Position of Legitimate Expectation:

A Comparative Study

Seemeen Muzafar*
Altaf Ahmad Mir**

ABSTRACT

This paper throws light upon the position of new legal order which
has greatly influenced administrative process in other countries besides
India. This legal order is a latest entrant to the lengthened list of theories
invented by the courts for the review of administrative action.An attempt
has been made to study the comparative approach of this doctrine and
the instances of invocabilityof the theory of legitimate expectation
marches into function. It reflects that the role of legitimate expectation
comes into play when there is an express promise from public authority,
when there is regular practice of a certain thing, which claimant can
conceivably look ahead to persevere. In other words, it consists of either
inculcating expectation in the citizen or assuring him under certain rules
and schemes he would continue to garner certain benefits of which he
would not be deprived unless there is some superseding public interest.
It also reflects that the doctrine has been well accepted by the English
and Indian Courts but has been slow in its reception in Canada.
Keywords: Legitimate expectation, Administrative actions, Judiciary

Introduction

Indian Judiciary is admired for its pioneering and people friendly decision making.
In the field of applying the doctrine of legitimate expectation, Indian Courts are not
dawdling as other jurisdictions used to be. For instance, the principle of a substantive
legitimate expectation, i.e., expectation of favorable decision of one kind or another
has been conventional as a part of the English Law in several cases. However, this
doctrine has been discarded by the High Court of Australia and Canada but it has
been favored in Ireland. The European Court goes further and permitted courts to
apply proportionality and go into balancing the legitimate expectation and the public
interest.

*Ph.D Scholar, Department of Law, University of Kashmir
**Professor Department of Law, University of Kashmir

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Position ofLegitimateExpectation:AComparativeApproach

The doctrine of legitimate expectation provides that the statements of policy
or intention of the Government or its Department in administering its affairs should
be without abuse or discretion. The policy statement could not be disregarded unfairly
or applied selectively for the reason that unfairness in the form of unreasonableness
is akin to violation of natural justice. It means that said actions have to be in conformity
ofArticle14 oftheConstitution, of whichnon-arbitrariness is a second facet. Public
authority cannot claim to have unfettered discretion in public law as the authority is
conferred with power only to use them for public good. In the case of Food
Corporation of India vs. M/s Kamadhenu Cattle Feed Industries1, the appellant-
Corporation invited tenders for sale of stocks of damaged food-grains. The
respondentís bid was the highest. Since the appellant was not satisfied about the
adequacy of the amount offered even in the highest tender, it invited all the tenders
to participate in the negotiations, instead of accepting the highest tender. During the
course of negotiations, the respondent refused to revise the rates in its offer. On the
basis of the highest bid made during the negotiations, the appellant disposed of the
stocks of damaged food grains, rejecting the highest tenders. The respondent, whose
tender was the highest, challenged the decision of the appellants by filing a Writ
Petition before the High Court. It was contended that the action of the appellant
was arbitrary and hence violative of Art. 14 of the Constitution. The High Court
accepted the contention and allowed the Writ Petition. Being aggrieved by the High
Courtís decision the appellant-Corporation preferred the present appeal. It was
contended on behalf of the appellant that there being no right in the person submitting
the highest tender to claim acceptance thereof, and since all tenderers were given
equal opportunity to participate in the negotiations and to revise the bid before
acceptance, the action of the appellant was not arbitrary. The Respondent contended
that since no cogent reasons were indicated for rejecting all the tenders and for
deciding to dispose of the stock by negotiating with the tenderers for procuring a
higher price, such a decision was arbitrary. The court held that in contractual sphere
as in all other State actions, the State and all its instrumentalities have to conform to
Article 14 of the Constitution of which non-arbitrariness is a significant facet.
There is no unfettered discretion in public law. A public authority possesses powers
only to use them for public good. This imposes the duty to act fairly and to adopt a
procedure which is ëfairplay in actioní. Due observance of this obligation as a part
of good administration raises a reasonable or legitimate expectation in every citizen
to be treated fairly in his interaction with the State and its instrumentalities, with this
element forming a necessary component of the decision making process in all State

1 AIR 1993 S.C. 1601

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Position of legitimate expectation: A comparative study

actions. To satisfy this requirement of non-arbitrariness in a State action, it is
necessary to consider and give due weight to the reasonable-or legitimate
expectations of the persons likely to be affected by the decision or else that unfairness
in the exercise of the power may amount to an abuse or excess of power apart
from affecting the bona fides of the decision in a given case. The decision so made
would be exposed to challenge on the ground of arbitrariness. Rule of law does not
completely eliminate discretion in the exercise of power, as it is unrealistic, but
provides for control of its exercise by judicial review.

Doctrine of legitimate expectation doesnít play any role where the action
of the state or its instrumentalities is based on public policy. In A.P.M. Terminals
BV vs. Union of India2, the court held that the concept of legitimate expectation
has no role to play where state action is based on public policy and in the public
interest, unless the action taken amounted to an abuse of power. It is stated that the
Central Government is within its powers to adopt a policy to prevent the port facilities
from being concentrated in the hands of one private group or consortium which
could have complete control over the use of the facilities of the ports to the detriment
of the shipping industry.

Stateís policy to extend renewal of an agreement to selected industries which
came to be located in Madhya Pradesh on the invitation of the State, as against the
local industries was held not arbitrary and the selected industry had a legitimate
expectation of renewal under the renewal claims, as held by the Supreme Court3.
Three Judge Bench of Supreme Court laid down in National Building Construction
Corporation vs. Raghunathan4, the doctrine of ìLegitimate Expectationî has its
genesis in the field of administrative law. The Government and its departments, in
administering the affairs of the country are expected to honour their statements of
policy or intention and treat the citizens with full personal consideration without any
iota of abuse of discretion. The policy statements cannot be disregarded unfairly or
applied selectively. Unfairness in the form of unreasonableness is making to violation
of natural justice. It was in this context that the doctrine of ìLegitimate Expectationî
was evolved which has today become a source of substantive as well as procedural
rights. But claims based on ìLegitimate Expectationî have been held to require
reliance on representations and resulting detriment to the claimant in the same way
as claims based on promissory estoppel. This principle is very akin to
ìreasonablenessì and ìnatural justiceî.

A Constitution Bench of the Supreme Court in case of Secretary, State of
Karnataka v Umadevi referred to the circumstances in which the doctrine of
legitimate expectation can be invoked thus;

2(2011) 6 SCC 756
3 M.P. Oil Extraction vs. State of M.P (1997) 7 SCC 592.

4 (1998)1SCC66

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ìThe doctrine can be invoked if the decisions of the
administrative authority affect the person by depriving
him of some benefit or advantage which either (i) he
had in the past been permitted by the decision-maker
to enjoy and which he can legitimately expect to be
permitted to continue to do until there have been
communicated to him some rational grounds for
withdrawing it on which he has been given an
opportunity to comment; or (ii) he has received
assurance from the decision-maker that they will not
be withdrawn without giving him first an opportunity
of advancing reasons for contending that they should
not be withdrawn5.î

Therefore, what becomes clear is that legitimate expectations as a ground for

challenging administrative action can be done away with when there is an overriding

public interest and the state of affairs required a change in policy, moving away

from past promises and practice.
Another Constitution Bench in case of Confederation of Ex-servicemen

Associations vs. Union of India JT6 referring to the doctrine, observed;
ìNo doubt, the doctrine has an important place in the
development of Administrative Law and particularly
law relating to ëjudicial reviewí. Under the said
doctrine, a person may have reasonable or legitimate
expectation of being treated in a certain way by an
administrative authority even though he has no right
in law to receive the benefit. In such situation, if a
decision is taken by an administrative authority
adversely affecting his interests, he may have justifiable
grievance in the light of the fact of continuous receipt
of the benefit, legitimate expectation to receive the
benefit or privilege which he has enjoyed all
throughout. Such expectation may arise either from the
express promise or from consistent practice which the
applicant may reasonably expect to continue. In such
cases, therefore, the Court may not insist an
administrative authority to act judicially but may still
insist it to act fairly. The doctrine is based on the

5 2006 (4) SCC 1
6 2006 (8) SC 547

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Position of legitimate expectation: A comparative study

principle that good administration demands observance
of reasonableness and where it has adopted a
particular practice for a long time even in absence of
a provision of law, it should adhere to such practice
without depriving its citizens of the benefit enjoyed or
privilege exercised.î

The Supreme Court laid down a clear principle that claims on legitimate expectation
required reliance on representation and resultant detriment in the same way as
claims on promissory estoppel . In National Building construction Co. v. S.
Raghunathan7, The Court observed that though the government has the power to
change its policy in public interest yet the court can look into the question of
proportionality of change of policy and can see whether legitimate expectation has
been properly balanced against the need for change. However, Courtís discretion
must not transgress Wednesbury principle. Court cannot judge the merit of the
policy. Therefore, unless the change of policy is so outrageous that no sensible
person who had applied his mind to the question to be decided could have arrived at
it, court will not interfere because flexibility, necessarily inherent in this principle,
must not be sacrificed on the altar of legal certainty. In this case persons working
on deputation in Iraq were given 125% of basic pay as foreign allowance. After
revision of pay scales by the Fourth Pay Commission, this allowance was withdrawn.
The Court rejected the contention of violation of legitimate expectation on the ground
that peculiar situation prevailing in Iraq justified change in policy. Thus unless the
change of policy is clearly irrational or perverse, court will not interfere.

The Apex Court in Punjab Communications Ltd. v. Union of India8,
observed that legitimate expectations may be procedural and substantive both. The
procedural part of it relates to a representation that a hearing or other appropriate
procedure will be afforded before any change in decision is made. The substantive
part of the principle relates to the representation that a benefit of a substantive
nature will be granted or will be continued. Procedural legitimate expectation cannot
be withdrawn without giving a person some opportunity of advancing reason for
contending that it should not be withdrawn. In the same manner substantive
expectation cannot be withdrawn unless some rational grounds for withdrawing it
has been communicated to the person and on which he has been given an opportunity
to comment. The principle of legitimate expectation in the substantive sense that
the decision-making authority can normally be compelled to give effect to his
representation unless overriding public interest demands otherwise, has become
the part of Indian law, no matter it has still not been accepted in many jurisdictions.

7 (1998) 7 SCC592
8 (1999) 4 SCC 727

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On the other hand European Courts go a step further and try to balance legitimate
interest with the demand of public interest.

The plea of legitimate expectation still remains a very weak plea in Indian
administrative law. A claim for a benefit on the basis of legitimate expectation is
more often negatived by the courts. It is rarely that such a plea is found acceptable.

J. P. Bansal v. State of Rajasthan9is one more illustration of the negative approach
of the courts as regards the plea of legitimate expectation. Bansal was appointed as
the chairman of the Rajasthan Taxation Tribunal, a statutory body, for a term of five
years. The tribunal was abolished by the state legislature. Bansal lost his job before
the expiry of the five year term. Accordingly, he sought a mandamus from the High
Court directing the State Government to pay him compensation for the unexpired
portion of the term of his appointment. He pleaded legitimate expectation as the
basis of his claim. The Supreme Court rejected the plea.
Ordinarily speaking, there was basis for the application of the rule of
legitimate expectation. He was appointed for five years to a statutory office, and,
therefore, he had a legitimate expectation that he would remain in office for five
years. His expectation was cut short and, therefore, he could legitimately claim
compensation. But the Supreme Court took a different view of the matter.

Under Article 310(2), compensation is payable for premature termination
of contractual service. The clause is an enabling provision which empowers the
Governor to enter into contract with a specially qualified person providing for payment
of compensation where no compensation is payable, under the doctrine of pleasure.
In the absence of any specific term regarding compensation, it cannot be
countenanced that the intention was to pay it.

AbarereadingofArticle310(2)makes it clear that therecanbea stipulation
for payment of compensation in the contract to a person who is holding a civil post
under the Union or a State, if before the expiry of an agreed period that post is
abolished or he is, for reasons not connected with any misconduct on his part,
required to vacate the post. Being an enabling provision in the matter of payment of
compensation on the basis of a contractual obligation, it cannot be said that even
when there is no stipulation in a contract of employment, the same is implicit: Article
310(2) is only enabling provision. Article 310(2) however, applies to posts held
during the pleasure of the President/Government. But in J.P. Bansal the appointment
was made under a statute. Therefore, Article 310(2) had no relevance in the specific
situation.

As regards the plea of legitimate expectation, the court has pointed out that
the principle is still in an evolutionary stage. As a substantive principle, it envisages
that ìif a representation is made that a benefit of a substantive nature be granted or
if the person is already in receipt of the benefit that it will be continued and not be
substantially varied, then the same could be enforced.î

9 AIR 2003 SC 1405

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Position of legitimate expectation: A comparative study

But the government has freedom to change the policy. The court concluded:
ìThe principles of legitimate expectation have no application to the facts of the
present case.î

The court has not argued out convincingly as to why the principle of legitimate
expectation was not applicable to the facts of the case. The facts fall squarely
within the ambit of the principle as stated by the court itself. Appointment for a
fixed term is ërepresentationí by the government that the appointment would continue
to be effective for five years. It can also be regarded as a ëbenefit being enjoyedí
before termination. While no one denies that the government can change its policy,
it should be for the future. It should not affect the position of those who have been
assured that the status quo would be maintained for a time period. The doctrine of
ëlegitimate expectationí calls for an ëequitableí approach rather than a purely
ëlegalisticí approach. What, however, the court could have held was that, in the
present instance, legitimate expectation was cut short by a law and hence there
could be no remedy.

A claim based merely on legitimate expectation does not create a right in
itself unless itís been founded on sanction of law as was held in Union of India v.
International trading Co.10, the Supreme Court has observed that the change in
policy can defeat a substantive legitimate expectation if it can be justified on
ìWednesbury reasonableness.î The decision maker has the choice in the balancing
of the pros and cons relevant to the change in policy. The choice of policy is for the
decision-maker and not for the court. The legitimate substantive expectation merely
permits the court to find out if the change of policy which is the cause for defeating
the legitimate expectation is irrational or perverse or one which no reasonable person
could have made. A claim based on merely legitimate expectation without anything
more cannot ipso facto give a right. ìLegitimacy of expectation can be inferred
only if it is founded on the sanction of law.î

The court has observed that if a denial of legitimate expectation in a given
case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or
biased, gross abuse of power or violation of principles of natural justice, the same
can be questioned on the well known grounds attracting Article 14, but a claim
based on mere legitimate expectation without anything more cannot ipso facto give
a right to invoke these principles.

But it seems that the above quotation shows a confusion of ideas regarding
the concept of legitimate expectation. If a denial of legitimate expectation amounts
to a denial of a ëlegal right, as observed above, then what is the point of invoking the
concept of legitimate expectation? Denial of a ìlegal right guaranteedî is actionable
by itself. Similarly, if an administrative action is ìarbitrary, discriminatory etc.î, then
Article 14 comes into play ipso facto and then what is the need of bringing in the
concept of legitimate expectation?

10 AIR 2003 SC 3983

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What needs to be realized is that the concept envisages not merely
ìexpectationî but ìlegitimate expectationî which means that there is already
something super-added to just ìexpectationî some kind of assurance or representation
by the administration or the fact that the expectation has been recognized over a
period of time. What needs to be realized is that the concept is more of an equitable
nature rather than legalistic is nature. It also needs to be pointed out that ëWednesburyí
is being questioned in the common law world. The Wednesbury test was laid down
more than 50 years back and is becoming out of date and is giving place to the
broader test of irrationality. Therefore, the Indian courts need to come out of the
Wednesday groove.

The court has divided substantive legitimate expectation into two classes,
viz. (1) cases where the court may decide that the public authority was only required
to bear in mind its previous policy or other representation, giving it weight it though
fit, before deciding to change course. In such case, the court would review the
decision by applying the test of rationality. (2) Cases where the court may decide
that a lawful promise had induced a substantive legitimate expectation. Here the
court would decide whether the frustration of legitimate expectation was so unfair
that to take new and different course of action would amount to an abuse of power.

There is therefore a homogeneous public demand that the administrative
action must be fair, reasonable and non-arbitrary. This is an amplification principle
of natural justice. The doctrine of legitimate expectation has its genesis in the field
of administrative law. Precisely speaking, the government and its departments, in
administering the affairs of the country are expected to honour their statements of
policy or intention and treat citizen equally without any iota of abuse of discretion.
The policy statement cannot be disregarded unfairly or applied selectively. Unfairness
in the form of unreasonableness is akin to violation of natural justice. It was in this
context that the doctrine of legitimate expectation finds its origin. The emerged
concept of legitimate expectation in administrative law has now indubitably gained
adequate importance. It is pragmatic that legitimate expectation is the latest conscript
to a long list of concepts developed for the evaluation of administrative action. The
legitimate expectation would arise when there is an express promise give by a
public authority that there is a regular practice of certain thing which the claimant
can reasonably expect to continue. It therefore follows that the concept of legitimate
expectation consists in inculcating an expectation in the citizen that under certain
rules and scheme he would continue to enjoy confident benefits of which he shall
not be deprived unless there is some overriding public interest to deprive him of
such an expectation. This is a procedural right which in certain contingencies
becomes substantive right. It is fairly a safety value against the abuse of discretion
by the overzealous administrative authority.

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Position of legitimate expectation: A comparative study

Position of Legitimate Expectation in Britian

The doctrine of legitimate expectations has been developed in Britain over
the last thirty years. The following situations generate legitimate expectations and
lead to the implication of a duty of procedural fairness when a decision is at the
discretion of an administrative body. First, where the nature of the interest is such
that the person has a right to expect that the privilege will continue (as in, for
example, the case of a licence), a hearing of some sort is required before the
benefit can be withdrawn. Second, if the decision maker has made a representation
that a procedure will be followed in accordance with natural justice, this will be
respected. In addition, if there is a regular practice of giving an opportunity of
hearing or other procedure, this procedure will be accorded in the future. Lastly, if
a representation is made that a certain decision will be made or certain criteria will
be applied, the agency will be bound to accord natural justice to a person before
applying different criteria or making a different decision.11 Nevertheless, the British
cases have been careful to avoid specific definitions of what constitutes a legitimate
expectation, so there has never been a clear, coherent judicial definition of the legal
doctrine.

The first appearance of legitimate expectations was in the judgment of
Lord Denning M.R. in Schmidt v. Secretary of State forHome Affairs12The Home
Office, which administered the Aliens Order,1953, had a policy of according aliens
studying at a ìrecognized educational establishmentî a permit to live in Britain. The
plaintiffs had been admitted to study at the Hubbard College of Scientology and
were given permits to stay in the country for a certain period of time. The home
secretary, because of concerns about Scientology, announced that the college would
no longer be considered a ìrecognized educational establishment.î When the
plaintiffs applied for renewal of their permits, they were refused. They alleged that
this constituted a denial of natural justice, since they were not given an opportunity
of being heard before this decision was made. Lord Denning emphasized that,
since the plaintiffs were aliens, they were only entitled to remain in the country ìby
licence of the Crown.î He held that the duty to allow representations to be made
ìdepends on whether the plaintiff has some right or interest, or some legitimate
expectation, of which it would not be fair to deprive him without hearing what he
has to say.îIn this case there was no legitimate expectation because the permits
were for a limited time, which had expired. However, Lord Denning stated that the
plaintiffs would have been entitled to a hearing if their permits had been revoked
before they expired. Were this the case, they would have had a legitimate expectation
of being allowed to remain in the country for the time specified which would have

11 P.P.Craig,ìLegitimateExpectations:AConceptualAnalysisî(1992) 108 L. Q. Rev.79
at 82-85 [hereinafter ìConceptual Analysisî

12 [1969] 2 Ch. 149 (C.A.) [hereinafter Schmidt]

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entitled them to a hearing.With these comments, the doctrine was introduced into
British administrative law. Although the concept was not clearly defined, it was
held that a legitimate expectation triggered the right to a hearing and to the protections
of natural justice where a discretionary decision was being made. Lord Denning
outlined at least one situation where an expectation was legitimate, that was when
a permit or licence was given for a certain period and was withdrawn before its
expiry.

The doctrine was further developed in R. v. Liverpool Corporation, ex
parte Liverpool Taxi Fleet Operatorsí Association.13Although this decision was
also written by Lord Denning, the wordsîlegitimate expectationî never appear in
the judgment. It has nevertheless become accepted as a leading case on the doctrine.
The number of taxi licences in Liverpool had been limited by the countycouncil to
300 for some time. When the taxicab ownersí association heard that the council
was considering increasing the number of taxi licences, it expressed concern, and
received letters from the town clerk assuring it that there would be opportunities
for the taxicab owners to make representations and that ìinterested parties would
be fully consulted.î The taxicab owners were represented by counsel before a
meeting of a city council subcommittee, which did recommend an increase in the
number of licences. After the city council meeting which approved these minutes,
the subcommittee chair announced that the number of licences would not be
increased until national legislation, then pending, to restrict ìprivate hire cabsî was
in force. This undertaking was confirmed in a letter to the association. Nevertheless,
several months later, without informing the association, the committee and the city
council decided to begin increasing the number of licences almost immediately.
Although the owners asked for a hearing when theyindirectly heard about the pending
resolution, this was denied to them. The associationís demanded that the council
did not act on the resolution. Lord Denning held that because of their ìinterestî in
the number of taxi licences in existence it was the duty of the council to give them
a hearing before any change in the number of licences was authorized. In addition,
an undertaking was given following that hearing that the number of cabs would not
be increased until Parliamentís legislation was in effect. Lord Denning held that
this promise gave the plaintiffs a right to another hearing if a decision was to be
made contrary to it.

This establishes that if an undertaking has been given by a public body, it
cannot be changed without at least giving the affected person an opportunity of
being heard. The undertaking to which Lord Denning was referring was that the
number of licences would not be increased until Parliament had passed its legislation.
This was not a representation that a procedure would be followed, but a promise
that a policy being put into place would be respected. Lord Denning held that this

13 [1972] 2 Q.B. 299 (C.A.) [hereinafter Liverpool Taxi]

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Position of legitimate expectation: A comparative study

substantive promise could not be broken without giving the owners special procedural
rights.

Liverpool Taxi appeared to establish a broad basis for the concept of
legitimate expectations. The power to increase the number of taxi licences was a
decision based on public policy considerations, made by elected officials. Although
those who had taxicab licences before the decision were particularly affected, it
could be said that the decision also had the potential to have large effects on all the
citizens of Liverpool. It would affect the availability of taxis in Liverpool, perhaps
the prices of the cabs, traffic congestion, and so on.

Also the undertaking gave the taxicab owners more than just procedural
rights.14The statement that the ìoverriding public interestî must require the change
that suggests the discretion of the council to decide how many taxi licences there
should be in Liverpool had been limited by the undertaking and that because of it,
the council was required to justify any change in policy with a different standard.

It is interesting to contrast the decision in Liverpool Taxi with the decision
several months later in Bates v. Lord Hailsham of St. Marylebone15where the
plaintiffs sought to challenge a decision made by a committee (made up mostly of
judges) delegated by legislation with the power to set solicitorsí fees.Megarry J.
held that this decision was not subject to the duty of fairness, because it was
ìlegislativeî and was completely different from a city councilís licensing
power.However, Liverpool Taxi, the activist decision, has become one of the leading
British legitimate expectation cases, while Bates has been relatively ignored there
(although it still stands for the fact that legislative decisions are not generally
reviewable).It has, however, been widely accepted and cited.

In McInnes v. Onslow Fane,16another British lower court decision, a
somewhat different spin was put on the concept than in Lord Denningís decisions.
The plaintiff had applied to the British Boxing Board of Control for a boxing
managerís licence but had been refused without reasons or an oral hearing. Megarry

V.C. distinguished three types of cases involving licences or other cases where
ìrightsî were notinvolved. If there were a forfeiture or revocation of a licenceor
membership, the plaintiff was generally entitled, it was held, to the full range of
procedures of natural justice. At the other extreme, if what wasat issue were merely
an application for a benefit, there was no right to beheard although the decision
maker could not act capriciously or with bias. Megarry V.C. suggested that legitimate
expectations constituted an ìintermediate category.îThese arose, he suggested,
where someoneís licence or membership was up for renewal, or where it had been
granted informally but was waiting for confirmation.Thus, following this decision,
either the nature of the interest presently held (McInnes), or a representation or
14 P.P.Craig,ìSubstantiveLegitimateExpectationsin Domesticand CommunityLawî

(1996) 55 Cambridge L.J. 289 at 296 [hereinafter ìSubstantive Expectationsî].
15 [1972]3AllE.R.1019(Ch.D.)[hereinafter Bates].
16[1978]3 AllE.R.211(Ch.D.) [hereinafter McInnes]

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Vitasta Law Journal, Vol.3 No.3, 2017

statement (Schmidt, Liverpool Taxi) could give rise to an expectation.It is important
to note that these ìnature of the interestî situations would certainly be classified in
Canada as interests or privileges, though the British concept is more limited.

The Privy Council addressed the issue of legitimate expectations in
Attorney-General of Hong Kong. v. Ng Yuen Shiu.17This was the first to become
a common type of legitimate expectations case, where the expectation was of a
hearing itself. The government of Hong Kong had instituted what was known as a
ìreached baseî policy for illegal immigrants. If an immigrant from China reached
the urban areas of Hong Kong without being arrested the person was not deported.
However, because of an influx of illegal immigrants, the policy was changed and it
was announced that illegal immigrants from China wouldbegin to be deported. In
response to a petition from a group of illegal immigrants from Macau, an immigration
official read a statement outside government house which stated that illegal immigrants
from thatcountry would ìbe treated in accordance with procedures for illegal
immigrants from anywhere other than Chinaî. They will be interviewedin due course.
No guarantee can be given that you may not subsequentlybe removed. Each case
will be treated on its merits.îThe plaintiff, an illegal immigrant who had entered
from Macau, heard a report about this statement on television, after he had reported
to an immigration office to register. However, at his interview the next day, he was
only allowed to answer questions that were put to him, and was not allowed to
express what he felt were the humanitarian reasons he should stay. Lord Fraser
held that the statement that each case would be treated on its merits gave rise to a
legitimate expectation on the part of the plaintiff, who therefore had a right to bring
forward the reasons he should be allowed to stay. The governmentís promise of
treatment on the ìmeritsî constituted a promise of a fair procedure, one that would
give Ng the opportunity to ask the immigration official to use his or her discretion
and allow him to remain in Hong Kong.

A ìlegitimate expectation,î Lord Fraser held, was of a benefit that went
ìbeyond legally enforceable rights.îThis emphasizes the place of the doctrine in
determining whether a duty of fairness is owed. Though he did not give a complete
definition of the concept, he held that a representation by the responsible authority
was one way of generating such an expectation. Finally, he held that if the
representation ìconflicted with its dutyî the body would not be held to it.If the
representation made was ultra vires, the body would not be required to grant a
hearing when departing from it. Ng was also the first leading case in which the
terminology used was of fairness, rather than natural justice. Ng was not granted a
formal hearing in a case where he would have had no rights otherwise, but was
held to be entitled to put certain information before the person interviewing him
about his status. The courtís interpretation of the meaning of the representation that
Ng was given both established and defined the content of the duty of fairness owed
to him. This is particularly important, since it shows that the concept can have an

17 [1983] 2A.C.629[hereinafter Ng].

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Position of legitimate expectation: A comparative study

application other than as a threshold device. It is in this context that the doctrine
makes sense in Canada; although it should not be used to imply a duty of fairness,
it can be used to define what fairness requires in a particular case.

Also there was no requirement that Ng had relied or taken any action on
the basis of the representation that was made to him. He went to register at the
immigration office before he heard the statement on the news. Representations
give rise to legitimate expectations, this implies, not solely because people rely on
them, but because it is an important principle that public officials should not break
their promises. Anyone who has heard or knows of a representation is entitled to
raise it as a legitimate expectation.

Perhaps the most extensive application of the doctrine came in what is now
generally considered the leading case on legitimate expectations, in the House of
Lords in Council of Civil Service Unions v.Minister for the Civil Service.18 The
case involved employees of Government Communications Headquarters (GCHQ),
which was responsible for communications and intelligence functions for the
government. These functions were believed by the government to be vital to national
security. The several thousand people employed in this branch of the government
were represented by various national trade unions. As part of the national unionsí
action against the Thatcher government, several one-day strikes, work-to-rule
campaigns, and overtime bans were carried out by the unions working at GCHQ.
As a result of concerns about these job actions and their effect on national security,
Thatcher, who was also the minister for the civil service, announced that the workers
at GCHQ would no longer be entitled to belong to the national unions, and could
only belong to an approved staff association.This was done without any consultation
with the unions, despite the fact that in the past, changes in the civil servantsí
conditions of employment had been the subject of consultation. The unions argued
that they were entitled to a hearing before the decision was made. The unionsí
demand that the decision be quashed was rejected, but on the ground that the
government had demonstrated that national security was at issue. It was held that
consultation on withdrawing the unionsí right to strike would be risk provoking more
strikes that would affect the sensitive operations that took place at GCHQ.
Nevertheless, the Law Lords stated that were it not for this, the unions would have
been entitled to a hearing under the legitimate expectations doctrine. The legitimate
expectation arose from the practice of consultation that had existed since the
establishment of GCHQ whenever changes to ìconditions of serviceî were made.

Lord Diplock, in a well-known passage, held that legitimateexpectations
arise when a government body deprives a personof some benefit or advantage
which either (i) he had in the past been permitted by thedecision-maker to enjoy
and which he can legitimately expect to be permitted to continueto do until there

18 [1985]A.C.374(H.L.) [hereinafter GCHQ].

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Vitasta Law Journal, Vol.3 No.3, 2017

has been communicated to him some rational ground for withdrawing it on which
he has been given an opportunity to comment; or (ii) he has received assurancefrom
the decision-maker will not be withdrawn without giving him the opportunity of
advancing reasons for contending that they should not be withdrawn.

Although, again, a clear definition was not given, Lord Diplock emphasized
that a legitimate expectation was not simply one which a reasonable person would
entertain, but required something more to be ìlegitimate.î This analysis, though,
suggested that the only types of promises that could trigger the doctrine were those
of hearings (as in Ngand GCHQ), and minimized the possibility of promises of
substantive benefits giving rise to procedural rights (as, for example, in Khan).
LordFraserís view in the same case, however, was broader and did seem to
encompass the Khan situation.19It is Lord Diplockís narrower view, which has not
been generally followed in Britain that has taken hold in Canada. GCHQ is probably
most significant for its recognition that a regular practice of consultation could give
rise to a legitimate expectation.

Further, GCHQ shows how procedural fairness can be used to enforce a
duty on the government bodies to consult with certain groups before policy decisions
are made. Although at issue was a broad decision made for reasons of public interest
and policy, the unions and their members were particularly affected by the decision.

Position of Legitimate Expectation in Canda

There are certain cases in recent past whereby the doctrine of legitimate
expectation has been transplanted in Canadian Law also, adopting the thinking of
British Courts. But the doctrine has been applied in a perplexed way in Canada,
without accurate consideration of its compatibility with the Canadian duty of fairness.
It is argued in some quarters of judicial thinking that the doctrine should be applied
to find out what kind of fairness requires when statements or actions of a decision
maker have led the people to form a legitimate expectation.

The doctrine of legitimate expectations has been a much-discussed in
Canadian administrative law in recent years. In the late 1980s and the 1990s, in
particular, the doctrine was raised by plaintiffs in many cases, which emerged in a
variety of different legal and social contexts. Applicants argued that this British
concept, which, in that country, extends the situations in which the duty of fairness
is owed, should also apply in Canada.

The Supreme Court has accepted this argument and transplanted the doctrine
to Canada, although its judgments have also considerably restricted the situations in

19 C. F. Forsyth, ìThe Provenance and Protection of Legitimate Expectationsî
(1988) 47Cambridge L.J. 238 at 246-50.

14


Position of legitimate expectation: A comparative study

which it applies.20Commentators, too, have strongly supported the importation of
legitimate expectations, and have argued that the courts should use the doctrine to
expand the Canadian concept of fairness.21TheEnglish doctrine has been applied
without much consideration for the Canadian context, leading to ambiguity about
the role of the doctrine and legal effects. Legitimate expectations should not simply
be imported from British cases without modifications to use it to expand upon the
duty of fairness. Rather, its place in Canadian administrative law should be clearly
defined, distinguished from the British concept, and limited. Focusing on legitimate
expectations will restrict the development of the concept of fairness rather than
expanding it.

The Canadian concept of ìrights, interests, or privilegesî is broader than
the British concept of ìrights, interests, or legitimate expectations,î since there are
privileges that would not be classified as legitimate expectations. However, a
legislative decision that affects privileges is not subject to the duty of fairness in
Canada, while a legislative decision affecting legitimate expectations is subject to
review in Britain. Therefore, someone subject to an administrative decision who
had a privilege but not a legitimate expectation would have procedural protection in
Canada but not in Britain; someone subject to a legislativedecision who had a
legitimate expectation would have protection in Britain but not in Canada.

Several cases considered the application of the doctrine in the sense in
which it was originally developed in the British cases, as a device for determining
whether a duty of fairness was owed. In Re Webb and Ontario Housing
Corporation MacKinnon A.C.J.O. addressed theissue of whether a tenant facing
eviction from public housing wasentitled to be treated by the housing corporation in
accordance with theduty of fairness. In framing the issues, he stated that the plaintiff
hadargued that: ìeven if the Board of Directors was performing anadministrative
function, on the facts of this case there was a ëduty to actfairly,í and the appellant
had a ëlegitimate expectationí she would betreated fairly and this expectation was
not met.î22

In dealing with this argument, however, the decision did not refer to the
English legitimate expectation cases, nor was the phrase itself used again. Although
MacKinnon A.C.J.O. held that there was a duty of fairness, he did so by looking at
the nature of the plaintiffís interest under the then newly developing general duty of
fairness. By implication, Webb rejected the notion that a legitimate expectation was
necessary to establish a duty of fairness.

20 Old St. Boniface Residents Assn v..Winnipeg (City), [1990] 3 S.C.R. 1170

[hereinafter Old St.Boniface]

; and Reference Re Canada Assistance Plan (B.C,.)
[1991] 2 S.C.R. 525 [hereinafter CAP].
21 D.J. Mullan, ìCanada Assistance PlanóDenying Legitimate Expectation a
Fair Start?î(1993)7Admin. L.R.(2d) 269 [hereinafter ìFair Startî]
22 (1978), 22 O.R. (2d) 257 (C.A.) [hereinafter Webb], affíg (1977), 18 O.R. (2d) 427
(Div.Ct.).

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Vitasta Law Journal, Vol.3 No.3, 2017

The most important and often cited early Canadian case is Bendahmane

v. Canada (Minister of Employment and Immigration)23Bendahmane had come
to Canada on a visitorís visa, but was denied entry to Canada by an immigration
officer who believed he was not a ìgenuine visitor.î An inquiry confirmed this
finding, which Bendahmane appealed. As he was waiting for the appeal to be heard,
a program was announced to clear the backlog of refugee claimants, underwhich
special criteria would be used to consider their applications. Bendahmane obtained
a form letter stating that those waiting for an inquiry could apply for refugee status
before a certain date and be considered under this program. Although these criteria
did not apply to the plaintiff (since an inquiry had already been held in his case), he
applied for refugee status. He was then sent a letter stating that he didnnot qualify
for the backlog reduction program, but that his ìclaim for refugee status will continue
to be considered in the usual way.îThe minister later refused to consider his
application, however, since under the statute refugee claims could normally only be
made before the inquiry was held. The last sentence of the letter did not in fact
apply to his case, and the information in it was wrong. However, Bendahmane
argued that this representation created a legitimate expectation that his application
would be handled as other applications were, and that he was therefore entitled to
the full hearing that other claimants (who had made the request at the proper time)
received. The Federal Court of Appeal, in large part, accepted this argument.
Hugessen J.A., writing for the majority, held that the minister had not fulfilled the
duty to act fairly. He pointed out that although the statute set out the procedure for
the hearing of refugee claims (including the fact that they had to be filed before the
inquiry was held), the minister retained a discretion to hear them at other
times.However, he held that the more general question of whether the duty of
fairness applied to someone who claimed refugee status outside the normal time
limit did not arise in this case.He held, that the minister was obliged to consider
Bendahmaneís application, since the representations in the letter gave rise to an
expectation that his application would be considered. Since the representation did
not conflict with the ministerís statutory duty, it had to be honoured, and an order
was made that the minister consider the case ìin accordance with the rules of
fairness and the principles of fundamental justice.îMarceau J.A. dissented. He
held that this was not a proper casefor legitimate expectations, since the applicant,
in trying to force theminister to uphold his promise, was asking the court for
substantive,rather than procedural relief. He disagreed with the
majorityísinterpretation of the statute, and held that the minister was not ìentirelyfreeî
to disregard the procedure set out in it. He also held thatBendahmane should have
realized that the letter did not apply tosomeone in his position, so no legitimate
expectation arose.
23 [1989] 3 F.C. 16 (C.A.) [hereinafter Bendahmane]

16


Position of legitimate expectation: A comparative study

This case shows several important issues that recur in the Canadian
application of legitimate expectations. The majority, in my view, used the concept to
avoid deciding whether a duty of fairness was owed in ordinary circumstances to
someone who made an application for refugee status outside the statutory procedure.
Where legitimate expectations not applied, the court would have had to decide
whether, given that the statute permitted the minister to make a decision on a refugee
application outside the regular time frame, this exercise of discretion attracted the
principles of fairness. It would have been difficult for the court to hold that such a
decision was not a determination of a right, interest, or privilege, so fairness should
have applied in any case. The doctrine enabled the court to avoid making a decision
that would have required the minister to consider all applications made outside the
statutory procedure. Although the concept is supposed to lead to an expansion of
the duty of fairness, this decision was used to avoid a broad interpretation of the
duty. A subsequent plaintiff in Bendahmaneís position who makes an application
outside the time frame may well be required to show a legitimate expectation.
Legitimate expectation was used to find that a duty existed, but this was unnecessary.
As would occur in many later cases, the dispute between the majority and dissent
over issues such as whether the expectation was substantive or procedural, and
whether the expectation was ìlegitimateî obscured the real issues about when
fairness applies to exercises of discretion, and how the existence of another
procedure affects this. What the letter should have been used for , is to determine
what the content of the duty should beóperhaps fairness would normally only
require minimal procedures if an application was made outside the normal time
frame, but the letter meant that Bendahmane was entitled to the same procedure as
someone who applied within this period.

Another noteworthy case, where the doctrine was applied in a similar way
when the promise was of a substantive result, is Canada (A.G.) v. Canada (Human
Rights Tribunal). 24The content of the duty of fairness was strengthened because
of substantive promises made to the plaintiff. This case arose after the Canada
Human Rights Commission had received several complaints that thediscriminated
on the basis of sex because they were payable only to the female parent (unless the
male parent had sole custody or in exceptional circumstances)25. As part of a
settlement of one of the early complaints, the commission and the department agreed
that changes would be made to the program to allow the male parent to receive the
family allowance cheque in more situations, and the complaint was not sent to a
tribunal. Nevertheless, the commission later referred several similar complaints to

24 (1994), 76 F.T.R. 1 (F.C.T.D.) [hereinafter Family Allowance ]

25 Family Allowances Act (R.S.C. 1985, c. F-1) and Family Allowances
Regulations (CRC )1978 c.642

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Vitasta Law Journal, Vol.3 No.3, 2017

a human rights tribunal. Reed J. held that the earlier settlement had created a
legitimate expectation that later complaints about the same legislation would not
proceed. (Family allowances Reg. supra)The minister responsible for the legislation
was entitled to be consulted and given reasons why the earlier settlement was
being rejected before the complaints were sent to the tribunal. This, it is important
to note, is notwithstanding the fact that full trial-type procedures would have been
accorded when the merits of the case were decided at the tribunal level. Family
Allowances Regulations discriminated on the basis of sex because they were
payable only to the female parent (unless the male parent had sole custody or in
exceptional circumstances). As part of settlement of one of the early complaints,
the commission and the department agreed that changes would be made to the
program to allow the male parent to receive the family allowance cheque in more
situations, and the complaint was not sent to a tribunal. Nevertheless, the commission
later referred several similar complaints to a human rights tribunal.

Reed J. held that the earlier settlement had created a legitimate expectation
that later complaints about the same legislation would not proceed. The minister
responsible for the legislation was entitled to be consulted and given reasons why
the earlier settlement was being rejected before the complaints were sent to the
tribunal. This, it is important to note, is notwithstanding the fact that full trial-type
procedures would have been accorded when the merits of the case were decided at
the tribunal level. This case shows that it is also possible to use the existence of a
legitimate expectation of substantive criteria or a substantive result to determine the
content of the duty of fairness, even though this possibility has not found favour with
the Supreme Court. Although in this case the commission was not held to its representation,
the settlement was an important factor in determining what fairness required.
Justice Reed is correct in his reasoning. The commission’s representation to
the minister that the complaint was settled was as important as if it had been a
promise that the minister would be consulted or given reasons before a subsequent
complaint was sent to a tribunal. Although Reed J. did not give substantive effects to
the representation (the commission could refer the complaints to the tribunal), she
did hold that it mean that fairness required certain procedures that would not otherwise
have been necessary (giving reasons and consulting before it was referred
there). This approach combines well the principle that promises made by public
bodies are important and should not be broken with the broad and flexible characteristics
of the duty of fairness and its focus on procedural rights and protections.

Thus doctrine of legitimate expectations has had a perplexed maturity in
Canada, owing to its introduction from Britain without apt concern for the differences
in this country’s administrative law. The doctrine has been severely restricted,
but applied without proper regard to its place in Canadian law. It is demonstrated
how too much reliance on the concept may lead to restriction rather than expansion
of the duty of fairness.

18


Position of legitimate expectation: A comparative study

Position of Legitimate Expectation in U.S.A:

In United States of America, boundaries are set in stone. Perhaps, the country
where age old tradition of separation of powers is most respected, it is not surprising
that the judiciary seldom questions executive /administrative action.

Doctrine of legitimate expectation has not been adopted with such force in
USA as is adopted in English jurisprudence and by the Indian legal system. The
main reason for not adopting the doctrine of legitimate expectation is, perhaps the
rigidity of the concept of separation of powers.

In light of such water tight compartmentalization, one may conclude that
Executive power is unfettered and unchecked in USA. However, such a conclusion
would be wrong as the USA strongly relies on the doctrine of separation of powers
which is always qualified by the concept of checks and balances. Such checks and
balances are not only with respect to judiciary, executive and legislature but also
within the executive.

“Power corrupts, absolute power corrupts completely” is a wisdom Americans
have learnt well. Hence, executive is armed with the arsenal of imposing a
check on its own actions or actions of individuals acting in administrative capacity.
The beauty of the US approach is that, it maintains the Separation of Powers and
also puts a check on administrative action.

Instead of the judiciary, the executive itself imposes the checks and balances
through the Administrative Procedure Act. Therefore, unlike Britain, American
jurisprudence recognises the executive autonomy which is, of course, subject to
the checks and balances as may be imposed by the executive itself.

In view of legal philosophy of the American jurisprudence, it can be said
that the judiciary in USA has not been equipped with the arm of doctrine of legitimate
expectation to struck down the executive orders which violate the legitimate
expectation of people.

However the Fourth Amendment of the U.S. Constitution provides legitimate
expectation of privacy, “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” Ultimately, these words endeavor to protect two
fundamental liberty interests -the right to privacy and freedom from arbitrary invasions.

To sue regarding an alleged Fourth Amendment violation, the plaintiff must
have standing. Standing with respect to Fourth Amendment violations requires that
the plaintiff have had a legitimate expectation of privacy at the searched location. A

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Vitasta Law Journal, Vol.3 No.3, 2017

legitimate expectation of privacy must meet both the subjective and objective tests
of reasonableness. The subjective test requires that the plaintiff actually and genuinely
expected privacy, and the objective test requires that given the circumstances,
a reasonable person in the same or a similar situation would have expected privacy
as well. In Katz v. United States26 , the petitioner used a public telephone booth to
transmit wagering information from Los Angeles to Boston and Miami in violation of
federal law. After extensive surveillance, the FBI placed a listening device to the top
of the telephone booth and recorded the petitioner’s end of the telephone conversations
which was then used as evidence against him at his trial. The petitioner moved
to have the evidence suppressed under the Fourth Amendment of the Constitution,
and that motion was denied. The Court rejected the argument that a “search” can
occur only when there has been a “physical intrusion” into a “constitutionally protected
area,” noting that the Fourth Amendment “protects people, not places.” Because
the Government’s monitoring of Katz’ conversation “violated the privacy upon
which he justifiably relied while using the telephone booth,” the Court held it “constituted
a `search and seizure’ within the meaning of the Fourth Amendment. Consistently
with Katz, this Court uniformly has held that the application of the Fourth
Amendment depends on whether the person invoking its protection can claim a
“justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been
invaded by government action.

Application of the Fourth Amendment depends on whether the person invoking
its protection can claim a “legitimate expectation of privacy” that has been
invaded by government action as was held in Smith v. Mayland 27, in thiscase Patricia
McDonough began receiving “threatening and obscene phone calls from a man
identifying himself as the robber.” Police suspicion focused on Michael Lee Smith as
the robber. The telephone company, at police request, installed a pen register at its
central offices to record the numbers dialed from the telephone at [his] home. The
police did not get a warrant or court order before having the pen register installed.
The pen register revealed that on March 17 a call was placed from [his] home to
McDonough’s phone. On the basis of this and other evidence, the police obtained a
warrant to search [Smith’s] residence. The search revealed that a page in [his]
phone book was turned down to the name and number of Patricia McDonough; the
phone book was seized.

Arrested and indicted, Smith moved to suppress “all fruits derived from the
pen register” on the grounds that its installation and use was a warrantless search in
violation of the Fourth Amendment. The trial court denied the motion and a divided
Maryland Court of Appeals affirmed.

The Court began by reviewing Katz v. United States28 and noting that the

26 1389 U.S. 347 (1967).
27 2442 U.S. 735 (1979)
28 3389 U.S. 347 (1967)

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Position of legitimate expectation: A comparative study

standard used to implement Katz is the two-pronged test Justice Harlan enunciated
in his concurring opinion: (i) whether the individual has exhibited a subjective expectation
of privacyin the thing, place or endeavor; and (ii) whether society is prepared
to regard the individual’s subjective expectation of privacy, if any, as reasonable.
The Court found that Smith met neither criterion:

“Since the pen register was installed on telephone company property at the
telephone company’s central offices, petitioner . . . cannot claim that his “property”
was invaded or that police intruded into a “constitutionally protected area. Petitioner’s
claim . . . is that, notwithstanding the absence of a trespass, the State . . . infringed
a “legitimate expectation of privacy” . . . . [A] pen register differs . . . from the
listening device employed in Katz, for pen registers do not acquire the contents of
communications. . . .

The Court also (i) rejected Smith’s claim that he demonstrated a subjective
expectation of privacyby making the calls from his home, and (ii) held that even if he
could show such a subjective expectation, it is not one society would regard as
reasonable:

“Even if petitioner did harbor some subjective expectation that the phone
numbers he dialed would remain private, this expectation is not “one that society is
prepared to recognize as ‘reasonable.'” This Court consistently has held that a person
has no legitimate expectation of privacy in information he voluntarily turns over
to third parties.

Thus after going through American Administrative Law, it appears that US
Courts have not incorporated the doctrine of legitimate expectation into the US
judicial system. However, Administrative Procedure Act and other statutes have
laid down the framework within which the executive has to work.

Conclusion:

Thus legitimate expectation is now considered to be a part of principles of
natural justice. If by reason of the existing state of affairs, a party is given to understand
that the other party shall not take away the benefit without complying with the
principles of natural justice, the said doctrine would be applicable. The legislature,
indisputably, has the power to legislate but where the law itself recognizes existing
right and did not take away the same expressly or by necessary implication, the
principles of legitimate expectation of a substantive benefit may be held to be applicable.

21


Supreme Court Sagacity to Novartis: A Blow on
Corporate Pride and Boon to the Indian Pharmaceutical
Sector

Mir Farhatul Aen*
Mir Junaid Alam**
Mohammad Younis Bhat***

ABSTRACT

This paper traces the impact of 2005 Amendment of Indian Patent
Law on its pharmaceutical industry. It provides the example of a country
shaping its legislation to promote access to medicines by fostering
generic production. The high threshold for patentability is upheld,
generic production will continue to drive the price of life-saving
medicines down. Multinational pharmaceutical companies such as
Novartis will find it difficult to argue that routine improvements such
as new forms of existing medicines that results in improved stability,
enhanced bioavailability, increased solubility, improved flow properties
and lower hygroscopicity meet the efficacy requirements of Section
3(d) of Patent Act, 1970 (Indian). There is however need to strike a
balance between the investment on Research and Development and
public interest of access to life-saving drugs. In this regard, the Supreme
Courtís verdict in Novartis AG v. Union of India and Others (AIR 2017
SC 1311) holds primacy for various reasons and various adjectives
could be attached to the same. Under the constitution of India right to
health and right of access to affordable medicines is on the highest
pedestal. The right to access and afford medicines has remained an
elusive goal, mostly in developing countries like India. The states are
obliged to develop national health system to tackle the issues related
to access to medicines such as sustainable financing and affordability
of essential medicines; price and quality control; procurement practices
and procedures, supply chains, etc.
Key words: Patent, Generic Medicine, R&D, Novartis, Bayer, Pharmaceutical

Introduction

Knowledge has played a key role in human progress. This concept has
long been acknowledged by all the leaders world over in all walks of life. It is the

  • Contractual Lecturer, Department of Law, University of Kashmir
    ** Assistant Professor, Department of Law, University of Kashmir
    ***Research Scholar, Department of Law, University of Kashmir
    22
    Supreme Court Sagacity to Novartis : A Blow on Corporate Pride and Boon to the ……..

vitality of new and original knowledge and of creative expression of ideas which
has brought the role of knowledge, and consequently of the intellectual property
system, into lime light in recent years.

The modern intellectual property system has become an important tool for
harnessing the power of knowledge for development and this enhanced focus on
intellectual property. The present system of IPRs is under intense scrutiny from
multiple perspectives worldwide. The dynamics of economic, social, cultural and
political factors in a democratic dialogue and consensus-driven environment invariably
interface with and shape the future evolution of the intellectual property system.

Precepts of intellectual property (IP) have become powerful drivers of
economic growth. When linked to the development of human capital, these become
a dynamic combination in terms of stimulating creativity and innovation, generating
revenue, promoting investment, enhancing culture, preventing ìbrain drainî and
nurturing overall economic well-being. Yet, the evolution of the IP system has largely
remained relegated, till almost the last quarter of the previous century, to the realm
of legal and technical jargon, lending it an aura of complexity bordering on chaos for
some and mystification for others.1

Historically, the IP system has been divided into two main branches. One
branch deals with industrial property, mostly useful in commerce and industry,
comprising:

(a)
technical invention that provide new solutions to technical problems
and are registered as patents;
(b)
utility models also known as ìPetty Patentsî or ìutility innovationsî;
(c)
trademarks for goods and services;
(d)
commercial names and designations;
(e)
industrials designs or aesthetic creations determining the appearance
of industrial products or handicrafts;
(f)
geographical indications or indications of source and appellations
of origin; and
(g)
lay out designs of integrated circuits.
A second branch deals with copyright and related rights protecting literary
and artistic expression or works of culture, which, in the broadest sense, relate to
creative expression of ideas. 2

1 Shahid Alikhan and Raghunath Mashelkar, Intellectual Property and Competitive
Strategies in the 21st century, Second Edition, 2009, Kluwer Law International, p.205.

2 Copyright provides protection of literary, musical, artistic, photographic and audiovisual
works, computer programmes, software, multi media creations,etc., and in
many countries works of applied art, related rights, neighboringon copyright, protect
the rights of performing artists, producers of phonograms and broadcasting
organisations.

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Vitasta Law Journal, Vol.3 No.3, 2017

Copyright provides protection of literary, musical, artistic, photographic and
audio-visual works, computer programmes, software, multi media creations, etc.,
and in many countries works of applied art, related rights, neighboring on copyright,
protect the rights of performing artists, producers of phonograms and broadcasting.

The protection of confidential business information of commercial value,
often called ìtrade secretsî is also an important and distinct form of IP. The protection
of breederís rights in relation to new varieties of plants is another distinct form of
IP. An emerging contentious form of IP is that of non-original database rights.

Patent Applicability in Pharma Sector

Few topics in international intellectual property law have been highly
controversial in recent years. Among these patents are considered to be most
contentious. A patent is an exclusive right granted by the government Patent or IP
office to an inventor to prevent others from making, using, selling, distributing or
importing his new product or using his new process. This right is granted for a
limited period of time.3

A patent is now talked about much as a wonder boy, but it is still in its
infancy, compared to ownership, which has a far longer history. Although its origin
dates back to the Venetian Patent System in the 15th century, the patent started to
gain the significance as recognised today only after the emergence of factory-
based machine industry during the Industrial Revolution in the 18th century.

Patents, like other property, are assets. Patents as assets facilitate, among
other things, paying for the cost of creation, coordination of activities in the value
chain, and financing/investing in technology creation and entrepreneurship. Pharma
and IT represent two ends of the spectrum on how businesses rely on patents as
assets.4 Pharma relies heavily on patents as assets to benefit from innovation. Pharma
spends millions of dollars in research and development to create drugs and other
life science technology. Importantly, a small number of patents (frequently even
one patent) are usually sufficient to protect drugs and other life science products.
Accordingly, pharma relies on patents as assets to provide clear, brightline property
rights to facilitate both paying for the cost of creation and for investing and profiting
from technology development.5

3 Generally, there are three requirements for Patentability, viz., Novelty (new
characteristics, which are not prior art, that is, which do not form part of the existing

state of art, Inventive stepor Non-obviousness (knowledge being not obvious to one
skilled in the field) and Industrial applicability or Utility (inventions which ar susceptible
to industrial application).

4 Ryo Shimanami (ed.), The Future of the Patent System: Taking Stock and Looking
Ahead US Patent Law, Edward Elgar publishing limited, 2012, p.159.
5 Ibid.

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Supreme Court Sagacity to Novartis : A Blow on Corporate Pride and Boon to the ……..

Impact of WTO Patent Regime on Indian Drug Industry

The present paper seeks to highlight the impact of the WTO patent regime
on developing countriesí pharmaceutical industries especially India. Taken together,
the TRIPS Agreementís standards amounted to a veritable revolution in international
intellectual property law from which the research-based pharmaceutical industry
emerged as one of the biggest winner. Faced with a ìtake it or leave it decisionî, all
developing-country members of the WTO, including those with growing
pharmaceutical production capabilities, such as India, Brazil and eventually China,
agreed to respect relatively stringent worldwide norms of patent protection no later
than 2005.6 In return, these countries were given greater access to development
markets for traditional manufactured goods, plus a commitment of the developed
countries to stop imposing unilateral trade sanctions for allegedly inadequate
protection of foreign intellectual property rights (IPRs).7

Ironically, if the developing countries lost the war, in the sense that their
generic pharmaceutical industries could no longer freely reverse-engineer the costly
products of foreign research and development under the shield of domestic laws
that ignored pharmaceutical patents, they won a great battle with specific regard to
the question of compulsory licenses,8 which had triggered the drive for the TRIPS
Agreement in the first place.9 Thanks largely to the fortitude and analytical skills of
the Indian delegation, the right of governments to grant compulsory licenses on
virtually any ground including public interest, abuse or anti-competitive conduct, or
for non-commercial government use, among others issued stronger and clearer
from the TRIPS Agreement than had previously been the case under the Paris
Convention.10

Millions of people of all age groups die each year from infectious diseases,
tuberculosis, chest and respiratory disorders, wound suppuration becteremia,
diarrhoea/dysentery, lukemia, HIV/AIDS and many more, worldwide; and
additionally, millions chronically suffer from several long-standing infections. Most
of the sufferers come from the lower strata of the society. They deserve better

6 From this date on, developing countries were required to provide at least 20 years of

patent protection to a broad range of products, including pharmaceutical products,

and mail boxes with pending patent applications were opened and began being

processed, A few Least-Developed countries (LDCs) remain exempt from protecting

patents until 2017 and patents on pharmaceuticals until 2016.
7 Understanding on Rules and procedures Governing the settlement of disputes, April
15, 1994,33 ILM 1226, Art. 23 (1994) Available at http://www.wto.oveg/ english/tvatop-e/
dispu-r/dsu-e.htm.
8 Raman Mittal, Licensing Intellectual Property: Law and Management, Satyam Law
International, 2011, p.300.
9 Jerome H. Reichman, Compulsory Licensing of Patented Pharmaceutical Inventions:

Evaluating the Options, Research Handbook on the Protection of Intellectual Property

under WTO Rules, Intellectual Property in the WTO, Volume I, in Carlos M. Correa

(ed.), Edward Elgar publishing limited,2010, p.591.
10 Ibid.

25


Vitasta Law Journal, Vol.3 No.3, 2017

quality medicines for their treatment from the State and State-aided agencies. But
this practice has received a serious set-back due to amendments in Indian patent
Act in consonance with the TRIPS obligations. In other words this is the greatest
source of concern for India. The controversy has centered on the circumstances
under which a member state may invoke the in-built TRIPS safeguards or
ìflexibilitiesî to override patents for pharmaceutical products in order to provide
citizens with access to affordable generic versions of essential medicines for the
diseases aforesaid and other life-threatening diseases. The ambiguity over the
appropriate use of the TRIPS safeguards revolves around whether a public health
crisis constitutes a ìnational emergencyî, one of the few circumstances under which
the TRIPS Agreement allows a nation to override a patent. As the major reactors
of new technology, wealthy industrialised nations, especially the US, have used this
ambiguity to pursue the interest of US-based pharmaceutical companies, pressuring
nations suchas SouthAfrica,ThailandandBraziltoupholdtheir patents andrefrain
from employing the TRIPS safeguard measures.

In 2001, the WTO Members adopted a special Ministerial Declaration at
the WTO Ministerial Conference in Doha on ìThe TRIPS Agreement and public
Healthî11 to clarify ambiguities between the need for governments to apply the
principles of public health and the terms of the TRIPS Agreement. It was adopted
in the midst of growing concerns that patent rules might restrict access to affordable
medicines for populations in developing countries in their efforts to control diseases
of public health importance, including HIV, tuberculosis and malaria. The Declaration
has seven paragraphs. In the opening paragraph, the members recognised the gravity
of the public health problems affecting many developing and least-developed
countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other
epidemics, and recognised the need for national and international action to address
the issue.12 While acknowledging the role of intellectual property protection ìfor the
development of new medicinesî, the Declaration specifically recognises concerns
about its effects on prices.13 The Doha Declaration on TRIPS and Public Health
clarified the right of WTO members to use the TRIPS safeguards, thereby affirming
the sovereign right of governments to take measures to protect public health.14 The
Doha Declaration refers to several aspects of TRIPS, including the right to grant

11
Declaration on the TRIPS Agreement and Public Health, adopted on 14th
November 2001; See WTO Doc.WTO/MIN (01)/DEC/2, 20 November 2001
Available at < www.wto.org/english/the wto_e/minist_e/min 01_emindecl_TRIPS_e.doc>.

12
S.K. Verma, The Doha Declaration and Access to Medicines by Countries
withoumanufacturing capacity, Research Handbook on the Protection of Intellectual
Property under WTO Rules, Intellectual Property in the WTO, Supra note 9, p. 640.

13
N.B. Chandrakala, Patents, TRIPS and Public Health, The Law of Intellectual
Property Rights: Various Dimensions, in K. Uma Devi et al. (eds.), Regal
Publications, 2012, p. 142.

14
Hannah Murphy, The Making of International Trade Policy: NGOs, Agenda-
Setting and the WTO, Edward Elgar Publishing Inc., 2010, p. 121.

26


Supreme Court Sagacity to Novartis : A Blow on Corporate Pride and Boon to the ……..

compulsory licenses and the freedom to determine the grounds upon which licenses
are granted, the right to determine what constitutes a national emergency and
circumstances of extreme urgency, and the freedom to establish the regime of
exhaustion of IPRs.15WTO Director General Michael Moore stated that the TRIPS
and Public Health issue could be a deal breaker for a new round of trade negotiations.
After a great deal of debate among members including the African Group, razil,
India, and the US, members finally issued a Declaration that was mostly a result of
a compromise between

The average life expectancy across the globe has increased from around
30 years a century ago to over 65 years today. This has been made possible in large
part by modern medicine. Never before in history have humans had access to such
an array of medicines and devices to treat and ameliorate illness. These advances
have also created a new terrain of conflicts. While the knowledge required to promote
health has expanded enormously, paradoxically, so have the attempts to restrict
access to such knowledge.

The current regime of intellectual property rights (IPRs) seeks to exercise
monopoly control over the production and reproduction of knowledge. Consequently,
products to treat a range of diseases are denied to those who need them the most
merely because they cannot pay for them. It is denied to them not because these
medicines cannot be produced at a reasonable cost but because a few corporations
treat the knowledge as their property and sell these medicines at exhorbitant prices.
They also use the monopoly created by patents to prevent other companies from
producing and selling these drugs at much lower prices. Nothing illustrates this
better than the impact of the Human Immuno Deficiency Virus/Acquired Immuno
Deficiency Syndrome epidemic in Africa. In 2001, the annual cost of treating one
HIV/AIDS patient was $ 10,000. Some African countries would have had to spend
more than half their Gross Domestic Product to procure these medicines for those
who needed them. The tragedy is that these medicines need not have been so
expensive. In 2003, the Indian company Cipla finally stated selling the source
medicines at $ 250 per annum ñ at 1/40th the earlier cost. Even this price was high,
and the same drugs can be bought today at less than $ 100 for a yearís supply. 16

Compulsory Licensing of Generic Drugs and its LegalImplications in India

Since the Uruguay round of multilateral trade negotiations were initiated,
different authorities, stakeholders and interest groups in India have been analysing
the issue of intellectual property rights. The accompanying debate has mostly focused

15
WTO Director General Michael Moore stated that the TRIPS and Public
Health issue could be a deal breaker for a new round of trade negotiations. After a
great deal of debate among members including the African Group, Brazil, India, and
the US, members finally issued a Declaration that was mostly a result of a compromise
between the US and Brazil.

16
Amit Sengupta, Patents to Plunder, The Frontline, May 4, 2012, pp. 4,5.

27


Vitasta Law Journal, Vol.3 No.3, 2017

on changes to the patent regime that the TRIPS Agreement would create and the
implications that these changes would have on access to medicines.

This debate has a historical basis in India. One of the first laws that the
country took up for review after it become a sovereign state in 1947 was the patent
law. Two expert groups examined the patent regime existing at that time and the
Indian parliament considered the findings in depth. The culmination of this process
was the Patents Act of 1970, which is widely considered as the basis for the
development of a strong pharmaceutical industry in India.

India had one of the most progressive patent laws in the world. It was
precisely in this period that the domestic drug industry became a global force and is
now the third largest (by volume) producer of drugs in the world. The signing in
1994 of the World Trade Agreement (Uruguay Round) which became the World
Trade Organisation (WTO) in January 1995 marked Indiaís accession to a global
patent regime. Indiaís earlier law, the Patent Act, 1970, worked on a very simple
principle. It argued that patents would not be allowed in the two most vital areas of
human existence ñ food and health. New medicines could be manufactured by
Indian companies without hindrance. This is why Cipla was able to manufacture
and supply HIV/AIDS medicines at a fraction of the earlier prices. Much of this
enabling environment for Indian companies changed when India amended its Patent
Act in 2005 after completing the 10 years transition period allowed when India
signed the WTO agreement.17 However, parliament, while amending the Patent
Act to conform to the obligations set by the WTO agreement, introduced a number
of ìhealth safeguardsî. These were designed to mitigate the impact of a patent
regime that denied Indian companies free access to available knowledge.18 Indian
patent law by opening the door for compulsory licences for breaking up a patent
has provided an elixir for patients suffering from life-threatening diseases.

The longest struggle of India to ensure access to affordable medicines for
its people recently took a positive and interesting turn when the Controller General
of Patents concluded that in a physical sense Bayer, a German Pharmaceutical and
Chemicals giant, was not working the patents and not meeting the condition that the
publicís ìreasonable requirementsî with respect to the patented invention were
being satisfied.19 In principle, the right of the government to resort to compulsory
licensing can be invoked when the patent holder does not work the patent or does
so in a manner that is inimical to the public interest, leading to ìunreasonable pricesî,
inadequate technological progress, or inability to deal with public health or other

17 Id.at p.6.

18 Ibid.

19 Bayer is holding the patent to produce an anti-cancer drug Sorafenib Tosylate. At
present, Bayerís version of the drug costs rupees 2, 80, 000 a patient a month. Natco
will make the drug available at a cost of rupees 8, 800 a month, a 97 percen reduction on
Bayerísprice.SeeC.P.Chandrasekhar,ABigStep Forward,TheFrontline,May4,2012,p.10.

28


Supreme Court Sagacity to Novartis : A Blow on Corporate Pride and Boon to the ……..

emergencies.20 In early March, Just before demitting office, Controller General of
Patents passed an order on an application filed by Natco Pharma, headquartered in
Hyderabad, requesting a licence to produce an anti-cancer drug Sorafenib Tosylate.
Having failed to obtain a voluntary license for manufacture from Bayer, Natco had
filed an application under Section 84 of the Indian Patent Act, which specifies the
conditions under which a ìcompulsory licenceî (CL) may be issued to a producer
other than the patentee. One more boon for Indian pharmaceutical sector is the
decision of Supreme Court of India in Novartis AG v. Union of India and Others.21
The issues before the court were that what is the true import of Section 3(d) of the
Patent Act, 1970, how does it interplay with clauses (j) and (ja) of Section 2(1);
does the product for which the appellant claims patent qualify as a ìnew productî
which comes through an invention that has a feature that involves technical advance
over the existing knowledge and that marks the invention ìnot obviousî to a person
skilled in the art? These questions were debated at the bar intensely and at great
length. The debate took place within a very broad frame work. The court was
urged to strike a balance between the need to promote research and development
in science and technology and to keep private monopoly (called an ìaberrationî
under the constitutional scheme) at the minimum. Arguments were made about
Indiaís obligation to faithfully comply with its commitments under international treaties
and counter arguments were made to protect Indiaís status as ìthe pharmacy of
the worldî. The court was reminded of its duty to uphold the rights granted by the
statute, and the court was also reminded that an error of judgment by it will put lifesaving
drugs beyond the reach of the multitude of ailing humanity not only in this
country but in many developing and under-developed countries, dependent on generic
drugs from India.22 It was contended on behalf of the Union of India and the objectors
that the TRIPS Agreement coupled with the Doha Declaration leaves it open to the
Member States to adjust their respective patent systems by regulating the grant of
patents and to set up higher standards for patent protection for pharmaceutical and
agricultural chemical products. The Union of India and all the objectors maintained
that the patent law in India, as it stands today after major changes were brought

20 In March 2012, the Indian Patent Office issued a compulsory licence (CL) to the Indian
drug companyNatco PharmaLtd.forBayerísanticancerdrug ìSorafenibî.Sorafenib
has been shown to extend survival rates among those suffering from Hepatocellular
Carcinoma (liver cancer) and Renal cell Carcinoma (a form of kidney cancer).

21 AIR2017 SC 1311.

22 In case the appellantís product (Novartis AG) satisfies the tests and thus qualifies as
ìinventionî within the meaning of clauses (j) and (ja) of Section 2 (1), can its patentability
be still questioned and denied on the ground thatSection 3 (d) puts it out of the categoryof
ìinventionî? The answer to thesequestions depends on whether the appellant is entitled
to get the patent for thebeta crystalline form of a chemical compound called Imatinib
Mesylate which is a therapeutic drug for chronic mycloid leukemia and certain kinds of
tumours and is marketed under the names ìGlivecî or ìGleevecî.

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Vitasta Law Journal, Vol.3 No.3, 2017

about in the Patent Act, 1970 in 2005, is fully TRIPS compliant. But they insisted
that the Indian law must be judged and interpreted on its own terms, and not on the
basis of standards of patentability prescribed in some countries of the western
world. Here it is important to have a look on the strategy adopted by the forums
before whom the Novartis took its cause. The original patent on Glivec was filed by
Novartis in 1993 for the amorphous molecule of the chemical Imatinib Mesylate.
An amorphous salt is a mixture of different variants. In the late 1990s, Novartis
filed a fresh patent for the beta variant of the molecule, which is already present in
the amorphous salt patented earlier. It also claimed that the beta variety was better
absorbed in the body and was more stable. The 1993 patent was not recognised in
India as at that time Indian law did not allow the patenting of medicine. When the
law was amended in 2005, Novartis applied for a fresh patent for the beta variety
of the salt.23 The patent office refused a patent on a number of grounds. It said:

ìUnder section 3(d) a slightly modified version of a known
molecule could not be patented. Section 3(d) stipulates that
trivial changes in existing molecules cannot be candidates
for fresh patenting. Such trivial patenting (evergreening)
is an old ploy used by drug companies to extend their
monopoly. Companies first apply for a patent for the basic
moleculeand then attempt to extend the life of their monopoly
by applying for fresh patents after a few years on a slightly
different version of the original molecule.î

The case has implications not just for leukemia patients but for a whole range of
patients who are today able to access cheaper drugs made by Indian companies.
These patients are located not just in India but in over a hundred countries in Asia,
Latin America and Africa.24

In the same breath the Intellectual Property Appellate Board (IPAB) and
Madras High Court rejected the patent. The Madras High Court was right in

23 On the issue of Section 3 (d), there appears to be a major weakness in the case of the
appellant. There is no clarity at all as to what is the substance immediately preceding the
subject product,the beta crystalline form of Imatinib Mesylate. In the subject application
all the references are only to Imatinib in free base form (or to the alpha crystalline form
of Imatinib Mesylate in respect of flow properties, thermodynamic stability and lower
hygroscopicity). On going through the subject application, the impression one gets is
that the beta crystalline form of Imatinib Mesylate is derived directly from Imatinib
freebase. This may, perhaps, be because once the beta crystalline form of the
methanesulfonic acid salt of Imatinib came into being, the Imatinib free base got seeded
with the nuclei of Imatinib Mesylate beta crystalline form and, as a result,starting
fromImatinib one would inevitably arrive directly at the beta crystalline form of Imatinib
Mesylate.

24 Over80percentofallpatientsin developing countrieswhoconsumeHIV/AIDSmedicines
are able to do so because Indian companies supply them these medicines at affordable
rates.

30


Supreme Court Sagacity to Novartis : A Blow on Corporate Pride and Boon to the ……..

interpreting ìefficacyî to mean therapeutic efficacy, but its reasoning on this front
was rather peripheral and could have been stronger. It did not weigh in more
significantly on this theme, since the issue of interpreting efficacy was never directly
before the court. Rather it was adjudicating a constitutional issue.25 The court, in
this context, expressed some views on Section 3(d), which could arguably constitute
obiter and not the real ratio. The structure of section 3(d) as also its legislative
history supports a narrow reading of the term ìefficacyî.26 Illustratively, the
Explanation to Section 3(d) clearly states that all pharmaceutical derivatives would
be considered the same ìsubstanceî, unless ìthey differ significantly in properties
with regard to ìefficacyî.27 Ultimately, the controversy was set to rest by the
Supreme Court of India where it laid down that the ìefficacyî means the ability to
produce a desired or intended resultî. Hence, the test of efficacy in the context of
Section 3(d) would be different, depending upon the result the product under
consideration is desired or intended to produce. In other words, the test of efficacy
would depend upon the function, utility or the purpose of the product under
consideration. Therefore, in the case of a medicine that claims to cure a disease,
the test of efficacy can only be ìtherapeutic efficacy.îThe question then arises,
what would be the parameter of therapeutic efficacy and what are the advantages
and benefits that may be taken into account for determining the enhancement of
therapeutic efficacy? With regard to the genesis of Section 3(d), and more particularly
the circumstances in which Section 3(d) was amended to make it even more
constrictive than before the ìtherapeutic efficacyî of a medicine must be judged
strictly and narrowly. Further, the Explanation requires the derivative to ìdiffer
significantly in properties with regard to efficacyî. What is evident, therefore, is
that not all advantageous or beneficial properties are relevant, but only such properties
that directly relate to efficacy. In view of the findings the Supreme Court through
Aftab Alam J., held that the patent product, the beta crystalline form of Imatinib
Mesylate, fails in both the tests of inventions and patentability as provided under
clauses (j), (ja) of Section 2(1) and Section 3(d) respectively. Hence the appeals
filed by Novartis AG fail and are dismissed with cost.

The Novartis and Bayer cases highlight that the country is entering a new
era in which disputes on the publicís access to and the affordability of drugs will
become more frequent. The Supreme Courtís decision in Novartis case is a death

25 Was Section 3 (d) so vague and ambiguous as to violate Article 14 of the constitution?
26 Interview with Shamnad Basheer, Professor of Law, The Frontline, May 4, 2012, p.26.
27 TheExplanationtoSection3(d) wasadded bythe2005 Amendmentandprovides:Forthe

purpose of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle
size, isomers, complexes, combinations and other derivatives of known substance shall
be considered to be the same substance, unless they differ significantly in properties
with regard to efficacy.

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Vitasta Law Journal, Vol.3 No.3, 2017

blow on corporate pride and a sigh of relief for the millions of patients across the
globe who are suffering from deadly diseases.

Conclusion

Public health and availability and affordability of drugs and pharmaceuticals
is an issue of crucial significance. The public interest involved in it cannot be
overlooked. To give boost to this aspect of public interest involved in the life-saving
drugs to the patients who could not afford them the government can resort to the
system of compulsory licencing. It will curtail the exploitation of a patent holder
when his patent does not work or does so in a manner that is inimical to the public
interest, leading to ìunreasonable pricesî, inadequate technological progress, or
inability to deal with public health or other emergencies. While it is universally
admitted that patents have an important role in stimulating innovation and investment
but at the same time the patent system should provide a balance between the necessity
of suitable compensation for investors and the public interest of enabling people to
reap the benefits from new inventions. This balance is particularly important in
order to prevent an adverse impact on health through any unreasonable increase in
prices of drugs and pharmaceuticals with strong patent protection in cooperation
with other IP protection. Pharma and healthcare have become key sectors in the
growth of economy of many developed and developing countries but greed for
economic gains for making excessive profits should never come in the way of
generation, use and export of much cheaper drugs to various countries which are in
dire need of life saving drugs.

32


Judicial Overreach and Doctrine of Separation of Powers:
An Overview

Ali Mohammad Matta*
Fatima Shah**

ABSTRACT

The doctrine of separation of powers has once again come under
focus. The judiciary no more treats the doctrine as absolute and inviolable
and applies the judicial review tothe actions and inactions of the
executive. The executive under a feeling of insecurity considers the
judicial review of all its actions as a transgression into its constitutionally
assigned sphere of powers. This isparticularly so when in the changed
socio-economic scenario its sphere of activities has been extended
beyond its sovereign functions, and a tremendous increase has taken
place in the functions of the administration, where it desires an amount
of free hand. The judiciary on the other hand, feels that the chances of
abuse of power by the state agencies have increased with the expansion
of its sphere of functions and hence a device of checks and balances is
imperative throughthe instrument of judicial review. The debate has
recently resulted in confrontational outbursts between the executive and
the judiciary. The malfunctioning of the executive has rendered it
imperative for the courts to intervene.

An excursion into the essence and evolution of the doctrine of
separation power and the changed socio-economic and political
scenario becomes evident in order to have a meaningful appreciation
of the debate with a comparative analysis of the Indian, the English
and the American situation.

Key words: Speration of Powers, Judicial overreach, Laissez faire, rule of law.

Introduction

In recent times there has been observed a quest to overpower each other,
between the executive and the judiciary. The executive demanding the judiciary to
keep off the matters assigned to it by the Constitution, while the judiciary claiming
power of interference through judicial review. The former trying to caution that the
latter is transgressing its legal limits to intrude into the domain of the executive

*Professor of Law, Principal Vitasta School of Law and Humanities e-mail matta_ali @
hotmail.com
**LL.M, LL.B, University of Kashmir @ shahfatima186@gmail.com, FacultyMember,
Vitasta School of Law and Humanities

33


Vitasta Law Journal, Vol.3 No.3, 2017

while the latter in exercise of its power of judicial review, cautions the former to
observe constitutional propriety in its actions and inactions. The debate boils down
to the issue of separation of powers. The executive banks on the doctrine of
separation of powers to claim exclusive authority in its executive sphere. While the
judiciary refuses to accept the absoluteness of the doctrine. It is generally admitted
that the time tested doctrine of separation of powers in its absolute terms has lost its
utility. The stateís functions are no more confined to the areas of defense, internal
security and administration of justice as was the case when the doctre of separation
of powers was born. That was a time when the guiding social principle was Laissez
faire or non-interference in the affairs of the individual. With the changed economic,
social and political scenario of the country the principle of Laissez faire has lost its
utility. This is because the state of insecurity, social and economic inequality,
concentration of economic power in few hands and other ills of that nature have
prompted the state to act positively in order to ensure equity and justice. The state
has broken the shell of sovereign functions and embarked upon functions even in
the nature of trade. In its present role it grants or refuses to grant various kinds of
licenses and permissions, assigns jobs, confers advantages etc. This entails the use
of discretionary powers by the state. These non-sovereign functions are mostly
done by the executive organ of the State and in the process it also performs legislative
as well as judicial functions in as far as the making of rules and regulations and
settlement of disputes are concerned. Such comprehensively prevailing role of the
State is not without justification because the State has the responsibility to ensure
social, economic and political development, which puts it under a heavy responsibility
of policy making for overall national development. For the effective and purposeful
discharge of its responsibility the Constitution should not stand as a fetter because
the Constitution is means to an end but not an end in itself, which lies in the all-round
development of the nation where policies are evolved for the optimum narrowing
down of the socio-economic inequalities, where people enjoy life to its optimum
level and have opportunity to explore their talent. Hence, it is no denying the fact
that today due to the intensive form of government, there is a tremendous increase
in the functions of the administration as a facilitator, regulator and provider. At the
same time there are possibilities of abuse of power by the state organs. If these
new-found powers are properly exercised these may lead to a real socio-economic
growth and if abused these may lead to a totalitarian State.1 Against this backdrop
the prime function of judicial review is to check the abuse of administrative powers
and to enforce accountability on the operators of these powers.

In order to ensure fairness and justice in the performance of its functions
by the executive the role of judiciary assumes great importance, as the chances of

1 Lord Denning:Freedom Under The Law, 1949, p. 126, cited by I. P. Massey,
Administrative Law, (2008), Eastern Book Company, p. 403.

34


Judicial Overreach and Doctrine of Separation of Powers: An Overview

abuse of authority by the executive cannot be ruled out. This is amply born out by
the surfacing of the cases of misuse of power through corrupt practices and
favourtism shown by the executive in recent times. The underlying object of judicial
review is to ensure that the authority does not abuse its power and the individual
receives just and fair treatment as against ensuring that the authority reaches a
conclusion which is correct in the eyes of law.2 The Supreme Court in Minerva
Mills Ltd. v. Union of India3, has aptly observed that the Constitution has created
an independent judiciary which is vested with power of judicial review to determine
the legality of administrative actions and the validity of legislation. At the same time
a solemn duty is cast upon the judiciary itself under the Constitution to keep different
organs of the State within the limits of the powers conferred upon them by the
Constitution by exercising power of judicial review as sentinel on the qui vive. The
judiciary has exercised the power of judicial review not only on the ground of abuse
or over-action, gagged by the parameters of the Rule of Law, but also on the ground
of in-action or non-performance by the government. Such exercise of the power of
judicial review has been fortified by the apex court when it said that the courts in
India have not violated the mandatory constitutional requirement, rather they have
only issued certain directions to meet the exigencies. Some of them are admittedly
legislative in nature, but the same have been issued only to fill up the existing vacuum,
till the legislature enacts a particular law to deal with the situation. In view of the
same, it is permissible to issue directions if the law does not provide a solution of a
problem, as an interim measure, till the proper law is enacted by the legislature.4

The concept of doctrine of separation of powers

The doctrine of separation of powers has taken a central place in modern
constitutionalism. The clear perspective may be found in Article 16 of the French
Declaration of the Rights of Man, 1789:

ìany society in which the safeguarding of rights is not
assured, and the separation of powers is not observed,
has no constitution.î 5

Montesquieu is said to be the main author of the doctrine of separation of powers.
He based his theory upon the understanding of the mechanism of the British
Constitution.Writing in 1748, Montesquieu said:

ìWhen the legislative and executive powers are united
in the same person or in the same body of magistrates,

2 Sterling Computers Ltd. V. Union of India, (1993) I SCC 445.
3 AIR1980SC1787.

4
Chairman Rajasthan State Road Transport Corpn. &others v. Smt. Santosh &
othersAIR 2017 SC 2150.

5 See Eric Barendt, Seperation of Powers and Constitutional Government,Public
Law(1995), p. 599.

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Vitasta Law Journal, Vol.3 No.3, 2017

there can be no liberty, because apprehensions may
arise, lest the same monarch or senate should exact
tyrannical laws, to execute them in a tyrannical manner.
Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where
it joined with the legislative, the life and the liberty of
the subject would be exposed to the arbitrary control;
for the judge would be then a legislator. Where it joined
to the executive power, the judge might behave with
violence and oppression.î6

Thus, the doctrine was interpreted to mean that the three organs of the government
must be kept separate without any interference or control in the affairs of one
another, and that one organ of the government should not exercise the functions
assigned to any other organ. But it may be pointed out that in England, in reality, the
real separation of powers does not exist. The House of Lords combines judicial and
legislative functions. The judicial functions are exercised by specially appointed
Law Lords and other Lords who have held judicial office. The legislative and
adjudicating powers are being increasingly delegated to the executive. The time
has redefined the parameters of separation of powers and the judiciary has
successfully reined the executive in the exercise of its discretionary powers.

In America the doctrine of separation of powers forms the foundation of
the constitutional structure. The Constitution vests the legislative, executive and
judicial powers in the Congress, the President of the U.S and the Supreme Court,
respectively under Articles I, II, III. The Supreme Court has not been given power
to decide on political questions thus preventing it from interference with the exercise
of powers by the executive. No overriding powers of judicial review have been
given to the Supreme Court. However, it is a queer fact of American constitutional
history that the power of judicial review has been usurped by the court. American
constitutional developments have shown that in the face of the complexity of modern
government, strict structural classification of the powers of the government is not
possible. The President of U.S interferes with the powers of the Congress by
exercising his veto-power. He also exercises law making power in exercise of his
treaty making power. Presidents interference with the functioning of the Supreme
Court is obvious through the exercise of his power to appoint judges. The Congress
also interferes in the exercise of powers by the judiciary by passing procedural
laws, creating special courts and by approving the appointment of judges. Similarly
the judiciary interferes with the powers of the congress and the President through
the exercise of its power of judicial review. It is correct to say that the Supreme

6 ëThe Spirit of Lawsí(Trans Nugent), pp. 151-152, cited by Massey, Supra note 1 at p.

  1. 36
    Judicial Overreach and Doctrine of Separation of Powers: An Overview

Court oftheUnited States has mademoreamendments totheAmerican Constitution
than the Congress itself.

In India, the doctrine of separation of powers has not been accorded a
constitutionalstatus.Apart fromthedirectiveprinciplelaiddowninArticle50 which
enjoins separation of judiciary from the executive, the constitutional scheme does
not embody any formalistic and dogmatic division of powers. In Ram Jawaya Kapoor

v. State of Punjab7, the Supreme Court held that the Indian Constitution has not
indeed recognized the doctrine of separation of powers in its absolute rigidity but
the functions of the different parts or branches of the government have been
sufficientlydifferentiated.It wasalsoobservedbytheApexCourtthatin theIndian
constitution there is separation of powers in a broad sense only. A rigid separation
of powers as under the American Constitution or under the Australian constitution
does not apply to India.8
When the doctrine of separation of powers was put forth it was acclaimed
to be the corner stone of democracy. It gradually saw its adoption by more and
more countries till it was established as a reinforcement of the protection of peopleís
rights and a check on the executive authority of the State. Later, when the State
embarked upon public services of education, health, transport, building and
construction and other spheres of social development , the need was felt to give it
some leeway in these matters so that the social development of the State does not
suffer through confrontational judicial intervention at all stages. Although it created
an atmosphere of rapid socio-economic development, it also provided impetus to
the executive in widening the scope of its powers. The administrative agencies of
the State started carving a vast and comprehensive, unquestionable role for
themselves in the administration of the State. This development was more progressive
and speedier in countries like United States where the State administrative tribunals
were created whose powers included not only executive but also legislative and
judicial. This opened up greater chances of abuse of power by the State through
their administrative actions. The judiciary, therefore, took cognizance of such abuses
of power and formulated some rules based on fairness and justice on the touchstone
of the principles of natural justice, in order to ensure that peopleís rights are given
sufficient protection and are not sacrificed at the alter of separation of powers.

The present debate

Eventually the doctrine of separation of powers has been relaxed by giving
more powers to the executive under which administrative tribunals have been
established to deal with cases of disputes and complaints particularly with respect

7 AIR 1955 SC 549.
8 Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299.

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Vitasta Law Journal, Vol.3 No.3, 2017

to recruitment and conditions of service. In Indiathe cross contentions have
rejuvenated the debate over the doctrine of separation of powers in the context of
growth of administrative law in modern times so much so that on the 16 July, 2011
the government of India issued a strong statement of disapproval of the judicial
over stepping and the alleged attempt to take over the executive functions. The
government reminded the judiciary of its role under the Constitution and advised it
to remain within its limits rather than exhibit judicial overreach so as to intrude into
the domain of the executive. This, the government said was contrary to the settled
legal principle that the function of the court is to see that lawful authority is duly
exercised by the executive without taking over the tasks entrusted to it. This, it is
argued, also impinges upon the ever established principle that courtís do not interfere
with the economic policy which is the exclusive domain of the executive nor does
the court sit in judgment over the matters of economic policy which must necessarily
be left to the expert bodies.9

The conflict between the judiciary and the executive on the issue of
separation of powers viz-a-viz judicial review of administrative action is not a new
thing. This has been going on for a long time now. Its recent outburst was seen
when in 2007, the Prime Minister Dr. Manmohan Singh and the Chief Justice of
India, Justice K. Balakrishnan took conflicting view while speaking from the same
platform trying to shield their respective domains from being encroached on by the
other. While the Prime Minister suggested that the judiciary should not breach the
thin line dividing the two wings, the Chief Justice asserted that the perceived tension
between courts, legislature and the executive was a natural and inevitable corollary
of a healthy democracy.10

This is a critical issue and its significance lies not only in pinning the three
organs of the State to their constitutional role but also to consider the issue of non-
governance; its consequences and its control. Thus where the government has
failed to act the courts have promptly intervened. Constitutionalism with democracy
has raised peopleís expectation sky high. A sense of competence has been infused
in them to hold the government to its promise of good governance, fairness and
accountability. They cherish their liberty, peace and security. Unfortunately their
expectations have not been matched with sincerity and commitment at the hands of
the government. The rule of law has not been fully institutionalized. Discrimination,
favouritism and partiality by the State has brought despair in the society. This is
particularly so in the Afro-Asian countries where even a free and fair election,
accountability, transparency and urge for social welfare exists only for name sake.
India, which claims to be the worldís largest democracy faces the same dilemma.
The rule of law and democracy have not been fully institutionalized, for, all its major

9 articles.timesofindia.indiatimes.com/black-money-principles-that-suchtreaties-
judicialreview-Cached. Last visited 0n 09/08/2017.

10 http://sify.com/news/fullstory. Last visited on 04/09/2017.

38


Judicial Overreach and Doctrine of Separation of Powers: An Overview

institutions have failed to deliver, for the reason of political interference, rampant
and prevaiding corruption. It is in this backdrop that the role of the judiciary needs
to be redefined. The crucial question is whether the executive can be left alone in
its functions without accountability? Is it right for the executive to take shelter
under the doctrine of separation of powers in all cases of misgovernance and non-
governance? Should the judiciary be a mute spectator in every instance of failure
on the part of executive? Is the doctrine of separation of powers ever absolute,
admitting no exceptions? These questions demand a fresh overlook into the doctrine
of separation of powers and a comprehensive review of the powers of the executive
and the judiciary in the light of changed social, political and economic scenario of
the nation.

The conflict appears to have attained a high pitch in recent times as reflected
in some of the most recent pronouncements of the judiciary. In particular the Supreme
Court has clearly indicated that it is under duty to intervene in all cases of
misgovernance and non-governance by the executive from which it cannot abrogate.
In its most recent judgment delivered by the Supreme Court on 10 July, 2017 in the
case of Lily Thomas v. Union of India11, sub-sec 4 of Sec 8 of The Representation
of People Act, 1951 was declared as unconstitutional. The provision in question
allowed the Members of Parliament and of State Legislatures, who have been
convicted in certain criminal cases to continue as the members of their respective
Houses for three months provided that they file an appeal/revision against the
conviction within this time. On the filing of such appeal/revision the disqualification
is put in abeyance till the final disposal of the case by the court. This was a special
treatment given to the members of Parliament and State Legislatures as against the
ordinary citizens of the country. This also classified legislators into two classes i.e,
those who were convicted before elections and those who were convicted after
being elected. The Division Bench of the Supreme Court considered Parliament as
incompetent to enact different laws for disqualification of members who are
convicted after their election and those who are convicted before election. This
was treated as unreasonable as the Parliament has exceeded its power by legislating
Sec 8(4) of The Representation of People Act, 1951, which is ultra vires to the
Constitution. Parliament does not havethepower underArticle 102(1)(e)andArticle
191(1)(e) of the Constitution to make different laws for a person to be disqualified
for being chosen as a Member and for a person to be disqualified for continuing as
a Member of Parliament or State Legislature.

In yet another judgment of the same date in the case of Chief Election
Commissioner v. Jan Chowkidari, where the Supreme Court disqualified from
election persons in legal custody, convicted in criminal or other cases, from contesting
elections except those on bail. The Division Bench upheld the judgment of Patna
High Court (of 2004) wherein it was held that when a person in custody is disqualified

11 AIR2017 SC 2662.

39


Vitasta Law Journal, Vol.3 No.3, 2017

from voting, he or she must also be disqualified from contesting elections. These
two recent judgments of the apex court have agitated the government a great deal,
feeling that it is being deprived of its constitutional powers. A review petition was
filed in the Supreme Court against these judgment, which the Court rejected.12

As a sequel thegovernment brought twoAmendment Bills intheParliament
in order to undo the effect of these judgments of the Supreme Court. One Bill The
Representation of Peoples (Amendment validation) Bill 2017, to remove the bar
from convicted politicians for contesting elections has been passed by both Houses
of Parliament. The second Bill The Representation of Peoples (Amendment and
validation) Bill 2017, removing the bar from politicians in lawful custody from
contesting election has yet to be passed in Parliament.13 However, the Congress
Vice-President Rahul Gandhi sensed the pulse of the people and expressed his
anger against the ordinances which he termed as non-sense which deserve to be
ìtornî and ìthrown outî. Consequently the government reversed its move and the
Union Cabinet withdraw the Ordinance as well as Bill that sought to give protection
to convicted lawmakers.14

The recent Supreme Court judgments in redefining the parameters of the
doctrine of separation of powers have evoked mixed reactions. It has been argued
by many including some former members of the legislature that in its recent
judgments the Supreme Court has departed from the constitutional propriety. The
former Supreme Court Judge, Markandey Katju, who is presently the chairman of
the Press Council of India, argues that these judgments are not in consonance with
the earlier judgments of the apex court. He argues that that in the case of K.
Pbhakaran v. P. Jayarajan15 , the Supreme Court had held that the legislative
classification between the members of legislature and those who are not members
of legislature, as a reasonable classification as the same was based on a well laid
down differentia and had nexus with a public purpose sort to be achieved. In that
case the apex court felt that the exception of Sec. 8(4) of The Representation of
People Act, 1951, is founded on the factum of membership of the House, which
creates it into a different class. The purpose of carving out such an exception is not
to confer any advantage on any person but to protect the House. This protection
under this exception ceases to apply no sooner the House is dissolved or the person
has ceased to be the Member of the House. Treating such two persons differently
by any other interpretation would render Sec. 8(4) liable to be annulled as
unconstitutional as it would be arbitrary and discriminatory and incur the wrath of
Article 14. The Parliament has chosen to classify the candidates at an election into
two classes for the purpose of enacting disqualification. These two classes are-(1)

12 The Hindu, SC not to review ruling on convicted MPs/MLAs, September 5,

2017, p.1
13 The Hindu, Bill on convicted MPs hangs in balance, September 29, 2017, p.1
14 Greater Kashmir, Ordinance out, Bill trashed, October 3, 2017, p.1.
15 AIR2005 SC 688.

40


Judicial Overreach and Doctrine of Separation of Powers: An Overview

a person who on the date of conviction is a member of Parliament or of a Legislature
of a State, and (2) a person who is not such a member. The persons falling in the
two groups are well defined and determinable groups and therefore form two definite
classes. Such classification cannot be said to be unreasonable. Here the stress is
not merely on the right of an individual to contest an election or to continue as a
member of the House but the very existence and continuity of the House
democratically constituted. If a member of the House was debarred from sitting in
the House and participate in the proceedings, no sooner the conviction was
pronounced followed by sentence of imprisonment entailing forfeiture of his
membership, then two consequences will follow. Firstly, the strength of the
membership of the House shall stand reduced so also the strength of the political
party to which such convicted member belongs. The government in power may be
surviving on an razor edge thin majority where each member counts significantly
and disqualification of even one member may have a deleterious effect on the
functioning of the government. Secondly, by-election shall have to be held which
exercise may prove to be futile, also resulting in complications in the event of
convicted member being acquitted by the superior criminal court.16

According to Markandey Katju these judgments of the Supreme Court are
perceived as making or amending the law a function that is in the domain of the
legislature.17 The former Supreme Court judge refers to the case of Govt. of Andhra
Pradesh v. P. Lakshmi Devi18, wherein the apex court observed:

ìinvalidating an Act of legislature is a grave step and
should never be lightly taken. A court can declare a
Statute to be unconstitutional ënot merely because it is
possible to hold this view, but only when that is the
only possible view not open to rational questioníÖî

The other side of the picture is quite grim and calls for a relook into the legal
system. When RPA, 1951 was enacted India had just over thrown British rule and
became an independent nation. It was overwhelmed with patriotism and nationalism.
This was a time when the task of laying the future path for the nation was in the
hands of patriotic freedom fighters like M.K. Gandhi, J.L. Nehru, Subhash Chandra
Bose, A.K. Azad and others. Their politics was clean, honest and largely selfless.
These leaders had never imagined that a time would come when politics would be
corrupted in crime, deception, fraud and loot of public money. The laws made then

16 MarkandeyKatju, Crime Caste and Judicial Restraint, The Hindu, 17/07/2017.
17 Ibid.

18 (2008)4SCC 720

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Vitasta Law Journal, Vol.3 No.3, 2017

were suited to those times but are inadequate to cater to the needs of the present
day when politics has turned into disrespected and disreputed profession, abhorable
by every simple, honest and self-respecting person. Now that the words ëpoliticsí
and ëpoliticianí convey the meaning of corruption, dishonesty, crime, favourtism, it
is time that the rules of the game be changed and an attempt be made to prevent
criminals and dishonest persons from entering into politics. This degradation of
political ethics has its impact on the conscience of the judiciary which rose to the
occasion with a quest to cleanse the political system of the country of its impurities.
Hence a change of approach by the judiciary.

The argument that the judiciary has to stick to its earlier stand does not hold
water. There are numerous instances where the courts have changed their earlier
stance to suit the changed situation. For instance there has been a maze of cases
depicting the judicial shift from a conservative approach to a very liberal approach
in relation to the fundamental rights enshrined in the Part III of the Indian Constitution.
There was a time when the Part III was taken as a sacred part of the Constitution,
beyond amendability by the legislature. This approach gradually changed till all its
parts were held to be amendable except the basic features of the Constitution. The
right to property was once a fundamental right placed in Part III of the Constitution.
The socialistic policies of later times forced the State to remove this right from Part
III of the Constitution and to be regarded only as a constitutional right. Again on the
failing of socialistic policies, we adopted capitalistic approach. This is amply born
out by the fact of the policy of privatization of public sector such as education,
industry, construction, telecommunication, transport, electricity etc., and the opening
of industry to Foreign Direct Investment (FDI). Similarly, the right to life and liberty
guaranteed under Article 21 of the Indian Constitution was initially interpreted in a
literal sense and was conferred restricted meaning by the courts. However, with
the passage of time the Courts, in plethora of cases, have given a liberal and extended
connotation to the ìRight to Lifeî. The right basically implies a reasonable standards
of comfort and decency. It is to ensure all freedom and advantages that would go to
make life agreeable. By the term ëlifeí as here used something more is meant than
mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed.19 Thus the scope of ëright to lifeí stands
widened so as to include within its purview the right to live with human dignity20,
right to reputation21, right to livelihood22, right to live in unpolluted environment23,

19 Kharak Singh v. State of U.P, AIR 1963 SC 1295.

20 Francis Coralie v. Territory of Delhi , AIR 1981 SC746, Peopleís Union for
Democratic Rights v. Union of India, AIR 1982 SC 1473, Bandhua Mukti Morch v.
Union of India, AIR 1984 SC 802.

21 State of Maharashtra v. Public Concern for Governance Trust, AIR 2007 SC 777.

22 Olega Tellis v. Bombay Municipal Corpn., AIR 1986 SC 80.

23 M.C.Mehta v. Union of India, (2006) 3 SCC 399.

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Judicial Overreach and Doctrine of Separation of Powers: An Overview

right against noise pollution24, right to sustainable development25, right to education26,
right to social security and protection of the family27, right against honour killing28,
right to health and timely medical aid29.

In this regard the international policies and principles, globalization and the
tremendous advancement in information technology also have their contribution in
framing and reframing the national economic policies. These are but few instances
of changing policies guided by the need of time. As has rightly been said, ìnothing
is permanent than the changeî. Hence the argument that the judiciary cannot
change its earlier approach cannot sustain.

The same thing seems to be reiterated by the Supreme Court in the case of
Jyoti Prasad v. UT of Delhi30, that the standard of reasonableness must also vary
from age to age and be related to the adjustments necessary to solve the problems
which the communities face from time to time. In adjudging the validity of state
restriction the court has necessarily to approach the question from the point of view
of the social interest which the State action intends to promote. In this context the
change in political philosophy and politics in recent times, has necessitated the shift
in judicial approach. It is shocking to note that 162 of the 543 Lok Sabha members
and 1258 of the 4032 MLAs in State Assemblies, around 30% of the elected
representatives, have declared criminal cases against them which are at various
stages of trial.31 The Election Commission of India has welcomed the recent
judgments which bar jailed persons from contesting polls. The EC has termed it
landmark and historic verdict as it sends a strong message to criminals in politics.32
Recently the Election Commission of India has submitted to the Supreme Court
that a person against whom charges have been framed in a criminal case should be
barred from contesting polls. This, because the framing of a charge is done after
judicial scrutiny of the evidence and the court is prima facie satisfied about his
involvement in the crime.33

24 In Re Noise Pollution, AIR 2005 SC 3136.

25 N.D.Jayal v. Union of India, AIR 2004 SC 867.

26 Bandhua Mukti Morch v. Union of India, AIR 1984 SC 802, Mohini Jain v.
State of Karnatka, AIR 1992 SC 1858, Unni Krishnan v. State of A.P, AIR 1993 SV


  1. 27Calcutta Electricity Supply Corpn. (India) limited v. Subhash Chandra Bose, AIR
    1992SC 573 (MinorityOpinion).
    28 Sujit Kumar v. State of U.P, AIR 2002 NOC 265 (Allahbad).
    29 Mr. X v. Hospital Z, AIR 1999 SC 495.
    30 AIR1961 SC 1602, See also Pathermma v. State of Kerela (1978) 2 SCC 1,

P.P. Enterprises v. Union of India (1982) 2 SCC 33.
31 The Hindu, July 7, 2017, p.10.
32 Ibid.

33 Greater Kashmir, Charge sheeted person be barred from contesting polls,
August 20,2017, p.10.

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Other than these recent judgments of the apex court, the judiciary has
generally shown a stance of self-restraint and tried not to transgress into the area
which belongs to the other two organs of the State. For instance there has been a
plethora of cases where the judiciary reiterated the self-imposed discipline of judicial
restraint,34 and expressed its disapproval of exceeding its constitutionally assigned
role. In its most recent pronouncement on 15 July 2017, the Division Bench of the
Supreme Court (JJ.C.K. Prasadand V. Gopala Gowda) observed:

ìthe remedy against governmentsunreasonable policy
lies with people who can disappove it during election
while casting their votes. The court thus expressed
reservation in adjudicating policy decisions saying that
the court should maintain judicial restraint and should
not encroach upon legislative or executive domain
while adjudicating governmentís policy decisions and
should step in only when they are inconsistent with the
constitutional law.
We are conscious of the fact that there is wide
separation of powers between the different limbs of
the state and therefore, it is expected of this court to
exercise judicial restraint and not encroach upon the
executive or legislative domainî.35

Same feelings were reflected in Md. Murtaza & others v. State of Assam &
others36, when the apex court said that the State should not be hampered by the
court in dealing with evils at their point of pressure.All legislation, including delegated
legislation and executive action is essentially adhoc. Since social problems now a
days are extremely complicated, this inevitably entails special treatment for distinct
social phenomenon. If any (piece of) legislation or executive action is to deal with
realities, it must address itself to variations in society. The State must, therefore, be
left with wide latitude in devising ways and means of social control and regulation,
and the court should not, unless compelled by the law encroach into this field.

Further in the case of Union of India v. J.D. Suryavanshi37, the court
held that the courts should resist the temptation to usurp the powers of executive
into arenas which are exclusively within the domain of the executive. The court

34
State of Haryana v. Kashmir Singh (2010) 13 SCC 306, East Coast Railway v.
Mahadev Aparao (2010) 7 SCC 678, Tata Cellular v. Union of India AIR 1996 SC11,
State of Jharkand v. Ashok Kumar Dongi (2011) 13 SCC 383, Asif
Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1901, Monarch
Infrastructure (P) Ltd. V. Commissioner Ulhas Nagar Municiapal Corpn. (2000)
5SCC 287, W.B. SAB v. Patel Engineering Co. Ltd. (2001) 2 SCC 451.

35 Kashmir Reader,July16,2017,p.4.
36 (2011)12 SCC 413atPara15.JJ.MarkandeyKatjuand C.K.Prasad.
37 (2011) 13 SCC 167

44


Judicial Overreach and Doctrine of Separation of Powers: An Overview

should not interfere in matters of policy or day today functioning of the departments
of the government or statutory bodies.

The courts appear to have taken the que from the dissenting opinion of
Frankfurther J. of the U.S Supreme Court in the controversial expatriation case of
Trop v. Dulles38,where he observed as under:

ìAll power is, in Madisonís phrase, ìof an encroaching
natureî. Judicial power is not immune against this
human weakness. It also must be on guard against
encroaching beyond its proper bounds and not less so
since the only restraint upon it is self-restraint.

On the one hand therefore, the courts are conscious of their duty of judicial restraint
but on the other hand the courts are also conscious of the general presumption
against ousting the jurisdiction of the courts, so that statutory provisions which
purport to exclude judicial review are construed restrictively. Even in certain areas
of governmental activity relating to national security, which is generally considered
as non-justiciable, judicial review is not entirely excluded, but very limited. Same is
true in matters of government policies where again the courts have a limited role
requiring them to interfere only when it is clearly illegal.39With the question whether
a particularly policy is wise or foolish, a court is not concerned, it can only interfere
if to pursue it is beyond the powers of the authority.40

In the case of Kumarin Shrilekha Vidyarthi v. State of U.P41, the Supreme

Court referred to Prof. Wadeís Administrative Law42 to the following effects:
ìFor the same reason there should in principle be no
such thing as unreviewable administrative discretion,
which should be just as much a contradiction in terms
as unfettered discretion. The question which has to be
asked is what is the scope of judicial review and in a
few special cases the scope for the review of
discretionary decisions may be minimal. It remains
axiomatic that all discretion is capable of abuse and

38 (1958) 356 US 86
39 Md. Murtaza & others v. State of Assam & others, (2011) 12 SCC 413 at p. 417.
40 Union of India v. S.B. Vohra (2004) 2 SCC 150 at p. 163.
41 (1991)1 SCC 212.
42 6th Edition, p. 401.

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Vitasta Law Journal, Vol.3 No.3, 2017

that legal limits to every power are to be found
somewhereî.

In sum, judicial review is there to remain in the midest of the doctrine of separation
of powers. It admists of change in its operability but not in its substance. Judiciary
is the institution to invoke the activities of the executive as well as the legislature so
as to ensure fairness and justice and caution the other two limbs of the state against
their inaction and overaction.

Conclusion

The doctrine of separation of powers was evolved with a view to prevent
the state from becoming despotic and subject the citizens to tyrannical laws. The
functions of the three organs of the state were constitutionally assigned to them,
prohibiting one from interfering in the sphere of authority of the other. However,
with the tremendous increase in the powers and functions of the executive, the
possibilities of its abuse of power have multiplied. Cases of abuse of executive
authority of the state are on an increase with miss-appropriation of the state resources
by the people in power, violation of peopleís rights and an utter disregard for the
rule of law. In such a scenario, the judiciary has realized its basic constitutional
obligation of protection of the rule of law, safeguard of the natural resources as well
as the basic rights of the citizen. The courts have cautioned the executive not only
against its wrong actions but also its inactions detrimental to the interest of the
people and the nation. The device of judicial review has proved to be effective in
alarming the executive in the event of its misdeeds and taking appropriate action in
such cases.

In UK no absolute separation of powers between the three organs of the
state is noted. In the U.S, although no overriding power of judicial review rests with
it, the Supreme Court has gradually usurped these powers. No strict structural
classification of powers of the government has been possible in view of the
complexity of the modern government. In India too, the doctrine of separation of
powers has not been conferred any constitutional status. Assuming that the doctrine
of separation of powers is nurtured and applied in India, it has to be realized that no
absolute constitutional rule can be evolved, which holds good for all times. Change
of circumstances obligates us to moderate and modify the law.

Constitution is a means to an end rather than an end in itself. Its historical
devices shall take new shapes and dimensions according the changed socio ñ
economic and political scenario of the country. In view of the abuse of authority, the
instances of which have shown an increase in recent times, the judiciary is within
its duty to invoke its power of judicial review in order to keep a check on such
abuse of authority and miss management of the affairs of the state. Above all, the
administration of the state has to be in competent, honest and patriotic hands that
are fair and have respect for the rights and interests of the people. Judicial review
serves as a device to ensure compliance to these norms.

46


Protection of Childrenís Rights: An Overview of
International Legal Framework

Shabina Arfat*
Beauty Banday**

ABSTRACT

The concept of childrenís rights has widened and the international mandate
to reinforce the rights of the child has grown over the years, with the mounting
evidence of hardship and abuse suffered by the children. The international
community responded to the plight of children and developed an inspiring
legal framework for a comprehensive development of children all over the
globe. The most important task of the legal system was to make this tender
section of the society free from exploitative attitudes and actions of the people
which has resulted in creating evils, and reorient the whole legal systems
towards building the capacity of the potential human resources and make
way for real social progress. With the passing of years many perceptions
have changed and new ideas have emerged. The principles outlined in the
international human rights framework apply both to children and adults.
Children are mentioned explicitly in many of the human rights instruments;
standards are specifically modified or adapted where the needs and concerns
surrounding a right are distinct for children. However, specifically vulnerable
groups such as children have been assigned special protection by the UN
legal framework.

Keywords: International law, rights of children, vulnerable children, United Nations

Introduction

Millions ofchildren around the world are growing up without one or both
oftheirparents.Someofthemhavelosttheirparentsto illnessorwar,but most of
themare separated from their parents for example due to armedconflicts or natural
disasters, or they are removed from their families because of abuse or neglect,
alcohol and drug abuse, or teenage pregnancy.1 Orphans and vulnerable children

*Ph.D Scholar, FacultyofLaw, UniversityofKashmir,Hazratbal, Srinagar,Kashmir.
**Associate Professor, Faculty of Law, University of Kashmir, Hazratbal, Srinagar, Kashmir.

1 Children without Parental Care, Child Protection Information Sheet, May 2006, UNICEF,
http://www.unicef.org/, accessed 2017.

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Vitasta Law Journal, Vol.3 No.3, 2017

are deprived of their first line of protection.2 Reasons include having temporarily or
permanently, lost their caregivers or guardians; lost contact with their caregivers

e.g. street children, unaccompanied displaced or refugee children; been separated
from their parents e.g. where parents are detained or children are abducted; been
placed in alternative care by their caregivers e.g. children with disabilities or children
from poor families who are placed in institutions; been kept in prolonged hospital
care e.g. on grounds of health status, such as HIV status; been detained in educational,
remand, correctional or penal facilities as a result of an administrative or judicial
decision e.g. suspected or convicted offenders or child asylum seekers.3 It is estimated
that 121,000,000 children worldwide do not attend school and that the majority of
such children are young girls.
According to the UNICEF, orphans are less likely to be in school and more
likely to be working full time.4 School food programmes, including take-home rations,
in developing countries provide strong incentives for children to remain in school
and continue their education. Financial barriers, such as school fees and other costs
of education, prevent many orphans and other vulnerable children in developing
countries from attending school. Providing children with free primary school
education, while simultaneously ensuring that adequate resources exist for teacher
training and infrastructure would help more orphans and other vulnerable children
obtain a quality education.

The United Nations Convention on the Rights of the Child describes the
biological family as ìthe fundamental group of society and the natural environment
for the growth and well-being of all its members, particularly childrenî and
acknowledges the responsibility of parents for the upbringing of children. However,
it also recognizes that being with his or her family may not always be in the best
interest of the child. For these cases, the Convention states that children without
parental care have a right to be placed in suitable, quality alternative care.5

Childrenís Rights and International Law

The protection of childrenís rights under international treaty law can be
traced back to the first ëDeclaration of the Rights of the Childí adopted by the
League of Nations in 1924, which was a brief document containing only five principles
by which members were invited to be guided in the work of child welfare. An
extended version of this text was adopted by the General Assembly in 1948. General

2 UNICEF ñ ìChild protection from violence, exploitation and abuse – Orphans
and vulnerable childrenî, http//www.unicef.org, accessed 2017.

3 Ibid

4 http:// www.unicef.org, accessed 2017.

5 Rights for children without parental care; http://www.sos-chilsrenvillages.orgpages/
default.aspx, accessed 2017.

48


Protection of Childrenís Rights: An Overview of International Legal Framework

Assembly passed the Universal Declaration of Human Rights, which refers in article
25 to childhood as ìentitled to special care and assistanceî. In 1959, UN General
Assembly adopted the Declaration of the Rights of the Child, which recognizes
rights such as freedom from discrimination and the rights to a name and nationality.
It also specifically enshrines childrenís rights to education, health care and special
protection. In 1966, The International Covenant on Civil and Political Rights, and
the International Covenant on Economic, Social and Cultural Rights were adopted.
The covenants advocate protection for children from exploitation and promote the
right to education.

In 1973, The International Labour Organization adopted Convention No.
138 on the Minimum Age for Admission to Employment, which sets 18 years as the
minimum age for work that might be hazardous to an individualís health, safety or
morals. In 1979, the UN GeneralAssembly adopted the Convention on the Elimination
of All Forms of Discrimination Against Women, which provides protection for the
human rights of girls as well as women. It also declared 1979 as International Year
of the Child, which set in motion the working group to draft a legally binding
Convention on the Rights of the Child. Also in 1978, a proposal for a new convention
on childrenís rights was made by Poland6, which had consistently raised issues with
regard to childrenís rights being binding.7 Polandís draft, with minor amendments,
served as the basis for the 1989 Convention on the Rights of the Child (CRC). The
reasons for an international change of heart towards the protection of childrenís
rights were manifold but all signatories fundamentally recognized that the ë1959
Declaration on the Rights of the Childí no longer reflected the needs of many of the
worldís children. In 1989, the UN General Assembly unanimously approved the
Convention on the Rights of the Child, which entered into force in 1990. Although
legal instruments were developed that targeted the protection of children in particular,
it has to be emphasized that basic human rights instruments already recognize these
rights.

The so-called ëInternational Bill of Human Rightsí contains broad bundle of
human rights also applicable to children, and many of its principles are reflected and
substantiated in children-specific legislation. Children enjoy protection by way of
general human rights provisions, and their relevance should not be underestimated.
The Universal Declaration of Human Rights, as the most prominent and fundamental
UN human rights document, provides in its Article 25 that childhood is entitled to
special care and assistance. Furthermore, the UN International Covenant on Civil
and Political Rights, a legally binding document which came into force in 1978,
contains provisions specifically referring to children.8 The Human Rights Committee

6 Detrick, S . 1992. The United Nations Convention on the Rights of the Child: A guide to
the ìtravaux preparatoiresî, Leiden: Martinus Nijhoff Publishers.

7 Van Bueren, G. 1995. The international law on the rights of the child, The Hague:
Martinus Nijhoff Publishers

8 Articles14(1), 23(4) and 24.

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Vitasta Law Journal, Vol.3 No.3, 2017

has emphasized that ñ ìÖ the rights provided for in Article 24 are not the only ones
that the Convention recognizes for children and that, as individuals, children benefit
from all of the civil rights enunciated in the Covenantî.9

The ë1990 World Summití for Children adopted the ëWorld Declaration on
the Survival, Protection and Development of Childrení along with a plan of action
for implementing it in the 1990s. In 1999, the International Labour Organization
adopted Convention No. 182 concerning the ëProhibition and Immediate Action for
the Elimination of the Worst Forms of Child Labourí. In 2000, the UN General
Assembly adopted two Optional Protocols to the Convention on the Rights of the
Child: one on the involvement of children in armed conflict, the other on the sale of
children,childprostitutionandchildpornography. In2002,theUNGeneralAssembly
held a Special Session on Children, meeting for the first time to specifically discuss
childrenís issues. Hundreds of children participated as members of official
delegations, and world leaders committed themselves to a compact on child rights,
ëA World Fit for Childrení. In 2007, the five year follow up to the UN General
Assembly Special Session on Children ended with a Declaration on Children adopted
by more than 140 governments. The Declaration acknowledged progress achieved
and the challenges that remained, and reaffirmed commitment to the World Fit for
Children compact, the Convention and its Optional Protocols.

The ëInternational Covenant on Economic, Social and Cultural Rightsí
contains several child-specific provisions10, with a focus on the right to education
and protection from economic and social exploitation. Moreover, the ëConvention
on the Elimination of All Forms of Discrimination against Womení also contains
child-protective provisions. For example, it encourages States Parties to specify a
minimum age for marriage11 , and it emphasizes that the interests of children are
paramount.12 Another important legal document also applicable to children is the
ëConvention on the Rights of Persons with Disabilitiesí, which establishes the principle
of respect for evolving the capacities of children with disabilities. The same applies
to the ëConvention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishmentí. The Committee established under the latter Convention
has already expressed its concern about the general vulnerability of abandoned
children who are at risk of torture and other cruel, inhuman or degrading treatment
or punishment, especially children used as combatants.13The systems of the UN
encompass four legally binding instruments tailored to protect childrenís rights, namely

ñ the ëConvention on the Rights of the Childí (CRC), the ëOptional Protocol to the
Convention on the Rights of the Child on the Sale of Children, Child Prostitution and
Child Pornographyí (CRCñOPSC), the ëOptional Protocol to the Convention on the
Rights of the Child on the Involvement of Children in Armed Conflictí (CRCñ
9 1989, Human Rights Committee, Para 2.

10 Articles 10(3) and 13

11 Article 16(2)

12 Articles 5(b) and 16(1)(g)

13 Committee against Torture, 2005, In ìIn The Best Interest Of Children Deprived
Of a FamilyEnvironment: A Focus On Islamic Kafalah as an Alternative Care Optionî,

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Protection of Childrenís Rights: An Overview of International Legal Framework

OPAC), and the ëProtocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Childrení, supplementing the UN Convention against
Transnational Organized Crime.

Beyond the purview of the UN, a number of other instruments exist within
diverse regional arrangements aimed at protecting the rights of children. Included
in this category are the ëAfrican Declaration on the Rights and Welfare of the
Childí14 , the ëAfrican Childrenís Charter on the Rights and Welfare of the Childí
(African Childrenís Charter)15 , the ëEuropean Convention on the Legal Status of
Children Born out of Wedlockí16 , the ëEuropean Convention on the Exercise of
Childrenís Rightsí17, and the ëEuropean Convention on Contracts Concerning
Childrení.18 These instruments not only set out the rights to which a child is entitled
in specific contexts but also specify the safeguards that States Parties should provide
for the welfare of children.19These documents cover a wide area and touch on
such matters as the rights of a child to life; to national identity; freedom of expression;
freedom of thought, conscience, religion and association; to protection of privacy,
family, home, correspondence, honour and reputation; the rights to education, health
care, parental care and social security, and the right to protection from physical or
mental injury, sexual exploitation and abuse, and from neglect or maltreatment.
Thus, it can be stated that childrenís rights are covered by a multitude of general
human rights provisions.

Convention on the Rights of the Child, 1989

The UN Convention on the Rights of the Child (CRC), which consists of 54
Articles, incorporates the full range of human rights ñ civil, cultural, economic,
political and social ñ and creates the international foundation for the protection and
promotion of human rights and fundamental freedoms of all persons under the age
of 18. The Convention represents widespread recognition that children should be
fully prepared to live an individual life in society, and brought up in the spirit of
peace, dignity, tolerance, freedom, equality and solidarity.20Childrenís rights deserve

2009, Faculty of Law, University of Pretoria.

14 African Declaration on the Rights and Welfare of the Child as adopted in 1979.

15 African Childrenís Charter on theRightsand WelfareoftheChild asadopted in1990.

16 European Convention on the Legal Status of Children Born out of Wedlock as
adopted in 1975.

17 European Convention on the Exercise of Childrenís Rights as adopted in1996.

18 European Convention on Contracts on Concerning Children as entered into force in

  1. 19 Olowu, D. 2008.Childrenísrights, international human rights andthe promiseof
    Islamic legal theory, Democracy and Development, Journal of the Faculty of Law,
    University of Western Cape.

20 Preamble to the UN Convention on the Rights of the Child ñ Paragraph 7.

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Vitasta Law Journal, Vol.3 No.3, 2017

the same level of attention in the human rights discourse as the rights of every other
category of persons protected, especially minority groups. Children are the most
politically powerless citizens of all nations. Infants and young children, especially,
are the most vulnerable.21 Childrenís rights are certainly more visible now as a
result of the CRC.22

Despite the existence of rights, children suffer from poverty, homelessness,
abuse, neglect, preventable diseases, unequal access to education and justice systems
that do not recognize their special needs. These are problems that occur in both
industrialized and developing countries.23The near-universal ratification of the
Convention reflects a global commitment to the principles of childrenís rights. State
parties are obligated to amend and create laws and policies to fully implement the
Convention; they must consider all actions taken in light of the best interests of the
child. The task, however, must engage not just governments but all members of
society. The standards and principles articulated in the Convention can only become
a reality when they are respected by everyone. The responsibility for this does not
lie with any single institution, Governments and civil society must work hand in hand
to create a world where children are truly seen and heard.

The CRC follows a holistic approach to childrenís rights, recognizing that
the rights anchored in the Convention are indivisible and interrelated, and that equal
importance must be attached to each and every right contained therein. Some of
the important rights of the children are as ñ


  1. The right to equalityñ No child may be discriminated against on the basis
    of race, colour, sex, language, religion, political or other opinion, national
    or social origin, property, birth or other status.

  2. The best interest of the child has to prevailñ Whenever decisions are
    being taken which may have an impact on children, the best interest of the
    child has to be taken into account at all stages. This applies to the family as
    well as to state action.

  3. The right to life, survival and developmentñ Every Member State has to
    ensure, to the maximum extent possible, the survival and development of
    21 The United Nations 1989 Convention on the Rights of the Child and its influence on
    the Legislati-ons of African States, http://stanescatholic.wordpress.com/, accessed

22Bell,B.,Berett,R.,Marcus,R., Muscroft,S.1999.ChildrenísRights:Realityor
Rhetoric? The UN Convention on the Rights of the Child: The First Ten
Years,p.295, Save the Children, London.

23 Convention on the Rights of the Child -Understanding the Convention on the
Rights of the Child, UNICEF, http://www.unicef.org, accessed 2017.

52


Protection of Childrenís Rights: An Overview of International Legal Framework

the child by, interalia, providing access to health care and education, and by
protecting the child from economic and socialexploitation.

  1. Respect for childrenís own viewsñ Children should be respected and taken
    seriously, and they should be involved in decision-making processes
    according to their age and maturity.
  2. Right to say what children think and expect that adults will listen, and do
    what is best for children.
  3. Right to family nameñ This is a basic part of childís identity, and should
    not be changed unless children or their parents want to change it.
  4. Right to think and believe what they like, and choose their own religion,
    but their parents should guide them. Also, if they have a different nationality
    then they have the right to enjoy their own culture and use their own language.
  5. Right to special care and education for disabled children, to help them
    tolive a full and independent life.
  6. Right to special protection for refugee children who have been forced
    to leave country because of danger.
  7. Right to keep in touch with parents if, for any reason, they are separated
    from either of them.
  8. Right to special careñ which could mean being adopted, fostered, or living
    in a childrenís home. If children are adopted or ëin careí, their wishes and
    needs should be put first. If children are ëin careí, others must check regularly
    to make sure that they are being treated properly.
  9. Right to have enough to eat, adequate clothes, and a roof. If, whoever
    looks after children canít afford these, the government should help them.
  10. Right to education.
  11. Right not be made to do harmful workñ Work should not stop them from
    learning, being healthy, or growing up. There are minimum ages for when
    children can work, and laws to make sure that children are not working in
    bad conditions.
  12. Right not to be sexually exploited or abused.
  13. Right to grow up healthy, which means getting proper healthcare and
    information to help children stay healthy.
  14. Right to play, and to relax by doing things like sport, music, drama and
    art.
  15. Right to be protected from drugsñ children shouldnít be forced to take
    them, make them, or deal them and those looking after children should
    protect them from other adults who may try to get them into drugs.
  16. Right to name and nationality.
  17. Right to privacy.
  18. Right not to be subjected to torture or other cruel inhuman or degrading
    treatment or punishment and not to be unlawfully deprived of liberty.
  19. Right to be treated with dignity and respect and they have the right to
    complain to appropriate authorities if those rights are breached.
    53
    Vitasta Law Journal, Vol.3 No.3, 2017
  20. Rights of the children deprived of family environmentñ CRC provides
    various types offamily-type alternative care for such children.It provides,
    the role of the extended family, which is still a main pillar of child care in
    manycommunities and is considered one of the best alternatives for child
    care,should be strengthened and empowered to support the child and his or
    her parents or others taking care of the child. CRC recognizes that thefoster
    family is an accepted and practiced form of alternative care inmany States
    parties. CRC also acknowledges and recognizes Islamic ëKafalahí.During
    he drafting process of the CRC, the inclusion of adoption (in-country and
    inter-country) as a form of alternative care for children deprived of family
    environment generated debates from Islamic statesídelegates, due to the
    ëprohibitioní of adoption under the Shariah. The initial wording of the eventual
    article 21 of the CRC read, ëStatesPartiesÖshallundertake measures,where
    appropriate, to facilitate the process of adoption of the childí 24. The for
    implication of this was that states ëmustí make/ put in place mechanisms
    adoption. Eventually,a compromise was reached to the effect that states
    are not obliged to recognise or set up a system of adoption, by qualifying
    the provision from the outset; it reads now,ëStates Parties that recognize
    and/or permit the system of adoptionÖî.This is said to reflect a more
    realistic approach to the subject byaccommodating the various
    concernsraised,another significant one being the fact that adoption is not
    the ëonly solutioní for children deprived of family environment (CDFE). In
    response to the opposition of the Islamic delegates also, ëkafalahíbecame
    included as one of the forms of alternativecare for CDFE in article 20 of
    the CRC, largely because of its family-based nature.
    Implementation of CRC

In September 2003, the Committee on the Rights of the Child published its
General Comment No.5 on general measures of implementation for the Convention.25

  1. The process of law reform: State parties should review national legislation
    and ensure that national laws are compatible with the rights set out in the CRC.
    Additionally, States are urged to review and withdraw any reservations made on
    Convention articles and to ratify other relevant international instruments such as the
    two Optional Protocols.

  2. Development of independent human rights institutions for children:
    The establishment of independent human rights institutions for children should not

24 Assim, 2009. In theBest Interstof Children Deprived ofa FamilyEnvironment:A
Focus on Islamic Kafalah as an Alternative Care Option, aculty of Law, University of
Pretoria.

25 GeneralMeasuresofImplementationof CRC,http://www.crin.org/resources/
infodetail.asp? ID=8043,accessed 2017.

54


Protection of Childrenís Rights: An Overview of International Legal Framework

substitute, but rather be complementary to self-monitoring governmental institutions.
These institutions should begeared towards promoting and safeguarding the rights
of the child. Increasingly, states are establishing independent human ights institutions
for childrenñ either separate childrenís ombudspeople or childrenís rights
commissioners, or focal points on childrenís rights within general human rights
commissions or ombudsman offices. In Europe, childrenís institutions from twelve
countries joined forces to form the European Network of Ombudspersons for
Children (ENOC) in 1997. By 2007, it had grown to include 32 institutions in 23
countries.

  1. Development of comprehensive strategies or agendas for children: In
    order to promote and protect the rights of the child at all levels, State parties need to
    develop a comprehensive national strategy for children based on the CRC. The
    strategy must set realistic and achievabletargets and must include adequate allocation
    of human, financial and organizational resources.
  2. Development of permanent governmental coordination mechanisms:
    Full implementationof the CRC requires effective coordination both horizontally
    between government agencies and departments and vertically across different
    government levels, from local, regional to central, but also between the government
    and the private sector.
  3. Systematic monitoring ñ data collection and evaluation: Two kinds of
    monitoring can be distinguished, the first is the monitoring of violations, and the
    second is monitoring the implementation of the Convention.
  4. Allocation of resources for children (budget analysis, etc): States are
    expected to allocate a budget for children ìto the maximum extent of their available
    resourcesî.
  5. Education, training and awareness-raising on the CRC: Awareness
    raising on the CRC should be geared towards adults and children alike.
    Convention on the Civil Aspects of International Child Abduction, 25
    October 1980

Desiring to protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their prompt
return to the State of their habitual residence, as well as to secure protection for
rights of access, provisions in the convention were enacted. The objects of the
present Convention are-to secure the prompt return of children wrongfully removed
to or retained in any Contracting State; and to ensure that rights of custody and of
access under the law of one Contracting State are effectively respected in the
other Contracting States.26

26 Article 1

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Vitasta Law Journal, Vol.3 No.3, 2017

World Declaration on the Survival, Protection and Development of
Children, September 1990

To protect the rights of children and to improve their lives, 10-point
programme was formulated.27 Some of them are ñ

Programmes that respect for the role of the family in providing for children
and support the efforts of parents, other care-givers and communities to nurture
and care for children, from the earliest stages of childhood through adolescence. It
recognizes the special needs of children who are separated from their families.

Programmes that reduce illiteracy and provide educational opportunities
for all children, irrespective of their background and gender; that prepare children
for productive employment and lifelong learning opportunities, i.e. through vocational
training; and that enable children to grow to adulthood within a supportive and
nurturing cultural and social context.

Programmes to ameliorate the plight of millions of children who live under
especially difficult circumstances-as victims of apartheid and foreign occupation;
orphans and street children and children of migrant workers; the displaced children
and victims of natural and man-made disasters; the disabled and the abused, the
socially disadvantaged and the exploited. Refugee children must be helped to find
new roots in life. To work for special protection of the working child and for the
abolition of illegal child labour.

Programmes to protect children from the scourge of war and to take
measures to prevent further armed conflicts, in order to give children everywhere a
peaceful and secure future.

Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption, 29 May 1993

India is not party to this convention.28Some Objects of the Convention areñ
to establish safeguards to ensure that inter-country adoptions take place in the best
interests of the child and with respect for his or her fundamental rights as recognised
in international law; to establish a system of co-operation amongst Contracting
States to ensure that those safeguards are respected and thereby prevent the
abduction, the sale of, or traffic in children.29An adoption within the scope of the
Convention shall take place only if the competent authorities of the State of origin
have determined, after possibilities for placement of the child within the State of

27 UN Documents Gathering a Body of Global Agreements, http://www.undocuments.
net/index.htm, accessed 2017.

28 Carrie Craft, Mar 3, 2008, Which Countries Are a Part of the Hague Adoption
Convention?, http://about.com Guide, accessed 2017.

29 Article1

56


57
30 Article 1
31 Article 2, http://hcch.e-vision.nl/index-en.php?act=conventions.text&cid=70,accessed


  1. 32 Article 1
    33 Article 2(a)
    34 Artice 2 (b)
    35 Article 2 (c), http:// www.ohchr.org/EN/, accessed 2017.
    origin have been given due consideration, that an intercountry adoption is in the
    childís best interests.
    Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
    Co-operation in Respect of Parental Responsibility and Measures for the
    Protection of Children, 1996
    The objects of the Convention areñ to determine the State whose authorities
    have jurisdiction to take measures directed to the protection of the person or property
    of the child, to determine which law is to be applied by such authorities in exercising
    their jurisdiction, and to determine the law applicable to parental responsibility.30
    For the purposes of this Convention, the term ëparental responsibilityí includes parental
    authority, or any analogous relationship of authority determining the rights, powers
    and responsibilities of parents, guardians or other legal representatives in relation to
    the person or the property of the child. The Convention applies to children from the
    moment of their birth until they reach the age of 18 years.31
    Optional Protocol to the Convention on the Rights of the Child on the sale
    of children, child prostitution and child pornography, 2000
    This protocol provides that State Parties shall prohibit the sale of children,
    child prostitution and child pornography as provided for by the present Protocol.32 For
    the purposes of the Protocol: Sale of children means any act or transaction whereby
    a child is transferred by any person or group of persons to another for remuneration
    or any other consideration33; Child prostitution means the use of a child in sexual
    activities for remuneration or any other form of consideration34; Child pornography
    means any representation, by whatever means, of a child engaged in real or simulated
    explicit sexual activities or any representation of the sexual parts of a child for
    primarily sexual purposes.35
    Children at the Human Rights Council
    In June 2006, the Human Rights Council replaced the Commission on Human
    Rights. Previously a number of Resolutions on specific issues affecting children
    Protection of Childrenís Rights: An Overview of International Legal Framework

    Vitasta Law Journal, Vol.3 No.3, 2017

were introduced by the country most concerned about the issue. These included
children living and working on the street, sexual exploitation of children and children
affected by armed conflict.36In April 2006, the NGO Group for the Convention on
the Rights of the Child, Subgroup on the Human Rights Council, presented a call for
action to all Permanent Representatives at the United Nations in Geneva and called
on the Human Rights Council to act on four specific child rights issues: violence
against children; sale of children, child prostitution and child pornography; children
affected by armed conflict and displacement; and children in conflict with the law.37

Child rights in the European Union

The EU specifically addresses childrenís right in article 24 of the EU Charter
of Fundamental Rights adopted in 2000, as well as article I-3, paragraph 3 of the
Draft Constitution for the European Union. Although not binding, the EU Charter
has become an important reference document, and the Advocates General of the
European Court of Justice has referred on several occasions to the Charter in ECJ
cases.38On 4th of July 2006, the European Commission launched a communication
called ìTowards an EU Strategy on the Rights of the Childî.39 The aim was to
establish a comprehensive approach to childrenís rights in both internal and external
EU-policies.

The European Union has adopted about 50 legislative and non-legislative
documents. They are all used as instruments to promote childrenís rights in areas
including, asylum and immigration, justice and family matters, child trafficking and
prostitution, violence against children, child safety on the internet and TV,
discrimination and social exclusion, child poverty, child labour (including trade
agreements committing to the abolition of child labour), health and education of
children in armed conflict.

36 Children at theHuman Rights Council,http://www.crin.org/law

mechanisms.index.asp,viewed June. 2017.
37 Ibid
38 http://ww.crin.org/resources/infoDetail.asp?ID=13007, accessed 2017.
39 http://ww.crin.org/resources/infoDetail.asp?ID=12386, accessed 2017.

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Protection of Childrenís Rights: An Overview of International Legal Framework

Office of the UN High Commissioners for Refugees (UNHCR) and child
rights

UNHCR was established in 1950 by the United Nations General Assembly.
UNICEF and UNHCR work together on different programmes involving children.
UNICEFís work with refugees is based on a resolution from its Executive Board
calling on the agency ìto continue providing emergency assistance to refugee and
displaced women and children, particularly those living in areas affected by armed
conflict and natural disastersî.40 Some of the child protection activities which they
engage in include obtaining support for unaccompanied and separated children;
ensuring the psychological well being of children and their families; providing basic
education and meeting the health needs of children, adolescents, and their mothers.

Child Rights and National Human Rights Institutions and Ombudspersons

Ombudsperson is an office provided for by the constitution or by action of
the legislature or parliament and headed by an independent, high-level public official
who is responsible to the legislature or parliament, who receives complaints from
aggrieved persons against government agencies, officials, and employees or who
acts on his own motion, and who has the power to investigate, recommend corrective
action, and issue reports.41Activities of an Ombudsperson for children would includeñ
influencing policy makers and practitioners to take greater account of the rights of
children; providing a voice for children and a channel of communication between
children and government; ensuring that children have effective means of redress
when their rights are violated; monitoring the governmentís compliance with the
CRC (article 4) including monitoring the governmentís reporting obligations, and
producing a supplementary report to the official State party report.42

The Committee on the Rights of the Child, the body responsible for monitoring
the implementation of the UN Convention on the Rights of the Child (UNCRC),
has consistently emphasized the vital role of childrenís ombudspersons in monitoring,
promoting and protecting childrenís rights. It has encouraged State parties to the
UNCRC to develop independent human rights institutions for children, which should
be given a broad mandate in law, specific functions, powers and duties relating to
children and their rights as per the UNCRC.43

40 http://www.unhcr.org/cgi-bin/texis/vtx/home, accessed 2017.
41 Ombudsperson Committee, International Bar Association Resolution, 1974.
42 http:// www.crin.org/; www.ombudsnet.org/enoc/networks/index.asp, accessed 2017.
43 URL:www.crin.org./docs/crc/, accessed 2017.

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Vitasta Law Journal, Vol.3 No.3, 2017

Children and World Health Organization (WHO)

WHO is the leading body of the UN on global health issues. Its main function
is to determine the organizationís policies. WHO has various childrenís programmes,
including Child and Adolescent Health and Development, Childrenís environmental
health, Child growth standards, School andYouth Health.44 WHOís follow up activities
to the UN Study on Violence against Children.45Through its 2002 World Report on
Violence and Health, WHO has encouraged governments to address violence as a
public health priority.

ILO (International Labour Organization) and its two Conventions on Child
Labour

The ILOís International Programme on the Elimination of Child Labour
(IPEC) was created in 1992 with the overall goal of eliminating child labour, which
was to be achieved through strengthening the capacity of countries to deal with the
problem, and promoting a worldwide movement to combat child labour.

IPEC currently has operations in 88 countries. The ILO has produced two
conventions relating to child labour; ILO Convention on the Worst Forms of Child
Labour, and ILO Convention on the Minimum Age for Admission to Employment
and Work. The ILO does not claim all work to be bad for children, but only work
which interferes with their development, schooling and general well being.46While
the goal of IPEC remains the prevention and elimination of all forms of child labour,
the priority targets for immediate action are the worst forms of child labour, which
are defined in the Convention on the Worst Forms of child Labour, 1999, as ñ all
forms of slavery or practices similar to slavery, such as the sale and trafficking of
children; debt bondage and serfdom and forced or compulsory labour, including
forced or compulsory recruitment of children for use in armed conflict; the use,
procuring or offering of a child for prostitution, for the production of pornography or
for pornographic performances; the use, procuring or offering of a child for illicit
activities, in particular for the production and trafficking of drugs as defined in the
relevant international treaties; work which, by its nature or the circumstances in
which it is carried out, is likely to harm the health, safety or morals of children.

44 URL: http://www.who.int/, accessed 2017.
45 URL: ww.crin.org/resources/infoDetail,asp?ID=3002, accessed 2017.
46 URL: www.ilo.org/ipec/indexhtm, accessed 2017.

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Protection of Childrenís Rights: An Overview of International Legal Framework

Child Rights and the League of Arab States

The League of Arab States was founded in Cairo in 1945. In 1992, the
First Arab High Level Conference on Children was convened in Tunis and adopted
a set of global goals for the year 2000. The Arab High Level Conference on the
Rights of the Child took place from July 1 to 4, 2001 in Cairo and concluded with the
adoption of a draft declaration and framework for action on the rights of children
for the period 2001-2010. This was called ëAn Arab World Fit for Children:
Mechanisms for Joint Arab Action and an Arab Common Positioní.47The Beirut
Summit (March, 2003) adopted the ìArab World Fit for Childrenî declaration which
had been issued by the Second Arab High Level Conference on the Rights of the
Child in Cairo. This mirrored the ëWorld Fit for Childrení outcome document of the
UN Special Session on Children.

The Arab Summit in Tunis (March, 2004) issued a Plan of Action 2004-15
which identifies strategies for achieving the Millennium Development Goals and
improving the situation of children in the region. Other events which have taken
place include the First Arab Media Forum on the Rights of the Child and Media,
which took place in Dubai, from December 6 to 9, 2004.

Arab Charter on Human Rights, 1994

Arab Charter on Human Rights was adopted by the Arab League in 1994
and entered into force on March 16, 2008.48 Regarding childrenís rights, this charter
provides that death penalty shall not be inflicted on a person under 18 years of age,
on a pregnant woman prior to her delivery or on a nursing mother within two years
from the date on which she gave birth.49The eradication of illiteracy is a binding
obligation and every citizen has a right to education. Primary education, at the very
least, shall be compulsory and free and both secondary and university education
shall be made easily accessible to all.50 The family is the basic unit of society,
whose protection it shall enjoy. The State undertakes to provide outstanding care
and special protection for the family, mothers, children and the aged.51

However, the then United Nations High Commissioner for Human Rights,
Louise Arbour, noted that the Charter contains provisions that do not meet
international norms and standards, including the application of the death penalty for
children, and the treatment of women and non-citizens. Under the Arab Charter,

47 http://www..crin.org/index.asp, accessed 2017.
48Alkaramafor Human Rights,March 21, 2008,http://en.alkarma.or

index.php?option=com_content& view, accessed 2017.
49 Article 12
50 Article 34
51 Article 38

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Vitasta Law Journal, Vol.3 No.3, 2017

the death penalty can be applied to children in certain circumstances, in contradiction
with its prohibition in the UN Convention on the Rights of the Child.52Article 37 of
the Convention on the Rights of the Child forbids the death penalty for children
undertheageof18years.However,Article7 oftheArabCharterstates: ìSentence
of death shall not be imposed on persons under 18 years of age, unless otherwise
stipulated in the laws in force at the time of the commission of the crimeî. But,
another provision in the Charter, Article 43, says: ìNothing in this Charter may be
construed or interpreted as impairing the rights and freedoms protected by the
domestic laws of the States parties or those set forth in the international and regional
human rights instruments which the States parties have adopted or ratified, including
the rights of women, the rights of the child and the rights of persons belonging to
minorities.î

Role of ICRC in Protecting Children in Armed Conflict

The ICRC has a mandate to trace families across borders. When they
come across a child separated from his or her family because of a conflict, the
ICRC will, at the request of the child or the guardian, register the child and try to
find the family in order to re-establish contact. Between 2003 and 2006, the ICRC
reunified6,237 unaccompaniedandseparatedchildren.Atotalof775 werereunified
with their parents in 2006.53

Recruitment of children is a matter of serious concern to the ICRC. This is
done in two ways, through promoting standards within clear legal frameworks and
through operations in the field. In the field, the ICRC regularly approaches armed
groups and government authorities and forces, reminding them of their obligations
and of the ban on the recruitment of child soldiers. Between 2003 and 2006, the
ICRC reunified 1,740 demobilized children with their families. A total of 306 of
them were reunified in 2007.54 The ICRC aims to provide assistance to all victims
of war to protect their life and health and to alleviate suffering. This ranges from
providing baby parcels, specific health care for mothers and children, educational
materials and other items. The ICRC also facilitates family visits for detained minors.
In 2006, the ICRC facilitated 71 family visits to detained children.55

ICRC extends help in matters laid down in and in consonance with the
basic rules of The Geneva Conventions and their Additional Protocols. For the
protection of children, Protocol declares that children must be the object of special
respect and must be protected against any form of indecent assault. They must

52 http://www.crin.org/index.asp, accessed 2017.
53 http:// www.icrc.org/web/eng/siteeng0.nsf/html, viewed June. 2017.
54 Ibid
55 Ibid

62


Protection of Childrenís Rights: An Overview of International Legal Framework

receive the care and aid they require, whether because of their age or for any other
reason. All practical measures must be taken to prevent children under the age of
15 from taking a direct part in the hostilities and, if they have become orphaned or
separated from their families as a result of war, to ensure that they are not left to
their own resources and that their maintenance, the exercise of their religion and
their education are facilitated in all circumstances.56

Conclusion

Childrenís rights are covered both under international human rights
instruments and special legal framework. Specifically vulnerable groups such as
indigenous people and children have been assigned special protection by the
international legal framework. Although legal instruments were developed that
targeted the protection of children in particular, it has to be emphasized that basic
human rights instruments already recognize these rights. Despite the existence of
rights, children suffer from poverty, homelessness, orphan hood, abuse, neglect,
preventable diseases, unequal access to education and justice systems that do not
recognize their special needs. These are problems that occur in both industrialized
and developing countries. State parties are obligated to amend and create laws and
policies to fully implement the Convention. They must consider that all actions are
taken in light of the best interests of the child. The task, however, must engage not
just governments but all members of society. The standards and principles articulated
in the U.N.Convention on the Rights of Child, 1989 can only become a reality when
they are respected by everyone. Tomorrowís challenges have to be met by todayís
children. To prepare them for this, we must treat them as respected citizens, letting
them learn leadership, democracy and collective responsibility. The responsibility
for this does not lie with any single institution, Governments and civil society must
work hand in hand to create a world where children are truly seen and heard.
Vulnerable children often are disadvantaged in numerous and devastating ways
and most households with orphans cannot meet the basic needs of health care,
food, clothing, and educational expenses. Major factors contributing to the increasing
number of orphans in the word are, AIDS, armed conflict and natural disasters. At
international level, it is considered a big challenge and a few useful conventions for
the protection of vulnerable children in this regard have been framed but not
implemented in letter and spirit by all nations. Implementation of international laws
by adopting them in the regional legal framework is the need of the hour.

56 Understanding Humanitarian Law: Basic Rules of the Geneva Conventions
and their Additional Protocols, 2005, p.42, ICRC.

63


SARFAESI Act and its Application to the State of Jammu &
Kashmir: Problems and Perspective

Showkat Hussain*

ABSTRACT

The practice of lending and borrowing is an age old practice. Money
has played a vital role in the growth of economies throughout the history.
The banking industry has over the years faced many problems and is
currently facing, particularly in India, the problem of huge amount of
money being held in Non Performing Assets. Previously, there was no
special legislation to facilitate the recovery of money by the Banks from
the defaulting borrowers. The usual course was to institute a civil suit
in the ordinary civil courts. In this context, the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
(SARFAESI) Act, 2002, was passed which came to the great rescue of
banks. The SARFAESI Act is a combination of three concepts/ ideas that
together help the Banking institutions to recover their bad debts due
from their borrowers. The Act is divided into three parts viz: 1.
Securitization; 2. Asset Reconstruction; and 3. Enforcement of Security
Interest and all of these involve conveyance of property. Though the
SARFAESI Act has been extended to whole of India, including the State
of Jammu & Kashmir1 , its application to the State of Jammu & Kashmir
has been challenged/contested on the grounds inter alia that it violates
the special status conferred on the State of Jammu & Kashmir by the
Constitution of India. This paper attempts to study the possible
alternatives to reconcile the conflicts between the Union and State laws
arising out of the application of this Act to the State of Jammu & Kashmir.
Key words: Non Performing Assets, Securitization, Asset Reconstruction, Security Interest

Introduction

The practice of lending and borrowing is an age old practice. Money has
played a vital role in the growth of economies throughout the history. Banking
industry is one of the backbones of the economy today. It is one of the main driving
forces and facilitator of trade and business in the modern world. The banks have
been lending to diverse groups or communities resulting in strengthening the
confidence of the traders to invest in diverse activities across the Globe. However

*LLM(NET),LLB, BSc,UniversityofKashmir @ shokis24@gmail.com.
1 Section 1 of the Act

64


SARFAESI Act and its Application to the State of Jammu & Kashmir: Problems ………..

the journey of the growth of banking industry has not been smooth. Banking industry
has faced and is facing many problems. One of such problems which the industry is
facing, particularly in India is the huge amounts of money being held in Non
PerformingAssets.Anon performingAsset means anasset or account of a borrower
which has been classified by a bank as substandard or doubtful.2 When the borrower
does not pay the amount borrowed or any installment thereof as agreed between
borrower and lender, over a period of time, the account of the borrower is termed
as a Non-Performing one. A Non-Performing Asset has been defined under
SARFAESI Act as:

ìnon-performing assetî means an asset or account of
a borrower, which has been classified by a bank or
financial institution as sub-standard, doubtful or loss
asset,ó

(a) in case such bank or financial institution is
administered or regulated by any authority or body
established, constituted or appointed by any law for
the time being in force, in accordance with the directions
or guidelines relating to assets classifications issued
by such authority or body;
(b) in any other case, in accordance with the directions
or guideline relating to assets classifications issued by
the Reserve Bankî3
In essence when a borrower fails to repay the amount advanced to it over a
particular period of time, the account of the borrower is turned to be a non performing
one.4 The failure of the borrower to repay the money availed from the Banks
results in holding up of huge amounts of public money in the hands of the defaulters.
This has a direct impact upon the heath of the lending institutions.5 And when the
money is unable to circulate, this directly affects the economy of a country. As a

2 Unny P Mukund, ìA Study on the Effectiveness of Remedies Available For
Banks in a Debt Recovery Tribunal – A Case Study on Ernakulam DRTî
Working paper Series, Centre for Public Policy Research, February 2011, p4

3
Section 2 (o) of The Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002

4
As per Reserve Bank of Indiaís Master Circular an account generally turns
NPA when the interest and/ or installment of principal remain overdue for a
period of more than 90 days in respect of a term loaní. See Master Circular

No. DBOD.No.BP.BC.12/21.04.048/2011-12 dated July 1, 2011 on www.rbi.org.in.
Accessed on 25.10.2017

5 See Balasubramaniam, C. S ìNON PERFORMING ASSETS AND
PROFITABILITY OFCOMMERCIALBANKSIN INDIA: ASSESSMENTAND
EMERGING ISSUESî Abhinav, Volume 1, Issue 7, p42. @
www.abhinavjournal.com. Accessed on 01.11.2017

65


Vitasta Law Journal, Vol.3 No.3, 2017

result, recovery of the amount becomes imperative. This is done by the banking
institutions in many ways. Though recovery through legal recourse continues to be
one of the main options of NPA reduction, however, the legal course is generally
the last resort of recovery when all other efforts and measures (motivation, meetings,
personal contact, social pressure, adjustment through compromise/OTS etc.) are
fully exhausted / exploited. But in law, once the account of a borrower turns bad
and the borrower has defaulted, the defaulting borrower is liable to action under
law.

Brief history of SARFAESI Act

Previously, there was no special legislation to facilitate the recovery of
money by the Banks from the defaulting borrowers. The usual course was to institute
a civil suit in the ordinary civil courts. But court proceedings were dragged for
years, due to lengthy procedures involved and the mammoth of pendency of suits in
the ordinary civil courts. ëThis took its toll on the financial health of the banks, as the
chunk of the stressed assets got snagged in the litigation. The banks found it very
difficult to fund their further advancesí.6 ëA significant portion of the funds of the
Banks was thus blocked in unproductive assets, the value of which was deteriorating
with the passage of time.í7 It was then realized that the public money should not be
held up for so long. As a consequence of this, the Government of India appointed
many Committees to work out a plan for speedier recovery of debts due to the
Banks. In 1981, Tiwari Committee highlighted the difficulties faced by the banking
institutions in recovery of their debts. The Tiwari Committee Report8 was endorsed
by the Narasimhan Committee9 in 1991 that made a path-breaking recommendation
to install tribunals to deal with cases of debt recovery. In response to the
recommendations of the Narasimhan Committee, the Recovery of Debts to Banks
and Financial Institutions Act, 1993 was enacted by the Parliament. Under this Act,
Debt Recovery Tribunals were established at different cases across the country.
These tribunals are the quasi-judicial institutions set up to process the legal suits
filed by banks against defaulting borrowers and recover the money in a speedy
manner. Under the Act there is no need to follow the formal procedures laid down
in the Code of Civil Procedure. However, by the operation of the Act Indian Banks
did not match the speed and standards of debt recovery with those at International
level. This was partly because, though special tribunals were created for the Banking
Industry but, the Banks again had to approach a third agency (the tribunal) to recover
their debts. Secondly, the jurisdiction of the Debts Recovery Tribunals is restricted

6 Infra 1 at p10

7
Srivastava ëSecuritization & Debt Recovery Lawsí Law Publishers India Pvt.
Ltd. 7th Edition, Volume 1, p 94

8 Tiwari Committee Report on Rehabilitation of Sick Industrial Units, 1981

9 The Report on Banking Reforms, 1991, submitted to the Government of India.

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SARFAESI Act and its Application to the State of Jammu & Kashmir: Problems ………..

to the cases where the amount involved is more than ten Lac Rupees.10 Also because,
unlike their International counterparts, the banks in India had no power to take
possession of the securities held against the money lent and had no power to sell
these securities directly without the intervention of the court.11 Thus, it was felt
that banks and financial institutions should be given the power to sell securities to
recover dues. In this regard, the Government of India appointed a committee under
the chairmanship of Shri T R Andhyarujina, senior Supreme Court advocate and
former Solicitor General of India, in 1999 to look into these matters. The Committee
submitted four reports. One of them is related to securitization. Based on the
recommendations of the Andhyarujina Committee, The Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
(SARFAESI) Act, 2002, was passed on December 17, 200212. One of the main
objectives of the SARFAESI Act is to provide for the enforcement of security
interest i.e. taking possession of the assets given as security for the loan. The
SARFAESI Act has brought a greater change in the debt recovery scenario in the
country. One of the important changes that SARFAESI has brought is that it allowed
the banks to take over possession from the defaulter, without going through the
stringent court procedure, once the loan account has been categorized as a Non-
Performing Asset.13

SARFAESI Act: An overview14

The SARFAESI Act is a significant Legislative initiative to address the
interests of secured creditors. The sole purpose of the Act is to mobilize the money
that is held in bed debts and allow the same to circulate which is necessary for the
development of economy. The Act aims at arming the secured creditors (Banks
and Financial Institutions) to recover their bad debts without following the tedious
procedures in the ordinary Courts. Instead, the Act bypasses the formal court
machinery and allows the Banks to recover the money directly from the borrowers
withthebackingof law.ThoughtheConstitutionalValidityoftheAct was challenged
in Mardia Chemicals Ltd. & Ors v Union of India & Ors15 but the Supreme
court upheld the Constitutional validity of the Act. The Act provides three methods
for recovery of bad debts or what is technically referred to as Non Performing

10 Section 1 (4) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993
11 Statement of objectives of the SARFAESI Act, 2002
12 Meenakshi Rajeev & H P Mahesh, ìBanking Sector Reforms and NPA: A study

of Indian Commercial Banksî Working Paper 252, The Institute for Social and

Economic Change, Bangalore. P 8
13 Infra 1 at p 14
14 See also Dhar, Kaushik, ëSarfaesi Act of 2002: A General Understandingí

@http://ssrn.com/abstract=1998971 or http://dx.doi.org/10.2139/ssrn.1998971
15 2004 (4) SCC, 311

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Vitasta Law Journal, Vol.3 No.3, 2017

Assets (NPA). These are, Securitization, Asset Reconstruction and Enforcement
of Security Interest.

Securitization

Securitization is the process of conversion of existing assets or future cash
flows into marketable securities. In other words, securitization deals with the
conversion of assets which are not marketable into marketable ones. In the traditional
lending process, a bank makes a loan, maintaining it as an asset on its balance
sheet, collecting principal and interest, and monitoring whether there is any
deterioration in borrowerís creditworthiness. This requires a bank to hold assets
the loans given till their maturity. The funds of the bank are blocked over long
periods in these loans and to meet its growing fund requirement a bank has to raise
additional funds from the market. Securitization is a way of unlocking these blocked
funds. This is done by following the process of securitization under the SARFAESI
Act. The Act makes provision for the creation of Special Purpose Vehicles or
Securitization companies. The assets of the Banks that have been blocked, in the
form of loans being granted by the Bank, are transferred to these Special Purpose
Vehicles (SPVs). These SPVs offer and transfer the assets blocked so transferred
to them to the investors who acquire an interest in such assets by paying consideration
for the same. The investors can be banks, mutual funds, other financial institutions,
government etc. In India only qualified institutional buyers (QIBs) who possess the
expertise and the financial muscle to invest in securities market are allowed to
invest in such marketable assets. Once the assets are securitized, these assets are
removed from the bankís books and the money generated can be used for other
profitable uses by the lending Banks.16

Asset Reconstruction

In the Act, Asset reconstruction has been defined as:

ëAcquisition by any securitisation company or
reconstruction company of any right or interest of any
bank or financial institution in any financial assistance
for the purpose of realisation of such financial
assistanceí

Therefore, it is a process of taking over of or purchase of the debts of a Bank or a
financial Institution that are due from a borrower by a company called Asset
Reconstruction Company. The Act makes provision for the constitution and
registration of Asset Reconstruction Companies which are regulated by the Reserve

16 See also Anubhav Arora and Vivek Kaul,ëJust what is securitisation?í @http://
www.rediff.com/money/2005/july/06guest.htm. Accessed 02.11.2017

68


SARFAESI Act and its Application to the State of Jammu & Kashmir: Problems ………..

Bank of India. These companies trade in debts of other companies. Once a debt or
an Non Performing Asset is purchased by such a company, the Bank gets rid of its
burden of Non Performing assets and more capital becomes available to it for
further lending and other activities. The NPAs so taken over or purchased by the
reconstruction companies are then realized or recovered by these companies from
the defaulting borrowers directly. Thus, in a sense, the process of reconstruction
involves assignment of debts by banks and other financial institutions to a new
entity called Asset Reconstruction Company. Such companies acquire an interest
in the securities against which the money on NPAs was lent by the Banks.17

The Asset Reconstruction Companies are empowered to recover from the
defaulting borrowers by any of the following means:

(a)
management of the business of the borrower, by change in, or takeover of,
the management of the business of the borrower;
(b)
sale or lease of a part or whole of the business of the borrower;
(c)
rescheduling of payment of debts payable by the borrower;
(d)
enforcement of security interest in accordance with the provisions of this
Act;
(e) settlement of dues payable by the borrower;
(f)
taking possession of secured assets in accordance with the provisions of
this Act.18
Enforcement of Security Interest:

This is the most important and easy method of debt recovery provided under the
Act. By this method the Banks or Financial Institutions can directly recover from
the defaulting borrower by taking possession of or selling or retaining for himself
the property of the borrower. The Act empowers the lender, in the event of default
by a borrower, to issue demand notice19 to the defaulting borrower and guarantor,
calling upon them to discharge their dues in full within 60 days from the date of the
notice. If the borrower fails to comply with the notice, the bank or the financial
institution may take possession of the security and then Sell or lease out or assign
the right over the security. In this process the Bank or the Financial Institution can
seek the assistance of District magistrate by making a simple application to the
District Magistrate.20 The rules appended to the SARFAESI Act, 2002 lay down
detailed procedure to be followed by the secured creditor.21

17 See Divyesh Chaitalia, Rishab Bengani, Onkar Redkar, ëSetting Up & Working of Asset
Reconstruction Companies in India-A Perspective on the Impedimentsí, Symbiosis
Institute of Business Management, Pune @ http:/ www.sibm.edu/Faculty Research/
Pdf/srp/finance/SRP.Accessed on 02.11.2017

18 Section 9 of the SARFAESI Act, 2002

19 Section 13 (2) of the SARFAESI Act, 2002

20 Section 17 of the SARFAESI Act, 2002

21 See Enforcement of Security Interest Rules, 2002

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Vitasta Law Journal, Vol.3 No.3, 2017

SARFAESI Act and the State of Jammu & Kashmir:

The SARFAESI Act is a combination of three concepts/ ideas that together
help the Banking institutions to recover their bad debts due from their borrowers.
The Act is divided into three parts viz: 1. Securitization; 2. Asset Reconstruction;
and 3. Enforcement of Security Interest. These are the three methods by which the
Act allows a Bank / financial Institution to recover its debts classified as Non
Performing Assets without recourse to ordinary civil courts. All the three methods
involve conveyance of immoveable property or some right or interest in immoveable
property and therefore attract the laws relating to the transfer of immoveable
property.22 As far as other States are concerned, there are no major issues and both
the SARFAESI Act and the Transfer of Property Act and other laws relating to the
transfer of property go hand in hand together and can be harmoniously construed
without any material conflict between the two laws. But in the State of Jammu &
Kashmir, the application of SARFAESI Act and other laws relating to the transfer
of property particularly transfer of land together demands analysis of the operation
of these laws together more cautiously. This is both due to historical reasons and
special political and legal status enjoyed by the State of Jammu & Kashmir which is
more often believed to be related to the ownership of immoveable property or more
specifically ownership of land in the State.

Though the SARFAESI Act has been extended to whole of India, including
the State of Jammu & Kashmir23, its application to the State of Jammu & Kashmir
has been challenged/contested on the grounds inter alia that it violates the special
status conferred on the State of Jammu & Kashmir by the Constitution of India.24
Many people view it as an encroachment by the union of India into the domain of
special status granted to the people of Jammu & Kashmir.25 Some experts also
state that the Act is not necessary for lending by Banks in the State.26 But many
others contest that SARFAESI Act does not compromise with the special status of
the State and the Union Parliament is within its powers to extend the Act to the
State of Jammu & Kashmir and legislate on the subject.27

The problems in the application of the Act to the State cannot be explained
and understood without understanding the special relationship of the State of Jammu
& Kashmir with the Union of India. The State of Jammu & Kashmir enjoys a
special status in the Scheme of Constitution of India. This is because of some

22 More particularly the provisions of Jammu & Kashmir Transfer of PropertyAct
23 Section 1 of the Act
24 See Articles 370 and Art 35- A/B/C of the Constitution of India
25 See Haq, Inam ul, ëEnacting SARFAESI Act attempt to dilute Article 370, say

expertsí Kashmir Reader, May, 15, 2017.
26 See Drabu, Haseeb Ahmad, ëRBIís misplaced agenda in J&Kí, Live mint and THE
WALLSTREETJOURNAL,23 October,2017.
27 See Mubashir, Mufti, ëPoliticizing SARFAESIíGreater Kashmir, May 30th,

  1. 70
    SARFAESI Act and its Application to the State of Jammu & Kashmir: Problems ………..

historical reasons28 peculiar to the State and its association with the union of India.
Unlike other States, the laws enacted by the Parliament of India, on the matters
other than the ones listed in the Instrument of Accession and Presidential Orders,
do not directly extend to the State of Jammu & Kashmir and requires ratification by
the Legislature of the State or the concurrence of the State Government.29 Also,
unlike other States, the residuary powers contained in List I of the Seventh Schedule
vest with the State Legislature.30

By virtue of Article 35-A of the Constitution of India as applicable to the
State of Jammu & Kashmir, Section 9 of the State Constitution, the State can make
any law for the Permanent Residents of the State even if that is violative of
Fundamental Rights guaranteed to the citizens of India.31 Under the mandate of this
Article, the State legislature has enacted many laws that restrict the enjoyment of
some rights to the Permanent Residents of the State only. Many such laws deal
with the right to hold immoveable property. The Jammu & Kashmir Acquisition of
Land Act32, The Jammu & Kashmir Land Alienation Act33, Big Landed Estate
Abolition Act34, Land Grants Act35, and Jammu & Kashmir Agrarian Reforms
Act36 restrain transfer of land to any individual who is not a State Subject (now
Permanent Resident). Sections 139 and 140 of the Jammu & Kashmir Transfer of
Property Act also bar transfer of immoveable property to any person who is not a
Permanent Resident of the State.37 When under the SARFAESI Act, a banking
company or a Securitization or a reconstruction Company takes possession of
immoveable property of a borrower who is a permanent resident of State, can such
Company retain such possession of or own the property when it is not a permanent
resident of the State? Such a transfer on the face of it will be violative of the Right
of Permanent Residents of the State to acquire and hold immoveable property
within the State because such a transfer to a non state subject is barred. Similarly,
where under Section 13 of the SARFAESI Act immoveable property is sold by a
bank to a non state subject, such a transfer will also be violative of the provisions of
Jammu & Kashmir Transfer of property Act.

In this context, the main issues involved in the application of the SARFAESI
Act to the State of Jammu & Kashmir are: does the Act compromise with the

28 See Anand A S, ëThe Constitution of Jammu & Kashmir: Its Development &
Commentsí, Universal Law publishing House

29 Article 370 of the Constitution of India

30 Entry 97 of List I of Seventh Schedule to the Constitution of India

31 See Article 35 A of the Constitution of India.

32 Section 5 of the Land Acquisition Act

33 Section 4 of the Jammu & Kashmir Land Alienation Act

34 Section 20-A Big Landed Estates Abolition Act

35 Section 4 of Land Grants Act,

36 Section 17 of the Agrarian Reforms Act

37 See Section 6 of the Constitution of Jammu & Kashmir defining the termëPermanent
Residentí

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Vitasta Law Journal, Vol.3 No.3, 2017

special status of the State by violating the right of Permanent Residents of the State
to hold the immoveable property in the State of Jammu & Kashmir? And, can, the
Union of India extend this law directly to the State of Jammu & Kashmir? Whether
the legislation in question falls in exclusive domain of the Parliament of India to
legislate or in the domain of State Legislature?

It is submitted that in view of the special circumstances attached to the
State of Jammu & Kashmir the issue can be solved by resorting to the well established
principle of interpretation of Pith and Substance. This ëdoctrine is applied when the
legislative competence of a legislature with regard to a particular enactment is
challenged with reference to the entries in different legislative lists, because a law
dealing with a subject in one list within the competence of the legislature concerned
is also touching on a subject in another list not within the competence of that
legislatureí38. The pith and substance or the real essence of the Act in the instant
case can be ascertained by resorting to the objectives of the Act. The SARFAESI
Act in essence was enacted to free the Banking and other Financial Institutions in
recovering their debts without resorting to the lengthy procedures in ordinary civil
courts.39 The jurisdiction of the ordinary civil courts is accordingly barred by the
Act.40 Viewed from this perspective the Act deals with Banking or subject matter
oftheAct isthebankingindustry, whichfallsintheexclusivedomainoftheParliament
to enact laws41. As such all laws relating to Banking, as are also applicable to the
State of Jammu & Kashmir, have been enacted by the Union Parliament only.42

However, it will be a very casual approach if the issue is concluded by
studying only the objectives of the Act without analyzing the practical impact and
working of the Act. Though the real aim and object of the Act is to ensure speedy
recovery of bad debts by banks and financial institutions but the Act directly deals
with the transfer of immoveable property as well. The Act legalizes transfer of
property from one person to another person43 and has thus a direct connection with
the transfer of immoveable property which in State of Jammu & Kashmir falls in
the domain of State Legislature and which directly bears upon the right of only the
Permanent Residents of the State to acquire, hold and transfer the immoveable
property within the State of Jammu & Kashmir. Generally speaking, if a property is
transferred under the provisions of this Act from a state subject to a non state
subject, that will be directly violative of the Jammu & Kashmir Transfer of Property
Act. But, the SARFAESI Act has an overriding effect over all laws in force in

38 Shukla V N ëConstitution of Indiaí, Tenth Edition, Eastern Book Company, p. 651
39 See objectives of the SARFAESI Act.
40 Section 34 of the SARFAESI Act
41 Entry 45 List I of Seventh Schedule of the Constitution of India.
42 See Banking Regulations Act, 1949.
43 See Section 13(6) of the SARFAESI Act

72

.


SARFAESI Act and its Application to the State of Jammu & Kashmir: Problems ………..

India44. Given this, in the State of Jammu & Kashmir, the application of these laws
needs to be analyzed more cautiously.

Taking the operation of both the SAFAESI Act and the State laws relating
to the Transfer of Property Act into account there is an apparent conflict between
the two legislations. The application of one (SARFAESI Act) defeats the provisions
of another law (Transfer of Property Act) and precedence of Transfer of property
Act over the SARFAESI Act defeats the objective of SARFAESI Act. It is a very
well established rule of interpretation that it is the duty of courts, however difficult
it may be, to avoid conflict between two legislations because, it could not have been
the intent of the Legislatures that a conflict should exist. This rule called the Golden
rule of Harmonious Construction requires that all laws need to be construed
harmoniously by reconciling the conflict between the two. ëIt is only when such
reconciliation proves impossible, then, and only then, should the overriding power of
the union Legislature, the non obstante clause operate and the Union Power prevailí45.

Given the real intent and object of the Act, the application of the Act to the
State of Jammu & Kashmir will certainly help the banking Industry in the State of
Jammu & Kashmir, the importance of which cannot be ignored. But at the same
time, the special position of the State of Jammu & Kashmir cannot be ignored
which it draws from the Constitutions of India and the Constitution of Jammu &
Kashmir-the higher laws in the norm of laws and also from the Instrument of
Accession which is the mother of all relations between the State of Jammu &
Kashmir with Union of India. Therefore, the Act cannot override or defeat the
provisions of these laws. But keeping in view the importance and relevance of this
Act to the Banking Industry, the Banking Industry in the State of Jammu & Kashmir
cannot be denied the benefits which their counterparts enjoy in other States. The
Act should be applied to the State of Jammu & Kashmir as well but with certain
modifications. The modifications should be drafted in such a way that the application
and the operation of the Act to the State of Jammu & Kashmir does not violate
other laws of the State and more particularly does not take away the special right of
the permanent residents to own immoveable property in the State. Following options
are available through which the conflict can be solved.


  1. The State can make a law similar to the SARFAESI Act for the benefit of
    the Banking Companies in the State of Jammu & Kashmir. But since
    ëBankingí is a Union Subject46, such an act by the State Legislature will be
    an infringement into the powers of the Parliament to legislate.

  2. The State Legislature can incorporate the provisions of the SARFAESI
    Act into the Transfer of Property Act. However it will again be open to
    44 Section 35 of the SARFAESI Act
    45 Calcutta Gas Company v State of West Bengal, AIR 1962 SC 1044, c. f Shukla V N
    ëConstitution of Indiaí, Tenth Edition, Eastern Book Company, p 649
    46 Entry 45 List I of Seventh Schedule of the Constitution of India

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challenge on the ground of infringement into the legislative powers of the
Parliament.


  1. Insert a provision into the Central Act with the effect that the operation of
    the SARFAESI Act in the State of Jammu & Kashmir shall not be in
    derogation of the Jammu & Kashmir Transfer of Property Act and all
    other laws restricting the transfer of immoveable property to any person
    who is not a permanent resident of the State. This can be added in the form
    of proviso to Section 35 of the SARFAESI Act which gives priority to the
    Act over other legislations.
    The effect of such a proviso will be that any transfer by a baking company of the
    immoveable property owned by a state subject/permanent Resident shall not be
    transferable to a non state subject. However, provisions relating to the creation of
    Asset Reconstruction and Securitization Company need to be applied mutatis
    mutandis to the State of Jammu & Kashmir. For the State of Jammu & Kashmir,
    such companies shall also be ineligible to sell out permanently interest in the
    immoveable property of the defaulting borrowers to any person who is not a
    permanent resident of the State.

Conclusion:

Banking industry is one of the backbones of the economy. However the
banking industry is facing the ever increasing pile of Non Performing Assets. The
SARFAESI Act has come to the rescue of the Banking industry to get rid of their
bad debts. However, in its application to the State of Jammu & Kashmir the Act
comes in conflict with the provisions of laws relating to the transfer of immoveable
property in the State. There is a need to interpret both the Union and State legislations
need to be harmoniously so that both the laws are applied together. Given the
importance of the SARFAESI Act to the banking industry, the Banking companies
in the State of Jammu & Kashmir cannot be denied the benefits of this legislation
which their counterparts enjoy in other States. Therefore it is important to extend
the Act to the State of Jammu & Kashmir as well. However, at the same time, it is
equally necessary to ensure that the operation of the Act does not infringe upon the
existing rights of the permanent residents to enjoy the right to immoveable property
which in the State is exclusively given to them.

74


Definition of ìIndustryî under Industrial Disputes Act:
A critical study of conceptual Conundrum in its Exposition

Rubina Iqbal Ganai*
Faizan I Nazar*

ABSTRACT

The definition of industry has been taken from the common wealth
Conciliation and Arbitration Act, 1904 of Australia. A plain reading of
the definition would reveal the complex nature of the definition which
contains a compendium of several words like business, trade,
undertaking, manufacture or calling of employerís. It does not end here
but continues further to include any calling, service, employment,
handicrafts or industrial occupation or avocation of workmen.

Thus few more words synonyms to earlier group of words are
added. But by simple reading of the definition, it is difficult to
categorically state as to whether carrying a particular activity is or is
not an ìindustryî. This ambiguous nature of definition has been pointed
out by the courts in several decisions including especially Pattamal
Annachatram v/s Labour Court. This ambiguous nature of the definition
of the expression industry under sec 2(j) has given rise to a very
voluminous case law only on the issue of applicability of the Industrial
Dispute Act. In this Article reference is made to some celebrated and
recent cases on the definition of industry. Revealing that how on the
similar issue the courts have given conflicting judgements. This paper
also attempts to analyse the need for having a uniform definition of an
industry, for which a suitable amendment in Industrial Dispute Act, 1947
is required.

Keywords: IndustrialDisputesAct, Industry,Amendment, Judiciary,TripletestandActivity.

Introduction

The modern civilization is gauged by the industrial development of a country.

A country is said to be more civilized which is more developed in industrial field. In

the race of industrialisation of nations the world is fast becoming a workshop which

  • Ph.D Scholar, Department of Law, University of Kashmir.
    *LLM 1st Year Student, Departmentof Law, UniversityofKashmir.
    75
    Vitasta Law Journal, Vol.3 No.3, 2017

has resulted in the division of human factor of production, namely, capitalist and
labourer.1 Industrial jurisprudence is not a static, ridged code of cold text, but dynamic,
burgeoning and warm with life. Our industrial jurisprudence strives to treat capitalist
and labour as co-sharers and to break away from the tradition of labourís
subservience to capital. The primary concern of industrial jurisprudence is to maintain
peace among the various parties and ensure the contentment of the workers, the
end product being production informed by distributive justice. Law, especially labour
law, is the art of establishing economic order sustained by social justice. It aims at
pragmatic success, but is guided by value-based realities. It believes in relativity
and rejects absolutes.2 During the twentieth century a new branch of jurisprudence
known as industrial jurisprudence has developed in our country. Industrial
jurisprudence is a development of mainly post independence period although its
birth may be traced back to the industrial revolution. Before independence it existed
in a rudimentary form in our country. The growth of industrial jurisprudence can
significantly be noticed not only from increase in labour and industrial legislations
but also from a large number of industrial law matters decided by the Supreme
Court and High Courts.3 The purpose and aim of Industrial Disputes Act, 1947 is to
minimise the conflict between labour and management and to ensure, as far as
possible, economic and social justice.

Analysis of Statutory Definition

Industrial Dispute Act, 1947 defines ìindustryî to mean any systematic
activity carried on by co-operation between an employer and his workmen
(whether such workmen are employed by such employer directly or by or
through any agency, including a contractor) for the production, supply or distribution
of goods or services with a view to satisfy human wants or wishes (not being
wants or wishes which are merely spiritual or religious in nature), whether or not,ó

(i)
any capital has been invested for the purpose of carrying on such activity;
or
(ii)
such activity is carried on with a motive to make any gain or profit, and
includesó
(a)
any activity of the Dock Labour Board established under section 5A of the
Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);
1 Dr. H.K.Saharay, ìIndustrial and Labour Laws in Indiaî, Prentice Hall of India Pvt. Ltd.,
NewDelhi,Second Edition,1987, p, 1.
2 Shartath Babu and Rashmi shetty, ìSocial Justice and Labour Jurisprudenceî,Justice
V.R.Krishna IyerísContribution,SagePublication India Pvt. Ltd, NewDelhi,2007, p, 50.
3 S.N.Mishra, ìLabour and Industrial Lawsî, Central Law Publication, Allahabad,
TwentySixth Edition, 2001,p,1.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

(b)
any activity relating to the promotion of sales or business or both carried on
by an establishment but does not includeó
(1) any agricultural operation except where such agricultural operation is carried
on in an integrated manner with any other activity (being any such activity as
is referred to in the foregoing provisions of this clause) and such other activity is
the predominant one.4
This definition of industry in this clause is both exhaustive and inclusive
and is ambivalently comprehensive in scope. It is in two parts. The first part says
that it means any business, trade, undertaking, manufacture or calling of employees
and then goes on to say that it includes any calling, service, employment handicraft
or industrial occupation or avocation of workmen.5 Thus, one part defines it from
the standpoint of the employer; the other from the standpoint of the employees. The
first part of the definition gives the statutory meaning of the industry, whereas the
second part deliberately refers to several other items of industry and brings them in
the definition in an inclusive way. The first part of the definition determines an
industry by reference to the occupation of the employers in respect of certain
activities. The activities are specified by five words, namely, business, trade,
undertaking, manufacture or calling. These words determine the scope of the word
industry and they describe what the cognate expression ëindustrialí is intended to

4
Explanation.óFor the purposes of this sub-clause, ìagricultural operationî does not
include any activity carried on in a plantation as defined in clause (f) of section 2 of
the Plantations Labour Act, 1951 (69 of 1951); or

(1) hospitals or dispensaries; or
(2) educational, scientific, research or training institutions; or
(3) institutions owned or
managed by organisations wholly orsubstantially engaged
inany charitable, social or philanthropic service; or
(4) khadi or village industries; or
(5) any activity of the Government relatable to the sovereign functions of the
Government including all the activities carried on by the departments of the
Central Government dealing with defence research, atomic energy and space; or
(6) any domestic service; or
(7) any activity, being a profession practised by an individual or body
or individuals, ifthe number of persons employed by the individual or body of
individuals in relation to such profession is less than ten; or
(8) any activity, being an activity carried on by a co-operative society or a club or any
other like body of individuals, if the number of persons employed by the cooperative
society, club or other like body of individuals in relation to such activity is
less than ten.
5
Management of Fedretation of Indian Chambers and Industry v R.K.Mittal, (1997) 2
LLJ 630,635.

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convey. This is the significance or denotation of the term. The second part views
the matter from the angle of the employees and is designed to include something
more than what the term primarily denotes. By this part of the definition, any calling,
service, employment handicraft or industrial occupation or avocation of workmen,
is included in the concept of an industry. This part gives an extend connotation to
the word. Thus it is clear that the first part defines an industry in relation to the
activities of the undertaking i.e., the employer, while the second defines it in relation
to the work done by the employees, thus giving an extended connotation though this
part standing alone, cannot define what an is ëindustryí is.6

Statutory Gloss on Qualification of Industry

The question ëwhat is an industryí? has continuously baffled the courts ever
since the enactment of the Industrial Disputes Act, 1947. Though the Act provides
a definition of ìindustryî in section 2(j), the definition is not very precise and has
defied consistent interpretation. As a result, judicial effort has been directed at
evolving tests by reference to characteristics regarded as essential for regarding an
activity as an ìindustryî. The cases decided by courts, however, show that these
tests have not been uniform. The courts have been guided by an empirical rather
than a strictly analytical approach: sometimes the tests have been liberally conceived,
at other times narrowly.7

The Supreme Court was called upon to interpret the word ìIndustryî for the
first time in D.N Banerji v. P.R Mukherjee .8In this case Justice Chandersekhar
Aiyar Observed:

ìIt is obvious that the limited concept of what an
industry means in early times must now yield place to
enormously wider concept so as to take in various and
varied forms of industry, though the word
ìundertakingî in the definition of ìindustryî is wedged
in between business and trade on the one hand and
manufacture on the other and though therefore it might
mean only a business or trade, still it must be
remembered that if there were so, there was no need to
use the word separately from business or trade. The
wider import is attracted even more clearly when we

6 Ibid.

7 K.Chaudhri, ìChanging Concept of Industry Under Industrial Disputes Act;îEconomic
& Political Weekly, vol.xviii No 22, My 28, (1983) p, 1.

8 (1953)1 LLJ 195.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

look at the latter part of the definition which refers to
ìcalling, service, employment, or industrial occupation
or avocation of workmenî. Undertaking in the first
part of the definition and industrial occupation or
avocation in the second part obviously mean much more
than what is ordinarily understood by trade or business.
The definition was apparently intended to include within
its scope what might not strictly be called a trade or
business venture9.

The court accordingly dismissed the appeal filed by the municipality.10

In Madras Gyanmukh Club Employeeís Union v. Gyanmukh Club,11 it was
held that if the activity can be described as an industry with reference to the
occupation of the employers, the ambit of the industry, under the force of the second
part takes in the different kinds of activity of employees mentioned in the second
part. But the second part standing alone cannot define industry. By the inclusive
part of the industry for the purpose of industrial disputes although industry is ordinarily
something which employers create or undertake. However, the concept that
ìindustry is ordinarily something which employers create or undertakeî is gradually
yielding place to the modern concept which regards industry as a joint venture
undertaken by employers, and workmen, an enterprise which belongs equally to
both.12 Further it is not necessary to view definition of industry under section 2(j) in
two parts. The definition read as a whole denotes a collective enterprise in which
employers and employees are associated. It does not consist either by employers
alone or by employees alone.13 An industry exists only when there is relationship
between the employers and employees, the former engaged in business, trade,
undertaking, manufacture or calling of employers and the latter engaged in any
calling, service, employment handicraft or industrial occupation or avocation of
workmen. There must, therefore, be an enterprise in which the employers follow

9 The court in the course of its judgment referred to the following observations made by
Jt. Isaecs and Jt. Rich, in Federal Municipal and Shire Council Employees Union of
Australiav.Lord Mayor,Alderman,Councillors and CitizensoftheMelbourneCorporation,
26 CLR, 5008, 554-555. ìIndustrial Disputes occur when, in relation to operations in
which capital and labour are contributed in cooperation for the satisfaction of the human
wants and desires, those engaged in cooperation disputes as to the basis to be observed,by
the parties engaged. respecting either in share of the product or any other terms and
conditions of their corporation.î

10 The aforesaid decision was followed in Baroda Borough Municipality v. Its Workmen,
AIR 1957 SC110, Corporation of City of Nagpur v. Its Employees, AIR (1960) 1 LLJ 523.

11 (1967) 2LLJ 720,728(SC).

12 Workmen, I.S. Institution v. I.S.Institution, AIR 1976 SC 145.

13 Management of Safdarjung Hospital, Delhi v. Kuldip Singh, AIR 1970 SC 1407.

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their avocations as detailed in the definition and employ workmen.14 Thus, a basic
requirement of ëindustryí is that the employers must be ëcarrying on any business,
trade, undertaking, manufacture or calling of employersí. There is not much difficulty
in ascertaining the meaning of the words business, trade, undertaking, manufacture
or calling of employers in order to determine whether a particular activity carried
on with the co-operation of employers and employees is an industry or not but the
difficulties have cropped up in defining the word ëundertakingí.

ëUndertakingí means anything undertaken, any business, work or project
which one engages in or attempts, or an enterprise. It is a term of very wide
denotation. But all decisions of the Supreme Court are agreed that an undertaking
to be within the definition in section 2(j) must be read subject to a limitation, namely,
that it must be analogous to trade or business.15 Some working principles have
been evolved by the Supreme Court in a number of decisions which furnish guidance
in determining what the attributes are or characteristics which would indicate that
an undertaking is analogous to trade or business. The first of such principles was
stated by Gajendragadka, J. in Hospital Mazdoor Sabha case16 as follows:

ìAs a working principle it may be stated that an
activity systematically or habitually undertaken for the
production or distribution of goods or for the rendering
of material services to the community at large or a
part of such community with the help of employees is
an undertaking. Such an activity generally involves
the co-operation of the employers and employees; and
its object is the satisfaction of material human needs.
It must be organised or arranged in a manner in which
trade or business is generally organised or arranged.
It must not be casual, nor must it be neither for oneís
self nor for pleasure. Thus the manner in which the
activity in question is organised or arranged, the
condition of the co-operation between the employer
and employee necessary for its success and its object
to render material service to the community can be
regarded as some of the features which are distinctive
of activities to which section 2(j) applies.î

There are several decisions rendered by the Supreme Court pertaining to the
definition of ëindustryí under the Act, in respect of different activities, be they

14 Ibid.
15 Supra note 12.
16 State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

carried on by the State or otherwise. There have been various judicial ventures in
this rather volatile area of the law. The Act gives a definition of an industry in
section 2(j) but this definition is not vocal and it has defied analysis, so that judicial
effort has been ultimately reduced merely to evolving tests by reference to
characteristics regarded as essential for constituting an activity as an industry. The
decided cases show that these tests have not been uniform; they have been guided
more by empirical rather than a strictly analytical approach. Sometimes, these tests
have been liberally conceived, sometimes narrowly.17 The period till 1978 witnessed
the inconsistent approach of the apex court in interpreting the definition of ëindustryí
under the Act.

The judicial interpretations of the definition given in section 2(j) prior to 1978
appears to be based more on formal rationalisation of predisposition of decision-
maker rather than a logical application of any well settled principle.18 The Supreme
Court in its seven member Bench decision in Bangalore Water Supply & Sewage
Board V Rajappa19 gave new dimensions to the concept of industry as it was
defined in section 2(j) of the Act reviewing its earlier decisions on the subject. By
overruling its earlier decision in the Management of Safdarjung hospital, Delhi
V Kuldip Singh,20 National Union Of Commercial Employees V M.R,Meher, 21
Delhi University V Ram Nath,22 Madras Gyanmukh club employeeís union v
Gyanmukh Club,23 and Cricket Club of India V Bombay Labour Union,24 it
has been held that the test for determining whether a particular enterprise is industry
or not as laid down in its earlier decision in State of Bombay V Hospital Mazdoor
sabha,25 was a good law and reiterated that the above case was correctly decided.
The main judgement was delivered by Krishna Iyer, J and the concurring judgements
were given by the other judges on the bench. While approving the test laid down in
State of Bombay V Hospital Mazdoor sabha case, the court speaking through
Beg, CJ, Chandarchud, Bhagwati, Krishna Iyer and Desai, JJ held as follows:

  1. industry as defined in section 2(j) of the Act has a wide import;
  2. if triple test, namely; where there is :
    (a) systematic activity;
    (b) organised by co-operation between employer and employee (the direct
    and substantial element s (chemical);
    17 O.P.Malhotra, ìThe Law Of Industrial Disputeísî, vol-1, Butterworthís, Sixth
    Edition, 2004, p,135.

18 Prof. Suresh C.Srivastava, ìLabour Law And Labour Relations, Cases and Materialsî,
ILI, Third Edition,2007, P, 161.

19 AIR 1978 SC 548.

20 (1970)II L.L.J. 226 (SC).

21 AIR1962 SC,1080(S.C).

22 AIR1963 S.C 1879(S.C).

23 AIR1968 S.C554

24 AIR1969 S.C. 276.

25 AIR 1960 S.C. 610.

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(c) for the production and/or distribution of goods and services calculated
to satisfy human wants and wishes (not spiritual) or religiously but inclusive
of material things or services geared to celestial bliss) prima facia there is an
industry in the enterprise;

  1. absence of profit motive or gainful object is irrelevant, be the venture in
    public, joint, private or other sector;
  2. the true focus is functional and the decisive test is the nature of the
    activity with special emphasis on the employer-employee relations;
  3. if the organisation is trade or business it does not cease to be one because
    of philanthropy animating the undertaking; and
  4. although the section defining the concept of industry uses the words of
    the widest amplitude in its two limbs, their meaning cannot be magnified to
    overreach each other.26
    Therefore the consequences of the decision in this case are that professions,
    clubs, educational institutions, co-operatives, research institutions, charitable projects
    and other kindred adventures, if they fulfil the triple test stated above cannot be
    exempted from the scope of section 2(j) of the Act.

Dominant Nature Test

Where a complex of activities, some of which qualify for exemption, others
not, involve employees on the total undertaking some of whom are not workmen or
some departments are not productive of goods and services if isolated, even then
the predominant nature of the services and the integrated nature of the departments
will be true test, the whole undertaking will be ìindustryî although those who are
not workmen by definition may not benefit by status.

Exceptions

A restricted category of professions, clubs, educational institutions, cooperatives,
research institutions, charitable projects and even gurukulas and little
research labs, may qualify for exemption if in simple ventures, substantially and,
going by the dominant nature criterion substantively, no employees are entertained
but in minimal matters, marginal employees are hired without destroying the non-
employee character of the unit.27

If in pious or altruistic mission, many employ themselves, free or for small
honorarium or like return, mainly drawn by sharing in the purpose of cause, such as
lawyers volunteering to run a free legal service, clinic or doctors serving in their
spare hours in a free medical centre of ashramites working at the bidding of the

26 Dr. S.K.Puri, ìAn Introduction to Labour and Industrial Lawsî, Allahabad
LawAgency,Ninth Edition, 2005, P,410.

27 Bangalore Water Supply & Sewage Board V Rajappa, AIR 1978 SC 548.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

holiness, divinity or like central personality, and the services are supplied free or at
nominal cost and those who serve are not engaged for remuneration or on the basis
of master and servant relationship, then, the institution is not an industry even if
stray servants, manual or technical are hired. Such elementary or like undertakings,
alone are exempt not other generosity, compassion, developmental passion or
project.28

Sovereign functions, strictly understood, (alone) qualify for exemption, not
the welfare activities or economic adventures undertaken by Governments or
statutory body. Even in departments discharging sovereign functions, if there are
units which are industries and they are substantially severable, then they can be
considered to come within section 2(j).

It further observed that: ìUndertaking must suffer a contextual and associational
shrinkage as explained in D.N. Banerjee V P.R.Mukherjee,29. This yields to the
inference that all organised activities possessing the triple elements above mentioned,
although not trade or business, may still be industry provided the nature of the
activity, viz., the employer-employee basis, bears resemblance to what is found in
trade or business. This takes into the fold of ëindustryí undertaking, callings and
services, adventures analogous to the carrying on the activity, viz. in organising the
co-operation between employer and employee, may be dissimilar. It does not matter
if on the employment terms there is analogyî.30

Position afterBangaloreWaterSupplyv.A. Rajappa31

Supreme Court has given conflicting decision regarding definition of the term
industry. In some cases Supreme Court has, having liberal attitude, given a very
wide interpretation and in some cases a narrow interpretation has been given. A
bench of seven Judges in Bangalore Water Supply and Sewerage Board v. A.
Rajappa, wherein the question was whether the activity of the Board fell within
the ambit of ëindustryí, it went haywire and far beyond the confines of the case in
the name of judicial activism to bring every conceivable activity in the sweep of the
industry. The meaning which was given to the term ëindustryí is so wide and wild
that it covers perhaps any systematic activity under the sun leading to obscurity.
Bangalore Water Supply and Sewerage Board v. A. Rajappa, still holds the field
as it was the largest Judge Bench decision on the issue but there are cases which
have, though not permissible under the doctrine of ëprecedentí, decided in contrary

28 Ibid.
29 AIR1953 S.C58.
30 Bangalore Water Supply & Sewage Board V Rajappa, AIR 1978 SC 548.
31 AIR1953 S.C58.

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Vitasta Law Journal, Vol.3 No.3, 2017

to the decision of the Bangalore Water Supply case. A five judge Bench of the
Supreme Court has decided to refer the matter of reviewing the Bangalore Water
Supply case to a larger Bench.32

On account of conflicting judicial decisions it had become difficult to understand
the meaning of the word industry. Until specific legislative mandates emerge from
the Parliament, the court may mould the old, but not make the new law. Interstitially,
from the molar to the molecular is the limited legislative role of the Court, as Justice
Holmes said.î This was observed by Justice Krishna Iyer in Gujarat Steel Tubes
Ltd. V. Mazdoor Sabha , but, only if he could have kept his words in Bangalore
Water Supply and Sewerage Board v. A. Rajappa, where he actually drafted a
new ëdefinitioní of the term ëindustryí assuming the role of a crusader-legislator.
The broad sweep of the judgment brought within the Industrial Dispute Act several
institutions like educational institutions, solicitorís offices, State departments and
even charitable institutions.33

The Industrial Disputes (Amendment) Act, 1982 enacts altogether a new
definition of industry. The amended definition to a great extent incorporates the
views of the Supreme Court expressed in Bangalore Water Supply V. A. Rajappa.
This amended definition has not been enforced till now. It nullifies the effect of
many judicial decisions attempts to clarify the confecting views arising out of different
interpretations of the word industry adopted by the Supreme Court in various cases.

According to Bangalore Water Supply and Sewerage Board v. A.
Rajappa34, sovereign functions of the State cannot be included in industry. They
can aptly be termed as the primary and inalienable functions of a constitutional
government. Services governed by Articles 309 to 311 of the Constitution of India,
by the enactments dealing with the Defence Forces and other legislation dealing
with employment under statutory bodies may, expressly or by necessary implication,
exclude the operation of the Industrial Disputes Act, 1947. The functions which are
strictly performed by State are inalienable functions of Government such as
maintaining law and order, making laws, defence, and justice dispensation. It is only
these functions where the State enterprise can escape from the coil of industrial
law.But present stage is a stage of welfare State where State has to perform so
many functions for the welfare of citizens. At the stage of laissez faire, maintenance
of law and order and defence were the only functions to be performed by States
and the traditional concept of sovereign functions was including only maintenance
of law and order and defence of State. But in a welfare State government has to
perform so many functions, apart from maintenance of law and order and defence
of State, as enshrined under the Directive Principles of State Policy in part IV of
the Constitution of India. Every democratic state in the welfare society has to
achieve a goal of wellbeing of its citizens and Part IV requires State to achieve the
goal. It imposes a duty on the State to undertake may activities and therefore the

32 http://www.Wikipedia.com.htm, visited on 28-7-2012.
33 http://www.indiankanoon.com.htm, visited on 1-8-2012.
34 Supra note 31.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

extent of sovereign functions may not be confined to the three wings but there may
be other functions which are inalienable. In view of the constitutional duty imposed
on State to undertake many activities as provided by Part IV of the Constitution of
India, the extent of sovereign functions may not be confined to aforesaid functions
in as much as other functions may also be inalienable and they would not be,
undertaken by any private agency in a meaningful way.

In Shrimali v. District Development Officer,35 wherein there was an
undertaking of famine and draught relief works by State government by introducing
certain schemes to provide relief and some works were also provided to the affected
people, instead of distributing doles. The question arose that whether such functions
be sovereign functions. It was held that it would be difficult to hold the undertaking
to be an industry. What really follows from this judgment is that apart from the
aforesaid three functions, there may be some other functions also regarding which
a view could be taken that the same too is a sovereign function.

As to which function could be, and should be, taken as regal or sovereign
function was again examined in N. Nagendra Rao v. State of AP36, in which case
Sahai J. speaking for the Bench examined this question in detail and observed that
it would all depend on the nature of the power and manner of its exercise. As per
the decision in this case, one of the tests to determine whether the executive function
is sovereign in nature is to find out whether the State is answerable for such action
in Courts of Law. It was state by Sahai J. that acts like defence of the country,
raising armed forces and maintaining it, making peace or war, foreign affairs, power
to acquire and retain territory, are functions which are indicative of external
sovereignty and are political in nature. They are, therefore, not amenable to the
jurisdiction of ordinary civil courts inasmuch as the State is immune from being
sued in such matters. But, then according to this decision the immunity ends there.
It was then observed that in a welfare State, functions of the State are not only the
defence of the country or administration of justice or maintaining law and order but
extends to regulating and controlling the activities of people in almost every sphere,
educational, commercial, social, economic, political and even marital. Because of
this the demarcating line between sovereign and non-sovereign powers has largely
disappeared.

The aforesaid shows that if we were to extend the concept of sovereign
functions to include all welfare activities, the ratio in Bangalore Water Supply case
would get eroded and substantially.37 And in fact there are sets of cases who have
actually dissented from Bangalore Water Supply v. A. Rajappa, on the concept
of sovereign functions or regal functions, though they have not challenged it. Because

35 (1988)1GLR396.

36 AIR1994, 2663, 1994 SCC (6)205.

37 Goswamy,V.G,ìLabour IndustrialLawsî, 8th Ed.; Central LawAgency,
Allahabad; 2004, p, 130.

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of the sets of dissenting cases the confusion that, are governmental functions, stricto
sensu, industrial and if not, what is the extent of the immunity of instrumentalities of
government, still persists.

In Des Raj v. State of Punjab,38 it was held that having regard to the
activities of irrigation department of State of Punjab and applying the tests laid
down in various decisions of Supreme Court and particularly applying the dominant
nature test enunciated in Bangalore Water Supply case it must be held that the
irrigation department of State of Punjab is an industry.

Now it was the turn of telecommunication and postal department to be
scrutinized. Regarding telecommunication and postal department also there were
conflicting decisions wherein in some cases the department was held to be an
industry and is some cases the conclusion was opposite.

In Sub Divisional Inspector of Post v. Theyyam Joseph,39 wherein
respondent was appointed as a substitute to the regularly appointed ED Packer,
who had not joined duty after training. The appointment so made dehorns the rule.
About two years later his services were terminated. It was held that India as a
sovereign, socialist, secular, democratic, republic has to establish an egalitarian social
order under the rule of law. The welfare measures par take the character of sovereign
function and the traditional duty to maintain law and order is no longer the concept
of the sovereign function. The Directive Principle of State Policy under Part IV of
the Constitution of India and the performance of duties, provided therein, are
constitutional functions. One of the functions of the State is to provide
telecommunication facilities to general public and an amenity, and so is an essential
part of the sovereign functions of the State as a welfare state. It is, therefore, not
an industry.

Incidentally this decision was rendered without any reference to the seven-
judge Bench decision in Bangalore Water Supply case. In a latter two judge Bench
decision in Bombay Telephone Canteen Employeesí Association case40 this
decision was followed for taking the view that the Telephone Nigam is not an
ëindustryí.

Finally, the General Manager, Telecom. V.A.Sriniwas Rao,41which
overruled the Theyyam Joseph42case and it was held that Theyyam Joseph43 is in
direct conflict with the seven-Judge Bench decision in Bangalore Water Supply
case and it is not permissible to take a contrary view or to bypass that decision so
long as it holds the field.

38 AIR1988 SCR(3).
39 AIR1996 SC 1271.
40 1997 (2) LLJ 647.
41 1997 S.C 567.
42 1996 S.C 788.
43 Ibid.

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

Such conflict again arose in Chief Conservator of Forest v. Jagannath
Maruti Kondare44 and State of Gujarat v. Pratamsingh Narsinh Parmar,45 where
in the former case forest department of State of Maharashtra was held to be an
industry and in the later case it was held that forest department of State of Gujarat
is not an industry. In the case of Chief Conservator of Forest v. Jagannath
Maruti Kondare, scheme named Panchgaon Parwati Scheme was framed as per
the government resolution based on the policy decision taken in April 1976. The
scheme was to be initially for a period of five years and an area of about 245
hectares situated in a hill plateau on the southern outskirts and within easy access
of Pune city was selected for creation of a park under bio aesthetic development
for the benefit of the urban population. The appellant conservator of forests contended
that the scheme as well as the social forestry work undertaken had to be regarded
as part of inalienable or sovereign functions of the State and therefore not an industry
within the meaning of the Industrial Dispute Act, 1947.

Rejecting the contention the Supreme Court held that the dichotomy of
sovereign and non-sovereign functions of the State does not really exist. Whether a
particular function of the State is or is not a sovereign function, depends on the
nature of thepower and manner of its exercise. The Scheme in question cannot be
regarded as a part of inalienable or inescapable function of State for the reason that
the scheme was intended even to fulfil the recreational and educational aspiration
of the people. There can be no doubt that such a work could well be undertaken by
an agency which is not required to be even an instrumentality of the State. Therefore
the forest department of the State is an industry.

But then in State of Gujarat v. Pratamsingh Narsinh Parmar46, wherein
the question for consideration was whether the forest department in the State of
Gujarat where the respondent was appointed as a clerk can be held to be an industry
within the meaning of the said expression under the Industrial Dispute Act, so that
an order of termination, without complying with the provisions of Section 25-F of
the Act would get vitiated. It was held that if a dispute arises as to whether a
particular establishment or part of it where an appointment has been made is an
industry or not, it would be for the person concerned who claims the same to be an
industry, to give positive facts for coming to the conclusion that it constitute an
industry. Ordinarily a department of government cannot be held to be an industry
and rather it is a part of the sovereign functions. The respondent in the writ petition
had made no assertion with regard to the duty which e was discharging and with
regard to the activity of the organization where he had been recruited, though no
doubt he had been contended that the order of dismissal was vitiated for non
compliance of Section 25-F. In the absence of assertion by the petitioner as well as

44 2001(89)FLR253.
45 2001(89) FLR 323, JT 2001(3) SC326.
46 Ibid.

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the job of the establishment where he had been recruited, the High Court wholly
erred in law in applying the principles enunciated in Jagannath Maruti Kondhaer47
to hold that the forest department could be held to be an industry.

Due to the apparent conflict between these two cases, again a matter was
referred to the constitutional Bench of five judges in State of UP v. Jai Bir Singh.48
In this case it was held that a caveat has to be entered on confining ësovereign
functionsí to the traditional so described as ëinalienable functionsí comparable to
those performed by a monarch, a ruler or a non-democratic government. The learned
judges in the Bangalore Water Supply a Sewerage Board case seem to have confined
only such sovereign functions outside the purview of ëindustryí which can be termed
strictly as constitutional functions of the three wings of the State i.e. executive,
legislature and judiciary. The concept of sovereignty in a constitutional democracy
is different from the traditional concept of sovereignty which is confined to ëlaw
and orderí, ëdefenceí, ëlaw makingí and ëjustice dispensationí. In a democracy
governed by the Constitution the sovereignty vests in the people and the State is
obliged to discharge its constitutional obligations contained in the Directive Principles
of the State Policy in Part -IV of the Constitution of India. From that point of view,
wherever the government undertakes public welfare activities in discharge of its
constitutional obligations, as provided in part-IV of the Constitution, such activities
should be treated as activities in discharge of sovereign functions falling outside the
purview of ëindustryí. Whether employees employed in such welfare activities of
the government require protection, apart from the constitutional rights conferred on
them, may be a subject of separate legislation but for that reason, such governmental
activities cannot be brought within the fold of industrial law by giving an undue
expansive and wide meaning to the words used in the definition of industry.49

In Des Raj v. State of Punjab50, the Supreme Court held that irrigation
department was an ëIndustryí under Section 2(j), a two-judge bench of the Supreme
Court in Executive Engineer, State of Karnataka v. K. Soonasetty51 following the
decision in Union of India v. Jai Narain Singh52 and State of H.P v. Suresh
Kumar Varma53 held it to be not an ëIndustryí. The Allahabad High Court in State
of U.P v. Industrial Tribunal IV, Agra & Another54 following the decision of
Supreme Court in General Manager Telecom v. A. Srinivasa55 held that irrigation
department of the State is not an ëIndustryí. But the Patna High Court in State of

47 1957(59) BOMLR1029.

48 2005 S.C 897.

49 Manohar,V.R. and ChitaleyW.W,TheAIRManual,Vol.44; 5th Ed.;All
India Reporter Pvt. Ltd., Nagpur; 1989.

50 (1998) Lab IC 1713.

51 (1997) LLR889.

52 (1995) Supp 4672.

53 JT 1996 (2) 455.

54 (2002) LLR 609

55 1998 (78) FLR143 (SC).

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Definition of ìIndustryî under Industrial Disputes Act: A critical study of conceptual ÖÖ

Bihar v. Gajadhar Singh56 held that the department irrigation is not an ëIndustryí
under Section 2(j) of the Industrial Disputes Act, 1947.

In Sub Divisional Inspector of Post Vaikam v. Theyyam Joseph57, the
Supreme Court held that the Postal Department is not an ëIndustryí within the
definition of Section 2(j) of the Industrial Disputes Act, 1947. Same view was held
in Bombay Telephone Canteen Employees Association, Prabhadevi Telephone
Exchange v. Union of India58. In General Manager, Telecom v. S Srinavasa Rao59,
the question whether postal and telecom department was an ëIndustryí was placed
specifically before the bench of three judges was whether the telecom department
of the Union of India was an ëIndustryí. A three judge bench of the Supreme Court
answered the question in affirmative.60 In Senior Superitendent of Post Office,
Postal Department, Ludhiana v. Baljit Singh61, the Punjab and Haryana High Court
held that Postal Department is an ëIndustryí under Section 2(j) of Industrial Disputes
Act.

Conclusion and Suggestions

The law in force presently is the interpretation of the original Section 2(j)
by Rajappaís Case. Focusing solely on the merits of the case it is a super judgment
which has taken into consideration the social and economic culture of our country.
The decision is distinctly pro-labour as it seeks to bring more activities within the
fold of the Industrial Dispute Act 1947. In practical terms, the labour forces of the
country are much better position now, than they would have been had the amended

S. 2(j) been notified. This is because the amended S. 2(j) excludes some categories
of employment which squarely comes within the fold of Rajappaís case.
But at the same time, a glance at the judgment would suggest that it is
actually a different law altogether as compared to the original S. 2(j). The question
really is whether the judiciary is entitled to embark on such an expedition. Even in a
democracy, following the theory of separation of powers, the judiciary has implied
authority to fill in the gaps left by the legislature. But, a glance at Rajappaís case
and the decisions preceding it would suggest that the judiciary went far ahead than
merely filling the gaps left by the legislature.

It is obvious that even after the Bangalore Water Supply decision the judges
themselves are not satisfied with the interpretation of the definition. The need for
legislative reforms has been accentuated by all the judges. It may be relevant to

56 (2012) 1 LLJ 75.

57 (1996) 8 SCC 489.

58 (1997) 6 SSC 723.

59 AIR1998 SCC 657.

60 S.C. Srivastava, ìIndustrial Relations and Labour Lawsî, Vikas Publishing
House Pvt Ltd, Sixth Revised Edition-reprint, 2017, p 235.

61 2012(1) SLR199.

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point out here that a very sensible and pragmatic definition was attempted in the
Industrial Relations Bill of 1978 (Bill No 137 of 1978), under section 2(17). But with
thedissolutionof theparliament inAugust 1979, the billlapsed.This definition with
some additions and alterations, has, however, been enacted by the parliament in the
Industrial Disputes (Amendment) Act 1982 (Act 46 of 1982). The definition of
industry in section 2(j) has been substituted by the new definition by the Industrial
Disputes (Amendment) Act 1982 (Act 46 of 1982). Though the Act has been
substantially brought into force wef 21August, 1984 this definition has not yet been
brought into force.

Undoubtedly, it is of paramount importance that a proper law is framed to
promote the welfare of labour employed in industries. It is equally important that
the welfare of labour employed in the other kind of organisations is also promoted
and protected. But the kind of measures which may be required for the latter may
be different and may have to be tailored to suit the nature of such organisation, their
infrastructure and their financial capacity as also the needs of their employees. The
Parliament must step in and legislate in a manner which will leave no doubts. That
alone can afford a satisfactory solution to the question which has agitated and
perplexed the judiciary at all levels.

90


The Right to Information Act, 2005 and its Implementation

in India: An Analysis

Dr. Zubair Ahmad Khan*
Hina Varshney**

ìA popular government without popular information or the means of
acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.î

James Madison, The Federalist Papers, 1788

ABSTRACT

The need for transparency and accountability in governance system
of the country becomes more important especially to achieve the goals
of the good governance. In this context, the Government of India
provided a number of rights to its citizens, like the right to employment,
education, etc., but above all, the mother of all the rights is the right to
information, which makes rulers of the country responsible towards its
citizens in a true sense.

The RTI Act is a path-breaking legislation which signals the march
from darkness of secrecy to dawn of transparency. It lights up the
mindset of public authorities, which is clouded by suspicion and secrecy.
Openness in the exercise of public power ñ Executive, Legislative or
Judicial ñ is a culture, which needs to be nurtured, with privacy and
confidentiality being an exception. The effective implementation of the
RTI Act will create an environment of vigilance which will help promote
functioning of a more participatory democracy. In India, RTI Act was
introduced in 2005 and since then this law has proved to be a strong
weapon in the hands of people, for ensuring transparency in government
departments and containing corruption.

The present article attempts to study and analyze the RTI Act and its
implementation in India and suggests few measures to make it more
effective.

Introduction

Democracy requires an informed citizenry and transparency of information

which are vital to its functioning and also to contain corruption and to hold

Governments and their instrumentalities accountable to the governed.1

  • Reader, Department of Law, Aligarh Muslim University, Aligarh, India
    ** Research Scholar, Department of Law, Aligarh Muslim University, Aligarh, India
    1 The Preamble of the Indian Right to Information Act, 2005.

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Right to information has been seen as the key to strengthening participatory
democracy and ushering in people centered governance. Access to information
can empower the poor and the weaker sections of society to demand and get
information about public policies and actions, thereby leading to their welfare. Right
to information opens up governmentís records to public scrutiny, thereby arming
citizens with a vital tool to inform them about what the government does and how
effectively, thus making the government more accountable. Transparency in
government organisations makes them function more objectively thereby enhancing
predictability.

In recognition of the need for transparency in public affairs, the Indian
Parliament enacted the Right to Information Act in 2005. It is a path breaking
legislation empowering people and promoting transparency. While right to information
isimplicitlyguaranteedbytheConstitution,theAct setsoutthepracticalregimefor
citizens to secure access to information on all matters of governance.2In the words
of the Prime Minister3 ,

ì Efficient and effective institutions are the key to rapid
economic and social development, institution which can
translate promises into policies and actionable
programmes with the least possible cost and with the
maximum possible efficiency; institutions which can
deliver on the promises made and convertÖÖ, outlays
into outcomes. For institutions to be effective they must
function in a transparent, responsible and accountable
mannerÖÖ.The Right to Information Bill, will bring
into force another right which will empower the citizen
in this regard and ensure that our institutions and the
functionaries discharge their duties in the desired
manner. It will bring into effect a critical right for
enforcing other rights and fill a vital gap in a citizenís
framework of rightsî.

This law is very comprehensive and covers almost all matters of governance and
has the widest possible reach, being applicable to government at all levels ñ Union,
State and Local as well as recipients of government grants. Access to information
under this Act is extensive with minimum exemptions. Even these exemptions are
subject to strict safeguards.

2 Right to Information: Master Key to Good Governance, First Report, Second
Administrative Reforms Commission, Government of India, June 2006, p.1.
3 Source: PMís intervention in the Lok Sabha on the Right to Information Bill

debate, May, 11, 2005.

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The Right to Information Act, 2005 and its Implementation in India: An Analysis

Object oftheAct

The basic object of the Right to Information Act is to empower the citizens,
promote transparency and accountability in the working of the Government, curtail
corruption, and make our democracy work for the people in real sense. It goes
without saying that an informed citizen is better equipped to keep necessary vigil on
the instruments of governance and make the government more accountable to the
governed. The Act is a big step towards making the citizens informed about the
activities of the Government.4

Relevance of Right to Information in Indian Constitution

ìIf liberty and equality, as is thought by some are chiefly

to be found in democracy, they will be best attained

when all persons alike share in the government to the

utmostî.

Aristotle.

Thenotionof right toinformationgainedmomentumwhenArticle19 of theUniversal
Declaration of Human Rights was adopted in 1948 ensuring ìEveryone has the
right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.î5Also the International Covenant on Civil
and Political rights 1966 says that ìEveryone shall have the right to freedom of
expression, the freedom to seek and impart information and ideas of all kind,
regardless of frontiersî.6

After several sustainable grassroots campaigns and political will on the
part of the Government, the long awaited Right to Information Act, 2005 got the
ratification of both the Houses of Parliament on 12th May, and came into force
from 12th October, 2005. India can now proudly boost of being one of the 55 countries
that have comprehensive laws to protect the citizensí right to information.

One of the major objectives of Indian Constitution according to the preamble
is tosecurelibertyof thought andexpressions tothecitizens of India throughArticle
19(1) (a) of the constitution. The freedom of speech and expression means the
right to express oneís convictions and opinions and also to seek, receive and impart

4 Guide on Right to Information Act, 2005, Government of India, Ministry of
Personnel, Public Grievances & Pensions, Department of Personnel & Training, p-2.
5 Article 19, The Universal Declaration of Human Rights, 12th December 2010 from
the Official Site of the Universal Declaration of Human Rights.
6 Article 19(2), The International Covenant on Civil and Political rights 1966

Retrieved on 12th December 2010 from Official site of the Office of the United

Nations High Commissioners for Human Rights.

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information and ideas, either orally or by written, or printed matter or by legally
operated visual and auditory devices, such as the radio, cinematograph, loudspeakers
and the like. In short, it is the freedom to communicate oneís ideas through any
medium. Expression, probably, presupposes a second party to whom the ideas are
expressed or communicated. It thus includes the freedom of propagation of ideas,
their publication and circulation. The fundamental right to speech and expression
can never be exercised until and unless the information regarding public matters is
being circulated.7

The right to information is an immutable part of freedom of speech and
expression guaranteed by Article 1 9(1) (a) of Indian constitution. As held in the
respective cases of Bennet Colman v. UOI,8 SP Gupta v UOI,9 and Secretary,
Ministry of Information and Broadcasting v Cricket Assn. of Bengal.10 The
Supreme Court of India in Bennet Coleman case while taking into account the
News print control order, allotment of newsprint to a newspaper was restricted,
held that such restriction had not only infringed newspaperís right to freedom of
speech but also readersí right to read was cut down. And the readerís right to
access the newspaper was his right to information which was implicit in the right to
Right to freedom of speech and expression. Similarly in SP Gupta case the SC
observed that ìthe people of this country have a right to know every public act,
everything that is done in a public way, by those functionaries. They are entitled to
know the very particulars of every public transaction. Also in Secretary, ministry
of information & broadcasting v. Cricket Assn. of Bengal, the SC held that the
airwaves were a public property and its distribution among the government media
and the private channels should be done on equitable basis as the freedom of speech
included the right to impart and receive information from electronic media.

Alongside Article 19(1) (a), the other articles which secures right to
information under Indian constitution are Articles 311(2) and 22(1). Article 311(2)
provides for a government servant to make out why he is being dismissed or removed
or being demoted and representation can be made against the order. On the other
hand Article 22(1) a person can know the grounds for his detention. In Essar Oil
Ltd v. Halar Utkarsha Samiti, the SC held that right to information emerges from
right to personal liberty guaranteed by article 21 of constitution.11

7 Mr. Subhrajyoti Kundu, Democratic Need of Right To Information Act in India, Global

Media Journal – Indian Edition, December 2010
8 AIR1973 SC 106
9 AIR1982 SC 149
10 (1995) 2 SCC 161
11 AIR2004 SC1834

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The Right to Information Act, 2005 and its Implementation in India: An Analysis

Salient features of the Right to Information Act, 2005

Right to information (RTI) is inherent in democratic functioning and a
precondition to good governance and realization of all other human rights, including
education and health care that have intense and pervasive impact on all the human
activities.

Specifically, the main objectives of the law on RTI are: to operationalise the
fundamental right to information; to set up systems and mechanisms that facilitate
peopleís easy access to information; to promote transparency and accountability in
governance; to minimize corruption and inefficiency in public offices and to ensure
peopleís participation in governance and decision making.

RTI is based on the key concepts: i) The right of the public to access the
information and the corresponding duty of the Government to meet the request,
unless specifically defined exemptions apply; (ii) The duty of the Government to
proactively provide certain key information even in absence of a request.
The Act promises to make the right to information more progressive, participatory
and meaningful, as it encourages the common citizen to enthusiastically participate
in the whole process of governance.

The citizens are not only free to ask for information from the Government,
but also have the right to get it. The scope of the Act extends to all authorities and
bodies under the Constitution or any other law, and inter alia includes all authorities
under the Central Government, State Governments and Local Bodies. The nongovernmental
organizations (NGOs) substantially funded, directly or indirectly, by
the public funds also fall within the ambit of this Act.

A duty has been cast, in section 4 of the Act, on every public authority to
suo motu provide to the public with the information as prescribed therein, so that
the public has to take minimum recourse to the use of this legislation for obtaining
information.

The procedure of securing information as provided in section 6 of the Act,
prescribes a procedure, which is very simple. A citizen has to merely make a request
to the concerned Public Information Officer (PIO) specifying the information sought
by him. The fee payable is reasonable and information is to be provided free of cost
to citizens living below the poverty line.

To assure that the information sought is provided quickly, section 7 of the
Act, makes it mandatory for the PIO to provide the information within 30days. If
the information requested concerns the life or liberty of a person, it has been made
mandatory to provide it within 48 hours of the receipt of the request. The Act
provides for penalties in case of failure to provide information in time, or for refusing
to accept application for information, or for giving incorrect, incomplete or misleading
information, or destroying information and so on. In addition, the Information

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Commission has also been empowered to recommend disciplinary action against
the government servants.12

The Act establishes a two-tier mechanism for appeal. The first appeal lies
to an officer within the organization who is senior in rank to PIO. The second
appeal lies in the Information Commission. The jurisdiction of the lower court is
barred under section 20 of the Act. The categories of information exempted from
disclosure in this Act are kept to a bare minimum. Even the exemptions are not
absolute if disclosure of the information outweighs the harm to the public authorities.

Even in the case of security and intelligence agencies and organizations,
which are exempted from the provisions of this Act, if there were cases of allegation
of corruption and human rights violation, such exemption would not be available. In
cases of allegations of violation of human rights, information would be made available
after the approval of the Information Commission. This Act, thus, paves the way
for an empowered citizen, as well as an alert, efficient, responsive, transparent and
accountable government.

The Central/State Information Commission has a major role in enforcing
the implementation of the provisions of the Act as well as for educating the parties,
mainly information seekers and providers. The Commission is vested with the power
of a Court. Under Section 20, the Commission may impose penalty on the concerned
officials for denial of information and recommend disciplinary action against the
errant officials, who do not comply with the requirements of the Act. Moreover,
under Section 25(5) of the Act, the Commission may also advise the appropriate
Government in the matters of maintenance and preservation of records and the
norms for disclosure of information with a view to enabling the people to observe
and scrutinize the decision making process. The powers vested with the Information
Commissioner, who are appointed by the President of India/Governor of a state,
ensure effective implementation of the Act.13

Eight Years of RTI, Where Do We Stand?

Eight years of implementation of RTI Act has set the road to success and
brought forth many issues, challenges and opportunities. RTI has enabled people to
participate in the process of development, which has resulted in reduction of
corruption and establishing an open and participatory governance system. In effect,
RTI protects and promotes the socio-economic interests of every citizen, particularly
the poor, who are receiving the benefits of development as per their entitlement.

Citizens, poor or rich, have applied for and obtained information under this
law. Every governmental department and state-owned firm, including banks are
obliged to have PIOs to handle RTI requests. With this openness of the government

12 Mr. Subhrajyoti Kundu, Democratic Need of Right to Information Act in India,Global
Media Journal -Indian Edition, December 2010.

13 TheGazette ofIndia Extraordinary, MinistryofLawand Justice, Legislative
Department, New Delhi, 21st June 2005.

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The Right to Information Act, 2005 and its Implementation in India: An Analysis

processes before the public, awareness among the masses has increased which, in
turn, has brought accountability on part of the government, thus reducing corruption.14

Impact of the Act

In India, the Act has produced a better impact on the quality of the life of
the poor and the marginalised. During the past eight years, the Act has brought
positive changes in the levels of corruption and accountability. There are quite a
number of cases, where the Commission has ordered for providing the details of
the decision making processes including file noting, cabinet papers, records of
recruitment, selection and promotion of staff, documents pertaining to tender
processes and procurement procedure, lists of beneficiaries of government subsidized
schemes, such as food grains supplied through ration shops, water and electricity,
domestic gas, educational and health facilities, shelter for poor, muster rolls under
employment guarantee schemes, etc.

The disclosure of such vital information(s) resulted in checking corrupt
practices in delivery of services and ensuring the reach of entitlements to the poor.
Concrete steps needs to be taken to make the filing of RTI applications more
convenient.15

Implementation of theAct

ìWe live in an age of information, in which the free

flow of information and ideas determines the pace of

development and well being of the people. The

implementation of RTI Act is, therefore, an important

milestone in our quest for building an enlightened and

at the same time, a prosperous society. Therefore, the

exercise of the Right to Information cannot be the

privilege of only a few.î

Dr. Manmohan Singh, Prime Minister of India.16
RTI has helped people in making an informed choice. People have access to the
decision-making process, reasons for government delays, for example, why a ration
card is being unduly delayed. Common citizens can now escape harassment from
public officials. However, the efficacy of law does not depend on its content but on
its proper implementation. Governance has to be an open book and officials conscious
of the fact that they are liable for omissions and commissions during their tenure for
just and systematic work rather than doing things at the whims and fancies arbitrarily

14 Simi T.B., Madhu Sudan Sharma & George Cheriyan Analysing the Right to

Information Act in India, Briefing paper, 1/2010, Cuts International,p-4.
15 ValedictoryAddress at theNational Convention on RTI, October 15, 2006.
16Ibid,pp.5-6

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and getting away with itóafter all the affected are the countryís common masses
who bear the brunt of mismanagement. The RTI has to play a critical role in
systematic corrections rather than limiting its success to individual cases. Then only
the RTI Act can be considered a step towards ensuring a stronger and vibrant
democratic process in India.17

Most radicalprovisionoftheActisthat theinformationseeker need not
to give anyreason for it or prove his locus standi. Yet the task of implementing the
law isnot without major challenges. Lack ofadequate publicawareness, especially
inruralareas,lackofpropersystemto storeanddisseminateinformation, lack of
capacity of the public information officers (PIOs) to deal with the requests,
bureaucratic mindset and attitude etc. are still considered as major obstacles in
implementation ofthe law.

Also full implementation of proactive disclosures of the RTI Act is yet to
take place, though it may result in larger number of applications and consequent
higher level of pending requests. There is no or inadequate mechanism within the
public authorities to implement the provisions of the Act. Neither the government
nor the information commissions have taken adequate steps to ensure compliance.
In addition, the PIOs keep complaining of inadequate staff, fund and improper record
keeping systems as the biggest stumbling blocks in providing requisite information
to the public.18

The Right to Information law of 2005 signals a radical shift in our governance
culture and permanently impacts all agencies of state. The effective implementation
of this law depends on three fundamental shifts: from the prevailing culture of
secrecy to a new culture of openness; from personalized despotism to authority
coupled with accountability; and from unilateral decision making to participative
governance. Obviously one single law cannot change everything. But this fine
legislation is an important beginning. Its effective application depends largely on the
institutions created, early traditions and practices, attendant changes in laws and
procedures, and adequate participation of people and the public servants.19

Criticism

The new Act substitutes the Freedom of Information Act, 2002 to ìensure
greater and more effective access to informationî with ìmore progressive,
participatory and meaningfulî changes. However the new enactment lacks
meaningfulness in certain extent. A right to information legislation should assume

17 Bharti Chhibber, Right to Information Act: An Instrument for Stronger and Vibrant

Democratic Process in India, Mainstream, Vol XlVI, No 15, 2008.
18 Op.cit.,13,p.56
19 Op.cit.,1

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99
that the maximum information is to be available to the public. Openness of public
activities will be meaningful only if the disclosure of information is available to the
public in connection with framing of policies entering in contracts and also in decision
making. The circumstances which limit the right under section 8 is undefined,
covering the most of the governmental activities by leaving ambiguity.
The exemptions are much wider, being based on the type of the document
and not on the content of the document. The governmental agencies dealing in
revenue enquiry and security are excluded from the purview of the Act except in
case of allegation of corruption and human rights violation. Such a complete
prohibition irrespective of certain class of information gathered by them is
unwarranted that no public bodies should be completely exempt from complying
with the right to information law.
However the right to Information Act, 2005 appears to be progressive in
some other point of view. An effective and efficient two tier appellate mechanism
is provided in the Act. Strict time limit is given to respond the request for information
and disposal of the appeals. Independent adjudication mechanism under Central
and State level Chief Information Commissioner is provided. Every public body
except intelligence and security agencies of the nation is included in the exhaustive
definition of public authorityí.20
Suggestions for Effective Implementation of RTI Act
. Recommendations and suggestions to optimize the benefits from RTI have
been pouring in from various quarters. The report of the second
Administrative Reforms Commission entitled, ìRight to Information ñ
Master Key to Good Governanceî recommends that the Official Secrets
Act, 1923, should be repealed, as it is incongruous with the regime of
transparency in a democratic society.
. Other key recommendations include total reorganisation of public records
for effective implementation of the Right to Information Act. An office
should be set up in each State as a repository of all records, manned by
experts to monitor the same.
. One per cent of the funds for all flagship government programmes should
be earmarked for five years for updating records and building infrastructure.
At least half the members of the Information Commission (IC) should be
drawn from a non-civil service background. Thus the members will
represent variety and experience in society.
20 Advocate K.P. Pradeep, The Right to Information ñ New Law and Challenges,http://
rti.kerala.gov.in/articles/art001eng.pdf,p-3.
The Right to Information Act, 2005 and its Implementation in India: An Analysis

100
Vitasta Law Journal, Vol.3 No.3, 2017
. The catalytic role of the government and the NGOs in implementing RTI
needs to be appreciated and supported by the people at large. NGOs, whistle
blowers and media should be more active.
. The process of moving an RTI application has to be simplified.
. It is highly recommended that the appellate authority should also be included
within the penalizing provisions and not to put the PIO alone in the frame.
. Training of PIOs should be more structured.
Although conscientious officials have honored RTI but there are hordes of
others who have flagrantly violated it and resorted to all sorts of excuses to stymie
its use. The impact as a result has not been as salutary as desired. The goals are
achievable but it will take concerted, creative and decisive action from the
government as well as the community at large. If the Government fine tunes RTI
on the above lines it will definitely change peopleñ government interface and Indian
democracy would then benchmark with the best.21
Conclusion
Information is power, and that the executive at all levels attempts to withhold
information to increase its scope for control, patronage, and the arbitrary, corrupt
and unaccountable exercise of power. Therefore, demystification of rules and
procedures, complete transparency and pro-active dissemination of this relevant
information amongst the public is potentially a very strong safeguard against
corruption.22
Right to information is necessary for self-expression, which is an important
means of free conscience and self-fulfillment. It enables people to contribute on
social and moral issues. The right to information is implicitly guaranteed by the
Constitution. However, with a view to set out a practical regime for securing
information, the Indian Parliament enacted the Right to Information Act, 2005 and
thus gave a powerful tool to the citizens to get information from the Government as
a matter of right. This law is very comprehensive and covers almost all matters of
governance and has the widest possible reach, being applicable to Government at
all levels- Union, State and Local as well as recipients of government grants.23
RTI is a powerful tool that can deliver significant social benefits. It can
provide a strong support to democracy and promote good governance, by
21 Smita Srivastava, The Right to Information in India: Implementation and
Impact, Afro Asian Journal of Social Sciences,Volume 1, No. 1 Quarter IV,
2010,pp.15-16.
22 Harsh Mander & Abha Joshi, The Movement for Right to Information in
India: Peopleís Power for the Control of Corruption, 12th December 2010.
23 Op.cit.,3,p.1.

The Right to Information Act, 2005 and its Implementation in India: An Analysis

empowering the citizenís ability to participate effectively and hold government
officials accountable. Rather thanjust providinginformation, RTIAct inmost of the
countries has served to be an effective watchdog ensuring all those coming in
purview of the Act to work in accordance with rules and regulations, without any
irregularities.

However, stricter implementation of this law requires not only political will
but also active civil societies, RTI activists and few key democratic features, such
as respect for the rule of law. Currently, the RTI Act in India is passing through a
decisive phase, much more needs to be done to facilitate its growth and development.
Mere protest against the lack of implementation of this law alone is not sufficient,
one needs to encourage this initiative taken, for the law to grow and mature.24

24Op.cit.,16,pp.7-8

101


Patent Amendments in India in the Light
of Trips

Junaid Nazir*

Introduction

Intellectual property has assumed a completely new dimension in India
after the turmeric, Neem and the Basmathi disputes. The debates over the imposition
of Special 301 not only added to the realization of the need for strong intellectual
property laws but also increased the resistance to change. Ironically, Special 301
was at one time perceived as the most draconian piece of law dumped on the
Indians, until the WTO came and took over that image. Yet, these changes served
as eye-openers to the importance of intellectual property rights and set the stage
for legislation in this area of law.

The story of patents in India dates back to the first Indian patent law
which was enacted in 1856 and modelled on the same lines as the British Patent
Act of 1852. A proper institution and authority for the administration of patents,
however, was not established until the appointment of the Controller of Industrial
Patents and Designs by the Indian Patents and Designs Act in 1911. This Act
introduced rights over industrial designs and portions of the Act governed the laws
relating to industrial designs until as late as 2000, when the Indian Designs Act of
1999 was enacted. In 1959 the Government of India apponted Justices Rajagopala-
Ayyangar Committee1 to suggest revisions to the patent law. In 1965, based on this
report, a bill was introduced, but this bill lapsed in 1965 and again in 1966.This bill
was re-introduced in 1967 and eventually passed as the Indian Patent Act of 1970.
The rules based on this Act were passed in 1971 and the Act along with the rules
came into force in 1972.This legislation prevailed in the country undisturbed despite
the passage of Super and Special 301 and threats from the US.

The conclusion of the Uruguay Round in 1994 paved the way for more change
in this area of law. More importantly, India joined the World Trade Organization
(WTO) and became obligated to comply with the Trade Related Intellectual Property
Systems (TRIPS) although the obligations under TRIPS related to all the areas of
intellectual properties identified by TRIPS, it was the obligations related to patents
that required the most changes as far as India was concerned. With this as a

*LLB, LLM, University of Kashmir, Faculty Member of Vitasta School of Law &
Humanities.
1 The report of this committee is considered to be the back bone of the Indian Patent
law that was enacted in the year 1970.

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Patent Amendments in India in the Light of Trips

background, this paper examines, on a subject matter basis, the changes to the
Indian patent system brought about by TRIPS and Indiaís reaction to the same.

Exclusive Marketing Rights

Section 5 of the Indian Patent Act of 1970 (hereinafter,IPA.) provides that
patents will be granted to claims for processes or methods of manufacture (and not
for the substances) for inventions relating to food, medicine and chemical processes.
The policy behind this was to enable a developing country like India to benefit from
inventions from other countries by ensuring the availability of the same products at
cheaper prices produced by a different process2. Such access was required because
inventions in drugs and food were life saving in nature and India is a country with 50
million people living below poverty line who otherwise could not afford them. This
is especially true in the case of drugs patented abroad, which have a much higher
cost.

Article 27 of TRIPS, however, provides that members are obligated to
provide patent protection for any invention, whether products or processes, in all
fields of technology without discrimination based on the place of invention or
production or field of technology. Article 65 gives India until 2005 to establish its
product patent regime. Furthermore, Art. 70 (8), read with Art. 65 (2) and (4) of
TRIPS, obligates developing countries to provide for a mailbox mechanism for
depositing applications and an exclusive marketing regime right (hereinafter, EMR)
for such inventions during the interim period. The mailbox3 provision mandates that
such a facility should be available during the interim five years (until 2005) or until
the time the product patent was introduced. The applicant is entitled to an exclusive
marketing right over the product provided that a .patent application has been filed
and a patent granted for that product in another member state and marketing approval
has been obtained in such other member. India was required to fulfil this obligation
by January 1, 1995.

In order to fulfil the TRIPS obligations, the President of India on December
31, 1994, promulgated the Patents (Amendment) Ordinance to amend the Patent
Act of 1970 and provide for an EMR. The Ordinance became effective on January
1, 1995 and India notified the Council for TRIPS as required under Article 63(2) of
TRIPS. However, the Ordinance lapsed on March 26, 1995 since legislation of this
kind ceases to apply at the expiration of six weeks from the re-assembly of
Parliament. The Patents (Amendment) Bill of 1995, which was intended to give
permanent legislative effect to the provisions of the Ordinance, was passed by the

This provision was amended to fulfil the requirements of TRIPS Article 27(1). The

Patent Amendment Act, !999 now provides for exclusive marketing rights for these

categories of substances till the grant of product patent in the year 2005.
3 A facility that enables the filing of patent applications for chemicals, food and drugs

till the time the product patent regime is in place.

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Lok Sabha in March 1995, but unfortunately lapsed in the Rajya Sabha. Therefore
the Patents (Amendment) Bill lapsed with the dissolution of the 10th Lok Sabha on
that date in November 1995.

The Indian sentiment over the introduction of EMRs also accounted for the
lapsing of the bill. Indian Drug manufacturers believed EMRs would lead to the
destruction of the local drug industry and that it was more restrictive than even the
product patent regime. They argued that foreign drug companies would get the
right for exclusive marketing in India before going through an examination in India.
Indian drug manufactures also felt that EMRs did not address domestic production,
thereby leaving the ground open for foreign multinationals to take over the market.
However, the biggest impediment to the implementation of the EMR legislation was
the fear that the cost of medicines would increase substantially and that Indian drug
companies would be driven out of business. Notably, only 7 out of more than 250
drugs in the WHO list of essential drugs are on patent. Therefore about 90% of the
drugs would have been off patent in any case and would be available to the public
without any patent restrictions. Moreover, market forces determine the prices of
new products. The prices of therapeutic equivalents and generic drugs remain
unchanged. The Deputy Controller of Drugs in India also noted that globally around
15 to 20 drugs enter the market every year and only a few of them are commercial
successes. At the same time, each year patents continue to expire for earlier products.
In any case, none of the drugs that have a patent anywhere in the world can be
patented in India by virtue of Section 13 (2) of the IPA, which provides for a
universal search. Most of the drugs required by the common man are produced
indigenously and not abroad. In India, the Government administers drug prices through
the Drug Prices Control Order so the Deputy Controller of Drugs offered assurances
that the Government could still intervene and control the prices if required. (However,
the power of the Government to control the prices will substantially decrease after
the product patent regime comes into play. In any case, such a control would violate
Art.31 of TRIPS.) Professor A.V.GANESAN4 also pointed out that around 650
patented drugs were introduced in the world market in the past 15 years (from 1983
to 1998) of which 72 were introduced into the Indian market under the existing
dispensation between 1986 and 1998. In the last five years, i.e. 1994 to 1998 alone,
39 new drugs were introduced in the Indian market. There has generally been a
gap of three to five years, if not more, between the introduction of a new patented
drug in the world market and its subsequent introduction in the Indian market. It can
therefore be surmised that the Indian market may, on an average, see 5 or 6 new
patented drug introductions each year for the foreseeable future. This means that
people in India will die of diseases for 20 long years although a cure is available and

4 A.V.Ganeshan, The Implication Of Patent Amendment Ordinance, 1999, Indian Council
For International Economic Relations, (February, 1999)

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Patent Amendments in India in the Light of Trips

yet unavailable ñ a tragedy their luckier American counterpart will not have to
face. Such is the bastardized value of life of some people.

The US has estimated an annual loss of 450 billion dollars due to piracy in
India5. It is unclear how the drug industry in the US plans to offset this loss after the
introduction of the product patent in India if Indian industry will continue to have
the benefit of introducing drugs that are off patent. In any case, if health care is the
issue, patent law is possibly not the best method of trying to tackle the issue of drug
price control. Maybe India should look at the Health Care laws as an alternate way
to tackle this issue.

More importantly, EMRs were simply meant as transition protection, and
because it takes typically 8-10 years for a drug to move from the patent application
stage to the market. Articles 70(8) and 70(9) apply only to new drugs patented on
applications made after January 1, 1995. Therefore, the EMR provision would not
have lead to an increase in new patented drugs in the Indian market nor would it
have been a route for the introduction of known product or products that were
already in the public domain in India. As an afterthought, India would have been
better off just implementing the EMR provisions on time. Instead, it ended up in a
dispute on an inconsequential issue that only lead to the loss of credibility for the
country. As for product patents, they are not due till 2005 by which time India will
have ample time to restore its mechanisms.

A. The Mail Box Dispute
Amidst all of this, India did not fulfil its obligation to have a transitional
system within the stipulated time period. Therefore, the United States asked for a
consultation 6with India, which ultimately failed. The U.S. then requested the Dispute
Settlement Body (DSB) of the WTO to examine whether India had defaulted in its
TRIPS obligation. India argued that the applications for chemical and biological
patents were being filed in the patent office which in itself constituted an effective
means as required by TRIPS. Moreover, India said that its patent legislation had
been supplemented by administrative notifications that had the force of law.
Notwithstanding the above, India argued that as a developing country it was entitled
to delay the process under Article 65 (2) for a period of 4 years. The U.S. argued
that the mere fact India felt the need for an ordinance at the outset indicated that
there was a need for a formal legislation. The Panel7 ruled that India was in default

5 Intellectual Property Rights in India, available at http:// www.indiaonestop.com

6 On July 2, 1996 under Article 4 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes read with Article 64, the US asked for a
consultation which failed on July 27, 1996.

7 GATT Dispute Panel Report on U.S. Complaint concerning Indian Patent Protection
for Pharmaceutical and AgriculturalChemical Products, (September 1997) available
at http:// www.wto.org.

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of its obligations because the administrative notifications could not be considered as
in compliance with the requirements in TRIPS. The Panel also held that India was
obligated under 70(9) to have a transitional system in place immediately and not
after five years. This ruling was upheld by the appellate body. After the decision of
the appellate tribunal of the WTO, India was forced to amend the IPA to avoid
facing trade sanctions. Hence both the BJP and Congress party (which were at
that time the opposition and the ruling parties respectively) were forced to put the
much-delayed legislation in place. The Patent First Amendment Act was thus passed
in December 1999.

B. Patent FirstAmendmentAct of 1999
This amendment introduced Chapter IVA dealing with exclusive marketing
rights. The amendments under Section 24A(1) mandates that the Controller to refer
every application seeking an EMR to an examiner to see whether it is an invention
for which a patent can be granted under Section 3 and 4 (and not under Section 5
which previously excluded drugs etc). Unless the Controller is satisfied that the
claimed substance will not qualify for a patent under Section 3 of the Act, (in which
case he can reject the application), he may proceed to grant an EMR. Section
24A(2), read with Rule 33G, allows the Controller to conduct tests and report it
within 90 days thereby avoiding delays. The critical aspect is the issue of subjectivity
vested in Controller to determine whether it is an invention falling within Section 3
and 4, which will be the decisive factor for granting the EMR. However, this cannot
be avoided since the office mechanism is not well equipped to accommodate a
more expansive process.

Section 24B(1)(b) authorizes the grant of an EMR for five years for
inventions made in India on or after January 1, 1995 and for which a claim for
process patent has been made, and granted. This provision has been criticized as
being discriminatory on the basis of place of invention and contrary to the national
treatment provision of TRIPS. However, the discrimination here is actually not on
the basis of placeof invention but on thegrant of a process patent. TheAct provides
for this discrimination because in India there will only be process patent applications
(as the product patent regime is not in place yet) and this can be disadvantageous to
the applicant.

In the case of substances that can be used as medicines or drugs, Section
24B(2) provides that prior publication or use, before the filing of the claim for patent
by the applicant either in India or in a convention country, will not constitute EMR
infringement. However, it implies that such prior use excludes use by the third
persons. It also does not specify whether such use by a third person (or even by the
person himself), will bar the patentability of the invention (as in the United States).
If it does bar patentability, then a person who clearly has an un-patentable invention
is getting an EMR for five years. If it does not bar patentability, then it will violate
Section 13 that bars patentability if the document has been published earlier in India

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or abroad. To qualify as a prior user, commercial use by the third party should be
mandatory. Rule 33F of the draft rules states that documents relating to specifications
and trial or use referred to in Section 24B(2) shall include public documents, public
trials or use, and interestingly, specifies that it shall not include personal documents
or secret trials or use. Thus implying that such a secret use by a person who later
applies for a patent can constitute EMR infringement.

C. Legislative action for Second Amendment
Other than the EMR, India had two more milestones to cross along the TRIPS
barrier ñ to introduce other changes to the IPA by January 1-2000 and to introduce
product patents by January 1, 2005. The Patent Second Amendment Bill of 1999
was introduced in the Upper House on December 20, 1999 to cross the first milestone
(and avoiding running into the DSB in Geneva) and to amend the IPA to make
changes that were required immediately. The bill, however, was not passed by the
Rajy Sabha and was referred to the Select Parliamentary Committee. The committee
examined the bill and decided that they needed to understand the issues further
before they could send their report. The committee therefore decided to tour various
countries which include Brazil, Argentina, China, Japan, Korea and Canada to imbibe
best practices before incorporating their suggestions and submitting the report. It is
unfortunate that the Select Parliamentary Committee, after coming all the way to
Canada, did not choose to visit the U.S. to study its patent system. If nothing else,
the committee could have passed itself off as being smarter and could have helped
ease the tension. The elaborate tour of the world can now be interpreted as one
more effort by India just to be stubborn and irrational when dealing with WTO
issues. In any case, India has already defaulted on the deadline that was set at
January 1, 2000. This tour by the Parliamentary committee had further delayed the
submission of the bill for few months.

A subject-by-subject discussion of each area sought to be amended by the second
amendment is provided below:

  1. Patentable Inventions
    The Second Amendment Bill amends the definition of invention in Section
    2(j). Under the IPA, an invention has to be a new and useful art, process, method or
    manner of manufacture, machine, apparatus or other article or substances produced
    by manufacture. The courts, however, had already defined the terms new and
    useful. The Supreme Court, in 19828 summarized the requirements of a patentable
    invention as follows:

8 Bishwanath Prasad Radhy Shyam v. Hindustan Meta Industries, A.I.R. 1982 SCC 144.

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1) It has to qualify under the test for new and useful which is to say utility and
novelty.
2) It must be the inventorís own invention as opposed to a mere verification of what
was already known before the date of the patent; and
3) An inquiry into whether a particular process of manufacture involves novelty and
an inventive step to qualify as an invention is a mixed question of law and fact
dependent upon the circumstances of each case.

On the other hand, the definition introduced in the second amendment
requires that an invention should have an inventive step and is capable of industrial
applications which are synonymous with non-obvious and useful respectively.
Professor Gopalakrishnan opined that this current statutory definition does not in
any way alter the requirements under the old definition.9 The criterion of non-
obviousness was a part of the pre-grant opposition envisaged under Sec 25(1)(e) of
the IPA. However, the new definition will force a different treatment of inventive
step for the test of patentability and for the opposition procedure.

  1. Exclusions from patentability
    The Bill amends the existing Section 3 which provided a list of exclusions
    from the definition of invention to be in line with TRIPS. The new definition excludes,
    in sub-section 3, inventions whose primary or intended use or commercial exploitation
    is contrary to law and morality. The exclusions regarding primary and intended use,
    however, may also be contrary to Art. 27(2) of TRIPS which limits exclusions from
    patentability to inventions, the commercial exploitation of which is necessary to
    protect ordre public or morality.Moreover, the proviso to Art 27(2) envisions that
    .such exclusion is not made merely because the exploitation is prohibited by their
    law. Therefore, TRIPS not only envisions the Indian legislation, but also that such
    an exclusion is in line with the international trend of patentability. Therefore it is not
    clear whether the exclusion envisioned in the Bill mentioned above will be acceptable.

The Bill also amends the previous clause (i) to exclude medicinal, surgical,
curative, prophylactic, diagnostic, therapeutic treatments for humans, plant and
animals. TRIPS, however, does not envision such an exclusion for plants. It also
does not exclude medicinal and surgical methods. The exclusions in India extend to
treatment of diseases, (acceptable under TRIPS), or to increase their economic
value or that of their products. However, the arguments for including plants and the
exclusions for economic gain may be justified under the grounds of ordre public,
more so, since there is the Plant Variety Protection Act of 1999 in India. India also
excludes the patenting of computer software and business methods patents

9 Dr N S Gopalakrishnan, The Patent Second Amendment Bill – An Analysis, (A
Submission MadeToThe Select ParliamentaryCommittee In India For The ReviewOf
The Patent Act, 1970)

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Patent Amendments in India in the Light of Trips

specifically and biotech patents by implication. It is yet unclear whether that will be
acceptable under TRIPS. It is notable that Argentina and Brazil have carved out
similar exceptions to their definitions of patentability.

  1. Term and Date
    Article 33 of TRIPS specifies a 20-year patent term from the date of filing
    of the application. Section 53(1)(b) of the IPA limited patent protection to 14 years
    from the date of filing of the complete specification under Section 45 (except in the
    case of a process patent where it is five years from the date of sealing the patent).
    The proposed bill amended the 14-year term to 20 years beginning from the date of
    the filing of the application.
  2. Application Requirements
    Section 8(d) of the proposed bill amends Section 10 of the IPA (relating to
    the specification) and requires ìan abstract of the technical information of the patentsî
    However, there is neither a definition of the term ìabstractî nor is there any criterion
    for the kind of technical information that is required. Regardless of much the IPA is
    amended to suit TRIPS, unless the law and the rules relating to claims and
    specifications including drafting, interpretation, etc are harmonized or, at least clarified,
    the grant of a patent will always rest on very subjective factors.

Section 8 also requires identification of the source and origin of the biological
material in the specification. Although such a requirement is not envisioned under
TRIPS, it does not specifically prohibit Members from seeking the source and origin
ofbiologicalmaterial.This provisionwillgoa longwayinavoidingtheTurmeric and
Neem type disputes for India. The best solution is to possibly include it, not as a
requirement of the application but as falling within the criterion of anticipation and
obviousness within the Patent Rules.

  1. Compulsory Licensing
    Chapter XVI of the IPA provides for compulsory licensing -as a necessary
    safeguard for protecting the public interest. Three years after a patent is sealed,
    any ìinterested partyî can allege that the invention is not reasonably available to
    the public and can request the grant of a compulsory license. The Bill removes
    Section 86 to 88 of the IPA which previously provided the right to the Central
    Government to seek a ìlicense of rightî over patents not worked for three years in
    India. The Bill also amends Section 90 which deemed that reasonable requirements
    of the public are not satisfied if the invention is not manufactured in India or the
    patentee refuses to grant a license, thereby removing a presumption that requirements
    of the public are satisfied based on local manufacture. The criterion to be considered
    by the Controller to grant a compulsory license under Section 85 has also been

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amended to include a national emergency, etc. (and local manufacture is not one
such criterion). Interestingly, under Section 84, a specific inclusion has been made
enabling third parties to seek for a compulsory license on the ground that the invention
is not manufactured in India. Similarly, in Section 89, the Bill introduces non-working
in India as a specific criterion for the revocation of the patent. Section 90(c), which
provides non-working in India under certain circumstances as a ground for imposing
a compulsory license, has not been revoked. This is envisioned as a balancing
mechanism, but there is a likelihood of it being interpreted as violating the right of
the patent holder to import as established under Art 27 and Art 28 of TRIPS. Article

27.1 of TRIPS provides that patent rights shall be enjoyed .without discrimination
as to the place of invention, field of technology and whether the products are imported
or locally produced.
The Indian Government opines that its provision is in line with Article 31 of
TRIPS that allows for the use of the patents within certain terms and conditions. It
is also interesting to note that several countries including the Honduras, Argentina,
Brazil (which has several types of compulsory licenses, including for lack of local
working, national emergency, dependent patents, public interest and abuse of the
rights) and China have incorporated provision relating to compulsory licensing. The
Indian Government also pointed out that there have been no instances of misuse of
the provisions relating to compulsory licensing in India since 1970. The foreign
multinationals, however, are sceptical that once the product patent regime comes
into place the Government could potentially misuse the same. It would be prudent
to wait and watch the Governmentís use of the provision before assuming the
worst. After all, more than 80% of the patents owned in India are owned by foreign
multinationals. It is a fact that local manufacturing in India, where labour and raw
materials are cheap, will go a long way in reducing cost of the product. The bill also
introduced a checking mechanism that requires an applicant for a compulsory license
to prove that he approached the patentee with reasonable terms for a license.
Similarly, where the patent holder imposes a condition for a grant back, prevention
of challenges to the validity of the patent is deemed to be against public interest.
This is a very welcome provision and is absolutely required considering that the
bargaining power of an individual or company, compared with a patent holder, is
always less. The Bill provides for an appeal before an Appellate Board on decisions
of the Controller, including a grant of a compulsory license. Section 95A, as introduced
in the Bill, also provides for revocation of the compulsory license by the Controller
himself if the circumstances that gave rise to it ceases to exist.

  1. Right to import & parallel import
    The IPA did not vest on the patentee or a license holder the right to import
    a patented product into India, thus favouring local manufacturing. After the second
    amendment almost all of the restrictions on the need for local manufacturing had
    been removed. Hence there was a need to ensure the accessibility of products in all

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Patent Amendments in India in the Light of Trips

ranges of cost for the Indian consumers. Therefore, the Bill introduces Section
107(A) (b) which states that importation of a patented product from a duly authorized
license holder will not amount to infringement. This favours parallel importation of
the patented product from a licensee in another country. Section 48 of the bill vests
the right to import only in the patent holder. Section 107(A) (b) discusses only
infringement and is subject to the product being validly patented and from a license
holder. This section treats the issue of infringement differently from the issue of
vesting the right of importation. The right to import is only given to the patent
holder as envisioned under TRIPS. However, importing a patented product from
either the patentee or from a valid license holder will amount to infringement. This
provision is valid under TRIPS and there are several examples of such treatment
for various issues in patent law even in the American jurisprudence such imports
can also be justified on the doctrine of exhaustion. This doctrine specifies that the
patent holder does not have any control over a buyer or a licensee once the product
has been placed on the market. However, the concept of exhaustion is also based
on an implied license and therefore suggests that a buyer can remanufacture the
goods and import them into the same market for lesser cost. This argument would
completely defeat the object of TRIPS and to some extent patents themselves.
Hence Section 107(A) (b) was included with the specific objective of defining the
contours of such imports and also retaining the spirit of TRIPS. This is a very
laudatory move -it will restrict spurious parallel imports into the country, will balance
the effect of taking away the need for local production and will also be in line with
TRIPS.

Patent (Amendment) Act 2005 ñSalient Features

  1. In the definition of what are not inventions, the amendment now says
    ìMere new use for a known substanceî is not an invention. In other
    words if the applicant can substantiate that it is new use for a known
    substance with some technical input such new use can be patented.
  2. A computer program per se is not patentable but its ìtechnical application
    to industry or a combination with hardwareî is patentable. The scope
    of patentability of a computer program has now been widened and is more
    or less on lines with US Patent grant.
  3. A mathematical method or business method or algorithms are not patentable.
  4. The provision prohibiting product patent for food, medicine, drug and
    chemical processes has been removed. In India with effect from 1st January
    2005 product patent is available for medicine, drug, chemical processes
    and food. This is the most important amendment introduced by the new
    Ordinance. Product patent regime in respect of drug, medicine, food and
    chemical processes is implemented in India.
    111
    Vitasta Law Journal, Vol.3 No.3, 2017
  5. If a patent application is accompanied by a provisional specification, the
    complete specification should be filed within 12 months of filing of the
    application. Otherwise the application shall be deemed to be abandoned.
  6. A patent application shall be examined only on a request in prescribed
    manner. Without a request the patent applications would not be examined
    as a matter of routine as it was prior to the year 2003.
  7. Provisions relating to Exclusive Marketing Rights (EMR) have been
    removed. EMR provision was introduced in India in the year 1999 in
    compliance with TRIPS as product patent for drug and medicine was not
    available in the Indian Act. As product patents can now be granted for
    drugs, medicines, food, and chemical processes the EMR provision has
    become redundant and has been repealed.
  8. When a patent has been published but has not been granted, any person
    can make arepresentation to the Controller of Patents requesting him to
    refuse the application on the ground of lack of novelty, inventive steps, and
    industrial applicability. The Controller shall consider such representation
    and dispose it off. The person making the representation is not a party to
    the proceeding. After the grant of a patent but before the expiry of the
    period of one year from the date of publication of grant of a patent, any
    person interested may give notice of opposition to the Controller.
  9. Only after grant of patent the application, specification and documents
    related thereto are opened for public inspection.
  10. The Act now provides for compulsory license for manufacture and export
    of patented pharmaceutical products to any country having insufficient or
    no manufacturing capacity in the pharmaceutical sector for the concerned
    product to address public health problems providedcompulsory license has
    been granted by such country. To avail of this provision, the applicant
    should satisfy two conditions viz.
    (a) The country to which export has to be made has insufficient or no
    facility to manufacture.
    (b) The recipient country should grant compulsory license for import and
    sale of the drug.
  11. The Act also provides for appeal from the order of decision of the
    Controller to Intellectual Property Appellate Board (IPAB). The power of
    revocation is also conferred with IPAB.
    Conclusion

The Indian Patent Act 1970 has been in need of change for several years
now. It is important for a country like India, with a huge market and potential for
international trade, not to neglect its legal system -particularly in an area like

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Patent Amendments in India in the Light of Trips

patents, which are the cornerstones for development. However, all the amendments
made are inadequate unless the patent system, especially the patent office and
patent enforcement, is improved. Otherwise this entire patent legislation will become
a paper tiger with minimal enforcement and continued WTO disputes, leading
nowhere both for India and for the countries that seek to trade with India. The
changes that will be effected on account of TRIPS are not, as such, bad for India.
However, such change should come with the realization of the importance and the
need for a similar system for India. The continued WTO reproach and the thrust by
the pharmaceutical companies, giving little respect for Indian sentiment, will be a
mutually destructive exercise.

Although the recent amendments are laudatory, it is important for India to
improve many areas, including training to judges for patents, improving the Patent
Rules and improvise the Sections and Rules relating to claims, to improvise the
Patent office and to centralize the functions of the patent office. The first step,
however, lies in understanding the correlation between trade, development and
intellectual property.

Today the market potential in India has attracted a new wave of investment
by foreign multinationals and the talent generated in India is recognized across the
world, making the need to merge with the rest of the world even more imminent.
Unless the legal and trade issues are in place, India will be left far behind. Trade
today implies that Indian companies and lawyers meet their foreign counterparts in
national and international forums. Unless the country devotes time to develop its
system, the lack of professional depth and efficiency will be the causalities, which
will be detrimental to India in the long run.

113


The Second Generation of Human Rights: A
Discussion About Their Enforceability
Shahid A. Ronga *
ABSTRACT
Human rights are the inherent rights associated with our person from our
very birth. Our being mere human ñ is the guarantee for their entitlement.
They are immune from abrogation by the act of the State unless reasonably
justified and in consonance with the principle of ëRule of Lawí in a credible
democratic set up. These rights have been declared as indivisible,
interrelated, interdependent and inalienable. However, owing to their
historical development ñ these rights are usually divided into three
generations. The first generation consists of Civil and Political rights
(ICCPR). Economic, Social and Cultural rights (ESCR) are included in
second generation of human rights. Emerging ëCollective/Group rightsí viz
right to clean environment, right to self-determination etc. have been
recognised to represent the third generation of human rights. This paper,
however, shall concern itself with the Second generation of Human rights
mentioned above i.e. ESCR and will limit itself mainly to the issue of their
ëenforceabilityí.
For the purpose of convenience, the essay is divided into four parts. First
section will introduce the subject matter of the essay and will briefly highlight
the Human rights and treaty protection of ESCR and set the premise for
further discussion. Second section will highlight certain ESCR and the
obligation, which treaties/conventions like ICESCR and European Social
Charter etc. put on the states in terms of realisation of these rights. Third
section will elaborate upon on the views expressed by various commentators
of eminence favouring or disfavouring their enforceability. This section
will also talk about various judgements ñ pronounced by the courts of
various national jurisdictions have tried to get over the enforceability or
non-enforceability conundrum of these rights and their practical
significance. Based on the knowledge accumulated and deduced from the
analysis of the previous sections ñ section fourth would attempt to briefly
sum up and conclude the discussion in this essay.

  • B.A LL.B (Kashmir University), LL.M. (Cardiff University, United Kingdom). The
    author is a practicing Civil and Human rights advocate and is currently a part-time
    faculty member at Vitasta School of Law and Humanities.

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The Second Generation of Human Rights: A Discussion About Their Enforceability

Introduction

Human rights are rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, colour, religion, language,
or any other status. We are all equally entitled to our human rights without
discrimination.1 Human rights arecommonly understood as inalienable fundamental
rights to which a person is inherently entitled simply because she or he is a human
being.2 These rights have been declared as universal, interrelated, interdependent
and indivisible.3 They are at the core of international law and international relations
and represent basic values common to all cultures, and must be respected by all
states.4 In fact the ÑUnited Nations Charter imposes obligations on member states
to achieve international co-operation in promoting and encouraging respect for human
rights.5 Human rights entail both rights and obligations. States assume obligations
and duties under international law to respect, to protect and to fulfil human rights.6
The obligation to respect means that states must refrain from interfering with or
curtailing the enjoyment of human rights. The obligation to protect requires states
to protect individuals and groups against human rights abuses. The obligation to
fulfil means that states must take positive action to facilitate the enjoyment of basic
human rights.7 At the individual level, while we are entitled our human rights, we
should also respect the human rights of others.8

Because of the historical reasons, human rights are mainly categorised and
divided into two separate covenants viz, the International Covenant on Civil and
Political Rights (ICCPR)9 and the International Covenant on Economic, Social and

1 United Nations Human Rights, ëOffice of the High Commission for Human Rightsí.
http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx (accessed on 2003/
2014).

2
Magdalena Sep˙lveda and Theo van Banning, ëHuman Rights Reference bookí,
University forPeace, Costa Rica, 2004. p. 3 http://www.hrea.org/erc/Library/display _
doc.php?url =http % 3A%2F%2www
hrc.upeace.org%2Ffiles%2Fhuman%2520rights%2520reference%2520handbook.pdf&external
=N (accessed on 20/03/2014).

3
World Conference on Human Rights, ëVienna Declaration and Programme of
Actioní,14-25June1993, p 5,U.N. DocA/CONF.157/23 (July12,1993).Available
at:http://www.ub.fu-berlin.de/service_neu/ubpubl/mitarbeiter/dbe
UDHR60Vienna_declaration.pdf (accessed on 20/03/2014).

4 Ibid Fn 2.

5
See Preamble of the UN Charter, together with Articles 1(3), 55 and 56. Available
at: http://treaties.un.org/doc/Publication/CTC/uncharter.pdf (accessed on 20/03/2014).

6 Ibid Fn 1.
7 Ibid.
8 Ibid.

9 InternationalCovenantonCivilandPoliticalRights,G.A.res.2200A(XXI),21U.N.
GAORSupp.(No.16)at52,U.N.Doc.A/6316(1966),999 U.N.T.S.171,entered into
force Mar. 23, 1976. [hereinafter ICCPR]. Available at: http://www1.umn.edu
humanrts/instree/b3ccpr.htm (accessed on 20/03/2014).

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Vitasta Law Journal, Vol.3 No.3, 2017

Cultural rights (ICESCR).10At the time of the Cold War, largely as a result of
political and ideological differences between the Soviet bloc on one side and the
United States on the other ñ the Covenants set out their respective rights in different
terms.11 Whereas in the ICCPR the rights are subjects of ìimmediate obligationî,
rights in ICESCR are to be achieved by the more intangible notion of ìprogressive
realizationî.12 The two categories of rights were also given divergent levels of
support for monitoring state compliance. The ICCPR was allocated the treaty-
based ìHuman Rights Committeeî comprised of an independent body of experts.
But no such mechanism was set up for the ICESCR until the formation of the
ìCommittee on Economic, Social and Cultural Rightsî (CESCR)13 in 1987. CESCR
is however obliged to operate under the direction of the politically constituted ìUnited
Nations Economic and Social Councilî (ECOSOC). Additionally, regional courts
such as the ìInter-American Court of Human Rightsî and the ìEuropean Court of
Human Rightsî have been set up to adjudicate disputes mainly over civil and political
rights. But, the CESCR remains to be the only mechanism available for socioeconomic
rights claims, and is able to deal with only minute fraction of cases,
meeting in any event with little political cooperation. In the context of Europe, in
addition to ICESCR treaty protection of economic and social rights14, the states
under the jurisdictions of ìCouncil of Europeî have to be also answerable to the
regional body in the shape of ìEuropean Committee of Social Rightsî established
under ìEuropean Social Charterî15 and does provide for the complaint process.16

10 International Covenant on Economic,Social and Cultural Rights, G.A. res. 2200A
(XXI), 21U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993U.N.T.S.3,
entered into force Jan. 3, 1976. [hereinafter ICESCR]. Available at:http:/www1.umn.edu/
humanrts/instreeb2esc.htm (accessed on 20/03/2014).

11 Philip Alston, ëEconomic and Social Rightsí, in Human Rights: An Agenda for
the Next Century (Louis Henkin & John
12 Ellen Wiles, ëAspirational Principles or Enforceable Rights? the Future for Socio-
Economic Rights in National Lawí, Am. U. Intíl L. Rev. 35 2006-2007 p. 38

13 General Comments, ëCommittee on Economic, Social and Cultural Rightsí.
Available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm (accessed on
20/03/2014).

14 In this essay economic, social and cultural rights (ESCR) have been variously used
as economic and social rights, and social rights.

15 The original version of Charter was adopted in 1961 and subsequently ëamended
and updatedí through 1988 protocol and has been renew in 1996 revision. See UN
Treaty Series, Vol. 529, p. 89; European Treaty series no. 35 [cited in Khaliq, U. and
Churcill, R. (2008) chapter 21: ëThe European Committee on Social Rightsíin
Langford M, Social Rights Jurisprudence: Emerging Trends in International and
ComparativeLaw, NewYork:Cambridge UniversityPress,(2008) p.21].Also See

ëEuropean Treaty series no. 163í. cited at the same source.

16 Council of Europe, European Social Charter (revised), ETS no. 163. Part I.
Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm (accessed on
20/03/2014).

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The Second Generation of Human Rights: A Discussion About Their Enforceability

Other regional treaties such as the American Convention on Human Rights 1969,17
the African Charter of Human Rights and Peoples Rights 198118 also provide for
complaint system, but contain limited socio-economic rights.

The concept of ESCR has long generated controversy among philosophers
and commentators. From a legal perspective, however, this controversy should have
been laid to rest by the adoption of the ICESCR by the United Nations General
Assembly and the formal acceptance of the ensuing treaty obligations. In spite of
this, the debate continues to bepolarized even today as it ever was in the days when
the international community had yet to recognize formally the legitimacy of ECSR.19

The position of socio-economic rights within national jurisdictions has tended
to reflect these attitudes of negativity or ambivalence about enforcement on the
international level, which persist despite the United Nation s efforts to realign
approaches to the two covenants.20Although, the mood of legal scholarship is
changing on the matter of socio-economic rights, commentators still continue to
contest the status of these rights, as rights, in any juridical sense. They remain
skeptical about the enforceability of socio-economic rights put forward a range of
reasons for their views, spanning from points of principle, concerning the need for
and Ñlegitimacy of constitutionalization and Ñjudicial enforcement , to points of
Ñpractice , relating to the Ñinstitutional competence of the judiciary in this area.21

This essay will explore some ESCR and protections accorded to the people
of states signatory to ICESCR and other regional treaties, the obligations put on
these states by virtue of this. The essay will also talk about the issue of enforceability
of these rights in practical sense of the terms by taking the example of few states.

17 Organization of American States, American Convention on Human Rights, ìPact
of San Joseî,Costa Rica, 22 November 1969, available at: http://www.refworld.org
docid/3ae6b36510.html (accessed on 20/03/2014).

18 Organization of African Unity, African Charteron Human and PeoplesíRights
(ìBanjulCharterî), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982),available at:
http://www.refworld.org/docid/3ae6b3630.html (accessed on 20/03/2014). 4

19 Philip Alston and Gerard Quinn, ëThe Nature and Scope of States PartiesíObligations
under the International Covenant on Economic, Social and Cultural Rightsí, Human
Rights Quarterly, Vol. 9, No. 2 (May, 1987), pp. 156-229

20 See ECOSOC, Comm. on Econ., Soc. and Cultural Rts., Substantive issues Arising
in theImplementation of the International Covenant on Economic, Social and
Cultural Rights: U.N.Doc. E/C. 12/2000/13 (2000). Available at: http://www.unhchr.ch/
tbs/doc.nsf/0/6b748989d76d2bb8c125699700500e17/$FILE/G0044704.pdf (accessed on
20/03/2014).

21 See Craig Scott & Patrick Macklem, ëConstitutional Ropes of Sand or
JusticiableGuarantees? Social Rights in a New South African Constitutioní,
University of Pennsylvania Law Review, Vol. 141, No. 1 (Nov., 1992) p. 15

117


118
Vitasta Law Journal, Vol.3 No.3, 2017
Protection of Economic, Social and Cultural rights under ICESCR and
other International treaties and the consequent state obligations
The rationale of the whole initiative of human rights is to ensure the protection
of human rights even in countries where they are not provided for as fundamental
constitutional rights precisely in order to safeguard them from the contingencies of
the national political and administrative processes.22 As global experience had
repeatedly shown that states cannot be trusted to respect and protect the inherent
human dignity of all those who are subject to their jurisdiction, so the United Nations
has sought to establish a set of universal standards by adopting Universal Declaration
of Human Rights (UNDHR).23
ESCR are a broad category of human rights guaranteed in the ICESCR
and other legally binding International and regional human rights treaties. Nearly
every country in the world isparty to a legally binding treaty that guarantees these
rights.24 Some of the rights included are:25
.Rights at work, particularly just and fair conditions of employment, protection
against forced or compulsory labour and the right to form and join trade unions;26
.the right to education, including ensuring that primary education is free and
compulsory, that education is sufficiently available, accessible, acceptable and
adapted to the individual;27
.the right to the highest attainable standard of physical and mental health,
including the right to healthy living conditions and available, accessible, acceptable
and quality health services;28
22 Abdullahi A. An-Naíim, ëTo Affirm the Full Human Rights Standing of Economic,Social
& Cultural Rightsí, in Economic, Social and Cultural Rights in Practice,INTERIGHTS
UK, (2004) p. 8
23 According to the preamble of the UNDHR, these standards are supposed to be,a common
standard of achievement of all peoples and all nationsí.UNDHR is availablat: http://
www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf (accessed on 20/03/
2014). 5
24 United Nations Treaty Collection Database, International Covenant on Economic
Social and Cultural Rights 1966. Available at: http://treaties.un.org/Pages View
Details.aspx?mtdsg_no=IV-3&chapter=4&lang=en (accessed on 20/03/2014). At present
there are 70 Signatories and 160 Parties to this International Covenant.
25 Amnesty International, Economic, Social and Cultural Rights, Available at: http://
www.amnesty.org/en/economic-social-and-cultural-rights (accessed on 20/03/2014).
26 UN General Assembly, International Covenant on Economic, Social and Cultural
Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, Article and Article 7,
p. 3 Available at: http://www.refworld.org/docid/3ae6b36c0.html (accessed on 20/03 2014).
27 Ibid, Article 13 and Article 14
28 Ibid, Article 12

119
.the right to adequate housing, including security of tenure, protection from
forced eviction and access to affordable, habitable, well located and culturally
adequate housing;29
.the right to food, including the right to freedom from hunger and access at all
times to adequate nutritious food or the means to obtain it;30
The obligations of states in relation to ESCR are expressed differently
from treaty to treaty. ICESCR, in its preamble recognizes that ÑÖthe ideal of free
human beings enjoying freedom from fear and want can only be achieved if conditions
are created whereby everyone may enjoy his economic, social and cultural rightsÖ
.31 Article 2 (1) of this ICESCR requires states Ñto take steps to the Ñmaximum of
their available resources to achieve progressively the full realization of ESCR .32
The Covenant also requires states to guarantee the Ñenjoyment of ESCR s without
discrimination 33 and to Ñensure the equal right of men and women to the enjoyment
of these rights .34 Similarly, regional conventions like European Social
Charter35obliges Council of Europe member states to aim their policies Ñto be pursued
by all appropriate means both national and international in character, the attainment
of conditions in which the following rights and principles may be effectively realised
. That includes, the right to protection against poverty and social exclusion,36 right to
housing,37 right to dignity at work,38 right to social security,39 social and medical
assistance40 etc. Likewise other regional conventions, for example, American
Convention on Human rights 1969, also protects some of these rights albeit using
different phraseology.41
Malcolm Longford and Jeff A. King in their article42 remark that Ñthe most
persistent myth about the ICESCR is that it does not give rise to the obligation to act
29 Ibid Article 11.
30 Ibid.
31 Ibid Fn 24.
32 Ibid.
33 Ibid, Article 2 (2).
34 Ibid Article 3. 6
35 Council of Europe, European Social Charter (revised), ETS no. 163. Part I. Available
at: http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm (accessed on 20/02014).
36 Ibid Article 30
37 Ibid Article 31
38 Ibid Article 26
39 Ibid Article 12
40 Ibid Article 13
41 Organization of American States, American Convention on Human Rights, ìPact of
San Joseî, Costa Rica, 22 November 1969, available at: http:www.refworld.org/docid
3ae6b36510.html (accessed on 20/03/2014).
42 Malcolm Longford and Jeff A. King, ëCommittee on Economic, Social and Cultural
Rights Past, Present and Futureí, in Social Rights Jurisprudence Emerging trends in
International and Comparative law, CUP 2008, pp. 486-487
The Second Generation of Human Rights: A Discussion About Their Enforceability

Vitasta Law Journal, Vol.3 No.3, 2017

in a particular way immediately . They assert that this persistence is likely because
of the formulation of Article 2 (1), which requires the obligation to realise the rights
progressively, to the maximum of available resources.43 However, the Committee
on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 3,
1990 entitled ìthe Nature of State parties Obligationsî44 clears some of these
doubts. It says, ìwhile the Covenant provides for progressive realization and
acknowledges the constraints due to the limits of available resources, it also imposes
various obligations which are of immediate effect….î45 It further goes on to say
that the ìfact that realization over time, or in other words progressively, is foreseen
under the Covenant should not be misinterpreted as depriving the obligation of all
meaningful content. It is on the one hand a necessary flexibility device, reflecting
the realities of the real world and the difficulties involved for any country in ensuring
full realization of ESCR. On the other hand, the phrase must be read in the light of
the overall objective, indeed the raison d Ítre, of the Covenant which is to establish
clear obligations for states parties in respect of the full realization of the rights in
question. It thus imposes an obligation to moveas Ñexpeditiously and Ñeffectively
as possibletowards that goal.î46 Tryingina waytodispeltheir owndoubts, Longford
and King maintain that Ñalthough the State is required to realise the full entitlement
of these rights either over time or right away but in neither case is it entitled to not
to act at all .47 However, they seem to be a little apprehensive about state s willingness
towards fulfilling these rights as they assert that the danger they see in this apparent
dichotomy is that Ñonce one manages to classify something as a progressive rather
than immediate obligation, it might lead a State to believe that it does not need to act
in any specific way immediately .48

Are obligations under economic, social and cultural treaties like ICESCR
and other International standards legally enforceable and/or of any practical
value at all? ñ A discussion

As per the principles of International law depending on if a state adheres to
the legal tradition of Monism or Dualism ñ the international law takes different

43 Ibid.

44 Committeeon Economic,Socialand Cultural Rights,General Comment 3,The Nature of
States partiesí obligations (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86
(1991), reprinted in Compilation of General Comments and General Recommendations
AdoptedbyHuman RightsTreatyBodies,U.N. Doc.HRI/GEN/1/Rev.6at14(2003).Available
at: http:www1.umn.edu/ humanrts/gencomm/epcomm3.htm(accessed on 20/03/2014).

45 Ibid Para 1. 7

46 Ibid Para 9.

47 Ibid Fn 42 above.

48 Ibid.

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The Second Generation of Human Rights: A Discussion About Their Enforceability

effects in the domestic jurisdictions.49 If a state follows the Monistic legal tradition
then the International obligations undertaken by it, for example, by way of a treaty
or customary international law, automatically becomes the part of its domestic legal
system.50 In other words the act of ratifying an international treaty immediately
incorporates that international law into national law. This results into the situation
where International law can be directly invoked by its citizens, just as if it were
national law and therefore can be directly enforced by a national judge. From the
purpose of human rights, this kind of system has some obvious advantages. For
example, let s say if a state, Holland, for instance, whose legal tradition follows
Monistic principle, has accepted ICESCR. But, if some of its national laws contradict
with obligations that come with it, any Dutch citizen whose right has been infringed
by the state, can invoke the relevant provisions of ICESCR in front of a national
judge and plead for the enforcement of obligation undertaken by his state under this
treaty and might very well succeed to struck off the impugned domestic law. The
judge must apply ICESCR even if it is not in conformity with Dutch domestic law.51

He or she does not need to wait for national law to first incorporate ICESCR
in its domestic law. As opposite to this, in a Dualistic system, the International
obligation undertaken does not directly enter into the domestic legal system. In this
legal system, a state that has accepted International obligation ñ for instance, by
way of treaty ratification ñ has to first formally incorporate it into the domestic law
through the normal legislative mechanism to allow its citizens to claim the rights, if
any, contained in such treaty. This system is followed in the states like United
Kingdom, Australia etc. whereîAct of Parliamentî is needed in order to give an
effect to its International obligations.52 So, the enforcement of the rights under the
treaties like ICESCR might be slightly more complicated in the states with dualistic
legal tradition.

The above distinction of the states in terms of their legal system becomes
essential for the purpose of this essay in view of enforcement or non-enforcement
of rights contained in the International treaties dealing with ESCR which being the
very question of this discussion.

Over the years there has been quite a debate about the legal validity of
ESCR. Although the two covenants that comprise the International Bill of Rights ñ
ICCPR and ICESCR ñ are equally authoritative legal instruments. Yet this theoretical

49 Peter Malanczuk, Akekurstís Modern Introduction to International Law, Routledge.

2002, p. 63
50 Ibid.
51 G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon

Press, Oxford, 1992, p. 17
52 Juristic, Is the Dualist-Monist controversy in International Law simply a fiction?

Available at: http://mezinarodni.juristic.cz/51001/clanek/mpv1.html (accessed -on 20/

03/2014). 8 t

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equality of rights categories goes largely unrecognized in practice. The truth is
socio-economic rights when viewed from the liberal perspective does pose a
significant Ñconceptual challenge in that the rights are deemed Ñindividual entitlements
that are hostile to and supersede the common good, therefore mandating a limited-
government intervention.53Some critics argue that they are not Ñauthentic rights in
the normative sense, but mere Ñmoral aspirations .54 Others rank them below ìrealî
civil and political rights, which in the liberal imagination are presumed to pre-exist
organized society.55

Scholars like Sunstein have some reservations about status of social and
economic rights as legally valid claims.56 He argues that socio-economic rights
should be guaranteed by a decent society instead of being entrenched in a Constitution.
He asserts, making them into law could serious damage the image of the Constitution
as the supreme law.57 This is largely because of his belief that these rights cannot
be enforced in practice.58 Finally, some scholars who do not reject social rights on
philosophical grounds nevertheless contend that they are non-justiciable.59 However,
despite these theoretical obstacles, new paradigms of judicial enforcement of ESCR
are emerging in liberal states, challenging many previous assumptions.60 There are
the scholars like Scheinin, who contends that ìthe problem relating to the legal
nature of social and economic rights does not relate to their validity but rather to
their applicabilityî.61 Domestic justiciability and the domestic application of
ICESCR and other international standards that recognize ESCR, remain two
significant issues in debates about the core concepts of these rights.62 They relate
closely to the right to effective remedies for persons alleging violations of ESCR.

Regarding the procedure of actual ìlegal enforcementî of ESCR obligation
undertaken either under ICESCR and other International treaties, could include

53 Jeanne M Woods, ëEmerging Paradigms of Protection for ìSecond-Generationî
Human Rightsí,6 Loy. J. Pub. Int. L. 103 2004-2005 p.1

54 See, e.g., Maurice Cranston, Human Rights, Real and Supposed, in Political Theory
and the Rights of Man (D.D. Raphael ed. Macmillan (1967) pp. 47-53

55 For example, See Jeanne M. Woods, ëJusticiable Social Rights as a Critique of the
Liberal Paradigmí, 38 TEX. INTíL L.J. (2003) pp. 763-79

56 C.R. Sunstein, ëAgainst Positive Rightsí, 2 East European Constitutional Review (1993)

p. 35
57 Ibid pp. 35-36
58 Ibid
59 Jeanne M. Woods and Hope Lewis, ëHuman rights and the Global marketplace:
Economic, Social and Cultural Dimensionsí, (2005). pp. 154-75

60 Ibid pp 653-930

61 M. Scheinin, ëEconomic and Social Rights as Legal Rightsí, in A. Eide, C.
Krause and A. Rosas, eds, Economic, Social and Cultural Rights (2nd edn,
Martinus Nijhoff Publishers, The Hague, 2001), pp. 29-54 9

62 Matthew C.R. Craven, ëthe domestic application of the International Covenant
on Economic,Social and Cultural Rightsí, Netherlands International Law Review,
vol. XL, issue 3 (1993), pp. 367-404.

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The Second Generation of Human Rights: A Discussion About Their Enforceability

action by many institutions vested with the power to enforce them, but for the
purposes of this essay I am confining it to mean ways in which the Judiciary/Courts
can contribute to the vindication of these rights.

Although, the ÑCommittee on Economic, Social and Cultural Rights notes
in paragraph 9 of General Comment No. 9 (titled ìDomestic application of the
Covenantî) noted that a Covenant right cannot be made fully effective without
some role for the judiciary, judicial remedies are necessary.63 However, there are
many issues that have been raised regarding the judicial enforcement of ESCR.

It has been claimed that judicial enforcement is neither appropriate nor
feasible for ESCR mainly because of the following reasons: First, by their nature of
being open-ended and indeterminate, social and economic rights suffer from
conceptual ambiguity and imprecision.64 Secondly, it is generally argued that civil
and political rights are negative in nature, so require the state to refrain from acting,
whereas social and economic rights are positive and require the state to act. The
point is made that the former type of right is more readily enforceable as opposed to
the latter.65 Thirdly, the argument is made that judges are not trained to adjudicate
social rights, that they are not equipped to assess the situation on the ground, and
that accordingly they are not in a position to determine whether there has been a
breach of social and economic rights.66 Fourthly, as the resources are inevitably
limited and since some social and economic rights can be positive in nature, it has
been suggested that budgetary constraint can make their enforcement impossible.67
Fifthly, the opponents to judicial enforcement of social and economic rights argue
that such a course of action will breach the separation of powers and encroaching

63 Economic and Social Council, Committee on Economic, Social and Cultural rights,
Substantive issues Arising in the implementation of the International Covenant on
economic, social and cultural rights, the domestic application of the Covenant,
Nineteenth session, Geneva 1998. Available at: http://daccess-dds-ny.un.org/doc/
UNDOC/GEN/G98/148/36/PDF/G9814836.pdf?OpenElement (accessed on 20/03/2014).

64 See Michael J. Dennis & David P. Stewart, ëJusticiability of Economic, Social, and
Cultural Rights: Should There Be an International Complaints Mechanism to
Adjudicate the Rights to Food, Water, Housing, and Health? 98 AM. J. INTíL L. (2004)

p. 462,464,473 (suggesting that many States ignore socioeconomic rights because they
are ìimprecise [and] unenforceableî).
65 Ellen Wiles, ëAspirational principles or Enforceable rights? The future for socio
economic rights in National lawí, Am. U. Intíl L. Rev. 35 2006-2007, p. 45
66 C.R. Sunstein, ëAgainst Positive Rightsí, 2 East European Constitutional Review (1993),
pp. 35-37 (observes that the courts do not possess the necessary tools to adjudicate
on matters pertaining to government policy and accordingly cannot enforce many
positive rights).

67 M.Tushnet, ëSocial WelfareRights and the Forms ofJudicial Reviewí, 82 Texas Law
Review 1895, (2004) p. 4. Also, available at: http://politics.as.nyu.edu/docs/IO/ 4742/
tushnet.pdf (accessed on 20/03/2014). 10

123


Vitasta Law Journal, Vol.3 No.3, 2017

on legislative and executive territory.68 Sixthly, it has been argued that it might
result in judicial dictatorship and that democracy would be under serious threat if
the judiciary held Ñultimate power over the purse in addition to being the protectors
of the Constitution.69 Seventhly, the argument is made that judges are unaccountable
and accordingly they do not possess the legitimacy to enforce socio-economic rights.70
And finally, it has been observed that socio-economic rights should not be adjudicated
by the courts because these decisions are ìpolycentricî (having unintended
consequences on other spheres of politico-administrative policies). However,
notwithstanding these Ñapprehensions and Ñsuspicions regarding the judicial
enforcement of ESCR, they have been already allayed Ñfairly and Ñsuccinctly and
to reproduce the same here might go beyond the limited scope of this essay.71

In order to appreciate whether (or not) the socio-economic provisions
contained in the treaties like ICESCR are actually legally enforced in the domestic
jurisdictions of the state, the essay now intends to analyse the Ñapproach followed
and Ñjurisprudence developed (through Case law) by two most important states (in
the discourse of ESCR) ñ India and South Africa ñ along with the brief criticism of
the judicial approach.

INDIA: THE DIRECTIVE PRINCIPLESAPPROACH

The directive principles approach, pioneered in India, has produced a plethora
of jurisprudence on economic and social rights.72 In Indian Constitution, rights are
bifurcated in a chapter on ìFundamental Rightsî and the ìDirective principles of
State policyî.73 The directive principles lay dormant until the 1980s, when a group
of judges on the Indian Supreme Court declared that the judiciary had a responsibility
to address the vast poverty and misery in India.74 Since the early 1980s, Indian
courts have adjudicated socio-economic rights through creative interpretation of

68 Ellen Wiles, ëAspirational principles or Enforceable rights? The future for socio
economic rightsin National lawí, Am. U. Intíl L. Rev. 35 2006-2007 p. 42
69 Navish Jheelan, ëThe Enforceability of Socio- economic Rightsí, 2 E.H.R.L.R.2007,p.

154
70 Ibid, p.156
71 See, for example, Ellen Wiles, ëAspirational principles or Enforceable rights? The

future for socio-economic rights in National lawí, Am. U. Intíl L. Rev. 35 2006-2007.
Also See, Navish Jheelan, ëThe Enforceability of Socio- economic Rightsí, 2 E.H.R.L.R.
2007, pp. 146-157.

72 Jeanne M. Woods and Hope Lewis, ëHuman rights and the Global marketplace:
Economic, Social and Cultural Dimensionsí, (2005). pp 653-713.

73 Ministry of Law and Justice, The Constitution of India, Part III, Fundamental Rights
(actually the classical Civil and Political Rights), Part IV Directive Principle of State
Policy (Economic, Social and Cultural Rights). Available at: http://lawmin.nic.in/coi/
coiason29july08.pdf (accessed on 20/03/2014).

74
See Vijayashri Sripati, ëHuman Rights in India – Fifty Years after Independenceí,26
DENV.J.INTíLL.&POLíY93 (1997)p.107

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The Second Generation of Human Rights: A Discussion About Their Enforceability

the Indian Bill of Rights, read in conjunction with nonjusticiable directive principles
of state policy.75 In Peopleís Union for Democratic Rights v. Union of India,76 a
petition challenging the private sector employment policies in connection with the
Asian Games, to which India was host, launched the movement known as Social
Action Litigation (SAL)/Public Interest Litigation (PIL).77 In this case, worker s
advocacy group addressed a letter to the Supreme Court (S.C) on behalf of
construction workers who were being paid less than the minimum wage.78 The S.C
admitted the letter as a complaint, and ruled that the group had standing to bring the
petition on behalf of the workers.79Invoking the directive principles (ESCR), the
Court determined that the government had failed in its Ñconstitutional duty to protect
the workers and to ensure that previously enacted statutes establishing a minimum
wage were enforced.80

Similarly in Bandhua Mukti Morcha v. Union of India,81 a suit was
initiated on behalf of workers in the stone quarries near the city of Delhi, through a
letter alleging that the stone-crushers were bonded labourers forced to work under
extreme and intolerable conditions. The letter cited a lack of housing, clothing,
health care, and clean water, as well as exposure to heavy air pollution generated
by stone crushing machines. Many of the workers had become ill or died from
tuberculosis and other diseases, or had been killed or seriously injured in blasting
accidents. The victims received no medical care, nor were they or their families
provided any compensation. The S.C commissioned a group of experts to Ñinvestigate
the living and working conditions that were the subject of the complaint. The
investigators noted that many of the workers were not allowed to leave the stone
quarries, had no blankets or mats to sleep on, often had to pay for explosives with
their own money, and were given grossly inadequate remuneration. Concluding that
the workers were Ñbonded labourers within the meaning of the Bonded Labour
Act; the Court held that while the directive principles (ESCR) were not directly
enforceable by the judiciary, they provided authority to order the State to enforce
the legislation already enacted. It further ordered the State to educate the workers
about their social and labour rights so that they did not remain vulnerable to
exploitation.82

75
Jeanne M Woods, ëEmerging Paradigms of Protection for ìSecond-Generationî
Human Rightsí, 6 Loy. J. Pub. Int. L. 103 2004-2005 pp. 104-105 11

76 Peopleís Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473.
Available at: http://indiankanoon.org/doc/496663/ (accessed on 20/03/2014).
77 P.N. Bhagwati & C.J. Dias, ëThe Judiciary in India: A Hunger and Thirst for

Justiceí, 5 NUJS L.Rev. 171 (2012) p. 174
78 Ibid p. 1474
79 Ibid
80 Ibid p. 1475
81 Bandhua Mukti Morcha v. Union of India [1984] 3 SCC 161. Available at: http://

www.indiankanoon.org/doc/595099/ (accessed on 20/03/2014).
82 Ibid p. 137

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Vitasta Law Journal, Vol.3 No.3, 2017

The right to life under Article 21 of the Indian Constitution has been
interpreted broadly by the courts to encompass a variety of economic, social, and
cultural interests. These interests include not only the right to a safe work
environment,83 but alsotheright toearnalivelihood,84 theright tofreelegalservices,85
and the right of indigenous people to be compensated for land taken by the
government.86 The right to life also includes the right to receive immediate medical
attention for the treatment of serious injuries.87

Despite this apparently Ñactivist role of Indian judiciary, it has come under
some serious criticism as well. The limits of judicial intervention are evident in the
Courtís response to Ñneo-liberal development schemes. In October 2000, the Indian
Supreme Court authorized the governments of Gujarat and Madhya Pradesh to
resume construction of the Sardar. Sarovar dam, a controversial project originally
financed by the World Bank. The dam has displaced and dispossessed thousands of
poor rural farmers and indigenous Adivasis.88 While directing the states to provide
compensation to those displaced, the Court established no mechanism to monitor
the implementation of its decision. At present there are thousands of Indiaís most
vulnerable people literally drowned out of their homes every monsoon season.89
Where government policies scapegoat the poor in the name of expansive social
goals such as development of ìgreen spaces,î the Courts has been criticised for
often abandoning their activist pretensions, invoking the principle of judicial deference
to the political branches.90

SOUTHAFRICA: THE BILLOF RIGHTS APPROACH

After emerging from apartheid the new democratic South Africa included
constitutionally entrenched and judicially enforceable social rights among the
fundamental rights guaranteed to its citizens. The 1996 South African Constitution

83 Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 1991 (1) SCC 598 12 Li
84 Olga Tellis v. Bombay Municipal Corp., A.I.R. 1986 S.C. 180.
85 Khatri v. State of Bihar, A.I.R. 1981 S.C. 928
86 Karajan Jalasay Y.A.S.A.S. Samity v. State of Gujarat, A.I.R. 1987 S.C. 532
87 Paschim Banga Khet Mazdoor Samity v. State of West Bengal, A.I.R. 1996 S.C. 2426
88 See Narmada Bachao Andolan v. Union of India, 10 S.C.C. (2000) 664. Available

at: http://www.narmada.org/sardar-sarovar/sc.ruling/index.html#judgements.
(accessed on 20/03/2014).

89 Ibid pp. 747-58. For information about resistance to the dam project, see the web
site of Friends of River Normanda. Available at: http://www.narmada.org.
(accessed on 20/03/2014).

90 See, e.g., M.C. Mehta v. Union of India, A.I.R. (1996) S.C.C. 2231 (ordering polluting
plants in Delhi to relocate).

126


The Second Generation of Human Rights: A Discussion About Their Enforceability

does not structurally relegate ESCR to a lower status; these rights are, however,
subject to qualifications based on the availability of public resources.91

The first social rights case under the new Constitution, Soobramoney v.
Minister of Health, Kwa-Zulu-Natal,92 involved a forty-one year old unemployed
diabetic with chronic renal failure, necessitating regular kidney dialysis.93 Because
Mr. Soobramoney suffered from a combination of serious ailments rendering his
condition irreversible, the treatment was calculated to prolong his life but would not
cure him.94 Due to an insufficient number of dialysis machines in the public health
sector, however, the hospital rationed their use, limiting them to patients who were
eligible for a kidney transplant,95 a criterion that excluded Mr. Soobramoney. The
petitioner invoked several provisions of the South African Constitution, claiming
violations of his rights to life,96 health, 97 and emergency medical treatment.98

The Court affirmed the integral connection to human dignity, freedom, and
equality, without which the aspirations of the new constitutional dispensation would
ìhave a hollow ring.î99 Noting, however, that in Section 27(2) the stateís duty with
regard to health care was circumscribed by the ìavailable resources,î the Court
read additional limiting language into the provision, restating the obligation of the
state as ìdependent upon the resources available for such purposes.î100 The Court
cautioned that it would ìbe slow to interfere with rational decisions taken in good
faith by the political organs and medical authorities whose responsibility it is to deal
with such matters.î101

An example of positive application of socio-economic rights is the Republic
of S. Afr. v Grootboom & Others case, in which a group of applicants, comprised
of 390 adults and 510 children, was evicted from a squatter camp in which they
had been living in extremely poor conditions.102 Many had applied for housing, but
had been on a waiting list for as long as seven years.103The applicants launched an
urgent application for adequate and sufficient basic temporary shelter for the group
under Section 26 of the Constitution, which provides that everyone has the right to

91
See, e.g., S. AFR. CONST., Section 27(2) (right to Health care, food, water and social
security). Available at: http://www.info.gov.za/documents/constitution/1996/a108-96.pdf
(accessed on 20/03/2014).

92 Soobramoney v. Minister of Health, Kwa-Zulu-Natal 1997 (12) BCLR 1696

93 Ibid p. 1698. 13 c

94 Ibid.

95 Ibid p. 1699.

96 S. AFR. CONST., Section 11 (Life: Everyone has the right to life).

97 S. AFR. CONST., Section 27(2) (Right to Health care, food, water and social security)

98 Ibid.
99 Soobramoney v. Minister of Health, Kwa-Zulu-Natal 1997 (12) BCLR p. 1700
100 Ibid 1701
101 Ibid 1706
102Govt. of the Republic of S. Afr. v Grootboom & Others 2001 (1) SA46 (CC) p. 53
103 Ibid p. 55

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Vitasta Law Journal, Vol.3 No.3, 2017

have access to adequate housing.104 The respondents were ordered by the Court to
make a local building available, free of charge, as temporary accommodation pending
a further hearing.105 Citing the analysis of the Committee on Economic, Social and
Cultural Rights which declared that the requirement of ìprogressive realizationî of
the right to housing ìimposes an obligation to move as expeditiously and effectively
as possible towards that goal,î106 the Court found that the governmentís program
lacked the requisite momentum.

Similarly, Minister of Health v. Treatment Action Campaign107 case
involved a challenge, by a range of organizations, to the governmentís refusal to
provide Nevirapine to HIV positive pregnant women at all state clinics and
hospitals.108 The South African Constitutional Court revisited the issue of the scope
of the right to health in the context of the tragic AIDS epidemic. In preliminary
comments, the Court sought to clarify its elaboration of the concept of ìminimum
coreî in Grootboom, explaining that this standard does not create an individual
entitlement to the satisfaction of minimum core needs, but does require government
programs to address the needs of the most vulnerable in society, ì[t]hose whose
needs are the most urgent and whose ability to enjoy all rights therefore is most in
perilÖ.îInlight of thehugedomestic andinternationaloutcryover theSouthAfrican
governmentís mishandlingof theAIDS crisis, theCourt was apparently unwillingto
presume the ìgood faithî of the authorities, as it had in Soobramoney. The court
found that the governmentís refusal to extend the provision of Nevirapine was
unconstitutional.109

Despite the fact that the Court declared the governmentís policies
unconstitutional in both Grootboom and Treatment Action Campaign, the Courtís
jurisprudence has been much criticized.110 Most scholars agree with the outcome in
each case. Instead, criticism has been levelled at what is perceived as the Courtís

104 Ibid p. 57
105 Ibid 14

106 Quoting Report of the Committee on Economic, Social and Cultural Rights, General
Comment 3, The nature of States partiesí obligations (Fifth session, 1990), U.N. Doc.E/
1991/23, annex III at 86 (1991), reprinted in Compilation of General Comments an
General Recommendations Adopted by Human RightsTreaty Bodies, U.N. Doc. HRI/
GEN/1/Rev.6 at 14 (2003) para 9. Available at:http://www1.umn.edu/humanrts/
gencomm/epcomm3.htm (accessed on 20/03/2014).

107 Minister ofHealth &OthersvTreatmentAction Campaign &Others 2002 (5)SA721

(CC) p. 728.
108 Nevirapine is a fast-acting and potent antiretroviral drugî routinelyused totreat HIV/
AIDS that was approved in 2001 by the World Health Organization for use in the
prevention of mother-to-child transmission HIV/AIDS at birth.

109
Ibid f n 97, p. 750. (reasoning that the limits on Nevirapine breached ìthe Stateís
obligations under section 27(2) read with section 27(1) (a) of the Constitutionî).

110
See, e.g., David Bilchitz, ëGiving Socio-Economic Rights Teeth: The Minimum Core
and Its Importanceí, 119 SALJ 484, (2002) p. 484; Marius Pieterse, Eating Socio
economic Rights: ëThe Usefulness of Rights Talk in Alleviating Social Hardship
Revisitedí, 29 Hum. Rts. Q. 796 2007 p. 810; Also see John Dugard,Twenty Years of

128


The Second Generation of Human Rights: A Discussion About Their Enforceability

Ñundue and Ñexcessive deference to the legislature and executive.111 This deference
is thought to manifest itself in two forms. The first is the criteria used by the court
to decide whether executive action is unconstitutional.112 The second pertains to
the form of relief granted by the court when a particular action is declared
unconstitutional.113 As far as the first criticism is concerned, which is one of
substance and is the more difficult to address, critics complain that the court will
adjudge a particular policy or program constitutional if it is Ñreasonable and made in
Ñgood faith .114 Following Grootboom and Treatment Action Campaign, it is clear
that the essence of the judicial inquiry in most cases will be whether the particular
policy or program is reasonable. The Court has thus not been willing to declare, in
respect to any of the cases brought before it, that the individual applicants have an
Ñimmediate right to obtain the socio-economic good in question. In focusing on the
coherence, rationality, inclusiveness, and flexibility of legislative or policy measures,
instead of on the Ñalleviation of the concrete consequences of socio-economic
hardship, the Constitutional Court appears to have rendered the material needs of
socio-economic rightsí subjects extraneous to the inquiry into constitutional
compliance with socio-economic obligations.115

The second criticism levelled at the Court is that it has not been willing to
make orders that give it any kind of Ñmonitoring or supervisory role over the
implementation of the order . In effect, the Court trusts that the government will
abide by the order and formulate a policy that is reasonable, 116which of course as
we know doesn t always seem to happen.

Human Rights Scholarship and Ten Years of Democracyí, 20 SAJHR 345, (2004) p.

348

111
David Bilchitz, ëTowards a Reasonable Approach to the Minimum Core: Laying the
Foundations for Future Socio-economic Rights Jurisprudenceí, 19 SAJHR 1(2003)
pp. 23-24

112 Ibid p. 10

113 Ibid pp. 23-26

114 The court is hesitant to interfere with ìrational decisionsî made in ìgood faithî by
authorities with responsibility over the matter in question. See, Soobramoney v
Minister of Health, Kwazulu-Natal, 1998 (1) SA 765 (CC) p. 776. In Grootboom 2001 (1)
SA 46 (CC) pp. 68-9, the court would not interfere with the legislative and executive
branchesí authority over public housing programs, unless they adopted unreasonable
measures. Similarly, in Minister of Health & Others v Treatment Action Campaign &
Others 2002 (5) SA 721 (CC) p. 740, the court explained that the Constitution envisions
a ìrestrained and focusedî that court evaluates only the reasonableness of government
action.

115 David Bilchitz, ëGiving Socio-Economic Rights Teeth: The Minimum Core and
Its Importanceí,119 SALJ 484, (2002) p. 499

116 The court has declared executive action unconstitutional for being unreasonable,and
has ordered the executive to amend its policies to the extent that they are
unreasonable. It has not, however, insisted that the executive report back to thecourt
with its amended program, nor has it insisted that the actual litigants be amongst the

129


Vitasta Law Journal, Vol.3 No.3, 2017

Conclusion

Taking the lead from Philip Alston and Gerard Quinn,117 in conclusion it can
be said that although the issue of enforceability from the discussion of legal paradigm
should have been laid to rest by the adoption of the ICESCR. However, as we have
witnessed above, the debate is yet far from being over. The main reason for these
somewhat looped debates about enforceability being mainly the state s relentless
contention about the lack of available resources even in the face of their manifold
spending in defense & arsenal industry. Moreover, liberal discourse mostly
popularised by the State s like U.S has also to a certain extent slowed down the
development of ESCR to come to the fruition118. No doubt, there can be some
areas in the ESCR milieu where many states would genuinely need more time in
order to progressively achieve the required standards. However, as noted by the
Malcolm Longford and Jeff A King119 that this shouldnít the states complacent for
not acting in any specific way immediately. Despite international guarantees of
these rights, across the world: 923 million people are suffering from chronic hunger,
over a billion people live in slums or informal settlements, over 100 million children
(more than half of whom are girls) do not have access even to primary education.120
In fact, I argue that the state should adopt some targeted and time bound programmes
to achieve, at least, these minimum universal standards of dignified life. The provision
of some form of food, education, health, work, housing etc. should be made available
by state for everyone without fail.

The obligations that states undertake under International treaties like
ICESCR can t be said to have been totally unenforceable and lacking practical
value as we have seen from some of the bold judgement of the highest Constitutional
courts, for example, in case of India and South Africa. The Courts in these states,

immediate beneficiaries of the improved program. See Treatment Action Campaign

2002 (5) SA at 763.

117 See Fn 11

118 See e.g. David Grant, ëHouse Republicans repeal Obamacare again. Why do they
keep doing it?íThe Christian Science Monitor, 16 May 2017. Available at: http://
www.csmonitor.com/USA/DC-Decoder/2017/0516/House-Republicans-repealObamacare-
again.-Why-do-they-keep-doing-it?nav=87-frontpage-entry NineItem
(accessed on 20/03/2014). 16

119 See Fn. 42

120 Amnesty International, Economic, Social and Cultural Rights, Available at: http:/
/www.amnesty.org/en/economic-social-and-cultural-rights (accessed on 20/03/2014).

130


The Second Generation of Human Rights: A Discussion About Their Enforceability

at least in some measure, do take these treaties into consideration while formulating
and pronouncing their decision on matters relating to ESCR. These treaties
undoubtedly have some persuasive effect on the states including on their judiciary.
Although, there remains some genuine concerns relating to the implementation as
well as the monitory mechanism that needs to be taken care of, if only Judiciary
has to be seen as the real guardian of constitution and protector of people s human
right. Although, the rights based discourse has been subjected to much criticism as
being deferential and defeating true social movements. But from my point of view,
it is a viable tool in hands of those who otherwise have to remain at the entire
discretion of unaccountable state apparatus.

And finally, the binding obligation of provisions under ICESCR can be
supposed to further enhance in strength and be more stringent in the wake of ìOptional
Protocol to the ICESCRî coming in force on May 5, 2017.121

121 UN News Centre, UN Rights Chief Hails New Treaty Protecting
Economic,Social,Cultural Rights, 6May,2017.Availableat:http://www.un.org/apps
newsstory.asp?NewsID=44835&Cr=human+rights&Cr1#.UZU4qLW1HeL(accessed
on 18/05/2017). (The Protocol took effect three months after Uruguay became the
required tenth country to ratifyit. According to the Protocol, citizens of signatory
nations will be permitted to appeal to theUNís Committee on Economic, Social and
Cultural Rightson specificrights-related casesafter theyhaveexhausted allattempts
to find justice in their respective countries)

131


The Police State or Welfare State
Jammu and Kashmir State Police Bill 2017

Altaf Ahmad*

Introduction

Previously a society dominated by a ruling class needs a coercive instrument
to maintain this classís control over basic resources and over a labor force necessary
to produce the surplus product to support and sustain its class .Today the police
serve the function in contemporary, complex societies, modern policing contains
the contradictory demands of the police function in kinship-based societies and the
police function in state society. The development of the police function parallels the
development of the state. The police function existing within a kinship-based society,
as a product of the whole society, is transformed into a police function that
predominantly represents the interests of the dominant class in a class-dominated
society while at the same time purporting and appearing to represent the entire
society. We attempt to reconstruct the means by which this transformation occurs.
Because we consider the kinds of changes in community organization that makes a
police deemed necessary, our analysis has important implications for an understanding
of contemporary problems in police-community relations and following the
constitutional guidelines to make the state a welfare one. In modern policing the
police offered a service to the people who help them in bad times of life and upholding
the criminal jurisprudence and the state policing legislation to achieve greater public
service and accountability. Police is the important agency in criminal justice system
and occupy a strategic position

In 2006 the Supreme Court ordered reform must take place in a popular
case known as Prakash Singh v. Union of India.1.The states and union territories
were asked to comply with seven binding directives which would kick-start the
reform. The Jammu and Kashmir government has cleverly used the Supreme Courtís
order on revamping police legislation to bring in the J&K Police Bill 2017 in which
the state government is attempting to bring in a law that gives the police huge
powers andto achieve greater public service and accountability. Rather than achieving
accountability, the bill deprives the stateís population of numerous rights, condones
police acts done without any sense of proportionality, turns neighbor against neighbor,
all the while shielding the police from oversight and accountability.The Draft Bill
thirteen Chapters with 155 Sections. The chapters pertain toDefinition and

*LL.Mstudent Central UniversityKashmir

1.Writ Petition (Civil) 310 of 1996 (Supreme Court), 22 September 2006), (2006)8scc1,
(2006)3scc(cri)417.

132


The Police State or Welfare StateJammu and Kashmir State Police Bill 2017

Interpretations (S.1 & 2); Duties, Responsibilities and Functions of the Police (Ss.
3-36); The Police Stations (Ss.37-45); Constitution and Organization of the Police
Service (Ss. 46-63), Training and Capacity Building (Ss. 64-65); Superintendence
and Administration of Police (Ss.66-80); Policing in the context of Public Orderand
International Security Challenges(Ss.81-86);Effective Crime Investigation (Ss.8790);
Service Conditions, Control and Discipline (Ss. 91-99);Police complaints
Authorities, (Ss. 100-120);Regulations of Public Assemblies & Traffic (Ss.121130);
General Offences and Punishment (Ss.131-145) and finally with various
Miscellaneous issues.(Ss. 146-155).

A Police State

The Merriam-Webster dictionary defines a police state as:
A political unit characterized by repressive governmental control of political, economic,
and social life usually by an arbitrary exercise of power by police and especially
secret police in place of regular operation of administrative and judicial organs of
the government according to publicly known legal procedures.

In a democratic society, the police serve to protect, rather than impede,
freedoms. The very purpose of the police is to provide a safe, orderly environment
inwhichthesefreedoms canbeexercised.Ademocraticpoliceforceis not concerned
with peopleís beliefs or associates, their movements or conformity to state ideology.
It is not even primarily concerned with the enforcement of regulations or bureaucratic
regimens. Instead, the police force of a democracy is concerned strictly with the
preservation of safe communities and the application of criminal law equally to all
people, without fear or favour (United Nations International Police Task Force,
1986).

  1. Proportionality:
    The primary aim of the police bill is to establish the prevention of crime and
    reduce the crime rate.Besides it to develop the police community relationship. Section
    4(g) demands that the police ìprevent and reduce crimes by exercising lawful powers
    to the maximum extentî. The police must intervene using the most extreme measures
    regardless of the circumstances and this provision is without any proportionality.
    Section 136, empowers the police to incarceration any person for even the most
    minor offences. It permits imprisonment for cleaning furniture, defacing a wall,
    urinating in public, riding a bicycle after dark, letting a pet run free, and jumping the
    queue, among other trivial ìcrimesî.2 These provisions are lack of proportionality

2 volxlviiI30 no 13Economic & Political Weekly.

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Vitasta Law Journal, Vol.3 No.3, 2017

and could be used for harass the public and cause fear in public. This is not good for
police public relationship as effective tool for controlling the crime in the society.

  1. Encroachment of police on judiciary:
    The police act encroaches on the domain of judiciary by empowering the
    police to resolve the dispute under section 4(L).The main purpose of the police to
    prevent the crime and not to resolve the civil disputes between the parties in police
    station. By this section the police act as a judiciary as well as panchayat in their
    jurisdiction and will resolve the disputes in the police stations. Therefore section
    4(L) is inconsistent with the provisions of the constitution3.
  2. Medical examination of accused:
    Any qualified medical practitioner shall be bound to conduct medical
    examination of an accused or suspect person who is produced before him by a
    police officer for medical examination on the request of such officer. Section 20
    does not require the suspect to consent to treatment, which means that the treatment
    could violate medical ethics, violate the suspectís constitutional rights and even
    constitute torture. Section 22 requires the police to take any person injured by them
    to the ìnearest qualified medical practitionerî. These provisions will allow the police
    to choose the doctor who will examine the patient for evidence of torture, rather
    than forcing the police to allow an independent doctor or one chosen by the patient
    to conduct the examination4. Under Section 21 of the bill, any hospital treatment is
    subject to ìadequate police surveillance and Observationî and the hospital must
    turn over all medical records to the police if requisitioned, which not only violates
    doctor-patient confidentiality, but is likely to intimidate the patient and hospital staff.
    Further, the bill allows only members of the State Human Rights Commission (SHRC)
    or the Complaints Authority ñ not family, friends, lawyers or physicians hired by the
    family ñ to verify the condition of a person believed to have been harmed or tortured
    by the police (Section 45(1)). These provisions seem designed to inhibit the suspect/
    accused from revealing torture and to ensure that evidence of torture remains
    hidden5.

3
Discussion held on JK police bill at central university of Kashmir,sonwar dated 08/
07/2017.

4 Mir MehrajUddin, ìJammu and Kashmir Police Bill, 2017î, Greater Kashmir, 26
February2017.

5 Ibid

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The Police State or Welfare StateJammu and Kashmir State Police Bill 2017

  1. Rights or Right to Torture:
    Section 13 allows the police to demand personal information from anyone
    for ìsufficient reasonsî and permits the police to ìtake appropriate and reasonable
    steps for establishingÖidentity.î Read broadly, the provision suggests that the police
    may demand a DNA sample without judicial oversight.Section 16(2) allows the
    police to enter private establishments if members of the public are there. The bill
    does not define ìprivate establishmentîor how many ìmembers of the publicî must
    be present, which allows the police broad discretion to enter any private property. 6
  2. Sufficient facilities at the Police Station:
    S. 38 of the proposed Bill is silent about gender sensitivity. The facilities
    should include women force and facilities which are gender friendly. The police
    force should be strengthened as per the population of the area which falls in their
    jurisdiction to cater the need of the society. The police should be equipped on the
    modern policingand given sufficient funds7.
  3. Training and Capacity Building(S. 65):
    Training and Capacity building is an importantfactor for efficient functioning
    andthe proposedBill has addressed to this issue. S. 65 providesfor training and
    capacity building them. The police station in many districts is in worse conditions.
    Training and capacity building should begiven top priority and it is ofutmost importance
    that the inputs regardingbetter habits, proper behavior, respect humandignity, respect
    for women, dealing withchildren, demonstration of patience, importanceof F.I.R.
    and pro-active role in thedisastermanagement should be inculcated in them8.

6
For example, is the wording vague enough to allow the police enter a private home if
two friends come for a visit?

7
Jammu and Kashmir Police Bill, 2017.

8
Ibid

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Vitasta Law Journal, Vol.3 No.3, 2017

  1. Banning and regulation of certain devices and substances:
    Section 85 allows the government to ban or regulate ìproduction, sale,
    storage, possession, or entry of any devices or equipment orÖsubstance or any
    inflow of fundsî in these zones, which means it can decide what enters the zone
    and how it can be used, including basic necessities, cell phones and money9. The
    government could use this power not only to control the population but to punish it
    freely. It may cause problem for the business men and which ultimately affect the
    economy of the state as well as of the people.

Presumably, the SOPs designed to deal with disturbed areas are likely to
grant the police greater powers, which means the executive, without any legislative
input or oversight, could determine powers that the centre felt were appropriate for
a legislature to decide. Since the J&K government does not always publish its
SOPs, civilians may know nothing of these special powers. Another concern is that
while the AFSPA and the DAA spell out special police powers in their text, the bill
seems to allow the government to authorize special powers through Special Operating
Procedures (SOPs) that apply only in the zones (Section 86)10.

  1. Civilian Monitors and Enforcers:
    Section23 requires all service providers, as notified by the government, to
    maintain accurate records of their clients and transactions. Under Section 24, the
    service provider must ìexpeditiouslyî release these records ìon demand by a
    policeofficerî. The bill defines a service provider broadly so as to cover any person,
    agency or employee who provides a service, even for free, including services related
    to ìphone, internet, computer, vehicle, food, water, finance, rent, pawning, hospital,
    laboratory, sanitation, repair, electricity, deposit, share, construction, security, trade,
    loan, fuel, rest, [and] recreationî. Nowhere does the bill require a warrant for this
    information or judicial oversight over its release. It violates privacy rights, and could
    easily be used to achieve economic, social or political control.

It piles the pressure on service providers by allowing the government, by
notification, to require service providers to obtain a certificate from the police before
starting their businesses (Section 25). The police are entitled to ask for any ìreasonable
and necessary information about their contemporary and past activitiesî before
issuing a certificate. It grants the police enormous discretion to determine what

9
(ìGovernment Wants to Formalize Draconian Police Practicesî, The Daily Rising
Kashmir, 26 February 2017)

10 For example, the state government has yet to publish the SOP it adopted in 2011 on
crowd control, although presumably it is in full force.(ìNew SOP to Tackle Civilian
Unrest in J&Kî,outlookindia.com, 29 April 2011).

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The Police State or Welfare StateJammu and Kashmir State Police Bill 2017

information is required, which means it can effectively monitor all persons in the
service industry and punish anyone it does not like by refusing a certificate.

The bill further co-opts citizens to act as informal police in a manner designed
to turn citizens against each other. It uses a carrot-and-stick approach to encourage
citizens to police each other. Section 62 allows the director general of police (DGP)
to establish and arm a voluntary civilian force, the village defense committee (VDC),
to protect ìlife and propertyî in the villages. Ordinary civilians also can volunteer,
although for some remuneration, as special police officers (SPOs) if the DGP with
the approval of the government, authorizes it (Section 63)11. The bill allows the
police to ìdemandî that citizens serve as civilian police ñ a demand that cannot be
disobeyed without ìreasonable cause (Section 14 (1)î. The police can also demand
ìprofessional, mental or physical services of any personî during an accident or
disaster to prevent danger or to maintain peace (Section 129).Informers or members
of the public who Provide information that helps prevent crime or leads to the
investigation or arrest of a suspect may be paid a reward (Sections 33-34).
Alternatively, those who refuse to aid the police, when required, violate the law and
could be prosecuted (Sections 14(2), 129 and 135(2)12.

a) Special Security Zones

Under the Draft Bill, the Government of Jammu and Kashmir can declare
any area a ìspecial security zoneî when it is ìwidely and intolerably beset with
violence or insurgency or destruction of public property on account of communal or
terrorist or anti-national activities.î13

The Bill provides that the state Government can ban or regulate the
production, sale storage, possession or entry of certain substances or funds into
Special Security Zones14. It can also set up a structure to integrate administrative
measures with police responses, and create ìan appropriate police structure and a
suitable command, control and response systemî. The Director General of Police

11 Both the SPO and the VDC clauses are likely to violate the Constitution according

to the S upreme Court ruling in NandiniSundar and Orsvs State of Chhattisgarh.
(Paras 38 and 48). Which NandiniSundar is challenging as contempt of court
(ìSalwaJudum: SC Asks Chhattisgarh to Respond to Contempt Pleaî,

Zeenews.com,24 July 2012).
12 Article 129 does not reference prosecution, however, the bill makes it clear that the
civilians is legally obligated to provide the services required by the police,which
means there will be some type of punishment if the provisions is violated
(NandiniSundar&Orsvs State of Chhattisgarh, (2011) 7 SCC 547 and ìSalwaJudum:
SC Asks Chhattisgarh to Respond to Contempt Pleaî, Zeenews.com, 24 July 2012).
13 Section 82
14 Section 85

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Vitasta Law Journal, Vol.3 No.3, 2017

is expected to lay down ìStandard Operating Procedures to be followed by the
police in a Special Security Zoneî15.

While states may choose to regulate certain substances or funds in notified
areas, such restrictions must be necessary and proportionate and applied in a nondiscriminatory
manner. Rights groups working on police reform in India have pointed
out that the powers granted under these provisions are too broad16. The Model
Police Act, 2006, drafted by a committee set up the Government of India, also
provides for the creation of Special Security Zones. However it says that such a
declaration has to be made by the Union Government, with the concurrence of the
State Government. Further the declaration is time-bound17. The Draft Bill contains
no such safeguard. The declaration of certain areas as ëspecial security zonesí and
the introduction of special operating procedures could also facilitate human rights
violations, especially when the duration of such a status is not fixed or declared.
New PoliceActs draftedafter the Supreme Court order in states likeAssam,Tripura
and Chhattisgarh, which are also witness to armed uprisings, do not contain similar
provisions. The establishment of Special Security Zones could, in practice, amount
to creating undeclared emergency regimes. With respect to the AFSPA, the UN
Human Rights Committee has said that it ìregrets that some parts of India have
remained subject to declaration as disturbed areas over many yearsî and
recommended that ìthe application of those emergency powers be closely monitored
so as to ensure its strict compliance with the provisions of the Covenant.î18,

Chapter VII of the Draft Bill must be revised to ensure it is compatible with
Indiaís obligations under the ICCPR. The declaration of an area as a ëSpecial
Security Zoneí must be time-bound and subject to periodic review19.

9.Right to Reparations

Section 133(b) of the Draft Bill prescribes imprisonment for up to one year when a
police officer ìdeliberately, knowingly and maliciously with intent to implicate an
innocent person in a criminal offence records a false statement or make a forged
document or raises a false allegation of attack on the police.î

15 Section 86

16
ìExperience indicates that once the SSZ are created, police will push for, and get,
special powers that will curtail civil liberties.îCommonwealth Human Rights Initiative
(CHRI),

17
Section 112 of the Model Police Act, 2006, says the notification has to be approved
by the appropriate legislature within six months, and cannot exceed two years unless
it is ratified by Parliament with the concurrence of the State Legislature.

18 Concluding observations of the Human Rights Committee: India, 4 August 1997,
See Human Rights Committee, General Comment No. 29: States of Emergency
(article 4), 31 August 2001

19 Amnesty International submission to the Jammu and Kashmir Home Department30
March 2017.

138


The Police State or Welfare StateJammu and Kashmir State Police Bill 2017

The Bill does not make any provision for reparations to victims of intimidation
and harassment through wrongful implication in a criminal offence. Under the ICCPR,
anyone subject to unlawful arrest or detention shall have an enforceable right to
compensation. International standards also stipulate that victims of gross human
rights violations are entitled to adequate, effective and prompt reparations.

Authorities must provide effective remedies, including reparations, for all
human rights violations committed by police personnel, including abuse, wrongful
arrest and detention.

10.Sanction for Prosecution :

Under Section 142 of the Draft Bill, no person can start legal action against
a police officer for any action ìdone or intended to be done in good faith in the
discharge of his official dutiesî without the permission of the State or Central
Government. Section 92 says that every police officer ìshall be considered to always
be on dutyî.

The requirement of prior sanction or permission for prosecution violates
the non-derogable right to remedy guaranteed to all persons under international
human rights law. Amnesty International and other human rights organizations have
documented how the requirement of prior sanction creates a climate of impunity
for serious human rights violations in Kashmir.

Section 92 also seems to suggest that all acts done by police personnel at
any point in time would be in the official discharge of their duties, thereby expanding
the scope of the immunity. Any law which provides immunities from prosecution
for human rights violations, including those which lead to de facto immunity, should
be deleted from the Draft Bill.

  1. Entry to Private Places:
    The Draft Bill empowers all police officers to ìhave free entry in every
    public place including private establishments where members of the public are
    presentî in order to ìprevent serious disorder or breach of peace and imminent
    danger to personís assembled20.îElsewhere, the Bill says that police officers who
    enter any building or place without lawful authority or reasons for causing annoyance
    can be imprisoned for up to a year21.

20 Section 16

21 Section 133(a): ìWhoever, being a Police Officer (a) enters into or conducts
unnecessary searches or causes to be searched without lawful authority or reasons in
any building, vessel, tent or place for causing annoyanceÖshall, on conviction, be
punished with imprisonment for a term which may extend to one year and shall also
be liable to fine.î

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Vitasta Law Journal, Vol.3 No.3, 2017

International human rights standards stipulate that ìno one shall be subjected
to arbitrary or unlawful interference with his privacyî22. Laws and policies which
limit the right to privacy must be the least restrictive possible, ìreasonable in the
circumstancesî, and not run counter to other human rights23. The provision in the
draft bill appears to be framed too broadly, allowing the police entry into private
places even for minor breaches of peace. Further the absence of definition of
ëserious disorderí also makes the provision vague. The Supreme Court of India has
said that the right to privacy is part of the right to life and personal liberty guaranteed
by the Constitution of India. The Model Police Act, 2006 does not carry a similar
provision.

The Supreme Court of India has said that the right to privacy is part of the
right to life and personal liberty guaranteed by the Constitution of India. The Model
Police Act, 2006 does not carry a similar provision. Rights groups have previously
reported several instances of alleged harassment and intimidation by the Jammu
and Kashmir police. Amnesty International is concerned that the Draft Bill may
facilitate violations of the right to privacy by empowering the police to enter private
establishments arbitrarily.

PRAKASH SINGHCASEíSAIMSAND OBJECTIVES:

The Prakash Singh Reforms intended to direct to redefine the role and
functions of the police and frame a new Police Act on the lines of the model Act
drafted by the National Police Commission in order to ensure that the police is
made accountable essentially and primarily to law of the land and the people.
Directions are also sought against the Union of India and State Governments to
constitute various Commissions and Boards laying down the policies and ensuring
that police perform their duties and functions free from any pressure and also for
separation of investigation work from that of law and order.Directions of the Supreme
Court in Prakash Singh v. Union of India. These directives can be broadlydivided
into two categories:

(i) those seeking to achieve functional autonomy for the police (Part I); and
(ii)those seeking to enhance police accountability (Part II).
(Part I):Directive 1. State Security Commission The State Governments are
directed to constitute a State Security Commission to:

(i) ensure that the State Government does not exercise unwarranted influence
or pressure on the police,
22 Article 17 of the ICCPR

23 Human Rights Committee, General Comment no. 16: Article 17, The right to
respect of privacy, family, home and correspondence, and protection of honor and
reputation, 4 August 1988, available at http://www.unhchr.ch/tbs/doc.nsf

140


The Police State or Welfare StateJammu and Kashmir State Police Bill 2017

(ii) lay down broad policy guidelines,
(iii) evaluate the performance of the State police.
Directive 2. Director General of Police the State Government is to ensure that the
Director General of Police is appointed through a merit based, transparent process
and enjoys a minimum tenure of two years.
Directive 3. Minimum tenure for other police officers The State Government is to
ensure that other police officers on operational duties (including Superintendents of
Police in charge of a district and Station House Officers in charge of a police
station) also have a minimum tenure of two years.
Directive 4. Police Establishment Board The State Government is to set up a Police
Establishment Board, which will decide all transfers, postings, promotions and other
service related matters of police officers of and below the rank of Deputy
Superintendent of Police and make recommendations on postings and transfers of
officers above the rank ofDeputy Superintendent of Police.
Directive 5. National Security Commission The State Government is to set up a
National SecurityCommission at theUnion level to prepare a panel for selection and
placement of Chiefs of the Central Police Organisations (CPO), whoshould also be
given a minimum tenure of two years.
(Part II)Directive 6. Police Complaints Authority The State Government is to set
up independent Police Complaints Authorities at the State and district levels to look
into public complaints against police officers in cases ofserious misconduct, including
custodial death, grievous hurt or rape in police custody.
Directive 7. Separation of investigation and law and order police The State
Government is to separate the investigationand law and order functions of the police.
CONCLUSION:

A proper balance of individual rights and public interest has to be achieved
through the mechanism of the rule of law.The Government should in place healthy
mechanisms to make the police more transparent,accountable, and respectful of
human rights and people friendly. This is the essence of human rights law and the
avowed purpose of democratic policing. All legislation and rules, particularly those
related to the regulations, powers and duties of the police, must be consistent with
human rights law and standards.

Importantly in a democratic society, it is the responsibility of the State to
protect and promote human rights andstate government must take into account the
prevailing state ofimpunity for human rights violations in Jammu and Kashmir, and
ensure that this situation is not intensified further by passing the Draft Bill in its
current form. The J&K government should peruse the various Supreme Court rulings
and national human rights commission recommendations while drafting new police
law.

141


142
Vitasta Law Journal, Vol.3 No.3, 2017
Study of Regime of IPR and Competition Law
Bhanu Pratap Singh*
Introduction
Today the world has come under a single umbrella in the era of globalization,
so that the conflict, overlap between different regimes of law is inevitable. One of
these conflicts has been observed post Uraguay Round of 1994 between Intellectual
Property Law (Rights) and Competition Law. Though, competition law and
intellectual property rights have evolved historically as separate branchs of law, but
owing to similar goals and aims of promoting innovation and economic growth, a
considerable overlap between the two fields of law has been observed. IPR and
Competition Law both are based on the basic objective of promoting the economic
expansion, technological progression and ultimately consumer wellbeing, but at the
same time there exists considerable differences due to the ends used by each system
to endorse their goals. Where IPRs are generally assigned soon after the assets
has been created, while competition law only intervenes significantly once the later
becomes the source of market power. Therefore in short, IPR encourages innovation
and new product in the market, whereas in the long run, Competition Law promotes
consumer welfare by introducing new product in the market and maintains qualities
of goods in the market.1 Intellectual property rights (IPRs) are intended to reward
the author or innovator with the fruits of his or her labour. In a sense, the author of
intellectual property is given the legal right to exclude others from enjoying the
benefits resulting from his work. IP Laws are monopolistic in nature. They guarantee
an exclusive right to the creators and owners of work which are a result of human
intellectual creativity. Also they prevent commercial exploitation of the innovation
by others. This legal monopoly may, depending on the unavailability of substitutes in
the relevant market, lead to market power and even monopoly as defined under
competition law. Since the aim of such innovation is ultimately more competition,
there competition law and IP become less divergent. These two branches of law,
being multifaceted and dialectic, allow for the interaction
of seemingly conflicting
objectives and are capable of converging on the ultimate goal of enhancing the
competitive dynamics of innovation.2 IPR and Competition Law have been described
as the unhappy marriage, where the IPR is said to promote monopolies, while the
latter is designed to battle and oppose it. Now it has become very important

  • LL.M- 1st Year, Gujarat National Law University, Gandhinagar, Gujarat
    382007, e-mail- bhanus660@gmail.com
    1 Patel, Atul. ìIntellectual Property Law & Competition Lawî.ìJournal of International
    Commercial Law & Technologyî Vol 6 Issue 2 (2011): 120.
    2 Giorgio Monti, ìArticle 82 EC and New Economy Marketsî, Competition,
    Regulation and The New Economy (2004): 48-49.

    Study of Regime of IPR and Competition Law

todemarcate clearly the extent of intellectual property rights protection and
competition policy for the intervention and protection of such innovations from being
misused and creating hegemony.

Global Perspective

In the wake of liberalization, privatization and globalization policy, India has
opened its market, but as the result, it has started facing alien and domestic
competition, sometimes throat cutting. This necessitated the enactment of the
Competition Act, 2002, with the view to put restraint on the unhealthy commercial
practices and curb the monopolies and encourage competition in Indian market.
History of the competition law does not commence from the enactment of the
Competition Act of 2002. It can be traced long back historically since the time of
Roman Empire. However, modern day competition law has its genesis in the
American Anti-Trust Statutes like Sherman Act, 1890 and Clayton Act of 1914 and
after 2nd World War American Competition Law became the most acceptable base
for the competition law of the various nations. Further, IPR & Competition Law
interface finds expression in Article 81 of European Commission Treaty, where the
compatibility of IPR licensing agreements with competition policy has been
elaborated.3 By the early 1970s the ascension of the antitrust over IP interests
became evident, when Deputy Assistant Attorney General in the Department of
Justiceís Anti-trust Division announced the ìNine No-Noísî4. The Nine No-Noís
were:1)
Tying of purchase of unpatented materials as a condition of a patent license.
2) Requiring the licensee to assign back or grant an exclusive grant-back

licenseof subsequent patents obtained by the licensee.
3) Restricting the right of the purchaser of the product in the resale of the

product.
4) Restricting the licenseeís ability to deal in product outside the scope of the

patent.
5) Promising the licensee that the licenser would not grant further licenses.
6) Mandating that the licensee take a ìpackage licenseî.
7) Imposing royalty provisions not reasonably related to the licenseeís sales.
8) Restricting a licenseeís use of a product made by a patented process.
9) Requiring a minimum resale price for the licensed product.

This Nine No ñNoís put the patent owners on the notice that it would not
be the business as usual, although many of the prohibited practices did in fact
continue. The Nine No-Noís were the part and parcel of a larger antitrust regime

3Thefull text ofArticle81 is availableat European Union, ìTreaty
Establishing The EuropeanCommunityî: Article81: http:// eurlex.europa.euLexUriServ/
LexUriServ.do?uri=CELEX:12002E081:EN:HTML(Accessed on 5th September 2017)

4 Leslie, R. Christopher. Antitrust Law and Intellectual Property Rights-Cases
and Materials. Oxford:Oxford UniversityPress,2011:42

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Vitasta Law Journal, Vol.3 No.3, 2017

that treated almost all business relationships with suspicion. Later on these Nine
No-Noís rule were found inconsistent with the new emerging anti-competitive
practices.

Then, the Technology Transfer Block Exemption Regulation (TTBER) OF
1996 listed 8 Blacklisted categories including certain restrictions relating to price
output, competing products, exports to territories, within common market, customer
allocation, R&D activities and full grant backs of license improvements through this
block exempt was replaced by the 2004 TTBER.

In U.S Section 33(b) (7)of Lanham Act, 1946 deals with the entanglement
of Trademarks and Competition Law, again U.S Courts have evolved the Competition
misuse doctrine applicable to Trademark based on ìClean handsî doctrine5. Further
Article 82 of the Treaty of European Union incorporates the ìEssential Facilities
Doctrineî (as matter of sub-sect), where the abuse of the dominance arises from
the refusal of the supply (of licenses, product by IPR holder), but courts have
strictly applied the principle that mere ownership will not confer dominance and
mere refusal will not constitute abuse.

Later, most of the major countries, like China, Brazil, Russia, Singapore,
South Korea and Japanestablished their own competition regimes in the wake and
light of emergence of new trends in the regime of IPR and Competition law.

Conflict between IPR and Competition Law

The relationship between Competition Law and IPR are referred as
ìunhappy marriageî, since IPR designates the boundaries, where the competitors
exercise legal exclusivity and this exclusivity has been provided with the aim of
providing an incentive to enterprises and individuals to create and innovate.

Empirically, it has been found that rights over IPR, while ensuring the
exclusion of rival firms from exploiting the protected technologies and innovation do
not necessarily bestow their holders with market power, provided only when
alternative technologies are available.6 Thus the primary concern in regard to the
relationship between IPR and Competition Law is that IPR can harm the consumers
because it results in setting of prices at a higher rate than those needed to secure
the cost effective production.7

Therefore in the other words it can be said that IP Laws work toward
creating monopolistic rights, whereas competition law battles or counter it. Hence,
in this way there seems to be the conflict between the objectives of both the laws.8

5 Fugate,W.L. ìForeign Commerce And The Antitrust Lawsî. Volume II (1996):10-11.

6 Pham,Alice.ìCompetition LawAnd Intellectual PropertyRights: Controlling AbuseOr
Abusing Control?î CUTS International (2008): 05.

7Kundu,Abhipsita,BhattacherjeeDipayan.ìOwnersíRight versusOwnersí
Monopoly: The IPR Competition Interfaceî. CNLU Law Journal, Volume.3(2017):60

144


Study of Regime of IPR and Competition Law

The United States District Court, Connecticut had observed that ì The Conflict
between the antitrust and IPR arises due to the methods adopted by them to meet
their ends, IP Laws rewards the inventors with exclusive rights(monopoly), while
antitrust laws circumscribe the restraint in competition. 9 Again United States District
Court has decided that the owner of intellectual property does not have absolute
right to use the rights conferred without any restriction in any manner whatsoever
they wish, contrary to the circumscribed limits put up by the antitrust / competition
law.10

In U.S.A as the general rule the absolute freedom in the use or sale of the
patent has been granted and the very object of these laws is the monopoly and the
rule is with the few exceptions that any conditions which are not in their very nature
illegal with regard to this kind of the property imposed by the patentee and agreed
to by the licensee for the right to manufacture or use or sell the article, will be
upheld by the courts. The fact that the conditions in the contracts keep up the
monopoly or fix prices does not render them illegal.11

Many Courts found Antitrust and Patent laws to be inherently in conflict.
Invoking cases from the early era, some courts observed that ìthere is an obvious
tension between the patent laws and antitrust laws, since one body of law
protects monopoly power while other seeks to proscribe itî.12

Hence it would be not wrong to infer that Competition law maximizes social
welfare by condemning monopolies while intellectual property law does the same
by granting temporary monopolies.

Anti Competitive Practics by IPR Holders13

Section 3(5) of the Competition Act, 2002 declares that ìreasonable
conditions as may be necessary for protectingî any IPR will not attract section 3.
The expression ìreasonable conditionsî has not been defined or explained in the
Act. By implication, unreasonable conditions that attach to an IPR will attract section

  1. In other words, licensing arrangements likely to affect adversely the prices,
    8
    Vishnu S. ìConflict Between Competition Law and Intellectual Property
    Rightsî. Articles base: http://www.articlesbase.com/intellectual-property-articles
    conflict-between-competition-law-and-intellectual-property-rights3106578.
    html(9September, 2017).

9 SCM Corp. V Xerox Corp. 645F. 2d 1159.1203 (2d Cir.1981).
10 United States v Microsoft 253 F. 3d 34 (D.C. Cir 2001).
11 E.Bement & Sons v. National Harrow [186 U.S.(90) (1902)]
12 United States v. Westinghouse Electric Corp. , 648F.2d 642,646( 9th Cir.1981)
13 Intellectual Property Rights under The Competition Act, 2002, Advocacy

Booklet; http://competitioncommission.gov.in/advocacy/PP-CCI_IPR_7_12.pdf; (10
September 2017)

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quantities, quality or varieties of goods and services will fall within the contours of
competition law as long as they are not in reasonable juxtaposition with the bundle
of rights that go with IPRs. For example, a licensing arrangement may include
restraints that adversely affect competition in goods markets by dividing the markets
among firms that would have competed using different technologies. Similarly, an
arrangement that effectively merges the Research and Development activities of
two or only a few entities that could plausibly engage in Research and Development
in the relevant field might harm competition for development of new goods and
services. Exclusive licensing is another category of possible unreasonable condition.
Examples of arrangements involving exclusive licensing that may give rise to anti-
competition concerns include cross licensing by parties collectively possessing market
power, grant backs and acquisitions of IPRs. A few such practices are described
below.

  1. Patent pooling is a restrictive practice, which will not constitute being a part of
    the bundle of rights forming part of an IPR. This happens when the firms in a
    manufacturing industry decide to pool their patents and agree not to grant licenses
    to third parties, at the same time fixing quotas and prices. They may earn supra-
    normal profits and keep new entrants out of the market. In particular, if all the
    technology is locked in a few hands by a pooling agreement, it will be difficult for
    outsiders to compete.
  2. Tie-in arrangement is yet another such restrictive practice. A licensee may be
    required to acquire particular goods (unpatented materials e.g. raw materials)
    solely from the patentee, thus foreclosing the opportunities of other producers.
    There could be an arrangement forbidding a licensee to compete, or to handle
    goods which compete with the patenteeís.
  3. An agreement may provide that royalty should continue to be paid even after the
    patent has expired or that royalties shall be payable in respect of unpatented
    know-how as well as the subject matter of the patent.
    4.There could be a clause, which restricts competition in R & D or prohibits a
    licensee to use rival technology.
  4. A licensee may be subjected to a condition not to challenge the validity of IPR in
    question.
  5. A licensee may require to grant back to the licensor any know-how or IPR
    acquired and not to grant licenses to anyone else. This is likely to augment the
    market power of the licensor in an unjustified and anti-competitive manner.
  6. A licensor may fix the prices at which the licensee should sell.
  7. The licensee may be restricted territorially or according to categories of customers.
  8. A licensee may be coerced by the licensor to take several licenses in intellectual
    property even though the former may not need all of them. This is known as
    package licensing which may be regarded as anti-competitive.
    146
    Study of Regime of IPR and Competition Law
  9. A condition imposing quality control on the licensed patented product beyond
    those necessary for guaranteeing the effectiveness of the licensed patent may be
    an anti-competitive practice.
  10. Restricting the right of the licensee to sell the product of the licensed know-how
    to persons other than those designated by the licensor may be violative of
    competition. Such a condition is often imposed in the licensing of dual use
    technologies.
  11. Indemnification of the licensor to meet expenses and action in infringement
    proceedings is likely to be regarded as anti-competitive.
  12. Undue restriction on licenseeís business could be anticompetitive. For instance,
    the field of use of a drug could be a restriction on the licensee, if it is stipulated
    that it should be used as medicine only for humans and not animals, even though
    it could be used for both.
  13. Limiting the maximum amount of use the licensee may make of the patented
    invention may affect competition.
  14. A condition imposed on the licensee to employ or use staff designated by the
    licensor is likely to be regarded as anticompetitive.
    Interface Between IPR and Competition Law

Competition law does not prohibit monopoly but anti-competitive conduct
or practices. It accepts the achievement of an economic monopoly by the means of
research and development and consequent IPRs as valid and legitimate conduct
which, amount to competition on merits14. Sometimes the IPRs and Competition
law are considered to be complementary to each other in the sense that IPRs policy
creates and protects the rights of innovators to exclude (iusexcludendi) others
from using their ideas or forms of expressions. An IPR holder in his self-interest
may sue would be rivals for infringement, deterring entry to compete or prolong its
market power by precluding access to the technology necessary for next generation.
Here competition law can be said to be an asset of the protection of IPRs out of its
virtue towards its welfare goal.

It is often claimed that IPR increases the protection of the interest of IP
owner without due justification in the pretext of the promotion of innovation and
therefore promoting merely the rent-generating behavior. But contrary the U.S.
Court has decided that, where patentee attempted to limit the use of patented material,
there the possession of a valid patent would not even serve to essentially immunize
them from antitrust law liability. Therefore a patenteeís action that restrained
competition beyond the scope of its patent could rightfully be a concern for antitrust
law.15 Then the interface between the IPR and competition law has been tried to be
achieved by Trade Related Aspects of Intellectual Property Rights (TRIPS)

14 Massimo Motta, Competition Policy: Theory and Practice 19 (2004).
15 Motion Picture Patents Co. v. Universal Film Manufacturing Co. [ 243, U.S 502(1917)]

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Agreement, with intense lobbying by U.S.A, Japan, European Union and other
developed nations in order to strengthen their market power by putting some barriers
in the form of universal principle against the infringement of IP by developing or
underdeveloped nation. Hence, there was a fear which is now turning to be the true
that enhanced market power through stronger IPR protection may facilitate other
forms of anticompetitive behavior including the selling practices and licensing
restrictions. But interestingly competition law related compliances has been imposed
on the developing countries. Though, limited the text of TRIPS Agreement under
Art 8.2 and Art 40, as a matter of exhortation and not mandatorily it, undertakes the
role of competition policy in supplementing IPR policy. It is an interpretive principle
in favour of adopting measures necessary for preventing the monopoly abuse and
anticompetitive licensing arrangements by IPR holders, which is put into operation
by Article 40 (a lexspecialisprovision to the general provision in Article 8.2)16,so
TRIPS Agreement establishes a regime for controlling such practices.

Now in recent times a change in the relationship of IPR and Competition
Law has emerged as IP law can now achieve the desired goal even though restrictions
and limits have been put, and this can be achieved by ensuring that competition law
does not essentially expropriate every IPR, that result in market power. So, it is
required that significant market power should be treated more benevolently because
ìthe source of its market power of intellectual property and being harsh would
compromise innovation and the social benefits accruing from it.î17

India, being a signatory to the TRIPS Agreement is under obligation, and
has amended its IPR regime, therefore the importance and need of highly effective
competition law in India has become relevant. IPR is a subject matter among the
other ones of Competition law and it has been designed to give protection to patent
holder with a view to motivate and encourage innovation rather harassing inventors.
Thus, Competition Act, 2002 under section 3(5) as exception provides a blanket
exemption to shield IPR in order to adhere to the commitment to protect and promote
innovation, technological advancement and encouragement to the IPR owners to
make their inventions public. But this exemption is not the absolute one, the same
Competition Act, through the round hole of ìabuse of dominant positionî under
section 4 tries to keep some vigilance over IPRs monopolistic nature. Even though,
IPR under Competition Act, 2002 has been kept at a broader liberty and major
exemptions have been granted.

16 Nguyen,T.T,and Lidgard,H.H. ìTrips Competition Flexibilitieshttp://lup.lub.lu.se/luu
download?func=downloadFile&recordOId=1528251&fileOId=1528252(11September,2017).
17 Anderman, D. Steven, ed. The Interface between Intellectual Property Rights and
Competition policy. Cambridge: Cambridge University Press, 2007: 525

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Study of Regime of IPR and Competition Law

Remedy to IPR Genrated Anti-Competitiveness

A. Refusal to Deal
IP holder may refuse to grant license because of its monopolistic position
enjoyed due to the IPR protection. Courts in U.S.A and European Union have at
many times held that refusal to license a patent violates competition law. Thus
where, the mere accumulation, non-use and enforcement of IPRs for the purpose
of destroying competition in the market, there antitrust laws comes into play and
compulsory licensing may be imposed as the remedy to cure violation.

B.
Compulsory Licensing
ìCompulsory licensing is an involuntary contract between a willing
buyer and an unwilling seller imposed and enforce d by the stateî18. Compulsory
licensing may be used as a counter remedy in the antitrust or misused situations. In
respect of IPR and Competition law interface, compulsory licensing can be granted
on 2 points19

  1. Refusal to license
  2. Anti-competitive exercise of IPRs by patent holders.
    Thus, in the case of grant of compulsory licensing the IPR holder does not
    loose the right to act against non-licensed party in the case of the infringement/ use
    by the person other than licensee(compulsory) and it is mandate of the law that the
    party/ person obtaining compulsory licensing must compensate the patent holder
    through remuneration. Article 31(k) of the TRIPS Agreement lays down the rule
    for the grant of such licenses. Indian Patent regime, herein referred as Patent Act,
    1970 stipulates compulsory licensing under section 84 on the following grounds
  3. Reasonable requirements of the public with respect to the patented invention
    have not been satisfied.
    2.Patented invention is not available to the public at reasonably affordable
    price.
    3.Patented invention is not worked in the territory of the India.

18Arnold G.J. ìInternational Compulsory Licensing: The Rationales and the Realit î. The
Journal of Law and Technology. (1993): PTC Research Foundation of the Franklin
Pierce Law Center IDEA. http://ipmall.info hosted_resources/IDEA/p349.Arnold.pdf (11
September, 2017).

19 See Supra note no 6: p.24.

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C. Parallel Import
Parallel import is a non-counterfeit product imported from another country
without the permission of IPRs owner. Parallel imports are often referred as gray
product and are implicated in the issue of the international trade and IPR. Thus,
WTO Glossary defines parallel import as ìwhen a product made legally (i.e; not
pirated) abroad is imported without the permission of the intellectual property right
holder (e.g; the trademark or patent owner). Some countries allow these others do
not.20 Interestingly, no multilateral binding agreements have ever directly addressed
the issue of parallel import. So, the parallel import has not received as much impetus
to restrict the anti-competitive behavior of the IPR, unlike the compulsory licensing.

Conclusion

Indeed, the modern economic expansion envisages of the consumer welfare
ultimately and undoubtly, the IP and Competition law have complementary role in
the fulfillment of the consumer welfare, motivation and incentives to inventor. IPR
do not provide very but certain kinds of the monopolistic rights to provide incentive
to innovator for the commercialization of their fruits. Thus, the legitimate interests
of the IPR holder in the form of the protection that has conferred by the IP Laws
for the promotion of the innovation and against exploitation must not be thwarted
merely in the pretext of promotion of the anti-competitiveness. Interestingly, it has
been found that anti-competition law does not necessarily be quantification on the
use of rights of IP holders but, they have at many times been found complementing
each other in the way encouraging innovation, efficiency and consumer welfare.
The divergence and convergence between IPR and Competition law depends highly
upon the market and socio economic contexts. Thus, either very loose or tight IPR
protection may lead to the situation where Competition law have to take a stand
either to relax or to make more rigid rules to curb the anti-competitive behavior and
it is very ironic to keep both regimes of the law in an air tight compartment exclusive
of each other, and the convergence between these two are bound to occur. The
exemption clause put in Competition Act, 2002 is one of the earnest demand of this
time when IPR in India is growing, because Indian Competition regime is in infantile
stage and legislatures have heavily relied upon European and U.S.A practices to
develop it, therefore, in order to ensure a careful implementation of a rule of a
reason on case to case basis so that, rights conferred under IPRs do not result into
the violation of competition law and the purposeful acquisition of IPRs with a view
to strengthen the monopoly in the market must be dealt with clear and unambiguous
regulatory guidelines of Competition law.

20 http://www.wto.org/english/thewto_e/glossary_e/parallel_imports_e.htm

150


Subhash Chandra Aggarwal v. Parliament of India1 : A
Manifestation of CICís Activist Streak
Siddharth Mehta*

ABSTRACT

On 3rd June 2017, the full bench of the CIC deciding upon a complaint

made by noted RTI Activist Subhash Chandra Aggarwal held that six
national political parties viz. INC,BJP,CPI,CPM, NCP and BSP are
ìsubstantially financedî by the Central Government and are thus ìpublic
authoritiesî within the meaning of Section 2(h) of the Right to
Information Act, 2005. It directed the Presidents/General Secretaries of
the said parties to comply with the provisions of this Act by appointing
Public Information Officers and also to furnish the information sought
by the complainants within a period of four weeks. The Central
Information Commissionís decision was made primarily on the
interpretation accorded to the term ìsubstantially financedî in Section
2(h) of the Act. The author presents a detailed critical analysis of the
said decision; the reasons for the objection to the decision are discussed
in detail. The author is of the view that the interpretation adopted by the
CIC of the phrase ësubstantially financedí is faulty and needs to be
relooked at. The decision is analyzed by taking into account the spirit
of the legislature and by questioning whether the legislature actually
wanted to include ëpolitical partiesí under the ambit of RTI Act.
Keywords : Political Parties under RTI , CIC order, Public Authority, Section 2(h) of the
RTI Act,2005 , Political Parties as Public Authorities.

Facts

The complainant Subash Chandra Aggrawal made a complaint to the Central
Information Commission after being refused information by various Political Parties
on the RTI applications made by him. Most of the political parties refused to furnish
information by arguing that they were not ëpublic authoritiesí within the meaning of
Section 2(h) of the Right to Information Act, 2005 and the only obligation cast upon
them to furnish returns was to the Election Commission and to the Income Tax
Department under the relevant statutes.

  • IVth Year student ofBALLB(H) atAmityLawSchool,Delhi(IPUniversity)
  1. CIC/SM/C/2011/001386
    151
    Vitasta Law Journal, Vol.3 No.3, 2017

The Central Information Commission issued notices to the major political
parties and thereafter proceeded to hear the complainant and the respondents.

The main contentions of the complainant were inter alia that

(i)
The political parties hold Constitutional status and wielded Constitutional
Powers in as much as they had the power as per the Tenth Schedule to
disqualify s Legislation from parleament and State Assemblies.
(ii)
The political parties enjoy the power to issue a whip to the members from
their party and are entitled to virtually ëdisqualifyí them from Parliament
and State Assemblies , if the said members deviate from the party line2;
(iii)
Statutory Status is given to parties under the Representation of People Act,
19573
(iv)
Political Parties enjoy various tax exemptions under the Income Tax Act,
19614 and also exemptions are offered to the contributors5
(v)
The Political Parties are ësubstantially financedí by the Central Government
in as much as they enjoy land at concessional rates from the Central and
the State Government; receive Free Air time on Doordarshan and All
India Radio and also receive two copies of the Electoral Rolls free of cost6

(vi)
Section 29 C of the Income Tax Act, 1961 imposes an obligation on the
political parties to disclose the donations exceeding Rs 20,000. This indicates
a public character.

I. Contentions of the Respondents
The Bahujan Samaj Party contended that it was a political party not notified
under Section 2(h) of the Act, either by the State or the Central Government and
hence, it could not be said to be a ìPublic Authorityî within the meaning of the Act.

It was contended by the NCP that the fact that political parties enjoyed
exemption under the Income Tax Act, 19617 was not indicative of the fact that it
wasa publicauthorityfor thepurposes oftheAct inas muchas similar tax exemption
was granted to various other organizations and groups but those organizations or
groups as the case may be did not come within the purview of Section 2(h)(d) (i).
The other political parties advanced contentions on more or less similar lines.

2 Constitution of India, art. 102, Cl.2
3 Representation of People Act of 1951, Section 29A
4 Income Tax Act of 1961, Section 13A
5 IncomeTaxAct of1961, Section 80GGB
6 Registration of Electors Rules of 1960, Rules 11 &12
7 Income Tax Act of 1961, Section 11A

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Subhash Chandra Aggarwal v Parliament of India: A Manifestation of CICíActivist Streak

II. Issues for Consideration
The Central Information Commission was primarily confronted with the
following issues

(i)
Whether a body which otherwise fulfills the criteria laid down in Section 2
(h)(d) could be said to a public authority in the absence of a notification by
the state or Central Government?8
(ii)
Whether the aforesaid parties are substantially financed for the purposes
of this section?9
III. Decision
The full bench of the Central Information Commission while accepting the
contentions of the complainant(s) held that these six political parties are ìPublic
Authoritiesî within the meaning of Section 2(h) of the Act by virtue of the fact that
they are ìsubstantially financedî10 by the Central Government and are thus under
an obligation to comply with the provisions of the Act.

The Commission while making the order placed reliance on the data sought
by it from the Ministry of Urban Development in which it found that these parties
were using land provided by the Central Government at a concessional rate. It
observed that ìLarge tracts of land in prime areas of Delhi have been placed at the
disposal of the Political Parties in-question at exceptionally low rates. Besides,
huge Government accommodations have been placed at the disposal of Political
Parties at hugely cheap rates thereby bestowing financial benefits on them. The
Income Tax exemptions granted and the free air time at AIR and Doordarshan at
the time of elections also has substantially contributed to the financing of the Political
Parties by the Central Government. We have, therefore, no hesitation in concluding
that INC/AICC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed
by the Central Government and, therefore, they are held to be public authorities
under section 2(h) of the RTI Act.11

The Commission relied upon the decision of the Delhi High Court in Indian
Olympic Association v. Veeresh Malik12 in which Justice Ravindra Bhat examined
the contours of ìPublic Authorityî for the purposes of this Act. The Court held the
phrase ìand includesî in Section 2(h)(d) (i) would apparently indicate that the body
are to be constituted under, or established by a notification, issued by the appropriate
Government.

8 Section 2(h)(d)(i)
9 Ibid
10 Section 2 (h)(d) (i)
11 Paragraph 76
12 (WP)(C) No. 876/2007

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Vitasta Law Journal, Vol.3 No.3, 2017
The Court then added that
[I]f, indeed, such were the intention, sub clause (i) is a surplusage, since
the body would have to be one of self-government, substantially financed, and
constituted by a notification, issued by the appropriate government. Secondly ñ
perhaps more importantly, it would be highly anomalous to expect a ënon-government
organisationí to be constituted or established by or under a notification issued by the
Government. These two internal indications actually have the effect of extending
the scope of the definition ìpublic authorityî; it is, thus, not necessary that the
institutions falling under the inclusive part have to be constituted, or established
under a notificationissued in that regard irrespsective of the constitution (i.e. it
might not beunder or by a notification), if there was substantial financing, by the
appropriate government, and ownership or control, the body is deemed to be a
public authority. This definition would comprehend societies, cooperative societies,
trusts and other institutions where there is control, ownership, (of the appropriate
government) or substantial financing.The second class, i.e., non-government
organisation, by its description, is such as cannot be ìconstitutedî or ìestablishedî
by or under a statute or notificationî13
IV. Analysis of the Decision
It is relevant to note that the judgment mentions ìother institutionsî; but can political
parties be said to be included in the expression ìother institutionsî? The
Representation of People Act defines Political Parties before registration as ìan
association or body of individual citizens calling itself a political party.î14 Subsequent
to the registration, the ìassociation or bodyî ceases to exist as such association or
body and becomes a ìpolitical partyî on which certain rights and duties are cast by
the Act.15 Thus, it is doubtful whether such a party would constitute as an ìInstitutionî
referred to in the above judgment and consequently be a public authority under the
provisions of this Act.
Another point which the Commission seems to have ignored is that the
principle of Surplusage is applicable only for according meaning to a phrase which
is not clear; however this cannot be done to supply a Casus Omisus in derogation of
the spirit of the Legislature16. The Central Information Commission in this case has
assumed that the Legislature intended to include political parties within the definition
of Public Authorities.
In M. Baga Reddy vs Sonia Gandhi And Others17 The Andhra Pradesh
High Court while dismissing a writ seeking mandamus against the Indian National
13 Ibid
14 Representation of People Act of 1951, Section 29A
15 V Venkatsan , ìHow the CIC missed the woods for the Treesî, http://
lawandotherthings.blogspot.in/2017/06/how-cic-missed-wood-for-trees.html last
accessed August 25, 2017 8PM
16 (Daddi Jagannatham v. Jammulu Ramulu (2001) 7 SCC 71
17 2001 (3) ALD 636

Subhash Chandra Aggarwal v Parliament of India: A Manifestation of CICíActivist Streak

Congress held that the mere fact that certain powers are given to a political party
under Tenth Schedule of the Constitution does not elevate the political parties to a
Constitutional status. Neither do these parties perform any sovereign functions.The
court observed that so far as internal matters of a political party are concerned the
same have nothing to do with Constitutional functions. The affairs of the party may
although relate to public in general its internal affairs would be treated to be a
private affair. The Courts cannot intermeddle therewith nor for that matter a writ of
mandamus can issue..

Another question which arises for consideration is if the legislature had
intended to include Political Parties in the definition of the Right to Information Act,
2005, why was no provision made in the Act? Neither the preamble of the Act nor
the Statement of Objects and Reasons gives any indication to this effect. Similarly,
there was no mention of the same either in the Freedom of Information Act, 2002
or the Right to Information Bill, 200418. If reference is made to the debates that
transpired during the passage of this Bill in the Rajya Sabha19 and Lok Sabha 20 it
can be seen that not even a draft proposal was made nor was any amendment
suggested to include Political Parties in the definition of ìPublic Authoritiesî

This interpretation was presumably adopted to make Political Parties
ìaccountableî. However, the Central Information Commission seems to have ignored
the fact, that a quasi judicial or a judicial body is not allowed to supply a casus
omissus. Further, ìif a statutory provision is open to more than one interpretation,
the court has to choose that interpretation which represents the true intention of the
legislature.î21 Also, it is a settled rule of interpretation that a statute is to be read as
a whole and not in isolation. A careful perusal of the statute leads to an indication
that there was no intention on the part of the legislature to include political parties
within the definition of ëpublic authoritiesí. For instance, Section 8 and Section 9
contain provisions for exempting certain information from disclosure, however, intra
party strategic decisions are not included in the grounds mentioned in these sections.
Similarly, under Section 20, a provision has been made wherein the Central
Information Commission can recommend action under the service rules against the

18 The Right to Information Bill, 2004 defined ìpublic authorityî as any authority or
body constituted by the Constitution, Parliament, or notification/order by
Government. The current definition was adopted on the suggestion of the National
Advisory Council to include Panchayats and other Local Authorities. There is little to
suggest that the Legislature intended to include political parties.

19 “Discussionon theRightto Information Billî,RajyaSabhaAvailableat http://
164.100.47.132/LssNew/psearch/result14.aspx?dbsl=23512017 last accessed
October 25, 2017 9:00 PM

20 ìDiscussion on the Right to Information Billî, Lok Sabha, Available at http://
www.indiankanoon.org/doc/1986213/ October 25, 20179:30 PM

21 Venkataswami Naidu,R v. Narasaram Naraindas, AIR 1966 SC 361, p.363

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Public Information Officers who are repeated defaulterss22. Clearly, this provision
is not applicable to a political party.

The Commission also held that since Political Parties perform public functions
and are hence liable to be treated as ìPublic Authoritiesî. It is relevant to quote the
observations of Halsburyís Law of England

A public authority may be described as a person or
administrative body entrusted with functions to perform
for the benefit of the public and not for private profit.
Not every such person or body is expressly defined as
a public authority or body, and the meaning of a public
authority or body may vary according to the statutory
context.23

Every authority which performs a public function can not be said to be a
public authority, the nature of the authority depends upon the definition provided to
it in the relevant statute. Section 2(h) of the Act makes no provision for a ëPublic
Functions Testí to determine whether a said authority is a public authority or not.24
Thus, the performance of a public function is not an aspect that should have been
considered by the Commission to hold political parties as public authorities. It seems
to have supplied a casus by reading a public functions test into the definition of a
public authority.

Conclusion

This decision again reiterates the need for the Quasi Judicial and Judicial
Authorities to desist from the temptation of supplying casus omissus. It is surprising
that the Commission went beyond the legislative intent to include Political Parties
within the ambit of the RTI Act. With the presence of a dual regulatory mechanism
in the form of the Election Commission and the Income Tax Department already in
place there is hardly any need to choke the political parties by making them subject
to RTI Act.

22 Section 20 (2)
23 Halsburyís Laws of England, Vol. 1, 9-10 (4th Ed.),
23 Anirudh Burman, Transparency and Political Parties- Finding the Right Instruments
24 ëEconomic and Political Weekly, July 13 2017 at 26.

156


BALDEV SINGH & ORS VS STATE OF PUNJAB: An
Unusual Decision

MS. ALOK SHARMA*

ìOne cool Judgment is worth a thousand basty councils. The thing to do is to
supply light and not heat.î
Woodrow Wilson.

INTRODUCTION:

The Honíble Supreme Court of India, in Baldev Singh & Ors vs. State of
Punjab1, a gang-rape case, by passing an unusual order allowed compounding in a
case of non-compoundable offence. The Honíble Bench, comprising of Honíble
Justice Markandeya Katju and Honíble Justice Gyan Sudha Mishra (the only
woman judge in the Supreme Court of India at that time), has reduced the 10 year
sentence (minimum for this offence) to 3Ω years (already undergone), and has let
off three gang-rapists Baldev Singh, Gurmail Singh and Hardeep Singh with
fine of Rs. 50,000/-each after the rapists reached a ëcompromising-formulaí
with the victim to drop the case. It has been stated that both the convicts and the
victim want to bring an end to the case as they were all now married and leading
their respective lives. The plea of the rapists was that it was more than 14-15 years
ago, when the incident had occurred. Now the question arises that how the apex
Court allowed a compromise in a gang rape case which is non-compoundable as
per law.

Facts of the Case:

In the present case, the appeal has been filed by the appellants/convicts
against the impugned judgment of the High Court of Punjab & Haryana at
Chandigarh. The prosecution case is that on 03.03.1997 at about 6.30 A.M. the
prosecutrix was coming to her house after answering the call of nature. The three
appellants caught her and took her into a house where they raped her and also beat
her. After police investigation the appellants were charge sheeted and after a trial
were convicted under then Section 376 (2) (g)2and Section 3423of the Indian

*Assistant Professor, Law Centre I, Faculty of Law, University of Delhi, Delhi-7.

1AIR 2011 SC 1231.

2 Section 376(2)(g): whoever commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years but which may be for life
and shall also be liable to fine. Provided that the court may, for adequate and special
reasons to be mentioned in the judgment impose a sentence of imprisonment of either
description for a term of less than ten years.

3 Section 342: Punishment for wrongful confinement ñ Whoever wrongfully confines any
person shall be punished with imprisonment of either description of a term which may
extend to one year, or with the fine which may extend to one thousand of rupees or both.

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Penal Code, 1860 (hereinafter referred to as Penal Code). They were sentenced
by the trial court to 10 years Rigorous Imprisonment and a fine of Rs. 1,000/-each.
The sentence was upheld by the High Court, and hence the appeal was filed in the
Supreme Court.4

Impact of Rape

The very act of rape of a woman by a man is outrageous, inhuman and
derogatory. The effect and consequences of rape are so deplorable that it shatters
the confidence and faith not only of the victim but also of the society as a whole.
Rape is the only crime in which the victim faces more degradation and social
unacceptability and is often described with phrases as ìDeathless Shameî or ìLiving
Death.î5 It not only victimizes her, but also leaves a life-long stigma on her character
and dignity causing her and her relatives hard pain and agony.6

Decsion of the Case

The Honíble Supreme Court has admitted that the appellants have already
undergone, about three and half years imprisonment each. The incident is 14 years
old. The appellants and the prosecutrix are married (not to each other). The
prosecutrix has also two children. An application and affidavit has been filed before
the Court stating that the parties want to finish the dispute, have entered into a
compromise on 01.09.2007 and that the accused may be acquitted and now there is
no misunderstanding between them.7

The Court further has held that Section 376 is a non compoundable
offence. However, the fact that the incident is an old one, is a circumstance for
invoking the proviso to Section 376(2)(g) and awarding a sentence less than 10
years, which is ordinarily the minimum sentence under that provision, as the Court
thinks that there are adequate and special reasons for doing so.8On the facts of the
case, considering that the incident happened in the year 1997 and that the parties
have themselves entered into a compromise, the Honíble Court upheld the conviction
of the appellant but reduced the sentence to the period of sentence already undergone
in view of the proviso to Section 376(2)(g) which for adequate and special reasons
permits imposition of a lesser sentence. However, the Court directs that each of the
appellant will pay a sum of Rupees 50,000/-by way of enhancement of fine to the
victim envisaged under Section 376 of the Penal Code itself. The fine shall be paid

4 Supra note 1, para 3 at p. 1231.
5 Anand A.S. ìDynamics of Gender Justice: Crimes against Women,î Justice for Women

concerns and expressions, Universal Law Publishing Co. Pvt. Ltd. 2002 at p. 19.
6 Ibid.
7 Supra note 1, para 4 at pp. 1231-1232.
8 Id. para 5 at p. 1232.

158


BALDEV SINGH & ORS VS STATE OF PUNJAB: AN UNUSUAL DECISION

within three months from the date of judgment. In the event of failure to pay the
enhanced amount of fine it will be recovered as arrears of land revenue and will be
given to the victim.9

Analysis of Judgment

The Indian judiciary shoulders a great responsibility. The combined effect
of the various guidelines given by the courts in various cases of rape10 has changed
the social, executive, legislative and judicial approach towards the rape victims.
The judiciary plays an extremely important role in recognition of the rights of the
rape victims. After making this observation, I would like to analyze the present
case.

A Murderer kills the person but a rapist kills the soul of the victim. Rape is
not only a sexual offence but also the offence of violence against victim in which
the victim also suffers from stigma. Hence for a crime as serious as rape wherein
people demand that there should be capital punishment, with a judgment like the
present one, it is humbly submitted, that the Honíble Supreme Court has not set a
good precedent for the society. Although every case is different and is decided by
the courts by taking into account its peculiar facts and circumstances. Hence the
present judgment may be just a one off decision turning on its own peculiar facts,
but since this is a Division Bench judgment, it can also set a precedent which will
open up a floodgate of similar petitions in rape cases and also in other type of non-
compoundable offences to start getting compounded as well.

For example in Navdeep Singh Shappy and Others vs. State of Punjab
and Others,11 the petitioner filed a petition under Section 482 of the Code of Criminal

9 Ibid. para 6.

10 Rameshwar vs. State of Rajasthan, AIR 1952 SC 54; Rao Harnarain Singh vs. State of
Punjab, (1958) CrLJ 563; Pramod Mahto vs. State of Bihar, AIR 1989SC 1475; State of
Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; P. Rathinam vs.
State of Gujarat, 1993 (2) SCALE 631; Delhi Domestic Working Womenís Forum vs. Union
of India, (1995) 1 SCC 14; Stateof Punjab vs. Gurmit Singh, AIR1996 SC 1393; (1996) 2 SCC
272; Bodhisatiwa Gautam vs. Subhra Chakraborty, (1996) 1 SCC 490; State of Andhra
Pradesh vs. Gangula Satya Murthy, AIR 1997 SC 1588; Chairman, Railway Board vs.
Chandrima Das, AIR 2000 SC 988; State of Orissa vs. Thakara Besra & Anr., AIR 2002 SC
1963;Sakshi vs. Union of India & Ors, 2004 [2] JCC 892;AIR 2004 SC 3566; State of U.P.
vs. Pappu @Yunus & Anr, AIR 2005 SC 1248; Santhosh Moolya & anr vs. State of
Karnataka, (2010) 5SCC 2445; Wahid Khan vs. State of Madhya Pradesh, (2010) 2 SCC 9;
etc.

11 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.No.M-30692 of 2012
(O&M), Date of decision :.10.4 .2017, http:// www.indiankanoon.org/doc
48452957/ dated 07.05.13.

159


Vitasta Law Journal, Vol.3 No.3, 2017

Procedure, 1973 for quashing of FIR registered under Sections 363, 366-A, 376,
120-B of the IPC and all the subsequent proceedings arising there from in view of
the compromise arrived at between the parties in rape case. The parties were
directed to appear before the trial court for recording their statements with regard
to compromise and the trial Court was directed to record their statements and
submit its report qua the genuineness of the compromise effected between the
parties. In pursuance to the said order, the trial Court, after recording the statements
of the parties, has submitted its report that the compromise effected between the
parties is voluntary and without any pressure. Respondent No.3 (victim) has
performed marriage with petitioner No.1 (accused). They have been blessed with
a child out of the said wedlock. Now the parties have amicably settled their dispute.

The court after referring the Full Bench judgment of Punjab and Haryana
High Court in Kulwinder Singh and others vs. State of Punjab and another12and
judgment of the Apex Court in Gian Singh vs. State of Punjab & anr13, held that
since respondent No.3, daughter of respondent No.2 (complainant) had performed
marriage with petitioner No.1 and presently the couple was residing together as
husband and wife, no useful purpose would be served in allowing the criminal
proceedings to continue. Even otherwise the parties had amicably settled their dispute.
Accordingly, FIR and all the subsequent proceedings arising there from are quashed.
Therefore, I can say that the trend has already been set and we do not know where
it will stop despite the judgment of the Supreme Court in Gian Singhís case where
it has specifically prohibited ërapeí and other heinous offences to be compounded/
quashed.14

The concept of compromise is not new to rape cases and is most often
expressed through the Law of Evidence where witnesses turn hostile. This indirect
compromise is in fact part of a community consensus, of which the court is witness,
but unable or even unwilling to act upon. Being a non-compoundable offence,
compromise in rape cases has been confined to the dark recesses of court corridors
and private places and bargains between community elders, victimsí kin mostly
males, local authorities, and the police, with judges turning the other way for the
most part, when witnesses turn hostile. Blood money changes hands and all is
forgotten by all except the victim as she had suffered but the interesting fact is that
she does not count anyway. Victimís own trauma at the assault and her experience
of violence, humiliation, injury and hurt find no place in the public imagination. The
saving grace so far has been that the court has been bound by the law that prohibits
direct compounding of a rape case.

12 (2007)4CTC769;2007(3)RCR(Criminal)1052.
13 (2012) 10 SCC 303; JT 2012 (9) SC 426.

14 Emphasis supplied.

160


161
But in the present case the Supreme Court of India removed this one slim
guarantee ñ not in the spirit of constitutional morality, but in the spirit of ìpublic
moralityî. The Supreme Court in all its wisdom knows and acknowledges that
rape is a non-compoundable offence and in previous decisions the same judge,
Justice Katju15, and also the present Bench16 has expressed their concerns about
misuse of this power but ironically they themselves have allowed the compounding/
quashing in a rape case and given that the parties have entered in a compromise, it
reduced the sentence.17 When a constitutional court feels and implies that rape is a
ëdisputeí between the contending parties; that conviction need not result in
punishment, that blood money is a good substitute; and that rape can be washed
away as a misunderstanding then the struggle of decades to bring justice and a
sense of constitutional morality in the public domain especially for women, have
been ripped apart by this single judgment.
An offence under the Penal Code is an offence against State, means against
society and not only against aggrieved individual or complainant. Hence a number
of questions arise in the present case for example the question, compromise between
whom? Whether convicts are entitled to compromise a non-compoundable case
when they were under an obligation to serve the sentence? In what capacity a
victim can compromise a non-compoundable case without the involvement of the
Court/State? Under what circumstances the victim is actually compromising the
case meaning thereby the absence or the presence of coercion, undue influence or
fraud etc. on the victim? The present decision does not provide any of these answers
as the Honíble Court did not try to find out the real circumstances under which the
compromise took place but it only mentioned that the rapists reached a
ëcompromising-formulaí with the victim to drop the case as the parties wanted to
finish the dispute and that the accused might be acquitted and now there was no
misunderstanding between them. This reasoning seems to be absurd and should not
be accepted in the cases like the present one as it is a criminal case and not a civil
case or a civil-type criminal case where generally compromises and compensation/
damages are allowed. It is humbly submitted that the present decision can now
open the doors wide open to such conduct where one can literally get away with a
crime.
Now-a-days when mediation and alternate dispute resolution are in vogue,
offences against the State should still stand out as an exception to that as they are
the crimes against society, shock the very conscience of society and are against the
social fabric protecting the dignity of a woman. Rape and in particular gang-rape
15 Manoj Sharma vs. State and others, (2008) 16 SCC 1.
16 Gian Singh vs. State of Punjab & anr, (2012) 10 SCC 303; JT 2012 (9) SC 426.
17 Emphasis supplied.
BALDEV SINGH & ORS VS STATE OF PUNJAB: AN UNUSUAL DECISION

Vitasta Law Journal, Vol.3 No.3, 2017

where conviction is proved beyond doubt (in the present case there is a concurrent
finding of conviction by both the courts below) stand on this pedestal. An inroad into
this concept of an offence against society has been made by the introduction of the
concept of plea bargaining18 on 11th January 2006 in Chapter XXIA of the Code of
Criminal Procedure, 1973. However, there are certain exceptions in the nature of
offences and enactments affecting the socio-economic conditions of the country or
those against women or children where plea bargaining is specifically excluded.19
Hence, offences of the nature of gang rape, culpable homicide/murder are not
offences which are open to plea bargaining and are also not compoundable
offences.20 Even none of the judgments21allowed quashing/compounding of rape
cases by the judiciary rather they have expressly excluded rape from the category
of offences which can be quashed by the High Court by exercising its inherent
powers.22

Now come to aspect of compromise. The compulsions on the victim to
compromise the case can be many. The consent might be a vitiated one as such
compromise gives an idea of some constraint upon her; maybe there was some
threat to attack the victim or her family members or some other kind of threats or
coercion or some undue influence or fraud or some other kinds of prohibited tactics
like pressure on the victim to compromise for money or for some other reasons.
Money is a powerful tool however no amount of money can ever give back the
dignity of the victim of rape and all that she had suffered. Using a so called
ëcompromise formulaí with the victim and letting go off the criminals after imposing
fine of Rs. 50,000/-each (total Rs. 1, 50,000/-) is almost like ascertaining value of
the Rape. But the question is whether this much of pecuniary punishment will check
such crimes in our society as one of the purposes of the criminal law is deterrence?
It is humbly submitted that the highest court of justice could have done something
better. There is no scope of compromise in such a heinous, non compoundable
offence. All trespasses are bad and if it is a trespass on human being it is the worst.
If such acts are allowed to be compromised without the involvement of the state it
will create dangerous situations.

Although most of the cases go unreported in our country due to various
factors, stigma being the prominent one, India is ranked in the top 5 countries for

18 The Criminal Law Amendment Act, 2005 (Act 2 of 2006).

19 Section 265-A(1) of the Code of Criminal Procedure, 1973.

20 Section 320, the Code of Criminal Procedure, 1973.

21 Gian Singh vs. State of Punjab & anr, (2012) 10 SCC 303 and Kulwinder Singh and
others vs. State of Punjab and another (2007) 4 CTC 769 etc..

22 Emphasis supplied.

162


BALDEV SINGH & ORS VS STATE OF PUNJAB: AN UNUSUAL DECISION

rape and sexual assault. What will be the impact of the present decision, will it
serve as a deterrent in these types of cases? Crimes against women are showing
an upward trend. According to a Report,23an increasing trend in cases of rape has
been observed during 2007-2008. A mixed trend in incidence of rape has been
observed during 2008 ñ 2011. These cases have reported an increase of 7.2% in
2007 over 2006, an increase of 3.5% in 2008 over 2007, a decline of 0.3% in 2009
over 2008, an increase of 3.6% in 2010 over 2009 and further an increase of 9.2%in
the year 2011 over the year 2010.24There were 24,270 victims of rape out of 24,206
reported rape cases in the country. 10.6% (2,582) of the total victims of rape were
girls under 14 years of age, while 19.0% (4,646 victims) were teenage girls (14-18
years). 54.7% (13,264 victims) were women in the age-group 18-30 years. 3,637
victims (15.0%) were in the age-group of 30-50 years while 0.6% (141) was over
50 years of age.25 The trend is alarming, and shows in what direction our society is
drifting as regards the inhuman attitude of men towards women.

This judgment is indeed appalling especially since it is contrary to the intention
of the legislature. In the Penal Code only maximum punishment is prescribed for
the majority of offences. Therefore, there must be a rationale behind providing a
ìminimumî penalty for any offence and if that can be reduced as per the discretion
of the court (by not applying the guidelines for the same), then what is the purpose
of law made by the State providing statutory penalties. Has the Court created a
loophole for rape perpetrators? The Honíble Court cannot go against statutory
mandate. According to the then Section 376(2) the minimum punishment in gang
rape shall not be less than 10 years but may extend to life imprisonment with or
without fine provided that the court may for adequate and special reasons in the
judgment impose a term less than 10 years. There can be no grievances in awarding
compensation to a victim of rape but unless there are such exceptional circumstances
that warrant a sentence less than 10 years, it must not have been reduced as the
message to society in reducing punishment would have far-reaching and demoralizing
consequences.

In the present case there were two concurrent findings of the Sessions
Court and the High Court upholding the conviction of gang rape. Unless there were
special circumstances carved out in the judgment, the said minimum punishment as
born out of the legislation is mandatory. It is humbly submitted that there is no
reason to say that because they have already undergone a punishment for 3Ω
years, a lot of time i.e. 14-15 years have passed after the date of incident and the
victim and accused persons are leading a happy married life (not to each other)

23 Crime in India 2011, at p.79, published by National Crime Records Bureau,

Ministry of Home Affairs, Government of India.
24 Id. at p. 83.
25 Ibid.

163


Vitasta Law Journal, Vol.3 No.3, 2017

having children, they should be freed from the severe punishment of minimum 10
yrs. Clearly these can never be the adequate and special reasons which arecontemplated by the legislature. They have undergone imprisonment for a period of3Ω years which is only 1/3rd of the minimum punishment for the offence whichthey have committed. So it is not a substantial period of imprisonment for a heinouscrime. Further as far as time taken in trial or appeal etc is concerned it is usual andvery common in India. If it is to be accepted as a mitigating factor then it can beraised in so many cases making the purpose of punishment fruitless. In the sameway solemnization of marriage of the victim and having two children is no mitigatingcircumstance as the fact of marriage and having children is very common in thesetypes of cases. It is humbly submitted that this type of reasoning can be misused in
so many cases.

It is submitted that in 1997 Sakshi, a voluntary organization, through a
Public Interest Litigation petition,26approached the Supreme Court of India with aplea for broadening the interpretation of ërapeí to include all forms of penetration.
But the Honíble Supreme Court has refused to accept that plea on a number ofgrounds including that a statute enacting an offence or imposing a penalty is strictlyconstrued.27 It is permissible for the Court to expand or enlarge the meaning ofprovisions of Procedural law but not provisions of the Substantive law. 28

In the present case, however, the Court gave the unusual interpretation tothe phrase ëadequate and special reasons,í of substantive law. In the light of Sakshi
case how the court is justified in interpreting a phrase of substantive law in a mannerto frustrate the whole purpose of the law itself. It should not be allowed. With alldue respect to the judges, it does not appear to be in conformity of the substantivelaw on rape. It can be observed that law on rape could have been interpreted
progressively if the judiciary sowished. TheApex Court did not do soin thepresent

case.

Conclusion

From Mathura29 to Vishaka30 and till date, the Supreme Court has traveled
from an extreme black letter law position to a liberal and victim sensitive legal
position. The Supreme Court and the High Courts have played a significant role in
protecting the rights of the victims of rape. Much, more needs to be done. In fact,
what has been achieved is little as compared to what needs to be achieved. The
cases on rape continue to reflect male chauvinism of the lawyers, judges and police
officers. We hope that the forward looking ideas reflected in some decisions of the
Supreme Court will continue and it should not adopt the approach which it has
adopted in the present case.

26 Sakshi vs. Union of India and others, 2004 (2) JCC 892; AIR 2004 SC 3566.
27 Id. at p. 904.
28 Id. at p. 905.
29 Tukaram vs. State of Maharashtra, (1979) 2 SCC 143.
30 Vishaka vs. State of Rajasthan, AIR 1997 SC 3011.

164


VLJ

2017

VITASTASCHOOL OF LAW
AND HUMANITIES

Pohru Crossing, Nowgam By-Pass Srinagar-190015

Affiliated to the University of Kashmir
Approved by the Bar Council of India

VOL. 3 NO: 3 ISSN 2277-5234


Cite this volume as: 3 VLJ (2017)

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With Best Compliments From

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VITASTA LAW JOURNAL

Patron

Prof. Dr. TalatAhmad

Vice Chancellor
University of Kashmir

Editor

Prof. Dr. Ali Mohammad Matta

Principal Vitasta School of Law & Humanities

Editorial Board

Rakib Ahmad Zia
Fatima Shah

The editor, publisher and printer do not own any responsibility for
the views expressed by the contributors and for the errors, if any,
contained in this journal.


PRESIDENT PRESIDENT
MESSAGE

It gives meimmensepleasure to conveythat your Journal
ìVitasta law journalî is a self contained piece of high caliber
legalliteraturewhich it had to be under stewardship ofthe mature
legalmind that you are.

I hope andpraythat the Journalwould continue touching
new heights and become a source of light and information for
the legalfraternity.
I assure of my best co-operation.

With best regards.


EDITORIAL

The faculty ofVitasta School of Law and Humanities experiences great
pleasure and satisfactionfor having successfullyaccomplished the publication of
the third consecutive issue of Vitasta law journal (VLJ) 2017. It is our earnest
desire to keep this forum available for sincere, unbiased and dedicated researchers
to havetheirresearchfindingsbrought to light throughVLJ. Inthepresentissue
of VLJ some vital topics of great socio-legal relevance have been discussed,
which include judicial review and administrative discretion; efforts made at the
internationallevel for preventing exploitation and abuse ofchildren; the honouring
of legitimate expectations as a growing concept; securing the recoveryof money
by the banks from the defaulting borrowers through Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
(SARFAESI)Act2002 andits applicationto the state ofJammu and Kashmir;
the analyses ofthe strict interpretationput bythe supreme court onthe requirement
ofëinventioníforthepurposeofpatentabilityoftheproduct, whichhasgivena
sigh ofrelief for millions ofpatients across the globe who will have easyaccess to
life saving drugs.

It is heartening to find young and budding researchers showing greater
interest and enthusiasm for purposeful research in areas of social relevance for
which they shallfind VLJ always prepared to encourage them.

Wewelcomehealthyand positivecommentsand suggestionsfromour
esteemed readers, which shall be of great help for further improvement of the
journal.

Prof. Dr.AliMohammadMatta
(Principal)


CONTENTS

S.
No. PARTICULARS Page No.
ARTICLES

Position of Legitimate Expectation: A Comparative Study
Supreme Court Sagacity to Novartis: A Blow on Corporate Pride
and Boon to the Indian Pharmaceutical Sector Mir Farhatul Aen
Mir JunaidAlam
MohammadYounis Bhat
Judicial overreach and doctrine of separation of powers: An
Overview Ali Mohammad Matta
FatimaShah
Protection of Childrenís Rights:An Overview of International Legal
Framework ShabinaArfat
Beauty Banday
Seemeen Muzafar,
AltafAhmad Mir
SARFAESI Act and its Application to the State of Jammu &
Kashmir: Problems and Perspective
Showkat Hussain
Definition of ìIndustryî under Industrial Disputes Act: A critical
study of conceptual Conundrum in its Exposition
RubinaIqbal Ganai
Faizan I Nazar
The Right to Information Act, 2005 and its Implementation in
India: An Analysis Dr.ZubairAhmadKhan
Hina Varshney
Patent Amendments in India in the Light of Trips
Junaid Nazir
The Second Generation of Human Rights: A discussion about
their Enforceability
ShahidA. Ronga
The Police or welfare State Jammu and Kashmir Police Bill
2017
AltafAhmad
Study of Regime of IPR and Completion Law
Bhanu Pratap
1
2
3
4
5
6
7
8
9
10
11
01
22
33
47
64
75
91
102
114
132
142

NOTES AND COMMENTS
Subhash Chandra Aggarwal v. Parliament of India: A Manifestation
of CICís Activist Streak
Siddharth Mehta
BALDEV SINGH & ORS VS STATE OF PUNJAB: AN
UNUSUALDECISION
Alok Sharma
1
2
151
157
NOTES AND COMMENTS
Subhash Chandra Aggarwal v. Parliament of India: A Manifestation
of CICís Activist Streak
Siddharth Mehta
BALDEV SINGH & ORS VS STATE OF PUNJAB: AN
UNUSUALDECISION
Alok Sharma
1
2
151
157

FACULTY PROFILE
VITASTA SCHOOL OF LAW & HUMANITIES

S.
No
Name of the Teacher Qualification Designation Area of Specialization
Prof. Dr. A. M. Matta
Mr. Rakib Ahmad Zia
Mrs. Saheana Shafi
Miss. Sabah Bashir
Mrs. Humera Rahman
Miss. Nuzhat Wani
Miss. Sheeba Ahad
Miss. Fatima Shah
Miss. Umara Yaseen
Mr. Umar Rather
Mr. Junaid Nazir
Mr. Shahid Ronga
Ph.D. (KU)
M.A., B.Ed
M. Phil (KU)
M.A, B. Ed.
M. Phil (KU)
B. Sc. M.A.
B.Ed (KU)
LL. M (KU)
LL. M (KU)
LL. M (Amity)
LL. M (KU)
LL. M (KUR)
LL. M (KU)
LL. M (KU)
LL.M (London)
Principal
Assistant
Professor
Assistant
Professor
Assistant
Professor
Assistant
Professor
Assistant
Professor
Assistant
Professor
Assistant
Professor
Assistant
Professor
Guest
Faculty
Guest
Faculty
Business Laws,
Taxation,Jurisprudence,
K a s h m i r P o l i t i c s ,
International Relations
Micro-Economics
English Literature
Commercial Laws
Commercial Laws
Commercial Laws
Constitutional Law
Commercial Laws
Business Laws
Constitutional Law
Commercial Laws
Advocate
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Faculty
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Faculty

CALL FOR PAPERS
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The editors, publishers and printers do not own any responsibility for the
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Vitasta Law Journal

Place of Publication:
VITASTASCHOOLOFLAWAND HUMANITIES
Pohru Crossing, Nowgam By-Pass

Srinagar-190015, Kashmir
Publisher: Prof. Dr.Ali Mohammad Matta
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