 million books; 155,000 rare books, including incunabula; collections of manuscripts
in different languages; the National Archive; the Collection of the University of Sarajevo; Bosnian periodicals
published since the middle of the nineteenth century; as well as other material pertaining to history, research,
development, and education in Bosnia and Herzegovina. See SanjaZgonjanin (2005), note 30, p. 135.
217
rockets47. The destruction of the Buddhas of Bamiyan shocked the whole world.48 It added new
features in the pathology of State behaviour toward cultural heritage as the purpose of destruction
was not in any way linked to a military objective. It was sadistic and inspired by the sheer will to
eradicate any cultural manifestation of religious or spiritual creativity that did not correspond to the
Taliban view of religion and culture.49 It was aptly described as a “cultural disaster”.50 This episode
was also the first pre-planned and deliberate destruction of cultural heritage of great importance
as act of defiance of the UN and of the world community.51 It sparked worldwide indignation,
condemnation and outcry.
International Legal Response
It appears that the destruction of cultural heritage is as old as the concept of culture and as
old as the concern for the protection of cultural heritage during armed conflicts. The international
community has responded and made various legal efforts from time to time to protect cultural heritage
during armed conflicts. For the sake of convenience, the steps taken by the international community
can be analyzed into three segments representing three different time periods: (A) Before 1863, (B)
From 1863 to 1953 and (C) Since 1954.
A. Before 1863
47
Issued on 26 February 2001, edict prohibited the “adoration of idols”. It stated:
On the basis of consultations between the religious leaders of the Islamic Emirate of Afghanistan,
the religious judgments of the Ulema and the rulings of the Supreme Court of the Islamic Emirate of
Afghanistan, all statues and non-Islamic shrines located in the different parts of the Islamic Emirate of
Afghanistan must be destroyed. These statues have been and remain shrines of infidels and these infidels
continue to worship and respect these shrines. Allah almighty is the only real shrine and all false shrines
should be smashed.
Following the issuance of the edict, Taliban force started destruction of BamiyanBuddhas on 1 March 2001
and by 12 March 2001 it was totally vandalized. See “The Destruction of the Statues in Bamiyan”, available
[Online: web], accessed on 21 July 2012, URL:http://www.photogrammetry.ethz.ch/research/bamiyan/buddha/
destruction.html.
48 Destruction of BamiyanBuddhas occurred in an armed conflict or not, with regard to it the views of international
lawyers are divided. Some scholars consider that destruction occurred during a non-international armed conflict
(see P. IshwaraBhat (2001), note 32, p. 49; Francesco Francioni and FedricoLenzerini (2003), note 28, p. 632.),
whereas some are of the opinion that there was no situation like non-international armed conflict. Even they rule
out the view that the destruction took place in an international armed conflict, since the Bamiyan Valley and the
rest of Afghanistan were free of hostilities (except far north-east of Afghanistan, where sporadic warfare were
continued) and securely under the Taliban government’s control (see Patty Gerstenblith (2006), note 35, p. 247
(note 9); Roger O’Keefe (2004), “World Cultural Heritage: Obligations to the International Community as a
Whole?”, International and Comparative Law Quarterly, 53(1): 189-209, p. 195). However in the wake of
ICTY’s Trial Chamber decision in the Tadic case (Prosecutor v. DuskoTadic, note 14), the view of second category
scholars is untenable.
49
Francesco Francioni and FedricoLenzerini (2003), note 28, p. 620.
50ChristianMnahart (2004), “UNESCO’s Mandate and Recent Activities for the Rehabilitation of Afghanistan’s
Cultural Heritage”, International Review of the Red Cross, 86(854): 401-414, p. 401.
51 Francesco Francioni and FedricoLenzerini (2003), note 28, p. 620.
218
It seems that no legal efforts were made prior to 1863 to protect cultural heritage during
armed conflicts. However, there were enough instructions in almost every religion which prohibited
destruction of cultural heritage. Various scholars also expressed their concern over such destruction
and advocated for the protection of cultural heritage during armed conflicts.
The ancient Hindu laws of war52 made a distinction between military objects, which could
be the targets of attack, and non-military objects, which could not be attacked. So as a rule, warfare
was confined to combatants and the targets of attack were the armed forces. Neither cities nor
towns were allowed to be ravaged during war, even while armed forces were marching through
them.53 Under ancient Hindu law we do not find the use of the term “cultural heritage” or “cultural
property”. Still the principle of providing protection to such heritage existed. The recognized
customs and spiritual texts prohibited the attack on or destruction of all places of religious worship.
For instance, according to Agni Purana,the concept of righteous and just war (Dharma Yuddha)
ordained the belligerents to leave the “fruit and flower gardens, temples and other places of public
worship unmolested.”54
Under the Islamic law also the obligation to distinguish between civilian and military
objects is clearly imperative and permits no exception. Koran prohibits fighting in sacred places
like mosque.55 In fact instances are available wherein Islam issued injunctions protecting Christian
and Jewish places of worship, together with monasteries.56
Throughout history extracting booty was considered as an integral part of warfare. There was
no rule which could prevent armed forces from devastating a country or from seizing the enemy’s
52
53
54
55
56
In early religious and secular writings of ancient India there is evidence of what we know today as international
humanitarian law or laws of armed conflicts. For some of the writings on the concept of laws on armed conflicts
in ancient India, see Nagendra Singh (1969), India and International Law, New Delhi: S. Chand Publishers;L.
R. Penna (1989), “Written and Customary Provisions Relating to the Conduct of Hostilities and Treatment of
Victims of Armed Conflicts in Ancient India”, International Review of the Red Cross, 29(271): 333-348; V. S.
Mani (2001), “International Humanitarian Law: An Indo Asian Perspective”, International Review of the Red
Cross, 83(841): 59-76; Surya P. Subedi (2003), “The Concept in Hinduism of Just War”, Journal of Peace and
Conflict Studies, 8(2): 339-361; B. C. Nirmal (2007), “International Humanitarian Law in Ancient India”, in V. S.
Mani (Ed.), Oxford Handbook of International Humanitarian Law, New Delhi: Oxford University Press.
Nagendra Singh (1969), note 51, pp. 72-73. Even Kautilya emphasizes that, “when a fort can be captured by
other means, no attempt should be made to set fire to it . . .”; quoted in V. S. Mani (2001) (who in turn refers R.
Samasastry (transl.) (1956), Kautilya’sArthasastra, Mysore), note 51, p. 66.
Agni Purana, 236.22; quoted in Nagendra Singh (1969), note 51, p. 73.
Koran, Chapter VII, verse 191; quoted in P. IshwaraBhat (2001), note 32, p. 50.
The first caliph, Abu Bakr gave following instruction to his soldiers prior to the conquest of Syria and Iraq:
You will come upon a people who live like hermits in monasteries, believing that they have given up all for
Allah. Let them be and destroy not their monasteries.
Quoted in Francois Bugnion (2004), “The Origins and Development of the Legal Protection of Cultural Property
in the Event of Armed Conflict”, available [Online: web], accessed on 21 July 2012, URL: http://www.icrc.org/
web/eng/siteeng0.nsf/html/65SHTJ. To know in detail the Islamic view point on laws of armed conflicts, see
Sheikh Wahbeh al-Zuhili (2005), “Islam and International Law”, International Review of the Red Cross, 87(858):
269-283.
219
goods. The destruction of cultural heritage was also naturally considered an inevitable consequence
of war. In spite this character of war, however there was a countervailing view that certain properties
should be free from pillage and destruction. This view dates back to antiquity. The Greek historian,
Herodotus (484-430 B.C.), severely reprimanded the Persian King Xerxes for plundering Greek
and Egyptian religious and political centres.57 The Greeks clearly believed that cultural or ancient
treasures should be left untouched in wartime. Another Greek historian Polybius (202-120 B.C.)
was of the view that no one can wantonly destroy the temples, statues and other sacred objects
other than a madman. St. Augustine preached in “Truce of God” (989 A.D.) against looting and
desecration of place of worship and said that “[t]o wage war for loot is a sin”.58
With the advent of the 17th Century, Hugo Grotius, one of the founders of international law,
while acknowledging that the law of nations permitted the destruction and plunder of the property
of enemies,59 argued for changes in the laws. Grotius proposed that sacred or artistic works should
not be destroyed where there was no military advantage in doing so.60Emerich de.Vattel, an
international law jurist of 18th Century, advocated that nations should fight wars with the limited
purpose of defeating the enemy’s forces and should respect sanctuaries, tombs and other buildings
of cultural significance during war. Vattel argued that:
Devastations and destructions and seizures motivated by hatred and passion, however,
are clearly unnecessary and wrong: doubly wrong indeed, if they also destroy some
of the common property of mankind - its inheritance from the past, or its means of
subsistence and enrichment in the present.61
Vattel was very much concerned about the common ‘property of mankind’ and ‘pride of
mankind’. He sought to explain these concepts as follows:
For whatever cause a country is ravaged, we ought to spare those edifices which
do honour to human society, and do not contribute to the enemy’s strength- such as
temples, tombs, public buildings, and all works of remarkable beauty. What advantage
is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus
wantonly deprive them of these monuments of art and models of architecture . . . .62
57
58
59
60
61
62
Joshua E. Kastenberg (1997), “The Legal Regime for Protecting Cultural Property during Armed Conflict”, Air
Force Law Review, 42: 277-305, p. 280.
P. IshwaraBhat (2001), note 32, p. 50.
Section I (Chapter V) of Hugo Grotius (1625), The Law of War and Peace III, reprinted in Leon Friedman (1972),
The Law of War: A Documentary History, Vol. I, New York: Random House, 16-146, p. 42.
Section XII (Chapter VI) of Hugo Grotius (1625), The Law of War and Peace III, reprinted in Leon Friedman
(1972), note 58, pp. 52-53.
Stanlislaw E. Nahlik (1976), “International Law and the Protection of Cultural Property in Armed
Conflicts”, Hastings Law Journal, 27(5): 1069-1087, p. 1069.
Emerich de Vattel (1916), The Law of Nations or the Principles of National Law Applied to the Conduct and to
the Affairs of Nations and of Sovereigns, Vol.III, Washington, D.C.: Carnegie institution of Washington, p. 293
(originally published in French in 1758, translated by Charles G. Fenwick); quoted in John Henry Merryman
(2005), “Cultural Property Internationalism”, International Journal of Cultural Property, 12(1): 11-39, p. 14.
220
Thus, Vattel provided a strong argument for the protection of works of art and architecture in
time of war. He argued that cultural heritage should be spared in the interest of “mankind” and “human
society”. By emphasising on “works of remarkable beauty”, he broadened the ambit of cultural
heritage protected during war as it can include non-religious items. Vattel, however, recognized
military necessity as a ground for destruction of cultural heritage as an unhappy consequence of
the war. But he drew a distinction between necessity and mere convenience. He disapproved of the
destruction of cultural heritage simply on the basis of convenience.
Thus, it seems, in most of the cases protection of cultural heritage was secured by religious
instructions. The problem with these instructions, however, was that they were effective only when
the parties to an armed conflict shared the same culture and honoured the same god. In cases where
wars involved peoples of different faiths and cultures, such rules were often ignored. Still, theses
instructions and various scholarly contributions informed public at large about the importance of
cultural heritage and need to protect them. One could surmise that they cumulatively laid a basis for
the formulation of legal rules for the protection of cultural heritage during armed conflicts. Lieber
Code was one of the first examples of these rules.
B. From 1863 To 1953
1. The Lieber Code, 1863
The Instructions for the Government of Armies of the United States in the Field, 1863
[hereinafter the Lieber Code]63 was the first attempt to codify the laws of war and to formulate a
comprehensive body of principles to govern the conduct of belligerents in enemy territory.64 It
primarily focussed on the laws of war, and explicitly acknowledged the importance of charitable
institutions, collections, and works of art and contained various provisions pertaining protection of
them. Articles 34, 35 and 36 are relevant as regards this analysis.
As a general rule Article 34 provided that the property belonging to churches, hospitals,
establishments of an exclusively charitable character, establishments of education, or foundations
for the promotion of knowledge, whether public schools, universities, academies of learning or
observatories, museums of the fine arts, or of a scientific character would not be considered public
property.65 This rule was especially important for the protection of cultural heritage since Article
31 authorised victorious army to seize enemy public property.66 Thus the Lieber Code distinguished
63
64
65
66
The Instructions for the Government of Armies of the United States in the Field, 24 April 1863, reprinted in
Leon Friedman (1972), note 58, pp. 158-186, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/
FULL/110?OpenDocument.
For full discussion on Lieber Code, see George B. Davis (1907), “Doctor Francis Lieber’s Instructions for the
Government of Armies in the Field”, American Journal of International Law, 1(1): 13-25.
Lieber Code, note 62, Article 34.
Article 31 provides:
A victorious army appropriates all public money, seizes all public movable property until further direction
221
property belonging to charitable institutions, collections, and works of art from other types of
movable property. The Code made it clear that such property could not be used as normal war booty.
Article 35 sought to provide more robust protection to the cultural heritage:
Classical works of art, libraries, scientific collections, or precious instruments, such
as astronomical telescopes, as well as hospitals, must be secured against all avoidable
injury, even when they are contained in fortified places whilst besieged or bombarded.67
Similarly, Article 36 referred to a victorious State’s duty not to steal, destroy or injury such
heritage:
If such works of art, libraries, collections, or instruments belonging to a hostile nation
or government, can be removed without injury, the ruler of the conquering state or
nation may order them to be seized and removed for the benefit of the said nation. The
ultimate ownership is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the armies of the United
States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.68
The Lieber Code, however, was binding only on the forces of the United States. It was the
first codification of the obligation to safeguard cultural sites and objects during the time of warfare.69
In a way the Code provided an impetus to the further codification of the laws of war and the adoption
of similar regulations by other states especially in Europe.70 The influence of the Lieber Code’s
treatment of cultural heritage could be seen in various later international instruments which were
adopted afterwards.
2. The Brussels Declaration, 1874
International Declaration concerning the Laws and Customs ofWar, 1874 [hereinafter the
Brussels Declaration]71was adopted at a Conference held in Brussels. The Declaration, comprising
56 Articles, nevertheless formed an important step in the movement for the codification of the laws
by its government, and sequesters for its own benefit or of that of its government all the revenues of
real property belonging to the hostile government or nation. The title to such real property remains in
abeyance during military occupation, and until the conquest is made complete.
67
68
Ibid., Article 36. However, the protection provided under Articles 34, 35 and 36 is subject to Article 15 which
accepts military necessity as a justification for the destruction of property. Article 14 of the Lieber Code defines
military necessity as “the necessity of those measures which are indispensable for securing the ends of the war,
and which are lawful according to the modern law and usages of war.”Lieber Code, note 62, Article 14.
69
Patty Gerstenblith (2006), note 35, p. 254.
70
PietroVerri (1985), “The Condition of Cultural Property in Armed Conflicts: From Antiquity to World War II”,
International Review of the Red Cross, 25 (245) and (246): 67-85 and 127-139, p. 127.
71
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874,
available [Online: web], accessed on 23 July2012, URL: http://www.icrc.org/ihl.nsf/FULL/135?OpenDocument.
222
of war. The Declaration also had provisions for the protection of cultural heritage. Article 8 stated:
The property of municipalities, that of institutions dedicated to religion, charity and
education, the arts and sciences even when State property, shall be treated as private
property.
All seizure or destruction of, or wilful damage to, institutions of this character, historic
monuments, works of art and science should be made the subject of legal proceedings
by the competent authorities.72
This Declaration also provided that if a town or fortress, agglomeration of dwellings, or
village, was defended, the officer in command of an attacking force must, before commencing a
bombardment took all necessary steps to spare, as far as possible, buildings dedicated to art, science,
or charitable purposes.73 But such a protection was not available if they were used at the time for
military purposes.74
3. The Hague Convention (II), 1899
The Convention (II) with Respect to the Laws and Customs of War on Landand its annex:
Regulations concerning the Laws and Customs of War on Land, 1899 [hereinafter Hague Convention
(II)]75was adopted76 at the International Peace Conference at The Hague in 1899.77 This Convention
primarily focussed on prisoners of war and non-combatant civilians. Some of the articles did offer
protection to cultural heritage items.78 Articles 23(g), 25, 26, 27, 47 and 56 of the Convention’s
72 Brussels Declaration, note 70, Article 8.
73 Ibid., Article 16 and 17.
74 After the adoption of the Brussels Declaration, the Institute of International Law, at its session in Geneva, appointed a
committee to study the Brussels Declaration and to submit to the Institute its opinion and supplementary proposals
on the subject. The efforts of the Institute led to the unanimous adoption of the Manual of the Laws of War on
Land on 9 September 1880 at Oxford. The Manual, comprising 86 Articles, was drafted by GustaveMoynier.
Article 53 of the Manual protect cultural heritage, as it states:
The property of municipalities, and that of institutions devoted to religion, charity, education, art and science,
cannot be seized.
All destruction or wilful damage to institutions of this character, historic monuments, archives, Works of art, or
science, is formally forbidden, save when urgently demanded by military necessity.
See the Laws of War on Land, 9 September 1880, available [Online: web], accessed on 24 July 2012, URL: http://
www.icrc.org/ihl.nsf/FULL/140?OpenDocument.
75
Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning
the Laws and Customs of War on Land, The Hague, 29 July 1899, reprinted in Leon Friedman, note 58, pp. 221235, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument.
76
Convention was adopted on 29 July 1899 and entered into force on 4 September 1900.
77
Meetings of Conference held between 18 May 1899 and 29 July 1899.One of the purposes for which The Hague
Peace Conference of 1899 was convened was “the revision of the declaration concerning the laws and customs of
war elaborated in 1874 by the Conference of Brussels, and not yet ratified”.
78
Boylanconsiders this Convention as the first formal international treaty providing some protection
for cultural heritage. See Patrick J. Boylan (2002), “The Concept of Cultural Protection in Times of Armed
Conflict: From the Crusades to the New Millennium”, in K. W. Tubb& N. Brodie(Eds.), Illicit Antiquities:The
223
Annex (i.e.Regulations concerning the Laws and Customs of War on Land) were important in this
context.
Article 23(g) prohibited destruction or seizure of the enemy’s property, unless it was
“imperatively demanded by the necessities of war.”79 The Convention also explicitly prohibited the
attack or bombardment of towns, villages, habitations or buildings which were not defended.80 The
commander of an attacking force, even before commencing a bombardment (except in the case of
an assault) was required to take all necessary measures to warn the authorities.81 This provision
was intended to allow the concerned authorities to remove the movable heritage items. Article 27
prescribed that in sieges and bombardments all necessary steps should be taken to spare as far as
possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick
and wounded were collected, provided they were not used at the same time for military purposes.82
It further provided that the besieged should indicate these buildings or places by some particular
and visible signs, which should previously be notified to the assailants. Some protection was also
provided to immovable objects. Article 47 specifically forbade pillage.83
Article 56 required armies to take all necessary steps to avoid seizure, destruction, or
intentional damage to “religious, charitable, and educational institutions, and those of arts and
science” as well as to “historic monuments, works of art or science.”84 This Article represented a
departure from the principles enunciated in Article 36 of the Lieber Code. Article 36 of the Lieber
Code permitted armies to remove movable cultural objects (status of which was to be resolved in the
ultimate peace treaty), whereas Article 56 prohibited removal and seizure of any cultural objects.
4. The Hague Convention (IV), 1907
The Hague Convention (II) came to be revised at the Second International Peace Conference
of The Hague in 190785. As a result the Convention (IV) respecting the Laws and Customs of War on
Landand its annex: Regulations concerning the Laws and Customs of War on Land, 1907 [hereinafter
Hague Convention (IV)]86 came into existence. In fact The Hague Convention (IV) expanded the
79
80
81
82
83
84
85
86
Theft of Culture and the Extinction of Archaeology (One World Archaeology Series No. 42), London: Routledge,
p. 54.
Hague Convention (II), note 74, Article 23(g).
Ibid., Article 25.
Ibid., Article 26.
Ibid., Article 27.
Ibid., Article 47.
Ibid., Article 56.
Meetings of Conference held between 15 June 1907 and 18 October 1907. For the contributions of the First and
Second Hague Peace Conference in the development of international legal protection of cultural heritage during
armed conflict, see AdriaanBos (2005), “The Importance of the 1899, 1907 and 1999 Hague Conferences for
the Legal Protection of Cultural Property in the Event of Armed Conflict”, Museum International, 57(4): 32-40.
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, The Hague, 18 October 1907, reprinted in Leon Friedman, note 58, at 308323, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/195?OpenDocument. Convention was
224
Hague Convention (II).
The Regulations annexed to the Hague Convention (IV) had two key provisions relating to
protection of cultural heritage. The first was Article 27, which had been included in the Section II.87
It dealt with the obligation to avoid causing damage to a particular structure. It asserts:
In sieges and bombardments all necessary steps must be taken to spare, as far as possible,
buildings dedicated to religion, art, science, or charitable purposes, historic monuments,
hospitals, and places where the sick and wounded are collected, provided they are not
being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by
distinctive and visible signs, which shall be notified to the enemy beforehand.88
Thus, it seems this provision was almost a verbatim copy of the Article 27 of the Regulations
annexed to the Hague Convention II. It was, however, strengthened by strong language as it provided
that all necessary steps ‘must’ (rather than ‘should’) be taken. It further sought to add “historic
monuments” into the lists of buildings to be protected. The above mentioned provision, however,
contained two important conditions for granting protection to such buildings. First, the phrase “as far
as possible” provided softness to this hard law and restricted the obligation to avoid causing damage
to these buildings. It was also meant to accommodate the doctrine of military necessity.89 The second
condition sought to impose two obligations on the besieged. The first was to mark the buildings with
a distinctive sign (which must be communicated to the enemy in advance) and the second one was
to avoid using the buildings for military purposes. If the buildings were actually used for military
purposes then the protection granted under this provision would no more be available.
The second provision was Article 56. It had been kept in Section III which dealt with
“Military Authority over the Territory of the Hostile State”. It provided:
The property of municipalities, that of institutions dedicated to religion, charity and
education, the arts and sciences, even when State property, shall be treated as private
property.
All seizure of, destruction or wilful damage done to institutions of this character,
historic monuments, works of art and science, is forbidden, and should be made the
subject of legal proceedings.90
87
88
89
90
adopted on 18 October 1907 and entered into force on 26 January 1910.
Section II deals with ‘Hostilities’.
Hague Convention (IV), note 85, Article 27.
For the at length discussion on the concept of ‘military necessity’ in the context of cultural heritage, see generally
Craig J. S. Forrest (2007), “The Doctrine of Military Necessity and the Protection of Cultural Property during
Armed Conflicts”, California Western International Law Journal, 37(2): 177-219.
Hague Convention (IV), note 85, Article 56.
225
It appears that Article 56 intended to institute an absolute obligation to protect property
belonging to institutions of a religious, charitable, educational, historic and artistic character. Unlike
Article 27, which provided protection only to immovable cultural objects against hostile acts, Article
56 protected both movable and immovable cultural objects.
5. The Hague Convention (IX), 1907
The 1907 Convention (IX) concerning Bombardment by Naval Forces in Times of War
[hereinafter Hague Convention (IX)]91 was also adopted92 at the Second Hague International Peace
Conference (1907). Article 5 of the Convention provided protection to cultural heritage from the
activities of the naval forces. It stated:
In bombardments by naval forces all the necessary measures must be taken by the
commander to spare as far as possible sacred edifices, buildings used for artistic,
scientific, or charitable purposes, historic monuments, hospitals, and places where the
sick or wounded are collected, on the understanding that they are not used at the same
time for military purposes.
It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible
signs, which shall consist of large, stiff rectangular panels divided diagonally into two
coloured triangular portions, the upper portion black, the lower portion white.93
Alike Article 27 of the Regulations of the Hague Convention (IV) respecting the Laws
and Customs of War on Land (1907), this Article did not provide absolute protection. It contained
same limitations which were present in Article 27. Inhabitantswere under an obligation to mark the
buildings with a distinctive sign. Still, unlike Article 27, they were not required to communicate this
distinctive sign to the enemy in advance.
6. The Roerich Pact, 1935
TheTreaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,
1935 [hereinafter the Roerich Pact]94 was promulgated by the Organization of American States
(OAS) at its meeting in Washington, D.C. in 193595. This regional treaty entered into force on 26
August 1935. To date it has attracted ratification by only 10 States.96 It is the first treaty entirely
91
92
93
94
95
96
Convention (IX) concerning Bombardment by Naval Forces in Times of War, The Hague, 18 October 1907,
reprinted in Leon Friedman, note 58, pp. 348-353, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/
FULL/220?OpenDocument.
Convention was adopted on 18 October 1907 and entered into force on 26 January 1910.
Hague Convention (IX), note 90, Article 5.
The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Washington, 15 April
1935, 167 LNTS 290, reprinted in (1936), American Journal of International Law, 30(4): 195-198. Also available
[Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/325?OpenDocument.
The Roerich Pact (also known as Washington Treaty) was developed on the initiative of Professor Nicholas
Roerich.
These States are: Brazil, Chile, Colombia, Cuba, Dominican Republic, El Salvador, Guatemala, Mexico, United
226
devoted to protection of cultural heritage and it applies both in times of war and in peacetime.
Article 1 of this Pact provides that the following movable objects must be respected and
protected: historic monuments, museums, scientific, artistic, educational and cultural institutions.
It considers them as neutral.97 Such movable objects could, however, be protected only when they
are located in protected buildings. Such objects lose their protection if they are made use of for
military purposes.98 In order to identify the protected monuments and institutions, Pact provides that
a distinctive flag (red circle – with a triple red sphere in the circle on a white background) may be
used.99 Article 2 of the Pact imposes an obligation on the State Parties to adopt domestic legislation
necessary to implement said protection.
The Roerich Pact has also some drawbacks. Being a regional treaty Roerich Pact has no
influence over other regions.100 The text of the Pact fails to define the extent of the respect and
protection engendered by the neutrality. It also does not explicitly prohibit looting and pillaging.
Interestingly, this treaty does not refer to the principle of military necessity. This innovative treaty
established a precedent for a convention devoted entirely to the protection of cultural heritage.101 It
became a precursor to the Convention for the Protection of Cultural Property in the Event of Armed
Conflict, 1954.
C. SINCE 1954
1. The 1954 Hague Convention
The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
[hereinafter 1954 Hague Convention]102 was adopted103 in the backdrop of widespread and massive
States of America, and Venezuela.
Article 1 states:
The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be
considered as neutral and as such respected and protected by belligerents. The same respect and protection
shall be due to the personnel of the institutions mentioned above.
The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic,
educational and cultural institutions in time of peace as well as in war.
Roerich Pact, note 93, Article 1.
98 Roerich Pact, note 93, Article 5.
99 Ibid., Article 3.
100 Although some non-American countries, e.g. India shortly after gaining its independence in 1947,
made declarations supporting and adopting Roerich’s text.
101 Waldemar A. Solf (1992), “Cultural Property, Protection in Armed Conflict”, in R. Bernhardt (Ed.), Encyclopaedia
of Public International Law, Vol.1, Amsterdam: North Holland, p. 893.
102 Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249
UNTS 240, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/400?OpenDocument.
103 It was adopted on 14 may 1954 by an Intergovernmental Conference on the Protection of Cultural Property in
the Event of Armed Conflict, which was convened by UNESCO. The Conference met from 21 April to 14 may
1954 at The Hague and was attended by the representatives of 56 States. 37 States signed the Final Act of the
97
227
destruction, looting and pillage of European cultural heritage during the Second World War. The
explicit purpose of the 1954 Hague Convention was to prevent destruction and theft of cultural
material that have become common in modern warfare.104 The Convention, comprising 40 articles
(divided into 7 Chapters), constitutes the first international attempt to enunciate a comprehensive
legal framework to protect cultural property in the event of armed conflict.105 The adoption of this
Convention is important in the sense that it puts together all the provisions relating to the protection
of cultural property in a single instrument. It departed from the past practices wherein such provisions
were scattered among several legal instruments.106 It is important to highlight the characteristic
features of this Convention:
a.
Cultural Heritage as the Subject Matter of International Concern
The Convention is based on the notion that the preservation of the cultural heritage is not
only a matter of concern for the State on whose territory it is located but “is of great importance
for all peoples of the world. It is refreshing to note that this heritage should receive international
protection.”107 The concern for such protection thus transcends the borders of a single state. In fact it
becomes a matter of international importance. More significantly, the Convention further recognises
“that damage to cultural property belonging to any people whatsoever means damage to the cultural
heritage of all mankind, since each people makes its contribution to the culture of the world.”108 The
reference to “cultural heritage of mankind” emphasises the notion that cultural heritage belongs to
everyone. As a result, it sought to weaken or negate claims by nations to exclusively own and control
the disposition of such objects.109 John Merryman describes this innovation as “a charter for cultural
internationalism.”110
b.
First International Instrument to Define the Term “Cultural Property”
The 1954 Hague Convention is unique in that it is the first international instrument to define
the term “cultural property.”111 Cultural property covers both movable and immovable property. It
104
105
106
107
108
109
110
111
Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict and the
Convention for the Protection of Cultural Property in the Event of Armed Conflict. Convention entered into force
on 7 August 1956 and as of 15 August 2012, 125 States are Parties to it.
Joshua M. Zelig(2005),“Recovering Iraq’s Cultural Property: What can be done to Prevent Illicit
Trafficking”,Brooklyn Journal of International Law, 31(1): 289-323, p. 296.
Mark C. Driver (2000), “The Protection of Cultural Property during Wartime”, RECIEL, 9(1): 1-12, p. 4.
Jiri Toman (1996), The Protection of Cultural Property in the Event of Armed Conflict, Hants (UK): Dartmouth
and UNESCO Publishing, p. 24.
1954 Hague Convention, note 102, Preamble, paragraph 3.
Ibid.,Preamble, paragraph 2.
Patty Gerstenblith (2006), note 35, p. 260.
See John Henry Merryman (1986), “Two Ways of Thinking about Cultural Property”, The American Journal of
International Law, 80(4): 831-853, p. 837. In one of his later article Merryman explains the concept of “cultural
property internationalism” that it is “shorthand for the proposition that everyone has an interest in the preservation
and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives.”
See John Henry Merryman (2005), note 11, p. 11.
Article 1 of the 1954 Hague Convention defines “cultural property”. For the definition see Chapter I (pp. 16-17,
228
includes repositories of cultural property, such as museums, libraries and archives, as well as refuges
created specifically to shelter cultural property during hostilities. The term cultural property, as
defined in Article 1, however, does not include intangible cultural property.
c. Applicable to International,
Non-International Armed Conflicts and Occupation
The Convention is applicable to international as well as non-international armed conflicts.
It, however, does not provide a definition of non-international armed conflict, thus engendering a
potential loophole for the destruction of cultural heritage in civil conflicts. Similarly, the Convention
is also applicable to the cases of occupation. But it does not provide a definition of occupation, nor
does it clarify when a state of hostilities becomes an occupation.
d.
Two Tiers of Protection
The Convention provides two tiers of protection for cultural property: “general protection”
and “special protection.”
(i) General protection
It is the minimum protection provided for all cultural property which is of great importance
to the cultural heritage of the people. It means that general protection is available to those three
categories of objects which the definition of cultural property, as provided under Article 1 of the
Convention, covers.112 The choice of protected property, however, is left to the discretion of the States
on whose territory the cultural property is situated. Provisions pertaining to the general protection
have been dealt with in Chapter I, containing Articles 1 to 7 of the Convention.
(ii) Special Protection
In comparison to general protection, special protection is available to a limited
range of cultural property. For this, however, the threshold of protection is much higher. The cultural
Properties getting special protection also avail of general protection, as it is the minimum protection
for all cultural property. But reverse is not true.
note 43).
112 Article 1 of the 1954 Hague Convention defines “cultural property” as:
(a) movable or immovable property of great importance to the cultural heritage of every people, such as
monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of
buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and
other objects of artistic, historical or archaeological interest; as well as scientific collections and important
collections of books or archives or of reproductions of the property defined above;
(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined
in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended
to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);
(c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known
as “centres containing monuments.”
1954 Hague Convention, note 102, Article 1.
229
The 1954 Hague Convention (Chapter II, comprising Articles 8 to 11) regulates the concept
of “special protection”. It may be accorded to certain categories of cultural property under specific
conditions. Article 8(1) provides three categories of property that may be placed under special
protection: (1) limited number of refuges intended to shelter movable cultural property in the event of
armed conflict; (2) centres containing monuments; (3) other immovable cultural property. But these
three categories of cultural property benefit from special protection only when they are regarded as
being “of very great importance.”113These three categories of property “of very great importance”
may be placed under special protection only if the following two conditions are fulfilled: (1) the
protected property must be situated at an adequate distance from any large industrial centre or from
any important military objective constituting a vulnerable point, such as, an aerodrome, broadcasting
station, establishment engaged in work of national defence, a port or railway station of relative
importance or a main line of communication;114 (2) the protected property must not be used for
military purposes.115
It is also noteworthy that special protection is granted to cultural property by its entry in the
“International Register of Cultural Property under Special Protection”.116 The choice of the cultural
property to be entered in the International Register and hence to be granted the special protection
depends entirely on the decision of the High Contracting Party on whose territory this property is
situated. Such an entry, however, can only be made if the other Contracting States are not opposed to
it.
Two forms of immunities are, generally, accorded to cultural property that is placed under
special protection. The first immunity is that no acts of hostility shall be directed against such property
from the time of its entry into the International Register and second one is that such property and
its surroundings shall not be used for military purposes.117 It is the High Contracting Parties that
are under an obligation to ensure these immunities (Article 9). However, the immunities provided
to cultural property under special protection shall be withdrawn in two cases: (1) if one of the High
Contracting Parties violates the obligations under Article 9 (if it commits any act of hostility directed
against such property or makes any use of such property or its surroundings for military purposes),
113
114
115
116
117
See 1954 Hague Convention, note 102, Article 8(1). One can see the enhanced standard of qualification
for getting special protection in comparison to general protection. Cultural property must be of “great
importance” to be put under general protection [See 1954 Hague Convention, note 101, Article 1(a)], whereas it
must be of “very great importance” to be placed under special protection.
1954 Hague Convention, note 102, Article 8(1) (a). However, Article 8(2) provides that “a refuge for movable
cultural property may also be placed under special protection, whatever its location, if it is so constructed that,
in all probability, it will not be damaged by bombs.” 1954 Hague Convention, note 102, Article 8(2). Further, if
any cultural property is located near an important military objective it may nevertheless be placed under special
protection if the High Contracting Party asking for that protection undertakes, in the event of armed conflict, to
make no use of the objective in question. See 1954 Hague Convention, note 102, Article 8(5).
1954 Hague Convention, note 102, Article 8(1) (b).
Ibid., Article 8(6).International Register of Cultural Property under Special Protection is maintained
and administered by the Director-General of the United Nations Educational, Scientific and Cultural
Organization. See Article 12(2) of the Regulations for the Execution of the Convention.
230
the opposing Party shall (so long as this violation persists) be released from the obligation to ensure
the immunities of the property concerned;118 (2) in exceptional cases of “unavoidable military
necessity” for as long as that necessity continues.119
Interestingly, these provisions pertaining to special protection have rarely been used.120 It is
felt that this could be due to the stringent requirements and practical difficulties of registration.121
The wording of the Article 8 is such that it would not allow protection of museums and art galleries
of very great importance that happen to be located in city centres or close to major infrastructure.122
e.
General Protection
Occupation
of
Cultural Property
during
Peacetime, Armed Conflict
and
The Convention provides general protection123 to cultural property not only in the event of
armed conflict but also during peacetime as well as during occupation. Section 3 provides for the
protection of cultural property in the time of peace. It elaborates that State Parties are obligated to
safeguard cultural property located within their territory during peacetime from “the foreseeable
effects of an armed conflict.”124
In the event of an armed conflict, Section 4 provides for the protection of cultural property by
imposing various obligations on the State Parties.During an armed conflictState Parties are under
an obligation to show respect for cultural property situated within their own territory as well as
118 Ibid., Article 11(1).
119 Ibid., Article 11(2). This is one of the most controversial provisions of the Convention and is subject of very much
criticism. Driver argues that as a definition of “unavoidable military necessity” has not been provided within the
Convention so it is hard to imagine that military commanders will concede that there attacks were avoidable or
unnecessary in the aftermath of the destruction. See Mark C. Driver (2000), note 104, p. 5.
120 Only four refuges (one in Germany, three in Netherlands) and one centre containing monuments (whole Vatican City
State) have been designated on the “International Register of Cultural Property” under Article 8(6) and granted
special protection. See UNESCO (2008), International Register of Cultural Property under Special Protection
(UNESCO Doc. CLT/CIH/MCO/2008/PI/45), 1-7, available on the web, accessed on 30 July 2012, URL: http://
unesdoc.unesco.org/images/0015/001585/158587EB.pdf.
121 NeeruChadha (2001), “Protection of Cultural Property during Armed Conflict: Recent Developments”, ISIL
Yearbook of International Humanitarian and Refugee Law, 1: 219-229, p. 220. The mechanism for registration is
set out in the Articles 11-16 of the Regulations for the Execution of the Convention for the Protection of Cultural
Property in the Event of Armed Conflict.
122
Erika J. Techera (2007), “Protection of Cultural Heritage in Times of Armed Conflict: The International Legal
Framework Revisited”, Macquarie Journal of International and Comparative Environmental law, 4(1): 1-20, p.
8.
123 Article 2 of the Convention defines the “protection of cultural property” as consisting of two components: “the
safeguarding of and respect for such property.” See 1954 Hague Convention, note 55, Article 2. “Safeguarding”
refers to the actions a nation is expected to take during peacetime to protect its own cultural property, see 1954
Hague Convention, note 102, Article 3. Whereas, demonstrating “ respect” refers to the actions that a nation must
take during hostilities to protect both its own cultural property and the cultural property of another nation, see
124 See 1954 Hague Convention, note 102, Article 3.
231
within the territory of other State Parties. They are refrained from using such cultural property and
its immediate surroundings or the appliances in use for its protection for purposes which are likely
to expose it to destruction or damage.125 Moreover, State Parties are also refrained from any act
of hostility directed against such property.126The above mentioned obligations, however, “may be
waived only in cases where military necessity imperatively requires such a waiver.”127 Thus the
military necessity is the only exception to these obligations and can be used to justify the destruction
of cultural property otherwise protected by the Convention.128
The State Parties also have another important obligation in the event of armed conflict “to
prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and
any acts of vandalism directed against, cultural property. . . .”129 They are required to refrain from
any act directed by way of reprisals against cultural property.130 This is so even if one State Party has
failed to comply with Article 3 by not safeguarding its cultural property during peacetime [Article
4(5)]. It also does not mean that another State Party can evade its obligation under Article 4.
There are a set of obligations of a State Party during occupation (Article 5). It emphasises that
the primary responsibility for securing cultural property lies with the competent national authority
of the State that is being occupied. Thus the first obligation imposed on the occupying power is to
support these national authorities.131 However, the obligation of the occupying power to care for
and preserve the cultural property of the occupied territory is very limited. It applies only “as far as
possible” when the national authorities of the occupied territory are unable to meet their obligation
and the cultural property has been “damaged by military operations.”132 It seems this limitation on
the obligation to preserve cultural property to circumstances where the property was damaged during
hostilities is considered an attempt to protect such cultural property from undue interference by the
occupying power.133
126 Ibid.
128
For a detailed discussion on the military necessity provision under the 1954 Hague Convention, see Jiri Toman
(1996), note 106, pp. 72-79. See also Jan Hladík (1999), “The 1954 Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict and the Notion of military necessity”, International Review of
the Red Cross, 81 (835): 621–635. The inclusion of the military necessity waiver under the Convention has been
vehemently criticised by various scholars. Merryman regards this as an unfortunate concession to nationalism
in what he otherwise views as an essentially internationalist document. See John Henry Merryman (1986),note
64, p. 837. P. IshwaraBhat considers this as a serious deficiency in the Convention. See P. IshwaraBhat, note
32, p. 31.The main criticism is done on the ground that the Convention does not provide any definition of (or
even guidelines regarding) military necessity and for that reason its interpretation depends upon the discretion
of individual States. There is every possibility that Sates can use this excuse in defence of any damage caused to
cultural property.
129 1954 Hague Convention, note 102, Article 4(3). There is no military exception in relation to this provision.
131 1954 Hague Convention, note 102, Article 5(1).
133 See Patty Gerstenblith (2006),note 36,p. 264.
f. A Distinctive
232
Emblem to Identify Cultural Property
In order to facilitate the identification of cultural property (whether granted general protection
or special protection), the Convention provides that a distinctive blue and white triangular emblem is
to be prominently displayed on the exterior of the structure or within the perimeter of sites containing
cultural property.134
There are two forms in which the distinctive emblem (Article 17) can be used.135 The
distinctive emblem repeated three times may be used only as a means of identification of immovable
cultural property under special protection.136 It seems usage of the term ‘may’ in this context creates
an impression that the marking of cultural property under special protection with distinctive emblem
is optional one. However, this is partially true. Marking of culture property under special protection
with distinctive emblem is optional only in peacetime. It is, however, compulsory in periods of armed
conflict.137 The distinctive emblem could be used alone only as a means of identification of cultural
property not under special protection (i.e. property under the general protection arrangements).138
However, marking of culture property under general protection with distinctive emblem is optional
even in the case of armed conflict.139
g.
Enforcement and Sanction
The 1954 Hague Convention provides for possible penal action for violation of provisions
of the treaty. It states:
The High Contracting Parties undertake to take, within the framework of their ordinary
criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions
upon those persons, of whatever nationality, who commit or order to be committed a breach of the
135 For a detailed discussion on the use of the emblem under 1954 Hague Convention , see Jan Hladik (2004),
“Marking of cultural property with the distinctive emblem of the 1954 Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict”, International Review of the Red Cross, 86(854): 379-387.
136 1954 Hague Convention, note 101, Article 17(1). It further provides that the distinctive emblem repeated three
times may also be used for the identification of the transport of cultural property, under the conditions laid down
in Article 12 and 13 and of improvised refuges, under the conditions laid down in Article 11 of the Regulations
for the execution of the Convention.
137 Article 10 provides:
During an armed conflict, cultural property under special protection shall be marked with the distinctive emblem
described in Article 16, and shall be open to international control as provided for in the Regulations for
the execution of the Convention.
138 Ibid., Article 17(2). It further provides that the distinctive emblem may be used alone also for the identification
of the persons responsible for the duties of control in accordance with the Regulations for the execution of the
Convention, the personnel engaged in the protection of cultural property in accordance with Article 15 of the
Convention and the identity cards referred to in Article 21 of the Regulations for the execution of the Convention.
139 Article 6 provides:
In accordance with the provisions of Article 16, cultural property may bear a distinctive emblem so as to
facilitate its recognition. 1954 Hague Convention, note 102, Article 6.
233
present Convention.140
The above provision itself does not provide any punishment to those who violate the terms of
the Convention.141 It calls upon the State Parties to prosecute and impose penal sanctions on violators
by enacting appropriate domestic legislation. It is argued by some writers that such inconsistency in
implementation of domestic laws could result in a chaotic system where traffickers would prefer to
work in countries with more lenient legislation.142 It seems lack of universal jurisdiction for violations
of the Convention has in a way reduced this Convention as an ineffective one.143This provision has
proved to be an ineffective with regard to individual criminal responsibility mainly because it does
not list the violations which require a criminal sanction. Moreover, the Convention does not refer
to the responsibility of States for the destruction of cultural heritage at all. The Convention is also
silent on the matter of extradition measures for transgressors of the treaty. It is thus the responsibility
of the State Parties to take the necessary steps within their national criminal laws to prosecute those
persons accused of causing damage to cultural property in a third country.
In spite these apparent weaknesses, the 1954 Hague Convention can be said to be the most
valuable international instrument for the protection of cultural property in contemporary international
law. The deficiencies embedded into the Convention could hinder its proper implementation. The
fact that various cultural heritages have been destroyed during armed conflicts (since its adoption in
1954) shows inadequacy of this legal tool. To fill its loopholes and rectify inadequacies, the Second
Protocol to the 1954 Convention was adopted in 1999.
2.Protocol I to the 1954 Hague Convention, 1954
The Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 1954
[hereinafter Protocol I]144 was drafted145 concurrently with the Convention and focuses exclusively
on the movable cultural objects. The purpose of the Protocol I isto prevent the exportation of cultural
property from occupied territory and to provide for the restitution of illegally exported objects. A
significant objective of the Protocol is to prevent the looting and pillage of cultural property by
belligerents during armed conflicts146.
140 1954 Hague Convention, note 102, Article 28.
141 Whereas Article 3 of the Hague Convention (IV) requires States whose armed forces violate the Convention to pay
compensation. See Hague Convention (IV), note 86, Article 3.
142 Joshua M. Zelig (2005), note 104, pp. 297-298.
143 Boylan notes that the Contracting Parties were reluctant to create a precedent by developing any explicit international
criminal measures and that few have legislated within national law for specific criminal action in relation to
crimes against cultural property during wartime. Patrick J. Boylan (1993), Review of the Convention for the
Protection of Cultural Property in the Event of Armed Conflict (UNESCO Doc. CLT-93/WS/12) [hereinafter
Boylan Report (1993)], 1-232, p. 87, available on the web, accessed on 30 July 2012, URL: http://unesdoc.
unesco.org/images/0010/001001/100159eo.pdf.
144
Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249
UNTS 358, also available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/410?OpenDocument.
145 Protocol I was adopted on 14 may 1954 and came into force on 7 august 1956.
146 Mark C. Driver (2000), note 105, p. 6.
234
The Protocol has 15 paragraphs divided into 3 sections. Section I imposes certain obligations
on the State Parties to the Protocol. These are:
(1) to prevent the export of cultural property from a territory occupied by them;
(2) to take into custody all cultural property imported into their territories either directly or
indirectly from any occupied territory;
(3) to return at the end of hostilities all cultural property illegally removed from occupied
territory; and
(4) to indemnify the “good faith” holders of cultural property when such property is returned
to the territory previously occupied by them.
Section II of the Protocol requires that any cultural property deposited for protection within
the territory of another State Party must be returned following the cessation of hostilities to that State
Party from where it came. Section III of the Protocol, comprising paragraphs 6 to 15, covers the
procedural aspects.
This Protocol, however, could not garner much support and has proved to be ineffective. As
of 15 August 2012, only 101 States have ratified the Protocol, whereas the 1954 Hague Convention
has received 125 ratifications. There does not seem to be any incident of a Party to the Protocol taking
action under the Protocol to prohibit trade in cultural objects removed from the occupied territory.147
It seems some states have been reluctant to ratify the Protocol due to the provisions related to the
indemnity of good faith purchasers, as this provision may be contrary to the principles embodied
within their domestic legislation.148 One of the important reasons which may have contributed to its
unpopularity is that many States dislike the obligation to return movable cultural objects and other
obligations which seem to interfere in the operation of their art market. This could have been one of
the main reasons for the USA and the UK, which are the largest markets for illicit art trade, not being
Parties to the Protocol.
Similarly, Paragraph 9 of the Protocol makes it possible for a State to ratify the Protocol but
declare that it will not be bound by the provisions of either Section I or Section II. As the provisions
of Section I do not impose any burden on the market in cultural objects, a State could easily join
the Protocol while repudiating the obligations of Section I. Thus, it virtually renders the Protocol
ineffective.
3. The 1970 UNESCO Convention
The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and
Transfer of Ownership of Cultural Property [hereinafter 1970 UNESCO Convention] 149 was adopted
147 Boylan Report (1993), note 143, p. 95.
148 Mark C. Driver (2000),note 104, p. 7.
149 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of
235
by the General Conference of the UNESCO at its sixteenth session on 14 November 1970.150 The
basic purpose of this Convention is to stop illicit traffic in cultural property. The 1970 UNESCO
Convention seeks to protect only movable cultural property. It is applicable both in time of peace
and in time of war. The 1970 UNESCO Convention is a multilateral agreement which is indirectly
applied. Its Implementation depends upon the adoption of the domestic legislation enabling it by the
State Parties to the Convention.
The 1970 UNESCO Convention introduces a prohibition (Article 3), without drawing any
distinction between time of peace and time of war. It declares that “the import, export or transfer of
ownership of cultural property, affected contrary to the provisions adopted under this Convention by
the State Parties thereto, shall be illicit.” As a corollary if there is any transfer of cultural property
(in violation of the laws enacted by the country of origin to protect its cultural heritage) is illicit, it is
prohibited under the Convention.
The 1970 UNESCO Convention contains a special provision concerning occupation. Even
though the Convention is not restricted to occupation in time of war, it is particularly relevant in
periods of armed conflict. According to Article 11, “the export and transfer of ownership of cultural
property under compulsion arising directly or indirectly from the occupation of a country by a foreign
power shall be regarded as illicit.” Unlike Article 3, Article 11 defines the illicitness arising from the
fact of occupation without linking it with or referring to national law.
Article 11 of this 1970 Convention supplements Articles 1 to 4 of the Protocol I to the 1954
Hague Convention. It reinforces the undertaking of the State Parties to prevent the exportation of
cultural property from an occupied territory as far as the movable property (defined in Article 1 of
the 1970 UNESCO Convention) is concerned. Article 1 of the Protocol I prevents the exportation
of cultural property from a territory occupied by the occupying power, whereas under the 1970
UNESCO Convention the prohibition on export does not concern just the territories occupied by the
occupying power, but is addressed to all the State Parties to the Convention. As compared to Article
1 of the Protocol I, Article 11 of the present Convention concerns not just the export but any transfer
of ownership of cultural property under compulsion. The prohibition on import under Article 1 of the
Protocol I is restricted to periods of armed conflict, whereas the occupation referred to in Article 11
may take place even outside the context of an armed conflict.151
150
151
Cultural Property, 14 November 1970, 823 UNTS 231, reprinted in 10 ILM 289 (1971), also available [Online: web],
URL: http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.
The 1970 Convention entered into force on 24 April 1972 and as of 15 August 2012, 122 States are parties to this
Convention.
The 1954 Hague Convention and 1970 UNESCO Convention overlap at times, particularly at the conclusion of
an armed conflict. explaining the relationship between the two conventions Andrea Cunning states:
The UNESCO Convention is complimentary to the 1954 Hague Convention in that the two documents
work together to protect cultural property in time of peace and in the event of armed conflict. Often
the two agreements overlap due to the fact that most claims for repatriation of cultural property are
brought in times of peace at the conclusion of an armed conflict and many countries that have not
provided implementing legislation for the 1954 Hague Convention may have implemented the UNESCO
Convention regarding the return of stolen cultural property.
236
4. The 1972 World Heritage Convention
The Convention for the Protection of the World Cultural and Natural Heritage [hereinafter
1972 World Heritage Convention]152 was adopted on 16 November 1972 by the UNESCO General
Conference at its seventeenth session.153 The Convention aims to protect cultural and natural heritage
of outstanding universal value. The 1972 World Heritage Convention defines the term “cultural
heritage”. The said definition covers only immovable cultural heritage in its ambit.154
The 1972 Convention did not establish measures specifically designed for the protection of
cultural heritage in the situations of armed conflicts. Still, two of the provisions of the Convention
are pertinent in this regard. They are Articles 6(3) and 11(4). Article 6(3) makes it obligatory on the
part of the State Parties to the Convention:
Not to take any deliberate measures which might damage directly or indirectly the
cultural . . . heritage referred to in Articles 1 and 2 situated on the territory of other
States Parties to this Convention.155
Article 11(4) of the Convention provides that the Intergovernmental Committee for the
Protection of the World Cultural and Natural Heritage [hereinafter World Heritage Committee]156 :
Shall establish, keep up to date and publish, whenever circumstances shall so require,
under the title of List of World Heritage in Danger, a list of the property appearing in
the World Heritage List for the conservation of which major operations are necessary
152
153
154
155
156
See Andrea Cunning (2003), “TheSafeguarding of Cultural Property in Times of War and Peace”, Tulsa Journal
of Comparative and International Law, 11(1): 211-241, p. 226.
Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151,
reprinted in 11 ILM 1358 (1972), also available on the web, URL: http://whc.unesco.org/archive/convention-en.
pdf.
The 1972 WorldHeritage Convention entered into force on 16 December 1975 and as of 08 March 2012, 189
States are parties to this Convention.
Article 1 of the 1972 World Heritage Convention defines “cultural heritage” as:
 monuments: architectural works, works of monumental sculpture and painting, elements or structures
of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of
outstanding universal value from the point of view of history, art or science;
 groups of buildings: groups of separate or connected buildings which, because of their architecture, their
homogeneity or their place in the landscape, are of outstanding universal value from the point of view of
history, art or science;
 sites: works of man or the combined works of nature and of man, and areas including archaeological sites
which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological
points of view.
1972 World Heritage Convention, note 151, Article 1.
1972 World Heritage Convention, note 151, Article 6(3).
Section III (Articles 8-14) deals with structure and functions of the World Heritage Committee. The World Heritage
Committee meets once a year, and consists of representatives from 21 of the States Parties to the Convention
elected by their General Assembly.
237
and for which assistance has been requested under this Convention.157
The list shall contain an estimate of the cost of such operations. Article 11(4) further provides
that the list may include only such property forming part of the cultural heritage as is threatened by
serious and specific dangers. It mentions “the outbreak or the threat of an armed conflict” as one of
the danger.
The 1972 World Heritage Convention has played a significant role in safeguarding World
Heritage sites that have often been the target of military action, looters and poachers in the lawless
situations created by conflicts. The legal instruments discussed earlier have the specific task of
preventing and limiting damage to cultural and natural heritage in cases of conflicts, the World Heritage
Convention has to deal with the complex tasks of supporting the reconstruction and reorganization of
management capacities. A relevant case has been the World Heritage Site of Angkor (Cambodia). It
was simultaneously inscribed on the World Heritage List and the List of World Heritage in Danger in
1992. The site was threatened by looters both during and after the conflict that ravaged the country
in the 1970s and 1980s. It gradually returned to normal as a result of a UNESCO led International
Safeguarding Campaign and was taken off the Danger List in 2004.158
5. The Additional ProtocolI, 1977
The 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts (Protocol I) [hereinafter Additional
Protocol I]159 was adopted160 at the Diplomatic Conference on the Reaffirmation and Development
of International Humanitarian Law applicable in Armed Conflicts (1974-1977).161 This Protocol
contains a provision concerning the protection of cultural heritage. Article 53, which is devoted to
the “protection of cultural objects and of places of worship”, asserts:
Without prejudice to the provisions of the Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant
international instruments, it is prohibited:
157 1972 World Heritage Convention, note 52, Article 11(4).
158 UNESCO (2007), World Heritage - Challenges for the Millennium, Paris: UNESCO World Heritage Centre,
1-200, p. 19, available on the web, accessed on 31July 2012, URL: http://whc.unesco.org/documents/publi_
millennium_en.pdf.
159 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (1979), reprinted in 16 ILM 1391(1977), also available
[Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.
160
Protocol was Adopted on 8 June 1977 and entered into force on 7 December 1978. As of 15 August
2012, 172 States are parties to this Protocol.
161
This Conference was convened by the International Committee of the Red Cross, following the Biafran
and Vietnam wars, to review and update the four 1949 Geneva Conventions. Mary Ellen O’Connell (2004),
“Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property”, Centre for Law,
Policy and Social Science Working Paper Series No. 16, 1-32, p. 14, available on the web, accessed on 31 July
2012, URL: http://ssrn.com/abstract=583122. Meetings of Conference held in Geneva from 20 February 1974 to
10 June 1977 in four different sessions.
238
(a) to commit any acts of hostility directed against the historic monuments, works of art or
places of worship which constitute the cultural or spiritual heritage of peoples;
(b)
to use such objects in support of the military effort;
(c)
to make such objects the object of reprisals.162
Furthermore, Article 85 of the Additional Protocol I also treats certain kinds of destruction
of cultural heritage as a grave breach163 of the Protocol, and hence a war crime.164
6. The Additional Protocol II, 1977
The 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II) [hereinafter
Additional Protocol II]165 was also adopted166 at the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law applicable in Armed Conflicts (1974-1977). This
Protocol also contains an article relating to the protection of cultural heritage. Article 16, entitled as
“protection of cultural objects and of places of worship”, provides:
Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, it is prohibited to commit any acts
of hostility directed against historic monuments, works of art or places of worship which
constitute the cultural or spiritual heritage of peoples, and to use them in support of the
military effort.
162
Additional Protocol I, note 159, Article 53. Here it is important to note that the four 1949 Geneva Conventions
have no exclusive provision relating to protection of cultural heritage.
163
Article 85(4) (d) states:
(4)
. . . The following shall be regarded as grave breaches of this Protocol, when committed wilfully and in
violation of the Conventions or the Protocol:
(d) making the clearly-recognized historic monuments, works of art or places of worship which constitute
the cultural or spiritual heritage of peoples and to which special protection has been given by special
arrangement, . . . the object of attack, causing as a result extensive destruction thereof, where there is no
evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic
monuments, works of art and places of worship are not located in the immediate proximity of military
objectives.
Additional Protocol I, note 159, Article 85(4) (d).
164 Article 85(5) states:
Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these
instruments shall be regarded as war crimes.
Additional Protocol I, note 159, Article 85(5).
165 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of
Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (1979), reprinted in 16 ILM 1442 (1977), also
available [Online: web], URL: http://www.icrc.org/ihl.nsf/FULL/475?OpenDocument.
166 Protocol
was adopted on 8 June 1977 and entered into force on 7 December 1978. As of 15 August
2012, 166 States are parties to this Protocol.
239
The obligations under Article 53 of the Additional Protocol I and Article 16 of the Additional
Protocol II are stricter than that of the Hague Convention, since they do not provide for any derogation
even “where military necessity imperatively requires such a waiver.”167 Moreover, as long as the
object concerned is not used in support of the military effort or made into a military object by
those in control, these obligations continue.168 However, both the Articles state that the provisions
contained therein are “without prejudice” to the provisions of the Hague Convention. As such the
Parties to the Hague Convention can justify an attack on cultural heritage under the guise of military
necessity, whereas States only party to the Additional Protocol I and II cannot do so. They must
observe obligations enshrined in Articles 53 and 16 in all circumstances.
Both the Protocols, however, are an important advancement in the protection of cultural
heritage as they place obligations on the attacker rather than the attacked. In circumstances where
the defender put no measures in place to protect its own cultural heritage the attacker must still take
steps to avoid such damage. This is particularly relevant where a defender attempts to use cultural
heritage as a shield against attack. The protocols, however, contain a glaring lacuna as they leave the
term “military effort” undefined and parties to an armed conflict are free to interpret it to their own
advantage.169
7. Protocol II to the 1954 Hague Convention, 1999
As earlier, the 1954 Hague Convention has various deficiencies. It could not stop the loss of
various cultural heritages in the course of many conflicts that took place since its adoption. It was the
destruction of cultural heritage during the Second Gulf War and the war in the former Yugoslavia in
the early nineties brought those deficiencies in the implementation of the Hague Convention to the
forefront.
In the backdrop of such wilful neglect and violation, in 1991, UNESCO and the Netherlands
jointly commissioned and funded “a review of the objectives and operation of the Convention and
Protocol with a view to identifying measures for improving its application and effectiveness and
to see whether some revision of the Convention itself might be needed, perhaps by means of an
Additional Protocol.”170 Such a comprehensive review was done by Professor Patrick J. Boylan.
This review was published in 1993 and became famous as Boylan Report.171 Subsequently, based
167
168
169
170
171
See 1954 Hague Convention, note 102, Article 4(2).
Mary Ellen O’Connell (2004), note 161, p. 15. See also Jiri Toman (1996),note105, p. 389.
Frits Kalshoven (2005), “The Protection of Cultural Property in the Event of Armed Conflict within the
Framework of International Humanitarian Law”, Museum International, 57(4): 61-70, p. 63.
Boylan Report (1993), note 143, p. 19.
See generally, Boylan Report (1993), note 143. Professor Patrick Boylan, the then Vice-Chairperson of
International Council of Museums (ICOM), analysed the implementation of the Convention since 1954 and
proposed practical steps for its improvement. The study, published in English and French by UNESCO in 1993
and widely distributed, contained a number of recommendations addressed to UNESCO, to the United Nations, to
States Parties, as well as to non- Parties to the Convention and to the non-governmental organizations concerned.
Those recommendations included various practical measures such as changes in national legislation, preventive
measures to be taken in peacetime and dissemination of the provisions of the Convention within armed forces as
240
on the findings of the Boylan Report, a Draft Protocol was developed known as the “Lauswolt
document.”172 It was this “Lauswolt document” that became what we know today as the Second
Protocol (1999) to the Hague Convention of 1954 for the Protection of Cultural Property in the Event
of Armed Conflict [hereinafter Protocol II].173
The adoption of the Second Protocol does not in any way reduce the importance of the
Hague Convention itself, which continues to be the basis for the protection of cultural heritage. It
complements the Hague Convention rather than replacing it. The adoption of the Second Protocol has
created two levels of protection for the cultural heritage: the basic level under the Hague Convention
for its States Parties and the higher level of protection under the Second Protocol for its States
Parties. The Second Protocol elaborates the goals of the Hague Convention and makes attempt to
improve the protective regime established under the Hague Convention. Some of the improvements
made by the Second Protocol can be placed under the following heads:
a.
Grant of Enhanced Protection
Under the Second Protocol the “special protection” regime provided under the 1954 Hague
Convention has been replaced by the “enhanced protection”. The system of special protection has had
very limited success because of too many restrictive conditions for granting it as well as requirement
for technical registration procedure. Thus the Second Protocol introduces a new form of “enhanced
protection” for cultural property.174 The Second Protocol also provides for the granting of enhanced
protection to cultural property that meets the following three criteria:
(1) it is cultural heritage of the greatest importance for humanity;
(2) it is protected by adequate domestic legal and administrative measures recognising its
exceptional cultural and historic value and ensuring the highest level of protection;
(3) it is not used for military purposes or to shield military sites and a declaration has been
made by the Party which has control over the cultural property, confirming that it will not
be so used.175
172
173
174
175
well as new provisions to adjust to developments which had occurred since 1954.
“Lauswolt document”, named after the Dutch town where it was drafted, was the result of the three expert
meetings, which were held after the submission of Professor Boylan’s Report.
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict, The Hague, 26 March 1999, 38 ILM 769 (1999), also available [Online: web], URL: http://www.icrc.
org/ihl.nsf/FULL/590?OpenDocument. In accordance with the terms of its Article 43(1), the Protocol entered
into force on 9 March 2004. Article 43(1) states that the Protocol “shall enter into force three months after twenty
instruments of ratification, acceptance, approval or accession have been deposited.” See Protocol II, note 137,
Article 43(1). The twentieth instrument of ratification or accession was deposited by Costa Rica on 9 December
2003. As of 15 August, 62 States are parties to the Protocol II. .
Second Protocol maintains the same definition of cultural property to that set out in Article 1 of the 1954 Hague
Convention. See Protocol II, note 172, Article 1(b).
Protocol II, note 172, Article 10.
241
It appears that the system of enhanced protection contained in the Second Protocol removes
the geographical restrictions of the 1954 Hague Convention by allowing for protection of cultural
property located near industrial centres. Article 11 lists out the procedure for grant of enhanced
protection. Each Party is required to submit to the Committee for the Protection of Cultural Property
in the Event of Armed Conflict176 a list of cultural property for which it intends to request the granting
of enhanced protection.177The Party which has jurisdiction or control over the cultural property
may request to the Committee that it be included in the List of Cultural Property under Enhanced
Protection.178Other parties and NGOs with relevant expertise may also recommend to the Committee
to include specific cultural property under enhanced protection. In such cases, the Committee may
invite a Party to request inclusion of such cultural property in the list.179The Committee is required to
inform all the Parties about the requests for inclusion of a specific cultural property in the list. Parties
may submit representations regarding such a request within sixty days. The decision for inclusion
in the list would be taken by the Committee by a majority of four-fifths of the members present
and voting.180A decision to grant or deny enhanced protection may only be made on the basis of the
three criteria mentioned in Article 10. In addition, objections against such grant shall be specific and
related to facts181. Thus it provides an improvement over the shortcomings of the previous system.
The Protocol also provides for grant of a provisional enhanced protection on an emergency basis
upon the outbreak of hostilities and at the request of a Party to the conflict.182
The obligation to ensure the immunity of a cultural property under enhanced protection is
placed both on the attacker and the attacked. As per Article 12 the parties to a conflict are required,
as appropriate, to refrain from making such property the objective of attack or from any use of such
property or its immediate surroundings in support of military action. The Cultural property placed
under enhanced protection could lose protection of it, if it becomes a military objective or such
protection is cancelled or suspended in accordance with provisions of Article 14.183
b.
Military Necessity
The provision relating to the military necessity was one of the chief reasons behind the
failure of 1954 Hague Convention. This was so because it has had no definition and even guidelines
176
177
178
179
180
181
182
183
Article 24 of the Protocol establishes a Committee for the Protection of Cultural Property in the Event of Armed
Conflict which has been given the responsibility under the Protocol to grant enhanced protection for cultural
property. It has been also assigned with the responsibility to maintain a list of cultural property under enhanced
protection. See Protocol II, note 172, Articles 24 and 27(1) (b).
Protocol II, note 173, Article 11(1).
Ibid., Article 11(2).
Ibid., Article 11(5). Enhanced protection shall be granted to cultural property from the moment of its entry in the
List. See Protocol II, note 172, Article 11(10).
Ibid., Articles 11(5) and 11(7).
Ibid., Article 13(1). The committee may suspend or cancel the enhanced protection status of a cultural property if
it no longer meets any one of the criteria in Article 10 or in case of serious violation of Article 12 by using such
property in support of military action. See Protocol II, note 172, Articles 14(1) and 14(2).
242
with regard to military necessity exception. The Second Protocol could not succeed in complete
renunciation of the military necessity exception as recommended in the Boylan Report.184 Still, the
Second Protocol did succeed in limiting the scope of military necessity doctrine by defining the
concept as well as by outlining the circumstances under which this concept can be invoked to attack
a cultural property.
In fact the Second Protocol linked the concept of military necessity with the concept of
“military objective” as it was felt that cultural property loses its protection from the moment it
becomes a military objective. The Protocol defines military objective as:
An object which by its nature, location, purpose, or use makes an effective contribution
to military action and whose total or partial destruction, capture or neutralisation, in the
circumstances ruling at the time, offers a definite military advantage.”185
The Second Protocol limits acts of hostility against cultural property to only a situation
where it becomes a military objective. There appears, however, a slight difference in provisions
regarding the conditions under which the defence of military necessity can be invoked against
“cultural property with general protection” and “cultural property under enhanced protection.”
(i) Cultural Property under General Protection
An act of hostility against a cultural property could be permitted only if that cultural property
becomes a military objective and no feasible alternative is available to obtain a similar military
advantage to that offered by directing an act of hostility against that objective.186 A waiver to “use”
cultural property for purposes which are likely to expose it to destruction or damage on the ground
of imperative military necessity can only be invoked when and so long as no choice is available
between such use of cultural property and another feasible method for obtaining a similar military
advantage.187 The Protocol also lays down two safeguards which are required to be followed. Firstly
an officer commanding a force equivalent to a battalion must decide to invoke any such military
necessity and a warning must be given in advance where circumstances permit.188
(ii)Cultural Property under Enhanced Protection
The Cultural property under enhanced protectionloses its protection if it has, by its use,
become a military objective.189 In this circumstance such property can be made the object of attack
when it is the only feasible means of terminating the impugned use of the property. In this exercise
judicious use of all feasible precautions are taken as to the means and methods of attack with a
184 Boylan Report (1993), note 142, pp. 17 and 54.
185 Protocol II, note 137, Article 1(f). The definition of military objective has been adopted from Article 52(2) of the
Additional Protocol I (1977); see Additional Protocol I, note 158, Article 52(2).
186 Protocol II, note 172, Article 6(a).
187 Ibid., Article 6(b).
188 Ibid., Articles 6(c) and 6(d).
189 Ibid., Article 13(1) (b).
243
view to terminate such use and avoiding or minimizing damage to the cultural property; or due to
requirement of immediate self-defence.190 At the operational level, however, such an attack is to be
ordered at the highest level of command; giving of effective advance warning requiring termination
of the impugned use and after giving reasonable time to redress the situation. In cases where a
cultural property under enhanced protection is used in support of military action, the committee
could suspend its enhanced protection status.
c.
Penal and Administrative Sanctions
It is the ‘sanction’ as one of the main areas in which the Second Protocol clarifies, develops
and improves upon the 1954 Hague Convention. The Chapter 4 of the Protocol, entitled “Criminal
responsibility and jurisdiction” (comprising Articles 15 to 21), that is considered to be the most
substantial innovation of the Second Protocol.
The Provision relating to sanctions (i.e. Article 28) under the Hague Convention remained
a dead letter, mainly because of two reasons. Firstly it does not provide for universal jurisdiction to
try offences committed under the Convention191 and secondly it does not list the violations which
require a criminal sanction. To remedy these lacunae, Article 15 of the Protocol lists five acts which
constitute serious violations of the Protocol requiring a criminal sanction if committed intentionally
and in violation of the 1954 Convention or the Second Protocol:
(1) making cultural property under enhanced protection the object of attack;
(2) using cultural property under enhanced protection or its immediate surroundings in
support of military action;
(3) extensive destruction or appropriation of cultural property protected under the Convention
and this Protocol;
(4) making cultural property protected under the Convention and this Protocol the object of
attack;
(5) theft, pillage or misappropriation of, or acts of vandalism directed against cultural
property protected under the Convention.192
In respect of all the serious violations of the Protocol, the Parties are required to establish
these as criminal offences under its domestic law and to make such offences punishable with
appropriate penalties.193 In such cases, the offences come under the jurisdiction of the State in
which they were committed or the State of which the alleged offender is a national.194 In the case
191 Under the concept of universal jurisdiction a State Party can establish its jurisdiction over a war crime on the basis
of nationality, territoriality or presence of the accused in its territory.
194 Ibid., Articles 16(1) (a) and (1) (b).
244
of the first three offences, the States also have jurisdiction when the alleged offender is present on
their territory.195 The Protocol in this context establishes universal jurisdiction with regard to them.
However, the Protocol clearly indicates that the nationals of States which are not party thereto do
not incur individual criminal responsibility by virtue of the Protocol, and that the Protocol does not
impose an obligation to establish jurisdiction over such persons.196 The States are also required to
prosecute or extradite any person accused of committing offences having universal jurisdiction.197
There also exist general obligations with regard to mutual legal assistance, including, for example,
assistance in connection with investigations, extradition or the obtaining of evidence.198
In addition to the penal sanctions for which provision is made in the Convention, the
Parties to the Second Protocol are under an obligation to adopt the necessary measures (legislative,
administrative or disciplinary) as may be necessary to suppress the following acts when they are
committed intentionally:
(1) any use of cultural property in violation of the Convention or the Protocol;
(2) any illicit export, other removal or transfer of ownership of cultural property from
occupied territory in violation of the Convention or the Protocol.199
d.
Non-International Armed Conflicts
The Second Protocol applies equally to international and non-international armed conflicts.200
This is especially required as the most modern armed conflicts are non-international. One of the
important benefits of this application is that the provisions relating to serious violations of the
Protocol as well as invoking universal jurisdiction also extend to non-international armed conflicts.
The Protocol, however, specifies that it is not applicable “to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”201
This provision clarifies the 1954 Hague Convention.
e. Institutional
Mechanism
The Second Protocol makes provision for two new institutions, the Committee for the
Protection of Cultural Property in the Event of Armed Conflict and the Fund for the Protection of
Cultural Property in the Event of Armed Conflict.
Ibid., Article 16(1) (c).
Ibid., Article 16(2) (b).
Ibid., Article 18.
Ibid., Article 19.
Ibid., Article 21.
See Protocol II, note 172, Articles 3(1) and 22(1). Article 3(1) provides that the “Protocol shall apply in situations
referred to in Article 18 paragraphs 1 and 2 of the Convention [ that means situations of international armed
conflicts and occupation] and in Article 22 paragraph 1.” Article 22(1) states that the “Protocol shall apply in the
event of an armed conflict not of an international character, occurring within the territory of one of the Parties.”
201
Protocol II, note 172, Article 22(2).
195
196
197
198
199
200
245
Article 24 of the Protocol establishes a Committee for the Protection of Cultural Property
in the Event of Armed Conflict. The Committee has been assigned with the responsibilities, under
Article 27(1), to:
(1) develop Guidelines for the implementation of the Protocol;
(2) grant, suspend or cancel enhanced protection for cultural property;
(5) establish, maintain and promote the List of Cultural Property under Enhanced Protection;
(3) monitor and supervise the implementation of the Protocol and promote the identification
of cultural property under enhanced protection;
(4) consider and comment on the reports on the implementation of the Protocol submitted
to it by the Parties every four years;
(5) submit a report of its activities to the Meeting of the Parties 202
The functions of this Committee are to be performed in cooperation with the Director General
of UNESCO.203The Committee could invite to its meetings (in an advisory capacity) representatives
of eminent professional organizations such as the International Committee of the Blue Shield (ICBS),
the International Centre for the Study of the Preservation and Restoration of Cultural Property
(ICCROM) and of the International Committee of the Red Cross (ICRC).204 This is an important
innovation under the Protocol as it establishes a clear role for relevant civil society organizations that
work in the field. The Committee, as an inter-governmental institutional mechanism, is the first one
to be created under any international humanitarian law instrument. As such it represents a major step
forward in ensuring protection for cultural heritage.205
The Protocol establishes (Article 29) a Fund for the Protection of Cultural Property in the
Event of Armed Conflict. The Fund is a trust fund.206 The Fund is used only for such purposes as
the Committee for the Protection of Cultural Property in the Event of Armed Conflict decides in
accordance with the guidelines provided by the Meeting of the Parties.207 This mechanism facilitates
granting of financial or other assistance primarily in support of:
(1) preparatory or other measures to be taken in peacetime; and
202
203
204
205
206
207
Apart from these functions the Committee may, at the request of a State Party to the Protocol, provide international
assistance for cultural property under enhanced protection, and assistance with respect to the preparation,
development or implementation of the laws, administrative provisions and measures for the enhanced protection
of cultural property. See Protocol II, note 172, Articles 27(1) (e) and 32.
Protocol II, note 172, Articles 27(2).
NeeruChadha, note 120, p. 228.
Protocol II, note 172, Articles 29(2).
Ibid., Articles 29(3), 23(3) (c) and 27(1) (f).
246
(2) emergency, provisional or other measures to be taken in order to protect cultural property
during periods of armed conflict or of immediate recovery after the end of hostilities.208
The Fund has enormous potential to combat the destruction of cultural heritage especially
because many poor nations that lack the financial resources to protect their cultural property can
draw upon the fund established by the Second Protocol.209
Thus, it can be said that the adoption of the Second Protocol is an important step forward in
the legal protection of cultural property in armed conflict. The Protocol addresses the weaknesses of
the 1954 Convention and improves upon it.
8. The 2003 UNESCO Declaration
In a landmark development in 2003, the UNESCO Declaration Concerning the Intentional
Destruction of Cultural Heritage [hereinafter 2003 UNESCO Declaration]210was unanimously
adopted by the UNESCO General Conference211 at its 32nd session212 as Resolution 33 (32 C/
Resolution 33)213in response to the increasing number of cases of intentional destruction of cultural
heritage. The tragic destruction of the BamiyanBuddhas in Afghanistan (March 2001) triggered the
formulation of this Declaration.
It appears that a declaration is not per se an internationally legally binding instrument
and does not directly create rights and legal obligations for States. The moral significance of this
Declaration is nevertheless undeniable. Its unanimous adoption by UNESCO Member States, which
represent an overwhelming majority of the international community,214 adds to its weight and reflects
the attitude and concern of the world community.
The Declaration has been divided into 10 sections. It begins by recognizing the importance of
cultural heritage and the commitment of UNESCO Member States to stop the intentional destruction
of cultural heritage in all its forms to ensure that it may be passed on to future generations.215
Significantly, it covers all types of intentional destruction whether committed in times of peace,
208
209 Andrea Cunning (2003), note 150, p. 237.
210 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, 17 October 2003,
available [Online: web] Accessed on 01 August 2012, URL: http://portal.unesco.org/en/
ev.php-URL_
ID=17718&URL_DO=DO_TOPIC&URL_SECTION=201.html. For detailed discussion on this Declaration, see
Jan Hladik (2004), “The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage”, Art,
Antiquity and Law, 9(3): 215–36.
211 General Conference is the supreme governing body of the UNESCO. It meets in ordinary session once in two
years to determine the policies and main lines of work of the Organization and is composed of representatives of
the Member States.
212
32nd session held in Paris from 29 September to 17 October 2003.
213
Resolution was adopted at the 21st plenary meeting, on 17 October 2003.
214 As of 15 August 2012 UNESCO has 195 Member States and 8 Associate Members. Associate Members are
Aruba, British Virgin Islands, Cayman Islands, Macao(China), Netherlands Antilles, and Tokelau.
215
2003 UNESCO Declaration, note 209, Section I.
247
occupation or armed conflict. In fact the States are called upon to adopt various measures including
legislative, technical, administrative and educational ones to counter intentional destruction of such
cultural heritage.216 The Declaration urges Member States to become parties to the 1954 Hague
Convention and its two Protocols and the Additional Protocols I and II to the four 1949 Geneva
Conventions.217
The Declaration calls upon the States during peacetime, to comply with the principles and
objectives enshrined in the 1972 World Heritage Convention as well as in certain other international
recommendations regarding the protection of cultural heritage.218 In the event of an armed conflict
and occupation, States are called upon to comply with the international customary law and the
principles and objectives of international agreements, and UNESCO recommendations concerning
the protection of cultural heritage during hostilities.219 It is important to note that the Declaration
mentions both types of armed conflicts - international and non-international.
It is noteworthy that the Declaration mentions both types of armed conflicts - international and
non-international. They are the cornerstone of the Declaration. Section VI fixes state responsibility
for the intentional destruction of cultural heritage if a State intentionally destroys or intentionally
fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of
cultural heritage of great importance for humanity. In the same vein, Section VII refers to individual
criminal responsibility and underscores the need for States to establish their jurisdiction over and to
provide for effective sanctions against persons who have committed or given the order to commit
acts of destruction. The scope of application of these two sections differs (rationaemateriae) from
the other provisions in the Declaration in the sense that they are only concerned with cultural heritage
of great importance for humanity.
The Declaration also stresses the need for States to engage in international cooperation for
the protection of cultural heritage from intentional destruction. The package for this response could
comprise various means such as information exchange, consultation, awareness raising measures
for the general public and capacity building for the prevention and repression of any intentional
destruction of cultural heritage. It also lays emphasis on legal and administrative cooperation.220The
States are expected to respect international humanitarian law and international human rights
standards.221 Finally, Section X requires the States to ensure the widest possible dissemination of the
Declaration to the general public and to target groups by using appropriate measures.
Conclusion
From the above discussion it becomes clear that the world community is conscious about
the deleterious effects of armed conflicts on the cultural heritage of mankind. Keeping in mind the
216
217
218
219
220
221
Ibid., Section III (2).
Ibid., Section III (4).
Ibid., Section IV.
Ibid., Section V.
Ibid., Section VIII.
Ibid., Section IX.
248
devastating consequences of armed conflicts, it has taken various legal measures to protect cultural
heritage. The adoption of various international instruments pertaining to the protection of cultural
heritage during armed conflicts reflects the growing consensus in favour of prevention of cultural
heritage destruction.
Apart from the conventional international law, which protects cultural heritage during armed
conflicts, there exists a customary international law222 prohibiting deliberate destruction of cultural
heritage of significant importance for humanity. The consistent and unambiguous practice, which
is demonstrated by the developments in international law subsequent to the Hague Conventions
on the laws and Customs of War, clearly establishes the material element of this custom. The 1954
Hague Convention and its two Protocols; the Additional Protocol I and II of 1977 to the Geneva
Conventions of 1949; and 2003 UNESCO Declaration Concerning the Intentional Destruction of
Cultural Heritage clearly prohibit the deliberate destruction of cultural heritage. The opinion juris of
the custom prohibiting deliberate destruction of cultural heritage can be deduced from the fact that
international community accepts cultural heritage as common heritage of mankind. It recognises
that there is a global public interest in the protection, preservation and transmission of the cultural
heritage for future generations.
Thus, in the end it could be concluded that the international legal framework for the
protection of cultural heritage during armed conflict is reasonably comprehensive and flexible
enough to accommodate challenges of the day. International law relating to cultural heritage
considers the destruction of any nation’s cultural heritage as a loss and an injury to the collective
heritage of humankind’s civilisation. The duty not to destroy cultural heritage could be considered as
a manifestation of an ergaomnes obligation.
However, a few suggestions could be made to strengthen and make effective the international
legal framework dealing with protection of cultural heritage during armed conflicts. They are as
follows:
1. All the State Parties should make laws at the domestic level to implement the 1954 Hague
Convention and it’s both the Protocols. The national legislation must include a provision
penalising offences against cultural property, as required by the 1954 Hague Convention and
its Second Protocol.
2. The provisions relating to the waiver based on military necessity should be omitted from the
1954 Hague Convention and the Second Protocol.
3. The 1954 Hague Convention could be amended to impose an obligation on State Parties
to the Convention to restrain the local population from acts of vandalism, looting and
misappropriation of cultural property. Three specific steps need to be prescribed to
222 Article 38 (1) (b) of the Statute of the International Court of Justice defines customary international law as “a
general practice accepted as law.” See Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993.
To prove that a rule has acquired the status of customary international law one has to establish two elements: (i)
that the rule has become a part of world’s States practice (material element or usus); and (ii) a belief on the part
of world’s States that such practice is required, prohibited or allowed as a matter of law (psychological element
or opinion jurissive necessitates).
249
accomplish this goal:
a)
Firstly, a State Party should undertake efforts to the extent feasible under the
conditions of active conflict to protect cultural sites and monuments from threats of
pillage, vandalism and looting, regardless of who the actors are.
b)
Secondly, the obligation to protect cultural sites and monuments from threats of
pillage, vandalism and looting should continue even in situations that are neither active
hostilities nor formal occupations.
c)
This obligation should be explicitly extended to occupations. The 1954 Hague
Convention needs to clarify that the occupying power has an obligation to prevent looting
and vandalism of cultural sites and institutions not just by its own forces but also by the
local population.
4. The provisions of the 1954 Hague Convention and the Second Protocol should be amended to
enhance the role of occupying power with regard to the preservation of the cultural heritage
of occupied territory. Two things are necessary in this regard:
a)
Firstly, the occupying power should be permitted to preserve cultural heritage
without regard to how or why it was damaged.
b)
Secondly, the occupying power should not only be permitted to take steps to
preserve and stabilize cultural sites and monuments, but the occupying power should be
required to do so when this is necessary for the purpose of preservation.
5. Under the 1954 Hague Convention a provision for “cultural heritage damage assessment”
should be included. It should be facilitated and carried out under the auspices of either the
national authorities or an international organisation, such as UNESCO, as soon as feasible
during hostilities or following their cessation.
6. Non-Governmental Organisations (NGOs) having objectives similar to those of the
Convention and its both the Protocols could be actively involved by the State Parties in the
adoption of preparatory measures envisaged by Article 3 of the Convention and Article 5 of
the Second Protocol.
7. The Convention could be amended to include specific standards for:
a)
The training of military personnel in issues relating to the cultural heritage
protection.
b)
The preparation of military manuals that explicitly include training in cultural
heritage resource issues.
8. The Convention could also require from the State Parties to create and maintain a special
military unit, within their active military, dedicated to the protection and preservation of
cultural heritage.
9. The Security Council resolutions adopted under Chapter VII of the United Nations Charter
and authorising peace-keeping and peace-enforcement operations should explicitly mention
250
respect for the 1954 Hague Convention and its Protocols by the intervening forces in their
mandate.
10. The 1954 Hague Convention and its two Protocols could be properly disseminated within
the military, law-enforcement personnel, cultural heritage professionals, and other target
groups as well as the general public.
11. A global entity composed of historians, archaeologists, and museum professionals, could
be established for active involvement in the protection of cultural heritage during armed
conflicts.
These few suggestions could helpful in protection of cultural heritage during armed conflict.
However, the ultimate reality is that the sustained protection of cultural heritage during armed conflict
depends upon the political will of nations to enact domestic legislation ensuring that cultural heritage
should not become a military objective. They also need to co-operate in the progressive development
of a collective social ethos that respects cultural heritage and engenders strict criminal responsibility
upon transgressors. To conclude, cultural heritage belongs to humanity at large. It is part and parcel
of the collective consciousness and memory of humankind. The cultural heritage symbolises human
life itself. If cultural heritage is destroyed, human life suffers greatly as well. It is incumbent upon us
to safeguard and preserve cultural heritage and hand down this inheritance to the future generations.
*****
251
Legislative Measures for Prevention of Corruption: A Study in the
Special Reference of Lokpal Institution
Chandra Shekhar Joshi1
“If we cannot make India corruption-free, then the vision of making the nation develop by 2020
would remain as a dream.”
- Dr. A.P.J.Abdul Kalam
Introduction:
One of the main functions of the state is maintenance of law and order, right of equality
before law and to prevent abuse of power given by law and ensuring correct application of law.
This can be ensured by watchfulness, caution and vigilance. As such the central government has
enacted a number of laws dealing with corruption.2 Public servants in India can be penalized for
corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The
Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of
Money Laundering Act, 2002 penalizes public servants for the offence of money laundering. India is
also a signatory (not ratified) to the UN Convention against Corruption since 2005. The Convention
covers a wide range of acts of corruption and also proposes certain preventive policies.
The central government is considering the introduction of a Lokpal Bill to put in place a
mechanism to tackle corruption.3Currently, public servants (such as government employees, judges,
armed forces Officer, police officer) can be prosecuted for corruption under the Indian Penal Code,
1860 and the Prevention of Corruption Act, 1988. However, the Code of Criminal Procedure and
the Act require the investigating agency (such as CBI) to get prior sanction of the central or state
government before it can initiate the prosecution process in a court.4 The Supreme Court in the 1998
P.V. Narasimha Rao bribery case ruled that Members of Parliament (MPs) fall within the ambit of the
definition of “public servant” in the Prevention of Corruption Act, 1988. However, opinion among
the judges was divided over the issue of previous sanction with one side stating that MPs could not
be prosecuted since there was no authority competent to give sanction and the other suggesting that
till the law is suitably amended, the Speaker of the Lok Sabha and Chairman of the Rajya Sabha
should give the necessary sanction.5
1* Research Scholar(Law), Faculty of Law, Kumaun University, S.S.J.Campus, Almora.
2
. Dr. B.Hydervali, Law and Corruption in India, India Bar Review Vol.29(1)2002
3
.“PM Inaugurates Conference of Chief Secretaries of State,” PIB, Feb 4, 2011.
4
.Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988.
5
. P.V. Narasimha Rao v. State (AIR 1998 SC 2120).
252
Historical Background:
The idea of constituting an Ombudsman type institution to look into the grievances of
individuals against the administration was first mooted in 1963 during a debate on Demands for
Grants for the Law Ministry.6 In 1966, the First Administrative Reforms Commission recommended
that two independent authorities at the central and state level be established to enquire into complaints
against public functionaries (including Members of Parliament).
Corruption is defined by the World Bank and Transparency International (WB&TI) as “The
misuse of public office for private gain.” The first concrete step for the appointment of an Lokpal
institution in India came with the introduction of the Lokpal and Lokayukta bill in the Lok Sabha
on May 9, 1968, to implement the recommendations of the Administrative Reforms Commission
(ARC). The Bill was referred to a joint committee and was later passed by the Lok Sabha (August
20, 1969). But while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and the Bill
consequently lapsed. The Bill was again introduced in the Lok Sabha on August 11, 1971. It lapsed
on the dissolution of that Lok Sabha, in 1977. A bill on Lokpal was introduced in the sixth Lok Sabha
on July 28, 1977. The report of the joint committee, incorporating certain amendments in the Bill,
was placed before the Lok Sabha on January 20, 1978. However, before the Bill could be adopted by
Parliament, the Lok Sabha was dissolved, in July 1979, and the Bill lapsed. None was considered by
the seventh Lok Sabha elected in 1980.7
To the Bills of 1971 (based on the first Bill of 1968) and of 1977 we must now turn. The
1971 Bill empowered the Lokpal to inquire into both a “grievance” and an “allegation”. The 1971
Bill excluded the Prime Minister; the 1977 Bill included him.
Indira Gandhi had no use for any such law when she returned to power in January 1980.
Rajiv Gandhi had a go at it. The Bill that his Law Minister, A.K. Sen, moved in the Lok Sabha on
August 26, 1985, departed radically from the models of 1971 and 1977 and set up, in effect, a parallel
quasi-judicial body with its remit confined solely to the criminal offence of bribery under the Indian
Penal Code or the Prevention of Corruption Act, 1947.8 It was withdrawn on November 15, 1988, on
specious grounds.
The Bill introduced in the Lok Sabha by V.P. Singh’s government on December 29, 1989,
was an exact replica of the Rajiv Gandhi government’s Bill except for two changes. The Prime
Minister was explicitly covered, and reference to the IPC and the Prevention of Corruption Act of
1947 was replaced by reference to the Prevention of Corruption Act, 1988.
The sinister purpose behind this appeared in clause 24 of the 1985 Bill, which read thus:
“Notwithstanding anything contained in any other law for the time being in force, where on an inquiry
6
7
8
.“Problems of Redress of Citizens’ Grievances,” Interim Report of the First Administrative Reforms Commission,
1966.
. A.G.Noorani, History of deception, FRONTLINE, 2011, Vol.28-issue 10: may 07-20.
. Ibid
253
in respect of a complaint against a public functionary the Lokpal or the competent authority has held
that any allegations made in the complaint have not been proved or substantiated, no prosecution
shall lie on any complaint, report, information or otherwise and no court shall take cognisance of any
offence on the basis of the same or substantially the same allegations as in the complaint.” In other
words, a Lokpal probe, skilfully initiated, would bar prosecution in the courts altogether.9
The 1971 Bill covered both grievances in respect of maladministration and allegations of
misconduct. The 1977 Bill was confined to “misconduct” alone, albeit defined in modest terms to
cover abuse of power and improprieties as well as corruption. The 1985 Bill omitted grievances of
maladministration as well as charges of misconduct and restricted the jurisdiction severely to matters
which are for the courts to decide – criminal offences as defined in the IPC and the Prevention of
Corruption Act.
Having thus restricted the Lokpal’s jurisdiction, the 1985 Bill sought to exclude the criminal
courts’ jurisdiction as well. And not only if the Lokpal exonerated the Minister but also if, disagreeing
with his findings, the Prime Minister chose to exonerate his colleague. For, clause 24 referred to the
results of an inquiry by “the Lokpal or the competent authority”. And who was this “competent
authority”? Clause 2(a) said it “means the Prime Minister”. The whole thing was a fraud.10
The Bills of September 10, 1996 (H.D. Deve Gowda regime), of July 23, 1998 (A.B. Vajpayee
regime), and of July 9, 2001 (A.B. Vajpayee regime) all studiously copied Rajiv Gandhi’s (or A.K.
Sen’s) Bill of 1985 and confined the Lokpal’s remit to corruption as defined in the Prevention of
Corruption Act of 1988.
In 2002, the report of the National Commission to Review the Working of the Constitution
urged that the Constitution should provide for the appointment of the Lokpal and Lokayuktas in the
states but suggested that the Prime Minister should be kept out of the purview of the authority.11 In
2004, the UPA government’s National Common Minimum Programme promised that the Lokpal Bill
would be enacted.12 The Second Administrative Commission, formed in 2005, also recommended
that the office of the Lokpal be established without delay. In January 2011, the government formed
a Group of Ministers, chaired by Shri Pranab Mukherjee to suggest measures to tackle corruption,
including examination of the proposal of a Lokpal Bill. The government has issued a gazette
notification for setting up a joint committee consisting of 10 members from the government as well
as the civil society to draft the Lokpal Bill. The drafting committee was officially formed on 8 April
2011. The Government of India accepted that the committee be co-chaired by a politician and an
activist, non-politician. It is reported that Pranab Mukherjee, from the political arena, and Shanti
Bhushan, from civil society, will fill those roles. In 2011, during the Parliament’s Winter Session, the
9 . Ibid
10 . Ibid
11 .“Executive and Public Administration,” Chapter 6 of the National Commission to Review the Working of the
Constitution (Chairperson: Shri M.N. Venkatachiliah), March 31, 2002 .
12 .National Common Minimum Programme of the Government of India, May 2004.
http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf.
254
Lok Sabha passed controversial Lokpal and Lokayukta Bill, but it was subsequently turned down in
the Rajya Sabha.
Comparative Study of JanLokpal, 2011
Legislative Mesure:
No.
1.
SR Subject
and
Lokpal
and
Lokayuktas Bill, 2011 Proposed
JanLokpal Bill, 20111
Extent,
It shall come into force on 120th day of
application
and its securing assent from the President
commencement
of India. This draft provides only for
the Lokpal for central public servants.
2.
Definition
of The same meaning as defined in section
“public servants”
2(c) of Prevention of Corruption Act
1988.3
3.
Jurisdiction
PM
4.
Procedure
investigation
(Lokpal)
5.
Action
on
investigation
against
PM,
Minister, MPs
over Prime Minister can be investigated,
only with majority of a full bench
(seven member) Lokpal bench.
for Every
investigating
officer
shall endeavour to complete the
investigation of an offence within a
period of 6 months but when necessary
he may obtain extension of time from
a Bench of the Lokpal. In any case the
period of investigation shall not extend
18 months.
No investigation or prosecution
shall be initiated without obtaining
permission from a 7‐Member Bench
of the Lokpal against against PM,
Minister, MPs.
as
The
Lokpal
and
Lokayuktas Bill, 20112
The Bill, once passed,
shall be applicable
to states if they
give consent to its
application.
The
Bill
excludes
public servants who are
covered under the Army
Act, 1950; the Air Force
Act, 1950; the Navy
Act, 1957 and the Coast
Guard, 1978.
The Bill requires that an
inquiry against the PM
has to be approved by
a 2/3rd majority of the
full bench of the Lokpal.
The Bill allows an
extension of 6 months
at a time for reasons to
be recorded in writing.
It does not limit the
number of occasions on
which such extension
may be allowed
Further the
2/3rd
majority
of
the
full bench of the
Lokpal, Lokpal has
empowered to action
on investigation against
PM, Minister, MPs.
6.
7.
8.
9.
255
Conduct of MPs
Conduct of Member of Parliament Can Conduct of Member
be investigated with the permission of of Parliament Can
seven member Lokpal bench.
be investigated, but
their conduct within
Parliament, cannot be
investigated.
Removal
of Any person can bring a complaint
Any
“aggrieved
Lokpal members to the Supreme Court, who can then
party” can raise
and Chairperson
recommend removal of any member
a complaint to
to the President.
the
President,
who will refer the
matter to the CJI,
and further the
recommendation of
CJI the President
of
India
has
empowered
to
Removal of Lokpal
members
and
Chairperson.
Judiciary
Judges of High Court and Supreme
Judiciary is exempt
Court Can be investigated, only
and will be covered
with majority of a full bench (seven
by
a
separate
member) Lokpal bench.
“judicial standards
and accountability
bill 2010”.
Establishment
Lokayuktas
State
of This draft provides only for the Lokpal
in for central public servants. Similar
provisions for Lokayuktas in the
States to deal with public servants of
the State will have to be incorporated
in the bill.
As
from
the
Commencement
of
this act, there shall be
established in a State,
by notification in the
Official Gazette, a
body to be called the
“Lokayukta”
Judicial Approach on Combating Corruption:
Corruption in a civilized society is a disease like cancer, which if not detected in time, is sure
to malignance the policy of country leading to disastrous consequences. It is termed as plague, which
are not contagious but if not controlled spreads like fire in a jungle.13
13
. Supra note.1
256
All people are equal under the law, but the provisions relating to prosecution sanctions in
India would suggest that some people are more equal than others. Section 19 of the Prevention of
Corruption Act prevents courts from taking cognizance of offences allegedly committed under the
Act by a public servant without prior sanction of the government. And Section 197 of the Code of
Criminal Procedure lays down the general requirement of prior sanction while prosecuting public
servants. Such provisions were conceived to ensure that public servants are not harassed and their
work not stymied by vexatious and frivolous complaints. But in practice, these protective measures
have functioned as a shield against prosecution, encouraging dishonest bureaucrats and ministers to
flout the law with impunity. The Supreme Court’s verdict in a case related to the 2G scam, contains
two important rulings relating to prosecution sanctions. First, by holding that Janata Party President
Subramanian Swamy had the locus standi to seek sanction to prosecute former Telecom minister A.
Raja, the Court has empowered all citizens to press for action against those public servants suspected
of corrupt practices. Secondly, the Court has laid down that sanction for prosecution would be
deemed to have been granted if the competent authority fails to take a decision within a period of
four months. This is in broad consonance with the directives in the landmark Vineet Narain case,
where the Supreme Court had ruled that while a maximum of three months for grant of sanction must
be strictly adhered to, an additional one month may be allowed in cases where consultation with the
Attorney General is required.14 The judiciary decided number of cases on combating corruption.15
Conclusion:
The Lokpal Bill was introduced for the first time in 1968 but it lapsed with the dissolution of
the Lok Sabha. It was introduced seven more times in Parliament, the last time in 2001. However, the
Bill lapsed each time except in 1985 when it was withdrawn. At the state level, so far 18 states have
created the institution of the Lokayukta through the Lokayukta Acts. If a Lokpal is to be worthwhile,
the selected person must
(1) have jurisdiction in respect of both maladministration and misconduct.
(2) be appointed by a procedure that excludes executive influence and control. The Chief Justice of
India and the Leader of the Opposition in the Lok Sabha must be on the selection panel along with
the Prime Minister.
(3) Lokpal must be a former judge of the Supreme Court or a former Chief Justice of a High Court.
(4) have jurisdiction over a wide range of “public men” – the Prime Minister, MPs, senior civil
servants, civil servants for group A,B,C and D, heads of public corporations and so on,
14
15
. Editorial, THE HINDU, February 1, 2012.
. Vineet Narayan v. Union of India, AIR-1988,S.C. 890; Jayalalitha v. Union of India, AIR-1999,S.C.1912; Madhya
Pradesh v. Shri Ram Singh, AIR-2000,S.C.870; State v. Bangarappa, AIR.-2001,S.C.223; Madhukar Bhasarrao
Joshi v. State of Maharastra, AIR-2001,S.C.147; Shivendra Kumar v. State of Maharastra, AIR-2000, S.C.3079;
M.Narsing Rao v. State of Andhra Pradesh, AIR-2001,S.C.318; Kanwarjit Singh Kakkar v. State of Panjab and Anr.
(Criminal Appeal No.1041 of 2011); Dr. Subramanian Swamy V. Dr. Manmohan Singh and another (civil appeal no.
1193 of 2012),(Arising out of SPL(c)No. 27535 of 2010).
257
(5) have an independent investigating agency of his own and not be dependent on the Central Bureau
of Investigation.
(6) have the power to launch prosecutions himself and order vacating of office.
(7) be easily accessible.
(8) give him constitutional status comparable to that of the CAG.
Suggestion:
After a long struggle (since 1966-2011) finally, we have two drafts of Lokpal bill; first
Lokpal and Lokayukta Bill, 2011 (prepared by Government of India) and second is Jan Lokpal Bill,
2011 (prepared by Civil Society). When we compare the drafts, we find that the Jan Lokpal Bill, 2011
is effective, ensures accountability, transparency and quality of service in public and private sector
with the help of grievance redressal system (citizens’ charter). Whistleblower protection is already
given by Jan Lokpal Bill and after the Shehla Masood (a RTI activist), i.e. the Bhopal case, it is the
necessary and compulsory requirement for a prevention of corruption laws. Legislative measures as
proposed by the government and social organizations, the following suggestions may be apt, relevant
and germane for enacting a useful, practical and beneficial legislation for combating the corruption
in India:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Whistleblower Act should be enacted.
Accountability through transparency (access to information) should be
maintained by the union and state legislation.
Focus should be given to enforcement to prevention of corruption laws for the
effective operation of these laws in India.
Awareness programme should be organized by the government and nongovernment organizations for curbing corruption in India.
Focus should be given on result oriented service to the public for the benefit of
the society.
Developing the capacity of “Pillars of Integrity” to fight corruption by the
people of India.
Citizen charter should be framed by every public and private institution for
ensuring the transparency and accountability in public domain.
The above suggestions may be incorporated by providing special provision in the proposed
Jan Lokpal and The Lokpal and Lokayukata bill, 2011. In the democracy, it is the demand of the
people to fulfill all the required requirement for smooth running of the governance.
1
(Footnotes)
. The Jan Lokpal Bill,2011 drafted by Civil Society
2
. The Lokpal and Lokayukta bill,2011
3
. Prevention of Corruption Act 1988, Sec.2(c) “public servant” means-
258
(i) any person in the service or pay of the Government or remunerated by the Government by fees
or commission for the performance of any public duty;
(ii)
any person in the service or pay of a local authority ;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or
State Act, or an authority or a body owned or controlled or aided by the Government or a Government
company as defined in section 617 of the Companies Act, 1956;
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a
member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the
administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or
report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain
or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any
public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered cooperative
society engaged in agriculture, industry, trade or banking, receiving or having received any financial
aid from the Central Government or a State Government or from any corporation established by or
under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by
the Government or a Government company as defined in section 617 of the Companies Act, 1956;
(x) any person who is a chairman, member or employee of any Service Commission or Board, by
whatever name called, or a member of any selection committee appointed by such Commission or
Board for the conduct of any examination or making any selection on behalf of such Commission
or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader,
lecturer or any other teacher or employee, by whatever designation called, of any University and
any person whose services have been availed of by a University or any other public authority in
connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural
or other institution, in whatever manner established, receiving or having received any financial
259
assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1.-Persons falling under any of the above sub-clauses are public servants, whether
appointed by the Government or not.
*****
260
Interpretation of Statutes vis-à-vis Judicial Legislation by Supreme
Court- The Recent Trend
Parthsarathy Anand Swaroop Pati1*
Abstract
This article is an attempt to analyise the role of the Indian Judiciary in
interpreting the statute and their applicability vis-à-vis its power of making law under
provisions of Article 141, 142, 32 & 226 of the Constitution of India.
Undoubtedly, Indian Constitution confers upon the Indian Judiciary the power
of judicial review and judical legislation. Even then, a question has often been raised
as to “whether judiciary should and could frame and implement laws which were under
the exclusive domain of the legislature and the executive.”
Landmark judgements of the Hon’ble Apex Court have been referred to in this
article in order to bring home the point that Hon’ble Judges of the Apex Court do hold
divergent views on this issue.
Introduction
In a parliamentary democracy like India, power to legislate primarily falls within the domain
of the legislature i.e. theIndian Parliament and the State Legislative Assemblies; but at the same time
the Indian Constitution empowers the judiciary to make judicial review of the law enacted by the
legilature and under this provision of power of judicial review, the judiciary not only interprets the
statutes but formulates law as well, whenever deemed necessary- giving birth to a system of judicail
legislation.
In this context it is important to note that the judgement passed by the Hon’ble Supreme Court
in the case of University of Kerela v. Council of Principals of Colleges, Kerela2, has assumed an
extra significance since it has given rise to a legal debate on the issue of desirability and competence
of judiciary to make law.
Recently the two-member bench of Justices Markandey Katju and Asok Kumar Ganguly3
raised a basic Constitutional issue of the judiciary’s competence to make executive orders or
frame laws while hearing a petition of some Jawaharlal Nehru University students. The petitioners
questioned a September 2006 apex court order for implementation of the J M Lyngdoh Committee
recommendations on reforming students’ union polls in colleges and universities. But the bench’s
reference to the Constitution bench has the potential to go far beyond the issue in question, as in
1
2
3
Advocate, Jharkhand High Court, Ranchi. BSL LL.B, LLM, Ph.D Candidate,nResearch Scholar, Ranchi
University, Ranchi
(2010) 1 SCC 353
Supra Note 2
*
261
the last few years the apex court had delivered several popular judgments that were executive and
legislative in nature, be it the enforcement of CNG autos, taxis and buses in the national capital,
moving out industrial units from residential areas of the national capital or ordering the demolition of
illegal commercial buildings across the city. The bench said the Constitution bench should consider
whether the judiciary can frame and implement laws which were under the exclusive domain of the
legislature and the executive. It noted that the courts lacked the expertise to pass orders of executive
and legislative nature.
The law operating in the field of ‘judicial legislation’ was no more res Integra. However,
recently the order passed by the Hon’ble Supreme Court in the case of University of Kerela v. Council
of Principals of Colleges, Kerela4 has again raised the issue of permissibility and limit of ‘judicial
legislation’.
Though the Hon’ble Supreme Court was of the considered view that the power of Court to
legislate must be considered by a larger bench of the Supreme Court, the Hon’ble Court has during
pendency of the matter before the large bench went on to don the role of the legislator at the same
time in several case expressed its inability to resort to judicial legislation. In the present paper I
intend to discuss the recent judicial trend in the field of judicial legislation and the role played by the
Hon’ble Apex Court since the matter order passed since the case of University of Kerela v. Council
of Principals of Colleges, Kerela5.
Rent Legislation
The Hon’ble Apex Court while interpreting the provisions of the Haryana Urban (Control of
Rent and eviction) Act, 1973 permitting landlord to seek eviction of a tenant on ground of bonafide
requirement from residential premises, in respect of non-residential premises, held that bonafide
requirement of a landlord of a residential building must include a non-residential building as well6. It
was held that such view not a usurpation of legislative power by Court. But it is equally true that the
Hon’ble Court while interpreting the statutory provision has read in what was not expressly provided
by the legislature.
Negotiable Instruments Act
In a case while interpreting the provisions of S. 145 (1) of the Negotiable Instruments Act,
1881 the Hon’ble Apex Court has held that if the legislature in their wisdom did not think ‘it proper
to incorporate a word ‘accused’ with the word ‘complainant’ in S. 145 (1) ....”, it was not open to the
High Court to fill up the self-perceived blank. In the guise of interpretation it is not permissible for
the Court to make additions in the law and to read into it something that is just not there7.
4
5
6
7
Ibid
(2010) 1 SCC 353
Ashok Kumar v. Ved Prakash & Ors (2010) 2 SCC 264.
Mandvi Co-Operative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83
262
Income Tax
Dealing with the provisions of the Income Tax Act, 1961, it was held by the Hon’ble Apex
Court that enlargement of the scope of the statute by Courts is impermissible. The acceptance of the
plea of the NBFCs’ plea to include NBFC in S. 36(1) (vii-a) would amount to judicial legislation
which is impermissible. It was also observed that when an economic activity is to be valued, it is
open to the lawmakers to take into account various factors like public investments, disclosure and
transparency in the matter of maintenance of accounts, reflection of true and correct profiles, etc.8
The Sources of law or its creation according to the Hon’ble Apex Court is that “Law comes
into existence not only through legislation but also by regulation and litigation. Laws from all three
sources are binding. According to Professor Wade, “between legislative and administrative functions
we have regulatory functions”. A statutory instrument, such as a rule or regulation, emanates from
the exercise of delegated legislative power which is a part of administrative process resembling
enactment of law by the legislature whereas a quasi-judicial order comes from adjudication which is
also part of administrative process resembling a judicial decision by a court of law.”9
Doctrine of Incorpotartion
Expressing its opinion on ‘Doctrine of Incorpotartion’ it has been held by the Hon’ble
Supreme Court that it cannot be invoked by implication. A disenabling provsison must be clearly
spelt out by the legislature while enacting a statute. The courts have to be careful in readig into the
Act such disenabling provisions as that would tantamount to judicial legislation which courts must
eschew. If a disenabling provision is read into the Act, it would amount to judicially legislating by
reading something into the Act which is not there. All this would come within the relam of legislation
which can be done only by the legislature.10
Hawkers
Recognising the rights of the hawkers the Hon’ble Court resorted to judicial legislation by
issuance of directions in public interest and in the need of judicial, social, constitutional and legal
and other stated expidency, suggested temporary alternative dispute redressal mechanism till time
bound finalisation of proper law11.
Legal Fiction
Dealing with introduction of legal fiction, it has been held by the Hon’ble Apex Court that
the same cannot be introduced by the courts. It is the exclusive prerogative of the legislature to create
a legal fiction to enact deeming provisions for the purpose of assuming the existence of a fact which
doesnot really exist. In the absence of any statutory provision, the provision cannot be construed as
8 Southern Technologies Limited v. Joint Commissioner of Income Tax, Coimbatore (2010) 2 SCC 548
9
PTC India Ltd. v. Central Electricity Regulatory Commission AIR 2010 SC 1338
10 CIT v. Pawan Kumar Laddha (2010) 324 ITR 324
11 Gainda Ram & Ors. v. Municipal Corporation of Delhi & Ors. (2010) 10 SCC 715
263
to provide for a fiction in such eventuality. More so, creating a fiction by judicial interpretation may
amount to legislation, a field exclusively with the domain of the legislature12.
Appointment
Providing specific qualification or experience for appointment as Chairman/ members of
the Public Service Commission has been held to be a function of the Parliament. The guidelines
or parameters, if any, including that of stature, if required to be specified are for the appropriate
Government to frame. This requires expertise in the field, data study and adoption of the best
methodology by the Government concerned to make appointments to the Commission on merit,
ability and intergity. Neither is such expertise available with the Court nor will it be in consonance
with the constitutional scheme that the Court should venture into reading such qualification into
Article 316or provide any specific guideline controlling the acedemic qualification, experience and
strature of an individual who is proposed to be appointed13.
Armed Forces Grievances Redressal Commission
Exercising powers under Article 32 of the Constitution of India, the Hon’ble Supreme Court
has directed constitution of a Armed Forces Grievances Redressal Commission to consider the issues
of general importance, grievances of serving or retired members of the armed forces, their widows or
family members and make suitable recommendations to the Central Government as well as to frame
and recommend to the central government a scheme for prper rehabilitation of discharged soilders.
Such directions were issued due to executive and legislative inactions14.
Judicial Review of Statutes And Executive Actions
While dealing with power of judicial review the Hon’ble Court has held that judicial process
is not a bucket of readymade answers, but a process, or thechnique, for easing an endless flux of
changing social tensions. Excessive interference of the judiciary in the functions of the executive
is not proper. Great restrian has to be displayed in judicial review of statutes. Adjudication must
be done within the system of historically validated restrains and concious minimisation of the
Judges’ preferences. The Court must not embrass the administrative authorities and must realise that
administrative authorities have expertise in the field of administration while the Cout does not have.
In exercising the power of judicail review, the courts cannot be oblivious of the practical needs of the
Government.15
Health Concern
Expressing concern over the ill effects of asbestos, the Hon’ble Court has held that there
is no law banning use of asbestos in manufacturing process despite its adverse effect on human
12
13
14
15
Santlal Gupta v. Modern Coop. Housing Society Ltd. (2010) 13 SCC 336
Mehar Singh Saini, In Re (2010) 13 SCC 586
Pushpa Vanti v. Union of India & Ors (2011) 1 SCC 193.
Transport and Dock Workers Union & Ors. v. Mumbai Port Trust & Anr. (2011) 2 SCC 575
264
health. It is not fro court to legislate and ban an activity under relevant laws. Better supervision
and regulatory control are required rather than banning an activity. However, noticing the fact that
15 years have lapsed since issuance of directions in CERC case16 thus these circumstances require
government to examine and review the matter in accordance with law.17
Central Excise
Deciding the claim of a dealer for entitlement of CENVAT credit under the Central Exice, the
Hon’ble Court has held that a statutory provision is genrally read down to save the said provision from
being declared unconstittional or illegal. The rule of reading down is in itself a rule of harmonious
construction in a different name. It is generally utilised to straighten the crudities or ironing out the
creases to make a statute workable. In the garb of reading down a provision it is not open to read
words and expressions not found in the provision/ statute and thus venture into a kind of judicial
legislation. It is to be used for limited purpose of making a particular provision workable and to bring
it in harmony with other provisions of the statute.18
Chief Vigilance Commissioner
Dealing with case of appointment of Chief Vigilance Commissioner, the Hon’ble Court has
held that To accept the contentions advanced on behalf of the petitioners would mean conferment
of a “veto right” on one of the members of the HPC. To confer such a power on one of the members
would amount to judicial legislation.19 However, it is respectfully submitted that the Hon’ble Court
has ventured into the sphere of law making while laying down the guideline in the following termsIn our judgment we have held that there is no prescription of unanimity or consensus under Section
4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of
difference of opinion amongst the Members of the High Powered Committee. As in the present case,
if one Member of the Committee dissents that Member should give reasons for the dissent and if the
majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This
will bring about fairness-in-action. Since we have held that legality of the choice or selection is open
to judicial review we are of the view that if the above methodology is followed transparency would
emerge which would also maintain the integrity of the decision- making process.
Euthanasia
Faced with the vexed issue of euthanasia, the Hon’ble Court has actually ventured into
judicial law making. It held that there is no statutory provision in our country as to the legal procedure
for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in
this connection. Passive euthanasia should be permitted in our country in certain situations, and that
it should never be permitted is incorrect. Hence, following the technique used in Vishakha’s case20,
16 Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42
17 Kalyaneshwari v. Union of India & Ors. (2011) 3 SCC 287
18 Union of India v. Ind-Swift Laboratories (2011) 4 SCC 635
19 Centre for PIL v. Union of India (2011) 1 SCC 1
20 (1997) 6 SCC 253
265
the law was laid down in this connection to continue to be the law until Parliament makes a law on
the subject.
(i) A decision has to be taken to discontinue life support either by the parents or the spouse or
other close relatives, or in the absence of any of them, such a decision can be taken even by a
person or a body of persons acting as a next friend. It can also be taken by the doctors attending
the patient. However, the decision should be taken bona fide in the best interest of the patient.
(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw
life support, such a decision requires approval from the High Court concerned as laid down in
Airedale’s case (supra).21
Auction Sale
Realising the arbitrariness in auction sale of properties by the Financial Corporation upon
initiating proceedings under Section 29 of the Act, in absence of Rules or guidelines in the form of
executive instructions for sale of properties owned by them. It was held that till such formation of
Rules or guidelines or orders as mentioned above, the KFC must adhere to the following directions
for sale of properties owned by it:
(i) The decision/intention to bring the property for sale shall be published by way of advertisement
in two leading newspapers, one in vernacular language having sufficient circulation in that
locality.
(ii) Before conducting sale of immovable property, the authority concerned shall obtain valuation
of the property from an approved valuer and in consultation with the secured creditor, fix the
reserve price of the property and may sell the whole or any part of such immovable secured
asset by any of the following methods:
(a) by obtaining quotations from the persons dealing with similar secured assets or otherwise
interested in buying such assets; or
(b) by inviting tenders from the public; or
(c) by holding public auction; or
(d) by private treaty.
Among the above modes, inviting tenders from the public or holding public auction is the
best method for disposal of the properties belonging to the State.
(iii) The authority concerned shall serve to the borrower a notice of 30 days for sale of immovable
secured assets.
(iv) A highest bidder in public auction cannot have a right to get the property or any privilege,
21
Aruna Ramchandra Shanbaug v. Union Of IndiaAir 2011 SC 1290
266
unless the authority confirms the auction sale, being fully satisfied that the property has fetched
the appropriate price and there has been no collusion between the bidders.
(v) In the matter of sale of public property, the dominant consideration is to secure the best
price for the property to be sold. This can be achieved only when there is maximum public
participation in the process of sale and everybody has an opportunity of making an offer. It
becomes a legal obligation on the part of the authority that property be sold in such a manner
that it may fetch the best price.
(vi) The essential ingredients of sale are correct valuation report and fixing the reserve price. In
case proper valuation has not been made and the reserve price is fixed taking into consideration
the inaccurate valuation report, the intending buyers may not come forward treating the property
as not worth purchase by them.
(vii) Reserve price means the price with which the public auction starts and the auction bidders
are not permitted to give bids below the said price, i.e., the minimum bid at auction.
(viii) The debtor should be given a reasonable opportunity in regard to the valuation of the
property sought to be sold, in absence thereof the sale would suffer from material irregularity
where the debtor suffer substantial injury by the sale.22
Presumption In Favour of The Legislature
Observing against the judicial legislation it has been held that the first and foremost principle
of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The
other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted
to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally
would nullify the very object of the statute. Where the words of a statute are absolutely clear and
unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule,
vide Swedish Match AB v. Securities and Exchange Board, India23. As held in Prakash Nath Khanna
v. C.I.T.24, the language employed in a statute is the determinative factor of the legislative intent. The
legislature is presumed to have made no mistake. The presumption is that it intended to say what it
has said. Assuming there is a defect or an omission in the words used by the legislature, the Court
cannot correct or make up the deficiency, vide Delhi Financial Corporation v. Rajiv Anand25. Where
the legislative intent is clear from the language, the Court should give effect to it, vide Government
of Andhra Pradesh v. Road Rollers Owners Welfare Association26, and the Court should not seek to
amend the law in the garb of interpretation.
22 Kerela Financial Corporation v. Vincet Paul AIR 2011 SC 1388
23 AIR 2004 SC 4219 : (2004 AIR SCW 4853)
24 2004 (9) SCC 686 : (AIR 2004 SC 4552 : 2004 AIR SCW 3692)
25 2004 (11) SCC 625
26 2004(6) SCC 210
267
No doubt in some exceptional cases departure can be made from the literal rule of the
interpretation, e.g. by adopting a purposive construction, Heydon’s mischief rule, etc. but that should
only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from
the literal rule as that would really be amending the law in the garb of interpretation, which is not
permissible. Hence, there should be judicial restraint in this connection, and the temptation to do
judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.27
Subordinate Legislation
Lack of power with Courts to issue direction for framing of subordinate legislation was
considerd by the Hon’ble Apex Court. It was held that there can be no doubt that no court can direct
a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative
power by way of subordinate legislation pursuant to the delegated authority of a legislature, such
executive authority cannot be asked to enact a law which he has been empowere to do under the
delegated legislative authority. So far as the legislation is concerned, the exclusive domain is with
the legislature. Subordinate legislation are framed by the executive by exercising the delegated
power conferred by the statute, which is the rule-making power. The judiciary has been vested with
the power to interpret the aforesaid legislation and to give effect to them since the parameters of
the jurisdiction of both the organs are earmarked. Therefore, it is always appropriate for each of the
organs to function within its domain. It is inappropriate for the courts to issue a mandate to legislate
an Act and also to make a subordinate legislation in a particular manner.28
Black Money
Entertaining a petition under Article 32 of the Constitution of India pertaining to generation
of large sums of monies within India but being illegaly secreted away in various banks and foreign
countries, the Hon’ble Court steeped in to fill up the executive inaction. It was held that it is the duty
of the Supreme Court to uphold the rule of law. Directions were issued to redress inaction and for
monitoring29.
Terrorism And Extremism
While striking down the state policies designated to combat terrorism and extremism, it
was held that judiciary does not seek to interefere with security considerations which are within
the purview of executive and legislature. Judiciary intervenes in such matters only to safeguard
constitutional values and goals, and fundamental rights such as equality and right to life. Every organ
of a state must function within four corners of constitutional responsibility30.
27 B. Premanand v. Mohan Koikal AIR 2011 SC 1925
28 State of U.P. v. Mahindra & Mahindra Ltd. (2011) 13 SCC 77
29 Ram Jethmalani v. Union of India & Ors. (2011) 8 SCC 1
30 Nandini Sundar & Ors. v. State of Chhatisgarh (2011) 7 SCC 547
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Enviorment
Noticing the need for regulation of enviormental matters and considering ineradicable
conflict in decision making process in enviormental matters and burden on courts on that count,
Central Government and State Government ere directed to appoint regulators. Further the Hon’ble
Court laid down guidelines to be in force till such regulatory mechanism are put in place31.
Town Planning
In matters of Town Planning directions may be passed by Court. Removal of illegal
encroachments on footpaths and public streets in existing market PIL for and writ petitions High
Court directing construction of new multi-level parking-cum-shopping complex in place of old
market, removal of incumbent shopkeepers from rented shops and relocation to new complex
and constitution of committee to supervise such construction. Held, on analysing various orders
issued by it, High Court did not overstep its limit while giving directions. Orders were passed by
High Court on basis of consensus of parties. More particularly, a committee was appointed with
consent of shopkeepers and a direction was issued for providing an alternate place to shopkeepers
till new construction was completed and all of them were assured of accommodation on ground
floor of new market complex. Therefore, ultimate directions issued in final order cannot be faulted.
Ultimate directions safeguard not only interest of Municipal Corporation and general public but
also all 252 shopkeepers who are running their business in market concerned. Market became
quite old and was fully congested and there was no space for parking. High Court rightly directed
through interim orders in interest of all parties and citizens of the city, construction of a new market
building and also constituted a committee to see that new market building is constructed and after
the construction, existing shopkeepers were also settled therein. Hence, respondents, particularly
Municipal Corporation directed to implement High Court directions within parameters of statutory
provisions considering interest of general public and shopkeepers of existing market32.
Government Quarters Allotment
Dealing with Government Quarters Allotment Rules, it has been held by the Hon’ble Apex
Court that courts can issue directions with regard to the dispute in a particular case, but should be very
reluctant to issue directions which are legislative in nature. Normally the courts would not step in to
pass directions, which could , at times be construed as form of legislation. The courts have to take due
care while exercising such jurisdiction so that they donot overstep the circumscribed judicial limits.
However, the Hon’ble Court compelled by the circumstnaces held that the discretionary power to
allow retention of government quarter beyong specified period shall be entertained by the authorities
under the Allotment Rules33.
31 Lafarge Umiam Mining (P) Ltd. v. Union of India (2011) 7 SCC 338
32 Rakesh Sharma v. State of M.P. (2011) 9 SCC 195
33 Asha Sharma v. Chandigarh Administration & Ors. (2011) 10 SCC 86
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Sex Workers
Concerned with the plight of the sex workers, the Hon’ble Apex Court constituted a panel
to discuss the problems of the sex workers including rehabilitation. Upon the report of the panel the
Hon’ble Court directed the State authorities to ensure that the sexworkers get the ration cards and
voters ID cards without any difficulty, ease of opening the bank accounts, education to the children
of the sex workers34.
Caste Scrutiny Committee
Dealing with challenge to constitution of the caste scrutiny committee as per the judgement
laid down in Madhuri Patil’s35 case, the Hon’ble Court held that the directions issued in the said
case are intristic to fulfilment of fundamental rights of backward classes of citizens and and are also
intended to preclude denial of fundamental rights to such persons who are truly entitled to affirmative
action benefits. In giving such directions the Supreme Court neither re-wrote the Constitution, nor
resorted to “judicial legislation”. The judicial power was exercised to interpret the Constitution as a
“living document” and enforce fundamental rights in an area where the will of the elected legislature
have not expressed them.
To declare the law carries with it the power and within limits, the duty to make law when
none exists. Directions issued in the exercise of judicial power can fashion modalities out of the
existing executive apparatus, to ensure that eligible citizens entitled to affirmative action alone can
derive benefits of such affirmative action36.
National Flag
Dealing with the provisions of handling National Flag, it was held that the court can neither
legislate nor issue direction to the legislature to enact the law in a particular manner. The Court has
very limited role and in exercise of that, it is not open to have judicial legislation. In exceptional
circumstnaces where there is inaction by the executive, for whatever reason, the judiciary must step
in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts
to perform its role by enaction proper legislation to cover the field37.
Conclusion
Dr. Samuel Johnson has once ovserved that “a system built on the descoveries of many great
minds was always of more strenght then what is produced by the works of any one mind, which
of itself do little”. If we go by this saying, then undoubtedly, law making process should be the
exclusive domain of the law making bodies like parliamnent and state legislative assemblies as they
represent the collective mind of the nation and have aquired sort of expertise in formulating law; but
34 Budhadev Karmakar (5) v. State of West Bengal (2011) 10 SCC 354
35 Madhuri Patil v. Commissioner Tribal Development (1994) 6 SCC 241
36 Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC 333
37 V.K. Naswa v. Home Sect. , UoI & Ors (2012) 2 SCC 542.
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again bare law suffers from lack of life and meaning; here comes the relevance of interpretation of
laws and its applicability which makes it a live mechanism of social cange.
Today, the Indian judiciary is playing a role, which has no parallel in the history of the
judiciaries of the world. It has been upholding the rights of citizens, both the formal political rights
contained in Part III and also the socio-economic rights in Part IV of the Constitution. Many people
regard the judiciary as the last hope of the nation, despite all its defects. The Indian judiciary must
therefore prove itself worthy of the trust and confidence which the public reposes in it. The judiciary
must therefore not limit its activity to the traditional role of deciding dispute between two parties, but
must also contribute to the progress of the nation and creation of a social order where all citizens are
provided with the basic economic necessities of a civilized life e.g. employment, housing, medical
care, education etc. as this alone will win for it the respect of the people of the country38.
*****
38
Katju Markandey Justice Mr., The Significance of Human Rights and Its Correlation with Judicial
Functioning - Excerpts of Speech Delivered by Justice Markandey Katju , Judge Supreme Court of India
at a seminar held on 18-1-2003 on the above topic organized by Young Lawyers Association, Allahabad
in which the Chief Guest was Hon’ble Mr Justice R.C. Lahoti, Judge, Supreme Court.
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Electoral Politics in India : Challenges & Opportunities
Dr. Dhirendra Tripathi *
Abstract
This paper aims to discuss the concept of representative government and the right to
vote in India.
Currently, unsound mind, criminality, corrupt or illegal practice and non- residence
are the legal restrictions on voting for Indian citizenry1. This paper considers both
legal and practical impediments to the right to vote, in the belief that the right to vote is
uneven in its current implementation. The paper thus aims to emphasize inclusiveness
of the electoral system, with particular focus on the ground of ‘residence’ which has
uniquely Indian implications. A major part of discussion revolves around the difference
between the right to vote and an opportunity to exercise this right. To expound upon
this difference, the paper covers constitutional, legislative and judicial aspects of the
electoral process.
The paper analyses the relation between democracy and elections by showcasing unjust
disenfranchisement in world democracies and their journey towards universal adult
franchise. Owing to the limited approach of the term ‘ordinary residence’, the paper
criticizes certain conflicting and outdated provisions that restrict Indian citizens from
the opportunity to vote. The paper strongly supports legislative activism through the
Representation of people (Amendment) Bill, 2006. It advocates for the voting rights of
people migrating within the country who lose out on exercising this right due to absence
from their constituency. The paper also problematises the law preventing ‘under-trials’
from voting, in comparative experience with other jurisdictions as well as the practical
impediments faced by the elderly and disabled. This paper examines pros and cons of
extending voting rights to NRIs. The paper then proceeds to canvass solutions towards
the goal of an ‘inclusive electoral system’. The Concept of ‘compulsory voting’ is
analyzed in depth. The paper assesses the scope of ‘negative voting’ in India and its
effects on the electoral system. Focusing maximum involvement, the paper promotes
‘voting beyond boundaries’ by proposing alternative voting methods like postal voting,
proxy voting, internet voting and phone voting. All these alternative methods are studied
by taking examples from countries implementing such methods and the applicability
is analyzed in the Indian context. Pros and cons of each method are considered to
understand its effectiveness, loopholes and possible remedies.
The paper concludes by considering the tension between a constitutional right to vote
and the difficulty of implementing this right in several contexts.
1
See Constitution of India, 1950, Article 326.
* Assistant Professor (Pol. Sc.), Birsa College, Khunti, Ranchi University, Ranchi (Jharkhand).
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Introduction
The paradox of political representation understood narrowly involve a tension between
the profile, policies and politics of those who represent and the desires and demands of those who
get represented. Given India’s democratic aspiration and global standing as the world’s largest
democracy, it must seek to increase greater electoral participation. The right to vote flows from both
the constitution of India and the Representation of People Act (RPA), 1950. A citizen of India, above
18 years of age, has a right to register as a voter in a constituency irrespective of his or her race,
religion, caste or sex. The main objective of the study is to understand the gaps between the right to
vote and the opportunity to vote.
This issue haunts Indian democracy, questioning the professed commitment to government
‘by the people’. The Preamble to the Constitution of India equally emphasizes ‘unity of the nation’
and ‘dignity of the individual’, who has equality of opportunity. The equality of opportunity
unfortunately lacks when it comes to prohibiting right to vote on the ground of ‘residence’. This
prohibition is no longer relevant in today’s increasingly globalized world.
The right to vote is a part of freedom of expression and thought. Through casting a vote, a
citizen expresses his choice, his faith in the representatives. Considering that general elations are a
constitutional compulsion, how does depriving a large segment an opportunity to exercise their right
to vote, do justice to the compulsory elections? How can a limited citizenry decide for the rest? Is it
then a truly representative government?
The right to vote was heavily restricted during the colonial period. The contemporary,
democratic vision of India still places visible limits on the right to vote. They include disenfranchisement
of migrants and students on the basis of absence from constituency, restrictions on voting by ‘under
trails’, Practical impediments to voting due to issues of voter identification and physical access, and
disenfranchisement of NRIs.
Elections are an effective tool for public participation and right to vote is the most basic step
towards democracy building. We thus propose certain amendments in the existing legal provisions
to further the purpose.
Using this background, I suggest for three concrete changes in electoral process –
1.
2.
3.
To cover not just the NRIs but also migrants and the under trails.
To amend existing laws that regulate the election mechanism in such a
manner that NRIs are not forced to come back to India to vote.
Absentee voting.
India is already implementing postal voting for limited sections of society. With adequate
safeguards, it can be made to work for those on temporary move, the under trails, persons with
disability and elderly persons. The same applies to proxy voting. It is currently limited to members of
the armed forces and has caused significant increase in voting percentage in spite of the cumbersome
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procedure involved. As far as internet voting is concerned, without any doubt, it is the quickest and
efficient way of casting a vote. It will cut down huge costs of maintaining poll booths as the number
of people thronging then is likely to reduce. Of course, internet is prone to hacking, and countries,
big and small are trying to curb such acts.
In addition to these measures, more progressive provisions can be considered to improve
public participation and make the electoral process inclusive. In India, Gujarat has emerged as the
first state to make voting compulsory in elections to local authorities. Indeed, the idea is innovative
in the Indian context and should not be criticized simply because it tries to strike a balance between
a citizen’s right and duty to ensure that the principle of majority rule that forms the foundation of our
democracy is not weakened. However, there is a general notion that voting is a civic right rather than
a civil duty.
Further, there are doubts about the coercive nature of compulsory voting as right to vote
would also include right not to vote. Another interesting step would be to allow negative voting, where
a voter can express his distrust towards all candidates and cast his vote for none. One of the most
positive outcomes of negative voting would be to express ‘protest vote’. Unfortunately, the India
government is opposing negative voting. Empowering voter to recall non-performing representatives
would build up people’s trust in the system and shall increase participation. Chandigarh is already
implementing such a provision, although there are obvious pitfalls to insecure legislative tenure.
The proposed expansion needs careful consideration of the issues relating to security and
integrity of the electoral process. Secrecy of ballot and proper implementation of various systems
has to be ensured; efforts have to be taken to reduce and progressively eliminate the abuse of these
systems; complexity of logistics and resource requirements of central and state election commissions
need to be factored into. These challenges should not discourage India as a mature democracy from
moving towards developing a wider framework that will increase the political participation of
people in the electoral process. The potential abuse of absentee voting methods should not deter the
Indian government from ensuring that the right to vote of every Indian citizen is duly enforced. The
purpose of these suggestions to make the electoral process in India far more inclusive and to address
unreasonable fears associated with such change.
Backgrounds of Right to Vote in India
The elective element for the natives in legislative bodies in British India was introduced
under the Indian Councils Act, 1909, passed under the popular reforms known as Morley-Minto
Reforms. However, they were not chosen by the common people of India, but by the special
constituencies like the universities, municipalities, district and local boards, chamber of commerce
and trade associations and groups of people such as landholders or tea planters. For the first time,
the elected members constituted the majority in each of the Houses by the Government of India
Act, 1919. Although the 1919 Act provided for direct elections from the constituencies to both the
Houses, only a limited number of persons were granted the right to vote and even they had to satisfy
certain high qualifications like ownership of property, or payment of income tax or municipal tax, or
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the holding of land.
Issues of Right to Vote
All the aforementioned grounds of disenfranchisement cannot be justified in any democracy.
With such prohibitive laws, a society cannot be democratic. Right to vote is the most basic act of
democratic participation. Though India has now adopted universal adult franchise and we do have
a right to vote, the issue comes back to the same problem that we may not get an opportunity to
exercise this right due to absence from constituency owing to travel, education or migration to other
places. Giving citizens a right to vote but denying them an opportunity to exercise this right is equal
to denying them the very right to vote. If voting is a right guaranteed by the constitution and is at the
same time limited by the idea of ‘residence’, does it and shall it still apply in the virtual world?
Constitution of India and Democracy
The drafters of the constitution took a very bold step to adopt ‘universal adult suffrage’,
notwithstanding the fact there were millions of illiterates in the country. It was a well thought over
step to make democracy broad based. It was aimed at covering all those left out from the ambit of
democratic participation, in order “to base the system of government on the ultimate sanction of the
people. If the constitution makers had introduced property and education qualifications for exercising
the franchise, it would have resulted in denial of the democratic principles, disenfranchising a large
number of people like labourers and cultivators who have equal right of representation. In this
segment, the study will look into the emergence and evolution of broad based democracy in India.
The segment will analyze the relation between democracy and elections and move on to discuss the
emphasis the constitution makers put on equality and how equality would stand meaningless without
adult suffrage.
There is a difference between ‘democracy’ and ‘democratic participation’ and both the
concepts are interestingly intertwined. Democracy entails the twin principles of popular control over
collective decision making and equality of rights in the exercise of that control. So the extent of
democracy depends on the extent of democratic participation, which is indicted by the control of
people through universal suffrage system. But if a state fails to provide its citizens the equality of
rights to use such control over decision making, how can that state be called democratic? A political
system cannot be called democratic unless it incorporates the political instruments and institutions
needed to give expression to this democratic culture.
Elections are the most important and effective tool for political participation as they allow
ordinary people to choose their own representatives. Right to vote is just the most basic step towards
public participation in building democracy. According to the International Institute for Democracy
and Electoral Assistance (IDEA), the process of designing an electoral system may be enhanced by
formulating a list of criteria that reflects what a particular society aims at achieving, what it aims to
avoid and how it wants its democratic institution to look like. Thus, the kind of electoral system a
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society chooses for itself impacts the manner in which its democratic institutions shape up.
Alternative Ways of Ascertaining Right to Vote
Now I propose and analyse the alternative ways that have been adopted to ascertain voting
right in India and abroad.
A.
COMPULSORY VOTING
Compulsory voting has been considered in many countries but only few implement the
law and fewer provide for punitive action for failing to vote. Belgium was the first country to make
voting mandatory in 1892. In India, Gujarat has emerged as the first state in the country to make
voting compulsory in elections to local authorities. The Bill (Gujarat Authorities Laws) was passed
by the state Assembly on 19th December, 2009, and is termed by the government as a pioneering
move at making democracy more representative and meaningful. It requires all registered voters in
Gujarat to vote and those absent will be summoned by the local election officer and asked to submit
a valid reason for failing to vote within a month. However, the Bill provides exemptions to those who
cannot vote because of illness or due to absence from state or country. There is also an exemption
for those who can provide valid and sufficient reason-which are yet to be prescribed. In case a voter
feels he has been wrongly penalized, he can appeal to an Appellate Officer designated by the State
Election Commission.
There are certain aspects that may need consideration in case of Gujarat’s compulsory
voting. Firstly, at any given time, a good number of people from rural and small town India are away
in the bigger cities in search of livelihood or to pursue business options. Secondly, a large number
of Muslims have fled their homes in the aftermath of communal riots following Godhra incident and
are yet to return. Thirdly, the Bill is ambiguously worded. It mandated registered voters to vote, but
it does not specify if the process of registration is compulsory. If the latter is the case, a person not
wishing to vote may simply not register.
Beyond increase in voter turnout, there are other arguments supporting compulsory voting.
It is noted that the role of money may lose its importance as politician won’t need to spend on
large campaigns for persuading people to come to polling booths. Mandatory voting will involve
proactive participation from the voters, making them better informed. This would further reduce the
risk of unstable government and related crises. However, if increasing voter turnout is the ‘object’
of promoting mandatory voting, it is difficult to be convinced whether mere increase in number of
voters is commensurate with democratic principles.
Indeed, the idea behind the Bill is innovative in the Indian context and should not be
criticized simply because it tries to strike a balance between a citizen’s right and duty to ensure that
the principle of majority rule that forms the foundation of our democracy is not weakened. However,
there is a general notion that voting is a civic right rather than a civil duty. Also, right to vote comes
with the right not to vote. So if people do not turn up to vote on election day, do they not exercise
their right not to vote? It is true that candidates and parties with less than 25% of the total votes have
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been in power for over the years because large numbers of people have not exercised their franchise.
The person representing a constituency at any level of governance, form a village panchayat to the
Lok Sabha, is actually endorsed by 12 to 14% of the voters. It does not speak well of our democracy
and raises serious question about the representative nature of our ‘elected’ bodies. There has to be
some reason for the remaining voters to abstain from voting. While some just do not care about
exercising their franchise, others are often not in a position to exercise their franchise.
Today, governments have to provide security forces and carry out air surveillance at the voting
booths in sensitive areas of the North East and Jammu-Kashmir. There have been many incidents
of militants targeting voters, despite the army protection. Does the state take the responsibility of
voters’ life while it forces the voters to vote? These governments should also consider the fact that
if, in spite of attacks on voters, the naxal-infested areas can show a big turnout, it is obvious that
these people know their right and they desire to exercise it against all odds. Recent polling figures
in Jharkhand underline the point. Another aspect of non-voting that the governments will have to
address is the lack of awareness regarding importance of voting. Making voting compulsory could not
be the most accurate solution to this problem. Those who do not care about their role in governance
may randomly vote without putting much thought; simply to complete one duty and evade penalty.
Thus, voters should be ‘persuaded’ to vote, not ‘coerced’. Forcing people to cast their ballots is at
odds with the idea of free will, and therefore with the idea of democratic choice.
Government keen on increasing voter turnout should first work on providing means
to exercise the right. So those who want to vote should be able to vote. Before making voting
compulsory, facilities to cast vote should be given and guaranteed. The government should facilitate
voting procedures which can boost the turnout rate further. Instruments voting procedures which can
boost the turnout rate further. Instruments like voter friendly registration process and easy voting
procedures can also increase the turnout.
B.
VOTERS’ RIGHT TO RECALL
After making it compulsory to vote in the local body elections, the Gujarat government is
now mulling another Bill that empowers the voters to recall non-performing local representatives.
Once the bill goes through the Assembly, the District Collector will have the power to remove any
elected local body representative and order a re-poll if one third of the electorate lodges a complaint
and the Collector finds substance in it. Elected representatives can, however, serve first two years of
their five year term before they can be recalled.
C.
NEGATIVE VOTING
Negative voting, voters are provided with an additional option that reads ‘none of the above’,
appearing below the names of the candidates on the Electronic Voting Machines (EVM). It can be an
effective tool to let the voters express their lack of confidence in all the candidates on a ballot. Under
the existing provisions of Sections 49(O) and 128 of the RPA, if a voter, after coming to a polling
booth, does not want to cast his vote in favour of any candidate on the list, he/she has to inform the
presiding officer about his/her intention of not voting. The presiding officer shall then make an entry
in the relevant rule book after taking the signature of the said voter. Thus, though there is a provision
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for negative voting, it denies the voter to cast his negative vote in secrecy, which defeats the ‘secret
ballot’ concept.
The Election Commission of India has also been advocating negative voting and has
recommended that ‘none of the above’ option be included in EVM’. Unfortunately, the Government
of India has not approved of the proposal and has been objecting to the demand of negative voting
before the Supreme Court. With significant legislative activism, a lot is still to be done to achieve the
desired results on voting rights. However, proposing bills in the Parliament may not always bring
in the aspired change in law and legal system. Judiciary often plays an effective alternative role
when the Parliament fails. Considering this role of judiciary, the study discussion several judgments
through which Indian courts have interpreted the right to vote.
Right to Vote a Part of Human Right
Apart from the constitutional, legislative and judicial perspective, the current limitations
in election law in India contradict the principles of human rights. Several international conventions
have considered voting rights from the human rights perspective. Some efforts have been made by
the Indian government on these lines. In order to safeguard the economic and other interests of the
migrant laboures, the government has already enacted the Inter State Migrant Workmen Act 1979.
Migration has become a part and parcel of life and should be taken seriously. It should not stand
as a limitation on the right to vote, nor must it be an excuse for denying facilities that provide the
opportunity to exercise the right.
Voting Beyond Boundaries
In the true sprit of Indian democracy, it is imperative that the country now explores and
expands the alternative voting system to allow all Indian citizens to exercise their right to vote. The
best practice that prevails in different parts of the world demonstrates that governments need to make
substantial efforts to ensure greater participation of their citizenry in the electoral process. The need
for inclusive voting is felt around the world. A number of developed countries implement various
forms of absentee voting, such as Internet voting (Switzerland, the US, France etc.) proxy voting (the
Netherlands) and postal voting, which has emerged as the most popular form of absentee voting.
I just want to discuss some alternative voting method used worldwide and their applicability
in the Indian scenario.
Postal Voting
The electoral process of postal vote or vote by mail begins when ballots are mailed to the
registered voters about three weeks prior to election day. After marking the ballot the voter puts it in
a secret envelop and covers this secret envelop with a mailing envelop.
India does have a limited form of postal voting, but it is not accessed by enough people
to create a meaningful impact towards making the electoral process more inclusive. For instance,
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special voters (the President of India, the Vice President, Governors amongst others), service voter
(armed forces, members of a forces, members of a force to whom the Army Act applies), voters on
election duty (polling agents, polling officers et. Al.); and electors subjected to preventive detention
are entitled to vote by post in a parliamentary or assembly constituency but still leaves out a large
number of people who have difficulties exercising their right to vote.
Postal voting will eliminate the pain of waiting in line at the poll booth for hours. It also eliminates
the confusion of where to go to vote. It can reduce the election administration cost and the incidents
of mal-functioning of voting machinery. The hassle free procedure can eventually result in increased
voter turnout. Postal voting is very popular in the UK, which has witnessed explosive voting turnout
since 2001, when postal voting was made available to any one on demand without having to give
reasons for making it to the poll booths on election day. However, there are chances of voters being
intimidated by the party workers threatening the voters to sign their way. Evidence indicates the
possibility of forging application forms and postal ballots. Post offices have also been blamed to have
lost the postal votes or delivering it after the counting. The postal voting lengthens the time to count
the votes, as the delivery of postal ballots continues beyond election day.
Thus, the system is prone to abuse but strict measures and effective control can help avoid
similar incidents.
Proxy Voting
Proxy voting also known as delegated voting is an alternative voting method by which a
registered voter unable to vote on the election day can nominate another person to cast vote on his/
her behalf. This measure is limited to Indian soldiers and has proven helpful particularly to soldiers
posted in remote parts of the country. Though some servicemen have reported that the proxy voting
procedure is too cumbersome, the military authorities have confirmed positive response to the new
voting system, with almost 68% soldiers applying to vote through proxy. It may not fit into the
brackets of assured secrecy and trust, and thus could be violative of electoral rights. In some Arab
countries, owing to the cultural context, proxy voting has often been turned into ‘family voting’,
where a male member of the family votes as a proxy for the females of the house.
Internet voting
No ink shall be wasted on listing the role of internet in our every day life. While we use
Internet from mere emailing to e-banking, it is unfortunate that we are hesitant to explore the option
of e-voting. Without any doubt, internet voting is the quickest and efficient way of casting a vote. It
will cut down the huge costs of maintaining poll booths, as the number of people crowding into them
could drastically fall. Counting of votes can be quicker and faster and may also eliminate the need of
recounting. But the internet is prone to hacking and this problem is here to stay. The biggest abuse in
this method of voting is a Denial of Service (DOS) attack.
Phone Voting
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Short Message Service (SMS) or telephone voting can also be looked at as an option to be
explored. Experts, who are conversant with this system, need to carefully address the technical issue
and problems that may be involved in this method. If the system is developed for telephone voting
where a voter calls and register his vote, the interactive voice system should be as user friendly as
possible. If the system is formatted in an effective way, either for SMS or telephone voting, it would
reach more masses in many corners of India where internet has not yet penetrated.
Recommendations
The urgent need for change in voting rights has been emphasized and relevant
recommendations have been proffered to achieve the goal of inclusive electorate. The following are
the specific recommendations.
1.
2.
3.
4.
5.
Amendment of RPA, 1950 to broaden the definition of ‘ordinary residence’.
Framing of rules under RPA (Amendment) Act 2010 and issue of instruction to
Indian Embassies.
Improving the access to voting of persons belonging to SCs/STs/OBCs and
minorities.
Amendment of RPA to ensure voting rights to under trail prisoners. Bridge
gender gap in voting and also mount imaginative multimedia campaigns to
enthuse voters.
Introducing the option of negative voting.
Conclusion- The proposed expansion will need to carefully consider the issue relating to
the security and integrity of the electoral process, the need for ensuring secret ballot, availability
of checks and balances to ensure the proper implementation of the various systems, efforts to
reduce and progressively eliminate the abuse of those systems, complexity of the logistic and
other manpower and resources requirement of ECI and state electoral apparatuses.
Implementing the above methods will necessitate through preparation, in addition to
many other legal and policy issues that crop up when an electorate of 700 million goes to the
polls. But these challenges, formidable as they are, should not discourage India as a mature
democracy from moving towards developing a wider framework for implementing the right
to vote through one of the above or a combination of above proposed voting system and other
policies that will increase the political participation of people in the electoral process. As Mr.
Naveen Jindal,
Hon’ble Member of Parliament, has argued, “the depth of democracy
depends crucially on the dimension of participation. India already has robust competition among
political parties but it is participation aspect where a lot more needs to be achieved”.
The problems with implementing a more inclusive electoral system and the potential
abuse of absence voting should not deter the Indian government from ensuring that the right to
vote of every Indian citizen is duly enforced. The purpose of this study is to make the electoral
process in India far more inclusive and far less cumbersome, such that each and every Indian is
able to exercise not only right to vote, but also have the opportunity to vote.
280
REFERENCES
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2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Chatterjee, Partha. 2004. The Politics of the Governed, New Delhi; Permanent Black.
Dunn John. 2005. Democracy : A History, New York; Atlantic Books.
Jain, M. P. 2009. Outlines of Indian Legal and Constitutional History.
Jayal Ayesha. 1995. Democracy and Authoritarianism in South Asia, Cambridge;
Cambridge University Press.
Jayal, Nirja Gopal. 2006. Representing India, London; Palgrave McMillan.
Kaviraj, Sudipta. 2003. A State of Contradictions, Cambridge; Cambridge University
Press.
Keane, John. 2009. The Life and Death of Democracy, London; W.W. Norton &
Company.
Khilnani, Sunil. 1997. The Idea of India, New York; Farrar Straus Giroux.
Klingemann, Hans-Dieter. 2009. The Comparative Study of Electoral System,
Oxford; Oxford University Press.
Kohli, Atul (ed.). 2001. The Success of India’s Democracy, Cambridge; Cambridge
University Press.
Mehta, Pratap Bhanu. 2003. The Burdon of Democracy : Interrogating India, New
Delhi; Penguin Books.
*****
281
Notes & Comments
Right To Information: The Law And The Judicial Approach
Dr Sanjeev Kumar Tiwari1*
Freedom of speech is the lifeblood of democracy. The free flow of information and ideas
informs political debate. It is a safety valve. People are more ready to accept decisions that go against
them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public
officials. It facilitates the exposure of errors in the governance and administration of justice of the
country.
A popular government without popular information or the means of obtaining it is but a
prologue to a farce or tragedy or both. The Citizens’ right to know the facts, the true facts about the
administration of the country is thus one of the pillars of a democratic state. This is the reason why
the demand for openness in the government is increasingly growing in different parts of the world.
People can play an important role in a democracy only if it is an open government where there is
full access to information in regard to functioning of government. Enlightened and informed citizens
would undoubtedly enhance democratic values.
In Romesh Thapar v. State of Maharastra2 the Supreme Court had observed that freedom
lay at the foundation of all democratic organizations, for without free political discussion on public
education, the proper functioning of the processes of popular government is not possible. A freedom
of such amplitude might involve risks of abuse. But it is better to leave a few of its noxious branches
to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the
proper fruits.
In State of Uttar Pradesh v. Raj Narain3, the Supreme Court observed that freedom of speech
and expression includes right to citizens to know every public act, everything that is done in public
way, by their public functionaries. In a government of responsibility, where all the agents of the
public must be responsible for their conduct, there can be but few secrets. The people of this country
have a right to know every public act. They are entitled to know the particulars of every public
transaction in all its bearing.
In Dinesh Trivedi v. Union of India4 the Supreme Court also held that freedom of speech
and expression includes right of the citizens to know about the affairs of government. In S.P Gupta
v Union of India (1981 Supp SCC 87), the Supreme Court held that right to know is implicit in right
to free speech and expression. Disclosure of information regarding functioning of the government
must be rule.
1
2
3
4
Head (law Dept) Burdwan University
( AIR,1950 SC 124),
(1975,4 SCC 428)
(1997, 4 SCC 306),
*
282
The Supreme Court in the case of Secretary/ Ministry of information and Broadcasting,
Government of India v. Cricket association of Bengal5, narrowly expanded its view on the provision
of Article 19 (1) (a) towards the right to information. It held that the right to freedom of speech and
expression includes the right to receive and impart information. For ensuring the free speech right of
the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and
a range of opinions on all public issues.
Voter’s Right To Information
In people’s union for Civil Liberties v. Union of India6 the Supreme Court observed that the
foundation of a healthy democracy is to have well informed citizen voters. The reason to have right
to information with regard to the antecedents of the candidate is that voter can judge and decide in
whose favour he should cast his vote. It is voter’s discretion whether to vote in favour of literate
or illiterate candidate. It is his choice whether to elect a candidate against whom criminal cases for
serious or non-serious charges were filed but is acquitted or discharged. he must have necessary
information so that he can intelligently decide in favour of a candidate who satisfies his criterion for
election as M.P or M.L.A. Hence the right to participate in casting vote at the time of election would
be meaningless unless the voters are well informed about all sides of issues, in respect of which they
are called upon to express their views by casting their vote.
In Peoples Union for Civil Liberties v. Union of India7, the Supreme Court said that for
the first time the firs time right to know about the candidate standing for election has been brought
within the sweep of article19 (1) (a) of Constitution. There can be no doubt that by doing so, a new
dimension has been given to the right embodied in Article 19 (1) (a) through a creative approach
dictated by the need to improve and refine the political process of election. The voters’ right to know
about the antecedents of the candidate contesting for election falls within the realm of freedom of
speech and expression guaranteed by Article 19 (1) (a) and can be justified on good and substantial
grounds.
Besides, the Government of India in 2002 became more sensitised on the right to information.
The Representation of the people Act 1951 was added with two new provisions—section 33A and
section 33B. Section 33A provides that besides other information a candidate has to furnish as to
whether he is accused of any offence punishable with imprisonment for two years or more in a
pending case and whether he has been convicted of an offence and sentenced to imprisonment for
one year or more. The candidate or his proposer shall also deliver to him an affidavit sworn by the
candidate verifying the above information.
In the matter of T.N. Seshan, CEC of India v. Union of India8, the Supreme Court observed
that the Preamble of our Constitution proclaims that we are in a Democratic Republic. Democracy
5
6
7
8
1995, 2 SCC 161
AIR 2003 SC 2363
AIR 2003 SC 2363
1995, 4 SCC 611
283
being the basic structure of our constitutional set up, there can be no two opinions that free and fair
elections to our legislative bodies alone would guarantee the growth or healthy democracy in the
country. Hence the right of a voter to know the bio-data of a candidate is the foundation of democracy.
The Right To Information Act 2005
It is apparent from the opinions and observations of Supreme Court that India was in need of
law one the right to information. The Law Commission of India’s 179th Report and reports of number
of Committees and councils working on this subject sensitised the government of India to enact a
specific law on the right to information. Likewise in 2005 the right to Information Act was passed by
the Indian parliament.
Meaning Of Information:
Information means any material in any form including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information relating to any private body which
can be accessed by a public authority under any other law for the time being in force but does not
include “file notings”
Meaning Of Right To Information:
Right to information includes right to—
(1)
inspect works, documents records,
(2)
to take notes, extracts or certified copies of documents or records,
(3)
take certified samples of material,
(4)
obtain information in form of printouts, diskettes, floppies, tapes video cassettes
or in any other electronic mode or through printouts.
The Act in its Preamble says to provide for setting up the practical regime of right to
information for all citizens to secure access to information under the control of public authorities
in order to promote transparency and accountabilities in the working of every public authority. The
whole Act is in light of democratic approach of participating government.
The Act has made provisions for constitution of Central Information commission and State
Information Commissions for the respective states as the appellate authorities. On the perusal of
the whole Act, it is inferred that the statutory provisions are made for the right to information and
all citizens possess such right. The information includes any mode of information, in any form of
record, document, e-mail, circular, press releases, contact, sample electronic data etc.
The welcome provision under the Act is that the information can be obtained within 30
days from the date of request in normal case and if the information is a matter of life or liberty of a
person, then it can be obtained within 48 hours from the time of request. No such strong provision
284
has been made in any Act or code in India till date. The right to information covers inspection of
work, document, record and its certified copy and information in form of diskettes, floppies, video
cassettes in electronic form, tapes or stored-information in computers etc. Though certain information
is prohibited every public authority is under obligation to provide information on written request or
request by electronic means with payment of fee. The Act vehemently provides for restrictions for
third party information. The appeal against the decision of Central Information Officer and State
Information officer can be made to a senior officer in rank. The penalty for refusal to receive an
application for information or for not providing information is Rs 250 per day but the total amount
of penalty should not exceed Rs 25,000.
The judicial intervention is prohibited, that is the Court has no power to entertain any suit,
application or other proceedings in respect of any order made under this Act.
The Act provides for rule-making power for both Central Government and State
Governments and such rule shall be laid before Parliament in case of Central Government and in the
State Legislative Assemblies in case of State Governments. In the Second Schedule of the Act the
information pertaining to some restricted organizations are prohibited.
Thus it can be by said that Right to information Act 2005 is a Parliament’s obvious concern
to strengthen the law of citizens’ right to information.
Should Right To Information Have Been Included As Fundamental Right Instead Of
Statutory Right?
The ideal status the right to information deserves is that of a fundamental right under the
Constitution. It should have been included in Part III of the Constitution rather than as a statutory
right. This is because the spineless politicians are going to amend the Act as and when they like
it, suiting their needs of the day. Had the right to information been a fundamental right, the fear of
Public Interest Litigation would have kept a check on the notoriety of the politicians and authorities.
The nature of problem the Right to Information Act has faced till date ranges from administrative
interpretation against grant of requested information to ordinary and easy amendment to reduce
the scope of the Act. These problems would not have arisen had the right to information been a
fundamental right.
The Legislature should have brought about a Constitutional amendment to include the right
to information as a fundamental right and the Act should have merely constituted the information
commissions and appointed the public information officers. With the separate government agency
to tackle the problems relating to fundamental right to information the evil of bureaucratic pressures
and whimsical administrative interpretation could have been kept at bay and democracy celebrated.
More over inclusion of right to information as a fundamental right would also have been in conformity
with the decisions of the Supreme Court.
*****
285
Assigned To Evolve, Compelled To Crumble But Destined To Dictate,
Defend And Deliver : Indian Constitution Under Trial
Dr. Shiv Shanker Vyas1*
Sankalp Tyagi2**
When Brazen defiance of once is considered as coquettish submission, when ideals of once
are considered as mediocrity, when rejected and dejected opinions of once are established as selfevident facts; it means something immortal yet real and practical is in making.
When an issue of law or Constitution comes before the court, it is not alone the law or
the facts which are tried but Constitution itself is also tried. Our Constitution has been
tried hundreds of times, but it is really surprising that our constitution immortalized in
such a young age that it does not appear old and outdated.
As we all know that there was some drizzling when our constitution was implemented on
January 26, 1950. It was considered as good sign for the nation and for constitution itself (it will be
discussed later on). However it may be called as superstitious and against the scientific perceptions.
But one thing is for sure that in coming 25 years no stone was left unturned to defy the superstition
and to prove that the constitution was in perils.
As constitution may be construed as a document agreed upon by creditors and debtors.
Creditors are ‘we the people’ to whom and by whom it was adopted and enacted. Debtors were then
future government, legislature and executive; collectively called Parliament, which had to take care
of ‘we the people’ (creditors). Our constitution has faced a time when attempts were made to debase,
deface and wind up the constitution when it tried to serve the least privileged of the society. But our
constitution was destined to defend and deliver more than what we initially expected from it.
Constitutional Mandate : Initial years
When A.K. Gopalan encountered (not in a literal sense) with police and our Supreme Court
encountered with A.K. Gopalan v. State of Madras3, nation witnessed a great change in the attitude
of executive and got perplexed regarding the distinction between British Rule and Local Rule.
Everybody was in a fix whether Indian rule was distinction without difference to British rule or
something more than that. As the discussion between Mahavir Tyagi and Bhimarao Ambedkar in
Constituent Assembly reflects:
1 * Assistant Professor, SGN Khalsa Law PG College, Sriganganagar
2 ** Legal Officer, Reserve Bank of India, Central Office Mumbai
*Views Expressed are individual opinions and do not reflect opinion of Reserve Bank of India. Reserve Bank of India
is not responsible for any of the facts and opinion referred in the article any manner.
3
1950(AIR 1950 SC 27
286
Shri Mahavir Tyagi (UP General): ‘Sir, Dr. Ambedkar will please pardon me when I express
my fond wish that he and other members of the Drafting Committee had experience of detention in
jail before they became members of drafting committee:
The Hon’ble Dr. B.L. Ambedkar: ‘I shall try thereafter to acquire that experience.’
Shri Mahavir Tyagi: ‘I may assure Dr. Ambedkar that although the British government
did not give him this privilege, the constitution he is making with his own hands will
give him that privilege in his life time.
As we all know, the Supreme Court took a literal view of Article 21 and upheld the validity
of Article 22. Majority did not agree with the forceful argument of M.K. Nambiar, Champion of
fundamental Rights, who was arguing for A.K. Gopalan, a freedom fighter and social reformist.
But practically Supreme Court might have its own reservations to agree with Mr. Nambiar.
Earlier this contention was rejected though with a narrow margin by drafting committee because
of long intercontinental chain of influences. As drafting committee was influenced by B.N. Rao,
Constitutional Adviser. B.N. Rao was influenced by Justice Felix Frankfurter. Felix Frankfurter was
influenced by his Law teacher James Bardley Thayer4. James Bardley Thayer was not happy with
the interpretation of 5th Amendment of the constitution of USA by US Supreme Court. But Justice
Fazal Ali delivered minority judgment and construed Article 21 on the line of due process of law.
As I initially stated in the title of the article, constitution of ours was assign to evolve, but a golden
opportunity was wasted; now we had to wait for another chance which might come or might not.
Word ‘Minority’ as it was observed by justice Quadri that “’a non-dominant’5 group but in that case
I think this was minority judgement only because of lack of number force and not in any other sense.
As everybody else saw this judgemnet as lightning bacon for coming generations. But now we can
say why drizzling was desired when constitution was implemented because if we disseminate seed in
the soil we need immediate drizzle for seed to flourish and Fazal Ali sowed the seeds of right to life
and personal liberty, independent of artificial leniency and mercy of state but as a right earned after
the long battle fought against state. Our Constitution started to evolve when discussions got started in
bar, and bench after the Gopalan Judgement. But time came when Supreme Court in Maneka Gandhi
v. Union of India6 accepted the rejected arguments of M.K. Nambiar and opinion of Justice Fazal Ali
delivered in Gopalan case.
Journey from evolution to revolution:
Sankari Prasad v. Union of India7, cannot only be considered merely a dispute between
Individual and State (eminent domain), rather it was more than that. It was a dispute between
continuous and never ending battle between ‘Individualism and Social reformism’ and metaphysically
that was represented by Bentham and his disciples against Kamte and Duiguit and adjudged by then
4
5
6
7
The Indian Constitution: Cornerstone of a Nation by Granville Austin
T.M.A. Pai Foundation v. State of Karnatka 2002 (8) SCC 481
AIR 1978 SC 597
AIR 1951 SC 458
287
positivist judges. As whenever any lawyer argues before the court, he not only argues for the client
but he always is an extended version of some philosophical thought. Then came the judgement of
Supreme Court in Sajjan Singh v. State of Rajasthan8, in which Supreme Court reiterated the reasoning
delivered in Sankari Prasad v. union of India, but this time the impact of reasoning was emasculated
as two out of five judges, justice Hidayatulla and Justice Madholkar did not agree with majority
opinion as well as each other’s opinion though finding were similar. Again different seeds labeled
for different time maturity were disseminated by the dissenting judges. One got matured soon in the
year of 1967 when in Golak Nath v. State of Punjab9 Chief Justice accepted all the reasoning and
rational relied by justice Hidayatulla in Sajjan Singh case. That immortal drizzling was relentlessly
helping the seeds to flourish. But then some attempts were made to make the judgement inoperative.
Constitution was amended to negate the judgement delivered in Golak Nath case. It was almost
compelled to cripple and crumble on the knees. But then time came for the maturities of another
seed sew by justice Madholkar in 1965. Now the time came to see the fruits of honestly nourished
seed and we saw the landmark judgement in Kesvanada Bharti Case. This was the case, in which
Supreme Court of India evolved its own jurisprudence, never appeared as apparently and expressly
earlier in any case. It was like Poet Byron once said when he first time had an income he says he felt
as independent as ‘a German Prince who coins his own cash, or a Cherokee Chief who coins no cash
at all, but enjoys what is more precious, Liberty’10. . Rather I would use word ‘Liberation’; Liberation
from all practical, impractical theories, liberation from contradictory dogmas prevailing at that time.
After the most historical and celebrated judgment, there were rumours to liquidate the
constitution and go into the public for referendum. Here I would like to recall the genius of Rousseau,
who three centuries back, reiterated that ‘representative democracy’ may not represent the will of
public adequately but it is better than ‘direct democracy’ which runs on populist hangman Psyche.
Guardian of Secular rights:
India has witnessed four major communal riots in last 60 years; what was desired and what
was desirable. First was during the partition, second was after martyr of Mrs. Indira Gandhi, third
was after the demolition of Babri Masjid and last was after Godhara incident, in Gujrat. Though
the impact among the general public was same in all four but if we try to trace the reasons behind
the riots, we will find noticeable difference in these riots. As first was reactionary and could not be
stopped because of lack of state machinery. But other three erupted where all the machinery was
functioning. It was the time when state had to take the responsibility of the riots. Again the time
came to show the world that ‘we the people’ of India were not only condemned the activities of
rioter but seriously took steps to make state more responsible and accountable and we can proudly
say that Supreme Court in S.R. Bommai v. Union of India11 perspicaciously and lucidly declared
‘Secularism’ as part of Basic structure; one more diamond in the crown. Our Apex Court not only
demarked between desired and desirable but elaborately described that both, sometimes, can be
8
AIR 1965 SC 845
9
AIR1967 SC 1643)
10
Bartend Russell:History of Western philosophy page 677
11 AIR 1994 SC 1918
288
even on opposite poles. We proudly rejected utterly fallacious argument offered by John Stuart Mill
that the only things visible are things seen, the only things audible are things heard, and similarly
the only things desirable are things desired. But Bertrand Russell rightly points out that ‘a thing
is ‘visible’ if it can be seen, but ‘desirable’ if it ought to be desired. Thus ‘desirable’ is a word
presupposing an ethical theory; we cannot infer what is desirable from what is desired’. As Ernest
Barker has rightly remarked that “it is better that leaders should represent and execute peoples’ will,
though inadequately rather than Facism where people represent and execute the will of leaders12.
Our constitution once again defended and delivered when it mattered most.
While summing up we can proudly say that our Constitution has all the colours but does not
have chameleonic effect. It sets great ideals yet it is real. It is the highest order of nation yet works
for the poorest of the person. It was torn many a time but still came out with new embellishments.
*****
12
Reflections of Government (1942)
289
Honour Killing- A Social Evil
Dr. Binay Kumar Das1*
An honour killing is the “Murder” of a member of a family or social group by other members,
due to the belief of the perpetrators that the victim has brought dishonour upon the family or
community. It is different from Mercy Killing, Dowry Death or S,ati. It may be defined as a death that
is awarded to a woman of the family for marrying against the parent’s wishes, having extramarital
and premarital relationships, marrying within the same gotra or outside one’s caste or marrying a
cousin from a different caste.
Supreme Court’s View:
On 19th April 2011, Hon’ble Justice Markandey Katju and Gyan Sudha Mishra of Supreme
Court has directed state Governments to ‘ruthlessly’ stamp out so-called honour killings and wamed
that officials who fail to deal with the practice would be prosecuted. Last year Home Minister P.
Chidambaram also assured the nation that he would present a bill in parliament which will provide
specific, severe penalties to curb such killings.
Hon’ble Justice Ashok Bhan and Markandey Katju of Apex Court in 2006 observed “the
Caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing
the nation at a time when we have to be united to face the challenges before the nation unitedly.
Hence, inter caste marriages are in fact in the national interest as they will result in destroying the
caste system. However, disturbing news is coming from several parts of the country that young men
and women who undergo inter caste marriage, are threatened with violence, or violence is actually
committed on then. In our opinion, such acts of violence or threats or harassment are wholly illegal
and those who commit them must be severely punished. This is a free and democratic” country, and
once a person becomes a major he or she can marry who so ever he/she likes. If the parents of the
boy or girl do not approve of such inter-caste or inter-religions marriage the maximum they can do
is that they can cut-off social relations with the son or the daughter, but they cannot give threats or
commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or
inter religious marriage. We therefore, direct that the administration/police authorities throughout the
Country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious
marriage with a women or man who is a major, the couple are not harassed by anyone nor subjected
to threats or acts of violence, and anyone who gives such threats or harasses or commit acts of
violence either himself or at his instigation, is taken to took by instituting criminal proceedings by the
police against such persons and further stem action is taken against such persons as provided by law.
1
*
Reader, ULC, Utkal University, Bhubaneswar, Odisha
290
We sometimes hear of ‘honour’ Killings of such persons who undergo inter-caste or inter-religious
marriage of their own free will. There is nothing honourable in such killings, and in fact they are
nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who
deserve harsh punishment. Only in this way can we stamp out- such acts of barbarism.” (Lata Singh
v. State of UP, AIR 2006 S.C.2522 at’Page 2525 para 17 and 18).
Paternal Caste Predominates:- On the one hand it is being adumbrated that the ‘caste system
is a curse,’ so ‘sooner it is destroyed the better’ because it is ‘dividing the nation’ when we have to be
‘united to face the challenges before the nation unitedly’. Therefore ‘inter caste marriages’ are in fact
in the ‘national interest as they will result in ‘destroying the caste system’. On the other hand while
interpreting the personal law the Apex Court has held that “the Caste system in India is ingrained in
the Indian mind. A person, in the absence of any statutory law, would inherit his caste from his rather
and not his mother even in a case of inter-caste marriage.” [2003 AIR SCW 5149 para 27]
Hon’ble Justice H.K. Sema and Dr. A.R. Lakshmanan of Supreme Court in Anjan Kumar
is U.O.I, propounded that “the offshoots of the wedlock of a tribal woman married to a non-tribal
husband -forward class (Kayasth) cannot claim Scheduled tribe status.” [2006 AIR 2006 S.C.1177]
An Indian child will be inheriting cast from his rather not mother. What if she is an unwed
mother and don’t know the name of the child’s father? Women will be of caste of his father and after
marriage of his husband. Your caste and religion depends on the caste/religion of your father. One
may change his/her religion but not the caste. If judicial interpretations are not inclined to accept
gender justice, how the seeds of social justice will see the light of day?
Legal consequences of Inter-caste marriage:- Shockingly enough in a secular country like
India the basic law governing the inter-religious marriages under the Special Marriage Act, 1954
directly or indirectly discourages inter religious marriages in Chapter IV ‘consequences of marriage
under this Act’.
According to Section 19 “the marriage solemnized under this Act of any member of an
undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect
his severance from such family.”
The law grants freedom to Hindu (Buddhist, Sikh or Jain) who is member of an undivided
family to marry with man/woman of any other religion but from the day of marriage their all relations
with the family will automatically sever. It indirectly creates a barrier and announces that we will
not allow your non-Hindu wife or husband in our family. You make take your share in the undivided
family property, if any, and get lost.
Hon’ble Supreme Court in confirmation has also advised “if the parents of the boy or girl
do not approve of such inter-caste or inter-religions marriage the maximum they can do is that they
can cut-off social relations with the son or the daughter” and rightly cautioned that “they cannot give
threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter
caste or inter religious marriage”.
291
In a traditional society with rigid caste system, which plays a very significant role in the
selection of spouse in mamage it is impossible to think of marriage beyond the own caste or religion.
Law Commission’s View:
To tackle the menace of ‘honour killings’, the Law Commission has proposed legislation to
prosecute persons or a group involved in such endangering conduct and activities.
The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution
and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate
R.Venkataramani, has been discussed and approved by the Commission, which is headed by Justice
P. Venkatarama Reddi. It is expected to be released shortly for comments.
The Commission has turned down the demand for introducing a clause in Section 300 of the
Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There
is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within
the ambit of this provision. The addition of such a clause may create confusion and interpretalional
difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to
overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined
the honour of the caste or community.”
The idea behind the provisions in the draft legislation is that there must be a threshold bar on
congregation or assembly for discussing and condemning the conduct of young persons above the
age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not
prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have
no right to interfere with the life and liberty of such young couples and they cannot create a situation
in which such couples are placed in a hostile environment in the village/locality concerned.
Under the proposed law, “the act of endangerment of life and liberty shall mean and include
any manner of acts of threat, encouragement, commending, exhorting and creating an environment
whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of
measures such as social boycott, deprivation of the means of livelihood, denial of facilities and
services which are otherwise generally available to the people of the locality concerned and (b)
directly or indirectly compelling the persons concerned to leave or abandon their homestead in the
locality.”
“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the
intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between
two persons of majority age in the locality concerned on the basis that such conduct or relationship
has dishonoured the caste or community or religion of all or some of the persons forming part of the
assembly or the family or the people of the locality concerned.”
It shall be presumed that any person or persons found to be part of the unlawful caste
assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall
292
be treated as an unlawful assembly and those present in it shall be punished with impnsonment for a
period of not less than three years and extending up to five years and a fine of Rs.30,000.
The draft legislation says: “Any person or persons instrumental in gathering of such an
assembly or who takes an active part in the execution of the assembly shall also be subjected to civil
sanctions,” viz., they will not be eligible to contest any election to any local authority and will be
treated as a disqualified candidate.
However the recent change in the marriage pattern in India show increase in inter-caste
marriages particularly in economically developed states like Punjab, Haryana, Assam and Maharashtra
but inter-religious marriages are still not encouraged. In states like Uttar Pradesh, Madhya Pradesh,
Bihar and Rajasthan change in traditional and feudal mindset is very slow. Let us unite to stop Honour
killings of innocent young man and woman who wish to live their lives in a casteless- classless
society.
>
*****
293
BOOK REVIEW
Uncodified Hindu Jurisprudence by Dr Pankaj Kumar Chaturvedi,,
New Delhi, APH Publishing Corporation,2012, Pages. xiii +177,
ISBN978-81-313-1239-1
Dr Arun Kumar Singh1
Personal law which is very important for the society plays a very crucial role. India is
the country where numbers of people of various communities are residing. These are, Hindu,
Muslim Christians, Jews etc. Their personal matters such as marriage dower, divorce, inheritance
are governed by their personal laws .These personal laws may be Codified or Uncodified. So far
as Hindu law is concerned Uncodified laws are still important even in present situation. The book
“Uncodified Hindu Jurisprudence” basically deals with Uncodified provisions relating to the
personal matters of Hindus. However it is tried to elaborate and clarify the provisions considering
codified laws regarding such matters. The book contains seven chapters.
The first chapter is Introduction which clearly explains the intention of the author to write
such book. The author has categorically stated that no one is above Dharma and law. The second
chapter, i.e. ‘Construction of Joint Hindu Family and Coparcenaries’ deals with characteristics of
Joint Hindu family as well as concept of coparcener. In this chapter the illustrations are mentioned to
explain the concept of coparcenary. On page no. 21 of the book the present position (i.e.after2005)
of coparcenary has been explained. It has been mentioned on such page that female members of joint
Hindu family are deemed to be coparcener. But it does not make clear whether all females of joint
family are coparcener after 2005 or only daughters would be included in the purview of coparcener
after such amendments. So it is required be made clear in next edition.
Chapter 3 is relating with partition. In this chapter author has given many diagrams to
explain the issues relating to partition. It can be more fruitful if some illustrations considering present
positions are considered. The author has mentioned the concept of women property in chapter 4 of
the book where he has tried explaining the nature of women estate and women property. He has
considered the judicial pronouncements to make it clear.
Chapter 5 deals with law relating to debts. In this chapter the author has clearly explain the
provisions and it will be very easy for all to understand the related provisions. Chapter 6 deals with
other types of alienation such as will, endowments etc. In this chapter has explained the position of
temple and maths. Simultaneously it has also been highlighted the role of Shebait and mohunt.
In the last chapter i.e. chapter 7 the Author has discussed the importance of codification oh
Hindu law. Not only he has discussed it but justified the codification of Hindu Law.
1
Assistant Professor, Department of Law, North Eastern Hill University, Shillong-22
294
The book is very informative and well written. It contains very good analysis of various
provisions of old Hindu Law. The book has very clearly explains the importance of requirement of
codification of law. After thorough reading of the book it is found that the author overall has worked
hard for this edition. This book will be very useful for teachers judges, lawyers and students .the
price of book is very genuine and affordable for all.
*****
Statement of Particulars Under Section 19D (b) of the Press & Registration of Book
Act Read with Rule 8 of the Registration of Newspaper (Central) Rules, 1956
FORM IV
1. Place of Publication
Chotanagpur Law College, Namkum, Ranchi, Jharkhand
2. Periodicity of its PublicationBi-Annual
3. Printer’s Name & Address
Speedo Print, Kokar, Ranchi
4. Publisher’s Name, Address & Nationality
Prof. R. K. Walia
Principal, Chotanagpur Law College, Namkum,
Ranchi, Jharkhand
5. Editor’s Name Address & Nationality
Dr. P. K. Chaturvedi, Executive Editor
Asstt. Professor, Chotanagpur Law College, Namkum,
Ranchi, Jharkhand, India
6. Name and address of individual who own
Chotanagpur Law College, Namkum, Ranchi,
the papers and or shareholder holdingJharkhand
More than one percent of the total capital
I, P. K. Chaturvedi hereby declare that the particulars given are true to the best of my knowledge and
belief. Edited and Published by Chotanagpur Law College, Ranchi, Jharkhand
CHOTANAGPUR LAW COLLEGE, NYAY VIHAR CAMPUS NAMKUM, RANCHI
RANCHI UNIVERSITY, RANCHI, JHARKHAND
Phone : 0651-2205877 (O), 0651-2261050 (O), Fax : 0651-2205877
Email : [email protected]

chotanagpur law journal - Chotanagpur Law College

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