liberalisation-Globalisation-need for second democratic land reforms by Mr S. Lakshma Reddy, Advocate, High Court of A.P.

Liberalisation of government control and opening of Indian economy to global markets: Need for second level democratic agrarian reforms to eradicate poverty and unemployment,  to save farmer and democracy.              


Land reform laws and liberalisation: 65 to 70% of Indian population in contrast to many developed world of 2 to 3% live in rural and semi urban areas and depend on subsistence agricultural economy.The land reforms and land ceiling laws have privatised the land and conferred ownership rights on small farmers and tenants. well this agrarian reform was a step in democratisation of political, economic resources of the country for dignity,independence and development of farming community as a whole against the then feudal intermediate exploiters.But with liberalisation of markets to global competition, this once democratic agrarian reforms has now become bottleneck to their own freedom and development and has become a swirl pool of mass poverty unemployment,debt trap and unhygienic neibhourhoods and abetment to suicides.


Dishonesty of politicians and political parties:Our political system, politicians are adopting the vote catching and paternalistic approach to empower themselves with more power over such dependant mass poverty by false and dishonest promises of dolls from the state coffers and projecting it as if it is their personal credit, good somersault that such benefits are dolled to them. we observe this with all political parties without exception. some take extreme forms of mass corruption of public funds to spend, to trade on the poverty of huge sections of our people.This is producing dishonest and criminal mentality , mass cheating in politicians and burocracy, from head to bottom of political parties in their competition for survival for capture of governmental power.
This is not good to democracy or economic survival of country in the global competition in this globalisation era.
We need to diagnose the cause of the disease and prescribe proper medicine or else our succeeding generations may fall in to once more slavery conditions. Beware of politicians who are trying to trade with the poverty of our masses with out constructive ideas!


causes of the disease: lack of education and self employed small and middle class ownership holdings in agriculture and businesses is the cause of low productivity,irresponsiveness to market price fluctuations, immobility and poverty.It has all trappings of subsistence ecnomy.He cannot conduct the agriculture on business principles.he has no business accounting practices. he wont calculate the family labor.He would not calculate the interests on capital invested on land towards its purchase or notional purchase and the rent it to derive and the alternative opportunity costs to his loss of wages or income to his labour or skills, and he cannot yet exit the agriculture or business as he has no other alternative employment to fall back and will be forced to sell his product in distress sale below his production cost prices in adverse market conditions and continue to live in poverty attached to land and village. With new tech consumer items like cell phones, though his communication channels increased and with it his level of knowledge of society and market, it is increasing his monthly bill payments without better employment and incomes.


Last week i went on a small vacation trip to Dharmashala,Dalhousie Pathankote via Delhi Panipat  Chandigadh  by bus and car,auto. I had made such trips to different parts of north and south India from kanyakumari to Kashmir and Jiasalmir to Gouhati, Himayan hilly regions of Arunachal pradesh and Sikkim Gangtok, Kulllu, Manali.The greatest part to be observed from these trips is great unity in diversity of the country, in fact as a mini-world in itself.But equally discomforting to me was the colossal poverty side by side super rich, unhealthy and unhygienic neibhourhoods on roadsides and inside the towns and rural habitats.Food items exposed to roadside dust are sold by small business vendors. they could not have other source of employment out side their small vending.it would appear to me that it is not fitting with  minimum standard capitalistic entrepreneurship and mobility and their business is no less than the subsistence farmer in rural India.. in my personal observation of living conditions of people in most parts of rural India, the problems related to economics of their household as well as the small business' environment in their neighbour hoods are all most of similar pattern despite huge ethnic, cultural, linguistic, religious, and social geographical diversities from Kashmir to kanyakumari,Jaisalmir to Gouhati.All of them are maintained in very unhygienic conditions. though it is hand to mouth, and  often lapsed in to debt with money lender, he cannot leave for better avocation because he has no better skills nor any employment opportunity outside. similarly food venders on foot path etc. These problems are like hen -egg cause effect relationship.Similiar is the position with subsistence farmer in country side.he cannot leave his land though it is not a profitable avocation as he has no opportunity to any fixed hours employment in public or private sector, either in country side or urban cities suited to his qualifications and social status. It is like that he has to live on his land in this subsistence conditions under the perennial debt trapped conditions and poverty because he has no better other alternative employment opportunity though he may be ready to do any work suited to his qualification.


Diagnosis of the disease: Liberalisation and privatising,integration of Indian economy to global economy is in right choice and in right direction. Once we liberalise our economy to global competition and market forces,every part of economy i.e. industrial, agricultural and service sectors must be tuned to the with stand the global market forces and market price fluctuations,and our democratic political structures,legal and property rights as well as the legal remedies under the constitution and laws must be so fine tuned to seize the opportunities and overcome any bottlenecks to meet these global challenges all other things being given,the operation of free markets have the tendency to shift the individual labour time and values of a small and inefficient producers and other market players to more productive efficient operators in market value -price mechanism which determine the market prices and therefore a natural tendency to push the subsistence farmer from out of markets and to unemployment. there fore following factors have to be kept in mind while bringing the agrarian reforms.
1) The inequality arising out of value- price mechanism in market exchange relationships
2) effects of this inequality on small ownership self employed subsistence economies to increase the poverty,unemployment, ,disease and unhygienic neighbourhoods
3)The low capital to labour ratio in agriculture and lack of division of labour due to this small ownership holdings.similiar is the position with small household traditional industrial ,shops and establishments resulting low productivity
4)lack of opportunity to adopt modern methods of production and management and accounting methods
5)inability to adopt to the modern minute division of labour and specialisation
6)The effects of these factors on the freedom and security to life and liberty and property of such subsistence farmers/businesses in any given political system with free markets economy.
It is a mass vicious circle.Once we liberalise our economy to global competition and market forces,every part of economy i.e. industrial, agricultural and service sectors must be tuned to the with stand the global market forces and market price fluctuations


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

WORKER’S RIGHTS UNDER INDIAN CONSTITUTION by Suvalaxmi Dash, LL.M., NLSIU, Bangalore

UNDER ARTICLE 14

Secretary State of Karnataka v. Umadevi (3), 2006 4SCC1,40  para 48, AIR 2006 SC 1806

Temporary, contractual, casual, daily wage or ad hoc employees appointed dehors the constitutional schemes of public employment form a class by themselves. They cannot claim that they are discriminated against vis-a-vis those who have been regularly recruited on the basis of the relevant rules, or claim to be treated on a par with the latter.

Para 42 of the judgment :

The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

ARTICLE 16

Union Territory, Chandigarh  v.  Krishan Bhandari (1996) 11 SCC 348 para 7

Article 16(1), read with Art 14 and 39(d), also guarantees equal pay for eual work, so that the court would strike down unequal scales of pay for identical work under the same employer, which is based on no classification or irrational classification. The principle of “equal pay for equal work” cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State.

L.K.Koolwal v. State of Rajasthan (AIR 1988 Raj 2)

“Maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action.”

 Lakshmipathy v. State of Karnataka (AIR 1992 Kant 57)

“Entitlement to clean environment is one of the recognised basic human rights…..The right to life inherent in Art.21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.”

Chetriya Pardushan Mukti Sangarsh Samiti v. State of UP (AIR 1990 SC 2060)

 “Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything, which endangers or impairs that quality of life, is entitled to take recourse to Article 32 of the Constitution of India”

Virendra Gaur v. State of Haryana (1995 2 SCC 577)

“Article 21 protects right to life as a fundamental right. Enjoyment of the life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts would cause environmental pollution. Environmental, ecological, air, water pollution etc., should be regarded as amounting to violation of Article 21.”

Vishakha v.  State of Rajasthan and ors. AIR 1997 SC 3011

In the case of Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384), the Hon’ble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women.

2. It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or implication) as :-

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. Attention in this connection is invited to Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964, which provides that every Government servant shall at all times do nothing which is unbecoming of a Government servant. Any act of sexual harassment of women employees is definitely unbecoming of a Government servant and amounts to a misconduct. Appropriate disciplinary action should be initiated in such cases against the delinquent Government servant in accordance with the rules.

4. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the concerned authorities shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

5. In particular, it should be ensured that victims, or witnesses are not victimized or discriminated against while dealing with complaints or sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

6. Complaint Mechanism :- Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in every organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. Wherever such machineries for redressal of grievance already exist, they may be made more effective and in particular women officers should preferably handle such complaints.

7. Awareness :- Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines  in a suitable manner.

More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guidelines to deal with the problems of sexual harassment of women at the work place (Vishaka v. State of Rajasthan (1997) 6 SCC 241.). The right of workmen to be heard at the stage of winding up of a company was a contentious issue. In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three. The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management. The court observed: It is therefore idle to contend 32 years after coming into force of the Constitution and particularly after the introduction of article 43-A in the Constitution that the workers should have no voice in the determination of the question whether the enterprises should continue to run or be shut down under an order of the court.

It would indeed be strange that the workers who have contributed to the building of the enterprise as a centre of economic power should have no right to be heard when it is sought to demolish that centre of economic power National Textile Workers Union v. P. R. Ramakrishnan (1983) 1 SCC 249.

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ENFORCEMENT MECHANISM OF AIR POLLUTION LAWS IN U.S.A. AND INDIA : A COMPARISION by Suvalaxmi Dash, LL.M., NLSIU, Bangalore

CHAPTER-1

Introduction

The principal statute addressing air quality concerns in United States, the Clean Air Act was first enacted in 1955, with major revisions in 1970, 1977, and 1990. The Act requires EPA to set health-based standards for ambient air quality, sets deadlines for the achievement of those standards by state and local governments, and requires EPA to set national emission standards for large or ubiquitous sources of air pollution, including motor vehicles, power plants, and other industrial sources. In addition, the Act mandates emission controls for sources of 188 hazardous air pollutants, requires the prevention of significant deterioration of air quality in areas with clean air, requires a program to restore visibility impaired by regional haze in national parks and wilderness areas, and implements the Montreal Protocol to phase out most ozone-depleting chemicals.
                             
                  The Clean Air Act, like other laws enacted by Congress, was incorporated into the United States Code as Title 42, Chapter 85. The House of Representatives maintains a current version of the U.S. Code, which includes Clean Air Act changes enacted since 1990.

In India The Air (Prevention and Control) Act 1981 was enacted by the Parliament under Article 253 of the Constitution to take appropriate steps to prevent and control air pollution and fulfill the proclamation adopted by the United Nations Conference on the Human Environment held in Stockholm in June 1972. The main functions of Central Pollution Control Board (CPCB) as per the Air Act are to improve the quality of air and to prevent, control or abate air pollution in the country.

                                  My project will be based on descriptive, analytical and comparative approach. The reason being, the researcher is going to compare both the system and various drawbacks of the same. The researcher has adopted the uniform mode of citation throughout the project paper.

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An Inquiry into article 20(3): The right against Self-Incrimination by Saurav Gupta

Article 20 (3) reads as:

“No person accused of any offence shall be compelled to be a witness against himself.”
“The Article in the constitution of India dealing with protection in respect of conviction for offences is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic antechamber of a police station. And in the long run, that investigation is the best which uses stratagems least that policeman deserves respect who gives his fists rest and his wits restlessness.”- Halsbury’s Laws of India

Self-incrimination

Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
The right to remain silent is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. This right is recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding.

Historical Development of the Right

Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation."This created what has been termed the ‘cruel trilemma’ whereby these accused faced the prospect of one of perjury (which was believed to be a mortal sin) (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honor their oath).Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights. The evidence of that is to be seen in the near-identical systems of criminal law still in operation in those nations that inherited the English system - including the US. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in the Constitution, the others in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth countries like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style rights" (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. They must also ask an arrested person whether they understand these rights. Any failure to do so can jeopardise a criminal prosecution. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent and the development of the modern police force in the early 1800s opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States paved the way for the right to be extended to pre-trial questioning. The practice of warnings became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.

International Charters
Under article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(g) Not to be compelled to testify against himself or to confess guilt"

Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides: " in the determination of his civil rights and obligation, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." the right to remain silent of an accused was considered by the European Court, while considering the scope of the above article.  It was held: "Although not specifically mentioned in article 6 of the convention, there can be doubt that they remain silent under the police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6.[1] Whether the drawing of adverse influence from the accused’s silence infringes article 6 is a matter to be determined in the light of all circumstances of the case, having particular regard to the situation where inferences may be drawn the weights attached to them by national courts in their assessment of evidence and degree of compulsion inherent in the situation. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriage of justice and to secure the aim of article 6." What is at stake in the present case is whether the immunities are absolute in the sense that the exercise by an accused of the right of silence cannot under any circumstances be used against him at trial or alternatively whether informing him in advance that under certain conditions, his silence may be used, is always to be regarded as’ improper compulsion.’In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. The Judicial Studies Board has provided a specimen direction, which has been accepted by the European Court of Human Rights.[2] Failure to give a valid direction, does not, however, render a conviction automatically unsafe.A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.

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DEFICIENCY IN HEALTH SERVICE :HUMAN RIGHTS LAW APPROACH by Suvalaxmi Dash, LL.M., NLSIU, Bangalore

CHAPTER - 1

INTRODUCTION

“Should medicine ever fulfil its great ends, it must enter into the larger political and social life of our time; it must indicate the barriers which obstruct the normal completion of the life cycle and remove them. Should it ever come to pass, Medicine, whatever it may then be, will become the common good of all."

                                                                                                       (Rudolf Virchow, c.1850)

Right to life includes ‘Right to health’. Right to health cannot be confined to particular bureaucrats, Government, health experts or doctors but it should be accessed by every human being and specially the most marginalized must be assured of basic health care service and can demand access to this right without any fear. Looking at the issue of health under the equity regime, it is clear that the massive burden of morbidity and mortality suffered by the deprived majority is not just an unfortunate accident, but a denial of a healthy life because of structural injustice within the health sector. To achieve a decent standard of healthy life, it requires a range of far reaching social, economic, environmental and health system changes. To change the whole system we have to transform everything into shape within and beyond the health care sector which would ensure an adequate standard of health for all.

It is now established and recognized that right to health is a basic human rights and along with the basic human care is needed to a population for sustainable and equitable economic growth. The ‘Economic Growth above all’ by Dr. Amartya Sen says,

     'Among the different forms of intervention that can contribute to the provision of social security, the role of health care deserves forceful emphasis. A well developed system of public health is an essential contribution to the fulfilment of social security objectives. We have every reason to pay full attention to the importance of human capabilities also as instruments for economic and social performance. Basic education, good health and other human attainments are not only directly valuable. These capabilities can also help in generating economic success of a more standard kind.”[1]

The right to basic health care is recognised internationally as a human right and India is a signatory to the International Covenant on Economic, Social and Cultural Rights which states in its Article 12. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. There are various steps that can be taken which include those necessary for the creation of conditions which would assure to all medical service and medical attention in the event of sickness. There are other similar International Conventions, wherein the Government of India has committed itself to providing various services and conditions related to the right to health, e.g. the Alma Ata declaration of ‘Health for all by 2000’. The National Human Rights Commission has also concerned itself with the issue of 'Public health and human rights' with one of the areas of discussion being 'Access to health care'. The need of the hour is to ensure the action in realistic manner, time-bound and accountable framework.

The term ‘deficiency’ in medical services should extend beyond the doctrinal definition for the term given under the consumer protection act 1986, for the purpose of promoting human rights. The foundation of this term in fact stems from the concern expressed by the International Organisation for Consumer Unions[2] (IOCU) and the United Nations Guidelines on Consumer Protection[3]. If deficiency in medical services is examined in the light of the principles projected by these bodies, the following circumstances can be identified as leading to deficiency in medical services.

• Denial to access health services which include access to basic medical services.
• Advanced medical treatment which may be life saving procedures, cosmetic procedures, or procedures for satisfying desirable human needs.

Failure to provide safety of products used in health care services, experimental medicines and clinical trials on human beings and abuse of diagnostics and curative procedures can also lead to human right violation. India urgently needs to spend more on healthcare and save its poor population from poverty and hunger or face the risk of slower economic growth and sustainable development which is very much important to meet the millennium development goals. It is worth saying that a sick and vulnerable population which cannot act at par with healthy population, will not contribute much to the economic development of our country. “It is a hard fact to digest that the Government spends only 1% of its gross domestic product on healthcare facilities, forcing millions to struggle to get and access healthcare services in India. Indian authorities themselves admit of corruptions and inefficiency in the government system, especially in villages where health centres do not have medicines or doctors. After calculations it is said that to meet the success of millennium development goals by 2015, India needs to spend 3% of its GDP on health sector. The crucial fact is that India’s maternal mortality rate (MMR) stands at 450 per 100,000 live births against 540 in the 1998-99 period - and way behind the MDGs which call for a reduction to 109 by 2015. To improve this poor condition, India needs to increase public expenditure and ensure better healthcare facilities.”[4]

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