Vol.1 - Indian Law Institute

Transcription

ILI Law Review
Vol. No. I
Issue No. I
Feb. 2010
EDITORIAL COMMITTEE
Editor-in-Chief
D. S. Sengar
Director
Executive Editor
Vishnu Konoorayar
Asst. Research Professor
Editors
Avijit Mani Tripathi
Slahuddin Ahmad
Sreeparvathy G.
Sridip Nambiar
Latika Vashist
Saadiya Suleman
Samreen Hussain
Jupi Gogoi
Anubha Dhulia
© The Indian law Institute, New Delhi-110001
ILI Law Review
Volume 1
February 2010
Issue 1
CONTENTS
ARTICLES
Paradigm of ‘Green’ Adjudication:
Developing Principles for Indian
Environmental Decision-Making in
Disputes Involving Scientific Uncertainty
Rethinking Reservation in Higher
Education in India
Atrocities on Dalits- A Human Rights
Perspective
Cybersquatting: Pits and Stops
NOTES
Freedom of Religion and Anti Conversion
Laws in India: An Overview
Triple Talaq: A Socio Legal Analysis
Concept of ‘Human’ vis-à-vis Human
Rights: An Analysis
Laws on Food Adulteration: A Critical
Study with Special Reference to the Food
Safety and Standards Act, 2006
COMMENTS
Acknowledging Accountability?
A Comment on Secretary General,
Supreme Court of India v. Subhash C.
Agarwal
A Comment on Shakson Belthissor v. State
of Kerala and Another
… Sridip Nambiar
1
… Mehbubul H. Laskar
25
… Ajay
… Slahuddin Ahmed
54
79
… Saadiya Suleman
… Samreen Hussain
106
129
… Sreeparvathy G.
151
… Anubha Dhulia
163
… Avijit Mani Tripathi
189
… V. Elan Chezhiyan
198
Publication Policy
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
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ILI Law Review
1
PARADIGM OF „GREEN‟ ADJUDICATION: DEVELOPING
PRINCIPLES FOR INDIAN ENVIRONMENTAL DECISIONMAKING IN DISPUTES INVOLVING SCIENTIFIC
UNCERTAINTY
Sridip Nambiar 
Abstract
This paper explores the need for incorporating principles of „ecological justice‟ in
environmental adjudicatory mechanisms in India. It calls for a reinvention of
approaches, towards creation of institutional arrangements and of individual
decision-makers within such arrangements. The need for a reinvention is analysed in
the background of a proposal to constitute a National Green Tribunal to exclusively
deal with environmental disputes. Part I portrays the context of risk society in which
assessment and evaluation of environmental risks gain importance. Part II describes
the efforts of the judiciary in handling complex environmental matters within such
context. It is argued that, as administrative concerns are entrenched in
environmental disputes, specialist tribunals with a combination of judicial, scientific
and administrative expertise may have better institutional competence
comparatively. Part III highlights the need for incorporating the principle of
ecological justice in any alternative institution and at the same time ensuring that
such institutions have the same kind of independence, reliability and fairness as a
judicial set-up in its procedures. Part IV advocates reinvention of attitudes on the
part of individual decision makers, whether judicial or expert that align with the
concept of environmental ethics. It is concluded in Part V that a re-integration of
nature is urgently required in our theoretical discourses and public institutions. Such
integration is possible only if we develop indigenous principles of ecological
conservation.
I. Risk Society/Where we are now.
WE LIVE in a risk society. Risk has become ‗the single point upon
which contemporary societies question themselves, analyse
themselves, seek their values, and, perhaps, recognise their limits.‘1 A
risk society is characterized by a lack or impossibility of external
attribution of hazards. The focus of governance would be on the basis
of decision-making - it is about how we govern rather than the

LL.M. II Semester (Two-Year Course), Indian Law Institute, New Delhi.
Elizabeth Fisher, ―Risk and Environmental Law‖, in Benjamin J. Richardson and
Stephan Wood (eds.), Environmental Law for Sustainability 99 (2006).
1
2
Paradigm of „Green‟ Adjudication
[Vol. 1 : 1
outcomes of such governance. Ulrich Beck, author of Risk Society:
Towards a New Modernity poses the central question for a risk society
to be – how to feign control over the uncontrollable?2 Society has
come to understand itself and its problems in terms of risk
management, because of its performative nature – it produces the
effect that it names.3 Governance in this context would be based on
―making an uncertain and unknowable future amenable to risk
management.‖4
The concept of risk comprises of the normative judgment of a
possible event or condition as adverse and the probability that it will
come about.5 The main features of decisions concerning risk are (i)
factual - measurement or estimation of risk and (ii) normative, i.e its
acceptability – whether those who bear the risk consent to bear it and
whether they themselves reap the benefit.6 However, risk analysis
brought with it difficult questions because acceptability, which is a
social phenomena, is not easily or almost never quantifiable.7 As the
general tendency would be to favour risk aversion, consent required
for taking the risk cannot be implied automatically in any case. A
decision on risk management depends on a consideration of various
interlocking factors. The debates on risk are thus centred on the
question – how safe is safe enough?
Any decision on risk carries with it various challenges. The
primary issue is regarding the definition of risk and risk assessment.
As the concept of risk, inter alia, is a regulatory concept, sociopolitical factors exercise substantial influence. There are definitions
that restrict its scope to hazard identification and characterisation.8
There are other definitions which widens its scope to include risk
assessment, risk management and risk communication.9 Though risk
assessment seems to be the exclusive domain of scientists (in
2
The aspects of risk in a different scenario are dealt in Louis Amoore and Mariekede Goede (eds.), Risk and the War on Terror (2008).
3
Ibid. The element of risk can be analysed with respect insurance sector, financial
markets and even ‗war on terror‘ (as is shown in Supra note 2).
4
Ibid.
5
Lawrence C. Becker & Charlotte B. Becker, Encyclopedia of Ethics 1513 (2001).
6
Ibid.
7
Similar to the opposition to hedonistic ―pain and pleasure‖ theory of utilitarianism.
8
Supra note 1.
9
Ibid.
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ILI Law Review
3
environmental matters) and evaluation, that of policy makers, they
may not be water-tight compartments. The factual and evaluative
components may be intertwined in some cases rendering ineffective
any division of labour in the decision-making process. Moreover,
when persons who are potentially at risk do not exist (for example,
future generations), the question arises whether a moral obligation is
there to include them in the evaluation process. Complications arise
due to the fact that ―the use of risk is not neutral, and understanding
problems in terms of risk has a powerful impact on how those
problems are characterised and solved.‖10
These challenges find contemporary importance in environmental
problems, which ‗are found at the intersection of ecosystems and
human social systems‘.11 These problems present a scenario where we
are expected to define our understanding of various aspects of risk
analysis. Though science plays a major role in our understanding of
the physical world, it is extremely limited in some cases owing to
scientific uncertainties – future outcomes of actions are inherently
unpredictable.12 Uncertainty leads to various problems like the fallacy
in presuming that ‗no evidence of harm means no harm‘,13 that
scientific assessments are limited in predicting the consequences of
actions, that there is no way of collecting the information to assess
future impacts, and that there are ontological limitations on the
capacity to predict future outcomes.14 Further, environmental problems
are ‗polycentric‘15 in nature owing to possibility of inclusion of a wide
range of parties who might be interested in its outcome.
State has an important role to play as concepts of risk, risk
assessment and risk management can be better understood by their
characterisation by in policies or legislations. The approaches inherent
in a decision on risk by any agency may be broadly classified into –
10
Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (2007).
Supra note 1.
12
Ibid.
13
Fisher in supra note 10 quotes Wynne as saying, ―We don‘t know what we don‘t
know‖.
14
Supra note 1.
15
Lon L. Fuller, ―The Forms and Limits of Adjudication‖, 92 Harvard Law Review
353 (1978). The term is Michael Polnyi‘s. Where a dispute involves a multiplicity of
interlocking and variable factors, decision on each which would presuppose decision
on all the others, it can be called polycentric.
11
4
[Vol. 1 : 1
one, a scientific or expert approach to risk as risk is essentially a
scientific concept and the other, which argues that risk evaluation is
inherently value-laden (―its about how communities collectively wish
to live their lives‖).16 The latter approach advocates a democratic
approach which considers ethical values and promotes liberal
autonomy. When resolving risk-based issues, these approaches need
not be easily distinguishable – there might be overwhelming scientific
opinion on the potential harm of an activity, but the community may
be willing to accept the risk in view of the benefit that it guarantees.
Such issues and conflicts between these approaches are described by
Fisher as ‗science/democracy dichotomy‘17.
The role of law against the background of this conflict may appear
to be merely instrumental. It is expected to support either the scientific
testimony (by seeking assistance from scientific experts) or democratic
considerations (for example, by encouraging public participation for
reaching a solution). However, Fisher disputes the merely instrumental
role attributed to law on the following grounds- (i) such disputes are
not conflicts with facts on one hand and values on the other, but
disagreement over the relevant facts or existing knowledge, (ii) science
and democracy are not necessarily different arenas of activity, as their
interrelationship may change with context and (iii) it tends to minimize
the role of legal discourse, which could constantly shape our
understanding of legitimate risk related decisions.18 Law not only
clarifies the foundational concepts of the discourse, but also helps in
describing the roles various actors have to play when carrying out the
functions entrusted to them. These foundational and functional roles
makes law a vital and vibrant part of risk management in
environmental disputes.
The broader issue of environmental governance is thus a matter of
how our decision-making process ought to be structured – how to give
effect to the functional role of law? Pre-supposition of a dispute can be
said to be the starting point of a judicial process. A judge decides on
the facts of the dispute as brought to it by the parties in accordance
with the law of the land. However, governance in the context of risk
16
Supra note 10.
Ibid.
18
Supra note 10 at 17.
17
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management may seek a refined approach from the ‗traditional‘ judge.
He has a more collaborative, varying and participatory role in the
various aspects of assessment, evaluation and characterization of risk.
Fisher states four reasons for justifying delegation of risk evaluation to
administrative decision makers – (i) socio-political aspect of risk
analysis (for example, setting pollution standards) cannot be fulfilled
by legislations, (ii) it requires collection, classification and
interpretation of information for which legislature may not have time,
(iii) expertise, not necessarily scientific, is a highly necessary input
and (iv) communication between those involved in decision-making to
decide on various modes of collection and dissemination of
information can be achieved only by administrative agencies.19
However, such evaluation is not the sole component of risk
management. An adjudicatory body may be entrusted with duties of
reviewing decisions taken after considering complex technical matters.
Thus, any adjudicatory mechanism would form a part of the
environmental governance structure, every link of which ought to
understand, analyse and decide on issues of risk management. Such
interlinkage of judicial, scientific and administrative aspects leads us
to think of alternative arrangements.
Ministry of Environment and Forests (‗MoEF‘) has brought out a
proposal for setting up a National Environment Protection Authority
(‗NEPA‘), which will be an autonomous statutory body responsible for
regulation, monitoring and enforcement of environmental matters.20
The National Green Tribunal (‗NGT‘), the establishment of which is
also in the pipeline, will serve as the adjudicatory mechanism for
decisions of the authority.21 That means, after establishment, NEPA
will carry out the role of risk regulation and NGT will be responsible
for what Fisher calls ‗administrative constitutionalism‘.22 In other
words, NGT may be part of a structure which supervises risk
management in the country. What should be the role of such a
tribunal? What ought to be the nature of its adjudicatory process?
19
Ibid.
A discussion paper dated Sep. 17, 2009 was issued for eliciting public comments.
21
National Green Tribunal Bill, 2008 has been referred to a parliamentary standing
committee.
22
Supra note 10.
20
6
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II. Indian Environmental Decision-Making/What we have done.
Before we discuss the role of the tribunal and decision-makers in this
context, the current Indian practice of handling scientifically sensitive
environmental issues has to be understood. This is for satisfying
ourselves that a change may be necessary on a comparative level. As
Lord Woolf asks, are the judiciary environmentally myopic?23
Environmental legislations were enacted on the basis of the shared
legislative authority,24 and other constitutional provisions.25
Environmental protection was not mentioned in the original
Constitution and was later introduced as a directive principle of state
policy26 and as a fundamental duty27 by way of an amendment. Every
citizen is entrusted with a duty to protect the environment. The
purpose of the amendment was to ensure that the State and citizens are
guided by environmental considerations when pursuing any activity.
The conspicuous absence of ‗right‘ to environment, even after the
amendment may be noted. But, the Bhopal gas tragedy case reminded
the court that an unenforceable directive principle and inactive
citizenry could lead to governmental inaction and serious damage to
the public. This called for relaxation of norms for entertaining disputes
relating to environment, which would in turn encourage participation
by concerned individuals and keep a check on unrestrained
governmental power. As a first step, right to a healthy environment as
a right was recognized in Subash Kumar v. State of Bihar.28 It was
23
Lord Woolf, ―Are the Judiciary Environmentally Myopic?‖, 4(1) Journal of
Environmental Law 1(1995). The article was discussed in Nayudu I, discussed below
at infra note 37.
24
Constitution of India, art. 252.
25
Id., art. 253.
26
Id., art. 48A, inserted by Constitution (Forty-Second Amendment) Act, 1976
section 10 (with effect from Jan. 3, 1977), states that, ―State shall endeavor to protect
and improve the environment and to safeguard the forests and wildlife of the
country.‖
27
Id., art. 51A (g) states that it shall be the duty of every citizen of India ―to protect
and improve the natural environment including forests, lakes, rivers, and wildlife,
and to have compassion for living creatures.‖
28
(1991) 5 SCC 598.
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ILI Law Review
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then included within the ambit of the ever-growing ‗right to life‘.29
The scope of right to environment within the right to life was then
developed to include right to clean water30, clean air31 etc. The
recognition of these rights coincided with the development of public
interest litigation and relaxation of locus standi principle, which led to
an increase in the volume of litigation.32 Courts became more
confident in dealing with and governing environmental disputes. In
most cases, governmental apathy was noted as the major cause for
disputes. The activist court began to actively involve itself in the
environmental governance of the country on the basis of its
interpretation of the Constitution and lack of directional policy. The
shift from ‗duty‘ to ‗rights‘ created by the judiciary, influenced future
judicial thought in a tremendous way. Though, in many cases,
environmental disputes were resolved by reference to common law
remedies, like actionable nuisance,33 negligence and strict liability34,
public interest litigation prompted the apex court to assume a role it
had never even thought it could possess.
Today, the Indian environmental decision-making has evolved to
become an ‗occupied field‘35 of Indian judiciary. In spite of
confessions of its inability to decide on ‗complex scientific matters‘36
and constant requests for setting up a specialised body37 (whether
courts or tribunals), it has forayed into various aspects of environment
management. Environmental laws were mandated to be strictly
enforced.38 It has affirmed that the principles of ‗polluter pays‘39,
29
Virender Gaur & Ors. v. State of Haryana & Ors., (1995) 2 SCC 577.
Mrs. Susheta v. State of Tamil Nadu & Ors., (2006) 6 SCC 563.
31
Murli Deora v. Union of India, (2001) 8 SCC 765.
32
Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and
Bangladesh (2004).
33
Infra note 43.
34
Mukesh Textile Mills Pvt Ltd v. H.R. Subrahmanya Sastri, AIR 1987 Kant. 87.
35
Usually referred to in the context of constitutional interpretation.
36
In M.C Mehta v. Union of India, (1986) 2 SCC 176, popularly known as ‗oleum
gas leak‘ case. The case dealt with the aspect of permission to continue for a factory,
from which there was a fatal leakage of hazardous substances. Experts suggested
relocation as the only measure to completely eliminate the risk.
37
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P.
Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718 (hereinafter referred to
as ‗Nayudu I‟),
38
ICELA.
39
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
30
8
[Vol. 1 : 1
‗sustainable development‘40, ‗public trust doctrine‘41 and
‗intergenerational equity‘42 are law of the land, though these principles
have not been incorporated into any legislative framework. 43 Whether
incorporation of unratified international obligations in binding judicial
decisions is advisable is a different aspect. But, the point to note here
is that, our courts used various strategies to evolve a mechanism within
the existing court structure to deal with such issues.
This mechanism pervaded, within no time, the environmental
governance scene in the country. Wide-ranging directions were given
for reducing vehicular pollution,44 preventing river pollution,
relocating stone-quarries45 etc. Courts refused to entertain the ground
of insufficiency of funds or staff46 as a reason for not performing
State‘s obligations,47 without attempting at even a preliminary
financial due-diligence exercise. It initiated the practice of a
continuing mandamus,48 constantly supervising and suspecting
executive action. It appointed experts and committees to ascertain in
most cases whether clearance has been given by the executive
authorities based on proper application of mind. Any proposed
activity had to thus obtain the formal clearance under the concerned
statute or if it is a government project, from the concerned ministry
and in addition to that, they had to face the possibility of determination
of validity of their proposal by the court itself. It was held that the
court must not reject an ecological case on the ground that it concerns
matters of policy and must examine whether appropriate
environmental considerations have been taken care of and
irrelevancies excluded by the decision-making authority.49
40
Goa Foundation v. Diksha Holdings Private Limited, (2001) 2 SCC 97.
M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213.
42
Intellectual Forum, Thirupathi v. State of A.P. & Ors., (2006) 3 SCC 549.
43
Vellore Citizen‟s Welfare Forum v. Union of India, (1996) 5 SCC 647. Though
India is party to various conventions which endorse the principles, affirmation
without any policy framework may not be undesirable. However, there are various
aspects of these principles which are disputed which the court has never discussed.
44
In the National Capital Region in M C Mehta v. Union of India, (1992) 3 SCC 256.
45
Court on its Own Motion v. State of Himachal Pradesh, (1994) For LT 103
46
B.L. Wadehra v. Union of India, AIR 1996 SC 2969.
47
Municipal Council, Ratlam v. Vardhichand & Ors., (1980) 4 SCC 162.
48
K. N. Chinnappa & T.N. Godavarman Thirumulpad v. Union of India, AIR 2003
SC 734.
49
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.
41
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It is when analysing the validity of clearances for projects that the
courts are faced with the task of interpreting the technical aspects of
environmental issues. Some judges refused to decide on such issues,
considering it the domain of the executive branch. It was held that a
court will decline to interfere in the exercise of jurisdiction where the
State Board is alert to the matter.50 But, when it perceived serious
threat owing to lack of proper governmental action, it had to seek out
new ways of dealing with the problem. The court had to seek
assistance from experts in the particular field and analyse whether a
proposed activity was environmentally benign. Bhagwati J in the
Oleum Gas Leak case (1986) used the method of appointing expert
committees for assessing the extent of harm to the environment. It is
worthwhile to note that it is the first case that stressed the need for
‗neutral scientific expertise as an essential input to inform judicial
decision-making‘.51 Setting up of environment courts, on a regional
basis with one ‗professional‘ judge and two experts was also
suggested.52 The court began to realize that complex environmental
data required more serious attention and skilled manpower for proper
appreciation.
In some cases, experts were not only appointed for assessing the
risk factor, but also to ‗report to the court on the adequacy of pollution
control devices installed by an industry, the damage caused by water
pollution and the cost of restitution‘.53 Since M.C. Mehta, appointment
of environmental experts when dealing with disputes has been in
vogue. The method of analysis of data in some cases required many
months in most cases. This meant that the court had to devote more
time to those cases because the expert reports were found to be
insufficient in some and contradictory in some others. The time
constraints and exclusivity of the nature of disputes prompted setting
up of ‗Green benches‘ in various high courts in the country.54
50
Navin Chemicals Manufacturing & Trading Limited v. New Okhala Industrial
Development Authority, (1987) All LJ 13.
51
MC Mehta v. Union of India, (1986) 2 SCC 176, para 22.
52
Id., para 23. Such experts, it was said would be from an Ecological Sciences
Research Group.
53
Pravinbhai Jashbhai Patel v. State of Gujarat, (1995) 2 Guj LR 1210.
54
A division bench of the Supreme Court comprising of Justice Kuldip Singh and S.
Saghir Ahmed directed Calcutta high court chief justice to constitute a special
10
[Vol. 1 : 1
In Godhavarman,55 the Supreme Court made further attempts to
manage and administer environmental matters, when it constituted a
Central Empowered Committee to monitor implementation of their
orders and place any non-compliance case before the court.56 The main
point to be noted is that though committees were appointed for
assessment of risk, the courts would evaluate the report and reach its
own finding. In Nayudu I,57 it was held that the opinion rendered by
any authority is subject to the approval of the referring court. The
scientific referral thus becomes a mere formality and the referring
court became an authority. There are cases where the contradictions in
the scientific expert‘s reports were observed, to the extent that court in
a case said, ―from an institution of this repute, it was not expected that
a report of this kind would be submitted.‖58 However, whether
complete judicial deference is desirable is another issue. In Society for
Protection of Silent Valley v. Union of India59, the court observed that
it is not their duty ―to evaluate these considerations again as against
the evaluation already done by the government.‖ Further, in Tehri
Bandh Virodhi Sangarsh Samithi v. State of Uttar Pradesh60, the court
accepted the government version on the aspect of the safety of a
project on the basis of expert reports that the government had
produced. However, reports which established a contrary opinion had
also been submitted by the petitioner, the details of which were not
analysed by the court.
As far as Indian environmental law is concerned, we have
numerous case-specific orders but no principles or guiding standards
have been evolved to improve our understanding of risk. The only
visible aspect is the environmental management taken up
division bench to hear environment related petitions for the first time in the country.
For more details, see www.indiaenvironmentportal.org.in
55
(2002) 5 SCALE 6.
56
The committee was directed to be comprised of nominees of Ministry of
Environment and Forests and members of non-governmental organizations. These
appointments were held to be made in consultation with the amicus curiae in the
case.
57
Supra note 37.
58
Rajendra Singh and Ors v. Government of NCT of Delhi and Ors, W.P (c) Nos.
6729 and 7506 of 2007, decided on Nov. 3, 2008.
59
(Unreported) OP Nos. 2949 and 3025 of 1979, discussed in P. Leelakrishnan,
Environmental Law Case Book (2004).
60
1990 (2) SCALE 1003.
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unhesitatingly by the courts. It is this attempt to create a parallel rulebased structure using the machinery of public interest environmental
litigation that raises doubts about ordinary courts‘ institutional
competence and compels us to look for alternatives. This was stressed
in Nayudu I, which prompted the law commission to suggest setting up
of ‗environmental courts‘ in the country.61
However, it cannot be concluded that ordinary courts are incapable
of handling environmental disputes. However, it could be inferred
from the decisions that administrative matters are entrenched in any
environmental decision making process.
Better institutional
mechanisms that combine the judicial and administrative activities on
a comparative level may be possible.
In any institutional mechanism that has delivery of justice as its
primary aim, decision makers with ethical ingenuity are highly
desirable – especially when analysing rival scientific opinions in the
context of risk acceptability. If we can draw out the contours of this
individual dimension within an institutional structure, we can have
more clarity on the ‗total‘ functioning of a system.
To conclude, Indian judiciary‘s efforts to revitalize environmental
discourse through creative decisions are commendable, but it also
reminds us of the urgent need to rethink our strategies in dealing with
these problems. The problem is that even when judges review ‗quite
good‘ evidence, there are numerous opportunities for errors.62
Moreover, increased recognition of the importance of international
environmental law institutional recognition at international level has
not had a corresponding impact on the modus operandi at the
municipal level.63 An essentially universal concern has thus been
politically delimited – there is no platform for a ‗[t]hink global, act
local‘ approach. Thus, our problems are a combination of institutional
incapacities existing in the country and a lack of conceptual clarity at
the decision making level owing to inadequacy of directional policy64.
61
186th Report on Proposal to Constitute Environment Courts.
Carl F. Cranor, Toxic Torts – Science, Law and the Possibility of Justice 205
(2006).
63
Most discussions are marred by political undertones. For example, climate change
debate.
64
The National Environment Policy, 2006, it is argued, was prepared in haste and
did not bring in effect the principles enumerated in the documents enumerating
62
12
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II. Institutional Challenges/what can be done.
Re-invention in approach, along with political will and use of science
and technology are deemed to be part of any plan that seeks to
minimize the challenge of entrenched vested interests that are found in
any governmental process. This part tries to analyse whether we can
re-conceptualise the functioning of our institutions on the basis of
certain definite principles. Such a conceptual clarity goes a long way
in rationalising institutional mechanisms.
One of the main problems that we face is the definition of the
relationship between man and nature or whether it can be defined. 65
The very word ‗environment‘ denotes ‗that which surrounds us‘,
which is apart from people.66 The growth of environmental law has
been shown to be driven by immediate human self-interest, for public
health reasons. As Holder observes, ―the utilitarian rationale of the law
was to maximize nature‘s resources to ensure future exploitation.‖67
It is argued that environmental law should be informed by
ecological justice in much the same way as law in general is informed
by justice.68 Most theories of justice deal with distribution of goods
and maximization of welfare. But, whether these theories can include
man‘s relationship with the natural world is a debatable issue. There
are two broad approaches – one is to keep ethics and justice separately
(or in other words, asserting that relation with environment is a matter
of ethics and morality and not within the domain of law and justice)
and the other is to re-conceptualise justice in the light of what is
termed as ‗environmental ethics‘.
Environmental ethics, as a subject matter of philosophy, is based
on two premises – one, it questions the assumed moral superiority of
international obligation. See Furqan Ahmad, ―Legal Parameters of National
Environment Policy, 2006‖, in M. S. Bhatt et al, Problems and Prospects of
Environment Policy – Indian Perspective (2008).
65
Jane Holder, ―New Age: Rediscovering Natural Law‖, in Michael Freeman (ed.),
53 Current Legal Problems 151 (Oxford Univ. Press, NY, 2000).
66
Ibid.
67
Ibid.
68
Klaus Bosselmann, ―Ecological Justice and Law‖, in in Benjamin J. Richardson
and Stephan Wood (eds.), Environmental Law for Sustainability 129 (2006).
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ILI Law Review
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human beings to other species on the earth69 and two, it investigates
the possibility of rational arguments for assigning intrinsic value to the
natural environment and its non-human contents.70 It grew as a
reaction to the anthropocentric conception of environmental law and is
sceptical of the ways in which we implement our ‗solutions‘ for
addressing environmental issues.
Another theory which is worthy of observation here is ‗Deep
Ecology‘, according to which humans are more than just dependent on
nature – humans are nature, and attempts to dominate nature alienate
humans from themselves. It is based on ―a comprehensive eco-centric
world-view and way of life based on the equality of all forms of life
and the rejection of all forms of domination, especially human
domination of nature.‖71 Supporters of this movement advocate
holistic (deep, spiritual) and ―wholistic‖72 (integrated) individual and
societal actions with some decentralization and individual autonomy.
It stresses the direct relationship between the individual and nature,
unmediated by society, and the responsibility of the citizens for the
ecological state of the earth.73 Eco-centrism permits limited role for
anthropocentric actions, though its essential philosophy is same as
Deep Ecology. This is why Bosselmann argues that eco-centrism
neither can be imposed nor will it emerge naturally from a discoursive
democracy.74 Eco-centrism needs to be reasoned to make sense,
although making sense does not necessarily emerge from reasoning in
the context of a liberal democracy.75 This implies that an eco-centric
approach can be acknowledged only on a deeper reflection on the
impact of anthropocentric thought and need for an eco-centric
approach. .
The various approaches relating to eco-centrism attempt to
integrate the non-human world in environmental decision making. It
69
It finds contemporary relevance in the debate on release of genetically modified
organisms.
70
Devadatta Gandhi, ―The Limits and Promises of Environmental Ethics: EcoSocialist Thought and Anthropocentrisms Virtue‖, 31 Environs Environmental Law
and Policy Journal 35 (2007).
71
Supra note 68.
72
Supra note 62.
73
Supra note 57.
74
Supra note 68.
75
Ibid.
14
[Vol. 1 : 1
can be pursued through incorporation in ethics at the individual level
or justice at the institutional level. To become a truly ecological
concept, justice needs to reach out into the non-human world.76
These conceptual issues are significant only when there are
institutional mechanisms capable of helping individuals work with an
eco-centric dimension. However, realistically, we need to consider this
aspect in the context of what MoEF calls ‗institutional fatigue‘ – why
do we need another institution?77 The financial implications and the
probability of any new institutions adding on to the pile of virtually
non-functional and unproductive institutions in our country may make
us hesitant to even think about another institution. Moreover, in the
case of environmental governance institutions, it is paramount to
consider whether we have sufficient capacity to understand and
implement concepts of ecological justice.
Only if we acquire clarity over the concepts underlying the need
for a new institution can we hope of not pushing one more institution
into the already congested tribunal structure. As discussed earlier, a
new body may be desirable because primarily, environmental disputes
are entrenched with administrative matters. We have understood from
section I that risk evaluation is better left to administrative bodies (like
proposed NEPA or pollution control boards). The question then is
about the role of ‗risk adjudication‘. As we have understood the
difficulties in achieving effective performance through our traditional
structures (with the MoEF acting as administrator through pollution
control boards and Supreme Court as super-administrator), a new
authority is desirable.78 But such an authority may be created only
after proper discussion of the respective roles of the Ministry, NEPA
and NGT.
76
Ibid.
Discussion paper on NEPA at 10.
78
In the Discussion Paper on NEPA, which would be an autonomous statutory
authority, MoEF proposed three models involving: (1) MoEF (which would grant
regulatory clearances), a new National Environment Monitoring Agency (for
checking compliance and enforcement), and NGT for adjudication; (2) MoEF (for
legislation and policy), a full fledged NEPA (that subsumes pollution control boards
and has technical, regulatory and compliance responsibilities) and NGT; (3) MoEF,
NEPA (with pollution control boards reporting to MoEF and having regulatory and
compliance responsibilities), and NGT ; (4) MoEF, NEPA (with a separate pollution
control board reporting to it) and NGT.
77
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What we are concerned with in this paper is with the
‗internalisation‘ of goal of ‗ecological justice‘ in administrative
adjudication, i.e., what NGT may be asked to perform. One important
step towards such internalisation may be a law that makes
sustainability the law of the land.79 This would mean combining the
functions of resource management (land use, town planning etc) and
adjudication of environmental disputes in the same body.80 In the
present discussion, that would mean empowering NEPA to not only
involve in decision-making on risk management but also on policies
that deals with allocation and distribution of resources. The outcome
of the discussion paper on NEPA is still awaited. However, it cannot
be doubted whether these moves are welcome. When we are defining
the role of NGT, it should be kept in mind that its activities would take
place alongside NEPA. Whatever be the nature and roles of the
different bodies in the structure, the whole process is collaborative.
Adjudication in the traditional sense may not give us the desired
results. Whatever be India‘s decision in this respect, any adjudication
in future on environmental matters would be based on the decisions of
pluralistic administrative agencies.81
Law‘s role in the context of increasing importance of public
administration is significant – it keeps a check on accountability and
provides an arena for disputing the role and nature of public
administration.82 Fisher characterizes the role and nature of law in this
context as a form of ‗administrative constitutionalism‘,83 in the light of
79
New Zealand has made an almost successful attempt with its Resource
Management Act. However, there are other jurisdictions, like Indiana that has carried
out successful experiments with administrative adjudication, though sustainability
has not been incorporated in any legislation. For more on Indiana experiment, see
Lori Kyle Endris & Wayne E. Penrod, ―Judicial Independence in Administrative
Adjudication: Indiana‘s Environmental Solution‖, 12 St. John‟s Journal Legal
Commentary l25 (1996).
80
Australia has a Land and Environment Court.
81
The necessity and various technical aspects of such legislation are outside the
scope of this paper. For a discussion on the role of State, see Mary Christina Wood,
―Advancing the Sovereign Trust of Government to Safeguard the Environment for
Present and Future Generations (Part I): Instilling a Fiduciary Obligation in
Governance‖, 39 Environmental Law 43 (2009).
82
Supra note 10.
83
Ibid. Fisher states that ―it reflects, however, the more traditional concepts of
constitutionalism, which is that constitutionalism is concerned with the constituting
16
[Vol. 1 : 1
the two paradigms that Fisher emphasizes on – (i) the rationalinstrumental paradigm (where public administration would be required
to strictly apply legislative will), and (ii) the deliberative-constitutive
paradigm (where public administration will be granted discretion to
address specific problem-solving situations).84 It may be a
combination of these paradigms in the NGT that could improve its
efficiency.
In this scenario, it is to be ensured that administrative adjudication
carries the same indicia of reliability and fairness found in other
judicial settings. In India, with respect to NGT, this would mean the
following:
(a) The Constitution of NGT - There are two aspects of constitution
that are relevant - nature of constitution and membership. Sitting
and retired high court and Supreme Court judges are eligible to be
its members. The nature of disputes that the NGT may be called
upon to decide may not necessarily be from similar areas in which
the members have an expertise in.85 The nature of disputes may
comprise of a variety of areas. The option here is to either create
ad-hoc tribunals for disputes (which may be location-specific) or
vest in the NGT powers to seek assistance of experts or
committees if it requires.86 This may appear to be similar to the
practice we have today of green benches seeking help from expert
committees. However, such green benches have today become
methods for administration of environmental resources. It is not
desirable to vest in our courts the duty to manage our neither
resources, as they may not have the time or resources to effectively
conduct it. Membership is another important aspect. The expert
member can be a person with administrative experience in
and limiting of government so as to ensure its principled operation where there are
divergences of opinions as to what this means and entails‖
84
Supra note 10.
85
As pointed out in the legislative brief brought out by PRS Legislative Research,
our experience with the National Environment Appellate Authority shows that it is
difficult to find people with the prescribed qualification. The Delhi High Court had
to issue directions on the basis of a petition for appointment of a member using its
powers under Article 226 of the Constitution in Vimal Bhai v. Union of India, 158
(2009)
DLT
477.
The
brief
can
be
accessed
at
http://www.prsindia.org/uploads/media/Green%20Tribunal/Final%20Version%20%20National%20Green%20Tribunal%20Bill.pdf.
86
Clause 4(2) of the NGT Bill provides for such consultation.
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ILI Law Review
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environmental matters in governmental or state level institutions.87
This would mean that the person responsible for clearances can at
some other point of time be responsible for deciding on its
validity.88 The provisions relating to appointment of judicial
members brings with it institutional memories of the ―collegium‖
debate and the post-retirement rehabilitation debate. If we want to
show that we have learnt from the mistakes of the past, we should
try and rework our processes. In the case of appointments, an
independent appointing body may be a solution.89 Subjecting the
selection process to public scrutiny can also be an option.90
(b) Powers of Review - It is better to define the nature of review
power that the NGT will be carrying out. If the nature of the power
is strongly prescribed, there is lesser scope of interference from the
appellate courts. Many jurisdictions have developed newer kinds
of review power. Australian and New Zealand environmental
courts are vested with the power of de novo review or merits
review. It decides the ultimate merits of the decisions it reviews on
evidence that is adduced anew before the court. It means that the
judge has the power to place himself in the position of the primary
decision maker and consider all relevant evidence before taking the
decisions. There is no presumption that the local authority‘s view
is correct. The scope of review is thus not limited to issues of law
but also issues of fact as the review involves both remaking and
reviewing of the earlier decision. It has been argued that, contrary
to popular perception that merits review lacks legal reasoning;
merits review has acquired sufficient ‗legal‘ content over time and
has been even considered as valuable precedents.91 It should also
be noted that merits review is not a single concept but can refer to
a range of review powers. In environmental matters, it is desirable
87
Clause 5(2)(b) of NGT Bill.
Indiana experience has some lessons for us. ‗Hearing officers‘ recommended
language at one stage and reviewed its meaning in another stage. Later they were
prohibited by statute from participation in investigation or enforcement activities.
89
The Judicial Appointments Commission in United Kingdom may be a model.
90
As argued in Armen Rosencranz & Geetanjoy Sahu, ―National Green Tribunal Bill
2009: Proposals for Improvement‖, 54 EPW 10 (2009).
91
Elizabeth Fisher, ―Administrative Law, Pluralism and the Legal Construction of
Merits Review in Australian Environmental Courts and Tribunals‖, in Linda Pearson,
Carol Harlow et al, Administrative Law in a Changing State (2008).
88
18
[Vol. 1 : 1
to have an inquisitorial rather than an adversarial proceeding, in
view of the general interest involved.
(c) Finality of order - Clause 21 states that every order of the tribunal
under the Bill would be final. If NGT is given the power of review
similar to merits review, it would be bearing full responsibility for
exercising discretion. Appeal from its decisions shall not be
allowed, unless an issue of law is involved. The position of NGT in
Indian judicial hierarchy is indeed interesting. It would be having
the assistance of a Supreme Court judge and a high court judge (in
either cases, sitting or retired). This means that at least technically,
it would have a combined competence of Supreme Court and high
court. Any adjudication by such a body will necessarily have to be
considered seriously. The aspect of finality of the order must be
seen in this context. Appellate courts (high court and Supreme
Court) have an important role to play in avoiding questions relating
to technical issues in the dispute. Even if there is an allegation of a
perverse finding of facts, appellate courts should ask NGT to
review its decision, without setting out to solve it. However, as the
constitutional powers of review are expanding, it is better to seek
other ways of internally improving the system. Programmes to
educate judges (not only on ‗science and law‘ complexities but
also on economic theories) must be taken up.
(d) Jurisdiction - Clause 14 of the Bill provides for jurisdiction of
NGT, which is triggered only when the Acts relating to
environmental protection and pollution are involved. However, as
risk assessment and evaluation may be done on the basis of a
governmental policy, the NGT could be given the power to review
national policies relating to environment. It would have the
necessary expertise and it could also act as a check on the policy as
such.
(e) Wide-range of participation - NGT must be empowered to seek
the assistance of experts and appoint committees for their opinion
on the issues before it. It should also have the power to consider
applications for representation before the tribunal (from
individuals or associations who claim that they might be directly
effected by the decision of the tribunal), so that a wide range of
opinions may be considered. The NGT Bill vests the central
2010]
ILI Law Review
19
government with powers to make rules concerning the persons
who shall be entitled to appear before the tribunal.92
(f) Informal proceedings - The nature of proceedings should
necessarily be informal, participatory and that which considers
public interest. Though precautionary principle vests burden of
proof on the project proponents, it should not be a strict mandate.
Burden of proof requirements ought to be informal.93 In a case
decided by the New Zealand court, it was held that late submission
of evidence is permissible, though it was unfair to the opposing
party. NGT can supervise alternate dispute resolution procedures
like arbitration, conciliation and mediation to provide expeditious
remedies. This would make the functioning of the tribunal more
‗user-friendly‘.94
(g) Principled approach - There are various principles of international
environmental law that have an ecological approach, like
precautionary approach, sustainable development, common
concern for mankind, common but differentiated responsibilities
and respect for biodiversity. It is important that the precautionary
principle, which is arguably the most significant principle as far as
scientific uncertainty is concerned, is treated as the prime
directional principle within the system. But, its nature and extent
ought to be translated in clear language. The principle states that
Where there are threats of serious or irreversible damage,
lack of full scientific uncertainty should not be used as a
reason for postponing measures to prevent environmental
degradation. 95
This principle is relevant for both administrative and adjudicatory
decisionmaking. Sustainable development is another principle
which ought to guide decision-making at all levels.
92
Clause 4(4)(a) of the NGT Bill.
Bret C. Birdsong, ―Adjudicating Sustainability: New Zealand‘s Environment
Court‖, 29 Ecology law Quarterly 1 (2002).
94
International Framework for Court Excellence mentions ‗user satisfaction‘ as a
hallmark of court proceeding.
95
Principle 15 of Rio Declaration of Environment and Development, 1992.
93
20
[Vol. 1 : 1
(h) Access to information - Promotion of understanding of
administrative adjudication so that public faith is restored. Citizens
must have easy access to information available with the courts.96
(i) Technology as tool - Science and technology should be used as
tools for adjudication, rather than the ends. This would mean that
NGT must have the capacity to innovate.
The suggestions stated above should not be treated as conclusive,
but directional. There are various issues which relate to setting up of
tribunals, including vesting in it of review power, to the exclusion of
high courts.97 This section must be understood in the light of these
issues.
III. Ethical dimensions of decision-making/What we can do.
We have seen (in section III above) how cautious we must be in
creating new institutions and in assigning roles to such institutions.
The duties to be assigned to individuals in such institutions are also
key concerns. In the same manner as judicial independence rests
ultimately on the personality of the judge, environmental decisionmaker ought to recognize the deeper values for which environmental
law stands for. It calls for an ethical introspection into any case that he
is called to decide upon.
Eric Fromm makes a profound statement when he says, ―It is
man‘s humanity that makes him so inhuman.‖98 The essence of
ecology lies in the study of togetherness of everything, because in
nature, everything is interconnected. We must accept that the function
of environmental adjudication is within a legal system where roles are
prescribed and duties and rights are recognized and the responsibility
is to judge rationally. The domain of environmental ethics urges the
decision maker to understand the deeper significance of ecological
96
Participation at the ―relevant level‖ is endorsed by the Rio Declaration and the
Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters, available at www.unece.org/env/pp.
97
After the decision in L. Chandrakumar v. Union of India, JT 1997 (3) SC 589,
which was suggested to be reconsidered by a larger bench by the law commission in
its 215th report.
98
Herbert Girardet (ed.), Surviving the Century – Facing Climate Change and Other
Global Challenges (2007).
2010]
ILI Law Review
21
decisions. But, ―is there an ethical residue in the law behind the all
concealing veil of formal legality?‖99
Though its impact on decision-making cannot be predicted,
environmental ethics can form a firm basis for decision making.100 The
constitution of the NGT consists of a Judicial Member and an Expert
Member (who may be a scientific expert or an administrative officer).
Can we outline the ethical basis of their decision-making process?
1. The Judicial Member
A sitting or retired judge of the Supreme Court or High Court is
qualified to be appointed as a Judicial Member of the NGT.101 He
would be a person who has a wealth of experience and competence on
the aspect of deciding disputes in an adversarial system, but who
would also have been conditioned by the institutional memories of the
court where he was serving. We should keep such conditioning in
mind when prescribing any role for the judges based on ethics.
Undoubtedly, adjudication ought to be rational and legitimate.
Both these conditions define our expectations from a judge. The
paradigm of a rational decision is one reached according to rules,
principles or standards. As rules have to meet certain formal
expectations of language and authority (legislation has to be clear, as
far as possible), they cannot be considered to have a major role in an
ethics discussion. What we are concerned with are principles102 and
guiding standards103 in the process. Ecological justice must be the
basis of principles and standards used in environmental cases.
The fact that adjudication is value-laden is undeniable. It is said
that, ―even elementary instances of rule interpretation and
99
Costas Douzinas, Adam Gearey, Critical Jurisprudence – The Political Philosophy
of Justice (2005).
100
As Bosselmann points out in supra note 68, ―apart from those reasons of
improving the results of decision-making there are reasons for improving the basis of
decision making.‖
101
Clause 5(1) of the NGT Bill.
102
For Dworkin, principles are different from rules. Rules can be applied in an ―all or
nothing‖ fashion. Principles do not set out legal consequences that follow
automatically once conditions provided are met.
103
Torstein Eckhoff, ―Guiding Standards in Legal Reasoning‖, in Lord Lloyd and
Roger W. Rideout (eds.), 29 Current Legal Problems 205 (Oxford Univ. Press, NY,
1976).
22
[Vol. 1 : 1
application…depend upon an account of the point, purpose or value of
the rule.‖104 It is important that every rule and policy that deals with an
environmental issue must be read in the light of the principle of
environmental ethics. Though the nature and extent of judicial
discretion is disputed,105 some degree of judicial autonomy is
undeniable. Such judicial autonomy also must be governed by
principles of ecological justice. Thus, proper understanding of these
principles is important. This calls for a policy paper that lists out the
various aspects of these principles and a proper communication to the
judges of these principles.
2. The Expert Member
Technical experts can be involved in the process by either of the
parties or the tribunal itself.106 The chairperson is empowered to invite
any person having specialized knowledge and experience in a
particular case before the tribunal to assist in that case. Risk
assessment, in which scientific expertise come into play has only a
partial role in decision-making – it is a tool, and not the decisive
factor.107 However, it is important that issues of bias in scientific
testimony are considered with utmost seriousness. The primary
function of a scientific witness is to explain the application of matters
of scientific knowledge to a particular question which is before the
court for a decision.108
In the case of NGT, the panel itself consist of an expert member.
Thus, the opinions of experts and committees will be scrutinized by
such an expert. The possibility of bias may be reduced but the larger
question here is whether we can reduce the bias element in the reports
given by experts whose help the tribunal seeks. It is desirable to have
104
William Lucy, ―Adjudication‖, in Scotman and Shapiro (eds.), The Oxford
Handbook of Jurisprudence and Philosophy (2008).
105
Dworkin denies the existence of strong discretion (i.e discretion where there are
no applicable rules or standards).
106
As per clause 4(2) of NGT Bill.
107
Nicholas De Sadeleer, Environmental Principles – From Political Slogans to
Legal Rules, (2002).
108
Justice Peter Biscoe, ―Scientific Experts in the Land and Environment Court‖,
available at: www.nsw.com (official website of New South Wales Land and
Environment Court; visited on Nov. 5, 2009 at 5:40 pm).
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ILI Law Review
23
some standards or techniques by which ‗independence‘ of such
research work can be ensured. 109
IV. Where all this may take us?/Conclusion.
Observing the ―paradoxical‖ nature of the Indian judiciary, Pratap
Bhanu Mehta observes that ―the institutional weakness of the Indian
Judiciary makes it unlikely that judicial principles will carry the due
weight of authority in society at large any time soon.‖110 It is in our
ability to refuel our institutions with conceptual clarity that the
complete delivery of justice and ultimately, the legitimacy of the
institution depend on. The rest is on performance by individuals within
the institution. This paper gives a snapshot of the modes and methods
by which we can improve our individual and institutional capabilities
within the environmental governance scenario in the context of a risk
society. The proposal to establish a NEPA and NGT provides us with
an opportunity to reorganize our thoughts on how an institution ought
to function.
The content of the concepts that form the foundation of
environmental governance ought to be based on ecological justice.
There is a need for integrating ecology in our theoretical discourses
and public institutions. Such integration should be initiated after
understanding and formulating indigenous principles of ecological
protection. Gandhi may have a lesson or two to teach. The Gandhian
approach to environment is encapsulated in ―the earth has enough
resources for our need, but not for our greed.‖ His tools of ahimsa and
satyagraha gain relevance when interpreted in the light of
environmental ethics. The effects of British colonialism towards
Indian attitudes towards environmentalism are well documented. This
shows that we had a tradition that was based on respect for ecology
and not one based on promotion of self-interest. The tenth five-year
plan recognized the fact that, ―ecological issues, unfortunately have
not been adequately incorporated into our development strategy. Much
109
There are many possible approaches like peer review and laying down standards
of general acceptance. For more see Mark R. Patterson, ―Conflicts of Interest in
Scientific Expert Testimony‖, 40 William and Mary Law Review 313 (1999).
110
Devesh Kapur and Pratap Bhanu Mehta, Public Institutions in India –
Performance and Design (2005).
24
[Vol. 1 : 1
of the problems are, on doubt attributable to lack of resources, but
possibly more is due to an inadequacy of emphasis and poor
governance.‖111
If public governance in India has to meet the challenges of
globalization which makes states more permeable,112 it has to have
stable institutions based on principles. Adjudication in this scenario
would not be mere presupposition of dispute and rational decisions,
but a participatory dialogue between the judges, lawyers and the
parties. This calls for a new theory of judgment – from ―rule of law‖ to
―rule of integrity‖.
111
Available at: www.planningcommission.gov.in (visited on Oct. 27, 2009 at 11:30
am).
112
Karl-Heinz Ladeur, Public Governance in the Age of Globalization (2004).
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ILI Law Review
25
RETHINKING RESERVATION IN HIGHER EDUCATION IN
INDIA
Mehbubul Hassan Laskar
Abstract
„Reservation‟ has always been a debatable topic. The basic object of reservation (as
it is said) is the upliftment of weaker sections. There is reservation in the field of
education, employment etc. However, this paper is basically concerned with respect
to reservation in higher education. The paper critically evaluates the reservation
policy in the light of recent judicial pronouncements as well as changing needs of
time. It throws light as to how far the object of reservation has been realised, and
finally makes an appeal that it is high time to rethink over the reservation policy in
an impartial and objective manner.
I. Introduction
EDUCATION IS the most potent mechanism for the advancement of
human beings. It enlarges, enriches and improves an individual's
image of the future. It emancipates the human beings and leads to
liberation from ignorance. A man without education is no more than an
animal. It is said that in the twenty first century, 'a nation's ability to
convert knowledge into wealth and social good through the process of
innovation is going to determine its future, 'accordingly twenty first
century is termed as century of knowledge.
Educational institutions are those sacred places where the youth
acquire knowledge and wisdom; who in turn determine the future of a
nation. It is the number of educational institutions and their quality,
which to a great extent, determine the progress of a nation. The
educational institutions collectively work as the backbone of a
developed nation. Every educational institution has to maintain certain
standard of education. It is this standard which determines the level of
prosperity, welfare and security of people. It is also interlinked with
the development of nation in general.
Education is now charged with responsibility for what is referred to
as ‗human capital formation‘ or ‗human resource development‘. This
task is guided by the assumption that in every society there is a limited
pool of individuals with a high level of intelligence, spread across all

LL.M., II Semester (Two-Year Course), Indian Law Institute, New Delhi.
26
Rethinking Reservation in Higher Education
[Vol. 1 : 1
sectors of society. These talented individuals have to be selected and
equipped with knowledge and skills, and promoted to run the engines
of industrial growth. Others have to be suitably educated to serve as
white-collar or blue-collar workers and supervisors. In the context of
the doctrine of economic nationalism, it is believed that the prosperity
of a nation depends on how well its system of education performs this
task.1
While educational institutions providing elementary education aim
at ensuring higher literacy rate by providing access to all, institutions
providing higher education aim at producing more and more expert
professionals and scholars who can serve the nation and its people in a
better way. Therefore, it is to be ensured that there must be quality
higher education so that the nation produces the best professionals and
scholars. Any step, big or small, compromising with the quality of
education can‘t be accepted in the long run.
The educational institutions in India, in order to maintain their
standard and reputation, take the best talents. However, it is subject to
article 29(2) of the Constitution which imposes a limitation that no
citizen shall be denied admission into any educational institution either
maintained by the state or receiving aid from the state on the grounds
only of religion, race, caste, language or any of them. It is also subject
to general mandate of non-discrimination under articles 14 and 15 of
the Constitution. One finds here the philosophy that the doors of
temple of learning will be kept open for every eligible candidate.
But the practice has not been so with many institutes of higher
learning. Special by-lanes have been made for different categories of
students to enter into the universities/colleges, bypassing the rigid
eligibility requirements and/or tests. There are reservations prescribed
by the government and there are reservations created by the
educational institutions themselves. Some have been adopted under the
constitutional umbrella, some have been made as a vote catching
1
Suma Chitnis, ―Higher Education‖, in Veena Das (ed.), The Oxford India
Companion to Sociology and Social Anthropology 1050 (Oxford University Press,
London, 2003).
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ILI Law Review
27
device, and a few are introduced to appease the agitators or those who
are on ‗fast unto death‘.2
It is to be remembered that education, particularly higher education,
in India has been charged with the responsibility of providing suitably
trained man-power, and for generation as well as transfer of
knowledge required for the country to keep pace and compete with
technological advances in the developed countries of the world. Higher
education in independent India is expected to develop, within a few
decades, knowledge and capabilities of a quality and level that the
developed countries have reached through a process that has stressed
over two centuries. But the task seems to be difficult because of the
‗massification‘ of higher education, the burden of the policy of
reservation, and the inadequacy of resources to maintain and upgrade
facilities as needed.3
In such circumstances, surprisingly, the Supreme Court of India on
April 10, 2008, in its landmark judgment in Ashok Kumar Thakur v.
Union of India & others,4 upheld the government move for initiating
27% OBC quotas in all government funded institutions, including
institutions of higher education. As a result of this, the government is
now in a position to reserve upto 49.5% of the seats in all central
universities, prestigious professional schools, and elite colleges, such
as the Indian Institute of Technology (IITs), Indian Institute of
Management (IIMs), National Institute of Fashion Technology (NIFT)
and government medical colleges etc.
Now, some of the most important and vital questions that arise are:
Whether reservation in higher education will result in compromising
with the quality of education? Whether reservation in higher education
will benefit the nation in the long run? Would it not amount to a
national loss in terms of brain drain and the loss of billions of dollars if
middle class parents are forced to send their wards in foreign
universities? Would it not deprive the really meritorious and talented
from access to quality education?
2
C.M Jariwala, “Reservation in Admission to Higher Education: Development and
Directions‖, 42 JILI 205 (2000).
3
Supra note 1.
4
(2007) 4 SCC 361.
28
[Vol. 1 : 1
This paper makes an attempt to look into the intrinsic value of these
questions and try to sort out the best possible answers for the same.
The present paper critically evaluates the reservation policy; its
necessity, constitutional permissibility, impact on the standard of
education and also seeks to advance certain alternative suggestions to
do away with reservation in higher education.
II. Concept of Education and Higher Education
Education is difficult to define because the concept entails varied
aspects of knowledge, which can be passed on in various forms,
including oral, written or behavioural. It also includes various forms of
passing on information. However, education has been defined as,
―training and instruction designed to give knowledge and develop
skills.‖5
United Nations Economic Social and Cultural Organisation
(UNESCO) has given a comprehensive definition of the term ‗higher
education‘. UNESCO notes that higher education includes, ―all types
of studies, training, and training for research at the post-secondary
level, provided by universities or other educational establishments that
are approved as institutions of higher education by the competent State
Authorities.‖6
Higher education is considered throughout the world to be the key
to both individual and societal aspirations. For individuals, education
beyond the secondary level is assumed to be the way to social esteem,
better paying jobs, expanded life options, intellectual stimulation and
frequently a good time in the pursuit of any or all of the above. For
societies, higher education is assumed to be the key to technology,
productivity and other ingredients of international competitiveness and
economic growth. It is believed to be a major engine of social justice,
equal opportunity and democracy.7
5
A.S. Hornby (ed.), Oxford Advanced Learners‟ Dictionary (Oxford University
Press, London, 1990).
6
UNESCO, Convention against Discrimination in Education, adopted on Dec. 14,
1960.
7
A. Johnstone, Funding of Higher Education: International Perspective (Garland
Publishing, New York, 1993).
2010]
ILI Law Review
29
Historical Background of Reservation in India: A Brief Study
―Reservation‖, also sometimes denoted as ―affirmative action‖ or
―positive discrimination‖, it refers to a policy or program, of giving
certain preferences to certain groups (usually under-represented
groups) over the others. The policy of reservation, it must be kept in
mind, was not a post-constitutional phenomenon but had its
antecedents in the colonial times. Caste or communal quotas were in
vogue well before the Constitution came into force. Reservations in
favour of the backward classes (BCs) were introduced long before
independence in a large area, comprising the presidency areas and the
princely states in the south of the Vindhyas. Chatrapati Sahuji
Maharaj, Maharaja of Kolhapur in Maharashtra, introduced reservation
in favour of backward classes in as early as 1902 to eradicate poverty
from amongst them and to give them their due share in the state
administration. The notification of 1902 created 50% reservation in
services for backward classes/communities in the State of Kolhapur.
This notification was the first government order providing for
reservation for the welfare of depressed classes in India.8
Some major events relating to reservation policy in pre-constitutional
period followed this rule:
 1882 - Hunter Commission was appointed. Mahatma Jyotirao
Phule9 made a demand of free and compulsory education for all
along with proportionate reservation/ representation in
government jobs.
 1891 - The demand for reservation in government jobs was
made as early as 1891 with an agitation in the Princely State of
Travancore against the recruitment of non-natives into public
service overlooking qualified native people.
8
Marc Galanter, Who are the Other Backward Classes: An Introduction to the
Constitutional
Puzzle
1812,
available
at:
http://marcgalanter.net/Documents/papers/scannedpdf/WhoAretheOtherBackwardClasses.pdf.
9
Jotiba Govindrao Phule, also known as Mahatma Jyotirao Phule was an activist,
thinker, social reformer, writer, philosopher, theologists, scholar, editor and
revolutionary from Maharastra, India in the nineteenth century.
30
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10
[Vol. 1 : 1
1901 - Reservations were introduced in Maharashtra in the
Princely State of Kolhapur by Shahu ji Maharaja.10
1908 - Reservations were introduced in favour of a number of
castes and communities that had little share in the
administration by the British.
1909 - Provisions for reservation were made in the
Government of India Act, 1909.
1919 - Montagu-Chelmsford Reforms11 were introduced.
Provisions for reservation were made in the Government of
India Act, 1919.
1921 - Madras Presidency introduced Communal G.O. in
which provisions for reservation were made: 44% for nonBrahmins, 16% for Brahmins, 16% for Muslims, 16% for
Anglo-Indians/Christians and 8% for Scheduled Castes.
1935 - Indian National Congress passed a resolution called
Poona Pact12 to allocate separate electoral constituencies for
depressed classes.
1935 - Provisions for reservation were made in Government of
India Act, 1935.
1942 - B.R. Ambedkar established the All India Depressed
Classes federation to support the advancement of the scheduled
castes. He demanded reservations for the Scheduled castes in
government services.
1947 - India obtained Independence. B.R. Ambedkar was
appointed chairman of the drafting committee for Indian
Constitution. The Indian Constitution prohibits discrimination
on the grounds only of religion, race, caste, sex and place of
birth. While providing equality of opportunity for all citizens,
the Constitution contains special clauses "for the advancement
Rajarshi Shahu, also known as Shahu Maharaja (July 26, 1874-May 6, 1922) was
the first Maharaja of the Indian Princely State of Kolhapur during 1884-1922.
11
The Montagu-Chelmsford reforms were introduced by the British Government in
India to introduce self-governing institutions gradually to India.
12
The Poona Pact refers to an agreement between the lower caste untouchables (then
called depressed classes, now referred to as Dalits) of India led by Dr. B.R.
Ambedkar and the upper-caste Hindus of India that took place on 24 September,
1932 at Yerawada Jail in Pune, India.
2010]
ILI Law Review
31
of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes. Separate
constituencies allocated to scheduled castes and tribes to ensure
their political representation for 10 years. (These were
subsequently extended for every 10 years through
constitutional amendments).
It is significant to note that article 15(4), which provides a
constitutional basis for reservation in education, did not form part of
the Constitution as it originally stood in 1950, although there was
provision for reservation of appointments or posts in favour of any
backward class of citizens under article 16(4). However, an equivalent
of the current article 15(4) was the subject matter of considerable
debate amongst the founding fathers of the constitution.
Constituent Assembly Debate
The fundamental rights sub-committee modified an equality clause,
framed by Mr. Munshi13 in his draft on the fundamental rights, to read
as follows:
―All citizens shall have equal opportunities of receiving education.
Nothing herein contained shall preclude the State from providing
special facilities for educationally backward sections of the
population.‖14
Moreover, B.N. Rau‘s notes on the fundamental rights were
considered and modified slightly. Based on this modification, it was
agreed by the sub-committee that the following clause be added as a
fundamental Right:
―The State shall promote with special care the educational and
economic interests of the weaker sections of society (in particular,
of the scheduled castes and aboriginal tribes), and shall protect
them from social injustice and all forms of exploitation.‖15
Prof. K.T. Shah proposed that or ―for scheduled castes or backward
tribes, for their advantage, safeguard or betterment‖ are added and
with this addition the provision would read as follows:
13
K.M. Munshi, Member of the Drafting Committee.
B. Shiva Rao, 2 The Framing of India‟s Constitution 125 (2005).
15
Id. at 34, 36.
14
32
[Vol. 1 : 1
―Nothing in this article shall prevent the state from making any
special provision for women and children or for scheduled castes
or backward tribes, for their advantage, safeguard or betterment.‖
However, B. R. Ambedkar16 was not in favour of this provision as
he took the view that such a provision would result in further seclusion
of SCs and STs resulting in a ‗separate but equal‘ treatment that was
not in their interests. In the opinion of Dr. Ambedkar:
―The object which all of us have in mind is that the general public, for
instance, none of us, I think, would like that a separate school should
be established for the scheduled castes when there is a general school
in the village open to the children of entire community. If these words
are added, it will probably give a handle for a state to say, ‗Well, we
are making special provision for the scheduled castes‘. To my mind
they can safely say so by taking shelter under the article if it is
amended in the manner the Professor wants it. I, therefore, think that it
is not a desirable amendment.‖17
Thus, it is clear that Dr. Ambedkar, the chief architect of Indian
Constitution, didn‘t consider any special provision for reservation in
respect of education for he believed that it would rather lead to further
segregation of the society in the name of castes. His belief seems to be
correct to a great extent in modern time as learned author R.L.
Chaudhari has observed, ―Regarding the caste and reservation policy,
it can be said that the privileges attached to castes have encouraged
‗casteism‟ since caste is proving very beneficial to the person
belonging to backward castes. Not only this, there is a general desire
for the enrolment in the list of scheduled castes and backward classes
even among those who are advanced and who have rejected the caste
system for other purposes. Thus, the reservation policy, instead of
removing the caste distinctions has maintained and has encouraged
social tensions which retard process of social integration. It has also
created obstacles in achieving the object of classless society in
India.‖18 While such a provision was rejected outright by the
Constituent Assembly, it was introduced in the Constitution by way of
the Constitution (First Amendment) Act, 1951 in order to nullify the
16
Chairman of the Drafting Committee.
18
R. L. Chaudhari, Concept of Secularism in Indian Constitution 184 (1987).
17
2010]
ILI Law Review
33
decision of the honourable Supreme Court in Champakam Dorairajan
v. State of Madras.19
In Champakam Dorairajan case, the Government of Madras
reserved seats in state medical and engineering colleges for different
communities in certain proportions on the basis of religion, race and
caste. This was challenged as unconstitutional. The government
defended its order on the grounds of article 46 of the Constitution,
which permits the state to promote with special care the educational
and economic interests of the weaker sections of the people and in
particular scheduled castes and scheduled tribes to secure social
justice. But the Supreme Court struck down the order as it was
violative of equality guaranteed under article 15(1) and observed that
directive principles can‘t override the guaranteed fundamental rights.
As a result, the Parliament brought an amendment20 to article 15 and
inserted clause (4).
Article 15(4) of the Constitution provides:
―Nothing in this Article or in clause (2) of Article 29 shall
prevent the state from making any special provision for the
advancement of any socially and educationally backward
classes of citizens or for the scheduled castes and scheduled
tribes.‖
Thus, the state has been given discretion to decide the nature of
special measures that are needed to protect these classes. Such
measures may range from providing exclusive housing for the above
classes to providing reservation in educational institutions. However,
article 15(4) does not grant SCs and STs and socially and
educationally backward classes the right to reservation. It is merely an
enabling provision and the state has the discretion to provide for
reservation. A writ filed by one of the members of the above classes,
praying the court to direct the state to provide for reservation cannot be
sustained.21
19
AIR 1951 SC 226.
The Constitution (First Amendment) Act, 1951.
21
Dr. N. M. Prasad v. Director, Sri Jayadeva Institute of Cardiology, AIR 1994
Kant. 309.
20
34
[Vol. 1 : 1
III.Who are Entitled to Reservation - A Confusing Question
Under article 15(4) of the Constitution, the state has been empowered
to make special provisions in respect of the following classes of
persons:
i. Scheduled Castes (SCs);
ii. Scheduled Tribes (STs); and
iii. Socially and Educationally Backward Classes (SEBCs).
But, the Constitution nowhere defines the term socially and
educationally backward classes nor lays down any specific criteria for
determining them. Moreover, the definitions provided for scheduled
castes and scheduled tribes are also vague.22 However, under articles
341 and 342, the President of India may, by public notification, specify
the castes, races or tribes, or groups within castes, race or tribes which
shall be, for the purpose of the Constitution, be deemed to be
scheduled castes or scheduled tribes, as the case may be. Later on, the
Parliament may, by law, include more groups in the list and, in fact,
the number of groups has constantly increased from time to time.
Although the term ‗socially and educationally backward class‘ has
not been defined in the Constitution, yet the Constitution provides for
the appointment of a commission to investigate the conditions of
socially and educationally backward classes within the territory of
India.23
Kalelkar Commission
Accordingly, the first Backward Classes Commission was appointed in
January, 1953 under the chairmanship of Kaka Saheb Kalelkar, with
the following terms of reference(a)To determine the tests by which any particular class or group of
people can be called ‗backward‘.
(b) To prepare a list of such backward communities for the whole
of India.
22
23
See art. 366(24) and (25).
Art. 340.
2010]
ILI Law Review
35
(c)To examine the difficulties of backward classes and to
recommend steps to be taken for their amelioration.
The commission formulated four criteria, viz. low position in the
traditional caste hierarchy; lack of general educational advancement;
inadequate representation in government service; and inadequate
representation in trade, commerce and industry. On the basis of these
criteria, the commission identified 2,399 backward castes in the entire
country, classifying 837 as the ―most backward‖. Five out of eleven
members of the commission were, however, opposed to linking caste
with backwardness, and recorded dissent. The chairman, Kaka
Kalelkar also opposed the acceptance of caste as the basis of
backwardness, but did not record a formal dissent.
The Kalelkar Commission report submitted on March 30, 1955
was presented in the Parliament with a memorandum on September 3,
1956. A significant observation made in the memorandum was that ―it
cannot be denied that the caste system is the greatest hindrance in the
way of our progress towards an egalitarian society, and the recognition
of the specified castes as backward may serve to maintain and even
perpetuate the existing distinctions on the basis of caste‖. However,
there was no discussion on this report in the Parliament at the time as
the tests recommended by the commission appeared to be too vague to
the government and also too wide to be of much practical value.
Hence, further investigation by the state governments has been
directed and, in the meantime, the state governments have been
authorized to give assistance to the backward classes according to the
lists prepared by the state governments themselves.24
Mandal Commission
Nearly 23 years after the submission of the report of the first backward
classes commission, presidential order under article 340 was issued in
January, 1978, setting up another backward classes‘ commission
consisting of five members with B.P. Mandal as chairman. This
commission started working with the following terms of reference: i).
to determine the criteria for defining the socially and educationally
backward classes; ii). To recommend steps for the backward classes so
24
Balaji v. State of Mysore, AIR 1963 SC 649.
36
[Vol. 1 : 1
identified; and iii). To examine the desirability of reservation of
appointments or posts for them.
Using the terms ―castes‘ and ―classes‖ interchangeably as
synonyms, the commission evolved 11 indicators or criteria for
determining social and educational backwardness and grouped them
under three broad heads- social, educational and economic, giving a
weightage of three points to each of the social indicators.25 Applying
these 11 indicators to all castes covered by the survey for a particular
state, the commission classified all castes that had a score of 50% or
more as socially and educationally backward. The percentage of such
backward classes, called other backward classes (OBCs) by the
commission, has been worked out by them on the basis of the
caste/community-wise population figures from the census records of
1931 and reported to be 43.7%-52% Hindu OBCs and 8.4% nonHindu OBCs. However, in view of the Supreme Court‘s judgment
holding that total reservation under articles 15(4) and 16(4) should be
below 50%; the commission recommended 27% reservation for OBCs
in all government services and recruitments to public sector
undertakings under the central and state governments, and also in
technical and professional institutions, both in the centre and the states.
This report was basically a rehash of the first backward classes
commission report rejected by the government, inasmuch as it
identified backward classes on the basis of castes. In fact, the Mandal
Commission report was based on a basic conceptual confusion. It is to
be noted that the Constitution has used the terms ―caste‖ and ―class‖
separately. Unfortunately, the commission used the terms caste and
class interchangeably as synonyms. But these are well known concepts
25
The four ‗social‘ criteria were: being considered socially backward by others;
dependence mainly on manual labour for livelihood; percentage of males and
females getting married at an age below 17 years being higher than the state average;
and, participation of females in work being less than the state average. The three
‗educational‘ criteria were: number of children in the age-group of 5-15 who never
attended the school being at least 25% above the state average; dropout rate of
students in the age-group of 5-15 at least 25% above the state average; and the
proportion of matriculates being 25% below the state average. The four ‗economic‘
criteria adopted were: average value of assets being at least 25% below the state
average; the number of families living in ‗kuchcha‘ houses being atleast 25% above
the state average; source of drinking water being beyond half a kilometer for more
than 50% of the house-holds; and, the number of house-holds having taken
consumption loans being atleast 25% above the state-average.
2010]
ILI Law Review
37
of sociology, which are different in content and connotation, and the
differences are absolutely vital. The significant differences are:
i) The membership of a caste is hereditary or by birth, which is not
so with a class.
ii) Caste is a closed group characterised by endogamy, while class
is an open group that one automatically joins when one shares
a common situation with other individuals.
iii) There is a vertical mobility in class so that a person can move
upto a higher or go down to a class considered lower in social
hierarchy. But there is no such mobility in caste.
iv) A class can generally be distinguished from another class in
terms of some economic criteria, e.g. income, occupation,
ownership of land or other means of production, place of
residence etc. While some castes may have a traditional or
hereditary occupation, they are basically not economic groups
and are usually based on religious and mythical traditions.
Had the Mandal Commission kept these conceptual differences in
view and also the fact that the government had already explicitly
rejected caste as the basis of class and suggested the adoption of ―some
criteria other than caste‖, such as linking backwardness to
―occupational communities‖ and ―the application of economic tests‖,
the mess which had been created by their identifying caste with class
would have been avoided.
Consequently, no action was taken on the Mandal Commission
report for nearly a decade. It was suddenly in 1990, the Government of
India decided to implement the recommendations of the report. There
is no evidence that the government at any level examined this report,
or there was any kind of discussion or debate on it, or any attempt to
evolve a political consensus before announcing the decision to
implement its recommendation to provide 27% reservation to OBC in
the civil posts and services under the Government of India.
After the Government of India issued certain memoranda in 199091, pursuant to this report, various writ petitions were filed challenging
the constitutional validity of the Mandal Commission report and office
memoranda. These petitions were eventually heard and disposed of on
November 16, 1992 by a nine-judge bench in the celebrated case of
38
[Vol. 1 : 1
Indra Sawhney v. Union of India,26 popularly known as Mandal
Commission case. In this case, the Supreme Court has exhaustively
dealt with reservation policy and upheld the validity of the Mandal
Commission report. The court held that caste is an important criterion
for determining backwardness of a class, but it is not the sole criteria.
The court further held that reservation cannot exceed the limit of 50%
as laid down in Balaji v. State of Mysore.27 Moreover, the court
evolved the concept of ‗creamy layer‘ and held that creamy layers in
backward classes have no place in reservation system. But the Court
failed to give a precise definition of ‗creamy layer‘. It was held that
persons who are employed in higher services like IAS, IPS, and AllIndia services or near about as persons having reached a higher level
of social advancement and economic status are not to be treated as
backward, but to be treated as ‗creamy layer‘. This has again led to
controversy and confusions as to what income should be treated as
base to determine ‗creamy layer‘. The Kerela High Court considered
annual income of the year preceding the year of admission as the
basis28 whereas the Punjab and Haryana High Court held that it should
be the average of last five years‘ income.29 It is said that burgling and
corruption in this branch has witnessed number of unnerved
entitlements, including those showing a particular year income, change
of profession to show lower income, false income certificate, income
only from one source and not the real total income to show reduced
income position to claim the benefits of reservation.30
IV. Reservation in Higher Education- Present Position
Recently in P.A. Inamdar v. State of Maharastra,31 the Supreme Court
abolished state quotas in private unaided professional colleges and
specifically held that the state could not impose reservations in
26
AIR 1993 SC 477.
AIR 1963 SC 649.
28
P. Meerakutty v. State of Kerela, AIR 1992 Ker 273.
29
Gouri Sankar v. State of A.P, AIR 1982 P&H 100.
30
See P. Sree Kumar v. State of Kerela, AIR 1998 Ker 77; R. Dinesh Kumar v.
Director of Technical Education, AIR 1985 Kar 280; Aruna v. State, AIR 1985 Kar
196.
31
AIR 2005 SC 3226.
27
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ILI Law Review
39
unaided institutions. This led to the passing of the Constitution
(Ninety-third Amendment) Act, 2005 by the Parliament in December,
2005 inserting the following clause (5) in article 15 of the
Constitution:
―Nothing in this article or in sub-clause (g) of clause (1) of article
19 shall prevent the state from making any special provision by law,
for the advancement of socially and educationally backward classes of
citizens or for the scheduled castes or scheduled tribes in so far as such
special provisions relate to their admissions to educational institutions
including private educational institutions; whether aided or un-aided
by the state, other than the minority educational institutions referred to
in clause (1) of article 30.‖
It is to be noted that article 15(5) - does not specifically provide for
‗reservation‘ as such. It is only an enabling provision which empowers
the state to lay down by law ‗special provisions‘ in the matter of
admission to ‗educational institutions.‘ There is no particular mention
of institutions of higher learning, universities or professional
institutions as such. Educational institutions could also mean primary
and secondary schools. Also, the ‗special measures‘ could mean
several measures other than reservation.
However, taking the advantage of this constitutional amendment,
the union government brought forth legislation namely, the Central
Educational Institutions (Reservation in Admission) Act, 2006 (the
Act) under which the following scheme of reservation has been
provided:
i) SC - 15%
ii) ST - 7.5%
iii) OBC - 27%
As a result of this, about 50% of the seats have now come under
reservation in all central educational institutions including institutions
of higher learning and professional institutes like IITs, IIMs and
government medical and engineering colleges. However, under the
Act, the following institutions are excluded from the purview of
reservation- institutions in tribal areas, research institutions as
specified in the schedule to the Act, minority institutions and super-
40
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specialty courses as may be specified by the Central Government. 32 It
may be noted that the Supreme Court, in its various decisions, has held
that there can be no reservation in super-specialty courses.33 But the
Act does not specify the super-specialty courses and it has been left to
the discretion of the government to determine the super-specialty
courses which are to be excluded from the purview of reservation.
The validity of the Constitution (Ninety-third Amendment) Act,
2005 and the Central Educational Institutions (Reservation in
Admission) Act, 2006 was challenged in the famous case Ashok
Kumar Thakur v. Union of India.34 The Supreme Court, in its decision,
upheld the validity of the Constitutional Amendment Act as well as the
Central Act. The Court has failed to take notice of the fact that
reservation is not the only prescribed means for ensuring development
of SC/ST/OBC and that such high percentage of reservation in higher
education could not have been the dream of the founding fathers of our
Constitution. Mediocrity over meritocracy, in this twenty-first century,
will not only hamper the quality of education but will also retard the
progress of the nation as a whole. Instead of finding out other suitable
methods for the development of backward classes, simply giving
reservation is nothing but a fraud on the Constitution. In fact, after six
decades of the commencement of the Constitution, the time has come
to impartially review the entire reservation system and ensure that only
the best talents get place in educational institutions, irrespective of his
caste or class.
Apart from reservation provided to SC/ST/OBC, there are also
various other kinds of reservation which prevail in higher education in
India, such asi) Reservation in favour of girl students.35
ii) Reservation in favour of children of government employees.36
iii) Reservation in favour of resident of particular territories.37
iv) Reservation in favour of children of defence personnel.38
32
See Sec. 4 of the Act.
See Preeti Srivastava (Dr.) v. State of M.P., AIR 1999 SC 2894; AIIMS Students
Union v. AIIMS, AIR 2001 SC 3262.
34
Supra note 4.
35
Subhash v. State, AIR 1973 All 295.
36
Manju v. State, AIR 1972 HP 37.
37
Chitra v. U.O.I, AIR 1970 SC 35.
33
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ILI Law Review
41
v)
Reservation in favour of candidates from union territories or the
state of J&K.39
vi) Reservation in favour of candidates who have passed through the
qualifying examination of the same university as distinguished
from those coming from other universities;40etc.
Although there are various kinds of reservations that have crept into
higher education, I have mainly focused on the issue of SC/ST/OBC
reservation in higher education which has created much controversy
and debate during the last three decades or so.
V. Reservation in Higher Education- A Critique
It is a well-settled principle in law that reservation to a backward class
is not a constitutional mandate. It is the prerogative of the state
concerned if it so desires, with an object of providing opportunity of
advancement in the society to certain backward classes which include
the SCs and STs, to reserve certain seats in educational institutions.41
The pivotal role of an activist Supreme Court in shaping India‘s
affirmative action policies cannot be gainsaid. With due respect to the
Apex Court, I most humbly submit that it has failed to understand the
rationale behind reservation, which was a temporary measure but it
now seems to continue till eternity. It seems that the discretion of the
state has been converted into a right of a particular undefined group of
persons. The court has accorded caste-based classifications such a
presumption of constitutionality that it has made them quite
unchallengeable. The Court has given unbridled discretion to the state
to determine the condition that is appropriate to trigger affirmative
action for the backward classes. India‘s affirmative action policy, by
its very nature, is not susceptible to any pre-fixed termination date.
The national commission that reviewed the working of the
Constitution for the past half-century recommended ―that the ultimate
aim of affirmative action or reservation should be to raise the level of
capabilities of people of the disadvantaged section and to bring them at
38
Chanchala v. State of Mysore, AIR 1971 SC 1762.
Shubasini v. State of Mysore, AIR 1966 Mys 40.
40
Supra note 42.
41
E.V. Chinnaiah v. State of A.P., AIR 2005 SC 162.
39
42
[Vol. 1 : 1
par with other sections of the society.‖42 This seems to be an aim in
perpetuity.
Even though the makers of the Constitution originally conceived it
as a transient reparatory measure to benefit the historically
discriminated backward classes, the reservation system has grown into
a sprawling enterprise with its own elaborate infra-structure,
programme and supportive constituents.43
It must be noted that mediocrity over meritocracy cuts at the roots of
justice and hurts right to equality. Any protective push or prop, by way
of reservation or classification, must withstand the test of equality
contained in article 14 of the Constitution. Any overgenerous approach
to a section of the beneficiaries, if it has the effect of destroying
another‘s right to education, more so, by pushing a mediocre over a
meritorious, belies the hopes of our founding fathers on which they
structured the great document of the Constitution and so must fall to
the ground.
Any sort of discrimination or classification, in order to withstand the
test of equality enshrined in article 14, must satisfy the following two
conditions:
I) The classification must be founded on an intelligible differentia
which distinguishes persons or things grouped together from
others left out of the group; and
II) The differentia must have a rational relation to the object sought
to be achieved.
For the purpose of reservation in higher education, the government has
broadly classified the students into the following two categoriesa) Students belonging to general category; and
b) Students belonging to SC/ST/OBC category.
42
Government of India, Report of the National Commission to Review the Working
of
the
Constitution
(March
31,
2002);
available
at
http://lawmin.nic.in/ncrwc/finalreport.htm. (popularly known as Venkatachaliah
Commission Report)
43
K.G. Janpillai, ―Equality in the affirmative action‖, 27 Academy Law Review 48
(2003).
2010]
ILI Law Review
43
Arbitrary Procedure for Selecting SC/ST/OBC - No Intelligible
Differentia
I firmly contend that this classification cannot be said to be based on
any intelligible differentia. This classification might have been
justified 60 years back when social evils like ‗untouchability‘, caste
system etc. were greatly practised in India. As a result, people
belonging to these categories were prevented from mixing with
common masses and deprived of all social, economic and political
benefits. But now the situation has significantly changed. The light of
education has helped us to abandon many of the evil (non-scientific)
practices. Now, we have been able to abolish untouchability from our
society. We have different statutes to protect the interests of SCs and
STs such as the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 etc. We have National Commissions for
Scheduled Caste and Scheduled Tribe44 to look after their well being.
Laws have been enacted prohibiting the entry of non-tribals into tribal
areas without permit and separate provisions are made for the better
administration of tribal areas.45 Article 339(2) of the Constitution
empowers the centre to issue directives to any state giving directions
as to the drawing up and execution of schemes for the welfare of the
scheduled tribes. Necessary provisions are also made to meet the costs
of the scheme from the Consolidated Fund of India.46 As a result, the
problems or difficulties which they earlier faced have significantly
diminished today. Even the members, who belong to the so called
SC/ST category, never use their identity in any matter. It is only when
they have to take certain advantages or benefits; they disclose their so
called caste identity.
According to article 366(24), ―Scheduled Caste‖ means such castes,
races or tribes or parts of groups within such castes, races or tribes, as
are deemed under article 341 to be scheduled castes for the purpose of
the Constitution. According to article 366(25), ―Scheduled Tribes‖
means such tribes or tribal communities or parts of or groups within
44
These commissions have been set up as National Legal Advisory Body to advise
the government on broad policy issues and level of development of SCs and STs
respectively.
45
See schs. V and VI to the Constitution of India.
46
See art. 275(1) of the Constitution of India.
44
[Vol. 1 : 1
such tribes or tribal communities as are deemed under article 342 to be
scheduled tribes for the purpose of the Constitution.
Thus, scheduled castes or scheduled tribes are those communities
which are listed as scheduled castes or scheduled tribes in the
Constitution as per the Order of the President under article 341 and
article 342 respectively. But the Constitution does not prescribe any
procedure to determine SC/ST before including them in the list. The
lists prepared through presidential order are final. It is not open to the
court to make any addition or subtraction from the presidential
Order.47 Now the important question is that whether a community
listed as SC/ST sixty years back on the basis of certain criteria still
continue to suffer from various drawbacks and is entitled to the
benefits attached to SC/ST.
It may be worthwhile to mention that the Supreme Court in Ajay
Kumar Singh v. State of Bihar48 and in several other cases held, ―A
class/caste may be backward in present time, but it may not be so in
coming years due to their socialisation with society and job
opportunities. Once a caste is socially and educationally backward
community, it cannot remain so for all times to come. It requires
periodical review.‖
But, infact, no concrete steps have so far been taken for periodic
revision of their social and economic conditions. Now, a student
becomes an SC/ST only on the basis of a certificate issued by a
competent authority of the government. Many a time, in order to take
benefits of reservation, students manage to get fake SC/ST certificate.
This has given rise to the problems of fake candidates,49 cases of
conversions50 to SC from high castes, adoption by a SC/ST51 etc.
Moreover, many communities in India are agitating to get their
communities listed in the SC/ST list. In this regard, long before Indra
Sawhney,52 in K.C. Basanth Kumar v. State of Karnataka,53 it was
47
See B. Basavalingappa v. D. Munichinappah, AIR 1965 SC 1269; Virendra v.
Union of India, AIR 1992 All 147.
48
(1994) 4 SCC 401.
49
R.K. Shaha v. Medical College, AIR 1976 Cal 347; Ranbir Singh v. State, AIR
1978 P&H 109.
50
J. Das v. State, AIR 1981 Ker 164; Dr. Neelima v. Dean of PG Studies, AIR 1993
AP 229; R. Uma Devi v. Principal, K.M. College, AIR 1993 AP 38.
51
Khazan Singh v. U.O.I, AIR 1980 Del 60.
52
Supra note 26.
2010]
ILI Law Review
45
observed that the paradox of the system of reservation is that it has
endangered a spirit of self degeneration among the people. Nowhere
else in the world, do castes, classes or communities queue up for the
sake of gaining backward status. Nowhere else in the world is there
‗competition‘ to assert backwardness and to claim ―we are more
backward than you.‖
Even the position is same in respect of OBC. The two commissions
appointed so far failed to lay down specific criteria for determination
of OBC. In fact, both the commissions used ―caste‖ as an important
factor to determine backwardness of a class. But it is to be
remembered that the very inquiry of an individual‘s caste to determine
OBC would amount to grave breach of the Constitution and harm the
unity and integrity of the nation. Such exercise would perpetuate and
reinforce caste system in India rather than hasten its demise which our
founding fathers had never dreamt of. In this light, it is humbly
submitted with the greatest respect that the court in Indra Sawhney
case54 was wholly in error in stating that ‗caste‘ could be a factor for
identifying the backward classes.
In this regard, eminent jurist Nani Palhkivala commented thus: ―The
basic structure of the Constitution envisages a cohesive, unified and
casteless society. By breathing new life into casteism the judgment
fractures the nation and disregards the basic structure of the
Constitution. The decision would revitalize casteism, cleave the nation
into two- forward and backward, and open up new vistas for
intermecuie conflicts and fissiparous forces, and make backwardness a
vested interest. It will undo whatever has been achieved since
independence towards creating a unified, integrated nation. The
majority judgment will revive casteism which the Constitution
empathetically intended to end.‖55
In this light, it is most humbly submitted that the judgment in Indra
Sawhney, to the extent it regards caste as an important factor to
determine OBC, ought to be reconsidered and the Court must lay down
specific guidelines to determine OBC so as to prevent any sort of
arbitrariness in this regard.
53
AIR 1985 SC 1495.
Supra note 5.
55
Nani Palkhivala, We the Nations: The Lost Decades 179 (1994).
54
46
[Vol. 1 : 1
Thus, in the absence of specific criteria or guidelines, the
determination of SC/ST/OBC cannot be justified. It is confusing in
nature. It may be done arbitrarily and based on extraneous and
irrelevant grounds. Hence, the classification of students as general and
SC/ST/OBC is not based on any intelligible differentia so as to
withstand the test of article 14 of the Constitution.
No Reasonable Nexus with the Object Sought to be Achieved
The basic policy of reservation is to off-set the inequality and removes
the manifest imbalance, the victims of which for bygone generations
lag far behind and demand equality by special preferences and
strategies. Thus, the main ground on which reservation is sought to be
justified in India is that the people belonging to the class- SC/ST/OBC
were historically oppressed and denied respect and equal opportunity
in Indian society and were thus under-represented in the nationbuilding process. Hence, reservation is a way to bring them at par with
the general class of the society. Thus, the object sought to be achieved
by way of reservation is the overall upliftment of SC/ST/OBC. It is to
be remembered that reservation is not an end in itself; it is one of the
means to achieve equality. The policy of reservation adopted to
achieve that end must, therefore, be consistent with the objective in
view.
But, in the present time, it seems that the policy of reservation is
being continued without any object. Even after sixty years of India‘s
independence, no concrete steps have so far been taken to determine as
to how far the object of reservation has been achieved. The specific
requirement of periodic review as stated in section 11 of the National
Commission for Backward Classes Act,1993 and in para 847 of Indra
Sawhney case has not been followed, and as a consequence, the
prevailing lists have swelled to include several thousand ―castes‖
which are treated as ‗backward classes‘, thereby satisfying the political
mandate.
Thus, it is clear that the reservation policy has no reasonable nexus
with the object sought to be achieved. It has become an important tool
of politics in the country. The inclusion of any class/caste has been
used as a vote capturing device. There are cases when the party in
2010]
ILI Law Review
47
power, on the eve of central or state election, included large number of
classes in the list of OBC. It is time that the pressure tactics be avoided
otherwise the caste/class strife will put an eclipse on the philosophy of
common brotherhood and the egalitarian society provided in the
Constitution of India.56 The judiciary, being the guardian of the
Constitution, must adopt a beneficial and careful approach in this
regard.
Any Sort of Reservation in Higher Education is against the
International Principles
Under article 51 of the Constitution, the Union of India has a duty to
take steps to ―foster respect for international law and treaty
obligations.‖ In other words, the state has a responsibility, so far as
possible, to give effect to the provisions of international treaties.
According to article 26 of UDHR,57 ―Everyone has a right to
education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available
and higher education shall be equally accessible to all on the basis of
merit.‖
According to article 4 of the UNESCO Convention Against
Discrimination in Education,58 ―Admission to higher education should
be based on merit, capacity, efforts, perseverance and devotion showed
by those seeking to access it, and can take place in a life long scheme,
at any time with due recognition of the previously acquired skills.‖
Thus, the Convention proclaims that access to higher education should
be based on merit and no discrimination shall be allowed on the
grounds of race, gender, language, or religion, or economic, social or
cultural distinction.
According to article 13(2)(b) of International Convention on Social,
Economic and Cultural Rights (ICESCR),59 which deals with
secondary education, ―Secondary education shall be made generally
56
Supra note 2.
The Universal Declaration of Human Rights adopted in 1948.
58
Adopted in 1960.
59
Adopted in 1966.
57
48
[Vol. 1 : 1
available and accessible to all by every appropriate means, and in
particular by the progressive introduction of free education.‖ The
phrase ―generally available‖ signifies that secondary education is not
dependent on a student‘s apparent capacity or ability and it must be
made accessible to all.
Article 13(2)(c) of ICESCR deals with the ―right to higher
education.‖ It specifically states, ―higher education shall be made
equally accessible to all on the basis of capacity.‖ Thus, according to
article 13(2)(c), higher education is not to be ―generally available‖, but
only available on the basis of capacity i.e. merit.
Thus, it is clear that the international community has recognized that
there shall be no compromise with merit and higher education shall be
accessible to all only and only on the basis of merit. India, having
ratified these conventions, has a positive moral obligation to follow
this international norm. But, alas! India is still continuing, rather
perpetuating the age old reservation policy without any fixed object. It
is time to rethink over the policy.
Reservation Hampers Quality Education
It is also a fact that reservation of any kind hampers the quality of
higher education. Through reservation, we may simply create a pass
for the reserved category students to enter institutes of higher learning
and professional excellence. But it is really very shocking that the
majority of such students fail to cope up with the standard of education
required at such level. This becomes clear from the fact that in the last
ten years or so, in the courses like IITs etc, more than 90%
SC/ST/OBC students are either dropped out or were declared failed in
the first year or in the second year. In many cases, they simply failed
to acquire the benchmark required to sit in the examination.60 Thus,
the reservation made by the central government/state government has
become redundant as these students fail to acquire the minimum
benchmark. As a result of this, the reserved seats in higher courses are
lying vacant. Had these seats been given to really meritorious eligible
candidates, we would have got bundles of expert professionals who
60
See Avinash Singh Bagri & Othrs. v. Registrar, IIT Delhi & Anr., 2009(11)
SCALE 535.
2010]
ILI Law Review
49
could be the real treasure of our country. This also clearly shows the
violation of right to education of the students belonging to general
category who, in spite of their merit and eligibility, fail to get seats in
the institutes of higher education only because of the fact that they
belong to general category.
Two Major Demerits of Reservation
Apart from various other demerits, I would like to mention the two
most significant demerits of the reservation policy:
i) Reservation hampers the intellectual development of backward
classes: The general mode of selection observed in
colleges/universities is either the marks scored by the students in
the last examination or their marks in an entrance examination
conducted by the colleges/universities. But, in keeping with the
reservation policy, the colleges/universities demarcate different
qualification levels or ―cut-off marks.‖ The backward classes
have lower cut-off marks as compared to general category
students. But the reduction of cut-off marks only hampers the
development of backward classes themselves. It reduces the
competitive spirit in them. By doing it, the government seems to
tell them that they can just sit back and score just the required
minimum, because for them, caste and not marks, is the ticket to
enter the colleges/universities of their choice. In this regard,
Professor Paramananda Singh says, ―What is needed today is that
the state should divert more and more of its resources to increase
the overall competitiveness of the beneficiaries rather than stick
to ‗reservation‘ as the only best means to promote equality.‖61
Reservation may have been theoretically aiming at equality, but
in practice, it is far from the very idea of equality. Rather, it
enhances inequality among the different classes in the society
and is against the philosophy of ―common brotherhood.‖
ii)Reservation hampers progress: Reservation was undertaken with
an additional goal in mind- that of trying to aid progress of
society by pulling up even the weakest sections of the society.
61
Paramananda Singh, ―Promoting equality through reservations: A critique of
judicial policy and political practice‖, 20 DLR 46 (1998).
50
[Vol. 1 : 1
But this seems to be a myth. One obvious reason is that even
after so many years of its implementation, there is hardly any
significant progress. This may be because most of the really
backward people are not included in the list of ―backward
classes‖ as prepared by the competent authority and the fairly
forward people hang on to the tag of backward so as to avail
various facilities. Such faulty procedure is an obstacle in the
uniform progress of the nation.
Another important reason as to why reservation hampers progress is
that because of reservation, the really meritorious students lose out in
the rat race. This not only hampers progress but also procures great
loss for the nation. Infact, really meritorious and talented students are
the assets of the nation who must be given all types of support to
blossom fully and serve the nation. But the reservation policy simply
kicks 50% of the really meritorious students belonging to general
category out of the race. This fuels the problem of brain-drain as the
really meritorious students go abroad simply because of the lack of
seats for their caste or community in the institutes of higher learning.
In fact, the reservation policy only seems attractive to those who
support it but it is of no use to millions of people who are living a very
pathetic life in India, irrespective of caste.
VI. Conclusion and Suggestions
The primary imperative of articles 14 and 15 is equal opportunity for
all across the nation to attain excellence. Excellence cannot be allowed
to be compromised by any other considerations because that would be
detrimental to national interest. Therefore, to sympathize whimsically
with the weaker sections by selecting sub-standard candidates, and that
also in the higher level of education, is to punish the society as a whole
by denying the prospect of excellence.
There is no denying the fact that there exist weaker or backward
classes in the society which need special care and attention for their
development. In fact, uniform development of society is not possible
without the development of backward classes. But reservation is not
the only means for the development of backward classes and that also
in the higher level of education which aims at quality education. But,
2010]
ILI Law Review
51
in the modern time, the determination of the backward class has itself
become a matter of huge controversy. Therefore, first of all, proper
procedure and criteria should be laid down to determine the real
backward classes of the society who need special attention. Caste
should not be considered as relevant criteria for determination of
backwardness as it is against the constitutional principle. Rather
poverty, geographical location, educational level and occupation may
be considered as relevant criteria. A statute in this regard is the need of
the time to avoid arbitrariness and confusion in the determination of
backward classes. The Law Commission of India, the National
Commission for Scheduled Caste and Scheduled Tribe and the
National Commission for Backward Classes can successfully help in
framing a statute in this regard.
Permissible reservation at the lowest or primary rung is a step in the
direction of assimilating the lesser fortunate or backward classes in the
mainstream of society by bringing them to the level of others which
they cannot achieve unless protectively pushed. Once that is done the
protection needs to be withdrawn in the own interests of ‗the
protected‘ so that they develop strength and feel confident of stepping
on higher rungs on their own legs shedding the crutches. Pushing the
protection of reservation beyond the primary level only keep the
cripples, crippled forever.62
Thus, the primary duty of the state is to provide quality primary and
secondary education to all children, especially the children belonging
to backward classes. A recent World Bank study has revealed the poor
condition of India‘s primary and secondary education.63 The report
brings to light the poor gross enrolment rate (GER) of students at the
secondary level. The report reveals grim overall GERs for Bihar
(21%), Rajasthan (43%), Chhattisgarh (44%), Uttar Pradesh (49%),
and even Haryana and Punjab, which have only about 50% GERs at
lower secondary level and lesser enrolments of 32% and 28%
respectively at upper secondary level. The report further reveals that
only 65% of the villages have schools within 5 km radius as prescribed
by the government. In 35% villages, secondary school students have to
commute for more than one hour to attend school. At upper secondary
62
63
D.D. Basu, 2 Commentary on the Constitution of India 1827 (2007).
Reported in The Tribune 1, October 8, 2009.
52
[Vol. 1 : 1
level, only 635 villages have schools in the listed 10 km radius. Even
in high-income states like Haryana, Punjab and Himachal Pradesh, 19,
17 and 5 percent villages, respectively, do not have accessible
secondary schools.
The report clearly reveals the poor and deplorable state of India‘s
primary and secondary education. Thus, what is needed is not
reservation in higher education but accessible and quality primary and
secondary education so that the students belonging to backward
classes can also successfully compete with other students and thereby
further enhance their intellectual capacity.
Moreover, it is to be remembered that backwardness is also closely
related to poor economic condition. Hence, the right approach would
be to provide scholarships and other financial assistance at the higher
level of education to the meritorious students belonging to backward
classes rather than forcing reservation.
In order to make the students belonging to backward classes
―natural competitors‖, coaching schools and institutes should be
established and free coaching should be provided to them. It is high
time that the society should stop underestimating the calibre and talent
of the students belonging to backward classes by providing further
reservation.
In fact, reservation can never be a substitute for the upliftment of
the weaker sections on the social and economic plane. Reservation was
meaningful at the commencement of the Constitution as a temporary
measure, at a time when the state was required and expected to
promote with special care, the educational and economic interests of
the weaker sections of the people, and in particular the scheduled
castes and scheduled tribes. The Constitution did not envisage nonimplementation of the directive principles of the policy set out in
articles 41, 45 and 46 even after sixty years and continuing reservation
indefinitely. Sixty years is too long a period to continue reservation
without undertaking promotion of the educational and economic
interests of the weaker sections in a time bound manner. Neglecting
educational and economic interests of the backward classes and
continuing to provide only reservation is against the tenor of the
2010]
ILI Law Review
53
Constitution and the judiciary is not powerless to correct this serious
lapse on the part of the state.64
It is really very appreciable and welcome step that the judiciary has
frowned upon any type of reservation in super-specialty courses. In
Mohan Bir Singh Chawla v. Punjab University,65 the Supreme Court
said that at higher levels of education it would be dangerous to
depreciate merit and excellence. The Court thus declared, ―The higher
you go in any discipline, lesser should be the reservation of whatever
kind.‖66 It is high time that the judiciary should move a step further
and say ―no reservation‖ in higher education, which is so important for
the greater progress of the nation. Let us allow the right to equal
opportunity in education to bloom for the best eligible students. Let us
make the peoples‘ right to education and standard of education vibrant,
striving toward ―excellence‖, so that the nation constantly rises to the
highest levels of endeavor and achievement.
Before concluding, I remember the words of our late Prime Minister
Pt. Jawaharlal Nehru when he said about 60 years back: ―I am grieved
to learn of how far this business of reservation has gone based on
communal consideration…. This way lies not folly, but disaster. Let us
help the backward groups by all means, but never at the cost of
efficiency.‖67
It is high time that we should rethink over the reservation policy,
impartially and objectively, keeping in mind the changing global
scenario and the role that India should play in this competitive global
arena. Let us move towards the right direction…
64
P.P. Rao, ―Right to Equality and Reservation Policy‖, 42 JILI page no. 2000.
AIR 1997 SC 788.
66
See also, Preeti Sagar Srivastava (Dr.) v. State of M.P, AIR 1999 SC 2894.
67
Supra note 62.
65
54
Atrocities on Dalits
[Vol. 1 : 1
ATROCITIES ON DALITS- A HUMAN RIGHTS
PERSPECTIVE
Ajay
Abstract
Dalits have been considered, for centuries, as lesser human beings and subjected to
caste based atrocities for various historical, social and economic reasons. The caste
based discrimination sanctified by the Hindu religious scriptures, is still haunting a
large segment of Indian society, i.e. dalits. Despite the formal protections under the
laws, dalits are still meted out with atrocities which are striking at their very basic
rights. The vested upper caste interests and the desire to maintain the monopoly over
the community resources is involved in maintaining the caste based discrimination
and atrocities. Further the state complicity as a whole has turned the Prevention of
Atrocities Act nugatory and ineffective thus resulting in perpetuation of atrocities.
The caste based discrimination is no less graver than the discrimination faced by the
blacks on racial grounds of race and thus needs to be fought at the international
level. But this assertion is getting receiving vehement opposition by the vested
interest with the contention that caste is not similar to race and thus do not fall
within the purview of Convention on Elimination of Racial Discrimination. The
attention must be given to the gravity of the caste-descent based discrimination and
the growing human rights violations of the scheduled castes rather than
concentrating on the nomenclature of the form of discrimination.
I. Introduction
IN THE world‘s largest democracy the caste based discrimination has,
for centuries, remained a haunting experience for a large populace of
the society. The members of this large segment known as
―Untouchables‖ were considered as lesser human beings and therefore
considered ‗unfit‘ for any human rights and were in fact denied even
the right to be human. They were believed to be the recipient of severe
social disabilities, slavery and indignities. The constitutional framers
of our Constitution were well aware of the discrimination faced by the
scheduled castes so they provided fundamental rights coupled with
positive discrimination to eliminate all kinds of discrimination. In
addition to that protective legislations have been enacted to eradicate
social prejudices and atrocities against dalits. Despite the
constitutional protections and benefits in form of equal rights and

LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.
2010]
ILI Law Review
55
affirmative action and the protective laws enacted for the protection
and upliftment of dalits, the caste based discrimination is still
persisting and the dalits are frequently being made targets of physical
and sexual violence. The foolproof recipe of equality has done little to
mitigate the age old oppression and exclusion for over 167 million
dalits.1 Atrocities are day to day phenomena and dalits are facing
indignities and discrimination due to various historical, social and
economic reasons.
This article seeks to analyze the phenomena of increasing and
perpetuating atrocities on the dalits which result in gross violation of
their human rights and to identify the reasons for perpetuating
atrocities despite the safeguards provided under the law. It further
seeks to analyse the law relating to atrocities and that whether it has
become successful in preventing atrocities, and if not, then what are
the reasons for such failure. Part II of the article makes an analysis of
the historical evolution of the caste based discrimination and how the
caste system resulted into caste prejudices further resulting in caste
disabilities and how the Hindu scriptures sanctified the caste based
discrimination. Part III focuses on the legal safeguards provided to the
scheduled caste under the Constitution of India and protective
legislations enacted for the protection and upliftment of dalits
especially the anti-atrocities law. Part IV deals with the phenomenon
of perpetuating atrocities despite the formal protections under the law
and the end result in form of human rights violations of dalits. It
further identifies the causes of the atrocities and also analyses the role
of the state, especially the police, in perpetuation of atrocities and the
attitude of the judiciary towards the causes of dalits and how the caste
affiliations and prejudices are enforced through state machinery. This
part further explores the recent trend to deal with the caste based
discrimination at the international level and the domestic opposition to
the same; the claims why caste based discrimination should not be
addressed in the international fora and whether such claim is having
any rationale or not. Part V concludes by pointing out to the factors
liable for perpetuating atrocities and by suggesting measures which
1
See Smita Narula, ―Equal by Law Unequal by Caste: The ‗Untouchable‘ Condition
in Critical Race Perspective‖, 26 Wis. Int‟l. L. J. 255 (2008).
56
[Vol. 1 : 1
could be taken to prevent caste atrocities and thus ensuring human
rights to this large segment of the society.
II. Caste and Caste Prejudices
The Caste System
One of the exclusive features of Indian society is the institution of
caste, perhaps the longest surviving social hierarchy in the world.
Caste is a defining feature of Hinduism and situates people in complex
ordering of social groups on the basis of ritual purity.2 Dr. Ketkar says
that the caste owes its origin to the Spanish word ―Casta‖, which
means breed, race, strain or a complex of hereditary qualities. 3 Dr.
Ketkar defines Caste as ―a social group having two characteristics: (i)
Membership is confined to those who are born of members and
includes all persons so born; (ii) the members are forbidden by an
inexorable social law to marry outside the group.‖4
Dr. Ambedkar defines Caste as ―[A]n artificial chopping of the
population into fixed and definite units, each one prevented from
fusing into another through the custom of endogamy. Thus the
conclusion is inevitable that endogamy is the only characteristic that is
peculiar to caste.‖5 Thus endogamy and ban on inter-dining are the
main characteristics of caste system. The genesis of caste can be traced
back to „Rig Vedic‟ period. In the early Rig Vedic period the society
was divided into four „Varnas‟, i.e. Brahmin, Kshatriya, Vaishya and
Shudra. The Rig Veda provided basis for this Varna nomenclatures.6
The first three categories were considered as twice born and called
2
Smita Narula, Broken People: Caste Violence against India‟s “Untouchables” 24
(Human Rights Watch, NY, 1999).
3
Joseph Benjamin, ―Caste-Class Situation in India and Human Rights‖, 54 Social
Action 48 (2004).
4
Dr. B. R. Ambedkar, ―Castes in India: Their Mechanism, Genesis and
Development‖, XLI Indian Antiquary 1, 2 (1917), available at:
http://www.ambedkar.org/ambcd/01.Caste%20in%20India.htm.
5
Id. at 4.
6
The Purusha Sukta in Rig Veda says, ‗the Brahmin came from the mouth, the
Kshatriya from the arms, the Vaishya from the thigh and the Shudra from the feet of
the Brahma‘. The constitution of society prescribed by the Purusha Sukta is known
as ‗Chaturvarnya‟, cited in Infra note 11 at 5.
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ILI Law Review
57
‗Dwija‟. The last category, i.e. Shudra was considered as ‗lowest
born‘.
Manu Smriti enshrined that Brahma produced from his mouth,
arms, thighs and feet, the Brahmin, the Kshatriya, the Vaishya and the
Shudra.7 For the protection of this whole creation Brahma assigned
separate activities for those born from mouth, arms, thighs and feet.8
There was also a fifth category of persons who was considered outside
the Varna system. They had to do menial jobs like scavenging and
burial of dead animals, tanning, removing of caracass etc. This
category was of „Untouchables‟ who were termed as „Chandalas‟ and
„Pulkasas‟. Manu observed that the dwellings of the „Chandalas‟ shall
be outside the village, their dress are the garments of dead and their
food given to them in broken dish.9 So there was a positive injunction
against their incorporation in the Hindu Society.10
The Dharamsutras laid down the duties of each of the four Varnas
and such duties were based on the notion of ritual purity. All forms of
disabilities were imposed on the „lowest born‟ and they were deprived
of religious and legal rights. Crimes committed by Shudra against the
Brahmins and others were punished severely. On the other hand the
crimes committed against the Shudra were punished lightly.11
Gradually this social division was multiplied into various castes
and sub-castes. In the later Vedic period the division of society into
four Varnas became strict. Caste disabilities were enforced strictly and
secular punishments were imposed on those who deviated from the
prescribed social conduct.12 There were no chances of mobility within
7
Patrick Olivelle, Manu‟s Code of Law 388 (Oxford Univ. Press, New Delhi, 2006);
Manu Smriti, chapter I, verse 31.
8
Id., at 397, chapter I, verse 87-91: To Brahmins, Brahma assigned reciting and
teaching of Vedas, offering of sacrifices and receiving and giving gift; to Kshatriya,
he allotted protecting the subjects, giving gifts, offering sacrifices, reciting the Vedas
and avoiding attachments to sensory objects; to the Vaishya, looking after animals,
giving gifts, offering sacrifices, reciting the Vedas, trade, money lending and
agriculture, and to the Shudra, the lord allotted a single activity, the ungrudging
service of the other three Varnas. These four classes have to work within their own
spheres of work assigned to them.
9
P.V. Kane, History of Dharamashastras 163 (1974) as quoted in Infra note 11.
10
See D. Raja, ―Dalit Question and Caste-Class Issues‖, 45(18) Mainstream 11
(2007).
11
T.R. Naval, Law of Prevention of Atrocities on the Scheduled Castes and
Scheduled Tribes 6 (Concept Publishing, New Delhi, 2001).
12
Id. at 5.
58
[Vol. 1 : 1
castes inter se. Thus, the untouchables faced complete marginalisation,
subjected to severe discrimination, did the most menial and degrading
tasks and had no right to change their position in the society.13
Caste Disabilities and its Consequences
The caste system had resulted into many disabilities which further
resulted into many social consequences. The ban on inter-dining and
the rule of endogamy made the caste system rigid and there were no
possibilities of a shudra to become a priest. The shudras were denied
the sacred twice-born ceremony (Upnayana Samskara); they were not
allowed to enter into temples. They were not allowed to acquire
knowledge and it was considered a sin and a crime to give them
education. They could not even hear and recite the verses and mantras
of the religious texts.14 The denial of education resulted in illiteracy,
which in turn resulted in educational backwardness. The shudras were
not allowed to accompany the dwija and even a single look of the
untouchable by the Brahmin was considered polluting the Brahmin,
and the Brahmin has to purify himself after having a look of the sun.15
So the untouchables were ex-communicated from the rest of the
society. This ex-communication and social ostracism promoted the
practice of untouchability, which resulted in their social backwardness.
Shudras were not allowed to own property and they were not to
hold a position under the State.16 The denial of property to the dalits
made them poor and dependent on others thus resulted in their
economic backwardness. A shudra must not deviate from his path, i.e.
the ungrudging service of the twice born.17 Such notion of ungrudging
service sanctified the forced and bonded labour of shudras. Thus under
13
See National Human Rights Commission, Report on Prevention of Atrocities on
Scheduled Castes 3 (2004).
14
Gautam Sutra stresses that if any shudra hears any Veda Mantra, the molten glass
or lead should be poured in his ears, and if he recites any verse or words of the Veda,
his tongue should be cut down and if he remembers the Veda Mantras, his body
should be cut into pieces by an axe; cited in Supra note 11 at 7.
15
Ibid. Parashar Smriti, chapter VI, verse: 24.
16
Manu Smriti, chapter-X, verse 129 provides that even a capable shudra must not
accumulate wealth; for when a shudra become wealthy, he harasses the Brahmin; cf.
supra note 7 at 835.
17
Id., chapter-I, verse 71 provides that a shudra who deviates from the law proper to
him will become a Cailasake Ghost.
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ILI Law Review
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the Hindu social order the shudras and untouchables were considered
as highly defiling and unworthy of any rights but only recipient of
severe disabilities.18 Their overall backwardness made them vulnerable
to humiliations, slavery, indignities and atrocities. The untouchability
so faced by the untouchables was no lesser grave than the slavery
experienced by the ‗blacks‟ and the only difference between the two
was that the latter was not sanctioned by the religious scriptures, but
the former was an integral part of the Hindu religion. 19 The only idea
behind this graded inequality was to establish upper caste hegemony in
the society as the caste based discrimination and the caste superiority
was to maintain such hegemony and was backbone of the upper caste
domination.
III.Caste Atrocities and the Law
Our Constitutional Framers of our Constitution were well aware of the
discrimination meted out by the dalits due to the institutionalised caste
system in the Indian society. Dr. B.R. Ambedkar analysed the
dichotomy of the caste system and existing inequalities in the socio
economic sphere of the Indian society. He observed that:
“On the social plane we have an India based on the
principles of graded inequality, which means elevation of
some and degradation of others. On the economic plane we
have a society in which there are some who have immense
wealth as against many who live in abject poverty.”20
Dr. Ambedkar was of the view that the vested interests of the caste
Hindus i.e. desired monopoly over the social, economic, cultural and
political resources of the community are involved in the observation of
the untouchability. The end custom of untouchability was going on for
centuries basically because the exploited untouchables did not oppose
18
K.I. Vibhute, ―Right to Live with Human Dignity of Scheduled Castes and Tribes:
Legislative Spirit and Social Response- Some Reflections‖, 44 JILI 469 (2002).
19
Shailendra Kharat, ―Dalits and Human Rights‖, 9 (2) Journal of Institute of
Human Rights 56-57 (2006).
20
60
[Vol. 1 : 1
it.21 He maintained that if freedom in India to have any substance, the
whole caste structure had to be annihilated.22
Constitution of India and Dalit Rights
The Constitutional framers of the Constitution, in order to establish an
egalitarian social order devoid of caste system, not only tried to
reconstruct the hitherto caste-ridden hierarchical social order but also
ensure the ex-untouchables, the unfortunate victims of the caste
system, the right to equality and dignity.23
The Preamble of the Constitution proclaimed to secure to the
people of India ―social, economic and political justice, equality of
status and of opportunity and to promote fraternity assuring the
dignity of the individual‖, thus aiming at anti-caste-discrimination
aspirations. Part III of the Constitution of India provides fundamental
rights to the citizens of India to assure equality, freedom and a
dignified life. Article 14 of the Constitution of India provides for the
right to equality before law and equal protection of laws to dalits
keeping in mind the graded inequality prevalent in the Indian society.
Unlike the U.S. Constitution, the Indian Constitution provides equality
before law and equal protection of laws so that all people are
considered equal in the eyes of law and they are equally protected by
the laws of the country. Article 15 prohibits, inter alia, discrimination
on the basis of caste and allows preferences to be made in favour of
scheduled castes.24 The Constitution prevents not only future
injustices, it also gives dalits certain benefits under the law to redress
past injustices in form of positive discrimination enables the state to
make special laws and policies in favour of the scheduled castes for
21
C. Hargopal, ―Rights of Dalits: Law and Reality‖, 1 Journal of the NHRC 136
(2002).
23
24
Constitution of India, art. 15(4) provides: ―Nothing in this article or in clause (2)
of article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes and Scheduled Tribes.‖
22
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ILI Law Review
61
compensating them for the past prejudices meted out by them from
centuries.25
Article 17 abolishes the age old practice of untouchability due to
which the dalits had to face many humiliations and denial of rights.
Untouchability has been made an offence punishable by law.26 Justice
Ramaswamy in State of Karnataka v. Appu Balu Ingale27 stressed that
the Constitution and its protection bore “behind its monstrous
untouchability relentlessly practiced for centuries dehumanizing the
dalits”. In a continuing effort to ensure that the aims of article 17 are
fully realized, Parliament came out with the Untouchability (Offences)
Act, 1955.28 The Act confers civil rights and provide for redressal of
the violations of such rights arising out of untouchability.
Keeping in mind the impact of religion on the lives of the people in
this country and specially the impact of religion on the practice of
untouchability, the right to religion has been subjected to other
provisions of Part III that seems to suggest that the practice of
untouchability cannot be justified in the name of religion. So the
secularist principle underlying the Constitution appears to tear down
the seemingly ―impregnable walls of separation‖ among Hindus.29
To break the notion of ungrudging service of the upper castes by
the lower castes, article 23 the Constitution prohibits bonded labour so
that their exploitation by the upper caste people can be eliminated. To
provide the scheduled castes political representation, the constitution
provides reservations in the elections to the Union Parliament, State
Legislative Assemblies, Panchayats and Municipal Committees.30 The
dalits are further provided with reservations in Union and State
services to uplift the dalits economically. All these aim to help remove
25
Willian J. Eisenman, ―Eliminating Discriminatory Traditions against Dalits: The
Local Need for International Capacity-Building of the Indian Criminal System‖, 17
Emory Int‟l L. Rev. 146 (2003).
26
Id., art. 35 of the Constitution of India enables the Parliament with exclusive
power to make law prescribing punishments for the acts made punishable under Part
III. Parliament has enacted Untouchability (Offences) Act, 1955, for prescribing
punishment for the offence of ‗Untouchability‘.
27
AIR 1993 SC 1126.
28
Renamed as the Protection of Civil Rights Act in 1976.
29
See Supra note 25.
30
Supra note 24. arts. 330, 332, 243(D), 343(T) respectively.
62
[Vol. 1 : 1
poverty and backwardness that exist, so that dalits can be provided
equal status in the society.
In addition to the constitutional safeguards, other laws have been
enacted to nullify sanctions of any customary laws enforcing
degrading and humiliating practices. The Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
eliminates the most degrading practice of manual scavenging of
human excreta by members of scheduled castes. But the irony is that
though long outlawed, the practice of manual scavenging continues in
most states. In 2002-03 the Union Ministry for Social Justice and
Empowerment admitted the existence of 6.76 lakh (676,000) manual
scavengers in India and the presence of 92 lakh (9,200,000) dry
latrines, spread across 21 states and union territories. According to
unofficial estimates, the number of manual scavengers in India may be
as high as 1.3 million.31
The Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989
Various means to improve the socio-economic conditions of dalits
remained unsuccessful and they remain vulnerable to caste based
atrocities. The Protection of Civil Rights Act, 1955 was never accepted
by the upper castes as after passing of this Act, dalits were being
denied number of civil rights and subjected to atrocities for various
historical, social and economic reasons.32The increasing incidents of
atrocities hindered the effective implementation of the Protection of
Civil Rights Act.
Rajendra Kumari Bajpai, while moving the Scheduled Castes and
Scheduled Tribes Bill in the Parliament admitted the fact of increasing
incidents of atrocities on dalit is a sequel of preferential treatment
given to them by the State. She said that:
“When they assert their rights and resist practices of
untouchability against them or demand statutory minimum
31
Human Rights Watch, Hidden Apartheid: Caste Discrimination against India's
Untouchables 83 (2007), available at:
http://www.chrgj.org/docs/IndiaCERDShadowReport.pdf (visited on Oct. 28, 2009).
32
See Supra note 11 at 24.
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ILI Law Review
63
wages or refused to do any bonded or forced labour, the
vested interest tries to cow them and terrorize them. When
the scheduled castes and scheduled tribes try to preserve
their self-respect or honour of their women, they become
irritants for the dominant and the mighty…”33
The dalits were subjected to atrocities like making the person of
the scheduled caste to eat inedible substances like human excreta,
raping the scheduled caste women and forcing the scheduled caste
women to parade nude in the public, mass killings of dalits, arson etc.
So in order to prevent caste based atrocities on dalits the Parliament
enacted the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred as anti-atrocities law).34
Atrocity
The SC/ST (Prevention of Atrocities) Act, 1989 makes punishable a
dozen acts of atrocities against a member of the scheduled caste and
scheduled tribes. According to anti-atrocities law the following acts
are ‗Atrocities‘ against scheduled caste and scheduled tribes:
Offences against human dignity like forcing the SC/ST members to
eat inedible or obnoxious substances,35 dumping excreta or obnoxious
substances with intent to cause injury, insult or annoyance,36 stripping,
dishonoring or outraging modesty of a SC/ST women37 and her sexual
exploitation,38 forced or bonded labour,39 intentional public
humiliation,40 property related offences like wrongful cultivation41 or
dispossession42 of land, wrongful eviction from land, premises, house
or other place of residence or village,43 unauthorized interference with
33
Statement of Object and Reasons, Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
34
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
came into force on Jan. 30, 1990.
35
Id., s. 3(1) (i).
36
Id., s. 3 (1) (ii).
37
Id., s. 3 (1) (iii), (xi).
38
Id., s. 3 (1) (xii).
39
Id., s. 3 (1) (vi)
40
Id., s. 3 (1) (x).
41
Id., s. 3 (1) (iv).
42
Id., s. 3 (1) (v).
43
Id., s. 3 (1) (xv).
64
[Vol. 1 : 1
the enjoyment of rights over land and water,44 offences like
intimidation or coercion of voters to either abstain from voting or to
vote for a particular candidate,45 enforcing social disabilities like
corrupting or fouling water used by members of SC/STs,46 denial of
rights of passage or entry to public places,47 abusing legal process like
insulating false, malicious or vexatious legal proceedings,48 furnishing
false or frivolous information to a public servant49are made punishable
with an imprisonment for a term not less than six months but nor more
than five years and with fine. Further, giving or fabricating false
evidence leading to the conviction of a SC/ST person,50 causing
disappearance of evidence against offenders guilty of atrocities,51
committing mischief by fire and other explosive substances with an
intention to cause damage to the property of the SC/ST people52 are
made punishable with death sentence, life imprisonment and
imprisonment for a term between six months to seven years with fine.
Salient Features of the Act
The anti-atrocities law also provides for the establishment of the
special court for the speedy trial of offences of atrocities, 53 the
appointment of the special public prosecutor;54 stipulates enhanced
punishment for subsequent conviction under the Act,55 makes a nonscheduled caste ‗public servant‘ criminally responsible for his ‗willful
neglect‘ of his duties required under this Act,56 denies to the accused
the statutory anticipatory bail,57 and disentitles a convict (above 18
44
Id., s. 3 (1) (xiv).
Id., s. 3 (1) (vii).
46
Id., s. 3 (1) (xiii).
47
Id., s. 3 (1) (xiv).
48
Id., s. 3 (1) (viii).
49
Id., s. 3 (1) (ix).
50
Id., s. 3 (2) (i).
51
Id., s. 3 (2) (vi).
52
Id., s. 3 (2) (iii).
53
Id., s. 14.
54
Id., s. 15
55
Id., s. 5.
56
Id., s. 4.
57
Id., s. 18.
45
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ILI Law Review
65
years of age) for his release on probation.58 Under the anti-atrocities
law the state government is made responsible to take adequate
measures regarding facilities like legal aid to provide them
representation, traveling and maintenance expenses including the
victim of atrocities, provision regarding economic and social
rehabilitation of the victims of atrocities etc.59
So anti-atrocities law provides for a more severe punishment for
the offences of atrocities. The Act made punishable the very acts of
humiliations and discrimination resulting in disabilities and indignities.
The Act provides for punishment for the denial of certain civil rights to
dalits like preventing a scheduled caste from casting his vote,
unauthorized interference with the right to enjoyment of land and
water, fouling the water used by the members of the scheduled castes
etc. by including such denial within the purview of atrocity. It also
provides for the rehabilitation and compensation to the victims of
atrocities which are salutary provisions of this Act. Besides the antiatrocities Act, the SC/ST (Prevention of Atrocities) Rules, 1995,
framed under the Act provides for a comprehensive legislative
mechanism to achieve the aims of the anti-atrocities Act. So the Act
and the rules framed there under intend to prevent the inhuman
sufferings, indignities, humiliations and oppressive harassment and
exploitation of the persons belonging to the scheduled castes and
thereby try to assure them the hitherto denied right to live with dignity.
IV. Atrocities on Dalits and Human Rights
Despite the legal safeguard provided for the protection of the
scheduled castes from caste based atrocities and discrimination, the
atrocities on dalits are not coming to an end and dalits are still meted
out with various forms of atrocities in different parts of the country.
The Constitution of India aimed at constructing an egalitarian social
order free from all caste based prejudices but Dr. B.R. Ambedkar,
while speaking on the eve of the moving of the Draft Constitution in
1949, showed his non-challengeable fear regarding the existing
inequalities in the Indian society while he observed that:
58
59
Id., s. 19.
Id., s. 21.
66
[Vol. 1 : 1
“On 26th January 1950, we are going to enter into a life of
contradictions. In politics we will have equality and in the
social and economic life we will have inequality. In politics
we will be recognizing the principle of one man, one vote
and one vote, one value. In our social and economic life,
we shall, by reason of our social and economic structure,
continue to deny the principle of one man, one value.”60
The words of Dr. Ambedkar seems to have become true as even
after the 60 years of independence the dalits are denied their social and
economic rights and they are being subjected to various types of
atrocities. We have the equality on papers but the ground reality
providing an example of inequalities in the society. The anti-atrocities
law has not fully successful in preventing the incidents of atrocities on
dalits due to its under-enforcement. The cases of atrocities are reported
in increasing number throughout the country and many a times they go
unreported because of the reluctance of the scheduled castes and
distrust in police among them. Due to the ineffective implementation
of the anti-atrocities law and lack of strong will on part of the state to
prevent the atrocities, the crimes or atrocities against the scheduled
castes are still persisting.
In 2003, a 38 years old woman was allegedly forced to drink
excreta mixed with water in front of her husband and children after she
spurned the advances of upper caste villagers in Keela Urappanur
village in Thirunanaglam block of Madurai District.61 On December 1,
1997 armed Ranvir Sena activist entered a 14 dalit homes in
Laxmanpur-Bathe village in Bihar and killed a total of sixty-one
people: sixteen children, twenty-seven women, and eighteen men. In
some families, three generations were killed. The main reason for the
attack was that the Bhumihars wanted to seize fifty acres of land that
had been earmarked for distribution among the landless labourers of
the village. The authorities apparently knew of the tensions but had not
cared to intervene in the land dispute and nip the trouble in the bud and
60
See supra note 10.
Indian Express, Sep. 30, 2003, as quoted in Jimmy Dhabi, ―Dalit Human Rights:
Issues and Perspective‖, 54(1) Social Action 33(2004).
61
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ILI Law Review
67
instead allowed things to come to head.62 In August, 2005, in Gohana
(Haryana), 20 dalit homes were torched by the upper caste (Jats) on a
decision taken at a meeting of a Khap Panchayat to teach a lesson to
the dalits in retaliation to alleged killing of one Jat member, Baljit
Siwach, by the dalit community people.63
Causes of Atrocities:
A. Caste Hatred and Untouchability
The age-old caste hatred and practice of untouchability is at the root of
the atrocities against dalits. The internalization of their suppression by
the dalits is one of the reasons due to which incidents of atrocities go
unreported. Even when they try to raise their voices against the
prejudices and derogatory treatment meted out to them, their voices
are pressed either through the mighty caste Hindus or by the state
instrumentalities by their positive action against them or by inaction
(omission) by colluding with the caste Hindus. In February, 2006, in
Mahmadpur (Haryana), at the instigation of a Rode (an upper caste)
sarpanch, 30 dalits were seriously injured because the dalits were
trying to take out a procession on the eve of Ravidas Jayanti.64 So this
indicates the caste hatred prevalent among caste Hindus that prevents
the dalits to enjoy their rights in a free manner and thus results in
atrocities.
B. Illiteracy and poverty
Illiteracy among dalits makes them unaware of their rights. Due to
unawareness they are unable to approach the appropriate forum for the
protection and enforcement of their rights and therefore that also
encourages atrocities to go on. Even if they have such awareness, they
do not have adequate resources to have their rights get remedied.
62
―Murder and Mayhem‖, The Hindu, December 14, 1997, as cited in supra note 2 at
60.
63
―Dalits Atrocities: September to December 2005‖, Human Rights News Bulletin,
available at: http://www. indianet.nl/dalitatroc0509.html (visited on Nov. 14, 2009).
64
―Justice
for
Dalits
Still
a
Dream‖
available
at:
http://www.hinduonnet.com/2006/05/11/stories/htm (visited on Oct. 12, 2009).
68
[Vol. 1 : 1
Abject poverty makes them dependent on the upper caste people in
matters of livelihood and work. Whenever they get some land from the
state that also makes them vulnerable to atrocities as the upper castes
people do not take it very kindly. The instances are not uncommon
where the upper caste people have even tried to seize the land allotted
to the scheduled castes by the Government. So their economic
dependence on the upper caste people and their backwardness and
unawareness are also among the causes of infliction of atrocities on
them. In September 2006, in Maharastra‘s Bhandara district‘s village
Khirlanji, the upper caste people killed four members of a dalit family
that was resisting land expropriation.65
C. Self-Assertion by the Scheduled Castes
Due to the awareness created among the scheduled caste by education,
whenever they tries to assert their rights, such assertion is meted out
with the might of the upper castes and results in atrocities because
such assertion of rights runs counter to the dominance of the upper
caste in the society. On December 25, 1968 as many as 42 dalits were
burnt to death when upper caste hooligans locked them up in a hut and
set it on fire in Kilvenmani in Tamil Nadu‘s Tanjavur. That was after
the dalit agricultural labourers had decided to protest against low
wages and had started getting organised.66
D. Lack of Political Will - State Complicity
State complicity is also a reason for the increasing atrocities on dalits
because the persons in power are among the upper castes who do not
take keen interest in preventing atrocities on dalits rather connive with
the perpetrators of atrocities. Though the state has played an important
role in protecting the rights of dalits still the state‘s complicity with
65
Manoranjan Mohanty, ―Kilvenmani, Karamchedu to Khairlanji: Why Atrocities on
Dalits
Persist‖,
available
at:
http://www.boellindia.org/download_en/mohanty_amrita_corrected.pdf (visited on Oct. 16 2009).
66
Ibid.
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ILI Law Review
69
upper castes especially in case of the police shows the acquiescence of
the state as a whole.67
Police and Dalits
The police have the responsibility to protect the people being an
instrumentality of the State. But the police do not seem to protect
dalits rather in many cases it perpetuate violations of human rights of
dalits by allowing themselves to be prejudiced by their own caste
biases. Corruption and biases mark the ground reality of police
activity.68 Under reporting of cases is a very common phenomenon.
An NGO in Gujarat, in a study covered 11 atrocities-prone districts for
four years, showed that 36% of atrocities cases were not registered
under anti-atrocities law, and in 84.4% of the cases where provisions
of the Act were invoked, the cases were registered under wrong
provisions with a view to conceal actual and violent nature of the
incidents.69
The National Human Rights Commission (NHRC) in its report
stated that “[P]olice resort to various machinations to discourage
scheduled castes/scheduled tribes from registering cases, to dilute the
seriousness of the violence, to shield the accused persons from arrest
and prosecution and, in some cases, the police themselves inflict
violence”.70 Cases are not registered despite merit, and if registered
then charge sheets are invariably filed late. Police collusion with
offenders, manipulation of evidence and intimidation of witnesses,
filing of counter cases against the scheduled castes on false grounds
and investigation by inappropriate authority resulting in closing of the
case, led to the ineffectiveness of anti-atrocities law. The causes of
police biases are varying, for example majority of upper-caste people
in police force, prevalent corruption in police system, pressure from
political people etc.
The police also itself inflict atrocities on dalits. The Ramabai
killings reflect the police atrocities on dalits. Ten peoples were killed
67
Ibid.
Supra note 25 at 159. (A 1978 survey revealed that over 70% of the population
believed the police to be corrupt).
69
Supra note 13 at 33. (Study conducted by NGO Navsarjan in the State of Gujrat).
70
Id. at 25.
68
70
[Vol. 1 : 1
in police firing in Ramabai colony in Bombay on July 11, 1997 as they
were protesting against the desecration of the statue of Dr. Ambedkar.
Sub inspector M.Y. Kadam, who had a number of atrocities cases
pending against him, ordered open firing on the protestors without
making any effort to disperse the crowd. Most of the victims were shot
above the waist. After the incident, the members of the dalit
community were refused to lodge any complaint.71
The above incident highlights the fact of prevalence of ill-will
against the scheduled castes, efforts to hurt the feelings of the
scheduled castes, arbitrary police actions and caste affiliations
undermining and hampering the effectiveness of the anti-atrocities law
and thereby endangering the rights of the scheduled castes.
Police practice of raiding the dalit villages in Bihar to search out
naxalites militants and falsely arresting the accused of harbouring the
naxalites is also in vogue. Human Rights Watch describes the
“pattern” of raid conducted by the police in Bihar:
―The pattern of raids consisted of arbitrary arrests and
assaults on dalit men and women and often included
looting and destruction of property. In some cases, police
remove their badge numbers so villagers would not be able
to identify and file cases against them. Studies conducted
by the Tamil Nadu Commission for Scheduled castes and
Scheduled tribes in various southern district villages
concluded that attacks on these [dalit] villages were
motivated by a desire to cripple dalits economically by
targeting obvious symbols of newfound wealth. ‖72
So it is disgusting that the protector of the law, who are entrusted
with the duty to protect and safeguard the scheduled castes, commits
atrocities on them. The state complicity and lack of political will on
part of the state has turned the anti-atrocities law ineffective.
Judiciary and Dalits
In India, the judiciary is enjoined with task to safeguard the rights of
the people from undue encroachment. The judiciary has to uphold the
71
72
Supra note 2 at 127-132.
Id. at 102.
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71
constitutional mandate to provide justice to all. But the lower judiciary
has failed to internalise this duty, and many a times the judges are
governed by their caste biases and affiliations. In July 1998, an
Allahabad High Court Judge had his chambers ―purified‖ with water
from the river Ganges because a dalit Judge had previously occupied
it.73 When dalits appear before the courts as victims of abuse, they are
often treated with indifference by the lower judiciary. Incidents are not
uncommon when the members of the lower judiciary can be seen to
have an anti-dalit attitude which also affects and reflects in the
decision making by the judges.
A ridiculous instance worth citing here is that of the rape of a
social worker, Bhanwari Devi in Rajasthan which came before the
Supreme Court in the famous case of Vishakha v. State of Rajasthan,74
where the judge‘s anti-dalit attitude was clearly reflected in the
decision of the case at the district level. Although the National
Commission for Women concluded after a long inquiry that all
evidence proved beyond any doubt that the victim was gang raped, the
sessions court acquitted all the five defendants from the charge of rape
because, among other things, the judge did not find it credible that
upper caste men would rape a lower caste women.75 This disgusting
instance is indicative of the attitude of the lower judiciary towards the
causes of the scheduled castes. Where the judges are being driven by
their caste convictions and caste affiliations then how can one express
its trust in the impartiality of the judiciary.
The Public Prosecutors also seem to have hostile tendencies
against dalits which results in collapse of cases under the antiatrocities law. Vajibhai Patel, the Secretary of Council for Social
Justice, made a detailed study of 400 judgments passed by different
district courts of Gujrat, observed that utterly negligent police
investigation at both the higher and lower levels coupled with a
distinctly hostile role played by the public prosecutor is the main
reason for the collapse of cases filed under anti-atrocities Act. The
73
AIR 1997 SC 3011.
75
Ruma Pal, ―Redress for Violence against Women in India‖, 8 Developing Human
Rights Jurisprudence 7(1998) - (citing unreported judgment of the Rajasthan Trial
Court dated November 15, 1995), as cited in Avani Mehta Sood, ―Redressing
Women‘s Rights Violations‖, 1 Jindal Global Law Review 147 (2009).
74
72
[Vol. 1 : 1
study also nullifies the common perception that inefficiency in antiatrocities law is due to false complaints being lodged or compromise
between the parties, but in reality it is the state complicity that has
rendered the Act ineffective.76
Further, the special courts77 constituted under anti-atrocities law
cannot take cognizance of cases of atrocities as a court of original
jurisdiction unless the case is committed to it by a Magistrate as
required under Code of Criminal Procedure, 1973.78 The Judiciary has
time and again reiterated this requirement as to committal of a case to
the court of sessions under the anti-atrocities law. In Gangula Ashok v.
State of Andhra Pradesh,79 the Supreme categorically said that section
193 of the Code imposes an interdict on all the courts of sessions,
unless expressly exempted by the Code itself or by any other law,
against taking cognizance of any offence as a court of original
jurisdiction. The object as to the speedy disposal of cases stands
defeated as, in the absence of any special procedure prescribed under
the anti-atrocities Act, the special court has to follow the ordinary
procedure of taking cognizance which is prolonged and arduous.
Thus the state, which must act towards protecting the rights of
dalits, is in fact, hindering the peaceful exercise of their rights either
through its active participation in the incidents of atrocities or through
its connivance. The state, which must act towards the realisation of the
social justice for this underprivileged class, is deviating from its path
by conniving in the atrocities on dalits.
Caste-Race Issue
The new emerging trend which is being seen in the international arena
is to recognise caste-based discrimination as equivalent to racial
76
Subhash Gatade, ―A New Milestone in the Movement for Dalit Emancipation‖,
45(39) Mainstream 21 (2007).
77
Constituted under s. 14 of the SC/ST (Prevention of Atrocities) Act, 1989. (The
court of sessions to be a special court).
78
S. 193, Code of Criminal Procedure, 1973 provides that, “Except as otherwise
expressly provided by this Code or by any other law for the time being in force, no
Court of Sessions shall take cognizance of any offence as a court of original
jurisdiction unless the case has been committed to it by a Magistrate under this
Code.”
79
AIR 2000 SC 740.
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ILI Law Review
73
discrimination and to deal with it under the Convention on Elimination
of All Forms of Racial Discrimination. The United Nations Human
Rights Council held in Geneva on September 2009, deliberated on the
recognition of caste as race and proposed to ensure that descent and
work based discrimination are require to be fought at the international
level. It stated that this type of discrimination is typically associated
with the notion of purity and pollution and practices of untouchability
and is deeply rooted in societies and cultures where this discrimination
is practised.80 Millions of people face caste based discriminations
which are associated with notion of purity, pollution and practices of
untouchability. Such notions are deeply rooted in the Indian society
and have also assumed cultural forms.81 But the move as to deal with
the caste based discrimination at the international level is getting
vehement opposition from the Indian government itself. The Indian
government has taken an adverse stand on this caste-race issue by
repeatedly pointing out that this is not discrimination based on race
and caste is not similar to race but peculiar to Indian society. But such
view does not take note of the fact that the definition of "racial
discrimination" under the International Convention on the Elimination
of All Forms of Racial Discrimination; article 1, includes within its
purview discrimination on the basis of descent (birth).82
The caste discrimination is very much falling in the category of
racial discrimination and any opposition to the same have no rationale
altogether. The view that there is no black-white issue in India forgets
to take account of the institutionalised discrimination which takes
place on the basis of birth in a particular caste is much more grave in
nature and very much similar to the discrimination based on race.
In India, the number affected is greater, the poverty is deeper, and
80
―How India Flip-Flopped over Caste and Race at UN‖, Times of India, Oct. 4,
2009.
81
Ram Puniyani, ―UN Anti-Caste Charter: Annihilation of Caste‖, available at:
http://www.pluralindia.com/issues-in-secular-politics.php?id=233 (visited on Nov.
23, 2009).
82
Article 1 of the Convention on Elimination of All Forms of Discrimination defines
‗Racial Discrimination‘ to mean- “any distinction, exclusion, restriction or
preference based on race, colour, descent or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedom in the political,
economic, social, cultural or any other field of public life.”
74
[Vol. 1 : 1
the atrocities are every day affair. The population of dalits in India
equals more than half the population of the United States. A majority
of dalits live on less than US $1 per day.83 According to the National
Campaign on Dalit Human Rights, 27 atrocities are committed against
dalits every day, 13 dalits murdered every week, 5 dalits‘ homes or
possessions burnt every week, 6 dalits kidnapped or abducted every
week, 3 dalit women raped everyday, 11 dalit beaten everyday and a
crime is committed against a dalit every 18 minutes in India.84 So
there is every reason for dealing with caste discrimination at the
international level keeping in mind the state‘s failure in protecting the
human rights of dalits in India.
Even in 1965, India itself proposed the amendment in the CERD to
include ‗descent‘. K.C. Pant while moving the amendment admitted
that ―certain groups of the same racial stock and ethnic origin as their
fellow citizens had for centuries been relegated by the caste system to
a miserable and downtrodden condition‖.85 But after that (especially
since 1996), India took the stand that caste based discrimination does
not fall within the scope of the CERD. In its concluding observations
the Committee on CERD recommended that the India‘s next report
should include the information regarding the implementation of
measures for the protection of the Scheduled Castes.86 But the
government never changed its stand which is quite unfortunate.
Further, the political-cum-religious groups like BJP and RSS are
coming into opposition of this issue. Their opposition to this issue is
quite explicable as their politics is based around the goal of Hindu
Rashtra.87 The caste is an inseparable part of Hindu society and such
attacks on and recognition of caste based discrimination at the
international level is very much an issue for opposition by a political
party like BJP. So the inherent vested interests are coming in
opposition of the caste-race issue. As rightly pointed out by the NHRC
it is not so much the nomenclature of the form of discrimination that
83
―27 Atrocities against Dalits‖, available at: http://www.ncdhr.org.in/esdi/2-dalithouses-are-destroyed (visited on Oct. 17, 2009).
85
Supra note 80.
86
Concluding Observations of the Committee on Elimination of All Forms of Racial
Discrimination, 1996, (CERD/C/304/Add. 13); as cited in supra note 2 at 265-271.
87
Supra note 81.
84
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75
must engage our attention but the fact of its persistence that must
cause concern.88 The attention must be given to the gravity of the
caste-descent based discrimination and the growing human rights
violations of the scheduled castes in India and steps must be taken at
the international level to tackle with the problem rather than
concentrating more on the nomenclature of the form of discrimination
i.e. caste or race.
V. Conclusion
The caste based atrocities are still persisting in the world‘s largest
democracy despite the legal safeguards, and the human rights of this
group are under a cloud of danger which quite often burst upon them
making them vulnerable and denying them their right to be human.
The caste based discrimination is comfortably taking breath in a
hierarchical society ruled by the principle of graded inequality thus
challenging the constitutional mandate of establishing an egalitarian
social order. The ineffective implementation of the anti-atrocities law,
under-reporting of atrocities cases, along with the inherent vested
interests in maintaining the caste discrimination, are the reasons for the
perpetuating atrocities. Improper investigation in atrocities cases
results in low conviction rates. According to the NHRC annual report
27,894 cases were registered under the Atrocities Act in 2002 and only
2.31% of cases resulted in conviction compared against the high
number of atrocities reported against dalits. The low rate of conviction
is the result of varying factors like caste bias of the prosecutors as well
as other organs of justice, including the judiciary and the law
enforcement machinery‘s lack of familiarity with the provision of the
relevant legislation.89 A check on the law enforcement machinery in
this regard is much needed and requires legal scrutiny.
As the state has, to a large extent, failed to prevent the atrocities on
dalits, the role of the civil society becomes very important in the
protection of their human rights. Many NGOs are working in this field
and have done a lot of research in this regard but due to lack of any
follow-up mechanism their efforts results in frustration. Human Rights
88
89
76
[Vol. 1 : 1
Watch in its Report ―Broken People‖ has recommended the
government to take measures to prevent further violence and prosecute
state and non- state actors responsible for caste motivated attacks. It
has recommended the government to disband the ‗Ranvir Sena‘ and
also advocated and recommended to make adequate land reforms to
resolve the caste based discrimination. Attention must be paid to the
recommendations made by the human rights NGOs in this regard.
Necessary mechanism must also be established for follow-up of the
reports prepared by various human rights NGOs.
Adequate steps must be taken to effectively implement the antiatrocities law and to remove the flaws in it. The special courts to be
constituted under the Act must be given the power to take cognizance
of cases as a court of original jurisdiction for speedy trial of atrocities
cases and therefore effect of Supreme Court‘s ruling in Gangula
Ashok‟s Case90 requires to be undone.
In states like Haryana, the activities and the decision making of the
‗Khap Panchayats‘ and their legitimacy must be brought under the
legal scrutiny.91
The NHRC, in its report on atrocities, has made important
recommendations which require adequate attention to prevent
atrocities and also for the effective implementation of the antiatrocities law.92 National Commission for Scheduled Castes must be
90
See Supra note 79.
See Supra note 63.
92
The NHRC, inter alia, recommended to the government to prepare a manual of the
implementation of the Atrocities Act, training of officials, annual workshop of
district magistrate and superintendents of police, establishment of exclusive special
courts where volume of cases is large, creation of state and district level monitoring
and vigilance committees with adequate participation of the human rights
organizations working for scheduled castes in deliberations of these committees. It
also recommended the immediate identification of the atrocity prone areas,
monitoring by itself of the provisions regarding payment of compensation to victims
of atrocities and their rehabilitation and recommended that value of the property
destructed in the course of atrocities against dalits should be included in the
compensation package. It also recommended the amendment in anti-atrocities law
with a view to undoing the effect of the judgment of the Supreme Court in Gangula
Ashok‟s Case. The NHRC also recommended that the state government should train
social workers from the scheduled castes in each village of atrocities prone areas to
help the victims in taking up their complaints. NHRC recommended the posting of at
least one women functionary in each station in atrocities prone areas and in case of
serious complaints against women investigation must be carried out by women
officer. Further it recommended that in each blocks a women social welfare officer
91
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ILI Law Review
77
provided with strong investigation and legal wing to investigate cases
and made research and be provided with adequate budgetary funds to
facilitate the tasks of the Commission.
The Protection of Human Rights Act also needs to be amended.
The bar on complaints filed after one year of the incident is required to
be removed because many a times the incidents of atrocities on dalits
come to light after a period of one year either because of the nonreporting by the victim or the incidents of atrocities are brought into
limelight by NGOs after a period of one year.93 In that case NHRC
becomes helpless as this helplessness or the limitation is also upheld
by the Supreme Court in N.C. Dhoundial v. Union of India.94 These
recommendations need immediate attention for securing the human
rights of dalits and for tackling atrocities.
Endogamy is the peculiar feature of the caste system in India and
also a hindrance in bringing out change in the mindset of the upper
caste people. Inter-caste marriages may help in bringing change in the
outlook of the society so the government must encourage inter-caste
marriages.
Poverty and economic dependence of the scheduled caste on the
upper caste are the major factors for growing atrocities.95 Though
affirmative measures in the form of reservations have been taken by
the government but this affirmative measures have not reached to the
needy. The data have demonstrated that the reservation benefit have
or child development officer be posted to entertain complaint regarding violence
committed against SC women which are not registered by competent authority and
officially pass it to the concerned authority with a copy to district magistrate for
taking up necessary investigation. See supra note 13 at 201-215.
93
Art. 36(2), Protection of Human Rights Act, 1993; The NHRC cannot inquire into
any matter after the expiry of one year from the date on which the act constituting
violation of human rights is alleged to have been committed.
94
AIR 2004 SC 1272; Supreme Court rejecting the view of NHRC as to the principle
of continuing wrong or recurring cause of action and observed that if the view is
accepted it would make Section 36(2) a dead letter. The court held that it is a
jurisdictional bar and there is no provision in the Act to extend the said period of
limitation. The commission which is the creature of a statute is bound by its
provisions.
95
85% of dalits forms part of the rural population. Over 75% of dalits performs land
connected work, 25% as marginal or small farmers and over 50% as landless
labourers earning less than US $1 per day. Though they are only 16% of the total
population, dalits constitute 60% of those below the poverty line. Anand Teltumbde,
―Globalization and Dalits‖, as cited in Supra Note 1 at 285.
78
[Vol. 1 : 1
only reached to a few small portion of this group.96 The special plans
described as powerful mechanism for ensuring dalit economic
empowerment has itself been thwarted in its application and
implementation by administrative agencies at the central and state
level either by inadequate investment of public resources, nonutilisation or diversion of funds earmarked for dalit empowerment.97
So the economic empowerment of the scheduled castes is a tool to
minimise the incidents of atrocities as the economic dependence
makes the scheduled castes vulnerable to atrocities. So the need is to
implement the economic measures in the true spirit for uplifting the
scheduled castes.
The law must play a role in changing the status of the scheduled
castes in the society and must prevent these atrocities as these
atrocities struck at the very base of human rights that is human dignity
and thus denies to a large segment of the society the rights to be
human. The international community also must recognise the caste
based discrimination as a human rights issue and this problem must be
tackled at the international level and the India must abandon its hard
stands which does not have any rationale behind it.
96
According to 1996 estimate only 1.1 Million out of the then population of 138
Million were employed in sectors that fall under the domain of reservations, a paltry
0.8%. With the privatization of public sector industries since the advent of economic
reforms in India in the early 1990s, that percentage has likely declined. S.M. Michael
(ed.), Dalits in Modern India: Vision and Values (SAGE Publications, Los Angeles,
2nd edn., 2007), as cited supra note 1 at 313.
97
According to the National Campaign on Dalit Human Rights, during the past five
year plan period, an average of 2 billion Euros ( US $2.96 billion) per year was
illegally diverted from these funds; National Campaign for Dalit Human Rights,
Background of the Dalit Situation in India (September 2007). The figure is
calculated from: Expenditure Budget II (Notes on demands for Grants), Union
Budget 2006-07; Statement No. 21, Expenditure Budget I, Union Budget 2006-07;
Outcome Budget 2006-07 for various Ministries of Central Government), as cited in
supra note 1 at 302.
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79
CYBERSQUATTING: PITS AND STOPS
Slahuddin Ahmed
Abstract
This article shall begin by outlining the domain name disputes and the problem of
cybersquatting. The main thrust of the article shall be to consider how the authorities
react to allegations of cybersquatting and attempt to analyze whether this has been
sufficiently effective as far as India is concerned. First of all, the US approach and
their specific Anti-cybersquatting legislation shall be discussed. Then, the dispute
resolution under Uniform Dispute Resolution Policy (UDRP) to deal with
cybersquatting cases shall be considered. The next part of the article shall look at
the Indian approach of dealing with the matter. And the final part shall suggest
reforms in the prevailing law regarding the issue in India.
I. Introduction
THE INTERNET is truly revolutionary. It has created endless new
opportunities for the citizens of cyberspace, ones that were not
possible in the old, real world. The growing importance that the
internet has played in consumers' lives and the world-wide change in
consumption habits has turned it into a powerful tool for businesses to
promote, advertise, and sell products and services.1 Unfortunately, as
with most tools, not all uses of the Internet are laudatory, or even
benign. As anyone who has ever had his computer attacked by a virus
or read about ‗cyber fraud‘ knows, the Internet is also a prime arena
for dishonest and unlawful conduct. Unscrupulous Internet behavior
includes trademark infringement. Many businesses have fallen prey to
so-called cybersquatters, individuals who register Internet domain
names containing trademarks of others.2
The classic cybersquatting scam works as follows: The
cybersquatter registers an Internet address (known as a ‗domain
name‘)3 that includes another person's trademark. For example, the

Zohar Efroni, ―The Anticybersquatting Consumer Protection Act and the Uniform
Dispute Resolution Policy: New Opportunities For International Forum Shopping?‖,
26 The Colum. Jour. of Law & the Arts 335 (2003).
2
Michael P. Allen, ―In Rem Jurisdiction from Pennoyer to Shaffer to the
Anticybersquatting Consumer Protection Act‖, 11 George Mason L. Rev. 243 (2000).
3
Domain names are the familiar and easy-to-remember names for Internet locations.
It is easier to reach a company's web site if its domain name corresponds to the
1
80
[Vol. 1 : 1
cybersquatter might register the domain name ‗coke.com‘ containing
the trademark ‘Coke‘ held by the CocaCola Company. Thereafter, the
cybersquatter tries to sell the "coke.com" domain name to the
CocaCola Company. A company in CocaCola's position is often
willing to pay a ransom to the cybersquatter because of the importance
of a domain name in the increasingly Internet-focused business world.
This is so because the domain name directs an Internet user to a
particular web site. As a business matter, CocaCola simply has to
ensure that someone using the Internet address ‗coke.com' would reach
CocaCola.4
II. Domain Name Disputes
Before examining cybersquatting, it is necessary to place in
context the technical background against which these disputes have
arisen. First, it is important to note that the Domain Name system
(DNS) was introduced not for any technical functioning necessity but
solely with the purpose of aiding users; in as much as they can be
remembered more easily. This is because the actual addresses are
known as Internet Protocol (IP) and are composed of four sets of
numbers, between 0-255 separated by dots, such as 123.245.35.67. As
Black5 says, the DNS simply provides a mapping service which links
the given name and the corresponding Internet Protocol. Domain
names are assigned on a first-come, first-serve basis.6
Domain names consist of a hierarchically structured character
company's name or leading product. For example, Ford Motor Company's web site
may be accessed at "ford.com." Domain names map the unique Internet Protocol (IP)
numbers that serve as routing addresses on the Internet. The domain name system
translates Internet names into the IP numbers needed for transmission of information
across the network. Every computer connected to the Internet is assigned a numeric
address. This address is in the form of numbers, such as 123.112.101.1. Because
these long numbers are difficult to remember, the Internet authorities permit
assignment of comparable alphanumeric addresses to each numeric IP address. For
example, the domain name "microsoft.com" is also reachable at 207.46.193.254.
4
5
William Black, ―The Domain Name System‖ in Edwards and Waelde (eds.), Law
and the Internet: A Framework for Electronic Commerce 125 (Hart Publishing Co.,
Oxford, 2000).
6
Stacy B. Sterling, ―New Age Bandits in Cyberspace: Domain Names Held Hostage
on the Internet‖, 17 Loyola of Los Angeles Entertainment L. Rev. 733 (1997).
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ILI Law Review
81
string of numbers that function as an Internet address. They are the
equivalent of telephone numbers or addresses. Since numbers are more
difficult to remember, alphabetical domain names were developed to
make the addresses easier for humans to remember and use when
communicating on the Internet. Such names are often catchy words or
well-known names of individuals or companies, for example,
‗nokia.com‘ or ‗samsung.com‘. Thus, a domain name is a popular
substitute for the all-numeric IP address of a particular server.7
Broadly, domain name disputes have arisen in two contexts. In the
first, an individual or organization with no other rights to a name may
register a domain name with that name. This may be for several
objectives – extortion appropriation of goodwill, diversion of webtraffic, defamation, etc. the second kind of conflict arises between
persons who are equally entitled to a name – a situation that arises
often, given the global nature of the internet.8
There are various domain name disputes that have come up for
consideration of courts around the world. e.g., Cybersquatting
(Registration of a well-known trademark as a domain name in the hope
of selling it at a later date, Competitor Disputes (Registration of
domain names that contain company name or trademarks of one‘s
competitors), Palming-off Disputes (Registration of domain names
with intent to palm-off the fame and goodwill of someone else‘s
trademark), Parody Disputes (Registration of a domain name that
resembles a company‘s name or trademark and then using it in
connection with a website that includes commentary or makes a
political or satirical statement about it), etc.
III. The Cybersquatting Problem
Cybersquatting is a particular type of domain name dispute which
occurs when someone registers a domain name which is associated
with a famous firm with the sole intention of selling it on to them at a
7
Nandan Kamath, Law Relating to Computers, Internet and E-Commerce – A Guide
to Cyberlaws 167 (Universal Law Publishing Co., Delhi, 4th edn., 2009).
8
Id. at 169.
82
[Vol. 1 : 1
higher price.9 Cybersquatting is the practice of registering a trademark
as a domain name with the intent of profiting from it by selling it,
usually to the trademark owner. As long as the cybersquatter owns the
domain name, the trademark owner cannot register its own trademark
as a domain name. In this sense, the cybersquatter breaches the
fundamental rights of the trademark owner to use its trademark.
However, it is important to note that there is nothing wrong with the
practice of reserving a domain name.
Frequently, cybersquatters register words or phrases they hope will
some day be sought after by new companies or new business divisions.
A trademark is not infringed by a domain name unless the trademark
existed at the time of domain name registration. This kind of
cybersquatting is speculative and legitimate. John D. Mercer also
identifies "innocent" cybersquatting, whereby the registrant does
infringe a trademark "based on some unrelated interest in the word
itself, without intending harm to a trademark owner" and "concurrent"
cybersquatting, whereby the registrant uses the same trademark as
another commercial entity, but not within a competing industry.10
However, the harmful kind of cybersquatting involves intentional
bad faith trafficking in domain names that are the same as, or a
dilution of, existing trademarks. Such domain name registrants are
considered "modern day extortionists."11 An illegal cybersquatter,
thus, is one who acquires a domain name for the sole purpose of
obtaining money or other advantage from the trademark owner, with
no intent or desire to use the domain name, except as an instrument
9
It can be distinguished from other associated disputes such as domain name
hijacking or typosquatting where the domain names are very similar to a famous
brand but there is a slight misspelling to attract custom to the site. Another type of
dispute is known as parody or so called sucks.com whereby a site is registered such
as microsoftsucks.com with the intention of damaging a firm‘s reputation. Also
domain name envy is where two companies may both legitimately want the same
name such as with AA.com, where alcoholics anonymous or the automobile
association would be entitled to this but it is actually American Airlines who have it.
Linked to this, reverse domain name hijacking is the practice whereby a bigger firm
tries to force a smaller firm who has legitimately registered a website to hand it over
to them.
10
John D. Mercer, "Cybersquatting: Blackmail on the Information Superhighway", 6
Boston University Journal of Science and Technology Law 11 (2000).
11
Christopher R. Perry, "Trademarks as Commodities: The 'Famous' Roadblock to
Applying Trademark Dilution Law in Cyberspace", 32 Connecticut Law Review
1127 (2000).
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ILI Law Review
83
toward this purpose. In addition to collecting ‗ransom‘, a cybersquatter
might want to register a well-known trade-mark as a domain name in
order to affect Internet traffic. For example, using a well-known
domain name might help improve search results for the registrant's
own website or might help the cybersquatter attract Internet users
initially seeking a legitimate brand to his or her site. An increasingly
popular practice among cybersquatters has been to park domain names
at websites that offer revenue programs whereby domain name holders
who redirect Internet traffic to these websites become eligible for a
referral fee. These parking websites usually contain links to other
websites on a pay-per-click basis, and both the parking service and the
registrant share in the revenue.12
The acknowledged arch-cybersquatter is Dennis Toeppen, who
registered a host of well-known trademarks as domain names
(including deltaairlines.com, neiman-marcus.com and numerous other
famous marks),13 and who has been unsuccessful in defending his
rights to them when sued by the trademark owners. Intermatic Inc. v.
Toeppen14 and Panavision International v. Toeppen15 are considered
the pivotal cybersquatting cases and have had a profound impact on
the development of cybersquatting case law, as well as on the drafting
of the Anticybersquatting Consumer Protection Act, 1999 (hereinafter
‗ACPA‘).
Panavision illustrates some of the typical issues encountered in
cybersquatting cases where trademark infringement is raised. Toeppen
registered the domain name.‘panavision.com‘ and used the website to
display pictures of the city of Pana, Illinois. He offered to sell the
domain name to Panavision for $13,000. Panavision declined and
12
"Cybersquatting Remains on the Rise with Further Risk to Trademarks from New
Registration Practices", available at:
http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html (visited on Oct.
30, 2009 at 4.30 p.m.).
13
Christopher P. Rains, "A Domain By Any Other Name: Forging International
Solutions For the Governance of Internet Domain Names", 14 Emory Int‟l. L. Rev.
355 (2000).
14
947 F. Supp. 1227 (N.D. Ill. 1996), available at:
cyber.law.harvard.edu/metaschool/fisher/domain/.../interma.htm (visited on Nov. 30,
2009 at 1.30 p.m.).
15
141 F.3d 1316 (9th Cir. 1998), available at:
www.techlawjournal.com/courts/avery/19980417.htm (visited on Nov. 30, 2009 at
1.35 p.m.).
84
[Vol. 1 : 1
brought an action under the Federal Trademark Dilution Act (FTDA).
The FTDA required the plaintiff to show that the trademark in
question is famous, that the defendant was using the mark in
commerce, that the mark became famous before the defendant started
using it, and that the "defendant's use of the mark dilutes the quality of
the mark by diminishing the capacity of the mark to identify and
distinguish goods and services."16 Toeppen argued that he was not
making commercial use of the name, as he was merely displaying
photographs on his web site. The court, however, decided that by
having offered the domain name for sale, Toeppen had shown his
intent to use the mark in commerce, which met the requirements for
use in commerce test. The court further remarked on the fact that a
domain name carried the reputation of a trademark.
In Intermatic, the court conceded that Toeppen was not using the
trademark in commerce, as he had merely registered it, but
nevertheless found infringement through dilution. Importantly, the
court in Intermatic recognized that if Toeppen were allowed to operate
the web site intermatic.com, Intermatic's "name and reputation would
be at Toeppen's mercy."
The rulings in Panavision and Intermatic affirmed that
"traditional" trademark and trademark dilution law applied in
cyberspace. It is not only the "unadulterated" trademark that can be
protected, but also any variation of it that is likely to confuse or
deceive, or in some way dilute the "distinctive quality" of the mark.
The Anticybersquatting Consumer Protection Act incorporates the
dilution and tarnishment provisions of the FTDA, but without the
FTDA's requirement for use in commerce. This significantly broadens
the concept of trademark infringement.
The threats that cybersquatters pose are significant and impact
businesses in numerous ways. First, cybersquatters interfere with
consumer behaviour. Cybersquatters have the effect of diverting the
consumer's attention away from the intended brand. Thus, in the
course of an electronic transaction, the potential consumer might either
end up making an alternative purchase with a competitor or might
forgo making a purchase altogether in frustration. Second,
16
Jeremy D. Mishkin, "Master of Your Domain - An Overview of the
Anticybersquatting Consumer Protection Act", 18 Communications Lawyer 3 (2000).
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85
cybersquatters may create ongoing battles for businesses. For some
companies, the problem may not readily go away. For example, Mattel
is often in battles against cybersquatters (amongst other types of brand
abusers) who use its "Barbie" brand in relation to pornography and
escort service websites. Third, cybersquatters cause loss of revenue.
Not only is revenue lost as a result of consumers changing their buying
behaviour, but also when the ability of a business to engage in online
transactions is compromised.
IV. The U.S. Approach
In November 1999, the United States enacted the Anticybersquatting
Consumer Protection Act, 1999 (ACPA),17 an Internet specific
supplement to existing trademark law. The drafters intended the ACPA
to fill in the gaps of trademark law in order to address the newly
developed problem of cybersquatting. They were convinced that the
uncertainty as to the application of trademark law, inconsistent judicial
decisions, and the growing phenomenon of cybersquatting needed to
be remedied.18 The Act aids the trademark holders by increasing the
penalties for cybersquatting.19
The ACPA applies to all domain names registered before, on, or
and after its date of enactment, except that damages are not available
with respect to the registration, trafficking, or use of a domain name
that occurred before the law was passed.20 However, the statutory
language seemingly permits damage awards against domain name
registrants who continue to maintain and use improper domain names
after the effective date notwithstanding that the names were registered
prior to the enactment date.
17
U.S. Congress passed the Intellectual Property and Communications Omnibus
Reform Act of 1999 on Nov. 19, 1999 as part of a consolidated appropriations
package, which was signed by the President on Nov. 29, 1999. The relevant title
within this Act is called the Anti-Cybersquatting Consumer Protection Act.
18
Zohar Efroni, ―A Barcelona.com Analysis: Toward a Better Model for
Adjudication of International Domain Name Disputes‘, 14 Fordham Intellectual
Property, Media & Entertainment Law Journal 29, 53 (2003).
19
Lee B. Burgunder, Legal Aspects of Managing Technology 442 (South West
College Publishers, Ohio, 2nd edn. 2001).
20
David W. Quinto, The Law of Internet Disputes 328 (Aspen Publishers, New
York, 2001)
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Applying the ACPA to Cybersquatting
The ACPA applies to domain name registrant or the registrant‘s
authorized licensee that registers, traffics in, or uses a domain name
identical, confusingly similar to, or dilutive of a mark with a bad faith
intent to profit form that mark.21
In order to succeed under the ACPA, the plaintiff must establish
two elements. The first element considers whether the defendant
possessed bad faith intent to profit from the use of a protected name.
The second element considers whether the defendant registered or used
a domain name that (i) is identical or confusingly similar to a
distinctive mark or famous mark or (ii) is a trademarked word or
name. The ‗identical or confusingly similar‘ terminology parallels
general trademark theory.
The Act provides a non-exclusive, nine-factor test to determine
whether a registrar has acted in ‗bad faith‘. These factors are:22
 The trademark or other intellectual property rights of the
person, if any, in the domain name
 The extent to which the domain name consists of the legal
name of the person or a name that is otherwise commonly used
to identify that person
 The person‘s prior use, if any, of the domain name in
connection with the bona fide offering of any goods or services
 The person‘s bona fide noncommercial or fair use of the mark
in a site accessible under the domain name
 The person‘s intent to divert consumers from the mark owner‘s
online location to a site accessible under the domain name that
could harm the goodwill represented by the mark, either for
commercial gain or with the intent to tarnish or disparage the
mark, by creating a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of the site
 The person‘s offer to transfer, sell, or otherwise assign the
domain name to the mark owner or any third party for financial
gain without having used, or having an intent to use, the
21
22
Ibid.
Sec. 1125(d)(1)(B) of ACPA.
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domain name in the bona fide offering of any goods or
services, or the person‘s prior conduct indicating a pattern of
such conduct
 The person‘s provision of material and misleading false contact
information when applying for the registration of the domain
name, the person‘s intentional failure to maintain accurate
contact information, or the person‘s prior conduct indicating a
pattern of such conduct
 The person‘s registration or acquisition of multiple domain
names which the person knows are identical or confusingly
similar to marks of others that are distinctive at the time of
registration of such domain names, or dilutive of famous marks
of others that are famous at the time of registration of such
domain names, without regard to the goods or services of the
parties
 The extent to which the mark incorporated in the person‘s
domain name registration is or is not distinctive and famous.
Bad faith intent will not be found if the court determines that the
person believed and had reasonable grounds to believe that the use of
the domain name was a fair use or otherwise lawful.23
In Morrison & Foerster v. Wick,24 the plaintiff was the proprietor
of the well-known and registered trade mark ‗Morrison & Foerster‘,
registered and used for legal services. The defendant, 25 a
cybersquatter, registered the domain names „morrisonfoerster.com‘
and ‗morrissonandfoester.com‘. The web pages established for these
domain names contained a few slogans as well as a few hyperlinks to
other anti-Semitic and racist domain names such as
‗letsdosomeillegalsteroids.com‘ and ‗noirishneedapply.com‘. The
plaintiff contended that the defendant was guilty of trade mark
infringement and dilution and further violated provisions of the AntiCybersquatting Consumer Protection Act. Although the court only
23
Ibid.
94 F. Supp. 2d 1125 (D. Colo. 2000), available at:
cyber.law.harvard.edu/ilaw/DomainNames/MorrisonFoerster.htm (visited on Nov.
11, 2009 at 10.30 a.m.).
25
When the proceedings were instituted against the defendant, he had already
registered the names of over 90 law firms as domain names.
24
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dealt with the provisions of the act, the court‘s conclusions equally
apply to trade mark infringement and dilution proceedings.
The court firstly held that because ampersands cannot be used in
domain names, the defendant‘s disputed domain names were virtually
identical to the plaintiff‘s trade mark name. The court proceeded to
state that prejudice was present in that the defendant harmed the
plaintiff‘s goodwill by tarnishment. The court was further of the
opinion that the defendant‘s use of the disputed domain names
constituted commercial use.
In E&J Gallo Winery v. Spider Webs Ltd.,26 the plaintiff was the
owner of the well-known and registered trade mark ‗Ernest & Julio
Gallo‘, used and registered for the sale of beverages. The defendants,27
cybersquatters, registered the domain name ‗ernestandjuliogallo.com‘.
The plaintiff contended that the defendants were guilty of trade mark
dilution. When these proceedings were instituted, the defendants had
not yet established a web site for their domain name. However, during
the trial the defendants established a web site containing a number of
articles critical of alcohol consumption. The web site also commented
on the present trial proceedings.
The court, relying on the Intermatic v. Toeppen judgment, noted:
―‗ernestandjuliogallo.com‘ is displayed on every page printed off of
the web site accessed by that domain name and on the pages printed
off the SpinTopic web site when accessed by the same name. Hence,
as in Intermatic Inc., these facts are sufficient to show the likelihood of
dilution of Gallo‘s mark ... The value of a trademark is diluted when
the domain name does not belong to the company sharing that name
because potential customers ‗will be discouraged if they cannot find its
web page by typing ―plaintiff‘s name.com‖, but instead are forced to
wade through hundreds of web sites. Moreover, if defendants were
allowed to use ‗plaintiff‘s name.com‘, plaintiff‘s name and reputation
would be at defendants‘ mercy and could be associated with an
unimaginable amount of messages on defendants‘ web page.
Defendants‘ ownership of the domain name ‗ernestandjuliogallo.com‘
26
129 F. Supp. 2d 1033 (S.D. Tex. 2001), available at:
www2.bc.edu/~herbeck/cyberlaw.gallo.htm (visited on Nov. 12, 2009 at 11.30 a.m.).
27
When the proceedings were instituted against the defendants, they had registered
approximately 2000 domain names incorporating the trade names of third parties.
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89
gives defendants exclusive control over the use of plaintiff‘s trademark
‗Ernest & Julio Gallo‘ on the Internet, effectively preventing plaintiff
from ensuring the ability of its mark to serve as a unique identifier for
its goods and services ... Defendants have effectively usurped
plaintiff‘s trademark, as plaintiff is not free to use its mark as its
domain name.‖
The case of Jack In The Box Inc. v. Jackinthebox.org28 is
instructive. The plaintiff was the owner of the registered trade mark
‗Jack in the Box‘, registered and used for fast food services. The
defendant registered the domain name ‗jackinthebox.org‘ and
‗jackinthebox.net‘, but created no web sites for these domain names.
The question arose whether the defendant was using these domain
names in commerce, for the purpose of trade mark infringement. The
Court, after holding that the domain name in question would lead to
confusion, mistake or deception,29 answered this question in the
affirmative:
“The act of registration was in connection with the sale of the right
to use the domain name, arguably either a good or service. This sale
(from the domain name registrar to the unknown registrants)
constituted „use in commerce.‟ A domain name registrant need not
actually develop a working website for the illegal use of the mark to
constitute commercial use. The act of registering a domain name is a
commercial act because it involves a sale between the registrant and
the registrar. The infringing domain name is used in this commercial
act because it itself becomes the good or service that is sold. It thus
meets the definition of „use in commerce‟ under 15 U.S.C. § 1127, 15
U.S.C. § 1114(l)(a), and 15 U.S.C. § 1125.”30
However, that an Internet domain name resembles a famous
trademark does not, in and of itself, establish bad faith for purposes of
the Act. e.g., In Interstellar Starship Services Ltd. v. Epix Inc.,31 a
28
143 F Supp. 3d 590 (E.D. Va. 2001), available at:
http://www.finnegan.com/JackInTheBoxIncvjackintheboxorg (visited on Nov. 15,
2009 at 3.20 p.m.).
29
Id at 592.
30
Ibid.
31
304 F. 3d 936 (9th Cir. 2002), available at:
cyber.law.harvard.edu/property00/domain/Interstellar.html (visited on Nov. 15, 2009
at 3.30 p.m.).
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computer enthusiast did not have ―bad faith intent‖ to profit from
―Epix‖ trademark when he obtained ―epix.com‖ domain name, for
purpose of claim under ACPA, even though enthusiast offered to sell
domain name to trademark holder. The offer was in context of
settlement negotiations and offer was in context of investment that
enthusiast had already invested in website‘s non-infringing content,
offer was made by enthusiast‘s attorney, enthusiast performed web
search on ‗Epix‘ before registering ‗epix.com‘ and did not find any
such site, and enthusiast adopted domain name as descriptive term to
connote electronic pictures.
In rem Actions
An innovative feature of the ACPA is that it enables in rem
jurisdiction in domain name disputes - this means that the trademark
owner does not have to sue the domain name owner personally, but
can take action against the domain name itself.32 This provision
recognizes that cybersquatters frequently give out false contact
information, presumably in anticipation of possible law suits.
Normally, in U.S. law, a person who cannot be located cannot be sued.
And since domain name registrars are not liable for registering domain
names that infringe trademarks33 the fact that the registrant cannot be
located would be prejudicial to the rights of the trademark owner to
claim infringement.
The ACPA provides that a mark owner may bring an in rem action
against a domain name in the judicial district in which the domain
name registrar, domain name authority that registered or assigned the
domain name is located, if the domain name violates any right of the
owner of a mark registered in the Patent and Trademark Office or
protected under Sec. 43(a) or (c) of the Lanham Act, 1946.34
Alternatively, the ACPA provides that an in rem action may be
32
S. 1125 (d) (2)(A) of ACPA states: "The owner of a mark may file an in rem civil
action against a domain name in the judicial district in which the domain name
registrar, domain name registry, or other domain name authority that registered or
assigned the domain name is located".
33
Lockheed Martin Corp v. Network Solutions Inc., 985 F. Supp. 949 (C.D. Cal.
1997).
34
S. 1125(a) of ACPA.
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91
brought where documents sufficient to establish control and authority
regarding the disposition of the registration and use of the domain
name are deposited with the court.35 This suggest that an in rem action
could be brought anywhere based on the declaration that a registrant
must provide after receiving a file-stamped copy of a complaint
involving a domain name.36 The declaration purports to deposit control
over the domain name with the court and can be filed by either party.
Thus, to take advantage of the in rem provision the trademark
owner must take steps to satisfy the courts that the registrant cannot be
found. For straightforward cybersquatting offences the in rem
provision is useful.
V. The Uniform Dispute Resolution Policy (UDRP) Approach
Like the Courts, the registering authorities have had to react to
cybersquatting and have been extremely pro-active in terms of
implementing measures aimed to counteract it, partly maybe in their
attempts to avoid liability themselves.37 The Internet Corporation for
Assigned Names and Numbers (ICANN), the body the U.S.
government tasked with governing the Internet domain name system,
adopted the Uniform Dispute Resolution Policy (UDRP) 38 on August
26, 1999, and was implemented on October 24, 1999. The UDRP is
designed to solve disputes between a trademark owner and a domain
name registrant. These disputes arise when the registrant has registered
a domain name identical or confusingly similar to the trademark, the
registrant has no rights or legitimate interests in the name, and the
registrant has registered and used the domain name in bad faith.39 The
UDRP does not deal with conflicts between two trademark holders or
between a trademark holder and a registrant with rights or legitimate
interests. In particular, the UDRP does not apply if the registrant has
35
S. 1125(d)(2)(C) of ACPA.
37
Mairead Moore, ―Cybersquatting: Prevention Better Than Cure?‖, 17 International
Journal of Law and Information Technology 220,226 (2008).
38
The full text of the UDRP is available at:
http://www.icann.org/en/dndr/udrp/policy.htm (visited on Nov. 11, 2009 at 2.30
p.m.).
39
Para. 4(a) of UDRP.
36
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been known by the name, has used it in connection with a bona fide
offering of goods or services, or has used it for a legitimate noncommercial purpose.40
The UDRP proceedings are conducted by the ICANN approved
service providers. There are presently four approved dispute resolution
service providers that are accepting complaints.41 Each provider
follows the UDRP as well as its own supplemental rules. These are
World Intellectual Property Organization (WIPO), 42 National
Arbitration Forum (NAF),43 Asian Domain Name Dispute Resolution
Centre (ADNCRC)44 and Czech Arbitration Court (CAC).45
The UDRP has proven successful in providing a low-cost
alternative means of resolving disputes involving the bad faith
registration of trademarks or variations thereof as Internet domain
names.46 It was drafted narrowly for the purpose of combating the
Internet phenomenon known as cybersquatting. The effect of the
policy is that the status of the dispute resolution procedure is made
compulsory on the premise that it is incorporated into the contract at
the registration stage. This means that in the case of a dispute while the
applicant is not bound, the defendant is bound to acknowledge the
procedure and submit to it as part of the contract they sign in
registering the domain.
Any aggrieved person may initiate the UDRP procedure by
asserting that the following three criteria are satisfied in relation to the
disputed domain: 47
 The domain name in question is identical or confusingly similar
to a trademark or service mark in which the applicant has
rights;48 and
40
Para. 4(c) of UDRP.
The list of present and former approved providers for UDRP is available at
http://www.icann.org/en/dndr/udrp/approved-providers.htm (visited on Nov. 11,
2009 at 2.45 p.m.).
42
Approved on Dec. 01, 1999.
43
Approved on Dec. 23, 1999.
44
Approved on Feb. 28, 2002.
45
Approved on Jan. 23, 2008.
46
Nicholas Smith and Erik Wilbers, ―The UDRP: Design Elements of an Effective
ADR Mechanism‖, 15 The American Review of International Arbitration 215 (2004).
47
Supra note 40.
48
A complainant may show trademark rights through formal registration or through
use, in other words, common law rights.
41
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93

The domain holder has no rights or legitimate interests in the
domain;49 and
 The domain has been registered and is being used in bad
faith.50
This is also known as the 'cybersquatting test'. Although the policy
requires proof of all these three elements, in practice, the complainant
will establish trademark or common law rights in the domain name,
and generally, that the registrant operated in bad faith.51 The registrant
may, however, have the burden of showing legitimate interests in the
domain name, and of establishing good faith. UDRP considers a web
site used for the purposes of determining whether a cybersquatter has
infringed on the domain name, even if the name was registered, but
never developed into a functioning web site.
It is the second and third elements that distinguish the UDRP from
the trademark law, and therefore these are the most important aspects
of the Policy. The Policy includes a non-exhaustive list of factors
indicative of each of the existence of a legitimate interest and the
presence of bad faith. It is noteworthy to refer to paragraph 4(b) of the
UDRP, which addresses circumstances which connote bad faith:
(i) The domain name has been acquired principally for the purpose of
selling it; or
(ii) The registration is designed to prevent a trademark holder from
using it in a domain name; or
(iii) The registration is designed to disrupt the business of a competitor;
or
49
A registrant may demonstrate this in one of three ways. First, the registrant, before
notice of the dispute can use the domain name "in connection with a bona fide
offering of goods or services." Alternatively, registrants can establish they have been
"commonly known by the domain name," even if the registrant did not acquire
trademark or service mark rights. Finally, registrants can fulfill this element by
making "a legitimate non-commercial or fair use of the domain name, without intent
for commercial gain to misleadingly divert consumers or to tarnish" the mark.
50
There are several ways for the complainant to demonstrate bad faith. e.g., if the
web site is used for the purpose of selling, rendering, or transferring goods; if the
registrant is preventing a mark owner from using the mark in a domain name; if the
registrant intended to disrupt a competitor's business or if the registrant is creating
confusion for commercial gain, etc.
51
Leah Phillips Falzone, ―Playing the Hollywood Name Game in Cybercourt: The
Battle Over Domain Names in the Age of Celebrity-Squatting‖, 21 Loyola of Los
Angeles Entertainment Law Review 289, 304 (2001).
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(iv) The use of the domain name is intended to confuse the public or
divert users away from the trademark holder‘s web site.
Thus, in procedural terms, in order to initiate proceedings, the
burden is on the complainant to demonstrate in their application for
proceedings that certain requirements in the Policy are met. To
demonstrate these requirements are met, it appears that the threshold is
set at a low level, with practices showing a track record of purchasing
followed by offering domains for sale, clearly establishing the bad
faith element.
In terms of remedies available, Section 4(i) of the UDRP only
allows the complainant to apply for cancellation or transfer of the
domain as the UDRP doesn't have provision for damages. Where the
complainant wins, the transfer of the domain name will take place 10
days after the decision is issued unless the panel is informed by the
defendant that they are initiating court proceedings on the matter.
Some Important Decisions under UDRP
World Wrestling Federation Entertainment Inc. v. Michael Bosman:52
This was the first case decided under the UDRP by WIPO. The
proceedings were initiated on Dec. 09, 1999. The respondent had
registered the domain anme ‗worldwrestlingfederation.com‘ for a term
of two years from Oct. 7, 1999. The complainant provided evidence of
its service mark and trademark ‗World Wrestling Federation‘.
The respondent had registered the domain name and within three
days had offered the same for sale. The complainant contended that the
respondent had registered as a domain name a mark which is identical
to the service mark and trademark registered and used by the
complainant and that the respondent had no rights or legitimate
interests in respect of the domain name at issue, and that the
respondent had registered and was using the domain name in bad faith.
the respondent did not contest the allegations of the complainant.
It was found that because respondent offered to sell the domain
name to the complainant for valuable consideration in excess of any
52
WIPO case no. D99-0001, decided on Jan. 14, 2000. Complete text of the decision
available
at:
http://www.wipo.int/amc/en/domains/decisions/html/1999/d19990001.html (visited on Nov. 12, 2009 at 12.30 p.m.).
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out of pocket costs directly related to the domain name, responded
used the domain name in bad faith as required under para. 4(b)(i) of
the UDRP of the UDRP. Therefore, the Panel required that the
registration of the domain name ‗‗worldwrestlingfederation.com‘ be
transferred to the complainant.
Backstreet Productions Inc. v. John Zuccarini:53
In this case, the domain names in dispute were
‗backstreeboys.com‘, ‗backsreetboys.com‘, ‗backstreetboyspics.com‘,
‗backstreetboyspictures.com‘,
‗bakstreetboys.com‘,
‗backstretboys.com‘,
‗bacstreetboys.com‘,
‗backtreetboys.com‘,
‗backstreetsboys.com‘,
‗backsteetboys.com‘,
and
‗backstreetboyz.com‘. The Backstreet Boys are a well-known pop
singers band. Over the years, they have licensed a wide range of
products bearing their trademark, including posters, watches,
backpacks, musical products, live concert photos, etc., which are
projected to result in over twenty million dollars in revenue. They
operate a website at ‗backstreetboys.com‘. The respondent was never
licensed by the complainant to use the ‗Backstreet boys‘ trademark.
He did not offer any goods or services through the websites he
established with the above-mentioned domain names.
The panel found that the domain names were virtually identical
and confusingly similar to the trademark, respondent‘s use of the
domain names did not give him a legitimate interest in the domain
names, and respondent did register and use the domain names at issue
in bad faith. After concluding that all the requirements of para 4(a) of
the UDRP have been fulfilled, the panel, pursuant to para. 4(i) of the
UDRP, held that the registration of the domain names at issues be
Advantages of UDRP
The UDRP, as operated by WIPO and other Approved Providers, is
very popular. The procedure is quicker and cheaper than normal
53
WIPO case no. D2001-0654, decided on Aug. 24, 2001. Complete text of the
decision
available
at:
http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-0654.html.html
(visited on Nov. 12, 2009 at 12.50 p.m.).
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[Vol. 1 : 1
litigation. The jurisdiction is international in nature.54 In the traditional
court system, it is difficult to gain jurisdiction over a party in another
country. For example, under the ACPA, a complainant must file in a
court having jurisdiction where the registrant or registry is located.
UDRP alternatively, is international.
Unlike courts of law, some panels are comprised of experts in
"international trademark law, electronic commerce, and Internetrelated issues." While this does not guarantee success, one can expect
heightened familiarity with intellectual property principles and more
consistent decisions from the panels than from courts spanning the
globe.
As one country's trademark laws may not be enforceable in another
country, international complainants may encounter problems enforcing
their own country's laws in traditional courts However, under the
UDRP, any country submitting to the convention must enforce the
decision under UDRP regardless of its particular laws. Furthermore,
complainants from countries other than the United States will benefit
from this procedure. Canada, for example, does not have
cybersquatting laws.
Overall, by providing a quick and relatively inexpensive means to
resolve clear-cut cases of cybersquatting, the UDRP serves a useful
function. The UDRP is a unique creation, able to operate as a
successful international dispute resolution system despite the
challenges of distance, jurisdiction, and a rapidly changing business
environment.55 It has achieved this through a combination of design
elements that encourages efficiency and effectiveness while
maintaining the fairness essential to the credibility and enforceability
of any dispute resolution system.56
VI. The Indian Approach
In India, there is no legislation which explicitly refers to dispute
resolution in connection with cybersquatting or other domain name
54
David Kitchen, David Llewelyn, et. al. (eds.), Kerly‟s Law of Trade Marks and
Trade Names 733 (Sweet & Maxwell, London, 14 th edn., 2005).
55
Jeffrey M. Samuels and Linda B. Samuels, ―Internet Domain Names: The Uniform
Dispute Resolution Policy‖, 40 American Business Law Journal 885 (2003) at 903.
56
Ibid.
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ILI Law Review
97
disputes.57 The Trade Marks Act, 1999 sought to be used for
protecting use of trademarks in domain names is not extra-territorial,
therefore, it does not allow for adequate protection of domain names.
The Supreme Court has taken the view that domain names are to be
legally protected to the extent possible under the laws relating passing
off. In India, this law was evolved by judges and all the High Courts
were of unanimous opinion, which has been culled out and endorsed
by the Supreme Court. A look at the observations of courts as to
various facets of the disputes involving domain names shall be useful.
Some Important Decisions of the Indian High Courts regarding
Cybersquatting
Yahoo! Inc. v. Akash Arora & Anr.:58
In this case, a single judge of the Delhi High Court granted relief
on Yahoo! Inc.‘s petition seeking injunctive relief against the
defendants who were attempting to use the domain name
‗yahooindia.com‘ for Internet related services.
Yahoo! Inc., which was the owner of the trademark ‗Yahoo!‘ as
well as the domain name ‗yahoo.com‘, contended that, by adopting the
deceptively similar domain name ‗yahooindia.com‘, the defendants
had verbatim copied the format, contents, layout, colour scheme and
source code of the plaintiff‘s prior created Regional Section on India at
the plaintiff‘s website. The plaintiff had been using regional names
after ‗yahoo‘ like ‗yahoo.ca‘ for Canada. Hence, ‗yahooindia.com‘
could be perceived as being another one in the series of ‗yahoo‘ sites.
The Court rejected the argument of the defendants that the
provisions of the Indian Trademark Act would not be attracted to the
use of a domain trade name or domain name on the Internet. It was
held that although service marks are not recognized in India, services
rendered are to be recognized for actions of passing off. Therefore, the
decision of the court treated the matter as one of ‗passing off‘. Relying
on the doctrine of passing off, combined with the analysis of the
working of the Internet, the court concluded that even though the word
57
Ashwani K. Bansal, Law of Trademarks in India 642 (Centre for Law, Intellectual
Property & Trade, New Delhi, 2nd edn., 2006).
58
(1999) 19 PTC 201 (Del).
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‗yahoo‘ was a dictionary word, it has achieved distinctiveness and is
associated with the plaintiff company and hence is entitled to
maximum protection. As a result, the Court granted an injunction
restraining the defendants from dealing in service or goods on the
Internet or otherwise under the domain name ‗yahooindia.com‘ or any
other domain name that is identical to or deceptively similar to the
plaintiff‘s trademark ‗yahoo‘.
Rediff Communication Ltd. v. Cyberbooth and Anr.:59
The plaintiff in this case, the owner of the well-known portal and
domain name ‗rediff.com‘, filed for injunction against the defendant,
the registrant of the domain name ‗radiff.com‘, claiming that such
domain name was deceptively similar to theirs. the plaintiff alleged
that the defendants had adopted the word ‗radiff‘ as part of their
trading style deliberately with a view to pass of their business services
as that of the plaintiffs. The petitioner also contended that this was
deliberately done by the Cybertooth to induce members of the public
into believing that Cybertooth is associated with Rediffusion group,
and thereby to illegally trade upon the reputation of the plaintiff.
The court established that ‗rediff‘ was a coined name and at the
same time the contention of the defendants that the word ‗radiff‘ was
coined by taking the first three letters of the word ‗radical‘, the first
letter of the word ‗information‘, the first letter of the word ‗future‘ and
the first letter of the word ‗free‘, as making no sense. It held that there
is every possibility of the internet user getting confused and deceived
in believing that both domain names belong to one common source
and connection although the two belong to two different persons. The
court was satisfied that the defendants had adopted the domain name
‗radiff‘ with the intention to trade on the plaintiff‘s reputation and
accordingly the court prohibited the defendant from using the same
domain name.
Acqua Minerals Ltd. v. Parmod Borse:60
In this case, the plaintiff, Acqua Minerals Ltd., had sought a
decree for permanent injunction restraining the defendants from using
59
60
AIR 2000 Bom 27.
(2001) 21 PTC 619 (Del).
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the mark ‗bisleri‘ and/or ‗bisleri.com; as part of their domain name or
in any other manner whatsoever for any products, goods or services
which would result in passing off, infringement or copyright and
directing them to transfer the domain name ‗bisleri.com‘ to the
plaintiff.
The court held that it is obvious and self-axiomatic that the
domain name ‗bisleri.com‘ was used by the defendants with mala fide
and dishonest intention and as a blocking or squatting tactics. It was
found that they were using the domain name in order to trade in it and
to pressurize the plaintiff to part with huge sums of money for the
same. The act of the defendant was held as not only constituting the
infringement of the plaintiff‘s right but it also constitutes passing off
act as it is likely to result in the dilution of the trade mark ‗bisleri‘ as
the plaintiff had no control over the use of the said domain name
inspite of the fact that the trademark ‗bisleri‘ is the exclusive trade
mark of the plaintiff.
Pen Books Pvt. Ltd. v. Padmaraj:61
The court in this case said that absence of registration of trade
mark would not stand in the way of a claim for passing off in respect
of ‗Penbooks‘. Though the two words ‗pen‘ and ‗books‘ are generic in
nature, when combined as ‗Penbooks‘, they get an identity and
distinctiveness attached to plaintiff‘s establishment for years.
The High Court found a prima facie and balance of convenience in
favour of the plaintiff and held that injunction is rightly granted by
trial court, but the condition for deposit of a sum was held to be
unwarranted and was deleted. Plaintiff were engaged in printing and
publishing industry under the trade name ‗Penbooks‘ since 1997 and
getting its website ‗penbooks.com‘ registered on the internet. The
defendant registering the domain names ‗penbooks.com‘, in 1999 and
attempting to launch a website but not started any publication in the
said name, amounted- to ‗cyber squatting‘.
Supreme Court decision in Satyam Infoway Ltd. v. Siffynet (P)
Ltd.62
61
62
(2004) 29 PTC 37 (Ker).
(2004) 6 SCC 145.
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The Supreme Court of India has noted the proliferation of disputes
resulting in litigation before different High Courts.63The case of
Satyam Infoway Ltd. v. Siffynet (P) Ltd.64 is the first one from the
Court to deal with the legal protection of domain names and has given
seal to the law laid down by the various High Courts that the domain
names are entitled to legal protection equal to that of a trademark.
The principle question raised in this case was whether internet
domain names are subject to legal norms applicable to other
intellectual properties such as trademarks.
The appellant which was incorporated in 1995 registered several
domain names like ‗www.sifynet.com‘, ‗www.sifymall.com‘,
‗www.sifyrealestate.com‘, etc. in June 1999 with the internationally
recognized Registrars, viz., the ICANN and the WIPO. The word
'Sify‘ is a coined word which the appellant claims to have invented by
using elements of its corporate name, Satyam Infoway. The
Respondent, on the other hand, started carrying on business of Internet
marketing under the domain names ‗www.siffynet.net‘ and
‗www.siffynet.com‘ from June 2001.
After reiterating the principles of passing off, the Court observed
that:65
―The use of the same or similar domain name may lead to a
diversion of users which could result from such users mistakenly
accessing one domain name instead of another. This may occur in ecommerce with its rapid progress and instant (and theoretically
limitless) accessibility to users and potential customers and
particularly so in areas of specific overlap. Ordinary consumers/users
seeking to locate the functions available under one domain name may
be confused if they accidentally arrived at a different but similar
website which offers no such services. Such users could well conclude
that the first domain name owner had misrepresented its goods and
services through its promotional activities and the first domain owner
would thereby lose their custom. It is apparent therefore that a domain
name may have all the characteristics of a trade mark and could found
an action for passing off.‖
63
For the list of cases, see supra note 57 at 645.
Supra note 62.
65
Id. at 151.
64
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The Court further held that ―a domain name is accessible by all
internet users and the need to maintain an exclusive symbol for such
access is crucial… Therefore a deceptively similar domain name may
not only lead to a confusion of the source but the receipt of unsought
for services.‖ The court observed that ―It may be difficult for the
appellant to prove actual loss having regard to the nature of the service
and the means of access but the possibility of loss in the form of
diverted customers is more than reasonably probable.‖
Commenting on the issue of passing off, the court observed that ―it
is an action not only to preserve the reputation of the plaintiff but also
to safeguard the public.‖ The court held that ―the appellant is the prior
user and has the right to debar the respondent from eating into the
goodwill that it may have built up in connection with the name.‖
In view of the decisions of the various High Courts, it was held
that the domain names are entitled to legal protection equal to that of a
trademark. The Court held that the appellant had been able to establish
the goodwill and reputation claimed by it in connection with the trade
name ‗Sify‘. Apart from the close visual similarity between ‗Sify‘ and
‗Siffy‘, the Court held that there was a phonetic similarity between the
two names as well. The addition of ‗net‘ to ‗Siffy‘ did not detract this
similarity.
The Court concluded that in view of finding of prima facie
dishonest adoption of the appellant‘s trade name by the respondent, the
investments made b y the appellant in connection with the trade name,
and the public association of trade name ‗Sify‘ with the appellant, the
appellant was entitled to the relief it claimed.
Indian Domain Name Dispute Resolution Policy
‗.in‘ is India‘s Top Level Domain (TLD) on internet. INRegistry is
the official .IN registry. It was appointed by the government of India,
and is operated under the authority of NIXI, the National Internet
eXchange of India. The Government decided to revamp the
administration of the .IN registry in late 2004. INRegistry has assumed
responsibility for the registry from the previous registry authority, The
National Centre for Software Technology (NCST) and its Centre for
Development of Advanced Computing (C-DAC).
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The registry has published the .IN Dispute Resolution Policy
(INDRP). It has been formulated in line with internationally accepted
guidelines, and with the relevant provisions of the Indian IT Act 2000.
There are two documents that all parties in a dispute should read
carefully:
1. The .IN Domain Name Dispute Resolution Policy (INDRP):66
This document explains what types of disputes can be brought,
and the criteria that will be considered by the arbitrators.
2. The INDRP Rules of Procedure:67 These Rules describe how to
file a complaint, how to respond to a complaint, the fees,
communications, and the other procedures that will be used.
In Rediff.com India Limited v. Abhishek Verma,68 the respondent
had registered the trademark ‗rediff.in‘. the complainant contended
that the domain name was identical or confusingly similar to its
trademark ‗rediff‘ and controlled domain names ‗rediff.com‘,
‗rediff.co.in‘ and ‗rediffindia.com‘. The expert found that the
respondent, had registered domain name before the Complainant,
forselling, renting or otherwise transferring the same for monetary
gains over and above documented registration expenses. Thus, labeling
this case as that of cybersquatting, it was held that the domain name be
This case is an example of how the cybersquatting cases relating to
‗.in‘ domain names are decided under the INDRP.
VII. Suggestions for Reforms in the Indian Law Regarding
Cybersquatting
The disputes between trademarks and domain names present unusual
66
Full text available at: http://www.inregistry.in/policies/dispute_resolution/indrp
67
Full text available at:
http://www.inregistry.in/policies/dispute_resolution/indrp_rules (visited on Nov. 09,
2009 at 5.45 p.m.).
68
Decision available at:
http://www.inregistry.in/policies/dispute_resolution/dispute_decisions/rediff.pdf
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features that are currently stretching the capacity of Indian judiciary to
its limits. In certain cases, the global dimensions of domain name
disputes have made it difficult for Indian courts to come up with
comprehensive solutions to combat the cybersquatting menace.
Some of the suggest reforms in the India law to tackle the problem of
cybersquatting are:
Need for a new legislation in India in lines with ACPA and UDRP
There is no legislation in India which explicitly refers to dispute
resolution in connection with domain names. The existing laws
concerning trademark infringement do not adequately protect
trademark holders against cybersquatters. The Indian courts have been
relying on the Trade Marks Act, 1999 (before 1999 on Trade and
Merchandise Marks Act, 1958) and the Information Technology Act,
2000 to deal with the growing problem of cybersquatting. But, both
these legislations fall short in providing an effective protection to
domain names in India.
The trademarks law is not amply outfitted to deal with the whole
range of disputes constantly emerging with respect to the misuse and
abuse of domain names by cybersquatters. Resorting to trademark law
is a time-consuming method and is not very feasible in a market as
innovative as the Internet.69
The Information Technology Act, 2000 regulates to a large extent
cyber crimes and electronic signatures, but it does not cover all aspects
of information technology and it leaves an important area - Intellectual
Property Rights (IPRs), specifically in respect of Internet-related
activities. The Act also does not contain any provisions with regard to
cybersquatting, which is growing in prevalence by the day as has been
discussed in the aforementioned cases.
In many situations, the Indian courts have to seek guidance from
English and American laws and decisions, which really makes it
pertinent to make a new legislation of its own, just like ACPA in the
69
Adam Silberlight, ―www.how to be a master of your domain.com: A Look at the
Assignment of Internet Domain Names under Federal Trademark Laws, Federal
Case Law and Beyond‖, 10 Albany Law Journal of Science & Technology 278
(2000).
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US which has resulted in significantly controlling cybersquatting
there.
It has become important for India to legislate a law like ACPA of
US, and which necessarily conforms to the international standards laid
down in the UDRP.
Setting up of an independent adjudicatory body dealing with
domain name disputes in India
There is a need for setting up an independent adjudicatory authority
that shall be able to decide cases relating to domain name disputes,
especially cybersquatting in India. The setting up such bodies has
proved effective in many countries like US (National Arbitration
Forum) and Czech Republic (Czech Arbitration Court).
Setting up such an independent judicial body to tackle the domain
name disputes, especially cybersquatting, shall prove less time
consuming, more expedient and more effective, as the parties will not
have to wait to get onto a docket, then for a trial, then for an outcome.
Making INDRP more effective
The INDRP which deals with ‗.in‘ domain name disputes needs to be
further strengthened and given the effect of a law. The policy, since
not being in the shape of a law, is not mandatory to be followed. The
inconsistency between the INDRP and the UDRP needs to be removed
The UDRP and the INDRP differ on the domain names in many
places. Thus to make INDRP more effective, it has to be made more
compliant to the UDRP, and be given the shape of a law.
VIII. Conclusion
The problem of cybersquatting is escalating globally and even in India.
Trademark and service mark owners need to be able to protect their
marks as domain names from others who register and use the mark in
bad faith. As a preliminary matter, the owner must first discover that
its mark is being used in an Internet address. An inexpensive way to do
this is simply to use a search engine to discover web pages using the
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mark. Making detection even easier, one domain name registrar offers
a service that will report cybersquatting or any trademark being used
in hidden or overt ways.
After analyzing various approaches relating to cybersquatting, it is
clear that two methods have developed in the form of dispute
resolution by the regulatory authorities and the formal legal or court
procedure. The majority of authorities has either implemented the
UDRP or has implemented one closely modeled on it. This is indeed a
very effective method of curbing cybersquatting, though it requires
changes with time. And then observing at how the courts have reacted,
it is clear that the picture is altogether different. While some countries
have implemented cybersquatting specific legislation, others have
reacted rather indolently by simply applying trademark laws
inappropriately.
Finally, in the light of still increasing rate of cybersquatting in
India and other countries, it is important to make a concerted effort by
registrars to address and curb it at the registration level itself. This is
indeed going to be prove beneficial in controlling cybersquatting, just
like in real world the squatters have finally given up their practice with
stringent property laws in force.
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Freedom of Religion and Anti Conversion Laws
[Vol. 1 : 1
NOTES
FREEDOM OF RELIGION AND ANTI CONVERSION LAWS
IN INDIA: AN OVERVIEW
I. Introduction
THE FIRST decade of the 21st century with all its grandeur and
technological advancements would best be remembered for the revival
of religion in politics across the globe. It has become impossible to
divorce religion from modern political structure, be it India or the
world. There never was a word, more responsible, in history, for
causing such amount of disruption in society than 'Religion'. Passion
defies logic and emotion overpowers reason, when the subject of
discourse is religion and when there is a question of conversion
involved, the complexity and peculiarity of the situation gives the
issue a dynamic character. Ours is a nation where politics is wedded to
religion. The very first war of independence, 1857, some say was
purely fought on religious grounds. One cannot forget the fact that 62
years back, two independent states were born because of this politics
of religion. The forefathers of our Constitution were well aware of
dangers of religious arsenal in politics and therefore made sufficient
safeguards to ensure that the life of nation marches ahead on a secular
edifice.
Our constitution stands on the bedrock of secularism though
nowhere in the original constitution the word ‗secularism‘ was
mentioned.1 Indian political circuit, in recent times has seen the
dirtiest forms of politico-religious quagmires. With five states of the
Indian Union2 making laws regulating religious conversions in a span
1
42nd Constitutional Amendment Act inserted the word ‗Secularism‘ to the
Preamble.
2
Tamil Nadu with The Tamil Nadu Prohibition of Forcible Conversion of Religion
Act, 2002 (repealed by Act no. 10 of 2006), Gujrat with Gujrat Freedom of Religion
Act, 2003, Rajasthan with Rajasthan Freedom of Religion Act, 2006, Himachal
Pradesh with Himachal Pradesh Freedom of Religion Act, 2006, Chhattisgarh with
The Chhattisgarh Dharma Swatantraya Adhiniyam, 1968( Chhattisgarh after the
formation of the state in 2000 adopted the Madhya Pradesh Act by virtue of power
conferred under section 79 of the M.P. Reorganization Act, 2000. The 1968 Act
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of seven years, adding to existing three state laws,3 and palpable
apprehension in the atmosphere could well be sensed. It is to be noted
here that anti conversion laws are not a new phenomenon and though
they have become more politicised and negatively publicized after the
series of new state legislations they were very much in existence even
prior to Independence.
Religious conversions have been debatable since time immemorial
but has gained grave importance in modern day context when religion
is getting more and more intrinsically mired in the lives of people in
general as well as in the policy making process of nations. Before
analyzing the constitutionality of the various anti-conversion laws
euphemistically called as ―Freedom of Religion Act‖, we shall first
look in to the scope and ambit of freedom of religion.
II. Freedom of Religion: Scope and Ambit
All across the civilized states, freedom of religion and belief is
considered to be a basic human right. Article 18 of the Universal
Declaration of Human Rights4 guarantees everyone right to freedom of
thought, conscience and religion which includes freedom to change
religion and belief. As a democratic republic, India, giving weightage
to its secular credentials, too has guaranteed all persons equally
freedom of conscience, profession, practice and propagation of
religion.5
Freedom of religion and conscience is considered as being vital to
every democratic constitution. The freedom in civilized countries
today extends not merely to holding of particular beliefs but to the
however is now amended by the Chhattisgarh Dharma Swatantraya (Sanshodhan)
Adhiniyam, 2006).
3
Orissa Freedom of Religion Act, 1967; Madhya Pradesh Dharma Swatantraya
Adhiniyam, 1968; Arunachal Pradesh Freedom of Religion Act, 1978.
4
Art. 18 of the Universal Declaration of Human Right (UDHR) declares the freedom
of religion in the following terms: ―Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief,
and freedom, either alone or in community with others and in public or private, to
manifest his religion or belief in teaching, practicing, worship and observance.‖
5
Art. 25 of the Constitution of India.
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absence of belief in religion.6 Religion and thought constitute the most
intrinsic part of man‘s nature and any interference with the free
exercise thereof would be experienced as a grave violation of an
inherent human right. The freedom to hold beliefs of one's choosing
and to change them is central to human development. It is the
individual's search for meaning and the desire to know who we are as
human beings.7
Freedom of religion, thus, features in various international
documents8 like Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights, Declaration on Elimination
Based on Religion or Belief, European Convention for the protection
of Human Rights, American Convention of Human Rights, and the
African Charter. It is pertinent to note here that pursuant to article 4(2)
of ICCPR and article 27(2) of American Convention, the guarantee of
religious freedom is non dirigible (i.e., not capable of being suspended
at any time) under any circumstances including war.
Article 25-28 of the Indian Constitution confers certain rights
relating to freedom of religion to ‗all persons‘ in India. Article 25(1)
guarantees to every person freedom of ‗conscience‘, right to ‗profess‘,
‗practice‘ and ‗propagate‘ religion.
―Conscience‖ refers to a man‘s subjective sense of right or wrong.
Freedom of conscience means that a person is free to entertain any
belief or doctrine regarded by him as conducive to his spiritual well
being. This implies that the state cannot enquire into or take notice of a
man‘s religious or moral beliefs. Freedom of conscience allows a
person to believe in a particular religious tenet of his choosing. This
freedom is quite distinct from the freedom to perform external acts in
pursuance of that faith.
6
Faizan Mustafa and Anurag Sharma, Conversion: Constitutional and Legal
Implications 7 (Kanishka Publishers, New Delhi, 2003).
7
Perspective: Cultural Liberty and Freedom of Belief, available at:
http://www.onecountry.org/e171/e17102as_ Perspective_Belief.htm (as visited on
Nov. 11, 2009 at 11.30 am).
8
Art. 18 UDHR, art. 18 International Covenant on Cultural and Political Rights
(ICCPR), art. 1 of Declaration on Elimination Based on Religion or Belief, European
Convention for the Protection of Human Rights, art. 9 of European Convention on
Human Rights (ECHR), art. 12 of American Convention on Human Rights, art. 8 of
African Charter of Human and Peoples Rights.
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Comparing article 25 with other international documents we do
realise that although religious freedom is guaranteed to an individual
as well as groups and denominations but this right is not absolute and
subject to certain limitations.
But whereas the freedom of conscience is concerned no restriction
of any kind can be imposed upon man‘s inner thoughts, moral
consciousness or his belief towards God, for the simple reason that it is
not humanly possible to do so. One cannot be forced to believe or
disbelieve. Human mind is an enigma. It is hard to read and harder to
understand. It is not possible for any individual let alone state to curb
or to put restraints on human thought and any act attempting the same
is a grave violation of inherent individual freedom.
The Humans Right Committee in its 48th session while discussing
article 189 of the ICCPR in its para 3 stated that article 18
distinguishes the freedom of thought, conscience, religion or belief
from the freedom to manifest religion or belief. It does not permit any
limitations whatsoever on the freedom of thought and conscience or on
the freedom to have or adopt a religion or belief of one's choice. These
freedoms are protected unconditionally, as is the right of everyone to
hold opinions without interference in article 19(1). In accordance with
articles 18(2) and 17; no one can be compelled to reveal his thoughts
or adherence to a religion or belief. However, reasonable restrictions
can be imposed upon the external manifestation of thought,
conscience, religion or belief.
Thus, under article 18 ICCPR, state parties to the covenant may
put such restrictions to be imposed upon the manifestation that may be
9
Art. 18 of ICCPR reads:
―1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice,
and freedom, either individually or in community with others and in public or
private, to manifest his religion or belief in worship, observance, practice and
teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty
of parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.‖
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prescribed by law and are necessary to protect ‗public safety‘, ‗order‘,
‗health‘ or ‗morals‘ or the fundamental rights and freedom of others.
Similarly, article 25 of Indian Constitution too provides for certain
limitations.10 Article 25 starts with a limiting clause ‗subject to public
order, morality and health and other provisions of this Part‘. This
implies that religious freedom guaranteed under article 25 is not
absolute and in fact, it is the weakest constitutional guarantee in the
sense that it is subject to all other fundamental rights guaranteed under
the Constitution.
It is submitted here that freedom of conscience sans any liberty to
manifest thoughts is a meaningless right which serves no purpose but
at the same time to say that because right to conscience includes right
to manifestation, freedom of conscience can be curtailed, is a facile
rationale for the right to believe (or disbelieve) is absolute, the right to
act, however, cannot be.
As far as the other part of article 25 is concerned that is right to
freely ―practice‖, ―profess‖ and ―propagate‖ religion, the right to
―profess‖ religion is necessarily a consequence to the freedom of
conscience. Whereas freedom of conscience is something internal and
limited to the individual concerned, profession of religion implies
affirmation of one‘s belief and faith publicly, by words of mouth or
other conduct, freedom of conscience allows a person to follow any
religion of his choosing; whereas the right to profess religion entitles
10
Art. 25 of the Constitution of India reads:
―Freedom of conscience and free profession, practice and propagation of
religion.—(1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law—(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious practice;(b)
providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included
in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.‖
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him publicly to state his creed if he so desires.11 The right to profess
religion necessarily implies freedom to follow any religion or belief.12
No person can be compelled to profess a particular religion or be
bound to remain a member of a particular sect. If a person so desires
he is absolutely free to change his religion, and whenever a question
would arise as to what religion he professes, it will be recognised that
he is a member of whichever new faith he has embraced.13
The right to ―practice‖ religion implies the manifestation and
practical expression of a person‘s belief. Religious practices however
cannot remain absolutely immune from interference.
In article 25 the freedom that has been the hub of all critique and
controversy is the ―freedom of propagation‖ of religion. Propagation
means to transmit or spread one‘s religion by an exposition of its
tenets.14 The Constitution has guaranteed to every person the right to
propagate his religious views for the edification of others.15 Going
through the debates of Constituent Assembly, we realise that
―propagation‖ was one of the most thoroughly debated and
controversial words that was finally included in the constitution. The
reason behind ―propagation‖ being subject to such amount of criticism
is its nexus with the term ―conversion‖.
Conversion is seen as a necessary corollary to propagation. From
the very beginning of the debates, the rights relating directly to
conversion were front and centre in the discussion of religious
freedom, namely the right to free expression or profession of any
religion.16 The fact that these rights were discussed alongside the right
to propagation seems to suggest that the framers of the constitution
were aware of connection between expression or profession, and the
possibility of conversions. Some of the members of the assembly
11
Dhirendra Kumar Srivastava, Religious Freedom in India: A Historical and
Constitutional Study 139 (Deep and Deep Publications, New Delhi, 1982).
12
Ibid.
13
Ibid.
14
Rev Stainislaus v. State of Madhya Pradesh, AIR 1978 SC 908.
15
Supra note 6.
16
The provisions relating to ‗Right to Freedom of Religion‘ were contained in the
draft articles formulated by K.M. Munshi and B.R. Ambedkar. Art. 19 of the draft
was pertaining to the freedom of conscience, and right to freely practice, profess and
propagate religion.
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[Vol. 1 : 1
strongly objected to the insertion of word ―propagation‖ in the draft17
at the same time there were supporters18 of the same.
Philosophy underlying the concept of propagation can be traced to
the general tendency found among communities craving a desire that
more people should join the family of their believers and that none of
their members should leave the family.
Given this perspective, the policy of propagation as a means to
convert is not, necessarily, based upon an ill will. ―In all good
intention, some people, who belong to a particular faith community,
may love for other humans what they love for themselves. Maybe,
because they see their religion as leading to the path of salvation and
success, they want everyone to join their faith and benefit from its
guidance. However, something is essentially wrong here. These people
fail to see the fundamental principle that concerning basic issues
related with ones own life and death; an individual should be free to
make his/her own judgment. While sincere help from outside should
always be welcome, the decision to believe in a religion, or to change
ones religion must be based upon an individual‘s own well-thought out
judgment. It is a matter of principle that in choosing ones religion,
every individual should be free of all external pressures and
temptations. In fact, it is due to this freedom that one is responsible for
what one believes.‖19
17
Mr. Tajamul Hussain, Mr. Loknath Misra, VII CAD 817 & 818.
Pandit Laxmi Kanta Maitrya from West Bengal said: ―If we are to restore our
sense of values which we have held dear, it is of utmost importance that we should
be able to propagate what we honestly feel and believe in. Propagation does not
necessarily mean seeking converts by force of arms, by swords, or by coercion. But
why should obstacle stand in the way if by exposition, illustration and persuasion
you could convey your own religious faith to others? I do not see any harm in it. And
I do feel that this would be the very essence of our fundamental right, the right to
profess and practice any particular religion. If in this country the different religious
faiths go on expounding their religious tenets and doctrines, then probably a good
deal of misconception prevailing in the minds of people about different religions
would be removed, and probably a stage would be reached when by mutual
understanding we could avoid in future all manner of conflicts that arise in the name
of religion. From that point of view I am convinced that the word ‗propagate‘ should
not be deleted.‖
19
Dr. Irfan Ahmad Khan, Freedom to Change One's Religion: Freedom of Religion
is
Meaningless
Without
Freedom
to
Change
Ones
Religion,
available
at
http://www.globalwebpost.com/farooqm/study_res/
islam/apostasy/apostasy_irfankhan.html (visited on Nov. 11, 2009 at 12.30 pm).
18
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ILI Law Review
113
The right to change religion as a right derived from the freedom of
thought
It is said that ―a person cannot choose if he doesn‘t know what choices
are open to him‖20 and this perfectly applies in cases of religion too.
However, choice of religion cannot be equated with that of a choice
between political and other kinds of opinions. Taking into
consideration reasons of individual converts for adopting and
manifesting a specific belief it may literally be a choice between
heaven and hell. Right to choose is implicit in the freedom of
conscience. As humans, we are born free with a natural right of choice;
nevertheless none is able to exercise this right freely due to various
reasons. It may be one‘s compelling surroundings, ignorance as to the
comparative tenets of the various religious faiths or lack of availability
of free and fair opportunity.21 Hardly anybody is adequately informed
as to the exercise of his rights relating to freedom of choice of religion.
Freedom of religious conscience, as it is generally understood by
article 18 of the Universal Declaration of Human Rights and by article
9 of the European Convention on Human Rights, includes the freedom
to choose, to keep, to change or to abandon a particular religion, as
well as the freedom to choose or to abandon religion or atheism in
general without any disadvantageous consequence. It does not lend
itself to any restriction.22
―The freedom of religious conscience, as understood above,
encompasses the right to persuade others by means of teaching, for
example through missionary activity, without which the right to
change religion or faith would run the danger of remaining a dead
letter.‖23 This right is not to be acted upon only in a collective manner,
for example in public or within a group of fellow believers, but also in
20
H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 4th ed., 2005).
21
Bimal Kumar Chatterjee, ―Prosletysation and Indian Constitution‖ in B.K.
Chatterjee (ed.), Law is not an Ass and Other Essays 93 (Eastern Law House, New
Delhi, 2006).
22
Dr. Atlanta Filos, The Freedom to Change and Manifest Religion or Belief and
Dominant Religion, available at: http://www.forum18.org/PDF/altana_filos.pdf
(visited on Nov. 15, 2009 at 10.30 am).
23
Ibid.
114
[Vol. 1 : 1
private and individually. ―The prohibition of proselytism, and in
particular the lack of its definition, constitutes a restriction in the
freedom to propagate one‘s religion or faith.‖24
At this point it becomes essential for us to see whether right of
persuasion is included within the right of propagation or not and if it
is so, then in case where persuasion results in change of faith could it
be termed as conversion. An attempt can be made here to make a
distinction between ―renunciation‖ and ―conversion‖. If the religion
that one acquires by virtue of being born to his parents belonging to a
particular faith, does not appeal to his sensibilities or conscience and
the person on his own volition renounce the same, can it be termed as
conversion or is it an act of mere renunciation?
What if after renunciation on being attracted towards a particular
faith one adopts the same out of one‘s own free will without being
persuaded by anyone, does it amount to conversion? Even if someone
persuades him, as a rational human being, having a basic
understanding of right and wrong, moral and immoral, the person
being so persuaded has every right not to get persuaded.
―Persuasion by itself is guilt free and therefore is not and cannot
be offensive.‖25 However, persuasion must be from free conscience to
open conscience.26 If the motive of persuasion is spiritual, for the
purpose of enlightening another and assisting him in the matter of
exercise of choice of religion, there does not appear to be anything
unlawful or immoral in that.27
―Persuasion‖, at times may be looked down upon as ―undue
influence or ―coercion‖ in cases where the person being persuaded is
thought of to be of a poor intellect.28 Persuasion and coercion are two
different things and it becomes imperative to demarcate them but
where do we draw the line. Persuading and getting persuaded are two
different things. If one has a right to persuade another, the person so
persuaded too has every right not to get persuaded. It is essentially a
matter of individual choice and conscience. Coercion, however, stands
24
Ibid.
26
Ibid.
27
Id at 105.
28
Ibid.
25
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ILI Law Review
115
altogether on a different footing and can never be justified in any
circumstance.
By virtue of article 2 of ICCPR29 the right to change religion is not
just a freedom from direct and indirect coercion the active state but it
is much more than that. It brings the state not only under an obligation
to respect the rights in the convention, but also to "ensure" them.
Therefore, it is not sufficient for the state to be passive, if the right to
change religion is not a real right in practice.
Assuming that a situation arises where a religious convert meets
strong reaction from the society or where a religious association does
not permit a member to leave, in such cases the state may be obliged to
impose measures to protect the right of such a convert. It is true that it
is not possible for a state to hinder all forms of private encroachment
of the right to change religion but there is no doubt that article 2
provides positive measures where the right is severely infringed upon.
It is also pertinent to note here that the limitation clause in para 3 of
article 18 solely refers to the right to "manifest" one's religion or
belief. It can thus be assumed that a state in no way can interfere in the
exercise of right to change religion as long as this change does not
manifest itself in any way.
29
Art. 2 of ICCPR reads:
―1. Each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized
in the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status.
2. Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such laws or other measures as may be necessary to give effect to
the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right hereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.‖
116
[Vol. 1 : 1
Mere change of religion can be said to be a latent mental
disposition, and not a manifestation until it is expressly made. In this
sense, mere change of a religion may never be interfered with by the
state. Even if the belief is considered to be a threat to the society, the
belief itself may not be intervened with, its manifestation however, can
be. The freedom of thought is essentially non-interferable. Morality
and legality are two separate issues. What is immoral may not
necessarily be illegal. Like religion, morality too is hard to define.
More than being abstract it is a very subjective term. A radical change
of religious belief might seem to conflict with the existing moral
norms of a society. How far can societal interest override interests of
individual or up to what extent individual interests are to be sacrificed
for the larger interest of the society; is a debatable issue.
III.Anti Conversion Laws
We know that every statute has to be tested on the touch stone of
Constitution and ‗secularism‘ is a basic feature of our Constitution.30
This causes one to reflect on the constitutional validity of statutes
regulating conversions. Before discussing the constitutionality of these
seven statutes, which are euphemistically called ‗Freedom of Religion
laws‘, we shall first succinctly sift some historical background. For
convenience sake I shall refer to these Acts as anti conversion laws
though it is submitted here that the general perception about these laws
as banning conversions per se is actually a misconception as all these
laws are aiming at regulating conversions and do not put a blanket ban
on religious conversions.
Prior to independence, anti conversion laws were in operation in
several princely states31 although British India had no such laws.
Reason for this distinction probably lies in the fact that the British
30
The Hon‘ble Supreme Court expounded the theory of Basic Structure in the
historic Kesavanand Case and later on in S.R. Bommai held ―Secularism‖ to be a part
of Basic structure of the Constitution.
31
The first anti conversion law was passed by the Rajgarh State in 1936 which was
followed by the Patna Freedom of Religion Act, 1942, Surguza State Apostasy Act,
1945 and the Udaipur State Anti Conversion Act, 1946.
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ILI Law Review
117
themselves professed a proselytizing religion32 and the dominantly
Hindu princely states‘ showed resistance to conversion to an alien
religion. Conversions secured by fraud, misrepresentation, coercion,
intimidation, undue influence or the like, were made liable to
punishment. Conversion of minors was not possible as children of
converts were not automatically considered to be governed by the new
faith of their parents.
In the Constituent Assembly, the question of conversion was one
of the most highly debated issues. Though there was no difference of
opinion on the merits of the case that forcible conversion should not be
or cannot be recognized by law, it was strongly felt not to make an
express provisions in the Constitution for all such conceivable things
which could well be regulated by an ordinary legislation.33
Post-independence, there were many attempts34 made to enact a
central legislation to regulate religious conversions, all to no avail.
However, at the state level there were isolated instances of efforts
made to have such legislations. Relying on the recommendations of
32
P. Puneeth, Vishnu Konoorayar K. and Furqan Ahmad, A Study of Compatibility
of Anti Conversion Laws with Right to Freedom of Religion, conducted by Indian
Law Institute, New Delhi.
33
Clause 17 read "Conversion from one religion to another brought about by
coercion or undue Influence shall not be recognised by law." The honourable Sardar
Vallabhbhai J. Patel while starting discussion on the topic said ―The committee
discussed this and there were several other suggestions made by the House and the
clause was referred back to the committee. After further consideration of this clause,
which enunciates an obvious principle, the committee came to the conclusion that it
is not necessary to include this as a fundamental right. It is illegal under the present
law and it will be illegal at any time.‖ He further said ―there is no difference of
opinion on the merits of the case that forcible conversion should not be or cannot be
recognised by law. On that principle there is no difference of opinion. The question
is only whether this clause is necessary in the list of fundamental rights. Now, if it is
an objective for the administration to act, it has a place in the second part which
consists of non-justiciable rights. If you think it is necessary, let us transfer it to the
second part of the schedule because it is admitted that in the law of the land forcible
conversion is illegal. We have even stopped forcible education and, we do not for a
moment suggest that forcible conversion of one by another from one religion to
another will be recognised. But suppose one thousand people are converted, that is
not recognised. Will you go to a court of law and ask it not to recognise it? It only
creates complications, it gives no remedy. But if you want this principle to be
enunciated as a seventh clause, coming after clause 6, in the Second Schedule, it is
unnecessary to carry on any debate; you can do so. There is no difference of opinion
on the merits of the case. But at this stage to talk of forcible conversion on merits is
absurd, because there cannot be any question about it.‖
34
First in 1954 then in 1960, and then again in 1975.
118
[Vol. 1 : 1
the Bhawani Sankar Niyogi committee, the state of Madhya Pradesh
had enacted Madhya Pradesh Dharma Swatantraya Adhiniyam, 1967.
By the time the Madhya Pradesh Act was passed, State of Orissa had
already passed a similar legislation called the Orissa Freedom of
Religion Act, 1967.
Similar legislation was then passed in Arunachal Pradesh as the
Arunachal Pradesh Freedom of Religion Act, 1978. When the state of
Chhattisgarh came into existence in the year 2000, it adopted the
Madhya Pradesh Act of 1968 by the name of Chhattisgarh Freedom of
Religion Act, 1968.35 Then came the now repealed Tamil Nadu
Prohibition of Forcible Conversion of Religion Act, 2002.36 Gujrat
followed suit in 2003 with the Gujrat Freedom of Religion Act and the
year 2006 witnessed two States adopting such legislations, Rajasthan
with the Rajasthan Dharma Swatantraya (Freedom of Religion) Act
and Himachal Pradesh with the Himachal Pradesh Freedom of
Religion Act.
Constitutionality of Anti Conversion Laws: An Analysis
Undoubtedly there is no ground justifying conversions brought about
by violence or other illegitimate means of coercion. Also, there is no
justification as regards the religious conversions for the purpose of
escaping the rigours of law or defrauding legal system.37
Forceful conversions violate the principle of freedom of
conscience and constitute one of the gravest human right violations.
On this premise, it can very well be said that the state is justified in
making law for keeping in check the conversions brought about by
illegitimate means and for the purpose of protecting freedom of
conscience. But on examining the statutes existing on the subject we
realise their impropriety as the language adopted by these legislations
35
Now Amended by the Chhatisgarh Dharma Swatantraya (Sanshodhan)
Adhiniyam, 2006.
36
Repealed by the Tamil Nadu Prohibition of Forcible Conversion of Religion
(Repeal) Act, 2006.
37
Example conversion to Islam for the purpose of solemnizing second marriage
(Sarla Mudgal v. Union of India, AIR 1995 SC 1531) or securing benefits of
reservation in higher education (Andhra Kesari College of Education and Ors. v.
State of A.P. and Ors, MANU/AP/0717/2006).
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ILI Law Review
119
goes far beyond the protection of this right and indeed, in no way
appear to be motivated by the desire to protect the freedom of
conscience.38 The terminology used by these legislations transforms
them from their purported role as protectors of constitutional rights
into violators of these very guarantees.39
Let us begin with first examining the definition of ―conversion‖
given in the statutes. ―Conversion‖ as defined40 in Orissa, Madhya
Pradesh, Chhattisgarh and Himachal Pradesh Act means ‗renouncing
one religion and adopting another.‘ Using a different phraseology, the
Gujrat Act defines ―convert‖ as meaning ‗to make one person to
renounce one religion and adopt another religion‘.41 The Rajasthan,
Arunachal Pradesh and Chhattisgarh Act are unique in the sense that
there definition of ‗conversion‘ excludes ―reconversion‖. Section 2(b)
of the Arunachal Act defines ―conversion‖ as renouncing an
indigenous faith and adopting another faith or religion. Section 2(c) of
the Act further defines ―indigenous‖ as ‗such religions, beliefs and
practices including rites, rituals, festivals, observances, performances,
abstinence, customs as have been found sanctioned, approved,
performed by the indigenous communities of Arunachal Pradesh from
the time these communities have been known‘ and further elaborates a
list of those considered indigenous.
The Rajasthan Act applies the term ‗conversion‘ only to
renunciation of one‘s own religion and adopting another. ‗Own
religion‘ is explained as the ‗religion of one‘s forefathers‘. Similarly,
the amended Chhattisgarh Act excludes ‗returning to one‘s forefathers‘
religion or his original religion from the definition of conversion.
This distinction between ‗conversion‘ and ‗reconversion‘ is the
biggest anomalies of the Acts as they clearly differentiate between
religions and infringes article 14 of the constitution. It is hard to
38
Anti-Conversion Laws: Challenges to Secularism and Fundamental Rights- South
Asia Human Rights Documentation Centre, 43(2) EPW 63-73 (2008).
39
Ibid.
40
S. 2(a) of Orissa Freedom of Religion Act, 1967, s. 2(b) of Madhya Pradesh
Dharma Swatantraya Act, 1968, s. 2(b) of Chhattisgarh Dharma Swatantraya
Adhiniyam, 1968 and s. 2(a) of the Himachal Pradesh Freedom of Religion Act,
2006.
41
S. 2(b).
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[Vol. 1 : 1
comprehend that if induced conversion is an offence then why induced
reconversion not so.
These legislations endeavour to prohibit ―forcible‖ conversions in
the following terms: ―No person shall convert or attempt to convert,
either directly or otherwise, any person from one religion to another by
use of force or by allurement or by any fraudulent means, nor shall any
person abet such conversion.‘ Orissa, Arunachal and Himachal Acts
use the word ―inducement‖ in place of ―allurement‖. The proviso to
the prohibition clause of the Himachal Act further goes on to declare
that ―any person who has been converted from one religion to another,
in contravention of the provisions of this section, shall be deemed not
to have been converted.‖
As for the definition of the term ‗force‘,42 all the legislations share
a common definition and state that ―force shall include show of force
or threat of injury or threat of divine displeasure or social
excommunication.‖
This definition of force is the most critical in nature as it is
uncertain as to how this definition will operate in practice. For
instance, if a religion teaches that non-adherents risk divine
displeasure (as is the case with all Abrahamic Religions), the act of
imparting this article of faith may constitute an act of force, under anticonversion legislations. This has problematic ramifications on the
freedom of change religion.43 The overtly broad definition of force
unjustifiably impinges on interactions between potential converts and
those seeking to bring about their conversion. The latter are rendered
unable to inform the former of what their religion teaches about nonadherents, limiting the information that can be made available to the
potential convert and thereby impinging on the meaningful exercise of
his or her freedom to change religion.44 The term ―divine displeasure‖
is used in the Indian penal Code45 as well and has been in existence for
42
S. 2(b) of Himachal and Orissa Act, s. 2(c) of Madhya Pradesh and Gujarat Act, s.
2(d) of Arunachal and Rajasthan Act.
43
Supra note 38 at 64; also see ―right to change religion derived from freedom of
thought‖ in this paper.
44
Ibid.
45
S. 508 of IPC reads:
―Act caused by inducing person to believe that he will be rendered an object of the
Divine displeasure. Whoever voluntarily causes or attempts to cause any person to
do anything which that person is not legally bound to do, or to omit to do anything
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ILI Law Review
121
more than 150 years now. Any individual or group inducing another to
do any act under a threat of divine displeasure can be prosecuted under
the Indian Penal Code. There underlies a subtle difference in the
operating scope of the term in both the cases, i.e., when used in IPC
and when used under the anti conversion laws. IPC as a general penal
statute is the law of the land providing for different types of offences.
Anti conversion laws are specifically made to achieve some purpose.
The scope of IPC is vast, that of anti conversion laws narrowed down
in terms of territorial limits but more profound in its reach and effect.
When used in such a specific sense as in the anti conversion laws there
is always room for overtly broad interpretation or misinterpretation
which might in certain situations lead to putting restrictions on the
right to free propagation of religion.
Two terms that further need critical analysis are ‗allurement‘ and
‗inducement‘.46 It is noteworthy here that the problem with the use of
the word ―inducement‖ were noted by the Orissa High Court in Yulitha
Hyde v. State of Orissa47 wherein it was held to impinge upon many
legitimate methods of proselytising by reason of its overly vague
nature and wide scope. This decision was however; subsequently
overruled by the Supreme Court in Stainislaus v Madhya Pradesh48
wherein the Court upheld the validity of the Orissa Act but the
problem of broad scope of both these terms nevertheless remains the
same.
which he is legally entitled to do, by inducing or attempting to induce that person to
believe that he or any person in whom he is interested will become or will be
rendered by some act of the offender an object of Divine displeasure if he does not
do the thing which it is the object of the offender to cause him to do, or if he does the
thing which it is the object of the offender to cause him to omit, shall be punished
with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.‖
Also See s. 171 C (b) of the Indian Penal Code, 1872.
46
‗Allurement‘ as per the Madhya Pradesh, Chhattisgarh, Gujrat, Rajasthan and the
now repealed Tamil Nadu Act ―means offer of any temptation in the form of; 1. Any
gift or gratification, either in cash or in kind; 2. Grant of any material benefit, either
monetary or otherwise.‖
‗Inducement‘ as used in the Himachal, Orissa and Arunachal Acts ―includes the offer
of any gift or gratification, either in cash or in kind and shall also include the grant of
any benefit, either pecuniary or otherwise.‖
47
AIR 1973 Ori 116.
48
(1977) 1 SCC 677.
122
[Vol. 1 : 1
The cause of concern here is that charitable acts are fundamental to
certain religions and any broad interpretation given to these two terms
may restrict the freedom of its adherents to meaningfully practice their
religion or religious beliefs. It is conceivable that the provision of
education facilities or medical care by religious denominations might
also be interpreted as ―temptation‖ intended to induce conversions.
These definitions leave much uncertainty, therefore, as to which
activities remain permissible and which are prohibited.
Another imprecise definition is that of the word ―fraudulent
means‖ Rajasthan and Gujrat Act state that ‗fraudulent means and
includes misrepresentation or any other fraudulent contrivance.
Himachal, Orissa. Madhya Pradesh, Arunachal and Chhattisgarh Acts
state: fraud shall include misrepresentation or any other fraudulent
contrivances the imprecision of this definition is apparent. For
example, if an individual was told that on converting he/she would feel
closer to God but on conversion the converted person did not feel the
expected degree of spirituality than can he claim to have been
misrepresented.49
These terms will be a headache for the law enforcement agencies
when they have to differentiate between legitimate and illegitimate
conversions.50 This in turn results in granting greater discretion to the
enforcement agencies. As the anti-conversion laws gives room to
misuse it is viewed specifically as a measure against the minorities.
Though it is humbly admitted here that vagueness of terms used in a
statute and the fear of misuse can ideally not be the reason for
declaring a statute to be unconstitutional, apprehensions against
misuse and fears of harassments create an element of suspicion in the
mind of minorities51 which is not a good sign for a secular democracy.
Penalties under the Acts
When penalty provision for an offence is harsh and stringent, it
becomes imperative to have a system of internal checks and balances.
49
Supra note 38.
Anzil Kommattu, ―Religious Conversion: Need for Legislation‖, 19 Lawyers
Collective 24 (2004).
51
Ibid.
50
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ILI Law Review
123
Looking at the penal provisions52 of the various Acts we realise that
with passing time the degree of severity of penalties has increased.
The earlier laws of Orissa, Madhya Pradesh and Arunachal Pradesh
prescribed only punishment either in form or fine or imprisonment
only. The punishment under the Tamil Nadu and Gujarat Act was
enhanced up to three years imprisonment and fifty thousand rupees. In
case of conversions of minors, dalits, women and tribals, the
punishment is increases to a maximum of 4 years and fine up to one
lakh rupees. The provision of the Rajasthan Act is the most shocking
of all the laws wherein the punishment that has been prescribed in
terms of both maximum and minimum period of imprisonment in
conjunction with the fine to be imposed is ―in addition to any other
civil or criminal liability‖. Other Acts provide punishment without
prejudice to any other civil liability. It is a well established principle
that both civil and criminal liabilities are concurrent and not alternative
but there cannot be two criminal liabilities for the same act as that
would amount to double jeopardy and thus infringe article 20(2) of the
Constitution.
In case of the Gujrat Act, ―prior permission‖ of the District
Collector53 is to be taken with respect to conversion which is a novel
feature of the act as none of the other laws mandate the same. In the
Madhya Pradesh Act ―prior intimation‖54 to the District Magistrate is
required whereas the Arunachal and Tamil Nadu Act only subsequent
intimation is contemplated.55 Requirement of taking prior permission
leaves the power of discretion in the hands of the executive to decide
if a person can change his religion or not. Given the fact that no time
frame is provided for the Collector to give his permission and the
person, an individual‘s prospects of conversion are left on the sweet
will of the executive. This undeniably is a violation of the prospective
converts right to choice of religion as embedded in the conscience
clause of article 25 of the constitution.
52
S. 4 of the Orissa, Madhya Pradesh, Chhattisgarh, Gujrat, Arunachal, Tamilnadu
and s. 5 of the Himachal Act also s. 5-A of the amended Chhatisgarh Act.
53
S. 5 of Gujrat Freedom of Religion Act, 2002.
54
S. 5 of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968.
55
S. 5 of Tamil Nadu and Arunachal Act.
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[Vol. 1 : 1
The Stainislaus Judgment
Rev. Stainislaus v. State of Madhya Pradesh56 is the key judicial
pronouncement on the validity of anti conversion laws. Stainislaus
arose in the backdrop of appeals against conflicting judgments of High
Courts of Orissa and Madhya Pradesh.
High Court of Orissa in Yulitha Hyde v. State of Orissa57 while
checking the constitutionality of the Orissa Freedom of Religion Act
observed that although the phrases ‗forces‘ and ‗fraud‘ were well
understood phrases as defined under IPC, the phrase ‗inducement‘ was
vague and capable of interfering with several legitimate prosletysing
activities protected by article 25(1) and was liable to be stuck down.58
The High Court also established the right to convert as a component of
religious freedom as guaranteed by the constitution. As regards the
competency of state legislature to enact the impugned statute, it was
held that the subject matter of the Act would fall under entry 97 of
schedule 7 and as such, the parliament alone had the power to legislate
on such subject matter. Accordingly the High Court declared the Act
as ultra vires of the Constitution.
In Rev. Stainislaus v. Madhya Pradesh,59 the validity of Madhya
Pradesh Dharma Swatantraya Adhiniyam, 1968 was challenged on
similar grounds. Contrary to the ruling of Orissa High Court in Yulitha
Hyde, the High Court of Madhya Pradesh negatived all contentions of
the petitioner.
When the matter came up before the Supreme Court in Rev.
Stainislaus v. State of Madhya Pradesh60 the honourable court highly
endorsed the ruling of the Madhya Pradesh High Court in disposing
the case and repudiating the Orissa High Court‘s understanding of
conversion as a religious activity entitled to constitutional protection,
the Supreme Court refused to read the freedom to convert within the
right to propagate one‘s religion and held that:
―What the article grants is not the right to convert another person
to one's own religion, but to transmit or spread one's religion by an
56
(1977) 1 SCC 677.
AIR 1973 Ori 116.
58
Ibid.
59
AIR 1975 MP 163.
60
(1977) 1 SCC 677.
57
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ILI Law Review
125
exposition of its tenets. It has to be remembered that article 25(1)
guarantees "freedom of conscience" to every citizen, and not merely to
the followers of one particular religion, and that, in turn, postulates
that there is not fundamental right to convert another person as one's
own religion because if a person purposely under-takes the conversion
of another person to his religion, as distinguished from his effort to
transmit or spread the tenets of his religion, that would impinge on the
"freedom of conscience" guaranteed to all the citizens of the country
alike.‖
Presumably, this judgment is an expansion of the idea that
conversion is to be for the purpose of edification only, for it attempts
to drive a wedge between propagation and conversion. One has the
right to propagate not to propagate in order to convert another. 61 The
issue, seen in this perspective is not simply about law and order but
directly linked to freedom of conscience. Intent to convert impinges on
this freedom. If freedom of conscience is to be observed in equal
measure for all, then conversion cannot be claimed as a right in this
view.
Presumably this means that since some religious communities do
not see conversion as a duty, equal treatment of all means that
conversion cannot or should not be the object of propagation62 even if
another community63 or tradition calls its adherents to propagate in
order to convert others.
Again in examining whether state government possessed
legislative competence to pass legislation restricting conversions, the
Hon‘ble Supreme Court agreed with the Madhya Pradesh High Court
that such legislations pertained to public order, as forcible conversions
could result in public disorder, the court adopted a broad interpretation
of the terms signifying a ―state of tranquillity which prevails among
61
Ronald W. Neufeldt, ―To Convert or Not to Convert: Legal and Political
Dimensions of Conversion in Independent India‖ in Robert Baird (ed.), Religion and
Law in Independent India 398 (Manohar Publication, 2nd ed., 2005).
62
Ibid.
63
As is the case with Christianity wherein the ‗catholic church‘ believes that
preaching of the Gospel is central to an individual‘s acceptance of Jesus as Saviour.
They believe that conversion is a continuous process of returning to God, that is, of
improving one‘s relations with God and with one another.
126
[Vol. 1 : 1
members of a political society as a result of internal regulations
enforced by the government‖.
IV. Conclusion
Religious thoughts and beliefs shape up human conduct in day to day
life. Right to freedom of conscience, practice, profession and
propagation of religion are fundamental to the development of
humans. In today‘s world and times when we are witnessing wars
being fought in the name of religion, issues relating to religious
freedom acquire a degree of sensitivity which a state has to respect but
at the same time for the sake of preserving peace in the society it
becomes imperative for the state to regulate certain activities of the
individual. To maintain this balance between individual freedom and
community interest is actually a challenge for any democratic
government.
When we discuss religious freedom in the backdrop of question of
conversion, it is submitted that right to change religion is inherent in
the right to freedom of conscience guaranteed under article 25 of
Indian Constitution as well as article 18 of UDHR and ICCPR. Right
to change religion encompasses within it folds the right to choice of
religion. One can exercise this right of choice only when one is aware
of the choices that are available to him/her. Propagation of religious
tenets is essential so as to enable a person to acquaint himself with the
choices that are available to him/her. Propagation, in this sense can be
said to be a right derived from freedom of conscience.
Freedom to convert from one religious identity to another valorises
individual freedom and rational choice as it judges the acceptability of
religion on certain ethical credentials.64 All individuals, at the same
time do have the right to refuse any offer of conversion and be able to
enjoy their freedom of religion free from undue interference.
By virtue of article 18(2) of the ICCPR, no person could be made
susceptible to extreme prostelysing efforts that may infringe upon the
freedom to maintain his chosen religious identity. While every person
has a right to invite others to an understanding of their faith, this right
64
Harish S. Wankhade, ―The Political Context of Religious Conversion in Orissa‖,
44(15) EPW 33-38 (2009).
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ILI Law Review
127
should not be exercised by violating rights of others and their religious
sensibilities. Even if propagation as a means to convert others is
central to a particular religion this does not imply that this right is
absolute. If an individual or a missionary has a right to convert, that
doesn‘t mean that another person is under an obligation to convert,
instead he has an equal right not to convert. Restrictions can still be
put regulating such right of conversion read under freedom of religion
as article 25(1) is the weakest constitutional guarantee. However,
when and where an individual converts out of his own free will the
state has to ensure that his new religious identity does not become the
cause for disruption in society. It is the duty of the state not only to
protect him but the entire social fabric of the society.
In a democracy, every law is a resultant of a parallelogram of
forces.65 The executive and legislature, both have to be sensitive to
these forces. It is executive‘s duty to refrain itself from acting too
hastily and the legislature has to take into consideration the interests of
people purporting to do good to the largest number of people and the
least harm to the smallest minority group of the people. The state is
under obligation to respect and protect the rights of the individual.
Religious freedom is quintessential for the complete development of
human intellect and personality. Conscience of a man shapes his life.
Unnecessary and uncalled for restraints in the exercise of a man‘s
innate freedom because of fear instilled in his mind due to the
existence of some vague terminology used in a statute is a very sad
preposition.
These legislations provide us with no guidance as to how such
terms should be constructed. This vacuum created by lack of precisely
defined terminology, however cannot be the sole criterion for striking
down the Acts as unconstitutional. The ambiguity of the definitions in
the statutes does leave a high degree of discretion to government
officials to determine what actions are prohibited and which
individuals will be targeted but for the purpose of checking
administrative discretion there is always a remedy of judicial review
though the process may be long and arduous.
65
V. P Sarthi, Interpretation of Statutes, 10 (Eastern Book Company, Lucknow, 4 th
edn, 2003).
128
[Vol. 1 : 1
In societies like India where religious passion is always
undercurrent and emotions are valued more than reason, any stray
activity offending the religious sentiments of the people can cause the
society to erupt with disastrous consequence. At times due to
prevailing circumstances it becomes essential for the state to regulate
certain religious activities of an individual and it is highly desirable
that the state does it in a manner so as to preserve individual liberty
uptil the time it is possible.
Saadiya Suleman

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129
TRIPLE TALAQ: A SOCIO-LEGAL ANALYSIS
I. Introduction
ISLAM, ONE of the greatest of world religions through the 1500 years
of existence, has been by far the most misunderstood and
misrepresented. The reason for this does not lie outside but it is only
due to sheer ignorance of its own followers. The Prophet of Islam
never thought that he was bringing a new religion, but that he was
merely trying to reintroduce the old faith in the ‗One God‘ to the
Arabs. It was basically a social reform movement brought about to
teach the savage pagan Arabs the laws of humanity and to create a
society where weak and vulnerable are treated with respect. The
Prophet of Islam was indeed a social reformer, thinking far ahead of
his time. The emancipation of women was a project dear to prophet‘s
(PBUH) heart. According to Karen Armstrong,1 ―Muhammad was one
of those rare men who truly enjoy the company of women. Some of his
male companions were astonished by his leniency towards his wives
and the way they stood up to him and answered back.‖2
Prophet of Islam disliked the practices of pagan Arabs of treating
women as goods and chattels. He looked upon those customs with
extreme disapproval and regarded their practice as calculated to
undermine the foundation of society. He brought path-breaking reform
in the laws of marriage, divorce and inheritance and gave women their
earned position. Quran gave women, rights of inheritance and divorce
centuries before western women were accorded such status.
He was disgusted by the arbitrary divorce practices prevailing in
the pagan Arabs. He set out to reform this practice and laid down
procedure to be adopted in case of divorce between the couple. He told
to his people:
―Now onwards, only twice in the whole life can a husband
pronounce a talaq and revoke it; whenever he does so for the third
1
She is a teacher at the Leo Baeck College for the Study of Judaism in London and,
in 1999; and has also received the Muslim Public Affairs Council Media Award. She
is also the author of the world-wide bestsellers.
2
Karen Armstrong, Islam: A Short History 13 (Phoenix Press, London, 1st edn.,
2000).
130
Triple Talaq: A Socio-Legal Analysis
[Vol. 1 : 1
time the marriage would be instantly dissolved, leaving no room for
remarriage between the divorced couple.‖3
This simple reform of the Prophet got corrupted in the course of
time and this pre-Islamic custom of arbitrary divorce, which was
abhorred by the prophet once again, became prevalent. In the
following paper a study has been made on the origin of this practice of
triple-talaq and its sharia basis, and its impact on the society so far.
Historical Background of Divorce
To understand the nature and concept of divorce in Islamic law, a brief
account of its historical background is necessary.4 Among all the
nations of antiquity, the power of divorce was regarded as a natural
corollary to marital obligation.
Among the pre-Islamic Arab (during the period of jahiliyat) 5 the
power of divorce possessed by the husband was unlimited and was
frequently exercised without any regard to the marital obligations.
They could divorce their wives at any time, for any reason or even
without any reason. They could give divorce and also revoke the same
as many times as they preferred. They could, moreover, if they were so
inclined, swear that they would have no intercourse with their wives,
though still living with them. They could arbitrarily accuse their wives
of adultery, dismiss them, and leave them with such notoriety as would
deter other suitors; while they themselves would go exempt from any
formal responsibility of maintenance.6 In pre-Islamic Arabia, divorce
was used as an instrument of torture.
These social and moral ills and injustices engaged the attention of
the prophet of Islam. Fully conscious of the evils flowing from
divorce, he framed the laws of marriage and divorce in order to
remove these evils.
3
Furqan Ahmad, ―Understanding the Islamic Law of Divorce‖, 43 JILI 484 (2003).
Supra note 3.
5
This is a period of ignorance among the ancient Arab before the teaching of
Prophet (PBUH).
6
Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal
Aspect 13 (Regency Publication, New Delhi, 1994).
4
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131
Concept of Marriage in Islam
Before delving into the debate of divorce under Islam, it is imperative
for us to understand the nature of marriage ordained under Islam so as
to form a better perspective of the concept of divorce.7 It has been
always said that under Islam marriage is a contract, and like any other
contract it comprises of offer acceptance and consideration, so it can
also be terminated or dissolved like a contract by the parties to the
contract at anytime. But this view is not proper.
Tahir Mahmood in his book said that the general impression that
there is no religious significance or social solemnity attached to a
Muslim marriage and that it is a mere civil contract is not true.
The Quran does not treat marriage as an ordinary contract. The
prophet described nikah as his Sunnat; and those who know the socioreligious significance of Sunnat as recognized by the Muslims can well
understand what marriage means to a follower of Islam.8
According to Ameer Ali ―Marriage‖ says the ―Ashbah‖ is an
―institution ordained for the protection of the society, and in order that
the human beings may guard themselves from foulness and
unchastity….. ―No sacrament but marriage has maintained its sanctity
since the earliest time. It is an act of ibaadat or piety for it preserves
mankind free from pollution. It does not give man any right over the
person of the wife except from mutual relationship according to the
law of nature and not contrary to it.‖9
Also the Prophet (PBUH) has described, ―He who marries
complete his half religion, it now rest upon him to complete the other
half by leading a virtuous life in consistent fear of God.‖10 Thus it is
said to be half iman.
There is indeed a specific purpose for which Muslin law regard
marriage as an agreement, a very special nature. It is meant to accord
7
Tahir Mahmood, Muslim law of India 48 (LexisNexis Butterworth, New Delhi, 3rd
edn., 2002).
9
Syed Ameer Ali, Muhammadan Law 471 (English Book Store New Delhi 4th edn,
1985).
10
Zubair A. Khan, ―Divorce in Islam: Not Easy Going‖, 14 Religious and Law
Review 109 (2005).
8
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[Vol. 1 : 1
full contractual freedom to the parties to a proposed marriage; and this
is indeed a unique feature of Islamic law.11
Islamic Perspective of Divorce
The Prophet of Islam was indeed social reformer thinking far ahead of
his time. He found arbitrary divorce-practices prevailing among the
pagans and Jewish-Christian Arabs. Disgusted he set out to reform
them.12 It was impossible, however, under the existing condition of the
society to abolish the custom entirely. The prophet has to mould the
mind of an uncultured and semi-barbarous community to a higher
development. Accordingly he allowed the exercise of power of divorce
under certain conditions. He permitted the parties to divorce the parties
at three distinct and separate time periods within which they might
endeavour to become reconciled; but should all attempt to reconcile
prove unsuccessful; then in the third period the final separation
become effective.13
The Mussalmaan law of divorce is the logical consequence of the
status of marriage. As it regards it as an ‗Aqd‘ or a contract, it confers
on both the parties to the contract the power of dissolving the tie or
relationship under certain specified conditions. The Islamic law did not
take away the customary right of the husband to divorce his wife
unilaterally, but it imposed numerous restrictions, on the exercise of
this right. A Muslim man cannot divorce his wife and take her back as
he pleases.14
Though permissible in law, divorce is not favoured in Islam as
prevents conjugal happiness and interfered with the proper up-bringing
of the children. Prophet told his people:
―Divorce is most detestable in the sight of God; abstain from it.15
He also said:
11
Supra note 6 at 14.
Tahir Mahmood ―No More Talaq, Talaq, Talaq: Juristic Restoration of True
Islamic Law of Divorce‖, 12 Islamic and Law Quarterly Review, 1 (1992).
13
Ameer Ali, ―The Spirit of Islam‖, as cited in Khalid Rashid, Muslim Law 47
(Eastern Book Company, Lucknow, 4th edn., 2004).
14
Supra note 6 at 14.
15
“Al-Talaqu indallah-i abghad al-mubahat”; This Hadith is found in many
authentic collections of tradition.
12
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133
“Divorce shakes the throne of God.”16
The permission therefore, in the Quran, though it gave a certain
countenance to the old custom, has to be read with light of lawgiver‘s
own words. When it is borne in mind how intimately law and religion
are connected in Islamic system, it will be easy to understand the
bearing of words on the institution of divorce.17
II. Divorce in Quran
It is imperative to understand the various forms through which a
marriage can be dissolved. When dissolution proceeds from the
husband it is called Talaq and when it takes place at the instance of the
wife, it is called Khula. When it is by mutual consent it is called
Mubaraa,18 and when it is by qadi through a judicial process it is
Faskh or sometime it can be Lian.
Talaq
Talaq as defined in law ―is a release from the marriage tie, either
immediately or eventually, by the use of special words.”19 It is used by
Muslim jurists to denote release of women from marital tie. A Muslim
husband under all schools of Muslim law can divorce his wife by
unilateral action and without the intervention of the court. It is not
necessary to provide for such power in the Marriage-Contract; the
husband derives this power from the law itself this power is known as
the power to pronounce talaq.
The husband though given the unilateral power to pronounce talaq
has to be very judicious in its exercise. The Quran has laid down
certain rules which have to be followed strictly. He has been given this
power with expectation that firstly he will not ordinarily exercise it
and avoid it as much possible. Secondly that if he finds it unavoidable
then he shall do it with a sense of justice (adl) and rationality. There is
16
Ibid.
18
Id. at 487.
19
Faiz Badrudin Tyabji, Muslim Law 205 (N.M. Tripathi Ltd., Bombay, 4th edn.,
1968).
17
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[Vol. 1 : 1
nothing in Islamic law which gives husband the power to divorce his
wife arbitrarily, irrationally and in unreasonable manner.
Further, it has been laid in Quran that before the procedure for
talaq is to be started the spouses should try to reconcile with each
other by appointing arbitrators, one from the side of wife and the other
from the side of husband. This has been provided under verse 4:3520 of
Holy Quran.
It has been observed by a learned commentator of Holy Quran: 21 as
―An excellent plan for setting the family disputes, without too much
publicity or mud-throwing or resort to chicaneries of the law.‖ The
Latin countries recognized this plan in their legal system. It is a pity
that Muslims do not resort to it universally, as they should. They
arbiters from each family would know idiosyncrasies of both parties
and would be able, with Allah‟s help to effect reconciliation.‖
According to Moulana Mohammed Ali, this a procedure par
excellence, which portrays Islam in its true glory. But later Muslim
jurists of ―great antiquity and high authority‖ threw to the winds this
salutary procedure.22
According to Tahir Mahmood there is a simple procedure of talaq
in Islam which is, unfortunately, misunderstood by majority of Muslim
themselves. They erroneously believe that they are allowed different
―modes‖ or ―forms‖ of talaq and also have absolute freedom of action.
He says that there are not any modes of talaq like ahsan, hasan or
bid‟at. The law of Islam says to husband:23
(i) Talaq is ―worst of all permitted things‖; better avoid it: but if you
find necessary to have recourse to talaq, then;
(a) Wait till the wife enters the period of ‗tuhr‘;24
20
An Enlightenment Commentary into the Light of the Holy Quran (The Scientific
and Religious Research Centre, Iran, 2nd edn., 1995).
21
Holy Quran English Translation of the Meanings and Commentary, 220 Ministry
of Hajj and Endowments, kingdom of Saudi Arabia as cited in S.A. Kader, Muslim
Law of Marriage and Succession 37 (Eastern Law House, Lucknow, 1998).
22
S.A.Kader, Muslim Law of Marriage and Succession, 37 (Eastern Law House,
Lucknow 1998).
23
Tahir Mahmood, The Muslim Law of India 117 (LexisNexis Butwerworth, New
Delhi, 1980).
24
Tuhr is a period when a woman is not in her menstrual period and is pure. This is
basically to assure that husband is not acting in haste. And the husband resolve to be
separate from his wife, is not a passing whim, but is a result of self determination.
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(b) During that period pronounce talaq and do not make it
irrevocable by your words;
(c) Revoke the Tale, if possible, before the expiry of the wife‘s iddat;
(d) If you do not revoke it by that time, at the expiry of wife‘s iddat
the marriage will stand dissolved;
(e) If you have exercised your power of Tale in this way, your behavior
has been ― best‖ (ahsan);
(f) Now you cannot revoke the talaq at your pleasure; but after expiry
of the wife‘s iddat you can marry the same woman with her
consent.
(ii) If you have revoked the talaq pronounced by you for the first time,
never pronounce it again. However, in case you find it necessary to
pronounce the talaq once again then,
(a) Wait till the wife enters the tuhr period;
(b)Pronounce talaq in tuhr;
(c) Do not by your words make, this second talaq irrevocable;
(d)Try to revoke this second talaq before the expiry of wife‘s iddat;
(e) If you do not revoke it then, at the expiry of wife‘s iddat the
marriage will once again stand dissolved;
(f) As before now, you cannot revoke the talaq at your pleasure, but
after the expiry of her iddat you can re-marry the same women
with her consent.
(iii) If you have succeeded in preparing yourself to revoke the talaq
(which you pronounced for a second time), never pronounce a talaq
again, but if, again, you really find it unavoidable to pronounce a
talaq, then:
(a) Wait for her being once more free from her menstrual periods;
(b)Know that if you now pronounce a talaq (for the third time) you
cannot revoke it anymore; also you will not be able even to remarry your divorced wife right away; if you so wish you will have
to pay a penalty-which, due to human nature, you will never likethe penalty of finding your wife becoming somebody else wife and
remarrying her only if and when she is lawfully free of the second
marital bond (the halala);
(c) If, knowing all this, you still find it impossible to withhold yourself,
pronounce a talaq (for the third time);
(d)The moment you do so the marriage will stand dissolved;
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[Vol. 1 : 1
(e) If you have exercised your power of talaq in this way, your
behavior is still ―good‖ (hasan).25
This is the one and only form of divorce which has been given in
the Quran. Further there is one more confusion that hasan talaq must
be given in three ―consecutive‖ or ―successive‖ tuhr. This is submitted
as wrong. The correct position is that if the husband has given talaq
once he should not pronounce the next talaq before the second tuhr but
he can give the same at any time during the subsistence of marriage
and that talaq will be counted as one. The same is the situation when
he pronounces the second talaq. Thus it should be understood that the
condition for next ―tuhr‖ for the second or the third talaq is that there
should be minimum time of one month for the husband to think and it
is not to be taken as maximum limitation.
III. Meaning and Nature of Triple-Talaq
Triple-Talaq is a form of talaq-ul-bid‟at in which, the husband may
pronounce the three formulae at one time, and it is irrelevant that
whether the wife is in state of tuhr or not. It is denoted in Arabic as
Mugallazah, means very hard-divorce which is most disapproved and
which does not conform to Talak-us-sunnat. The separation then
effects definitely after the woman has fulfilled her „iddat‟ or period of
probation.
Origin of Triple-Talaq
According to Asghar Ali Engineer, the Islamic Shariah which was
formulated more than hundred years after the death of the prophet and
had evolved under complex influences of various civilizations and
took away what was given to women by the Prophet and the Quran the
issue of triple divorce in one sitting illustrates this very well. It was
practiced during the jahiliyah period (times of ignorance) before the
advent of Islam.
The triple divorce was not allowed during the Prophet‘s lifetime,
during the first Caliph Abu Bakr‘s reign and also for more than two
years during the second Caliph Umar‘s time. Later on Umar (RA)
25
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137
permitted it on account of a peculiar situation. When the Arabs
conquered Syria, Egypt, Persia, etc.., they found out women there
much more beautiful than their own women and hence were tempted
to marry them. But those women did not know about Islam‘s abolition
of triple-talaq in one sitting, and therefore insisted that before
marrying them the men should pronounce talaq thrice to their existing
wife which they readily accepted to do (as they knew that Islam has
abolished triple-talaq and that would not be effective) and even after
marrying with the Syrian or Egyptian women they would also retain
their earlier wives. When the Egyptian and Syrian women discovered
that they had been cheated, they complained to Umar, the Caliph, to
enforce triple divorce again in order to prevent its misuse by the
Arabs. He had complied with their demands to meet an emergency
situation and not with an intention to enforce it permanently, but later
on jurists also declared this form of divorce as valid and gave sanction
to it.26
Thus we see that triple-talaq came into being during the second
century of Islam when Umayyads monarch, finding that the check
imposed by the prophet on the facility of repudiation interfered with
the indulgence of their caprice; they endeavoured to find an escape
route from strictness of law.27 It must be noted that it was not Quran
but the Umayyad practice which gave validity to these divorces.
According to most of the jurists this divorce should not be given
effect to as it‘s against the principles of both the Quran and the
Prophet of Islam. Abdur Rahim is more pungent when he says ―I may
remark that interpretation of the law of divorce by jurists especially of
the Hanafi School is one flagrant instance where, because of literal
adherence to mere words and certain tendencies toward subtleties they
have reached a result in direct antagonism to the admitted policy of
law in subject.28
Such talaq is lawful, although sinful in Hanafi law; but in Ithna,
Ashari and Fatimi law it is not permissible. According to Tyabji, by a
deplorable development of the Hanafi law the sinful and the most
26
Id. at 491.
28
Abdul Rahim , Principles of Muhammadan Jurisprudence (All-Pakistan Legal
Decision, Lahore, 1958).
27
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[Vol. 1 : 1
abominable forms have become the most common for ‗men have
always molded the law of marriage so as to be most agreeable to
them.‘29
Nature of Triple-Talaq
There is a great controversy regarding the effect of triple
pronouncement of the divorce at one and the same time. The
difference in the opinion of jurists is due to the difference in their
interpretation and application of the law. One class of the jurists is of
the opinion that no leniency is to be shown in the application of laws
so that people should not take undue advantage on that account. Abu
Hanifa and Malik, therefore, hold the three repetitions of divorce to be
final. The other jurists explained that Allah wants to treat people
leniently so that they may not be put to hardship, and also to minimize
the chances of separation. Hence, they hold three repetitions to amount
to one only. Ibn Rushd has explained that Islam believes in golden
mean.30 There is great controversy regarding the effect of triple
divorce at one and the same time.
Under the most of the classical schools of Sunni Islamic
Jurisprudence there is no material difference regarding the effect of
‗Triple Divorce‘ in substance, however, there is some slight difference
only in respect of procedure. According to Hanafi jurists this result in
a Mughallaza divorce though they call it an innovation. Whereas the
Shafii holds that if a husband repeats three pronouncements of divorce
but without intending, only for the emphasis it will result in a single
divorce but if he pronounces the three divorces intending or without
any intention, it shall result in three divorces. More or less same view
is held by the Hambali School. Maliki differ in their view in the sense
that they make a distinction between various expression used in the
pronouncement of divorce. The only progressive group is the Ahl-ehadis sect who accepts three divorces at a single sitting as one only.
Whereas in Shia law there is general consensus of opinion that the
29
Faiz Badrudin Tyabji, Muslim Law 163 (N.M.Tripathi LTD Bombay) 4th edition
1968).
30
K.N.Ahmad, Muslim Law of Divorce 85 (Kitab Bhawan, New Delhi, 1978).
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139
divorce in single sitting should be counted as one and the Imamia sect
go so far as to say that such a divorce is no divorce at all.
Legal and Religious Aspect of „Triple-Talaq‟
In Islam, law cannot be dealt with as a separate aspect from religion. J.
Mahmood in Govind Dayal v. Inayatullah31 held, ―it is to be
remembered the Hindu and Mohammedan Laws are so intimately
connected with religion that they cannot readily be served from each
other.‖
The above judgment is totally applicable in the cased of ―TripleTalaq‖, either the three pronouncement should be treated as one
revocable divorce or three divorces. For this problem both legal and
religious aspect are the same and the two aspect only deal with the
problem whether three divorces in single breath should be taken as one
or three.
Position of Triple-Talaq
Jurisprudence
under Basic Source of
Islamic
When the triple divorce is seen in the light of the four basic sources of
Islamic jurisprudence, we see that a principle to become a law has to
be supported by the Quran, Hadith, Ijma, and Qiyas. If the solution of
the problem is given in the Quran it is the final ruling of sharia, if
there is no clear exposition of it in Quran we examine the traditions of
Prophet (PBUH), and if the solution is there it must be taken as rule of
sharia. If the problem finds no solution in either of those, we refer to
general consensus of opinion or Ijma and if the problem has been
solved by Ijma it will also become rule of Islamic Law.32
31
(1895) 7 All. 775, 781; cf. Furqan Ahmed, Triple Talaq: An Analytical Study with
Emphasis on Socio-Legal Aspect 86 (Regency Publication, New Delhi, 1994).
32
Supra note 6 at 41.
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Position of Triple-Talaq in Quran
In the Holy Quran there is nowhere been ordained the three divorces
pronounced in a single breath would amount to three separate
divorces. The verse of Quran relied upon is verse 2:229:
―Divorce must be pronounced twice and then (a woman) may be
retained in honour or released in kindness. And it is not lawful for you
that ye take from women aught of that which ye have given them,
except (in the case) when both fear that they may not be able to keep
within the limits (imposed by) Allah. And if ye fear that they may not
be able to keep the limits of Allah, in that case it is not sin for either of
them if the woman ransom herself. These are the limits (imposed by)
Allah. Transgress them not. For whoso transgresseth Allah‟s limit,
such are wrong doers.‖33
Accordingly Imam Razi writes:
―Divorce two times, this is, divorce on two separate occasions.‖ 34
He further says:
―A lawful divorce is that given separately because the existence of
‗two‘ is only possible when there is space between once and the
other.‖35
Thus it can be said that if two divorces in a same breath cannot be
regarded as valid divorce then how three divorces can be treated as
valid.
Also it has been laid down in holy Quran that when the divorce is
given it should be given for the prescribed period of waiting (iddat):
―O Prophet when ye (men) put away women, put them away for
their (legal) period and reckons the period, and keeps your duty to
your Allah, your Lord.‖36
The giving of divorce for the (Idda) ―waiting period‖ means that
the divorce is given at such a time as marks the beginning of Idda. He
who gives three divorces at a time does not take Idda into
consideration because with the pronouncing of first divorce the Idda
starts, but in the case of the second and the third the Idda has not been
33
Supra note 28.
Al-tafseer Kabeer (2) 260, as cited in supra note 6 at 44-45.
35
Ibid
36
Quran: chapter LXV, verse 1.
34
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taken into account, although for every divorce it is necessary to have
regard for the Idda.37
In short, there is no Quranic basis to establish that three divorces
on a single occasion should amount to an irrevocable divorce. As to
deduction of one point from another, it is nearer to the purpose of
Quran to treat three divorces as one.
Position of Triple-Talaq in the Traditions of Prophet
We see that there is no express direction in the tradition of the Prophet
(PBUH) regarding the validity of three divorces together at one time.
There are different traditions of Prophet quoted by scholars regarding
whether three divorces at same time should be treated as one or three
distinct divorces. Those scholars who accept triple-talaq on a single
occasion as one quote following tradition in its favour:
It is said that the notion of three divorces as one is not altogether
baseless and invalid, but there is a ground for it which has always been
accepted by a group of ―Ahl-e-Sunnat Wal Jammat‖ (the followers of
the tradition of the Prophet and of the decision of the collective body
of Muslims). Here are the some of the saying of the Prophet (PBUH)
in brief:38
Abu Sahba said to Ibn-i-Abbas ―do you know whether the three
divorces were treated as one in the days of the Prophet and of Abu
Bakr and early years of Umar‘s Caliphate?‖ Ibn-i-Abbas replied, ―Yes,
it is known to me.‖39
In another saying it is stated that ‗Rakana‘ gave to his wife three
divorces at a time and the Prophet (PBUH) allowed him to retain his
wife.40
Shokani writes:
―And a group of the people of learning has preferred the opinion
that divorce did not become effective if pronounced successively and
in this situation there occurs only one divorce.‖
37
Supra note 6 at 47.
Supra note 6.
39
Muslim: al-Sahih,(1) Kitab-al-Talaqs as cited in supra note 6 at 30.
40
Ahmad Ibn-i-Hambal, Musnad (1) 265 as cited in supra note 6 at 30.
38
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The author of Al-bahr has traced it from Abu Musa Ashaari, and
according to another narrative of Hazrat Ali, and another group
including Taoos, Ata, Jabirbih Yazid, Hadi, Qasim, Nasir Ahmad Bin
Isa, Abdullah Bin Musa Bin Abdulla has traced it from Ibn-i-Abbas.41
Whereas among those tradition which the scholars have quoted in
favor of treating triple divorce in same breath as three distinct divorce
has no express mention about it and there are other, of which, the
circumstances are different, and so, they provide no argument. Some
of them are weak or non-authentic. So there is none among those
which may be cited as basis of such conclusive argument. Some of
them are given below:
This tradition relates to ‗Uwaimir-Ajlani‘ in which the story of Lian
has been recorded:
―When both (husband and wife) had undergone the procedure of
‗swearing‘ Uwaimir said ―if I still keep her with me then I shall prove
to be a Lian‟ and again he gave her three divorces before the Prophet
(PBUH) had ordered it.‖42
This tradition is often presented to prove that Uwaimir gave three
divorces in the presence of Prophet and he did not object it and
allowed it. But it is not correct to argue from this tradition, because
after Lian there cannot be any re-union and the spouses cannot remarry even if they want. So the three pronouncements were only to
emphasize the Lian.
Further it has been argued that when Hazrat Umar held these three
divorces valid, it was in the presence of companions of Prophet who
did not object to it. But the important question to be asked here is that
on one hand is the judgment of Hazrat Umar and on the other hand
there is practice during the time of Prophet as well as Hazrat Abu
Bakr. So how can the practice of Prophet (PBUH) be abrogated, it has
to be preferred by all means.
Thus on review of all the religious literature it can be
authoritatively said that the on the question of effectiveness of tripletalaq, there is no clear commandment in the Holy Quran or in the
41
Al-Shokani, Mohd. Bin Ali Bin Mohd. , Nainul Avtaar 21 as cited in supra note 6
at 30.
42
Supra note 6 at 31
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traditions of Prophet (PBUH) nor any consensus of the opinion can be
proved.
IV. Role of Indian Judiciary
The view of judiciary on the subject of triple divorce has to be
analyzed critically so as to determine how the judiciary has examined
the controversy of triple-talaq prevalent in the Muslim world.
‗Triple Divorce‘ is recognized and enforced by Indian Judiciary
from inception, as early as in 1905 in the case of Sara Bai v. Rabia
Bai,43 the Bombay High Court recognized ‗triple divorce‘ on
irrevocable footing.
Further the Privy Council also in the case of Saiyid Rashid Ahmad
v. (Mst) Anisa Khatun44 recognized ‗triple divorce‘ pronounced at one
time as validly effective.
In Ahmad Giri v. Begha45, the court for the first time counted the
role of intention as very important factor in determining the
effectiveness of the divorce. However, the court refused to bring about
any change in existing form of talaq-ul-biddat:
The basic reason for this attitude of the judiciary could be due to
the fact that judiciary in British India believed that the Muslims in
India have faith that there law is of ‗divine‘ origin, therefore is
infallible, immutable and unchallengeable. There was reluctance
among the judiciary on the account that a decision should not hurt the
feeling of the general Muslim. In spite of realizing the deficiency they
could not contribute meaningfully.
But later on a change in trend can be seen in the attitude of the
judiciary. Through the study of true Islamic law and writing of many
authors like Ameer Ali, Yusuf Ali, it was contradicted that the law of
divorce in Islam gave arbitrary and whimsical power to husband to
divorce his wife. As it has been already mentioned that the true Islamic
philosophy of ‗Talaq‘ as enunciated in Quran reveals that there is no
scope of arbitrary and easy divorce in Islam.
43
ILR (1905) 30 Bom 537.
AIR 1932 PC 25.
45
AIR 1955 J&K 1.
44
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Mr. Justice Baharul Islam46 has given an eye-opening judgment,
and through the paramount source of Islamic Authority has given a
right meaning to law of divorce under Islam. Well aware of his
limitations imposed by the precedent of the Privy Council, he
attempted a bold break-through to reveal the true meaning and
connotation of talaq as envisaged in Quran. Finally, he projected the
true concept of talaq as enjoined by the great light that:47
(1) Talaq must be for reasonable Cause;
(2) It must be preceded by ―attempts at reconciliation‖; and
(3) It ―may be effected‖ if the said effects fails.
Logical conclusion of original sources of Islam relating to talaq
reveals that neither the husband nor the wife has the unbridled and
arbitrary power to divorce. In view of these facts unintentional tripletalaq pronounced at single occasions, are in total negation to Sharia.48
Also, K. Iyer, J. in the case of A. Yousuf Rawthher v. Sowramma49
held that it is a popular fallacy that Muslim male has unbridled power
of divorce as it‘s against the injunction of Holy Quran. And that the
Muslim law as applied in India has taken a course contrary to the spirit
of Islam.
Also in the case of Rukia Khatun v. Abdul Khalique Laskar,50 the
Court went out to hold that the correct law of talaq as ordained by the
Quran is that the talaq must be for a reasonable cause and be preceded
by the attempts at reconciliation between the husband and wife by two
arbitrators, one chosen by the wife from her family and other by the
husband from his. It is only when their attempts failed talaq may be
effectuated. In Ahmadabad Women Action Group v. Union of India,51
a writ petition was filed to declare Muslim Personal Law which
enables a Muslim male to pronounce unilateral talaq to his wife
without her consent and without resort to judicial process of courts as
46
He was Chief Justice of Gauhati High Court and tried to give correct meaning to
law of divorce among Muslims in India. His view point on Talaq get support of Prof.
Tahir Mahmood‘s writings on Talaq: the Muslim Law of India (1980). Also it is very
unfortunate that most of his decisions have remained unreported, so the reforms were
further delayed.
47
Sayid Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25.
48
(1981) 1 Gau.L.R 368.
49
AIR 1971 Ker. 261.
50
(1981) 1 Gau. L.R. 375.
51
(1997) 3 SCC 573.
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145
violating articles 13, 14 and 15 of the Constitution. However, court
refused to entertain the writ petition, because the issue involved state
policies.
But in early August 2004, the Lucknow bench of Allahabad High
Court reiterated the condition for a talaq according to shariat,
emphasizing the fact that it should be pronounced over three sitting,
since the talaq had apparently been sent by registered post.52
Further in the case of Riaz Fatima v. Mohammad Sharif,53 the
Delhi High Court held triple-talaq to be invalid in the eyes of law.
Recently in the case of Masroor Ahmad v. State (N.C.T of Delhi) &
another,54 Badar Durrez Ahmad, J., gave a decision totally in
consonance of Quran and the Sharia law. The question before the
court was about the validity of triple-talaq under the Muslim law. The
Court held that triple-talaq (Talaq-ul-biddat) ought to be regarded as
one talaq revocable during the period of Iddat. Further he laid
emphasis on the importance of reconciliation before the procedure for
divorce is to be started. Also the husband has to duly establish that he
has properly followed the procedure of divorce as laid down in the
Quran.
Thus we see that there has been sea change in the attitude of
judiciary. The triple-talaq is now neither enforced nor considered valid
by the judiciary. But still there is need for a decision from the Apex
Court in this regard. While triple-talaq continues to receive express or
implied recognition against its practice in large number of Islamic
Countries, which have periodically reformed or modernized their
personal law.
Reforms in Muslim Countries
The reservation made by Islam both in the Quran and the Hadith on
the unilateral right of the husband, in particular the disapproval of the
52
In this case, Sadiqunissa had pleaded that she was thrown out of her husband
house after she failed to fulfill the dowry demand and was also tortured. Later, when
she and her two year old son preferred an application under section 125 of CrPC for
maintenance, her husband filed an objection saying he had already divorced her and
the Talaqnama was sent by the registered post.
53
135 (2006) DLT 205 .
54
MANU/DE/9441/2007.
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[Vol. 1 : 1
biddat form of divorce, and the introduction of dower and the Iddat
period provides only limited checks on the husband‘s power. In all
Mulim countries there has been pressure to introduce reform which
will safeguard the wife‘s right, and enable a proper opportunity to be
made to attempt to reconciliation.55 The laws of various Muslim
countries relating to the triple divorce are stated below:
The first of major reforms were in Egypt in 1920‘s. The Article 356
and 557 of the Law No. 25 (1929) expressly provides that triple-talaq
will be considered as one. In no other country except Iraq, women
have equal rights with men in the matter of divorce. Article 37 58 of the
Iraqi Code of Personal Status 1959 also treats triple divorce as one.59
In Sudan and Jordan also the position is similar; section 360 of
Sudaneese Manshur-i-Qadi al-Qudat, and Section 6061 of Jordanian
Code of Personal Status, 1976 respectively provide that triple-talaq
shall be considered as one. Same principle is followed in countries like
Morocco Yemen, Syria. Further in Pakistan, section 7 of Muslim
Family Law Ordinance provides that the traditional form of divorce is
not in force in its original form. A divorce in triple pronouncement is
no longer considered mughllazah or final and it is open to spouses to
continue the marriage if reconciliation is brought about between them
within the prescribed period.62
55
David Pearl, Werner Menski, Muslim Family Law 93 (Brite Books, Pakistan,
2000).
56
―A Talaq accompanied by a number expressly or impliedly shall not be effective
except as a single divorce.‖
57
―Every Talaq shall be revocable except a third Talaq, that given before
consummation, that for a consideration and that expressly described as irrevocable in
this law.‖
58
Cl. (2) ―where a Talaq is coupled with number, express or implied, not more than
one divorce shall take place.‖
59
Supra note 55 at 9.
60
―A formula of divorce coupled with number, expressly or impliedly, shall affect
only one divorce.‖
61
―A divorce coupled with a number, expressly or impliedly, as also a divorce
repeated in same sitting, will not take effect except as a single divorce.
62
Tahir Mahmood, Family Law Reform in Muslim World 251 (LexisNexis
Butterworth, Delhi, 1972).
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V. Effect of Triple-Talaq on Society
In Islam marriage has been regarded as an important function which an
ideal Muslim whether male or female should perform firstly in order to
save the society from unchastity and to build up a healthy society.63
This practice of talaq has deleterious effect on women; breaking of
a marriage contract has emotional and financial concerns. Often it is
not interest of women, which are at stake, but those of their children as
well.64
The trauma of triple-talaq is rife in the reality of women. For
example Sameera, a resident of Doungri, married a Moulana in 2001.
When she fell ill after her marriage and was advised to go to a
specialist, her husband was reluctant to spend money on her medical
expenses and refused to take her back. A month later, he called from
Lucknow and pronounced triple-talaq on the phone.65
In another situation, Amira was refused entry into the house along
with her children by her husband on returning from visit to her mother
house. Her husband claimed he had divorced her by pronouncing
triple-talaq, while Amira did not even know of it.66
Another is the high profile case of Najma Bibi from Orissa, where
the husband divorced his wife in inebriated condition only to regret it
later, brought to the forefront the regrettable consequences of the
triple-talaq practice.67
The scholars of Muslim law, who consider three divorces at a time as
one, argue that in our present social set up religion has been relegated
to such an extent that religious values have become eclipsed. It has
ceased to be a way life, a guiding source and an inspiration. This is
63
Seema Durray, ―Muslim Law of Divorce in India: A legal Reflection‖, in Imtiaz
Ahmad (ed.) Divorce and Remarriage Among Muslim 397 (Manohar, New Delhi,
2003).
65
Manoj Nair, ―Two Women recall ‗triple Talaq trauma‘‖, Mid Day, July 21, 2004.
66
Ibid.
67
In this case Nazma Bibi‘s husband divorced her in May 2004, following a quarrel
in an inebriated condition. Later her husband regretted his decision and the couple
continued to stay together. However, village elders objected to their living together
after the Talaq. The couple went to the local Maulvi and obtained a ‗fatwa‘
nullifying the divorce. This was not accepted to them who physically assaulted the
couple.
64
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because we have neglected our prime duty to learn, explore and
acquire religious knowledge.68
But to this distortion of the true Islamic law of divorce has now
come a refreshing fatwa from some Indian theologians:
―If a man who has pronounced a triple-talaq say he did it either in
ignorance of law or merely to put emphasis on his words, his marriage
remain intact until the expiry of his wife‘s iddat- during this period he
can unilaterally revoke the talaq, if he has not done so within that
time, any time later he can marry her with her consent.‖69
VI. Conclusion and Suggestions
Islam is a religion with a very practical outlook. It realizes the
importance of institution of marriage but also regards that there can be
certain situations and circumstances in which relations between the
parties to marriage becomes so strained that, it is not possible for them
to continue with such relationship. In Islam though divorce is
permissible it is detestable, and should be resorted to only in extreme
circumstances which is permitted by the irretrievable breakdown
theory of the modern world.
Under Islam the relationship between the husband and wife is
pious and private and it is not conducive to bring it outside the home,
this is the reason that Holy Quran ordains that before the proceeding
for divorce can be started there should be steps taken by members of
both the families to have reconciliation between the spouses and when
all these efforts fail then only talaq should be pronounced. Further the
Quran has in detailed laid down the rules and condition to be followed
by the husband while pronouncing divorce on his wife. It has been
wrongly interpreted by many authors, jurists as well as courts that
Islam gives arbitrary, unilateral and unbridled power to the husband to
divorce his wife. A Muslim husband cannot divorce his wife at any
time or for any reason or for no reason. This was the practice which
prevailed in the Pre-Islamic Arabia, and was criticized by Prophet of
Islam (PBUH) as against justice, and demeaning to the women. And
therefore to eradicate this, the Prophet (PBUH) introduced reform in
68
69
Supra note 6 at 73.
See, supra note 12 at 11.
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the divorce laws, but today the Muslims have reverted to same practice
which was abhorred by the Prophet (PBUH). The true law of talaq is
not as easy as it has been practiced by majority of Muslim.
It has been well argued that this form of unilateral triple divorce
has no Quranic injunction, further it cannot be traced in the traditions
of Prophet as most of the traditions quoted in the favor of triple-talaq
are either weak or are not authentic , moreover even if triple
pronouncement is there it has been interpreted as one. By going into
the historical background it has become amply clear that this form of
divorce only came into the practice after the death of Prophet (PBUH),
during Umayyad reigns to meet certain exigencies and was for that
period only.
The Prophet (PBUH) also gave the best declaration for women‘s right
in his farewell speech on the occasion of his last hajj. He demanded
that husbands should treat their wives with kindness and gentleness.
Men are to know that their women are their partners. Islam recognizes
the duties and responsibilities of both partners and, hence, emphasizes
that man is the ―Head‖, while the woman is the ―Heart‖ of the family.
Both are needed and both are complementary to one another.
The Muslim of today have totally forgotten the teachings of the
Holy Prophet (PBUH) as well as true spirit of the Islamic law which
gave women equal status as men as rights in all the domain of human
life social, political, economical as well as in the family.
So, to eradicate this practice it is necessary that firstly the
legislature should take a step forward and make laws in consonance
with the true Islamic law of divorce and to follow the precedent of
other Muslim countries who have reformed the triple-talaq in one
form or the other. Secondly it is very important the Muslim
community in general should be acquainted with the proper method of
divorce. And also to be made aware that resorting to this method of
triple-talaq is a sin. This can be done by mass education through the
medium of press and media. But the most important thing for the
evaluation of law is that law should be assessed in a society where it is
grown and developed; only then the utility of law can be understood. J.
Abdur Rahim and many other jurists have formulated this opinion.
There is a famous saying about law is that ‗He does not know the law
who does not know the spirit of law‘. However, whether it is
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interschool divergence or reform in the family law it should be first
social only then legal, because the society should internalise the law
otherwise there is no use of law. The reform politics will never help in
the development of society until the members of society are not taking
them seriously.
Thus it can be concluded that this need not be mentioned that the
Muslims are required to follow the teachings of Holy Quran and
Hadith rather than the rule imposed by a Caliph over people for a
certain period of time to prevent them from deceiving the women and
making mockery of law of Allah. The rule or the law was for people of
that time whereas the Quran and Hadith are applicable for all times
and all people. Almost all the Islamic Scholars whether belonging to
Ahlehadis, Shia, Hanafi or any other school of thought agree that this
practice is either Haram or Biddat so Muslims must not allow this to
corrupt their society.
Samreen Hussain

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CONCEPT OF „HUMAN‟ VIS-À-VIS HUMAN RIGHTS: AN
ANALYSIS
I. Introduction
A HUMAN being and a ‗person‘ do not mean the same thing as far as
the law is concerned. The traditional idea of a biological human being
or a member of Homo sapiens, being the centre or the sole concern of
all legal rights and obligations, has been replaced by a much broader
and more legal concept of a ‗person‘ to include entities which do not
necessarily possess all the biological attributes of a human being.1 The
general agreement about the need and propriety of a legal fiction to
personality does not necessarily mean that the idea of a human is
totally insignificant in all areas of law. Human Rights are entitlements
to which a person is entitled by virtue of being a human. All human
rights documents, starting from the Universal Declaration of Human
Rights re-emphasize the centrality of the concept of human and human
dignity.2 In other words it is inherently anthropocentric i.e. it is based
on the premise that human beings must be considered the centre or
above all aspects. It can be seen that this notion of anthropocentrism
has its roots in many religious cultures especially the Old Testament,
which propounds the view that God has given man the dominion over
all other creatures. This philosophy of humanocentricm consequently
paved way for the belief in dignity and moral worth of every human
being which is fundamental to the idea of human rights. The western
origin of the existing human rights discourse provides the historical
proof for such a conclusion.3
But this assertion of human, as the supreme amongst all creation
and the resulting significance of human rights discourse, is not
1
The idea of deodand under English law can be cited as an example where the
ancient law has attributed legal recognition to non-human animals and objects. In the
modern days a distinction is generally made between natural and non-natural persons
and by virtue of the legal fiction as to personality non-human entities like
corporations, states, idols etc. are granted legal recognition to a limited extent.
2
The Universal Declaration of Human Rights, states in art. I, "all human beings are
born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood . . . ."
3
A different approach can be found in the Eastern and Native American thought
where non-human world is also considered relevant.
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Concept of Human vis-à-vis Human Rights
[Vol. 1 : 1
uncontested. There are a lot of people who reject the idea of
humanocentricm and argue for an inclusive ethical and moral standard
for the whole world, including animals and other elements of the ecosystem.4 For them the current human rights discourse aims at
reiterating human hegemony over other creatures and environment
who equally have a right to live and flourish and are capable of
creating imbalances in the ecology which might ultimately lead to total
destruction. Taking these into account the following pages examine the
foundations for the rights that human beings as a species claim, based
on the inherent dignity that they claim to possess. In other words-it is
an inquiry as to whether any rational foundation can be deciphered,
except for the membership in a particular species, as the basis for the
assertion of human dignity. Such concerns, as many may point out are
not within the scope of human rights as a discipline. But this is the
only probable discipline that can take into account the concerns of
other creatures and ecology as a whole, as is evident from the way
international environmental law is evolving. The first part of this note
identifies certain possible foundations on which the idea of
anthropocentrism is based. The latter part tries to analyze whether such
peculiarities of human nature is of any significance to the enjoyment
of those basic entitlements categorized now as ‗human rights‘.
II. Foundations of Anthropocentrism
Some of the possible grounds which claim that humans are the centre
of everything are identified here.
Biological or Physiological
Anthropologists and biologists consider man to be the most developed
creation in terms of his physical as well as cognitive faculties.
According to Thomas Hobbes, human nature consists of two
attributes- animal and rational. Animal attributes are the faculties of
4
For example there are many environmental philosophies like deep ecology, ecocentrism etc. which emphasize the importance of non-human world and hold that
man is only a part of nature.
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body5 whereas rational attributes are powers of mind-which are
cognitive, imaginative or motive.6 There are many physical features
that make man different from other creatures and thus enable him to do
things for which many others are incapable of. These include-the
capacity for stable bipedalism,7 capacity to use hands as manipulative
members,8 capacity of human foot for sustained locomotion over
irregular grounds9 etc. These physical features have played a
significant role in human advancement beginning from the primitive
tool making to the various modern scientific inventions. But the most
distinguishable feature of Homo sapiens is their developed brain. The
size of the brain in proportion to the body size is the highest in human
beings.10 This has contributed to cognitive faculties and abilities like
speech and reasoning, capacity for sustained attention, learning
abilities, concept formation,11 capacities to recall etc.12 Most of the
5
He classified faculties of body as power nutritive, power generative and power
motive.
6
Hobbes, The Elements of Law 2 (Frank Cass & Co. Ltd., 2nd edn, 1969).
7
Bipedalism is the capacity to move on two feet. This combined with an upright
posture is one distinguishing feature of humans. Though there are other bipedal
mammals, their bipedal movements are often restricted to short runs, which can be
achieved by many monkeys, but they are in most cases incapable of striding or long
standing; J.Z Young, An Introduction to the Study of Man 471 (Oxford Publications,
1979).
8
Ibid. This capacity for a stable bipedalism enables man to use their hands as
manipulative members-from creating tools to using a computer and also brings the
advantage of a greater range of vision. Human nails, unlike the claws in other
primates allow him to have fine movements and hold things. The position and the
appropriate proportion of the thumb along with the peculiarities of the skin allow
him to hold things. This along with the alignment of the skin and the proportional
length and position of the thumb provide him with the ability to hold things.
9
Ibid. A human foot is quite distinct from those of apes and monkeys. Unlike the
other primate feet which have a mobile mid-foot the human foot possesses a stable
arch to give it strength.
10
Id. at 498. The number of the cells in brain is affected by the actual size of the
animal and the adaptive function of the brain. This refers to the gradual increase in
the number of cells in the brain during evolution in accordance with the changes in
the size of the body. A comparison of the estimates of adaptive cortical neurons in
mammals of different brain and body sizes show that the proportion of brain to body
size is highest in human beings. For a Homo sapien whose body weight is 6000 g.,
the brain weight would be 1300 g. whereas for an elephant it is 7000000:6000 and
for a Gorilla it is 250000:600.
11
Ibid. Concept formation refers to the capacity to recognize and abstract features
that a number of objects have in common such as food, wet etc. to more complex
aspects of ‗cause and space that involves abstraction from the data are provided by
several of the senses.
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scholars consider these rational capacities as the most striking feature
of human species. Locke considered man as a "thinking intelligent
being‖. The mental or rational attribute of man has been differently
articulated by scholars in various terms like rationality, moral agency,
free will, unity of consciousness13 etc.
The communication system of the human world is distinct from
that of the animal world. Olfactory, tactile or auditory is also attributed
to their biological peculiarities.14 The various features of human
civilization, like language, 15 script, culture, religion, art etc though
have strong biological base, are transmitted through factors other than
genetics. The capacity to organize coherent and developing societies
with different forms of symbolism, institutions and laws including
family and social group is a distinct feature of humans. The capacity to
create aesthetic, artistic, religious and philosophical ideologies can
also be added. Thus it can be seen that apart from their biological
peculiarities man is-a socially and culturally constructed animal-which
possess certain value systems and religious beliefs. The sense of right
and wrong, expressed by philosophers as moral agency, is in part a
cultural construct. All these factors due to his rational abilities have
enabled man to live a life quite distinct from other creatures and to
develop a world view centered on them.
There are many who reject the idea that man is the supreme
creation taking into account his biological peculiarities and the
capabilities. According to them humans are simply biological
organisms of sufficient complexity.16 Man is widely accepted as an
animal, especially in the post-Darwinian period, where links between
12
Id. at 488.
Id. at 471.
14
Ibid. The linguistic signs are produced by rapid concurrent alteration of several
different parts of the upper vocal tract. There is some evidence to show that the
capacity to transmit and receive messages is an inherited feature of human brain.
The changes needed for the initiation of speech would be the brain and the muscular
system controlling the airway.
15
Ibid. Linguistic signs have the advantage of being open in the sense that there is an
infinite or very large possibility of combining them in such ways as to produce new
messages while, the non-linguistic systems are closed as they consist of a finite, and
small number of basic signs.
16
13
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man and other animals in the form of a common ancestor, an extinct
primate somehow related to the other hominoids, is proved.17
Theological Foundations
Religion, especially the Judeo-Christian tradition, has contributed
much to anthropocentrism. Firstly the church believed that God has
made man in his likeliness.18 Genesis19 says ―Let us make man in our
image and likeliness‖ and ―when he appears, we will resemble him‖.20
According to Genesis, man is a creature amongst other creatures. But
it also says that he is not like other creatures- man is the final product
of the final act of divine initiative. Thus, this anthropomorphism21 of
Christianity had a major influence in developing an anthropocentric
approach in western thought.22
It is also provided in the Genesis that he was given the
responsibility of the Garden of Eden. He had the advantage of a direct
relationship with his Creator. Again, properties of fall and redemption
and sin and grace concern only the descendants of Adam, giving them
a nature radically different from other animals and plants. Another
important factor is the belief in life after death-the provision that only
a human being is entitled to an eternal living. Thus the belief in a life,
which is far more important than the temporal life, makes it impossible
to regard man as wholly a natural being. The idea of resurrection in
Christian theology means that the human body cannot be regarded as
having significance only in the mortal, physical world.23 These factors
influenced western thought especially in the medieval era where the
dominance of the church was at its peak. Basing on this theological
foundation, the western philosophy developed its human centric
17
Jens David Ohlin, ―Is the Concept of the Person Necessary for Human Rights?‖,
105 Colum. L. Rev. 209, 213 (2005).
18
Pierre De Tourtoulon, Philosophy in the Development of Law 7 (1969, Rothman
Reprints).
19
The main narrative first book of canonical Jewish and Christian scriptures.
20
Genesis 1.26 and 1 John 3.2, as seen in Saint Thomas Acquinas and Brian J.
Shanley, The Treatise on the Divine Nature, 43,(2006).
21
An interpretation of what is not human in terms of human characteristics.
22
Anthropomorphism is not peculiar to Christianity and can be found in the images
of Hindu Gods as well.
23
Richard H. Hiers, ―Reverence for Life and Environmental Ethics in Biblical Law
and Covenant‖, 13 J. L. & Religion 127,130 (1996-98).
156
[Vol. 1 : 1
thought. The basic premise was ‗reason‘ which according to them
distinguished man from other animals.
Philosophical foundations
A Latin apothegm states, "In the world there is nothing great but man,
and in man there is nothing great but mind."24 This thought runs
throughout the western philosophy and forms the basis of its
justification for anthropocentrism. The earlier Greek philosophy which
heavily influenced the western thought, more or less endorses the ideas
of supremacy and dominion of human over all other animals. The
Greek believed in the hierarchical order of beings - the Great Chain of
being25-which places man on a scale of perfection, placing him above
most animals. But western philosophy correspond more to stoicism,
which has the least concern for animals, rather than the Aristotelian or
Platonic ideas, when it comes to the position of man and treatment of
non-humans. 26 Stoicism like Christianity advocates the capacity for
reason and moral choice as the unique source of dignity in any natural
being. Beings which lack the source of that dignity would be naturally
out of that moral or ethical community.
Plato considered soul as the essential human attribute. It is an
immaterial or non sexual entity capable of being re-incarnated in
different human bodies. There is thus a divorce between the rational,
or spiritual and material aspects of a human being.27 According to
Aristotle it is only the ability to reason which distinguishes man from
24
Kylae Ash, ―International Animal Rights: Speciesism and Exclusionary Human
Dignity‖, 11 Animal L. 195, 196 (2005).
25
The hierarchy goes as follows- mineral, vegetable, animal, man and finally divine
beings superior to man.
26
It can be seen that in the later writings like that of Plato and Aristotle recognition
of the worth and dignity of all living creatures is recognized. Platonic writers
defended an elaborate ethic of vegetarianism and respect for animal life (though
founded on metaphysical doctrines of transmigration of souls in to animal bodies)
and Aristotelians argued that all the nature is a continuum, and that all living
creatures are worthy of respect and even wonder. See Martha C Nussbaum, Frontiers
of Justice, Disability, Nationality, Species Membership 328 (Oxford Univ. Press,
2006).
27
Aristotle rejected this dualism and according to him soul is form of the body,
giving life and substance to the specific matter of a human being, Infra note 30, 552.
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the rest of the animal kingdom.28 Western philosophy has stressed on
the reason and intellect of human rather than his physical features.
According to St. Augustine, over all is the rule of the God. This
―eternal reason‖ which creates and gives purpose to every part of
creation as well as to the creation itself has also been imaged in the
being of man and is reflected in his intelligence and will.29 He relied
on the Platonic conception of soul and maintained that the seat of will
was reason. When people exercise will they are acting in the image of
God, the supreme rational being. Similar observations were made by
St. Thomas Aquinas who regarded man as the first and foremost
creature of God.
Further, he contended that having been created in the image of God
and given the gift of reason by virtue of which he has free will; he
must take the burden of moral responsibility for his own actions.30
John Austin equated natural law to "Divine laws, or the laws of God,
or laws set by God to his human creatures . . . ." He said, furthermore,
that man was bestowed upon the reason to discover those laws which
were not promulgated in its entirety.31 Utilitarianism also, though
compassionate to animals, supported the idea of human superiority
based on his cognitive abilities. 32
The philosophers of renaissance, though had a marked difference
from the Greek-Christian tradition, maintained the higher and distinct
nature of human being. According to them what distinguishes man
from other creatures is that he has been created without form and with
the ability to make of himself what he will. Being without form or
nature he is not constrained, fated or determined to any destiny. In this
way man‘s distinctive characteristic becomes his freedom; he is free to
make himself in the image of God or in the image of beasts.33 This is
28
Lawrence C. Becker and Charlotte B. Becker (ed.), 1 Encyclopedia of Ethics, 70
(Routledge, 2nd edn., 2001).
29
David L. Sills (ed.), Encyclopedia of the social sciences, 70, (1968).
30
25 Encyclopedia Brittanicca (Macro) 552 (15th edn, 2007).
31
32
It is pointed out that the claim that subjugating other animals is "utilitarian" is a
misuse of the word as Mill meant it. Though Speciesism or human superiority is
prevalent in Mill's writings and has been the general attitude of most of his utilitarian
successors, he was adamantly opposed to the treatment of other animals as slaves and
objects. 202
33
158
[Vol. 1 : 1
based on a belief that man is non-natural and god-like and that he must
win his right to dominion over nature and in doing so he earns his
place near God in the life hereafter.
Kantian social contract also prefers the distinct character of
humans because of their commitment to rationality and the basic
conception of political principles as deriving from a social contract
among rough equals.34 Similar views can be seen in the writings of
John Rawls as well, when he points out that two features or moral
powers as he calls it, that distinguishes man from other creatures are-a
capacity for a conception of the good and a capacity for a sense of
justice, at least to a certain minimum degree. 35
A different stream of thought can probably be found in the writings
of skeptics, who insisted on the limited nature of man‘s capacities and
argued that the only form of knowledge he has is based on his
experience. Thus they maintain that human understanding even with
the faculty of reason is limited.36 19th century philosophy also shows
some deviation from the western idea of humanocentricm which was
spearheaded by the secularization of philosophical discourses.37
Consequently man began to be perceived as a biological creature or
just as a part of natural world. But the significance of these thoughts
cannot be over emphasized because it can be seen that all the western
philosophers starting from Aristotle, to Immanuel Kant, Thomas
Acquinas and John Rawls, despite their differences, agree that reason
distinguishes man from an animal and probably entitle him to an
exalted status.
III. Rationality and Human Rights
The most significant aspect of man, as evidenced from the above
discussion, is his capacity to think or to make rational or moral choice,
apart from the physical characteristics that provide him with an
advantage over other creatures. All philosophers, despite their
differences agree that it is the capacity to think or reason that
34
Ibid.
36
37
Supra note 30 at 557. By late 19th century the German philosopher Nietzsche had
announced that the God was dead.
35
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159
distinguishes man from other creatures. In other words, it is the
capacity of moral agency which distinguishes man and entitles him to
have certain rights. A moral agent is one who can be ―an author of his
own actions, a creator of his own life‖.38 Moral agency requires that
one has knowledge of relevant circumstances and how one's choices
will likely affect the basic interests of others to freedom and wellbeing. Putting in another way, a moral agent is one who does not
merely responds to a particular stimulus in some predetermined way,
but is able to evaluate an appropriate response by treating the interests
of others as deserving the same level of respect and consideration as
one regards their own interests.39 The same reasoning for human
dignity can be found in the international human rights documents as
well. For instance, the Universal Declaration of Human Rights, states
in Article I that, "all human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood . . . ."
But it is questionable whether rationality or moral agency is a prerequisite for the enjoyment of human rights. It can be seen that many
of the fundamental human rights like right to life or freedom from
torture etc. do not demand a fully developed moral agency or
rationality. They are aimed at protecting a person against pain and
suffering and also ensuring him a chance to have a life pursuing the
good inherent in him. Thus unlike other rights like the right to vote or
right to participate in the public life, which demands certain amount of
rationality and understanding in relation to the political system, theses
basic guarantees can be enjoyed by entities who do not have
intelligence or rationality according to anthropocentric standards. A
limited understanding of this fact can be seen even in the existing
human rights discourse in the form of limited recognition of persons,
who lack rationality or moral agency. Some of the illustrations are
given below, where personhood is recognized for the purposes of
human rights, in the absence of fully developed rationality or moral
agency.
38
Vincent J. Samar, ―Abortion: the Persistent Debate and Its Implications for Stemcell Research‖, 11 J. L. & Fam. Stud. 133, 136 (2008).
39
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[Vol. 1 : 1
Embryos and Foetuses- whether human?
The status of an unborn child as far as human rights is concerned, is
probably one of the most controversial area in the modern day human
rights jurisprudence. Most of the human rights documents are silent as
to the ‗personhood‘, that is necessary for human rights especially with
respect to the right to life of the human embryos.40 But the general
opposition to allowing unrestricted abortion and the prohibition against
use of embryos for stem-cell research would point to the fact that they
are recognized as humans, at least for the limited purpose of human
rights. The objection against creation or destruction of human embryos
for stem-cell research points to the fact that they are not treated merely
as human tissues or parental property. 41Thus it can be seen that
though the embryos and foetus lack rational agency or even the
physical structure of a complete human being, they are not completely
denied the status of a human, though recognition in explicit terms is
not made.
Human Rights of Children?
The human rights of under developed children with respect to their
rational as well as physical capacity, is another example. Human child
has a prolonged childhood and it takes many years to develop the
rationality and understanding of a full grown adult. Still the
international human rights documents protect the rights of child and
ensure that all the facilities are available to them for their full
development.42 Children are entitled to human rights as they are
biological human beings, but their freedom of choice is restricted
because they have a limited moral agency.43 Though the child must not
have developed all the hallmarks of rational agency depending on his
or her age, such capacities develop over the time and this assumption
40
American Convention guaranteed right to life from the moment of conception.
Mailee R. Harris, ―Stem Cells and the States: Promulgating Constitutional Bans on
Embryonic Experimentation‖, 37 Val. U. L. Rev. 243, 244 (2002).
42
Convention on the Rights of Child.
43
41
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161
for its potential to become a rational or moral agent is the basis for
attributing human rights.44
Mentally Disabled and Brain Dead Persons?
The recognition of the human rights of the mentally disabled people
point out to the fact that the division between biological features and
mental faculties is irrelevant as far as human rights is concerned. 45 The
capacity of moral agency varies among mentally disabled, depending
on the nature of disability, but international human rights law does not
deny them basic rights; instead they are given special protection to
have a comfortable living. Same is the case with brain dead people,
whose cognitive faculties are nil, still the law finds it difficult to treat
them as dead or deny them the right to life and dignity. 46 Concern for
their rights can be seen in the public resistance and legal reluctance to
legalize euthanasia in cases of brain dead patients.
IV. Concluding Remarks
In all the above examples it becomes clear that rationality or moral
agency arguably inherent in every human being, fails to provide a
convincing argument as the basis of human dignity and thus human
rights. This leads one to recognize the truth in the assertion that the
basis of human rights is premised on ‗species membership and
exclusive human dignity.‘47 Many have criticized this assertion of
species superiority as ‗arrant human chauvinism.‘48 This assertion,
formulated to serve the selfish interests of man, can be seen in various
branches of law where he considers non-humans and ecology as
property, which can be owned, controlled and even destroyed by him.
Extension of such an attitude to human rights is highly unfortunate.
Meta-physical considerations would undermine the prospects of its
44
Ibid.
46
Ibid.
47
Terminology used by Kyle Ash. See Supra note 24.
48
Id. at 200.
45
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[Vol. 1 : 1
legitimacy and progression.49 The second assertion on which human
rights is based is that of ‗exclusionary human dignity‘ i.e. dignity
peculiar to the members of human species. This has been rejected by
many contending that dignity need not be species-specific. Dignity is
synonymous with respect or worth and that the idea of human dignity
need not be formulated in comparison to a lesser or lack of dignity in
other species.50 An exclusionary human dignity, in the nature of
protecting man, at the cost of other members and even the ecology
would point out to the arrogance and selfishness in man.51 It is worth
mentioning in this context that there are some other thoughts, like the
eastern philosophy and some of the environmental philosophies which
explores the possibility of ethical considerations beyond ‗speciesism‟
and emphasizes the need for an ‗ethical co-existence‘. The increasing
environmental challenges threaten the existence of humans on earth,
which compel us to think beyond the constraints of speciesism.
Sreeparvathy G.
49
Supra note 24, Kyle Ash According to Kyle Ash the supremacy of human is based
on three propositions First, the cognitive abilities that humans have are the greatest
assets an animal can possess. Second, humans possess this ability and other animals
do not. Third, humans are superior because they have this asset.
50
Ibid.
51
Id. at 209. This has been articulated by Roger Brownsword in the following words―To say that humans have dignity, meaning that humans have a value, simply by
virtue of being members of the human species will not convince even fellow humans.
For, any attempt to privilege the members of a particular species, including the
members of the human species, merely by virtue of their species-membership will
attract the charge of "speciesism"--such a response is arbitrary and it plainly will not
do.‖

LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.
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163
LAWS ON FOOD ADULTERATION: A CRITICAL STUDY
WITH SPECIAL REFERENCE TO THE FOOD SAFETY AND
STANDARDS ACT, 2006.1
I. Introduction
INDIA HAS been called the land of Annapurna. Food and water are
not only the elixir of life, but they are worshipped as gods. In spite of
this fact, the evil of food adulteration is not only present in the society
to a great extent, but its history can be traced back to the times of
Kautilya.2
Recently, during Deepawali festivities there was no dearth of news
reports on the television and the local newspapers on how the
adulteration is being done in the sweets by the businessmen. As it is
the only time that the news channels are very active educating and
informing the public, that it seems festival is the only time when such
malpractice is on. But, the reality is that we hardly consume food on
any day, which can be considered pure and unadulterated. The food
items and the ingredients that we use to prepare food contain
adulterants. During the parliamentary debates in the Lok Sabha, one of
the Members of Parliament, Mr. Shailendra Kumar, shared his view on
the seriousness of the problem, as follows:3
…there is adulteration in milk. Urea and Oxitocin are mixed in
milk which causes a great risk of abortion and impotency. I was just
going through the report that adulterated biscuits in the name of
glucose and other brands worth 25 crore were seized in Punjab.
Likewise, I would like to remind the honourable minister that the
adulteration in mustard oil in the year 1988 had resulted in spread of
the disease cancer named ‗dropsy‘….mixing of coal-tar dye in pulses,
tea, and coffee lead to cancer…Lead Chromite is mixed in turmeric
1
Act 34 of 2006.
R.P. Kagle, 4(2) The Kautilya Arthashastra 260-270 (1970); see chapter 2, s. 77.
Kagle has translated those proses into English as follows: ―As to difference in weight
or measure or difference in price or quality, for the weigher and measurer who by the
trick of the hand brings about (difference to the extent of) one-eight part in( an
article)priced at one panna, the fine is two hundred (pannas)... For mixing things of
similar kindwith objects such as grains, fats, sugar, salt, perfumes and medicines the
fine is twelve pannas.‖
3
21 Parliamentary Debates, Lok Sabha 390 (Jul. 26, 2006)
2
164
Laws on Food Adulteration
[Vol. 1 : 1
which results in serious diseases like paralysis, anemia and abortion,
etc. Copper salt is mixed in pickle which affects kidney. Rangoli is
mixed in salt which causes stomach diseases…Injectioins are being
used in vegetables for their early growth…injections to the cows and
buffaloes to get more milk and profit…Similarly, the sweets contain a
material named Metabil Yelova road mill which carries the risk of
cancer.
As ‗food adulteration‘ is done in so many ways, one must precisely
know what the exact definition of the term is. The Prevention of Food
Adulteration Act, 19544 defines the terms ―adulterant‖5 and
―adulterated‖6 in so many words. In layman‘s language it means
debasing of food article with an inferior or deleterious substance. It is
a kind of slow poisoning. It is destruction of human life.7 It is the
gravest of socio-economic crime. We call it socio-economic crime
because it is done with the purpose of attaining profit. It has the
tendency to erode national health, character and economy, in equal
measure. The adulteration, by affecting the human resource of a
nation, has direct impact on national progress and production (GDP) of
a country particularly India which is a developing country. This may
be the reason why Food Safety and Standards Act, 20068 defines the
term ―unsafe food‖ instead of adulterated food.
The serious problem before the nation in the form of a conundrum
is that if the evil practice of adulteration can be traced back to
antiquity, then so is the legal remedy, that has always been in place.
Unfortunately, one remedy was replaced by the other with the passage
of time, without any change in the situation. As a matter of fact history
of food adulteration has been history of legislations. Going in the past,
there were rules in Arthshastra. During the British era, the Indian
Penal Code, 1860, came into force.9 The individual state laws,
imposing strict liability started coming into force since 1912. Finally,
4
Hereinafter referred to as ‗PFA‘.
S. 2(i), PFA says adulterant is ―any material which is or could be employed for the
purpose of adulteration.‖
6
S. 2(ia), PFA.
7
―It is often described as subtle murder practiced on community‖; see Mahesh
Chandra, Socio-Economic Crime 85 (N.M. Tripathi Pvt. Ltd., Bombay, 1979).
8
Hereinafter referred to as ‗FSSA‘.
9
Ss. 272 and 273 of the Indian Penal Code (IPC), 1860 deal with it.
5
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165
the central law and the rules there under were enacted in 1954 and
1955, respectively, which is operative till date. Subsequently, a number
of orders were passed relating to fruit, meat, vegetable oil etc. In 1986,
after the enactment of Consumer Protection Act, remedy came to the
consumers by way of compensation as well, which is a codified form
of law of torts.10
Presently, the central government has enacted the FSSA, 2006,
which is the consolidation of all the existing laws on food in general,
and food adulteration in particular. On November 18, 2008 the
provisions related to the establishment of the Food Safety and
Standard Authority came into force. Till date, the Central Authority11
has been established under the Act and the enforcement of rest of the
provisions is still awaited.12 The authority is working on the Rules and
Regulations to implement the Act.13 As soon as the Act completely
comes into force, all the legislations and the orders presently in force14
including the PFA will cease to have affect.
It is evident after going through the FSSA, 2006 that it is better
than PFA in many ways, but the actual implementation is yet to be
tested which can be done only once the legislation comes into force.
Before that is done, one has to really see where the problem lies. Is it
in the law or is it in the implementation? Or is it that the solution lies
entirely elsewhere?
As FSSA, 2006 is more or less framed on the basis of international
model the direct question of feasibility of such a law in the Indian
context comes in. Does India have the required machinery to
implement the law? In other words, do we have the required quantity
and quality of laboratories which are of foremost importance to assure
the implementation of the Act? According to V.S. Deshpande J.,15 apart
10
The Consumer Protection Act, 1986 is also available to the consumers in spite of
PFA being in force.
11
Office is established in Delhi.
12
The Central Government has repeatedly assured to bring the legislation in force
very soon. Last time it was done in March, 2009. According to the assistant Director
General, Mr. Dhir Singh, the Act will become fully operational in the beginning of
2010; see The Financial Express, Mar. 15, 2009
13
As notified on www.fssai.gov.in (visited on Oct. 22, 2009 at 12:35 pm).
14
According to s. 97 of the FSSA, 2006 read with sch. II.
15
Former Chief Justice of the Delhi High Court; see the forewords to the book by
Mahesh Chandra, Socio-Economic Crime (N.M. Tripathi Pvt. Ltd., Bombay, 1979).
166
[Vol. 1 : 1
from many other reasons, lack of concerted and organized opposition
by the society is the contributing factor. The battle against the socioeconomic crime in general has to be fought on legal as well as extralegal planes.
As we critically analyze the FSSA, 2006, we see that there are
advantages as well as certain loopholes that are yet to be filled and
some questions that have remained unanswered. The quest for pure
food is still on…
II. Food Adulteration: As Part of Different Laws
Before analyzing the FSSA, 2006 one needs to find out the remedies,
if any, provided under the other existing legislations. Starting from the
Constitution of India, right to pure food is not directly protected under
the Constitution but it can be covered under certain provisions such as
part of fundamental freedoms, the Constitution guarantees under
Article 19(1) (g) freedom of profession, trade, or business, thereby
ensuring that state cannot prevent a citizen from carrying on a
business, except by a law imposing a reasonable restriction in interest
of general public. Under Article 19(2), no such right can be enforced
where the business is dangerous or immoral. There can be restriction
on harmful trade.16
Right to food is a fundamental right under article 2117 and
similarly, right to health is also a part of right to life. It has been held
in number of cases that life is more than mere animal existence. For
example, in Kharak Singh v. State of U.P.,18 it was observed, ―Article
21 mean not merely the continuance of a person‘s animal existence,
but right to the possession of his organs, his arms and legs etc.‖ It
cannot be argued that health is not a part of life when possession of all
organs of the body is protected by the fundamental right to life.19
16
Harishankar v. Dy. Excise & Taxation Commissioner, AIR 1975 SC 1121.
As recently reiterated by the Apex Court in PUCL v. Union of India, 2007 (1)
SCC 719.
18
AIR 1963 SC 1295, 1312.
19
H.B. Giri, Consumer, Crime, and Law 87 (Ashish Publishing House, New
Delhi,1987).
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167
On one hand there are rights then on the other hand are the duties
of the state under article 39 (e) and (f)20 and article 47 of the
Constitution to raise the level of nutrition and standard of living and to
improve public health. The Supreme Court in Vinscent v. Union of
India,21 held, ―Maintenance and improvement of public health have to
rank high as this is indispensable to the very physical existence of the
community and on the betterment of these depends the building up the
society which the constitution maker envisaged, attending to public
health, in our opinion, therefore is of high priority, perhaps the one at
the top.‖
Finally, according to Schedule VII, adulteration of foodstuffs and
other goods is given under entry 18 of the Concurrent List.
The adulteration of food with an intention to sell is an offence
under sections 272 and 273 of the IPC which is punishable with the
imprisonment of six months and fine. States like U.P., West Bengal
and Orissa have enhanced the maximum punishment to life
imprisonment.22 The act is punishable when adulteration makes the
food article noxious. According to Oxford English dictionary,
―noxious‖ means injurious, hurtful and unwholesome. In Ram Dayal v.
King Emperor,23 Privy Council held that the mixture of pig fat with
ghee would be noxious to the religion and social feeling of both
Hindus and Muslims, still it does not come under the section (as it is
not noxious to the health). Similarly presence of non-permitted red oil
solvable coal tardy, the percentage of which has not been reported, is
not noxious.
Under the Code of Criminal Procedure the offence is noncognizable and bailable and not compoundable. The trial can be
20
The State shall, in particular, direct its policy towards securing- (e) that the health
and strength of workers, men and women, and the tender age of children are not
abused ….and (f) that the children are given full opportunities and facilities to
develop in a healthy manner…
21
A.I.R. 1987 SC 990 at 997.
22
An interesting question that arises here is that whether the increased punishment
has lowered the rate of the cases of food adulteration in these states. This can be
found out from the data given on www.indiastat.com. If the answer is ―no‖ then it
proves the failure of the approach and indicates that the solution lies somewhere else
and not in punishing the accused simply.
23
As cited in S.K. Sarvaria‘s (ed.), 2 Ra Nelson‟s Indian Penal Code 2338
(Lexisnexis-Butterworth and Wadhwa. Nagpur, 10th edn., 2008); A.I.R. 1925 All
214(1).
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conducted by any magistrate. In U.P. and Bihar there is no period of
limitation prescribed for taking of cognizance of the offence.
According to section 455(2) of the CrPC, the court may, in the like
manner, on conviction under sections 272 and 273 of the Indian Penal
Code, order the food, drink etc. in respect of which conviction was
made, to be destroyed.
In Emperor v. Barumal Jawarnal,24 it was held that selling wheat
containing a large admixture of extraneous matters, as foreign matter is
separable and wheat is not consumed in its existing condition. There
the offence was not committed. Similarly, according to Dhawa v.
Emperor,25 the mixture of water with milk is no offence, as the mixture
is not noxious.
By going through the provisions and moreover the cases under the
sections, we can easily conclude that there are loopholes that allows
the easy acquittal of the accused. Firstly, the case will not be covered if
the article of food is not noxious and secondly, it has been difficult to
prove the intention or the knowledge to sell.
Any person committing the offence is prosecuted by the state but
the consumer who was the victim of adulteration hardly gets any relief
under the IPC. In 1986, the Consumer Protection Act26 came into force
which provided for compensation to the consumers. While the PFA
and the FSSA, 2006, which will be dsicussed shortly, are piece of
consumer legislations that specially deal with malpractice of traders
with regard to food, the CPA is an umbrella legislation, which covers
each and every good and service that a consumer buys or hires on
giving consideration. The remedy available to the consumer is
compensation under CPA. The PFA provides for punishment and
fine.27 The procedure followed here is criminal procedure. In the
FSSA, 2006 there is a unique blend of penalty in way of fine and
punishment28 and compensation.29
24
Id. at 2345; (1904) 1 CrLJ 618.
As cited in K.D. Gaur, A Textbook on the Indian Penal Code 350 (Universal Law
Publishing Co., New Delhi, 3rd edn., 2004); A.I.R. 1926 Lah 49.
26
Hereinafter referred to as ‗CPA‘.
27
PFA, s. 16.
28
Id., ss. 50-58.
29
Id., s. 59.
25
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J.F. Kennedy (in 1962) declared some basic consumer rights as
right to safety, right to be informed, right to choose, and right to be
heard.30 Right to redress, right to healthy environment, can be added to
it. The CPA recognizes these rights in the objectives.
The CPA is special in a way that it follows its own tribunal system
from the District Forum to National Commission from where the
appeal goes to the Supreme Court. These tribunals are established
under the article 323B of the Constitution. Section 3 of the Act says
that the provisions of the CPA are in addition to provisions of any
other all laws for the time being in force. It means that provisions of
all the laws are equally applicable for the protection of the interest of
the consumer. Therefore, CPA and the PFA are equally applicable.
The Prevention of Food Adulteration Act, 1954
A very important step towards the addressing of the problem of food
adulteration was done in the year 1954 by enacting a central legislation
on the subject keeping in view the limits of the penal code. For
example, it does not cover the mixing of the substances that are not
noxious as water in milk and stone and inferior quality grains in
pulses. Moreover, it requires proving mens rea. The Act provides for
strict liability and at the same time condition of adulterated food to be
‗noxious‘ is done away with.
Prior to this there were number of state laws for each state, which
were enacted at different times and without mutual consultation
between the states. In 1937, a committee was appointed by the Central
Advisory Board of Health and it advised for the central legislation to
bring uniformity in the law. The basic idea behind is deterrent theory.
It has 25 sections and the rules were framed under it in 1955.
In Municipal Corporation of Delhi v. Surja Ram31 the object of the
Act was explained as follows:
…[T]he object and the purpose of the Act are to eliminate the
dangers to human life from sale of unwholesome article of food…it is
30
Ravulapti Madhavi, ―Is Food Safety Lurking in the Food Safety and Standards
Act, 2006?‖, 4(23), SCJ (Jour) 17 (2008).
31
As cited in Parkash C. Juneja, ―Prevention of Food Adulteration Act and
Consumer Protection‖, 8 Central Law Quarterly 371(1988); (1965) Cr.LJ. 571.
170
[Vol. 1 : 1
enacted to curb the widespread evil of food adulteration and is
legislative measure for social defense. It is intended to suppress a
socio-economic mischief, an evil that attempts to poison, for monetary
gains, a very source of substance of life and well being of the
community.
The Act provides for a Central Food Laboratory32 and the Central
Committee for Food Standards. The central government is vested with
the rule-making power. As per the need, the Act was amended four
times -1964, 1971, 1976, and 1986.
Loopholes in the PFA: Roscoe Pound, while classifying the social
interests under six heads, placed public health at top of it. As already
mentioned, in India also it is one of the directive principles of the state
policy. In spite of this fact, the object of the legislations has not been
achieved yet. There can be ‗n‘ number of reasons behind it, but the
doubt starts from the effectiveness of the legislation itself. There are
many critics of the PFA who have pointed out a number of loopholes
in it.33 Some of the prominent ones are mentioned herein, like the Act
does not provide for the mandatory standardization of food products.34
There is no requirement for training to the food inspectors. Usually,
they don‘t know how much sample to take and in what quantity the
preservative is to be mixed in the sample because of which the samples
are usually destroyed by the time they are tested. The minimum
number of such inspectors required for the area is not given. In other
words, the inspector to the population ratio is missing in the Act.
The PFA gives right to any person to get the sample tested if he
thinks that it contains deleterious substance under section 12. But for
this he has to pass two hurdles. First, he has to inform the seller the
purpose for which he is taking the sample and second that for analysis
he has to pay the requisite fees. As far as the first issue is concerned,
no trader who is really guilty will allow the consumer to take the
sample. Secondly, though the fee is refundable if the analysis report is
positive, it is not possible for all to afford it initially, as it is usually
32
To which food samples can be referred to for final opinion in disputed cases.
Prominent critiques are compiled herein.
34
Even quality control under Agmark for agricultural commodities including food
item is voluntary. See, Subhash C. Sharma, ―Consumer protection‖, 8(4) Central
India Law Quarterly 377 (1995).
33
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171
costly affair. Moreover it is always doubtful whether the analysis will
be cent percent precise.
There is the major problem with procedural part of the Act. The
Act fails to mark distinction between the categories of adulteration and
have same punishment for all kind of adulteration.35 According to
P.A.S. Rao36 though an honest attempt has been made to classify the
penalties into seven categories, it is unintelligible and obscure. ―The
procrustean cruelty is writ large in the provisions of section 16.‖37
While sentencing, the judge has no discretion as there is provision of
minimum punishment. On the contrary, a burden is placed on him to
state in judgment the special and adequate reasons as to why a
particular punishment is meted out.38 Lack of coordination has been
witnessed between the food inspector and public analyst who are not
legal persons and the public prosecutor who is not technical person.
This benefits the accused.39Moreover, the magistrates usually handling
criminal cases are not specialists in food adulteration matters and at
the same time they have the mindset of giving benefit of any doubt or
any inordinate delay to the accused, which spoils the prosecution case.
On one hand we can see that the procedure adopted makes it
difficult to prove the accused guilty, on the other hand the PFA is
covered under the Probation of Offenders Act, 1958. According to
section 20AA of the PFA, the Probation of Offenders Act, 1958 and
section 360 of Code of Criminal Procedure, 1973 are applicable to the
persons convicted under the PFA. As a result of this even the
perpetrators of the heinous socio-economic crime like this, which are
covered under the strict liability, are let loose after getting caught for
the first time.
Coming to the practical side, under the present scenario the
retailers are not in the position to press the manufacturers for giving
35
Subhash C. Sharma, ―Consumer Protection‖, 8(4) Central India Law Quarterly
377, 381 (1995).
36
, P.S. Rao, ―A Critique on the Prevention of Food adulteration Act, 1954‖, 13
Chartered Secretary 827 (1983). Author is Secretary, Food Specialties Ltd., New
Delhi.
37
Ibid.
38
Ibid.
39
Supra note 34.
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guarantee. Moreover there are no facilities available to the traders to
test the purity of the articles at the time of purchase.40
III. The Food Safety and Standards Act, 2006
The Food Safety and Standards Act has been enacted to consolidate the
laws related to food. The important thing to note is that it does not deal
with the food adulteration alone. It can be easily inferred from the
broad definition of the term ―unsafe food ―under section 3(zz) along
with many other expressions important for laying down the standards.
Again, the Act gives a vast definition of ―adulterant‖.41 And at the
same time few more definitions give us a broad picture such as
―contaminant‖, ―extraneous matter‖ and ―food additive‖. The short
title also leads us to the same conclusion. The interpretation clause
defines ―food safety‖ as ―assurance that the food is acceptable for
human consumption.‖,42 and ―standard‖ {under section 3(zv)} as ―in
relation to any articles of food means standards notified by the food
authority‖. For removing any doubt the term ―sub-standard‖ is also
defined {under section 3(zx)}.
Historical Backdrop:
The earliest mention of the comprehensive legislation on food with a
Food Regulatory Authority can be traced back to 1998 in the
recommendations of the Subject Group on Food and Agro Industries
appointed by the Prime Minister‘s Council on Trade and Industry. 43 In
2002, in the Budget Speech given by the Minister of Finance an
elaborate mention was made.44 Subsequently, a GoM was constituted
40
Emily Andrews, ―Penal Law on Food Adulteration‖, 8 Cochin University Law
Review 337 (1984).
41
According to s. 3(a), ―…any material which is or could be employed for making
the food unsafe or sub-standard or misbranded or containing extraneous matter.‖
42
S. 3(q).
43
Statement of Object and Reasons, FSSA, 2006.
44
See Government of India, Report on Pesticide Residues 147 (Parliament
Committee on Pesticide Residues , 2004); An extract, ―A Multiplicity of regulations
for food standard under the Prevention of Food Adulteration Act, the food products
Order, the meat Products Order, the Bureau of Indian Standards and MMPO, affect
the food and processing sectors. They need to be modernized and converged. The
2010]
ILI Law Review
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for the purpose. This law was expected to take into account the
international scenario and modern developments in developed and
developing countries so as to create an enabling environment and
promote self-compliance by the Food Processing Industries. The
Ministry of Food Processing45 was given the responsibility to assist the
GoM.
The first meeting of the GoM was held on Jan. 27, 2003 under the
Chairmanship of the Minister of Law and Justice. On this occasion,
along with the second meeting held on March 18, 2003, there were
deliberations made on how to chalk out a common strategy for
common acceptable draft bill. It was unanimously agreed that study of
international experience can become the building block of the new
legislation and an independent developmental and regulatory authority
be first set up, by bringing the statute, to look into all the aspects of
existing food laws and commend new legislation. It was also decided
that Secretary, Ministry of Food Processing Industries would
coordinate discussion with Secretary, Law Commission. Consequently,
the Member Secretary gave its recommendations.
After all these exercises, the Ministry of Food Processing prepared
the draft Bill that was places in the Lower House on August 25, 2005
by the then Minister of State Mr. Subodh Kant Sahay. The debate was
mainly held on July 26, 2006 in the Lok Sabha and on August 1, 2006
and on August 2, 2006 in Rajya Sabha. The Bill got the President‘s
assent on August 23, 2006 and has come into force in fragments from
time to time.46 The Authority was established on November 18, 2008.
Aim of the Act is to have an integrated and modern law on food
problems and to have a central authority, which can lay down the
science-based standards for scientific development of the food
processing industry.47
prime Minister has decided to set up a Group of Ministers (GoM) to propose
legislative and other changes for preparing a modern integrated food law and related
regulations.‖
45
The ministry was formed during the primeministership of Mr. Rajiv Gandhi in
Jul. 1988.
46
Ss. 4-10, 87, 88, 91 and 101 came into force on Oct. 15, 2007. Ss. 3 and 30 came
into force on Aug. 25, 2008. S. 90 came into force on Aug. 28, 2008. Ss. 16-18, 8186, 92 and 93 came into force on Nov. 18, 2008.
47
According to the Introduction, Statement of Object and Reason, and Preamble of
FSSA, 2006.
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The main features of the Act are: to establish an integrated line of
control and response, decentralization of licensing, single reference
point, self-compliance, making the business food operators to ensure
the quality at all the stages and graded penalties. The Act claims to be
contemporary, comprehensive, and having standards based on science
and transparency.
As the Act mentions few documents in the statement of Objects
and Reasons, which molded the draft bill, it becomes necessary to see
the Act in their light. They are discussed below.
Standing Committee of Parliament in Agriculture (2004-05)
The Ministry of Food Processing Industry constituted the standing
committee under the chairmanship of Mr. Ram Gopal Yadav. The
report of the standing committee was presented to the House on April
20, 2005. There were Five Schemes suggested.48 One of them was ‗the
Scheme for quality assurance, Codex standards, research and
development‘ which included ‗food safety and quality assurance
mechanism‘.
The committee emphasized on three points related to the FSSA,
2006. Firstly, need of value addition by food processing which is much
required for agricultural development.49 Secondly, need for uniformity
of standards, uniformity of quality, uniformity of regulations and
removal of multiplicity of legislation.50Thirdly, that the statistics of
laboratory is very grey. According to the report, even the Ministry of
Food Processing did not have its own food-testing infrastructure,
which was being managed by the Ministry of Health. Therefore, it
recommended a strong network of food testing laboratories, at least
one in each State/Region under the direct control of food processing
ministry.51
48
Government of India, Report: Standing Committee on Agriculture 4-5 (2005).
Presented on Apr. 20, 2005.
49
Id. at 1.
50
Id. at 13.
51
Id. at 27 and 43.
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Joint Committee on Pesticide Residues in and Safety Standards for
Soft Drink, Fruit Juice and Other Beverages:
The report of the Committee was presented on February 4, 2004.52 As
the title suggests, the report is mainly on pesticide residues that were
found in the cola brands and their level was 24 times more than the
permissible international limit. It mentioned the sorry state how PFA is
not having sufficient provision to fight against such unsafe food and
why we are in need of a completely new approach based on
international model. So far as the soft drinks, etc are concerned, the
Ministry of Food Processing Industries is the licensing authority and
Ministry of Health and Family Welfare is the regulatory authority.
Moreover, how the food sector is further divided between nine
ministries can be seen as given below.
Likewise, there is multiplicity of laws, enforcement and standard
setting agencies. For example the laws, other than the PFA, that are
presently in action are:
1. The Fruit Products Order, 1955.
2. The Meat Food Products Order, 1973.
3. The Vegetable Oil Products (Control) Order, 1947, etc.
Management of Food Industry under different Ministries:
MINISTRY OF
MINISTRY OF
MINISTRY OF FOOD &
HEALTH AND
AGRICULTURE
CONSUMER AFFAIRS
Essential Com. Act, 1955
FAMILY WELFARE Agriculture Produce
Prevention of Food
Marketing Act
Standards of Weights
Adulteration Act, 1954 Milk and Milk Product
&Measures Act,1976
PFA Rules, 1955
Order
Packaged Commodities
Health Food
Rule, 1977
Supplement Bill
Consumer Protection Act,
1986
B.I.S. Act,1986
VOP Control Order, 1947
VOP (Std. of Quality),
1975
SEO control (order), 1967
52
Under the chairmanship of Mr. Sharad Pawar.
176
MINISTRY OF
MINISTRY OF FOOD
COMMERCE
PROCESSING
Imports & Exports
INDUSTRIES
Regulations
Fruit Products Order,
Export Inspection
1955
Agency
Tea Board
Coffee Board
Coffee Act & Rules
MINISTRY OF
MINISTRY OF
FORESTS &
SCIENCE
ENVIRONMENT
&TECHNOLOGY
Trade in Endangered Atomic Energy Act, 1962
Species Act
Control of Irradiation of
Ecomark
Foods Rules, 1991
G.M. & Organic Foods
[Vol. 1 : 1
MINISTRY OF RURAL
DEVELOPMENT
Agricultural Produce
Grading & Marketing Act,
1937
Meat Food Products Order
MINISTRY OF HRD
(Development of Women
& Child Welfare)
Infant Milk Substitutes,
Feeding Bottles & Infant
Foods (Regulation of
Production, Supply &
Distribution) Act, 1992Rules, 1993
SOURCE: ANNEXURE to Joint Parliamentary Report on Pesticide
Residue, 2004.
Apart from this many organizations viz. Bureau of Indian
Standards, Central Committee for Food Standards, Ministry of Rural
development under ‗Agmark‘, Export Import Council under Exim
Policy etc. lay down standards in the food sector. Then there are many
overlapping and contradictory provisions in the above-mentioned
legislations and rules and orders. The report concluded that the system
is over regulated and under administered. Further it laid down the
salient feature for the new modern integrated food law as well as the
duties of the Food Safety and standards Authority.
Recommendations of Member Secretary, Law Commission
After doing an in-depth study in the food laws of the countries53 where
there is a central food authority, secretary came up with many
suggestions. Some of them are:
53
European Union, United Kingdom, Australia, New Zealand, Malaysia, Canada,
Thailand etc.
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177
1. There should be civil penalties for contravention of the act
instead of criminal punishments.
2. Criminal sanctions should be restricted to contraventions of
serious nature which must be tried by special courts.54
3. The new act must, apart from establishing a Food Safety and
Standards Authority empower the Central Government to
prescribe standards for food articles.
4. The Central Government and the state government shall have
power to recall any food item posing risk to the health.
5. Contravention of provisions of the Act should be subject to
civil penalty adjudged by adjudicating officers appointed by
the state government.
6. Appeals must lie to one-man tribunals to be established by
these state governments.
7. The comprehensive standard-setting legal instrument must
expressly make it clear that the mandatory provisions will not
apply to primary food producers namely farmers.55
The practices like focus on in-process quality control rather than
product testing, compliance rather than prosecution, compounding of
minor/technical violation, high Power Screening Board to examine
cases before prosecution,56 Periodic quality audits of food factories,57
etc. were also observed by the commission. It is interesting to note
that FSSA, 2006 is mainly based on the recommendations of the
member secretary of the Law Commission.
The Codex Alimentarius
The Codex Alimentarius is a Latin term that means ‗Food Law or
Code‘. It is a collection of international food standards adopted by the
Codex Alimentarius Commission, which is an international body
54
Trial by the Special Court was also suggested by the Ministry of Health in their
Concept Note on amendments to PFA.
55
It is done so that their interests are not adversely affected by the proposed
enactment. However the farmers should be encouraged to voluntary comply with the
set standards. The central government can frame suitable schemes under the Act,
offering incentives to such farmers.
56
The procedure is followed in Thailand
57
The procedure is followed in Turkey.
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[Vol. 1 : 1
responsible for the execution of the Joint FAO/WHO Food Standards
Programme. FAO and WHO created the Commission in the year 1962.
The programme is aimed at protecting the health of consumers and
facilitating international trade in food.
The standards in the Codex are for all principal foods, whether
processed or semi-processed or raw. A country in any one of the ways
may accept these standards.
The Codex defines certain terms related to the processing of food.
The definitions in FSSA, 2006 are taken from the Codex. For example,
the definition of ‗food‘, ‗food additive‘, ‗contaminant‘, ‗hazard‘,
‗risk‘, ‗risk analysis‘, ‗risk assessment‘, ‗hazard identification‘,
‗hazard characterization‘, ‗claim‘, ‗consumer‘, etc.
In the Preamble to the Code of Ethics for International Trade in
Food,58 the right to standard of living adequate for the health and well
being of the individual and his family is proclaimed in the Universal
Declaration of Human Rights of the United Nations. Therefore, the
major objective of the work of Commission is to protect the health of
consumer and ensure fair practices in the trade in food.
Benefits of FSSA
According to Subodh Kant Sahay, ―the Act is a historic one. It is fully
agriculture oriented and will constitute a regulatory authority that will
govern the standards and quality of food right from national level to
Panchayat level. ..Again, it is a major initiative in abolition of
inspector raj.‖59 The biggest advantage it has is the mandatory
standardization it provides for food. Moreover, the liability of the
person will be civil liability which will be easier to prove. It will be the
special responsibility of the food business operator to ensure that the
articles of food satisfy the requirements of the Act at all stages of
production, etc.60 As the Act has taken inspiration from the Codex, its
standard will match the world level quality. For the first time there is a
provision for compensating the consumer who gets any injury or incur
any health hazard, along with the penalty or punishment given to the
58
1A Codex Alimentarius 17 (1999).
60
The FSSA, s. 26.
59
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179
perpetrator. The Act imposes responsibility on the operator of business
to recall the articles of food, if he finds that they don‘t satisfy the
standards of the Act.61 If the inspector or the food officer is found
misusing his power, there is provision to impose fine on him on the
proof of his being guilty.62 The amount of fine is Rs.10,00,00.63 Now
there will be only one Ministry looking into the whole affair instead of
nine ministries. The graded system of penalties will remove confusion
and inequality that existed before as there was same minimum
punishment for all forms of adulteration.64 In the adjudication system,
there are two types of treatment: the matters that are hazardous to the
health and those that are not. Latter will be referred to the Special
Court and later to the High Court. Farmers and the fisherman are
excluded from the purview of the Act. There is wide network of checks
and balances that have been provided in this Act. Every business
operator is required to have license or registration. Every distributor is
required to be able to identify food articles to the manufacturers and
every seller to the distributor. Standards based on science are required
to be in place that will support the scientific development of the food
processing industry. There is provision for the establishment of the
scientific panel and committees. There is a provision for improvement
notice65 to be given to the one not complying with the standards, after
non compliance of which the food safety officer can take the action.
There are so many checks to make sure that a wrong case is not made
against any manufacturer. Starting from Food Safety Officer, the
Adjudicating Officer, Food Safety Appellate Tribunal, State
Commissioner of Food Safety, Special Courts (in case of
imprisonment), and finally the High Court will provide correction if
required. The Act will include the Food distributed in the Public
Distribution System i.e. it will cover the Food Security Act, 2009.66
This is possible by virtue of section 3(n), which defines ‗food
business‘; it means ―any undertaking, whether for profit or not and
whether public or private, carrying out any of the activities related to
61
Id., s. 28. It provides for the ‗recall procedure‘.
Id., s. 39.
63
This amount was nominal in the PFA.
64
The FSSA, ss. 48-67.
65
Id., s. 32.
66
Not brought to force yet.
62
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any stage of manufacture, processing, packaging, storage,
transportation, distribution of food, import and includes food services,
catering services, sale of food or food ingredients.‖
IV. Loopholes in FSSA, 2006
Above mentioned benefits give a very bloomy picture but if we look
deeper the legislators seem to be overzealous in incorporating the
international standards. The main focus of the Act is on the processing
industry and the unorganized sector is completely neglected. Almost
every report says for a Central authority but doesn‘t mention how the
establishment of central authority has proved to be effective in other
countries. Some of the drawbacks are given below.
1. As the Act provides for compulsory process of registration, this
may create problem for small businessmen like hawkers and
venders.
2. There is no registration process mentioned; nor is there any
authority specified for the registration.
3. The Food Safety Officer has defined no jurisdiction for the sake of
inspection and seizer of sample.67
4. The provisions that give power to the officers to grant license, or
impose huge penalty give way to possibility of corruption.68
5. As the Act provides for both the criminal as well as civil
procedure, there is possibility of confusion as to what procedure to
be followed.
6. One year limitation period has been provided for the bringing the
case in the notice of an authority under the Act.
7. Except from the packaged drinking water, the potable water used
in the manufacture of most of the articles of food, is excluded from
the purview of the Act.69
8. Finances are lacking for the complete implementation of the Act.
According to the Financial Memorandum of the original Bill.70 The
total sum allocated for the purpose is ten crore rupees. Seven crore
67
The power is given under s. 41(1) of the FSSA.
The FSSA, s. 69(1).
69
PFA expressly excludes water.
70
The Food Safety and standards Bill, 2005 along with the Financial Memorandum
was introduced in the Lower House on May 22, 2005.
68
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have been spent on the infrastructure of the food authority and
remaining sum is kept for the establishing of laboratories, which is
highly insufficient.
9. There is no final decision as to which Ministry will see the
administration side of the Act. Is it Food Processing Ministry or the
Health Ministry that will see the implementation?
10. There are certain expressions that are not defined and that might
add to the number of litigations due to their ambiguous meaning.
For example, ‗safe and wholesome food for human consumption‘,
‗good manufacturing practices‘, and ‗good hygienic practices‘.
Similarly, it is not clear as to why ‗contaminant‘, unlike any other
term, is not defined as the Codex defines it. It omits the intention
part of the definition.
11. The unorganized sector in India cannot be supposed to adhere to
the norms of the Act as mentioning ingredients and their
specification, etc.
12. There is no estimation of the cost to be borne by the State
Governments, which are the nodal agencies.
13. As food business includes ‗any undertaking whether giving profit
or not‘, this tends to include in itself and even criminalizes services
rendered by the gurudwaras, the zaket at Mosques and dargah,
bhandaras, which feed millions of poor people. To avoid such
undesirable consequences, we need laws to project the diverse food
laws and culture from the disease causing homogeneous centralize
food culture of the West.
14. There is no technical qualification attached to the ranks of the
officers who are assigned the task of issuing of license and fixing
of liability.
V. Suggestions
After thoroughly going through the provisions, I have following
suggestions to submit:
1. As the number of hawkers cannot be denied in India, there should
be representation from their association as well, in the Food
Authority.
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2. The definition of ‗food‘ expressly excludes the animal feed from
its purview. The fact is that whatever pesticides, insecticide etc.
gets into the animal feed and consumed by the animal (cow, goat,
etc.) becomes a part of food chain. For example, it is present in the
milk. Therefore, this should be made part of the definition.
3. Food chain from farm to the products needs to be traced. But as the
farmers are excluded from the purview of the Act,71 the tracing is
possible to the mandi only.
4. As the there is lack of proper training of procedure, both legal and
scientific or technical, there has usually been problem taking the
sample in the adequate manner and quality required for testing. For
this purpose, the Ministry of HRD can think over role of
universities, which can, after looking at the seriousness of the
affair, provide for the courses on food testing.
5. A separate Ministry must look after the matter of food adulteration
being a serious matter that affects the health of the citizens. In fact
it should continue to run under the Ministry of Health rather than
of the Food Processing, which has to deal with and look into other
relevant affairs.
6. Food adulteration is a very serious offence. Therefore, it should
make the CEOs of the company liable.
7. There should be laboratory in each district.
8. Hawkers should be brought under the ambit of the Act, as they do
the major part of the commerce. The method of testing in their case
should be made simple and non technical (not involving so many
formalities)
9. Food recall should be issued in the media to inform the citizens
and make them aware about the unsafe food.
10. The Act should have a compulsory provision for black-listing of
the companies or even publication when held guilty of the offence.
It should be made part of the punishment. Provisions for
publishing the name of the culprit is there but not in every case.
So, it should be done in every case,
11. The Codex and the Committees have suggested Confidence
Building Measures among the consumers. This can be done by
attaching the logo displaying that products are safe. This logo that
71
See the definition of ‗primary food‘.
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can be understood by literate or illiterate person should be made
mandatory.72
Relation of Science and Law:
As already mentioned, the main problem with the Act, whether PFA or
FSSA, 2006 is the implementation. The laboratories are important
elements towards implementation. They are the links between the
science and law, not only because they are meant to detect the
adulterant in the food but also because there should be correct
detection of the disease caused by the bad food. The problem is that
the Act does not give provision for such facility in the laboratories i.e.
detection of the disease caused. Actually this should be one of the
factors in deciding the graded punishment.
The preamble of the FSSA, 2006 goes ―An Act to…establish the
Food Safety and standards Authority of India for laying down sciencebased standards for articles of food.‖ The question that arises is, such
emphasis on science not being part of the PFA, does the new Act that
provides for the establishment of state-of-art laboratories which are
much more prompt and fast in giving reports? Will the interaction of
law with the science contribute towards the accurate reports?
The fact is that certain fields of science- epidemiology, toxicology,
and clinical medicine, among others- are centrally needed to inform
courts of whether and to what extent exposure to a product might have
contributed to someone‘s injury.73 In order to show that exposure to
toxic substances caused or contributed to the human harm, substantial,
time-consuming, and often long-term scientific studies are needed.
Human epidemiological studies are almost best kinds of evidence of
human harm from toxic exposure.74 It is difficult to identify how much
exposure was received. At the same time the studies are expensive to
conduct. More seriously, judges and larger public may not appreciate
how intensive they can be. Regrettably, too frequently, they are not
able to detect an adverse effect even when it is present.
72
Carl F. Cranor, Toxic Torts, Science, Law and the Possibility of Justice 1
(Cambridge University Press, NY, 2006).
74
Ibid.
73
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[Vol. 1 : 1
Carcinogens, reproductive toxicants and neuro-toxicants are
invisible, undetectable intruders that can have long latency period and
they rarely leave signature disease, often operates by means of
unknown complex, subtle molecular mechanisms and when they
materialize into harm, injure humans in ways that researcher might
not discover for years.75 Understanding the property of such
substances and assessing any risk that they pose, requires even more
subtle scientific expertise and studies than for other areas of inquiry.
Are the laboratories in India ready for such challenges?
We don‘t have such facilities and that is a fact. Even during the
parliamentary debates,76 Shri Ram Kripal Yadav of Patna said, ―The
fact is that in many States, there are no laboratories. What to talk of
districts when there is no laboratory in the State capital. There is no
proper staff who can guide…There is a laboratory in Patna. I myself
have seen this laboratory which is in very poor condition.‖
Number of laboratories for testing food: Most of the laboratories in
India have instruments that are old and are not functioning properly.
Demand for state-of-art instrument was made in the Parliament during
the debate. It was said77 that there is need to establish a large set up of
down to line infrastructure and quality labs, which are essential for the
implementation of the law. Shri Adhir Choudhary, an MP from West
Bengal said:78
Due to lack of laboratory instrumentation, due to lack of proper
training to testing personnel, due to lack of observation of rules, this
sector has suffered a lot. It is suffering because the instruments are
relatively expensive… [I]nstruments are to be imported from the
foreign countries. We have resource constraint. Here scientific
research is sporadic. Training facilities are poor and less rigorous.
The honorable member also brought to the notice of the House the
role of universities which are reluctant to offer course in food testing.
Shri Avinash Rai Khanna,79 an MP from Hoshiarpur, tried to draw
attention towards the financial aspects. The structure of authority
75
77
Id. at 377. See speech of Shri Subodh Kant Sahay.
78
Id. at 385.
79
Id. at 381.
76
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185
framed involves the expenditure of Rs. 10 crores.80 As much as Rs. 7
crore will be spent on the infrastructure. It is only Rs. 3 crore that will
be left out to provide for the laboratories.
This shows how infeasible is the implementation of the Act. At
present there are 72 laboratories in India at district, regional or State
level in addition to the four Central Food Laboratories set up by the
Central Government.81 Every State has one or more laboratory
depending on the need. About 12 of the laboratories are under the
control of the local bodies, whereas remaining ones are under the
administrative control of the State Government.
This shows that the number is much below the required one.
Therefore, along with increasing the number of the laboratories,
the Parliamentary Committee on Pesticide Residue in its report gave
following suggestions to the Government with regard to the labs:82
1. To constitute the Task Force of experts to assess the situation
and ensure the appropriate recognition and accreditation (from
NABL)of the laboratories. Two of the labs should have international
recognition.
2. The Indian testing methodologies should not be inferior in any
sense to that of CODEX, WHO, ISO.
3. Testing manuals should be developed for all the parameters and
the products that are covered under the Indian food laws.
4. The labs should be well equipped with the qualified personnel in
all States/UTs.
Tussle between the Ministries: The PFA and other Orders and
legislations and food laws were under the regulation of various
ministries. But it was mainly looked upon by the Ministry of Health
and Family Welfare. One of the objectives of the Act was to converge
such regulation. The question that arises is that under which Ministry it
should now be placed?
After the deliberations it was the Ministry of Food Processing that
was assigned the job of framing the legislation though it was not clear
which ministry would deal with its implementation. Finally, the
80
See financial memorandum, The Food Safety and Standards Bill, 2005.
They are Pune, Kolkota, Gaziabad and Mysore. Source: www.fssai.gov.in (as
visited on Sep. 6, 2009).
82
See supra note 44 at 155.
81
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[Vol. 1 : 1
decision seems to be in favour of the latter but with no good reasons as
the food adulteration is the part of health. It is not very convincing to
assign the task to a ministry which has many jobs already in hand.
Actually the matter is serious enough to create an entirely new
ministry of food adulteration for the implementation.
VI. Conclusion
The adage goes that it is easy to find fault than to appreciate the thing.
I don‘t completely disagree with it, especially in case of the particular
Act, which has yet to come into force. The Act is answer to many
problems that previously existed but the implementation part raises
many speculations.
Among the prominent features is the sanction part which provides
for fine as well as imprisonment. First of all, the evil of food
adulteration being a socio-economic crime generates a lot of wealth
and therefore the perpetrator would easily be able to pay the fine for
which he becomes liable, be it 10 lakh rupees which is the highest.
Secondly, the distribution of the punishments also seems odd. The
manufacturing, storing, selling, distribution or importing of unsafe
food carries the maximum punishment of life imprisonment and 10
lakh rupees if the activities result in death while the maximum penalty
for the death of the consumer is 5 lakh rupees. Thirdly, as the socioeconomic crimes on one hand are considered to be harming the public
to maximum extent and on the other hand they hardly carry the social
stigma that is usually a feature in other forms of offence. The penalties
will hardly solve the purpose. Therefore, along with this there should
be provision for publication of the conviction so that people come to
know about the perpetrator and at the same time they are also excluded
from the syndicate that was working together with him. The extreme
step could be blacklisting the manufacturer or seller, so that he cannot
carry the business anymore.
Power given to the consumer to take the sample is not a new
feature. There are already a set of problems that he faces and that is the
reason why we hardly find such steps being taken. The bigger problem
is to detect or find the difference between a pure and adulterated food.
General public finds it difficult to distinguish between the two.
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187
Therefore, this provision had been of rather no use in the past and
there was no point in its retention. Instead, there should be special
branch of police and inspectorate with wide power of search and
seizure, which should be at strict vigil all the time.
Again there is an appreciable feature of setting the tribunal at
appellate level. Such tribunals are much required for the expeditious
remedy. It would have been better if the same procedure was given for
the court of first instance. There is also need to reconsider the number
of times the person is given the chance of appeal. There is also
provision for the special courts, where the burden of proof should be
shifted from the prosecution. There should be a good coordination
between the investigation team and prosecution because most of the
escapes in past were because of the poor link between the two.
Likewise, there are speculations regarding other features too, such
as the number of inspectors or their qualification and training, etc. The
biggest doubt that arises is the adaptability of the Act that has been
framed by taking features from other countries and especially the
Codex. Are the provisions suited for the Indian conditions especially
with regard to the unorganized sector? For example, section 3(s) says
about ‗Food Safety Management System‘ which means ―adoption of
Good Manufacturing Practices, Good Hygienic Practices, Hazard
Analysis and Critical Control Point‖ for the food business. These terms
are not explained in the definition clause though they are extensively
dealt with in the Codex Alimentarius on Food hygiene Basic Text.
There are high standards laid in the Text while defining the terms as
―food hygiene‖, ―Hazard analysis and critical control point‖.83 The
Codex says about the ‗environmental hygiene‘ where the food
production should not be carried in areas where there is presence of
potentially harmful substances. The equipments used should be
disinfected; there should not be contamination from the soil and air;
the persons working in the establishment should not be infected with
any disease, personal hygiene, air ventilation, lighting, temperature
control etc. With this background we can find very few establishments
that fulfill the requirements if we don‘t consider the multinational set
ups. These guidelines work in the western countries because they have
83
A system that identifies evaluates and controls hazards that are significant for food
safety.
188
[Vol. 1 : 1
a strong enforcement mechanism. There the businessmen have the
means to maintain such guidelines as they are rich. In India the
position of traders is not so good. Moreover they don‘t have the sense
of hygiene.
Therefore, in spite of the best of the legislation, the result seems to
be with no big change in the practice. It is because one cannot change
the mind setup of the people who are illiterate and have little to think
of others. This cannot be done all of a sudden but strict enforcement
machinery is feasible. The need is not of a new legislation but to see
whatever the provisions are, they should be strictly adhered to. At the
same time the need of the hour is not an integrated law (that the Act
actually is) but the integrated approach that includes the contribution
from the public and NGOs84 as well. At the same time taking note of
the spate of the crime, a separate Ministry should be assigned the
enforcement and control.
True that the utopia of a society totally free from socio-economic
crime as food adulteration is mere wishful thinking and impossible to
achieve, but every step forward can be made by multiplying the efforts
both in the legal, extra-legal planes and at the governmental level.
‗Honest Implementation‘ is the key word.
Anubha Dhulia
84
Bejon Mishra, CEO of an NGO named ‗Consumer Voice‘ is doing a commendable
work in the concerned area.

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189
COMMENTS
ACKNOWLEDGING ACCOUNTABILITY?
A Comment on Secretary General, Supreme Court of India v.
Subhash C. Agarwal
HIGHER JUDICIARY1 in India has recently received a lot of
condemnation when Supreme Court of India preferred to appeal
against the judgment of Single Judge of High Court of Delhi 2 in
Secretary General, Supreme Court of India v. Subhash C. Agarwal.3
The impugned judgment upheld an earlier order of Chief Information
Commissioner (CIC),4 whereby CIC directed Central Public
Information Officer (CPIO) of the Supreme Court to furnish
information sought by the respondent in the present case, under the
‗Right to Information Act, 2005‘.5 The information sought was related
to disclosure of assets of judges of the Supreme Court and the high
courts submitted to the Chief Justice of India (CJI) pursuant to the
resolution passed by the full court of the Supreme Court on May 7,
1997.6 Amidst severe criticism by media and public at large, judges of
the Supreme Court of India and of several high courts ‗voluntarily‘
declared their assets to save their honour and dignity and the faith that
the general public repose in them.
This judgment could have been a landmark- making a porthole in
the concrete wall created by the Indian judiciary around itself, but it
stopped just short of breaking the last brick. After giving sermons on
the significance of such a declaration to ensure ‗accountability‘ which
1
Honourable judges of Supreme Court of India and judges of the high courts in
India.
2
The Central Public Information Officer, Supreme Court of India v. Subhash
Chandra Agarwal, W.P. (C) no. 288/2009; judgment pronounced on Sep. 02, 2009.
Hereinafter ‗impugned judgment‘.
3
MANU/DE/0013/2010; LPA no. 501/2009 in the High Court of Delhi. Judgment
pronounced on Jan. 12, 2010.
4
Dated Jan. 6, 2009. See supra note 3 para 5 for important excerpts of the CIC order.
5
See s. 8(1)(j) of Right to Information Act, 2005 (hereinafter the Act).
6
Supra note 3 at para 63. Hereinafter ‗the 1997 resolution‘.
190
[Vol. 1 : 1
is directly proportional to ‗independence‘ of the judiciary,7 they have
granted exemption from disclosure to the contents of such declaration
classifying it as ‗personal information‘8 under the Act, and further
making such disclosure purely an act of volition of the individual
judge.9
But the Apex Court seems to be sceptical about the after-effects of
such disclosure. Apart from the issue of judicial accountability the
decision also re-surfaced the debate of judicial hierarchy. However, the
judgment can also be seen as a ray of light in darkness because
judiciary, for the first time, has acknowledged its accountability
towards the ‗people‘ of the country.
I. Background
The Applicant‘s request (made on November 11, 2007) under the Act
had basically two parts; first, to furnish a copy of the 1997 resolution
which requires every judge of the Supreme Court and the high courts
to make a declaration of his/her assets; and second, the information
regarding compliance of the above resolution. CPIO, in response of the
application informed the applicant that a copy of the resolution would
be furnished on remitting the requisite charges, and added that
information related to declaration of assets was not held by or under
control of the registrar of the Supreme Court, and therefore it could not
be furnished. On appeal by the applicant, the appellate authority
remanded the matter back to the CPIO observing that he should have
disclosed the name of the authority holding the requisite information
and should have referred the application to the latter authority in light
of section 6(3)10 of the Act. After remission CPIO rejected the
application presented afresh holding that the applicant should file
7
See generally, Zemans, Dr. Frances Kahn, ―The Accountable Judge: Guardian of
Judicial Independence‖, 72 S Cal L Rev 625 (1999). See also para 65-84 for detailed
discussion on relation between ‗independence of judiciary‘ and ‗accountability‘.
8
Exempted from disclosure under s. 8(1)(j) of the Act. See infra note 15.
9
Supra note 3 at para 116.
10
S. 6(3) - Where an application is made to a public authority requesting for an
information (i) which is held by another public authority; or (ii) the subject matter of
which is more closely connected with the functions of another public authority; the
public authority, to which such application is made, shall transfer the application…to
that other public authority…
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ILI Law Review
191
applications to the designated authorities of respective high courts to
get information related to asset declaration by their judges. The
applicant then approached the Chief Information Commissioner (CIC)
in an appeal.
The CIC order rejected the contentions of CPIO, Supreme Court11
and reasoned that since the Supreme Court was established by the
Constitution of India, it is a public authority within the meaning of
section 2(h) of the Act. Section 2(e)(i) was referred by CIC to hold that
the CJI is a competent authority, under the Act, empowered to frame
rules under section 28 of the Act to carry out provisions of the Act.
Rule making power under the Act is conferred upon the CJI and the
Supreme Court who cannot disclaim being public authorities.
The impugned judgment upheld the above mentioned order of
CIC. The learned single judge of Delhi High Court framed six points
to decide upon the questions involved in the appeal, viz. (i) Whether
the CJI is a public authority; (ii) Whether the office of the CPIO is
different from that of the CJI, and if yes whether the Act covers the
office of the CJI; (iii) Whether declaration of assets by judges is
‗information‘ under the Act; (iv) Whether the CJI hold them in
‗fiduciary‘ capacity, and therefore they are exempt from disclosure
under section 8(1)(e)12 of the Act; (v) Whether such ‗information‘ is
exempt under section 8(1)(j)13 of the Act; and (vi) Whether the lack of
clarity about details of asset declaration, as well as lack of security
renders asset declaration and its disclosure, unworkable.
He decided positively on the first point and held that office of CJI
is not a distinct ‗public office‘ from the Supreme Court and as ‗CJI‘
his office is covered under the provisions of the Act. Further, he
decided positively on the third point and held that information sought
11
For details see supra note 3 at para 9-10.
S. 8(1) - Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen… (e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that the larger public interest
warrants the disclosure of such information.
13
S. 8(1) - Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen… (j) information which relates to personal
information the disclosure of which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the State Public Information Officer
or the appellate authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information…
12
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[Vol. 1 : 1
by the applicant cannot be exempted under sections 8(1)(e) or (j) of the
Act. He directed for devising a proper mechanism to tackle with the
problems related to the sixth point. However, while deciding on the
fifth point he added that the contents of any such declaration is liable
to be exempted from disclosure as ‗personal information‘ under
section 8(1)(j) of the Act.
In the present case, points i, ii and vi of the impugned judgment
were not in question and accordingly the division bench of the Delhi
High Court framed three issues for their consideration, which are as
follows1. Whether the respondent had any ‗right to information‘ under
section 2 (j) of the Act in respect of the information regarding
making of declarations by judges of the Supreme Court pursuant to
the 1997 resolution?
2. If yes, whether CJI held the ‗information in his ‗fiduciary‘
capacity within the meaning of the expression used in section
8(1)(e) of the Act?
3. Whether the ‗information‘ about the declaration of assets by
the judges of the Supreme Court is exempt from disclosure under
the provision of section 8(1)(j) of the Act?
[
II. The Judgment and its Repercussions
Deciding the first issue, court dealt with two aspects; first, establishing
what is ‗information held by a public authority‘, and second,
establishing that the nature of resolutions passed in 1997 and 199914
are binding on the members of higher judiciary.
Court emphasized the importance of ‗information‘ and
‗knowledge‘, and to establish that ‗Right to Information‘ is a
universally established principle cited relevant provisions of several
international agreements.15 Further, the court reiterated that ‗Right to
Know‘ is a necessary concomitant of the fundamental freedom of
‗Speech and Expression‘ enshrined in article 19(1)(a) of the
14
Resolution adopted in the Chief Justices conference on ‗Restatement of Values of
Judicial Life (Code of Conduct)‘, held in the Supreme Court premises in Dec. 1999.
15
See supra note 3 at para 31-33.
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ILI Law Review
193
Constitution of India,16 and cited in support several cases like Benett
Coleman v. Union of India,17 State of UP v. Raj Narain,18 Association
of Democratic Reforms v. Union of India,19 and PUCL v. Union of
India,20 and held that ―responsibility of officials to explain and to
justify their acts is the chief safeguard against oppression and
corruption‖.21
While deciding on the nature of the said resolutions, court found
that the decision involved, to a great extent, the examination of role of
judiciary in a democracy. The court cited, Justice Michael Kirby
(former judge, Australian High Court) who said, ―[A] judge without
independence is a charade wrapped in a farce inside oppression‖.22
Court further established the point by referring to the Apex Court
decision in SC AOR Association v. Union of India.23 Further the court
tried to establish that greatest strength of judiciary is the faith people
repose in it and cited K.Veeraswamy v. Union of India,24 S.P. Gupta v.
Union of India25 and C. Ravichandran Iyer v. Justice A.M.
Bhattachrjee26 to support the argument. Finally it was held that the
1997 and the 1999 resolutions are meant to be adhered by; therefore
they have a binding effect. Therefore the petitioner has the ‗Right to
Information‘ in respect of information regarding making of
declarations by the judges of the Supreme Court.
Bhagwati J. once said, ―[C]oncept of independence of judiciary is
not limited to independence from executive pressure, it is a much
wider concept… It has many dimensions, namely, fearlessness from
other power centres, economic or political, and freedom from
prejudices acquired and nourished by the class to which the judges
belong‖.27 Further, the Supreme Court itself had emphasized on one
16
For detailed discussion see supra note 4 at para 36-42.
AIR 1973 SC 106.
18
AIR 1975 SC 515.
19
AIR 2001 Del. 126.
20
(2002) 5 SCC 294.
21
22
Id. at para 67; for details see
http://www/hcourt.gov.au/speeches/kirbyj/kirbyj_abahk.htm.
23
(1993) 4 SCC 441.
24
(1991) 3 SCC 655.
25
(1981) Supp. SCC 1987.
26
(1995) 5 SCC 457.
27
17
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[Vol. 1 : 1
occasion that it is an inalienable duty of judges to maintain highest
possible standards of conduct, both on and off their official duty.28
This proposition was reiterated in Justice Bhattcharjee case.29
The court rightly pointed that if the judiciary fails to assume
responsibility for ensuring high standards of ethical conduct expected
by its members, public opinion and political expediency may lead the
other two branches of government to intervene. The inevitable
consequence of such an action will be a compromise on the principle
of ‗independence of judiciary‘ itself.30 Therefore, judiciary as an
institution has to regulate its conduct and ethical standards by such inhouse mechanisms to ensure their independence.
Further more, the double standards laid down in respect of
accountability of separate classes of judiciary, namely, lower judiciary
and the higher judiciary are not justifiable. For example, service rules
for the lower judiciary mandates disclosure of assets to ensure
accountability, but there is no such compulsion for the judges sitting
on higher pedestal, where there should have been stricter
accountability requirements.
Deciding on the second issue, court rejected the contention of the
appellant alleging that since the resolution itself provides for
‗confidentiality‘ as a condition to any such declaration, therefore the
CJI holds such information under a ‗fiduciary‘ capacity, which
exempts it from disclosure under section 8(1)(e) of the Act.
A reference made to section 22 of the Act was enough to reject any
such contention. The section provides that this Act has an overriding
effect on all other legislations (including the Official Secrets Act);
therefore merely because a document contains a condition of
confidentiality, it cannot be exempted from disclosure under section
8(1)(e) of the Act.31 Further more it is very well argued that CJI cannot
be fiduciary vis-à-vis judges of the Supreme Court as judges of the
28
Supra note 26. In para 23 of this case it is submitted that, ―[J]udges of higher
echelons, should not be mere men of clay with all the frailties and foibles, human
feelings and weak character which may be found in other walks of life. They should
be men of fighting faith with tough fibre not susceptible to any pressure, economic,
political or any sort‖.
30
See supra note 3 at para 87.
31
29
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195
Supreme Court hold independent office, and there is no hierarchy. The
document is open for observation of successive CJIs and hence cannot
be exempted from disclosure under section 8(1)(e) of the Act.
While deciding on the third issue the court dealt with the inherent
confrontation between two of the fundamental rights enshrined in the
constitution of India. The ‗Right to Information‘ is derived from the
freedom of speech and expression under article 19(1)(a) and the ‗Right
to Privacy‘ derives its authority from article 21, i.e. right to life and
liberty.32 It was rightly held by the court that considering this very
hitch, legislature enacted section 8(1)(j) of the Act which exempts
‗personal information‘ from disclosure under the Act respecting the
‗Right to Privacy‘ of public officials. The court finally decided that the
information sought by the applicant does not justify or warrant
protection under section 8(1)(j) of the Act, inasmuch it required the
furnishing of the information related to compliance of 1997 resolution,
but the details of any such declaration will be protected under section
8(1)(j) of the Act as ‗personal information‘.
This decision showed that higher judiciary could only preach
accountability to other organs of state, viz. legislature and executive
(sometimes it includes lower judiciary also), but when it comes to
following their own preaching they are fearful. They always comment
on the rampant corruption in other walks of life, but when someone
points a finger towards them they become irate. The Apex Court has
itself mentioned in several cases that society‘s demand for honesty of a
judge is exacting and absolute and the standards of judicial behaviour,
both on and off the bench, are normally extremely high, therefore a
judge must keep himself absolutely above suspicion.33 But when the
time came to follow in practice these theoretical ethical standards, they
withdrew from their ‗on paper‘ commitment of accountability.
Further more an important point not elaborated much in the
decision is that the exemptions under sub-sections (e) and (j) of section
8 of the Act are not absolute, and if the ‗authority‘ is satisfied that
disclosure is in sufficient public interest, the bar can be lifted after
duly notifying and hearing the person to which the information is
32
33
196
[Vol. 1 : 1
related.34 While discussing this point the court ignored its earlier
deliberations on requirement of enhanced standard of accountability
and responsibility for judges and narrowly interpreted ‗public interest‘
to declare that details contained in any disclosure of asset is protected
as personal information under the Act.
The apprehension and panic shown by the judges, when they were
asked to disclose their assets, shattered the confidence of a common
man reposed in the impartiality and honesty of the judiciary. Instead of
keeping themselves absolutely above suspicion, the act of opposing
disclosure of assets brought them into the centre of suspicion. Actual
public interest lies in restoring faith of general public in the judiciary
and this interest is important and sufficient enough to disclose
information which is otherwise protected under section 8(1)(j) of the
Act.
Justice J.B. Thomas says, ―[C]itizens cannot be sure that they or
their fortunes will not some day depend upon our judgment. They will
not wish such power to be reposed in anyone whose honesty, ability,
or personal standards are questionable‖.35 The necessary consequence
of opposition to openness, which is a necessary concomitant of
democracy, will seriously undermine the faith reposed by general
public in the honesty, impartiality and integrity of the judicial system
of the country. The ‗common man‘ usually does not trust the
legislature and remain suspicious of the acts of the executive, but it
always trusts the judiciary. The sole reason of this blind faith is the
self-regulation and abstinence from extraneous influences exercised by
the judiciary, and that image is slowly but surely dampening.
If the judiciary is to save its honour and independence it needs to
act on its own without waiting for the legislature to intervene to enact
a law for disclosure of assets by the judges. The legislature is all set to
bring an enactment on disclosure of assets by judges, which is already
in pipeline.36 Though the newly introduced Bill was taken back for
34
Thomas, J.B., Judicial Ethics in Australia 8 (LBC Information Services, Sydney,
2nd edn., 1988).
36
The Judges (Declaration of Assets and Liabilities) Bill, 2009 is presented before
the Rajya-Sabha on Jul. 29, 2009, available at:
http://www.judicialreforms.org/files/Judges%20(Declaration%20of%20Assets%20an
d%20 Liabilities)%20Bill%202009.pdf.
35
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reconsideration, the reasons for doing so were not in favour of the
principle of ‗independence of judiciary.37 It is the right time for the
judiciary to introspect and save its independence, which it itself has
established as part of the basic structure of the Constitution of India.
Avijit Mani Tripathi*
37
On Aug. 3, 2009, several members of the upper house, cutting across party
affiliations, joined hands to force the government to defer the introduction of the Bill
on the ground that the provisions are too lenient as the Bill exempted judges from
making public their assets and provided immunity against an inquiry. For details see
http://timesofindia.indiatimes.com/india/Govt-puts-off-judges-assetsbill/articleshow/4854197\cms.
* LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.
198
Comment: Shakson Belthissor v. State of Kerala
[Vol. 1 : 1
A Comment on Shakson Belthissor v. State of Kerala and
Another1
THERE ARE times where the honourable Supreme Court remained
complacent of the errors committed by them because of the
hierarchical nature of the Indian judicial administration. As there is no
one above the diktats of honourable Supreme Court the incalculable
harm done by the Apex Court lingers in the heart of the common man
haunting like witches‘ prophecies. It is the doctrine of responsibility
which braves the scholars to draw the attention of the honourable
Supreme Court to rectify the errors committed. Lord Denning opines
that certain lawyers think that the doctrine of Stare Decisis means:
―Stand by your decisions and the decisions of your predecessors,
however wrong they are and whatever injustice they inflict‖. 2 The
same analogy applies to the higher courts too. Unmindful of their
follies the Supreme Court have been rigidly sticking on to the
precedent pattern of application. He further states that if the law is to
develop and not to stagnate; it is necessity to create new precedents so
as to meet new situations. Finally, he concludes his lecture by stating
that the fundamental principle of the law is to govern people; and,
whilst adhering firmly to those principles, it should overrule particular
precedents that it finds to be at variance therewith.3
The facts of the case are that the appellant, who was working in
Gulf, got married to the complainant in 1997. After the marriage he
stayed in the house of the complainant and after his leave got over the
appellant returned to the Gulf. Thereafter, for 2-3 months, the
appellant sent money for the expenses in the house, talked to her over
phone, sent letters from Saudi Arabia and also behaved very
affectionately with her.
Subsequently, the appellant stopped sending money from Saudi
Arabia for her expenses and also stopped sending letters to her, as his
family allegedly started spreading wrong information regarding the
1
2009 INDLAW SC 851.
Lord Denning, ―From Precedent To Precedent‖, The Romanes Lecture 1, available
at: http://www.lawharva
rd.edu/programs/ames_foundation/BLHC07/swain%20BLHC20071FINAL.pdf.
3
Id. at 34.
2
2010]
ILI Law Review
199
conduct of the respondent No. 2 (the complainant). A First Information
Report (FIR) was registered and on completion of the investigation by
the police, a charge sheet was submitted by the police alleging, inter
alia, that in the investigation it is established that it is only the
appellant, who has committed the offence. It was also stated in the said
charge sheet that investigation as per Section 498-A of the Indian
Penal Code, 1860 (in short "the IPC") is being continued after
dropping the provision of Section 34 IPC. The appellant went before
the High Court of Kerala praying for quashing of both the FIR as also
the charge sheet on the ground that no case for prosecution under
S.498-A IPC is made out against him. The high court, however,
without issuing any notice on the said petition rejected the petition
holding that by no stretch of imagination it can be said that the FIR
and the charge sheet do not disclose the commission of the offence
alleged against the appellant. Interestingly, in appeal the Supreme
Court took a ‗U-turn‘; allowing the appeal they quashed the
proceedings initiated against the appellant under S. 498-A of the IPC.
This judgment has inherent fallacies. At the outset, the
interpretation of s. 498-A by the Supreme Court is too narrow and fails
in the objective it sought to achieve. Second fallacy is bypassing the
trial stage process; taking lightly, the role of the trial court.
Let us first of all examine the provision in detail:
S. 498-A of the IPC- Husband or relative of husband of a
woman subjecting her to cruelty- Whoever, being the husband or the
relative of the husband of woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means –
(a) Any willful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the
woman; or
(b) Harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such
demand.
200
[Vol. 1 : 1
As we are concerned with (a) it would be wise on our part to confine
ourselves with that part only.
The following are the essential ingredients of Section 498- A IPC:
(i) That there was a married woman;
(ii) That such woman was subjected to cruelty;
(iii) That such cruelty consisted of any willful conduct of such
nature as was likely to drive such woman - to commit suicide, or to
cause grave injury or danger to her life, limb or health, whether
mental or physical; harassment of such woman where such
harassment was - with a view to coercing such woman or any
person related to her to meet any unlawful demand for any
property or valuable security, or on account of failure by such
woman, or any person related to her to meet the unlawful demand
in able and the woman was subjected to such cruelty by - the
husband of that woman; or any relative of the husband of that
woman.
Three specific instances have been enumerated to attract the
application of explanation (a) which involves three specific situations
viz., (i) to drive the woman to commit suicide or (ii) to cause grave
injury or (iii) danger to life, limb or health, both mental and physical,
and thus involving a physical torture or atrocity.
In effect causa causans to attract s. 498-A of IPC is that there
needs to be substantial apprehension to life, limb or health, both
mental and physical and thus involving a physical torture or atrocity.
At the outset the factual score of the present case may appear that there
is no such immediate danger but if the Supreme Court would have
scanned the case with a little introspection of mind, they would have
reached to the conclusion that it involves danger to life by mentally
pressurizing the victim. First of all, the husband stopped sending
money for running the household without any reason, secondly, she
was denied entry to the house that was bought from the dower given at
the time of marriage, and thirdly, there were allegations as to her
character. In a nutshell, there was clear-cut case depriving her from
fundamental right of a dignified life. To comprehend the niceties of
cruelty jurisprudence it would be prudent on our part to look into
explanation provided by the honourable Supreme Court in Samar
2010]
ILI Law Review
201
Ghosh v. Jaya Ghosh4 in para 55 referred to Shobha Rani's case5
observed as under:
"Each case may be different. We deal with the conduct of
human beings who are no generally similar. Among the human
beings there is no limit to the kind of conduct, which may
constitute cruelty. New type of cruelty may crop up in any case
depending upon the human behavior, capacity or incapability to
tolerate the conduct complained of. Such is the wonderful (sic)
realm of cruelty."
'Cruelty' is an offence basically falling under the conduct crimes.
Unlike section 304-B of the IPC where death of the bride within seven
years of the marriage would be presumed as 'dowry death', there is no
such period provided in the statute during which an act mentioned in
the section is assumed as ‗cruelty‘ under section 498-A IPC. The
husband or his relative would be liable for subjecting the woman to
'cruelty' any time after the marriage. The statute itself delineates that
cruelty would constitute not only physical acts but also includes
mental cruelty in its purview. The mental aspect is Janus faced
structure which needs cautious appreciation of Indian realities. Several
acts considered separately in isolation may be trivial and not
pernicious but when considered cumulatively they might well come
within the description of cruelty.
Nevertheless, the honourable Supreme Court deliberately or
unmindfully failed to follow the best practice of procedure. To call a
trial as ‗fair trial‘ the codified procedure has to be operated in tandem
of substantive and adjective law. If the trial is bypassed the
repercussions of the same would defeat the very process of criminal
judicial administration and in fact could be called as injudicious
administration. Trial stage is the best stage to cull out the relevant and
irrelevant evidence. The trial judge who is trained to segregate the
relevant and irrelevant evidence would become functus officio if the
higher courts quash the FIR without providing the opportunity of the
witnesses especially the victim who has undergone an ordeal of pain
would not be given the fair trial. Trial stage is a unique stage in
criminal judicial administration. It is in this stage that the trial court
4
5
(2007) 4 SCC 511.
AIR 1988 SC 121.
202
[Vol. 1 : 1
would test the veracity of the allegations made, test the credibility of
the investigating apparatus, similar to the common man‘s parlance,
segregation of milk into milk and water into water. Such is the
importance of the trial stage; the final product of this stage is
elicitation of truth from the facts.
It is only after the trial stage the veracity of the facts would be
shoe-horned, without undergoing the trial it would not be wise on the
part of higher courts to discard the trial court‘s version. As a student of
law, we are taught that the Supreme Court and High Courts would not
meddle with the trial stage process. The reason for non-interference
has been evolved out of the wisdom of long practice. The criminal
judicial administration we have today has undergone rough deal of
continuous change for centuries of practice that has provided with the
best practice tested by time, such a practice should not likely be
disturbed. The honourable Supreme Court in Shakson Belthissor case6
at para 9 states: The said power is exercised by the court to prevent
abuse of the process of law and court but such a power could be
exercised only when the complaint filed by the complainant or the
charge sheet filed by the police did not disclose any offence or when
the said complaint is found to be frivolous, vexatious or oppressive.
The honourable Supreme Court itself is aware such power to
bypass the trial stage process is to be exercised cautiously and in
situation warrants interference in emergency to meet the ends of
justice. The facts of the case don‘t warrant such emergent
circumstance, however the honourable Supreme Court meddled with
the trial stage the reasons of interference were not recorded in the
given judgment. By applying my common sense I tried to trace the
elements of reasoning in the judgment but to my inability, failed
desperately.
The honourable Supreme Court in the present case exhibits
unprecedented ambivalent attitude. On the one hand it admits in para
15 referring to Pepsi Foods Limited and Another v. Special Judicial
Magistrate and Others:7
“The magistrate has to carefully scrutinize the evidence bought on
record and may even himself put questions to the complainant and his
6
7
Supra note 1.
AIR 1998 SC 128.
2010]
ILI Law Review
203
witnesses to elicit answers to find out the truthfulness of the allegation
or otherwise and then examine if any offence is prima facie committed
by all or any of the accused.”
The ambivalence of the court is self-evident from the above
description; it acknowledges the trial court, which is distinct from
Apex and High courts, the methodology of reaching the truth is more
foolproof than the higher ones. The trial courts are not mere lower
courts simpliciter, in fact they are the basements of Judicial
Administration, and without the basement higher courts cannot
function suo motu. To put it starkly, the trial courts are the real courts
for common man, when majority of the population cannot afford to
reach the higher courts due to economic constraints; it is totally callous
disregard of the higher courts to conspicuously refuse to fore think the
Indian reality. The act of the honourable Supreme Court would indeed
deny fair trial and would appreciate the litigants to flock to the Apex
Court to bypass the trial procedure. This case in my eyes has set a
wrong precedent to future cases; it has not only defeated the very
justice delivery system but has directly caused a casualty to the rule of
law.
The then honourable justice P.B. Mukherji (Calcutta High Court)
opined8 in his lecture:
“The rule of law in order to be truly effective must therefore be
operated not only in the fields of substance but also in the fields
of procedure.”
Further, the honourable justice P.B. Mukherjee refers that ‗justice
according to law‘ is sometimes used as a doctrine to justify application
of unrestricted powers outside the pale of the rule of law, the ordinary
courts and the process of law.9 That is what exactly happened in this
case.
Roscoe Pound in his Green Foundation Lectures states that:
“The real foe of absolutism is law. It presupposes a life,
measured by reason, a legal order measured by reason, and a
Judicial Process carried on by applying a reasoned technique
8
P.B. Mukherjee, The Critical Problems of the Indian Constitution, Chimanlal
Setalvad Lectures 185 (University of Bombay, Bombay, 1967).
9
Ibid.
204
[Vol. 1 : 1
to experience developed by reason and reason tested by
experience.”10
In a nutshell, the case have not acquired attention of the
lawyers/scholars/academician due to complacency in seeing the
judgment from the point of view of the accused while the victims stand
is nowhere in the eyes of the honourable Supreme Court. The object of
inserting S.498-A is to bring about deterrence in the minds of malechauvinistic society; the very object gets watered down due to the
narrow stand taken by the honourable Supreme Court. It is at this
juncture apposite to quotes Hobbes‘s famous dictum:
“An unjust law may be administered justly, and a just law
unjustly”
The above undoubtedly portrays that it is in the hands of
administrators who can bring forth justice even from unjust laws. The
present case also signifies the decline of judicial reasoning, the learned
justice have unsuccessfully conglomerated the bits and pieces of
various irrelevant judgments without substantiating the reason for
quashing the FIR. The reason that he adopted speaks for itself, as the
learned justice never justified the emergence of interference at the trial
stage. Since, the ivory tower was adorned by two judges nowhere we
could find the concurrence of brethren learned justice whether his
concurrence is part and parcel of brother justice. By no stretch of
imagination we could draw any inference about the judicial reasoning
concurring with other judge.
It would be appropriate to conclude the shorter version of my
comment from the wise words of V.R.Krishna Iyer:
“Law without justice is blind; justice without law is lame; law
geared to justice is order.”
V. Elanchezhiyan
10

Id at 186.
LL.M., IV Semester (Two-Year Course), Indian Law Institute, New Delhi.

Vol.1 - Indian Law Institute

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