Volume 1, Number I, 2017

Contemporary
Law Review
Vijender Kumar & Vidhi Singh - Divorce by Mutual Consent among
Hindus: Law, Practice and Procedure
Sreenivasulu NS & E.Vijaya Kumar - Law Relating to Biotechnology:
Issues and Challenges
Anand Pawar & Deepti Singla - DNA Fingerprinting: An Analysis of
Prevailing Scenario
Naresh Kumar Vats & Urmil - Environmental Justice in India and role of
National Green Tribunal
Manish Yadav - Regulation in Electricity Sector and Protection of Consumer
Rights: A Critical Analysis
Shaik Nazim Ahmed Shafi - Public-Private Partnership: A focus on the
development of stadiums in India
CLR

Anindhya Tiwari - International Tax Treaties and Developing Indian

Economy: An Analysis
Shane Jessee Ralston - Can Pragmatists be Constitutionalists? Dewey,
Jefferson and the Experimental Constitution
Shreya Mishra -The rising failure of State Sovereignty in contemporary
International Law
Madhukar Sharma & Sopan B Sindhe - Rhetoric and Poetics in Politics and
Justice
Debasree Debnath - Contemporary approaches towards restitution of
conjugal rights : A Socio-legal study
Rashmi Patowary - Tribal Customary Laws vis-à-vis women's status in
Northeast India: Combating climate change
Saptarishi Dash & Megha Purohit - International Criminal Court and
United Nations Security Council : Deciphering the power politics
STUDENT SECTION
Niharika Behl & Gargi Singh - Obscenity and freedom of speech and
expression
CASE COMMENT
V.P. Tiwari - State of Tamil Nadu v. K. Balu
Ragni P. Khubalkar - The Chancellor, Masters & Scholars of the University
of Oxford v. Rameshwari Photocopy Services
 Contemporary Law Review
Volume 1, Number I 2017

Hon'ble Shri Justice S.A. Bobde Prof. (Dr.) Vijender Kumar

Judge, Supreme Court of India & Vice-Chancellor
Chancellor, MNLU, Nagpur MNLU, Nagpur
Chief Patron Patron

Editorial Advisory Board Editorial Board

Hon'ble Dr. Justice D.Y. Chandrachud
Judge, Supreme Court of India Editor
Shri P. S. Narsimha Prof. (Dr.) Naresh Kumar Vats
Additional Solicitor General Professor of Law
Prof. (Dr.) Ranbir Singh
Vice-Chancellor, NLU, Delhi Co-Editors
Prof. (Dr.) R. Venkata Rao Prof. Ramesh Kumar Chamarti
Vice-Chancellor, NLSIU, Bangalore OSD (Academics)
Prof. (Dr.) John Phillips Dr. Anirban Chakraborty
King's College London,UK Associate Professor of Law
Prof. (Dr.) Manoj Kumar Sinha Dr. Manish Yadav
Director-ILI, New Delhi Assistant Professor of Law
Prof. (Dr.) Sital Kalantry Dr. Ragini P. Khubalkar
Cornell Law School, NY, USA Assistant Professor of Law

Note to Contributors: Manuscripts, Editorial correspondence and Style-sheet

requisitions should be addressed to the Editor, Contemporary Law Review (CLR),
The Maharashtra National Law University Nagpur, Judicial Officers' Training
Institute (JOTI), Civil Lines, C.P. Club Road, Nagpur-440001, Maharashtra,
India, for soft material use E-mail : [email protected].

Price Rs. 300/- (Rupees three hundred) or US $ 50 (Fifty)

Mode of Citation : 1CLR2017<Page No.>

Copyright © 2017 Contemporary Law Review (CLR). Any reproduction and

publication of the material from the text without the prior permission of the
publisher is punishable under the Copyright Law.

Disclamer: The views expressed by the contributors are personal and do

not in any way represent the opinion of the University.
 Contemporary
Law Review
Volume 1, Number I 2017
 TABLE OF CONTENTS

Message from Chief Patron iii

Message from Patron v

Editorial vii

Divorce by Mutual Consent among Hindus : Vijender Kumar & 01

Law, Practice and Procedure Vidhi Singh

Law Relating to Biotechnology: Issues and Sreenivasulu NS & 18

Challenges E.Vijaya Kumar

DNA Fingerprinting : An Analysis of Anand Pawar & 28

Prevailing Scenario Deepti Singla

Environmental Justice in India and Role of Naresh Kumar Vats & 34

National Green Tribunal Urmil

Regulation in Electricity Sector and Protection Manish Yadav 51

of Consumer Rights : A Critical Analysis

Public-Private Partnership : A focus on the Shaik Nazim Ahmed 69

Development of Stadiums in India Shafi

International Tax Treaties and Developing Anindhya Tiwari 78

Indian Economy : An Analysis

Can Pragmatists be Constitutionalists? Shane Jessee Ralston 93

Dewey, Jefferson and the Experimental
Constitution

The Rising Failure of State Sovereignty in Shreya Mishra 114

Contemporary International Law

Rhetoric and Poetics in Politics and Justice Madhukar Sharma & 127
Sopan B. Sindhe
Contemporary Approaches Towards Debasree Debnath 136
Restitution of Conjugal Rights : A Socio-legal
study

Tribal Customary Laws vis-à-vis Women’s Rashmi Patowary 156

status in Northeast India : Combating Climate
Change

i
International Criminal Court and United Saptarishi Dash & 164
Nations Security Council : Deciphering the Megha Purohit
Power Politics

STUDENT SECTION

Obscenity and Freedom of Speech and Niharika Behl & 177

Expression Gargi Singh

CASE COMMENT

State of Tamil Nadu v. K. Balu V.P. Tiwari 186

The Chancellor, Masters & Scholars of the Ragni P.Khubalkar 195

University of Oxford v. Rameshwari
Photocopy Services

ii
MESSAGE FROM THE CHIEF PATRON

iii
iv
 MESSAGE FROM THE PATRON

It gives me immense pleasure in bringing to you the maiden issue of the

Contemporary Law Review (CLR), a peer reviewed Journal of the
University. The Journal is harbinger to promote and to advocate for critical
and quality research under the aegis of Maharashtra National Law University,
Nagpur.
The first volume containing first issue of the faculty run peer reviewed
Journal is in the hands of its readers, which is the outcome of a competent and
committed team of faculty colleagues who worked tirelessly and brought this
Journal within a short span of time. The quality of research papers published
in the Journal bears testimony to the commitment of the Journal to explore
new horizons of research and learning. The present issue contains the
contribution of research papers from faculty members from within the country
and abroad, advocates, research scholars and law students from all parts of the
country.
Recently, the University Grants Commission, New Delhi has taken the
initiative to provide a comprehensive list of Journals. To get academic benefit
of qualitative publication, one must published his/her research paper in the
Journal enlisted in the list of Journals approved and provided by the UGC.
Further, any educational institution is known by its professionally competent,
technically sound and socially sensitive graduating students, amount of
qualitative research done by its faculty members and publication of journals,
books and periodicals. Therefore, it has become necessary for the MNLU,
Nagpur to produce qualitative publications. As qualitative and critical legal
research constitute as one of the most important mandates of the leading Law
Schools throughout the globe. Research findings enhance the proficiency and
provide an environment which is conducive for teaching and learning. Far
reaching changes are taking place in the fields of legal profession which
includes techno-legal education, socio-legal education, justice education and
policy reforms. The publication of the Contemporary Law Review (CLR)
shall make a definite impact on academic review of government policy,
legislative enactments and judicial pronouncements and shall provide a lot of
information to the prospective research scholars for their further socio-legal
research. Therefore, the Journal is an attempt to provide an intellectual
platform for contemporary and philosophical fraternity across the globe. I
hope the readers would find the present issue of Contemporary Law Review

v
(CLR) interesting and a good basis of information. Our reader’s response will
always be a source of inspiration for the editorial team of the Contemporary
Law Review to improve further the quality of our research publications.
I wish to put on record the professional advice and guidance provided by
Hon’ble Members of the Editorial Advisory Board of the Journal to the
Editorial Team. I also wish to thank each and every member of the Editorial
Team of Faculty colleagues for advertising, consolidation and editing all the
research papers published in the maiden issue of the Journal. I feel indebted
to all the contributors of Contemporary Law Review (CLR) for their valuable
and intellectual contribution. I am sure they would be continuing their support
in regular running of the Journal in future as well.
I hope the Journal would be a valuable addition to the contemporary
research world in a variety of ways. The information published in the Journal
would be significant source of future research and it would be useful for
teachers, advocates, judicial officers, research scholars and the law students.
I wish to convey my best wishes to editorial team, contributors, faculty
members and students of MNLU, Nagpur for their finest academic endeavours
and hope to see success of the Journal in the hands of its readers.

(Vijender Kumar)

vi
 EDITORIAL
The Maiden Issue of Volume 1 Number I, 2017 of Contemporary Law
Review is a thoroughly erudite compilation of scholarly research covering the
broad range of ideas in the domain of Family Law, Intellectual Property Law,
Environmental Law, Energy Law, Constitutional Law, Business Law,
International Law, Human Rights, Information Technology and Socio-legal
issues. All these research articles deal with issues with far-reaching socio-
legal implications.
Prof. (Dr.) Vijender Kumar and Ms. Vidhi Singh through their research
discussed on divorce by mutual consent and use of ICT keeping in mind the
peaceful resolution and to maintain the privacy of the parties under Hindu law
asserting certain objectives to be accomplished. The paper provides with the
insight of provisions of divorce by mutual consent under various other
matrimonial laws in India. They also highlighted that the divorce by mutual
consent which came into existence after the fault theory. Now, it seems that
the society has civilised and lawmakers feel that the married couple not to be
kept together in dead wedlock just by using the law as a tool and their
happiness, comfort and well-being must be respected by law otherwise
marriage institution per se may lose its own sanctity.
Prof. (Dr.) Sreenivasulu N.S. and Prof. (Dr.) E.Vijaya Kumar have
drawn the inference through their research paper titled “Law relating to
Biotechnology: Issues and Challenges” that the biotechnology sector is facing
the large number of legal issues and challenges. The regulation of
biotechnology is done from different perspectives and the law in this regard
will have multiple dimensions while addressing number of concerns. The law
relating to biotechnology have to address a wide range of issues concerning
trade, environmental, intellectual property, consumer protection, and human
rights, ethical, social and religious issues both at international and national
level.
Prof. (Dr.) Anand Pawar and Ms. Deepti Singla has drawn conclusion in
their research paper that it is necessary to incorporate DNA technology in an
Indian legislation or to draft an exclusive independent enactment on the use
of DNA technology in Indian Courts, so that this technique could be
effectively used as valuable in the administration of Justice.
Prof. (Dr.) Naresh Kumar Vats and Ms. Urmil have drawn the inference
from various provision of National Green Tribunal Act, 2010 throgh their
research paper in critical manner and considered that The NGT is the most
consistent and progressive environmental authority in India. They have also
suggested to create more zonal branches of sitting of NGT and continue to
play its proactive roles where the act are detrimental to the environment. They
have also support to extend the five year limit for adjudication of disputes
under Section 14(3) of NGT Act for claim of damages in addition to inclusion

vii
of academician and serior advocates as member thereof, having ground root
experience and conversent with practical difficulties.
Dr. Manish Yadav through his research paper discussed the various
provisions for consumer protection provided under the existing electricity
laws and The Consumer Protection Act 1986 with the help of various cases.
He also reviewed the various regulations of State Regulators and Electricity
Policy in a critical manner. Dr. Shaik Nazim Ahmed Shafi has drawn the
inference through his research paper that a National Policy on Infrastructure
on Stadiums is the need of the hour. Greenfield and Brownfield Infrastructure
Policies on Stadiums must be initiated in at par with other existing
Infrastructure Policies of various sectors in India.
Mr. Anindhya Tiwari highlighted the various aspects of double taxation
avoidance agreements and its benefit to the national economy in his research
paper. It provides the conceptual framework of transfer pricing, Treaty
shopping Permanent Establishment and comprehensive international
corporate and individual taxation. Dr. Shane Jesse Ralston in research paper
concluded with a final evaluation of the extent to which Deweyan
experimentalism can accommodate constitutionalism in its various forms.
Ms. Shreya Mishra has discussed about the emergence of ‘Fragile States’
and ‘Failed States’ and their impact on the sovereignty of the States. She also
discussed the present geopolitical situation in Iraq, Ukraine, Somalia, Nigeria
and similar States in order to gauge whether the four characteristic features
elucidated in the Montevideo Convention of 1933 are sufficient to identify a
State.
Dr. Madhukar Sharma and Mr. Sopane Sindhe have discussed about the
concept of Rhetoric and relate it with justice and politics. They drawn the
conclusion that all socio-political, literary discourse or day to day
communication has the elements of Rhetoric- logos, pathos, and ethos used
as modes of convincing. In Indian Parliament, judiciary and politics, there has
been a versatile experience of the use of rhetoric. Ms. Debasree Debnath in
her research paper analysed that the active role played by the Indian Judiciary
in identifying and highlighting the problems of the issues related to the
restitution of conjugal rights.
Ms. Rashmi Potwary stated in her research paper that the customary laws
and practices of the northeast India will have to be filtered and moulded to
ensure that women in the region are made independent, self-reliant and self-
sufficient in all aspects. It is only then, that they shall be able to effectively
contribute towards steps for coping climate change. Mr. Saptarishi Dash and
Ms. Megha Purohit reflected that the ICC is expected to be the primary
mechanism for the delivery of international criminal justice. But its
functioning is riddled with power-politics. This is especially true in the
context of its intricate relationship with the United Nations Security Council.
Ms. Niharika and Ms. Gargi in their research paper explained that how
Indian courts have interpreted the term Obscene and what test is applied

viii
before declaring a piece as obscene. They concluded that there is no particular
statute governing the same which can throw a light on the ambiguity that
exists in this sphere. There’s a dire need for the legislature to enact a law
which entirely focuses on obscenity in order to eliminate the confusion and
unreasonableness that exists.
Dr.V.P. Tiwari has also critically analysed the decision in the case of
State of Tamilnadu v. K. Balu that this judgement of the Apex Court is one of
the best judgements pronounced in recent times and would go a long way in
saving millions of lives from accidental deaths on highways. Dr. Ragni P.
Khubalkar anaysed the judgment in the case of the Chancellor, Masters and
Scholars of the University of Oxford v. Rameshwari Photocopy services that
decision will prove to be the biggest landmarks in Intellectual Property Rights
jurisprudence. Significantly, it spells out that private rights will have to yield
to larger social goals which have to be interpreted widely.
The issue aligns with our aim of engaging scholarly exchange of ideas
for furthering the cause of contributing to the existing body of research in
academia and all the research papers are based on the studies and analysis of
contributors in which they have made definite recommendations.
We extend our gratitude to the all the contributors for their well-
researched articles and acknowledge their contribution in furthering the goal
of bringing about legal and judicial reforms through their scholarship.

(Editorial Committee)

ix
x
 DIVORCE BY MUTUAL CONSENT AMONG HINDUS :
LAW, PRACTICE AND PROCEDURE
Vijender Kumar & Vidhi Singh
ABSTRACT
Divorce has emerged as a very prospective outcome of
marriage, questioning the truth of saying that marriages are
‘made in heaven’. In modern era with the advancement of
education, information and communication technology and
growth of understanding the social stigma of divorce is fast
disappearing. It is no odder to come across a divorce even in
middle-class society. In fact, marriage is a condition precedent
to divorce. Accordingly, divorce is the ‘dissolution of a valid
marriage in law’. The present paper deliberates on divorce by
mutual consent under Hindu law and asserts certain objectives
to be accomplished. First, this paper essentially focuses on
whether the cooling period of six months for the decree of
divorce by mutual consent as provided under the Hindu
Marriage Act 1955 should be made mandatory or optional.
Secondly, it is indispensable to focus on whether consent can be
unilaterally withdrawn or not. Thirdly, the paper would analysis
whether mere silence at the second stage would tantamount to
withdrawal or not. Finally, the paper highlights that the divorce
by mutual consent which came into existence after the fault
theory. It seems that the society has civilised and lawmakers feel
that the married couple not to be kept together in dead wedlock
just by using the law as a tool and their happiness, comfort and
well-being must be respected by law otherwise marriage
institution per se may lose its own sanctity.
________________________________________________
Keywords: Marriage Institution, Matrimonial Remedy,
Divorce, Mutual Consent, Cooling Period, Withdrawal of
Consent, ICT Mechanism, Court Proceedings, Jurisdiction.
Introduction
Since independence there have been significant changes in the status of
women, socio-economics and legal sphere of life, along with significant changes
in family law, that have reflected social changes. However, these changes have
not been as far reaching as some might have desired but slowness in such matters
is to be expected. Eventually, the dead weight of centuries cannot easily be put
aside. Under old Hindu law marriage was considered to be sacramental union
which could not be dissolved. A need was felt for reforming the Hindu
matrimonial law and various changes were introduced in the year 1955, while
codified and amended the previous Hindu laws. As far as the Hindu marriages

 Professor of Law and Vice-Chancellor, Maharashtra National Law University, Nagpur,

[email protected].
 Student, B.A.LL.B., Symbiosis Law School, Hyderabad.
2 Contemprory Law Review [Vol. 1

were concerned the Hindu Marriage Act was passed in the year 1955, the Act
provided provisions for marriage and also provided matrimonial remedies, which
were not part of uncodified Hindu law but were introduced as influenced by
English matrimonial law.
A marriage under the Hindu Marriage Act no longer remains an indissoluble
union as various matrimonial remedies were introduced in 1955. The remedy of
divorce, a formal dissolution of marriage solemnised properly, also found central
place of the Hindu Marriage Act. Reformers felt that Hindu law was reformed,
modern and progressive, as adaptability of changes by the Hindu society had been
its core philosophy of development. Unfortunately, if we examine and evaluate
the status of women under Hindu law, it is difficult to agree with the argument
that it is progressive, that it is reformed and that it is modern. The various
matrimonial remedies introduced were desired to help the hapless women, but the
experiences have proved otherwise. The much desired concept of introducing
matrimonial remedies in case of impediments to a marriage has created more
problems for the women than it has solved. The entire scheme of the Hindu
Marriage Act 1955 was covered by the underlying principle that the ship of the
married life should not be wrecked in the first storm of life.
Divorce is known as ‘formal dissolution of a valid marriage in law’, in a way
other than the death of one of the spouses, so that the parties are free to remarry
either immediately or after a certain period of time, if any of the parties wishes to
do so. For the first time among Hindus, the divorce was introduced in 1955 in the
form of the Hindu Marriage Act 1955. However, before the commencement of
the Hindu Marriage Act 1955, there were the Acts in some of the states providing
for divorce in certain circumstances, viz., the Bombay Hindu Divorce Act 1947,
the Madras Hindu (Bigamy, Prevention and Divorce) Act 1949, and the
Saurashtra Hindu Divorce Act 1952. These Acts were repealed by Section 30 of
the Hindu Marriage Act 1955.
Under the Hindu Marriage Act 1955 there are nine grounds of divorce and
they are based on the fault theory of divorce, i.e., adultery; desertion, cruelty;
conversion to another religion; incurable insanity or mental disorder; virulent
leprosy; venereal disease in a communicable form; renunciation of the world; and
presumption of death (i.e., seven years unheard absence). The four additional
grounds of divorce on which wife alone can sue, i.e., (a) another wife of the
husband’s pre-Act polygamous marriage being alive; (b) the husband has been
guilty of rape, sodomy or bestiality; (c) cohabitation between the parties has not
taken place for one year or upwards after the passing of an order awarding
maintenance to the wife under Section 125 of the Code of Criminal Procedure
1973, or under Section 18 of the Hindu Adoptions and Maintenance Act 1956;
and (d) the marriage of the wife (whether consummated or not) was solemnized
before she attained the age of fifteen years and she had repudiated the marriage
after attaining that age but before attaining the age of eighteen years.
Divorce by mutual consent is one of the grounds of divorce under the Hindu
Marriage Act 1955 for Hindus. Wherein both the parties, i.e., the husband and the
wife come to a mutual understanding that the marriage be dissolved amicably.
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 3

Bertrand Russell once observed that “perhaps easy divorce causes little
unhappiness than any other system”.1
Divorce by Mutual Consent
Divorce by mutual consent among Hindus was introduced in 1976 through
amendment into the Hindu Marriage Act 1955. The amendments of 1976 into the
principal Act added Section 13-B providing divorce by mutual consent. This
provision is retrospective as well as prospective in its effect. If both the parties to
a marriage have agreed to dissolve their marriage, they may do so in a more
civilized and cultured way than by quarrelling between themselves in a court.
They may file petition together under Section 13-B in a District Court, court of
competent jurisdiction,2 that they may be granted a decree of divorce. According
to sub-section (1) of Section 13-B, the following essentials are required: (i) that
the spouses have been living separately for one year or more; (ii) that they have
not been able to live together; and (iii) that they have mutually agreed that the
marriage should be dissolved.3 However, Section 7 of the Family Courts Act 1984
also deals with the dissolution of marriage.
In Bipin Kumar Samal v. Minarva Swain alias Samal4 case, the Orissa High
Court held that where marriage between the parties has irretrievably broken down
and any chance of reunion between the parties seems to be impossible, moreover
as per the terms of settlement, the husband has already deposited entire amount
of permanent alimony and returned all articles of stridhana to the wife; further
the court has found that compromise between the parties have been lawfully
entered into and no coercion or undue influence was used, hence, a decree of
divorce on mutual ground was passed. In Smt. Shilpa Chaudhary v. Principal
Judge5 case the Allahabad High Court held that recording of statement of witness
through video conferencing is permissible as word ‘hearing’ used in Section 13-
B does not necessarily mean that both the parties have to be examined.
Observance of Statutory Period
Section 13-B of the Hindu Marriage Act enables the parties to a marriage to
obtain a decree for divorce by mutual consent by a joint petition to the court. In
disposing of any application under this Section 13-B of the Hindu Marriage Act
for leave to present a petition for divorce before one year from the date of
marriage, the court shall see the welfare of minor children and also made effort
for reconciliation.6 Further, where both the parties to a marriage together filed
petition for dissolution of marriage by a decree of divorce before the District
Court stating that they have been living separately for a period of one year or
more, that they have not been able to live together and that they have mutually
agreed that the marriage shall be dissolved.7 In Kiritbhai Girdhar Bhai Patel v.
Prafulabeen Kirit Bhai Patel8 case the Gujarat High Court held that the

1 Bertrand Russell, II AUTOBIOGRAPHY OF RUSSELL; H.S. Ursekar, “Divorce by Mutual Consent”,

The Hindu Marriage & Special Marriage Acts, p. 233.
2 Section 19, the Hindu Marriage Act 1955.
3 Miten v. Union of India (2008) 5 Mah LJ 27.
4 AIR 2016 Ori 41.
5 AIR 2016 All 122.
6 Section 14(2), the Hindu Marriage Act 1955.
7 Section 13-B (1), the Hindu Marriage Act 1955.
8 AIR 1993 Guj 111.
4 Contemprory Law Review [Vol. 1

expression ‘have been living separately’ under sub-section (1) of Section 13-B of
the Hindu Marriage Act does not necessarily mean that the spouses have to live
in different places. What the expression would seem to require is that they must
be living apart, viz., not living with each other as ‘husband’ and ‘wife’. Merely
going abroad jointly and staying under one roof is not living as husband and wife.
It cannot be a ground to refuse divorce when marriage has not been consummated
for more than one year. The parties have mutually agreed that their marriage
should be dissolved. The same may proceed from one party to the other or from
a third party to both the parties.9
After filing of a petition under sub-section (1) of Section 13-B, the court shall
not proceed with it for six months, considered to be cooling period. This is for
the purpose of giving time to the parties to re-think over their decision of divorce.
At the end of six months, the court will not proceed with the petition suo moto. If
the parties move the court thereafter, then only the court will proceed. The motion
must be made by both the parties. The parties have to make a motion not later
than eighteen months from the date of the filing of the petition. This is a
mandatory provision. The petition will not be heard beyond said period. It is
however; open to the parties to withdraw the petition in the meantime. If the
second motion is not made within the period of eighteen months, then the court
is not bound to pass a decree of divorce by mutual consent.10
After six months the presentation of the petition and not later than eighteen
months after the said date of hearing for second motion, if the petition is not
withdrawn in the meantime, the court on satisfaction and on hearing the parties,
may pass a decree of divorce declaring the marriage to be dissolved with effect
from the date of decree.11 The court may also allow the parties to amend a petition
for divorce under Section 13-B to be converted into a petition for divorce by
mutual consent. This is possible even at the appellate stage. When a decree of
divorce under Section 13-B is passed on such an amended petition, the effect is
that all the past allegations and cross-allegations made by the parties against each
other during the hearing of the petition under Section 13-B are quashed. In Arun
Chawla v. Reena12 case the court held that once an earlier application for
dissolution of marriage on some other ground is sought to be converted into one
for dissolution of marriage on mutual consent, and if such prayer is allowed, the
period of six months would be reckoned from the original date of filing of the
application.
It is also important to know that it shall not be competent for any court to
entertain any petition for dissolution of a marriage by a decree of a divorce, unless
the date of the presentation of the petition one year has elapsed, since the date of
marriage.13A petition may be allowed within one year of the marriage on the

9 R.K. Agarwala, HINDU LAW, 21st ed. 2003, p. 96.

10 Hitesh Bhatnagar v. Deepa Bhatnagar AIR 2011 SC 1637:(2011) 5 SCC 234.
11 Section 13-B (2), the Hindu Marriage Act 1955.
12 1(1999) DMC 18 (P&H-DB); Surestha Devi v. Om Prakash AIR 1992 SC 1904: (1991) 2 SCC 25;
Krishna v. Attar Singh 1 (1992) DMC 211 (Del); Padmini v. Hemant Singh 1 (1994) DMC 465 (MP);
Hari Prakash Mishra v. Shakuntala Mishra II (1995) DMC 202; Neeranjan Kumar v. Veena Rani
1995 (2) Pun LR 200.
13 Section 14(1), the Hindu Marriage Act 1955.
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 5

ground that the case is one of exceptional hardship to the petitioner or exceptional
depravity on the part of the respondent, but it appears to the court that the
petitioner obtained leave to present the petition by any misrepresentation or
concealment of the nature of the case, the court, may if it pronounces a decree,
may do so subject to the condition that the decree shall not have effect until after
expiry of one year from the date of the marriage or may dismiss the petition
without prejudice to any petition which may be brought after expiration of the
said year upon the same or substantially the same facts as those alleged in support
of the petition so dismissed. Further, Section 13-B is contingent on the mutual
consent of the parties to divorce. If one of the parties is not willing to give consent
the court cannot pass a decree of divorce. Such a situation arose in Jayshree v.
Ramesh14 and Nachhattar Singh v. Harcharan Kaur.15
Waiving off the Statutory Period
Marriage is union of two hearts and success of married life depends on the
edifice built with the mutual trust, understanding, love, affection, service of
caring and sharing and self-denial, further once this edifice is shaken, happy
married life will be shattered into pieces. Where the marriage tie has been broken,
the court has to look to the interest of the parties and welfare of the children as
paramount. When it is impossible to live like the husband and wife, any
compulsion to unite them will lead to social evils and disturbance of mental peace
and disorder in the family, needs to be considered as the guiding principle.16It is
obligatory for courts to make last minutes efforts to save marriage but where there
is no possibility of re-union and when process of divorce by mutual consent has
been adopted, it is also open to court to waive six months’ period. Section 13-B
and 13-B(2) are only directory and not mandatory and if held to be mandatory it
would frustrate much liberalised concept of divorce by mutual consent.17
However, there is no reason why two unwilling partners who hate each other
should be forced to be bound for solemn-matrimonial bond for the rest of their
life against their wish and will.18 Where both the husband and wife are well
educated and matured to understand such decision prayed for divorce on ground
of mutual consent, waiver of period of six months as prescribed under Section
13-B(2) of the Act which is directory in nature, and the couple separated for six
years, can be waived and marriage can be dissolved.19
Eventually, a decree of divorce by mutual consent can be passed and is liable
to be passed where the parties seek divorce by mutual consent only by resort to
the specific provisions of Section 13-B of the Act and not otherwise. It is well
settled that where a power is given to do certain thing in a certain way, that must
be done in that way alone or not at all and all other methods of performance are
necessarily forbidden. Therefore, the statutory provisions which have been

14 AIR 1984 Bom 30.

15 AIR 1986 P&H 201.
16 Roopa Reddy v. Prabhaker Reddy 1993 (2) HLR 334 (Ker): II (1993) DMC 274; Chiranjeevi v.
Lavanya 1999 (2) HLR 457 (AP).
17 K. Thuruvengadam v. Nil (2007) 5 CTC 870.
18 Jatender Singh v. Sonia 1999 (1) HLR 468 (P&H); Amandeep Singh Grover v. State of Punjab 1999
(1) HLR 464 (P&H).
19 Anita Sharma v. Nil AIR 2005 Del 365: I (2005) DMC 857(Del): 2006 (1) HLR 178 (Del).
6 Contemprory Law Review [Vol. 1

enacted for grant of divorce by mutual consent are to be adhered to and these
cannot be circumvented or short circuited by resort to other procedure like Order
23, Rule 3 of the Code of Civil Procedure and grant a decree of divorce by
dispensing with the requirements contained in Section 13-B of the Act.20
Ordinarily the statutory period is not waived off but it has been seen that in certain
hardships the courts have waived it in the larger interest of the parties to marriage
and / or offspring from the wedlock. There have been conflicting judgements in
this regard that whether the courts should mandatorily wait for a period of six
months as given in the 13-B(2). In Dinesh Kumar Shukla v Neeta21 case it was
held that the waiting period is directory in nature and it can be brought down from
six months, provided the mandatory requirements of Section 13-B(1) are fulfilled,
when all efforts at reconciliation failed.22Whereas in Hitesh Narendra Doshi v.
Jesal Hitesh Doshi23 case it was held that “the provision has a definite purpose
and object, i.e., giving time to the parties for introspection and reconciliation.
That purpose and object stares at us so clearly by the language expressed in
Section 13-B(2) of the Act robbing away the right of the court from considering
the petition earlier than six months.”24
In Apurba Mohan Ghosh v. Manashi Ghosh25 case it has been clearly held
that grant of a decree for divorce cannot be founded on compromise. However,
the Apex Court has clearly held that when the court comes to the conclusion that
the marriage has irretrievably broken down and that there is no possibility of
reunion or reconciliation between the parties and that the consent is free consent
not having been obtained by fraud, force or undue influence, the court shall have
to pass a decree for dissolution of marriage by mutual consent as the very
legislative intent behind enacting such provision would be rendered meaningless
if it would render the provision to lead to a position of perpetuation or
procrastination of agonies and miseries of the separated spouses despite the
realization that re-conciliation was possible.26
In Shaveta Garg v. Rajat Goyal,27 it was held that waiting period of six
months can be waived on concession of both the parties. In Smt. Suman v. Ashok
Chhajer28 in a petition for divorce under Section 13-B, where both the parties
appeared in person and stated that it was not possible for them to live together
and to secure ends of justice for peaceful life of both the parties, a decree of
divorce by mutual consent was granted.
Where parties were living separately for the last several years, it was held
that waiting for notice period is not mandatory. It can be dispensed of by the

20 P. Sunder Raj v. P. Sarika Raj AIR 2015 P & H 83, 96-97.

21 AIR 2005 MP 106.
22 Jayshree v. Devendra AIR 2016 (NOC) 597 (MP).
23 AIR 2000 AP 364.
24 Hitesh Narendra Doshi v. Jesal Hitesh Doshi AIR 2000 AP 364, 364.
25 AIR 1989 Cal 115; 93 CWN 79: I (1990) DMC145: (1988) 2 CHN 449.
26 Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6; V. Bhagat v. Bhagat (1994) 1 SCC 337;
Chandrakala Trivedi v. S.P. Trivedi (Dr.) (1993) 4 SCC 232; Romesh Chander v. Savitri AIR 1995
SC 851: (1995) 2 SCC 7. See also Harpreet Singh Popli v. Manmeet Kaur Popli (2010) 15 SCC 316;
Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612.
27 AIR 2009 (NOC) 1640 (P&H).
28 AIR 2010 (NOC) 549 (Raj).
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 7

court.29 However, the waiting period of six months provided in Section 13-B(2)
of the Act cannot be curtailed in altogether a freshly instituted petition for divorce
under Section 13-B of the Act. This period, however, be curtailed if divorce
proceedings have been pending between them since long and they and their
relations have strained every nerve to save their marriage and bring about
reconciliation between them and they have felt that their marriage is a dead horse
and it is of no use flogging a dead horse.30
Where the effort to persuade the boy and the girl to stay together did not yield
any fruitful result and their attitude clearly showed that the marriage between
them had irretrievably broken down. Both of them were young and no useful
purpose would be served by allowing them to continue with the protracted
litigation, the court was inclined to dispense with the statutory period of six
months under Section 13-B(2) of the Act and passed a decree of divorce.31
Similarly, in Mandeep Kaur Bajwa v. Chetanjeet Singh Randhawa32 where
immediately after the marriage, the parties could not adjust due to different
temperaments which led to strained relations between them. In view of the facts
and circumstances of the case the period of one year under proviso to Section
14(1) of the Act was condoned and a decree of divorce by mutual consent under
Section 13-B of the Act was granted. Further, in Nilamben Bharatkumar Patel v.
Bharatkumar Dahyabhai Patel33 the Gujarat High Court while taking cognizance
of the facts that when the parties were residing separately for more than seven
years and they had obtained customary divorce; moreover, urgency pleaded by
the wife that she intended to remarry and her would be husband resides abroad
requiring her to complete passport procedure at the earliest; the Court held that in
such circumstances warrant of waiving period of six months is justifiable.
In Om Prakash v. Nalini34 case an application by the husband for divorce was
dismissed by the lower court. During the pendency of the appeal to the High Court
a compromise memo was filed by both the parties praying for a decree of divorce
by mutual consent. It was held that the appellate court could pass a decree
irrespective of the limitations laid down in Section 13-B(2). It is submitted that
the requirement that the court should wait for a period of six months is intended
to prevent the parties from rushing to a court for decree of divorce and giving
them an opportunity for locus penitential and hence, the requirement should not
be regarded as merely directory.
In Sureshta Devi v. Om Prakash35 case, setting at rest a conflict of decisions
between different High Courts, the Supreme Court rejected the contention that
the consent given at the time of the petition is irrevocable and cannot be
withdrawn. The court held that the consent could be withdrawn at any time before
the court passes the decree of divorce. The waiting period from six to eighteen

29 Viji (Dr.M.G.) v. Omana, (P.T.) 1998 (2) HLR 682 (Ker); Merukaben Pandya v. Rakesh Kumar
Jayantilal Trivedi 2000 (1) HLR 242 (Guj).
30 Mohinder Pal Kaur v. Gurmit Singh 2002 (1) HLR 537 (P&H).
31 Mona Jain v. Sanjeev Jain 1995 (1) HLR 326 (P&H); Suresh Kumar Batra v. Varsha Batra 1994 (2)
HLR 510 (P&H). See also Rajesh Kumar Sharma v. Preeti Sharma AIR 2015 Raj 26.
32 AIR 2015 P&H 160. 162-163.
33 AIR 2017 Guj 19. See also Tallapaneni Sreekanth v. Nil AIR 2016 (NOC) 433 (Hyd).
34 AIR 1986 AP 167: 1988 (2) ALT 410.
35 AIR 1992 SC 1904:(1991) 2 SCC 25 :(1991) 1 SCR 274: 1991 (1) HLR 467 (SC).
8 Contemprory Law Review [Vol. 1

months was obviously intended to give time and opportunity to the parties to
reflect and to have a second thought and change in their mind. The filing of the
petition does not authorise the court to make a decree of divorce during that period
because the court should be satisfied about the bona fides and consent of the
parties.36 If there is no consent at the time of enquiry, the court has no jurisdiction
to pass a decree of divorce by mutual consent.37
Complete Justice : Supreme Court of India
The Supreme Court of India in exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause
or matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India, … in such manner… prescribe.38
Further, the Supreme Court may grant appropriate relief where there is some
manifest illegality; where there is manifest want of jurisdiction; and where some
palpable injustice is shown to have resulted. So in such situations, the Supreme
Court can exercise power under Article 142 of the Constitution or powers
inherited in the Court as guardian of the Constitution.39 In Ashok Hurra v. Rupa
Bipin Zaveri40 case the Supreme Court held that in exercise of its extraordinary
powers under Article 142 of the Constitution, the Supreme Court can grant relief
to the parties without even waiting for the statutory period of six months
stipulated in Section 13-B of the Act. The doctrine of irretrievable breakdown of
marriage is not available even to the High Courts which do not have powers
similar to those exercised by the Supreme Court under Article 142 of the
Constitution. In Anil Kumar Jain v. Maya Jain41 case, the Supreme Court after
arriving at a conclusion that the marriage between the parties had broken down
irretrievably, the court felt justified to invoke its power under Article 142 of the
Constitution, and granted the relief to the parties accordingly. It was further held
by the court that ‘technicality should be tampered by pragmatism, if substantive
justice was to be done to the parties’. Following the Anil Kumar Jain’s case, the
Supreme Court in Devinder Singh Narula v. Meenakshi Nangia42 case held that
the Supreme Court could invoke its power under Article 142 of the Constitution
in the best interest of the parties and allowed the appeal while granting decree of
divorce by mutual consent. The court further opined that ‘it is no doubt true that
the legislature had in its wisdom stipulated a cooling period of six months from
the date of filing of a petition for mutual divorce till such divorce is actually
granted, with the intention that it would save the institution of marriage. It is also
true that the intention of the legislature cannot be faulted with, but there may be
occasions when in order to do complete justice to the parties it becomes necessary
for the Court to invoke its powers under Article 142 in an irreconcilable
situation’.43

36 Inderjit Singh Grewal v. State of Punjab (2011) 12 SCC 588.

37 Jyoti v. Darshan Nirmal Jain AIR 2013 Guj 218; Vijender Kumar (rev.), J.D. Mayne, HINDU LAW
& USAGE, 17th ed. 2014, pp. 396-397.
38 Article 142(1), the Constitution of India.
39 A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531: (1988) 2 SCC 602.
40 AIR 1997 SC1266: (1997) 4 SCC 226.
41 AIR 2010 SC 229: (2009) 10 SCC 415.
42 (2012) 8 SCC 580.
43 (2012) 8 SCC 580, para 9.
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 9

In Kiran v. Sharad Dutt44 which was considered in Anil Kumar Jain’s case,
after living separately for many years and 11 years after initiating proceedings
under Section 13 of the Hindu Marriage Act, the parties filed a joint application
before the Supreme Court for leave to amend the divorce petition and to convert
the same into a proceeding under Section 13-B of the Act. Treating the petition
as one under Section 13-B of the Act, the Supreme Court by invoking its power
under Article 142 of the Constitution, granted a decree of mutual divorce at the
Special Leave Petition itself. In different cases in different situations, the
Supreme Court had invoked its power under Article 142 of the Constitution in
order to do complete justice between the parties.45 Therefore, the Supreme Court
by way of its extraordinary powers as provided under Article 142 of the
Constitution can grant divorce without waiting for six months, if it is satisfied
that the marriage is irretrievably broken down.46 This power is restricted only to
the Supreme Court.47 There is still uncertainty whether High Courts and Family
Courts have to mandatorily wait for a period of six months; as neither the High
Court nor the Civil Court can pass such order before prescribed period.48 In Nikhil
Kumar v. Rupali Kumar49 the Supreme Court waived six months’ waiting period
as the parties to marriage, both were educated persons, were living separately for
last around five years and the respondent-wife proposed to move abroad.
However, it is evident from many cases where there is no possibility of
reconciliation between the parties and the marriage has been broken down
irretrievably, the courts should follow the spirit of law more than the formal
requirements of the section.
In Anita Sabharwal v. Anil Sabharwal50 case where the Supreme Court
dissolved the marriage of the parties by treating the divorce petition filed under
Section 13 of the Act as one filed under Section 13-B of the Act and without
waiting for expiry of statutory period of six months. The parties were married
about 14 years ago and had spent the prime of their life litigating and were eager
to dissolve the matrimonial tie so that they could rearrange their lives. The
Supreme Court, considering the fact that all hopes to unite them together had
gone, granted to the parties a decree of divorce by mutual consent to end their
prolonged unhappiness. The waiving off statutory period was further cemented
by the Supreme Court in Aditi Wadhera v. Vivek Kumar Wadhera51 wherein
Article 142 of the Constitution of India was invoked, where both the parties have
arrived at an amicable settlement of entire disputes, and while considering the
fact that the parties were living separately for more than five years and
respondent-husband had to go back to his work place in USA and appellant-wife

44 2000 (10) SCC 243.

45 Civil Appeal No. 5946 of 2012, arising out of SLP (C) No. 21084 of 2012, para 9.
46 Vimi Vinod Chopra v. Vinod Gulshan Chopra (2013) 15 SCC 547.
47 Anil Kumar Jain v. Maya Jain AIR 2010 SC 229. See also Manish Goel v. Rohini Goel AIR 2010 SC
1099: (2010) 4 SCC 393.
48 Swapnil Verma v. Principal Judge, Family Court, Lucknow AIR 2015 All 153.
49 AIR 2016 SC 2163.
50 (1997) 1 SCC 490.
51 AIR 2016 SC 3840.
10 Contemprory Law Review [Vol. 1

had to think of her future. In such a situation, the Supreme Court granted decree
of divorce by mutual consent by waiving statutory period of waiting.52
Genuineness of Consent
Sub-section 13-B(2) of the Hindu Marriage Act 1955 requires the court of
competent jurisdiction to satisfy as to whether the marriage has been solemnised
and that the averments in the petition are true. It is the duty of the court to identify
whether the consent for divorce is obtained by force, fraud or undue influence on
the very first date of proceeding.53 Once consent is given, it can be withdrawn at
any time before decree of divorce is granted. In the whole process, an important
requirement for grant of a divorce by mutual consent is ‘free consent’ of both the
parties. Unless there is complete agreement between the parties for dissolution of
marriage and unless the court is completely satisfied in respect thereof, it cannot
grant a decree of divorce by mutual consent.54 In case the parties have been living
separately one year before the initiation of joint petition for divorce and there was
no scope for re-union, normally, the court has no other option than to grant a
decree of divorce. Where marriage is a failure and the parties wanted to put an
end to the marital bond, the court should respect the sentiments and grant a decree
of divorce. It is not the intention of the legislature to deny divorce, in spite of
parties taking a conscious decision to part ways. The court cannot enlarge the
scope of an enquiry under sub-section 13-B(2) of the Act and act like a fact
finding authority. In other words, once it is convinced that it would not be
possible for the parties to live together and that they have opted to dissolve their
marriage peacefully, the endeavour of the court must be to grant the parties of
divorce rather than compelling the parties to live separately even thereafter.55
In Mohanan v. Jijiya Bai56 where one party withdrew the consent it was
observed by the court that the court must enquire whether the consent was
genuine, willingly given and to consider whether the order of divorce in terms of
the application is desirable or not. An order cannot be passed mechanically
without being satisfied about the genuiness of the consent. In Prabala
Subbalakshmi v. Prabala Ananta Venkata57 where the wife filed an affidavit that
her signature to the joint petition was obtained by fraud and coercion, and
withdrew from the petition, it was held that the decree for divorce cannot be
granted. In Ramparas v. Vanamala58 it was held that the court cannot proceed to
consider the petition on merits after the expiry of six months from the date of
presentation, if one of the parties withdraws the consent or refuses to join the
other to make a motion for consideration of the petition on merits. In Pravakar
Muduli v. Smt. Satyabhama Muduli59 the Orissa High Court held that in case of a
divorce on ground of mutual consent, the consent so given must continue to
decreenisi and must be valid consent when case is heard. A decree of divorce

52 AIR 2016 SC 3840, 3841.

53 Sushama v. Pramod (2009) 81 AIC 599 (Bom).
54 Hitesh Bhatnagar v. Deepa Bhatnagar AIR 2011 SC 1637: (2011) 5 SCC 234.
55 In Re: A. C. Mathivanam AIR 2016 Mad 165. See also Smt. Chandan Kanwar v. Balwant Singh AIR
2016 (NOC) 580 (Raj).
56 (1987) 2 HLR 709(Ker); Damyanti v. Kirit 1992 (2) HLR 635 (Bom).
57 (1987) 1 HLR 503 (AP).
58 (1998) 2 HLR 647 (Kant).
59 AIR 2017 (NOC) 4 (Ori).
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 11

cannot be passed if any party at interregnum stage resiles from consent so given.
In this case, the wife resiled from her consent given for divorce on ground that
permanent alimony as agreed between the parties was not received. Therefore,
the court disentitled the husband to obtain divorce on ground of mutual consent.
In Girija Kumari v. Vijayanandan60 case after the expiry of six months from
filing of the petition for divorce by mutual consent, the wife was absent though
she had not withdrawn the petition. It was held that the wife cannot be held to be
consenting party and the consent decree passed in her absence was not valid. But
the petition for divorce by mutual consent cannot be disallowed merely on the
ground that the wife was absent on the date fixed for disposal although her lawyer
was present who did not raise any objection to the disposal of the suit for divorce
by mutual consent of the husband and wife.61 Where petition for divorce by
mutual consent was filed jointly by the husband and the wife and husband
continued wilful absence from next date of hearing, the inference can be drawn
that consent which was initially given continues. If the husband wanted to
withdraw his consent he should have taken positive stand and informed the court
that he was withdrawing his consent. The order refusing to grant decree of divorce
on basis of mutual consent on ground that consent of husband was missing at
second stage is liable to be set aside.62 Hence, inquiry under Section 13-B(2) is
for ascertaining averments of the parties but not for enquiring unwillingness of
any party for dissolution of marriage. If any party to marriage expresses
unwillingness to seek divorce; it should be treated as withdrawal of the petition
of divorce on mutual consent.63
In Ram Parkash v. Savitri Devi64 case the Punjab & Haryana High Court held
that “with the passage of time and the advancing march of civilization people
began to recognise that it was somewhat inequitable that the husband should be
at liberty to pick all the plums from the tree of marriage and the wife should be
left only with stones. The legislature accordingly proceeded to enact a number of
measures with the express object of emancipating married women from the
liabilities which the Hindu law attached to them with the object of enlarging their
rights and with the object of protecting the wife from the importunities of the
husband. These measures introduce a fundamental change of public policy and
lay down a new foundation of equality of husband and wife.”65
A consent decree passed under Section 13-B of the Hindu Marriage Act 1955
granting divorce by mutual consent of the spouses is entirely different from a
consent decree passed by a Civil Court in non-matrimonial matters. A decree
passed by the consent of spouses is to be distinguished from decrees passed in
other matters by a Civil Court as there are several formalities and requirements,

60 AIR 1995 Ker 159 relying on Sureshta Devi v. Om Prakash AIR 1992 SC 1904: (1991) 2 SCC 25 and
approving Aniruddan v. Prasanna Kumari 1989 (1) KLT 42.
61 Subhajyati Majumdar v. Arunima Majumdar 1992 (1) HLR 438 (Cal).
62 Suman v. Surendra Kumar AIR 2003 Raj 155: I (2003) DMC 805 (Raj): 2004 (1) HLR 446 (Raj). See
also Roopa v. Santosh Kumar AIR 2005 AII 172: 2005 (2) HLR 385 (AII); Yash Mehta v. Arundhiti
Mehta 2006 (2) HLR 731 (Del): II (2006) DMC 474 (Del); Pankaj Parmar v. Shikha Parmar 2005 (2)
HLR 149 (Del).
63 Chiliveru Sai Ram Sagar v. Bandaru Haripriya AIR 2017 Hyd 17.
64 AIR 1958 Punj 87.
65 Ram Parkash v. Savitri Devi AIR 1958 Punj 87, 89.
12 Contemprory Law Review [Vol. 1

which are prescribed under Section 13-B of the Act. When there is violation of
those requirements of law or there is allegation of fraud, undue influence,
coercion, deception, deceit in passing a decree under Section 13-B of the Act; an
appeal can be made to the next appellate court. Further, Section 28(1) of the Act
is very clear that all decrees including a consent decree passed under Section 13-
B of the Act is appealable.66
Thus, the recent reforms in marriage under Hindu law confirmed due respect
for and adherence to the provisions of the Constitution of India and fundamental
rights incorporated there under, wherefrom commences a movement of justice in
social, economic and political sphere of life.
Use of Technology in Matrimonial Proceedings
Dispensation of justice entails speedy justice and it must be justice rendered
with least inconvenience to the parties as well as to the witness. If information
and communications technology (ICT) facility is available for recording evidence
through video-conferencing, avoids any delay or inconvenience to the parties
such facilities should be restored to. There is no requirement that the witness must
be required to come to the court and depose in the physical presence in the court.
The Code of Civil Procedure 1908 is a procedural code and the procedures are
subservient to justice. The courts have to use procedures, which facilitates the
courts dispensing speedier justice. The court cannot neglect the development of
law and the technology that has taken place over the years. A witness or the party
may even be within the city where the court is located or abroad and for reasons
it may not be possible for the witness or the party to travel to appear before the
court in person, in such circumstances, to assist on the witness travelling the court
and waiting for hours may not be judicious.67
The word ‘after hearing the parties’ used in sub-section (2) of Section 13-B,
however, does not necessarily mean that both the parties have to be examined.
The word ‘hearing’ is often used in a broad sense which need not always mean
personal hearing when there are no suspicious circumstances or any particular
reason to think that the averments in the affidavit may not be true, there is
absolutely no reason why the court should not act on the affidavit filed by one of
the parties. The Family Courts are entitled to ascertain the views of the parties,
but however, if one of the parties, appears before the Family Court and expresses
no objection to an affidavit of the other party to be taken on record and is not
desirous of cross-examining the deponent of the affidavit, the Family Court can
entertain, unhesitatingly any such application.68
Increasingly the Family Courts have been noticing that one of the parties is
stationed abroad or out of the jurisdiction of the court. It may not be always
possible for such parties to undertake trip to India, or travel from other
jurisdictions to the jurisdiction of the court, for variety of unavoidable reasons.
On the intended day of examination of a particular party, the proceedings may
not go on, or even get completed, possibly, sometimes due to pre-occupation with
any other more pressing work in the court. But, however, technology,

66 S. Rajkannu v. R. Shanmugapriya AIR 2016 Mad 42.

67 Smt. Shilpa Chaudhary v. Principal Judge AIR 2016 All 122, 124.
68 Ibid.
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 13

particularly, in the information and communication sector has improved by leaps

and bounds. The courts in India are also making efforts to put to use the
technologies available. Skype is one such facility, which is easily available.
Therefore, the Family Courts are justified in seeking the assistance of any
practicing lawyer to provide the necessary skype facility in any particular case.
For that purpose, the parties can be permitted to be represented by a legal
practitioner, who can bring a mobile device or use ICT installed in the court. By
using the skype or video conferencing facility, parties who are staying abroad
cannot only be identified by the Family Court, but also enquired about the free
will and consent of such party. This will enable the litigation costs to be reduced
greatly and will also save precious time of the court. Further, the other party
available in the court can also help the court in not only identifying the other
party, but would be able to ascertain the required information. The court must
ensure that the party making deposition by ICT mechanism is free from any kind
of coercion, external pressure, misuse of electronic devices, which may cause him
/ her to make such statements before the court where the court cannot judge
whether he/ she is in the comfortable state of mind while making such statement
as the it happens in the courtroom where in person depositions are made,
otherwise it may cause threat to justice.
In State of Maharashtra v. Dr. Praful B. Desai69 case it was held by the
Supreme Court that advancement and technology have now, so to say, shrunk the
world. Video conferencing is an advancement in science and technology which
permits one to see, hear and talk with someone far away with the same facility
and ease as if he is present, and hence, ‘presence’ does not necessarily mean
actual physical presence in the court. The court further held that an enactment of
former days is thus to be read today, in the light of dynamic processing received
over the years with such modification of the current meaning of its language as
will now give effect to the original legislative intention. The reality and effect of
dynamic processing provides the gradual adjustment. It is constituted by judicial
interpretation year in and year out. Thus, while interpreting the law allowances
would have to be made for any relevant changes that have occurred since the
passing of law, and in social conditions, technology, the meaning of words and
other matters. Thus, it is clear that so long as the accused and / or his pleader are
present when evidence is recorded by video conferencing that evidence is being
recorded in the ‘presence’ of the accused and would thus fully meet the
requirements of Section 273 of the Code of Criminal Procedure 1973. Further,
Section 4 of the Information Technology Act 2000 provides legal recognition of
electronic recording of evidence. Section 65 B(i) of the Indian Evidence Act 1872
provides administration of electronic record. Hence, recording of such evidence
would be as per ‘procedure established by law’.
In National Textile Workers’ Union v. P.R. Ramakrishnan70 case Hon’ble
Shri Justice P.N. Bhagwati observed that “we cannot allow the dead hand of the
past to stifle the growth of the living present. Law cannot stand still; it must
change with the changing social concepts and values … The law, must therefore,

69 AIR 2003 SC 2053: 2003(4) SCC 601.

70 AIR 1983 SC 75: 1983 (1) SCC 228.
14 Contemprory Law Review [Vol. 1

constantly be on the move adapting itself to the fast changing society and not lag
behind.”71 The principle of updating construction has been followed in number
of cases.72
Section 3 of the Indian Evidence Act 1872 provides that evidence means and
includes all statements which the court permits or requires to be made before it
by witnesses, in relation to the matters of fact under enquiry; evidence would,
therefore, include video-conferencing which applies in all cases and not
necessarily in criminal matters. Further, Order 18, Rule 4(3) of the Code of Civil
Procedure 1908 provides that presence in the court does not necessarily mean
physical presence. Rule 4(3) provides for recording evidence either by writing or
mechanically in presence of the judge. In Twentieth Century Fox Films
Corporation v. NRI Film Production Association (P) Limited73 case the
Karnataka High Court held that mechanical process includes the electronic
process both for the court and commissioner. Those are empowered to adopt the
mode of evidence as per the amended Indian Evidence Act.
While deciding a matrimonial matter on ‘transfer of matrimonial case’, the
Supreme Court strongly observed that “one cannot ignore the problem faced by
a husband if proceedings are transferred on account of genuine difficulties faced
by the wife. The husband may find it difficult to contest proceedings at a place
which is convenient to the wife. Thus, transfer is not always a solution acceptable
to both the parties. It may be appropriate that available technology of video
conferencing is used where both the parties have equal difficulty and there is no
place which is convenient to both the parties. We understand that in every district
in the country video conferencing is now available. In any case, wherever such
facility is available, it ought to be fully utilized and all the High Courts ought to
issue appropriate administrative instructions to regulate the use of video
conferencing for certain category of cases. A matrimonial case where one of the
parties resides outside court’s jurisdiction is one of such categories. Wherever
one or both the parties make a request for use of video conference, proceedings
may be conducted on video conferencing, obviating the needs of the party to
appear in person.”74 Further the court observed that “the other difficulty faced by
the parties living beyond the local jurisdiction of the court is ignorance about
availability of suitable legal services. Legal Aid Committee of every district ought
to make available selected panel of advocates whose discipline and quality can
be suitably regulated and who are ready to provide legal aid at a specified fee.
Such panels ought to be notified on the website of the District Legal Services
Authorities / State Legal Services Authorities / National Legal Services Authority.
This may enhance access to justice consistent with Article 39A of the
Constitution.”75 Further, the advancement of technology ought to be utilized also

71 Smt. Shilpa Chaudhary v. Principal Judge AIR 2016 All 122, 124.
72 State v. S.J. Choudhary AIR 1996 SC 1491: 1996 (2) SCC 428; SIL Import, USA v. EXIM Aides Silk
Exporters AIR 1999 SC 1609: 1999 (4) SCC 567.
73 AIR 2003 Kant 148.
74 Krishna Veni Nagam v. Harish Nagam AIR 2017 SC 1345, para 10. See also State of Maharashtra v.
Dr. Praful B. Desai AIR 2003 SC 2053: 2003(4) SCC 601: Kalyan Chandra Sarkar v. Rajesh Ranjan
alias Pappu Yadav 2005 (3) SCC 284: Budhadev Karmaskar (4) v. State of West Bengal 2011 (10)
SCC 283: Malthesh Gudda Pooja v. State of Karnataka 2011 (15) SCC 330.
75 Krishna Veni Nagam v. Harish Nagam AIR 2017 SC 1345, para 15.
2017] Divorce by Mutual Consent among Hindus : Law, Practice and Procedure 15

for service on parties or receiving communication from the parties. Every district
court must have at least one e-mail ID. Administrative instructions for directions
can be issued to permit the litigants to access the court, especially when litigant
is located outside the local jurisdiction of the court. A designated officer /
manager of a district court may suitably respond to such e-mail in the manner
permitted as per the administrative instructions. Similarly, a manager /
information officer in every district court may be accessible on a notified
telephone during notified hours as per the instructions. These steps may, to some
extent, take care of the problems of the litigants.76 Finally, the Supreme Court
directed that “in matrimonial or custody matters or in proceedings between
parties to a marriage or arising out of disputes between parties to a marriage,
wherever the defendants / respondents are located outside the jurisdiction of the
court, the court where proceedings are instituted, may examine whether it is in
the interest of justice to incorporate any safeguards for ensuring that summoning
of defendant / respondent does not result in denial of justice. Order incorporating
such safeguards, viz., (i) availability of video conferencing facility; (ii)
availability of legal aid service; (iii) deposit of cost for travel, lodging and
boarding in terms of Order XXV of the code of civil procedure; and (iv) e-mail
address / phone number, if any, at which litigant from out station may
communicate; may be sent along with the summons.”77
Conclusion and Suggestions
Through this paper, the researchers have studied in-depth the statutory
provisions on divorce under Hindu law and analysed them critically. The
researchers aimed at concluding Section 13-B of the Hindu Marriage Act which
provides divorce by mutual consent, wherein it provides an opportunity of
amicable resolution of disputes between the parties. Eventually, it is the sanctity
of marriage as institution which could not or cannot be allowed to be undermined
by the whims of one of the annoying spouses. Nowadays all personal laws allow
divorce by mutual consent, but their intention is not to facilitate or prompt the
dissolution of marriage without any cause or reason. Though the main question
of formal dissolution of marriage by invoking divorce by mutual consent remains
open for future research as to when and how long to save marriage and not to
hasten its dissolution; the core concern of the courts wherein parties to marriage
are in hurry to dissolve their nuptial ties by mutual consent. At the same time a
due care and legal protection with socio-economic support is to be provided to
the women, wherein not only the materialistic comforts but also the intellect
existence is to be honoured. In the opinion of the researchers, the view of the
Supreme Court on divorce by mutual consent is favourable to simplification and
speedy disposal of divorce proceedings. No married couple should be compelled
to live with the other against his / her wishes. If this happens, internal strife and
extra marital relations are promoted. The verdict in Ashok Hurra’s78 case upholds
this principle.

76 Krishna Veni Nagam v. Harish Nagam AIR 2017 SC 1345, para 16.
77 Ibid, para 18.
78 AIR 1992 Del 182.
16 Contemprory Law Review [Vol. 1

From the preceding research, it has become crystal clear that there is
tremendous scope for improvement of the whole procedure of disposal of
matrimonial matters with sensitivity towards women. Mediation and conciliation
mechanism need to be taken with more rigorously while referring disputed parties
to the mediation and conciliation process during the pendency of the case. Efforts
should also be made to convene the parties accept the matter be referred to the
Lok Adalat for amicable settlement. In all the processes, there should be a neutral
party, preferably an expert in family law, an academician in family law, a
sociologist and a social worker who would assist the Family Court or Lok Adalat
in disposing of the matter. This would not only speed up the process but also
reduce the burden on regular courts. Thus, the parties will be able to put an end
to their marriage tie without waiting for years together.
A well desired network of family courts would also serve the desired purpose.
It is very essential that family courts should be established for every area in the
state comprising a city or town; for such other areas in the state as it may deem
necessary; and the local limits of the area to which the jurisdiction of a family
court shall be extend and may, at any time, increase, reduce or alter, such limits
and be allowed to use information and communications technological
development in matrimonial proceedings. If adequate skilled resources and
modern information and communications technology; especially trained
personnel are made available to the family courts; the family court can play a vital
role in not only resolving matrimonial cases faster but also would save women
from economic abuse and domestic violence by the male spouses or their family
members or relatives.
The researchers feel that the time has come when law universities and other
universities-central, state or private, imparting legal education must come
forward to offer degree, diploma and certificate courses in ‘Family Disputes
Resolution’ (FDR). Wherein a graduate degree holder in any discipline from
recognised educational institution may be trend in laws related to family law,
procedural laws and allied papers. During these courses, the takers would be trend
on mediation and conciliation skills. Once a pool of well trend mediators and
conciliators is created; who would act as mediator and conciliator in the
matrimonial matters; we are sure that these graduates would be a great help to the
family courts in disposing of matrimonial matters.

****
 LAW RELATING TO BIOTECHNOLOGY :
ISSUES AND CHALLENGES
Sreenivasulu N.S. & E. Vijaya Kumar
ABSTRACT
The recent and continuing advances in life sciences clearly
unfold a scenario energized and driven by the new tools of
biotechnology. Biotechnology, globally recognized as a rapidly
emerging and far-reaching technology, is aptly described as the
“technology of hope” for its promising of food, health and
environmental sustainability. At this juncture there is a need to
regulate and provide for governing structure for biotechnology
in the larger public interest. From a constitutional perspective,
legitimate national processes and policies of decision making on
biotechnology should not be circumvented by international
regulatory activities.1 Since there are no uniform acceptance
levels for biotechnology across the globe the issues pertinent to
policy regulation of biotechnology should be decided by the
national legislative through the respective constitutional
frameworks. There are number of challenges in the regulation of
biotechnology and also there are number issues pertinent to
establishing governing structure for biotechnology. Addressing
these issues and challenges is the first and foremost concern
before there can be regulation of biotechnology through
establishing governing structure. The rapid development of
biotechnology in the last 30 years, with applications in sectors
such as agriculture, medicine industry etc., has generated varied
policy responses from governments in the OECD countries.
Investments in Indian biotechnology have begun with the early
initiatives of government through Department of Biotechnology.2
___________________________________________________
Key Words - Biotechnology, genetic engineering, regulation,
governance, policy, intellectual property, trade, environment,
ethics, human rights, public interest.
Introduction
Though often labeled ‘biotechnology regulation’ the vast bulk of the policy
literature is concerned with the construction of only one element of a regulatory
regime; the normative structure of principles, standards and rules. Biotechnology
regulation, as a field of public policy, has not yet matured to the point where other

 Professor of Law, School of Technology Laws, National University of Juridical Sciences, (NUJS)
Kolkata, [email protected].
 Professor of Law, School of Law, Christ University, Bangalore. (Formerly Professor, Dean and
Chairman, Faculty of Law, Sri Krishnadevaraya University, Anantapur, AP.
1 Danioel Wuger and Thomas Cottier, (ed.) GENETIC ENGINEERING AND THE WORLD TRADE
SYSTEM, 1st ed. 2008, p. 16.
2 Sachin Chaturvedi and S.R Rao, BIOTECHNOLOGY AND DEVELOPMENT: CHALLENGES
AND OPPORTUNITIES FOR ASIA, ed. 2004, p. 135.
18 Contemprory Law Review [Vol. 1

elements of regulatory regimes notably processes for monitoring and mechanisms

of behavioral modification are routinely considered or problematized.3 In this
background government of India has initiated certain measures to promote
biotechnology. Perhaps, the year 1982 could be mentioned as a landmark year in
the history of biotechnology in India. In order to promote biotechnology there
constituted an agency namely the “National Biotechnology Board (NBTB) under
the Ministry of Science and Technology. It is an apex coordinating body to
identify priorities, plan, co-ordinate and oversee research and development,
human resource development, industrial development of biotechnology. The same
board became department of biotechnology at a later stage”.4 In this write up an
attempt has been made to present various concerns, issues and challenges that
biotechnology industry as such has thrown open to the legal circles. Policy
framework on biotechnology and legal regulation of biotechnology has been
briefly highlighted. Intellectual property rights issues, trade and environment
concerns in the regulation of biotechnology have been presented in nutshell. At
the same time human rights concerns in biotechnology have been highlighted and
Indian regulatory outer look on biotechnology has been analyzed.
Biotechnology Policy : Issues and Challenges
There are number of issues, concerns and challenges that need to be
addressed and taken care of in the biotechnology policy formulation and in its
legal regulation5. However, precisely the following issues and challenges a
biotechnology policy shall address for its sustainable development:
(i) Promotion of innovation and development for the larger needs of the
people and greater benefit of the society.
(ii) Protection of research and innovation for promoting the
commercialization of innovations for boosting the economy.
(iii) Incentivizing creative endeavors through protective mechanism and
exclusive monopolies on innovations.
(iv) Right to know/information about the technological advancements and
scientific developments in the public interest.
(v) Inventor’s right on the innovation, confidentiality and monopoly through
the grant of intellectual property rights.
(vi) Balance of interest: Conditional temporary monopoly and compulsory
disclosure for maintaining the equilibrium in terms of knowledge
exploitation and use.
(vii) Promotion and regulation of trade related aspects of biotechnology
including trade in GMO/LMO and adhering to international obligations.
(viii) Issues concerning clinical trials6 and marketing approvals for
biotechnology products and GMO.

3 Han Somsen, THE REGULATORY CHALLENGE OF BIOTECHNOLOGY: HUMAN GENETICS,

FOOD AND PATENS, ed. 2007, p. 19.
4 Sachin Chaturvedi and S.R Rao, BIOTECHNOLOGY AND DEVELOPMENT: CHALLENGES
AND OPPORTUNITIES FOR ASIA, ed. 2004, p. 128.
5 Sreenivasulu NS, LAW RELATING TO BIOTECHNOLOGY, 1st ed. 2016, p. 73.
6 Government of India imposed moratorium on clinical trials of at least 15 GM Crops on 29/7/2014.
These crops were earlier cleared for clinical trials by the Genetic Engineering Approval Committee
functioning under the ministry of Environment and forests.
2017] Law Relating to Biotechnology: Issues and Challenges 19

(ix) Consumer concerns in trade in biotechnology and GMO, labelling,

accessibility, suitability of GM food.
(x) Technology development and transfer including development of
indigenous technology and cross border transfers and issues related.
(xi) Human Rights approach to biotechnology research and development:
Issues concerning integrity, dignity, of human beings: Ensuring right to
food7 and right to health through biotechnology.
(xii) Ensuring bio-safety in GMO creation, trade and development, while
securing human and other living beings health and safety.
(xiii) Regulation of access to genetic and biological resources and recognizing
the rights of indigenous communities, obtaining their consent and
sharing of benefits.
(xiv) Protection of biodiversity, prohibiting bio-piracy and facilitating
sustainable development for the benefit of mankind.
(xv) Addressing public policy issues and societal concerns in biotechnology
research including social acceptance of biotechnology, its use and
development.
It is felt that while formulating biotechnology policy one has to take into
account above mentioned issues which are in themselves different challenges that
are posed towards ensuring sustainable development of biotechnology as such
and also for reaping the true benefits of biotechnology by the society
Biotechnology Law
Does there exist biotechnology Law? Perhaps not and in fact biotechnology
law is a culmination of rules, regulations and laws pertinent to regulation of
various issues, challenges and concerns involved in the biotechnology
innovation, development and use. Biotechnology law basically deals with the
issues concerning promotion of biotechnology, protection and enforcement of
biotechnology innovations, biotech trade and business, regulations of
biotechnology use and sustenance, safety in usage, storage, and transfer of
biotechnology innovations, societal, ethical, religious concerns over
biotechnology, consumer interests and implications of tort law, human rights
law, contract law, corporate law and such other branches of business law and
public law on biotechnology. When it comes to the question of regulation of
biotechnology, probably the most complicated technology at hand the issues are
not only concerned with conventional corporate laws, intellectual property laws8
but with environmental and bio-diversity laws. The special traits of biotechnology
and its innovation require environmental issues to be addressed. Since
biotechnology deals with living beings and creates non-natural living beings, the
impact on the environment and the biological diversity needs to be checked.9
Non-natural livings beings, their usage, storage, transfer; release into the

7 Government of India enacted National Food Security Act, 2013 to ensure right to food to the people.
It is far widely recognized that objective of ensuring right food cannot be achieved without promoting
and using biotechnology in Indian agriculture.
8 Sreenivasulu N.S, BIOTECHNOLOGY AND PATENT LAW: PATENTING LIVING BEINGS, 1 st
ed. 2008.
9 Ricardo Melendez, Ortiz and Vicente Sanchez, TRADING IN GENES: DEVELOPMENT
PERSPECTIVES ON BIOTECHNOLOGY, TRADE AND SUSTAINABILITY, 1 st ed. 2007, p. 153.
20 Contemprory Law Review [Vol. 1

environment involves certain safety measures to be addressed to avoid any

damage to the environment. Improper usage and release of biotechnology10
innovations might cause damage to the environment and to the ecology. We have
seen controversies pertinent to biotechnology in the cases of onco-mouse, dolly
sheep, beef hormone, monarch butterfly, EC biotech etc., in the regions of USA,
Europe and such other developed nations. There have been many controversies
over genetically modified crops in India, for instance, as seen in the case of Bt.
Cotton (cash crop) and Bt. Brinjal (food crop). These case studies have also
revealed that the current legal and regulatory framework with respect to
biotechnology is inadequate. Nations have been endeavouring in bringing
biotechnology under the regular clutches of law and policy. Nations such as USA,
UK could bring in some amount of legal mechanism and policy initiatives with
reference to biotechnology. Developing nations are skeptical with reference the
fabric and content of the proposed legal frame works in this regard.
Intellectual Property Rights issues in Biotechnology
The development of capabilities for the effective management of Intellectual
Property (IP) is an important element in securing the benefits of public and private
sector research in biotechnology. Perhaps, innovations of biotechnology such as
living matter or non-natural life has already become a subject matter of
intellectual property and patenting.11 It is now a settled matter that living
innovations of biotechnology are given patent and intellectual property protection
which is boosting the growth in not only the biotechnology sector but as well in
number of other sectors. In this context, filings of patents both in India and aboard
are critical to the growth of the Indian biotech sector. The expenses for filing
patents especially outside India are prohibitive and a major barrier to effective
Intellectual Property Management within the country. Whilst expenses incurred
with respect to filing of patents in India is eligible for weighted deduction, similar
benefit is not provided for expenses incurred with regard to filing patents outside
India.12 This is also imperative in the new WTO-TRIPS regime, which has taken
effect on 1st January 2005.13 Administration of the new intellectual property
rights regime should be improved from the perspective of biotechnology. This
will be achieved by
(i) Encouraging science and biotechnology graduates to pursue law for
better understanding of IPR related issues;
(ii) Inclusion of IPR related issues in curriculum of science colleges for
facilitating filing of international patents, license negotiation, dispute
resolution etc.

10 David Naidu, BIOTECHNOLOGY AND NANOTECHNOLOGY: REGULATION UNDER

ENVIRONMENTAL, HEALTH AND SAFETY LAWS, ed. 2009, p. 33.
11 Sreenivasulu NS, LAW RELATING TO INTELLECTUAL PROPERTY, 1 st ed. 2013, p. 362.
12 As Intellectual Property Right (IPR) creation is a pre-requisite for exports to the regulated markets, it
is recommended that expenditure incurred with regard to filing patents outside India be also eligible
for weighted deduction under section 35 (2AB).
13 India ratified WTO/TRIPS agreements in 1994 and the agreements have been implemented at various
levels in India during the period of 1995 to 2005.
2017] Law Relating to Biotechnology: Issues and Challenges 21

(iii) Training scientists and biotechnology professionals in the strategy of

intellectual property protection relating to assessment of patentability,
prior art examination and technology transfer issues;
(iv) Training patent attorneys on science and biotechnology subject(s) and
improving mechanisms for IPR administration through reforms and
creation of patent offices, patent codes and ensuring adequate availability
of patent attorneys.
It is presumed that; the Department of Biotechnology engages in constant
dialogue with the Government of India to address intellectual property rights and
patentability issues in Biotechnology. Government of India will have to take into
account WTO-TRIPS mandates in imposing and implementing its law in the
biotechnology sector.
International Trade Concerns on Biotech Regulation
Perhaps, the regulatory regimes governing international trade have been slow
in adapting its rules to regulate the international trade and movement of
biotechnology products.14 Nevertheless, there is emerging global biotech trade
regime to promote commercialization and global trade in biotechnology. The
trade regime is intending to regulate trade related aspects of biotechnology while
imposing certain obligations and restrictions. Basically these obligations and
restrictions are for the purpose of ensuring safety and security of the
environment.15 It is because; development should not be at the cost of the
environment which we are supposed to hold in trust to be handed over to the
future generations. The emergence of global biotech trade regime is promising to
balance trade and environment in the context of biotechnology and GMO’s.
Perhaps, with the development and commercialization of GMOS around the
world, an intense debate arose concerning the risks associated with their use. In
the early 1990s, national regulation to govern the safe use of GMOs was relatively
advanced in Organization for Economic Co-operation and Development (OECD)
countries and practically non-existent in the developed countries. In the countries
such as USA there is established legal framework for the promotion of trade in
biotechnology. The large scale and commercial exploitation of biotechnology and
GMO was attempted to encourage and promote under the WTO trade regime16
which controls trade relations of more than 170 countries at present across the
globe. The World Trade Organization (WTO) is the principle body governing
international trade which came into being in 1995.17 Much before the
commercialization of biotechnology the final rounds of WTO/GATT negotiations
began in 1986 which ended in 1994 and resulted in the formal establishment of
WTO in 1995. Though there were some concerns regarding GMO trade to be
included in the WTO trade regime, it could not be possible at the time of either

14 Robert E. Evenson and Terri Raney, (eds.), THE POLITICAL ECONOMY OF GENETICALLY
MODIFIED FOODS, ed. 2007, p. 291.
15 Danioel Wuger and Thomas Cottier, (eds.), GENETIC ENGINEERING AND THE WORLD TRADE
SYSTEM: WORLD TRADE FORUM, 1st ed. 2008, p. 209.
16 WTO has got membership of more than 150 countries where proposed biotechnology trade regime
under the WTO system is applicable.
17 Han Somsen, THE REGULATORY CHALLENGE OF BIOTECHNOLOGY: HUMAN GENETICS,
FOOD AND PATENTS, ed. 2007, p. 107.
22 Contemprory Law Review [Vol. 1

final round of negotiations or even after the formation of WTO. However, in 2001
at the ministerial meeting of WTO in Doha concerns regarding GMO trade and
biotechnology were raised. Launch of new round of WTO trade negotiations at
Doha in November 2001 provides an opportunity to address international
commercial policy conflicts pertaining to biotechnology.18 There were
endeavours to constitute a regulatory framework for the governing of trade
relating to GMOs. However, it is facing a crisis of legitimacy as its decision
making process as it is claimed to have been undemocratic and being unable to
address the concerns of the developing countries. Perhaps, the rules of
international trade have been perceived to be slow in addressing the challenges
of commercialization of biotechnology, in particular agricultural biotechnology.
However, WTO does not specifically provide for agricultural biotechnology. The
international regulatory framework does not effectively deal with GMOs. This
would augment to the economic and political pressure on the developing
countries, which serve to impede the development of an effective and viable legal
system. The inequitable structure erodes the policy autonomy of the citizens of
the developing countries. It is felt that the United States and the European Union
utilize bilateral pressures to prevail upon the developing countries through
instruments such as technical assistance or food aid. But this support does not
come free of cost or without any strings attached. Technical assistance is provided
on the condition that the recipients adopt regulatory policies that are favourable
to the benefactors and food aid serves as an instrument to capture new markets
for GM food products.19 In particular, the donor countries have ‘captured’ the
governments of the recipient developing countries, with the result that aid
initiatives largely serve the geopolitical and economic interests of the donors and
the narrow interests of these governments. This capture in fact leads to a lack of
effective democracy (that is, participation in and accountability of governmental
decision-making processes) in these countries and thus efforts to ensure that
international regulation responds to the needs and concerns of the citizens of these
developing countries must therefore include the democratization of national
governance frameworks, which is possible through adoption of meaningful
institutional frameworks for public participation in biotechnology regulation.20
Environment Related Concern in Regulating Biotechnology
It is observed that; GMOs are capable of spreading to the limits of their
ecological niche, oblivious to international boundaries and once released into the
environment the spread of a GMO can be difficult to arrest because on release
they may cross national borders, spreading diseases by the airborne transport of
spores and when they are released. Hence both the citizens and the environment
of one country can be affected by a deliberate release originating in another

18 Sreenivasulu N.S., LAW RELATING TO BIOTECHNOLOGY, 1 st ed. 2016, p. 184.

19 ‘Food Aid or Hidden Dumping? Separating Wheat from Chaff’, Oxfam, 22 (Oxfam Briefing Paper
No. 71, 2005) available at http://www.oxfam.org.uk/what we do/issues/trade/downloads/bp71
foodaid.pdf, (visited on April 11, 2017).
20 J.M. Migai Akech, ‘Developing Countries at Crossroads: Aid, Public Participation, and the
Regulation of Trade in Genetically Modified Foods’, 29 Fordham International Law Journal. (2006)
p. 265.
2017] Law Relating to Biotechnology: Issues and Challenges 23

country, thereby creating an international concern.21 Since the ecological and

geographic ranges of GMOs transcend political boundaries, the potential risks of
deliberate releases, as well as the variation in current deliberate release
regulations in individual countries, illustrate the need for an international
approach to regulating deliberate releases. As a general rule, the General
Agreement on Trade and Tariffs (herein after referred to as ‘GATT’) mandates
non-discrimination, that is, equal treatment of like products from among all
contracting parties22 and further, it requires national treatment, that is, equal
internal treatment23 of both imported and domestic products. The GATT
agreement allows countries to take measures necessary to protect human, animal
or plant life or health and relating to the conservation of exhaustible natural
resources. Article XX of the GATT permits measures intended to protect human
health and the environment, provided that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade.24 In practice, this means that
environmental and health related measures must be scientifically based and no
more trade restrictive than necessary to meet their goals. If an otherwise
legitimate import restriction is not based upon solid science, it will be ruled
invalid by the WTO, thus limiting the ability of governments to enact
protectionist trade measures under the guise of environmental protection. In
determining whether a given restriction is scientifically based, the WTO looks to
existing scientific research and the relevant standards set by Codex Alimentarius
Commission, the International Plant Protection Convention (IPPC), and other
relevant international standards.25 However at the Uruguay Round in 1994, it was
felt that Article XX had some ‘grey areas’ that needed to be resolved. For
instance, Article XX does not establish any criteria for determining whether
measures were necessary and no specific procedure provided for settling disputes
on such matters and thus the Agreement on Sanitary and Phyto-sanitary Measures
and the Agreement on Technical Barriers to Trade were the result of this review
process.26 The WTO multilateral trade regime prescribes the Agreement on
Sanitary and Phyto-sanitary Measures (SPS Agreement) and the Agreement on
Technical Barriers to Trade (TBT Agreement) to create specific trade
exceptions27 including those for trade in biotechnology and GMO.

21 Judy J. Kim, ‘Out of the Lab and into the Field: Harmonization of Deliberate Release Regulations for
Genetically Modified Organisms’, 16 Fordham International Law Journal, 1993, p. 1160.
22 Most Favored Nation (MFN) Obligation under Article I:1 of GATT.
23 National Treatment Provision under Article III of GATT.
24 Robert Howse & Petros C, ‘Mavroidis Europe’s evolving regulatory strategy for GMOs - The Issue of
consistency with WTO Law: of Kine and Brine, 24 Fordham International Law Journal, 2000, p. 317.
25 Jonathan H. Adler, ‘More Sorry Than Safe: Assessing the Precautionary Principle and the Proposed
International Bio-safety Protocol’, 35 Texas International Law Journal, 2000, p. 173.
26 Philip Bentley Q.C A, ‘Re-Assessment of Article XX, paragraphs (b) and (g), of GATT 1994 in the
Light of Growing Consumer and Environmental Concern about Biotechnology’, 24 Fordham
International Law Journal. 2000, p. 107.
27 Han Somsen, THE REGULATORY CHALLENGE OF BIOTECHNOLOGY: HUMAN GENETICS,
FOOD AND PATENTS, ed. 2007, p. 107.
24 Contemprory Law Review [Vol. 1

Human Rights Concerns in Biotechnology

There are no doubts that biotechnology has opened up many new horizons in
the scientific world. However, the scientific progress which is being made in this
field is also accompanied by many problematic questions from both legal and
human rights points of view. A human rights approach is not the only possible
way of dealing with the problem but it has the advantage of combining of law and
ethics.28 An inquiry into the integration of law, human rights and ethics reveals
that; the fundamental principles of natural law are pre moral and universal in
character.29 At the same time, fundamental notions of human rights are also
universal in nature and character. A jurisprudential enquiry into the concept of
life reveals that there are few intrinsic values attached to life. The conceptual
framework of life is connected to natural law which postulate for the inherent
values of life like; dignity, integrity, sustenance,30 survival31 and self-
preservation. These values are often being referred to as human rights by the
society. Nature has provided every living being a right to self-dignity and
integrity. Every living being deserves a drive for self-preservation of natural
features attributed to it by the nature. Every living being has right to preserve the
intrinsic values of life, which should not be disturbed or tampered with.32 These
rights are popularly known as human rights which have been affected by the
application of biotechnology. Biotechnology is capable of marshalling the natural
features and incorporating certain novel features into living beings. Such
manipulation of living beings, hits at the inherent dignity, integrity and natural
set up of living being. Further it disturbs the sustenance and self-preservation of
natural features of life. As we can observe, nature is integral part of every living
beings’ life. Living beings are associated with and forming part of the nature. Any
alteration or manipulations of any living being like plant, animal or
microorganisms strike not only at the integrity of such living beings but also at
the integrity and balance of the nature.33 In this background it is felt that; certain
scientific and technological34 developments such as biotechnology have the
tendency to disturb and likelihood of violating the intrinsic values of life and the
rights associated there with.35 Such technological interventions of biotechnology
in the intrinsic structure and values of life and living beings ignite debates on the
prospects of biotechnology from the perspective of human rights and philosophy.
The various international conventions and the domestic legal frameworks on
human rights do directly or indirectly provide for the protection of and
perseverance of human values and it is interesting to conduct an inquiry into the

28 Francesco Francioni and Tullio Scovazzi, (eds.), BIOTECHNOLOGY AND INTERNATIONAL

LAW, 2006, p. 369.
29 A.H. Chrost, ‘Generally an introduction to Aquinas’, 19 A.M.J of Jurisprudence 1974, p. 1.
30 Freeman M.D.A (ed.), LLOYD’S INTRODUCTION TO JURISPRUDENCE, 6th ed. 1994, p. 81.
31 H.L.A. Hart, GENERALLY, THE CONCEPT OF LAW, ed. 1992, p. 188.
32 Sreenivasulu N.S, BIOTECHNOLOGY AND PATENT LAW: PATENTING LIVING BEINGS, 1st
ed. 2008, p. 196.
33 MDA Freedman (ed.) GENERALLY, KNOWLEDGE AND POLITICS, 6th ed. 1994, pp. 595-597.
34 James B. Conant, GENERALLY MODERN SCIENCE AND MODERN MAN, ed. 1953, pp. 97-98.
35 Radhakrishna and P.T. Raju (eds.), THE CONCEPT OF MAN, A STUDY IN COMPARATIVE
PHILOSOPHY, 1995, p. 17.
2017] Law Relating to Biotechnology: Issues and Challenges 25

fundamental notions of these rights in the wake of developments of

biotechnology.
Biotechnology Regulation in India
Attempts to provide for a regulatory mechanism for biotechnology in India
started about 25 years ago. As early as in 1989 itself government of India brought
out guidelines on the Rules for the manufacture / use / import / Export of
Genetically engineered organisms. Since then, there have been number initiations
through guidelines, rules, regulations, legislations. These initiations intended to
ensure environmental safety of use of genetically modified organism, regulatory
approvals for dealing with genetically engineered entities, promoting research in
biotechnology including providing for patents rights on novel biotechnology
innovations, addressing public policy concerns involved there in, protection and
maintenance of biological diversity, catering to the food and health needs in a
better way and finally for providing for a national level authority on
biotechnology regulation in India. It is submitted that the laws and policies
pertaining to biotechnology must be in compliance with the law of the land, that
is the Constitution and the golden threat underlying such a law should be the
socio-economic goals as set out in the Directive Principles of State Policy as
prescribed under the constitution. At the same time the fundamental rights of the
people of India shall also be provided to be fulfilled in the most dynamic way by
any policy that intends to regulate biotechnology. Although GMOs have not been
specifically dealt with under the domestic laws of India, nevertheless there have
been piecemeal attempts to address aspects of the same through including few
guidelines, regulations, legislations and measures to establish institutional
mechanism. That includes; Rules for the manufacturer, use, import, export and
storage of hazardous microorganisms/genetically engineered organisms, 1989,
adopted under the Environment Protection Act of 1986, guidelines such as
Recombinant DNA Safety Guidelines, ICMR guidelines of Indian Council of
Medical Research, Revised guidelines for research in transgenic plants and
guidelines for toxicity and allergen city evaluation, 1998, Guidelines for stem cell
issued by the ICMR in association with Department of biotechnology,
government of India, Guidelines for the conduct of confined field trials of
transgenic plants, 2008, Guidelines for the safety assessment of GM foods, 2008,
Protocol for safety assessment of genetically engineered plants and crops, 2008.36
Legislative efforts in the form of Protection of Plant Varieties and Farmer’s
Rights Act 2001, Patents Amendments Act 2005, The Biodiversity Act 2002,
DNA Profiling Bill 2015,37 and the pending Biotechnology Regulatory Authority
of India Bill of 2013 are notable. At the institutional level there are few
committees constituted that includes; Genetic engineering appraisal committee,
Recombinant DNA advisory committee, Review committee on genetic
manipulation, the Institutional bio-safety committee constituted under the
Recombinant DNA safety guidelines of 1990. Further there is also State
biotechnology coordination committee, District level committee. At the policy

36 Sreenivasulu N.S., LAW RELATING TO BIOTECHNOLOGY, 1st ed. 2016, p. 291.

37 In 2015 a new DNA profiling Bill was introduced by updating and upgrading the earlier introduced
Bill.
26 Contemprory Law Review [Vol. 1

level, Indian parliament appointed Parliamentary committee which functioned

during 2009-2012 and also the Supreme Court of India appointed Technical
Advisory committee in July, 2012. To understand the regulatory and policy
framework towards biotechnology regulation in India we need to look into,
analyze and debate on these guidelines, legislations and the institutional
mechanisms. Let us discuss and look into each of these legal and policy initiatives
in the direction of regulation of biotechnology in India.
Conclusion
There are quite a good number of issues and challenges that the
biotechnology sector is facing the in the legal context. The regulation of
biotechnology is done from different perspectives and the law in this regard will
have multiple dimensions while addressing number of concerns. The law relating
to biotechnology will have to address a wide range of issues concerning trade,
environmental, intellectual property, consumer protection, and human rights,
ethical, social and religious issues both at international and national level.38 The
application of law on biotechnology for addressing above mentioned concerns
has been yielding considerably good and reasonable result. It is leant that from
the experiences that; while formulating policies and while implementing laws the
approach should be of, balancing public and private interests while ensuring
sustainable development. One has to keep open mind flexible hand to promote,
adopt, use, exploit and regulate innovative technologies such as biotechnology
which not only caters to various needs but throws open various challenges.

****

38 Ricardo Melendez, et al, TRADING IN GENES: DEVELOPMENT PERSPECTIVES ON

BIOTECHNOLOGY, TRADE AND SUSTAINABILITY, 1st ed. 2007, pp. 11-15.
 DEOXYRIBO NUCLEIC ACID (DNA) FINGERPRINTING : AN
ANALYSIS OF PREVAILING SCENARIO
Anand Pawar & Deepti Singla
ABSTRACT
Science in the twenty-first century provides the law in requisite
ways, by offering evidence for and against meticulous reports of
how things occurred that are of concern to the law. Scientific
techniques, particularly the technique of DNA testing, have
come to play a progressively more critical job in the justice
delivery system and in the confirmation of an innumerable of
civil and criminal disputes. For the purpose of DNA testing
there is no specific law in India to compel a suspect for taking
of blood or other biological sample. It is necessary to
incorporate DNA technology in an Indian legislation or to draft
an exclusive independent enactment on the use of DNA
technology in Indian Courts, so that this technique could be
effectively used as valuable in the administration of justice.
________________________________________________
Keywords- Fingerprinting, DNA, Scientific evidence, Criminal
Justice System, identification.
Introduction
We must be vigilant in our actions towards criminals and
innovative in our approach towards solving crime.
-Thomas Menino
The crime scenario in the 21st century has become very complex. The modus
operandi of crime have become scientific; hence it is important to make use of
science and technology in apprehending the criminals. Improved testing
technologies are emerging, that provides efficient and effective DNA evidence
possessing which assures to expand the application of DNA information and thus
aids in search of truth by exonerating the innocent. With the help of DNA
evidence, law enforcement agencies are proficient to convincingly confirming the
guilt of an accused. Consequently, the significance of DNA fingerprinting in the
administration of justice delivery system cannot be denied.
Science in the twenty-first century provides the law in requisite ways, by
offering evidence for and against meticulous reports of how things occurred that
are of concern to the law. Scientific techniques, particularly the technique of
DNA testing, have come to play a progressively more critical job in the justice
delivery system and in the confirmation of an innumerable of civil and criminal
disputes. At present, DNA fingerprinting has enthused from the status of ‘novel
and contested scientific’ to a ‘taken for granted’ application in the toolkit of
forensic science. Huge progress has been made in the direction of regulating the
procedure of DNA testing and assuring high levels of quality control in DNA

 Professor of Law, Rajiv Gandhi National University of Law, Punjab, (Patiala), e-mail:
[email protected].
 Research Scholar, Rajiv Gandhi National University of Law, Punjab, (Patiala).
28 Contemprory Law Review [Vol. 1

testing laboratories. Though it is said to be an effective means for investigation

and prevention of crime, its application in the judicial system persists to elevate
many legal and ethical questions. Significantly it is argued that DNA in criminal
justice system violates human rights and privacy rights of individuals.
For the application of DNA testing there is no specific law in India to compel
a suspect for taking of blood or other biological sample. In India a comprehensive
law regulating the use of DNA technology and DNA data banking is absent. It is
necessary to incorporate DNA technology in an Indian legislation or to draft an
exclusive independent enactment on the use of DNA technology in Indian Courts.
In India, existing laws like The Code of Criminal Procedure, 1973, The Indian
Evidence Act, 1872 are too old. An exclusive law or Act relating to DNA
technology (other than the amendments in the provisions of Cr.P.C. and The
Indian Evidence Act) as in America, England and in Canada should be legislated
by our Parliament, so that this technique could be effectively used as valuable in
the administration of justice.
DNA Fingerprinting
DNA testing is nowadays regularly applied and extensively cherished as a
mode of detection in criminal investigations and to confirm paternity and
maternity. DNA is an abbreviation for “deoxyribonucleic acid”. It is the chemical
name for a gene which is found in every cell in the body carrying genetic
information passed from one generation to the next. The chemical composition
of DNA is different in each person except monozygotic twins. It can be extracted
from a wide range of sources, including blood, hair, bone, teeth, saliva, semen,
skin, sweat, urine, etc. The highest advantage of DNA information is that it cannot
be altered or damaged. DNA evidence does not decay or disappear over time.
However, even in the absence of particular law relating to DNA in India, Sections
53, 53A and 54 of the Cr.P.C. brings provision relating to DNA tests which can
widely be used in justice delivery system. DNA fingerprinting is essentially a
biological tool which discloses the gene information of an individual providing
an adequate proof against suspects or criminals when matched with DNA samples
collected from crime scene.1 DNA information has been used in a number of
significant cases in India. For instance, the Priyadarshini2 Matto rape and murder
case, Naina Sahani3 tandoor and murder case, the Rajiv Gandhi4 assassination
case, and N.D. Tiwari Paternity case.5
Admissibility of Scientific Evidence
Law of evidence allows the expert to give opinion evidence of the facts
related to a fact in issue or to related fact. The Judge is not supposed to be
proficient in all the areas particularly where the area under discussion involves
scientific and technological perceptive. He is not proficient of depicting
conclusion from the particulars that are extremely technical. In these conditions
he needs the aid of an expert who is believed to have advanced knowledge in

1 Anshu Jain, ‘DNA Technology and its Impact on Law’, Nalsar Law Review, Vol. 3, No. 1, 2006-2007,
p. 42.
2 Sidhartha Vashisht @Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352.
3 Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317.
4 Union of India v. V Sriharan@ Murugan AIR 1999 SC 2640.
5 2012 (2) R.C.R. (Criminal) 889.
2017] DNA Fingerprinting: An Analysis of Prevailing Scenario 29

connection to the subject matter. This ability formulates the expert’s opinion
admissible in that particular case although he is no way associated to the case.
Scientific DNA evidence, which is accepted in the Court, have to not only be
relevant but also reliable.
In India, Section 45 of the Indian Evidence Act 1872 includes the
requirement of expert opinion. An expert eyewitness is one who is skilful, trained
and experienced in any particular art, trade or profession, by making a special
study of the area under discussion. The tasks of an expert are to present required
scientific standard for testing the accurateness of his conclusions in order to
facilitate judges to form their independent judgment by the appliance of these
standards to the particulars established in support. The expert opinion, if lucid,
compelling and tested, turns out to be a significant issue for consideration among
other evidences of the case. The result of scientific tests will not be in terms of a
straight forward ‘yes’ or ‘no’, but will be a ‘match probability’ or ‘likelihood
ratio’. Because of the fact that scientific technology is rather new and the
techniques through which the results are offered to the court are new, there is an
unquestionable need for expert testimony. An expert witness may give his
opinion, but the court is free to draw its own conclusions. The court is not bound
to follow blindly the opinion of the expert. Section 27 says, “when any fact is
deposed to as discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved.” It says that any information collected
from DNA tests can apparently be used for gathering other evidences.
In courts in the United States of America, two major standards exist for
deciding whether scientific evidence to be admitted into evidence has fulfilled
two major criteria viz., the general acceptance test and the sound methodology
standard. In United States, the Court of Appeals in 19236 determined that every
scientific presumption to be acceptable in Court ought to be generally accepted
by the related scientific society. However, the decision in Daubert v. Merrell Dow
Pharmaceuticals7 changed the landscape of scientific evidence admissibility. In
Daubert’s case, the Court held that the Frye rule of general acceptance should not
be a compulsory clause for the acceptability of scientific facts under Rule 702 of
the Federal Rules of Evidence, which puts emphasis on the principle that expert
testimony should rest on a reliable foundation. In this case, the court said that, the
judge would assume the role of a gate keeper and certify that all scientific facts
that were admitted were both relevant and reliable. To confirm whether the
scientific evidence is admissible the court may regard as:
(i) Whether the scientific technique has been reliably used;
(ii) Whether the scientific theory has been subjected to peer review and
publication;
(iii) Its known or potential rate of error;
(iv) Whether there are recognized principles that control the practice of
implementation of the technique;

6 Frye v. United States 293 F. 1013 (DC Cir. 1923).

7 509 U.S. 579 (1993).
30 Contemprory Law Review [Vol. 1

(v) Whether the theory is generally accepted by a related scientific

community; and
(vi) Whether the technique was introduced or conducted independently of
the litigation.
Judicial Interpretation
Till date DNA evidence has been denied by the courts in order to disprove
the parenthood of the child keeping in view the adverse bearing it shall have upon
the future of the child. Even if the end result of an authentic DNA report is
assumed to be technically true, the Court rejected DNA evidence by observing
that it is not sufficient to get away from the conclusiveness of Section 112 of the
Act, for instance, if a husband and wife were residing together during the time of
conception but the DNA test revealed that the child was not born to the husband,
the conclusiveness in law would remain irrebuttable. This might seem harsh from
the point of view of the husband who would be required to accept the fatherhood
of a child of which he may be above suspicion. But in such cases the law bends
in favour of the innocent child from being bastardised if his mother and her
husband be residing together during the time of conception.8
Nevertheless, the court held in Nandlal Wasudeo Badwaik v. Lata Nandlal
Badwaik9 that Section 112 of the Evidence Act was passed at a point whilst the
contemporary scientific innovations and DNA tests were not even in
consideration of the Parliament. Even though Section 112 elevates a presumption
of conclusive proof on fulfilment of the requirements specified in it but this
presumption can be rebutted by proving non access when the child could have
begotten. Interest of justice is best served by establishing the fact and the court
ought to be equipped with the preeminent existing science and might not be left
to depend upon presumptions, unless science has no counter to the facts in issue.
When there is a disagreement amid a conclusive proof imagined under law and a
confirmation based on scientific innovation established by the world community
to be acceptable, the later must prevail.10 The husband’s claim that he had no
access to the wife when the child was begotten stands established by the DNA
test details and in the facade of it; we cannot force the litigant to stand the
paternity of a child, when the scientific reports prove to the contrary. We are
aware that an innocent child may not be bastardized as the marriage amid her
mother and father was existing at the point of her birth, but in view of the DNA
test reports and what we have examined over, we cannot preclude the effect. It is
refuting the truth.11
In Goutam Kundu v. State of West Bengal,12 the court has set clear guiding
principles concerning DNA tests and their acceptability to confirm paternity.
These are:
(i) That the courts in India cannot order blood test as a matter of routine.
(ii) Wherever applications are made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.

8 Kamti Devi v. Poshi Ram (2001) 5 SCC 311, para 10.

9 (2014) 2 SCC 576.
10 Ibid. para 13.
11 Ibid. para 14.
12 (1993) 3 SCC 418.
2017] DNA Fingerprinting: An Analysis of Prevailing Scenario 31

(iii) The court must carefully examine as to what would be the consequence
of ordering the blood test; whether it will have the effect of branding a
child as a bastard and the mother as an unchaste woman.
(iv) No one can be compelled to give sample of blood for analysis.
The Delhi High Court in Rohit Shekhar v. Narayan Dutt Tiwari13 has held
that a court’s order directing an individual to undertake DNA test is not a violation
of the right to life, or privacy. A person can be directed by the court to undergo
DNA test to determine paternity and direction in this regard should not be made
in a routine manner but it can be issued only after the test of eminent need is
satisfied. It was also held that the court is not obliged to describe adverse
inference in case of refusal of a direction for DNA testing.
Committee’s and Commission’s Recommendations
Justice V.S. Malimath Committee on ‘Reforms of the Criminal Justice
System’ also recommended that DNA expert be included in the list of experts
under Section 293(4) of Code of Criminal Procedure, 1973. Committee Report
also recommended for amendment of Section 482 of Cr.P.C.,1973, in the
following lines: “Every Court shall have inherent power to make such orders as
may be necessary to discover truth or to give effect to any order under this Code
or to prevent abuse of the process of court or otherwise to secure the ends of
justice”.
By using this provision, the Court will be better equipped with more powers
of investigation like the Courts of Inquisitorial system. DNA testing can also be
carried out with the help of this provision. Section 313 of Cr.P.C, be required to
be modified so as to draw adverse presumption against the accused, if he fails to
reply any related material against him. The committee also recommended for
amendment of Identification of Prisoners Act 1920 to authorize the Magistrate to
empower collecting from the accused hair, saliva, semen, blood sample etc. for
DNA testing. The Law Commission of India in its 37th Report established that to
support successful investigation, stipulation has been prepared empowering an
assessment of an arrested person if he has reasonable grounds to believe that such
assessment will provide evidence as to commission of an offence. The Law
Commission of India in its 185th Report has suggested changes to the section 112
of the Indian Evidence Act for the inclusion of DNA test in the part of section by
broadening the criteria. The Law Commission recommended that the person
refusing to undergo DNA test should not be allowed to take a defensive stand that
he is not the father and that an adverse inference can be drawn if a party refuses
to undergo a DNA test.
DNA Database
DNA technology has been a most important hit and the DNA database is the
tool of DNA technology facilitating the law enforcement in identification of
individuals. DNA databases can give distinct results as one can change his name,
his appearance, but not DNA profile that could confirm or deny a person's
presence. If DNA profiles were stored in DNA databases, DNA information could
be applied in crime without suspect that could be used as an aid for law

13 (2012) 12 SCC 554.

32 Contemprory Law Review [Vol. 1

enforcement agency to search for suspects. Therefore, DNA database is a need of

the hour. Every country must take a step forward to establish DNA database as
the establishment of databases containing DNA profiles (such as in the United
Kingdom’s National DNA Database) have greatly improved law enforcement
agencies’ power to fight crimes.
Conclusion
DNA fingerprinting has now emerged as a robust and reliable technique. It
is an incredibly significant development helping the experts to solve crimes which
were not feasible to solve earlier. These developments saved countless lives. We
ought to have faith in scientific techniques, which is extremely important for
public at large; there are loads of existing instances, which confirms that it in
reality assists the general public. It has been accepted in the U.S. in a number of
high profile cases, like for instance, O.J. Simpson’s case which was decided
mainly on the basis of DNA evidence. In India too, DNA evidence has been relied
on in number of case, such as, Priyadarshini Matto14 rape and murder case,
Goutam Kundu15 case, etc. Generally, the courts across the world have
increasingly accepted DNA evidence as admissible if it produces a trustworthy
and reliable result. The process of DNA Fingerprinting is not under dispute
throughout the world. The dispute only revolves around the issues raised in
relation to standardisation of laboratory procedures and problems of possible
technical or human errors. Government should take necessary steps for
standardising the laboratory procedures. Once standards monitoring laboratory
procedure are set, the disputes to the admissibility of the DNA evidence are
expected to be narrowed than they are at this time since the only issue that stays
on is if benchmark principle has been adhered to or not.

****

14 Sidhartha Vashisht @Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352.
15 Goutam Kundu v. State of West Bengal 1993 AIR 2295.
 ENVIRONMENTAL JUSTICE IN INDIA AND ROLE OF
NATIONAL GREEN TRIBUNAL
Naresh Kumar Vats & Urmil
ABSTRACT
In the globalizing world the increasing competition of
establishment of more and more industries and use of
comfortable has led to the degradation of global environment.
Every state is in race of strengthening economic on the cost of
environmental degradation, however, the priority in the last
decade had gradually shifted to protection of environment. The
rise of environmental issues increased after the very well-known
interpretation of the judiciary saying that ‘Right to clean and
healthy environment’ is part of our fundamental rights and is
interpreted within the scope of Article 21 of the Constitution of
India and which led to the establishment of Environmental
Courts and there is a need for speedy justice for environmental
protection and to reduce the burden on the High Court’s which
were not able to do quick disposal of cases involving
environmental issues as they were over burdened by cases. The
incidence like Bhopal gas tragedy and mushrooming of
industries as well as builders unauthorized without caring the
proper provisions of adequate space utility, disposal of emission
from the industries, and disposal of garbage are the emerging
issues and needs to be taken care properly. The sports as well
as health related issues where such products are used and
thrown without proper disposal action like construction of
latrine and use of Chinese Manja.
________________________________________________
Keywords: Environmental Court, Rio de Janerio Summit,
National Environment Protection Authority, Manja, Garbage.
Introduction
The Constitution of India through its directive principles of state policy made
the provisions that “Protection and improvement of environment and
safeguarding of forests and wild life The State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the
country”.1 The implementation of directive principles of state policy immediately
after independence was a difficult task for government being inherited of many
other problems that were given priority over the environment. To overcome the
basic problems of poverty, illiteracy, unemployment and to provide basic health
care facilities, environment issues were not given that much importance. In order
to increase the production and strengthening the economy, more and more

 Professor of Law and Chairman, Centre for Post Graduate Legal Studies, Maharashtra National Law
University, Nagpur, e-mail: [email protected].
 Scholar, Kurukshetra University, Kurukshetra (Haryana).
1 Article 48A, of the Constitution of India.
34 Contemprory Law Review [Vol. 1

industries were set up. Consequent to this step which has led to degradation of
environment at a large scale in India and the priority since last decade had
gradually shifted to ‘protection of environment’.
The Supreme Court of India suggested for establishment of environmental
courts on the basis of locality with judges and experts keeping in mind to deal
with complex environmental issues to achieve the above target. As a result, this
will lead for speedy justice and environmental protection as well as reduce the
burden of the High Courts which were unable dispose of environmental issues
speedily. Consequent to this, the National Green Tribunal (NGT) was founded on
18th October, 2010 under the National Green Tribunal Act 2010 for speedy justice
of environmental issues.
India is the third country following Australia and New Zealand to have such
unique system for protection of Environment. The NGT is a special fast-track
quasi-judicial body comprising of judges and environment expert who will ensure
expeditious disposal of cases.2 The traditional approach to deal with
environmental pollution had been criminal sanctions in India. The very strict
evidentiary requirements for criminal conviction often resulted in situations
where the polluter walked free. The proper execution of penalty to the polluters
was manifested in the form the National Green Tribunal Act 2010. The Act
consist of the provisions where the aggrieved can approach for redress in the form
compensation as if in a civil court. It was predicted that the formation of the
Tribunal will result in the development of the relatively new field of
environmental forensics in India. This is because; both the contending parties will
have to prove their claim in the Tribunal for which they will require the help of
environmental forensic experts.3
Indian Courts dealt with the environmental issues by the means of writs and
PILs, but the technicality was missing from the judiciary as expertise knowledge
is must to decide environmental issue. The rise of environmental issues increased
after the very well-known interpretation of the judiciary saying that “Right to
clean and healthy environment” is part of our fundamental rights and is
interpreted within the scope of Article 21 of the Constitution of India. Number of
Public Interest Litigations filed by M.C Mehta where the judiciary has taken very
necessary stand point for the protection of environment. The Courts directed
expert committees if any environmental issue knocks the Court of Law, but the
report of expert committee was not interpreted in technical terms which is very
essential. In cases like, M.C. Mehta v. Union of India;4 Indian Council for
Environmental-Legal Action v. Union of India;5 A.P. Pollution Control Board v.
M. V. Naidu;6 A.P. Pollution Control Board v. M. V. Naidu II,7 the Supreme Court
has stressed on the point that it is a very important and prominent time to set up

2 Jayashree Khandare, ‘Role of National Green Tribunal in Protection Environment’, Paripex-Indian

Journal of Research, December, 2015, p. 4.
3 Muhammed Siddik Abdul Samada et al, ‘Environmental Forensics in India –Four Years After the
National Green Tribunal Act, 2010’, Proceeding Environmental Sciences 30 (2015) pp. 91-96,
available at www.sciencedirect.com.(visited on December 11, 2016).
4 1987 AIR 965: 1986 SCR (1) 312.
5 1996 AIR 1446.
6 AIR. 1999 SC 812.
7 (2001) 6 SCC 62.
2017] Environmental Justice in India and Role of National Green Tribunal 35

‘Environmental Courts’. The 186th report of Law Commission of India also

emphasized on starting of environmental courts in the light of the 3rd case
judgment from the above cited cases. The report also referred to countries like
England, Australia, and New Zealand etc. where Environmental Courts have been
started.8 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 along with establishment of The National
Green Tribunal (NGT).9 Justice Swatanter Kumar while chairing the National
Green Tribunal (National Green Tribunal) stated in an interview to ‘Down to
Earth’, that basic issues are still confronting the tribunal.
Establishing Environmental Courts in India
During the Rio de Janerio Summit of United Nationals Conference on
Environment and Development in June 1992, India vowed the participating states
to provide judicial and administrative remedies for the victims of the pollutants
and other environmental damage. There lie many reasons behind the setting up
of this tribunal such as after India’s move with Carbon credits, tribunal may play
a vital role in ensuring the control of emissions and maintaining the desired levels.
This is the first body of its kind that is required by its parent statute to apply the
‘polluter pays’ principle and the principle of sustainable development.10 This
court can rightly be called ‘special’ because India is the third country following
Australia and New Zealand to have such a system.11
It was a result of long procedure and the demand for such tribunal started
long back in the year 1984 after the Bhopal gas tragedy. Then the Supreme Court
specifically mentioned the need for such tribunals in the case where the gas leaked
from Shriram food and fertilizers limited in Delhi. The Supreme Court then in a
number of cases highlighted the difficulty faced by judges in adjudicating on
complex environmental cases and laid emphasis on the need to set up a
specialized environmental court. Though the credit for enacting the NGT Act,
2010 goes to the then Environment Minister, Jairam Ramesh, it became
functional only because of repeated directions of the Supreme Court while
hearing the Special Leave Petition titled Union of India v. Vimal Bhai.12 The
National Green Tribunal Act, 2010 opens with “An Act to provide for the
establishment of a National Green Tribunal for the effective and expeditious
disposal of cases relating to environmental protection and conservation of forests
and other natural resources including enforcement of any legal right relating to
environment and giving relief and compensation for damages to persons and
property and for matters connected therewith or incidental thereto”.13

8 Assessment of Working of National Green Tribunal with special reference to the cases from Gujarat
and Western Region Bench of Pune, June 2014.
9 National Green Tribunal Bill, 2008 has been referred to a parliamentary standing committee.
10 National Green Tribunal Act, available
athttps://en.wikipedia.org/wiki/National_Green_Tribunal_Act, (visited on December 12, 2016).
11 Ibid.
12 (2009) DLT. 477.
13 The National Green Tribunal Act (No. 19 of 2010).
36 Contemprory Law Review [Vol. 1

Law Commission of India 186th Report

The environmental Courts were advocated in two earlier judgments also. One
was M.C. Mehta v. Union of India14 where the Supreme Court said that in as much
as environment cases involve assessment of scientific data, it was desirable to set
up environment courts on a regional basis with a professional Judge and two
experts, keeping in view of expertise required for such adjudication.
(i) The Law Commission in its 186th Report has, inter-alia, recommended
establishment of ‘Environment Court’ in each State, consisting of
Judicial and Scientific experts in the field of environment for dealing
with environmental disputes besides having appellate jurisdiction in
respect of appeals under the various Pollution Control Laws.
(ii) The Commission has also recommended repeal of the National
Environment Tribunal Act 1995 and the National Environment Appellate
Authority Act 1997.
(iii) To achieve the objective of Article 21, 47 and 51A (g) of the Constitution
of India by means of fair, fast and satisfactory judicial procedure.
(iv) ‘Environment Courts’ should be constituted in each State, and also stated
that as under Article 253 read with Entry 13 list I of VII that the
parliament has exclusive jurisdiction to enact law for the purpose of
establishment.
(v) Emphasis on Stockholm declaration and the conference at Rio de Janeiro
of 1992.
(vi) No powers of Judicial review to High Court as under Article 226, but
there can be provision for appeal to the Supreme Court under Article 32.
(vii) These Courts must be established to reduce the pressure and burden on
the High Courts and Supreme Court. These Courts will be Courts of fact
and law, exercising all powers of a civil court in its original jurisdiction.
(viii) They will also have appellate judicial powers against orders passed by
the concerned authorities under the Water (Prevention and Control of
Pollution) Act 1974; Air (Prevention and Control of Pollution) Act 1981
and The Environment (Protection) Act 1986 with an enabling provision
that the Central Government may notify these Courts as appellate courts
under other environment related Acts as well.
(ix) The environmental court shall consist of a chairperson and at least two
other members each. Environmental court shall be at least three scientific
or technical experts known as commissioners.
(x) The Court shall not be bound to follow Civil Procedure Code and the
rules of Evidence under the Indian Evidence Act 1872.
(xi) The Court should follow the principles of natural justice, and should
apply the principles/doctrine of strict liability Ryland’s v. Fletcher15 /
Bhopal Gas Tragedy,16 polluter pays, doctrine of public trust, etc.

14 1986(2) SCC 176, p. 202.

15 (1868) UKHL 1.
16 Union Carbide Corporation v. Union of India AIR 1992 SC 248, 261; AIR 1999 SC 1248, 309.
2017] Environmental Justice in India and Role of National Green Tribunal 37

(xii) The locus standi before the court shall be as wide as it is before the High
court/Supreme court. That means that any member for the cause of many
can stand before the court of law.
(xiii) The powers of High Court under Article 226 and Supreme Court under
32 shall not be ousted.
Thus, a very specific and realistic approach was drawn in the 186th report of
the Law commission of India with respect to the formulation of Environment
courts.17
Structure of National Green Tribunal Act 2010
After the NGT Act 2010, the Principal Bench of the NGT has been
established in the National Capital-New Delhi, with regional benches in Pune
(Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench)
and Kolkata (Eastern Bench). Each Bench has a specified geographical
jurisdiction covering several States in a region. There is also a mechanism for
circuit benches, i.e., the Southern Zone bench, which is based in Chennai, can
decide to have sittings in other places like Bangalore or Hyderabad.
The appointment of Chairperson of the NGT will be a retired Judge of the
Supreme Court, seating in Delhi. Other Judicial members are retired Judges of
High Courts. Each bench of the NGT will comprise of at least one Judicial
Member and one Expert Member. Expert members should have a professional
qualification and a minimum of 15 years’ experience in the field of
environment/forest conservation and related subjects.18
Jurisdictional status of NGT Act
The NGT has the power to hear all civil cases relating to environmental issues
and questions that are linked to the implementation of laws listed in Schedule I
of the NGT Act which include–“The Water (Prevention and Control of Pollution)
Act 1974; The Water (Prevention and Control of Pollution) Cess Act 1977; The
Forest (Conservation) Act, 1980; The Air (Prevention and Control of Pollution)
Act 198; The Environment (Protection) Act 1986; The Public Liability Insurance
Act 1991 and The Biological Diversity Act 2002.”19
Powers of the Tribunal
National Green Tribunal has conferred with power to hear all civil matters
which are related to environment and questions regarding the enforcement and
implementation of laws which fall under these categories of laws mentioned
above in schedule-I.20
The NGT has the power to regulate the procedure by itself and does not
follow the principles of civil procedure code and rules of evidence instead it
follows principles of natural justice and apply the principals of sustainable
development where “Polluter Pay Principle” as applied. It will have the same
power as of the civil court in deciding the matter falling within these seven legal
acts. NGT does not admit anything which is not covered under above enactment

17 Law Commission of India 186th Report, “Proposal to Constitute Environment Court”, September,
2003.
18 Praveen Bhargav, ‘Everything you need to know about the National Green Tribunal (NGT)’, available
at http://www.conservationindia.org/resources/ngt (visited on December 13, 2016).
19 Ibid.
20 The National Green Tribunal Act 2010 (19 of 2010).
38 Contemprory Law Review [Vol. 1

mentioned in Schedule-I. The major drawback of this limitation is that a person

cannot approach the NGT for every environmental issue like NGT cannot admit
a suit for cutting of trees in a forest even though it is related to environment.
The major benefit with NGT is that it has a strong order enforcing
mechanism. If the orders of NGT are not complied with then it has the power to
impose both punishment as well as fine. The punishment is up to three years and
the penalty is up to rupees ten crore and for firms in can extend up to rupees
twenty-five crores. Also the director or manager of the firm can be punished or
penalized if it is found by the tribunal that the offence has been committed on the
orders or with the consent of such officer of the firm.
Need for an Environmental Tribunal
Keeping in view a large number of pending environmental cases in the courts
and involving the complex issues of facts of science and technology, the 17th Law
Commission of India, through its 186th report, recommended the constitution of
Environmental Courts at State level as its original jurisdiction for issues and
appellate authorities under the environmental statutes. These courts were also
recommended to include technical members. The recommendation was pursuant
to the observation of the Supreme Court in these judgments, viz., M.C. Mehta v.
Union of India;21 Indian council of Environmental–Legal Action v Union of
India;22 AP Pollution Control Board v. M.V. Nayudu;23 AP pollution control
board v. MV Nayudu-II.24 The recommendation of the Law Commission were
implemented to redress environmental problems of the country in conformity
with the National Environmental Policy, 2006, which led to the establishment of
National green tribunal (NGT) on 18th October 2010 under the National Green
Tribunal Act 2010.25 The purpose of the Act is to fulfil the obligation of India
towards Stockholm declaration, 1972. Sections 4, 14, 15, 17, 19 and 26 of the
NGT Act are of considerable significance to environmental forensics.26
Key Verdicts
The current Indian practice of handling scientific sensitive environmental
issues has to be understood before discussion over the role of the tribunal and
decision-makers. A change may be necessary on a comparative level.27 As Lord
Woolf asks, is the judiciary environmentally myopic?28 Environmental
legislations were enacted on the basis of the shared legislative authority, and other
constitutional provisions. Environmental protection was not mentioned in the
original Constitution and was later introduced as a directive principle of state

21 1986 (2) SCC 176.

22 1996 (3) SCC 212.
23 1999 (2) SCC 718.
24 2001 (2) SCC 62.
25 Muhammed Siddik Abdul Samada et al, ‘Environmental Forensics in India–Four Years After the
National Green Tribunal Act, 2010’, Procedia Environmental Sciences 30 (2015) 91-96, available at
www.sciencedirect.com. (visited on December 11, 2016).
26 Ibid.
27 Sridip Nambiar, ‘Paradigm of ‘Green’ Adjudication: Developing Principles for Indian Environmental
Decision making in Disputes involving Scientific Uncertainty’, 1 ILI law Review 1, 25 (2010).
28 Lord Woolf, ‘Are the Judiciary Environmentally Myopic?’, 4(1) Journal of Environmental Law (1995).
2017] Environmental Justice in India and Role of National Green Tribunal 39

policy29 and as a fundamental duty30 by way of an amendment. Every citizen is

entrusted with a duty to protect the environment. The very 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 that 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 is 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.31 It
was then included within the ambit of the ever-growing ‘right to life’. The scope
of right to environment within the right to life was then developed to include right
to clean water,32 clean air33 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.34 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.
In POSCO case,35 the NGT asked the Environment Ministry to review
clearances after some local villages refused to consent to the project under the
pro-tribal Forest Rights Act, 2006. Officials say the requirement of mandatory
consent from the gramsabha for initiating any project is the biggest hurdle in
pushing infrastructure development in mineral rich, poor regions. The NGT has
repeatedly rejected the views of its nominal master, the Ministry of Environment
and Forests (hereinafter referred to as ‘MoEF’). It has criticized the Ministry for
poor decisions or actions and has been frequently resorted to by civil society
groups seeking and getting relief from environmentally irresponsible actions of
the government. Before the NGT was enacted, some environmental disputes were
referred for settlement to the woefully ineffective National Environment
Appellate Authority (hereinafter referred to as ‘NEAA’). This body was created

29 Ibid., Article 48a, inserted by Constitution (Forty-second amendments) 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.”
30 Ibid., Article 51a (g) of the Constitution of India 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.”
31 AIR 1991 SC 420.
32 Susheta v. State of Tamil Nadu (2006) 6 SCC 563.
33 Murli Deora v. Union of India (2001) 8 SCC 765.
34 Jona Razzaque, ‘Public Interest Environmental Litigation in India’, Pakistan and Bangladesh (2004).
35 Prafulla Samantray v. Union of India, Appeal No. 8 of 2011 dated 30-3-2012.available at
http://www.wwfindia.org/about_wwf/enablers/cel/national_green_tribunal/case_summaries/?7945/P
raffula-Samantra-Vs-Union-of-India-and-Others (visited on January 3, 2015).
40 Contemprory Law Review [Vol. 1

by the Parliament in 1997.36 The NEAA Act created a body that mainly dealt with
environmental clearances, and was always under MoEF’s thumb. The Parliament
of India, recognizing the need for the speedy and expeditious disposal of
environmental cases, especially in light of the burden of pending litigation,37
established the NGT in 2010, which has superseded NEAA.
The NGT applied the principles of sustainable development, the
precautionary principle and the polluter pays principles while passing
Orders/decisions/awards. The case of MP Patil v. Union of India38 wherein the
Tribunal examined the details of the basis on which environmental clearance was
obtained by the National Thermal Power Corporation Ltd. (hereinafter referred
to as ‘NTPC’). It was found that NTPC was guilty of misrepresenting facts to
obtain the environmental clearance. Additionally, in this case the tribunal stressed
on the importance of a Rehabilitation and Resettlement Policy that adequately
took into consideration the needs of those affected by the project. In determining
who would fall within the ambit of such persons, the tribunal chose an expansive
definition instead of restricting it only to the land owners in the region. Finally, it
was reiterated that the burden of proving that the proposed project was in
consonance with goals of sustainable development was on the party proposing
the project. Hon’ble Apex Court held in TN Govandaraman Thirumulpad v.
Union of India 39 that “Environmental justice could be achieved only if we drift
away from the principle of anthropocentric to ecocentric. Many of our principles
like sustainable development, polluter-pays principle, intergenerational equity
has their roots in anthropocentric principles. Anthropocentrism is always human
interest focussed and that non-human has only instrumental value to humans. In
other words, humans take precedence and human responsibilities to non-human
based benefits to humans. Ecocentrism is nature-centred where humans are part
of nature and nonhumans have intrinsic value. In other words, human interest
does not take automatic precedence and humans have obligations to non-humans
independently of human interest. Ecocentrism is therefore life-centred,
naturecentred where nature includes both humans and nonhumans.”
The NGT’s Principal Bench gave its verdict in Braj Foundation v. Govt. of
U.P.40 that the Government should be directed to execute the Memorandum of
Understanding (MoU) for the aforestation of Vrindavan forest land, which was
brought forth by the Braj Foundation. The Tribunal gave the verdict against them,
holding that the MoU is not legally enforceable and decided that the
advertisement issued by the Forest Department was only an ‘invitation to treat’
which could not be a ground to enforce contractual obligations. Thus, the
Government was allowed to continue with its policy decision of taking up the
aforestation work on its own, especially since involvement of third parties would
give rise to the possibility of illegal mining and encroachment. However, the

36 National Environment Appellate Authority Act 1997 (Act 22 of 1997).

37 Performance Report of the 15th Loksabha MPs (on the floor of the house) Fifteenth Lok Sabha Debate,
Lok Sabha Debates, (30-4-2015), available
at<http://164.100.47.132/LssNew/psearch/Result15.aspx?dbsl=2380 (visited on December 2, 2016).
38 2014 All (I) NGT Reporter (1) (Del) 113.
39 Para 17, (2012)3 SCC 277.
40 Application No. 278/2013 and M.A. No. 110/2014 before Principal Bench, Delhi.
2017] Environmental Justice in India and Role of National Green Tribunal 41

Tribunal also went a step forward and gave directions to the Government itself to
ensure proper aforestation. One of the most significant was the direction to
declare that at least a 100-meter-long stretch on both sides of the Braj Parikrama
route as a ‘no development zone’.
In Vardhaman Kaushik v. Union of India,41 the tribunal took cognizance of
the growing pollution levels in Delhi. It directed a Committee to prepare an action
plan and in the interim, directed that vehicles more than 15 years old not be
allowed to ply or be parked off the roads; burning of plastics and other like
materials be prohibited. A web portal and a special task force be created as well
as sufficient space for two-way conveyance be left on all market- roads in Delhi
and similarly cycle tracks be constructed. The overloaded trucks and defunct
buses not be allowed to ply and air purifiers and automatic censors be installed in
appropriate locations.42 NGT directed that a fine of Rs. 1000 be levied on all cars
parked on metalled roads and the multi-level parking be construed in appropriate
areas.
In another decision wherein the importance of proper analysis and collation
of data and application of mind by the EAC was stressed upon and the questions
of the jurisdiction of the Tribunal have also been fairly recurrent by the NGT in
case of T. Murugandam v. Ministry of Environment and Forests.43
In Kalpavriksh v. Union of India44 the Tribunal ruled that its jurisdiction
extends to all civil cases which raise the substantial question of environment and
arise from the implementation of the Acts stated in Schedule I of the NGT Act.
The inference drawn from the term ‘implementation’ which must neither be too
constrained nor expansive, keeping in view of all the Notifications, Rules and
Regulations promulgated under the Act. Again in Tribunal at its Own Motion v.
Ministry of Environment & Forests45 it was held that wildlife is a part of
environment and any action that causes damage or is likely to cause damage to
wildlife, could not be excluded from the purview of the tribunal. The Tribunal
has also given detailed directions in decisions involving contamination and
pollution of river waters. For instance, in Krishan Kant Singh v. National Ganga
River Basin Authority46 the Tribunal gave a range of time bound and specific
directions to the polluting industrial units as well as the Municipal authorities
who were asked to allow the former to comply with directions. In another, Manoj
Misra v. Union of India47 the Tribunal gave a set of twenty eight directions,
ranging from prohibition on dumping debris to restricting silviculture and
floriculture activities, in the interest of protecting and restoring the River
Yamuna. One such case was Samata v. Union of India48 in which the Tribunal
relaxed the concept of locus standi to allow a wider base of people to approach it
with regard to environmental concerns. It was found that in the relevant

41 2014 All (1) NGT.

42 Ibid.
43 Appeal No. 17 of 2011(T), NEAA no. 20 of 2010.
44 Application No 116 (THC) of 2013.
45 237 (THC)/2013, Original Application No. 16 of 2013 (CZ) dated April 4, 2014.
46 Application No. 299 of 2013 dated 31-5-2014.
47 Original Application No. 6 of 2012 and MAs Nos. 967 of 2013 & 275 of 2014 dated 13-1-2015.
48 Judgment of the NGT, dated 13 December 2013 in Samata v. Union of India Appeal No. 9 of 2011,
NEAA Appeal No. 10 of 2010 dated 13-12-2013.
42 Contemprory Law Review [Vol. 1

provisions the term ‘aggrieved persons’ would include not just any person who is
likely to be affected, but also an association of persons likely to be affected by
such an order and functioning in the field of environment. The other issue in this
case was whether the public hearing had been conducted if the Environmental
Impact Assessment (hereinafter referred to as ‘EIA’) report had not been
published in the local language. The Tribunal found that there was no such
requirement imposed; however, in the same breath it mandated the Expert
Appraisal Committee to act in light of the public’s larger interests and work to
balance developmental and environmental concerns. As in Samata,49 the South
Zone bench emphasized the importance of the principles of precautionary
principle and sustainable development in the KK Royson case.50 Again in this
case we witness the relaxation of locus standi requirements. The Bench held that
where the matter concerned the ecology and the environment, everybody was
directly or indirectly affected and thus, the right to initiate action could not be
limited only to persons who were actually aggrieved. Other issues that the Court
examined in this case were that of an unqualified agency giving approval and of
the requirements of conducting public hearing according to the EIA Notification,
2006.51
On September 3, 2014, the Principal Bench of the National Green Tribunal
(NGT) at New Delhi passed a landmark judgment that, for the first time wherein it
brought an important principle of “town planning” within the scope and jurisdiction
of the Act. NGT in its judgment in the matter of Sunil Kumar Chugh v. Secretary,
Ministry of Environment and Forests, New Delhi,52 held that “open spaces,
recreational grounds and adequate parking facilities in buildings had an important
bearing on the right to life of people.”
The Court expanded the right to life of citizens in urban India in a case Sunil
Kumar Chugh v. Secretary, Ministry of Environment and Forests, New Delhi,53
the General Principles and Rules of International Environmental Law. The boom
in India’s economic growth has resulted in mass urbanization on a scale rarely
witnessed in the history of mankind. The population of Tier-I and II cities has grown
exponentially in the last two decades as millions of peoples are seeking better
economic opportunities. However, this economic growth has come at a tremendous
cost to the quality of human life, as unplanned urban developments have
mushroomed and giving rise to pollution, congestion and diseases that has given rise
to living conditions which would be termed ‘miserable’ by western standards. Thus,
it’s not a surprise that Indian cities figured at the bottom of any quality of life survey
done at the international level.
The prime reason for this bleak state of affairs is visible everywhere due to
illegal constructions and developers blatantly violate development control
regulations that stipulate mandatory open spaces, recreation grounds, parking and
fire safety. Unscrupulous municipal officials look the other way and consequently,

49 Appeal No. 9 of 2011, NEAA Appeal No. 10 of 2010 dated 13-12-2013.

50 K.K. Royson v. Govt. of India, Appeals Nos. 172, 173, 174 of 2013 (SZ) and Appeals Nos. 1 and 19
of 2014 (SZ) and Appeal No. 172 of 2013 (SZ) dated 29-5-2014.
51 Ibid.
52 Appeal No. 66 of 2014.
53 Ibid.
2017] Environmental Justice in India and Role of National Green Tribunal 43

the right to life of citizens gets compromised. To make matters worse, the
enforcement of development control regulations was considered a municipal matter
and not as one falling within the scope of the term ‘environment’.
In an appeal by Sunil Kumar Chug an Ravinder Khosla against the developer
M/s Priyal Builder on march 25, 2015 at Bombay, stated that the builder had violated
the Environmental Impact Assessment Notification, 2006 by starting construction
without EC, way back in 2009. The developer continued construction without EC
for five years and the State Environmental Impact Assessment Authority (SEIAA)
of Maharashtra ignored this blatant violation and blindly granted EC to the builder.
It was further averred by the appellants that the developer did not provide any
recreation ground to the residents. Further, he did not provide any parking spaces for
the residents of the rehabilitation tenements, as a result of which, they were forced
to park on the street. This severely prejudiced their right to life under Article 21 of
the Constitution of India.
The case was heard by the principal bench at New Delhi, comprising Justice
Swatanter Kumar and Justice U.D. Salvi, along with Expert Members, D.K.
Agrawal and M.A. Yusuf. In its judgment, the bench held that the developer had
violated the EIA Notification, 2006 and the Environment Protection Act 1986 by
commencing construction without prior EC. Further, by not providing adequate
recreation grounds, the developer had severely prejudiced the right to life of the
appellants. Consequently, the bench held the developer liable for violating the law
and imposed a fine of Rs.3 Crore to be paid into the environmental relief fund
maintained under the Public Liability Insurance Act 1991. Further, taking note of
the fact that the developer had provided deficient recreation grounds to the residents,
the court directed that a further sum of Rs.32,63,600 be paid to the Maharashtra
Pollution Control Board (MPCB) for the deficient recreational area in the building.
The approved plan of the building was quashed and the builder was directed to
submit a fresh plan that would contain adequate parking for all residents of the
building and address the shortfalls.
During the court proceedings, the developer had claimed that prior EC was not
required as the ‘FSI Area’ (Floor Space Index or Floor Area Ratio) of the project
was less than 20,000 square meters, the prescribed statutory limit. He claimed that
the lift lobby and staircase area were exempt from the computation of built-up area
under the EIA Notification. The NGT strongly rejected this argument, stating that
the term ‘built-up area’ includes the entire construction area, saleable and non-
saleable. It further held that the 2011 amendment to the EIA notification which
clarified the term ‘built-up area’ was clarificatory in nature and would have a
retrospective effect from 2006 itself. The National Green Tribunal has questioned
the Uttar Pradesh government and its pollution control board over regulation of
tanneries on the banks of river Ganga in Kanpur, asking how they could regulate
them if their officials ‘can’t even enter their premises’. The NGT said industrial
effluents, which contain high chromium, emanating from tannery clusters were
polluting Ganga and even UP Pollution Control Board (UPPCB) was not aware
of the actual number of tanneries till now.54

54 Sandeep Rai, ‘NGT forms panel to check sewage joining Ganga through drains’, The Times of India,
October 20, 2016, New Delhi.
44 Contemprory Law Review [Vol. 1

The Government of Odisha has decided to seek consideration by NGT to

resolve the Interstate Water Dispute Act (IWDA) 1956 and to pursue its fights
against Chhattisgarh over the Mahanadi waters. The State of Odisha placed
Mahanadi issue also to be brought up to be considered in light of the main
principles on which National Green Tribunal functions including the principle of
sustainable development, the precautionary principle and polluter pays
principle.55
The National Green Tribunal (NGT) also expanded its wings pulling up the
Art of Living (AOL) Foundation for doing ‘wrong things’ wherein the Sri Sri
Ravi Shankar-led organisation had prevented, the expert panel from visiting the
Yamuna floodplains that hosted the World Culture Festival. The expert
committee was constituted by the NGT to inspect the venue, determine a
compensation amount and chart out a plan for rejuvenation after it found that the
festival hosted by AOL caused environmental damage at the site and upon
hearing, the expert committee also informed the NGT that the AOL was yet to
pay the initial compensation amount that the Tribunal had ordered it to deposit
within three weeks of its order.56
Analyses of Cases
Since, inception of the NGT the number of cases filed in the tribunal shows
that majority of the cases are related to the environmental clearances granted by
the Government to development projects. The Environmental Impact Assessment
Notification, 2006 mandates that certain categories of development projects get
environmental clearance from the government before the execution start. The
disputes related to the no objection certificates granted by the authorities to
projects like setting up of new industry, expansion of existing industry, new
power plants and the disputes related to the environmental clearance given by the
authority to different project like MSW treatment plant, landfills, etc. dominate
the case list before the Tribunal.57 The Table below shows the nature of cases
handled by the NGT.58
Table–1. Nature of case handles by National Green Tribunal (2010-2014)

Type of cases Percentage

Environmental Clearance & Related 41
Pollution 23
Conservation & Related 19
Others 17

55 ‘State Govt. files petition for setting up tribunal to settle Mahanadi river water dispute’, The New
Indian Express (November 21, 2016), available on
http://www.newindianexpress.com/states/odisha/2016/nov/21/state-govt-files-petition-for-
setting-up-tribunal-to-settle-mahanadi-river-water-dispute-1541115.html (visited on December
12, 2016).
56 Kedar Nagarajan, ‘World Culture Festival: NGT pulls up Sri Sri Ravi Shankar’s AOL for barring panel
from site’, The Indian Express (New Delhi, 22/4/ 2016), available at
http://indianexpress.com/article/india/india-news-india/world-culture-festival-ngt-pulls-up-sri-sri-
ravi-shankar-aol-for-barring-panel-from-site-2764691/ (visited on March 11, 2017).
57 Muhammed Siddik Abdul Samada, et al, ‘Environmental Forensics in India –Four Years after the
National Green Tribunal Act, 2010’, Procedia Environmental Sciences 30 (2015) 91 – 96, available at
www.sciencedirect.com (visited on December 11, 2016).
58 Sanjay Kumar, ‘Green Report’, 3 NGT International Journal on Environment, 2014, pp.108-118.
2017] Environmental Justice in India and Role of National Green Tribunal 45

The Table 2 shows the case disposal statistics of NGT as on 31-08-2014.This

indicates considerable improvement from past.59
Table-2. Case Disposal Statistics of NGT as on 31-08-2014
NGT Benches Year No. Disposed % of
of Disposed
Cases Cases
Principal Bench 2011 - 2014 2597 2073 79.8
Southern Bench November 2012 - 2014 1496 574 38.3
Central Bench April 2013 - 2014 1091 680 62.3
Western Bench August 2013 - 2014 387 271 71.1
Eastern Bench May 2014 46 15 31
Though one may not find the explicit usage of the terms ‘environmental
forensics’ in any of the judgments delivered by the Green Tribunal, cases where
the Tribunal has recommended environmental forensic investigation are many.
So are the cases where the Tribunal has relied on the results of environmental
forensic investigations to deliver its judgments.
In Raghunath S/o Rakhamji Lokhane v. MPWPB60 the Applicants have
demanded restitution of the environment, especially the groundwater
environment, polluted by the industries of Waluj industrial area of Maharashtra.
While investigations shown pollution of the groundwater system, the individual
industries shirked its responsibilities. The tribunal ordered the Maharashtra
Pollution Control Board (MCB), the government agency primarily responsible
for monitoring and controlling pollution in the State, to work out the remediation
cost with the help of experts and equitably distribute this cost on the polluters
after identifying their extent of responsibility in pollution. Clearly, an
environmental forensic investigation has to be initiated by MPCB to comply with
the order of the tribunal. Similar orders were issued in Janardan Pharande v.
MoEF61 and Vinesh Madanyya Kalwal v. State of Maharashtra.62
In Himanshu R. Barot v. State of Gujarat,63 the tribunal had sought the help
of the experts from a University to investigate the case of pollution by an industry.
Based on their report the industry was made to take actions to prevent pollution.
Moreover, the industry was made to pay rupees ten lakh being compensation in
general to be used for providing public facilities for the population surrounding
the industry who were the victims of pollution. But, in Ramubhai Kariyabhai
Patel v. Union of India.64 the tribunal itself collected relevant records and
monitoring data available with various regulatory agencies pertaining to an
accident that had happened a year back where hazardous waste was spilled to the
environment, and arrived at the best estimate of the damage that could have
happened at the time of spill. The operators were made to pay rupees twenty-five
lakh towards restitution of environment in addition to compensation for farmers.

59 Ibid.
60 Original Application No. 11/2013 (THC)(WZ)).
61 Original Application No. 7/2014 (THC) (WZ).
62 Original Application No. 30 (THC)/2013(WZ).
63 Original Application No. 109/ (THC)/2013.
64 Application No. 87/2013 (WZ).
46 Contemprory Law Review [Vol. 1

Along with the many examples of successful use of environmental forensics,

one also find cases where failure to take the forensic approach had resulted in the
Tribunal not entertaining claims. In, Godavari Magasvargiya Mastya Vyavsai
Sahakari Sanstha Mayradit v. The Ganga Sugar Energy Ltd.,65 the applicants
were not granted compensation for their loss of income from fisheries due to the
effect of pollution, because their claims were not legally established. Similarly,
in S. Munuswami v. The Chairman Tamil Nadu Pollution Control Board66 the
Tribunal did not entertain the Applicants’ request to order the Respondent
industry to re-mediate the pollution as it was not substantiated. Thus, it can be
said that the introduction of the National Green Tribunal has created a space for
environmental forensics in India.
The data, however, showed that environment-related crimes across the
country fell in 2015, with 5,156 offences compared to 5,846 incidents in
2014.Nearly 75% of all environmental crimes in India are reported from Uttar
Pradesh and Rajasthan, data released by the National Crime Record Bureau
(NCRB) on Tuesday showed. The total of 5,156 environmental crimes included
offences related to violation of the Indian Forest Act 1927, Wildlife Protection
Act 1972, Environmental (Protection) Act 1986, Air (Prevention & Control of
Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974.
Out of the total of 5,156 offences, 3,968 cases, which are nearly 77%, were related
to the violation of the Indian Forest Act 1927. However, with 829 cases, Wildlife
Protection Act was second on the list. Rajasthan with 2,074 cases topped the list
and was followed by Uttar Pradesh with 1,779 cases, Jharkhand with 233 cases,
Karnataka with 211 and Andhra Pradesh with 181 cases.67
The data also revealed that a total of 8,034 people were arrested across India
in 2015 on account of environmental crimes. In 2014, 8,765 persons were
arrested. Out of which 8,034 people, nearly 66% (5,327) were from Uttar Pradesh
(2,966) and Rajasthan (2,361) alone. The next highest number of people arrested
were from Andhra Pradesh with 1,095 people, Karnataka with 321 cases and 244
from Maharashtra. According to the data, most of the arrests in 2015, were total
of 6,344 people, for violation of the Indian Forest Act 1927, specifically for
illegal felling of trees or illegally moving forest produce.68
Pro-Active role of National Green Tribunal
NGT decision on Manja Ban- With the National Green Tribunal (NGT)
imposing an interim nationwide ban on use of glass-coated ‘Manja’ for kite
flying, the state government’s ban on stocking and sale of ‘Chinese Manja’ has
gained more weight. The State government has been banning Chinese Manja
since last two years which is a good step to enforce the ban. However, the
implementation will be a major challenge, PETA India’s government affairs
liaison Nikunj Sharma said the police need to gear up and take the responsibility.

65 Original Application No. 30/2013(WZ).

66 Original Application No. 152/2013(SZ).
67 Mayank Agarwal, ‘NCRB data reveals environment crimes decrease in India’, (last updated August
30, 2016)’ available at http://www.livemint.com/Politics/e0qy4ZGLns8DRbKdOxbYrM/NCRB-
data-reveals-environment-crimes-decrease-in-India.html, (visited on April 21, 2017).
68 Ibid.
2017] Environmental Justice in India and Role of National Green Tribunal 47

“The green court has not just banned nylon manja but also cotton threads coated
with glass or metal. This order is wider than the existing state government ban”.69
Order on Garbage Disposal
The National Green Tribunal’s direction against burning garbage is being
thrown to the winds as the Vrindavan Municipal Council continues to set fire to
local refuse. Garbage is also being indiscriminately dumped in trenches, situated
just a few meters away from the Yamuna riverbed on Maant Road. Garbage
generated in Vrindavan is not being taken to the designated site where it could be
disposed of safely. The site mentioned in an affidavit submitted to the Green
Court is not being used for garbage disposal at all. It should be noted that the
NGT previously charged Mathura’s District Magistrate a fine of Rs.5 lakh for
failing to prevent the dumping of solid waste on the banks of the sacred river
there. A fine of a similar amount was also imposed on the Vrindavan
Municipality, while the UP Pollution Board was fined one lakh rupees and the
UP State Government were fined fifty thousand rupees.
Earlier the NGT ordered an immediate ban on use of plastic and polythene in
Vrindavan. The district authorities have clearly been told to stop burning garbage
and make proper arrangements for solid waste disposal and the fines have been
imposed on several government agencies was confirmed by the report of a court
commissioner appointed by the Tribunal, who visited the garbage sites of
Vrindavan and collected photographic evidence to expose the truth.
The Vrindavan Municipal Council has filed a review petition in the Supreme
Court of India, appealing against the fines imposed on the Municipality.
Meanwhile, the NGT has sought a reply from the UP Pollution Control Board
requesting compliance with its orders stating that, “Learned counsel appearing
for the Uttar Pradesh Pollution Control Board submits that he will take
instructions and inform the Tribunal as to the compliance to the directions issued
by the Tribunal. List this matter on 5th January, 2017.”70
“Ganga Jal” is considered to be the sacred water and the only water which
can be kept for longer duration and do not stink comparatively to other water
taken from other source,71 followed by a landmark ruling on March 20, 2017, the
State of Uttrakhand could establish two sacred rivers i.e. Ganga and Yamuna as
“Living entities” as pronounced by Uttrakhand High Court in its land mark
judgment. Considering from the decades these holy rivers have been massively
polluted with sewage, industrial chemicals and pilgrims’ ritual baths. Now, this
order makes polluting or damaging the rivers, will be prosecuted for human
rights. Three officials, i.e., Director of Namami Ganga Program, The Chief

69 Manka Behl, ‘NGT decision on manja will add weight to state ban’, The Times of India, Nagpur,
December 17, 2016.
70 VT Staff, ‘NGT Order on Garbage Disposal Being Thrown to the Winds’, Vrindavan Today. 22/12/
2016, available at http://news.vrindavantoday.org/2016/12/ngt-order-garbage-disposal-thrown-winds/
(visited on December 22, 2016).
71 Naresh Kumar Vats, ‘GI-The factors of Rural Development and Strengthening Economy’, Vol. 21 Sep-
Nov 2016, JIPR, p. 351.
48 Contemprory Law Review [Vol. 1

Secretary, State of Uttrakhand and the Advocate General of Uttrakhand are

assigned as legal guardians to ensure their conservations and protection.72
Conclusion
The NGT has its strong teeth in relation to enforcement and its proceeding in
spite of the fact that Tribunal is not bound by the procedure laid down by the
Code of Civil Procedure, 1908 and not bound by the rules of evidence contained
in Indian Evidence Act 1872. Tribunal proceedings shall be considered as judicial
proceedings within the meaning of section 193, 219 and 228 for the purpose of
section 196 of Indian Penal Code and the act as Civil Court for the purpose of
Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 but for
the enforcement of its award Tribunal shall have all power of civil court. The
NGT is the most consistent and progressive environmental authority in India.
Unlike the Supreme Court, the NGT does not routinely favour infrastructure
projects, nor does it cause a delay in resolving the cases before it. It had redefined
the role of environmental experts and the criteria to select such experts. The
passing of the National Green Tribunal Act was a significant development in the
environmental jurisprudence of India. A welcome shift from the traditional
approach of Criminal sanctions with strict evidentiary requirements, to a mix of
Civil and Criminal sanctions was made possible by the Act. Another major
change was the relatively quick decisions in the Green Tribunal. These
improvements have resulted in more people approaching the court for redressal
of the environment problems. NGT has been successful in implementing its
orders which usually relate to staying environmental clearances be it introduction
of CNG running buses in NCR Delhi or prohibition of diesel vehicles in Delhi or
the limitation on maximum number of vehicles to be plied in Rohtang of
Himachal Pradesh to save the glaciers of Himalayas which decision of the NGT
considerably reduced the quantity of carbon emission. Further, the regional green
tribunals seem even more active and aggressive than the NCT in Delhi, as the
regional judges are fearless and have no ambition for national positions. Finally,
the NGT seems to have encouraged a number of lawyers all over India to
specialize in environmental law. Thus it can be seen from the above discussions
on the functioning of the NGT that the consistent stress of Supreme Court of India
to set up an environment court, the recommendation of Law Commissions of
India for establishing the environment courts in India and lastly the decision of
Govt. of India to set up environment tribunal by enacting the National Green
Tribunal Act, 2010 was justified and the National Green Tribunal proved its aim
and object to make India pollution free country.
Suggestions
(i) There is an adequate need to create more Zonal Branches/places of sitting
to be created.
(ii) NGT must play its proactive role and suo moto summoning to take care
of any act which is detrimental to the environment.

72 Ananya Bhattacharya, ‘India’s Sacred Rivers now have Human Rights’ available at
https://qz.com/938190/the-ganga-and-yamuna-rivers-in-india-were-given-human-rights-to-protect-
them-from-pollution/ (visited on June 10, 2017).
2017] Environmental Justice in India and Role of National Green Tribunal 49

(iii) The time limit for adjudication of disputes under section 14(3) of NGT
Act may be extended Five Year as application for claim of damages.
(iv) Professor having expertise in Environmental Law and more than 10 years
teaching experience; Advocate(s) having more than 20 years’ experience
at Bar District / High Court / Supreme Court must be accommodated as
Judicial Members of NGT. Since they are having ground root level
experience and aware of practical difficulties.

****
 REGULATION IN ELECTRICITY SECTOR AND PROTECTION
OF CONSUMER RIGHTS : A CRITICAL ANALYSIS
Manish Yadav
ABSTRACT
Electricity is an essential requirement for all facets of our life.
It has been recognized as a basic human need. It is a critical
infrastructure on which the socio-economic development of the
country depends. The overarching aim of the research paper is
to review the nature and degree of consumer protection in
electricity sector under the regulatory regime. This research
will seek to examine the practice of electricity regulation in
India, using studies of various cases in protecting consumer’s
rights. Energy is the basic building block of economic
development. Electricity is the most flexible form of energy that
constitutes one of the vital infra-structural inputs in socio-
economic development. Towards the end, it will highlight the
issues concerning consumer protection to make the entire
regulatory process more effective and transparent with the help
of existing consumer grievance settlement mechanism provided
under The Electricity Act, 2003.This research paper will review
the existing legal and regulatory framework of the Indian power
sector and discusses the status of the reforms in the sector. It
also deals with the various provisions for consumer protection
provide under the existing electricity laws and The Consumer
Protection Act 1986. This research paper also aims to deals
with the need for improving existing consumer grievance
settlement mechanism in the Indian electricity industry from
grievance settlement to problem solving. The present research
paper is restricted to examination of the existing legal and
regulatory framework for consumer protection mechanism such
as consumer grievance redressal forums and electricity
Ombudsman.
_______________________________________________________________________________________________________________________________________________________________________________

Keywords: Electricity, Regulation, Consumer Grievances

Redressal Forum, Ombudsman, Settlement Mechanism.
“Electricity has become one of the basic necessities of life, not
only does it drive the economic growth but also determines the
Standard of living of people”
- Ex Prime Minister, Shri Atal Behari Vajpayee
Introduction
Regulatory reforms have become a major priority of economic policies
throughout the world in the last two decades. However, it is a very complex matter
and these are progressive reforms that cannot be done overnight. It started in the

 Assistant Professor of Law, Maharashtra National Law University, Nagpur,

[email protected].
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 51

late seventies in the United States and then the wave came to Europe and the rest
of the world.1 Governments around the world are transforming their infrastructure
sectors to better meet the needs of their people. Regulatory reform is an essential
part of this process, and there is a growing consensus around the key principles
that should shape the design of regulatory systems for infrastructure.2
Governments around the world are transforming their infrastructure sectors
to better meet the needs of their people. Regulatory reform is an essential part of
this process, and there is a growing consensus around the key principles that
should shape the design of regulatory systems for infrastructure.3 It is a critical
infrastructure on which the socio-economic development of the country depends.
Supply 4 of electricity5 at reasonable rate to rural India is essential for its overall
development. Equally important is availability of reliable and quality power at
competitive rates to Indian industry to make it globally competitive and to enable
it to exploit the tremendous potential of employment generation. Services sector
has made significant contribution to the growth of our economy. Availability of
quality supply of electricity is very crucial to sustain high growth rate of this
sector and of Indian economy.6 While providing an investor friendly environment
is one objective of the regulatory system, it is equally important to ensure a level
playing field for completing suppliers and also credibility in the ability of the
system to safeguard the interests of consumers in terms of quality of service
provided and its cost.7 Electricity is an essential requirement for all facets of our
life. It has been recognized as a basic human need. It is a critical infrastructure on
which the socio-economic development of the country depends.
Growth of Indian Power Sector since after independence is noticeable. Indian
economy is also witnessing remarkable changes. Following the liberalization and
reform of the economy in 1991-92, the electricity sector too witnessed major
policy and regulatory initiatives. The sector while it was growing rapidly in the
eighties, faced issues of a debilitating and serious nature. Prior to 1991, the
electricity sector was a government monopoly, which used to perform all the
functions of generation, transmission, distribution and trading through a
vertically integrated setup.8

1 Marta Isabel Da Costa Paiva Pinto, ‘A Study on the deregulation of the electricity sector and the
implications for the Portuguese Market’ January 2001, at p. 1 <”http://in3.dem.ist.utl.pt /master /thesis
/99 files /thesis02.pdf> (visited on January 2, 2011).
2 Smith Warrick,‘Regulating infrastructure for the poor perspectives on regulatory system design’
(2000) at p. 3 http://www.globalclearinghouse.org /infradev/ assets5C10 /
documents/WB(Smith)Regulating%Infrastructure %for% the% Poor % (2000).pdf. (visited on April
10, 2017).
3 Ibid.
4 Section 2 (70) of the Electricity Act 2003 “supply”, in relation to electricity, means the sale of
electricity to a licensee or consumer.
5 Section 2 (23) “electricity” means electrical energy- (a) generated, transmitted, supplied or traded for
any purpose; or (b) used for any purpose except the transmission of a message.
6 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHTS, ed. 2015.
7 Consultation Paper of the Secretariat for the Committee on Infrastructure of Planning Commission of
India” Approach to regulation of Infrastructure: Issues and Options” at p. 4 http://infrastructure.gov.in
/pdf/ approach to_ regulation_ of_ infrastructure .pdf (20 December,2010), (visited on April 10, 2017).
8 Yadav Manish, STANDARDS OF PERFORMANCE AND ELECTRICITY ACT 2003, ed. 2014, p.
34.
52 Contemprory Law Review [Vol. 1

The growing interdependence of the world economy and international

character of many business practices have contributed to the development of
universal emphasis on consumer rights protection and promotion. Consumers,9
clients and customers all over the world, are demanding value for money in the
form of quality goods and better services. Modern technological developments
have no doubt made a great impact on the quality, availability and safety of goods
and services. But the fact of life is that the consumers are still victims of
unscrupulous and exploitative practices.10
An estimated 1.2 billion people-16% of the global population-did not have
access to electricity11 according to The World Energy Outlook12 (WEO-2016), 15
million fewer than reported in the previous year. Many more suffer from supply
that is of poor quality. More than 95% of those living without electricity are in
countries in sub-Saharan Africa and developing Asia, and they are predominantly
in rural areas (around 80% of the world total). While still far from complete,
progress in providing electrification in urban areas has outpaced that in rural areas
two to one since 2000.13
Traditionally, infrastructure sectors in India were monopolies that were
generally state-owned. With the introduction of economic reforms in early 1990s,
this situation has changed significantly. The electricity, telecom, and ports sectors
are being restructured and reformed in order to create competition, attract private
investment, and also improve operational efficiency. Independent regulatory
bodies have been established for electricity regulatory sector. Prior to this, there
was no sector- specific law protecting the consumers’ interests. The Consumer
Protection Act 1986 was the only recourse that existed earlier. Now, in the new
regulatory environment, consumer protection is one of the important mandates of
infrastructure regulators.

9 Section 2(15) of the Electricity Act 2003 Define Consumer as-

“‘consumer’ means any person who is supplied with electricity for his own use by a licensee or the
Government or by any other person engaged in the business of supplying electricity to the public under
this Act or any other law for the time being in force and includes any person whose premises are for
the time being connected for the purpose of receiving electricity with the works of a licensee, the
Government or such other person, as the case may be”.
10 Singh, S.S. and Chadah Sapna (eds), CONSUMER PROTECTION IN INDIA: SOME
REFLECTIONS, 2005.
11 See on 1 January 2016, the 17 Sustainable Development Goals (SDGs) of the 2030 Agenda for
Sustainable Development — adopted by world leaders in September 2015 at an historic UN Summit
-officially came into force. Over the next fifteen years, with these new Goals that universally apply to
all, countries will mobilize efforts to end all forms of poverty, fight inequalities and tackle climate
change, while ensuring that no one is left behind. available at
http://www.un.org/sustainabledevelopment/wp-content/uploads/2016/08/7_Why-it-Matters_Goal-
7_CleanEnergy_2p.pdf (visited on January 12, 2017).
12 The annual World Energy Outlook is the International Energy Agency's flagship publication, widely
recognised as the most authoritative energy source for global energy projections and analysis. It
represents the leading source for medium to long-term energy market projections, extensive statistics,
analysis and advice for both governments and the energy business; The International Energy Agency
(IEA), an autonomous agency, was established in November 1974. Its primary mandate was – and is
– two-fold: to promote energy security amongst its member countries through collective response to
physical disruptions in oil supply, and provide authoritative research and analysis on ways to ensure
reliable, affordable and clean energy for its 29 member countries and beyond.
13 ‘World Energy Outlook’ available at http://www.worldenergyoutlook.org/aboutweo/ (visited on
January 29, 2017).
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 53

Therefore, in order for the reforms to succeed, consumer’s protection in the

entire regulatory process is a must. This research reviews the nature and degree
of consumer protection in electricity sector. Towards the end, it highlights the
issues concerning consumer protection to make the entire regulatory process
more effective and transparent.
The Electricity Act 2003 seeks to create liberal framework of development
for power sector by distancing Government from regulation. The Electricity Act
2003 seeks to bring about a qualitative transformation of the electricity sector
through a new paradigm by replacing the three existing legislations, namely
Indian Electricity Act 1910, the Electricity (supply) Act 1948 and Electricity
Regulatory Commission Act 1998. The changes that have brought up by passing
The Electricity Act 2003, while significant, have not necessarily been in the
direction intended, and the core problem of leakage, providing enforcement
support to independent regulators by state, clarity of understanding on role of
regulators, regulatory independence and powers, viability of distribution, tariff
reform, open access, competition and consumer protection still remain to be
addressed successfully. Privatization alone did not seem to be paying rich
dividends. In the absence of either regulation or competition, whatever gains
privatization has to offer may never reach to the consumers.14
Protection of the interests and rights of Consumers is one of the primary
objectives of the Electricity Act 2003 as well as the National Electricity Policy
2005. Reliable and adequate availability of service at reasonable price and
addressing consumer grievances are the key consumer issues in electricity
regulation. Furthermore, the crucial factor in sustainable development of the
Power Sector is to make it accountable, transparent and acceptable to people. It
has generally been accepted that the Electricity Act 2003 has heralded effective
steps in the right direction for mitigating the grievances of Electricity Consumers
in general. New mechanisms to protect the interests of the Consumers have been
envisaged in the Act. The Electricity Act 2003 insists that Forums for Redressal
of Consumer Grievances shall be set up by all Electricity Distribution Companies.
The Act also envisages the setting up of an Electricity Ombudsman for a state
with powers to hear appeals on the verdicts of the Consumer Grievance Redressal
Forums.15
Constitutional Provisions Relating to Electricity Sector
The Constitution of India contains important provisions related to the power
sector in India. The provisions dealing with the division of powers between the
Union and the states are relevant in this context. Under the federal structure of
governance in India, the legislative powers of the Center and the States have been
demarcated. The apportionment of legislative powers is made in the three lists of
subjects. Schedule-VII of the Constitution of India contains the three Lists and
the Parliament and the State Legislatures have the power to make laws on the
subject matters contained in List-I (Union List) and List-II (State List)16

14 Sajal Ghosh, ‘Electricity Consumption and economic growth in India’, ELSEVIER 1 (2002).
15 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHTS, 2015, p. 44.
16 Article 246 (1) and (3) of the Constitution of India.
54 Contemprory Law Review [Vol. 1

respectively. List-III (Concurrent List), however, confers powers of legislation

with respect to listed subject matters on both the Centre and the States.17
Under Entry 38, List-III, both the Parliament and the State Legislatures have
been empowered to make laws on the subject of ‘Electricity’. The Constitution
has, however, given supremacy to Central Legislation, meaning thereby that if
there is a direct conflict or inconsistency between a Central Act and the provisions
of a State Legislation, then the law made by the Parliament shall prevail and the
inconsistent provisions of the State Legislation shall be void.18 However, if the
aforesaid provision has received Presidential Assent, the State legislation can
operate within the State.19 Despite such Presidential Assent, according to the
Proviso to Article 254 (2) of the Constitution of India, a provision of the State
legislation would not sustain if it is repealed, modified or amended by a
subsequent Central Enactment’s.
Legal Provisions Regarding Consumers’ Interests in Electricity Act 2003
The Electricity Act 2003 makes comprehensive provisions seeking to protect
the interests of consumers. As per provisions of the Electricity Act 2003
protection of consumer interest is one of the major objectives of reforms.20 A
number of steps have been taken to ensure consumer empowerment in this sector.
Some of the key provisions are described below:
The commitment of the law makers in terms of safeguarding consumer
interest is referred to in the preamble of the Act. The preamble says that the
objectives of the Electricity Act 2003, among others, are to promote competition,
protect the interests of the consumers and supply of electricity to all areas. The
broad objectives of the Electricity Act 2003, as incorporated in preamble of the
Act, is to consolidate the laws relating to generation, transmission, distribution,
trading and use of electricity and generally for taking measures conducive to
development of electricity industry, promoting competition therein, protecting
interest of consumers and supply of electricity to all areas, rationalisation of
electricity tariff, ensuring transparent policies regarding subsidies, promotion of
efficient and environmentally benign policies, constitution of Central Electricity
Authority, Regulatory Commissions and establishment of Appellate Tribunal and
for matters connected therewith or incidental thereto.21
The Act goes on to make specific provisions seeking to protect the
consumers’ interests. Section 43 of the Electricity Act 2003 provides for universal
service obligation for the licensee to provide connection to a consumer within a

17 Article 246 (2) of the Constitution of India.

18 Article 254 (1) of the Constitution of India.
19 Article 254(2) of the Constitution of India.
20 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHT, 2015, p. 34.
21 Preamble of The Electricity Act 2003-“An Act to consolidate the laws relating to generation,
transmission, distribution, trading and use of electricity and generally for taking measures conducive
to development of electricity industry, promoting competition therein, protecting interest of consumers
and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies
regarding subsidies, promotion of efficient and environmentally benign policies, constitution of
Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and
for matters connected therewith or incidental thereto”.
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 55

stipulated period of time, failing which the licensee is liable to pay compensation
to the affected consumer.22
Section 42 of the Electricity Act 2003 provides, inter alia, for the
establishment of a CGRF for settling the grievances of consumers. It also
provides for a channel of appeal in the form of ombudsman for settling non-
redressal of grievances at the stage of CGRF.23
Section 56 of the Act provides, inter alia, that no sum due from a consumer
can be recovered after a period of two years unless such sum has been shown as
arrears continuously from the date such sum became first due.24
Section 57 of the Act requires the appropriate Commission to frame
regulations on standards of performance which a licensee is required to follow

22 Section 43. Duty to supply on request (1) [Save as otherwise provided in this Act, every distribution
licensee], shall, on an application by the owner or occupier of any premises, give supply of electricity
to such premises, within one month after receipt of the application requiring such supply : “Provided
that where such supply requires extension of distribution mains, or commissioning of new sub-stations,
the distribution licensee shall supply the electricity to such premises immediately after such extension
or commissioning or within such period as may be specified by the Appropriate commissioning or
within such period as may be specified by the Appropriate Commission”. Provided further that in case
of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate
Commission may extend the said period as it may consider necessary for electrification of such village
or hamlet or area. [Explanation. - For the purposes of this sub-section, “application” means the
application complete in all respects in the appropriate form, as required by the distribution licensee,
along with documents showing payment of necessary charges and other compliances.] (2) It shall be
the duty of every distribution licensee to provide, if required, electric plant or electric line for giving
electric supply to the premises specified in sub-section (1): Provided that no person shall be entitled
to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a
separate supply unless he has agreed with the licensee to pay to him such price as determined by the
Appropriate Commission. (3) If a distribution licensee fails to supply the electricity within the period
specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees
for each day of default.
23 Section 42. (Duties of distribution licensee and open access): --(1) … (2) … (5) Every distribution
licensee shall, within six months from the appointed date or date of grant of licence, whichever is
earlier, establish a forum for redressal of grievances of the consumers in accordance with the
guidelines as may be specified by the State Commission. (6) Any consumer, who is aggrieved by non-
redressal of his grievances under sub-section (5), may make a representation for the redressal of his
grievance to an authority to be known as ombudsman to be appointed or designated by the State
Commission. (7) The ombudsman shall settle the grievance of the consumer within such time and in
such manner as may be specified by the State Commission.
24 Section 56. Disconnection of supply in default of payment (1) Where any person neglects to pay any
charge for electricity or any sum other than a charge for electricity due from him to a licensee or the
generating company in respect of supply, transmission or distribution or wheeling of electricity to him,
the licensee or the generating company may, after giving not less than fifteen clear days’ notice in
writing, to such person and without prejudice to his rights to recover such charge or other sum by
suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or
other works being the property of such licensee or the generating company through which electricity
may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such
charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the
supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person
deposits , under protest, -(a) an amount equal to the sum claimed from him, or (b) the electricity
charges due from him for each month calculated on the basis of average charge for electricity paid by
him during the preceding six months, whichever is less, pending disposal of any dispute between him
and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force,
no sum due from any consumer, under this section shall be recoverable after the period of two years
from the date when such sum became first due unless such sum has been shown continuously as
recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply
of the electricity:
56 Contemprory Law Review [Vol. 1

failing which he is liable to pay penalty.25 The Commission has to specify

different standards of performance by licensee in exercise of the powers vested
in it under section 58.26 Section 59 of the Act provides for monitoring all such
performance standards through periodic reports to be submitted before the
Regulatory Commissions.27
Section 3 of the Consumer Protection Act 1986 and Section 17528 of the
Electricity Act 2003; provide that they are in addition and not in derogation of
rights under any other law for the time being in force. Therefore, the rights of the
consumers under the Consumer Protection Act are not affected by the Electricity
Act 2003.29 The provisions of the Electricity Act have overriding effect qua
provisions of any other law except that of the Consumer Protection Act 1986, the
Atomic Energy Act 1962 and the Railways Act 1989.30
Provisions in the Electricity Rules 2005
Under the provisions of Electricity Act 2003, the Government of India has
framed Electricity Rules31 and National Electricity Policy. There are some
important provisions in the rules to ensure better consumer protection in the
sector. For example, Rule 7 specifies guidelines for constituting grievances
redressal forums and electricity Ombudsman.32 The Government of India has also
framed rules giving flesh to the provisions of the CGRF and ombudsman.33 The
relevant rules (Rule 7 of the Electricity Rules,34 2005 (as amended) are quoted

25 Section 57. Consumer Protection: Standards of performance of licensee (1) The Appropriate
Commission may, after consultation with the licensees and persons likely to be affected, specify
standards of performance of a licensee or a class of licensees. (2) If a licensee fails to meet the
standards specified under subsection (1), without prejudice to any penalty which may be imposed or
prosecution be initiated, he shall be liable to pay such compensation to the person affected as may be
determined by the Appropriate Commission: Provided that before determination of compensation, the
concerned licensee shall be given a reasonable opportunity of being heard. (3) The compensation
determined under sub-section (2) shall be paid by the concerned licensee within ninety days of such
determination.
26 Section 58. Different Standards of performance by licensee- The Appropriate Commission may specify
different standards under subsection (1) of section 57 for a class or classes of licensee.
27 Section 59. Information with respect to levels of performance (1) Every licensee shall, within the
period specified by the Appropriate Commission, furnish to the Commission the following information,
namely: - (a) the level of performance achieved under sub-section (1) of the section 57; (b) the number
of cases in which compensation was made under subsection (2) of section 57 and the aggregate amount
of the compensation. (2) The Appropriate Commission shall at least once in every year arrange for
the publication, in such form and manner as it considers appropriate, of such of the information
furnished to it under sub-section (1).
28 Section 175. (Provisions of this Act to be in addition to and not in derogation of other laws): The
provisions of this Act are in addition to and not in derogation of any other law for the time being in
force.
29 UP Power Corpn. Ltd. v. Anis Ahmad (2013) 8 SCC 491.
30 Section 173. (Inconsistency in laws): Nothing contained in this Act or any rule or regulation made
there under or any instrument having effect by virtue of this Act, rule or regulation shall have effect
in so far as it is inconsistent with any other provisions of the Consumer Protection Act 1986 or the
Atomic Energy Act 1962 or the Railways Act 1989.
31 Section 2 (59) of the Electricity Act, 2003 ‘rules’ means rules made under this Act.
32 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHTS, 1st ed. 2015, p. 10.
33 See Report of Forum of Regulators on “Protection of Consumers’ Interest” September 2008.
34 The Ministry of Power, Government of India came out with a notification on June 8, 2005 (as amended
on October 26, 2006) specifying rules under Section 176 of the Act (which empowers it to make rules
for carrying out the provisions of the Act).
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 57

as “under rule 7 (1) of the electricity rules, 2005, the distribution licensee shall
establish a Forum for redressal of consumer’s grievances as per regulations
specified by the appropriate Commission. The Commission shall also nominate
one independent member in the forum.35 As per rule 7 (1) and (2) of the electricity
rules, 2005, The state Commission shall appoint or designate Ombudsman36 as
per rules, regulations made by the commission for the purpose of deciding
appeals against the order of Forums.37 It is a responsibility of Ombudsman to
prepare a report on a six monthly basis including details of nature of grievances
of consumer dealt by him, response of the licensees in the redressal of consumer
grievances and compliance of the standards of performance as specified38 by the
Commission under section 57 of the Act.”39
National Electricity Policy 2005
Protection of consumer interest is one of the primary objectives of the
Electricity Act of India 2003 as well as the National Electricity Policy 2005.
According to the National Electricity Policy 2005,40 the Central Government,
respective State Governments and Regulatory Commissions should enable the
protection of consumer interest and adherence to quality by specifying standards
and norms of quality of service. It also requires Regulatory Commissions to
conduct consumer satisfaction surveys and build the capacity of consumers to
participate in regulatory decision making.

35 The Electricity Rules, 2005 (Rule-7.) Consumer Grievance Redressal Forum and Ombudsman
(1) The distribution licensee shall establish a Forum for Redressal of Grievances of Consumers under
sub-section (5) of section 42 which shall consist of officers of the licensee. The Appropriate
Commission shall nominate one independent member who is familiar with the consumer affairs.
Provided that the manner of appointment and the qualification and experience of the persons to be
appointed as member of the Forum and the procedure of dealing with the grievances of the consumers
by the Forum and other similar matters would be as per the guidelines specified by the State
Commission.
36 The Electricity Rules, 2005, Rule-7. (2) -The ombudsman to be appointed or designated by the State
Commission under sub-section (6) of section 42 of the Act shall be such person as the State
Commission may decide from time to time.
37 The Electricity Rules, 2005, Rule-7.(3) -The ombudsman shall consider the representations of the
consumers consistent with the provisions of the Act, the Rules and Regulations made hereunder or
general orders or directions given by the Appropriate Government or the Appropriate Commission in
this regard before settling their grievances.
38 Section 2 (62) of the Electricity Act, 2003.
39 The Electricity Rules, 2005, Rule-7 (4) (a) The ombudsman shall prepare a report on a six monthly
basis giving details of the nature of the grievances of the consumer dealt by the ombudsman, the
response of the licensees in the redressal of the grievances and the opinion of the ombudsman on the
licensee’s compliance of the standards of performance as specified by the Commission under section
57 of the Act during the preceding six months.
40 Under the provisions of section 3(1) of the Electricity Act 2003, the Central Government is required
to prepare the National Electricity Policy for development of the power system based on optimal
utilization of resources in consultation with Central Electricity Authority (CEA) and State
Governments. The National Electricity Policy aims at laying guidelines for accelerated development
of the power sector, providing supply of electricity to all areas and protecting interests of consumers
and other stakeholders keeping in view availability of energy resources, technology available to
exploit these resources, economics of generation using different resources, and energy security issues.
The Policy has been evolved after extensive consultations with the States, other stake holders, the
Central Electricity Authority and after considering the advice of the Central Electricity Regulatory
Commission. The National Electricity Policy is one of the key instruments for providing policy
guidance to the Electricity Regulatory Commissions in discharge of their functions and to the Central
Electricity Authority for preparation of the National Electricity Plan.
58 Contemprory Law Review [Vol. 1

The Electricity Act 2003 provides for a robust regulatory framework for
distribution licensees to safeguard consumer interests by framing regulation on
standard of performance and working of grievance redressal forum and electricity
Ombudsman. Para 5.13 the National Electricity Policy 2005 provides guidelines
to the regulatory commission for the protection of consumer interests and quality
standards.
The Electricity policy stated that the Appropriate Commission should
regulate utilities based on pre-determined indices on quality of power supply
under Standards of Performance including frequency and duration of interruption,
voltage parameters, harmonics, transformer failure rates, waiting time for
restoration of supply, percentage defective meters and waiting list of new
connections.41 Reliability Index (RI) of supply of power to consumers should be
indicated by the distribution licensee. A road map for declaration of RI should be
drawn by up SERCs for all cities and towns up to the District Headquarter towns
as also for rural areas.42 The National Electricity Policy lay down guidelines for
setting up of grievance redressal forum by the licensees and Ombudsman within
six months through the regulation.43
Poor consumer participation in the policy and regulatory decision-making
process is another major challenge faced by the SERCs. Consumer participation
in the regulatory decision-making process is a crucial factor in order to make it
accountable, transparent and acceptable to people. This affects the quality of
regulation. Therefore, there is a need to develop the capacity of staff of the
regulatory bodies so that they can assist the respective SERCs in protecting the
interest of electricity consumers and promoting effective consumer participation
in the decision-making process. The National Electricity Policy advised all the
State Commissions to facilitate capacity building of consumer groups and their
effective representation before the Regulatory Commissions so consumer
participation will enhance in regulatory process.44
Consumer Issues
Grievance Redressal- With the advent of reform, there has been an increased
attention to consumer grievances. Earlier some utilities have been conducting
public courts (adalats), State reform acts and the Electricity Regulatory
Commission Act had provision for a consultative committee with consumer

41 Para 5.13 Protection of consumers’ interests and quality standards “5.13.1 Appropriate Commission
should regulate utilities based on predetermined indices on quality of power supply. Parameters
should include, amongst others, frequency and duration of interruption, voltage parameters,
harmonics, transformer failure rates, waiting time for restoration of supply, percentage defective
meters and waiting list of new connections. The Appropriate Commissions would specify expected
standards of performance.”
42 Para “5.13.2 -Reliability Index (RI) of supply of power to consumers should be indicated by the
distribution licensee. A road map for declaration of RI for all cities and towns up to the District
Headquarter towns as also for rural areas, should be drawn by up SERCs. The data of RI should be
compiled and published by CEA.”
43 Para “5.13.3 It is advised that all State Commissions should formulate the guidelines regarding setting
up of grievance redressal forum by the licensees as also the regulations regarding the ombudsman
and also appoint/designate the ombudsman within six months.”
44 Para “5.13.4 The Central Government, the State Governments and Electricity Regulatory Commissions
should facilitate capacity building of consumer groups and their effective representation before the
Regulatory Commissions. This will enhance the efficacy of regulatory process.”
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 59

representation. Regulatory Commissions have been organising public hearings

on major issues. The Electricity Act has many provisions intended to further
this.45
Every distribution licensee46 is to establish a forum for redressal47 of
consumer grievances as per the guidelines of the respective Regulatory
Commission. The Regulatory Commission is to set up a redressal authority one
level higher in the form of an ‘Ombudsman’.48 As a first step, licensees would
generally be required to publish comprehensive document describing their rules
and in-house grievance redressal process. If the consumer complaint is not
satisfactorily solved by utility, he/she can approach the Forum, with an appeal.
And appeal against the decision of forum will lie with the Ombudsman. Hence,
now the consumers can approach these specialized courts in addition to the
consumer forums. Distribution licensees have the duty to provide power supply
to any consumer within one month of receipt of an application, subject to some
clauses [43,44]. Regulatory Commission is expected to specify standards of
performance for distribution licensee. Performance of the licensee with respect to
the performance standards is to be published by the Regulatory Commissions
once in a year. Fines can be imposed and compensation can be if these are not
met49. Advisory Committees of the Regulatory Commissions at the Central and
State levels will have a representation from consumers.50
Continuity of supply has a significant impact on production costs of industrial
production sites as, e.g., outages may cause severe damages. Due to globalization,
European industry is subject to a strong worldwide competition.51
Continuity of supply particularly, and to a much lesser extent voltage quality,
as delivered by system operators is being used increasingly by regulators in their
assessments of their overall performance. Electricity consumers in India as well
as in many other developing countries often suffer from poor quality of electricity
supply. Ironically the area of consumer satisfaction is sadly neglected as more of
a rule than an exception by every electricity DISCOM, the first interface between
the consumer and the electricity sector. This neglect of consumer needs was so

45 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION

OF CONSUMER RIGHTS, ed. 2015, p. 78.
46 Section 2 (17) of the Electricity Act 2003 “distribution licensee” means a licensee authorised to
operate and maintain a distribution system for supplying electricity to the consumers in his area of
supply.
47 Section 42 (5), every distribution licensee shall, within six months from the appointed date or date of
grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers
in accordance with the guidelines as may be specified by the State Commission.
48 Section 42 (6), any consumer, who is aggrieved by non-redressal of his grievances under sub-section
(5), may make a representation for the redressal of his grievance to an authority to be known as
Ombudsman to be appointed or designated by the State Commission.
49 Section 57, (Consumer Protection: Standards of performance of licensee): “(1) The Appropriate
Commission may, after consultation with the licensees and persons likely to be affected, specify
standards of performance of a licensee or a class of licensees...”
50 Section 80 (3), the Chairperson of the Central Commission shall be the ex-officio Chairperson of the
Central Advisory Committee and the Members of that Commission and Secretary to the GOI in charge
of the Ministry or Department of the Central Government dealing with Consumer Affairs and Public
Distribution System shall be the ex-officio Members of the Committee.
51 Yadav Manish, STANDARDS OF PERFORMANCE AND ELECTRICITY ACT 2003, 1st ed. 2014
p. 70.
60 Contemprory Law Review [Vol. 1

glaring that initially consumers were never a part of the decision making process
neither had they any mechanism of questioning their DISCOM about poor service
quality.52 However, last few years have seen increased attention to this neglected
area and there are some initiatives towards improving the quality of consumer
service. Public declaration of Citizens ‘charter (on performance and service),
formation of CGRF and Electricity Ombudsman, and regulations on Standards of
Performance are all results of this increased attention. SERCs were established in
many states in India under the Regulatory Commissions Act 1998 and their
responsibilities are widened by the Electricity Act 2003.53
Settlement of Consumer Disputes in Electricity Sector
An important goal of sustainable power sector reforms is that consumers
enjoy a reasonable level of satisfaction with utility prices and service quality. If
they are not satisfied they need an efficient and fair process, they can use to
resolve disputes and complaints. The Electricity Act 2003 casts a mandatory duty
on the Distribution Licensees to establish Forums for redressal of grievances of
consumers. The word ‘shall’ used in sub-section (5) of Section 42 of the
Electricity Act 2003 and sub-rule (1) of Rule 7 of the Electricity Rules, 2005
makes it amply clear that the Distribution Licensees have to compulsorily
establish Forums for redressal of consumer grievances. Similarly, it is also
mandatory for the Electricity Regulatory Commissions to nominate/designate
Ombudsman as an Appellate Authority over the Forums. The role of the
Regulatory Commissions in the functioning of these Forums and Ombudsman is
crucial. First and foremost, responsibility of the State Regulatory Commissions
is to ensure that the Forums are constituted and Ombudsman is designated and
they discharge their functions in a time bound manner. The State Regulatory
Commissions have to ensure that vacancies arising in the forums should be filled
in periodically by the Distribution Licensee concerned and to nominate (4th) the
independent member as per the amendment made to sub-rule (1) of rule 7 of the
Electricity Rules 2005 by the Government of India.54 To ensure that the Forums
and the Ombudsman are discharging their duties effectively, State Regulatory
Commissions have to periodically monitor their performance as mentioned in the
Electricity Act 2003 and the Electricity Rules made there under.
The creation of the Regulatory Commissions at the Central55 and State level56
is looked upon by the consumers as an opportunity to seek redressal for their
grievances in respect of supply of power given by the power utilities. The quality
of power supply being poor by any standards, there has been a large number of
complaints against the service rendered by the utilities. There is a tradition in
India to seek redressal at the highest level without even going through the normal
channels where grievances could have been redressed. Therefore, the

52 Ibid. p. 12.
53 Ibid. p. 56.
54 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHTS, 1st ed. 2015, p. 123.
55 Section 2(9) of the Electricity Act, 2003 “Central Commission” means the Central Electricity
Regulatory Commission referred to in sub-section (1) of section 76.
56 Section 2(64) of the Electricity Act, 2003 “State Commission” means the State Electricity Regulatory
Commission constituted under sub-section (1) of section 82 and includes a Joint Commission
constituted under sub-section (1) of section 83.
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 61

Commissions have to ensure that clear instructions for systematic handling of

grievances have to been given by the licensees,57 especially the Distribution
Licensees. The utilities should be encouraged to draw up a Citizens Charter or
Standards of Service and give it wide publicity. Any complaint or grievance
would be in relation to the non-adherence of a provision in the Citizens Charter
or Standards of Service.58 In our system the supply is 'far' stretched and there
would be a lot of problems. It would not be possible to satisfy all consumers.
Therefore, Standards of Service which can be practiced should be fixed with
reference to ground realities and published and made available. If this is not there,
the Regulatory Commissions should insist on such a Statement being made by
the Distribution Company. These Standards of Service will be basis for deciding
the 'consumer' grievance and how it should be redressed. What would be the
penalties that the Distribution Company would suffer if it does not confirm to the
promised standards has to be indicated.59
Consumer Grievance Redressal Forum
The Electricity Act 2003 provides a comprehensive legal framework for
consumer grievance redressal. Section 42 (5) of the Act makes it mandatory for
the distribution licensee to establish a forum for redressal of grievances of the
consumers in accordance with the guidelines as may be specified by the SERC.
Such a grievance redressal forum was to be established within six months by the
licensee from the grant of license to it. The Electricity Rules 2005 provided for
this forum to consist of officers of the licensee only. However, the rules were
amended in 2006 to include in this forum, one independent member familiar with
consumer affairs to be nominated by the Commission. Even after this amendment,
which is a step in the right direction, aggrieved consumers will continue to
represent to a forum consisting mainly of utility officials. This may raise question
marks on the impartiality of the forum's decision.60
The idea behind ECGRF under the Act is to (i) formalize grievances redressal
mechanism through guidelines as may be specified by the Electricity Regulatory
Commission and, (ii) bring in greater objectivity and fair play through induction
of an independent outside member to be nominated by the concerned State
Electricity Regulatory Commission. The Act also provides that any consumer,
who is aggrieved by non-redressal of his grievance by the forum, may make a
representation to an authority to be known as Ombudsman to be appointed or
designated by the SERC. The Ombudsman is required to settle the grievance of
the consumer within time and manner as may be specified by SERC.
Alternatively, a consumer can also approach consumer courts directly for
redressal of his grievance.
The first step is to approach the electricity company’s internal complaint
handling section as shown in the Figure below available to a consumer to take up

57 Section 2 (39) of the Electricity Act 2003 “licensee” means a person who has been granted a licence
under section 14.
58 Yadav Manish, STANDARDS OF PERFORMANCE AND ELECTRICITY ACT 2003, 1st ed. 2014,
p. 12.
59 Ibid. p. 24.
60 Yadav Manish, ENERGY LAWS: REGULATION IN ELECTRICITY SECTOR & PROTECTION
OF CONSUMER RIGHTS, 1st ed. 2015, p. 10.
62 Contemprory Law Review [Vol. 1

complaints. If they do not solve the problem in time, then consumer has two
options. One is to pursue the complaint through the consumer forum, which
handles all types of consumer complaints, including electrical. This approach is
shown on the right side of the figure, with district, state and national consumer
forums; these have been set up under the Consumer Protection Act 1986. The
second option is to pursue the complaint through the complaint handling
mechanism exclusively set up for electrical complaints after the Electricity Act
2003.61
This approach is shown on below of the figure with grievance forum and
office of the ombudsman.
Consumer Grievance Redressal Frame work

Utility Internal Grievance District Consumer

Redressal Forum(S/10 of CP Act)

Consumer Grievance State Disputes Redressal

Redressal Forum Commission(S/16)

Office of Electricity National Disputes Redressal

Ombudsman Commission(S/20)

High Court Supreme Court

However, if the consumer is not satisfied by redressal of his grievance by

Ombudsman, whether or not he can approach the commission, is not specified in
the Act. This has given rise to doubts about the issue of regulator’s jurisdiction in
redressing the consumer grievances.
Approach of Electricity Consumer Grievance Redressal Forum
The ECGRFs shall have the jurisdiction to entertain the complaints filed by
the complainants with respect to the electricity services provided by the
distribution licensee. The Consumers approach to the appropriate Officers of the
Distribution Licensee for redressing their grievances initially. If the complaint is
not rectified in time to their satisfaction they may approach the Electricity
Consumer Grievance Redressal Forum (ECGRF). Before discussing the
procedure for filling complaints and action taken by forums, first we will discuss
who can submit Complaint to ECGRFs. In this context the provision of Section
42(5) of the Electricity Act 2003 reproduce as- “Every distribution licensee shall,
within six months from the appointed date or date of grant of licence, whichever

61 Ibid.
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 63

is earlier, establish a forum for redressal of grievances of the consumers in

accordance with the guidelines as may be specified by the State Commission.”
After reading the above provision, it is clear that Consumer Grievance
Redressal Forums are established for the redressal of consumer grievances by the
distribution licensee. Thus, consumer can approach to ECGRFs for redressal of
their grievances.
A consumer has been defined in Section 2(15) of the Electricity Act 2003, as
follows:- “consumer” means any person who is supplied with electricity for his
own use by a licensee or the Government or by any other person engaged in the
business of supplying electricity to the public under this Act or any other law for
the time being in force and includes any person62 whose premises63 are for the
time being connected for the purpose of receiving electricity with the works of a
licensee, the Government or such other person, as the case may be.”
The definition of Complainant is not given in the Electricity Act 2003,
however the definition of Complainant is provided by the State Regulatory
Commissions through regulation regarding Consumer Grievance Redressal
Forum and Ombudsman. The definition of Complainant as contemplated in the
Madhya Pradesh Electricity Regulatory Commission (Establishment of Forum
and Electricity Ombudsman for Redressal of Grievances of the Consumers)
(Revision-I) Regulations 2009 is reproduce below-
Regulation 2.4 Sub Clause (d) Complainant means, (a) consumer as defined
under clause (15) of Section 2 of the Act; or (b) an applicant for new connection;
or (c) any registered consumer association; or (d) any unregistered association of
consumers, where the consumers have similar interest; or (e) in case of death of
a consumer, his legal heirs or representatives.
Similar definition has also given in the Model Regulations for Protection of
Consumer Interest (Consumer Grievance Redressal Forum, Ombudsman and
Consumer Advocacy Regulations) of Forum of Regulators for harmonizing of the
regulations concerning the Forum and Electricity Ombudsman.64
Individual Complaints Regulatory Commissions Jurisdiction
In this context it is submitted that as per Section 42(5) and 42(6) of the
Electricity Act 2003, the power to resolve disputes between the licensee and the
consumers has been vested only with the Grievance Redressal Forum and the
Ombudsman and not with any other authority. In support, the following decisions
of Appellate Tribunal for Electricity (APTEL) and Hon’ble Supreme Court may
be mainly relied upon-
Dakshin Haryana Bijli Vitaran Nigam Ltd. v. DLF Services Ltd.65 wherein
the relevant observations made by the APTEL are as follows: “...The State
Commission in law cannot usurp either the jurisdiction of the Grievance
Redressal Forum or the Ombudsman. In respect of the grievance of the
consumers, the specific forum of redressal and representation to a higher
authority are provided and the regulatory commission has no jurisdiction apart

62 Section 2 (49) of the Electricity Act, 2003 “Person” shall include any company or body corporate or
association or body of individuals, whether incorporated or not, or artificial juridical person.
63 Section 2 (51) of the Electricity Act 2003 “premises” includes any land, building or structure.
64 Regulation 1.5 Clause (c).
65 2007 APTEL 356.
64 Contemprory Law Review [Vol. 1

from the fact that it is either the appointing authority or the authority conferred
with the powers to frame Regulations, and not even an Appeal power has been
conferred on the State Commission with respect to consumer grievance”.
In Dakshin Haryana Bijli Vitaran Nigam Ltd. v. Princeton Park
Condominium,66 the APTEL observed: “… The regulatory commission could
exercise jurisdiction only when the subject matter of adjudication falls within its
competence and the order that may be passed is within its authority and not
otherwise on facts and in the law. All these statutory provisions conferring
jurisdiction on the redressal forum, thereafter to approach the Ombudsman, it
follows that the State Commission has no jurisdiction to decide the dispute raised
by the consumers.”
Hon’ble Supreme Court decided in the case of MSEDC v. Lloyd Steel
Industries Ltd.67, and observed: “….The basic question is whether the individual
consumer can approach the State Commission under the Act or not. By virtue of
Section 42(5), all the individual grievances of the consumers have to be raised
before the Grievance Redressal Forum and the Ombudsman only. The
Commission cannot decide about the disputes between the licensees and the
consumers.”
Thus, it is evidently clear after going through the above provisions of the
Electricity Act 2003 and above referred cases of APTEL and Hon’ble Supreme
Court that the State Electricity Regulatory Commission is not an authority to
adjudicate upon the dispute between licensee and consumer. Further, the
Commission has no jurisdiction to adjudicate upon the disputes between an
individual consumer and the licensee.
Ombudsman Legal Status under the Electricity Act 2003
Electricity Ombudsman is appointed under Section 42(6) of the Electricity
Act 2003. This section authorizes the State Regulatory Commission to establish
Ombudsman as an appellate authority over Consumer Redressal Forum through
an appropriate notified regulation. Each distribution licensee is required to
establish a Forum for redressal of grievances consumers as required under section
42 (5) of the Electricity Act 2003.68 The Appeals arising out of the decisions of
these Forums lie with the Ombudsman who has to settle the grievances of
consumer as per the Regulations of the Commission vide Section 42 (6)69 and 42
(7)70 of the Electricity Act 2003.
Electricity Ombudsman is an authority providing an effective, alternate,
time-bound and cost-less route for resolving the problems of the Electricity
Consumers. Any person affected by deficiency in electricity-related-service can
approach the Ombudsman for redressal of grievances.

66 2007 APTEL 764.

67 AIR 2008 SC 1042.
68 Section 42(5): “Every distribution licensee shall, within six months from the appointed date or date of
grant of licence, whichever is earlier, establish a forum for redressal of grievances of consumers in
accordance with the guidelines as may be specified by the State Commission.”
69 Section 42(6): “Any consumer, who is aggrieved by non-redressal of his grievances under sub-section
(5), may make a representation for the redressal of his grievance to an authority to be known as
Ombudsman to be appointed or designated by the State Commission.”
70 Section 42(7): “The Ombudsman shall settle the grievance of the consumer within such time and in
such manner as may be specified by the State Commission.”
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 65

Licensee has no Right to Appeal before the Ombudsman

The Researcher noted that some State Commissions had reservations on the
provisions of section 42(6) of the Act in that the said provision did not give a
right to the licensees to appeal before the ombudsman against the orders of
CGRF. It is discussed earlier that CGRF was conceived as an internal organ of
the licensee, it was obvious that the orders of the CGRF would be acceptable to
the licensee and that only the aggrieved consumer could have grievance against
the order of such internal organ of the licensee. Thus, logically the Act did not
provide for the right to a licensee to appeal against the orders of CGRF.71 Only
consumer has right to appeal against the order of CGRF.
Conclusion
The Electricity Act 2003 is landmark legislation, aims at development of a
power system which catalyses investment, promotes competition and protects
consumer interest. The Electricity Act 2003 makes elaborate provisions which
seek to protect the Interest of consumers. The National Electricity Policy and the
Tariff Policy framed Under the Act reinforce its provisions. They stipulate a road
map and action plan for various stakeholders in ensuring protection of consumers’
interests. In line with the provisions of the Act and the policies, steps have been
taken by stakeholders in different states towards institutionalizing the
mechanisms of grievance redressal machinery, such as the Consumer Grievance
Redressal Forum (CGRF) and the ombudsman.
The Act provides protection to consumers with reference to standards of
performance. If a licensee fails to meet the specified standards than any penalty
that may be imposed or prosecution pronounced, the regulatory commissions will
have powers to impose appropriate compensation to be paid to the affected person
within the time limit of 90 days. In addition, every licensee will have to furnish
information about the level of performance achieved by it to the commission and
the ERCs shall arrange for publication of such information at least once every
year. Besides the tariffs shall be regulated by the commissions such that
safeguarding of consumers’ interest and at the same time, recovery of the cost of
electricity in a reasonable manner, is ensured. Besides the State advisory
Committee constituted by the respective SERCs will have consumer protection
as one of its objectives.72
Suggestions
Dispute settlement and adjudication through the Civil Courts has been
complex, lengthy and unaffordable process for many. Government of India has
tried to put in place an alternative legal mechanism harnessing the requisite
judicial and technical expertise in the fast growing electricity sector in the
country. In view of the explosive growth and complex emerging scenario, an
integrated and comprehensive dispute settlement mechanism to protect the
interest of consumers and industry is need of the hour. An effective grievances
redressal mechanism is necessary for promoting growth in electricity sector. It is

71 Section 42(6): “Any consumer, who is aggrieved by non-redressal of his grievances under sub-section
(5), may make a representation for the redressal of his grievance to an authority to be known as
Ombudsman to be appointed or designated by the State Commission.”
72 Tripta Thakura, S.G. Deshmukh ‘Impact assessment of the Electricity Act 2003 on the Indian Power
Sector’ Energy Policy 33 (2005) p. 1.
66 Contemprory Law Review [Vol. 1

submitted that the study attempts to look at an ideal grievances redressal

mechanism in the electricity sector. The idea is to evoke different points of view
so that a suitable model may emerge. For this purpose, a number of suggestions
revolved after this research work are submitted for consideration to improve the
grievances redressal processes in electricity industry.
(i) Electricity is largely a technical field. As such, dispute settlement
between service providers would often require understanding of
technical issues for successfully resolving them. The regulator which
possesses technical expertise would appear to be the most competent
body to resolve such disputes. As against this, it is also possible to argue
that the tribunal could be composed in such a way that it comprises
technical as well as judicial members. Thus, a properly constituted
tribunal will not suffer from the technical handicap as apprehended.
(ii) In a sector like electricity, disputes between generating company, trading
companies and transmission companies must be settled swiftly and
speedily. It is submitted that adjudicatory proceedings before courts and
tribunals often take a long time to come to finality.
(iii) It is necessary here to ponder over the issue of efficacy of dispute
resolution mechanism which is necessary for promoting growth in
electricity sector. There is also a need to develop more transparent
procedure in regard to settlement of disputes through ADR methods like
mediation and arbitration. In this context institutionalized mechanisms
for settlement of disputes whether in the shape of regulator or an
appellate body do play an important role in settlement of disputes.
However, one should not lose sight of alternative dispute settlement
mechanisms which can play an equally important role involving much
less time and cost in sorting out dispute in this sector.
(iv) It is submitted that if the regulatory frame-work is clear and transparent
and the service providers themselves provide an effective in-house
dispute resolution mechanism, it will go a long way in not only providing
satisfactory consumer services but would strengthen the desired
meaningful growth in electricity sector. This will also reduce strain on
SERC, CERC, APTEL and other legal forums and make the entire
Dispute Resolution mechanism very efficient and effective.
(iv) The clarity and transparency in regulatory and licensing regime
minimizes the disputes and improves the efficiency of the system. In-
depth analysis of the issues will go a long way to make the dispute
resolution mechanism more effective. Frequent changes in the regulatory
and licensing policies adversely affect the planning and investment
decisions of the stake holders and results in disputes at various forums.
Simplification of regulatory regime by licensor and regulator and to
make the same more transparent will ensure that the issues do not get
converted in to disputes.
(v) ERCs many times do not even follow the limited reporting to the
legislature that is required for them. They favour some over others
appearing before them. They cannot be disciplined. Accountability is to
the public opinion through the media. But a few other things are possible
2017] Regulation in Electricity Sector and Protection of Consumer Rights: A Critical Analysis 67

to make this accountability more precise and well defined. An

independent ratings process of the ERCs can be brought into being. As
with ratings of the other institutions (for example of business schools,
companies, etc.), there needs to be more than one independent rating. It
should not be by government.73

****

73 Rao, S.L., POWERING INDIA-A DECADE OF POLICES AND REGULATION, 2011, p. 60.
 PUBLIC-PRIVATE PARTNERSHIP : A FOCUS ON THE
DEVELOPMENT OF STADIUMS IN INDIA
Shaik Nazim Ahmed Shafi
ABSTRACT
India is a home of unity in diversity, population playing many
different sports across the country. History speaks that India was
never an exception to games and sports even though original
games began in ancient Greece in 776 ВС. ‘Games’ and ‘Sports’
serve society by providing vivid examples of excellence. A
healthy nation is a wealthy nation by taking part in games and
sports thereby making people strong and healthy. Since the
ancient period i.e. the archaeological excavations of Mohen
jadaro and Harappa to the modern era of Olympics, India stood
for a variety of games and sports. But today, games and sports
have become a neglected area in India. Prominence is given to a
very few games or sports like the cricket, football and hockey
while the other are neglected or undermined due to various
factors like the lack of infrastructure, budgetary constraints on
the government, dearth of stadiums and defunct stadiums. The
author tries to balance the games and sports which are presently
played, at par with those of being neglected due to various
reasons, through the initiation of the concept of PPP in the
development of stadiums in India. India does have many stadiums
but as a matter of fact only few are functioning and the others
have become defunct. Some stadiums were seen being used for
the last time averaging 8 to 10 years are the victims of shortage
of funds. To elevate the present poor state of stadiums in India to
a ‘World Class Stadiums’ the author introduces the concept of
PPP Modelled Stadiums in the development of stadiums in India
benefitting the government, the private investor and the public at
large and suggests for a policy initiation. Hence, there is a need
for a national policy on infrastructure pertaining to Stadiums in
India at par with the other infrastructural policies in other
sectors as is evident today.
___________________________________________________
Keywords: Public-Private Partnership, Mohenjadaro and
Harappa, udayana krida, Special Economic Zone, Modeled
Stadiums.
Introduction
“Champions aren’t made in the gyms. Champions are made from something
they have deep inside them-a desire, a dream, a vision.”1

 Assistant Professor of Law, NALSAR University of Law, Hyderabad,

[email protected].
1. Boxer, Philanthropist and a Social Activist, Kentucky, USA.
2017] Public-Private Partnership: A focus on the development of Stadiums in India 69

India is a home of unity in diversity, population playing many different sports

across the country. ‘Games’2 and ‘Sports’3 serve society by providing vivid
examples of excellence.4 They play a vital role in building a person’s physical
and mental health. A habit of sports in one’s life will lay the foundation for his
success in good health leading to the nation’s building socially, economically,
politically etc. Sports keep human beings fit for all purposes whether family life,
employment life, business life or even political life. A healthy nation is a wealthy
nation by taking part in ‘Games’ and ‘sports’ making people strong and healthy.
The idea behind selecting this topic is that the author having visited many
educational institutions, lack infrastructure building, games and sports in
educational institutions. Games and sports have become farce than a reality. This
paper brings out the history of games and sports from the period of archaeological
excavations to the modern times and its importance in human life. It tries to bring
out the development of stadiums a neglected area through the concept of ‘Public-
Private Partnership’ (PPP) thereby reducing the burden on the government which
speaks of “health is nation’s wealth. Through PPP mechanism the author tries to
explore the economic viability to the parties to a contract i.e. the government on
one side and the private entity on the other with an overall benefit to the public at
large. The author focuses on the initiation of a Policy on Stadium Infrastructure
in India which is the need of the hour benefiting all.
History of ‘Games’ and ‘Sports’
History speaks that India was never an exception to games and sports even
though original games began in ancient Greece in 776 ВС. The archaeological
excavations of Mohen jadaro and Harappa5 throws light that dancing, singing,
swimming, marbles, balls, dice and hunting were regarded as games. The other
periods like the Vedic period6 witnessed swinging, chariot race, hide and seek,
run and catch, dices and boxing; the early Hindu period7 i.e., the Ramayana
witnessed chariot-riding, horse-riding, hunting, swimming, chaturang or chess,
and ball games; the Mahabharata relates to games and gymnastics, jumping, arms
contracting, wrestling, playing with balls, hide and seek, chasing animals, Iti-
danda or gulli-danda, dicing, water sports and swimming. The Puranas speak of
discus and rope-fighting; the Buddhist and Jain literature of chess, swimming and
boxing. The Jataka stories also prove of archery, udayana krida or garden games,
salila krida or water games.
Later the Hindu period during 320 AD and 1200 AD, great universities like
the Takshila and Nalanda witnessed military training, wrestling, archery,
mountain-climbing, swimming, breath exercises and yoga, hunting, elephant
fighting, ram fighting and partridge fighting. Finally, yoga which occupied in the

2. A ‘game’ is a physical or mental competition conducted according to rules with the participants in
direct opposition to each other; https://www.merriam-webster.com/dictionary/game (visited
on January 18, 2017).
3. A ‘sport’ is an individual or group activity pursued for exercise or pleasure, often involving the testing
of physical capabilities and taking the form of a competitive game such as football, tennis etc.;
https://www.collinsdictionary.com/dictionary/english/sport, (visited on January 18, 2017).
4. George F. Will is a Pulitzer Prize-winning conservative political commentator.
5. Indus Valley Civilization 3250 BC-2750 BC.
6. Vedic Period 2500 BC-600 BC.
7. Early Hindu Period 600 BC-320 BC.
70 Contemprory Law Review [Vol. 1

cultural history of India, from times immemorial, an unparalled and distinct

recognition as the one and only practical system of physical, mental, moral and
spiritual culture is gaining its importance and playing a prominent role in our
present day life.
The purpose behind the ‘games’ and sports’ is to bring up the harmoniously
developed generation i.e. the generation of strong and healthy people. Sport
makes our bodies strong, quickens our reaction, and shapes the wits. It also
prevents us from getting too fat, gives us so valuable practice in making eyes,
brain and muscles work together and makes us more self-organized and better
disciplined.
‘Games’ and ‘Sports’ in India
‘Games’ and ‘Sports’ are played at two places i.e., one in educational
institutions and the other in stadiums. Educational institutions play a vital role in
shaping the students mentally and physically fit through their curriculum of
academics and games. And on the other hand ‘stadiums’ were designed to host
more than one type of sport or event, and the concept of ‘stadium’ usually refers
to a specific design philosophy that stresses multi-functionality over specificity.
India does have many stadiums as well as many games and sports. Today,
prominence prevails over a very few games which are played in a very few
stadiums. Cricket, football, hockey is given importance leaving the other games
and sports behind, which India has witnessed traditionally from the ancient
period. Whether authorities have neglected some games and sports or have
undermined the other, except the aforesaid three, is a million-dollar question. In
any way the author wants to bring out a balance between the games and sports
which are presently played, at par with the other which are not played and tries
to bring out a platform form by creating a space to those games and sports which
were neglected in India, through the initiation of the concept of PPP in the
development of stadiums in India. India does have many stadiums but as a matter
of fact only few are functioning and the others have become defunct (e.g. 54
cricket stadiums in India have become defunct).8 Some stadiums were seen being
used for the last time averaging 8 to 10 years are the victims of shortage of funds.
Very recently, India witnessed a thriving at the Olympics or at the other
International event in a very particular game or sport. The question here is does
people in India know only few games and sports–the answer is not. The author
opines that all traditional games along with the modern are to be played at each
and every stadium and thereby making India proud of its games and sports at the
international level. India being no exception to the process of liberalization,
privatization and globalization, ratified the World Trade Organization (WTO).9
Hence, the concept of PPP has emerged by which the author tries to apply the
said concept in the development of stadiums in India providing a stake to one and
all.

8. ‘Defunct cricket grounds in India’ available at

https://en.wikipedia.org/wiki/Category:Defunct_cricket_grounds_in_India, (visited on March 20,
2017).
9. India had formally ratified the World Trade Organization’s (WTO) Trade Facilitation Agreement,
which aims at easing customs procedures to boost commerce…agreement. India is the 76 th WTO
member to accept the TFA.
2017] Public-Private Partnership: A focus on the development of Stadiums in India 71

Origin of ‘Stadiums’
The word “stadium” originates from the town of Olympia in Ancient Greece.
The Olympians used to run a race over a distance of 192m, which in Greece was
a unit of measurement called a “stadium”, which in turn gave its name to the
venue. Stadiums were a large structure providing the inspiration for a type of
sports arena. The stadium involved the juxtaposition of two semicircular theatres
to produce a venue where the spectator area completely surrounded the “stage”,
creating what was, in effect, a stadium bowl.10 The concept of ‘stadium’ was
developed since the days of ancient Greece and Rome, to reflect the specific
requirements of a wide variety of sporting disciplines. These stadiums were
regarded as football stadiums and were designed to be used for other sports too
(e.g. athletics). But in the modern era, the emphasis is on the specific needs of the
game henceforth, the stadium developers of the 21st century must be aware of
while undertaking the projects under PPP model.
Public-Private Partnership
Over the years, Government of India (GoI) has been providing infrastructure
through budgetary provisions. Infrastructure is the key to development of any
nation, both for economic growth and poverty eradication. Over the years,
developing countries, including India, have seen inadequate public expenditure
in the infrastructure sector owing to pressing demands for other government
obligations. GoI has recognized that there is significant deficit in the availability
of physical infrastructure across different sectors and that it is hindering economic
development. Large investments are required in infrastructure. These cannot be
drawn from public finances alone and there is a specific role for private
investment that was for long missing. In order to attract private capital as well as
the techno-managerial efficiency associated with it, the GoI has decided to
accelerate promotion of Public-Private Partnership (PPP) in infrastructure
development to keep the games and sports actively alive. Government has also
recognized the fact that in, all infrastructure projects cannot be viable because of
their long gestation period and poor cash flow in the initial years. These projects
with a large social and economic value cannot be bankable for the purpose of
private investment. Therefore, there is need for government’s grant to make such
projects viable if private investment is welcomed.11 Hence, the first decade of 21st
century has witnessed Indian economy experiencing an unprecedented growth in
almost all sectors.
Today’s infrastructure development in any sector requires land. Land has
become a buzz word because; in any aspect or for any sector land is required.
Whether it for Special Economic Zone (SEZ) or Industrial Corridors, or
Information Technology Corridors, or residential, or commercial or corporate or
two bed room house for below poverty line (BPL) as was announced by the
Hon’ble Chief Minister of Telangana State or as was announced by our Hon’ble
Prime Minister Narendra Modi- ‘Housing for All by 2020’ anyway in all cases

10. ‘UEFA guide to quality stadiums’, available at

https://www.uefa.org/MultimediaFiles/Download/EuroExperience/competitions/General/01/74/38/6
9/1743869_DOWNLOAD.pdf (visited on March 20, 2017).
11. Yogendra Sharma, (rev.) PUBLIC PRIVATE PARTNERSHIP, 2015, pp. 1-3.
72 Contemprory Law Review [Vol. 1

there is requirement of land. But stadiums also require land. Before setting up of
new stadiums in India, the GoI or the respective State Governments must think
over the optimum utilization of the defunct stadiums as well as the functional
stadiums for the public purpose. As the population of India majorly comprises of
youth, it is the need of the hour that the stadiums must be given away for
development to a private party under the PPP model, which will go a long way in
protecting the health of the youth.
PPP : Definition and its Mechanisms
The concept of PPP can be discussed by making a brief review of definitions
at the international level including those from international agencies such as
OECD,12 IMF,13 and ADB14 etc. Generally, a ‘Public Private Partnership’ is a
partnership between the public and private sector for the purpose of delivering a
project or service which was traditionally provided by the public sector. By
adopting the PPP model, the governments can be benefitted in many ways like; it
induces private development at strategic locations; maximizes governmental
investment, development and operational incentives; maximizes use of funds in
a special assessment district; creates employment opportunities; uses less public
capital in developing facilities or the infrastructure and finally improves
performance of under-used assets.
The various mechanisms which can be applied under PPP are; Operations
and Maintenance (OM); Operations, Maintenance and Management (OMM);
Design-Build (DB); Design-Build-Maintain (DBM); Design-Build-Operate
(DBO); Design-Build-Operate-Maintain (DBOM); Design- Build-Finance-
Operate-Maintain (DBFOM); Design-Build-Finance-Operate-Maintain-Transfer
(DBFOMT); Build-Operate-Transfer (BOT); Build-Own-Operate (BOO); Buy-
Build-Operate (BBO); Developer Finance (DF); Enhanced Use Leasing or
Underutilized Asset (EUL/UA); Lease-Develop-Operate or Build-Develop-
Operate (LDO/BDO); Lease-Purchase (LP); Sale-Leaseback (SL); Tax-Exempt

12. Organization for Economic Cooperation and Development defines a public-private partnership as “an
agreement between the government and one or more private partners (which may include the operators
and the financiers) according to which the private partners deliver the service in such a manner that
the service delivery objectives of the government are aligned with the profit objectives of the private
partners and where the effectiveness of the alignment depends on a sufficient transfer of risk to the
private partners.”
13. According to International Monetary Fund (IMF 2006: 1 and 2004:4) public-private partnerships
(PPPs) refer to arrangements where the private sector supplies infrastructure assets and services that
traditionally have been provided by the government. In addition to private execution and financing of
public investment, PPPs have two other important characteristics: there is an emphasis on service
provision, as well as investment, by the private sector; and a significant risk is transferred from the
government to the private sector. PPPs are involved in a wide range of social and economic
infrastructure projects, but they are mainly used to build and operate hospitals, schools, prisons, roads,
bridges and tunnels, light train networks, air traffic control systems, and water and sanitation plants.
14. Asian Development Bank defines the term “Public-Private Partnership” as a range of possible
relationships among public and private entities in the context of infrastructure and other services. PPPs
present a framework that - while engaging the private sector-acknowledge and structure the role for
government in ensuring that social obligations are met and successful sector reforms and public
investments achieved. A strong PPP allocates the tasks, obligations and risks among the public and
private partners in an optimal way. The public partners in a PPP are government entities, including
ministries, departments, municipalities, or state-owned enterprises. The private partners can be local
or international and may include businesses or investors with technical or financial expertise relevant
to the project. (Source: Public-Private Partnership Handbook [Asian Development Bank]).
2017] Public-Private Partnership: A focus on the development of Stadiums in India 73

Lease (TEL) and Turnkey (T). However, in India since the initiation of the reform
process, measures were introduced to strengthen the existing infrastructure and
to develop new projects with private participation.15 PPP is applied in the form
Build-Operate-Transfer (BOT) or Build-Own-Operate-Transfer (BOOT) and
Concession Agreements. Recently established Joint Venture structure of
institutions to develop and modernize the Delhi and Mumbai airports is an apt
form of PPP. Hence, the respective governments can opt for any of the aforesaid
mechanism under the PPP for the development of stadiums in India.
Beneficiaries under PPP Modelled Stadiums
Taking the economic viability into consideration, the author focuses the
three-way benefits to the government, private investor and also to the public at
large in the development of stadiums in India. The following are benefits:
(i) Benefits to the Government-Project-wise, a PPP represents considerable
benefits like improved service quality, lower project costs, less risk (in
matters of project design; execution; operation and financing), framework
conducive to innovation; more rapid project execution; easier budget
management; source of additional revenue, exploring PPPs as a way of
introducing private sector technology and innovation in providing better
public services through improved operational efficiency, incentivizing the
private sector to deliver projects on time and within budget, extracting
long-term value-for-money through appropriate risk transfer to the private
sector over the life of the project–from the design/construction to
operations/maintenance.16 PPPs help the public sector develop a more
disciplined and commercial approach to infrastructure development whilst
allowing them to retain strategic control of the overall project and
service,17 asset management implementation, capital improvement
efficiencies, ability to retain ownership of the assets, retention of
workforce, customizable PPP models, relief of financial stresses on
government, upfront capital, economic growth, new revenue opportunities,
ability to handle aging workforce, and investment in new technology.18
Hence, the government can shoulder its responsibility to a private party in
operations and maintenance of the said stadiums. When once a stadium
gets operated, the government will have its stake in the profits earned
through the PPP model.
(ii) Benefits to Private Party-Project-wise a private party is not benefitted due
to its major role in investment, construction, operations and maintenance.
A high risk factor is an inherent quality in a PPP model whether it may
relate to the price of goods, raw material, labour, tax, law and policy issues,
etc. It is only when once the project enters into operation stage one can

15. ‘The National Council for Public Private Partnership’ available at http://www.ncppp.org/ppp-
basics/types-of-partnerships/, (visited on March 20, 2017).
16. PPIRC ‘Government Objectives: Benefits and Risks of PPPs’ available at
https://ppp.worldbank.org/public-private-partnership/overview/ppp-objectives, (visited on January
21, 2017).
17. ‘International Project Finance Association’; http://www.ipfa.org/industry-resources/benefits/,
(visited on January 21, 2017).
18. ‘Black & Veatch Reprint Permission Policy’; https://www.bv.com, (visited on January 22, 2017).
74 Contemprory Law Review [Vol. 1

think of the profits. Here the private party must estimate how best it can
retain the project till it gets its stake from the project. However, a private
party can be benefitted only after it completes the project and brings into
operation. But this is purely based on its business plan which establishes
the financial viability of a stadium development project and sets out the
anticipated sources of revenue.
In the past, stadiums were used only on match days and in case of national
venues far less. Those days are long gone. Modern stadiums19 need to
identify other means of generating revenue on a daily basis due to the
involvement of a private party under PPP model. Stadiums must be
commercialized so as to generate the revenue on daily basis. To be
commercialized, the income initiatives must include; extending use of the
stadium to non-match days (by providing facilities and activities for the
local community, schools, colleges, universities, and the public at large for
running, jogging, physical exercises etc. throughout the week);
maximizing match-day revenue; VIP areas providing superior catering and
washroom facilities and direct access to premium seating; providing at a
premium the skyboxes; catering facilities and restaurants; retail
outlets/merchandising; car parking; ticket sales; maximizing non-match
revenue; other sports events; corporate events; weddings and other special
occasions; conference facilities; cinema, nursery facility; air ticketing; cab
facility; medical and ambulance facility; book-shops, fire brigade; security
staff etc. Finally, the developers of the stadium must open schools of
games and sports by hiring people familiar with the respective game or
sport so as to cater the need of the public.
(iii) Benefit to Public-It is evident that prominence is given to few sports in
India while the other is neglected. It may be due to the dearth of stadiums
or the infrastructural issues the government is facing today or due to the
defunct stadiums or lack of funds. Through PPP model stadium, all the
issues can be subsided and a new era of games and sports can be re-looked
into. The said model stadiums can benefit the students of all educational
institutions as well as the public at large. A new dimension can be given
by inviting the sportsman to be attached to the model stadium so as to
render their valuable services to the students and the public. The model
stadium can invite competitions among educational institutions intra and
inter-district, as well as intra and inter-State. Those weak in studies can opt
for the sports and can lead the team to the international level.
Unemployment issue can be curbed by bringing out more and more
stadiums with various games and sports to be played.
The PPP modelled stadiums can invite various types of games and sports like;
(i) Olympic Sports-which include Archery, Athletics and Triathlon, Badminton,
Basketball, Boxing, Cricket, Cycling, Equestrian sports, Football, Golf,
Gymnastics, Handball, Hockey, Kayaking, Power lifting, Rugby, Table Tennis,
Taekwondo, Tennis, Volleyball, Weightlifting, Wrestling etc.; Non-Olympic
Sports – like American football, Baseball and softball, Billiards and Snooker,

19. UEFA Guide to Quality Stadiums.

2017] Public-Private Partnership: A focus on the development of Stadiums in India 75

Chess, Floor ball, Kabaddi, Karate, Korfball, Lacrosse, Motorsports, Netball,

Polo, Rock climbing, Sepak takraw, Throw ball; (iii) Winter Sports–bandy, ice-
hockey and (iv)Traditional and Regional Sports–like Seval Sandai, Jalikattu,
Gilli-danda, Kancha, Kite-flying, Indian martial arts, and Kho-kho, Bhathkamma
festival etc.20
Keeping in view the aforesaid games and sports, the sports activity can boom
and can reach to the highest of the highest heights on a precondition that the
government takes initiative in introducing the PPP modelled modernized
stadiums in India and making people of India strong and healthy. Our Hon’ble
Prime Minister, Shri Narendra Modi’s statement was right which says ‘Make in
India’ concept which can be achieved with spirit.
Conclusion
A National Policy on Infrastructure on Stadiums is the need of the hour.
Greenfield and Brownfield Infrastructure Policies on Stadiums must be initiated
in at par with other existing Infrastructure Policies of various sectors in India.
PPP has become the buzz word for the growth and prosperity of a nation. In India
only Rajasthan has a programme on infrastructure initiated in 2015.21 The author
opines that the government must explore the possibilities of introducing many
‘World Class Stadiums’ in India through the PPP model. The lost and the past
glory of ancient culture of games and sports can be restored only though the
concept of PPP. It may not be out place to place those organizations like ports,
airports, highways which have come into action. India having entered into global
market started in spreading its wings of economic development in various sectors
like the air and space; trade and commerce; information technology; etc. Today
the world is at a competitive edge and India must also excel in other sectors like
the one in games and sports. India hosted several international sporting events,
including the Asian Games, Cricket World Cup, Afro-Asian Games, Hockey
World Cup, Commonwealth Games, Indian Premier League, Chennai Open in
Tennis, the Indian Masters in Golf, and the Indian Grand Prix Formula-1. India
will be hosting the 2017 FIFA U-17 World Cup. However, PPP will ignite the
slow process of development through its various mechanisms in the field of
games and sports. Hence, the PPP modelled stadiums will play a vital role
affecting people of various walks of life in the near future.
Today India is witnessing ‘world class airports’ etc., and in the same way,
India must witness ‘World Class Stadiums’ attracting the players globally. India
must become a hub of games and sports internationally drawing the attention of
various players whether indoor or outdoor to India. It creates an opportunity for
Indians to participate in the international events without any exception. It
generates employment from the root level i.e., village to metros or cosmopolitan
city. Every educational institution requires a qualified physical director and many
more making it a mandatory through a policy etc. Every State has its own
traditional games and sports which can be recognized and can be brought to
limelight paving way for participation by the public. It is unfortunate to state that

20 ‘Sports in India’ available at https://en.wikipedia.org/wiki/Sport_in_India (visited on January 24,

2017).
21 Integrated Stadium (Sports Infrastructure) Development Programme in 2015.
76 Contemprory Law Review [Vol. 1

some educational institutions for its glory compel students in academics

forgetting the other part of curricula, i.e., games and sports. After schooling,
students who aspire for higher studies are not getting an opportunity to play nor
so called educational institutions provide a platform to play. In a tussle between
the two, students who are well in academics will have a say in employment, and
the others have no place of employment in any field. This at a later stage may
lead to discrimination resulting into unemployment creating frustration and
compelling him to find a wrong path of life. Today, everyone aspires to become
a doctor, a lawyer or an engineer but why a good sportsman can’t. The
government must come forward in introducing the Sports Schools, Sports
Colleges and Sports Universities with a minimum educational qualification but
giving impetus to the sports who desire. Games and Sports is a neglected area and
if the government comes forward as a helping hand to those who aspire
completely for games and sports, hope India can get an opportunity of
participation in international games through ‘World Class Stadiums’. At this
juncture, if the government explores the possibilities of creating ‘Greenfield’ and
‘Brownfield’ Stadiums under the umbrella of Public-Private Partnership, then in
India the development of stadiums will become a reality which in turn encourages
games and sports making the nation healthy and wealthy. Hence, a National
Policy on Infrastructure of Stadiums is the need of the hour.

****
 INTERNATIONAL TAX TREATIES AND DEVELOPING
INDIAN ECONOMY : AN ANALYSIS
Anindhya Tiwari
ABSTRACT
Where a taxpayer is resident in one country but has a source of
income situated in another country, it gives rise to possible
double taxation. This arises from two basic rules that enable the
country of residence as well as the country where the source of
income exists to impose tax, namely, (i) source rule and (ii) the
residence rule. The source rule holds that income is taxed in the
country in which it originates irrespective of whether the income
accrues to a resident or a non-resident whereas the residence
rule stipulates that the power to tax should rest with the country
in which the taxpayer resides. If both rule apply simultaneously
to a business entity and it were to suffer tax at both ends, the
cost of operating in an international scale would become
prohibitive and deter the process of globalization. It is from this
point of view that Double taxation avoidance Agreements
(DTAA) become very significant. This double taxation
agreement shall form part of the local laws of the state. If it
cannot be enforced, it will not serve its purpose. This is an
accepted principle of such agreement that is automatically
becomes part of domestic law through agreement itself or the
convention as is usually described, is made by approval of the
legislature or where the legislature as in India has already
delegated such power to the executive, the formal approval of
executive by notification or such other means of ratification.
__________________________________________________
Keywords: merger, amalgamation, foreign direct investment,
Companies Act, Competition Act, Income Tax Act, OECD.
Introduction
In the present era of cross border transactions around the globe, the effect of
taxation is one of the most important considerations for any trade and investment
decision in other various countries. One of the most significant results of
globalization is the visible impact of one-country domestic tax policies on the
economy of the other countries. This has led to the need for continuously
assessing the tax regimes of various countries and bringing about various reforms
in them. Where a taxpayer is resident in one country but has a source of income
situated in another country it gives rise to the possibility of double taxation. This
arises from the two basic rules that enable the country of residence as well as the
country where the source of income is present. If both rules are to be applied
simultaneously to a business, entity and it were to suffer tax at both the ends. The

 Assistant Professor, School of Law, Galgotias University, Greater Noida, Uttar Pradesh, e-mail:
[email protected].
78 Contemprory Law Review [Vol. 1

cost of operating on an international scale would become prohibitive and would

seriously harm the process of globalization. This research paper discusses the
intricacies of today’s modern world of advanced globalization where any
business is not restricted to a single territory and crosses all borders of all
countries. This had emerged as complex world of business along with complex
world of accounting and taxation.
Cross-border transactions across the world, due to unique growth in
international trade and commerce and increasing interaction among the nations,
residents of one country extend their sphere of business operations to other
countries where income earned taxed. One of the most significant results of
globalization is the noticeable impact of one country’s domestic tax policies on
the economy of another country. This has led to the need for incessantly assessing
the tax regimes of various countries and bringing about indispensable reforms.
Therefore, the consequence of taxation is one of the important considerations for
any trade and investment decision in any other countries. Fiscal jurisdiction is
often the most aggressively protected jurisdiction in India. Consequently, even in
times when economies are going global and borders vanishing, leading to liquid
movement of goods, services and capital, double taxation is still one of the major
obstacles to the development of inter-country economic relations. India are often
forced to negotiate and accommodate the claims of other nations within their
heavily defended fiscal jurisdiction by the means of double taxation avoidance
agreements, in order to bring down the barriers to global trade.
Where a taxpayer is resident in one country but has a source of income
situated in another country, it gives rise to possible double taxation. This arises
from two basic rules that enable the country of residence as well as the country
where the source of income exists to impose tax, namely, (i) source rule and (ii)
the residence rule. The source rule holds that income is taxed in the country in
which it originates irrespective of whether the income accrues to a resident or a
non-resident whereas the residence rule stipulates that the power to tax should
rest with the country in which the taxpayer resides. If both rule apply
simultaneously to a business entity and it were to suffer tax at both ends, the cost
of operating in an international scale would become prohibitive and deter the
process of globalization. It is from this point of view that Double taxation
avoidance Agreements (DTAA) become very significant.
For this purpose, only1 Double Taxation Avoidance Agreements (hereinafter
referred to as DTAA) become very significant. The country has a right to tax on
the profits earned in its territory by anyone and it has the right to tax the global
income of its residence. This leads to taxation of the same income more than once
in two countries. To avoid this double taxation of same income, countries are
entering into double tax avoidance agreements with each other. There is generally
bilateral agreement entered into by two countries, however there are also multi-
lateral agreements, entered into between two or more countries. It lays down the
rules for taxation of income by the source country and the country of residence;

1 ‘Double taxation relief’ available at

http://www.icaiknowledgegateway.org/littledms/folder1/chapter15 doubletaxationrelief.pdf, (visited
on May 30, 2016).
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 79

such rules is laid for various heads such as interest, dividend, royalties, capital
gains and business income.
Constitution of India and DTAAs
The constitution of India has conferred the sovereign power to levy taxes and
to enforce collection and recovery thereof on the state under Article 265 by
mandatorily providing that no tax be levied or collected, except by authority of
law. The power to levy taxes conferred on Union in respect of matters falling
within its ambit in List-I of Schedule-VII of the constitution. While the powers
to levy taxes conferred on the state, legislatures are relatable to all and fall within
the ambit of scope of List-II to Schedule-VII but largely matters falling under
List-III relate to the administration of states. The specific entry in the Seventh
Schedule, which empowers the Union of India to enter into treaties and
agreements with foreign countries and implementation of such treaties,
agreements and conventions with foreign countries, is Entry-14 List-I in
Schedule-VII to the constitution of India.
Treaty v. Constitution-The importance of recognizing the right of the
government of this day to negotiate agreements, which will bind not only itself
but also even successive government, has recognized, by incorporating a
provision relating to international agreements as a part of the directive principles.
While directive principle may not be justifiable in the sense, in which the
Fundamental rights are. The 42nd Constitutional Amendment to the given
Directive principle (hereinafter referred as ‘DPSP’) force of law by insertion of
Article 31C was however, shot down by the Supreme Court in Minerva Mills.2
The earlier view was that fundamental rights and the Directive principles
supplement each other or fundamental rights has been found to be unacceptable
in that the majority held that the DPSP are merely directory, unless they are
supported by legislation, but again in a manner that they cannot damage or
destroy the basic structure of the constitution. However, Directive principle has a
role to play because no law implementing Directive principle can ever violate the
basic structure of our constitution as decided in Waman Rao.3 However, the
decision in Sanjeev Coke Mfg. Co.4 restored for the Directive principle greater
authority than what the earlier two decisions had indicated, where legislation in
pursuance of Directive principle was upheld as constitutional based on the
emended Article 31C.
A provision in the Directive principle for international agreements indicated
the recognition of the importance of such agreements in our constitution. It is
because, as pointed out by H.M. Seervai5 written that our courts have endorsed
Directive principle wherever possible though such Directive principle cannot
override the explicit constitutional provisions. Article 51 reads as under:
The state shall endeavor to - (a) Promote international peace and security, (b)
Maintain just and equitable relations between nations, (c) Foster respect for

2 Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789.

3 Waman Rao v. Union of India AIR (1981) SC 271.
4 Sanjeev Coke Mfg. Co. v. Bharat Cooking Coal Co. Ltd. AIR (1983) SC 293.
5 H.M. Seervai, COMMENTARY ON CONSTITUTIONAL LAW OF INDIA, Vol. 3, 4th ed. 2008.
80 Contemprory Law Review [Vol. 1

international law and treaty obligations in the dealings of organized peoples with
one another and (d) Encourage settlement of international dispute by arbitration.
Corresponding power of the executive to exercise rights under such
international treaties and discharging the obligations under such treaties and
agreements have been defined in the Constitution while executive power has
come up for consideration in Ram Javaya6 where it was observed that it may not
be possible to frame an exhaustive definition what executive function means and
implies. Ordinarily, the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions are taken away.
Article 73 of the constitution deals with executive power of the union which reads
as:
“(1) Subject to the provision of this constitution, the executive power of the
union shall extend,
(a) to the matters with respect to which the Parliament has the power to
make laws and,
(b) to the exercise of such rights, authority and jurisdiction as are
exercisable by the Government of India by virtue of any treaty or
agreements.”7
Hence, the power of the executive to exercise the power of GoI by virtue of
any treaty agreements gets special recognition under Article 73, which enables
endorsement of the rights under treaties and agreements, which the executive is
obliged to observe as parts of its duties. It would appear that even supplementing
legislation, where it is permitted by the local law, may well be consistent with
executive power as pointed out in the decision Amritlal v. Union of India.8 where
it was held that in addition to these quasi-legislative judicial functions which are
strictly legislative and strictly judicial in character, and in certain instances,
powers are exercised which appear to partake at the same moment of legislative,
executive and judicial characteristics. In view of the complexity of modern
government and the congestion of parliament business, it is probably necessary
that the executive should exercise powers of subordinate legislation. Whether it
should exercise purely political powers is more open to question.
Article 73 of the Constitution of India while not binding Parliament which is
supreme, has the effect of recognizing treaty override when it places limitations
on the executives to exercise its right, authority and jurisdiction in consonance
with treaty obligations in the light of the fact, that executive and legislative
powers are coextensive under the Indian Constitution as was upheld in the case
of Naraindas9 and Bishamber.10 In Gramophone Company of India Ltd.11 it was
held that the interpretation of domestic law has to be done within the legitimate
limits imposed by treaty obligations. It is because Article 73 specifically provides
that the executive power of the Union shall extend, inter alia to the exercise of
such rights, authority and jurisdiction as are exercisable by the GOI by virtue of

6 Ram Javaya Kapur v. State of Punjab AIR 1955 SC 549.

7 P.M. Bakshi, THE CONSTITUTION OF INDIA, ed. 2016.
8 Amritlal v. Union of India AIR 1964 SC 648.
9 Naraindas v. State of MP AIR 1974 SC 1532.
10 Bishamber v. State of UP AIR1982 SC 32.
11 Gramophone Company of India Ltd. v. Birender Bahadur Pandey AIR 1984 SC 687.
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 81

any treaty or agreement. The Supreme Court in Kubic Darius12 held that
parliament has provided for DTAA as part of the IT Act so that ambiguity in
interpretation of law would be resolved with reference to the treaty. Courts in
different decisions ranging from CIT v. Davy Ashmore India Ltd.,13 CIT v. R.M.
Muthaih,14 CIT v. VR. S. RM. Firm15 and Arabian Express Lines Ltd.16 cases have
accepted that provisions of the treaty should override domestic law in different
contexts.
The Halsbury Law of England would treat double tax relief as supplementing
legislation in view of the fact that such agreements are authorized by the
legislation itself with treaty being treated as such supplemented legislation in
pursuance of the obligation to implement the double taxation arrangements
authorized by the income tax law. However, there is a formality of promulgation
of an order in council bringing into effect pro-tanto the relevant provisions as part
of the Income-tax act. However, the present position of law, it would appear, is
that such is treated as a part of domestic law.17
Internationally also, it is well established that in most of countries that tax
treaties do not impose tax. The Supreme Court of Canada reiterated this principle
in the Melford Developments-“It is well to remind ourselves in analyzing these
statutes and the subtended tax Agreement that the international Agreement does
not itself levy taxes but simply authorizes the contracting parties, within the terms
of the Agreement, to do so.” 18
Similarly, Klaus Vogel, in his treatise on double taxation conventions, states,
“It is a widely recognized principle of treaty law that DTCs [double taxation
conventions] rather than being capable of creating new tax liabilities, can do no
more than restrict existing ones.”19
A similar domestic tax benefit provision is included in virtually all US tax
treaties. In the United States too, the provision has received little attention,
although it was applied in one case20 and in a few administrative rulings.
Generally, the US literature examining the provision is skimpy. However, in
1992, the American Law Institute (ALI) published a study of US income tax
treaties, which enunciated some principles for the application of the provision.21

12 Kubic Darius v. Union of India AIR 1990 SC 605.

13 CIT v. Davy Ashmore India Ltd. (1991) 190 ITR626 (Cal.).
14 CIT v. R.M. Muthaih (1993) 202 ITR 508 (Ker.).
15 CIT v. VR. S. RM. Firm and Arabian Express Lines Ltd. (1994) 208 ITR 400 (Mad.).
16 Arabian Express Lines Ltd v. Union of India (1995) 212 ITR 31 (Guj).
17 S. Rajarathnam and B.V. Venkataramiah, TREATIES ON DOUBLE TAXATION AVOIDANCE
ACT, 5th ed. 2010, Vol. I, p. 156.
18 The Queen v. Melford Developments Inc. 82 DTC 6281, at 6285; [1982] CTC 330, at 335 (SCC).
19 Klaus Vogel, DOUBLE TAXATION CONVENTIONS, 1991, pp.75-76.
20 Brian J. Arnold, ‘The relationship between Tax treaties and the Income Tax Act: Cherry picking’,
(1995), Vol 43 No. 41 no. 4, Canadian Tax Journal, p. 872.
21 American Law Institute, ‘International Aspects of United States Income Taxation II: Proposals on
United States Income Tax Treaties’, Hugh J. Ault and David R. Tillinghast, reporters (Philadelphia:
American Law Institute, 1992), 80-83 (herein referred to as “the ALI study”). My interest in the subject
has its origin in the ALI study, and this article relies substantially on the analysis in the study. See also
Stephen M. Brecher, ‘Relationship of, and Conflicts Between Income Tax Treaties and the Internal
Revenue Code’ (April 1972), 24 the Tax Executive pp.175-197.
82 Contemprory Law Review [Vol. 1

Existence and Operation of DTAA with reference to OECD and UN

Models- The purpose of OECD model is to remove the burden of double taxation,
which harms the movement off capital, goods and services, technology and
persons as between enterprises, UN model would claim, besides the normal
objective of double tax avoidance, the goal of subjective removal of
discrimination between taxpayers in the international field and provision of a
reasonable element of legal and fiscal certainty as a framework within which
international operations can be carried on. It also stresses the objective of co-
operation between tax authorities in carrying out their duties, an indication of the
joint effort to tackle tax evasion.22 While avoidance of fiscal evasion has been
one of the professed objectives, the impediments for exchanging information
consistent with the requisite confidentiality, conflicts between domestic laws,
absence of a system of unilateral supply of information useful to the authorities
in the other country on a reciprocal basis had not brought about any significant
impact in this direction. A commentary on UN Treaty Model Tax Convention,23
the need for a special approach for developing countries was addressed. It is in
the approaches as between developing and developed countries, US Model which
is intended to be the basis of US treaty negotiations published in 1976, revised in
the year 1977, 1981, 1992, 1995 and 1996 holds out as a treaty agreement so that
the countries negotiating with US know what is to be experienced from the US in
the negotiation.24 One standing example is the reason for delay in conclusion of
the agreement as between UK and India mainly on the point of difference as to
manner of revenue sharing in respect of tea industry, where tea is grown and
processed in India is auctioned in London, both countries laying right to a big
share of what they considered to be the basis of accrual of major part of the
income or value addition. Shipping and air transport has been a matter of
negotiations as between countries, which have a good fleet of ships and aircraft
and a developing country, which has not.25
An agreement though signed by the countries would not come into effect
until necessary Notifications are issued. In Narasia Lines (Malta) Ltd. v. Deputy
CIT,26 it was held that in the Article 29 of the agreement, that the agreement shall
come shall come into force 30 days after the notification date and only after the
first day of April of the calendar year next following that by which the agreement
comes into force. The High Court observed that after a crucial and close reading
if Article 29(2) of the treaty in question, we are of the view that it gives only one
meaning and there is no ambiguity in the wording used. It’s clear that in India,
benefit in India can be availed of only for the fiscal year a starting from April 1,
1996 to March 31, 1997, starting after the first day of the next calendar year 1995.
The next calendar year is 1996-97. Hence, benefit can be availed of for the year
starting from April 1, 1996. Benefit can be availed of in the fiscal year starting

22 S. Rajarathnam and B.V. Venkataramiah, TREATIES ON DOUBLE TAXATION AVOIDANCE

ACT, 5th ed. 2010, Vol. I, p. 107.
23 Kluwer Devonter, COMMENTARY ON UN MODEL TAX CONVENTION BY INTERNATIONAL
FISCAL ASSOCIATION, ed. 1979, p. 304.
24 Ibid.
25 Supra n. 22, p. 108.
26 2005 ITR 268 (Ker.).
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 83

from April 1, 1996 i.e. the next calendar year. The words fiscal year in India and
in Malta are also explained in the agreement. Further as per normal English
grammar, the relative pronoun that will only refer to the nearest proximate subject
otherwise it will be an error of proximate and that cannot refer to the fiscal year,
but only to a cleaner year next which was used immediately after calendar next
refers to fiscal year we are of the opinion that we cannot come to the meaning
attributed by the assessee. We cannot rewrite the words in the agreement merely
because it is benefitted to the assessee.
‘The powers of the Union of India to enter into various treaties for
arrangements and agreements with foreign nations, for bilateral understanding of
each other’s scope of operations and the role to play in matters of commerce,
trade, industry and finance between the two nations has been rightly pointed out
in the case of Motilal v. Uttar Pradesh Govt.27 and in the case of Nirmal v. Union
of India.28
In the case of Sri Krishna Das v. Town29 Area Committee in this case the SC
explained the concept of double taxation in the context of levying of fees and
taxes by different authorities under various legislations to hold that such levy of
taxes and fees in other legislations in one case would constitute double taxation.
In another case of Bhim Sen Khosla v. CIT30 in this case the court laid down
the principle that Income Tax Department is not entitled to tax the same income
twice whether for the same year or for a previous year. It was also made clear in
the case that the Income Tax Department is under an obligation to relieve the
assesse from the effects of double taxation by taking appropriate steps.
In Rattanlal v. ITO31 in this case also it was emphasized the principle that
unless the legislature has expressly or by necessary implication sanctioned
imposition of double taxation, the provisions of law cannot be so construed as to
impose the burden of tax on the concerned person twice over in respect of the
same income .
In a case of the Madras High Court TNK. Govindrajulu Chetty & Co v. CIT32
in this case the court observed that the principles to be followed in the matter of
applying the rule against double taxation on the assesse. In any taxation system,
the residential status of the taxpayer is of crucial significance. Residential status
confirms the jurisdiction and the application of taxation accountabilities.33
The first international initiative regarding DTAA was taken by the
Organization for Economic Co-operation and Development. OECD presented the
first draft of DTAA in ‘Model Tax Convention on Income and on Capital’34.
DTAA was proposed as a tool of standardization and common solutions for cases
of double taxation to the taxpayers who are engaged in industrial, financial or
other activities in other countries. The double tax treaties are negotiated under

27 Motilal v. Uttar Pradesh Govt. AIR 1961 All 257.

28 Nirmal v. Union of India AIR 1959 506 (Cal).
29 Sri Krishna Das v. Town Area Committee (1990) 183 ITR 401 SC.
30 Bhim Sen Khosla v. CIT (1982) 133 ITR 667 (Del).
31 Rattanlal v. ITO (1975) 98 ITR 681 (Del).
32 TNK Govindrajulu Chetty & Co. v. CIT (1964) 51 ITR 731 (Mad).
33 CA A. K. Jain, ‘Double Taxation Avoidance Agreements’, available at
http://www.tjaindia.com/articles/dtaa.pdf, (visited on May 30, 2016).
34 Ibid.
84 Contemprory Law Review [Vol. 1

international law and are governed by the principles laid down under, Vienna
Convention on the Law of Treaties.
Origin of Double Taxation Avoidance Agreements
As far as India is concerned, the first concrete step against double taxation
was taken in 1939 when the Income tax (Double Taxation Relief) (Indian States)
Rules were framed. It also appeared in what is now Germany, as treaties between
certain component states of Prussia. The first bilateral DTAA was entered into by
Prussia and Austria in 1899. A DTAA was concluded by Hungary and Austria in
1909. However, few DTAAs were entered into from then until the 1920s, when,
after World War-I, Germany embarked upon forming a number of DTAAs with
its neighbours.
It was felt that the necessity to have a model agreement which can be a good
reference in framing double taxation avoidance agreement between two foreign
states. That is how The League of Nations introduced the first model bilateral
convention in 1928. After that in 1943 the model convention of Mexico and in
1946 the London model convention was getting introduced. Later in 1956 the
council of the organization for European economic cooperation established a
fiscal committee to formulate a model convention. In 1963 for the very first time
the first draft double taxation convention on income and capital was enacted.
Finally, in 1977 OECD model convention and commentaries came into existence.
In 1992 OECD published model convention.
In 1921, the League of Nations, acting through its financial Committee in
response to an appeal by the 1920 Brussels International Financial Conference
for action aimed at eliminating double taxation, entrusted a team of four
economists from (Italy, Netherlands, United Kingdom and United States of
America) with the task of preparing a study on the economic aspects of
international double taxation.35
In 1929, pursuant to a recommendation of the General Meeting of
Government Experts, the Council of the League of Nations appointed a
permanent Fiscal Committee. The latter devoted considerable attention to the
question of formulating, for tax purposes, rules for allocation of the business
income of undertakings operating in several countries. Within the framework of
those activities, a Draft Convention for the Allocation of Business Income
between States for the Purposes of Taxation was formulated, first at meetings of
a subcommittee held in New York and Washington under the authority of the
American Section of the International Chamber of Commerce, and then at the full
meeting of the Fiscal Committee in June 1933. The Draft Convention was revised
by the Fiscal Committee in June 1935. On 22 February192836 Hungary and
Yugoslavia concluded a convention for the prevention of double taxation in the
matter of direct taxes. The convention is based on the distinction between
impersonal and personal taxes, both the terms being interpreted in their ordinary
sense.

35 Mitchell B. Carroll, GLOBAL PERSPECTIVES OF AN INTERNATIONAL TAX LAWYER, 1978.

36 League of nations fiscal committee, Report to The Council on the Work of the Second Commission of
the Committee, Geneva, May 22-31, 1930.
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 85

As regards the exemption of shipping the committee can mention in addition

to article 12 of the above mentioned treaty 7 Agreements between Belgium and
Sweden may 31, 1929, Canada and Japan 21 September 1929, Canada and
Netherlands September 23 1929, Canada and Greece September 30 1929, Canada
and Sweden 21 November 1929, France and Sweden December 19 1929, Canada
and Germany 17 April 1930.
The Council of OEEC adopted its first recommendation concerning double
taxation on 25 February 1955,37 that recommendation subsequently resulted in
the establishment of the OEEC Fiscal Committee in March 1956. In July 1958,
the Fiscal Committee was instructed to prepare a draft convention for the
avoidance of double taxation with respect to taxes on income and capital as well
as concrete proposals for the implementation of such a convention. In the words
of the Fiscal Committee: “Since the work of the League of Nations, the value of
a Model Convention has been universally recognized not only by the national
authorities but also by the taxpayers themselves.”
From 1958 to 1961, the Fiscal Committee prepared four reports, published
under the title “The elimination of double taxation,” in which the Committee
proposed a total of 25 articles. After OEEC became the Organisation for
Economic Cooperation and Development (OECD) in September 1961, the
mandate of the Fiscal Committee was confirmed; the Committee subsequently
agreed on a number of new articles and all the articles were embodied in a report
entitled “Draft Double Taxation Convention on Income and on Capital,”
published in 1963.38
In July 1963, OECD, recognizing that the effort to eliminate double taxation
between member countries needed to go beyond the field of periodic taxes on
income and capital, instructed the Fiscal Committee to work out a draft
convention, which would provide a means of settling on a uniform basis the most
common problems of double taxation of estates and inheritances.39 The “Draft
Convention for the Avoidance of Double Taxation with Respect to Taxes on
Estates and Inheritances” was published in 1966.
In 1967 the Fiscal Committee- renamed in 1971 “Committee on Fiscal
Affairs” began revising the 1963 “Draft Double Taxation Convention”. That
revision was considered necessary in order to take account of experience gained
by Member countries in negotiating new conventions or in their practical working
and also of “the changes in systems of taxation and the increase in international
fiscal relations on the one hand and, on the other, the development of new sectors
of business activity and the increasingly complex forms of organization adopted
by enterprises for their international activities. The revision of the 1963 ‘Draft
Convention’ ultimately led to the publication of the 1977 “Model Double
Taxation Convention on Income and on Capital.” It has recently undergone
revisions in 1992, 1994, 1995 and 1997.

37 League of Nations, Fiscal Committee: Report on the Work of the Tenth Session of the Committee,
held in London from March 20th to 26th, 1946 (C.37.M37. 1946.II.A), p. 8.
38 Organization for Economic Cooperation and Development: Draft Double Taxation Convention on
Income and Capital: Report of the OECD Fiscal Committee (Paris, 1963), p. 25, para. 49.
39 Kubic Darius v. Union of India AIR 1990 SC 605.
86 Contemprory Law Review [Vol. 1

As it had done for the 1963 ‘Draft Convention’, the Council of OECD, in a
recommendation based on a suggestion by the Committee on Fiscal Affairs and
adopted on 23 October 1997, recommended to the Governments of member
countries” to pursue their efforts to conclude bilateral tax conventions on income
and on capital with those member countries, and where appropriate with non-
member countries, with which they have not yet entered into such conventions,
and to revise those of the existing conventions that may no longer reflect present
day needs, and when concluding new bilateral conventions or revising existing
bilateral conventions to conform to the Model.
Law of Conventions and Treaties
To understand the concept of DTAA first we must understand the concept of
a treaty as to this will lead us to further understanding the genesis behind the
concept of DTAA, as it is a form of a bilateral treaty was signed between two
nations. A significant role of a DTAA between two or more countries is to remove
the double taxation, which is an impediment to cross-border trade in goods and
services, and the movement of capital and people between countries. Many
countries have now entered into scores of comprehensive DTAAs with other
countries to assist in the avoidance of double taxation. The second purpose of a
DTAA is the prevention of fiscal evasion, which can reduce a country’s tax base
where a taxpayer has economic connections with more than one country.
The domestic laws of most countries, including India, mitigate this difficulty
by affording unilateral relief in respect of such doubly taxed income (Section 91
of the Income Tax Act). But as this is not a satisfactory solution in view of the
divergence in the rules for determining sources of income in various countries,
the tax treaties try to remove tax obstacles that inhibit trade and services and
movement of capital and persons between the countries concerned. It helps in
improving the general investment climate.40
The concept of PE finds its place in domestic laws of many countries. Owing
to a paramount importance in the field of taxation worldwide, the concept of PE
gained importance and was developed at an international level. The double tax
treaties (also called Double Taxation Avoidance Agreements or ‘DTAA’) are
negotiated under public international law and governed by the principles laid
down under the Vienna Convention on the Law of Treaties.41
In a classic judgment in CIT v. Vishakhapatnam Port Trust,42 the court had
referred to the major developments in the field of tax treaties In this case; the
assesse was itself a Government undertaking engaged in the trading transaction
with a non-resident German Company. It had undertaken to setup a plant in India
and the issue related to the extent of non-residents'.43Indian income liable to
Indian tax and the implication of the Double Tax Avoidance Agreement as
between India and Germany, the judgment, incidentally, refers to the

40 DTAA available at, http://www.TAXGURU.COM/DTAA/DOUBLE%

TAX%AVOIDANCE%AGREEMENTS%TAXATION.HTML (visited on March 13, 2016).
41 CIT v. VR. S. RM. Firm and Arabian Express Lines Ltd., (1994) 208 ITR 400 (Mad).
42 CIT v. Vishakhapatnam Port Trust (1983) 144 ITR (AP).
43 Aayushi Jai, A Critical analysis of the concept of double taxation avoidance agreement under the
Income Tax Act, 1961, available at http://jlsr.thelawbrigade.com/wp-
content/uploads/2015/10/Double-Taxation.pdf, (visited on May 20, 2016).
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 87

development of law on DTAA, which have them gone through various changes.
The fiscal committee of the League of Nations first prepared model forms
applicable to all countries in 1927. Later they said committee conducted meetings
at Mexico during 1943 and in London in 1946 and proposed several minor
variations.
Double Taxation Avoidance Agreement
It is an agreement between two sovereign states (separate and distinct
political entities). It has the status of a ‘treaty’ hence, its alternative name of
double tax treaty. “One of the most deeply protected jurisdictions of a country is
its fiscal jurisdiction. Therefore, in the era of globalization, double taxation
continues to be one of the major impediments to the development of international
economic relations. An individual who earned income has to pay income tax in
the country in which the income was earned and also in the country in which such
person was resident. As such, the liability to tax on the aforesaid income arises
in the country of source and the country of residence. The Fiscal Committee of
OECD in the Model Double Taxation Convention on Income and Capital, 1977,
defines double taxation as ‘the imposition of comparable taxes in two or more
states on the same tax payer in respect of the same subject matter and for identical
periods.’ Whereas a tax payer’s own country (referred to as home country) has
a sovereign right to tax him, the source of income may be in some other country
(referred to as host country) which also claims right to tax the income arising in
that country.”44
The concept of double taxation has been the subject matter engaging the
attention of the courts in India and abroad from time to time.45 The Supreme Court
in Laxmipat Singhnia v. CIT46 has made it clear that it is a basic rule of the law
of taxation that unless otherwise expressly provided income cannot be taxed
twice. Again, it is not open to the Income Tax Officer, if the income has accrued
to the assessee and is liable to be included in the total income of a particular year,
to ignore the accrual and thereafter to tax it as the income of another year based
on receipt.
A DTAA is therefore a contract signed by two countries (referred to as the
contracting states) to avoid or alleviate territorial double taxation of the same
income by the two countries. Any amendment or addition to such an agreement
is known as ‘a protocol’.47 Double taxation avoidance agreements are designed
to promote mutual trade and investment between the countries that have entered
into such agreements. They aim at ensuring that the same income is not taxed in
both countries, in the hands of the same entity.48 The basic objective is to promote
and foster economic trade and investment between two Countries by avoiding

44 Sarbapriya Ray, ‘A Close Look into Double Taxation Avoidance Agreements with India: Some
Relevant Issues in International Taxation, International Affairs and Global Strategy’, Vol 2, 2011.
45 R. Santhanam, HANDBOOK ON DOUBLE TAXATION AVOIDANCE AGREEMENTS & TAX
PLANNING FOR COLLABORATIONS, 5th ed. 2001, p. 455.
46 Laxmipat Singhania v. CIT (1969) 72 ITR 291 (SC).
47 ‘Double Taxation Avoidance Agreements’, available at http://www.ssrn.com/abstract=2036494
(visited on May 31, 2016).
48 Klaus Vogel, DOUBLE TAXATION CONVENTIONS, 1991, pp. 75-76.
88 Contemprory Law Review [Vol. 1

double taxation. Double taxation is the levying of tax by two or more jurisdictions
on the same declared income, profits, dividend, interest, royalties, etc.49
The DTAA is a positive step taken towards the avoidance of double taxation
that may be faced by individuals or enterprises, or persons, in general, including
companies in another state apart from their state of residence by virtue of a
presence, economic and otherwise in such other state.50 The initiative of
elimination of double taxation was originally taken up by the League of Nations,
and was pursued in the OEEC (Organisation for European Economic Co-
operation),which is presently known as the OECD (Organisation for Economic
Cooperation and Development).
Need for DTAA
The need for Agreement for Double Tax Avoidance arises because of
conflicting rules in two different countries regarding chargeability of income
based on receipt and accrual, residential status etc. As there is no clear definition
of income and taxability thereof, which is accepted internationally, an income
may become liable to tax in two countries.51
In such a case, the two countries have an Agreement for Double Tax
Avoidance, in which case the possibilities are: (i) The income is taxed only in one
country. (ii) The income is exempt in both countries, and (iii) The income is taxed
in both countries, but credit for tax paid in one country is given against tax
payable in the other country.
In India, the Central Government, acting under Section 90 of the Income Tax
Act, authorises to enter into double tax avoidance agreements (hereinafter
referred to as tax treaties) with other countries.52 The double taxation avoidance
agreement is an agreement, which helps the taxpayer to get relief from double
taxation on the same income. If India has signed any double taxation agreement
with any foreign country, it has meant that the taxpayer of those countries does
not have to pay the tax on the same income in both the countries. In case of
claiming relief under double taxation avoidance agreement, two important things
are required to find out. These are: (i) The country of residence and (ii) The source
country.
Here ‘the country of residence’ means where the assesse resides and the
source country is any foreign country other than where he resides, but the assesse
earn some income from that foreign state. In that case if the two countries does
not sign any DTAA then the assess has to pay tax in both the state i.e. the country
of his residence as well as the source country, this is why double taxation
avoidance is so much important. When an Indian businessman makes a profit or
some other type of taxable gain in another country, he may be in a situation where
he will be required to pay a tax on that income in India, as well as in the country
in which the income was made! To protect Indian taxpayers from this unfair
practice, the Indian government has entered into tax treaties, known as Double

49 ‘Articles of the Model Convention with respect to taxes on income and on capital’, available at
http://www.oecd.org/tax/treaties/1914467.pdf, (visited on May 29, 2016).
50 ‘DTAA’ available at http://www.ssrn-id2303595.pdf, (visited on May 29, 2016).
51 Assessment guidelines available at http://www.caindelhiindia.com/Assets/Guidance/DTAA%202.pdf,
(visited on March 17, 2016).
52 Sri Krishna Das v. Town Area Committee (1990) 183 ITR 401 SC.
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 89

Taxation Avoidance Agreements. Its basic objective is to promote and foster

economic trade and investment between two countries by avoiding double
taxation. In general terms it means taxing the same income twice once in the host
country and secondly in the home country.53
Under a DTAA, the Contracting States mutually undertake to respect and
apply the DTAA provisions. This is one of the fundamental principles of law of
DTAAs. Yet, it is essential to bear in mind that DTAAs may not always override
domestic laws. The practice differs from country to country. It is important to
understand what the status of the DTAA is under the domestic law and what its
relationship with the domestic law is.54
There are two approaches to this. Under the first approach, the countries treat
both the International Law and the domestic law as part of the same legal system
and give International Law precedence over domestic law. Under the second
approach, both the DTAAs and domestic laws are treated as separate legal
systems and in case of a conflict; it is the domestic law, which is given priority
by the domestic courts. In Union of India v. Azadi Bachao Andolan,55 the
Supreme Court made reference to the OECD Model Convention, 1977 and the
commentaries thereon, where an expression in the agreement before it was
adopted from that Convention. Earlier, the AP High Court56, had, while referring
to various foreign authorities approved observations to the effect that in view of
the standard OECD models, an area of genuine 'international tax law' was
developing, and therefore, any person interpreting a tax agreement should
consider the decisions and rulings worldwide relating to similar agreements.
Therefore, the model convection and commentaries may be useful guides when
the agreement before the court is similar to the model convention. In contrast, for
the purposes of interpretation of another agreement, the Madras High Court,
found reliance on the OECD Convention and commentaries inappropriate and
unjustified. It noticed a wide range of difference between the Model Convention
and the agreement thereon and hence concluded that commentaries on the Model
Convention ‘can be of no use and utility and cannot also afford a safe or reliable
guide or aid for such construction’. A person earning any income has to pay tax
in the country in which the income is earned (as Source Country) as well as in the
country in which the person is resident. As such, the said income is liable to tax
in both the countries.57
Where tax relief has been given by one country, the country of residence
generally allows credit for the tax so spared, to avoid nullifying the relief. If the
rate prescribed in the Indian Income-tax Act, 1961 is higher than the rate
prescribed in the Tax Treaty then the rate prescribed in the Tax Treaty has to be

53 ‘Double tax avoidance’ available at http://www.manupatra.com/roundup/361/Articles

/Double%20Taxation%20Avoidance.pdf, (visited on March 11, 2016).
54 CIT v. VR. S. RM. Firm and Arabian Express Lines Ltd. (1994) 208 ITR 400 (Mad.).
55 Union of India v. Azadi Bachao Andolan 263 ITR 706.
56 S. Rajarathnam and B.V. Venkataramiah, TREATIES ON DOUBLE TAXATION AVOIDANCE
ACT, 5th ed. 2010, Vol. I, p. 156.
57 ‘DTAA’ available at http://www.caindelhiindia.com/Assets/Guidence/DTAA%202.pdf, (visited on
May 24, 2016).
90 Contemprory Law Review [Vol. 1

applied.58 India has signed double taxation avoidance agreement with 88

countries. These agreements are very effective for the taxpayer who has income
in another foreign country other than where he resides. With the help of these
agreements protection of taxpayer from giving tax of the same income in two
times, can be avoided. The double taxation can be avoided by following
manners59 (i) The country where the taxpayer resides, can exempt the income that
is coming from foreign countries and (ii) The country where the taxpayer resides,
grant the credit for the tax paid in another foreign country.
Territorial double taxation obviously discourages international trade.60
Traders are better off trading within the state boundaries and suffer tax in one
country only. However, it is a widely accepted commercial reality that
international trade is economically good for the countries concerned, and that
international trade should be encouraged. Thus, countries believing in the benefits
of international trade would try to provide a more conducive environment for
cross-border trade by putting down rules to avoid or minimise double taxation.
Objectives and Subjects of DTAA
The fundamental principle of law and objectives of DTAA are (i) Protection
against double taxation,61 These Tax Treaties serve the purpose of providing
protection to tax-payers against double taxation and thus preventing any
discouragement which the double taxation may otherwise promote in the free
flow of international trade, international investment and international transfer of
technology, (ii) Prevention of discrimination at international context: These
treaties aim at preventing discrimination between the taxpayers in the
international field and providing a reasonable element of legal and fiscal certainty
within a legal framework, (iii) Mutual exchange of information: In addition, such
treaties contain provisions for mutual exchange of information and for reducing
litigation by providing for mutual assistance procedure, and (iv) Legal and fiscal
certainty: They provide a reasonable element of legal and fiscal certainty within
a legal framework.
Double taxation occurs mainly due to overlapping tax laws and regulations
of the countries where an individual operates his business. In such a case, the two
countries have an Agreement for Double Tax Avoidance, in which case the
possibilities are: (a) The income is taxed only in one country, (b) The income is
exempt in both countries and (c) The income is taxed in both countries, but credit
for tax paid in one country is given against tax payable in the other country.
Conclusion
The need for the companies to constantly expand their market share has made
the world a global village. The companies prefer to make a sound investment
decision and take into consideration all aspect of investments. Taxation of income

58 ‘DTAA’ available at
http://www.cainindia.org/news/9_2008/double_taxation_avoidance_agreement_.html, (visited on
May 24, 2016).
59 ‘DTAA’, available at http://businesstoday.intoday.in/story/how-treaties-with-foreign-countries-can-
help-nrissave-tax/1/194401.html, (visited on June 2, 2016).
60 CA A.K. Jain, ‘Double Taxation Avoidance Agreements’, available at
http://www.tjaindia.com/articles/dtaa.pdf (visited on May 30, 2016).
61 TNK Govindrajulu Chetty & Co. v. CIT (1964) 51 ITR 731 (Mad).
 2017] International Tax Treaties and Developing Indian Economy: An Analysis 91

earned is also one among the important considerations before making the
investment. To come out with the problem of double taxation the countries make
tax agreement. The Tax Treaties occupied different positions among different
constitutions of the world. For example, in America, treaty is an Act of
Legislation and the courts are bound to enforce the same. The American Senate
approves the treaty by two third majorities. The scholar in his Ph.D. research
thesis examines the approach of Supreme Court in Double Taxation Relief and
its effect on the nation. Further to see, whether there is change of the view of the
Supreme Court before and after the liberalization era. The Double Taxation
Avoidance agreement between India and Mauritius is being abused by the “treaty
shopping” for the purpose of fiscal evasion. The SC has interpreted the DTAA
and the Income Tax Act 1961 as to encourage mutual economic relations, trade
and investment between the contracting countries. The tax treaties in India are
not approved by the Parliament. It is also debatable topic that whether tax treaty
overrides the domestic law. Tax treaty will deal with the question of the
overlapping jurisdiction and resolve the issues concerning the taxation of income
based on residence or location. The conflict of interest has to be resolved by the
application of treaty provisions.
In order to strengthen economic cooperation and avail the better technology
and larger capital, India has entered into DTAAs with many countries. In India,
the power of Central Government to enter into an agreement with foreign country
has been given under Sections 90 and 91 of the IT Act 1961.The grant of double
taxation relief in terms of Sections 90 and 91 of the Income Tax Act 1961 has
been an area of controversy. The implementation of Indo- Mauritius DTAA has
also come in for criticism on the ground that it encourages tax evasion. The
companies not actually based in Mauritius chose to route their investment in India
through Mauritius taking advantage of the soft tax laws of that country.

****
 CAN PRAGMATISTS BE CONSTITUTIONALISTS?
DEWEY, JEFFERSON AND THE EXPERIMENTAL
CONSTITUTION
Shane Jesse Ralston
ABSTRACT
At the beginning of the present century, a debate over the
compatibility of constitutionalism and pragmatism ignited in the
pages of Administration and Society, an academic journal in the
field of public administration. Several scholars expressed
concern that Deweyan pragmatism, or the classic pragmatism
espoused by John Dewey and subscribed by some contemporary
philosophers, which might be incompatible with
constitutionalism, or the commitment to constitutional order
central to the administrative state tradition in public
administration. In this article, the issue at the center of this
debate in the field of public administration is re- framed more
generally for an audience of political philosophers and
constitutional scholars: Can pragmatists, and specifically
Deweyan pragmatists, be constitutionalists?
________________________________________________
Keywords: John Dewey, Thomas Jefferson, pragmatism,
constitutionalism, experimentalism.
Introduction
Our Constitution was framed and the system of government formulated in
the later decades of the eighteenth century. Since then inventions have occurred
which have produced more social changes in a hundred and fifty years than the
world had experienced in a thousand preceding years, but our governmental
mechanisms have, relatively speaking, stood still.1
At the beginning of the present century, a debate over the compatibility of
constitutionalism and pragmatism ignited in the pages of Administration and
Society, an academic journal in the field of public administration. Several scholars
expressed concern that Deweyan pragmatism, or the classic pragmatism espoused
by John Dewey and subscribed to by some contemporary philosophers, might be
incompatible with constitutionalism, or the commitment to constitutional order
central to the administrative state tradition in public administration.
In this article, the issue at the center of this debate in the field of public
administration is re-framed more generally for an audience of political
philosophers and constitutional scholars: Can pragmatists, and specifically
Deweyan pragmatists, be constitutionalists? In order to answer this question,

 Associate Professor of Philosophy, Penn State Hazleton, e-mail: [email protected].

1 John Dewey, Morals and Political Order, ETHICS, 7 LATER WORKS 352. Citations are to THE
COLLECTED WORKS OF JOHN DEWEY: ELECTRONIC EDITION (Larry A. Hickman, ed.
1996), EARLY WORKS (hereinafter ‘EW’), MIDDLE WORKS (hereinafter ‘MW’) or LATER
WORKS (hereinafter ‘LW’).
2017] Can Pragmatists be Constitutionalists? 93
Dewey, Jefferson and the Experimental Constitution
Dewey’s pragmatism is defined in terms of his experimental approach to inquiry
and action. An overview of the administrative state debate is presented, where the
claim emerges that constitutional limitations offend the experimentalism in
Dewey’s pragmatism. Next, three typical (though by no means exhaustive)
conceptions of constitutionalism are presented as outgrowths of originalism,
contextualism and formalism: (i) traditionalism (or that a constitution expresses
the traditions or mores of its drafters’ society), (ii) organicism (or that a
constitution is a living document, the meaning of which evolves with the
changing values and norms of each new generation) and (iii) functionalism (or
that a constitution functions as an ordering device, both creating and perpetuating
legitimate legal-political frameworks). Then, the issue of whether a founding
document modelled after each conception can preserve political stability amidst
some level of tolerable political change without offending Dewey’s
experimentalism is considered. In light of Dewey’s essay “Presenting Thomas
Jefferson,” it is asked: Does the acceptability of Jefferson’s notion of generational
sovereignty have any bearing on the matter of pragmatism and
constitutionalism’s compatibility? The article concludes with a final evaluation
of the extent to which Deweyan experimentalism can accommodate
constitutionalism in its various forms.
American Pragmatism and Public Administration
The goal in this first section is to articulate Dewey’s experimental
pragmatism and then show how its claimed incompatibility with
constitutionalism becomes a central issue in the administrative state debate.
Before accomplishing these two tasks, though, an examination of a conception of
pragmatism in administrative law, a conception comparably thinner or less
philosophically robust than Dewey’s experimental pragmatism, is in order.
Pragmatism in Administrative Law
U.S. administrative law states the legal boundaries set by Congress on the
discretion exercised by officials in administrative agencies. Since administrative
agencies did not proliferate in the executive branch until the twentieth-century,
especially with the rise of progressivism (and coincidentally, during the zenith of
American Pragmatism’s influence), the American Constitution is silent on the
matter of how to regulate the activities of administrative agencies. So, why should
we be concerned with administrative law if it is separable from constitutional
law? Some legal theorists argue that judicial intervention in the area of
administrative law epitomizes legal pragmatism in action.2
Pragmatism is thought to provide a superior normative framework for
judicial decision-making because of its several distinctive features. First, while
part of the executive branch, administrative agencies in the United States are

2 See, e.g., RICHARD A.POSNER, THE PROBLEMATIC OF MORAL AND LEGAL THEORY
(1999); Daniel L. Breen, HENRY J. FRIENDLY AND THE PRAGMATIC TRADITION IN
AMERICAN LAW ed. 2002; Sidney A. Shapiro, ‘Pragmatic Administrative Law’, ISSUES IN
LEGAL SCHOLARHIP: THE REFORMATION OF AMERICAN ADMINISTRATIVE LAW ed.
2005, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=653784; John R. Tennert, ‘Administrative
Law as pragmatism’, 29 Int. J. Pub. Admin. 1339-1361 (2006); Jessica Wang, ‘Imagining the
Administrative State: Legal Pragmatism, Securities Regulation, and New Deal Liberalism’, 17 J. Pol.
Hist. 257-293 (2005).
94 Contemprory Law Review [Vol. 1

created through legislative enactment by Congress and are subject to judicial

review. Though the U.S. Constitution says nothing about administrative agencies,
constitutional requirements of due process nevertheless constrain agency
exercises of discretion, including administrative rule-making and agency
enforcement of those rules. Administrative judges rule on disputes challenging
agency policies and decisions in either Congressionally-mandated Article I
tribunals or adjudicative bodies internal to agencies which are bound by the
administrative law procedures found in the Administrative Procedure Act of
1946. Second, in American law, judicial review of administrative agency
decisions is distinct from the normal appeals process, whether in state or federal
court systems. For administrative law courts, the scope of judicial review is
extremely limited. They can only review the procedural means by which an
agency reached its decision, not the decision’s acceptability on the merits. In
other words, means, not ends, matter. Since pragmatism is widely associated with
choosing proper means to achieve pre-given ends (or narrow instrumentalism),
administrative law is, therefore, thought to be ‘pragmatic’. Third, and lastly, U.S.
Supreme Court judge Stephen Breyer’s approach to administrative law has been
described as having “unmistakably pragmatic foundations.”3 Breyer claimed that
the intricate problems encountered by legislative and executive bodies when
regulating various industries are similar to the problems courts face when
regulating the discretion of administrative agencies. All three branches behave
pragmatically. So, rather than blindly defer to traditional doctrine, administrative
law judges should adapt legal principles to the demands of the regulatory
environment, considering the probable consequences of various regulatory and
priority-setting methods.4
Although administrative law is pragmatic in the everyday sense of the term,
it is not pragmatic in the richly philosophical sense. In the vernacular, pragmatism
signifies a temperament common to Americans or a generic feature of the
American way of life. Robert Westbrook explains: “In ordinary speech, a
‘pragmatist’ is someone (often a politician) who is willing to settle for a glass
half empty when standing on principle threatens to achieve less. Pragmatists are
concerned above all about practical results; they have a “can do” attitude and
are impatient with those of a “should do” disposition who never seem to get
anything done. Americans are often said to be a particularly pragmatic people,
and many Americans pride themselves on a sensibility others are inclined to label
shallowly opportunistic.”5
In this vulgar sense, pragmatic has multiple synonyms: practical, expedient,
useful, and even entrepreneurial. Etymologically, the Greek root Pragma refers
to ‘things, facts, deeds, affairs’ and “action, from which our words ‘practice’ and
‘practical’ come.”6 Roughly equivalent to the vernacular, ‘pragmatic’ also
denotes the activity of matching appropriate means to uncritically accepted ends-
that is, a form of narrow instrumentalism. In contrast, the more robust

3 Cass Sunstein, ‘Justice Breyer’s Democratic Pragmatism’, 115 Yale L. J. 1719 (2006).
4 Stephen Breyer, REGULATION AND ITS REFORM, 1984.
5 Robert Westbrook, DEMOCRATIC HOPE: PRAGMATISM AND THE POLITICS OF TRUTH, ed.
2005.
6 H.S. Thayer, MEANING AND ACTION: A CRITICAL HISTOR Y OF PRAGMATISM, ed. 1968.
2017] Can Pragmatists be Constitutionalists? 95
Dewey, Jefferson and the Experimental Constitution
instrumentalism endorsed by philosophical pragmatists involves both the
evaluation of ends and means. However, it is in this narrowly instrumental sense
that administrative law and, specifically, the scope of an administrative law
court’s review of agency decisions are described as pragmatic.
So, while there is a particular conception of pragmatism operative in
administrative law, particularly that exemplified Justice Breyer’s approach, it is
not a thick or philosophically significant form of pragmatism. Consequently, we
can distinguish the vernacular sense of pragmatism at work in administrative law
from Dewey’s philosophically rich pragmatism. In the administrative state
debate, the question, as we will see, becomes not whether pragmatism in
administrative law conflicts with constitutionalism, but whether philosophical
pragmatism, especially Dewey’s experimental version, is compatible with a deep
commitment to constitutional order.
Dewey’s Experimental Pragmatism
For Dewey, experimentalism manifests in a matrix of knowing and acting
events, involving the framing of a problem, operationalizing variables, proposing
hypotheses, testing them, observing/measuring results and treating the
experimental outcomes as fallible and revisable in the light of future inquiries.
Dewey reveals a generic pattern to experimental inquiry that widens its
application beyond the domain of experimental science. His five-step method of
inquiry was intended to apply to practical problems, or “problems of men,” not
solely to more specialized problems encountered in the laboratory. Dewey spells
out the five stages of experimental inquiry:
Upon examination, each instance [of intelligent inquiry] reveals more
or less clearly, five logically distinct steps: (i) a felt difficulty; (ii) its
location and definition; (iii) suggestion of possible solution; (iv)
development by reasoning of the bearings of the suggestion; (v) further
observation and experimentation leading to its acceptance or rejection;
that is, the conclusion of belief or disbelief.7
Dewey’s examples of experimental inquiry include figuring out how to get
to an appointment on time, identifying the function of a pole on the front of a
tugboat and determining why bubbles go outside and inside of a cup once washed
with hot water and placed upside-down on a kitchen counter.8 Conspicuously
absent from these examples are many touchstone elements of experimental
inquiry found in the hard and social sciences: (i) a research design, (ii) a
measurement instrument, (iii) a data collection process, (iv) a data analysis
technique, and (v) a method of generalizing data to a larger population. Thus,
while experimental science is a form of inquiry, inquiry is experimental in a more
general sense, that is, involving experimental operations relevant to both
common-sense and scientific problems: (i) observation, (ii) analysis, (iii)
manipulation and (iv) reflection upon the conditions and consequences of a
problematic situation.
Though Dewey identified a generic pattern to experimental inquiry, the five
stages do not represent a form of simple proceduralism (i.e., if these stages are

7 Supra n.1, pp. 6, 236.

8 Supra n.1, pp. 234-5.
96 Contemprory Law Review [Vol. 1

followed, then a successful outcome is guaranteed) or cognitive reductivism (i.e.,

all successful thinking necessarily reduces to these five stages). Instead, inquiry
is a process of reunifying a previously disrupted situation through intelligent
problem solving. Since the boundaries of a situation are not limitless, there will
always be areas of uncertain or unexplained experience left untouched by
experimental inquiry. Though cognitively intense and typically forward-looking,
the process of inquiry and experimentation can impart valuable lessons about the
content of our felt, had or enjoyed experiences as well as provide backward-
looking insight into past practices and traditions (including constitutions that
codify them). According to one legal pragmatist, “far from being unconcerned
with the past, [pragmatism] must be particularly sensitive to it.”9
The method of experimental pragmatism is well suited for studying the past
in order to resolve or ameliorate present problems. The key idea in Dewey’s
experimentalism is that inquiry does not achieve its purpose, whether the
production of reliable predictions or the creation of legal norms, by recourse to
non-experimental techniques, such as bald appeals to authority. Instead, it
achieves its purpose through a process of rigorous observation and testing leading
to the resolution of a problematic situation. In the penultimate section, the matter
of how norms, and particularly constitutional norms, are experimentally tested in
inquiry will receive further consideration.
The Administrative State Debate and Beyond
The issue of pragmatism’s compatibility with constitutionalism emerged in a
wider debate within the field of public administration. At the center of this
exchange was the issue of whether pragmatism possessed adequate theoretical
resources for public administration scholars and practitioners to exploit in
reaching a more thorough and actionable understanding of bureaucratic-
governmental organizations.10 Unlike the thin version of pragmatism embraced
by many administrative law scholars, though, this debate concerns the
compatibility of constitutional commitments with a thick or more philosophically
rich version of pragmatism.
James Stever fired the opening volley in the administrative state debate.11
While scholars such as Keith Snider and Karen Evans were able to demonstrate
that pragmatism and public administration occupy ‘parallel universes’ the issue
of whether the two can be capably integrated what Stever calls public
administration’s ‘fusion problem’ remains unsettled.12 The primary obstacle to

9 Michael Sullivan, LEGAL PRAGMATISM: COMMUNITY, RIGHTS AND DEMOCRACY ed.2007

“Sullivan’s main concern is to refute Ronald Dworkin’s caricature of legal pragmatism as wholly
forward-looking”.
10 See, e.g., Geoffrey Greene, PUBLIC ADMINISTRATION IN THE NEW CENTURY: A CONCISE
INTRODUCTION ed.2004 “Public administration is that academic discipline concerning the
development, institutionalization and reconstruction of bureaucratic-governmental organizations as
well as the policies they are tasked to implement” and Shane Ralston, ‘Pragmatism and Compromise’,
CIVIC AND POLITICAL LEADERSHIP (Richard A. Couto, ed. 2009.
11 James Stever, THE PARALLEL UNIVERSE: PRAGMATISM AND PUBLIC ADMINISTRATION,
ed. 2000, pp. 453-457.
12 Supra n. 11, p. 453; Keith Snider, ‘Expertise or Experimenting?’, PRAGMATISM AND AMERICAN
PUBLIC ADMINISTRATION, 1920-1950, ed. 2000 p. 329; Karen G. Evans, RECLAIMING JOHN
DEWEY: DEMOCRACY, INQUIRY, PRAGMATISM, AND PUBLIC MANAGEMENT, ed. 2000,
p. 308.
2017] Can Pragmatists be Constitutionalists? 97
Dewey, Jefferson and the Experimental Constitution
wedding public administration and pragmatism is the “administrative state
tradition” which, starting with Woodrow Wilson’s seminal call for scholars and
practitioners to study and compare administrative bureaucracies, has associated
the legitimacy of administrative state structures with the existence of a
constitution.13 In contrast, experimental inquirers in the pragmatist philosophical
tradition seek the best instrumentalities in order to address the problem at hand-
in this case, how to construct a stable, just and effective administrative apparatus-
regardless of the presence or absence of relevant constitutional constraints. Stever
infers from these differences that public administration’s pioneers, such as
Woodrow Wilson, who embraced the administrative state tradition, would never
accept Deweyan pragmatism.14 Therefore, pragmatism is incompatible with
constitutionalism
Stever’s claim that Dewey’s experimentalism and constitutionalism are
incompatible is disputed by others. Evans replies that Dewey’s pragmatism can
accommodate the administrative state’s commitment to constitutionalism so long
as the scope of experimentation is constitutionally limited.15 Likewise, Snider
insists that they are compatible.16 Where Stever’s two critics disagree is on the
issue of whether public administrators or bureaucrats need classic pragmatism to
involve citizens in the administrative process. Evans claims that grassroots or
participatory policy creation and implementation must be informed by Deweyan
experimentalism.17 Snider, on the other hand, objects that Deweyan
experimentalism is optional for citizen involvement in the policy making
process.18 Nevertheless, both agree that there is no feature of Dewey’s
pragmatism, including its experimentalism, which precludes a full-blown
commitment to constitutionalism.
While the administrative debate serves to frame the issue in a manner suitable
for public administration scholars and practitioners, it does little to address a
question of greater import for legal practitioners, political philosophers and
constitutional theorists, namely, whether pragmatists can be constitutionalists.
While acceptance of Snider and Evan’s positions invites a presumption in favour
of the thesis that Deweyan pragmatism is compatible with constitutionalism, the
administrative debate fails to plumb the depths of Dewey’s writings in order to
disclose sufficient evidence of that compatibility. The administrative state debate
also presents a very narrow construction of constitutionalism. Indeed, it proves
necessary to extract the issue from the administrative state debate in order to
advance the inquiry toward a conclusion that captures the complexity of Dewey’s
pragmatic experimentalism and expresses pragmatism’s compatibility with more
than one variety of constitutionalism.

13 Woodrow Wilson, ‘The Study of Administration’, 2 Poli. Sci. Q. 1-15 (1886).

14 Supra n. 11, p. 457 “It’s unlikely that Dewey’s casual treatment of constitutions will be acceptable to
the contemporary field of public administration.”
15 Supra n. 12, pp. 483-484.
16 Keith Snider, ‘Response to Stever and Garrison’, 32 Administration & Society, 2000, p. 488 “Dewey’s
[PRAGMATISM] . . . would simply not allow merely experimental or casual treatment of
constitutions or any other state institution.”
17 Supra n. 12, p. 484.
18 Supra n. 16, p. 488 “an experimentalist . . . flavor in any movement [to involve citizens in policy
planning and implementation] does not necessarily qualify it as pragmatism.”
98 Contemprory Law Review [Vol. 1

Varieties of Constitutionalism
Constitutionalism’s core idea is that government authority, in order to be
rightfully exercised (whether through legislative, judicial or executive action),
must first be properly authorized and constrained by a written or unwritten body
of higher-level rules (or laws), properly enacted and recognized as the
legitimating source of all lesser rules (or laws) what James Buchanan refers to as
“the rules within which ordinary politics proceeds” and H.L.A. Hart (1961, 92-
107) calls simply the “rule of recognition.”19 The first section presents the
received view of constitutionalism, namely, that constitutional interpretation
should be based on the original intent of the Constitution’s drafters (Originalism),
the logic of a value-neutral system of Constitutional adjudication (Formalism) or
the values evident in the social and political context (Contextualism). The
drawback of the received view is that it is merely restates and extends three
theoretic approaches to legislative interpretation, which were clearly articulated
by Tony Honoré, to constitutional matters.20 However, the core idea behind
constitutionalism is not limited to how judges interpret constitutions. It also
extends to how constitutions operate within polities. In the second section, three
constitutional models emerge from the literature which, I claim, better capture the
phenomenon of constitutionalism than the received view.
Constitutionalism : The Received View
Theories of constitutionalism have long been associated with theories of
constitutional interpretation, which in turn draw upon extant theories of
legislative interpretation. Although questions of how to interpret the Constitution
are central to the judicial enterprise, I will argue that they do not exhaust the
broader meaning of constitutionalism. On the received view, constitutionalism
represents three specific approaches to constitutional interpretation: (i)
originalism, (ii) formalism and (iii) contextualism.
Originalism-The originalist approach to constitutional interpretation demands
that any construction reflects the original intent of the Constitutional founders
and, thus, is faithful to the original meaning imputed to the document. According
to one of the most well-known contemporary originalists, Robert Bork, a
constitution should be interpreted according to its original meaning, that is,
according to the intentions of its drafters.21 Cass Sunstein distinguishes soft and
hard versions of the originalist thesis: (i) the soft version recommends taking the

19 Buchanan, The Constitutional Way of Thinking, THE SUPREME COURT ECONOMIC REVIEW
(T.J. Zywicki, ed. 2003, p. 154; HLA Hart, THE CONCEPT OF LAW, 1961, pp. 92-107; Geoffrey
Brennan and Alan P. Hamlin, ‘Constitutional Political Economy: The Political Philosophy of Homo
Economicus’, 3 J. Pol. Phil. 280-303, 1995, p. 187 “Constitutionalism revolves around the simple idea
that political and social life can be broken down into constituent elements--the constitution and the
day-to-day actions/interactions of individuals”; Sheldon Wolin, ‘Norm and Form: The
Constitutionalizing of Democracy’, ATHENIAN POLITICAL THOUGHT AND THE
RECONSTRUCTION OF AMERICAN DEMOCRACY (J. P. Euben, J. R. Wallach and J. Ober, eds.),
1994 p. 35 “Constitutionalism . . . is the theory of how best to restrain the politics of democracy while
ensuring the predominance of the social groups and classes represented by the ‘best men.”
20 Tony Honoré, ABOUT LAW, ed. 1995.
21 Robert Bork, A TIME TO SPEAK: SELECTED WRITINGS AND ARGUMENTS, ed. 2008, p. 262
“The only way in which the Constitution can constrain judges is if the judges interpret the document’s
words according to the intentions of those who drafted, proposed, and ratified its provisions and
various amendments.”
2017] Can Pragmatists be Constitutionalists? 99
Dewey, Jefferson and the Experimental Constitution
general purposes and goals of the Constitutional Founders into consideration, as
relevant, when interpreting the document and (ii) the hard version, associated
with serving Supreme Court Justice Antonin Scalia, insists that “the particular
understandings of those authors and ratifiers are decisive and not merely
relevant.”22 However, most judges, even the most liberal and activist, will admit
that they are originalists in the soft sense. Bork is, without a doubt, an originalist
in the hard sense. What originalists in both molds share in common is that they
conceive tradition as a strong restriction on the scope and quality of judicial
decisions. Originalism has its roots in the modality of statutory interpretation
known as intentionalism, whereby the text of a statute (or, alternatively, a
constitution) is properly interpreted by reconstructing to “the intention of the
author of the text.”23 However, originalism suffers from at least two critical
defects: (i) its neglect of the current social-political context and (ii) the difficulty
of locating a unified will or intention among the multiplicity of authors who
originally composed the document.24
Formalism-According to legal formalism, constitutional law is a rational,
stable and predictable system. Operating within this closed logical system judges
deductively infer legal outcomes by recourse to “predetermined legal
[constitutional] rules without reference to social aims, policies, moral
standards.”25 By separating legal from extra-legal (and especially moral) factors
and insisting that only legal factors influence judicial decisions, the legal
formalist emphasizes the value-neutrality of constitutional adjudication.26
Abstract categories, such as civil rights and liberties, indicate coherent structures
of rules, concepts and principles that judges rely upon in deducing the right
judgment in particular legal cases. Though originalism is often identified as a
species of formalism, the two are distinguishable. Formalism is especially helpful
when textualism, i.e., interpreting a document by recourse to the ordinary
meaning of its words, proves unclear, equivocal or insufficient for arriving at a
determinate legal outcome.27 Whereas the originalist finds meaning in the
intentions of the Constitution’s drafters, the formalist looks for guidance in the
logical and conceptual resources left to him by a logical and self-executing
system of law. In ‘Logical Method and Law’, Dewey criticized formalist analysis
for improperly modelling all legal reasoning after the Aristotelian syllogism. He
declared “the need of another kind of logic which shall reduce the influence of

22 Cass Sunstein, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO, ed. 2001, p. 88; see
also James Bradley Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’,
3 Harv. L Rev., 1893, pp. 17-25; Antonin Scalia, ‘Originalism: The Lesser Evil’, 57 U. Cin. L. Rev.,
1995, pp. 849-865; Ibid., A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE
LAW, ed. 1997.
23 Supra n. 20, p. 94.
24 Ronald Dworkin, A MATTER OF PRINCIPLE, ed. 1985, pp. 43-57; Ibid., FREEDOM’S LAW: A
MORAL READING OF THE AMERICAN CONSTITUTION, ed. 1996, pp. 290-6.
25 HLA Hart, ‘Positivism and the Separation of Law and Morals’, 71 Harv. L. Rev., 1958, p. 601.
26 Ibid., p. 25 (Legal formalism and legal positivism overlap with respect to what Hart calls “the
separability thesis”, or that law and morality can be formally distinguished); see also Shane Ralston,
‘Legal Imperatives and Just Results’, 1 Affirmations 1-9, 2000, p. 3.
27 Supra n. 20, p. 90; see also DAVID M. BEATTY, THE ULTIMAT RULE OF LAW ed.2004; JOSEPH
H. BEALE, A TREATISE ON THE CONFLICT OF LAWS, ed. 1935.
100 Contemprory Law Review [Vol. 1

habit, and shall facilitate the use of good sense regarding matters of social
consequence.”28
Contextualism - Contextualism as a theory of constitutionalism (or more
accurately, constitutional interpretation) means that judges consult with the
dominant norms, values and goals of the wider society, as well as the pervasive
political and moral ideals, for guidance during the process of constitutional
exegesis. For instance, in the area of American obscenity law, a court following
the Miller test asks whether the work in question offends the contemporary
community standards in order to satisfy one prong of the three-prong test to
determine whether the work is worthy of First Amendment protection.29
Contextualism is often described as ‘antiformalist’ because it weakens rule of law
values (integrity, certainty and predictability) in a trade-off for greater flexibility
in the face of newfound circumstances.30 ‘Context’ for the constitutional
interpreter encompasses the entire social and political milieu. Ronald Dworkin’s
theory of constitutional interpretation is highly contextualist, concerned with how
present decisions both fit with standing precedent (or ‘law as integrity’ on
analogy with a ‘chain-novel’ that judges jointly author over time) and can
improve present legal practice (interpreting it ‘in its best possible light’ and with
reference to ‘political morality’).31 Although contextualism is not identical with
the idea of a living constitution, the two notions share a commitment to
interpreting the Constitution in a dynamic and forward-looking fashion. When
contextualism is reflexively applied to the notion of constitutionalism itself, we
soon discover that its significance cannot be limited to the activity of
constitutional interpretation. Why? Constitutions are sources of social cohesion
and subject to political contestation, and are not merely objects of judicial
interpretation. In short, the received view of constitutionalism fails to appreciate
the fact that constitutions are themselves embedded within a wider social and
political milieu.
Models of Constitutionalism
While the received view of constitutionalism presents three modalities that
lawyers, judges and constitutional scholars can use to interpret constitutions, it
says little about how constitutional norms emerge in a rich social and political
context. At the center of debates about constitutionalism are questions more
expansive than how to interpret constitutional language. For instance, how do

28 Supra n 1, pp.15, 70 (Dewey argues that the formalists were mistaken in claiming that general
principles can by themselves dictate legal judgments in particular legal cases); see also JEROME
FRANK, LAW AND THE MODERN MIND, ed.1963 pp. 30-35 (Similar to Dewey, the legal realist
Frank insists that the jurist reaches his conclusion first and then searches for the premises or reasons
to support his judgment later, as if they were an afterthought); Supra n. 1, p. 15, 72 (While not identical
to the experimental method, Dewey’s method of legal reasoning involves judgment, “exposition,” and
the recruitment of reasons: “Courts not only reach decisions; they expound them, and the exposition
must state justifying reasons”); see also Shane Ralston, ‘Reconstructing Pragmatist Jurisprudence’,3
Pragmatism Today p. 63 “This ‘logic of exposition’ is both forward and backward-looking, that is,
‘aiming to reshape old rules of law to make them applicable to new conditions’ and respecting the
principle of stare decisis, or treating like cases alike based on authoritative and controlling
precedent”.
29 Miller v. California 413 U.S. 15 (1973).
30 Robert M. Unger, THE CRITICAL LEGAL STUDIES MOVEMENT, ed. 1986, p. 109.
31 Supra n. 24, pp. 97-101; RONALD DWORKIN, LAW’S EMPIRE, ed. 1986, pp. 225-75.
2017] Can Pragmatists be Constitutionalists? 101
Dewey, Jefferson and the Experimental Constitution
political actors construe the function and design of constitutions? In what ways
do constitutions promote political values, such as fairness, legitimacy and justice?
Should constitutions codify a society’s traditions and mores or encourage open-
endedness and adaptability? What are the political implications of who authors
the constitution? Does the constitution make a regime more accountable to a
people and vice-versa? Or is there inevitable imbalance when a judiciary declares
the legislative priorities of democratic majorities unconstitutional what is
typically referred to as the “counter majoritarian difficulty”?32 In the following
pages, three constitutional models traditionalism, organicism and functionalism
are articulated, each attempting to remedy the narrowness of the received view.
Traditionalism-Traditionalism as a model of constitutional order comes in
many forms, from the relatively weak and innocuous idea that a stable
constitution should reflect the rule of law (Aristotle) to the stronger and more
contentious position that a constitution’s true meaning is identical with its
drafters’ original intent (Robert Bork).33 Starting with Aristotle’s idea of a
traditional constitution, the discussion then proceeds to Cass Sunstein’s critical
account of moderate constitutional traditionalism and its more radical cousin:
originalism.
For Aristotle (1958, 1269a20), a constitution codifies those normative ideals
and traditional values that support the rule of law in a specific society, for it is
widely accepted that “nomos [enacted law] has no power without the force of
ethos [custom].”34 According to Jill Frank, “Aristotle’s constitutionalism . . .
treats a constitution as a telos and, as such, as the way of life of a people in a
regime.”35 Aristotle’s traditional constitution aims to cultivate in a regime’s
citizens a habit of obedience (closely related to the virtues of phronesis and
moderation), to check sovereign exercises (and abuses) of political power and to
minimize opportunities to change the laws that would threaten regime stability.36

32 Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR
OF POLITICS ed.1962 (Bickel coined the phrase “counter majoritarian difficulty” to describe how
judicial review of popularly supported legislation can be deemed “undemocratic,” when the will of
nine justices nullifies the will of a democratic majority or their elected representatives; see also JOHN
HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW ed.1980;
BRUCE ACKERMAN, WE THE PEOPLE 1: FOUNDATIONS ed.1991; Supra n. 24, pp. 1-38; and
Supra n. 9, pp. 98-115.
33 Aristotle, POLITICS, 1269b14, 1312b4, 1319b33 [“Aristotle”] (1958) (Aristotle champions two
manifestations of the Athenian Constitution, the ancestral constitution and the Constitutions of the
Five Thousand: “The task confronting the lawgiver, and all who seek to set up a constitution . . . is not
only, or even mainly to establish it, but rather to ensure that it is preserved intact. (Any constitution
can be made to last for a day or two.)”; see also Jill Frank, ‘Aristotle on Constitutionalism and the
Rule of Law’, 8 THEORETICAL INQUIRIES IN LAW, ed. 2007, pp. 39-41. Supra n. 21, p. 206 (Bork
criticizes those constitutional scholars who interpret the First Amendment as a strong prohibition
against infringements on political speech, i.e. the libertarian view, rather than appeal to the Founders’
intent (i.e. originalism): “Any such [libertarian] position would have been strikingly at odds with the
American political tradition. Our forefathers were men accustomed to drawing a line, to us often
invisible, between freedom and licentiousness”).
34 Supra n. 33, p. 1269a20.
35 Supra n. 33, p. 49.
36 Ibid., p. 42 (According to Frank, Aristotle’s account of how citizens cultivate a virtuous habit of
obedience can be distinguished from the legal positivist’s fact-based account: “Unlike contemporary
legal positivists, who treat citizen compliance as a social fact, then, obedience to the law in Aristotle’s
view is not a fact but a practice, one that is guided by citizen judgment”); see also FRIEDRICH VON
102 Contemprory Law Review [Vol. 1

Traditionalism implies that there is only slight advantage to a written constitution.

Although the United States’ constitution is written and Britain’s is unwritten, the
norms that order Britain’s democracy can be found in the broader practices,
customs and historical documents (particularly the Magna Carta and Bill of
Rights) of the British society. In an Aristotelian spirit, Lawrence Lessig calls
some constitutions ‘preservative’ because their basic design protects time-
honoured institutions and customary practices against destabilizing forces.37 The
traditional model of constitutionalism does not necessarily obstruct social change
or bind future generations to a narrow reading of the document—as, for instance,
originalism can. However, it does tell us that constitutional norms emerge from
traditional rule of law values. Still, what is unclear is the extent to which the
tradition-bound character of constitutional norms would accommodate pragmatic
experimentation.
Though critical of traditionalism, Cass Sunstein offers a valuable typology
of reasons for privileging tradition in the design, interpretation and revision of
constitutions. According to the first rationale, traditions should be preserved in
constitutional form so that individual rights reflect ‘national and local practices’,
a statist or parochial alternative to universalist-cosmopolitan (especially Kantian)
justifications of rights.38 The second reason is that deference to tradition in
interpreting constitutions simplifies legal decision-making. It bypasses appeals to
complex reasons and “independent moral argument” in favour of “what has been
done before” simply because past practices are “the best guide to what should be
done” today and in the future.39 The third rationale for traditionalism, which
Sunstein associates with the political theorist Edmund Burke and contemporary
Yale Law School professor Anthony Kronman, states that following tradition is
constitutive of what it means to be human-or in Kronman’s words, “We must, if
we are to be humans at all, adopt towards the past the custodial attitude that
Burke recommends.”40 Thus, constitutional founders, jurists, legislators and
enfranchised citizens are no longer human once they stop caring about tradition-
however absurd that might sound. The fourth type of reason, and by far the most
controversial, is “that the Constitution should be taken to mean what it meant
when the relevant provisions were ratified” or originalism.41 However, the
meaning of the traditional constitution is not exhausted by the originalist
approach to judicial interpretation.

HAYEK, LAW, LEGISLATION AND LIBERTY, ed. 1979 p. 108 (Hayek’s argument that
constitutional legitimacy depends on a “background of traditions and beliefs” is closely tied to
Aristotle’s idea that a constitution codifies traditional rule of law values); ARTHUR F. BENTLEY,
THE PROCESS OF GOVERNMENT, 1967, p. 128 (Bentley understands constitutions as deriving
their authority from habits and custom: “For constitutions are but a special form of law. They are
specially guarded habitual activities of the society, enforcing themselves on all would-be variants”).
37 Lawrence Lessig, CODE AND OTHER LAWS OF CYBERSPACE, ed.1999 p.86; see also Supra n.
33, pp. 1294b14-15, 19 (In his critique of the Spartan constitution, Aristotle argues that if the document
was more balanced in its oligarchic and democratic elements, then it would be more effective at
preserving the Spartan state and the stability of its institutions).
38 Supra n. 22, p. 73.
39 Supra n. 22, p. 75.
40 Supra n. 22, p. 77.
41 Supra n. 22, p. 87.
2017] Can Pragmatists be Constitutionalists? 103
Dewey, Jefferson and the Experimental Constitution
Organicism-Panel four of the Jefferson Memorial records Thomas Jefferson
vision of constitutional change: “I am not an advocate for frequent changes in
laws and constitutions, but laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more enlightened,
as new discoveries are made, new truths discovered and manners and opinions
change, with the change of circumstances, institutions must advance also to keep
pace with the times.”42 Jefferson’s words capture the spirit of organic
constitutionalism, the idea that constitutions are living documents that transform
over time in sync with popular thought, imagination and opinion. I start with
Jefferson’s notion of a living constitution and end this discussion of organic
constitutionalism with Bruce Ackerman’s very Jeffersonian proposal to revise the
amendment process of the United States Constitution (Article-V). Although my
treatment of the organic constitution leaps from the eighteenth to the late
twentieth-century, there is a bounty of examples of organic constitutional
thinking between these two historical periods.43
In spite of Jefferson’s denial that he “advocate[d] for frequent changes in
laws and constitutions,” he argued for a living constitution and generational
sovereignty. Jefferson biographer Joseph Ellis dismisses the apparent dissonance
and stakes Jefferson’s reputation on the organic view: “Jefferson tended to view
it [the Constitution] as a merely convenient agreement about political institutions
that ought not to bind future generations or prevent the seminal source of all
political-power popular opinion-from dictating government policy.”44 Evidence
for this view can be found in a letter from Jefferson to James Madison addressing
“[t]he question Whether one generation of men has a right to bind another.”45 In
organic language, Jefferson states the first principle of his inquiry, which he took
“to be self-evident, [namely] ‘that the earth belongs in usufruct to the living’: that

42 Joseph Ellis, AMERICAN SPHINX: THE CHARACTER OF THOMAS JEFFERSON, ed.1998 p.98
(Based on a Letter of Benjamin Franklin to Samuel Kercheval, July 12, 1810, it is known that these
were not Jefferson’s exact words, but were excerpted from the letter which read as follows (emphasis
on the words that were removed): “I am certainly not an advocate for frequent and untried changes in
laws and constitutions. I think moderate imperfections had better be borne with; because, when once
known, we accommodate ourselves to them, and find practical means of correcting their ill effects.
But I know also, that laws and institutions must go hand in hand with the progress of the human mind.
As that becomes more developed, more enlightened, as new discoveries are made, new truths
disclosed, and manners and opinions change with the change of circumstances, institutions must
advance also, and keep pace with the times. We might as well require a man to wear still the same
coat which fitted him when a boy, as civilized society to remain ever under the regimen of their
barbarous ancestors.”
43 McCulloch v. Maryland 17 U.S. 316 (1819) (In the early nineteenth century, John Marshall, chief
justice of the U.S. Supreme Court, defended an organic view of constitutions in the majority opinion:
“[A] constitution [is] intended to endure for ages to come, and consequently, to be adapted to the
various crises of human affairs.”; see also John Patrick Diggins, ‘Republicanism and Progressivism’,
37 American Quarterly (1985) p. 579. (Woodrow Wilson, the twenty-eighth president of the United
States, a contemporary of Dewey’s and a pioneer of public administration, embraced the idea that
constitutions are organic: “Living political constitutions must be Darwinian in structure and practice.
Society is a living organism and must obey the laws of life, not of mechanics, it must develop”.
44 Ellis, supra n. 42, p. 192.
45 Thomas Jefferson, THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN
THOMAS JEFFERSON AND JAMES MADISON, 1776-1826, (J.M. Smith, ed.), 1995, p. 632
(Jefferson’s letter to Madison is dated September 6, 1789, and was written while Jefferson was a
diplomat in Paris).
104 Contemprory Law Review [Vol. 1

the dead have neither powers nor rights over it.” The term ‘usufruct’ refers to a
concept in Roman and civil law that some may derive advantages from the use of
something owned by another. In Jefferson’s usage, the earth belongs to God but
its bounty extends to each living generation (coming into existence about ever
nineteen years),46 not older generations or their long-dead ancestors. Jefferson’s
initial concern was that one generation would unjustly burden future generations
with monetary debt, both public and private. From the radical economic idea that
each new generation should be freed from the financial obligations of prior
generations, he inferred that “no society can make a perpetual constitution or
even a perpetual law” for “[t]he earth belongs always to the living generation.”47
In other words, each generation should be empowered to peacefully revise the
constitution, its laws and institutions, thereby ensuring political independence
from the prior generation. Thus, every nineteen years, a bloodless constitutional
revolution guarantees generational sovereignty, for “one generation is to another
as one independent nation to another,” unbound by the other’s constitutional
norms and obligations.48 Of course, Jefferson’s model is not without its problems,
most notably how to maintain intra-generational rigidity (e.g., stable protections
of minorities against majorities, preservation of fundamental rights even when
the opposition is near-unanimous) without entailing inter-generational rigidity
given the fact that generations overlap.49
Consistent with the organic model, Bruce Ackerman proposes a “two-track”
theory of dynamic constitutional change or what he simply calls the “dualist
Constitution.”50 According to his exegesis of U.S. constitutional history, crises
have occurred infrequently during the Founding, the Reconstruction period
following the Civil War (when the Thirteenth, Fourteenth and Fifteenth
Amendments were passed), and the Great Depression. The people deliberated in
mass and with few or no constraints on their ability, using the metaphor of game-
playing, to create or change the rules of the game.51 Indeed, Ackerman’s dualist
theory distinguishes two varieties of law making, “constitutional” and “normal,”
that is, creating or amending the rules of the game (i.e. constitutional law making)
and playing the game of electoral-legislative politics under the existing regime of
rules (i.e. normal law making).52 During periods of instability, prior constraints
on normal politics, including on the scope of legitimate political interaction and

46 Ibid, p. 633 (Jefferson determines the length of a generation based on actuarial data compiled by the
Comte de Buffon, which show that a new generation arrives about every eighteen years and eight
months).
47 Ibid, p. 634.
48 Id., p. 635.
49 Axel P. Gosseries, Constitutions and Future Generations, 17 The Good Society p. 33 (2009) (Gosseries
explains the problem of intra-generational rigidity: “In a real world however, generations do overlap.
[ . . . ] The overlap thus makes it practically unavoidable that those committed to intragenerational
rigidity should accept intergenerational rigidity as a side-effect”; cf. Wolin, supra note 19 p. 55 (Wolin
expresses the more pessimistic view that any institutionalization of the democratic ideal in a formal
constitution will fix its content and ossify its meaning: “A political constitution is not the fulfilment of
democracy but its transfiguration into a ‘regime’ and hence a stultified and partial reification”).
50 Supra n. 32, p. 296.
51 Supra n. 32, p. 288; see also Supra n. 19, p. 147 (Buchanan likewise compares constitutional rules to
the rules of a game).
52 Supra n. 32, pp. 300-302. See also Galston and Galston, ‘Reason, Consent, and the U.S. Constitution:
Bruce Ackerman’s ‘We the People’, 104 Ethics (1994) p. 447.
2017] Can Pragmatists be Constitutionalists? 105
Dewey, Jefferson and the Experimental Constitution
mobilization, are shelved for the sake of imagining a new or reconstructed
constitutional order.53 In a Jeffersonian spirit, Ackerman argues that these
momentous and infrequent crises spawn “new beginnings,” or organic
opportunities for constitutional transformation, that are so crucial for “enhanced
legitimacy” that they deserve institutional support.54 In the second book of his
three-book series, We the People, Ackerman proposes a supportive mechanism
in the form of a radical new procedure for amending the U.S. Constitution:
“Rather than aiming for an Article V Amendment [which requires the Congress
or a national convention to propose an amendment at the request of two-thirds of
the state legislatures, and then for the amendment to be ratified by either three-
quarters of the state legislatures or state ratifying conventions] the vehicle for
constitutional change should be a special statute that I [Ackerman] will call the
Popular Sovereignty Initiative. Proposed by (a second-term) President, this
Initiative should be submitted to Congress for two-thirds approval, and should
then be submitted to the voters at the next two Presidential elections. If it passes
these tests, it should be accorded constitutional status by the Supreme Court.”55
Although the Initiative would make the amendment process excruciatingly
long, Ackerman hopes that it would have the effect of leveraging civic
engagement and public dialogue about constitutional matters.
Functionalism-On this third account, a constitution is a mechanism, an
ordering device that fulfils a specific set of functions. The positions of two
scholars, Stefan Voigt and James Buchanan, epitomize this view.56 According to
Voigt, a constitution is “a system of rules specifying the allocation of resources
used for the provision of public goods within the collectivity called the state.”57
Since it is nearly impossible to supply certain essential and indivisible goods (e.g.,
defense) through a free market mechanism, the government must employ non-
market mechanisms (i.e., contract bidding and taxation) to artificially determine
supply, demand and price. Voigt’s intention is to limit the role of the state to
providing only these special (public) goods and leave all other activities
untouched by government intervention. With such a constitutional mechanism in
place, government would not have the authority to redistribute private goods as
it sees fits. As a free-market libertarian, it is unsurprising that Voigt would argue
that a constitution functions as a mechanism to ensure limited government.

53 There are several critiques of Ackerman’s dualistic reading of constitutional history. For instance, John
Dryzek (2004:50) argues that the suspension of constitutional constraints during these momentous and
infrequent crises is evidence of a weakness in constitutional orders: “This [temporary suspension of
constitutional constraints] points to a limit to constitutions as sources of order: they cannot cope with
great crises.” Dryzek, ‘Constitutionalism and Its Alternatives’, DELIBERATION AND DECISION:
ECONOMICS, CONSTITUTIONAL THEORY AND DELIBERATIVE DEMOCRACY, (A. van
Aaken, et al eds) 2004 p. 50. Also, Michael Sullivan understands Ackerman’s conception of the People
as a democratic subjectivity that would be too constrained by normal politics to attempt major breaks
during periods of constitutional politics: “[I]ronically, the community subject which sets us free may
be largely the product of the normal politics it was meant to regulate.” Sullivan, LEGAL
PRAGMATISM: COMMUNITY, RIGHTS AND DEMOCRACY, ed. 2007, p. 108.
54 Ackerman, WE THE PEOPLE 2: TRANSFORMATIONS, ed.1998 p.302.
55 Ibid., at 415; see also Peter S. Onuf, ‘Who are ‘We the People’? Bruce Ackerman, Thomas Jefferson,
and the Problem of revolutionary Reform’, 10 Constitutional Political Economy 397-404, pp.401-2.
56 Stefan Voigt, ‘Pure Eclecticism—The Tool Kit of the Constitutional Economist’, 7 Constitutional
Political Economy 177-196 (1996); Supra n. 19.
57 Supra n. 56, p. 182.
106 Contemprory Law Review [Vol. 1

Similar to Voigt, Buchanan’s libertarian bias also surfaces in identifying

those limited functions that government can fulfil given constitutionally imposed
limitations. He believes that government should do no more than encourage
citizens to embrace a single constitutional norm—what he refers to as the
“constitutional way of thinking”: “This way of thinking is, at base, procedural
rather than substantive. At the final cut, what emerges from agreement becomes
normatively superior because it emerges and nothing more. Agreement does not
emerge because that upon which agreement is reached is exogenously
superior.”58 In other words, citizens should think of constitutional agreement as
the contractually binding outcome of free deliberations, not in virtue of some
independent standard (e.g. a moral principle or scientific finding), but solely with
respect to the fact that all parties consented.59 Of course, all future generations
will be bound by the consent of the original Founders, unless the Constitution is
amended in a procedure which requires a super-majority voting rule. In this way,
Buchanan’s functionalist approach to constitutionalism favors the status quo,
stability and the protection of minorities within a democratic society, even in the
face of a tyrannical majority.60
Dewey on Jefferson and Constitutional Norms
Given John Dewey’s extensive writings on democracy, the common
association of democracy with experimentalism (think of expressions such as
‘Brandeis’, ‘laboratories of democracy’ and ‘democracy as a grand experiment’)
and the similar correlation of constitutionalism with stability, Dewey’s
credentials as a democrat are considerably more secure than his credentials as a
constitutionalist. Nevertheless, statements such as the following might lead us to
confidently ally Dewey’s views with organic constitutionalism: “By its very
nature, a state is ever something to be scrutinized, investigated, [and] searched
for. Almost as soon as its form is stabilized, it needs to be re-made.”61 In this
section, Dewey’s essay on Jefferson as well as his many other writings on
constitutional norms receive close scrutiny, in a search for evidence of
compatibility between Deweyan experimental pragmatism and one or more of the
three models of constitutionalism.

58 Supra n. 19, p. 146.

59 T.M. Scanlon, ‘Contractualism and Utilitarianism’, UTILITARIANISM AND BEYOND, (A. Sen
and B. Williams, eds.) 1982 p. 110, (Buchanan’s theory resembles T.M. Scanlon’s contractarianism
in moral philosophy: “An act is wrong if its performance under circumstances would be disallowed by
any system of rules for the general regulation of behaviour which no one could reasonably reject as a
basis of informed, unforced general agreement”); Buchanan, supra note 19, at 143 (Buchanan also
mentions the “Wicksellian norm for taxation,” named after Knut Wicksell, who supported changes in
voting rules from simple to qualified or super majorities, since the closer the decision rule gets to
unanimity the more protected are the minority’s interests).
60 Jules Coleman, ‘Constitutional Contractarianism’, 1 Constitutional Political Economy p.146ff (1990)
(Referring to Buchanan, Jules Coleman states that this disregard for “the [ex ante] fair distribution of
holdings” constitutes “status quoism of the worst kind”); see also Anne van Aaken, ‘Deliberative
Institutional Economics, or Does Homo Oeconomicus Argue? A Proposal for Combining New
Institutional Economics with Discourse Theory’, DELIBERTAION AND DECISION:
ECONOMICS, CONSTITUTIONAL THEORY AND DELIBERATIVE DEMOCRACY, (A. van
Aaken, C. List and C. Luetge, eds.) 2004, p. 3-32, 8ff.
61 Supra n. 1, pp. 2, 255.
2017] Can Pragmatists be Constitutionalists? 107
Dewey, Jefferson and the Experimental Constitution
Dewey Presents Jefferson
Though scholars have spilt more ink connecting Deweyan pragmatism with
the thoughts and writings of another American Founder, Benjamin Franklin,
Dewey himself showed comparably greater interest in the life and ideas of
Thomas Jefferson.62 While he is probably best known for drafting the Declaration
of Independence, Jefferson also exercised immense influence over the creation of
the United States’ Constitution through his extended correspondence with James
Madison during the 1787 Constitutional Convention (since Jefferson was absent,
serving as a diplomat in Paris).
In a thirty-page introduction to an edited collection of Jefferson’s writings,
titled “Presenting Jefferson,” Dewey portrayed Jefferson as “a child of the
pioneer frontier and of the enlightenment of the 18th century” and a first-rate
political philosopher.63 About half-way through the essay, Dewey grapples with
“the question of French influence” upon the Founding statesman and one-time
French diplomat, insisting that “[e]very one of Jefferson’s characteristic political
ideas (with one possible exception) was definitely formulated by him before he
went to France.”64 What was the single “exception”? “[It] is found in Jefferson’s
emphasis upon the moral inability of one generation to bind a succeeding
generation by imposing a debt or unalterable constitution upon it. His assertion
that the “earth belongs in usufruct to the living; that the dead have neither powers
nor rights over it” was general in scope. But his argument (in a letter written
from Paris [to James Madison]) closes with a statement of the importance of the
matter “in every country and most especially in France.” For, as he saw, if the
new government could not abolish the laws regulating descent of land, recover
lands previously given to the Church, abolish feudal and ecclesiastical special
privileges, and all perpetual monopolies, reformation of government would be
hamstrung before it got started.”65
Rather than applaud the revolutionary and organic character of Jefferson’s
theory of generational sovereignty, Dewey reads Jefferson’s letter to Madison,
especially the final passage, as limiting its intended application (or ‘scope’) to the
peculiar situation of pre-revolutionary France (a situation of great economic
inequality that left to stand would obstruct future political progress and reform).
In Jefferson’s letters discussing the drafting of the Declaration of Independence,
Dewey observes that “Jefferson was . . . profoundly convinced of the novelty of
the action [to declare American independence] as a practical ‘experiment’-
[a]favorite word of his in connection with the institution of self-government.”66
Just as Jefferson saw the Declaration as a test of the colonists’ will to revolt and
separate from Britain, he also saw the Constitution, as the outcome of the
Convention in Philadelphia almost eleven years later, as a grand experiment in

62 James Campbell, ‘The Pragmatism of Benjamin Franklin’, 31 Transactions of the Charles S. Peirce
Society 745-92, 747 (1995); see also WALTER ISAACSON, BENJAMIN FRANKLIN: AN
AMERICAN PORTRAIT, 2004 p.491; Shane Ralston, ‘Ole Ben Franklin, the Pragmatist? On the
Philosophical Credentials of an American Founder’, 7 The Pluralist, 2012, pp. 6-26.
63 Supra n. 1, pp. 14, 201-24.
64 Supra n. 1, p. 211.
65 Supra n. 1.
66 Supra n. 1, p. 212.
108 Contemprory Law Review [Vol. 1

creating a new social and political order. Does Dewey detect a countervailing
tendency in Jefferson’s thought? Perhaps to our surprise-though not if we
appreciate the sincerity of his words on the Jefferson Memorial “I am not an
advocate for frequent changes in laws and constitutions”-Jefferson was, to some
extent, a traditionalist. After studying his letters in detail, Dewey concludes that
“[h]e [Jefferson] knew too much history not to know that governments [and their
constitutions] have to be accommodated to the manners and habits of the people
who compose a given state” in other words, to their traditions.67 For Jefferson,
traditions were instruments for transmitting values and maintaining
intergenerational continuity.
Dewey on Constitutions and Constitutional Norms
Summarizing and interpreting all those views Dewey expressed about
constitutions would exceed the scope of this article. So a selection of materials
has been made (below) that reveals his pattern of thinking on constitutional
norms:68
(i) Dewey approvingly quotes Justice Oliver Wendell Holmes, Jr. (The
Constitution is an experiment, as all life is an experiment.), and then
provides his own gloss on Holmes’ experimentalism: “According to the
framework of our social life, the community, the ‘people,’ is, through
legislative action, the seat of social experiment stations.”69
(ii) Dewey criticizes those who treated the Constitution as a sacred end, not
a tool for realizing the social and political good: “The constitution of the
state is treated not as a means and instrument to the well-being of the
community of free self-governing individuals but as something having
value and sanctity in and of itself.”70
(iii) Similar to Plato (1980) in The Laws (Bk. IV, Sec. 7), Dewey locates the
key to translating the Constitution into “a flexible political program” in
its Preamble: “The recovery of the agencies of legislation, administration
and judicial decision to serve social ends, which the Preamble to the
Constitution declares to be the object of government, translates itself
almost automatically into terms of a flexible political program. No
commitment to dogma or fixed doctrine is necessary. The program can
be defined in terms of direct social needs and can develop as these
change.”71
(iv) In the book Experience and Nature, Dewey discusses how the relations
bound up in what is “real” can differ from the “literal” perception of a
thing, using “the Constitution of the United States” as the example:
“Obviously the real constitution is certain basic relationships among the
activities of the citizens of the country; it is a property or phase of these

67 Ibid. p. 213.
68 James Scott Johnston, INQUIRY AND EDUCATION: JOHN DEWEY AND THE QUEST FOR
DEMOCRACY, ed. 2006 pp. 38-40, (Johnston employs this technique of listing a series of Dewey
quotes for the sake of locating a pattern of consistent reasoning and correcting “a tendency in the
scholarship of Dewey to invoke passages out of context.”
69 Supra n. 1, pp. 3, 179.
70 Supra n. 1, p. 5, 193.
71 PLATO, THE LAWS, bk. IV, sec. 7 (T.L. Pangle, trans., Basic Books) 1980; Supra n. 1, pp. 6, 176-
7.
2017] Can Pragmatists be Constitutionalists? 109
Dewey, Jefferson and the Experimental Constitution
processes, so connected with them as to influence their rate and direction
of change. But by literalists it is often conceived of as something external
to them; in itself fixed, a rigid framework to which all changes must
accommodate themselves.”72
(v) In The Public and Its Problems, Dewey notes that since (during what is
often referred to as the Lochner era) the Supreme Court had struck down
as unconstitutional state and federal laws to regulate child labor, the
Child Labor amendment had been stymied by a difficult amendment
procedure and a lack of political will: “Yet so far, the proposed
amendment to the Constitution has not begun to secure the needed
support. Political parties may rule, but they do not govern. The public is
so confused and eclipsed that it cannot even use the organs through
which it is supposed to mediate political action and polity.”73
(vi) In the Ethics, Dewey (with Hayden Tufts) argues that the American state
constitutions and the federal Constitution failed to adapt to new
circumstances: “[T]here are problems, growing out of the fact that for
the most part American [state and federal] constitutions were written
and adopted under conditions radically unlike those of the present, which
have a direct ethical import. [ . . .] [O]ur constitutions are full of
evidences of distrust of popular cooperative action. They [the founders]
did not and could not foresee the direction of industrial development, the
increased complexity of social life, nor the expansion of national
territory.”74
(vii) In the revised Ethics, Dewey complains that “[i]n the United States, the
tendency to rigidity of interpretation and corresponding fixity of
governmental institutions was favored by a written constitution and its
provisions.”75
(viii) On the relationship between democracy and constitutionalism, Dewey
laments in Freedom and Culture those social conditions under which
certain prevalent “ideas . . . lead us to believe that democratic conditions
automatically maintain themselves, or that they can be identified with
fulfilment of prescriptions laid down in a constitution.”76
One might infer from these excerpts that Dewey’s estimation of the value of
constitutions was fairly low. However, a more nuanced reading is that he was
critical of constitutional thinking that involves interpretive “rigidity,” promotes
institutional “fixity” in the face of changing circumstances and treats the
constitution as possessing intrinsic “value” or “sanctity.”77 If this reading is

72 Ibid., p. 1, 65.
73 Ibid., p. 2, 310-1.
74 Supra n. 1, pp.5, 428.
75 Supra n. 1, pp. 7, 354.
76 Ibid., pp. 13, 87.
77 Ibid., p.14, 216 (Dewey describes Jefferson’s view in a way similar to how he characterizes his own
view: “In any case, he was no friend of what he called ‘sanctimonious reverence’ for the constitution”;
see also Roger T. Ames, Tang Junyi and the Very ‘Idea’ of Confucian Democracy,” DEMOCRACY
AS CULTURE: DEWEYAN PRAGMATISM IN A GLOBALIZING WORLD, (S. Tan and J.
Whalen-Bridge, eds.) 2008 pp. 180, Ames provides an excellent illustration of the circumstances under
which Dewey’s experimentalism would conflict with a commitment to constitutionalism: “A
110 Contemprory Law Review [Vol. 1

correct, then it can be confidently concluded that Dewey would have rejected the
species of traditionalism known as originalism, for it renders an inflexible
interpretation of the constitution’s meaning.
Was Dewey therefore a perpetual critic of tradition and traditional
constitutions? Not entirely. At some places, he positively values “[t]radition and
custom,” insisting that they “are part of the habits that have become one with our
very being.”78 At other places, he acknowledges that customary and traditional
ways of life obstruct growth: “Tradition may result in habits that obstruct
observation of what is actually going on; a mirage may be created in which
republican institutions [e.g. constitutions] are seen as if they were in full vigor
after they have gone into decline.”79 From a pragmatist-experimentalist
perspective, traditional constitutions are flawed insofar as they incorporate rigid
or fixed rules that block organic development. In the Ethics, “standards and rules
of conduct [rooted] in ancestral habit” are distinguished from “appeals to
conscience, reason, or . . . thought,” but ultimately, the “difference [is only] in
principle,” Dewey notes, for in practice both operate as valuable social norms.80
What he laments most of all is the narrow and ingrained channels in which
thinking and living flow when traditions restrict social progress. Dewey
recommends that “the way to go forward is to get rid of those elements of our
heritage from the past which hamper, load down and distort clear and coherent
intellectual articulation of the attitudes, interests and movements which are
distinctively modern.”81
However, this critique of traditionalism does not make Dewey an enemy
either of tradition or tradition-based constitutions. To the extent that tradition is a
source of continuity between past, present and future generations, “[a]s a
process, tradition has a wider meaning, being used to cover the entire operation
of transmission by which a society maintains the continuity of its intellectual and
moral life. As a fact, tradition has of course always been operative.”82 Similar to
Jefferson, Dewey saw tradition—whether operating in constitutions or in the
wider social mores—as an indispensable means for transmitting values across
generations. Tradition in the form of long-standing precedent established through
the principle of stare decisis, or the treatment of like cases alike, also has value
that can trump the need for social experiment and radical change. As mentioned,
Dewey in “Logical Method and Law” criticized legal formalism rigidly adhering
to syllogistic logic. However, he also conceded that a legal system requires the
“stability and regularity” that formalists prize: “Another moving force [besides
logic in the law] is the undoubted need for the maximum possible of stability and

constitution in a revolutionary America several hundred years ago, for example, might quite
reasonably guarantee the right of individuals to bear arms. But this anachronistic right might be a
source of coercion in our very different contemporary setting. By perpetuating an ostensibly personal
freedom without taking into account changing circumstances, such a right might only serve to
empower shameless individuals to dramatically compromise the flourishing community that Dewey
takes as a necessary condition for democracy.”
78 Supra n. 1, pp. 9, 11.
79 Supra n. 1, pp. 13, 102.
80 Ibid, pp.7, 162.
81 Ibid, pp. 14, 315.
82 Supra n. 1, pp. 7, 356.
2017] Can Pragmatists be Constitutionalists? 111
Dewey, Jefferson and the Experimental Constitution
regularity of expectation in determining courses of conduct. Men need to know
the legal consequences which society through the courts will attach to their
specific transactions, the liabilities they are assuming, the fruits they may count
upon in entering upon a given course of action.”83 In other words, constitutional
order demands predictability in the application of legal rules, so that citizens act
and coordinate their actions based on reasonable expectations about how the law
will affect their individual and collective lives.
Still unaddressed is a major difference between Dewey and many
constitutional theorists, including Ackerman and Buchanan (not Sunstein). While
these constitutionalists insist that constitutional norms are produced by meta-level
constitutional rule-making under minimal constraints, Dewey believes that
constitutional norms emerge from within broader and more inclusive set of social
and political practices. For Dewey, constitutional politics are continuous with,
not privileged over, day-to-day politics. In addition, constitutional norms are the
products of experimental inquiry. Though they are comparatively more stable
than the norms codified in ordinary legislation, constitutional norms are still
contested, fallible and thus potentially revisable through an amendment
procedure. Indeed, they are similar to the highly, though by no means absolutely,
stable forms that guide inquiry-what Dewey creatively describes as the
“operationally a priori.”84 Contrary to the views of most constitutional theorists,
the testing of proposed constitutional norms does not occur at a higher theoretical
plane-what Ackerman, Buchanan and others eulogistically call the ‘constitutional
level.’ Instead, on an experimental pragmatist’s account, norms are tested and
determined through inquiry.85 According to Larry Hickman, Dewey’s
“experimentalism involves active, systematic, and controlled attempts to
determine . . . which [norms] . . . are best positioned to achieve the desired
balance between goals of freedom and equality.”86 For Dewey, determining the
content of constitutional norms is no different than the creation and valuation of
other norms; it occurs through observation, analysis, manipulation and reflection
upon the conditions and consequences of problematic situations, whether in
ordinary or constitutional politics or in what pragmatists simply refer to as
“experience.”87

83 Ibid., pp. 15, 73.

84 Supra n. 1, pp. 12, 21.
85 Ibid., pp. 285-309 (For Dewey, the acceptability of norms can be determined with respect to three
kinds of criteria: (i) naturalistic, (ii) instrumental and (iii) conventional. First, a determination of their
worth is based on the satisfaction of a naturalistic criterion of success, that is, whether they cultivate
habits that make humans better adapted to their natural and social environments. They can also be
assessed instrumentally, that is, in terms of their efficacy or success in achieving favored ends. Since
experimental deliberation is abductive (or concerned with hypothesis formation and testing), it is
instrumental in the sense of being aimed at experimental confirmation or disconfirmation (relative to
tentative, not fixed, standards of acceptability), but not in the sense of satisfying an absolute standard
or realizing some final end. Third and last, value judgments can be evaluated conventionally, that is,
by recourse to widely approved or potentially approvable community standards).
86 Larry Hickman, ‘The Genesis of Democratic Norms: Some Insights from Classical Pragmatism’,
DEMOCRCAY AS CULTURE: DEWEYAN PRAGMATISM IN A GLOBALIZING WORLD, (S.
Tan and J. Whalen-Bridge, eds.) 2008 p. 25.
87 Supra n. 1, pp. 1, 18 (In Experience and Nature, Dewey defines ‘experience’ as including “what men
do and suffer, what they strive for, love, believe and endure, and also how men act and are acted upon,
112 Contemprory Law Review [Vol. 1

Conclusion
Dewey’s experimentalism is compatible with constitutionalism, however,
with a single qualification: Under some circumstances, social progress can
require that citizens experimentally test constitutional norms and revise
constitutional rules accordingly. For this purpose, almost all constitutions contain
amendment procedures-or what HLA Hart terms the ‘rules of change.’88
However, many of those amendment procedures, such as Article-V of the U.S.
Constitution, prove so difficult to carry out that the possibility of constitutional
revision becomes moot (as Dewey discovered in the case of the proposed Child
Labor amendment). On experimental grounds, a more dynamic amendment
procedure could be initiated, whether in the form of Ackerman’s Popular
Sovereignty Initiative proposed or a plan such as Jefferson’s to convene a new
constitutional convention every nineteen years. However, Dewey’s narrow
interpretation of the radical idea of generational sovereignty reveals his deep-
seated reservations about the destabilizing effects of a thoroughly organic
constitution. Agreeing with Aristotle (and to some extent, Jefferson), Dewey
believed that constitutions should be rooted in tradition, codifying a people’s
manners, habits, customs and ways of life. Furthermore, Dewey would generally
agree with Voigt and Buchanan that constitutions fulfil certain functions; though
they would likely disagree on what those exact functions should be. Thus, all
three constitutional models (traditionalism, organicism and functionalism) are to
some extent compatible with Dewey’s experimentalism, so long as they permit
average citizens and government officials to test the fitness of constitutional
norms for resolving pressing social and political problems (e.g., by enabling
states and localities to perform as so-called “laboratories of democracy” and
activist judges to, under dire circumstances, intervene and catalyze social change,
for instance, in the Supreme Court cases of Brown v. Board of Education of
Topeka I (achieving racial integration in public schools) and Gideon v.
Wainwright (giving criminal defendants the right to a public defender).89 Hence,
Deweyan pragmatism is compatible with a stable constitutional order insofar as
the constitution contains an instrument for permitting experimental change (i.e. a
dynamic amendment procedure) and its constituent rules are tentatively stable,
yet fallible and revisable in light of ongoing experience and inquiry or what James
Buchanan aptly calls ‘relatively absolute absolutes.’90

****

the ways in which they do and suffer, desire and enjoy, see, believe, imagine-in short, processes of
experiencing”).
88 Supra n. 19, pp. 93-6.
89 Brown v. Board of Education of Topeka I, 347 US 483 (1954); Gideon v. Wainwright, 372 US 335
(1963).
90 James Buchanan, ESAYS ON POLITICAL ECONOMY, ed. 1989, p. 45.
 THE RISING FAILURE OF STATE SOVEREIGNTY IN
CONTEMPORARY INTERNATIONAL LAW
Shreya Mishra
ABSTRACT
Sovereignty is one of the four attributes that defines a ‘State’.
The traditional concept of State sovereignty essentially implies
non-tolerance for interference by another State in a State’s
internal affairs. Since the inception of the concept through the
Treaty of Westphalia in 1648, the notion of sovereignty has
assumed a different perspective which, apart from domestic
affairs, also includes the realms of international and internal
politics. The evolution of State Sovereignty has been rather
dynamic, with the world witnessing two world wars which were
succeeded by a ‘Cold War’. New boundaries were drawn and
the world underwent a transition, and is still undergoing
gradual transformation by forces and factors that determine the
existence or non-existence of a State. The article is an analytical
study of the emergence of ‘Fragile States’ and ‘Failed States’
and their impact on the sovereignty of the States. It takes into
account the present geopolitical situation in Iraq, Ukraine,
Somalia, Nigeria and similar States in order to gauge whether
the four characteristic features elucidated in the Montevideo
Convention of 1933 are sufficient to identify a State. The article
also accounts for a jurisprudential analysis of the notion of
State sovereignty. It also addresses the emerging issues
pertaining to State failure on the socio-cultural dimensions and
the cascading consequences such as rise in refugee populations,
religious persecution, atrocities committed on women and
children, risk of trafficking etc. Through the analysis, it attempts
to provide suitable suggestions for resolving the international
issues involved.
__________________________________________________________________________________________________________

Keywords: State, Sovereignty, Fragile, Failed, Jurisprudence.

Introduction
In a series of peace treaties signed in 1648, it ushered the modern
international system where States and not kings and dynasties became the arbiters
of peace and war. Since then, through two World Wars, innumerable small ones
and the age of nuclear weapons, this system has survived.1 But it is now
undergoing a change because in reality, it was an outcome of a special set of
circumstances which were different from those prevailing today. They have given
rise to a popular post-Cold War concept of failed States which are viewed through

 Assistant Professor of Law, Maharashtra National Law University, Nagpur,

e-mail: [email protected].
1 S. Singh, Henry Kissinger’s Uncertain World, Mint, Kolkata, January 16, 2014, p. 5.
114 Contemprory Law Review [Vol. 1

the same prism as that of failed or failing States.2 As the Cold War concluded in
the early 1990s, analysts became aware of an emerging international security
environment, in which weak and fragile States became conduits for international
crimes, nuclear proliferation pathways, and hot spots for civil conflict and
humanitarian emergencies.3 These States have emerged in the backdrop of the
end of colonization, opening up of new economies, and the period where national
boundaries were being carved in many places without considering the sentiments
of the people inhabiting them. These States are generally in the state of transition
from a ‘normal’ State to a ‘fragile’ or ‘failing’ State, or even worse, a ‘failed’
State. This transition was described by the former Secretary-General of the
United Nations, Boutros Boutros Ghali, in the following words:
A feature of such conflicts is the collapse of state institutions, especially the
police and judiciary, with resulting paralysis of governance, a breakdown of law
and order, and general banditry and chaos. Not only are the functions of
government suspended, but its assets are destroyed or looted and experienced
officials are killed or flee the country. This is rarely the case in inter-state wars.
It means that international intervention must extend beyond military and
humanitarian tasks and must include the promotion of international reconciliation
and the re-establishment of effective government.4
There are many features of ‘failed’ States, but they are not exhaustive. Daniel
Thürer, though, describes the phenomenon of the failure of a State as the one
involving the implosion of structures of power and authority, a collapse of law
and order and the absence of institutions capable of representing the state.5 In
other words, a failed state though retaining legal capacity has, for all practical
purposes, lost the ability to exercise it.6 The concept of a ‘failed State’ generally
describes nations that cannot perform their domestic functions or meet their
obligations under international law because of the collapse of central government
authority, which eventually creates a crisis for the sovereignty of the nation.7
Failed States are very different from the States in the Westphalian system, which
represent the four characteristics of a State according to the Montevideo
Convention (1933): territory, population, government, and sovereignty. In failed
States, non-State actors become the ‘governing’ agents; the government cannot
provide public goods; and the economy has usually collapsed, producing famine,

2 N. Caspersen, ‘Unrecognized States: The Struggle for Sovereignty in the Modern International
System’, 2012, p. 7.
3 M. Chossudovsky, ‘Wiping Countries off the Map: Who’s Failing the Failed States’, Global Research,
available at http://www.globalresearch.ca/destroying-countries-transforming-syria-into-a-failed-
State/5317160, (visited on January 14, 2017).
4 N. Akpinarli, ‘The Fragility of the ‘Failed State’ paradigm: A Different International Law Perception
of the Absence of Effective Government’, 2010, p. 11, available at https://books.google.co.in/books,
(visited on January 29, 2017).
5 ‘International Law and the problem of Failed States’, The International Relations and Security
Network, ISN ETH Zurich, available at http://www.isn.ethz.ch/Digital-Library/Articles/Special-
Feature/Detail/?lng=en&id=136381&tabid=1451587455&contextid774=136381&contextid775=136
377, (visited on March 13, 2015).
6 Ibid.
7 J. Yoo, ‘Fixing Failed States’, 99 California Law Review 95, (2011) p.100 available at
http://scholarship.law.berkeley.edu/californialawreview/vol99/iss1/3, (visited on January 14, 2017).
2017] The Rising failure of State Sovereignty in Contemporary International Law 115

refugee flows, and human rights disasters.8 Physical infrastructure decays and
living standards decline rapidly. Failed States often are not considered legitimate
and are the result of prolonged ethnic, regional or religious rivalries. There is no
specific definition of a ‘failed State’, even though the ‘Index of Failed States’ of
Foreign Policy magazine listed as many as sixty-five States in 2015.9 The existing
situation in the world demands what Alan James said-sovereignty, like
pregnancy, is either present or absent, never only partially realized.10
Globalization is a phenomenon which has altered the concept of sovereignty
in the present age. The fact that no nation in the world is self-sufficient propels
nations to globalise. This has had a huge impact on trade, finance, natural
resources and environment of nations. Out of the political vacuum that was
begotten in many countries in the aftermath of the wars fought in Asia and Africa,
were formed the factions that fought and are still fighting against each other,
creating conditions of chaos, barbarism and anarchy. Their acts and omissions
have not only affected the immediate landscape, but have also had spillover
effects in the neighbouring countries. Thus, instead of nations, regions are getting
affected. The phenomenon of globalization has rendered the nations very
vulnerable to attacks from militant outfits as well as their offshoots. In the
absence of proper leadership, nations are headed towards fragmentation and
failure. The origin of ‘failed States’ cannot be viewed in isolation with the factors
that have indirectly led to the proliferation of violent non-state actors (VNSAs)
such as al-Qaeda, ISIS, Boko Haram,11 etc. These VNSAs have been responsible
for both full-fledged attacks on oilfields, airports, ancient pilgrimage sites and
other places, as well as for lone-wolf attacks in countries like Bangladesh. As a
result, the scourge of ‘ideological terrorism’ that is getting spread through these
incidents has petrified citizens the world over. As a result of joint collaborations
among nations to counter such incidents and ensure world peace, nations are
finding it prudent to give up or ‘surrender’ their sovereignty for a larger and better
cause. The concept of ‘global citizenship’ or ‘network citizenship’ has emerged.
This has raised a question over the need for and existence of State as a separate
sovereign entity. Another question is regarding the definitive elements of a State.
In order to find the answers to these questions, this article aims to analyse whether
or not the ‘absolutist’ notion of State Sovereignty still holds true; and to present
different upcoming scenarios that may elevate or devalue the traditional notion
of State sovereignty.
Relevant Facts
Failed States have assumed significance not only from the point of view of
the inherent problem itself, but also because of the disastrous consequences for
the world over. This could imply manifestations in the form of epidemics that can

8 Ibid.
9 ‘The Failed States Index 2015’, available at http://fsi.fundforpeace.org/rankings-2015, (visited on
January 15, 2017).
10 N. Caspersen, ‘Unrecognized States: The struggle for Sovereignty in the Modern International
System’, 13 (2012).
11 Boko Haram is a Nigeria-based non-state actor group that seeks to overthrow the current Nigerian
Government and replace it with a regime based on Islamic law. It is popularly known as “Boko
Haram,” which means “Western education is forbidden”. available at
https://www.nctc.gov/site/groups/boko_haram.html, (visited on January 24, 2017).
116 Contemprory Law Review [Vol. 1

spread from one part of the world to another, and other manifestations ranging
from drug trafficking and/or human trafficking to arms trafficking. All these have
serious ramifications on the general health and prosperity of the nations. For
instance, the spread of Ebola virus resulted in catastrophic conditions in many
countries in Africa. It assumed preposterous proportions, so much so that the
mismanagement of the disease became a self-fulfilling prophecy and ultimately
led to several people dying, not only in the continent, but also in other regions of
the world. In crudest terms, if people are forced to rely upon inferior foods for
their survival, instead of healthier products, it reflects a country’s progress and
development rate to a certain extent; it indicates that the cost of living index is
extremely low, and the lifestyle poor, and the people destitute. Survival of the
fittest holds true, but it should not be the rule. It should be an exception in the
twenty-first century when countries are resorting to advanced procedures and
technology. This becomes a vicious circle, where poverty becomes the cause and
poverty itself becomes the end-result. But poverty is just one factor which is
responsible. As discussed in the previous section, factors can range from unstable
political leadership to everlasting warring factions, which is the case in most
cases.
It is pertinent to note that when conflicts arise in ‘weak’ failed States, the
results are catastrophic. The presence of a non-decisive government, or the lack
of one, can undermine efforts to put conflicts at bay. In the former Yugoslavia, a
fragile central government led to a breakup of the different groups-Serbs, Croats,
Bosnians, and Kosovars. Serbia’s efforts to assert control over the other provinces
of Yugoslavia led to ethnic cleansing and population displacement.12 As Libya
handles failed Statehood, many do not stop blaming the NATO for bombing and
use it to argue against intervening now in Iraq.13 The situation in Iraq is being
much talked about. Iraq is now fractured into segments populated by Sunnis in
the north and west, Shias in the south, and the Kurds in the northeast. Kurds are
leading a war against the Islamic State to assert their independence.14 Such
conditions give rise to questions that will remain unanswered for an uncertain
period of time. Boko Haramin Nigeria made a mockery of their act of kidnapping
219 girls by making the announcement that they have been married off or are
being used as ‘bride slaves’.15 After Crimean reunification, Russia is focusing
attention on Ukraine’s humanitarian crisis.16 As a result, Russia is now host to
around a million refugees-all Ukrainian citizens-temporarily settled in different
parts of the federation.17 The Islamic State said in an issue of its propaganda

12 J. Yoo, ‘Fixing Failed States’, 99 California Law Review 95, (2011) p. 107 available at
http://scholarship.law.berkeley.edu/californialawreview/vol99/iss1/3, (visited on January 14, 2017).
13 ‘Obama and the Libya abdication’, The Wall Street Journal (09/08/2014), available at
http://online.wsj.com/articles/the-libya-abdication-1407536259, (visited on January 17, 2017).
14 The Kurds are a culturally distinct people who reside in the mountains of north-east Iraq, northwest
Iran and much of eastern Turkey, with a small community in Syria at the Turkish border. The
mountains made them hardy and divided them into fiercely independent tribes. Hence, they have never
had a homeland of their own. T. Ahmed, Kurdish crescent on the horizon, The Hindu 9, Kolkata,
August 7, 2014.
15 Boko Haram denies truce, The Hindu, Kolkata, November 2, 2014, p. 11.
16 S. Gupta, ‘Waging a war on all fronts’, The Hindu, Kolkata, October 17, 2014, p. 12.
17 Ibid.
2017] The Rising failure of State Sovereignty in Contemporary International Law 117

magazine Dabiq that it revived slavery by keeping Yazidi18 women and children
captured in northern Iraq.19 As if slavery was not much of an agony, thousands of
Yazidis remain trapped under the clutches of the IS, while others belonging to the
small community are facing genocide.20 Online images had been earlier shown
by the ISIL summarily executing captured Iraqi soldiers, and the UN High
Commissioner for Refugees, Navi Pillay, stated that if confirmed, the executions
would constitute war crimes.21 The most recent example that should be mentioned
is that of Yemen, which has been accorded the status of the ‘newest’ failed State.22
The situation is Yemen is composed of all the elements which define a failed
State. The political unrest and the warring factions of the Houthis and Sunnis
have destabilised the governance, and created a vacuum. The fact that Yemen is
the poorest Arab State only adds to its miseries, because the oil production is
expected to end by 2018. The unemployment rate in Yemen at about 40 percent
is fairly high, and considering that it comprises a large population that is under
the age of 15, the expected results are only going to enlarge the vicious circle.
The Qat trees of Yemen need a special mention here. Qat (Catha edulis) is an
ever green tree/shrub naturally growing in Abysssinian mountains as well as in
the other countries of East Africa. It was introduced to Yemen before the Islamic
Era, nowadays it is widely cultivated in the mountains of Sanaa and Taiz, because
it requires high rainfall and water-intensive conditions for growth. It has been
classified by the WHO as a drug of abuse23 because chewing its leaves produces
stimulating effects, similar to those by caffeine. The dark green leaves of Qat are
chewed in fresh condition by more than 90% of Yemen people. Thus, the
cultivation of Qat trees has not only led to water scarcity, it has also led to
deteriorating effects on the health of the Yemen people.
A theme common to all the news pouring in from all over the world is a gross
violation of human rights. Such acts definitely call from greater attention from
the world community. In the recent times, the international law is proving rather
counter-productive to the goal of fixing failed States.24 As far as ‘Responsibility
to protect’25 concerned is concerned, it still requires Security Council approval

18 The Yazidis represent one of Iraq’s oldest minorities, who are predominantly Kurdish. The
marginalization that the Yazidis have faced at the hands of IS has been a result of Yazidis’ different
religious beliefs which have been considered by the IS militants as incompatible with their own beliefs.
19 IS boasts of reviving slavery, The Hindu, October 14, 2014, p. 12.
20 Ibid.
21 Turning to Iran, The Hindu (18/06/2014), available at
http://www.thehindu.com/opinion/editorial/turning-to-iran/article6123749.ece, (visited on January
16, 2017).
22 A. Bruno, Yemen ‘The World’s Newest Failed State’, geopolitical monitor, available at
http://www.geopoliticalmonitor.com/yemen-worlds-newest-failed-State/, (visited on January 18,
2017).
23 M.A. Zahran, A. Khedr, A. Dahmash, & Y.A. El-Ameir, ‘Qat Farms in Yemen: Ecology, dangerous
impacts and future promise’, 1 Egyptian Journal of Basic and Applied Sciences 1, 2 (2014), available
at http://www.sciencedirect.com/science/article/pii/S2314808X13000031, (visited on January 20,
2017).
24 J. Yoo, ‘Fixing Failed States’, 99 California Law Review, 95, 2011, p. 99 available at
http://scholarship.law.berkeley.edu/californialawreview/vol99/iss1/3, (visited on January14, 2017).
25 The three pillars of the responsibility to protect include the State’s primary responsibility along with
the responsibilities of the international community. These responsibilities have been stipulated in the
Outcome Document of the 2005 United Nations World Summit.
118 Contemprory Law Review [Vol. 1

before an intervention can violate a State’s territorial integrity.26 It is

disappointing that on one hand, the United Nations brings together the whole
world, and on the other hand, many nations exploit the situation in failed States
under the garb of humanitarian intervention. It was indeed appalling that the
genocide in Rwanda,27 which spilled over to its neighbouring countries like the
Democratic Republic of Congo did not attract the attention of the stronger States
who had, among various recourses, the abovementioned options. It can be
affirmed that nations should not resort to double standards in order to further their
vested interests.28 On the contrary, these spillovers are generally seen over in the
neighbouring countries, and this ruins the situation. For instance, the exodus of
Syrian refugees has resulted in unemployment problems rising in Lebanon.29 A
‘failed’ State does not take birth as a ‘failed State’. It deteriorates into a failed
State over a period of time due to many factors. The causes underlying such States
depend from region to region, and most importantly, are deeply rooted in the
historical background of the contemporary International Law and International
Relations.
Causes
The end of the Cold War unleashed three kinds of States.30 One comprised
of States like Serbia, Bosnia and Croatia, which were born out of ethnic and
religious conflicts. Another set of failed States emerged in Africa and Asia, where
decolonization tripled the number of States since the end of World War, many of
which were granted the right of self-determination without possessing the ability
of self-governance.31 The Cold War kept alight nations such as Somalia and
Ethiopia, as the superpowers competed for allies in the Third World, but after the
collapse of the Soviet Union, the flow of aid was largely disrupted and now they
rank high on the index of failed States.32 A third set of failed States includes
nations such as Haiti or Afghanistan, which have historically had difficulty
supporting a fully functioning government because of tribal rivalries and endemic
civil wars. 33
A point to be noted is that most of these ‘failed States’ have emerged in the
Middle East, Africa, and Asia. Presently, the disorder being caused in the world
has a few faces, namely the Islamic State,34 Boko Haram, and other offshoots of

26 See The Responsibility to Protect, ‘Report of the International Commission on Intervention and State
Sovereignty’, (2001), available at http://www.idrc.ca/EN/Resources/Publications/openebooks/960-
7/index.html, (visited on March 11, 2015).
27 Mass slaughter of Tutsi and moderate Hutu by the Hutu majority took place in Rwanda in 1994.
28 See Ayoob, ‘Humanitarian Intervention and State Sovereignty’, available at
http://kirstenjfisher.com/wp-content/uploads/2013/12/Ayoob-Humanitarian-Intervention-and-State-
Sovereignty.pdf, (visited on January 20, 2017).
29 H. Kalm, ‘Lebanon-A Failed State?’ 137/138 Diplomaatia 1, (2015) p. 1 available at
http://www.diplomaatia.ee/en/article/lebanon-a-failed-state/, (visited on January 20, 2017).
30 J. Yoo, ‘Fixing Failed States’, 99 California Law Review 95, (2011) p.107 available at
http://scholarship.law.berkeley.edu/californialawreview/vol99/iss1/3, (visited on January 14, 2017).
31 Ibid, at 101.
32 Ibid at p. 100, available at http://scholarship.law.berkeley.edu/californialawreview/vol99/iss1/3,
(visited on January 14, 2017).
33 Ibid, p. 101.
34 Islamic State in the Levant (ISIL), the Syria-based extreme Sunni militia (change definition according
to the Islamic State). The ‘S’ in ISIS stems from the Arabic word ‘al-Sham’ which refers to Levant.
Now known as the ‘Islamic State’. Sources: Iraqi forces repulse assault on Samara, Al Monitor,
2017] The Rising failure of State Sovereignty in Contemporary International Law 119

large terrorist groups. The Washington based National Intelligence Council (NIC)
in its Global Trends report (December 2012) predicted that 15 countries in Africa,
Asia and the Middle East will become failed States” by 2030, due to their
“potential for conflict and environmental ills.35
A key reason for the situation in Iraq presently is that in 2003, Iraq’s public
and civic institutions underwent a downfall, which led to a civil war between the
Shias and the Sunnis, further aggravating the situation.36 The Stanford political
scientist, Francis Fukuyama has written a new book titled Political Order and
Political Decay, which is a historical study of how decent States emerge.37 What
these States have in common is a strong and effective State bureaucracy that can
deliver governance, rule of law and regular power rotations.38 He argues that there
is so much State failure in the Arab world because of the persistence of
kinship/tribal loyalties, and a consequential absence of shared values.39 These
kinship loyalties have given rise to a fair amount of murky politics in the region,
where small groups turn hostile to each other for their vested interests. Apart from
that, dictatorial politics results in more young men being denied both jobs and
freedom of expression, and this was accounted for in a report (2002) of United
Nations Development Programme drafted by Arab scholars and policymakers.40
Failed States stand to lose on a lot of accounts, especially if measures are not
taken by the international community to uplift them from the clutches of the
existing situations. It is indeed difficult for the international community to come
up with efficacious solutions to resolve problems, which are mainly internal. It
becomes even more problematic when the causes for such an advent are not
immediate and cannot be gauged easily. More often than not, they lay buried for
many years before they showed up, and like an explosion, they are now engulfing
the world, and disturbing its peace. It is, thus, crucial to learn from historical
notions and analyse the principles of international relations that distinguished
philosophers like Rawls have laid down. Since they claim relevance, it is
important for those who know and understand the ‘ideal’ concept, to think in
terms of global interests, so that their compassion benefits the ‘non-ideal’
populations. It might be befitting to call these failed States as a realistic
conception of the ‘non-ideal’ theory of Rawls.

Institute for the Study of War, Graphic News, Associated Press, The Hindu, (Kolkata June 12, 2014.
35 N. Caspersen, ‘Unrecognized States: The Struggle for Sovereignty in The Modern International
System’, 2012, p. 13.
36 Turning to Iran, The Hindu (18/06/2014), available at
http://www.thehindu.com/opinion/editorial/turning-to-iran/article6123749.ece, (visited on January
22, 2017).
37 T. L. Friedman, ‘ISIS, Boko Haram and Batman’, Mint, October 5, 2014, available at
http://blog.livemint.com/Opinion/lHzMHtqz3wHXdJdKXP125O/ISIS-Boko-Haram-and-
Batman.html, (visited on January 22, 2017).
38 Elie Mikhael Nasrallah, HOSTAGE TO HISTORY: THE CULTURAL COLLAPSE OF THE 21 ST
CENTURY ARAB WORLD, Chapter 4, 2016.
39 Ibid.
40 ‘Organizing Middle East peace’, Mint, July 3, 2014, available at http://origin-
www.livemint.com/Opinion/5NPXDsGMTyKHuq3eBoOCgI/Organizing-Middle-East-peace.html,
(visited on January 23, 2017).
120 Contemprory Law Review [Vol. 1

Jurisprudential Analysis of the Notion of State Sovereignty

John Rawls through the Law of Peoples41 gave the world an insight into the
working of the institutions at microcosmic level, and of the world at a macro
level. According to Rawls, ‘no tolerable world State could be stable’.42 He
asserted Kant’s Statement that a world government would either be a global
despotism or beleaguered by groups fighting to gain their political independence.
Rawls’ theory has an international element to it, which would enable the societies,
institutions, and individuals to interact with each other. Rawls described the main
ideas motivating his law of peoples as follows: Two main ideas motivate the Law
of Peoples. One is that the great evils of human history-unjust war and
oppression, religious persecution and the denial of liberty of conscience,
starvation and poverty, not to mention genocide and mass murder-follow from
political injustice, with its own cruelties and callousness… The other main idea,
obviously connected with the first, is that, once the gravest forms of political
injustice are eliminated by following just (or at least decent) social policies and
establishing just (or at least decent) basic institutions, these great evils will
eventually disappear. (LP, 6–7)43
Rawls extended his theory by imagining a ‘realistic utopia’44 which affirms
that humanity shall not witness the continuity of new and ugly evils. But he also
states an important condition for obtaining the stage of realistic utopia: all
societies are internally well-ordered: that all have just, or at least decent, domestic
political institutions.45 Rawls talked about an ‘international basic structure’, the
existence of which he justifies by saying that liberal societies are composed of
basic structures. He explains this basic structure, the elements of which he
postulates as following eight principles:
(i) Peoples are free and independent, and their freedom and independence
are to be respected by other peoples.
(ii) Peoples are to observe treaties and undertakings.
(iii) Peoples are equal and are parties to the agreements that bind them.
(iv) Peoples are to observe the duty of non-intervention (except to address
grave violations of human rights).
(v) Peoples have a right of self-defense, but no right to instigate war for
reasons other than self defense.
(vi) Peoples are to honour human rights.
(vii) Peoples are to observe certain specified restrictions in the conduct of
war.

41 J. Rawls, ‘The Law of Peoples’, Critical Enquiry 20 (Autumn) 1993, available at

http://nw18.american.edu/~dfagel/Philosophers/Rawls/TheLawOfPeoples.pdf, (visited on January 23,
2017).
42 Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/rawls/, (visited on
January 24, 2017).
43 Ibid.
44 C. Brown, ‘The Construction of a ‘Realistic Utopia’: John Rawls and International Political Theory’,
LSE Research Online (2002), available at
http://eprints.lse.ac.uk/744/1/Construction_Realistic_Utopia.pdf, (visited on January 24, 2017).
45 J. Rawls, ‘The Law of Peoples’, Critical Enquiry 20 (Autumn) 1993, available at
http://nw18.american.edu/~dfagel/Philosophers/Rawls/TheLawOfPeoples.pdf, (visited on January 23,
2017).
2017] The Rising failure of State Sovereignty in Contemporary International Law 121

(viii) Peoples have a duty to assist other peoples living under unfavorable
conditions that prevent their having a just or decent political and social
regime. (LP, 37)46
The International Law is composed of almost all abovementioned principles,
barring the last one. His theory has become increasingly relevant in the
contemporary age not because of the principles that he laid down, but because the
behavior of the international community largely contradicts his theory. What we
see in the world today is largely comprised of crimes against humanity, against
self-defense, and against world peace, in furtherance of vested interests. Smaller
‘liberal’ societies have, instead of paving the way for a new social world order
where everything would be peaceful, resulted in avarice that seems to be
prevalent everywhere. Rawls conception of “ideal/non-ideal”47 theories imply
that once we are aware of what ‘should be done’, we are supposed to apply the
normative aspect to the prevailing circumstances, as in, ‘what is being done’. It
is because something that ought to be done constitutes elements of an ideal
concept. But when we apply the same concept to a realistic plane of application,
the ideal concept might fail. And this failure has resulted in the birth of ‘failed
States’, which threaten the notion of State sovereignty at best, and threatens life,
at its worst. When smaller interests overtake the larger public interest, societies
are destined to be doomed. It has become so common in the world that there are
places where the lifestyles of most people contradict the notion of normalcy.
Noted scholars have questioned the immediate effects of such diminishing
relevance of sovereignty.48 They question whether sovereignty exists as a right or
a responsibility. The traditional concept of sovereignty was often expanded into
the notion that where sovereignty exists, responsibility exits. But when it comes
to failed States, this traditional aspect no longer holds true. The Westphalian
concept of nation-State underwent a transformation when the Montevideo
Convention (1933) expanded the definition of a ‘State’ to comprise of four
elements: a permanent population, a defined territory, government, and
sovereignty. The existence of all the four elements together in such ‘failed States’
is rebuttable. Firstly, the status quo in most of the ‘failing’ or ‘failed’ States is
that most of the population is fleeing to areas of security. For instance, there are
millions of Syrian refugees that have taken shelter in the bordering areas of
Turkey. Also, it leads to destabilizing effects on the population of the sheltering
countries as well. Secondly, with the absence of stable political governments in
these countries, a political void gets created, which cannot be filled with three or
four warring factions who will never unite for peace. Thirdly, sovereignty of a
State gets threatened due to the political vacuum and the resultant wars. As such,
it becomes a paradoxical situation where securing the rights of the ‘permanent’
population becomes a responsibility of the very State which does not exist in
reality. This is known as sovereignty as responsibility.49 Such situations cannot
be resolved without the intervention of the international community, in the form

46 Ibid, p. 46.
47 Ibid.
48 See D.W. Potter, ‘State Responsibility, Sovereignty, and Failed States’, 2004, available at
https://www.adelaide.edu.au/apsa/docs_papers/Others/potter.pdf, (visited on January 25, 2017).
49 Ibid.
122 Contemprory Law Review [Vol. 1

of help from the United Nations, or other Intergovernmental organizations, or

assistance from countries. It further implies that sovereignty cannot be regarded
as something absolute, as per the traditional concept of sovereignty.
One may argue that concept of ‘failed States’ requires no attention when a
concept of something akin to a ‘world government’ is offered by the existence of
United Nations. The logical argument that may follow from it is that all the States
which are party to the United Nations assist these ‘failed States’ in getting fixed,
because it will be the next big step towards realizing world peace. But would
getting them ‘fixed’ be the ultimate solution? The next question that may arise is
the guarantee of the stability of these States after ‘fixing’ them. Much of the legal
scholarship available tends to put the State on a pedestal because the State is
considered to be an ‘ideal’, or ‘static’ concept. Contradictory to the popular
notion, ‘failed States’ show the world that the ideal of the ‘ideal’ State does not
exist, and in fact, ‘State’ is a highly dynamic concept because it depends upon
variables such as people, health, economy, education, policies, etc. In the era of
globalization, the State cannot be regarded as a mere idea. It is an idea in motion,
and in commotion in case of ‘failed States’. There are two ends of the spectrum
on which the notion of a State largely is spread: one is peace, and the other is
chaos. The States which lie in the middle could be known as ‘quasi-States’.
Depending on the varying degrees of variables, a State could be classified as a
‘proper’ State or a ‘failing’ State, or a ‘quasi’ State, or a ‘failed’ State.
The next question that arises-what is more important-the existence of a
‘State’, or the existence of peace in the world? If there are preconditions to the
existence of a proper State, apart from those mentioned in the Montevideo
Convention, then there are many examples which manifest them. Palestine is
recognized by some countries as a ‘proper’ State, whereas it is not recognized as
a State by many others. Although obsolete for the present international
circumstances, Article 7850 of the United Nations Charter provided for a system
of Trusteeship, which required consent. Consent could undoubtedly be given only
by a ‘State’ which was ‘sovereign’. Thus, a ‘failed State’ may still have retained
its identity as a ‘State’ if it were to be a part of the Trusteeship. Thus, it weakens
the arguments that have been raised in favour of the traditional concept. There
may be submitted two points of view with regard to safeguarding the future of
State sovereignty. According to the first view, it can be said that the conditions
that aggravate the shape of State sovereignty may give rise to cooperative
sovereignty,51 as a stepping stone to achieving some form of ‘World
Government’. Nations may decide to cooperate with each other on the issues that
are of relevance to the majority, going beyond the traditional concept of
sovereignty, and beyond the notion of non- interference. It may dilute the
boundaries of States, literally and metaphorically. Thus, it can be said that the
whole concept of sovereignty may undergo a change, since it has been evolving
from the time of the Treaty of Westphalia. This ‘change’ may lead to a state of

50 Article 78. “The trusteeship system shall not apply to territories which have become Members of the
United Nations, relationship among which shall be based on respect for the principle of sovereign
equality.”
51 S. Besson, ‘Sovereignty in Conflict’, 8 European Integration Online Papers 1, 1 (2004), available at
http://eiop.or.at/eiop/texte/2004-015a.htm, (visited on September 29, 2016).
2017] The Rising failure of State Sovereignty in Contemporary International Law 123

world peace, similar to the ‘Peace of Westphalia, thus repeating history. This
gradual evolvement indicates that customs may play an important role, which is
contradictory to Austin’s notion of a sovereign, because he excluded customary
law and in particular, public international law from the province of
jurisprudence.52 Thus, a time may come when State sovereignty shall be
recognized by dynamic elements existing outside of a structure.
The second point of view is presented as a culmination of the fallacies of the
first. Firstly, there is too much diversity in the world to conceive an ideal ‘World
Government’. The governments functioning now in the States fall into various
categories: democratic, monarchic, federal, unitary, etc. Secondly, ‘Failed States’
may have their own problems, but they still retain the identity of being States. It
is an irony that what may generally be considered as internal strife, or internal
conditions of rivalries and tensions escalate into an all-encompassing scenario,
because of the presence of multicultural societies, funding from rival nations, and
so on. Thus, it can be considered rather analogous to a dormant World War. It is
dormant because even though it lacks participation from all corners of the world,
it seems like a World War because it involves most of the States in this age of
globalization. Iraq is perhaps the best example. Oil reserves have been taken over
by the Islamic State (IS) group, and demand for oil has risen in the world.
Consequently, prices of crude oil have lowered down to unprecedented levels.53
Saudi Arabia, which has rich reserves of oil, remains a beacon of hope after the
siege of Iraq. But Saudi Arabian reserves are expected to last not more than 20
years from now54, and considering that many countries, like the United States and
India are dependent on imports from the Gulf, it is not impossible predict the
future if alternatives are not discovered.
Perhaps the best example of a realm where countries can and do converge to
fulfil conditions of both “cooperative sovereignty”, and a ‘World Government’ is
that of environment pollution and the resultant climate change. Cooperation has
been successful so far in the realm of climate change, if we look at negotiations
and Summits that take place, and have taken place in the past. But it takes a
backseat when it comes to cooperating beyond the individual coastlines. For
instance, the plastic waste floating in the gyres of the Pacific Ocean55 is very
difficult to remove because it is impossible to attribute the extent of damage to a
particular country, unless proven scientifically, since it comprises of garbage
originating from many countries. Perhaps this is an area where ‘cooperative
sovereignty’ should be more active, because it would mean taking responsibility
for actions and/or omissions. The only major problem facing this can be
demanding active participation from countries that had nil or negligible

52 J. Rawls, ‘The Law of Peoples’, Critical Enquiry 20 (Autumn) 1993, available at

http://nw18.american.edu/~dfagel/Philosophers/Rawls/TheLawOfPeoples.pdf, (visited on January 23,
2017).
53 B. Plumer, ‘Why oil prices keep falling-and throwing the world into turmoil’, Vox, available at
http://www.vox.com/2014/12/16/7401705/oil-prices-falling, (visited on January 26, 2017).
54 E. Gosden, ‘Saudis may run out of oil to export by 2030’, The Telegraph (September 5, 2012), available
at http://www.telegraph.co.uk/finance/newsbysector/energy/oilandgas/9523903/Saudis-may-run-out-
of-oil-to-export-by-2030.html, (visited on November 11, 2016).
55 Great Pacific Garbage Patch, available at http://education.nationalgeographic.com
/education/encyclopedia/great-pacific-garbage-patch/?ar_a=1, (visited on January 24, 2017).
124 Contemprory Law Review [Vol. 1

contribution to the overall negligence. Hence, it becomes imperative to analyse

the areas which demand the cooperation of the international community and strive
for a peaceful world order.
Conclusion
Mr. Ban Ki Moon, the former Secretary-General of the United Nations
believed that “conquering territory through aerial bombardments into densely
populated civilian neighbourhoods is not a victory. Starving besieged
communities into surrender is not a victory.”56 Fukuyama argues that in order to
tackle the Islamic State barbarism, the Arab world has to tackle its tribalism and
sectarianism.57
The list of countries in the 2012 NIC report included Afghanistan, Pakistan,
Bangladesh, Chad, Niger, Nigeria, Mali, Kenya, Burundi, Ethiopia, Rwanda,
Somalia, DR Congo, Malawi, Haiti, Yemen.58 According to the Fund for Peace,
the failed States are also targets for Al Qaeda linked terrorists.59
The United Nations should revive its unity by making sure that ‘fragile’ and
‘failed’ States are given utmost attention to. The later the action takes place, the
worse the ramifications will be. Non-State actors and terrorist groups are
opportunists at their worse and would exploit any political vacuum that would be
created in the absence of a strong leadership. State sovereignty determines the
strength of a nation and should not be left vulnerable to such factions. It is
imperative that countries take up a united stand against any form of violations.
The first step should be formulating an extensive definition of ‘failed States’.
Countries should continue to see such disturbances as threat to international peace
and security and take adequate measures to prevent such happenings and restore
peace. Also, globalization has helped to eliminate barriers, but it has also resulted
in vested interests, which are contrary to the sole purpose of globalization. State
sovereignty is no more a sacrosanct concept because it is being violated in
different forms. The Security Council definitely needs an overhaul and there is a
need to amend the provisions of the United Nations Charter, and specifically that
of Chapter VII in order to make sure that a situation is not viewed through a
political lens, but through a lens coloured by the aim of maintaining world peace
and respect for territorial integrity and sovereignty underpinned in the Charter.
The membership of Security Council should be truly representative of various
geopolitical regions. Also, international law should be made stronger by ensuring
that as far as possible, similar rules are followed to resolve a situation are
followed by the countries ratifying a treaty.
Apart from the suggested remodelling of the United Nations Charter,
especially its provisions in Chapter VII, it is of utmost importance that the
International law be given consideration to. Often, international law is considered

56 For an arms embargo in a conflict zone, The Hindu, Kolkata, June 27, 2014, p. 11.
57 T.L. Friedman, ‘ISIS, Boko Haram and Batman’, Mint, October 5, 2014, available at
http://blog.livemint.com/Opinion/lHzMHtqz3wHXdJdKXP125O/ISIS-Boko-Haram-and-
Batman.html, (visited on January 22, 2017).
58 M. Chossudovsky, ‘Wiping countries off the Map: Who’s Failing the Failed States’, Global Research,
available at http://www.globalresearch.ca/destroying-countries-transforming-syria-into-a-failed-
State/5317160, (visited on January14, 2017).
59 Ibid.
2017] The Rising failure of State Sovereignty in Contemporary International Law 125

a weak law, and the mechanism followed in the treaties and conventions should
be strengthened in its totality by cooperation among the member nations. World
peace is an aim which requires a concerted effort on the part of the countries of
the world, and cannot be acquired in one day. If the States function like ‘pseudo-
sovereigns’, this effort cannot be realised. In pursuit of a peaceful world order,
the nations have to carry out the utmost important task of building trust among
them.
Secondly, it is high time that the attention got shifted from theory to action.
In short, embarking on arriving at new definitions and criteria for determining the
existence or non-existence of a failed State is a long process, which falls many
steps short of the actual action that is urgently required. It is no small feat that
millions of people around the world are getting displaced from their native places,
and do not have the basic human rights of access to edible food, drinking water,
proper sanitation, and decent housing. It is an ironic shame for any ‘sovereign’
State that its citizens are born without human rights.
Thirdly, the institutions responsible for joining hands in a concerted effort
towards eradicating the spreading menace must show their robustness and
dedication. It is not an impossible task to live with each other despite
disagreements, but it is important to understand that mature civilizations handle
disagreements and sacrifice petty issues that may prove detrimental to the social
order. Only then can States become truly ‘civilized’. Cold war ushered in an era
of nations clamming up to each other, but gradually a phase came when the
nations started warming up to each other. It is extremely paradoxical that in the
twenty-first century, when the global population should have come a long way
from the Treaty of Westphalia, we are still following on the remnants of the bitter
past. The emergence of such States has resulted in a new form of international
jurisprudence taking shape. It helps to analyse through historical, chronologically
arranged discourses and texts, because it helps scholars to analyse why the
gradual transformation of States happen.
It is time to take one step backward to understand the situation from a
veritable perspective, but it is also time to take two steps forward to eliminate the
causes that have penetrated many regions of the world, akin to a disease. That is
the reason public opinion cannot be disregarded at all. The conditions in which
people dwell provide prior indication of the situation-whether it represents an
ominous foreboding or not. They represent the veracity of the analysis and
corroborate the statistics. Thus, such measures should never be underestimated.
State sovereignty once gave relevance to nation-State, and it has become an
extremely delicate concept. The revival of the strength manifested by nation-
States would go a long way in establishing a renewed era of world peace. A
sovereign State attains its sovereignty when it becomes ‘independent’, but it
maintains its sovereignty only when its citizens think collectively, and not
independently.

****
 RHETORIC AND POETICS IN POLITICS AND JUSTICE
Madhukar Sharma & Sopan B. Shinde
ABSTRACT
Ability of human beings to communicate using language makes
them more powerful than rest of the creatures on this planet and
acts as a catalyst of socialization. In the process of
socialization, those who communicate effectively emerge more
powerful than the rest. Effective persuasion is one of the major
elements for any communication event to be effective. Since
ancient times, Rhetoric existed as a discipline that studied the
persuasiveness of language. Beyond the poetic usage of
language, Rhetoric has pivotal place in judiciary, statecraft and
social organization. Ancient Greek philosophy to contemporary
politics, Rhetoric remained a pivotal aspect in construction and
transaction of knowledge.
__________________________________________________________________________________________________________

Keywords: Rhetoric, Poetics, Ethos, Pathos, Logos, Political

Rhetoric.
Introduction
Either as a natural ability or as artistic mastery acquired through experience,
men persuade their audience; they uphold their own arguments or in refute those
of others. These skills of persuading the audience are considered to be Rhetoric.
The use of Rhetoric could be traced to have existed since the very beginning
socio-political life itself.1 Historical evidence suggests that the Rhetoric was
much in use in education imparted by the Sophists before and during Greco-
Roman times and its journey to the present era has withstood ups and downs to
the extent acquiring a derogatory sense of meaning for accusing people of
wrongly influencing people.2 Quite contrary to this derogatory sense stands the
agreement between Socrates and Phaedrus as it concludes on a special power of
Rhetoric; the power of psychagogia, or leading the soul. This deeper significance
of the art of Rhetoric has probably brought about its resurgence it in the twentieth
century. 3
Oxford Dictionary of Politics simply defines, “Rhetoric is the persuasive use
of language”4In the general sense it is interpreted to refer to the use of language
to impress the audience and influence them for or against a certain course of
action or a certain way to thinking. Rhetoric, in the twentieth century, came to a
further generalized interpretation towards communication wherein people open
themselves and become receptive of each other; the way they make sense of the

 Assistant Professor of Political Science, Maharashtra National Law University, Nagpur, e-mail-
[email protected];
 Assistant Professor of English, Maharashtra National Law University, Nagpur, e-mail-
[email protected].
1 Aristotle, THE ART OF RHETORIC, ed. 1926, p. 17.
2 James Corosswhite, DEEP RHETORIC, ed. 2013, p. 24.
3 Aristotle, THE ART OF RHETORIC, ed. 1926, p. 17.
4 Iain Mclean and Alistair Mcmillan, OXFORD CONCISE DICTIONARY OF POLITICS, ed. 2009, p.
463.
2017] Rhetoric and Poetics in Politics and Justice 127

larger world and make changes their orientation towards the world, and the way
they develop relationships with each other through communication: a cultural
give and take through communication.5 In this sense, the concept of Rhetoric
intersects with the cognitive domain of knowledge.
Concept of Rhetoric
The concept of Rhetoric in a cognitive sense is the way we interact with and
transcend the world around us; the way we make sense of it and understand how
others around us make sense of it. This leads us to ‘how we know’ and ‘how we
relate’ to the world and ‘how we construct and modify our knowledge of things.
Taking this view into consideration, organizations like International
Baccalaureate have altered the Rhetorical discipline of studies into Theory of
Knowledge.
On the other hand, Rhetoric is the way we understand how others make sense
of the world. It alters our understating and belief based on how people persuade
us through communication or discourse. We experience each other in
communicative events, thus, the rhetoric gives our understanding a form and
direction by our being with each other and our being with ourselves. The scope
of Rhetoric reaches to all non-formal communication, including inward
deliberation that is caused by getting persuaded by the means of logos, pathos
and ethos.
Thus, reaches the discussion to Logos, pathos and ethos that are the three
modes of persuasion introduced by Aristotle in his ‘Art of Rhetoric’. Deliberation
on these three modes of persuasion should support our understating of the nature
and scope of Rhetoric.
Aristotle’s Three Modes of Persuasion
(i) Logos- The concept of logos existed since the time of Sophists, which
they used to refer the art of discourse without much deeper speculation.
However, Aristotle used to refer it to reasoned arguments in the field of
Rhetoric. This was considered the faculty of human beings that separated
them from animals; made them rational to decide between good and bad, just
and unjust, advantageous and disadvantageous etc.
The concept of Logs has come to be developed into the modern disciple of
logic. However, the Aristotelian doctrine of logos included the fine sense of
interaction of human beings with the world and with each other, which is not so
much central to the modern interpretations in the area of logic and theory of
knowledge. Logos base or logical thinking is considered empirical and scientific
and an eminent psychologist, Carl Jung contrasted it with mythical thinking.
Logos demands observable fact, controlled experiments and deductive proofs in
explanation that should persuade the audience. For mythical thinking, Jung
invented a term called mythos, which is more subjective and comes as
individual’s transformation in reaction to the stimuli from the world. The field of
sciences and logic does not have much space for those subjective ideas in
persuasion.
(ii) Pathos- represents an appeal to emotions. In communication, the orator
or the speaker may arouse emotions of piety, fear, anger, hatred, abhorrence,

5 Aristotle, THE ART OF RHETORIC, ed. 1926, p. 17.

128 Contemprory Law Review [Vol. 1

happiness etc. This appeal to emotions of the audience, which are already
laying in them, could be aroused through poetic expression, narrative stories
or experiences, and metaphoric or personified representation of the world.
In order to arouse specific emotions, the speaker has to know the situation,
the audience he is facing and then decide what emotion he wants to arouse with
what effect? The state of mind of the audience and similarities and differences
among the individuals are the grounds to decide the emotion to arouse. On the
part of a speaker, it is important to know a great deal of the past experience of the
audience, their affiliations to the ideologies and their misunderstandings or
misconceptions in comparison of logos, pathos and the quality of all human
beings.
(iii) Ethos: It is the moral character of an orator or participant in the area of
rhetoric and the third means of persuasion according to Aristotle’s doctrine
of Rhetoric. The moral character of a person influences the logos and pathos
that he or she is using as a means of persuasion. Ethos shares complimentary
relationship with logos and pathos. The way a speaker has employed logos
and pathos in the past communication events leave impressions among the
audience and his consecutive appearance among them have already set some
expectations. However, even if one entirely new speaker among the audience
he is seeing for the first time, his credentials, professional experiences and
the very reasons for his invited presence among his audience could establish
logos.6
Ethos or the moral character evolves through three things:
(a) Phronesis- It is the speaker or orator’s practical knowledge about the
subject matter he is dealing with.
(b) Arte- It is the virtuous character of the person and the goodness and law
abiding life he has practiced so far in the society
(c) Eunoia- is the empathy of the orator; the way he establishes goodwill
towards his audience and makes them feel cared for as the result of his
Rhetoric7.
The three modes of persuasion- logos, pathos and ethos- are central to
Aristotle’s doctrine of Rhetoric. The study of these three modes of persuasion
leaves hardly any space for derogatory interpretations. In fact, this ancient art of
persuasive speech has dual advantages in the process of communication. First, it
offers tools of persuasive speaking with deeper understating of logical or
reasoned arguments, ways and methods of emotional appeal to audience and path
for the speaker to achieve credibility or establish leverage towards his audience.
Second, it is a tool of interpretation for the audience. The audience could interpret
the speech or oratory, or any piece of articulation in communication in terms of
whether it is credible or an abuse of language to attain vile intentions or to lead
to false judgments. If the audience is equipped with these tools, the message that
would percolate to them would essentially be genuine in its nature.

6 Ibid, p. 17.
7 Id.
2017] Rhetoric and Poetics in Politics and Justice 129

Rhetoric and Poetics

The connection of Rhetoric to Poetics needs consideration as to reach its
real interpretations. Literary theories have demoted Rhetoric for the sake of their
love for Poetics, because they considered the former the domain of scientific and
rational areas of study.8 Literary studies remained unaffected by this move, but
Rhetoric was left with jerky patch of journey. What has gone unnoticed during
this divorce of the disciplines is the fact that majority of the ancient Rhetoric
preserved till date is in the poetic form and majority of ancient literature employ
Rhetoric in its poetic engagement of the world.
Quite contrary to this development in literary theory, in ancient times of
Greek and Romans, the duo of Rhetoric and Poetics had remained in common
association not only in their definitions but also in literary practice.9 Odysseus in
Homer’s legendry Odyssey was a famed orator; and so well-known is Achilles’
rejection of Achaean commanders efforts of convincing him to win back to war
in his Iliad in a Poetic Rhetoric-“If I hold out here and I lay siege to Troy, My
journey home is gone, but my glory never dies.”10
This association of Rhetoric and Poetics was not accidental, but a rather
complimentary development: Rhetoric gave meaning to Poetics as Poetics
provided a rhythmic medium to Rhetoric on significant themes of life.11
Ancient Indian literature strengthens this argument further since all
philosophical discourse is rhetoric in nature but written in a poetic form. The
Vedas are in Sanskrit poetic form. Shri Krishna in The Bhagwat Gita employees
intriguing Rhetoric to develop profound arguments in the melodious and precise
Sanskrit Poetic style to convince Arjuna to be instrumental in the war against his
own kith and kin as they are already dead having lost their ‘dharma’- the
righteousness. Even much modern text of ‘Dasbodha’ composed by Samartha
Ramadasa, is rhetoric in a poetic form of prakrit Marathi. Major ancient literature
in this way engages Poetics and Rhetoric as complimentary tools.
Because Poetics is precise, engaging through rhythmic composition and
Rhetoric is logical, meaningful and leading to persuasion; the separation weakens
both in their own respect. Rhetoric in plain prose would be dry and monotonous.
Poetics for the sake of Poetics, without engaging in the Rhetoric about the world
around, would be meaningless. That is probably how we have plethora of
Bollywood songs with myriad tunes composed and released every year, but they
score so low in their meaningful appeal, that they seem to disappear in the thin
air in a short span of time.
Rhetoric and Justice
Laws are the product of rhetorical reasoning. We as the citizens of our own
state have reached to some common understanding through our reasonable

8 Berlin, James A. ‘Rhetoric and Poetics in the English Department: Our Nineteenth-Century
Inheritance’. College English, vol. 47, no. 5, 1985, pp. 521–533, available at
http/www.jstor.org/stable/376886, (visited on March 10, 2017).
9 Ibid.
10 Homer, ILIAD (Book 9).
11 Berlin, James A. ‘Rhetoric and Poetics in the English Department: Our Nineteenth-Century
Inheritance’. College English, vol. 47, no. 5, 1985, pp. 521–533 available at
http/www.jstor.org/stable/376886, (visited on February 11, 2017).
130 Contemprory Law Review [Vol. 1

interpretations of the world that truths must not be forced onto us. On the contrary,
we exercise our freedom to establish our own truths through our experiences of
the world. We have evolved with such collectively established truths and we as
states accept them as laws. Thus, any legal issues being faced by our society are
to be resolved with rhetorical reasoning and interpretations of the same truths as
are in evolving society.
When justice is to be reached with such reasoning and interpretations,
subjectivity and objectivity of interpretations could be catastrophically
misleading. Justice is concerned with the world on one hand with our
transcendence with it, and on the other with ethics, morals and principles already
established through the previous generation’s transcendence with the world.
From the point of view of our Rhetorical transcendence with the world, freedom
sought by individuals in a society is concretely in conflict in two ways: concept
of freedom for some of the citizens interacts and comes in conflict with others;
and concept of freedom for some others clashes with the very legal system in
place. It is inevitable part of living in the world together as a society. Thus, the
legal argumentation is that the process of resolving such conflicts to provide
justice. However, it is quite interesting fact that this argumentation process itself
is a communication event, and there are strong and deep rhetorical elements of
logos, pathos and ethos that are apparently the means of persuasion even in the
courtrooms.
Logos is quite useful in legal argumentation with a logical appeal
substantiated by relevant facts. The judges themselves use the previous judgments
in order to give solidarity to the verdict they give. The trial procedure relies on
logic and rational decision making procedure. Judges are human beings and
individuals who are persuaded by use of such logical appeals and on their part,
they could see objectively how they are persuaded by the attorney with the
understanding of logos. Thus, logos play a dual and intersecting function:
attorneys use it as a tool of persuasion with the judges and the judges use it as a
tool of analysis of attorney’s arguments.
Good human beings are believed easily if there are complex options or
choices to make the possibility that the good would have a better chance of
winning the argument than the counterparts. This being good of the attorney
(ethos or the strong character) may be in the superiority of logic or the logos at
times. Apart from that, even the personal goodness has a bearing the capacity to
persuade. It may not have a great deal of influence on the judges as they are
objective in their tasks, and establishing credibility with sound preparation of the
case would be valuable. There are several factors of ethos that are important on
the part of an advocate: position, speech, social status, confidence in presenting
arguments, eye contact, body language with posture, gestures, facial and
expressions, intelligence reflected to establish trustworthiness etc.
Emotions or Pathos too could influence the decision making procedure.
Though there is a criticism of the fact that there should be an appeal to the
emotions in the court room, there is possibility of it being in influential position
due to the fact that the room is filled with human beings. When it comes to what
is at stake in the judgment, sympathy, mercy, anger, hatred etc. are likely to have
a space in legal logic and imagination. “I have nothing but pity in my heart for
2017] Rhetoric and Poetics in Politics and Justice 131

the chief witness for the state, but my pity does not extend so far as to her putting
a man’s life at stake, which she has done in an effort to get rid of her own guilt”,
says Atticus with a great passion in a closing statement of the trial of his client in
Harper Lee’s ‘To Kill a Mockingbird’. Atticus arouses a feeling of guilt-pathos
as means of persuasion and a rhetorical strategy-within the jury. The aim of
Atticus is to move the jury in favour of his client. The word choice and the manner
in which those words are delivered have a great influence on the audience.
Presentation of facts in the courtroom needs to be made in some style and not
as vomiting out the records. Besides being accurate, factual and legally acceptable
as well as adequate, the lawyer has to be compelling with absorption and
emotional forcefulness. However, one has to maintain balance in using all three
modes of persuasion. Pathos may not be put forward in relation to logos or that
would lead to the argument becoming pathetic. Ethos is important as far as
establishing credibility and relation of giving and taking respect in the courtroom
and maintaining higher standards of professionalism, but there has to be a good
logical appeal that follows. And as far as concerned to the derogatory sense of
rhetoric and its criticism in using the same in courtroom, the judges would use
their own rhetorical analysis of three modes of persuasion in objectively attaining
the truth.
Rhetoric and Politics
All political movements have rhetorical theme of ‘We shall overcome.’
During the Indian freedom struggle, the renowned Urdu poet and freedom fighter
Hasrat Mohani coined a poetic slogan i.e. ‘Inqulaab Zindabad’. Later, it was
treated as the punch line for the entire freedom movement and made revolutionary
contribution. “Sarfaroshi ki tamanna ab hamaare dil mein hai”, which Bhagat
Singh, Raj Guru and Sukhdev were humming as they marched the last journey of
their lives or Allama Iqbal’s “Saare jahan se achcha Hindustaan hamaara”, are
famous examples of the rhetoric during the Indian`s movement for the
independence. These expressions were treated as the anthem for the freedom
fighters and they appealed to masses for support. In twentieth century Urdu was
not only an official and newly evolving but also a very prominent language in
Indian subcontinent. The freedom fighters and activists exploited the lucid poetics
of ‘shero-shayari’ of Urdu Jubaan in establishing and building the feeling of
nationalism. Urdu writing and popular folklore also contributed a lot in this
revolutionary process, Soz-e-Watan, a famous story collection of Premchand,
rhetorically emphasizes the importance of the Watan (The Nation) for the virtues
of patriotism during the freedom struggle of India. In essence, the character or
ethos of the nation was in making for the first time.
Politics is the art of mass engagement; it starts with the communicating the
basic element of the society. The state comes into existence, originating in the
bare needs of life, and continuing in existence for the sake of a good life.12 In the
modern era of democratic politics, people’s support and their acceptance of the
political leaders are the most crucial acknowledgements for a politician. Mahatma
Gandhi realised the real situation of the Indian people and opted the most optimal
policy of the Satya, Ahimsha, Savinay and Avagya. Although Gandhi was not a

12 Aristotle, POLITICS BOOK-I, ed. 2007, p. 28.

132 Contemprory Law Review [Vol. 1

good orator, his words always had a great impact in society because people
pursued his philosophy with a great zeal. Gandhi renounced clothes in order to
participate in the plight of the people. He generalized the situation of entire India
and lived as an idol; he emerged as their real representative by adopting their
physical characteristics of limited means. Parallel to the ethos of nationalism,
there was also the ethos of the father of the nation in metamorphosis as Mahatma-
a religious personality, a saint. Gandian rhetoric had a huge philosophic value as
Mary Beard explained ‘rhetoric starts with that idea, with which people might
engage with them, there might be something to think about’ and, if we could bring
back just one thing from the ancient world, it would be the art of rhetoric-
persuasion through argument.13
The concept of ‘Prarthana Sabha’ (prayer gathering) was adopted by
Mahatma Gandhi to address, engage and encourage through secularly spiritual
songs and chants such as “Raghupati Raghav Raja Ram, Ishwar Allaha tere
naam”. Indians were spiritual and inclined towards living life of high moral
principles. In order to develop harmony among the volunteers coming from
several sects, he emulated an appeal through “Vishnava Jana to, Tene Kahiye Je
Peed Paraaye Jaane re”. Apart from the philosophy of Ahimsa, these emotions-
the mode of Pathos-were aroused and employed in creating the feeling of oneness,
being collective and one nation through heat-changing.
When Gandhi returned from South Africa, he was already renowned symbol
as a fighter for civil rights against the regime of the British Colonial Imperialism.
In addition, his early writings for Hind Swaraj (Indian Self Rule), the Indian
people symbolized him as a prophet for Indian independence. His recognition as
a harbinger of Indian independence was nothing more than the logos that his
achievements in India would logically be of the same stature or even higher than
those in his leadership in South Africa. So strong was the sense of logos that
Gandhi was the right leader for masses due to his achievements and appeal to the
masses that simple things like khadhi and Gandhi Topi (cap) emerged as symbols
of Indian nationalism.
Aristotle theorizes an interrelationship between politics and the rhetorical
type deliberativum, a way of speaking that enhances making good choices within
the available possibilities. Modern rhetoricians, discourse analysts and linguists
focus on the speaker`s linguistic and meta-linguistic activity. Machiavelli, a
realistic thinker and philosopher, advised the Prince that rhetoric is a
manipulative tool in the politics to manage the personal interests. In principle, the
audience is seen less in rational than in biological terms.
Polito-linguistics has emerged as a modern field of rhetorical application to
political discourse. It analyses the political discourses, language of the leaders
and slogans. The relations between Politics and Rhetoric can be defined with
interplay: Politics as rhetoric, and Rhetoric as persuasive tool in politics.

13 Mary Beard, BBC NEWS, available at http://www.bbc.com/news/uk-politics-3112884, (visited on

January 30, 2017).
2017] Rhetoric and Poetics in Politics and Justice 133

Politics as expressed through rhetoric and partially rhetorical criticism

deconstruct political discourse by applying rhetorical framework.14 Influencing
the emotions in order to augment the political popularity through inflated ethical
commitments are major factors for convincing potential voters logically.
Particularly in Indian modern politics, ethnicity and spiritual inclinations of
voters as group are exploited to generate vote-banks.
Political campaigns in India are the witness wide use of rhetorical language
and arguments. Politician always have a hunch of the folklore rhetoric to address
diverse social groups and to attract the critical voters of the rural India. Logical
coherence and simplification of the language is an important aspect of modern
political rhetoric; although some philosophers advised that political rhetoric and
general rhetoric must have some differences.
Speaker`s skillful attitude towards composition and presentation created a
reasonable cum emotional appeal, that is, by a literate user of language.15It also
has impact of rhetorical actions as gestures, voice, strength, colour, image,
distance, appropriate associations and emotive reactions. In Indian elections
campaign, besides the leaders’ presentation, there are many audio-video tools
used to convince the people and these compositions are usually prepared by the
professionals in the context of the hegemonic influential views and deeds of the
leader. All regional and national parties produce numerous audio-visual
substances in regional languages.
In the general election of 2014, anti BJP parties used a rhetoric that “Basant
me Kamal Nahi Khilta (Lotus can’t be flourished in Spring), whereas BJP and its
allies manifested their vote appeal through “Sabka Sath, Sab ka Vikas”, “Abki
Baar Modi Sarkar”, Achche din Aayenge etc. as the famous counters from the
BJP to opposition. Bahujan Samaj Party coined many slogans based on
Mayawati`s identity as a daughter of the deprived section (Dalit ki Beti) and
Recently Samajwadi Party coined a new slogan in respect of party Chief
Mulayam Singh Yadav,‘JiskaJalwa Kayam Hai Uska Naam Mulayam Hai’
(Whose glory is enduring, that name is Mulayam). Famous Dalit leader, Kanshi
Ram, raised a crucial term to popularise Mayawati in 1996, ‘Tilak, Taraju or
Talwar, Inko Maro Jute Chaar. On the other hand, the Congress always tried to
have slogans emphasizing the values of secularism, democracy and patriotism. A
few of them were: ‘Congress ko lana hai, desh ko bachana hai’ or ‘jati dharma
ke jhagre choro, Congress senata jodo’, ‘koi jaat, koi biradar, Congress me sabhi
barabar’.
Technology has moved rhetoric beyond an art of persuasion and invoked
multiple voices and images of praise and ridicule affecting the formation of
electoral political discourse and its power.16 Laloo Prasad Yadav is well known
for his sense of humour; once his urged for support on the basis of caste identity
“Lathi utthavan, tel pilaavan, Bhaajpa bhaghaavan” (Take your lathis, oil them
well and chase the BJP out). Leftist party leaders always start their speech with

14 James Crosswhite, DEEP RHETORICPHILOSOPHY, REASON, VIOLENCE, JUSTICE, WISDOM,

ed. 2013, p. 64.
15 Paul E. Corcoran, POLITICAL LANGUAGE AND RHETORIC, 1979, p. 74.
16 Asha Sarangi, RITUAL OF POLITICAL RHETORIC, available at http/www.india-
seminar.com/2004/539/539%20asha%20sarangi.html, (visited on February 12, 2017).
134 Contemprory Law Review [Vol. 1

the extremist point of view and urged for the different freedom and exploitation
as rhetoric of Aazadi- freedom of various kind. In India regional party leaders like
Shiv Sena, DMK, AIDMK and Telgudesham Party are very careful about
regional language and use only the regional language of their respective state for
making manifestos and speeches. Some agrarian reformists and leaders have
heavily bounded with class identity. For example, the renowned farmers’ leader
Mahinder Singh Tikait always followed a custom to sit with public and never
tried to have place on stage; he always tried to carry the symbols of the farmer
like Latti-Hukka, his way of taking and attitude was much appreciated by framers
as established by Pathos.
The Prime Minister of the present Government is a renowned for rhetoric in
his oration; he got the much success just because having the good convincing
aptitude and attracted the masses much larger in size compared to all his
competitors. His party presented him as the ambassador of the development on
the symbolization of Gujarat Model. They established logos in minds of voters
that he has better understanding of the public aspirations and always tried to touch
the emotions and sentiments of the gatherings through a lay-man approach.
Logically, he was presented to be the only leader who will successfully bring
about development and in turn employment for the youth.
Barack Obama raised himself to the stature of the president of United States
of America by his fine sense of rhetoric. However, compared to Barack Obama,
Modi has different rhetorical attire. Obama tried to convince people for a positive
energy of “yes we can,” but Modi`s rhetoric has to comparative notions. He
establishes relationship with the voter audience as he is one of them; he has
experience of poverty as he has lived a life of a common man- “a Chai Wala”
(Tea seller). In addition, he always compared his situation with Congressmen like
Rahul Gandhi and called them as king or prince- “Sahabjade or Rajkumar”.
Conclusion
All socio-political, literary discourse or day to day communication has the
elements of Rhetoric- logos, pathos, and ethos used as modes of convincing. In
Indian Parliament, judiciary and politics, there has been a versatile experience of
the use of rhetoric. Orators often start their presentation with couplets, poems and
Shayari to establish rapport with their audience and earn acceptance. Thus,
rhetorical discourse analysis opens special dimensions of understanding with
relation to public policy, law and governance. It unlocks several possibilities for
practicing lawyers to make their argument more appealing through the modes of
persuasion, and judges to see through the arguments of either attorney. As
Aristotle had set an expectation on citizens of state to have some understating of
rhetoric, modern voters too should be able to read through the alluring speeches
during election campaigns.

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 CONTEMPORARY APPROACHES TOWARDS RESTITUTION OF
CONJUGAL RIGHTS : A SOCIO-LEGAL STUDY
Debasree Debnath
ABSTRACT
With the passing of time the myth of stability and sacredness
of marriage bond is gradually wither away, and hence, the
increasing ratio of matrimonial litigation all over the country
confirms such situation. Matrimonial laws were evolved to
protect the rights of the spouses, but it is also true that law
cannot enter into the bedroom of individuals. However, the
personal law as a subject therefore, has to be understood in
the perspective of social conditions. With the development of
the society, law is also evolving which results in
independence of one’s personality, both in terms of social and
economy and law deals with the personal relationships
between the husband and the wife. Marriage under Hindu law
binds two heterosexuals together for life time, except certain
exceptional circumstances. Patriarchal mind-set of the
people, advance thinking, desire of self-determination--- all
these lead to withdraw from the society of the either party to
the marriage which may lead to breakdown of marriage.
Section 9 of the Hindu Marriage Act 1955 is vehemently used
by the spouses while exhibiting their personal choices and/ or
comforts and to prove the same before the Courts, they submit
numerous reasons to justify their claim. The objective of the
study is to address the issues which remain underneath the
real picture of the society and to deal with the fundamental
rights of the wife as an individual, which are violated in the
name of matrimonial right. This study also analyse the active
role played by the Indian Judiciary in identifying and
highlighting the problems of the issues related to the
restitution of conjugal rights.
-----------------------------------------------------------------------
Keywords : Marriage, conjugal rights, matrimonial home,
matrimonial rights, Fundamental Rights.
Introduction
It is said that marriages are made in heaven. The home becomes complete
when there is plenty of happiness and understanding between the spouses live
together, but it is very unfortunate that sometimes the cheerfulness and
understanding between the spouses did not stay for a long time and creates
violence among them. Sometimes the situations do not permit them to live
together and hence leads to the separation between the spouses, who once remain

 Assistant Professor, Law College Durgapur, Rajband, Rahul Foundation-Rajband (West Bengal), e-
[email protected]. The author is grateful to Prof. Vijender Kumar for his continues
guidance and supervision during the research on the paper.
136 Contemprory Law Review [Vol. 1

as a happy couple. In some cases the situation triggered the breakdown of

marriage.
Efforts should be made by the spouses to resolve the matrimonial disputes
among them and to bring peace in the matrimonial home. The Court proceedings
are made for the benefit of the litigating spouses and not allowing the litigating
spouses for taking revenge against each other. Therefore, invoking legal
proceeding before the Court of competent jurisdiction should be the last option
to be invoked by the souses. The marriage institution is a sacred in its nature and
the relationship between the spouses is sacrosanct, therefore the aim of marriage
is fulfilled only when the spouses respect the preservation of marriage and not
indulging in breaking of it.
The Hindu law draw certain lines and provides some remedies when the
spouses came with conflict in accordance with their matrimonial life. Section 9
of the Hindu Marriage Act 1955 is an example of such matrimonial remedy. It
provides substantive right1 to the spouses. The word restitution of conjugal rights
is made of three words, i.e., restitution, conjugal and matrimonial rights. Here,
restitution means to restore in previous position, conjugal means consortium,2
i.e., the conjugal partnership between the spouses. This right includes other rights
also, such as, collaboration and affection of the other spouse in every matrimonial
relation. In the words of Lord Reid, “jurisprudentially, consortium resembles
ownership for husband and wife who enjoy, a bundle of rights, some hardly
capable of precise definition.3
Concept of Hindu Marriage and Restitution of Conjugal Rights
Manu lay down, Wife is a divine institution given by Gods. One should not
think that one has obtained her by choice.4 Her unity (with her husband) is
established by the Vedas.5 A woman is half of her husband and completes him.6
Marriage is an essential sacrament for every Hindu and an institution which
is recognised by all civilised nations from the very early times. According to
Shastric Hindu law, marriage is a sacred bond between the husband and the wife
and is known as samskara or sacrament. The Vedic period affirmed the institution
of marriage as a sacred tie and at that time the women are given a high status. The
Dharmasastras divide the life of a Hindu into four asramas- Brahmacharya,
Grihastha, Vanaprastha and Sannyasa.7 During the lifetime of a Hindu he/she
remain in one of such asramas. Grihasthasrama, the life of a house-holder,
however, is praised by the Dharmasastras.8 One of the essentialities for valid
performance of Hindu marriage apart from Saptapadi was Kanya Dana, i.e.,
gifting the bride to the bridegroom. Section 7 of the Hindu Marriage Act 1955
postulates performance of certain customary rites or religious ceremonies of

1 A right, as life, liberty, or property, recognized for its own sake and as part of the natural legal order
of society. It is regarded as having authoritative standing and importance independent of man-made
laws.
2 Black Campbell Henry, BLACK’S LAW DICTIONARY, 4th ed. 1968, p. 374.
3 Best v. Sammuel (1952) 2 All ER 394.
4 Manu Smriti, IX 95; Paras Diwan, LAW OF MARRIAGE & DIVORCE, 6 th ed. 2011, p. 14.
5 Ibid, Manu Smriti, IX, 96.
6 Ibid, Manu Smriti, IX, 26.
7 MN Srinivasan, COMMENTARY ON HINDU LAW, 5th ed. 2011, p. 83.
8 Ibid.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 137
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either party thereto. Therefore, the necessities viz, Kanya Dana and Saptapadi
remain integral and unchanged for performance of a Hindu marriage, validly
solemnised.
Marriage is necessarily the social organization and the foundation of legal
rights and obligations. It is the source of every domestic comfort from infancy to
old age; it is necessary for the preservation and the well-being of our species; it
awakens and develops the best feelings of our nature; it is the source of important
legal rights and obligations; and, in its higher forms, it has tended to raise the
weaker half of the human race from a state of humiliating servitude.9 In Hindu
law, there were eight kinds of marriage and among them four were approved form
and four unapproved. The approved forms were brahma, daiva, arsha,
prajapatya. The unapproved forms were asura, gandharva, rakshasa and
paishacha. Any class of Hindus may marry either in brahma form or the asura
form. Thus, in Bhaoni v. Maharaj Singh10 the Court decided that a Brahman may
contract an asura marriage, and a Sudra may contract a brahma marriage.
According to statutes, marriage is not defined anywhere, however, the
personal laws are clear on the point. It is known to be a process where a man and
a woman undergo certain religious and customary practices as recognised by their
personal law and live with a status of husband and wife in the matrimonial home.
As stated in Grihyasutra, marriage is not a contract but a spiritual and eternal
union, a holy bond of unity. In A. Jayachandra v. Aneel Kaur11 it was held that
marriage brings about the union of two souls.
Sections 5 and 7 of the said Act provide the conditions12 of a valid Hindu
marriage and ceremonies13 to be observed by the parties to a valid Hindu
Marriage. In Gopal Krishna v. Mithlesh Kumari14 the Court held that, marriage
between the Hindus are sacrament and a holy union of man and woman, while
under Muslim law marriage is considered as a civil contract and all duties and
rights between the husband and the wife arise from the said contract. In Sumitra
Devi v. Bhikan Choudhary15 the Court decided that to consider a Hindu marriage
to be valid, there must be certain religious rites and customary ceremonies which
would have to be performed.

9 H.K. Saharay, THE HINDU LAW OF MARRIAGE AND STRIDHANA, 6 th ed. 2014, p. 21.
10 (1881) 3 All 738.
11 AIR 2005 SC 534.
12 “A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled,
namely: (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage,
neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been
subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years
and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the
degrees of prohibited relationship unless the custom or usage governing each of them permits of a
marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two.”
13 Section 7 (1), “A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that
is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.”
14 AIR 1979 All 316.
15 AIR 1985 SC 765.
138 Contemprory Law Review [Vol. 1

Marriage confers plethora of duties and obligations between the husband and
wife. It means after the marriage is solemnised both the husband and the wife
have some legal rights and remedies to each other. One of such remedy is
restitution of conjugal rights. Conjugal right16 is a matrimonial right where it
includes the right to each other’s society. The word ‘society’ means
companionship, cohabitation that is consortium. It is a positive relief which aim
to preserve the marriage. Restitution of conjugal rights is a matrimonial suit. It is
cognisable in the Family Court. The petition for restitution of conjugal rights is
brought to the Court by either of the spouses who lives separate from each other
without any reasonable cause. In such circumstances the Court may grant
restitution of conjugal rights under the Hindu Marriage Act 1955.
The basis of this concept lies in the dominating thinking of husband over
wife. In R. v. Jackson17 the Court held that under the concept of conjugal rights,
the husband cannot confiscate and confine his wife. In Udayachala Rao v. T.
Laxminarayan18 the Court decided that if the spouses made an agreement that
they will live separate after the solemnization of marriage it will be void and
hence cannot be put into the effect.
After the solemnization of marriage if either of the spouses has withdrawal
from the society of the other without any reasonable excuse the aggrieved party
may file a petition for restitution of conjugal rights. The words ‘withdrawal from
the society of other’ means leaving behind all the conjugal relationship, such as
denial to live together, rejection of marital obligations and intercourse.
Animus and factum are two essential elements for withdrawal from the
society by the husband or the wife. It connotes that the spouse who has withdrawn
from the society of the other has an intention to put an end to his/her conjugal
relation. Only intention to leave the society of the other spouse did not leads to
desertion except such intention is coupled with factum of detachment by the
withdrawing spouse. In Seema v. Om Prakash19 the Court decided that the first
aspect means that the spouse who has withdrawn has no rational justification to
leave the society of the petitioner. However, if either of the spouses makes the
circumstance difficult to reside with him/her; he/she can withdraw from the
society of other.
Changing Phase of Marriage
The concept of marriage is changing with the passing of time. Earlier, when
the joint family exists there is absence of the concept of restitution of conjugal
rights. The Urbanization in society changes the structure of the family. Previously
the marriage was considered as a sacred bond but due to the changing pattern of
the society it now becomes a social contract.
Due to nuclear family and individual independency every individual are
doing his/her job in respective areas and places. Hence, after the marriage, India
being a patriarchal country tries to dominate over the wife and want to bind the
wife to leave her job and to stay with the husband where he resides and work. It

16 Black Campbell Henry, BLACK’S LAW DICTIONARY, 4th ed. 1968, p. 374.
17 (1891) QB 671.
18 AIR 2004 NOC 257 (AP) (DB).
19 AIR 2007 NOC 2518 (MP).
2017] Contemporary approaches towards Restitution of Conjugal Rights: 139
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is only this situation which give birth to this concept of restitution of conjugal
rights, because due to live apart from each other after marriage one party may
claim his/her marital right, which includes the right to live together and
cohabitation.
With the passing of time the perception of marriage has suffered distinctive
changes and much negativity. This put rise the conflict between the two spouses
which lead to file a petition for restitution of conjugal rights, i.e., to restore the
previous position of marriage. Much distress has been witnessed in the social
relationships between husband and wife.20
The suit for restitution of conjugal rights is filed by the husband against his
wife or by the wife against her husband. As the word restitution of conjugal rights
itself depicts it’s meaning as to restore the previous position, here also if any of
the spouses withdraw from their society without any reasonable ground than the
Court order the party to return to the previous position or upon the factual
situation of each and every case. In Dadaji v. Rukmabai21 the Court held that
where the marriage is once completed, if either party refuses to live with the other,
the remedy is by a suit for restitution of conjugal rights.
In Sohan Lal v. Smt. Pratibha Mehra22 it has been observed that where
restitution of conjugal rights between parties to marriage has elapsed for a period
of one year and respondent did not honour the decree passed under Section 9 of
the Hindu Marriage Act 1955 after passing decree for restitution of conjugal
rights, the husband was entitled to divorce under Section 13 (1-A) of the Act.
Evolving Concept of Matrimonial Home
India being a country of various tradition and religion includes various
cultures and in all legal systems after marriage, the wife comes to the husband’s
house. Earlier, this is called the matrimonial home. After the marriage has been
solemnised preference is given to the husband to provide shelter to his wife.
However, due to the changing pace of time the concept of matrimonial home is
changing day-by-day. Now-a-days, the women are also become self-defendant
and as a result sometimes they live away from the husband. So, it is not possible
in every marriage that the wife lives with her husband. For that reason, it is not
necessary to live in a common residence to be called as a matrimonial home. In
Sitanath v. Haimbutty23 the Court held that, it is the obligation on the part of the
wife to submit herself devotedly to the authority of her husband. The Court also
decided that, it is the responsibility of the wife to stay with her husband under the
same roof.
The Courts are also given many judicial responses accepting the privileges
of the husband to make a decision to institute the matrimonial home. In Tirath
Kaur v. Kirpal Singh24 the Court did not allowed the petition of the wife as she
submitted to the Court that she was prepared to hold the marriage tie but she was

20 Nawaz Khan, Nuzhat Rizvi, ‘Urbanization and its Effect on Joint Family System in India’, Vol. 3,
Issue 2 International Journal on recent and Innovation Trends in Computing and Communication,
2015, p. 154.
21 (1886) 10 Bom 301.
22 AIR 2007 NOC 915 Raj.
23 (1875) 24 WR 377.
24 AIR 1964 Punj 28.
140 Contemprory Law Review [Vol. 1

not ready to leave her employment. In this case the Court ruled in favour of the
husband and held that as the wife was not ready to terminate her job, therefore it
amounts to desertion. Thus it would give the right to the husband to file a petition
for restitution of conjugal rights.
In 1973, the Punjab and Haryana High Court in Surinder Kaur v. Gardeep
Singh25 held that, it is the duty of the wife to attend, to be obedient and to respect
the husband. The Court further decides that, the wife has a duty to reside with her
husband wherever he chooses to reside.
Modern Concept of Matrimonial Home
With the changing phase of time the notion of matrimonial home is shifting
to cooperate with the modern thought of equality. Currently the women are
entitled to hold on their job away from her husband’s residence, that is the wife
can also live away from her husband after the marriage was solemnised.
This modern perception is brought by the Courts in the year 1975 for the first
time in Praveenben v. Sureshbhai.26 In this case the Court held that, in the
contemporary viewpoint, both the spouses are uniformly independent to get an
employment and retain it. Since the husband and the wife had a mutual
understanding between them with regard to the place of the job, it cannot be
contended that the wife had deserted the husband.
Again in N. R. Radhakrishna v. Dhanalakshmi27 the Court decided that where
the income of the wife was sufficient to maintain her own life and the child, the
conception of obedience towards her husband and to reside with him under the
same roof in all situations is not appropriate.
Historical Evolution of Conjugal Rights under Hindu Law
The concept of restitution of conjugal rights is not derived from the
customary practices or from the Dharmashastras or Vedas. The notion of
restitution of conjugal rights was not originated in India. This idea came into
being from England. England adopts this perception from Jewish law. Previously
in England the matrimonial causes were perceived and decided by ecclesiastical
Courts. At that time the King’s Courts were gave jurisdiction by the English
statutes and these Courts settled the disputes based on the principles of
ecclesiastical law. Earlier the guilty spouse was punished by the ecclesiastical
Courts and thus the remedy for restitution of conjugal rights was executed.
Restitution of Conjugal Rights : A Socio-Legal Perspective
The concept of restitution of conjugal rights is not derived from the
customary practices or from the Dharmashastras or Vedas. The Vedas recognised
the necessity for a son relieves his father from hell called “Puth” resulted in the
desire for a male offspring for the continuance of the family and for the
performance of funeral rites and offerings.28 Consequently, the sacredness of
marriage was recognised. The Hindu law in India directed to the married couple

25 AIR 1973 P & H 134.

26 AIR 1975 Guj 69.
27 AIR 1975 Mad 331.
28 Priyanka Priyadarshini, ‘The Futility of the Provision of Restitution of Conjugal Rights (As Under
Hindu Marriage Act 1955) in the Present Scenario’, Vol. 1 Issue 3 International Journal for Legal
Developments and Allied Issues, 2015, p. 101.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 141
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to stay together and to have the society of each other. It provides certain rights
and duties to both the spouses after the marriage was solemnised.
However, due to the difficulties which sometimes arises after the marriage it
become necessary to enact some remedy so as to the married couple live their life
happily. One of the important necessities of marriage is that the parties will live
together. However, there are no such laws and legislations which compel the
married couple to live together against their whims and fancies. Human existence
is much more important than law. But, then also there remain the concept of
‘necessity knows no law.’ It implies that, when there is a dare need of doing
something and it cannot be possible without illegal means it is permitted, except
prohibited by law.
The concept of marriage is confining between two persons; but it unites two
families. People’s emotions, happiness, respect for each other, everything is
included in the idea of marriage. Therefore, whenever any petition is filed before
the Court it must try to give remedies to save the marriage bond.
The law of marriage originally treated the wife as the property of the husband
and she is controlled by her husband. At that time the nature of the marriage
institution was similar to a contract, where dissolution in terms of property and
offences relating to marriage was recognised. However due to the changing pace
of time the right of individuality come into picture. Now-a-days, the wives also
ask for the equal rights in the family. They become socially and economically
independent.
The procedure for restitution of conjugal rights recognised in England by the
Ecclesiastical Courts was introduced in our country by the British rulers at least
from the time of the decision in Moonshee Buzloor v. Shumsoonissa Begum29
considering such actions as a species of suits for specific performance.30
Currently, only the mutual bonding between the spouses and by reduction of
the subordinate position can only bind the marital relationship, but due to the
patriarchal nature of the society, the husbands never want to give equal rights to
the wives.
The petition for restitution of conjugal rights is filed by one of the spouses
who feel that the other has left him/her or withdrawal himself/herself from the
society of the other without any reasonable cause. The need for this remedy
emerged from the changing mind set and because of the transformation of the
society from joint to nuclear family. Now-a-days, the controversy between the
parties, difficulty to accept the ego battle etc. of the spouses leads to increase the
ratio of petition of restitution of conjugal rights.
At present in some of the cases it is observed that this right is used as a legal
strategy by the Hindu husbands to refuse the maintenance to their wives. In such
cases the husbands take the advantage of their own wrongs committed to the wife.
An illustration can describe this situation more appropriately. For example, the
wife leaves the matrimonial home due to the cruelty and torture inflicted by the
husband and the other members, but the husband file a petition to the Court by

29 (1867) II, MIA 551.

30 Vijender Kumar (rev.), John D. Mayne, TREATISE ON HINDU LAW & USAGE, 17 th ed. 2014, pp.
209-210.
142 Contemprory Law Review [Vol. 1

writing that he wants to live with the wife but she deserted him and thus the wife
is not entitled to get the maintenance. In Shantaram Dinkar Karnik v. Malti
Shantaram Karnik31 the husband files a petition of restitution of conjugal rights
against the wife. But the Court found that, it is the husband and the other
matrimonial members who ill-treated with the wife and for that reason she is
bound to leave the matrimonial home. In such situations the husband cannot take
the advantage of his own wrongs and hence is not permitted by the Court of law.
Similarly, in Bai Jivi v. Narsingh32 when a wife pleads for restitution of
conjugal rights the Court may be in a position to judge whether this relief should
be granted or not against the husband and if so on what conditions.
Due to the ego clash and wish for individual independency the concept of
ideal marriage comes into trouble as in ideal marriage the concept is to live
together and to cohabit.
To file a petition of restitution of conjugal rights the following three
conditions must be satisfied:
(i) The respondent has withdrawn from the society of the petitioner
without any reasonable excuse;
(ii) The Court is satisfied about the truth of the statement made in such a
petition; and
(iii) There is no legal ground why the relief should not be granted.
Matrimonial Rights
Marriage bestows significant rights and requires equivalent duties and
responsibility equally on both the spouses. These rights are called the matrimonial
rights, which both the parties have to each other. Conjugal right is a matrimonial
right. The first condition for matrimonial remedy is the validity or subsistence of
the marital knot. It means if either of the spouses is not legally married or the
marriage was not subsisting at the time of the petition, no remedy will be given
under this section. For example, in Smt. Ranjana Vinod Kumar Kejriwal v. Vinod
Kumar Kejriwal33 the husband was already married earlier, as a result the
subsequent marriage is considered as a void marriage; hence under Section 9 of
the Hindu Marriage Act 1955 no remedy will be given to the husband.
The matrimonial law incorporates the right of consortium of the other spouse
and so when either of the spouses has deserted the other with no reasonable and
satisfactory cause or just excuse, the aggrieved spouse may enforce restitution of
the society through Court. In Annie Thomas v. Pathrose34 Paripoornan, J.
elaborates the meaning of reasonable excuse. According to him, ‘reasonable
excuse’ or ‘rational excuse’ depends on the factuality and conditions of each and
every case. It has to be sufficiently weighty as well as convincing. It should be
more than a mere whim and it is not necessary to fall under one of the grounds as
mentioned under Section 33 of The Indian Divorce Act 1869. Even it is
accomplished of distinction from the matrimonial offence envisaged by Section
33 of the Act. All the same, “reasonable excuse” means that it should be in accord

31 AIR 1964 Bom 83.

32 (1927) 51 Bom 329.
33 AIR 1997 Bom 380.
34 (1988) 2 KLT 237 para 7 (Ker).
2017] Contemporary approaches towards Restitution of Conjugal Rights: 143
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with reason, just and fair, in every factual situations of the case. In Gurdev Kaur
v. Sarwan Singh35 it was observed that what would constitute ‘reasonable cause’
would differ in every case. The Court also decided that in the changed social
conditions it would also have to be applied as they obtained today.
The matrimonial rights under Hindu can be divided into various heads, such
as, maintenance, property rights etc. Maintenance is defined under Section 3(b)
of Hindu Adoptions and Maintenance Act 1956 as “provision for food, clothing,
residence, education and medical attendance and treatment.”36 However, it
includes reasonable expenses of the marriage in case of an unmarried daughter.37
In most systems of law, the position of wife in her husband’s household and to
maintain by her husband is recognised until the marital knot exists and the wife
stays loyal to her husband. Nevertheless, after dissolution of marriage also the
obligation to maintain the wife exists.
A woman is not entitled to maintenance when she gets married to a
previously wedded man whose marriage is in subsistence.38According to modern
Hindu law a Hindu wife is permitted to be maintained by her husband for
lifetime.39 A wife can also file a petition under Section 125 of Cr.P.C. 1973 for
maintenance. It is recognised to provide safeguard the interest of the parties at
marriage.
The modern Hindu law did not permit maintenance to a wife who has
changed her religion and has ceased to be a Hindu. But an adulterated wife can
claim allowance from her husband who lives with her husband.
Again a married Hindu woman has her exclusive right on property and
maintenance if she is not capable to maintain herself and remain chaste after
separation from her husband. In Mangal Mal v. Puni Devi40 the Court held that,
the concept of maintenance to wife must include the condition of residence. It
must include the basic amenities of life. However, in Ram Bai v. Yadunandan41
the Court decided that a Hindu female could be in possession of a joint family
property in lieu of maintenance.
Impediments/Bars to Matrimonial Remedy
Under the matrimonial law divorce is one of the modes to punish the guilty
party. It is a matrimonial offence; hence the guilty party becomes inappropriate
for consortium. The offence must be one that is recognised as a ground of divorce,
like adultery, cruelty or desertion. This implies the fault theory of divorce. The
innocent persons can only knock the door of justice. This theory implies that, the
party who come for justice to the Court must come with clean hands. The beauty
of this principle is that if one of the parties is a sinner the marriage may be
dissolve but if both are sinners then they are condemned to continue to live in
sin.42

35 AIR 1959 Punj 162.

36 Section 3(b), the Hindu Adoptions and Maintenance Act 1956.
37 Thulasi v. Raghavan AIR 1985 Ker 20.
38 Abbayolla M. Subba Reddy v. Padmamma AIR 1999 A.P. 19; Suresh Khullar v. Vijay Khullar AIR
2002 Del. 373.
39 Section 18(1), the Hindu Adoptions and Maintenance Act 1956.
40 AIR 1996 SC 172.
41 AIR 1969 SC 1118.
42 Paras Diwan, LAW OF MARRIAGE AND DIVORCE, 6th ed. 2011 p. 617.
144 Contemprory Law Review [Vol. 1

Earlier, in England there has been a long drawn controversy to either do away
with these bars or at least modify these bars. With the coming up of irretrievable
breakdown of marriage these bars were abolished, but at the same time some new
bars were introduced.43 With the enactment of the Hindu Marriage Act 1955 these
bars to matrimonial relief was enacted. These bars to matrimonial reliefs are
provided under Section 23 of the Hindu Marriage Act 1955.The Court decided
that without satisfying the requirements under Section 23 of the Hindu Marriage
Act 1955 and granting an ex parte decree was not proper.
In Vijay Lakshmi Devi v. Gautam Mishra44 the petition was filed by the
husband for restitution of conjugal rights. Along with this he also pleads for a
decree of divorce on the ground of desertion. In this case the wife did not come
to the Court and remain absent, i.e., here the wife remains ex parte. The Court
held that, the fact that the wife remains ex parte would not absolve the husband
to discharge onus for making out a case for divorce.
Section 23 of the Hindu Marriage Act 1955 provides that, there are two kinds
of matrimonial impediments or bars to matrimonial remedy. They are-
(i) Absolute impediments; and
(ii) Ancillary impediments.
Absolute Impediments/Bars
In every marriage there are certain conditions are rituals, the non-fulfilment
of which make the marriage null and void. In absolute impediments marriage
becomes void. For example, marriage between the parties who belongs to sapinda
relationship and there is no customary rule that the parties can marry to each
other. It is an absolute impediment. It means the marriage is itself barred by the
legal provisions.
In such marriages the parties remain free to marry another person and no
legal consequence will follow from the previous marriage as that marriage was
void ab initio.
Ancillary Impediments or Bars
This bar can be removed by the parties to marriage. For e.g., during the time
of marriage ceremony if wife was found to be pregnant and after few years
husband files a petition for restitution of conjugal rights, in such circumstances
husband could not file the petition within the time limit of one year, that means
he gives his consent to the marriage and accept the marriage as it is. Therefore,
ancillary bar is removable. In such marriages the spouses become regular party
to the marriage.
Restitution of Conjugal Rights under Hindu Law
Hindu law connotes that after marriage the husband and the wife become one.
According to Hindu sages marriage completes a man. Marriage implies the right
to consortium and a corresponding duty towards each other. However, this right
is not legally enforceable. If at any point of time either of the spouses withdraws
from the society of the other without any reasonable cause, the only remedy given
to the aggrieved spouse is that he/she can file a petition for restitution of conjugal
rights. In India this redress was available from the time of British rule. In India

43 Section 5 of the Matrimonial Causes Act 1973.

44 AIR 2010 Pat 56.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 145
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by attaching the respondent’s property a decree for restitution of conjugal rights
can be executed by the Court.45
Essential Requisite for Restitution of Conjugal Rights
The first and foremost pre-requisite for filing a petition for restitution of
conjugal rights is a valid marriage. It means no petition under Section 9 of the
Hindu Marriage Act 1955 can be filed in the Court when the marriage itself is
disputed. Thus where the parties are not legally married or the marriage was not
subsisting at the time of petition; the question of granting for decree of restitution
of conjugal rights does not arise.46 In Laxman Singh v. Kesar Bai47 the Court held
that it is for the petitioner to prove the validity of the marriage if it is disputed by
the respondent. Only when the marriage between the parties is legal the
application for restitution of conjugal rights is permitted by the Court. An
application for restitution of conjugal rights can be entertained only when the
marriage between the parties is legal. Where the parties are not legally married or
the marriage was not subsisting at the time of the petition, the question of granting
of decree for restitution could not arise.48
In Santosh Kumar Pandey v. Ananya Pandey49 the Court held that, the parties
are entitled to maintain a petition under Section 9 when the parties do not dispute
the very existence of marriage between them, otherwise the Court may reject such
application.50
In Mallappa Gurulingappa Kameri v. Neelawwa Malappa Kameri51 the
Court decided that the husband cannot file a petition under Section 9 of the Hindu
Marriage Act 1955who has another wife living at the same time.
In the case of Chitralekha Shibu Kunju v. Shibu Kunju52 another requisite for
restitution of conjugal rights was decided by the Court. According to the verdict,
where the spouses to the marital knot were not a Hindu, it was not considered as
legal marriage under Section 5 of the Hindu Marriage Act 1955. Therefore, no
relief could be sought under this Act.
Again in Sanjeev Kumar v. Priti Kumari53 the Court decided that in a petition
for restitution where the defendant denies the marriage and the plaintiff is not
able to substantiate the marriage, the same is liable to be dismissed.
The Court of competent jurisdiction is the last essential for filing a suit under
Section 9 of the Hindu Marriage Act 1955. It means a Court where cases are heard
and that has the authority to do a certain act or hear a certain dispute.54 Jurisdiction
refers to a particular geographic area to which a Court has competency to decide
the case laws coming before it or it may also be defined as a Court to which a

45 Order 21, Rule 32, Civil Procedure Code 1908.

46 Parbia Ram v. Thopali AIR 1966 HP 20.
47 AIR 1966 MP 166.
48 Jiva Magan v. Bai Jethi AIR 1941 Bom 535; Ravinder Kumar v. Kamal Kanta (1976) HLR 380; Inder
Yash v. Manjeet Kaur (1980) HLR 251.
49 AIR 2013 Chh 95.
50 Satyabhama Pradhan v. Sidhartha Sahoo AIR 2005 Ori 177.
51 AIR1969 Kant 59.
52 (1998) II DMC 454 (Bom-DB).
53 AIR 2011 Jhar 1.
54 TRANSLEGAL DICTIONARY, available at https://www.translegal.com/legal-english-
dictionary/court-of-competent-jurisdiction, (visited on December 28, 2016).
146 Contemprory Law Review [Vol. 1

particular case can be filed. It is the inherent authority of a Court to hear and to
declare a judgement. In the matter of matrimonial cases the Family Court of every
State has the jurisdiction to try such cases comes before it.
Meaning of Reasonable Excuse
The term reasonable excuse is not defined anywhere. It depends upon the
factual circumstances of each and every case. Whatsoever is the reason, the major
thing which needs to consider here is, in every suit there exists certain grounds
based upon which the suit for restitution of conjugal rights is filed in the Court.
In filing the suit for restitution of conjugal rights no spouses are allowed to take
advantage of their own wrongs. In Bejoy v. Aloka55 the Court held that, in
response to the suit for restitution of conjugal rights, the term ‘excuse’ is not
limited to the grounds for divorce or nullity of marriage.
Law confers equal status and equal rights to both the spouses, even one of
the spouses is working and another spouse is not working, they remain on equal
footing. Therefore, the legislator very wisely used the loose term reasonable
excuse and did not contain it in water-tide containment. Reasonable excuse
contains educational, social, economic background etc. of each and every family.
The excuse may be simple or serious in nature, depends on each and every case.
The conditions which are given under Sections 12 and 13 of the Hindu
Marriage Act 1955 must be fulfilled to use the term reasonable ground. In the
issue of reasonable excuse the matter is not similar with reasonable ground. So,
the term reasonable excuse is more appropriate and suitable.
In Kanthimathi v. Parameswarayyar56 the Court decided that, the wife cannot
desert the husband if the parents of the husband are not creating any such
circumstances which are provocative in nature for the wife.
In Poswal v. Parkashwati57 the Court held that, if it was proved that the
husband sought divorce on false allegations and in real he deserted the wife, he
was not permitted to a relaxation under Section 9 of the Hindu Marriage Act 1955.
The term reasonable excuse has no particular meaning and it is interpreted
differently in many ways depending upon the fact of each and every case. In
Nalini v. Radhakrishnan58 the Court decided that, in the situation where, the wife
is not agreeing to reside with his parent’s house, but she is ready to live with her
husband in his working place, the husband cannot allege this as a ground for
restitution of conjugal rights.
In R. Prakash v. Sneh Lata59 the Court find it justifiable on the part of the
wife if the wife refuses to leave her job and reside with the husband who was
living in a different place. The Court expressly emphasised the concept of
complete equality of the spouses in this regard.
In Rabindranath v. Promila60 the Court decided that, in the situation where,
the wife who is habitually nagged and ill-treated by his mother has a reasonable
excuse to withdraw from the husband, whose duty is to protect her. In such

55 AIR 1969 Cal 477 (DB).

56 AIR 1974 Ker 124.
57 1980 HLR 189.
58 (1988) 2 HLR 408 (Ker).
59 AIR 2001 Raj 269.
60 AIR 1979 Ori 85.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 147
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situations the husband cannot file a petition for restitution of conjugal rights
against his wife.
Reasonable excuse can be of other grounds also. Like wife can desert
husband if he is impotent and it is considered as a reasonable excuse for
withdrawal from the society of the husband.61 Similar verdict was decided by the
Court in Khageshwar v. Aduti Karnani.62
However, in Pushpa Rani v. Vijay Pal Singh63 the Court decided that, the
allegations made by the wife that the husband was a drunkard and indulged in
gambling was held to be a feeble attempt made by her to establish cruelty as a
defence for restitution of conjugal rights.
In Kiran Bala v. Sharan Kumar64 the Court decided that the wife had
sufficient cause for living separately from the husband where he was living with
the widow of his brother. In such circumstances the husband cannot file a suit for
restitution of conjugal rights.
However, on certain grounds the Court may refuse to pass a decree for
restitution of Conjugal Rights. Such as, in Bai Premkuvar v. Bhika65 the husband
had loathsome sickness, for example leprosy or syphilis. In this situation, the
petition for restitution of conjugal rights was refused by the Court against the
wife. Again in Paigi v. Sheonarain66 the decree for restitution of conjugal rights
was refused by the Court on the ground that the husband adopts another religion.
Grounds for Reasonable Excuse
According to the various verdicts given by the Court the following
circumstances constitute reasonable excuse to operate like a defence in such
area:67
(i) In any marital cause if it is a ground for relief
(ii) In marital misconduct which did not constitute a ground of marital cause,
if adequately serious and grave
(iii) If it is impracticable for the petitioner to reside with the respondent for
any action and behaviour of the respondent.
Withdrawal from the Society
Legitimate marriage vows rights and obligation to both the husband and the
wife to live together and abide by the matrimonial law. The term “withdrawal
from the society” denotes to put an end to the conjugal relationship, such as denial
to cohabit, rejection to confer marital responsibilities. Thus it can be said that,
withdrawal from the society means to withdraw from the totality of the marital
responsibilities between the spouses. For filing the petition for restitution of
conjugal rights there must be total repudiation of cohabitation and there is a
desertion by one of the spouses from the other’s society. At this point society
signifies the equivalent meaning as consortium.

61 Jagdish Lal v. Smt. Shyama Madan AIR 1966 All 1950.

62 AIR 1967 Ori 80.
63 AIR 1994 All 216.
64 2002 (1) HLR 235 (P & H).
65 (1868) 5 Bom HCAC 209.
66 (1886) 8 All 78.
67 ‘Constitutionality of Restitution of Conjugal Rights’, lawlex.org, available at http://lawlex.org/lex-
bulletin/constitutionality-of-restitution-of-conjugal-rights/1580, (visited on December 31, 2016).
148 Contemprory Law Review [Vol. 1

In Venugopal v. Laxmi68 the Court held that, a petition for restitution of

conjugal rights would lie if the fact of the case established that the spouses have
not cohabit after the marriage and the intention of the parties is not to cohabit.
However, in Smith v. Smith69 and Wilkies v. Wilkies70 the Court observed that,
where the parties are living together in the same house, but one of the spouses
rejects to live a conjugal life, it would amount to withdrawal from the society. In
Mouneer v. Mouneer,71 the Court held that, refusal to matrimonial attachment due
to certain problems does not lead to withdrawal from the society.
Burden of Proof
The spouse who files a suit in the Court for restitution of conjugal rights,
he/she has the burden to prove that the other party deserted him/her, which means
the spouse who alleges reasonable excuse has to prove it. In Smt. Jyothi Pai v. P
N. Pratap Kumar Pai72 the Court held that, the spouse who files a petition to the
Court has the burden to prove the allegation. However, if the petitioner can point
out the firm grounds concerning the withdrawal from the society of another
without reasonable excuse, in such situation the burden shifts on the other spouse
to establish rational justification, if any, for withdrawal of society.
The husband who is guilty of mental cruelty cannot ask for restitution of
conjugal rights. The physical assault, violence or torture is not essential to prove
in such situations.73
Judicial Approach on Conjugal Rights
The concept of restitution of conjugal rights is not a new idea. This concept
is contained under Section 9 of the Hindu Marriage Act 1955. A decade ago, there
arose a controversy with respect to the constitutional validity of restitution of
conjugal rights. This topic is itself very controversial as with the changing pattern
of life women are also become self-independent. Marriage did not seize one’s
fundamental rights given under the Constitution of India; therefore, after the
solemnization of marriage also the spouses have their rights. There are many
verdicts given by the Supreme Court and various High Courts which discussed
this issue several times. Even its constitutionality has been challenged before the
Apex Court.
In Mulla’s “Hindu Law”, it is stated in paragraph 552 that a wife’s first duty
to her husband is to submit herself obediently to his authority, and to remain
under his roof and protection. She is not, therefore, entitled to separate residence
or maintenance, unless she proves that, by reason of his misconduct or by his
refusal to maintain her in his own place of residence, or for other justifying cause,
she is compelled to live apart from him.74
Restitution of Conjugal Rights and The Hindu Marriage Act 1955
The Hindu Marriage Act 1955 came into force on May 18, 1955. This Act
amends as well as codifies the matrimonial law among Hindus. The provision for

68 AIR 1936 Mad 288.

69 (1939) 4 All ER 533.
70 (1943) 1 All ER 433.
71 (1972) 1 All ER 289.
72 AIR 1987 Kar. 241.
73 S. Jaya Kumari v. S. Krishna Nair AIR 1995 Ker 139 (DB).
74 Satyajeet A Desai (rev.) D.F. Mulla, HINDU LAW, 22nd ed. 2016 pp. 738-739, 865.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 149
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restitution of conjugal rights is also included under Section 9 of the Hindu
Marriage Act 1955. It means to restore the previous status as it is. Section 9 of
the Hindu Marriage Act 1955 grants statutory recognition to both the couples to
have consortium right to each other. Therefore, if the husband or the wife leaving
each other without any just and reasonable cause would become a ground for
apply a suit for restitution of conjugal rights.
However, Section 9 of the Hindu Marriage Act 1955 makes it clear that even
when the conditions stated in that provision are fulfilled it is on the discretionary
power of the Judges of the Court whether to pass a verdict for restitution of
conjugal rights or not. It is upon the Court to examine each and every aspect of
the entire acts of the spouses. Upon considering all the facts and issues of the case
the Court will make a decision whether such relief is justified or not on the part
of the petitioner or whether such decision is irrational or arbitrary in any
appropriate case against the respondent. In Alopbai v. Ramphal75 the Court
observed that a suit for restitution of conjugal rights would be unjustified where
the circumstances disclose that there is no possibility of the parties living together
even in a state of happiness.
Constitutionality of Restitution of Conjugal Rights and Judicial Approach
In T. Sareetha v. Venkata Subbaiah76 the Andhra Pradesh High Court struck
down Section 9 of the Hindu Marriage Act 1955 as unconstitutional. The single
Bench of Choudhury J. has struck down this section on the reason that it violates
individual’s right to privacy. The Court observed that this section was brutal and
inhuman in nature which violates the right to privacy and human dignity
guaranteed by Article 21 of the Constitution of India and hence void. It denies the
woman her free choice of whether, when and how her body is to become the
vehicle for the procreation of another human being77 and hence is violative of the
right to the privacy guaranteed by Article 21 of the Constitution of India. The suit
for restitution of conjugal rights seizes the right of a woman to take her most
intimate decisions of her own life.
Article 14 of the Constitution of India provides equal right to both the man
and woman and there is no distinction between the two. The decision given in T.
Sareetha’s case illustrate that the provision for restitution of conjugal rights
violates Article 14 of the Constitution of India as it did not provide equal
treatment to man and woman. He further added that in actual fact, the remedy
works only for the benefit of husbands and is oppressive to woman.
Choudhary J. observed that “A decree of restitution of conjugal rights
constitutes the grossest form of violation of an individual’s right to privacy. It
denies the woman her free choice whether, when and how her body is to become
the vehicle for the procreation of another human being.”78
In addition, the judge also added that the concept of restitution of conjugal
rights did not uphold any justifiable public purpose which benefits the whole

75 1962 M.P.L.J. 192.

76 AIR 1983 AP 356.
77 T. Sareetha v. Venkata Subbaiah AIR 1983 AP 356, available at,
https://indiankanoon.org/doc/1987982/, (visited on January 12, 2017).
78 Ibid.
150 Contemprory Law Review [Vol. 1

community and hence it is unjustifiable and was violative of Article 14 of the

Constitution of India.
Right to Equality and Concept of Restitution of Conjugal Rights
Equality is one of the glorious keystones of Indian democracy.79 The Court
in Ashutosh Gupta v. State of Rajasthan80 decided that, the doctrine of equality
before law is an essential outcome of Rule of Law which pervades the Indian
Constitution.
Right to Life and Personal Liberty : Concept of Restitution of Conjugal
Rights
Article 21 of the Constitution of India guaranteed right to life and personal
liberty against the State act. It provides, “No person shall be deprived of his life
and personal liberty except according to procedure established by law.”81 In
Mannv. People of Illinois82 Field J., observed that, the word life is broader in
sense and signify more than mere animal existence. Again in Francis Coralie v.
Union Territory of Delhi83 the same view was taken by the Court and decided
that, right to live is not limited only to animal existence. It further indicates
something more than just physical survival. It take account of the right to live
with human dignity and all that goes along with it, that is to say, the bare amenities
of life, for example, sufficient food, clothes, protection, facilities for education
and communicate ourselves in varied forms.
Right to Privacy and Restitution of Conjugal Rights
The concept of right to privacy directly flows from Article 21 of the
Constitution of India. The suit for restitution of conjugal rights violates such right.
The Court in Govind v. State of MP.84 decided that, the personal intimacies are
included in the concept of right to privacy. It itself includes the right to be let
alone. Hence, the decree for restitution of conjugal rights snatches away the right
to privacy protected under the Constitution of India.
Freedom to Settle Anywhere and to Practice any Profession
There are instances under the restitution of conjugal rights petition where the
husband wants the wife to leave the job and settled with him in his place. In these
cases the freedom of the wife under Article 19 (1) (e) and Article 19 (1) (g) of the
Constitution were violated because as an individual the wife has also her freedom
to settle anywhere and to practice any profession. In Shanti Nigam v. Ramesh
Nigam85 and Pravinaben v. Suresh bhai86 the Allahabad and Gujarat High Court
held that mere refusal to resign the job is not adequate enough for getting a suit
for restitution of conjugal rights.
Right Against Exploitation and Restitution of Conjugal Rights
Conjugal rights connote two ideas, (a) “the right which husband and wife
have to each other’s society and (b) “marital intercourse”.87 Wife being a woman

79 Indra Sawhney v. Union of India AIR 1993 SC 477.

80 AIR 2002 SC 1533.
81 Article 21 of the Constitution of India.
82 94 US 113.
83 AIR 1978 SC 597.
84 AIR 1975 SC 1378.
85 (1971) ALJ 67.
86 AIR 1975 Guj 69.
87 Earl Jowitt, DICTIONARY OF ENGLISH LAW, 2nd ed. 1977, p. 453.
2017] Contemporary approaches towards Restitution of Conjugal Rights: 151
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is always dominated by the man and is likely to be more affected by the decree
for restitution of conjugal rights than man.
‘Traffic in Human Beings’ and ‘beggar’ and other similar forms of forced
labour is prohibited under the Constitution of India.88 Under the obligation of the
restitution of conjugal rights the wife is also forced to sexual intercourse with her
husband, which violates Article 23 of the Constitution of India. This act can cause
mental breakdown of the wife which is harmful for her mental as well as physical
health. In India there is no remedy available in such situation which gives
pleasure to the wife. The topic which is so closely relates to her body along with
her life and which is very significant to her, a suit of restitution completely
ignores her wishes, hence ultra vires the Article 21 and other provisions of the
Constitution.
However, the Delhi High Court in Harvinder Kaur v. Harmander Singh89 the
learned single judge, Rohatgi J. took the converse view and held to the contrary.
In this particular case the Court observed that Section 9 was not violative of
Article 14 and 21 of the Constitution. The Court held that the leading idea behind
this relief is preservation of marriage. One of the components which constitute
consortium is sexual intercourse, but is not the summum bonum.90
The controversy forged by these two diagonally opposite viewpoints was
regulated by the Supreme Court in Saroj Rani v. Suudarshan Kumar Chaddha.91
In this verdict Sabyasachi Mukherji, J. of the Apex Court held that “In India
conjugal rights i.e. right of the husband or the wife to the society of the other
spouse is not merely creature of the statute. Such a right is inherent in the very
institution of marriage itself. There are sufficient safeguards in Section 9 of the
Hindu Marriage Act to prevent it from being a tyranny.”92
In this particular case the constitutional validity of Section 9 was upheld and
decided that it was not violative of Articles 14 and 21 of the Constitution of India.
The leading idea of Section 9 was to preserve the marriage institution. The Court
further explained that “The object of the restitution decree is to bring about
cohabitation between the estranged parties so that they can live together in the
matrimonial home in amity.”93
From the above mentioned views one thing is apparent that both the Judges
overlook the primary characteristic of family, i.e., while the understanding
between the spouses are broken, no remedy will help. The Court before broke
such union between the husband and the wife should take into consideration
utmost fairness and least amount of bitterness and humiliation.
Execution of Restitution of Conjugal Rights Decree
Under Rules 32 and 33, Order 21 of the Code of Civil Procedure 1908,
pecuniary compulsion can still be put into effect for the implementation of the

88 Article 23 of the Constitution of India.

89 AIR 1984 Del 66.
90 The highest good, especially as the ultimate goal according to which values and priorities are
established.
91 AIR 1984 SC 1562.
92 Saroj Rani v. Suudarshan Kumar Chaddha AIR 1984 SC 1562, available at,
https://indiankanoon.org/doc/1382895/, (visited on January 19, 2017).
93 Ibid.
152 Contemprory Law Review [Vol. 1

suit for restitution of conjugal rights. The property against whom such decree is
passed can be attached by the Court to enforce such decree. Order 21 Rule 32 and
33 provides financial sanctions against the disobeying party. It talks such about
decree as a suit for specific performance. In addition, there is one more form of
execution, which is provided under Rule 33, if the petitioner is the wife. Here, in
such situations, if the Court thinks fit may decide that if the suit is disobeyed
within a definite point of time, the respondent shall make such periodical
payments to the petitioner as the Court thinks reasonable.
In a decree of restitution of conjugal rights the party against whom the decree
is passed cannot compel the other party to physically restore cohabitation. In Wily
v. Wily94 the Court observed that, “an offer by the husband to live under the same
roof with his wife, each party being free from molestation by the other was not an
offer to matrimonial cohabitation.” Again in Bartlett v. Bartlett95 Justice Evatt
specifically considered whether sex was integrated in an action for restitution of
conjugal rights and found that there was authority to support both sides of the
question. He concluded that the question of sexual intercourse or ‘mutual society’
cannot be said to be irrelevant to the question of conjugal rights.96 It thus follows
that, sexual cohabitation is a part of marriage and for filling a decree of restitution
of conjugal rights. The consequences of the enforcement of such a decree are
firstly to transfer the choice to have or not to have marital intercourse to the State
from the concerned individual and secondly, to surrender the choice of the
individual to allow or not to allow one's body to be used as a vehicle for another
human being's creation to the state.97
The initiative taken for the remedy of restitution of conjugal rights is for
preserving the marriage as far as possible. Here, the Court takes initiative and
enjoin upon the withdrawing party to join the other.
Marriage relation needs faithfulness and freewill to each other. But, if such
things are unavailable between the spouses there will be a possibility to infringe
the rights of each other. There must be mutual consent between the parties to the
marriage. In Hyde v. Hyde98 the legal definition of marriage was given by Lord
Penzance, as a voluntary union between man and women. The decree of
restitution of conjugal rights gives the right to the other party to have sexual
intercourse against the unwilling party which violates the human rights and
human dignity of a person. In Russel v. Russel99 Lord Herschell observed that,
restitution of conjugal rights is barbarous in nature.
In Syed Shahnawaz v. Bibi Nasrin Bano100 the High Court held that it was
not denuded of its powers of granting maintenance in a proceeding for restitution
of conjugal rights, provided it is satisfied that wife was not in a position to
maintain her and contest proceedings so brought against her by husband.

94 (1918) P1.
95 (1933) 50 CLR 3.
96 Renata Grossi, LOOKING FOR THE LOVE IN THE LEGAL DISCOURSE OF MARRIAGE, 1 st ed.
2014, p. 44.
97 T. Sareetha v. Venkata Subbaiah AIR 1983 AP 356.
98 (1866) LR IP & D 130.
99 (1897) AC 395.
100 AIR 2009 (NOC) 2155 (Pat).
2017] Contemporary approaches towards Restitution of Conjugal Rights: 153
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Conclusion
Though the Constitution of India has given equal right to everyone, but the
patriarchal nature of our society always try to control the behaviour of the women.
However, educated a woman may be a solution within the matrimonial home, as
she is always treated unequally to men in India. The concept of restitution of
conjugal rights violates the fundamental rights of the woman in many ways and
is not a fair concept of justice. Such concept is against the concept of social
justice, and hence, being ultra-virus and must be declared as unconstitutional.
Marriage creates reciprocal rights and duties among the spouses, but, due to
the patriarchal mind-set women are always persist to maintain and observe all the
rules and regulations made by the other members of the matrimonial home. When
a girl after her marriage went to the matrimonial home it is the duty of the
members of the family of marriage also to treat her as a daughter and make a
friendly environment for her. But, in reality, the picture remains the opposite in
most of the cases and hence, the concept of women empowerment is likely to
wither away from the society.
Gender inequality throughout the world is the most subtle forms of
inequality. This concept includes all the individuals in a society then also the
victims of restitution of conjugal rights are women, even though we live in the
21st century and claim liberal society, we are far from the concept of gender
equality and gender equity. No doubt that, things are changing, but, the process
is very meagre. Each and every day women become victims of various crimes
including matrimonial offences. Their rights are violated in numerous ways.
Whenever brutal crime is committed against women, it create shock in the
society, but, the heart-breaking reality is that all those shocks burst like bubbles
in a very short time and again the violence against women are stated.
Women empowerment urge for the equal right for the women. This concept
depends on the various variables, like, education, social status etc. The key
element which needs to take into consideration is the lack of implementation
machineries and to address the issue of equality and violence against women.
Fight for justice does not only mean a struggle against men, it is a struggle and
fight in opposition to all the traditions that have chained them. Now, time has
come to look into the concept of such rights of the women, which are violated
since last few decades. The concept of restitution of conjugal rights curtails the
fundamental rights of the women, which are the basic rights. The right to privacy,
right against exploitation cannot be infringed in any manner. But, due to this
provision the wife remain helpless and have to reside with a husband who tortured
her and treated her badly. Such right is a violation of natural law principle.
Women now-a-days are in equal footing with men and in no field they lacks
position in comparison with men. The patriarchal structure of the society need to
be eradicated and grants women equal right as men, then only the society will
develop. In the words of Manusmriti, “The Lord divided his own body into two
parts; half male and half female and thus was created the universe.”101 Since the
inception of the universe the male and the female blending has showed to be the

101 ‘The Puranic Account of the Creation’, sacred-texts.com, available at, http://www.sacred-
texts.com/hin/hmvp/hmvp36.htm, (visited on January 20, 2017).
154 Contemprory Law Review [Vol. 1

most important requirement for promulgating global views. Hence, the women
should be given equal status to create a balance in the society and to create an
institution which is basic unit of the society, i.e., the family.
Marriage is the most important social institution. It needs to be preserved.
Laws are there to give remedy to the individuals and help the people in distress.
The Family Court hence, tries to re-unite the bonding of the spouses, so that the
marriage as an institution is preserved. It is necessary for the development of the
human society and to run the civilization as a whole.

****
 TRIBAL CUSTOMARY LAWS VIS-À-VIS WOMEN’S
STATUS IN NORTHEAST INDIA : COMBATING CLIMATE
CHANGE
Rashmi Patowary
ABSTRACT
Citing the 2007 Report by the IPCC (Intergovernmental Panel
on Climate Change) on Climate Change, the United Nations
Economic Social Council (in its March 2008 Report) presents
evidence of the increasing regional climate change. Climate
change has its effects on all sections of the society. However,
differences still prevail. These differences may be in terms of
geography, gender, economy etc. The United Nations
Development Programme (UNDP) acknowledges the fact that
climate change is not gender neutral and women in developing
nations are particularly vulnerable. The United Nations
Framework Convention on Climate Change (UNFCCC) has
also noted that women face greater burden from the impacts of
climate change. It also admits that women can play a crucial
role in tackling climate change due to their local knowledge and
leadership at the household level. Their active participation in
decision-making can ensure effective climate-related planning
and its proper implementation. In the light of the above, it is
pertinent to discuss the status of women in the customary laws
of northeast India, a region that is home to the second largest
biodiversity hotspot in the world (The Eastern Himalayan
Biodiversity Hotspot). This note shall try to discuss and address
the various gender issues (circumscribing status of women)
embedded in these customary laws. The methodology adopted
for the study is doctrinal (wherein secondary sources have been
heavily relied upon).
________________________________________________
Keywords: Customary Laws, Gender, Climate Change,
Northeast India.
Introduction
“Climate change, demographics, water, food, energy, global health,
women's empowerment - these issues are all intertwined. We cannot
look at one strand in isolation. Instead, we must examine how these
strands are woven together.”
- Ban Ki Moon
The urgency to tackle the ever-increasing problem of climate change needs
undivided attention of all sections of the society. This ‘sought after attention’ may
be limited owing to the role conflicts in the existing institutional structures of the

 Scholar, King’s College London, University of London, Brown Street, London, UK, e-
mail: [email protected] / [email protected].
156 Contemprory Law Review [Vol. 1

society; which often hinders individuals from contributing to their full potential.
This note dedicates itself to acknowledge and appreciate the role of women in
combating climate change. The short note boils down to highlight the
opportunities and challenges that the existing societal structures in northeast India
has to provide in expanding and narrowing the important role that women has to
play. It begins with a brief explanation of how and why climate change matters
to women. It also lends an insight as to the acknowledgment by the international
regime on climate change being a women’s issue. The note then looks into the
conflicting and confusing position of women in the north-east society of India
and tries to explore how this silent mayhem is a boon as well as bate in women’s
contribution towards tackling the problem of Climate Change.
Climate Change and Women : Unravelling the Connection
Climate change is one of the formidable issues of this century and demands
undivided attention. Climate change affects all aspects of the society. However,
the degree of impact is defined (or influenced) by various factors, such as; social
status, economic status, gender etc. The United Nations Development Programme
(UNDP) acknowledges the fact that climate change is not gender neutral.1 Thus,
influenced by plethora of factors, women occupy the position of a prominent
stakeholder with regard to climate change. The relationship between women and
climate change can be well appreciated under two broad heads – (a) Women as
one of the worst sufferers of the impact of climate change and (b) Women as one
of the key agent in combating climate change.
The Executive Secretary of the United Nations Framework Convention on
Climate Change (UNFCCC), Christiana Figures has in a crisp manner condensed
the aforesaid interconnection, “Women are disproportionately affected by climate
change, the most vulnerable, and women are the strongest key agent of
adaptation. On both sides because of the vulnerable and potential to contribute
they are one of the most important elements here.”2
Women as the worst sufferers of Climate Change-Women are tremendously
affected by the impacts of climate change. Ranging from loss of biodiversity,
threat to food security, increasing water scarcity; women are surrounded by an
array of complex issues. Some of the noteworthy reasons are as follows3:
Across the globe, women are the primary caregivers4 in their family. In the
developing nations, women’s livelihood depends on availability of natural

1 United Nations Development Programme: Overview of linkages between gender and climate change
(Policy brief 1) at p. 02, available at
http://www.undp.org/content/dam/undp/library/gender/Gender%20and%20Environment/PB1-AP-
Overview-Gender-and-climate-change.pdf, (visited on July 16, 2016).
2 ‘Why women are key to tackling climate change’ Climate Home (March 8, 2016) available at
http://www.climatechangenews.com/2016/03/08/why-women-are-key-to-tackling-climate-change/,
(visited on July 2, 2016).
3 Christiana Figures, ‘Why women are the secret weapon to tackling climate change’ CNN (July 6, 2014)
available at http://edition.cnn.com/2014/03/06/world/why-women-are-the-secret/, Visited on July 2,
2016. Also refer: Kate Stringer, Why Fixing Climate Change Is Women’s Work’ Yes Magazine
(March 29, 2016) available athttp://www.yesmagazine.org/planet/why-fixing-climate-change-is-
womens-work-20160329, Visited on July 2, 2016; Australian Red Cross: Guidance Note – Gender
and Climate Change <http://www.redcross.org.au/files/2014_Gender_and_Climate_Change.pdf
(visited on July 2, 2016).
4 Women farmers currently account for 45-80 per cent of all food production in developing countries
2017] Tribal Customary Laws vis-à-vis Women’s Status in Northeast India: 157
combating climate change
resources. With the drying of water sources and loss of biodiversity, women have
to travel to remote areas in search of food, fuel and water for their families. This
puts them in the risk of being victims to various forms of violence. As seasons
become erratic and traditional sources of food become insufficient and
contaminated, women suffer from poor health and are sucked further into the
vicious cycle of poverty.
Socio-cultural norms leave them ill equipped to handle crisis and take
informed decisions. For instance, societal norms among various communities pull
women away from access to education or encourage them to take sacrificial steps.
Prevalence of cultural stigmas does not allow women to learn survival skills or
develop a proactive attitude. They are also under-represented in decision-making
process of their communities. This limits their potential of protecting themselves
and their families from the adverse impacts of climate change.
It is important to note that the aforementioned reasons are interlinked and act
like a vicious cycle. It is pertinent to note that, women in developed countries also
face the threat of climate change, however at a different level.5
Women as the Ambassador for tackling Climate Change-As women are one of
the worst sufferers of climate change, they shall be the best care giver. “A 2014
EU study found that women are consistently more concerned about climate
change than men, and are more willing to make sacrifices to reduce emissions.
Women are even statistically more likely to ‘believe’ in climate change.”6 There
are numerous instances,7 wherein it has been found that when women are
empowered to exercise leadership roles within their communities, they were able
to respond better to overcome the impacts of climate change (such as preparation
and coping towards natural disasters). Since, women are in the close nexus with

depending on the region... In poor communities in most developing countries, women and girls are
responsible for collecting traditional fuels, a physically draining task that can take from 2 to 20 or
more hours per week... All over the developing world, women and girls bear the burden of fetching
water for their families and spend significant amounts of time daily hauling water from distant sources.
[Refer to, United Nations Women Watch: Factsheet - Women, Gender Equality and Climate Change
(2009) available at http://www.un.org/womenwatch/feature/climate
_change/downloads/Women_and_Climate_Change_Factsheet.pdf, (visited on July 5, 2016).
5 Women in wealthier nations may not experience the effects of climate change with the same
immediacy, but they are similarly worried. A 2015 Pew research study found that while the concern
over climate change is equal between genders in so-called developing countries, women in wealthier
nations are more likely than their male counterparts to see climate change as a real and pressing
personal threat... In developed countries, women make an average of 79 cents for every dollar made
by men. That means women-especially single mothers-may be more likely to feel the effects of
increased food and energy prices. Women head Eighty-four percent of single-parent households in the
United States, and 36 percent of those women live below the poverty line, according to the U.S. Census
Bureau [Refer to, Kate Stringer, Why Fixing Climate Change Is Women’s Work’ Yes Magazine
(29/03/2016) available at http://www.yesmagazine.org/planet/why-fixing-climate-change-is-
womens-work-20160329, (visited on July 2, 2016).
6 Georgie Johnson, Why Climate Change is a Gender Equality Issue’ (March 2016) available at
http://energydesk.greenpeace.org/2016/03/08/why-climate-change-gender-equality/, (visited on May
1, 2017).
7 World Bank ‘Gender and Climate Change–3 Things You Should Know’, available at
http://siteresources.worldbank.org/EXTSOCIALDEVELOPMENT/Resources/244362-
1232059926563/5747581-1239131985528/5999762-1321989469080/Gender-Climate-Change.pdf,
(visited on July 5, 2016).
158 Contemprory Law Review [Vol. 1

the natural resources, their representation in the decision making process of their
communities and societies (at all levels) ensure better framing of policies.
A study found that women in South Asia displayed enormous strength and
capacity throughout the entire disaster cycle: preparing for hazards, managing
after a disaster and rebuilding damaged livelihoods. Activities included ensuring
food and water for the family, securing seed and other productive material and
taking care of the sick and elderly.8
Recent studies reveal that not only women’s participation is important but
also how they participate and how much. And because women often show more
concern for the environment, support pro-environmental policies and vote for
pro-environmental leaders, their greater involvement in politics and in
nongovernmental organizations could result in environmental gains, with
multiplier effects across all the Millennium Development Goals.9
Women and the International Climate Change Regime: A Brief Overview- The
acknowledgement of this inter-linkage between women and climate change has
been slow. The Conference of Parties (COP) has met 21 times since 1995, yet
women have not been explicitly recognized as important stakeholders in the issue
of climate change in the key treaties that formed the foundation of climate change
negotiations, such as the United Nations Framework Convention on Climate
Change (UNFCCC) and the Kyoto Protocol. However, the picture is not so dull10-
(i) Convention on Biological Diversity and the Convention to Combat
Desertification explicitly beckon for full participation of women.
(ii) COP 7 and COP 10 called for increased participation of women and
attended to the fact that the disproportionate impact of climate change on
women should be addressed in future decisions.
(iii) 1995 Beijing Declaration and Platform for Action specifically
recognized the need for women’s participation in the decision-making
process to effectively combat, mitigate, and adapt to climate change. This
established gender as a permanent agenda item for all future COPs.
(iv) After COP13, the Global Gender and Climate Alliance (GGCA) was
created by the United Nations Environment Programme, United Nations
Development Programme, International Union for Conservation of
Nature, and Women for Environment and Development. It has been a
key proponent for women’s inclusion has fostered framing of gender-
responsive policies.
(v) At COP 20, The Lima Work Programme on Gender decision aimed to
advance gender balance in climate policy-making bodies. It also sought
to promote gender sensitivity in developing and implementing policies
to address climate change.

8 United Nations Development Programme: Overview of linkages between gender and climate change
(Policy brief 1) at p. 02, available at
http://www.undp.org/content/dam/undp/library/gender/Gender%20and%20Environment/PB1-AP-
Overview-Gender-and-climate-change.pdf, (visited on July16, 2016).
9 Ibid, at p. 1.
10 Mayesha Alam et al., ‘Women and Climate Change: Impact and Agency in Human Rights, Security,
and Economic Development’, Georgetown Institute for Women, Peace and Security (2015)
https://giwps.georgetown.edu/sites/giwps/files/Women%20and%20Climate%20Change .pdf, (visited
on August 4, 2016).
2017] Tribal Customary Laws vis-à-vis Women’s Status in Northeast India: 159
combating climate change
Despite these significant strides in the past years, it is sad to note that only
40% of the 160 parties of the COP21 made gender references in their Intended
National Determined Contributions (INDCs)-none of whom were from the
industrialized countries.11
Women Status in Tribal Customary Laws of Northeast India : The Paradox
Within
There are about 12 percent tribal out of 80 million who live in the northeast
region of India. Their distribution is uneven in the seven States, with proportion
as high as 94.5 percent in Mizoram and as low as 12.4 percent in Assam.12 There
is this popular belief that the northeast being matrilineal dominant and ‘dowry
free zone’, women enjoy freedom and stature equal to men. This illusion of
equality has been duly noted by various authors13, who have through their studies
reached conclusions that reveal otherwise.
For instance, tribes such as Khasi, Garo, Jaintia are matrilineal societies only
in theory. In practice, it is the men who occupy the significant positions in the
tribe. They are the decision makers. Studies14 done on the Khasi tribe have noted
that, it is the Dorbar Shnong (an assembly constituted by all adult males), which
is responsible for the discipline and welfare of the people. They give all the
instructions with regard to the customary practices of the tribe. In their families,
it is the uncle who holds important stature, taking all the legal and religious
decisions. The popular view that in a matrilineal society, it is the women who is
at the helm of decision-making thus stand thwarted. Furthermore, studies15 have
also shown that, in matrilineal societies of Garo and Khasi, though a woman is
highlighted as the heiress of the family’s property. In reality, she merely occupies
the position of a guardian. It is the male members who takes decisions as to how
the property shall be utilized. In other words, the societies are matrilineal and
there is female inheritance but the control over the property is patriarchal in
nature. However, “Majority of the domestic affairs is in her hands. The lady of
the house is the first to witness the dawn and the last to retire at night.”.16

11 ‘Gender and Climate Change Policy after COP 21’ (University of Copenhagen) available at
https://ccafs.cgiar.org/blog/gender-and-climate-change-policy#.V6c9LyN95FU, (visited on July 7,
2016).
12 National Commission for Women, ‘Chapter-1-Tribal Customary Law and Women’s Status: An
Introduction’, at p. 05 available at http://ncw.nic.in/pdfreports/Customary%20Law.pdf, (visited on
July 1, 2016).
13 Kamei Pamei Roselima, ‘Customary Law and Women in North East India’ International Research
Journal of Social Sciences (2014) Vol. 3(9), pp. 59-62 available at
http://www.isca.in/IJSS/Archive/v3/i9/9.ISCA-IRJSS-2014-163.pdf, (visited on July16, 2016).
14 Laloo N.M., ‘Political Structure of the Khasis: With special reference to the Nongthymmai Dorbar
Pyllun’, (IOSR-JHSS) (2014) Vol. 19(4).
15 Khatso V., ‘Customary Laws and The Gender Issues’, N.E.I, Bull. of Assam Inst. of Res, for Tribals
and SC, Guwahati (2005) & Walter Fernandes et al., ‘Tribal Customary Laws in Northeast India:
Gender and Class Implications’, North Eastern Social Research Centre (2008) cited in Kamei Pamei
Roselima, ‘Customary Law and Women in North East India’ International Research Journal of Social
Sciences (2014) Vol. 3(9), pp. 59-62 available at http://www.isca.in/IJSS/Archive/v3/i9/9.ISCA-
IRJSS-2014-163.pdf, (visited on July16, 2016).
16 Horam. M., Naga Polity. Delhi: Low Price Publication, 47 (1975) cited in Kamei Pamei Roselima,
‘Customary Law and Women in North East India’ International Research Journal of Social Sciences
(2014) Vol. 3(9), pp. 59-62 available at http://www.isca.in/IJSS/Archive/v3/i9/9.ISCA-IRJSS-2014-
163.pdf, (visited on July 16, 2016).
160 Contemprory Law Review [Vol. 1

Therefore, though a woman is given much less importance and she may not able
to assert her opinion in the decision making process, within the family she has a
vital role to play, which cannot be undermined.
Education, which is an important factor for the growth and development of
any community, is equally imparted to both men and women. The Angami Nagas
believe that imparting education to both girls and boys is beneficial. They believe
that the education given to their daughters is a kind of gift, which they shall take
with themselves after their marriage.17 However, this equality in education is
visible up to the primary level. Meaning thereby, for higher education, boys are
given more preference.
In the agricultural fields, it is women folk who are actively engaged in
farming. From jhum fields to the kitchen gardens, the women play an active role
in producing the yield and supporting their families. However, they have less
access to the produce when it comes to selling it in the market. They also have
little say in deciding the nature of the produce. It is the men folk who are engaged
in the monetary exchange and in taking the decisions associated with it. However,
this cannot be generalized for there are markets, (such as Khwairamnand
bazaar18) which has been run by women since time immemorial.19 There are other
numerous customary practices and taboos that limit the freedom of women and
clearly show that the tribes overtly breathe patriarchal ethos and norms. Since,
the men are the decision makers in the tribe (as stated earlier), many a times their
customary laws and practices are interpreted in a manner that favor men.
Challenges and Opportunities
It is clearly visible from the above discussion that, the position of women in
the northeast is ironic. They have a prominent position but it is not formally
acknowledged. They play an important role in grooming their families (their kids)
and they are respected and supported for the same. However, they are not allowed
to take the important decisions of their community.20 They have access to the
fields and natural resources. Their experiences and knowledge let down to them
by their elders is a storehouse of rich traditional knowledge. But, they do not have
control over the economic benefits earned from them. And it is an undeniable fact
that in today’s worlds, economic security is strongly desired for greater control
over ones needs. The above scenario though confusing and satirical offers both
challenges as well as opportunities in how northeast women can play a key role
in tackling the issue of climate change.

17 Ibid, at 15.
18 Khwairamnand bazaar or the popular name Ima market or Nupi Keithel is the world’s only all-women
marketplace...a tradition 100 years old. [Refer to, Mithu Choudhury, ‘Unique women's market at
Keithel, manipur’ available at http://northeastnewsportal.blogspot.in/2013/04/unique-womens-
market-at-keithel-manipur.html, (visited on August 7, 2016).
19 Kamei Pamei Roselima, ‘Customary Law and Women in North East India’ International Research
Journal of Social Sciences (2014) Vol. 3(9), pp. 59-62 available at
http://www.isca.in/IJSS/Archive/v3/i9/9.ISCA-IRJSS-2014-163.pdf, (visited on July16, 2016).
20 This conclusion can be further supported through the following secondary sources -
http://morungexpress.com/tribal-customary-laws-and-womens-equality/;
http://morungexpress.com/women-reservation-versus-naga-customary-law-dialectical-approach/,
(visited on May 1, 2017).
2017] Tribal Customary Laws vis-à-vis Women’s Status in Northeast India: 161
combating climate change
From the literature reviewed so far, it is evident that one of the strongest
challenges would be the lack of women’s voice in the communities’ decision
making. If women are given an equal opportunity to voice their concerns and
opinions in their respective tribes decision-making process, effective mitigation
and adaptation strategies to climate change can be adopted and executed. Women
shall also be able to offer effective solutions given the fact that they are chief
holders and transmitters of traditional knowledge. Customary practices and
taboos that restrict women from being financially independent and maintaining
good health is another challenge that needs to be conquered. The lack of control
over the property that women inherit and over the monetary earnings from
agriculture makes women financially less secure than men. This too can pose a
significant challenge.
Rome was not built in a day! Women to secure equal voice in the decision-
making process and eradication of sexist practices will take time. It shall be a
gradual process, which will demand equal participation of men. However, given
the fact that time waits for none, the threat of climate change escalates with time
and thus, needs quick redress. The opportunities are small and hidden but they
can have significant impact. It is a boon that women in this region have equal
access to education. Education can be a game changer. Women in their domestic
spheres have control on the choices that can significantly reduce the carbon
footprint (for example the choice of fuel, agricultural practices, consumption
patterns of family members, educating their children etc.). If through education,
women are made aware about climate change, their role, the ways and methods
of adapting and mitigating the impacts of climate change, a significant change
can be brought. Education shall also ensure that the traditional knowledge is
conserved and preserved, which is a vital source of solutions to the problem of
climate change. Women’s role in the fields (as the farmer) and in the domestic
sphere (as the caregiver) shall be enhanced. Eventually, this will also have a
trickledown effect, wherein through awareness women will be empowered to take
decisions for their community with regard to climate change.
Conclusion
One need not move to far away regions to look for examples to justify the
important role that an educated and empowered woman can play in solving grave
global issues such as climate change. A nine-year-old Ridhima recently filed a
lawsuit against the Indian Government for failing to take adequate action to
mitigate the effects of climate change.21 India’s INDC takes into account its
commitment to gender equality and women empowerment for its 1.2 billion
people in the recently concluded Paris Agreement. Respecting this commitment,
it is an onus on the legislators, the policy makers, the administrators and the
judiciary that women are empowered. The customary laws and practices of the
northeast India will have to be filtered and moulded to ensure that women in the
region are made independent, self-reliant and self-sufficient in all aspects. It is

21 ‘Girl sues Indian government over inaction on climate change’ available at

http://en.radiovaticana.va/news/2017/04/07/girl_sues_indian_government_over_inaction_on_climate
_change_/1304195, (visited on May 1, 2017).
162 Contemprory Law Review [Vol. 1

only then, that they shall be able to effectively contribute towards steps for coping
climate change.
Concluding with the words from Leonardo DiCaprio’s, 2016 Oscar
Acceptance Speech -climate change is real, it is happening right now. It is the
most urgent threat facing our entire species, and we need to work collectively
together and stop procrastinating. We need to support leaders around the world
who do not speak for the big polluters, but who speak for all of humanity, for the
indigenous people of the world, for the billions and billions of underprivileged
people out there who would be most affected by this. For our children’s children,
and for those people out there whose voices have been drowned out by the politics
of greed...Let us not take this planet for granted.

****
 INTERNATIONAL CRIMINAL COURT AND UNITED NATIONS
SECURITY COUNCIL : DECIPHERING THE POWER POLITICS
Saptarishi Dash & Megha Purohit
ABSTRACT
The road to the formation of the International Criminal Court
was a long and a hard one and has been embroiled in many
controversies. There is one specific point which in particular
sparks most of the friction; i.e., the relationship between the
Court and the United Nations Security Council. The ICC is
expected to be the primary mechanism for the delivery of
international criminal justice. But its functioning is riddled
with power-politics. This is especially true in the context of its
intricate relationship with the United Nations Security
Council. Under Articles 13 and 16 of the Rome Statute, there
are provisions of referral and deferral. This has the effect of
vitiating the proceedings under ICC as it empowers the UNSC
to block, delay and keep the proceedings in abeyance. There
have been many instances where the UNSC has impeded the
functioning of the ICC as can be seen in Resolutions
1422(2002). 1487(2003), 1497(2003) and 1593(2005).The
failure to provide justice in the wake of serious atrocities in
Darfur, Libya, Syria and Kenya is an eye opener for the
international community. The power-politics at the
international level has led to the “selective trial” of cases by
ICC. This will be captured in this paper. The paper shall
attempt to trace the genesis of the ICC and establish its
intricate relationship with the UNSC. It will also try to
highlight how power politics has impeded the functioning of
the ICC and prevented international justice from materialising
into reality.
-------------------------------------------------------------------------
Key words: Referral, Deferral, UNSC Resolutions, power-
politics.
Introduction
Edmund Burke, one of the most famous British Parliamentarians, had noted
in 1770 that “All that’s necessary for the forces of evil to win in the world is for
enough good men to do nothing.”1

 Scholar, National School India University, Bangalore, Karnataka (India), e-mail:

[email protected].
 Scholar, National School India University, Bangalore, Karnataka (India), e-mail:
[email protected].
1 Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and
International Law: The Mutual Impact of National and International Jurisprudence and
Contemporary Practical Conceptual Challenges’, 10(1) Chicago Journal of International Law, (2009)
p. 287.
164 Contemprory Law Review [Vol. 1

International Criminal Court (hereinafter referred to as ICC), which breathed

life in Rome in 1998 and became functional in 2002, is a reflection of decades of
struggle of humanity. In 1945 people have made promise; “for unspeakable
horrors of the World War II to repeat never again, yet cruelty of crimes committed
worldwide in the years since that wishful promise, surpassed even the darkest
moments of the Nazi-era concentration camps.”2
The growing demands for international criminal justice no longer fell on deaf
ears, and bold steps were taken, upholding the legacy Nuremberg Tribunal; ad
hoc tribunals like International Criminal Tribunal for Yugoslavia 1993,
International Criminal Tribunal for Rwanda 1994, Special Court for Sierra Leone
etc.
The essence of adopting the Rome Statute of the International Criminal Court
in 1998 was an affirmation “that the most serious crimes of concern to the
international community as a whole must not go unpunished and that their
effective prosecution must be ensured by taking measures at the national level
and by enhancing international cooperation.”3
This idea was not nascent, but it was a manifestation of a renewed hope of
people around the world to assassinate the culture of impunity and faulty justice
delivery mechanism.
The importance of ICC lies not only as a harbinger that the gross atrocities
which the 20th century witnessed would be eradicated, rather it was the
enlargement of jurisdiction; i.e. “unlike the International Court of Justice (ICJ),
which has jurisdiction only over states, the ICC has jurisdiction over
individuals.”4
The Conjoint Responsibility of ICC and UNSC
Article 5 of the Rome Statute provides for the jurisdiction of the Court and is
enunciated as-“The jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The
crime of aggression”5
The United Nations Security Council (UNSC) is undoubtedly the most
pivotal and potent organ of the United Nations for executing its objective of
maintaining peace in the world. It is evident from Article 1 which states “To
maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and
for the suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or

2 Hans Kochler, ‘Global Justice or Global Revenge? The ICC and the Politicization of International
Criminal Justice’, International Progress Organization Online Papers, 7 (2009), available at www.i-
po.org/koechler-ICC-politicization, (visited on November 23, 2016).
3 Preamble to the Rome Statute, 1998; available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-
AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf, (visited on November 23, 2016).
4 Article 25(1) of the Rome Statute 1998.
5 Article 5 of the Rome Statute 1998.
2017] International Criminal Court and United Nations Security Council 165
:Deciphering the power politics
situations which might lead to a breach of the peace.”6 Article 24 of the Charter
grants the Council “primary responsibility for the maintenance of international
peace and security”7
When the International Criminal Court was formed, it was intended to be a
“credible, independent judicial body, able to adjudicate the most serious of
international crimes fairly and impartially, where national judicial systems have
failed.”8 The same can be elucidated from Article 2(1) of the Relationship
Agreement between the UN and the ICC, which was entered into force in October
2004, “recognized the Court as an independent permanent judicial institution
which (…) has international legal personality.”9 Article 2(2) declares the
principle that “The United Nations and the Court respect each other's status and
mandate.”10
Negotiated Relationship Agreement between the International Criminal Court
and the United Nations 2004 - This agreement was brought into force via Article
2 of the Rome Statute, 1998 which states that; “The Court shall be brought into
relationship with the United Nations through an agreement to be approved by the
Assembly of States Parties to this Statute and thereafter concluded by the
President of the Court on its behalf.”11
This agreement mandates that the relationship between the Security Council
and ICC be cordial; so that they can materialise into reality international peace
and security and that justice is meted out to all the war crime victims. Perhaps the
two most important articles are Article 15 which deals with General provisions
regarding cooperation between the United Nations and the Court and Article 17
dealing with “Cooperation between the Security Council of the United Nations
and the Court.” Article 15(1) provides that “With due regard to its responsibilities
and competence under the Charter and subject to its rules as defined under the
applicable international law, the United Nations undertakes to cooperate with
the Court and to provide to the Court such information or documents as the Court
may request pursuant to article 87, paragraph 6, of the Statute.” Article 17 is
perhaps one of the most important articles of the agreement and captures the crux
of Articles 5, 13 and 16 of the Rome Statue 1998 which will be discussed in the
subsequent chapters.
The UNSC and ICC : Inherent ‘Power Politics’
The Existence of a Paradox-There seems to be a paradox as pointed out by
Phillip Kastner, “On the one hand, a closer relationship between the power-
politics of the UN Security Council and the ICC diminishes the quality and
legitimacy of justice; On the other hand, without cooperation between the UN

6 Article 1 of the Charter of the United Nations 1945.

7 Ibid, Article 24.
8 Arash Abizadeh, ‘Introduction to the Rome Statute of the International Criminal Court’, 34(2) World
Order, 20 (2002), available at http://profspolisci.mcgill.caabizadehPDFsICC.pdf, (visited on
December 3, 2016).
9 Preamble to Negotiated Relationship Agreement between the International Criminal Court and the
United Nations 2004.
10 Article 2(2) of the Charter of the United Nations 1945.
11 Article 2 of the Rome Statute, 1998, available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-
AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf, (visited on December 3, 2016).
166 Contemprory Law Review [Vol. 1

Security Council and the ICC, or in other words, without pursuing justice through
power-politics, some of the worst international crimes would never be tried.”12
A common question which always crops up is as to what can be the
implications when the UNSC refer matters to the ICC. Scholars purport that
during the discussions at Rome to establish ICC, the most vociferous voices who
were in support of establishing the Court wanted to make sure that the ICC would
not be plagued by the “power-politics of the UN Security Council.”13 Henceforth,
there was materialisation of a compromise which entitled the Court’s Prosecutor
three modes by which he can initiate an investigation: “by state referral, Proprio
motu (through the Prosecutor’s own volition) and by UN Security Council
referral.”14
But many States were skeptical of this and dubbed this as a costly
compromise. Many States and human rights organizations vehemently argued
that there must be clear demarcation of politics and justice for attainment of
justice. Geraldine Coughlan noted that “The so-called Trias Politica–the
separation of power between politicians and the judiciary is more absent than
present in international criminal law.”15
Similarly, Louise Arbour, who was the former chief Prosecutor for the ICTY
and the ICTR, pointed “…international criminal justice cannot be sheltered from
political considerations when they are administered by the quintessential
political body: the Security Council. I have long advocated a separation of the
justice and political agendas, and would prefer to see an ICC that had no
connection to the Security Council. But this is neither the case nor the trend.”16
Accordingly, Prof. Benjamin Schiff very imaginatively described the referral
as the Court’s “second poisoned chalice”.17 Their argument is clear as well as
sensible; i.e., for international criminal justice to be credible and legitimate, its
need for separation from politics is urgent.
Lack of Cooperation and Non-Enforcement of Arrest Warrants - A standout
amongst the most vital variables central for the best possible working of the ICC
is the participation of states and authorization of choices by the Security Council.
Since the ICC does not have any authorization forces of its own, participation of
States is the quintessential component that enforces the Court's decisions. The
difficulties of participation are multifaceted, including the referrals of the

12 Phillip Kastner, ‘The ICC - Savior or Spoiler? Potential Impacts of International Criminal Justice on
Ending the Darfur Conflict’, 2007, available at http://digitool.library.mcgill.ca/thesisfile18691.pdf
(visited on December 25, 2016).
13 Shimon Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and
International Law: The Mutual Impact of National and International Jurisprudence and
Contemporary Practical Conceptual Challenges’, 10(1) Chicago Journal of International law, (2009)
p. 287.
14 Silva Kantareva, ‘How Does the United Nations Security Council Affect International Justice?’, 2009,
available at http://hausercenter.org/jhr/2009/07/23/on-international-justice-and-the-united-nations-
securitycouncil/ (visited on December 16, 2016).
15 Ibid.
16 Mark Kersten, ‘The ICC and the Security Council: Just Say No’, 29 Justice in Conflict, 27 (2012),
available at http://justiceinconflict.org/2012/02/29/the-icc-and-the-security-council-just-say-no/,
(visited on December 12, 2016).
17 Ibid.
2017] International Criminal Court and United Nations Security Council 167
:Deciphering the power politics
Security Council and subsequent follow up which are pivotal to enforcing the
Court’s decisions.18
Inconsistency of Article 13(b) with Customary International Law
Article 13(b) of Rome Statute states the following “The Court may exercise
its jurisdiction with respect to a crime referred to in article 5 in accordance with
the provisions of this Statute if a situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United Nations.”19
The referral by the UNSC is glaring in the context of international customary
law. This can be understood by the objectives of the UNSC. Article 25 of the
United Nations Charter specifies that the Members of the United Nations agree
to accept and carry out the decisions of the Security Council in accordance with
the present Charter. The Members of the United Nations accept the decisions of
the UNSC because it acts on their behalf in carrying out its “responsibility for the
maintenance of international peace and security.”20
However, the UNSC does not override customary international law and it is
guided by its precepts. In this context, it is to be examined whether the referral
contemplated in article 13(b) is in conformity to the customary international law.
For a new international customary law to be begotten, it must conform to
criteria laid down in the landmark case of Germany v. Denmark and the
Netherlands,21 colloquially known as the North Sea Continental Shelf cases. It
means that the referral by the UNSC requires a settled practice that is
accompanied by the opinio juris sive necessitates “an opinion of law or
necessity”.22 So now the question arises as to whether the referral subscribes to
this test. But this practice of UNSC does not amount to a settled practice because
it can be vetoed by one of the permanent members. The relationship between the
ICC and UNSC is startling because of the five permanent members; only Great
Britain and France have ratified the Rome Statute, while the others; namely; the
USA, Russia and China, have not. What provides more credence is the fact that
USA has entered into “impunity or bilateral agreements” with 73 countries, by
which no United States citizen may be surrendered to the ICC.23
This manifest circumvention to the Rome Statute highlights that the Statute
is “not generally accepted practice and is not part of general international law.”24
So, it can be stated that the Security Council’s relationship with the functioning
of the ICC, is intricately linked with the actions of the permanent members.25It is
also pertinent to note that that 60% of the permanent members are not parties to
the Rome Statute.

18 Ibid.
19 Article 13(b) of the Rome Statute 1998.
20 Article 24 of the Charter of the United Nations 1945.
21 Germany v. Denmark and the Netherlands [1969] ICJ 1.
22 Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 1st ed. 2003 p. 10.
23 Daniel D Ntada Nsereko, ‘Triggering the Jurisdiction of the International Criminal Court’, 4 African
Human Rights Law Journal, 2004, p. 261.
24 Ibid.
25 Abass, Ademola, ‘The Competence of the Security Council to Terminate the Jurisdiction of the
International Criminal Court’, Texas International Law Journal, 2007, p. 23.
168 Contemprory Law Review [Vol. 1

In the case of United Kingdom v. Norway,26 popularly known as the Anglo-

Norwegian Fisheries case; Norway contented that Norway cannot be bound by
rules which were not rules of general international law. These rules could not be
obligatory for Norway as long as Norway unequivocally and manifestly objected
to them.
In this context, it is permanent that in the Darfur referral; Sudan objected to
the rules of Rome Statute. In addition; the African Union, the Arab states and the
Organisation of the Islamic Conference have refused the indictment and the arrest
warrant. Also; scholars state that; “by no chance this will amountopinio juris sive
necessitatis particularly many writers are doubtful about the integrity of the
Court and other scholars consider the court is politicized and was designed for
Africa as a new era of colonialism.”27
Article 13(b) of Rome Statute affects the sovereignty of a non-State party to
the Statute. Sudan is not a signatory party to Rome Statute. So, it can be said that
exercising jurisdiction over Sudan is in violation of the Vienna Convention on
the Law of Treaties of 1969, and for this reason, violates international law and
the principle of pacta sunt servanda, pacts must be respected.28 Since
international law is founded on the principle on the equality of states; then the
resolution contradicts the doctrine of par in parem non habat imperium “for an
equal has no authority over an equal”.
Article 16 and Independence and Autonomy of ICC
Threat to The International Peace and Security - The Charter of the United
Nations under Chapter VII clearly states that it is the prerogative of the Security
Council to determine whether a particular situation is satisfying the requirements
of Article 39 of the UN Charter. So, a question can be raised as to whether the
ICC “could undertake a separate assessment of the validity of a deferral
resolution under Chapter VII, given the requirements of Article 16?”29
If one peruses the ratio legis of Article 16, it is impossible to contemplate the
contingency of the ICC having the power to challenge the UNSC determination.
If the power to challenge the UNSC determination is granted to the ICC, it would
negate the basic essence of Article 16 because it would then empower the Court
to investigate whether or not the conditions set up in Article 16 are satisfied. This
is a glaring example of the ensuing power politics in the international sphere.
Temporal Scope and Length of the Deferral - Another issue which makes the
UNSC’s deferral highly controversial is its temporal scope. The words used in
the provision of Article 16, i.e., “no investigation or prosecution may
be commenced or proceeded” is a clear indication that when the other conditions
are met, the UNSC has the prerogative to invoke Article 16. The Statute does not
define investigation and prosecution. However, a conjoint reading of Articles
15(3) and 53 (1) highlights that an investigation is initiated when the Prosecutor
considers that there is a reasonable basis to do so. So, it can be stated that it is
vividly clear that if the Prosecutor takes steps during a preliminary

26 United Kingdom v. Norway [1951] ICJ 3.

27 Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 1st ed. 2003, p. 10.
28 Article 26 of Vienna Convention on the Law of Treaties of 1969.
29 Robert Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’, 19 Leiden Journal of
International Law, 2006, p. 196.
2017] International Criminal Court and United Nations Security Council 169
:Deciphering the power politics
examination, i.e., prior to the initiation of an investigation; it cannot be prevented
by the UNSC.
In this context, the first uses of Article 16 deferral were pre-emptive and
abstract as no investigation was initiated or initiation was not even imminent.
This was the situation with Resolutions 1422 (2002) and 1487 (2003). So, Article
16 was vaguely used by the UNSC.30
Independence of ICC - The more glaring fact is that Article 16 can be used
to suspend an investigation or a prosecution. The UNSC; being an international
executive body has the power to interfere with the judicial proceedings and is a
clear manifestation that Article 16 is a stumbling block for the independence of
the Court.
Analysis of United Nations’ Resolutions
Resolution 1593 of 2005 - Resolution 1593 the UNSC was pervaded with
incoherency under three broad heads:
(i) Ambiguity of Chapter VII - Firstly; it was not crystal clear as to under which
provision or provisions of Chapter VII of the United Nations Charter was the
UNSC was acting. The Resolution simply mentioned that the UNSC was acting
under Chapter VII of the United Nations Charter.
(ii) Imputing Liability on Non-Party States - Secondly, Paragraph (2) of the
Resolution stated “the Government of Sudan and all other parties to the conflict
in Darfur are required to cooperate fully with and provide any necessary
assistance to the Court and to the international prosecutor pursuant to this
resolution and, while recognizing that States not party to the Rome Statute have
no obligation under the Statute, urges all States and concerned regional and
other international organizations to cooperate fully.”31
By virtue of Article 86 and subsequent provisions of Part IX of the Statute
which relates to International Cooperation and Judicial Assistance, only State
parties to Rome Statute are under obligation to cooperate with the Court. But the
inclusion of all states in Paragraph 2, the referral has imputed liability on non-
party States to cooperate with the court.32 Though this might have the effect of
advancing the cause of international justice, but at the same time it makes no
distinction between parties and non-parties to the Convention.
Contradiction of Article 115 of the Rome Statute - Thirdly, in terms of paragraph
7 of the Resolution, the UNSC decided that, “the expenses incurred in connection
with the referral, including expenses related to investigations or prosecutions in
connection with that referral, will not be borne by the UN.” Though this may act
as deterrence to other countries; but it is in contravention of Article 115 of the
Rome Statute which states “The expenses of the Court and the Assembly of States
Parties, including its Bureau and subsidiary bodies, as provided for in the budget
decided by the Assembly of States Parties, shall be provided by the following
sources:......b) Funds provided by the United Nations, subject to the approval of

30 Andrew T. Cayley ‘The Prosecutor's strategy in seeking the arrest of Sudanese President Al Bashir
on Charges of Genocide’, 6(5) Journal of International Criminal Justice, 2008, p. 830.
31 Resolution 1593 of 2005, available at https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-
9566 48EDF55CC587/283244/N0529273.pdf, (visited on December 30, 2016).
32 Peter Quayle, ‘Syria and the Arab Spring: International Criminal Law after a UN Veto’, 20 Justice in
Conflict, 2012, p. 17.
170 Contemprory Law Review [Vol. 1

the General Assembly, in particular in relation to the expenses incurred due to

referrals by the Security Council.”
United Nations Security Council Resolution 1422 (2002)
This resolution was adopted unanimously by the Security Council on 12 July
2002. The Security Council granted immunity from prosecution by the
International Criminal Court (ICC) to United Nations peacekeeping personnel
from countries that were not party to the ICC.33 It was a highly controversial
resolution as it was passed at the insistence of the United States, which had
threatened to veto the renewal of all United Nations peacekeeping missions
(including the renewal of the United Nations Mission in Bosnia and Herzegovina
passed the same day) unless its citizens were shielded from prosecution by the
ICC.34 The Council noted that “...If a case arises involving current or former
officials or personnel from a contributing State not a Party to the Rome Statute
over acts or omissions relating to a United Nations established or authorized
operation, shall for a twelve-month period starting July 1, 2002 not commence
or proceed with investigation or prosecution of any such case, unless the Security
Council decides otherwise.”35
United Nations Security Council Resolution 1487 (2003)
The Council granted one-year extension for immunity from prosecution by
the International Criminal Court (ICC) to United Nations peacekeeping
personnel from countries via this resolution, that were not party to the ICC,
beginning on 1 July 2003.36 The resolution was also passed at the vociferous
insistence of the United States. It was entered into force July 1, 2003 for a period
of one year. It is worth noting that France, Germany and Syria had abstained from
voting, arguing there was no plausible justification to renew these measures. But,
the Security Council refused to renew the exemption again in 2004 after pictures
emerged of U.S. troops abusing Iraqi prisoners in Abu Ghraib, and the U.S.
withdrew its demand.37
United Nations Security Council resolution 1497 (2003)
This Resolution was adopted on August 1, 2003, after expressing concern at
the situation in Liberia, the Council authorised a multinational force to intervene
in the civil war to support the implementation of a ceasefire agreement using all
necessary measures.38 The resolution was adopted by the Security Council by 12
votes to none. The three absentees were France, Germany and Mexico. The

33 For some scholars, Resolution 1422 is not only controversial and politically motivated, but it is also
invalid and illegal because it violates the UN Charter, many UN treaties as well as the international
customary law including jus cogens. Aly Mokhtar, The fine art of arm-twisting: the US, Resolution
1422 and Security Council deferral power under the Rome Statue, 3 International Criminal Law
Review, (2003) p. 343.
34 Carsten Stahn, The Ambiguities of Security Council Resolution 1422 (2002), available at
http://ejil.org/pdfs/14/1/410.pdf, (visited on December 21, 2016).
35 Paragraph 1, Resolution 1422(2002) of the United Nations Security Council, available at
http://www.amicc.org/docs/SCres1422.pdf, (visited on December 25, 2016).
36 Paragraph 1, Resolution 1487(2003) of the United Nations Security Council, available at
http://www.amicc.org/docs/1487.pdf, (visited on December 29, 2016).
37 Eric Donnelly, THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND
POLICY ISSUES, 1st ed. 2004, p. 420.
38 Ademola Bass, ‘The Competence of the Security Council to Terminate the Jurisdiction of the
International Criminal Court’, Texas International Law Journal (2005).
2017] International Criminal Court and United Nations Security Council 171
:Deciphering the power politics
reason was that the three countries albeit affirmed the intervention but at the same
time were opposed to the demands of the United States in the earlier resolutions
of 1422 of 2002 and 1487 of 2003 that exempted soldiers from countries not party
to the Rome Statute of the International Criminal Court (ICC) from
its jurisdiction.39
The Security Council stressed the need to create a secure environment with
respect for human rights, humanitarian workers and the well-being for civilians,
including children. It recalled the obligation of the Liberian parties to the
ceasefire agreement signed in Accra, Ghana on 17 June 2003 and of demands
contained in Resolution 1343 (2001) to prevent armed groups from using the
territory of states to attack others and destabilise the border regions between
Guinea, Liberia and Sierra Leone.40 Acknowledging that the prevailing
conditions in Liberia posed a threat to international peace and security, the
Council appreciated the efforts of the Economic Community of West African
States (ECOWAS).41
Double Standards Approach of UNSC
It is often stated that UNSC follows a double standards approach and it can
be said that this approach is migrating into the functioning of the ICC. The Israel-
Palestine conflict led to perpetration of massive war crimes in the Gaza strip.
Amnesty International stated on 30 June 2006 that deliberate attacks by Israeli
forces against civilian property and infrastructure in the Gaza Strip violate
international humanitarian law and constitute war crimes.42 John Dugard in an
address to a special session of the United Nations Human Rights Council
confirmed that the Israeli actions are in violation of the most fundamental norms
of humanitarian law and human rights law.43 But, the UNSC has given a deaf ear
to it and has neither referred the situation in Gaza to the Court nor has the
Prosecutor initiated investigation against Israeli war criminals.44 If we view this
from the North-South divide, Mahmood Mamdani questions the fact that the
unarmed people killed in Darfur is labelled with genocide and the killing of
civilians in Iraq under the pretext of ‘War on Terror’ is not.
Jean Ping, the former African Union Commission Chairman expressed the
position of the AU as follows “African Union's position is that we support the
fight against impunity, we cannot let crime perpetrators go unpunished. But we
say that peace and justice should not collide, that the need for justice should not

39 Ibid.
40 UN Security Council, ‘Resolution 1487 of 2003’; available at
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Chap%20VII%20SRES%201497.pdf, (visited on December 30, 2016).
41 Hans Köchler, ‘Double Standards in International Criminal Justice: The Case of Sudan, International
Progress Organization’, (2005) p.1, available at http://i-p-o.org/Koechler-Sudan-ICC.pdf, (visited on
December 23, 2016).
42 Ibid.
43 Daniel D Ntada Nsereko, ‘Triggering the Jurisdiction of the International Criminal Court’, 4 African
Human Rights Law Journal, 2004, p. 261.
44 Hans Köchler, Double Standards in International Criminal Justice: The Case of Sudan, International
Progress Organization, (2005) p.1, available at http://i-p-o.org/Koechler-Sudan-ICC.pdf, (visited on
December 23, 2016).
172 Contemprory Law Review [Vol. 1

override the need for peace.”45 He pointed out the fact that Africa was being
selectively targeted by the Court. He said that what we see is that international
justice seems to be applying its fight against impunity only to Africa as if nothing
were happening elsewhere, (such as) in Iraq, Gaza, Colombia or in the
Caucasus.46 A vivid example is that of The Prosecutor filing an arrest warrant for
Al-Bashir, and the international responses to his decision, which demonstrates
both the politicising of the crisis and the ‘selectiveness’ of international law.
The power politics and inability of the ICC to punish all war criminals
frustrates the purposes and principles of the UN Charter itself. The UN was
founded on the principle of equal rights and self-determination of people, and to
take other appropriate measures to strengthen universal peace.47 Moreover, the
UN is based on the principle of the sovereign equality of all its Members.
Nevertheless, the Court and the countries of the north opt for impinging on the
sovereignty of the countries of the south.
Security Council Declination to Defer Investigations
Kenyan Investigation - Kenya had implicitly affirmed to the ICC’s jurisdiction
by ratifying the Rome Statute. There was an International Commission of inquiry
which was formed by the government of Kenya to take cognizance the atrocities
during the December 2007 Presidential election. The said International
Commission recommended establishment of a special tribunal to prosecute the
perpetrators of the alleged violations.48 When the deadline consented by the
Government of Kenya and the ICC Prosecutor for Kenya as the date to initiate
prosecutions lapsed in September 2009; as a result of the Parliament’s failure to
formally institute a tribunal, the Prosecutor started the ICC investigation on the
basis of the evidence that he had gathered. This was a landmark occasion as it
was for the first time an investigation was commenced independently; i.e. without
a referral from the government of a country or from the Security Council. Starting
at the end of 2010, Kenya wanted the Security Council to defer the investigation
under Article 16 of the Rome Statute, arguing that such cases could be adjudged
by a credible local mechanism. This proposal was also supported by the African
Union in January 2011, and resulted in the Council engaging in a dialogue with
Kenya on 18 March, 2011, and a subsequent informal discussion on 8 April, but
did not yield any fruitful conclusion and the Council did not take any action.49
Kenya adhered to the required procedure of challenging the admissibility of
ICC investigation under Article 19 of the Rome Statute claiming the ground of
potential domestic prosecution, but this was openly rejected by an ICC Pre-Trial

45 Charles Chernor, ‘An African expert study on the African Union concerns about Article 16 of the Rome
Statute of the ICC’, Institute for Security Studies, 5 (2010), available at
www.iss.co.za/uploads/positionpaper_icc.pdf, (visited on December 7, 2016).
46 Ibid.
47 Preamble to the Charter of the United Nations 1945.
48 David Scheffer, ‘The Security Council’s Struggle over Darfur and International Justice’, Jurist Legal
News and Research, 2008, p. 17.
49 Charles Chernor, ‘An African expert study on the African Union concerns about Article 16 of the Rome
Statute of the ICC’, Institute for Security Studies, 5 (2010), available at
www.iss.co.za/uploads/positionpaper_icc.pdf, (visited on December 7, 2016).
2017] International Criminal Court and United Nations Security Council 173
:Deciphering the power politics
Chamber in May 2011. The Pre-Trial Chamber then subsequently permitted the
ICC trials to be initiated against four indicted Kenyan political leaders.50
The glaring example of Syria - A glaring example is the Council's refusal to refer
the grave situation in Syria to the ICC, despite the existence of all the requisites
that were prevalent in Darfur and Libya. Starting in March 2011, protestors have
been killed in thousands by Syrian security forces, with the number of people
who were detained and tortured sky-rocketing. A special session of the United
Nations Human Rights Council (HRC) in April 2011 condemned the use of lethal
violence against peaceful protesters by the Syrian authorities and mandated the
Office of the High Commissioner for Human Rights (OHCHR) to initiate an
investigation.51
A presidential statement by the Security Council on 3 August condemned the
widespread violations of human rights and the use of force against civilians by
the Syrian authorities and said those responsible for the violence should be held
accountable.52 After perusing the report of the OHCHR mission, the High
Commissioner urged the Security Council in the month of August, 2011 to refer
the situation in Syria to the ICC. There were States who were drafting a Security
Council resolution on Syria in August and they initially proposed a reference
noting the recommendation of an ICC referral, but this was vetoed by Russia and
China in October.
Way Forward : Opportunities and Strategies for Action
Some robust steps are needed to improve the working relationship between
the ICC and the Security Council. These steps are mostly procedural. Taken
together, these won't just fortify the ICC and advance the goal for international
justice, but will also clarify the policies of the Security Council and increase its
leverage vis-à-vis the threat or actual use of international accountability
mechanisms such as the ICC.53
Arrest Strategies - The domain where the Security Council can seemingly give
the most powerful support to the ICC is the ‘enforcement of arrest warrants’. In
the circumstances when the Security Council has referred to the ICC, what is
startling is there are hardly any arrests. Sudan has blatantly defied the directions
of the ICC. The Sudanese government has not arrested the persons implicated in
the commission of atrocities in Darfur, and President Omar al-Bashir has been
visiting many nations; including countries who are parties to the ICC and who are
therefore, legally obliged to implement the ICC arrest warrants. However, it is to
be noted that the Republic of Malawi in the year 2012, acknowledged its
commitments under the Rome Statute and denied Omar al-Bashir entry into its
territory.54

50 John Washburn, ‘The Negotiation of the Rome Statute for the International Criminal Court and
International Lawmaking in the 21st Century’, 11(2) Pace International Law Review, 1999, Vol.11,
Issue 2, p. 364.
51 Ginsburg, Tom, ‘The Clash of Commitments at the International Criminal Court’, Chicago Journal of
International Law, 2008, p. 10.
52 Kurt Mills, ‘Bashir is Dividing us: Africa and the International Criminal Court’, 34 (2) Human Rights
Quarterly, 2012, p. 444.
53 Jennifer Rahan, ‘The Relationship between the International Criminal Court and the UN Security
Council: Parameters and best practices’, 24 Criminal Law Forum, 2013, p. 433.
54 Ibid.
174 Contemprory Law Review [Vol. 1

The other side of the coin : Security Council support to ICC - The difficulties
standing up to the ICC transcend the topic of arrest warrants. It is a general
requirement for soundness in the strategies of Security Council on inquiries of
international responsibility and accountability and the ICC. Being the
international authority; in any event in the circumstances that a referral has been
made to the ICC by means of Chapter VII of the UN Charter; the Security Council
is in charge of guaranteeing that the ICC can complete its work. Beyond the arrest
warrants, the Council can utilize the plethora of diplomatic and coercive
instruments available to it.
Action outside of the Security Council - The vast majority of the proposals that
have always been mooted are solely focused at the Security Council. Be that as it
may, a considerable measure should be possible from the outside looking in to
ensure these suggestions are executed. It is improbable that they will be
acknowledged without a conjoint effort by all stakeholders; including civil
societies, states parties, and the court itself.55
Requirement of a Follow up - There is an urgent need for a ‘Follow-up’ by the
Security Council once a referral has been made. When the Security Council does
not utilize the forces available to it to propel the reason for equity, the justice
which the ICC can accomplish when left to its own instruments is extremely
constrained. The absence of progress in the circumstances in Darfur and Libya
show these difficulties practically speaking, especially as to non-authorization of
capture warrants. At the point when Prosecutor Fatou Bensouda presented the
sixteenth report of the ICC to the Security Council on the conditions in Darfur,
she voiced her disappointment at the absence of support from the Council that
“My Office and the Court as a whole have done their part in executing the
mandate given by this Council in accordance with the Rome Statute. The question
that remains to be answered is how many more civilians must be killed, injured
and displaced for this Council to be spurred into doing its part?”56
The referrals by the Security Council also narrowly define the requirements
for states to cooperate with the court in a way that is analogous to the aspects of
jurisdiction and financing. The reality is that Security Council decisions which
refer cases to the ICC must be passed under Chapter VII of the UN Charter. All
things considered, the decisions are final and binding for all the UN state parties.
The independence and the autonomy of the ICC is in a quagmire because of
alleged selective practice57 executed by the UNSC, via its system of referrals and
deferrals. The temporal scope of article 16 should be reduced so as free the ICC
proceedings from UNSC interferences on the commencement of the trial.
In order to avoid the perception of double standards principle, an effort to
secure more ratification should be attempted.

55 Neha Jain, ‘A separate Law for Peacekeepers: The clash between the Security Council and the
International Criminal Court’, 16(2) The European Journal of International Law, 2005, p. 254.
56 Fatou Bensouda, ‘Statement to the United Nations Security Council on the Situation in Darfur, the
Sudan, Pursuant to UNSCR 1593 (2005)’, speech delivered to the Security Council, December 13,
2012, available at www.icc-cpi.int/iccdocs/PIDS/statements/UNSC1212/
UNSCDarfurSpeechEng.pdf, (visited on January 2, 2017).
57 Daniel D Ntada Nsereko, ‘Triggering the Jurisdiction of the International Criminal Court’, 4 African
Human Rights Law Journal, 2004, p. 261.
2017] International Criminal Court and United Nations Security Council 175
:Deciphering the power politics
Conclusion
For international justice to be materialised, the ICC should be free from
power politics. As long as the power politics plays a role in the UNSC’s practice
of referral and deferral; international justice will not be materialised into reality.
As already pointed out in the previous chapter, there needs to actions outside
of the UNSC and there is an urgent need for follow-up. A deferral cannot be in
abeyance for ad infinitum. There has to be concrete actions in order to ensure that
the trials can be conducted smoothly without any backlog or delay.
The UNSC, instead of being engrossed in the power politics should devise
an accountability strategy which is coherent, should apply uniform standards and
should utilise the plethora of diplomatic tools which are at its disposal. Finally,
the UNSC should be apt in executing the arrest warrants. The UNSC should not
circumscribe the jurisdiction of the ICC but rather aggrandize it by enabling it to
enforce its decisions.
At the same time, it is the responsibility of the ICC to ensure that the justice
delivery mechanism is not vitiated by the UNSC’s practice of referrals and
deferrals. Only if the UNSC and ICC duly perform their conjoint responsibility;
only then can international justice can be materialised into reality. So, only with
the conjoint function of the ICC and UNSC can international justice be
materialised to reality.

****
 OBSCENITY AND FREEDOM OF SPEECH AND
EXPRESSION
Niharika Behl & Gargi Singh
ABSTRACT
Freedom of speech and expression is a God’s gift to mankind, a
natural right, which it acquires on birth. Reasonable restrictions
under Article 19(2) can be imposed on this fundamental right when
the subject matter or contents are found to be obscene in nature in
other words, against decency and morality. Decency and morality
are very subjective and shall only be imposed by the courts on case
to case basis after deeply scrutinizing the facts and circumstances
of each case. Obscenity as defined by Supreme Court is the quality
of being obscene which means offensive to modesty or decency;
lewd, filthy or repulsive. Obscenity is often confused with nudity,
indecency and sex. A vulgar writing or nudity is not necessarily
obscene in nature. An author’s work is not considered to be
obscene until the impugned matter appeals an unhealthy,
inordinate person having perverted interest in sexual matters.
Freedom of expression is of inestimable value in a democratic
society based on the rule of law and has to be judged from the
standards of reasonable strong minded, firm and courageous man.
In this paper an earnest attempt will be made to explain how
obscenity is different from indecency and morality and how nudity
and vulgarity are not necessarily obscene in nature. It will be
explained that how Indian courts have interpreted the term
Obscene and what test is applied before declaring a piece as
obscene. It will highlight the fact that the society should broaden
its spectrum and inculcate unpopular views.
_________________________________________________
Keywords- Vulgarity, nudity, morality, obscenity, reasonable
restrictions
Introduction
A bar to freedom of speech and expression comes from obscenity. Most of
the times, the word obscenity is misinterpreted. Obscenity as per psychology has
a tendency to deprave the human mind to such an extent that it leads to an overt
misbehavior. Obscenity is punished because by its very nature it prepares a
ground for ‘mens rea’ requisite in other offenses or it jeopardizes the moral
texture of a society which is essential for the progress of any country.1 In nutshell,
it can be said that obscenity is punished on amount of its grossly offensive nature

 Student, University of Petroleum and Energy Studies, B.A.LLB.(Hons.), e-mail-

[email protected].
 Student, University of Petroleum and Energy Studies, B.A.LLB.(Hons.), e-mail-
[email protected].
1 Inder S. Rana’s LAW OF OBSCENITY IN INDIA, USA and UK, 1st ed. 1990.
2017] Obscenity and Freedom of Speech and Expression 177

and it is productive of feelings of shock, disgust, shame and revulsion.2 The

Supreme Court has defined obscenity as the quality of being obscene which
means offensive to modesty or decency; lewd, filthy or repulsive.3 A publication
is said to obscene when on being read as a whole, it has a tendency to deprave
and corrupt the minds of individuals and generate prurient feelings among
individuals.
The statutes which put a bar on the freedom of speech and expression on the
grounds on indecency and immorality include-
(i) Section 292 and 2934 of Indian Penal Code makes obscenity a
punishable offense.
(ii) The Cinematographic Act 19525 censors the content which is indecent
or immoral.
(iii) The Dramatic Performances Act 18766 prohibits obscene public
performances.
(iv) Section 11 of the Customs Act 19627 empowers the government to
control import and export of goods on grounds of morality and
indecency.
(v) Section 67 of Information and Technology Act 20008 penalizes
publication of obscene material on the internet.
(vi) The Young Persons Act 19569 prevents publication of material which
could corrupt a young person or a child and induce him to commit a
crime, cruelty, etc.
(vii) Section 20 of the Post Office Act10 prevents transmission of any
obscene material and The Indecent Representation of women Act
prevents any indecent representation of women through
advertisements, social media, etc.
These are the most prevalent statutes through which a bar on obscenity is put.
The subject matter of obesity is very extensive in nature but the main objects
include literature, cartoons and photography, films, pornography and other erotic
material. The Indian courts have held that obscenity confers a strict liability on
an individual. It was observed in the case of Ranjit D. Udeshi11 that proof of
knowledge of obscenity is not necessary. Even though there was no direct
evidence of the requisite ‘mens rea’ on the part of the bookseller, he was held
guilty and convicted for selling obscene content.
The Obscenity Tests
There is no uniform test which has been adopted by the Indian courts and it
all depends on the case to case basis i.e. on the facts and circumstances of each
case. The court has though with the help of various judgments laid down certain

2 Ibid.
3 Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881, para 7, p. 885.
4 Sub-section(s) 292 and 293, the Indian Penal Code1960.
5 The Cinematographic Act 1952.
6 The Dramatic Performances Act 1876.
7 Section 11, the Customs Act 1962.
8 Section 67, the Information and Technology Act 2000.
9 The Young Persons Act 1956.
10 Section 20, the Indian Post Office Act 1898.
11 Ibid.
178 Contemprory Law Review [Vol. 1

guidelines and parameters with the help of which a certain publication is labelled
as obscene. The various tests include:-
(a) Hickiln’s test - The oldest case of obscenity i.e. Ranjit D. Udeshi12 was
decided on the basis of the very old English test called the Hicklin’s
test. The Hicklin’s test was laid down in the case of R v. Hicklin13 where
something is termed as obscene when it has a tendency to deprave the
minds of those people in whose hands the matter is likely to fall. In
Samaresh Bose v. Amal Mitra14 while applying the test the court
observed that the judge should place himself in the position of a reader
of every age group in whose hands the book is likely and should try to
appreciate what kind of possible influence the book is likely to have in
the minds of the reader. The subjectivity became visible when the
Supreme Court, in the case of C.K. Kakodar v. State of Maharashtra,15
applied the Hicklin Test. To identify the obscenity in the story, it
examined the theme of the story, the main protagonists, and the ‘artistic
merit’ in it.
The other test that has been used by the court is the likely audience test.
(b) The Likely Audience Test - The Hicklin test was replaced by the likely
audience test in which the test was what kind of effect the publication
is going to have on the likely audience and not what effect it’s going to
have on the person in whose hands the book is likely to fall. In
Chandrakant Kalyandas Kakodkar v. State of Maharashtra,16 the SC
observed that Contemporary and moral standards as well as the effect
on viewer, especially young and adolescent are the relevant factors, in
determination of obscenity. A film has to cater to the tastes of different
kinds of people and thus, different topics are covered, before the film
ends. Therefore, the ultimate reaction when the film ends and whether
it offends any strata of the society are the two crucial factors to be
considered while pointing out obscenity.
(c) Ruth/Miller test - In Roth v. United States,17 Court applied a new test
for obscenity, which was whether to the average person, applying
contemporary community standards, the dominant theme of the
material, taken as a whole, appeals to the prurient interest. This is
known as Ruth test of obscenity. The Roth test was further expanded
when the Court decided Miller v. California18 case. It is commonly
known as Miller test. Under the Miller test, a work is obscene if it would
be found appealing to the prurient interest by an average person
applying contemporary community standards depicts sexual conduct in

12 Ibid, at 8.
13 (1868) 3 QB 360.
14 (1985) 4 SCC 289.
15 (1969) 2 SCC 687.
16 Ibid.
17 Roth v. United States 354 US 476 (1957 Supreme Court of the United States).
18 Community Standards, Class Actions, and Obscenity under Miller v. California, 88 Harvard Law
Review 1838, 1874(1975), available at
http://www.jstor.org.spicework.ddn.upes.ac.in:2048/stable/1340209, (visited on October 10, 2016).
2017] Obscenity and Freedom of Speech and Expression 179

a patently offensive way and has no serious literary, artistic, political or

scientific value.
These tests indicate that the text or the publication should be seen in its
entirety and the same view has been taken in the Cinematograph Act where it
prescribes under section 3(1) that the film shall be observed in its entirety in order
to point out obscenity.
(d) Prudent ordinary man test - The test of obscenity should be done out
of a prudent and sensible man and not out of a hypersensitive man. This
test was laid down in the case of S. Rangarajan v. P. Jagjivan Ram19
where the stress was laid down on the point that the content should be
of such a nature that it depraves the ideologies of a prudent man and not
a hypersensitive man.
These are a few tests which have been performed by the Indian courts while
interpreting obscenity out of which some of the tests failed. Towards the end it
can be concluded that the interpretation differs on the basis of facts and
circumstances of each case.
Decency and Morality : Exceptions to Article 19(1)(a)
Obscene publications are considered to be indecent and immoral and are
against public policy and hence put a bar on freedom of speech and expression.
Concepts of morality and indecency are relative in nature and are very vague to
define. Morality as per Merriam Webster is defined as beliefs about what a right
behavior is and what a wrong behavior is. The definition itself talks about two
things: - (a) belief or set of beliefs (b) behavior. The system of belief and set of
beliefs is truly a relative concept if we refer to any psychological jurisprudence
but when we come to behavior it is dependent upon those belief systems that are
so determined by us in our own mental psychological state of mind. Hence if set
of beliefs are itself relative then actions upon it will also be relative in the concept.
Immorality by itself is not a ground of constitutional challenge and it
obviously cannot be, because morality is a subjective concept, except in so far as
it may be reflected in any provision of the Constitution or may have crystalized
into some well-accepted norm of special behavior. Morality and decency are
behavioral norms and differ from one society to another and the same viewpoint
was taken in the case of Chandrakant Kalyandas Kakodkar v. State of
Maharashtra,20 where the Hon’ble SC observed that ‘notions of morality vary
from country to country depending on the standards of contemporary society’.
The concept of obscenity is moulded to a very great extent by the social outlook
of the people who are generally expected to read the book21. It is beyond dispute
that the concept of obscenity usually differs from country to country depending
on the standards of morality of contemporary society in different countries.22
Even the outlook of the judge may differ from another judge on the question of
obscenity in as much as even in the matter of objective assessment the subjective
attitude of the judge hearing the matter is likely to influence though

19 1989 SCC (2) 574.

20 (1969) 2 SCC 687.
21 (1969) 2 SCC 687.
22 Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881, para 7, p. 885.
180 Contemprory Law Review [Vol. 1

unconsciously his mind and his decision on the question.23 As the society is
dynamic in nature, its norms and standards change from time to time. Something
that is acceptable today might not have been acceptable in the past. For instance
in the past, Mrs. Annie Besant and Mr. Bradlaugh were convicted for advertising
contraceptives in order to initiate family planning.24 There was a very interesting
case called Nandini Tewari v. Union of India25 wherein while dealing with a
Public Interest Litigation seeking direction, inter alia, to the respondent to delete
the word “fanny” from everywhere it appears/ed in the film ‘Finding Fanny’ on
the ground that it will hurt the feelings of citizens of India, have inter alia held
that if any such restrictions were imposed, the same could affect the constitutional
right of the film maker and that our society is a very mature society and that there
is no need to be so sensitive about such a thing. The PIL was filed on grounds
that the word Fanny has a very indecent meaning in the English dictionary, but
the court observed that in the developing country like India, their live mature
people and there is no need to be sensitive on just a word. Further the Supreme
Court in S. Khushboo v. Kanniammal26 observed that ‘Even though the
constitutional freedom of speech and expression is not absolute and can be
subjected to reasonable restrictions on grounds such as ‘decency and morality’
among others, we must lay stress on the need to tolerate unpopular views in the
socio-cultural space. The Framers of our Constitution recognized the importance
of safeguarding this right since the free flow of opinions and ideas is essential to
sustain the collective life of the citizenry. While an informed citizenry is a
precondition for meaningful governance in the political sense, we must also
promote a culture of open dialogue when it comes to societal attitudes.27 This can
be summed up by making a reference to a line said by D.H. Lawrence where he
said that “what is pornography to one man is the laughter of genius to the
another.”28
Obscenity, Nudity, Right to Know and Article 19(1)(a) : With Respect to
Restrictions
Nudity and right to know with reference to Article 19(1)(a)- Mere reference
to sex and sexual implications though may be nude but might not always amount
to obscenity. Pornography is totally different from a movie containing nude sense.
The nude scenes may or may not generate prurient feelings and can be for
awareness per se but pornography in contravention to this generates prurient and
lascivious feelings and possesses a tendency to deprave and corrupt the mind of
the person viewing it. Similar view was taken in Maqbool Fida Husain v. Raj
Kumar Pandey29 where it was observed that the contention that the legal test of
obscenity is satisfied, it is said so only when the impugned art / matter can be said
to appeal to a unhealthy, inordinate person having perverted interest in sexual

23 Ibid.
24 Exparte Jackson, 96, U.S .727(1878).
25 WP(C) No.6053/2014.
26 (2010) 5 SCC 600.
27 Ibid.
28 Pornography and Obscenity,3 Critical quarterly 99, 99 (1961), available at http://onlinelibrary.
wiley.com/doi/10.1111/j.1467-8705. 1961.tb01150.x/abstract, (visited on October 11, 2016).
29 Crl. Revision Petition No. 114/2007.
2017] Obscenity and Freedom of Speech and Expression 181

matters or having a tendency to morally corrupt and debase persons likely to come
in contact with the impugned art and once it is found that the piece of art is neither
lascivious nor appeals to the prurient interest and it is found that the person who
is likely to view the impugned art would not tend to be depraved or corrupted,
though some might feel offended or disgusted, the test of obscenity is not
satisfied. Further, it was rightly pointed in Ranjit Udeshi v. State of
Maharashtra30 that it may, however, be said at once that “treating with sex and
nudity in art and literature cannot be regarded as evidence of obscenity without
something more. It is not necessary that the angels and saints of Michelangelo
should be made to wear breeches before they can be viewed. If the rigid test of
treating with sex as the minimum ingredient were accepted hardly any writer of
fiction today would escape the fate Lawrence had in his days. Half the book-shops
would close and the other half would deal in nothing but moral and religious
books which Lord Campbell boasted were the effect of his Act.” Bobby Art
International v. Om Pal Singh Hoon31 was another case where the SC drew a
distinction between nudity and obscenity. The petition was filed by a member of
the Gujjar community seeking to restrain the exhibition of the film Bandit Queen
on the ground that the depiction in the film was abhorrent and unconscionable
and a slur on the womanhood of India’ and the rape scene in the film was
suggestive of the moral depravity of the Gujjar Community. The court rejected
the petitioner’s contention that the scene of frontal nudity was indecent within
Art. 19(2)32 and § 5-B of Cinematographic Act 33 and held that the object of
showing frontal nudity of the humiliated rape victim was not to arouse prurient
feelings but revulsion for the perpetrators. Therefore, from this case it could be
clearly understood that if a particular script, movie or publication talks directly
of sex or showcases nude scenes but does not generate vulgarity or prurient
feelings but is there to create awareness and provide knowledge, then that content
won’t be termed as obscene.
The Hon’ble Supreme Court of India, in KA Abbas v. Union of India,34 held
that “the standards that we set for our censors must make a substantial allowance
in favor of freedom, thus leaving a vast area for creative art to interpret life and
society with some of its follies along with what is good; we must not look upon
such human relationships as banned in to and forever from human thought and
must give scope for talent to put them before society; the requirements of art and
literature include within themselves a comprehensive view of social life and not
only in its ideal form and that line is to be drawn where the average moral man
begins to feel embarrassed or disgusted at a naked portrayal of life without the
redeeming touch of art or genius or social value.” The Constitution protects the
right of the artist to portray social reality in all its forms. Some of that portrayal
may take the form of questioning values and mores that are prevalent in society.
From the above judgment the SC made it clear that one cannot cut from the
realities of life and a wider scope of interpretation should be laid down while

30 AIR 1965 SC 881.

31 (1996) 4 SCC 1.
32 Article 19(2), the Constitution of India.
33 Section 5-B, the Cinematographic Act 1952.
34 (1970) 2 SCC 780.
182 Contemprory Law Review [Vol. 1

interpreting art and literature. There were times when discussing about sex and
menstruation was a taboo in the society but these days the norms are changing
and today such issues are widely discussed and sex education is made mandatory
in schools. In another case, A German magazine by name ‘STERN’ having
worldwide circulation published an Article with a picture of Boris Becker, a
world renowned Tennis player, posing nude with his dark-skinned fiancée by
name Barbara Feltus, a film actress, which was photographed by none other than
her father. The Art. states that, in an interview, both Boris Becker and Barbara
Feltus spoke freely about their engagement, their lives and future plans and the
message they wanted to convey to the people at large, for posing to such a
photograph. Art. pictures’ Boris Becker as a strident protester of the pernicious
practice of “Apartheid”. Further, it was stated that the purpose of the photograph
was also to signify that love champions over hatred. It was observed that the
picture has no tendency to deprave or corrupt the minds of people in whose hands
the magazine Sports World or Anandabazar Patrika would fall. The picture
should be seen with the knowledge it wants to convey to the outer world. The
picture was not considered to be obscene. In a recent case on the movie KA
BODYSAPES35 it was observed that mere reference to homosexuals did not
amount to obscenity. The movie was made to provide knowledge and discuss the
rights of homosexuals and hence was within the ambit of Article 19(1)(a). 36
Further, from this it can be observed that if the content of the publication has
a nude or sexual effect to it, it is not considered to be obscene until it depraves or
corrupts individuals.
Reasonable Restrictions and Article 19(1)(a)
Freedom of speech and expression is a right guaranteed by the constitution
which is subjected to reasonable restrictions. It cannot be made absolute in order
to protect social order. Accordingly, under Article 19(2)37 of the Constitution of
India, the State may make a law imposing reasonable restrictions on the exercise
of the right to freedom of speech and expression “in the interest of the public on
certain grounds. In this context, it was observed in the case of Gopalan v. State
of Madras38 that The possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed to the governing authority of the country
to be essential to the safety, health, peace, general order and morals of the
community. What the constitution attempts to do in declaring the rights of the
people is to strike a balance between individual liberty and social control. Art.
1939 of the constitution gives a list of individual liberties and prescribes in the
various clauses the restraint that may be placed upon them by law so that they
may not conflict with public Welfare or generation. One such restriction comes
from obscenity. In Shiv Sena v. Sanjay Leela Bhansali Films Pvt. Ltd.40 It was
held that freedom of expression is of inestimable value in a democratic society
based on the rule of law and that the effect of words, title and scenes in a film has

35 (2016) SCC Online Ker 4530.

36 Article 19(1)(a), the Constitution of India.
37 Article 19(2), the Constitution of India.
38 (1950) SCC on line Mad 88.
39 Article 19, the Constitution of India.
40 2013 SCC on line Del 4085.
2017] Obscenity and Freedom of Speech and Expression 183

to be judged from the standards of reasonable strong minded, firm and courageous
man and not from that of a weak and vacillating mind. Freedom of expression
which is legitimate and constitutionally protected cannot be held to ransom by an
intolerant group of people. The fundamental freedom guaranteed under Art.
19(1)(a)41 can be reasonably restricted only for the purposes mentioned in Art.
19(2)42 and the restriction must be justified on the anvil of necessity and not the
quicksand of convenience or expediency. Freedom of speech and expression is a
very important right which is available to every individual and only reasonable
restriction is posed. Open criticism of government policies and operations is not
a ground for restricting expression. We must practice tolerance to the views of
others. Intolerance is as much dangerous to democracy as to the person himself.43
In the case of Central Board of Film Certification v. Yadavalaya Films44, a
Division Bench of the Madras High Court observed as under: “Freedom of
expression and speech has been recognized as one of the pre-eminent rights in a
democratic government, the touchstone of individual liberty.” Justice Cardozo of
the US Supreme Court characterized it as “the matrix of the indispensable
condition of nearly every other form of freedom.” Article 19(1)(a)45 of the
Constitution of India guarantees to every citizen the fundamental right to the
freedom of speech and expression.46 In the case of Picture International v.
Central Board of Film47 that artists, writers, playwrights and film makers are the
eyes and the ears of a free society. They are the veritable lungs of a free society
because the power of their medium imparts a breath of fresh air into the drudgery
of daily existence. Their right to communicate ideas in a medium of their
choosing is as fundamental as the right of any other citizen to speak. Our
constitutional democracy guarantees the right of free speech and that right is not
conditional upon the expression of views which may be palatable to mainstream
thought. Dissent is the quintessence of democracy. Hence, those who express
views which are critical of prevailing social reality have a valued position in the
constitutional order. History tells us that dissent in all walks of life contributes to
the evolution of society. Those who question unquestioned assumptions
contribute to the alteration of social norms. Democracy is founded upon respect
for their courage. Any attempt by the State to clamp down the free expression of
opinion must hence be frowned upon.48 It is true that the Constitution does
accommodate restrictions to be made to freedoms of speech and expression, but
these restrictions have to be judiciously extended to strike a balance between
creative liberty and what can only be seen as puritanical notions of public
morality.49 This can be clearly understood from the 2015 case of Devidas

41 Article 19(1)(a), the Constitution of India.

42 Article 19(2), the Constitution of India.
43 Ibid.
44 (2007) 2 MLJ 604.
45 Article 19(1)(a), the Constitution of India.
46 Article 19, the Constitution of India.
47 AIR 2005 Bom. 145.
48 Ibid.
49 Pratiek Sparsh Samantara and R. Srimukundan, ‘Revealing’ The Judicial Ambivalence on Obscenity:
A Case Comment on Aveek Sarkar v. State of West Bengal, p.132.
184 Contemprory Law Review [Vol. 1

Ramachandra Tuljapurkar v. State of Maharashtra,50 the magazine named

‘Bulletin’ published a poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) for
private circulation amongst the members of All India Bank Association Union.
The issue was whether under the “conception of poetic license and the liberty of
perception and expression, using the name of a historically respected personality
by way of allusion or symbol is permissible.” Court held that freedom of speech
and expression must be put within the ambit of absoluteness but freedom of
speech and expression by way of symbol, allusion, painting or writing does not
give liberty to offend. When community standards test is applied concerning the
name of the historically respected personality then concept of ‘degree’ comes in
and the test is applicable with more vigour.51
An individual has a right to express himself freely and this right is guaranteed
to him by the constitution. An artist, filmmaker, publisher, etc. through his
content has the freedom to freely express his views on various issues subject to
reasonable restrictions. Justice Hidayatullah on Article 1952 had quoted, “That
cherished right on which our democracy rests is meant for the expression of free
opinions to change political or social conditions or for the advancement of human
knowledge.”53
Conclusion
So, from all the cases cited and the discussion held above it can be clearly
observed that each and every person holds freedom of speech and expression
which is backed up by certain reasonable restrictions. Obscenity is a very vague
term and does not have a very précised and straightjacket definition. Justice
Brennan in Paris Adult Theatre I v. Slaton54 also spoke about vagueness in the
definition of obscenity. Obscenity has been interpreted by the courts by applying
various tests and has been identified from case to case basis. Morality and
indecency are tools which define obscenity but then they keep on changing with
changing norms of the society. There was a time when the infamous views of
individuals were challenged but now the time has changed and indifferent views
of individuals are identified. Nudity and sexual implications are not considered
obscene if they do not generate prurient feelings. Indian society has gradually
started embracing rapid changes around them and the same can be observed in
the judicial interpretations from Ranjit Udeshi v. State of Maharashtra55 till Jayan
Cherian v. Union of India.56 Obscenity is circumscribed and judged quantitatively
whereas morality has disentangled itself from confinement of narrow mind set
and respected subjectively. Ambiguity pertains as per the ‘definition’ of obscenity
but exceptions exist in the form of art, literature, scientific fact or imparting of
knowledge. Obscenity includes “what shouldn’t be” not “what it is”. Now the
problem that the Indian Court is required to tackle is while deciding whether a

50 Case Summary: Devidas Ramachandra Tuljapurkar v. State of Maharashtra, Law Mantra (Think
Beyond Others). available at http://lawmantra.co.in/case-summary-devidas-ramachandra-tuljapurkar-
vs-state-of-maharashtra/ , (visited on October 17, 2016).
51 Ibid.
52 Article 19, the Constitution of India.
53 AIR 1965 SC 881 (885) (paras 7 and 8) :(1965) 1 SCR 65: (1965) 2 Cr. LJ 8.
54 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), Supreme Court of the United States.
55 1965 AIR 881 1965 SCR (1) 65.
56 WP(C) No. 27418 of 2016 (B).
2017] Obscenity and Freedom of Speech and Expression 185

particular material is obscene or not. There is no particular statute governing the

same which throws a light on the ambiguity that exists in this sphere. There’s a
dire need for the legislature to enact a law which entirely focuses on obscenity in
order to eliminate the confusion and unreasonableness that exists.

****
 STATE OF TAMIL NADU v. K. BALU
V.P. Tiwari 
ABSTRACT
In modern times, it is widely accepted that the right to life,
liberty and property is the essence of a free society and that it
must be safeguarded at all times. The framers of our
Constitution are aware of the importance of these rights and
hence they have not only entrenched them in the Constitution,
but also made them justiciable and empowered the apex court
to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the
protection and enforcement of any of the fundamental rights. It
is a matter of great satisfaction that the Supreme Court of India
has played a key role in protecting these rights and perhaps
become one of the most active courts with great reputation,
independence and credibility. Expanding the horizon of Right to
Life guaranteed under Article 21 of the Constitution of India,
the apex court has held that Right to Life may include any aspect
of life which makes it dignified but not that which extinguishes
it and, therefore, any act or activity inconsistent with the
continued existence of life shall be constitutionally void. It has
been proved through statistics that main cause of road
accidents, which cause loss to life, liberty and property not only
of affected individuals, but also of all those who are dependent
on him, is drunk driving. The existence of liquor vends;
advertisements and sign boards drawing attention to the easy
availability of liquor lures even those who are not habitual
drinker and thus pose threat to life, liberty and property and
hence, the apex court held, these vends must be closed. This is a
humble effort of author to critically comment on the judgment
of State of Tamil Nadu v. K. Balu.1
________________________________________________
Keywords: Habeas Corpus; Quo warranto; road accidents;
liquor shop; National highway.
Introduction and Background
Road accidents are now globally recognised as a serious public health
problem. The problem is much more serious in our country where close to
500,000 road accidents caused nearly 146,000 deaths and left more than thrice
than that number injured.2 Over the years 2005 to 2015, total number of road

 Associate Professor of Law, Maharashtra National Law University, Nagpur, e-mail-

[email protected].
1 CIVIL APPEAL Nos .12164-12166 of 2016.
2 From the forward dated 25.05.20 written by Mr. Sanjay Mitra, Secretary, Government of India,
Ministry of Road Transport and Highways while presenting annual report of TRW on ‘Road Accidents
2017] State of Tamil Nadu v. K Balu 187

accidents, killings and injuries has increased by 14.2 per cent, 53.9 per cent and
7.5 per cent respectively.3 The analysis of road accident data 2015 reveals that
about 1,374 accidents and 400 deaths take place every day on Indian roads which
further translates into 57 accidents and loss of 17 lives on an average every hour
in our country.4
Drivers’ fault has been revealed as the single most responsible factor for road
accidents, killings and injuries on all roads in the country over a long period of
time. Drivers’ fault accounted for 77.1 per cent of total road accidents during
2015 as against 78.8 per cent during 2014. Within the category of drivers’ fault,
road accidents caused and persons killed due to exceeding lawful speed/over
speeding by drivers accounted for a share of 62.2 per cent (2,40,463 out of
3,86,481 accidents) and 61.0 per cent (64,633 out of 1,06,021 deaths)
respectively.5 Accidents and deaths caused due to “Intake of alcohol/drugs”
within the category of drivers ‘fault accounted for 4.2 per cent (16,298 out of
3,86,481 accidents) and 6.4 per cent (6,755 out of 1,06,021 deaths) respectively.
However, taking into account the total road accidents and total road accident
killings, the share of intake of alcohol/drugs comes to 3.3 per cent (16,298 out of
5,01,423 accidents ) and 4.6 per cent (6,755 out of 1,46,133 deaths) respectively.6
The Public Interest Litigations were filed in these High Courts to seek
removal of liquor shops from national as well as state highways including in
respect of those stretches of the national or state highways which pass through
the limits of any municipal corporation, city, town or local authority. Also prayers
were made to issue for directions for introduction of necessary safeguards to
ensure that liquor vends are not visible or directly accessible from the highway
within a stipulated distance of 500 metres form the outer edge of the highway, or
from a service lane along the highway. It would not be out of place to mention
that the Government of Haryana had appealed to the apex court for the fact that
they were not satisfied with the order of Punjab and Haryana High Court directing
them to ensure in its liquor policy that no liquor vend shall be located along the
national/state highways and that liquor shops are not accessible or visible from
those highways or from the service lanes running along such highways. On the
other hand, the Madras High Court was seized with a public interest litigation
seeking the removal of retail outlets for liquor on national and state highways.
The Madras High Court by a judgment and order of its Division Bench dated25
February 2013 granted time only until 31March 2013 for the relocation of
existing liquor shops being run on national/state highways, as against the request
for six months’ time by the State and hence appeal by them. It needs to be
mentioned that the proliferation of liquor shops on state highways (1731 shops
over 9520 kilometres in Tamil Nadu and a stretch of 291 kilometres on the

in India – 2015’ available on http://pibphoto.nic.in/documents/rlink/2016/jun/p20166905.pdf, (visited

on Feburay 1, 2017).
3 ‘Road Accidents in India-2015’ Govt of India, min of India available at
http://pibphoto.nic.in/documents/rlink/2016/jun/p20166905.pdf, p. 8, (visited on February 1, 2017).
4 Ibid.
5 ‘Road Accidents in India-2015’ Govt of India, min of India available at
http://pibphoto.nic.in/documents/rlink/2016/jun/p20166905.pdf, p. 2, (visited on February 1, 2017).
6 Ibid, p. 3.
188 Contemprory Law Review [Vol. 1

Panipat-Jalandhar section of NH-1, there are as many as 185 liquor shops)

indicates the easy availability of liquor on the state highways. Evidently within a
distance of a few kilometres a liquor shop is available to cater to the demand of
the users of the highways. Surprisingly, many of the liquor shops have
encroached on national highway land.7
Policy of the Government on Road Safety
In regulating the use of national and state highways, the safety of the users
of the road is of paramount concern. In order to ensure the safety of the travellers
on the highways, the Union Government had formulated for consideration and
adoption by the states a document titled “Model Policy/taxation/act/rules for
alcoholic beverages and alcohol”. The Model Policy inter alia made general
provisions relating to liquor vends. Para 92(2) of the Model Policy provides that:
(2) No licence for sale of liquor shall be granted to a retail vend selected
within a distance of 100 metres from any religious or educational
institution or hospital or outside the inhabited site of village /town/city
or any Office of the State/Central Government or Local Authorities or
within a distance of 220 metres from the middle of the State/National
Highways.
Explanation – For the purpose of this rule : (a) “National Highway” or
“State Highway” shall not include such parts of the National Highway
or State Highway as are situated within the limits of Municipal
Corporation, City or Town Municipal Council or such other authority
having a population of twenty thousand or more.8
The material which has been placed on record before Hon’ble Supreme Court of
India for deciding this case indicates that9 :
(i) India has a high rate of road accidents and fatal road accidents – one of
the advisories states that it is the highest in the world with an accident
occurring every four minutes;
(ii) There is a high incidence of road accidents due to driving under the
influence of alcohol;
(iii) The existence of liquor vends on national highways is in the considered
view of the National Road Safety Council and MoRTH–expert
authorities with domain knowledge–a cause for road accidents on
national highways;
(iv) Advisories have been issued by Union Government to the State
Governments and Union Territories to close down liquor vends on
national highways and to ensure that no fresh licences are issued in the
future. The reason why these advisories are confined to the national
highways is because of the distribution of legislative competence
between the Union and the States under the Seventh Schedule to the
Constitution. State highways fall under the domain of the states.

7 Para 21of the original Judgement dated December 15, 2016.

8 Para 14, Ibid.
9 Para 09 Ibid.
2017] State of Tamil Nadu v. K Balu 189

Directions of the Supreme Court

Using wide powers given under Article 14210 of the Constitution of India to
do complete justice, the apex court passed following directions and orders.11
(i) All states and union territories shall forthwith cease and desist from
granting licences for the sale of liquor along national and state highways;
(ii) The prohibition contained in (i) above shall extend to and include
stretches of such highways which fall within the limits of a municipal
corporation, city, town or local authority;
(iii) The existing licences which have already been renewed prior to the date
of this order shall continue until the term of the licence expires but no
later than 1 April 2017;
(iv) All signage’s and advertisements of the availability of liquor shall be
prohibited and existing ones removed forthwith both on national and
state highways;
(v) No shop for the sale of liquor shall be (i) visible from a national or state
highway; (ii) directly accessible from a national or state highway and (iii)
situated within a distance of 500 metres of the outer edge of the national
or state highway or of a service lane along the highway.
Provided that “In the case of areas comprised in local bodies with a
population of 20,000 people or less, the distance of 500 metres shall stand
reduced to 220 metres”12 However, the sale of liquor should be from a point
which is neither visible from a national or state highway or which is directly
accessible from a national or state highway.
(vi) All States and Union territories are mandated to strictly enforce the above
directions. The Chief Secretaries and Directors General of Police shall within
one month chalk out a plan for enforcement in consultation with the state
revenue and home departments. Responsibility shall be assigned inter alia to
District Collectors and Superintendents of Police and other competent
authorities. Compliance shall be strictly monitored by calling for fortnightly
reports on action taken.
Critique of the Judgment
India is a welfare state and Supreme Court of India is considered to be
sentinel of the Fundamental Rights of its citizens. Judiciary, as has been stated in
various judgments, has not only the responsibility, but a constitutional duty to

10 Article 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery etc. (1)
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it, and any decree so passed
or orders so made shall be enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in
such manner as the President may by order prescribe (2) Subject to the provisions of any law made in
this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have
all and every power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any contempt of
itself.
11 Para 24 of the original Judgement dated December 15, 2016.
12 Added vide para 22 of the judgment pronounced on March 31, 2017 in response to the applications
(nearly 68) basically for (i) extension of time for compliance, in certain cases; or (ii) modification or,
as the case may be, recalling the judgment delivered by Supreme Court on December 15, 2016 on the
subject.
190 Contemprory Law Review [Vol. 1

vigilantly guard the Rights of the citizens. The Supreme Court of India is perhaps
one of the most active courts when it comes into the matter of protection of Rights
of not only the citizens but also of non-citizens. It has great reputation of
independence and credibility. The judgment delivered by Hon’ble Justice Dr. DY
Chandrachud is another feather in the cap of apex court. The orders passed and
direction issued under this case reminds me a Hindi story written by Munshi
Premchand ‘Panch Parmeshwar’, where he equates judges to God. Even in this
case, the decision is going a long way in saving hundreds and thousands of
innocent human lives, which could have brutally ended on highways due to drunk
driving. The decision is going to help not only the individuals and families from
irreparable losses and sufferings, but will also contribute to the society in
safeguarding and promoting its social and economic capital. Hon’ble Justice
Chandrachud has rightly held that ‘Human life is precious’13 and the apex court
must enforce their constitutional right to lead not only a life, but with dignity and
self-worth. The researcher is tempted to quote a paragraph from the judgment,
which is depicting the turning point, where we stand today, and our lives becomes
more meaningful on this occasion, when we are developing at a rapid speed. To
quote: -
“...As the road network expands in India, road infrastructure being an
integral part of economic development, accidents profoundly impact on
the life of the common citizen. For a nation on the cusp of economic
development, India can well avoid the tag of being the accident capital
of the world. Our highways are expanding, as are the expressways. They
provide seamless connectivity and unheralded opportunities for the
growth of trade and industry and for the movement of goods, persons
and capital. They are the backbone of the freedom of trade and
commerce guaranteed by Article 301 of the Constitution. Our highways
are dotted with sign boards warning of the dangers of combining speed
and alcohol. Together, they constitute a heady cocktail. The availability
of liquor along the highways is an opportunity to consume. Easy access
to liquor shops allows for drivers of vehicles to partake in alcohol, in
callous disregard to their own safety and the safety of others. The
advisories of the Union government to the states are founded on a
logical and sound rationale and hence would equally apply to state
highways”14
The Apex Court has quoted following justifications in support of above
directions: -
(i) Usually first and foremost, it is trite law that in matters of policy, in this
case a policy on safety, the court will defer to and accept a considered
view formed by an expert body.
(ii) Secondly, the policy of the Union Government is to be supported for the
fact that this is based on statistics and data which make out a consistent
pattern year after year.

13 Para 10 of the original Judgement dated December 15, 2016, p. 8.

14 Para 10, Ibid, p. 8.
2017] State of Tamil Nadu v. K Balu 191

(iii) Thirdly, the existence of liquor vends on highways presents a potent

source for easy availability of alcohol. The existence of liquor vends;
advertisements and sign boards drawing attention to the availability of
liquor coupled with the arduous drives particularly in heavy vehicles
makes it abundantly necessary to enforce the policy of the Union
government to safeguard human life.
(iv) Fourthly, the Court is enforcing the right to life under Article 21 of the
Constitution based on the considered view of expert bodies.
(v) Fifthly, if the liquor ban is enforced on National Highways and not
State Highways, it would be violative of Article 14 of the Constitution
of India. The apex court held that ‘No distinction can be made between
national and state highways in regard to the location of liquor shops. In
regulating the use of national and state highways, the safety of the users
of the road is of paramount concern. It would defy common sense to
prohibit liquor shops along national highways while permitting them
on state highways. Drunken driving as a menace and as a cause of road
accidents is a phenomenon common to both national and state
highways. Nor, is it a plausible defence to urge that while it is
impermissible to drink and drive on a national highway, it is
permissible to do so on a state highway.’15
(vi) Sixthly, the sale of liquor should also be prohibited on stretches of
National and State Highways which fall within the limits of municipal
or local authority because there is no rational basis to exclude stretches
of national highways and state highways which fall within the limits of
a municipal or local authority (with a population exceeding a stipulated
figure) from the ambit of the suggested prohibition. Where a national
or state highway passes through a city, town or through the area of
jurisdiction of a local authority, it would completely deny sense and
logic to allow the sale of liquor along that stretch of the highway. Such
an exclusion would defeat the policy since the presence of liquor shops
along such stretches of a national or state highway would allow drivers
to replenish their stock of alcohol, resulting in a situation which the
policy seeks to avoid in the first place. Once it is an accepted position
that the presence of liquor vends along the highways poses a grave
danger to road safety an exception cannot be carved out to permit the
sale of liquor along a stretch of the highway which passes through the
limits of a city, town or local authority. Such an exception would be
wholly arbitrary and violative of Article 14.16
(vi) Court also held that that the power of the states to grant liquor licences
is undoubted, but it should be done in a manner that would ensure that
the consumption of alcoholic liquor does not pose dangers to the lives
and safety of the users of national and state highways.17

15 Para 20 of the original Judgement dated December 15, 2016 p. 17.

16 Para 14 of the original Judgement dated December 15, 2016, p. 13.
17 Para 13 of the original Judgement dated December 15, 2016, p. 17.
192 Contemprory Law Review [Vol. 1

(viii) The court further held that though, excise duty is an important source
of revenue to the states, a prohibition on the grant of liquor licences to
liquor shops on the national and state highways would only regulate the
grant of such licences18.
(ix) The prohibition is also justified because the State is Directed by Article
47 of the Constitution of India to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and
of drugs which are injurious to health.19
(x) The prohibition is also justified for the fact that there is no fundamental
right under Article 19(1)(g) to trade in liquor as has been held by the
apex court in a number of cases including State of Bihar v. Nirmal
Kumar Gupta.20
The Supreme Court of India has further clarified that:
“….this Court while exercising its jurisdiction has neither formulated
policy nor (as we shall indicate) has it assumed a legislative function.
The basis and foundation of the judgment delivered on 15 December
2016 is (i) the policy of the Union Government, formulated by the
Union Ministry of Road Transport and Highways (MoRTH); (ii) the
decision of the National Road Safety Council (NRSC), which is an
apex body for road safety established under Section 215 of the Motor
Vehicles Act, 1988; (iii) advisories issued by the Union Government
to the states over a period of one decade; and (iv) the Parliamentary
mandate of zero tolerance for driving under the influence of alcohol,
evident in Section 185 of the Motor Vehicles Act, 1988. The judgment
of this Court extensively reproduced the statistics on road accidents
from official data released by MoRTH in its Transport Research
Wing, the decisions of NRSC and the advisories issued over the
previous decade by the Union Government. The judgment of this
Court has inter alia adverted to the decision taken in a meeting held
thirteen years ago by NRSC to the effect that licences for liquor shops
should not be given along the national highways. Besides this, the
Court has also relied upon advisories issued by MoRTH to the States
and Union Territories on 26 October 2007, 1 December 2011, 18
March 2013 and 21 May 2014. Section 185 of the Motor Vehicles Act
is indicative of a Parliamentary intent to penalise driving under the
influence of alcohol. The conclusions which have been drawn by this
Court in paragraph 9 of its judgment, which we extract below are
hence based, on the considered policy of the Union Government.”21

18 Para 13 of the original Judgement dated December 15, 2016, p. 17.

19 Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve
public health: The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties and, in particular, the
State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
20 (2013) 2 SCC 565, Para 12 of the original Judgement dated December 15, 2016, p.10.
21 Added vide para 14 of the judgement pronounced on March 31, 2017 in response to the applications
(nearly 68) basically for (i) extension of time for compliance, in certain cases; or (ii) modification or,
as the case may be, recalling the judgment delivered by Supreme Court on December 15, 2017 on the
2017] State of Tamil Nadu v. K Balu 193

However, it has been widely reported that India’s highway liquor ban has forced
some of the most prominent hotel chains in the country such as the Taj, Oberoi,
Hyatt and Accor groups to stop serving alcohol to guests at key locations from
April 1, 2017, threatening an estimated toll of Rs.65,000 crore in revenue
foregone by state governments and the hospitality industry.22 The move could
lead to states losing overall tax revenue of Rs.50,000 crore, restaurants and pubs
taking a hit of Rs.10,000-15,000 crore and 100,000 people going out of work.
People believe that this ban is going to add more fury to already struggling Indian
youths with the problem of unemployment. The world has become a global
village and India has become destination to many foreigners, who come here for
tourism or for business (including diplomats for meetings etc.). In their culture,
liquor is considered to be part of their meals. They would really find it very
difficult to live without liquor. Under these circumstances, they will try to fetch
it from outside, or some illegal vends. The liquor is being banned because it
causes accidents on roads. But, the poor truck drivers cannot afford to take liquor
from five star hotels, which are very costly and which are meant to cater to a
different segment of people, basically corporate people, for whom it becomes
important to take a few pegs as a relaxant to enable sound sleep. Small vendors
can easily shift their shops to some other places, but the five star hotels cannot be
shifted due to huge investment. After talking to various stakeholders, visiting
various places to assess the real situation, the researcher feels that it would have
been just for Hon’ble Supreme Court of India to carve some exception in favour
of three / five or seven star hotels just like it has created three exceptions in favour
of:
(i). In the case of areas comprised in local bodies with a population of 20,000
people or less, the distance of 500 metres shall stand reduced to 220
metres
(ii). In the case of those licences for the sale of liquor which have been
renewed prior to 15 December 2016 and the excise year of the concerned
state is to end on a date falling on or after 1 April 2017, the existing
licence shall continue until the term of the licence expires but in any
event not later than 30 September 2017; and
(iii). In so far as the States of Meghalaya and Sikkim are concerned, it would
suffice if the two states are exempted only from the application of the
500 metre distance requirement provided in paragraph 24(v)(iii) of the
judgment of this Court on 15 December 2016.23
Evaluation
Human life is precious and there is no retake. Once it has gone, it has gone
forever and brings utmost pain and suffering for those who are left behind. When

subject available on: -http://judis.nic.in/supremecourt/list_new2_Pdf.asp? FileName=44707, (visited

on May 11, 2017).
22 Liquor ban impact estimated at Rs. 65,000 crores in revenue foregone by states, hospitality industries’
Ratna Bhushan etc., The Economic Times, available at
http://economictimes.indiatimes.com/news/industry/cons-products/liquor/liquor-ban-impact-
estimated-at-rs-65k-crore-in-revenue-foregone-by-states-hospitality-
industry/articleshow/57980528.cms, (visited on May 11, 2017).
23 The State of Tamil Nadu Rep. By Sec. v. K. Balu. available at
http://judis.nic.in/supremecourt/list_new2_Pdf.asp?FileName=44707, (visited on May11, 2017).
194 Contemprory Law Review [Vol. 1

it goes it creates vacuum, not only in the family of the departed soul, but also in
the society. It does not only affect departed soul’s economy, but also affects the
social capital and economy of the nation. It is a settled law that death is unnatural
and right to live with dignity until the natural span of one’s life is guaranteed by
Article 21 of the Constitution of India. Since right to life does not include right
to die, hence it must also exclude right to be killed negligently. The judgment of
the apex court is one of the best judgments pronounced in recent times and would
go a long way in saving lakhs of lives from accidental deaths on highways.
However, the researcher feels and recommends that keeping in mind the eating
habits and culture of our foreign guests (which has been adopted by many of us),
some exception may be created for three/five star hotels, also because they are
out of reach of poor truck drivers. In the end I wish to endorse Hon’ble Dr. Justice
D.Y. Chandrachud, who held that: - “The Constitution preserves and protects the
right to life as an over-arching constitutional value. The preservation of public
health and of public safety is an instrument of enhancing the right to life as a
constitutionally protected value. Where a balance has to be drawn between
protection of public health and safety and the need to protect road users from the
menace of drunken driving (on the one hand) and the trade in liquor (on the other
hand) the interests of the latter must be subordinate to the former.”24

****

24 Ibid.
THE CHANCELLOR, MASTERS AND SCHOLARS OF THE
UNIVERSITY OF OXFORD v. RAMESHWARI PHOTOCOPY
SERVICES
Ragini P. Khubalkar
ABSTRACT
Intellectual Property Rights have the origin in the man’s
intellect. The rights over intellectual property means the right
over the ideas which are expressed or which are converted into
objects. One characteristic shared by all types of IPR is that
they are essentially negative: these are rights to stop others
doing certain things, in other words, to stop pirates,
counterfeiters, imitators and even in some cases third parties
who have independently reached the same ideas, from
exploiting them without the license of the right-owner.
Intellectual Property is a genus and the various forms of it are
Patent, Trade Mark, Trade Designs, and Copyright etc. When
any person without a license from the owner of the Copyright
or the Registrar of Copyrights or in contravention of the
conditions of a license does anything which violates the
exclusive rights of the copyright owner, it constitutes an
infringement of the Copyright. In University of Delhi case, the
Delhi High Court has dealt with an interesting conflict
between protection of the right and infringement of the rights
of copyright holder, during the process of photocopying of
some part of the books, at the authorised photocopying centre
of the University. The Court has pertinently held that private
rights will have to yield to larger social goals while
interpreting the concept of ‘fair use’. The author has
endeavoured to analyse this path-breaking case which has
carved out new IP Jurisprudence.
--------------------------------------------------------------------------
Keywords: Copyright infringement; fair use; Photocopy;
Right to Access.
Introduction and Background
In the wake of growing awareness amongst the copyright holders with respect
to protection of their rights and the issues about the various acts of infringement
of copyright by novel modes, arose an interesting issue as to whether the act of
photocopying from different books, will amount to infringement of copyright.
Prima facie, this is without the consent of the copyright owner and the act of
photocopying violates his copyright and therefore it amounts to infringement1.
However, the act of photocopying for its use as ‘material for study’ can fall in the

 Assistant Professor of Law, Maharashtra National Law University, Nagpur, e-mail:

[email protected].
1 Section 51 of the Copyright Act 1957 defines infringement of the Copyright in general terms which is
applicable to all works protected under the Act.
196 Contemprory Law Review [Vol. 1

purview of exceptions, thereby giving a premium for photocopying. This

interesting issue was very well considered by the Delhi High Court in the matter
against University of Delhi and Rameshwari Photocopy services.
In an appeal from the decision of Single Bench of the Delhi High Court,2 a
Division Bench of the Delhi High Court comprising Hon’ble Pradeep Nandrajog
and Yogesh Khanna J.J. on 9th December, 2016, rendered an important decision
and upheld the argument that the act of photocopying from different books by
University of Delhi will not amount to infringement of copyright. It further held
that, making copies of the course pack through photocopying services will come
under the exceptions provided under Section 51(1) (a) (i) of the Copyright Act,
1957 and restored the trial on factual aspects. The controversy raised in the matter
is interesting in view of the niceties touched by the court, while deciding the case.
This article seeks to summarise the key points of the case and the rationale of the
court for its judgment.
The factual matrix needs to be understood in brief. The Chancellor, Masters
and Scholars of the University of Oxford, was the original plaintiff in this
particular case along with leading publishers such as Oxford University Press
(OUP) and Cambridge University Press (CUP) and their offices situated in India.
Rameshwari Photocopying Services was the original defendant. University of
Delhi was arrayed as a second defendant /respondent and other bodies of students
and academicians viz., ASEAK and an association called SPEAK (Society for the
Promotion of Educational Access and Knowledge) intervened.
Rameshwari Photocopying Services, is a small photocopy shop having a
license within the premises of University of Delhi. It so happened that the
professors imparting education in the University of Delhi authorised the
preparation of course packs and Rameshwari Photocopying Services was
entrusted the work of photocopying the pages from the books published by the
plaintiffs and after binding the same, to supply them to the students charging 50
paisa per page.
The plaintiffs/appellants case was that the inclusion of specific pages of its
publication in the course pack by the University of Delhi and making photocopies
of it by the Rameshwari Photocopy Services (respondent no.1) amounted to
institutional sanction for infringement of copyright in those books. Further the
contention of the plaintiffs was that section 52(1) (i) was not applicable since
reproduction by Rameshwari photocopy Services with the assistance of Delhi
School of Economics could not be classified as ‘reproduction by a teacher’ or a
pupil in the course of instructions. While raising several aspects the plaintiffs also
relied upon certain provisions of the Berne Convention.3 While the defendant/
respondents pleaded that the preparation of course packs by it amounted to ‘fair

2 The Single Judge of the Delhi High Court, Justice Rajiv Sahai Endlaw, dismissed the suit of the
applicant/plaintiff on September16, 2016 and held that photocopying by the Delhi University in the
form of course pack do not violate copyright of the owner of the work. (CS(OS) 2439/2012, I.As. No.
14632/2012).
3 Article 9(1) specifically provides ‘Reproduction’. It means ‘copying’ and this basic right of the author
was first introduced into the convention in the Stockholm Act of 1967, before that time it had been
assumed that authors enjoyed the reproduction right regarding unauthorized printing or multiplication
of copies from each day. At the Stockholm Revision Conference, it was considered that reproduction
right should be specifically guaranteed and Article 10 of the Berne Convention.
2017] The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari 197
photocopy services
use’ within the meaning of sections 52(1) (a) and (h) of the Copyright Act 1957.
The University of Delhi pleaded that section 52(1) (i) of the Copyright Act 1957,
permits students and educational institutions to copy portions from any work for
research and educational purpose.
After the decision of the original suit, the matter was carried before the
Division Bench, which has analysed the intricate issues, while interpreting the
terms in the exceptions clause and laid down the law which is very significant in
view of the rampant acts of photocopying. The learned single judge elaborately
considered various issues and various provisions.
The suit was contested by both the parties extensively. The court held in
favour of the plaintiff, clarifying that there is no infringement in case of providing
study material in the form of course pack, to the students4. Against this judgement
of the Single Bench, an appeal came to be filed before the Division Bench of
Delhi High Court.
In appeal before the Division Bench, the Delhi High court has further
considered the intricate issues and discussed the law in detail. On the point of
granting injunction, the court refused to give injunction to photocopying for the
course pack, but has remanded the case for conducting the trial on specific issues
of fact which could be decided on the basis of expert evidence which could come
on record. The judgment is very significant and landmark, for a student of IPR
since it deals with the aspect of overriding wider public interest over the
individual right of copyright holder.
The main legal issue which arose for consideration before the Division Bench
of Delhi High Court was about interpretation of Section 52(1)(i) of the Copyright
Act in relation to infringement of copyright by a ‘teacher or a pupil in the course
of instruction in Section 52(1)(a)(i)’. The sub issue was what is the phrase ‘by a
teacher or pupil in the course of’ construction in Section 52(1)(i). While arguing
the case, in support of their submissions, a number of foreign judgements were
cited by the learned counsels of both the parties.
For proper understanding of the controversy, a bare look at the provision of
Section 52 is necessary. Section 52 (1)(a),(h) and (i) of the Copyright Act, read
as under5:-
Section 52 Certain acts not to be Infringement of Copyright-(1) The following
acts shall not constitute an infringement of copyright, namely:
(a) a fair dealing with any work, not being a computer programme, for the
purposes of-
(i) private use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current affairs, including the reporting of a lecture
delivered in public.
(b) the publication in a collection, mainly composed of non-copyright matter,
bona fide intended for the use of educational institutions, and so described in

4 The Single Judge of the Delhi High Court, Justice Rajiv Sahai Endlaw, dismissed the suit of the
applicant/plaintiff on 16th September, 2016 and held that photocopying by the Delhi University in the
form of course pack do not violate copyright of the owner of the work. (CS(OS) 2439/2012, I.As. No.
14632/2012).
5 Wadehra B.L, LAW RELATING TO INTELLECTUAL PROPERTY, 5th ed. 2011.
198 Contemprory Law Review [Vol. 1

the title and in any advertisement issued by or on behalf of the publisher, of

short passages from published literary or dramatic works, not themselves
published for the use of educational institutions, in which copyright subsists:
Provided that not more than two such passages from works by the same
author are published by the same publisher during any period of five years.
Explanation.- In the case of a work of joint authorship, references in this
clause to passages from works shall include references to passages from
works by any one or more of the authors of those passages or by any one or
more of those authors in collaboration with any other person;
(j) the reproduction of any work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers, to such questions;
A bare reading of these provisions show that an attempt is made to maintain
a balance between the rights of the creator’s with that of the user’s rights to access
the work. The intention of the legislature can be gathered from the list of
exceptions provided under Section 52 of the Act, which again shows that a proper
balance is sought to be maintained in the copyright system.6
The learned Single Bench of Delhi High Court has opined that the clause (h)
would be applicable where there is publication of a collection comprising mostly
non copyrightable materials. The learned Single Bench has highlighted the
difference between ‘reproduction’ and ‘publication’ and has held that the concept
of publication would be the preparation and issuing of material for public sale
and would exclude use by students for teaching purpose. The word ‘reproduction’
which finds a purpose in clause (i) has been given its ordinary meaning by the
learned single Judge (though not expressly so stated in the judgment).
During the course of arguments, the appellant pointed out the historical origin
of the copyright law and the reasons for extending protection to copyrighted work
for the limited time. It was contended that the institute of copyright stands on the
boundary between the private and the public. They contended that copyright is
associated with our sense of privacy and our conviction, at least in theory, that it
is essential to limit the power of the state. The counsels for appellants also
referred to the definitions provided under Section 14of the Copyright Act, 19577
and highlighted the word ‘substantial’ and argued that the legislative intent was
exclusivity in the exploitation of copyright even with respect to a substantial part
thereof in the copyright holder. It is further pleaded by the counsel that the right
to reproduce the work in any form was exclusively that of the author and the right
conferred by Section 52 are the privileges and therefore while exercising those
privileges with respect to work of another, the interest of the copyright owner has
to be always considered.

6 ‘Delhi University Photocopy Shop Judgment: A Landmark in The Access to Knowledge Movement
in India.’ by Dr. Arul Sacaria, available at: http://www.livelaw.in/delhi-university-photocopy-shop-
judgement-landmark-access-knowledge-movement-india/, (visited on January 5, 2017).
7 As per Section 14 of the Copyright Act 1957, copyright would mean the exclusive right to do or
authorise the doing of the acts enumerated in various clauses of Section 14 in respect of the work or
any substantial part thereof.
2017] The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari 199
photocopy services
Another submission of the appellant’s counsel was on the subject matter of
the work and the activities to be covered by different clauses of Section 52 of the
copyright Act. On the basis of the activities the counsel further analysed about
the limitation in the use of copyrighted material while performing the activity that
some works are expressly or implied limited by considering the public policy. It
is argued by them that ‘fair dealing’ expressed in clause (a) and clause (h) was
the manifestation of fair use. The contention of the appellant was that a direct
connection between the teacher and pupil had to exist in the course of instruction,
to avoid infringement. Whereas the Division Bench of the High Court has held
that in ‘publication’ to be interpreted by common sense i.e. the targeted audience
has to be kept in mind while deciding whether publication of a work takes place
or not.
While countering the argument of the appellant, the counsels for the
respondents submitted that the course pack is prepared by the University of Delhi
as per the syllabus of that University and would make no sense to an outsider and
would appear to be irrelevant for a third person. It is for limited use of the students
attending the particular subject lecture for a discussion in the course of
instructions as reference material. It was further argued that the literacy level is
very low and purchasing power is also weak in our country, that even compulsory
licensing had failed to achieve the desired object of dissemination of knowledge.
The respondent’s counsel argued for liberal interpretation of the clause (i).
The Division Bench of the Delhi High Court, after hearing both the sides
discussed about the importance of education and promotion of equitable access
to knowledge. It is observed that the purpose of use would determine whether it
is fair use and in the context of teaching and use of copyrighted material, the
fairness in the use can be determined on the touchstone of extent justified for
purpose of education. The court opined that the teaching is a process of imparting
of instructions or knowledge and education is the process involving
communication between students and teachers and not limited by classroom
teaching. Thus, the court rejected the argument of the appellant that the four
factors on which fair use is determined in abroad would guide fair use of
copyrighted material during course of instruction and also rejected the adverse
impact argument raised by the appellant on the market of the copyrighted work
due to course pack photocopying as the students are not considered as future
potential buyers, to buy thirty or forty reference books.
The word ‘reproduction’, the phrase ‘by a teacher or a pupil’ and ‘in the
course of instruction’ were the most debated terms in the course of argument.
While dealing with the word ‘reproduction’, court opined that making more than
one copies of the original, i.e., photocopying contemplated by the statute. The
court gave wide interpretation to the term ‘course’ and held that it means the
entire process of education as in a semester or the entire programme of education
as in a semester. It is held that the Section 52(1)(i) states that the reproduction of
a work by a ‘teacher/ pupil in the course of instruction’ would not constitute
infringement. The question before the court was whether the interpretation of this
section was restricted to an individual teacher and an individual pupil or whether
it would extend to an institution and its students. The Court unequivocally held
that it cannot be so restricted especially when considering the societal realities.
200 Contemprory Law Review [Vol. 1

Education in India has for long been institutionalized and therefore, the law
cannot and should not be interpreted in such a fashion that it does not reflect the
realities of our education system. The second main contention was with respect
to the interpretation of the term ‘course of instruction’. The plaintiffs contented
that this term must be limited to lectures and tutorials, where the teacher is
directly interacting with the pupils and in doing so, is using the copyrighted work.
The Court did not accept this contention and held that the legislature specifically
chose to use the word instruction rather than lecture, and therefore, the
interpretation of the term ‘instruction’ cannot be limited to that of lecture.
The court also considered at length the foreign judgement of the New
Zealand court,8 but at the end it expresses its inapplicability to India due to
amendment in provisions of the Copyright Act of New Zealand.
The court held that the law in India would not warrant an approach to answer
the question by looking at whether the inclusion of the copyrighted work in the
course pack has become a textbook, but by considering whether the inclusion of
the copyrighted work in the course pack justified by the purpose of the course
pack i.e. for instructional use by the teacher to the class. While considering this
delicate aspect it is held that this would require an analysis of the course pack
with reference to the objectives of the course, the content and the list of suggested
readings given by the teacher to the students, which would require expert
evidence. The court has laid down the law, as regards the major controversy,
however, remanded the case for trial on the limited issues as specified in the
judgment.
The Division Bench of Delhi High Court corrected the decision given by the
Single Bench about the issue of ‘publication’ and held that it need not be for the
benefit of or available to or meant for reading by all the members of the
community. It is further held that a publication would have the element of profit,
which would be missing in the case of reproduction of work by a teacher to be
used in the course of instruction while imparting education to the pupil. The Court
further held that the argument concerning use of agency as irrelevant. It also
rightly rejected the argument that the University of Delhi or Rameshwary
photocopying services was making any profit out of photocopying.
The remand of the case to the learned Single Bench of Delhi High Court, was
an interesting turn, since it paved the way for reopening of the entire controversy
with a desire that each of the relevant issue will be reconsidered from all possible
angles. The case assumed a lot of significance amongst the IP law experts and the
final outcome was anxiously awaited. However, unexpectedly, after the
reopening of the case before the Single Bench, instead of contesting the matter
on merits, the plaintiffs have abruptly withdrawn the civil suit, thereby leaving
the controversy undecided.9 Further, all the International publisher in their joint
public statement said, “We support and seek to enable equitable access to
knowledge for student and we understand and endorse the important role that

8 (1991) 2 NZLR 574 Longman Group Ltd. High Court of New Zealand.
9 On March 9, 2017 the Petitioners Oxford University Press, Cambridge University Press, and Taylor
and Francis had withdrawn their copyright suit against Delhi University and Rameshwari Photocopy
Centre. (Read more at: http://www.livelaw.in/sc-moved-du-photocopy-case-judgment/ (visited on
May 3, 2016).
2017] The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari 201
photocopy services
course packs play in the education of students…” It shows that the exception
provided under the Indian Copyright Act, of fair use, is accepted to all and
widened its horizon. The plaintiffs having the dominus, had chosen to withdraw
the suit. One more development needs attention, the Indian Reprographic Rights
Organisation (IRRO) has filed a Special Leave Petition before the Supreme Court
challenging the judgment passed by the Division Bench of the Delhi High Court
on December 9, 2016. However, in view of the withdrawal of the suit, the
Supreme Court refused to admit this Appeal. The controversy was not decided on
merits by the Supreme Court. Nonetheless, the issues raised in the University of
Delhi case and the arguments advanced have already charged the IP law experts,
to critically analyse every possible angle. Since the factual scenario under which
the litigation was started is not uncommon in India, the issues involved do not
lose its significance.
Evaluation
This decision in University of Delhi case (as popularly known) as rendered
by the Division Bench, is a landmark decision since it takes in to consideration
the controversy which is associated with routine activities in the universities in
India. The preparation of course packs by photocopying the textbooks, for the
purpose of consolidating the material is not uncommon, in most of the
universities. Although the rights of copyright holder needs protection, but when
confronted with the issue of use of the material for studies, a wider interpretation
of the provisions was definitely warranted.
Despite the subsequent withdrawal of the suit the interesting issues touching
various aspects of IP law, are already decided and the law is laid down. The
University of Delhi case has brought into limelight the controversy about possible
infringement of copyright. The case assumes significance in view of the
discussion of the court on the finer aspects of IP law. Such kind of overhauling
of the intricate issues of the IP law is always desirable in order to get the legal
position clarified. The issue is most likely to crop up in similar situations of
photocopying in the University of Delhi or elsewhere. The issues raised in
University of Delhi case and the observations of the court in the University of
Delhi case have now opened a new spectrum for IP law students.
This decision will prove to be one of the biggest landmarks in IP
jurisprudence the world over. Significantly, it spells out that private rights will
have to yield to larger social goals which have to be interpreted widely. Much
like the Supreme Court decision in the Novartis case, this decision too makes it
amply clear that while India will be guided by foreign precedents, it will carve
out its own IP jurisprudence and interpret the law in a way that suits its own
societal requirements.

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