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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