Wednesday, October 17, 2012

Domestic Violence a Curse in the Society - A Global Epidemic by Anushtha Saxena


Women is a unique creation of God understanding, hardworking, full of compassion holding high level of initiative and a trend setter for progeny inspite of these qualities the women have never been treated at par with the men . She has faced and is facing discrimination, exploitation and violence from time immemorial. Violence against women and girls continues to be a global epidemic that kills, tortures, and maims – physically, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women and girls’ equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms.

After independence have seen tremendous changes in the status and the position of the women in the Indian society. The constitution of India has laid down as a fundamental right- the equality of the sexes. But the change from a position of utter degradation of women in the nineteenth century to a position of equality in the middle of the twentieth century is not a simple case of the progress of men in the modern era. The position of women in the Indian society has been a very complicated one. In fact, it could not be an exaggeration to say that the recent changes in the status of women in India is not a sign of progress but it is really a recapturing of the position that they held in the early Vedic period. The Declaration on the Elimination of Violence Against Women, adopted by the UN General Assembly in 1993, defines Violence Against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm, or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty; whether occurring in public or private life”. It could be seen that despite the total literacy and global model of development, Kerala tops the list in Domestic Violence, according to the survey conducted by ICRW. Domestic violence is to be perceived not as a law and order problem alone. Primarily it is a socio cultural problem. Its impact has far reaching effects on the family life, health of woman, life of children etc. Studies such as these which examine the causes, its nature and manifestations and consequences would assist the general society to understand the magnitude as well as its implications on the lives as well as the institution of family. According to the National Victims Centre, one woman is raped every minute, and 30% of all women murdered in this country are murdered by their boyfriends or husbands.

WHAT IS DOMESTIC VOILENCE?
Article 2 of the UN draft Declaration of Violence against women identifies three areas in which violence commonly takes place. They are a) violence occurring within the family b) violence occurring in the general community and c) violence perpetrated or condoned by the state. Earlier victims of domestic violence did not lodge complaints, as they feared that such complaints might create a hostile home environment. Very often, women used to endure the violence towards them in silence for fear of repercussions. In spite of the extreme physical and psychological violence meted out on many women, they do not seek divorce, as they feel their trauma and that of their children is too great a price to be paid instead. Thus to a great extent she accepts domestic violence as part of her family life. The National Family Health Survey (NFHS-2) findings released at the end of the year 2000 points out this fact. Although no direct link has been established, the survey reveals the extent to which women lack autonomy, even as more than 50percent justify, or accept violence within the home.

How Gandhiji would have viewed Anna Hazare Anti-Corruption Movement? by Habib Zafar, NALSAR


“Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today”                                                                                   

                                                                                                                               -Mahatma Gandhi.

Corruption affects the entire society at all levels and in all sectors. It is also of the most obvious concern of society and a theme of everyday discussion and debate. Apart from the moral and ethical mission to tone up the moral level of the entire society, the administrative reform is also an integral part of the overall strategy against corruption for simplification of procedure accountability and openness. In Huntington words, “Corruption is behavior of public officials which deviates from accepted norms in order to serve private ends. The character of corruption in India has not changed over time, though its magnitude certainly has. Conventional wisdom might suggest that the corruption that plagues India today is a vestige of the widespread corruption of the state-centered economy, which preceded the liberalizing reforms of 1991. Yet many of the worst cases of corruption in recent years were borne out of deregulation, privatization, and the fostering of public-private partnerships—the very processes that were meant to reduce the discretionary powers of public officials. An example is the notorious “2G spectrum scam,” in which cellphone licenses were sold for a fraction of their value, resulting in the loss of a staggering $39 billion to the national exchequer. Corruption in politics has become a plague across our country, it is draining our resources and demoralizing our nation.

Anna Hazare, is the man of initial protester- an anti-corruption crusader who is determined to establish the Jan Lokpal Bill that can bring in a strong anti-corruption law in India. In today’s generation, most of us have not seen Mahatma Gandhi and his way of fighting against the English. However, Anna Hazare has provided us a glimpse of the ‘Freedom Struggle’ His actions was reminding the shadow of Mahatma Gandhi. The question arises here: does nonviolence serve as mighty tool in the 21st century as well? & how Mahatma Gandhi would have viewed this movement?

Anna Hazare struggle against corruption was a gentle reminder of Mahatma Gandhi’s Satyagraha. His fast-unto death, has shown the world what Gandhism means in today’s world. The power of Gandhiji’s nonviolence will never cease to exist in the ages to come. While in Libya and Yemen there is bloodshed for freedom, where people are waging war against one another during the crisis, here in India, a respected social activist Anna Hazare is waging a peaceful, nonviolent war against corruption. His urge to free India of the greatest evil, corruption, commends appreciation. This fight against corruption staged at Jantar Mantar was not a one- man show. People from different parts of the country gave their support to Anna Hazare. The greatest merit of this nonviolent struggle was that no political party was involved in it. Anna Hazare and his supporters were not influenced by any political party. There was only one flag waving high in the sky and in our minds, the Indian National Flag. IT IS evident from his interviews and speeches that Hazare views corruption as the result of unchecked human greed. There is no further analysis. Gandhi too stressed the importance of personal ethics: “Be the change you want to see in the world” is one of his best-remembered axioms. But Gandhi’s understanding of why humans err was more profound, his diagnosis more structural. For Gandhi, personal greed had a wider social context, and was also rooted in the unethical choices and practices of the state. . Gandhi would surely condemn India’s bitter scourge of corruption were he alive today. Unlike Hazare, however, he would demand a more systemic answer to a more preliminary question: How did this come to pass?

Hazare and his supporters have been silent on a range of recent developments—such as illegal mining and the land acquisition process for SEZs (special economic zones)—in which corruption hurts poor farmers, fisher folk, and indigenous communities rather than well-heeled city-dwellers. Reckless and rapacious economic transformations have proceeded unchecked, even as Hazare has prayed, fasted, and stressed the importance of vegetarianism and tee totaling. Gandhi would surely have been critical of such unwillingness to connect personal ideals of moral living with a broader vision of social and environmental justice. While Gandhi curried favor with wealthy business elites—a strategy that earned him enduring opprobrium from India’s Communist Left—his primary base of support was always the rural poor, in whose service he advocated a smaller-scale and more ecologically conscious road to “development” than the one India ultimately adopted. Hazare, in contrast, has yet to formulate a position that challenges the neoliberal objectives and ill-founded nationalism of his financiers and followers. An anti-corruption route more in keeping with Gandhian principles is that of the National Campaign for People’s Right to Information (NCPRI).

This lime Unlike Gandhi, Hazare is not a deep thinker. Nor is he an educated man. More worrying, he seems to lack the Mahatma’s sense of compassion and good judgment. Hazare’s critics say that he has a soldier’s view of corruption rather than that of the spiritual leader he claims to be but these lines of Gandhi is enough to guide anyone:

"A small body of determined spirit, fired by an unquenchable faith
in their mission can alter the course of History."


Elettronica Sicula S.p.A (ELSI):U.S.A v. Italy- A Case Study by Habib Zafar, NALSAR


ABSTRACT:
In 1967, Raytheon held 99.16% of the shares in ELSI, the remaining 0.84% being held by Machlett, which was a wholly owned subsidiary of Raytheon. ELSI was established in Palermo, Sicily, where it had a plant for the production of electronic components; in 1967 it had a workforce of slightly under 900 employees. In February 1967, according to the United States, Raytheon began taking steps to endeavor to make ELSI self-sufficient. At the same time numerous meetings were held between February 1967 and March 1968 with Italian officials and companies, the purpose of which was stated to be to find for ELSI an Italian partner with economic power and influence and to explore the possibilities of other governmental support. When it became apparent that these discussions were unlikely to lead to a mutually satisfactory arrangement, Raytheon and Machlett, as shareholders in ELSI, began seriously to plan to close and liquidate ELSI to minimize their losses. On 28 March 1968, it was decided that the Company cease operations. Meetings with Italian officials however continued, at which the Italian authority rigorously pressed ELSI not to close the plant and not to dismiss the workforce. On 29 March 1968 letters of dismissal were mailed to the employees of ELSI.  On 1 April 1968 the Mayor of Palermo issued an order, effective immediately, requisitioning ELSI's plant and related assets for a period of six months. On 19 April 1968 ELSI brought an administrative appeal against the requisition to the Prefect of Palermo. A bankruptcy petition was filed by ELSI on 26 April 1968, referring to the requisition as the reason why the company had lost control of the plant and could not avail itself of an immediate source of liquid funds, and mentioning payments which had become due and could not be met. A decree of bankruptcy was issued by the Tribunal di Palermo on 16 May 1968. The administrative appeal filed by ELSI against the requisition order was determined by the Prefect of Palermo by a decision given on 22 August 1969, by which he annulled the requisition order. The Parties are at issue on the question whether this period of time was or was not normal for an appeal of this character. In the meantime, on 16 June 1970 the trustee in bankruptcy had brought proceedings in the Court of Palermo against the Minister of the Interior of Italy and the Mayor of Palermo for damages resulting from the requisition. The Court of Appeal of Palermo awarded damages for loss of use of the plant during the period of the requisition. The bankruptcy proceedings closed in November 1985. Of the amount realized, no surplus remained for distribution to the shareholders, Raytheon and Machlett.

The United States claimed that the requisition had caused the bankruptcy of the company, thereby violating several substantive and procedural rights guaranteed by the FCN Treaty. Italy, raised preliminary objection to the admissibility of the claim on the ground that local remedies had not been exhausted and any event, flatly denied any violation of the treaty. In the oral hearing Italy further submitted “in a subsidiary and alternative basis only” that even supposing a violation of its obligation, no injury had been caused for which payment of indemnity would be justified.

The Chamber rejected the objection of non-exhaustion of the local remedies and after examining found that the Respondent, Italy, had not violated the FCN Treaty in the manner asserted by the Applicant, it follows that the chamber rejected the claim for reparation made by the Applicant.

Background:
This case is in respect of a dispute arising out of the requisitioning of the plant and assets of Elettronica Sicula S.p.A (ELSI)[1], An Italian company established in Palermo, Italy; which was 100 percent owned by the two United States Corporations: Raytheon company [Raytheon] which held 99.16% of the shares and its subsidiary Machlett laboratories [Machlett] which held the remaining 0.84% of shares. The issue at the heart of the dispute was the bankruptcy of ELSI in March/April 1968[2] and its subsequent sale at a reduced price (due to requisition) than fair market value to the state owned Telecommunicazioni S.p.A (ELTEL).

Credit Rating in India:An Overview by Mirza Juned Beg, NALSAR


INTRODUCTION

In providing independent opinions to investors as to the credit quality of debt issuer, credit ratings have become important parameters in market acceptance and pricing of debt[1]. Ratings are now viewed as easily usable tools for differentiating credit quality by both individual investors ill-equipped to assess credit risk, and institutional investors often required to hold instruments of given credit categories in their portfolio[2]. This introductory note reviews the key definitions and features of credit ratings and the bases on which ratings are assigned. It briefly addresses the correlation between credit quality and default rates, and outlines some of the criteria underpinning sub-sovereign credit assessments in emerging and developing economies[3].

 With the increasing market orientation of the Indian economy, investors value a systematic assessment of two types of risks, namely “business risk” arising out of the “open economy” and linkages between money, capital and foreign exchange markets and “payments risk”[4]. With a view to protect small investors, who are the main target for unlisted corporate debt in the form of fixed deposits with companies, credit rating has been made mandatory. India was perhaps the first amongst developing countries to set up a credit rating agency in 1988[5].
The function of credit rating was institutionalized when RBI made it mandatory for the issue of Commercial Paper (CP) and subsequently by SEBI. When it made credit rating compulsory for certain categories of debentures and debt instruments. In June 1994, RBI made it mandatory for Non-Banking Financial Companies (NBFCs) to be rated. Credit rating is optional for Public Sector Undertakings (PSUs) bonds and privately placed non-conve11ible debentures upto Rs. 50 million. Fixed deposits of manufacturing companies also come under the purview of optional credit rating[6].

The Ratings industry in India has been built up to its present position over a period of 15 years. Over the years, credit ratings have evolved into a 90-crore market, with four agencies providing rating services, and significant pull from investors for the product[7]. The ratings business in India has seen three phases:

·         First phase, as described above, there was no experience of credit ratings, and virtually no awareness, on the part of investors and issuers.

·         Second phase saw the advent of regulatory support for credit ratings, with the introduction and increasing rigor of regulations covering primarily the markets for public issue of debt and for fixed deposits. Aimed at protecting smaller investors, these measures also amounted to regulatory recognition of the role of credit ratings and the quality of the effort put in till then, in estimating credit quality. With these measures, credit ratings rapidly passed out of the arcane realm of high finance, and into the lexicon of the individual market participant.

·         Third phase recent years have seen a third phase of the market’s development with public issues of debt reducing in volume; the focus has shifted to the market for private placements. Almost all the privately placed debt issued in the Indian market is rated, even though this is not a regulatory requirement. This shift is entirely driven by investors in these securities, who typically tend to be highly sophisticated financial sector entities.
Credit rating is also known as Security Rating in India. It is mandatory for the issuance of debt instruments, debentures; commercial paper issued by corporate and public deposits of all NBFCs (Non Banking Financial Companies).

Theories of Punishment by Diwakar Sharma, Law Student


Penology : Theories Of  Punishment


Introduction :
Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.’ Punishment has the following features:
# It involves the deprivation of certain normally recognized rights, or     other measures considered unpleasant
# It is consequence of an offence
# It is applied against the author of the offence
# It s applied by an organ of the system that made the act an offence

The kinds of punishment given are surely influenced by the kind of society one lives in. Though during ancient period of history punishment was more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. Debunking the stringent theories of punishment the modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhumane, though it was a major form of punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for suppression. The law says that it does not really punish the individual but punishes the guilty mind.
As punishment generally is provided in Criminal Law it becomes imperative on our part to know what crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crimeCrime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration  a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation between the murderer and the victim’s family.
Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be used as a method of educing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.
Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be used as a basis for considering divine punishment.
Many a time this punishment has been termed as a mode of social protection. The affinity of punishment with many other measures involving deprivation by the state morally recognized rights is generally evident. The justifiability of these measures in particular cases may well be controversial, but it is hardly under fire. The attempt to give punishment the same justification for punishment as for other compulsory measures imposed by the state does not necessarily involve a particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of protection commits us to holding that punishment may be effective in preventing social harms through one of these methods.

As punishments generally punish the guilty mind it becomes very important on the part of the researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether or not there must be any place for the traditional forms of punishment. In today’s world the major question that is raised by most of the penologist is that how far are present ‘humane’ methods of punishment like the reformative successful in their objective. It is observed that prisons have become a place for breeding criminals not as a place of reformation as it was meant to be.

It may be clearly said that the enactment of any law brings about two units in the society- the law-abiders and the law-breakers. It is purpose of these theories of punishment to by any means transform or change these law-breakers to the group of abiders. To understand the topic the researcher would like to bring about a valid relation between crime, punishment and the theories. For that purpose the project is divided into three parts:

# Crime and Punishment
# Theories of punishment
# Conclusion

The researcher due to certain constraints of limited time and knowledge is unable to cove the area of the evolution of these theories separately but would include them in the second chapter. The researcher would now like to move on to his first chapter in which he would be vividly discussing ‘crime and punishment.’
The researcher in his first draft had included the chapter on the evolution of the theories from the early ages to the modern era, but due to certain limitations included them and discussed them during the due course of the project.

Protection of Traditional Knowledge: International and national Initiatives and Possible ways ahead by Nithin Kumar, Law Student


Abstract
Traditional Knowledge (TK) is a cumulative body of knowledge which is handed down through generations through cultural transmission. Modern manufacturing industries are now commercially exploiting TK, without even sharing the benefit accrued from it with the indigenous communities.. This paper shall analyse the need for protection of TK and how commercial exploitation of TK is affecting indigenous communities and aims to find out why current IP systems cannot be invoked for the prevention of indigenous knowledge, the measures taken in the international and Indian scenario for protection of traditional knowledge. Another focus point of this paper is regarding the future of TK protection where author attempts to look into the proposals laid by developing countries and various Jurists like concept of defensive publication with special reference to Traditional Knowledge Digital Library (TKDL), Disclosure of Origin, Benefit sharing with indigenous communities for use of TK, etc.

Introduction

Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agriculture, medicine, bio diversity as well as expressions of folklore in the form of music, dance, songs, handicraft, designs etc.

Wednesday, September 12, 2012

Deepening of Democracy in India - by Ankit Awasthi LLM, Hidayatullah National Law University


Deepening of Democracy in India - Mahaveer Singh Dewal and Ankit Awasthi Hidayatullah National Law University, Raipur


India … has embarked on an experiment in democratic planning which is perhaps larger and more complex than any in the modern world. Some have called it a fateful experiment … what is on trial … is, in the last analysis, whether democracy can solve the problems of mass poverty. It is a trial perhaps never before made in such an atmosphere of urgency1. —Government of India, 1958 India has witnessed great social, political and cultural change. As the world’s largest democracy, its most diverse nation and one of its fastest growing economies, India is now, sixty years after Independence, universally regarded as an emerging superpower.


India started its life as an independent nation with a democracy that many people saw as shaky and thin on the ground – in Ambedkar’s words, democracy was ―topsoil‖ beneath which, India remained dominated by loyalties to caste, religion and region. India survived this early uncertainty, and has evolved into an increasingly mature democracy. The new maturity has come with a large-scale mobilization of people and a surging awareness of economic and political rights at the grassroots. Since the 1980s, this deepening has been accompanied with the rise of a new, powerful civil society, which is influencing and shaping our public debates


2. Achievement of Indian Democratic Government - Achievements are the measure of one's performance. India is largest democratic country in the world. After independence India continued with democracy system without any obstacle. If the Government of India, 1958 Sharma Shalendra’s Book democracy and development present Government's performance is to be measured then one has to look into their achievements. If this Government is seeking a return mandate, then in all fairness, they should be explaining us or detail us the achievements they have done in these five years. With nothing to boast, they went on adding the achievements of winning Gold in Olympics, Winning Oscar, Mission Chandrayaan as the achievements of their Government. This makes it obvious that they lack facts. If Pokhran was declared as achievement by the NDA Govt, it is because it involved the decisions of the Govt that required guts in the international arena. How Chandryaan could be the achievement of the government is known only to those media managers. Similarly if the UPA is taking credit for an Oscar for Slumdog, in all fairness, they deserve to get it because they are the reasons for the numerous slums in India and the people in BPL. Here goes my another list of achievements to help them


3. In few countries of the developing world has the impact of the state on agricultural modernization been as pervasive as in India. Since independence, India's democratic state has intervened extensively in the country- side with a plethora of policy packages aimed at promoting rural development, advancing social justice, and improving the living standards of the vast majority of the its inhabitants—known in official parlance as the ―weaker sections of society


4. We have made decent progress in several areas during the last 60 years. We have produced world-class scientists, engineers, journalists, soldiers, bureaucrats, politicians and doctors. We have built complex bridges and dams. We have sent satellites and rockets into space. We have increased the number of doctors tenfold. We have increased life expectancy from 32 years to 65 years. We have built about 1.25 million miles of new roads; we have multiplied our steel production by over 50 times and cement production by almost 20 times. We have increased our exports from a few million dollars at the time of independence to more than $125 billion now, with about $150 billion of imports


5. B.B. Misra: The bureaucracy in India: A historical Analysis of Development upto 1947 4 C.P. Bhambhri: Bureaucracy and Politics in India (Delhi: Vikas, 1971) 5 newshopper.sulekha.com/india-general-elections-2009/blogs/2009/04/achievements.htm


Green Revolution Perhaps, no other Indian initiative has enhanced the national confidence as the Green Revolution initiated by Dr. M.S. Swaminathan. This revolution, which started in 1965, not only transformed India into a food-surplus economy from a food-deficit economy but also triggered the expansion of the rural, non-farm economy. The lives of at least 400 million to 500 million Indians have been uplifted due to this initiative. From being a perennial importer of grains, India became a net exporter of food grains 10 years ago.


White Revolution - Coming from a generation that experienced an acute shortage of milk, it is unimaginable that, today, we have become the largest producer of milk in the world. The credit goes to the extraordinary vision of one person, Dr. Verghese Kurien. In a nation where children are malnourished, such abundance of milk has offered us the opportunity to fight malnutrition with the means produced in India


6. The economic reforms of 1991--initiated by the late Narasimha Rao, Dr. Manmohan Singh, Shri P. Chidambaram and Dr. Montek Singh Ahluwalia--opened up the minds of Indian corporate leaders to the power of global markets, helped them accept competition at home and abroad, and raised the confidence of consumers. Our hard currency reserves have gone up from a mere $1.5 billion in 1991 to over $220 billion today. The reforms encouraged entrepreneurship and gave confidence to businessmen and entrepreneurs to dream big, create jobs, enhance exports, acquire companies abroad and follow the finest principles of corporate governance


7. Economic scenario: Inflation is an index that is given on the basis of average calculations of the present situation vis-à-vis preceding weeks. The inflation has shot so high that the average is now showing almost zero inflation. They boast of near-zero inflation as an achievement whereas all of us are aware how far the prices of essential commodities soared high. The way they played around the petroleum prices as the elections approached near showed their ability or the lack of it to control the prices


8. S.R. Maheshwari : ―Bureaucracy and political development in India‖ in Indian journal of political science, vol. 39 7 Carl J. Friedrich: Constitutional Government and Democracy (Calcutta: Oxford and IBH, 1966). 8. J.W. Garner: Political Science and Government (Calcutta: World Press, 1952), II Edn.7


As per my opinion, because of glorious achievement of Democratic form of Government in India, which gained in last sixty year, India still persist with Democratic form of governance.