Académique Documents
Professionnel Documents
Culture Documents
Vol. No. I
Issue No. I
Feb. 2010
EDITORIAL COMMITTEE
Editor-in-Chief
D. S. Sengar
Director
Executive Editor
Vishnu Konoorayar
Asst. Research Professor
Editors
Slahuddin Ahmad
Sreeparvathy G.
Sridip Nambiar
Latika Vashist
Saadiya Suleman
Samreen Hussain
Jupi Gogoi
Anubha Dhulia
February 2010
Issue 1
CONTENTS
ARTICLES
Paradigm of Green Adjudication:
Developing Principles for Indian
Environmental Decision-Making in
Disputes Involving Scientific Uncertainty
Rethinking Reservation in Higher
Education in India
Atrocities on Dalits- A Human Rights
Perspective
Cybersquatting: Pits and Stops
NOTES
Freedom of Religion and Anti Conversion
Laws in India: An Overview
Triple Talaq: A Socio Legal Analysis
Concept of Human vis--vis Human
Rights: An Analysis
Laws on Food Adulteration: A Critical
Study with Special Reference to the Food
Safety and Standards Act, 2006
COMMENTS
Acknowledging Accountability?
A Comment on Secretary General,
Supreme Court of India v. Subhash C.
Agarwal
A Comment on Shakson Belthissor v. State
of Kerala and Another
Sridip Nambiar
Mehbubul H. Laskar
25
Ajay
Slahuddin Ahmed
54
79
Saadiya Suleman
Samreen Hussain
106
129
Sreeparvathy G.
151
Anubha Dhulia
163
189
V. Elan Chezhiyan
198
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2010]
[Vol. 1 : 1
The aspects of risk in a different scenario are dealt in Louis Amoore and Mariekede Goede (eds.), Risk and the War on Terror (2008).
3
Ibid. The element of risk can be analysed with respect insurance sector, financial
markets and even war on terror (as is shown in Supra note 2).
4
Ibid.
5
Lawrence C. Becker & Charlotte B. Becker, Encyclopedia of Ethics 1513 (2001).
6
Ibid.
7
Similar to the opposition to hedonistic pain and pleasure theory of utilitarianism.
8
Supra note 1.
9
Ibid.
2010]
[Vol. 1 : 1
2010]
19
Ibid.
A discussion paper dated Sep. 17, 2009 was issued for eliciting public comments.
21
National Green Tribunal Bill, 2008 has been referred to a parliamentary standing
committee.
22
Supra note 10.
20
[Vol. 1 : 1
23
2010]
Virender Gaur & Ors. v. State of Haryana & Ors., (1995) 2 SCC 577.
Mrs. Susheta v. State of Tamil Nadu & Ors., (2006) 6 SCC 563.
31
Murli Deora v. Union of India, (2001) 8 SCC 765.
32
Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and
Bangladesh (2004).
33
Infra note 43.
34
Mukesh Textile Mills Pvt Ltd v. H.R. Subrahmanya Sastri, AIR 1987 Kant. 87.
35
Usually referred to in the context of constitutional interpretation.
36
In M.C Mehta v. Union of India, (1986) 2 SCC 176, popularly known as oleum
gas leak case. The case dealt with the aspect of permission to continue for a factory,
from which there was a fatal leakage of hazardous substances. Experts suggested
relocation as the only measure to completely eliminate the risk.
37
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P.
Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718 (hereinafter referred to
as Nayudu I),
38
ICELA.
39
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
30
[Vol. 1 : 1
2010]
10
[Vol. 1 : 1
2010]
11
unhesitatingly by the courts. It is this attempt to create a parallel rulebased structure using the machinery of public interest environmental
litigation that raises doubts about ordinary courts institutional
competence and compels us to look for alternatives. This was stressed
in Nayudu I, which prompted the law commission to suggest setting up
of environmental courts in the country.61
However, it cannot be concluded that ordinary courts are incapable
of handling environmental disputes. However, it could be inferred
from the decisions that administrative matters are entrenched in any
environmental decision making process.
Better institutional
mechanisms that combine the judicial and administrative activities on
a comparative level may be possible.
In any institutional mechanism that has delivery of justice as its
primary aim, decision makers with ethical ingenuity are highly
desirable especially when analysing rival scientific opinions in the
context of risk acceptability. If we can draw out the contours of this
individual dimension within an institutional structure, we can have
more clarity on the total functioning of a system.
To conclude, Indian judiciarys efforts to revitalize environmental
discourse through creative decisions are commendable, but it also
reminds us of the urgent need to rethink our strategies in dealing with
these problems. The problem is that even when judges review quite
good evidence, there are numerous opportunities for errors.62
Moreover, increased recognition of the importance of international
environmental law institutional recognition at international level has
not had a corresponding impact on the modus operandi at the
municipal level.63 An essentially universal concern has thus been
politically delimited there is no platform for a [t]hink global, act
local approach. Thus, our problems are a combination of institutional
incapacities existing in the country and a lack of conceptual clarity at
the decision making level owing to inadequacy of directional policy64.
61
12
[Vol. 1 : 1
2010]
13
14
[Vol. 1 : 1
Ibid.
Discussion paper on NEPA at 10.
78
In the Discussion Paper on NEPA, which would be an autonomous statutory
authority, MoEF proposed three models involving: (1) MoEF (which would grant
regulatory clearances), a new National Environment Monitoring Agency (for
checking compliance and enforcement), and NGT for adjudication; (2) MoEF (for
legislation and policy), a full fledged NEPA (that subsumes pollution control boards
and has technical, regulatory and compliance responsibilities) and NGT; (3) MoEF,
NEPA (with pollution control boards reporting to MoEF and having regulatory and
compliance responsibilities), and NGT ; (4) MoEF, NEPA (with a separate pollution
control board reporting to it) and NGT.
77
2010]
15
79
New Zealand has made an almost successful attempt with its Resource
Management Act. However, there are other jurisdictions, like Indiana that has carried
out successful experiments with administrative adjudication, though sustainability
has not been incorporated in any legislation. For more on Indiana experiment, see
Lori Kyle Endris & Wayne E. Penrod, Judicial Independence in Administrative
Adjudication: Indianas Environmental Solution, 12 St. Johns Journal Legal
Commentary l25 (1996).
80
Australia has a Land and Environment Court.
81
The necessity and various technical aspects of such legislation are outside the
scope of this paper. For a discussion on the role of State, see Mary Christina Wood,
Advancing the Sovereign Trust of Government to Safeguard the Environment for
Present and Future Generations (Part I): Instilling a Fiduciary Obligation in
Governance, 39 Environmental Law 43 (2009).
82
Supra note 10.
83
Ibid. Fisher states that it reflects, however, the more traditional concepts of
constitutionalism, which is that constitutionalism is concerned with the constituting
16
[Vol. 1 : 1
the two paradigms that Fisher emphasizes on (i) the rationalinstrumental paradigm (where public administration would be required
to strictly apply legislative will), and (ii) the deliberative-constitutive
paradigm (where public administration will be granted discretion to
address specific problem-solving situations).84 It may be a
combination of these paradigms in the NGT that could improve its
efficiency.
In this scenario, it is to be ensured that administrative adjudication
carries the same indicia of reliability and fairness found in other
judicial settings. In India, with respect to NGT, this would mean the
following:
(a) The Constitution of NGT - There are two aspects of constitution
that are relevant - nature of constitution and membership. Sitting
and retired high court and Supreme Court judges are eligible to be
its members. The nature of disputes that the NGT may be called
upon to decide may not necessarily be from similar areas in which
the members have an expertise in.85 The nature of disputes may
comprise of a variety of areas. The option here is to either create
ad-hoc tribunals for disputes (which may be location-specific) or
vest in the NGT powers to seek assistance of experts or
committees if it requires.86 This may appear to be similar to the
practice we have today of green benches seeking help from expert
committees. However, such green benches have today become
methods for administration of environmental resources. It is not
desirable to vest in our courts the duty to manage our neither
resources, as they may not have the time or resources to effectively
conduct it. Membership is another important aspect. The expert
member can be a person with administrative experience in
and limiting of government so as to ensure its principled operation where there are
divergences of opinions as to what this means and entails
84
Supra note 10.
85
As pointed out in the legislative brief brought out by PRS Legislative Research,
our experience with the National Environment Appellate Authority shows that it is
difficult to find people with the prescribed qualification. The Delhi High Court had
to issue directions on the basis of a petition for appointment of a member using its
powers under Article 226 of the Constitution in Vimal Bhai v. Union of India, 158
(2009)
DLT
477.
The
brief
can
be
accessed
at
http://www.prsindia.org/uploads/media/Green%20Tribunal/Final%20Version%20%20National%20Green%20Tribunal%20Bill.pdf.
86
Clause 4(2) of the NGT Bill provides for such consultation.
2010]
17
18
[Vol. 1 : 1
2010]
19
92
20
[Vol. 1 : 1
Participation at the relevant level is endorsed by the Rio Declaration and the
Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters, available at www.unece.org/env/pp.
97
After the decision in L. Chandrakumar v. Union of India, JT 1997 (3) SC 589,
which was suggested to be reconsidered by a larger bench by the law commission in
its 215th report.
98
Herbert Girardet (ed.), Surviving the Century Facing Climate Change and Other
Global Challenges (2007).
2010]
21
decisions. But, is there an ethical residue in the law behind the all
concealing veil of formal legality?99
Though its impact on decision-making cannot be predicted,
environmental ethics can form a firm basis for decision making.100 The
constitution of the NGT consists of a Judicial Member and an Expert
Member (who may be a scientific expert or an administrative officer).
Can we outline the ethical basis of their decision-making process?
1. The Judicial Member
A sitting or retired judge of the Supreme Court or High Court is
qualified to be appointed as a Judicial Member of the NGT.101 He
would be a person who has a wealth of experience and competence on
the aspect of deciding disputes in an adversarial system, but who
would also have been conditioned by the institutional memories of the
court where he was serving. We should keep such conditioning in
mind when prescribing any role for the judges based on ethics.
Undoubtedly, adjudication ought to be rational and legitimate.
Both these conditions define our expectations from a judge. The
paradigm of a rational decision is one reached according to rules,
principles or standards. As rules have to meet certain formal
expectations of language and authority (legislation has to be clear, as
far as possible), they cannot be considered to have a major role in an
ethics discussion. What we are concerned with are principles102 and
guiding standards103 in the process. Ecological justice must be the
basis of principles and standards used in environmental cases.
The fact that adjudication is value-laden is undeniable. It is said
that, even elementary instances of rule interpretation and
99
22
[Vol. 1 : 1
2010]
23
There are many possible approaches like peer review and laying down standards
of general acceptance. For more see Mark R. Patterson, Conflicts of Interest in
Scientific Expert Testimony, 40 William and Mary Law Review 313 (1999).
110
Devesh Kapur and Pratap Bhanu Mehta, Public Institutions in India
Performance and Design (2005).
24
[Vol. 1 : 1
111
2010]
25
I. Introduction
EDUCATION IS the most potent mechanism for the advancement of
human beings. It enlarges, enriches and improves an individual's
image of the future. It emancipates the human beings and leads to
liberation from ignorance. A man without education is no more than an
animal. It is said that in the twenty first century, 'a nation's ability to
convert knowledge into wealth and social good through the process of
innovation is going to determine its future, 'accordingly twenty first
century is termed as century of knowledge.
Educational institutions are those sacred places where the youth
acquire knowledge and wisdom; who in turn determine the future of a
nation. It is the number of educational institutions and their quality,
which to a great extent, determine the progress of a nation. The
educational institutions collectively work as the backbone of a
developed nation. Every educational institution has to maintain certain
standard of education. It is this standard which determines the level of
prosperity, welfare and security of people. It is also interlinked with
the development of nation in general.
Education is now charged with responsibility for what is referred to
as human capital formation or human resource development. This
task is guided by the assumption that in every society there is a limited
pool of individuals with a high level of intelligence, spread across all
26
[Vol. 1 : 1
Suma Chitnis, Higher Education, in Veena Das (ed.), The Oxford India
Companion to Sociology and Social Anthropology 1050 (Oxford University Press,
London, 2003).
2010]
27
device, and a few are introduced to appease the agitators or those who
are on fast unto death.2
It is to be remembered that education, particularly higher education,
in India has been charged with the responsibility of providing suitably
trained man-power, and for generation as well as transfer of
knowledge required for the country to keep pace and compete with
technological advances in the developed countries of the world. Higher
education in independent India is expected to develop, within a few
decades, knowledge and capabilities of a quality and level that the
developed countries have reached through a process that has stressed
over two centuries. But the task seems to be difficult because of the
massification of higher education, the burden of the policy of
reservation, and the inadequacy of resources to maintain and upgrade
facilities as needed.3
In such circumstances, surprisingly, the Supreme Court of India on
April 10, 2008, in its landmark judgment in Ashok Kumar Thakur v.
Union of India & others,4 upheld the government move for initiating
27% OBC quotas in all government funded institutions, including
institutions of higher education. As a result of this, the government is
now in a position to reserve upto 49.5% of the seats in all central
universities, prestigious professional schools, and elite colleges, such
as the Indian Institute of Technology (IITs), Indian Institute of
Management (IIMs), National Institute of Fashion Technology (NIFT)
and government medical colleges etc.
Now, some of the most important and vital questions that arise are:
Whether reservation in higher education will result in compromising
with the quality of education? Whether reservation in higher education
will benefit the nation in the long run? Would it not amount to a
national loss in terms of brain drain and the loss of billions of dollars if
middle class parents are forced to send their wards in foreign
universities? Would it not deprive the really meritorious and talented
from access to quality education?
28
[Vol. 1 : 1
This paper makes an attempt to look into the intrinsic value of these
questions and try to sort out the best possible answers for the same.
The present paper critically evaluates the reservation policy; its
necessity, constitutional permissibility, impact on the standard of
education and also seeks to advance certain alternative suggestions to
do away with reservation in higher education.
II. Concept of Education and Higher Education
Education is difficult to define because the concept entails varied
aspects of knowledge, which can be passed on in various forms,
including oral, written or behavioural. It also includes various forms of
passing on information. However, education has been defined as,
training and instruction designed to give knowledge and develop
skills.5
United Nations Economic Social and Cultural Organisation
(UNESCO) has given a comprehensive definition of the term higher
education. UNESCO notes that higher education includes, all types
of studies, training, and training for research at the post-secondary
level, provided by universities or other educational establishments that
are approved as institutions of higher education by the competent State
Authorities.6
Higher education is considered throughout the world to be the key
to both individual and societal aspirations. For individuals, education
beyond the secondary level is assumed to be the way to social esteem,
better paying jobs, expanded life options, intellectual stimulation and
frequently a good time in the pursuit of any or all of the above. For
societies, higher education is assumed to be the key to technology,
productivity and other ingredients of international competitiveness and
economic growth. It is believed to be a major engine of social justice,
equal opportunity and democracy.7
2010]
29
Marc Galanter, Who are the Other Backward Classes: An Introduction to the
Constitutional
Puzzle
1812,
available
at:
http://marcgalanter.net/Documents/papers/scannedpdf/WhoAretheOtherBackwardClasses.pdf.
9
Jotiba Govindrao Phule, also known as Mahatma Jyotirao Phule was an activist,
thinker, social reformer, writer, philosopher, theologists, scholar, editor and
revolutionary from Maharastra, India in the nineteenth century.
30
10
[Vol. 1 : 1
Rajarshi Shahu, also known as Shahu Maharaja (July 26, 1874-May 6, 1922) was
the first Maharaja of the Indian Princely State of Kolhapur during 1884-1922.
11
The Montagu-Chelmsford reforms were introduced by the British Government in
India to introduce self-governing institutions gradually to India.
12
The Poona Pact refers to an agreement between the lower caste untouchables (then
called depressed classes, now referred to as Dalits) of India led by Dr. B.R.
Ambedkar and the upper-caste Hindus of India that took place on 24 September,
1932 at Yerawada Jail in Pune, India.
2010]
31
32
[Vol. 1 : 1
Nothing in this article shall prevent the state from making any
special provision for women and children or for scheduled castes
or backward tribes, for their advantage, safeguard or betterment.
However, B. R. Ambedkar16 was not in favour of this provision as
he took the view that such a provision would result in further seclusion
of SCs and STs resulting in a separate but equal treatment that was
not in their interests. In the opinion of Dr. Ambedkar:
The object which all of us have in mind is that the general public, for
instance, none of us, I think, would like that a separate school should
be established for the scheduled castes when there is a general school
in the village open to the children of entire community. If these words
are added, it will probably give a handle for a state to say, Well, we
are making special provision for the scheduled castes. To my mind
they can safely say so by taking shelter under the article if it is
amended in the manner the Professor wants it. I, therefore, think that it
is not a desirable amendment.17
Thus, it is clear that Dr. Ambedkar, the chief architect of Indian
Constitution, didnt consider any special provision for reservation in
respect of education for he believed that it would rather lead to further
segregation of the society in the name of castes. His belief seems to be
correct to a great extent in modern time as learned author R.L.
Chaudhari has observed, Regarding the caste and reservation policy,
it can be said that the privileges attached to castes have encouraged
casteism since caste is proving very beneficial to the person
belonging to backward castes. Not only this, there is a general desire
for the enrolment in the list of scheduled castes and backward classes
even among those who are advanced and who have rejected the caste
system for other purposes. Thus, the reservation policy, instead of
removing the caste distinctions has maintained and has encouraged
social tensions which retard process of social integration. It has also
created obstacles in achieving the object of classless society in
India.18 While such a provision was rejected outright by the
Constituent Assembly, it was introduced in the Constitution by way of
the Constitution (First Amendment) Act, 1951 in order to nullify the
16
2010]
33
19
34
[Vol. 1 : 1
22
23
2010]
35
36
[Vol. 1 : 1
The four social criteria were: being considered socially backward by others;
dependence mainly on manual labour for livelihood; percentage of males and
females getting married at an age below 17 years being higher than the state average;
and, participation of females in work being less than the state average. The three
educational criteria were: number of children in the age-group of 5-15 who never
attended the school being at least 25% above the state average; dropout rate of
students in the age-group of 5-15 at least 25% above the state average; and the
proportion of matriculates being 25% below the state average. The four economic
criteria adopted were: average value of assets being at least 25% below the state
average; the number of families living in kuchcha houses being atleast 25% above
the state average; source of drinking water being beyond half a kilometer for more
than 50% of the house-holds; and, the number of house-holds having taken
consumption loans being atleast 25% above the state-average.
2010]
37
38
[Vol. 1 : 1
2010]
39
40
[Vol. 1 : 1
2010]
41
v)
42
[Vol. 1 : 1
42
2010]
43
These commissions have been set up as National Legal Advisory Body to advise
the government on broad policy issues and level of development of SCs and STs
respectively.
45
See schs. V and VI to the Constitution of India.
46
See art. 275(1) of the Constitution of India.
44
[Vol. 1 : 1
2010]
45
46
[Vol. 1 : 1
2010]
47
Supra note 2.
The Universal Declaration of Human Rights adopted in 1948.
58
Adopted in 1960.
59
Adopted in 1966.
57
48
[Vol. 1 : 1
See Avinash Singh Bagri & Othrs. v. Registrar, IIT Delhi & Anr., 2009(11)
SCALE 535.
2010]
49
could be the real treasure of our country. This also clearly shows the
violation of right to education of the students belonging to general
category who, in spite of their merit and eligibility, fail to get seats in
the institutes of higher education only because of the fact that they
belong to general category.
Two Major Demerits of Reservation
Apart from various other demerits, I would like to mention the two
most significant demerits of the reservation policy:
i) Reservation hampers the intellectual development of backward
classes: The general mode of selection observed in
colleges/universities is either the marks scored by the students in
the last examination or their marks in an entrance examination
conducted by the colleges/universities. But, in keeping with the
reservation policy, the colleges/universities demarcate different
qualification levels or cut-off marks. The backward classes
have lower cut-off marks as compared to general category
students. But the reduction of cut-off marks only hampers the
development of backward classes themselves. It reduces the
competitive spirit in them. By doing it, the government seems to
tell them that they can just sit back and score just the required
minimum, because for them, caste and not marks, is the ticket to
enter the colleges/universities of their choice. In this regard,
Professor Paramananda Singh says, What is needed today is that
the state should divert more and more of its resources to increase
the overall competitiveness of the beneficiaries rather than stick
to reservation as the only best means to promote equality.61
Reservation may have been theoretically aiming at equality, but
in practice, it is far from the very idea of equality. Rather, it
enhances inequality among the different classes in the society
and is against the philosophy of common brotherhood.
ii)Reservation hampers progress: Reservation was undertaken with
an additional goal in mind- that of trying to aid progress of
society by pulling up even the weakest sections of the society.
61
50
[Vol. 1 : 1
2010]
51
in the modern time, the determination of the backward class has itself
become a matter of huge controversy. Therefore, first of all, proper
procedure and criteria should be laid down to determine the real
backward classes of the society who need special attention. Caste
should not be considered as relevant criteria for determination of
backwardness as it is against the constitutional principle. Rather
poverty, geographical location, educational level and occupation may
be considered as relevant criteria. A statute in this regard is the need of
the time to avoid arbitrariness and confusion in the determination of
backward classes. The Law Commission of India, the National
Commission for Scheduled Caste and Scheduled Tribe and the
National Commission for Backward Classes can successfully help in
framing a statute in this regard.
Permissible reservation at the lowest or primary rung is a step in the
direction of assimilating the lesser fortunate or backward classes in the
mainstream of society by bringing them to the level of others which
they cannot achieve unless protectively pushed. Once that is done the
protection needs to be withdrawn in the own interests of the
protected so that they develop strength and feel confident of stepping
on higher rungs on their own legs shedding the crutches. Pushing the
protection of reservation beyond the primary level only keep the
cripples, crippled forever.62
Thus, the primary duty of the state is to provide quality primary and
secondary education to all children, especially the children belonging
to backward classes. A recent World Bank study has revealed the poor
condition of Indias primary and secondary education.63 The report
brings to light the poor gross enrolment rate (GER) of students at the
secondary level. The report reveals grim overall GERs for Bihar
(21%), Rajasthan (43%), Chhattisgarh (44%), Uttar Pradesh (49%),
and even Haryana and Punjab, which have only about 50% GERs at
lower secondary level and lesser enrolments of 32% and 28%
respectively at upper secondary level. The report further reveals that
only 65% of the villages have schools within 5 km radius as prescribed
by the government. In 35% villages, secondary school students have to
commute for more than one hour to attend school. At upper secondary
62
63
52
[Vol. 1 : 1
level, only 635 villages have schools in the listed 10 km radius. Even
in high-income states like Haryana, Punjab and Himachal Pradesh, 19,
17 and 5 percent villages, respectively, do not have accessible
secondary schools.
The report clearly reveals the poor and deplorable state of Indias
primary and secondary education. Thus, what is needed is not
reservation in higher education but accessible and quality primary and
secondary education so that the students belonging to backward
classes can also successfully compete with other students and thereby
further enhance their intellectual capacity.
Moreover, it is to be remembered that backwardness is also closely
related to poor economic condition. Hence, the right approach would
be to provide scholarships and other financial assistance at the higher
level of education to the meritorious students belonging to backward
classes rather than forcing reservation.
In order to make the students belonging to backward classes
natural competitors, coaching schools and institutes should be
established and free coaching should be provided to them. It is high
time that the society should stop underestimating the calibre and talent
of the students belonging to backward classes by providing further
reservation.
In fact, reservation can never be a substitute for the upliftment of
the weaker sections on the social and economic plane. Reservation was
meaningful at the commencement of the Constitution as a temporary
measure, at a time when the state was required and expected to
promote with special care, the educational and economic interests of
the weaker sections of the people, and in particular the scheduled
castes and scheduled tribes. The Constitution did not envisage nonimplementation of the directive principles of the policy set out in
articles 41, 45 and 46 even after sixty years and continuing reservation
indefinitely. Sixty years is too long a period to continue reservation
without undertaking promotion of the educational and economic
interests of the weaker sections in a time bound manner. Neglecting
educational and economic interests of the backward classes and
continuing to provide only reservation is against the tenor of the
2010]
53
64
P.P. Rao, Right to Equality and Reservation Policy, 42 JILI page no. 2000.
AIR 1997 SC 788.
66
See also, Preeti Sagar Srivastava (Dr.) v. State of M.P, AIR 1999 SC 2894.
67
Supra note 62.
65
54
Atrocities on Dalits
[Vol. 1 : 1
I. Introduction
IN THE worlds largest democracy the caste based discrimination has,
for centuries, remained a haunting experience for a large populace of
the society. The members of this large segment known as
Untouchables were considered as lesser human beings and therefore
considered unfit for any human rights and were in fact denied even
the right to be human. They were believed to be the recipient of severe
social disabilities, slavery and indignities. The constitutional framers
of our Constitution were well aware of the discrimination faced by the
scheduled castes so they provided fundamental rights coupled with
positive discrimination to eliminate all kinds of discrimination. In
addition to that protective legislations have been enacted to eradicate
social prejudices and atrocities against dalits. Despite the
constitutional protections and benefits in form of equal rights and
2010]
55
affirmative action and the protective laws enacted for the protection
and upliftment of dalits, the caste based discrimination is still
persisting and the dalits are frequently being made targets of physical
and sexual violence. The foolproof recipe of equality has done little to
mitigate the age old oppression and exclusion for over 167 million
dalits.1 Atrocities are day to day phenomena and dalits are facing
indignities and discrimination due to various historical, social and
economic reasons.
This article seeks to analyze the phenomena of increasing and
perpetuating atrocities on the dalits which result in gross violation of
their human rights and to identify the reasons for perpetuating
atrocities despite the safeguards provided under the law. It further
seeks to analyse the law relating to atrocities and that whether it has
become successful in preventing atrocities, and if not, then what are
the reasons for such failure. Part II of the article makes an analysis of
the historical evolution of the caste based discrimination and how the
caste system resulted into caste prejudices further resulting in caste
disabilities and how the Hindu scriptures sanctified the caste based
discrimination. Part III focuses on the legal safeguards provided to the
scheduled caste under the Constitution of India and protective
legislations enacted for the protection and upliftment of dalits
especially the anti-atrocities law. Part IV deals with the phenomenon
of perpetuating atrocities despite the formal protections under the law
and the end result in form of human rights violations of dalits. It
further identifies the causes of the atrocities and also analyses the role
of the state, especially the police, in perpetuation of atrocities and the
attitude of the judiciary towards the causes of dalits and how the caste
affiliations and prejudices are enforced through state machinery. This
part further explores the recent trend to deal with the caste based
discrimination at the international level and the domestic opposition to
the same; the claims why caste based discrimination should not be
addressed in the international fora and whether such claim is having
any rationale or not. Part V concludes by pointing out to the factors
liable for perpetuating atrocities and by suggesting measures which
1
See Smita Narula, Equal by Law Unequal by Caste: The Untouchable Condition
in Critical Race Perspective, 26 Wis. Intl. L. J. 255 (2008).
56
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2010]
57
Patrick Olivelle, Manus Code of Law 388 (Oxford Univ. Press, New Delhi, 2006);
Manu Smriti, chapter I, verse 31.
8
Id., at 397, chapter I, verse 87-91: To Brahmins, Brahma assigned reciting and
teaching of Vedas, offering of sacrifices and receiving and giving gift; to Kshatriya,
he allotted protecting the subjects, giving gifts, offering sacrifices, reciting the Vedas
and avoiding attachments to sensory objects; to the Vaishya, looking after animals,
giving gifts, offering sacrifices, reciting the Vedas, trade, money lending and
agriculture, and to the Shudra, the lord allotted a single activity, the ungrudging
service of the other three Varnas. These four classes have to work within their own
spheres of work assigned to them.
9
P.V. Kane, History of Dharamashastras 163 (1974) as quoted in Infra note 11.
10
See D. Raja, Dalit Question and Caste-Class Issues, 45(18) Mainstream 11
(2007).
11
T.R. Naval, Law of Prevention of Atrocities on the Scheduled Castes and
Scheduled Tribes 6 (Concept Publishing, New Delhi, 2001).
12
Id. at 5.
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59
the Hindu social order the shudras and untouchables were considered
as highly defiling and unworthy of any rights but only recipient of
severe disabilities.18 Their overall backwardness made them vulnerable
to humiliations, slavery, indignities and atrocities. The untouchability
so faced by the untouchables was no lesser grave than the slavery
experienced by the blacks and the only difference between the two
was that the latter was not sanctioned by the religious scriptures, but
the former was an integral part of the Hindu religion. 19 The only idea
behind this graded inequality was to establish upper caste hegemony in
the society as the caste based discrimination and the caste superiority
was to maintain such hegemony and was backbone of the upper caste
domination.
III.Caste Atrocities and the Law
Our Constitutional Framers of our Constitution were well aware of the
discrimination meted out by the dalits due to the institutionalised caste
system in the Indian society. Dr. B.R. Ambedkar analysed the
dichotomy of the caste system and existing inequalities in the socio
economic sphere of the Indian society. He observed that:
On the social plane we have an India based on the
principles of graded inequality, which means elevation of
some and degradation of others. On the economic plane we
have a society in which there are some who have immense
wealth as against many who live in abject poverty.20
Dr. Ambedkar was of the view that the vested interests of the caste
Hindus i.e. desired monopoly over the social, economic, cultural and
political resources of the community are involved in the observation of
the untouchability. The end custom of untouchability was going on for
centuries basically because the exploited untouchables did not oppose
18
K.I. Vibhute, Right to Live with Human Dignity of Scheduled Castes and Tribes:
Legislative Spirit and Social Response- Some Reflections, 44 JILI 469 (2002).
19
Shailendra Kharat, Dalits and Human Rights, 9 (2) Journal of Institute of
Human Rights 56-57 (2006).
20
Supra note 10 at 10.
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21
2010]
61
compensating them for the past prejudices meted out by them from
centuries.25
Article 17 abolishes the age old practice of untouchability due to
which the dalits had to face many humiliations and denial of rights.
Untouchability has been made an offence punishable by law.26 Justice
Ramaswamy in State of Karnataka v. Appu Balu Ingale27 stressed that
the Constitution and its protection bore behind its monstrous
untouchability relentlessly practiced for centuries dehumanizing the
dalits. In a continuing effort to ensure that the aims of article 17 are
fully realized, Parliament came out with the Untouchability (Offences)
Act, 1955.28 The Act confers civil rights and provide for redressal of
the violations of such rights arising out of untouchability.
Keeping in mind the impact of religion on the lives of the people in
this country and specially the impact of religion on the practice of
untouchability, the right to religion has been subjected to other
provisions of Part III that seems to suggest that the practice of
untouchability cannot be justified in the name of religion. So the
secularist principle underlying the Constitution appears to tear down
the seemingly impregnable walls of separation among Hindus.29
To break the notion of ungrudging service of the upper castes by
the lower castes, article 23 the Constitution prohibits bonded labour so
that their exploitation by the upper caste people can be eliminated. To
provide the scheduled castes political representation, the constitution
provides reservations in the elections to the Union Parliament, State
Legislative Assemblies, Panchayats and Municipal Committees.30 The
dalits are further provided with reservations in Union and State
services to uplift the dalits economically. All these aim to help remove
25
62
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63
64
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44
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65
Id., s. 19.
Id., s. 21.
66
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60
2010]
67
Murder and Mayhem, The Hindu, December 14, 1997, as cited in supra note 2 at
60.
63
Dalits Atrocities: September to December 2005, Human Rights News Bulletin,
available at: http://www. indianet.nl/dalitatroc0509.html (visited on Nov. 14, 2009).
64
Justice
for
Dalits
Still
a
Dream
available
at:
http://www.hinduonnet.com/2006/05/11/stories/htm (visited on Oct. 12, 2009).
68
Atrocities on Dalits
[Vol. 1 : 1
65
2010]
69
Ibid.
Supra note 25 at 159. (A 1978 survey revealed that over 70% of the population
believed the police to be corrupt).
69
Supra note 13 at 33. (Study conducted by NGO Navsarjan in the State of Gujrat).
70
Id. at 25.
68
70
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71
72
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study also nullifies the common perception that inefficiency in antiatrocities law is due to false complaints being lodged or compromise
between the parties, but in reality it is the state complicity that has
rendered the Act ineffective.76
Further, the special courts77 constituted under anti-atrocities law
cannot take cognizance of cases of atrocities as a court of original
jurisdiction unless the case is committed to it by a Magistrate as
required under Code of Criminal Procedure, 1973.78 The Judiciary has
time and again reiterated this requirement as to committal of a case to
the court of sessions under the anti-atrocities law. In Gangula Ashok v.
State of Andhra Pradesh,79 the Supreme categorically said that section
193 of the Code imposes an interdict on all the courts of sessions,
unless expressly exempted by the Code itself or by any other law,
against taking cognizance of any offence as a court of original
jurisdiction. The object as to the speedy disposal of cases stands
defeated as, in the absence of any special procedure prescribed under
the anti-atrocities Act, the special court has to follow the ordinary
procedure of taking cognizance which is prolonged and arduous.
Thus the state, which must act towards protecting the rights of
dalits, is in fact, hindering the peaceful exercise of their rights either
through its active participation in the incidents of atrocities or through
its connivance. The state, which must act towards the realisation of the
social justice for this underprivileged class, is deviating from its path
by conniving in the atrocities on dalits.
Caste-Race Issue
The new emerging trend which is being seen in the international arena
is to recognise caste-based discrimination as equivalent to racial
76
2010]
73
How India Flip-Flopped over Caste and Race at UN, Times of India, Oct. 4,
2009.
81
Ram Puniyani, UN Anti-Caste Charter: Annihilation of Caste, available at:
http://www.pluralindia.com/issues-in-secular-politics.php?id=233 (visited on Nov.
23, 2009).
82
Article 1 of the Convention on Elimination of All Forms of Discrimination defines
Racial Discrimination to mean- any distinction, exclusion, restriction or
preference based on race, colour, descent or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedom in the political,
economic, social, cultural or any other field of public life.
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the atrocities are every day affair. The population of dalits in India
equals more than half the population of the United States. A majority
of dalits live on less than US $1 per day.83 According to the National
Campaign on Dalit Human Rights, 27 atrocities are committed against
dalits every day, 13 dalits murdered every week, 5 dalits homes or
possessions burnt every week, 6 dalits kidnapped or abducted every
week, 3 dalit women raped everyday, 11 dalit beaten everyday and a
crime is committed against a dalit every 18 minutes in India.84 So
there is every reason for dealing with caste discrimination at the
international level keeping in mind the states failure in protecting the
human rights of dalits in India.
Even in 1965, India itself proposed the amendment in the CERD to
include descent. K.C. Pant while moving the amendment admitted
that certain groups of the same racial stock and ethnic origin as their
fellow citizens had for centuries been relegated by the caste system to
a miserable and downtrodden condition.85 But after that (especially
since 1996), India took the stand that caste based discrimination does
not fall within the scope of the CERD. In its concluding observations
the Committee on CERD recommended that the Indias next report
should include the information regarding the implementation of
measures for the protection of the Scheduled Castes.86 But the
government never changed its stand which is quite unfortunate.
Further, the political-cum-religious groups like BJP and RSS are
coming into opposition of this issue. Their opposition to this issue is
quite explicable as their politics is based around the goal of Hindu
Rashtra.87 The caste is an inseparable part of Hindu society and such
attacks on and recognition of caste based discrimination at the
international level is very much an issue for opposition by a political
party like BJP. So the inherent vested interests are coming in
opposition of the caste-race issue. As rightly pointed out by the NHRC
it is not so much the nomenclature of the form of discrimination that
83
2010]
75
must engage our attention but the fact of its persistence that must
cause concern.88 The attention must be given to the gravity of the
caste-descent based discrimination and the growing human rights
violations of the scheduled castes in India and steps must be taken at
the international level to tackle with the problem rather than
concentrating more on the nomenclature of the form of discrimination
i.e. caste or race.
V. Conclusion
The caste based atrocities are still persisting in the worlds largest
democracy despite the legal safeguards, and the human rights of this
group are under a cloud of danger which quite often burst upon them
making them vulnerable and denying them their right to be human.
The caste based discrimination is comfortably taking breath in a
hierarchical society ruled by the principle of graded inequality thus
challenging the constitutional mandate of establishing an egalitarian
social order. The ineffective implementation of the anti-atrocities law,
under-reporting of atrocities cases, along with the inherent vested
interests in maintaining the caste discrimination, are the reasons for the
perpetuating atrocities. Improper investigation in atrocities cases
results in low conviction rates. According to the NHRC annual report
27,894 cases were registered under the Atrocities Act in 2002 and only
2.31% of cases resulted in conviction compared against the high
number of atrocities reported against dalits. The low rate of conviction
is the result of varying factors like caste bias of the prosecutors as well
as other organs of justice, including the judiciary and the law
enforcement machinerys lack of familiarity with the provision of the
relevant legislation.89 A check on the law enforcement machinery in
this regard is much needed and requires legal scrutiny.
As the state has, to a large extent, failed to prevent the atrocities on
dalits, the role of the civil society becomes very important in the
protection of their human rights. Many NGOs are working in this field
and have done a lot of research in this regard but due to lack of any
follow-up mechanism their efforts results in frustration. Human Rights
88
89
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77
78
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only reached to a few small portion of this group.96 The special plans
described as powerful mechanism for ensuring dalit economic
empowerment has itself been thwarted in its application and
implementation by administrative agencies at the central and state
level either by inadequate investment of public resources, nonutilisation or diversion of funds earmarked for dalit empowerment.97
So the economic empowerment of the scheduled castes is a tool to
minimise the incidents of atrocities as the economic dependence
makes the scheduled castes vulnerable to atrocities. So the need is to
implement the economic measures in the true spirit for uplifting the
scheduled castes.
The law must play a role in changing the status of the scheduled
castes in the society and must prevent these atrocities as these
atrocities struck at the very base of human rights that is human dignity
and thus denies to a large segment of the society the rights to be
human. The international community also must recognise the caste
based discrimination as a human rights issue and this problem must be
tackled at the international level and the India must abandon its hard
stands which does not have any rationale behind it.
96
According to 1996 estimate only 1.1 Million out of the then population of 138
Million were employed in sectors that fall under the domain of reservations, a paltry
0.8%. With the privatization of public sector industries since the advent of economic
reforms in India in the early 1990s, that percentage has likely declined. S.M. Michael
(ed.), Dalits in Modern India: Vision and Values (SAGE Publications, Los Angeles,
2nd edn., 2007), as cited supra note 1 at 313.
97
According to the National Campaign on Dalit Human Rights, during the past five
year plan period, an average of 2 billion Euros ( US $2.96 billion) per year was
illegally diverted from these funds; National Campaign for Dalit Human Rights,
Background of the Dalit Situation in India (September 2007). The figure is
calculated from: Expenditure Budget II (Notes on demands for Grants), Union
Budget 2006-07; Statement No. 21, Expenditure Budget I, Union Budget 2006-07;
Outcome Budget 2006-07 for various Ministries of Central Government), as cited in
supra note 1 at 302.
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I. Introduction
THE INTERNET is truly revolutionary. It has created endless new
opportunities for the citizens of cyberspace, ones that were not
possible in the old, real world. The growing importance that the
internet has played in consumers' lives and the world-wide change in
consumption habits has turned it into a powerful tool for businesses to
promote, advertise, and sell products and services.1 Unfortunately, as
with most tools, not all uses of the Internet are laudatory, or even
benign. As anyone who has ever had his computer attacked by a virus
or read about cyber fraud knows, the Internet is also a prime arena
for dishonest and unlawful conduct. Unscrupulous Internet behavior
includes trademark infringement. Many businesses have fallen prey to
so-called cybersquatters, individuals who register Internet domain
names containing trademarks of others.2
The classic cybersquatting scam works as follows: The
cybersquatter registers an Internet address (known as a domain
name)3 that includes another person's trademark. For example, the
80
[Vol. 1 : 1
2010]
81
82
[Vol. 1 : 1
2010]
83
"Cybersquatting Remains on the Rise with Further Risk to Trademarks from New
Registration Practices", available at:
http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html (visited on Oct.
30, 2009 at 4.30 p.m.).
13
Christopher P. Rains, "A Domain By Any Other Name: Forging International
Solutions For the Governance of Internet Domain Names", 14 Emory Intl. L. Rev.
355 (2000).
14
947 F. Supp. 1227 (N.D. Ill. 1996), available at:
cyber.law.harvard.edu/metaschool/fisher/domain/.../interma.htm (visited on Nov. 30,
2009 at 1.30 p.m.).
15
141 F.3d 1316 (9th Cir. 1998), available at:
www.techlawjournal.com/courts/avery/19980417.htm (visited on Nov. 30, 2009 at
1.35 p.m.).
84
[Vol. 1 : 1
2010]
85
86
[Vol. 1 : 1
Ibid.
Sec. 1125(d)(1)(B) of ACPA.
2010]
87
Ibid.
94 F. Supp. 2d 1125 (D. Colo. 2000), available at:
cyber.law.harvard.edu/ilaw/DomainNames/MorrisonFoerster.htm (visited on Nov.
11, 2009 at 10.30 a.m.).
25
When the proceedings were instituted against the defendant, he had already
registered the names of over 90 law firms as domain names.
24
88
[Vol. 1 : 1
dealt with the provisions of the act, the courts conclusions equally
apply to trade mark infringement and dilution proceedings.
The court firstly held that because ampersands cannot be used in
domain names, the defendants disputed domain names were virtually
identical to the plaintiffs trade mark name. The court proceeded to
state that prejudice was present in that the defendant harmed the
plaintiffs goodwill by tarnishment. The court was further of the
opinion that the defendants use of the disputed domain names
constituted commercial use.
In E&J Gallo Winery v. Spider Webs Ltd.,26 the plaintiff was the
owner of the well-known and registered trade mark Ernest & Julio
Gallo, used and registered for the sale of beverages. The defendants,27
cybersquatters, registered the domain name ernestandjuliogallo.com.
The plaintiff contended that the defendants were guilty of trade mark
dilution. When these proceedings were instituted, the defendants had
not yet established a web site for their domain name. However, during
the trial the defendants established a web site containing a number of
articles critical of alcohol consumption. The web site also commented
on the present trial proceedings.
The court, relying on the Intermatic v. Toeppen judgment, noted:
ernestandjuliogallo.com is displayed on every page printed off of
the web site accessed by that domain name and on the pages printed
off the SpinTopic web site when accessed by the same name. Hence,
as in Intermatic Inc., these facts are sufficient to show the likelihood of
dilution of Gallos mark ... The value of a trademark is diluted when
the domain name does not belong to the company sharing that name
because potential customers will be discouraged if they cannot find its
web page by typing plaintiffs name.com, but instead are forced to
wade through hundreds of web sites. Moreover, if defendants were
allowed to use plaintiffs name.com, plaintiffs name and reputation
would be at defendants mercy and could be associated with an
unimaginable amount of messages on defendants web page.
Defendants ownership of the domain name ernestandjuliogallo.com
26
2010]
89
90
[Vol. 1 : 1
computer enthusiast did not have bad faith intent to profit from
Epix trademark when he obtained epix.com domain name, for
purpose of claim under ACPA, even though enthusiast offered to sell
domain name to trademark holder. The offer was in context of
settlement negotiations and offer was in context of investment that
enthusiast had already invested in websites non-infringing content,
offer was made by enthusiasts attorney, enthusiast performed web
search on Epix before registering epix.com and did not find any
such site, and enthusiast adopted domain name as descriptive term to
connote electronic pictures.
In rem Actions
An innovative feature of the ACPA is that it enables in rem
jurisdiction in domain name disputes - this means that the trademark
owner does not have to sue the domain name owner personally, but
can take action against the domain name itself.32 This provision
recognizes that cybersquatters frequently give out false contact
information, presumably in anticipation of possible law suits.
Normally, in U.S. law, a person who cannot be located cannot be sued.
And since domain name registrars are not liable for registering domain
names that infringe trademarks33 the fact that the registrant cannot be
located would be prejudicial to the rights of the trademark owner to
claim infringement.
The ACPA provides that a mark owner may bring an in rem action
against a domain name in the judicial district in which the domain
name registrar, domain name authority that registered or assigned the
domain name is located, if the domain name violates any right of the
owner of a mark registered in the Patent and Trademark Office or
protected under Sec. 43(a) or (c) of the Lanham Act, 1946.34
Alternatively, the ACPA provides that an in rem action may be
32
S. 1125 (d) (2)(A) of ACPA states: "The owner of a mark may file an in rem civil
action against a domain name in the judicial district in which the domain name
registrar, domain name registry, or other domain name authority that registered or
assigned the domain name is located".
33
Lockheed Martin Corp v. Network Solutions Inc., 985 F. Supp. 949 (C.D. Cal.
1997).
34
S. 1125(a) of ACPA.
2010]
91
S. 1125(d)(2)(C) of ACPA.
Supra note 20 at 339.
37
Mairead Moore, Cybersquatting: Prevention Better Than Cure?, 17 International
Journal of Law and Information Technology 220,226 (2008).
38
The full text of the UDRP is available at:
http://www.icann.org/en/dndr/udrp/policy.htm (visited on Nov. 11, 2009 at 2.30
p.m.).
39
Para. 4(a) of UDRP.
36
92
[Vol. 1 : 1
been known by the name, has used it in connection with a bona fide
offering of goods or services, or has used it for a legitimate noncommercial purpose.40
The UDRP proceedings are conducted by the ICANN approved
service providers. There are presently four approved dispute resolution
service providers that are accepting complaints.41 Each provider
follows the UDRP as well as its own supplemental rules. These are
World Intellectual Property Organization (WIPO), 42 National
Arbitration Forum (NAF),43 Asian Domain Name Dispute Resolution
Centre (ADNCRC)44 and Czech Arbitration Court (CAC).45
The UDRP has proven successful in providing a low-cost
alternative means of resolving disputes involving the bad faith
registration of trademarks or variations thereof as Internet domain
names.46 It was drafted narrowly for the purpose of combating the
Internet phenomenon known as cybersquatting. The effect of the
policy is that the status of the dispute resolution procedure is made
compulsory on the premise that it is incorporated into the contract at
the registration stage. This means that in the case of a dispute while the
applicant is not bound, the defendant is bound to acknowledge the
procedure and submit to it as part of the contract they sign in
registering the domain.
Any aggrieved person may initiate the UDRP procedure by
asserting that the following three criteria are satisfied in relation to the
disputed domain: 47
The domain name in question is identical or confusingly similar
to a trademark or service mark in which the applicant has
rights;48 and
40
2010]
93
A registrant may demonstrate this in one of three ways. First, the registrant, before
notice of the dispute can use the domain name "in connection with a bona fide
offering of goods or services." Alternatively, registrants can establish they have been
"commonly known by the domain name," even if the registrant did not acquire
trademark or service mark rights. Finally, registrants can fulfill this element by
making "a legitimate non-commercial or fair use of the domain name, without intent
for commercial gain to misleadingly divert consumers or to tarnish" the mark.
50
There are several ways for the complainant to demonstrate bad faith. e.g., if the
web site is used for the purpose of selling, rendering, or transferring goods; if the
registrant is preventing a mark owner from using the mark in a domain name; if the
registrant intended to disrupt a competitor's business or if the registrant is creating
confusion for commercial gain, etc.
51
Leah Phillips Falzone, Playing the Hollywood Name Game in Cybercourt: The
Battle Over Domain Names in the Age of Celebrity-Squatting, 21 Loyola of Los
Angeles Entertainment Law Review 289, 304 (2001).
94
[Vol. 1 : 1
(iv) The use of the domain name is intended to confuse the public or
divert users away from the trademark holders web site.
Thus, in procedural terms, in order to initiate proceedings, the
burden is on the complainant to demonstrate in their application for
proceedings that certain requirements in the Policy are met. To
demonstrate these requirements are met, it appears that the threshold is
set at a low level, with practices showing a track record of purchasing
followed by offering domains for sale, clearly establishing the bad
faith element.
In terms of remedies available, Section 4(i) of the UDRP only
allows the complainant to apply for cancellation or transfer of the
domain as the UDRP doesn't have provision for damages. Where the
complainant wins, the transfer of the domain name will take place 10
days after the decision is issued unless the panel is informed by the
defendant that they are initiating court proceedings on the matter.
Some Important Decisions under UDRP
World Wrestling Federation Entertainment Inc. v. Michael Bosman:52
This was the first case decided under the UDRP by WIPO. The
proceedings were initiated on Dec. 09, 1999. The respondent had
registered the domain anme worldwrestlingfederation.com for a term
of two years from Oct. 7, 1999. The complainant provided evidence of
its service mark and trademark World Wrestling Federation.
The respondent had registered the domain name and within three
days had offered the same for sale. The complainant contended that the
respondent had registered as a domain name a mark which is identical
to the service mark and trademark registered and used by the
complainant and that the respondent had no rights or legitimate
interests in respect of the domain name at issue, and that the
respondent had registered and was using the domain name in bad faith.
the respondent did not contest the allegations of the complainant.
It was found that because respondent offered to sell the domain
name to the complainant for valuable consideration in excess of any
52
WIPO case no. D99-0001, decided on Jan. 14, 2000. Complete text of the decision
available
at:
http://www.wipo.int/amc/en/domains/decisions/html/1999/d19990001.html (visited on Nov. 12, 2009 at 12.30 p.m.).
2010]
95
WIPO case no. D2001-0654, decided on Aug. 24, 2001. Complete text of the
decision
available
at:
http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-0654.html.html
(visited on Nov. 12, 2009 at 12.50 p.m.).
96
[Vol. 1 : 1
54
David Kitchen, David Llewelyn, et. al. (eds.), Kerlys Law of Trade Marks and
Trade Names 733 (Sweet & Maxwell, London, 14 th edn., 2005).
55
Jeffrey M. Samuels and Linda B. Samuels, Internet Domain Names: The Uniform
Dispute Resolution Policy, 40 American Business Law Journal 885 (2003) at 903.
56
Ibid.
2010]
97
Ashwani K. Bansal, Law of Trademarks in India 642 (Centre for Law, Intellectual
Property & Trade, New Delhi, 2nd edn., 2006).
58
(1999) 19 PTC 201 (Del).
98
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2010]
99
61
62
100
[Vol. 1 : 1
2010]
101
102
[Vol. 1 : 1
2010]
103
104
[Vol. 1 : 1
2010]
105
mark. Making detection even easier, one domain name registrar offers
a service that will report cybersquatting or any trademark being used
in hidden or overt ways.
After analyzing various approaches relating to cybersquatting, it is
clear that two methods have developed in the form of dispute
resolution by the regulatory authorities and the formal legal or court
procedure. The majority of authorities has either implemented the
UDRP or has implemented one closely modeled on it. This is indeed a
very effective method of curbing cybersquatting, though it requires
changes with time. And then observing at how the courts have reacted,
it is clear that the picture is altogether different. While some countries
have implemented cybersquatting specific legislation, others have
reacted rather indolently by simply applying trademark laws
inappropriately.
Finally, in the light of still increasing rate of cybersquatting in
India and other countries, it is important to make a concerted effort by
registrars to address and curb it at the registration level itself. This is
indeed going to be prove beneficial in controlling cybersquatting, just
like in real world the squatters have finally given up their practice with
stringent property laws in force.
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NOTES
FREEDOM OF RELIGION AND ANTI CONVERSION LAWS
IN INDIA: AN OVERVIEW
I. Introduction
THE FIRST decade of the 21st century with all its grandeur and
technological advancements would best be remembered for the revival
of religion in politics across the globe. It has become impossible to
divorce religion from modern political structure, be it India or the
world. There never was a word, more responsible, in history, for
causing such amount of disruption in society than 'Religion'. Passion
defies logic and emotion overpowers reason, when the subject of
discourse is religion and when there is a question of conversion
involved, the complexity and peculiarity of the situation gives the
issue a dynamic character. Ours is a nation where politics is wedded to
religion. The very first war of independence, 1857, some say was
purely fought on religious grounds. One cannot forget the fact that 62
years back, two independent states were born because of this politics
of religion. The forefathers of our Constitution were well aware of
dangers of religious arsenal in politics and therefore made sufficient
safeguards to ensure that the life of nation marches ahead on a secular
edifice.
Our constitution stands on the bedrock of secularism though
nowhere in the original constitution the word secularism was
mentioned.1 Indian political circuit, in recent times has seen the
dirtiest forms of politico-religious quagmires. With five states of the
Indian Union2 making laws regulating religious conversions in a span
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107
108
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109
110
[Vol. 1 : 1
10
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111
11
112
[Vol. 1 : 1
Mr. Tajamul Hussain, Mr. Loknath Misra, VII CAD 817 & 818.
Pandit Laxmi Kanta Maitrya from West Bengal said: If we are to restore our
sense of values which we have held dear, it is of utmost importance that we should
be able to propagate what we honestly feel and believe in. Propagation does not
necessarily mean seeking converts by force of arms, by swords, or by coercion. But
why should obstacle stand in the way if by exposition, illustration and persuasion
you could convey your own religious faith to others? I do not see any harm in it. And
I do feel that this would be the very essence of our fundamental right, the right to
profess and practice any particular religion. If in this country the different religious
faiths go on expounding their religious tenets and doctrines, then probably a good
deal of misconception prevailing in the minds of people about different religions
would be removed, and probably a stage would be reached when by mutual
understanding we could avoid in future all manner of conflicts that arise in the name
of religion. From that point of view I am convinced that the word propagate should
not be deleted.
19
Dr. Irfan Ahmad Khan, Freedom to Change One's Religion: Freedom of Religion
is
Meaningless
Without
Freedom
to
Change
Ones
Religion,
available
at
http://www.globalwebpost.com/farooqm/study_res/
islam/apostasy/apostasy_irfankhan.html (visited on Nov. 11, 2009 at 12.30 pm).
18
2010]
113
H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 4th ed., 2005).
21
114
[Vol. 1 : 1
24
Ibid.
Supra note 21 at 104.
26
Ibid.
27
Id at 105.
28
Ibid.
25
2010]
115
116
[Vol. 1 : 1
30
The Honble Supreme Court expounded the theory of Basic Structure in the
historic Kesavanand Case and later on in S.R. Bommai held Secularism to be a part
of Basic structure of the Constitution.
31
The first anti conversion law was passed by the Rajgarh State in 1936 which was
followed by the Patna Freedom of Religion Act, 1942, Surguza State Apostasy Act,
1945 and the Udaipur State Anti Conversion Act, 1946.
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118
[Vol. 1 : 1
2010]
119
goes far beyond the protection of this right and indeed, in no way
appear to be motivated by the desire to protect the freedom of
conscience.38 The terminology used by these legislations transforms
them from their purported role as protectors of constitutional rights
into violators of these very guarantees.39
Let us begin with first examining the definition of conversion
given in the statutes. Conversion as defined40 in Orissa, Madhya
Pradesh, Chhattisgarh and Himachal Pradesh Act means renouncing
one religion and adopting another. Using a different phraseology, the
Gujrat Act defines convert as meaning to make one person to
renounce one religion and adopt another religion.41 The Rajasthan,
Arunachal Pradesh and Chhattisgarh Act are unique in the sense that
there definition of conversion excludes reconversion. Section 2(b)
of the Arunachal Act defines conversion as renouncing an
indigenous faith and adopting another faith or religion. Section 2(c) of
the Act further defines indigenous as such religions, beliefs and
practices including rites, rituals, festivals, observances, performances,
abstinence, customs as have been found sanctioned, approved,
performed by the indigenous communities of Arunachal Pradesh from
the time these communities have been known and further elaborates a
list of those considered indigenous.
The Rajasthan Act applies the term conversion only to
renunciation of ones own religion and adopting another. Own
religion is explained as the religion of ones forefathers. Similarly,
the amended Chhattisgarh Act excludes returning to ones forefathers
religion or his original religion from the definition of conversion.
This distinction between conversion and reconversion is the
biggest anomalies of the Acts as they clearly differentiate between
religions and infringes article 14 of the constitution. It is hard to
38
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[Vol. 1 : 1
S. 2(b) of Himachal and Orissa Act, s. 2(c) of Madhya Pradesh and Gujarat Act, s.
2(d) of Arunachal and Rajasthan Act.
43
Supra note 38 at 64; also see right to change religion derived from freedom of
thought in this paper.
44
Ibid.
45
S. 508 of IPC reads:
Act caused by inducing person to believe that he will be rendered an object of the
Divine displeasure. Whoever voluntarily causes or attempts to cause any person to
do anything which that person is not legally bound to do, or to omit to do anything
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more than 150 years now. Any individual or group inducing another to
do any act under a threat of divine displeasure can be prosecuted under
the Indian Penal Code. There underlies a subtle difference in the
operating scope of the term in both the cases, i.e., when used in IPC
and when used under the anti conversion laws. IPC as a general penal
statute is the law of the land providing for different types of offences.
Anti conversion laws are specifically made to achieve some purpose.
The scope of IPC is vast, that of anti conversion laws narrowed down
in terms of territorial limits but more profound in its reach and effect.
When used in such a specific sense as in the anti conversion laws there
is always room for overtly broad interpretation or misinterpretation
which might in certain situations lead to putting restrictions on the
right to free propagation of religion.
Two terms that further need critical analysis are allurement and
inducement.46 It is noteworthy here that the problem with the use of
the word inducement were noted by the Orissa High Court in Yulitha
Hyde v. State of Orissa47 wherein it was held to impinge upon many
legitimate methods of proselytising by reason of its overly vague
nature and wide scope. This decision was however; subsequently
overruled by the Supreme Court in Stainislaus v Madhya Pradesh48
wherein the Court upheld the validity of the Orissa Act but the
problem of broad scope of both these terms nevertheless remains the
same.
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[Vol. 1 : 1
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123
52
124
[Vol. 1 : 1
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125
61
126
[Vol. 1 : 1
2010]
127
65
128
[Vol. 1 : 1
2010]
129
She is a teacher at the Leo Baeck College for the Study of Judaism in London and,
in 1999; and has also received the Muslim Public Affairs Council Media Award. She
is also the author of the world-wide bestsellers.
2
Karen Armstrong, Islam: A Short History 13 (Phoenix Press, London, 1st edn.,
2000).
130
[Vol. 1 : 1
Furqan Ahmad, Understanding the Islamic Law of Divorce, 43 JILI 484 (2003).
Supra note 3.
5
This is a period of ignorance among the ancient Arab before the teaching of
Prophet (PBUH).
6
Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal
Aspect 13 (Regency Publication, New Delhi, 1994).
4
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131
132
[Vol. 1 : 1
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133
16
Ibid.
Supra note 3 at 472.
18
Id. at 487.
19
Faiz Badrudin Tyabji, Muslim Law 205 (N.M. Tripathi Ltd., Bombay, 4th edn.,
1968).
17
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[Vol. 1 : 1
nothing in Islamic law which gives husband the power to divorce his
wife arbitrarily, irrationally and in unreasonable manner.
Further, it has been laid in Quran that before the procedure for
talaq is to be started the spouses should try to reconcile with each
other by appointing arbitrators, one from the side of wife and the other
from the side of husband. This has been provided under verse 4:3520 of
Holy Quran.
It has been observed by a learned commentator of Holy Quran: 21 as
An excellent plan for setting the family disputes, without too much
publicity or mud-throwing or resort to chicaneries of the law. The
Latin countries recognized this plan in their legal system. It is a pity
that Muslims do not resort to it universally, as they should. They
arbiters from each family would know idiosyncrasies of both parties
and would be able, with Allahs help to effect reconciliation.
According to Moulana Mohammed Ali, this a procedure par
excellence, which portrays Islam in its true glory. But later Muslim
jurists of great antiquity and high authority threw to the winds this
salutary procedure.22
According to Tahir Mahmood there is a simple procedure of talaq
in Islam which is, unfortunately, misunderstood by majority of Muslim
themselves. They erroneously believe that they are allowed different
modes or forms of talaq and also have absolute freedom of action.
He says that there are not any modes of talaq like ahsan, hasan or
bidat. The law of Islam says to husband:23
(i) Talaq is worst of all permitted things; better avoid it: but if you
find necessary to have recourse to talaq, then;
(a) Wait till the wife enters the period of tuhr;24
20
An Enlightenment Commentary into the Light of the Holy Quran (The Scientific
and Religious Research Centre, Iran, 2nd edn., 1995).
21
Holy Quran English Translation of the Meanings and Commentary, 220 Ministry
of Hajj and Endowments, kingdom of Saudi Arabia as cited in S.A. Kader, Muslim
Law of Marriage and Succession 37 (Eastern Law House, Lucknow, 1998).
22
S.A.Kader, Muslim Law of Marriage and Succession, 37 (Eastern Law House,
Lucknow 1998).
23
Tahir Mahmood, The Muslim Law of India 117 (LexisNexis Butwerworth, New
Delhi, 1980).
24
Tuhr is a period when a woman is not in her menstrual period and is pure. This is
basically to assure that husband is not acting in haste. And the husband resolve to be
separate from his wife, is not a passing whim, but is a result of self determination.
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[Vol. 1 : 1
(e) If you have exercised your power of talaq in this way, your
behavior is still good (hasan).25
This is the one and only form of divorce which has been given in
the Quran. Further there is one more confusion that hasan talaq must
be given in three consecutive or successive tuhr. This is submitted
as wrong. The correct position is that if the husband has given talaq
once he should not pronounce the next talaq before the second tuhr but
he can give the same at any time during the subsistence of marriage
and that talaq will be counted as one. The same is the situation when
he pronounces the second talaq. Thus it should be understood that the
condition for next tuhr for the second or the third talaq is that there
should be minimum time of one month for the husband to think and it
is not to be taken as maximum limitation.
III. Meaning and Nature of Triple-Talaq
Triple-Talaq is a form of talaq-ul-bidat in which, the husband may
pronounce the three formulae at one time, and it is irrelevant that
whether the wife is in state of tuhr or not. It is denoted in Arabic as
Mugallazah, means very hard-divorce which is most disapproved and
which does not conform to Talak-us-sunnat. The separation then
effects definitely after the woman has fulfilled her iddat or period of
probation.
Origin of Triple-Talaq
According to Asghar Ali Engineer, the Islamic Shariah which was
formulated more than hundred years after the death of the prophet and
had evolved under complex influences of various civilizations and
took away what was given to women by the Prophet and the Quran the
issue of triple divorce in one sitting illustrates this very well. It was
practiced during the jahiliyah period (times of ignorance) before the
advent of Islam.
The triple divorce was not allowed during the Prophets lifetime,
during the first Caliph Abu Bakrs reign and also for more than two
years during the second Caliph Umars time. Later on Umar (RA)
25
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138
[Vol. 1 : 1
abominable forms have become the most common for men have
always molded the law of marriage so as to be most agreeable to
them.29
Nature of Triple-Talaq
There is a great controversy regarding the effect of triple
pronouncement of the divorce at one and the same time. The
difference in the opinion of jurists is due to the difference in their
interpretation and application of the law. One class of the jurists is of
the opinion that no leniency is to be shown in the application of laws
so that people should not take undue advantage on that account. Abu
Hanifa and Malik, therefore, hold the three repetitions of divorce to be
final. The other jurists explained that Allah wants to treat people
leniently so that they may not be put to hardship, and also to minimize
the chances of separation. Hence, they hold three repetitions to amount
to one only. Ibn Rushd has explained that Islam believes in golden
mean.30 There is great controversy regarding the effect of triple
divorce at one and the same time.
Under the most of the classical schools of Sunni Islamic
Jurisprudence there is no material difference regarding the effect of
Triple Divorce in substance, however, there is some slight difference
only in respect of procedure. According to Hanafi jurists this result in
a Mughallaza divorce though they call it an innovation. Whereas the
Shafii holds that if a husband repeats three pronouncements of divorce
but without intending, only for the emphasis it will result in a single
divorce but if he pronounces the three divorces intending or without
any intention, it shall result in three divorces. More or less same view
is held by the Hambali School. Maliki differ in their view in the sense
that they make a distinction between various expression used in the
pronouncement of divorce. The only progressive group is the Ahl-ehadis sect who accepts three divorces at a single sitting as one only.
Whereas in Shia law there is general consensus of opinion that the
29
Faiz Badrudin Tyabji, Muslim Law 163 (N.M.Tripathi LTD Bombay) 4th edition
1968).
30
K.N.Ahmad, Muslim Law of Divorce 85 (Kitab Bhawan, New Delhi, 1978).
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139
divorce in single sitting should be counted as one and the Imamia sect
go so far as to say that such a divorce is no divorce at all.
Legal and Religious Aspect of Triple-Talaq
In Islam, law cannot be dealt with as a separate aspect from religion. J.
Mahmood in Govind Dayal v. Inayatullah31 held, it is to be
remembered the Hindu and Mohammedan Laws are so intimately
connected with religion that they cannot readily be served from each
other.
The above judgment is totally applicable in the cased of TripleTalaq, either the three pronouncement should be treated as one
revocable divorce or three divorces. For this problem both legal and
religious aspect are the same and the two aspect only deal with the
problem whether three divorces in single breath should be taken as one
or three.
Position of Triple-Talaq
Jurisprudence
Islamic
When the triple divorce is seen in the light of the four basic sources of
Islamic jurisprudence, we see that a principle to become a law has to
be supported by the Quran, Hadith, Ijma, and Qiyas. If the solution of
the problem is given in the Quran it is the final ruling of sharia, if
there is no clear exposition of it in Quran we examine the traditions of
Prophet (PBUH), and if the solution is there it must be taken as rule of
sharia. If the problem finds no solution in either of those, we refer to
general consensus of opinion or Ijma and if the problem has been
solved by Ijma it will also become rule of Islamic Law.32
31
(1895) 7 All. 775, 781; cf. Furqan Ahmed, Triple Talaq: An Analytical Study with
Emphasis on Socio-Legal Aspect 86 (Regency Publication, New Delhi, 1994).
32
Supra note 6 at 41.
140
[Vol. 1 : 1
2010]
141
37
142
[Vol. 1 : 1
The author of Al-bahr has traced it from Abu Musa Ashaari, and
according to another narrative of Hazrat Ali, and another group
including Taoos, Ata, Jabirbih Yazid, Hadi, Qasim, Nasir Ahmad Bin
Isa, Abdullah Bin Musa Bin Abdulla has traced it from Ibn-i-Abbas.41
Whereas among those tradition which the scholars have quoted in
favor of treating triple divorce in same breath as three distinct divorce
has no express mention about it and there are other, of which, the
circumstances are different, and so, they provide no argument. Some
of them are weak or non-authentic. So there is none among those
which may be cited as basis of such conclusive argument. Some of
them are given below:
This tradition relates to Uwaimir-Ajlani in which the story of Lian
has been recorded:
When both (husband and wife) had undergone the procedure of
swearing Uwaimir said if I still keep her with me then I shall prove
to be a Lian and again he gave her three divorces before the Prophet
(PBUH) had ordered it.42
This tradition is often presented to prove that Uwaimir gave three
divorces in the presence of Prophet and he did not object it and
allowed it. But it is not correct to argue from this tradition, because
after Lian there cannot be any re-union and the spouses cannot remarry even if they want. So the three pronouncements were only to
emphasize the Lian.
Further it has been argued that when Hazrat Umar held these three
divorces valid, it was in the presence of companions of Prophet who
did not object to it. But the important question to be asked here is that
on one hand is the judgment of Hazrat Umar and on the other hand
there is practice during the time of Prophet as well as Hazrat Abu
Bakr. So how can the practice of Prophet (PBUH) be abrogated, it has
to be preferred by all means.
Thus on review of all the religious literature it can be
authoritatively said that the on the question of effectiveness of tripletalaq, there is no clear commandment in the Holy Quran or in the
41
Al-Shokani, Mohd. Bin Ali Bin Mohd. , Nainul Avtaar 21 as cited in supra note 6
at 30.
42
Supra note 6 at 31
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143
43
144
[Vol. 1 : 1
He was Chief Justice of Gauhati High Court and tried to give correct meaning to
law of divorce among Muslims in India. His view point on Talaq get support of Prof.
Tahir Mahmoods writings on Talaq: the Muslim Law of India (1980). Also it is very
unfortunate that most of his decisions have remained unreported, so the reforms were
further delayed.
47
Sayid Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25.
48
(1981) 1 Gau.L.R 368.
49
AIR 1971 Ker. 261.
50
(1981) 1 Gau. L.R. 375.
51
(1997) 3 SCC 573.
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145
In this case, Sadiqunissa had pleaded that she was thrown out of her husband
house after she failed to fulfill the dowry demand and was also tortured. Later, when
she and her two year old son preferred an application under section 125 of CrPC for
maintenance, her husband filed an objection saying he had already divorced her and
the Talaqnama was sent by the registered post.
53
135 (2006) DLT 205 .
54
MANU/DE/9441/2007.
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biddat form of divorce, and the introduction of dower and the Iddat
period provides only limited checks on the husbands power. In all
Mulim countries there has been pressure to introduce reform which
will safeguard the wifes right, and enable a proper opportunity to be
made to attempt to reconciliation.55 The laws of various Muslim
countries relating to the triple divorce are stated below:
The first of major reforms were in Egypt in 1920s. The Article 356
and 557 of the Law No. 25 (1929) expressly provides that triple-talaq
will be considered as one. In no other country except Iraq, women
have equal rights with men in the matter of divorce. Article 37 58 of the
Iraqi Code of Personal Status 1959 also treats triple divorce as one.59
In Sudan and Jordan also the position is similar; section 360 of
Sudaneese Manshur-i-Qadi al-Qudat, and Section 6061 of Jordanian
Code of Personal Status, 1976 respectively provide that triple-talaq
shall be considered as one. Same principle is followed in countries like
Morocco Yemen, Syria. Further in Pakistan, section 7 of Muslim
Family Law Ordinance provides that the traditional form of divorce is
not in force in its original form. A divorce in triple pronouncement is
no longer considered mughllazah or final and it is open to spouses to
continue the marriage if reconciliation is brought about between them
within the prescribed period.62
55
David Pearl, Werner Menski, Muslim Family Law 93 (Brite Books, Pakistan,
2000).
56
A Talaq accompanied by a number expressly or impliedly shall not be effective
except as a single divorce.
57
Every Talaq shall be revocable except a third Talaq, that given before
consummation, that for a consideration and that expressly described as irrevocable in
this law.
58
Cl. (2) where a Talaq is coupled with number, express or implied, not more than
one divorce shall take place.
59
Supra note 55 at 9.
60
A formula of divorce coupled with number, expressly or impliedly, shall affect
only one divorce.
61
A divorce coupled with a number, expressly or impliedly, as also a divorce
repeated in same sitting, will not take effect except as a single divorce.
62
Tahir Mahmood, Family Law Reform in Muslim World 251 (LexisNexis
Butterworth, Delhi, 1972).
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63
148
[Vol. 1 : 1
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149
the divorce laws, but today the Muslims have reverted to same practice
which was abhorred by the Prophet (PBUH). The true law of talaq is
not as easy as it has been practiced by majority of Muslim.
It has been well argued that this form of unilateral triple divorce
has no Quranic injunction, further it cannot be traced in the traditions
of Prophet as most of the traditions quoted in the favor of triple-talaq
are either weak or are not authentic , moreover even if triple
pronouncement is there it has been interpreted as one. By going into
the historical background it has become amply clear that this form of
divorce only came into the practice after the death of Prophet (PBUH),
during Umayyad reigns to meet certain exigencies and was for that
period only.
The Prophet (PBUH) also gave the best declaration for womens right
in his farewell speech on the occasion of his last hajj. He demanded
that husbands should treat their wives with kindness and gentleness.
Men are to know that their women are their partners. Islam recognizes
the duties and responsibilities of both partners and, hence, emphasizes
that man is the Head, while the woman is the Heart of the family.
Both are needed and both are complementary to one another.
The Muslim of today have totally forgotten the teachings of the
Holy Prophet (PBUH) as well as true spirit of the Islamic law which
gave women equal status as men as rights in all the domain of human
life social, political, economical as well as in the family.
So, to eradicate this practice it is necessary that firstly the
legislature should take a step forward and make laws in consonance
with the true Islamic law of divorce and to follow the precedent of
other Muslim countries who have reformed the triple-talaq in one
form or the other. Secondly it is very important the Muslim
community in general should be acquainted with the proper method of
divorce. And also to be made aware that resorting to this method of
triple-talaq is a sin. This can be done by mass education through the
medium of press and media. But the most important thing for the
evaluation of law is that law should be assessed in a society where it is
grown and developed; only then the utility of law can be understood. J.
Abdur Rahim and many other jurists have formulated this opinion.
There is a famous saying about law is that He does not know the law
who does not know the spirit of law. However, whether it is
150
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151
The idea of deodand under English law can be cited as an example where the
ancient law has attributed legal recognition to non-human animals and objects. In the
modern days a distinction is generally made between natural and non-natural persons
and by virtue of the legal fiction as to personality non-human entities like
corporations, states, idols etc. are granted legal recognition to a limited extent.
2
The Universal Declaration of Human Rights, states in art. I, "all human beings are
born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood . . . ."
3
A different approach can be found in the Eastern and Native American thought
where non-human world is also considered relevant.
152
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For example there are many environmental philosophies like deep ecology, ecocentrism etc. which emphasize the importance of non-human world and hold that
man is only a part of nature.
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153
154
[Vol. 1 : 1
12
Id. at 488.
Id. at 471.
14
Ibid. The linguistic signs are produced by rapid concurrent alteration of several
different parts of the upper vocal tract. There is some evidence to show that the
capacity to transmit and receive messages is an inherited feature of human brain.
The changes needed for the initiation of speech would be the brain and the muscular
system controlling the airway.
15
Ibid. Linguistic signs have the advantage of being open in the sense that there is an
infinite or very large possibility of combining them in such ways as to produce new
messages while, the non-linguistic systems are closed as they consist of a finite, and
small number of basic signs.
16
Supra note 7 at 471.
13
2010]
155
Jens David Ohlin, Is the Concept of the Person Necessary for Human Rights?,
105 Colum. L. Rev. 209, 213 (2005).
18
Pierre De Tourtoulon, Philosophy in the Development of Law 7 (1969, Rothman
Reprints).
19
The main narrative first book of canonical Jewish and Christian scriptures.
20
Genesis 1.26 and 1 John 3.2, as seen in Saint Thomas Acquinas and Brian J.
Shanley, The Treatise on the Divine Nature, 43,(2006).
21
An interpretation of what is not human in terms of human characteristics.
22
Anthropomorphism is not peculiar to Christianity and can be found in the images
of Hindu Gods as well.
23
Richard H. Hiers, Reverence for Life and Environmental Ethics in Biblical Law
and Covenant, 13 J. L. & Religion 127,130 (1996-98).
156
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24
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158
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based on a belief that man is non-natural and god-like and that he must
win his right to dominion over nature and in doing so he earns his
place near God in the life hereafter.
Kantian social contract also prefers the distinct character of
humans because of their commitment to rationality and the basic
conception of political principles as deriving from a social contract
among rough equals.34 Similar views can be seen in the writings of
John Rawls as well, when he points out that two features or moral
powers as he calls it, that distinguishes man from other creatures are-a
capacity for a conception of the good and a capacity for a sense of
justice, at least to a certain minimum degree. 35
A different stream of thought can probably be found in the writings
of skeptics, who insisted on the limited nature of mans capacities and
argued that the only form of knowledge he has is based on his
experience. Thus they maintain that human understanding even with
the faculty of reason is limited.36 19th century philosophy also shows
some deviation from the western idea of humanocentricm which was
spearheaded by the secularization of philosophical discourses.37
Consequently man began to be perceived as a biological creature or
just as a part of natural world. But the significance of these thoughts
cannot be over emphasized because it can be seen that all the western
philosophers starting from Aristotle, to Immanuel Kant, Thomas
Acquinas and John Rawls, despite their differences, agree that reason
distinguishes man from an animal and probably entitle him to an
exalted status.
III. Rationality and Human Rights
The most significant aspect of man, as evidenced from the above
discussion, is his capacity to think or to make rational or moral choice,
apart from the physical characteristics that provide him with an
advantage over other creatures. All philosophers, despite their
differences agree that it is the capacity to think or reason that
34
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38
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for its potential to become a rational or moral agent is the basis for
attributing human rights.44
Mentally Disabled and Brain Dead Persons?
The recognition of the human rights of the mentally disabled people
point out to the fact that the division between biological features and
mental faculties is irrelevant as far as human rights is concerned. 45 The
capacity of moral agency varies among mentally disabled, depending
on the nature of disability, but international human rights law does not
deny them basic rights; instead they are given special protection to
have a comfortable living. Same is the case with brain dead people,
whose cognitive faculties are nil, still the law finds it difficult to treat
them as dead or deny them the right to life and dignity. 46 Concern for
their rights can be seen in the public resistance and legal reluctance to
legalize euthanasia in cases of brain dead patients.
IV. Concluding Remarks
In all the above examples it becomes clear that rationality or moral
agency arguably inherent in every human being, fails to provide a
convincing argument as the basis of human dignity and thus human
rights. This leads one to recognize the truth in the assertion that the
basis of human rights is premised on species membership and
exclusive human dignity.47 Many have criticized this assertion of
species superiority as arrant human chauvinism.48 This assertion,
formulated to serve the selfish interests of man, can be seen in various
branches of law where he considers non-humans and ecology as
property, which can be owned, controlled and even destroyed by him.
Extension of such an attitude to human rights is highly unfortunate.
Meta-physical considerations would undermine the prospects of its
44
Ibid.
Supra note 39 at 134.
46
Ibid.
47
Terminology used by Kyle Ash. See Supra note 24.
48
Id. at 200.
45
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Sreeparvathy G.
49
Supra note 24, Kyle Ash According to Kyle Ash the supremacy of human is based
on three propositions First, the cognitive abilities that humans have are the greatest
assets an animal can possess. Second, humans possess this ability and other animals
do not. Third, humans are superior because they have this asset.
50
Ibid.
51
Id. at 209. This has been articulated by Roger Brownsword in the following wordsTo say that humans have dignity, meaning that humans have a value, simply by
virtue of being members of the human species will not convince even fellow humans.
For, any attempt to privilege the members of a particular species, including the
members of the human species, merely by virtue of their species-membership will
attract the charge of "speciesism"--such a response is arbitrary and it plainly will not
do.
2010]
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Act 34 of 2006.
R.P. Kagle, 4(2) The Kautilya Arthashastra 260-270 (1970); see chapter 2, s. 77.
Kagle has translated those proses into English as follows: As to difference in weight
or measure or difference in price or quality, for the weigher and measurer who by the
trick of the hand brings about (difference to the extent of) one-eight part in( an
article)priced at one panna, the fine is two hundred (pannas)... For mixing things of
similar kindwith objects such as grains, fats, sugar, salt, perfumes and medicines the
fine is twelve pannas.
3
21 Parliamentary Debates, Lok Sabha 390 (Jul. 26, 2006)
2
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the central law and the rules there under were enacted in 1954 and
1955, respectively, which is operative till date. Subsequently, a number
of orders were passed relating to fruit, meat, vegetable oil etc. In 1986,
after the enactment of Consumer Protection Act, remedy came to the
consumers by way of compensation as well, which is a codified form
of law of torts.10
Presently, the central government has enacted the FSSA, 2006,
which is the consolidation of all the existing laws on food in general,
and food adulteration in particular. On November 18, 2008 the
provisions related to the establishment of the Food Safety and
Standard Authority came into force. Till date, the Central Authority11
has been established under the Act and the enforcement of rest of the
provisions is still awaited.12 The authority is working on the Rules and
Regulations to implement the Act.13 As soon as the Act completely
comes into force, all the legislations and the orders presently in force14
including the PFA will cease to have affect.
It is evident after going through the FSSA, 2006 that it is better
than PFA in many ways, but the actual implementation is yet to be
tested which can be done only once the legislation comes into force.
Before that is done, one has to really see where the problem lies. Is it
in the law or is it in the implementation? Or is it that the solution lies
entirely elsewhere?
As FSSA, 2006 is more or less framed on the basis of international
model the direct question of feasibility of such a law in the Indian
context comes in. Does India have the required machinery to
implement the law? In other words, do we have the required quantity
and quality of laboratories which are of foremost importance to assure
the implementation of the Act? According to V.S. Deshpande J.,15 apart
10
The Consumer Protection Act, 1986 is also available to the consumers in spite of
PFA being in force.
11
Office is established in Delhi.
12
The Central Government has repeatedly assured to bring the legislation in force
very soon. Last time it was done in March, 2009. According to the assistant Director
General, Mr. Dhir Singh, the Act will become fully operational in the beginning of
2010; see The Financial Express, Mar. 15, 2009
13
As notified on www.fssai.gov.in (visited on Oct. 22, 2009 at 12:35 pm).
14
According to s. 97 of the FSSA, 2006 read with sch. II.
15
Former Chief Justice of the Delhi High Court; see the forewords to the book by
Mahesh Chandra, Socio-Economic Crime (N.M. Tripathi Pvt. Ltd., Bombay, 1979).
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On one hand there are rights then on the other hand are the duties
of the state under article 39 (e) and (f)20 and article 47 of the
Constitution to raise the level of nutrition and standard of living and to
improve public health. The Supreme Court in Vinscent v. Union of
India,21 held, Maintenance and improvement of public health have to
rank high as this is indispensable to the very physical existence of the
community and on the betterment of these depends the building up the
society which the constitution maker envisaged, attending to public
health, in our opinion, therefore is of high priority, perhaps the one at
the top.
Finally, according to Schedule VII, adulteration of foodstuffs and
other goods is given under entry 18 of the Concurrent List.
The adulteration of food with an intention to sell is an offence
under sections 272 and 273 of the IPC which is punishable with the
imprisonment of six months and fine. States like U.P., West Bengal
and Orissa have enhanced the maximum punishment to life
imprisonment.22 The act is punishable when adulteration makes the
food article noxious. According to Oxford English dictionary,
noxious means injurious, hurtful and unwholesome. In Ram Dayal v.
King Emperor,23 Privy Council held that the mixture of pig fat with
ghee would be noxious to the religion and social feeling of both
Hindus and Muslims, still it does not come under the section (as it is
not noxious to the health). Similarly presence of non-permitted red oil
solvable coal tardy, the percentage of which has not been reported, is
not noxious.
Under the Code of Criminal Procedure the offence is noncognizable and bailable and not compoundable. The trial can be
20
The State shall, in particular, direct its policy towards securing- (e) that the health
and strength of workers, men and women, and the tender age of children are not
abused .and (f) that the children are given full opportunities and facilities to
develop in a healthy manner
21
A.I.R. 1987 SC 990 at 997.
22
An interesting question that arises here is that whether the increased punishment
has lowered the rate of the cases of food adulteration in these states. This can be
found out from the data given on www.indiastat.com. If the answer is no then it
proves the failure of the approach and indicates that the solution lies somewhere else
and not in punishing the accused simply.
23
As cited in S.K. Sarvarias (ed.), 2 Ra Nelsons Indian Penal Code 2338
(Lexisnexis-Butterworth and Wadhwa. Nagpur, 10th edn., 2008); A.I.R. 1925 All
214(1).
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24
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Ravulapti Madhavi, Is Food Safety Lurking in the Food Safety and Standards
Act, 2006?, 4(23), SCJ (Jour) 17 (2008).
31
As cited in Parkash C. Juneja, Prevention of Food Adulteration Act and
Consumer Protection, 8 Central Law Quarterly 371(1988); (1965) Cr.LJ. 571.
170
[Vol. 1 : 1
32
To which food samples can be referred to for final opinion in disputed cases.
Prominent critiques are compiled herein.
34
Even quality control under Agmark for agricultural commodities including food
item is voluntary. See, Subhash C. Sharma, Consumer protection, 8(4) Central
India Law Quarterly 377 (1995).
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35
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for the purpose. This law was expected to take into account the
international scenario and modern developments in developed and
developing countries so as to create an enabling environment and
promote self-compliance by the Food Processing Industries. The
Ministry of Food Processing45 was given the responsibility to assist the
GoM.
The first meeting of the GoM was held on Jan. 27, 2003 under the
Chairmanship of the Minister of Law and Justice. On this occasion,
along with the second meeting held on March 18, 2003, there were
deliberations made on how to chalk out a common strategy for
common acceptable draft bill. It was unanimously agreed that study of
international experience can become the building block of the new
legislation and an independent developmental and regulatory authority
be first set up, by bringing the statute, to look into all the aspects of
existing food laws and commend new legislation. It was also decided
that Secretary, Ministry of Food Processing Industries would
coordinate discussion with Secretary, Law Commission. Consequently,
the Member Secretary gave its recommendations.
After all these exercises, the Ministry of Food Processing prepared
the draft Bill that was places in the Lower House on August 25, 2005
by the then Minister of State Mr. Subodh Kant Sahay. The debate was
mainly held on July 26, 2006 in the Lok Sabha and on August 1, 2006
and on August 2, 2006 in Rajya Sabha. The Bill got the Presidents
assent on August 23, 2006 and has come into force in fragments from
time to time.46 The Authority was established on November 18, 2008.
Aim of the Act is to have an integrated and modern law on food
problems and to have a central authority, which can lay down the
science-based standards for scientific development of the food
processing industry.47
prime Minister has decided to set up a Group of Ministers (GoM) to propose
legislative and other changes for preparing a modern integrated food law and related
regulations.
45
The ministry was formed during the primeministership of Mr. Rajiv Gandhi in
Jul. 1988.
46
Ss. 4-10, 87, 88, 91 and 101 came into force on Oct. 15, 2007. Ss. 3 and 30 came
into force on Aug. 25, 2008. S. 90 came into force on Aug. 28, 2008. Ss. 16-18, 8186, 92 and 93 came into force on Nov. 18, 2008.
47
According to the Introduction, Statement of Object and Reason, and Preamble of
FSSA, 2006.
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176
MINISTRY OF
MINISTRY OF FOOD
COMMERCE
PROCESSING
Imports & Exports
INDUSTRIES
Regulations
Fruit Products Order,
Export Inspection
1955
Agency
Tea Board
Coffee Board
Coffee Act & Rules
MINISTRY OF
MINISTRY OF
FORESTS &
SCIENCE
ENVIRONMENT
&TECHNOLOGY
Trade in Endangered Atomic Energy Act, 1962
Species Act
Control of Irradiation of
Ecomark
Foods Rules, 1991
G.M. & Organic Foods
[Vol. 1 : 1
MINISTRY OF RURAL
DEVELOPMENT
Agricultural Produce
Grading & Marketing Act,
1937
Meat Food Products Order
MINISTRY OF HRD
(Development of Women
& Child Welfare)
Infant Milk Substitutes,
Feeding Bottles & Infant
Foods (Regulation of
Production, Supply &
Distribution) Act, 1992Rules, 1993
SOURCE: ANNEXURE to Joint Parliamentary Report on Pesticide
Residue, 2004.
Apart from this many organizations viz. Bureau of Indian
Standards, Central Committee for Food Standards, Ministry of Rural
development under Agmark, Export Import Council under Exim
Policy etc. lay down standards in the food sector. Then there are many
overlapping and contradictory provisions in the above-mentioned
legislations and rules and orders. The report concluded that the system
is over regulated and under administered. Further it laid down the
salient feature for the new modern integrated food law as well as the
duties of the Food Safety and standards Authority.
Recommendations of Member Secretary, Law Commission
After doing an in-depth study in the food laws of the countries53 where
there is a central food authority, secretary came up with many
suggestions. Some of them are:
53
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177
Trial by the Special Court was also suggested by the Ministry of Health in their
Concept Note on amendments to PFA.
55
It is done so that their interests are not adversely affected by the proposed
enactment. However the farmers should be encouraged to voluntary comply with the
set standards. The central government can frame suitable schemes under the Act,
offering incentives to such farmers.
56
The procedure is followed in Thailand
57
The procedure is followed in Turkey.
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See financial memorandum, The Food Safety and Standards Bill, 2005.
They are Pune, Kolkota, Gaziabad and Mysore. Source: www.fssai.gov.in (as
visited on Sep. 6, 2009).
82
See supra note 44 at 155.
81
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Therefore, this provision had been of rather no use in the past and
there was no point in its retention. Instead, there should be special
branch of police and inspectorate with wide power of search and
seizure, which should be at strict vigil all the time.
Again there is an appreciable feature of setting the tribunal at
appellate level. Such tribunals are much required for the expeditious
remedy. It would have been better if the same procedure was given for
the court of first instance. There is also need to reconsider the number
of times the person is given the chance of appeal. There is also
provision for the special courts, where the burden of proof should be
shifted from the prosecution. There should be a good coordination
between the investigation team and prosecution because most of the
escapes in past were because of the poor link between the two.
Likewise, there are speculations regarding other features too, such
as the number of inspectors or their qualification and training, etc. The
biggest doubt that arises is the adaptability of the Act that has been
framed by taking features from other countries and especially the
Codex. Are the provisions suited for the Indian conditions especially
with regard to the unorganized sector? For example, section 3(s) says
about Food Safety Management System which means adoption of
Good Manufacturing Practices, Good Hygienic Practices, Hazard
Analysis and Critical Control Point for the food business. These terms
are not explained in the definition clause though they are extensively
dealt with in the Codex Alimentarius on Food hygiene Basic Text.
There are high standards laid in the Text while defining the terms as
food hygiene, Hazard analysis and critical control point.83 The
Codex says about the environmental hygiene where the food
production should not be carried in areas where there is presence of
potentially harmful substances. The equipments used should be
disinfected; there should not be contamination from the soil and air;
the persons working in the establishment should not be infected with
any disease, personal hygiene, air ventilation, lighting, temperature
control etc. With this background we can find very few establishments
that fulfill the requirements if we dont consider the multinational set
ups. These guidelines work in the western countries because they have
83
A system that identifies evaluates and controls hazards that are significant for food
safety.
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Anubha Dhulia
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COMMENTS
ACKNOWLEDGING ACCOUNTABILITY?
A Comment on Secretary General, Supreme Court of India v.
Subhash C. Agarwal
HIGHER JUDICIARY1 in India has recently received a lot of
condemnation when Supreme Court of India preferred to appeal
against the judgment of Single Judge of High Court of Delhi 2 in
Secretary General, Supreme Court of India v. Subhash C. Agarwal.3
The impugned judgment upheld an earlier order of Chief Information
Commissioner (CIC),4 whereby CIC directed Central Public
Information Officer (CPIO) of the Supreme Court to furnish
information sought by the respondent in the present case, under the
Right to Information Act, 2005.5 The information sought was related
to disclosure of assets of judges of the Supreme Court and the high
courts submitted to the Chief Justice of India (CJI) pursuant to the
resolution passed by the full court of the Supreme Court on May 7,
1997.6 Amidst severe criticism by media and public at large, judges of
the Supreme Court of India and of several high courts voluntarily
declared their assets to save their honour and dignity and the faith that
the general public repose in them.
This judgment could have been a landmark- making a porthole in
the concrete wall created by the Indian judiciary around itself, but it
stopped just short of breaking the last brick. After giving sermons on
the significance of such a declaration to ensure accountability which
Honourable judges of Supreme Court of India and judges of the high courts in
India.
2
The Central Public Information Officer, Supreme Court of India v. Subhash
Chandra Agarwal, W.P. (C) no. 288/2009; judgment pronounced on Sep. 02, 2009.
Hereinafter impugned judgment.
3
MANU/DE/0013/2010; LPA no. 501/2009 in the High Court of Delhi. Judgment
pronounced on Jan. 12, 2010.
4
Dated Jan. 6, 2009. See supra note 3 para 5 for important excerpts of the CIC order.
5
See s. 8(1)(j) of Right to Information Act, 2005 (hereinafter the Act).
6
Supra note 3 at para 63. Hereinafter the 1997 resolution.
190
Acknowledging Accountability?
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See generally, Zemans, Dr. Frances Kahn, The Accountable Judge: Guardian of
Judicial Independence, 72 S Cal L Rev 625 (1999). See also para 65-84 for detailed
discussion on relation between independence of judiciary and accountability.
8
Exempted from disclosure under s. 8(1)(j) of the Act. See infra note 15.
9
Supra note 3 at para 116.
10
S. 6(3) - Where an application is made to a public authority requesting for an
information (i) which is held by another public authority; or (ii) the subject matter of
which is more closely connected with the functions of another public authority; the
public authority, to which such application is made, shall transfer the applicationto
that other public authority
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Acknowledging Accountability?
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Acknowledging Accountability?
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related.34 While discussing this point the court ignored its earlier
deliberations on requirement of enhanced standard of accountability
and responsibility for judges and narrowly interpreted public interest
to declare that details contained in any disclosure of asset is protected
as personal information under the Act.
The apprehension and panic shown by the judges, when they were
asked to disclose their assets, shattered the confidence of a common
man reposed in the impartiality and honesty of the judiciary. Instead of
keeping themselves absolutely above suspicion, the act of opposing
disclosure of assets brought them into the centre of suspicion. Actual
public interest lies in restoring faith of general public in the judiciary
and this interest is important and sufficient enough to disclose
information which is otherwise protected under section 8(1)(j) of the
Act.
Justice J.B. Thomas says, [C]itizens cannot be sure that they or
their fortunes will not some day depend upon our judgment. They will
not wish such power to be reposed in anyone whose honesty, ability,
or personal standards are questionable.35 The necessary consequence
of opposition to openness, which is a necessary concomitant of
democracy, will seriously undermine the faith reposed by general
public in the honesty, impartiality and integrity of the judicial system
of the country. The common man usually does not trust the
legislature and remain suspicious of the acts of the executive, but it
always trusts the judiciary. The sole reason of this blind faith is the
self-regulation and abstinence from extraneous influences exercised by
the judiciary, and that image is slowly but surely dampening.
If the judiciary is to save its honour and independence it needs to
act on its own without waiting for the legislature to intervene to enact
a law for disclosure of assets by the judges. The legislature is all set to
bring an enactment on disclosure of assets by judges, which is already
in pipeline.36 Though the newly introduced Bill was taken back for
34
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37
On Aug. 3, 2009, several members of the upper house, cutting across party
affiliations, joined hands to force the government to defer the introduction of the Bill
on the ground that the provisions are too lenient as the Bill exempted judges from
making public their assets and provided immunity against an inquiry. For details see
http://timesofindia.indiatimes.com/india/Govt-puts-off-judges-assetsbill/articleshow/4854197\cms.
* LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.
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would test the veracity of the allegations made, test the credibility of
the investigating apparatus, similar to the common mans parlance,
segregation of milk into milk and water into water. Such is the
importance of the trial stage; the final product of this stage is
elicitation of truth from the facts.
It is only after the trial stage the veracity of the facts would be
shoe-horned, without undergoing the trial it would not be wise on the
part of higher courts to discard the trial courts version. As a student of
law, we are taught that the Supreme Court and High Courts would not
meddle with the trial stage process. The reason for non-interference
has been evolved out of the wisdom of long practice. The criminal
judicial administration we have today has undergone rough deal of
continuous change for centuries of practice that has provided with the
best practice tested by time, such a practice should not likely be
disturbed. The honourable Supreme Court in Shakson Belthissor case6
at para 9 states: The said power is exercised by the court to prevent
abuse of the process of law and court but such a power could be
exercised only when the complaint filed by the complainant or the
charge sheet filed by the police did not disclose any offence or when
the said complaint is found to be frivolous, vexatious or oppressive.
The honourable Supreme Court itself is aware such power to
bypass the trial stage process is to be exercised cautiously and in
situation warrants interference in emergency to meet the ends of
justice. The facts of the case dont warrant such emergent
circumstance, however the honourable Supreme Court meddled with
the trial stage the reasons of interference were not recorded in the
given judgment. By applying my common sense I tried to trace the
elements of reasoning in the judgment but to my inability, failed
desperately.
The honourable Supreme Court in the present case exhibits
unprecedented ambivalent attitude. On the one hand it admits in para
15 referring to Pepsi Foods Limited and Another v. Special Judicial
Magistrate and Others:7
The magistrate has to carefully scrutinize the evidence bought on
record and may even himself put questions to the complainant and his
6
7
Supra note 1.
AIR 1998 SC 128.
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204
[Vol. 1 : 1
10
Id at 186.
LL.M., IV Semester (Two-Year Course), Indian Law Institute, New Delhi.