Monday, December 12, 2011

HUMAN DEVELOPMENT : Why There is a Shift From Economic Development to Human Development and How That Shift is Measured ? by Akhilesh Patel, NLSIU

1.     INTRODUCTION

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. Historically this development process was state centric with given primacy on physical accumulation of income or materials. Individuals in process of such kind of development were marginalized by powerful and rich community having supports and backup of western governments and institution promoting capitalist oriented development theories. Trickle down approach furthered by structural adjustment programmes of World Bank and IMF lead to the detrimental of human life. John F. Kennedy and his successors following the principles of ‘a rising tide lifts all boats’ led to sunk several smaller boats under high rise of tide. There have been four theories regarding the nexus between economic growth and social development- The first theory holds the view that social development is a product of economic growth. This theory is well known as trickledown theory that makes emphasis on economic programs and assumes that economic growth would tend to produce social development. Okun and Richardson defined economic growth as "a sustained, secular improvement in material well-being as reflected in an increasing flow of goods and services." Thus it encourages throwing resources for economic growth and privatization. The second theory says that economic growth and social development are two unrelated events - Zuvekas as champion of this approach says that economic growth can occur without social welfare development and therefore countries should limit the distribution of the domestic benefits of growth to privileged elite at the expense of widespread social welfare development. He states that without specifically targeting the poorer sections of the population for assistance in meeting basic needs, economic growth could produce an ever widening gap between the wealthy and the poor.The third theory describes that neither social development nor economic growth is a primary cause of the other, but they are inter dependent –As a proponent of this view ,  Srinivasan is of the opinion that the policies for economic growth and the policies towards basic needs development are interwoven. He suggests that too much emphasis on basic needs would, at least in the short run, hurt economic growth which, in turn, would damage future improvement in the basic needs fulfillment. The fourth theory holds the view that social development precedes economic growth - Streeten as proponent of this approach has expressed that extra income would not always be spent on items basic to the individual's welfare. He notes that some basic needs may be satisfied more effectively through public services including access to clean drinking water, schools and health services, and therefore, are not directly linked to individual income. In fact, Streeten suggests a ‘trickle-up’ effects when he states "basic needs is not primarily a welfare concept; improved education and health can make a major contribution to increased productivity[1]."

effectiveness of sanctions in international environmental law by by Divya Rathor, NALSAR University of Law

Introduction

Effectiveness of sanction in international environmental law is a topic of   debate in recent world of modernization, globalization, liberalization and privatization. With the advent of  the technology,  the mother nature has been exposed to risk of environment degradation, so it has become necessary to look out for sanctions to control the menace and also to check the effectiveness of the sanctions.

The polluter pays  principle  or PPP, as one of the basic tenets of the concept of sustainable development provides for effective sanction for environmental law. According to the principle the polluter has to pay compensation for the loss done to persons, loss done to the environment as well as for the restoration cost of the environment. The principle has proved itself to be effective in protecting the environment. The recent application of the principle is found in Gulf of Mexico, oil Spill case.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, or The London Dumping Convention,  Marpol 73/78, STCW CONVENTION, 1978, Convention on Liability for Damage Resulting from Activities Dangerous to the Environment also provide for some what effective sanctions of international environmental law.

The case of Nauru and Nuclear testing by USA in Marshall Islands are the examples of case where the sanctions imposed for wrong done to the environment are effective but  have been criticized as inadequate.


Do we have right quality of political leadership in the legislative and administrative bodies in charge of government of the country and states? by Mr S. Lakshma Reddy, Advocate, High Court of A.P.

Do we have right quality of  political leadership and political institutions and Do we need any  change in them to meet the new global economic and political reality ?

Globalization of capitalism has its effects on countries as a continuous process.World has found that the socialism in the form it was experimented in soviet or chineese economy is not economically or politically feasible challenge or substitute to capitalism and is found to be contrary to natural evolution of human social development.Recent events in western capitalistic countries once again are proving that the civil and political rights and freedoms will not grow hand in hand with economic rights and freedoms unless under right leadership and the political conflict or contradictions erupt like volcuno to discharge the heat or absorb the cold in the political economy for realignment of new new political and social equilibriums with in countries and among countries in the global context.

The traditional 19th century individualistic free entreprising capitalism is now tranformed to dominant global corporate capitalism making the capitalist as a mere appendage to the recipient of prorata dividends or profits of entreprise on risk basis as one of the share holder and not as the owner of entreprise and corporate entreprise which is  recognised as a distinct entity from shareholder capitalist. with it has arisen new challenges of political control over the new managerial cadre's decision making  over these global corporate entities both public and private. Political control involve the sovereign bodies like legislative, executive and judicial powers entrusted to representative institutions and individuals holding and exercising such power delegated to them by sovereign people.

It is now proved that criminal nexus develops between politicians and administrators as a natural selfish person as distinct from the public personality in public office with corporate lobbies and mafias spreading their network across cross-borders to escape or delay domestic legal liabilities. Nations have worked on private international law and public international law through evolving new protocols, international conventions and charters etc but the institutions have come to be totally inadequate to the gravity of challenges of required political control to the challenges  posed by the acts of new corporate bodies and private entities as is found in the recent global financial crisis with practical immunity from any criminal liability to the perpetrators of economic malfeasants in governments and corporates. The crisis postponed through tax payers bailouts is re emerging in the form of national sovereign debt crisis situations, with resultant  new Wall street occupy and similiar  protests across many developed countries demanding accountability of governments, politicians and corporates. This is the new global challenge to political institutional outlook and demands for changes in all countries and among countries thrown open with new globalization of economies and markets.

Is indian leadership is in right quality with  necessary vision ready for these challenges to take the country in  right pace with changing global ecconomic and political scenario? is the quality of leadership in charge of national and state level sovereign representative institutions and its delegated powers under the constitution  in fit and proper mode to respond and what changes to be effected ? Is the existing form of government fits with new global reality to reflect the general will of its people and to execute the general will and if not what changes to be proposed? These two questions are to be ever present with any representative assembly and its delegates as is advised by the Jean joquise Roussoe in his celebrated work "on social contract " book and more relevant now.The two questions he propsed are as follows:



Follow Mr S. Lakshma Reddy, Advocate, A.P. High Court at http://slakshma.goforthelaw.com

Monday, September 26, 2011

Piracy and legal issues in counter-piracy measures by Divya Rathor, NALSAR University of Law


DEFINITION-
Piracy is a war-like act committed by non-state actors  (private parties not affiliated with any government) against other parties at sea. The term applies especially to acts of robbery and/or criminal violence  at sea. People who engage in these acts are called pirates.

The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator (e.g. one passenger stealing from others on the same vessel). The term has been used to refer to raids across land borders by non-state agents.

Piracy has been subjected to various definitions. Among various definitions of piracy some has been listed below-
  • Traditional definition-  Navigation in the high seas with the object  of committing violent acts against other  persons and property for private interests and without being authorized or permitted by any state.
  • United states Vs. Smith [1]-  Robbery or forcible depredation upon the sea animo furandi, is piracy.
The   above definitions became obsolete when it came to treating piracy as a crime. The law relating to piracy was codified for the first time in the Geneva Convention on High Seas, 1958.   Article 15[2] of the  Convention, defines piracy in following words.
             Piracy consists of any of the following acts:
        (a) any illegal acts of violence or detention, or any act of depredation, committed for private   ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) of this article.
The above definition of piracy has been retained without any without any change in Article 101 of  UN Convention on Law of the Sea, 1982.

The International Maritime Bureau (IMB) defines piracy as:
the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.[3]

EVOLUTION OF THE CRIME OF PIRACY-
  • Piracy has existed for as long as the oceans were plied for commerce. The earliest documented instances of piracy are the exploits of the Sea Peoples who threatened the Aegean and Mediterranean in the 13th century BC.
  • In the 3rd century BC, pirate attacks on Olympos (city in Anatolia) brought impoverishment. Among some of the most famous ancient pirateering peoples were the Illyrians, populating the western Balkan peninsula.
  • In 286 AD, Carausius a Roman military commander of Gaulish origins, was appointed to command the Classis Britannica and given the responsibility of eliminating Frankish and Saxon pirates who had been raiding the coasts of Armorica and Belgic Gaul.
  • The most widely known and far reaching pirates in medieval Europe were the Vikings, warriors and looters from Scandinavia who raided mainly between 793 to 1066, during the Viking Age in the Early Middle Ages.
  • Toward the end of the 9th century, Moor pirate havens were established along the coast of southern France and northern Italy. In 846 Moor raiders sacked Rome and damaged the Vatican
  • Until about 1440, maritime trade in both the North Sea and the Baltic Sea was seriously in danger of attack by the pirates.
  • During the Troubles in Northern Irelandtwo coaster ships were hijacked and sunk by the IRA in the span of one year, between February 1981 and February 1982.
  • The cargo ship Chang Song boarded and taken over by pirates posing as customs officials in the South China Sea in 1998. Entire crew of 23 was killed and their bodies thrown overboard. Six bodies were eventually recovered in fishing nets. A crackdown by the Chinese government resulted in the arrest of 38 pirates and the group's leader, a corrupt customs official, and 11 other pirates who were then executed.
  • The New Zealand environmentalist, yachtsman and public figure Sir Peter Blake was killed by Brazilian pirates in 2001
  • In April 2008, pirates seized control of the French luxury yacht Le Ponant carrying 30 crew members off the coast of Somalia. The captives were released on payment of a ransom.
  • In July 2009, Finnish-owned ship MV Arctic Sea sailing under Maltese flag was allegedly hijacked in the territorial waters of Sweden by a group of eight to ten pirates disguised as policemen.
  • On October 2, 2010, a 911 call transcript was released detailing an incident of an American tourist who was shot dead by Mexican pirates on a U.S.-Mexico border lake that has been plagued with drug cartel violence in recent years.
  • The crime of piracy, has evolved from a menace of sea to the level of crime against the humanity.

Saturday, September 24, 2011

Legalising Prostitution In India: A Kantian Analysis by Sarvesh Shahi 1st Year LLM, NALSAR University of Law


Introduction

Prostitution is the act or practice of providing one’s body for sexual purpose to another person in return of payment. The person who carry out such activities are called prostitutes. Prostitution is often described as the oldest profession. Not surprisingly, the ethics of prostitution have often been debated. In general, most people claim that it is morally unacceptable. Yet, like all such practices, it continues to thrive.

However, as a researcher, what interests me is not the last media frenzy about prostitution, but the ethics of the practice itself. Rather than take the usual approach of simply asserting it is immoral, I will consider the various plausible reasons as to why it should be considered immoral and also argue that, under certain conditions, it can be just as morally acceptable as other forms of work with the help of Kantian philosophy of liberalism.

In India, the Immoral Traffic Prevention Act (ITPA) is the only piece of legislation dealing with the crime of trafficking but it only considers trafficking as prostitution and is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is an unsatisfactory state of affairs because Article 23 of the Indian Constitution prohibits "traffic in human beings and all similar forms of forced labour". Prostitution, the oldest profession on earth is not something which the Indian society today looks up to. 

HISTORY
Prostitution was a part of daily life in Greece and represented the top level economic activities. It had been a practice in Armenia where the noblest families even gave their daughter to the service of God Acilisena. In Ancient India these girls were referred to as devadasi and were dedicated to gods. This practice later ritualized into prostitution where the girls were used as prostitutes to please the upper class people and were known as jogini. This ritual started after the fall of Buddhism in 6th century.

TRADITIONAL VIEW
In Kamasutra by Vatsayana prostitution was not considered disgraceful but was a noble profession where the prostitutes were prized by their lovers and could deny anyone at their will. She enjoyed a position of power. They were considered as women of high intelligence and manners by the Nawabs of Lucknow. They were appointed to impart training to their sons and daughters.

MODERN VIEW
In today’s world of commercialization the profession has become very callous, cruel and brutal. The profession which was earlier regarded as noble is now degraded just because of uncleanness of lust and ravage it has become a vulgar form of soul trade. There is a need to refer to the myths were the profession was regarded as noble and wake up the nation from the clutches of ignorance.



Present Legal Status Of Prostitution In India


The Law governing prostitution in India is Immoral Traffic (Prevention) Act which is a 1986 amendment to the primary law passed in 1950 {known as the Immoral Traffic (Suppression) Act}. The law does not criminalize prostitution per se but only organized form of prostitution is against the law. If a woman uses attributes of her body voluntarily and individually she goes unpunished. But the law prohibits/criminalize-

  • Seduction/solicitation of customer
  • Prostitution anywhere near a public place
  • Publication of phone number of call girls
  • Organized form of prostitution i.e. a brothel, pimps, Prostitution rings etc.
  • A sex worker being below 18 years of age
  • Procurement and trafficking of women

Wednesday, September 21, 2011

Mental Cruelty- A ground for Divorce : Its Meaning and Scope by Soumyadeb Sinha, Department of Law, Calcutta University(Hazra Campus)


‎The Hon’ble Justice of the High Court at Calcutta, H.L. Dattu, J. once while pronouncing a judgement had observed that "Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth."

All the statutory matrimonial laws in India have laid down the grounds of divorce to attain a certainty in the matter and to avoid unnecessary troubles for both the parties to a failed marriage. Of all the grounds, the most commonly sought for ground for divorce is cruelty.   

Cruelty, no doubt constitutes a strong ground for divorce of marriage as cruelty is the very antithesis of love and affection. – (2000)II DMC 126 (Cal - DB). Interestingly, however, the word “cruelty” has not been defined in these matrimonial laws, instead, have purposefully evaded to render or even to attempt to define the word and thereby limiting or circumscribing its potential. By not defining the word ‘Cruelty’, Legislature has quite rightly given the term ample scope and opportunity to grow and mature rather than being peddled by stereo-typed and straight-jacket interpretation and choke itself to insufficiency.

In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Apex Court observed, "The expression cruelty has not been defined in the Act. Cruelty can be physical or mental...” Thus the statutes have very deftly touched upon the word to include both the tangible and the intangible aspect of the term ‘Cruelty’ and left the rest upon the Judiciary to decide on the comprehensiveness and scope of the word.

The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'.

The Hon’ble High Court at Calcutta in a case reported in (1996)2 Cal HT (HC) 42 had held that it is immensely difficult to provide a comprehensive definition of the word “cruelty”.

Lord Stowell's proposition in Evans v. Evans (1790) 1 Hagg Con 35 was approved by the House of Lords and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or bodily health. He was careful to avoid any definition of cruelty.

The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as "The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."

Following from the definitions and a host of judicial decisions, it may be safe to say that cruelty, as a ground for divorce, can be classified under two broad headings of Physical cruelty and Mental cruelty.


Friday, September 9, 2011

Legal Aid Service in India by Soumyadeb Sinha, Department of Law, Calcutta University(Hazra Campus)

Concept of Legal Aid:
India is a modern state that has accepted the concept of 'welfare state'. Hence it has to work for the welfare of the general public. It is the function of the State to establish a just social order by enacting just laws and by providing equal opportunity to all to grow. Every Government is constituted to respond to the needs and aspirations of the people and to remove social inequalities among its citizens. This promotes social justice among poor and the downtrodden. The concept of social justice must be the underlying principle in the administration of justice in the country.

Today with the plethora of legislative enactments, statutory rules and regulations, and judicial precedents, Courts are a maze not only to the poor but also to a large number of persons who may not be poor financially but so intellectually on account of the lack of knowledge of the relevant laws and of the procedure for obtaining benefit thereof. They have to get out of the maze by engaging lawyers and paying their fees. This “getting out of the maze” pass is honestly perpetually not available to the have-nots, who may be termed as poor or indigent.

Resultantly, to make available the law channels of justice to the poor, free legal services have been incorporated in the legal system. The concept of legal aid to the indigent has its roots in the well-settled principle of natural justice: 'Audi Alteram Partem'.

Therefore Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Lord Denning while observing that Legal Aid is a system of government funding for those who cannot afford to pay for advice, assistance and representation said: “The greatest revolution in the law since the post-second World has been the evolution of the mechanism of the system for legal aid. It means that in many cases the lawyers’ fees and expenses are paid for by the state: and not by the party concerned. It is a subject of such importance that I venture to look at the law about costs-as it was-as such it is-and as it should be.”

By the constitutional 42nd Amendment Act of 1976, a new provision was included in the Constitution under Article 39A, for dispensing free Legal Aid. To uphold the democratic values and attain social justice Article 39A which was included under Directive Principles of State Policy (Part IV) reads as under:-
"Equal justice and free legal aid-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities".

Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.
Thus the concept of Legal aid in India has slowly but steadily acquired a solid footing in the Indian legal system and this extraordinary concept of free legal aid boils down to proving the following services to the indigent litigants:
  1. Providing:
  • free legal advice;
  • lawyers for litigation in courts;
  • knowledge on legal rights and remedies.
  1. Payment of :
  • court and other processing fees;
  • charges for preparing, drafting and filing of any legal proceedings;
  • charges of a legal practitioner or legal advisor;
  • costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
  • costs of paper work, including printing, translation etc.

Monday, September 5, 2011

INTERNATIONAL REGIME ON MARINE POLLUTION CAUSED BY SHIPS by Anoop Kumar, 1st Year LLM, NALSAR University of Law


May those born of thee, O Earth, be for our welfare, free from sickness and waste, wakeful through a long life, we shall become bearers of tribute to thee. Earth my mother, set me securely with bliss in full accord with heaven, O wise one, uphold me in grace and splendor.”
(From the Atharva Veda - Hymn to the Earth - Bhumi-Sukta)1

INTRODUCTION.

Man can not sustain his life alone and independent in this world. He has to depend upon his environment to earn his bread. Even vedas attach a paramount importance to the environment. Human beings are interconnected with the Earth, Sun, Moon and other planets of the universe. Maintenance and protection of our environment is the sine qua non of human welfare. Vedas attach an onus upon the human beings to fulfill the task of environment management, afforestation, habitation, non-pollution, protection and other pious tasks pertaining to our environment. The human beings are also endowed with the pious duty of protection and nourishment of the plants and vegetation.

But since the advent of the 18th century, that marked the beginning of the industrial revolution and subsequent breakthrough in the invention and development of modern modes of transport and communication, the task of environment protection has become more onerous and full of struggle.

That, the modes of transport and industrialisation have posed a threat to our environment, was noticed at subsequent stages of development of the nations. Both the World Wars have evoked much popular concern of the global community towards the environment. As a result various conventions and protocols have been signed and obliged to by the world community. The Stockholm Conference on Human Environment (1972); United Nations Environment Programme (UNEP); United Nations Conference on Environment and Development (UNCED) popularly known as Earth Summit and other such conventions have played their due role in shaping the International environment law.

India has some environment-friendly legislations that are responsible for the safeguard of our environment. These legislations are the Environment (Protection) Act, 1986; the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; the Biodiversity Act, 2002 etc.
Of all the ingredients of environment, the water bodies like seas, oceans, rivers, lakes etc., are of utmost essence as compared to other ingredients. But to its misfortune, most of the water bodies are at the verge of extinction. The water bodies are no more suitable for the daily household uses, thanks to mass contamination caused by various factors like industrial wastes and other garbages.

If we go through the international statistics, ships and vessels have contributed a lot towards the contamination of the sea, along with their contribution in narrowing the down gaps between two far-flung destinations.

INTERNATIONAL CONCERN OVER ENVIRONMENT PROTECTION.
It is not a very easy task to define the environment in the international regime. Even most of the treaties, declarations, code of conduct, guidelines etc. fail to define the term ‘environment’ in a very explicit way. It is a very tedious task to outline and restrict the scope of such an ambiguous term. The Declaration of the 1972 Stockholm Conference on the Human Environment (UNCHE) merely refers indirectly to man’s environment and adds that the natural and man-made aspects of man’s environment are essential for his well-being and enjoyment of basic human rights. Even the 1992 Rio Declaration on Environment and Development refers to environmental needs, environmental protection, so on, but nowhere does it identify what these include2. The European Commission, in developing an ‘Action Programme on the Environment’, defined ‘environment’ as ‘the combination of elements whose complex inter-relationships make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they are felt’3.

Saturday, September 3, 2011

Public Interest Litigation in India: Its origin and role in the society by Soumyadeb Sinha, Department of Law, Calcutta University(Hazra Campus)


Meaning of Public Interest Litigation with reference to High Court and Supreme Court Judgments.
Such is the disillusionment with the State formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation. In Indian law, public interest litigation means litigation for the protection of the public interest to advance social justice.

The words ‘Public Interest’ mean “the common well being also public welfare” (Oxford English Dictionary 2nd Edn. Vol. Xll) and the word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy."

According  to  Black's  Law  Dictionary- “Public  Interest  Litigation”  means  a  legal  action initiated  in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

Thus, the expression ‘Public Interest Litigation' means "some litigation conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redress of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).

Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/184.html

BAJAJ AUTO LTD. Vs. T.V.S. MOTOR COMPANY LTD. - A Case Study. by Anoop Kumar, 1st Year LLM, NALSAR University of Law


INTRODUCTION.
The case involves the issues of patent infringement by the defendant and the damages for the same. But the case, further, touches upon the controversy regarding justification of the threats issued by the defendant of the same case. The case was filed before the Madras High Court in 2007.
The plaintiffs in (Bajaj Auto Ltd), along with the state of Maharashtra alleged the defendants (T.V.S. Motor Company Ltd.) of infringement of the patents of the plaintiffs, which concerns the invention of the technology of improved internal combustion engine. The remedy sought by the plaintiffs is that of permanent injunction1 for prohibiting the defendants from:
  1. using the technology or invention described in the patents of the plaintiffs; and
  2. preventing them from marketing, selling offering for sale or exporting 2/3 wheelers (including the proposed 125cc TVS FLAME motorcycle) that contain the disputed internal combustion engine or product that infringe the patent. They also claim damages for infringement of the patent.

The suit was pending. Meanwhile, the plaintiffs brought application before the same court seeking temporary injunction against the defendant for the same relief, which was sought in the suit for the permanent injunction. The application was filed for preventing the infringement of the patent till the pendency of the suit.
The defendants in the case filed a suit in the court2 for preventing the plaintiffs from issuing threats that the plaintiffs are infringing the defendants’ patent, through various mediums to and thereby interfering with the launch of their product (TVS FLAME) by the plaintiffs.
The suit was pending before the court. Meanwhile, the defendants filed an application for preventing the defendants, till the suit is pending, from issuing threats and thereby interfering with the launch of their product.

The case study deals with the substantive aspect of the suit in light of the provisions of the Patents Act, 1970. Moreover, the study also includes various tests evolved by the Supreme Court in the case.
The importance of the case is that, in the recent decision of the Hon’ble Supreme Court, the focus has been laid down on the quick disposal of the temporary injunction and direction to the Madras High Court for quickly disposing off the matter.


BRIEF FACTS OF THE CASE
The facts of the case go through the various stages:
  1. Bajaj’s patent. Bajaj Auto Limited (the appellant) claimed that it was granted patent titled “An Improved Internal combustion engine working on four stroke principle” with a priority date of 16th July 20023. The patent was granted on 7th July, 2005.
Features of the invention are:
  • Small displacement engine as reflected by a cylinder bore diameter between 45 mm and 70 mm.
  • Combustion of lean air fuel mixtures;
  • Using a pair of spark plugs to ignite the air fuel mixture at a predetermined instant.
  1. What was the Patent all about? The subject-matter of the patent, the invention by the applicants called DTS-i Technology was relating to the use of twin spark plugs for efficient combustion of lean air fuel mixture in small bore ranging from 45 mm to 70 mm internal combustion engine working on 4 stroke principle.

  1. Tests of Patentability. According to the applicants, their invention was patentable because it qualified the tests of novelty, non-obviousness and industrial application. Following were the grounds on which the applicants corroborated their claim:
  • The use of two spark plugs in large bore engines or in high performance or racing bikes was known in the Automobile industry. But the invention of the appellant was not known in the industry.
  • The applicants claim that the need to have more than one spark plug was never thought necessary in small bore non-racing engines. Even if it was felt so, no advantages of a dual spark plug were observed. The invention of the applicant was on the application of twin plugs in small bore engine with positive merits of improved fuel efficiency and emission characteristics. In case of the small-bore engines using twin spark plugs, those engines were not lean burn.
  • In the first eight months of the that financial year, “DTS-i Technology” accounted to 54.25% share of Bajaj two wheelers. Applicants claimed that they spent considerable amount in marketing and advertising and received appreciation through out the world as recipients of various world awards and the product is of economic advantage of the country. 
  1. TVS launches FLAME- the Bone of Contention. The Respondents, (M/s. TVS Motor Company Limited) announced to launch motor bikes of 125-CC on 14th December 2007 under the trade mark 'FLAME'. The motorcycle was powered with a lean burn internal combustion engine having a twin spark plug configuration, which according to the Bajaj Auto Ltd., infringes its patent.
Therefore, before the launch of motor bikes, the applicants brought the suit before the court to protect their patent.

  1. TVS files suit under section 105 and 106 of the Patents Act, 1970. In October, 2007, the respondent filed the suit before the Madras High Court4, alleging that the statement made by the applicant constituted a groundless threat.
They learnt that the respondent has also filed a suit for defamation against the applicant in the Bombay High Court.

  1. Application for revocation of the applicant’s patent. The applicant also came to know that only 7 days before the launch of the proposed 125-CC motorcycle, the respondent filed an application for revocation of applicant's patent before Indian Patents Appellate Board (“IPAB”)5.

  1. Launch of the disputed bike. The respondents, later in the month of December of 2007, launched the bikes without making any change into that.

Tuesday, August 30, 2011

India-global developments by Mr S. Lakshma Reddy, Advocate, High Court of A.P.


global developments-controversy of growth vs inflation in india:
Recent events as the after math of 2008 global fiancial crisis,more particularly ,growing concerns about US and European debt as well as sovereign debt crisis situations and further more recent down grading of US credit rating from AAA to AA+ stage and its likely effect on the global confidence of US dollor as world reserve currency and the likely impact on indian economy and polity and the what policy ought to be adopted against what policy is being adopted is the point for consideration in this brief article.

Theorically, If there is a perfect global free competitive markets across all political borders,there is no possibility of any global financial or economic crisis situation as the rational behavour of owners of factors of production with perfect information on prices of production of all factors of production move to places of investment destination which allows them reap the profit maximisation to bring about global equalisation of profits, and wages rents or interest on capital and dissipate the crisis situation. this law is applicable with domestic markets as well as global/internationall markets.

A genuine global efforts to dismantle the trade obstructive political borders across all countries to promote global free markets under a global sovereign preferably reformed UN while not much disturbing the local automous city states,tribal states,nation states with guaranteed civil and political rights to their own citizens to bring about a genuine global citizenship on earth, to distribute the gains of tecknology to all global citizens irrespective of national origin should be the political agenda of new generation politics.

But in reality, the perfect competitive market environment is neither available any any country or global economy and imperfect comeptitive and infact monopoly practices at the instance of non state as well as state actors are all pervading across global national borders. No country is exception to this rule except the relative degree of free competitive markets and with it, its concomiitant legal structures encouraging or discouraging the global free competition. India was and is more afflicted, though better since 1991 policy reversal, with the imperfect competitive markets than the global average.The growth and inflation,corruption is to be dealt with in the light of this basic parameters.

Given the political and economic parameters and demographic composition of global population with their own traditional prejudices and aspirations, India should act within the crisis period to meet the global challenges, towards realisation of its potential energy through appropriate policy prescription. It should ever review its political ,administrative structures,instituions,leadeship questions, econnomic institions, controlling property structures, both existing legal and constitutional provisions so that no wastage of national energy on unproductive things takes place.

US has the best constituional and legal machinery fitted for a nation state but has outlived its utility in the face of globalisation challenges and the politicians and public opinion have refused to change their political outlook to go along with globalisation process by sticking to national interests in opposition to the tidal wave. The global financial crisis in US and Europe is an offshoot of this mindset not to change to globalisation phenomena with same speed of its own tecknology towards more global free competitive markets in all factors of production and its persistence in pracising the more pronounced protectionism in all areas of market economy and only encouraging the free competetion in banking and fanancial sector as is manifested in the attitudes of US and Europe stands in Doha round negotiations in WTO on agricultue,on movements of sevices,outsourcing, through restrictive immigration laws, through restricitve tecknology tranfers and intellectual propety issues, on aid to millennial development goals etc, and more particularly its attitude towards UNO,UNsecurity council democratic reforms.This lesson should be kept in mind by all law and policy makers in all countries across globe including India aspiring its own wayof global leadership.


Follow Mr S. Lakshma Reddy, Advocate, A.P. High Court at http://slakshma.goforthelaw.com

CRITICAL ANALYSIS OF THE JUDGEMENT PASSED BY THE DELHI HIGH COURT IN THE NAZ FOUNDATION CASE: Arguments against Decriminalisation of Homosexuality by Soumyadeb Sinha, Department of Law, Calcutta University(Hazra Campus


On The Indian Penal Code
By the middle of the 19th century A.D, India was well under the clutches of the British Raj. Several laws were passed, the majority of which are still in force in India, accepted by the Indians and which have stood the test of time. One such important law promulgated by the British was The Indian Penal Code.

The draft of the Indian Penal Code was prepared by the First Law Commission. It was chaired by Lord Macaulay. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Suggestions were also derived from the French Penal Code and from Livingstone's Code of Louisiana. The draft underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice, and the Judges of the then Calcutta Supreme Court who were members of the Legislative Council, and was passed into law in 1860. Unfortunately Macaulay (1800-1859) did not survive to see his masterpiece enacted into a law.

Such is the grandeur of the classic Indian Penal Code that even at a time when anti-imperialistic fervor conspired with fanatic nationalism was hell bent on pulling down any symbol of imperialism, the Code stood its ground not only in India, The Indian Penal Code has been inherited by Pakistan and Bangladesh, formerly part of British India and has also been adopted wholesale by the British colonial authorities in Burma, Sri Lanka, Malaysia, Singapore and Brunei, and remains the basis of the criminal codes in those countries.

Over a period of 150 years the Indian Penal Code has served the Indian society mutatis mutandis and today it faces another test of its pertinence in the modern world, the debate raging about the constitutional validity of Section 377 under Chapter XVI “Of offences affecting the human body”, categorised under the sub-chapter titled “Of Unnatural Offences”.

Section 377 of Indian Penal Code:
The sections states as follows:
“Unnatural offences.-- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Ingredients of the Offence:
The essential ingredients of the offence under Section 377 are as follows:-
(a)        Accused had carnal intercourse;
(b)        Such intercourse was with any man, woman, or animal and
(c)        It was against the order of nature.

Judicial interpretation of Section 377
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section.

In Khanu v. EmperorAIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”

It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices.
In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.”

In Calvin Francis v. Orissa1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria.

In Fazal Rab Choudhary v. State of BiharAIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.

Hence the Section in question criminalises sex other than heterosexual penile-vaginal intercourse.

A short essay On Human Rights with an Indian perspective by Soumyadeb Sinha, Department of Law, Calcutta University(Hazra Campus)


The Concept of human rights is as old as the ancient concept of natural rights based on natural law. The expression “human rights” is of recent origin emanating from international charters and conventions especially in the Post Second World War.

But these rights had been recognized and respected by all religions in the ancient India.
It could be found that the Rig Veda cites three rights as basic human rights, namely, Body, Dwelling place and Life. The Maha Bharata speaks about the importance of freedoms of individuals in a state.

It also sanctions revolt against the king who is oppressive and fails to perform his functions of protection.
In Manu Samhita, Manu developed three notions of Civil, Legal and Economic rights. Buddhism and Jainism emphasized the principles of equality and non-violence.

Muslim rulers even formulated rules for the protection of women and children during war. Emperor Akbar took certain measures for the protection of the rights of the citizens.
However, the first serious move was initiated by the U N General Assembly in December 1948 to protect human rights by adopting “Universal Declaration of Human Rights”

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”                    
                                                              —Article 1 of the United Nations Universal Declaration of Human Rights

Human rights are "basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status." Human rights are conceived as universal and egalitarian, with all people having equal rights by virtue of being human however these rights may exist as natural rights or as legal rights.

Charles RBeitzin his book,The Idea of Human Rights, says that: “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights.”
However, Human rights were defined first by the Scottish philosopher, John Locke (1632-1704) as “absolute moralclaims or entitlements to life, liberty, and property”.

We find the best-known expression of human rights is in the ‘Virginia Declaration of Rights’ in 1776 which proclaims that “All men are by nature equally free and independent and have certain inherent rights, of which, when they enter a state of society, they cannot, by any compact, deprive or divesttheir posterity.”
The principles of Human rights are not to be construed as a bunch of high-strung ideals of international law for the establishment of a utopian society, rather it is to be found and engraved in our daily lives to ensure a better and brighter future for mankind by creating an environment which would be conducive for the free and proper development of the human mind and soul.

Origin of the idea Human Rights:
Though the Rig Veda contemplates the bedrock of Human Rights in its earliest meaning, with the coming of the Later Vedic Age and the society being divided on the basis of ‘Varna’ was evidence of the mere mockery of the earlier concept of human rights.

The ancient world did not possess the concept of human rights in the modern sense of the term. Ancient societies had "elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights" and so much so that in Ancient India, China and Greece, some of the most cultured and civilized races in the ancient world were open to the practice of slavery. Even in the pre and post independent United States of America, slavery, one of the vilest forms of Human rights violation was rampant.

However gradually with the passage of time human rights violations of various forms were being recognized and such practices were no more being tolerated under the blanket of “tradition” and “custom”.

The modern concept of human rights was developed during the early Modern period and the true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition, became prominent with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution (1776) and the French Revolution (1789). These Two major revolutions during the 18th century brought forth the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.
—United States Declaration of Independence, 1776

Such developments and documents merely laid down noble ideals and thoughts but these were far from being implemented and realised to their fullest potential.

In the 19th century, human rights became a central concern over the issue of slavery. A number of reformers, such as William Wilberforce in Britain, worked towards the abolition of slavery. In the United States, President Abraham Lincoln rallied against the southern plantation owners’ practice of employing slaves which culminated in the outbreak of the Civil War. After the war  the 13th amendment, banned slavery, the 14th amendment, assured full citizenship and civil rights to all people born in the United States, and the 15th amendment, guaranteed African Americans the right to vote. A very bold and handsome step towards securing human rights indeed.

 In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labour. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers- one of the most influential being Mahatma Gandhi's movement upholding the principle of Ahimsa, i.e. kindness and non-violence towards all living things, as the guiding force.
The idea of Human rights was unknown to all was building in such a background but it still did not enjoy an international recognition.

The outbreak of the two World Wars, and the huge losses of life and gross abuses of human rights that took place during them, were a driving force behind the development of modern human rights instruments. The “League of Nations” was established in 1919, following the end of the 1st World War and enshrined in its charter a mandate to promote many of the rights which were later included in the Universal Declaration of Human Rights.

At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role; this was to be the United Nations. The United Nations has played an important role in international human-rights law since its creation.

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