Vous êtes sur la page 1sur 200

LAW REVIEW

Four t h Issue
P
U
B
L
I
S
H
E
D

Q
U
A
R
T
E
R
L
Y


V
O
L
U
M
E
:

O
N
E

I
S
S
U
E
:

F
o
u
r

Y
E
A
R
:

2
0
1
3

SPEAK UP PUBLICATIONS
A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.
ISSN: 2321 - 3787
ISSN: 2321 - 3787
2013. All Rights Reserved
Alkemia Legal Education Ventures Pvt. Ltd.
LAW REVIEW
Take advantage of the free e-subscription and receive the Journal in your inbox!
To subscribe visit: www.rostrumlegal.in/journal
2839 users follow Rostrum on Facebook. Look for our page to stay updated! ROSTRUM
Scan QR Code (Quick Response Code) at the cover page to download the Journal.
Vol ume : I Issue: IV
Fourth - December- 2013
Edit or ial Advisor
Pr of . (Dr .) G. P. Tr ipat hi
Dir ect or , MATS Law School , Raipur , Chhat t isgar h, India

Guest Edit or
Dr . Debasis Poddar
Assist ant Pr of essor of Law
Nat ional Univer sit y of St udy and Resear ch in Law,
Ranchi, J har khand, India

Managing Edit or
Anur ag Par ihar
CEO, Al kemia Legal Educat ion Vent ur es Pvt . Lt d.

Associat e Edit or s
Aounkar Anand
COO, Al kemia Legal Educat ion Vent ur es Pvt . Lt d.

M. B. El akkumanan
CAO, Al kemia Legal Educat ion Vent ur es Pvt . Lt d.
Mode of Citation: RLR (4) 2013
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal
TABLE OF CONTENTS
FOREWORD BY K. N. C. PILLAI 01
NOTE FROM THE DESK OF GUEST EDITOR
DEBASIS PODDAR 02

A. SPECIAL ARTICLE:
EXCEPTIONS UNDER MORAL RIGHT OF THE AUTHOR - AN ANALYSIS
JAYANTA KUMAR LAHIRI 03

B. ARTICLES:
PROBLEMS OF RURAL CONSUMERS AND THEIR EMPOWERMENT THROUGH
PANCHAYATI RAJ INSTITUTIONS
ALOK MISRA 09
E-CONTRACTS: MAIL BOX RULE AND LEGAL IMPACT OF THE INFORMATION
TECHNOLOGY ACT, 2000
ATUL KUMAR PANDEY 24
PUBLIC INTEREST LITIGATION (PIL): EFICACY AND DANGERS
CHINTAMONI ROUT 47
REVISITING THE CONCEPT OF PAROLE IN INDIA
DIPA DUBE AND MANISHA CHAKRABORTY 54
DEVELOPING SPACE LAW EDUCATION IN INDIA: SOME PROPOSALS
MALAY ADHIKARI 70
A STUDY ON LAW RELATING TO GROUNDWATER RECHARGE IN INDIA
P. SAKTHIVEL, S. AMRITHALINGAM AND M. STARKL 84


Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal
B. SHORT NOTES:
STATE OBLIGATIONS UNDER INTERNATIONAL CRIMINAL LAW: PROGRESS,
CHALLENGES AND PROSPECTS
DEEPA KANSRA 102
CONTRIBUTION OF SUFISM IN RELIGIOUS POLICY OF MODERN INDIA
GOURISHWAR CHOUDHURI 110
MOST FAVOURED NATION TREATMENT
NIDHI CHAUHAN 120
PERILS OF A FRAGILE PLANET: SHIFTING PARADIGMS AND SENSITIVE POSSIBILITIES
TAPAN R. MOHANTY 129

D. CASE COMMENTS:
OCCUPATIONAL HEALTH AND SAFETY ASSOCIATION VERSUS UNION OF
INDIA,
ARUP PODDAR 159
ASSOCIATION FOR MOLECULAR PATHOLOGY,
ET AL V UNITED STATES PATENT AND TRADEMARK OFFICE ET AL
GARGI CHAKRABARTI 169

E. LEGISLATIVE COMMENTS:
THE NATIONAL FOOD SECURITY ACT, 2013: A CRITIQUE.
GEORGE K. JOSE 176
THE LOKPAL BILL, 2013
S.C. ROY 184


F. INTRODUCTION TO CONTRIBUTORS A



Page | 1

FOREWORD
I am thrilled that Rostrums Law Review comes out with its fourth edition. If earlier
editions are any guide, the fourth edition should be superb.
The venture of law school students under the able guidance of guest editor Dr.
Debasis Poddar should be encouraged and appreciated in as much as it dispels the
popular misconception that the law schools now serve only corporate interest.
Rostrum is the standing monument of the sincere efforts made by the law school
lads to make legal education socially relevant.
I congratulate Dr. Poddar and his team of young scholars devoted to hard work and
learning for bringing out this wonderful journal for the benefit of the fraternity of
law. Keep up the multidisciplinary approach.


Kochi, Kerela Prof. K N C Pillai
January 26
th
, 2014

Page | 2

FROM THE DESK OF GUEST EDITOR

It seems heartening to note that young Guest Editor was requested
to continue assignment for another issue of Rostrums Law Review-
a forum that has created brand for itself within its short life span.
For few reasons, I was prompt while accepting offer from publisher
to repeat my stewardship for this journal. First, I received response
from contributors across the country to add value for my initiative.
Second, I received support and cooperation from other stakeholders
of RLR which knows no bound. Last but not least, in course of this exercise, I received insight
on editorial role that encouraged me accept this further opportunity for editorial experiment.
Together, these points did reboot my odyssey with RLR once again.
Scribbling from the same desk twice, I find it convenient to mention newer points of strategy
rather than repeating my editorial policy existing since earlier issue which is available online
@ RLR Volume 1, Issue 3. Here I prefer to accommodate an author on invitation who was not
part of mainstream academia as such; but made a mark of his own through his contribution
to legal literature on Intellectual property. A veteran in IP matter, both in academics and
practice, Dr. Jayanta Kumar Lahiri is known for hard rigour he undertakes and the insignia
of (t)his rigour seems apparent. Also, Im elated to receive two pieces of legislative comment
on two newly introduced statutes. Legislative Comment- being my dream column- is meant
to address a long-pending vacuum in the world of juridical literature.
With these words, I prevent myself to stand further between our authors and their readership.

Debasis Poddar
January 27, 2014, Guest Editor,
Ranchi (Jharkhand), Vol. 1, Issue 4,
India. Rostrums Law Review.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 3
EXCEPTIONS UNDER MORAL RIGHT OF THE
AUTHOR - AN ANALYSIS
JAYANTA KUMAR LAHIRI
ABSTRACT
While delving into the moral rights in the law on copyright, the present article
focuses in brief the most distinctive features and which of the them stands unique
concerning the concept of right and reason therefore. The moral right,
notwithstanding its conceptual formidability and practicality, suffers from some kind
of ambiguity and uncertainty in deciding kind of acts that amount to reputational
damage of the author in relation to his work ultimately pushing the court to be the
judicial umpire of the rival contending parties. That the harmonised standard for
deciding the reputational damage of the author caused by humiliating display of his
work admittedly is some what illusion but the truth remains that the its absence
confounds the problem although this aspect is not dealt in detail here. The article
fleetingly discusses the effects of exception clauses on the efficacy of the moral
right).
Right, without punitive law against infringement, had little appeal to the
conservative positivist jurists
i
. They consistently held that moral indefensibility of an
act or omission, its severity and public abhorrence notwithstanding, if so facto does
not confer legal right to compensation and relief to the aggrieved unless specific
law provides so. Differently put, conduct arising out of moral aberrations will be
unlawful against a set of enacted rules although opposite may not always be the only
reasonable inference. Conversely, under ethical concept of Hindu raj dharma, moral
shade of an individual conduct, enjoyed primacy over the strict legal faade of the act
as understood under modern parlance, decided the compensatory approach of
retribution. Religious precepts, regardless of difference in tenor and emphasis,
inherently prefer morality over other considerations in dealing human conduct. The
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 4
moral right carves out an exception to the approach to the classical concept of right
for, among others, the reason being that the moral consideration germinates
enforceable right within particular area of intellectual creations.
The moral right, grounded specific principles is an individual right
ii
. The concept of
moral rights originated in French law with three limbs namely, right of paternity,
right of integrity and right of publication. The right of paternity confers the author
the right to claim authorship in respect of certain type of works, right to restrain
others from claiming the authorship of those works and right to prevent the use of
his name by others in connection with that other persons work. The right to
integrity confers the owner the right to prevent distortion or mutilation of his work.
The fundamental justification of moral rights is based on the premise that the
works of art belong to their creators and the works reflect the personality of the
author or creator and the work being the embodiment of creators personality
therefore must be protected from distortion and mutilation. From the point of
enforceability, it is a branch among other forms of rights but characteristically not
akin to in other respects. The moral rights are essentially personal, non-economic in
nature and are not proprietary rights.. The author, even after the transfer of
copyright enjoys the right to object to distortion , mutilation of other
modification of, or other derogatory action in relation to the said work, which will be
prejudicial to his honour and reputation.
iii
The author receives no financial profit
neither can assign moral rights even after assigning the economic rights of the work.
But the author is entitled to claim damages and sue against infringement of moral
rights against any person including the person to whom he transferred the copyright
by assignment.
The Berne Convention (Paris Act 1971) recognized two kinds of the moral
rights of the author namely:
the right to claim authorship of the work
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 5
to object in any distortion, mutilation or other modification or, or other
regulatory action in relation to, the same work which would be
prejudicial to his honour or reputation.
The Convention left it to the rectifying countries to frame statutory mechanism
under their national laws to safeguard the author's moral rights. TRIPS
Agreement although required that Member Sates shall comply with the
main Articles 1 to 21 of the Convention but did not endorse any protection
of the works under authors moral right
iv
.
Judicial approach to the infringement of moral rights is largely determined by
various factors like facts of each case, the category of the work, nature of
alleged derogatory treatment, the use of treatment resulting in alleged
infringement, the contextual laws of the each country and the exceptions.
In Eaton Centre case, simple putting ribbons around the necks of flying gees
forming a part of an art work by Eaton Centre, the Shopping complex, in
Toronto, was upheld by the Canadian court
v
being prejudicial to the honour
and reputation of its author. Contrastingly, the British court refused to accept
the plea of violation of integrity of the works of cartoon by the cartoonist
merely because the original size of cartoons was reduced Natural History
Museum Authorities while including the cartoons in a book. The Court held
that the reduction of size of the cartoon did not result in distortion of the
cartoons and therefore caused no prejudice to the reputation and honour of the
cartoonist
vi
. The bronze mural sculpture which was commissioned by the
government of India from an internationally reputed sculpture was damaged
for being badly kept. It was considered by the court as destruction and
mutilation of the work and held to be infringement of moral rights of the
sculpture
vii
.
The moral right doctrine under Copyright Act 1957
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 6
The concept of moral rights is given legislative shape in Copyright Act 1957 by
providing authors special right
viii
with certain exceptions and moral rights to the
performers
ix
. The section 57 of the Act reads:
Independently of the authors copyright and even after the assignment either wholly
or partially of the said the author of a work shall have the right-
(a) to claim authorship of the work and
(b) to restrain or claim damages in respect of any distortion, mutilation,
modification or other act would be prejudicial to his honour or reputation:
Moral right under Copyright (Amendment) Act, 2012
Under the un-amended Act, the duration of moral rights was limited to the term of
the copyright in the work. In other words, the author could enforce his moral
rights so long the copyright exists in the work. By omitting the words which is
done before the expiration of the term of copyright the amended provision wiped
out the durational limit of moral right and conferred permanent moral right to
the author
x
. The new provision is slight variation of the provision under Berne
convention but largely similar to that under French law.
Calling for the rationale behind choosing the phrase moral right instead of any
other indicative expression receives no convincing explanation. One of the
strained reasons might be the concept that work personifies the author and so the
he can claim moral right over it. But this justification does not go beyond the
theory of right to paternity Can a right automatically emanate from the claim of
from the moral perspective? Unless the conduct or behaviour intervening the right
is visited with punishment, moral claim cannot share the same platform with legal
right. But why the authors and performers are chosen to be conferred with such
right solely based on moral consideration under intellectual property law leaving
other rights, if claimed on the moral considerations under other branches law of
property, remains unanswered.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 7
Apart from those rights granted to him under section 14 of Act , the author also
enjoys special rights which he retains even after the assignment of the
copyright either wholly or partially in respect of particular copyrighted work.
The violation of special rights read with exceptions and explanation, will
constitute cause of action for bringing suit of infringement by the author in
addition to those provided under section 51 of the Copyright Act. The duration of
special rights or moral rights is limited to the term of the copyright in the work.
The term author however, has to be interpreted in the light of definition given
in the Copyright Act
xi
. This right can be enforced either by the author or his
appointed legal representatives.
The moral right, in summary, can be enforced by the author if his work are
mutilated, or subjected to such treatment that causes his reputational damage
affecting his honour and integrity of his authorship even after the assignment or
sale. The moral right transcends beyond the cardinal concept of ownership
because the right prescribes its enforceability even after transfer the ownership
of the work to a third person by way assignment o others legal means.
The exceptions of the moral rights under the law of copyright to some extent
,dwarfed its efficacy from the authors point of view thus making it a fragile
extension of legal right. Under one of the exceptions, the authors special right
xii

will not operate in case of failure to display his work to his satisfaction
xiii
and
therefore an suit of infringement of his right will not stand. The wide ambit
phrase failure to display the work coupled with innumerable ways of displaying
the work makes it difficult to decide whether authors moral right has been
affected or not. For example, can a cartoonist of no reputation or marketability of
his work allege the failure of his work of cartoons and consequent infringement
of his moral right if his cartoon morphed by adding colour to the appearing
bodies? Theoretically he may allege morphing resulted in his reputational
damage and brought dishonour to his work and the defendant may put up many
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 8
defences. Ultimately, the court, if approached by the affected author will decide
which bound to differ due to various reasons.
The exception clause further provides that infringement of moral right cannot be
invoked by the author merely because failure to display his work to his satisfaction.
The exclusionary provision apparently attempts to make a stark distinction
between personal dissatisfaction of the author and the aberration in displaying or
treating the work which detectable by an objective analysis. But if the author is
satisfied that his work has not been subjected to any dishonour affecting his
reputation, he is not aggrieved in any way. The element of personal dissatisfaction
of the author comes into play when treatment mated out to his the work contrary
to what he considers appropriate. Therefore element of personal satisfaction of the
author cannot be eliminated altogether because it would extend a ground of
defence to the defendant.

i
Austins proposition that law must be backed by commands sits comfortably with these positivist.
ii
See Dworkins supportive logic that Arguments of principle are arguments intended to establish
an individual right. Ronal Dwarkin Taking Rights Seriously p-90 Universal Law publishing Co
New Delhi 2005
iii
Berne Convention art 6 bis (i)
iv
TRIPS agreement specifically provides that Members shall not have rights or obligations under
the Agreement in respect of the rights conferred under Art 6bis of that Convention.
v
Snow vs Eaton Centre (1982) 70 CPR (2d) 105 (Canada)
vi
Tidy vs. Trustees of Natural History Museum (1998) 39 IPR 501
vii
Amarnath Shegal vs Union of India (2005) Copinger comments that the decision of
the court that the complained act was prejudicial to the reputation of the sculpture may not be
followed in the UK. See Copyright : Copinger & Skone James ed .2011
viii
Section 57 of the Copyright Act 1957 read with amendments2012
ix
Section 38 A of Act 2012
x
Sec 57 of the Act
xi
Section 2 (d) of the Copyright Act as amended in 2012 specifically mentions that author, in relation
to a literary or dramatic work is the author of the work , the composer is the author of a musical work,
the artist is the author of artistic work, the photographer who takes the photograph is the author of
the photograph and the producer ins the author of cinematograph film and sound recording.
xii
Authors special rights and moral right, in spirit and meaning are synonymous to each other
permitting inter-changeability under the respective domestic laws.
xiii
Italics added
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 9
PROBLEMS OF RURAL CONSUMERS
AND THEIR EMPOWERMENT
THROUGH PANCHAYATI RAJ
INSTITUTIONS
ALOK MISRA
INTRODUCTION
"The State shall take steps to organize village panchayats and endow them with such
powers and authority as may be necessary to enable them to function as units of self-
government." (Article40)
In State of Uttar Pradesh v. Pradhan Sangh Kshettra Samiti
i
, the Supreme Court observed
that Article40 does not give guidelines for organizing village panchayats. All that they
require is that the village panchanyats howsoever organized have to be equipped with
such powers and authority as may be necessary to enable them to function as units of self-
government.
The details of Panchayat Raj institutions as political system of local governance are found
in abundance in the history of South-East Asia particularly in the countries of
subcontinent like India, Pakistan, Bangladesh and Nepal. Indian social system has
tremendous vitality. Since racial, religious, cultural, linguistic, geographical and economic
diversity has been coexisting and nurtured since ages, this provides a strong unity to social
system. In simple understanding Culture is day to day pattern of living. In India the
cultural diversity has been maintained as a social policy by the rulers in their polity.
The word 'Panchayat' literally means assembly or Ayat of five or panch elderly and wise
persons. Panchayati Raj Institutions existed, functioned and contributed significantly. It is
important to note that the village panchayats have always been elected bodies and
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 10
functioned as units of local self-government. Gram panchayats are contrastingly apart
and distinct from the unelected khap or caste panchayats prevalent in some parts of
India.

CONSTITUTIONAL AND LEGAL ROLE OF PANCHAYAT RAJ
INSTITUTIONS IN CONSUMER PROTECTION
India is a country with extensive topography, vast geography and consequent economic
diversity. Largest segment of population which is around 70 percent of the population
lives and works hard in rural India. The people in rural areas are engaged in agricultural
and related activities. In independent India the rural economy has rapidly transformed
itself and the economic activities are getting organized very fast. The contribution of rural
economy is significant and it sustains a large section of population in India. Agriculture
and related activities have grown enormously on scientific and technological lines.
Mechanization of agriculture and irrigation has gone a long way. The economic activities
are to be managed and administered in a user friendly manner.
There are more than 72 million consumers in villages and rural India, as per the reports
of various government and non-government organizations. The protection of consumers
in rural areas has become an area of concern. The consumers in the form of farmers and
entrepreneurs are using agricultural inputs and technology to a considerable extent. They
are to be protected. In this the Panchayat Raj Institutions are required to play a vital role.
The powers of these institutions and co-related obligations towards the consumers are
required to be emboldened. It will give a new dimension and role to the functioning of
these institutions. Panchayat Raj Institutions are required to be oriented towards people
and development.
From the second half of the 20th century law rapidly came to be recognized as a tool of
social development and welfare of humanity. The process of social engineering came on
priority. The reforms started coming very fast. It was an urgent requirement to
emancipate people living in Afro-Asia which had been made slums by the colonial powers.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 11
The object of law is to do welfare of humanity, similar to that of all branches of knowledge
like science and technology, engineering, medical sciences, social sciences, political
science, management science, economics etc. India has been strengthened by various
revolutions in co-operative and private sector like the green, yellow, blue, white and pink
revolutions. These developments are the result of the hard work of the people of India.
There is massive production and consumption of goods and services across India. In all
the four sectors of economy there is rapid rise of consumers.
Mahatma Gandhi emphasized on the establishment and organization of the village
panchayats for the administration and development of villages as a unit of self
government. He clearly believed that India can have a strong economy only when the
villages will be self reliant. His philosophy came to be known as Gram Swaraj. Article40
of the Constitution of India stands explicitly inspired by Gandhian philosophy. It is a
major directive to the State of India in law and policy making.
In pursuance of this directive, Balwant Rai Mehta Committee in Nehruvian era, Ashok
Mehta Committee in Desai era, P.K. Thungan Committee in Rajeev Gandhi era were
major mile stones. The constitutional status of Panchayat Raj institutions by 73rd and 74th
Amendments of the Constitution came during Narsimha Rao era in pursuance of the
dream of Rajeev Gandhi to take democracy to the grass root level. In fact the organized
establishment and constitutional status given to the functioning of these institutions had
become and urgent requirement in the light of the growth of Indian economy as well as
the impact of liberalization and globalization of agricultural and related activities.
By 73rd Amendment of the Constitution Part IX dealing with the Panchayats (containing
Articles 243, 243A to 243O) was inserted. Similarly Part IXA related to the Municipalities
(containing Articles 243P to 243Z, 243ZA to 243ZG) was inserted by the 74th amendment.
For details of the aforesaid provisions Eleventh and Twelfth Schedule were also added in
the Constitution. Detailed provisions defining Gram, Gram Sabha, Panchayat, composition
of Panchayats, Panchayat area, Intermediate level, District level, reservation of seats,
disqualifications for membership, powers, authority and responsibilities of Panchayats,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 12
power to impose taxes by, and funds of the Panchayats, constitution of finance
commission to review financial position, audit of accounts of Panchayats, elections to the
Panchayats etc. have been enshrined. Similar details with regard to the Municipalities have
also been provided.
Article 243G mentions Powers, authority and responsibilities of Panchayats and clearly
lays down that the Panchayats at appropriate level shall have the responsibilities for the
preparation of plans for economic development and social justice, the implementation of
schemes for economic development including those in relation to the matters listed in the
Eleventh Schedule. Similarly Article 243W and Twelfth schedule enshrine the similar role
of Municipalities.
The Constitution (73rd Amendment) Act, 1992 enshrines a key role for the
Panchayati Raj Institutions related to the 29 subjects such as education, health, rural
housing, drinking water, agriculture etc., as mentioned in the Eleventh Schedule of
the Constitution. States are required to transfer these functions to the Panchayati Raj
Institutions and to devolve funds, functions and functionaries upon the Panchayati
Raj Institutions for discharging these functions. The Comptroller & Auditor General
of India is responsible for exercising control and supervision over the proper
maintenance of accounts and the audit of all the three tiers. The format for
preparation of budget and for keeping accounts is prescribed by C&AG. The
classification of transactions in Panchayati Raj Institutions their budgets and
accounts has been structured on a function-cum-program basis to provide uniformity
in three levels of governance i.e. Union, State and Local Government.
The role of the Panchayati Raj Institutions in consumer education and their protection
is of prime importance in present times. The evolution of law in the field of consumer
protection and the constitutional status accorded to Panchayat Raj Institutions are closely
related. Both of them achieve special significance and meaning in the light of the fact that
India is a country with extensive rural base and a large number of consumers are living in
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 13
rural areas. Rural markets are feeling the impact of globalization and liberalization of law
and economy.
The economic prosperity achieved by the common men in India by their hard and
sustained work has gone a long way in pre and post green revolution era. This
improvement in the economic status has made Panchayat Raj Institutions and consumer
protection more meaningful. Education and awareness in rural areas has increased and is
to be increased further. The thought process of consumers in rural areas is evolving and
getting rationalized resulting into the emergence of better and more rational preferences.
The behavior of consumers in rural areas is becoming systematic and is changing in a
positive direction. In this context the innovations in the field of rural management, science
and technology have played a crucial role. With the generation of massive requirement in
the resurgent nation this is a thrust area in which law related to consumer protection can
not only protect the welfare of masses but also can work as a tool for social development
in conjunction with Panchayat Raj Institutions.
Democracy is incomplete unless the local government and the individual consumers
are empowered. There was a time when consumer came last and was least important
in the economy but now the consumer is the mainstay of empowerment. One of the
major drawbacks of the present consumer protection movement is that it is restricted
to the urban areas. One way to empower the rural population is to empower the
members of Panchayati Raj Institutions and through them the masses. On the one
side there is growing market and on the other side there is manipulation and
exploitation which impairs the interests and rights of the consumers. Consumer
protection and business should proceed together. Markets are to be disciplined with
orientation towards the satisfaction of the interests of consumers.
EMPOWERMENT OF CONSUMERS IN RURAL AREAS
India started transforming itself rapidly with the promulgation of the Constitution. The
Constitution enshrined the Preamble containing objectives of socio-economic justice, the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 14
fundamental rights for the many fold development of the individuals, and the Directive
Principles of State Policy to usher the era of welfare in India. The establishment of
Planning Commission to be chaired by the Prime Minister, by a Resolution of Cabinet on
15th March 1950 within 47 days of the promulgation of the Constitution was a significant
step. The policy of ceiling i.e. hadbandi on land holdings and bringing scattered peaces of
land i.e. chakbandi were major steps of land reforms. Another significant effort in this
context was of Bhudan and Gram Dan movements by Acharya Vinoba Bhave.
The turning point of transformation of agriculture and rural India came with the green
revolution. The government made signal innovations in the empowerment of simple,
dedicated and honest people in rural India through Community Development Programs
like Food for Work Program, National Rural Employment Program (NREP), National
Rural Landless Employment Guarantee Program (RLEGP), Integrated Rural
Development Program (IRDP), Training of Rural Youth for Self-Employment (TRYSEM)
etc. The legendary Jawahar Rozgar Yojna (JRY) in which the aforesaid programs got
merged and introduction of Perspective Planning were milestones achieved by the
government. Granting of the constitutional status to Panchayat Raj Institutions was the
logical conclusion arrived towards taking democracy to the grass root level. The
empowerment of consumers in rural areas became a visible reality with Insurance of
Agricultural Sector under the auspices of General Insurance Corporation (GIC) and
making available the credit cards, named Kisan Credit Cards. Mahatma Gandhi National
Rural Employment Guarantee Act, 2005 (MGNREGA) also aims to empower the
consumers in rural areas.
The welfare measures as mentioned above have contributed to the general well being,
happiness and prosperity in rural India giving vast purchasing power and emergence of
rural consumers and markets. The role of the banking industry and of NABARD has
helped a lot in this direction. The expansion of cooperative activities in general and of
IFFCO, KRIBHCO and NAFED in particular has been beyond imagination. The HBJ
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 15
(Hazira-Babrala-Jagdishpur) pipe line, rightly named as Gas Ganga has been instrumental
in giving and entirely new dimension to rural economy of Northern India.
The philosophy and aim of Co-operative Federalism is proving itself to be the correct
objective in nation building. The life and life style of rural India has tremendously
changed and getting updated and upgraded. This has narrowed down the gap between
Urban and Rural India. Rural Marketing Association of India (RMAI) and MART are
providing valuable inputs in this direction. The income in rural areas and of rural
consumers is on the rise as is visible from enormous growth in rural marketing
operations. The rural share of popular consumer goods and durables is also rapidly
rising. The growth and potential in rural markets is enormous and significantly more
as compared to Urban markets.
The Pharmaceutical Revolution at the dawn of 21st century popularly came to be
known as Pink Revolution has made India the largest manufacturer of medicines in
the world. The medical facilities have reached rural India vertically and have spread
horizontally making it a thrust area in rural markets. Significantly Pink Revolution
has occurred in private sector. Indian economy is rapidly transforming itself into a
global economy with the arrival of patenting in the field of agricultural research and
development.
The invention of Internet led to Information Technology Revolution, ultimately bringing
Cell Phone as a necessity in the hands of most of rural consumers. Requirement and
availability of mobile phones, computers, internet connectivity, laptops, palm tops and
information highways have changed the form, shape, nature and extent of consumer
markets in rural India generating remarkable potential changes and growth. Super
conductivity and Optical Fiber Technology has contributed a lot towards Rapid Transit
Transportation Systems and Tele Communication Technology. The construction of
extensive road networks has generated usage of automobiles on a large scale in rural
India. Automobiles have given wheels to the people of rural India. Their life has become
faster and business oriented.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 16
PROBLEMS OF CONSUMERS IN RURAL AREAS
Rural consumers in emerging market countries are among the largest and fastest
growing segments of the world's population. Rural India is growing at a fast speed
and is a potential market for the goods and services. The extent of rural markets in
rural India is expected to be doubled than that of urban India. Liberalization
resulting into Globalization, rise in income, expansion of media and information
technology in rural areas, women empowerment, improvement in infrastructure etc.
are some of the catalysts for the growth of rural markets.
With the growth and expansion of rural market at such a fast pace there is a
consequential and simultaneous rise in the problems and grievances. The major
difficulties and problems of consumers in rural areas are lack of awareness,
adulteration, less and incorrect weighing and measuring, quite often absence of
safety and quality in equipments, defective goods and deficient services,
misrepresentation and unfair assurances, misleading warranties and guarantees, high
pricing, cheating in the form of spurious and mirror image goods and malpractices
like selling on more than prescribed minimum retail price, faulty weights and
measures, deficiency in services, misrepresenting advertisements etc. The six
sensitive areas in consumer protection are related to Credit Cards, Milk production
and supply, Banking, Travel, Telecommunication and Consumer goods.
The reality is that the conditions are unfavorable for the consumers. They stand
exploited. Ignorance is an important factor in the exploitation of the consumers
especially in the rural areas. With economic reforms the market is gradually being
transformed from a predominantly sellers market to a buyers market where choice
of the consumers depends on their awareness level. Consumer rights could be
protected in a competitive economy only when right standards for goods and services
are ensured by evolving a network of institutions and legal protection system. To
ensure consumer welfare is the responsibility of the Welfare State.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 17
Even a manufacturer or provider of a service is a consumer of some other goods or
services. If both the producers and consumers realize the need for co-existence,
adulterated products, spurious goods and other deficiencies in services will get
reduced.
The rural consumer remains disadvantaged as their right to information, choice,
redress, education and to be heard are not sufficiently fulfilled. There is need for the
improvement in the existing consumer protection and consumer welfare polices for
meeting the specific requirements of rural consumers more effectively. Indian
consumer is also to be protected from wrong influences which some times come
from the media.
In fact Mahatma Gandhi had rightly said that a consumer is the most important
visitor on our premises. He is not dependent on us, we are on him. He is not an
interruption to our work; he is the purpose of it. We are not doing a favour to a
consumer by giving him an opportunity. He is doing us a favour by giving us
opportunity to serve him. As per the Gandhian thought the consumers and producers
were not looked as separate individuals. The process of production was supposed to
be decentralized and distributed in parity. In consumer protection movement there is
need of emphasizing and resorting to Gandhian values with decentralization as a
policy for protecting all, including consumers.
The benefits of the decentralization must be able to reach the poorest of the poor. As
Mahatma Gandhi clearly observed Whenever you are in doubt or when the self
becomes too much with you, apply the following test: Recall the face of the poorest
and the weakest man whom you may have seen and ask yourself if the step you
contemplate is going to be of any use to him. Will he gain anything by it? Will it
restore him to a control over his own life and destiny? In other words, will it lead to
Swaraj for the hungry and spiritually starving millions? Then you will find your
doubts and your self melting away.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 18
EMPOWERMENT OF REDRESSAL MECHANISM
Protection connotes that someone is there as protector and protected. Consumer
Protection Act, 1986 aimed to provide better protection to the consumers.
Consequently consumer movement acquired momentum. It provides three tier
structure from district to national level for the redressal of consumer grievances.
The Act enshrines consumer rights which are internationally accepted. The Act
provides for simple, speedy and inexpensive redressal to the consumer grievances
against defective goods, deficiency in services including the restrictive and unfair
trade practices.
An enlightened consumer is an empowered consumer. An aware consumer not only
protects himself from exploitation but brings efficiency, transparency and
accountability in the production of goods and services. It is important that top
priority be accorded to Consumer Education, Consumer Protection and Consumer
Awareness. The Consumer Protection Act, 1986 applies to all goods and services
unless specially exempted by the Central Government, in all sectors whether Private,
Public or Co-operative.
A person can make a complaint if he is not satisfied with the standard of service
which has been provided to him. Anyone who feels that he was provided a poor
service or is not satisfied with the product or the service can make a complaint in the
Consumer Court. Consumer complaints are legal methods for expressing
dissatisfaction with regard to a service or product. It is the legal way of filing a claim.
The important rights of consumers are Right to Safety, Right to Information, Right
to Choice, Right to be heard, Right to Redress and Right to consumer education etc.
Every body is using goods or services in day today life and is a consumer. However,
the reality is that the conditions are not favorable and conducive for consumers. They
are being exploited and cheated especially in the rural areas. For this the consumers
are to be made aware of various aspects and their rights. The best way to educate the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 19
rural consumers is to hold the meetings of Gram Sabha regularly which are
generally attended by most of the villagers.
The task of consumer protection has three basic dimensions. First, to ensure a legal
framework of legislations related to consumer protection. Secondly, to evolve
standards so that consumers are able to exercise their choice amongst different
products. Standards are the essentials for quality and play a key role in consumer
protection. Standards are technical specifications of usage of proper
terminology, codes of practice and procedures and of management systems. Thirdly,
awareness of consumers and their education for protection is very important. How to
educate the rural masses still remains a challenging task.
Some significant measures are visible in this direction Multi-media publicity
campaigns have been launched through print and electronic media on the issues
which are very relevant such as putting ISI marks, Hallmark, Labeling, MRP,
etc,. Advertisements are now released through a network of national as well as
regional newspapers. The Department of Consumer Affairs has video spots of 30
seconds duration on various consumer related issues, which are being telecast
through Cable and Satellite channels. Special programs have also been telecast on
Lok Sabha TV and Doordarshan to highlight the issues relating to consumer
awareness. Issues pertaining to rural and remote areas have been given prominence
in the various advertisement spots.
Consumer Protection Act, 1986 has its own limitations. Although it is providing
protection to the rights of consumers yet it requires to be revisited in the light of
extensive changes during last two decades.
The disputes redressal mechanism related to consumers operates through consumer
forums. They exist at district, state and national level to redress the complaints of
consumers. The Consumer Forum is bestowed with the power to order replacement
of the commodity or removal of deficiencies in goods and services or refund of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 20
payment. It can also award compensation for loss suffered. The three-tier system of
consumer forums under the Act reaches to urban areas only. It is difficult for rural
consumers to reach the forum. The extension of the consumer forum in rural areas
will give relief to consumers.
Consumer forums and Lok Adalats organized by them are required to reach villages.
In this regard there is a significant role for the Panchayat Raj Institutions in
protecting the rights and interests of rural consumers. Easy and available remedy
will ensure further participation of people in rural areas in the growth and change of
rural and semi-urban India. The Gram Panchayats are viable constitutional
mechanism present across India. Through this constitutional mechanism the
consumer movement can be made effective and awareness among rural consumers
can be spread. In this context required amendments can be made to establish
consumer forums at Gram, Block and District level.
The Gram Panchayats can play a crucial role in spreading awareness. Information
Technology and both print and electronic media can be used for this purpose. The
relevant literature in this regard in languages of the people can be extensively
circulated in hard as well as in soft versions. The Gram Panchayats can use media in
the form of documentary films. Street plays can also go a long way in spreading
awareness. The teachers and students can do wonders in taking the consumer
awareness programs at every door of villages.
Involvement of academicians and researchers in consumer movement is of vital
importance. Till now there is not much of the involvement of teachers, students,
researchers and educational institutions in generating awareness about the problems
of consumers and their protection. There is a need to encourage teachers and
students to take up this cause in rural areas. Active participation of the consumers in
awareness drives can ensure consumer welfare.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 21
There is need of improvement in infrastructure of the Consumer Forums, sufficient
allocation of funds in budget for their effective functioning and for consumer
protection and welfare, provision for training of staff, and members of the Consumer
Forums and provision of necessary legal aid to the consumers in order to enable
them to defend themselves.
CONCLUSIONS AND SUGGESTIONS
In a democratic system people are required to be made active participants in the process of
governance and development. This helps in strengthening the democratic fabric and
processes consequently developing the sense of belonging in people. It also ensures
utilization of the knowledge and experience of the people as a human resource. In this
way people develop skills also in them to contribute and accelerate the process of
development. Decentralization and devolution of legislative and executive powers is the
primary requirement of resurgent nation. Earlier village assemblies resolved disputes
between individuals in villages. Now the Constitution and law has decentralized and
delegated several administrative functions to the local level. This has empowered
elected Gram Panchayats. This decentralization of the aforesaid powers and functions
with regard to such a huge population is historical in the history of humanity. C.
Rajgopalachari rightly opined 'A knitting together of people's hearts makes democracy'.
The rights of consumers are to be protected in every sector and especially of the rural
consumers. The Panchayat Raj institutions are required to be made the pivotal agencies in
educating and protecting the consumers through policy making. The active involvement
and participation from the Union and State governments, the educational
Institutions, the NGOs, the print and electronic media and the adoption and
observance of a code of code of professional conduct by the trade and industry and
the citizens charter by the service providers is necessary for the success of the
consumer movement.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 22
Impact of participation of women as functionaries in Panchayati Raj Institutions is
significant. It has enhanced their self-esteem, confidence, decision-making ability,
respect within the family and in community. Their voice has increased in decisions
related to economic matters and other issues in their family. Women who received
training have performed better. It should be organized regularly covering rules and
regulations, administrative issues, budgeting, finance and the implementation of
development schemes.
The need of the hour is for total commitment to the consumer cause and social
responsiveness to consumer needs. It is important that this should proceed in a
harmonious manner. The majority of consumers in India are not aware of their
rights and existence of the consumer forums. The access to consumer forums is not
available to them due to numerous factors in general and absence of the network,
branches and benches of consumer forums below the district level in particular.
Many a times the consumers suffer financial injuries. Although there is Indian
Contract Act of 1872 yet there is no comprehensive legislation like Indian Torts Acts
till now. The codification and enactment of Indian Torts Act which is pending since
British times is urgently required for the fair justice with regard to civil wrongs. The
doctrine of caveat emptor and caveat vendor are required to be in balance. The calls
like Jago Grahak Jago have reached in every household as a result of the awareness
campaigns undertaken during the recent past. The State has endeavored to inform
the common men of their rights as a consumer. Consumer awareness initiative in
rural and remote areas should find top priority in governance.
Now, the Fundamental Right to Education in Article 21A of the Constitution is set to give
a further fillip to consumer protection movement. MGNREGA is a movement towards
making Right to Work a fundamental right and actualizing the directives of law and
policy making as mentioned in Article41 of the Constitution. Major concern in this
direction is of corruption, financial misappropriation of funds and lack of commitment
towards the cause. The issue is of humane governance and not simply of good
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 23
governance. For this socially responsible skilled professionals are to be produced as their
end products by universities, which are sanctuaries of the nation, its happiness and
prosperity.
In the end it is to be appreciated and kept in mind that although Panchayat Raj
institutions can play a crucial role in policy making and their implementation yet the
judicial function in the adjudication of disputes can not be given to them because
that will go against the principles of natural justice. Since huge finances are and will
be involved in development, in many cases Panchayat Raj institutions will be a party
in disputes. So they can and should not be a judge in their own cause. Awareness,
expansion and availability of the network of consumer forums below the district level
shall be the right mechanism.

i
AIR 1995 SC 1512.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 24
E-CONTRACTS: MAIL BOX RULE AND LEGAL
IMPACT OF THE INFORMATION TECHNOLOGY
ACT, 2000
ATUL KUMAR PANDEY
The principles governing the E-contracts are based on the traditional law of contracts.
According to section 10, of the Indian Contract Act, 1872 essentials of a contract
include:
1. Parties competent to contract
2. Existence of consent of parties
3. Consent being free
4. Existence of consideration
5. Consideration and Object being lawful
6. The agreement does not being expressly declared void.
However, before ascertaining whether a contract is valid or not, it is important to
ascertain whether a contract has been concluded at all. A contract is formulated
when the offer is communicated by the offeror to the offeree and the same is
accepted by the offeree, whether expressly or by implication. The key to
understanding electronic contracting is that is to regard the Internet simply as
another tool of communication. Until now, new modes or tools of communication
have been adequately incorporated into the legal system for example the telex or the
fax machine. In theory, therefore law is capable of dealing with the issues raised by
electronic means of communication.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 25
COMMUNICATION IN ELECTRONIC FORM AND E-CONTRACT
ISSUES:
An offer or acceptance, like any other expression of will or intention, may be
communicated by any means, including by messages in electronic form (called
electronic record in Information Technology Act, 2000). The provisions of Indian
Contract Act, 1872 are wide enough to cover such transactions. In the context of
contract formation, unless otherwise agreed by the parties, an offer and the
acceptance of an offer, or either of them, can be expressed by means of data
messages or electronic records.
Where electronic records are used in the formation of a contract, that contract shall
not be denied validity or enforceability on the sole ground that data messages was
used for that purpose according to provisions of Section 10 A of Information
Technology Act, 2000. As between the originator
i
and the addressee
ii
of the electronic
record, a declaration of Will or other statement should be valid, effective and
enforceable even though it is in the form of a data message.
1.1 IS ONLINE CONTRACTING INSTANTANEOUS?
One might express the view that email and other methods of online contracting are
instantaneous communications and that the general acceptance rule should apply to
their acceptances. In fact, this argument may be true in respect to website
acceptances since there is no actual space in time between the sending and the
acceptance of the offer. But, contracting through email messages is different than
that happens in website contracting and hence cannot be treated as instantaneous
communication.
HOW DO PEOPLE CONTRACT ONLINE?
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 26
To determine when to treat online contracting instantaneous and when not, we need
to understand methods of online contracting. There are two main methods: click
wrap and e-mail.
A. Click-wrap: Click wrap contracts are most commonly found in the workings of the
World Wide Web. The usual formation of such a contract begins with the web vendor
placing information about a product on the web. This information could be in the
form of an advertisement, an invitation to offer, or an offer of a product or service for
the due consideration. There is usually a hypertext order form within close electronic
proximity which the consumer fills out and this form will contain a button labeled I
Accept, Submit, Purchase or some such phrase. When the computer clicks on this
button, the order is sent to the vendor, who usually reserves the right to proceed or
not to proceed with the transaction. In many instances, however, the order will be a
processed automatically and in this respect, it is similar to a purchase in real world.
Communications in the manner described above, will be treated as instantaneous.
However, the situation is different with regard to contracting through email.
B. E-mail: The text of email messages is the digital equivalent of a letter. E-mail
without being in existence physically, is still capable of performing all the functions
of a usual email. It can be used to send offers and acceptances. However, because of
some technical reasons e-mail delivery systems is different from standard mail
delivery system and this creates complications for e-contracting. To understand the
complications, first we need to understand how an e-mail is transmitted.
HOW IS E-MAIL TRANSMITTED?
A user who has an email account can draft a message that he is going to send
without having a connection to the internet. After the user creates this message on
the senders computer the first stage of the e-mails journey starts when he opens the
connection to the internet server provider (ISP). The second stage occurs at the
moment the sender actually presses the send button, which, so long as the network is
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 27
not busy and the receivers email address has been correctly entered, transmits it
along the international network of computers until it reaches the intended receivers
ISP. From the ISP the email enters the internet where it may bounce from a
minimum of one computer to many millions, before reaching the ISP of the receiver.
The recipient will then be able to retrieve the message by logging onto their ISP and
downloading the message.
In fact, the e-mails journey, while travelling through the internet, may involve
travelling across the world even though the person receiving the message is in the
next building. This journey takes a moment, sometimes minutes, until the recipient
receives the email message. This fact does not differ even, if the internet service
provider for the offeree is the same as for the offeror, as would be the case if they are
members in the corporation or the university email network. This is because the
transmission of email through the network depends entirely on the viability of the
ISP for the offeree or the offeror.
For example, if the offeree is in London and the offeror in New York, then the
journey should start from Londons internet service provider of the offeree and go to
another network service provider in the Atlantic and perhaps it will then need two or
more connections prior to it reaching the offerors service provider in New York. The
speed of email messages depends, in these cases, on whether one or more of these
service providers are busy with millions of applications from other internet users.
Considerable delays may occur in email communication between when a message is
sent and when it is received by the recipient. These delays result from the complex
path over which the email is sent. For example, if person A in London sends an email
message to person B in Nigeria, usually there will be no direct link between the
computer systems. This explains why, on occasion, an email takes a longer time than
usual to reach the recipient
It can be said that email is not an instantaneous form of communication, because as
explained previously, there can be gap in time between dispatch and deemed receipt.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 28
This conclusion was recently pointed out in a Singapore case, in the judgment of
Rajah JC, in Chwee Kin Keong v Digilandmall.com Pte Ltd
iii
unlike a fax or a
telephone call, it is not instantaneous. Emails are processed through servers, routers
and internet service providers. Different protocols may result in messages arriving in
an incomprehensible form. Arrival can also be immaterial unless a recipient accesses
the email, but in this respect email does not really differ from mail that has not been
opened.
Usually, an acceptance is considered as having been sent at the time the acceptance
went out of the possession of the offeree and into the possession of the third party
allowed to receive it. The third party, of course, is neither an agent of the offeree nor
of the offeror, but in the situation of email, it is the ISP. Even though the offerees
server is not under the offerees control, it is considered a provider for the internet
service to the offeree and likewise, it is not agent to the offeree, as it is an
independent entity, such as a company server or a university service provider.
In transmission of the acceptance through email, the message is considered to be out
of the offerees position at the time the offeree connects to the internet and presses
the send button. The offeree may receive acknowledgement that the message is
successfully sent (if this acknowledgement is available in his email system),
otherwise the offeree will receive a message in his mail box system, indicating a
failed delivery notice of an email which has not been successfully transmitted. There
are times when a computer freezes upon sending a message, the offeree should at
that time resend the email, because the message may not have been sent or may
have been altered when it was frozen. Clarifying the moment of dispatch by time can
be ensured by looking at the time of sending of the email, is recorded by the ISP and
can be found by looking in the offerees account. This time usually corresponds with
the time which appears on the senders computer at the time of sending the email.
Some email accounts embody a universal GMT timing of the provider of the email
account itself. There is also the provision of time-stamping authority in Information
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 29
Technology Act, 2008. Time-stamping is the process of securely keeping track of the
creation and modification time of a document.
INVITATIONS, OFFER AND ACCEPTANCES
Before we further investigate the details of electronic contracting we must consider
whether these contracts are actually legal and binding. In general, the contract law
will enforce any form of contract supported by consideration, whether oral or written,
formal or informal, as long as the intention of the parties can be clearly discerned to
create legal relationship. If it satisfies, the essentials of the contract according to sec
10 of Indian contract Act as specified at the beginning of this unit, it will be
enforceable. Thus, there are no reasons in principle and legally to prevent the
enforcement of electronic contract.
A contract is formed when there is meeting of mind between the parties. This is
usually found in clear and unambiguous offer followed by similarly clear and
unambiguous acceptance. An important distinction needs to be made here between
an offer, an invitation and an advertisement. A offer is a proposed set of terms which
can form the basis of a contract. An invitation to treat is simply an invitation to make
an offer for a product or service. Hence, an advertisement, as a form of an invitation
to treat, also acts as carrier to information upon which contracting decisions might be
based. Significantly, an offer will always contemplate acceptance and therefore it
must always be something capable of being accepted.
This is particularly important in the Internet context because the distinction between
advertisements, invitations to treat, and offers included in websites are often blurred
by vendors. If there is an offer, an affirmative response means that a contract is
formed. If a statement looks like an offer but it is not capable of being accepted, it is
only an invitation to offer, and then an affirmative response is only an offer. A well-
established real example of an invitation to offer can be found in supermarkets.
Goods on the shelves are presented by the shop as an invitation to offer, and goods
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 30
subsequently being taken to the cash counter and presented by the shopper is treated
as an offer.
Applying these principles to the World Wide Web, the electronic proximity between
the advertisement on web and the actual point of sale is likely to render the status of
a message closer to an invitation to offer in a shop than to an advertisement that we
might see in a magazine. Hence, a consumer who clicks on a form in a click wrap
situation is generally making an offer and the vendor will be the party accepting the
offer. This, of course, is not universally the case, as it is quite possible for a vendor to
make a clear and unambiguous offer on the World Wide Web and the consumer,
through the click of the mouse, accepts the offer.
TERMS OF A CONTRACT
Terms can be incorporated into a contract in a number of ways. A contract can
contain these three distinct types of terms:
Express terms
Terms incorporated by reference
Implied terms
Before a contract can be formally concluded all the terms of the contract must be
brought to the attention of the parties. Otherwise, there cannot be a meeting of
minds. This is crucial both in terms of both e-mail and click wrap contracts. In the
former, parties must take care to avoid contradiction and confusion if negotiations of
terms are held using e-mail; this is especially so if the negotiations are lengthy.
Parties must also take care to identify the documents which are intended to form part
of the contract. In the event that terms of a contract are imprecise, the effect of the
contract may be substantially altered through a different interpretation of the terms
of the terms from that originally intended. In the case of click wrap contracts, web
site designers must take care to ensure that all terms are brought to the attention of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 31
the consumers before they are presented with the opportunity to purchase a product.
Often the terms of click wrap contracts are incorporated by reference.
Incorporating terms by reference is most important for click wrap contracts. This
means that the terms of the contracting parties are set out in different document and
incorporated by reference. In click wrap contracts, the terms and conditions of the
contract are usually located on a separate web page, rather than being embedded in
the contract page. The problem is that both parties must know that these terms are
part of the binding contract. The vendor must take all reasonable steps to bring the
terms to the attention of the other party. As advertisements on web are invitations to
offer and not contracting documents, the potential customers would not expect to
find terms and conditions of contract contained in the web advertisements.
Hence the design of the web site must be such that before the consumer has the
opportunity to click Submit or I Agree, the terms must be clearly brought to his or
her attention. The onus is upon the web designers to enure that consumers read and
acknowledge the terms and conditions. In order to do this effectively, the usual
practise has been to require consumers to tick a box or clicks on the
acknowledgement that the terms and conditions have been read. If the consumer
checks the box or clicks on the acknowledgement, the terms will be incorporated,
regardless of whether they have been actually been read. If this is not done, the
purchase order or other agreement will not proceed.
Implied terms usually arise separately from the contract formation process and are
usually localised. This means that, in the event of a dispute, the governing law of the
contract would be a central concern, as would be the type of contract at issue. So this
becomes removed from the method of contract formulation in general. Terms may
be implied by fact, on the basis of customs or usage, or by construction of the
contract. Questions of implied terms are case-specific and will turn on the particular
relevant laws of a particular jurisdiction, such as unconscionable conduct or business
efficacy or on the subject matter of the contract.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 32
FORMATION OF A CONTRACT AND THE POSTAL
ACCEPTANCE/MAILBOX RULE:
The final step to understand e-contracting is the issue of when and where the
contract is formally made or concluded. The general rule is that contract is made
when acceptance is communicated from the offeree to the proposer/offeror.
Accordingly, there is no contract where the acceptance is not communicated to the
proposer, the reason being that it would be unfair to hold proposer by an acceptance
of which he has no knowledge. The location of the formation is decided according to
where the offeror receives notification of the acceptance. However, there is well-
known exception which was made to facilitate contracting between the parties at a
distance- The postal acceptance rule.
PARTIES AT A DISTANCE
When parties are in the presence of each other, the proposer and the acceptor knows
that the acceptance has been communicated, if they are at a distance, they depend
upon other modes of communication. The modes used may be instantaneous,
namely telephone, telex etc. or they may choose other modes like post, courier,
telegram, fax or email.
The conclusion of distance contracts has been one of the controversial issues in the
law of contract formation. It raises some question marks, especially with regard to
the type of rules that should govern the timing of contract formation. More
specifically, a strong debate has been emerged recently as to whether the postal
acceptance rule may apply in respect to contracting through electronic medium like
email.
First, it has been argued that the postal acceptance rule applies to the Internet
because the communication has been entrusted to a third party such as ISP acting as
a parallel to postal system. Second, it has been argued that the reason for the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 33
application of postal acceptance rule applies because the system of Internet is similar
to postal delivery and hence is non-instantaneous form of communication.
NON-INSTANTANEOUS MODE OF COMMUNICATION AND
FORMATION OF CONTRACT: EVOLUTION OF MAILBOX RULE
The postal acceptance or mailbox rule was first established in the case of the court of
Adams v Lindsell
iv
when the court had to decide the moment of contract formation
by post. The court found that parties when communicating acceptance by post were
not sure at the precise time the acceptance had been communicated. As postal
communication is subject to delay, the parties could not be simultaneously aware of
the communication. This created a number of problems and has led to a formulation
of the rule. This rule as accepted in the common law legal systems is: Where the
circumstances are such that it must have been within the contemplation of the
parties that, according to the ordinary usages of mankind, the post might be used as a
means of communicating the acceptance of an offer, the acceptance is complete as
soon as it is posted.
v

The uncertainty regarding the moment of contract formation does not happen in the
environment of face-to-face communication or even in distance contracting where an
instantaneous method of communication is used. In this kind of contracting, all
parties are aware of contract conclusion and they do not face problematic issues such
as delay or failure of transmission which occur in non instantaneous
communications.
In contrast, the case of Adams v Lindsell, adopted the rule to avoid the extraordinary
and mischievous consequences which could follow if it were held that an offer
might be revoked at any time until the offeree was in the position of accepting it had
been actually received.
vi
This justification for the postal rule appears to provide the
best solution in determining the time that the parties reach consensus ad item and it
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 34
was felt, that at the time of posting the letter, there would be a greater chance of a
meeting of minds occurring than at the later time when the letter was delivered.
Another reason has been suggested for the validity of this rule, is that the offeror
must be considered as having made the offer throughout the whole time that his
offer is in the post, and that therefore, the agreement between the parties is complete
as soon as the acceptance is posted. This idea depends on the assumption that the
offer creates a power that binds both parties and that an acceptance is an exercise of
that power. Consequently, the offeror has, in the beginning, full power to determine
the acts that are to constitute acceptance. However, after the offeror makes that
determination, the legal consequences are out of his hands because an offer has then
become effective and the offeree has an advantage over the offeror in the contract
formation process. The offeree may need additional time to decide whether or not to
accept the offer and during that time, may need to spend money and effort in
reaching to a decision.
JUSTIFICATION OF MAILBOX RULE
It can be said that this rule is effective as it is takes care of both of the business
convenience of the offeree and the fair allocation of risk, as it establishes a finite date
for the contract and avoids circular communication. Any delay which occurs between
sending and receiving post letters creates potential risk for both of parties due to the
uncertainty as to preciously when the message is deemed to have been received. This
justification may be considered as the corner stone for application of the postal
acceptance rule.
For example, if the offeror asks for notification, then the offeree would need
notification of the receipt and so on. Another way of illustrating this is demonstrated
if we consider that A is required to receive B's acceptance, then B should have the
right to receive notification from A, that the acceptance was received, and A should
have the right to receive notification from B, that the notification of receipt of the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 35
acceptance was received and so forth. Carrying this on to its logical conclusion,
putting the risk in the hands of the offeror would appear logical since it is he who is
the master of the offer and he is the position to for or stipulate a specific action in
order to be exposed to the potential risk.
vii

The mailbox rule is further justified on the ground that it limits the power proposer
to revoke the proposal after the offeree has acted upon the offer. The rule is justified
on the basis of commercial convenience.
These traditional justifications have been argued in respect to post contracting since
as we explained above there is a gap of time and a delay between sending a letter and
receiving it and parties are not in a position that they can control transmission of
letters by post. Thus, it can be argued that if electronic contracting is similar to
contracting by post then the postal rule should be applied to electronic acceptances
like emails.
Under the UNDROIT principles, acceptance is complete when it reaches the offeror;
the reason for adoption of the receipt principle being that the risk of transmission is
better placed on the offeror than on the offeree, since it is the former who chooses
the means of communication, who knows whether the chosen means of
communications is subject to special risks or delay and who is therefore able to take
measures to ensure that the acceptance reaches its destination.
viii

Another important reason for applying the postal rule is that it avoids any business
uncertainty regarding the timing of email contracts. For example, applying the
general rule will create uncertainty in what is the definitive time of considering the
email formed. If A sends his email acceptance late Friday afternoon and the recipient
B, left his office at lunchtime not to return until the following Monday, at what time
can we consider the time of receipt? Is it on Monday morning when B returns to work
or at any time when the B opens his email account and accesses the particular email,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 36
even if it was out of the working hours? In fact, applying the postal rule will avoid
such uncertainty and create a definite time regarding to email contract conclusion.
Email is considered to be a non-instantaneous method of communication and
therefore subject to delay. Contracting by email has been considered as the digital
equivalent of the postal system. According to the difficulties with the transmission of
email, delays, failure of networks, hacking by third parties or incorrect email
addresses of intended recipients, may delay or prevent the delivery of an email. They
suggest therefore, that risk of non-delivery of the email, as with the ordinary post,
should lie with the offeror. Nevertheless, it should be kept in mind that similar issues
of delay identified in relation to telexes are similarly applicable to email. In fact, no
universal rule can cover all situations. These possibilities were not sufficient to
persuade courts to find that the general rule of communication should be displaced.
Likewise with email, the mere possibility of delays, incorrect addresses or
technological failures may not be sufficient to create a universal rule that an email
acceptance is effective at a time other than communication.
Generally, courts tend to apply the general rule in cases where there is an
instantaneous method of communication, such as the telephone or the EDI or where
they are virtually instantaneous and direct, such as telex. In the case of Entores Ltd. v
Miles Far East Corporation
ix
, the court concluded that the contract was made when
the acceptance was received by the plaintiffs in London because:
...So far as telex messages are concerned, though the dispatch and receipt of
a message is not completely instantaneous, the parties are to all intents and
purposes in each others presence just as if they were in telephone
communication, and I can see no reason for departing from the general rule
that there is no binding contract until notice of the acceptance was received by
the offeror.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 37
Where the acceptor uses the telephone or telex for communication, the acceptor will
generally know if his communication has not reached the proposer and can try to
send it again. The rule is sound and practical because the oral acceptance may be
drowned by the noise of a flying aircraft or the telephone may go dead. The Supreme
Court of India, in Bhagwandas Goverdhandas Kedia v Girdharilal Purshottamdas
x

has held that in case of oral communication or by telephone or telex, an acceptance
is communicated when it is actually received by the proposer.
It seems that the justifications for applying the postal rule in the age of post may be
valid to be analogized to a new method of communication, such as the email. Email
cannot be considered as an instantaneous method of communication, since there are
some delays and gaps between sending and receiving messages. Parties do not
communicate instantaneously between one other. In contrast, there is much greater
clarity regarding the application of the general rule to website acceptances. Having
examined the basis of the development of the postal rule and applying the reasoning
above, the logical conclusion would be that contracts based on e-mail acceptances do
benefit from the postal rule application.
SUMMING UP
When postal rule is applied to e-mail technical consideration come to the fore. The
fact remains that e-mail is not instantaneous, the packets may not all arrive there
may be congestion on the networks, some of the servers may malfunction and so on.
E-mail is also fragmented when compared to a telephone call and the sender has no
way of knowing whether the receiver will actually get the message.
In relation to click wrap a different method is involved. The communication between
the web client and the server is instantaneous. If the communication between the
parties is broken for whatever reasons, the other party will be immediately notified.
This is due to the built in self-checking mechanism known as checksum. Therefore,
when dealing with click wrap contracts, the postal rule is not applicable as compared
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 38
to e-mail contracting because the line of communication in click wrap is continually
verified, which implies that a communication once sent will be instantly received.
APPLICATION OF MAILBOX/POSTAL ACCEPTANCE RULE TO
ELECTRONIC CONTRACTS- LEGISLATIVE DEVELOPMENTS IN US
AND UK
Even though the electronic commerce legislation, in the UK and the US, do not aim
to provide substantial changes to the rules of contract formation, particularly
regarding email contracting, they do provide clarification of the contracting process,
especially in contracting through websites.
A. Position in US
The US laws are active in determining the time and place of dispatch and receipt of
Electronic Commerce has the same approach as the Uniform Electronic Transactions
Act (UETA) as a main source, US legislation relating to this discussion reject the
application of the postal acceptance rule for electronic transactions and adopt the
general rule (receipt rule), for the acceptance to be effective. The reasons for this are
firstly, in the US, the application of the general rule depends on whether the method
of communication is instantaneous or substantially instantaneous as two-way
communication. For example, in cases regarding contracting by fax or telephone,
even though the parties are not in physical proximity of one another, the general
rule is applied to these types of communication. Since email cannot be described as
direct and instantaneous communication thus it cannot be within this argument.
Secondly, US laws, especially the UETA, clarifies the moment when a message is
considered as having been received by the recipient and when it could be accessible
in order to be received. The UETA contains a section entitled Time and Place of
Sending and Receipt, which states that an electronic record is deemed to be sent
when it is properly addressed or directed to another recipient, is in a form capable of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 39
being read by the other parties' system and when it is out of the control of the sender
but however, it does not establish when the acceptance becomes effective and the
contract is formed.
Additionally, subsection 15(b) of the UETA, states that an electronic record is
deemed received when it enters an information processing system designated by the
recipient for receiving such messages (e.g., home office), and "it is in a form capable
of being processed by that system." This Section closely follows Art 15 of
UNICITRAL Model law.
The Uniform Computer Information Transactions Act (UCITA) 1999, which is
uniform commercial code for software licenses and other computer information
transactions, goes further, with detailed provisions to indicate explicitly the
application of the general rule in contracting by electronic means. Article 215 of the
Act provides for electronic messages to be in effect at the time of receipt, regardless
of whether any individual is aware of that receipt. Receipt is defined as: In the case
of an electronic notice coming into existence in an information processing system
or at an address in that system in a form capable of being processed by or perceived
from a system of that type by a recipient, if the recipient uses, or otherwise has
designated or holds out, that place or system for receipt of notices of the kind to be
given and the sender does not know that the notice cannot be accessed from that
place.
xi

In this Act, under the section entitled Offer and Acceptance in General, s.203 (4), it
states that if an offer in an electronic message evokes an electronic message
accepting the offer, a contract is formed when an electronic acceptance is received.
This means that UCITA considers that the general rule should apply to electronic
transactions, even if the recipient is not aware of its receipt.
B. Position in UK
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 40
At the English legislation level, there is no indication of treatment of conclusion of
contract or timing issues as there is in the UETA or the UCITA. The Regulations of
Electronic Commerce 2002 do not have any article indicating when a message is
considered as having either been sent or received. These Regulations brought the
majority of the provisions of the Directive into force on 21st August 2002. The
Electronic Commerce Directive requires member states to establish a somewhat
more complicated rule that departs from the UETA and the UNCITRAL, Article 11
provides: Member states shall ensure, except when otherwise agreed by parties who
are not consumers, that in cases where the recipient of the service places his order
through technological means, the following principles apply: the service provider has
to acknowledge the receipt and they are deemed to be received when the parties to
whom they are addressed are able to access them.
Unlike UETA, the Regulations do however, focus on accessibility and the contracting
process on the website, rather than analyze in depth, the general and vague concept
able to access. This is because the Regulations aim to provide transparency by
requiring information to be supplied. The best example of this information is the
duty on a service provider to provide certain information about the procedures of
how contracts can be concluded by electronic means. However, in the drafting
process of the Ecommerce Directive regarding formation of electronic contracts,
there was considerable debate as how best to regulate this issue and unify it within
Europe. The first and second draft of the Directive contained a section entitled
Moment at which the contract is concluded. According to the drafting process, the
electronic contract is considered to be formed upon the final confirmation of receipt
from the consumer after he has received the second acknowledgement from the
consumer.
The draft of the E-commerce Directive contained a novel method for timing issues in
formation of electronic contracts; this is the confirmation of receipt of the
acknowledgment. In this section, drafters of the Directive wanted to create
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 41
uniformity and certainty in online contracting throughout Europe. In the final draft,
this section has been changed, under the name Placing of order and reduces the
number online contract formation stages to three. Moreover, provisions which
govern the mechanism of forming online contracts (Regulation 11), do not apply for
contracts concluded exclusively by email. For example, Regulation 11 (2) b of the E-
commerce Regulations makes reference to an acknowledgment of receipt of the
order without undue delay and by electronic means. This Regulation does not
apply to email acceptances, but it does apply to website contracting in which the
service provider shall send an acknowledgement of receipt of the order without any
due delay to the consumer and that service is not available in the case of emails.
ELECTRONIC CONTRACT AND INFORMATION TECHNOLOGY ACT ,
2000
RECOGNITION OF E-CONTRACTS
The Indian Contract Act, 1872 governs the manner in which contracts are made and
executed in India. It provides for the essentials of a valid contract, manner of offer
and acceptance, rights and obligations of the parties and remedies in case of breach
of contractual terms.
Anticipating the difficulties likely to arise from this, the Information Technology
Act, 2000 in Section 13 provides that unless otherwise agreed to between the
originator and the addressee, the dispatch of an electronic record occurs when it
enters a computer resource outside the control of the originator. If the addressee has
designated a computer resource for the purpose of receiving electronic records and it
is send to such resource, the receipt occurs at the time when the electronic, record
enters the designated computer resource. If instead the electronic record is sent to a
computer resource of the addressee that is not the designated computer resource,
receipt occurs at the time when the electronic record is retrieved by the addressee. If
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 42
the addressee has not designated a computer resource along with specified timings, if
any, receipt occurs when the electronic record enters the computer resource of the
addressee. The sender of the electronic record is entitled to stipulate that the record
sent shall be binding only on receipt of acknowledgment.
Unless otherwise agreed to between the originator and the addressee, electronic
record is deemed to be dispatched at the place where the originator has his place of
business, and is deemed to be received at the place where the addressee has his place
of business. The position will be same even when the place where the computer
resource is located may be different from the place where the electronic record is
deemed to have been received.
DETERMINATION OF PLACE OF BUSINESS
Sec 13 (5) of IT Act provides for the following provisions to determine the place of
business:
(a) if the originator or the addressee has more than one place of business, the
principal place of business, shall be the place of business;
(b) if the originator or the addressee does not have a place of business, his usual place
of residence shall be deemed to be the place of business;
(c) "usual place of residence", in relation to a body corporate, means the place where
it is registered.
RECENT AMENDMENTS TO PROVIDE VALIDITY TO ELECTRONIC
CONTRACTS
The amendment to the Information Technology Act, 2000 inserted the section 10 (A)
which states that, where in a contract formation, the communication of proposals,
the acceptance of proposals, the revocation of proposals and acceptances, as the case
may be, are expressed in electronic form or by the means of an electronic record, as
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 43
such contract shall not be deemed to be unenforceable solely on the ground that
such electronic form or means was used for that purpose.
New Section 10 A specifies that contract formation is possible with offer and
acceptance being in electronic form.
Case Law on Electronic Contract: The issues relating to electronic contracts place
and time were addressed by the Allahabad High Court in P.R. Transport Agency vs.
Union of India & others
xii
.
The defendant, Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different
lots. P.R. Transport Agencys (PRTA) bid was accepted for 4000 metric tons of coal
from Dobari Colliery. The acceptance letter was issued on 19th July 2005 by e-mail to
PRTAs e-mail address. Acting upon this acceptance, PRTA deposited the full amount
of Rs. 81.12 lakh through a cheque in favour of BCC. This cheque was accepted and
encashed by BCC. BCC did not deliver the coal to PRTA. Instead it e-mailed PRTA
saying that the sale as well as the e-auction in favour of PRTA stood cancelled "due to
some technical and unavoidable reasons".
The only reason for this cancellation was that there was some other person whose bid
for the same coal was slightly higher than that of PRTA. Due to some flaw in the
computer or its programme or feeding of data the higher bid had not been
considered earlier. This communication was challenged by PRTA in the High Court
of Allahabad. Bharat Coking Coal Ltd. objected to the territorial jurisdiction of the
Allahabad High Court on the grounds that no part of the cause of action had arisen
within U.P.
The court held that contracts made by telephone, telex or fax, are complete when and
where the acceptance is received. However, this principle can apply only where the
transmitting terminal and the receiving terminal are at fixed points. In case of e-
mail, the data (in this case acceptance) can be transmitted from any where by the e-
mail account holder. It goes to the memory of a 'server' which may be located
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 44
anywhere and can be retrieved by the addressee account holder from anywhere in
the world. Therefore, there is no fixed point either of transmission or of receipt.
Section 13(3) of the Information Technology Act has covered this difficulty of no
fixed point either of transmission or of receipt. According to this section ...an
electronic record is deemed to be received at the place where the addressee has his
place of business."The acceptance of the tender will be deemed to be received by
PRTA at the places where it has place of business. In this case, the place of business is
located in U.P. and hence Allahabad High Court was held to have jurisdiction.
CAUSE OF ACTION TO BE DETERMINED ACCORDING TO CODE OF
CIVIL PROCEDURE, 1908
Cause of action means every fact which, if denied, will be necessary for the plaintiff
to prove in order to support his right to the judgment of the court. It does not
comprise every piece of evidence which is necessary to be proved to entitle the
plaintiff to a decree. Everything which if not proved would give a defendant a right to
an immediate judgment must be part of the cause of action. It is, in other words, a
bundle of essential facts which it is necessary for the plaintiff to prove before he can
succeed in the suit.
Section 20 of the C.P.C provides that
suits to be instituted where defendants reside or cause of action arises. Subject to
the limitations aforesaid, every suit shall be instituted in Court within the local limits
of whose jurisdiction.
(a) the defendant, or each of the defendants where there are more than one, at the
time of the commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on business, or
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 45
personally works for gain, provided that in such case either the leave of the Court is
given, or the defendants who do not reside, or carry on business, or personally work
for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
A corporation shall be deemed to carry on business at its sole or principal office in
India or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in
Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway
Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of
the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B
carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at
Benaras, B and C make a joint promissory note payable on demand, and deliver it to
A. A may sue B and C at Benaras, where the cause of action arose. He may also sue
them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these
cases, if the non-resident defendant objects, the suit cannot proceed without the leave
of the Court.
The making of a contract is part of the cause of action and a suit on contract can
always be filed at the place where it was made. Ordinarily, acceptance of an offer and
its imitation result in a contract and hence a suit can be filed in a court within whose
jurisdiction the acceptance was communicated. The performance of a contract is a
part of cause of action and a suit in respect of the breach can always be filed at the
place where the contract should have been performed or its performance completed.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 46
As regards jurisdiction, the normal rule as described above in C.P.C, 1908 will apply.
For reasons discussed above in connection with communication by emails etc, the
postal rule must be applied to the question of formulation, time and place of
contracts and not the rule applied to instantaneous modes of communications.

i
According to S.2 (1) (za) the Information Technology Act, 2000, originator means a person who sends,
generate, stores or transmits any electronic message or causes any electronic message to be sent, generated,
stored or transmitted to any other person but does not include an intermediary.
ii
According to S.2 (1) (b) of the Information Technology Act, 2000 "addressee" means a person who is
intended by the originator to receive the electronic record but does not include any intermediary.
iii
[(2005)SGCA 2]
iv
([1818] 1 B &Ald,681)
v
Henthorn v Fraser [1892] 2 Ch 27 at 33)
vi
(See, House hold Fire and Carriage Accident Ins.Co.V. Grant (1879) LR Ex D 216 at 221; see also Re
Imperial Land Co of Marseilles (1872) LR 7 Ch App 587 at 594)
vii
Marwan Al Ibrahim, Alaeldin Ababneh & Hisham Tahat, Journal of International Commercial Law and
Technology , Vol.2,Issue 1(2007)
viii
UNDROIT Principles, comment below Article 2.6
ix
[1955] 2 QB 327
x
AIR 1966 SC 543
xi
(See UCITA Art. 102(A) (52))
xii
AIR2006All23, 2006(1)AWC504
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 47
PUBLIC INTEREST LITIGATION (PIL):
EFICACY AND DANGERS
CHINTAMANI ROUT
INTRODUCTION
Public Interest Litigation, Advocacy for public interest and free legal aid, all are for the
protection of poor, illiterate and weaker sections of the society. The Constitution of India
emphasises on the equal justice to all persons. The Public Interest Litigation in India is
comparatively a recent innovation of the judiciary, initiated primarily to provide access to
justice and equal justice to the disadvantaged sections of the society who are not possessed
of adequate means or sufficient awareness to enforce their fundamental rights guaranteed
under the constitution. Till 1960 and seventies, the concept of litigation in India was still in
rudimentary form and was seen as a private pursuit for the vindication of private vested
interests. Litigation in those days consisted mainly of some action initiated and continued by
certain individuals, usually, addressing their own grievances or problems. Thus, the
initiation and continuance of litigation was the prerogative of the injured person or the
aggrieved party. Even this was greatly limited by the resources available with those
individuals. There were very little organised efforts or attempts to take up wider issues that
affected classes of consumers or the general public at large. This form of the judicial
process also relaxed the rule of locus standi to enable a social activist, individual or group of
persons to bring to the Supreme Court any issue of public interest wherein violation of any
fundamental right is alleged, for its protection by resort to constitutional remedy under
article 32 of the constitution. This is the underlying principle in Article 39A of the
constitution. The procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil
Procedure Code, 1908 for representative action.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 48
MEANING AND OBJECT:
Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in
the interest of that nebulous entity: the public in general. Prior to 1980s only the aggrieved
party could personally knock the doors of justice as a proxy for the victim or the aggrieved
party. In other words, only the affected parties had the locus standi (standing required in
law) to file a case and continue the litigation and the non affected persons had no locus
standi to do so. And as a result, there was hardly any link between the rights guaranteed by
the Constitution of Indian Union and the laws made by the legislature on the one hand and
the vast majority of illiterate citizens on the other.
However, all these scenario gradually changed when the post emergency Supreme Court
tackled the problem of access to justice P N Bhagwati and Justice V R Krishna Iyer were
instrumental of this juristic revolution of eighties to convert the apex court of India in to a
Supreme Court for all Indians. And as a result any citizen of India or any consumer groups
or social action groups can approach the apex court of the country seeking legal remedies
in all cases where the interest of general public or a section of public are at stake. Further,
public Interest cases could be filed without investment of heavy court fee as required in
private civil litigation. PIL may be taken to mean a legal action initiated in a court of law for
the enforcement of the public interest or general interest in which the public or a class of
the community has pecuniary interest or have some interest because it will affect their legal
right or liabilities. In Janata Dal v H.S. Choudhury, AIR 1993, Public Interest Litigation has
been defined as a legal action initiated in a court of law for the enforcement of public
interest or general interest in which public or a class of the community have pecuniary
interest or some interest by which their legal rights or liabilities are affected.
In Sheela Barse v Union of India, AIR 1988 SC 2211, The Supreme Court has cleared that in
public interest litigation, unlike traditional dispute resolution mechanism; there is no
discrimination or ad-judication of individual rights. The proceedings in a public Interest
Litigation are intended to vindicate and effectuate the public interest by prevention of
violation of the rights, constitutional or statutory or sizeable segments of the society while
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 49
owing to poverty, ignorance, social and economic disadvantages cannot themselves assert
and quite often not even aware of those rights. The technique of Public Interest Litigation
serves to provide an effective remedy to enforce these groups rights and interests.
PIL- A BOON:
In public Interest Litigation (PIL) vigilant citizens of the country can find an expensive legal
remedy because there is only a normal fixed court fee involved in it. Further the litigations
can focus attention on and achieve results pertaining to larger public issues, especially in
the fields of human rights, consumer welfare and environment. Ordinarily, the person
whose fundamental or other right has been violated may file petition under Article 32 or
226, whichever is applicable to move the court or enforcement thereof. The Public Interest
Litigation is exception to the general rule. The Court entertains the public interest litigation
at the instance of public spirited citizens acting confide for the enforcement of fundamental
right of a person in custody or of a class or group of persons who by reason of poverty or
disability or socially or economically disadvantaged position find it difficult to approach the
court for redress. Any member of the public acting bonafide can move the court for relief
under article 32 and 226, so that the fundamental right may become meaningful not only
for the rich and the well-to-do who have the means to approach the court but also for the
large masses of people who are living a life of want and destitution and who are by reason of
lack of awareness, assertiveness and resources unable to seek judicial redress..
In Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802, an organisation dedicated to
the cause of release of bonded labourers gave a letter to the Supreme Court and thereby
informed it about the existence of the bonded labourers in Faridabad District of State of
Haryana for the issue of writ for the release of bonded labourers and for the proper
implementation of the various provisions of the constitution and statutes with a view to end
suffering and helplessness of such labourers. The court treated the letter as writ petition and
entertained it and appointed a commission to make inquiries and report to the court about
the existence of bonded labourers in the said area. The Court expressed view that Public
Interest Litigation should not be taken to be in the nature of adversary litigation. It is a
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 50
challenge and opportunity to the government and its officers to make basic human rights
meaningful to the deprived and vulnerable sections of the community and to assure them
social and economic justice which is the rigid tune of the Constitution. In case of S.P.Gupta
v Union of India, AIR 1982 SC 149, a letter given by the public spirited individuals or social
action group is treated as writ petition by the Court and Court readily responded to it. Public
Interest Litigation has been evolved with a view to bring justice within the easy reach of the
poor and the disadvantaged section of the community.
ABUSE OF THE PIL
The Public Interest Litigation has been criticised much. There is a danger of misuse. The
development of PIL has also uncovered its pitfalls and drawbacks. As a result, the Apex
Court itself has been compelled to lay down certain guidelines to govern the management
and disposal of public interest litigation and the abuse of PIL is also increasing along with
its extended and multifaceted use. In some cases the affected parties addressed letters
directly in the name of judges of the Supreme Court and they used to convert the letters in
to the writ petitions. This practice has been criticised on the ground that there would be a
danger of litigations choosing a judge and in turn judges choosing their litigants. To avoid
this defect now the practice developed by the court is that the judges passes the letter to the
registrar for being dealt with according to the normal practice of the court. The suo-motu
action by judges based upon the news papers has been criticised on the ground that thereby
the judge assumes the role of advocate as well and thus, acting against the judicial precept,
no- body should be a judge in his own case.
It is also criticised on the ground that it can be misused for private motive or political ends.
To avoid this defect the court has expressed the view that the persons who moves the Court
for judicial redress must be acting confide with a view to vindicating the causes of justice
and if he is acting for personal gain or private profit or out of political motivation or other
oblique consideration, the Court should not allow itself to be activated at the instance of
such person and must reject it. To avoid the danger of persons dressing up their personal
grievance in public interest garb, the Court has adopted the view that it is not meant for
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 51
correcting individual wrong or injury. The view of the Court has been that as far as possible
it should not entertain cases of individual wrong or injury at the instance of a third party.
Public Interest Litigation has also been criticised on the ground that it would result in the
tremendous increase in the litigation and it would develop uncertainty as to the admission
of the petition for hearing. It is said that there is no guideline as to the cases which should
be admitted and the cases which should not be admitted. Due to this the Public Interest
Litigation has become unpredictable. To avoid this defect the Supreme Court has framed
certain guidelines for entertaining letters/petitions as public interest litigation.
The petition involving individual or personal matter shall not be entertained as public
Interest Litigation matter except as indicated hereinafter. Ordinarily the letter or petition
falling under the following categories should be entertained as Public Interest Litigation, (a)
neglected children, (b) bonded labour matters, (c) non-payment of minimum wages to
workers and exploitation of casual workers and also complaints relating to the violation of
labour laws, (d) petitions from prisons, complaining of harassment or for premature release,
death in prison, transfer, release on personal bond, speedy trial, (e) petitions against
atrocities on women, bride burning, rape murder etc. , (f) petitions against police for
refusing to register a case and also for harassment or torture of villagers by co-villagers or
by police from persons belonging to the Scheduled Castes and Scheduled Tribes and
economically backward classes, (h) petitions from riot victims, (i) petitions from family
pensions, (j) petitions pertaining to the environment pollution, disturbance of ecological
balance, maintenance of forest and wild life, maintenance of heritage and culture and other
matters of public importance; petitions for early hearing of cases pending in Courts,
petitions relating to service matters, pension and gratuity, petitions pertaining to the land
lord-tenant matters and petitions relating to the admission to the medical college and other
Educational Institutions will not be entertained as Public Interest Litigation.
These guidelines will, no doubt, introduce certainly in this respect and most of the defects of
the PIL will be removed. In the land mark judgment of Raunaq International Limited v IVR
Construction Ltd, Justice Sujata V manohar rightly enunciated that, when a stay order is
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 52
obtained at the instance of a private party or even at the instance of a body litigating in
public interest, any interim order which stops the project from proceeding further must
provide for the reimbursement of costs to the public in case ultimately the litigation started
by such an individual or body fails. In other words the public must be compensated both for
the delay in the implementation of the project and the cost escalation resulting from such
delay.
The Supreme Court on 7th July, 2012 dismissed a public interest litigation (PIL) seeking
direction to the Central Government to conduct an inquiry against Presidential Candidate
Pranab Mukharjee for canvassing votes before resigning as the Union Finance Minister. The
Apex Court, a bench of Justice Aftab Alam and Justice H L Gokhale dismissing the PIL by
Advocate Manohar Lal Sharma, said this Court was not a theatre for this farcical play. The
Court imposed a cost of Rs.50, 000/ on petitioner which it subsequently withdraw with a
warning that any such repeat of farcical PIL in future would invite heavy cost.
CONCLUSION
Public Interest Litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the people friendly concept of
PIL. However, bonafide litigants of India have nothing to fear. Only those PIL activists who
prefer to file frivolous complaints will have to pay compensation to the opposite parties. It is
actually a welcome move because no one in the country can deny that even PIL activists
should be responsible and accountable. It is also notable here that even the Consumers
Protection Act, 1986 has been amended to provide compensation to opposite parties in cases
of frivolous complaints made by consumers. In any way, PIL now does require a complete
rethinking and restructuring. Overuse and abuse of Public Interest Litigation can only make
it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all
citizens of the country, it ought to be used by all litigants as a substitute for ordinary ones or
as a means to file frivolous complaints. PIL has translated the rhetoric of fundamental
rights in to living reality for at least some segments of our exploited and downtrodden
humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 53
of asylums and care-homes are living in sub-human conditions, children working in
hazardous occupations and similar disadvantaged sections. The development of Public
Interest Litigation have in-fact receded to the background and irresponsible PIL activist all
over the country have started to play a major but not a constructive role in the arena of
litigation. They try to utilise this extraordinary remedy, available at a cheaper cost, as a
substitute for ordinary ones. The Court, is therefore, require to be vigilant to arrest this
trend, stricter vigilance is required and there is need for framing of rules to regulate the
PILs to prevent its misuse in any form. Judicial activism may be taken to mean the
movements of judiciary to probe in to the inner functioning of the other organs of the
government. The judicial activism is, no doubt, the result of inactiveness on the part of the
executive and legislature. It is the function of the legislature to make law and of the
executive to implement the law but both the organs have failed to discharge their functions
satisfactorily. IN such circumstances, it is not the power but duty of the Court to uphold the
Constitution and compel the other organs of the government to discharge their functions
properly. The Supreme Court being the guardian of the Constitution cannot remain silent
spectator. It can direct the legislature and executive to discharge their functions assigned to
them by the Constitution. Hence any change to improve it further should be encouraged
and welcomed.
REFERENCES:
1. Joshi, K.C, The Constitutional law of India, Central law publication, First edition 2011.
2. Johari, J.C., Indian Government & politics Fourth edition 1979, Vishal publication Delhi- Jallandhar.
3. Jain, M.P, Indian constitutional law, Wadhwa, Nagpur 2005.
4. Pande, G.S Constitutional law of India, Eleventh edition, 2009 university Book House, Jaipur.
5. Pandey ,J.N., Constitutional law of India C.L.A Allahabad,2006
6. Pylee, M.V., An introduction to the Constitution of India, New Delhi,1998
7. P. Bhasker Mohan, Public Interest Litigation, Published in AIR, 1993 Journal Section, p.17
8. RAI Kailash, Public Interest Lawyering, Legal Aid and Para-Legal Services, Central Law Publication,2000
9. Rai Kailash , The Constitutional law of India ,C.L.A Allahabad , seventh edition, 2008.
10. Shukla, V.N., Constitutional law of India E.V.C, Lucknow , 2004
11. BAkshi, P.M. The Constitution of India, Universal Publication, Tenth edition 2010
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 54
REVISITING THE CONCEPT OF PAROLE IN INDIA
MANISHA CHAKRABORTY
DIPA DUBE
INTRODUCTION
Parole is an integral part of the correctional process. It is a kind of consideration granted to
the prisoners to help them to come back into the mainstream of life. It is nothing but an
instrument of social rehabilitation of the prisoner. In recent times, however, the concept has
seen a wide shift with parole been utilized by the rich and influential class to escape the
prison sentence. Thus, we have the infamous examples of Manu Sharma
i
, Bibi Jagir Kaur
ii
or
Biti Mohanty
iii
who are enjoying the intermittent bliss of free life, even after committing
heinous offences and conviction. In contrast, stands the lakhs of other prisoners, whose pleas
of parole fall in deaf ears, and being poor and uninfluential, they do not have means to
utilize the process or are unjustifiably refused the benefit on flimsy grounds. The present
article is an attempt to revisit the concept of parole, its underlying object, means and
processes in the legal system and finally, the issues which are of immediate concern in
recent times.
CONCEPT AND PHILOSOPHY BEHIND PAROLE
The word Parole comes from the French word je donne ma parole meaning I give my
word, while the dictionary definition is word of honour
iv
. The term parole was first coined
in a correctional context in 1847 by Samvel G. Howe, a Boston penal reformer. Later, Parole
was introduced by Brockway Zebulon in the year 1876 as a way to reduce jail overcrowding
and at the same time as a way to rehabilitate prisoners by encouraging them to win their
way out of prison through good behavior. Parole is rewards granted to prisoners for good
behavior, they entail a reduction in the number of years and months one serves in prison
v
.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 55
Parole had its root in the Positivist School. The Classical School of thought opined that
people are free to choose their own conduct. While committing any crime, an offender
always calculates his gain, his pleasure, at the cost of others pain. So he must be punished.
But the Positivist school argued that it is the circumstance which forces anybody to commit
crime. So he must be rehabilitated. From there the thought of parole arose. It provides a
second chance to the prisoner to rehabilitate himself. The offender might have committed
an offence, but it is not desirable that he always be labeled and must not be given any
chance to rehabilitate himself. Its objectives are twofold: the rehabilitation of the offender
and the protection of society. It is a means of helping the inmate to become a law-abiding
citizen, while at the same time ensuring that he does not misbehave or return to crime
vi
.

Parole ideally includes treatment in the form of supervision, guidance and assistance. It has
been rightly held that all released prisoners can benefit from the guidance of parole
officers, but the benefit that society itself would derive if all prisoners were kept under close
surveillance during the period of adjustment immediately following incarceration, is also
considerable
vii
.A prisoner who has spent a decade inside has lost touch with the everyday
world of transport, shopping and renting, but has gained a set of different everyday living
skills relevant to prison life that needs to be unlearned
viii
.
Parole gives a chance of reformation to the prisoner. It can have a positive impact towards
changing the prisoners attitude to what they have done and make them come to accept that
their behavior was wrong
ix
.
THEORETICAL FOUNDATIONS OF PAROLE
There are a number of theories which state as to how and why parole as a means of
reformation has come into being and provide the rationale in introducing the same into the
criminal justice system
x
.
Grace Theory: The theory draws its vitality from Justice Cardozos famous dictum in Escoe v
Zerbst that probation or suspension of sentence comes as an act of grace. Under the grace
theory, both the establishment of a parole system and the release of an individual prisoner
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 56
are gratuitous acts by a merciful executive
xi
. Parole is analogized to a pardon, the grant of
which was an act of grace. Using the grace theory, the courts have been able to dismiss the
possibility of prisoners rights to be paroled and to minimize the legal protections accorded
a parolees limited freedom. When the board grants a parole, it does so as a matter of grace
and not as a duty
xii
. According to the theory, since parole is a gift, it may be conditioned as
the grantor pleases. Thus, in permitting revocation of the gift, whatever the grounds of
revocation, the courts can maintain a defensible position.
Contract Theory: When the parolee leaves the prison, he often signs a form setting forth the
conditions of his release. This formality has given rise to the contract theory. The parolee
accepts the conditions of his parole just as a party to a business contract agrees to be legally
bound by its terms. Because he has accepted the parole terms, whatever rights they cut off,
the parolee is stopped from complaining about those terms. As all of the meanings derive
from the French parole meaning word, the term came to be associated with the release of
prisoners based on their word of honor to abide by certain restrictions. Consistent with the
contract concept, theoretically, the parolee may reject the proffered terms. The rejection
option finds its origin in United States v. Wilson
xiii
. The Court noted that acceptance was a
requisite of an effective pardon
xiv
.
Custody Theory: Parole statutes specifically state that parolees remain in the legal custody
of the warden, parole board, or other agent of the executive. From this, courts have derived
the custody theory. Parole is in legal effect imprisonment, and the parolee is
constructively a prisonerfettered by the conditions and restrictions of his parole. The
parolee is in substantially the same position as a trusty..
xv
A violation of the conditions
of his release relegates him to the status of an escaped prisoner. As are the other theories,
the custody theory is often used to insulate parole matters from judicial examination and
review on both non constitutional and constitutional grounds. The parolee is limited to the
status of an inmate, and parole is the administrative exercise of the prison discipline
authority, subject to the wide discretion granted prison officials when dealing with persons
committed to their custody.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 57
Exhausted Rights: The exhausted rights theory is a concomitant of the custody theory. Its
origins lie in the view that parole is a part of the prison system, and not a part of the
sentencing process. After the accused is convicted by a trial in which all his rights are
protected, constitutional guarantees do not extend to a later enforcement of punishment
already validly imposed. In short, the theory posits that the accused is entitled to a fixed
quantum of due process protection, and that this is satisfied by his original trial and
sentence. The prisoners due process rights are then exhausted until the end of his
maximum sentence. This theory is clearly addressed to the criminal case and criminal
prosecutions applications of the fifth and sixth amendments, and seeks to insulate the
parole process from applications of the amendments by denying that post-conviction
disposition is within their scope
xvi
.
Parens Patriae: Closely tied to custody is the parens patriae theory. Based on the
rehabilitation model of correction, parens patriae limits the rights of prisoners and parolees
on the basis of a perceived need for great discretion and flexibility in rehabilitating the
parolee. It assumes that the Board of Parole as an identity of interest with the parolee to
foster his rehabilitation
xvii
because one need not be protected from another who has an
identity of interest, the theory serves to insulate the parolee from judicial concern. This
rationale and the consequences of this theory are comparable to those long applied in the
juvenile law area, but rejected not many years ago in In re Gault.
xviii


PAROLE IN INDIA
In India, the grant of Parole is largely governed by the rules made under the Prison Act,
1894 and Prisoner Act, 1900. Each of the States has its own parole rules, which have minor
variations with each other.
xix
There are two types of parole- custody and regular. The custody
parole is granted in emergency circumstances like death in the family, serious illness or
marriage in the family. It is limited to a time span of six hours
xx
during which the prisoner
is escorted to the place of visit and return therefrom. The grant of parole is subject to
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 58
verification of the circumstances from the concerned police station and is granted by the
Superintendent of Jail
xxi
.

Regular Parole is allowed for a maximum period of one month, except in special
circumstances, to convicts who have served at least one year in prison. It is granted on
certain grounds such as:
Serious Illness of a family member
Accident or Death of a family member
Marriage of a member of the family
Delivery of Child by wife of the convict
Maintain family or social ties
Serious damage to life or property of the family of convict by natural calamities
Pursue filing of a Special Leave Petition.
Certain categories of convicts are not eligible for being released on parole like prisoners
involved in offences against the State, or threats to national security, non-citizens of India
etc. People convicted of murder and rape of children or multiple murders etc. are also
exempted except at the discretion of the granting authority
xxii
.
As per procedure, after an inmate seeks parole, jail authority (Superintendent) asks for a
report from the police station that had made the arrest. The report, with all other papers like
medical report (in case of illness being reason for parole), recommendation of the
Superintendent are then sent to the Deputy Secretary, Home (General), State Government
which decides on the application
xxiii
. In some States, the application along with the police
report and recommendation is sent to the Inspector General of Prison, which is then
considered by the District Magistrate. The State Government takes the decision in
consultation with the District Magistrate. A prisoner who overstays parole is deemed to have
committed an offence under Section 224 Indian Penal Code, 1860 and may be prosecuted with Government
sanction and forfeit all remissions earned.
JUDICIAL APPROACH TOWARDS GRANT OF PAROLE
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 59
Penological innovation in the shape of parole is claimed to be a success in rehabilitation and
checking recidivism
xxiv
. Thats the view of the Indian judiciary. In Mohinder Singh
xxv
, parole
has been defined as a conditional release of a prisoner, generally under supervision of a
parole officer, who has served part of the term for which he was sentenced to prison. Parole
relates to executive action taken after the door has been closed on a convict. During parole
period there is no suspension of sentence but the sentence is actually continuing to run
during that period also.
xxvi

In Babu Singh and Ors. v State of U.P.
xxvii
, Justice Krishna Iyer remarked that It is not out
of place to mention that if the State takes up a flexible attitude it may be possible to permit
long spells of parole, under controlled conditions, so that fear that the full freedom if bailed
out, might be abused may be eliminated by this experimental measure, punctuated by
reversion to prison. Unremitting insulation in the harsh and hardened company of prisoners
leads to many unmentionable vices that humanizing interludes of parole are part of the
compassionate constitutionalism of our system
xxviii
.
In Babulal Das v The State of West Bengal
xxix
, the Court opined that persons kept
incarcerated and embittered without trial should be given some chance to reform
themselves by reasonable recourse to the parole power calculated risks, by release for
short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely
exercised. Again in Inder Singh v The State (Delhi Administration)
xxx
the Court has
emphasized on the need for liberal use of parole even in the case of heinous crimes.
xxxi

In the recent case of C.A. Pious v The State of Kerala and Anr.
xxxii
, while discussing the scope
of the term life imprisonment, the apex court held In our view, penal humanitarianism
and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and
other humanizing strategies for inmates so that the dignity and worth of the human person
are not desecrated by making mass jails anthropoid zoos. Human rights awareness must
infuse institutional reform and search for alternatives.
xxxiii
. It added that Section 433A Cr
PC does not forbid parole or other release within the 14-year span. So to interpret the section
as to intensify inner tension and intermissions of freedom is to do violence to language and
liberty.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 60
CRITICAL ISSUES IN PAROLE
Two significant issues arise in case of Parole in contemporary India- one, the refusal of
grant of parole on insufficient grounds and second, the misuse of parole. A glance at the
statics of Prison Population in the year 2011 reveals that there are about 128592 convicts
lodged in different prisons in India. These persons have been found guilty of different
offences under the Penal Code and special laws. Out of that, 28581 have been temporarily
released in the year 2011, just about 22% of the prison population. Some states have
recorded an appreciable number of released convicts like Punjab, Tamil Nadu, Haryana,
while other States have recorded substantially low numbers in this regard. Though the
release of prisoners is dependent upon several factors, it is important to emphasize that
probably the provision of parole is not being utilized to the full.
Details of Prisoners on Parole in Select States of India (2011)
Sl.
No
State Prison
Population
(Convicts)
Released on
parole
Parole
Absconde
d
1 Punjab 7526 6646 65
2 Maharashtra 7952 1706 333
3 Uttar Pradesh 28051 113 19
4 Rajasthan 6159 1977 39
5 Himachal
Pradesh
942 464 27
Source: Prison Statistics, National Crime records Bureau, 2011.
MISUSE OF PAROLE: A ROUTE OF ESCAPE AND REOFFENDING?
While the notion of parole has been emphasized and re-emphasized by the Judiciary and
penologists alike to reduce the ills of prison life, whether parole really serves a purpose or
provides a means to escape becomes a significant question. The recent case of Manu Sharma
drew the ire of the entire nation towards a casual prison administration, and an even more
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 61
casual State Government, which granted and vociferously supported the grant of Parole to a
convict in the Jessica Murder case.
In Sidharth Vashisht @ Manu Sharma v The State (N.C.T. of Delhi)
xxxiv
, Manu Sharma
murdered Jessica on 30
th
April, 1999 at about 2 a.m. Manu belonged to a rich influential
political family. On 20
th
December, 2008 he was sentenced with life imprisonment and fined
by the Delhi High Court. On 24
th
September, 2009, he was granted parole for one month.
Later it was extended to one more month. Manu Sharma asked for parole on three grounds:
to attend religious rites for his late grandmother, to tend to his ageing mother and, as the
largest shareholder of Piccadilly Industries, to take care of the familys business interest. He
returned to Jail on 10
th
November, 2009, only after he was traced to a Delhi pub enjoying his
night life with friends, drinks and dance. Media flashed the same in national newspapers.
Meanwhile, his (ill) mother was found attending programs and functions in different parts
of the capital
xxxv
. Investigation further revealed that his grandmother passed away on April,
2008 and he was appealing for parole on that very ground after one year and seven months
of her passing away. Again on November 2011, the High Court granted him five days parole
to attend his brothers wedding, but on the condition that he should not visit any clubs or
discos. Interestingly, the parole was granted despite Sharma violating his earlier parole.
Justice VK Shali, while issuing notice to the Delhi Police on Sharmas application, had
mentioned his conduct while he was on parole pointing out that he visited discotheques in
violation of parole conditions. He need not attend all (wedding functions),Shali had
commented earlier while rejecting his request for parole from 10-20 November. The Delhi
Police, however, did a U-turn on their earlier stand of opposing parole for Sharma. Senior
lawyer Pawan Sharma, appearing for the Delhi Police, did not oppose Sharmas parole plea
but told the court that they had no objection if he gave an undertaking to the court that he
would not leave Karnal and Ambala. In its earlier affidavit submitted to the court last week,
the Delhi Police had objected to Sharmas plea pointing out that his past conduct did not
entitle him to parole.
xxxvi

The day Manu Sharma sauntered out of Delhis Tihar jail on parole, he left behind over a
dozen irate, but helpless prisoners. They too had applied for parole, much before him; their
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 62
reasons were as varied as a marriage in the family, the settlement of a property dispute and
the need to tend to sick family members. However, theres been no word on their
applications
xxxvii
. Reportedly, till September 15, 2009, the Delhi Government had granted
parole to only 11 out of 132 applicants
xxxviii
.
Another case is Bibi Jagirs Kaur. Bibi Jagir was jailed for her role in her daughters
kidnapping. The murder charges against her had been dropped. She was sentenced to 5
years imprisonment. She was granted parole just after 4 months of her imprisonment. It was
reported that preferential treatment had been extended to her as she was the former
Cabinet Minister of Punjab
xxxix
.
The latest case on parole is Bibi Mohanty case. The convict, in the instant case, the son of a
DGP, Orissa, was sentenced for rape of a German national. He was sentenced to seven years
rigorous imprisonment along with fine. In November 2006, he was granted fifteen days
parole to visit his ailing mother. At that moment his father stood as his surety. However,
soon thereafter, he escaped and his father pleaded ignorance about his whereabouts. A
significant period of seven years elapsed, after which on a tip off, the police was able to
arrest him from Kerala in March, 2013
xl
. The convict had, by then, changed his identity, and
refused to reveal himself as Biti Mohanty. His father, seconded him, refusing to accept that
the person arrested was his son. A court has recently ordered the DNA profiling of the
convict to establish his identity.
An audit finding of Comptroller and Auditor General (CAG) also showed how parole
granted to prisoners had not only been abused but in a majority of the cases jailbirds had
made it a favourite escape route. The auditor called for records from Amritsar central jail
and from four Superintendents of Police and found that more than 8,200 prisoners
convicted for serious crimes under NDPS Act, murder, rioting, armed with deadly weapons
etc., and released on parole between May 2001 and May 2008, did not surrender even after
expiry of their parole period
xli
.
Looking at the seriousness of the issue, CAG brought the matter to the notice of the Centre
when it found that late reporting of non-surrender of prisoners by the SPs coupled with
inaction on the part of SPs, SHOs and DMs facilitated the offenders to misuse the facility
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 63
and that it was becoming almost a trend. The police's record of tracking parole jumpers is
also dismal. In Maharashtra, only 310 were re-arrested, in Punjab, 80 and in UP, 14 between
2007 and 2011. "Jumping parole is no big deal. Even those convicted for hard crimes are
easily able to obtain no-objection certificates about their character, and get parole. From
there, it is a short step to not report back to prison," says a senior IPS office
xlii
.
Parole also provides a dangerous opportunity to a criminal to engage in criminal activities
while on parole. As in Saibanna v State of Karnataka
xliii
, the appellant killed his first wife and
was serving his life sentence. He was released for a month on parole during which time he
killed his second wife and child inflicting as many as 21 injuries on the body of the person.
The Supreme Court agreed that the case at hand was a "rarest of rare case" involving pre-
planned brutal murders without provocation and that the only condign punishment was
sentence of death. In yet another case of Krishan v State of Haryana
xliv
punishment of life
imprisonment was awarded where the murder was committed while the accused was
already undergoing life imprisonment and was on parole.

REFUSAL OF PAROLE: EXECUTIVE ARBITRARINESS AND APATHY
While this is the picture on one side, on the other, stands the dismal apathy of the State
Governments to grant parole to prisoners. Release on parole is a wing of the reformative
process and is expected to provide opportunity to the prisoner to transform himself into a
useful citizen. Parole is a grant of partial liberty of lessening of restrictions to a convict
prisoner.
xlv
However, in this country, there are no statutory provisions dealing with the
question of grant of parole. The Code of Criminal Procedure, 1973 does not contain any
provision for grant of parole. By administrative instructions, however, rules have been
framed in various States, regulating the grant of parole. Thus, the action for grant of parole
is generally speaking an administrative action
xlvi
.
Parole Rules or administrative instructions, framed by the Government are purely
administrative in character and for securing release on parole, a convict has, to approach the
Government concerned or the jail authorities. Unfortunately, however, in most cases, the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 64
executive acts in a mere mechanical manner, without application of mind and appreciation
of facts and refuses the chance of parole to the convicts. The police reports are also prepared
without due consideration to ground realities and more often, indicate a threat to law and
order or breach of peace, without substantiating the grounds for such apprehension. Thus,
in Asha Ram v State of Rajasthan
xlvii
, a letter was addressed to the Court by the convict that
he was behind bars for a considerable period and his plea for parole was rejected in view of a
baseless police report. The Court examined the report sent by the Superintendent of Police
and concluded that the same was vague and uncertain. It is well settled that the object for
grant of parole is to make necessary efforts to rehabilitate a convict-prisoner in the main
stream of society. Maintaining of law and order and prevention of breach of peace are the
aspects required to be taken care of by the authorities concerned but on vague and
uncertain suggestions, the petitioner cannot be denied parole when he is otherwise eligible
and entitled therefor. The Court accordingly ordered his release for a period of 20 days
with conditions
xlviii
. In Kesar Singh Guleria v State of Himachal Pradesh and Ors.
xlix
,
referring to the grounds for declining parole the Court proceeded to hold that a mere
disturbance of law and order leading to disorder is not the same as disturbance which
subverts the public order. An apprehended breach of peace or the possibility of the prisoner
committing a crime during the parole period, without anything more, would constitute a
law and order problem and not a problem touching public order. It would thus appear that
"public order" comprehends disorder of lesser gravity than those affecting "security of the
State" and that "law and order" comprehends disorders of lesser gravity than those affecting
"public order". In cases involving problems of law and order, the proper course to be adopted
is not to give an opinion that the request for release be rejected but to advice that the release
be ordered subject to appropriate conditions, such as, that surveillance be kept over the
prisoner during the period of his temporary release and that he asked to report to the
nearest police station at appropriate intervals.
Laying down the criteria for probable refusal of parole, the Delhi High Court specified the
following
l
:
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 65
i) A reasonable apprehension, based upon material available with the Government such
as the circumstances in which the offence is alleged to have been committed by him
and the other cases if any in which he is involved, that the petitioner, if released on bail
may not return back to Jail to undergo the remaining portion of the sentence awarded
to him;
ii) A serious apprehension of breach of law and order or commission of another offence
by the petitioner if he comes out on parole;
iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to
him;
iv) A reasonable possibility of the petitioner trying to intimidate or harm those who
have deposed against him or their relatives.
The Court emphasized that it is neither possible nor desirable to exhaustively lay down
all such grounds as would justify denial of parole in a particular case. Each case has to
be examined by the Government dispassionately and with an open mind, taking into
consideration all relevant facts and circumstances
li
. In no case, a mechanical rejection of
request for release on parole, such as for breach of apprehension of peace, is warranted
by law. The competent authority is required to pass reasoned and speaking order,
whenever it is to decline request for temporary release specifying danger to the security
of the State or of public order and the grounds on which such opinion is held.
HUMAN RIGHTS V. SOCIAL SECURITY
The grant of parole is not a matter of right, but a concession granted to the prisoner. The
grant is regulated by rules laid down in each state and is a part of executive discretion. Such
discretion cannot be exercised arbitrarily or capriciously, without due application of mind. It
is important that the power to release a prisoner is exercised objectively keeping in view the
intention of the legislature and the purpose of the same.
The grant of parole should be based on twin considerations- human rights and social
security. It is important to ensure that the convict is not deprived of his rights as a human
being. The imposition of sentence, in itself, impairs the exercise of basic rights granted
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 66
under the Constitution. The liberties and freedoms remain curtailed during the term of
sentence. But that should not take away the fundamental humane considerations of life
such as attending to family members in need or an opportunity of happy reunion with
family and friends. Long years of incarceration without breaks are more likely to
dehumanize the mental frame, while temporary release may soften the criminal proclivities.
The issue of social security is an equal area of concern where the release should not, in any
way, interfere with the safety of the community or victims. It is important to ensure that the
released convict does not use parole as a means to escape the rigors of law or commit
further offences. A fine balance between the twin considerations have to be achieved and
the State, including the Prison authorities, have a significant role to play in this regard.
Parole decision makers should prepare themselves well before making a decision. They
should know about the crime, how the crime affected the victim and what role the offender
played. They should understand the pattern of criminality that preceded the crime and the
contribution that the offenders social history and lifes choices made to his criminality.
Decision makers should inform themselves of the inmates recent behavior in the institution
and the inmates needs and responsibilities on returning. The grounds on which parole is
sought have to be satisfactorily established and thereupon, the decision of parole has to be
objectively determined. Additionally, they must satisfy themselves, that the grant of parole
should not send a wrong message to the society. The impact of parole on people should be
carefully understood and appreciated.
The grant of parole to a particular convict should be based on considerations such as:
Nature of Offence and circumstances related thereto;
Time spent in prison;
Conduct of the convict;
Previous antecedents, if any;
Possibility of engaging in illegal activities, committing crimes, during the period;
Possibility of seeking vengeance, causing harassment, in specific categories of
crimes;
Impact of release on society;
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 67
The decision of the State to accept or reject parole must be communicated to the convict at
the earliest, along with the reasons for the same. A reasoned decision or speaking order lies
at the root of fair decision-making process. The State should attempt to make more liberal
use of the provision, with variations made, only is sparing cases of threats to security of State
or public order. Even there, as has been earlier reiterated, an endeavor should be made to
release the prisoner with such conditions as would hold him down and compel him to
adhere to good conduct.
The current trend in India of grant to parole to politically influential people or wealthy
groups is indeed disturbing and speaks volumes of the ludicrous manner in which the State
determines cases before it. Inspite of repeated judicial interventions in this regard, the State
has done little to indicate the changes being made in this regard. The State government,
with its known biases and political leanings, have continued to take decisions favorable to
certain categories of people, while refusing innumerable others who may have justified
grounds for seeking such release. Therefore, it is important to emphasize that the State
must take fair, reasonable and unbiased decision for grant of parole and the same should be
clarified in each case
CONCLUSION
The call for freedom and liberty is the highest call of conscience. The concept of parole is in
line with the call of human mind to break free from the shackles of confinement and
establish oneself in the warmth of societal love and acceptance. However it is more easily
said than done. While the philosophy behind parole has been hailed and the judiciary has
called for a liberal use of parole, the subjective satisfaction of the executive in grant of the
same has posed a major roadblock in recent times. Inconsistent orders based on irrelevant
grounds, callous police reports, misuse of the same to appease people in power and position
has devoid the concept of its underlying purpose and utility. Probably, the fault lies, not in
the underlying nobility with which it has been conceived, but in the manner of its usage.
The State has displayed a lack of sound consideration in matters of determination of parole.
It is important to revisit and relook at the existing system of Parole in India and give it some
serious consideration.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 68



i
Is the Parole System being misused in India? How?, The Economic Times, November 21, 2011
http://qna.economictimes.indiatimes.co,m/Law-Regulations/Criminal-Law/is-the-parole-system-being-misused-in-india-
how-503415.htm (Accessed on 18
th
Jan, 2012).
ii
BibiJagirKaur gets four week Parole, The Times of India, Aug.9, 2012 http://articles.timesofindia.indiatimes.com/2012-
08-09/india/33117931_1_kapurthala-jail-s-p-khanna-bibi-jagir-kaur (Accessed on Nov 1, 2012).
iii
The Double Life of BitiMohanty, Tehelka.com, March 21, 2013 http://www.tehelka.com/the-double-life-of-bitti-
mohanty (Accessed on June, 30, 2013).
iv
S. C. Raina, Probation: Philosophy, Law and Practice (Regency Publications New Delhi 1996) at p.6.
v
History of Parole System, http://www.articlesbase.com/history-articles/history-of-the-parole-system-2180457.html
visited on 22nd August, 2012.
vi
Bruce Vichert and Walter Zahnd, Parole: Low and High Risk Parolees, Canadian Journal of Corrections, Vol.7, Issue
,11964-1965, pp.39-48 at p.39.
vii
JaytilakGuha Roy, Prisons and Society: A Study of the Indian Jail System (Gian Publishing House Delhi 1989) p.169.
viii
EILEEN BALDRY, KEY PART OF THE SENTENCE BENEFITS EVERYONE BY, THE SUNDAY MORNING HERALD,
OCTOBER 29, 2009WWW.SMH.COM.AU/NATIONAL/KEY-PART-OF-THE-SENTENCE-BENEFITS-EVERYONE-20091028-
HL1K.HTML (ACCESSED ON 13
TH
JAN, 2012).
ix
J. C. Chaturvedi, Penology and Correctional Administration (Isha Books New Delhi 2006) p.8.
x
Comment, The Parole System, University of Pennyslyvania Law Review Vol.120, 1971, pp.282-377, at p. 286.
xi
Daniel S. Medwed, The Innocent Prisoners Dilemma: Consequences of Failing to Admit Guilt at Parole Hearing, Iowa
Law Review, Vol.93, Issue 2, 2008, pp. 491-557 at p. 493.
xii
John J. Morrissey v. Lou. V. Brewer, 443 F.2d 942(1971).
xiii
United States v. Wilson, 32 U.S. 150 (U.S. 1833).
xiv
A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It
may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court
to force it on him. Because he has accepted the parole terms, whatever rights they cut off, the parolee is stopped from
complaining about those terms.
xv
Comment, The Parole System, University of Pennysylvania Law Review Vol.120, 1971, pp.282-377, at p.288.
xvi
Id.
xvii
Menechino v. Oswald, 430 F.2d 403, 407 (2d Cir. 1970).
xviii
387 U.S. 1 (1967).
xix
For example, West Bengal Correctional Services Act, 1992; The Prisoner (Bihar Amendment ) Act 1956 and the Bihar
Parole Rues 1973; The Punjab Good Conduct Prisoners (Temporary Release) Act, 1962; The Haryana Good Conduct
Prisoners (Temporary Release) Act, 1988 etc.
xx
In some States, it extends to five days.
xxi
Parole/Furlough Guidelines, Government of National Capital Territory of Delhi, Home Department, 2010.
xxii
ibid.
xxiii
See, Sushant Kulkarni, 57 jumped parole from Yerawada in 10 years, The Indian Express, Oct,25, 2011,
http://www.indianexpress.com/news/57-jumped-parole-from-yerawada-in-10-years/865028 (Accessed on 24th August,
2012).
xxiv
Krishan Lal v. State of Delhi AIR1976SC1139
xxv
State of Haryana &Ors. v. Mohinder Singh MANU/SC/0073/2000
xxvi
Sunil Fulchand Shah v. Union of India &Ors. MANU/SC/0109/2000; Joginder Singh v. State o Punjab
2001(6)SCALE280
xxvii
1978CriLJ651
xxviii
Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra PradeshAIR1978SC429
xxix
AIR1975SC606
xxx
(1978) 4 SCC 161
xxxi
AIR 1980 SC 2147
xxxii
AIR2007SC 3221
xxxiii
ibid.
xxxiv
AIR 2010 SC 2352
xxxv
Jessica Lall Murder Case: Manu Sharma granted Parole, The Times of India (New Delhi), Nov. 16, 2011
http://articles.timesofindia.indiatimes.com/2011-11-16/india/30405164_1_30-day-parole-manu-sharma-parole-
application (Accessed on Nov.13, 2012).In September 2009, Sharma was released from jail on a 30-day parole to
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 69

attend to his ailing mother and perform rituals related to the death of his grandmother. During the second extension of
the parole for another 30 days, Sharma was seen partying in a discotheque. His mother, whose illness was one of the
reasons for seeking the parole, was seen at a media briefing promoting a cricket tournament at Piccadilly - the family-
run hotel in Chandigarh.
xxxvi
Manu Sharma gets 5 day Parole despite Violations, Tehelka, 16 Nov. 2011
http://www.tehelka.com/story_main50.asp?filename=Ws161111JESSICA_MURDER.asp (Accessed on 20
th
Nov 2012).
xxxvii
Parole And Prejudice, Tehelka Magazine, Vol.6, Issue.47, November 28, 2009
http://www.tehelka.com/story_main43.asp?filename=Ne281109parole_and.asp (Accessed on 14
th
Jan, 2012)

xxxviii
Amend Laws to prevent parole misuse, Hardnews, http://www.hardnewsmedia.com/2009/11/3347(Accessed on 19
th

Jan,2012).
xxxix
After four months in jail, former Punjab minister JagirKaur given parole, NDTV, August 08, 2012
http://www.ndtv.com/article/india/after-four-months-in-jail-former-punjab-minister-jagir-kaur-given-parole-252765
(Accessed on 20
th
Nov 2012).
xl
Explained:All the crucial facts of the Bitti Mohanty case, Firstpost.India, Mar 10, 2013,
http://www.firstpost.com/india/explained-all-the-crucial-facts-of-the-bitti-mohanty-case-654149.html (Accessed on 2nd
August, 2013).
xli
Pradeep Thakur, 60% convicts dont return after parole, TNN, November 13, 2009,
http://articles.timesofindia.indiatimes.com/2009-11-13/india/28082072_1_cag-parole-absconding-prisoners (Accessed on
22
nd
Jan, 2012).
xlii
Maharashtra tops Parole jumpers List, The Times of India, June 5, 2012
http://articles.timesofindia.indiatimes.com/2012-06-05/india/32054766_1_parole-rules-parole-jumpers-ips-officer
(Accessed on 1st Nov., 2012).
xliii
JT 2005(5)SC564
xliv
1997 CriLJ 3180; See, Mohinder Singh v. State of Punjab 2012 CrLJ 1559.
xlv
Poonam Lata v. M.L. Wadhawan 1987 Cri LJ 1924.
xlvi
Sunil Fulchand Shah v. Union of India &Ors.AIR 2000 SC 1023.
xlvii
MANU/RH/0221/2012
xlviii
Roduv. State of Rajasthan MANU/RH/0198/ 2012; Gulab v. State of NCT of Delhi MANU/DE/0638/2010
xlix
1985 Cri.L.J 1202
l
Somesh Gupta v. State of NCT 2010 (1) Crimes 864.
li
See, Varun v. State of Haryana MANU/PH/0765/2010.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 70
DEVELOPING SPACE LAW EDUCATION IN INDIA:
SOME PROPOSALS
MALAY ADHIKARI
INTRODUCTION
As India is a developing country and its space science and technology is not so developed
before the decades of sixties, so unlike other space faring countries, the different disciplines
related with outer space like space law has started its journey very informally and still it is
going on in the absence of national space law. The activities to promote space law education
is going on but not like other space faring countries though India herself is a space faring
country now.
The first part of the paper is focussed about the classification of people and the Indian
institutions or organisations who are interested about space law. The second part is the
proposed alternative models to develop space law education based on the purpose of
different people or community and last there is a general proposed syllabus of space law for
all these models.
WHO ARE THE PEOPLE INTERESTED ON SPACE LAW IN INDIA?
The first question comes to anybodys mind who are the people interested on space law in
India. The reply may be made on putting another question how space law is related or
important to an astronomer, an engineer, a legal professional, a doctor, a social scientist, a
Government official or diplomat, a defence personnel, a businessman or an entrepreneur
and some non-profit making society or groups related with space activities. Perhaps these
are the people who may think about how space law education is required for satisfying the
need of their respective domain. In a general way, the astronomers in the space observatory
or any other institutions are more interested on astronomical observations and
developments; engineers are interested more on manufacturing spacecrafts, electronic
circuit designing of a spacecraft and other related things; a legal professional more
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 71
interested on litigation through space activities; doctors more on space medicine; social
scientists interested more on writing and deliberating on space law; defence personnel more
on space security; Government officials more interested to focus on space policy related
issues in its own framework; diplomats more on building international tie-ups with other
countries and safeguarding or enforcing the national interest in international plane;
businessmen or entrepreneurs more on space commerce; the societies or other groups
related with space activities more interested about creating social consciousness focussing
on their society or group interest. The list is not inclusive. There may be possibility of other
sets of people.
The interest of the above category of people is very vital to develop any model on space law
education in India. Similarly the institutions related with all these categories like Space
Physics Laboratory (Thiruvananthapuram) under Vikram Sarabhai Space Centre
1
, The Inter-
University Centre for Astronomy & Astrophysics
2
(Pune), Institute of Astrophysics
3

(Bangalore), Raman Research Institute
4
(Bangalore), Aerospace engineering departments
(IITs/Engineering colleges or Universities), Indian Institute of Space Science & Technology
5

(Thiruvananthapuram), Indian Institute of Remote Sensing
6
(Dehradun), Institute of
Aerospace Medicine
7
(Bangalore), some law departments of universities including national
law schools all over India, Institute of Defence Studies & Analysis
8
(New Delhi), Observer
Research Foundation
9
(New Delhi), Centre for Land & Warfare Studies
10
(New Delhi),
Gateway House
11
(Mumbai), National Institute of Advanced Studies
12
(Bangalore), Defence
Research & Development Organisation
13
(laboratories like Defence Bioengineering &
Electromedical Laboratory etc), Indian Astrobiology Research Centre
14
(Mumbai), Indian
Air Force
15
, Indian Space Research Organisation
16
(Bangalore), Ministry of External Affairs
17

(Legal & Treaties Division), Indian Council of World Affairs
18
(New Delhi), Confederation of
Indian Industries
19
(CII), Society of Indian Aerospace Technologies & Industries
20

(Bangalore), Association of Geospatial Industry
21
(New Delhi), Indian Society of
International Law
22
(New Delhi), Indian Society of Remote Sensing
23
(Dehradun), Indian
Society of Geomatics
24
, Indian National Cartographic Association
25
(Hyderabad), Indian
Society of Aerospace Medicine
26
(New Delhi), National Space Society (India Chapter)
27
,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 72
Telemedicine Society of India
28
(Lucknow), The Indian Planetary Society
29
(Mumbai), Moon
Society India
30
(Mumbai), the Bangalore Astronomical Society
31
, Regional Sky Watchers
Association like Kolkata
32
, Kalpana Chawla Centre for Space & Nanosciences
33
(Kolkata),
Astronomical Society of India
34
(Bangalore) and its sister concern Astronautical Society of
India Student Chapter.
The list may be going on adding one institution after another. But definitely all these
institutions have not much interested or requirement of space law education. Some requires
more, some less. And it is obvious not only for India but also for similar type of institutions
in other countries. It depends on their activity as well as priority of interest. But most
interesting is that none can assure that space law is not in any way related with their
discipline. People are in general more conscious and aware (may be interested) of space
science and technology than space law. There are people amongst space scientists etc in
India, who are still not so familiar about the fact that there exists law related with outer
space. But some thoughts are enlightening in their minds by default for law even though
they have no such legal background. Generally when people faces trouble after violating
any regulation being knowingly or unknowingly, then law comes to their mind because the
person has to safeguard himself from the offence. This is the general Indian tradition.
There is one interesting point to observe from the above list is that Bar Council of India
35
or
its members in general are not interested about space law education till now. The same
follow up is noted amongst the Indian judiciary from top to bottom. The primary reason is
that there are no such litigations till now by which a major number of legal practitioners
will be interested. The same is true for judiciary. But there are many opportunities in the
background of litigations from licensing of telecommunication spectrums by Government
of India, ANTRIX-Devas deal etc.
In this broad background scenario, there are some proposed models to develop space law
education in India.
PROPOSED MODELS OF SPACE LAW EDUCATION IN INDIA:
(1) Model for people related with Astronomy
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 73
International lawyers have little or no knowledge of or interest in astronomy,
and astronomers, astro-physicists are likely that.
7
The statement of noted jurist Prof.
Jenks is very meaningful especially in Indian context. The history of Indian
astronomy shows that Indian astronomers contributed a lot and it was very
pioneering work to other astronomers outside India. The following paragraph
highlights it.
Earlier in the fifth century, Aryabhatta through classic work, the Aryabhatta,
heralded the new mathematics based astronomy. In 7
th
century AD Brahmagupta
also wrote a voluminous work called the Brahmasphuta Siddhanta, which is one of
the important texts on Indian mathematics and astronomy. The Indian astronomers
dealt with time-reckoning, rising, setting an conjunction of planets, eclipses and
parallax, mean and true motion of planets, determination of direction, space and
time etc. They have developed several astronomical instruments and made
observations. Nilkantha (16
th
century), astronomer from Kerala, conceived that the
inner planets (Venus and Mercury) and the outer planets (Mars, Jupiter and Saturn)
would revolve round the Sun and the latter with them would in turn evolve round
the earth. Such a model appeared nearly a century later in Europe, where Tycho
Brahe through his observations at Copenhagen formulated it.
8

The background of Indian astronomy is discussed in this context because the
astronomers are the key people who have started human expedition to outer space.
The example is if there is no discovery of Keplers laws of planetary motion
9
, the
people from earth cannot launch a satellite like Sputnik to outer space. Excellent
researches are going on in different Indian institutes mentioned above. But the
discussion of these researches is out of context of this paper. All these researches will
definitely expand the scope of future space law. The example may be cited like the
discovery of a planet full of precious metals like diamonds
10
or planning to mining of
asteriods
11
etc where the astronomers first located the particular celestial body and
the contents of these planets or asteroids. Naturally the people will chase for
acquiring these and there will definitely be a new type of space race which will direct
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 74
space law in new direction.
12
There may be new conventions, agreements etc to
regulate the regime.
Hence the astronomers cannot fully avoid their role for future development of space
law. Depending on their information, a state or a private enterprise will invest their
huge fund for the reason as cited above. It may be said that the existing regime of
space law as established by United Nations is not attracted by astronomers at present
but there are lots of opportunities in future to develop space law by astronomers.
At this outset, what will be the model for Indian astronomers to study and research in
space law? What type of space law education is required for them? What can they
contribute to the existing regime of space law? The purpose of this paper is not to
prepare a model only but to raise some questions to the astronomy community of
India to consider space law as a serious concern for near future. And it is definite that
some concrete innovative idea will come out just like their astronomical discoveries.
These ideas should be get together to prepare a model for space law education as
suitable for them.
(2) Model for People Related with Engineering:
The role of engineers to develop any space mission or project is in the first place. If
any ISRO project is considered, there are engineers from different disciplines like
aerospace engineering consisting of aerodynamics and flight mechanics, thermal and
propulsion, design and structure, materials and manufacturing; avionics engineering
consisting of Digital System Design, Digital communication, VLSI
Design Navigation, Guidance and Control, Digital System Design, Computer
Technology and Power Electronics etc. There are disciplines related with general
engineering like mechanical engineering, electrical engineering etc. The engineers
are the people who control a space mission everywhere. Even a person cannot be an
astronaut without any knowledge of engineering and science. Similarly a future
space lawyer is sometime expected to be in outer space. So a legal professional
should be acquainted with some knowledge of engineering. The development of the
space law requires lawyers, engineers and scientists that working together like an
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 75
engine of such development.
13
As noted space lawyer Eilene Galloway has
recognized, all major space law problems in both international and municipal space
law are multidisciplinary and require for their solution a knowledge of space science
and technology as well as elements of the physical sciences, the life sciences and
engineering. This principle is valid for the study and teaching of space law.
14

An example is provided for the requirement of space law to engineering related
projects. A small case study identifies a lack of a clear law about the experimentation
with sounding rocket in Spain. These problems are caused mainly by the absence of
specific space law, which regulates the operation of sounding rocket as experimental
devices.
15
The problem is not different in India. If a person or a group is interested to
pursue such project, there are problems like purchase of materials, transport of the
rockets, and management of a risk insurance which would cover the damage and
responsibilities of a potential accident, lack of support of the local authorities, socially
confused vision which relates sounding rockets to military activities
16
.
Hence a platform should be developed where the persons from engineering
background discuss their practical problem with the people from legal background
and then only it would be possible to prepare a model for space law education for
engineers.

(3) Model for People Related with Medical Sciences:
The doctors, researchers and others who are related with the development of space
medicine are in the different corner of space law. At the one side they are developing
the medical support for human beings in outer space but they are the people who
have key role to develop one dormant side of space law which is space medical
jurisprudence or forensic medicine in outer space. It is obvious that when the
commercial travel of human being will start, then definitely space medical
jurisprudence will play a key role. And a new literature will develop from the
contribution of the above doctors, researchers and others working on space medicine.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 76
There is Indian Society of Space Medicine which is mainly controlled by the defence
personnel but the time has come to dissipate the knowledge of space medicine to the
interested civilians. It should no longer be a domain controlled by the defence people
only. The role of this society is very important to build a model for space medical
jurisprudence in Indian context. Such model may be useful for making future Indian
regulation for human space flight. Hence it is better for this society as well as others
interested persons in space medicine to think what space law education is needed to
them. A suitable model should be drafted based on their output.
There is another possibility from space nursing society
17
which was founded in 1991
in USA and though they have members from different countries but nobody from
India. India also think about this line and there should be some diagnostic code for
nursing also which will support in making the future regulation for Indians injured
in outer space.

(4) Model for People Related with Social Sciences:
The people from social sciences can contribute to the geopolitics in space in general.
It consists of space strategy of India in making a suitable space policy for the country.
They can analyse the politics of outer space affairs inside and outside the country.
Their analysis and suggestion will require for making domestic legislation in space
for India.
But there is specific contribution from archaeologists also. An example of legal
implication of space archaeology is that whether any law is required to preserve the
site on the moon where the Moon Impact Probe was thrown during the Chandrayaan
Mission, or, whether the existing domestic law is sufficient to preserve the particular
site on any celestial body. In future expedition of Mars and other mission, the nexus
between space archaeology and law will be very much required to be studied
otherwise human colony on celestial bodies will face problems.
So the model for space law education should be based on general as well as specific
need of the social scientists.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 77

(5) Model for Defence Personnel:
The defence people are mainly dealing with space security of India. The Indian Air
Force is already there. But there are people in DRDO laboratories who build up the
long range missile whose technology is same as launching a spacecraft. The recent
AGNI V launching has worried the other countries from the aspect of space security.
The existing domain of space law should be in the background to develop space law
education for them. But what will be the added one? All the domestic law dealing
with national security of India should be included in their model for space law
education.

(6) Model for a Government Official or a Diplomat:
A Government official or a diplomat has no such border aspect for pursuing space
law education because it is the policy of the Government who decides the role of
space law education for them. For an example a top-ranking ISRO official cannot
expect to have a detail study of space law which is not permitted by the concerned
office. It is the Government propaganda by which the officer dealing with space has
to go. The diplomats in Indian Ministry dealing with space are likely that. They have
to follow the guidelines from their superiors or as directed by the Ministry
concerned. Hence the question is what model they will follow for space law
education? It is better to leave the solution to the concerned Ministry for the time
being.

(7) Model for a Businessman or Entrepreneur:
A businessman or entrepreneur is chasing for money and his or her survival exists on
the profit from the business. If the cases of Godrej Aerospace Laboratory or the space
sector of L& T or the first Indian space entrepreneur Dr. Susmita Mohanty, CEO of
Earth2orbit
18
, are considered, their main focus is space commerce. As stated by Dr.
Mohanty that she would like to see India a global player and capture a significant
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 78
chunk of the 160 billion dollar annual commercial business.
19
The model for space
law education is not only the existing space law provisions but also the other Indian
acts to continue their business. Also they will require studying other disciplines
together with the study of space law to make their business credible to the public.

(8) Model for Asrobiologist or Exobiologist:
The astrobiology or exobiology consists of the search for extra-terrestrial life in this
universe. This search for extra-terrestrial intelligence directs space law to think non-
anthropocentric space law and the concept of metalaw, as per famous space lawyer
and rocketry scientist Andrew G. Halley, comes into the picture.
20
In the distant
future, lawyers, scientists and sociologists will undertake studies of a substantive
statement of metalaw and as a by-product of these studies our own anthropocentric
law undoubtedly will be improved.
21
Hence the model for space law education for
this category is based on non-anthropocentric nature of space law and the literature is
developing through the institutes like the Search for Extra-terrestrial Intelligence
(SETI) etc. There is no codified law in this category till now. So the people working in
this area in India have the sole responsibility to think what space law education is
required and the model should be based on it.
(9) Model for Different Societies and Groups:
The different non-profit making societies or groups mentioned above have different
purposes. They sometimes think for space law for the interest of the people in their
society. Sometime it is the case where the requirement of space law study is strongly
needed but there is lack of consciousness or lack of people who can spread interest
for space law amongst the other members of the society. So the study of space law is
different from different society. There may be numerous space law education models
in this category.
(10) Model for Future Generation Living on Celestial Bodies:
This model will be heard to be a science fiction story. But one day or other human
beings will have permanent colony in celestial bodies. They must require some law
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 79
which will be part of existing space law but other part will be developed from the
customs which they will follow in these celestial colonies. Here the survival of
human beings is the sole criteria and as the environment of each celestial body is
different from each other, the law will be different. Even we require law within a
spacecraft for interstellar flight because it takes a very longer time to travel from one
to another planet. Hence it is very good and wise if some model of space law
education could be developed for our future generation. After all Haley, one of the
pioneers of space law says Law must precede man into outer space. So it is the best
time to think what space law is required to live in Moon, Mars and beyond being an
Indian or in a greater context being an earthian.
All these models of space law education above are not all inclusive. There may be
interference between the two or more when it will be actually implemented. But
there are basics which each model should follow and there should be regular review
and upgradation procedure in each model.

GENERAL SYLLABUS:
The following is a proposed format of general syllabus of these models but there
should be many more topics depending on the prerogative of the institutions or a
particular community or a particular society as well as it depends on the
advancement of space science and technology with more consciousness of general
people on space activities.
1. Introduction to Law
1.1 What is law?
1.2 Sources of law
1.3 Different schools of law
1.4 Relationship between law & other disciplines especially science &
technology
2. Introduction to law of outer space
2.1 Brief history of Astronomy
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 80
2.2 Relationship of space law with other disciplines of studies with space
2.3 Sources of space law: General Assembly resolutions, treaties etc
2.4 Space Lawyers of different countries & their contributions
2.5 Role of United Nations and other regional and intergovernmental
organisations
2.6 Role of non-state actors
3. Problems of space law
3.1 Boundary of outer space
3.2 Freedom of access, use and principle of non-appropriation, Common
Heritage of Mankind
3.3 Peaceful uses & Military Uses
3.4 Space Debris
3.5 International space station
3.6 Space transport
4. Commercialisation & Privatisation of space activities
4.1 Private companies in India & abroad
4.2 Space economics: how economy of India/abroad affected
4.3 Legal issues related with commercialisation & privatisation
4.4 Probable domestic regulations related with space activities
5. Remote Sensing
5.1 Definition, technique and uses of remote sensing
5.2 Legal issues with remote sensing data
6. Telecommunications
6.1 Role of ITU & others legal regulations
6.2 Regulation of radio frequencies and orbital slots on the geostationary orbit
6.3 Case study of INTELSAT & INMARSAT
6.4 Privatization of telecommunication services: legal problems in India
7. Other commercial legal issues
7.1 Intellectual property rights
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 81
7.2 Private launching
7.3 Import & Export controls
7.4 UNIDROIT role
7.5 Mining of celestial bodies
7.6 Space tourism
7.7 Human colonisation
8. Dispute Resolution for outer space activities
CONCLUSION:
There are many agendas to be included or may be excluded from space law education in
due course of time as space science and technology is gradually developing. But one
attitude is distinctly lacking in India that a common national platform to deal the different
aspects of space activities including space law like International Astronautical Congress
held annually by the International Astronautical Federation. Here the people from different
disciplines related with outer space would like to participate, interact and share their own
ideas through meaningful conversations with humble approach. It may be a national
symposium like National Space Science Symposium as now conducted by ISRO in each
alternate year. This is the only way to develop a common Indian model of space law
education for different disciplines.

Referencess
1. http://www.isro.org/isrocentres/vssc.aspx (Accessed on 25-05-2013)
2. http://www.iucaa.ernet.in/ (Accessed on 25-05-2013)
3. http://www.iiap.res.in/ (Accessed on 25-05-2013)
4. http://dspace.rri.res.in/ (Accessed on 25-05-2013)
5. http://www.iist.ac.in/ (Accessed on 25-05-2013)
6. http://www.iirs.gov.in/ (Accessed on 25-05-2013)
7. http://www.isam.in/iam.html (Accessed on 26-05-2013)
8. http://www.idsa.in/ (Accessed on 26-05-2013)
9. http://www.observerindia.com/ (Accessed on 26-05-2013)
10. http://www.claws.in/ (Accessed on 26-05-2013)
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 82
11. http://www.gatewayhouse.in/tags/mumbai (Accessed on 26-05-2013)
12. http://www.nias.res.in/ (Accessed on 26-05-2013)
13. http://www.drdo.gov.in (Accessed on 26-05-2013)
14. http://www.iarc.res.in/index.html (Accessed on 26-05-2013)
15. http://indianairforce.nic.in/show_page.php?pg_id=94 (Accessed on 26-05-2013)
16. http://www.isro.org/ (Accessed on 26-05-2013)
17. http://meaindia.nic.in/ (Accessed on 26-05-2013)
18. http://www.icwa.in/index.html (Accessed on 26-05-2013)
19. http://www.icwa.in/index.html (Accessed on 26-05-2013)
20. http://www.siati.in/ (Accessed on 26-05-2013)
21. http://www.agiindia.com/ (Accessed on 26-05-2013)
22. http://www.isil-aca.org/ (Accessed on 26-05-2013)
23. http://www.isrsindia.in/ (Accessed on 26-05-2013)
24. http://www.isgindia.org/ (Accessed on 26-05-2013)
25. http://www.incaindia.org/ (Accessed on 26-05-2013)
26. Supra note 7.
27. http://chapters.nss.org/a/lists/International/ChapList_IN.shtml (Accessed on 26-05-2013)
28. http://www.tsi.org.in/ (Accessed on 26-05-2013)
29. http://www.ipsindia.org/ (Accessed on 26-05-2013)
30. http://www.moonsociety.org/india/ (Accessed on 26-05-2013)
31. http://www.bas.org.in/Home/ (Accessed on 26-05-2013)
32. http://www.swakolkata.org/ (Accessed on 26-05-2013)
33. http://kccsns.netfirms.com (Accessed on 26-05-2013)
34. http://www.asindia.org/ (Accessed on 26-05-2013)
35. http://www.barcouncilofindia.org/ (Accessed on 26-05-2013)
36. Jenks, C. Wilfred (1978), The Common Law of Mankind, London: Steven & Sons Limited.
37. Subbarayappa, B. V. (2007), An Overview in B. V. Subbarayappa (ed.) Science in India Past & Present,
Mumbai: Popular Prakashan.
38. http://csep10.phys.utk.edu/astr161/lect/history/kepler.html (Accessed on 30-05-2013)
39. http://www.reuters.com/article/2011/08/25/us-planet-diamond-idUSTRE77O69A20110825 (Accessed on
30-05-2013)
40. http://www.bloomberg.com/news/2012-04-24/google-chiefs-back-startup-mining-asteroids-for-
metals.html (Accessed on 30-05-2013)
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 83
Google Inc. (GOOG) Chief Executive Officer Larry Page and Chairman Eric Schmidt are among the
backers of a venture to mine asteroids for trillions of dollars of precious metals, as Earths resources
become strained.
Planetary Resources Inc., based in Seattle, aims to launch a telescopic space surveyor into Earths low
orbit in less than two years to identify potential metal- and water-rich asteroids and begin prospecting
within four years, co-founder Eric Anderson, 37, said in a telephone interview.
41. Ibid.
42. Monzon, Amalio & Russu, Andres (2010), Space Law Students Participation in Real Engineering
Related Projects and Research in Corinne M. Contant Jorgenson (ed.) Proceedings of the 51
st

Colloquium of Outer Space, Washington: American Institute of Aeronautics & Astronautics.
43. Guyla, Gal (1992), Study & Teaching of Space Law in N. Jasentuliyana (ed.) Space Law Development
& Scope, Westport: Prager.
44. Supra n 7.
45. Ibid.
46. http://www.spacenursingsociety.net/ (Accessed on 30-05-2013)
47. http://www.earth2orbit.com/ (Accessed on 30-05-2013)
48. Ibid
49. Haley, Andrew G. (1963), Space Law & Government, New York: Appleton-Century-Crofts.
50. Ibid


Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 84
A STUDY ON LAW RELATING TO
GROUNDWATER RECHARGE IN INDIA*
P. SAKTHIVEL
S. AMIRTHALINGAM
M. STARKL
INTRODUCTION
Groundwater is the most extracted resource on the earth
i
. The groundwater depletion and
pollution has initiated political and legal controversies in recent times
ii
. The past ten years
have witnessed the discussions on various options to overcome the difficulties posed by
groundwater depletion. The artificial recharge methods and rainwater harvesting are the
ideas usually found in these discussions. This paper addresses the law and policy issues
relating to groundwater recharge, but it has used a term (Managed Aquifer Recharge)
which is not often used in the legal discussions. Managed Aquifer Recharge (MAR), is
emerging as a holistic approach to various groundwater recharge philosophies and the
paper explains the rational for choosing this term.
The gap between the policy and law started widening ever since the legislation relating to
environmental protection is made in India. The depletion of groundwater, the state
expenditure relating to drinking water supply, climate change issues
iii
, groundwater
extraction by electric power, and mechanism to extract water from deep bore wells has
initiated policy and law making initiatives. These initiatives include various groundwater
recharge policies, programmes and laws. The paper surveys and identifies the gaps in law
and policy relating to groundwater recharge as they seem to be not harmonious.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 85
MANAGED AQUIFER RECHARGE: AN APPROACH FOR FUTURE
Any discussion on groundwater governance, policy and law includes a deliberation on the
groundwater recharge. The terms used to denote groundwater recharge processes includes
artificial and natural recharge, aquifer recharge and rainwater harvesting. This term is
widely used in water polices and official papers
iv
of the state in recent times. A brief
introduction to MAR will explain the reasons for preferring this term in this paper.
MAR describes intentional storage and treatment of water in aquifers, this term is preferred
over artificial recharge as the later creates an adverse connotation of artificial in a society
where community participation in water resources management is becoming more
prevalent
v
. MAR includes a management proposal for all intentional and incidental
recharge to groundwater, thereby proposing to regulate all sorts of groundwater recharge
programmes under one umbrella concept. MAR has also been called as enhanced or
augmented recharge, water banking and sustained underground storage. The common
reasons to use MAR includes securing and enhancing water supplies, improving
groundwater quality, preventing salt water from intruding into coastal aquifers, reducing
evaporation of stored water, maintaining environmental flows and groundwater
vi
.
CONSTITUTIONAL BASICS FOR MAR
From central government to NGOs, largest polluting corporate to farmers relying on
subsistence agriculture
vii
, groundwater sustainability is considered as an important aspect in
their work plan. This requires a Constitutional understanding on MAR in India to explain
the rights of all stake holders including policy and law making powers, institutional
structure and jurisdictional conflicts amongst various authorities.
Water, primarily a State subject
viii
under the Constitution of India was not considered as a
significant subject to be regulated at the time of making the Constitution. This is reflected
by the fact that groundwater was not in the discussions of constituent assembly. Further,
the Constituent assembly discussions relating to the most important subject of inter-state
water disputes were also not very significant. At the time of independence, the water scarcity
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 86
is not felt to this extend and the technology was not developed to transport and store water.
Naturally, groundwater was one of the underutilized resources at the time of independence.
Now it is one of the most extracted natural resource on the earth. At the time of providing a
constitutional mechanism for Panchayat Raj institutions, these facts were considered and
provisions relating to the management of groundwater and recharge were made implicitly
ix
.
The fundamental right to water and its manifestations have attained significant
developments in recent times
x
. The recognition has come from both international and
national understanding on the requirement of a right based approach for water
entitlements
xi
. The right to water extends to drinking water, environmental dimensions and
other aspects including groundwater
xii
. One could bring an argument linking the
fundamental right to water and the obligation to protect water resources, concluding a
positive duty on the state to protect groundwater resources by taking appropriate measures
including MAR.
The utilization and management of material resources of the State are best guided by the
Directive Principles of State Policy (DPSP). It is to be made clear that groundwater is a
material resource
xiii
and the State is expected to secure the ownership and control of these
resources to distribute for serving the common good
xiv
. Further, it is the obligation of the
State to protect and improve the environment and to safeguard the forests and wild life of
the country
xv
. This may be inferred to protect the water bodies in general and groundwater
resources in particular. On the other hand a duty is imposed on the individuals to protect
the environment and natural resources of the country
xvi
.
NATIONAL AND STATE WATER POLICIES
The recent version of the National Water Policy and its adoption is an example of the
politics and controversies surrounded by water. The Union attempting to usurp the powers
of the States and the States were opposed to the idea of uniformity of any kind emanating
from Union mandate. The Union on the other hand did not make any sincere attempt to
fulfill the constitutional obligation entrusted with the parliament to resolve inter-state water
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 87
disputes as well as managing inter-state rivers. The inability to manage inter-state waters
not only reflects the unwilling Union, but provides an opportunity to speculate on the
intention of the Union to take larger regulatory role over water resources. The Unions
intention to regulate water in general and groundwater in particular, emerges from various
constraints including financial dimensions of Union sponsored projects and the projects
funded by international agencies as they reach the states with conditionality. The role of
Supreme Court is significant regarding two aspects connected to groundwater. Firstly, the
Supreme Court is liberal in its approach to declare right to water as a fundamental.
Secondly, the groundwater depletion and pollution are increasingly receiving the attention
of court. This has compelled the Union to revise the Water Policy. The newly adopted water
policy was not welcomed by all States and one cannot be sure of realizing this policy as it
may not be supported by the existing legal regime. Therefore, the water policy proposes a
framework water law which will be adopted by States under Article 252 of Indian
Constitution.
The proposed water framework law will be an umbrella statement of general principles of
law guiding all the State agencies in their water related agenda
xvii
. The groundwater to be
treated as a community resource held by the state under public trust doctrine, and the
existing groundwater laws to be modified
xviii
. Though the Supreme Court has held that
groundwater to be governed by public trust doctrine, the groundwater legislation which is
to be discussed later in this paper, did not consider groundwater as public trust, but consider
groundwater as a state controlled resource. Even these legislation are not enforced properly
anywhere, for instance, the Tamil Nadu Groundwater Act of 2003 is yet to be notified in
spite of High Court directions
xix
.
The policy recognizes the declining groundwater levels in over-exploited areas and
addresses the technological measures to arrest such a trend. Artificial recharge programmes
are to be placed to ensure the extraction-recharge balance of groundwater. The policy
reiterates the need for aquifers to maintain the base flows to surface system and maintain
ecology
xx
, it recognizes the importance of groundwater in the interstate dispute settlement,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 88
and it declares the importance of aquifer mapping and the need to update the maps in
future. The policy addresses several quality and quality orientated issues relating to
groundwater, recycle and reuse of water, groundwater depletion due to various projects and
the need and impact of small water harvesting structures
xxi
.
Considering water as a state subject, the federal units should have come with water policies
consistently. But we find that only few states have got their water policy, these policies also
reflect the National Water Polices with few changes. For instance, the Orissa Water Policy
calls for groundwater recharge programmes by roof top method and watershed
programmes. It lays down a water utilization priority
xxii
. The Tamil Nadu Water Policy, 1994
emphasis the importance of groundwater protection and enhancement of water information
infrastructure. Thus an effective governance system is missing from the States perspective;
this encourages the Union to take liberty in making laws to govern various aspects of
groundwater. If States have come up with a groundwater authority by their legislation,
Supreme Court might not have ordered to constitute an authority through a legislation
which was enacted to give effect for international obligations
xxiii
. (What was the international
obligation to create central groundwater authority?)
MODEL LAWS
Union has continuously evolved model groundwater laws for the past two decades for the
adoption of States; number of States also enacted groundwater laws having these drafts as
models. But the benefits out of these model laws or the implementation of the groundwater
legislation are matter of great concern
xxiv
. It has not benefited the poor public in dealing
with groundwater depletion
xxv
. The Madras High court refused to intervene the states
scheme to provide drinking water to Chennai city while ignoring the groundwater related
rights of farmers
xxvi
. The court decision would have been different if the State groundwater
legislation has been brought into force
xxvii
. Similarly, Plachimada groundwater pollution
might have been resolved properly if the State groundwater law is properly enforced
xxviii
.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 89
The model bills are in the making, the process continues with the Draft Water Framework
Law released by the government of India. The proposed law claims to bring more economic
value to the water by linking groundwater with electricity tariff, it further dwells into
various groundwater recharge programmes and schemes
xxix
. It is relevant to look at the
portion of the draft relating to the groundwater recharge,
(6)The appropriate Government shall demarcate groundwater recharge
zones by identifying critical natural recharge areas of an aquifer and those
areas that require special attention with regard to the recharge of groundwater
and including areas that are affected by contaminants and saline Water
ingress.

(7)The groundwater recharge zones shall be accorded the highest priority in
terms of groundwater protection and regulation and the appropriate
government shall take all possible measures to conserve and protect such
groundwater recharge zones.

The electricity-groundwater nexus is a difficult one to be compromised in many States
where electricity for agriculture is free or highly subsidized. The importance given to the
economic value of groundwater may be subjected to criticism
xxx
.

UNION LEGISLATION

The Easement Act, 1882 provides an absolute right of groundwater for the owner of the
land, this illustration forms the basis for absolute ownership theory quoted often from an
illustration to explain the exclusive rights of an owner
xxxi
,
The right of every owner of land to collect and dispose within his own limits
of all water under the land which does not pass in a defined channel and all
water on its surface which does not pass in a defined channel.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 90

In M/s Nila Sea Foods Private Limited,
xxxii
Justice K. Venaktaraman has observed that the
land owners have the right to draw the water from their land and absolutely there is no
prohibition for tapping water even by an enactment of law by the appropriate government.
A similar view has been expressed by the High court in Era Soundara Pandian -Vs- Mrs.
Lakshmi
xxxiii
, the respondent used to take water from the well for drinking and domestic
purpose by using motor pump sets. The Corporation entered into the property of the
respondents and removed the motor from the premises under the Tamil Nadu Ground
Water (Development and Management) Act, 2003, later the corporation changed its version
and they claimed to have entered under some other law. Though this contradiction was not
accepted by the Court, it was observed that there is no need to initiate criminal proceedings
against erred officials. In another significant case, it was contended that without notifying
the Act, the authorities are not having right to take steps under the provisions of the Act.
This was accepted and the court directed the government to take steps to notify the Act
xxxiv
.
The Court made an order to State, not to issue any groundwater withdrawal permission till
the Act is notified. The above mentioned cases reflect the conflict in enforcing the
groundwater laws, thereby maintaining the validity of the provisions of Easement Act.
The Water Act, 1974 is enacted not only to maintain and restore the wholesomeness of
water but also to establish appropriate institutions with a view in carrying the objectives of
the Act.
xxxv
The Pollution Control Boards (PCBs) were set up both at the Central and State
level (including Joint Boards) for the effective implementation of the Act.
xxxvi
The PCBs
promote cleanliness of streams and wells in different areas of the state.
xxxvii
The PCBs also
can enter the premises of any industry and take samples, if the water contaminated, the
PCBs can issue order for closures of industry. This is to ensure the quality and quantity of
groundwater, the industries will be indirectly forced to maintain the groundwater levels by
recharging.
The Environmental Protection Act was enacted to protect the environment which includes
groundwater resources. The Act empowers the Central Government as the sole authority to
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 91
exercise its powers to give directions for the stoppage or regulation of the supply of water
for any other service.
xxxviii
Further, the Central Ground Water Board established under this
Act serves as a monitoring agency for groundwater situation, the board provides various
standards and provide technical and information assistance to States
xxxix
. The objectives of
the board include enhancing ground water sustainability through artificial recharge and
rainwater harvesting as a measure for checking the depleting trend of ground water
xl
.
STATE LEGISLATION
Water, as a State subject is to be analyzed from the States perspective. The provisions
relating to MAR is expressed in various local laws, the Tamil Nadu laws are the first of its
kind to provide compulsory rainwater harvesting structure in every establishment and
household
xli
. It is pertinent that these laws come into effect at difficult water situations and
enforced vigorously for a particular period of time
xlii
. One has not come across any recent
studies to know the effectiveness of this law.

Over the last two decades, numbers of states have enacted their own groundwater laws. This
has led to major reforms in the legal regime governing groundwater in India.
xliii
This State
legislation broadly aims to redefine the rights, duties and roles of the government, as well
as those of individuals, vis-a-vis groundwater resources. These laws have also resulted in
institutional reforms and have also attempted to incorporate into groundwater regulation
important norms of environmental law such as conservation and sustainable use.
xliv
Evolving
groundwater laws seek to vest in the concerned state government the power to regulate and
control the use of groundwater by private individuals. Various state Acts have adopted the
licensing system as a regulatory tool (i.e., a permit or registration-based system). A
systematic analysis of this legislation would help us to understand the scope for MAR under
these laws.
ANDHRA PRADESH WATER, LAND AND TREES ACT, 2002

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 92
The title of the Andhra Pradesh state legislation on groundwater indicates the emphasis on
protection and conservation. The extent of regulation could range from mere monitoring of
groundwater use through the registration process to complete prohibition or closing down
of wells. The nature and extent of regulation depends upon the quality and quantity of
groundwater in a particular area. For instance, there could be a complete prohibition on
new wells in areas designated as over-exploited.
xlv
One of the important features of the
evolving regulatory framework is the priority given to drinking water, particularly the
special protection given to public drinking water sources. This prioritization is sometimes
manifested in the form of provisions prescribing the distance required to be maintained by
new wells from public drinking water sources.
xlvi
The Act specifically prohibits ground water
contamination in any manner by anyone
xlvii
and prohibits direct disposal of waste waters into
the aquifers.
xlviii
With a view to improve the groundwater resources by methods of harvesting
and recharge the Act stipulates that the Authority may issue guidelines for constructing
appropriate rainwater harvesting structures in all residential, commercial and other
premises and open spaces.
xlix
The statute has a built in institutional framework for setting up
of groundwater authorities at the state level.
l
The state groundwater authority shall perform
the specific functions of promotion of water conservation and regulate the exploitation of
ground and surface water in the State.
li

TAMIL NADU GROUND WATER (DEVELOPMENT AND MANAGEMENT)
ACT, 2003
The state legislation apart from the protection of groundwater resources interalia attempts
to provide safeguards against hazards of over exploitation and to ensure planned
development and proper management of this vital and limited resource.
lii
This Act applies
to the whole of Tamil Nadu except the city of Chennai and the legal provisions relating to
extraction and use of groundwater in Chennai is governed by a separate legislation
liii
. The
Act empowers the State Ground water Authority to develop, control, regulate and
administer the groundwater and to direct and regulate the development and management
of groundwater resources in the State consistent with conserving it and ensuring its optimal
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 93
and efficient utilization.
liv
The Authority for the purpose of maximizing the feasible,
conjunctive use of surface-water and ground-water may identify and notify suitable areas to
stabilize the existing use or to improve or increase the use of water.
lv
The Act further
confers power upon the Authority to lay down or adopt standards for quality of water
depending on the kinds of water use by having regard to the standards evolved by the
institutions either statutorily empowered or technically competent to do so.
lvi
The Authority
has the power to direct, regulate and control the development, extraction and utilization of
groundwater in the notified area.
lvii
To make suitable modification of groundwater regime
due to mining activities, the Authority if satisfied may direct the disposal of mine water in a
manner that it may be directly used by the farmers and its recharge, if feasible to augment
groundwater storage.
lviii
As a regulatory mechanism, the Act also prohibits the
transportation of groundwater by means of lorry, trailer or any other motor vehicle from
any notified area for any purpose without obtaining a permit under the provisions of the
Act.
lix
Any person desiring to transport groundwater from any notified area for any purpose,
by means of lorry, trailer or any other motor vehicle shall apply to the authority for the
grant of a permit.
lx

KERALA GROUND WATER (CONTROL AND REGULATION) ACT, 2002
The important legal change is the incorporation of objectives of conservation and
development of the resource. Most of the evolving groundwater legislation emphasizes
conservation and development as major objectives. The Act recognizes the need for
conservation in its preamble.
lxi
The Act envisages the classification of areas on the basis of
the condition of the groundwater.
lxii
Further the permit may be denied if it is likely to
endanger the existing use of groundwater in that area. This regulatory framework also
provides scope for subsequent alterations in the conditions specified in the permit or
certificate of registration.
lxiii
The regulatory framework provided under the Act is generally
applicable to the notified areas. The power to notify an area vests with the state
government
lxiv
and therefore the power of the groundwater authority in this regard is
merely advisory in nature. The Kerala Government accorded priority to public drinking
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 94
water use under the Act
lxv
and it mandates for the maintenance of quality of groundwater as
a criterion required to be considered while granting permit or certificate of registration.
lxvi

HIMACHAL PRADESH GROUND WATER (REGULATION AND CONTROL
OF DEVELOPMENT AND MANAGEMENT) ACT, 2005
The Act applies to certain notified areas and permit or registration system is put in place in
such notified areas.
lxvii
The Act empowers the Authority for the purpose of improving the
groundwater situation to identify the areas of groundwater recharge and to issue guidelines
for adoption of rain water harvesting for groundwater recharge in such areas.
lxviii
The Act
requires all users in such notified areas to register their wells.
lxix
Potential users are required
to seek prior permission. The control over groundwater use is sought to be effectuated by
imposing conditions specified in the permit or certificate of registration.
lxx
The Act accords
first priority to drinking water usage over other needs while granting permit or
registration.
lxxi
The need to prioritize drinking water has been expressly recognized by the
judiciary in a couple of cases.
lxxii
The norm of according priority to drinking water is the
prima facie objective of ground water laws. While granting permit the Authority has to
consider the maintenance of quality of groundwater and its usage.
lxxiii

WEST BENGAL GROUND WATER RESOURCES (MANAGEMENT,
CONTROL AND REGULATION) ACT, 2005
The Act aims to manage, control and regulate indiscriminate extraction of ground water in
the state. Groundwater authorities are vested with the responsibility of enforcing the
regulatory tools provided by the relevant statutes to ensure sustainable use. By and large,
the institutional mechanisms provided under various state groundwater laws follow a
similar structure and perform similar functions.
lxxiv
However, there are some variations
across states. For example, West Bengal has put in place a decentralized structure by
providing three levels of groundwater authorities state level, district level and corporation
level.
lxxv
The decentralized institutional mechanism emphasise on preparation of district-
wide groundwater profile periodically.
lxxvi
The Act in its preamble stated that maintenance of
quality of groundwater as an objective and this mandate is to be considered while granting
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 95
permit or certificate of registration.
lxxvii
While granting certificate of registration the
Authority shall consider the groundwater balance, the quality and quantity of groundwater
available in the locality.
lxxviii
The Act also imposes a legal obligation on the District or
Corporation Level Authority to keep a regular vigil on the quality and quantity of water
available from the ground water resources in the district or the corporation, as the case may
be, and promptly bring to the notice of the State Level Authority any sudden deterioration
in ground water resources or contamination of ground water resources with poisonous
metals or chemicals or otherwise.
lxxix

CHHATTISGARH GROUND WATER (REGULATION AND CONTROL OF
DEVELOPMENT AND MANAGEMENT) ACT, 2012
The Act regulates and controls the Development and Management of Ground Water. The
Act mandates the Authority, after consultation with various expert bodies, including Central
Ground Water Authority (CGWA) to control and or to regulate the extraction or the use or
both of ground water in any form in any area, to advise the State Government to declare any
such area to be a notified area.
lxxx
For the purpose of groundwater recharge the Act explicitly
contains a provision under which the Authority may identify the recharge worthy areas in
the State and issue necessary guidelines for adoption of rain water harvesting for ground
water recharge in these areas. In rural areas, watershed management to facilitate ground
water recharge may be encouraged through community participation.
lxxxi
This legal
provision inter alia emphasized the over-exploitation of ground water due to ever increasing
population and other development activities that have led to fall in ground water table,
drying up of wells, reduced sustainability of tube wells, environmental degradation etc. in
many parts of the State. The Act underlines the need for groundwater recharge and rain
water harvesting since it is essential to improve the ground water situation in critical areas.
The Act prohibits contamination of groundwater by anybody including industrial, local
bodies. It also prohibits direct disposal of waste waters into the aquifers.
lxxxii


Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 96
CONCLUSION

The following observations emerge from the discussion on MAR, groundwater laws and
policy,

1. The laws and policies are inconsistent; such an inconsistency is not absolutely bad.
But the criticism is that they cannot operate together in the present situation because
of this inconsistency. If the state prefers to give primacy for policy, it leaves the laws
not to be notified, authorities and rules are not to be made, ensuring that the state
actions are not condemned by law and Courts. This kind of inconsistency defeats the
purpose of both law and policy.
2. The Union and States conflict with each other on various issues relating to
groundwater, specifically on the primacy of the States to enact laws, enforcement of
schemes and funding. These conflicts must end and the States may progressively
make laws and policies ensuring their jurisdiction.
3. Managed Aquifer Recharge is a natural development of scientific studies; the Union
and States must progressively use the scientific advancements relating to
groundwater resources and incorporate them into the legal and policy framework.

MAR: Comparative Table of Selected Groundwater Laws

State

Act
Applicability &
Purpose of
Legislation
General control
of Groundwater
Specific reference
to MAR






Andhra
Pradesh
Andhra
Pradesh
Water, Land
and Trees Act,
2002
Applicable to
all ground
water resources
in the State and
to Promote
Water
Conservation,
and Tree Cover
and
Regulate the
Ground water
contamination
in any manner
by anyone is
prohibited.
[sec.19]

Direct disposal
of waste waters
into the aquifers,
To improve the
ground water
resources, by
harvesting and
recharge,
the Authority
may issue
guidelines for
constructing
appropriate
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 97
Exploitation
and Use of
Ground and
Surface Water
for Protection
and
Conservation of
Water Sources,
Land and
Environment
is prohibited.
[sec.19(2)]
rainwater
harvesting
structures in all
residential,
commercial and
other premises
and open
spaces.
[sec.17(1)]















Tamil Nadu



Tamil Nadu
Ground-water
(Development
and
Management)
Act, 2003
Applicable to
whole of Tamil
Nadu except
the city of
Chennai.
To protect
groundwater
resources to
provide
safeguards
against
hazards of its
over
exploitation
and to ensure
its planned
development
and
proper
management in
the State of
Tamil Nadu
The Authority
shall have power
to direct,
regulate and
control the
development,
extraction and
utilization of
groundwater
[sec.9(3)]
The authority
may direct the
disposal of mine
water in a
manner that it
may be directly
used by the
farmers and its
recharge, if
feasible to
augment ground-
water storage.
[sec.5]
Chennai
Metropolitan
Area
Groundwater
(Regulation)
Act,1987
Applicable to
the whole city
of Chennai and
certain revenue
villages in
Chengalpattu
District.
To regulate and
control the
extraction and
use of
Licence to be
obtained for
extraction, use
or transport of
groundwater.
[sec.5]
To ensure
optimum
utilisation of
groundwater and
formation of
hydraulic barrier
against sea water
intrusion, the
Government shall
issue instructions
to the Board for
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 98
groundwater in
any form and to
conserve the
same.
implementing
within such
period as may be
prescribed the
scheme for
artificial
recharge.
[sec.14]


Kerala
Kerala
Ground Water
(Control and
Regulation)
Act, 2002
Applicable to
certain notified
areas
[sec.6(1)]
Grant of Permit
to extract and
use ground
water [sec.7]





Himachal
Pradesh
Himachal
Pradesh
Ground Water
(Regulation
and Control
of
Development
and
Management)
Act, 2005
Applicable to
notified areas
To regulate and
control the
development
and
management of
ground water
Establishment of
an
authority(Sec.3)
Licence to
extract
groundwater(
sec.6)
Identify the areas
of ground water
recharge and
issue
guidelines for
adoption of rain
water harvesting
for ground water
recharge in such
areas
[sec.15(1)]



West Bengal
West Bengal
Ground Water
Resources
(Management,
Control and
Regulation)
Act, 2005
Applicable to
the State of
West Bengal
To manage,
control and
regulate
indiscriminate
extraction of
ground water in
West Bengal
Authorities at
various levels
(sec. 3)
Sinking of
wells for
extracting or
using ground
water (Sec. 7)
State Level
Authority to issue
certificate for
recharge of
ground water
[sec.8(2)(c)]



Chhattisgarh
Chhattisgarh
Ground Water
(Regulation
and Control
of
Development
and
Management)
Act, 2012
Applicable to
the State of
Chhattisgarh
To improve the
ground
water situation

Establishment of
an
authority(sec.4)
Permission to
extract
groundwater
(sec. 7)

The Authority
may identify the
recharge worthy
areas in the State
and issue
necessary
guidelines
[sec.20(1)]
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 99
NOTA BENE

*ACKNOWLEDGEMENT
Co-funding to the collaborative project Enhancement of natural water systems and
treatment methods for safe and sustainable water supply in India Saph Pani
(www.saphpani.eu) from the European Commission within the Seventh Framework
Programme (grant agreement number 282911) is gratefully acknowledged. The authors
acknowledge Mr. C. E. Paratap, Advocate, Chennai for the research assistance.

REFERENCES

i
Saroj Sharma, Managed Aquifer Recharge: Introduction, UNESCO-IHE, Institute for Water Education, Delft
(2011).
ii
The Plachimada controversy is an example of emerging conflict between the public and industries over
depleting groundwater resources and pollution. See generally, Sujith Koonan, Groundwater Legal Aspects
of Plachmada Dispute, in P.Cullet, A.Gowlland-Gualtieri, R.Madhav and U.Ramanathan(eds.), Water
Governance in Motion: Towards Socially and Environmentally Sustainable Water Laws, Cambridge
University Press India Pvt. Ltd. (Delhi:2010).
iii
Debasis Poddar, Groundwater Governance in India: An Imperative for Climate-conscious Law and State
Policy, unpublished paper presented in Second International Conference on Climate Change and
Sustainable Management of Natural Resources, organized by ITM Universe- Gwalior held on December 5-7,
2010.
iv
National Water Policy, 2012; Jain,S K, Harnessing the Managed Aquifer Recharge Potential for Sustainable
Ground Water Management in India, India Water Week 2012 Water, Energy and Food Security : Call for
Solutions, New Delhi (2012).
v
Gale,I N, Macdonold,D M J, Calow,R C, Neumann, I, Moench,M, Kulkarni,H, Mudrakartha,S and
Palanisami,K, Managed Aquifer Recharge:An Assessment of its role and effectiveness in watershed
Management, Report of the DFID KAR project R8169, Augmenting Groundwater Resources by artificial
Recharge (2006).
vi
Supra note 2.
vii
Subsistence agriculture refers to farming for basic livelihood needs. Refer, http://www2.ac-toulouse.fr/lyc-
saintex-ouaga/index.php?option=com_content&view=article&id=169:subsistence-farming, accessed on
10.06.13.
viii
Entry 17, List II, Seventh Schedule, Constitution of India.
ix
The 11
th
and 12
th
Schedules to the Constitution of India refers to water management, watershed development
and water supply as a subject which may be managed by local governments.
x
Subhash Kumar Vs- State of Bihar AIR 1991 SC 420.
xi
M. K. Balakrishan and Others -Vs- Union of India and Others 2009 (3) CTC 412; Delhi Water Supply &
Sewage Disposal Undertaking and Another -Vs- State of Haryana and Others 1996 (2) SCC 572. In these cases
the Supreme Court recognized that the right to clean, healthy and potable water is a part of life and
livelihood under Article 21 of the Constitution of India.
xii
Ibid
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 100

xiii
Material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical
resources but also moveable or immovable properties, State of Tamil Nadu v Abu Kavur Bai, AIR 1984 SC
326.
xiv
Art. 39(2), Constitution of India; See generally, David Ambrose. A, Directive Principles of State Policy and
Distribution of Material Resources with Special Reference to Natural Resources Recent Trends, Journal of
the Indian Law Institute, 55 (2013) the author concludes that the method of distribution of material
resources are subject to judicial scrutiny.
xv
Art. 48(A), Constitution of India.
xvi
Art. 51(A), Constitution of India.
xvii
National Water Policy, 2012, Part 2.
xviii
Ibid.
xix
The case is referred in Pacahi Perumal Vs State of Tamil Nadu, Judgement dated 08.07.2011 in
W.P.(MD)No.6826 of 2011, available at http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013)
xx
Supra note 18.
xxi
Ibid, Part 6.
xxii
Orissa Water Policy, 2007, Part 9.
xxiii
Environment (Protection) Act, 1986 Act No. 29 of 1986.
xxiv
Sujith Koonan, Legal Regime Governing Groundwater, in Philippe Cullet, Alix Gowlland Gualtieri, Roopa
Madhav and Usha Ramanathan (Eds.), Water law for the twenty-first century: national and international
aspects of water law reform in India (2010) p.191.
xxv
S.Ramamirtham v. State of Tamil Nadu, Judgement of the High court of Madras dated 01.04.2005 in Writ
Petition 1833 of 2005.
xxvi
Ibid.
xxvii
Tamil Nadu Ground Water (Development and Management) Act, 2003 has not been brought into force.
But some of the principles in this legislation are given effect by Government Orders.
xxviii
Supra note 3: The plachimda dispute is an another example of non application of laws towards
groundwater situation. The states asserts their right to extract water resources as explained in the previous
Tamil Nadu case, when it comes to protection of resources the same states wither away from responsibility.
xxix
See, Report of the Committee for Drafting of National Water Framework Law, available at
http://mowr.gov.in/writereaddata/linkimages/nwfl1268291020.pdf (last accessed on 06.06.2013).
xxx
The researchers have accessed the critical appraisal of the water policy and framework law by member of
various forums, specifically at www.indianwaterportal.org.
xxxi
Illustration (f), Section.7(a), Easement Act, 1882, Act No. V of 1882.
xxxii
The case is referred in Pacahi Perumal v. State of Tamil Nadu, Judgement dated 08.07.2011 in
W.P.(MD)No.6826 of 2011, available ate http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013).
xxxiii
Crl. R.C. (MD) No. 191 of 2010 16 November 2011. http://indiakanoon.org/doc/615939472.
xxxiv
Pacahi Perumal v. State of Tamil Nadu, Judgement dated 08.07.2011 in W.P.(MD)No.6826 of 2011,
available at http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013).
xxxv
Water (Prevention and Control) Act, 1974 (Act No. 9 of 1974)
xxxvi
Ibid, Section 3, 4 and 13.
xxxvii
Ibid, Section 16 and 17 .
xxxviii
Supra note 24, Section 5 (b) .
xxxix
Ibid, Section. 3(3).
xl
See the official website of the boards, http://cgwb.gov.in/objectives.html (last accessed on 10.06.2013).
xli
Tamil Nadu Municipal Laws(Second Amendment) Ordinance, 2003: Rules were also made under various
building regulations to make rainwater harvesting a mandatory.
xlii
See, Souvik Bose and Abdus Salam, The Way out of dry times: Making rainwater Harvesting Mandatory, 1
Indian Juridical Review (2004) p. 256.
xliii
For the list of States having separate groundwater law, see Table below.
xliv
Supra note 3, p.191.
xlv
Andhra Pradesh Water, Land and Trees Act, 2002, Section 11.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 101

xlvi
Ibid., Section 10.
xlvii
Ibid., Section 19.
xlviii
Ibid., Section 19(2).
xlix
Ibid., Section 17(1).
l
Ibid., Section 5(1).
li
Ibid., Section 6.
lii
See, Tamil Nadu Ground Water (Development and Management) Act, 2003, Preamble.
liii
Chennai Metropolitan Area Groundwater (Regulation) Act,1987.
liv
Ibid., Section 3.
lv
Ibid., Section 4.
lvi
Ibid., Section 6.
lvii
Ibid., Section 9(3).
lviii
Ibid., Section 5.
lix
Ibid., Section 13(1).
lx
Ibid., Section 13(2).
lxi
Kerala Ground Water (Control and Regulation) Act, 2002.
lxii
Ibid, Section 7(7).
lxiii
Ibid., Section 11.
lxiv
Ibid., Section 6.
lxv
Ibid., Section 10.
lxvi
Ibid., Sections 8(5)(d) & &(7)(d).
lxvii
Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005
Section 5.
lxviii
Ibid, Section 15(1).
lxix
Ibid, Section 7(1).
lxx
Ibid, Section 7(3).
lxxi
Ibid, Section 8(2).
lxxii
F.K.Hussain v. Union of India AIR 1990 Ker.321 and Venkaatagiriappa v. Karnataka Electricity Board 1999
(4) Karnataka Law Journal 482.
lxxiii
Supra note 68 Sections 7(5)(d) and 8(4)(d).
lxxiv
Supra note 3, p.192.
lxxv
West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005
lxxvi
Ibid., Section 9(a).
lxxvii
Ibid., Sections 7(3)(a).
lxxviii
Ibid., Section 8(2)(a).
lxxix
Ibid., Section 9(c).
lxxx
Chhattisgarh Ground Water (Regulation and Control of Development and Management) Act, 2012 Section
6(2).
lxxxi
Ibid., Section 20(1).
lxxxii
Ibid., Section 20(5).
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 102
STATE OBLIGATIONS UNDER INTERNATIONAL
CRIMINAL LAW: PROGRESS, CHALLENGES AND
PROSPECTS
DEEPA KANSRA
INTRODUCTION
Human rights reflect the collective aspirations and commitments of the global
community. Over the years, the human rights movement, zealously led by several players
in addition to the state, has resulted in the acceptance of a variety of global and domestic
obligations. In specific, the UN created human rights regime has endorsed a
multidimensional approach towards the articulation and implementation of human rights
obligations.
With several challenges being faced, the inability to prosecute for violations of
human rights has been most critical and complex for international law. In this regard,
international criminal law (ICL), a specialized branch of international law, is authentically
determined to realize the objective of prevention and prosecution of crimes. ICL is
potentially the medium that pushes states to seriously consider their conduct in relation to
grave violations, commonly referred to as international crimes. Over the years, the
mandate of States under ICL has expanded vigorously, encompassing efforts made even by
non-state institutions and several other players.
i
The objective of international criminal law
has also become clearer and more defined with the adoption of specific rules and the
creation of specialized institutions.
Setting the pace for a stronger role to be played by international law, the
International Law Commission in 1954 adopted a Draft Code of Offences against the Peace
and Security of Mankind, which declared genocide, aggression, crimes against humanity,
and war crimes as criminal under international law. Post World War II, several
institutional mechanisms were created for the sake of the prosecution of individuals
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 103
committing the said crimes.
ii
Justice was sought to be achieved through a variety of
institutions like specialized Tribunals, Truth Commissions, Special Courts (Sierra Leone),
Hybrid Chambers (Kosovo, East Timor). The creation of these institutions is said to have
been supported by three political reasons;
a. Replacing private vengeance with the rule of law and thereby promoting long-term
peace and stability
b. Creating a historical record as a means to educate future generations, and
c. Providing a sense of closure for the injured individuals and communities.
iii

More specifically, the mandate of the specialized institutions has been to deal with impunity
for grave violations. In terms of meaning, impunity signifies that that those who deserve
punishment for grave violations have escaped the rigours of the law.
iv
Even today,
international criminal law is progressing on a shared understanding that there shall be no
impunity for international crimes. The permanent mark of ICL has been made with the
International Criminal Court (ICC), created under the Rome Statute and committed to
ending impunity for international crimes. The creation and working of this international
forum has created obligations for states, both individually and collectively, to deal with
impunity. The determination of the ICC is to ensure the administration of punitive
justice up to the international level.
v
Since the creation of the ICC, there are stronger and
more visible implications for national systems. To illustrate on that point, in 2011,
Netherlands, Belgium and Sloveni
vi
urged the UN General Assembly (UN GA) to begin
drafting a new multilateral Convention (State Cooperation Convention) which would
facilitate cooperation amongst the States in the investigation of war crimes and crimes
against humanity.
It is true that in the field of criminal prosecution, both international law and
domestic law have evolved and faced obstacles. The fullest realization of the objectives set
out by ICL is also hindered because of a variety of reasons;
a. The failure to define crimes under international law as crimes under national law
b. Inadequate definitions of crimes and principles of criminal responsibility
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 104
c. The political control over decisions to investigate, prosecute or extradite
d. Restrictions on the rights of victims with regard to the proceedings and to reparation
e. The recognition of amnesties and similar measures of impunity.
vii

The application of the ICL also involves great troubles owing to the involvement of state
officials in the commission or instigation of the international crimes. The concern has been
consistently raised by the International Law Commission since the 1950s, (Draft Code of
Offences Against Peace and Security of Mankind 1950, 1954, 1996), that the official position
of an individual who commits a crime against the peace and security of mankind, even if he
acted as Head of State, does not relieve him of criminal responsibility. In other words,
immunity is not enjoyed by Heads of State or government. In essence, the duty to prosecute
individuals for the commission of international crimes, irrespective of official position, has
developed as a fundamental principle of international criminal law. The rule affects both
national law and international law.
THE DUTY TO PROSECUTE

There are three identifiable issues that necessarily must be discussed in the context of
international criminal law;
a. The nature of the duty to prosecute
b. The relationship between domestic law and international criminal law
c. The political obstacles to ending impunity.

The objective of ending impunity for international crimes has led to the articulation
of the duty to prosecute under ICL. The duty to prosecute emanates from treaty law,
international customary law, and jus cogens norms. For instance, Article 1 of the Statute
for the Court on Sierra Leone states that there is hereby established a Special Court for
Sierra Leone to prosecute persons who bear the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law committed in the territory of
Sierra Leone since 30 November 1996.
viii
In 2012, the International Court of Justice in
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 105
Belgium v. Senegal
ix
established that it is the duty of states to investigate and prosecute
crimes under international law. Observable, the exercise of universal jurisdiction has been
effectuated by various states like that of France, Argentina, Germany, Netherlands,
Norway, South Africa, Spain etc.
x

The mandate for effective investigation and prosecution of grave violations has
begun to reflect in the endeavours made by the UN and several states. The General
Assembly in 2008 adopted a Resolution on the Promotion of the International Criminal
Court
xi
. The Resolution states that noting with concern the continuation in some parts of
the world of persistent violations of international humanitarian law and international
human rights law; and reaffirming that all states have the primary duty to investigate,
prosecute, and punish those violations so as to prevent their recurrence and avoid the
impunity of the perpetrators of those crimes, by taking measures whether at the national
or the international level, including, as appropriate, referral to the International Criminal
Court
In 2013, a statement was made by the European Union at the United Nations
General Assembly Thematic Debate on the Role of the international criminal justice in
Reconciliation. The statement is expressed as follows, we wish to reiterate our very strong
support for international criminal justice, which is key to ending impunity, to assist with
building peace and reconciliation, and to bringing justice to, and rehabilitation for, victims
of mass atrocities Those who commit the most serious crimes of international concern
must know that they will be held accountable for their actions.
xii
In 2013, the United
Nations High Commissioner for Human Rights stated that again, despite the truly
inspiring advances in combating impunity and ensuring accountability both at the
international and national levels, including through transitional justice processes, there are
still far too many people with command responsibility who escape justice for serious
crimes and gross human rights violations. Hundreds of thousands of people have died in
genocides in Rwanda and Bosnia and Herzegovina; the Palestinian territories are still
occupied; massive violations have occurred in Iraq and Sri Lanka; and war crimes continue
to be committed in numerous internal conflicts including those continuing in Afghanistan,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 106
the Democratic Republic of the Congo, Mali, Sudan and Syria. We must continue to
nurture and strengthen the system designed to deal with such crimes and violations, and
those who commit them. It is also critical that we in the international community do our
utmost to prevent such situations from developing or deteriorating.
xiii

In this regard, the permanent court (International criminal court), was also an outcome
of the persistent efforts of the international community to have a criminal court of
universal acceptance.
xiv
The principle of complementarity has always been fundamental to
the acceptance of the mandate of the ICC by the international community. In essence, the
principle allows States to investigate individuals within their jurisdiction who are actual or
potential targets of ICC investigation.
xv
Complementarity establishes a relationship
between the ICC and the States, wherein the former is to act when the State authorities fail
to pursue prosecution of international crimes. The acceptance of the principle is evident
from the Preamble of the Statute which deals with the duty of every State to exercise
jurisdiction over those committing international crimes.

DOMESTIC LAW AND INTERNATIONAL CRIMES

The impact of ICL on domestic legal systems has been notable in the context of various
legislative initiatives undertaken.
A survey was undertaken in this regard by Amnesty International to evaluate the
level of incorporation of international criminal law rules into domestic penal law. The
preliminary survey indicates that 164 (approximately 85 %) of the 193 UN member states
have defined one or more of the four crimes under international law (war crimes, crimes
against humanity, genocide and torture) as crimes in their national law. However, not only
have many states failed to define all of these crimes under international law as crimes
under national law, but in many instances the definitions are not consistent with the
strictest requirements of international law.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 107
In Canada, the Crimes against Humanity and War Crimes Act (2000) combines the
two complementary approaches to incorporating international crimes into Canadian law. It
refers to international law but also defines specific crimes at times. The three core crimes
are defined by immediate reference to customary international law, conventional
international law and general principles of law... While the Act relies partially on the Rome
Statute and international law to define genocide and crimes against humanity, it does not
define war crimes at all. Rather, it refers to war crimes as a concept; it assumes that
international law and practice will serve as the paramount source of judicial guidance
regarding these crimes.
xvi

In Africa, the Protocol for the Prevention and the Punishment of the Crime of
Genocide, War Crimes, and Crimes against Humanity and All Forms of Discrimination,
2006 is an important sub-regional instrument which mandates for the prosecution of
individuals for international crimes. (Article 12 states that official states shall not act as a
shield for criminal liability). In 2003, Rwanda adopted the Law 33 which outlaws immunity
of state officials for international crimes. Burundi in 2009 amended its Penal Code to
include and punish international crimes such as genocide, crimes against humanity and
war crimes. Kenya adopted the International Crimes Act in 2008. The Constitution of
Kenya requires that the immunity of a state official should not prevail over Kenyas duty to
prosecute arising from any ratified treaty outlawing immunity (Article 2 (5)) Uganda
enacted the International Criminal Court Act, 2010 to give effect to the Rome Statute. The
Criminal Code of Ethiopia (2005) prohibits and punishes international crimes and outlaws
immunity.
In UK the International Criminal Court Act (2001) has been adopted with the following
objective, an Act to give effect to the Statute of the International Criminal Court; to
provide for offences under the law of England and Wales and Northern Ireland
corresponding to offences within the jurisdiction of that Court; and for connected
purposes. In brief, the Act provides for the procedure to be followed in cases where in the
ICC requests for the arrest and surrender of an individual. It also defines genocide, crimes
against humanity and war crimes as crimes under the law of England.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 108

CONCLUSION

In 1998, the challenge of impunity was sought to be checked by the creation of the
International Criminal Court. Since then, ICL has grown tremendously to create both a
sense of security and discomfort for the global community. With several states
incorporating the mandate of prosecution within domestic law, several others have
challenged the very existence and functioning of the ICC. For instance, the United States
has refused to support the ICC and alleged to use any force necessary to secure its
officers/personnel from the ICC. India has referred to ICC as an institution in conflict with
the bounds of sovereignty.
xvii

Despite the obstacles present, ICL is certainly progressive and capable of
establishing a firm ground for dealing with impunity. The Statute of the ICC is an
advanced document since it aims to address the fundamental concerns over the
prosecution of gender related crimes, the role of victims during trial before the ICC, the
provision for compensation and reparation. As evident from the recent and initial
judgments of the ICC, international criminal law is rightfully setting the pace for the
collective and efficient sharing of responsibilities amongst the global and domestic
institutions of justice
xviii
.
REFERENCE

i
Reference can be made to the Syria Justice and Accountability Centre, set up by an US based non-
governmental organization in 2012 with the mandate for collecting, processing, analyzing crucial information
of violations of humanitarian law and human rights in Syria. The objective of the centre is to identify patterns
of events, capture a historical record of victims experiences in view of a broad range of future accountability
and transitional justice processes. See Website of the SJAC at http://syriaaccountability.org/
ii
During the last fifteen years, international courts have advanced international criminal justice in regional
contexts and within the narrow jurisdictional mandates of the International Criminal Tribunals for the former
Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the
Courts of Cambodia, and war crimes courts in Bosnia- Herzegovina, Kosovo, and Timor. While those tribunals
were evolving, the international community embraced the idea of a permanent criminal court that in most
respects would obviate the need for the time- consuming and costly creation of specialized international or
hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the
world. See David Sceheffer, Ashley Cox, The Constitutionality of the Rome Statute of the International
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 109

Criminal Court, Vol. 98 No.3 The Journal of Criminal Law and Criminology 983-1068, 989 (2008); Yuval
Shany, Assessing the Effectiveness of International Courts: A Goal Based Approach VOL. 106: 225 The
American Journal of International Law, 225-270 (2012).
iii
Jenia Iontechva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, Vol 48:3
Virginia Journal of International Law 530-594, 536 (2008).
iv
George P. Fletcher, Jens David Ohlin, Reclaiming Fundamental Principles of Criminal Law in the Darfur
Case 3 Journal of International Criminal Justice 539-561, 540 (2005).
v
Marlies Glasius, The International Criminal Court: A Global Civil Society Initiative, 2 Routledge New York
(2006).
vi
See Amnesty International, Strengthening this Essential Tool of International Justice 19 (October 2012)
https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/ior530202012en?CMD=VEROBJ&MLKOB=32120785151
vii
Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World,
Amnesty International Publications, United Kingdom 11 (October 2011).
http://www.amnesty.org/fr/library/asset/IOR53/004/2011/en/d997366e-65bf-4d80-9022-
fcb8fe284c9d/ior530042011en.pdf
viii
http://www.icrc.org/ihl.nsf/WebART/605-%201?OpenDocument
ix
http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=144&code=bs&p3=5
x
See Hirad Abtahi & Steven Arrigg Koh, The Emerging Enforcement Practice of the International Criminal
Court, Vol. 45 Cornell International Law Journal 1-23, 4 (2012).
xi
General Assemble- AG/RES. 2364 (XXXVIII-O/08), Available at http://www.oas.org/dil/AGRES_2364.pdf
xii
EU Statement available at http://www.eu-un.europa.eu/articles/en/article_13382_en.htm
xiii
Opening Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights at the 22nd
session of the Human Rights Council, (2013). Available at
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13031&LangID=
xiv
Lydia Apori Nkansah, International Criminal Justice in Africa: Some Emerging Dynamics, Vol. 4 No. 2
Journal of Politics and Law 74-84, 74 (September 2011).
xv
David Sceheffer, Ashley Cox, The Constitutionality of the Rome Statute of the International Criminal
Court, Vol. 98 No.3 The Journal of Criminal Law and Criminology 983-1068, 997 (2008).
xvi
Morten Bergsmo, Mads Harlem and Nobuo Hayashi (editors), Importing Core International Crimes into
National Law, Torkel Opsahl Academic EPublisher 15 (2010).
xvii
See Vahida Nainar, Saumya Uma (Eds.), Combating Impunity: A Compilation of Articles on the ICC and its
Relavance to India, Womens Reserach Action Group (April 2003); Saumya Uma, ICC and India: Responses to
Queries Raised by Parliamentarians, Womens Research and Action Group in Association with Peoples Watch,
Tamil Nadu (2006).
xviii
See Kai Ambos, The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A
Comprehensive Analysis of the Legal Issues Vol. 12 No.2 International Criminal Law Review (2012);
Alexander Greenawalt, Justice without Politics: Prosecutorial Discretion and the International Criminal
Court Vol. 39 NYU Journal of International Law and Politics (2007).
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 110
CONTRIBUTION OF SUFISM IN RELIGIOUS POLICY
OF MODERN INDIA
GOURISHWAR CHOUDHURI

Despite use of the term Secular in the Constitution of India, in practice, essence of secularism
is reduced (if not abused) to appease all religions including their minute denominations as
well. Such official religious policy of the State in turn has encouraged fusion of religion and
politics that prompts the countrymen of diverse religions bleed inter se and all these are
accomplished in the name of divinity. Sufism is a cult that inspires a transcendental
trajectory of secularism since long back.
It has been rightly observed that Sufism is free from the shackles of religion. Thus the
universality of Sufism is accepted on all hands. The present paper makes an attempt to trace
the origin of Sufism, its role as an unifying and syncretistic force in Medieval India and the
current relevance of its teachings in fostering communal harmony and religious tolerance.
Before studying Sufism as a phenomenon it would be profitable to
study the emergence of Islam as a religion. It was during the holy month of Ramadan in
610 A.D. that, an Arab businessman had an experience that changed the history of the
world. Muhammad ibn Abdullah used to retire to a cave in the Mount Hira every year at
this time to pray, fast and give alms to the poor. He was much concerned at what he
perceived to be a crisis in the Arab society. There was growing spiritual restlessness in
Mecca and throughout the Arabian peninsula as the Arabs knew that the Judaism and
Christianity which was practised in the Persian and the Byzantine empires was more
sophisticated than their own pagan traditions. It seemed to many of the thoughtful people
in the Arabia that the Arabs were a lost race ignored by God himself.
All was to change on the night of 17 Ramadan when Muhammad felt himself
overpowered by a devastating presence. A voice ordered him to recite and he recited in the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 111
name of Allah. In this way the Holy Quran was first revealed to Muhammad. At first he kept
quiet as more revelations poured in and it was only in 612 A.D. that he felt empowered to
preach and gradually gained converts- his wife Khadija, his cousin Ali, his friend Abu Bakr
and the young merchant Usman. Its teachings were simple it advocated the worship of a
single God called Allah who had created the world and who would judge humanity in the
last days instead of polytheism and idol worship.
The new sect was called Islam (surrender) and a man or woman who
made this submission of their entire being to Allah was called a Muslim. Muhammad
acquired a small following and eventually some seventy families converted to Islam. The
powerful man of Mecca soon began opposing Muhammad as they believed he was
preaching against the belief of their fore fathers. The continued hostility of the Quraysh
compelled the Prophet Muhammad to look elsewhere for the propagation of his faith. He
ordered his followers to migrate to Yathrib. He himself migrated to Yathrib which was later
renamed Madinah and reached there on 2
nd
July 622 A.D. This is called Hijrat or Migration
and the Muslim era Hijri dates from this event. Phillip K. Hitti observes, The Hijrat proved
a turning point in the life of Muhammad.
i
The years of humiliation, of persecution were
over and the years of success begun. From 622 to 632 A.D. Prophet Muhammad was in
charge of the expanding community (Umma) at Medina and by the time of his death in 632
A.D. almost all the tribes of Arabia had joined the Ummah. During the rule of the Umayyad
(661-750A.D.) and the Abbasid caliphs (750-1258) Islam spread over the three continents of
Asia, Africa and Europe.
ii

However not long after the Prophets death Islam began to have its internal
convulsions. The first great schism took over the question of the privileges of the
descendants of the Prophet, especially through the line of his cousin and son-in-law Ali and
it involved both theological and political issues. This division led to the emergence of the
sect called Shias.
EMERGENCE OF SUFISM
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 112
Another important development was the growth of Sufism or Islamic mysticism. Before
tracing the origin of Sufism it is important to discuss the origin of the word Sufi. Most of the
Sufis hold it is derived from the word Safa (purity) and that Sufi is one who has been
purified from all worldly desires and passions. Others connect it with the word Saff (rank)
since a Sufi in spirituality is in the first rank by virtue of his communion with the Supreme
Being (Allah). There is another school of opinion, which holds that the derivation of the
word is not on any philosophical grounds and that it is derived from the word Suf- the
garment of coarse un-dyed wool- which has been the habit of the Sufi saints and all those
who follow the ascetic way of life.
The genesis of Sufistic tendency in Islam is obscure as it is a
complex phenomenon. It seems to have gained currency in the second century of the Hijri
(Islamic era). It developed as an obvious reaction to the growing theological prescriptions of
earning merit (sawab) with God for reward in afterlife.
iii
However ancient Sufism had strong
ascetic tendencies while the mystical element in it was insignificant.
iv

DOCTRINES OF SUFISM
The Sufis admire God in everything and it can very well be asserted that the basis of Sufism
is essentially universal. It is not a sectarian religion outside the pale of Islam but it differs
from orthodox Islam in its attitude towards God and the problems of life. The Sufis seek to
explore the spiritual world not through the cold formalism of the Law (Shariat) but through
the warm mystic path of way (Tariqah) of yearning after and coming into union (wasl) and
fellowship with God. In fact we can say that if mysticism deals with inner and emotional
life of man than Sufism seeks to give a mystic interpretation to Islam. According to the
Islamic theory Sufism was born in the bosom of Islam. Louis Massignon, the French
orientalist and R.A. Nicholson and Arberry the two British scholars are of the opinion that
Sufism is essentially Islamic, the Quran and the Hadith supplying its basic framework. But it
would be historically incorrect to claim that Sufism was not influenced by foreign ideology
or element. Mysticism was prevalent among different peoples before the advent of Islam-
the Chinese, the Jews, the Persians, the Greeks and the Indians. So with the expansion of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 113
Islam in the different parts of the globe Sufism or Islamic mysticism came to adopt various
forms.
v
Dr. Tarachand aptly remarks, Sufism is a complex phenomenon. It is like a stream
which gathers volume by the joining of tributaries from lands. Its original source is the
Quran and the life of Muhammad. Christianity and neo-Platonism swelled it by a large
contribution. Hinduism and Buddhism supplied a number of ideas and the religion of
ancient Persian Zoroastrianism brought to it its share.
vi
On other hand some scholars
believe that although some concepts such as nirvana or bhakti may have been transmitted
to the Arab world from Sind but the positive evidence for it still remains tenuous.
vii

Sufism has produced some of the most loveable men and women of God. One of the
earliest Sufi mystic was a woman Rabia of Basra (717-801A.D.) who has inspired a number of
later Sufis. She laid emphasis on love of God (ishq) as the only valid reason of obeying Him.
The logical corollary of this absorption in love towards God was the rejection of Paradise as
the goal of ethical endeavour and its replacement by an aspiration for annihilation (fana),
the elimination of self through the attainment of an absolute union with God. In fact when
Mansur bin Hallaj proclaimed Anal-Haq (I am Truth) he was merely expressing the Sufi
belief that unification with God was the highest stage of enlightenment. But he was arrested
on the charge of heresy and on his refusal to recant was executed (10
th
century).
The philosophical ideas and the doctrines of Sufism were formulated between the 10 and
the 12
th
century, the rise of various schools or silsilahs was complete and the organization of
the Khanqahs or hospices had been established. Some of the Sufis also supported musical
gatherings (sama) in which a state of ecstasy was created but this was again frowned upon
by the orthodox ulema. Al- Ghazali (d. 1112) helped in many ways to reconcile mysticism
with Islamic orthodoxy.
SUFISM IN INDIA AND ITS SYNCRETISTIC ROLE
There are three distinct phases in which the Muslim incursion took place in the Indian sub-
continent. The first phase is the conquest of Sind and Multan in 712 A.D. by Muhammad bin
Qasim a lieutenant of Hajjaj bin Yusuf, the viceroy of the eastern province of the Umayyad
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 114
Caliphate. This conquest did not produce any long term impact. In the second phase the
Yamini Sultans, Amir Sabuktagin and his son Sultan Mahmud repeatedly invaded the
Indian sub continent in the 11
th
century and the latter in particular penetrated deep into the
sub-continent invading as far as Kanauj in the East and Somnath in Gujarat in the South.
The third phase started with the Battle of Tarain (1191) and led to the establishment of
Turkish rule in India with Delhi as the capital. It was in the third phase that a number of
Sufi saints arrived and settled in India.
The earliest name of the Sufi saint that we come across in India is Ali Hujwiri (d. 1071). In
fact the Sufis by this time were divided into a number of schools or silsilahs. Abul fazl in his
Ain-i-Akbari lists fourteen silsilahs. Some of which are Habibe, Zaidi, Baghdadi, Chishti,
Tusi, Firdausi, Suhrawardi and Shattari. However the two most influential orders were the
Chishti and the shurawardi centered at Delhi and Multan respectively. The Chishti order
was founded by Khwaja Abdal Chishti in Herat and brought to India by Khwaja Moinuddin
Chishti (1141-1236) who came to India in 1192 and settled around Ajmer. The most famous
Chishti Sufis included Nizamuddin Auliya of Delhi and Nasiruddin Chirag Delhi. On the
other hand the Suhrawardi order was founded by Shaikh Shihabuddin Suhrawardi but the
real founder of the order in India was Shaikh Bahauddin Zakariya.
These Sufi saints played an important role in bringing about a
rapprochement between the Hindus and the Muslims. In fact the Sufi saint adopted many
Hindu practices and were messengers of religious syncreticism. Historians observe that
there are many apparent similarities between Hindu thought and Sufism in Islam especially
in its developed form. Al- Beruni (c.973-1048) remarked that the Sufi theories of soul were
similar to those in Patanjalis Yoga Sutra. He also identifies the Sufi doctrine of divine love
as self-annihilation with parallel passages from the Bhagavad Gita.
viii

By the thirteenth century the Indian Sufis were confronted with
the Kanpatha (split-eared) yogis or the Nath followers of Gorakhnath. The Yogic Natha cult
was compound of Patanjalis Yoga doctrines, Buddhist and Hindu Tantricism, Saiva agama
doctrines and the principles of the Hindu science of alchemy (rasayana). Siva (Adi Natha)
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 115
was considered as its legendary founder and Matsayendranatha as its first human preceptor.
However it was Gorakhnath
ix
, the successor of Matsayendra who built a dynamic
organization and philosophy through treatises and poems.
Renowned Sufis of the Chishti, Firdausi and the shattari orders freely associated with
the Natha Yogis. Shaikh Nasiruddin Chiragh Delhi observed that controlled breathing is the
essence of Sufism. He urged practising articulated breathing like the Yogis and gradually
yogic postures and controlled breathing became an integral part of Chishtiyya Sufi practise.
Some Sufis also adopted the practise of growing their hair long like the Yogis.
x
The Nath
doctrines had great influence on the Chishti Sufi Shaikh Abdul Quddus Gangohi. His Hindi
nom de plume was Alakh (Imperceptible). He described Gorakhnath not as a person but an
Absolute Being, a Perfect Man (one who realised oneness with God).
xi

The Nath ideas found great popularity in fifteenth century Bengal. The
Amritakunda, a text on Hatha Yoga, was first translated into Arabic in Bengal in the early
thirteenth century. A converted Tantric Brahman, Bhojar Brahman or Bajra Brahma helped
Qazi Rukunuddin Samarqandi, Imam and chief Qazi of Lakhnauti to translate it into Arabic
and Persian (Hauz ul Hayat).
xii
Sayyid Sultan of Chittagong also composed a number of
Bengali works on Muslim themes of absorption into God with Yogic and Hindu overtones.
The Natha Siddhas Conception of Ultimate Reality resembled the Sufi concept of Unity of
Being (Wahadat ul Wajud) explained by Persian Sufi poets like Attar (c. 1142-1220),
Jalaluddin Rumi (1207-73), Shabistari (d. 1320) and Jami (1414-92). Sufis like the Vedantists
strongly believe in the philosophy that all is one and one is all. In fact the theses of the
higher Vedanta and that of Rumis doctrine of the Unity of Being is essentially one and the
same thing.
The Hindu mystic tradition typified by Vaishanavism influenced Sufism especially with
regard to the relation between God and Man. Ibn ul Arabis symbolism of love hardly
differed from the poems on Radha- Krishna love. A sixteenth century Sufi saint Shaikh
Abdul Sahid Wahid Bilgrami (1510-1608) compiled a Persian dictionary Haqaiq-i- Hindi
which was intended to crush orthodox opposition to the use of Vaishnavite themes in the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 116
Hindi poetry recited by the Chishtiyya Sufis to arouse ecstasy. The dictionary also showed
the relevance of the Symbolic poetry of Vaishnava mysticism to Islam
xiii
.
The cross-fertilization of Sufi beliefs with those expressed by the
Kashmiri Saivite woman Yogi Lalla is reflected in the Rishi movement of Shaikh Nuruddin
(d. 1439) of Kashmir. The Shaikhs teachings are embodied in his Kashmiri verses
some of which are almost identical with those composed by Lalla. Shaikh Nuruddin and his
disciples preferred to call themselves Rishis, using the well-known term for the Hindu
sages, not Sufis. The Sufis in India also absorbed the idea of pacifism and non-violence
peculiar to Hinduism, Buddhism and Jainism. Shaikh Nuruddin believed that, although
eating meat was permitted by the Sharia, it entailed cruelty to animals, and became a
vegetarian.
xiv

In the Sufistic system an important concept is that of pir-i-muridi
which is very similar and closely analogous to the Hindu Guru-chela relationship. Orthodox
Islam does not allows for any intermediary between the creator and the created but to the
Sufi the importance of the Pir in the life of a disciple in his quest for the Ultimate Reality is
as great as that of the Guru or Acharya in the Hindu social and religious system. In fact by
the sixteenth or and the seventeenth it was very common for the majority of the practising-
Muslims in India to have a Pir, often linked with some Sufi order or the other, like the
Hindus seeking the guidance of the Guru for spiritual salvation.
xv

Arnold Nicholson was convinced that the idea of Fana (self-annihilation passing away into
the universal Being) is certainly of Indian origin, probably derived from the Buddhist
concept of Nirvana.
xvi
The German scholar Richard Hartmann opined that Sufism is
inwardly permeated with Indian theosophy. R.C. Zaehner, Spalding Professor at Oxford
University, after examining this aspect critically came to the conclusion that Sufism is
Vedanta in Muslim Dress.
xvii
He believes that some fundamental tenets of Sufism about the
Absolute or the God and the relation of individual Souls to it were possibly derived from the
ideas of Vedanta of Sankara.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 117
The Hindu mystic tradition typified by Vaishnavism also greatly influenced
Sufism. In Islam the relation between Man and God is like that of Master and Slave but in
Vaishnavism it is considered to be between the Lover and the Beloved. In Sufism the
relation between Man and God is considered to be that between Ashik and Mashuk which is
more influenced by Hinduism rather than Islam.
xviii
So we can safely say that Sufism has
undergone sea-changes. Hence Sufism is Indianism in Indian context.
A Sufi order which emerged in and around Delhi and preached the doctrine
of Wahadat-ul- Wajud was the Qadriyya order. A renowned Sufi of the order was Mulla Shah
who settled down in India in 1614-15. His most controversial work is a commentary on
Quran which he composed in 1647-8. Defining the infidel he wrote:
Oh believer! The infidel who has perceived the Reality and recognized it is a believer.
Conversely the believer who has not perceived the Reality and has not recognized it is an
infidel.
In 1639-40 both Prince Dara Shukoh and his sister Jahan Ara became the disciples of Mulla
Shah. Dara Shukoh also wrote a number of Sufi treatises. His most significant work was the
Majma-ul- Bahrayn (The Mingling of Two Oceans) in which by comparing the Islamic Sufi
concepts and terminology he proved that they were identical. Daras most important
contribution was the Persian translation of the Upanishads which he believed contained
subtle hints relating to the Wahadat-ul- Wajud doctrines.
xix

Thus, the Sufis by their simplicity, tolerance and strength of character
helped in bringing about a rapprochement between the Hindus and Muslims. They opened
the doors of their Khanqah to all irrespective of their religious beliefs, their attitude of
benevolence to all and their association with the Hindu Yogis and using Hindavi in their
conversation created an atmosphere of greater interaction between the two major
communities. The Sufis helped in creating an atmosphere in which the social and religious
life of the Muslims came to be profoundly influenced by Hinduism and marked by
interpenetration of many local manners and customs of the Hindus and the incorporation
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 118
of certain beliefs and ceremonies which were inconsistent with orthodox Islam. So great was
the assimilation that the Hidayat-ul- Mominin, a Sayyid Ahamadi treatise of the early
nineteenth century observes that in India more than in any country Islam and Kufr had
been mixed up like khichri. In fact the Islam that was practised in India and more
particularly in Bengal was so very different from orthodox Islam that Jagadish Narayan
Sarkar has called it Popular Islam
xx

However the nineteenth century saw the growth of Islamic revivalism which
sought to restore Islam to its pristine form by purging it of many deviations which had crept
in. It first began in Arabia under the leadership of Abdul Wahab and later spread to India
under the leadership of Shah Walliullah. It aimed to reject all innovations (bidat) which had
crept since the time of Prophet Muhammad. Groups such as Tariqah-i Muhammadia and
Ahl-e-Hadis considered the relationship between the pir and murid which is the essence of
Islam as sinful and against the tenets of orthodox Islam.
RELEVANCE OF SUFISM IN MODERN INDIA
Whatever might have been the origin of Sufism outside India it was profoundly
transformed in India by various influences that were operative in various spheres of life
such as religious, philosophical, intellectual, ideological and even aesthetics. So it can be
safely asserted that liberal Islam as represented by Sufism detached from the more
orthodox Islam raised a new voice in Medieval India. Islamic mysticism moulded by the
Sufis became all inclusive and herein lays its present-day relevance. In an age that perceives
growth of extremist fundamentalism in Hindu and Muslim communities, the teachings of
these Sufis are of utmost importance to maintain the liberal, multi-cultural and secular
nature of religious policy and polity to maintain unity and integrity of India. After all, the
Constitution of India is the policy choice on the part of us- the people of India- and WE, THE
PEOPLE OF INDIA, include all of us Hindus, Muslims, etc. Sufism resembles secular
mysticism of the medieval Bengal renaissance propounded by Sri Chaitanya who was perhaps
the first ever preacher of secularism much before adherence of the Occident toward
secularism during the Western renaissance. An emergent need of this turbulent hour,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 119
therefore, is introspection and action toward positing such indigenous essence of secularism
as replacement of foreign secularism in modern India. The official religious policy in so
called Secular India requires review vis-a-vis essence of the term.
REFERENCE

i
P.K. Hitti, History of the Arabs, London 1961. P.60.
ii
P.K. Hitti, Ibid. P.90.
iii
Irfan Habib, Ed, Religion in Indian History, New Delhi, 2007, p.XXV.
iv
P.N. Ojha, Aspects of Medieval Indian Society and Culture, New Delhi, 1978, p.40.
v
Jagadish Narayan Sarkar, A study of Sufism and its Syncretistic Significance in Medieval India, Indo-Iranica,
Vol.38, Nos 1&2, pp. 1-2.
vi
Tarachand, Influence of Islam on Indian Culture, Allahabad, 1976, pp. 63-64.
vii
Irfan Habib, op. Cit., p. XXVI.
viii
Al-Beruni, tr. Edward Sachau, Al-Berunis India, I, [London 1887; Delhi, 1964 (reprint)] p.55.
ix
Gorakhnaths philosophy is neither advaita (monism) nor dvaita (dualism). It is Dvaita-advaita vilakshana
vada. He accepts the Upanishadic and Vedantic view of the individual atman (self) with Absolute spirit but
does not consider the cosmic order illusory.
x
S.A.A. Rizvi, A History of Sufism in India, vol. I, (Delhi, 1978) p.143.
xi
Ibid, I, pp. 339-40.
xii
The importance of the book is illustrated by the fact that the famous Shattari saint Shaikh Md. Ghaus
retranslated it.
xiii
The dictionary was translated into Hindi by S.A.A. Rizvi, Nagri Pracharini Sabha, 1957, pp. 29-42.
xiv
S.A.A. Rizvi, op. Cit., pp. 350-1.
xv
M.W. Mirza in R.C. Majumdar (ed.) Mughal Empire.
xvi
R.A. Nicholson, Studies in Islamic Mysticism, (Cambridge, 1967).
xvii
R.C. Zaehner, Hindu and Muslim Mysticism, (London, 1960).
xviii
Jagadish Narayan Sarkar, Thoughts on Trends of Cultural Contacts in Medieval India, (Calcutta, 1984)
pp.116-163.
xix
S.A.A. Rizvi, A History of Sufism in India, Vol. II, (Delhi, 1982) pp.413-24.
xx
Jagadish Narayan Sarkar, Islam in Bengal, (Calcutta, 1972).
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 120
MOST FAVOURED NATION TREATMENT
NIDHI CHAUHAN
INTRODUCTION:
International rules on international trade in goods and services, i.e. international trade law,
constitute the core of international economic law which covers all those international rules
pertaining to economic transactions and relations, as well as, those pertaining to
governmental regulation of economic matters.
i
International trade law consists of
numerous bilateral or regional trade agreement and multilateral trade agreements. The
most important of all multilateral trade agreement is the WTO Agreement
ii
. The law of
WTO is a complex set of rules dealing with trade in goods and services and protection of
intellectual property rights. It addresses issues relating to tariffs, import quotas, customs
formalities, food safety regulations and national security measures.
iii
WTO is the centre of
the multilateral trading system which is important tool of global economic management
and development.
iv
There are certain basic rules and principles of the WTO law among
which the principles of non-discrimination hold important position.
NON-DISCRIMINATION AND MFN TREATMENT
Non Discrimination is the key concept in International Trade Law. It is one of the core
principles of WTO Law. The two most important principles of non-discrimination in the
WTO law are Most Favoured Nation (MFN) obligation
v
and National Treatment obligation
vi
.
The MFN principle is one of the oldest legal obligations in the area of international trade
law.
vii
It became common feature of many friendship, commerce and navigation treaties
during the eighteenth and nineteenth centuries.
viii
The MFN principle means that a country
must treat other countries at least as well as it treats the most favoured country.
ix
Simply
illustrated, if India imposes a 5 percent tariff on USA mobile imports, it cannot charge 10
per cent on mobile imports from China or other trading partners, but rather must give these
others the 5 percent rate as well. The result of a nation being a beneficiary of an MFN clause
is that that nation can comb all of the treaties and all of the actual treatment is more
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 121
favorable than that granted to it- in which case, the beneficiary can argue that such better
treatment is owed to it.
x

Article I of the General Agreement on Tariffs and Trade, 1994 (GATT) incorporates the
Most Favoured Nation principle. The Most Favoured Nation (MFN) principle is one of the
oldest and most important legal obligations in the area of international economic law. The
term itself may be somewhat confusing, as it has been mistakenly construed as indicating
that there is a country or countries that are the most favoured.
xi
However, the principle is
actually a straightforward non-discrimination requirement. It plays an important role in
trade negotiations. In the earliest trade negotiations, when two countries exchanged mutual
tariff concessions, there was some debate as to the circumstances under which other
countries would also benefit from the lower tariff. There were two very different approaches
taken to MFN when negotiating these tariff concessions. One view was that tariff
concessions made to one country in a particular trade agreement would apply generally to
all other countries as well. The competing view was that concessions in one agreement
would only apply to other countries if these other countries offered their own concessions in
return. The former was known as unconditional in the sense that no conditions were placed
on granting concessions to other countries. That is, recipient countries need not give
anything in return. The latter was known as conditional MFN. It was conditional in the
sense that tariff concessions were granted to other countries only on the condition that they
offered compensation in the form of their own concessions. The United States pursued a
conditional MFN policy prior to World War I, although by that time many major nations
had moved to an unconditional approach. The United States, for its part, changed to an
unconditional policy in 1923.
xii

One question that has been debated is whether any sort of MFN or economic non-
discrimination obligation independent of a treaty clause exists under customary
international law. The prevailing view of scholars is that such an obligation exists only when
a treaty clause creates it. Lacking a treaty, nations presumably have the sovereign right to
discriminate against foreign nations in economic affairs as much as they wish.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 122
The Dispute Settlement Body of WTO has time and again held that the MFN principle set
out in Article I of the GATT is a cornerstone of the GATT and one of the pillars of the
WTO trading system.
xiii
It is well recognised that MFN principle has been both central and
essential to assuring the success of a global rules based system for trade in goods.
xiv
The
principal purpose of the MFN principle under the GATT 1994 is to ensure equality of
opportunity to import from, or to export to, all WTO Members.
xv
Article I of the GATT 1994
prohibits discrimination between like products originating in, or destined for, different
countries.
xvi
The prohibition of discrimination serves as an incentive for concessions
negotiated reciprocally to be extended to all other members of WTO on a MFN basis.
xvii
The
hallmark of MFN obligation is reciprocity and non discrimination.
xviii

With regard to the MFN Treatment required, the Article I of the GATT states: any
advantage, favour, privilege or immunity granted by any Member to any product
originating in or destined for any other country shall be accorded immediately and
unconditionally to the like product originating in or destined for the territories of all other
Members.
Thus, an advantage, favour, privilege or immunity granted to products of one Member
shall be accorded immediately and unconditionally to the like product imported from
other Members or exported to other Members. That is, treatment offered to any country
xix

must be provided to Member as well. The essence of the MFN obligation is that like
products should be treated equally, irrespective of their origin.
xx

Main issues arising in relation to MFN treatment under Article I of the GATT are:
1. Whether the products concerned are like products
2. Whether any advantage, favour, privilege or immunity accorded to any country
3. Whether the advantage is granted immediately and unconditionally to all other
Members

Like Products
MFN treatment obligation under Article I of the GATT applies only between like products.
The products that are not like may be treated differently with respect to tariffs. The
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 123
dictionary meaning of like suggests that like products are products that share a number of
identical or similar characteristics.
xxi
The question of like products generally arises in MFN
cases when a government measure makes a distinction between two products, rather than
between specific countries, under which one product receives better treatment, such as
lower tariff rate.
xxii
The bulk of dispute settlement proceedings brought under Article I of
the GATT have turned on the interpretation of like products.
xxiii
If imports from two
countries are like products, then those imports are entitled to identical treatment regardless
of their country of origin.
xxiv

With regards to the concept of like products, there are three questions of interpretations
which need to be resolved: (a) Which characteristics or qualities are important in assessing
likeness; (b) To what degree or extent must products share qualities or characteristics in
order to be like products; (c) From whose perspective likeness should be judged.
xxv

In Spain - Unroasted Coffee, while examining whether various types of unroasted coffee
were like products to which the MFN treatment obligation applies, the Panel considered
the characteristics of the products, their end-use and tariff regimes of other Members.
xxvi
The
panel found that the differences put forward regarding the different types of coffee-
geographical factors, cultivation methods, processing and genetic factors- were sufficient to
allow for different tariff treatment.
xxvii
It also said that coffee in its end-use, was universally
regarded as a well-defined and single product intended for drinking. Apart from these, the
consumers tastes and habits may be considered by the WTO Panel while examining
whether products are like within the meaning of Article I of the GATT.
1. ADVANTAGE, FAVOUR, PRIVILEGE OR IMMUNITY
Any advantage, favour, privilege or immunity under the MFN treatment obligation is
concerned with respect to:
xxviii
customs duties; charges of any kind imposed on importation
or exportation
xxix
; charges of any kind in connection with importation or exportation
xxx
;
charges imposed on the international transfer of payments for imports or exports; method
of levying such duties and charges
xxxi
; all rules and formalities in connection with
importation and exportation; internal taxes or other internal charges
xxxii
; and laws,
regulations and requirements affecting internal sale, offering for sale, purchase,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 124
transportation, distribution or use of any product
xxxiii
. The MFN treatment under Article I of
the GATT requires that any advantage granted by a Member to any product from or for
another country be granted to all like products from or for all other Members.
xxxiv

In EEC Imports of Beef from Canada, the Panel examined the compatibility of EEC
regulations implementing a levy free tariff quota for high quality grain-fed beef where the
regulation made suspension of the import levy for such beef conditional on production of a
certificate of authenticity. The Panel observed that the only certifying agency authorised to
certify the meat was a United States agency which was mandated to certify only meat from
the United States. The Panel concluded that the regulation is inconsistent with the MFN
principle incorporated in GATT as it had the effect of preventing access to like products
from other origin than the United States.
xxxv


2. ADVANTAGE IS GRANTED IMMEDIATELY AND UNCONDITIONALLY
One of the other features of the MFN clause is that it provides for unconditional MFN
treatment. That is, when a member binds a tariff rate on a particular product as part of a
negotiating round, that tariff rate applies to all Members. MFN treatment obligation
requires that any advantage granted by a WTO Member to imports from any country must
be granted immediately and unconditionally to imports from all other WTO Members.
xxxvi

WTO Member, which has granted an advantage to a country, cannot make granting of that
advantage to other WTO Members conditional upon those WTO Members giving
something in return or paying for the advantage.
xxxvii
The term unconditionally does not
mean that all conditions are prohibited.
xxxviii
Unconditionally refers to the obligation that
MFN treatment towards another WTO Member shall not be conditional on reciprocal
conduct by that other Member.
xxxix

In EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain
Processed Fruits and Vegetables, the Panel examined the provision for an exemption from
the lodging of additional security associated with minimum import price for tomato
concentrates in relation to the MFN obligations. The Panel observed that Article 10 of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 125
Council Regulation
xl
amounted to conditional most-favoured-nation treatment inconsistent
with Article I:1 of the General Agreement, since it removed one of the requirements for
certain countries while leaving a burden on other countries. The Panel concluded that the
provision for an exemption from the lodging of additional security associated with the
minimum import price for tomato concentrates was not inconsistent with the MFN
obligations.
xli

The various benefits of MFN principles are that: it eliminates distortions in production
patterns allowing comparative advantage to work; it results in broader trade liberalisation; it
makes for simple and transparent custom policies; and it reduces international tensions and
thereby spreads peace and security along with trade liberalisation.
xlii
Also, it secures benefits
of bargain along with ensuring equal access to the export markets;
xliii
and it engenders free
and fair competition and protects against corruption.
xliv

IMPACT OF MFN
According to the comparative advantage theory, MFN makes it possible for countries to
import from most efficient supplier. If China can supply mobiles at a lower price than
Japan, India can increase its economic efficiency by importing mobiles from China.
However, if India applies higher tariff rates to mobiles from China than to mobiles from
Japan, India may be forced to import mobiles from Japan, even though Japan is not as
efficient a supplier. This distorts trade and reduces the welfare of India and economic
efficiency of the entire world. However, if MFN is applied between the three countries, then
India will levy its tariffs equally and therefore necessarily import mobiles from China
because it is cheaper to do so. Thus, the most efficient result is attained. This has resulted in
the improved efficiency in the World Economy. Further, MFN increases predictability in
multilateral trading system by stabilizing the free trade system and thus increases trade and
investment. The reduction in cost of maintaining the Multilateral Trading System is
another implication of MFN.
xlv

CONCLUSION
MFN has been a central pillar of trade policy for centuries. Article I of GATT has
established the bench mark of a very broadly worded unconditional MFN obligation with
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 126
respect to trade in goods. MFN principle plays an important role in other areas of WTO
rules as well. Two important principles of non-discrimination are included in GATT and
most international trade policies. The first is that of the MFN principle, expressed in Article
I of GATT and in a number of bilateral and other treaties. Despite some confusion over the
phrase most favoured-which seems to imply an especially favourable treatment- the
concept is one of equal treatment, but to other party which is most favoured. In the GATT
the MFN obligation calls for each contracting party to grant to every other contracting
party the most favourable treatment that it grants to any country with respect to imports
and exports of products.
xlvi
Both the GATS and the TRIPS Agreement, two of the major new
areas of regulation developed during the Uruguay Round, contain an MFN provision.
xlvii

Also, MFN plays important role in many other agreements.
xlviii
Overall, it can be said that
the MFN principle plays a significant role under the WTO Law.
It is important to note that the MFN treatment obligation under WTO law is not absolute
and is subject to various exceptions. In spite of many exceptions and deviations from MFN
treatment obligation, the MFN treatment obligation is one of the most important rules in
WTO law.
xlix
Without this rule the multilateral trading system could and would not exist.
l

REFERENCE

i
Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2
nd
Edition, Cambridge University Press,
Cambridge, p.36
ii
Marrakesh Agreement Establishing the World Trade Organization
iii
Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2
nd
Edition, Cambridge University Press,
Cambridge, p. 37
iv
P.Sutherland et al, Challenges Facing the WTO and Policies to Address Global Governance, United Nations
University Press, 2001, p. 81
v
Prohibits a country from discriminating between other countries
vi
Prohibits a country from discriminating against other countries
vii
MFN treatment clauses can be traced back to the twelfth century
viii
United Nations Conference On Trade And Development: Most-Favoured-Nation Treatment,
UNCTAD/DIAE/IA/2010/1
ix
Simon Lester et al, World Trade Law, 2010, 1
st
Indian Reprint, Universal Law Publishing Co., Delhi, p. 322
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 127

x
See, John H. Jackson, World Trade and the Law of GATT, p. 225
xi
In US domestic law, the term has now been officially replaced by normal trade relations in order to clarify
the policy behind it. See, eg, US Bill, S. 747, To amend trade laws and related provisions to clarify the
designation of normal trade relations
xii
See The Most Favoured Nation Provision, Executive Branch GATT study, No. 9, 93
rd
Cong., 2
nd
Sess. 1974, I
xiii
Appellate Body Report, EC Tariff Preferences, para. 101
xiv
Id.
xv
Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2
nd
Edition, Cambridge University Press,
Cambridge, p. 324
xvi
Appellate Body Report, Canada Autos, para. 84
xvii
Id.
xviii
Kevin C. Kennedy, International Trade Regulation, 2009, Wolters Kluwer Law & Business, Aspen
Publishers, New York, p. 89
xix
Irrespective of the fact that the country is Member of WTO
xx
Appellate Body Report, EC Bananas, para. 190
xxi
Appellate Body Report, EC Asbestos, para. 91
xxii
The issue of like product is merely a formality in cases where the products are agreed to be the same in
various Members, and the real issue is whether the advantage, etc had been accorded to all members.
xxiii
Kevin C. Kennedy, International Trade Regulation, 2009, Wolters Kluwer Law & Business, Aspen
Publishers, New York, p. 91
xxiv
Id.
xxv
Id., para. 92
xxvi
GATT Panel Report, Spain Unroasted Coffee, para. 4
xxvii
Id.
xxviii
Article I of the GATT
xxix
eg., import surcharges or consular taxes
xxx
eg., customs fee or quality inspection fees
xxxi
eg., method of assessing base value on which the duty or charge is levied
xxxii
Referred to in Article III:2 of the GATT
xxxiii
Referred to in Article III:4 of the GATT
xxxiv
Appellate Body Report, Canada Autos, para.79
xxxv
GATT Panel Report, EEC Imports of Beef from Canada, para.4
xxxvi
Also, any advantage granted by a WTO Member to exports to any country must be accorded immediately
and unconditionally to exports to all other WTO Members.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 128

xxxvii
Working Party Report on the Accession of Hungary, L/3889, adopted on 30 July 1973, BISD 20S/34, para.
12
xxxviii
Panel Report, Canada Autos, para. 10
xxxix
Id.
xl
Council Regulation (EEC) No. 516/77: Article 10 lodging of such additional security shall not be required
for products originating in non-member countries which undertake, and are in a position, to guarantee that
the price on import into the Community shall be not less than the minimum price for the product in question,
and that all deflection of trade will be avoided.
xli
GATT Panel Report, EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain
Processed Fruits and Vegetables, para. 4
xlii
Simon Lester et al, World Trade Law, 2010, 1
st
Indian Reprint, Universal Law Publishing Co., Delhi, p. 324
xliii
Raj Bhala, International Trade Law: Theory and Practice, 2001, 2
nd
Edition, Lexis Publishing
xliv
A.K.Koul, Guide to the WTO and GATT, 2012, 3
rd
Edition, Satyam Law International, Delhi, p. 83
xlv
MFN enables WTO Members to reduce their monitoring and negotiation cost for disadvantageous
treatment. Also, it reduces cost of determining an imports origin, thereby increasing economic efficiency.
xlvi
John H. Jackson, The World Trading System- Law and policy of International Economic Relations, 2
nd

Edn.,Satyam Books, New Delhi, 2012, p. 156
xlvii
Simon Lester et al, World Trade Law, 2010, 1
st
Indian Reprint, Universal Law Publishing Co., Delhi, p. 338
xlviii
Id.
xlix
Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2
nd
Edition, Cambridge University Press,
Cambridge, p. 38
l
Id.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 129
PERILS OF A FRAGILE PLANET: SHIFTING
PARADIGMS AND SENSITIVE POSSIBILITIES
TAPAN R. MOHANTY
Global environmental issues are a growing concern among the people and communities of
various regions today. As it is the changing ecological base which will ultimately affect
them as they seek to exploit the available resources in order to raise their standard of living.
The challenge is not so much that of improving the quality of life of the population at the
cost of their standard of their living - a dilemma faced in particular by the developed
countries - but rather to improve the standard of living in an environmentally sustainable
manner. This involves recognition of the fact that alternation in the human and natural
environment are underlining factors in the development process so that the topic of the
environment cannot be absent from the minds of those who are responsible for guiding that
process.
The rational arrangement of the natural resources is a necessary precondition for
achieving economic growth and sustainable improvements in the standard of living of the
populace. The natural capital is of fundamental importance in achieving changing
production patterns with equity. The nation has entered upon a stage in which the existing
resources will soon threaten the process of development. India now is on the threshold of a
number of environmental problems, which, if not solved, will adversely affect the
productive capacity of the economy. India as an agrarian country producing agricultural
goods heavily depends on the management of natural resources such as soil, water,
vegetation and the climate. These elements are already beginning to suffer from
considerable strains, which are having a negative effect on the quality and quantity of
agricultural products. The relation between growth, equity and environmental sustainability
are extremely complex. On the one hand, the transformation of natural resources into
goods is essential for growth and the raising of living standards. Thus, for example, the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 130
expansion of the water supply is what makes it possible for growth of human settlements.
On the other hand, however, there is the danger of development processes affecting the
quality of the environment. For example, air and water pollution due to industrialization
and concomitant social and economic change reduces the capacity of ecosystems to provide
the community with vital goods and services. The theory of sustainable development deals
with these issues and consequent changing of priorities at length.
Most observers would agree on many of the symptoms of malaise in the world and
unanimously believe that these have not appeared overnight, but have been accumulated
over decades. Unemployment, poverty, alienation and self-abuse of many a varieties form
the beginning the possible list of symptoms, symptoms that have lead many people argue
that a fundamental change in our ways of life is long overdue.
The present ways of life are indeed liable to change in near future. The problems in
many cases are routed in our faulty socio-economic practices and in some cases change is
promoted to make life more healthy and fulfilling. Advancement of new technologies has
ensured the reshaping work and leisure particularly in developed countries. These are in
industrial societies, while the Third World proved to be a victim of economic
colonization by the erstwhile colonial powers to perpetuate their imperialist designs. This
realization has accelerated a process of global transformation.
The reason of this change may be attributed to affluence of developed and
continuity poverty for the underdeveloped. The study here focuses on the perspective of
the Third World. The model of development, which focuses on economic growth, has failed
on account of redistribution. Increase of poverty, continuity of hunger, lack of housing and
sanitary facilities compelled the third world nations to look for an alternative beyond the
paradigm of development.
GREY AREAS IN CONVENTIONAL DEVELOPMENT PARADIGMS
The 1970s became the decade, which increasingly questioned the assumption that
growth and industrialization would solve the problems of poverty and want. During that
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 131
decade, focus was on the needs of the population in general and the need of the poorest in
particular. To quote Robert McNamara, the task, then for the government of the
developing nations is to reorient their development policies in order to attack directly the
personal property of the most deprived 40 percent of their population. This government can
do without abandoning their goals of vigorous overall economic growth. But they must be
prepared to give greater priority to established growth targets in terms of essential human
needs: in terms of housing, nutrition, health and employment.
i
.The analysis and report
of international labour organization (ILO) and World Bank (WB) gave particular dimension
to development by emphasizing redistribution with growth. In this background Mahabub
Ul Haq had written 1976 that there are several areas of agreement in the debate o
development strategies. He summarizes the arguments as follows:
First it is generally accepted by now that market mechanisms are neither efficient
nor reliable instruments for allocating resources when the income distribution is very
distorted A related area of agreement is the realization that the institutional reforms are
often more decisive for a developing country than marginal changes in the price system.
There is no longer a blind faith in price corrections achieving a multiplicity of objectives
Second there is an increasing realization that economic growth does not filter down
automatically to the mass except in the modern sector in a very high rate of G.N.P growth
Third, most developing societies realizes by now that they cannot emulate the
consumption style of the rich nations.thus, there is greater interest in the concept of basic
human needs and in fashioning development strategies which are need oriented, rather
than market demand oriented.
Fourth there is also an agreement that the economic condition of the poorest sections
cannot be improved simply by distributing some purchasing power to them through short-
lived welfare schemes. Any long-term improvement requiresfundamental institutional
reform.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 132
Fifth there is also a widespread realization that development strategies should be
shaped by domestic needs and not by export or foreign assistance requirements.
These general agreements on development reflect the bottlenecks in the contemporary
development strategies. However, the most stringent criticism against development is its
complete ignorance of two important dimensions namely, culture and environment.
Development has analytically a wider frame of reference if it is understood within
the design of the culture concept. The culture concept unites more and provides multi
dimensionally to the notion of development because it encapsulates history and socio-
economic parameters of life. Culture sums up the human creation, as generally
transformed altered phenomenon. An evolutionary and revolutionary process of change,
influence both by internal and external conditions. It appropriates conceptually both
material and non-material spheres of social production, and summarizes the totality of the
material representations of human creativity, while vesting permanence and continuity to
the institutional forms of social life defined by language, religion, mores and customary
practices. Thus cultures provide men with their intellectual bearings in the production and
reproduction of social life. Few concepts have the universality of culture concept. In the
vastness of the catchment area, it affords a good measure of the idea of development. To
which it defines as the enrichment of material base of culture. The evolution and material
base of culture as well as transformation is exercised developmentally and validated by
extent to which development options offer greater and more effective control and means of
control over the material or natural environment.
ii

Even if the culture is conceived in a narrower and often more colloquial sense, it is
difficult to rationalize development in economic and infrastructural dimensions without
such development being evidenced in area of collective social life and usage such as music,
literature and dance which are crucial to flowering of the above areas to draw on the
interest of the wider society.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 133
Mohapatra (1994) argues that in the age of rapid economic growth and technological
advancement culture has taken a back seat and constraint to make adjustment. This path of
adjustment has taken all leanings and curves resulting dilution, distortion and death of
cultural forms.
iii

Dove (1998) also echoes the same sentiment in his studies of Indonesian society.
According to him traditional cultures and life styles are regarded as clear signs of under
development and as formidable obstacles to the necessary socio-economic advancement.
iv

The dimension of gender is too neglected in the paradigm of development. Female
subordination of all interpersonal relations is deeply ingrained in the consciousness of both
sexes. This creates a fissure among the units of society and the recent movements like eco-
feminism is the logical outcome of genuine outburst against a repressive social order.
Another important aspect, which has been bypassed in the drive to development, is
the shabby treatment meted out to nature in general and environment in particular. In the
name of industrialization forests were destroyed, mining and quarrying went unabated
causing enormous damage to mountains and springs, toxic and harmful effluents were
drained to the water bodies without giving a second thought. Huge dams and massive
reservoirs were constructed in order to tame the rivers and generate hydroelectric power.
This has not only altered the ecological balance of the area but also changed the socio-
economic bases of the population besides causing large-scale displacement. The design of
development has created major problems not only in terms of environmental degradation
but also in terms of human suffering.
This has in fact give rise to the quest of searching for an alternative design of
development, which will not only improve the standard of living and life chances but also
arrests the by-products of contemporary development strategy. Then comes the question of
alternatives, its meaning and importance. The alternative is something new and better,
both in the qualitative and quantitative aspect, then the preceding and existing conditions
and state of affairs.
v

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 134
The alternative to development was not an accident but the product of continues
search for a strategy that will harmoniously combine nature and culture. The capitalist and
socialist developmental models are designed to perpetuate inequality and imperialism in
the grab of an ideology and their threat to nature is menacing. This was in fact a late
realization on the part of the victim the third world country. The failure of various models
of development in fulfilling the objectives has only hastened the process pf searching an
alternative. Present slogan for sustainable development is in fact a reaction against the
existing models of development and deeply routed in an environmental awareness.
Mans use and reuse of environmental resources has not only confined to food,
shelter and clothing as the basic needs of life, but also goes much beyond to it. The present
form of use of nature can be defined in terms of exploitation plunder. Today there is hardly
any pocket of land, island, polar region or space left virgin from the scars of human
interference in a bid to realize and translate mans aspirations and dreams into reality.
Realizing the imminent danger of ignoring the environmental issues there has been
some kind of new awakening and the new world order addressed itself to protect the
environmental cause. How best one can maintain, upgrade and improve the environment
with judicious utilization of the natural treasure is a million dollar question. There has been
a plethora of environmental issues need to be debated and focused. Environmental issue
needs to be debated and focused. Environmental issues is not lies in technical and scientific
arena but enmeshed with social, economic and political fabric besides in the ethos of
humanity.
It was only in the early seventies that the world made an extraordinary rapid
transition in terms of social awareness from capitalist economy to environmental concern
particularly, the mutilation of natural resources and subsequent ecological imbalances.
Administration, monitoring, abatement and maintenance of environment is linked with
certain decision of political nature and legal sanctions. Here exists an urgency to examine
ecological improvements and maintenance in the context of local condition and native
population. It was this awareness on conservation of nature that led to the Stockholm
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 135
conference in 1972, which not only recognised the crisis that environment was facing but
also emphasized that solving these problem is a political issue and could not be left to the
hands of a few environmentalist alone.
The effect of the conference is evident today with the change in the attitude and
perception of third world countries towards environmental problems in these nations went
unnoticed, uncared and unemphasised. Issues relating to environment were then considered
as the domain of the industrialized world.
The catastrophe of Bhopal in 1984 and followed by Chernobyl in 1986 provided a
glimpse of the destructive potential of global environmental hazards. Six years later at Rio
de Janerio in 1992 the earth summit presented a programme for action to avert global
environmental disaster based on the underlying principle of sustainable development.
There has been the ending of the of the cold war, the brake up of the former soviet empire,
the war in the Gulf, which along with the emergence of new-nation states provides an
unique opportunity to give a fresh look at the immediate environmental problem. The
uneasy stability of super powers has been replaced by an increasingly unpredictable world
bur it certainly has delayed the imminent nuclear threat and opened up the possibility of
diverting resources towards more humane concerns than in the horse race of global
domination.
In the advanced western countries public interest in the environment is mounting. In
Eastern Europe and former USSR the emerging evidence of grossly degraded and polluted
areas underlined the urgency of the problem. In the developing countries problem of
deforestation, desertification and resource depletion was also attracting grater attention.
And the long term but apparently inevitable threats of global warming and ozone depletion
also underline the global interest in environmental protection. At regional, national and
global level environmental policy has achieved a higher priority and underwent vigorous
development, the leitmotif of the Bruntland report in 1987, has become the accepted goal of
policy at Rio five years later.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 136
It soon became clear that optimism must necessarily be qualified. Interests in the
environment, though sustained, were not always translated into action in the face of more
immediate and pressing economic concerns. The crumbling of Soviet empire, persistence of
poverty in the 5third world and the growing recession in the west emphasized the
competing priorities and inherent conflicts in development theory. The eponymous process
of balkanization in areas such as former Yugoslavia threatened to entangle countries in a
serious regional conflict. As the Gulf war has shown. Such conflicts could do serious harm
to sensitive eco-system.
vi
Overall was the threat of nuclear proliferation, more alarming as
the Soviet nuclear complex was dispersed and which, if not restrained, would pose a far
more dangerous threat to world survival than 5the more published global warming.
However some steps has been taken in order to check global pollution i.e. the international
agreements in the Vienna, Montreal and London in 1985, 1987 and 1990 respectively. These
achievements have led to the banning of Chlorofluorocarbons (CFCs) to protect the ozone
layer and various other agreements designed to restrict the trade in hazardous waste (Basel
convention-1989, Bamko convention-1991 and related environment commission directives).
This process of global negotiations and agreements on environmental problems
culminated at Rio summit which saw the adoption of 27 principles constituting a
declaration on environment and development, the first of which was human beings are at
the center of concerns for sustainable development. Over 150 nations signed a framework
convention on climate change to tackle the problem of global warming and also a
convention on biological diversity. By consensus the summit endorsed agenda 21, an 800-
page action programme of follow-up (United Nations). Although the summit had been
proceeded by conflict especially between North and South over the responsibility and
resources Rio produced a number of positive features. It was a process engaging more
governments than even before and the participation of 6,500 non-governmental
organizations and 15,000 participants at their global forum. The involvement of NGOs had
begun at the Bergen conference on sustainable development in 1990. Despite, the failure to
reach agreements on certain issues, notably forests, and USAs reluctance to enter into
binding targets or to sign Bio diversity Convention, Rio was a global endeavor at
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 137
cooperation in the interest of mutual security. It defined the new international values of
equity and environment, linked them inseparably, and dramatized how powerfully they
affect North-South relations.
vii
Rio should also be seen as stage in a sustain process of
developing policy and securing implementation.
Sustainable development has now passed a threshold of public and political concern
that makes it fully and permanently established as an issue of high priority on the national
and international policy making agenda. Although the environment is on the agenda,
environmental policy making is fraught with uncertainty and conflict, particularly between
North and South.
Sustainable development is the acknowledged subject of most recent development
thinking but little headway appears to have made in terms of a rigorous definition of the
concept. Therefore, not surprisingly, efforts to operationalize sustainable development and
to show how it can be integrated into practical decision-making have been few and
generally unpersuasive. The use of the term development rather than economic growth
implies acceptance of the limitations of the indexes such as Gross National Product (GNP)
to measure the well being of nations. Instead development embraces wider concerns such as
the quality of life, educational attainment, nutritional status, and access to basic freedom
and spiritual welfare.
viii

The emphasis on sustainability suggests that what is needed is a policy effort aimed
at making these developmental achievements last well into the future. According to
Winepenny, sustainable development is that which leaves our total patrimony, including
natural environment assets, intact over a particular over a particular period. We should be
able to bequeath to future generations at the same capital, embodying opportunities for
potential welfare, that we currently enjoy.
ix

Perhaps Repetto gives the best definition of sustainable development. For him
sustainable development is a development strategy that manages all assets, natural
resources, and human resources, as well as financial and physical assets, for increasing long
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 138
term wealth and well-being. Sustainable development as a goal rejects policies and practices
that support current living standards by depleting the productive base, including natural
resources and leaves future generations with poorer prospects and greater risks than our
own.
The analysis of this definition depicts that sustainability appears to be accepted as the
mediating term designed to bridge the gulf between developers and environmentalists. Its
beguiling simplicity and apparently self-evident meaning have obscured its inherent
ambiguity. It survival attests to the fact that developmental interests now recognize that
much more serious attention must be paid to incorporating although understanding of
environmental process into project investment calculus, it for no other reason than that
failure to do so, any result in environmental side-effects that carry economic losses.
The notion of sustainability appears most conveniently to the replenishable use of
renewable resources. The aim is to benefit from the advantage provided by such resources
to the point where the rate of take equals to the rate of renewal, restoration and
replenishment. So in agriculture the farmer derives fertility from soil equal to the ability of
the soil to supply nutrition. Similarly, the woodsman removes trees or the products at a rate
equal to the regeneration. The fisherman catches marine resources in amounts that are
equivalent to their refurbishment. This begs the question of whether inherent rates of renew
ability can be enhanced through scientific management.
The relation between growth, equity and environmental sustainability are extremely
complex. On the one hand, the transformation of natural resources into goods is essential
for growth and rising of living standards. Thus, for example, the expansion of the water
supply is what makes it possible for growth of human settlements. On the other hand,
however, economic development process affects the quality of the environment. For
example, air and water pollution, which reduces the capacity of ecosystems to provide the
community with vital goods and services.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 139
Though the paradigm of sustainable development is riddled with contradictions and
conflicts at the conceptual as well as operational level, the much-propagated conflict
between economic development and environmental concerns seem to be less in the light of
socio-ecological attributes like awareness and attitudes. These characteristics are more
crucial in the context of agricultural sustainability in India which s known for its inter and
intra regional and cultural variation. Lack of comprehensive or integral understanding of
these aspects both at the conceptual and operational levels make the question of
agricultural sustainability ambiguous. In this context Reddy in an article argues that the
models of sustainable development (i.e. agricultural) which focus on the people as their
primary concern, should not stop at providing them with livelihood alone. The problems of
environment and sustainable agriculture are not limited to fragile resource regions or poor
regions though the nature and degree of problems may vary between agriculturally
developed and backward regions. Unless peoples awareness, attitude and perceptions
towards environment are changed, sustainable agricultural practices as conceived in the
present form appear to be a distant dream. The factors that could change people perception
are literacy, market forces, technologies and institutional changes. Therefore, to
recapitulate, human resource development should occupy the centre stage in the over-all
developmental planning in order to achieve the objective of sustainable agricultural
development. And this should be fostered by state powers by integrating environmental
concerns with markets and promoting efforts towards developing appropriate technologies
which are sustainable economically as well as environmentally and removing interferences
in agrarian structure i.e. land labour and capital markets.
The policies of globalisation and liberalization have ushered new changes in Indian
society particularly economic and environmental dimension, through the structural
adjustment programme. Structural adjustment program is an implicit acknowledge of
unsustainable growth policy of 1980s, if not in ecological terms but certainly in terms of
fiscal and foreign exchange. However, an alternative was offered to structural adjustment
programme known as needs oriented Economic and Ecological Development. Mohan Rao in
an article has vigorously defended NEED. According to him, the growth strategy currently
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 140
in place is built on faith in trickle down and what may be termed long-run Malthusian
optimism. It does little to address the problem of transition and sustainable economy. While
the prospect of accelerated growth under the strategy is, to say the least, uncertain, it is all
but certain that both inequality and environmental degradation will concern over the years.
Major policy thrusts and institutional restructuring under NEED are designed to promote
equitable outcome and to exploit complimentarily between income gains, employment
growth and environment refurbishment. In the medium terms, equitable growth is green
growth; this only enables us to a faster and less uncertain transition to a sustainable
economy.
x

The threat to environment and ecology due to population, poverty, pollution and
indiscriminate industrialization is a hard reality in India. People have begun to realize the
dangers to ecosystem inherent in the development design India has chosen at the behest of
capitalist forces. Alternative to this kind of development has come as a blessing to fill the
gap. There have been some fundamental problems endemic to sustainable development
like transfer of environmental technology; the need for social policy etc. and India has to
decide its future in a development policy, which will encapsulate equity, equality and
excellence. The sooner we will find the alternative is better for the nation as well as for the
world.
xi
Sustainable development as a goal rejects policies and practices that support current
living standards by depleting the productive base, including natural resources and leaves
future
xii
generations with poorer prospects and greater risks than our own."
The analysis of these definitions depicts that sustainability appears to be accepted as
the mediating term designed to bridge the gulf between 'developers' and 'environmentalists'.
Its beguiling simplicity and apparently self-evident meaning have obscured its inherent
ambiguity. Its survival attests to the fact that developmental interests now recognize that
much more serious attention must be paid to incorporating a thorough understanding of
environmental process into project investment calculus, if for no other reason than that
failure to do so, may result in environmental side-effects that carry economic losses. The
notion of sustainability appears most conveniently to the replenishable use of renewable
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 141
resources. The aim is to benefit from the advantages provided by such resources to the
point where the rate of 'take' equals to the rate of renewal, restoration or replenishment. So
in agriculture the farmer derives fertility from soil equal to the ability of the soil to supply
nutrition. Similarly, the woodsman removes trees or the products at a rate equal to the
regeneration.
xiii
The fisherman catches marine resources in amounts that are equivalent to
their refurbishment. This begs the question of whether inherent rates of renewability can
be enhanced through scientific management.

PRINCIPLES OF SCIENTIFIC MANAGEMENT
1. Knowability: the amount, rate and other characteristics of renewability are
knowable and calculable.
2. Homeostasis: renewable resource systems operate broadly around equilibrium or
can be manipulated to approximate following human intervention. Homeostasis is a
preferential state of nature.
3. Internal bioethics: the act of thinking upon a renewable resource even below some
threshold has implications only for the tightly confined eco-systems that is the resource.
4. External bioethics: utilizing a renewable resource up to the point of sustainable yield
is morally justifiable even though that resource, below in threshold of optimal 'take', may
have other ecological values and function. Sustainable growth is primarily a technical
concept, bounded by formalistic rules of efficiency and administration. Sustainability is a
much broader phenomenon embracing ethical norms pertaining to the survival of living
matter, to the rights of future generation and to institutions responsible for ensuring that
such rights are fully taken into account while formulating polices and actions. The first two
of the four premises of sustainability outlined above, are pertaining to renewability and
homeostasis, apply to the concept of sustainable utilization. The later two, which embrace a
more bioethical perspective with implications for a great variety of rights and obligations,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 142
impinge more directly on the notion of sustainability. Sustainable utilization is a prior
condition for sustainability, but not a sufficient one. The analysis which follows assert that
sustainable utilization is manageable and politically acceptable because it is safely
ambiguous. Sustainability on the other hand, is politically treacherous since it challenges
the status quo. Paradoxically, the objectives of sustainable utilization can not be met
without incorporating the principles of sustainability hence the confusion of
misunderstanding that has grown up around the sustainability debate should be removed.
It was the Brundtland Commission's publication "Our Common Future" in 1987 that
really put the concept of sustainable development on the international agenda and
highlighted its applicability to the environmental problems in the developing world. The
report recognizes that in most developing countries there is a greater dependence on
natural resources and environment as an input of production and economic growth.
Essentially, development and the environment are complementary, it is not economic
growth per se that is to be rejected but there is a need to search for alternative development
strategies and technologies based on sustaining and expanding the environmental resource
base in the word of the Brundtland Commission.
There has been a growing realization among national governments and multilateral
institutions that it is impossible to separate economic development issues from
environmental issues; many forms of development erode the environmental resources upon
which they must be based, and environmental degradation can undermine economic
development (WCED, 1987, p. 3).
The report reflects the importance of economic efficiency in achieving the goals of
sustainable development but also stresses that the benefits of development must be
distributed equitably. Social equity both within and across generations is a fundamental goal
and prerequisite to achieve sustainable development. In this context poverty is seen as a
major cause and effect of global environmental problems and attempts to deal with
environmental problems will be thwarted unless a broader perspective that encompasses the
factors underlying world poverty and international inequality is adopted. Brundtland
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 143
Commission perceived sustainable development as a strategy to ensure that (development)
meets the needs of the present without compromising the ability of future generations to
meet their needs" (WCED, 1987, p. 8).
Markandya has written extensively on the topic of sustainable development. In a
paper titled as "Criteria for sustainable agricultural development", he suggests a set of
working rules on targets covering equity, resilience and efficiency as a first step in making
the concept operational in the agricultural sector. In working towards these sustainability
targets, three broad areas of action are identified - those of valuation, regulation and
monitoring.
Another area is environmental monitoring which is also fundamental to the pursuit
of policy of sustainable development. Markandya and others stress the need to develop a set
of sustainability indicators that can be used to evaluate performance. However in broad
terms the objectives and premises of sustainable development can be summarized in
following points.

1. Survival of human beings.
2. Survival of all other life forms.
3. Satisfaction of basic human needs.
4. Maintenance of biophysical productivity.
5. Economic efficiency and Growth.
6. Preservation of environmental quality and ecosystem.
7. Inter and intra generational equity.
8. Social Justice.
9. Self-reliance and people's participation.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 144
10. Stabilization of human population.
11. Promotion of values and ethics.
The emergence of sustainable development in the discourse of development has
raised wide-ranging debate on the issues of environment equity and redistribution of natural
resources. The result is a growing realization about
Excessive stresses on biophysical environment for short-term gain is ultimately counter
productive, so there is a limit to which productivity can be raised.
Human survival can only be assured by preserving the basic resource base.
3. Even the renewable resources are not perpetual unless prudent management praxis is
followed.
4. Conventional economics does not necessarily indicate the actual status of resource
utilization.
Social justice and equality are prime objectives of any form of development. Quite
naturally they are encapsulated in the premise of sustainable development. Sustainable
development at the central level can be assumed as a process to maximize three goals -
Biophysical, economic and social. From another angle sustainable development can be
depicted as a process of development that operates within a framework confined by the
Biophysical, economic, and social coordinates. To operate within such condition, it is
essential to resort to a process of trade-off, primarily to recognize that there are certain
limits within which development has to be functional. These limits can be broadly
identified as Biophysical and Ethico-social limits. The biophysical limit, which actually
controls the resource availability, resources use and economic viability is due to (i) finitudes,
(ii) entropy, and (iii) complex ecological interdependence (iii) and (iv) resilience-self
ameliorating capacity.
The Ethico - social limit has more to do with the philosophical back drop of a society
including its legal, executive and policy making authorities. Bio- physical conditions differ
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 145
regionally as well as locally hence it requires utmost attention in adopting management
practices. Another point to note is that, although when the biophysical limit is exceeded
then it can be detected from the degraded conditions of land, information is quite
inadequate to anticipate the triggering of degradation. This is one of the serious problems
in natural resource management.
On the one hand, intervention leads to determination on the other hand intervention
is required because the local productivity is perceptibly low to support today's population.
Thus the new development strategy should be sustained amidst various pressures and the
resource management has to be viewed in its totality considering all the available uses and
focusing not on the sustainability of any individual project on sector but on the entire
production system. Analysts and planners have become increasingly concerned about the
futility of maximization of growth rate in ensuring economic equity and social justice.
Growth with justice also can constitute the necessary and sufficient conditions for the
fulfilment of the basic needs of the poor. Therefore, growth-oriented development planning
needs to be replaced by planning for sustainable development. Recent ecological critiques
of development have focused on the impact of development in degrading eco-systems, and
degrading consequently in poverty and deprivation. Because the poor in developing
countries have to depend directly on natural resources like land, water, forest products and
marine life, any exploitation and commercialisation of these resources tend to threaten the
very survival of the poor. This is more so in countries with have predominantly agrarian
social structure. In this context, the basic need approaches of sustainable development open
new vistas to social life.
As science and technology go on enlarging the space for human creativity,
simultaneously, nature and ecology impose restrictions on the extent to which this
creativity could be purposefully utilized to satisfy human desires without jeopardizing their
own future. Since consumption standards and perceptions of 'better life' are culturally
defined, 'sustainable development' then becomes an ideological construct in the sense-that it
requires promotion of values that either encourage or discourage kinds of needs within the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 146
bounds of ecological possibilities. Some staunch Marxist economists may believe that the
socio-cultural systems are themselves propelled by a set of forces that have their origins in
prices and markets and in other institutions such as the State. In other words, such an
epiphenomenal view could tend to treat culturally defined uses of ecological resources as
basically anchored in political economy. "But sustainability or unsustainability of
development process is essentially a consequence of the interaction between socio-economic
systems and ecological systems. Both are co- evolutionary systems which suggest not only
that they reinforce each other but also that each encounter constraints and impasses that
originate in the other." The notion of sustainable development suggests that the process of
production that functions within a given ecological system must determine the optimum
level at which we should operate.
Some scholars optimistically argue-that ecosystem is autonomous and its residence
provides a safety margin, so that it has capacity to withstand and absorb crisis resulting from
imbalances. Certain modes of environmental management do suggest that every ecosystem
has a certain waste accumulative capacity. Only when the accumulation of effluence goes
beyond this limit then it tends to erode ecological balance. However, just because a certain
type of production or industrial material pollutes the environment that does not render the
entire development process 'unsustainable'. The operational concept of "Sustainable
Development" would therefore, differ in a synchronic and in a diachronic context. In the
short run, it refers to the balance between ecosystem and production system that exploits it
at given point of time. In the long run, it is just to be achieved by a given society where its
production process sustains the needs of present without jeopardizing the future.
Resources of the eco-system are both renewable and non-renewable. And, water,
forests, fish stocks, etc., are renewable and do not get depleted by their exploitation provided
it is within certain limits. The rate at which these resources are replenished periodically is
the limiting factor. The non-renewable resources include fossil fuels and minerals. Their
indiscrete and wanton exploitation by the present generation can lead to depletion of
resources that are not easily sustainable. The coal and fuel crisis in Europe some centuries
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 147
ago is a pointer to the critical dangers inherent in indiscriminate exploitation of non-
renewable resources of the eco-system. Sustainable development then is a process in which
an equilibrium is maintained between utilization of natural resources and environment, the
direction of investment in technological development and institutional change should be in
harmony with one another in a bid to enhance the present as well as the
14
as well as future
capabilities of human societies to meet their needs and aspirations as well as to enhance
their quality of life.
The successful operation of sustainable development depends upon interdependent
principles aimed at meeting human needs, maintaining ecological integrity, attaining social
self-determination and establishing social equality. Conventional interpretations of
development either pay too little attention to equality consideration or else assume
inequalities will be explained through economic growth on a scale that would threaten
global ecological integrity and jeopardize future generations. Sustainable development
depends upon a better understanding and satisfaction of non-material human needs in the
developed nations and a reorientation of social and economic policy. Human needs can be
divided into material and non-material needs. Material on basic needs include physical
necessities of life such as adequate food, water and shelter. One of the primary goals of
sustainable development is to raise the standard of
15
living of the world's poor to a level
where these basic needs are meet. Non-material needs include "quality of life" requirements
such as health, political and spiritual freedom, human rights, clean, healthy and accessible
natural environments and meaningful work. These needs also include our needs for
personal development and self-fulfilment. Maintaining ecological integrity can also be
divided into two parts. One is characterized by principles of consumption, stewardship and
appropriate land uses and is pertinent to all interpretation of sustainable development. The
second, reducing the inequitable consumption of energy and materials by the industrial
houses is somehow downplayed in conventional interpretation of sustainable development
and must be considered an integral part of sustainable development.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 148
Social Self-Determination rests on certain prerequisites, not the least of which is place.
Militarism and over consumption by the affluent section of the society causes massive
destruction both to natural resources and to the ability of many of the world's people to
achieve self-governance. Place and equity require community self-reliance, in both
developed and underdeveloped communities. Other important elements of social self-
determination include people's participation in decision-making, human scale communities,
participatory governance-decentralized management, grass root activity and cultural
integrity.
Equity means both future equity and current equity. Proponents of conventional
sustainable development have embraced intergenerational equity in principle; it depends
largely on maintaining ecological integrity. Sustainable development gives close attention
to issues of current inequalities which in turn requires not only maintaining ecological
integrity but also meeting the entire range of human needs and achieving self-
determination. Steady state economy defined as an economy in which the total population
and the total stock of wealth are maintained at constant at some desired levels by a minimal
rate of maintenance throughout. The need for a steady economy is based on the fact that
the resources are finite. The human economy is a subsystem of the steady state ecosystem.
Therefore at some level, over some time period, the subsystem must become a steady state.
SUSTAINABLE DEVELOPMENT IN INDIA
Indias tryst with destiny is fraught with plethora of challenges and innumerable
complexities. Its history, culture and polity reflect a wide range of diversity and multiplicity
quite unparalleled in human civilizations. It is this ubiquity of uniqueness that has brought
the nation into a perpetual process of realignment and assimilation. In the event of the
approaching millennium and subsequent change in global order in the form of
globalization, rise of international terrorism, unbridled consumerism, climatic change and
emergence of unipolar world order, Indias challenge has gone manifold. The dilemma is
more pronounced in the economic and social front particularly in its effort to achieve social
harmony and the need to ensure sustainable management of natural resources and the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 149
environment. The difficulty in attaining social harmony in the face of multiculturalism and
a predominance of pluralist worldviews has been encapsulated in the historicity of its
tradition. The second, however, has gradually been incorporated into the core of the
development debate in recent years.
Indias quest for economic growth, scientific achievement and social development
has been aptly reflected in the Nehruvian policy of post-independent India. But a critical
analysis of Indias progress after half a century depicts a sad reality. Poverty,
unemployment, illiteracy and poor health care facilities continue to haunt the nation. These
facts question the validity of our development model and its effect. The recent emphasis on
sustainable development is a product of our search for alternatives in pursuing human
happiness and welfare.
A conservative estimate of environmental damage in India puts the figure at more
than $10 billion a year or 4.5% of GDP in 1992. That is, urban air pollution costs India $1.3
billion a year. Water degradation leads to health costs amounting to $5.7b every year, nearly
three fifths of the total environmental costs. Soil erosion affects 83-163 million hectares of
land every year. Deforestation, which proceeded at the rate of 0.6% a year between 1981 and
1990, leads to annual costs of $214 million.
Taking an example of a development process of industrialization and urbanization
and its impact on the environment, it is noted that of the 3 million premature deaths in the
world that occur each year due to outdoor and indoor air pollution, the highest number are
assessed to occur in India. According to the World Health Organization, the capital city of
New Delhi is one of the top ten most polluted cities in the world. Surveys indicate that in
New Delhi the incidence of respiratory diseases due to air pollution is about 12 times the
national average. According to another study, while India's gross domestic product has
increased 2.5 times over the past two decades, vehicular pollution has increased eight times,
while pollution from industries has quadrupled.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 150
These disastrous revelations came at a stage when controlling such pollution was a
Herculean task. The development of India can be divided into phases. In the phase lasting
almost till 1972, development essentially meant usage of natural resource to gain material
wealth or rather conversion of natural resource to market commodities. There was
absolutely no consciousness of natural resource depletion or other issues of environment
degradation. The 1980s continued with speedy conversion of the green tree cover into the
green moolah cover in industrial houses and world state economies. It was somewhere in
the late 80s and early 90s that the alarm bells rang and the concepts of sustainable
development etc sprung up. Thereafter the global community has become conscious of the
possible results of the present rate of natural resource depletion world over.
Several enactments world over came into force; many of them based on general
environmental protection and quite a few on specific aspects of environment protection. The
crucial point however is not in the framing of exclusive enactment but in their enforcement.
This is of special relevance in a developing country like India.
A developing country like India is on its way to achieve the standards set by its
developed counterparts like the United States of America; while on to this arduous task, the
international community imposes on it an obligation to take care of its environment. The
situation, which arises, is one of prioritization; which in itself is the most challenging
decision for the state authorities. Its a position in the middle of the valley and the well.
The issues for consideration are:
The socio-economic cost for environment protection.
Environmental Cost for industrial development.
Retarded development for environment protection.

For a nation, which has yet to provide its citizen with the bare minimum necessities;
is it viable for it to take steps towards environmental protection which could use up funds
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 151
spared for development activities? Must the state give preference to activities of national
development or the larger issue of environmental protection? Also in a nation, where
people do not have a day's meal; would they be in a position to resort to environment
friendly products which are relatively more expensive than ordinary commodities?
Sometimes, these developing nations facing the multitude questions are also victims
of choice-less situations. For instance, a harmful substance-producing factory is to establish
by a foreign corporation in the developing country for the sake of economy. The developing
country looking for all avenues for development might or may be forced to permit this
establishment for fear of international sanctions and also for revenue purposes. The solution
suggested for balancing developmental needs and environmental protection has been
sustainable development. There has been fiery debate on this issue and much needs to be
resolved on this aspect.
The phenomenon of development also highlights another situation, where the
impact of developmental policies show a direct bearing on aspects of national life and may
affect one segment of the society more strongly than another segment. As much as a
segment of the global community moves towards urbanization, mechanization,
industrialization, another segment of the community would in all probability be paying for
it in relative terms.
ENVIRONMENTAL IMPACT ASSESSMENT:
In view of the Bhopal gas tragedy, future projects in a developing country like in
India must apply environmental Impact Assessment. (EIA) to fulfill the following
objectives:
to identify adverse environmental problems that may be expected to occur;
to incorporate into the development action appropriate mitigation measures;
to identify the environmental benefits and drawbacks of the project, as well as its
economic and environmental acceptability of the community;
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 152
to identify critical environmental problems which require further studies and /or
monitoring;
to examine and select the optimal alternative from the various relevant options available;
to involve the public in the decision-making process related to the environment ; and
to assist all parties involved in development and environmental affairs to understand their
roles , responsibilities and overall relationships with one another.
Environmental Impact Assessment is essentially a preventive process, which avoids
costly mistakes in planning and development. Therefore, it is necessary to carry out EIA
during the feasibility study stage of the planning process. India must carry out EIA for its
development projects in order to ensure economic development. It should ensure rational
geographic distribution of its development plans and try to avert adverse environmental
impacts in the future. Training of skilled manpower and an easy access to in order from
other countries having somewhat similar physical and socio-economic conditions are
important factors which could determine the quality of environmental assessment to be
made.
Developing countries must carry out EIAs to the best of their national capability.
Therefore it is urgently necessary to train our own experts in EIA. Foreign experts are no
substitute for well- trained local experts. The involvement of local expertise will not ensure
that EIAs are carried out more relevant to local needs, but will also ensure a significant
reduction in EIA costs when compared with those conducted by foreign experts.
The need to take environmental considerations into account to ensure successful
economic development is increasingly recognized throughout the world. Laws of many
countries provide that reports on environment impacts must be submitted for public review.
Environmental Impact Assessment provides an important methodology for acquiring a
clear understanding of the relationship between economy, society and environment and
offers positive measures for better harmonizing the relationship between economic
development and environmental protection as an effective means for strengthening
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 153
environmental planning and management. The implementation of this system is of great
significance to both economic development and environmental protection especially in a
developing country like India, with its historical Bhopal gas tragedy.
THE SUPREME COURT ON SUSTAINABLE DEVELOPMENT
The Indian Supreme Court has earned itself an excellent record in the creation of
environmental rights in India, and their contribution to the jurisprudence of
environmentalism has provided an example for environmental lawyers all over. The court
has also applied the principle of sustainable development in several cases before it. The
Indian experience serves as a good example to look at how sustainable development theory
has development in a given legal context.
The case regarded as a landmark for the application of sustainable development in
the Indian context is the decision in the Calcutta Wetlands case
xiv
, where a Public Interest
Litigation was filed against the rapid dredging and filling of marshes in the Salt Lake area
of Calcutta. The High Court recognized that the environmental concerns had to be
addressed at the same time as developmental concerns, and that development much
progress at a rate that took into account the interests of posterity as well. The High Court
struck down the decision to dredge and fill the marshes in Salt Lake on the grounds that
India was a party to the RAMSAR Convention, and had thereby signified its intent towards
the protection of wetlands. Further, the High Court also recognized that fact that the
industries could be built in other areas with less environmental damage.
The first concrete application of sustainable development theory arose in State of
Himanchal Pradesh v. Ganesh Wood Products, where the Supreme Court held that the
government could not allow the approval of these industries in the State where the
industries sought to use the forest products collected by mechanized units as the units had a
deleterious effect on forest wealth, ecology and the environment. The Supreme Court also
held such approval to be contrary to established considerations of sustainable development
and intergenerational equity. However, in the striking down of the approval of the forest
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 154
industries that posed environmental threats, the Supreme Court did not go into an analysis
of the application of the principle of sustainable development to the facts of that case, nor
did it explain the principle itself. Hence, the value of the case as a precedent for the
application of sustainable development in the Indian context may be regarded as slightly
doubtful.
The actual leap from the principle of absolute liability laid down in the Oleum Gas
Leak case occurred in the case of Indian Council for Enviro-Legal Action v. Union of India
where the court held that the manufacturers of products discharging toxic effluents into the
region would be liable for the payment of compensation as per the absolute liability rule
laid down in the Oleum Gas Leak case, as well as the precautionary principle and
sustainable development principles. This represented the first instance in which the
Supreme Court used sustainable development theory as a basis for calculation of damages
for environmental wrongs.
The decision in Vellore Citizens Forum v. Union of India was the first decision in
which the Supreme Court discussed the principle of sustainable development from a
theoretical standpoint. In that case, the Court agitated its mind upon the matter of polluting
tanneries in Tamil Nadu. The court held that the polluting industries had to prove that they
were non-polluting, as they had failed to do so; they were liable to be shut down and pay
compensation for the ecological damage caused by them.
The trend in the Supreme Court till recently was to apply the principle of sustainable
development towards ecological harmful industrial activity, resulting in the closure or
relocalisation of industries, as most of them were found to be violative of the delicate
sustainable development balance principle. However, of late, the trend has seen a few
deviations. Recent Supreme Court decisions have tended to support incursions on the forest
cover and the environment in the interests of development. Good examples are as follows:
Consumer Research & Education Center v. Union of India: In this case the petitioner
filed Public Interest Litigation against the alteration of boundaries of the Chinkara
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 155
Sanctuary to allowing within the sanctuary. The Court ordered that the mining be allowed
for a period of five years, after which it would examine if any deleterious impact of the
mining could be noticed.
Live Oak Resort v. Panchgani Hill Station Municipal Corporation: In this case, the
petitioners sought to prevent the construction of a 5-star luxury hotel in the Panchgani Hill
Station on the ground hat it might affect the environment of the area. Court in this case
allowed the construction on the grounds that:
In a developing economy there cannot be only development or only
ecology, but both must exist and thus a balance will have to be struck
else otherwise society will perish in the absence of either of the elements.

Narmada Bachao Andolan v. Union of India: This was a case challenging the legality of the
proposal to raise the height of the Sardar Sarovar dam, which would directly impact people
in parts of the states of Madhya Pradesh and Gujrat. When discussing the environmental
impact of the dam, the court did not apply shift the onus of proof upon the polluting
industries as was laid down in MV Nayudus case. As dams were not so inherently hazardous,
this shift in the onus of proof was unnecessary. The Court held:
Merely because there will be a change is no reason to presume that
There will ecological disaster. It is when the effect of the project is
Known then the principle of sustainable development would come into
play, which will ensure that mitigative are and can be taken to preserve
the ecological balance. Sustainable development means what type or extent of
development can take place, which can be sustained by nature and ecology, with or without
mitigation.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 156
Having looked at the decision of the Supreme Court seeking to apply sustainable
development theory, the correctness or authenticity of their application must also be
analyzed. In the initial phase, it cannot be denied that the Supreme Court was on a strong
theoretical footing, seeking to apply sustainable development by means of its handmaidens-
the polluter pays principle and the precautionary principle. The application of sustainable
development in the Indian context may not satisfy conventional sustainable development
theorists, however, as some of the later decisions conflict with this trend and seem to have
the following common characteristics:
The reliance upon the precautionary principle, which pervaded earlier judicial
decisions, seems to have been diluted in these decisions. The precautionary principle takes a
very tricky approach to the enforcement of protective measures for the environment.
Hence, any doubts that may reasonably arise may be justified on the basis of this principle.
There also appears to be a shift away from he reconciliatory approach of sustainable
development. The concept of sustainable development is reconciliation between
environment and economy. Decisions of the Supreme Court seem to take a confrontational
approach to the crisis of ecology and economy, by adopting to follow either a purely
ecological trend, or a purely economic perspective, depending upon which has a more
persuasive case.
Finally, it must be submitted that sustainable development is not purely abstract
concept. It must be clearly enunciated, and its tools and methods must be clearly specified.
However, while prescribing the trend of sustainable development, the Supreme Court has
failed to lay down a roadmap for sustainable development in its orders. While it is clear that
the courts in India have not adhered to a rigid interpretation of sustainable development
theory in India, the importance of the theory lies in its potential for use by the courts as a
means of ensuring environmental compliance. Hence, in order to comply substantially with
the requirements of sustainable development theory, the courts should seek to incorporate
the suggestions made above.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 157
To end the discussion it can be said that the threat to environment and ecology due
to pollution, poverty, population and indiscriminate industrialization is a hard reality in
India. People have begun to realize the dangers to ecosystem inherent in the development
design India has chosen at the behest of market forces. Alternatives to this kind of
development are still being searched and sustainable development is one of them. There
have been some fundamental problems endemic to sustainable development like transfer of
environmental technology, the need for a social policy etc. But it appears in the present
context a better alternative. Therefore, it is a crucial decision on the part of the nation as it
has decided its future in a development policy, which will encapsulate equity, equality and
excellence. The sooner are will find the alternative of better for the native as well as the
world. But to our understanding and observation, we can achieve our objective of economic
growth and equitable distribution of wealth and resources if we can restructure our present
development policy and alter our priorities a bit. In fact, crucial to development practice is
the notion of commitment and accountability. If our political decision makers and
executives of development and planning could be accountable to the masses for their action
and a little bit committed to the ethos of development then we could see significant change
in near future.
REFERENCE

i
M.U. Haq, The poverty Curtain: Choices for the Third World, New York: Columbia University Press, 1979, p.9.
ii
K.K. Prah, African Languages Key to African development, in M.V. Troil, Changing Paradigms in
Development South East and West, Uppasala: The Scandinavian institute of African Studies, 1993, pp.70-75.
iii
S. Mahapatra, Culture as Centre Piece, Times of India. New Delhi, 5
th
August, 1994.
iv
M.R. Dove, The Real and Imagine Role of Culture in Development, Honolulu: University of Hawaii Press,
1998.
v
A. Guha and F. Vivekananda, Development Alternative, Stockholm: Bethny Books, 1985 pp.41.
vi
F. Barnaby, The Environmental impact of the Gulf War, The Ecologist, vol. 21; No. 4, July/August, 1991.
vii
J. Speth, A Post Rio Impact, Foreign Policy, No.88.pp. 146-61, 1994.
viii
Pearce et al. Sustainable Development, London: Edward Elger Pvt. Ltd., 1990.
ix
Winepenny, 1990 Quoted from- Kula, E., Economics of Natural Resources, the Environment and Policies,
London: Chapman & Hall, 1994.p. 32.
x
J. Mohan Rao, Economic Reform and Sociological Refurbishment: A strategy for Indian agriculture, in
Economic and Political Weekly, vol. XXX no. 28, July, 15.
xi
V.R. Reddy, Environment and Sustainable Agricultural development, economic and Political Weekly, vol.
XXV no. 12, March 25, 1995.
xii
9. Pearce et al. Sustainable Development, London: Edward Elgar Pvt. Ltd., 1990.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 158


xiii
11. Ibid p. 32.
40. D.N. Dhanagare, "Sustainable Development, Environment and Social Science Research in India",: in
Savur, M., & Mushi, M., (ed) Contradictions in Indian society, Jaipur : Rawat Publications, 1995.
15
. Reddy, V.R., "Environment and Sustainable Development", Economic and Political Weekly, Bombay :
Vol. XXV. No. 12, March 25, 1995.
41.
People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 159
CASE COMMENT
OCCUPATIONAL HEALTH AND SAFETY
ASSOCIATION VERSUS UNION OF INDIA,
ARUP KUMAR PODDAR
INTRODUCTION:
Supreme Court has decided number of cases where the environmental degradation was
questioned severely and also protected various components of the environment while
applying various provisions of the environmental legislation including principles of
international environmental law. In the year 1997, the Supreme Court in a number of cases
decided in favour of environmental protection and given a balanced opinion also for the
workers working in the industries. For example, Calcutta Tannery, Taz trapezium cases
while shifting and relocating the existing industries, Supreme Court provided monetary
relief to the workers working in the industries. However, there are very few cases where the
health issues of the workers working in the hazardous industries have been dealt with by the
judiciary. The present case comment will try to focus on the health issues of workers
working in the thermal power plants.
FACT OF THE CASE:
In the present case the petitioner represents about 130 Coal Fired Thermal Power Plants
(CFTPPs) these power plants are available all over India in different parts of the State.
However, there were no proper occupational health services with adequate facilities for
health delivery system available in these plants. Even there was lack of proper guidelines
with respect to health and safety.

Whereas the legislations like Factories Act, Boilers Act, Employees State Insurance Act,
Compensation Act, the Water (Prevention and Control of Pollution) Act, the Air (Prevention
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 160
and Control of Pollution) Act, the Environmental (Protection) Act, etc. are in place. It is
interesting to note here that in spite of having the above-mentioned legislations there are
continuous lack of proper health delivery system and evaluation of occupational health
status of workers. Because of the lack of implementation of the above-mentioned
legislations, the workers who are working in the factories and industries are continuously
exposed to the most hazardous health problem and living style also got affected.
An interlocutory application was filed by the petitioner respectively one in the year 2005
and the other one in the year 2007 where the serious health issues where highlighted for the
workers who were working in different power plants and were suffering for years.
Petitioners submitted a report which was indicating that most of the workers were suffering
from pulmonary function test abnormalities, lung function abnormalities, skin diseases,
asthama and so on.

In the present case the petitioner is a non profit occupational health and safety organisation,
and registered under the Societies Registration Act 1860.
RELIEF SOUGHT:
The petitioner brought the case under article 32 of the Indian Constitution. The petitioner
requested for the following relief:
a. to issue a writ of mandamus or any other order, direction including framing of
guidelines with respect to the operational safety and health regulation;
b. two issues such orders, directions by which union of India shall constitute a
committee form a monitoring of the working of thermal power plants in India;
c. to issue a writ of mandamus or any other appropriate writ, order or direction
directing the respondents to pay compensation to the workers who are victims of
occupational health disorders and to frame a scheme of compensation for workers in
case of operational health disorders;
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 161
d. two issues orders, directions to the respondent under which the respondent shall be
compelled to notify the recommendations is contained in paragraph 35 of the
petition as guideline to be followed by thermal power plant.
INTERIM ORDER & DIRECTIONS:
This supreme court after the hearing this petition issued an interim order on January 30,
2008. The case was decided by two judges, they are K.S. Panicker Radhakrishnan and A.K.
Sikri. In the interim order, the Supreme Court issued certain directions:
a. Medical checkup to be done to all the workers who are in coal-fired thermal power
station. This medical checkup shall be binding in nature. First medical checkup
should take place within six months. Thereafter the medical checkup shall be done
yearly basis;
b. workers found ill and undergoing with treatment shall not be terminated from job;
c. the provisions of the Workmen's Compensation Act 1923 shall be taken into
consideration while paying compensation to the workers suffering from any
occupational diseases, ailment or accident;
d. workers should not suffered from the occupational health hazards, therefore, modern
protective equipment shall be provided to workmen as recommended by an expert
body in consultation with the trade unions;
e. there should be devices to be adapted within the industries by which the dust, heat,
noise, vibration and radiation can be controlled. This controlling process may be in
the line of recommendation given by the National Institute of Occupational Health
Ahemdabad, Gujarat;
f. there must be health audit as devised by the Bureau of Indian Standards, all
employees shall follow the code of practice on occupational safety and health;
g. workers showed adept safety methods while handling, collecting and disposal of
hazardous wastes;
h. a committee to be established with the help of experts from National Institute of
occupational health including the representatives of the trade union, representatives
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 162
from the non-governmental organisation to look into the health and safety of
workers and make recommendations for their upliftment.
Learned Additional Solicitor General, Mr. P.P. Malhotra, on behalf of the Government of
India submitted the fact that the guidelines provided by Supreme Court have been accepted
by the central government. The government also clarified that actions shall be taken under
the relevant provisions of laws, which are already in existence. Similarly, the Supreme
Court also directed the Ministry of Labour that the concern Ministry should take
appropriate steps in the line of the suggestions made herein so that the employees working
in the concerned industry can also be benefited with the help of these suggestions
generated. However, the council on behalf of the central government clearly mentioned
that directions like workers should adopt safety methods, while handling collecting and
disposal of hazardous waste and a committee to be established with the help of experts from
the National Institute of operational health of including representatives from the trade
union and group non-governmental organisation, the government shall examine and fix the
way of enforcement.
This writ petition came back before the Supreme Court again on 6.9.2010 and was disposed
off by the court accordingly. Subsequently, the government submitted the report on the
occupational health and safety. The report was submitted by the National Institute of
occupational health, where the protest from non-governmental organisation, trade union,
personnel from National Institute of occupational health and safety, where present to give
recommendations relating to collection, disposal and handling of hazardous waste. The
committee had to look into the feasibility of working condition of the workers/employees
working within the industry which are hazardous in nature. The committee was of the
opinion that most of the industries that are lacking the occupational health and safety
guidelines, therefore, the suggestions, whatever generated from the central government
must be instituted almost in all the industries which are hazardous in nature.
OBJECTIVE OF ENVIRONMENT (PROTECTION) ACT:
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 163
The Environmental (Protection) Act, 1986 gives us a wide range of guidelines which are
pertinent for the hazardous industries as well. Similarly, Sections 6, 8, 25 of the
environment protection act provide sufficient instrument in the hand of central
government to frame regulation, under which the handling, collection and disposal of
hazardous waste can be regulated and controlled well. Therefore, the Environment
Protection Act is also applicable to the industries where the workers are facing health
problem because the industries are hazardous in nature. Accordingly, as per the provisions
of the Environment Protection Act, it is the central government who is responsible to ensure
health and safety of the worker those who are working in these results industries.

Senior counsel, Mr Colin Gonsalves, raised objections while stating that the central
government and the committee both misunderstood the directions given by the Supreme
Court, basically, in terms of quick remedy to the workers who were suffering with the
health issues as working in the hazardous industries. According to senior counsel, the
central government and the committee both overlooked the necessity of time bound
operation for the medical treatment to the workers who are suffering from occupational
health and disease. Similarly, senior counsel also pointed out that the workers who are
facing serious and irrevocable occupational health issue should be entitled for
compensation amount under the provisions of appropriate law. It can be added here that
the central government has the responsibility to enforce the provisions of the law which are
applicable to the society and people who are suffering with occupational health and safety
issue, but also to bring the relevant and appropriate policy which are inevitable for the
purpose of providing substantial social justice to the workers who are suffering under the
occupational health and safety measure those who are working in the hazardous industries.
Directive principles of State policy, which is the integral part of the Indian Constitution,
entrusts on the central government substantial duty to bring policy which can provide
social and economic justice to the weaker sections of society.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 164
It is interesting to note that, the additional Solicitor General clearly pointed out that it is in
government and the committee, established for the purpose of looking into the health and
safety to the workers who are working in the thermal power plant, appropriately looked into
various problems and suggested the way out under which proper actions to be undertaken
by the management of the thermal power plant. Additional Solicitor General made it very
clear that it is not surprising for the management not to look into the health issues of the
workers, rather the management is efficient enough to look into the feasible options of
health issues of the workers, because management is well aware of the fact that the power
plant functions with the help of the workers day and night.
CASE REFERENCE:
The Supreme Court in Consumer Education and Research Centre V. Union of India case
(1995) 3 SCC 42, made it very clear that the health of the worker is protected as
fundamental right under article 21 of the Indian Constitution. Once article 21 of the Indian
Constitution is compared with article 39, article 41, article 43, article 48A, give a
magnificent provision of fundamental human right to the worker who are working in
hazardous industries. Supreme Court made it very clear that when the workers are exposed
to such industries which are hazardous in nature, it is the duty of the central government to
bring policies under which the health of the workers can be protected. Not only that, the
family of those workers and their health should also be protected by the central
government and by the management of the industries.
RIGHT TO HEALTHY ENVIRONMENT:
Right to healthy environment is one of the fundamental rights enshrined under article 21 of
the Indian Constitution. Article 21 of the Indian Constitution speaks loudly about right to
live with human dignity. It is also true that the same article also speaks of right to healthy
Environment. However, Article 21 of Indian Constitution while saying the right to healthy
environment depends on other articles as well. For example, Clauses (e) and (f) of the
Article 39, Article 41, Article 42 of the Indian Constitution are few to name who play vital
role in giving the final shape of right to healthy environment as enshrined under Article 21
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 165
of the Indian Constitution. So, all the above-mentioned provisions of the Indian
Constitution finally give the shape of protection in of the environment and also protection
and safety of the health of workers. Supreme Court here analysed the fact that it is the
minimum duty of the States to provide minimum human dignity to all persons including
workers who are exposed to hazardous industries. Similarly, when the workers are working
in thermal power plant, an industry which is hazardous in nature and also associated with
occupational health and safety issues round-the-clock, the duty and responsibility of the
central government and the management of the industry become double fold under these
situations keeping in mind that the workers are working to those industries which may be
hazardous in nature but at the same time the workers are involved in the industries which
are generating power for the national interest, of the National growth and for overall
development of the nation.

It is important to note here that India is the largest producer of coal in the world. For
running the thermal power plant India needs for about 14,000,000 tonnes of coal per year.
As per the report of the Ministry of power, Government of India we have at this moment
130 thermal power plant available in India. The total electricity produced in India in which
2/3 is supplied by the thermal power plant. Therefore, thermal power plant is inevitable for
the growth of the nation. In the circumstances when the workers are forced to work in
industries which are hazardous in nature, one cannot compromise with the obligatory
presence of workers role is inevitable because that play vital role in the overall development
of the nation.
REPORT OF THE COMMITTEE:
The committee constituted by the National Institute of occupational health including with
the representatives from the trade union and also from the non-government organisation
produced a report before the Supreme Court. Few basic features of the port as under:
a. use of hazardous material in insulation-certain materials like asbestos, glass wool, etc
are frequently used in thermal power plant. If these materials are inherited by the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 166
workers or if they come into contact in workers is keen for I that because huge health
disorder. Similarly, as asbestos is also carcinogenic element which may cause cancer
to the workers. Nowadays, safer substitutes, such as paramid, polyvinyl alcohol
(PVA), cellulose, polyacrylonitrile, glass fibres, graphite are available, maybe explore
for alternative use.
b. Different provisions of the Environment Protection Act and also from time to time
the changes brought in the act should be enforced to ensure the appropriate
maintenance of emission and discharge standards, ash utilization and management
of hazardous wastes. Similarly, health and safety of workers are to be ensured by the
management of the thermal power plant.
c. Flying ash from the thermal power plant should be utilised as per the guidelines
given by the Central Pollution Control Board in the 2009-10.
d. So far possible automatic machine for handling the coal may be installed in the
thermal power plant, so that the workers may have opportunity to keep themselves
away from coal.
e. There should be broad guideline for the purpose of looking into the health issues of
workers in the thermal power plant. It is also important that there must be
manpower who would train the workers to meet with the need in case of
emergencies. The services which are to be emergency team within the thermal
power plant should be independent from the hospital services. However, there must
be relation between the hospital services and also the services within the thermal
plant, with relation to treatment of patient in case of emergency. The workers should
be trained well that how to apply first aid in case of emergencies.
f. Systematic and periodic awareness scheme and programme should be operated to the
workers of the thermal power plant. Here, community awareness programme also
should be encouraged among and between the workers and their families.
g. Periodic medical checkup and examination of health of the workers are mandatorily
to be undertaken by the management of the thermal power plant. As per the
Factories Act the periodic chest x-ray is recommended to the workers, however, the
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 167
committee thinks it fit that yearly checkup of the chest with the help of x-ray, may
not be possible, because that may create some other health issues to the workers
therefore, chest x-ray can be possible initially for two years thereafter at the lapse of
10 years, chest x-ray can be possible.
h. Health records of all the workers to be prepared in documentation form and also in
chronological order and preferably should be stored in an electronic form.
i. All the thermal Power plant should prepare vision statement on environment, health
and safety guidelines. There, different policy and legislation should also be kept as a
part of reference material. Management of the power plant should without fail look
into the enforcement of the various provisions which are related with the protection
of the health and safety of the workers working in hazardous industries.
j. Finally, the committee also thinks that the document on health and safety of the
workers working in the hazardous industries should be in place at the earliest. In this
regard, the different relevant provisions of the Factories Act should be consulted for
the preparation and management of the health and safety issue of the workers not
only who are holding permanent position but also for those workers who are out of
contract or casually appointed as well.
The report of the expert committee for that gives an indication that the workers who are
working in these coal-based thermal power plant, generally exposed to hazardous activities
such as exposed to dust, heat, noise, vibration and waste. Similarly, the workers also inhale
dust generated from the burning of coal and suffer from respiratory problem throughout
the life. Because of Hughes exposed to noise, the workers suffer from low hearing, high
blood pressure, radio vascular disorder, muscle and bone disorder, etc.

FINDINGS:
The Supreme Court, while deciding the case, clearly pointed out that thermal power plants
are not present in one state of India; rather the thermal power plants are available all over
India. Therefore, the respective states, where the thermal power plants are available, High
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 168
Court can also take lead role in this regard and supervise the functioning of these thermal
power plant and workers thereof. The state High Court can ensure that the vision
statements with relation to protection of the health of workers in the coal-based thermal
power plants are adequately followed as per the provisions of the various relevant
legislations available in India. The state High Court would also ensure that the health
delivery system is followed appropriately in the same state and providing solutions to
various health issues to the workers working in hazardous industries. At the same time,
High Court should ensure that the medical treatment is offered to all the workers working
in thermal power plants.
CONCLUSION:
From the above discussion, it can be concluded that the present case was decided by the
Supreme Court in order to protect the health of the workers working in the thermal power
plants. It is very evident that in the year 1991 Supreme Court clearly defined the mandate
of rights to healthy environment as a part of Article 21 of the Indian Constitution while
deciding the Subhash Kumar versus State of Bihar case of 1991. The industry not only
should take due care in order to protect the people, who are residing in the vicinity of
industry, from its hazardous activities, but also protect the health of the workers who are
working within the industry and are exposed to various hazardous activities. The committee
constituted by the National Institute of occupational health made various
recommendations, which the Supreme Court has accepted for further implementation with
the help of state High Courts.


Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 169
CASE COMMENT
ASSOCIATION FOR MOLECULAR
PATHOLOGY,
ET AL V UNITED STATES PATENT AND
TRADEMARK OFFICE ET AL
i

GARGI CHAKRABARTI
BRCA 1 and BRCA 2 genes are found to be associated with the increased risk of breast
cancer as well as ovarian cancer. In 1990, a team of scientists from University of California,
Berkeley declared the association of BRCA 1 gene (present in long arm of chromosome 17)
with the risk of breast cancer.
ii
In 1994, researchers of Myriad genetics along with colleagues
at the University of Utah, the National Institutes of Health (NIH), and McGill University
isolated and published the sequence of BRCA 1.
iii
In the same year, the first BRCA 1 U.S.
patent was filed by the University of Utah, National Institute of Environmental Health
Sciences (NIEHS), and Myriad. In 1995 isolation and sequencing of the BRCA2 gene was
done by Myriad, in collaboration with University of Utah and the first BRCA2 patent was
filed in the U.S. In 1996, Myriad launched their BRCA Analysis product, which detects
certain mutations in the BRCA1 and BRCA2 genes that put women at high risk for breast
cancer and ovarian cancer. USPTO issued several gene patents to Myriad Genetics and the
University of Utah Research Foundation, allowing extensive control over BRCA1 and
BRCA2 breast cancer genes. The patents also contained some broad claims to diagnostic
methods. Myriad is the only laboratory in the United States where commercial diagnostic
testing for BRCA1 and BRCA2 can be performed. Moreover, the tests are expensive and
Myriad has charged a relatively high rate (over $3,000) for the tests, which places them out
of the reach of many.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 170
FACTS
The AMP (Association for Molecular Pathology) with the University of Pennsylvania,
researchers at Columbia, NYU, Emory, and Yale; and with several patient advocacy groups
and several individual patients filed the case against Myriad, the Trustees of the University
of Utah, and the U.S. Patent and Trademark Office (USPTO). The USPTO was severed from
the case by the district court. The complaint made against specific claims on isolated genes,
diagnostic methods, and methods to identify drug candidates, in seven of Myriad's 23
patents on BRCA1 and BRCA2.
iv
The plaintiffs claimed that these patents were invalid on
the grounds that they are not patentable subject matter under 101 of Title 35 of the United
States Code as the isolated genes are unpatentable products of nature, and that the
diagnostic method claims are mere thought processes that do not yield any real
transformations, and that the drug screening claims were just describing the basic processes
of science.
According to USPTO, genes are chemical compounds, though complex ones, and thus
qualify for potential patenting as compositions of matter. Naturally occurring product
cannot be patented, but the USPTO has allowed patents on genes, naturally occurring
products, that have been purified, isolated, or otherwise altered. For this reason, gene
patents have been issued in the U.S. for decades. The National Institute of Health estimates
the number of patents in the United States that cover "isolated" or "purified" genes to be
around 20% of all human genes. These include genes that have been associated with
different forms of cancer, Alzheimers and other diseases.
Count of Myriads patent claims can be divided into two parts: (i) For isolated DNA
sequences and (ii) For methods of comparing or analyzing gene sequences to identify the
presence of mutations corresponding to a predisposition to breast or ovarian cancer.
v
Both
sets of patents were rejected under Section 101, which enumerates the permissible
categories of patentable subject matter: processes, machines, manufactures, and
compositions of matter. As the judge of District Court noted, a long history of cases forbids
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 171
claims on laws of nature, abstract ideas, and natural phenomena, which include products of
nature.
Isolated DNA Sequences denoted as insufficiently distinct from naturally occurring genes
in the body. Whether a patent application for subject matter is patentable or not, is based on
novelty, utility, and non-obviousness criteria. To establish the said criteria, the court went to
assess how different an isolated gene would have to be to avoid characterization as a
product of nature. Myriad defined isolated in its patents as substantially separated from
other cellular components which naturally accompany a native human sequence [such as]
human genome sequences and proteins.
vi
As a reference Myriad argued on some cases
going back to the early twentieth century which especially one involving purified
adrenaline.
vii

The judge disagreed strongly and went back even further, to nineteenth-century cases
involving line fibers and wood pulp, as well as later cases involving such things as pure
tungsten, and concluded that purification of a product of nature, without more, cannot
transform it into patentable subject matter. Rather, the purified product must possess
markedly different characteristics in order to satisfy the requirements.
viii

Myriads isolated genes failed this test. In his search for markedly different characteristics,
Judge Sweet presumably held that critical functional property of a gene is its ability to carry
the information sufficient and necessary to code for a protein, whether in the body or in
isolation. DNA represents the physical embodiment of biological information, distinct in its
essential characteristics from any other chemical found in nature. It is concluded that
DNAs existence in an isolated form alters neither this fundamental quality as it exists in
the body not the information it encodes. The preservation of this defining characteristic of
DNA in its native and isolated forms mandates the conclusion that the challenged
composition claims are directed to unpatentable products of nature.
ix

From the very beginning of gene patenting, patent lawyers have taken the stand that genes
are just chemicals. Their information carrying function is irrelevant to their patentability.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 172
Because genes are chemically different in isolation, at least in a literal sense, they cant be
considered products of nature. The USPTO and the courts, including the patent court of
appeals have uniformly submitted.
Myriads process claims also failed to fulfill the patentable criteria. The court conducted the
machine or transformation test for method claims (This test comes from the recent Bilski
case; although the Supreme Court will soon issue its own opinion on Bilski case, the
machine or transformation test is the law unless and until the Supreme Court orders
otherwise). Judge Sweet found that none of the methods were coupled to any particular
machine, nor did they bring about a tangible transformation of anything. As per his
judgment, because the claimed comparisons of DNA sequences are abstract processes, they
also constitute unpatentable subject matter and physical transformations associated with
isolating and sequencing DNA, they would still fail the machine or transformation test
under 101 for subject matter patentability.
x

In reference to the said case, it is relevant to maintain that in 2007, the European Patent
Office (EPO) rejected an appeal by Myriad Genetics and the University of Utah, relating to
the BRCA1 gene and its applications. There was widespread objection to the extent of this
claim among European researchers, since it granted an effective monopoly to Myriad which
they believed unjustified; six bodies filed objections, leading to a decision by the EPO in
2005 to substantially amend the patent, retaining only the claims relating to a specific
nucleic acid probe and vectors containing gene sequences. The EPO has now rejected an
appeal by Myriad and the University of Utah, and amended the patent, meaning that
European laboratories retain the right to perform diagnostic tests for mutations in the
BRCA1 gene sequence, which are associated with increased susceptibility to breast and
ovarian cancer.
Myriad's appeal at United States Court of Appeals for the Federal Circuit was granted and
the case was heard in 2011. On July 29, 2011, Judge Alan Lourie of the Federal Circuit
reversed the district court's decision saying that an isolated DNA sequence and that methods
for screening cancer therapeutics is patent-eligible; but agreed with the district court's
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 173
decision that Myriad's claims for comparing DNA sequences are patent-ineligible. The
reason shown is that isolated DNA is chemically distinct from the natural state of a gene in
the body.
xi

AMP, being unsatisfied with the judgment of the United States Court of Appeals for the
Federal Circuit, applied for the review of the case in the Supreme Court. Supreme Court
granted the review on March 26, 2012 after vacating the judgment of Federal Circuit. The
reference of the recent decision in Mayo Collaborative Services v. Prometheus Laboratories,
Inc.,
xii
is cited where the Court ruled that certain kinds of claims in medical diagnostics
patents, including natural phenomena, were not patentable. The Supreme Court wanted the
Federal Circuit to take this precedent into account while reviewing this case. But eventually,
the decision of Federal Circuit after second hearing also was almost the same as before and
moreover they found that the Mayo precedent was not particularly relevant to this case, as it
did not deal with the patent eligibility of gene patents.
xiii

American Civil Liberties Union and the Public Patent Foundation filed another petition in
the Supreme Court after the second Federal Circuit Decision, on September 25, 2012. On
November 30, 2012, the Supreme Court had agreed to hear the plaintiffs' appeal.
xiv
After
hearing the United States Supreme Court held that an isolated segment of naturally
occurring DNA segment is a product of nature and is not patent eligible, the simple reason
behind that is it has been isolated from the gene and it contained the same genetic
information as that of natural DNA. On the other hand the Court held that, as cDNA
sequence is an exons-only molecule and is not naturally occurring, thus is eligible for
patenting in the United States.
ANALYSIS
BRCA 1 & BRCA 2 gene patents to Myriad Genetics by USPTO, allowed extensive control
over BRCA1 and BRCA2 breast cancer genes by Myriad. The patents also contained some
broad claims to diagnostic methods. So it becomes practically impossible for other
companies to test those genes and develop alternative tests; women left with no other choice
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 174
but to use only Myriad; as Myriad is the only laboratory in the United States where
commercial diagnostic testing for BRCA1 and BRCA2 can be performed. The Myriad after
getting exclusive rights over testing, had consistently refused to grant licenses to allow any
other parties to perform testing, which marginalized the at-risk women. So the Supreme
Court decision has come as a welcome move for all the at-risk women, as well as the
companies engaged in the research and development regarding the BRCA 1 & BRCA 2
mutation diagnostic methods.
In the positive note, non-patentability of the isolated DNA is well appreciated because from
the diagnostic perspective; research and development can get wider scope as the researchers
can find out the new linkages between specific disease with the specific gene sequence
responsible for the disease. Not only that, it can solve the public interest issue. The diagnosis
and treatment price rise due to patent can be minimized because of more competition
between different companies. Even, the triple test of patent criteria is well established by this
particular decision where the word invention is properly defined.
On the contrary, cDNA is necessary tool for making gene probes and doing gene cloning;
which are very much helpful for research and development for gene therapy. Patenting of
cDNA will hinder the public health and public interest issue in general. Now the gene
therapy is available only for cystic fibrosis but in future it may prove itself to be a very
effective treatment modality for various diseases including cancer. Researchers may face a
roadblock as a consequence of the patentability of cDNA.
REFERENCE

i
Case citation No. 12398. Argued April 15, 2013Decided June 13, 2013; available online at
http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf (accessed on 18.06.13)
ii
Hall, J. et al (1990). "Linkage of early-onset familial breast cancer to chromosome
17q21". Science 250 (4988): 16841689.
iii
Miki, Y. et al (1994). "A strong candidate for the breast and ovarian cancer susceptibility gene BRCA1".
Science 266 (5182): 6671.
iv
Schwartz, John and Pollack, Andrew (March 29, 2010). "Judge Invalidates Human Gene Patent". The New
York Times. Retrieved March 29, 2010.
v
Page 2 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010 available online at:
http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion.pdf (accessed on 04/2/2010)
vi
Page 92 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 175

vii
http://pubs.acs.org/subscribe/archive/mdd/v04/i12/html/12timeline.html
viii
Page 121 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010
ix
Page 125 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010
x
Page 147 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010
xi
United States Court of Appeals for the Federal Circuit Docket 20101406, Decided July 29, 2011. Appeals
Court Decision
xii
566 U.S. ___ (2012); 132 S. Ct. 1289.
xiii
Conley, John. "Applying Mayo to Myriad: Latest Decision Brings No New News". Genomics Law Report.
Retrieved October 14, 2012.
xiv
Kevin E. Noonan for Patent Docs Blog, September 25, 2012. Plaintiffs (Again) File Certiorari Petition in Myriad Case.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 176
LEGISLATIVE COMMENT
THE NATIONAL FOOD SECURITY ACT, 2013: A
CRITIQUE.
GEORGE K. JOSE
THE NATIONAL FOOD SECURITY ACT, 2013
Aims to provide for food and nutritional security by ensuring access to adequate quantity of
quality food at affordable prices to the people to live a life with dignity. It also provides
ways and means for the revitalization of agriculture in the country. While the Act
specifically calls for revitalization of agriculture, the state and central governments are
handing over agriculture to the corporate sector. The massive migration of people from
rural areas to the towns abandoning agricultural sector and alarming numbers of suicides
by farmers across the country adds to the urgency in the matter. Objectives of Food Security
Act and the agricultural corporatization by the Government of India in tune with the
demands of WTO and globalization seem incompatible. Encouraging corporate interest in
agriculture may destroy the very objectives of Food Security Act. It is necessary to
understand the various incompatibilities between food security and revitalization of
agriculture as mandated by the Constitution on one side and corporatization of agriculture
under the pressures of globalization on the other. One has to find an ingenious approach to
WTO conditions that currently turn Indian agriculture into a multi- national business for
profit alone.

The Indian National Food Security Act, 2013, (also known as the Right to Food Act) is a
legislative measure of the Government of India to guarantee subsistence and nourishment
to nearly 67% of its 1.2 billion populations. This herculean task attempts to secure more
than 70 million Indians from the threat of starvation. More than six decades after its
independence, India now offers a guarantee to its people that of providing them with very
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 177
first of basic human need, i.e. food. By enacting Right to Food legislation India is also on its
way to fulfill its commitment to one of the Universal Human Rights.
The National Food Security Act, 2013, provides for food and nutritional security in human
life cycle approach, by ensuring access to adequate quantity of quality food at affordable
prices to people to live a life with dignity and for matters connected therewith or incidental
thereto. Enactment of Right to Food is considered as one of the major achievements of the
UPA- II Government along with the Mahatma Gandhi National Rural Employment
Guarantee Act, 2005, enacted under UPA-I. For the UPA Government at the Center the
enactment of laws to provide for minimum employment and food for the rural and urban
poor are fulfillment of its election promises and commitment to the needs of the poor and
marginalized.
Under the Food Security Act, provisions are made to ensure every person belonging to
priority households, shall be entitled to receive five kilograms of food grains per person, per
month at subsidized prices and households covered under Antyodaya Anna Yojana be
entitled to thirty five kilograms of food grains per household per month at specified rates.
This scheme shall extend up to seventy five percent of the rural population and up to fifty
percent of the urban population. Special provisions for food guarantee are made for
pregnant and lactating women and every child up to the age of fourteen years.
Chapter III of the Act ensures that in case of non-supply of the entitled quantities of food
grains or meals to entitled persons under Chapter II, such persons shall be entitled to
receive such food security allowance from the concerned governments to be paid to each
person within time and manner prescribed.
Schedule III under Section 31 of the Act provides ways and means for the revitalization of
agriculture in the country through agrarian reforms including measures for securing
interests of small and marginal farmers, increase in investments in agriculture, ensuring
livelihood security to farmers and prohibiting unwarranted diversion of land and water
from food production etc. Along with revitalization of agriculture, access to safe and
adequate drinking water and sanitation, health care nutritional, health and education
support to adolescent girls along with adequate pensions for senior citizens, persons with
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 178
disability and single women are also envisaged. Though hidden away in one of the
Schedules, the ambitious provisions of the Act are going to be Himalayan tasks for the
government. Tough policy decisions and budgetary allocations to back such decisions are
going to be difficult or near impossible given the international trade implications.

The Food Act is a guarantee for food availability or food security. The National Food
Security Act of India aims to provide for food and nutritional security .by ensuring
access to adequate quantity of quality food at affordable prices to the people to live a life
with dignity and it has laid down provisions for advancing food security in India through
revitalizing agriculture. The Directive Principles of State Policy, while laying down guiding
principles for the governance of the country has specifically mentioned the growth of
agriculture as a priority.

The mandate of the constitution under Article 48 is to modernize agriculture and animal
husbandry on scientific lines and the National Food Security Act specifically calls for
revitalization of agriculture to advance food security. However today the policies of the
Central and State governments in India in field of agriculture or agrarian developments is
subject to the WTO Agreement on Agriculture.

There is an alarming growth of corporate sector in agriculture producing bitter harvests
across the country. Corporatization is defined as a process of reorganizing government
owned organizations to reflect the structure of a publically owned corporation. The
restructuring of the government entity is generally not publically traded with the
government being the sole shareholder.
Corporatization of agriculture means that fewer and fewer people (acting through
corporations) are controlling more and more of the production of food. The corporatization
of agriculture also means that small, family farms are also closing down. Millions of
landless agricultural labourers, are not even accounted for in this scenario. A lions share of
beneficiaries of the Food Act will be from this category.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 179
India is not safe from the invasion of corporatization of agriculture. Globalization and
liberalization are turning Indian agriculture into a business for profit under the aegis of the
WTO conditions. Agricultural subsidies and food subsidies are on the prohibited or frowned
upon list of the global market. The billions required to subsidize the food grains for more
than 70 crores of Indian is going go foul with the market mechanisms the government has
agreed upon with international community.

The massive migration of people from rural areas to the towns abandoning agricultural
sector for better employment and livelihood in cities is a call for critical analysis of the way
the nation is handling its agriculture. Alarming numbers of suicides by farmers across the
country adds to the urgency in the matter. Millions of landless agricultural laborers, who
are also mostly illiterate and unskilled, constitute the single largest work force in the
country. The ever expanding corporatization of agriculture ensures that these millions have
no more gainful employment, pushing them down the food pyramid to starvation.

The Food Act has no end of critics. The enormous financial burden it is going to impose on
the exchequer is frightening factor for the economy of the country. According to the
government's own calculations, the additional annual food subsidy implication will be
about Rs.23, 800 crores over the estimated food subsidy requirement under the existing
Public Distribution System and other welfare schemes. At the 2013/14 costs the Central
Governments total food subsidy will be close to Rs.125, 000 crores annually.
According to a former Governor of the Reserve Bank of India the policies (the significant
increase in rural wages triggered by the MGNREGS and inflationary implications of the
Food Security Act) aimed at inclusive growth can stoke inflationary pressures at any rate in
the short-term. "This will create demand pressures, which will inevitably spillover to market
prices of food grains. Furthermore, the higher food subsidy burden on the budget will raise
the fiscal deficit, exacerbating macro level inflationary pressures."
The WTO Director General, Roberto Azevedo, echoed the worry of the international
business when he stated that India will soon be breaching their Aggregate Measurement of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 180
Support (AMS) commitments to WTO due to its new food security programme. He stated
that some countries have expressed concern over the procurement and distribution of
highly subsidized food grains.

Mr. Azevedo wanted India to work out a strategy on its food security law ahead of the Bali
Ministerial Meeting of the WTO. He said that India should consider the 'Peace Clause'.
Under the Agriculture Agreement, the Peace Clause protects subsidies awarded by
countries who comply with the agreement, from being challenged under other WTO
agreements. Although it expired in 2003, some countries want it extended, while others
want agriculture to be brought under general WTO discipline that deals with a state's ability
to act against subsidies. Negotiations for a deal at the Bali meet were stuck over the tenure
of an interim resolution on the demand by G-33 developing countries on food security.
While the G-33 is demanding the tenure of the peace clause to be 10 years, developed
countries such as the US are ready to accept only a 2-3 year period.

Today food is treated as profit making commodity in trade and commerce. A commodity is
something useful that can be turned to commercial or other advantage or benefit. Food
should be treated as human right that it is and not as a commodity. Over-commoditization
of the global food supply is one of the most critical root causes of food insecurity.
Speculation on food as a commodity for profit keeps food out of the reach of the poor.
There is an alarming growth of corporate sector in agriculture producing bitter harvests
across the country. The massive migration of landless labourers from rural areas to the
towns abandoning agricultural sector for better employment and livelihood in cities is a call
for critical analysis of the way the nation is handling its agriculture. Alarming numbers of
suicides by farmers across the country adds to the urgency in the matter. It is in this
background that one studies the Food Act and its provisions for the advancement of
agriculture.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 181
The National Food Security Act, 2013, is touted to wipe out hunger from the face of India
and guarantee food security to all people. This grand objective is to be achieved through
revitalization of agriculture. Objectives of the National Food Security Act, 2013 vis--vis
globalization and agricultural corporatization by the Government of India in tune with the
demands of WTO seem incompatible.
The latest Asia Development Bank Report on Social Protection in Asia covering 35
countries, where it compares India with the other 18 lower middle income countries in Asia.
According to the report in lower middle income countries expenditures on social insurance,
social assistance, and labour market programmes are, on average, 3.4 per cent of GDP.
Indias is a mere half of that at 1.7 per cent. Even that low level is reached largely because of
MGNREGA, not existing food security costs. Among low income countries, the Kyrgyz
Republic (whose GDP per capita is only $871 (2009)), invests eight per cent of GDP in social
protection. Upper middle income countries spend four per cent of GDP on average, and
high income countries spend 10.2 per cent. Japan spends a massive 19.2 per cent of GDP on
social protection and China 5.4 per cent. Singapore spends more than twice as much as
India, at 3.5 per cent of GDP.
The media has criticized the cost of the National Food Security Act as excessive. While some
called it as a money guzzling measure and others viewed it as populist measures. A
former Union Finance Minister branded the Act as senseless welfarism. The Financial
Times warned This new spending will increase Indias fiscal deficit and The Economic
Times warned that the Act endangered the fiscal deficit target. One non-executive director
of Tata Steel argued Food security is important but the government needs to be able to
generate enough wealth in the country to be able to afford food security. The
Confederation of Indian Industry (CII) declared Under the present economic situation, the
government can hardly afford to allow the fiscal deficit roadmap to be compromised in any
way.
However these criticisms are highly exaggerated to portray the Act as unaffordable.
Currently India spends about 0.9 per cent of GDP on food subsidies, and with the arrival of
the Food Act that will rise to a little less than 1.25 per cent. If feeding its citizens is a priority
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 182
for the nation then the additional expenditures can be adjusted by cuts in some other
sectors. We have to keep in mind that healthy workers are essential for sustained economic
growth as well as human development.

To meet the mandate of the Food Act, the Central and State governments need to procure
a lot more food grain than they do now from our farmers and also employ imports. To be
self-sufficient in meeting food security requirements our farmers must have an incentive to
produce more: they will look for higher procurement prices and access to better farming
inputs. The Rangarajan Committee, reviewing the National Advisory Councils version of
the law, has suggested India should procure only 30 per cent of the countrys total
production from farmers or it will result in a distortion of food prices in the open market.
Knowing the factual position on procurements from farmers, food imports are here to stay.
India cannot give incentives to its farmers without falling foul of its international
commitments. If it still goes ahead, the West is entitled to retaliate with crippling trade
countermeasures. Since the developed countries do not cut their agro-subsidies, India will
also face cheap food imports muscling domestic farmers out of business.
If India starts buying grains from its farmers at well above international prices, then it acts
as an implicit incentive to the local farmer to produce more than he otherwise would. This
would squeeze out global grain suppliers. However India should contest argument on the
ground that persistently high domestic inflation makes it imperative to raise the Minimum
Support Price (MSP) for farmers from time to time. India should invoke clause 18.4 of the
Agreement on Agriculture (AoA) which says that due allowance shall be given to the
inflation factor while assessing whether the MSP violates the AoA.


One of the substantive provisions of International Food Security Treaty states in its
Fundamental Principles that free market structures are not sufficient to assure global food
security; basic guarantees of individual access to food are needed. International cooperation
and assistance may be necessary in order to implement such access in Low Income Food
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 183
Deficit countries. It is also stated therein that food may never be used as a weapon to gain
political or military advantage either within a state or as an instrument of foreign policy.
The successful implementation of the Food Act is dependent on international co-operation
and also the guarantee that the nations arms are not twisted as part of the foreign policies of
the developed nations.
There can be no two opinions about the need for the Food Security Act. All the arguments
should be the strategies in implementing the ideals enshrined therein. Financial feasibility
and international business interests are not and should not be reasons why the Act fails to
wipe out hunger from the face of India. Revitalization of Indian Agriculture in the face of
globalization and corporatization of agriculture is a serious concern that ought to be
handled with utmost seriousness.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 184
LEGISLATIVE COMMENT
THE LOKPAL BILL, 2013
S.C. ROY
INTRODUCTION:
The long awaited Lokpal Bill, passed in the Parliament in December 2013 has brought hope
of corruption free India, to the citizen. The Lokpal Bill 2013
i
seeks to provide a mechanism
to erase corruption in the public governance and the matters connected thereto. The term
Lokpal (The peoples protector and caretaker) was coined by Lakshmimal Singhvi on 13
th

April 1963 during a parliamentary debate about grievance mechanism. The Lokpal is the
Indian version of Ombudsman a Scandinavian
ii
word for a grievance man . It is a
coincidence that the son of L.M. Singhvi, Dr. Abhishek Manu Singhvi, heading The Standing
committee of parliament drafted the present bill. The historic debate on administrative
reform in 1963 has taken us back to think that even in the early days of independence
corruption was an issue though it was in a nascent stage. The present bill was tabled in
parliament in 1968, 1971, 1985, 1989, 1998, and 2001, 2011-2012 and finally it could be
passed in 2013.
This historic struggle to constitute Lokpal in Centre and Lokayukta in states shows the great
concern of the people against corruption. Here it is an appropriate place to know what
corruption is! Aristotle first used the term corruption. The term corruption comes from the
word corrupt which means guilty of dishonest practices lacking integrity , infected ,
tainted, debased in character where as corruption means to destroy the integrity of .
cause to be dishonest , lower morality , rotten , spoiled , contaminated etc.
Thus corrupt means utterly broken , valueless . Later Cicero added the terms bribe
and abandonment of good habits. It is an illegitimate use of public power to benefit the
private interest. The democracy depends upon The Government and its public offices
through which the welfare schemes reach to the last person. The welfare schemes are
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 185
administered by the chain of human system who are responsible for the development of the
all.
Here starts the endless saga of dishonest monopoly and misuse of power. Since the personal
gain or having more to oneself than others or take a drop out of the pot is inherent in
human nature. No one is free from discontentment. Corruption is rife like blade of grass .
As the length and breadth of the blade of grass varies, the corrupt practices also vary from
petty to systemic
iii
. Even the person on small rung is also indulged in receiving bribe and
malpractices. The discontentment hankering after wealth and power, barbaric nature,
callousness, fearlessness, greed, inhuman and unsympathetic approach are the root cause of
corruption. Thus when these causes find reasonable climate to grow, the result is hue and
cry all around i.e. in governance and public service and flows to private service also in the
name of better service. Thus the question raised by our Gurudev Rabindra Nath Tagore,
where the mind is without fear and where the head is held high ..
Hounds
iv
in the mind as even the judicial system is not free from smell.
As the nature of human being is to help their kith and kin violating rules/regulations
/morals, even crushing the voice of the conscience. Hence favoritism and nepotism is
rampant. It also includes casteism and religious favoritism. More so, the political favoritism
has spread everywhere the discretionary power is applied without wisdom which is utter
violation of rule of law /morals/ values/ which impairs the faith in the system. Therefore the
Lokpal has responsibility for the restoration of faith in public offices by creating and
environment of zero tolerance in corruption .

ANTI CORRUPTION LAWS IN INDIA:

Since discontentment and greed is an inherent character of human being, therefore legal
provision has been made available to curb such tendencies. The Indian Penal Code is the
forerunner. The Penal Code is against dishonest misappropriation of property
v
, criminal
breach of trust
vi
, criminal breach of trust by servant or clerk
vii
, criminal breach of trust by
public servant, or banker, merchant agent
viii
dishonestly receiving the property
ix
, cheating
x
,
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 186
dishonest concealment of fact
xi
, etc. The Prevention of Corruption of Corruption Act, 1988
specifically has been enacted consolidating and amending the law relating to the prevention
of corruption. This is the reason that section 2(c) of the Act
xii
has enumerated and included
officials under the heading public servant, despite broad provisions under section 21 of the
Indian Penal Code. Section 2(c) clause (xi)
xiii
in the Prevention of Corruption Act has added
the higher academic institution and highlighted corruption therein. Likewise in section 2(c)
(xii)
xiv
seems to be additional corollary extending the ambit of private institutions receiving
the grant from The UGC or similar institutions anyway, under the purview of the
Corruption Act. Thus section 2(c) of the Act enumerates any person remunerated by the
government, any person in the service or pay of local authority, in the service of corporation
Judge or adjudicating functions; performing any duty in connection with the administration
of justice; arbitrator, persons engaged in the election process, persons performing any
public duty, office bearers of the cooperative society, chairman, member or employee of the
service commission etc. The Act
xv
has elaborately explained under Chapter III the nature of
the offence i.e. corruption in the term of gratification (u/s 7, 8, 9), acceptance of valuable
things without consideration, criminal misconduct (u/s 11, 12, 13), as well as habitual act of
corruption. The Act has provision for the appointment of special judges (u/s 3) and the
offender shall be prosecuted as per the provisions of Cr.P.C. 1973. The special judge shall be
deemed to be a magistrate also as per section 326 and 475 of Cr.P.C. 1973.
The Right to Information Act 2005 has minimized corruption up to the extent
of disclosure of the information and the action by the CIC (Chief Information Commission).
But the accused/public servants with the fascist character harass the whistleblowers. This is
the reason that this Act is not in a position to bring transparency in public service.
Likewise The Prevention of the Money Laundering Act 2002, Central Vigilance Commission
Act 2003 have been created to curb corruption. Thus, despite these provisions available,
corruption in public office is a rule. Now the common man has no relief without any type of
gratification to the public officer. This hampered development hence social justice is crying
for New Incarnation of Lord Krishna . Hence, in this utter be- wilderness, the incarnation
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 187
of Lokpal in new form after the movement led by Shree Anna Hazare has come in the
shape of Act No.1 of 2014 as a new years gift to the citizens of India.

THE LOKPAL AND LOKAYUKTA ACT, 2014:

The preamble of the Act expresses the object and reasons of bringing this bill to ensure
justice to all by punishing the act of corruption, and prompt and fair investigation and
prosecution. As India has ratified the United Nations Convention against corruption. The
Act extends to the whole of India. The Act
xvi
has included The Prevention of Corruption
Act 1988 which is a substantive legislation to combat corruption. Therefore the term
Complaint u/s 2(e) of the Act has the same meaning here also. It also incorporates the
Delhi Police Establishment, Act 1946, The Central Vigilance Commission Act 2003, and the
Cr.P.C. 1973. The term special court u/s 2(e) has the meaning as in The Prevention of
Corruption Act1988. The term Public servants, u/s 2(o) has read with section 14 of the Act
has excluded the jurisdiction exercisable by any court or any other authority under The
Army Act 1950, The Air Force Act 1950, The Navy Act 1957 and the coast Guard Act 1978.
It has included even the Prime Minister
xvii
of the Union and other members of either of the
houses of the Parliament
xviii
. The term Lokpal has been defined as a body established u/s 3,
which shall consist of chairman and such members, not exceeding eight out of whom fifty
percent shall be judicial members. The Lokpal shall constitute two wings i.e. Inquiry wing
xix

and prosecution wing
xx
headed by The Director of Inquiry and Director of Prosecution
respectively.

The director of prosecution has responsibility to file case as per the direction of the Lokpal
before the special court and take all necessary steps in respect of the prosecution of public
servants in relation to any offence punishable under the prevention of corruption Act
1988
xxi
. The inquiry wing of the Lokpal shall consist of Delhi police as well as the central
vigilance commission the purpose of any preliminary inquiry or investigation is to furnish
information or produce documents relevant to the offence of corruption mentioned under
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 188
prevention of corruption Act 1988. The Lokpal has been authorized to order for initiation of
the prosecution and no court shall take cognizance of such offence except with the previous
sanction of Lokpal
xxii
. Hence the Lokpal itself has been authorized to decide the complaint
on the basis of inquiry and investigation as referred to the special court or not. But nowhere
in the Act has been mentioned about the CBI (central bureau of investigation). Whether the
CBI has been abolished? Whether CBI will continue to function under the aegis of the
central government? Whether there will be two channels or wings to investigate the
corruption cases as the CBI has been doing? What about the CBI court? All these answers
are absent in this Act. More so, the Lokpal has been empowered not only to decide the
matter whether instituted to special court or not at the same time, it may recommend the
government to transfer or suspend the public servant also. Although, there is adequate
provision of removal of the chairman or any member from his office by order of the
president on the grounds of misbehavior
xxiii
. But the term misbehavior has not been
explained. The completion of inquiry has to be made within 30 days
xxiv
and trial within a
year
xxv
. But the Lokpal has been given appellate authority in respect of appeal arising out of
any other law for the time being in force providing for delivery of public grievances by any
public authority in cases where the decision contains findings of corruption under the
prevention of corruption Act 1988
xxvi
has taken away the jurisdiction of supreme court but
the provisions under s. 57 is contradictory where the Act says that the provisions of this Act
shall be in addition to, and not in derogation of , any other Law for the time being in force
? More so, the Lokpal shall not inquire or investigate into any complaint, if the complaint is
made after the expiry of a period of seven years from the date on which the offence
mentioned in such complaint is alleged to have been committed
xxvii
. The Lokpal Act has
also taken away the jurisdiction of civil court in respect of any matter, which the Lokpal is
empowered by or under this Act to determine
xxviii
.
CONCLUDING REMARKS:
With the progress of democratic setup of governance, umpteen number of welfare schemes
and implementation machineries are quite obvious, since human beings have inherent
discontentment and greed, the public office and authority provide the opportunities of
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 189
gratifications of variable dimension, coercion, victimization, exploitation etc. The term
corruption expressed in the Indian Penal Code In terms of offences and in the prevention
of corruption Act1988 under chapter 3 , from Ss. 7-16. One just the result of the decrease in
morals and disintegration of personality. Even the Lokpal Act is silent about the act of
corruption to be nipped in bud. This Act has adopted the same procedure which is available
under Cr.P.C , same legislation the prevention of corruption Act 1988 , the same enquiry
and the investigation Agency the Delhi police and Vigilance and the same special court
under the prevention of corruption Act, 1988 . It has extended the sphere of public servant
including the prime minister of India but it has excluded the judiciary. More so, it has
taken away the appellate authority of the Supreme Court. Thus, in this country there will be
two parallel apex court. The CBI has not been included in the investigating wing where as
the CVC depends only on CBI. The limitation period mentioned under section 53 of the Act
also weakens the hope of the citizen for corruption free governance.
Here, it may be submitted that the act of corruption has become the way of life in the
Indian society as there is no system free from this evil; although the jurisdiction has been
expanded in the Act but the procedural gain will remain the subject of moot also as the
Lokpal has right to decide whether the case should be filed or not. Thus the director of
inquiry and investigation may function under Lokpal as today CBI functions under the
Ministry of Home Affairs and PMO . Furthermore there is no provision of appeal to the
Supreme Court for the initiation or taking cognizance of the matter. Thus, it seems that the
provision is violative of Article 32 of the constitution which is itself a fundamental right.
Whether this Act is not taking away the same? Further, India has population of 130 crores,
how can the Lokpal headed by just 8 members deal with the large scale corruption cases.
Since corruption is not the subject matter of bribery or embezzlement only. It is related to
the violation of Article 14 i.e. Rule of law also. Thus in the name of discretionary power
corruption has become a common practice in all the institutions public, private, central or
state government. Corruption is unethical, immoral, illegal practices either for personal
gains or achievement or to provide gain to the kith/ kin, political members, criminals,
bureaucrats, etc. It is also violation of human rights by anyone who is in that capacity.
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 190
Therefore the Lokpal Act requires to hit act of corruption from lower strata of
administration to upper strata. In this regard it is submitted that administrative audit at
each level of administration should be incorporated in the Lokpal Act. The administrative
audit report submitted to the Lokpal or Lokayukta should be the basis of prosecution, in
addition to the mechanism of complain, enquiry and prosecution which is traditional
technique to curb the offenders which is not successful. At the same time the human rights
audit by the human rights commission can nip in bud the act of corruption in the public
offices. The financial audit which is held too late also requires to be annual by CAG
(Comptroller and Auditor General of India) in all the sectors (either private or public). The
audit in administration of justice is also required to curb corruption. Moreso, the audit of
political parties can make the election process fair and restore trust in the representatives
who are ultimately, role model as well as the source of confidence for unethical illegal
practices in the governance. Therefore, the Lokpal is just picking the fishes through
Fishing Rod, whereas it requires repair, renovation and if necessary demolition of
confidence of the offenders from the grass root level by administrative, human rights and
financial audit annually and prosecution as per the provision within the year. The
publication of the report in the print media and discussion on the screen can curb
corruption. The Act must incorporate the professionals and their bodies, corporate sectors
under its purview. The offenders have got such a confidence that they do not care breaking
the rules, norms, even their own conscience. They have no fear of even God on the other
hand, the common man has no confidence even to initiate the courage of rising voice
against the offenders. The employees have to suffer the wrath of the Big boss everyday. It
is the first rule that boss is always correct. The second rule is that if not correct, see the first
rule. The policies and the process of appointment are also subject of concern. Thus the
Lokpal and Lokayukta Act 2014 is just a new expression of the old idea.
REFERENCE

i
The Lokpal and Lokayukta Bill 2013, now the Lokpal and Lokayukta Act no 1 of 2014 got presidential act on
1-1-2014
ii
Morris,S.D. (1991) ,Corruption and politics in Contemporary Mexico, University of Alabama Press, Tuscaloosa
iii
Systemic corruption means where corruption becomes rule rather than exception
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page 191

iv
Geetanjali
v
S.403 of the I.P.C. deals with dishonest misappropriation of property
vi
S.406 I.P.C.
vii
S.408 I.P.C.
viii
S.409 I.P.C.
ix
S.412 I.P.C.
x
S.415 I.P.C.
xi
S.417 I.P.C.
xii
The Prevention of Prevention Act 1988
xiii
S. 2(c) (xi) of the Prevention of Corruption Act 1988 reads as 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 any university or any other
public authority in connection with holding or conducting examinations.
xiv
S.2 (c) (xii) of The Prevention of Corruption Act 1988 reads as : Any person who is the office bearer of an
educational, scientific, social, cultural or other institution in whatever manner established, receiving or having
received any financial assistance from the central government or any state government, or local or other
public authority.
xv
The Prevention of Corruption Act 1988
xvi
The Lokpal and Lokayukta Act 2014
xvii
S.14(1) (a)
xviii
S.14(1) (b) and (c)
xix
S.11 of the Act
xx
s.12 of the Act
xxi
S.12(2) of The Lokpal Act 2014
xxii
S.23(2) of The Lokpal Act 2014
xxiii
S.37(2) of The Lokpal Act 2014
xxiv
S.38(2) of The Lokpal Act 2014
xxv
S.35(2) of The Lokpal Act 2014
xxvi
S.49 Of The Lokpal Act 2014
xxvii
S.53 of the Act
xxviii
S.54 of the Act
Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page A
INTRODUCTION TO THE CONTRIBUTORS
ALOKMISHRA_________________________________________________________
Professor, Amity Law School, GGSIP University, Delhi. With nearly three decades of
law teaching experience, he is an expert in public law.
ARUP PODDAR________________________________________________________
Associate Professor, The West Bengal National University of Juridical Sciences,
Kolkata. His areas of interest include Environmental Law, Agricultural Law, etc.
ATUL KUMAR PANDEY_______________________________________________
Assistant Professor, National Law Institute University, Bhopal. An engineering
graduate of IIIT Allahabad, along with MBL, Cyber Law constitutes his area of
specialization.
CHINTAMANI ROUT__________________________________________________
Associate Professor of Law, North-Eastern Hill University, Shilong, Meghalaya
(NEHU). With two decades of teaching experience in several premier institutions of
repute, Dr. Rout holds specialization in diverse areas of public law.
DEBASIS PODDAR_____________________________________________________
Assistant Professor, National University of Study and Research in Law, Ranchi;
Former Lecturer, National Law University, Jodhpur.
DEEPA KANSRA____________________________________________________
Assistant Professor, The Indian Law Institute, New Delhi. A prolific author, she
possesses books and articles to her credit. Her recent book on Preamble to the
Constitution, earned widespread apprehension in legal fraternity.



Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page B
DIPA DUBE____________________________________________________________
Dr. Dipa Dube, Associate Professor, Rajiv Gandhi School of Intellectual Property Law,
IIT-Kharagpur. Criminal Law constitutes her area of specialization. Her recent book
on rape laws earned appreciation from legal fraternity.
GARGI CHAKRABARTI________________________________________________
Assistant Professor, National Law University, Jodhpur. Intellectual Property is her
area of specialization. Before joining in NLUJ, she was associated with premier
institutions including NLSIU Bangalore.
GEORGE K. JOSE______________________________________________________
Associate Professor, School of Law, Christ University, Bangalore. With two decades of
experience in law practice, procedural laws constitute his areas of interest.
GOURISHWAR CHOUDHURI__________________________________________
He is engaged in West Bengal State Education Service. Assistant Professor of History,
Maulana Azad College, under University of Calcutta. Medieval Indian History
constitutes his area of specialization.
JAYANTA KUMAR LAHIRI____________________________________________
The author is LLM,, Ph.D was Dy. Director General, OFB under Ministry of Defence
Production. He is Guest Lecturer in Law in Calcutta University and authored the
book Lahiris Lectures on Intellectual Property Law.
K. N. C. PILLAI________________________________________________________
Former Director, National Judicial Academy, Bhopal. Former Director, Indian Law
Institute, New Delhi. Former Dean, School of Legal Studies, Cochin University of
Science and Technology. Initiated his career in law practice, Supreme Court of India.
Prof. Pillai is a veteran academician with specialization in Criminal Law.


Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page C

MALAY ADHIKARI____________________________________________________
Ph.D. Candidate in Centre for International Legal Studies, Jawaharlal Nehru
University; M.Phil. (Space Law) & M.Sc. (Physics). Previously, he was a practicing
advocate in Kolkata.
MANISHA CHAKRABORTY____________________________________________
Ms. Manisha Chakraborty, Research Scholar, Rajiv Gandhi School of IP Law, IIT
Kharagpur.
MARKUS STARKL_____________________________________________________
Dr.Markus Starkl is a Senior Researcher with the Vienna based Centre for
Environmental Management and Decision Support. He is currently co-chair of the
specialist group of Sanitation and Water Management in developing countries of the
International Water Association.
NIDHI CHAUHAN_____________________________________________________
Assistant Professor, School of Law, KIIT University, Bhubaneswar. Business Laws
constitute her areas of specialization. Her works got published in Pezzottaite Journal,
India International Journal of Juridical Sciences and GSTF (Global Science and
Technology Forum) Journal of Law and Social Sciences, Singapore.
P. SAKHTIVEL_________________________________________________________
Mr. P. Sakthivel is Assistant Professor at the Tamil Nadu Dr. Ambedkar Law
University since 2008. He obtained his Masters in Law from the University of Madras
in 2004 and earlier received Master of History from Annamalai University during
2002. His research focuses include Agriculture, Water and Sanitation Laws,
Environmental Laws and Human Rights. He has participated and presented more
than 30 papers in various national and international conferences. He has coordinated
two national seminars and two State Level workshops.

Rostrums Law Review
ISSN: 2321 - 3787

www.rostrumlegal.in/journal Page D
S. AMIRTHALINGAM__________________________________________________
Mr. S. Amirthalingam is an Assistant Professor at the Tamil Nadu Dr. Ambedkar Law
University since November 2004. He obtained Masters in Law from University of
Madras in June 2004. His research focuses include Environmental Laws, International
Trade Law and Constitutional Law. He participated and presented 40 papers in
various national and international conferences. He has coordinated two national
seminars and one State Level workshop.
S. C. ROY______________________________________________________________
Associate Professor, Chanakya National Law University, Patna. With two decades in
law teaching in several institutions of repute, he is a versatile personality in legal
academics.
TAPAN R. MOHANTY_____________________________________
Associate Professor of Sociology, National Law Institute University, Bhopal. He is a
life member of Indian Sociological Society and Indian Society of Criminology
besides being a member of Research Committee on Sociology of Law of
International Sociological Association (Madrid, Spain).


ALKEMIAL LEGAL EDUCATION VENTURES PVT. LTD.
B-3, VARDHMAN GREEN PARK ASHOKA GARDEN
BHOPAL, MADHYA PRADESH
j our nal @r ost r uml egal .in
www.r ost r uml egal .in/ j our nal