Who makes law for us, Union Cabinet or Union Carbide? by Follow Prof. Madabhushi Sridhar, Professor, NALSAR

Who makes law for this country? Is it the MPs lobby in Parliament or MNC lobby of US nuclear reactor industry? Who will decide ultimately the shape of the Bill to be introduced in Parliament of India? Is it Union Cabinet or Union Carbide? Who will be consulted for shaping the policy? Is it people of India or business people of US?

No consultation with the people

First of all, WE, THE PEOPLE, so called ultimate sovereigns of India since August 15, 1947 after getting liberated from East India Company Rule, should have been consulted as any ‘hazardous and inherently dangerous’ activity that would harm the people while it might fill the Swiss accounts of corrupt politicians and pockets of bribe loving bureaucrats. Every body except invisible environment and unidentified individuals will be happy with the deals and dealers dealing with purchasable leaders. There is no initial consultation process before making the Civil Liability for Nuclear Damage Bill of such nature which victimizes people, their government and offers in gold plate the immunity to makers of genocide technologies such as the machinery of UCC in Bhopal. The Bill is drafted somewhere on the tables of bureaucrats under the directions of UPA II bosses and PMO, whose patriotic fervor has to be doubted now. Then it was a top secret for a long time, until it is exploded with leaks and breaks. Left parties generated hue and cry about the bad law. The BJP also joined it. The Union Government headed by UPA II has been forced to send the Bill for the consideration of Parliamentary Standing Committee on Science and Technology headed by neither a scientist nor a technologist, but by Mr. T. Subbarami Reddy, a former civil contractor of Andhra Pradesh who executed the massive Nagarjun Sagar Dam and faced serious charges of corruption. It is difficult to believe whether this former contractor turned politician understood the terrible implications of the bill which was further diluted by his committee.

Executive overtakes Legislature

Even when the PSC was considering the Bill clause by clause, the Manmohan Government did not hesitate to please the US lobby by deleting clause 17(b) the only provision which might trouble the nuclear technology supplier, from the draft Bill. There was a public outcry with ‘timely injustice’ to Bhopal victims through the judgment of Criminal Court awarding mild punishment to the managers of genocide leaving out those who caused it from foreign territory. This made the people to grow suspicious about the pro-US-industry commitments of Indian Union. In response, the criticism-bitten- Government announces that they would not delete that clause. Then the Department of Atomic Energy presents a list of suggestions including a recommendation to delete clause 17(b). All our future interests of Atomic Energy are entrusted to management of this department which caters to the needs of US Industry, a shame indeed.

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The Plight of Right to Education: Short of Schools & Teachers by Prof. Madabhushi Sridhar, Professor, NALSAR

(UTF Founder General Secretary Appari Venkataswamy Memorial Lecture 3.4.2011)

Good news is that 2011 census show an increase in literacy rate, but nation is still to worry as 81 lakh of its future generation are out of school.  Releasing the achievements in the first year of implementation of The Right of Children to Free and Compulsory Education Act, 2009, Human Resource Development Minister Kapil Sibal said 81 lakh children out of school was a matter of great concern.

The Children Rights and You, CRY reported that 17282 eligible habitations in India do not have a primary school within one kilo metre of the habitation. Within the sphere of infrastructure, 1, 48, 696 government schools in India are without a building, 165742 schools without drinking water, and 4, 55, 561 schools without toilets. 1, 14, 531 primary schools are single-teacher schools.

Translating a directive principle of state policy (Article 45) into a fundamental right (Article 21A) and then to statutory guarantee to right to education (RTE Act 2009) took, unfortunately, several decades. Provision of free and compulsory education to all children until they complete the age of 14 years is mandated under Article 45,  a Directive Principle of State policy of the Constitution. In the endeavor to increase enrolment and achieve Universal Elementary Education UEE, the state governments have abolished tuition fees in Government schools run by local bodies and private aided institutions.  Right to education is not stated expressly as a fundamental right in Part III. Supreme Court has not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of press is not expressly mentioned in part III, yet it has been read into and inferred from the freedom of speech and expression and from Article 21 more particularly, sprung up a whole lot of human rights jurisprudence[1].

Right of the People or Duty of the State?

What we got ultimately through the Constitutional and Statutory ‘guarantee’ of right to education, in 2009?  Right to education was not included in the guaranteed list of fundamental rights in Part III. The members of Constituent Assembly thought that the Governments would take the guidance from these Directives and fulfill their obligations towards the people. Article 45 made it mandatory for the Government impart education freely to all children up to 14 years within ten years from the commencement of the Constitution. But the first national Governments did not give any priority to this mandate. The country passed through the decade without any progress in providing education as per Article 45 and then several such decades passed off till 1993, when the Supreme Court questioned the executive about it. Justice Jeevan Reddy rightly said it was no more a directive but a right, and got consolidated into fundamental right with passage of time. It is good to hear that after forty three years the Supreme Court called it Fundamental Right but who will execute it?  Judiciary has expanded the scope of Article 21 by leaps and bounds to secure the quality of Indian living beings.  It includes within its realm, the right to know through education. But again it’s just rhetoric and does not mean any thing more than that, if not supported by a strong executive will and legal mechanism.

Limiting the rights by law and practice

Feeling uncomfortable with the judicial admonition of executive apathy regarding the right to education, the executive Government started ‘limiting’ that theoretic right.  The limitation was clear and visible with 86^th amendment in 2002 where it mandated that state shall provide free and compulsory education to “all” children of the age of six to fourteen years in such manner as the State may, by law, provide.  First of all it is not for all children, secondly Government shirked its responsibility towards children of age 0-6 or effectively 2-6 years and 14 to 18 years, and thirdly the manner is determined by the law to be made, which means further shrinking of right. It is strange that the constitutional guarantee of a fundamental right provides within itself enormous power to state to limit that right besides eliminating children of age group from 3-6 and 14 to 18 years.

This is the back ground of Right to Education enactment in 2009, which was not implemented till 2010. The Government chose April 1, 2010 to announce its implementation without any positive change in the situation as to provision of facilities to give education to poor people.

Not even notified!

Disputing earlier figures that only six out of 28 states notified the Act, and presenting a positive note of implementation of the 2009 enactment, the HRD Minister announced that as many as 15 States had notified the Rules. In India officially 13 states, according NGOs 22 states did not initiate process of implementation. After one full academic year is passed by April 1, 2011, only six states and seven Union Territories notified the Act and made rules that too in the last quarter of the year.  Those six states are Sikkim, Orissa, Manipur, Arunachal Pradesh, Andhra Pradesh and Rajasthan. The Government of Andhra Pradesh took at least 10 months to notify the rules (on 22.2.2011). State-specific rules are critical because they outline commitments of state governments on standards they will ensure and details of how they will implement the RTE Act. One year is not a small time and much could have been achieved. Notification of the rules means a financial commitment and employment of other resources to make the legislation a right.

Only 11 states constituted State Commissions for Protection of Child Rights, while 28 States adopted the policy of eight year elementary education. Andhra Pradesh has notified in February, and nine other states notified thereafter.  There was a policy of no detention (failing) in 27 States, 28 states had banned corporal punishment and 26 had done away with board examination up to the elementary level. Several States had also banned private tuition, screening procedure and capitation fee[2]. Another meritorious achievement presented by the minister is that a huge number of children were now enrolled in schools – 13 crore at the primary level and another five crore at the upper primary level. Girl enrolment was 48 per cent. The NGOs question the authenticity of these figures saying that there are several lakhs of children out of school working in fields and factories.

India’s primary education scene looks not particularly alarming on paper. The gross enrolment ratio (GER) from Class I to VIII was 94.9 percent and from Class I to XII, 77 percent. But hiding behind the GER is the sheer number of children who do not attend, or those who drop out. The GER does not take into account the numbers of those who actually attend school, and how many drop out. Government schools lose 25% of their students by Grade V, and almost half (46%) by Grade VIII. 80,43,889 children in the 6-14 age group fall into the ‘never enrolled’ category, and are out of school. 

Lack of awareness

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[1] B.P. Jeevan Reddy, J., in Unnikrishnan Case para 132.

[2] Aarti Dhar, 8 million children still out of school, The Hindu, April 2, 2011

Stifling voice of complainants impede anti-bribe fight by Prof. Madabhushi Sridhar, Professor, Nalsar

As the Union Government conceded the demands of fasting civil society leader Anna Hazare to constitute a joint drafting committee with equal participation to Government and civil society, there is a hope that an effective draft of Lokpal would emerge which facilitate easy and free complaining process and quick investigation leading to prosecution of corrupt in high places.

Most important factor to seriously attend to is the threat of imposing fines and jail terms for bringing complaints which will be an ante-thesis to fight gratification cancer. The Government’s Lokpal Bill 2010 is not just a strange embodiment of powerlessness but also possesses a hidden interest in blocking the complaints with penal threat. Being draconian against ‘complainants’ and ineffective against corrupt, the bill rises serious suspicions about dubious intentions of the law makers and that is why there is a nation wide response to the anti-corruption agitation led by Anna Hazare.  It is undemocratic and against basic tenets of equity and criminal justice to entrust tribunal with power of summary trial to penalize the citizen for raising voice against the bribery of public servants. The drafting committee should avoid two inherent defects- being weak against corrupt and strong against the voice of complainant, which defeat the purpose of the law. It is highly unbecoming for a Government, being in the thick of scams, to push such a bill, after 45 years of most frustrating wait of the people.

It is a contradiction to empower Lokpal to penalize complainant without giving it such power against proved corrupt public official.  The unreasonable Section 21(3) of the bill enables Lokpal to punish the complainant if ‘complaint is false and made with mala fide intention to harass the functionary’. Section 21(4) has provided that Lokpal could summarily try and punish such complainants with a minimum of one year imprisonment which may go up to three years, imposition of penalty up to Rs. 50,000 and compensate public functionary out of the fine amount. 

Nowhere in the world had any system of criminal justice punished a complainant for lodging a complaint if that turns out to be false. If the system does not facilitate the information and complaints into legal course of action, law could never take its course. If the complaint proved to be malicious and that led to prosecution of innocent the remedy available under the traditional law systems is action in a civil court under law of torts for the wrong called ‘malicious prosecution’, leading to a decree for payment of compensation for proved loss. If some one maliciously fabricates false evidence or gives false witness leading to capital punishment or imprisonment of innocent accused, he can be sentenced with severe punishment under Penal Code. 

Immunity for Bribe-giver complainant

Neither IPC, nor Prevention of Corruption Act PCA (1947 and 1988) provided punishment for complainant. Instead, two enactments against bribe provided immunity to bribe-giver from prosecution based on the statement (S 24 of 1988 Act). The hundred-and-fifty-year old Indian Penal Code was the basic tool for combating corruption in public life. A chapter in IPC on ‘offences by public servants’ consisting of sections 161 to 165 provided a legal framework to prosecute corrupt public servants. Post Second World War scenario of corruption was serious, as unscrupulous elements exploited shortages of law to siphon off huge amounts of public money. The Prevention of Corruption Act 1947 was a drastic legal measure to fight evil of bribery. Without redefining ‘public servant’ and other IPC offences, this law added a new offence ‘criminal misconduct in discharge of official duty’ with stipulation of enhanced punishment from minimum of 1 year to maximum 7 years.  

Provision of immunity to bribe-giver was considered necessary as he might have been forced by circumstances. If this immunity was not provided, all complainants would become liable for punishment, which would deter them from giving complaints against any corrupt public official. When PCA 1988 replaced its earlier version of 1947, the provisions of immunity to bribe giver were retained. This fact is mentioned in paragraph 3.1.3 and 3.2 of Fourth Report of Second Administrative Reforms Commission, chaired by Mr. Veerappa Moily, the then Union Law Minister, under title “Ethics in Governance”, submitted to the UPA Government in January 2007. It is bit of shame that the same Government moves the bill with a deterrent punishment threat to complainant, in utter breach of its own report. Though Jan Lokpal vehemently opposed the jail term to complainant, it favoured financial penalties, which also has deterrent effect. When substantial criminal law offers immunity there is no reason to threaten the complainant.

As the Lokpal is expected to be watchdog over the integrity of Ministers and Members of Parliament, there is a need to strengthen complainant against politically strong and powerful office holders against whom the complaint is made. There is every possibility that the corrupt leaders and bureaucrats of ganging up and disprove the allegations made by complainant, who does not have any equipment or infrastructure to prove the corruption. The Ministers or MPs would have total control over the men and machinery where the corruption occurred and it would be almost impossible for the complainant to prove it. While under anti-corruption law the state takes responsibility to prove charge of corruption against the accused public servant, Lokpal burdens the complainant to prove it with a threat of penalty.

Shifting the burden to accused

If public servant is proved to have accepted any gratification, this law provided that ‘it shall be presumed that the public servant accepted such gratification as a motive or reward under section 161 of IPC (now Section 7 of Prevention of Corruption Act, 1988). This is a very significant presumption that shifted burden of proof to the accused to convince that he was not guilty, unlike the general law where prosecution has to prove the guilt of accused.  While the bill provided one year time frame to investigate and prosecute, it gives power to try ‘complainant’ summarily, which is another baffling provision that terrorize the reporting against bribery.

There are some more meaningless and format based restrictions which discourage complaints. Section 12(2) seeks filing of memorandum of allegations only in a prescribed form, with fee and deposit of an amount of money as mandated. The complainant has to submit the certificate of deposit also. Only exception provided is that a person in any jail or place of custody or in any asylum or other place for insane persons. Their letters will be considered as memorandum of allegations though not in prescribed form.

Draconian

Another draconian provision of the Bill is that Lokpal can punish with six months of imprisonment any person who intentionally offers insult against Lokpal or members of it while verifying the complaint. (Section 19) The bill does not use expressions like contempt of defamation, but penalizes ‘insult’ without defining what it is.

The drafting committee should keep in mind that entire nation now woke up to watch how the provisions of the bill are evolving and avoid all unreasonable provisions which weaken complaining mechanism. 

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The Law of Life and Death: Passive Euthanasia by Prof. Madabhushi Sridhar, Professor, NALSAR

To lay down law of life and death, the Supreme Court took the opportunity provided by Pinky Virani in her writ petition seeking permission to end life of terminally ill Aruna Shanbauh, a rape victim lying in vegetative state for 37 years. Disallowing the petition, which means allowing prolonging life of Aruna, the Supreme Court said passive euthanasia could be permitted only when the High Court offers a considered opinion. It also visualized legalizing of passive euthanasia. This reminds that our Parliament is yet to fulfill obligation of enacting a code for terminally ill people like Aruna. Union Law and Justice Minister M. Veerappa Moily went on record saying that the government was examining whether a fresh legislation was required to permit passive euthanasia. The bench of Justices Markandey Katju and Gyan Sudha Misra clarified that until Parliament enacts a law, its judgment on active and passive euthanasia will be in force.

Passive or active euthanasia
The bench explained the terms: “Passive euthanasia would occur when medical treatment is withheld or withdrawn leading to the death of a terminally ill person. Active euthanasia is generally referred to a state where a patient is given a lethal injection or through any other method allowed to die in presence of doctors, while passive euthanasia involves withdrawing the life support system from a patient…. passive euthanasia can be voluntary and non-voluntary. It is voluntary if the patient requests mercy killing”.
The court explained the difference between voluntary and non-voluntary euthanasia. Euthanasia conducted with the consent of the patient is “voluntary euthanasia”, which is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the U.S. states of Oregon and Washington. When the patient brings about his or her own death with the assistance of a physician, the term “assisted suicide” is used. If euthanasia is carried out on a patient, who is not in a condition to express his or her desire to die, it is called non-voluntary euthanasia. Examples include child euthanasia, which is illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol. In Colombia, the Supreme Court ruled in favor of mercy killing in 1997 and recommended removing penalties over it, but Colombian Congress did not pass any guidelines. If three or four members of family agree, it is legal in Albania. In 1995, Australia’s Northern Territory had approved a euthanasia bill. It went into effect in 1996, but the Australian Parliament overturned the bill the next year. Both forms of euthanasia are illegal in Switzerland; assisted suicide is penalized only if it is carried out “from selfish motives”.   Ireland opposed active contribution for ending the life while legalized removal of life support systems.  In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Though active euthanasia remained illegal in Norway, it has softened penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act.  The Supreme Court of India has allowed passive euthanasia under “exceptional circumstances” it has made clear that active euthanasia is illegal.

Referring to the contentions, Justice Katju wrote: “There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision. We agree with [senior counsel] Mr. T.R. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General [G.E. Vahanvati] that it should never be permitted.”


Next Friend
Deciding who ‘next friend’ is, the Court held:  “Aruna Shanbaug's parents are dead and other close relatives have not been interested in her ever since she had the unfortunate assault on her. It is the KEM Hospital staff  who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug should be allowed to live.”

Who decides?
While laying down the principles under which the passive euthanasia could be allowed, the Bench did not leave the issue to the relatives or next friends or medical experts’ team but, rightly preferred the High Court to decide it with judicious application of mind.  The Bench suggested the High Court could pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person. The High Court should seek the opinion of a committee of three reputed doctors to be nominated by it. The committee should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court which should appropriate orders on the application seeking withdrawal of life support.


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Farmer suicides-causes and remdies

Introductory:The farmers suicides was an aspect which has compelled me to study the causuative legal and economic  factors in an overall  political and economic globalisation and came to the conclusion that the underlying rigidity attached  legal and ecoomic rights of  ownership,possession, and control and management of farmer as owner cum possessor as all- in- one- person is resposnsible for low productivity and price irresponsiveness leading to indebtedness and helplessness with no other remedies left open to him in the legal and economic  system and that this all- in- one- farmer has to be tranformed to legal ownership rights  as seperate from possession and management rights as has happened  in industry. this led me to further  conclude to devise a model for seperation of right to   legal ownership of farmer  from the possession and management of rights in land to free the farmer from immobility and to induce price responsiveness,to  promote capitalist  and corporate relationship in agriculture and its consequensual equi -distribution of developmental entitlements so as to unleash the advanced productive forces and producitivity on par with industry on global scale.

question no 1: The question arises as to how this all- in- one in farmer is responsible for low productivity,lack of price resposiveness leading to indebtedness and helpelssnes with no other avenues left open to in the legal and economic system?

and question no 2:  how the seperation of owneship rights from possession and management of land will over come this state of affair and lead to advanced productiveforces in agriculture and productivity and its consequencial equ distribution of developmental entitlements.?
  Aamsmith and division of labor:Adamsmith equated the division of labor as an index of level of develoment and productivity. division of labor implies specialisation of labor and employemnts. a specialistion of labor and employment implies   product specialisation and abridgement of labor time per unit product and their by continual abridgment of overall labor and capital  costs of production with technological developments. But he opined that this division of labor is not possible in agricuture and he has not entered in to any enquiry in to the alternative modes landed property relationships where this division of labor compatible even in agricultural landed property.
division of labor is  incopmatible with the farmer as the exclusive owner  of land as well as labor in his own field as an all in one which itself is subject to vagaries of uncertain natural seasons and there fore it was not possible to enhance its productivity to the level of industry and its pattern of production.

By the time of Adamsmith, the corporate companies with joint stock capital ,of its height in east india company and the banking and  financial  and other stock markets were already known and practised but it was the opinion that such corporate structure is not possible in agriculture due it's nature of property in land as an immovable nature and the nature of  exclusive ownership of farmer which include the possession and managenet
some experiments on the lines of cooperative farming, joint land stock farms were made where collective/corporate  ownership or or joint ownership or coperative parnership type owneship where people pooled the land capital and labor together and worked together  to share the product and profits in defined manner.But they have proved to be inefficient and counter productive abondoned in many countries. what went wrong with these models?and how individual holding as a general form of agricultural farming has become the rule in an universal form. and how this general form is turning the obstacle to growth and development  of farmer as well as the nations in the globalisation process.?.

Before we answer those questions, we have to analyse the process of production, its marketing,its different component parts and their legal rights,duties, and entitlements  in agriculture and its difference with industry.
 in agriculture as well as in industry, the combination of  factors of production is a condition precedant. land/land owner/land lord, labor/owner of labor /laborer and capital/owner of capital/capitalist. for production of any commodity for sale in market. we assume that market monetary  relationship is predominanat in agriculture in the sense the farmer will produce the goods for market and purchase the goods in market for his own consumption.
we know that the owner of land as well as owners of other two factors of production will normally try to maximise the productive power of their own factor and try to maximise their his own interest when he enters in sale or prchase contracts with other owners or or their agents.we call  this in legal jargon the prudent man or reasonable man approach in contracting or avoiding any statutory or other liabilities as well as acquiring any statutory benefits or even in tort jurisprudence.
 the ownership of land is to be subdivided in to  ownership of land and ownership  of rights in or over the land and its use. Ownership of rights in or over the land use  is an inclusive definition where any right conferred or contracted may be added.and the sum total of all rights should add to value of ownership of land.or  the total rights of owner of land.
Lease of land to tenanat is contracting of mere limited right to exclusive possession with enjoyment for specified time in exchange of negotiated price/rent  offered and accepted by the owner of land or his agent. so lso the licencee of previlege conferrd or contracted to enjoy the right to possession for specified period for price/fee offered and accepted by the owner of land.  mortagage is also a tranfer of limited right with or withour possession subject ot such terms and conditions as the parties may agree with on exchange of money or capital to the owner of land.similiar relationships of innumerable character may be created and entered by the owners of right to factors of production or marketing in the shape of parteis to contracts in exchanging the rights in the nature of monetary or tangible or intangible properties.
In all these transactions of parties, one common element all pervading is the concept of law, rule of law which recognises and enforces the contracts or other relationships through its machinery of law courts and other forums while the law permits,creates,and recognises and extinguishes  the rights.
This brings us to analyse the common and distingushing aspects of law of property in land ,property in capital, property in labor.
 We have noted that division labor is an index of development and producitivity and such division of labor is found to be incompatible with agricultural landed property and productions system with owner cum possessor cum manager cum worker  of  agricultural farms which is also higly dependent on natural seasons.
In industry, an employer purchase /hires the labor for money or other equivalant  to produce the goods for market and in the market sells the produced  goods for money to make a profit out of his enterprise.He always try to maximise the profit by minimising the costs of production taking the market price as given.If his average costs of production is more than the market price at which he sold the goods he will suffer loss and go out of business or become bankrupt under the insolvency act.If it is corporate body, the same holds good except that the liability of share holder being the limited by shares and burden of losses are spread to its creditors and other agencies including the state. so the bottom line for individual capitalist or corporate body in market competetion is the average cost price to be equal to price of commodity sold.
The management and control  structure in industry or corporate bodies  is based on the divorcement of ownership from management and control.The ownership of corporate body as a seperate entity with right to sue and be sued on its own name  is different from ownership of shareholder.the control and management is is vested in general body of shareholders and board of directors and its executive agent the chaiman and managing director  or other delegatees.The boards of directors and managing or executive directors may be drafted from expert professional managers of their own concerned fields including marketing and other branches.The managemt courses have become top class paid  jobs in modern corporate world of businessess.This is a reflection of   Adamsmiths' an expanding field of division labor and emloyment and abridgment of labor time
 The ownership right over the land  has not been divorced from right to possession,management, and control. He is the owner,possessor,manager,producer, marketer, and controller.He alone has the right to sue,to be sued in his own name.He has no advantage of limited liability. he has no education,capacity nor the necessary capital to employ paid expert directors or managers of production as well as marketing.Neither has the credit worthiness with banks to raise necessary capital  to work on modern methods of production and management to minimise the costs of production so as to be able sell his product in  the market with profit as a  market strategy .The land ceiling laws, legal restrictions on the transfer and use of  agricutural land as well as to raise the capital on the security of agricultural land from banks and financial institutions, are some instances of obstacles to convert agricultural land ownership rights to  corporate ownership models and himself to gain the personal freedom  of mobility from the bondage to land and its personal cultivation. The indian economy now dominantly being integrated to global markets and  indian agricultural product price behavior is increasingly being subjected to global markets' supply demand fluctuations. The non responsive indian farmer to these fluctuations due to his farm sizes,traditional farms cultivation and management, accounting behaviour is at greater risk of losses than gains and consequential debt trap and loss of land and livelihood and security to his  life  and liberty in the social life.

He has no guarantee of limited liability like in industrial or corporate law. his liability for his entreprise is unlimited and in case of debts to lending banks or other private agencies, they can also get the farmer detained in civil prison for not dischaging his civil liability apart from putting the land to sale in open auction .He can not aquire more land than land ceiling law permits, he  can not  terminate the lease of land without legal permission from competent authorities and cannot refuse to pay the minimum agricutural labor rates in locality, has no power  to borrow industrial or business loan on mortagaging his land.In the result, he is tied to land as the owner as well as possessor, manager and labor i.e all in one combined person which is incompatible to division of labor like in industry.
The mangement and control structure in farm management is not based on divorsement of ownership from management and control.It  is incompatible with corporate structure and its rights, previleges, and liablities both under common law and statutory law. it is not based on business model  or its accounting model which is a must in a  market determined price based on free competetion with fredom to entry and exit farm cultivation business and minimise thecost production while maximising the profit out of business . In a traditional model now adopted in india,owner himself has to own, manage, control,  with right to sue and be sued  and suffer consequeces of own acts and omission as well as involuntry inexorable effects of  acts and omissions of markets and governments. he has no resource to know the market or other relevant information or market statics nor the capacity to acuire such knowledge.

New model:  There fore, the root cause of farmers continous defaults in mantaining his agricultural business is the incongruence of his farm model now adopted in india and most other countries including the china and there is need to change the agricutural policy to the new model of divorcing the right to  ownership of land from right to possession and management of land as suggested by me or any other model akin to it to fall in line with globalisation of markets and market prices.(for more elaborte reasons plese see my article on  land reforms -globalization.(www.aplegalservices.com)

http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/84.html by S. Lakshma Reddy

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CRITICISM OF THE JUDGEMENT PASSED BY THE DELHI HIGH COURT IN THE NAZ FOUNDATION CASE: Arguments against Decriminalisation of Homosexuality

On The Indian Penal Code

By the middle of the 19^th 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. Emperor, AIR 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 aliahuman 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. Orissa, 1992 (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 Bihar, AIR 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.

For more http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/134.html by Soumyadeb Sinha(4th yr.) Department of Law, Calcutta University(Hazra Campus)

"Good death" or "bad life" by Madhubanti Sadhya

How painful and excruciating can life get that one wishes to put a premature end to it? Who decides whether we should live or die when embracing death seems far more soothing than an agonizing existence which cannot be termed as ‘living’ in the true sense of the term? Well in a country like ours unlike Netherlands, Luxemburg, USA, United Kingdom where euthanasia or ‘mercy killing’ as it is known in common parlance, either in its active or passive form has been legalized, we let nature take its course.
            Aruna Ramachandra Shanbaug, who has been confined to one of the rooms of King Edward Medical College, Mumbai for the past 37 years has earned the world record of being the longest staying patient in any hospital. But this is definitely not the reason behind her being the talk of the town. She has been ‘living’ in a vegetative state, her eyes staring voidly at nothing in particular since the night of November 27^th 1973. The reason being a ward boy who had tied a dog chain around her neck, thereby cutting off air supply to parts of her brain and had sodomized her in the basement of the hospital.
          Journalist-activist,  Pinki Virani’s plea of euthanasia for Aruna Shanbaug has once again raised the question in our minds-How merciful and benignant is our judiciary and if Article 21 of the Indian Constitution guarantees to its citizens the right to live with human dignity then why are the terminally ill not awarded a dignified departure from their distressful and discomforting lives?
         The Union Government has rejected the Law Commission’s recommendations on euthanasia.The commission in its 126^th report had recommended to the government, “if a person is unable to take normal care of his body or has lost all senses and if his real desire is to quit the world,he cannot be compelled to continue with a painful life. Hence a dying man who is terminally ill or is in persistent vegetative state can be permitted to terminate it by premature extinction of life.”  G E Vahanvati, the attorney general of India thinks otherwise. He has been quoted as saying that western norms are not applicable to Indian conditions and culture. Moreover the plea for euthanasia if granted may be misused by the relatives of the patients in collusion with the doctors. Amicus curiae and senior advocate T R Andhyarujina is of the opinion that the nurses and staff of KEM hospital who have taken care of her for 37 long years have made no such plea. This is where the problem lies. The hospital’s counsel, advocate Pallav Shisodia too has opined that since the nurses and staff have made no such plea, the petition submitted by Virani should be dismissed.
         Dr Ravindra Dhelia, a member of the Society for the Right to Die with Dignity says, “Voluntary euthanasia is not about ending a life but it is about ending a deadened survival. As far as Aruna is concerned, mercy killing is a dignified exit.” But Sanjay Oak, dean of KEM hospital begs to differ.KEM has issued a factual counter-affidavit stating, among other things, that Aruna is “haemodynamically stable”, her “blood pressure, pulse rate are normal” and that the hospital is taking care of her because her relatives refused to do so.
        Some questions still remain unanswered- who decides whether death is more precious to some than mere animal existence? Whose views should be taken into account if at all euthanasia is legalized in this country-the patient’s or those who look after him? Which of the two is more painful-to see one who is terminally ill slowly pass into oblivion or to be in such a state which guarantees no dignity but is still called ‘life’? Undoubtedly Aruna’s case is dicey. Although Pinki Virani’s intentions are not malafide the question that the dean of KEM has raised is,”unless the ailing person himself or herself expresses the desire who are we to decide that he or she should no longer live?”
         Aruna may be considered lucky in one way or the other since her plight has seen the light of the day. There are several cases in our country and around the world where death has taken its own sweet time to ease the sufferings of those for whom one extra breath that they take is more horrendous than death itself. Undoubtedly the right to live with human dignity does not guarantee us the right to end our lives according to our whims and fancies but is the life of a man in a persistent vegetative condition worth living? Until euthanasia is legalized in our country I am forced to ask the million dollar question again ,”does the life of a terminally ill patient come within the purview of the term ‘life’ as we understand it under Article 21 of the Indian Constitution”? If the answer is no then it is high time that this country does something worthwhile in this regard.

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