Goforthelaw

Monday, December 12, 2011

HUMAN DEVELOPMENT : Why There is a Shift From Economic Development to Human Development and How That Shift is Measured ? by Akhilesh Patel, NLSIU

1. INTRODUCTION

Development refers to economic, social, political and cultural processes of change in human societies which seeks to satisfy the spiritual and material needs of man. Historically this development process was state centric with given primacy on physical accumulation of income or materials. Individuals in process of such kind of development were marginalized by powerful and rich community having supports and backup of western governments and institution promoting capitalist oriented development theories. Trickle down approach furthered by structural adjustment programmes of World Bank and IMF lead to the detrimental of human life. John F. Kennedy and his successors following the principles of ‘a rising tide lifts all boats’ led to sunk several smaller boats under high rise of tide. There have been four theories regarding the nexus between economic growth and social development- The first theory holds the view that social development is a product of economic growth. This theory is well known as trickledown theory that makes emphasis on economic programs and assumes that economic growth would tend to produce social development. Okun and Richardson defined economic growth as "a sustained, secular improvement in material well-being as reflected in an increasing flow of goods and services." Thus it encourages throwing resources for economic growth and privatization. The second theory says that economic growth and social development are two unrelated events - Zuvekas as champion of this approach says that economic growth can occur without social welfare development and therefore countries should limit the distribution of the domestic benefits of growth to privileged elite at the expense of widespread social welfare development. He states that without specifically targeting the poorer sections of the population for assistance in meeting basic needs, economic growth could produce an ever widening gap between the wealthy and the poor.The third theory describes that neither social development nor economic growth is a primary cause of the other, but they are inter dependent –As a proponent of this view , Srinivasan is of the opinion that the policies for economic growth and the policies towards basic needs development are interwoven. He suggests that too much emphasis on basic needs would, at least in the short run, hurt economic growth which, in turn, would damage future improvement in the basic needs fulfillment. The fourth theory holds the view that social development precedes economic growth - Streeten as proponent of this approach has expressed that extra income would not always be spent on items basic to the individual's welfare. He notes that some basic needs may be satisfied more effectively through public services including access to clean drinking water, schools and health services, and therefore, are not directly linked to individual income. In fact, Streeten suggests a ‘trickle-up’ effects when he states "basic needs is not primarily a welfare concept; improved education and health can make a major contribution to increased productivity[1]."

effectiveness of sanctions in international environmental law by by Divya Rathor, NALSAR University of Law

Introduction

Effectiveness of sanction in international environmental law is a topic of debate in recent world of modernization, globalization, liberalization and privatization. With the advent of the technology, the mother nature has been exposed to risk of environment degradation, so it has become necessary to look out for sanctions to control the menace and also to check the effectiveness of the sanctions.

The polluter pays principle or PPP, as one of the basic tenets of the concept of sustainable development provides for effective sanction for environmental law. According to the principle the polluter has to pay compensation for the loss done to persons, loss done to the environment as well as for the restoration cost of the environment. The principle has proved itself to be effective in protecting the environment. The recent application of the principle is found in Gulf of Mexico, oil Spill case.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, or The London Dumping Convention, Marpol 73/78, STCW CONVENTION, 1978, Convention on Liability for Damage Resulting from Activities Dangerous to the Environment also provide for some what effective sanctions of international environmental law.

The case of Nauru and Nuclear testing by USA in Marshall Islands are the examples of case where the sanctions imposed for wrong done to the environment are effective but have been criticized as inadequate.

Do we have right quality of political leadership in the legislative and administrative bodies in charge of government of the country and states? by Mr S. Lakshma Reddy, Advocate, High Court of A.P.

Do we have right quality of political leadership and political institutions and Do we need any change in them to meet the new global economic and political reality ?

Globalization of capitalism has its effects on countries as a continuous process.World has found that the socialism in the form it was experimented in soviet or chineese economy is not economically or politically feasible challenge or substitute to capitalism and is found to be contrary to natural evolution of human social development.Recent events in western capitalistic countries once again are proving that the civil and political rights and freedoms will not grow hand in hand with economic rights and freedoms unless under right leadership and the political conflict or contradictions erupt like volcuno to discharge the heat or absorb the cold in the political economy for realignment of new new political and social equilibriums with in countries and among countries in the global context.

The traditional 19th century individualistic free entreprising capitalism is now tranformed to dominant global corporate capitalism making the capitalist as a mere appendage to the recipient of prorata dividends or profits of entreprise on risk basis as one of the share holder and not as the owner of entreprise and corporate entreprise which is recognised as a distinct entity from shareholder capitalist. with it has arisen new challenges of political control over the new managerial cadre's decision making over these global corporate entities both public and private. Political control involve the sovereign bodies like legislative, executive and judicial powers entrusted to representative institutions and individuals holding and exercising such power delegated to them by sovereign people.

It is now proved that criminal nexus develops between politicians and administrators as a natural selfish person as distinct from the public personality in public office with corporate lobbies and mafias spreading their network across cross-borders to escape or delay domestic legal liabilities. Nations have worked on private international law and public international law through evolving new protocols, international conventions and charters etc but the institutions have come to be totally inadequate to the gravity of challenges of required political control to the challenges posed by the acts of new corporate bodies and private entities as is found in the recent global financial crisis with practical immunity from any criminal liability to the perpetrators of economic malfeasants in governments and corporates. The crisis postponed through tax payers bailouts is re emerging in the form of national sovereign debt crisis situations, with resultant new Wall street occupy and similiar protests across many developed countries demanding accountability of governments, politicians and corporates. This is the new global challenge to political institutional outlook and demands for changes in all countries and among countries thrown open with new globalization of economies and markets.

Is indian leadership is in right quality with necessary vision ready for these challenges to take the country in right pace with changing global ecconomic and political scenario? is the quality of leadership in charge of national and state level sovereign representative institutions and its delegated powers under the constitution in fit and proper mode to respond and what changes to be effected ? Is the existing form of government fits with new global reality to reflect the general will of its people and to execute the general will and if not what changes to be proposed? These two questions are to be ever present with any representative assembly and its delegates as is advised by the Jean joquise Roussoe in his celebrated work "on social contract " book and more relevant now.The two questions he propsed are as follows:

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

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;

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 Ireland, two 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.

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:

Providing:

free legal advice;
lawyers for litigation in courts;
knowledge on legal rights and remedies.

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 18^th 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 include^². 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.