Tuesday, December 21, 2010

Reason For The Poor Asian Response To International Criminal Court

Classical international law is the system that protects the rights of sovereign states to be free from external aggression and sets out a framework by which the relationship between states may be regulated. The matters relating to the individuals were considered as the private affairs of each sovereign state having absolute control on its residents. The Hobbestian notion of unrestricted, uncontrolled, inalienable domestic sovereign rights of states encapsulated under treaty of Westphalia  continued with minimum changes up to the end of World War II, when after the huge destruction of innocent lives followed by holocaust of Jews made the world community to think that states could not always be relied upon to guarantee the most basic rights of their citizens[1] nor they could be relied upon to hold the individuals accountable for committing core crimes of humanity , and thus an attempt was made to limit the absolute powers of sovereign states in treating their citizens and a new autonomous branch of law came into existence namely International criminal law, which is the combination of that body of laws, norms, and rules which governs the international crimes and their repression, as well as addressing conflict and cooperation between national criminal-law systems.

Development of international criminal law is seen as a significant departure from 'classical' international law which was mainly considered as law created by states for the benefit of states, but tended to ignore the individual as a subject of the law. Thus whereas International law typically imposes responsibilities of States for their benefits , international criminal law imposes responsibilities directly on individuals[2] and punishes violations through international mechanisms. Over a period of time certain crimes were recognized as Jus Cogen crimes imposing Erga Omnis obligation on each state to prevent them and punish the offenders irrespective of their official position. The Judgment of Nuremberg and Tokyo trial laid the foundation of transitional justice whose principles were later on recognized and incorporated under several conventions, treaties and statutes, the key   instruments among these are Anti Genocide Convention of 1948, Hague and Geneva conventions on war and warfare 1949 with its two protocols of 1977, Anti Torture convention 1975, Rome statute of International Criminal Court 1998 etc. In true spirit International Criminal Law got momentum only after the judgment of Nuremberg and Tokyo trial wherein it was observed that no body , no state, no head of state, no soldier acting under apparently legal orders has right to violate the most fundamental rights of humanity.[3] Thus international criminal law laid to the "subjection of the totality of international relations to the rule of law"[4]

Sunday, December 19, 2010

DEVELOPMENT INDUCED DISPLACEMENT OF TRIBALS : An Analysis From Human Rights and Environmental Perspectives

Development refers to economic, social, political and cultural processes of change in human societies which seeks to satisfy the spiritual and material needs of man. Displacement is an inherent[1] phenomenon of such development. Normally developmental projects are aimed at fighting poverty and their outcome is beneficial; however during last three decades development induced displacement has become an explosive issue worldwide because the improved scientific and technological knowledge has enabled the modern states in concentrating on mega development projects which directly led to the large number of displacement generally of poor and marginalized section of society like tribals, indigenous people, living in forests or rural areas. This issue is of more concern in developing countries like India where due to the lack of proper rehabilitation and resettlement measures as well as restoration of environmental degradation, developmental projects has become a government run instrument of ethnocide.
The present development model is under severe criticism from human rights activists  ;They  argue that tribals resources are being used as means for feeding the greed of few elites who have hijacked the welfare policy making power of state on a socialist pattern; as a result  tribals have become the object of development[2] and the little they have are continuously being exploited by exclusionary policy of government which is now accelerating the gap between those who do not have enough and those who have more than enough; the have-not are miserable and the elite anxious to get more.
Displacement of people generally give rise to severe economic, social and environmental problems; productions are lost; people are relocated to environments where their productive skills are less applicable, greater kinship groups are dispersed; and cultural identity, traditional authority and the potential for mutual help are diminished[3]. The forced displacement is now generating the capital and human resource to the present tribal led Naxal movement which has captured more than 220 districts of country, and ensured a parallel government therein. Despite of several constitutional ,and domestic legal protections, hardly there benefit reaches to such marginalized people .The progress of government on environmental front is also being severely criticized by the environmentalist for giving green signal to several projects without proper environment impact assessment and dilution of several environmental laws to accelerate the industrialization.The scope of this paper is to do an analysis of the present development and resettlement policy of India with primary focus on tribals and environmental issues.

Constitutionality of taxing services provided and received outside India

What is Section 66A?
The Finance Act, 1994 was amended by the Finance Act, 2006 with a view to replace the Explanation under Section 65(105) with the new Section 66A, which came into force on 18.4.2006. The Central Government also introduced the Taxation of Services (Provided from outside and Received in India) Rules, 2006[1] under Section 66A. This new section, along with the rules, shows the intention of the Central Government to tax services rendered by non-resident persons from outside India (i.e. outside the territorial limits of India) to a person in India.

As per these new provisions, if a taxable service is rendered by a person outside India and if the said service is received by a person in India or by a person located in India, the person in India shall be deemed to be the provider of such service, for the purposes of payment of service tax.Section 66A is based on the reverse charge method, where a legal fiction is created by which the recipient of service is made liable to pay the tax as if he alone had provided the services domestically. In such a case, the recipient of service is treated as ‘deemed service provider’.

Religious Endowments in Hindu Law

From the earliest times Hindus have been dedicating property for religious and charitable purposes. This has been mainly under two heads: Ishta and Pushta. The former indicates the Vedic sacrifices and rites and gifts associated with such sacrifices. The latter stands for all other religious and charitable acts and purposes unconnected with the vedic sacrifices. The Ishta –Pushta have been considered as means for going to heaven. Various types of gifts were emphasised , but merely by making gifts or performing sacrifices, a charitable or religious endowment doesn’t come into existence. It will come into existence only when some property or fund is dedicated for a religious or charitable purpose or object.
It is to be noted that definition of the phrase "charitable purpose" is inclusive and it covers a wider field than the field covered by the words "religious purpose". Further, in some cases, even a religious activity by a particular sect would be a charitable activity; for some, supply of fodder to animals and cattle is a religious object, while to others it may be a charitable purpose, according to Hindu religious activity. Similarly, Khairat under the Mohamedan law would be considered to be a religious activity. The said activities may be for a charitable purpose to some. Hence, in many cases, both the purposes may be overlapping. The purposes may have both the elements, charity as well as religious.
While dealing with what is "religious" or "charitable purpose" it is observed by the Supreme Court in the case of Ramchandra Shukla v. Shree Mahadeoji[1], that there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion. While discussing this aspect, the Supreme Court has further observed as under (at page 464):
"Hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. Therefore, although courts in India have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term 'charity' in the Statute of Elizabeth, and, therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law.
As observed by Mukherjea in Hindu Law and Religious and Charitable Trusts, Second edn., page 11, there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion, for, gifts both for religious and charitable purposes are impelled by the desire to acquire religious merit. According to Pandit Prannath Saraswati, these fell under two heads, Istha and Purta. The former meant sacrifices, and sacrificial gifts and the latter meant charities. Among the Istha acts are Vedic sacrifices, gifts to the priests at the time of such sacrifices, preservations of vedas, religious austerity, rectitude, vaisvadev sacrifices and hospitality. Among the Purta acts are construction and maintenance of temples, tanks, wells, planting of groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and promotion of education and learning. (of. Pandit Prannath Saraswati's Hindu Law of Endowments, 1897, pages 26-27). Istha and Purta are in fact regarded as the common duties of the twice born class (cf. Pandit Saraswati, page 27).''

Essentials of A Valid Endowment
Essencial of a valid edowments are 
  1. The dedication must be complete,
  2. The subject matter must be specific,
  3. The object must be definite,
  4. The settler must have the capacity to make the endowment.

The Victim

Women in our country, even after six decades of India’s independence, continue to be helpless victims in every walk of their life. They are being tortured and beleaguered physically as well as mentally everywhere and every time. In our society, either in domestic sphere or in outer world women from all walks of life has been criminally exploited. Women who constitute one-half of the society and without whose presence the survival of the world would have been impossible, have ironically been made a subject of sexual harassment and are going through hell in this male dominated world. Almost every day a case of sexual assault is being reported in the daily newspaper. As per the national commission for women, every twenty – six minutes a woman is molested, every thirty-four minutes a rape takes place and every forty- two minutes an incident of sexual harassment takes place.

      Crimes against women are as old as the civilization and equally ancient are the efforts to combat and arrest them. Women in India through the ages have been victimized, humiliated, tortured and exploited. Throughout the world, millions of women live in conditions of abject deprivation of and attacks against their fundamental human rights for no reason other than that they are women. Being a member of the human family, she has the right to be treated as human from womb to tomb.

        Violence against women, more particularly within the domestic environment has become a serious social issue and of our concern. Domestic Violence occurs in all geographical areas of India and in all socio-economic and cultural groups. Millions of women in India suffer beatings and verbal abuse at home. It directly affects the victims, their children, their families and has repercussions on the quality of their life. Domestic Violence means that any act of violence that result in or is likely to result in physical, sexual, or psychological harm or suffering to women, perpetrated by their male partners whether they are married or not and whether they live together or not. In fact, violence against women is a discrimination against the women community which is largely related to cultural stereotypes. It is one of the strongest expressions of gender stereotypes.

Employer's Liability under Contract Labour (Regulation and Abolition) Act, 1970

The system of employing contract labour there in most industries in different occupations including skilled and semi skilled jobs. Even it may be in the agriculture and allied services. .A workman is deemed to be employed as Contract Labour when he is hired in connection with the work of an establishment by or through a contractor as per section 2(b) of the Contract Labour (Regulation and Abolition). One more thing is stipulated by the section that, that worker is hired with or without the knowledge of the employer, is immaterial.Contract workmen are indirect employees; they are persons, hired, supervised and remunerated by a contractor who, they are compensated by the establishment. Contract labourers may be employed for a specific work, which is for specific duration. But there are so many problems under the system of contract labour as like inferior labour status in comparison to the other regular workers, casual nature of employment, lack of security in work, and poor economic conditions. One perspective that is economic factors as like cost effectiveness may justify contract labour, but the extent of it must be determined another perspective, that is social justice.  
The Supreme Court of India in the case of Standard Vacuum Refinery Company Vs. their workmen[1] observed that-  If the work is of  perennial nature which must be done day by day, then the employer can easily hire the regular workers for it. Further the court went on to say that the situation would be different when the work is of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for this purpose.

US economic slow down - which way to go?

Discussion forum


The Trademarks Law: Google Inc. v. Consim Industries Pvt. Ltd.

The internet offers tremendous opportunities to creative businesses to expand their traditional views of marketing. However, due to essential nature of the internet system, which works both on a software system where both temporary copying and storing is a common place, and a domain name based system that is overcrowded, companies must tread carefully when developing marketing strategies for the internet. The issues illustrated in this essay demonstrate that trademark law concerning the internet is unsettled, and will remain the same for sometime, leading to a number of lawsuits. It behoves anyone jumping into e-commerce only after the registration of any or all of the domain names that can cause confusions to its trade mark There is no room for errors in cyber space because any slight delay in registration could be fatal for the company. The essay explores such other aspects in relation to consim controversy.


The Law of Cyberspace: Legal Paradigms of CyberLaw

As new technologies are created, terrorist groups are developing new methods of attack by using the internet as their battlefield. Since the internet holds no territorial boundaries, nation-states have become increasingly vulnerable to cyber threats and terrorist attacks. With almost no leads on the terrorist group at fault it has become increasingly difficult for law enforcement and military officials to identity and defectively respond to attack through cyberspace. This paper answers: 1) Who should respond?, 2) How to respond? 3) How to build transnational legislations for combating the menace?