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olume 5, Issue 1, June 2015 ragyaan: Journal of Law a bi-annual refereed Journal Affordability of Medicine: A Serious Concern to Achieve Health for All Dr. Gargi Chakrabarti Social Stigma Surrounding Surrogacy and Prostitution in Indian Society: A Critique Ms. Sonali Kusum Role of Panchayati Raj Institutions in the Decentralization of Governance: A Critique Mr. Divyesh Choudhary, Ms. Sayantika Ganguly Alienating the Contours of Restorative Theory: Re-Examination of Punishments in Indian Criminal Justice SystemMs. Tishta Tandon Extra- Judicial Killings: Law and PracticeMs. Shrinkhala Prasad, Mr. Vikash Gaurav Justiciable Right to Food Security in India: A Critique Mr. Balwinder Singh National Refugee Law on the Lines of International Law: The Need of the HourDr. R. Seyon Residential Status and Taxability under the Indian Income Tax Act, 1961Mr. Ashish Patel, Ms. Shubhi Gaur Pragyaan: Journal of LawVolume 5, Issue 1, June 2015 Dr. D. K. BandyopadhyayVice Chancellor IMS Unison University, Dehradun Dr. Vijayan ImmanuelPro Vice Chancellor IMS Unison University, Dehradun Dr. Pawan K AggarwalAssociate Pro Vice ChancellorIMS Unison University, Dehradun Dr. Venugopal B. S.
Prof. & Dean-School of Law, IMS Unison University, Dehradun Associate Editor: Mr. Devendra Assistant Professor, School of Law,IMS Unison University, Dehradun International Advisory Board:
Prof. Janine S. Hiller Prof. Yoshitoshi Tanaka Professor of Business Law, Graduate School of Innovation Management Pamplin College of Business, Virginia, U.S.A.
Tokyo Institute of Technology3-3-6, Shibaura, Minato-ku, Tokyo, Japan Prof. Yousuf Dadoo, University of South Africa, Prof. Arnaldo Sobrinho de Morais Neto Pretoria, South Africa Lt. Col. Brazilina Military PoliceProfessor IESP/Fesp College, Brazil National Advisory Board:
Prof. A. Lakshminath Dr. Gokulesh Sharma Vice Chancellor, Chanakya National Law University, Patna, Bihar Law Secretary, Government of UP, Lucknow Dr. Manish Singhvi Former Vice Chancellor, Barkatullah University, Bhopal Advocate, Supreme Court of India, New Delhi Dr. P. S. Jaswal Former Additional Advocate General, Rajasthan Vice Chancellor, Rajeev Gandhi National Law University, Patiala Dr. R.Venkata RaoDr. Gurdeep Singh Vice Chancellor , NLSIU Vice Chancellor, RMLNLU, Lucknow Prof. A. K. Pandey Professor of Law, NLSIU, Bengaluru & Dean &Head, Faculty of Law, HNB Garhwal University, Former Vice Chancellor, Dr. Ambedkar Law University, Chennai Tehri Campus, Garhwal, U.K.
Prof. Balraj Chauhan Prof. Ashwani Bansal Former Vice Chancellor, RMLNLU, Lucknow, U.P.
Dean, Faculty of Law Professor of Eminence, National Law University, Jodhpur (Raj.) Prof. P. Iswara Bhatt Former Vice Chancellor Copyright 2015 IMS Unison University, Dehradun.
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Panel of Referees Prof. Balraj Chauhan Former Vice Chancellor Professor of Eminence Dr. Ram Manohar Lohia National National Law University, Jodhpur Law University, Lucknow, U.P.
Prof. K. P. S. Mahalwar Dr. Mridul Srivastava Head, Faculty of Law Ex Dean & Head, Faculty of Law, Rohatak University Rajasthan University, Jaipur Prof. K. C. Sunny Deputy Director (Legal) Competition Commission of India Kerala University Hindustan Times House Thiruvananthpuram, Kerala Prof. Subir K Bhatnagar Professor and Former Vice Chancellor Dean and Executive Director Vivekananda Institute of Professional Studies, IP University, New Delhi Prof. A. K. Pandey Dean & Head, Faculty of Law, Associate Professor HNB Garhwal University, University School of Law and Legal studies, Tehri Campus, Garhwal, U.K.
Guru Gobind Singh Indraprastha University,New Delhi Dr. J. K. DasHead, Dept of Law Kolkata University, Kolkata Associate ProfessorHead, Dept. of Law Dr. Ram Manohar Lohia National Professor and Former Vice Chancellor Law University, Lucknow, U.P.
Barkatullah University, Bhopal Prof. Nishtha Jaswal Head, Department of Law Punjab University, Chandigarh Prof. J. S. MannAssociate Professor of LawNational Law University, Delhi From the Chief Editor It is with much joy and anticipation that we present the June 2015 issue of our journal, Pragyaan: Journal of Law (Pragyaan: JOL).
Pragyaan: JOL is a bi-annual, peer reviewed, open access Journal that brings to the readers the articles which offer critical evaluation of the Indian legal system. It is committed to rapid dissemination of high quality research that shows directions for reform of our legal system. Priority is given to the contributions that demonstrate practical usefulness. This issue of Pragyaan: JOL presents deal with real world problems that are complex in nature. These cover the areas like affordability of medicine, right to food security, right to information, social stigma surrounding surrogacy, legal rights of refugees, restorative theory of punishment, role of Panchayati Raj institutions, and extra-judicial killings.
We are thankful to the authors for their scholarly contributions to the Journal. We express our gratitude to our panel of referees for the time and thought invested by them into the papers and for giving us sufficient insights to ensure selection of quality papers. Thanks are also due to Dr. Vijayan Immanuel (Pro VC), Dr. Dilip K. Bandyopadhyay (VC), Dr. M. P. Jain (Chancellor), the members of the Editorial Board, and the members of the Board of Management for their constant guidance and support. We would like to acknowledge the contribution of Dr. B. S. Venugopal (Editor), and Mr. Devendra (Associate Editor), and all the faculty members of School of Law for their contribution in preparing the reader friendly manuscript for the Press.
We invite contributions from the scholars, scientific community and industry practitioners to ensure a continued success of the journal.
We hope our readers find the contents, findings and suggestions contained in this issue of Pragyaan: JOL as informative, stimulating, and of some practical relevance. We welcome comments and suggestions for further improvement in the quality of our Journal.
Dr. Pawan K. AggarwalAssociate Pro Vice Chancellor IMS Unison University, Dehradun Pragyaan: Journal of Law (Pragyaan: JOL) is not just a collection and publication of a few articles and research papers of chosen experts on the subject, it is a gateway to research and expression of critical views by experts on contemporary socio-economic and politico-legal issues which shape and guide governance. It is also a window of expression. Pragyaan: JOL is a valued publication of the School of Law, IMS Union University, Dehradun. I feel honored to be associated with this prestigious Journal as Editor.
Pragyaan: JOL is the result of vision and efforts of eminent scholars. Our International Advisory Board comprises of prominent legal scholars from various countries. I must put on record my thanks and gratitude to Prof. Janine S. Hiller U.S.A., Prof. Yoshitoshi Tanaka, Japan, Prof. Yousuf Dadoo, South Africa and Arnaldo Sobrinho de Morais Neto, Brazil for accepting our invitation to become honourable members of the International Advisory Board. Also, our National Advisory Board comprises of academicians and legal experts. I wish to thank all members of the National Advisory Board for their indulgence in adding value and enhancing the utility of Pragyaan: JOL. I must put on record my thanks to honourable Shri. Amit Agarwal, Chairman, Board of Governors, Dr. M. P. Jain, Chancellor, Dr. Dilip K. Bandyopadhyay, Vice-Chancellor, Dr. Vijayan Immanuel, Pro Vice Chancellor and Dr. Pawan K. Aggarwal, Associate Pro Vice Chancellor for guiding me in this endeavor. I also thank Mr. Devendra, Associate Editor and my colleagues who have worked hand-in-hand for bringing out this issue of Pragyaan: JOL.
With Seasons Greetings, Dr. Venugopal B. S.
Professor & Dean- School of LawIMS Unison University, Dehradun Pragyaan: Journal of Law Volume 5, Issue 1, June 2015 CONTENTSResearch Papers / Articles Affordability of Medicine: A Serious Concern to Achieve Health for All .1-11Dr. Gargi Chakrabarti Social Stigma Surrounding Surrogacy and Prostitution in Indian Society: A Critique .12-18Ms. Sonali Kusum Role of Panchayati Raj Institutions in the Decentralization of Governance: A Critique .19-26Mr. Divyesh Choudhary, Ms. Sayantika Ganguly Alienating the Contours of Restorative Theory: Re-Examination of Punishments in Indian Criminal Justice System.27-32Ms. Tishta Tandon Extra- Judicial Killings: Law and Practice.33-40Ms. Shrinkhala Prasad, Mr. Vikash Gaurav Justiciable Right to Food Security in India: A Critique.41-48Mr. Balwinder Singh National Refugee Law on the Lines of International Law: The Need of the Hour.49-53 Dr. R. Seyon Residential Status and Taxability under the Indian Income Tax Act, 1961.54-61 Mr. Ashish Patel, Ms. Shubhi Gaur Affordability of Medicine: A Serious Concern to Achieve Health for All Dr. Gargi Chakrabarti* Health is a primary concern for every nation. Access to medicine is the core concept of health for all and price is the main barrier for patented versions of the medicine. TRIPS provides exceptions but the implementation of them is extremely difficult. This paper analyses the relation of IPR protection with the hindrance of accessibility and affordability of medicine; evaluates the practical aspects of implementation of TRIPS flexibilities; analyses whether the measures taken are adequate enough to ensure availability of medicines and assesses how to incorporate essential terms for access to medicine. Key Words: Access to medicine, Pharmaceutical patent, Compulsory license, Data exclusivity, Parallel importation.
1. Health: Fundamental Right of Human treaties have acknowledged or referred to the right to health or to its elements, for special consideration. Health is a primary concern for every nation and The right to health is relevant to all States: every State has recognized as a fundamental right of human being. ratified at least one international human rights treaty Regardless of age, gender, socio-economic or ethnic recognizing the right to health. Moreover, States have background, it is considered that health is the most basic committed themselves to protect this right through and essential asset and every single man has a right to live international declarations, domestic legislation and policies, and international conferences. In recent years, there is an ever growing focus on the right to the greatest 'Right to health' concept was first articulated in the attainable standard of health, for example, by human Constitution of the World Health Organization (WHO) in rights treaty monitoring bodies, WHO and by the 1946. Preamble of this constitution states clearly that it is Commission on Human Rights (now replaced by the one of the fundamental rights of every human being to Human Rights Council), which in 2002 declared the enjoy highest standard of health 'without distinction of mandate on the right of everyone to the highest attainable race, religion, political belief, economic or social standard of physical and mental health. condition'. Article 25 of 1948 Universal Declaration of Human Rights also contemplates the right to have Article 21 of the Constitution of India envisages that, "No 'standard of living, adequate for the health and well- person shall be deprived of his life or personal liberty being'. Right to health is also recognized in the 1966 except according to procedure established by law" which could be related with the health care aspect. WHO is International Covenant on Economic, Social and Cultural actively escalating its role in providing technical, Rights. Since then, other international human rights Assistant Professor of Law, National Law University, Jodhpur.
Document of the Constitution of the World Health Organization (WHO) of 1946 available at http://www.who.int/governance/ eb/who_constitution_en.pdf last visited on April 04, 2015 Universal Declaration of Human Rights, 1948 available at http://www.un.org/en/documents /udhr/index.shtml last visited on April 04, 2015 Article 12 of The International Covenant on Economic, Social and Cultural Rights, 1966 available at http://www2.ohchr.org/english/ law/cescr.htm last visited on April 04, 2015 WHO, Factsheet No. 31 'The Right to Health' prepared by Office of the United Nations High Commissioner for Human Rights, WHO press, available at http://www.ohchr.org/Documents/Publications/Factsheet31.pdf last visited on April 04, 2015 Available at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_810.pdf last visited on April 04, 2015 The Constitution of India, 1950, Part III "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 intellectual and political leadership in the field of health for the social and economic welfare and 'to balance the and human rights. The measures adopted by WHO in this rights and obligations'. It is mentioned in the Doha regard are (i) to support governments to integrate a human Declaration that "the TRIPS Agreement does not and rights based approach in health development, (ii) to should not prevent members from taking measures to strengthen WHO's capacity to incorporate human rights- protect public health", it is affirmed "that the Agreement based approach in its work, and (iii) to accelerate the right to can and should be interpreted and implemented in a health concept in International law and International manner supportive of WTO Members' right to protect development process. A landmark declaration is adopted public health and, in particular, to promote access to by the Ministerial Conference of the World Trade Organization medicines for all". It provides the right to member State to (WTO) in 2001 in Doha, on the Agreement on Trade-Related use the TRIPS flexibilities like 'compulsory licensing' and Aspects of Intellectual Property Rights (TRIPS) and public health 'exhaustion principle of IPR' (for parallel importation) with which is discussed in the next segment. its full implementation according to the individual necessity of the respective State. The Committee also 2. Discussion on Public Health in DOHA encouraged the Member states to promote technology transfer to the least-developed country Members pursuant The grim significance of public health issues, mainly life to Article 66.2. The Committee also recognized the impact threatening diseases like HIV/AIDS, tuberculosis, malaria of intellectual property protection on the hike of prices of and other epidemics affecting developing and least medicine along with development of new medicines. This developed countries became concern for WTO Ministerial is discussed in detail further with the practical examples. Committee since Fourth Session of Ministerial Conference 3. Impact of Price of Medicine on its in Doha on 2001. The Committee stressed for "WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and There are many obstacles in the way of access to medicine international action to address these problems". for patients of developing countries and price of medicine 2.1 Article 8 of TRIPS is one of the important factors. HIV/AIDS is one of the most deadly diseases of the century and a real threat to almost Article 8 of TRIPS authorizes member States to amend their all countries. Arrangement of the drugs (anti-retroviral legal regimes and regulations to incorporate essential drugs, hereinafter ARV) for treatment of HIV/AIDS is a measures for protection of public health and promotion of serious concern, more so for the economically technological development as per the need of the State compromised developing and least developed countries. according to the socio-economic status. It further contemplates that Member States are permitted to make 3.1 Situation in Sub-Saharan Countries amendments in their legal regime "to prevent the abuse of intellectual property rights by right holders or the resort to Countries in sub-Saharan Africa are the most affected practices which unreasonably restrain trade or adversely one, about 34 million people of those countries are affect the international transfer of technology". affected by HIV/AIDS and of them approximately 11.5 million have died. 44 million children in 34 developing 2.2 Article 7 of TRIPS countries are estimated to have lost one of their parents Article 7 of TRIPS is on pursuing the 'promotion of due to that disease by the end of 2010. Though access to technological innovation' and 'transfer and dissemination ARV has increased rapidly in recent years, still only less of technology' for the benefit of both users and producers, than 50% (about 4 million) of patients needing ARV (about The WHO report on 'The Work Of WHO On Health And Human Rights' prepared by Health and Human Rights Team Department of Ethics, Equity, Trade & Human Rights/Information, Evidence and Research (IER/ETH) available at http://www.who.int/hhr/hhr_activities_eng.pdf last visited on April 04, 2015 Doha 9-14 November 2001 "Declaration on the TRIPS Agreement and Public health" WT/MIN(01)DEC/W/2, available at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm last visited on April 05, 2015 Ibid. Para 1 Ibid. Para 2 Article 8 of TRIPS Agreement available at http://www.wto.org/english/docs_e/legal_e/ 27-trips_03_e.htm last visited on April 05, 2015 Article 7 of TRIPS Agreement available at http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm last visited on April 05, 2015 Ibid. Para 4 Ibid. Para 5 Ibid. Para 3 See Congressional Research Service, AIDS in Africa: Issue Brief, by Copson, Raymond W., CRS Issue Brief IB10050, May 14, 2001.
Stephens, Angela, "AIDS Becomes a National Security Issue," National Journal ( Nov. 18, 2000).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 9.5 million) are actually getting the treatment.18 Overall governments or government agencies as a qualification negative impact of the disease is largely affecting the poor for acquiring market approval. But interpretation of and stability & social infrastructure of the economy. Article 39(3) of TRIPS clarifies that it is related with 'data Currently ARV drugs are available in the market and if used protection' and does not necessarily create a new properly these can decrease the mortality and morbidity of intellectual property right. the disease. In the US, the death rate due to AIDS has In India there is no provision for data exclusivity. The started decreasing since 1998, and the simple reason for domestic sector including the Indian Pharmaceutical the same is accessibility and affordability to the costly ARV Alliance ("IPA") does not believe that the Indian medicines. The patients in the developing and least Government should concede to any demand for data developed countries are not in a situation to afford the exclusivity. But the Indian government is currently costly treatment for AIDS with the patented ARV drugs. considering the addition of data exclusivity provisions in an 4. Intellectual Property Protection for Drugs amendment to the Indian Drugs and Cosmetics Act, 1940. In Syngenta India Ltd vs. Union of India case Delhi High Court held that Syngenta's argument that Article 39(3) mandates that data exclusivity is inherently flawed and they It is obligatory for all the TRIPS signatory countries to make are wrong in assuming that the Reddy Committee amendment in the national legal regime for IPR to include recommended "data exclusivity" as the only way to comply the strict TRIPS provisions especially for pharmaceutical with Article 39(3). The court has observed that, in fact, patents. In India, for example, The Patents (Amendment) preventing data from "unfair commercial use" is not the Act, 2005 includes product patent for pharmaceuticals same thing as preventing "reliance" on the data. which were not available beforehand. The new law came Interestingly, although the Reddy Committee does not into effect on January 1, 2005. recommend "data exclusivity" for pharmaceuticals, at 4.2 Data Exclusivity least for the time being, they do so for agro-chemicals and traditional medicines.
Patent Protection provides exclusive rights and market monopoly for a limited period of time (20 years) which is 4.3 Incremental Innovation good time period to get market return for most industries. The pharmaceutical industry produces thousands of new For pharmaceutical industry the situation is a little different, drugs which are based on many smaller incremental as pharmaceutical products have to undergo rigorous innovations like other technological and value-added evaluation for quality, efficacy and safety (formally known industries. Incremental innovation can be defined as as 'clinical trial') which usually takes 6-7 years and production of newer version of existing drugs which will sometimes it takes even 15 years. Then, the 'test data' has give more therapeutic effect and/or produce fewer side to be submitted to the national regulatory authorities, who effects and overall provide better patient compliance. In will do the safety and efficacy assessment and provide USA, general patent term for drug is twenty years, but that market authorisation. Such data is very essential as it can be extended maximum up to five years by showing contains all relevant details of clinical trials; originator incremental innovation. Under the Hatch-Waxman Act, companies thus want to protect these data under 'data the government has a system of patent term 'restorations' exclusivity' to prevent third parties from using it for under which monopoly of the original patentee can be commercial exploitation. extended for a maximum period of 5 years in addition to Article 39 of TRIPS Agreement is related to the 'protection the initial patent term. In the European Union, there exists a of undisclosed information' and according to view of system of supplementary protection for drugs but certain countries' it provides obligation to Member States supplementary protection certificate (SPC) is not only to create legal provision to respect trade secret, related with incremental innovation. Aim of the extension particularly when such trade secret data are submitted to of protection is to extend the market exclusivity and to UNITAID Factsheet on HIV/AIDS published on July 2010 available at http://www.unitaid.eu/images/Factsheets/ hivaidsfactsheet_july2010_en.pdf last visited on April 07, 2015 "Impact of HAART on AIDS-Related Death Examined," AIDS Weekly (24 July 2000).
Article 39(2) and Article 39(3) of TRIPS Agreement.
Reddy Committee (comprised of Mrs. Satwant Reddy & Mr. Gurdial Singh Sandhu) Report on 'Steps to be taken by Government of India in the context of Data Protection Provisions of Article 39.3 of TRIPS Agreement' May 31, 2007 available at http://chemicals.nic.in/DPBooklet.pdf last visited on April 07, 2015 Denise Dunlap-Hinkler (2010)"Astory of Breakthrough vs. Incremental Innovation: Corporate Entrepreneurship in Global Pharmaceutical Industry" Fox School of Business Discussion Paper 1105-10 available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1554123 last visited on April 07, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 delay the market entry of generic versions. holder companies usually put the unusually high price on their patented product. United States' Government 4.4 Patent Linkage Accountability Office (GAO) has done a study in 2009 to Patent linkage is a process of linking the patent of the ascertain the causes of high price of brand name drugs, by original product with the market approval and essentially interviewing the representatives from the manufacturer does not allow any third party to enter into market before and distributor companies and it was found that expiration of the patent term. It is particularly important in intellectual property protection and market exclusivity case of pharmaceutical products as it is having direct provisions are the key factors behind high price rise of the impact on generic product to enter into the market medicines. Some interesting facts about drug price hike whereby reducing the competition and increasing drug which were unveiled by that study are as follows: cost. In USA, patent linkage is provided by legal regime Overall spending on the drugs increased on an under the Hatch-Waxman Act 1984. Food and Drug average upto 10% per year since 2000.
Authority (FDA) maintains a list of patented drugs with therapeutic equivalents in the Orange Book. Any generic Extraordinary price rise in each year is more than version of a drug which is listed in the Orange Book will not double during 2000-2008.
be provided with authorization of marketing approval. Most extraordinary price increase range is between Other developed countries like Australia, Canada and 100% - 499%.
Singapore have similar provisions like USA. In European Union, patent linkage system is not accepted legally. In 6. Exceptions/Limitation Provided by TRIPS India, patent linkage system is not available in legal In the fourth Ministerial Conference held in Doha, Qatar in regime. Marketing approval in India is provided by the 2001, Members adopted a Declaration on Public Health Drug Controller General of India under Drugs and affirming the right of Member States to take legal Cosmetics Act 1940. If the Drugs Controller has to check measures for protection of public health. the patent linkage of each and every drug applying for marketing approval, it will be an extra burden for it; 6.1 Compulsory Licensing especially when there is no existing database similar to 'Orange Book' of US. Relevant legal provisions have been It discussed the availability of compulsory licensing discussed in two recent cases of Bristol-Mayers Squibb vs. exception to patent protection provided by TRIPS Article Hetero Drugs Ltd and Bayer Corporation and Ors vs. 31(f) for the developing and least developed countries who are having insufficient or no pharmaceutical Cipla, Union of India (UOI) and Ors. manufacturing capacity and suffering from intractable 5. Effect of Intellectual Property Protection on public health crisis. Compulsory licensing provision in TRIPS actually allows national governments to issue permit to a company other than the patent holder to supply Markets are morally neutral and they operate on the generic version of patented medicine in case of national principle of scarcity, so, scarce products cost more than emergency or public health crisis without patent owner's widely available products. Lack of therapeutically consent. Condition for issuing the compulsory license equivalent medicine and limited competition is one of the according to Article 31(f) is being "predominantly for the causes of high price of drugs. Patent and allied protection supply of the domestic market of the Member authorizing provide limited period of protection from competition in such use"; so the national government can order the the market and during that limited time period generic version of drugs from the domestic producers and manufacturer company tries to earn maximum return for its then only the valid patent can be by-passed. financial investment. To gain maximum profit, patent Numerous countries, including a number of African Galantucci, R. (2007) "Data protection in a US-Malaysia free trade agreements: New barriers to market access for generic drug manufacturers" Fordham Intellectual Property, Media, and Entertainment Law Journal, 17:1083 http://www.accessdata.fda.gov/scripts/cder/ob/default.cfm last visited on April 07, 2015 Finston Consulting, (2006) "Overview of Patent Linkage" available online at http://www.finstonconsulting.com/version03/files/Overview.pdf last visited on April 07, 2015 CS(OS) No. 2680/2008 WP(C) Number 7833/2008 Report to Congressional Requesters on "Brand-Name Prescription Drug Pricing: Lack of Therapeutically Equivalent Drugs and Limited Competition may contribute to Extraordinary Price Increases" December 2009, GAO-10-201 See WTO Ministerial Conference, Declaration on the TRIPs Agreement and Public Health, WT/MIN(01)/DEC/2 (Novs. 20, 2001) [hereinafter Doha Declaration]. "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 TRIPS Article 2838 countries sent an emotional appeal to TRIPS Council to supports the parallel import concept; as reconsider this issue. Afterwards, in August 2003, the it is interpreted that patent owner cannot legally prevent negotiation regarding Implementation of Paragraph 6 of the importation of the product from another country. This is the Doha Declaration on TRIPS Agreement and Public subject to 'exhaustion principle' of Article 6, according to Health (Implementation Agreement) was achieved and which the exclusive rights are exhausted after the first sale finally a solution to Paragraph 6 Mandate is made by of the patented product. At the DOHA Declaration it is creation of an exception to Article 31(f) according to which clarified that interpretation of Article 6 will be such that the the nations with less or no drug manufacturing Members are free to establish the national legal regime for infrastructure can override the patent protection for exhaustion of rights without challenge. Indian Patent Act, essentially needed medicine and can import generic 1970 contained the provisions of parallel import in versions of patented medicines by using compulsory Section 107A (b) which is further amended in 2005 licensing to tackle public health crisis. In India, compulsory license can be granted any time after 7. Analysis of Practical Implementation of three years of the grant of patent. For exporting the generic drug to a country, the procedure has been Theoretically, the provisions of compulsory licensing and 6.2 Bolar Provision the parallel import sounds relatively good options to cope up with the problems related to access to medicine, The 'Bolar provision' is another well known exception especially those associated with the patent protection. But, granted by Article 30 of TRIPS Agreement, according to in reality, the situation is different. Thailand and Brazil are which countries may provide limited exception to the two developing countries which tried to use these exclusive rights given by the patent but that exception provisions but some legal problems have come across. should not unreasonably prejudice the legitimate interest Following are the examples of such cases which elaborate of the patent owner. It is an exception especially for the the flaws in these provisions during their practical research provisions and its role in respect of access to medicine needs analysis and comprehension. In India, Amended Patent Act, 2005 provides Bolar exemption as Brazil was using 'Efavirenz' as the main ARV in 2007, per Section 107A; which allows generic drug originator Company of this drug was Merck under the manufacturing companies to make or import patented brand name 'Stocrin' and cost was US$580 per person per medicine and to submit the information for trials before year. Brazil Government provides free medicines to all expiry of patents. HIV/AIDS patients under National STD/AIDS Program. In April 2007, 'efavirenz' was declared as a drug of public 6.3 Parallel Imports interest. Government held several meetings with the Parallel importation is the production or selling abroad of original company, Merck, for negotiation of the reduction of patented medicine with the consent of patent owner and price; but Merck proposed for the technology transfer and subsequent importation of same medicine in the domestic only 2% price reduction of the drug. Finally, later in the year, market at a cheaper price without consent of the owner. Naomi Koppel, WTO Lets Poor Nations Import Cheap Drugs, ASSOCIATED PRESS, Aug. 30 2003, available at http://www.aegis.com/news/ap/2003/AP030847.html last visited on April 07, 2015 Council for TRIPS, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (Aug. 30, See Council of TRIPS, The General Council Chairperson's Statement (Aug. 30, 2003), available at: http://www.wto.org/english/news_e/ news03_e/trips_stat_28aug03_e.htm last visited on April 07, 2015 Section 84(1)(c) of Indian Patent Act (as Amended in 2005).
TRIPS Annex 1C, Art. 30 available at http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm last visited on April 07, 2015 Section 107A(a) of Patents (Amendment) Act: any act of making, constructing, using, selling or importing a patented invention solely for uses reasonably related to development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product.
TRIPS Annex 1C, Art. 28 available at http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm last visited on April 07, 2015 TRIPS Annex 1C, Art. 6 available at http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm last visited on April 07, 2015 See Chiapatta, VS. (2000) "The desirability of agreeing to disagree: The WTO, TRIPS , International IPR exhaustion and a few other things" Michigan Journal of International Law 21:333.
See Kuanpoth, J. (2008) "Appropriate Patent Rules in Developing Countries – Some deliberations based on Thai Legislation" Journal of Intellectual Property Rights 13:447-455.
Section 107A(b) of the amended Act: Importation of patented products by any person from a person who is duly authorised under the law to produce and sell or distribute the product, shall not be considered as an infringement of patent rights. "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Brazil issued the compulsory license for five years with 1.5% shipments alleging that those medicines are 'counterfeit' royalty payment to Merck. Pharmaceutical manufacturer and thus violating the intellectual property law. Afterwards Farmanguinhos, part of the Oswaldo Cruz Foundation of the the producer company Ind-swift was compelled to send all Government of Brazil, used the patent specification. But that the shipments via Malaysia and Singapore which costed was not sufficient. It had to perform fresh research activities them two times. In Februray 2009, one ARV shipment and in 2009 generic version came in the market. That (abacavir) had been seized in the same airport. But later on reduced the price of efavirenz by 93%. Merck tried to stop the United Nations (the recipient for patients in Nigeria) generic production by filing a preliminary injunction but that lodged an official complaint against this.
was refused by Brazilian court. 8. Competition Law Intervention South Africa introduced a legal framework regarding the national drug policy in 1997. This was The Medicines and Intellectual property is subjected to exclusive control of the Related Substances Control Amendment Act Number 90. owners by virtue of intellectual property rights; but According to this Act, government can issue the permit of competition law encourages the competition by avoiding parallel import and/or compulsory licensing for public market barriers and thus provides consumer benefits. The interest by overriding patent rights. After enactment of this correlation between expanding IPR and competition law is regime, consequences were: (i) South Africa had been particularly multifaceted in case of any developing country included in Section 301 Watch List by US and a complaint as strong IPR protection is enforced by TRIPS as an filed against it in WTO, and (ii) about 40 pharmaceutical obligatory criteria and competition law operative body is companies took legal action against South Africa on the frequently missing there. A strong incentive to the new ground that this law was contrary to the South African technologies can be provided by competition policies in a constitution and WTO patent rule. South African particular market and particularly can tackle the situations Government reaffirmed its commitment for TRIPS where costs of IP protected pharmaceutical products are Agreement. Finally, in 1999, US stopped its action against South Africa and in 2001 the drug companies took off their In the US, courts have considered that extending patent One important ARV drug Didanosine (ddI) was rights beyond the scope of the grant violates the antitrust manufactured by Thailand in a powder form as patent laws. The FTC has intervened in some cases of fraudulently applied to ddI only for tablets so there was no infringement obtained patents. In the 1960s, it challenged agreements of patent. Not only that, the ddI patent was only valid for between Pfizer and American Cyanamid relating to tablets containing 5-100 gm ddI. But Thailand produced tetracycline patents and ordered the compulsory licensing ddI tablets outside the dosage range i.e. 125gm ddI. In of the patent in question at a fixed royalty. Pfizer and November 26, Thailand first issued compulsory licensing American Cyanamid were found to have made mis- and imported generic 'efavirenz' from India at half of the representations to and withheld essential information from original price. But in January 2007, Thailand issued two the patent examiner, thereby deceiving him into granting a more compulsory licenses for cardiovascular drugs. As a patent that otherwise would not have been approved result of that US Trade representative referred to these (Azcuenaga, 1995). compulsory licenses and added Thailand to its 'priority watch list'.
In a more recent case, the FTC also found and condemned practices aimed at deceiving the US patent office to unduly European customs authorities were trying to stop the obtain patent protection: "Through Bristol's [Bristol-Myers shipments of legitimate generic versions of medicines Squibb Company] decade-long pattern of alleged while being shipped from India or China to the destination anticompetitive acts, Bristol avoided competition by countries in Latin America or Africa. Drugs are seized abusing federal regulations in order to block generic entry; mainly in airports of Netherland or Germany. According to deceived the US Patent and Trademark Office (PTO) to the view of some reports, the big pharmaceutical obtain unwarranted patent protection; paid a would-be companies putting pressure on customs to stop these generic rival over USD 70 million not to bring any Summary of the presentation of J.M. do Nascimento Júnior, "Compulsory Licensing of Efavirenz in Brazil" Prepared by Ministry of Health, Brazil on Access to Pharmaceuticals in Rio meeting February 23, 2010 'Country experiences in using TRIPS safeguards' WHO Briefing Note on Access to Medicine, February 2008 Prepared by Martin Khor 'Row over European seizures of low-cost drugs' Third World Network, August 10, 2009 available at http://www.twnside.org.sg/title2/gtrends/gtrends262.htm last visited on April 08, 2015 The decision was confirmed by the court in Charles Pfizer & Co. vs. Federal Trade Commission, 401 F.2d 574 (6th Cir. 1968), cert. denied, 394 U.S. 920 (1969).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 competing products to market; and filed baseless patent Low standard of patentability and faulty patent infringement lawsuits to deter entry by generics" (FTC, examination process can provide 'poor quality' patents which impede competition and the expectation of acquiring patent rights in order to Similar abuses were found and condemned in Europe. harass competitors, increase the likelihood of "sham Thus, the European Commission determined that AstraZeneca misused government procedures in order to exclude generic firms and parallel traders from competing Applying patent for 'frivolous inventions' is always anti- against its product Losec. The abuses consisted, in particular, in the misuse of the patent system by knowingly making misrepresentations to patent offices with a view to Overbroad' patent claims can disturb market stability; extending the basic patent protection for Losec. The Package patent' i.e. accumulation of patents may misleading information "was initially provided by produce anti-competitive effects by extending market AstraZeneca in the context of its applications to several power on genuine patent to the illegitimate one; patent offices in June 1993 and December 1994 within the EEA for extra protection for omeprazole (the active Patent thickets' may give rise to concern for consumers as competitors may come into some form of substance in AstraZeneca's product Losec) in the form of so agreement or co-operation (including cross- called supplementary protection certificates." licensing). It may also raise competition law concerns. Case of refusal of Merck to grant Dobfar a license for When an overlapping set of patent rights (belonging production of an active ingredient for production of the to various companies) exists, those seeking to antibiotic 'carbapenem' can be cited as an example of commercialize new technology need to obtain abuse of a dominant position. In this case, the Italian licenses from multiple patentees. Co-operation Competition Authority (ICA) decided to grant a among competitors in different forms (including compulsory license. The ICA considered that Merck's cross-licensing) may be necessary to navigate the refusal to license its product, which was covered by a patent thicket, ultimately limiting competition Certificate of Complementary Protection, was an abuse of (Shapiro, 2001).
its dominant position; since it prevented Dobfar from producing the active ingredient and enabled Merck to 8.3 Compulsory Licensing from Competition maintain its dominance over the pertinent pharmaceutical markets, cutting out potential competitors. That ingredient Compulsory licensing can be used to reduce the anti- was a necessary resource for the production of generics by competitive practices. In the US, the grounds for granting Merck's potential competitors, whereas Dobfar was an compulsory licenses under competition law have included indispensable supplier for such competitors (Coco and the use of patents as a basis for price-fixing or entry Nebbia, 2007, p. 452). restricting cartels, the consummation of market- 8.2 Anti-competitive Effects of Patent concentrating mergers in which patents played an important role and practices that extended the scope of Following are some anti-competitive effects of patent patent limitations beyond the bounds of the patented subject matter. Compulsory licenses may be used in cases The lenient standards of patentability applied by some patent offices have encouraged applications on trivial of cross licensing that unduly limit competition. The courts can also play a pro-competition role. In some countries pharmaceutical industry as "ever-greening". They are (e.g. Germany) they are in charge of granting compulsory the result of various patenting policies, such as licenses. In other cases, they can take an active role in "blanketing", "flooding", "fencing", "surrounding" avoiding anti-competitive behaviour by limiting the rights (Granstrand, 1999, p. 221-222), under which firms conferred by IPRs. In some cases, a decision may search for patent protection to block or delay effectively amount to granting a compulsory license on competition in either innovation, technology or "equity" grounds.
product markets. There are many examples of abusive requests of interlocutory injunctions in Latin America. In Argentina, for Commission Decision of 15 June 2005 relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement (Case COMP/A.37.507/F3 — AstraZeneca), Official Journal of the European Union 30.11.2006.
ICA also granted an interim measure, which was confirmed by the Italian Regional Administrative Tribunal (TAR) of Lazio (TAR Lazio 7 March 2006, n 1713).
Decision A364 Merck—Principi Attivi in Boll. 11/2007 available at www.agcm.it last visited on April 07, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 instance, Bristol Myers Squibb obtained such an injunction manufacturing companies are subject to antitrust against a local firm on the basis of a patent (AR enforcement. Price fixing agreements, certain 017747B1) protecting a formulation of didanosine, a monopolistic attitudes and anti-competitive practices are drug administered to HIV patients that was not developed subject to review and enforcement action. Any anti- by Bristol Myers Squibb and which is in the public competitive agreement between patent holder companies and generic manufacturer can be challenged by the respective authority. In USA, for example, the Federal In Venezuela, the competition authority found that Trade Commission (FTC) officials have filed cases Laboratories WYETH S.A. had abused a patent on a challenging 'pay-to-delay' agreement in which a patent pharmaceutical formulation of venlafaxine to threaten a holder company promised to share a percentage of profit local company and block its entry into the market with a with a potential generic competitor for delaying the competing medicinal product, thereby violating Article 6 marketing of the generic version. of the Venezuelan competition law.
9.2 Price Reduction Measures by India 8.4 Parallel Importation India, being a leading producer of generic version of Parallel trade may also be impeded by private drugs, is now engaged in increasing research and arrangements that unduly distort competition. In a number development to produce brand name drugs. Indian of cases, the anti-competitive effects of restraints on government is supporting the pharmaceutical industry by parallel imports have been considered. Thus, the several measures: (i) permitting 100 % Foreign Direct European Commission applied Article 81 of the EC Treaty Investment (FDI) for manufacture of drugs and in cases relating to the parallel trade of pharmaceutical pharmaceuticals provided the activity does not attract products within the Community. In Sandoz (1987) and Bayer (1996), also known as the Adalat case, the compulsory licensing or involve use of recombinant DNA Commission fined the pharmaceutical companies for technology and specific cell / tissue targeted formulations, having agreed on an export ban with their wholesalers. (ii) tax incentives under the Income Tax Act, 1961 for in- The Commission considered that national price control house R&D, (iii) life saving vaccines have been exempted regulations were insufficient justification for impeding from excise duty, (iv) clinical trial of new drugs exempted parallel trade. Banning of parallel trade was also found to from service tax to make India a preferred destination for be anti-competitive in the already mentioned case relating drug testing, (v) anti-AIDS drugs and life saving vaccines to Astra Zeneca's anti-acid product, Losec. The Peruvian exempted from excise duty to encourage companies for competition law enforcing authority, INDECOPI, which is production, (vi) all drugs and materials used in clinical also competent in industrial property matters, denied a trials will be provided customs and excise duty exemption, trademark owner, the right to exclude parallel imports, (vii) companies in knowledge-based pharmaceutical based on Article 157 of Decision 486 ("Common Regime business to be provided equity support, (viii) customs duty on Industrial Property"). decreased to 5% on 10 anti-AIDS and 14 anti-cancer drugs, and (ix) Duty on certain life saving drugs, kits and 9. The Way Forward equipment reduced and such drugs are also exempted from excise duty and countervailing duty. Other price From the moral and ethical point of view and from the control measures by India are also important, such as (i) legal perspective, it is essential to find out a solution to the expansion of price controls to every medicine on India's problem of accessibility and affordability of drugs. Some Essential Drug List, (ii) for price monitoring system of sincere efforts from governments, non-government patented medicines, India has established National Pharmaceutical Pricing Authority (NPPA) to fix or revise the pharmaceutical companies are worth mentioning here, which would be the path-finder for future. prices of controlled bulk drugs and formulations and also to enforce prices and availability of the medicines under 9.1 Legal Challenges Against Pharma Giants the Drugs (Prices Control) Order, 1995, and (iii) US and India have started co-operating and synergizing their It is not possible to challenge a company legally for efforts to prevent HIV/AIDS and also provide the required charging high price for the brand name drugs, but drug Bristol Myers Squibb Company s/medidas cautelares, 22 February 2007.
Superintendencia para la Promoción y Protección de la Libre Competencia, Resolución Nº SPPLC/0076-06, Caracas, 26 de Diciembre de See online at http://www.hhlaw.com/files/Publication/937ed0df-08d0- 4722-9cae-914d168747b8/ Presentation/PublicationAttachment/ 1429ab35-1c2b-440f-a59adef47e41c464/1701_EPC_Summer_2004_p30-31.pdf last visited on April 08, 2015 Commission Decision of 15 June 2005 relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement (Case COMP/A.37.507/F3 — AstraZeneca), Official Journal of the European Union 30.11.2006.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 relief measures in mitigating the sufferings of the victims, and second-line drugs. Since then, CHAI and UNITAID mostly comprising of the deprived and depressed sections have accomplished collective price reductions of 30 of society identified on the basis of socio-economic percent for second-line ARVs and 60 percent for pediatric ARVs. In addition, CHAI and UNITAID made new pediatric fixed-dose combinations (FDCs), priced at just $60 per 9.3 Pharma Giants as Ice-Breakers child per year, available to more than two dozen countries GlaxoSmithKline has taken few bold and appreciable in 2007. Access to CHAI pricing agreements has become steps to reduce the barrier of accessibility and affordability. widespread as the users can access prices under the Their efforts are specifically in following four areas: original ceilings set by CHAI. In the early 2008, about 2 (i)"preferential pricing of our antiretrovirals, anti-malarials million people living with HIV, globally, benefitted from and vaccines, (ii) investing in research and development ARVs purchased under CHAI agreements.
(R&D) that targets diseases particularly affecting the These are few examples of the way forward to the world of developing world, (iii) community investment activities and better accessibility and affordability of essential medicines. partnerships that foster effective healthcare, and (iv) Though it has to be remembered that the actual quantum innovative partnerships and solutions, such as voluntary of the problem is much greater and need more licensing." Roche, another multinational pharmaceutical comprehensive and global efforts to minimize it in a company, has undertaken similar approach, for example, it follows differential business model for different countries according to their socio-economic status and provides 10. Conclusion and Suggestions essential medicines for the people in urgent need without During earlier era when no antibiotic was available, many any charges through their Patient Assistance Programmes people used to die without treatment. With the invention of (PAPs). In partnership with governments, it helps to penicillin, antibiotic has emerged. This is one example of establish projects for supply of medicine for a specific many such success stories. Medicine is a product meant for country and for a specific disease. For example, "in Egypt, survival, it is not a luxury. The advancement of technology a lower-middle-income country, hepatitis C prevalence is has made the chances of combating a disease easier. But, amongst the highest in the world, affecting up to 12% of there is a need for continuous supply of medicine for all the country's population, Roche has worked with the probable illnesses to reduce overall mortality and Egyptian government to initiate the National Ministry of morbidity, globally. One issue here is availability and Health (MOH) Project for Treating Chronic Hepatitis C affordability, as there is divergence in socio-economic (CHC), resulting in a vast increase of patients who now structure and cultural aspect among the countries. With have access to treatment". In least developed countries, increasing global trade, transportation facilities, there are no patents for any Roche medicines and no knowledge and technology sharing, access to medicine enforcement of ARV patents.
has improved, culminating an increase in survival rate of 9.4 Efforts of Non-Government human beings. But, at the same time, it created a very complex situation of balancing the public interest and human rights concern, and investment from Since 2003, NGO Clinton Health Access Initiative (CHAI) pharmaceutical companies with their incentive and profit. is trying hard for pricing agreements and has successfully Accordingly, the study focuses on all the factors related negotiated for 40 formulations of antiretrovirals (ARVs) with access to medicine, like patent protection specifically with eight companies. Presently, more than 70 countries product patent regime, transactional IPR issues like data have access to reduced pricing for these medicines. In exclusivity, incremental innovation, impact of generic 2006, CHAI entered into a partnership with the medicine, available flexibilities like compulsory licensing international funding organization UNITAID to merge the and parallel import and whether constitution of different purchasing control of UNITAID with CHAI's model of price countries and human rights has addressed this issue. negotiations in order to amplify the availability of pediatric Discussion of all these factors was done to find a balanced Aditi Singhai , "Indian pharma and new patent regime" on 9 October 2009 A Publication of GlaxoSmithKIine Government Affairs, Europe and Corporate, "Intellectual Property and Access to Medicine in developing Countries" available online at http://www.gsk.com/responsibility/cr-review-2006/access-to-medicines.htm A Report of Roche on "Access to medicines and Diagnostics: Focused on Developing Countries" A Report by Prof. Joseph Straus "Promoting Access to Medicines Through Balancing Patent Rights and responsibilities" in WIPO Conference on Intellectual Property and Public Policy Issues, Geneva, July 14, 2009 Facts on 'Access Program' of CHAI, available at http://www.clintonfoundation.org/what-we-do/clinton-health-access-initiative/our- approach/access-programs last visited on April 09, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 pathway to get proper access to medicine. It makes some income and affordability of medicines. They may provide suggestions to enunciate more flexible or easy way to voluntary license to the domestic generic producers of achieve access to medicine. The goal of achieving access developing countries, and avoid infringement action to medicine for all is still far reaching and difficult. The against ARV producing generic companies. Further, suggestions contemplated below, if implemented properly, differential pricing usually leads to parallel importation of would go in long way in ensuring accessibility to all the medicine within or between the countries and benefits in medicines at affordable rates.
better accessibility of affordable medicine. State governments also can try to negotiate the pricing with 10.1 Use of Generic Medicine manufacturing companies taking into consideration The cost of medicine is the main cause of hindrance of domestic legislation regarding drug pricing.
availability of drugs for the patients in time of need. This 10.4 Data Exclusivity concern is the backbone of this research. Medicines are innovated for treatment of patients. If due to unbearable The reason for many developing countries opting for not cost patients become unable to purchase them and remain providing the data exclusivity is their concern for the untreated, then the avowed object of the huge course of probability of increase in the price of medicine in domestic pharmaceutical research and marketing become market. There is no specific obligation in TRIPS to provide meaningless. Incentive theory of patent protection for any separate exclusive right of data exclusivity for the pharmaceutical research and development can be scientific data submitted for market approval. Many accepted unless it completely endangers the principal developing countries relying on this position have not yet focus of patient care behind this whole process. There are provided protection under data exclusivity in their national several facts to support the view that generic competition legislation. Protection of clinical data is related directly to has brought down the cost of medicine (both original as the early entrance of generic medicine into the market. well as generic version) drastically. As such, it seems that But, it has to be kept in mind that generic medicine seems production of generic medicine is the solution for the to be only a temporary solution. So, along with generic problem of accessibility and affordability of medicine. It manufacturing units, the state needs to concentrate on has to be noted that generic medicine cannot be the only basic research of pharmaceutical products to get the answer for this problem, as it cannot be generated unless original molecules. In that case, if the clinical trial data can there is an original invention. So the generic be used for market approval of bio-similar products, the pharmaceutical manufacturing industry somehow directly cost of medicine can come down and there can be better or indirectly is dependent on the innovator companies. On availability of affordable medicine to the poor patients.
the one hand, it is projected that growth of generic industry has a role in bringing down the price of medicine and 10.5 Implementation of Compulsory hence medicine can reach millions of patients worldwide. But, on the other hand, if originator companies withdraw TRIPS Agreement and Doha Declaration have laid down from pharmaceutical R&D, the generic industry also has to clarification regarding the rights of government to use the retreat from their business. Thus, all developing and least compulsory license as a means of resolving the issue of developed countries need to think on improving their own access to and affordability of medicine. Developing research and development units for pharmaceutical countries may try to provide the reasonable provisions in their legislation to accommodate the TRIPS flexibility of 10.2 Improvement of Domestic Research and compulsory licensing, with the aim of facilitating the availability of cheaper medicine through local production or import from other countries. At the same time All the countries starting with their current level of developed countries and few developing countries with development need to make efforts to support their established pharmaceutical manufacturing capacity may pharmaceutical industry to focus on research and take initiative to reform their legal provision to conform to, development so that through improved scope of the facility to export the required medicine at affordable innovation, availability and accessibility can be improved price under this mechanism. An inherent flaws in the for the larger benefit of society, particularly the less system of compulsory licensing is that TRIPS Agreement developed and developing countries. For boosting and subsequently the Doha Declaration affirmed that the investment into R&D, Public-private-partnership (PPP) Member states are allowed to utilize the option of model may be considered.
compulsory licensing to protect the public health concern of the general mass only when the crisis arises. That 10.3 Pricing Policy means, there is no provision of using this system for The companies should follow differential drug pricing prevention and precautionary action, prior to the disease policy for different countries according to their per capita taking the shape of an epidemic or endemic. This inherent "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 drawback in the system of compulsory licensing has made 10.7 WIPO Development Agenda it less useful. Some amendments need to be made in this system to make it more useful to get better access to WIPO adopted the "Development Agenda" (hereinafter, the Agenda) in 2007, with the aim of introduction of development as the core issue. A set of 45 10.6 Promotion of Traditional Medicine recommendations is adopted with the suggestion of Committee on Development and Intellectual Property As a substitute to the available allopathic treatment, the (CDIP). A wide range of actions are enlisted in the countries rich in traditional medicinal resources and recommendation, such actions range from the knowledge (like India, China, Thailand, Latin American or development oriented projects to application of principles African countries) can think of proper utilization of those and objectives to proper guidance for practical alternative medicines as well. Countries rich in traditional implementation. In recent years, the attempt by WIPO is to medicine can make sincere attempt to promote them, to ensure the paradigm shift in intellectual property aspects achieve an alternative treatment modality for patients. from the profit making practice to development driven Before the popularization of allopathic medicine, Indians practice. If WIPO can pursue each and every country to were relying heavily on traditional medicine. It is observed implement the recommendations mentioned in this that, traditional community people still rely more on Agenda then most of the barriers in access to medicine will traditional medicine because of their easy accessibility, be automatically removed. But it is essential that the affordability and age old practice of dependency on recommendations must be implemented worldwide traditional healers. Reliance on particular mode of irrespective of the socio-economic condition. It must treatment is associated with positive psychological impact materialise not only in developing and least developed which helps in easy recovery from any disease, and access countries but also in developed countries.
to medicine for all can be achieved much easily.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Social Stigma Surrounding Surrogacy and Prostitution in Indian Society: A Critique Ms. Sonali Kusum* The debate on prostitution and surrogacy needs to be revisited in the light of the proposal by the National Women's Commission seeking to legalize prostitution in India. Another twin development is the recent revision of the draft law on surrogacy namely the Assisted Reproductive Technologies (ART) Bill in the year 2013 which is reinforcing the legalization of commercial surrogacy in India. It may be pertinent to note that surrogacy and prostitution share inherent similarity as both involve payment for the use of female's body and for the same reason both are held as unethical and stigmatized in the Indian society. These developments signify that both commercial surrogacy and prostitution are sought to be legalized in India. In the light of this, an important issue to be considered is the identification of similarities between commercial surrogacy and prostitution and assessing the nature of changes that may be required in the socio legal attitude for greater acceptability of commercial surrogate motherhood in India. With the legalization of both surrogacy and prostitution, the social stigma emanating from the commercial use of the female body involving her private organs (for third party) need to undergo a change to minimize social resistance. In this context, this study focuses on the issues surrounding legality and illegality of surrogacy and prostitution in India.
Key Words: Social stigma, Surrogacy, Prostitution, Surrogate mother, Human trafficking.
brothel and such other acts as illegal and punishable offence. Where as in case of surrogacy, there is no binding Prostitution is defined as "the sexual exploitation or abuse statutory law on surrogacy in India. At present surrogacy of persons for commercial purposes or for consideration in in commercial form is permitted in India by the Supreme money or in any other kind," or in simple words court's pronouncement in the case of Baby Manji vs. Union prostitution is "the exchange of sexual services for of India and regulated by the ICMR Medical guidelines money" . Similarly, surrogacy or surrogate motherhood is and the Draft ART Bill awaiting enforcement. defined as "an arrangement in which a woman agrees to a gestate or undergo pregnancy, achieved through assisted Commercial surrogacy and prostitution involve temporal reproductive technology and to hand over the child to the use of body of or hiring of private body organ as womb by person or persons for whom she is acting as a surrogate, third person in return for monetary payment. One of the usually in return for monetary payment " or in simple words common attribute in commercial surrogacy and "surrogacy is use of gestational services of woman in prostitution is the element of commerce, trade, financial exchange for money" . Prostitution as well as surrogacy transaction in relation to human body, bodily organs, both are permitted and regulated in India under respective biological process of reproduction, procreation . Due to laws and regulations. The Suppression of Immoral Traffic this reason "surrogacy is held as a form of prostitution or in Women and Girls Act regulates prostitution by declaring slavery whereby a woman exchanges the use of her body certain acts as living on the earnings of the prostitution, for money." This has resulted in a thriving industry based keeping a brothel or allowing premises to be used as a on the renting, hiring of gestational, sexual capacity of * Ph.D Scholar, National Law School of India University, Bangalore.
1 Sec 2 (f) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 Wikipedia, the free encyclopedia, Prostitution in India, Wikipedia, available at (last visited February 25, 2015) Farlex, the Free Dictionary, Surrogate Motherhood, thefreedictionary, available at http://legal-dictionary.thefreedictionary.com/ Surrogate+Motherhood(Last visited Feb. 25, 2015).
Dictionary merriam-webster, surrogate mother, merriam-webster, available athttp://www.merriam-webster.com/dictionary/ surrogate% 20mother (Last visited Feb. 25, 2015) Sugato Mukherjee, Legal and Ethical Issues of Commercial Surrogacy in India , Academia Edu, available at "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 women to be let on hire leading to her bodily exploitation. commercial surrogacy since the year 2002 under Surrogacy in particular generates greater scope for reproductive tourism policy aimed at earning foreign exploitation for two reasons; firstly due to rampant practice exchange. Subsequently, the Supreme Court of India in the of surrogacy as a part of reproductive tourism policy epoch making case of Baby Manji vs. Union of India10 seeking to offer the gestational services of Indian women formally legalized commercial surrogacy in the year 2008. to be availed for monetary returns by nationals or In the same case, the apex court defined commercial foreigners, and secondly due to absence of any binding surrogacy as "a form of surrogacy in which a gestational law imposing check and control on the same. There is carrier is paid to carry a child to maturity in her womb" . likelihood of misuse of the technology for unfair Having defined commercial surrogacy, the apex court commercial gains and illegalities. Under such acknowledged the name calling and the social stigma circumstances women are vulnerable to trafficking or surrounding commercial surrogacy. Further, the court buying or selling, and abduction of women for the purpose reiterated the popular euphemism associated with of being surrogate mothers or prostitutes for vested commercial surrogacy, namely, "womb renting", "baby interests. This raises fears of marketing of human body, farm" and "outsourced pregnancies" as prevalent in the organs and many other socio legal evils in our society. society. This judicial pronouncement led to the formulation Thus, there is a necessity to bring stringent legal provisions of the Assisted Reproductive Technologies (ART) (Regulation) to protect women from such social evils.
Bill 2008 . This ART Bill 2008 was subject to necessary At this juncture, it may be reiterated that in the wake of change and revised as ART Bill 2010 , this Bill provides for recent proposal by National Commission for Women commercial surrogacy by permitting monetary compensation to women in return for their gestational (NCW) seeking to legalize prostitution in India by amendment to Immoral Traffic (Prevention) Act, 1956 services. At present ART Bill 2010 is being modified and relooked as ART Bill 2013 which is awaiting enactment. (ITPA) in the after math of public interest litigation before Therefore, surrogacy in India is without any binding Supreme Court of India involving right of sex workers to live with dignity in accordance with Article 21 of the constitution of India, coupled with legalization of 2. Surrogate Mother & Derogatory Social Status surrogacy under the revised ART Bill 2013. Thus, both surrogacy and prostitution are subject to changes which mothers are given very derogatory status by may have significant implications on the legal recognition equating their position with that of a prostitute in the Indian and social acceptability of the same including better status society. The social attitude towards surrogate motherhood of these women in the society. It may be rightfully said that is expressed by name calling as "baby breeders", "baby with the proposed changes in the legalization of both these factory", "incubator" and "carrier or vessel" among illegalities, misuses associated with these may cease. others. The surrogate mother has to face a social stigma of offering bodily services for commercial returns similar to India is one of the first country in the world to legalize a prostitute. There is a misconception in the society that the Denise E. Lascarides, A Plea for the Enforceability of Gestational Surrogacy Contracts Hofstra Law Review Volume 25 Issue 4 Article 4 1997 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?a rticle=1980&context=hlr(Last visited Feb. 25, 2015).
Bureau of the Dutch National Rapporteur on Trafficking in Human Beings , Human trafficking, For the purpose of the removal of organs and forced commercial surrogacy , The Hague: BNRM, National Rapporteur on Trafficking in Human Beings (2012) available at www.bnrm.nl(Last visited Feb. 25, 2015) IANS , Proposal to legalize prostitution to be placed before SC panel: NCW Oct 29, 2014 , available at http://timesofindia. The Immoral Traffic (Prevention) Act, 1956 [NO.104 of 1956], [30th. December, 1956].
(2008) 13 S.C.C. 518).
Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20 (Regulation)%20Bill% 20&%20Rules%20-%202008-1.PDF (Last visited Feb. 25, 2015) [hereinafter Draft Bill 2008]. The Assisted Reproductive Technologies (Regulation) Bill - 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION% 20Draft%20Bill1.pdf (Last visited Feb.25, 2015) [hereinafter ART Bill 2010]. Ibid, ART Bill 2010 § 34 (1) (2).
Christopher White, Surrogacy: The Twenty-First Century's New Baby-Making thefederalist. October 13, 2014 available at "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 role of surrogate mother may involve immoral acts like that that "surrogacy is more like a "calling," "a blessing from of a prostitute including sexual intercourse with the male God" that enables a woman to perform a charitable or partner of the couple or the intending father in order to noble act of providing child to infertile and help them build conceive and gestate the surrogate child, such their family. Surrogate mothers fight back the stigma of misconceived notion exists due to lack of information on surrogacy by construing a sense of self-worth by the medical process of artificial insemination resulting in recounting the instance from Mahabharata where Lord Sri "stigmatization and social exclusion of surrogate Krishna and other deities were born in similar ways. Thus, mothers. The surrogate mothers are alleged to be surrogates seek to perform a glorious act as enumerated in "maligning motherhood" by making the reproductive religious texts. The surrogates state that "it's in our religion. labour or gestational labour available on hire for money in It's something like what Yashoda Ma did for God market like any other market or commercial service at the Krishna" . Thus, it is evident that the surrogate mothers cost of suppressing and alienating feelings of motherhood resent and fight back such comparisons. In the light of such accruing during the course of gestation or pregnancy and comparisons and contradictions between surrogacy and by undertaking compulsory handing over the custody of prostitution, and the consequent social stigma there is a child onto others immediately after birth for monetary sum felt need to identify the similarities and dissimilarities despite all or any intrinsic emotional attachment thereby between surrogacy and prostitution.
defeating the very notion of motherhood. The surrogate mothers are also called "disposable mothers" for the 3. Similarities between Surrogacy and reason that surrogate motherhood requires women to undergo pregnancy for the sole purpose of surrender or Leading feminist schools of thought and scholars have disposing of the custody of child to others immediately at sought to establish similarities between surrogacy and birth and thereafter severing all ties in return for a fixed sum prostitution. It is significant to take into consideration these of money. Surrogate mothers are also viewed as" dirty feminist perspectives who call surrogacy as reproductive workers" due to inherent servile behavior implicit in the prostitution as "it is the womb, not the vagina, that is being nature of the act" of gestational labour undertaken for bought; this is not sex, it is reproduction that is being others where in the conduct and functioning of surrogate bought". Gena Corea, a leading radical American mother is controlled as per the terms and conditions of feminist opines that "Surrogacy, like prostitution, involves surrogacy arrangement at the instance of the couple to suit payment of a fee for the use of the body but the nature of service provided is very different "while prostitutes sell the On the other side, surrogate mothers defend their position use of the vagina, rectum or mouths, surrogates sell the by denying any comparison with prostitutes or paid sex use of other body parts such as wombs, ovaries, and workers, and these women or surrogate mothers contend eggs." Thus, it is said that "prostitution is sex without reproduction and surrogacy is reproduction without sex" . Sayantani Das Gupta, Shamita Das Dasgupta, Globalization and Transnational Surrogacy in India: Outsourcing Life (Google eBook), Lexington Books, Feb-2014. Kajsa Ekis Ekman, Being and Being Bought: Prostitution, Surrogacy and the Split Self spinifexpress, available at http://www.spinifexpress.com.au/bookstore/book/id=246/ (Last visited Feb. 25, 2015).
Chaz Kangas, Paul Anka's "Having My Baby": Disgustingly Misogynist or Unfairly Maligned?, VILLAGE VOICE, available at http://blogs.villagevoice.com/music/2013/05/ paul_anka_having_my_baby.php (Last visited Feb. 25, 2015).
Kellye Y. Testy ,Foreword: Compensated Surrogacy in the Age of Windsor, Washington Law Review [Vol. 89:1169 ,available at Amrita Pande, "At Least I Am Not Sleeping with Anyone": Resisting the Stigma of Commercial Surrogacy in India , Feminist Studies 36, no. (Summer 2010). 2010 by Feminist Studies, available at http://claradoc.gpa.free.fr/doc/420.pdf(Last visited Feb. 25, 2015).
Amrita Pande, Not an 'Angel', not a 'Whore': Surrogates as 'Dirty' Workers in India, Indian Journal of Gender Studies 2009 16: 141, available at https://intersektionalitet.files.wordpress.com/2011/03/notanangel2.pdf (Last visited Feb. 25, 2015).
Supra Note at 23. A m r i t a P a n d e, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, S I G N S Summer 2010 ? 971. Dion Farquhar, The Other Machine: Discourse and Reproductive Technologies Psychology Press, 1996.
Katherine B. Lieber , Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered? Indiana University School of Law, Volume 68 Issue 1 available at, http://www.repository.law.indiana.edu/cgi/viewcontent.cgi ?article=1466&context=ilj(Last visited Feb. 25, 2015).
Vandana Apte . Commercial surrogacy presents priceless opportunities Under the Microscope, dailytargum. 09/17/14, available at "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 As per the radical feminists, surrogacy and prostitution constitution.33 In keeping with this, in the case of Jan Balaz have similarities some of which are identified and vs. Anand Municipality and Ors, the German discussed here briefly. Government authorities denied any legal recognition to such surrogacy commissioned by German nationals in 3.1 Commoditization or Objectification of Anand, Gujarat, India, leading to the birth of German Female Body & Commercial Gain form twins, who were biologically related to the couple. Similarly, France under its Civil Code prohibits surrogacy, being contrary to the principle of the inviolability and Surrogacy and prostitution both commodify women's body integrity of the human body, which states that only things of by offering women's gestational, sexual labour in market a commercial nature can be the object of contract. for remunerative sum. Radical feminist Margaret Radin Therefore on this rationale, prostitution and commercial argues that there is commoditization due to commercial surrogacy is viewed as breach of the established human hiring of women's private body. That results in unfair rights guarantee.
exploitation of women.
3.3 Absence of Choice & Compulsions as 3.2 Bodily Exploitation & Denial of Human Economic Necessity Rights Guarantees as Bodily Dignity and Integrity Both surrogacy and prostitution are marked by absence of free choice. Surrogacy or prostitution is not an option in Both surrogacy and prostitution, by making women's body which a woman can enter into by her own free will. This into a commodity of commercial gain and monetary analogy is supported by the testimony of a surrogate, a return, devoid women's body of human dignity and poor Indian surrogate mother named "S" who states her integrity, and go against the basic human right to dignity. reason to be surrogate is a "majboori" or compulsion or As per the established theory of the Idea of Human Dignity necessity for survival.
laid down by the German philosopher Immanuel Kant , "Human beings have "an intrinsic worth, i.e., dignity," 3.4 Stay Arrangements Away from Homes as which makes them valuable' "above all price", therefore Brothel or Surrogate Hostel human beings are end in themselves and not merely means to an end" . So, it is apparent that both surrogacy Both the surrogate and prostitutes are made to stay away and prostitution are inconsistent to the basic tenet of from their family, in secluded accommodation. Surrogates human dignity, right to person as conceptualized under the are kept together as a class of breeders, just as prostitutes Kantian Theory. Based on this foundational principle of are kept together in brothels. While the surrogates stay in a human dignity and integrity, many European nations, for make shift "surrogate hostel" the prostitutes stay in a instance, namely, Germany, France, Italy and other "brothel", and in both the cases women are made to share nations, strictly prohibit surrogacy and make it an offence usually a common big room or dormitory with as many as violating the human rights. It may be pertinent to mention ten to fifteen women, with common washrooms. Their life that as per the German constitution human dignity is style and day to day movements are brought under inviolable. Therefore, to make a human being the subject necessary supervision or monitored by third party agency of a contract and use of a third party's body for the or the so called care takers or middle men.
purposes of reproduction is impermissible under German Jean M. Sera, Surrogacy And Prostitution: A Comparative Analysis, Journal of Gender & the Law, Spring 1997] [Vol. 5:315, At pg no 327 ].
Accord Anita L. Allen, Surrogacy, Slavery, and the Ownership of Lifk 13 HARVS. J. L. & PUB. POL 'Y 139, 141-46 (1990). See Margaret Jane Radin, Market Inalienabiliy,100 HARVS. L. REVS. 1849, 1859-60 (1987).
Immanuel Kant (1724–1804) Lecture on Ethics (1779), Kant's Moral Philosophy, Stanford encyclopedia of ethics , Feb 23, 2004, available at http://plato.stanford.edu/entries/kant-moral/(Last visited Feb. 25, 2015).
Michael Edwards, Colin Rogerson, Dawson Cornwell, family law week , Surrogacy: National Approaches and International Regulation, proceedings at the Workshop on National Approaches to Surrogacy, University of Aberdeen between 30 August 2011 and 1 September 2011 Articles > 2011 archive available at http://www.familylawweek.co.uk/site.aspx?i=ed87773(Last visited Feb. 25, 2015).
AIR 2010 Guj 21.
French civil code , Code Civil [C. CIVS.] Article 1128 , See also, John Weltman & Brian Manning, Information Regarding the April 2011 Cour de Cassation Decision, CIRCLE SURROGACY (Apr. 14, 2011), available at http://www.circlesurrogacy.com/en/component/k2/item/174-memo-mennesson-decision. (Last visited Feb. 25, 2015).
Amrita Pande, Wombs in Labor, Transnational Commercial Surrogacy in India, Columbia University Press , SEPTEMBER 2014.
Gena Corea , The Mother Machine: Reproductive Technologies From Artificial Insemination to Artificial Wombs. Journal of Nurse-Midwifery, Volume 32, Issue 1, page 55,January-February 1987 .
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 3.5 Non-disclosure & Secrecy Thus, unlike prostitution, surrogacy is not per se necessarily illegal. Majority of the surrogate mothers do not disclose, rather hide, the fact of their being surrogate mothers, from their 4.2 Purpose & Intent neighbors, in laws and even their parents. Some of the Surrogacy can be distinguished from prostitution based on surrogate mothers lie about their long absence from their its respective purposes. The main purpose behind the homes by making false excuses such as they are visiting surrogacy is birth of child, family formation for an infertile their maternal home or they are on pilgrimage. Thus couple. Thus, surrogacy may be beneficial to individuals there is similar confidentiality associated with the sex as well as the society. Whereas the main purpose of workers as well as surrogates who never disclose about prostitution is mere temporal physical pleasure or sexual their profession.
gratification. Thus, in case of the surrogacy the ends 4. Differences Between Surrogacy and justify the means owing to its very noble and laudable objective, and the same is absent in the case of prostitution.
After establishing the common grounds between surrogacy and prostitution, it is equally significant to 4.3 Potential& Incidental Harms identify the differences for better conceptualization of the There are many potential harms associated with or issues evolved. Some of these key differences are incidental to prostitution owing to the involvement of discussed below.
sexual intercourse with a man which is absent in the case of 4.1Criminal & Punishable Nature surrogacy. In the case of prostitution, there is scope for misuse of minor girls for trafficking or selling or kidnapping Prostitution being the sale of sexual services for a fee is for induction into prostitution even at the cost of risking held to be per se unethical, immoral and soliciting, and is their lives. These risks are less prominent in surrogacy. legally prohibited and held as a punishable offence under the Indian penal law as well as under the 5. Legal Issues & Nexus Among Surrogacy, Suppression of Immoral Traffic in Women and Girls Act, Prostitution & Human Trafficking 1956. On the other hand, surrogacy as an act of Considering the shared similarity of bodily exploitation substitution of gestation and consequent child bearing implicit in surrogacy, prostitution and human trafficking, all without any sexual intercourse is neither held as an illegal the three fall under the broad ambit of offence against act or criminal act nor a punishable offense. It may be human dignity & integrity, and are violative of human rights noted that surrogacy could be of two forms, namely, under national laws as well as International laws and altruistic surrogacy or commercial surrogacy . The altruistic conventions. Some of these issues and legal instruments surrogacy is held as charitable act of helping the infertile are elucidated below. couple and held legal in almost all legal jurisdictions. There are many instance of altruistic surrogacy in the old 5.1 Human Rights Issues testament of Bible as well as in Hindu religious epics as Mahabharata which has been received with reverence Surrogacy, prostitution and trafficking have common and social acceptance. Rather it is usually in the case of shared elements namely bodily exploitation for latter, the commercial surrogacy which is held illegal in commercial gain. "While the prostitution makes certain legal jurisdictions as already mentioned by commercial use of vagina, surrogacy makes commercial enumerating instances of some of the European nations. use of uterus. Both expose the female body to market transaction for financial gain. The commercial gains so Nita Bhalla and Mansi Thapliyal, Foreigners Are Flocking To India To Rent Wombs And Grow Surrogate Babies, businessinsider, Reuters, Sep. 30, 2013, available at http://www.businessinsider.com/india-surrogate-mother-industry-2013-9?IR=T(Last visited Feb. 25, 2015).
Evelina Giobbe, Confronting the Liberal Lies About Prostitution, in The Sexual Liberals and the Attack on Feminism 67-69 (Dorchen Leidholdt &Janice G. Raymond eds., 1990).
Indian Penal Code, 1860 , Act No. 45 of Year 1860, (6th October 1860) , § 373 Supra note at 2.
Bible Verses about Surrogate Motherhood, Genesis 16:1-16 , Genesis 30:1-24, openbible available at http://www.openbible.info/topics/surrogate_motherhood(Last visited Feb. 25, 2015).
M Naushad Ansari, Surrogacy in the mirror of Hinduism and Islam, 11 October 2011, available at http://twocircles.net/2011oct11/surrogacy_mirror_hinduism_and_islam.html (Last visited Feb. 25, 2015).
Denise E. Lascarides , A Plea for the Enforceability of Gestational Surrogacy Contracts Hofstra Law Review Volume 25 Issue 4 Article 4 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article= 1980&context=hlr(Last visited Feb. 25, 2015).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 derived are primarily unfair and unethical. For the same primarily "an offense to the dignity and integrity of the reason, surrogacy and prostitution are inherently human being thereby violation of human rights" . intrinsically violative of human right to dignity and Accordingly, the UN Protocol to Prevent, Suppress and integrity, concurrent with the offence of human Punish Trafficking in Persons Especially Women and trafficking. In commercial surrogacy as well as prostitution Children, supplements the United Nations Convention there are common socio economic determinants or against Transnational Organized Crime as well as the reasons such as poverty, debt, illiteracy which act as a Council of Europe Convention on Action against compelling force for women to become surrogate mothers Trafficking in Human Beings which prohibit trafficking as or prostitutes as the present societal order fails to provide it is primarily breach of human dignity and right to person. them gainful employment. The recruiting process in Similar provisions are found in the international human prostitution, surrogacy is notably similar to the recruitment right convention or treaty namely UDHR, ICCPR, process used by human traffickers. In both there is UNCEDAW which establish the right to human dignity, involvement of third parties as middle-men, (brokers, integrity and respect for person as the most fundamental agency, local surrogacy agents or corporate surrogacy human right safeguard. Thus, the right to human dignity consultants to recruit surrogate mothers). It is also found besides being a human right guarantee is also an that both prostitution and commercial surrogacy are established fundamental and legal right which is a facet of essentially chief motives for human trafficking. While right to life, liberty under article 21 of Indian constitution. surrogacy represents reproductive trafficking, prostitution Right to human dignity is interpreted as the inalienable fact represents sexual trafficking. In this regard, it is pertinent to of right to life in the epoch making case of Bandhua Mukti mention a landmark case on the point which distinguishes Morcha vs.Union of India and a host of other cases. In between the two forms of trafficking namely sexual and surrogacy and prostitution, these legal human right non-sexual trafficking. These forms of human trafficking safeguards are denied. This violation of dignity and are brought forth in the case of Bachpan Bachao & Ors. vs integrity of person is subject to criticism not only from Union Of India & Others wherein the Delhi High Court conventional or treaty law but also from philosophical and acknowledges that "there is no concrete definition of ethical perspectives as well.
human trafficking and the court identified two major categories of trafficking namely sexual and non-sexual 5.2 National Legal Instrument forms of trafficking. The former category includes sex Human trafficking is prohibited in all or any form under based trafficking including prostitution, pedophilia, national as well as international laws. Laws related to pornography and the latter category non-sex based trafficking are mostly confined to and associated with trafficking includes surrogacy and servitude like domestic trafficking for the purpose of prostitution, sexual labour, organ transplant etc. Thus it may be rightfully exploitation but laws related to trafficking for the purpose stated that Commercial surrogacy of surrogacy are not similarly established as yet. Firstly the trafficking are intertwined, and share indispensible nexus.
IPC provides for penal offences against trafficking of In addition to these, it is well established under various females, girls for prostitution. Similarly, the statutory Act national laws, international conventions that trafficking is namely Immoral Traffic (Prevention) Act, 1956 (ITPA) European Centre for Law and Justice, Surrogate Motherhood: A Violation of Human Rights the Council of Europe, Strasbourg, 26 April 2012, available at http://www.culturavietii.ro/wp-content/uploads/2015/01/Surrogacy-Motherhood-ECLJ-Report.pdf(Last visited Feb. 25, 2015).
WP(Crl.) No.82 of 2009. Anne T. Gallagher, The International Law of Human Trafficking, Cambridge University Press, 30-Sep-2010.
UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the Un i t e d N a t i on s Con ve n t i on a g a i n st Tra n sn a t i on a l Or g a n i ze d Cr i me , 1 5 N o vember 2 0 0 0 , available at: http://www.refworld.org/docid/4720706c0.html (Last visited Feb. 25, 2015).
European Union , Council of Europe Convention on Action against Trafficking in Human Beings , Council of Europe Warsaw, 16.VS.2005, available at http://conventions.coe.int/Treaty/en/Treaties/Html/197.htm (Last visited Feb. 25, 2015).
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html(Last visited Feb. 25, 2015).
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html (Last visited Feb. 25, 2015).
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at: http://www.refworld.org/docid/ 3ae6b3970.html (Last visited Feb. 25, 2015).
Bandhua Mukti Morcha vs.Union of India, 1984 (3) SCC 161.
The Immoral Traffic (Prevention) Act, 1956 [NO.104 of 1956], [30th. December, 1956.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 prohibits trafficking for immoral purposes including the purpose of "trafficking" may include surrogate prostitution and sex trade. Commercial surrogacy, being pregnancy which may be read under the category of an advanced reproductive technology, has been given forced pregnancy. These are some of the progressive legal legal permit in India, only a few years back, and the developments witch focus on the nexus between legislation on the same is still pending. Therefore there is a commercial surrogacy and human trafficking.
legal void to address the issues related to surrogacy and 6. Concluding Remarks related human trafficking. It is well understood that the drafter of IPC at the time of formulation had not envisioned The analogy between commercial surrogacy and this medical technique of surrogacy or any such similar prostitution cannot be refuted due to the common shared technology. Hence, the law makers did not have this ground of bodily exploitation of women with the common technology in their consideration, let alone its misuse motive of commercial gain. Both receive criticism from leading to trafficking in women for making them ethical, legal and human right advocacy groups for being gestational carriers. Therefore, this technology has not largely unethical and stigmatized, among others. The issue been taken into account while conceptualizing law on of social stigma continues to degrade the status of trafficking. However, in the recent past there has been surrogate mothers and prostitutes, but with the possible initiation on these lines under the international legal legalization of prostitution as mooted by the NCW, this instruments. Some of these are discussed below.
attitude of social stigma may undergo a change. As more and more surrogate mothers are voicing about the nature 5.3 International Legal Instruments of such pregnancy as well as the process of legalization, There are certain contemporary international legal ART Bill has brought more emphasis on the medical instruments that identify "forced prostitution" and "forced technique of artificial insemination and nature of such pregnancy" as emerging forms of human trafficking under their relevant provisions. One such International Criminal It is established, however, that commercial surrogacy and Court Statute includes enslavement, "forced prostitution" prostitution are different in effect and practice. Surrogacy and "forced pregnancy" amongst crimes against leads to family formation and fulfillment of right to life, humanity. The United Nations Office on Drugs and right to privacy which brings welfare for the individual and Crime ("UNODC") "Model Law against Trafficking in family thereby greater good for the society. Further, Persons", seeking the implementation of the UN Protocol surrogacy is not per se criminal and punishable act unlike to Prevent, Suppress and Punish Trafficking in Persons, prostitution. However, the legal issue common in both is Especially Women and Children, specifically mentions the inconsistency with the established human rights "forced pregnancy" and the "use of women as surrogate standards and the possibility of lurking crimes of human mothers" as forms of human trafficking. The draft Council trafficking in the garb of same. Thus, there is felt need to of Europe convention against trafficking urges the state address the same through legalization and necessary parties to formulate protocol against trafficking in body amendment whereby the differentiation is well established parts, human tissues and cells either through gestation as well as the positive aspect of surrogacy is further carrier or as gamete donors. This convention envisions emphasized. The present proposals of enactment of laws commercial surrogate motherhood as a form of human seek to strike a balance with the personal needs of trafficking. Thus, it may be inferred that "exploitation" for individuals with the welfare of society.
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), Article 7, 17 July 1998, ISBN No. 92-9227- 227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html Article 7.
Parliamentary Assembly of The Council of Europe 1 Part of 2013 Parliamentary Assembly Session, Recommendation 2009 (2013)1 Towards A Council Of Europe Convention To Combat Trafficking In Organs, Tissues And Cells Of Human Origin, available at: http:// www.coe.int/t/dg3/healthbioethic/Texts_and_documents/INF_2014_5_vol_II_textes_% 20CoE_%20bio%C3% A9thique_E%20(2).pdf Article 7.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Role of Panchayati Raj Institutions in the Decentralization of Governance: A Critique Mr. Divyesh Choudhary* Ms. Sayantika Ganguly** Since ancient times, Panchayati Raj Institutions have been embedded in the ancient sociological structure of the country, and have been widely accepted in the Indian society since times immemorial. These institutions have always functioned according to their own beliefs and traditions thus leading to ambiguity and non-uniformity in the system. In the due course of the rise and fall of empires, panchayats have suffered the domination of many rulers, who moulded these institutions according to their exigencies.
The main objective of any democracy is to create a welfare state based on the principles of social justice, freedom and equality. The democracy needs to step down from the parliament to the lowest rungs of the society. Since independence, the Indian government has sought to infuse these ancient traditional governing bodies with modern trends of governance and administration, simultaneously protecting them by conferring them a constitutional status.
Despite all developments sought to be introduced by the government to provide benefits of efficient administration of the Panchayats to its citizens, the system faces many challenges. The threat of extra constitutional authorities has also gained momentum which tends to subvert the very foundation of these institutions.
After a thorough assessment of the functioning of the Panchayats in the country, this paper ventures with a detailed analysis of the evolution of the Panchayati Raj Institutions in the country. The following areas of importance have been dealt with: Background, Constitutional Status, Challenges and Suggestions for Reform.
Key Words: Panchayati raj institutions, Democracy, Constitutional status, Challenges, Administration, Extra constitutional authorities.
Realising the importance and necessity of rural self-government in a developing nation, Panchayati Raj Since independence, India adopted the policy of creating Institutions were conferred a new dimension by the 73 a welfare state. According to the Ministry of Rural Amendment Act, 1992.
Development (Government of India), "Rural Development implies both the economic betterment of people as well as Panchayat is an Indian political institution and is a part of greater social transformation. In order to provide the rural our ancient civilization which has been in existence since people with better prospects for economic development, times immemorial, in one form or the other. Panchayats increased participation of people in the rural development have developed gradually with the growth of the country. programmes, decentralization of planning, better Panchayats can be said to be, popularly elected village enforcement of land reforms and greater access to credit councils which deal with the local affairs at the village level including economy, health, administration and distribution of resources and also functions as a local judicial body in a A nation which disregards the plight of half of its traditional or customary fashion. In literal sense, the word population can never be triumphant on its road to panchayat is a combination of two words i.e. panch (five) development, to quote Mahatma Gandhi "economics is and ayat (assembly). Although, panchayats lack uniformity untrue which ignores and disregards moral values". In the in their functions due to lack of a specified constitutional 22 July, 1946 issue of Harijan, Gandhi stated that mandate yet, it is conceived as an instrument for bringing 'Independence must begin at the bottom'.
about the comprehensive development of the country. It * Student, B.A. LL.B.(Hons.), Second Year, Faculty of Law, Jamia Millia Islamia.
** Student, B.A. LL.B.(Hons.), Second Year, Faculty of Law, Jamia Millia Islamia.
1 A.K. Mishra, Naved Akhtar, Sakshi Tarika "Role of the Panchayati Raj Institutions in Rural Development( An analytical study of Uttar Pradesh)", SMS Varanasi, Vol VII, No. 1; 44, June 2011.
Anil Dutta Mishra "Introduction" in Anil Dutta Mishra, Mahadev Shivappa Dadage, "Panchayati Raj (Gandhian Perspective)", p 1 (A Mittal Publication, 1 Ed., 2002).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 also ensures the exercise of the people's authority for the the replication of same style of governance at the Block good of the people, which is the ultimate goal of any level and is headed by a Chairman. Block Development democracy. Providing proper representation to the lakhs of Officer (BDO) is the administrative head who keeps all the people living in the villages will take India much further records pertaining to the working of Panchayat Samiti. Zila towards its goal.
Parishad or the district level panchayat is also headed by a Chairman, and an IAS or a State Civil Service Officer is its Panchayats are an integral part of the Indian social system, administrative head. Its governing body is composed of where 60% of the population lives in villages. Mahatma MPs and MLAs of the area besides other elected members.
Gandhi held that by serving the villages, swaraj could be established. In the July 26, 1942 issue of Harijan, he gave Panchayati Raj Institutions are an integral part of the an outline of his idea about Village Swaraj. He wrote: "My system, aiming at social and economic development of the idea of Village Swaraj is that it is a complete republic, rural people. Autonomy of the village as the basic unit of independent of its neighbours for its own vital wants, and the national economy has to be provided in order that it yet interdependent for many others in which dependence is may plan production, fully develop the resources and a necessity. The government of the village will be produce its own leaders who may work for the people and conducted by the Panchayat of five persons, annually be accountable to them. As Panchayats have been a part elected by the adult villagers, male and female, possessing of the Indian society since ancient times and have minimum prescribed qualifications. These will have all the acclaimed social acceptance from the people, it can be a authority and jurisdiction required. Since there will be no tool for development of the weakest sections of our society. system of punishments in the accepted sense, this It also leads to direct participation and self-accountability Panchayat will be the legislature, judiciary and executive of the people in making policy and execution of matters combined to operate for its year of office. Here there is directly related to their well-being, thereby creating real perfect democracy based upon individual freedom. The democracy at the basic level. This system envisions, individual is the architect of his own government." endorsing the responsibility for its success on the people themselves and garners necessary enthusiasm of the The cardinal objective of the Indian government, since village community for creative works.
independence, has always been the welfare and betterment of its citizens. To fulfil this objective, the 2. Historical Background government has undertaken innumerable steps towards provision of rudimentary facilities like education, The tradition of local governance in India dates back to the healthcare, public works etc. In recent times, it was realised Vedic age which is evident from their references in the Rig that increased momentum could be given to the process of Veda, the origin of which can be traced back to 1200 BC. development by including the people in providing Over a period of time many empires and dynasties rose to governance at the grass root level. Keeping this in mind, power and fell. But the villages survived and panchayats rural development through evolution of Panchayati Raj have always emerged as effective agencies of social Institutions has been one of the central objectives of the control as a gathering of five wise respected elders elected government since independence.
by the community, whose verdict is traditionally accepted. The head of a Panchayat is called 'Mukhiya' or 'Sarpanch'. Mahatma Gandhi's vision of villages being a self- This concept of local governance was embedded in our dependent unit can be seen coming true. The evolution of system since ages in one form or the other and has helped the Panchayats has been a boon for the millions of village communities to develop, decide and preserve their impoverished villagers, as they have a platform to bring way of living. Panchayats were also responsible for the their issues to the forefront and get them addressed settlement of disputes on religious and social matters adequately. However, a lot requires to be done. This is within the village in accordance with age old customs and where, the law comes into play. By enacting more efficient traditions. These assemblies also served as a link between laws for better functioning of the Panchayats the process of the villagers and the higher authorities i.e. the king and his development of villages can be given velocity.
chieftains as has been gathered from historical sources of Presently, India has adopted a three tier Panchayat system - the Mauryan and Gupta periods. Although some judicial Gram Panchayat at the village level, Panchayat Samiti at powers of these bodies had been curtailed during the the Block level and Zila Parishad at the district level. Gram Mughal era yet, their position seems to have remained panchayats operate at the village level with a Sarpanch as unchanged as the state's power, always remained behind its head who is in-charge of all matters. Panchayat Samiti is these village councils? M Maharajan "Panchayati Raj" in Anil Dutta Mishra, Mahadev Shivappa Dadage "Panchayati Raj (Gandhian Perspective), p. 177 (A Mittal Publication, 1 Ed., 2002).
Panchayati Raj And The Weaker Sections, U Gurumurthy, 1987, Ashish Publishing House New Delhi.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 The Panchayats had however witnessed drastic abatement constraints and its democratization was cricumsbried as its in their authority and autonomy on the eve of the colonial franchise suffered nepotism between the local tycoons and rule. Every village was governed by their own traditions their cronies.
and customary laws which only created impediments in the Superficially the reforms brought in by the British were British zeal to implement their reforms in India. The British commendable but on deeper analysis it is to be found that Government had to perform stringent experiments in order the very spirit of decentralizing the administration was to impose their land revenue schemes and develop a negated by the dependence of village officials upon the sound administrative system. Also, the introduction of government superiors. India achieved its independence in British system of justice through legislations and regular 1947 after many nationalist struggles and movements and courts simply obliterated these indigenous bodies as they the crusade for revival of Panchayats gained momentum did not recognise the panchayat decisions. Therefore, the which is reflected under various reports, reforms and British, in fact, wanted to create a centralized control in amendments since then.
order to consolidate and implement their functions and transfigure the villages into state controlled agencies.
3. Post Independence Scenario and The British realised the inadequacy of their centralized Constitutional Status system only after the Revolt of 1857 which heavily strained The partition of 1947 created an abysmal state of affairs in the imperial finances. They felt the need for an institutional the whole nation which raised concerns for national arrangement at the local level to raise finances for integrity and unity. Nationalists suggested the Quasi replenishing the colonial exchequer and bear with the Federal model for governing the country which meant that nationwide antagonism against the colonial rule. Lord decentralization of power to the village Panchayats was Mayo's resolution of 1874 provided the much needed again curtailed. The drafting committee nowhere impetus for the development of local institutions in villages mentioned about the Panchayati Raj in any resolution to harness the local interests and care for the management presented before the Constituent Assembly. Gandhi on the of funds devoted to education, sanitation, health and other hand vehemently supported the idea of delegating public works, thereby enlarging their powers and administrative authority to Panchayats for proper responsibilities. The main aim however was to finance utilization of resources and representation of Indian local services out of local taxes. Following his footsteps, population, most of which (80%) resided in the villages. He Lord Ripon in 1882 provided the much needed insisted that such delegation would better reflect the democratic framework to these indigenous institutions. All people's voice in the nation's democracy, making them the existing boards were to have a 2/3 majority of the non- self-reliant from grassroots level. Imbued by his idea of officials, who had to be elected; the chairman of these 'village swaraj', Article 40 of Indian Constitution was bodies had to be from the elected non-officials. Although inserted in the Directive Principles of State Policy, entrusting it was a welcomed reform yet he was unsuccessful in the the state governments with the responsibility to organise implementation of this scheme as the board and landlord Village Panchayats and endowing them with such powers members seldom met due to the unfamiliarity of such and authorities as may be necessary to enable them to function as units of self governance. Further, Article 246 of The Royal Commission on Decentralization of 1907 Indian Constitution empowers the state legislatures to suggested the government to start from village level rather enact any law regarding any aspect of local self- than the district level for the administration of village affairs. Further, with the introduction of Montague- Since the Indian population was mostly rural, the Planning Chelmsford Reforms Act of 1919, Village Panchayats were Commission of 1950 emphasized its social, economic established in a number of provinces recognising the and political development through village Panchayats and corporate character of village and allowing it a wider sought to develop them as agencies of local planning, jurisdiction in terms of civic matters. The government made administration and developmental affairs. In pursuance of local self government a transferred subject under the the aforesaid emphasis of the planning commission, the scheme of diarchy and put it in the hands of Indian government launched the Community Development Plan provincial ministers. It enjoined an obligation on 8 in 1952 with the main objective of attracting active provinces to pass Panchayat Act by 1925. However this participation of rural masses in their self-upliftment. scheme collapsed due to organisational and financial Prabhat Kumar Datta, 'Making Local Self-Government in Rural India Work: Old Tradition And New Challenges, Indian Journal of Public Administration Vol. Lix No.1, January-March 2013, Pg.93 Panchayati Raj in India – Status Report 1999.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Accordingly, community development blocks were created contemporary Panchayati Raj system which aim at consisting of a group of villages under the control of a ensuring democratisation of governing process through Block Development Officer. He was assisted by a team of panchayats and municipalities. They contain both experts in the fields of agriculture, public works, animal mandatory and discretionary provisions regarding husbandry, etc. To supplement this scheme, National formulation of legislations pertaining to design and Extension Service was launched in 1953 to gain co- functionality of these local bodies at rural and urban level.
operation of the villagers and secure their participation in With the enactment of 73 amendment, the government modern agricultural techniques which were sought to be envisages the creation of a three tier system at village, intermediate and district level in all states where the In the year 1956, Balwantrai Mehta Committee was population is above 20 lacs. The panchayat seats are to be constituted to review community development projects filled through direct election at all levels (Article 243C); and critically examine the level of success achieved in the however the chairpersons at each level are to be elected implementation of these schemes. The committee according to the state laws. Article 243D provides for the suggested the creation of a three tier structure of statutory reservation of seats for SCs/STs in proportion to their local self governing bodies, at the village, block and population which shall cease to operate on the expiry of district level which shall have all the required authority and the tenure mentioned in Article 334. It further provides for resources to discharge their responsibilities. These a mandatory reservation of one-third of the total seats for recommendations were endorsed by the National women also applicable to seats reserved for SCs/STs at all Development Council in 1958 which directed the states to levels. According to Article 243E, elections are to be adopt the new Panchayati Raj with feasible modifications, conducted every five years and before the end of the term as the existing structures and state exigencies also had to of the incumbent Panchayat. Article 243K provides for the be considered revering the constitutional provisions of the creation of a State Election Commission to ensure unbiased elections, whose commissioner shall be appointed by the Governor of the state. He may be In 1967, the Administrative Reforms Commission removed only in the same manner as the judge of any High recommended the contrivance of district level plans with court. Article 243(1) features the creation of a Finance detailed guidelines and also suggested proper devolution Commission to scrutinize the financial position of the local of resources and funds that might seem appropriate bodies and make recommendations regarding the according to the established procedures existing allocation of budgetary funds.
beforehand. A similar opinion was shared by Ashok Mehta Committee which suggested that these Zila Parishads be Therefore, the government has been working diligently equipped with professionally qualified teams. Many states since independence, to strengthen and revitalise these such as Maharashtra, Gujarat and Karnataka tried to institutions which had lost their significance in our socio- implement this arrangement but suffered due to vastness of legal system. Many attempts have been made to scrutinize the geographical area in which it was sought to be the status and efficiency of these local bodies and to dispensed. However, L.M. Singhvi Committee of 1986 provide for decentralization of administrative authority. recognised the Gram Sabhas as the epitome of direct The 73 amendment has indeed set an impulse to the democracy sought by the government which was indeed prospect of consolidating them under a single being neglected. Sarkaria Committee 1988 noted that constitutional mandate. In spite of that the system has due to the diversity of state laws with regard to Panchayati encountered many challenges.
raj, the system faced several intricacies in the attainment of their objectives. It suggested the adoption of a uniformly applicable parliamentary law, to be established with the Although the 73 constitutional amendment conferred an consensus of all state legislatures.
obligation upon the states to implement the reforms in their During the government of Narsimha Rao two respective village panchayats, yet, significant clashes are constitutional amendments i.e. 73 and 74 amendments observed between the panchayati raj institutions and the were passed in 1992 and 1993 respectively, with local bureaucrats due to the absence of any defined role of ratification by the state assemblies of more than half of the political parties in this context. Interestingly, the nitty-gritty total states. The states had an year's time to revamp their details regarding implementation procedures have not existing legislations and bring them in conformity with the been specified clearly and every state seems to manipulate structural provisions of the new amendments. These them to their advantage. Since, no MLA would ever amendments are the fundamental structure of our compromise his authority and vote banks in his Dr. S.L. Goel and Dr. Shalini Rajneesh, Panchayati Raj In India, 2009, Deep & Deep Publications, New Delhi , p.34 The Panchayat Tradition, Mario D Zamora, 1990, Reliance Publishing House, New Delhi, p.12 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 constituency; they do not intend to delegate much of their decisions are tempered by the influence of covetous local powers to the Panchayat Pradhans. Therefore, the whole magnates. Hence, the voice of the weaker sections of our system suffers from lack of faith thus creating impediments society is often suppressed. Veil system is another in the administrative scenario. Moreover, the respective stumbling block which prevents the ladies of rural state governments do not formulate rules on proper community from attending the Gram Sabha meetings as distribution of funds to PRIs directly, thus, creating a lot of they do not tend to controvert with the male and senior confusion regarding proper allocation of state funds members of their society. Even when elected, the male among the three tiers of the system.
members of their families seem to express their personal accords through them in panchayat decisions.
The PRIs are overburdened with the performance of multiple functions. However, they simply do not have All these factors have a negative impact on the reforms sufficient finances to source the same. The state sought to improve decentralization.
governments have entrusted them with the task of collecting land revenue which indeed fills up their 5. The Threat of Extra-Judicial Authorities exchequer, but only with meagre sums. Such finances are In some states, the 'kangaroo courts' (also known as hardly adequate to supplement the developmental KHAPS) pose an imminent threat to the administrative activities sought to be brought through them.
system mainly in north India (Rajasthan, Haryana and Since the constitution does not mention any educational western Uttar Pradesh). These Panchayats are a peculiar qualifications for being elected as a Panchayat member, feature of the Jat community. They are extra-constitutional the uneducated ones are unable to understand the institutions and are not approved by our constitution in any complex rules, paperwork and proformas for managing form. Nevertheless, they indeed enjoy the social finances. This paves a way for the officials to look down recognition of local communities due to their age old upon them with contempt and indulge in corrupt practices. importance within the region and dealing in the local Moreover, the officers working at grassroot levels are not affairs in customary fashion. For instance, the invasion of answerable to the elected members of Panchayat and the furious invader Timur was triumphed by the Khaps who intend to remain in their own administrative hierarchy, was further killed in the battle in 1398 A.D. However, the therefore, the demands of these elected panchayat Khaps have recently emerged as Quasi-judicial bodies members are often dodged nonchalantly.
comprising of local magnates, who due to their influence in the society often pronounce judgements which exhibit Recently, Rajasthan became the first state in the country to least regard for life and liberty and are not deterred from fix a minimum educational qualification for contesting to moving away from the processes of administration of the PRIs. Rajasthan Panchayati Raj (Amendment) Bill, 2015 justice according to the constitutional provisions.
makes Class VIII pass mandatory for the post of Sarpanch – except in tribal areas (where minimum qualification is Many cases regarding 'honour killing' have been reported Class V) and Class X for Zila Parishads or Panchayat Samiti due to the fact that hindu customs strictly forbid intra-gotra elections. Simultaneously, this move has drawn sharp marriage as the parties to such marriage are deemed as criticism from many quarters which assert that every person cousins and any such union between them would be has a right to participate in democracy, even the illiterate. incestuous. They project that such acts purport to The constitution does not debar the illiterates from desecrate community honour. The Hindu Marriage Act, contesting any election even for an MP or MLA.
1955, does not prohibit inter-caste and intra-gotra marriage and it has been persistently stressed upon by the Despite all efforts of the Legislature to involve active Supreme Court of India that these community heads have participation of the weaker sections by providing for their no right to declare such marriages void which have been reservation in panchayat seats, they are unable to take permitted by law.
active part in Panchayat activities due to the unequal social structure and rigid caste system prevalent in the Indian In the case of Arumugam Servai vs. State of Tamil Nadu society. This creates hurdles in the path of efficient the Supreme Court came heavily on the practice of administration which cannot be ignored. It is noted that the khap/katta panchayats taking law into their own hands general house meetings in Gram Panchayats often witness and indulging in offensive activities which endanger the poor attendance of local villagers as the panchayat personal lives of the persons marrying according to their choice.
Interview with PCS officer Sh. NS Choudhary (Himachal Pradesh Cadre, Batch of 1988) date: March 20, 2015 The Hindu – Newspaper of March 28, 2015.
Mangal Sen Jindal "History of Origin of Some Clans in India (with special reference to Jats)", 48 (Sarup and Sons, 1992).
Arumugam Servai vs. State of Tamil Nadu (2011) 6 SCC 405.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Bhagwan Das vs. State (NCT) of Delhi is another limit of which may be set by the government, are elected to interesting case where the daughter of the accused left her the positions. This education can be impacted by husband Raju and decided to reside with her uncle. This independent bodies devoid of any exterior influence. instance infuriated the accused who considered it to have Educating people would again prove to be useful as brought shame and dishonour to his family. The accused consciousness levels among the people rise. In effect, they strangulated his daughter to death with an electric wire. would be less liable to be wooed by political parties.
The Supreme Court while affirming the decisions of both It is an apt criticism that these institutions are "grass" the trial court and the High Court concluded that the without "roots". To provide roots to the Panchayati Raj conviction of the accused was justified that there was no Institutions, there is a need to activate the institution of reason to disagree with their verdicts.
Gram Sabha or Village Assembly. They must be entrusted Recently a 20 year old girl was gang raped in Bhirbhum with real powers to eliminate the influence of bureaucracy. district of West Bengal on the orders of Salishi Sabha Construction of an outward structure of Panchayati Raj and (equivalent to Khap panchayats in the region). Initially, the to give it no substance would be like a body without a soul Panchayat imposed a fine of Rs. 50,000 on the girl for dead from the start, a still born child. Most of the powers marrying a man outside her community. When her father in the present system are exercised by the Block District expressed his inability to pay such fine, the kangaroo court Officers and the District Magistrates. This power needs to ordered for the girl's rape. Allegedly, 12 persons are be conferred upon all the tiers of the Panchayat institutions. suspected to have been a part of this gang rape including When real responsibility is discharged at the local level the sabha's head Sunil Soren.
then only the vision of development can be realised. Moreover, effective legislation needs to be enacted and Since, their reasoning is based on age old customs, people enforced to keep away political parties from interfering fear that defying their decrees would invite social boycott with the functioning of these bodies.
that thing simply yield to their authority. As a matter of fact, even the local officials have to cohabit in the same Besides giving these bodies more power, they should be community. Hence even they do not meddle with their given their share of financial resources, which would make functioning. To make this scenario worse, sheer them less dependent on external sources of finance. State indifference of politicians and vote bank politics allow should not become an intermediary for the devolution of these extra-constitutional institutions to run unfettered.
funds, or, even if state is an intermediary, it should be subject to some conditions. Initiatives like the Rajiv Gandhi 6. Critical Evaluation and Remarks Panchayat Sashaktikaran Abhiyan, could prove to be Although the Panchayati Raj Institutions have undergone a useful for the provision of sufficient funds to the tremendous amount of development and India is very Panchayats. Under this scheme, for accessing the close to accomplishing the Gandhian ideal of "swaraj" Panchayat funds, the state would need to fulfil some basic through self-government in the villages, yet lot more needs criteria which included regular elections to Panchayats or to be achieved. The dream of successful and efficient local bodies under the superintendence and control of the functioning of Panchayati Raj Institutions in India is yet to State Election Commission (SEC). There should be at least be achieved. Without making reforms in the system, the one third reservation for women in Panchayats or other Indian government will not be able to foster the growth of local bodies. Moreover, unless the state fulfils these basic lakhs of people who live in rural India.
elements, it should not be eligible for accessing the funds. Twenty percent scheme funds are linked to action taken by The need of the hour is decentralisation of power by the States for implementation of the provisions of the 73 minimising the role of the intermediary bureaucracy and Amendment to the Constitution of India in the following formulating such a framework for the rural government areas - Articulating an appropriate policy framework for which is democratic in the true sense. Education plays an providing administrative and technical support to extremely important role in the success of the Panchayati Panchayats; strengthening the financial base of Raj System that it needs to be ensured that only people, Panchayats by assigning appropriate taxes, fees, etc.; who have undergone some basic educational training the provision of untied funds to Panchayats and timely release Bhagwan Das vs. State (NCT of Delhi), (2011) 6 SCC 396.
Hindustan Times, English Daily, 24 January, 2014.
Ramjee Singh "Panchayati Raj, Grass-roots of Democracy" 16, Ibid.
M Maharajan "Panchayati Raj" in Anil Dutta Mishra, Mahadev Shivappa Dadage, "Panchayati Raj (Gandhian Perspective)", p 1 (A Mittal Publication, 1 Ed., 2002).
Supra Note 17.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 of State Finance Corporation and Central Finance by such institutions. The only solution to this problem is Commission (CFC) grants; ensuring devolution of funds, limiting the powers of Khaps through effective functions and functionaries; ensuring free and fair embellishment of Nyaya Panchayats, which can be made elections, strengthening the institutional structure for responsible for settling trivial conflicts within the village capacity building of Panchayats, selecting suitable level and awarding minor punishments in civil and partners for capacity building, and improving outreach criminal cases. This will instil a sense of self-reliance in the and quality of capacity building; putting in place a system locals and would also enable the government to scrutinize of performance assessment of Panchayats; strengthening the activities of these Panchayats.
Gram Sabhas, promoting Mahila Sabhas/Ward Sabhas Thus, all these reforms suggested above have to be etc. More of such initiatives are needed for efficient brought in by the government by way of enacting functioning of these institutions.
appropriate legislations. Having a strong local Recently, Prime Minister Narendra Modi took an initiative representation at the village level would strengthen the under which the 14 Finance Commission recommended democracy and fulfil the dream of constructing a welfare an increase in the share of states, from 32% to 42%. Moreover, an amount of Rs. 200,292 crore was allocated for the panchayats for the next five years from April 2015. However, the downside of the system is that, the states have Democracy should percolate from the parliament to the complete autonomy as to how to transfer this fund to the panchayats. Strengthening the institution of panchayats panchayats. Such a dependence of the local bodies on the would go a long way in fortifying and sustaining the state authorities should be done away with as it democracy even in the remotest areas, thus increasing the undermines the spirit of local governance and democracy rural participation in their self development. In the words of of the people, by the people and for the people that S. K. Dey, "If we want to rebuild India, work must start from becomes democracy of the government, by the the villages." government and for the government.
Successful development of a democracy can take place The impregnability of Khap panchayats or the extra only when the interests of the weakest sections of the jurisdictional authorities as we call them cannot be society are taken into cognizance by the government. And underestimated because they have been a part of these the most ideal way of doing that is to create a self-sufficient societies since times immemorial. It must be contemplated government at the local level. Complete autonomy needs that they have indeed formed a socio-legal system in itself to be given to the Panchayats and effective legislations for those societies. This is a battle between universalism must be enacted and implemented by the government in and cultural relativism where the constitution seeks to order to properly define the role of various government provide basic liberties to every citizen but on the contrary, organs in relation to the PRIs avoiding any equivocation. these institutions seek to preserve their traditional thought. The development of Panchayats would lead to greater The social acceptance they enjoy cannot be challenged representation of the lowest rungs of the society. Only straightaway as it would undeniably be dealt as an when these institutions are democratised and given priority encroachment upon their cultural values no matter how by the government in legislation schemes, only then can direful their decrees may be.
India aspire to nourish its development. Pandit Nehru fairly However, no entity is above the law of the land and what is emphasised, the goal for establishing Panchayati Raj, is "to constitutionally guaranteed cannot be denied imperiously give to the millions of our people, the chance to share responsibility, do good work, and grow in the process." Rajiv Gandhi Panchayat Sashaktikaran Abhiyan, available at http://pib.nic.in/newsite/efeatures.aspx?relid= 98266. Last visited on April 22, 2015 Richard Mahapatra "RIP Panchayati Raj Ministry" in Millenium Post Newspaper, 17 March, 2015.
Supra Note 17, p 180.
S.K. Dey, 1986. ''Panchayati Raj in Independent India: Some Personal Reflections", In George Mathew (Ed), Panchayati Raj in Karnataka Today (New Delhi Institute of Social Science), pp.32- 46.
Supra Note 21.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Alienating the Contours of Restorative Theory:A Re-Examination of Punishments in Indian Criminal Justice System Ms. Tishta Tandon* Broadly, theories of punishment are classified into five categories: deterrence, retribution, incapacitation, reformation and restoration. In deterrent and reformative theories of punishments, criminals are considered to be threatening outsiders and there is a need to punish or rehabilitate them for protection of society. The issues that remain unresolved are whether punishment is essential to defuse public anger and does punishment act as a deterrent? In response to such questions, this paper traces an alternative theory of punishment, that is, Restoration, which is a normative theory and an evolving reform movement. Literally, restorative theory involves the process of returning all parties involved in or affected by the misconduct (offenders, victims, community) to their previous conditions. The goal of restorative justice is inclusion and reconciliation among the offender and the society, rather than promotion of guilt, retribution or punishment. The paper begins by undertaking a detailed study of the aspects of Restorative justice, looks at restoration in practice and attempts to distinguish it from other theories of punishment. Subsequently, advantages accruing from Restorative theory are analyzed and juxtaposed with the limitations of the same. The paper finally concludes with the observation that the Indian criminal justice system embodies limited traces of restorative principles and there is a need to act upon the recommendations of various committees on reforms of criminal justice system, so as to incorporate more restorative principles in India.
Key Words: Restorative theory, Punishment, Indian criminal justice system, Evolving reform movement, Reconciliation Restorative justice theory is often touted as a new "lens" or a long overdue third model. It has been hailed as a system Various theories of punishment have been developed over that can deter, incapacitate and rehabilitate more centuries to provide an ethical rationale for punishment or effectively than a punitive system . The attempt to make a to justify its imposition. Traditional concept of crime and coercive process more conversational, consensual and punishment underwent a radical transformation in the 20 constructive is what sets restorative theory apart from other century. Focus shifted from crime to criminal, and then to theories of punishment and makes it appealing as a community. This transformation led to the birth of a new or progressive alternative to control crime. Nils Christie, alternative theory of punishment, now known as restorative John Braithwaite and Howard Zehr are some of the early theory. It is a relatively new invention as a theory of proponents of restorative theory who called for reform in punishment and the term restoration came to be criminal justice system by shifting the focus from punishing recognized in 1970s for victim-offender mediation and or reforming the criminal (both offender centric), to reconciliation efforts, which were taking place in Northern restoring what was lost by the victim and the community.
America. Restorative justice measures have primarily been used in dealing with minor offences and juvenile offenders The aim of restorative theory is to restore all those affected in many countries across the world. In fact, restorative by the crime, i.e., offenders, victims and community. They justice policy, which has been employed by some are known as the "three clients" of restorative justice. The countries, has been successful to such an extent that the premise is that a relationship between all these future of criminal justice cannot be anticipated without stakeholders has been damaged and so it now requires a understanding what restorative theory is.
process to reconcile and restore the feeling of association Student, B.A. LL.B., Second Year, Semester I, National Law University, Delhi.
Zehr Howard, Changing Lenses: A New Focus for Criminal Justice 41 (Herald Press, Scottsdale, 1990).
Gerry Johnstone (ed.), A Restorative Justice Reader 83 (Routledge, London, 2003).
John Braithwaite, "Restorative Justice: Assessing Optimistic and Pessimistic Accounts", 25 Crime And Justice 4, 104 (1999).
Alburt W. Dzur, "Restorative Justice and Civic Accountability for Punishment", 36 Polity 3(2003).
Bazemore and Gordon, "Evaluating Community Youth Sanction Models: Neighbourhood Dimensions and Beyond" in NIJ, Crime and Place: Plenary papers of the 1997 Conference "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 that has been affected, through mutual communication, of restorative theory have also emphasized community's and not imprisonment. The approach of restorative theory role in "norm clarification" and building social values is in this sense, quite radical.
through restorative process.
The need for restorative theory arose from the widely The objective of the current study is to critically evaluate accepted belief held in the 20 century that the courts and application of restorative theory of punishment in the criminal justice system do not enable an offender to Indian Criminal Justice System.
perceive the human costs of what he has done. Offenders get entangled in the legal process and their main concern 2. Comparative Analysis of Restorative becomes to minimize their penalties. Moreover, the offenders are also alienated from the society, as a Retribution is a 'just deserts model'. The basic principle is consequence of the crime they commit. Restorative theory that the guilty deserve to suffer pain and punishment, addresses all such concerns related to offenders. In corresponding to the harm they have inflicted on their restoration, offenders are reintegrated into the community victims. Both retributive and restorative theories strive to and transformed from criminals to law-abiding citizens, achieve justice, as opposed to curbing crime, which is the who acknowledge their guilt.
goal of incapacitation, deterrence and rehabilitation. The second client of restorative justice, i.e., victim is However, the difference between the two is that displaced in the current criminal justice systems by the state retributivists seek to achieve this end by imposing pain, as the state prosecutes for the public wrong, which was while restorativists see recognition and repair of harms as actually committed against the victim. Crime can be the means to achieve this end. Retribution forces the traumatic for a victim as it shakes his belief in the prevailing offender to take responsibility for his crime whereas social order. Unlike other theories that usually neglect the restoration is voluntary acknowledgement of culpability.
victims or treat them as bystanders, restorative theory Deterrence aims at prevention of further crime by fear and gives a greater voice to victims in the proceedings. It helps threat of punishment. Utilitarian philosophers first the victims heal, both in monetary and emotional sense. proposed it as a means to deter crimes by both actual and This is achieved by awarding compensation and costs to potential offenders. Punishments are imposed not only for the victim for the loss suffered and in addition to that, the criminal himself, but for the deterrent effect such restoration practices give the victims a chance to voice measures will have on the community. The wrongdoers their anger and sorrow and experience a sense of justice, discharge the 'debt' owed to the society, but not to the when the person who caused them harm pleads guilty or victim particularly. Restorative theory, on the other hand, apologizes. The restoration process also tends to reaffirm recognizes the criminals' debt being owed to the actual their faith in social order.
victim and not the potential victims or the society.
Restorative justice empowers communities. The The rationale of Incapacitation is that "Wicked people importance of community in this theory can be gauged exist. Nothing avails except to set them apart from innocent from the fact that restorative justice has sometimes been people." It underscores the inability of victims to harm called as community justice. This is because community people outside prison walls during incarceration. So members or organizations play a more active role in incapacitation focuses on risk control, unlike reforming criminals through restoration. Many supporters reconciliation of offenders, victim and the community, Thom Brooks, Punishment 64-65 (Routledge, London, 2012).
Supra note 1 at p. 41 Supra note 2 at p. 17 10 Supra note 7 at p. 7011 D.P. Kelly and E. Erez, "Victim Participation in the Criminal Justice System" in Robert C. Davis, Arthur J. Lurigio, et.al. (eds.) Victims of Crime 232 (SAGE Publications, USA, 6 edn. 1997).
12 Supra note 1 at p. 2113 T.R. Clear and D.R. Karp, The Community Justice Ideal: Preventing Crime and Achieving (Westview Press, Boulder, 1999).
14 Nils Christie, Limits to Pain: The Role of Punishment in Penal Policy 8 (Wipf & Stock, 2007).
15 Mary Maguire and Dan Okada (eds.), Critical Issues in Crime and Justice 323 (SAGE Publications, USA, 2011).
16 G. Bazemore and M. Schiff, Restorative Community Justice: Repairing Harms and Transforming Communities (Anderson Publishing, Cincinnati, 2013).
Gerry Johnstone (ed.), A Restorative Justice Reader 40 (Routledge, London, 2 edn., 2013).
18 James Q. Wison, Thinking About Crime 391 (Basic Books, 1975).
19 Supra note 15 at p. 302 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 which is the aim of restoration. Victims are ignored in contract is agreed upon that the offender must fulfill in incapacitation and society in abstract is the main order to get restored. Terms of the contract usually include stakeholder. On the other hand, victims are central to the community service, treatment for drugs and alcohol addiction and so on. The aim is to avoid the cold and harsh atmosphere of the courts wherein the offenders might not Rehabilitative theory is a lot like restoration, in the sense feel comfortable in accepting guilt or in repenting their that both aim at reforming the criminal's attitude and equipping him with professional skills or education to prevent recidivism, instead of deterring future crimes Restoration also encompasses measures that reform the merely by punishment. Rehabilitative theory justifies criminal, like education, training, compulsory punishment and use of prisons to reform prisoners. On the employability in prisons, social reintegration through other hand, main focus of restorative theory is to find non- monitoring (probation) and so on. These are constitutive prison ways of reformation. Moreover, restoration elements of punitive restoration theory. Restorative theory encourages offenders to accept culpability and take moral does not necessarily seek abolishment of prisons, as is responsibility for their acts. However, rehabilitation fails to generally perceived. What advocates of punitive do so as it merely seeks to treat or cure a criminal.
restorative justice argue is that the goal of imprisonment is not only penal, but also restorative; it is to make an 3. Working of Restorative Justice offender a non-offender. They say that custody cannot lead Restorative justice has been practiced in two forms, pure to real rehabilitation and character can't be changed in and punitive. Advocates of pure restorative theory artificial environments under strict scrutiny by officers. primarily aim at abolition of prisons and justice system Restorativists base their argument on the presumption that controlled by the state. The proponents of this theory behavior patterns that a person learns in a cage just help believe that trials are merely about winners and losers and him to survive in that cage and do not make him capable of the primary objective is to defeat the other party. As living in a community. This view is also reflected in the opposed to this, pure restorative theory supports mutual declaration of the American Correctional Association understanding and satisfaction of all parties concerned (1960) which reiterated that for "restoration of an through restorative conferences.
economically self sustaining member of the community, the correctional program must make available to each Restorative conferences include victim-offender inmate every opportunity to raise his educational level, mediation, family group conferences and community improve his vocational competence and skills." conferencing. Participants of the conference or the parties that have a stake in implications of the crime, try to address Amnesty International formed certain rules for treatment of the after-effects of the crime. So, in that sense, restorative prisoners in 1955, which clearly explain the necessity of conferences can be called as a stakeholder society in restorative justice even in prisons. This document is not miniature. There is a constructive dialogue to promote obligatory but it is a part of basic rules of law in many mutual understanding among the parties. These democratic countries. According to rule 60(2), conferences require consent of both parties and punishment should not aim at exclusion of prisoners from acceptance of guilt by the offender. John Braithwaite has the community but their reintegration into it. It mentions the named this process as reintegrative shaming theory. The role of community agencies in assisting prison staff in offence and not the criminal is shamed or condemned. The reforming the prisoners.
basic idea is to evoke a sense of remorse and responsibility Therefore, restorative justice practices can be seen as in the wrongdoer for his conduct. This is a unique element forums for negotiation of multiple values and goals of of pure restorative theory, as we don't have to necessarily punishment. It is a mode of finding legitimate punishment admit our guilt during imprisonment or payment of fines, and not just abolishing the system of imprisonment. Norms for instance. Through mediation and communication, a of restorative justice may be very difficult to achieve but, by 20 Supra note 17 at p. 24721 Thom Brooks, Right to a Free Trial (Ashgate, UK, 2009).
22 Supra note 7 at p. 6523 Bruce Ackermann and Anne Alstott, The Stakeholder Society (Yale University Press 2000).
24 Jakob Von Holderstein Holtermann, "Outlining the Shadow of the Axe on Restorative Justice and the use of Trial and Punishment", 3 Criminal Law And Philosophy 198 (2009).
25 Nitai Roy Chowdhary, Indian Prison Laws and Correction of Prisoners 149 (Deep & Deep Publications, New Delhi 2002).
26 Id. at p. 24227 Supra note 25 at p. 6028 Supra note 4 at p. 17 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 integrating these norms with the rehabilitative justice a measure designed to rehabilitate offenders, or an mechanisms, we may be able to achieve a more opportunity for offenders to apologize to their victims, or democratic, humane and effective criminal justice system. an opportunity for participants to express their feelings, or In the light of this argument, there is a need to critically some combination of the above.
assess the principles of restorative justice and their There are a number of plusses incidentals to the restorative process like flexibility in dealing with cases on an individual 4. Restorative Theory: Virtues and Vices basis, humanitarian treatment of offenders by the public, and the like. In the midst of all these benefits that have been The foremost advantage of restorative justice is the attributed to restorative theory, it is important to note that assistance provided to victims of crime who have suffered some theorists or administrators of justice have perceived an emotional, physical and (or) fiduciary loss. The losses to restorative theory of punishment with considerable the victims are repaired through compensation and by skepticism or concern.
giving them a pivotal role in the proceedings, victims are empowered and their faith in justice is restored. Critics tout restoration as an incomplete theory of Restoration can make the situation better not only for the punishment. They advocate that restorative theory doesn't victim, but for the criminal as well. "Restitution is something offer strategies applicable to all crimes, especially heinous an inmate does, not something done for or to him… Being crimes. It is advocated mainly for minor felonies, reparative, restitution can alleviate guilt and anxiety, which committed by juvenile offenders. Hence, it is limited in can otherwise precipitate further offences." scope and application. A major reason for this lack of wide application is the concern that non-punitive nature of Punitive Restoration can also contribute to curbing restorative justice and its assertion for abolition of prisons recidivism as criminals acquire professional or employable hamper its public acceptance and effectiveness.
skills, rather than being hardened with other grave offenders in jails. It encourages useful, productive activity Skeptics ascribe this lack of public confidence to and instills good behavior and hard work. Moreover, perception of restorative justice as a soft approach on through compulsory work in prisons, productivity is criminals. It is said that restorative justice terms are easy to increased and cost borne by taxpayers in incarceration of serve and do not act as a deterrent to many hardened criminals can be reduced. Even the idea of pure criminals or serious offenders. For critics, restoration restoration to avoid prisons through mediation and remains a utopian idea, as they believe that victims and reconciliation is also far more economical than keeping offenders can never fully reconcile their differences or feel under trial accused in prisons, more so in a situation where satisfied, solely through dialogue.
there is already overcrowding of prisons by convicts.
Shame punishments such as re-integrative shaming, which Community service, which is a part of restoration, are a part of restorative process, and are used to instill a enhances feeling of citizenship and belongingness in the sense of guilt in convicts have also been criticized on convicts. They are reintegrated into the community various grounds. One such cause for censure is that through participation of multiple stakeholders and this in offenders become susceptible to violence and community turn strengthens the bonds among members of the members may become averse to communicating with community and the norms they abide by.
them. Critics also emphasize that offenders must not be humiliated and they should endure punishments with their The proponents also argue that moral advantages of pure dignity intact. Proponents of restorative theory argue that Restorative theory outweigh its efficiency criticisms. shame is already a part and parcel of our justice system as Majority of the offenders do not perceive the reconciliation identity of a criminal is disclosed publically, which leads to conferences they attend as punishment. Rather, they see humiliation of the offender and his family, in the restorative justice as a strategy aimed at offender rehabilitation. Similarly, most victims felt that the conferences were not punishment. They either saw them as Due to the central role played by victims in restorative 29 Supra note 2430 Supra note 17 at p. 5331 Margarita Zernova, "Aspirations of Proponents and Experiences of Participants in Family Group Conferences" The British Journal of Criminology 5 (2006).
32 Supra note 7 at p. 21233 Ibid. at p. 7534 Andrew Von Hirsch, Censure and Sanctions, 82 (Oxford University Press, New York, 1994).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 process, it becomes ineffective when victims are not willing "Prison is an arena of tension, trauma, tantrums and or encouraged to be a part of restoration. Some people crimes of violence, vulgarity and corruption. And to cap it have also alleged that restorative programs become all, there occurs the contamination of pre trial or accused offender focused and victims are treated only as 'agents of with habitual and injurious prisoners of international gang. offender rehabilitation' in the process, in a way that their There is a large network of criminals, officials, and non- needs are ignored. Several victims and their supporters officials in the house of correction; drug, racket, have mentioned that they felt uncomfortable because of alcoholism, smuggling, violence, theft, and what they perceived as a non-punitive and non-blaming unconstitutional punishment by way of solitary cellular life approach adopted by conference organizers towards are not uncommon. Hence, a need arises to look beyond prisons to curb crime in India." The Law Commission of India also remarked in its report that jails are over crowded High caseloads, limited resources and lack of training of and the public exchequer has to bear the resultant criminal justice agents and officers also pose difficulty in economic burden.
implementation of restorative theory. Some say that application of restorative justice with hierarchical and With a view to addressing concerns of judiciary, police and coercive structures of criminal justice system actually the society in general, related to the shortcomings of distorts the ideas of restoration and results in something incarceration, All India Jail Reforms Committee was very different from what had been envisaged. Another appointed in 1983 with Justice A.M. Mulia as its chairman. concern includes lack of consistency in how similar crimes It recommended alternatives to imprisonment such as are redressed in restorative theory. The voluntary claim of community service, payment of compensation to victims, restorative theory has also been questioned. Participation public censure etc. and especially advocated in restorative processes is often driven by fear of implementation of Probation of Offenders Act, 1958.
punishment or orders of the court. Most of the offenders Probation means avoidance of a prison term through a are not very keen on attending the conferences.
contract, which includes certain conditions that the There is a need to employ restorative theory in the criminal offender must meet to evade imprisonment. Probation justice system, in a manner that minimizes its shortcomings prevents severance of family ties and stigma associated and utilizes its potential merits. Especially in developing with punishment. It seeks to protect society and countries like India, restorative theory can be a solution to simultaneously, helps the offender become responsible increasing incarceration expenses, recidivism and and return to his normal livelihood. Empirical studies abysmal prison conditions that harden the criminal, have shown that the critics' opinion about probation's instead of reforming him. So, it is essential to examine ineffectiveness is unfounded. Recidivism in probation whether Indian criminal justice system embodies cases has been observed to be merely 3% in West Bengal. restorative ideals or not.
This is not a yearly rate but it spans for about 15 years. In addition to this, probation is economical. Average 5. Traces of Restorative Principles in India expenses for maintenance of jails and their administration The courts in India have been reflecting upon the was Rs.579.58 whereas, the expenditure on probation detrimental effects of prisons on offenders and questioning was only Rs.105.46 per probationer, per year.
the success or credibility of rehabilitative justice for a few Probation of Offenders Act, 1958 was a huge step by the decades now. The Honorable Supreme Court observed: Indian parliament in making the justice system more 35 Supra note 7 at p. 8036 Supra note 17 at p. 34837 Supra note 31 at p. 2038 Byrnes M., Macallair D. et.al., Aftercare as Afterthought: Reentry and the California Youth Authority (Center on Juvenile and Crime Justice, San Francisco, 2002).
39 Supra note 31 at p. 240 Id. at p. 1341 Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 at p. 158642 Law Commission of India, 142 Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining (1991).
43 Government of India, Report: All India Jail Reforms Committee Report (Ministry of Home Affairs, 1991).
44 Jyotsna H. Shah, Studies in Criminology- Probation Services in India 118 (N. M. Tripathi Pvt Ltd, Bombay 1973).
45 N. K. Chakrabarty, Probation System in the Administration of Criminal Justice 36 (Deep & Deep Publications, New Delhi, 2007).
46 Id. at p. 37 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 efficient and humane, especially for offenders who are recognized the pain of victims who "feel ignored and are below 21 years of age. Provisions of the Act include crying for attention and justice." In response to a question admonition, release on probation for good conduct asked about alternate forms of punishment, findings show and payment of costs or compensation by the offender for that compensation to victim, public apology, rendering loss or injury caused to any person by the offence. All social service and labour work are some of the suggested these can be seen as a gradual shift of courts and measures that can be included under section 53 of the legislature in India towards restorative principles. Even the Indian Penal Code, 1860. Majority was in favour of system of open prisons, which is found in some states in extending the benefit of Probation of Offenders Act to India, marks a transition from traditional prison settings to accused persons of all ages. Payment of a part of income more liberal and community oriented reformative facilities. to the victims, accruing from work done by the offenders in Dr. C.P. Tandon, former Inspector General of Prisons, U.P. prisons is also a novel measure that was proposed. All defined open-peno-correctional institutions as being these suggestions have not been accepted or implemented "characterized by: by the Parliament yet. However, the response received by the Committee clearly illustrates the opinion of the people Degree of freedom from physical precautions, such as in India with regard to such restorative measures. Reforms walls, locks, bars and special guards must be introduced in accordance with popular sentiment The extent to which the fagging is based on self- and in the interest of justice in India.
discipline and the inmates' responsibility towards this Meeting of Priyanka Gandhi with Nalini, the infamous killer of Rajiv Gandhi can be stipulated as the arrival of Conditions in open prisons resemble closely the real life restorative justice in India, in its truest form. Such victim- situations. Open prison helps an offender in being offender conferences or meetings are yet to find a place in holistically reformed and reintegrated into the community the Indian criminal justice system. It is hoped that taking by inculcating a sense of freedom and responsibility in him, cue from success of restorative justice in other countries, without stringent prison rules. Open prisons are more India will recognize and incorporate such measures to flexible and group talks, mediation sessions, which are make the process of justice more inclusive, harmonious restorative techniques, can be easily organized in open and effective for offenders, victims and the community.
prisons in India.
6. Concluding Remarks Apart from this, there has also been an effort to mandate training and education in jails in India. The National Expert Restorative justice theory has been formulated as an Committee on Women Prisoners with Justice Krishna Iyer alternative theory of punishment that restores the as chairman, suggested compulsory employment, training offenders, victims and the communities. Restoration has and work for women prisoners. They argued, "Training of proved to be very promising as a developing and evolving women prisoners is an area of great relevance to justice mechanism. Indian justice system has incorporated correctional work and to the process of restoration of some elements of punitive restoration theory. Though the dignity of the women offenders." The report also punishments mentioned in section 53 of the Indian Penal recommended probation and other non-institutional Code, 1860, do not embody restorative principles mechanisms of corrective treatment to be widely used for substantively (except fine which is an aspect of punitive women prisoners.
restoration), still restorative justice exists in India and can be discerned in probation, open prisons, compulsory Committee on reforms of criminal justice system was employment in jails, development of vocational skills of formed to analyze opinions of various stakeholders like inmates, payment of compensation to victims and so on. police, judges, state governments, etc. so as to introduce Therefore, it can be concluded that limited traces of required reforms. The report of the committee has restorative theory can be found in the Indian criminal 47 Probation of Offenders Act, 1958 (Sec. 3 of 1958).
48 Id., sec. 449 Id., sec. 550 N. K. Chakrabarty, Administration of Criminal Justice- The Correctional Services 43 (Deep & Deep Publications, New Delhi, 1997).
51 Supra note 25 at p. 25252 Government of India, Report: Report on National Expert Committee on Women Prisoners 153 (Ministry of Home Affairs, 1987).
53 Id. at p. 15254 Id. at p. 32555 Government of India, Report: Committee on Reforms of Criminal Justice System 1 (Ministry of Home Affairs, 2003).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 justice system. However, a lot remains to be done in India safety, enhance social order and make the experience less to categorize our penal system as purely restorative. hostile for all concerned. There is a need for the parliament Moreover, in the light of the discussion on pros and cons of to act upon the reports drawn out by various committees restorative theory, it can be concluded that restorative on reforms of criminal justice system of India from time to justice has great potential to humanize prisons, improve time and enact laws on the basis of their recommendations, so as to absorb more restorative principles in Indian penal justice system.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Extra- Judicial Killings: Law and Practice Ms. Shrinkhala Prasad* Mr. Vikash Gaurav** Viewed by proponents as a necessary measure to combat the threat of crime and terrorism, extra judicial-killings have become increasingly controversial in India. Extra-judicial killings refer to the practice of killing and executing political opponents or suspected offenders, carried out by armed forces, law enforcement or other governmental agencies or by paramilitary or political groups acting with the support, tacit or otherwise, of official forces or agencies. Since the late 1960s, extra-judicial killings have been euphemistically referred to as 'encounter killings'. The phrase 'encounter killing' has originated from the term 'encounter' as employed by the Indian Police Service, along with the Indian military and paramilitary force to describe a specific kind of contact whereby an alleged criminal or person of interest is killed in a spontaneous, unplanned "shootout". The nature of encounter killings, which are generally conducted in areas away from crowds, and the ease with which police and security forces can claim a legitimate justification for their killings, make it difficult to correctly estimate the number of fake encounter killings in India. The Coordination of Democratic Rights Organisations (CDRO) believed that the 2007 figures for "Police Firing" in "Anti-dacoity Operations" and "Anti-extremists and Terrorist Operations", are 334 and 183 respectively. The current legislative and judicial framework has not yet done anything to prevent the use of encounter killings or hold accountable those who perpetrate them.
Key Words: Extra-judicial killings, Encounter killings, Legitimate justification, Fake encounter, Judicial framework.
encounter killings, along with the broader media and cultural response. The second part of this paper analyses The prevalence of encounter killings raises important the factors within the judicial system that allow for and questions about what policies and factors have allowed potentially encourage encounter killings. The third part of these gross human rights abuses to reach problematic this paper considers the legality of encounter killings in levels in India. This prevalence has led human rights relation to Indian domestic law.
activists to conclude that encounter killings have been adopted as institutionalized policy within the Indian police 2. Historical Overview: Understanding the and security forces. Despite recent media attention surrounding some prominent encounter killings, many human rights bodies consider the media to be largely Encounter killings have been used throughout India's indifferent to such incidents. Moreover, the favorable history and continue to be widely employed, particularly in depiction of police encounters in Indian cinema is areas where criminal or militia activity is high. The public representative of a wider cultural perception that and media seem to take no particular stand on encounter encounter killings are a positive and perhaps even necessary measure to ensure security. Such a positive 2.1 The Use of Encounters depiction suggests that maintenance of order is more important than adhering to the rule of law. Moreover, it Extra-judicial killings are not a modern phenomenon in neglects the damage that encounter killings inflict on the India. Evidence of extra-judicial killings in Andhra Pradesh, foundations of the criminal justice system and increases for example, dates as far back as the Telangana peasants' the likelihood of State or its agents abusing its power.
struggle of the late 1940s. Police forces, empowered by the Madras Suppression of Disturbances Act, 1948, are It demonstrates that the prevalence of encounter killings is estimated to have shot at least 2,500 individuals under the linked to official and unofficial policies both within the guise of 'police action'. The use of 'encounters' to kill Indian police and security forces and within the political activists was increasingly prevalent in the late government and judiciary. The first part of this paper examines the historical backdrop behind today's * Student, Third Year, Semester VI, Chanakya National Law University, Patna, Bihar.
** Student, Third Year, Semester VI, Chanakya National Law University, Patna, Bihar.
1 P. Srikrishna Deva Rao, 'Encounter' Killings in Andhra Pradesh, Economic Political Weekly, 30(44), 1995, pp. 2787-8.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Encounter killings have been particularly prevalent in Some researchers have estimated that hundreds of volatile regions such as Jammu and Kashmir, Punjab, encounter killings took place during the police crackdown areas with a Maoist presence, the Northeast, and crime on organized crime in Mumbai during the 1990s. The infested areas of Mumbai. With respect to Jammu and crackdown was sparked by the 1993 serial bomb blasts in Kashmir, the US Department of State estimated, for the city, allegedly orchestrated by organized crime figure example, that Indian security forces killed 1,520 alleged Dawood Ibrahim. The devastation of these blasts, which militants in 2000 and 1,082 in 1999, all in encounters. resulted in 257 fatalities, prompted the creation of an elite The report noted that many human rights monitors alleged group of 'encounter specialists', who were responsible for that a number of these encounters were fake. Amnesty gunning about 350 alleged criminals in Mumbai over the International has also expressed serious concerns over the course of the decade. The number of encounters has high number of encounter killings, particularly in slowly diminished in Mumbai since the 1990s, with State Chittisinghpura. Similarly, Kashmir Bar Association government records indicating that ninety-four gangsters President Mian Abdul Qayoom has claimed that fake were killed in 2001, forty-seven in 2002 and eight in encounters account for most of the 10,000 people that 2006. Still, approximately 600 encounter deaths are have gone missing in that region in the past twenty years. known to have occurred between 2003 and 2009. Further, Qayoom has asserted that only a few fake In short, the use of encounter killings is not new in India. The encounters have been publicized and punishment has apparent institutionalization of encounter killings as an been given only in the Ganderbal encounter.
official or unofficial form of policing has been going on for With respect to Punjab, encounter killings were prominent decades and is only becoming more entrenched at all in the counter-insurgency campaign waged by Indian levels. Findings by Human Rights Watch suggest that while security forces in the state between 1984 and 1995. mostly low-ranking police personnel including station According to Human Rights Watch, most of the estimated officers, sub-inspectors and constables carry out the majority 10,000 people killed during the counter-insurgency in of fake encounters, senior officials likely play a role in Punjab from the early 1980s to early 1990s were victims of planning or ordering encounters. Indeed, according to an fake encounters. The US Department of State, in its 1993 Uttar Pradesh sub-inspector quoted in the report, a report on human rights in India listed specific examples of successfully executed encounter killing has evolved into a possible fake encounter killings in which no legal action badge of honor for high ranking police officials.
was taken against the police personnel involved.
2.2 Encounter Killings and the Indian Media Encounter killings have also been employed in efforts by Indian police and security forces to quash the While it is difficult to definitively categorize the media's Maoist/Naxalite armed rebellion. For instance, estimates response to encounter killings, some human rights activists indicate that more than 2,000 people were killed in consider the media to be supportive or at least encounters in Andhra Pradesh between 1968 and 1999, insufficiently critical of encounters. A fundamental criticism with more than 1,500 of those deaths occurring during the directed against the media is the use of the words 1990s. A number of Naxal-linked encounter killings have 'encounter specialists' to glorify those who carry out also taken place in the neighboring state of Karnataka, encounters. According to the Asian Human Rights with allegations that a significant number of such killings Commission, the mere use of the term 'encounter happened during fake encounters by the state's Anti- specialist' bestows unwarranted glory on those Naxalite squad.
US Department of State, '2000 Human Rights Reports" India', February 23, 2001, available at http://www.state.gov/g/drl/rls/hrrpt/ 2000/sa/717.htm accessed on 02.04.2015 at 2.15 pm Human Rights Watch/Asian Physicians for Human Rights, 'Dead Silence: The Legacy of Abuses in Punjab', May 1994, pp. 16-40.
Ibid., p. 1.
US Department of State, '2003 Human Rights Reports'.
Sankaran, 'A Note to the National Human Rights Commission on Human Rights Violations in the State', para 8.
SudhaRamachandran, 'India Can't Keep a Good Don Down', Asia Times, 23 June 2007, available at http://www.atimes/South_ Asia/IF23Df01.html accessed on 02.04.2015at 3.25 pm Ramachandran, 'India Can't Keep a Good Don Down'.
Katakam, 'Fake Justice- Maharashtra'.
Sankaran, 'A Note to the National Human Rights Commission on Human Rights Violations in the State', para 13.
Human Rights Watch, 'Broken System', p. 93.
Asian Human Rights Commission, 'India: Encounter Killing and Custodial Torture'.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 A survey of thirty-eight Mumbai police officers consisting of an eyewitness to the shooting, claimed that the encounter thirty-three men and five women, of various ranks from was fake. He said that the 'men were unarmed and were sub-inspectors to senior personnel reflected and shot by police', and they looked as though they 'had not corroborated the view that the Indian media is for the most slept for several days or had taken a heavy dose of part uncritical of encounter killings. Of the thirty-eight sleeping pills'. Despite questions regarding the reliability officers interviewed, eight felt that the media of Krishna's testimony, the media response was largely unconditionally approved encounters, while the remaining skeptical of the official version, with numerous newspaper thirty felt that the media's attitude ranged from approval, if articles raising doubts about the official police recount. the encounter was 'genuine', to occasional criticism, if the One article, for example, asserted that 'the Delhi Police victim was not a 'hardcore' criminal. One of the sub- version of the Ansal Plaza encounter was full of loopholes inspectors interviewed suggested that the media's and based on questionable procedures.' response often hinged on who executed the encounter The media's reporting of these encounters, particularly in killing, with certain officials receiving consistently the Batla House encounter, demonstrates potential favorable coverage. The press has mixed reactions. They willingness and efficacy of media in challenging are against it in some cases and in favour of it in other legitimacy of encounter killings. The Batla House cases. But it depends on the officers who did it, how they encounter, occurred in September of 2008 in New Delhi's 'managed' it. There is a group of officers, if they do it Batla House area following a string of bombings in New [encounters] then there is always a positive coverage for it.
Delhi by the Indian Mujahideen. The Delhi police raided The publicity brought about by the media can have a the Batla House area of Jamia Nagar, killing two alleged significant impact on how the government and judiciary terrorists, Atif Amin and Sajid. The encounter also resulted respond to cases of encounter killings. The outcomes of in the death of police inspector Mohan Chand Sharma. several prominent encounter killings that received The Jamia Teacher's Solidarity Group disputed the significant media attention and criticism highlight the authenticity of the encounter, prompting the Delhi High important role they play. For example, the Connaught Court to launch a magisterial inquiry. The police officers Place encounter, in which members of the Delhi Police involved were vindicated in an inquiry conducted by the Crime branch shot and killed two Haryana based National Human Rights Commission, prompting the businessmen and injured another, was covered widely in NGO, Act for Harmony and Democracy to initiate yet the Indian media. Despite claims by the Delhi Police that another plea for a judicial inquiry. Their petition was the two businessmen were Uttar Pradesh based gangsters, ultimately rejected by the Supreme Court. Despite the final ten policemen involved in the shooting, including Assistant outcome, the layers of scrutiny imposed on the encounter Commissioner of Police (ACP) S.S. Rathi, were charged by both the media and NGO ensured that the case with murder, attempt to murder and criminal received a serious degree of judicial attention.
conspiracy. On October 16, 2007, all ten were convicted of murder and sentenced to life imprisonment. 2.3 Public Acceptance of Encounter Killings The Delhi High Court subsequently upheld the conviction Akin to the lacklustre criticism of encounter killings by the despite an appeal by the police. This conviction, in the face media, the public generally seems to accept encounter of widely reported police impunity, demonstrates the killings as a positive or necessary part of policing. important role media can play in the judiciary's response to Indicative of and fuelling this public acceptance, the such encounters.
positive portrayal of encounter killings in Bollywood and Another encounter killing that received significant media South Indian cinema has become increasingly common. attention was the Ansal Plaza encounter on November 3, Some movies, such as Risk, Shootout at Lokhandwala and 2002, in which two alleged Pakistani terrorists were killed AbTak 56, have focused on encounter specialists, often under circumstances that raised numerous elements of lionising them as Dirty Harry-style vigilance cops. The doubt as to the police's official version of events. While the popularity of these movies probably stems from the police claimed that they acted in self-defense, H. Krishna, general public approval of encounter killings. Notably, 'Timeline: Delhi Soot-out Case', The Times of India, October 24, 2007, available at http://timesofindia.com/home/specials/Timeline-Delhi-shoot-out-case/articlesshow/2486908.cms accessed on 02.04.2015 Indian Penal Code, 1860, Section 300.
Ibid at 307.
Ibid at 120B.
Bidwai, 'The Delhi "Encounter"'.
Swami, 'Behind the Batla House Shootout'.
Suresh Nair, 'Bollywood Catches Cop Fever', The Times of India, March 13, 2003, available at, http://timesofindia.indiatimes.com/articleshow/40112592.cms accessed on April 05, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 among the thirty-eight Mumbai police officers surveyed in bounties are often given for the killing of dacoits. While the the study described above, nearly all believed that the bounties are officially meant to reward the collection of public approved encounter killings. information about the dacoit, in practice, they are officers felt that the public support for encounter killings effectively bounties on the dacoit's head. For example, in was motivated by frustration with the ineffectiveness of the the Chambal region, where dacoit killings have been judiciary in dealing with organized crime and security relatively frequent, Sajid Farid Shapu, the police issues, a sentiment shared by the police officers superintendent of Shivpuri, stated in 2007 that when dacoit Pratap Gadaria was gunned down, they won over Rs 14,00,000 in bounty (reward money) for wiping out his The views of these officers are echoed in the media. For dreaded gang of dacoits over the previous year. Reward of example, Chaturvedi posits that even human rights groups over Rs100,000, or even comparatively small bounties of are less vocal when the victim of an encounter killing is a no more than Rs15,000 have triggered killings. Moreover, prominent organized crime figure. The article, however, some human rights activists have alleged that the police affirms that members of the public only accept encounter refuse to allow dacoits to surrender and deliberately delay killings when the victim is either involved in organized killing dacoits in order to allow the bounty to grow. crime or an alleged terrorist, choosing in other cases to Monetary rewards have also been used to catalyse the express their outrage against such killings. For example, killing of Naxals, as shown by the recent killing of Patel the death of Ranbir Singh, an innocent Ghaziabad based Sudhakar Reddy, who allegedly spearheaded Maoist student, at the hands of Dehradun police elicited a vocal activities in Karnataka and whose capture carried a reward public outcry. Moreover, public apathy or sympathy for of Rs 12 lakhs.
encounter killings has often been ruptured by the killing of a number of people of a particular community or religious Among the Indian military and security forces, the use of minority. For example, a recent encounter killing involving fake encounters to garner military medals is also two Muslim men, alleged by the police to be linked with a prevalent. While several middle-ranking Army officers bombing in New Delhi, sparked protests from members of have been caught faking encounters to gain gallantry the Muslim community. medals, higher ranking officers, such as Brigadier Suresh Rao and Colonel H.S. Kohli, have also been reprimanded 3. Factors Affecting the use of Encounter for encouraging such conduct. Indeed, this practice has allegedly been approved by certain generals who believe A number of factors have been posited as contributing the that having a high number of killings in their area of prevalence of encounter killings in India. These factors are command increases their likelihood of receiving further largely reflective of police practices, some of which promotions. It is evident that the current system, which appear to represent unofficial police policy.
rewards encounter killings without investigating them, has been instrumental in perpetuating fake encounters across Human rights observers have noted that practice of 3.2 Harassment and Intimidation rewarding police officers involved in encounter killings has spurred the use of fake encounters. Lenin Raghuvanshi of Harassment and intimidation of a victim's family members the Varanasi-based People's Vigilance Committee on and eye witnesses is a tactic often employed by police Human Rights is of the view that Government's rewarding officers in the wake of an encounter death which further of policemen or paramilitary personnel actually aggravated the situation. Such intimidation aims to deter encourages such encounter killing. the families or the witnesses from pursuing any kind of independent inquiry into the death, for the fear that the The rewards bestowed on police or security forces encounter may be termed as not fake. Human Rights involved in encounter killings can take the form of Watch has noted that there is a high potential for police monetary benefits and out-of-turn promotions. Monetary intimidation, since the registration of a First Information Belur, 'Why Do the Police Use Deadly Force?', p. 12.
Ramakrishnan, 'Political Patronage', available at http://www.frontline.in/static/html/fl2620/stories/ 20091009262002700.htm, last visited on April 05, 2015 'Kill a Dacoit, Get a Promotion' The Times of India, October 19, 2008, available at http://timesofindia.indiatimes.com/articleshow/msid-3613626,prtpage-1.cmsaccessed on April 05, 2015 Rajat Pandit, 'Brigadier in Dock for "Trophy Kills"', The Times of India, April 16, 2006.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Report (FIR) may require a visit to the very station where the Chittisinghpura on March 20, 2000, police reported that abuse occurred, or interaction with the offending officer.' It they had killed five terrorists involved in an encounter, and is likely that most police intimidation escapes media or that, during the encounter, the hut housing the alleged judicial attention, for which there are several prominent terrorists caught fire, burning the bodies beyond examples in recent years.
recognition. While locals claimed to positively identify the bodies and asserted that they were innocent villagers who One such incident occurred after Raj Narain, a physically had been abducted the day before the encounter, DNA challenged farmer, was killed in a fake police encounter in tests initially proved inconclusive. These were later which the police claimed that Raj was an active member of discovered to have been the result of tampering.
the Ram Kumar gang. Raj Narain's father Buddha Singh and his family pursued the case for fifteen years and, In a similar manner, a more recent investigation by Tehelka during that time, suffered intense harassment and journalists into the Sameer Khan encounter killing has intimidation. The harassment extended beyond the victim's revealed that the manipulation of evidence was officially family, with Buddha Singh reporting that 'the police sanctioned from as far up as the Chief Minister's office.
wouldn't let people leave the village without checks, so that The fabrication of evidence appears to be a regular no one could take documents or letters or any paperwork feature of fake encounter killings. Moreover, it reflects a related to the encounter.' Moreover, the police pressured wider culture of corruption that extends to even high- other members of the community to try to convince ranking officers and forensic scientists. Investigations that Buddha Singh to drop his case. On September 12, 2007, assume a higher level of rigour are critical in effectively fifteen years after the encounter were the police personnel addressing the problem.
involved in the encounter sentenced to life imprisonment.
3.4 Internal Investigation and the Judicial 3.3 Fabrication of Evidence The fabrication or manipulation of evidence has served to legitimize fake encounter killings that, for the most part, Police and security force impunity, symptomatic of a lack of are not thoroughly investigated. The Connaught Place internal investigation and failure of judicial system are encounter in 1997 provides a prominent example, with all significant factors behind the prevalence of encounter nine policemen involved and ACP S.S. Rathi found guilty, killings. Human Rights Watch has found that of the inter alia, of fabricating false evidence under Section 193 282,384 complaints filed against the police between of the Indian Penal Code, 1860, (IPC). The police 2003 and 2007, only 28 per cent resulted in a police personnel involved were found to have planned to plant department, magisterial, or judicial inquiry. Moreover, of evidence in a car after the shooting and arrived at the the 8,736 police officers prosecuted during this period, encounter location with a pistol and bullets to use as only 1,070 completed trials and fewer than 270 were evidence that they had shot the suspects in retaliation. convicted. Indeed, even where the judiciary does Thus, encounter also highlights the manipulation of intervene, there is often disconnect between the court evidence by forensic scientists employed by the police. order and the ensuing police response. For example, when Roop Singh, the former Principal Scientific officer at the the Supreme Court mandated in 2006 that all states Central Forensic Science Laboratory, was found to have create Police Complaints Authorities (PCAs) to handle knowingly and willingly given false testimony and to have complaints against the police, only a small fraction of the fabricated false evidence to support his statement and states did so, and even those failed to comply with a exonerate the police officers involved, introducing and number of the procedural requirements mandated by the exhibiting a doctored bullet head. Singh has also been accused of tampering with evidence in the Jessica Lall While the precise number of complaints relating to murder case. Such tampering raises the possibility that encounter killings is unknown, human rights organizations forensic scientists like Roop Singh may indeed be broadly have recorded numerous cases in which an alleged fake complicit in the fabrication of evidence intended to encounter has not been investigated or has been legitimize fake encounters.
inadequately investigated. This failure to investigate The Pathribal encounter similarly illustrates the use of such occurs despite the recommendation of the National methods, as well as the lack of accountability of those Human Rights Commission that all police encounter responsible. Five days after the massacre of 36 Sikhs in deaths be subjected to a magisterial inquiry.
Indian Penal Code, Section 193.
Ketan and Bawej, 'Fake Killings: Unwritten State Policy.' Human Rights Watch, 'Broken System: Dysfunction, Abuse and Impunity in the Indian Police', p. 100.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 This absence of internal or external investigation is some other independent investigating agency, such as the compounded by the difficulty families of encounter victims experience in accessing justice. The dependents of victims First information Reports (FIRs): All complaints levelled of encounters are generally disproportionately poor and against the police officers for the 'commission of a criminal consequently ill-poised to receive legal assistance. Their act on their part' must be followed by an FIR 'registered predicament renders them even more vulnerable to police under appropriate sections of the IPC [Indian Penal intimidation aimed at suppressing a potential Code].' The Commission states that 'such [a] case shall invariably be investigated by CBI or COD.' As Human Rights Watch has pointed out, disciplinary Mandatory Investigations/Magisterial Inquiries: In case of measures typically have not followed internal a complaint by the victim 'A magisterial inquiry must be investigations conducted by the Indian police. Additional held in all cases of death which occur in the course of safeguards and layers of measures are necessary to shore police action. The next of kin of the deceased must up both internal and external accountability mechanisms. invariably be associated in such an inquiry.' These measures should include reforms that are designed to protect police officers who wish to report instances of Prosecution and Punishment of offending officers: 'Prompt abuse, and make courts more accessible to the families of prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/police investigation.' 4. Legal Framework Compensation for Dependents of the Deceased: This The current legislative and judicial framework has not yet procedural modification stipulates that dependents of the done enough to prevent the use of encounter killings or deceased may be entitled to compensation, based 'upon hold accountable those who perpetrate them. This section the facts and circumstances of each case.' looks at three principal prongs of the Indian domestic legal framework related to encounter killings: (i) the guidelines Rewards: 'No out-of-turn promotion or instant gallantry issued by the National Human Rights Commission rewards' are to be bestowed on officers 'soon after the (NHRC), most recently in December of 2003; (ii) the occurrence' of an encounter death. The Commission provisions set out in the Indian Penal Code and the Code maintains that 'it must be ensured that such rewards are of Criminal Procedure (Cr.PC); and (iii) the repository of given/recommended only when the gallantry of the judicial precedent on the issue.
concerned officer is established beyond doubt.' 4.1 The Guidelines issued by the National Reporting to the Commission: The director general of Human Rights Commission (NHRC) police of the concerned state must submit 'a six-monthly statement of all cases of deaths in police action in the State' On December 2, 2003, the National Human Rights to the Commission, on a biannual basis. For every case, Commission (NHRC) issued a series of revised guidelines the pertinent details required include: the date and place on the procedure to be followed by State Governments in of the occurrence, the police station and district, the all cases of deaths in the course of police action. circumstances surrounding the death(s) in each encounter, According to justice A.S. Anand, the then Chairperson of a brief summary of the facts surrounding the case, the the NHRC, the prior set of guidelines issued in 1997 had criminal case number, the investigating agency and the been adhered to unsatisfactorily, prompting the findings of the investigation or magisterial inquiry.
Commission to issue a new menu of guidelines with a heightened degree of specificity. The elements of this The revised guidelines described here, if followed, could revised procedural rubric include: be a progressive step towards ending impunity for encounter killings. They require the police to register a Documentation: All known police encounters must be complaint (and if alleged criminal activity, also an FIR), documented. When the police officer-in-charge of a conduct an impartial investigation using police from a Police Station receives information about the deaths in an different station, and if found to be a fake or otherwise an encounter between the police party and others, he shall illegal encounter, seek prosecution. The guidelines also enter that information in the appropriate register.
demand compensation for encounter killings and a limit Referrals: To avoid a conflict of interest, police stations on the potential rewards for such killings. If implemented, should not handle cases that concern officers working in these requirements would not only remove at least some of the same station. These cases should instead be referred to the incentive for encounter killings, for example, impunity Human Rights Watch, 'Broken System', p. 100.
National Human Rights Commission, 'Revised Guidelines.' "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 and rewards, but review of such deaths would create a The extenuating criteria that need to be met for this strong disincentive. Unfortunately, these guidelines are not exception to hold are: (i) The offender acts 'in good faith', mandatory and are rarely followed.
(ii) believing that his conduct is both 'lawful and necessary for the due discharge of his duty' and (iii) The offender 4.2 The Indian Penal Code, 1860 (IPC) and bears no 'ill-will' toward the victim. These criteria are open the Code of Criminal Procedure, 1973 to argumentative manipulation where encounter killings are concerned.
Section 300 of the Indian Penal Code (IPC) and Sections Similarly, under the Code of Criminal Procedure (Cr.PC), 149 and 197 of the Code of Criminal Procedure (Cr.PC) Section 149 is problematically broad. 'Every police officer', offer public servants and police officers a layer of extra the provision reads, 'may interpose for the purpose of protection for those who perpetrate encounter killings. preventing, and shall, to the best of his ability, prevent, the While the IPC spells out the circumstances under which commission of any cognizable offence.' While providing 'culpable homicide' may not be construed as 'murder', the such a broad power to prevent a 'cognizable offence', the Cr.PC-Section 197 in particular sets up an extra hurdle to provision does not delimit the proper scope of such police be surmounted before public servants can be prosecuted.
activity or impose any discernable check on an officer's preventive measures.
Section 300 of the IPC establishes the offence of 'culpable homicide and the circumstances under which such an act Section 197 of the Cr.PC goes even further, exempting may constitute 'murder'. Exception 2 of the provision police officers and other public servants from criminal concerns the right of self-defense, a defense often invoked prosecution unless sanctioned by the government. The by police officers complicit in encounter killings. The provision reads as follows: 'When any person who is or was exception reads as follows: a Judge or Magistrate or a public servant not removable from his office… is accused of any offence alleged to have 'Culpable homicide is not murder if the offender, in the been committed by him while acting or purporting to act in exercise in good faith of the rights of private defense of the discharge of his official duty no court shall take person or property, exceeds the power given to him by law cognizance of such offence except with the previous and causes the death of the person against whom he is sanction… of the State Government'. exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary This provision effectively presents the dependents of a for the purpose of such defense'. deceased victim with an extra procedural hurdle, preventing them from obtaining redress without the official This definition provides three requirements that must be sanction of the government. This obstacle would appear met for the exception to hold: (i) The offender must have particularly difficult to surmount in cases in which exercised his right of self-defense in 'good faith', (ii) the government officials have an interest in shielding members offence must not have been premeditated and (iii) the of the local police stations from accountability, namely, offender's response needs to be proportionate to the risk when their successful prosecution would undermine the faced and cannot do 'more harm than is necessary' for the perceived character or competence of the State- purposes of self-defense.
Exception 3 of Section 300 directly concerns public servants and police officers in discharge of their duty. This 4.3 Judicial Precedent exception which is particularly open to abuse, reads as The judiciary has yet to take effective action against the prevalence of encounter killings. Recently, the Andhra Culpable homicide is not murder if the offender, being a Pradesh High Court attempted to respond to the public servant or aiding a public servant acting for the dangerous nature of extra-judicial killings.
advancement of public justice, exceeds the powers given In Andhra Pradesh Civil Liberties Committee vs. Union of to him by law, and causes death by doing an act which he, India, which concerned an alleged encounter between in good faith, believes to be lawful and necessary for the police personnel and eight Maoist Naxalites at Nallamala due discharge of his duty as such public servant and Forest, the Andhra Pradesh High Court issued a significant without ill-will towards the person whose death is caused. verdict that reaffirmed key components of the NHRC's South Asia Human Rights Documentation Centre, 'India: Extra-Judicial Killings under the Spotlight.' Indian Penal Code, Section 300, Exception 2.
Code of Criminal Procedure (Cr.PC) 1973, Section 149.
AIR 2007 (5) ALT 639 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 guidelines on extra-judicial killings noted above.
on the High Court's ruling, but also in support of the decision to suppress a judicial inquiry into the Batla House The High Court established three key elements of Encounter later in the year. In Batla House Encounter procedure that must be followed in the wake of an Case dismissing the appeal Chief Justice K.G. encounter death: (i) If a complaint is filed against a police Balakrishnan observed, 'There are thousands of police officer, police personnel are obligated to register an FIR officials who are being killed. It will adversely affect the and names of the officers allegedly involved in the morale of the police.' encounter need not be divulged in the report, (ii) after an FIR is filed, an investigation must be initiated, and the Thus, despite the positive judgment articulated by the investigation should yield one of three conclusions: that no Andhra Pradesh High Court, the Supreme Court's initial killing took place, or that the offending officer was stay of the High Court judgment and the Court's track justifiably exercising his right of self defense, or that the record regarding deference to the police provides little killing was inexcusable and illegal, and (iii) if unconvinced confidence that the Supreme Court will uphold the by the investigative report specifically, that the offending decision or otherwise provide effective safeguards against officer was legitimately exercising his right of self-defense- encounter killings.
-the Judicial Magistrate tasked with the case is empowered to take cognizance of the case under Section 190 of the Code of Criminal Procedure. If the Supreme Court The longstanding practice of encounter killings in India upholds the High Court's ruling it could set a clear and marks a clear violation of international law, fundamental substantive precedent on the proper handling of extra- rights and the most basic conceptions of justice. Yet the judicial killings. However, the Supreme Court is yet to hear overarching emphasis in public debate on security, coupled with the failure of proper investigative forces and In response to a petition filed by the Andhra Pradesh Police judicial functioning to efficiently and justly implement an Association, the Supreme Court issued an ex-parte stay on appropriate criminal justice system has left the legislature, the High Court's ruling in March 2009, citing police the judiciary, security forces, the media and the general morale and a possible surge in Naxalite activity.
public often acquiescing to, if not promoting the use of fake encounters. It is submitted that the Supreme Court Unfortunately, the Supreme Court's decision to impose a must hear and conclude the 2009 judgment of the Andhra stay on the High Court's ruling is not an aberration. The Pradesh High Court. Intensive judicial scrutiny and Court has recently demonstrated a pronounced interest in investigation must take place in all encounter killings. the idea of preserving police morale. This rationale was Police, army and other security forces must effectively offered not only in defense of the decision to impose a stay People's Union for Democratic Rights, '"Encounter Killings and the Question of Justice": Two Days of Protest in Delhi', 3-4 Sept. 2009, available at http://www.Pudr.org/index.php?option=com_content&task=view&id=187 &Itemid=60 accessed on April 04, 2015 'Batla House Encounter', The Times of India.
http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/plea-for-probe-dismissed/article172954.ece last visited on May 23, 2015.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Justiciable Right to Food Security in India: A Critique Mr. Balwinder Singh* Improving food security is an issue of considerable importance for a developing country like India where millions of people suffer from hunger and malnutrition. It is now widely recognised that food security is not confined only to production, availability and demand for food. Ultimately, the key question is that of the ability of the people to access food and utilize it effectively at all times, to lead a healthy life. The access to food can be maintained by providing the people the legal right to food. The right to food is operational in India on the basis of India's Constitution and of her obligations under International human rights law. Under these International obligations a framework law has been developed and brought into force in India in the year 2013. No doubt through various policies and programs the government is trying to be food secure at household level. Regardless of these measures, food insecurity is a gigantic problem in India. Moreover the legal framework and the means of producing sufficient food does not imply that food is actually secured for everyone, what it requires is the political and societal will of various stakeholders to overcome the discriminatory situation in order to give the right to food a real meaning. Key Words: Access, Availability, Food security, Legal framework, Policies, Programs. "Earth provides enough to satisfy every man's need, but not every man's greed" all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their Food security is a condition related to the ongoing dietary needs and food preferences for an active and availability and accessibility of food. Concerns over food healthy life." Individuals who are food secure do not live in security have existed throughout history. There are hunger or fear of starvation. Food security incorporates a evidences of granaries being in use over 10,000 years measure of resilience to future disruption or unavailability ago with central authorities in civilizations (including of critical food supply due to various risk factors including Ancient China and Ancient Egypt) known to release food droughts, shipping disruptions, fuel shortages, economic from storage in times of famine. Yet it was only in the year instability, and wars. Food insecurity, on the other hand, 1974 that the term 'food security' was invented as a formal according to the United States Department of Agriculture concept in the World Food Conference. Originally, food (USDA) is a situation of "limited or uncertain availability of security was understood to apply at the national level, with nutritionally adequate and safe foods or limited or a state of being food secure when there was sufficient food uncertain ability to acquire acceptable foods in socially to "sustain a steady expansion of food consumption and to acceptable ways." In the years 2011-2013, an estimated offset fluctuations in production and prices". A new 842 million people were suffering from chronic hunger. definition emerged at the World Food Summit (1996), this The Food and Agriculture Organization (FAO) identified time with the emphasis being on individuals enjoying food the four pillars of food security as availability, access, security, rather than the nation. According to the Food and utilization, and stability.
Agriculture Organization (FAO), food security "exists when Ph.D. Scholar, Department of Law, University of Jammu, Jammu FAO, World Food Summit: Rome Declaration on World Food Security and World Food Summit Plan of Action (Novs.13–17, 1996), available at http://www.fao.org/docrep/003/W3613E/W3613E00.htm. (Visited on March 31, 2014). The right to food and the right to be free from hunger, and incorporating "free" and "freedom" several times throughout the declaration's discussion of the right to food. One of the major obstacles to the realization of the right to food is the distorted and ideologically informed assumption that if the hungry have the right to food then someone must have the obligation to provide that food.
Food and Agriculture Organisation, Food Security: Policy Brief 2 (FAO Agricultural and Development Economics Division, Rome, 2006).
Gary Bickel, Mark Nord et. al.,"Guide to Measuring Household Food Security," USDA 21 (2000). Food and Agriculture Organisation, The State of Food Insecurity in the World 2013 26 (FAO, Rome, 2013) According to the United Nations Food and Agriculture Organization (FAO), the "average minimum energy requirement per person is 1800 kcal per day." Declaration of the World Food Summit on Food Security 16-18 November 2009.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 The Special Rapporteur on the right to food defines food se- Government stocks. The court further held that the poor, curity as a corollary of the right to food. The right to food is the destitute and the weaker sections of the society must a human right recognised under international law which not suffer from hunger and starvation and the prevention protects the rights of all human beings to feed themselves of the same was one of the prime responsibilities of the in dignity, either by producing their food or by purchasing government whether Central or State. Further it was it. The modern human rights framework for a specific right observed that how this was to be ensured would be a essentially consists of a legal framework in a country that matter of policy which was best left to the Government.
establishes something as a right, including an effective procedure for enforcing the right, a process for Indian Government has time and again realised that, in adjudicating individual rights cases (which can involve order to achieve food security and right to food, the poor different interpretations of the legal framework), and should have sufficient means to purchase it. Poor people resources provided to address the outcome of rights cannot afford to purchase the food they need at market decisions. The right to food therefore requires States to prices and therefore, social protection programs are provide an enabling environment in which people can use needed. Adequate purchasing power for the poor to buy their full potential to produce or procure adequate food food can be ensured in two ways. One is to have an for themselves and their families. The right to food creates employment intensive pattern of growth which can provide a human rights obligation on the Nation State and cannot remunerative work to poor and enhance their power to be restricted to matter of policy or an inspirational goal. purchase food. The other is to increase incomes and The recent years have witnessed increased interest in the subsidize food through social protection programs. adoption of framework laws on the right to food. Such laws are often known as food security laws rather than right to 2.1 Production of Different Food Crops in food but the effect is similar, as long as the right to food is clearly spelled out. The total production of different crops during the last more 2. Food Security Scenario in India than 60 years is presented in Table 1, which shows that the positive impact of Green revolution continued for over 30 As far as Right to food in India is concerned, some of the years till the 1990s. In the 1990s, the growth in the worst violation of the right to food can be seen in India agricultural sector started facing stagnancy. The increase today. India is suffering from alarming hunger and is home during the first 30 years of Green Revolution was mainly to about 217 million undernourished persons. The due to increase in the area under crop production and Supreme Court in People Union for Civil Liberties vs. Union introduction of improved varieties with recommended of India & Ors popularly known as the right to food case, cultivation practices. The increase in food production recognized the right to food under the right to life during 1990 to 2012 can be attributed to improved stipulated in Article 21 of the Indian Constitution, and efficiency and increased use of inputs, particularly Article 47, a Directive Principle of State Policy which agrochemicals which also enhanced the cost of imposes a duty on the State on raising the level of nutrition. production. India has the capacity to achieve food security The court noted the paradox that plenty of food was by promoting food production nationally. However, available in granaries, but that the poor were still starving. others, especially poor food deficit countries, are not well The petition filed by NGO assumed the special gifted in terms of resources, institutions and technology significance not only because it brought up the issue of and will always need to import food, unless new research starvation deaths before the Supreme Court for the third findings and technology enables them to mobilize their time in two decades, but also because it brought to the fore resources to achieve food security in the long run.
starvation on the face of surplus food grains in the The Universal Declaration of Human Rights, 1948 asserts in Article 25(1) that "everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food; and International Covenant on Economic, Social and Cultural Rights namely Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1966 says that "The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing" and also recognizes "The fundamental right of everyone to be free from hunger." FAO Special Report: The Right to Food is a Basic Human Right (Feb. 8, 2009), available at http://www.worldhunger.org/articles/ global/foodashumrgt/special.htm. (Visited on Feb 20, 2014) United Nations General Assembly, Report of the Special Rapporteur on the Right to Food (E/CN.4/2003/54) Geneva (2003).
FAO, Hunger Report-State of food Insecurity in the World, 8 (Food and Agriculture Organization, Rome, 2011).
2004 (12) SCC 104 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Table 1: Production of Different Food Crops in India (In million tonnes)
Source: State of Indian Agriculture 2012-2013 and Department of Agriculture & Cooperation, GOI, Ministry of Agriculture, Annual Report 2014-15 2.2 Net Availability of Food Grains Per Capita year 1951, now Targeted Public Distributed System from 1997, Antodaya Anna Yojana in year 2000, Annapurna Yojana in year 1999), Feeding Entitlement Programs (Mid Table 2 illustrates the net availability of food grains per Day Meal Scheme in year 2007, Integrated Child capita per day in India from 1951 to 2013. The per capita Development Services Schemes in year 1975, National net availability of food grains was 394.9 grams per day in Food Security Mission in year 2007, Applied Nutritional 1951, 510.1 grams per day in 1991, 462.9 grams per Programme in year 1973), and Employment Programs day in 2011 and 449.9 grams in 2012. Similar trend can (National Rural Employment Guarantee Scheme which be seen from the table in case of rice and wheat. Whereas has now been changed into Mahatma Gandhi National pulses, gram, cereals and other cereals shown the Rural Employment Guarantee Act, 2005, Sampoorna declining trends for the same periods. Thus, it can be seen Grameen Rozgar Yojana in 1999) and many social that Post liberalization period in India witnessed a decline security programs but despite that hunger, malnutrition in the per capita net availability of cereals and pulses.
and food insecurity continue to be high. Economic survey It is irony that at present India has the largest programs: of year 2013 has called for an urgent attention to efficient Food Subsidy Programs (Public Distribution System from food stocks management, timely offloading of stocks and a stable and predictable trade policy. A recent analysis Table 2: Net Availability of Food Grain Per-Capita Per Day in India (In grams)
Food grains Average (grams per capita per day) Source: Agricultural statistics at a glance 2014 as on March 6, 2014 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 showed that on an average the costs of maintaining buffer Centre and States to implement the very object of the Act stocks of rice and wheat are higher than procurement costs and a grievance redressal mechanism to address non- in domestic or international markets. So, the need to hold delivery of entitlements. Though the motive behind stocks has a fiscal cost. Heavy input subsidies and National Food Security Act is very noble, but it seems technological change coupled with farm price support difficult for the government to implement this Act without policies have led to heavy accumulation of food grain overcoming the governance issues and challenges stocks with the government and the internal carry-over prevailing in the system.
costs have increased, while at the same time the hard core Chapter II of the Act makes provisions for the food security. poor continue to suffer from food insecurity.
Section 3 provides a right to receive food grains at 3. Law Relating to Food Security in India subsidised prices by persons belonging to eligible households under Targeted Public Distribution System. The National Food Security Act, 2013 extends to the whole The legal entitlement to receive food grains by persons will of India and makes right to food a legal entitlement. In the give them the constitutional rights to minimum food current scenario and given the way poverty is measured, security. After this landmark legislation, the State on the this law will benefit approximately 800 million people other hand, is under legal obligation to ensure the which are about 67 percent of India's population. The availability of entitled grains to eligible persons. The Act preamble of the Act clearly states that it is an Act to provide also makes special provisions for pregnant women and for food and nutritional security in human cycle approach, lactating mothers and Nutritional support to children. by ensuring access to adequate quantity of quality food at Unlike the previous schemes of the Government, the affordable price to people to live a life with dignity and for National Food Security Act, 2013 adopts the life cycle matters connected therewith or incidental thereto. The approach, in the sense; it is an integrated effort to address National Food Security Act gives statutory backing to the the food requirement of every phase of human life cycle Targeted Public Distribution System (TPDS). This legislation starting from the infancy to the adult and the parenthood. marks a shift in the right to food as a legal right rather than The take home rations and maternity benefits to pregnant a general entitlement. The Act classifies the population and lactating mothers is a welcome initiative considering into three categories: excluded (i.e., no entitlement), the country's poor record in the infant mortality rate and priority (entitlement), and Antyodaya Anna Yojana (AAY; the maternal mortality rate. In order to address the higher entitlement). It contemplates responsibilities for the problem of malnutrition among children, any child below Tilak Raj, "Food Security Scenario in India: New Challenges and Policies," 2(2) HJCR 454 (July- December 2013).
12 The National Food Security Act, 2013, Section 3 (1) Every person belonging to priority households, identified under sub-section (1) of section 10, shall be entitled to receive five kilograms of food grains per person per month at subsidised prices specified in Schedule I from the State Government under the Targeted Public Distribution System: Provided that the households covered under Antyodaya Anna Yojana shall, to such extent as may be specified by the Central Government for each State in the said scheme, be entitled to thirty-five kilograms of food grains per household per month at the prices specified in Schedule I: Provided further that if annual allocation of food grains to any State under the Act is less than the average annual off take of food grains for last three years under normal Targeted Public Distribution System, the same shall be protected at prices as may be determined by the Central Government and the State shall be allocated food grains as specified in Schedule IVS. Explanation— For the purpose of this section, the "Antyodaya Anna Yojana" means, the scheme by the said name launched by the Central Government on the 25th day of December, 2000; and as modified from time to time. (2) The entitlements of the persons belonging to the eligible households referred to in sub-section (1) at subsidised prices shall extend up to seventy-five per cent of the rural population and up to fifty per cent of the urban population. (3) Subject to sub-section (1), the State Government may provide to the persons belonging to eligible households, wheat flour in lieu of the entitled quantity of food grains in accordance with such guidelines as may be specified by the Central Government.
Id. Section 4-Nutritional support to pregnant women and lactating mothers-Subject to such schemes as may be framed by the Central Government, every pregnant woman and lactating mother shall be entitled to— (a) meal, free of charge, during pregnancy and six months after the child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and (b) maternity benefit of not less than rupees six thousand, in such installments as may be prescribed by the Central Government: Provided that all pregnant women and lactating mothers in regular employment with the Central Government or State Governments or Public Sector Undertakings or those who are in receipt of similar benefits under any law for the time being in force shall not be entitled to benefits specified in clause (b). Id. Section 5-Nutritional support to children (1) Subject to the provisions contained in clause (b), every child up to the age of fourteen years shall have the following entitlements for his nutritional needs, namely:— (a) in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II: Provided that for children below the age of six months, exclusive breast feeding shall be promoted; (b) in the case of children, up to class VIII or within the age group of six to fourteen years, whichever is applicable, one mid-day meal, free of charge, everyday, except on school holidays, in all schools run by local bodies, Government and Government aided schools, so as to meet the nutritional standards specified in Schedule II. (2) Every school, referred to in clause (b) of sub-section (1), and anganwadi shall have facilities for cooking meals, drinking water and sanitation: Provided that in urban areas facilities of centralized kitchens for cooking meals may be used, wherever required, as per the guidelines issued by the Central Government.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 the age of 14, including those out-of-schools, may food grains to the entitled persons at the prices specified in approach any feeding facility such as anganwadi centre, Schedule I. For efficient operations of the Targeted Public school mid-day meals centres for midday meal. The Act Distribution System, every State Government shall create ensures the access to food grains through doorstep and maintain scientific storage facilities at the State, delivery of food grains by reforming Targeted Public District and Block levels, being sufficient to accommodate Distribution System. The Act provides for Central and State food grains required under the Targeted Public Distribution Governments to endeavour to progressively undertake System and other food based welfare schemes and necessary reforms in the Targeted Public Distribution suitably strengthen the capacities of their Food and Civil System in consonance with the role envisaged for them in Supplies Corporations and other designated agencies. this Act. Some of the reforms mentioned in the Act include, All Targeted Public Distribution System related records doorstep delivery of food grains to the Targeted Public shall be placed in the public domain and kept open for Distribution System outlets, application of information and inspection to the public, in such manner as may be communication technology tools for end-to-end prescribed by the State Government. Every local authority, computerization, transparency in maintenance of records or any other authority or body, as may be authorized by the of transactions at all levels and to prevent diversion, State Government, shall conduct or cause to be leveraging ''adhaar", progressive preference in allotment conducted, periodic social audits on the functioning of fair of Fair Price Shops, diversification of commodities price shops, Targeted Public Distribution System and other distributed, introducing schemes such as cash transfer, welfare schemes, and cause to publicize its findings and food coupons to the targeted beneficiaries in order to take necessary action, in such manner as may be ensure their food grain entitlements, provisions for food prescribed by the State Government. The social audit can security allowance by cash transfer in case of non-supply also be given to independent agencies having experience in conducting such audits. To ensure transparency and Chapter VI of the Act provides for women empowerment proper functioning of the Targeted Public Distribution and thus in a major shift from the past, the eldest woman in System and accountability of the functionaries in such a every eligible household who is not less than eighteen system, every State Government shall set up Vigilance years of age, shall be head of the household for the Committees who can regularly supervise the purpose of issue of ration cards. This is done with a implementation of all schemes under this Act. Chapter XII rationale of helping the feeding hands to have first right to provides for the food security for people living in remote, food grains rather than male member who on many hilly and tribal areas, and for that end, steps would be occasions is presumed to divert the grains to black market taken to further advance food and nutritional security. Last or liquor shops in villages. Chapter VII of the Act provides but not the least, the Central Government, or as the case for the grievance redressal Mechanism. Every state may be, the State Government, shall be liable for a claim government shall put in place an internal grievance by any person entitled under this Act, except in the case of redressal mechanism which may include call centers, help war, flood, drought, fire, cyclone or earthquake affecting lines, designation of nodal officers, or such other the regular supply of food grains or meals to such person mechanism as may be prescribed. The District Grievance under this Act.
Redressal Officer will look after and address the Thus, this Act is a positive step towards providing legal grievances of the public at every district. The State Food protection to right to food and making it an enforceable Commission will be established under the Act to oversee right. There had been some criticism given the wide scope the effective implementation of the Act. According to the of this Act and previous bad experiences in poor provisions of the Act, the State Government shall be implementation of different government schemes. responsible for implementation and monitoring of the Questions have been raised regarding the possibilities of schemes of various Ministries and Departments of the making the scheme universal instead of targeting a certain Central Government in accordance with guidelines issued percentage of the population, since the definition and by the Central Government for each scheme, and their measurement of poverty are disputed and have changed own schemes, for ensuring food security to the targeted many people's status overnight, on paper. The current Act beneficiaries in their State. Moreover, under the Targeted has also been criticized by several economists and media Public Distribution System, it shall be the duty of the State professionals on the grounds that it would be very difficult Government to take delivery of food grains from the for the government to provide sufficient finances for the designated depots of the Central Government in the State, implementation of this Act as food grain requirement for at the prices specified in Schedule I, organise intra-State implementing this Act is 612.3 lakhs tons and total Food allocations for delivery of the allocated food grains Subsidy will reach to Rs.124747 crores. There are several through their authorized agencies at the door-step of each challenges this Act will have to face in order to feed such a fair price shop; and ensure actual delivery or supply of the large percentage of the population. Effective "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 implementation will also depend on pro-activeness of the annexure specifying the quality of each food grain States. However, if well implemented, its impact on poverty procured under the PDS. However, a mention should have will be vast and visible.
been made of the need to adhere to the minimum standards, which would be FAQ standards under the 4. Critical Appraisal of the Food Security Law present scheme. A related schedule drawing upon the The Act establishes a durable food security system leading guidelines for FAQ could also have been included, but to eradication of hunger and malnutrition and it has been instead, the present Act leaves this issue at the mercy of asserted that this Act will be the first step in ensuring a seasonal circulars.
hunger free India. The provisions concerning justiciability The biggest challenge for the food security in India is of certain entitlements relating to expectant mothers, poverty. For identification of the poor class of the society, children below six years, mid- day meals for school poverty line is the threshold. Based on the poverty line, children up to class 8 and persons living in starvation Government of India declares the poverty ratio at some appear to be unique. The provisions relating to interval of time. No doubt that it is difficult to survey entire enforceable duties, accountability and transparency and population frequently, but the poverty line can be related the mechanism put in for redressal of grievances in the with inflation data declared by RBI so that every year, new National Food Security Act, 2013 are in a positive priority households can be included. Poverty ratio by the direction for providing food security to people.
year 2011-12 was 21.9 percent and number of poor Nevertheless there are certain shortcomings in the 2013 according to this ratio was 269.30 million but when these Act. The Act proposes to provide food and nutritional figures were compared with the world statistics, it was security to people. However, the Act falls short in keeping altogether a different picture. As per the Government of promise with its own provision as the foods covered are India, 21.90 per cent population was poor whereas the only rice and wheat. To meet nutritional security, the Act World Bank estimates poverty ratio at 25.93 per cent, should focus on complete dietary requirement to include which was higher by 4.03 per cent as compared to the pulses, vegetables, milk, meat etc. in the food basket. national poverty line. This shows the vast difference One of the central concerns with regard to procurement of between these statistics. As per World Bank, the number of food grains has been the quality of the grains procured. In poor people should be 311.11 million instead to 269.30 spite of the mandate under the Revised Model Citizen's million (here the Government database shows the gap of Charter, the Supreme Court directive to ensure Fair 41.81 million number of poor). The Section 3(2) of the Average Quality (FAQ) while implementing mid-day meal National Food Security Act, 2013 claims that the Act will schemes and the Food Corporation of India's own cover 75 per cent of the rural population and 50 per cent commitment to these standards, instances of poor quality of the urban population which is two third population (67 grains being distributed are plenty. While poor quality per cent) of India. As per national poverty line 22 % may not always be a result of not adhering to quality population and as per international poverty line 26 per norms, and may often be a result of inadequate storage cent population is poor. Here a question arises as to why facilities, instances of non-adherence to quality norms at government has proposed to cover unnecessary extra the procurement stage are not few. The reason for this population of 41% cent (67 % – 26 %). Moreover the predicament is the lack of clarity caused by the presence of National Food Security Act's provision of giving too many multiple government orders and circulars enumerating the grains at too cheap rate to too many people is criticized by quality standards. It is disappointing that the Act does not many. It is argued that it will bounce back in the long run as make any attempt to harmonise these standards. The it develops 'dependency syndrome' among the people and preamble to the Act states that its aim is to provide for food they lose motivation to work hard to earn their living.
and nutritional security by ensuring access to adequate Moreover the Act's framework for the public distribution quantity of quality food. But the Act falls short of system rests on a complicated division of the population addressing what constitutes 'quality food' and how it will be into priority household and the non-priority household. ensured. It does not prescribe any minimum standard, nor There is no clarity as to how the priority households have to does it equate the required standards to the FAQ be identified. The criterion provided by the Central standards. It is not/now suggested that there should be an Dr. K. R. Aithal, "Towards Justiciable Right to Food," in Dr. Bimal. N. Patel and Dr. Ranita Nagar (eds.), Food Security Law-Interdisciplinary Perspectives 29 (2014).
Editorial, "Brimming Granaries and Begging Bowls," The Hindu, (June 17, 2001).
Editorial, "PDS Rot," The Tribune, (July 27, 2011).
Balu G. Nair, "The National Food Security Bill, 2011: An Opportunity Lost?," 3 JILS 308 (2012).
Supra note 12.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Government appears to be inadequate and not perfect The implementation of this Act and supply of food grains to and therefore many eligible householders may be out of poor is to be done by the existing Public Distribution safety net. As per Section 10, of the Act, the State System. The analysis which was based on the ration card government is responsible to identify the priority data of December 2013 and poverty line clearly reveals household. For this purpose the State government can that, there was a leakage of 24 per cent in the Public prepare guidelines. As per this section, the targeted Distribution System whereas as according to the population is to be identified by the State government and Commission for Agricultural Costs and Prices, Department Section 9 of the Act claims to cover 67 % of the of Agriculture & Cooperation, Ministry of Agriculture, population. When Central government is not having the Government of India, New Delhi, December 2012 there data of targeted priority households, how can they claim to is a leakage of 40.4 per cent in the Public Distribution give benefit to 67 % of the population? It is clear that System. Though one fourth of the money is not reaching to Central Government has just mentioned the targeted targeted beneficiaries under Public Distribution System, population without any proper calculation. As per still the Act aims at granting differential legal entitlement of planning commission, 22 % population of India is poor, food grains to nearly 800 million people through Targeted whereas ration card data reveals that there are almost 46 Public Distribution System network only. Instead of % who are falling either in BPL category or in AAY increasing food subsidy the government should have category. This clearly indicates that either the poverty line is reduced leakage to achieve better results. not properly defined or the ration card holders are taking The Food Corporation of India has the responsibility of undue advantage of the scheme. This clearly reveals that ensuring proper storage of the grains after procurement. around 24 % of the beneficiaries are fake. However, there are major issues concerned with the Lack of proper scientific storage facilities and the resultant storage capacity and the way the food grains are stored by rotting of food grains has been the most widely debated the Food Corporation of India. At present, the Food topic in the area of TPDS during the last few years. The Corporation of India godowns has food grain stocks more present Act has tried to remedy this situation by including than twice the storage capacity available within them. This provisions for the creation of scientific storage facilities at is one major reason causing their wastage by reason of various levels. However, the provisions seem to be nothing fungus, rodents and subjecting for pilferage. The quantum more than a vision statement in the light of losses suffered of food grains being wasted at Food Corporation of India due to unscientific storage facilities, and the need for because of improper storage and unscientific establishment of these facilities in a time bound manner management is a major challenge in making the National has been ignored. There should have been unambiguous Food Security Act successful. Computerization of all Fair guidelines on a time frame for the completion of the Price Shops (FPS) for implementation of communication construction of storage facilities to ensure that the rotting technology is itself a big challenge because there are of food grain is avoided at the earliest. Enforcement 515108 Fair Price Shops. Many of those might be in mechanisms such as imposing fines on the states failing to remote areas where electricity and internet facilities will be comply with these deadlines should also have been put in required. The Act provides for door step delivery of food grains. This will require well established delivery system Id., Section 10: State Government to prepare guidelines and to identify priority households (1) The State Government shall, within the number of persons determined under section 9 for the rural and urban areas, identify—(a) the households to be covered under the Antyodaya Anna Yojana to the extent specified under sub-section (1) of section 3, in accordance with the guidelines applicable to the said scheme;(b) the remaining households as priority households to be covered under the Targeted Public Distribution System, in accordance with such guidelines as the State Government may specify: Provided that the State Government may, as soon as possible, but within such period not exceeding three hundred and sixty-five days, after the commencement of the Act, identify the eligible households in accordance with the guidelines framed under this sub-section: Provided further that the State Government shall continue to receive the allocation of food grains from the Central Government under the existing Targeted Public Distribution System, till the identification of such households is complete. (2) The State Government shall update the list of eligible households, within the number of persons determined under section 9 for the rural and urban areas, in accordance with the guidelines framed under sub-section (1).
Id. Section 9: Coverage of population under Targeted Public Distribution System- The percentage coverage under the Targeted Public Distribution System in rural and urban areas for each State shall, subject to sub-section (2) of section 3, be determined by the Central Government and the total number of persons to be covered in such rural and urban areas of the State shall be calculated on the basis of the population estimates as per the census of which the relevant figures have been published.
Category wise ration cards as on 31 December 2013, APL 54 per cent, BPL 36 per cent and AAY 10 per cent.
Editorial, "Let Not Grains Rot in Godowns while Millions Cry for Food," The Hindu, (Aug. 9, 2010).
Ashok Gulati, Jyoti Gujral et.al., National Food Security Bill: Challenges and Options, Discussion Paper-2, Commission for Agricultural Costs and Prices, 13 (2012), available at: http://cacp.dacnet.nic.in/ViewQuestionare.aspx?Input=2&DocId=1&PageId=42&KeyId=470. (Visited "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 having proper database of every ration card holder with sans political will to implement the same. There is enough their addresses. This type of mechanism requires highly food on the planet to adequately feed everyone alive secure and transparent delivery system. today. But the rules governing national agricultural policy and international trade, along with the economic The grievance redressal mechanisms envisaged in the Act incentives in the global food production system, do not commenced at the district level. The State Food currently result in fulfillment of access to adequate food for Commission is the grievance redressal forums at the state all. While India has made significant progress in the areas and national levels. However, the Act does not provide for of science and technology and industrial development, any such mechanisms at the village or taluk levels. Since a food security for the rural poor continues to be a cause of large section of the beneficiaries of the legislation reside in concern. Food insecure people neither consistently rural areas, they will be hard pressed to approach forums produce enough food for themselves nor have they the even at the district level due to financial reasons. The only purchasing power to buy food from markets. It is a body at village/taluk level is the Vigilance Committee, complex issue which would have far reaching and serious which lack any real decision making powers. They are implications like threat to national security, disturbance of neither empowered to impose penalties on the violators, peace, human rights violations and decline in the quality nor to take remedial measures for the improvement of the of human resources. In addition to the domestic causes, schemes they are mandated to oversee. The lack of an imperfect market practices of multinational groups in effective and approachable forum to resolve and plug controlling production, usage, transport and trading implementation gaps points to the superfluous approach practices are causing food insecurity in India. Small adopted under the Act. Under the Act, a public servant producers and people working in unorganised sectors are who has failed to comply with the relief recommended by the ultimate sufferers both in rural and urban areas due to any of the grievance redressal officers is liable to pay a neo-liberal policies. There is no dearth of availability of paltry sum of Rs. 5000. It is shocking that even after the food grain in the country still a large section of the poor poor implementation history of Public Distribution System population does not have adequate access to food. The the Act has decided to let off potential culprits lightly. The government needs to review policy from time to time and inclusion of provisions which will act as a serious deterring take corrective measures for effective implementation of factor is non-negotiable if one is to tide over the problems different schemes and programs, establish effective of the earlier food regime.
mechanisms of accountability and ensure the right to food for all. We hope, in a world of globalization and rapid transmission of information, the knowledge will also move Law makes little difference unless it can be implemented in more quickly in order to reduce the suffering of those practice, and conference documents remain mere rhetoric exposed to the hardship of food insecurity.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 National Refugee Law on the Lines of International Law: The Need of the Hour India is a traditional country known for welcoming refugees from all over the world. Ancient India is well known for welcome of refugees with open arms and their honour and dignity in our society. The history of Refugee is five thousand years old in India. India is not a signatory to the United Nations Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the status of Refugees, 1967. The Legal Regime relating to the Refugee Protection in India includes: the Constitution of India, 1950, the Foreigners Act, 1956, Registration of Foreigners Act, 1939, the Foreigners Order, 1948 and the Indian Citizenship Act, 2003. India has no legal framework for determining Refugee status. India being a leader in South Asia plays an important role in the treatment of refugees and it shelter one of the largest refugee populations in the world. The Indian Judiciary evolved a wider and humane approach in dealing the matters of refugees and gave a liberal interpretation in National Human Rights Commission vs. State of Arunachal Pradesh. The need of the hour is for a stable and secure guarantee of refugee protection in India. The UN Convention relating to the Status of Refugees, 1951 is the Foundation of International Refugee Law and it is the most comprehensive codification of the rights of refugees at the International level. The Protocol Relating to the Status of Refugees, 1967 further codified and protected the rights of the refugees at the International Level. India is a country which does not discriminate between refugees on the basis of race, political affiliation or religion. The Indian Courts widely interprets the provisions of International Instruments such as Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the Convention on Elimination of All Forms of Discrimination against Women etc., into the provisions of Articles 14, 21 and 25 of the Constitution. The endeavor of Indian Courts to protect the right of refugees is commendable. But, there is an urgent need for a legal framework to provide for the protection, rehabilitation and repatriation of refugees. The decisions of the Indian Courts had minimized the rigours of the refugees, but for effective and permanent solution to the problems of refugees, legislation alone can lend a helping hand. In India, at present, there are nearly five lakh refugees and every day the inflow of refugee's increases. The provisions of the Foreigners Act provide for unfettered and unlimited powers to the Government to expel foreigners. In order to fulfill its Commitment to uphold the principles of International Human Rights, the Indian Government needs to enact a comprehensive National Refugee Law on the lines of International law and it is the need of the hour.
Key Words: Refugee, Foreigners, Protection, Rehabilitation, Repatriation.
approach in dealing with the matters of refugees and gave a liberal interpretation in various cases. The need of the India is a traditional country known for welcoming hour is for a stable and secure guarantee of refugee refugees from all over the world. Ancient India is well protection in India. The UN Convention relating to the known for welcome of refugees with open arm and their Status of Refugees, 1951 is the Foundation of honour and dignity in our society. The history of Refugees is International Refugee Law and it is the most five thousand years old in India. India is not a signatory to comprehensive codification of the rights of refugees at the the United Nations Convention Relating to the Status of International level. The Protocol Relating to the Status of Refugees, 1951 and the Protocol Relating to the status of Refugees, 1967 further codified and protected the rights of Refugees 1967. The Legal Regime relating to the Refugee the refugees at the International Level. India is a country Protection in India includes: the Constitution of India, which does not discriminate between refugees on the basis 1950, the Foreigners Act, 1956, Registration of Foreigners of race, political affiliation or religion. The Indian Courts Act, 1939, the Foreigners Order, 1948 and the Indian widely interpret the provisions of International Instruments Citizenship Act, 2003. India has no legal framework for such as Universal Declaration of Human Rights, the determining Refugee status. India being a leader in South International Covenant on Civil and Political Rights, the Asia plays an important role in the treatment of refugees International Covenant on Social, Economic and Cultural and it shelters one of the largest refugee populations in the Rights, the Convention on Elimination of All Forms of world. The Indian Judiciary evolved a wider and humane Discrimination against Women etc., into the provisions of * Advocate & Notary Public, Sai Law Assocites, Mayiladuthurai, Tamilnadu.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Articles 14, 21 and 25 of the Constitution of India. The In Oxford Dictionary, refugee is defined as a "A person endeavour of Indian Courts to protect the right of refugees who has been forced to leave his country in order to is commendable. But, there is an urgent need for a legal escape war, persecution, or natural disaster." framework to provide for the protection, rehabilitation and West's Encyclopedia of American Law defines refugees as repatriation of refugees. The decisions of the Indian Courts Individuals who leave their native country for social, had minimized the rigours of the refugees, but for effective political, or religious reasons, or who are forced to leave and permanent solution to the problems of refugees, as a result of any type of disaster, including war, political legislation alone can lend a helping hand. In India, at upheaval, and famine.
present, there are nearly five lakhs refugees and every day the inflow of refugees is increasing. The provisions of the In Black's Law Dictionary, refugee is defined as "any person Foreigners Act provide for unfettered and unlimited who owing to well founded fear of being persecuted for powers to the Government to expel foreigners. In order to reason of race, religion, nationality, membership of a fulfill its commitment to uphold the principles of particular social group or political opinion is outside the International Human Rights, the Indian Government country of his nationality and is unable or owing to such needs to enact a comprehensive National Refugee Law on fear is unwilling to avail himself of the protection of that the lines of International Law and it is the need of the hour. This paper discusses in detail the existing International In Cambridge Advanced Learners Dictionary & Thesaurus Instruments on Refugee Law, Indian Laws on Refugees, defines refugee as "a person who has escaped from their Judicial Initiatives towards Protection of Refugees and the own country for political, religious, or economic reasons need for a comprehensive National Refugee Law. or because of a war." In Free Dictionary, refugee is defined 2. Definition of Refugee as "One who flees in search of refuge, as in times of war, political oppression, or religious persecution". In the The term refugee is defined under Article 1 (A) 2 of the Macmillan Dictionary, refugee is defined as "someone International Convention Relating to the Status of who leaves his country, especially during a war or other Refugees, 1951 as "the term Refugee shall apply to any threatening event." person who:. "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, In Oxford English Dictionary Online, refugee is defined as membership of a particular social group of political a person who is outside his home country because he has opinion, is outside the country of his nationality and is suffered (or feared) persecution on account of race, unable or owing to such fear, is unwilling to avail himself of religion, nationality, political opinion, or because he is a the protection of that country; or who, not having a member of a persecuted social category of persons or nationality and being outside the country of his former because he is fleeing a war. Such a person may be called habitual residence as a result of such events, is unable or, an 'asylum seeker' until recognized by the state where he owing to such fear, is unwilling to return to it." A Refugee is makes a claim.
a person who flees for shelter to another country or has left The definition of refugee was further expended by the his home land or place of residence due to unavoidable Convention's 1967 Protocol and by Regional Convention and oppressive circumstances and not prepared to go in Africa and Latin America to include persons who had back to his original place. Sometimes a refugee is also feared war or other violence in their home country . In called Saranarthi who takes shelter in another country as a short, refugees mean persons who are internally displaced fugitive . Refugees are defined by three basic and war – affected populations, asylum seekers, stateless people and others whose nationality are disputed and displaced people who have not been able to go back to they are outside their country of origin or outside the country of their former habitual residence, their homes.
they are unable or unwilling to avail themselves of the 3. International Instruments on Refugee protection of that country owing to a well-founded fear of being persecuted, and The right to seek refuge has been incorporated in the the persecution feared is based on at least one of five Universal Declaration of Human Rights, 1948. Article 14 grounds: race, religion, nationality, membership of a (1) of UDHR states that everyone has the right to seek and particular social group, or political opinion . 1 Prafulla Kumar Nayak, Protection of Refugees : A Humanitarian Crisis in India, Voice of Research, Vol. 2 Issue 3, December 2013, p.95.
2 Rule of Law in Armed Conflicts Project RULAC International Refugee Law Untitled Document, http://www.geneva-academy.ch/RULAC/. Last visited on April 25, 2015 3 Wikipedia on Refugee, http://en.wikipedia.org/wiki/Refugee#cite_note-1 Last visited on April 25, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 to enjoy in other countries, asylum from persecution. The refugees can be traced mainly in customary international Convention Relating to the Status of Refugees, 1951 is the law. India ratified the International Covenant on Civil and basic International Document on Refugee Law. It Political Rights (ICCPR) and the International Convention consolidated various International Instruments relating to on Economic, Social and Cultural Rights (ICESCR). India refugees and provided the most comprehensive also voted to adopt the UN Declaration of Territorial codification of the rights of refugees at the International Asylum, 1967. In 1995, India became a member of level . The 1951 Convention guaranteed various rights for Executive Committee of the High Commissioner's refugees under Articles 14 to 16. Article 14 deals with Programme (EXCOM). India adopted the principle of artistic rights and industrial property. Article 15 deals with Non-refoulement which was envisaged in the 1966 rights of association and Article 16 deals about access to Bangkok principles.
courts and legal assistance. The Protocol Relating to Status The legal regime of Indian Refugee Laws include the of Refugees, 1967 is independent and integrally related to Foreigner's Act, 1946, the Emigration Act, 1983, the the 1951 Convention. The main features of the Protocol, Passport Act, 1967, the Indian Constitution Act, 1950, the 1967 are: (i) the basic refugee definition (ii) the legal status Registration of Foreigners Act, 1939, the Foreigners of refugees, and (iii) States' obligations. Order, 1948 and the Indian Citizenship Act, 2003. Earlier The OAU Convention Governing the Specific Aspects there were a number of ad hoc legislation passed by the Refugee Problems in Africa, 1969 is a Regional Refugee Government for refugees, evacuees and displaced Law framed to deal with region specific problems of persons. They are East Punjab Evacuees (Administration of refugees in Africa. It provided for a well defined definition Property) Act, 1947, UP Land Acquisition (Rehabilitation of of refugee under Article 1. The Cartagena Declaration, Refugees) Act, 1948, the East Punjab Refugees 1984 is the gathering of Government representatives, and (Registration of Land Claims) Act, 1948, the Mysore distinguished Latin American Jurists recommended for the Administration of Evacuee Property (Emergency) Act, inclusion of definition of refugee mentioned in the 1951 1949, the Mysore Administration of Evacuee Property Refugee Convention, and also include persons who have (Second Emergency) Act, 1949, the Immigrants (Expulsion fled their country because their lives, safety or freedom from Assam) Act, 1950, the Administration of Evacuee have been threatened by generalised violence, foreign Property Act, 1950, the Evacuee Interest (Separation) Act, aggression, internal conflicts, massive violation of human 1951, the Displaced Persons (Debts Adjustment) Act; rights or other circumstances which have seriously 1951, the Influx from Pakistan (Control) Repelling Act, disturbed public order to be followed by Latin American 1952, the Displaced Persons (Claims) Supplementary Act, Countries. The Declaration is not legally binding on States. 1954 and the Refugee Relief Taxes (Abolition) Act, 1973. But, has been endorsed by the Organisation of American Refugees entering India are also subjected to the States, the UN General Assembly and UNHCR's Advisory provisions of the Indian Penal Code, 1860, the Indian Executive Committee. The Asian African Legal Evidence Act, 1872 and the Code of Criminal Procedure, Consultative Committee Principles, 1996 concerning the 1973. Refugees are treated and tried in the same manner treatment of refugees were adopted in Bangkok. The office as ordinary Indian citizen in criminal cases.
of United Nations High Commissioner for Refugees The Constitution of India under Part III provides for (UNHCR) was established in 1950 by the UN General Fundamental Rights for refugees also. Articles 14, 20 and Assembly through Adoption of UNHCR statute. The aim of 21 of the Indian Constitutions are equally applicable to the agency is to protect refugees and resolve refugee refugees on Indian soil in the same way as applicable to problems worldwide. Its primary purpose is to safeguard Indian citizens. The Right to life and personal liberty the rights and well beings of refugees. The UNHCR guaranteed under Article 21 of the Indian Constitution is encouraged the states to take part in the 1951 Refugee applicable to all irrespective of the status whether they are Convention. It also emphasized the states to enact citizens or aliens. Right to equality under Article 14, right to National Refugees Law. It provided expert advice, analysis life and personal liberty under Article 21, right to and command and draft laws.
protection under arbitrary arrest under Article 22, right to 4. Indian Legal Regime on Refugees protection in respect of conviction of offences under Article 20, freedom of religion under Article 25 and right to India is not a party to the 1951 Refugee Convention or its approach Supreme Court for enforcement of 1967 Protocol nor does it have a national refugee Fundamental Rights under Article 32 are available to protection framework. India hosts a large number of refugees in India. Indian Constitution guarantees the refugees and continues to grant asylum from refugees to live with human dignity. Right against solitary neighbouring states. India's legal obligation to protect confinement, right against custodial violence and right to 4 Sofiabhambri, Home Sweet Home: A Review of International Refugee Law, htttp://www.sofia.com, p.4 Last visited on April 27, 2015 "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 medical assistance and shelter are also guaranteed.
Arunachal Pradesh to ensure that the Chakmas situated in territory are not ousted by any coercive action. After full The Protection of Human Rights Act, 1993 provides for the hearing, the Supreme Court held that "We are a country establishment of National Human Rights Commission. governed by the Rule of Law. Our Constitution confers The National Human Rights Commission plays an active rights on every human being and certain other rights on role in protecting human rights of refugees. The National citizens. Every person is entitled to equality before the law Human Rights Commission knocked the doors of the apex and equal protection of the laws. So also, no person can court seeking justice for Chakma refugees in National be deprived of his life or personal liberty except according Human Rights Commission vs. State of Arunachal Pradesh to procedure established by law. Thus, the State is bound and others . The Supreme Court in that case directed the to protect the life and liberty of every human-being, be he a State of Arunachal Pradesh to protect and safeguard the citizen or otherwise, and it cannot permit anybody or life, health and well being of Chakmas. It also held that group of persons, e.g., the AAPSU, to threaten the Chakmas cannot be sent back to Bangladesh and directed Chakmas to leave the State, failing which they would be the Union and State Governments to respect International forced to do so. No State Government worth the name can Treaties on Humanitarian Law. tolerate such threats by one group of persons to another Though plethora of legislations exist in India which deal group of persons; it is duty bound to protect the threatened with refugee problem, there is no comprehensive refugee group from such assaults and if it fails to do so, it will fail to law for granting statutory protection to refugees and the perform its Constitutional as well as statutory obligations. need of the hour is a comprehensive refugee law Those giving such threats would be liable to be dealt with guaranteeing status, rights and fair treatment to refugees.
in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard 5. Judicial Activism towards Protection of the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are Courts in India adopted a liberal approach in taking into denied rights, Constitutional and statutory, to be account the International Covenants while interpreting the considered for being registered as citizens of India". The statute law. The role played by the Indian Judiciary in the Supreme Court further directed the State of Arunachal matters of refugees has minimized their rigours. The Indian Pradesh to ensure the life and personal liberty of each and Judiciary has ruled in favour of harmonious construction of every Chakma residing within the State shall be protected. International and Domestic Law when it is consistent with Any attempt to forcibly evict or drive them out of the State the fundamental rights. The Indian Judiciary through shall be repelled. The Court further directed the Union of progressive judicial interpretation extended the scope and India to provide additional force to protect the lives and ambit of Articles 14 and 21 of the Indian Constitution to liberty of the Chakmas and they shall not be evicted from non citizens including refugees. In National Human Rights their homes and shall not be denied domestic life and Commission vs. Arunachal Pradesh and another, the comfort. The Court also directed for registration of Supreme Court held that the State was under a Chakmas as citizens of India under section 5 of the Constitutional obligation to protect refugees. It was a Citizenship Act. It is a landmark judgment of the Supreme Public Interest Litigation filed by the National Human Court which paved the way for protection of refugees in Rights Commission seeking to enforce the rights of Indian jurisprudence. The Supreme Court in Louis De Chakmas under Article 21 of the Constitution. The Raedt vs. Union of India7 and State of Arunachal Pradesh Chakmas settled in Arunachal Pradesh complained that vs. Khudiram Chakmas held that foreigners are entitled to there was threat to the life of Chakmas and steps were the protection of Article 21 of the Constitution. In taken to expel the Chakmas from the State of Arunachal Gurunathan and others vs. Government of India , the Pradesh. Complaints were sent to National Human Rights Madras High Court expressed its unwillingness to let any Commission from various quarters of Chakmas. The Sri Lankan Refugees to be forced to return Sri Lanka National Human Rights Commission decided to approach against their will. The same was reiterated by the Madras the Supreme Court to seek appropriate reliefs for the High Court in A.C.Mohamed Siddique vs. Government of protection of Chakmas. On 02.11.1995, the Supreme India and others . In Syed Ata Mohammadi vs. Union of Court issued an interim order directing the State of India , the Bombay High Court held that there is no (1996) 1 SCC 742 (1994) Supp. (1) SCC 615 WP. Nos. 6708 and 7916 of 1992, Madras High Court 1998 (47) DRJ (DB) p.74 WP. No. 7504/1994, Bombay High Court "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 question of deporting the Iranian Refugee to Iran, since he The principle of non-refoulement must find a has been recognized as a refugee by the UNHCR. The prominent place in the National Refugee Law. Non- Court further permitted the refugee to travel to whichever Refoulement must be a right given to the refugee, country he desired. In Malavika vs. Union of India12, subject to threat to national security, sovereignty and Maiwand's Trust of Afghan Human Freedom vs. State of integrity of the nation.
Punjab and N.D. Pancholi vs. State of Punjab and Special provisions for women and children refugees Others , the Supreme Court of India stayed deportation of should be provided. refugees. In Revs.Mons Sebastiao Francisco Xavier dos Right to employment, right to free access of Courts, Remedios Monterio vs. State of Goa , the Supreme Court rights of association, right of public assistance, right examined the scope of Geneva Convention Act, 1960, to elementary education, right to public health, right and observed the efficiency of the Act. A careful analysis to shelter, right to protection, right against arbitrary of the above judgments of the Superior Courts will go to arrest, right to personal liberty, right to life shall be show the tendency of the Indian Judiciary in extending the guaranteed in the national refugee law. helping hands for the refugees by liberally interpreting There must be a provision for supply of essential various provisions of the Constitution.
commodities for refugees under Public Distribution System.
6. Conclusion and Suggestions The committee for determining the status of refugee India is not a signatory of the 1951 Convention on shall be provided in the new statute headed by a Refugees or the 1967 Protocol on Refugees. But, it is a retired judge of the Supreme Court. The refugees signatory to Universal Declaration of Human Rights, shall have a right of appearance before the refugee 1948, the International Covenant on Civil and Political committee either personally or by a pleader. Rights, 1966, the International Covenant on International Right to free legal aid for all refugees must be Convention on Economic, Social and Cultural Rights provided in the new enactment. (ICESCR), UN Declaration of Territorial Asylum, 1967, the There must be a provision that no refugee shall be International Convention on the Elimination of All Forms expelled to a place where his life or freedom will be of Racial Discrimination, 1966, and the Convention for Elimination All Forms of Discrimination Against Women, National Refugee Rights Commission on the lines of 1980. India has a wide range of legislations dealing National Human Rights Commission must be indirectly with refugees but there is no comprehensive established to protect the rights of the refugees. National Refugee Law. A comprehensive National Right of acquisition of movable and immovable Refugee Law is the need of the hour. Earlier attempts have properties must be provided to the refugees. been made to enact National Refugee Law but ended in Right to move freely throughout the territory of India vain. The foremost requirement is a legislation making subject to certain exceptions must be provided for the provisions for the protection of the refugees. The Eminent Persons Group chaired by Justice P.N. Bhagwati suggested A judicious, fair and proper procedure must be a model law for refugee protection but, could not end in followed in determining the status of refugees. Refugees are to be treated only on humanitarian grounds and not on any political considerations. The National Refugee Law should make provisions for the All refugees shall have the right to complete freedom to practice their own religion.
Refugees should not be discriminated on the basis of Definition of "Refugee" should be broadened inclusive of victims of economic, social and cultural race, political affiliation and religion. rights violations ahead of sufferers of political and India receives lakhs of refugees from neighbouring civil rights violation.
countries every year and will continue to receive more in A refugee shall be excluded from his status if he is the near future. In South Asia, India is the only country to convicted for a crime against peace, a war crime or a have stable democracy and vibrant economy and a crime against humanity. country with a human face and hence it is a welcome point The principles relating to refugees in International Law for all refugees in South Asia. So, a National Refugee Law should be incorporated in the Indian Refugee Law. for dealing with the refugees is the need of the hour. Crl.WP.No. 243/1988, Supreme Court of India Crl.WP.No. 125 & 126/1986, Supreme Court of India WP.(Civil) No. 1294/1987, Supreme Court of India "Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Residential Status and Taxability under the Indian Income Tax Act, 1961 Collection of tax is indeed an inevitable need of the government of any country. A country can only survive when it has sufficient and powerful sources of income and tax is considered as one of the major and essential sources of Income. In India, Government (both Central as well as States) imposes number of taxes which are categorically divided as direct and indirect Taxes. In this research article, the authors have covered only the aspect of direct tax focusing on Income Tax Act, 1961. The purpose of this article is to understand the proposition of residential status which play a significant role in determining the tax liability of a person including company and HUF. The authors will initiate the discussion by showing the importance of residence and residential status as a factor to determine the tax liability of a person. Subsequently the authors move on to determine how residential status is calculated as per Section 6 of the Income Tax Act, 1961 so as to impose or not to impose tax liability on different persons such as Individual, Company, HUF, a firm, Association of Persons and other persons. The paper will also explore the 'control and management' test as per section 6 of the Income Tax Act, 1961 so as to determine the tax liability of a person. Key Words: Residential status, Control and management, Hindu undivided family, Company, Not ordinary resident.
previous year for all the assessees and all sources. A person resident in a previous year relevant to an The determination of the residential status of a person is assessment year in respect of any source of income, he essential in order to determine his tax liability. This is an shall be deemed to be resident in India in respect of each important factor to be determined as to know whether the of his other sources of income in the previous year relevant income of the person accrued to him outside India is to the same assessment year. The importance of taxable or not in India as it depends on his residential determining the residential status of an assessee is status in India. It also helps in determining when the essential for income tax purposes because it is important to income of the foreign national earned in or outside India is be sure that the person being assessed belongs to that taxable or not as it depends upon his residential status particular category only and should not be able to evade rather his citizenship. The expression 'residence' is an paying taxes at any cost. Most importantly, tax burden on ambiguous word and different meanings may be an assessee depends on his residential status itself. attributed to this expression according to the position in which it is found.
2. Residential Status of a Person and its Tax In Re Calcutta Stock Exchange Association Ltd, the learned judge observed the word 'residence' in its simple and The residential status of an assessee is to be determined in ordinary meaning as the place where a human being eats, each previous year i.e. the accounting year as it might vary drinks and sleeps or where his family and servants eat, each year. Essential is his status during the 'previous year' drink and sleep and where there is permanence of such and not during the assessment year. There are two types of activities being followed. Residence indicates a personal taxpayers- resident in India and non-resident in India. It is quality and it is not descriptive of a person's property. A to be always remembered that the Indian income is always person may be a resident in one year and a non-resident in taxable in India no matter whether the person earning it is the next. There has been an introduction of a uniform an Indian resident or a non-resident. A foreign person's * Student, B.B.A. LL.B. (Hons.), Fourth Year, Semester IV, National law University, Odisha.
** Student, B.B.A. LL.B. (Hons.), Fourth Year, Semester IV, National law University, Odisha.
1 Bowie, In re, Ex parte Breull (1880) 16 Ch D 848 (CA).
See also Aishwarya Padmanabhan, Concept of "Residence" under Income Tax Act, 1961, available athttp://manupatra.com/roundup/367/Articles/Concept%20of%20Residence.pdf (Last visited October 9, 2014). CIT vs. Amarchand N Shroff, (1963) 48 ITR 59 (SC).
Kinlock vs. IRC, (1929) 14 TC 736.
The Income Tax Act, 1961 Sec. 6(5).
Wallace Bros & Co Ltd vs. CIT, (1945) 13 ITR 39, 44 (FC).
Rai Bahadur Seth Teomal vs. CIT, (1963) 48 ITR 170 (Cal).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 income shall also be taxable in India provided the person three hundred and sixty-five days or more, and is in is resident in India during the previous year. In Rai Bahadur India for a period or periods amounting in all to sixty Seth Teomal vs. CIT, it has been held that whether an days or more in that year. assessee is a resident or a non-resident is a question of fact The two special cases when only the first 6 (a) condition and it is the duty of the assessee to place all relevant facts needs to be fulfilled are: before the income-tax authorities, thus the onus of proof lies on the assessee. Special case one- it covers an Indian citizen who leaves India during the previous year for the purpose of A person who is a resident in India for an assessment year employment outside India or an Indian citizen who leaves can also become a resident in any other country for the India during the previous year as a member of the crew of same assessment year. A person cannot have two an Indian ship.
The individual need not be an domiciles but for tax purposes he can be a resident in more unemployed person. The individual may be employed in than one country at the same time for tax purposes.
India and leave India during the previous year on a foreign Residential status: There are three kinds of residential assignment of his employer company. status envisaged for an assessee under the Income Tax Act, Special case two- it covers an Indian citizen or a person of 1961, which are as follows: Indian origin who comes on a visit to India during the (a) Resident (also known as resident and ordinarily Now for the above two mentioned special cases, an (b) Non-resident or not resident individual shall be resident in India only if he is in India during the relevant previous year for at least 182 days. (c) Resident but not ordinarily resident (a category of residential status) only applicable to individuals and The first test is applicable with regard to stay in India for Hindu undivided families.
182 days or more- the prescribed period may not be a continuous one. If an individual stays in India on an Section 6 of the Income Tax Act, 1961 lays down the test of aggregate for 182 days is enough to determine his residence for the following taxable entities: residential status for the purpose of determining his tax (a) An individual liability in India. A part of the day spent shall be (b) A Hindu undivided family considered as full day, so that both the dates of entry into India and exit from India shall be considered for (c) A firm or other association of persons ascertaining 182 days.
(d) A company The onus is on the assessee to establish as to whether he (e) Every other person. stayed or not in India for a total period of 182 days or more depending upon whether the assessee wishes his income 2.1 Residential Status and Taxability of an tax to be assessed with his status as a resident, or a non- resident or not ordinarily resident in the previous year. It An individual is said to be resident in India in any previous is not necessary that the stay must have been in connection with the purpose of earning income for the purpose of taxation. The intention and the purpose of stay are not (a) Is in India in that period for a period or periods relevant. Even a stay consequent on detention against amounting in all to one hundred and eighty-two days one's will can be taken into account. 'Domicile' is different from residence. In law, a person may be a resident of more (b) Having within the four years preceding that year been than one place, though he cannot have domicile of more in India for a period or periods amounting in all to than two places simultaneously. 10 The Income Tax Act, 1961 Sec. 6.
11 The Income Tax Act, 1961 Sec. 6(1).
12 SampathIyengar,Law of Income Tax 1386 Vol. 1 (New Delhi Bharat Law House,11 edn., 2011).
13 In re, British Gas India (P.)Ltd.,  155 Taxmann 326.
15 Supra note 11.
16 Vispi T Patel, "How Expatriates are Taxed in India" 15 International Tax Review 42 (2003-04).
18 Wilkie vs. IRC, (1951) 32 TC 395.
19 In re, Mackenzie, (1941) Ch 69.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 The second test is with regard to Stay in four preceding years preceding that year, or has during the seven previous years- this test is for the physical presence of an individual years preceding that year been in India for a period of, or for a minimum aggregate period of 365 days during the periods amounting in all to seven hundred and twenty- four years preceding the previous year coupled with a nine days or less.
physical presence for not less than sixty days during the For an, individual to be treated as an 'ordinarily resident' in previous year. The four years preceding the accounting India in any previous year, he must not come within the year are not the British calendar years as defined in the mischief of either of the two conditions mentioned above. General Clauses Act, 1897 but the four consecutive If the individual's status turns out to be of a 'resident' then it accounting years of the assessee immediately preceding is to the assessee individual to prove that he is 'not the commencement of the relevant accounting year, ordinarily resident. On proof of his fulfilling either of the without any gap in between each of such years being taken two tests mentioned above he can avail the advantages of as a period of any twelve calendar months and not not ordinarily resident. From his total income all the necessarily the calendar year (i.e. 1 January- 31 foreign income except such income which arises from a (foreign) business controlled in India or a (foreign) The nature, quality or purpose of the 365 days' stay in the profession set up in India shall be excluded, which four years preceding the previous year is of no relevance. advantage he shall lose if he is assessed as 'ordinarily Similarly the purpose or the object of the visit to India during the previous year in question is also not relevant. The individual may come for business purpose or to 2.2 Residential Status and Taxability of a obtain medical advice or to meet his relatives or to take part in religious observances or may be to make A company is said to be resident in India in any previous arrangements for the purposes of education for his children. The individual may also visit India just for pleasure, the country being just merely on the itinerary (i) it is an Indian Company; or during his usual travels.
(ii) during that year, the control and management of its In Syed Abdul Cader (AMM) vs. CIT, it has been held that affairs is situated wholly in India.
reasons which may compel a visitor to leave his country A company is said to 'reside' within the meaning of the with a view to seeking refuge in India (the reasons may be word 'reside' as used in the Income Tax Act and other beyond his control) have also likewise, no relevance. In statutes also. It is said to reside for purposes of income-tax this particular case, the assessee fearing Japanese where its real business is carried on. An Indian company invasion, left Ceylon where he had permanently settled. is always resident in India. A foreign company is resident in He lived with his father in India for the duration from 1 India only if, during the previous year, control and January, 1942- 1 July, 1942. The assessee's visit could management of its affairs is situated wholly in India. Thus not have been said to make a casual or occasional visit. a foreign company is treated as non-resident if, during the Resident but not ordinarily resident previous year, control and management of its affairs is either wholly or partly situated outside India.
A person is said to be "not ordinarily resident" in India in any previous year if such person is an individual who has A company shall be regarded as an Indian company if (i) been a non-resident in India in nine out of ten previous the company is formed and registered under any law 20 Supra note 11.
21 CIT vs. Savumiamurthy, (1946) 14 ITR 185 (Mad).
22 Lysaght vs. IRC, 13 TC 511 (HL).
23 ShamnathMushran vs. CIT, (1950) 18 ITR 840 (All)24 Levene vs. IRC, 13 TC 486, 496 (HL).
25 Kinloch vs. IRC, (1929) 14 TC 736.
26 IRC vs. Zorab, 11 TC 289.
27 A.M.M. Sayed Abdul Cader vs. CIT,(1950) 18 ITR 310 (Mad).
28 The Income Tax Act, 1961 Sec. 6(6).
29 Townsend (CN) vs. CIT, (1974) 97 ITR 185 (Pat).
30 Supra note 12.
31 Supra note 12.
32 The Income Tax Act, 1961 Sec. 6(3). 33 Calcutta Jute Mills Co.Ltd. vs. Nicholson, (1876) 1 TC 83 (Ex D).
34 M.K. Pithisaria and MukeshPithisaria, Chaturvedi&Pithisaria's Landmark Judgments on Income Tax 188 Vol. 1(Lexis Nexis, 2014).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 relating to companies which was or is in force in any part of the assets of the company his individual's, as distinct from India, and (ii) if the registered office of the company is in the company's.
Possibility of Dual Residence A company shall be regarded as a resident in India, if its A company can have a dual residence. According to the affairs are managed and controlled wholly from within Income Tax Act, a situation where it is found that there is The expression 'control and management' means division in the central control and management between de facto control and management and not merely the right India and another country, the company shall have to be or power to control and manage. considered as non-resident, since the Income Tax Act, The term "control and management" refers to head and 1961, demands that the status of residence of a company brain which directs the affairs of policy, finance, disposal of requires management and control of its affairs wholly in profits and vital things concerning the management of a India. Even a partial control of the company outside India company. Control is not necessarily situated in the country is sufficient to hold a foreign company as a non-resident.
in which the company is registered. Under the tax laws a A company may be a 'resident' in India in a year and in the company may have more than one residence. The mere other year a 'non-resident.' The status of the company may fact of a company being resident in a foreign country does also change during the course of the previous year itself.
not necessarily displace its residence in India.
Foreign company in liquidation In Vodafone International Holdings B.V. vs. Union of India, it has been seen that a mere fact that a parent Under the provisions of the Companies Act, 1956, foreign company exercises shareholders' influence on its companies are treated as unregistered companies for the subsidiaries does not generally imply that subsidiaries are purpose of winding-up. Upon winding-up of a foreign to be deemed as residents of the State in which the parent company, the board of directors cease to exist and the company resides. The Board of Directors- usually control control and management vests with the official liquidator.
and manage the affairs of company at the place where Where the foreign company went into liquidation and the meetings of board of directors are held. In Narottam & company had income from interest and rent in India and Pereira Ltd. vs. CIT, it has been held that the control and the affairs relating to the earning of such income were management is central control and management, and not being controlled and managed in India by the official carrying on of day to day business by servants, employees liquidator, it was held that the assessee - company in or agents. Control and management is situated where the liquidation must be deemed to be resident in the country.
central management and control actually exists i.e. where the supreme command over the company's affairs rests. 2.3 Residential Status and Taxability of a The word 'affairs' means affairs which are relevant for the Hindu Undivided Family and a Firm or purposes of the Income Tax Act,1961 and which have Other Association of Persons some relation to the income sought to be assessed.
In India, one of the unique features of Hindu religion which 'Control' does not mean a shareholding control and so he has been continuing from time immortal is the concept of has no advantage where he himself or by his nominees joint family or Hindu Undivided Family (hereinafter called holding practically all the shares in a company may as 'HUF') where all the members of a family like exercise it in the sense that he may by exercising his voting grandfather, fathers, all mothers, brothers, sisters their powers, turn out the directors and enforce his own views as respective spouses live together and share a single roof.
to policy because such shareholding control will not in any In recent times, the HUF has emerged as a new way of way diminish the rights or powers of the directors or make 36 Bhimji R Naik vs. CIT, (1946) 14 ITR 334 (Bom).
37 Unit Construction Co. Ltd. vs. Bullock, (1961) 42 ITR 340 (HL).
38 B.B. Lal, Income Tax 2.6 (Pearson India, 2010).
39 Vodafone International Holding B.VS. vs. Union of India,  204 Taxmann 408 SC: (2012) 6 SCC 613. 40 Narottam& Pereira Ltd. vs. CIT, (1953) 23 ITR 454 (Bom).
41 CIT vs. Bank of China, (1985) 154 ITR 617 (Cal).
42 Supra note 12 at 1386.
43 Mitchel vs. Egyptian Hotels Ltd, (1951) 6 TC 542.
44 The Income Tax Act, 1961 Sec. 6(3) (ii). 45 Radha Rani Holdings (P.) Ltd. vs. DIT,  16 SOT 495 (Del).
Kaushal Kumar Agrawal, Insight into Income Tax 32 (Atlantic Publishers, 9 edn. 2007).
48 CIT vs. Bank of China, (1985) 154 ITR 617 (Cal); See alsoHarGovind, "India: Taxation of Multinational Companies" 14 (6) International Tax Review149-150 (1986).
49 Jyoti Dialani, Hindu Undivided Family: Tool for Tax Planning for Non-resident Indians,4 Legal views 1available at http://www.singhania.com/Publication/HUF.pdf (Last visited October 11, 2014).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 escaping from the tax liability. As per the Indian Incomes will be considered as a resident in India if the 'control and Tax law, the income of the HUF will be taxed and not the management' of the affairs of such entities are wholly or individual's income. This gives more benefit and partly situated in India. If the control and management of advantage, in monetary form, to the HUF because the tax the affairs of HUF are situated wholly outside, it will be on the HUF's income and property will be much less than considered as non-resident in India. The Table 1 presents that of individual's incomes and property.
the different criteria about control or management ofaffairs and residential status of HUF, firm or other Section 6 (2) of the Income Tax Act, 1961 contemplates the residential status of the HUF, firm or other association. This section provides that HUF, firm or other association Table 1 : Residential Status of HUF
according to control or management of affairs
, firm or other Associations
Control or Management of Affairs Residential Status of HUF, firm or other Associations Partly in India and Partly Outside India Wholly Outside India Under section 6 (2) of Income Tax Act 1961, the phrase 'is asked is wherefrom the person or group of persons control said to be resident… in every case except where…' has the or directs business.56 The courts in India have given wider effect of ascribing to these classes of assesses a very meaning to the term control and management. The courts definite status of resident; the resident status, so to speak have adopted the meaning of control and management has been made a standard status for these group of from usage prevalent in the commercial laws and assesses.53 Thus, if an assessee, falling under any of the practices. The courts have stated that the expression three categories enumerated above, desires to get out of 'control and management' signifies controlling and this status, it is up to it to prove that, during the previous directive power, 'the head and brain' as it is sometimes year in question, the control and management of its affairs called.57 The 'head' and 'brain' would mean that the person was situated wholly outside India.54 Control and who is looking after the affairs of such entities is situated management can be exercised only by or through a from where he/she can take decisions relating to the human agency and if no individual concerned in or with policies of the institution like expansion of its business or the management or control of the business came to India looking for new ventures, raising finances and their during the previous year, obviously, the control and utilisation for appropriate purpose etc.58 Such management should have been exclusively outside India, be taken by the karta in case of HUF, senior partner(s) in from whichever place abroad it was exercised.55 case of a firm and in case of an association of persons, the principal officer.59 If these people are outside India and Test of Control and Management they are taking decision from that place, it would obviously For the purpose of taxation, it is required to show that a mean that the control and management is outside India.60 particular HUF, firm or other association of person are This does not mean that if any of the persons viz Karta, resident of India. For that reason one has to prove that the Senior partner(s) or Principal Officer is in India during the affairs of such HUF, firm or association of person are previous year, ipso facto the control and management of controlled and managed in India. The control and affairs ceases to be outside India.61 Hence the control and management of a business remains in the hand of a management is situated at a place where the head, seat person or a group of persons, and the question to be and directing mind and power are placed.62 50 Danish Sheikh and Raadhika Gupta, "Gendering Tax"4 (2) NUJS Law Review 253 (2011).
51 The Income Tax Act, 1961 Sec. 6 (2).
52 DhirajlalHaridas vs. CIT, (1982) 138 ITR 570 (Bom).
53 Supra note 12 at 1376.
54 Id. 55 Narasimha Rao Bahadur vs. CIT, (1950) 18 ITR 181 (Mad).
56 VS. VR. N. M. SubbayyChettiar vs. CIT, (1951) 19 ITR 168 (SC).
57 B.R. Naik vs. CIT, (1945) 13 ITR 124 (Bom).
58 San Paulo (Brazilian) Railway Co Ltd vs. Carter, (1896) AC 31.
59 SampathIyengar,Law of Income Tax 1386 Vol. 1 (New Delhi Bharat Law House, 11 edn., 2011).
Dr. Vinod Singhania and KapilSinghania, Direct Tax: Law and Practice 46 (Taxmann, 51 edn. 2013).
61 Supra note 12 at 1386.
62 Supra note 12 at 1386.
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 The seat of control and management of the affairs of the family may be divided, and if so, the family may The test of control and management is sine quo non for the have more than one residence.
purpose of determining the residential status of HUF, a firm and association of persons. The major issue which is If the seat of management and control is abroad, it raised before the court of law, many times, is that whether would need much more than bare activities in India to the word control mentioned under section 6 (2) of Income support a finding that the seat of management and Tax Act, 1961 is de facto control or it also includes de jure control had shifted or that a second centre for such control? The Hon'ble Supreme Court as well as Hon'ble management and control had been started in India.68 High Courts have clarified in many judgements that the Occasional visit of non-resident Karta of HUF to the control provided under section 6 (2) of the Income Tax Act place where the family business is carried on in India, should be given liberal interpretation but not in terms of or casual directions given in respect of the business theoretical aspects but practical one.63 The control and while on such visits, would be insufficient to make the management mentioned under section 6 (2) of Income Tax family resident in India.69 Actis not the theoretical control or power which exists in the karta or senior partner of a firm or the principal officer of The Courts of India has specified that even though the association of persons, but a de facto control and Karta of a HUF or senior partners of a firm or principal management actually exercised in the course of the officer of Association of persons is absent from India for conduct and management of the affairs of the family or the long time in a year does not by itself lead to the conclusion firm or the association of persons.64 The Supreme Court that such entities are non-resident in that year because the has held that control of a business does not necessarily business of such entities during that time was controlled mean the carrying on of the business, and therefore, the and managed by some other persons.70 place where trading activities or physical operations are Section 6 (6) (b) provides specific provision for 'not carried on is not necessarily the place of control and ordinary resident' in case of HUF. If the manager of HUF is management.65 Furthermore, it is settled, that the not ordinary resident then the HUF will be considered as expression 'control and management' means de facto 'not ordinary resident.' 71 control and management and not merely the right or power to control and manage. 66 If he has been resident in India in at least 2 out of 10 previous years immediately preceding the relevant The Hon'ble Supreme Court has established certain previous year.
propositions with respect to residential status of Hindu Undivided family; 67 If he has been in India for a period of 730 days or more during the seven years immediately preceding Normally a HUF is presumed to be resident in India the relevant previous year.
unless the assessee proves that the control and management of its affairs is situated wholly outside The Courts in India have interpreted the meaning of word India. The 'control and management' specifies the 'wholly' mentioned under section 6 (2) of Income Tax Act controlling and directive power whereas 'situated' and suggested that there might be a situation when the specifies the functioning of such power at a particular control and management of a HUF, firm or association of place with some degree of performance. persons is both from India and outside India simultaneously. In such a scenario, the courts have held The expression mentioned under section 6 (2) implies that it is purposeless to enquire into the extent and control the affairs which are relevant for the purpose of in either place, for, anyhow, the affairs of the assesse will Income Tax Act, 1961 and which have some relation not be 'controlled and managed wholly from outside to the income sought to be assessed. 63 CIT vs. ChitraPalayakat Co., (1985) 156 ITR 730 (Mad).
64 B.R. Naik vs. CIT, (1945) 13 ITR 124 (Bom).
65 Erin Estate vs. CIT, (1958) 34 ITR 1 (SC).
67 SubbayyaChettiar vs. CIT, (1951) 19 ITR 168 (SC); See also Arvind P. Datar, Kanga &Palkhiwala's The Law and Practice of Income Tax 317 Vol. 1 (Lexis Nexis Publication,10 edn. 2013).
68 Id. The Supreme Court said that mere facts that family maintained dwelling house in India, that Karta stayed in India for 101 days in accounting year, that during this stay in India he attended to litigation with regard to family property and to proceedings connected with assessment of family and also commenced two partnership businesses, were held insufficient to justify finding that management and control was partially situate in India during relevant year. 69 Narasimha Rao Bahadur vs. CIT, (1950) 18 ITR 181 (Mad).
70 Annamalaivs.ITO, 34 ITR 88.
71 N. Hariharan, Income Tax: Law and Practices 2.7-2.9 (Tata-McGraw Hill Publications,4 edn. 2008).
72 Subbayya Chettiar vs. CIT, (1951) 19 ITR 168 (SC).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 The courts have given strict interpretation to the expression residential status of these three classes is the same as that 'wholly' by removing the doubt that wholly would be read is prescribed for HUF, a firm and associations of persons completely in light of control and management.73 If the under section 6 (2) of the Income Tax Act, 1961.76 affairs of the entities which are mentioned under section 6 A situation may arise when an assessee has different (2) of Income Tax Act 1961, are controlled and managed sources of income in different previous years how to from wholly outside, then it will be non-resident. There determine his residential status.77 Section 6 (5) of the should be absence of controlling and managing of affairs Income Tax Act solves this issue.78 Earlier, the position was from India, and if the firm is controlled and managed from that if an assessee had several sources of income outside both in India and outside India, then the word 'wholly' will India, he could escape tax in respect of one or more of have no application and the entities would be considered those sources by claiming to be non-resident in respect of as a resident in India.74 such source or sources on the principle that an assessee is 2.4 Residential Status of Other Assessees entitled to have separate accounting periods of his choice under Section 6 (4) and 6(5) of Income in respect of each source of his income.
Section 6 (5) provides that there will be same residential status for all source of income the table 2 presents the Section 6 (4) provides provision with respect to the nature of income and its effects on residential Status . If an residential status of the other class of assessees. Section 6 assessee is resident in a previous relevant to any one (4) uses the expression 'person' which is defined under source of income, he is to be treated as resident for all section 2 (31) of the Income Tax Act, 1961. The definition sources of income for that assessment year. In other words, of 'person' is inclusive and it includes an individual, a HUF, to be non-resident, the assessee must be non-resident in a company, a firm, an association of persons or body of each of the previous years in respect of all source of individuals, a local authority and every artificial juridical Table 2 presents all categories of residential person. Hence section 6 (4) deals with the last three status according to nature of income in relation to classes of assesses viz, a body of individual, a local provision of Income tax Act, 1961. authority and an artificial juridical person.75 The reading of section 6 (4) provides that the test of determining the Table 2: Residential Status according to nature of Income in Relation
to Section 6 (4) and 6 ((5)of Income Tax Act, 1961
Nature of Income Ordinary Resident Not Ordinary Non Resident Income accrued in India Income deemed to be accrued in India Income received in India Income deemed to be received in India Income other than above but from a business controlled from India Income other than above (i.e. Income which has no relation with India) 73 Id.
74 ITO vs. Raza Textiles Ltd., (1977) 106 ITR 408 (All).
75 Supra note 12.
76 Supra note 12.
77 Arvind P. Datar, Kanga & Palkhiwala's The Law and Practice of Income Tax 319 Vol. 1 (Lexis Nexis Publication, 10 edn. 2013).
80 CWT vs. Shanmugam, (1985) 153 ITR 330 (Mad); See also Anil Kumar Jain, "Concept of Income under the Indian Income Tax Act"27 International Tax Review 307-08 (1999).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Determining the residential status is sine quo non for the The tax liability is also imposed on a company which is purpose of taxation. There are two types of taxpayer's viz. taxed depending upon its residential status. The first test is one who is resident in India and the other who is non- simply fulfilled depending on the mere fact of its registered resident in India. However, if they are earning income in office being in India. The other test required to be fulfilled India, then their income will be taxed as per the provisions needs to be established by proving de-facto control and of the Income Tax Act, 1961. As discussed above, management of the company in the Indian Territory to different tests are contemplated under this Act to establish its tax liability. Each entity is made liable for determine the residential status of companies, individuals, taxation depending upon its own established set rules and HUF, firms or associations of persons for the purpose of computing their tax liability.
Section 6 (2) of the Income Tax Act, 1961 involves two crucial expressions 'control and management.' The Tax liability can be determined by determining the residential status of the entities mentioned under section 6 residential status of an individual. It is an important (2) will be determined by the test of control and determinant since residence of an individual does not management of the affairs. The article has discussed the forever remain permanent. The term 'residence' has no meaning and ambit of control by mostly relying upon the correlation with citizenship. It is not necessary that a precedents of Indian Courts. However, the ambit of control person cannot be a resident in more than one country for will be determined with respect to the de facto control and the same assessment year. Thus, a person is a resident or a not the de jure control. Indeed there is requirement to non-resident is a question of fact and it is the duty of the construed the word control in strict sense for purposes of assessee to place all relevant facts before the income-tax taxation because of the involvement of financial aspect i.e. authorities, thus the onus of proof lies on the assessee. In payment of money in the form of tax. The tax authority order for a person to acquire the residential status in India, cannot levy tax on the person who is not actually he has to fulfil certain conditions and the onus is on the controlling the affairs in stricter sense.
assessee to prove those conditions to the income-tax 81 Ankita Gupta, "The Trends and Responsiveness of Personal Income Tax in India"IGIDR Proceedings4 (2009).
82 Girish Ahuja and Ravi Gupta, Concise Commentary on Income Tax 60 (Bharat Law House, 6 edn. 2005).
"Pragyaan: Journal of Law" Volume 5, Issue 1, June 2015 Our Contributors Dr. Gargi ChakrabartiAssistant Professor of Law, National Law University, Jodhpur.
Ms. Sonali KusumPh.D Scholar, National Law School of India University, Bangalore.
Mr. Divyesh ChoudharyStudent, B.A. LL.B.(Hons.), Second Year, Faculty of Law, Jamia Millia Islamia.
Ms. Sayantika GangulyStudent, B.A. LL.B.(Hons.), Second Year, Faculty of Law, Jamia Millia Islamia.
Ms. Tishta TandonStudent, B.A. LL.B., Second Year, Semester I, National Law University, Delhi.
Ms. Shrinkhala PrasadStudent, Third Year, Semester VI, Chanakya National Law University, Patna, Bihar.
Mr. Vikash GauravStudent, Third Year, Semester VI, Chanakya National Law University, Patna, Bihar.
Mr. Balwinder SinghPh.D. Scholar, Department of Law, University of Jammu, Jammu Dr. R. SeyonAdvocate & Notary Public, Sai Law Assocites, Mayiladuthurai, Tamilnadu.
Mr. Ashish PatelStudent, B.B.A. LL.B. (Hons.), Fourth Year, Semester IV, National law University, Odisha.
Ms. Shubhi GaurStudent, B.B.A. LL.B. (Hons.), Fourth Year, Semester IV, National law University, Odisha.
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