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.