Karnataka Assembly Crisis

The author expresses his regret for going beyond the word limit; however, the exigency of the matter compelled him to do so.

The ongoing political outcry in the State of Karnataka has stunned the whole nation and the vibes of this political deadlock has brought the constitutional issues regarding the authority of the Speaker of the assembly and Anti defection law at the forefront. The disqualification of 16 MLAs (11 BJP and 5 independents) by the Speaker K.G. Bopaiah ahead of the trust vote on October 11, 2010 has taken the legal and political community aback. Eminent politicians, jurists and commentators posit themselves on opposing extremes of the academic spectrum on this point, and recent split judicial pronouncements by Karnataka High Court add to the confusion. Being students of Constitutional Law, it is imperative as well as essential for us to gauge the validity of these political actions on the touch stone of the Constitution. This post would delve into the contentious issue of law regarding the disqualification of MLAs. In doing so, the first part would provide a brief background to the present controversy and then it moves to trace the constitutional provisions with regards to the disqualification of MLAs. The next part would examine the case law jurisprudence revolving around the same issue.

Part I: Background of the Controversy

The saga begins on October 6, 2010 when 16 MLAs approached the Governor H.R. Bhardwaj whereby they expressed their lack of confidence in the government on being aggrieved by the alleged disillusion with the functioning of the government headed by B.S. Yediyurappa. It was alleged that the government was responsible for widespread corruption, nepotism, favourism, abuse of power and misuse of government machinery. With these reasons they asserted that they have withdrawn their support to this government in their letter on the same date. Taking note of this dissatisfaction, the Governor addressed a letter to Chief Minister on the same date wherein he requested the CM to prove his majority on the floor of the house. At this juncture, it is pertinent to note that the said floor test has been laid down by the Supreme Court in S.R. Bommai Case which was subsequently followed in Rameshwar Case. Subsequently, the CM filed a petition under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on grounds of Defection) Rules, 1986 praying for the disqualification of 13 MLAs. The Speaker accepted this petition and passed the impugned order dated October 10, 2010 whereby 11 MLAs were disqualified. The story took an interesting turn when the questions arose as regards to the said disqualification wherein it was alleged in various media reports that the sole purpose of such disqualification before the trust vote was to bring down the strength of the house to 208 and thus it was aimed at facilitating the comfortable win for Yediyurappa’s government. Aggrieved by this, the MLAs challenged their disqualification in the Karnataka High Court. The court pronounced a split verdict on the issue on October 18. Chief Justice J.S. Khehar upheld the action of the speaker and Justice N. Kumar set aside the order of the speaker calling it unconstitutional. The matter has now been listed for hearing before a third Judge on October 20.

Having dealt with the factual background leading up to the passing of the split decision by High Court, I shall now venture to deal with the law on disqualification.

Part II: Constitutional Provision Regarding Disqualification Of Members

The 16 MLAs were disqualified by the speaker under the 10^th schedule of the Constitution on grounds of defection. Article 191 read with the paragraph 2 of 10^th schedule of the constitution lists two grounds on which a member of a house “belonging to any political party” can be disqualified. First, “if he has voluntarily give up his membership of such political party”, Second, “if he votes or abstains from voting contrary to any direction issued by the political party.” In the present context, it can be very well argued on behalf of the MLAs that their action of approaching the governor to express their grievance against the government did not amount to voluntarily giving up their membership. As Justice J.S. Khehar put forth, the MLAs merely “dissented”, it was not “dissidence.” The right to dissent has an enormous bearing on democracy. Democracy is not about “who is ruling” but “who is in the opposition.” Merely on grounds of dissenting it would indeed be unjust to remove the rebel MLAs.

Part III: Judicial Pronouncements On Disqualification of Members

Similar issue had plagued and perplexed the judicial minds in the case of Ravi S. Naik & Sanjay Bandekar v. Union of India & others wherein the Court held that the words “voluntarily giving up membership” do not mean “resignation”. The court had categorically clarified that “A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.” An inference has to be made by the speaker on the basis of evidence supporting the same. In the present case Mr. Bopaiah had send show cause notices to all the MLAs asking them to explain why action should not be taken against them. Here the procedure was duly followed as envisaged by Rule 6 and 7 of KLA Rules, 1986. The MLAs were given a chance to explain their positions by adducing documents. However, the MLAs were given just 4 days to file their replies, whereas the Rule 7(3) of Karnataka Assembly provide for seven days time. Therefore it would indeed be difficult for the Court to classify the action of the speaker as unconstitutional. The speaker was well within the ambit of the law when he passed the order of disqualification. Further in the case of Sri Rajendra Singh Rana & Ors. V. Swami Prasad Maurya & Ors, the Supreme Court took a liberal view of what constitutes “voluntary giving up” by laying down that “the act of giving a letter requesting the Governor to call upon the leader of the other party to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected”. Hence the fact of defection can be implied as well express.

Even after a scrutiny of constitutional literature ranging from bare provision to the judicial interpretation, the dispute rests with the judiciary standing at the forefront as the torchbearer. The author awaits the reasoning of the Court coming up on October 20 which would further provide me the chance to analyze the approach of judiciary in such matters.

The Kihoto Hollohan case conclusively established judicial review in case of disqualification of members form the house as it struck down para 7 of the tenth schedule.

YOUTHENESIA

The global enigma of politics has shifted. We have a black American president; few years back the populous would have considered this consanguine a flagrant fallacy. What I am suggesting in this short post would seem impalpable like few decades back a black American president would, therefore it is a humble request to the objectionaries of our blog to read this post with an open blend of mind.

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.

Validity of Presumption of Marriage: An Unresolved Quandary

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.

Jeet Soni

An Awesome Sunday: First Dinabandhu Sahu Memorial Lecture

It is been rightly said that Knowledge knows no boundaries and probably it was a perfect day for a bunch of students here to travel a journey of odd-30 minutes to perplex our minds with the practicalities of legal acumen. There could have been no better use of the bright Sunday morning then to attend the First Dinabandhu Sahu Memorial Lecture 2010 organized by our beloved teacher and mentor Dr. Faizan Mustafa at the magnificent academic block of National Law University, Orissa. The event was presided by Hon’ble Justice D.P. Mohapatra, Former Judge, Supreme Court of India and the keynote speaker was Hon’ble Justice A.K. Patnaik, Judge, Supreme Court of India. The topic for the lecture was Compensation to Victims of Crimes and Rehabilitation of Convicts after Imprisonment. His Lordship began with a very interesting instance to depict the sense of humour of this great legend. Once when Late Dinabandhu Sahu was sitting in the Court room as a defense lawyer and the Public Prosecutor was arguing before Sessions Judge, being interrupted by his comments the PP who was a tall man, said “if this little man talks more, I will put him in my pocket.” Without a loss of moment, he interjected – “if the Public Prosecutor does that then he will have more brains in his picket than in his head.” With an applaud from the students and the dignitaries present there, he moved on to the topic of the day. Following are the excerpts from the lecture:

“Notwithstanding the punishment of the convict, the victim may continue to be financially crippled on account of the crime and his right to life and liberty guaranteed under Article 21 of the Constitution may continue to be infringed. On the other hand, we must bear in mind that a convict does not cease to be a person and as a person continues to have the fundamental right to life and liberty guaranteed under article 21 of the Constitution. All that happens by virtue of conviction is that the convict is deprived of his liberty during the period of imprisonment in accordance with law and after that he is entitled to his fundamental rights guaranteed by the Constitution of India. Hence our law must provide for compensation to the needy victims of crime and rehabilitation of the convicts after punishment.”

He referred to some of the Supreme Court decisions, viz., Nilabati Behera v. State of Orissa & Ors, Chairman, Railway Board & Ors v. Chandrima Das & Ors, D.K. Basu v. State of West Bengal, in which the Court took the lead and awarded compensation to the victims. His Lordship also took note of section 357 of Cr.P.C. which empowers the criminal courts to award compensation to the victims. One of the interesting issues raised by his lordship in course of his lecture was that what would happen if the Court finds that the convict has no capacity to compensate the victim. To clarify the position on this point, he made passing reference to the Prisoners’ Earnings Act 1996 in England. The need for such a provision to compensate the victim in such situation was overviewed by the Supreme Court in State of Gujarat v. Hon’ble High Court of Guajarat. This recommendation was taken up by the State Legislature and it made a common fund in which a portion of wages earned by the Prisoner was set apart to be paid as compensation the victim.

The Hon’ble Speaker took a critical note of current trend as regard to the rehabilitation of the convict and opined that the law in India presently does not provide that the State has to undertake rehabilitation of the convict. The remarks made by the Supreme Court in this regard in State of Gujarat Case are remarkable. He concluded with the following remarks:

“…Law reforms for victim compensation and rehabilitation of the convict must be introduced in laws as early as possible on recommendations of expert bodies such as Law Commissions which may be set up by States. We must remember that in a democracy governed by Rule of Law any change toward a better society for the victims of crimes the convicts can only be achieved through reforms in the law and by effective enforcement of such laws.”     

Your Honour! Please condone the delay...!

If God would have given the creation of this world in the hands of lawyers, then they would have made 48 hours in a day. This is what the life of a law student is all about. But laws are always made taking into consideration the generality and in this case law students are exception, so we are at a constraint to complete all our work in this 24 hours. This constraint has kept our blog dormant for a month. Instead of filling this post with A to Z explanations for the same, we believe it would be ideal if we could utilize the space for sharing ideas about legal development at a new breath. Cheers!

The Caught-up Giant – Vodafone [Part 1]

The Recent Bombay High Court landmark decision in the Vodafone case has compelled me to write on it. I would deal with this matter in two divided posts – the first one would provide an overview for the reader unacquainted with the controversy in hand and the decision of the Court. In the succeeding post I would cull out the far reaching ramifications of this judgment – both at national and international level. A perusal of following paragraphs, thus, becomes essential in order to berate or appraise the decision.

One might be amazed to note the finding of the court in page 3 of the judgment. The judges have attempted to give graphical overview of complex shareholding patterns in the giant’s involved. With all due respect to the Court, I would like to simplify the situation to the readers in words. The saga began in May 2007, when Vodafone International Holding B.V. (A Dutch subsidiary of Vodafone Group U.K.) acquired 52% stakes in CGP Investments (Holding) Ltd (A Cayman Island based company) from Hutchison Group (A Hong Kong based corporation) in a whopping deal worth US $ 11.01 billion. Central to this controversy is the fact that CGP Investments Ltd was holding 67% shares of Hutch Essar Ltd. (an India based company). As a direct consequence of this deal, Vodafone acquired the interest in Hutch Essar Ltd India with the transfer of the shares from CGP Investments to Vodafone. The Income Tax Authorities (ITA) joined the party pretty soon. The ITA realized that taxable gains which arose due to this transfer significantly involve Indian assets. The ITA, therefore, issued a show cause notice to Vodafone since it failed to discharge this tax obligation. The primo contention of ITA submitted before the court was that tax is owed on the deal because the assets sold by the giants were based in India and that Vodafone, being the buyer, was responsible for adhering to this tax obligation. The contrary submission of Vodafone was that there was no tax obligation owed on the said transaction because it took place between foreign companies and the entity involved in the deal was registered in the Cayman Islands. In the words of Harish Salve appearing on behalf of Vodafone, it was merely a sale of one share of a foreign company from one non-Indian company to another. The main question which arose before the Court was that whether the said transaction between the foreign companies resulted in an income which would be taxable in India, or in other words whether ITA has jurisdiction to tax the remittance occurred in the said transaction?

An HC division bench of Justices D.Y. Chandrachud and J.P. Devadhar in a 196-page judgment, after comprehensively analyzing Indian and International taxation laws, expounded that Vodafone was under an obligation to pay taxes on its $11 billion acquisition of CGP Investments in 2007 and the Indian tax authorities had jurisdiction to tax the gains arising from such transactions as it involved the transfer of rights and entitlements of local Indian subsidiaries. The Court rejected the contention the raised by Mr. Harish Salve that it was merely a sale of one share of a foreign company from one non-Indian company to another. (¶ 136) The Court noted that the transaction in question had a significant nexus with India. The essence of the transaction was a change in the controlling interest in HEL which constituted a source of income in India context. (¶ 144) However, a relief for Vodafone comes from the order of HC where it has asked Tax Authorities not to pass final order before 8 weeks. This provides Vodafone with a chance to appeal to the Supreme Court.

(To be continued….)

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Jeet Soni

The Roller Coaster Journey of Business Method Patent: The Case of Bilski [Part 1]

I propose to cover this post in three parts. First, I would give a prologue to the issues involved in Bilski case. Secondly I would delve into the remarkable opinion of Judge STEVENS and the thirdly I shall briefly review the possible outcomes Bilski judgment.

Part I- Overview oF The Case

In a landmark judgement of the US Supreme Court in Bilski V Kappoa (28th June, 2010) the court held that the “machine or transformation” test, laid down by the US Court of Appeals for the Federal District (CAFD) in the In Re Bilski case (2008), is not the sole test for deciding whether a process is an eligible patent set forth in 36 U.S.C. section 101. The petitioners sought to patent an invention that explains how commodity buyers and sellers in the energy market can be protected, or hedged, against the risk of price changes. The patent examiner rejected the petitioners’ application on the ground that it was not directed to the technological arts and that it merely manipulates an abstract idea. The BPAI affirmed the examiner’s decision on the grounds that the patent in question involved only mental step which does not transform physical subject matter and that it was directed to an abstract idea. The petitioners then preferred an appeal to the CAFD and after briefing, the court decided to hear the case en banc. The CAFD reviewed its earlier decisions in the State Street (1998) and the AT&T Corp (1998) case and held that the “useful, concrete, and tangible result” test set forth in the above two decisions were inadequate and that the sole test for determining subject matter of patentability was the “machine or transformation” test. According to the above mentioned test a claimed process is patentable if the following conditions are fulfilled. (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. Applying the test the court held that Bilski’s claim was not limited to a specific machine or apparatus nor did the process in question transformed any article into a different state of thing. Hence the process as claimed was held to be outside the boundaries of statutory subject matter and therefore was declared non-patentable.

Bilski then petitioned the US Supreme Court for a review which was granted. The only question that was sought to be decided by the court was whether the so-called machine-or- transformation test is the exclusive test for what constitutes a patentable “process” under 35 U. S. C. §101. The Court ruled unanimously that the machine or transformation test was reliable in most cases but was not the exclusive test. The Court categorically declined to read limitations into the patent act which is inconsistent with the Act’s text. The court reaffirmed its earlier decision in the Benson (1972), Flook (1978) and Diehrs (1981) case and held that the court had always kept the “Constitutional Standard” in mind when deciding what is patentable and non-patentable, a reference to the “laws of nature, natural phenomena, and abstract ideas” which are considered exceptions to patents.

Kanad Bagchi

(To be continued)

Is Deterrence A Good Solution?

The etymological meaning of the word deterrence is “A communication that makes you afraid to try something”. This practice has been the core of Criminal Justice mechanism for many a years due to the fact that it generates fear in the heart of the people and forbids them from committing an offence. The author in this short note would like to raise his concerns over death penalty as a form of deterrence.

The recent Iranian Court dictum in which Sakineh Mohammadi Ashtiani – a 43 year old mother of two children, was convicted of adultery and was sentenced to death by stoning has grabbed the attention of international community. The lawyer of Iranian lady reports that with the end of a moratorium on death sentences for the Muslim holy month of Ramadan, the woman would be executed any moment. In various jurisdictions around the globe including India, a death sentence is pronounced in rarest of the rare case. When I review the above sentence of Iranian woman in the light of above Penal codes, then this sentence seems to be most improper and inhuman one. We take pride in the fact that we live in an era of modern civilization marked by 21^st century, however it is humiliating to note the ongoing existence of penal provisions which are despotic in nature. One such example is Article 102 of Chapter 2 of Islamic Penal Code of Iran. This provision reminds us of the horrible history of England wherein every other offence ended with capital punishment.

Article 102: The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts. 

The verbatim of the Islamic Penal Code of Iran quoted above reveals the identical treatment which was given to witches nearly a century back in England. The theories in criminology speak that the pain during the period of punishment should be same as the pleasure been derived during the commencement of the act, but the theory seems to being inapplicable to such a cold-blooded and insensitive mode of punishment. Another recent realization which is more horrific and shakes the conscience of humanity is honour killings. A contemporary research done by journalist Robert Fisk concludes that the UN figure of 5,000 honour killings per year worldwide is now crossed its precursor numerical to reach the figure of 20,000. The offenders of this heinous offence are not generally from any religion, though the majority view is pointed at Islamic countries. Now the praxis of Honour Killing can also be noted in the Hindu and Christian community. The author is of view that we survive in the 21^st century but the aforesaid instances are symptoms of the worst dream of humanity coming true in near future.

 
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Aishvary Vikram

B.Sc.LL.B. 2^nd Year

The One with the Scandal.

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.

Whose Right is it after all?

Human Rights have been one of the highly contested ideas in the era of Globalization and Global Integration. The advocates of Human Rights say that they are applicable to all human beings by virtue of the very fact that they are Human. But the essence of the above idea is itself marred with Ideological differences and skewed Cultural rhetoric. Whether we highlight the liberal democratic ideas of the free market economies of the Western world or the State Centric Socio Economic Welfare Ideas of the Eastern Block all of them in practice are not capable of withstanding even the slightest of grievances of the eventual claimant i.e. the Common man. That Common man who suffers daily in the tussle between imperialistically driven ambitions of the Coalition forces and the dissidents in Iraq or the ill fated farmer in India who is compelled to commit suicide due to faulty economic policies and inequitable distribution of national resources in spite of the Indian Constitution mandating a positive obligation on its government to ensure proper living and health conditions of its citizens and promote agricultural activities for all round socio economic development. (See Articles 47 and 48 of the Indian constitution).

 It is rather ironical that those states who have advocated the setting up of an International mechanism to ensure the protection and preservation of Human Rights are themselves one of the poorest performers in maintaining human rights standards in their respective domestic Jurisdictions. Take the instance of the United States of America which has championed the cause of Liberal democratic principles of free speech, freedom from arbitrary detention etc. A closer look into the country’s foreign policies and its record in conforming with Human Rights obligations would present you a bleak picture of the harshest realities which it has so effectively concealed from being disclosed. Thousands of detainees are being locked up secretly in a Nazi concentration camp like area of Guantanamo Bay in Cuba for obvious reasons. Some of them are political dissidents who do not agree with American foreign policies and the rest are detained purely on grounds of suspicion without any reasonable proof to justify such detention. Moreover even if such detainees do get a hearing in one of the judicial courts of the American Republic and are cleared of the arbitrary charges against them by following the due process of law they are again hauled up and imprisoned by America’s draconian and archaic immigration laws which entail strict punishment for those individuals entering US soil without proper travel documents. To the greatest consternation of any reasonable human being how are these individuals supposed to even posses the most rudimentary documents certifying their nationality when they were being secretly whisked away or kidnapped into American territory by the nefarious schemes of its dreaded Intelligence Services. So in hindsight very few of these ill fated detainees get to live a free life so actively propounded in the doctrinal and political justifications of the American State. This was just one example highlighting the obstacles facing the sustenance of the sanctified principles of Human Rights obligations on the nation states.

Therefore on a parting note I put forth this question Can we ever imagine an International Human Rights Regime endowed with such authority which binds all its subjects with equal force and Zero tolerance against non compliance and Political arm twisting so that the layman for whom such elaborate provisions have been designed and articulated is indeed able to avail them when he requires them the most for his survival?

Debanjan Sinha

B.A.LL.B,  5th Sem

An Alternative Solution to Non International Armed Conflict

 Post Second World War, maintenance of international peace and security emerged as the core mandate for international community. In furtherance of this mandate, United Nation was established. One of the ostensible purposes of establishing this body was to negate threats amounting to international armed conflicts. [Hereinafter I.A.C.] Henceforth the development of international law centered around the concept of I.A.C. as a substantial threat to overcome. The question regarding the success ratio of United Nations to meet its aforesaid objective is still open. At this point it is pertinent to note that non-international armed conflict [Hereinafter N.I.A.C.] as a threat was overlooked by the United Nations. The stats show that 97% of the total conflicts, post second world war, are in the nature of N.I.A.C. This problem of N.I.A.C. is much greater in magnitude in comparison with I.A.C. The question which United Nations now faces is whether it can intervene in N.I.A.C.?

The cardinal principles of International law are state sovereignty and territorial integrity, which have express recognition in the operative provisions of United Nations Charter. These principles include non-intervention in the internal affairs of the member states of United Nations. Article 2 paragraph 4 furthers this cause by prohibiting states from using force against the territorial integrity or political independence of other states. United Nation itself is not protected from the ambit of principle of non-intervention through the operation of paragraph 7 of Article 2 of UN Charter. This article prohibits United Nations from intervening in matters which are essentially within the domestic jurisdiction of any member state. The exception to the aforesaid prohibition finds its place in the Chapter VII Article 39 which authorizes United Nations to intervene in the form of enforcement measures. It states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. This clearly points out that international law authorizes United Nations intervention in situations of armed conflict of non international character. Such authorization, if allowed, will empower the United Nations to play a pivotal role in the negating Naxalism problem and other N.I.A.C. in India. For an abstraction, United Nations can act as a mediator between the State and the non-governmental players in N.I.A.C. They can exercise a power similar to that of suo moto cognizance to mediate or advice the parties at conflict. This would protect the sanctity of international peace by avoiding recourse to arms. The solution lies in words not wars.

Arjun Mehra

B.B.A.LL.B. 3rd Year

UNTITLED EMOTIONS

The old campus of Kiit Law School has not only housed but harbored around five hundred intellectual legal minds. It has been for two long years that I have shared my thoughts with this not so living entity. The events of the very first day in the womb of this campus are still afresh in my mind. The premises of this make shift campus was a brain child of my mentor and the founder director of Kiit Law School. This campus always carried my mentor’s aura and his ambitious educational pattern, which has always propelled my career as a law student. As we all are aware that time and tide waits for none, a similar situation was faced by this law school. One year back there was advent of a new mentor and director with his new dynamic and prospective plans which have consistently yielded successful results. His constant and impeccable support is undeniable. The mentors changed and the priests which are none but the faculties of this temple of education also changed but someone was always there. This someone is our very own old campus. In the heart of this campus was a small room allotted for mooting activities. I might not have visited the urinary that often but of course this consortium was my favorite destination. This moot hall has witnessed great dialects and stood many fiery arguments but has never fettered any ambition. I still remember the seniors marketing presentation on transportation and a small physical conflict of opinions. In these three years this campus has seen many ups and downs. Ups being the student achievements and lows being the departing priests who had left this campus in ruins but with the candid efforts of our new director the law school is standing tall again. The crown of this law campus has been its library. My juniors had the pleasure to decorate the crown with the ruby of the first moot winner’s trophy. The library has also given shelter to many cozy birds. On eve of the arrival of the 4th batch, there was a realization that this law campus could not sustain them and there was expeditious work on other side, i.e. the new campus was build but no one notices the weeping tears of this old campus. On 4th September, 2010 the heart of this old campus was pierced. The watch was stand still at 6:05 PM and with a single stroke it was removed and there was no more a heart for our beloved old campus. In the excitement of modern amenities to be provided in the new campus we have overlooked the pain involved in the process. Of course we will celebrate the teachers’ day on 5th but please commemorate our old campus. The walls of knowledge and foundations of justice shall ever stand in the old campus 7 of KLS…

Pickon Biswal

Role of Patent Laws in Promoting R&D in Pharmaceutical Companies

In a recent blog post in Spicyip (available here) the author has raised certain questions in regards to the prevailing state of research and development of new drugs in the Indian Pharmaceutical Industry. At the end of his post he asks “Does the current legal regime including the patent regime provide incentives for radical innovation? Or is it lopsided in its approach of promoting only generic research? If yes, is this salubrious from a long term perspective? Does the extant legal and policy framework maintain a salutary balance between addressing public health concerns and providing incentives for radical innovation?”
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.

Alimpan Chatterjee
B.A.LL.B, 5th Sem

Preservation of Rule of Law- Bar and the Bench

This post is in response to the ongoing lawyers strike in state of Orissa. They have been boycotting the courts including that of the High court at Cuttack since August 25^th in protest against the death of advocate Bishnu Charan Dash in the Bagalpur police firing on August 23^rd. Dash’s death had evoked protests from all sections of the bar. Surely the death of Mr. Dash should be condemned, but the larger question here is to what extent the interests of thousands of litigants can be put at stake. The third phase of the trial in the Kandhamal nun rape case was scheduled to begin on Monday after several delays. Unfortunately it couldn’t, as the lawyers were too busy on the streets up in protest. Lord Justice Stephen Sedley in his Hamlyn Lectures had remarked that the rule of law is indeed necessary but not a sufficient condition of a decent society. There is more to a decent society than the rule of law. Understanding and awareness of one’s rights need to be imbibed and that can be done only through education. He then concludes by saying that “if lawyers are to be educators, they must be trend setters inspiring public confidence.” Mr. Nariman in his autobiography Before Memory Fades writes “We demean our ourselves and our profession when we resolve to strike work, and so paralyze the working of the courts, tribunals and statutory authorities where public cases and causes demand our expertise, intercession and assistance.” We should not forget that the judiciary of our great country is the guardian of the constitution and the protector of civil liberties. In the discharge of its obligations the judiciary draws heavily from the bar. It’s a conjoint effort of the Bar and the Bench. If the Bar fails in its primary obligation to protect the interests of its clients, the Bench as a necessary consequence fails as well. We should remember what the greatest of the American trial lawyers Clarence Darrow said:

“I have never turned my back on any defendant no matter what the charge, when the cry is the loudest the defendant needs the lawyer most; when every man has turned against him the law provides that he should have a lawyer. I can honestly say I have kept the faith.”

Kanad Bagchi

Khaps want laws against homosexuality, surrogate motherhood and stern punishment for pornographic offences

The recent news article on the demands of Khaps points out the fact that the khap panchayats are not even sure of the fact what they want, first they want a ban on same gotra marriages now then on the practise of homosexuality and  now surrogate motherhood. The first question is what authority do they posses to press for such legal sanctions and for what reasons. They are behaving like some kind of  ethical and moral conditioners with no authority. On the top of it they are threatening the government with a strike on December 21. What do they think they are some kind of godly revelations who's primary duty is to protect the customs and traditions and shut all doors of liberty of the people and turn our heads to the opposite side so that we can only see the past and not the future. They think that sitting in some corner of India they can enforce what ever they want on the whole of India and without even taking into considerations what others want. Even if they demand for some kind of state amendments, their demands are on those issue are completely against modern day society. They want lok adalat status with judicial powers so that they can  kill, slaughter people whenever and wherever they want. What problem do they have with surrogate motherhood? Are they going to say it is like playing god and questioning their authority, come one god's authority was questioned when man discovered ways to produce fire by striking rocks, that was questioning god's authority, done is some century B.C. 

The punishment for an offence under section 292 of the IPC(Obscenity as an offence)  is on first conviction with imprisonment (simple or rigorous) for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

The punishment for an offence under section 67 of the IT Act is on first conviction with imprisonment (simple or rigorous) for a term which may extend to five years, and with fine which may extend to one lakh rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to ten years, and also with fine which may extend to two lakh rupees. Even with these kind of punishment they want 'stern' measures to be taken. Now its very difficult to gauge what stern punishment is. If they are hoping for some kind of life imprisonment or death penalty, this hope is completely out of the question. Can't these khaps think of anything which is more civilised and does not amount to killing. Really what are they panchayats or terrorist organizations ????

Sourav Dan

BSc. LLB, 3rd Year

Constitution Making in Nepal

The historic Jana-Aandolan II brought republic in Nepal after the election of Constituent Assembly on May 2008. With the support of five hundred and sixty members of Constitution Assembly new Nepal was formed, ending two hundred years of monarchy. The Constituent Assembly election in Nepal has established the primacy of ballots over bullets and unveiled the mandate for peaceful change. The advent of CPN (Maoist) that came out the biggest political party from the elections has provided it an opportunity to transform its wartime ideology, structure and goals into a mass-based competitive party. But due to Prachanda’s attempt to sack General Rookmangud katawal (army chief), opposed by President Ram Baran Yadav forced him to resign as Prime Minister. Promises to make Constitution within time period and making Nepal as like Switzerland within ten years were as good as strategy to win election. With this controversy CPN (Maoist) decided not to take part in newly formed government under Madhav Kumar Nepal inspite of his defeat in Constituent Assembly Election, he became Prime Minster of Nepal. After a year he resigned in an effort to help the government move past its current deadlock and to pave the way for a national consensus government as demanded by opposition. With his resignation also the three main parties (Nepali congress, CPN and UML) tried for a consensus government but dispute regarding leadership in consensus government, they didn’t succeed. Parliament failed to elect Prime Minster even after fifth round of voting. As one of the main party UML stayed neutral in every voting. Whereas other small parties had been bargaining.

At the present it’s very difficult to have a consensus government until the recruitment of combatants of People’s Liberation Army. And there is no leader like late Girija Prasad Koirala who can address the interests of all political parties and capable of forming consensus government. Due to instability of government, the farming of new Constitution has being under dolderm, as Constitutional committee has being working on different issues but still many issues to be finalized. Due to political instability the Constituent Assembly is also on stay at the moment as Constituent Assembly works as a Parliament also. This is just outline of present situation of Nepal and in coming post I will be referring problem in framing new Constitution.

Pratyush Upreti

Bsc.LLb (Hons) 3rd Year

Vedanta Vicissitude

Nehru on the eve of laying the foundation-stone for India’s first major river valley project, the Hirakud Dam in 1948, told ten thousand tribal residents of Orissa who were facing the grim prospect of displacement "If you are to suffer, you should suffer in the interest of the country”. Justification provided for the state action was agrarian reform policies. The implications of the proposed mining activity by Vedanta in the State, brought to light by the recent four members Dr. N.C. Saxena committee report, has resurrected the long forgotten wounds of tribal residents of Orissa. Historically, the relationship between tribal communities in India and forests was characterized by co-existence. These communities are also considered integral to the mutual survival and sustainability. This symbiotic relationship has corroborated into customary rights over forest produce. But these rights were not recognized and recorded by the government while consolidating state forests during the colonial period as well as in independent India. This injustice was further perpetuated by non-recognition of such rights of the tribals in the Wildlife (Protection) Act 1972 (the ‘WPA’) and the Forest Conservation Act 1980 (the ‘FCA’). Both the pieces of legislation found the environmental protection regimes and rights of tribal communities as incompatible. However, the recent 2006 legislation i.e. Recognition of Forest Right Act, 2006 (FRA) is some light at the end of the tunnel. This piece of legislation has identified and recognized the forest rights of tribal’s. The recommendations in Dr. Saxena Committee report seeking rejection of clearance to Vedanta Company has been backboned by the FRA. The finding of the committee reveals that the entire proposed mining lease area (PML) of Niyamgiri hills area allocated to Vedanta for mining falls within the category of Community Forest Resource (CFR), as defined in the Forest Rights Act (FRA), allocated to the tribal habitants in the villages inside or surrounding the four forest blocks. These villages have been vested with recognizable community and habitat rights by GoI under section 4(1) of the FRA. The mining activity of Vedanta if allowed would be clearly contrary to the aforesaid mentioned provision of FRA. As was suggested by the committee, the environmental ministry has rightly denied giving of clearance certificate to Vedanta for its proposed mining project on the same grounds. Human costs of this project is also very high, Dr. N.C. Saxena committee report also states that displacement would be one of the inevitable consequences of this project. Amidst all these legal connotations, the politicization of this issue, with the state government supporting Vedanta and a recent visit by a leader of the ruling party at power in the center, Rahul Gandhi, to the proposed site at Niyamgiri Hills to oppose the project, I can only hope that the rights of the tribal’s are not put to sacrilege.

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).

Plight of UGC Regulations

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 6^th 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!