ISBN-978-81-933579-1-0

OPINIO JURIS
An International Refereed Research Journal

VOLUME 1 ISSUE 2 APRIL 30 2020

Editor-in-Chief

Dr.Sharath Raj
PUBLISHED BY
INTERNATIONAL FORUM FOR RESEARCH AND ANALYSIS
# 918, Sahukar Chennaiah Road, T.K. Layout, Mysuru-570009
ISBN-978-81-933579-1-0

OPINIO JURIS

Editor-In-Chief
Dr.Sharath Raj BAL, LL.B ,LL.M ,P h.D.

Advocate, Mysuru

Members of Editorial Board

Dr. T.R.Maruthi MA, LL.M, P h.D.
Professor of Law,
DOS in Law, University of Mysore, Mysuru
IVCLJ-2020, Conference Convener

Dr .Mohan Kumar H.S.MA, M.P hil, P h.D.

Guest Faculty, University Evening College,
University of Mysore, Mysuru

Prashanth T.M MA,LL.M, (P h.D .)

Assistant Professor of Law,
VVLC, Mysuru

VOLUME 1 ISSUE 2
Published By: International Forum for Research and Analysis
Cite this Volume as OJ, VOLUME 1 ISSUE 2, April 30, 2020
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OPINIO JURIS

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TABLE OF CONTENTS

SL. AUTHOR TITLE PAGE

NO NO
1 AISWARYA R HORMIS RELIGION- AN EQUAL ABODE FOR ALL GENDER 1-8

2 Dr. JA YASHREE. M DEMOCRA CY AND HUMAN RIGHTS 9-28

3 SUJATHA .J.K & HISTORICAL EVOLUTION OF W RIT OF HABEA S 29-35

PROF.DR.C.BASA VA RAJU CORPUS IN INDIA

4 KA VEYA .P THE WORKING OF NGO AND ITS IMPA CT ON 36-48

THE SOCIETY

5 MEENAKSHI RAJ WOMEN EM PLOYM ENT – A CONTINUOUS 49-59

STRUGGLE

6 MOHD. ATA HASAN COPYRIGHT PROTECTION IN CYBERSPACE: 60-72

COM PARATIVE STUDY BETWEEN INDIA AND USA

7 NEHA L MISRA & NON REFOULEM ENT CONVENTION AND JUS 73-83
SHIVANSHI GUPTA
COGENS: THE PATH TO PROTECT REFUGEES
AMIDST CORONA

8 84-93
SWATI BUNDWA L & PRISON LIFE MATTERS: HUM ANIZING THE JAILS
APARNA SRIDHA RAN

9 TUSHAR KATHERIA INTELLECTUA L PROPERTY RIGHTS IN 94-100

RELATION WITH ENGLISH PREMIER LEA GUE

10 YA SH SHIRA LKA R LIT IGATION FINANCING IN THE REALM OF 101-107

INTERNATIONAL A RBITRATIONS IN INDIA

11 YA SHWANTH A S ELEVATION AND TRANSFER IN THE INDIAN 108-117

JUDICIA RY: A N ASSESSM ENT

12 YOGENDRA KUMA R COMPLETE JUSTICE UNDER A RTICLE-142 118-133

KUMAWAT
OPINIO JURIS, VOLUME 1 ISSUE 2
APRIL 30, 2020

RELIGION- AN EQUAL ABODE FOR ALL GENDER

*AISWARYA R HORMIS1

Religion can be defined as a set of guidelines that govern the actions of human beings
and is propounded and proclaimed by humanity. Most religions picture women solely as
nurturers, whose purpose on earth is to procreate, raise and look after her children, and serve
her husband. Discrimination of women can be perceived through almost all religious texts. It
is practiced in several countries regardless of religion, caste, culture, education or income.
There are numerous instances of religious discrimination of women in India. The prevalence
of Sati, dowry, the rising number of female foeticides that hamper the sex ratio especially in
states like Haryana all are evidences of patriarchal power and belittling of women. Women
are looked down socially, religiously and economically. Their role in society has been
restricted to household chores and their lives revolve within the four walls of their house.
Religion is considered as a system through which women find inner peace. But this privilege
is often denied to them. An April 11 Pew Research Centre analysis of 198 countries ranked
India as the fourth worst in the world for religious intolerance. 2 There is gender inequality
practiced in almost all religions.

Taking the example of the Bible, we are aware of just a few women like Mother Mary
and Mary Magdalene. Whereas God is given the attribute of a man and even Jesus Christ is
said to be born as a man. Also, we have been taught that Mary Magdalene was an adulteress
and an immoral person. But the Papyrus Text from Egypt reveals that this information is
highly inaccurate. Moreover, she is seen as the one who led many women into leadership.
Also when we take the status of a Pope or a Bishop it is always a man who takes this position.
Women are allowed only to become Nuns and very rarely or never do they get the same status
as a Pope or a Bishop. In Christianity men and women are both considered equal and have
equal opportunity and right to become apostles and bishops. But in the New Testament, it is
said that Jesus appointed only males as Apostles 3 .

1
STUDENT,6TH SEM ESTER, NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES
2
Quartz India, https://qz.com/india/959802/india-is-the-fourth-worst-country-in-the-world-for-religious-violence/ , (last
visited on 27th march, 2020).
3
Cram, https://www.cram.com/essay/Women-s-Gender-Roles-In-Religion/FKK4HP35J , (last visited on 26th M arch, 2020).

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Discrimination can be noticed in the Hindu religion. In Vedic Hinduism, women enjoyed the
same rights as men. In Ancient India, women were considered sacred and held a very
important position. This is evident through the Mahabharata which shows the fall of the
Kauravas because they humiliated Draupadi. Women were worshipped as goddesses to give
them respect. Women were entitled to receive Vedic education and some were even called
4
“Brahmavadinis” who composed shlokas in Vedas. The unmarried women are seen offering
Vedic sacrifices. There are some instances of women sacrifice till 500 B.C like Sita sacrifice
to promote rich harvest, Rudrabali to ensure prosperity, Rudrayaga to secure good luck for
maidens in marriage and so on. 5 But as time passed women lost their value in the society.
During the period of Smrithi, women were considered as lower caste and denied the right to
education. The ideals of unity and equality started to fade away. The current practices make
us conclude that Hinduism is based on the patriarchal notions, male domination and results in
subordination of women. Though a few sections of Hindus believe that women are supreme,
the majority believes they are not. Women have accepted such a status owing to the ethics and
codes of conduct practiced. 6 Women were excluded from religious services and rituals
because men had a preconceived notion that they are unclean during their menstruation
period. Manu scripts provide evidences of discrimination of women and believed that women
should be subordinated to their fathers, son, and husband. They had neither property rights
nor adoption rights 7 and were considered as mere chattels of a patriarchal society.

Another issue connected with discrimination of women is child marriage. Girls were forced to
marry the groom chosen by their family from the tender age of eight. Women came to be
considered as properties of men. It was conceived that men could treat women however and in
whatever manner they wanted. Women who belonged to the high class or the Agra Varnas
were given education and led a comfortable life. But life wasn’t so luxurious to ordinary
women. Yet they were eligible to be considered as an all- rounder as they had sufficient
knowledge about morals, values, rites, and rituals. Also, the practice of polygamy was not
uncommon. In ancient times, women had equal status as that of men. But in the medieval era,
their status started degrading. Women were faced with discriminatory practices such as child
marriage, sati, dowry, restriction on widow marriage, etc. though women have held prominent
positions in the olden times it is often overlooked or ignored. Their efforts are undervalued
and they were restricted from showcasing their full potential.
4
M adhavi D. Renavikar, “Women and Religion”, P g 36, Rawat Publications, 2003.
5
M adhavi D. Renavikar, Women and Religion, P g 37, Rawat Publications, 2003.
6
M adhavi D. Renavikar, Women and Religion, P g 31, Rawat Publications, 2003.
7
M adhavi D. Renavikar, Women and Religion, P g 38, Rawat Publications, 2003.

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As a remedy for the atrocities faced by women, Raja Ramohan Roy in the 19 th century
undertook a reform movement for women as he realized the importance of them. Initially, the
movement was led by men only. But gradually women started involving in the movements.
We see traces of women fighting for our independence. Some notable names are Kasturba
Gandhi, Jhansi rani, Sarla Devi, Muthu Lakshmi Reddy and many more. Yet even after the
independence of India, the concept of gender inequality has not been washed from the face of
religion. It has become a part and parcel of a patriarchal Indian society.

Recent Cases

A famous example of gender discrimination in religion in the current scenario is the

Sabarimala case. Taking a feministic approach, the author perceives discrimination of women
in the name of religion by not allowing them to enter the Lord Ayyappa’s temple at
Sabarimala during their menstruation period as an anti-Hinduism practice which is
encouraged by a male-dominated Hindu society. The reason of the Travancore Devaswom
Board, which has the responsibility of maintaining the temple, is that it is done so to pay
respect to Lord Ayyappa, who was a Naishtikka Brahmachari and also it is assumed that it is
not physically possible for women to withstand the difficulties of days of celibacy like men.
8
They believe them women become impure during their time of menstruation. A biological
process that is essential for the continuation of life on earth is deemed to be of an impure
status. The High Court of Kerala in its judgement for the 1991 Sabarimala case said that the
restriction of entry of women was in accordance to the traditional practice and not
discriminatory neither under the Indian Constitution ( articles 15, 25,26) nor the Hindu Places
of Public Worship (Authorisation of Entry) Act, 1965 9 . But now the Supreme Court is
questioning the logic behind this restriction and also seeks proofs of women not entering the
temple in historic ages. Though the courts generally don’t involve in religious matters in
India, when there is a question of violation of equality given under Article 14 of the Indian
constitution, it intervenes and sought to provide justice.

Muslim women are also subject to gender inequality in religion. They are not permitted to
enter mosques, which is their place of worship. The practice of Triple Talaq is highly
criticized with for in this respect. In this, the husband just had to repeat the word “Talaq”
thrice and divorce was rendered to him. It needn’t be through verbal actions. It can be written,

8
The Hindu, https://www.thehindu.com/news/national/will-sabarimala-temple-open-its-doors-to-
women/article14244058.ece1, (last visited on 25th M arch, 2020).
9
Ibid

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oral, or even through using modern applications such as Whatsapp. A woman filed a case in
the Supreme Court questioning the validity of a divorce taken on flimsy ground. The Supreme
Court verdicted by saying that this practice was highly discriminatory and questioned the
legality of a divorce done without following the due process of law. The main problem that
can be noted is that only a man can do Talaq on his wife. It does not apply vice versa. Often
post this event the wives are not given sufficient amounts as maintenance. Half of Muslim
women in India do not have any educational exposure, and only 14% have worked outside the
home, according to a 2014 study by the Bharatiya Muslim Mahila Andolan, a Muslim
10
women’s advocacy group. There was a huge opposition from the All India Muslim Personal
Law Board (AIMPLW) regarding the involvement of the court in religious matters. What the
government and the Muslim Personal law board should do is to bring a consensus between
liberalism and rigid traditions followed in India. If Muslim countries like Pakistan,
Bangladesh, and Iran and so on abolished the practice of Triple Talaq the validity of this
practice highly questionable. India needs to adopt the same fashion as that of these countries.

What one has to remember is that India is a secular country. It is a sad scenario that even after
70 years of independence, women in India are still struggling to get equal acceptance and
status as that of men in religion. The secular approach of India is seen only in theory. In
practice, the country contradicts its propagations. It is the fundamental of the right of every
citizen of India, regardless of the gender, to practice, profess and propagate any religion.
Hence it is not ethically and socially right to exclude and alienate women of their right to
religion in the name of tradition. Spirituality should not be considered as a benefit exclusive
for men. Jeremy Bentham, who belongs to the Positive school of thought, propounds the
concept of utilitarianism. He advocates for the greatest happiness for the greatest number.
When gender inequality is practiced a majority of the population becomes unhappy which
distorts this idea. Religious gender inequality also violates Article 21, which is a first-
generation human right, which provides for Right to Life, in the sense that women are
deprived of a right to peaceful life which they sought to derive through prayer and religion. A
lacunae noticed in the Indian Constitution is the interpretation of Article 15. It prohibits
discrimination based on caste, religion, gender and so on. But it does not specifically include
11
temples or other places of worship. Without a constitutional provision to prevent
discrimination of women in places of worship, every action propelled towards this issue
10
The New York Times, https ://www.nyti mes.com/2017/05/28/world/asia/india -di vorce-muslims-islam-women.html , (last
visi ted on 25th Ma rch, 2020).
11
The Indian Consti tution, Arti cle 15.

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would stand weak. Equality before the law is guaranteed by the Indian constitution through
article 14. Article 14 states that “state shall not deny to any person equality before the law or
12
the equal protection of the laws within the territory of India”. Women are considered as
more spiritual and religious than men. But they lack the religious authority to practice it.
What is needed is a change in the traditional customs practiced by various religions. Efforts
have been taken from the pre- independence time for the unification of customs and religious
laws. For example, the Muslim law underwent a series of reforms in the 1930s, with the
enactment of the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of
13
Muslim Marriage Act (DMMA), 1939. The former law imposed unification of all Muslim
laws into one Shariat law and the later law gave women the right to d ivorce. In contrast, in
Hindu law, women were neither given the right to divorce nor the absolute right to inheritance
except a few states like Kerala and certain North-Eastern states. The Hindu Marriage Act,
1955 made marriages of Hindus a dissoluble contract and imposed monogamy on Hindus.
14
The Hindu Succession Act, 1956 improved the inheritance right of women. Many more
acts such as The Hindu Minority and Guardianship Act, 1956, Hindu Adoption and
Maintenance Act, 1956 etc. which were envisaged as steps taken towards a Uniform Civil
Code. But this vision is yet to be fulfilled. The question tha t arises here is why a Uniform
Civil Code has not been implemented in India when it is already implemented in its
neighbouring countries like Bangladesh, Nepal, and Pakistan. It is highly argued by feminist
academicians that all personal laws contain discriminatory practices against women.

While the fight for gender equality in religion continues there are few positive instances like
the Shani Shingnapur temple event due to the continued efforts of groups of active feminists.
In this case, they have finally allowed women to enter the Shani Shingnapur temple in
Maharashtra, breaking down a 400- year old custom. The Bombay High Court, in this case,
made it clear that the State government had a responsibility for the proper enforcement of the
Maharashtra Hindu Places of Worship (Entry authorisation) Act, 1956. 15 The struggle for
temple entry was primarily started to ensure equality to the Dalit to the rest of the society but

12
The Indian Consti tution, Arti cle 14.
13
Tanja Herklotz, “Religion-based Personal Laws in India from a Women’s Rights Perspective: Context and some Recent
Publications”, Sudaisien-Chronik-South Asia Chronicle 5/2015.
14
Tanja Herklotz, Religion-based Personal Laws in India from a Women’s Rights Perspective: context and some Recent
Publications, Sudaisien-Chronik-South Asia Chronicle 5/2015.

15
The Hindu, https ://www.thehindu.com/news/na tional/other-sta tes/shani -shingnapur-temple-li fts-ban-on-womens-
entry/a rti cle8451406.ece , (last visited on 26th M arch, 2020).

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it can also be used as a tool to uplift women to the equal status of men. This entry was
allowed after the continued efforts of a women activist group led by Trupti Desai.

Another notable case in this respect is the Haji Ali Dargah case in which the Bombay High
Court, in agreement with the concept of Ambedkar on equality of Dalit with rest of the
society, verdicted that the exclusion of women from entering the Haji Ali Dargah violated not
only their fundamental right of religious freedom but also right to equality and against
16
discrimination provided in the Indian constitution. Article 25 (1) of the Indian constitution
states the right to freely practice, profess and propagate religion and right to freedom of
conscience keeping in mind the principles of public order, morality and health. The Supreme
Court has in many instances used the essential religious practices test to test the legality of
traditional religious practices. The same has been adopted by the Bombay Court in this case.

Despite the active efforts of women groups, feminists, scholars and gender-sensitive entities,
discrimination of women persists in almost all religions either implicitly or explicitly.
Prohibition of women into the shrines or temples on the sole reason of their biological
features is highly derogatory and violate of Article 51A (e) which imposes a duty on the state
to ensure that every citizen in India promotes harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional or sectional
17
diversities; to renounce practices derogatory to the dignity of women. Though women now
have liberty to enter the inner sanctum it is not yet to be exercised as the Durgah Trust is
preparing to appeal against the verdict given by the Bombay High Court. According to the
author’s analysis what has happened in the various cases mentioned above, men have
misunderstood the meaning of feminism and have seen these practices as a weapon against it.
Feminism is not really about equality, but rather it is about finding opportunities to expand
and grow in accordance with the acceptance of the household chores of women. I strongly
agree with the words of B.R Ambedkar who said that religious institutions and worship places
are meant for the public and hence the entry into them raises the question of equality.
Unfortunately, this is not a common notion. People have mistaken the interpretations given in
religious texts. Islam states that both men and women are equal before God. When women
wear Pardha it must not be seen as a sign of subordination of them to men. It is a mere sign of
modesty. Now let’s take the example of Hinduism. Religious scriptures considered women as
the most sacred form of humanity on earth. They worship women goddesses like Parvathy
16
Ibid.
17
The Indian Consti tution, Arti cle 51 A (e).

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and Saraswati. The discrimination faced by women in the name of Hinduism is not because of
18
the religion itself but because of the attitude of Indian men and culture. Let’s take the
example of the Bible. This Holy guide for Christians also propounds that men and women are
of equal status. God created men and women to pursue different responsible. The term
“different” should not be interpreted as “less than”. Most of the time it is observed that
illiterate men are misled and miseducated by the so-called “religious leaders” or “religious
pundits” and told that women are to be treated as inferior to men. It must be realized that no
cultural value or religion permits or advocates the oppression and discrimination of women in
its very essence. Everything depends on how different people interpret each religion and pass
on the teachings to future generations. There have been very few initiatives from the part of
the State to promote gender equality. The 73 rd and 74th amendments (1993) to the Indian
constitution provided for reservation of seats for women in the Panchayats and Municipalities.
The 84th amendment (1998) provides for reservation of 33 percent seats in the Parliament and
state legislature. But the extent of the success and implementation of these amendments is
questionable. It cannot be denied that the government has made efforts to promote women.
The Hindu Marriage Act (1955), the Hindu Succession Act (1971), the Pre- natal Diagnostic
Technique (Regulation and Prevention of measures) act (1994) are a few to name. In
connection with religious discrimination, another issue that arises is when the court intervenes
to ensure equality and freedom of religion to women, the Personal Law Boards question its
authority to interfere in religious affairs. The religious rights guaranteed under Articles 25 and
26 of the Indian Constitution is not absolute. The state can impose reasonable restrictions on
the grounds of public order, morality, health, fundamental rights and freedoms of others. “In a
democratic country religion is the matter of an individual and his beliefs. But if these beliefs
conflict with the matters of social welfare, then the state has the right to intervene”- says the
Bombay High Court. 19 Furthermore, Article 13 of the Indian Constitution which talks about
judicial review makes it clear that any “law” that violates any fundamental right is void. Law
includes customs or beliefs having the force of law. The Universal Declaration of Human
Rights (UDHR) of which India is signatory, requires that all citizens get the freedom of
religion and the right against discrimination based on of gender. The International Covenant
on Civil and Political Rights 1966 of which India is a signatory, says that freedom of religion
may be subject to reasonable restrictions by the state for the afore- mentioned reasons.

18
Moni Basu, 9 Myths about Hinduism-Debunked, CNN, a ccessed on 28th Ma rch, 2020, 17:15pm,
https ://religion.blogs.cnn.com/2014/04/25/9-myths -about-hi nduism-debunked/ .
19
Shrungar Bhuva, Its Unconstitutional to Deny Women Access to Places of Worship, 28th M arch, 2020, 17:45pm,
https ://www.huffingtonpost.in/shrunga r-bhuva /gender-equali ty-a ccess-to_b_10474096.html .

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Conclusion

In light of the above - mentioned points, the irony in this 21 st century, which is characterized
by fast development and modernization, is that women have grown out of their restricted shell
which was the four walls of their house and have shown excellence in all spheres of life. They
have been successful in becoming Chief Executives of Multi- national companies, have been
elected as Prime ministers of various countries and have been able to hold eminent positions
in the society. Yet they are unable to secure equality in terms of religion. Most of the time
women face discrimination and restriction because they are not aware of their constitutional,
religious and social rights. Hence education and awareness campaigns for women is the need
of the hour. If women in Vedic ages were given a high status, why aren’t they given the same
in this modern era? This shows how narrow and closed the minds of the men in India are and
it needs to change. When we are all toiling hard to make India one amongst the developed
nations on a large scale, we tend to overlook issues of gender discrimination and violence
against women. We must realize that the development of a nation depends on the overall
development of its citizens which includes both men and women. The state should intervene
and ensure gender equality. The judiciary strike down laws and customs which provide for
gender discrimination against women by declaring them unconstitutional. Gender- neutral
laws are to be framed by our lawmakers. Since the principles of gender equality are provided
in our constitution through the fundamental rights, directive principles and even the Preamble,
the state has an explicit and implicit duty to protect women from religious discrimination.
Most of the time it is seen as women subject themselves to subordination to men simply
because they accept it as their fate. This attitude of women has to change. The active efforts of
women groups and feminists have resulted in women seen doing pujas and become religious
specialists. Women do calendric rituals whereas the Vedic rituals such as the opening of
20
temples, serving as priests, etc. More legislation like the 1966 Declaration on the
Elimination of Discrimination against Women, which pioneered against discrimination of
women and says that they should be seen equal to men. They need to become more self-
confident and with adequate help and support more women activists should come into the
light and fight for their rights. Moreover, it is the responsibility of all individuals of India to
ensure that their daughters, wives, mothers, and grandmothers get equal access and are free
from all sorts of discrimination.

20
M adhavi D. Renavikar, Women and Religion, Pg 31, Rawat Publications, 2003.

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DEMOCRACY AND HUMAN RIGHTS

*Dr. JAYASHREE. M 1

INTRODUCTION

This topic of democracy and human rights tries to focus light on the principles of
democracy adopted by the states which are on the democratic set up. This democracy of the
state is there to form the government of the people through their elected representatives the
intention of the government always be that of the welfare of the people by conferring
minimum basic rights to the public. Thus here the content tries to explain the democracy its
definition ingredients of democracy, meaning of democracy, essence of democracy,
foundations of democracy and the role of government in democratic country. Here the topic
has been discussed separately that is the democracy and the human rights because whenever
it is necessary the content itself interrelates with each other as the two faces of the same coin
if one has to keep the coin they have to give value to the both democracy and human rights.
Likewise with regard to human rights the definition, what are human rights, the development
of human rights, the international approach and the Indian adoption of international
covenants and National human rights commission and judicial activism with respect to
human rights is discussed under this article.

Democracy and human rights

A favourable geographic position, a moderate and stable climate that makes human
existence bearable, agricultural and industrial resources in a workable ratio to the population
not only existing but potential these factors in a combination that can provide at least
adequate food and modest amenities for all citizens are important ingredients of a democratic
society. But these are material factors, some of which, notably climate, may be difficult to
control, while others, like supplies of food and industria l raw materials, may be increased by
imports from abroad, by modernization of production techniques, and by new or as yet
unanticipated scientific discoveries.

Effective action to alter material factors, however, ultimately depends on the

effectiveness of human beings on their willingness and their capacity to change existing
conditions. Some democratic thinkers, particularly in the United States, are inclined to

1
Asst. Professor, School of Law, University of Mysore,Mysuru

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OPINIO JURIS, VOLUME 1 ISSUE 2

believe that the destiny of any given society depends on the “will of the people” or to put it in
current American idiom, on “group thinking” or “group dynamics”. Yet the experience, not
only of the underdeveloped non –western nations but also of the advanced nations of the
west, notably the United States, Britain, and France, demonstrates that even worldwide
mechanization has not eliminated the importance of leadership. The significance and
influence of the “charismatic personality” the individuals who believed or believes by others,
or most often both, to be one who is specially designated by the deity or by fate to play a
decisive role at a decisive moment in his peoples history, is not limited to Asia, the middle
east, and Africa, with Nehru, Sukarno, Nasser or Nkrumah. Nor is Russia unique in its “cult
personality”, be its Stalin or Khrushchev. The west too as late as the middle of the twentieth
century, has turned for guidance to, or found a father image in such varied personalities as
Hitler and Winston Churchill, Franklin D. Roosevelt and Mussolini, General de Gaulle,
Adenauer and Salazar.

These and other men have been significant not merely because they had the courage
to take risks and the readiness to make decisions in times of stress when others were fearful
and indecisive. Such leaders derive their strength and make their contribution to the times in
which they live because , and not in spite of, the traditions of their peoples. They may, and
often do, bring new ideas and practices from other lands and cultures into their own, but they
do so because , unlike foreign rulers, no matter how effective and selfless these may be , they
are regarded by the people, and so regard themselves, as an integral part of their community.
It is only because , whether intellectually or instinctively they are aware of the needs and
potentialities of their people, that they are able to infuse ancient customs with new meaning, ,
to stir a stagnant society into constructive action, to adapt and remould human material
formed over centuries or even millennia, to the demands of the nuclear age.

The democratic patterns we see in independent India are due solely, or primarily to
the guidance it received from its British rulers during the three centuries when first the East
India Company, then the British crown, played an increasingly influential part in the politic al,
economic, and educational formation of the Indian people. Yet both the Hindu majority and
the Muslim minority within the republic of India have long possessed the ingredients of
democracy, even if these have taken forms different from those of the democracy with which
we are familiar in the west.

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But while India was never a theocracy, its religious and social values were so closely
intertwined at the level of individual and group behaviour that the more “free” or “liberal”
atmosphere which in the west is associated with the separation of church and state did not
develop except in some outstanding instances. And, while India did not have a spiritual
hierarchy comparable to that of the Catholic Church that is an integrated disciplined structure.
The Brahmins exercised a powerful authority, and Hindu tradition acted on society as a
coercive and limiting force. Custom and tradition were pervasive, and only a few exceptional
individuals rose to the level of making conscious choices between theological paths.

Providence has not created mankind entirely independent or entirely free. It is tr ue

that around everyman a fatal circle is traced beyond which he cannot pass, but within wide
verge of that circle he is powerful and free; as it is with man, so with communities. The
nations of our time cannot prevent the conditions of men from becoming equal, but it depends
upon themselves whether the principle of equality is to lead them to servitude or freedom, to
knowledge or barbarism, to prosperity of war wretchedness. 2 Democracy, taken by itself, is a
just cause .popular sovereignty and equality of conditions are principles that can be abused,
corrupted, badly understood, and badly applied, but in the end they are legitimate principles,
good by themselves, and a society founded on them is superior everything else being equal,
to societies founded on opposite principles.

The people ,never having conceived the idea of a social condition different from their
own, and never expecting to become equal to their leaders, received benefits from them
without discussing their rights. Their ...submitted to their exactions ....as to the inevitable
visitations of the deity.... as the noble never suspected that anyone would attempt to deprive
him of the privileges which he believed to be legitimate, and as the serf looked upon his own
inferiority as a consequence of the immutable order of nature, it is easy to imagine that some
mutual exchange of good will took place between to classes so differently endowed by fate.
Inequality and wretchedness were then to be found in society, but the souls of neither rank of
men were degraded. The salutary state of society rested on certain beliefs or opinions about
fate, providence, and the legitimacy of the regime shared by commoners and nobles’
alike.p23.

2
Tocqueville and the Problem of Democracy Marvin Zetterbaum Stanford university Press Stanford, California
1967.12

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When an aristocracy governs, those who conduct affairs o f state are exempted by their
very station in society, from any want, Content with their lot power and renown are the only
objects for which they strive, placed for above the obscure crowd, they do not always clearly
perceive how the well being of the mass of the peop le redound to their own grandeur. They
are not, indeed, callous to the sufferings of the poor, but they cannot feel those miseries as
acutely as if they were themselves partakers of them. 3

Democratic laws generally tend to promote the welfare of the greatest possible
number , for they emanate from the majority of the citizens, who are subject to error, but who
cannot have an interest opposed to their own advantage. The laws of an aristocracy tend, on
the contrary, to concentrate wealth and power in the hands of the minority, because an
aristocracy, by its very nature, constitutes a minority. It may therefore be asserted, as a
general proposition, that the purpose of democracy in its legislation is more useful to
humanity than that of an aristocracy.

The standards of justice and injustice prescribed by the general conscience of

mankind are themselves are not primary, but derived from the wants, necessities, and
interests of man as a natural being. “Mankind is subject to general and prominent wants that
have created moral laws, to the neglect of which men have ever and in all place naturally
attached the notion of censure and shame. To infringe these laws to do ill, to do well was to
conform to them”. It were allowable to suppose that all the races o f mankind should be
commingled, and that all the nations of earth should ultimately come to have the same
interests and the same wants, undistinguished from each other by any characteristic
popularities, no conventional value whatever would then be attached to men’s actions, they
would all be regarded by all in the same light. The general necessities of mankind, revealed
by conscience to every man would become, standard. Thus, to put all meaning in a single
proposition, the dissimilarities and inequalities of men gave rise to the notion of honour, that
notion is weekend in proportion as these difference are obliterated and, with them it would
disappear.

The man who submits to violence is debased by his compliance but when he submits
to a right of authority that he acknowledge in a fellow creature, he rises in some measure
above the person who gives the command. There are no great men without virtue, and there
are no great nations – it may almost be added, there would be no society – without respect for

3
Ibid p.24

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rights, for what is a union of rational and intelligent beings who held together only by the
bond of force?

The history of the doctrine of natural rights does not seem to establish any necessary
connection between natural rights and democracy. Certainly Hobbs thought that recognition
of natural rights, and insistence on them, did not diminish either the legitimacy desirability of
absolute monarchy the more moderate Locke still did not argue that democracy was the only
legitimate inference to be drawn from the concept of natural rights. Nevertheless, it may be
shown that in the deepest sense democracy “as a certain privileged position within this
framework”.

Meaning and definition of de mocracy

In the words of Lord Acton “the great question is to discover not what governments
prescribe but what they ought to prescribe; for no prescription is valid against conscience of
mankind”4. This statement implies two ideas, that the conscience of mankind is the final
court of appeal against actions of government and that mankind in the name of freedom must
possess sufficient strength and courage to protest against the wrongs done by its government
and get the grievances redressed. Man’s reasonable willingness to obey the government when
its prescription is sound, his strength and courage of conviction to protest when it is unsound
constitute the essential qualities of good citizenship. How far modern states foster these
qualities of good citizenship among their subjects and what impediments lie in the way of
realising this idea are matters which form the theme of democracy and demand careful
investigation. Democracy comes from two Greek words, Demos and Kratio, which mean the
power of the people ; it is community in which ultimate power is vested in the masses, and
government is based on popular consent.

According to E. Barker Democracy is “a principle of the action of the human spirit the
principle that free spirits, in the area of social and political as well as of individual life,
should freely guide themselves to freely determined issues.”

Democracy is also a system of institution, operative in apolitical community which

enables this principle to be realised and serves as the means of its realisation.

4
Rajendra Avasthi, The Nature of Politics, Asia Publishing House, 1969. P 40

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Democracy assumes the worth of human personality , and that everyone is entitled
for a consideration in the state ; for individual personality can grow and develop only under a
system of guaranteed and secured conditions of good life, as civil, political, religious and
economic liberty. The term ‘people’

In a democratic society means all sane law-abiding adults, for “democracy is opposed
to the extinction of any class on grounds of wealth , of race, of sex.” Another assumption of
democracy is that it is a government by men of ordinary common sense. Accordingly,
democracy stands for the consciousness of the community; the life and the organisation of the
society as a whole are more important its constituent members, Individual lives are not to be
sacrificed for the sake of the society, but the conviction that the interest of the individual is
not apart from the interest of the state is the foundation of the society. As Aristotle says
democracy does not limit private existence, but private existence derive its being. Its welfare
and its rights from the state. Once when asked by someone to set up a democracy in Sparta,
Lycurgus is said to have replied; ‘Pray, do you first set up a democracy in your own house’.

The essence of democracy

Democracy is an effort to found society on ethics. it is a constant striving to make life

good to live, and to achieve a social scheme in which everyone is assured his due. It is also
faith in man and in his ultimate perfectibility. Two things are essential to democracy. Firstly
There must be an open road to talent, and every man shall have opportunity to rise to
positions of power and responsibility in proportion to his ability regardless of birth, caste or
social barriers. Secondly, those who are in positions of power and responsibility shall be
made sensitive to the needs, desires and the interests of those over whom they exercise
power. Carver in his” essays in social justice” says power, responsibility and authority are
entirely compatible with democracy, only power is made sensitive and responsible.

Liberty is the watchword of democracy and justice is its guide 5 . But justice demands
inequality as a condition of liberty, and as a means of regarding each according to his merits.
N.M.Butler in his true and false democracy says “jealousy of power honestly gained and
justly exercised, envy of attainment of possession are characteristics of the mob, not of the

5
Supra p. 30

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people of a democracy which is false, not of a democracy which is true. False democracy
shouts cries all men up to the height of their fullest capacity for service and achievement.
The two ideals are everlastingly at war. The future of the world is bound up with the hope of
a true democracy that builds itself on liberty.” Modern democracy consists in a attitude which
comprise three things

1. The acknowledgement of the manhood of each and every human individual

2. A respect for the generic essence of manhood comprising faculties of reason and
conscience,
3. An all compassing and compassionate love of individual men as seekers after truth.
The end of true democracy is perfected individualism, not in selfishness but in service, not in
isolation but in fraternity. Democracy so conceived is consistent with morality and develops
its fuller social implications that are founded on disinterested acknowledgement of all human
claims.

FOUNDATIONS OF DEMOCRACY

The foundations of democracy are 1.LIBERTY, 2. EQUALITY. Now we will discuss them
one by one.

LIBERTY

Individual citizens are not isolated atoms but integral parts of society, the life of
which has no real existence except as the life of its individual members. If the state were to
survive, it is necessary that all its citizens must not only be conscious of their existence but
also must be in a fit condition to function. Citizens, in order to be free to do things worth
doing and to think of things worth thinking, must live in a free atmosphere. Freedom in the
words of Laski is “the eager maintenance of that atmosphere in which men have the
opportunity to be there best selves”. Unless the obstacles that lie in the path of man are
removed, his energy cannot be liberated for the pursuit of higher ends. An individual is what
he is by virtue of the community. If the state were to take a generous vie w of its individual
members, the position of the individual is elevated and if lacks sympathy or is indifferent,
man will be no better than a best of burden. It is though the state that the moral ideal of man
receives concreteness in the form of laws and institutions, and the state promotes individual
morality only indirectly for the state can guarantee only rights and not righteousness, and can
only provide conditions of moral life and not morality itself. The end of all good government

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especially of democratic government , then, is to make men free by conferring on its people
civil, political, economic liberty, the right of person, of liberty, of property, of voting, of
standing as candidates for any office, of criticising the government and of serving the country
as best as they could 6 . Denial of these privileges would amount to the denial of human
personality, the negation of the democracy and all good things for which it stands 7 .

EQUALITY

Democracy is founded upon justice and justice involves liberty, and liberty denies
economic equality , because equality of ability, of efficiency and even of physical force are
unknown among men. Butler says, “to secure an equality which is other than the political
equality incident to liberty, the more efficient must be shackled that they may not outran the
less efficient, for there is no known device by which the less efficient can be spurred on to
equal the accomplishment of the more efficient”. But the realisation of approximate
economic equality and minimum comforts of good life is a condition precedent to the
realisation of liberty8 .
Laski in his Grammar of Politics says, “equality involves up to the margin of sufficiency an
identity of response to primary needs”9 .
Equality implies the elimination of ignorance, illiteracy, intemperance and other
artificial, socially crated loopholes of life which are great impediments in the way of freedom
and therefore of development of personality. Liberty and Equality are not used in the sense of
being ends in themselves but as means for the realisation of a free life, a life that is possible
only under social control and wisely directed state action. Liberty and Equality so understood
can exist only within the framework of law and any action that is likely to be taken by a state
in removing the evils of ignorance of poverty, if intemperance, and other disabilities of life,
the privileges of a few, their monopolistic combinations and such other means of
exploitation, therefore, should not be construed as an encroachment on individual liberty but
an attempt to liberate human energy and to help it to reach its appointed goal. Anglo-Saxon
countries regard liberty as more precious than equality, will socialistic states would foster

6
https://www.referenc e.com
7
https://mises.org>library>democracy and liberty
8
Gerald Cohen, “on the currency of Egalitarian Justice” Ethics July (1989):pp906to 944.
9
https://ww.psa.ac.uk>files>papers

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equality even at the sacrifice of liberty. But the fact that England is tending towards socialism
and equality 10 .
Democracy is something more than freedom of thought, of speec h and of worship.
The absence of absolute government or of the tyranny of a hereditary caste, does not insure
democracy man hood suffrage, the right of participation in government for all, irrespective of
race, creed or birth, the substitution of democratic forms for monarchical institutions in and
of themselves do not constitute democracy. Democracy demands a new method of
representation for labour in industry, and a workable basis for cooperative effort in solving
the difference between capital and labour. It involves a new social ethics which springs from
moral life based on our common experiences engendered by fellow –feeling and the
liberation of a greater diversity of personal capacities. Democracy is suited only to a mobile
society which is full of channels for the distribution of a change occurring anywhere. A
society highly stratified into castes or separate classes cannot provide for equality of
intellectual opportunity and for personal initiative and adaptability and therefore caste may
regarded as a fatal to democracy. since democracy repudiates the principle of external
authority it must find a substitute in voluntary disposition and interest; these can be created
only by education; thoroughly instructed and competent public opinion on political a ffairs
can be attained only by public education. Democracy is not a social order , it is an endurable
social order, within which education is going on. It is neither a despotism nor an anarchy. It is
an experiment in human living, a striving after moral spiritual life. the moral consideration is
supreme in a democracy which is the only social order that is admissible because it is the
only one consistent with justice.

INSTITUTIONS NECESSARY FOR A DEMOCRATIC GOVERNMENT

The growth and expansion of democracy is the story of the development of human
liberty. Democracy as the government of the people manifested itself in two great moments,
one in the heart of the puritan movement in England, the other in the puritan exodus to
America. Democracy set feudal France free, it made religion free. It established
parliamentary institutions. The declaration of rights laid the foundations of American liberty.
The principles of the American revolution are the following. “all men are by nature equally
free and they have inherent rights to the enjoyment of life and liberty with the means of
acquiring and possessing property, and pursuing obtaining happiness and safety. All power is

10
Laski today.pdf-The Political studies,pdf

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vested in and consequently derived from the people. Government is and ought to be,
instituted for the common benefit and security of the people, nation, or community, and
whenever any government shall be found inadequate or contrary to these purposes, a majority
of the community hath an indubitable, inalienable and indefeasible right to reform, alter or
abolish it, in such a manner as shall Rights of Man are liberty, property, security and
resistance or oppression.”11

DEMOCRATIC GOVERNMENT IS REPRESENTATIVE GOVERNMENT.

Democracy visualises a free and functional society and the democratic ideal differs
from the totalitarian ideal in viewing law more as an appeal than as a command. Law is
feared because it is severe and is loved because it is just. Political liberty is consistent with
majority rule not because the majority represents a large number or is supposed to be
sacrosanct or to have wisdom but because a majority is simply the largest number willing to
work together for a particular time 12 . Democratic government does not intend to and cannot
possibly allow all political affairs to be tackled by ordinary citizens, for democracy is not a
rule by passion but rule by reason, and its working depends upon the knowledge and
experience of the elite, the expert, the lawyer and the tec hnician. Without competent leaders
democracy cannot hope to function. the leaders are not mere signboards, but doctors who feel
the public pulse, and use their power for the service of the community. Apart from an
intelligent understanding of the wishes of the community and interpreting them correctly they
are required to foster in the people the sense of common interest, and inspire and guide the
people to the realisation of a more elevated and honourable life 13 .As Barker observes
democracy is not a method of government by counting heads; it is a method of government
by laying heads together in a common debate in which all share to attain a result which as
many as possible are agreed in accepting. it is a government by discussion.

LIMITATION UNDER WHICH DEMOCRACY WORKS

Modern political democracy is in peril for this arises from a contrast between its preaching
and practice, as an ideal and as a reality. The great hazards to which democracy is expose are
three:

11
https://en.m.wikipedia.org>wiki>democracy

12
Prof. M.V. KRISHNA RAO, organized democracy, publisher H. Venkataramaiah, year 1952. P10
13
Ibid, p11

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(a) The splendour of its vision. The vision is profoundly human, falling within the
limits of human nature and experience, but in asking men to do their best and
emphasising possibilities of human nature, delicacies of feeling and depths of
wisdom, it becomes a standard rather than a code of behaviour.
(b) It proclaims equality and encourages men to take full advantage of their natural
inequalities. Democracy is proposed as a form of social organisation but it
conflicts with the basic conditions of social organisation, for example social
organisation requires leadership and control in both economic and political fields
but democracy encourages men to resist authority, social organisation requires
restraint but democracy finds difficulty in drawing a line between rights of
freedom and the abuses of license.
(c) Democracy exalts the role of the individual but it preaches tolerance. These are
the great paradoxes of democracy. Other great hazards of democracy are
vulnerability to external force, and vulnerability to heresy or the cults of the false
gods: materialism, anti- intellectualism and social relativism. As democracy in
practice has come to mean predominance of the executive, parties and
administrative discretion, sufficient safeguards have not been developed against
the abuse of power, parliamentary criticism is less impressive and parliaments in
democratic states are become less parliamentary in spirit 14 .

REMEDIES

All these defects of democracy make a strong case for democracy. It must be said that
democracy is not democratic enough and there must be adequate opportunities for all to make
democracy real and it is aspect that has become all important. Opportunities for all in a
democratic society means basic equality, access to knowledge, a minimum wage, fair
working conditions and adequate leisure, just distribution of wealth amo ng its members, and
the elimination of disparities that exist between the haves and the have- nots. The theme of
democracy is the equal claim of all on common good a nd the test of democracy is its ability
to make good this claim. Political liberty and equality which are the foundations of
democracy become a myth if they are not accompanied by economic liberty and equality. The
secret of democracy is more psychological than political, more human than mechanical. The
most carefully prepared constitution may not protect democracy from ruin as in the case of
Athens in her last days while a clumsily constructed constitution can be made very good use
14
Supra M. V. KRISHNARAO, p12.

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of as in the case U.S.A. What is required for the working of a democratic constitution is the
democratic spirit and temper and not mere democratic framework of law and institutions.
Democracy as E.F.M. Durb points out, “is essentially a matter of method of living. It is a
civilised way of taking political action. It is continuous search for agreement through
discussion, tolerance for the opinion of others, compromise and respect for the feelings and
opinions of the minority groups”. C.K. Allen 15 is of opinion that brains and virtues in
themselves are not sufficient for good government but a faculty for compromise which may
not always occur with rigid principle or perfect logic; a blend of both classes ordinary and
extra-ordinary, is necessary for democracy is opposed to aggression and intolerance 16 . Much
of the Christian 20th century, and especially its later half, will undoubtedly be recalled as an
age of human rights. No preceding century in human history has been privileged to witness
such a profusion of human rights enunciations on a global scale. Never before have the
languages human rights sought to supplant other ethical languages. No previous century has
witnessed the proliferation of endless normativity of human rights standards has a core aspect
of the politics of inter-governmental desire. Never before has these discourse been so worried
and diverse that it becomes necessary to regularly publish and update, through the unique the
discursive instrumentality of the United Nations system 17 . The secretary general of the United
Nations was perhaps; write to observe that human rights constitute a ‘common language of
humanity’ 18 . The notion that human rights may have such radically contingent futures may
seem outrageous to many of us deeply committed to the alleviation of human misery and
social suffering. The very term human rights, is indeed problematic in rights-talk, the
expression often masks the attempts to reduce the plenitude of its meanings to produce a false
totality. One such endeavour locates the unity of all human rights to some designated totality
of sentiment such as human ‘dignity’, ‘well-being’, and ‘flourishing’.

What are human rights?

Human rights are rights inherent to all human beings, whatever our nationality, place
of residence, sex, national or ethnic origin, colour, religion, language or any other status. We

15
Ency, Dic. Of Public Adminst.(2 Vol) p.397.
16
Supra M.V.KRISHNARAO, P.16

17
The united nations human rights; A compilation of International Instruments (1997)
18
Boutros Boutros-Ghali, The Common Language of humanity of united nations; world conference on Human
Rights, the Vienna Declaration and program of Action (1993).

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are all equally entitled to our human rights without discrimination. These rights are all
interrelated, interdependent and indivisible. Universal human rights are often expressed and
guaranteed by law, in the forms of treaties, customary international law, general principles
and other sources of international law. International human rights law lays down publication
of governments to act in certain ways or to refrain from certain acts, in order to promote and
protect human rights and fundamental freedoms of individuals or groups. Human rights are
universal and inalienable. The principle of universality of human rights is the cornerstone of
international human rights law. This principles as first emphasized in the universal
declaration on Human Rights in 1948, has been reiterated in numerous international human
rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on
human rights noted that it is the duty of status to promote and protect all human rights and
fundamental freedoms, regardless of their political, economic and c ultural systems. All states
have ratified at least one, and eighty percent of status have ratified four or more, of the core
human rights treaties, reflecting consent of status which creates legal obligations for them and
giving concrete expression to universality. Some fundamental human rights norms enjoy
universal protection by customary international law across all boundaries and civilizations.
Human rights are inalienable. They should not be taken away, except in specific situations
and according to due process.
All human rights are independent and indivisible. Whether they are civil and political rights
such as the right to life, equality before the law and freedom of expression, economic, social
and cultural rights, such as the rights to work, social security and education, or collective
rights, such as the rights to development and self –determination are indivisible interrelated
and interdependent. The improvement of one right facilitates advancement of the others.
Likewise, the deprivation of one right adversely affects the others. Human rights are equal
and non- discriminatory. Non- discrimination is a cross cutting principle in international
human rights law. The principle is present in all the major human rights treaties and provides
the central theme of some of international human rights conventions such as the international
convention on the elimination of All Forms of Racial Discrimination and the convention on
the elimination of All Forms of discrimination against women. The principle applies to
everyone in relation to all human rights and freedoms and it prohibits discrimination on the
basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle
of non- discrimination is complemented by the principle of equality, as stated in Article 1 of
the Universal Declaration of Human Rights. “All human beings are born free and equal in

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dignity and rights 19 ”.Human rights are both rights and obligations. Human rights entail both
rights and obligations. States assume obligations and duties under international law to respect
, to protect and to fulfil human rights. The obligation to respect means that states must refrain
from interfering with or curtailing the enjoyment of human rights. The obligation to protect
requires states to protect individuals and groups against human rights abuses the obligation to
fulfil means that states must take positive action to facilitate the enjoyment of basic human
rights at the individual level.

Definition

Although they were defined first by the Scottish philosopher John Locke(1632-1704)
as absolute moral claims or entitlements to life, liberty, and property, the best-known
expression of human rights is in the Virginia Declaration of Rights in 1776 which proclaims
that “All men are by nature equally free and independent and have certain inherent rights, of
which, when they enter a state of society, they cannot, by any compact, deprive or divest their
posterity”. Called also Fundamental rights.The fundamental rights that humans have by the
fact of being human, and that are neither created nor can be abrogated by any government.
Supported by several international conventions and treaties, these include cultural, economic,
and political rights, such as right to life, liberty, education and equality before law, and right
of association, belief, free speech, information, religion, moment, standard of concern for
people and form the basis of any modern national constitutions.

The nature of Human Rights

The preamble to the Universal Declaration o f Human Rights adopted on 10 December

1948 emphasises that recognition of the inherent dignity and of the equal and inalienable
rights of all members of human family is the foundation of freedom, justice and peace in the
world. While there wide –spread acceptance of the importance of human rights in the
international structure, there is considerable confusion as to their precise nature and role in
international law 20 . The meaning of ‘right’ is itself controversial and the subject of intense
jurisprudential debate 21 . Some ‘Rights’, are intended as immediately enforceable binding
commitments others merely as specifying a possible future pattern of behaviour. The

19
www. Ohchr.org>OHCHR>English
20
M. Moskowitz, the policies and dynamics of Human Rights,London, 1968,pp.98 -99
21
W.N.Hohfeld, ‘FundamentalLegal Conceptions as Applied to Judicial Reasoning,’ 23 Yale Law Journal, 1913,
p.16

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comparison of Article 2 of the International covenant on civil and political rights 1966 with
Article 2 of the International Covenant 22 on economic social and cultural rights 1966. The
Article makes responsible the states which are parties to the covenant to take steps to
safeguard the human rights 23 . The concept of human rights is closely allied with ethics and
morality. Those rights that reflect the values of a community will be those with the most
chance of successful implementation. Of course, there is no necessary connection in
particular instances, so that not all community values will be enshrined in Law, nor will all
legal rights reflect moral concerns, since many operate on a technical level as entitlements
under specific conditions. However, this relation does add to the uncertainty surrounding the
definition of the nature and scope of rights.
Positive rights may be taken to include those rights enshrined within a legal system
whether or not reflective of moral considerations whereas a moral right does not necessarily
exist as enforceable by law. One may easily discover positive rights. Deducing or inferring
moral rights is another matter entirely and will depend upon the perception of the person
seeking the existence of a particular right 24 . Rights may be seen as emanating from whereas
sources, whether religious or the nature of man or the nature of society. The natural law view
, as expressed in the traditional formulations of that approach or by virtue of the natural rights
moment, is that certain rights exist as a result of a higher law than positive or man-made law.
Such a higher law constitutes a universal and absolute set of principles governing all human
beings in time and space.The natural rights approach of the seventeenth century, associated
primarily with John Locke, founded the existence of such inalienable rights as the rights to
life, liberty and property upon a social contract marking the end of the difficult conditions of
the state of nature. This theory enabled recourse to be had to a superior type of law and thus
was able to provide a powerful method of restraining arbitrary power 25 .

Ideological approaches to Human Rights

The view adopted by the western world with human rights law in general term has
tended to emphasise the basic civil and political rights of individuals, that is to say those
rights that take the form of claims limiting the power of government over the governed. Such

22
Malcolm N.Shaw, International Law, Fourth Editi on, A Grotius Publication, Cambridge University
Press.1997.p.196
2323 th
Dr. V. Nirmala,Law Relating to Human Rights , Asia Law House, Hyderabad, 15 edition, reprint,2013.
P.35&p.58.
24
. M.Cranston, ‘what are human rights?’in Lagner and Rubin,the human rights reader,pp.17,19
25
J.Finnis, Natural Law and Natural Rights, 1980 and Mc Dougal et al.,Human Rights pp.68 -71.

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rights would include due process, freedom of expression assembly and religion, and political
participation in the process of government. The consent of the governed is seen as crucial in
this process. Tunkin wrote that the content of the princip le of respect for human rights in
International Law may be expressed in three propositions 26 : All states have a duty to respect
the fundamental rights and freedoms of all persons within their territories. States have a duty
not to permit discrimination by reason of sex, race, religion or language and States have a
duty to promote universal respect for human rights and to co-operate with each other to
achieve this objective. Human rights were not directly regulated by International Law and
individuals were not subjects of International Law. Indeed human rights were implemented
by the state and matters basically and crucially within the domestic affairs of state. As Tunkin
emphasised, ‘conventions on human rights do not grant rights directly to individuals’ 27 .
Having stressed the central function of the state the point was also made that the context of
the international human rights obligations themselves was defined solely by the state in the
light of the socio-economic advancement of that state. Accordingly, the nature and context of
those rights would vary from state to state, depending upon the social system of the state in
question. The general approach of the third world states has combined elements of both the
previous perceptions. Concern with the equality and sovereignty of states, together with a
recognition of the importance of social and economic rights has characterised the third world
view, such countries, in fact constituting a wide range of nations with differing interests and
needs, and that different stages of development, have been much influenced by
decolonisation and the struggle to obtain it and by the phenomenon of apartheid in sout h
Africa. In addition, economic problems have played a large role in focusing their attention
upon general developmental issues 28 .

The developme nt of international covenants on human rights

The growth and evolution of human rights and international law had achieved a
remarkable progress since the year 1945. The history of human rights can be traced from
mosaic code, philosophy of ancient Greece Magna Carta etc. However the need and
necessity for maintaining certain standards in this regard was seriously felt during the end of
the 2nd world war, and as a progress this line of thought several charters, treaties etc. Came to

26
G. Tunkin, Theory of International Law, London ,1974,p.81
27
Tunkin, Theory, p .83.
28
R. Emerson, ‘the fate of Human Rights in the third world’, 27 world politics,1975, p.201.

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existence 29 . The United Nations Charter articles 55 and 56 caste a legal obligation on UNO to
promote respect for and observance of human rights. Several charters, treaties, etc., came into
existence for effective enforcement of human rights like
1.Universal Declaration of Human Rights 1948.
2.European Convention on Human Rights 1950.
3.the international covenant on civil and political rights 1966
4.the international covenant on economic ,social and cultural rights in 1966.

Universal declaration of human rights as a common standard of achievement for all

peoples and all nations, to the end that every individual and every orga n of society, keeping
this declaration constantly in mind, shall strive by teaching and education to promote respect
for these rights and freedoms and by progressive measures, national and international, to
square their universal and effective recognition and observance, both among the peoples of
member states themselves and among the peoples of territories under their jurisdiction 30 .

Human Rights in India

Human rights in India is an issue complicated by the country’s large size and
population, widespread poverty, lack of proper education and its diverse culture even though
being the worlds largest sovereign, socialist, secular, domestic republic. The constitution of
India provides for fundamental rights, which include freedom of religion. Constitutional
provisions also provide for freedom of speech, as well as separation of executive and
judiciary and freedom of moment within the country and abroad. The country also has an
independent judiciary and well as bodies to look into issues of human rights. Part 3rd of the
constitution contains a bill of fundamental rights enforceable by the supreme court and the
high courts. it also provides for reservations for previously disadvantaged sections in
education, employment and political representation. In support for all these the national
human rights commission has been adopted in 1993.

NATIONAL HUMAN RIGHTS COMMISSION

The national human rights commission (NHRC) of India is an autonomous public body
constituted on 12th October 1993 under the protection of human rights ordinance of 28 th
September 1993. It was given a statutory basis by the protection of Human Rights Act. 1993.

29
Justice P. N. Bhagwati “court constitution and human rights” by mool chand Sharma.
30
Dr. V. Nirmala, supra, p30.

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The NHRC responsible for the protection and promotion of human rights, defined by the Act
as “rights relating to life, liberty, equality and dignity of the individual guaranteed by the
constitution or embodied in the International covenants 31 ”.

“Human Rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in the international covenants and
enforceable by courts in India.The Protection of Human Rights Act, 1993 as amended by the
Protection of Human Rights (amendment) Act, 2006. It contains the constitution of NHRC,
appointment of chairperson and other members, the term, the functions , functions and
powers of commission, powers relating to inquiries of human rights violation, constitution of
human rights courts are the important among other related provisions 32 .

Purpose of National Human Rights Commission

The purpose of setting up the commission is to strengthen the machinery for more
effective enforcement of fundamental rights of the people. The statement of objects and
reasons appended to the Bill which later became the Ac t made clear the purpose underlying
the proposed enactment. While nothing that India was a party to the international covenant on
civil and political rights and the International covenant on economic social and cultural
rights, both of which were adopted by the United Nations General Assembly on 16th
December 1966, and that the rights embodied in those covenants stood substantially protected
the constitution of India, the statement observed that there had been “growing concern in the
country abroad about issue relating to human rights.”. Having regard to this, and to the
changing social realities and emerging trends in the nature of crime and violence, it has been
considered essential to review existing laws and procedures and the system of administration
with a view to bringing about greater efficiency and transparency 33 .

The Role of Judiciary in safeguarding human rights

In section 12(a), the expression human rights has been used. Section 2(b) of the Act
defines ‘Human Rights’ to mean “the rights relating to life liberty, equality and dignity of the

31
V.P.Srivastav, Human Rights Training its Dimension and approach, vol. III Indian Publishers Distributors,
2003. P.1427
3232 th
M.P.Jain, Indian Constitutional Law, vol.2 6 edition Lexis Nexis Butterworths Wadhwa Nagpur.2010.
P.1943
33
M.P.Jain, supra p.1944.

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individual guaranteed by the constitution, embodied in the international conventions and

enforceable by courts in India”. Thus the rights guaranteed by International Convent ions to
which has acceded have been included within the term “human rights”.
Commenting on the above definition, the supreme court has observed in Madhu Kishwar v.
State of Bihar 34 .
“There by the principles embodied in CEDAW and the concomitant right to development
become integral parts of the Indian Constitution and the human rights Act and became
enforceable S.12 of the protection of human rights Act charges the commission with duty for
proper implementation as well as prevention of violation of the human rights and
fundamental freedoms”. The supreme court has given a much wider dimension to the
functioning of the NHRC through its ruling in Paramjit Kaur v. State of Punjab, 35 The court
has held that under Article 32, it can refer any matter to the commis sion for inquiry and the
commission acts sui generis under the remit of the supreme court and, in such a case the
commission is not bound by the shackles and limitations of the NHRC Act. The court has
described the commission as ‘unique expert body in itself ‘. Fundamental Rights guaranteed
by the constitution represent the basic human rights possessed by every human being. The
supreme court ‘s jurisdiction under Article 32 of the Indian constitution “cannot be curtailed
by any statutory limitation” including those contained in the various provisions NHRC Act.
In NHRC v. Arunachal Pradesh 36 . here the commission assumes a new role-that of writ
petitioner before the supreme court. A large number of Chakmas had crossed over from
Bangladesh and were residing in Arunachal Pradesh for some time. The local students body
resented this and threatened to evict the chakmas by force. The commission came to the
conclusion that the local officers were siding with the students and there was imminent threat
to the lives of the chakmas. The commission therefore decided to file a writ petition in the
supreme court under Article 32 seeking enforcement of the rights of chakmas under Article
21 of the constitution. 37

34
AIR 1996 SC 1864 (1996) 5 SCC 125.
35
AIR 1999 SC 340. (1999) 2 SCC 131.
36
AIR 1996 SC 1234.(1996) 1 SCC 742.
37
M.P.Jain, supra,ch.XXVI. p.1950

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CONCLUSION

AS I WIOULD NOT BE SLAVE,

SO I WOULD NOT BE AMASTER.
THIS EXPRESSES
MY IDEA OF
DEMOCRACY.
Abraham Lincoln.

As Abraham Lincoln says democracy as “Government of the people, by the

people, for the people. In democracy the supreme power is vested in the people and
exercised directly by them or by their elected agents under a free electoral system.
Thus human rights are those minimal rights that individuals need to have against the
state or other public authority by with the prescription of defined territory , stab le
government, immobile population etc., along with the constitution to prescribe the
rights of the individuals with much glory. One can come to the conclusion that it is
not the state that confers the basic rights of the human beings but naturally by birt h
itself the human beings will inherit minimum natural rights. Here the question arises
then what is the role of the government as state it is the duty of the welfare state to
protect the rights of individuals from cradle to grave. Mere prescription is not
sufficient today but safeguarding the same against violation is necessary in a country
of democracy thus the democracy and human rights has to go in hand by hand without
disturbing each other for smooth going of any democratic country like India.

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HISTORICAL EVOLUTION OF WRIT OF HABEAS CORPUS IN INDIA

**SUJATHA .J.K1 & PROF.DR.C.BASAVARAJU2

INTRODUCTION:

The writ of habeas corpus is one of the most ancient known to the Common Law of
England. It is a writ of immemorial antiquity and the first threads of its origin are woven deeply
within the seamless web of history. During the 12 and 13 centuries the writ o f habeas corpus was
used as a command by the Court to someone to bring before itself the body of a person whose
presence was required for the purpose of a judicial proceedings. Pursuant to the writ, parties
were brought before the Court, whether such parties were free or in detention. A writ by which a
court could bring persons before it can be used for many different purposes and the genius of the
English people found a way of using it for a different end. The writ of habeas corpus cum causa
made its appearance in the early years of the 14 th century. The person who had the custody of a
prisoner was required by this writ to produce him before the Court together with the grounds for
detention.
The writ thus became a means of testing the legality of detention and in this form it may
be regarded as the immediate ancestor of the modern writ of habeas corpus. It is a prerogative
process for securing the liberty of the subject by affording an effective means of immediate
release from unlawful or unjustifiable detention whether in prison or in private custody. It is a
prerogative writ by which the Queen has a right to inquire into the causes for which any of her
subject are deprived of their liberty. If there is no legal justification for the detention, the party is
ordered to be released. Release on habeas corpus is not an acquittal, nor may the writ be used as
a means of appeal.

1
Smt. Sujatha.J.K., Assistant Professor-Research Scholar, University of Mysore School of Law.
2
Prof. C.Basavaraju. Chairman, Director, Dean Faculty of Law, Department of Studies in Law, University of Mysore, Manasagangotri, Mysore.

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Origin of Habeas Corpus in India:

The writ of habeas corpus is one of the most important writs in which the liberty of the
individual can be protected most effectively when compared to any other writ. This is because
the writ of Habeas Corpus deals with human life, which is enshrined in Article 21 of the
Constitution of India. This writ is required to be heard and disposed of expeditiously as early as
possible because a wrongful act of arrest or detention of a person is a wrong which is continues
till released and remedied.

Article 21of the Constitution declares that no person shall be deprived of life and liberty
except in accordance with the procedure established by law. So the court has to decide whether
the authority has followed the procedure laid down by the law. If not followed then the court will
issue rule nisi calling upon the appropriate party to justify the arrest or detention.

In India the history of habeas corpus can be d ivided in to two periods ;

1. Writ of habeas corpus in Pre-constitutional period,

2. Writ of habeas corpus in Post-constitutional period.

1. Writ of Habeas Corpus in Pre-constitutional period:-

It was not possible to trace the extraordinary remedies like writ of habeas corpus in the ancient
and medieval period of Indian history. The basic spirit and ethos of Indian culture and notions of
‘Raja Dharma’ had held personal liberty of individual in the high esteem. The remedy accorded
to the victims of wrongful detention was both punitive and remedial. It is true that, it is with the
advent of british regime that this anglo-saxon remedy was established in the Indian soil. The
advent of British rule in India brought with it the importance of the machinery of English
administration of justice. 3 The vitol role played by this high prerogative writs in England in
securing the liberty of the subject and in protecting the rights and property was well k nown to the
framers of our constitution. In India it is of statutory origin and was first conferred on the
Supreme Court of Calcutta in 1774. The Writ was therefore imported to India in a finished form
and the common law and statute that governed the issue of the writ in England was followed in

3
V.G. Ramachandran , Fundamental Rights and Constitutional Remedies, Eastern co. vol II, Second Edn P.697

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India with alteration necessitated by the special circumstances of the country. The writ in India
has therefore to be defined as of statutory origin but otherwise in terms of English Law. It is also
defined as a statutory remedy by which the judges of superior courts empowered to direct the
production of detained individuals before a judge or court to be dealt with according to law.4
Clause 4 of the Charter of the Supreme Court gave unrestricted jurisdiction to the court over
persons within its jurisdiction. The power so conferred on the judges of the Supreme Court
individual was similar to those conferred on the jud ges of the court of King’s Bench in England.
Clause 21 of the Charter conferred power to various kinds of writs to keep within bounds the
subordinate tribunals such as Justices of the Court Requests and Courts of Quarters Sessions at
Calcutta. The extent of jurisdiction came up for consideration in several cases. Prior to the
constitution the old Supreme Court at Madras possessed the power of issuing these writs within
the limits of its jurisdiction and outside that jurisdiction only as regards Europeon British
subjects. 5 By the Charters of the 3 Supreme Court created in pursuance of the Regulating Act of
1773, these Supreme Court were vested with the powers to issue the prerogative writs. When the
Supreme Court was established in Calcutta in pursuance of the Regulating Act 1773 (sec 13-22)
by a Charter of 1774 clause 4 of the charter gave to each of the Judges power to issue the writ of
Habeas Corpus. 6 High Courts had jurisdiction to issue a writ of Habeas Corpus into the
mofussils outside the original jurisdiction as the Supreme Court had powers to issue writs of
Habeas Corpus in the same manner as they were issued in England and the same power was
commanded in the High Courts under their respective charters. 7 Later the Criminal Procedure
Code was enacted as Act of X of 1872. Sec 81 of this Act conferred the right to issue orders in
the nature of Habeas Corpus in the case of European British subject both within and outside the
original jurisdiction of the presidency High Courts and its judges to issue the writ of Habeas
Corpus beyond the Presidency towns was taken away. The year 1919 constitutes as memorable
period in the history of the struggle for freedom of India. The 1919 Act was enacted which did
not satisfy the aspiration of the people. Repressive measures were taken up by the british
government such as the passing of the Rowlat Act. From the establishment of British Justice in
India till 1923 the constitutional remedy of Habeas Corpus was considered a birt h right only o

4
Markose, A.T. “Judicial control of Administrative Action, Madras Law Journal office, Madras. P111-114.
5
D.D. Basu Commentary on the Constitution of India. Calcutta. S.C. Sarkar and sons pvt ltd, volii 5 th edn.
6
Markose, A.T. “Judicial control of Administrative Action, Madras Law J ournal office, Madras. P111-114.
7
Agerwal, Fundamental Rights and Remedies. Vol II, Ist Edn, 1954, Metropolitan Book co. ltd. P.719.

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European British subjects. After 1923 the state of affairs continued without any change until the
new Republican constitution came into operation which by Article 32 and 226 gave the power to
issue writ of Habeas Corpus to the Supreme Court and all the High Courts within the limits of
the territorial jurisdiction of each courts.

2.Writ of Habeas Corpus in India in the post-constitution period:-

Article 32 and 226 of the Constitution of India provides for redressal of grievances by the
Supreme Court and the High Courts, through the system of writs. Article 32 guarantees a right to
move the Supreme Court for the enforcement of fundamental rights enshrined in the
Constitution. The Supreme Court for this purpose is empowered to issue writs including the writ
in the nature of Habeas Corpus. Further Article 226 also empowers the High Courts not
withstanding anything in Article 32, throughout the territories in relation to which they exercised
jurisdiction, to issue writs including writ of Habeas Corpus. However the high courts were also
empowered to issue writs for any other purpose, so as to place all the High Courts, in the same
position, as the court of the King”s Bench in England. The Constitution of India clearly provides
that no person shall be deprived of his life and personal liberty except according to the procedure
established by Law. To move the Supreme Court in case of violation of fundamental rights is a
right in itself. Any statute which takes away the privilege of applying for Habeas Corpus or any
writ for that matter, then that statute would be void. The Supreme Court has interpreted this writ
to safeguard the liberty of persons under all situations. The technical aspect of law has been
subsided by the spirit of law. Today, it is not just production of the body that is the concern of
Habeas Corpus. This writ ensures life and liberty of an individual. The broadening scope of the
Writ of Habeas Corpus can be known with the help of following decided land mark cases;

KANU SANYAL V. DISTRICT MAGISTRATE 8

The petitioner was an active member of a naxalite group who was remanded in the
central jail of Darjeeling for having committed certain offences. A charge sheet was filed againt
him and some others. The offences committed by him were such as could only be tried by a
sessions court where the prisoner be brought before a special magistrate in Vishakhapatnam. For

8
. AIR 1973 SCR 621.

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this purpose a special warrant was issued by the special magistrate and until the proceedings
were complete, the petitioner was remanded to a prison in Vishakhapatnam itself. The petitioner
thus filed suit stating that his detention in Darjeeling was illegal and violative of Art. 22. He
claimed that the magistrate in Darjeeling had no right to try his case as he did not have the
adequate jurisdiction. He also claimed that the magistrate in Darjeeling should have not complied
with the special order as per the Section 6 of Prisoner”s (Attendance in Court) Act, 1955 which
clearly states that an officer can abstain from execution of an order if the accused is under trial or
there has only been conducted a preliminary investigation. In this decision it was stated that, the
writ of habeas corpus cannot be issued when it is ascertained that the detention of the person so
detained is not illegal and neither it is without jurisdiction. It would be completely out of its
purpose in this case as there exists no right to claim the writ when the detention is necessary and
purposeful. Also the date that is to be taken into account in case of a writ petition, is the date the
petition was filed on. It was decided because the earliest date had to be sought and that
automatically would be the date on which the writ petition was filed. The court can hear the Rule
Nisi even in the absence of the detained person. Rule Nisi is to ‘ show cause’ which means an
order of a court is final until the party to whom it applies shows reason otherwise. Once the rule
nisi is issued by the court the body of the detained has to be produced before the court. Presence
before the court is subsidiary to the primary objective of Habeas Corpus and that is to ensure an
illegally detained man’s liberty. It is referred to as the great writ solely because of the reason that
it limits the despotic powers of the state and guarantees liberty to a nation’s citizens. 9

SUNIL BATRA V. DELHI ADMINISTRATION 10

This case is related to the rights of a prisoner. It highlights the horrendous conditions that
exist in Indian prisons. Sunil Batra was a prisoner of Tihar Jail in Delhi. There he got the
knowledge that one of his fellow prisoners, Prem Chand was being treated barbarically by the
prison authorities and was being brutally tortured for money. The warden used to torture him
with batons. On one such incident, Prem Chand bled profusely and had to be hospitalized. To do
something regarding this grotesque treatment, Sunil Batra wrote a letter to the judge wherein he
addressed this cause. This letter was then transformed into a petition under Habeas Corpus. Here,

9
V.G. Ramachandran, Law of writs, 368 ( 6 th edn, 2006).
10
.AIR 1980 SC. 1579.

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the learned Justice Krishna Iyer stated that, human rights do not end for a prisoner. A prisoner is
as much a citizen of India as is anybody else and had to be granted his basic rights as a person. If
a prisoner, as per him is not regarded as a person then there is no point of having a democracy or
a constitution at all. Again he state that “ the finest hour of justice comes when court and counsel
constructively collaborate to fashion in the case a relief to the prisoner and fathom deeper to cure
the institutional pathology which breeds wrong and defies right”. Further he said that the it is
needed to broaden the scope of habeas corpus was felt so that even the ones behind bars could
benefit from it and their rights can be safeguarded. This case opened up new horizons of
application of the writ. There existed no one particular straight jacket way to invoke a writ.

HABEAS CORPUS WAS STRUCK DOWN; ADM JABALPUR V. SHIVAKANTH SHUKLA11

In India 28th April was regarded as black day in the history of Habeas Corpus, because a
presidential order was passed stating that nobody had the right to move any court in a writ
petition for enforcement of Fundamental Rights. The High Courts had decided to entertain the
writ petitions despite government order. The Supreme Court though, thought otherwise. Five
Hon’ble judges asked the High Court not to consider any writ petition filed during the
emergency periods. 12 Justice Khanna was the only one with the dissenting opinion. Therein he
said that, “ as observed by Chief Justice Huges, judges are not there simply to decide cases, but
to decide them as they should be decided, and while it may be regrettable that they cannot always
agree, it is better that their independence should be maintained and recognized than that
unanimiaty should be secured through its sacrifice. A dissent in a Court of last resort, to use his
words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a
later decision may possible correct the error into which the dissenting Judge believes the court to
have been betrayed. Where does judicial discretion go in case of a presidential order? Is the
emergency period so crucial or despotic so as to give ultimate powers to the State, so much so
that the whole point of granting liberty in the first place to all individuals is taken away? Due to
this judgment 44th amendment was brought into the constitution in the year 1978 wherein it was
made that Fundamental Rights could not be suspended in case of a National Emergency.
Ultimately the wrong was made right though the scar remains.

11
AIR 1975 SC 1207.
12
Jos Peter D;Souza, when the SC struck down the habeas corpus, (june,2001), http://indiacode, nic.in/coiweb/amend/amend44.htm.

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CONCLUSION:

The habeas corpus has a much greater meaning than its impact on an individual basis. It remains
the single most potent weapon in vindicating personal liberty. Habeas Corpus represents the
acknowledgement that the executive is subject to the rule of law. This writ act as canary in the
mine for the erosion of government legitimacy. Thus it can be said that writ of habeas corpus
has made a great contribution to the cause of the liberty by providing effective remedy.

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THE WORKING OF NGO AND ITS IMPACT ON THE SOCIETY

*KAVEYA.P1

Indian economy is basically a welfare oriented economy. Government plays an important role
in upholding the values of the society. The role played by NGO’S is not small in this
perspective. They mainly work on the basis of a Nonprofit basis. The World Bank defines
NGOs as “Private organisations that pursue activities to relieve suffering, promote the
interests of the poor, protect the environment, provide basic social services, or undertake
community development.” 2 The term "non-governmental organization" was first coined in
1945, when the United Nations (UN) was created. The UN, itself an intergovernmental
organization, made it possible for certain approved specialized international non-state
agencies — i.e., non-governmental organizations — to be awarded observer status at its
assemblies and some of its meetings. Later the term became used more widely. Today,
according to the UN, any kind of private organization that is independent from government
control can be termed an "NGO", provided it is not-for-profit, non-prevention, but not simply
an opposition political party. The basic responsibility of it lies in
 Social development
 Development oriented programs
 Welfare motive
 Empowerment of people
 Beneficial to marginality groups of the society

1
Research Scholar, University of Kerala, India
2
https://en.wikipedia.org/wiki/ Non-governmental_organization
3
Wikipedia

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“NGOs in India have their origins in ancient times: written in 1,500 BC, the Rig
Veda, the ancient Aryan Scriptures, promoted the values of dharma (personal
obligations), jeev daya (humanitarian concern and a concern for all living things) and
voluntarism and philanthropy”. 4 During earlier days the idea of charity was practised
as a path of religious satisfaction. The noblemen or kings used to give daana to the
needy people. Daana generally used to be the annadaana (offering food, grains,
edibles).This daana and seva was done to receive blessings or good wishes from the
people.During the 19th century with the emergence of various organisations by Raja
Ram Mohan Roy,Gandhiji,M.G.Ranade etc had lead to the emergence of the newly
formed NGO’S.The emergence of National movement created a social base, social
religious values and secularist feeling among the Indian citizens.
“A recent Report on Non Profit institutions in India (March 2012) by the National
Accounts Division, Central Statistics Office, Ministry of Statistics and Programme
Implementation, Government of India (“MOSPI Report”) found that there were only
1.44 lakh societies registered till the year 1970, followed by 1.79 lakh registrations in
the period 1971 to 1980, 5.52 lakh registrations in the period 1981 to 1990, 11.22 lakh
registrations in the period 1991 to 2000, and as many as 11.35 lakh societies were
registered after 2000”37. 5 There are different types of NGO which includes
communitybased,civilsociety,environmental,voluntary,professional,business
organised,charity and government organised.All these aim to provide and human
values in the society.

Inte rnational NGOs :

6
These ranges from secular agencies such as CARE, Ford and Rockefeller Foundations to

religiously motivated groups. Their activities vary from mainly funding local NGOs,

institutions and projects, to implementing the projects themselves.

1. Operational NGOs, the primary purpose of which is the design and implementation of

development-related projects.

2. Advocacy NGOs, the primary purpose of which is to defend or promote a specific cause,

and influence the policies and practices of international organizations.

4
https://en.wikipedia.org/wiki/ Non-governmental_organization#History
5
http://www.mospi.gov.in/sites/default/files/annual_report/nsc_AR_2012-13.pdf
6
https://en.wikipedia.org/wiki/ Non-governmental_organization#Types

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7
The importance of NGO includes:
 Social development of the society
 Regional especially marginalised sector development
 Maintain an association with governor and governand
 NGOs are of great help in case of natural disaster / calamity like earthquake,
tsunami or floods.
 NGOs have a significant role in improving the standard of living and reducing the
poverty

There are various sources through which funds can be raised in an NGO

10
I] Internal sources:

Internal sources of funding are membership fees, subscriptions, interests/ dividends, sales of
products, individual donations and rent.

 Membership fees – Annual fees charged for becoming a member of the organization
 Subscription – Fees charged by the organization for publication.
 Interests/dividends – On any short term or long term investment of NGO

7
https://targetstudy.com/articles/importance-of-ngo-s-in-society.html
8
wikipedia
9
https://www.google.com/search
10
https://www.businessmanagementideas.com/financial-management/sources-of-finance-internal-and-external-
industries/10548

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 Sales of products – Funds are raised by sale of products like handicraft items, food items
and candles that are generally prepared by the beneficiaries.
 Individual donations –Individual donation.
 Rent- External cost

II] External sources:

External sources include Government, Foundations, Trusts, Funding Agencies, Corporations,

Public donations, Self- financing. Government. The Central and State Governments have
many schemes of various Ministries and Departments in the areas like Education, Health,
Children and Women welfare, Human Resource Development, Environment, Rural
Development. Many NGOs receive funds from government to work on their projects.
Foundations, Trusts, Funding Agencies: National Foundations/ Funding Agencies,
Foreign/international foundations / Funding Agencies and Trusts are one of the major sources
of funds for NGOs.

III)Corporations:

Corporate sector includes the corporations and business houses acting as a funding source
for NGOs.
 Public donations: Donations given by an individual or a group of individual for
charitable cause.According to a national (India) survey covering around 28 percent of
urban India and concluded in August 2001 by Sampradaan.96% of upper and middle
class households in urban India donate to a charitable cause. The total amount donated
is Rs. 16.16 billion.

ANALYSIS OF THE REPORT

The methodology adopted in this project includes secondary sources and primary
sources.

It includes questionnaire which was given to 10 to workers and managers who were working
in an NGO unit in KALLAYAM.

1-What is the basic Educational level of the staffs working here?

A-Below SSLC B-Under Graduate C-Graduate

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COUNT

BELOW SSLC
UNDER GRADUATE
GRADUATE

2-How long have you been working here?

A-more than 2 year B-less than 1 year C- recently joined

6 COUNT
4

2 COUNT

0
more than 2 year less than 1 year recently joined

3-Is your organisation a charity oriented one?

A-yes B-No

COUNT
yes
no

4-Is this your main source of income?

A-YES B-NO

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RESPONSE
10

5
RESPONSE
0
yes no

5-Are you happy with the available income?

A-YES B-NO

COUNT
5
0 COUNT
YES
NO

6-Are you able to generate to suitable profit out of it?

A-YES B-NO

COUNT
YES
NO
CHARITY BASIS

7-According to your opinion is more jobs created out in this sector?

A-YES B-NO

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COUNT

10
0 COUNT
COUNT
YES
NO

8-Do you feel safety in your job area?

A-YES B-NO

COUNT
10

5
COUNT

0
YES NO

9- Are you ready to make this profession as a source of livelihood?

A-YES B-NO

COUNT

100%
COUNT
0%
YES
NO

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10-Do you support your younger ones to prefer this job?

A-YES B-NO

COUNT
10

5
COUNT

0
YES NO

From my study it was depicted that it is the younger generation who are on to the field of

NGO’s .Most of them perform other jobs and along with that they take this as a source of

happiness. It is the younger ones who are more encouraged in this sector. The respondents

argue that they regard it not simply as source of livelihood alone but as means to transform

the society. The recent flood in Kerala were the powerful hands of the NGO’s was seen, their

hands in disaster management were all appreciable. Hence my study envisages the idea that

the role of more and more NGO’s need to uplifted for the prosperity of the economy. The

growth of NGOs over the past two decades has given them an increasingly important role and

led to them forming a distinctive sector within civil society. An overview is set out of the

global and local trends affecting NGO work, and how they have responded to recently

emerging issues and problems. The complementary roles that NGOs, governments and

international agencies can play are noted. The current spectrum of NGO activities is

described. The ways in which these activities have been shaped by historical and recent

forces are outlined. NGOs are defined, and their current activities described. These fall

across a spectrum from those directed at the “care and welfare” of the disadvantaged to

“change and development” activities which are directed at concerns and issues which affect

the disadvantaged or which are detrimental to the well-being of people or society as a whole.

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NGOs engage in both direct and indirect forms of action.NGOs provide expert analysis in the

field; serve as early warning agents and help monitor and implement international

agreements. NGOs also help raise public awareness of issues, play a major role in advancing

UN goals and objectives and contribute essential information at UN sponsored events. In the

medieval era, voluntary work was focused on education, health, cultural promotion and

natural calamities such as droughts, floods. “Voluntary organizations proliferated and

actively participated in various fields of social action during the British rule. They were

engaged in social welfare activities, literary and relief works” The first half of the nineteenth

century (1800 to 1850) was the era of social reform movements. Various social reformers like

Raja Ram Mohan Roy, Ravindranath Tagore, Dayananda Saraswathy, Iswara Chandra

Vidyasagar, Kesava Chandra Sen, Ram Krishna Paramhansa, Sayyed Ahmed Khan, Swami

Vivekananda, Vinoba Bhave, Keshab Chandra Sen and Mahatma Phule had focused their

work to eliminate practices like Sati (a recently widowed woman would immolate herself on

her husband‟s funeral pyre), child marriage, caste discrimination, untouchability and promote

practices like widow remarriage and inter-caste marriage. During this period many

organizations were formed, to name a few- Atmiya Sabha (1815), Brahmo Sabha (1828),

Dharma Samaj (1830), Widows Remarriage Association (1850), Satya Shodhak Samaj

(1873), Arya Samaj (1875), the National Council for Women in India (1875), Indian National

Social Conference (1887) , the Ram Krishna Mission (1898). This increased number of

NGOs resulted in the Societies Registration Act of 1860. This act gave the legal identity to

the NGOs.11

11
http://www.yourart iclelibrary.co m/sociology/sociology-of-development/ngos-and-development-history-and-
role-in-india/30699

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CONCLUSION

Thus NGO plays an important role in the development of our economy.The entry of the
younger generation gives hope to the area of operation which mainly rest upon the principle
of a Non-profit basis. The growth of NGOs over the past two decades has given them an
increasingly important role and led to them forming a distinctive sector within civil society.
An overview is set out of the global and local trends affecting NGO work, and how they have
responded to recently emerging issues and problems. The complementary roles that NGOs,
governments and international agencies can play are noted. The current spectrum of NGO
activities is described. The ways in which these activities have b een shaped by historical and
recent forces are outlined. NGOs are defined, and their current activities described. The
emergence of organized civil society and of nongovernmental organizations (NGOs) as
organizational manifestations of broader social movements has dramatically altered the
global political-economic landscape. The increasing global reach of NGOs challenges
established international business (IB) research, and highlights opportunities for broadening
and adapting extant paradigms in the field. In this article, we introduce the concept of NGOs
and contrast them with their private-sector (firm) and public-sector (government)
counterparts within the context of IB. We discuss factors giving rise to NGOs as important
organizational entities that participate in global value creation and governance, and identify
limits to their efficacy and viability. We identify important questions raised by incorporating
NGOs into our conceptualization of global context, and we challenge three basic tenets of IB
theory: the definition and dynamics of an institutional field, the relevance/centrality of a firm-
government (i.e., two-sector) bargaining model, and the pre-eminence of the firm as the
global organization of interest within the field. We conclude by offering s uggested research
directions that should serve as catalysts for this new and potentially rich area of future IB
research. The term NGO is nota common term which is used everywhere. In some parts it is
known as Non-profit organisation. Based on orientation and development strategy the
organisational pattern of NGO differs from one another. They are never faced retention with
short term financial constraints or are dismissed any projects with the problem of financial
matters in it.

Duggal (1988) defines NGOs in his study. According to him,

(a) NGOs are registered as public trusts or societies;

(b) Programmes adopted by NGOs are welfare programmes and many a time it is
government funded rural development programs;

(c) NGOs as a rule do not generate their own funds completely but rely on external financial
assistance from government agencies, both national and international;

(d) NGOs are private organizations, but their nature makes them somewhat different from
what one gradually refers to the private sector.

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It performing as a voluntary organisation and social organisation touches each area of the
population even the health care sector.The recent CORONA-19 is the best example for this
that many of the NGO units take place actively to curb the problems of the economy.Since it
being a government registered entity it adopts the principle of welfare in it and tries to
safeguard the welfare of each and everysection of the society.
12
The fund for NGO can be organised from various sources which includes

 Funding schemes of Central Ministries of Government of India

 Funding schemes Government of India
 Funding schemes of foreign funding agencies
 Funding schemes of private funding agencies
 Funding schemes of state governments
 CSR funding schemes
13
The top NGO’S are as under

BINGO: “ Business- friendly International NGO”

• TANGO: “Technical Assistance NGO”
• TSO: “Third Sector Organization”
• GONGO: “Government Operated NGOs”
• DONGO: “Donor Organized NGO”
• INGO: “International NGO”
• QUANGO: “Quasi- Autonomous NGO”
• National NGO: “ A non-governmental NGO that exists only in one country”
• CSO: “Civil Society Organization”
• ENGO: “Environmental NGO”,such as Greenpeace and WWF
• NNGO: “Northern NGO”
• PANGO: Party NGO i.e. NGO set up by parties and used as a front for political matters.
• SNGO: “Southern NGO”
• SCO: “Social Change NGO”
• TNGO: “Transnational NGO”
• GSO: “Grassroots Support Organization”
• MANGO: “Market Advocacy Organization”
• NGDO: “Non-governmental Development Organization”
These organisations mainly functions to improve the welfare of the society. If we consider
the growth of the NGO units it is depicted that from the earlier days of operation, its
functions have showed a developing strategy here and there.

12
https://ngosindia.com/
13
https://www.mapsofindia.co m/ my-india/india/ngos-in-india

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Inspite of its success the NGO units have many weaknesses which includes

 Dependence on donors
 Lack of skilled manpower
 Limitations with long term and large scale projects
 limited financial and management expertise
 limited institutional capacity
 low levels of self-sustainability
 isolation/lack of inter-organizational communication and/or coordination
 small scale interventions
 lack of understanding of the broader social or economic context

The study however revealed that most of the workers undertake it as a pleasant activity as a
basis to help others especially the vulnerable section. They even without expecting the profit
whole heartily deliver and perform their function to its possible extent. Various forms of
government allowances as well as private entity support are offered to various NGO’s who
function efficiently and had bought way for several changes in our economy.Inspite of the
difficulties their performance in the time of flood and other such calamities.

Thus the role of the NGO includes:

floods.

een people and the government which act as a communicator,

facilitator or active force for solving the problem.

h and education for development of the

country.

play a vital role in education. NGOs try to reach the under privileged children and youth and
make sure they get education.

in most of the fields that bring about the economic and social growth and concern for the
environment.

issues like empowerment

of women, human rights, environment concern through campaigns, rallies or workshops.

play an important role in CSR activities. NGOs being more kno wledgeable about social

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structure and social problems, expert advice or assistance of NGOs is very useful for
corporate sector in executing their CSR activities.

The main functions includes:

14
Development and Operation of Infrastructure:
Community-based organizations and cooperatives can acquire, subdivide and develop land,
construct housing, provide infrastructure and operate and maintain infrastructure such as wells
or public toilets and solid waste collection services. They can also develop building material
supply centres and other community-based economic enterprises. In many cases, they will need
technical assistance or advice from governmental agencies or higher- level NGOs.
Supporting Innovation, Demonstration and Pilot Projects:
NGO have the advantage of selecting particular places for innovative projects and specify in
advance the length of time which they will be supporting the project - overcoming some of the
shortcomings that governments face in this respect. NGOs can also be pilots for larger
government projects by virtue of their ability to act more quickly than the government
bureaucracy.
Facilitating Communication:
NGOs use interpersonal methods of communication, and study the right entry points whereby
they gain the trust of the community they seek to benefit. They would also have a good idea of
the feasibility of the projects they take up. The significance of this role to the government is
that NGOs can communicate to the policy-making levels of government, information bout the
lives, capabilities, attitudes and cultural characteristics of people at the local level.

NGOs can facilitate communication upward from people tot he government and downward
from the government tot he people. Communication upward involves informing government
about what local people are thinking, doing and feeling while communication downward
involves informing local people about what the government is planning and doing. NGOs are
also in a unique position to share information horizontally, networking between other
organizations doing similar work.

Technical Assistance and Training:

Training institutions and NGOs can develop a technical assistance and training capacity and
use this to assist both CBOs and governments.
Research, Monitoring and Evaluation:
Innovative activities need to be carefully documented and shared - effective participatory
monitoring would permit the sharing of results with the people themselves as well as with the
project staff.
Advocacy for and with the Poor:
In some cases, NGOs become spokespersons or ombudsmen for the poor and attempt to
influence government policies and programmes on their behalf. This may be done through a
variety of means ranging from demonstration and pilot projects to participation in public
forums and the formulation of government policy and plans, to publicizing research results and
case studies of the poor. Thus NGOs play roles from advocates for the poor to implementers of
government programmes; from agitators and critics to partners and advisors; from sponsors of
pilot projects to mediators.

14
http://www.gdrc.o rg/ngo/ngo-roles.html

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WOMEN EMPLOYMENT – A CONTINUOUS STRUGGLE

*MEENAKSHI RAJ 1

“Annie Besant: First female President of Indian National Congress: 1847-1933”2

“Indira Priyadarshini Gandhi: An Indian politician and a central figure of the Indian National
Congress. She was the first and, to date, the only female Prime Minister of India ”3

Many ingenious arguments have been bought forward to prove, that the two sexes, in
the acquirement of employment, have attained a very different character, or broadly speaking,
women, who are presented with diverse and conflicting views, are making their mark from
homes to academics and to the sports field, in male-dominated areas and refining their roles
in the society. Looking back to the earlier period, the Indus Valley Society, an important and
significant role had been played by women. Where in most societies masculine sex sculptures
were made, in Indus valley, predominant sculptures showing women were made. They were
respected more and treated better than most of their counterparts in the rest of the world.
Their primary role consisted of works at home, in the farms and as shown in the evidence,
women rose to high positions in the civilisation, including, even as priests but they still
remained at home and tended to simple household chores. 4

Then came the Vedic age. It was an important phase in the progress of Indian
civilization and culture. The status of woman during this period was that of respect and
esteem. They moved freely and participated in the public feasts and festivals. Women were as
free as their male counterparts. Home was their place of production. They helped their
husbands in agricultural pursuits andwere even consulted by their husbands in financial
matters.

Women even acquired the same position as man in intellectual and spiritual life. Some
rose as warriors and like Vishwavara, Apala, Ghosha some composed hymns to attain the
rank of rishi.

1
1st year, Student at Law Center, Faculty of Law, University of Delhi
2
www.inc.in › leadership › past-party-president › annie-besant

3
https://en.wikipedia.org/wiki/ Indira_ Gandhi
4
https://courses.lumen learning.co m/boundless -worldhistory/chapter/the-indus-river-valley-civilizations/

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Unmarried daughters had a share in their fathers’ property and full legal right in the
property in the absence of the son. Property in the case of mother’s death was equally divided
among the sons and the unmarried daughters. Girls were given freedom to choose their
husband and were married only after attaining the age of maturity. 5

After the Vedic period, the status of women gradually declined during the post-Vedic
period. This happened majorly due to the non-Aryan wives. They did not have any
knowledge of Vedic rituals and could not associate themselves with their Aryan husbands in
participating in the rituals. With course of time, the girls were denied formal education. The ir
marriageable age of came down to 8 or 10 years. The incidence of pre-puberty marriages
increased and child-wives without education became the order of the day. There were
conflicting opinions about the wife’s position in the household. The practice of monogamy
for the wife was another indicator of the lower status of women, while the husband was free
to have several wives. The husband could discard his wife on flimsy grounds. A wife who
bore only daughters could be superseded by someone else. 6 From the earlier times till today,
women have been facing various issues relating to their status, their freedom and even on
their right to be working outside of homes.

Have we ever sat down and thought to ourselves, when God created both the genders equally,
then, why is it the society, particularly the male dominated society, not ready to accept
women in the employment areas? Population Census of 2011 revealed the population ratio of
India to be 940 females as per 1000 males. According to the 2019 World Economic Forum’s
Global Gender Gap index, India slipped to the 112 th position. The reason for the same is due
to the rising disparity related to women’s health and participation in the economy. Women
are the unsung heroes of the society. Unlike a significant portion of men, who are reluctant to
share responsibilities with the females, women have always stood up to each and every task
that is given to them. Be at homes or at the workplaces, excellence has always been shown by
the women.

5
https://www.quora.com/What-was-the-status-of-women-in-the-early-Vedic-period
6
http://www.yourarticlelibrary.co m/society/status -of-wo men-in-vedic-and-post-vedic-period/4397

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Men, on the other hand are reluctant to share responsibilities like child-rearing, in
particular—at home, which makes it difficult for women to work outside homes. It is also felt
by a significant portion of men that a woman’s family worth is what should determine her
decision to work.

“It is the man who does all the work. It is the man who earns for his whole family. If a man
does not earn, how with the family be able to survive.”

In the earlier times and even today, in most households, it is the man who is the breadwinner
of the family. He leaves home in the morning, comes back home all tired from work. But, has
any thought been given to the women who stay at homes and are the ones who build that
man’s house?

Women today are realising what their rights are, how freedom feels like. They are educating
themselves to know what is right and what is not. Women are walking hand- in-hand with
their male counterparts to work so that they can support their families financially. Women are
thus being empowered to know about gender equality, minimizing gender gap and realizing
that when women work, economy grows.

As per Part-III of the Constitution, also called the ‘Magna Carta of India’, certain rights have
been given to each individual living in this country, called the Fundamental Rights. They aim
at establishing ‘a government of laws and not of men’.

Article 14: Equality before Law and equal protection of Law.

Article 15: Prohibition of Discrimination on certain grounds (caste, race, sex, place of birth,
religion)

Article 16: Equality of Opportunity in Public Employment/ Place of Work.

Article 19: Freedom of Speech etc.

Clause (g): Right to practice any profession or to carry out any occupation, trade or business.

Article 39(d): Equal pay for equal work for both men and women.

Article 42: Provisions for just and humane conditions for work and maternity leave.

Thus, all laws that are made by the Constitution of India stands same for every individual, be
it a man or a woman.

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In the Leading Case: Serc., Ministry of Defence v Babita Punia, 17th February, 2020, A quest
for equality of opportunity for women seeking Permanent Commissions in the Indian Army
formed the basis of the appeals. The lead appeal originated in a batch of Writ Petitions which
were instituted before the High Court of Delhi in 2003 and 2006. A decade and more spent in
litigation, women engaged on Short Service Commissions in the Army seeking parity with
their male counterparts in obtaining PCs.

The entry of women in the Army has a chequered history. Section 12 of the Army Act-
“Ineligibility of females for enrolment or employment.- No female shall be eligible for
enrolment or employment in the regular Army, except in such corps, department, branch or
other body forming part of, or attached to any portion of, the regular Army as the Central
Government may, by notification in the Official Gazette, specify in this behalf”, does not
allow women to be a part of the army.

Pursuant to the power conferred by Section 12, the Union Government issued a notification
dated 30 January 1992 making women eligible for appointment as officers in the specific
branches/cadres of the Army. On 28 October 2005, a notification was issued by the MoD by
which the Union Government extended the validity “of the scheme of appointment of women
as officers in the Indian Army”.

During the course of the proceedings, two circulars were issued conveying the sanction of the
President of India regarding the grant of SSCs both on the technical and non-technical side to
women officers.

“SSC Women Officers will be considered for grant of PC based on the availability of
vacancies and subject to willingness, suitability, performance, medical fitness and
competitive merit. On grant of permanent commission, these women officers will be
employed in various staff appointments only as per their qualification, professional
experience, specialization if any and organizational requirement”.

Govt. of India, Ministry of Defence dated 26th September, 2008 for the first time took a
decision to grant Permanent Commission to SSC women Officers in all the three Forces. 7

7
https://indiankanoon.org/doc/117198144/

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In another Leading Case: Annie Nagaraja and Ors. V Union of India & Ors, 2015,
KAILASH GAMBHIR, J. decided a batch of six Writ Petitions filed by seventeen women
officers who had joined the Indian Navy as Short Service Co mmissioned Officers in different
branches including Education, Logistics and ATC.

“The grievance raised by these seventeen Petitioners in these Writ Petitions is that after
having completed 14 years of service as SSC Officers they were not granted Permane nt
Commission and instead were released from service unlike in the case of Women SSC
Officers of Indian Army and Air Force, who have been given Permanent Commission in the
same very branches where they were granted Short Service Commission on the
implementation of the directions given by the Division Bench of this Court in a batch of Writ
Petitions in the case of Babita Punia & Ors. decided on 12th March, 2010”.

Representing the case of these seventeen Petitioners, Mrs. Rekha Palli, the learned Senior
Advocate and Ms. Meenakshi Lekhi, Advocate vehemently contended that “women officers
of all the three Forces have always been treated at par and this as per the learned counsel is
manifest from the fact that earlier there was a bar for induction of women in all the three
Forces and lately the sanction was granted by the Government for the grant of Permanent
Commission to Short Service Commissioned Officers of all the three Forces. Placing reliance
on the judgment of this Court in the case Babita Punia & Ors. (supra), the learned counsel
referred to the observations that it was reasonable for the women officers of the Army to
expect that they would be treated at par with the women officers in the Air Force and
legitimately expect a fair treatment at the hands of the Government”.

Counsel for the petitioners also submitted that “in a catena of judgments the Hon'ble Supreme
Court has taken a view that equality cannot be achieved unless there are equal opportunities
and if a woman is debarred at the threshold to enter into the sphere of profession for which
she is eligible and qualified, it is well- nigh impossible to conceive equality. Counsel also
submitted that instead of prohibiting women employment in the forces altogether, the State
should focus in factoring in ways through which unequal consequences of sex differences can
be eliminated. Counsel thus contended that action of the respondents to consider women
officers only for the grant of SSC while granting permanent commission to similarly placed
male officers shows a clear case of gender bias on the part of the respondents ”.

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The Division Bench in the said case also took a view that where male SSC Officers can be
granted PC while performing the same task as are being performed by the women SSC
Officers then there is no reason as to why equally capable women officers cannot be granted
permanent commission. The Bench further went on to observe that it is not a charity being
sought by the women officers but enforcement of their Constitutional right. The Court also
observed that the women officers of the Army can be treated no differently from the Women
Officers of the Armed Forces even though there is no specific policy decision in their case as
they are at par with the Women Armed Force Officers.

It further held that there is no reason why these persons who have knocked the door of the
Court, should be deprived of their benefit and the benefit is merely conferred prospectively
for the grant of permanent commission to women. The Court thus extended the benefit to all
the serving officers and also the ones who had knocked the Court but during the period of
consideration of the matter, retired from service.

Thus, the grant of permanent commission was granted by the Hon’ble court. 8

In, Lt. Col SPS Rekhi v UOI & Ors, 1999 (2002) DLT 238, the Court noticed that all the three
Forces come under the same Ministry and thus ‘there could not be any discrepancy in the
three Forces which were equal in all aspects and therefore, there can be no reason as to why
the Government should deprive one of the Forces of the benefit being granted to the other
Armed Forces’. 9

In Jitendra Kumar & Ors. v. State of Haryana & Anr.( 2008)2 SCC 161, it had been
reiterated that “a legitimate expectation is not the same thing as an anticipation. It is distinct
and different from a desire and hope. It is based on a right. It is grounded in the rule of law as
requiring regularity, predictability and certainty in the Government's dealings with the public
and the doctrine of legitimate expectation operates both in procedural and substantive
matters”. 10

8
https://indiankanoon.org/doc/58032153/
9
https://indiankanoon.org/doc/994282/
10
https://indiankanoon.org/doc/952671/

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Women have made great strides at workplace, but safety for a female is what has been a
concern for a long time and it still persists. If an individual goes to work and is stared at, for
her clothing, her lifestyle, her body measurements, unnecessary touching or trying to involve
into a conversation to which the woman has denied of having, makes it very difficult for the
women to achieve their goals or focus on their work, subject to gender specific violence.

Sexual Harassment is a disagreeable sexually determined behaviour direct or indirect, in

terms of:

a) Physical contact and advances

b) A demand or request for sexual favours
c) Sexually coloured remarks
d) Showing pornography
e) Any other unwelcome physical, verbal or non- verbal conduct of sexual nature.

In the Leading Case: Vshakha & Ors v State of Rajasthan, 1997, The Writ Petition had been
filed for the enforcement of the fundamental rights of working women under Articles 14, 19
and 21 of the Constitution of India. With the increasing awareness and emphasis on gender
justice, there is increase in the effort to guard such violations; and the resentment towards
incidents of sexual harassment.

The immediate cause for the filing of this writ petition is an incident of a lleged brutal gang
rape of social worker in a village of Rajasthan. That incident was the subject matter of a
separate criminal action and no further mention of it, by us, is necessary. The incident reveals
the hazards to which a working woman may be exposed and the depravity to which sexual
harassment can degenerate; and the urgency for safeguards by an alternative mechanism in
the absence of legislative measures.

The trial court acquitted the accused but she didn’t lose hope and seeing her determination all
female social workers gave their support. They all filed a writ petition in Supreme Court of
India under the name ‘Vishakha’. The apex court was called upon to frame guidelines for
preventing Sexual Harassment at Workplace.

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The hon’ble court did come up with such guidelines as Vishakha Guidelines which formed
the basis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.

Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its
history since its inception. The court seeing the importance of the matter, came directly into
the ground by breaking all the restrictions upon it by the constitution and laid down such
guidelines which would ensure that no such act of harassment goes unpunished. 11

Where somehow women deal with the harassment, the other factor that constitutes to
inequality with women at workplaces is the difference between the earnings of man and
woman for the same work.

Where on one hand, it is the housewives, the unpaid labourers, who work day and night, but
hardly get any recognition for their work. If the unpaid labour of the women would be
considered, half the world would be in debt. They are not often given the credit for their
labour which they contribute to the economy. On the other hand, it is the women who work
outside of their homes, performs the same tasks as men, but are paid less than them. As
indicated by the reports, women earn only 70-80 percent of what is paid to men.

In the recent ad of Imara, actress Kareena Kapoor came forward to give the message ‘women
have to work tirelessly since forever to make her voice heard, to earn their rights and even
their place in the society’. Being paid 20 percent less than men for the same work is
something that needs to stops and it’s time for women to realise their worth in the society.
Never give up on what is yours’.

In the Leading case: Randhir Singh vs Union Of India & Ors on 22 February, 1982, The
Judgment of the Court was delivered by CHINNAPPA REDDY, J. 'Equal pay for equal work'
is not a mere demagogic slogan. It is a constitutional goal capable of attainment through
constitutional remedies by the enforcement of constitutional rights. Article 39 (d) of the
Constitution proclaims, as a Directive Principle, the Constitutional goal of
'equal pay for equal work for both men and women'. 12

11
https://indiankanoon.org/docfragment/1031794/?fo rmInput=sexual%20harassment%20at%20work%20p lace
12
https://indiankanoon.org/doc/128865780/

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Apart from the many factors on how men and women are looked upon, media is considered
to be one of the most powerful and pervasive. Women are represented everywhere. In the
prime-time television, there are as many three times men than women. In newscasts, women
only make up a certain percent of males included. Only about 5 percent of televisio n writers,
producers, directors are women.

In the 17th Lok Sabha, only 14 percent women were present of the total count. In the legal
practice, though the Indian Constitution is independent enough to give every individual the
right to equality and right against discrimination on the basis of gender and acquiring any
education or practicing any profession of their choice, the legal profession has not become a
popular choice for women. However, the women who have entered this profession have done
it without displacing men and, therefore, without disturbing the male- dominated power
structure. 13

Moreover, there are presently only 3 sitting female judges out of the total
34 judges (including Chief Justice of India) in the court namely R. Banumathi, Indu Malhotra
and Indira Banerjee. 14

The Supreme Court collegium even have transfered Justice V K Tahilramani, the incumbent
Chief Justice of the Madras High Court to Meghalaya High Court, not acceding to her request
for reconsideration of her transfer. 15 .

To help women grow, be empowered, the government has come up with certain schemes, for
the betterment of the society. These are :-

1) Mahila E- haat : a direct online marketing platform laumched by the Ministry of Women
and Child Development to support women entrepreneurs, Self Help Groups and NGOs to
showcase products made and services rendered by women.

2) Beti Bachao, Beti Padhao : This is a social campaign aimed at eradication of female
foeticide and raising awareness on welfare services intended for young Indian girls. The
“Save the Girl Child” is a joint initiative run by the Ministry of Women and Child
Development, Ministry of Health and Family Welfare and Ministry of Human Resource
Development. Selective abortion or female foeticide in India has led to the sharp decline in

13
https://shodhganga.inflibnet.ac.in/bitstream/10603/29299/12/12_chapter%204.pdf
14
www.wikipedia.com
15
https://economict imes.indiat imes.com/

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the ratio of girls born in contrast to boys in some states of the country. To bridge this gap, the
scheme has been implemented.

3) Mahila Shakti Kendra: The government launched the Mahila Shakti Kendra in 2017 to
empower rural women with opportunities for skill development, employment, digital literacy,
health and nutrition. The Mahila Shakti Kendras will work through community engagement
through student volunteers in the 115 most backward districts. Each Mahila Shakti Kendra
will provide an interface for rural women to approach the government to avail of their
entitlements through training and capacity building. It works at the National, State, District,
and Block levels.

4) Support to Training and Employment Programme for Women (STEP): The STEP scheme
was set up to provide skills to women so that they can take up gainful employment. It also
provides the right competencies and training for women to become entrepreneurs. Open to
every woman above the age of 16, it is run through a grant given to an
institution/organisation including NGOs directly. The assistance under STEP Scheme will be
available in any sector for imparting skills related to employability and entrepreneurship,
including but not limited to the agriculture, horticulture, food processing, handlooms,
tailoring, stitching, embroidery, zari, handicrafts, computers & IT-enabled services along
with soft skills and skills for the workplace, such as spoken English, gems and jewellery,
travel and tourism, and hospitality. 16

Next are certain Acts and Bills have been passed by the government as an initiative to help
women at their workplaces.

These are:

1) The Factories Act, 1948: This Act is a legislation to secure to the workers employed in a
factory, health, safety, welfare, proper working hours, leave and other benefits. The Factories
Act aims at protecting workers employed in factories from unfair exploitation by their
employers.

16
https://www.goodreturns.in/classroom/2018/02/7-indian-govern ment-schemes-wo men-
empowerment/articlecontent-pf11340-680804.ht ml

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2) Maternity Benefit Act, 1961: The Act was formed to regulate the employment of women
in certain establishment for certain period before and after child-birth and to provide for
maternity benefit and certain other benefits. The Act is applicable to all establishments which
include factories, mines, plantations, Government establishments, shops and establishments
under the relevant applicable legislation, or any other establishment as may be notified by the
Central Government. As per the Act, to be eligible for maternity benefit, a woman must have
been working as an employee in an establishment for a period of at least 80 days within the
past 12 months. Payment during the leave period is based on the average daily wage for the
period of actual absence. 17

3) The Equal Remuneration Act, 1976: Where women workers are getting paid lesser than
their male counterparts, Article 39 of our Constitution directs that States shall in particular
have policies towards securing equal pay for equal work for both men and women.

4) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

Act, 2013: Sexual harassment at workplace is not uncommon, there are various cases dealing
with harassment in the workplace. India finally enacted its law on prevention of sexual
harassment against female employees at the workplace in 2013. The statute was enacted
almost 16 years after the landmark judgment of the Supreme Court of India, in the matter of
Vishaka and othersv. State of Rajasthan (“Vishaka Judgment”). The Vishaka Judgment laid
down guidelines making it mandatory for every employer to provide a mechanism to redress
grievances pertaining to workplace sexual harassment and enforce the right to gender equality
of working women.

5)Women’ Reservation Bill: It is a pending Bill in India which proposes to hold 33% of all
seats in the Lok Sabha and in all State Legislative Assemblies for women. On the off chance
that passed, this Bill will give a huge lift to the position of women in legislative issues.

Conclusion: The biggest obstacle for gender equality in the workplace today is that men have
not been incorporated into theoretical framework. A workplace needs to adapt to the ‘whole
person’, i.e., both men and women. We need to start changing our attitudes towards the role
of women in the field of work and in society.

17
https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

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COPYRIGHT PROTECTION IN CYBERSPACE: COM PARATIVE STUDY

BETWEEN INDIA AND USA

* MOHD. ATA HASAN

INTRODUCTION

The advancement of new technology has been taking place time to time and it has been really
fast in the 21st century like robots, applications, phones with extraordinary specifications the
producers are fighting among themselves to bring and introduce a ne w thing to the public.
Technology has been making life easier than it was before. The Internet has reached every
nook and corner and is easily accessible by one and all. Technology has pushed the copyright
growth first Copyright Act of 1790 only provided protection to unauthorized copies of maps
and charts and books but with the growth. It gradually started giving protection other creative
work like photographs, visual, art, motion picture, sound recording, software, computer
programs and architectural work which does not only provide the writer to protect but it also
privileged the creator with the exclusive right as public distribution, derivatives, public
performance, and public display.

Although in one hand technology definitely help in the growth of copyright protection in the
other hand it allows unauthorized user to copy the work of the author from the internet
without the consent of the creator and anyone can steal where there will be no difference or
very minimal difference between the original and copied work so, Electronic Copyright
Management System was implemented to demonstrate that licensing of rights and promotes
electronic registration of copyright work.

To prohibit crimes like piracy and to protect the authors and creators right and to provide him
the right to enjoy his creativity The Digital Millennium Copyright Act was established that
protects creative works on the internet and provide the legal foundation of rights management
in digital works. It protects both the copyright owner and the internet service, provider.

HOW COPYRIGHT WORKS?

Copyright is implemented to give the creator the right to protect his literary, dramatic,
artistic, musical work bundle of rights to protect his work from being copied by any
unauthorized user and it safeguards the right of the creator or the owner making it impossible

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for others to copy their creative work, which in return would enable others to bring forth new
ideas. The copyright provides protection of expression but not ide as

 To claim copyright protection it is not necessary to register the work?

Copyright is automatic in nature and does not need any formality to acquire the
copyright protection. But certificate of registration of copyright can be granted after
the registration is being made by the owner for original work in the registration office
which is known as copyright office u/s 9 of The Copyright Act. Which is a shred of
necessary evidence or a prima facie evidence in the court of law regarding any dispute
arising regarding the ownership of the creator or author.
 Procedure for registration of work under The Copyright Act,1957
Copyright operates as soon as the work is being created and no registration is required
to complete for acquiring copyright protection.

The owner can register the copyrighted work to grant the license in respect of his work, in the
Copyright office according to Sec.9 of The Copyright Act, 1957 which speaks that 1

1) The office shall be established for the purpose of this Act and to be called the
Copyright Office.
2) The office should be under the immediate control of the Registrar of
Copyright who shall work under the supervision and direction of the Central
government.
3) There shall be a seal to be given for the copyright office.

The registration of certification works as a piece of prima- facie evidence in the court of law if
any dispute arises regarding the ownership of the work.

 Which works are being protected under The Copyright Act,1957

U/s. 9 of The Copyright Act, provides protection for original work of literary,
dramatic, musical and artistic work and it also provides protection for
cinematographic films and music with word or without so that no unauthorized person
shall copy from the original work but it does not grant protection to Ideas, thought or
concept. It only provides protection for original work and the first creator gets the
protection from the date of its creation.

1
The copyright Act,1957

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In the case, In the case Fateh sigh vs A.P Singhal 2 There can be no copyright in an idea,
motif, scenario or historical or legendary facts and breach of copyrights in such cases is
restricted to the form, technique, process, and proclamation of the idea by the creator of the
copyrighted work.

AUTHOR’S INTERPRETITON OF COPYRIGHT IN CYBERSPACE

With the development and advancement brought about with the advent of the technological
era, the copyright laws, in cooperation with this age, have taken a huge leap toward.
Nowadays, the internet being easily accessib le by one and all from every nook and corner of
the world and with the availability of innumerable contents and creative works provide and
owned by various owners from all over the world, every information and knowledge on
various topics, issues, etc. are a few clicks away, and within no time. 3

One such remarkable example on the use of the internet in providing the phrase “ The world
is a small place” truly, is the “Google book search”, which helps us get in touch with
innumerable books from the best libraries of the world within a few seconds.

Although the internet has been a boon for almost all, it also has some various shortcomings,
lack of originality is one such disadvantage, resulting from the easy accessibility of the
internet. With the advent of this technology, it has become much easier the user to copy the
original content and creative works of the owner, it being impossible to be stopped by the
latter.

To forestall such copyright infringement, the US copyright called for required steps to be
taken at a large especially motion picture, television programs, books, and software. The
protection of originality of the texts or works is the incentive, the creator was mainly
concerned with preventive their works from being infringed.

COPYRIGHT DEVELOPMENT IN INTERNET ERA

The application of Technology on all face has made everything much simpler and has
provided the consumers or users with much better service, making the contemporary
generation completely reliable on the electronic mode to gain access to data. The method of
registration has become much easier and more readily available and accessible to the public

2
Fateh sigh vs A.P Singha AIR AIR 1990 P H 412
3
Harish Chander, Cyber Laws and IT Protection, PHI learning Private Ltd. Publicat ion, New Delh i, 2012,at 14.

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24×7, with the help of the internet, keeping in view the requirement of Technology in today's
world and the increasing demand for it, Electronic copyright management system and Digital
Millennium copyright act 1998 was executed.

The main goal of Electronic copyright management is the management of issues related to
trading multimedia documents. It is mainly concerned with the removal of any sort o f doubts
related to copyright questions by clarifying them and also doubts regarding techniques of
regulating documents and information management systems such as access control, author
feedback, and availability. Protection of the rights of both the Founder and the consumer is
the main concern of the so-called objective of the latter. Under the World intellectual
property organization treaty (WIPO) this law is followed.

The copyright infringement has become a major concern and has evidently increased with the
electronic libraries being easily accessible as well as available to the general public, giving
rise to the requirement of legal protection as without this little steps the creators, afraid of
blood prism and originality of the text being affected or copied, would be reluctant to forward
and published their works. And the second most broad concern being the idea of the
foundation open with their work stands open that makes it prominent among all others,
contributing its original it being stolen, away and being remade by those who stole it with the
creator's idea in such a way that it becomes difficult for the people to distinguish between the
original and the copied. In such a scenario with the shopping of original takes being carried
out without the consent of the creator whatever affects the creator's moral rights and
contributing to copyright infringement. Hence the requirement of Copyright development
with technology in order to make it simpler for the author for Reproduction, Distribution
public performance digital display, Derivative work, Coaching is evident.

Development of many reports in accordance with copyright law application such as software
enables consumer products 2016, Making available rights in the United States 2016 and
Orphan mass digitalization 2015 was, made in the year 1950.

INFRINGEMENT OF COPYRIGHT IN THE INTERNET WORLD

In the year 1990, the court of law first state the word "internet in a judicial review in the case
US versus Robert Tapan Morris"4 . This case declaration of the verdict of a jury was held

4
United States v. Morris 928 F.2d 504.

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under the computer fraud and abuse at an appeal for sentencing of the Robert Tappan Morris
a graduate student for producing and for the emancipation the Morris worm on November 2
1988, in every part of the internet and gained a widespread recognition of the media which
was the emergence of the felony conviction in the US under the 1986 under the Computer
Fraud and Abuse act 5 Computer fraud: Dressler, J. in the case "US v. Morris". Cases and
substance on Criminal Law. Morris was sentenced because his worm that crashed hundreds
of institutional and defense computer and impacted computers attached to the internet. He
was tried and held liable for breaching United States code title 18 (18 U.S.C g 1030), t he
computer fraud and abuse at in US v Morris. After an application made in front of the
honorable court of law, he was sentenced for 3 years and penalized $10,050. Morris worm
was mentioned as General worm because of his process of causing so much damage effect,
that it produced on the Internet which affected the certainty of the internet.

The first case on internet copyright infringement is the case Atari games vs Nintendo (1992).
This was made in United States code for the federal circuit case in which the court was of the
judgment that Atari games breached the copyright lockout system and gain an unauthorized
copy of the original code from the copyright of office after making failed effort to overturn
engineer lockout system. Nintendo professes infringement and used “fair use" as a rebuttal
and Atari by fraudulently. Atari copyright fraudulence was averted by the doctrine of
unclean, has which announces the equitable defense in which dependent argues the plaintiff is
not entitled to acquire remedy because the plaintiff has performed in bad faith this is a rule by
A.P Herbert in atypical law.

In the case Future Dontics, Inc v Applied Anagramics Inc 6 , an unauthorized hyperlink
formulated by the AAI, to the future Dontics website, that enables the copyrighted materials
on the users' web site appeared within one of the frames. On a website, handled by the
defendant AAI, full pages were split into frames. The AI contributed contents that constituted
the balance of the page which also included the logo and information about business
operations. The AAI and charged against conduct comprising copyright infringement by the
plaintiff Future Dontics and were deprived of any possibility of discharging these allegations,
keeping in view that the complainant Future Dontics might substantiate discharge against
AAI of inventing an unauthorized by-product of the original work.

5
Copyright Corner, http://www.ariadne.ac.uk/ issue2/copyright/, accessed on, 25 March 2020.
6
Future Dontics Inc v. Applied Anargamics Inc 22249; 45 U.S.P.Q.2D (BNA) 2005.

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After the court dismissed all claims made by the complainant, with the latter being unable to
establish the alleged claim of copyright infringement as a veracious claim and its application
to prohibit.

The application of Technology on all fails has made everything much simpler and has
provided the consumer or users with a much better service. Making the contemporary
generation completely reliable on the electronic mode to gain access to data the method of
registration and has become much more readily available access to the public 24×7 with the
help of internet keeping in view requirement of Technology in today's world and the
increasing demand for it the Electronic copyright management system and Digital
Millennium copyright act 1998 was executed. The management of issues concerning the
trade of multimedia documents.

When the creative work is being published on the internet it became available to the public
free of cost and the owner cannot restrict the viewing. However, corporate work when
published on the internet without authorization, it became an infringement of copyright law.

In Playboy enterprise Inc v Frena, the case was decided by the United States district court the
court held and review that on unauthorized use of photographs is an infringement of
copyright. When any photograph of the video is being published to the public without an
Accountant of the artist featuring of head given consent of something is and the photograph
of the video is used for some other objective then it is a copyright infringement.

Authors right and WIPO internet treaties in the year 1970 WIPO undertake to effective ways
to adopt new advancement it states in order to you cope with the Technologies. In 1991
people came up with two committees professionals to give due consideration of the
intervention of new instrument to address the issues for the development behind copyright
regime for the depository of works and objects of neighbouring rights in digital system
,limitation and exception of rights in digital environment, electronic protection of rights and
measures of management information.

The agenda of digital protection to provide protection for author’s literary and artistic work
carried by the WCT committee and WPPT which includes protection for performers and
producers of phonograms.

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The committee debated the need to protect the author's right in the light of the digital
approach on-demand convenience and agreed. The system of work an object of neighboring
rights over the internet and the author should be given exclusive rights of authorization of the
rights. The committee did not agree with this.

AUTHOR’S RIGHT IN COPYRIGHT LEGISLATION

Right of Reproduction:

This right is one of the vital rights under the umbrella of the segments of work that have been
protected. Under this right the issue that has to be debated here whether the cropping of the
creative unique work of the author is an infringement or not.

In the internet platform the taste of similarity if the work is copied or unique work. In this
case of Atari games Corporation v, Nintendo of America Inc. 7 is the United States Court of
appeal for the federal circuit. In this case, the court held that Atari games infringed copyright
by copying the Lockout system of Nintendo's 10NES. The court, in this case, held that Atari
had infringed Nintendo copyright by creating verbatim "substantially similar" and stated that
verbatim copying is an infringement.

Sec 102(b) clearly states that copyright protection doesn't extend in protecting ideas,
procedures, process systems, method operation, concept or Discovery. In other words, it does
not provide authorization to non- literal aspects of the computer.

Public pe rformance and display right:

It does not cover the Ambit of computer software. The right to public display owners has t he
exclusive right to display or to officially allow the right to display the copyrighted work. This
right is given protection to your musical work but not to the recording of sounds. Public
display of copyrighted material means to show a visual copy of the work to the public. This
includes individual still images from the film, Reproduction of painting and drawing, sheet
music for musical works of photos. It may be direct or indirect through the use of film slides
or television

7
Atari Games Corporation v. Nintendo of America Inc 975 F.2d 832.

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Distribution right:

Copyright law enshrines the author of the copyright exclusive right to reproduce copies of the
work to the public by the sale or transfer of owners hip by one person to another. Internet
being open in nature provides the user copying of the work in an infinite number of copies
which may be similar to the real quality of work. The issue is that under the legislation
disagree with work on Digital Network not only comprises of public performance for display
by means of transmission. A public that has access to the internet can receive a copy of the
work. When a person distributes software does not transfer the ownership.

Derivative work:

In the computer era, the situation of imitating the work of another artist is very different it
includes programmers or updaters. There have been some cases, where programmers copied
and generated their own program by the combination of two or more programs.

In the case of Midway Mfg Co. V Art Int 8 , The court case United States district court for the
northern district of Illinois held that the feature of a video gallery game was protected under
copyright even though the pictures that become visible or noticeable on the screen where
impermanent and transitory. The case was pronounced by the United States Court of appeal
for seventh circuit. The court decided that it constituted to the unauthorized adaption of the
plaintiff's copyright.

In the case of Apple computed Inc v. Franklin computer Corp, was the first time and
appellate level court in the United States held in his decision that a computer operating
mechanism could be protected by copyright. In the case clarify that binary code, machine-
readable software is copyrightable too not only for the readable source code.

Coaching:

Computer application. It may be local coaching or proxy coaching it may be local coaching
or proxy coaching. Coaching in Coaching caused countless copyright infringement over t he
internet, in relation to includes the creating of similar copies, it is an immediate issue of
infringement of the right of reproduction. The Public Distribution, public performance and

8
Midway Mfg Co. V. Art Int 704 F.2d 1009.

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policies, digital performance arise due to Proxy catching which further rise to an
infringement. Under the WIPO, catching also infringes the transmission access right.

The problem of copyright infringement cannot be anyway limited. It is a large and vast
surface area where to copyright Law the internet cannot be restricted to the referred rights.

LEGAL ISSUES IN TECHNICAL COPYRIGHT SYSTEM

Possession of the rights:

The creator normally enjoys the right to work legal Association mail like to implement work
for their rights with someone else. The question is confusing in the scenario of illustration
like a film or plays when further like holder and producers of performance maybe elaborated.
Electronic corporate management system required to have information about the owner who
owns the right to license the use of specific work in an entire party.

Rights that are included:

It embraces the number of independent States which have segregated actuality in the in this
entire world. So it is called the standing stone. Hence it is constituted of three magnitudes of
a forge.

The Berne convention contains copyright rights and their components are available in many
Nation laws there are two across the bow categories as moral rights and economic rights. The
electronic copyright management system is apprehensive and lives with owners write that can
be authorized or down listed on a regular basis.

Which rights are granted?

An electronic communication indicator copy at least point of response. Some also question
that Electronic Communication the right of distribution a copy is not actually distributed.

ELECTRONIC COPYRIGHT MANAGEMENT SYSTEM

Electronic copyright management system is a rocket with the issue of pirated copies on the
internet of any original software that is loaded from the publisher's homepage. The epidemic
use of computerized Technology to invent, reverse, administer distribute, mechanism
information of all types of artistic and literary works. The implementation of digital is that
what is essential to protect without limitless work. Corporate management system usually
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involved two basic distinct attributes, which is a sense of recognition of content and aim to
preserve and licensing the owner for their unique work for being the only one kind, the
measurement of a surface area of payment also a part of the system. Protecting the right of
individuals or any mediator on behalf of the author. The holder of such right may use the
Apparatus to follow the trail of the performance of various works. The use of may be granted
for the unique work for the testimony for a single thing for a described purpose.

PROGRESS TECHNOLOGY

Todays were mostly depend on the technological instrument which generally provides the
user and the rights holder desirable access through using computers. The authorization
function can be made an effort list and trouble- free with the help of electronic devices.
Although Technology indeed brought many changes the execution improvement is not that
expeditious, with authority of database even the electronic copyright management system are
settled electronically and may have replaced the traditional use, but the pe rsonal action is
needed to for the authorization or licensing request. An entirely computerized authorizing or
licensing process that comprises of the scanned complete list of the required payment,
accessible content round the clock.

A set of things or networks that would entitle the rights of the proprietor, to enable their
rights of information and allow the license to the owner so that could function without person
interference, which would generally be provided with the benefit of charging cost low. The
most accomplishing feature is delivering the context rapidly, which are being an advantage
by the journal and Publishers. A high standard system maintains well between with both for
the depository and transactional rights.

In the depository writes the electronic copyright management system perpetuates the owner's
database that keeps the pace with both the owner and their work they are allowed to obtain
authorization of license as well as license renewal function. When this conceptualization of
an electronic corporate management system is applied to the experimental rights licensing
and application, the immense significance of the system becomes reluctant. Individual rights,
give the necessary opportunity to the owner to enable their rights to interchange it with other
rights owners and more strategically to a series of actions of individual agreements from
users. That is to grant authorized access to grant authorization for a distinct work
automatically to an individual user. An individual user to get the right to use an image, songs.

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Computerized apps may be sold online with numerous classification of license. When
accomplished online without person interference transactions evaluated very inexpensive.

In a transactional license, and electronic copyright management system performs as a

licensing "mechanism". There is the miscellaneous implementation of such a mechanism that
spans in electronic worldliness, a user will apply online through electronic medium to a
collective management institution that would exercise it physically and send it to the user. In
moderated technological scenario the organization would operate a technical database but
still exercise physically of the license request. With a comprehensive electronic copyright
management system, search and rights are contemplated online. The bulk of electronic
copyright management system drafted with a nonreciprocal convenience in judgment. It may
pertain list error-free configuration of management. There are various assemble of affairs that
are making it difficult for the improvement of the electronic copyright management system.
Little caliber and the little area constitutes the technical barrier but do not constitutional is 10
than them till the observation of facts authenticatio n the misuse in required for a solution

ECMS consists of the rights of the data and authorization function. Preferably the least
conclusive kind of content, it provides content linking automatically, therefore, permitting the
owner to clarify his rights and acquire the content in one set of transaction. There are several
working ECMS operating in today's world although the field is bit new. The report was being
concluded in the year 1996 that the mechanism is still emerging. The Pronouncement of the
electronic copyright management system is being used in large because of the blunt, least
expensive of polishing of copying substance in instrument comprehensive form of changing
print materials into electronic forms. No, the country as of now has the proper
implementation of a system but in a short time preferably have the back in of law in the USA.

DIGITAL MILLENIUM COPYRIGHT ACT

In the USA for the safeguarding of authors right, it was first mentioned in the report of the
working committee on intellectual property rights. It is a constitutionally authorized by the
United States of Congress, in the year 1998 October that brought massive changes to the
copyright act. This development was obligatory to initiate in confession with the World
Intellectual Property Organization. The digitalization nourished the little protection of the
property right through the help of Technologies. The DMCA is a 5 subject or called as

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section, the title that has the most immediate effect on India is online service providers that
comprise to limit the legal obligation with legal liabilities.

The copyright holder has an option to select to conveyed complaints through the OSP for the
need of action or notice to the infringer pleading not sufficient amount of knowledge about
copyright infringement proceeding. It is the users' duty to have knowledge about copyright
infringement laws for which IU encourages the user to educate themselves.

The Digital Millennium copyright act was signed by President Clinton on the year 1998. The
UN General States the grant of license to the party to provide sufficient and appropriate legal
protection and legal remedies against copyright infringement. The technological medium that
is being utilized by the creators in connection with the rights under the Berne Convention.
The development of copyright has a connection with technological development. Standing
with technological development made the protection of copyright more complicated.

ANALOGY OF ECMS AND DMCA

It becomes comprehensible from the position taken in both of the ads, which protects the
rights of the owner or author for creative work over the internet. It grants the user to have
access to the public domain after the required payment. It influenced people to come forward
and register their work. The impact of technological access is advantages but on the other
hand, we cannot really presume to what extent the creator may lose.

Save cutting the works through electronic medium says that the options work are protected
under the DMCA section 5 12(a)

Rapid development has effectively open of roots for copyright infringement and the necessity
for an effective legal instrument to constraint such

CONCLUSION

Therefore, both the US and EU have adhered to similar standards regarding the questions of
Acess and pay-per-view business type. It has been made pretty clear by that circumvention of
access controls is prohibited under the DMCA. Although the EU is making attempts in
allowing the circumvention of controls, which can only be applied one time, the works gain
lawful access. In both the EU and US, that the accessibility of the public domain and its price,
is made according to the demand of the market forces.

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Intellectual Property Protection, has never been a more controversial matter than in the recent
past 10 years passage, the DMCA with its far-reaching impact that supports the attempt s of
copyright holders to control access to and subsequent use of their content has been a
controversial act. Allegedly the jeopardization of the doctrine of "fair use" has never been so,
much as it is now, so much so that ever scientific study and research holds no water under
fair use defense. According to the interpretation of the court this law that fair use is not a
defense as witnessed in the case of Felten v. RIAA, therefore the academic freedom being
supposedly in peril certain doubts and uncertainties, still have clouded doubts and
uncertainties, still have clouded the minds of many users of member state that if without any
sort of changes, the EU directive is applied in law, Europe might have to deal with its own
versions of Dmitri Skylar's prosecution. A threat prevails access might be denied by such
measure to all having apart those who willingly pay and o particular terms and conditions
applied unilaterally by the copyright owners. Technology protection measures, typically in
standard and non-negotiable form, used in conjunction with contracts or together with
Electronic Copyright Management System to control access and impose other terms and
conditions, may have consequences such as enabling right holders to exert a greater degree of
control over their works that is statutorily permitted. The expansion of the scope of the rights
controlled by the copyright owner and improvising or overriding the legitimate access to
work as provided by the law is one of the possible effects of it.

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NON REFOULEMENT CONVENTION AND JUS COGENS: THE PATH TO

PROTECT REFUGEES AMIDST CORONA

**NEHAL MISRA & SHIVANSHI GUPTA 1

INTRODUCTION-

“The world will not be destroyed by those who do evil, but by those who watch them
without doing anything.”

-Albert Einstein

As our world has witnessed the grave horrors of the pandemic, it is now time for us to rethink
the major faults that were observed by the various countries. Pandemic is a large scale disease
that covers a large geographical area and the disease ca uses great disruption in social,
economic and political aspects of the world. COVID 19 is an infectious disease which is
caused by a new strain of the virus. The disease causes respiratory illness and is spread by the
contact of an infected person through sneeze and cough.

In a situation where the world fights such a deadly disease, a very crucial aspect is left out of
the consideration, which is of the rights of the refugees during the pandemic. This article
shall mention the human rights violation that has occurred during the pandemic of refuges
and observe the importance of ensuring the right of the refugees not only on the humanitarian
grounds but also to curb the disease.

The article shall also cover the present guidelines on the refugees during the pandemic, a case
study of 4 countries to portray the deplorable treatment of the refugees by the host countries.
The article shall also cover the importance that why the refugees should have the rights and
also provide the solutions to this problem in the best interest of the refugees as well as the
entire world at large.

1. PRESENT GUIDELINES OF UITED NATIONS FOR MIGRANTS-

A pandemic is a worldwide epidemic caused by a novel virus that affects most or all age
groups within a period of months. 2 A country has a grave effect on the pandemic leading to

1
STUDENTS , (INSTITUTE OF LAW, NIRMA UNIVERSITY)

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thousands of deaths of its citizens. In such a scenario, one of the most important segments of
people that are excluded from the healthcare facilities as well as the basic amenities are the
refugees and migrants residing in a country. A refugee is a person who is outside of his or her
country of nationality or habitual residence. 3 This paper shall mention the need for an
International Convention which should have a binding effect on the nations in order to
provide healthcare facilities to refugees and include them in the nation. The paper sets forth
various case studies, which shall proof the need for an international convention in the times
of pandemic pertaining to the rights of the refugees.

WHO has laid down practical field-based guidelines for humanitarian agencies in the
countries in the year 2008 known as Pandemic Influenza preparedness and mitigation in
refugee and displaces populations. 4 This document provides the strategies and to deal with the
pandemic according to its phase and the activities which should be undertaken during the
pandemic period. 5

The guidelines laid down in this document mainly focus on the mitigation pandemic in the
local areas. It mentions the 6 phases of the pandemic and specifies the activities which need
to be undertaken in each phase to curb the spread of the disease. 6 Due to the generalized
nature of the document, it leaves out to capture the essence of refugees in the pandemic and
how they are excluded from the country's support of the healthcare facilities.

The present set of guidelines does not prove to be successful owing to two main reasons.
Firstly, they do not have a binding effect on any institution, the fact that such guidelines
merely exist is of no use in the current situation of COVID19 pandemic. And secondly,
countries don’t consider taking care of the refugees as they are usually blamed for the
transmission of the disease in their country. Being stateless, refugees are not provided with
the basic amenities in the times of crisis which is not only human rights violation but it also
poses a grave danger for further increase in the rate of the pandemic.

2
Pandemic Influenza preparedness and mitigation in refugee and displaces populations, WORLD HEA LTH
ORGANISATION (May 2008),
https://www.who.int/csr/resources/publications/swineflu/pandemic_preparedness_refugee/en/ .
3
An overview of U.S. Refugee law and policy, AMERICAN IMMIGRATION COUNCIL, (Jan
2020), https://www.american immigrat ioncouncil.org/research/overview-us-refugee-law-and-policy.
4
supra note 1.
5
Id.
6
Gu idelines for pandemic influenza preparedness among refugees and other populations of concern to UNHCR,
THE UN REFUGEE A GENCY (January 2006),https://www.unhcr.org/protection/health/45460fb 24/unhcr-
guidelines-pandemic -influenza -preparedness-among-refugees-other-populations.html.

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There is a severe risk associated when it comes to refugees owing to multiple factors such as
malnutrition, the prevalence of communicable diseases, overcrowding in camps, etc. which
makes it essential to control the spread of the pandemic disease among them as it spreads at a
very increasing rate. 7 This marks the importance of an International Convention which can
ensure that refugees and migrants are not excluded from the nation’s pandemic preparedness
plan and other activities by the government as well as other humanitarian agencies.

2. CASE STUDY-
The following are the case studies in light of the treatment of migrants by various countries in
situation of pandemic disease of COVID-19.
 Cyprus-
In a situation where mankind is threatened and humans are struggling to survive, the existing
condition of migrants has worsened. It has been reported that nearly 200 Syrian asylum
seekers were stranded near the northern Cyprus 8 . The Cyprus government and the authorities
pushed back the asylum seekers into the middle of the COVID-19 situation. They “have
become the latest victims of multiplying border shutdown as countries grapple with the
advance of coronavirus.”9 The borders of Cyprus has been shut down, creating problems for
the asylum seekers left stranded in the sea without any refuge. The resistance is be cause these
migrants are being recognized as potential carriers of the virus and increased liability for the
government.

 Greece-
The Prime Minister of Greece, Kyriakos Mitsotakis, stated that Greece would tighten the
security at the borders 10 . This rigorous step is being undertaken to restrict the entry of
migrants in light of the present situation- COVID-19. “The looming threat of coronavirus
overlays hostile landscape in Greece for migrants and asylum seekers” 11 . The camps on

7
supra note 1.
8
Andrew Connelly, Cyprus pushes Syrian refugees back at sea due to coronavirus, ALJAZEERA (Mar.30,
2020),https://www.aljazeera.co m/news/2020/03/cyprus -pushes-syrian-refugees-sea-due-coronavirus-
200330091614066.ht ml.
9
Id.
10
Bouli Hadjioannou, As coronavirus takes hold, Greece worries about migrant camps, IN-CYPRUS (Feb.27,
2020),https://in-cyprus.philenews.com/as-coronavirus-takes-hold-greece-worries-about-migrant-camps/.
11
Sarah Souli, Greek island refugee camps face coronavirus ‘disa ster’, aid groups warn, THE NEW
HUMANITA RIAN (Mar.27, 2020), https://www.thenewhuman itarian.o rg/news/2020/03/27/greece-island-
refugee-camps-coronavirus.

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Lesbos are already overcrowded and operating above their capacity 12 . Thus, while the
migrants on the other side of the border are being refused entry, the condition of the existing
camps of migrants has degraded. The authorities have failed in their attempt to manage and
tackle the situation at the migration camps. In Moria, due to the failure of the state machinery
to provide basic amenities to the migrants for protection from COVID-19, migrants with the
help of Team Humanity have begun sewing their facemasks.

 United Kingdom-
The situation of the UK has deteriorated further concerning COVID-19. The government, the
royal house, and the common folks are under the captive of COVID-19. With the increasing
number of cases of the virus and the failure of the government to control the same, the
situation of migrants is unimaginable. Around 2,100 refugees in Calais and Dunkirk are
facing an imminent threat to coronavirus due to the lockdown by French authorities, hence, it
is predicted that they will try to reach the UK 13 . The increasing migrant entries and lockdown
in the UK has created problems for the migrants to migrate to the UK for their protection.
The migrant’s existence and well-being are at stake, and even UK has surrendered its support
towards them.

 United States Of America-

While Portugal is treating migrants as its residents 14 and helping them in the hour of need,
other countries have seemed to be hesitant in adopting this methodology. To control the
increasing cases of COVID-19 in America, the asylum seekers from Central America have
been forcibly returned from the US to Mexico 15 . It is being contended that America is using
COVID-19 to escape its obligations towards the migrants and refugees. The migrants are
being forced to return to Mexico and live in overcrowded tents, which poses threat towards
the exposure to the pandemic disease to not only the migrants but also the country to which

12
Mark Armstrong, Migrants arriving in Greece say they have no protection against coronavirus, EURONEWS
(Mar.28, 2020), https://www.euronews.com/2020/ 03/ 28/ migrants -arriving-in-greece-say-they-have-no-
protection-against-coronavirus.
13
Diane Taylo r, Calais refugees aim to reach UK to escape coronavirus lockdown, GUARDIA N (Mar.29,
2020), https://www.theguardian.co m/world/2020/ mar/ 29/calais -refugees-uk-bid-to-escape-coronavirus-
lockdown.
14
Id.
15
US must include Asylum Seekers in Covid-19 response, rather than shut border, MEDICINS SANS
FRONTIERES (Mar.27, 2020), https://www.msf.org/us-must-include-asylum-seekers-covid-19-response.

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they have migrated. Hence, the situation of forced transfer of migrants poses a great threat to
the transmission of this disease as well as a humanitarian crisis.

3. IMPORTANTANCE OF PROTECTION OF MIGRANTS & REFUGEES?

 Human Rights-

Protecting refugees is a core mandate of UNHCR. Refugees being unprotected by their native
country, seek protection in the country of refuge. International law has recognized the rights
of the refugee which extend to Right to sanitation, healthcare, safe asylum, etc. In the times
of pandemic, it becomes very essential for the government of the nation to provide refugees
with basic human rights. Providing basic human rights not only ensures obligating the
international rules and guidelines but also it helps in curbing the disease during the Pandemic.
As we have already dealt with the various case studies, which establish that the governments
of the country have a laid back approach when it comes to providing basic rights to the
refugees. This stands in clear violation of human rights.

The right to medical facilities is quintessential in times of pandemic. The government should
ensure that there are enough trained staff and equipment during the outbreak which should be
made available to the refugees even in the remote locations of the camps. Refugees have the
right to sanitation as unhygienic surroundings prompts the transmission of disease at a faster
rate. Refugees should have a clean environment in their camps. The right to access
information should also be available with refugees, in such grave circumstances there is a
very high possibility of spreading misinformation and superstitions at the speed of light.

Thus, it is the duty of the government to provide refugees with accurate information
regarding the pandemic. Information should also be multi- lingual, available in sign language,
telephonic services, etc. for a wider reach of the information. When the pandemic attacks a
particular segment of women, children or old aged people, the government should take
measures to reduce the gendered impact as well as ensure medical services dedicated
especially towards the most affected section of the society. Analyzing various rights above, it
is of prime importance that human rights enshrined in the International la w should be made
available to refugees in the times of pandemic on the humanitarian grounds.

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 Transmission of disease-

Increasing cases of COVID-19 and incapability to control the situation forecast the
impending doom of the world. COVID-19 has gained the status of pandemic disease as
declared by the World Health Organization. The entire world is in grievous peril. At this
juncture, where the world needs to stand together, nations are struggling for their existence.
However, survival cannot be based on selfishness. The governments of the states are
persistently attempting to save the lives of its citizens, while a few communities are being
deprived of the chance of survival. Migrants, refuge’s communities are facing discrimination
because of their incapacity to acquire citizenship. Though, citizenship is one of the major
attributes, easy transmission of the disease is a vital aspect as well.

Earlier, diseases such as Cholera, Chickenpox, Ebola, etc. emerged and posed a great threat
to the humankind. However, these diseases were tackled and their extent was controlled.
These diseases pose a major threat due to the ‘easy transmissibility/ communication’ factor.
Due to this factor, there has been chaos across the world as the COVID-19 virus can transmit
from one person to another. The states are taking precautionary measures to control the extent
of the virus in their countries, however, exclusion of migrants from the protection &
treatment of viruses on the pretext of securing its citizens seems uncanny.

These migrants and refugees reside on the outskirts, where they are the most vulnerable to be
infected with the virus. Hence, it is the responsibility of the state to protect these migrants
from this situation. It is not only essential for the government to provide them assistance from
the humanitarian perspective but also that they are potential magnet & carriers of the virus.
When exposed to these transferrable diseases (migrants), it can easily be transmitted to the
citizens of the country. Hence, tackling this problem with due diligence will help in
controlling the extent of this disease.

4. RECOMMENDATIONS FOR THE FUTURE-

a. Inte rnational Convention- International convention is an agreement between

different countries that is legally binding to the states that are
contracting. 16 Convention is only binding when the state is not only a signatory as well

16
Frequently Asked questions regarding the convention on the rights of the persons with disabilities, UNITED
NATIONS ENABLE, (April 2, 2020, 1: 12 PM ) https://www.un.org/esa/socdev/enable/convinfofaq.htm.

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as it has ratified the convention. Being a mere signatory of the convention portrays the
support for the cause of the convention but not poses any liability on the state if they
violate any provision of the said convention. International Convention is used
interchangeably with Treaty and Covenant as well. The process of implementation of
the convention depends on the municipal laws of the country and its commitment
towards the convention. 17

 Difference between Convention, Declaration and Protocol- These terms are used
interchangeably by a layman in day to day life, but they all have different meanings
18
and usages. A protocol is a document that complements and adds to a treaty. It is an
additional legal instrument which is optional in nature to which states must
independently ratify or accede to it. A declaration, on the other hand, is a document
that is signed by the states mentioning the standards agreed upon by the nat ions 19 .
Declaration not being a legally binding document has no liability on the state which
breaches the provisions of the declaration and it only carries moral obligations.
Whereas a convention as discussed above is a formal agreement between the states
which is legally binding and is open for other nations to participate as well.

 Supremacy of International Convention over others sources-International

convention is stronger than declaration as it has a legally binding effect on the parties,
whereas the declaration does not have a binding effect. 20 . A protocol, on the other
hand, comes at a later stage, it happens when the convention or treaty has already
been signed and ratified by the nations. Thus the most appropriate method is that of
the International Convention in the present case, as in the case of a pandemic,
refugees are denied basic amenities and there is gross human rights violation which
was witnessed in many countries during the COVID-19 pandemic. International
convention by various nations shall prove to be a sound mode that can ensure the
protection of rights of the refugee in times of pandemic. Once the general assembly
adopts the convention the states can ratify it. When the United Nation General

17
Id.
18
Introduction to the convention o the rights of the child, UNICEF, (April 2, 2020, 6:00
PM) https://www.unicef.org/french/crc/files/Definitions.pdf.
19
Nancy Flowers, A human Rights Glossary, HUMAN RIGHTS HERE A ND NOW (April 3, 2020, 9:15
AM) http://hrlibrary.u mn .edu/edumat/hreduseries/hereandnow/Part-5/ 6_glossary.htm.
20
Id.

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Assembly adopts a convention it tends to create an international norm and standards

which are looked up by other nations.

 Our Proposal – The solution to the problem that we have witnessed in the paper is an
Inte rnational Convention on Refugees in a pande mic. The object of such
convention shall be to protect and ensure the human rights of the refugees in the times
of pandemic. The United Nations promotes the protection of refugees for which,
WHO has also issued guidelines, thus in the light of the guidelines and to make them
legally binding for the states, the convention shall prove to be a feasible option. The
two important aspects of the Convention are – First, The country should treat the
refugees as their residents during the pandemic. Second – The host country should
Finance the basic amenities of the refugees.

Firstly-Being a resident of a country gives rise to certain rights. A major difference

between rights of citizenship and residents lies in the fact that citizenship is the
complete legal relationship of a person with the country where a resident is when you
are considered as a foreigner but one can work and live there indefinitely. Universal
Declaration of Human Rights (UDHR) has also recognized the human rights of a non-
citizen in Article 5 to 10 and ensured that they should be given the same treatment as
the citizens of their country concerning the right to life, right to safe and healthy
working conditions and right to healthcare. 21 Thus, incorporating the same guidelines
in our convention, the host country must ensure that rights such as sanitation, clean
surrounding, and access to medical facilities, accurate information are provided to the
refugees during the pandemic.

Secondly- The country in which people have taken refuge shall fund the basic
amenities, medical equipment, and healthcare services to the refugees in the time of
the pandemic. If the host country is facing financial constraints the United Nations
shall fund the refugee camps in the country and ensure that healthcare services are
accessible to them.

21
Rubrick Biegon, The rights of Non- Citizens, HUMAN RIGHTS LIBRARY (April 3, 2020, 3:15
PM) http://hrlib rary.u mn.edu/edumat/studyguides/noncitizens.html.

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 Breach of Convention- In a case where a country violates any provision of the

convention, the country is liable towards other states and it has to make full
reparations for the injury suffered by the breach of the convention including both
material loss as well as moral damages. International Court of Justice (ICJ) being the
principal organ of the UN is the main body that settles the dispute among the states in
accordance with the International law. 22 If a state fails to ensure the right to healthcare
services to refugees the rate of the transmission of the pandemic shall rise which shall
not only affect the citizens of the host country but it can spread to other states as well
if people are infected travel cross borders. Thus, the host country has to pay reparation
for the loss suffered as they are accountable for in the case where they fail to protect
the rights of the refugees in the pandemic.

 Shortcomings- Convention is a legally binding contract. It functions as a document

that compels the parties committed to the convention to respect, protect and fulfill the
rights as per it. However, for a convention to have a legally binding effect, the parties
must ratify it. Merely being a signatory to the convention doesn’t create an obligation
on the parties. Moreover, the parties to the convention also have an option of
reservation of any clause. Thus, these aspects are shortcomings of the convention
when there is a need to create a universal obligation without parity.

This hitch in the implementation of the convention and the current situation of the
migrants; both these factors imply the importance of International Law to be
mandatory to all the nations without any hassle of ratification. Hence, now we will
focus on the need to recognize non-refoulement as jus cogens in times of situation
when the world is at stake.

b. JUS COGENS & NON-REFOULEMENT- In the 69th session, the International

Law Commission changed Jus cogens with peremptory norms of general
international law. Jus Cogens as per literal sense means compelling law. It is a source
of international law and is mentioned in Article 53 of the 1969 Vienna Convention.
According to article 53 treaties if in violation with the peremptory norms (jus cogens)
will be void. Merriam Webster dictionary, describes peremptory norms as the

22
Upholding International Law, UNITED NATIONS (April 2, 2020, 10:25
AM), https://www.un.org/en/sections/what-we-do/uphold-international-law/.

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principles of law that are universal and superior. They reflect the fundamental
guidelines of the international community. Jus Cogens reflect those values which
cannot be contracted because of the ethics it upholds. It bans torture, genocide,
enslaving and other practices that are derogatory to the fundamental principles.

Non-refoulement is the principles that protect the refugees. Merriam Webster

dictionary, defines it as a refugee or an asylum seeker, has the right to freedom from
expulsion from any territory; the country where the refugees take refuge, that country
cannot compel them to return to their origin country. It emphasizes that the life of
these refugees and asylum seekers are not threatened due to their race, religion,
nationality, or opinion.

A principle is recognized as jus cogens if it is internationally acceptable and is a norm

that prevents derogation. The norm preventing refoulement is a customary practice,
irrespective of being a party to the 1951 convention. However, the status of non-
refoulement as jus cogens is still uncertain 23 . The emphasis of incorporating it as jus
cogens is due to the overriding effect. The norm of non-refoulement is the “heart of
international protection of refugees yet remains lack of consensus to its status” 24 .
Thus, endeavors to include this principle as jus cogens have escalated due to the
recent outbreak of COVID-19. These kinds of situations (pandemic diseases)
highlight the vulnerability of these migrants groups and accentuate the necessity of
their protection by all the states irrespective of the origin of migrants.

As discussed in the case studies, countries such as Cyprus, USA, Greece, and the UK
are reluctant in accommodating and helping migrants in this need of the hour. The
main purpose and the objective of the article is to highlight the urgency and method of
assisting the refugees and migrants. This issue is prominent as the present stance of
various countries are against them. Thus, convention and incorporating principle as
jus cogens is an attempt towards the ambitious dream of treating migrants as the
residents of the country and rendering them sanitation as well as healthcare facilities.
23
Jean Allain, The jus cogens Nature of non refoulement ,13 IJRL, 533, 533-538(2001),
https://www.researchgate.net/publication/31412200_The_jus_cogens_Nature_of_non -
refoulement?enrichId=rgreq-87edbd410348bc3efb5a7538c6dd1ca1-
XXX&enrichSource=Y292ZXJQYWdlOzM xNDEyM jAwO0FTOjM zM zQyM zYxODA 4NDg2NUA xNDU2N
TA1NzkzNjM4&el=1_ x_2&_esc=publicationCoverPdf.
24
Cathryn Costello & M ichelle Foster, Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to
the Test, 46 NYIL, 273, 273-327(2016), https://link.springer.co m/chapter/10.1007/978-94-6265-114-2_10.

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5. CONCLUSION-

Recently, 60,115 deaths have been confirmed due to coronavirus (COVID-19). This virus has
struck all the nations and has been declared as a pandemic disease by the World Health
Organization. This situation is novel and has been difficult for all the nations to manage.
These instances reflect the need to protect the human race from extinction. In these scenarios,
the lives of each individual are kept at the same pedestal without any prejudice of race,
nationality, religion.

In respect to the ongoing situation, the governments of the states are eagerly taking measures
to ensure the safety and treatment of their citizens. However, the refugees and the migrant’s
community are being neglected. The priority of the states needs to change and should be
inclusive of this community. The urgency to include this community has been previously
discussed in the article.

The objective of the paper is to reflect the need of treating the refugees & migrants as
residents by creating an obligation of the same. It has been proposed that a convention should
be ratified by all the countries to treat migrants in a situation like a pandemic disease to treat
them as residents. Thus, by acquiring the status of residents, the migrant community will
have the same accessibility to healthcare and sanitation facilities. This community will not be
left neglected due to the absence of recognition by a state authority.

The necessity of a convention of this specific nature is raised due to the failure of the existing
human rights convention. However, the concerns regarding the shortcomings of conventions
have also been highlighted. Thus, to overcome this hurdle, treatment of non-refoulement
as jus cogens in cases of pandemic diseases has been raised.

Though it seems like a far- fetched dream, the prominence of regarding this principle as jus
cogens can be emphasized with the help of case studies discussed in the article. Jus cogens
fulfills the purpose due to its overriding effect over treaties and mandatory nature. Hence, the
treatment of non-refoulement as jus cogens will help in ensuring the protection of the human
rights of the migrants and refugees in cases of the situation of pandemic diseases.

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PRISON LIFE MATTERS: HUMANIZING THE JAILS

**SWATI BUNDWAL 1 & APARNA SRIDHARAN 2

INTRODUCTION

In prison, those things withheld from and denied to the prisoner become precisely what
he wants most of all. - Eldridge Cleaver

The procedure established by law does not allow torturing a person, be it a criminal or not.
Eradicating crime is not the same as mistreating prisoners. The prevailing prison system in
our country is a flawed one. Inadequate basic human amenities, derogation of human rights,
poor living conditions, this is the plight of prisoners in our Indian jails. The dark dingy cells
represent how we have failed to progress and be independent, despite attaining independence
from colonial rule.

Most importantly it takes away from him the; right of self-determination and he is at the
mercy of prison officials, who regulate the minutest details of his life. State is under a
constitutional obligation to organise prison system in such a manner that the imprisonment
does not result in further degeneration of a prisoner. It is clearly established that a court
sentence does not deprive the prisoner of his fundamental rights. He retains all his rights
except those which are inconsistent with his incarceration. ( prison can function as a
correctional institution, bringing about the reformation and rehabilitation of the offender by
honouring his basic human dignity Thus, the prison system should aim at ensuring the return
of an offender to society as not only willing but also able to lead a well-adjusted and self-
supporting life. In this regard, the humanisation of prisons assumes a greater significance.
Humanisation of prisons is a system, which seeks to protect the basic human dignity of every
prisoner. Further it aims to create humane conditions in a prison and secures social re-
education of the prisoner for the purpose of realigning and re-organising his life for smooth
resettlement in society. Humanisation emphasises that the prison should be a centre of
correctional treatment, where major emphasis shall be given on the re-education and
reformation of offender. The impact of institutional environment and treatment shall aim at

1
B.A. LLB. 5th year, Bharati Vidyapeeth, New Law College, Pune
2
B.B.A LLB. 4th year, Bharati Vidyapeeth, New Law College, Pune

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producing constructive changes in the offender, as would be having profound and lasting
effect on his habits, attitudes, approaches and on his total value schemes of life.
Unfortunately, realities in Indian prisons, as reported by the All India Committee on Jail
Reforms (1980-83) present a totally unsatisfactory picture. According to the Committee most
of the prisons are overcrowded and majority of persons lodged in prisons consisted of people
belonging to the under privileged sections of the society. A large number of persons coming
to prisons consist of first offenders involved in technical or minor violations of law. More
than half of the total prison population in the country consists of inmates waiting or standing
trials or who have failed to furnish necessary security to secure bail, due to their poverty.6
The Committee was shocked to find all categories of inmates being huddled together in most
of the prisons. Young offenders were confined in prisons with adults and were exposed to the
degenerative impact of prison atmospheres. 3

The institution of prison visitors has become almost defunct in most of the states and union
territories. Recently, the National Human Rights Commission has come out with similar
observations. The Commission has noted the increase in the number of custodial deaths. The
absence of human rights orientation in prison officials. Thus, it could be summed up in the
words of the Committee of 1980-83 that ‘the existing prison organisation in the country is in
disarray’ and 'does not conform to the required standards of a correctional department’.

The three links that form the chain of prison system are the prison laws, the judiciary
and the prison administration. The Indian prison laws are archaic and there is no
uniformity in them in various states. The judiciary at times finds itself helpless in the
absence of 'executive sword, and the prison personnel lack human rights orientation.
For achieving an effective humanisation of prisons each link in the chain needs to
re moulded, reoriented on the basis of humanistic values.

3
Basant Rath, WHY WE NEED TO TALK ABOUT THE CONDITION OF INDIA ' S PRISONS THE WIRE (2017),
https://thewire.in/uncategorised/india-prison-conditions

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HISTORY 4

Since the ages till now we evolved our punishment techniques. From retributive lex talionis
to imprisonments. Earlier it used to be either confinement till death, death or monetary
compensation or brutal punishments like mutilation etc. but with time impr isonment was
thought as a better option to reform a criminal rather than just killing him. Reformation of the
offender was regarded as an aim of the prison sentence. Rehabilitation was thought of as the
main objective of the imprisonment, and now when these heavy words like imprisonment,
reformation, rehabilitation etc. were used they were meant to introduce some human factors
inside jails to make a criminal deviate from his path of crime to path of public good, but what
we have done is just took in the words and punishments but no human treatment is still
provided in many of the infamous jails where there is less, controllable or no surveillance.

 And for stopping this inhuman treatment and providing humanised environment
starting from a very grass root level we need to maintain an inter-departmental
interaction with good tracking and records.
 Education is the biggest teacher for good and bad if especially criminal minds are
seen. Education can help in covering up for not less than 50-60 % of crimes. We need
to provide linkage between education standard and criminality.
 To deflect prisoners from deviant paths their hobbies, and minds need to be engaged
in productive activities and enhancing their self-confidence towards a thinking which
makes them feel they can live an organised life too. Corrective actions are needed to
be taught.

In India the year 1835 marks the beginning of prison reforms. In that year Lord Macaulay
arrived in India as a Member of the Indian Law Commission He drew the attention of the
Government of India to the terrible conditions in the Indian Jails. The Government of
India passed the prisons Act, 1894 which is the existing law governing management and
administration of prisons in India. The Britishers had found it efficacious for the
achievement of their political ends to run prisons according to the provisions of this Act.

4
Prisons in India: An overview of reforms and current situation,
http://home.rajasthan.gov.in/content/dam/pdf/StaffCorner/Training-Material/Useful-Presentations-And-
Videos/Overview%20of%20prisons%20in%20India.pdf

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DESCRIPTION OF PRISON

The Lawyers Collective in Bombay, which has been permitted to visit lock- ups and prisons
under court order, has provided this description:

The lock- up is a bare room with no piece of furniture at all, usually divided into two parts, the
living area and the toilet area, separated from each other by a one foot divider. It is almost
always a very poorly ventilated room with usually only one small window built close to the
ceiling. There is never a fan in the cell. The lock- up is also poorly lit, usually by just one bulb
for the whole room, which is never switched off. In lock-ups in the urban areas, the urinal
area is usually enclosed, but without a door. There is normally no commode -- just a pot in a
corner which is cleaned out occasionally. The water supply is unpredictable and intermittent
at best. The stench is unbearable and flies abound. The undertrial is not provided with a
change of clothes nor with soap, oil or toothpaste. No mats are provided for sleeping nor are
coverlets supplied. The lock-ups are inevitably overcrowded, especially at night. From the
uniformity in their filthy and overcrowded conditions, and in the brutal, dehumanizing
treatment meted out by the police to their occupants, it seems lock-ups are specially built to
oppress detenues and make their stay a type of deterrent to crime.

To improve the prison conditions what does not mean that prison life should be made soft; it
means that it should be made human and sensible for prisoners. Nobody wants to be punished
or go to prison. A prisoner is already deprived of so many civil, political liberties, that
shouldn’t disable their basic human rights.

PROBLEMS 5 ,

 OVERCROWDING

The word Overcrowding of prisons denotes when prison population goes beyond it’s normal
capacity of accommodation.

Overcrowding in the prisons is a human right issue which is not taken seriously. It results
in worsening of the general living conditions of the prisoners. Prison officers find it difficult
to initiate and continue reformative measures as this overcrowding creates interferences in the

5
Vivek Bhatnagar, SUPREME COURT ISSUES D IRECTIONS TO PREVENT, COMPENSATE FOR UNNATURAL DEATH OF PRISONERS THE
WIRE (2017), https://thewire.in/law/supreme-court-issues-directions-to-prevent-compensate-for-unnatural-death-of-
prisoners

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correctional process. Hussainara Khatoon (I) v. Home Secretary, State of Bihar 6 . In this case,
Justice Bhagwati directed the release of many undertrial prisoners in Bihar jails who had
already served longer periods than if they had been convicted for the crimes with which they
had been charged

 TORTURE

What remains largely unseen is how, beneath a misleading veneer of due process and legal
protocol, thousands of death row inmates are often subject to conditions that constitute
torture, sometimes for decades on end, while waiting to be executed or exonerated. These
conditions, as much as the death penalty itself, constitute violations of established
international human rights law as well as the constitutional right against cruel a nd unusual
punishment.

Death rows leaves prisoners in the most dehumanising conditions possible to waiting for
court appeals to go through. Prisoners on death row in India are living in inhumane
conditions, facing unfair trials and horrific acts of police torture, according to a new
study released.

Mental health is flagged as a serious and under-researched issue in prisons, with many facing
violence and humiliation from fellow inmates. More than 100 prisoners spoke about sleep
deprivation, many saying they could not sleep for more than three or four hours a night
because of the uncertainty of their fate.

The use of torture is ubiquitous, the report said. Inmates spoke about being hung by wires,
being forced to drink urine, being placed on a slab of ice and having a leg broken, forced anal
penetration, and extreme stretching. Some gave specific details – being tied in a sack of
chillies and beaten with the butts of police guns. Others left it vague, simply saying
“unexplainable things” had been done to them.

6
AIR 1979 SC 1360

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 RELATING TO WOMEN

Because of the stigma that an Indian woman suffers if she has been raped, the authorities
apparently fear that the victim will not show up in court to testify against her rapist.
Accordingly, she is imprisoned to make certain that she is available to testify at trial. While
not seemingly designed to punish the victims, this is the effect of confinement in protective
custody, which may last for two, three or four years. Moreover, though it may make a
particular victim available to testify in court against her alleged rapist, the imprisonment of
rape victims can hardly be expected to enhance the willingness of rape victims generally to
come forward to accuse their rapists. So far as the conditions of confinement are concerned,
the accounts heard accorded with those described by former Supreme Court Justice V.K.
Krishna Iyer who headed the National Expert Committee on Women Prisoners. After visiting
one prison, he noted that 15 women confined in one cell "had no amenities -- clothing, work,
education or even medical examination. There were no beds, bedsheets or pillows, just a cane
mat."

 CUSTODIAL DEATH

The case law indicates that over the last several decades this Court and almost every High
Court has relied on Article 21 of the Constitution and thought it appropriate to compensate
the next of kin for an unnatural custodial death. The constitutional courts can go on delivering
judgment after judgment on this issue and award compensation, but unless the State realizes
that custodial death is itself a crime and monetary compensation is not necessarily the only
appropriate relief that can be granted to the next of kin of the deceased, such unnatural deaths
will continue unabated. Therefore, what is needed is a review of all prisons with a
humanitarian nuance. As, a civil remedy can never be justifiable for a criminal wrong.

No constitutional window dressing can legitimize state sponsored murder or the system that
justifies it.

Kewal Pati v. State of Bihar, in this case the kin of the person who died in custody was
merely compensated in monetary terms. This outlook needs to change. Legal murder is no
justice.

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SOLUTION

In India, legal aid for those who cannot afford to avail counsel is available at trial, but that
does not happen, not at least, in practice. Since the majority of all prisoners in India, those
confined in the prisons as well as those held in police lock-ups have not been tried, the
absence of legal aid until the point of trial reduces greatly the value of the country's s ystem of
legal representation of the poor. Lawyers are not available to assist most prisoners at the point
when many of them require such assistance. The use of modern techniques such as video
conferencing should be emphasized at basic level of trials, as it will be time saving, energy
saving and cost friendly also. As per the prevailing practices a lot of money, time and
manpower is being wasted in escorting the prisoners from prisons to the courts. The courts
should consider granting the bails to the petty offenders/ first timers especially during the
trials. As this will be stopping the exposure of petty offenders to the grave offenders in
prisons and will also bring down the overcrowding of the prisons. The speedy trials shall also
be encouraged to provide speedy justice and which will save the prisons space for deserving
culprits.

The practice of holding monthly meetings between the judiciary police prosecution and
prisons departments should be encouraged and mandatory on district level. The provision
should be made for setting up wing of mobile courts in the prisons which may be helpful in
speedy dispersal of bails and trials in petty cases. The basic cooperation between the police
and prisons department needs to be improved and an atmosphere of accountability and inter
faith requires improvement at the earliest.

The number of employees with the prison department should be increased. if major
recruitments are made in the ranks of constables, warders, head warders, security etc. it is a
big cause of overwork load, mismanagement and also threatening the ratio of inmates and
administrators i.e the ratio of prisoners and prison staff. There is a huge shortage of
employees on the lower ranks of prisons department. It is due to these circumstances that
there are riots and gang wars in prisons almost every day. It can be disastrous and no wonder
why there is increase in the drug abuse and easy access to the dangerous weapons even in the
prisons. The department should immediately recruit regular employees who should be
accountable for their duty on lower ranks.

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The infrastructure in the prisons should be modernized and the staff should be trained
accordingly and be literate as per the changing technology. The prison department has been
found to be even lacking in transport facilities due to which for every transport of prisoners or
otherwise the prison department has to look to the police department at every such
requirement. The infrastructure of the prisons department needs to have a big facelift and it
should not be treated as a neglected wing of criminal justice administration. The supreme
court even suggested the concept of ‘open prisons’, considering poor situation of prisoners.
Semi-open prisons or open prisons lets the convicts to work outside the jail premises and earn
a livelihood and return in the evening.

The concept was brought in to inculcate the convicts with the society and reduce their
psychological damage as they faced lack of confidence in leading normal lives outside.

Humanising prison life in India

It is clear that increasing the gravity of punishment doesn’t help in controlling or reducing the
crime as crime rate has increased with time even after all the increase in the intensity of
punishment that has been increased with time.

This continuous repulsion and lack of support for existing attempts to humanise prisoners is
the most inhuman thing that has been prevailing since long back.

One of the ways to reform a criminal or a criminal mind is to use an already acquitted person
who have highly changed and reformed as a good human to help and hit the minds of
prisoners present in the jails by holding certain sessions or interactions on a personal level.
No one can understand a criminal mind better than another criminal. This can be understood
easily by the example of Deepika Padukone who went through depression and is now helping
those who are going through it.

What can help in stabilising or lowering the crimes is the only sole solution o f “humanising
them”, building sensitiveness and humanity inside them. For this they need to be provided
with that kind of environment and treatment as a human. Shifting the focus from “static
institution” (which treats & isolates prisoner, brutal punishments) to the “active humaniser”
(which considers prisoners as humans and uses punishments along with keeping other human
rights in minds).

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 Tihar jail is an exception example for how our country’s law system is providing with
all the reformative measures that a prisoner should get in order to align with the
rehabilitation and reformation. This jail has better humane environment and several
reformative schemes such as:-
 Yoga and meditation
 Societal participation in reformation
 Prisoner’s participation in various sports
 Education both formal and adult with library facility
 Ventilation of grievances
 Vocational classes
 Helping to make their own products and sell, so that they can help their families.

 The official website of Andhra Pradesh Prison Department 7 states that there are
various facilities that the prisoner get like television, radio, newspapers and indoor
games etc. Further septic toilets, clean environment etc. are also been provided along
with certificate courses, diploma programmes etc. by distance learning at government
costs.

 The High Court Calcutta rules that even prisoners are entitled to the right to trade,
occupation and profession guaranteed under article 19(1)(g) of the Indian
Constitution. 8

These are some of the examples where our prison system is upholding human rights, but
is it enough? We need reform in every prison of the country, we need every jail to follow
what these examples have set.

7
Andhra Pradesh Prison Department, available at http://apprisons.gov.in/
8
Soma Saha Sen v. State of West Bengal, W.P. 5455 (W) of 2017, (Calcutta HC) (Unreported)

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CONCLUSION

There are several judgments and pronouncement by different courts for protecting the rights
of prisoners but the practical implications are still not been applied to almost all the
unpopular or other jails which are out of sight from the judicial or official surveillance.
Instead of removing or torturing the prisoner from the society, attention should be paid on
reforming and rehabilitating the person and the environment.

The need for reform is felt because despite there being numerous provisions and legislations,
its execution is not being done. The problem needs to be addressed at the grassroot level, for
which we need to reform the administrative wing of criminal justice.

“If people get sick, we take them to the hos pital and give the m the right medicine to get
better. If people’s behaviour is sick, we bring the m to the prison, but we forget the
medicines.” – Sri Sri Ravi Shankar

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INTELLECTUAL PROPERTY RIGHTS IN RELATION WITH

ENGLISH PREMIER LEAGUE

*TUSHAR KATHERIA 1
Introduction

If you ask from anywhere in the world which is the most difficult or more competitive
football league in this world, it’s definitely be English Premier League. The English or FA
Premier League was first introduced in Feb. 20, 1992 to break away from The Football
League. The decision was made by Greg Dyke 2 by calling top 5 clubs in The Football League
which were Liverpool 3 , Manchester United 4 , Tottenham5 , Everton6 and Arsenal7 without any
backing from The Football Association. On July 17, 1991 the Founder Members Agreement
were signed by the officials of the Premier League and The Football Association to compete
with Italian Serie A and Spanish La Liga after major success in FIFA World Cup 1990 in
which England reached in the Semi-Finals. The first season was started in 1992-938 in which
total 22 clubs played including top 5 clubs of England. The intention was to generate revenue
through broadcast and sponsorship to compete at European level and be part of UEFA
Championship.

It’s been 26 years of English Primer League and the Premier League generated massive
amount which later on realised by the football clubs or franchise and players via
Endorsements deals which includes various ambit of Intellectual Property Rights. We will
discuss all that aspects within this article.

1
Final Year student, Symbiosis Law School, Pune
2
Greg Dyke, Former British media executive, football ad min istrator, journalist and broadcaster.
3
Liverpool FC, Professional Football Club in Liverpool, England, https://www.liverpoolfc.co m/history
4
Manchester United FC, Pro fessional Football Club in Old Traffo rd, Greater Britain, England,
https://ir.manutd.com/co mpany-informat ion/about-manchester-united.aspx
5
Tottenham Hotspur FC, Professional Football Club in London, England,
https://www.tottenhamhotspur.com/the-club/
6
Everton FC, Professional Football Club in Liverpool, England,
https://www.footballhistory.org/club/everton.html
7
Arsenal FC, Professional Football Club in London Borough of Islington, London, England,
https://www.arsenal.com/the-club/the-arsenal-way
8
Andrew Murray, Remembered! The 1992/93 Premier League: a madcap first season, as told by its heroes,
FOURFOURTW O, https://www.fourfourtwo.co m/features/199293-premier-league-first-season-sky-sports-man-
utd-champions [Published in Aug. 6 2019 | Last Visited in Feb. 23 2020]

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Research Methodology

The research done in present article was done by secondary research which include various
research paper, articles, reports, legal cases and online database.

Patent

Usually in Patents players give their feedback for certain products like goalkeeper gloves,
football shoes, shin guard, jerseys and many more., for improving the performance of the
players. Companies like Nike, Adidas, Puma and other notable sports manufacturer, who
invest their money in their Research & Development Programme. The prime example would
be Nike Mercurial Ultra Flyknit Vapor 9 which was launched in 2018 by Former Chelsea’s
winger Eden Hazard (Now, he is in Real Madrid CF). Recently, Nike Inc. patent their
“AERODYNAMIC LACES”10 which enhance the performance of football by the help
English players.

Image Rights

The UK launched the Image Rights compensation scheme 11 during the inception of English
Premier League. It helps the international players to increase popularity. Now the various
sports management companies including law firms make sure that the international players
image rights protected by the Football Clubs. The elite players like Dennis Bergkamp 12 who
later join Arsenal FC, the club paid GBP 3.5 million [GBP 2 million salary and GBP 1.5
million as image rights compensation]. In English Premier League, image rights are like
curling a free-kick from 30 yards over a wall into the top corner. There fore, it very important
to understand process which are:

9
Nike, Inc., Nike, Inc. Virtual Marking Patent Database,
https://agreementservice.svs.nike.com/ rest/agreement?agreementType=ipBrandProtection&u xId=co m.n ike.pate
nts.virtualmarking&country=US&language=en&requestType=redirect [Last Visited in Feb. 23 2020]
10
United States Patent, FOOTBALL WITH AERODYNAMIC LACE, Patent No. US 8,371,971 B2,
https://patentimages.storage.googleapis.com/b2/3c/4a/ 0b4353f00af30d/US8371971.pdf [Published in Feb. 12,
2013 | Last Visited in Feb. 22, 2020]
11
Daniel Geey, UK: Image Rights In UK Football Explained, MONDAQ, https://www.mondaq.com/uk/Media-
Teleco ms-IT-Entertain ment/449950/Image-Rights-In-UK-Football-Exp lained [Published in Dec. 7 2015 | Last
Visited in Feb. 23 2020]
12
Dennis Bergkamp, Football Player fro m A msterdam, Netherland, https://www.transfermarkt .co.in/dennis -
bergkamp/profil/spieler/3187 [Last Visited in Feb. 23 2020]

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 Company Registration;
 Ownership Structure;
 Rights and Trademark Assignment;
 Contract Execution;
 Payment of contract fees to the player.

It is very important to understand the top players value in the market so that they can evaluate
and implement Image Rights agreements especially if they have potential to excel and are
future prospect for English Clubs. The agreement shall be drafted in the accordance of
various image rights which include: -

 That individual player which shall include personal sponsors agreement e.g., shoe
and apparel brands.
 Player as a Club Player. The contract shall include club sponsors which are
associated with the club.
 Player as a National Team Member. The club make sure that should not be any
conflict in case the player needs to fulfil the national duties for its national team.

The current practice is to direct 20% of a player’s compensation to an image rights

company. 13 But given that non-domiciled EPL players can ultimately receive image rights
payments without paying any UK tax, and that HMRC chief executive Jon Thompson
referred to image rights payments as the ‘biggest problem in soccer’ in 2016, their acceptance
by the keepers of the national purse could end soon. It’s not unforeseeable that a UK
politician will choose “No More Tax Breaks for Millionaire Footballers” as a crusade. Until
then, image rights remain an interesting intersection of intellectual property rights and tax law
in Europe.

Trademarks and Industrial Designs

In English Premier League, the organisers and football franchise/ clubs have various sponsors
which have the authority to sell their merchandise to the consumers. These merchandises help
the clubs to bear the cost of trademark and industrial designs of the football team franchise.

13
Abayomi Al-A meen, Image Right Clauses in Football Contracts: Masterstroke for Mutual Success? , Intel
Prop. Rights, an open access journal Vol. 5 Issue 1 [ISSN: 2375-4516], https://www.longdom.org/open-
access/image-right-clauses-in-football-contracts-masterstroke-for-mutualsuccess-2375-4516-1000185.pdf.

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There is various merchandise which football franchise sell to their fans which includes
jerseys, scarfs, socks and many more. 14

According to the World Trademark Review, the report stated that from last three years,
Manchester United FC is the most valuable trademark in any of the top club in English
Premier League. 15 The same has been tried by the Liverpool FC to register the name
“LIVERPOOL” in 2019, however UK IPO rejected the claim due to lack of “inauthentic
product” and “geographical significance”. 16

Copyright and Broadcasting Rights

In English Premier League, the broadcasting rights is really important for the broadcasters to
protect their exclusive right of broadcasting. They pay huge amount of money to broadcast
such sports event on televisions, radio and now on online platform. It helps them to prevent
other unauthorize broadcasters to reproduce such video in the form of recording and selling
the video without any prior permission.In 2015, the Premier League finalize a deal for
broadcasting rights till 2019 estimated worth was GBP 5.14 billion by the Sky Sports and BT
Sports. 17 According to British Broadcasting Corporation report the new deal for 2019-22 was
further finalised by both the broadcasters 18 , “…the rights to show Premier League games
from 2019-2022 have been sold for £4.464bn – with two live packages still to be sold…Sky
Sports have won the rights to four tranches – 128 live matches – while BT Sport have one,
comprising 32 games.”19 The deal was further estimated worth of GBP 9.2 billion which is
approx. US$ 12 billion for next three season. However, there is drop in domestic rights but
the foreign broadcasters will pay 30% more for games.

14
WIPO, IP and Sports - Background Brief, https://www.wipo.int/pressroom/en/briefs/ip_sports.html [Last
Visited in Feb. 23, 2020]
15
Tim Lince, Manchester United tops Premier League of trademarks; Messi overtakes Neymar in player
rankings, WORLD TRADEMA RK REVIEW, https://www.worldtrademarkrev iew.co m/brand-
management/manchester-united-tops-premier-league-trademarks-messi-overtakes-neymar-p layer [Published in
2019 | Last Visited in Feb. 23 2020]
16
Simon Casinader and Niall J. Lavery, UKIPO Knocks Undefeated Reds off Their Perch: The Liverpool
Trademark and Lessons for Brand Owners, NATIONA L LAW FORUM,
https://nationallawforu m.co m/ 2019/10/19/ukipo-knocks-undefeated-reds-off-their-perch-the-liverpool-
trademark-and-lessons-for-brand-owners/ [Published in Oct. 19 2019 | Last Visited in Feb. 23 2020]
17
Owen Gibson, Sky and BT retain Premier League TV rights for record £5.14bn , THE GUA RDIAN,
https://www.theguardian.co m/football/2015/feb/10/premier-league-tv-rights-sky-bt [Published in Feb 10 2015 |
Last Visited in Feb 23 2020]
18
BBC, BBC Group Annual Report and Accounts 2018/19 , BBC,
https://downloads.bbc.co.uk/aboutthebbc/reports/annualreport/2018 -19.pdf [Last Visited in 23 Feb. 2020]
19
Admin, Premier League TV rights: Five of seven live packages sold for £4.464bn , BBC SPORTS,
https://www.bbc.co m/sport/football/43002985 [Published in Feb 13 2018 | Last Visited in Feb. 23, 2020]

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Premier League v. Internet Piracy

The UK IPO published a report regard ing crime/ infringement against Intellectual Property
Rights owned by Premier League. The officials of Premier League managed to blocked or
removed 2,10,000 live streams and 3,60,000 clips of their matches. 20 The Premier League
constitute an Anti-Piracy team which pursue all the broadcasting channels to perform various
functions, like: -

 Monitor: The Anti-Piracy team will monitor all the unauthorized online stream and
recorded clips which broadcast Premier League matches. After identifying all those
streams and clips, they disrupt and remove that online stream and recorded clips of
Premier League. In 2018/19 Season, the Anti-Piracy team successfully blocked
2,10,000 unauthorized online-stream and 3,60,000 unauthorized clips which available
in UK 21 ;
 Maintenance and Enhancement: The Anti-Piracy team will implement dynamic
injunctions which were required by UK ISP for blocking all the servers which can be
used for unauthorized broadcasting on various unauthorized online-stream22 ;
 Prosecution: In UK, they usually prefer private prosecution on the individuals who
broadcast unauthorized online stream. In 2019/19 Season, they successfully
prosecuted & convicted three individuals under common law offence for conspiracy
in terms of defraud & imprisonment totalling 17 years. While the principal defendant
received custodial sentence for seven years 23 ;
 Prevention: The Anti-Piracy Team banned various unauthorized broadcasting in pubs,
clubs and other commercial premises in UK and Ireland. During 2018/19 Season, the
Premier League successfully conducted investigation over 6,000 unique commercial
premises 24 ;

20
Mark Jackson, Premier League Hail Success of UK ISP Work to Stop Internet Piracy, ISP REVIEW,
https://www.ispreview.co.u k/index.php/2019/09/premier -league-hail-success-of-uk-isp-work-to-stop-internet-
piracy.html [Published in Sep. 9 2019 | Last Visited in Feb. 23 2020]
21
David, M. and Kirton, A. and Millward, P. (2015) 'Castells, 'Murdochization', economic counterpower and
livestreaming.', Convergence., 23 (5). pp. 497-511.
22
Cartier International A G v. Brit ish Broadcasting Ltd., [2015] R.P.C. 7.
23
Prof. Sławo mir Fundowicz, Is the mind sport really a sport?, SPORTS AND RECREATION LAW
ASSOCIATION ANNUA L CONFERENCE | BOOKS OF ABSTRACT, http://www.srlaconference.co m/wp-
content/uploads/2020/02/ BookofAbstracts_ExOrdo-srla2020-Version-15-1.pdf [Published in March 4-7 2020]
24
UKIPO, IP Crime And Enforcement Report 2018-19,
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 842351/IP -
Crime-Report-2019.pdf [Published in 2019]

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 Cases: The Premier League worked with the Reddit for final closure of their
“soccerstreams” thread, in which the account handler provide links, tips & tricks for
accessing unofficial pirated data and content. There were 4,20,000 subscribers for that
channel. The Premier League officials also remove a major football pirated website
“Ronaldo7.net ” in which approx. 80,00,000 traffic were detected globally within a
month.
The Premier League officials successfully prevent the sales & distribution of various
counterfeit goods in which over 1,10,000 items were seized and 10,000 were removed
from online stores. Overall, the officials prevent about GBP 4 million worth of
counterfeit goods. 25

Analysis

It is really important to understand that the English Premier League is multi-billion structure
where the revenues are generated from broadcasting rights, selling merchandise by respective
football clubs and image rights of the football players. Innovative products invented by sports
manufacturing companies like Nike, Adidas, Puma and other notable brands are like to
protect their invention by filing Patent application to the Patent office. Merchandise contain
name of the club and name of their respective players in scarf, socks, jerseys, shoes and other
products also by protecting their name and design through trademark & industrial designs. It
also important to know that in case any club want to apply for a trademark the name of the
football club, they need to prove “geographical significance” and “authenticity of their
product”, else their application will be rejected on this basis only.

Sports Management Companies try their best to protect the interest of their football players
by drafting the contract with the sponsors in such a way that their image rights shall be
protected without misusing it. Unofficial broadcastings were the big issue for the English
Premier League which resulted loss in their broadcasting revenue. That’s why copyright law
comes into the picture to protect the broadcasting rights of the broadcasters. In today’s digital
world, broadcasters are trying to involve large number of viewers from every corner of the
world. However, there are various unofficial broadcasters who broadcast the matches or clip

25
Premier League, Anti-Counterfeiting Programme, https://www.premierleague.com/ legal/anti-counterfeit ing-
programme [Last Visited in 14 March 2020]

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of the English Premier League through their 3 rd Party system which is violating the
broadcasting rights of the broadcasters. That’s why the English Premier League establish
their own Anti-Piracy team who track such unofficial broadcasters for streaming- live and
releasing clips without takin any permission from the official permission from the
broadcasters. The Premier League officials try to take every possible step to protect such
intangible assets which are related to their league through Intellectual Property Rights. Such
correlation between Intellectual Property Rights and Sports Law by referring English Premier
League give us great understanding regarding it’s important for such sport events.

Conclusion

We saw how the English Premier League comes into the picture after fall in the revenues and
after successful run FIFA World Cup 1990. There are total 5 teams from the English Premier
League who are ranked as Top 10 richest football club in the world. This shows how the
officials of Premier League and Football Association of UK value their football market. This
help them to develop such ecosystem in their country bring the talent from over the wold.
Such ecosystem helps in the growth in the Intellectual Property of the Premier League. The
countries like India, China and Bangladesh should refer such model to create such ecosystem
to enhance their Intellectual Property in Sports Law.

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LITIG ATION F INANCING IN THE REALM OF INTERNATIONAL

ARBITRATIONS IN INDIA
*YASH SHIRALKAR 1

In order to mitigate perhaps the biggest drawback of international arbitration –

overbearing costs – third-party funding emerged. It has been a boon to smaller entities
pursuing legitimate claims against their richer and stronger opponents. The practice of third-
party funding has faced various challenges in other jurisdictions, but it is conquering those
challenges slowly and steadily. However, India is yet to embrace this practice. This paper
analyses how exactly the practice of third-party funding would fit into the Indian legal
system. The author does this by making a comparative analysis of the status quo in India with
other jurisdictions and proposes possible methods of introducing this system into the Indian
legal system.

International Arbitration has grown rapidly over the past few decades, and this holds
especially true for India, as is evidenced by the growing number of arbitration disputes, and
more particularly, the growth of the Singapore International Arbitration Centre (“SIAC”),2
and the large number of references made to the SIAC by Indian parties. 3 One of the major
obstacles that prevented more parties from opting for international arbitration, and more
specifically, institutional arbitrations, has been increasingly burdensome costs. 4 Third-party
funding seeks to provide a solution to this overarching issue.

Third-party funding or ‘litigation financing’ in international commercial arbitration

has been one of the most discussed topics over the past few years. Its emergence has sparked
several qualms as to its ethics, morality, applicability (considering procedural issues), and
need for regulation, if any. In this paper, the author shall endeavour to determine its potential
long-term viability and whether it is here to stay or go, more particularly so in the Indian
context.

It is crucial to understand what third-party funding is and its current extent. Third-
party funding is where someone who is not a party to an arbitration provides funds to

1
Student of Government Law College, M umbai
2
QUEEN M ARY UNIVERSITY OF LONDON AND SCHOOL OF INTERNATIONAL ARBITRATION , 2018 IN TERNATIONAL ARBITRATION
SURVEY : T HE EVOLUTION OF INTERNATIONAL ARBI TRATION (2018).
3
SINGAP ORE INTERNATIONAL ARBITRATION CENTRE , ANNUAL REP ORT, (2018).
4
Supra note 1.

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someone who is a party to that arbitration in exchange for an agreed return. In the traditional
triangular layout of the party, attorney, and funder, the funding will cover the legal fees and
expenses incurred in the arbitration. The funder would ordinarily receive a specified rate of
return as a proportion of the winnings, or an absolute amount as per the terms of the funding
agreement. The growth of international arbitration with regard to its prominence and
complexity has been unmatched and consequently “[w]hether in favour or against, third-
party funding of litigation and, more recently, arbitration, is an undeniable and important
reality.”5 Anecdotal reports suggest that the global market for dispute funding – both
litigation and arbitration – is currently estimated as exceeding US$10 billion a nd rapidly
growing, 6 and this has been made largely possible by the increasing number and range of
institutions that are prepared to finance litigation and arbitration. In addition to specialised
third-party funders, insurance companies, investment banks, hedge funds and even law firms
have entered the market. 7

There have been numerous reasons for the increase of third-party funding in
arbitration. The 2008 financial crisis served as an impetus that spearheaded the emergent
practice of third-party funding, with potential claimants having meritorious claims being
unable to pursue them owing to limited cash balances and investors looking to alternative and
somewhat unconventional investments that were not necessarily reliant on the traditional
markets. According to Professors Lisa Bench Nieuwveld and Victoria Shannon Sahani, the
four main forces driving the sharp increase in its demand are, (a) better access to justice; (b)
companies seeking a means to pursue a meritorious claim while also maintaining enough
cash flow to continue conducting business as usual; (c) worldwide market turmoil and
uncertainty which has inspired investors to seek investments that are not directly tied to or
affected by the volatile and unpredictable financial markets; and (d) third-party funding as
corporate finance, whereby corporate entities enter into bespoke arrangements as a means of
raising capital for general operating expenses or expansion to meet new business goals. 8

5
ICC INSTI TUTE OF WORLD BUSINESS LAW , IN TERNATIONAL CHAMBER OF COMMERCE , T HIRD -P ARTY FUNDING IN
INTERNATIONAL ARBITRA TION 153-156 (Bernardo M . Cremades and Antonias Dimolitsa, eds., 2013).
6
Barney Thompson, Lawsuit funders raise £10bn from yield-hungry investors, FINANCIAL T IMES (Nov. 19, 2017),
https://www.ft.com/content/926355de-c941-11e7-ab18-7a9fb7d6163e; id. at 154.
7
John Divine, Litigation Finance: How Wall Street Invests in Justice, U. S. NEWS (Jan. 22, 2018),
https://money.usnews.com/investing/stock-market-news/articles/2018-01-22/litigation-finance-how-wall-street-invests-in-
justice; Lacey Yong, Burford launches new firm with former Akin Gump counsel, G LOBAL ARBITRATION REVIEW .COM (Oct. 4,
2016), https://globalarbitrationreview.com/article/1069002/burford-launches-new-firm-with-former-akin-gump-counsel.
8
L . BENCH N IEUWVELD & V. SHANNON SAHANI, T HIRD -PARTY F UNDING IN INTERNATIONAL A RBITRATION at 11 (2nd ed.
2017).

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Third-party funding is more often, although not exclusively, sought by claimants who
are smaller entities than the ones they are looking to take on, and who would fail to match the
resources of their respondents. It enables a corporation that may not have adequate resources,
or one having invested most of its resources into its projects, to pursue its claims and
unlocking a potential recovery.

Considering that, amongst other things, third-party funding does in fact level the
playing field, few questions may be raised as to its utility at least based on a first impression.
Consequently, the reluctance in its widespread utilisation and desire for regulation9 can be
attributed to grounds of procedural technicalities and morality. Several territories such as
France, UK, Australia, Singapore and Hong Kong have developed some form of regulation to
permit the benefits of a Third-party Funding Agreement (“TPFA”) to reach the funded and
check its undesirable effects, such as excessive control of the funder or reluctance of
disclosure of third-party funding agreements - which potentially affects impartiality and
independence of the arbitrators through conflicts of interest. Most notably, Singapore and
Hong Kong have passed legislations permitting litigation funding in international commercial
arbitration. 10 England and Wales have also worked towards recognising third-party funding
agreements whilst laying down certain guidelines. This is seen from, inter alia, 11 the
decriminalisations of crimes of champerty and maintenance. 12 This reflects a global trend of
countries moving towards a pro- litigation funding atmosphere. 13

India, as I have always imagined is seldom leading the pack in any front but is always
slowly but surely following suit. It is undeniable that third-party funding in international
commercial arbitration should not be altogether struck down, but if anything, must have some
form of regulation. 14 That is perhaps the long-term object of the proponents for development

9
QUEEN M ARY UNIVERSITY OF LONDON AND SCHOOL OF INTERNATIONAL ARBITRATION , 2015 IN TERNATIONAL ARBITRATION
SURVEY : IMP ROVEMEN TS AND INNOVATIONS IN INTERNATIONAL A RBITRATION (2015) (71% of the respondents believe that
third-party funding is an area that requires further regulation).
10
Arbitration and M ediation Legislation (Third party Funding) (Amendment) Ordinance, No. 6, (2017) A137 O.H.K. (This
new legislation expressly permits TPFAs.); Civil Law (Amendment) Bill, No. 38 (2016) (Sing.) (This was passed on 10
January 2017); Civil Law (Third Party Funding) Regulations, No. S 68 (2017) (Sing.).
11
The Code of Conduct for Litigation Funders was finally published in November 2011 together with the formation of the
Association of Litigation Funders of England and Wales. The Code is binding on all members of the Association and
regulates the funding of litigation, arbitration or other dispute resolution procedures.
12
Criminal Law Act 1967, c. 58 (Eng.) (However, champertous contracts continued to remain unenforceable on grounds of
public policy.).
13
INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION , T HE ICCA REP ORTS N O . 4, REPORT OF THE ICCA-QUEEN MARY
T ASK FORCE ON T HIRD -PARTY FUNDING IN INTERNATIONAL A RBITRATION at 37 (2018).
14
QUEEN M ARY UNIVERSITY OF LONDON AND SCHOOL OF INTERNATIONAL ARBITRATION , 2015 INTERNATIONAL ARBITRATION
SURVEY : IMP ROVEMENTS AND INNOVATIONS IN INTERNATIONAL ARBI TRATION (2015).

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of international arbitration in India, but the challenge presently laying before the Indian
landscape is the due recognition of this practice as not illegal by the judiciary.

There is no law expressly allowing or barring third-party funding agreements in

arbitrations seated in India. However, the simpler concept of third-party funding has been
prevalent in India in the form of Order XXV Rule 1 of the Civil Procedure Code, 1908 (as
amended by Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh) which provides that
the Courts have the power to secure costs for litigation by asking the financier to become a
party and depositing the costs in Court. But this chiefly deals with litigation. Of course, the
concept of third-party funding of litigation in India is far more complicated and has not been
particularised for the sake of brevity. The primary and exclusive legislation dealing with
arbitrations in India – the Arbitration and Conciliation Act, 1996, does not have any
provisions pertaining to third-party funding, so we must look to the Indian Contract Act, 1872
to determine the legality of third-party funding agreements.

The Supreme Court has held that the rules of champerty and maintenance do not
apply in India and such contracts are also legal, presuming of course, that an advocate is not a
party to such a contract. 15 There is yet another barrier, albeit one of technicality rather than
legality, and not always applicable but a crucial one, nevertheless. Due to the international
character of such disputes, funding is almost always arriving from overseas, and this brings in
The Foreign Exchange Management Act, 1999 (“FEMA”) classifies all transactions
involving foreign exchange and/or non-residents into two primary categories – current and
capital account transactions. 16 Under the FEMA (a) current account transactions include
“payments due as interest on loans and as net income from investments”17 – third-party
funding is commonly considered to be an investment; and (b) capital account transactions
include “any borrowing or lending in rupees in whatever form or by whatever name called
between a person resident in India and a person resident outside India",18 either in foreign
exchange or from/to a non-resident and “guarantee or surety in respect of any debt,
obligation or other liability incurred”19 hence, third-party funding may also, and perhaps
more fittingly fit this pigeon hole.

15
In re M r. ‘G’, a Senior Advocate of the Supreme Court, (1955) 1 SCR 490.
16
The Foreign Exchange M anagement Act, Act No. 42 of 1999, Gazette of India, pt. II sec. 1 (Dec. 29, 1999), §§ 5-6.
http://www.egazette.nic.in/writereaddata/1999/E_55_2013_066.pdf
17
Supra note 15, § 2 (j) (ii).
18
Supra note 15, § 6 (3) (e).
19
Supra note 15, § 6 (3) (j).

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Yet another barrier, and perhaps the most unyielding is S. 23 of the Indian Contract
Act, 1872 20 which provides that a contract is invalid, inter alia, on grounds of equity,
reasonableness, and legality, or rather lack thereof, with respect to the consideration or the
object of those contracts. And this barrier manifests itself as the infamous public policy
ground. It is at this juncture, where the status quo of the Indian Judiciary’s interpretation of
the legality of third-party funding agreements remains unsettled, at the time of this paper.

This is to be examined in light of the sub judice matter of Norscot Rig Management
Pvt. Ltd. v. Essar Oilfields Services Ltd. 21 pending before the Bombay High Court. The
origin of the issue before the Bombay High Court can be traced to an arbitral award passed
by Sir Philip Otton. In this London-seated arbitration subject to the rules of the International
Chamber of Commerce, Sir Philip Otton, after having analysed the third-party funding
agreement entered into by Norscot Rig Management Pvt. Ltd. (“Norscot”) for £650,000 in
exchange for 300% of the uplift of the funding or 35% of the damages, whichever was
greater, and having expressed his disapproval of the reprehensible conduct by Essar Oilfield
Services Ltd. (“Essar”), passed an award not only for damages in respect of a repudiatory
breach of the agreement by Essar that had given rise to the arbitration but also costs in respect
of the third-party funding. The reasoning behind the award is expressed by the arbitrator who
was highly critical of Essar's conduct, both during the operation of the agreement and for
most of the arbitration proceedings. He found that Essar had intentionally sought to
financially cripple Norscot by withholding payments that were due under the agreement and
then persisted in unjustified personal attacks along with allegations of fraud and dishonest. 22
The arbitrator concluded 23 that Norscot necessarily had to enter into a third-party funding
agreement on the terms that it did and that it would have been "blindingly obvious" to Essar
that Norscot "would find it difficult if not impossible to pursue its claims by relying on its own

20
The Indian Contract Act, Act No. 09 of 1872, INDIA CODE , § 23 (Sept. 1, 1872)
http://www.egazette.nic.in/writereaddata/1999/E_55_2013_066.pdf (“The consideration or object of an agreement is lawful,
unless—
it is forbidden by law; or
is of such a nature that, if permitted, it would defeat the provisions of any law; or
is fraudulent; or
involves or implies, injury to the person or property of another; or
the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the
object or consideration is unlawful is void.”).
21
Norscot Rig M anagement Pvt. Ltd. v. Essar Oilfields Services Ltd., Bombay HC, Commercial Arbitration Petition (L)
No.1062 of 2018.
22
Essar Oilfields Services Ltd v Norscot Rig M anagement Pvt Ltd [2016] EWHC 2361 (Comm) [21].
23
The Court examined relevant extracts of the arbitral award.

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resources". 24 Norscot had also adduced expert evidence that the terms of its funding were on
par with the market-standard, which the arbitrator accepted.

This was first challenged by Essar before J Waksman Q.C. of the English High
25
Court where Essar applied to have the award set aside under S. 68(1) of the Arbitration Act,
1996 on the ground of serious irregularity. Since the arbitrator had held that he was entitled to
award Norscot the costs of third-party funding under the head of "the legal or other costs of
the parties" (emphasis supplied) in S. 59(1) of the Arbitration Act, 1996, the Court rejected
the argument by Essar that S. 59(1) should be construed with reference to what a Court could
order in litigation under the Civil Procedure Rules 26 and other common law rules, noting that
the Act was a complete code as to the matters of arbitration. 27 The Court also rejected Essar's
argument that ‘other costs’ should be construed eiusdem generis with ‘legal costs’. 28 The
Court finally concluded "as a matter of language, context and logic…'other costs' can
include the costs of obtaining litigation funding". 29

Norscot pursued execution of the award at the Hyderabad High Court. This is because
Essar had entered into a charter-party agreement with ONGC and the Essar Wildcat, a semi-
submersible rig, was now based in the Kakinada Port within the High Court’s jurisdiction at
the time of filing the petition. Considering Essar’s assets lay in India, it sought enforcement
of the arbitral award against the same. Owing to procedural delays and the vessel having left
the port of Kakinada, Norscot withdrew its petition with leave to file it in the Bombay High
Court in light of its peculiar Admiralty jurisdiction, 30 as a High Court of a former Presidency
Town.. Norscot filed a petition under S. 47 of the Arbitration and Conciliation Act, 1996 for
enforcement before the Hon’ble Bombay High Court. It is at precisely this stage where the
dispute faces a question that is to determine the future landscape of arbitration and its far
flung effects. The crux of the issue comes back to public policy. It is likely to be a landmark
judgement and the Court, considering a pro-arbitration stand adopted by the Indian Judiciary
in the recent past 31 should not hesitate to grant enforcement of such awards considering the
requirements for a valid contract under S.23 of the Indian Contract Act, 1872 seem to have
24
Supra note 20, [23].
25
Supra note 20.
26
Civil Procedure Rules, (1998) R. 44, SI 1998/3132 (U.K.).
27
Supra note 20, [49].
28
Supra note 20, [49]-[50].
29
Supra note 20, [68].
30
Norscot Rig M anagement Pvt. Ltd. v. Essar Oilfields Services Ltd., Hyderabad HC, Execution Petition No. 2 of 2017.
31
Emerging trends in arbitration in India, ERNS T AND YOUNG GLOBAL LIMITED ,
https://www.ey.com/in/en/services/assurance/fraud-investigation---dispute-services/ey-emerging-trends-in-arbitration-in-
india (last visited M ar. 14, 2020).

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been complied with, further having considered the precedence laid by the Apex Court, 32 and
recognising that champerty and maintenance have not been a part of Indian Contract Law
since the 19th Century. 33

However, there have been other procedural obstacles that have barged in and have
been relatively though surely not welcomingly dealt with by Norscot. Petitions filed under S.
9 of the Arbitration Act, such as the Essar Wildcat being not being in the territorial waters of
India As the rig was under the charter of O.N.G.C. This was followed by Norscot alleging
that “the statement which was…recorded in the earlier order dated 4 April 2019 is not a
correct statement” and had to request the assistance of the Director General of Shipping,
Mumbai, to verify as to the location of the vessel in question which held that the vessel had
returned to Indian territorial waters. Norscot was ultimately granted temporary relief in the
form of an injunction against Essar from ensuring that the vessel does not leave the territorial
waters of India. 34 Final hearing on the matter of public policy still remains. Other procedural
issues such as changing rosters of the Judges have hindered the much-anticipated order that is
certain to send shockwaves across the Indian arbitration landscape. As of the time of writing
this paper, hearings are yet to begin on this matter before a new Bench and a final order will
eventually arrive and with it, a new driving force towards arbitration for the collective
progress of India’s commercial sector, slowly but surely.

Since third-party funding seeks to serve as a redistributive tool in the hands of

society’s have-nots as opposed to guarding the status quo in favour of society’s haves, 35 and
further in light of Article 39A of the Constitution which directs the government to “secure
that the operation of the legal system promotes justice, on a basis of equal opportunity…to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities”, one can only wonder that it is perhaps the duty of the
government to follow the examples of Singapore and Hong Kong, as opposed to having the
Court fill in the myriad lacunae. It is to be noted that the highly debated Arbitration and
Conciliation (Amendment) Bill, 2018 which recently lapsed did not consider with this issue.
Perhaps, if and when it is reintroduced there may be some much needed inclusions.

32
Supra note 14; Ram Coomar Coondoo v. Chunder Canto M ookerjee (1876) 4 I.A. 23.
33
Chedambara Chetly v. Renga Krishna, (1874) 1 IA 241.
34
Norscot Rig M anagement Pvt. Ltd. v. Essar Oilfields Services Ltd., Bombay HCs, Notice of M otion (L) No.940 of 2019 in
Commercial Arbitration Petition No.1065 of 2018
35
M aya Steinitz, Whose Claim Is This Anyway? Third-Party Litigation Funding, 95 M INN . L. REV. 1272 (2011).

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ELEVATION AND TRANSFER IN THE INDIAN JUDICIARY: AN ASSESSMENT

* YASHWANTH A S 1
“The place of Justice is a hallowed place, and therefore not only the Bench, but also the
foot space and precincts and purpose thereof ought to be preserved without scandal and
corruption". - On Judicature by Francis Bacon

Independent and impartial judiciary is the sine qua non of any democratic Constitution. The
Constitution of India, in order to ensure Independence of Judiciary, provides for the
appointment and transfer of Judges of the higher judiciary by the President in ‘Consultation’
with the Chief Justice of India and the other Judges. A controversy arose with regard to the
word ‘Consultation’ as the Supreme Court equated this word with ‘Concurrence’ while
evolving the ‘Judges’ Collegium system, shifting the power from the Executive to the
Judiciary. However, in Parliament threw away the decades old Collegium System and
established the National Judicial Appointments Commission. The Author(s) in the present
paper critically examines the two mechanisms, namely, the Judges’ Collegium and the newly
introduced National Commission for Judicial Appointments, along with the relevant judicial
pronouncements. The tussle between the Judiciary Vis a Vis the Parliament and the Executive
has come a long way since the internal emergency period of the history of our country.

The recent controversy over the transfer of the Chief Justice of the Madras High Court,
Justice Vijaya Kamlesh Tahilramani, to the Meghalaya High Court has once again brought to
the fore a long-standing debate on the functioning of the ‘Collegium’ of judges that makes
appointments and transfers in the higher judiciary. The paper concludes that, neither the
National Judicial Appointments Commission nor the Judicial Collegium proves sound on the
principles of Independence of Judiciary and Rule of Law. It suggests incorporation of
‘Judicial Council’ comprising seating judges in rotation, retired judges, renowned
academicians and jurists in the legal field, having no connection with political parties or
political activities, to be appointed by the President of India, to nominate, select and appoint
judges.

1
Dr RM L College of Law, Bangalore

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1. INTRODUCTION:

India practices constitutional governance by Rule of Law. Be it legislature, executive or

judiciary; all are creatures of the Constitution of India, 1950. In this democratic set up, the
judiciary is an impartial umpire that resolves d isputes within the boundaries laid down by a
Written Constitution and distribution of constitutional powers between different organs,
namely, Parliament, State Legislatives and Executive. 2 An independent judiciary is expected
by every citizen of the country and is not only a fundamental right, but is also a part of the
basic structure of our Constitution. It has been recognised as a human right by International
Conventions. 3
Among the noble aims and objectives of the Constitution, the founding fathers accorded the
highest place to “Justice”. The Preamble speaks of “We, the people of India” resolving to
secure inter alia “Justice - social, economic and political” to “all its citizens”. The
juxtaposition of words and concepts in the Preamble is important. Most significantly,
“Justice” is placed higher than the other principles of Liberty, Equality and Fraternity.

The independence and impartiality of the judiciary is one of the hallmarks of the democratic
system of the government. Only an impartial and independent judiciary can protect the rights
of the individual and can provide equal justice without fear and favour. The Constitution of
India provides many privileges to maintain the independence of judiciary. 4

2. HISTORY:
The question of appointment and transfer of a Judge from a Court to another has raised
serious controversies from time to time. During the emergency of 1975, 16 High Court Judge
were transferred from one High Court to another. It was widely believed that the Government
did so as a punitive measure to punish those Judges who had dared to give judgements
against it.

Most recently over the transfer of the Chief Justice of the Madras High Court, Justice Vijaya
Kamlesh Tahilramani, to the Meghalaya High Court. The understand the intent of the
founders of our constitution the Authors’ have put their views as follows along with other
developments in the said field.
2
S.B., Sinha, Judicial Independence, Fiscal Autonomy and Accountability, Nyaya Deep, January 2006, p. 21.
3
Subhojit Sadhu, Judicial Accountability of the Indian Judiciary, Supreme Court Journal, July 2007, p.27.
4
H.M., Seervai Constitutional Law o f India, 147(1991).

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2.1 AD HOC COMMITTEE REPORT (1949):

An ad hoc committee was constituted by the constituent assembly to suggest the method for
the appointment of judges. It unanimously recommended a panel of judicial and
parliamentary members to nominate future judges. The President had to confirm these
nominations. The constituent assembly did not consider these suggestions and discussed more
democratic methods of appointment of judges.

2.2 SUGGESTIONS OF THE CONSTITUENT ASSEMBLY:

Prof. Shibban Lai Saksena of the members of Constituent Assembly had suggested that
appointment of Judges should be confirmed by 2/3 rd majority of the Parliament. 5 This
proposition was rejected by the House because it would compromise the independence of
judiciary and would leave the fate of the judge in the hands of the executive and legislators.
This set the tone for independence of Judiciary in our country.

2.3 THE 121st LAW COMMISSION REPORT (1987):

The Commission makes elaborate references to Missouri Plan of United States of America,
which was not followed in the U.S. Constitutional setup. It desired the Chief Justice of India
with three senior most judges, the predecessor to the office of Chief Justice of India, i.e., who
has retired from the post of Chief Justice of India to whom the Chairman has succeeded, three
Chief Justices of High Courts according to their seniority, Union Law Minister and Attorney
General of India and an outstanding law academic as member.

2.4 NATIONAL JUDICIAL COMMISSION BILLS:

In 2003 the National Judicial Commission Bill had been introduced through Constitution
(98th Amendment) Bill. The Bill lapsed due to the dissolution of the Lok Sabha. After the
formation of the 14th Lok Sabha (2004 - 2009) National Advisory Council prepared a concept
paper on a National Judicial Commission. The Constitution (120 th Amendment) Bill, 2013
and the Judicial Appointments Commission (JAC) Bill, 2013 were introduced in the Rajya
Sabha in August 2013. The Standing Committee submitted its report on the JAC Bill, 2013 in
December 2013. This was passed by the Rajya Sabha but lapsed with the dissolution of the
15th Lok Sabha.

5
Constituent Assembly Debate on 24 May, 1949.

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3. NEED FOR INDEPENDENT JUDICIARY:

Only an impartial and independent Judiciary can stand as a bulwark for the protection of the
rights of the individual. The Judiciary is the protector of the rights of the Constitution and, as
such, it may have to strike down executive, administrative and legislative acts of the Centre
and the State. For Rule of Law to prevail, judicial independence is of prime necessity. Being
the highest court in the land, it is very necessary that the Supreme Court is allowed to work in
an atmosphere of independence of action and judgement and is insulated from all kinds of
pressure, political or otherwise.

The members of the Constituent Assembly were very much concerned with the question of
independence of the Judiciary and, accordingly, made several provisions to ensure this end.
The Supreme Court has itself laid emphasis on the independence of the judiciary' from time
to time. As the court has observed recently in Thalwal; 6 'The constitutional scheme aim at
securing an independent Judiciary which is bulwark of democracy".

4. COLLEGIUM SYSTEM AND CONSTITUTIONAL PROVISIONS:

The constitutional provision on transfer of judges has a direct and proximate connection with
the independence of the judiciary. This provision like many other constitutional provisions
can be made use of for achieving many useful purposes as well as evil purposes. During the
first quarter century of the working of the Constitution, this was never abused. But in recent
years, some attempts were made and are being made to misuse this provision. Its abuse will
have many dangerous effects on the judiciary and its independence. If the judiciary loses its
independence and becomes subservient, the net result would be that the Constitution will lose
its prominence. If the beacon of the judiciary must remain bright, the court must be above
reproach, free from coercion and from political influences.

4.1. JUDICIAL APPOINTMENTS UNDER THE INDIAN CONSTITUTION:

The Indian Constitution under Articles 124(2) and 217(1) provides for the President to
appoint the Chief Justice of India and other Judges of the Supreme Court, after consultation
with such of the Judges of the Supreme Court and High Courts in the States as the President
may deem necessary for the purpose 7 and the Judges of the High Court, after consultation

6
A.C. Thalwal v. High Court of Himachal Pradesh, (2000) 7 SCC 19.
7
The Constitution of India, Art icle 124(2).

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with the Chief Justice of India, the Governor of the State, and the Chief Justice of the High
Court (except when the Chief Justice of the High Court himself is to be appointed). 8 Further,
the President is always required to consult the Chief Justice of India in case of appointment of
the Judges other than the Chief Justice. 9

Independence and impartiality of judiciary is the hallmark of democratic set-up of the

government. Independence of judiciary starts from appointment of judges. The appointment
of the judges is the prime and fore- most link in the chain of judicial reform.

Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary. The bone of contention in
this particular section is the word 'consultation', that whether 'consultation' means
concurrence or merely communication.

In S.P. Gupta10 case the Supreme Court held that 'consultation is a mere suggestion not
concurrence and is not binding on the President.' Their reasons were as follows:-
(i) They followed the judgement in Sankal Chand Sheth11 . (ii) They said that Chief Justice
of India is also a man with the flaws and failings of a common man, hence making his view
bindings on the President and the executives may be dangerous idea. (iii) They referred the
Constituent Assembly Debates where Dr. Ambedkar strongly opposed the idea.

Whereas in Supreme Court Advocates on Record, 12 case the judgement in S.P. Gupta’s case
was reversed and the court has held that the opinion of the Chief Justice shall be binding on
the President as he is more competent than other constitutional machineries to accrue the
merit of a candidate. The instrument of consultation has great bearing in case of promotion.
The term consultation has been defined differently by different authors. Some say13 that

8
The Constitution of India, Article 217(1).
9
The Constitution of India, Article 124(2) and 217(1).
10
S.P. Gupta v. Union of India AIR 1982 SC 149.
11
Union of India v. Sankal Chand Himatlal Sheth 1977 AIR 2328.
12
Supreme Court Advocates on Record v. Union of India (1993) 4 SCC 441.
13
In Sankal Chand Sheth's Case, it was held that the world 'consultation' meant full and effective consultation,
but does not mean mere formality. This was also affirmed by Judges Transfer case. The meaning of word
'consultation' in Article 124(2) is the same as the meaning of word 'consultation' in Article 222 of the
Constitution.

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consultation means effective one and other say14 that it is just to elicit or seek the opinion of
the judges or the Chief Justice. But if we see the constitution provision the word “may” has
been used. The word 'may' means may or may not. Further the word "may" signifies that is
not mandatory for the President to consult anyone.

If the collegiums cannot stand up to the government, the rule of law is at peril. The transfer
provisions in the Constitution were meant for transfer by consent where exigencies required.
In the Sankal Chand Sheth case, the actual transfer was withdrawn. But Justice YV
Chandrachud did not accept the ‘consent’ princip le. Justice P N Bhagwati, however, stated
that to transfer without consent was inimical to the independence of the judiciary.

5. THE 214th REPORT OF LAW COMMISSION OF INDIA:

The Law Commission of India in its 214th Report severely criticized the three cases, First,
Second and third judges cases for rewriting the Constitution. The Law Commission rightly
observed that, the Court has wrongly interpreted the Constitution while conferring primacy
on the Chief Justice of India, in fact the Constitution has not conferred any primacy on the
Chief Justice of India neither it mentions anything about ‘Collegium’ nor does it fixes the
number of judges to be consulted, which, in fact is a sole discretion of the Executive i.e.
President. It observed that, ‘any addition of words in the Constitution would not be
permissible under the interpretive jurisdiction of the Supreme Court.

It is further commented that, under the Constitution, it is the President who can consult the
Chief Justice of India and other judges at his discretion and not for the Chief Justice of India
to consult other judges. The Supreme Court has to interpret the Constitution as it is and it
cannot add any new words to the Constitution. It felt an immediate need to reconsider these
three judgments in order to bring about clarity and consistency in the process of appointment
of Supreme Court and High Court Judges. 15

14
D.D. Basu opined that the meaning of word 'consultation' indicates that President is not bound to follow the
recommendation. In the matter of appointment of Chief Justice of India the last world will thus rest with Prime
Minister. It is mere formality.
15
Law Co mmission of India, 214th Report on Proposal for Reconsideration of Judges Cases I, II AND III.

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6. THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014:

The Constitution (99th Amendment) Act, 2014 amends Article 124 of the Constitution to
provide for the National Judicial Appointments Commission (NJAC) to make
recommendations to the President for appointments of judges at Supreme Court and High
Courts and seeks to confer constitutional status to the Commission. The NJAC comprises of
the Chief Justice of India as Chairperson; two other senior Judges of the Supreme Court, the
Union Law Minister; two eminent persons (one of the eminent person shall be belonging to
the SCs, the STs, OBCs, Minorities or Women) to be nominated by the committee consisting
of the Prime Minister, the Chief Justice of India and the Leader of Opposition. It also
empowers the Parliament to regulate the procedure for the appointment of Judges and
empowers the Commission to lay down the procedure for the discharge of its functions, the
manner of selection of persons for appointment, etc.

The National Judicial Appointments Commission Act, 2014 provides for the establishment of
the NJAC to recommend appointments and transfer of Judges of Higher Judiciary. The NJAC
Act provides for the senior- most Judge of the Supreme Court to be appointed as the Chief
Justice of India. The Chief Justice of a High Court is to be appointed on the basis of inter se
seniority of High Court Judges plus ability, merit and other criteria of suitability as specified
by regulations. And for the post of the Supreme Court Judge, the eligible 16 persons may be
recommended on the basis of their ability, merit and other criteria specified by regulations
framed by the NJAC under the NJAC Act. 17 It is further provided that, in case of appointment
of the Judge of the High Court, apart from seniority, the ability and merit of such Judge shall
be considered. 18 While appointing the judge of the High Court, the Commission has to seek
nominations from the Chief Justice of the concerned High Court.

Furthermore, the Commission cannot recommend the appointment of judge, if two members
of the Commission are not agreed with. 19 The Commission shall on the basis of ability, merit
and other criteria of suitability as may be specified by regulations, nominate names for
appointment as a Judge of a High Court from amongst persons who are eligible to be

16
Article 124 of The Constitution of India, 1950.
17
Section 5, NJAC Act, 2014.
18
Section 6 (1) NJA C Act, 2014.
19
Section 5 (2) NJA C Act, 2014.

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appointed as such under clause (2) of Article 217 of the Constitution and forward such names
to the Chief Justice of the concerned High Court for its views 20 .

The process of appointment and transfer has become opaque and leave scope for arbitrary and
unreasonable exercise of powers. There is neither any logic in composition of collegium, i.e.
Chief Justice of India and four senior-most judges, nor in their selection based on seniority.
This makes the present collegium system and its process of consultation undemocratic and
hence unconstitutional.

7. JUDICIAL INDEPENDENCE v. DEMOCRATIC LEGISLATION:

NJAC JUDGEMENT:

On the Appointment of Judges on 16th October, 2015 the judiciary took a tough stand and
stuck down the 99th Constitutional Amendment of 2014 in the Supreme Court Advocates on
Record Association v. Union of India (4th Judges case) 21 ; a move which is celebrated by
many pro-judicial independence supporters and frowned upon by those who believed the
democracy to be the heart and soul of the Constitution.

8. JUDICIAL COUNCIL:
Broadly, there are two distinct areas. One is the area of legal acumen of the candidates to
adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief
Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the
High Court and his colleagues (who) are the best persons to adjudge the legal acumen. Their
voice should be predominant.

So far as the antecedents are concerned, the executive is better placed than the judiciary to
know the antecedents of candidates. Therefore, my judgement said that in the area of legal
acumen the judiciary's opinion should be dominant and in the area of antecedents the
executive's opinion should be dominant. Together, the two should function to find out the
most suitable (candidates) available for appointment.

20
Section 6 (3) NJA C Act, 2014.
21
WP (Civil) No. 13 of 2015.

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In order to have a rational and most democratic process of appointments without harming the
‘independence of the judiciary’ a comprehensive mechanism needs to be constituted. Care
should be taken that the power of the appointment shall not vest only in few hands. It should
also not be with the executive, legislature or the judicial collegium. A middle way may be
adopted so as to ensure the ‘check and balance’ and ‘Rule of Law’ without compromising the
independence of judiciary.
A Judicial Council with a good number of members comprising seating judges in rotation,
retired judges, renowned academicians and jurists in the legal field, having no connection
with political parties or political activities, in equal proportion, to be appointed by the
President, to nominate, select and recommend the names for appointments of judges, after
evaluating their performance, background, ability, experience, and expertise, according to the
criteria devised by the council. It is to be ensured that the nominations of advocates and
jurists for elevation as judge of the High Court and the Supreme Court should not be
restricted only for advocates and judges and it should be opened for academicians too.

Such Judicial Council should also be authorized to hear the complaints by and against the
sitting judges, as the judges of Supreme Court or High Courts themselves cannot hear
complaints by or against their fellow colleagues. Such Judicial Council should be empowered
to draft Memorandum of Procedure for appointments of judges at higher judiciary and also
procedure for hearing complaints by and against sitting judges.

9. CONCLUSION:

It is clear from the historical overview that judicial independence has faced many obstacles in
the past especially in relation to the appointment and transfer of judges. The judiciary and
the executive are struggling to retain the power of judicial appointments. While doing so, the
Supreme Court has imported the new words like ‘Concurrence’, ‘Primacy’, and installed into
the Constitution in order to grasp the power; while the executive amended the Constitution to
replace the ‘Consultation’ process with the Chief Justice of India including Collegium with
the NJAC. Neither the NJAC nor the Judicial Collegium proves sound on the principles of
independence of judiciary and Rule of Law.

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As there is no transparency in exercising the power of transfer, there is ample scope for
misunderstanding the reason for transferring a particular Judge. It is time to review the
transfer policy. Transfer can never be a solution to tackle judges of doubtful integrity.
Judicial Council would be a mechanism by which such judges who do not enjoy good
reputation could be prematurely retired from the service after an objective assessment of each
case. This, no doubt, requires an amendment to the Constitution.

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COMPLETE JUSTICE UNDER ARTICLE-142

* YOGENDRA KUMAR KUMAWAT 1

Introduction-
The genesis of the concept of “complete justice” is found in the concept of equity.
Broadly speaking, equity connotes justice, i.e., that which is fair and just. In
England, during the medieval era, law courts enforced the King’s laws. The King’s
judges, educated in law rather than theology, administered the realm’s universal law.
If any party was not happy with decisions given by them, he could appeal directly to
the King. As the sovereign, he was seen as the “fount of justice” and responsible
for the just treatment of his subjects. Subsequently, the King regularly delegated his
power to the Chancellor to dispose of such petitio ns. Thus, in England, it owes its
origin to the exercise by the Chancellor of the residual discretionary power of the
King to do justice when a common law court was unable to do justice. Subsequently,
the equity jurisdiction was invoked in cases where the common law was not flexible
enough to provide a remedy. So the Chancellor tried to give relief in hard cases.
The Drafters of the Constitution were
mostly Lawyers who graduated in Laws in an educational system whose syllabi
mainly consisted of examples from the ‘common law’ system; because they were
more familiar with this system, they possibly felt comfortable with this system,
rather than boldly experimenting with the ‘civil law’ system -- although in a country
in which almost 1/3rd of the population lives Below Poverty-Line, the ‘adversarial
system of justice delivery’ fails to provide a level playing ground to the majority of
its citizens who are financially unable to afford the very high Fees of
the better (more knowledgeable, cunning & resourceful) Lawyers. And in this
uneven situation/circumstance, the proceedings before a court of law merely
becomes a battle between the adversary Parties Advocates’ wits and their Witnesses’

1
(LL.B., D.LL.,LL.M., NET,SET & Pursuing Ph.D.
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guile -- rather than leading to the ideal situation that facilitates impartial elicitation
and weighing of the True facts.
Moreso, the said Drafters were unsure as to whether Indian ‘subordinate’ (lower)
judiciary was at that time well-prepared to be ably, efficiently & impartially
implement the ‘civil law’ system -- which depends heavily upon the quality of the
Trial Court’s Judges, rather than upon the drafting & arguing skills of adversarial
Parties’ Lawyers.
Hence, the said Drafters experimented with the ‘civil law’
system only to the extent of handing over this ‘magical wand of Justice’ to
the wizened Hon’ble Judges of only the Apex Court -- so that the latter may be able
to focus, in appropriate cases/matters/causes, ondispensation of Justice, instead of
being concerned solely with the rate of disposal of cases before the Court and
blaming the outcome of the case to the inherent ills of the ‘adversarial system’; that
is to say, Article 142 empowers this Hon’ble Court not to depend upon the props &
crutches of the art of advocacy of the cleverer & better- paid Lawyers representing
one of the adversary Parties before the Hon’ble Court. This power of Equity was
once used by an Hon’ble Judge of this Court in a unique manner to balance the
equities -- by paying out of his own Bank Account the paltry arrears of rent owed by
a very old citizen who had otherwise no means to pay the same, so that the poor
senior citizen would continue to have a roof over his head till his death.

The Supreme Court has time and again resorted

to Article 142 in a variety of cases and passed orders to do "complete justice". It is
thus imperative for us to analyse the current understanding of Article 142 to be
better equipped to answer whether it is time that the Court limits its powers under
Article 142.

Article 142 is conceived to meet the situations

which cannot be effectively and appropriately tackled by existing provisions of law.
Thus it appears that where existing provisions of law can adequately deal with the
issue at hand and do justice between the parties, the Supreme Court would not
normally exercise its powers under Article 142.

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"The phrase 'complete justice' engrafted in Article 142(1) is the word of width
couched with elasticity to meet myriad situations created by human ingenuity or
cause or result of operation of statute law or law declared under Articles 32, 136 and
141 of the Constitution and cannot be cribbed or cabined within any limitations or
phraseology." 2

The power under Article 142 of the

Constitution of India has been variously defined by Supreme Court in its sepa rate
Judgments, e.g. as a ‘plenary power’, ‘curative power’, ‘power to crease out the
edges’, ‘residual power’ etc -- whereas it would be more appropriate to view the
intended import & purpose of Article 142 as a well- intentioned yet limited
experiment with the ‘civil law’ system to achieve the ultimate goal of a Judgment
that is instantaneously respected by the people because of the depth of its Truth [as
meant by the vernacular Hindi phrase “Doodh ka doodh, paani ka paani” thus, the
aim & object of Article 142 is to ensure that a case is not merely disposed of by the
“court of last resort” without, in fact, also dispensing ‘Justice’ -- in the truest sense
of this term in that case/matter/cause. The Court invoked its power under Article 142
of the Constitution which confers upon it the power to do “complete justice.” The
constitutional rationale trotted out by the Court for the extraordinary step taken by it
is the failure of the constitutional functionaries, viz., the Chief Minister, the leader of
the Opposition and the Chief Justice of the Allahabad High Court, who comprise the
committee that selects the lokayukta, to comply with its orders. However, the
invocation of Article 142 for appointing lokayukta which falls within the exclusive
domain of the executive raises serious constitutional questions.
The power bequeathed under Article 142
is unique which has been given to the apex court as a matter of safety valve so that if
need be it can give extraordinary relief not even prayed for in some rare cases. The
jurisdiction of the apex court under this special provision was not debated much in
the Constituent Assembly, and for the first three decades, it was invoked in cases
few and far between. However, subsequently, its liberal interpretation by the Court

2
Ashok Ku mar Gupta v. State of U.P., (1997) 5 SCC 201, p. 250, para 60
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has spawned fierce controversy with respect to the power conferred by it. Article
142(1) reads: “The Supreme court in the exercise of its jurisdiction may pass any
decree or make such order as is necessary for doing complete justice in any cause or
matter pending before it…” The words “in the exercise of its jurisdiction” make it
abundantly clear that the power given under this article does not confer any extra
jurisdiction.
Article 142(2) confers three different powers on the Supreme Court. They are:

(i) Securing the attendance of persons before it.

(ii) Discovery and production of documents.
(iii) Investigation and punishment of contempt of itself.

The first two powers belong to the area of the law of evidence which is admittedly a
procedural law. The third aspect if read with Article 129 shows that it also deals with
an aspect of procedure. Our Constitution devotes two articles for dealing with
contempt power of the Supreme Court. They are Articles 129 and 142(2). Article
129 says that the Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish for the contempt of itself. It is
supplemented by Article 142(2) which inter alia, deals with the investigation and
punishment of the contempt of the Apex Court. Article 129 confers substantive
power on the Apex Court to punish for contempt of itself. Article 142(2)
supplements it by specifically conferring the power of investigation and punishment.
The investigation area belongs to the area of the law of procedure.

Article 142 of the Constitution of India read as:-

"142. Enforcement of decrees and orders of Supre me Court and orders as to

discovery, etc.-(1) The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in any
cause or matter pending before it, and any decree so passed or order so made shall
be enforceable throughout the territory of India in such manner as may be prescr ibed
by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe.
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(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and
every power to make any order for the purpose of securing the attendance of any
person, the discovery or production of any documents, or the investigation or
punishment of any contempt of itself."

Scope of Powe r under Article 142

The object of Article 142(1) is that the Supreme Court must not be obliged to
depend on the executive for the enforcement of its decrees and orders. Such
dependence would violate the principles of independence of the judiciary and
separation of powers, both of which were held to constitute the basic structure of the
Constitution. The interpretation of complete justice by the Apex Court has given it a
different dimension which was not intended by the founding fathers.

The interpretation of complete justice has not been consistent, from 1963 to 1989,
the interpretation of complete justice was that it cannot be adverted to, to defeat
statutory provisions. The first case in the series is Prem Chand Garg v. Excise
Commr., U.P., Allahabad 3 In this case, the question before the Constitution Bench
was that, whether the Supreme Court could frame a rule or issue an order which
would be inconsistent with any of the fundamental rights. Answering the question in
the negative, Chief Justice Gajendragadkar, J. for the majority observed:

"An order which this Court can make in order to do complete justice between the
parties, must not only be consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the substantive provisions of the
relevant statutory laws."

This view was approved by the same learned Judge in Naresh Shridhar
Mirajkar v. State of Maharashtra 4 which was decided by a larger Bench of nine
Hon'ble Judges. Once again, the proposition made in Garg case was approved by a

3
AIR 1963 SC 996
4
AIR 1967 SC 1
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seven-Judge Bench in A.R. Antulay v. R.S. Nayak 5 A three-Judge Bench of the

Apex Court reiterated this view in Arjun Khiamal Makhijani v. Jamnadas C. Tuliani6
thus:

“... Article 142 does not contemplate doing justice to o ne party by ignoring
mandatory statutory provisions and thereby doing complete injustice to the other
party by depriving such party of the benefit of the mandatory statutory provisions.”

This view was overturned by the Supreme Court in Delhi Judicial Service
Assn. v. State of Gujarat 7 wherein K.N. Singh, J. (as he then was) for a three-
Member Bench observed that this Court's power under Article 142(1) to do
'complete justice' is entirely of different level and of a different quality. Any
prohibition or restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once the court is in session of a matter before it,
“it has power to issue any order or direction to do ‘Complete Justice’ in the matter.
This constitutional power of the Apex court cannot be limited or restricted by
provisions contained in statutory law”

These observations were approved by the Constitution Bench which decided Union
Carbide Corpn. v. Union of India 8 Venkatachaliah, J. held that prohibitions or
limitations or provisions contained in ordinary law cannot, ipso facto, act as
prohibitions or limitations on the constitutional powers under Article 142.The court
has taken a very broad view of Article 142. The Court has observed in relation to the
scope of its powers under Article 142:-

“The proposition that a provision in any ordinary law irrespective of the importance
of the public policy on which it is founded, operates to limit the powers of the Apex
Court under Article 142(1) is unsound and erroneous.....The (Court’s) power under
Article 142 is at an entirely different level and of a different quality. Prohibitions or

5
(1988) 2 SCC 602 at pp. 656 & 730
6
(1989) 4 SCC 612
7
(1991) 4 SCC 406
8
(1991) 4 SCC 584
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limitations or provisions contained in ordinary laws cannot, ipso facto, act as

prohibitions or limitatios on the constitutional powers under Article 142....Perhaps,
the proper way of expressing the idea is that in exercising powers under Article 142
and in assessing the needs of “Complete Justice” of a cause or matter, the Apex
Court will take not of the express prohibition in any substantive statutory provision
based on some fundamental Principles of public policy and regulate the exercise of
its power and discretion accordingly.This proposition does not relate to the powers
of the court under Article 142, but only to what is or is not ‘Complete Justice’ of a
cause or matter and in the ultimate analysis of the propriety of the exercise of the
power. 9

In Bonkya v. State of Maharashtra 10 a two-Judge Bench

held that the amplitude of powers available to the Supreme Court under Article
142(1) of the Constitution of India is, normally speaking, not conditioned by any
statutory provision but it cannot be lost sight of that the Court exercises jurisdiction
under Article 142 of the Constitution with a view to do justice between the parties
but not in disregard of the relevant statutory provisions. The unbridled nature of the
power was reiterated in Keshabhai Malabhai Vankar v. State of Gujarat 11 . The Apex
Court held that undoubtedly it has the power untrammelled by any statutory limits.

In Dharma V. Nirmal Singh Bitta 12 The Court argued

that the power available to it Under Article 136, is not circumscribed by any
limitation. In any case, power under Article 142 is available to pass such order as
may be deemed appropriate to do Complete Justice. Accordingly, the court bypassed
the limitation imposed on it by section 401(3), Cr.P.C., and itself sentenced the
accused.

9
Union Carb ide Co rpn. v. Union of India AIR 1992 SC 248,278
10
(1995) 6 SCC 447
11
1995 Supp (3) SCC 704
12
AIR 1996 SC 1136 : (1996) 7 SCC 471
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Supreme Court has emphasized in Vishakha

13
V. State of Rajasthan that it is the duty of the executive to fill the vacuum by
executive orders because its field is coterminous with that of the legislature and
where there is inaction even by the executive, for whatever reason, the judiciary
must step in, in exercise of its constitutional obligations under the aforesaid
provisions to provide a solution till such time as the legislature acts to perform its
role by enacting proper legislation to cover the field 14 .

In V.C. Mishra, Re 15 which was overruled by a

Constitution Bench in Supreme Court Bar Assn. v. Union of India 16 the Apex Court
reasserted that Prem Chand Garg case was no longer good law in view of the law
laid down in UCC case.

Supreme Court has ruled in Vineet Naraian V. Union of India 17 that ample powers
are conferred on the court Under Articles 32, 141,142 and 144 to issue necessary
directions to fill the vacuum till either the legislature steps in to cover the gape or
discharges its role.

In Delhi Development Authority V. Skipper Construction Company 18 the Supreme

Court has emphasized that the power given to it under Article 142 is conceived to
meet situations which cannot be a effectively and appropriately tackled by the
existing legal provisions. The Supreme Court has left the power under Article 142
“undefined and uncatalogued” so that “it remains elastic enough to be moulded to
suit the given situation”

In Supreme Court Bar Assn. v. Union of India though the Court took the position
that Article 142 gives it unlimited power, it seems it adopted a cautious and balanced

13
AIR 1997 SC 3011
14
AIR 1984 SC 469, AIR 1985 SC 195, AIR 1992 SC 248 & AIR 1994 SC 268
15
(1995) 2 SCC 584
16
(1998) 4 SCC 409
17
AIR 1998 SC 889
18
AIR 1996 SC 2005: (1996) 4 SCC 622
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approach. Dr A.S. Anand, J. (as the learned Chief Justice then was) for the
unanimous Constitution Bench observed:

"Indeed, these constitutional powers cannot, in any way, be

controlled by any statutory provisions but at the same time these powers are not
meant to be exercised when their exercisemay come directly in conflict with what
has been expressly provided for in a statute dealing expressly with the subject."

Supreme Court Bar Assn. Case was referred to in M.S.

Ahlawat v. State of Haryana 19 wherein it was held that the order passed by the
Supreme Court by issuing a show-cause notice and conviction summarily under
Section 193 of the Indian Penal Code for making false statement, was one without
jurisdiction and such an order could not be passed relying on Article 142. In M.C.
Mehta v. Kamal Nath20 it was held that the exercise of power under Article 142 of
the Constitution cannot be pressed into aid in a situation where action under it would
amount to contravention of the specific provisions of a statute. This position was
reiterated in E.S.P. Rajaram v. Union of India 21 by a five-Judge Constitution Bench
wherein the earlier decisions on this point including Supreme Court Bar Assn.
case were referred to. D.P. Mohapatra, J. speaking for the unanimous Constitution
Bench observed thus:

In the case of State of Punjab v. Bakshish

Singh22 concerning a departmental proceeding against a police constable this Court
rejecting the contention raised by the appellant that the Supreme Court could not
cure inconsistency because the respondent had not filed any cross-appeal, this Court
removed the inconsistency by invoking Article 142 of the Constitution and by
referring to Order 41 Rule 33 and Section 107(1)(a) of the Code of Civil Procedure,
1908. This Court referring to the decision of the Constitution Bench in Supreme
Court Bar Assn. Case reiterated the position that while exercising power under

19
(2000) 1 SCC 278
20
(2000) 6 SCC 213
21
(2001) 2 SCC 186
22
(1998) 8 SCC 222
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Article 142 of the Constitution the Court cannot ignore the substantive right of a
litigant while dealing with a cause pending before it and can invoke its power under
Article 142. The power cannot, however, be used to supplant substantive law
applicable to a case. This Court further observed that Article 142 even with the
width of its amplitude, cannot be used to build a new edifice where none existed
earlier, by ignoring express statutory provisions dealing with a subject and thereby
achieve something indirectly which cannot be achieved directly."

It is submitted that the decisions rendered in Garg and Antulay’s cases reflect the
correct position in law and the contra- view taken in Delhi Judicial Service
Assn., UCC,Mohd. Anis and Re V.C. Mishra is not correct for the following
reasons:

(a) The proposition that ordinary laws cannot run counter to constitutiona l
provisions had its beginning in Marbury v.Madison. In this historic decision, Chief
Justice John Marshall of the US Supreme Court struck down Section 13 of the
Judiciary Act, 1789 as unconstitutional. Likewise, the Supreme Court of India also
has the power of judicial review and it enjoys the power to strike down statute law.
But without striking down, the Supreme Court cannot ignore or disregard statutory
provisions merely because Article 142 is a constitutional provision.

(b) Article 142 is an article which deals with procedural aspects and the two words
"complete justice" cannot enlarge the scope of the article. In construing the
expression "complete justice", the scheme of the article should be looked into. It is
not right to construe words in a vacuum and then insert the meaning into an article.
Lord Greene observed in Bidie v. General Accident, Fire and Life Assurance
Corpn. 23

23
(1948) 2 A ll ER 995, 998
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(c) Complete justice should be according to rule of law which is a basic feature of
the Constitution vide Kesavananda Bharativ. State of Kerala 24 , Indira Nehru
Gandhi v. Raj Narain 25 andP. Sambamurthy v. State of A.P. 26

(d) Article 142(1) by employing the words "complete justice" reflects Section 151 of
the Civil Procedure Code, 1908 and Section 482 of the Criminal Procedure Code,
1973. All these provisions deal with inherent powers and they are more or less
similarly worded. Section 151 CPC reads:

"151. Saving of inherent powers of court.—Nothing in this Code shall be deemed to

limit or otherwise affect the inherent power of the court to make such orders as may
be necessary for the ends of justice or to prevent abuse of the process of the court."

Section 482 of the Code of Criminal Procedure, 1973 reads:

"482. Saving of inherent powers of High Court.—Nothing in this Code shall be

deemed to limit or affect the inherent powers of the High Court to make such orders
as may be necessary to give effect to any order under this Code, or to prevent abuse
of the process of any court or otherwise to secure the ends of justice."

Article 142(1) substantially uses the words occurring in the aforesaid statutory
provisions which are procedural laws. Order XLVII, Rule 6 of the Supreme Court
Rules, 1966 is also similarly worded. Therefore complete justice can be done to cure
procedural infirmities and it does not confer any substantive power.

(e) The marginal note appended to Article 142 supports the view that the article
does not confer any substantive power on the Apex Court. The marginal note of
Article 142 reads: "Enforcement of decrees and orders of Supreme Court and orders
as to discovery, etc." The marginal note speaks of enforcement and discovery and
not about complete justice. Had the makers of the Constitution wanted to confer the
power to override statutory provision, its importance would have been spelt out in

24
(1973) 4 SCC 225
25
1975 Supp SCC 1
26
(1987) 1 SCC 362
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the marginal note. It is settled law that the marginal note is a part of the statute or the
Constitution as the case may be and a permissible internal aid in construing a statute.
Though the marginal note cannot cut down the scope of the enactment, it can be
resorted to if there is an ambiguity in the enactment. The Supreme Court adverted to
and relied on the marginal note of Article 368 in Golak Nath v. State of Punjab 27 , a
decision by an eleven-Judge Constitution Bench. In Bengal Immunity Co.
Ltd. v. State of Bihar 28 , a seven-Judge Constitution Bench of the Supreme Court
construed the marginal note of Article 286 to find out the meaning of the
phraseology employed in the article. Thus viewed, the marginal note of Article 142
suggests that the article concerns itself with procedural aspects.

(f) The words "complete justice" cannot be read in isolation. They occur in Article
142 of which clause (2) also forms part. A reading of clause (2) of Article 142
proves beyond doubt that Article 142 is an article of procedure.

Thus the Court was of the view that the power under Article 142 should not be so
exercised as to violate an express statutory provision dealing exclusively with the
subject in spite of holding that statutory provisions cannot be a limitation on exercise
of Article 142. 29

This view was further reaffirmed by the Court in M.C. Mehtav. Kamal
Nath30 wherein the Court held that Article 142 cannot be pressed into service in a
situation where action under that article would amount to contravention of specific
provisions of the Act.

In R.K. Anand V. Registrar, Delhi High Court 31 Supreme Court observerd that
Article 142 is conceived to meet situations which cannot be effectively and

27
AIR 1967 SC 1643
28
AIR 1955 SC 661
29
(1998) 4 SCC 409
30
(2000) 6 SCC 213
31
(2009) 8 SCC 106
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appropriately tackled by the existing provisions of law.In othe r case 32 a decree for
divorce on the ground of irretrievable breakdown of marriage was granted although
the Hindu Marrige Act,1955, under which the matter arose, does not recognise it as
one of the grounds on which a court can direct dissolution of marriage.

Commissioner of Income Tax, Shimla V. Greenworld Corporation, Parwanoo 33 on

Article 142, the Court has observed that “the power exists as a separate and
independent basis of jurisdiction, apart from the statutes”. “This plenary jurisdiction
is, thus, the residual source of power which this court may draw upon as necessary
whenever it is just and equitable to do so and in particular to ensure the observance
of the due process of law, to do complete justice between the parties, while
administering justice according to law”. The power conferred by Article 142 being
“curative in nature” cannot be construed as power authorising the court is ignore
“the substantive right of a litigant” while dealing with a cause pending before it”.
The power conferred by Article 142 has been held to be “Complementary” to those
powers specifically conferred on the court by statutes. Thus in an appropriate case
the court can direct the commissioner of incometax to reopen an assessment under
thr Incometax act.

In Rumi Dhar (SMT.) V. State of West Bengal 34 the court further observed that it
cannot use its power under Article 142 to “supplant” substantive law applicable to
the case or cause under consideration of the court. Article 142 cannot be used, even
with the width of its amplitude, to build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a subject and thereby achieve
something indirectly which cannot be achieved directly. The Court has said that in
exercise of its jurisdiction under Article 142 and the High Courts under Section 482
of Cr.P.C. would not direct quashing of a case involving crime against society and
more so when both trial court as also the High Court have found that a prima facie
case has been made out against the accused.

32
A. Jayachandra V. Aneel Kaur AIR 2005 SC 534
33
(2009) 7 SCC 69
34
AIR 2009 SC 2195: (2009) 6 SCC 364
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In Narendra Champaklal Trivedi V. State of Gujarat 35 under Section 7 and 13 of

Prevention of Corruption Act, 1988 the Supreme Court held that in case of minimum
sentence provided by law, it is not at all appropriate to exercise jurisdiction under
under Article 142 to reduce the sentence on the ground of so-called mitigating
factors as that is tantamount to supplanting statutory mandate and further ignoring
the substantive statutory provision for a criminal act.

In State of Maharastra V. Sarva Shramik Sangh, Sangli 36 the SLP and Curative
petitions therefrom were also dismissed on the ground of gross delay. However, the
Supreme Court held that it had authority coupled with a duty to pass an appropriate
order for doing complete justice under Article 142 and therefore the relief to 163
workmen would have to be moulded to be somewhat similar to that given to the
other group of 10 workmen. Since there services had been terminated in 1985and the
case was decided by the Supreme Court on 21.10.2013, most of them must have
reached the age of superannuation. Therefore, there could not be any order of
reinstatement. They would be entitled to continuity of service and although they had
been receiving last drawn wages under Section 17B of the Industrail Disputes Act,
1947, they would be entitled to 25% back wages as an adequate compensation and
retirement benefits on per with the other 10 workmen. 37

The current position in law can thus aptly be summarised

as that being a constitutional provision, Article 142 can override any statutory
provision. But, in practice, the Court does not use its powers under Article 142 in
direct confrontation with any express statutory provisions applicable to the case at
hand. This is a self- imposed restriction but the Court can bypass the same if
equitable considerations demand.

Exercise of Article 142 in the absence of a legislation

35
AIR 2012 SC 2263
36
AIR 2014 SC 61
37
L. Parmeswaran V. Chief Personal Officer AIR 2008 SC (Supp.) 1311
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The Supreme Court has the power to issue directions under Article 142 where none
already exist and such directions shall be binding till such time as new rules are
enacted by the legislature on the subject. Thus it has been held that ample powers are
conferred on the Court under Articles 32, 141, 142 and 144 to issue necessary
directions to fill vacuum till either legislature steps in to cover the gap or the
executive discharges its role 38 .

The Court had in the famous Vishaka v. State of Rajasthan39 , formulated guidelines
providing for protection of women from sexual harassment at the workplace in the
absence of any enacted law on the same and the same are binding on all the courts
under Article 141. Thus where there is inaction by the executive, the judiciary must
step in, in exercise of its constitutional obligations to provide a solution till such
time as the legislature acts to perform its role by enacting proper legislation to cover
the field.

Conclusion-

Article 142 was introduced in our Constitution to serve the interests of justice. The
Supreme Court is the highest court from which no appeal lies. Its decisions are final
and binding. Thus this article was included in our Constitution with a view to ensure
that the interests of justice are paramount and in doing so the Supreme Court can
disregard any provision which prevents the court from performing its constitutional
obligations.

SC for the first time in its history appointed a Lokayukta after slamming the
“failure” of the constitutional authorities of the State to comply with its orders. A
Bench headed by Justice Ranjan Gogoi appointed former high court judge Justice
Virendra Singh as Uttar Pradesh’s Lokayukta after expressing its annoyance at how
the U.P. government failed to meet the Supreme Court deadline.No consensus had

38
Vineet Narain v. Un ion of India, (1998) 1 SCC 226
39
(1997) 6 SCC 241
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been reached among the three-member committee of Chief Minister, Opposition

Leader and the Chief Justice of the State High Court despite two rounds of talks.
Earlier on December 14, the apex court had rapped the U.P. government for not
appointing the Lokayukta despite its directions, saying it seemed that appointing
authorities have their “own agenda”.

The scope of Article 142 has often come up for discussion before the Supreme Court
and has received varied interpretations over the years. Beginning with Prem Chand
case wherein the Supreme Court restrained its powers and held that it cannot pass
any order under Article 142 which violates an express statutory provision to, V.C.
Mishra, In re case, wherein the Court held that Article 142 being a constitutional
power cannot be limited by any statutory provision to finally the position laid down
in Supreme Court Bar Association case20 wherein the Court sort of harmonised the
two extremes and held that even though statutory provisions cannot act as a
limitation on the Court's constitutional power under Article 142, the powers are not
meant to be exercised where such provisions exist. The move is thus towards
restricting as opposed to expanding the inherent power vested with the Supreme
Court under Article 142. It is indeed laudable that the judiciary has acted responsibly
by not (mis)using Article 142 to pass orders violating express statutory provisions.
However, the judiciary must always keep this option with itself to pass such an order
if interests of "complete justice" so demand. The court does rightly recognise that
the article by itself imposes no restrictions or limitations on the exercise of its
powers. Thus the cautious approach is laudable but this should not result in justice
being denied merely because a statutory provision exists. It is submitted that the
observations extracted above squarely apply for the interpretation of complete
justice.

133