Thursday, March 24, 2011

Farmer suicides-causes and remdies

Introductory:The farmers suicides was an aspect which has compelled me to study the causuative legal and economic  factors in an overall  political and economic globalisation and came to the conclusion that the underlying rigidity attached  legal and ecoomic rights of  ownership,possession, and control and management of farmer as owner cum possessor as all- in- one- person is resposnsible for low productivity and price irresponsiveness leading to indebtedness and helplessness with no other remedies left open to him in the legal and economic  system and that this all- in- one- farmer has to be tranformed to legal ownership rights  as seperate from possession and management rights as has happened  in industry. this led me to further  conclude to devise a model for seperation of right to   legal ownership of farmer  from the possession and management of rights in land to free the farmer from immobility and to induce price responsiveness,to  promote capitalist  and corporate relationship in agriculture and its consequensual equi -distribution of developmental entitlements so as to unleash the advanced productive forces and producitivity on par with industry on global scale.

question no 1: The question arises as to how this all- in- one in farmer is responsible for low productivity,lack of price resposiveness leading to indebtedness and helpelssnes with no other avenues left open to in the legal and economic system?

and question no 2:  how the seperation of owneship rights from possession and management of land will over come this state of affair and lead to advanced productiveforces in agriculture and productivity and its consequencial equ distribution of developmental entitlements.?
  Aamsmith and division of labor:Adamsmith equated the division of labor as an index of level of develoment and productivity. division of labor implies specialisation of labor and employemnts. a specialistion of labor and employment implies   product specialisation and abridgement of labor time per unit product and their by continual abridgment of overall labor and capital  costs of production with technological developments. But he opined that this division of labor is not possible in agricuture and he has not entered in to any enquiry in to the alternative modes landed property relationships where this division of labor compatible even in agricultural landed property.
division of labor is  incopmatible with the farmer as the exclusive owner  of land as well as labor in his own field as an all in one which itself is subject to vagaries of uncertain natural seasons and there fore it was not possible to enhance its productivity to the level of industry and its pattern of production.

By the time of Adamsmith, the corporate companies with joint stock capital ,of its height in east india company and the banking and  financial  and other stock markets were already known and practised but it was the opinion that such corporate structure is not possible in agriculture due it's nature of property in land as an immovable nature and the nature of  exclusive ownership of farmer which include the possession and managenet
some experiments on the lines of cooperative farming, joint land stock farms were made where collective/corporate  ownership or or joint ownership or coperative parnership type owneship where people pooled the land capital and labor together and worked together  to share the product and profits in defined manner.But they have proved to be inefficient and counter productive abondoned in many countries. what went wrong with these models?and how individual holding as a general form of agricultural farming has become the rule in an universal form. and how this general form is turning the obstacle to growth and development  of farmer as well as the nations in the globalisation process.?.

Before we answer those questions, we have to analyse the process of production, its marketing,its different component parts and their legal rights,duties, and entitlements  in agriculture and its difference with industry.
 in agriculture as well as in industry, the combination of  factors of production is a condition precedant. land/land owner/land lord, labor/owner of labor /laborer and capital/owner of capital/capitalist. for production of any commodity for sale in market. we assume that market monetary  relationship is predominanat in agriculture in the sense the farmer will produce the goods for market and purchase the goods in market for his own consumption.
we know that the owner of land as well as owners of other two factors of production will normally try to maximise the productive power of their own factor and try to maximise their his own interest when he enters in sale or prchase contracts with other owners or or their agents.we call  this in legal jargon the prudent man or reasonable man approach in contracting or avoiding any statutory or other liabilities as well as acquiring any statutory benefits or even in tort jurisprudence.
 the ownership of land is to be subdivided in to  ownership of land and ownership  of rights in or over the land and its use. Ownership of rights in or over the land use  is an inclusive definition where any right conferred or contracted may be added.and the sum total of all rights should add to value of ownership of land.or  the total rights of owner of land.
Lease of land to tenanat is contracting of mere limited right to exclusive possession with enjoyment for specified time in exchange of negotiated price/rent  offered and accepted by the owner of land or his agent. so lso the licencee of previlege conferrd or contracted to enjoy the right to possession for specified period for price/fee offered and accepted by the owner of land.  mortagage is also a tranfer of limited right with or withour possession subject ot such terms and conditions as the parties may agree with on exchange of money or capital to the owner of land.similiar relationships of innumerable character may be created and entered by the owners of right to factors of production or marketing in the shape of parteis to contracts in exchanging the rights in the nature of monetary or tangible or intangible properties.
In all these transactions of parties, one common element all pervading is the concept of law, rule of law which recognises and enforces the contracts or other relationships through its machinery of law courts and other forums while the law permits,creates,and recognises and extinguishes  the rights.
This brings us to analyse the common and distingushing aspects of law of property in land ,property in capital, property in labor.
 We have noted that division labor is an index of development and producitivity and such division of labor is found to be incompatible with agricultural landed property and productions system with owner cum possessor cum manager cum worker  of  agricultural farms which is also higly dependent on natural seasons.
In industry, an employer purchase /hires the labor for money or other equivalant  to produce the goods for market and in the market sells the produced  goods for money to make a profit out of his enterprise.He always try to maximise the profit by minimising the costs of production taking the market price as given.If his average costs of production is more than the market price at which he sold the goods he will suffer loss and go out of business or become bankrupt under the insolvency act.If it is corporate body, the same holds good except that the liability of share holder being the limited by shares and burden of losses are spread to its creditors and other agencies including the state. so the bottom line for individual capitalist or corporate body in market competetion is the average cost price to be equal to price of commodity sold.
The management and control  structure in industry or corporate bodies  is based on the divorcement of ownership from management and control.The ownership of corporate body as a seperate entity with right to sue and be sued on its own name  is different from ownership of shareholder.the control and management is is vested in general body of shareholders and board of directors and its executive agent the chaiman and managing director  or other delegatees.The boards of directors and managing or executive directors may be drafted from expert professional managers of their own concerned fields including marketing and other branches.The managemt courses have become top class paid  jobs in modern corporate world of businessess.This is a reflection of   Adamsmiths' an expanding field of division labor and emloyment and abridgment of labor time
 The ownership right over the land  has not been divorced from right to possession,management, and control. He is the owner,possessor,manager,producer, marketer, and controller.He alone has the right to sue,to be sued in his own name.He has no advantage of limited liability. he has no education,capacity nor the necessary capital to employ paid expert directors or managers of production as well as marketing.Neither has the credit worthiness with banks to raise necessary capital  to work on modern methods of production and management to minimise the costs of production so as to be able sell his product in  the market with profit as a  market strategy .The land ceiling laws, legal restrictions on the transfer and use of  agricutural land as well as to raise the capital on the security of agricultural land from banks and financial institutions, are some instances of obstacles to convert agricultural land ownership rights to  corporate ownership models and himself to gain the personal freedom  of mobility from the bondage to land and its personal cultivation. The indian economy now dominantly being integrated to global markets and  indian agricultural product price behavior is increasingly being subjected to global markets' supply demand fluctuations. The non responsive indian farmer to these fluctuations due to his farm sizes,traditional farms cultivation and management, accounting behaviour is at greater risk of losses than gains and consequential debt trap and loss of land and livelihood and security to his  life  and liberty in the social life.

He has no guarantee of limited liability like in industrial or corporate law. his liability for his entreprise is unlimited and in case of debts to lending banks or other private agencies, they can also get the farmer detained in civil prison for not dischaging his civil liability apart from putting the land to sale in open auction .He can not aquire more land than land ceiling law permits, he  can not  terminate the lease of land without legal permission from competent authorities and cannot refuse to pay the minimum agricutural labor rates in locality, has no power  to borrow industrial or business loan on mortagaging his land.In the result, he is tied to land as the owner as well as possessor, manager and labor i.e all in one combined person which is incompatible to division of labor like in industry.
The mangement and control structure in farm management is not based on divorsement of ownership from management and control.It  is incompatible with corporate structure and its rights, previleges, and liablities both under common law and statutory law. it is not based on business model  or its accounting model which is a must in a  market determined price based on free competetion with fredom to entry and exit farm cultivation business and minimise thecost production while maximising the profit out of business . In a traditional model now adopted in india,owner himself has to own, manage, control,  with right to sue and be sued  and suffer consequeces of own acts and omission as well as involuntry inexorable effects of  acts and omissions of markets and governments. he has no resource to know the market or other relevant information or market statics nor the capacity to acuire such knowledge.

New model:  There fore, the root cause of farmers continous defaults in mantaining his agricultural business is the incongruence of his farm model now adopted in india and most other countries including the china and there is need to change the agricutural policy to the new model of divorcing the right to  ownership of land from right to possession and management of land as suggested by me or any other model akin to it to fall in line with globalisation of markets and market prices.(for more elaborte reasons plese see my article on  land reforms -globalization.( by S. Lakshma Reddy

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Monday, March 14, 2011


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 aliahuman 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.

For more by Soumyadeb Sinha(4th yr.) Department of Law, Calcutta University(Hazra Campus)

Monday, March 7, 2011

"Good death" or "bad life" by Madhubanti Sadhya

How painful and excruciating can life get that one wishes to put a premature end to it? Who decides whether we should live or die when embracing death seems far more soothing than an agonizing existence which cannot be termed as ‘living’ in the true sense of the term? Well in a country like ours unlike Netherlands, Luxemburg, USA, United Kingdom where euthanasia or ‘mercy killing’ as it is known in common parlance, either in its active or passive form has been legalized, we let nature take its course.
            Aruna Ramachandra Shanbaug, who has been confined to one of the rooms of King Edward Medical College, Mumbai for the past 37 years has earned the world record of being the longest staying patient in any hospital. But this is definitely not the reason behind her being the talk of the town. She has been ‘living’ in a vegetative state, her eyes staring voidly at nothing in particular since the night of November 27th 1973. The reason being a ward boy who had tied a dog chain around her neck, thereby cutting off air supply to parts of her brain and had sodomized her in the basement of the hospital.
          Journalist-activist,  Pinki Virani’s plea of euthanasia for Aruna Shanbaug has once again raised the question in our minds-How merciful and benignant is our judiciary and if Article 21 of the Indian Constitution guarantees to its citizens the right to live with human dignity then why are the terminally ill not awarded a dignified departure from their distressful and discomforting lives?
         The Union Government has rejected the Law Commission’s recommendations on euthanasia.The commission in its 126th report had recommended to the government, “if a person is unable to take normal care of his body or has lost all senses and if his real desire is to quit the world,he cannot be compelled to continue with a painful life. Hence a dying man who is terminally ill or is in persistent vegetative state can be permitted to terminate it by premature extinction of life.”  G E Vahanvati, the attorney general of India thinks otherwise. He has been quoted as saying that western norms are not applicable to Indian conditions and culture. Moreover the plea for euthanasia if granted may be misused by the relatives of the patients in collusion with the doctors. Amicus curiae and senior advocate T R Andhyarujina is of the opinion that the nurses and staff of KEM hospital who have taken care of her for 37 long years have made no such plea. This is where the problem lies. The hospital’s counsel, advocate Pallav Shisodia too has opined that since the nurses and staff have made no such plea, the petition submitted by Virani should be dismissed.
         Dr Ravindra Dhelia, a member of the Society for the Right to Die with Dignity says, “Voluntary euthanasia is not about ending a life but it is about ending a deadened survival. As far as Aruna is concerned, mercy killing is a dignified exit.” But Sanjay Oak, dean of KEM hospital begs to differ.KEM has issued a factual counter-affidavit stating, among other things, that Aruna is “haemodynamically stable”, her “blood pressure, pulse rate are normal” and that the hospital is taking care of her because her relatives refused to do so.
        Some questions still remain unanswered- who decides whether death is more precious to some than mere animal existence? Whose views should be taken into account if at all euthanasia is legalized in this country-the patient’s or those who look after him? Which of the two is more painful-to see one who is terminally ill slowly pass into oblivion or to be in such a state which guarantees no dignity but is still called ‘life’? Undoubtedly Aruna’s case is dicey. Although Pinki Virani’s intentions are not malafide the question that the dean of KEM has raised is,”unless the ailing person himself or herself expresses the desire who are we to decide that he or she should no longer live?”
         Aruna may be considered lucky in one way or the other since her plight has seen the light of the day. There are several cases in our country and around the world where death has taken its own sweet time to ease the sufferings of those for whom one extra breath that they take is more horrendous than death itself. Undoubtedly the right to live with human dignity does not guarantee us the right to end our lives according to our whims and fancies but is the life of a man in a persistent vegetative condition worth living? Until euthanasia is legalized in our country I am forced to ask the million dollar question again ,”does the life of a terminally ill patient come within the purview of the term ‘life’ as we understand it under Article 21 of the Indian Constitution”? If the answer is no then it is high time that this country does something worthwhile in this regard.

Sunday, March 6, 2011

Telengana issue- demand for smaller states

Hegel famous statement that:"state is the march of God through history" is more apt to a technology led globalization era and globalize world than ever before. It is a march of public power in a globalize world to transform it self in to the Godly global soverign power subordinate to God and to none else individually. This is the  towards one end of global centralization of public power. But there is one more dimension to the globalization process. It is human character i.e.  realisation of self, autonomy and right to self determination, freedom and security and pursuit of ones own happiness. This is democratic decentralization of power and privatization and privacy rights. The demand for smaller states has to be understood from this perspective and resolved.

Globalization-state craft: While globalization is an inevitable process, given the peaceful transformation of global socio-economic and political issues arising out of the inevitable process, the smart state craft lies in understanding this process and set in motion socio-economic and political reforms including the demands for the changes in forms of governments that promotes country to higher level of socio economic development than the global average indexes.

politically united India- independant judiciary: What means is a question of country specific and for India to overcome historically proved political disunity as one of its greatest deficiencies, this process has to be in line with a free market economy with strong politically united democratic and secular central government with equally strong decentralized local governments that promotes local autonomy and democratic choice as a checks and balances against any tyrannical abuse of central or local political power.
Free markets doesn’t mean freedom to manipulate political and economic powers to subvert the  market prices, regulatory discretionary powers , constitutional rule of law  through corrupt practices and existence of  independent judiciary to check the abuse and corruption of such public power which include the corporate public power, political parties, religious bodies Power has to be institutionally built in.

Therefore, recognizing and forming of smaller states in the historical Indian context, and legacy of smaller princely states, territorial provinces with their own distinguishing social-cultural kinships and bonds, for sub national local political autonomous units under the politically united federal, strong constitutional rule of law is not against the national security or economic development. On the contrary, Refusing to recognize, or derecognizing by force is counter productive to the constitutional goals of assuring every citizen of justice social, political, economic rights and its adverse impact on the economy and its free market prices as the rule of law.

AP state governmental form: conundrum:Take an instance of AP. This is formed by incorporating some territories from British ruled sarcar coastal districts and ceded rayalaseema districts with portions of erstwhile Hyderabad princely state after its merger with Indian Union. This is a political union of three different regions with their own distinguishing socio cultural kinship and bonds and the common factor being the language Telugu. The political union has not brought the desired  integration of socio cultural kinship or bonds and even the language has its own distinct slang even after 60 years of state formation and continues to separate them on regional lines. Political union has the net effect of democratic majority in legislative assembly and councils to once madras state “seemandra” and its effect is the political and executive control of state by seemandra representatives and its abuse in matters of discretionary powers  like awarding contracts, state subsidies, exemptions in trade and  business matters, in land acquisitions and housing schemes, mines and mineral and making appointments to the posts and offices under the state and public undertakings by practicing lack of transparency and accountability  due to the  inherent defect in our parliamentary form of government where the executive and legislature is combined in same party and Chief Minister or Prime Minister.Net effect is galoring of complaints of one region of  being colonized by other dominant region with no socio- economic kinship  or cultural bonds. This is so in many cases of demands for autonomy/ independent statehood in many parts of India. Telengana issue is an old one among the many such common demands for independent self governing statehood under the constitutional federal protection.

National security, economic development is not to be lost sight of. But the defects in the governmental form as it exist as the main source of corruption and regional discrimination is also not to lost sight of to bring peace and restore the “just” unbiased rule of law with in the nation as one politically and economically united  fedral state. . State is only a means to an end but not an end in itself irrespective of its constitutional ill effects in any state.

The father of nation Mahatma Gandhi has visualized the gramswaraj as the test of true democracy.I have discussed some of the salient features  market reforms(  debate for national consensus: issues” to be brought in through constitutional, legal, political and economic reforms with corresponding rights and remedies to the citizens for the  realization  right to life, liberty and social security and  gramswaraj with in the globalization era and the onward of march of  global state as the march of GOD/TRUTH/POWER/KNOWLEDGE on earth in history.

by S Lakshma Reddy, Andhra Pradesh High Court, India. Follow him at