Wednesday, October 20, 2010
On a fateful day the constituent assembly of India was established with the objective of drafting a constitution for India. The minutes of the assembly have been efficiently structured and preserved in twelve volumes. It was not until very recently that I realized, after perusing through the volumes, that none of the members of this assembly were below the age group of fifty. I wonder this document is nothing more than bric-a-brac for the youths in India. I will not draw more fresh blood from the old wounds but surely I will not refrain myself from pondering about the future. In our present constitutional scheme we have a minimum age criterion set for our parliamentarians. For the upper house the said criteria is fixed at 35 years of age and for the lower house it has been fixed at 25 years of age. With keen interest I went through the profile of the all present parliamentarians and to my annoyance only a few of them were below 30 years of age. This figure is very less especially for a country which has more than half of its population less than the same age group. If our country intends to feature among the other advanced nation of international community then the “I” in INDIA i.e. the youth has to take to politics. The recent “women empowerment” would have reverberated much better waves of sound if it was pronounced as “women youth empowerment”. We should introduce reservation on the basis of age and not on caste. The latter being barred by few constitutional provisions and the former has no such limitation attached to it. The schematic of Indian politics needs a renovation and this can achieved by attaching the chandeliers of youth in the Indian parliament. If reservation can be the means to uplift the backward class, it can also pave way for Youth-nesia in Indian polity.
Monday, October 18, 2010
The fate of female partner in a live-in relationship, though presently at the crossroads and in intersection with the institution of marriage, has been shown a ‘yellow light’ by a divisional bench of Supreme Court in its latest decision in Chanmuniya v. Virendra Kumar Singh Kushwaha & Ors, wherein the Court has requested the Chief Justice of India to refer three contentious questions of law to be decided by a larger bench. The most important question among them is that whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
In the present case, the Appellant, after the death of her husband, had married to his younger brother (the first respondent) as per the alleged customs and usages (viz. Katha and Sindur) prevalent in the Kushwaha community in 1996. They both lived together and fulfilled all the marital obligations toward each other till the time when the husband starting torturing her which was followed by refusal to maintain her and fulfill the marital obligations. The High Court held that there was no valid marriage as the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, 1955 had not been performed between them and thus it held that the first respondent was not the husband of the appellant. Aggrieved by this, the appellant brought the matter to the Supreme Court wherein the Court was once again cropped with the question whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.
To clear the grey clouds around the interpretation of word ‘wife’ as given in section 125 of Cr.P.C, the Court referred to the catena of cases decided by House of Lords, Privy Council and Supreme Court and categorically remarked that “the man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.” The Court being conscious to the probable sufferings of the female partner in such relationships remarked that a broad view needs to be taken to interpret the word wife in this section, nevertheless, the Court also took note of the fact that sitting in a two-Judge Bench, they cannottake a view contrary to the views expressed in the Yamunabai Anantrao Case and Savitaben Bhatiya Case wherein the Court held that the wife means legally wedded wife.
The author, although satisfied by the concerns of the Hon’ble Court, is conscious as to the approach taken up by the Court to interpret the law on this point. It is humbly submitted that the Court should be careful when it uses phrases like presumption of a valid marriage. I had earliest opportunity to discuss the ramifications of such terminology in a recent decision of the Apex Court with my classmates during our Family Law class discussions. A valid marriage as per HMA not only requires fulfillment of essentials as provided under section 5 but also the essential ceremonies as provided under section 7. When the Court makes presumption of a valid marriage, the author believes that the Court looks at section 5 in isolation and completely ignores the other collary essentials. The question which still remains unsolved and unresolved is that – is such presumption is in strict compliance with the fulfillment of requirements of a valid marriage. Moreover, this legal fiction of validity of a marriage would defeat the purpose of the HMA wherein the Parliament has clearly provided a set of requirements which are necessarily to be fulfilled by the parties to the marriage. The Court has reached the right conclusion but still the reasoning employed by the Court contradicts the status of women as wife in HMA. Though the female partner is protected and covered under the ambit of Domestic Violence Act, 2005, yet, notwithstanding the current case law development, there is still a long journey ahead. It is a difficult task for the Supreme Court to arrive at a conclusive decision on this yet the hopes of many couples living in such relationships are attached with this referral.
Sunday, October 10, 2010
Saturday, September 11, 2010
Friday, September 10, 2010
Wednesday, September 8, 2010
Since I am immensely intimidated by the preceding posts, that speak of a plethora of national and international issues, I shall turn homeward and talk about something that has not only moved me legally (read: superficially) but also psychologically.
The Ragging Scandal, yes (Words have been randomly italicized to give it the sense of importance it is actually receiving).
Legally, my knowledge on ragging is close to nada. All I know is that following a Supreme Court order, a Committee presided by Dr. Raghavan who was, as far as my knowledge goes, an ex-CBI director. This initiative was taken by the Ministry of Human Resources Development (MHRD). There was also a landmark decision by the SC on the issue. Both the Committee report and the judgment have been sent to us following the scandal. I have chosen to write this post instead of reading up the documents (but does that make this post less relevant?).
According to the Apex Court in the ‘Vishwa Jagriti Mission’ matter, ragging is -
“Any disorderly conduct whether by words spoken or written or by an act which has the effect of teasing, treating or handling with rudeness any other student, indulging in rowdy or undisciplined activities which causes or is likely to cause annoyance, hardship or psychological harm or to raise fear or apprehension thereof in a fresher or a junior student or asking the students to do any act or perform something which such student will not in the ordinary course and which has the effect of causing or generating a sense of shame or embarrassment so as to adversely affect the physique or psyche of a fresher or a junior student.”
Now if we apply this definition to the incident that occurred, there wouldn't be an ounce of teasing, treating or handling with rudeness, indulging in undisciplined activities or causing anything that may be attributed to feelings of fear, annoyance, hardship or psychological trauma. The incident allegedly involved a group of seniors participating in what the courts/ university authority would describe as ragging but I shall refer to as a breaking-the-ice with a few freshers. What this consisted of was something like an introductory, friendly chitchat. Allegations involve, treating these freshers badly, using derogatory language and gestures (Is bowing down even a derogratory gesture? We were made to do it during our orientation with our seniors when our old faculty was present), and taking videos of the freshers' dancing.
According to the authority, an introduction (asking names, place of residence, hobbies and the like) is mental trauma. Reader dear, pray, do you get cold feet when someone asks you your name, or do you develop a chronic form of PTSD when you are asked about your hobbies?
Now, I'll tell you what isn't mental trauma. Being eve-teased in front of the hostel (that was eons away from civilization and was situated in the most unsafe and isolated campus) and being blamed for inviting eve-teasers and bringing eve-teasing upon myself (by the warden) was not mental trauma. The high-handedness of the administration is preposterous. They are making a mountain of a molehill right now, but when there were several security issues concerning the girls, our pleas fell on deaf ears.
Moreover, whatever happened to the Rule of Law? Has audi alteram partem gone for a toss? They have heard out only just one party and already passed judgment! This is nothing but being arbitrary, unreasonable and discriminatory. A travesty of justice in a law school, eh? Quite a paradox. "We can only give opinions that there has been a gross miscarriage of justice," says Indira Jaising in an article of hers, and I couldn't agree more.
P.S. - I might have been rather jabberwocky but this isn't to be dismissed as a sporadic burst of rage/angst against the authority. And shall I be subjected to an exclusive dance with the DISCO now that I have gone out of my way and used my freedom of speech and expression?
- Deya Bhattacharya.
Sunday, September 5, 2010
Saturday, September 4, 2010
To answer such issues I would certainly have to draw attention to the fact that throughout history innovations or development has never been dependent on the protection provided by intellectual property. Although the presence of IPR traces back a long way, its full fledged application has only emerged in the last century. Having said so I do realize the need for laws to protect and promote research in fields such as biotechnology due the cost factor and the degree of risk involved.
However to put the blame on the present model of IP protection and to proceed on a trip looking for solutions in the present legal framework would be nothing short of tumbling down the wrong rabbit hole.
At the end of the day companies decide their own vision; the fact whether Dr. Reddy's Laboratories keeps or removes the words, ‘discovery led global pharmaceutical company’ from its grandiose vision statement has very little to do with extant patent laws and more to do with the risk and gain assessment of that corporation coupled with its ambition and core-mentality.
Success stories of pharmaceutical companies reaping great profits from the present legal paradigm of patent laws are numerous. However what we fail to appreciate is the fact that behind every success story like Lipitor hides tens of failures like Torcetrapib (Pfizer lost nearly $1 billion invested developing the failed drug).
The real issue does not lie in the laws but in the existing attitude to R&D in India, both corporate and Government. We are more than happy to buy technology rather than promoting or investing to develop them. Various reasons and factors can be attributed to the sad state of innovation done in our country considering the fact that there is hardly and lack of talented minds present in the country. Our step motherly approach to research ensures that the state is denied of any return from the hundreds of crores it invests in educating its citizens.
So the question is less of whether the law can do more to promote the development and more on the lines of whether Indian Pharmaceutical corporations along with the Government are willing to take the added risks to invest and promote a culture of R & D.
B.A.LL.B, 5th Sem
Friday, September 3, 2010
Khaps want laws against homosexuality, surrogate motherhood and stern punishment for pornographic offences
References For Further Reading
1. Lovleen Bhullar, ‘The Indian Forest Rights Act 2006: A Critical Appraisal’, 4/1 Law, Environment and Development Journal (2008), p. 20, available at http://www.lead-journal.org/content/08020.pdf
2. Dr. N.C. Saxena, D.r. S. Parasuraman, Dr. Promode Kant, Dr. Amita Baviskar, Report of The Four Member Committee for Investigation Into The Proposal Submitted by The Orissa Mining Company for Bauxite mining in Niyamgiri, August 16 2010, at 8-9.
3. section 2(a), FRA, 2006.
4. Soumyajyoti Biswal, Cost of Development: Displacement, Orissa Economic Association Journal (2009).
The recent Rajasthan High Court dictum on the implications of UGC Regulations on the State Universities has once again reiterated the opinion of Supreme Court in T.P. George Case. Indeed this was not the first judgment when the High Courts in India have ingenuously overlooked the binding mandate of UGC Regulations. This dictum of Rajasthan High Court contributes to an array of decisions whereby the judiciary has made a mockery of the legal solemnity to the Regulations passed by a body which has been constitutionally entrusted to make provision for the co-ordination and determination of standards in Universities. The thought that these regulations which are specifically made within the ambit of the power conferred on UGC are not binding on the Universities will surely undermine confidence in the UGC as a body established with a constitutional mandate. The main question before the Courts has always been that whether the UGC Regulations are binding on the State Universities. Before I analyze the correctness of these decisions it is quite pertinent to briefly review the facts and circumstances which have led to the current controversy.
The story starts when the Chaddha Committee, which was constituted for revision of the pay scales of teachers in higher education at par with the 6th Pay Commission, came up with a conclusive suggestion for an increment in the superannuation age of teachers from 62 to 65 years with an objective to meet the acute shortage of experienced teachers in state universities. On the basis of this report MHRD formulated a scheme which included pay scales, qualifications, recruitment procedures and covering various other important aspects, one such aspect being the superannuation age. Subsequently, the MHRD and the UGC flashed out various circulars to the education secretaries of States directing them to implement the UGC’s composite scheme in toto failing to which the State Government will have to cease its demand of reimbursement to the extent of 80% of the additional expenditure incurred on the payment of the revised scales. On June 30, 2010 UGC in pursuance of letter from MHRD framed UGC Regulations 2010. These regulation were framed under the powers conferred by clauses (e) and (g) of section 26 of UGC Act, 1956.
Various State Universities across the country in order to avoid the implementation of this regulations claim that this UGC fiat has no binding effect on them as these regulations are mere recommendations and cannot override the State Universities Act enacted by the state legislature under entry 25 of the concurrent list. The same view was upheld by Supreme Court in T.P. George case which has been reiterated in bundle of High Court judgments. However, the author is of the view that in the current educational regime, there has been significant transformation in the work of UGC then and today. Now these regulations are no more mere recommendations. The High Courts in India have failed to appreciate the context in which the Supreme Court ruled in T.P. George and have tried to riposte the judgment of the Supreme Court. The principle of Stare decisis also worked like handcuffs for the High Courts. This has left the following questions unanswered which are of great significance in current scenario. First, whether age of superannuation is a matter which comes within the purview of entry 66 of List 1 of Seventh Schedule to the Constitution of India? Second, whether the interpretation of the apex Court in T.P. George Case is significantly overruled by subsequent case laws? Third, whether the regulations made by UGC are in the form of delegated legislation and can it override State Legislation? Finally, whether the Court took into consideration the wordings of the regulations which in this case appear to be more than mere recommendations?
The judiciary should take note of the nature of the functions performed by the UGC and at this juncture it is essential that the regulation made by UGC should be given a status more than that of a mere recommendation. Further, these regulations should have universal application throughout the country so that UGC can discharge its constitutional mandate of making provision for the co-ordination and determination of standards in Universities effectively and efficiently. The author expresses his apprehension that by ousting the control of UGC over State Universities, the constitutional purpose for which UGC has been established would fail.
Critical comments would be much appreciated!