Chanakya National Law University

Journal
 Chanakya National Law
University Journal
Vol. 9 2020-21

Cite this volume as CNLU LJ (9) 2020-21

2020-21
Price: Rs. 1000

© 2020-21 Chanakya National Law University, Patna.

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ISSN 0976-805X

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Chanakya National Law University,
Patna-800001.

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 Chanakya National Law
University Journal
Patron-in-Chief
Hon’ble Chancellor
Chief Justice
Patna High Court

Patron
Hon’ble Justice Smt. Mridula Mishra (Retd.)
Vice Chancellor
Chanakya National Law University, Patna

A dvisory Panel

Hon’ble Mr. Justice Naveen Sinha

Judge
Supreme Court of India

Hon’ble Mr. Justice Ashutosh Kumar

Judge
Patna High Court

Hon’ble Mr. Justice Anil Kumar Upadhyay

Judge
Patna High Court

Prof. Dr. R. Venkata Rao

Chairperson
Vivekananda School of Law and Legal Studies (VSLLS),
Vivekananda School of English Studies New Delhi
Visiting Professor
Chanakya National Law University, Patna
 Prof. Srikrishna Deva Rao
Vice Chancellor
National Law University, New Delhi

Prof. Dr. S. Sivakumar

Professor
ILI, New Delhi
Visiting Professor
Chanakya National Law University, Patna.
 CNLU Law Journal

Board of Editors

Student Editors

Shubham Jaiswal Nandita Jha

Shruti Shikha Jyotika
Madhu Deepa Rani

Faculty Editors

Shri Manoranjan Prasad Srivastava

(Retired District Judge)
Regisrar
Chanakya National Law University, Patna

Dr. B. R. N. Sharma
Associate Professor
Chanakya National Law University, Patna

Dr. P. P. R ao
Associate Professor
Chanakya National Law University, Patna

Dr. Manoranjan Kumar

Assistant Professor
Chanakya National Law University, Patna
 Table of Contents

A rticles

Reworking Labour Laws amid Covid-19 Crisis

-A Need Or A Reckless Strategy?
Mridula Mishra & Pallavi Shankar ............................................... 1

Vulnerability of Human Rights Ensuing the

Pitfall of Judicial Review In India!
Deeksha Sharma ........................................................................... 11

A Critical Analysis of Trial by Media

Neha Das ...................................................................................... 22

Application of Economic Tools in Environment & Law: A Step

towards Sustainable Development and Green Economy in India
Divyanshu Gupta .......................................................................... 40

Need For Mediation in Healthcare in India

Rishabh Sharma ............................................................................ 59

Child Marriage: Barring The Rights of the Child Bride

Shubhangi Komal ......................................................................... 70

Different Strands of IP In Sports & E-Gaming

Industry: Exploring The Horizons
Arnav Bishnoi & Achint Johri ...................................................... 89

Emerging Value of the Insolvency and Bankruptcy Code, 2016

Ashok Sharma ............................................................................. 108
Fundamental Breach Under Uncisg-The Delphic Enigma
Saurabh Tiwari ............................................................................ 117

Relevance of Health Economics, Law &

Policy for Economic Growth
Shivani Mohan & Shweta Mohan ............................................... 132

Insanity as a Defense
Shivanshu Bhardwaj ................................................................... 146

Legal Recognition of Same-Sex Marriage Rights in India

Shivam Garg ............................................................................... 158

The Medical Termination of Pregnancy

ACT, 1972 – A Critical Analysis
Aparna S ..................................................................................... 174

Merger Control & Taxation of Cross-Border

Merger and Acquisitions in Australia, New
Zealand and India: A Comparative Analysis
Avin Tiwari & Gaurav Shukla .................................................... 186

Nationalism: A Curb to Freedom of Speech and Expression?

Rahul Kumar ............................................................................... 204

Scope of Arbitration In Family Law: Analysis in Light of

Developments in Foreign Jurisdiction and Jurisprudence
Alex K. Koshy .............................................................................. 220

Special Marriage Act (1954) as a Precursor

of Uniform Civil Code
Brijraj Deora .............................................................................. 234
Local Working Requirements in the Patents
Act, 1970: A Critical Analysis
Sakshat Bansal & Ananya Vajpeyi ............................................. 244

Reappraising the Corporate Philanthropy and Rank

of Non-Profit Voluntary Organisations in India
Nandita S. Jha ............................................................................ 259

Case Comment

SC’s Mallikarjun Kodagali: Deviating from the Presumption of

Innocence and Going Overboard for Evolution of Victimology
Vivek Krishnani .......................................................................... 271

Kimble v. Marvel: Misconceived Precedent

or Stellar Affirmation
Aditya Gupta ............................................................................... 278

Joseph Shine v. Union of India Citation:

(2019) 3 SCC 39 Case Comment
M. Sri Atchyut ............................................................................. 295

Case Comment: Karnail Singh and Others v. State of

Haryana Animals are Legal Persons with Parents
Pankhuri Bhatnagar ................................................................... 300

Case Commentary Title: Has the Bombay High Court

Gone Too far in Validating Excessive Reservation?
Parth Soni & Patel Aniket .......................................................... 310

Where Will The Jurisdiction Lie? An Analysis of

“Executive Engineer, Road Development Divisio
No.iii, Panvel & Anr. V Atlanta Limited
Sumit Kumar Gupta ..................................................................... 318
 Book R eview

The Transformative Constitution- A

Radical Biography in Nine Acts
Gursimran Singh ......................................................................... 325

P.P. Mitra, An Introduction to Animal Laws in India

Prakash Sharma ......................................................................... 331
 FROM THE EDITORIAL BOARD
In the words of Barbara Tuchman “Books are the carriers of civilization.
Without books, history is silent, literature dumb, science crippled, thought
and speculation at a standstill”. Without books, the development of civiliza-
tion would have been impossible. They are engines of change, windows on the
world and lighthouses erected in the sea of time. They are companions, teach-
ers, magicians, bankers of treasures of the mind and are the humanity in print”.
In the field of law, a Law Journal is a significant pedagogical tool which intro-
duces law students to judicial processes and their plausible outcomes. Legal
issues are often intertwined with their social and economic counterparts,
and it is only through a Law Journal that a student of law is able to appre-
ciate the differences and discern the fine line between legal issues and other
socio-economic considerations. You have in your hands, the ninth edition of the
CNLU Law Journal, a literary endeavour of Chanakya National Law University,
Patna. With the last eight volumes, the benchmark that we have set for our-
selves is already very high, and with this edition, we only hope to match the
high standard that we have set for ourselves. This journal is a holistic compila-
tion of ideas and thoughts contributed by scholars, academicians and students of
our esteemed legal fraternity.

ARTICLES
The article titled “Reworking Labour Laws Amid Covid-19 Crisis – A Need
or a Reckless Strategy?” the authors Justice Smt. Mridula Mishra and Ms.
Pallavi Shankar have extensively dealt with the pros and cons of the amend-
ments to labour laws, whether such amendments is just and fair to that labour
sections of the society or not analysing the constitutional conflict with the
reworking of the labour laws.

In “Vulnerability of Human Rights Ensuing the Pitfall of Judicial Review

in India”, the author questions that entire question of Article 13 and the pur-
pose which it serves is rather questionable and there is urgency to investi-
gate whether or not the actuality of such an article currently in the Indian
Constitution is crucial or not. Article 13 trims down judicial review, and trans-
gresses Fundamental Rights instead of providing protection largely. Thusly
stands problematic to the Indian Constitution, equality and dignity of the
females in India. Even in the presence and functioning of Article 13 which
promise to protect all the citizens from any application of any transgressing law
thereby enforces the belief that even in the presence of Article 13 derogative
laws remains untouched and do not cease to exist. The author also stated that
xiv   FROM THE EDITORIAL BOARD

the personal laws on domestic issues go unscrutinised even in the presence of

Article 13.

In the article “A Critical Analysis of Trial by Media”, the author have

stressed over the importance of media along with its downside. In this article
the author has stated that an efficient legislations i.e. the Contempt of Court
Act 1971 is needed for harmonisation of fair trial and free press. The author
has discussed the legal precedents to combat with the problem of unfair trial.
Concept of media trial and the constitutional provisions regarding freedom of
speech and expression are included in the further chapters. The article also has
interplay between free speech and fair trial – an international perspective as
its sub-heading stating about provisions to regulate media trial in international
instruments as in UDHR and ICCPR.

In the article “Application of Economic Tools in Environment & Law: A

Step towards Sustainable Development and Green Economy in India”, the
author has discussed in detail the green economy approach to attain sustainabil-
ity and at the same time not hamper the development but boost it instead. The
article states that this could be done by efficiently applying the economic tools
that the sustainability and economic growth goes hand by hand. For this the
author has explained the concept of green economy and its principles through
statistics. The article shows that the economy and ecology depend on each other
and therefore green developments have been proved important in environmen-
tal justice. The author also states that even though there has been boost in the
Indian economy, polluting can cause long term damage to the economy. The
author has further discussed the use of economic tools in aligning it with law
and the importance of law in shaping the economy and environment. With the
cost effective way, the author concludes that law can help in creating and main-
taining the green economy and attain sustainability.

The article titled “Need for Mediation in Healthcare in India”, the author
has discussed in length that there is a need for mediation in Indian in field of
healthcare for any dispute that arises. In the article, the author has stated that
the litigation in these matters is uneconomical, time consuming and conflict-en-
hancing. Therefore mediation will be helpful in resolving the dispute with the
interference of a third neutral party that both the parties leave satisfactorily.
The author has also given the contention that mediation is a process which may
help the patients and their families to achieve everything that they seek after a
clinical fiasco. The author also has made a critical analysis of the mediation in
the healthcare field and that yet there might be possible issues in implementing
it, mediation is the right way to go.

In the article “Child Marriage: Barring the Rights of the Child Bride”, the
author states that for the progress and development of India, there is a need
to ensure gender equality by bringing women on the same pedestal as that to
men. This is only possible when girls are provided with access to education,
 CNLU LAW JOURNAL–2020-21  xv

healthcare facilities, etc. which will help in the physical, mental and
emotional development of the child and will also, enhance their deci-
sion-making power. However, child marriage is a major constraint in the
development of the girl child as it not only restricts her education but also
endangers her health and life. The author has comprehensively dealt with
the national legislations relating to child marriages and recognised an
anomaly that the provisions of these legislations provide for penal conse-
quences on the one hand but confers a status of validity to child marriages
on the other hand.

In the article “Different Strands of IP in Sports & E-Gaming Industry:

Exploring the Horizons”, the authors notes that the quandary of publicity
and personality protection in the current IP regime of the e-sports and
sports ecosystem, makes it increasingly pertinent to stress upon a commu-
nity-oriented distribution of IP rights. Lack of legal knowledge, as well as
the void of law in our country, has made things tumultuous both for the
club and also, the player in order to sustain their economic rights. In these
situations, there is nothing that the athlete or the franchise, can do except
for approaching the court under the outmoded facets of law. Thereby,
there is an increasing need for protecting the IPR in the ever-growing
arena of sports and in the myriads of e-sports

In “Emerging Value of the Insolvency and Bankruptcy Code, 2016”, the

author has made an explanation that resolving insolvency of businesses,
default in repayment of creditors, increase in Non-Performing Asset
(NPA), corporate borrowers, loans and advances and creditors control
over debtor’s assets and managing all such illegalities, became a daunt-
ing task for the judicial system. The earlier Indian bankruptcy regime was
highly fragmented, borne out of multiple judicial forums resulted in a lack
of clarity and certainty in jurisdiction. Secured and unsecured creditors,
employees, regulatory authorities had different and often competing rights
with no common regulatory process to determine the priority of claims.
Lack of adequate and credible data regarding the assets, indebtedness
and security situation of companies further accentuates the problems. A
complete piece of legislation for these matter is brought into light, widely
known as the Insolvency and Bankruptcy Code, 2016 (called the “Code”
and not an “Act”) to consolidate and amend all insolvency statutes and
laws relating to reorganisation and insolvency resolution of corporate

In the article “Fundamental Breach under UNCISG – The Delphic

Enigma”, as per the author, this article sets out the ongoing debate regard-
ing foreseeability under CISG and has presented the views from both
the sides. One view is that the foreseeability of a breach is to be deter-
mined at the time of conclusion of the contract as the parties rights and
obligations freeze at the time of conclusion of the contract which shall be
xvi   FROM THE EDITORIAL BOARD

addressed in the first part of this article. The opponents of the aforementioned
view believe that the foreseeability under Article 25 is to be extended to the
time of performance of the contract and is not limited to the time of conclusion
of the contract. This view shall be addressed in the second part of this paper.
The concluding part of this article has brought forth the views of the author on
which interpretation of CISG’s foreseeability under Article 25 is favoured.

In the article “Relevance of Health Economics, Law & Policy for Economic
Growth”, the authors have made the note that although, India has considerable
health infrastructure in urban areas but rural area till date seems to be largely
neglected. The crucial linkages between public health and human rights are
well recognised by the Constitution of India in Art. 47 of Part VI, enunciating
the duty of the State to raise the level of nutrition and the standard of living
and to improve public health. The authors have given in detail that equitable,
continuous and broad based investment in women and child healthcare sector
the commission also recognises the importance of adequate investment, espe-
cially in the most vulnerable and marginalised sections of the society like
scheduled caste, scheduled tribes, minorities, disabled and elderly people. If
some of the most important steps are taken immediately like more technolo-
gy-led innovations in healthcare aiding diagnosis, remote monitoring of patients
through telemedicine, etc., enabling 100% FDI in hospitals, private equity,
more use of generic medicines, advancement in medical tourism, continuation
of flagship programmes like Ayushman Bharat, managing medical cost effec-
tively without compromising quality medical care, effective implementation of
National Health Policy than India’s healthcare scenario will improve dramati-
cally aiding more to economic advancement.

In the article “Insanity as a Defense”, the author has looked into the idea of
what kind of test is used for the determination of liability and in what all ways
and qua what all persons can we apply the well-known standards of objectivity
and subjectivity. The author has detailed the above premise and explored it as
to how the entry of expert witnesses changed the way, the defence was treated
thereto. The author has also looked how the law exists in India and to what
extent has it been influenced by the English law. This article’s primary focus
will be on the idea of how the defence can be misused and is there a possibility
that the same is availed in falsely by an accused.

In the article “Legal Recognition of Same-Sex Marriage Rights in India”, the

author argues that to completely abolish the discrimination faced by same-sex
couples, their relationships are required to be legally recognised. Mere decrim-
inalising consensual sexual intercourse between persons of same gender is not
sufficient to ensure them social equality as that of heterosexual couples. The
author has logically and legally, dealt with all the objections against the legal
recognition of homosexual unions which are often misguided in the name of
tradition, culture and religion. The author has examined various ways by which
homosexual unions can be legally recognised. The judgment in Navtej Johar
 CNLU LAW JOURNAL–2020-21  xvii

case is only the first step in this way of ensuring justice to same-sex cou-
ples; many bold steps are still awaited.

In the article “The Medical Termination of Pregnancy Act, 1972 – A

Critical Analysis”, the author has analysed the Medical Termination of
Pregnancy Act, 1972. The major issues that the Act has failed to rectify
have been looked into. The author has primarily addressed the question
as to whether the fetus has a right to life. Deriving authority from some
of the recent decisions of Indian Courts in this regard, the author has
reasoned as to why the right to life of fetus should not supersede that of
its mothers. The author has proposed that the “compelling interest of the
State” should extend only to safeguard the autonomy of an individual to
make their respective choices and not to dictate what the choice should be.

In the article “Merger Control & Taxation of Cross-Border Merger

and Acquisitions in Australia, New Zealand and India: A Comparative
Analysis”, the authors have analysed the present legal landscape of the key
economic players (Australia, New Zealand, and India) in the APEC region
to understand the legal and policy vocabulary that created such favourable
scenarios. Furthermore, the authors used macroeconomic countrywise data
from these three players to examine their cross-border M&A trends over
the past decade, from 2009 to 2018. This article scrutinises the effects
and role of legal policy and taxation on cross-border M&As. The authors
observe that favourable corporate and tax laws were the key denominators
that resulted in a positive effect on cross-border M&As.

In the article “Nationalism: A Curb to Freedom of Speech and

Expression?” the author has differentiated between nationalism and
expression of dissent. The author has researched on the constitutional
aspect of the Jawaharlal Nehru University sedition case and its relevancy
in the recent times. The author has dealt with the basic fundamental right
and its exception to analyse the concept of speech and expression. The
author has also concluded with the statement of importance of democracy
and to uphold it.

In the article “Scope of Arbitration in Family Law: Analysis in Light of

Developments in Foreign Jurisdiction and Jurisprudence”, the author has
made a comparative study about arbitration and how can it be applied to
lessen the burden on family courts and expanding the scope of arbitration.
The author has discussed in details about the existing legislations and pol-
icy along with the powers of tribunals under various headings. The author
has been successful in providing an analysis that has proved helpful in
working off the matters of family issues through arbitration. The author
has however also discussed exceptions and hurdles that can be confronted
while such issues would be dealt. An emphasis has been laid that such
xviii   FROM THE EDITORIAL BOARD

process would be worth to ease the public and the court of the long exhaustion
and expenses.

In the article titled “Special Marriage Act (1954) as a Precursor of Uniform

Civil Code”, the author has presented a layout of the idea of special marriage as
a start of platform for implementation of the Uniform Civil Code. The author
has made a critical conclusion about the nature of Article 44 by connecting it
with the contemporary Indian scenario.

In the article titled “Local Working Requirements In The Patents Act 1970:
A Critical Analysis”, the authors focused on the attempts to turn the direction
of scholarship towards a concrete and fair approach by listing out other factors
that must be considered while deciding an application for compulsory licensing
and filing Form 27.

In the article titled Reappraising the Corporate Philanthropy and Rank of

Non-Profit Voluntary Organisations in India the author focused on analysing the
extensive significance of Corporate philanthropy to quotidian commercial oper-
ations in India.

NOTES AND CASE COMMENTS

The journal provides a commentary on the judgment, delivered in Joseph
Shine v. Union of India, 2019. The commentary includes a brief understanding
of the precedent and questions involved in the case and their analysis in detail.
To conclude Adultery was an offence till this precedent was decided by the
Hon’ble Supreme Court and after this precedent was decided it is considered to
be no more an offence. Under the (IPC) Indian Penal Code, 1860 the Adultery
is an Offence. The author feels that Adultery is an act and it should be consid-
ered as an offence.

In the case of Karnail Singh and others v. State of Haryana, the comment
is that the animals are legal persons with parents. The author states that the
purpose of the case comment is to analyse the various aspects of this unique
decision, study the background in which it was passed and highlight the lacu-
nae, if any, in the judgment. In the judgment it was said that animals are not
merely “things” or “property”. They are living beings just like the rest. In view
of the cruelty animals are subjected to every day and their “use and abuse” by
humans for their own purposes, it is necessary to grant the former with rights.
The author concludes that conferring of legal personality on animals must be
done after a careful consideration of which rights and/or obligations would
be appropriate to extend to particular animals. A more careful analysis of the
judgment must be conducted in order to prevent any grey areas in compliance
with it. Conferring of legal personality on animals must be done after a careful
 CNLU LAW JOURNAL–2020-21  xix

consideration of which rights and/or obligations would be appropriate to

extend to particular animals. A more careful analysis of the judgment
must be conducted in order to prevent any grey areas in compliance with
it.

The journal provides a commentary on the judgement, delivered in

Jishri Laxmnarao Patil v. The Chief Minister, 2019, and the error in its
judgment in upholding the reservation to Maratha community. The authors
have stated that the judgment given has been responsible in breaching the
ceiling of fifty per cent in reservations as set up by Mandal Commission
and most importantly, it deviates from the object of Article 15(4). In this
case, the Bombay High Court cited several authorities to determine the
scope of judicial review but it did not give any reason whatsoever as to
how it found that the Gaikwad Commission was correct with its method-
ology with regard to adequacy of representation and impact on efficiency
in administration.

In “Where will the Jurisdiction Lie? An Analysis of Executive

Engineer, Road Development Divisio No. III, Panvel & Anr. v. Atlanta
Limited”, the issue at hand was in this judgment, the SC was posed with
a conundrum of deciding the jurisdiction wherein both the District Court
and the High Court enjoyed jurisdiction to hear the matter. This case
commentary contains the background of the case and circumstances which
led to the final interpretation made by the Supreme Court. In this case
commentary, the author has tried to blend the harmonious construction
between Section 15 of the CPC and Section 2(1)(e) of the Arbitration and
Conciliation Act, 1996 to decide the jurisdiction of the Court. The author
has explored the intention of legislators while drafting respective provi-
sions to decide jurisdiction in the light of this judgment by the Supreme
Court.

In “SC’s Mallikarjun Kodagali: Deviating from the Presumption of

Innocence and Going Overboard for Evolution of Victimology”, the
author, expounds how the see-saw, which had been neglecting the victim,
has now attached to it more weight than required. Mallikarjun Kodagali v.
State of Karnataka is a perfect illustration of the above proposition. The
judgment deals with certain issues concerning victim’s right to appeal
under the Code of Criminal Procedure, 1973. The issue undertaken by
the author for analysis, herein, is the one which invited different opinions
from Lokur J. and Gupta J. Notwithstanding the fact that the opinion of
Lokur J. was the concurring opinion, the author subscribes to the views of
Gupta J. in this regard.

The journal provides a commentary on the judgment, delivered in

“Kimble v. Marvel: Misconceived Precedent or Stellar Affirmation”. The
xx   FROM THE EDITORIAL BOARD

judgment rendered in Kimble v. Marvel begs the question as to whether the

affirmation was by reason of sound judicial interpretation or the coercion of
Stare Decisis. According to the author, the present research seeks to analyse the
2015 ruling of Kimble v. Marvel, without the interference of Stare Decisis and
defining the contours under which the judgment was rendered (Patent Law or
Anti-Trust). The interplay between Rule of Reason and the Patent Misuse the-
ory so elucidated within the judgment shall also form an important segment of
the presentation

BOOK REVIEW
The book “The Transformative Constitution – a Radical Biography in Nine
Acts” by Gautam Bhatia as reviewed by the author has the potential to explore
issues through constitutional lenses. The author has described the issues of
technology and its power to control Constitution. The author has reviewed on
the interpretation of Constitution in relation to contemporary issues. The author
has also discussed on the transformative vision of the book that is inclusive of
radical ideas as well and that would be community to property and freedom
to work. The author has concluded that it is better to interpret the words of
Constitution in a way that on which the fundamental rights thrives rather than
being ignored and overlooked.

The book “An Introduction to Animal Laws in India” by P.P. Mitra, as

reviewed by the author has the potential to serve interests of lawyers, activists,
students, and all human being having compassion for every living element on
this earth. This book is a compendious piece of legal materials as it comprises
animal related laws, rules and orders passed there under, and the judicial deci-
sions. The author states that this book gives the status of animals in legal sense.
The author also states that animal law is treated part of the environmental law,
although that is a topic of debate and discussions. The author has dealt with
the animal laws on international front resulting in the formation of global ani-
mal law. As per laws in India regarding animals, the author has brought up the
three major laws for the protection of animals. The book, as the author states,
as mentioned the constitutional provisions for protecting the animals. In the
conclusion, the author has stated that proper knowledge and awareness is what
requires in the implementation of such law and the animal laws are just at a
nascent stage.

ACKNOWLEDGMENT
We, at Chanakya National Law University, are jubilant, and at the same time
humbled by the growth and augmentation of the CNLU Law Journal which
 CNLU LAW JOURNAL–2020-21  xxi

attracts contributions from the legal luminaries stationed in different parts

of the country and abroad and is now a storehouse of a number of enlight-
ening articles on law and legal issues. It is only through discussion, delib-
eration and debate that law grows and develops, and the Ninth Volume of
the CNLU Law Journal celebrates this spirit of enquiry and the faculty
of critical thinking which has been amply exhibited by our contributing
scholars and students.

No good work is the result of an endeavour of a sole entity. Hard work

of a lot of people has gone into the making of this illustrious journal. We
extend our gratitude to our faculty advisors Dr. B.R.N. Sharma, Dr. P.P.
Rao and Dr. Manoranjan Kumar for their invaluable insight and participa-
tion which made the making of this journal very smooth. We owe a lot to
our Hon’ble Justice (Retd.) Smt. Mridula Mishra, Vice Chancellor, for her
indispensable guidance and encouragement.

We believe that the only purpose of this journal is to sow a seed of

curiosity into the minds of our readers young and old, so that they exert
themselves to discover some new facets of our legal culture and add to the
legal comprehension of the society we live in. Happy Reading!
 REWORKING LABOUR LAWS
AMID COVID-19 CRISIS -A NEED
OR A RECKLESS STRATEGY?
—Mridula Mishra* & Pallavi Shankar**

Abstract — This paper attempts to study whether the step taken

by most of the States to rework labour laws amid this Covid crisis
was a necessary step or a reckless strategy. This is beyond doubts that
the Covid crisis has badly affected every nation of the world. India
is no exception. The entire economy has gone topsy-turvy. The first
challenge before any State remained the health and lives of its people.
To put a check on the soaring up Covid cases was the priority. The
immediate solution that seemed was a complete nationwide lockdown.
This lockdown resulted in another crisis in the form of economic crisis.
The lockdown resulted in loss of revenue, loss of livelihoods, deduction
of wages, unemployment, several small enterprises where either shut
down or were at the verge of shutting down. To come out of this
crisis and to bring back the economy back on track the Government
has adopted several measures and reforms in its policies. One such
measure is reworking of labour laws. This Article would examine the
effect of such a move on the part of the State Governments to bring
about reforms in the existing Labour Laws.

*
Vice-Chancellor Chanakya National Law University, Patna.
**
Teacher Associate Chanakya National Law University, Patna, Phd research scholar, CNLU,
Patna.
2  REWORKING LABOUR LAWS AMID COVID-19 CRISIS

I. INTRODUCTION

1.1 Labour is an important, indispensable, and active factor of produc-

tion. The word labour has dual meaning. In one hand it refers to the work-
force while in the other it refers to the work carried on by them (skilled,
unskilled, technical, etc).1 There is an inverse relationship between Labour and
Productivity. Greater the labour force lesser the productivity. Consequently,
in developing countries the condition of workers remains inferior as com-
pared to Developed Nations. There is inequality in labour incomes, and ine-
quality in access to employment. There are different classes of labours which
can be found in India – casual, daily workers, self-employed and regular
workers. The daily workers are usually paid on a daily basis and are usually
without a written contract or social protection. The regular workers include
workers employed for a longer term, often paid on a monthly basis, with a
contract of employment, and some social protection. Casual workers may have
mixed characteristics such as – a lot of casual workers have some continuity
in employment relationship like the regular workers, but they do not have any
social protection like them. These casual, daily, self-employed, etc represent
the informal sector or unorganised sector,2 because of their not so formal or
unorganised nature. India has the largest number of workers from the informal
Sector 83.5 % workforce in India belongs to the informal sector.3

1.2. India is a welfare State which means the interest and welfare of the
workers are to be ensured at every cost. It is implied that the economic growth
must not be achieved at the cost of the interest and welfare of workers. Article
246 bifurcates the power between the Centre and the State Government to
make laws. List I of the Seventh Schedule (known as Union List) contains
the matters on which the Central Government has exclusive powers to make
laws. List II of the seventh schedule (known as State List) contains mat-
ters which fall within the jurisdiction of the State Government. List III of the
Seventh Schedule is also known as the Concurrent List provides for matters
on which both the Central Government and the State Governments can make
laws. Labour related matters are covered in List III 4 i.e. both the Central

1
Bannock, G., R.E. Baxter and Evan Davis, (7th edn., 2003), The Penguin Dictionary of
Economics, Penguin Books, New Delhi., p. 218.
2
As per S. 2(m) of Unorganised Workers’ Social Security Act, 2008 “unorganised worker”
means a home based worker, self-employed worker or a wage worker in the unorganised sec-
tor and includes a worker in the organised sector who is not covered by any of the Acts men-
tioned in Sch. II to this Act.
3
As per NSSO 2019, for the year 2017-18.
4
Concurrent List, Seventh Schedule Entry No. 22- Trade unions; industrial and labour
Disputes. Entry No. 23- Social Security and social insurance; employment and unemployment.
Entry No. 24- welfare of labour including conditions of work, provident funds, employers’ lia-
bility, workmen’s compensation, invalidity and old age pensions and maternity benefits. Entry
No. 36- factories. There is one exception in case of Industrial Dispute concerning Union
Employees, the matter will fall in List I.
 CNLU LAW JOURNAL–2020-21  3

Government and the State Governments can enact laws in respect of such mat-
ters. A State may regulate labour matters either by enacting its own labour
laws or by amending those made by the Central Government, to be made
applicable to their States. In case of any incompatibility between the Central
and State laws, Central laws are to prevail. However, in instance of incompat-
ibility, if the State laws have received assent of the president, then such laws
will be applicable in that State.5

1.3. The after equation of the Covid exposed workforce to be the worst
affected by the ongoing crisis. Both the employers and the workers bore the
brunt of the situation. Many small business enterprises were forced to shut
down their business, they suffered loss of revenue and loss of production,
many workers lost their jobs, there were pay reduction, many were forced to
go on unpaid leaves, on large scales the migrant workers had to return to their
native places. The whole situation was dilemmatic. It called for taking proper
steps and measures on the part of the Government. Labour matter being in
concurrent list, some State Governments ,in a bid to introduce pro-business
reforms amended and relaxed the respective labour legislations. It was argued
by these States that chopping off the supposedly harsh labour laws will attract
investment and will once again restart the dormant economic activities of the
State. It was further conveyed by the States that the business enterprises with-
out the constraints of the strict labour laws will roar back to health and achieve
their latent potential.6

1.4. In Paschim Banga Khet Mazdoor Samity v. State of W.B.,7 the Supreme
Court has observed that the preamble sets out for achieving politico-so-
cio-economic democracy for all its citizens. Dr Ambedkar is regarded as the
founder of Economic Democracy in modern India, he has emphasised that
socio-economic disparity must be dispelled and socio- economic Democracy
must be established as it is essential to strengthen Political democracy. Political
democracy will be of no value without ascertaining the economic democracy.8
The Directive Principles of State Policy9 has been incorporated to set forth the
humanitarian social precepts that were the aims of the Indian Social revolu-
tion.10 Article 36 to Article 51 are in the nature of the directives or guidelines
for the State to direct its policies towards achieving the social and economic

5
Arts. 213 and 254(2) conjointly empowers the State Government to override central laws, sub-
ject to the President’s assent.
6
Column on “Exemption from Labour Laws: Unleashing the ‘New Normal’” by
Udit Chauhan and Aditya P Arora, <https://www.barandbench.com/amp/story/
columns%2Fexemption-from-labour-laws-unleashing-the-new-normal>.
7
(1996) 4 SCC 37: AIR 1996 SC 2426.
8
Jain, M.P. (5th edn., 2007), Indian Constitutional Law, Wadhwa and Company, Nagpur, p.
1363.
9
Borrowed from Irish Constitution.
10
Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225.
4  REWORKING LABOUR LAWS AMID COVID-19 CRISIS

justice.11 Article 38, Articles 39(a), (b), (d), (e), Article 41, Article 42, Article
43, Article 43-A, Article 47 are labour oriented.

II. REWORKING OF LABOUR LAWS

2.1. The following States have come up with the reforms in Labour Laws –
Uttar Pradesh, Madhya Pradesh, Kerala, Punjab, Haryana, Himachal Pradesh,
Uttarakhand, and Gujarat, Assam, Goa. Uttar Pradesh and Madhya Pradesh
have come up with the ordinance while others have notified relaxations
through Rules made by these States.

2.2. Uttar Pradesh Temporary Exemption from Certain Labour Laws

Ordinance, 2020 has been cleared by the Uttar Pradesh State Cabinet to
exempt factories and other manufacturing establishments from the operation of
all Labour Laws for a period of three years, subject to fulfilment of certain
conditions on the part of these factories and manufacturing establishment.12
These conditions include payment of minimum wages, timely payment of
wages within the wage periods, payment to be made in the bank account of the
workers and not through cash, to comply with the health and safety provisions
given under Factories Act, 1948, and Building and Other Construction Workers
(Regulation of Employment and Conditions of Service) Act, 1996, the working
hours have been increased from 48 hours a week to 72 hours a week and max-
imum daily hours have been increased from 9 hours to 12 hours. Employees’
Compensation Act, 1923, Bonded Labour System (Abolition) Act, 1976 and
laws relating to women and children exists as it is. The ordinance is vague and
unclear on the point from which labour laws exemption is granted. It is also
silent on the point which category of factories and manufacturing establish-
ments are exempted. As such the ordinance cannot be said to conjure the confi-
dence of the investors.

2.3. The State of Madhya Pradesh promulgated the Madhya Pradesh Labour
Laws (Amendment) Ordinance, 2020. The Ordinance seeks to amend the two
State Acts, namely, the Madhya Pradesh Industrial Employment (Standing
Orders) Act, 1961 and the Madhya Pradesh Shram Kalyan Nidhi Adhiniyam,
1982. The Madhya Pradesh Government has also exempted all new fac-
tories from some of the provisions under the IDA.13 The Madhya Pradesh
Government has notified 11 sectors to be exempted from the MPIR14 Act of
1961 for time indefinite. Small contractors employing up to 20 workers are

11
Jain, M.P. (5th edn., 2007), Indian Constitutional Law, Wadhwa and Company, Nagpur, p.
1363.
12
S. 3, temporary exemption.
13
Industrial Disputes Act, 1947.
14
Madhya Pradesh Industrial Relations Act of 1961.
 CNLU LAW JOURNAL–2020-21  5

exempted from the scope of Contract Labour (Regulations and Abolition)

Madhya Pradesh Rules, 1973.

2.4. The Gujarat government adopted an emphatic towards the newly indus-
trial units by exempting them from the scope of labour laws for a period of
1200 days. Section 51, 54, 55, 56 of Factories Act have been relaxed. The
working hours were extended up to 12 hours. However, it was mandated
to comply with the Minimum Wages Act, 1948, Industrial Safety Rules and
Compensation Act.

2.5. The Himachal Pradesh government has also made changes in labour
laws in line with State of Gujarat. The working hours were increased to 12
hours a day. Overtime wages were mandatory. The workers were to receive
minimum wages as fixed by the Himachal Pradesh Government under the pro-
visions of Minimum Wages Act, 1948.

2.6. The State of Kerala declared that they are not going to compromise on
the point of welfare of workers. They would prefer worker’s interest over econ-
omy. Kerala Government has announced alternative methods to enhance its
economy. the new factories were issued licence within one week’s time.

2.7. The Punjab Government has also announce exemption from labour laws
for certain establishments, working hours were also increased. Initially the
Punjab Government declared a hike in minimum wages for workers of all cat-
egories but the same was withdrawn after a hue and cry made by the business
establishments. Overtime wages were paid.

2.8.Uttarakhand Government exempted all the factories in the State from

the application of Factories Act, 1948. The establishments were permitted to
work even during the lockdown under specified conditions of maintaining
social distancing, sanitation, regular sanitization, etc. Working hours were also
increased to 11 hours from 8 hours.

2.9. Haryana Government permitted relaxation in regular working hours to

deal with the pressure of work. All the factories were exempted under Sections
51, 54, 55, 56 of the Factories Act, 1948 provisions related to overtime wages
were included. The State issued strict guidelines regarding Covid safety norms.

2.10. The Rajasthan Government has also suspended many labour legisla-
tions. Working hours were increased up to 12 hours a day. Overtime up to 4
hours were permitted and guidelines for overtime payment were issued.
6  REWORKING LABOUR LAWS AMID COVID-19 CRISIS

III. IMPLICATIONS

3.1. The changes in the existing Labour Laws were brought to facilitate the
business enterprises regain their strength and latent potential. It was believed
without being constrained by labour laws the economic activities will gain
some boost, in terms of revenue and production. The explanation for rework-
ing the labour laws was twofold – firstly as a tool to attract investment sec-
ondly to promote ease of doing business which was revered as the need of the
situation.15 This Step of the State Government attracted a lot of criticism by
the Trade Unions, Political Thinkers and other agencies. A petition was filed
before the Allahabad High Court challenging the ordinance passed by the Uttar
Pradesh Government and in pursuance of the High Court order16, the Uttar
Pradesh Government revoked its notification concerning working hours, rest
intervals and overtime payments.17

3.2. Violation of gross rights of the workers vis-à-vis Constitutional provi-

sions. – The exemptions given to the establishments under Industrial Disputes
Act, 1947 and the Factories Act, 1948 may undermine the basic rights of the
workers. Worker’s right to raise dispute has been chopped off in cases of lay-
offs, retrenchment, strike, lockouts, etc. such a move may cast unfettered,
unguided power to the establishment to do as they please. The extension of the
working hours from 8 hours to 12 hours are unfair and exploitative in nature.
These exemptions are as such violative of Article 14 and Article 21 of the
Constitution of India.

3.3. The ordinance mandates payment of wages at the rate of minimum

wages but interestingly excludes the establishment from the applicability of
the Minimum Wages Act, 1948. Since the ordinance does not specify any fac-
tors to be considered while deciding the minimum wages, there is a likelihood
that the government will have free reign to modify the factors undermining
the interest of the poor workers. In instance of any failure to secure Minimum
Living Standards through the notified minimum wages, the fundamental rights
given under Article 21 and Article 23 will be violated.18

15
4 The Economic Times, 11th May 2020, <https://economictimes.indiatimes.com/news/econ-
omy/policy/labour-lawssuspension-by-states-to-pull-businesses-out-of-crisis-isf/article-
show/75674928.cms?from=mdr> last visited on 7-12-2020.
16
U.P. Worker Front v. Union of India, 2020 SCC OnLine All 804.
17
<https://www.livelaw.in/news-updates/up-govt-withdraws-controversial-notification-for-
12-hour-shift-forindustrial-workers-156857>.
18
As held by the Supreme Court in People’s Union of Democratic Rights v. Union of India,
(1982) 3 SCC 235 and Sanjit Roy v. State of Rajasthan, (1983) 1 SCC 525.
 CNLU LAW JOURNAL–2020-21  7

3.4. The exemption under the Equal Remuneration Act, 1976 will pave the
way for the unethical and unequal treatment of the workers based on gender,
race, caste, or religion. In such a case Article 14 will be violated.19

3.5. The suspension of the Trade Union Act, 1926 will paralyse the partici-
pation of the workers in the management of the establishments. They will lose
their voice and status as a collective entity. The collective bargaining which
was an important tool to get themselves heard will be impaired. They will not
be in a position to bargain or negotiate the terms of employment. This will
amount to a violation of Article 19(1)(c).20

3.6. Turning a blind eye to the DPSP – The Directive Principles of State
Policy act as a check and balance on the State policies. It is a vital tool to
ensure the welfare of the people. Article 38 serves a directive to the State to
frame policies to secure social and economic justice and to eliminate economic
inequalities. Article 39(d) provides for equal pay for equal work for all citi-
zens. Article 42 provides for just and humane conditions of work. Article 43
is committed at ensuring living wages to all the workers and at the same time
appropriate working conditions so that the workers can have a decent stand-
ard of life and are able to enjoy and avail social and cultural opportunities.
Coming up with such amendments clearly means turning a blind eye to the
DPSPs which is unwarranted and totally wrong. It hurts the heart and senti-
ments of our Constitution.

3.7. Commitment to the International Institutions- India is a founding mem-

ber of the ILO.21 It has been a permanent member of the ILO since 1922. India
has ratified Six22 out of the Eight core ILO conventions.23 India is under the
obligation to respect and to abide by those standards.24 But having passed the
ordinance, India in a way has dishonoured these international recognized ethi-
cal labour standards prescribed by ILO, which is a violation of Article 51(c) of
the constitution. It is also important to understand all these guidelines provided
under different conventions are in fact pari materia to our existing labour leg-
islations. The ILO has also come up with a framework which must be taken

19
In Randhir Singh v. Union of India, (1982) 1 SCC 618, the Supreme Court has held that
refusal to pay equal remuneration for equal work amounts to a violation of Art. 14.
20
Art. 19(1)(c) protects citizens right to form associations or unions.
21
<https://www.ilo.org/newdelhi/aboutus/WCMS_166809/lang--en/index.htm>.
22
Forced labour convention (No. 29), Abolition of forced labour convention (No. 105), equal
remuneration convention (No. 100), Discrimination (Employment Occupation) Convention
(No. 111), Minimum Age convention (No. 138), Worst forms of Child Labour Convention (No.
182).
23
India has not ratified two conventions, namely, are Freedom of Association and Protection
of Right to Organised Convention (No. 182) and Right to organize and collective bargaining
Convention (No. 98).
24
Art. 51(c) requires the state to foster respect for international law and treaty obligations .
8  REWORKING LABOUR LAWS AMID COVID-19 CRISIS

into consideration while formulating any policy to address the economic cri-
sis.25 These are:

ƒƒ Protecting workers in the workplace.

ƒƒ Stimulating economic and labour demand.

ƒƒ Supporting employment and incomes.

ƒƒ Using social dialogue between government, workers and employers to find

solutions.

IV. CONCLUSION

4.1. It is true that Covid is just not a health crisis but equally an economic
crisis and a bigger crisis for the working force who are already the margin-
alised section of population in any country. There were disruptions in trade
and business resulting into low revenue and low production, in some instances
shutting down of the business establishments. As a result these business estab-
lishments reduced the wages of their employees, many lost their jobs, employ-
ment opportunities were put to halt, no job opportunities, large scale migration
of workers to their native places, etc. The covid took a toll on the lives and
livelihoods of the people. To ease out the situation. Some of the States came up
with amendments in the existing labour laws.

4.2. While most of the industrial establishments and other business houses
suffered, there were some of the sectors which were able to encash the oppor-
tunity given by the crisis, namely, healthcare providers, pharmaceutical and
medical equipment start ups, messaging platforms, edutech companies, tech-
based start ups, digital start ups.26

4.2. Considering the crisis, the State Government took the step of reworking
the labour laws. But the important question is whether the reworking of labour
laws was a necessity, or it is a reckless step. Any labour related legislation
should always be enacted with objective of protecting the basic interests of the
working class, it must respect their rights to negotiate and bargain with their
employers. No Nation can progress if it fails to invest in the human resources
of its Nation, or if it fails to increase the share of labour in the country’s

25
<https://www.ilo.org/global/topics/coronavirus/regional-country/country-responses/lang--en/
index.htm>.
26
Kamini Vidisha, “The Covid-19’s Impact on Start-Ups: Make Use of the Opportunity the
Coronavirus has Provided, 13.4.2020”, The Financial Express, <https://www.financialexpress.
com/industry/the-covid-19s-impact-on-start ups-make-use-of-the-opportunity-the-coronavirus-
has-provided/1926446>.
 CNLU LAW JOURNAL–2020-21  9

wealth, or if it fails to strike the right balance between the rights of the inves-
tor and the workers.27

4.3. The Canadian social activist Naomi Klein in her “Shock Doctrine” has
rightly pointed that in case of crisis whether natural or induced the tendency of
irresponsible government is to prey upon the vulnerabilities, they bring about
such reforms in their policies and governance which are not otherwise permit-
ted in a democratic set up. It is actually to be pondered whether the reworking
of the labour laws on part of some States through the ordinance is indicative of
the dynamics of disaster capitalism.28

4.4. Undoubtedly the crisis has resulted into a lot of chaos but the important
question remains what is the justification of bringing such reforms, suspend-
ing labour laws and placing the poor working class in the vulnerable posi-
tion where there is no security of employment or wages? The argument that
Covid resulted in a force majeure situation where the productivity and revenue
immensely suffered and therefore the State acted in such a manner suspending
the labour laws sounds weak. Another argument that the suspension is tempo-
rary and will end eventually is again nothing more than a lame excuse. The
loss it will create will have a longer effect. The suspension and reworking of
labour laws can never be a solution. Making the sufferers suffer more cannot
help the economy to get back into shape. These labour reforms will pave way
for another crisis, it will worsen the condition of the not-so-privileged classes.
It will bring down the labour standards which took century to reach where it
stood today. Moreover, the Constitutional and International obligations will
be violated. Anything at the cost of the embedded Constitutional provisions –
Fundamental Rights, DPSPs, etc. will be a violation of the basic human rights
or dignity. The aftermath of the reforms in the labour laws points out to loss of
basic human rights – in the form of Right to livelihood and Right to conducive
working conditions, the problem of unemployment will also aggravate. These
marginalised workers form a major part of our population and when the larger
population in any society is suffering, facing havoc how can the society ever
make any progress. In the words of legendry economist Adam Smith that, “No
society can surely be flourishing and happy, of which the far greater part of the
members is poor and miserable”.29 Also it is time to adopt Jeremy Bentham’s
theory of Utilitarianism whereby the State must adopt policies such that “the
greatest happiness(pro-labours) to the greatest member (labours) of the society”
is ensured.

27
7 Mehta P.R., 12.5.2020, “Ordinances by States to Change Labour Laws are a Travesty”, The
Indian Express, <https://indianexpress.com/article/opinion/columns/industrial-relations-code-
india-labour-law-amendmentpratap-bhanu-mehta-6405265>.
28
<https://www.theguardian.com/us-news/2017/jul/06/naomi-klein-how-power-profits-from-disas-
ter>.
29
Smith, A. (1937), An Inquiry into the Nature and Causes of the Wealth of Nations, The
Modern Library, New York, Book I, Chapter VIII, p. 79, para 36.
10  REWORKING LABOUR LAWS AMID COVID-19 CRISIS

4.5. The need of the hour is to strengthen the earlier existing labour legis-
lations, to mould the laws to suit to the workers. The State must not compro-
mise on the welfare of its people. Being a welfare State means the interest and
welfare of the workers are to be ensured at every cost. It is implied that the
economic growth must not be achieved at the cost of the interest and welfare
of workers.
 VULNERABILITY OF HUMAN
RIGHTS ENSUING THE PITFALL OF
JUDICIAL REVIEW IN INDIA!
—Deeksha Sharma

Abstract — Judicial review, a weapon in the hands of the

Indian Judiciary to run a test in order to analyse whether a
law is valid or otherwise. The entire question of Article 13 and the
purpose which it serves is rather questionable and there is urgency to
investigate whether or not the actuality of such an article currently in
the Indian Constitution is crucial or not. Whether Article 13’s task of
being an element of ‘abundant caution”, assigned by the Constitution
makers is fulfilled by it/or is it failing miserably?

Personal laws which targets to protect domestic issues are designed

to protect interests of individual sections of the society but there are
numerous laws which unfortunately instead of leading on the positive
front in turn end up contradicting the entire purpose which indeed end
up violating basic human rights of which females majorly fall prey to.

Personal laws with focal point on domestic issues such as inheritance,

adoption and marriages which get away with no administration
of scrutiny as they are well protected off of any intervening by a
constitutional functionary. Even in the presence and functioning of
Article 13 which promise to protect all the citizens from any application
of any transgressing law thereby enforces the belief that even in the
presence of Article 13 derogative laws remains untouched and do not
cease to exist.

Furthermore, Article 13 brings in the age old concept of Historical

School of Jurisprudence. Thus becomes a barrier for the Indian
Constitution to achieve its transformative vision.
12  VULNERABILITY OF HUMAN RIGHTS ENSUING

This article has established the irrelevance of article 13 and thus it

needs to be abolished or for the better be amended for the positive.

The Constitution was labelled as an impression to revolutions in time-hon-

oured conceptions by the eminent author D.E. Smith.1 Espying individual as
the intrinsic unit of the Constitution bespeaks what the Indian Constitution
envisages for, thus demanding laws and structures to be viewed via prism of
individual dignity. But does Article 13 of the Indian Constitution abide by it?

Speaking on the true purpose of liberty in the Indian Constitution, Dr B.R.

Ambedkar stated that:

“What are we having this liberty for? We are having this

liberty in order to reform our social system, which is so full
of inequities, so full of inequalities, discriminations and
other things, which conflict with our fundamental rights.”2

But do we have this liberty in its true essence? Does every element of the
Indian Constitution abide by the same thing? No, it doesn’t. In this article, we
will see that how Article 13 stands very problematic to the Indian Constitution
and curbs its liberty to eradicate the social equalities, thereby standing
against its transformative vision. And, also as to how Article 13 is extremely
superfluous!

Article 13 renders all laws inconsistent and derogative of fundamental

rights as void.3 Chief Justice Kania in A.K. Gopalan v. State of Madras4 , rea-
soned its insertion as a matter of “abundant caution”, and observed:

“In India it is the Constitution that is supreme, that a law

to be valid must be in all conformity with the constitutional
requirements and it is for the judiciary to decide whether
any enactment is constitutional or not. The same result could
be achieved even without the aid of Article 13 and the laws
transgressing any fundamental rights would be declared void
in its absence.”

Hence, Article 13 is not important, but was added to be extra careful

in the case of Fundamental Rights in India, considering their supreme
importance.

1
D.E. Smith, India As a Secular State (1963).
2
Parliament of India, Constituent Assembly Debates, Vol. VII, at p. 781.
3
Indian Constitution, Art.13.
4
AIR 1950 SC 27.
 CNLU LAW JOURNAL–2020-21  13

This view has been supported by the notable Indian jurist and an authority
on the Indian Constitution, Mr. H.M. Seervai.5

Article 13(3)6 defines “Law”, but closes off Personal Laws from judi-
cial scrutiny. Personal Laws govern matters of family affairs, and have been
a major hindrance in the empowerment and dignity of the females in India.7
They deepen inequality and discrimination not only within the religion
between the genders but also between the personal laws of different religions.8

India’s colonial past roots the birth of personal laws. Hindu and Muslim
personal laws were weaponized for the protection of the private realm of indi-
vidual households from evils of the colonial states, laws which were largely
retained by the constitution at the hour of independence. Those which exist
today are those that were unfortunately favourable to the native patriar-
chy. Domestic issues such as adoption, maintenance, divorce, marriage and
inheritance are the focal points of such personal laws. They are codified and
non-codified, existing in custom and practice.9

I. SOME ELEMENTS OF PERSONAL LAWS

CAUSING VIOLATION OF WOMEN;

A. Islamic Personal Law

ƒƒ Muslim men are granted the legal recognition of multiple marriages

simultaneously.10

ƒƒ Nikah Halala is a concept which provides for a stoppage on a Muslim

woman to remarry the husband who has divorced her unless she marries
another man and consummates the marriage firstly.

ƒƒ Islamic criminal jurisprudence, entitles no punishment for a woman forced

to have sex.11
5
H.M. Seervai, Constitutional Law of India 677-678 (1991).
6
Indian Constitution, Art.13, Cl. 3.
7
Prabhash K. Dutta, “Beyond Triple Talaq: How Judiciary has Dealt with Personal Laws
against Fundamental Rights”, India Today (May 11, 2017, 2.44 p.m.), <https://www.indiatoday.
in/india/story/triple-talaq-supreme-court-976439-2017-05-11>.
8
Ashok Wadje, “Judicial Review of Personal Laws vis-à-vis Constitutional Validity of Personal
Laws”, 2 South Asian Journal of Multidisciplinary Studies.
9
“Personal Laws versus Gender Justice: Will a Uniform Civil Code Solve the Problem?”,
Economic and Political Weekly (June 15, 2019, 5.30 p.m.), <https://www.epw.in/engage/article/
personal-laws-versus-gender-justice-uniform-civil-code-solution?0=ip_login_no_cache%3D-
dcdf84fb57ee400b01b7bb595f775965>.
10
Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439.
11
Vol. 10, “Beirut: Dar al-Kitab al-Arabi n.d.”, (June 10, 2019, 2.50 p.m.), <http://www.geo.tv/zs/
Zina_article_Final.pdf >.
14  VULNERABILITY OF HUMAN RIGHTS ENSUING

ƒƒ In case of succession, a brother’s share of the inheritance is double than

that of a woman in the same degree of relationship to the deceased. The
quantum of property inherited by a female heir is half of the property given
to a male heir of equivalent status. 12

II. HINDU PERSONAL LAW

ƒƒ Ignorance in the need for equal rights of guardianship of children is majorly

highlighted by Section 6(a) of the Hindu Minority and Guardianship Act
which gives a father the status of a natural guardian not the mother.

III. PARSI PERSONAL LAW

ƒƒ On marrying a non-Parsi, the children of the woman are not accepted as

being part of the Parsi community however there is exemption for males
from such a case.

ƒƒ Death of a Parsi man whose wife is a non-Parsi restricts such a wife from
inheriting the property of her widower, though the children are not faced
by any such restriction.13

IV. CHRISTIAN PERSONAL LAW

ƒƒ Under the Christian personal law men are granted divorce in the case of
a woman committing adultery however at least two offences by the hus-
band is a must to be proved by the wife in case of adultery resulting in a
divorce.14

Under some Personal laws, women are also coerced to

marry their own rapists instead of receiving legal penalty.

Hence Judicial Review as an indispensable15 and imperative feature of the

Indian Constitution is much under menace.

Hence, If these Laws are allowed to be followed without judicial scrutiny,

then there will not only be sexual inequality between men and women of one
community, but also inequality between women of one religious community
and those belonging to another religious community16. Furthermore, not sub-
jecting personal laws to Judicial Scrutiny make fundamental rights of people,
12
The Muslim Personal Law (Shariat) Application Act, 1937, S. 40.
13
The Parsi Marriage and Divorce Act, 1936, No. 6, Acts of Parliament, 1936 (India).
14
Divorce Act, S. 22, No. 4, Acts of Parliament, 1869 (India).
15
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
16
Ajai Kumar, Uniform Civil Code: Challenges and Constraints (1st edn., 2012).
 CNLU LAW JOURNAL–2020-21  15

especially women more vulnerable to exploitation. Article 13 supports the vio-

lation of Articles 14 and 21 of the people of India, by inherently subjecting
them to the social morality, and thereby failing its duty miserably.

Justice Chandrachud had even highlighted in the Sabrimala judgment17

about the inclusion of Personal Laws in “customs and usages” in Article 13,
and how they have been creating a menace by not being subjected to judicial
review.

Even though in the recent times, codified personal laws, being “laws’ under
Article 13, have started been subject to Judicial Review, but the exception
largely lies to non-codified personal laws, like the Muslim Law largely, and
even some parts of the Hindu Personal Law. They cannot face the wrath of
Judicial Scrutiny, because they are not codified by the Legislature. Ultimately,
submitting judicial review to the whims and fancies of the legislature.

Now, the Federal Court in United Provinces v. Atiqa Begum18 observed that
the expression “law in force” in Section 292, Government of India Act, 193519
applies not only to statutory enactments, but to all laws inclusive of even per-
sonal and customary laws. In Article 372 the Indian Constituent Assembly
re-enacts provisions of Section 292 Government of India Act, 1935. Article
372(1)20 talks about continuance of existing laws subject to constitution which
clearly indicates the intention of the Constituent Assembly to include per-
sonal laws within its ambit. But, its scope is restricted by Article 13. This way
Article 13, makes Article 372 meaningless and useless.

Thenceforth Article 13 trims down judicial review, and

transgresses Fundamental Rights instead of providing pro-
tection largely. Thusly stands problematic to the Indian
Constitution, Equality and dignity of the females in India.

It further upholds the Presumption of Constitutionality of Legislation, plac-

ing the burden of proof on people contending that a particular law violates
their fundamental rights.”21 The Supreme Court of India however holds that
the burden must shift from the petitioner to the Legislature in “hard cases”,
based on biological distinction between sexes, and legislations discriminating
on social class.22 These cases must be strictly scrutinised by the courts. Hence,
this Presumption must be taken away.

17
Indian Young Lawyers Assn. v. Union of India, (2019) 11 SCC 1 : 2018 SCC OnLine SC 1690.
18
1940 SCC OnLine FC 11 : AIR 1941 FC 16.
19
Government of India Act, 1935, S. 292.
20
Indian Constitution, Art. 372, Cl.1.
21
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746 : AIR 1971 SC
2486.
22
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
16  VULNERABILITY OF HUMAN RIGHTS ENSUING

Also, the reasonability test propounded by the Indian Constitution becomes

unreasonable because it blinds itself to the by-product, failing to “balance”
the State’s interests against the rights of affected persons, and whether the
involvement of State has a less onerous alternative.23 This application of Strict
Scrutiny often generates opposition against the courts for misusing its powers
against the Legislature.

In our opinion, Strict Scrutiny must be constitutionally espoused in Articles

3224 and 22625 for fulfilling the task of “abundant caution” of Article 13, shield-
ing Article 1526 and vulnerable classes. This would also help define circum-
stances in which this doctrine can be used. It will be in complete conformity
with Article 32 by granting the Supreme Court of India, the power to protect
fundamental rights in all circumstances; hence conformity with the due pro-
cess27 would be achieved. In addition, Article 13 should be repealed, so that
personal laws come within Judicial Scrutiny through the aid of Article 372.

Politically motivated addition of Article 13(4)28, with the 24th amendment29

to Indian Constitution, by the then Prime minister of India, Ms. Indira Gandhi
to overrule an Supreme Court judgment, further restricts the power of the
Supreme Court of India, to review amendments made by the legislature to fun-
damental rights. Thereby making fundamental rights more vulnerable.

Furthermore, another point to be highlighted is that, Article 13 largely

brings into effect the Historical School of Jurisprudence, ultimately leaving the
human rights to the whims and fancies and much on the spell of people’s con-
sciousness. Ahmedabad Women Action Group v. Union of India 30 pronounce-
ment further reiterated in the Triple Talaq31 judgment, by Chief Justice Khehar
held that, personal laws should be excluded from the ambit of judicial review.
They further held that,

“While examining issues falling in the realm of religious

practices or “Personal Law”, it is not for a court to make a
choice of something which it considers as forward-looking
23
Karan Lahiri, “Difficult Conversations: On Why the Supreme Court’s Judgment in the
Kerala Liquor Ban Case Represents a Lost Opportunity to Examine Tough Questions on
Discrimination”, Indian Constitutional Law and Philosophy (January 12, 2016), <https://ind-
conlawphil.wordpress.com/tag/strict-scrutiny/>.
24
Indian Constitution, Art. 32; (Gives Power of Judicial Review to the Hon’ble Supreme Court
of India.)
25
Indian Constitution, Art. 226; (Gives Power of Judicial Review to the Hon’ble High Courts in
India.)
26
Indian Constitution, Art. 15.
27
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
28
Indian Constitution, Art. 13, Cl. 4.
29
24th Amendment Act, 1971.
30
(1997) 3 SCC 573.
31
Shayara Bano v. Union of India, (2017) 9 SCC 1.
 CNLU LAW JOURNAL–2020-21  17

or non-fundamentalist. The court does not decide whether a

religious practice is prudent, progressive or even regressive.
Personal laws and religion are for interpretation as it is and
must be accepted in faith of the followers. It is not for the
determination by a self-proclaimed rationalist of the same
faith. It is not for a court to determine whether religious
practices were prudent or progressive or regressive. Religion
and “Personal Law”, must be perceived, as it is accepted
by the followers of the faith. Article 25 obliges all consti-
tutional courts to protect “Personal Laws” and not to find
fault therewith. Judicial examination is completely stricken
off in the case of assessing the validity of a personal law.
Interference in matters of “Personal Law” is clearly beyond
judicial examination. The judiciary must, therefore, always
exercise absolute restraint, no matter how inviting, com-
pelling and attractive the opportunity to do societal good it
may forecast.” This view of Chief Justice has been backed
by the Constitutional Assembly Debates, in which it was
clearly mentioned by M. Ananthasayanam Ayyangar that,
there would be amendments in personal laws as and when the
members of that particular religion would like it.32

Similar is the view of the Historical School of Jurisprudence, which bases

the formulation of laws solely by the people, to the people, for the peo-
ple. According to them, Law should be according to the conscience of peo-
ple which are being governed by it. Nobody else can decide about it. “Law
is formulated for the people and by the people” means that the law should
be according to the changing dynamics and needs of the entire population.
Savigny, the father of this school of jurisprudence announces the consciousness
of people as the major and main source of law.

But, should we keep waiting for the consciousness of people to change.

Article 13 disregards the Positivist School of Jurisprudence, which is highly
followed in India. This school greatly believes in the black-letter law. Even
though it has been held by the Supreme Court in the case of C. Masilamani
Mudaliar v. Sri Swaminathaswami,33 that Personal laws are within the Judicial
Scrutiny, but because of Article 13 nobody is following that. This is high dis-
regard for the black letter law. Nevertheless, should we let human rights to be
highly violated by this? Or should we keep allowing Article 13 to disregard the
Positive school of Jurisprudence, and go by people’s conscience?

32
Parliament of India, Constituent Assembly Debates, Vol. VII.
33
(1996) 8 SCC 525.
18  VULNERABILITY OF HUMAN RIGHTS ENSUING

The view of the Chief Justice Khehar in the triple talaq judgment shouldn’t
be taken as correct as, Notable Indian Jurist H.M. Seervai34 is of the view that
personal laws are so inextricably connected to the entire network of law and
therefore it would be difficult to ascertain the residue of personal law outside
them. Now, by virtue of this statement personal laws gain protection under
Article 25. But the Hon’ble Supreme Court35 has pointed out that the personal
law did not form part of any religion but pertained to ‘secular practice asso-
ciated with religion’. Now, Article 25 involves a separation between religious
activities, on the one hand, and secular and social activities on the other, while
the former are protected, the latter are not36. So, the article makes it clear that
secular activity may be associated with religion, though the guarantee of the
article does not extend to such activity.37 Thereby, no protection of personal
laws under Article 25.

Apart from failing to achieve its given objective, restricting the ambit of
judicial scrutiny, and posing further threats to fundamental rights, Article 13
is also extremely superfluous. It has rightly been held by the Hon’ble Supreme
Court of U.S.A., (where the Indian Judicial Review was largely borrowed
from), in the landmark judgment of Marbury v. Maddison38 that,

“with the establishment of a new Political Character,

Institution and Constitution, all pre-existing laws inconsist-
ent therewith at once stand displaced and cease to be of any
obligatory force without any declaration to that effect”, mak-
ing 13(1) useless.

Further, earlier “laws in force” continued under Art. 372(1) being subject to
the Constitution fails to the extent of any infringement or transgression, even
without Article 13(1).

Articles 245(1)39, 2540, makes, law made by the Indian Parliament, subject
to the Constitution, thus post-constitution laws would backslide regardless of
Article 13(2)41.

As rightly observed by D.D. Basu, a notable jurist, and an authority on the

Indian Constitution, that Judicial Review strings out to the entire length and
breadth of the Constitution. Potential of Judicial Review branches from the
34
1 H.M. Seervai, Constitutional Law of India: A Critical Commentary 677-678 (4th edn.,
Universal Law Publishers, 1991).
35
Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 : AIR 1985 SC 935.
36
Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689 : AIR 1980 SC 707.
37
S.P. Mittal v. Union of India, (1983) 1 SCC 51 : AIR 1983 SC 1.
38
2 L Ed 60 : 5 US 137 (1803).
39
Indian Constitution, Art. 245, Cl. 1.
40
Indian Constitution, Art. 25.
41
Indian Constitution, Art. 13, Cl. 2.
 CNLU LAW JOURNAL–2020-21  19

Constitution hence Article 13’s void will not hold back the court to invalidate a
detracting law. In India, it is not simply the formal allocation of powers but an
evolving constitutional jurisprudence that has enhanced the powers of judicial
review.42

It has been held by the Supreme Court in the landmark decision of State of
Rajasthan v. Union of India43 that,

The Supreme Court held a similar viewpoint that, “So long as

a question, arises whether an authority under the Constitution
has acted within the limits of its power or exceeded it, it can
certainly be decided by the Court. Indeed it would be its con-
stitutional obligation to do so. It is for the Supreme Court to
uphold the constitutional values and to enforce the constitu-
tional limitations. That is the essence of the rule of law.”

The rule of law in its true essence spotlights the Supreme Court for invali-
dating anything against the constitutional morals and enforcement of the con-
stitutional limitations. Court can and should rightfully intervene where there
is manifest infringement of Constitutional values. Power of judicial review is,
thus, obvious in a written constitution.44 Hence the power of Judicial Review
is not limited to one article. But, Article 13 acts as a barrier for the Court to
freely exercise its judicial power, by not including Personal laws in its ambit.

Also, Article 32 in no way restricts the Supreme Court in taking up cases

related to personal laws. Then why should we allow Article 13, to take away
this power from the court?

Moreover, the actuality of Article 13 in the Constitution is not paramount

for the question of Fundamental Rights and the degree it is sanctioned to be
truncated by the Constitution itself.”45

A. So, can Personal Laws be considered as laws without the aid of

Article 13, so that courts are able to judicially scrutinize it? Yes,
they can.

Firstly, the court in United Provinces v. Atiqa Begum held that “laws in
force” in Article 13 contain even personal laws, at a time when the personal
laws were highly non-codified.

42
Shodhganga, “Policy Making in India, Judiciary v. Parliament”, <https://shodhganga.inflibnet.
ac.in/bitstream/10603/95978/2/11_chapter2.pdf>.
43
State of Rajasthan v. Union of India, (1977) 3 SCC 592.
44
A.K. Kaul v. Union of India, (1995) 4 SCC 73 : (1995) 30 ATC 174.
45
Rudul Sah v. State of Bihar, (1983) 4 SCC 141.
20  VULNERABILITY OF HUMAN RIGHTS ENSUING

Now, ‘Law is the body of principles recognized and applied by the state in
the administration of justice.’46 Hence, the answer to the question whether any
rule of conduct is law is to be found in the fact whether it is enforced by the
courts of law.47 Personal Laws are rightly enforced by the Courts for solving
matters of divorce, succession, inheritance etc, of various religions. Therefore
by the virtue of this definition of Law by Salmond, Personal Laws should be
considered as Laws. A piece of personal law, although may not be a statutory
law also binds citizens, if it has been accepted and enforced by a sovereign,
and acted upon by the courts for long.48

For upholding the Constitutional Morality, it is not important that any prac-
tice or personal law should be codified. What is important is that it abides by
the norms of the Constitution. If it fails, then the judges should be able to test
its constitutionality. This practice could be done even without the aid of Article
13.

V. CERTAIN, BETTER ALTERNATIVES TO

ARTICLE 13, IN OTHER CONSTITUTIONS.

ƒƒ Article 36 of the Switzerland Constitution49:

Restrictions on fundamental rights must have a legal expla-

nation, significantly highlighted in a federal act. Such restric-
tions must be aligned with public interests as well as the
protection of fundamental rights of the rest. Putting a status
of sacrosanctity on fundamental rights.

This tells the situations in which fundamental rights can be

infringed. It must have a legal explanation. In India, mostly
infringement of fundamental rights have a social explana-
tions, keeping in mind the morality of the society and not
of the Constitution. A similar clause must be imbibed in the
Indian Constitution as well. This would serve the purpose of
the Constitution makers of giving “abundant caution” to the
fundamental rights.

ƒƒ Article 19 of the West German Constitution50 :

46
P.J. Fitzgerald, Salmond on Jurisprudence, 40 (12th edn.).
47
Raj KumarNarsingh Pratap Singh Deo v. State of Orissa, AIR 1964 SC 1793.
48
Mithan Lal v. State of Delhi, AIR 1958 SC 682.
49
Switzerland Constitution, Art. 32.
50
West German Constitution, Art. 19.
 CNLU LAW JOURNAL–2020-21  21

No case may render the essence of a basic right to be duly

affected.

At long last, the Indian Jurisprudence should fathom the cataclysmic nature
of Article 13 and repeal it, in order to fundamentally shield the pillars of
human rights and dignity of females in India. The importance of Article 372
will then be recognized.
 A CRITICAL ANALYSIS OF
TRIAL BY MEDIA
—Neha Das

Abstract — Media is a powerful medium and aids in the

exchange and communication of ideas and opinion. An
independent media is a carrier of courage and plays an active role in
the quest of truth in a democracy. But, a free press entails with it the
responsibility to realize the consequences of its actions. The interplay
between the right to freedom of speech and expression and the right to
fair trial has resulted in a conflict between the competing rights. Media
has a responsibility to ensure that the matter is thoroughly investigated
and the facts are duly verified, analyzed and researched upon and a
truthful account of the information is rendered to the readers.

The press cannot exercise its rights in a whimsical manner as the media
coverage has a pervasive impression in the minds of the readers about the guilt
or innocence of the accused. Any kind of fabrication of the truth adversely
affects public opinion and in turn interferes with the smooth functioning of
the judiciary and thereby disrupting the status quo. Such interference give
rise to legal complexities which hinders the right to fair trial guaranteed by
the Constitution. The issue at hand is that of a dichotomy of free speech and
fair trial that is apparent in the case where restrictions are imposed on prejudi-
cial publications affecting fair trial and the question is whether such restriction
would curb and abridge the freedom of press. There is a dire need to curb the
implications of media trial as it affects the criminal justice system and the pub-
lic at large. To harmonize fair trial and free press, it is necessary to enforce
the Contempt of Courts Act, 1971 efficiently. Until the verdict of the Court on
a sub judice matter, the media has a duty to report fair and accurate facts with
no prejudice whatsoever. Media has to understand the underlying legal conse-
quences and principles of criminal justice system. This paper aims at analyzing
the various facets of trial by media by throwing light on judicial pronounce-
ments on the phenomenon of media trail and suggesting measures to combat
this problem.
 CNLU LAW JOURNAL–2020-21  23

Keywords: Administration of justice, Contempt of Court, Democracy, Free

Speech. Media Trial.

I. INTRODUCTION

‘Information is the currency of democracy.’ Apart from the three organs

of the Government, media also forms a cornerstone in a democratic society.
As its etymology (‘medium’) suggests, media is the mechanism through which
public opinion is moulded and information is disseminated to the society at
large. With the advance of technology, media is not only restricted to televi-
sion, radio or newspapers but also includes the internet, which is yet another
powerful source to bring about awareness and in turn, strengthen the society.
Justice Markandey Katju, has also reaffirmed the significant role of media in
transforming India into a industrial society from an archaic one.1 Media cre-
ates awareness about socio-political and economic events around the globe.
The manner in which media disseminates information creates desirable expres-
sion and sentiments.2

Article 19(1)(a)3 of the Constitution of India declares that all citizens shall
have the right to freedom of speech and expression which is not an absolute
right and is subject to reasonable restrictions imposed by law in relation to
contempt of Court, defamation or incitement to offence.4 Freedom of press
flows from Article 19(1)(a) of the Constitution of India. The main objective of
our founding fathers to advance such freedom to press was to protect the pur-
veying of information.

The entire judicial process and justice system is subject to public scrutiny
by the media and is often referred to as the watch dog of the society. To create
a constructive check on the smooth functioning of democracy, media implicitly
claims the right to investigate, reveal, expose and criticize and thereby give a
fair account of the events. There should be a harmonic balance between the
freedom of press and the duty to ensure responsible and accountable journal-
ism. Critical debates and free reporting are conducive factors for the compre-
hension of the concept of rule of law by the public and a better understanding

1
Justice Markandey Katju, “The Role the Media should be playing in India”, The Hindu,
5-11-2011.
2
“Trial by Media: Looking Beyond the Pale of Legality”, Civil Services Times Magazine, (12-
7-2001), available at <http://www.civilservicestimes.com>.
3
Indian Constitution, Art. 19.
4
H.M. Seervai, Constitutional Law of India 723 (Universal Law Publishing Co., Vol. 1, 4th
edn. 1991).
24  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

of the judicial system.5 The freedom of press stems from the public’s right to
know and to be informed in a democracy. Media should be extremely cau-
tious while publishing news or cases sub judice as it would otherwise amount
to trial by media. There is no doubt that the investigative role of media has
been instrumental in keeping a check on the maladministration of government
and exposing unlawful actions and crimes. The media has played a commend-
able role by taking an activist stance in a plethora of cases by pulling in the
accused to the hook.6 However, with the speedy growth of the press, trial by
media has become an acute problem.7

II. CONCEPT OF TRIAL BY MEDIA

Trial by media can be explained to be the coverage by media which arouses

desirable sentiments, creating media frenzy and negative dramatized miniseries
regarding criminal justice system, in effect, invoking infotainment (informa-
tion coupled with entertainment) around a criminal case.8 The advent of media
in all respects has a pre-judicial impact on the accused, suspect, judges, wit-
nesses and the administration of justice in general. The sensationalized cover-
age of events by the media has given rise to extreme arguments on the debate
between free speech and an individual’s right to fair trial as advocated by the
judiciary.9 There is a growing tendency on the part of media to incorporate the
version of law, crime and justice in a political and social scenario. The concept
of independence and impartiality of the judiciary is an essential prerequisite for
the due process of law and the right to a free trial should be guaranteed to an
accused.10

The rat race between cable channels for breaking news thereby the accused
getting labeled prior to the commencement of the investigation impairs the
right to fair trial and prejudicially impacts the administration of justice.11 The
efficiency of the legal system increases multi fold when guilt is proved by
procedure established by law and not with intrusion of external factors in the
due process. The judiciary has time and again emphasized the preservation of

5
Justice R.S. Chauhan, “Trial by Media: An International Perspective”, (PL Oct S-38, 2011)
<http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_
pdf=1&id=22062>., last visited on 3-9-2018.
6
All Answers ltd, “Effect of Trial by Media Before Courts” (Lawteacher.net, September 2018)
<https://www.lawteacher.net/free-law-essays/commercial-law/effect-of-trial-by-media-before-
courts-law-essay.php?vref=1> accessed 5 September 2018>.
7
Abolish Rather and Konika Satan, “Judicial Intervention in the Sub-Judice – The Emerging
Issues of Trial by Media”, Bharati Law Review (2015).
8
Helena Machado and Filipe Santos, “The Disappearance of Madeleine McCann: Public Drama
and Trial by Media in the Portuguese Press”, Crime Media Culture, (5(2)c146-147).
9
200th Report of the Law Commission on “Trial by Media: Free Speech v. Free Trial Under
Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”.
10
Ibid.
11
Ibid.
 CNLU LAW JOURNAL–2020-21  25

freedom of press to criticize and has subjected to scrutiny the functioning and
administration of the judicial process. The only reasonable restriction imposed
is the abuse of the freedom guaranteed to the press as absolute freedom cor-
rupts.12 The media has been constantly toiling to unearth the truth in most
cases and has played a central role in delivering justice in the infamous Jessica
Lal case13, Matoo case14 , Nitish Kataria case15 and the Nirbhaya case16 . There
needs to be a clear and distinct balance between the freedom of press and
right to fair trial in the interplay of litigation and media.17 The aforementioned
cases explicitly highlight the proactive role played by media which would have
otherwise resulted in a substantial downfall of administration of justice. The
accused was convicted and the case was fast tracked owing to the intervention
of media. There have been various occasions wherein the press has covered the
case in a professional manner and proved to be the fourth pillar of democra-
cy.18 What is necessary is that the media should not indulge in investigative
reporting but should rather concentrate on informative reporting without con-
ducting any parallel investigative trial which infringe constitutional rights.

It is the duty of the media to ensure that the information that it provides
does not infringe the right of the accused nor unduly influences the judicial
system in any manner whatsoever.19 Media has been seen to create a hysteria
among the public citizenry in high profile cases like the Sheena Bora mur-
der case20 or the Arushi Talwar case21, to name a few, wherein a controversial
reporting of the proceeding was done with a critical and unnecessary scrutiny
of the victim’s personal life. In the ISRO Espionage case22, the character of two
Maldivian citizens was questioned by the press and the media carried out a
sensationalized coverage and clouded the public opinion.

Media has been overriding the function of the judiciary by assuming a

superior role than what is accorded to it by conducting parallel investigation
in quest of evidence and thereby branding the accused or the suspect based
on their past conviction records and drawing conclusions by covering articles

12
Stroble v. State of California, 1952 SCC OnLine US SC 51 : 96 L Ed 872 : 343 US 181 1952.
13
Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1.
14
Santosh Kumar Singh v. State, (2010) 9 SCC 747.
15
Vikas Yadav v. State of U.P., (2016) 9 SCC 541 : 2016 SCC OnLine SC 1088.
16
Mukesh v. State of NCT, (2013) 2 SCC 587.
17
Navajyoti Samanta, “Trial by Media-The Jessica Lal Case”, Social Science Research Network,
(March 2008), available at SSRN: <http://papersssrn.com>.
18
Ruheela Hassan, “Freedom of Media in India-A Legal Perspective”, International Journal of
Humanitarian and Social Science, Vol. 3, Issue 2 (2014).
19
Madhavi Divan Goradia, Facets of Media Laws and Indian Constitution, (Anmol Publications
Pvt. Ltd., New Delhi 2005).
20
Pratim v. Union of India, 2018 SCC Online Bom 630.
21
Rajesh Talwar v. CBI, 2013 SCC OnLine All 13054 : (2013) 82 ACC 303.
22
Ram v. Siby Mathew, 2000 SCC OnLine Ker 381 : 2000 Cri LJ 3118.
26  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

at every stage of a sub judice case.23 Such extreme publicized coverage of

cases by the media is naturally bound to influence the judiciary as Justice
Frankfurter rightly observes that judges are no super human so such irrespon-
sible media investigation ought to affect the rational course of determination
thereby hindering the due administration of justice.

Media trial gives rise to a paradox between right to fair trial and the free-
dom of press. There is no justification for investigative journalism unless
done in the interest of public and the actions are bonafide or the justification
of truth. Such a defence is claimed under Section 13 of Contempt of Courts
Act wherein the Court acts as the supreme and final authority to judge whether
the publication done by media amounts to Contempt of Court or is a genuine
matter of public importance.24 It is necessary for the operations done by media
to be subject to reasonable restriction and be backed by prior consent. In R.K.
Anand v. Delhi High Court25, the concept of media trial was defined for the
first time by the court to mean “Impact of extensive pre-trial publicity and
coverage on a person’s reputation thereby creating a widespread perception of
guilt regardless of the verdict given in the court of law”. The issue in this case
was the legitimacy and validity of sting operation conducted by NDTV cable
channel in a sub judice matter as the very concept of sting operation is decep-
tive and the authenticity of such evidence is questionable.

III. SCOPE OF THE CONSTITUTIONAL PROVISION

OF FREEDOM OF SPEECH AND EXPRESSION

Article 19(1)(a) of the Constitution of India guarantees to every citizen the

freedom of speech and expression while Article 19(2) envisages the various
reasonable restrictions that the general provision under Article 19(1) is sub-
jected to. With regard to trial by media, the restrictions imposed is in the inter-
est of the security of nation, sovereignty an integrity of the State, public order
or in relation to contempt of court, defamation or incitement to offence.26 The
restrictions are a proof that freedom of speech and expression is not an abso-
lute right. There should be a clear balance between the right to fair trial and
right to free speech. Trial by media is an off shoot of the rights that flow from
Article 19(1)(a) which provide for the freedom of press. The provisions under
Article 19(1) should not be read in isolation but in consonance with Article
19(2) which would facilitate the administration of justice which the laws
relating to contempt seek to balance by imposing restrictions on prejudicial

23
Arpan Banerjee, “Judicial Safeguards Against ‘Trial By Media’: Should Blasi’s ‘Checking
Value’ Theory Apply in India?” Vol. 2, p. 28, Journal of Media Law & Ethics, (2010).
24
H.M. Seervai, Constitutional Law of India 723 (Universal Law Publishing Co. Vol. 1, 4th edn.
1991).
25
(2009) 8 SCC 106.
26
P.M. Bakshi, Press Law: An Introduction, (BTFRI Publications, 1985).
 CNLU LAW JOURNAL–2020-21  27

publications. Freedom of press is pivotal because of the check and balance

system that it ensures by restraining the abuse of power in a democracy. The
restrictions imposed do not have a set standard to measure the reasonableness
but such limitations are deemed to pass the test of reasonableness if they are in
no way excessive or disproportionate27, subject to the facts, circumstances and
merit of each case.28

The inclusion of the terms ‘liberty of thought, expression and belief’ in the
Preamble of the Constitution of India by the founding fathers of our nation sig-
nifies the protection of freedom of speech and expression. No special privilege
was accorded to the press. Dr. B.R. Ambedkar opined that press is yet another
way to express an individual’s beliefs29 and the Constitution of India from its
very inception, delayed no further in declaring the freedom of press as a deriv-
ative of the freedom of speech and expression. However, liberty of such mam-
moth magnitude carries with it a great scope of abuse. To facilitate the smooth
functioning of a political democracy, free press and speech are of vital impor-
tance.30 A definite balance must be struck between the freedom of press and
the consistency of the said laws in a democratic society that the Constitution of
India cherishes.31

The ‘direct and inevitable effect test’ was established in the Express
Newspaper Case32, wherein the Court held that a restriction cannot be imposed
on the press which would amount to a have a direct impact on its freedom of
circulation. In LIC v. Manubhai D. Shah33, it was held that it is important to
extend to the media the right to freely express its views, sans which would
result in a dictatorship and would defeat the whole purpose of a democracy.
The right to privacy must also be looked into when media is exercising its
right to free speech.34 For the smooth operation of the due process of justice, it
is necessary for the press to exercise its freedom of publication cautiously and
responsibly.35

IV. JUDICIAL INTERPRETATION OF TRIAL BY MEDIA

The phenomenon of media trial is attached with various nuances and com-
plexities which can be inferred from the judicial pronouncements explaining
27
Chintaman Rao v. State of M.P., AIR 1951 SC 118.
28
Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1
SCC 532 : AIR 1989 SC 973.
29
Constituent Assembly Debates Vol. VII, p. 786 (1.12.1948).
30
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
31
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671.
32
Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578.
33
(1992) 3 SCC 637 : AIR 1993 SC 171.
34
R. Rajagopal v. State of T.N., (1994) 6 SCC 632 : AIR 1995 SC 264.
35
Hamburg, “Free Press v. Free Trial: The Combination of Mr. Justice Frankfurter”, U. Pitt. L.
Rev, (1965).
28  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

the scope and the facets to trail by media. A major lapse in the reporting
by media was observed in the Mumbai Terror Attack Case36 where the cov-
erage by media risked the security of nation by spilling out details about the
life of security personnel, police and hostages. Media has been involved in the
enhancement of the Target Rating Points (TRP) in a nasty manner thereby con-
tributing to the menace of trial by media. Unless in the interest of the public or
for dismantling the truth, the reputation of an individual cannot be jeopardized
by the media. Notwithstanding the verdict of the court, the individual’s social
life is tarnished.37

In Leo Roy Frey v. R. Prasad38, the court ruled in favour of the media stat-
ing that there should be satisfaction beyond reasonable doubt that the publi-
cation hinders fair trial in a sub judice matter or it amounts to an imminent
proceeding.

In Rajendra Sail v. M.P. High Court Bar Assn.39, it was held that it is
extremely necessary in the current scenario to check for publications which
are contentious in nature. Court can invoke contempt proceedings against the
media house which tend to interfere with the due course of justice and their
right to free speech is not absolute. This was the ruling in Court on it’s own
Motion v. Times of India40.

In Harijay Singh, In re41, it was held that freedom of the press is not at a
higher pedestal than what is guaranteed to freedom of speech and expression.
The right of the media to propagate its views is subject to restrictions. One
of the effective tool to curb unlimited power in the hands of the media is the
Court’s power to initiate contempt proceeding. Broadcasting the half baked
version by portraying only one side of the story should be strictly checked
against since media caters to a huge audience. This was held in M.P Lohia v.
State of W.B.42. The role of the media was strictly defined in Rao Harnarain
Singh Sheoji Singh v. Gumani Ram Arya43 to report matters and not adjudicate
sub judice cases. However, if the criticism made by the media is fair, then it
wouldn’t amount to contempt.44

There is a fierce unhealthy competition among the media operators to break

the news to the public thereby putting at stake the interest of the public and
36
Mohd. Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.
37
Kartongen Kemi Och Forvaltning AB v. State , 2004 SCC OnLine Del 65 : (2004) 72 DRJ
693.
38
1958 SCC OnLine P&H 52 : AIR 1958 P&H 377.
39
(2005) 6 SCC 109.
40
2013 SCC OnLine P&H 6997.
41
(1996) 6 SCC 466.
42
(2005) 2 SCC 686.
43
1958 SCC OnLine P&H 21 : AIR 1958 P&H 273.
44
Ram Dayal Markarha v. State of M.P., (1978) 2 SCC 630 : AIR 1978 SC 921.
 CNLU LAW JOURNAL–2020-21  29

hindering the trial in court45. Thus, the courts have to entail a rather greater
pro active role by positively intervening and keeping a check on external fac-
tors that tend to interfere in criminal trial.

V. INTERPLAY BETWEEN FREE SPEECH AND

FAIR TRIAL-AN INTERNATIONAL PERSPECTIVE

There has been persistent discord between media and the judiciary which
is an inevitable dichotomy and there has been constant tussle between the two
Constitutional right of free trial and free speech thereby giving rise to dialogue
by way of various international instruments.46 The first of the many interna-
tional principles that lay down a firm foundation for International Criminal
Law is the Nuremberg Tribunal47, which aims at setting standards of fair trial.
The various international and national Human Rights instruments that have
emphasized on the harmonious coexistence of fair trial, freedom of media and
independence of judiciary are the United Nations, UDHR, ICCPR, ECHR,
ACHR and AFCHR. These instruments are limited in scope and non bind-
ing in nature.48 The origin of right to fair trial is said to have begun with the
Magna Carta.

Article 3 of the UDHR49 provides for right to life, liberty and security of
persons. Article 6 enshrines about independence of judiciary. Article 10 speaks
about independence and impartial tribunal. Article 11(1) provides for the pre-
sumption of innocence to ensure fair and public hearing. The ICCPR50 treaty
analyzed the principles laid down in UDHR and formulated principles on
the same lines. Article 1451 sets the minimum standard for fair trial. Article
18 enshrines the freedom of press which implicitly flows from the freedom of
speech and expression. Article 14(2) of ICCPR and Article 6(2) of ECHR pro-
vide for the principle of presumption of innocence of an accused in a criminal
trial until proven guilty. Article 6 of the ECHR, 1950 enunciates the entitle-
ment to every individual a fair and public hearing by an independent tribu-
nal. Provisions on similar lines find its place in Article 8 of the American
Convention on Human Rights (ACHR), 1969 and Article 7 of the African
Charter on Human and People’s Rights (AFCHR), 1981. The aforementioned

45
Ram Jethmalani and D.S.Chopra, Media Law, (Thomson Reuters, Vol. 1, 2nd edn., 2014).
46
Neeraj Tiwari, “Fair Trial vis-à-vis Criminal Justice Administration: A Critical Study of
Indian Criminal System”, Journal of Law and Conflict Resolution, Vol. 2(4).
47
Sivasubramaniam Bahma, “The Right of an Accused to a Fair Trial: The Independence and
Impartiality of the International Criminal Courts”, Durham University, (2013), available at 20
Durhum e-Theses online.
48
Furqan Ahmed, “Human Rights Perspective of Media Trial”, Asia Law Quarterly, 47-62 Vol.
I, No. 1.
49
Universal Declaration of Human Rights, 1948.
50
International Covenant on Civil and Political Rights, 1976.
51
Indian Constitution, Art. 14.
30  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

principles are proof of the fact that an impartial judicial system is pivotal to
right to fair trial. Article 10 of ECHR provides for the freedom of press.

Freedom of media is of as much paramount importance as is the right to

fair trial and independent judiciary and no particular right can outweigh
another and this is substantiated by way of numerous international principles
which provide for the co habitation of these basic principles.52 The Madrid
Principles in Media and Judicial Independence which was conducted by the
International Commission of Jurists in 1994 provide for the principles as
under53:
1. Freedom of media is constituted under freedom of expression and the
various facets of rights of media include seeking, disseminating and
imparting information to the public to facilitate the administration of
justice.
2. No restrictions should be imposed which are discriminatory in nature.
3. The basic principles are subject to be restricted in case of any sort of
prejudice to the defendant.
4. There should be no restrictions of any special nature applied to the
reporting of a matter concerning the administration of justice.
5. Every person shall have a right to communicate information about an
on going investigation.
6. Secrecy of investigation should be maintained to ensure the principle of
presumption of innocence of the accused.

More often than not, truth evolves from the opposing opinions and its sup-
pression would amount to detrimental growth which the freedom of speech
aims at fostering54. Media is a narration of the happenings in the court and
aims at preventing miscarriage of justice. The principle of ‘Presumption of
innocence’ is an important facet of criminal law as the burden of proof lies
with the prosecution to prove otherwise, beyond reasonable doubt. The legis-
lative intent behind this is the inference of the legal system that a person, by
nature, is innocent and dignified. Unless proven by the procedure established
by law, no person can be assumed to be guilty. Even if there remains an iota
of doubt in the mind of the judge, then the accused is acquitted because of
the underlying jurisprudence that it is better for hundred guilty men to be

52
Dr L.V. Singhvi, “Draft Universal Declaration on the Independence of Justice”, UN Special
Rapporteur, 1989.
53
The Madrid Principles on the Relationship Between the Media and Judicial Independence,
Established by a Group Convened by International Commission of Jurists, its Centre for the
Independence of Judges and Lawyers, & the Spanish Committee of UNICEF, 1994.
54
Gregg Barak, “Mediatizing Law and Order, Applying Cottle’s Architecture of Communicative
Frames to the Social Construction of Crime and Justice”, Crime Media Culture, (2007).
 CNLU LAW JOURNAL–2020-21  31

acquitted than a single innocent man to be convicted for an act he has not
committed.. Presumption of innocence carries with itself the sacrosanct prin-
ciples of Right to Equality, Right against Self incrimination, Right to life and
personal liberty and the Right to a fair trial in a just and reasonable manner.
Media responsibility is of utmost importance to ensure that the cardinal prin-
ciples contained in various International declarations with respect to individ-
ual liberties are not violated.55 There is a dire need to develop an approach to
control the pre judgement of a case by the media and protect the defendant’s
inherent Constitutional rights.

The concept of neutralizing technique was for the very first time adopted in
the case of O.J. Simpson56. This technique is not prohibitive but seeks to strike
a harmonic coexistence between free speech and fair trial in light of adminis-
tration of justice.57 In India, there are a plethora of precedents, Brij Bhushan v.
State of Delhi58, Virendra v. State of Punjab59, to list a few, where in a balance
between Article 19(1)(a) and pre censorship has been observed by way of prior
restraints60. Courts are inherently vested with the power to prohibit media pub-
lications in relation to a proceeding, temporarily. The alarming rate at which
media has been involved in reporting of sub judice cases is hindering the due
process of justice, tampering with the merits of the case and affecting the sen-
timents of the parties. In Sahara India Real Estate Corpn. v. SEBI61, the court
realized the need to lay down guidelines on the manner and scope of reporting
of pre trial matters by the media. Postponement orders passed by the court on
publication, for a temporary duration, is not a punitive measure but a preven-
tive one to maintain an equilibrium between competing rights on the account
of failure of the neutralizing technique.

VI. RIGHT TO FAIR TRIAL

The concept of fair trial is a complex right with multiple facets attached to
it which manifests in a number of legal rules and the Constitutional foundation
of this procedure is observed in Article 21 to facilitate administration of jus-
tice. Media houses have to ensure that they maintain a sync between right to
privacy, free speech and uplift the cherished principles of a democratic society
that the Constitution of India lays down by granting ample protection to the
private life of an individual.62

55
R. v. David Edwin Oaks, 1986 SCC OnLine Can SC 6 : (1986) 26 DLR 20.
56
State v. Simpson, No. BA 097211 (Cal. Super. Ct filed July 22, 1994).
57
200th Law Commission Report, supra.
58
AIR 1950 SC 129.
59
AIR 1957 SC 896.
60
K.A. Abbas v. Union of India, (1970) 2 SCC 780 : AIR 1971 SC 481.
61
(2012) 10 SCC 603.
62
H.M. Seervai., Constitutional Law of India 723 (Universal Law Publishing Co. Vol. 1, 4th
edn. 1991).
32  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

Right to equality underlies with it the Right to fair trial which is an adjunct
of Article 2163 of the Indian Constitution and is a guarantor against any kind
of discriminatory action64 made against the accused or suspect at any stage
of the trial. In this way, equal treatment before law is fostered. This was held
in Maneka Gandhi v. Union of India65. Further the right to remain silent is a
constitutional privilege under Article 20(3)66 of the Indian Constitution which
enshrines the right of an accused against self incrimination67. No person
accused of any offence shall be compelled to be a witness against himself.
Section 316, 315, 313 and 161(2) of the Code of Criminal Procedure Code and
various provisions of the Evidence Act, further substantiate on similar lines by
giving immunity and protection to an accused at any stage of the trial68. Media
interferingin a proceeding and affecting the right of an individual to be pre-
sumed innocent is gross miscarriage of justice.

The importance of the fundamental right of presumption of innocence was

emphasized in Vishaka v. State of Rajasthan69. In P.N. Krishna Lal v. Govt. of
Kerala70, principle of ‘Presumption of innocence’ was established to be a part
and parcel of a good number of covenants of Indian law. However, the media,
with complete disregard to this sacrosanct principle of criminal law oversteps
it’s boundaries by apprehending a suspect or accused in a trial as the ‘convict’
which completely clouds a free trail with bias. It was held in National Legal
Services Authority v. Union of India that it is the court’s duty to interpret the
law of the land without being influenced by the public sentiment aroused by
the media.71 It is important to categorize the stages of a criminal trial into pre
trial, actual trial and post trial, as they entail a chain of action and playing
with the right at one stage would amount to adverse repercussions thereby
drifting the trial and misleading the due process of law72.

VII. LAW OF CONTEMPT

The genesis of the law of contempt dates back to 1921. The meaning of
‘Contempt’ has seen a shift from a restrictive definition as an offence against
the sovereign to an exhaustive definition to ensure the administration of jus-
tice without any undue interference.73 The general meaning of the term con-
tempt includes any act which shows disgrace, wilful disobedience or any act
63
Indian Constitution, Art. 21.
64
Ibid.
65
(1978) 1 SCC 248 : AIR 1978 SC 597.
66
Indian Constitution, Art. 20, Cl. 3.
67
Ibid.
68
Code of Criminal Procedure, 1973.
69
(1997) 6 SCC 241 : AIR 1997 SC 3011.
70
1995 Supp (2) SCC 187.
71
(2014) 5 SCC 438 : AIR 2014 SC 1863.
72
Consultation Paper of Media Law, Government of India, Law Commission of India, 2014 May.
73
Contempt Power of Court, www.legalserviceindia.com/article, last visited on Aug 24, 2018.
 CNLU LAW JOURNAL–2020-21  33

in violation of the order of a court tending to lower the dignity of the court.74
The legislative intent behind the law of contempt is to ensure the due process
of justice and secure the sanctity and authority of the judiciary by empower-
ing the court with inherent power to hold an individual for contempt if found
obstructing the administration of justice. There have been developments made
to the law of contempt of a tremendous magnitude,to act as a powerful mech-
anism to secure justice.75 In Govind Sahai v State of U.P.76, court emphasized
that contempt applied to any conduct that tends to lower the authority of the
court or interferes and prejudices fair trial of a proceeding, either pending or
imminent.77

With the increasing reports of cases of contempt, the Contempt of Court

Act, 1952 was subject to scrutiny and a committee named Sanyal Committee
was appointed to look into the same. The committee examined the legislation
in question and made recommendations along with a draft bill for codification.
The primary issue that was analysed was the need to ensure administration of
justice and its conflict with freedom of press. The main recommendation was
pertaining to the judicial proceeding wherein the knowledge of judicial pro-
ceeding came to become a defense to a publisher. This clearly highlighted the
importance given to the freedom of press over other issues. The committee
further suggested to uphold the continuance of the term ‘imminent proceed-
ings’ which would attract liability on account of interference. In Padmawati
Devi Bhargava v. R.K. Karanjia78, the filing of an FIR was considered to be
the starting point of the pendency of a judicial proceeding and would amount
to sub judice reporting79. Great reliance on A.K. Gopalan v. Noordeen80 by the
Sanyal Committee81 was observed wherein lodging of First Information Report
(FIR) was not considered to be the starting point of pendency of trial nor was
it considered to be imminent as a proceeding is said to be imminent only after
the arrest takes place. Owing to the shortcomings in the report submitted by
the Sanyal Committee, the Joint Parliamentary Committee was constituted
which suggested major changes which was incorporated in the Contempt of
Courts Act, 1971. Thus trial by media, prejudicing administration of justice
and scandalous reporting on sub judice matter were considered to be serious
offenses for which the Contempt legislation carried remedies.

74
Justice Tek Chand, The Law of Contempt of Court and Legislature, (University Book Agency
Allahabad 4th edn., 1997).
75
Gordon Borrie and Nigel Lowe, The Law of Contempt, (Butterworth & Co. Publishers Ltd.,
1973).
76
AIR 1968 SC 1513.
77
C.S. Subrahmaniam, In re, 1952 SCC OnLine Mad 283 : AIR 1953 Mad 422.
78
1962 SCC OnLine MP 71 : AIR 1963 MP 61.
79
Surendranath Mohanty v. State of Orissa, 1996 SCC OnLine Ori 216, Rajendra Kumar Garg
v. Shafiq Ahmad Azad, 1956 SCC OnLine All 377 : AIR 1957 All 37.
80
(1969) 2 SCC 734.
81
Sanyal Committee Report, 1963.
34  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

Article 12982 and 21583 of the Constitution of India empower the Supreme
Court and the High Court with inherent power to initiate contempt proceedings
against anyone hindering the administration of justice. In J.R. Parasahar v.
Prashant Bhushan84, the aforementioned provision is not independent of Article
19(1)(a) and there is reliance laid on the freedom of speech and expression as
held otherwise Vinay Chandra Mishra, In re.85 Under the Contempt of Courts
Act, 197186, contempt is classified into both criminal and civil. Section 2(c) of
the Act defines ‘contempt’ to include:
1. Scandalizing the court
2. Interference with the due course of any judicial proceeding
3. Interference with the administration of justice

Section 2(c) includes the term ‘publication’ which is applicable to all the
above mentioned heads of contempt. This implies that any publication that
unnecessarily intervenes or interferes with the judiciary or lowers the confi-
dence of the public by misrepresentation of sub judice matters would amount
to contempt of court. Any publication which is contentious in nature leading
to a media trial would attract contempt proceedings and a limitation can be
imposed on the freedom of the press.87 To not only protect the judiciary but
also to uphold the confidence of the public, the Contempt of Courts Act, 1971
was passed.88

Section 4 of the Contempt of Courts Act, 1971 provide for the exceptions to
contempt which include publication of fair and accurate report of the judicial
proceeding which grants immunity to the press from being held for contempt.89

Fair reporting is subjective and should be determined on a case to case

basis. A one sided report of the act must not be presented to the public.
Section 5 of the Act immunizes the media from contempt for reporting of a
fair and reasoned criticism made in good faith and made in the greater inter-
est of the society. As long as the statement made is done in bonafide intention
and is truthful in all aspect, Section 13(b) of the Act grants immunity for any
such publication90. The Press Council Act, 1978 has laid down guidelines and
82
Indian Constitution, Art. 129.
83
Indian Constitution, Art. 215.
84
(2001) 6 SCC 735.
85
(1995) 2 SCC 584 : AIR 1995 SC 2348.
86
The Contempt of Courts Act, 1971, Acts of Parliament, 1971 (India).
87
Law in Perspective: Media Reporting and Contempt of Court: The Law Revisited (Feb.13,
2011), <http://legalperspectives.blogspot.com/2011/02/media-reporting-and-contempt-of-court.
html last visited on Aug 20, 2018>.
88
D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216.
89
Subhash Chand v. S.M. Aggarwal, 1983 SCC OnLine Del 342 : 1984 Cri LJ 481.
90
Indian Law Institute, Restatement of Indian Law Contempt of Court, (Saurabh Printers Pvt.
Ltd 1st edn., 2011).
 CNLU LAW JOURNAL–2020-21  35

restrictions on the media on reporting matters that are sub judice by way of
norms and an ethical code. However, these guidelines are limited in their scope
and applicability as they are not legally binding.

VIII. CONCLUSION AND SUGGESTION

Media is a powerful medium and aids in the exchange and communication

of ideas and opinion. An independent media is a carrier of courage and plays
an active role in the quest of truth in a democracy. But, a free press entails
with it the responsibility to realize the consequences of its actions. The inter-
play between the right to freedom of speech and expression and the right to
fair trial has resulted in a conflict between the competing rights. There is a
dire need to curb the implications of media trial as it affects the criminal jus-
tice system and the public at large. To harmonize fair trial and free press, it
is necessary to enforce the Contempt of Courts Act, 1971 efficiently. Until the
verdict of the Court on a sub judice matter, the media has a duty to report fair
and accurate facts with no prejudice whatsoever. Media has to understand the
underlying legal consequences principles of criminal justice system. The exist-
ing legislation do not encompass modern technological developments of media
which amount to legal dilemmas. Media coverage on past conviction or on the
character of an accused creates a widespread perception in the minds of the
readers about the individual.

Media needs to turn to statute, legal principles, legal judgments and guide-
lines in order to put away litany of ban and restrictions. Reporters need to
develop an informed attitude and understanding with regard to procedure of
reporting of court proceeding. A rather more feasible option is to implement
strict punitive actions to punish and prevent publication that surpass Article
19(2) to (6) hindering the administration of justice by over weighing Article
19(1)(a). Court should impose punitive measure under the Contempt of Courts
Act, 1971 to have a deterrent effect on sensationalized coverage of news. This
is a strict liability approach as followed in the UK and US legal system, laid
down as the Bench-Bar-Press guidelines91, to mitigate the effects of pre trial
publicity.

Further, journalist sought to be given proper training in certain aspects of

law relating to freedom of speech and the restrictions imposed therein, law of
defamation and contempt.92 It must be included in the syllabus for journalism
and special diploma on the inter-relation between law and journalism must be
taught.

91
Bench-Bar-Press Committee of Washington, available at <www.courts.wa.gov/prog>.
92
200th Report of the Law Commission on “Trial by Media: Free Speech v. Free Trial Under
Criminal Procedure (Amendments to the Contempt of Court Act, 1971)”.
36  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

According to Section 3 of the Contempt of Courts Act, 1971, a judicial pro-

ceeding is said to be pending in case of a civil proceeding on the institution
by way of filing of a complaint and in a criminal proceeding, under the Code
of Criminal Procedure, 1898, when the charge sheet is filed or when the court
issues summons or warrant against the accused or when the Court takes cogni-
zance of the matter, until the case is finally decided including appeals or revi-
sion petitions.93 Thus, the definition of ‘publication’ under the law of contempt
gives complete immunity to the media to make publications regarding the case
or relating to the character of the accused during the pre-trial stage. Even if the
reporting is prejudicially affecting the case but is done before the filing of the
charge sheet, the media cannot be held liable for contempt and can get away
even after tainting the reputation of the accused. This is a serious and grave
lacuna in the existing law as with the advent of technology, the highest degree
of investigative journalism is observed during the pre-trial stage of the crimi-
nal proceeding.

While under the common law, interference with imminent and pending judi-
cial proceeding amounts to contempt but the Contempt of Courts Act, 1971
only punishes any interference in pending judicial proceeding. The wide and
vague scope attributed under the existing law paves way for lacuna in the
determination of sub judice period and grants immunity to media without
attracting contempt proceedings. The ambiguity lies in the reporting of con-
tentious publication regarding the suspect or the accused during the pre-trial
stage before the event of pendency as the vital gap between an accused and
a suspect affects the rights of the accused sabotaging the grassroots of jus-
tice even prior to it’s commencement. Sub judice matters means matter under
judicial consideration. The starting point of pendency has gone several amend-
ments in the Contempt of Courts Act, 1926, Contempt of Courts Act, 1952,
Report of the Sanyal Committee, 1963 to the existing Contempt of Courts Act,
1971, from filing of FIR, date of arrest, pending and imminent proceedings
to the present explanation of pendency under section 3 of the Act. The diffi-
culty in fixing the time onwards which a proceeding may be treated as pend-
ing still persists. What the legislature must keep in mind while bringing about
an amendment is to identify the point at which there lies a substantial risk of
interference with the administration of justice.

93
Justice Tek Chand, The Law of Contempt of Court and Legislature, (University Book Agency
Allahabad 4th edn., 1997).
 CNLU LAW JOURNAL–2020-21  37

BIBLIOGRAPHY

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1. Abolish Rather and Konika Satan, Judicial Intervention in the Sub-
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38  A CRITICAL ANALYSIS OF TRIAL BY MEDIA

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27. Universal Declaration of Human Rights, 1948.

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courts-law-essay.php?vref=1> accessed 5 September 2018.
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ited on Aug 24, 2018.
 CNLU LAW JOURNAL–2020-21  39

30. Justice Markandey Katju, The Role the Media should be playing in
India, The Hindu, November 5, 2011.Trial by Media: Looking Beyond
The Pale of Legality, Civil Services Times Magazine, (Jul.12.2001),
available at http://www.civilservicestimes.com.
31. Justice R.S. Chauhan, Trial by Media: An International Perspective,
(PL Oct S-38, 2011) http://www.supremecourtcases.com/index2.php?op-
tion=com_content&itemid=1&do_pdf=1&id=22062., last visited on
September 3, 2018.
32. Law in Perspective: Media Reporting And Contempt of Court: The Law
Revisited (Feb.13, 2011),http://legalperspectives.blogspot.com/2011/02/
media-reporting-and-contempt-of-court.html last visited on Aug 20,
2018.
33. Navajyoti Samanta, Trial by Media-The Jessica Lal Case, Social
Science Research Network, (March 2008), available at SSRN: http://
papersssrn.com.

Sivasubramaniam Bahma, The right of an accused to a fair trial: The

independence and impartiality of the international criminal courts, Durham
University, (2013), available at 20 Durum e theses online.
 APPLICATION OF ECONOMIC
TOOLS IN ENVIRONMENT & LAW:
A STEP TOWARDS SUSTAINABLE
DEVELOPMENT AND GREEN
ECONOMY IN INDIA
—Divyanshu Gupta*

A bstract — Over the past few years, every country is tackling

with environment degradation and India is one of the few
countries in the World whose economic growth has tremendously
increased. This economic growth has given rise to many
employment opportunities, establishment of industries, rapid
urbanization, commercialization etc. But India’s remarkable
economic growth has been recognized through degradation
and pollution of environment, ecological imbalance, water
scarcity etc. Considering the size and diversity of its economic
structure, environment risks are far-reaching at its heights. The
term ‘Green Economy’ has been capturing around the entire
world where every country is now focusing on environmental
issues, adopting green economy as their fundamental economy
and working towards sustainable development. India so-far is
facing the difficulty of co-existence of the conventional economic
growth strategy and slow effort to mitigate and adapt to the
climate change issues. In present scenario, shutting down of
industries or reducing the production system will ripple the
Indian economy in the sake of tackling climate change. Adopting
the multi-disciplinary Green approach will have negative effects
on employment, trade, agriculture activity, business pattern,

*
3rd year BBA LLB (Hons), Symbiosis Law School, Pune.
 CNLU LAW JOURNAL–2020-21  41

which definitely requires, new policies, fiscal reforms, international

trade relations and trade patterns with the other countries, skill
development program, extensive research, development of resource
efficiency. Judicious consideration and framing of law and policies
of manageability factor into the continuous financial choices for
boosting framework and assembling can set things moving for putting
the Indian economy on the Green Economy way. This article will deal
as to how one can apply economic tools in the field of environment
attaining sustainable development. These economic tools could help
us to develop and better understand the efficiency and working of law
and hence, India can adopt the principles of green economy in line with
economic development.

Key Words: Green Economy, Sustainable Development, Environment, cli-

mate, law, policy.

I. INTRODUCTION: WHAT IS GREEN ECONOMY

The UNEP defines green economy as one that results in improved human
well-being and social equity, while significantly reducing environmental risks
and ecological scarcities.1 In simple words, green economy is considered as
reduction of carbon emission, resource efficient and social inclusive. After
the Global Financial Crisis, 2008, the world has decided to adopt GLOBAL
GREEN ECONOMY concept with the aim of reviving the world economy,
saving and creating jobs, protecting vulnerable groups, promoting sustainable
and inclusive growth, reducing risks from carbon dependency and ecosystem
degradation and achieve the Millennium Development Goals (MDGs), 2000.2
However, the concept itself first emerged with Pearce et al.’s (1989) Blueprint
for a green economy for the UK’s Department for the Environment.3 There is
no unique definition of the green economy, but the term itself underscores the
economic dimensions of sustainability or, in terms of the recent UNEP report
on the green economy, it responds to the “growing recognition that achieving
sustainability rests almost entirely on getting the economy right”.4 Green econ-
omy policy measures have also been discussed at length in international nego-
tiations, including UNCED in Rio in 1992. For example, the Rio Declaration

1
Doreen Fedrigo-Fazio and Patrick ten Brink, Green Economy, What do We Mean by Green
Economy? UNEP, (May 2012).
2
Satrajit Dutta, “ ‘Green Economy’ in the Context of Indian Economy”, International Review
of Research in Emerging Markets and the Global Economy (IRREM), (2016, Vol. 2, Issue 3).
3
Global Green Economy: A Review of Concepts, Definitions, Measurement Methodologies and
their Interactions, p. 3, (2017, Vol. 4, Issue 1).
4
Jos Antonio Ocampo, Aaron Cosbey and Martin Khor, the Transition to a Green Economy:
Benefits, Challenges and Risks from a Sustainable Development Perspective, United Nations
Conference on Trade and Development (UNCTAD), United Nations Environment Programme
(UN Environment), United Nations Department of Economic and Social Affairs (UNDESA).
42  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

included principles promoting the internalization of environmental costs and

the use of economic instruments (Principle 16) as well as eliminating unsus-
tainable consumption and production (Principle 8).5

Hence, Green economy strives to achieve growth in income and employ-

ment generation by providing public and private investments at domestic level
and international level through reduction in carbon emission, enhance resource
efficiency and avoid loss of biodiversity and ecological system. In contrast to
the current economy where GDP growth is determined through conventional
way, in green economy the GDP growth will be determined taking into consid-
eration the ecological impact of the productivity of the country. It will give us
with another perspective on GDP, one that can improve environment protection
and resource utilization in a rational manner.6

II. PRINCIPLES OF GREEN ECONOMY

In 2012, Northern Alliance for Sustainability, an international non-profit

organization representing a network of NGO in the northern hemisphere pub-
lished 8 principles for green economy which was discussed in the workshop
held in 2011.7 These principles as evolved form the basis of Green Economy.
The identified principles are stated below8:

ƒƒ The Earth Integrity Principle: The Earth, her characteristic networks and
environments, have the basic ideal to exist, prosper and develop, further-
more, to go ahead with the essential cycles, structures, capacities and rules
that continue all creatures. Each human has an obligation to make sure and
protect her.

ƒƒ The Planetary Boundaries Principle: This principle states that human

needs are dependent on ecological system and there are limits to economic
growth. The government must set long-term plans which does not affect
ecological imbalance. It should meet the requirements of an economic
growth.

ƒƒ The Dignity Principle: This principle states that every human being in
present and in future has a right to livelihood. Poverty eradication and

5
Cameron Allen and Stuart Clouth, A Guidebook to the Green Economy, UN Division for
Sustainable Development, (August 2012).
6
Surya Bhakta Pokharel and Bishnu Prasad Bhandari, “Green GDP: Sustainable
Development”, (May 5, 2017 5.07 a.m.), <https://thehimalayantimes.com/opinion/
green-gdp-sustainable-development/>.
7
A Guidebook to the Green Economy – Issue 2: Exploring Green Economy Principles, <http://
www.greengrowthknowledge.org/ sites/default/files/downloads/resource/GE,guidebook Issue2:
UNDESA pdf>.
8
Ibid.
 CNLU LAW JOURNAL–2020-21  43

redistribution of wealth in economical way should be the main priority of

the Government and measured in those terms.

ƒƒ The Justice Principle: This principle ensures that benefits and burdens must
be reasonably shared by all. This includes the use of natural resources,
access to goods and services and responsibility not to avoid and compen-
sate for all the losses and damages. All institutions, corporates and deci-
sion-makers need to be liable to approach principles of responsibility and
personal obligation about their choices.

ƒƒ Precautionary principle: This principle ensures that new products and

technologies developed should not have harmful effect on environment,
human beings, ecosystem. It should not have destruction and unexpected
efforts on humanity and environment. The burden of proof should lie on
the person concerned and he/she should avoid the shifting of burden.

ƒƒ The Resilience Principle: It emphasizes that diversity and diversification

are preconditions for sustainability of life. A diversity of organizational
models and governance levels needs to be cultivated, along with diversified
economic activity that minimizes commodity dependence.

ƒƒ The Governance Principle: The Governance Principle states that subsid-

iary democracy must be upheld and revitalized in accordance with the
principle of prior informed consent. All policies, rules and regulation need
transparent and participatory negotiations that include all affected people.
Structural transformation should be driven by appropriate public invest-
ments that guarantee benefit sharing.

ƒƒ Beyond GDP Principle: This principle recognizes that mere GDP should
not be used as a measure for progress and growth. But we have to design
policy goals in such a way that it takes into account environment, social
well-being and environment policies and this will show the real GDP
growth.

III. GREEN ECONOMY AND SUSTAINABLE

DEVELOPMENT IN INDIA

The main motive of the green economy is to make sure sustainable devel-
opment and meet a harmonious construction between economic and ecolog-
ical development as expressed by Brutland Report to a perspective in which
socially sustainable development is the aim, ecological sustainability is a
44  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

fundamental need and the economy is seen as a tool.9 India being a member
State of United Nations Environment Programme has adopted the 2030 agenda
for Sustainable Development. This agenda is a plan of action for people, planet
and prosperity.10 It integrates and recognizes eradicating poverty in all spheres,
removing inequality among member States, preserving planet and sustaining
economic growth.11

India ranked very poor in SDGs 2018 index-112 out of 156 countries
assessed.12 This clearly indicates that India has a long journey to go ahead in
achieving Sustainable Development Goals.

In 2013 as a result of air pollution, India suffered a loss of 8.5% equiva-

lent to GDP.13 Furthermore, World Bank released a report in 2016 that gave the
assessment that annual cost of environment degradation in India amounts to
about 3.75 trillion equal to 5.7% of GDP.14 Although the economy (GDP) of our
country is increasing, but the negative consequences will be seen in the long
run. Sustainability of nature and ecological system has been considered nec-
essary because of the extraordinary vulnerability in terms of life for which we
all need to suffer in future or at later stage if there is any extreme change in
the structure of an environment causing elimination of a portion of the essen-
tial plant and species, diminishing biodiversity and influencing our biological
system.

IV. GREEN GROWTH

Green growth involves rethinking growth strategies with regard to their

impact on environmental sustainability and the environmental resources avail-
able to poor and vulnerable groups.15 Ministry of Environment, Forest and

9
Eva Alfredsson Anders Wijkman, The Inclusive Green Economy Shaping Society to Serve
Sustainability –Minor Adjustments or a Paradigm Shift? Mistra, (April 2014).
10
<https://www.undp.org/content/undp/en/home/2030-agenda-for-sustainable-development.html>.
11
Ibid.
12
Sachs, J., Schmidt-Traub, G., Kroll, C., Lafortune, G., Fuller, G., SDG Index and Dashboards
2018, Report 2018, New York: Bertelsmann Stiftung and Sustainable Development Solutions
Network (SDSN).
13
World Bank and Institute for Health Metrics and Evaluation 2016. The Cost of Air Pollution:
Strengthening the Economic Case for Action. Washington, DC: World Bank, (Updated: 9 Sep
2016, 3.22 a.m. IST). Dipti Jain, “Air Pollution Cost India 8.5% of its GDP in 2013: Study”
<https://www.livemint.com/Opinion/AU3JZ499V8mJKHbUEZEDmO/Air-pollution-cost-India-
85-of-its-GDP-in-2013.html>.
14
World Bank, 2013, India: Diagnostic Assessment of Select Environmental Challenges, Volume
2, Economic Growth and Environmental Sustainability, What are the Tradeoffs? Washington,
DC. © World Bank. (Volume 2) <https://openknowledge.worldbank.org/handle/10986/16028
License: CC BY 3.0 IGO>.
15
13th Finance Commission Report, 2010-2015, (Vol. 1), <https://www.prsindia.org/uploads/
media/13financecommissionfullreport.pdf>.
 CNLU LAW JOURNAL–2020-21  45

Climate Change has recognized that green growth and poverty eradication will
give the vision of Sustainable Development.

Under the Copenhagen Accord, India has advocated its domestic mitigation
action as an endeavor to cut the emissions intensity of its GDP by 20–25%
by 2020 in comparison to the 2005 level.16 More recently in its Intended
Nationally Determined Contributions (INDCs), India has announced to cut the
emissions intensity of its GDP by 33–35% by 2030 in comparison to the 2005
level.17 Subsequently green development has assumed importance in the envi-
ronment justice.

This concept has far reaching effort to mitigate climate degradation and in
the meantime accomplish economic development that is socially comprehensive
and environment sustainable. A developing country like India whose economy
is rising at a faster pace, environment effect is threatening as it will place seri-
ous constraints on land, water, fuel, energy and high commodity prices.

According to World Bank Report18, rising temperature and change in rain-

fall pattern could cost India 2.8 % of GDP and lower the living standards of
about half of the country’s population by 2050. This will result in low agri-
cultural yields, lower labor productivity and degradation in health. There will
be water crisis, food crisis leading to higher demand of essential commodities
and higher prices. The amount to which our economy will grow green will
depend upon its capacity to cut the quantity of resources required to support
the economic growth and development to enhance social equity and employ-
ment creation. Green growth and its development will play an important role
in balancing these priorities. It has been projected that 30% reduction in par-
ticulate emission will lower the GDP about $ 97 billion or 0.7% with very lit-
tle impact on GDP growth rate.19 It will significantly reduce the harm done to
health by $105 billion which to some extent will compensate the loss.20

The entire point of Green economy is to develop an economy which will

check the environment issues and scarce use of natural resources. India will
have to suffer in the long run if such issues are not taken into consideration.
So not only the economy of the country will run smoothly without affect-
ing its GDP growth, but it will also include judicial decision on sustainable

16
Green Growth and Sustainable Development in India: Towards the 2030 Development
Agenda, TERI & Global Green Growth Institute, <https://www.teriin.org/projects/green/pdf/
National_SPM.pdf>.
17
Ibid.
18
<https://www.worldbank.org/en/news/press-release/2018/06/28/climate-change-depress-living-
standards-india-says-new-world-bank-report>.
19
<http://www.worldbank.org/en/news/press-release/2013/07/17/india green growth necessary and
affordable for India says new world bank report>.
20
Ibid.
46  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

development for boosting infrastructure and other sectors of the Indian econ-
omy on the green economy path.

V. JUDICIAL ACTIVISM AND SUSTAINABLE

DEVELOPMENT IN INDIA

After Bhopal Gas Tragedy in 1984, India saw development in the field
of environmental jurisprudence and has seen an impressive series of other
cases in environment law.21 One such legislation passed by Parliament was
Environment Protection Act 1986. This was an “umbrella” legislation designed
to give a framework for Central Government coordination of the activities of
various Central and State authorities established under previous laws such as
the Water Act and the Air Act.22 This reality couldn’t be ignored that devel-
oping countries like India whose economy is developing at a quicker pace and
environment degradation in these developing countries and worldwide, experts
internationally came with the doctrine called Sustainable Development, means
a balance between development and environment.

This concept first came into limelight during UN conference on Human

Environment held at Stockholm in 1972. But the proper definition came into
picture in the Brutland Report of 1987 which defines Sustainable Development
as “development that meets the needs of present generation without compro-
mising the ability of the future generations to meet their own needs.”23 This
report accentuated on the significance of development in terms of economic
development and ecological development. The ultimatum is to merge and
integrate economic and ecological considerations into decision-making.24 The
world Summit on Sustainable Development in Johannesburg in 2002 was held
to address the issue of environment degradation, achieve speedy economic
growth and keep an eye on depleting natural resources that future generations
will need for their progress and prosperity. The Summit focused on three core
issues and identified that in order to achieve sustainable development, eco-
nomic development, social development and environment protection has to be
integrated together.25

Indian Judiciary in a bid to preserve ecological system and protect

from environment degradation has played an important role in embracing
Sustainable Development. The Principle of Sustainable Development for the

21
Abraham, C.M., (1991) “The Indian Judiciary and the Development of Environmental Law”,
South Asia Research, 11(1), pp. 61–69. <https://doi.org/10.1177/026272809101100104>.
22
<http://www.ecology.edu/environmental-legislation.html>.
23
Report of the World Commission on Environment and Development: Our Common Future, p.
41. <https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf>.
24
Ibid.
25
<https://www.un.org/development/desa/dspd/2030agenda-sdgs.html>.
 CNLU LAW JOURNAL–2020-21  47

first time was adopted in Vellore Citizens’ Welfare Forum v. Union of India
and the court held that “Remediation of the damaged environment is part of
the process of ‘Sustainable Development’ and as such polluter is liable to pay
the cost to the individual sufferers as well as the cost of reversing the damaged
ecology.”26 In Narmada Bachao Andolan v. Union of India, it was held that
“Sustainable Development would come into play which will ensure that mitiga-
tive steps are and can be taken to preserve the ecological balance.”27

In M.C. Mehta v. Union of India, “it was held that Development and
Environment Protection are not enemies. It is possible to carry to on develop-
ment activity applying the principles of Sustainable Development, in that even-
tuality development has to go on because one cannot lose sight on the need for
development of industries, irrigation resources and power projects etc. includ-
ing the need to improve employment opportunities and generation of revenue.
A balance has to be struck.”28 In Indian Council for Enviro-Legal Action v.
Union of India, the court held that, “while economic development should not be
allowed to take place at the cost of ecology or by causing widespread environ-
ment destruction and violation, at the same time the necessity to preserve ecol-
ogy and environment should not hamper economic and other developments.”29

These judgments on the interpretation of Sustainable Development by the

Supreme Court clearly indicate that importance has to be given to sustaina-
ble development and environment and vice-versa. In order to preserve ecolog-
ical imbalance and degradation, developmental activity has to be regulated.
Therefore, we need to adopt stringent economic policies, legislations, laws, reg-
ulations and advance technologies which will ensure sustainable development
(economic development as well as environment development).

VI. APPLICATION OF ECONOMIC TOOLS IN GREEN

ECONOMY AND INDIAN LEGAL SYSTEM-

Essential to an understanding of the law and economics movement is a

set of fundamental concepts. The most central assumption in economics is
that human beings are rational maximizers of each satisfaction and, in turn,
respond to incentives. It is important to realize that economics, as understood
here, is not restricted to analysis of monetary issues; there are non-monetary
aspects as well. Usually what is aimed through economic reasoning is the
improvement of efficiency. A more efficient allocation is one that increases
the net value of resources. To being efficient is the main goal of all economic
regulation.

26
(1996) 5 SCC 647 : AIR 1996 SC 2715.
27
(2000) 10 SCC 664 : AIR 2000 SC 3751.
28
(2004) 12 SCC 118.
29
(1996) 5 SCC 281.
48  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

Environment law and economics refers to the use of economic tools and
practices in framing laws and policies to study how humans impact the ecosys-
tem and its resources. From a macroeconomics perspective, economic tools are
used to study how different taxes and subsidies, laws, regulations and policies
promote a healthy environment. At the microeconomic level, economic tools
can be used to study how laws and regulations influence the behavior of firms
and households to arrive at a predictable environment assessment. The follow-
ing part of this essay provides for different economic tools that are relevant
in determining environment degradation. Analyzing a policy suggests what
would be the possible outcome of resource depletion and economic loss, how
the country will perceive the new situation and what implication this has for
the full array of harmful effects.

VII. ENVIRONMENTAL KUZNETS CURVE

The environment Kuznets Curve is a hypothesized relationship between var-

ious indicators of environmental degradation and income per capita.30 In the
initial time of economic development, degradation and pollution increase, but
beyond some level of income per capita., the pattern changes and high-income
levels economic growth leads to environmental improvement.31 The conten-
tion for Environmental Kuznets Curve testing is that nation accumulates new
technology, arrangements for its development and in this way the income of
the general population rises and they esteem natural resources when the nation
sees extreme improvement in their economy. People at initial stage value devel-
opment and therefore exploit natural resources and nature. After some accumu-
lation of wealth, they value environment and ecosystem. This is why EKC’s
shape is inverted U curve. The stage of economic development is expressed on
X axis and environmental degradation on the Y axis.32

30
David I. Stern, “The Environmental Kuznets Curve”, International Society for Ecological
Economics, (June 2003).
31
Ibid.
32
<https://www.intelligenteconomist.com/environmental-kuznets-curve/>.
 CNLU LAW JOURNAL–2020-21  49

EKCs are constructed using three models: log-linear, log-quadratic, and

log-cubic to explore the relationship between income (constant GDP and per
capita GDP) and selected environmental indicators. 33

Research has been conducted on India in relation to EKC. Most appreci-

ated one, Managi and Jena (2007), has brought out the EKC relation between
environmental productivity of three pollutants, such as SO2, nitrogen dioxide
(NO2) and suspended particulate matter, and income with the analysis of states
level industrial data during 1991-2003. The after effects of the board investi-
gation reveal that scale effect overwhelms over the technique effect and com-
bined effect of income on environmental productivity is negative.34 A research
study from 1960 to 2010 was conducted comparing the relationship between
CO2 and GDP. It indicated that there exists N shaped curve for C02 emis-
sions.35 Which means that there is an increase in technology for environment
protection, improved efficiency etc. However, again rising of the curve indi-
cates that as GDP is increasing further this decline in the emission level is not
sustained. The economy witnesses a further increase in these emission levels
and the tunneling through the inverted U-shaped EKC is temporary.36

The improvement of condition and environmental framework with income

growth to a great extent relies on the administration arrangements. Approaches
to cut down outflows and pollutants will have tremendous effect on the State
of EKC. Bringing innovation in environment protection, utilizing alternative
modes will create a U-shaped EKC curve. Here are some of the determining
factors of policy-making for environment preservation, which are also determi-
nants of the impact of economic growth on the emissions of pollutants.37
1. Stages of industrial development, state of technology
2. Types of pollutants: SO2, CO2, contaminated water
3. Economic factors: lower-income countries are less inclined to introduce
pollution abatement technology
4. Political behaviour
5. Scale of economic activity

33
Rudra A., Chattopadhyay, A., “Environmental Quality in India: Application of Environmental
Kuznets Curve and Sustainable Human Development Index”. Environ. Qual. Manage., 2018;
1–10. <https://doi.org/10.1002/ tqem.21546>.
34
Dr. Michael Von Hauff and Mr. Avijit Mistri, “Global Journal of Human-Social Science
Research”, E: Economics, Global Journals Inc. (USA), (Vol. 15, Issue 1).
35
<http://www.asianonlinejournals.com/index. php/JOEN/article/view/946/html>.
36
Ibid.
37
Ota T. (2017), “Economic Growth, Income Inequality and Environment: Assessing the
Applicability of the Kuznets Hypotheses to Asia”. Palgrave Communications. <https://3:-
17069doi. 10.1057/palcomms.2017.69>.
50  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

People tend to value those goods which will have positive impact on envi-
ronment once the income threshold is achieved. At a higher income, people
priorities will change as they will value the negative effects of pollution and
try to achieve clean environment. In other words, the path of the equilibrium
income-pollution starts to decrease when “the marginal rate of substitution
between consumption and pollution declines faster than the marginal rate of
transformation between consumption and pollution as income increases.”38

Further, increase in income reflects an increase in size of the country’s

economy. Keeping the technology effect as constant, an increase in economy
leads to environment deterioration. Further as the country develops, the econ-
omy shifts towards the service sector and lighter manufacturing, which should
have lower emissions per each unit of output (Stern, 2004), thus progressively
lowering the local level of environmental degradation.39 Environment Kuznets
Curve might be useful to recognize market driven and arrangement driven
instruments when trying to explain the driving forces behind the relative and
absolute decoupling of contamination patterns from economic growth. 40 A
country with green policy and technology will try to meet economic growth
and abate environment degradation with rise in income as already said above.
As the motivation behind environment policy is apparently neither to moderate
development nor to diminish the output of particular sectors, it is significant
that it allows greatest extension for innovative technological solutions to envi-
ronment problems.

VIII. PROPERTY RIGHTS IN

ENVIRONMENT PROTECTION

The property rights are defined as a set of rules and regulations in the
use of scarce resources and goods. The set of rules includes obligations and
rights, the rules may be codified by law or they may be institutionalized by
other mechanisms such as social norms together with a pattern of sanction. 41
Property rights-based measures create right to use natural resources or to pol-
lute the environment up to a predetermined limit and allow these rights to be
traded.42

38
Dr Michael Von Hauff and Mr. Avijit Mistri, “Global Journal of Human-Social Science
Research”, E: Economics, Global Journals Inc. (USA), (Vol. 15, Issue 1).
39
Ibid.
40
Protecting the Environment and Economic Growth: Trade-off or Growth-Enhancing
Structural Establishment? <https://www.prsindia.org/uploads/media/13financecommissionfull-
report.pdf>.
41
“Property-Rights Approach to the Environmental Problem”, in Economics of the Environment.
Springer, Berlin, Heidelberg, (2000).
42
Commonwealth Government of Australia, Ecologically Sustainable Development: A
Commonwealth Discussion Paper, Canberra, AGPS, (1990).
 CNLU LAW JOURNAL–2020-21  51

The possibility of these measures is that if people reserve an option to use

natural resources, they will think about these resources for a longer term and
deal with them economically. Likewise, the rarer these rights and the more
demand is for them, the more they will cost and this will guarantee that the
rights are used in the most effective way and that they don’t go waste. No one
could have felt that natural resources could be ever claimed. To support this
assertion, let’s take the example of fisheries exploitation in India, assessments
done on fishing indicates that there has been over exploitation of nearly two-
third of the fish stocks in India and commercial stock has been fully exploit-
ed.43 Overfishing will destroy the ecosystem negatively and alter the ecosystem
negatively.44 In the short run, the size of the stock determines the growth of the
stock, which is the flow that may be caught without diminishing stock. In the
long run, there is a more complicated relationship between the growth and the
size of the stock. The growth depends mainly on two factors: (i) the food sup-
ply; and (ii) the density of fish. The food supply is negatively correlated, and
the density positively correlated, with growth.45 The food supply will be plenti-
ful if the stock of fish is small, but the low density will make it more difficult
for the fish to find a mate. However, if there is less food, but the stock is large,
it will be easy to find a mate.

Providing property rights in fishing management will check the overuti-

lization of fishing and prevent from fishery collapse. This is because provid-
ing property rights where properly defined and effectively enforced will give
owner, an incentive to align with underlying natural resource. Providing such
property rights have been largely favored and endorsed by economists who
are of the view that such a regime would be to sustained growth and develop-
ment.46 Further economists have stressed on the fact that giving private prop-
erty rights in natural resources are essential for growth and development of a
nation for a longer period.47 Let’s take another model, urban lakes are among
the best wellspring of reviving ground water, however today people have either
infringed these lakes or utilized these lakes for dumping waste. These lakes
can be restored either by giving complete property rights to the administration
or to private entities who can revive these lakes. Giving property rights for the
lakes will definitely save the lakes somewhat and revive the sound biological
system in the encompassing territories.

43
Ashish Fernandes, Sanjiv Gopal, “Safeguard or Squander?: Deciding the Future of India’s
Fisheries” <http://www.indiaenvironmentportal.org.in/files/file/Safeguard-or-squander-
deciding-the-future-of-india’s-fisheries.pdf>.
44
Ibid.
45
Goelzhauser, Greg., “Journal of Land Use & Environmental Law”, (Vol. 19, No. 2, 2004),
pp. 597–600. Jstor, <www.jstor.org/stable/42842857>, Goran Skogh, “Property Rights and the
Environment. A Law and Economics Approach”.
46
Simon Johnson et al., “Property Rights and Finance”, 92 Am. Econ. Rev. 1335 (2002), see
also Thomas J. Miceli, in The Elgar Companion to the Economics of Property Rights, 121
(Enrico Colombatto, ed., 2005).
47
Ibid.
52  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

From these examples it, it ought to be certain that open access to a common
resource may cause elimination of species and depletion of natural resources.
Because of the earnestness of the issue, this situation has been named the trag-
edy of the commons.48

Further, recent economic studies have indicated that environment related

problems and pollution arise largely from lack or absence of property rights
in the environment.49 It is due to the lack of ownership or property rights in
the natural resources which leads to inefficient resource allocation. It is implied
that developing countries have weak property rights over natural resources as
compared to developed countries that have strong private property rights. That
is why there is over production and over consumption of resources in devel-
oping countries.50 Since property rights in natural resources are not defined,
the polluter is not made to internalize the cost of activities upon others.
Furthermore, there exists no incentives for victims to initiate actions against
the polluter.51

Thus, a lawful step of such a nature would guarantee the externalization of

costs of his activities by the polluter and create an incentive for the injured
person to initiate an action against the polluter. If there should arise an occur-
rence of a risk to his/her exclusive resources/rights because of contamination;
it would make the polluter consider, the unfavorable impact of his activities
upon the people in question.

IX. EFFICIENT- LEVEL OF POLLUTION

OR MARGINAL COST OF POLLUTION

The efficient level of pollution is the measure at which its total benefits
exceed its total costs by the greatest possible amount. This occurs where the
marginal benefit of an additional unit of pollution equals its marginal cost52
or marginal cost of pollution means that an additional environment cost that
results in the production of one additional unit.

48
Supra note 40.
49
H. Demstez, “Toward a Theory of Property Rights”, 57 Am. Econ. Rev. 347, 350 (1967).
See also Richard Stroup, Environmentalism, Free-Market in the Concise Encyclopedia of
Economics.
50
“Graciela Chichilinsky, Kyoto Protocol: Property Rights and Efficiency of Markets” in
Institutions, Sustainability and Natural Resources: Institutions for Sustainable Forest
Management 144 (Shashi Kant and R. Albert Berry, eds., 2005).
51
Garrett Hardin, “The Tragedy of the Commons”, in The Earthscan Reader in Environmental
Economics 60, 62 (Anil Markandya and Juile Richardson, eds., 1992).
52
“The Economics of the Environment” from the book Microeconomics Principles, Ch. 18 (v.
1.0). <https://2012books.lardbucket.org/books/economics-principles-v1.0/s21 economics of the
environment.html>.
 CNLU LAW JOURNAL–2020-21  53

This economic theory says that it is not possible to meet 100% reduction
in pollution. People need goods and services to survive and therefore factories
producing these goods will definitely pollute the environment. But the question
arises to what extent it can pollute the environment. We can understand this
from two unique points. First, let’s assume that we are starting in a world with
no pollution. We value some things more than having an environment entirely
free from pollution, and we produce those things up to the point where we
decide that an additional pollution is no longer worth it. Or, more realistically,
if we start from a relatively polluted world, we can ask ourselves how much
pollution we might want to dispose of before the costs exceed the benefits of a
cleaner environment.53

To achieve at efficient level of pollution, where total benefits exceed its total
costs, government can impose tax on industries or industries can adopt certain
environment friendly technologies. These things will reduce in marginal cost
and total benefits would exceed. Taxes can directly address the failure of mar-
kets to take environmental impacts into account by incorporating these impacts
into prices.54 Take this hypothetical example and equating price with tax we
can find as how this can help in reducing environment to some extent.55

53
Palgrave Macmillan, “Determining the ‘Optimum’ Amount of Pollution” in What
Environmentalists Need to Know About Economics, Scorse J. (2010), New York.
54
Environmental Taxation: A Guide for Policy Makers, OECD, (September 2011), For more
information, please see Taxation, Innovation and the Environment available at <www.oecd.
org/env/taxes/innovation>.
55
Supra note 51.
54  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

By imposing tax, (panel c) the marginal benefit of the 34th unit of emis-
sions, as measured by the demand curve DT, equals its marginal cost, MCT,
at that level. The quantity at which the marginal benefit curve intersects the
marginal cost curve maximizes the net benefit of an activity.56 By imposing tax
liability suppose 13$, an industry owner will have to pay certain amount of
green tax which will add to his cost. Therefore, he will cut his emission to
bear the cost of production or he will adopt an alternate technology which is
environment friendly as compared to 60 units when there was no tax liability.

This economic tool is important in pollution measure from an economic

perspective is to find the pollution measure at which total benefits exceed total
costs by the greatest possible amount, the solution at which marginal benefit
equals marginal cost.

X. COST- BENEFIT ANALYSIS

The commonest way of assessing the economic effect of project is through

cost-benefit analysis (CBA). CBA compares benefits to costs, and indicates
the net benefit (or cost) of a project – the difference between its total benefits
and total costs – in order to draw conclusions about its desirability and viabil-
ity.57 The essential theoretical foundations of CBA are: benefits are defined as
increases in human well-being (utility) and costs are defined as reductions in
human well-being. Economists engross in the cost and benefit connected with
production or consumption of the next additional unit. For a project or policy
to qualify on cost-benefit grounds, its social benefits must exceed its social
costs.58

While cost-benefit analysis remains controversial as a tool to shape envi-

ronmental policy, the technique is “here to stay” and has become a central
instrument for evaluating and justifying regulatory decisions in the developed
world.59

This analysis is used as a tool to frame any policy and supplement these
policies effectively and efficiently. The ideal situation will be if the operational
environmental-economic assessment tool can rank both costs and benefits for

56
“The Economics of the Environment” from the book Microeconomics Principles, Ch. 18 (v.
1.0). <https://2012books.lardbucket.org/books/economics-principles-v1.0/s21economics of the
environment.html>.
57
L. Emerton, L., “Economic Tools Environmental Planning and Management in Eastern
Africa”, IUCN - The World Conservation Union, Eastern Africa Regional Office, (Feb. 1999).
58
Cost-Benefit Analysis and the Environment: Recent Developments – ISBN 92-64-01004-1-
OECD, (2006).
59
Livermore, Michael A., “Can Cost-Benefit Analysis of Environmental Policy Go Global?”
New York University Environmental Law Journal, Vol. 19, Issue 1 (2011).
 CNLU LAW JOURNAL–2020-21  55

multiple remediation projects, which is the case for cost-benefit analyses.60

Cost-benefit analysis can either check the costs of different alternatives to
reach a certain environment goal or check different environmental initiatives
that can be achieved with a certain amount of money.

There are various methodologies to calculate Cost-Benefit Analysis:

ƒƒ Project definition

ƒƒ Identification

ƒƒ Enumeration of costs and benefits

ƒƒ Evaluation of costs and benefits

ƒƒ Discounting and presentation of results 61

The CBA done on Delhi metro indicated that there is a one percent increase
in the economic rate of return on investment in the Metro, pegged at 22.5 per-
cent after accounting for the differences between shadow prices and market
prices of unskilled labor, foreign exchange and investment in the Indian econ-
omy measuring economic benefits and cost of the Metro.62

The cost and benefit analysis is a useful tool to predict the damage caused
by the environment pollution in terms of its impact of cost which help govern-
ment and policy-makers to take precautionary measure to minimize the dam-
age and reduce the cost.

Therefore, these are some of the economic tools which can

be applied in green economy to protect environment and with
their assessment, Government can regulate, frame polices
and enforce stringent laws to protect environment. From
this perspective, the law can empower and boost the progress
into a green economy. They can substitute for greener items
by eliminating obsolete technologies, transforming arrange-
ments and giving new driving force. They can fortify market

60
Connie Nielsen, Klaus Weber and Camilla K. Damgaard Niras, “Environmental Economic
Assessment Tools Remediation Technologies”, DMEEPA, Enviromental Project No. 1369
(2011).
61
Rajesh Rai and T.N. Singh, “Cost Benefit Analysis and its Environmental Impact in Mining,
Jr. of Industrial Pollution Control”, 20 (1) (2004) pp. 17-24.
62
M.N. Murty, Kishore Kumar Dhavala, Meenakshi Ghosh and Rashmi Singh, “Social Cost-
Benefit Analysis of Delhi Metro”, Institute of Economic Growth, Delhi University Enclave,
(October 2006).
56  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

foundation and market-based components, divert open specu-

lation and bolster greener open acquirement.

The UN General Assembly has declared its conviction “that the rule of law
and development are strongly interrelated and mutually reinforcing, that the
advancement of rule of law at the national and international levels is essen-
tial for sustained and inclusive economic growth, sustainable development, the
eradication of poverty and hunger and the full realization of all human rights
and fundamental freedoms, including the right to development, all of which in
turn reinforce the rule of law.”63 Rule of law can allow the sustainable use of
natural resources by enforcing strict laws and regulations, requiring adminis-
trative procedures such as environment impact assessment and defining rules
for natural resource exploitation and governance.

ƒƒ Economic tools such as property rights over natural resource can save our
lakes and fisheries which have been exploited to a great extent. Lakes are
acted as a dumping ground for many people, however strict laws have to be
made to protect these natural lakes.

ƒƒ There is a more prominent need to discover administrative answers for

outline land and groundwater rights. In the coming decades an evenhanded
dispersion of water rights will act like the significant test for diminishing
agrarian disparities, and if accessible water resources more equitably dis-
tributed, it will have a marked impact on the income distribution of farm-
ers.64 Before legislating law on ground water, it is necessary to review the
already existing legislations on ground water and therefore draft policy on
groundwater usage. Keeping in mind efficiency and equity, the choice will
have to be made whether private or public ownership of wells for extraction
of the resource is preferred.65 For this principle of property rights and CBA
have to be analyzed for proper implementation for the usage of water. New
method and technology have to be implemented to efficiently use water for
agricultural and other purposes.

By 2030, the country’s water demand is projected to be twice the availa-

ble supply, implying severe water scarcity for hundreds of millions of people
and an eventual six per cent loss in the country’s GDP.66 Poor implementation
of water harvesting should be regulated and enforced through proper

63
United Nations General Assembly (2012a), para 7; (2012b), para 10. See also World Bank
(2012).
64
Anindita Sarkar, “Socio-Economic Implications of Depleting Groundwater Resource in
Punjab: A Comparative Analysis of Different Irrigation Systems”, EPW (February 12, 2011
Vol. xlvi, No. 7).
65
Rema Devi P., “Groundwater Law in India: Problems and Prospects”, (1990).
66
“Composite Water Management Index: A Tool for Water Management”, NITI Aayog, (June
2018), <http://social.niti.gov.in/uploads/sample/water_index_report.pdf>.
 CNLU LAW JOURNAL–2020-21  57

channels. Subsequently, economic instruments can assume a significant job

in water management and rationalize the policies and law on the use of water
management.

ƒƒ India still need to contribute more on clean innovation and technology by

analyzing cost and benefit analysis for environment protection. Further,
with the risk of global warming posing a potential threat, it is critical that
green marketing turns into the standard and not an exception. This includes
recycling of waste, metals, plastic etc. Government has to apply stringent
laws to implement green marketing and use this concept. Sustainable mar-
keting is a more radical approach to markets and marketing which seeks to
meet the full environmental costs of production and consumption to create
a sustainable economy.67

ƒƒ Government can impose Pigouvian tax to lower pollutant emission. It is

imposed as per-unit tax on a good, thereby generating negative external-
ities equal to the marginal externality at the socially efficient quantity.68
Such example could be imposition of carbon tax on those who emit carbon
emissions. Since a Pigouvian tax allows the right to pollute, higher the tax,
larger is the reduction of pollutant from the environment.69 The environ-
mental authority and government can meet the desired level of pollution by
setting an emission tax at the appropriate level and frame law and regula-
tion to meet the same.

ƒƒ In my opinion, people should be made more aware on environment policies,

provided environment education in stricter sense about kitchen waste and
other organic waste materials, organic kitchen garden, biogas plant, water
harvesting system, waste water treatment using aquatic macrophytic plants
and suitable plantations as these initiatives have the tendency to cut the fuel
consumption, water usages, economize on vegetable purchase, sustainable
usages of water resources. These practices will create a positive impact on
economic development and sustainable development.

Although there is compulsory education on environment at school level, but

same should be provided on a practical and skill bases which can change the
behavioral attitude of people on environment development. Proper implemen-
tation on law and environment policy can be done to create awareness among
people and target youth as youth has the tendency to bring development at a
faster pace.

67
D.N.V. Krishna Reddy, A Study on Impact of Green Marketing on Sustainable Development
(With Reference to Khammam District), Mother Teresa Institute of Science and Technology,
(October 13-14, 2017).
68
Introduction to Economic Analysis, Saylor Academy, (2012) <https://saylordotorg.github.io/
text_introduction-to-economic-analysis/s00-license.html>.
69
Fernando Carriazo, “Economics and Air Pollution”, <http://dx.doi.org/10.5772/65256>.
58  APPLICATION OF ECONOMIC TOOLS IN ENVIRONMENT & LAW

XI. CONCLUSION

There are numerous difficulties and obstructions confronting developing

countries in moving their economies to more environment friendly paths. On
one hand this ought not avoid the endeavor to critically join environment ele-
ments into economic development. Then again, the different obstructions ought
to be distinguished and perceived and required to enable and support the sus-
tainable development efforts. Policies have to be implemented more efficiently
in India to move towards a “green economy” and achieve sustainable develop-
ment goals.

The law and economics development apply monetary hypothesis and strat-
egy in the field of law. It attests that the devices of monetary thinking offer
the best probability for advocated and steady legitimate practice. It is ostensi-
bly one of the prevailing hypotheses of statute. The general theory is that law
is best viewed as a social tool that advances economic efficiency, that financial
investigation and effectiveness as an ideal can guide legal practice. The uniting
of lawful hypothesis and financial thinking has likewise made new research
motivation in the fields of conduct financial aspects: how soundness influences
individuals’ conduct inside legitimate situations; open decision hypothesis
and how aggregate conduct ought to affect enactment; and game hypothesis:
understanding vital activity in a lawful setting. Applying economic tools in the
field of environment law can help the Government to frame laws more effi-
ciently and effectively and strive conventional economy into green economy.
Although Government uses command and control approach to punish environ-
ment offenders or shut down the industrial units but using economic reason-
ing in legal system will not affect the GDP growth and can check scarcity of
resources in the long run.
 NEED FOR MEDIATION IN
HEALTHCARE IN INDIA
—Rishabh Sharma*

I. INTRODUCTION

The rapid development of technology and the ever-increasing expectations of

patients have given rise to immense challenges for the healthcare professionals.
Conflicts and disputes routinely occur in the clinical practice. Dissatisfaction
of the patient with a healthcare physician or the outcome of the treatment
are some common causes of healthcare disputes. Even though it is possible
to adequately resolve these disputes at a nascent phase, some cases can take
the form of a formal complaint and reach the court for litigation. In majority
of the common law jurisdictions, victims of medical malpractice can achieve
redressal under the tort of medical negligence from the formal legal system in
existence. However, the road to a successful claim for negligence is generally
long and harrowing. The process is inefficient and expensive, with the claim-
ants often failing to achieve what they want and deserve.

Mediation is a confidential and voluntary alternative dispute resolution

mechanism wherein a neutral third party (the mediator) facilitates the disput-
ing parties to reach an amicable settlement by means of communication and
negotiation. The process is used at a global level in resolving family and com-
mercial disputes outside the traditional courtroom. In the mid-1980s, the use
of mediation for settlement of healthcare disputes was pioneered in the United
States after a crisis in claims of malpractice.1 Besides warding off litigation
suits, healthcare mediation is practised for assisting patients and their families
take crucial clinical decisions, such as concerning end-of-life treatment.2 This
article aims to highlight the relevance of mediation in the health and medical
sphere, and the sore need for introducing healthcare mediation in India. The
*
B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad.
1
Gerald B. Hickson, James W. Pichert, Charles F. Federspiel and Ellen Wright Clayton, Law
and Contemporary Problems, Vol. 60, No. 1, Medical Malpractice: External Influences and
Controls (Part 1) (Winter, 1997), pp. 7-29.
2
Nancy N. Dubler and Carol B. Liebman, Bioethics Mediation: A Guide to Shaping Shared
Solutions (2011).
60  NEED FOR MEDIATION IN HEALTHCARE IN INDIA

authors also submit a critical appraisal of the use of traditional litigation in

clinical matters, with the overarching aim to demonstrate how mediation is the
more appropriate dispute settlement alternative. Finally, this article discusses
the notable barriers faced in employing mediation in healthcare, and their con-
comitant implications on the patient-physician relationship.

II. HISTORY OF MEDIATION IN INDIA

Mediation has always existed in India. There are documentations of

peaceful resolution of disputes right from the pre-historic Vedic times, evi-
dently more ancient than the present day adversarial system of law. In
Brihadaranyaka Upanishad, the earliest known treatise, various forms of
arbitral bodies, known as Panchayats, like (a) the Puga, (b) the , (c) the Kula,
are referred.3 These Panchayats dealt with various disputes ranging from mat-
rimonial, contractual, to even criminal nature.4 The parties to dispute ideally
accepted the Panchayat’s verdict, thereby exhibiting the binding nature of the
Panchayat’s authority.

During the pre-British rule, numerous forms of dispute resolution mecha-

nisms gained traction within the business class. The Mahajans commanded
everyone’s respect and were considered prudent and unprejudiced businessmen.
They used to act as mediators between the merchants and assisted in resolu-
tion of their disputes.5 However, during the British regime in India, indigenous
local customs and society-based procedures of mediation which had gained
popularity in western India began to be considered discriminatory, and the
British justice system soon became the foremost system for dispensation of jus-
tice in India for about 250 years.6

Following India’s independence, the concept of mediation gained legis-

lative recognition after the passing of the Industrial Disputes Act, 1947. The
appointed conciliators were “charged with the duty of mediating in and pro-
moting the settlement of Industrial disputes.”7 Court-annexed mediation has
now obtained a legal sanction. Various Mediation and Conciliation Centres
have been instituted in India where court cases are referred to by the Judges.

3
Chapter II, Genesis of Lok Adalats, Shodhganga, <http://shodhganga.inflibnet.ac.in/bit-
stream/10603/127688/13/07_chapter%202.pdf> (last accessed on July 1, 2019).
4
O.P. Malhotra, Indu Malhotra and Lexis Nexis, The Law and Practice of Arbitration and
Conciliation (2nd edn., 2006).
5
History, Mediation Centre: Punjab and Haryana High Court, available at <http://mediationcen-
trephhc.gov.in/?trs=history> (last accessed on July 1, 2019).
6
Mediation Training Manual of India, “Mediation and Conciliation Project Committee:
Supreme Court of India, Delhi”, <https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20
OF%20INDIA.pdf> (last accessed on July 1, 2019).
7
Industrial Disputes Act, S. 4, (1947).
 CNLU LAW JOURNAL–2020-21  61

This gives the litigants an opportunity for playing their contributory role in
disputes resolution.

III. THE NEED FOR MEDIATION IN TODAY’S WORLD

Our legal system is plagued with many problems. Insurmountable delays,

exorbitant costs, low judge-population ratios and an excruciating use of the
adversarial system are just some of the manifest predicaments. Along with the
demand to fulfill their constitutional mandates, courts are further pressured
by the burden of private-party litigation. It wouldn’t be far-fetched to say that
the common man sometimes loses faith in the legal system. Like they say, jus-
tice delayed is justice denied. Also, verdicts given by courts often fall short
of addressing the substantive issue in question or in granting a practical and
effective remedy to the parties. Many find that though they have technical
access to courts, substantive access is deterred by the problems of our legal
system. How do parties resolve their conflict then? This is where ADR, or
more specifically mediation can make a huge difference. It is the right amal-
gamation of ethics and efficiency. It is true that sometimes, the adversarial
legal system is the appropriate avenue to resolve disputes. Situations where
there is a huge imbalance of negotiating powers, where parties need some
reliable and assuring interpretation of rights or statutes etc. are some exam-
ples. But, litigation, in our opinion, must always be the last resort. Even where
parties take recourse to litigation, we must employ ways and means to reduce
the adversarial element within it and try not to elevate conflict. In any case,
other methods of conflict resolution are rapidly gaining popularity and must be
employed. It is time we moved over the “one-size fits all” mentality and dealt
with every case on its merits. Deciding how to deal with a case is very similar
to deciding what course of treatment should be given to a patient. We must
examine the root of conflict in every scenario and prescribe the right kind of
treatment. At every given point, it is imperative to induce the parties involved
in a dispute to behave reasonably and adopt a holistic approach to achieving
justice than just herd all kinds of disputes to courts. We shall further examine
why the traditional adversarial system is suboptimal and almost inappropriate
for resolving disputes in the healthcare arena.8

IV. MEDIATION VS. LITIGATION: A COMPARISON

The adversarial system places a heavy reliance on winning and in the pro-
cess, a deeper wedge is driven between the parties seeking to find a resolu-
tion. Neither party wants to understand where the other is coming from. Both
the parties are primarily interested in succeeding in the litigation. This might

8
Rabinovich-Einy, Orna. “Foreword: See You out of Court? The Role of ADR in
Healthcare” Law and Contemporary Problems 74, No. 3 (2011).
62  NEED FOR MEDIATION IN HEALTHCARE IN INDIA

give the party that ends up winning, some satisfaction, but is otherwise very
non-beneficial for all the stakeholders involved. It is uneconomical, time con-
suming and conflict-enhancing. Most often, parties approach the court look-
ing for a solution to their problems, but the focus is often on winning the
case and not on finding a solution or uncovering the truth.9 In long drawn out
legal battles, it is also possible that litigants lose their faith in the system or
give up hope of achieving justice. This is where mediation comes into picture.
Mediation is a voluntary process entirely based on the consent of the parties
involved. Where parties reach a mutually agreed upon decision, it is solidified
into a written agreement, which when signed becomes binding on the parties.
Mediation urges parties to co-operate, communicate and focus on the future.
It does not seek to pin the blame on anyone or result in a situation where one
loses and the other wins. It encourages the parties to not focus on the past and
even if it does, only to the extent where practical solutions can be realized in
order to maintain a sustainable relationship in the future.

Mediation helps provide the parties a holistic view of the dispute in hand.
Having a neutral third party to facilitate a conversation helps the process of
giving them a multi-dimensional perspective. As mediation is voluntary and
based on the consent of the parties, the entire decision-making power rests in
the hands of the parties. They are free to offer suggestions and come up with
creative solutions that would otherwise have been ignored in a traditional legal
setting.

Another advantage of mediation is that it is an extremely flexible process.

It is capable of initiation at any point in time: before, during or after litigation.
The decision arrived upon by the parties is binding on them, as opposed to the
appealable nature of the court rulings in litigation.

V. HEALTHCARE: A VOLATILE SETTING

FRAUGHT WITH DISPUTES

In 2015, according to a survey conducted by NLSIU, Bangalore, medi-

cal negligence cases saw a 400% rise in the previous decade.10 The trust-
based relationship between a doctor and the patients has begun to wane and
increased consumer awareness has led to legal activism, demanding for bet-
ter quality healthcare services. As we can see, the volatility of the healthcare
regime is rooted in aggravated conflicts between healthcare service providers
and the patients. This is further strengthened by ideological and intellectual

9
Panchu, S., “Enron: What Caused the Ethical Collapse”, <http://www.cengage.com/resource_
uploads/downloads/0324589735_170401.doc> (last accessed on July 1, 2019).
10
“Medical Litigation Cases Go up by 400%, Show Stats”, ET HealthWorld, December 6, 2015,
Available at: <https://health.economictimes.indiatimes.com/news/industry/medical-litigation-
cases-go-up-by-400-show-stats/50062328> (last accessed on July 1, 2019).
 CNLU LAW JOURNAL–2020-21  63

divides. As can be gathered from the research on this issue, the ground reality
of healthcare is somewhat frighteningly volatile and fraught with disputes, gen-
erally perceived as setting off costly litigation. Most of these disputes find their
catalyst in miscommunication or lack of communication and a major portion
of these disputes are taken up by medical malpractice and negligence suits. A
lesser but nonetheless, important part of these disputes are non-litigable issues;
issues that need intervention and redressal in order to avoid their recurrence
and escalation into litigable issues. Another facet of issues that occupy the dis-
putes in the medical arena are healthcare reforms; something that is outside the
scope of this paper. Using mediation-based communication skills and ADR as
a whole can go a long way in helping improve doctor-patient (and patient-fam-
ily member) relations and in inducing trust.

VI. MEDIATION: AN EXERCISE IN FILLING

GAPS IN THE HEALTHCARE SETTING

In the last decade, the US healthcare system started using mediation for
facilitation of communication between patients and physicians after the occur-
rence of an adverse clinical incident, to resolve claims of medical malpractice11,
ease out tensions in the care-giving team12, and to help the medical profession-
als and the families of the patients to take important medical decisions. 13

Intelligent application of mediation and mediation skills can be useful in

achieving a more efficient and less vulnerable healthcare system. The health-
care professionals and government officials must ascertain the way in which
conflicts should be handled and the role to be played by lawyers in difficult
patient-physician communications. Mediation has significant potential ben-
efits: greater patient safety; restoration of relationships; monetary savings for
patients, hospitals, and physicians; among many others.14 Use of mediation in
healthcare helps in avoiding exorbitant litigation costs and receiving compen-
sation sooner, in addition to promoting a discussion that is instrumental in
improving patient safety and repairing patient-physician relationships.

Time efficiency is another important factor that makes mediation an effec-

tive means of dispute resolution. According to a study in the United States,
parties preparing for mediation devoted nearly one-tenth of the time they did

11
Chris Stern Hyman, Carol B. Liebman, Clyde B. Schecter and William M. Sage, “Interest
Based Mediation of Medical Malpractice Lawsuits: A Road to Improved Patient Safety?”, 35
J. Health Pol. Pol’Y & L. 797 (2010).
12
Dubler and Liebman, supra note 2.
13
Id., at 12.
14
Carol B. Liebman, “Medical Malpractice Mediation: Benefits Gained, Opportunities Lost”,
Law and Contemporary Problems, Vol. 74, 135-149 (Summer 2011).
64  NEED FOR MEDIATION IN HEALTHCARE IN INDIA

preparing for a trial. 15 Mediation is helpful in reducing transaction costs, giv-

ing plaintiffs an opportunity of being heard, and allowing the defendants to
acquire information which has the potential of improving the quality of care.
If mediation is used at an increased level to work out disputes closer in time
to the occurrence of event, compensation will be granted to the plaintiffs much
earlier in time, and considerable savings will be realized by both the plaintiffs
and the defendants in litigation costs.

There is a notable incongruity between what patients and their families

expect after a medical error takes place and the manner in which physicians
communicate following these events. Patients and family members are usually
looking for an elaborate explanation of what happened, the possible ways in
which the problem can be rectified and prevented in the future, and expect to
receive an apology from the person responsible.16 They wish to be reassured
about the concomitant medical and financial consequences.17 More than win-
ning or losing, or even securing compensation, the plaintiffs aspire to evaluate
their experience in respect of criteria like vindication, accountability, accuracy,
attention, comfort, dignity, empowerment, respect, recognition, efficacy, and
justice. After any unforeseen clinical outcomes, open conversation with the
patients and their family about what actually happened is frequently avoided
by the physicians. The amount and type of information revealed by them
varies widely, and they rarely apologize for their negligence.18 The patient’s
families are seldom after money. Compensation may be a material concern,
however, they are primarily searching for some answers, retribution, admis-
sion of responsibility, and apologies. Mediation is a process which may help
the patients and their families to achieve everything that they seek after a clin-
ical fiasco. In addition, it serves as an efficacious platform for the physicians to
advance a comprehensive clarification of the medical error that occurred and
better explain the medical situation of the patient. Often times, especially after
the death of a patient, family members hold themselves responsible for having
failed to do more, like not spending more time beside the bedside, not having
asked more questions, etc.19 The defense of claims in the traditional adversarial
system tends to only augment their grief and guilt. Complete knowledge of the

15
Chris Stern Hyman and Clyde B. Schecter, “Mediating Medical Malpractice Suits Against
Hospitals: New York City’s Pilot Project”, 25 Health Affairs (2006).
16
Thomas H. Gallagher et al., “Choosing Your Words Carefully: How Physicians Would
Disclose Harmful Medical Errors to Patients”, 166 Archives Internal Med., 1585-1593 (2006).
17
Judith Resnik et al., “Individuals within the Aggregate: Relationships, Representations, and
Fees”, 71 N.Y.U. L. REV. 296-364 (1996).
18
Lauris C. Kaldjian et al., “Disclosing Medical Errors to Patients: Attitudes and Practices
of Physicians and Trainees”, 22 J. Internal Med. 988 (2007); Rae M. Lamb et al., “Hospital
Disclosure Practices: Results of a National Survey”, 22 Health Affairs 73 (2003).
19
Carol B. Liebman and Chris Stern Hyman, “Medical Error Disclosure, Mediation Skills, and
Malpractice Litigation: A Demonstration Project in Pennsylvania”, 64–65 (2005), <https://
www.pewtrusts.org/-/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/medical_liability/
liebmanreportpdf.pdf> (Last accessed on July 1, 2019.
 CNLU LAW JOURNAL–2020-21  65

incident that occurred, and whenever appropriate, acknowledgment of error and

assumption of its responsibility by the medical team can help the family mem-
ber to forgive themselves for failure in prevention of a tragic outcome.

VII. NON-LITIGABLE ISSUES: SMALL INJUSTICES

The distraction with malpractice suits has served to eclipse the significance
of other, more common-place disputes that profoundly affect the healthcare
arena. Malpractice and negligence suits breed something that is termed by
scholars as “defensive communication”. This kind of interaction is designed to
reduce the risk of liability, however, it in fact aggravates conflict and prevents
resolution of genuine disputes.

If we take a closer look at the reality of the healthcare arena, we realize that
most of the disputes are related to everyday problems that are faced in hospi-
tals such as unavailability of doctors, being referred to another institution, long
waiting time or even the foul mood of the physician. These problems are not
major enough to be litigated and are often ignored, but when they add up, they
might actually show lapses in the healthcare policy or service delivery mech-
anisms of the hospitals. These disputes, considered small-injustices, are fre-
quently overlooked and often referred to as “non-litigable disputes.”

Upon examination, we have found that these disputes mainly arise due to
miscommunication or lack of communication thereof and their recurrence can
surely be diminished by putting to use ADR-based communication skills and
by employing effective mediation between the hospital or doctor and the com-
plainant. Upon a deeper analysis of statistics, we find that doctors and physi-
cians resort to defensive communication because of the belief that it protects
them from liability and the risk of being sued for malpractice and negligence.
This mode of defensive communication results in the adoption of a closed
and non-transparent way of communicating with the patient and the patient’s
family.

Since this is contradictory to the hallmarks of mediation, which depends on

transparent and active correspondence, defensive communication fills in as a
boundary to open communication and to the acceptance of mediation in the
clinical setting. Unexpectedly, as past research has uncovered, by keeping up
present, orthodox correspondence modes, doctors and hospital staff run the
risk of breeding further disputes that are both litigable and non-litigable. This,
in turn, results in doctors practising defensive medicine, where their practice is
guided by the fear of incurring future liability and not by what is in the best
interest of the patient.20
20
Orna Rabinovich-Einy, “Escaping the Shadow of Malpractice Law”, Law and Contemporary
Problems, Vol. 74, No. 3, 241-278 (Summer 2011).
66  NEED FOR MEDIATION IN HEALTHCARE IN INDIA

It appears that small-scale, non-litigable conflicts are frequently seen as a

guaranteed, innate facet of providing healthcare treatment and a result of the
lack of or insufficiency of resources at hospitals. Most of the administrative
resources and assets at hospitals are diverted to dealing with what the medi-
cal community considers as a major threat- malpractice and negligence suits.
This is done mainly through risk management by the organizational leadership,
higher up the hierarchical ladder, while the staff who deal with ground reali-
ties are left to handle with alternate, small-scale, everyday disputes, the trans-
action costs of which are intangible and often less substantial. Thus, the need
to adopt ADR related communication and dispute resolution mechanisms in
healthcare settings arises. It could go a long way in addressing the issues dealt
with above.

VIII. BARRIERS TO MEDIATING:

A CRITICAL ANALYSIS

It is pertinent to note at this point, that the ideas floated above are not
easy to adopt. Apart from the various roadblocks mentioned in the paper so
far, the most crucial barriers to adopting mediation and negotiation in health-
care, are the lawyers themselves. Lawyers are often reluctant, if not completely
averse, to advice their clients to opt for peaceful resolution of disputes rather
than going to court. This could be because most lawyers are focused on secur-
ing their clients, their rights. They lay emphasis on rules and obligations and
categorizing people and occurrences, including damages.21 Coming from an
adversarial system that has conditioned them to limit their client’s goals and
expectations to what the legal system can offer them, it is not easy to take a
creative approach to realize more fulfilling goals.22 It is also possible that sug-
gesting alternate ways of resolving disputes goes against their innate condition-
ing, which often results in formulating narrow litigation goals or stressing on
purely economic aspects of the case. Understanding the core issues of the cli-
ent and realizing that their goals are not purely financial, goes a long way in
providing the correct advice and route map to solve their dilemmas.

Another barrier to effective mediation is the non-involvement of physicians

and doctors at the mediation table. Even if the parties decided to opt for medi-
ation, it is not a popular move to include doctors in the mediation sessions.
Even in the US, the defence lawyers advice most of their clients against join-
ing the mediation rounds with the plaintiffs, citing reasons like it not being the
“usual practice” or to save their clients from having to hear personal attacks by

21
Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and
Gendered Parties (2009).
22
Id., at 20.
 CNLU LAW JOURNAL–2020-21  67

the aggrieved.23 When defendant physicians do not participate in the mediation

process, there is a resultant loss of opportunity for them and the patients to
reconcile their differences, loss of opportunity for the patient and/or their fam-
ily to forgive and for the physician to be forgiven, loss of opportunity for the
transfer and receipt of information, and loss of opportunity to bring reforms
in the institutional practices and policies. Their non-participation in mediation
also deprives them of a chance to be heard and represented, something that is
considered by the procedural-justice scholars as being critical to a fair process
of dispute resolution.24 But this is counter-productive to the entire process of
conflict management. Most plaintiffs might be upset at the non-involvement of
the doctors in the mediation and might even take it is a sign of nonchalance or
an attitude of “don’t care”. Non-participation of the doctors in the mediation
sessions could make settlement all the more difficult. It is true that even doc-
tors deal with emotions of remorse, guilt or anger at being sued but coming
to the mediation table is imperative in dealing with these issues. It helps fur-
ther doctor-patient relationships, open a transparent channel of communication
(especially if the dispute arose in the first place because of improper commu-
nication between doctor and patient’s family) and might even help the parties
involved find closure with what happened. Absence of a physician or anyone
else who’s erudite about patient care might result in overlooking information
of clinical importance or giving it too little attention. It is necessary to have
someone on the table who possesses technical clinical expertise, is appreciative
of the institution’s culture, and who holds knowledge of procedure and policy.

If we take a holistic view, it is easy to see that both doctors and patients
have everything to lose if something goes wrong. According to a report, com-
plaints of neglect have risen by around 30-40% over the past five years.25 The
common man thinks there is a huge power imbalance in a doctor-patient rela-
tionship. It is considered nearly impossible to prove medical negligence by a
doctor and book him under the criminal statutes. But today, we live in a world
where consumers are becoming increasingly aware of their rights and what
to expect in terms of service delivery. 26 The rise of consumer courts and the
ease and flexibility with which complaints can be filed, has in fact, helped the
trend. Consumers tend to cry negligence whenever they feel a mistake has

23
Chris Stern Hyman, Carol B. Liebman, Clyde B. Schecter and William M. Sage, “Interest
Based Mediation of Medical Malpractice Lawsuits: A Road to Improved Patient Safety?”, 35
J. Health Pol. Pol’Y & L. 797 (2010).
24
Nourit Zimerman and Tom R. Tyler, “Between Access to Counsel and Access to Justice: A
Psychological Perspective”, 37 Fordham Urb. L.J., 473-486 (2010);
25
Anon, 2017. “The Wait Never Ends: Medical Negligence Complaints Rise but Justice Eludes
Victims”, Hindustan Times, https://www.hindustantimes.com/health/the-wait-never-ends-com-
plaints-of-medical-negligence-increase-but-justice-eludes-victims/story-eFDpT6vKYQSVh-
N0ovgCUBN.html> (last accessed on July 1, 2019).
26
<www.ETHealthworld.com>, 2015. “Medical Litigation Cases Go up by 400%, Show Stats”,
ET Health World, ETHealthworld.com <https://health.economictimes.indiatimes.com/news/
industry/medical-litigation-cases-go-up-by-400-show-stats/50062328>.
68  NEED FOR MEDIATION IN HEALTHCARE IN INDIA

been committed.27 It has come to a stage where physicians are becoming fear-
ful of treating or handling complex medical cases, wary of possible litigation
if something goes wrong. Courts today are jam packed with cases of medical
negligence.28 Doctors, physicians and hospitals are literally in a spot because
of the Consumer Protection Act, 1986. So, there is enough evidence to show
that the power imbalance between doctor-patient is not as huge or ghastly as
it is made out to be. Even doctors have a lot to lose in terms of reputation and
clientele. If cases of negligence are proved against them, they could even lose
their license to practice. In this scenario, it is not difficult to bring doctors to
the mediation table as it is apparent that it is in the best interests of everyone
to have an open discussion about what happened.

Let us take a hypothetical example of a 74 year old patient named Arya,

who was brought in to the hospital with a heart condition. For hours, the doc-
tors at the emergency care tried their best but the patient lost her life. Now the
doctors face a medical negligence suit, instituted by the patient’s family. The
suit, if litigated, could easily drag on for years together and ultimately only
worsen the feeling of anguish for Arya’s family. However, if mediation was
chosen to first try and peacefully settle the dispute, the conflict could end very
quickly and at a much lesser cost. The family would blame the doctors for lack
of communication, negligence and may expect an apology or even some com-
pensation. The doctors could try to explain that they did their best, apologize
for the lack of proper transparency, stress on the fact that Arya lost her life
despite their best efforts and express their utter disappointment and anguish at
seeing a patient lose her life even after repeated treatment. This open commu-
nication could help everyone involved; help the parties find closure and help
the doctors improve the quality of their services in the future based on the
complaints they receive from Arya’s family.

IX. CONCLUSION: THE WAY FORWARD

What is required is a holistic adoption of mediation practices in the medical

setting. But to bring about the prolific use of mediation in healthcare, change
in healthcare policy is necessary, in such a way that hospitals have an in-built
dispute and grievance redressal cell that specializes in mediating the disputes.
It is quite a circular exercise and will definitely be an uphill task, but change
is imperative in order to substantially address any of the issues plaguing our
legal and healthcare systems. As discussed, mediation is a relatively new mech-
anism of dispute resolution in the country. On top of that, the healthcare arena
is an even newer playing field. However, if we are to avoid each and every
dispute from burdening our already over-taxed courts, we must give a serious
thought to resorting to ADR, and more specifically, mediation. As is evident,
27
Supra note 23.
28
Supra note 23.
 CNLU LAW JOURNAL–2020-21  69

it comes with its advantages and disadvantages. Even after making use of
mediation, reform in healthcare will not be guaranteed. Some might even find
mediation to be a poor choice, when they are sure about their rights and their
expectations match with what the traditional legal system has to offer. The
answer lies in making the right choices at the right time and having alternate
systems of dispute resolution in place, if the parties so choose to opt for it.
It is understandable that people have their doubts and reservations about turn-
ing to mediation when there is a legal system in place. But we cannot turn
a blind eye to the inefficiencies of the legal system and the benefits that are
gained from adopting mediation instead. Awareness needs to be spread about
the advent of mediation in the country and its pros. It would help if mediation
were portrayed less as an alien system of dispute resolution and seen instead as
an extension and complementary limb of the existing legal system. Nobody is
claiming that change will be immediate and efficient. It will come with years
of labor and effort from the rightly placed people. Even Rome wasn’t built in
a day. By virtue of this paper, the authors have merely tried to make a case
for why mediation is an appropriate mechanism for grievance redressal in the
healthcare arena and how it will become the torch bearer for real change and
improvement.

“Too often conflict amongst people and organizations has

seen recourse to adversarial combat. With mediation we can
show that conflict can be resolved and justice rendered by
healers and peacemakers.”
 CHILD MARRIAGE: BARRING THE
RIGHTS OF THE CHILD BRIDE
—Shubhangi Komal*

Abstract — Swami Vivekananda, once remarked that “No

society can progress with men alone” because in such a
society there can only be arrested or stunted development. Thus,
for the progress and development of India, there is a need to ensure
gender equality by bringing women on the same pedestal as that to
men. This is only possible when girls are provided with access to
education, health care facilities, etc. which will help in the physical,
mental and emotional development of the child and will also, enhance
their decision making power. However, child marriage is a major
constraint in the development of the girl child as it not only restricts
her education but also endangers her health and life. Child marriage
is a curse on Indian society as it violates the basic human rights of
the child bride. It leads to grave unwarranted consequences like early
spousal cohabitation which results in premature sexual relations,
early pregnancies, malnutrition, infant and maternal mortalities, etc.
In this way, it not only robs millions of girls of their rights and dignity
but also of their childhood. The present paper has comprehensively
dealt with the national legislations relating to child marriages and
recognized an anomaly that the provisions of these legislations
provide for penal consequences on the one hand but confers a status
of validity to child marriages on the other hand. The paper has also
considered the international instruments on child marriage which are
binding on India thereby, recognizing the fact that child marriages
result in violation of right to life and dignity, right to education, right
to health and various other rights of the child bride. After analysing
the consequences of child marriage, the paper recommends that child
marriages should be declared void.
*
3rd year student, BA LLB (Hons.) course National University of Study and Research in Law,
Ranchi.
 CNLU LAW JOURNAL–2020-21  71

I. INTRODUCTION

Rukhmani, a child bride who is now mother of two, expressing her plight
says that, “Had I been married later, I’d have learned to read and write. And
if I’d studied, I wouldn’t have had to work in the scorching heat, harvesting
in the fields.” Munni, another child bride, regrets being tied to a matrimonial
relationship at an early age rather than being sent to school. Due to this, she
remained uneducated and could not fulfil her wish to become an independent
woman. As a result, now, she has no alternative but to endure regular beatings
of her husband.1 Similar is the situation of many girls across the country who
are denied education due to marriage at an early age, which subjects them to
exploitation at the hands of their husbands. Despite such miserable condition
of child bride, the evil practice of child marriage still persists in Indian society
even after seventy years of independence.

The existence even in the threshold of 21st century can be attributed to the
cultural norms prevailing in the society since time immemorial. In Indian soci-
ety, the birth of a girl child is usually unwelcomed because she is considered
as an economic burden for the family.2 Thus, the prime objective of the family
revolves around getting the girl child married in order to shift the economic
burden, which in turn, encourages the marriage of girls at an early age. Thus,
child marriages are ensconced in the very social fabric of India because the
Indian society is too hypocritical to acknowledge the fact that marriages can
be potentially disharmonious and dangerous sites of human interaction.

Child marriage is a gross violation of human rights of children. Though

it ruins the childhood of both the sexes but the repercussions are more seri-
ously detrimental for the child bride who is involved in such a relationship.
According to International Centre for Research on Women, child brides are
twice as likely to suffer from physical violence.3 They are also three times
more likely to have sexual intercourse forced upon them.4 Girls who become
mothers between 15 and 19 years of age are three times more likely to die in
childbirth.5 Due to this, child marriage has been recognised as a serious form
of sexual violence occurring at family level.6 Thus, it not only restricts the
opportunity of education and development of a girl child but also traps her in
vicious cycle of pregnancy, malnutrition and maternal mortality.
1
Nel Hedayat, “What is it Like to be a Child Bride”, BBC News (Oct. 4, 2011), <https://www.
bbc.com/news/magazine-15082550>.
2
Ashok Kumar and Harish, Women Power – Status of Women in India 8 (1991).
3
The International Centre for Research on Women, Too Young to Wed: Education and Action
toward Ending Child Marriage 3 (2005).
4
Ibid.
5
Alka Barua, et al., “Care and Support of Unmarried Adolescent Girls in Rajasthan”, 42
Economic and Political Weekly 54 (2007).
6
Vandana, Sexual Violence against Women: Penal Law and Human Rights Perspectives 46
(2010).
72  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

The present paper examines the history, various national legislations and
international instruments on child marriage along with the consequences of
child marriage and further recommends that the most appropriate method to
curb this social evil is by declaring child marriages as void marriages.

II. HISTORICAL PERSPECTIVE OF CHILD

MARRIAGE IN INDIAN CONTEXT

The origin of the custom of child marriage in ancient India remains dubi-
ous.7 As per the Mitakshara school of law, sixteen years of age was considered
as the age of marriage and fifteen years, in case of Dayabhaga school of law.8
The traces of its origin can be found in medieval times9 where reasons such as
invasions, insecurities and many other socio-cultural reasons forced parents to
marry their children at an early age which, with time, turned into a practice
and later on, was adopted and accepted as a cultural norm.

During the British period, the reformist movement against child marriage
was persuaded by the British customs and thoughts. It was only after the noto-
rious case of Queen Empress v. Hurree Mohun Mythee10 that the need to pro-
hibit child marriage was recognised and it gained further importance. In the
above-mentioned case, an eleven year old child bride died due to bleeding
caused by ruptured vagina on account of forced sexual intercourse committed
on her by her husband who was of 35 years of age. Though the Calcutta High
Court did not charge her husband with rape as the girl was well within the
statutory age to give consent,11 however, the court severely condemned the rape
of the child wife and held that the husband did not have the right to enjoy the
person of his wife without regard to the question of her safety.12

In 1891, Sir Andrew Scoble introduced the Bill (known as the Age
of Consent Bill), which later on took the form of Indian Criminal Law
(Amendment) Act, 1891.13 This Act increased the age of consent from 10 years
to 12 years in order to ensure that female children are protected from

7
It is believed that when Aryans first came to India, they were stranger to the concept of child
marriage. In the Vedic period, it was only when the couple reached a mature age, then their
marriage was effectuated. In the Smriti period, the appropriate age for girls to enter into mat-
rimonial relationship was 8-10 years of age. It is alleged that the custom of child marriage is a
development which took place after the Muslim invasions as it was conceived that the married
women were less prone to being the subject of capture by the invaders. Refer to Report of
Age of Consent Committee, Government of India, 92 (1929).
8
Mayne, Mayne’s Hindu Law and Usage 186 (14th edn.1996).
9
Sudheer Birodkar, “Hindu Social Customs: Dowry, Sati and Child Marriages”, <http://www.
geocities.ws/films4/hindusocialcustomssb.htm>.
10
ILR (1891) 18 Cal 49.
11
Ibid.
12
Id. at 62.
13
Act No. X of 1891, published in Gazette of India, (1891), Pt. V.
 CNLU LAW JOURNAL–2020-21  73

immature prostitution and from pre-mature cohabitation.14 Thus, the cases

prevalent at those times along with published works which focussed on prohibi-
tion of child marriages led to the enactment of Age of Consent Act 1891.15

With the intent to reduce the abnormal mortality of young generation, a Bill
was introduced by Hari Singh Gour in 1924 in order to amend section 375 of
the Indian Penal Code. The Bill rose the age of consent to fourteen years in
both marital and non-marital cases. However, the age of consent was reduced
from 14 to 13 years in case of marital rape by the Select Committee.16 This
material change was incorporated in the Amendment Act of 1925.17 It was for
the first time that marital rape cases were distinguished from non-marital rape
cases. In 1927, the Age of Consent Committee was appointed to review the
prevailing situation and suggest few amendments. A crucial observation made
by them was that the marriage of a girl under a particular age should be pro-
hibited rather than increasing the age of consent for sexual intercourse, keep-
ing in mind the evil consequences of early marriage and early consummation.18
Thus, after further investigation and research in this field, the Child Marriage
Restraint Act, 1929 was enacted.

A. The Child Marriage Restraint Act, 1929

The Act was enacted to bring about a social reform by curbing the social
evil of child marriage and was applicable to all the citizens of India irre-
spective of their religion. The Act purported to prevent the solemnisation of
marriage between two individuals who are below the prescribed age limit,
however, left an ambiguous position by not considering the status of mar-
riage performed in contravention of the Act. Initially the Act prescribed 14
years and 18 years as age of marriage for girls and boys respectively. It was
by the Amendment Act of 1949 that this age limit of 14 years was raised to 15
years in case of girls.19 It was ultimately in 1978 that the age of marriage was
increased to 18 years for girls and 21 years for boys20, with a view to control
the population growth.

The Act penalised an adult male for marrying a minor girl. A male above
twenty one years, who contracted a child marriage, was punishable with simple
imprisonment which may extend to three months and was also liable for fine.21

14
Id., Statement of Objects and Reasons.
15
Ibid.
16
Report of the Age of Consent Committee 11 (1928-29).
17
Act No. XXIX of 1925, published in Gazette of India, (Oct. 3, 1925), Pt. IV.
18
Supra note 10 at 16.
19
Act 41 of 1949.
20
The Act was amended in 1978 by the Child Marriage Restraint (Amendment) Act (Act 2 of
1978).
21
The Child Marriage Restraint Act, S. 4 (1929).
74  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

However, if the male contracting child marriage was above eighteen years
and below twenty one years, he shall be punishable with simple imprisonment
which may extend to fifteen days, or with fine which may extend to one thou-
sand rupees, or with both.22 However, no such provision existed for a female
adult marrying a minor boy, possibly because such incidents were very rare.

However, the Act remained a dead letter as it failed to achieve the objec-
tive for which it was enacted. It was obeyed in its breach more than its obser-
vance and due to the socio-cultural set-up of the Indian society, the practice of
child marriage remained unabated. As a result, there was a growing demand
to eradicate this evil practice by making more effective laws which would pro-
vide for stringent punishments. Pursuant to the efforts of National Commission
for Women,23 the National Human Rights Commission reviewed the 1929 Act
comprehensively and proposed significant amendments.24 Accepting all the
recommendations, the Central Government repealed and re-enacted the Child
Marriage Restraint Act, 1929. Consequently, the Prohibition of Child Marriage
Act, 2006 came into effect from January 10, 2007.

III. LEGISLATIVE PROVISIONS

RELATED TO CHILD MARRIAGE

A. The Prohibition of Child Marriage Act, 2006

The Prohibition of Child Marriage Act, 2006, defines the term “child mar-
riage” as a marriage where either of the contracting parties is a “child”25 and
the word “child” denotes a person who has not completed 18 years of age in
case of females and 21 years of age in case of males.26 The Act was enacted
with a threefold purpose (1) to prevent child marriages (2) protect children
involved and (3) prosecute the offenders. Its ultimate aim was to eradicate the
evil practice of child marriage from the society.

The Act confers a status of validity to child marriage till the time either
of the parties chooses to get it annulled.27 Section 3 of the Act provides that a
child, who has been forced into marriage and would be, in all probability sub-
jected to intercourse, has the option of rescuing herself from this relationship
by applying to the district court through her guardian or next friend. But how

22
Id., S. 3.
23
The NCW in its Annual Report (1995-96) recommended that (1) the punishment provided
under the Act must be made more stringent; (2) marriages performed in contravention of the
Act should be made void; and (3) the offences under the Act must be made cognizable.
24
Annual Report of National Human Rights Commission (2001-2002).
25
The Prohibition of Child Marriage Act, S. 2(b) (2006).
26
Id., S. 2(a).
27
The Prohibition of Child Marriage Act, S. 3 (2006).
 CNLU LAW JOURNAL–2020-21  75

can the law expect a child to find a guardian, usually the one responsible for
getting her married in the first place, or another individual as next friend to
pull her out of this arrangement? Thus, despite the provision, this option of fil-
ing a decree of nullity in the court in order to annul their marriages is far from
reality.28 In fact, even if the judiciary becomes aware of a child marriage, it
rarely advices the girl child to exercise her rights to get her marriage annulled
as can be inferred from the case of Assn. for Social Justice & Research v.
Union of India29 In this case, the court rather than directing the legal ser-
vices authority to provide legal aid or advise the girls to have their marriage
declared as void, directed the girl below 18 years of age to stay with her par-
ents and that her parents shall not allow consummation of the marriage till she
attains 18 years while her husband was released on bail. No proceedings were
initiated for declaring the child marriage as void.

Punishment of imprisonment for up to two years or fines up to one lakh

rupees has been prescribed for male contracting parties to the marriage who
are above 18 years of age.30 Same punishment has been prescribed for those
who performs, conducts, directs or abets child marriages and others for know-
ingly promoting, negligently failing to stop or attending and practising in child
marriages.31 Even the parents are to be punished for promoting or permitting
child marriage.32 However, women are exempt from imprisonment under the
Act.33

It has declared child marriages as cognizable and non-bailable offence.34

The PCMA confers power on courts to issue injunctions in order to prohibit
the solemnization of a child marriage either suo moto or in response to com-
plaints filed by any person or non-governmental organization having reasonable
information about child marriages.35 This law empowers the courts to issue
injunctions to prohibit the solemnization of child marriages and if solemnized
after such injunction, then such a marriage shall be declared to be null and
void.36

Despite such quality provisions, the practice of child marriage still contin-
ues in the society. In order to curb this evil practice, the law, instead of rec-
ognising child marriages as voidable at the option of the minor party, should
observe such marriages as void ab initio. This significant change in law has

28
Pallavi Gupta, “Child Marriage and the Law”, 47 Economic and Political Weekly 49 (2012).
29
2010 SCC OnLine Del 1964.
30
The Prohibition of Child Marriage Act, S. 9 (2006).
31
Id., Ss. 10 and 11.
32
Id., S. 11.
33
Id., S. 13(10).
34
Id., S. 15.
35
The Prohibition of Child Marriage Act, S. 13 (2006).
36
Id., Ss. 13 and 14.
76  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

been culminated by the Karnataka Government, which has declared all future
child marriages in the State as void.

i. The Prohibition of Child Marriage (Karnataka Amendment) Act, 2016

The reform in the laws on child marriages in Karnataka was initiated by a

2010 decision of the Karnataka High Court which aimed to seek directions for
effective implementation of the PCMA.37 The High Court directed the state to
set up a Core Committee with a view to prepare an action plan to prevent child
marriages. As a result, Justice Shivaraj Patil Committee was formed with the
objective to analyze the constitutional, legal and situational status of child mar-
riage and to make recommendations on the prevention of child marriages.

It was on the special recommendations of the Justice Shivaraj Patil

Committee (2011), the Prohibition of Child Marriage (Karnataka Amendment)
Act, 2016 was passed which declared child marriages as void ab initio or ille-
gal in law. Thus, one can infer that there is no requirement to obtain a decree
of nullity from the court,38 thereby, ensuring zero tolerance for child marriages.
Making child marriages void addresses the fact in its current form, the implicit
recognition of child marriages by PCMA as a traditional, cultural and religious
practice and the onus on girls to invalidate the marriages, therefore, leads to
impunity for violations.

The Supreme Court in the prominent case of Independent Thought v. Union

of India39 praised the Karnataka legislature for taking cognizance of such an
important issue and expressed the opinion that child marriages should be rec-
ognised as void throughout the country. Thus, there is a need to amend the Act
so as to declare child marriages as void, instead of voidable and thereby, pre-
vent this social evil.

B. The Indian Penal Code, 1860

The age of consent as provided by section 375 of IPC is 18 years which

clarifies the position that a girl, who is below 18 years of age is incapable of
giving consent for sexual intercourse, thereby, recognizing the vulnerability
of children. However, the exception to section 375 exempted a husband from
committing such a heinous offence with his wife who is not aged below 15.
But the Supreme Court in its landmark judgement of Independent Thought v.
Union of India40 read down this exception and held that sexual intercourse by a
man with his wife, who is below 18 years of age, is rape. This criminalised the

37
Muthamma Devaya v. Union of India, 2010 SCC OnLine Kar 5452.
38
M.M. Malhotra v. Union of India, (2005) 8 SCC 351.
39
(2017) 10 SCC 800.
40
(2017) 10 SCC 800.
 CNLU LAW JOURNAL–2020-21  77

sexual intercourse in a child marriage, thereby, holding the husband liable for
having sexual intercourse with his minor wife.

Child marriages are a form to control the female sexuality and her repro-
ductive rights. Also, as the laws do not provide for any consensual adolescent
sexual activity, they, thereby, encourage parents or adolescents themselves to
marry early to avoid the risk of legal and social sanction for sexual activi-
ty.41 However, making sexual activities within such marriages punishable is a
great step towards its prohibition as criminal sanction for such activities, even
though within the fold of marriage, would certainly discourage parents or ado-
lescents to marry at an early age and thus, would further the objective of eradi-
cation of child marriages.

The 205th Law Commission Report recommended that all child marriages
solemnised between the ages of 16 and 18 should be made voidable at the
instance of the minor party whereas all child marriages solemnised before the
age of 16 should be void ab initio.42 The recommendation was based on the
fact that the age of consent, at that point of time, was 16 years. However, the
Criminal Law (Amendment) Act, 2013 raised the age of consent to 18 years.
Thus, keeping this in mind and also the criminalisation of sexual intercourse
with a minor wife, one can infer that all marriages solemnised below the age
of 18 years should be declared “void ab initio.”

C. The Protection of Children from Sexual Offences Act, 2012

Whilst making decisions in context of children, one needs to keep in mind

the “best interest of child.” The term “best interest of child” has been defined
by the Juvenile Justice Act, 201543. As per the definition, best interest of child
means that the basis for any decision taken regarding the child should be to
ensure fulfilment of his basic rights and needs, identity, social well-being and
physical, emotional and intellectual development.

The Preamble to POCSO provides that the law should be operated “in a
manner that the best interest and well-being of the child are regarded as being
of paramount importance at every stage, to ensure the healthy, physical, emo-
tional, intellectual and social development of the child.” However, as the girls
are made to drop out from their schools in order to engage in a matrimonial
relationship at an early age, the intellectual and social development of the child
bride is restrained. Also, due to their exploitation at the hands of an adult hus-
band, their physical and emotional well being is endangered which in turn,

41
Dr Asha Bajpai, Report of Ending Child Marriage: Litigation Strategy Meeting 17 (2015).
42
Law Commission of India, 205th Report on Proposal to Amend the Prohibition of Child
Marriage Act, 2006 and Other Allied Laws (February 2008).
43
Juvenile Justice (Care and Protection of Children) Act, S. 2(9) (2015).
78  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

deteriorates their health to a large extent. So, in order to ensure the best inter-
est of child, the need of the hour is to abolish the practice of child marriage.

Earlier, exception 2 to section 375 of Indian Penal Code provided that sex-
ual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape. Thus, sexual intercourse with a minor
wife between 15 and 18 years of age was not considered as rape. This was in
direct contravention to section 5(n) of the POCSO Act, 2012, as the act of the
husband constituted aggravated penetrative sexual assault and was punishable
under the Act. Thus, the Act criminalised sexual intercourse in child mar-
riages. However, due to the anomaly created between IPC and POCSO, sec-
tion 42-A was inserted in the Criminal Law (Amendment) Act, 2013 which
provided POCSO with an overriding effect over the provisions of IPC. But the
court still continued to give benefit of exception under IPC as can be witnessed
in Yunusbhai Usmanbhai Shaikh v. State of Gujarat44 or Mujamil Abdulsattar
Mansuri v. State of Gujarat.45 This lacunae has been filled by the Supreme
Court in its recent landmark judgement of Independent Thought v. Union of
India which read down this exception and held that sexual intercourse by a
man with his own wife, who is below the age of 18 years is rape. Thus, both
the POCSO and IPC were harmoniously constructed such that any form of sex-
ual intercourse by a man with his wife, who is below 18 years of age, can be
penalised and thus, aid in the prohibition of child marriage.

D. The Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 categorises
children into two groups: (i) child in conflict with law and (ii) child in need of
care and protection. The phrase “child in need of care and protection” has been
defined in section 2(14) of the Act. Clause (viii) of section 2(14) provides that a
child who has been or is being or is likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal act is a child in need of care and
protection. The Supreme Court in Independent Thought v. Union of India46 rec-
ognised married girls experiencing rape as child in need of care and protection
but enforcement of this decision is necessary in order to ensure that the local
functionaries implement this broadened definition and the facilities made avail-
able to child in need of care and protection can be extended to child brides
as well. Thus, the child brides who are subject to exploitation at the hands of
their husband by virtue of the matrimonial arrangement fall within the ambit
of “child in need of care and protection.”

44
2015 SCC OnLine Guj 6211.
45
2014 SCC OnLine Guj 14365.
46
(2017) 10 SCC 800.
 CNLU LAW JOURNAL–2020-21  79

Also, clause (xii) of section 2(14) provides that a child who is at imminent
risk of marriage before attaining the age of marriage and whose parents, fam-
ily members, guardian and any other persons are likely to be responsible for
solemnisation of such marriage is a child in need of care and protection. This
new category overtly reflects the malaise of child marriage. In the common
parlance, a child is married against his/her wishes and so, this clause strength-
ens the hands of the agencies and persons who are involved in the prevention
of such marriages.

The officials now, have the power to produce children who are at immi-
nent risk of child marriage before the Child Welfare Committee which may
pass orders in the best interest of children and thereby, send the child to a
children’s home, a “fit facility” or a “fit person” and pass directions relating
to counselling, medical attention, legal aid, skills training, education services
and other developmental activities.47 Though the Act provides shelter homes to
child in need of care and protection, the courts are unwilling to send married
girls who do not want to return to their homes to these shelter homes because
these homes lack basic amenities by virtue of which the children are at risk
of exploitation.48 This unwillingness of the courts, thereby, impedes the child
bride to exercise viable alternative options to marriage.

Thus, there is an urgent need to provide these shelter homes with basic
amenities and ensure a healthy environment at the place so as to avoid
exploitation of children, making it a safe place for them to live in. Thus, the
courts would then be willing to send “child in need of care and protection”
including child brides to these shelter homes and as a result, would provide
child brides with the most appropriate and safest alternative. Thus, the officials
should ensure effective implementation of the Act.

E. Personal Laws

Personal Laws are the laws which governs marriages and divorces of a par-
ticular religion in India and most of the personal laws, either directly or indi-
rectly, validate the practice of child marriages and are in contravention to other
laws such as Prohibition of Child Marriage Act, 2006, etc. Thus, the question
which appertains here is that: which will have overriding effect? As it is unde-
niable that preservation of customary laws cannot be given precedence over
a minor girl’s right to life, health and safety, therefore PCMA should be held
applicable on all religions irrespective of their personal laws as was observed
in a recent judgement of Gujarat High Court.49 This view was in unison with

47
Juvenile Justice (Care and Protection of Children) Act, Ss. 3 and 37 (2015).
48
Asian Centre for Human Rights, India’s Hell Holes: Child Sexual Assault in Juvenile Justice
Homes 1 (2013).
49
Yunusbhai Usmanbhai Shaikh v. State of Gujarat, 2015 SCC OnLine Guj 6211.
80  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

a judgement of Karnataka High Court50 wherein it was held that no Indian

citizen could claim immunity from PCMA on the ground of belonging to a
particular religion. But, first, let’s consider various personal laws which are
prevalent in India.

i. The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 is a personal law which is applicable on

majority of the population of India as they comprise of Hindus. Section 5 of
the Act deals with conditions for a Hindu marriage and lays down that for a
valid Hindu marriage, the bridegroom must have completed twenty-one years
of age and the bride must have completed eighteen years of age and a marriage
in contravention of this section is either void or voidable.

However, one can infer that if there is contravention of the prescribed age-
limit, it will neither render the marriage void nor voidable. But the Act contem-
plates penal consequences for solemnization of child marriages by imposing a
rigorous imprisonment which may extend to two years or with fine which may
extend to one lakh rupees, or with both.51 Thus, one can infer that though the
Act prescribes penal consequences for child marriage but in its essence, con-
tains provisions which validate the practice of child marriage.

Section 13(2)(iv) of the Hindu Marriage Act provides that the wife can seek
divorce if her marriage was solemnised before she had attained the age of fif-
teen years and has repudiated the marriage after attaining that age but before
attaining the age of eighteen years, irrespective of the fact that her marriage
was consummated or not. But divorce can take place only when there is exist-
ence of a valid marriage. Thus, the legislators, through the existence of such a
provision, impliedly accepted the validity of child marriages. Also, if the girl
child does not exercise her option of divorce before attaining the age of eight-
een years, her marriage will remain valid.52 The most debatable issue which
appertains is that whether the child bride could ever exercise her option of
seeking divorce before she attains majority? This is almost next to impossible
for her to exercise such an option in a socio-cultural environment which does
not even acknowledge the need of her consent to the marriage.

And even if the child bride withdraws from the matrimonial relationship
in some or the other manner, her husband can claim for restitution of conju-
gal rights under section 9 of the Act and she cannot take the defence that she
was a minor at the time of solemnization of marriage.53 This legal incongru-

50
Seema Begaum v. State of Karnataka, 2013 SCC OnLine Kar 692.
51
Hindu Marriage Act, S. 18 (1955).
52
Luxmi Devi v. Ajit Singh, 1995 SCC OnLine P&H 68 : (1995) 2 HLR 299.
53
Mohinder Kaur v. Major Singh, 1971 SCC OnLine P&H 229 : AIR 1972 P&H 184.
 CNLU LAW JOURNAL–2020-21  81

ity further worsens the status of a child bride and the Act is ambiguous on its
position on child marriages.

ii. The Muslim Law

Under Muslim law, every Muslim of sound mind, who has attained the age
of puberty, is eligible to contract a marriage.54 The marriage of a person below
the age of puberty is to be solemnized by a guardian and such marriage is not
void. However, the minor can annul such marriage by exercising the “option
of puberty” but this option is only available if the girl challenges the marriage
before turning eighteen and if the marriage has yet not been consummated.55

iii. Parsi Marriage and Divorce Act, 1936

Section 3(1)(c) of the Act provides that for a valid Parsi marriage, the bride-
groom and bride should have completed 21 and 18 years of age respectively.
Thus, the marriage of a girl below the age of 18 years is rendered invalid.
However, in the provision on grounds under which a marriage can be declared
void, age has not been included as a requisite.56 This creates ambiguity as to
whether child marriages are invalid from the outset or needs to be invalidated
through a legal process. The Act is silent on a girl child’s right to leave such
marriages and do not provide for penalties for violation of the minimum age
restriction.57

iv. Special Marriage Act, 1954

The Special Marriage Act, 1954 is applicable on all Indian citizens irre-
spective of their religion and was originally enacted to enable inter-religion or
inter-caste marriages. Section 4 of the Act which deals with conditions relating
to solemnization of marriage provides age-limit as one of the conditions under
clause (c). Section 4(c) lays down the minimum age of marriage for men and
women as 21 and 18 years of age respectively and any marriage in contraven-
tion of this condition is void under the Act.58 Thus, the Act renders child mar-
riages void.

54
N. Baillie, Digest of Muhammadan Law 50 (1980).
55
Dissolution of Muslim Marriages Act, S. 2 (1939).
56
Parsi Marriage and Divorce Act, Ss. 30, 31 and 32 (1936).
57
Jaya Sagade, Child Marriage in India: Socio-Legal and Human Rights Dimensions 47 (2nd
edn. 2012).
58
Special Marriage Act, S. 24 (1954).
82  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

IV. INTERNATIONAL INSTRUMENTS

RELATING TO CHILD MARRIAGE

A. The Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW)

The Convention on the Elimination of All Forms of Discrimination Against

Women entered into force in the year 1981 and was ratified by India in 1993.
The Convention explicitly provides for prohibition of child marriages. Article
16(2) of the Convention states that “the betrothal and the marriage of a child
shall have no legal effect, and all necessary action, including legislation, shall
be taken to specify a minimum age for marriage and to make the registration
of marriage in an official registry compulsory.”

The Convention also recognizes the importance of consent for mar-

riage by including article 16(1)(b) which grants the right “to freely choose a
spouse and to enter into marriage only with free and full consent.” General
Recommendation 21 of the CEDAW Committee emphasises that this right is
central to a woman’s life and her dignity and equality as a human being.59
Thus, one can infer that as consent cannot be considered “free and full” in
case of child bride, thus, there is violation of her right to equality as a human
being along with right to life and dignity.

Also, General Recommendation 21 calls for the abolition of provisions

which provide for different ages of marriages for men and women based on the
fact that countries assume incorrectly that woman have a different rate of intel-
lectual development from men, or that their stage of physical and intellectual
development at marriage is immaterial.60 The CEDAW has also focussed on
the fact that allowing marriages on payment or preferment of dowries is clear
violation of the right to freely choose a spouse and has in its general recom-
mendation no. 29 prohibited such practice, in order to recognise a marriage as
valid and the State parties should not recognise such practices as enforceable.61

Thus, the Convention not only expressly prohibits child marriages but also
considers the phenomena through the lens of health, life, survival and develop-
ment of the minor wife. It also seeks to ensure enforcement of its provisions by
setting up complaint mechanisms.

59
UN Committee on the Elimination of Discrimination against Women, CEDAW General
Recommendation No. 21: Equality in Marriage and Family Relations, UN Doc A/49/38 (1994).
60
Ibid.
61
UN Committee on the Elimination of Discrimination against Women, CEDAW General
Recommendation No. 29: Economic Consequences of Marriage Family Relations and their
Dissolutions (2013).
 CNLU LAW JOURNAL–2020-21  83

B. The Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child came into force in 1990 and was
ratified by India in the year 1992. The Convention does not explicitly prohib-
its child marriages but recognizes its adverse impact on other rights, notably,
right to free expression, to protection from abuse and to protection from harm-
ful traditional practices. The CRC Committee, in its concluding observations,
observed that the minimum age of marriage should be 18 years for both male
and female.62

Article 3 of the Convention enshrines the “best interest of the child” prin-
ciple. It provides that best interests of the child shall be a primary considera-
tion in all actions concerning children. This represents a shift from the child
as being perceived as merely the recipient of privileges that are bestowed at
the discretion of the family or the community, and moves towards a more pro-
gressive view of the child as the bearer of legal rights under international law.63
However, as child marriages exposes married girl child to violence, divorce,
abandonment and poverty, thus, it cannot be considered as viable and should
be declared illegal in order to ensure best interest of the child.

Also, the Convention contains provisions to protect the rights of the children
who are at the risk of child marriage. Article 2 of the Convention provides
children with the right to freedom from discrimination and requires the State
parties to take all appropriate measures in order to ensure that the child is pro-
tected against all forms of discrimination. Article 13 grants the right to free-
dom of expression with exceptions only for the respect of rights or reputation
of others, and for protection of national security, public order, public health or
morals. Article 28 of the Convention protects the right to education of the chil-
dren. The CRC seeks to protect children from gendered violence and in the
context of child marriage, protection from sexual abuse64 and from all forms of
sexual exploitation.65

Also, the Convention responds to the evil of child marriage through article
24(3) by recognising the adverse impact of child marriage on the health of
the child. Article 24(3) states that “State parties shall take all effective meas-
ures with a view to abolishing traditional practices prejudicial to the health
of the children.” Recognizing the negative impact of child marriage on the
health, education and social development of children, the CRC Committee has

62
UN Committee on the Rights of the Child, Concluding Observations: India, UN Doc
CRC/C/15/Add.115 (February 2004).
63
Savitri Goonesekere, Children, Law and Justice: A South Asian Perspective (1st edn. 1997).
64
The Convention on the Rights of Child, Art. 19.
65
Id., Art. 34.
84  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

expressed the requirement of concrete and urgent steps by the State parties to
combat child marriages.66

C. Regional international instrument

i. South Asian Association for Regional Cooperation

The SAARC was established in 1985 and consists of a number of member

states including Afghanistan, Bangladesh, Bhutan, India, Maldives, Pakistan
and Sri Lanka. The SAARC, in 2002, established the SAARC Convention on
Regional Arrangements for the Promotion of Child Welfare in South Asia. The
Convention, recognising the need for assistance and protection of children,
referred to child marriage in Article IV which states that “State Parties shall
make civil registration of births, marriages and deaths, in an official registry,
compulsory in order to facilitate the effective enforcement of national laws,
including the minimum age for employment and marriage.”67 Also, in August
2014, they established the first Regional Action Plan to End Child Marriage in
South Asia, whose overall objective is to:

“Delay the age of marriage for girls in at least four countries in South
Asia by 2018 or alternatively to raise the age of marriage to 18 for both boys
and girls delaying early marriage in at least four countries in South Asia by
2018.”68

V. CONSEQUNECES OF CHILD MARRIAGE

A. Education

Education plays a very important role as a catalyst or agent of social

change.69 Knowledge is an imminent part of education and the whole objective
of rendering child marriages void is to ensure that the women is in better posi-
tion as far as knowledge is concerned. Education enables women to acquire
basic skills and abilities and fosters a value system which is conducive to rais-
ing their status in society.

The law provides for free and compulsory education to all children of the
age of six to fourteen years70, however, since in Indian society, education is
66
UN Committee on the Rights of the Child, Concluding Observations: India, UN Doc
CRC/C/15/Add.115 (February 2004).
67
SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South
Asia, Art. IV 3(d) (2002).
68
South Asia Initiative to End Violence against Children, Regional Action Plan to End Child
Marriage in South Asia (2015-2018) 3.
69
N.J. Usha Rao, Women in a Developing Society 27 (1985).
70
Indian Constitution, Art. 21-A.
 CNLU LAW JOURNAL–2020-21  85

not considered necessary for women as they are attributed with the traditional
role of child birth and child rearing71, so, girls are made to dropout from their
schools and engage in a matrimonial relationship at an early age. Thus, the
child bride’s right to education is violated and due to lack of knowledge, they
generally have limited decision making power in relation to their own lives.
Hence, child marriages limit the opportunities of education and economic inde-
pendence of a girl, by virtue of which they are more likely to be dependent on
their husbands for economic stability and maintenance.

However, in a state like Kerala, where the positive nexus between education
and age of marriage is obvious, the literacy rate is an enviable 100% and the
average age of women at the time of marriage is 22 years.72 Thus, in order to
raise the position of women in society and ensure their economic and social
autonomy, they should be provided with better quality of education. This is
only possible when they finish their higher education which will be completed
by the age of 22 as by the age of 18 years, a woman can only complete 12
years of her basic education. Thus, the age of marriage should be raised to 22
years in order to afford better chance to a woman to get educated. Thus, by
raising the age to 22 years, what is happening in Kerala today can be possible
in the whole of India.

B. Health

Before considering the question of mental maturity, first we shall con-

sider the question of physical maturity of a child bride. There is a clear nexus
between the woman’s age and fertility. At an age below 18 years, the wom-
an’s body has not reached complete child bearing capacity. At an age above
18 years, the woman will be more physically strong, thus, incidental effects
like infant mortality, death during child birth will be reduced. As child mar-
riages are often accompanied by early and frequent pregnancy and childbirth,
so, due to physical incapacity of child brides, the average maternal morbidity
and mortality rates are high. The major cause of mortality for girls between 15
and 19 years of age is pregnancy-related deaths.73 Infant mortality among chil-
dren of very young mothers is higher (sometimes as much as two times higher)
than among those of older mothers. Also, child brides are very vulnerable to
sexually transmitted diseases, in addition to early pregnancy as they are una-
ble to negotiate safer sex by use of condoms or refuse sex with their partners
in comparison to their adult female counterparts.74 Also, child brides are less

71
Ashok Kumar and Harish, Women Power – Status of Women in India 8 (1991).
72
Indian University Association for Continuing Education, Age at Marriage 76 (1990).
73
CEDAW & CRC, Joint General Recommendation No. 31 of the Committee on Elimination of
Discrimination against Women/General Comment No. 18 of the Committee on the Rights of
the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18 (2014).
74
The International Centre for Research on Women, “Too Young to Wed: Education and Action
toward Ending Child Marriage” 3 (2005).
86  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

likely to receive medical care during pregnancy as compared to their female

counterparts.75

Thus, if child marriage is made void, then the girl will marry at a higher
age which would mean a reduction in the number of children she will bear.
This in turn, will be beneficial for her health and will also put a check on the
country’s population growth.

Coming to the aspect of mental health of a child bride, depression and

suicide among them is found to be prevalent.76 As per 2011 study on child
marriages, it is significantly associated with all mental disorder except patho-
logical gambling and histrionic and dependent personality disorders.77 Also,
these child brides are at high risk of developing antisocial personality disor-
der by three times.78 Other disorders commonly found in them include major
depressive disorder, nicotine dependence and specific phobias.

What is required is a much needed change towards the attitude to marriage.

One must realise that it is of utmost importance to make child marriages ille-
gal as it is not only degrading the role and status but also the health of woman
in the society. On the other hand, if child marriages are made void, girls will
get married at a higher age (of 18 years or above) and an increase in the age
will lead to a positive rise in the levels of literacy. The girls, thereby, become
physically and mentally prepared for marriages by that time and are also able
to negotiate safer sex, which in turn, would reduce the risk of sexually trans-
mitted diseases. This, in turn, will put a check on the country’s population
growth. This is the foundation stone towards a more progressive society.

C. The Economic Dimension

The economic argument in prohibiting child marriage has a direct nexus

with education of the child. In today’s economic market, qualifications of a
person determine the nature of job he/she will get. However, child marriage
curtails the future opportunities of the children to compete for well-paying job
as they are not equipped with the required knowledge and qualifications. Thus,
by ending child marriage, woman will get a chance to acquire the required
qualifications which will ensure their success in the economic front, thereby,
promoting gender equality. With the advent of the nuclear model of the fam-
ily where both the partners are earners, the economic potential of a woman is

75
The United Nations Children’s Fund, Ending Child Marriage: Progress and Prospects 4
(2014).
76
Yann Le Strat, et al., “Child Marriage in the United States and its Association with Mental
Health in Women”, 28 Pediatrics Journal of American Academy of Pediatrics 524, 528 (2011).
77
Vivian E. Hamilton, “The Age of Marital Capacity: Reconsidering Civil Recognition of
Adolescent Marriage”, 92 Boston Law Review 1817, 1820 (2012).
78
Ibid.
 CNLU LAW JOURNAL–2020-21  87

vast in the modern economic society. So, in order to ensure a better position
in the economic market, this potential of the woman needs to be increased.
Another point which needs to be focussed is that as gender laws ensure gender
equality, thus, economic independence should also form an important aspect of
this equality and marriage rather than curtailing, should promote the economic
independence of a woman.

According to the Economic Impacts of Child Marriage report, ending child

marriage would keep a check on population growth, which in turn, would
increase the rate of economic development as larger population reduces the rate
of economic development. It was found that ending the practice of child mar-
riage could save the global economy trillions of dollar between now and 2030.
Thus, ending the practice of child marriage is not only the morally right thing
to do but also the economically smart thing to do.79

VI. CONCLUSION AND SUGGESTIONS

Child marriage is illegal per se as it violates the human rights of the girl
child by subjecting her to exploitation and endangering her health and life.
Despite this, the evil practice is prevalent in our society not only because of
the socio-cultural norms but also due to loopholes contained in various legis-
lations on child marriages which confer them with a status of validity. Even
the Prohibition of Child Marriage Act, 2006, regards a child marriage as valid
unless either of the parties chooses to get it annulled. Also, the judiciary while
dealing with cases on child marriage rarely provides legal aid or advises the
child bride to get her marriage annulled. If this continues then the practice will
never be abolished from our society. Thus, the need of the hour is to bring a
law that declares all child marriages as void which can be done by amending
the PCMA as has been recently done by the state of Karnataka.

Also, the criminalisation of sexual intercourse in child marriages is evi-

dent of the fact that child marriages should be declared void. The punishments
for performing child marriages should be made more stringent and the laws
relating to maintenance, children begotten in child marriages, etc., should be
amended so as to confirm the laws relating to void marriages. Also, all the
other legislations, including personal laws, should be harmonised so as to
declare child marriages as void. However, implementation of these laws is of
utmost importance. The officials appointed under the Act should be trained to
deal with such situation and rescue children from such relationships and an
official ignorant in the performance of his duty should be penalised.

79
“Child Marriage will Cost Developing Countries Trillions of Dollars by 2030, Says World
Bank/ICRW Report”, The World Bank (June 27, 2017), <https://www.worldbank.org/en/news/
press-release/2017/06/26/child-marriage-will-cost-developing-countries-trillions-of-dollars-by-
2030-says-world-bankicrw-report>.
88  CHILD MARRIAGE: BARRING THE RIGHTS OF THE CHILD BRIDE

As the major factors for persistence of child marriage in Indian society is

poverty and lack of education among children. Thus, in order to prevent it:
(1) High-quality should be made accessible to girls and they should be pro-
vided with incentives – uniforms or scholarships – in order to prevent them
from dropping out of schools; (2) Girls should be empowered with informa-
tion, skills and support networks so that they can grow to become an inde-
pendent woman; (3) The belief of considering girls as economic burden can be
disregarded by enhancing the economic security of poor households. Economic
support and incentives should be provided to girls and their families. Also,
families should be made aware of the fact that educated girls will earn income
in future which will add more value to the family; (4) Parents and community
members should be made aware about the consequences of child marriage; and
(5) consistent laws and policies should be enacted and effectively implemented.

Thus, declaring child marriages void and adopting the above men-
tioned strategies will aid in combating child marriages. This, in turn, will
ensure good health conditions of the child bride and help her to be economi-
cally independent as well. As a result, the potential of women in the society
will increase which will ensure gender equality in the country. As Swami
Vivekananda said, “There is no chance for the welfare of the world unless the
condition of woman is improved. It is not possible for a bird to fly on only one
wing.” Thus, prohibiting child marriages will, in turn, ensure the welfare and
development of the entire nation.
 DIFFERENT STRANDS OF IP IN
SPORTS & E-GAMING INDUSTRY:
EXPLORING THE HORIZONS
—Arnav Bishnoi* & Achint Johri**

Abstract — A football team called Patiala City FC was

established in the year 2015- with a whole lot of academy
grown players. In a short span of time, it came to the forefront in
the Indian Footballing Arena. Its journey started from the third
division of the football league and it won back to back promotion
to the premier football league of India and is currently holding
the pole position in order to qualify for AFC Champions League,
the equivalent to UEFA Champions League of Europe. Due to
this feat, the club has become one of the most popular clubs in
India, with a large fan base. The club has an impressive Jersey
inspired from the rich culture of Punjab, a regal logo/emblem
and a thumping motto “Our blood, Our Sweat, Your Tears”. Its
merchandises (Jerseys, Player memorabilia, etc.) were selling
like hot cake. The Club’s home-grown center forward player,
Abhinav Shukla was fundamental to the team’s success over
these couple of years. His stellar performances made him a top
target for European Clubs, but with success came forth, the
breach of his image rights, personality as well as privacy. Lack
of legal knowledge, as well as the void of law in our country,
made things tumultuous both for the club and also, the player
in order to sustain their economic rights. Popular video games
used his persona in the game without any consent or contract, he
has no idea how to go about it. Though the situation is made-up,
it might ensue that one our finest athlete loses out on revenue

*
4th Year- BA/LLB, Rajiv Gandhi National University of Law, Patiala
**
2nd Year- BA/LLB, Rajiv Gandhi National University of Law, Patiala.
90  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

opportunities from the utilization of his image rights and suffers this
breach of privacy and fails to tap in the commercial conduits which were
worth making fortunes on his right to publicity and also the position of
our country’s sporting franchisee might be put into jeopardy. In these
situations, there is nothing that the athlete or the franchise, can do
except for approaching the court under the outmoded facets of law.
Thereby, there is an increasing need for protecting the IPR in the ever-
growing arena of Sports and in the myriads of E-sports

I. THE BUSINESS CALLED SPORT

In India as well as the United Kingdom, sports cannot be owned by one

entity, simply stating, it’s incapable of being owned by anyone. Back in the
mid-1900 century sports was not being beheld upon as an industry. The cele-
brated Webster dictionary defines it as, “Any physical activity undertook for
enjoyment, pastime; such an activity which more or less requires bodily exer-
tion of force and is being carried on according to such rules/ regulations as
laid down”1

Sports no longer remains a social activity linked with recreation, amuse-

ment or victory & defeat and, the sporting events no longer looks anything like
such events for the money flowing in has gained a tremendous chunk in such
events. Due to the fact that people relate themselves with sports and feel an
inherent association to certain sports team/clubs that sports have had become
commercially exploitable and generate revenue. For example, in India, the
game of cricket has transformed into a colossal commercial diversion attract-
ing mammoth capital, ventures, and profits. Furthermore, in the recent past,
leagues like the IPL, Pro Kabaddi, ISL- Football, organizing Formula one race
in India has only streamlined sports as a business.

As far as the ownership of sports is concerned, in Britain, they have a set-

tled position under the law that “a spectacle cannot be owned in any ordinary
sense of the word”,2 then why so much of money is being invested in sports
today and also, a lot of sporting activities being treated as a valuable eco-
nomic asset? The answer is that the Capability of a sporting event to generate
money is no longer constrained to the ticket sale. But there are various anal-
ogous commercial rights available in sports, like P.R., building a brand out
of a sportsman, licensing of certain rights to the sponsors, which the event

1
Definition of Sport, Merriam-Webster, <https://www.merriam-webster.com/dictionary/sport>
(accessed 3 May 2019).
2
Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor, (1937) 58 CLR 479.
 CNLU LAW JOURNAL–2020-21  91

organizers exploit in order to earn money.3 As the economic facet of sports and
sporting events amplifies there usurped a prerequisite to protect the economic
interests of the players as well as the owners who have invested astronomical
amounts in the venture.

ƒƒ Why IP R ights?

Intellectual Property Rights (IPR) in sports, chiefly the Trademark &

Copyright can be a pragmatic instrument towards the marking of exhausting
digressions, inspiring more innovations & inventiveness, sports clubs/groups,
big-name status, etc.4 IPR can protect a franchise and a player to protect its
commercial value from fraudsters/ forgers copying their IP without permission
and at the same time making sure that inventors and creators get a fair reward
for their work5, give it the monopoly to protect the goodwill and sell the rights
which are “the life-blood of sports events at all levels, right from the elite level
athletes down to the grassroots participants”.6

There have been a lot of occurrences whereby both the club as well as the
player had accrued the benefit from their marketability. Football due to its pop-
ularity has benefitted the most from rights selling. Since 2011, Real Madrid
has been designated as the ambassador of the “Made in Spain” brand, signing
a deal to promote Visit Spain campaign for the Spanish Government.7 Another
such instance was that of David Beckham after he moved to Real Madrid in
2004. Adidas had fashioned an exclusive emblem for him, depicting his bra-

vura of scoring from free kicks , which was enthused from Michael

Jordan’s Nike logo . He had a fall out with club President over absolute
ownership of his image rights and before leaving the club prematurely, he had
interestingly minted approx. €4 Million from playing football for the Madrid
based club but around €19 Million out of commercial endorsements.8

3
Mukul Mudgal, Law & Sports in India: Developments, Issues and Challenges, LexisNexis,
2nd edn., 2016.
4
Shrishti Sharma, Sports and IPR, 2 Sports and Legislature 30 (2018).
5
“Intellectual Property and Sports: Tracing the Connections”, World Intellectual Property
Organization (WIPO), <https://www.wipo.int/ip-outreach/en/ipday/2019/ip_sports.html>
(accessed 10 May 2019).
6
Mark Lichtenhein, “Reach for Gold: IP and Sports”, 2 WIPO Magzine (2019).
7
“Real Madrid to Promote Spanish Tourism”, Kyero, available at <https://news.kyero.
com/2011/03/real-madrid-to-promote-spanish-tourism/3579> (accessed 9 May 2019).
8
“Beckham Drives Madrid to Top of Money League”, The Guardian, <https://www.theguard-
ian.com/football/2006/feb/16/newsstory.sport>; BBC Sport, 2007 (accessed 9 May 2019).
92  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

II. TRADEMARK: BRANDING &

CORRELATIVE RIGHTS IN SPORTS

It is a costly affair if one decides to stage a sporting event. Use of IPR can
help the organizers and franchisee owners to stand apart in the marketplace
and help recover the costs of organizing the mega sporting events. Research by
World Trademark Review has crowned Sports club like Manchester United
as the trademark champions with the Manchester-based club having 413 marks
in its portfolio.9 The club brand was valued at nearly £1.4 billion as it capital-
ized from the International registration of marks through digital media rights
and other sponsorship deals, for example “between 2015 to 2017 it has enjoyed
a 4.6% compound annual growth rate in its sponsorship proceeds”10. When
it comes to the players and athletes, they too have become more IP savvy,
Barcelona FC’s Lionel Messi leads the chart and has the biggest trademark
portfolio with as many as 76 marks registered, breaking down the macro IP
bundle into micro shreds circumscribing his logo, name & signature.11

ƒƒ Brand Protection: The First Step Ahead

A considerable time, energy and money have been disbursed by the event
organizers and the clubs to make a brand name. A strong brand has a direct
correlation with a higher value for the products and services provided by its
sponsors or promoters. The Marketers’ pay astronomical amount to get spon-
sorship/title deal for a prestigious and reputed event or a Sports club, as any
sort of association with the big sporting events, which attracts big crowds,
gets the brand, higher recognition. If the Brand is properly protected by using
IP rights properly, it can be a major source of revenue for the event organiz-
ers which is perfectly elucidated by the fact that Star India paid a whopping
₹16,347.50 Cr. to Board of Control for Cricket in India (BCCI) for the media
rights of Indian Premier League (IPL)12 and Pepsi, had shelved out ₹396.8
Cr.13 to become the exclusive title sponsor.

9
Manchester United Tops Premier League of Trademarks, World Trademark Review (WTR),
<https://www.worldtrademarkreview.com/brand-management/manchester-united-tops-premier-
league-trademarks-messi-overtakes-neymar-player> (accessed 10 May 2019).
10
The International Trademark System and Sports, World Intellectual Property Organization
(WIPO), <https://www.wipo.int/ip-outreach/en/ipday/2019/madrid_trademarks_sports.html>
(accessed 9 May 2019).
11
WTR, supra note 9.
12
“Star India Wins IPL Media Rights for Next Five Years”, The Times of India (2017), <https://
timesofindia.indiatimes.com/sports/cricket/ipl/top-stories/star-india-wins-ipl-media-rights-for-
next-five-years/articleshow/60355842.cms> (accessed 3 May 2019).
13
Pepsi Pay Rs. 396.8 Crore to be IPL Title Sponsors, Firstpost, <https://www.firstpost.com/
sports/ipl/pepsi-bid-rs-396-8-crores-to-be-ipl-title-sponsors-530517.html> (accessed 3 May
2019).
 CNLU LAW JOURNAL–2020-21  93

The Delhi High Court recognized the desirability of brand protection in

World Wrestling Entertainment v. Savio Fernandes.14 In India, one of the few
legislations which provides fortification to sports branding is the Trade Marks
Act, 1999. The act provides for registration and protection of Trademarks used
for a business or goods and also protects against the use of fraudulent marks.
The act follows the Abercombie factors15, whereinafter stating and following a
spectrum of distinctiveness, i.e. giving protection to words which denoted the
source/uses of the word or they are wholly invented & fanciful in nature.

The latest trends of brand protection by an individual athlete also includes

registration of a winning pose/ celebration like Real Madrid & Welsh foot-

baller Gareth Bale’s popular ‘eleven of hearts’ pose or Usain

Bolt’s ‘lightning bolt’ pose, these trademarks are called “Unconventional

or Non-traditional”16 marks. Its growth was bolstered by an EU Regulation17
which eased the prerequisite of graphic representation for registration.

A. Cybersquatting: Clear and Imminent Menace

In India except for the IT Act, 2000 which was hastily drafted. There
exists no concrete protection (except Interlocutory Injunctions under Civil
Procedure Code, 1908) whatsoever from the perils of cybersquatting. The
Trade Mark Act, 1999 provides protection to marks which are registered, §
135 (Passing Off) provides the remedy of injunction & damages. It forms part
of the most common domain name disputes. It is the practice whereby indi-
viduals maliciously register a domain name which contains the name of well-
known celebrities, registered trademark, etc. and then sells the same to rightful
trademark holder or the celebrity. In the past celebrities such as Julia Roberts,18
Madonna,19 along with some others have re-claimed the domain names which
were either identical, confusing or contained their names in suits against
alleged cybersquatters.

14
World Wrestling Entertainment v. Savio Fernandes, 2015 SCC Online Del 6716.
15
Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F 2d 4 (2nd Cir 1976).
16
Davide Dabergami, Unconventional Marks in Sports- When Celebration Becomes a
Trademark, Barzano & Zanardo, <https://www.barzano-zanardo.com/en/approfondimenti/
unconventional-marks-in-sports-when-celebration-becomes-a-trademark/> (accessed 11 May
2019)
17
Regulation (EU) 2015/2424 of European Parliament, EUR- Lex, <https://eurlex.europa.eu/eli/
reg/2015/2424/oj> (accessed 10 May 2019).
18
Roberts v. Boyd, No. D2000-0210 (World Intellectual Prop. Org. May 29, 2000).
19
Ciccone v. Parisi, No. D2000-0847 (World Intellectual Prop. Org. Oct. 12, 2000).
94  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

Football Club Barcelona was put in an unwarranted as well as precar-

ious situation. In Futbol Club Barcelona v. Ali Mohamedali,20 an individ-
ual from U.A.E. had purchased the domain name <fcbarcelona.soccer> and
had contacted the football club so as to purchase the same for $400,000. The
Catalan club approached WIPO’s Arbitration Centre and it pronounced a
verdict in favor of the club stating the registered domain name was sugges-
tively deceptive and confusing enough to put any prudent person in a state of
pandemonium.

B. Sports Merchandising: Passing off fake as real

When Cristiano Ronaldo made a sensational move to Juventus. The Italian

club sold a staggering 5,20,000 Cristiano Jersey in just 24 hours, adding up
almost $62 Million.21 The fans love to associate themselves with the club they
support and in furtherance, they buy the jersey, cap and other such merchan-
dise which bore the trademark logo or other official insignias (registrable as
™) of the club. The figure abovementioned accounts for the sale of offi-
cial jersey and there is a void on data for the sale of replicas, it is projected
that the size of replicas supersedes the one that of the original. Top European
clubs such as Man Utd, Barcelona, etc. earn colossal amount from the sale of
branded merchandise. But it is observed that a lot of entities sell replicas by
misrepresentation as well as deceit thereby riding on the popularity and good-
will of the claimant club. This perilous situation has emphasized the require-
ments for a passing-off action,22 this case (Irvine v. Talksport) also recognized
the player’s right in his image, when Mr. Irvine’s (a Formula One driver) image
was used in an Advt. without his permission.23

In India, the action against this misdemeanor can be claimed under the
Trademark Act and Indian courts have quantified that, “although the action of
passing-off is normally available to the owner of a distinctive mark, but it is an
action not only to preserve the reputation of the plaintiff but also to safeguard
the public.”24 Irrespective of the judicial pronouncements, there subsists a lim-
itation to the aegis of law which the trademark owner should keep in mind. In
Arsenal Football Club Plc v. Mathew Reed,25 Mr. Reed was selling merchan-
dise bearing the trademark ‘Arsenal’ & ‘Gunners’. The court gave a dictum in
favour of Mr. Reed whereby it was stated that, if a person could prove that

20
Futbol Club Barcelona v. Ali Mohamedali, WIPO Arbitration & Mediation Centre, Case No.
D2017- 1257.
21
Niall McCarthy, “Juventus Have Sold $60 Million of Ronaldo Jerseys in 24 Hours”, Forbes,
<https://www.forbes.com/sites/niallmccarthy/2018/07/20/juventus-have-sold-60-million-of-ron-
aldo-jerseys-in-24-hours-infographic/#629ebc67392b> (accessed 10 May, 2019).
22
Irvine v. Talksports Ltd., (2002)) 1 WLR 2355.
23
Ibid.
24
Satyam Infoway Ltd. v. Siffynet Solution (P) Ltd., (2004) 6 SCC 145 : AIR 2004 SC 3540 .
25
Arsenal Football Club Plc. v. Matthew Reed, (2001) 2 CMLR 23.
 CNLU LAW JOURNAL–2020-21  95

there was no confusion in the minds of the consumer as to the source of good,
i.e. “no misrepresentation of it being official merchandise” then the person
wouldn’t necessarily violate the trademark of the club.

III. COPYRIGHT IN SPORTS

Copyright forms an unformidable part of protection for sports in toto (play-

ers, teams, brands). In order to protect one’s right from flouting and to safe-
guard its value, the Copyright regime is heavily relied upon by the owners.
Copyright in Sports vests in diverse segments preserving the right of the cre-
ator, creators image rights, computer games, mottos, books, and team emblem,
etc. The Copyright Act of 1957 might cover these catenae of creations and sup-
plementarily protect them but this remains an uncertainty since the act doesn’t
overtly include them.

ƒƒ The relation between Right of Publicity, Personality & Copyright Law

The relation between Publicity, Personality and Trademark/Copyright has

been a contentious as well as frequently litigated topic in the US Laws.26 It is
worthwhile to note that the right to Publicity varies from that of the Privacy.

The right to privacy opines that this basic concept extends to one’s ‘right
of being left alone’.27 In this transient world players and other celebrities’ pub-
licity is being transgressed with a lot of fans/paparazzi being inquisitive about
every single aspect of their personal lives. In Cohen v. Herbal Concepts Inc.,28
Plaintiffs photo on the cosmetic product was used. Defendant argued that
the mother and daughter were not recognizable in the picture, but the court
thought otherwise and damages were being awarded recognizing her image
rights. Therefore, in cases of such breach, the athlete can either claim com-
pensation for ‘invasion of privacy’ or in the form of the avowal of their ‘right
to privacy’.29 Moreover, excluding for compensation being the raison d’être for
advocating privacy rights, emphasis can also be laid on the protection it pro-
vides to one’s autonomy and self-esteem. In Auto-Shankar case30, the Supreme
Court endorsed the view that celebrities right to privacy rights form part
and parcel of Art. 21 and had termed it as a horizontal right (surprisingly).

26
Joshua Beser, False Endorsement or First Amendment: An Analysis of Celebrity Trademark
Rights and Artistic Expression, 41 San Diego L. Rev. 1787 (2004).
27
Louis Brandeis D. and Warren Samuel D., The Right to Privacy, Havard Law Review, 4 (5)
(1890), <http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy /Privacy_brand_warr2.
html> (accessed 9 May 2019).
28
Cohen v. Herbal Concepts Inc., (1984) 63 NY 2d 379.
29
Tabrez Ahmad, “Celebrity Rights: Protection under IP Laws”, Journal of Intellectual Property
Rights, Vol. 16, 7-16, Jan. 2011.
30
R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
96  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

Horizontal rights apply to both, against the citizens & fellow citizens unlike
most of the Fundamental rights, which applies against the Central/State Govt.

Unlike Privacy rights, the right to Publicity shields an athlete from being
commercially plundered by somebody else of his likeness, image or his tag; the
player or the celebrity as the case, is “the one to decide when and where, and
to be paid for (the exposure).”31 The celebrities, as well as the players in USA,
have had registered their marks in the State of California for it is one of the
only laws existing which recognize both, the common law as well as the statu-
tory rights of publicity. It states:

“Any person who knowingly uses another’s name, voice, sig-

nature, photograph, or likeness, in any manner, on or in
products, merchandise, or goods, or for purposes of advertis-
ing… without such person’s prior consent… shall be liable for
any damages sustained by the person or persons injured as a
result thereof.”32

The matter of K.S. Puttaswamy v. Union of India, overruled the case of

Kharak Singh v. State of U.P.33 explicitly stating that the right to privacy is
a Fundamental right protected by the golden triangle34 of Constitution Sanjay
Kishan Kaul, J. raised up the subject of Personality/ Publicity rights from
a meagre common law right to that of Constitutional right which in turn is
comprised with the right to privacy under the Art. 21. He stated that: “Every
person should have definitive control and right over his life and image as
depicted to the multitudes and to administer the commercial use of his persona
and identity”35

As regards the personality rights of a celebrity/player is concerned, the mat-

ter involving Rajat Sharma & Zee Media36 had explicitly dealt with this con-
tentious issue which is still at a nascent stage. The Delhi H.C. enumerated that
the promotional advertisement put forth by Zee Media in the national news-
papers bore a clear reference to Mr. Sharma’s well-known TV show (Aapki
Adalat). This advertisement (promoting anchor-less news initiative) took a dig
at some of the renowned TV anchors of India. (Refer to Appendix)

31
Lerman v. Flynt Distributing Co. Inc., 745 F 2d 123, 127-30, 134 (2d Cir 1984) (regarding the
scanty public figure’s right of privacy and publicity asserting against pornographic magazine
for erroneously identifying her as nude woman in photograph).
32
California Civil Code, § 3344, (West 1997).
33
Kharak Singh v. State of U.P., (1964) 1 SCR 332, 345, 347
34
The Constitution of India, Arts. 14, 19 & 21.
35
K.S. Puttaswamy V. Union of India, (2015) 8 SCC 735.
36
Rajat Sharma v. Ashok Venkatramani (Zee Media), CS (COMM) 15/2019.
 CNLU LAW JOURNAL–2020-21  97

The court laid high reliance on the principle of identifiability37 and held
that Rajat Sharma was clearly identifiable as a celebrity and that such rights
transgress the out-of-date laws of advertisement.

Personally, after going through the order, it was felt that the court could
have given a bit more analysis into this evolving field. Additionally, a blatant
flaw with the narrative that these rights are part of IPR is the “lack of recogni-
tion of the role of the public in nurturing and forming publicity rights.”38 It will
be apt to state that the fame & recognition, consequential to public exaltation
(even dislike, like the Sergio Ramos or Kardashians) is pre-eminent for exploit-
ing personality rights.

A. Image Rights and Endorsements Rights of a Player/Athlete

Each athlete enjoying a zealous fan base is not just a player participating
in sport to win, but he is in himself a brand, a commodity which is capable
of being traded and creating commercial value. Players like Cristiano Ronaldo,
Roger Federer, Lebron James, etc. earn more commercially because of their
glimmering image than they do it from the sporting conduits. In India, the
Delhi H.C. had recognized this aspect and held that this right vests in an indi-
vidual rather than an organization.39 FIFA (the governing council of football)
corroborates and promotes the principle which gives players right to explore
his/her own image rights by himself and at the same time, the club may also
exploit it in a group of players or the squad as whole…40

It is to be noted that the concept of image rights is akin to that of goodwill,

as stated above, it is no less than an “intangible asset” or “brand” which has
been developed over the period of time by unremitting jaw-dropping perfor-
mances week-in & week-out. In India, like the U.K., there is no specific leg-
islation defending these rights, and they can take legal action only in cases
where any of their legal rights in one of the “Rag baggage” of law41 was
infringed or illegal reproduction of their image rights which they own42 or in

37
Prarthana Patnaik, Rajat Sharma v/s Zee Media- Delhi HC’S Latest Order on Personality
Rights, SpicyIP, <https://spicyip.com/2019/01/rajat-sharma-v-s-zee-media-delhi-hcs-latest-
order-on-personality-rights.html> (accessed 10 May 2019)
38
Harshavardhan Ganesan, “Reveries of a Publicity Right”, SpicyIP, <https://spicyip.
com/2017/07/reveries-of-a-publicity-right.html> (accessed 11 May 2019).
39
ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2 : (2003)
26 PTC 245 (Del).
40
Professional Football Player Contract Minimum Requirements (Circular 1171/2008), FIFA,
<www.fifa.com/mm/document/affederation/administration/97/29/01/circularno.1171-profession-
alfootballplayercontractminimumrequirements.pdf> (accessed 11 Apr., 2019).
41
Art. 21 of the Constitution of India, “breach of Privacy”; Breach of Confidence under Torts;
Trademark Act § 135; Breach of Advertising codes (ASCI), etc.
42
Elvis Presley Enterprises Inc. v. Sid Shaw Elvisly Yours, Chanf 1997/ 0686/ 3 E No 1337.
98  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

cases where breach of commercial confidentiality took place.43 Nonetheless

they are specifically dealt in football players’ contracts, for example, Clause 4
of the English Premier League’s Standard Contract vows for the protection
of a players image rights, it states that image of a player can be used by a club
only when it is being used with 2 or more club players and, the image right
circumscribes the use of nickname, signature, voice, photo or any virtual/ elec-
tronic depiction which is distinctive and related to one’s fame.44

Lately, this issue has also surfaced in the arena of E-Gaming, whereby
Bayern Munich’s GK Oliver Kahn had successfully sued45 EA Sports for
using his image and name in their football game without any express consent
from his side.46 After the emergence of E-sports, it has become a prerogative
for the legislatures to ponder thought upon this issue as well as for us to dis-
cuss IPR’s in the world of E-sports.

IV. INTELLECTUAL PROPERTY IN

THE WORLD OF ESPORTS

In a relatively short span of time, esports has rapidly but surely solidified
their position as a highly competitive and spectator-friendly entertainment
industry. In 2018 alone, the combined viewership numbers of various esports
tournaments and events rose to nearly 400 million, outnumbering the specta-
torship of flagship traditional sporting events such as Wimbledon and the U.S
Golf Masters.47 Apart from the success of ‘traditional’ eSports titles based
on the Multiplayer Online Battle Arena (MOBA) and First-Player Shooter
(FPS) formats, such as League of Legends (LoL), Dawn of the Ancients 2
(DotA 2) and Counter-Strike, there is also a seeming convergence of sorts
between traditional sports and eSports, represented by the overwhelming suc-
cess of the FIFA eNations Cup48 and the e-Premier League, an international
gaming tournament in which players represented and competed as their home

43
Douglas v. Hello! Ltd., (2001) 2 WLR 992.
44
Premier League Contract, The IP Mall – Intellectual Property Collection, Univ. of New
Hampshire, <https://ipmall.law.unh.edu/sites/default/files/hosted_resources/SportsEntLaw_
Instit ute/Agent%20Cont racts%20Bet ween%20Players%20&%20Their%20Agents/6_
PREMIER%20LEAGUE%20PLAYERS%20CONTRACT.pdf> (accessed on 11 May 2019)
45
Kahn v. Electronic Arts GmbH, unreported, 25 April 2003.
46
Ian Blackshaw, “Understanding Sports Image Rights”, WIPO, <https://www.wipo.int/ip-out-
reach/en/ipday/2019/understanding_sports_image_rights.html> (accessed 9 May 2019).
47
Christopher Ingraham, “The Massive Popularity of eSports, in Charts”, The Washington
Post, <https://www.washingtonpost.com/business/2018/08/27/massive-popularity-es-
ports-charts/?noredirect=on&utm_term=.1affcebbb590> (accessed 20 Apr. 2019).
48
Jack Morton, “FIFA eNations Cup: Team South Africa is Ready for Battle” 2019, Daily
Esports, <https://www.dailyesports.gg/fifa-enations-cup-2019-need-to-know/> (accessed 14
May 2019).
 CNLU LAW JOURNAL–2020-21  99

countries on FIFA 19, a popular football video game.49 This has further con-
tributed to the success of the eSports model and its positive reception world-
wide amongst the next generation of sports enthusiasts.

The meteoric rise of eSports, however, has also brought with it a host of
legal and regulatory complications, which if not addressed and dealt with judi-
ciously, can pose to be major hindrances to its continued growth.

Traditional sports have over time established a stable and sustainable eco-
system of operations and revenue distribution, however, the structure of the
eSports ecosystem extensively differs from that of traditional professional
sports and as a result, suffers from multiple discrepancies.50

The fragmented nature of the industry, with each video game title being dis-
tinct from the other and each having a different framework of rules which is
pre-programmed into the game by developers, makes the implementation of a
common set of guidelines for eSports governance especially challenging. The
highly diverse nature of game mechanics in different eSports titles, varying
from sports based games to combat and shooter based games, unlike tradi-
tional sports which operates on a set of fundamental rules that extend to all
events and tournaments involving the sport, also indicates the expansiveness
of the eSports edifice, so much so that it can be considered to be a sub-in-
dustry in itself, operating as a part of the larger sports industry, further rep-
resenting the difficulty in formulating an all-encompassing general regulatory
framework. Organisations such as the International e-Sports Federation
(IeSF) and World Esports Association (WESA) have been established in this
respect, to assist in the regulation of eSports but have largely failed in achiev-
ing their purpose, primarily due to the lack of participation of game publishers,
who are the prime players in the industry and responsible for organising most
of the large-scale eSports tournaments. Publishers, refrain from engaging in
such organizations as they see regulation as an obstacle to their profit-making
motives. Publishers, unlike tournament organizers in traditional sports events
whose operations are restricted to regulating a specific sport, see eSports as a
secondary activity, their primary concern being selling the video games they
produce. As a result, they often overlook the interests of other stakeholders
such as the players and spectators.51

ƒƒ IP Monopolisation - Distribution and Streaming Conflicts between

Publishers and Organisers

49
FIFA 19 - Soccer Video Game, Ea –sports, <https://www.easports.com/fifa> (accessed 13 May
2019).
50
Roman Brtka, “Intellectual Property in the World of eSports”, IPWatchdog <https://www.
ipwatchdog.com/2018/04/02/intellectual-property-esports/id=95245/> (accessed 20 Apr. 2019).
51
Joost, “Esports Governance and its Failures”, Medium, <https://medium.com/@heyimJoost/
esports-governance-and-its-failures-9ac7b3ec37ea> (accessed 21 Apr. 2019).
100  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

Esports, at their core, involve competition between players of video games.

These video games are essentially creative works produced by various game
publishers, hence being capable of protection under Intellectual Property
(Copyright) Law. Intellectual Property and the revenue derived the refrom,
constitute the backbone of the eSports industry. Players, publishers and tourna-
ment organizers earn significant sponsorship and broadcasting revenue through
the intellectual property involved in video games. The issue raised herein is
that third parties are superficially making money from rights that they do not
own and in which they do not have an immediate interest from a legal stand-
point. There are a number of rights and interests of multiple stakeholders,
which need to be balanced when it comes to intellectual property. What is
especially difficult is protecting these rights and simultaneously catalyzing the
growth of the burgeoning phenomenon that is eSports.52

IP monopolization has been a long-standing issue which has plagued the

intellectual property framework of eSports. Decision making, with respect to
the usage of the games by tournament organizers, broadcasters, teams, and
players lie solely with the publishers, who effectively exercise a monopoly over
other stakeholders. Since these stakeholders place heavy reliance on the intel-
lectual property (the game) of the publishers, it puts the publishers in a posi-
tion of unprecedented power, where they can easily exploit any benefits derived
by other entities from the usage of their IP and control such usage as well.53
This has been a cause for much tension between the various stakeholders of
the eSports community. In the current scenario, the reproduction of a computer
or video game in any form, whether permanent or temporary, for whatever
purpose, is subject to authorization from the developer. Such authorization is
generally granted through end-user license agreements between the publishers
and other entities, but by and large, these agreements expressly prohibit the
‘commercial exploitation’ of the games, subject to any further agreement to the
contrary.54 Commercial exploitation here refers to the sale, franchising, licens-
ing or merchandising of the intellectual property for economic benefit.55 A cen-
tralized IP structure provides publishers with exorbitant power with regards to
the commercial dissemination of their games, raising many ethical concerns
for players as well as sponsors.56 Although publishers have to some extent,

52
Richard Wee, “Three key legal Issues Currently Facing the Esports Industry: A Perspective
from Asia”, LawInSport, <https://www.lawinsport.com/topics/articles/regulation-a-governance/
item/three-key-legal-issues-currently-facing-the-esports-industry-a-perspective-from-asia?cate-
gory_id=115> (accessed 21 Apr. 2019),
53
Max Miroff, “Tiebreaker: An Antitrust Analysis of Esports”, 52 Colum. J.L. & Soc. Probs.
177 (2018)
54
Brtka, Supra note 49.
55
James, “Commercial Exploitation of Intellectual Property Rights”, Clendons Barristers and
Solicitors, <http://www.clendons.co.nz/resources/background-papers/intellectual-property/com-
mercial-exploitation-intellectual-property-rights/> (Apr. 22, 2019).
56
Richard P. Flaggert and Calvin Mohammadi, “Copyright in eSports: A Top-Heavy Power
Structure, but is it Legally Sound?”, Dla Piper, <https://www.dlapiper.com/en/northamerica/
 CNLU LAW JOURNAL–2020-21  101

accommodated their license agreements to allow for streaming of gameplay by

players and streamers, it only extends to non-commercial and free streaming,
which disentitles individual streamers from prospective revenues.57

IP retention by publishers has been a factor behind a number of disputes

in the eSports community, relating to the usage rights of third-party entities,
the most notable of which is a copyright dispute, the SpectateFaker case,
which involved the unlicensed streaming of gameplay by third-party streamers.
SpectateFaker is a channel on Twitch, a popular video game streaming plat-
form, which streamed gameplay footage of Faker, a League of Legends player.
This exact footage, however, was already being utilized by Faker himself on
another streaming platform, Azubu. Azubu consequently filed a complaint
against Twitch for streaming content which does not belong to them. As the
actual rights to the footage of the game lay with Riot, the developer of League
of Legends, neither of the conflicting parties could claim ownership and Twitch
was thereby held non-liable for streaming the disputed footage.58 This dispute
highlights the seeming grey area regarding the right to the usage of in-game
footage, gameplay, and other content by derivative entities such as Twitch and
Azubu.

A. The Intersection of Antitrust and IP Law

One of the major setbacks caused by IP monopolization is entity overlap.

Since the intellectual property rights lie solely with the publishers by virtue of
the law59, they are entitled to utilize the same in whatever manner they please
and also the benefits derived from such use. This often leads to the publishers
assuming the role of organizers, broadcasters as well as sponsors. The most
notable example of entity overlap is seen with Riot Games. Riot is the devel-
oper of the popular eSports title ‘League of Legends’ (LoL) and also organ-
izes the ‘LoL Championship Series’. Additionally, Riot also controls the
broadcasting of the Championship Series.60 In this way, Riot deprives many
tournament organizers and broadcasters of revenue prospects. Apart from los-
ing out on potential revenues, third-party entities may also be able to carry out
the dissemination process better effectively, being experts in these processes
and having a wider spectator following. It is understandable why publishers
such as Riot seek to retain their IP rights as being the developers, they see

insights/publications/2018/09/ipt-news-q3-2018/copyright-in-esports/> (accessed Apr. 22, 2019).

57
Ibid.
58
John DiGiacomo, “Copyright Infringement and eSports”, Revision Legal, <https://revisionle-
gal.com/revision-legal/copyright-infringement-esports/> (accessed Apr. 23, 2019).
59
In India, video games are considered to come under the ambit of “cinematographic work”
according to § 2 of The Copyright Act, 1957 as a “process analogous to cinematography”.
60
Taylor Cocke, “How the League of Legends World Championship Shaped an Entire Esport”,
The Esports Observer, <https://esportsobserver.com/esports-essentials-league-worlds/> (Apr.
23, 2019).
102  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

themselves better equipped and qualified to regulate the game in tournaments

and other events and also for promoting the game. However, absolute control
over these rights can sometimes stifle the operations of third-party entities,
as was the case with the Riot and OGN (a South Korean video game channel
dedicated to eSports) debacle in 2017. OGN, which previously broadcasted the
LoL Championship Series in South Korea and to whom Riot supplied broad-
casting rights, were relieved from this prior agreement. Following this, Riot
entered the South Korean market as the sole broadcaster of the Championship,
which wiped out OGN’s share in the market.61

The biggest losers from the current monopolistic IP ecosystem in eSports

are tournament organizers. Tournament organizers work in collaborative
arrangements with sponsors and broadcasters. Sponsors provide the bulk of
financial input for running the tournament, in return for adequate promotion of
the sponsor by the organizer, which varies from sponsor to sponsor. For exam-
ple, if the sponsor is a computer hardware company, such as Intel or MSI,
they require organizers to specifically incorporate their hardware in conduct-
ing the event. Food and beverage companies like Coca-Cola and Red Bull,
require organizers to officially supply their beverages for consumption by spec-
tators and participants. However, if the sponsor is a streaming company such
as Twitch or YouTube, they might require organizers to enter into exclusive
broadcasting agreements for streaming the tournament.62 The problem arises
in the case of such category of sponsors, with reference to the organisers fur-
ther supplying intellectual property not being their own. Organisers enter into
contracts with developers for the usage of the game for competitive purposes
in events. These contracts are generally not expansive in terms of the scope
of the passed-on IP rights extending to their distribution to third-party enti-
ties such as sponsors. This is largely done by publishers to prevent entailing
the potential loss of revenue through Ambush Marketing by unlicensed spon-
sors. However, what this also does is greatly hamper businesses with derivative
operations dependent on the utilisation of such IP rights for their sustenance.

The thrust of competition law, as well as intellectual property law, is foster-

ing fair competitive markets that ensure consumer welfare (Competition Law)
while protecting the proprietary work of the competitors (Intellectual Property
Law). The existing IP monopoly threatens the essence of what competition
law seeks to protect, by limiting the market competitors to the publishers, a
resultant of the persisting entity overlap ecosystem in the eSports market.
Publishers are increasingly endorsing an exclusionary approach by retaining
organising and broadcasting operations.63 What publishers fail to realize is that
by not involving independent tournament organisers in the distribution

61
Miroff, supra note 53, at 189.
62
Wee, supra note 52.
63
Miroff, supra note 53, at 186.
 CNLU LAW JOURNAL–2020-21  103

mechanism, they sacrifice mutual spectator growth along with other publish-
ers.64 Independent organisers such as ESL, which organises national as well
as international eSports tournaments involving a diverse catalogue of eSports
titles for players to compete on including Counter-Strike, DOTA 2, StarCraft
II and Mortal Kombat. These games have all been developed by separate
publishers (Valve, Blizzard and Electronic Arts) but are contested under the
aegis of ESL, allowing for existing spectators of one game to gravitate towards
viewing other titles simultaneously being contested in the same event. The suc-
cess of ESL clearly represents the viability and long-term benefits of decentral-
ised IP distribution.

ƒƒ Gamertags and Avatars – Protecting the image rights and performance

rights of eSports players

Contrary to traditional sports, where the player has control over his image
rights, which includes the right to the use of their face or name or likeness,
subject to any contract between the player and a sponsor, players in eSports
generally control an avatar or Gamertag (nickname) through which they com-
pete. This avatar or Gamertag is in-game and being a part of the game, any
commercial aspects of the character lie with the publishers. Therefore, with
respect to building player reputation and popularity, the question of image
rights arises with regards to who has the control and subsequent right to mon-
etary gains from the commercial usage of the player’s in-game image.

The complexity involved herein is classifying what part of the game and its
related content can be considered to be as the IP of the publisher and what can
be considered as affiliated to the eSport athlete’s image. While the actual foot-
age of the game belongs to the developer, as far as the streaming of footage
involving a particular player on streaming platforms is concerned, the player’s
image rights are affected as the player has a vested interest in the commercial
utilisation of his gamertag or avatar.65

The legal ambiguity surrounding the ownership of the image rights of vir-
tual identities of eSports players has wide-ranging implications on the commer-
cial exploitation of image rights through licensing and merchandising player
likeness’. A perfect representative of publishers exploiting the image rights of
eSports players is the contract entered into by Riot Games with contestants
of its League of Legends Championship Series. According to § 5 of this
contract, Riot is granted unlimited and unfettered usage rights to the player’s
in-game avatar. This section completely disentitles players from any potential

64
Taylor, supra note 60.
65
Alex Chun, “Esports Players – Do You Know Your IP Rights?”, Spark LLP, <https://spark.
law/video-game-law/esports-know-your-ip-rights/> (accessed 24 Apr. 2019).
104  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

commercial gains made from the usage of their in-game likeness.66 Players in
the Championship Series, as a result, become completely dependent on tourna-
ment winnings as sponsorship revenue is literally ‘snatched’ away from them
by the publishers. Taking into account the low probability of coming out on
top from a pool of thousands of players, many players make little or no return
on their hard work to qualify for such major tournaments. This is especially
alarming as unlike traditional sports where players are largely in control of
their image rights and earn regular revenue through the licensing of the same,
and salary income (in the case of sports like football and basketball, where
players are signed to clubs in the capacity of an employee), eSports players
have no source of regular income and whatever little income they receive from
their teams is sparsely inadequate.67 These teams, unlike professional clubs in
traditional sports, lack an organised structure with directors, management staff
and are usually a group of players who play together. This means that teams
have to solely rely upon the limited IP they have (the team name and logo)
for funding themselves through sponsorships and endorsements. In comparison
to traditional sports, where teams have a global following which allows for a
dearth of sponsorship opportunities, eSports teams are largely unknown in this
regard and do not present lucrative sponsorship avenues to the sponsors. The
sponsorships they do receive are largely from computer hardware companies,
who, unlike their cash-rich as their counterparts in traditional sports, can ill-af-
ford paying handsome amounts to these eSports teams.68

The professional teams which eSports players are contracted to often under-
take the control and usage of the IP rights of their members through the play-
er’s contracts entered into by the members. In addition to losing out on the
control of their image rights to their teams, any contracts with brands or spon-
sors on an individual level further dilute the ownership of their image rights.
Considering the young age of the majority of eSports players, a lack of aware-
ness on their part about their image rights further aggravates the possibility
of their IP rights being exploited. Teams and sponsors, try to capitalise on the
intellectual property of these uninformed young eSports players via the inclu-
sion of exploitative clauses in player contracts. Players can become victim to
breaching sponsorship agreements due to such exploitative clauses and also
because of the lack of effective communication from the team on conflicting
sponsorships. Teams should clearly specify team sponsors to their members
to ensure clarity to the players while choosing individual sponsors to prevent
the possibility of agreements being breached.69 To this effect, strengthening the

66
Adam Levy, “PWND or Owned? The Right of Publicity and Identity Ownership in League of
Legends”, 6 Pace. Intell. Prop. Sports & Ent. L.F. 163 (2016).
67
Ibid.
68
Daniel Alfreds, “IP and Rights Package: Legal Issues to Consider in Esports Sponsorships”,
The Esports Observer, <https://esportsobserver.com/legal-issues-to-consider-in-endorsements-
and-sponsorships-part-1/> (accessed 24 Apr. 2019).
69
Ibid.
 CNLU LAW JOURNAL–2020-21  105

licensing system to better protect the publicity rights of eSports professionals

is key. Impeding the licensing rights of developers and sponsors is essential in
preventing the abuse of these rights. This provides players greater discretion in
commercialising their identity in a manner they best see fit, while also ensur-
ing proportional distribution of benefits accrued from the commercial utilisa-
tion of player IP.70

B. What do the players exactly own?

In-game character/avatar authorship by eSports players is characterised as

derivative ownership as the construction of such avatars relies on the exist-
ence of a game, without which they rendered useless, supporting the retention
of commercial exploitation rights with the publisher. The concomitant nature
of avatar authorship coupled with the derivative interpretation of their avatars
somewhat weakens the stance of eSports players with regards to claiming cop-
yright protection.71 However, a point in favour of eSports players here is that
the reliance on input (the game and its programmed code) does not grant an
absolute right of exploitation to the publishers, primarily because of the pos-
sibility of an immense number of outcomes when avatar construction extends
to the in-game performance of the avatar through the control of the player.
Individual players have unique ways of controlling their avatar by way of using
different combinations of movements and interactions. The outcomes of these
combinations are neither scripted, nor comprehensively pre-anticipated by the
publishers.72 This demonstrates that the larger proprietary concern from the
point of view of eSports athletes is of player performance, over the question of
avatar proprietorship.

Player performance and its protection under intellectual property law pres-
ent yet another legal conundrum, specifically with regards to the inherent dif-
ference between the artistic expression of skill in eSports versus traditional
sports.73 In traditional sports, a degree of skill and technique underlying the
actions of athletes is ever-present and achieved through rigorous practice. The
skill an individual athlete possesses and the execution thereof is distinct from
his fellow counterparts and entirely unique, thus making it easier to establish
copyright originality. In eSports, though there is a similar level of application
of skill and technique and practice involved, the execution is through the vir-
tual persona of the player, blurring the lines of distinction between the per-
formances of one player from the other, subsequently complicating claims of
proprietorship over a specific style of performance. Although the playing styles
70
“Esports Contracts: 5 Things Every Athlete Should Consider”, Gordon Law, <https://www.
gordonlawltd.com/esports-contracts-5-player-considerations/> (accessed 25 Apr. 2019).
71
Brtka, supra note 50.
72
Dan L. Burk, “Owning E-Sports: Proprietary Rights in Professional Computer Gaming”, 161
U. Pa. L. R ev. 1535 (2013)
73
Id. at 1569.
106  DIFFERENT STRANDS OF IP IN SPORTS & E-GAMING INDUSTRY

of the topmost eSports professionals are clearly identifiable and distinguishable

to spectators and fans alike, the implementation of these styles by other players
cannot be safeguarded against as the execution takes place on digital platforms,
which as of now remains unchartered territory in terms of the jurisdiction of
copyright law74.

V. CONCLUSION

The quandary of publicity and personality protection in the current IP

regime of the eSports and Sports ecosystem, makes it increasingly pertinent
to stress upon a community-oriented distribution of IP rights. The developers
cannot claim to be the sole beneficiaries from the IP of their games. Players
and teams have, if not an equivalent, but a considerable stake in these games
and corresponding elements. With the proposed inclusion of eSports in the
2024 Paris Olympics75, eSports players are set to stand on an equal pedestal to
traditional sport participants, representing their countries at the grandest sport-
ing spectacle. This puts them in a position, where they can and for their own
benefit, should leverage their interests relating to their ‘e-Personas’ and game
performances.76

Sports organisations, at the national and international level should strive

to ensure cooperation and competitive balance between players, organiz-
ers and developers in the Sports and eSports industry, supporting the parallel
growth of Sports as business by adopting a decentralised distribution model.
This ensures every stakeholder in this ecosystem is assured a piece of the pie
in terms of revenues and a systematic allocation of costs involved in organ-
ising, broadcasting, sponsorships, merchandising, etc. between publishers and
other third-party entities. Apart from a stable revenue and cost-sharing model,
decentralisation also offers more autonomy to participating players and teams
with regards to sponsorships and endorsements related to their own intellectual
property.

74
S. 38 of the Indian Copyright Act, 1957 provides protection to the performance right of
authors. The operative word here, however is “author” and the scope thereof. Legally speak-
ing, authorship refers to the producers of the creative work, which in the case of eSports
are the publishers. The extension of authorship to the originality of player performance still
remains legally unanswered.
75
Liz Lanier, “Esports Could be in the Olympics by 2024”, Variety, <https://variety.com/2018/
gaming/news/esports-olympics-2024-1202880818/> (accessed 26 Apr. 2019).
76
Marijam Didžgalvytė, “Labour Rights in Esports”, Notes From Below, <https://notesfrombe-
low.org/article/labour-rights-in-esports> (accessed 26 Apr. 2019).
 CNLU LAW JOURNAL–2020-21  107

APPENDIX
 EMERGING VALUE OF THE INSOLVENCY
AND BANKRUPTCY CODE, 2016
—Dr. Ashok Sharma

A bstract — In recent era of Indian economy there is an intense

level of competition in the corporate world. Every business, be
it huge body corporates or the small-scale sole-proprietorship, all
of them is working with might and main to dominate domestically as
well as globally. But this rapid growth in competition has brought
in many illegal and unethical crimes and ways for many businesses
to be in a win-win situation, without putting any effort. Resolving
insolvency of businesses, default in repayment of creditors, increase
in Non-Performing Asset (NPA), corporate borrowers, loans and
advances and creditors control over debtor’s assets and managing all
such illegalities, became a daunting task for the judicial system1. The
earlier Indian bankruptcy regime was highly fragmented, borne out
of multiple judicial forums resulted in a lack of clarity and certainty
in jurisdiction. Decisions were often appealed, stayed or overturned
by judicial forums having a concurrent or overlapping jurisdiction.
The pro-revival approach of the judicial systems led to delays in the
closure of unviable businesses since the standstill mechanism had
been misused by corporate debtors. Secured and unsecured creditors,
employees, regulatory authorities had different and often competing
rights with no common regulatory process to determine the priority
of claims. Lack of adequate and credible data regarding the assets,
indebtedness and security situation of companies further accentuates
the problems.

A complete piece of legislation for these matter is brought into light,

widely known as the Insolvency and Bankruptcy Code, 2016 (called
the “Code” and not an “Act”) to consolidate and amend all insolvency
statutes and laws relating to reorganisation and insolvency resolution
of corporate.
*
Assistant Professor of Management Chanakya National Law University, Patna.
 CNLU LAW JOURNAL–2020-21  109

I. INTRODUCTION

The Insolvency and Bankruptcy Code, 2016 (IBC) is the bankruptcy law of
India which seeks to consolidate the existing framework
1. The Report of the Bankruptcy Law Reforms Committee Volume I:
Rationale and Design, November 2015.

by creating a single law for insolvency and bankruptcy. The Insolvency and
Bankruptcy Code, 2015 was introduced in Lok Sabha in December 2015. It has
total 255 sections divided into 5 parts, namely:

ƒƒ Preliminary (1-4)

ƒƒ Corporate persons (4-77)

ƒƒ Individuals and Partnerships (78-187)

ƒƒ Insolvency entities (188-223)

ƒƒ Miscellaneous (224-255)

The advantages of the code are as follows:

ƒƒ Eliminates plethora of laws

ƒƒ Attitudinal shift of Government

ƒƒ Faster resolution or liquidation process

ƒƒ Protection to banks

The 2016 Code applies to companies and individuals. It provides for a

time-bound process to resolve insolvency. When a default in repayment
occurs, creditors gain control over debtor’s assets and must take decisions to
resolve insolvency within a 180-day period. To ensure an uninterrupted res-
olution process, the Code also provides immunity to debtors from resolution
claims of creditors during this period. The Code also consolidates provisions
of the current legislative framework to form a common forum for debtors and
creditors of all classes to resolve insolvency.

The major legislations currently governing Corporate Insolvency are:

ƒƒ Companies Act, 1956, relating to winding up of companies.

110  EMERGING VALUE OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

ƒƒ The Sick Industrial Companies (Special Provisions) Act, 1985.

The law of insolvency in India owes its origin to English law. Before the
British came to India there was no law of insolvency in the country. The
earliest insolvency legislation can be traced to Sections 23 and 24 of the
Government of India Act, 1800 (39 and 40 Geo III c 79), which conferred
insolvency jurisdiction on the Supreme Court.

Earlier, the Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act, 2002 (also known as the SARFAESI
Act) was the only Indian law which allows banks and other financial institu-
tion to auction residential or commercial properties (of Defaulter) to recover
loans. But, the Insolvency and Bankruptcy Code, 2015 was introduced in
the Lok Sabha on 21 December 2015 by former Finance Minister, Late Arun
Jaitley, which was referred to a Joint Committee of Parliament on 23 December
2015, and recommended by the Committee on 28 April 2016.[6] The Code was
passed by the Lok Sabha and the Rajya Sabha on 5 May and 11 May 2016
respectively. Subsequently, it received assent from President Pranab Mukherjee
and was notified in The Gazette of India on 28 May 2016.[7]

The Code was passed by Parliament in May 2016 and became effective
in December 2016.[8] Section 243 of this Code repeals the Presidency-Towns
Insolvency Act, 1909 and Provincial Insolvency Act, 1920. [9]

The first insolvency resolution order under this code was passed by National
Company Law Tribunal (NCLT) in the case of Synergies-Dooray Automotive
Ltd. on 14 August 2017 and the second resolution plan was submitted in the
case of Prowess International Private Limited. The plea for insolvency was
submitted by company on 23 January 2017. The resolution plan was submitted
to NCLT within a period of 180 days as required by the code, and the approval
for the same was received on 2 August 2017 from the tribunal. The final order
was uploaded on 14 August 2017 on the NCLT website.

II. PROCEDURE

The Code proposes the following steps to resolve insolvency:

Initiation: When a default occurs, the resolution process may be initiated

by the debtor or creditor. The insolvency professional administers the process.
The professional provides financial information of the debtor from the informa-
tion utilities to the creditor and manage the debtor’s assets. This process lasts
for 180 days and any legal action against the debtor is prohibited during this
period.
 CNLU LAW JOURNAL–2020-21  111

Decision to resolve insolvency: A committee consisting of the financial

creditors who lent money to the debtor will be formed by the insolvency pro-
fessional. The creditors committee will take a decision regarding the future of
the outstanding debt owed to them. They may choose to revive the debt owed
to them by changing the repayment schedule, or sell (liquidate) the assets of
the debtor to repay the debts owed to them. If a decision is not taken in 180
days, the debtor’s assets go into liquidation.

Liquidation: If the debtor goes into liquidation, an insolvency professional

administers the liquidation process. Proceeds from the sale of the debtor’s
assets are distributed in the following order of precedence2:
i) insolvency resolution costs, including the remuneration to the insol-
vency professional,
ii) secured creditors, whose loans are backed by collateral, dues to work-
ers, other employees,
iii) unsecured creditors,
iv) dues to Government,
v) priority shareholders, and
vi) equity shareholders.

A plea for insolvency is submitted to the adjudicating authority (NCLT in

case of corporate debtors) by financial or operation creditors or the corpo-
rate debtor itself. The maximum time allowed to either accept or reject the
plea is 14 days. If the plea is accepted, the tribunal has to appoint an Interim
Resolution Professional (IRP) to draft a resolution plan within 180 days
(extendable by 90 days). Following this the Corporate Insolvency Resolution
process is initiated by the court. For the said period, the Board of Directors
of the company stands suspended, and the promoters do not have a say in the
management of the company. The IRP, if required, can seek the support of the
company’s management for day-to-day operations. If the CIRP fails in reviving
the company the liquidation process is initiated.
1. Inserted by the Insolvency and Bankruptcy Code (Amendment) Act,
2019 w.e.f. 16.8.2019.

III. BODIES UNDER THE CODE

A. Insolvency and Bankruptcy Board of India (IBBI)

The Insolvency and Bankruptcy Board of India was established on 1st

October, 2016 under the Insolvency and Bankruptcy Code, 2016 (Code). It is
112  EMERGING VALUE OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

a key pillar of the ecosystem responsible for implementation of the Code that
consolidates and amends the laws relating to reorganization and insolvency
resolution of corporate persons, partnership firms and individuals in a time-
bound manner for maximization of the value of assets of such persons, to pro-
mote entrepreneurship, availability of credit and balance the interests of all the
stakeholders.

It is a unique regulator: regulates a profession as well as processes. It has

regulatory oversight over the Insolvency Professionals, Insolvency Professional
Agencies, Insolvency Professional Entities and Information Utilities. It writes
and enforces rules for processes, namely, corporate insolvency resolution, cor-
porate liquidation, individual insolvency resolution and individual bankruptcy
under the Code. It has recently been tasked to promote the development of,
and regulate, the working and practices of, insolvency professionals, insolvency
professional agencies and information utilities and other institutions, in further-
ance of the purposes of the Code. It has also been designated as the ‘Authority’
under the Companies (Registered Valuers and Valuation Rules), 2017 for regu-
lation and development of the profession of valuers in the country.

B. Indian Institute of Insolvency Professional

The Indian Institute of Insolvency Professionals of ICAI is a Section 8

Company formed by the Institute of Chartered Accountants of India to enrol
and regulate insolvency professionals as its members in accordance with the
Insolvency and Bankruptcy Code, 2016 and read with regulations.

With advent of Insolvency and Bankruptcy Code, 2016 (IBC), considered as

one of the major economic reforms, insolvency and bankruptcy law has been
consolidated and codified for effective resolution of insolvency and bankruptcy
in India. The Code envisages the role of Insolvency and Professional Agencies
(IPAs) as intermediaries between the regulator and the professional members,
responsible for enrolling, educating, training and regulating the professional
members. IPAs are also responsible to protect the interests of other stakehold-
ers in the insolvency resolution process.

IIIP-ICAI after little over three years of its existence, is currently the largest
IPA in India. The vision document has been created to spell out and guide the
long-term aspirations of the institution, while paving way for ensuing Mission
statement drilling down to key strategic/priority areas for implementation in
near future. The document also advocates imbibing and exhibiting of certain
key values or attitudes in the functioning of IIIPI, as mentioned hereinafter.
 CNLU LAW JOURNAL–2020-21  113

C. Institute of Insolvency Professionals

ICSI Institute of Insolvency Professionals (ICSI IIP) is a frontline regulator

registered with the Insolvency and Bankruptcy Board of India (IBBI) under the
Insolvency and Bankruptcy Code, 2016. ICSI IIP is registered under Section 8
of the Companies Act, 2013 and is a wholly-owned subsidiary of Institute of
Company Secretary of India (ICSI). ICSI IIP has vested with the power and
authority inter alia to enrol, educate, train and also monitor the performance of
its registered members as an Insolvency Professional. Its mandate also includes
laying down standards of professional conduct and take steps in the direction
of disciplining its members, whenever required.

D. Insolvency Professional Agency

Insolvency Professional Agency of Institute of Cost Accountants of India

(“IPAICAI”) is a frontline regulator registered with the Insolvency and
Bankruptcy Board of India (“IBBI”) bearing registration number IBBI/IPA/16-
17/03 under the Insolvency and Bankruptcy Code, 2016 (“Code”). IPAICAI is a
Section 8 Company incorporated under provisions of the Companies Act, 2013
and is a wholly-owned subsidiary of the Institute of Cost Accountants of India.

IPAICAI is vested with the power to enrol, educate, monitor and regulate
the profession of the Insolvency Professionals who are enrolled as the profes-
sional members with it. The functioning of IPAICAI also includes laying down
the best practices, policies and standards on the different areas developed and
emerging areas under the Code, redressing grievances and disciplinary pro-
ceedings against the professional members and conducting inspection of its
professional members.

IPAICAI has professional members enrolled with it from versatile disci-

plines which include CMA, CS, CA, Bankers, Lawyers, Management Experts,
etc. To ensure continuous growth of the professional members and as a part
of continuous learning process, IPAICAI has a proven track record of intro-
ducing various initiatives from time to time in the form of IBC Au Courant
(Daily Newsletter), The Insolvency Professional: Your Insight Journal (Monthly
E-Journal), IBC Dossier (Bulletin on brief of landmark judgments), IBC
Case Books (A detailed study of company’s insolvency/liquidation process),
Preparatory Education Course for Limited Insolvency Examination, Certificate
Courses in various domains related to the insolvency and bankruptcy along
with the routine series of webinars, roundtables, conference and workshops
for the entire professional fraternity across India. Till date IPAICAI also has
a proven track record of conducting maximum inspection of its professional
members across India with an intent of improving their performance in line
with the best practices.
114  EMERGING VALUE OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

IV. WHO FACILITATES THE

RESOLUTION UNDER THE CODE?

The Code creates various institutions to facilitate resolution of insolvency.

These are as follows:
a. Insolvency Professionals: A specialised cadre of licensed professionals
is proposed to be created. These professionals will administer the reso-
lution process, manage the assets of the debtor, and provide information
for creditors to assist them in decision-making.
b. Insolvency Professional Agencies: The insolvency professionals will be
registered with insolvency professional agencies. The agencies conduct
examinations to certify the insolvency professionals and enforce a code
of conduct for their performance.
c. Information Utilities: Creditors will report financial information of the
debt owed to them by the debtor. Such information will include records
of debt, liabilities and defaults.
d. Adjudicating Authorities: The proceedings of the resolution process
will be adjudicated by the National Companies Law Tribunal (NCLT),
for companies; and the Debt Recovery Tribunal (DRT), for individuals.
The duties of the authorities will include approval to initiate the resolu-
tion process, appoint the insolvency professional, and approve the final
decision of creditors.
e. Insolvency and Bankruptcy Board: The Board will regulate insol-
vency professionals, insolvency professional agencies and infor-
mation utilities set up under the Code. The Board will consist of
representatives of Reserve Bank of India, and the Ministries of Finance,
Corporate Affairs and Law.

V. WHO CAN FILE FOR CORPORATE

INSOLVENCY RESOLUTION?

ƒƒ Financial Creditor: Person to whom ‘financial debt’ is owed, and includes

a person to whom such debt may have been legally assigned or transferred
in accordance with law (including a person residing outside India). Default
may be in respect of financial debt owed to any financial creditor of the
corporate debtor and not only the applicant financial creditor.

ƒƒ Operational Creditor: Person to whom ‘operational debt’ is owed and

includes any person to whom such debt may have been legally assigned or
transferred;
 CNLU LAW JOURNAL–2020-21  115

ƒƒ Corporate Debtor: Shareholder of the entity, an individual who is in

charge of managing the overall operations, a person who has the control,
supervision or oversight of the financial affairs of the corporate debtor;

ƒƒ The Code: Prescribes penalties for false and frivolous petitions.

VI. IS THE INSOLVENCY AND BANKRUPTCY

CODE A REMEDY TO ALL BANKING ISSUES?

Insolvency and Bankruptcy Code Bill was introduced in the Indian

Parliament by the NDA Government in 2015 but got final clearance in May
2016 Parliament Session. It was believed that this Bill will resolve all the
banking issues present in the economy. The main reason to introduce this Bill
was to fasten up the long insolvency process which it did. After this Bill, the
insolvency process for the company is 180 days with an extension of 90 days,
and for startups and small companies, it is 90 days with an extension of 45
days. The question is will it resolve all banking issues and the answer is no,
as India’s banking industry is going through a very difficult phase. Banks are
merging up due to bad loans and all this hustle can’t be simplified with this
Bill. IBC will only bad debts that are disclosed. Undisclosed bad loans or bad
loans that get disclosed after the victim absconds remain untouched. And there
are many incidents in past years in which creditors flew away from the country
after being unable to pay off the loan that they took. But, the IBC did improve
the economic system and the impact can be seen - the economy is clearly
stable.

VII. CONCLUSION

Overall this legislation is a huge step towards the ease of doing business in
India and has the potential to bring business practices in India closer to more
developed markets over the long term. The Insolvency and Bankruptcy Code,
2016, is a progressive legislation that is intended to improve the efficiency of
insolvency and bankruptcy proceedings in India. The new legislation provides
for the early detection of financial distress and a time-bound process for reso-
lution. However, many details on the IBC’s implementation need to be worked
out in the regulations, and its success will depend to a large extent on how
quickly a high quality cadre of insolvency resolution professionals will emerge
and on whether the time-bound process for insolvency resolution will be
adhered to in practice.

Operation of IBC, till now, has been spoiled by myriad factors ranging from
frivolous challenges posed by operational creditors and promoters to shortage
of Judges in tribunals. As a result, an important piece of legislation like IBC,
116  EMERGING VALUE OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

which was expected to usher in a new era of ease of doing business, may fall
into the trap of implementation failure. Timely amendments, which provide
more teeth to the Code, can only rescue the process. New amendments of 2019
in IBC should be closely watched and observed in that light.
 FUNDAMENTAL BREACH UNDER
UNCISG-THE DELPHIC ENIGMA
—Saurabh Tiwari*

The United Nations Convention on Contracts for the International Sale

of Goods (“CISG”) was developed by the United Nations Commission on
International Trade Law (“UNCITRAL”). It was signed in Vienna in 1980.
The convention aims to promote uniformity at the international level in sale of
goods. CISG is a self-executing treaty1 i.e. once signed by a contracting state;
the convention becomes automatically effective without the need of a domestic
law to bring it into force. The convention came into force on January 1, 1988.2
Today CISG has 89 signatory states with Palestine being the latest signatory to
the convention.3

The preamble of CISG sets out the aim of the convention, i.e. “adoption of
uniform rules which govern contracts for the international sale of goods and
taking into account the different social, economic and legal systems the con-
vention would contribute to the removal of legal barriers in international trade
and promote the development of international trade.”4

Article 7(1)5 of CISG states: “In the interpretation of this Convention,

regard is to be had to its international character and to the need to promote
uniformity in its application and the observance of good faith in international
trade.”

*
Student, VIth Semester (3rd Year), Dr Ram Manohar Lohiya National Law University,
Lucknow
1
Harry M. Flechtner, The United Nations Convention on Contracts for the International Sale of
Goods, United Nations Audiovisual Library of International Law (2009), <http://legal.un.org/
avl/pdf/ha/ccisg/ccisg_e.pdf>.
2
United Nations Commission on Trade Law, International Sale of Goods, <http://www.uncitral.
org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html>, (May 1, 2019).
3
Status, United Nations Convention on Contracts for the International Sale of Goods, <http://
www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG status.html>, (Jun. 1, 2019).
4
United Nations Convention on Contracts for the International Sale of Goods, Preamble, Apr.
11, 1980, 1489 UNTS 3.
5
United Nations Convention on Contracts for the International Sale of Goods, Art. 7(1), Apr.
11, 1980, 1489 UNTS 3.
118  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

Thus it is clear that one of the major aims of CISG was to bring uniformity
in International Sale of Goods and bring a wider acceptance of this convention
around the globe, but there are certain impediments in interpretation of bare
provisions of CISG which need to be resolved in order to achieve its aim of
wider acceptance.

One of the most important features of CISG is that of fundamental breach

which gives the right to parties to rightfully rescind the contract and this paper
aims to address the ambiguity prevailing in interpreting the foreseeability of a
breach under article 25. Article 25 defines fundamental breach as follows:

“A breach of contract committed by one of the parties is fun-

damental if it results in such detriment to the other party as
substantially to deprive him of what he is entitled to expect
under the contract, unless the party in breach did not foresee
and a reasonable person of the same kind in the same cir-
cumstances would not have foreseen such a result.”6

This concept of a fundamental breach as encompassed in article 25 is

important because a fundamental breach gives certain exclusive rights to the
party against whom the breach is committed. These exclusive rights include in
their ambit the ability of the party to rescind the contract altogether. This is to
be done without fixing an additional time for delivery as would be required in
any ordinary breach7, the prerogative of the buyer to be entitled to a substitute
delivery8 and the allocation of risk for defective goods9. All the aforementioned
exclusive rights are provided on the touchstone of a breach being a fundamen-
tal breach. Article 25 constitutes a “tool with the help of which one can distin-
guish between a fundamental and a simple breach of contract.”10

Article 25 has three constituents and all need to be fulfilled to brand a

breach as fundamental:

ƒƒ Substantial detriment

ƒƒ Foreseeability by the parties

6
United Nations Convention on Contracts for the International Sale of Goods, Art. 25, Apr. 11,
1980, 1489 UNTS 3.
7
United Nations Convention on Contracts for the International Sale of Goods, Arts. 49(1)(a),
51(2), 64(1)(a), 72(1), 73(1) & (2), Apr. 11, 1980, 1489 UNTS 3.
8
United Nations Convention on Contracts for the International Sale of Goods, Art. 46(2), Apr.
11, 1980, 1489 UNTS 3.
9
United Nations Convention on Contracts for the International Sale of Goods, Art. 70, Apr. 11,
1980, 1489 UNTS 3.
10
Ulrich Magnus, Wiener UN-Kaufrecht, in J Von Staudinger’s Kommentar Zum Bürgerlichen
Gesetzbuch Mit Einfuhrungsgesetzund Nebengesetzen (13th edn., 1995) at 255, <http://www.
cisg.law.pace.edu/cisg/biblio/ferrari14.html> (Mar. 1, 2019).
 CNLU LAW JOURNAL–2020-21  119

ƒƒ Foreseeability of a reasonable person

German Appellate Court has defined substantial detriment as: “A breach

by which the purpose of the contract is endangered so seriously that, for the
concerned party to the contract, the interest in the fulfilment of the contract
ceases to exist as a consequence of the breach of the contract (and the party
in breach of the contract was aware of this or should have been).”11

In other words, “there will be a fundamental breach of contract by the

defaulting party if a party fails to receive the essence of what he was entitled
to expect according to the contract.”12 Thus the fundamentality of a breach
does not depend on the quantum of the damages suffered rather it is dependent
on whether the breach deprives the parties of the essence of the contract or not.

The element of foreseeability is the second condition which determines the

fundamentality of a breach and subsequently affects the consequences which
follow. If the above two conditions are satisfied, then the breach would come
under the head of a fundamental breach, endowing exclusive rights upon the
parties as differentiated from any other breach.

“Uniform words will not bring the uniform results”13 and the current ambi-
guity surrounding article 25 attest the above statement. The timing as to when
is the fundamental nature of a breach of contract has to be foreseeable is con-
troversial and unsettled; whether the relevant time for determining the foresee-
ability under a contract is at the time when the contract is penned down or
when the violation of the contract occurs?14

This paper sets out the ongoing debate regarding foreseeability under CISG
and will present the views from both the sides.

One view is that the foreseeability of a breach is to be determined at the

time of conclusion of the contract as the parties rights and obligations freeze at
the time of conclusion of the contract which shall be addressed in the first part
of this paper.

The opponents of the aforementioned view believe that the foreseeability

under Article 25 is to be extended to the time of performance of the contract

11
Seller (Italy) v. Buyer (Germany) 5 U 164/90, <http://cisgw3.law.pace.edu/cases/910917g1.
html>, (15 Mar. 2019).
12
Seller (Italy) v. Buyer (Germany) 8 O 49/02, <http://cisgw3.law.pace.edu/cases/020702g1.
html>, (1 May 2019).
13
John O. Honnold, The Sales Convention in Action – Uniform International Words: Uniform
Application (1988) 8 J.L. & Com. 207, 207.
14
Peter Schlechtriem and Petra Butler, International Sale of Goods UN Law on International
Sales 98 (2009).
120  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

and is not limited to the time of conclusion of the contract. This view shall be
addressed in the second part of this paper.

The concluding part of this paper will bring forth the views of the author
on which interpretation of CISG’s foreseeability under Article 25 should be
favored.

I. FORESEEABILITY AT THE TIME OF

CONCLUSION OF THE CONTRACT

It is a core principal of International sale of goods that the interest of the

parties crystallizes at the time of entering of a contract and thus the foreseea-
bility under article 25 shall be determined at the time of conclusion of the con-
tract.15 This part of the paper will be establish the above statement in light of
laws governing the international sale of goods, the idea of fundamental breach
in various countries across the globe and other provisions of the convention
dealing with foreseeability.

A. Interpretation in light of International character

Before interpreting article 25 and foreseeability in the article, it is necessary

to look into article 7(1) of CISG which states that while interpreting the provi-
sions of this convention, regards should be given to the international character
of the convention. Taking bid from the same and viewing the international pic-
ture with regards to foreseeability that is prevalent around the globe, one finds
that the time of foreseeability in fundamental breach is limited to the time of
conclusion of the contract. The use of past tense “était” rather than “est” in
the French text,” “tenia” in place of present tense “tiene” in the Spanish text,
and “byla” in the place of “yest” in the Russian texts, convey that the forma-
tion of the contract is the relevant point in time to determine foreseeability.16
Moreover, in International laws governing the international sale of goods, such
as the UNIDROIT and European Sale Laws, the time of foreseeability though
has not been fixed in the bare provisions but the bare commentaries of the
same fix the time of foreseeability at the time of conclusion of the contract.17

15
Peter Schlechtriem and Butler, UN Law on International Sales: The UN Convention on the
International Sales, Springer (2009) p. 98 ¶ 112, (Mar. 2, 2019).
16
Robert Koch, “The Concept of Fundamental Breach of Contract under the United Nations
Convention on Contracts for the International Sale of Goods (CISG)” (1998), <https://cisgw3.
law.pace.edu/cisg/biblio/koch.html>.
17
Ibid.
 CNLU LAW JOURNAL–2020-21  121

This view is affirmed by reference to the rights which the injured party was
entitled to expect under the contract18; the aggrieved parties’ rights and the
breaching parties’ obligations crystallize at the time of conclusion of the con-
tract and thus the relevant point for determining the foreseeability shall be the
same.19

In practice, a businessman calculates the risks that may potentially arise

under a contract, at the conclusion of the contract.20 Taking account of the
events after the contract has been concluded would increase the risk, burden
and cost of one party without giving them a chance to negotiate the terms.
A buyer subsequent to the conclusion of the contract may (by just informing
the seller that he has contracted to sell the goods to a third party at a particu-
lar time) change the nature of a contract from one in which time was not of
essence to one where time is of essence.21

B. Uniform Interpretation, in coherence with Article 74

The aim of CISG as reflected from the preamble and article 7(1) is, to pro-
mote uniformity and, the impulsion of CISG is to provide a homogenous and
fair regime for contracts for the sale of goods globally.22 Hence the foreseeabil-
ity under article 25 shall be read in consonance with the rest of the provisions
of the convention as well as the prevalent laws governing the international sale
of goods. In the same bid, reference shall be made to article 74 of the conven-
tion which provides,

“Damages for breach of contract by one party consist of a

sum equal to the loss, including loss of profit, suffered by the
other party as a consequence of the breach. Such damages
may not exceed the loss which the party in breach foresaw
or ought to have foreseen at the time of the conclusion of the
contract, in the light of the facts and matters of which he then
knew or ought to have known, as a possible consequence of
the breach of contract”23

18
Robert Koch, “Whether the UNIDRIOT Principles of the International Commercial Contracts
may be Used to Interpret or Supplement Article 25 CISG” (November 2004), <http://cisgw3.
law.pace.edu/cisg/biblio/koch1.html>.
19
Peter Schlechtriem and Butler, UN Law on International Sales: The UN Convention on the
International Sales, Springer (2009).
20
Robert Koch, “The Concept of Fundamental Breach of Contract under the United Nations
Convention on Contracts for the International Sale of Goods (CISG)” (1998), <https://cisgw3.
law.pace.edu/cisg/biblio/koch.html>.
21
Ibid.
22
United Nations Convention on Contracts for the International Sale of Goods, Art. 7(1), Apr.
11, 1980, 1489 UNTS 3.
23
United Nations Convention on Contracts for the International Sale of Goods, Art. 74, Apr. 11,
1980, 1489 UNTS 3.
122  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

Foreseeability under article 74 of the convention is limited to the time of

conclusion of the contract and limits the damages payable to the losses and
loss of profits foreseeable at the time of entering and penning down of the
contract.

Thus, the avoidance of contract under ‘too remote’ circumstances which

were not foreseeable at the time of the conclusion of contract would be anoma-
lous and would not be justified or in coherence with article 74 of CISG.

Franco Ferrari is of the view that “due to the fact that the fundamental char-
acter of the breach relates to the legitimate expectations ‘under the contract’,
i.e., the expectations set forth in the contract and, thus, at the time of the con-
clusion of the contract.”24 Therefore the contract conclusion shall be the rele-
vant time for determining the foreseeability under CISG.

Professor Ziegel argues that to stretch the relevant time of determining the
foreseeability under article 25 beyond the point which is expressly so fixed in
Article 74, creates an incongruity between the two provisions of the conven-
tion. 25 And it would be illogical to say that a party can avoid the contract on
grounds that the same was foreseeable to the parties, but the same circum-
stances are considered to be too remote to provide for damages under Article
74.26

Further, Zeller states that, words under the convention cannot be given
meaning in seclusion and while reading a text one shall not tread beyond the
expressed boundaries provided in the convention itself and exhorts the inter-
pretations to be made as per the four corners principle. The four corners prin-
ciple is recapitulation of the interpretative mandate provided in article 7 of the
convention and the preamble.27 The foreseeability under Article 25 shall be
read in consonance with the rest of the provisions and should not be divorced
from them. This includes references to the promotion of consistency in inter-
pretation and the principle of good faith. Thus,

“foreseeability is a general principle of the CISG and must be

understood in conjunction with Article 74.”28

24
Franco Ferrari, “Fundamental Breach of Contract under the UN Sales Convention, 25 Years of
Article 25 CISG”, <https://www.cisg.law.pace.edu/cisg/biblio/ferrari14.html>.
25
Jacob S. Ziegel, “The Remedial Provisions in the Vienna Convention: Some Common Law
Perspectives”, <http://www.cisg.law.pace.edu/cisg/biblio/ziegel6.html>.
26
Ibid.
27
Zeller, “Four Corners – The Methodology for Interpretation and Application of the UN
Convention on Contracts for the International Sale of Goods”.
28
Bruno Zeller, “The Remedy of Fundamental Breach and the United Nations Convention on
the International Sale of Goods (CISG) - A Principles Lacking Certainty?” (2010) <https://
www.cisg.law.pace.edu/cisg/biblio/zeller15.html>, (14 Jun. 2017).
 CNLU LAW JOURNAL–2020-21  123

Moreover, the preamble of CISG provides that the act aims to promote
adoption of homogenous rules which govern contracts for the sale of goods
internationally and it would be anomalous to say that an international instru-
ment which seeks to bring uniformity at the international level in the sale of
goods does not have coherence between two of its own provisions (article 74
and article 25). Hence, the foreseeability under article 25 shall be fixed and
tested on the anvil of article 74 i.e., the time of conclusion of the contract shall
be the relevant time for determining the foreseeability. The abovementioned
approach will strike a balance between the two provisions of the UNCISG
talking of foreseeability and will also be in coherence with the preamble and
article 7 of the convention.

The bare reading of the text of article 25 provides that a substantial detri-
ment is depriving a party of “what he is entitled to expect under the contract”.
The expectations of a contract are formed at the time of conclusion of the con-
tract, and hence it follows innately that the foreseeability should be fastened at
the time of conclusion of the contract.29

However, the topic of foreseeability under article 25 has spawned only a few
case laws, and there has been only one ruling on the timing of foreseeability
under Article 25, in which the conclusion of the contract was found to be the
relevant time for determining foreseeability.30

C. The reasonable persons’ perspective

Article 25 also carries an element of a reasonable person and foreseeability

in his/her terms. The principle of reasonableness is referred to 37 times in the
Convention.31 It is a basic principle of International law and the same is rooted
deeply in the convention as well.32 These references demonstrate that the prin-
ciple of reasonableness constitutes a general criterion for evaluating the par-
ties’ behavior. The reasonable person standard was brought into the definition
of fundamental breach by the proposal of Egypt33 with the aim to provide more

29
Peter Schlechtriem and Ingeborg Schwenzer, Commentary on the UN Convention on the
International Sale of Goods (CISG) (2nd English edn., 2005), Art. 25 Para 15, 291.
30
Appellate Court Dusseldorf (Shoes case) 24 April 1997, <http://cisgw3.law.pace.edu/cas-
es/970424g1.html>.
31
See generally United Nations Convention on Contracts for the International Sale of Goods,
Arts. 8(2), 8(3), 16(2)(b), 18(2), 33(c), 34, 35(2)(b), 37, 38(3), 39(1), 43(1), 44, 46(2), 46(3), 47(1),
48(1), 48(2), 49(2)(a), 49(2)(b), 63(1), 64(2)(b), 65(1), 65(2), 72(2), 73(2), 75, 76(2), 77, 79(4), 85,
86(1), 86(2), 87, 88(1), 88(2), 88(3), Apr. 11, 1980, 1489 UNTS 3.
32
Albert H. Kritzer, Editorial Comments on “Reasonableness” as a general principle of the
Convention, <http://cisgw3.law.pace.edu/cisg/text/reason.html>.
33
UNCISG Vienna Conference on Contracts for the International Sale of Goods: Documents of
the Conference and Summary Records of the Plenary Meetings and of the Meetings of the
Main Committees, p. 88, UN DOC. A/CONF.97/C.1/L.106, (March-April 1980), <https://www.
uncitral.org/pdf/english/texts/sales/cisg/a-conf-97-19-ocred-e.pdf>.
124  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

objectivity to fundamental breach test. The reasonable person can also not be
taken to have knowledge of something that is not even foreseeable at the time
of conclusion of the contract and will take into consideration only those cir-
cumstances which are foreseeable at the time of conclusion of the contract.

II. FORESEEABILITY EXTENDING TO

THE TIME OF PERFORMANCE

Foreseeability under Article 25 extends to the time of performance and is

not limited to the time of contract formation and the same will be posited in
this part of the paper. The relevant time for determining the foreseeability
under CISG can be gauged by looking into the legislative history of the con-
vention. CISG while in its drafting stage had various proposals by the mem-
ber states which were debated and adopted or discarded, thus looking into
the legislative history of CISG would help clear the ambiguity surrounding
the relevant time of determining the foreseeability. The following part of the
paper also interprets the relevant time for determining foreseeability in light
of the principle of cure as incorporated in article 48(1), which brings out the
aim of the convention to keep the contract afoot and performance of the same.
Reference is also made to article 8 of the convention.

A. Legislative history with regards to foreseeability

The interpretation of any convention or legislation has to be done in the lit-

eral sense primarily and if ambiguity prevails the same shall be interpreted on
the touchstone of the intention of the drafters; through its legislative history.34
The importance of Travaux préparatoires as a tool of interpretation is evident
by the following view of Professor Lookofsky:

“In some quarters . . . the Convention’s legislative history . . .

ranks high on the list of sources of law: perhaps the next best
thing to an official commentary, the travaux are seen as evi-
dence of the founding fathers’ collective intent. And indeed, a
fair number of the CISG decisions already rendered by cer-
tain national courts justify their rulings, inter alia, by refer-
ence to this ‘process’ by which the Convention text came to
be…”35

34
Peter Schlechtriem and Ingeborg Schwenzer, Commentary on the UN Convention on the
International Sale of Goods (CISG) (2nd English edn., 2005) Art. 7 ¶20, 101.
35
Albert H. Kritzer, “The Convention on Contracts for the International Sale of Goods:
Scope, Interpretation and Resources”, Cornell Rev. of the CISG (1995) 147-187, available at
<https://www.cisg.law.pace.edu/cisg/biblio/kritzer.html>.
 CNLU LAW JOURNAL–2020-21  125

The CISG is an international instrument and the intention of the drafters

must be established in the light of the aim of the convention, thus making any
interpretation against the legislative intent or misinterpreting the words cho-
sen or deliberately omitted by the drafters will result in frustrating the aim of
wider and uniform acceptance of the Convention and would make the govern-
ing idea infructuous.

While analyzing the element of foreseeability under article 25 reference

shall be made to the preceding international laws in force governing the
International Sale of Goods, such as the ULIS (Uniform Law on International
Sale of Goods). Article 10 of the ULIS provides for fundamental breach as
follows:

“A breach of contract shall be regarded as fundamental wher-

ever the party in breach knew, or ought to have known, at
the time of the conclusion of the contract, that a reasonable
person in the same situation as the other party would not
have entered into the contract if he had foreseen the breach
and its effects” and consequently fixed the time of foreseea-
bility to the time of conclusion of the contract.

The CISG drafters purposely omitted specifying the relevant time and kept
it open for interpretation despite the ancestor’s express fixation of foreseeabil-
ity at the conclusion of the agreement.

Looking into the drafting debates of the CISG one finds that, UK made a
proposal at the thirteenth meeting36 of the drafting committee and proposed to
fix the time of conclusion of the contract as the relevant time for determining
the foreseeability under article 25. The proposal was to add the terms “unless
at the time when the contract was concluded the party in breach did not fore-
see or had no reason to foresee such a result” into article 25 (which was then
numbered as article 23).

This proposal was debated upon and received criticism from the delegates
from Hungary, Finland and Norway who reasoned that,

“information provided after the conclusion of a contract

could modify the situation as regards both substantial det-
riment and foresight.”37 Thus, the proposal was debated

36
UNCISG, Vienna Diplomatic Conference: Summary records of Meetings of the First
Committee (13th meeting), ¶1, A/CONF.97/5 (Mar. 19, 1980), <https://www.cisg.law.pace.edu/
cisg/firstcommittee/Meeting13.html>.
37
UNCISG, Vienna Diplomatic Conference: Summary records of Meetings of the First
Committee (13th meeting), ¶2,A/CONF.97/5 (Mar. 19, 1980), <https://www.cisg.law.pace.edu/
cisg/firstcommittee/Meeting13.html>.
126  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

upon and in the end the conclusion was reached that, “The
Committee, after deliberation, did not consider it necessary
to specify at what moment the party in breach should have
foreseen or had reason to foresee the consequences of the
breach.”38

It is clear from the legislative history that the foreseeability under article 25
extends to the time of performance and limiting it to the time of conclusion of
the contract would be going against the intent of the drafters of the convention.

B. Interpretation in light of principle of cure

The principle of cure is an integral part of the convention and the same is
encapsulated in the form of article 48(1) in the convention. Article 48 provides
the seller with an opportunity to cure the breach of an obligation, after the
date of delivery. Thus the overall aim of the convention is to keep the contract
afoot.39 This principal can be applied while interpreting foreseeability under
article 25 and thus it is rationale to extend the time of foreseeability under ar-
ticle 25 to the time of performance providing a window to cure the defect. The
above point will be illustrated by the following example:

Alpha (seller) and Omega (buyer) enter into a contract for the supply of
Desert Eagle pistols. As per the contract Alpha was to deliver pistols on a cer-
tain date, as Omega was in desperate need of the same. After the conclusion
of the contract but before the performance, there came a notification of the
government of Omega’s country which required that for importing pistols after
the coming of the notification, the importers have to file certain custom form,
signed and stamped by the CEO of the foreign exporter entity and then only
the goods can be allowed in the country. Omega informed the same to Alpha.
Now, if the time of foreseeability under article 25 is fixed at the time of con-
clusion of the contract then Alpha is under no obligation to provide for CEO’s
signature as they’ll take the defense of the notification not being foreseeable at
the time of conclusion of the contract and thus such interpretation would lead
to promotion of willful breach under the convention which will cause substan-
tial detriment to Omega but still, fundamental breach would not be claimed
successfully.

While, in the same case if the time of foreseeability is extended to the time
of performance, then Alpha is under an obligation of providing the signature so

38
UNCISG, Report of Committee of the Whole I relating to the draft Convention on the
International Sale of Goods, UNCITRAL Yearbook VIII (1977) A/32/17, pp. 25-64, <http://
www.cisg.law.pace.edu/cisg/legislative/B01-25.html>.
39
Bruno Zeller, “Fundamental Breach and the CISG – A Unique Treatment or Failed
Experiment?”, <http://www.cisg.law.pace.edu/cisg/biblio/zeller12.html>.
 CNLU LAW JOURNAL–2020-21  127

as to avoid the substantial detriment to Omega, consequently saving the perfor-

mance of the contract and also will be in coherence with the principle of cure
highlighted above. Ergo the foreseeability under article 25 is to be extended to
the time of performance and the same is also evident from the legislative his-
tory of the convention. Hence the latter interpretation of foreseeability in the
above illustration, under article 25 would avoid instances of willful breach and
would lead to a greater acceptance of the convention. Also the convention con-
tains principles of good faith embodied in article 7, and thus it would not be in
good faith to allow such a conduct.

C. Interpretation of Foreseeability under Article 25 in conjunction

with Article 8

A few commentators such as Bruno Zeller40 are of the view that foresee-
ability shall not only be interpreted from the terms of the contract but also
from article 8 of CISG. The need to consult article 8 arises from article 25
itself. Article 25, if paraphrased can be summed up as, a breach of an obliga-
tion causing substantial detriment to a party is not fundamental if the parties
could not have foreseen, or a reasonable person would have not foreseen such a
result.

Article 8 along with Article 7 of CISG is considered to be interpretative

tool for the convention. As per Zeller, “Certainty, flexibility and justice are dis-
played within the CISG and have been given meaning through Articles 7 and
8.”41

Article 8(3) particularly directs the court that in order to determine the
intent of the parties and the understanding, a reasonable person would have
regards shall be given to “all relevant circumstances of the case, including the
negotiations, any practice which the parties have established amongst them-
selves, usages and any subsequent conduct of the parties.”42 Thus, the use of
the words any subsequent conduct of the parties clearly extends the time of
foreseeability in terms of a reasonable person, to the time of performance.

In light of the above provision the foreseeability is to extend to the time of

performance, taking into consideration any subsequent act of the parties and
negating the assumption of crystallization of foreseeability at the time of con-
clusion of the contract. It is submitted that the above understanding of the fore-
seeability is also in consonance of the preamble of the convention.

40
Ibid.
41
Bruno Zeller, Damages Under the Convention on Contracts for the International Sale of
Goods 195 (2nd edn., 2009).
42
United Nations Convention on Contracts for the International Sale of Goods, Art. 8(3), Apr.
11, 1980, 1489 UNTS 3.
128  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

The point that such an interpretation will not be in coherence with the other
provision of the convention is rebutted with the idea that an international con-
vention is drafted for its wider acceptance and to bring uniformity. Article 25
is a sui-generis provision which is different from any other breach under the
convention. Treating it at par with any other breach and clipping the wings
of the provision by forcing a collective interpretation of the convention with
regards to other provisions which fix the time for determining the foresee-
ability at the time of conclusion of the contract would defeat the aim of the
convention.

To limit the time of foreseeability at the time of conclusion of the contract,

would act as a technical restriction on the function and aim of foreseeability
rule. Such an interpretation would go against the intent of the drafters of the
legislation, reducing the protection provided to the injured party.

The function of foreseeability test under article 25 is to protect the just

claims of the breaching party and nothing more and therefore to limit the time
of foreseeability under article 25 to the conclusion of the contract would be
misconstruing the underlying purpose which foreseeability under article 25
seeks to achieve.43

III. THE MIDDLE GROUND; AUTHOR’S INSIGHT

The middle ground that this paper tries to achieve is that the foreseeabil-
ity of the contract should not be limited to the time of conclusion of the con-
tract, so as to free the parties from any subsequent curable impediment which
may cause substantial detriment to the other party facilitating and aiding wil-
ful breach. Also, the paper rejects the idea to extend the time of foreseeability
under article 25 to the time of performance so as to increase the burden of one
of the parties without giving it a reasonable ground and opportunity to negoti-
ate the terms of the contract which have amended and increased its obligation
and expenses.

The suggestion that the author has to offer is that, first the reference should
be made to the contractual terms and the negotiations made and if the posi-
tion is not clear as per the importance of a certain obligation then only ref-
erence to the foreseeability should be made. Foreseeability is only relevant
where the substantial detriment has not been communicated prior to, or at the
time of conclusion of the contract. Such an approach is based on views taken
by renowned commentators such as Schlechtriem and Robert Koch who have
expressed that,

43
John O. Honnold and Harry M. Flechtner (ed.), Uniform Law for International Sales under the
1980 United Nations Convention 278 (4th edn., 2009).
 CNLU LAW JOURNAL–2020-21  129

“only when the particular importance of the violated duty

has neither been established in the contract itself nor dis-
cussed during the contract negotiations, can foreseeability be
relevant.”44

Hence before going into the intricacies of the foreseeability under Article
25, reference should be made to the contractual terms and the negotiations and
it should be seen that whether the importance of a particular obligation was
made clear and discussed in the contract or not. As in the abovementioned
example of Alpha-Omega Desert Eagle, it was clear from the beginning that an
on time delivery of the pistols is necessary and an integral part of the contract.
Hence it was very much foreseeable that if the on time delivery is not made
to Omega then the party would suffer substantial detriment. Thus there is no
need to go into the question of foreseeability of the detriment, and it is clear
from the negotiations itself that the time is of essence. However the impedi-
ment that comes up after the conclusion of the contract should be easily and
reasonably surmountable. Also, the party taking up additional responsibility of
overcoming the impediment must be provided with an opportunity to renego-
tiate the terms of the new obligation and be reasonably compensated for the
same. While determining the foreseeability element under fundamental breach
regards shall be given to the intent of CISG to get a contract performed, i.e.
the principle of cure and this intent is evident from the inclusion of the provi-
sions of curing a breach. Taking a stand which frustrates this basic objective of
the convention and totally discards the provisions for curing a breach is not in
consonance with the intent of the drafters of the convention.

The question of foreseeability under article 25 has been left deliberately

open by the drafters to be determined on a case to case basis. Giving it rigidity
by fixing the time of foreseeability at the time of conclusion of the contract or
to the time of the performance would put one of the parties in a position which
would be detrimental to the other. The relevant excerpt from the relevant com-
mittee report is reproduced below:

“The Commission, after deliberation, did not consider it nec-

essary to specify at what moment the party in breach should
have foreseen or had reason to foresee the consequences of
the breach.”45

Hence the middle ground that this paper proposes is that the foreseea-
bility should be determined at the time the willful breach is committed. The
44
Schlechtriem/Schwenzer, Commentary on the UN–Convention on the International Sale of
Goods (CISG) Art. 25 Para 14.
45
UNCISG, Report of Committee of the Whole I relating to the draft Convention on the
International Sale of Goods, UNCITRAL Yearbook VIII (1977) A/32/17, pp. 25-64, <http://
www.cisg.law.pace.edu/cisg/legislative/B01-25.html>.
130  FUNDAMENTAL BREACH UNDER UNCISG-THE DELPHIC ENIGMA

willfulness of a breach is the factor which shall be considered while determin-

ing the foreseeability of a fundamental breach. Thus, in the above example the
breach’s foreseeability is to be determined at the time before the performance
but after the conclusion of the contract i.e. when Omega informed Alpha of
the new notification which if not abided would lead to substantial detriment to
buyers.

The abovementioned interpretation of the CISG is favoured by international

authors such as Professor Honnold46 who is of the view that while determining
the foreseeability of the breach, information received post entering into effect
of the contract but prior to performance of the same by the parties shall be
taken into account. Commentators as Fletchner47, Liu48, Mascow49, have also
agreed to the above cited views of Professor Honnold.

The author herein does not only propose that the circumstances and infor-
mation post contract formation and before performance of the contract should
be taken into account. It also clarifies that the other party is under an obliga-
tion to inform the party who will have to take care of the changed circum-
stances to avoid a fundamental breach, of the relevant circumstance which
would affect the performance of such performing party.

The duty to inform also draws its authority from the good faith principal
incorporated in article 7 of the CISG, which requires good faith to be observed
by the parties in performing their duties and obligations and the obligation of
good faith supposedly implies at least three other duties: “the duty to inform
the other party of circumstances which might threaten the performance of the
contract; the duty to renegotiate the contract in order to salvage the commer-
cial relationship if circumstances permit; and the duty to mitigate damages in
the event of a breach.”50 Good faith is a part of general principal and if there
is no clarity in a law or treaty regards should be given to the general princi-
ples of law, of which good faith is perhaps the most important, as it underpins
many international legal rules. Hence, the party (which will be affected by the
changed circumstances and to whom substantial detriment will be caused), is
under an obligation to inform the other party of the changed circumstances and
this information shall be made prior to the performance of the contract and

46
John O. Honnold, Uniform Law for International Sales under the 1980 United Nations
Convention 209 (3rd edn., 1999).
47
Harry M. Flechtner, “Remedies under the New International Sales Convention: The
Perspective from Article 2 of the U.C.C.” (1988) 8 Journal of Law and Commerce 78.
48
Chengwei Liu, electronic excerpt from The Concept of Fundamental Breach: Perspectives
from the CISG, UNIDROIT Principles and PECL and Case Law (2nd edn., 2005) Ch. 2.3(d), n
106.
49
Fritz Enderlein and Dietrich Maskow, (1992) 75, 116.
50
Thomas E. Carbonneau, “Rendering Arbitral Awards with Reasons: The Elaboration of a
Common Law of International Economic Transactions”, 23 Columbia Journal of Transnational
Law 580 (1985).
 CNLU LAW JOURNAL–2020-21  131

should not be so late that the other party cannot take into note the changing
circumstances.

The additional cost and effort made by the party to avoid the substantial
detriment should also be compensated and as stated above, if there are substan-
tial changes then the party should also be given the chance to renegotiate the
terms as per the obligation of good faith.
 RELEVANCE OF HEALTH ECONOMICS,
LAW & POLICY FOR ECONOMIC GROWTH
—Dr. Shivani Mohan1 & Dr. Shweta Mohan2

“Om Sarve Bhavantu Sukhinah

Sarv Santu Nir-Aamayaah
Sarve Bhadraanni Pashyantu Maa Kashcid-Duhkha-Bhaag-Bhavet
Om Shaantih Shaantih Shaantih.”3

Abstract — Economic development of a country is very closely

associated with the state of well-being of its people which is
now accepted as one of the most important determinant of economic
growth and progress. Health is both an objective of development and
also a means to it. The most apparent gains from healthy workforce
are savings of workdays, improved human resources efficiency, better
job opportunities and lengthier and healthier working lives. Countries
with weaker health and education conditions often find it harder to
achieve sustained growth. A good health always bestows to the nation’s
economy with economic efficiency, optimum utilization resources,
economic growth and development and savings in long run. Although,
India has considerable health infrastructure in urban areas but rural
area till date seems to be largely neglected. This urban rural difference
has created wide interstate disparity in health status. Even after 72
years of independence and continuous growth and development,
India’s healthcare system is at the rear as compared to other emerging
economies. However, the crucial linkages between public health and
human rights are well recognised by the Constitution of India in Art. 47
of Part VI, enunciating the duty of the state to raise the level of nutrition

1
Senior Assistant Professor of Economics, Chanakya National Law University, Patna.
2
Assistant Professor of Economics, National University of Study and Research in Law, Ranchi.
3
Inspired from the philosophy mentioned in the Brihadaranyaka Upanishadas verse 1.4.14.
It means that may everyone be happy, may everyone be free from all diseases, may every-
one see goodness and auspiciousness in everything, may none be unhappy or distressed.
 CNLU LAW JOURNAL–2020-21  133

and the standard of living and to improve public health. The National
Human Rights Commission of India has also made several significant
recommendations in this regard. In addition to equitable, continuous
and broad based investment in women and child healthcare sector the
commission also recognises the importance of adequate investment,
especially in the most vulnerable and marginalised sections of the
society like scheduled caste, scheduled tribes, minorities, disabled
and elderly people. Nevertheless, the population of India reflects
a very little understanding of the importance of wellness and good
health requirements. If some of the most important steps are taken
immediately like more technology-led innovations in healthcare aiding
diagnosis, remote monitoring of patients through telemedicine etc.,
enabling 100% FDI in hospitals, private equity, more use of generic
medicines, advancement in medical tourism, continuation of flagship
programmes like Ayushman Bharat, managing medical cost effectively
without compromising quality medical care, effective implementation
of National Health Policy than India’s healthcare scenario will improve
dramatically aiding more to economic advancement.

I. INTRODUCTION

As a human being we have always considered health as our most important

asset and therefore, it has always been a matter of our utmost concern irre-
spective of our age, gender and socio-economic setup. The constitution of India
under Article 21 guarantees protection of life and personal liberty to every cit-
izen. The right to life which is the most important and basic of all is also very
challenging to define as it has wider application. In Francis Coralie Mullin v.
UT of Delhi 4 J. Bhagwati, held

“we think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the
bare necessaries of life such as adequate nutrition, clothing
and shelter over the head and facilities for reading, writing
and expressing oneself in diverse forms, freely moving about
and mixing and commingle with fellow human beings”.5

However, the judge also acknowledged that there is no denial that the
degree and the content of the components of this right would definitely be

4
Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608. Chet Ram Vashist v. MCD, (1980) 4
SCC 647 : AIR 1981 SC 653.
5
Id., at p. 753.
134  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

contingent to the level and extent of economic advancement of the country.6

Economic development of a country is very closely associated with the state
of well-being of its people which is now accepted as one of the most important
determinant of economic growth and progress. Squarely based on the expe-
riences of most of the developed nations it is accepted that the vital accom-
plishment in the major areas in health sector has always paved the way for
economic advancement.

Health economics deals in fundamentals of economics which are applica-

ble to the healthcare sector. On one hand, it focuses on the issues of demand
for healthcare services its distribution on the other hand, it deals with the sup-
ply of healthcare through public and private sector service to mitigate the gulf
between the demand for and supply of healthcare amenities in the economy. It
is one of the disciplines of economics which educates the society to allocate
its resources among alternative uses. Health can be considered as resource as
well as investment goods. Improvement in the health condition of the people
ultimately enhances the level of human capital of a nation. It is human capital
which activates other factors of production. According to the Commission on
Growth and Development, population health and economic growth have direct
and positive relationship. The foremost role of health is in increasing labor pro-
ductivity. Healthy workers are less absent from work and are relatively more
productive when working. Secondly, there is very close relationship between
health and education. It is generally seen that cognitive development and abil-
ity to learn have direct relationship with the healthcare facilities provided
during childhood. Also a healthy childhood has direct impact on school attend-
ance.7 Furthermore, adult mortality and morbidity depresses the promising
returns to investments in schooling. Improvement in childhood and adult health
condition acts as an incentive for future investment in education. Thirdly, there
is strong impact of health on savings of the people. The larger is the prospec-
tive of lifespan the more is the incentive to save for future, resulting in overall
increase levels of saving, wealth and capital with the nation. It is also noticea-
ble that poor healthcare conditions can cost families more, resulting in selling
of assets and forcing them into vicious cycle of poverty.8

In recent times, the demand for healthcare services has grown-up very fast
and at the same time the resources to gather the demand for healthcare ser-
vices is largely inadequate in supply. The fundamental reason behind increase
in demand for healthcare services is not only to safeguard and ensure good
health condition but also increase their quality participation in economic

6
Mahendra P. Singh (ed.), V.N. Shukla’s Constitution of India, 192 (Eastern Book Company,
2011).
7
David E. Bloom and David Canning, “Population Health and Economic Growth” 1
(Commission on Growth and Development, World Bank, Working Paper No. 24, 2008).
8
David E. Bloom and David Canning, “Population Health and Economic Growth” 1
(Commission on Growth and Development, World Bank, Working Paper No. 24, 2008).
 CNLU LAW JOURNAL–2020-21  135

activity. The demand for healthcare is obtained from the responsiveness

amongst the people of the country. The significance of health economics is ris-
ing particularly in the developing countries largely because of the geographical
condition.9 As discussed earlier, the health of the human capital is very vital
for the economic production. Barriers to access in the financial, organizational,
social, and cultural domains can limit the utilization of services, even in places
where they are “available.”10

II. RELATIONSHIP BETWEEN

HEALTH AND ECONOMICS

Health economics in general parlance is related with available health policy,

with respect to different health services and the decision making process in
buying and paying for the same. Moreover, it is the subject which helps in the
evaluation of the end results of the consumption. Rationality which is one of
the most important subject matter of economics, explains that a rational person
under these circumstances deals with the questions on pocket payment rather
than the decisions about how to contest scrupulous illness or the menace.11
It has always been a difficult task to attain maximum satisfaction out of the
limited resources. Therefore, the decisions related to priorities are extremely
crucial. Above all there is no denial that a good health always bestows to the
nation’s economy in the following manner:

A. Health and Economic Efficiency

There is a very famous idiom that “Health is Wealth”. Poor health condi-
tions and poverty are associated to each other as they share direct and pos-
itive relationship. Bad health creates pressure even among those who are
financially secure. There are many real life instances ‘when prolonged illness
has driven the economically well-off individuals into financially worse off.
Therefore, it is very important to prevent the non-poor families from sinking
into poverty trap on one hand and on the other hand reducing the distress of
those who are already vulnerable section of the society. A country’s economic
efficiency improves when per capita productive capacity increases and that in
turn depends on physical wellness and soundness of the population. The most
apparent gains from healthy workforce are savings of workdays, improved
human resources efficiency, better job opportunities and lengthier and healthier

9
Shanmugasundaram, Yasodha, Theory and Practice of Health Economics in India (Institute of
Advanced Studies and Research, Chennai, 1994).
10
Gulliford M., Figueroa-Munoz J., Morgan M., Hughes D., Gibson B., Beech R., et al., 7 “What
Does ‘Access To Health Care’ Mean?” Journal of Health Services Research and Policy, 186-88
(2002).
11
Musgrove Philip (2004), Health Economics in Development, The World Bank, Washington
DC, p. 20.
136  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

working lives. Health is both an objective of development and also a means

to it. In case of India, a study conducted on lepers in urban areas of Tamil
Nadu concluded that if abnormalities and other form of physical defects with
them are reduced than the estimated annual incomes of such people with job
would improve by more than three folds. It also concluded that if deformity of
all 645,000 lepers in India is removed, it would add a projected $130 million
to the country’s GNP (1985).12 In 1993, the World Bank, projected that leprosy
accounted for only 1% of the country’s disease burden and if eradicated, can
increase India’s GNP enormously. This interesting fact itself is stimulating and
enough to realize the effect of absolute removal or near to complete elimina-
tion of disease burden in India and the potential impact it will have on GNP.13
Unfortunately, in 2001, India remained one of the last eight countries to harbor
leprosy, with close to 400,000 new cases diagnosed each year.14 The estimates
put India with about two thirds of the global burden of the disease.15

B. Health and Optimum Utilization Resources

Economics as a subject deals with the problem of optimum utilization of

resources in order to attain maximum efficiency. There is a direct relationship
between health and optimum utilization of economic resources of a country.
In poor developing economies hefty amount of money is spent on treatment
of diseases rather than prevention. This results in wastage of scarce resources.
Instead of reasonable investment in health, treatment of diseases becomes pri-
ority. A country’s productive efficiency can increase if prudent investment is
made on healthcare sector. At the same time necessary measures should be
taken regarding eradication of diseases to enhance productivity of the labours.
Consequently, spending on health helps in better usage of factors of production
like land, labour and capital and entrepreneur.

C. Health, Economic Growth and Development

A healthy child a prerequisite for the bright future of the country. Physically
and mentally fit children enroll in the school and hence add to the HDI index
of the country. Poor health conditions, insufficient hygiene and nourishment
unfavorably affect the schooling. Unfortunately, India has the largest number of

12
Emmanuel Max and Donald S. Shepard, “Productivity Loss due to Deformity from Leprosy in
India” 57 Int. J. Lepr . 476-82 (1989).
13
World Bank, “The World Development Report - Regional Rural Development; Health
Monitoring and Evaluation; Health Systems Development and Reform; Health Economics and
Finance; Adolescent Health”, 18 Working Paper No. 12183, 1993).
14
IDA, “India: Second National Leprosy Project”, World Bank (July 25, 2019, 10.01 a.m.),
<http://web.worldbank.org/archive/website01291/WEB/0__CO-87.HTM>.
15
Ibid.
 CNLU LAW JOURNAL–2020-21  137

stunted and malnourished children with the total population of 48.2 million16.
Jim Yong Kim, president of World Bank, on his visit to New Delhi in June
2016 said,

“Stunted children will be less healthy and productive for the

rest of their lives, and countries with high rates of stunting
will be less prosperous.”17

He further said that,

“The reason I am pushing so hard on stunting is because we

have spent a lot of time looking at possible paths of economic
development in developing countries. It is my suggestion to
the government of India to work with us on stunting. This
is the bottom line: if you walk into the future economy with
40% of your workforce having been stunted as children, you
are simply not going to be able to compete.”18

As per the Global Nutrition Report, 2015, about 39% of Indian children five
or younger are stunted which is higher than the global average of 24%.19 This
is a threatening position for any economy as it will affect next generation lit-
eracy, diminished cognitive skills and will pose several kinds of health associ-
ated risks. Besides, there are many empirical and historical studies suggesting
a very strong relationship between health and economic growth. Nobel laureate
Robert W. Fogel discovers that somewhere between one third and one half of
England’s economic growth in the past 200 years is due to enrichments in the
population’s food consumption.20 There is no denial to the fact that a hale and
hearty, educated individual positively creates more wealth than an uneducated
and stunted individual.

Therefore, health and economic performance are always interlinked.

Countries with weaker health and education conditions often find it harder
to achieve sustained growth. As per OECD, a 10% improvement in life

16
Swagata Yadavar, “Budget 2018: India’s Healthcare Crisis is Holding Back
National Potential”, IndiaSpend (June 20, 2019, 10.27 a.m.), <www.indiaspend.com/
budget-2018-indias-healthcare-crisis-is-holding-back-national-potential-29517/>.
17
Global Data, 2017, Stunting, The Bill and Melinda Gates Foundation (Feb. 10, 2019, 11 a.m.),
<https://datareport.goalkeepers.org/>.
18
Ibid.
19
Ibid.
20
Mexican Commission on Macroeconomics and Health, Macroeconomics and Health: Investing
in Health for Economic Development 15 (1st edn. Universidad de las Americas, Puebla, 2004).
A long-term study for England carried out by Robert Fogel, a Nobel Prize winner in
Economics, demonstrated the role that health plays in growth particularly in case of devel-
oped countries it is largely responsible for their superior economic performance as compared
to poor economic country.
138  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

expectancy at birth is associated with a rise in economic growth of some

0.3-0.4 percentage points a year.21 A good interaction between health and the
economy always has a direct and positive relationship with economic growth,
income, investment, employment and improvement in social environments.

Source: Global Nutrition Report, 2015.

D. Health and Savings in long run

The expenses incurred on health in short run inhibit the occurrence of dis-
eases in long run which in turn amounts huge savings in cost of treatment.
A report by World Bank on health showed that in America polio eradication
programme saved approximately $320 million and $ 1.3 million over and above
of the expenditure made on the eradication of the same.22 The program’s net
return, after discounting at even as much as 12 per cent a year, was estimated
to be between $18 million and $480 million.23 Therefore, the expenditure
on healthcare in short run has a multiplier effect in the long run in terms of
improved health, productivity and savings.

21
Julio Frenk, “Health and the Economy: A Vital Relationship 2004”, OECD (Mar. 5, 2019, 10
a.m.) <http://oecdobserver.org/news/archivestory.php/aid/1241/Health_and_the_economy:_A_
vital_relationship_.html>.
22
World Development Report, 1993, Investing in Health, World Bank and University Press, New
York, (Mar. 11, 2019, 11:12 a.m.) <https://openknowledge.worldbank.org/handle/10986/5976>.
23
Id., at 19.
 CNLU LAW JOURNAL–2020-21  139

III. THE ECONOMICS OF GOOD HEALTH

Healthy population is a motivating factor for the economic growth and

development of nation. Human capital is one of the factors of production that
instantiates the other factors. Hence, it is the duty of the state to guarantee or
ensure sound health standards and education for its population. The importance
of healthy human capital can be understood with its potential impact on eco-
nomic growth and advancement. Most of the developed nations and their rate
of economic advancement testifies the above fact. A healthy individual car-
ries out work more efficiently and builds on the growth and prosperity of the
nation.

Upgrading the health principles or in other words the HDI Index has been
one of the major shove in social and economic development programs of devel-
oping countries. The third world countries are the worst affected countries fac-
ing the problem of poverty and malnutrition. If the work force of a country
is suffering from poverty and malnourishment it is less likely to add into the
productivity of the same. Today such countries are facing problems in tackling
malnutrition and poverty in order to design effective programs to enhance the
worth of their labor force for the inclusive growth and development.

Almost all the developing economies endow a smaller amount of their finan-
cial resource in health development programmes. Therefore, to accelerate the
growth such countries should meet the requirements laid down by Human
Development Index. There is direct and proportional relation between the
expenditure on health and economic growth. Good health promotes the rise in
income and living standards. In case of India, expenditure on healthcare has
always been a challenge.

S. No. 2015-16
State Budget including Central Grants 115933.761
(including Treasury Route)
State Budget (Own Expenditure) 95310.952
Centre MOHFW 35189.49
Central Grants Through Treasury 20622.81
3601 20379.49
3602 243.31
Other (Central Govt. Hospitals/Institutions, 14566.693
etc.)
Other Central Ministries* 8642.18
Grand Total (1+2+3+4) 140054.55

Source: “Health Sector Financing by Centre and States/UTs in India 2015-16 to 2017-18”,
National Health Accounts Cell, Ministry of Health & Family Welfare.
140  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

Recently, the central government has increased the healthcare expenditure

from 0.9% of GDP in 2016 to 1.28 % in 2017-18 however, the overall health
expenditure remains one of the lowest among the BRICS countries.24 As per
the World Bank data, 2016, India spends just 0.9 % of public expenditure on
healthcare as compared to 7.4% of the world average.25 Although, in the cur-
rent budget 2019-20, the allocation of resources for project Ayushman Bharat
has been increased up to Rs. 6,400 crore which is definitely a massive expendi-
ture, yet India will have to work very hard towards functional and distress free
comprehensive wellness system.26

Nevertheless, there is a positive indication towards the healthcare scenario

in the country today which points towards an increasing awareness related to
diseases and their treatment but at the same time it reflects very little under-
standing of the importance of wellness and good health requirements.

IV. CRITICAL ANALYSIS GOVERNMENT POLICY, LAW

AND HEALTHCARE INFRASTRUCTURE IN INDIA

Health infrastructure is an imperative indicator or vital component of exist-

ing healthcare policy and welfare mechanism in a country. Such infrastructure
is considered to be the backbone of the economy. Although, India has consid-
erable health infrastructure in urban areas but rural area till date seems to be
largely neglected. This urban rural difference has created wide interstate dis-
parity in health status.

One of the prominent features of Indian healthcare facility is that it is pro-

vided by the state government at no or minimal cost, but at the same time, the
quality of the same is supposed to be non-reliable. Therefore, those who want
to avail better health service have no choice rather than to approach private
healthcare which is an expensive affair. It is very interesting to know that in
our country, the private sector is the dominant player in the healthcare but at
the same time there is absence of regulations in ensuring inconsistency in the
value and costs of services offered by them. The solutions lie in the hands of
local and national initiatives. Though India was known for its cultural and tra-
ditional healthcare therapy, today it depends more or less on imported western
models of the healthcare system which is based on urban hospitals. All these
have been done at the cost of providing inclusive primary healthcare to all.
This has completely deserted uniform protective, promotive rehabilitation and
public health measures. In a poor country like India out of pocket expenditure

24
Ashok Varma, “Budget 2019: Ayushman Bharat Key Programme: What Data Suggests on
Need to Speed Healthcare Reforms”, The Financial Express, July 4, 2019.
25
Ibid.
26
T.S. Ravi Kumar and Geogary Abharam, “We Need Leap in Healthcare Spending”, The
Hindu, Feb. 7, 2019.
 CNLU LAW JOURNAL–2020-21  141

(OOPE) constitutes more than 60% of all health expenses and approximately
63 million people fall into the trap of poverty only because of poor financial
protection and terribly high healthcare costs.27

The expensive treatment in India and has led to discrimination in the

healthcare services. In our country the insurance pays only for the admission
and treatment of patient. In the year 2000 government of India made flexible
policy for the insurance and permitted corporate players into the insurance
sector.

Ease of access to human resources for health facilities has been defined
as the “heart of the health system in any country.”28 There is a lack of relia-
ble source which could provide the numbers of health workforce. In case of
India majority of the healthcare professionals work in the unorganized and pri-
vate sector. According to the government of India, there are 1,668 people on
one doctor.29 However, in the last ten years there is an increase in the num-
ber of dental surgeons registered with Central/State Dental Council of India.30
According to one estimate, providing quality healthcare facilities to just 340
million more people may result in increasing additional employment opportuni-
ties and an approximately 141 billion INR of savings to be used by the country
for more productive investment in the next 5 years.31

Recently, The Union Cabinet chaired by the Prime Minister Shri Narendra
Modi in its meeting on 15.3.2017, approved the National Health Policy, 2017.
The Policy pursues to reinforce and prioritise the role of government in defin-
ing healthcare systems in all dimensions like investment in health sector,
organisation of healthcare services, prevention of diseases, promotion of tech-
nology and encouraging medical pluralism.32 The existing policy is said to
be more patient centric and quality driven. It aims to improve health condi-
tions of the people the country through concerted effort and policy action in
all sectors.33 Its objective is to address various forms of communicable dis-
eases like Tuberculosis, HIV/AIDS, Leprosy, Vector Borne Diseases like
27
Indrani Gupta and Mrigesh Bhatia, “Indian Healthcare System”, International Commonwealth
Fund (Mar. 15, 2019, 12.02 p.m.), <https://international.commonwealthfund.org/countries/
india/>.
28
Central Bureau of Health Intelligence, “National Health Profile 2018”, World Health
Organisation (Mar. 15, 2019, 12.30 p.m.), <http://www.cbhidghs.nic.in/Ebook/National%20
Health%20Profile-2018%20 (e-Book)/files/assets/common/downloads/files/NHP%202018.pdf>.
29
Press Trust of India, “In India 1 Doctor Serves 1,668 People; 8 Lakh Doctors in Total”,
Business Standard, Feb. 3, 2017, at.
30
Central Bureau of Health Intelligence, supra note 28.
31
PWC 2017, “Funding Indian Healthcare Catalysing the Next Wave of Growth”, Price
Waterhouse and Coopers (Mar. 15, 2019, 10.02 a.m.), <https://www.pwc.in/assets/pdfs/publica-
tions/2017/funding-indian-healthcare-catalysing-the-next-wave-of-growth.pdf>.
32
Ministry of Health and Family Welfare, Government of India, “National Health Policy 2017”,
(June 24, 2019, 12 a.m.), <https://mohfw.gov.in/sites/default/files/9147562941489753121>.
33
Ibid.
142  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

Malaria, Japanese Encephalitis/Acute Encephalitis Syndrome etc. The policy

also recognises the need to address the increasing incidence of chronic disease
like oral, breast and cervical cancer in addition to hypertension and diabetes.
Furthermore, the policy envisages to include mental health and population sta-
bilisation programme with enhanced provisions for women’s health and gender
mainstreaming.34

Optimistically, if some of the most important steps are taken immediately

like more technology-led innovations in healthcare aiding diagnosis, use of
robotic surgeries, radio surgeries, remote monitoring of patients through tele-
medicine etc., enabling 100% FDI in hospitals, private equity, more use of
generic medicines, advancement in medical tourism, continuation of flagship
programmes like Ayushman Bharat and last but not least managing medical
cost effectively without compromising quality medical care than India’s health-
care scenario will improve dramatically.

At this juncture it is very important to understand that the right to health is

a fundamental part of our human rights in understanding of a life in dignity.
It is very well defined in the preamble of the constitution of the World Health
Organisation (WHO) as:

“health is a state of complete physical, mental and social

well-being and not merely the absence of disease or
infirmity”.35

Furthermore, the preamble states that:

“the enjoyment of the highest attainable standard of health

is one of the fundamental rights of every human being with-
out distinction of race, religion, political belief, economic or
social condition.”36

In order to achieve abovementioned objective WHO in its preamble accepts

the responsibility of the government and states “Governments have a responsi-
bility for the health of their peoples which can be fulfilled only by the provi-
sion of adequate health and social measures.”37 If we look at the Constitution
of India, Art. 47 of Part VI, enunciates the duty of the state to raise the level
of nutrition and the standard of living and to improve public health.

34
Ibid.
35
WHO Constitution preamble, (June 24, 2019, 10 p.m.), <https://www.who.int/about/
who-we-are/constitution>.
36
WHO Constitution preamble, (June 24, 2019, 10 p.m.), <https://www.who.int/about/
who-we-are/constitution>.
37
Id., at 29.
 CNLU LAW JOURNAL–2020-21  143

“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…”38

Moreover, in India, the crucial linkages between public health and human
rights are well recognised by the National Human Rights Commission and it
has made several significant recommendations in this regard. It has suggested
improvements and issued guidelines for the right to healthcare, public hearings
for access to healthcare, systematic changes to improve, increase availability
and affordability of health services.39 It has also recommended the incorpo-
ration of mental health in primary health services. The commission has pas-
sively advocated for “Right to Health” and has been active in promoting basic
healthcare services in rural areas, ensuring essential drugs availability at pri-
mary healthcare centres, organising regular immunisation programme related
to childhood diseases. In addition to equitable, continuous and broad based
investment in women and child healthcare sector the commission also recog-
nises the importance of adequate investment, especially in the most vulnera-
ble and marginalised sections of the society like Scheduled Castes, Scheduled
Tribes, Minorities, Other Backward Caste, disabled and elderly people. As
there is always a chance of intergenerational transmission of poverty and ine-
quality which may lead to irreversible negative impact on the overall all devel-
opment of the poor marginalised class.40

Even after 72 years of independence and continuous growth and develop-

ment, India’s healthcare system is at the rear as compared to other emerging
economies. According to the latest UN data, the approximate population of
India is 1,350,438,09841 and it is continuously rising at an alarming rate with
enormous diversity. With its diversity it is also bringing an enormous challenge
to the healthcare delivery system. This brings into sharp focus the WHO theme
of 2018, which calls for “Universal Health Coverage- Everyone, Everywhere.”42
There are certain crucial challenges which need to be tackled to provide
healthcare to everyone everywhere particularly in the rural India.

India with 1.37 billion (expected data)43 billion people has made vital
improvement, as average life expectancy has increased to 65 years for male

38
Indian Constitution, Art. 47.
39
The National Human Rights Commission of India, available at <http://nhrc.nic.in/sites/default/
files/NHRCindia.pdf> last accessed on July 25, 2019.
40
The National Human Rights Commission of India, Annual Report 2015-16, (June 17, 2019,
10.30 p.m.), <http://nhrc.nic.in/sites/default/files/NHRC_AR_EN_2015-2016_0.pdf>.
41
Population of India 2019, India Population 2019, Most Populated States (June 19, 2019, 11.40
p.m.), <http://www.indiapopulation2019.in/>.
42
Arvind Kasthuri, “Challenges to Healthcare in India - The Five A’s”, Indian J. Community
Med., 141-143 (2018).
43
India Population, “A Quick Analysis of India Population 2019”, (June 19, 2019, 11.45 p.m.),
<http://www.indiapopulation2019.in/last visited on 15 Jan., 2019>.
144  RELEVANCE OF HEALTH ECONOMICS, LAW & POLICY FOR ECONOMIC GROWTH

and female. The polio eradication programme although seems to be success-

ful, a larger section of India’s population is still struggling and fighting with
other types of chronic diseases and poor rural population is facing lot of dif-
ficulties in the prevention and treatment of such non-communicable diseases.
It is improved healthcare facility only which can enhance labour productivity
resulting in the increase incomes of household, ultimately breaking the vicious
cycle of poverty.

Currently, the Indian healthcare system presents a complementary situation

as high tech medical facilities are available in urban areas on the other end the
rural areas are trying desperately to have the same. With the dynamic change
in the field, the gaps are likely to widen more in the future. Furthermore, there
is a widespread perception that “healthcare has not been a political priority in
India” at the same time it can be noticed that majority of the population lacks
health awareness. People do not pay attention to their health until and unless
they are diagnosed with some serious health issues. The reasons are very clear
as low educational status, poor practical literacy, and low priority for health in
the population are prevalent among others. A review article on aging and gen-
eral decline in health found that 20.3% of participants were aware of common
causes of prevalent illness and their prevention but showed apathy towards it.44
A more common reason could be lack of health literacy. However, it is encour-
aging that general awareness related to health is showing promising results in
states like Bihar and Jharkhand demonstrating improved levels of responsive-
ness and perceptions about maternal health. The behavioral change is because
of effective interventions on adolescent reproductive health levels of girls.45
Indeed, this could be a very encouraging and inspiring condition and at the
same time a very clear indication that continuous efforts are needed to enhance
awareness levels among all class and segments of the population which have
shown promising results. Therefore, government should implement policies to
generate awareness of healthy life, by making mandatory the health education
in the school and university levels.

While the National (Rural) Health Mission has done much to improve
the infrastructure in the Indian Government healthcare system, still a lot of
the primary health centers (PHCs) lack basic infrastructural facilities such
as proper building beds, regular supply of electricity, wards, toilets, drink-
ing water facility as well as clean labor rooms for delivery. Lack of qualified
doctors is another big discouragement to the health-seeking behavior of the

44
Arvind Kasthuri, “Challenges to Healthcare in India - The Five A’s”, Indian J. Community
Med., 141-143 (2018).
45
S.K. Banerjee, K.L. Andersen, J. Warvadekar, et al., “Effectiveness of a Behavior Change
Communication Intervention to Improve Knowledge and Perceptions About Abortion in
Bihar and Jharkhand, India”, 142-151 (International Perspectives on Sexual and Reproductive
Health, 39, 2013).
 CNLU LAW JOURNAL–2020-21  145

population. Therefore, for the successful implementation of law and policy the
basic facilities of the healthcare should be made compulsory.

At this juncture it is very important to accept and recognize that protect-

ing human rights is not only constitutional value but also a constitutional goal.
Under the obligation of DPSP of the Indian Constitution, the social services are
the responsibility of states. Ironically, the State has very limited revenue which
creates high degree of fiscal imbalance for the implementation of such ser-
vices. Hence, the budget allocation for the states for the said sector should be
increased. The state should also endorse traditional knowledge base and expan-
sion and promotions of institutions to carry a national heritage by promoting
Ayurveda, Homeopathy and Siddha Medicine which will not only enhance the
periphery of prevention and cure of diseases, but will also increase the employ-
ment opportunities.
 INSANITY AS A DEFENSE
—Shivanshu Bhardwaj*

Abstract — At times, cinematography triggers curiosity in your

brain to an extent that you want to study more about the same.
‘Shutter Island’ was one such movie which instigated me to research
on the defense of insanity, as to how exactly does this defense operates
and how things like institutionalization effects the probability of the
defense being taken. Through this paper I attempt to explore more into
these issues and quench the curiosity of myself and the readers.

To elaborate the scheme, we shall look into the idea of what kind of
test is used for the determination of liability and in what all ways
and qua what all persons can we apply the well-known standards of
objectivity and subjectivity. We shall along with the above premise
explore as to how the entry of expert witnesses changed the way the
defense was treated thereto. We shall also look how the law exists in
India and to what extent has it been influenced by the English law. The
paper’s primary focus will be on the idea of how the defense can be
misused and is there a possibility that the same is availed in falsely by
an accused.

Method of the research is descriptive and methodology is doctrinal.

Doctrinal writings in relation to the subject has been analysed in the
course of this research paper. Reliance has been placed on judicial
precedents, official government reports and other reliable sources.

*
Associate, Cyril Amarchand Mangaldas.
 CNLU LAW JOURNAL–2020-21  147

I. INTRODUCTION

The acceptance of the plea of insanity has been an informal practice since
many years,1 the treatment of the accused was not necessarily in a specific
manner but each of the accused were treated based on her or his personal
circumstances.2 In this context of informal nature of insanity the first known
trial of insanity came up in England – that of Edward Arnold (in 1724).3 The
accused had shot a member of the aristocracy and later pleaded that he was not
aware about what he was doing.4 The evidence adduced by the defense were
the statements of the family of the accused and those of the members of the
local community, the same indicated that the accused gave way to ‘irrational
antics and minor acts of violence and damage’, however, the prosecution evi-
dence suggested that the accused was capable of forming a steady design.5 The
jury direction in the said case read as follows:

“When a man is guilty of a great offence, it must be very

plain and clear before a man is allowed such an exemp-
tion [i.e. the one relating to insanity]…it must be a man that
is totally deprived of his understanding and memory, and
[should] not know what he is doing, no more than an infant,
than a brute, or a wild beast [in order to avoid punishment].”6

The above set out what is often referred to as the ‘wild beast’ test,7 we can
see that this is more of an informal standard than a precise determinant of the
existence or lack of intent.8 The general and otherwise conduct of the accused
was taken as a significant factor, the exculpation was not based so much so on
the internal mental processes but this behavior of the accused that was said to
constitute ‘mad condition’.9 It is said that in this era, mental capacity had cul-
tural and social manifestations and meaning,10 and so ordinary people who did
not possess any specialist knowledge were regarded as competent enough to
detect and evaluate insanity.11 Now let us dwell into specific objectives which
have been stated above.

1
Nigel Walker, Crime and Insanity in England, 19 (1968).
2
Id., at 42.
3
R. v. Edward Arnold, 16 St Tr 695 (Surrey Assizes, 1724).
4
Ibid.
5
R. Moran, “The Origin of Insanity as a Special Verdict: The Trial for Treason of James
Hadfield”, 19(3), Law and Society Review, 487 (1985).
6
Nigel Walker, Crime and Insanity in England, 56 (1968).
7
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 108 (2012).
8
J.P. Eigen, “Delusion’s Odyssey: Charting the Course of Victorian Forensic Psychiatry”, 27(5),
International Journal of Law and Psychiatry 395 (2004).
9
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 108 (2012).
10
Ibid.
11
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 108 (2012).
148  INSANITY AS A DEFENSE

II. THE NATURE OF TEST FOR CULPABILITY VIS-À-

VIS THE STATUS OF EXPERT MEDICAL EVIDENCE

The two aspects i.e. the test which is to be applied to determine the liability
of the accused, and the consideration of expert medical evidence are interde-
pendent onto each other and thus it is pertinent to consider the two of them
together, and before considering the specific contours of both of these issues it
is important to look into the evolution of both the aspects.

It is well known, most of the offences (murder in particular) mainly is con-

stitutive of two constituents – actus reus and mens rea – the accused while
advocating his exculpation off the offence, argues (this can be done in person
or through a counsel, however in the former case adverse inference may be
drawn qua the accused about which I shall discuss in the later part of this
paper) that he committed the act without necessary mens rea, as he was not
capable enough of forming one.12 It should be mentioned here that during this
‘era’, no differential treatment was meted out to the matters of automatism and
they were considered as the cases of insanity itself.13 An illustration of this can
be the trial of William Walker, where in-effect the accused pleaded automatism
but was found not guilty based on insanity.14 In that case the accused stabbed
his wife, without there being any evidence of discord between them, the wit-
nesses testified that they did not think that Walter was mad.15 They said that
something extraordinary must have happened with the accused to disturb him
off his orderly state.16

The case that prompted separate fields for automatism and insanity was the
trial of James Hadfield.17 The accused had attempted to shoot King George
III, believing that he would be able to save the world by doing that.18 It was
argued in his defense that instead of a total deprivation of understanding, delu-
sion is the necessary companion of insanity.19 He was examined by a medical
practitioner, who said that every time he was posed with questions relating to
lunacy, he acted irrationally.20 Hadfield was acquitted since he was held to be
under the influence of insanity when he committed the offence.21 The uncer-
tainties of the above matter lead the Parliament to pass the Criminal Lunatics
Act of 1800, which was one of the first known separation between the concept
12
D. Rabin, Identity, Crime and Legal Responsibility in Eighteenth-Century England, 2 (2004).
13
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 110 (2012).
14
OBP, William Walker, 21 April, 1784 (t17840421–13).
15
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 110 (2012).
16
Ibid.
17
R. v. James Hadfield, (1800) 27 St Tr 1281.
18
Ibid.
19
Nigel Walker, Crime and Insanity in England, 77 (1968).
20
Id., at 76.
21
R. Moran, “The Origin of Insanity as a Special Verdict: The Trial for Treason of James
Hadfield”, 19(3), Law and Society Review, 510 (1985).
 CNLU LAW JOURNAL–2020-21  149

of insanity and automatism.22 After the aforementioned Act, it was no longer

open to the jury to simply acquit the insane defendant, but they were ‘required
to specially find if the accused was insane at the time of the commission’.23
The Act also brought in the aspect of detention of the insane defendants, court
now had the power to keep them in custody.24 This aspect of the probability of
indefinite detention proved an enduring feature for the exculpatory insanity.25
The above reflected a particular attitude towards insane individuals – that they
were dangerous26 – and thus should be institutionalized. This can be further
illustrated with what Lord Diplock said in Sullivan – that ‘the purpose of the
legislation relating to the defense of insanity, ever since its origin in 1800, has
been to protect society against recurrence of the dangerous conduct’.27

The reason that it said above that the aforementioned Act of 1800 had an
enduring effect on the pleas of insanity is that, prior to this the accused if suc-
cessfully pleaded the defense of insanity was left scot-free and he entered back
in the society and so there was an incentive for people who were not actu-
ally insane to maneuver their way around the same, as they can comfortably
go back to their homes.28 However, after the passage of the Act of 1800 since
one would be institutionalized and not just sent back home, the notorious lot
abstained from pleading this defense that frequently.29

Another effect that came along the abovementioned special verdicts was the
rise of psychiatric professionals, which embodied expert know-how qua the
knowledge of madness or insanity.30 These experts conceptualized the notion
of insanity as denoted, ‘primarily an alienation of feelings, of natural senti-
ments’, and ‘spoke to the impulsive nature of the will, which drove the afflicted
person into motiveless, revolting activity’.31 The significance of the abovemen-
tioned professions increased from the trial of Daniel M’Naghten (the trial is
also referred to as the Mc’Naughten trial by some, but for the sake of brevity
I will be stating it as M’Naghten in this Paper). We shall now briefly discuss
the same.32 Apart from the importance of expert evidence which was laid in
this case, it is also important to discuss this since later the law globally was
inspired from this.
22
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 111 (2012).
23
Nigel Walker, Crime and Insanity in England, 78 (1968).
24
R. Moran, “The Origin of Insanity as a Special Verdict: The Trial for Treason of James
Hadfield”, 19(3), Law and Society Review, 515 (1985).
25
Id., at 519.
26
R. Moran, “The Punitive Uses of the Insanity Defense: The Trial for Treason of Edward
Oxford (1840)”, 9, International Journal for Law and Psychiatry 189 (1986).
27
R. v. Sullivan, 1984 AC 156, 172.
28
Supra note 24.
29
Ibid.
30
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 113 (2012).
31
Joel Peter Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court, 78–80
(1995).
32
R. v. M’Naghten, (1843) 10 Cl & F 200 : 8 ER 718.
150  INSANITY AS A DEFENSE

In 1843, in an attempt to shoot the prime minister, the accused shot his pri-
vate secretary, the Solicitor General argued that the accused cannot claim the
benefit of the plea of insanity if he had the degree of intellect which permitted
him and made him capable of distinguishing between right and wrong.33 The
defense argued that the accused be not made liable since he was under ‘fierce
and fearful delusion’ at the time of killing and thus was unable to control his
actions.34 The jury found the accused not guilty by reason of insanity – this
outcome was highly controversial and the M’Naghten Rules were thus framed
in response to this.35 Let us in brief discuss the standards that were set.

The rules majorly are constituted by three tests, first of the three states that
the brain should cause such an effect on the person that the accused should not
know the nature and quality of his act or that the act is wrong.36 This test is
referred to as ‘defect of reason’ and has been interpreted to denote cognitive
defect, and cannot ‘simply be brutish stupidity’.37 The second test is referred
to as ‘disease of mind’, this test specifically triggered the entry of experts into
the arena.38 Another aspect that got its share of consideration with this test was
the idea of internal as opposed to external causes (in case of external, instead
of causes we better know them as characteristics).39 It has been held that a ‘dis-
ease of mind’ can be ‘functional or organic, permanent or intermittent’, but it
will be relevant for consideration as long as it pertains to the time of the act of
the defendant.40 The third test further qualified the way defect of reason was
to be read and further qualified that this defects be considered when it affects
his or her knowledge with respect to the nature of the act or that the same was
wrong.41 The rules also refer to the fact of presumption of sanity and that all
the jurors are to be told that every man is presumed to be that unless the con-
trary is proved.42

It has been argued that with the rise of the expert knowledge about psychia-
try, the religious views of madness declined and paved the way for ‘more secu-
lar mappings of the same’.43 However it is pertinent to consider certain aspects
of lay knowledge as well, some of which are even relevant today.

33
Ibid.
34
Richard Moran, Knowing Right From Wrong: The Insanity Defense of Daniel McNaughtan, 1
(1981).
35
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 115 (2012).
36
Id., at 118.
37
R. v. Kemp, (1957) 1 QB 399.
38
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 119 (2012).
39
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 118 (2012).
40
Supra note 37.
41
Nigel Walker, Crime and Insanity in England, 101 (1968).
42
Richard Moran, Knowing Right from Wrong: The Insanity Defense of Daniel McNaughtan,
173 (1981).
43
Ibid.
 CNLU LAW JOURNAL–2020-21  151

The move from peine forte et dure to trial by jury44, gave rise to the era
of self-informed jury – with the jurors coming from the community of the
accused and were thus expected to bring along both knowledge of fact and that
of the accused.45 Thus we can see that for adjudication what is being looked
at is a person’s standing in the community from which he comes.46 Also, this
gave rise to an understanding that idea behind human actions can be estab-
lished by the testimony of independent persons who analyze this in the con-
text of broader cultural acceptability.47 So insanity or rather madness was taken
to be ‘entrenched in the common cultural consciousness’ – it was considered
to be part of common knowledge.48 In other words no special knowledge was
considered necessary and understanding of the lay persons were considered.
Some have even gone to the extent of saying that ‘the mad and the sad were
extremely familiar figures in the early modern physical and mental land-
scape’.49 When over the period of time the distinction between jurors and wit-
nesses became strict, role of both of these groups was separated out, but both
were considered competent to assess madness.50

In this earlier era the plea frequency of the insanity plea being taken was
higher (as compared to the contemporary times), and the chances of the same
being allowed were also higher. In the trial of Philip Parker, the evidence
showed that the prisoner showed ‘all the symptoms of lunacy upon him’, the
jury then concluded that the killing was ‘purely the effect of distractions’
and so he was acquitted.51 Likewise during the trial of Alice Hall, there
was evidence that ‘for a considerable time Distracted, and fancied she was
Damned, that she was a Spirit, and not a Woman; and sometimes was so very
Outrageous that she was chained in her Bed’ seems to have been behind the
jury’s decision to acquit her on the basis that she was ‘under great disorder of
mind when she committed the act’.52 However not all pleas of insanity were
successful, one such example is the trial of Earl Ferrers, the accused pleaded
that he suffered from sporadic insanity at the time of killing and he did not
know what he was doing, but to no avail, he was convicted and executed.53
Thus it has been rightly said that ‘the outward truths and signs of an individual
was encoded his inner realities’.54

44
H.L. Ho, “The Legitimacy of Medieval Proof”, 19(2), Journal of Law and Religion, 257
(2003-04).
45
D. Kerlman, “Was the Jury Ever Self-Informing?”, Manchester University Press, 60 (2003).
46
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 140 (2012).
47
Ibid.
48
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 141 (2012).
49
Ibid.
50
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 141 (2012).
51
OBP, R. v. Philip Parker, 8 December, 1708 (t17081208–34).
52
OBP, R. v. Alice Hall, 17 January, 1709 (t17090117–19).
53
R. v. Ferrers, (1760) 19 St Tr 885.
54
Supra note 50.
152  INSANITY AS A DEFENSE

It should be clarified here that the ‘outward truth’ refers to the conduct of
the individual, in other words a person’s general demeanor was to determined
whether the individual would be able to avoid punishment.55 However one
should not read in here that while considering the outward signs, the jurors
were indifferent to the internal causes of incapacity that may have existed.56
For instance in the trial of Thomas Nash, the court considered the fact of the
accused sustaining injuries during the war which may have impaired his think-
ing and lead him to behave unusually,57 thus considering the internal causes
of incapacity. We shall now discuss how the evidence or depositions of the
experts changed the perception and how were they considered.

Then the globe experienced organization of knowledge vide the scientific

revolution,58 which according to some lead to the ‘factualisation’ of mens rea
and gave rise to subjective understanding of law for criminal liability.59 The set
of individuals comprising of surgeons, medical officers, who came up under-
neath the abovementioned development were referred to as ‘alienists’.60 Till
the time the M’Naughten matter came up, the presence of these alienists in
the courtrooms for ‘madness’ related matters had become very common.61 The
depositions of the people of community and the relatives of the accused con-
tinued to be taken but the analysis and understanding of these by the experts
became more important.62 Some think that this involvement of experts was
purely a result of the development that happened in the context of knowledge
and because of the initiatives by the alienists,63 however there are others who
believe that such involvement was not possible without a passive consent of the
judiciary itself.64 In their clinical considerations, factors such as domestic vio-
lence, poverty etc. were accounted, some viewed this as retaining the moraliza-
tion of the concept, rather than purely medicalizing it.65

55
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 142 (2012).
56
Id., at 143.
57
OBP, R. v. Thomas Nash, 12 April, 1727 (t17270412–21).
58
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 144 (2012).
59
N. Lacey, “Responsibility and Modernity in Criminal Law”, 268 (2001). Note: The term “fac-
tualisation” has been used to connote the organization or grouping of knowledge that hap-
pened to come up with the knowledge which would establish certain touch stones for the
analysis of demeanor and thus bringing in the element of subjectivity.
60
Ibid. The significance of the term alien here was that these people came up to determine the
mental state of another” (which in Latin is alienu) individual.
61
M.D. Dubber and L. Farmer (eds.), Modern Histories of Crime and Punishment, Stanford
University Press,77 (2007).
62
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 146 (2012).
63
R. Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials, Edinburgh
University Press, 3 (1981).
64
J.P. Eigen and G. Andoll, “From Mad-Doctor to Forensic Witness: The Evolution of Early
English Court Psychiatry”, International Journal of Law and Psychiatry, 159 (1986).
65
OBP, R. v. John Francis, 26 November, 1849 (t18491126–41). See, Arlie Loughnan, Manifest
Madness: Mental Incapacity in the Criminal Law, 147 (2012).
 CNLU LAW JOURNAL–2020-21  153

The way in which the things worked were through examination and
cross-examination of the expert witnesses. They were asked questions regard-
ing relationship between insane conditions and the offence alleged, and the
causes of insanity etc, which was to bring in more certainty.66 Some ques-
tions also related to the generalized queries about the mental condition, such
as symptoms of insanity and how to look for its presence in an individual.67
As the appearance of these witnesses increased in the courtrooms, the distinc-
tion between a fact and an opinion hardened, which later became the basis of
formalized evidentiary rules relating to expert depositions.68 It is important to
mention here that expert knowledge about insanity emerged off the beliefs that
were already entrenched in the common culture, and so one could observe a
significant overlap in-between the two.69 This linkage may have weakened
overtime but the two never really became completely segregated of each
other.70

The importance of asylum should also be stated here, since they gave an
organizational condition for the development of the knowledge of insanity.71
Moreover they also operated as places where accused who was announced
not guilty because of insanity could be put until the individual recovers (if,
of-course, there is a scope for the same),72 later on captivity at these asy-
lums or hospitals was mandated for people charged with capital offences.73 It
is pertinent to mention here that the development of these institutions had an
impact on the number of insanity plea that were being taken (the reason for
which I have already stated above). It is pertinent to be mentioned here that
In England, the Criminal Procedure (Insanity and Unfitness to Plead) Act of
1991 has mandated the consideration of the expert witnesses and jury cannot
find insanity without the consideration of the same.74 Also, the rationale behind
expert evidence is to take care of the matters that lie beyond the capacity of
the jury to evaluate.75

Discussion:

Through the above deliberation we can now draw certain inferences. It can
be noted that though there has been mentioning of the separation between the

66
S. Landsman, “One Hundred Tears of Rectitude: Medical Witnesses at the Old Bailey”, 16(3),
Law and History Review, 445 (1998).
67
OBP, R. v. John Francis, 26 November, 1849 (t18491126–41).
68
M. Redmayne, Expert Evidence and Criminal Justice, 66 (2001).
69
Ibid.
70
Martin Wiener, Reconstructing the Criminal, 123 (1994).
71
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 154 (2012).
72
Walker, Crime and Insanity in England, 204 (1968).
73
M.J. Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England,
Cambridge University Press, 281 (2004).
74
S. 1(1) of Criminal Procedure (Insanity and Unfitness to Plead) Act of 1991.
75
Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, 157 (2012).
154  INSANITY AS A DEFENSE

idea of automatism and insanity, it is important for the sake of clarity to state
what in-fact I find to be the distinction. Automatism is the more of a tempo-
rary occurrence in an individual where an otherwise mentally sane person
experiences slots of insanity, and in the defense it is pleaded that at the time of
the commission of the offence the accused was acting in the said slot of insan-
ity.76 In nutshell we can say that the difference is – being insane or under the
influence of insanity.77

As far as the idea of objective and subjective test consideration is con-

cerned the same was effected by the entry of expert witnesses. As we saw in
the above deliberation, before the entry of the these experts, the depositions of
relatives and the acquaintances of the accused were considered, and hence the
determination was more individual based and the depositions were then ana-
lyzed by the jurors or the judge, thus we had something like pseudo-subjec-
tivity qua the judge, which sometimes is also referred to as judicial discretion
(it should be kept in mind that though the conduct of the individual was inde-
pendently considered, there still existed touchstones of determination and thus
we cannot say that we had subjectivity in a strict sense of the term qua the
accused). Then, with the advent of experts the existent knowledge was organ-
ized together and thus the jurors and judges were now being guided by certain
objective standards which were put forth by these experts, and thus we can
say that the discretion that hitherto vested for determination of liability on the
adjudicators now weakened, as they were informed with regards to the stand-
ards that should be considered to evaluate the liability.78

III. INDIA’S TAKE

Having discussed the doctrinal aspect of insanity qua the British jurisdic-
tion, we shall now look into how things are being viewed at home. It is a well
known fact that most of the Indian laws are inspired from English common
law and the law relating to insanity is no exception, and both the courts and
the legislature have taken cue from the same.79

The Supreme Court of India has recognized that not only is a person’s con-
duct at the time of the offence relevant but also his conduct before and after
the commission of offense should be considered for the determination of lia-
bility.80 The court in this case held that since the accused scaled the wall of
his mother-in-law’s house with the help of a torch and then killed her when
she was sleeping, showed that crime was not committed in a sudden burst of

76
Supra note 23.
77
Supra note 28.
78
Supra note 32.
79
Sir George Rankin, Background to Indian Law, 204 (1946).
80
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 : (1964) 7 SCR 361.
 CNLU LAW JOURNAL–2020-21  155

insanity but was premeditated and planned – as a result, the court convicted
the accused.81

The court has further held that if it can be shown that the accused knew
what he was doing then he may not be exculpated, so when a husband thinking
his wife was not faithful to me killed her by pouring nitric acid on her was
convicted of murder, as he was aware that as a result of his conduct his wife
may die or get seriously (gravely) injured.82 Courts have considered the gen-
eral conduct of the accused in the past and even his history (both family and
medical) for the determination of liability.83 So when the accused even after
cooling off of a small quarrel, suddenly beheaded the victim, he was given the
advantage of the defense of insanity – this was because evidence was produced
to the effect that the accused has fits of lunacy where he thinks that a tiger is
coming to eat him up and that he has sleepless nights and even when he slept,
he would suddenly wake up and run to save himself from the tiger – on the
day of offence the offence the accused took the victim to be the tiger.84

In an interesting development the apex court had held that even after it is
shown that accused was suffering from some ‘mental instability’ both before
and after the commission of the offence, it is still to be shown that at the time
of the commission of the offence the accused was not aware of the nature of
his act – the plea was rejected in this case.85 In another case, an accused had
history of mental disturbance, however his conduct subsequent to the offense
was such that his plea could not be accepted – the accused tried to hide the
weapon, bolted the door and later tried to abscond.86 The above rulings will
make better sense if read along with another order of the Supreme Court
in which they have categorically said that what is to be proven is not medi-
cal insanity but legal insanity at the time of the commission of the offence in
order to claim the benefit of the defense.87

In India also we presume the accused to be a person of sane mental ability88

(like in England, as we discussed above in the context of M’Naghten rules),
and absence of any exonerating circumstances.89 It has been further held very
clearly that first the prosecution is to establish the case beyond reasonable
doubt and then the if he is successful then the onus is on the defense to

81
State of M.P. v. Ahmadulla, AIR 1961 SC 998 : (1961) 3 SCR 583.
82
Hazara Singh v. State, 1957 SCC OnLine P&H 99 : 1958 Cri LJ 555.
83
Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748.
84
Tukappa Tamanna Lingardi v. State of Maharashtra, 1990 SCC OnLine Bom 443 : 1991 Cri
LJ 2375.
85
Sudhakaran v. State of Kerala, (2010) 10 SCC 582.
86
Jai Lal v. Delhi Admn., AIR 1969 SC 15.
87
Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495. Also See, Dahyabhai
Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 : (1964) 7 SCR 361.
88
Bapu v. State of Rajasthan, (2007) 8 SCC 66.
89
S. 105, The Indian Evidence Act of 1872.
156  INSANITY AS A DEFENSE

create a reasonable doubt in the mind of the court qua the mental capacity of
the accused to form mens rea, if the defense discharges this burden then the
accused acquitted.90

Discussion:

We can infer from the above discussion that Indian courts have gone more
into the practical aspect of the issues and laid down standards which makes the
concept more understandable, if compared to English courts (meaning thereby
that even Indian courts are not absolutely off the mark and we shall discuss
why subsequently) who have given out more of a normative understanding of
the concept.91 It should be mentioned here that the cue for the defenses was
taken from the English courts itself but the way they applied it may pitch in a
better picture, one of the reason for this is the clear linkages of the principles
to the facts.92 One aspect that should be highlighted here is that there is not
provision or direction mutates mutandis to the Act of 1800 in England.93

IV. CONCLUSION AND ANALYSIS

I had started the research with the perception that plea of insanity should be
very easy to take, at the same time very difficult to prove or question, since,
how would one look into the mind of a person who himself starts to act in a
peculiar fashion. But as I explored, I could figure out that things are not as
basic and simple as one would think.94 We have gathered some idea about the
defense of insanity through the above discussion, we shall now look into some
of the aforementioned ideas.

One aspect that altered the frequency of the plea of insanity, was result of
the Lunatics Act of 1800, under which institutionalization was mandated.95 We
have already discussed as to why this lead to decrease in the people pleading
the defense of insanity.96 However certain things should still be kept in mind,
we saw that institutionalization is what prevents an individual from taking a
false plea. However it is very well possible that an individual takes the plea
(maliciously that is) and then later after he is institutionalized, spends some
time in the asylum and then says that he has become sane now, we need to
make some arrangement for these kinds of notorious elements as well.

90
Bhikari v. State of U.P., AIR 1966 SC 1 : (1965) 3 SCR 194.
91
Supra note 33.
92
Supra note 84, 85.
93
Supra note 23.
94
Supra note 32.
95
Supra note 24.
96
Supra note 28.
 CNLU LAW JOURNAL–2020-21  157

Another point that is pertinent to be highlighted here is about the consid-

eration of both the expert and lay evidences.97 The adjudicator should always
keep in mind that the knowledge that has been organized by the expert about
the behavior of any insane person has been gathered off the society and thus
should keep himself open to some considerations that may arise to which
experts may deny existence of insanity but ends of justice demand the grant of
the same. A very important aspect that should be kept in mind is that, things
may be done in the interest of justice but at the same time things should not
become completely discretionary qua the judge and it should be taken care that
things do not go back to pseudo-subjectivity of the judge.98

Some concerns have been raised against the M’Naughten understand-

ing of insanity, that, it is too narrow a concept to cover certain aspects like
sudden emotional rush or rapid spurt of feelings.99 People who argue in these
lines fail to understand that a normal person having necessary civic sense will
not go around killing people or causing them harm. An individual goes to
the extent of killing another only when there is such emotional rush or rapid
spurt of feelings (here we are not considering the category of serial killers or
cold-blood murderers), and thus if we do include such categories then virtu-
ally every action may get covered and people in the society will not have any
incentive to control themselves and act in a civic and mature manner.

An anecdote that is often told while explaining the inability of a person to

know the nature of one’s conduct is – when the accused was asked as to why
did he cut the head of man sleeping on the pavement, he said, “it would be
great fun to see him looking for it when he woke up”.100 In closing I would like
to say that only those individual should be given the benefit of the defense of
insanity who are, if not exactly like the person in the anecdote, his inability
can be somewhat related to him.

97
Supra note 70.
98
Supra note 78.
99
Katherine Ramsland, The Criminal Mind, 137 (2002).
100
Y.V. Chandrachud, Ratanlal and Dhirajlal’s – The Indian Penal Code, 96 (2001).
 LEGAL RECOGNITION OF SAME-
SEX MARRIAGE RIGHTS IN INDIA
—Shivam Garg*

Abstract — Following the recent decision of the Supreme Court

of India in Navtej Singh Johar v. Union of India (hereinafter
referred as Navtej case) which decriminalizes ‘consensual sexual
intercourse’ between the persons of same gender by reading down
Section 377 of the Indian Penal Code, majority of the discussion
have centred around the most effective ways to legally recognize the
homosexual relationships like those of heterosexual relationships.
This paper argues that to completely abolish the discrimination faced
by same-sex couples, their relationships are required to be legally
recognized. Mere decriminalizing consensual sexual intercourse
between persons of same gender is not sufficient to ensure them social
equality as that of heterosexual couples. In this paper the author,
logically and legally, deals with all the objections against the legal
recognition of homosexual unions which are often misguided in the
name of tradition, culture and religion. In India, laws governing
marriage only recognizes heterosexual unions, depriving same-sex
couples the benefits and socio-legal recognition which the heterosexual
couples enjoys. In this paper the author examines various ways by
which homosexual unions can be legally recognized. One of such ways
is the route of recognition through ‘civil partnerships’ which has been
adopted by various countries should be followed in India, but this route
seems to be an unsatisfactory intermediate process for granting such
recognition. The author is of the view that it is not feasible to seek
amendments in personal laws in order to grant legal recognition to such
unions which would invoke strong opposition from the majoritarian
society considering it as unreasonable interference in their religion.
Therefore, the most satisfactory ways for such recognition seems

*
B.A. LL.B (IIIrd YEAR), Faculty of Law, Aligarh Muslim University.
 CNLU LAW JOURNAL–2020-21  159

to be either the amendment or judicial reading down of the Special

Marriage Act, 1954 or to enact a new legislation governing civil rights
of homosexual couples. The judgment in Navtej Johar case is only the
first step in this way of ensuring justice to same-sex couples; many
bold steps are still awaited. Since the hurdle in the way of legalizing
same-sex marriage is removed by the Supreme Court, now it is for
the Government to legally recognize the same-sex marriage in order
to fulfil its duties to ensure fundamental rights and freedoms to all
persons.

I. INTRODUCTION

India’s LGBT community on 6th September, 2018 won its battle to decrimi-
nalize “consensual sex” between persons of same gender. The Supreme Court
in Navtej Singh Johar v. Union of India1, one of its historic judgments, struck
down Section 377 of the Indian Penal Code which criminalizes carnal inter-
course against the order of nature excluding consensual carnal intercourse
from its ambit and thus decriminalizes homosexuality. While deciding upon
the rights of transgender community, the Supreme Court upon the request of
Central Government confined itself only to determine the constitutionality of
Section 377 of Indian Penal Code and left the question of acknowledging civil
rights of the LGBT community untouched. When one lawyer for the petition-
ers veered into a broader discussion, saying that “what happens in a bedroom
is not the end-all, be-all,” Chief Justice Misra swiftly steered him back to the
constitutionality of Section 377.

“I think you are questioning whether they can marry,” the

judge said. “We’re plunging into the sea.”2

Further, Chief Justice and J.A.M. Khanwilkar in their judgment while rec-
ognizing the right to the union of LGBT community under Article 21 of the
Constitution expressed “when we say union, we do not mean the union of mar-
riage, though marriage is a union”. CJI clarifies that the scope of this hearing
does not cover marriage, adoption, maintenance, etc. He says that whether civil
rights would follow would be decided in another lis. Therefore, legal status of
same-sex marriage is now an open question. It is a battle won, but the war
to get social equality as that of heterosexual couples’s remains. This triumph
is partially secured and it will gather real meaning only when the community

1
(2018) 10 SCC 1, available at: <https://www.refworld.org/cases,IND_SC,5b9639944.html>
(Last visited on 28 Apr. 2019). (hereinafter “Navtej”).
2
Kai Schultz, “India Gay-Sex Ruling: What to Expect”, The New York Times Sep. 5, 2018.
160  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

secures the civil rights such as right to marriage, inheritance, guardianship,

adoption etc and the benefits that arise after marriage.

Even in the contemporary society, the institution of marriage is generally

regarded as extending only to heterosexual relationship. But as society is grad-
ually becoming more permissive, acceptance of homosexual marriage has
recently been forthcoming under various jurisdictions. However, certain juris-
dictions retained statutory provisions only to permit heterosexual marriages.
Marriage laws in India only recognizes heterosexual unions, depriving same
sex couples of the benefits as well as social and legal recognition that married
person enjoys. Same-sex marriages are not legally recognized in India and as
a result, homosexual partners are denied many of the legal and economic priv-
ileges automatically bestowed by marital status. Though, the initial objective
of decriminalizing private consensual sex has been achieved, the demand for
recognition of their marriage rights is increasing. Mere decriminalizing con-
sensual sexual acts will not end the discrimination faced by persons who are
engaged in long-term same-sex union, on par with heterosexual marriages.
Certain legal benefits such as succession, maintenance, pension rights, employ-
ment benefits under Employees’ Provident Funds Scheme, 1952 and Workmen’s
Compensation Act, 1923 and health benefits that are available to married cou-
ples are not available to same-sex couples.

Merely decriminalizing the same-sex acts is not sufficient, legal recognition

of same-sex relationships as heterosexual unions is equally necessary. In this
regard the observation of Justice Kennedy of U.S. Supreme Court in Obergefell
v. Hodges3 is worth noting. He observed that though Lawrence invalidated laws
that made same-sex intimacy a criminal act but it has only confirmed a dimen-
sion of freedom and does not achieve the full promise of liberty and the full
promise will only be achieved by legalizing theirs union as that of heterosexual
unions.4 It can only be ensured when the homosexual couples will be provided
equal rights as that of heterosexual couples.

The homosexual relationships and heterosexual relationships are hardly dif-

fered in their aspects whether psychosocial or social and the same-sex couples
as well as their children are likely to be benefitted in various ways from a legal
recognition of the relationships as marriage.5 Now the question arises “how
can it be done? What would be the best possible way to legally recognize the
same-sex marriages?” To answer these questions the author in this paper has
evaluated various ways to legally recognize the same-sex relationships in India.

3
2015 SCC OnLine US SC 6 : 192 L Ed 2d 609 : 576 US _ (2015), Director, Ohio Department
of Health, et al. (hereinafter “Obergefell”).
4
Id. at 12.
5
George M. Herek, “Legal Recognition of Same-Sex Unions in United States: A Social Science
Perspective”, 61(6) Amer. Psycho. 607-621(2006). (hereinafter “George M.”).
 CNLU LAW JOURNAL–2020-21  161

Legal recognition of such relations in India is not merely a political or a

legal question but also the religious debates revolve around it. Though, India
is witnessing a revolution from a orthodox society towards a society encourag-
ing fundamental values, the opposition in the name of tradition, culture, reli-
gion to a liberal legislation has not yet at all vanished. Marriage in India is a
matter of personal laws, deeply enlaced with the religious beliefs of the people
therefore, any change in their personal laws may be perceived by the faction of
religious communities as attack on their beliefs. Also, since homosexuality was
illegal till the time of the judgment in Navtej Singh Johar case6, the Special
Marriage Act, 1954, which was enacted to recognize special marriages irre-
spective of religion also provides for the heterosexual marriages only. Further,
if Parliament provide marriage rights to LGBTQ community, it will face a
plethora of challenges relating to adoption, maintenance, custody rights and
inheritance. One example of the same is The Hindu Succession Act, which pro-
vides that widow/widower will be the legal heir of man/woman dying intestate.
Therefore, what should be the right approach to deal with same sex marriages,
the issues are quite vast and complex.

II. SAME-SEX MARRIAGE AND

NAVTEJ SINGH JOHAR CASE

The main focus of this paper is not to deal with Navtej Singh Johar case7,
but certain aspects of this judgment are relevant to the present matter, therefore
required to be dealt with.

On the question of recognition of same-sex partnerships and marriage

Chandrachud J. is clear that the direction of comparative law leads to the con-
clusion that, “the law cannot discriminate against same-sex relationships. It
must also take positive steps to achieve equal protection”.8 It is pertinent to
note that the bench presiding over the matter did not confine its observations to
the constitutionality of Section 377 but also assessed the issue of their discrim-
ination. While refraining itself from determining whether same-sex marriage
has legal recognition in India, the bench has discussed various constitutional
judgments given by the foreign courts which they legalized same-sex marriage.
The judgment of Supreme Court of Canada in Same-Sex Marriage, In re,9 in
which marriage was interpreted to include same-sex unions was cited as an
example of progressive interpretation and to denote the Constitution as living
tree which accommodates and addresses the realities of modern life.

6
Navtej, supra note 1.
7
Ibid.
8
Id. at p. 209.
9
2004 SCC OnLine Can SC 80 : (2004) 3 SCR 698.
162  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

To address the dignity of LGBT community, the bench quoted Michèle

Finck10 who says that there is increasing consensus that homosexual commu-
nity should no longer be deprived of benefits that are available to heterosexual,
such as ability to contract marriage disposing equal rights and dignity func-
tions. The judgment is instructive to the Legislature to bring various laws or
to amend existing laws recognizing same-sex marriages in order to respond
rapidly to what the judgment promises to LGBTQ Community. The Judgment
comes as a historic victory in the quest for fulfilling the promise of equal
rights which includes right to marry. As Justice D.Y. Chandrachud noted,

“…this case involves much more than merely decriminalis-

ing certain conduct which has been proscribed by a colonial
law. The case is about an aspiration to realise constitutional
rights. It is about a right which every human being has, to
live with dignity. It is about enabling these citizens to realise
the worth of equal citizenship.”11

Further, he noted that decriminalization of the same-sex acts is only a first

step and the constitutional principles which render the decriminalization of
these acts have a broad range of entitlements.12 LGBT persons are entitled to
full constitutional protection, including equality and non-discrimination. This
may eventually entail recognition of same-sex partnerships and marriage,
anti-discrimination legislation in workplaces, and more. In his judgment he
discussed the judgments of various courts of different countries by which they
direct their Government either to bring legislation or amend the existing laws
in order to recognize same-sex marriages.

The Supreme Court of Nepal in Sunil Babu Pant v. Nepal Govt.13 held that
every person has an inherent right to marriage regardless of sexual orientation
therefore the Government is directed to enact or amend a new law or the exist-
ing laws respectively in order to ensure that people with different orientation
could enjoy equal rights.14

In Oliari v. Italy15 the European Court of Human Rights held that absence
of legal recognition of the same-sex couple’s relationships who are equally
capable to enter into the stable and committed relationships as that of hetero-
sexual couples is the violation of Articles 8, 12 and 14 of European convention

10
Michèle Finck, “The role of human dignity in gay rights adjudication and legislation: A com-
parative perspective”, International Journal of Constitutional Law, Vol. 14, Jan. 2016, pp.
26-53.
11
Navtej, supra note 1 at p. 289.
12
Id. at p. 407
13
Writ Petition No. 917 of 2007, decided on 21-12-2007 (Nepal).
14
Ibid.
15
2015 ECHR 716.
 CNLU LAW JOURNAL–2020-21  163

of Human Rights. Also in United States v. Windsor16 while considering the

constitutionality of the federal law (Defense of Marriage Act) which restrict
the interpretation of words ‘marriage’ and ‘spouse’ only to legal unions
between one man and one woman, US Supreme Court held that such interpre-
tation restricting scope of these words to apply only to heterosexual unions is
unconstitutional under ‘due process’ clause. Commenting on the right to mar-
riage Justice Kennedy noted that no union except marriage is as profound as it
embodies highest ideals of love, fidelity, devotion, sacrifice and family there-
fore not permitting same-sex couples to marry is to condemn them to live
in loneliness and to exclude them from one of the civilization’s oldest insti-
tution.17 By a comparative analysis of jurisprudence from across the world J.
Chandrachud concludes that law cannot discriminate against same-sex relation-
ships and must also take positive steps to achieve equal protection. Therefore,
this historic judgment is first step towards the recognition of the civil rights of
homosexuals and clears the way in India from any hindrance.

III. ARGUMENTS IN FAVOUR OR

AGAINST SAME-SEX MARRIAGE

To completely abolish the discrimination faced by same-sex couples, their

relationships are required to be legally recognized. Mere decriminalizing con-
sensual sexual intercourse between persons of same gender is not sufficient
to ensure them social equality as that of heterosexual couples. But this objec-
tive of seeking parity with heterosexual relationships itself may be criticized
on various grounds. One such ground is to consider the institution of marriage
traditionally a union between man and woman but there is no moral ground
to support this view. There were times when slavery was not considered as a
social evil, however, the time changed and with the recognition of the human-
itarian laws it abolished. The foremost ground on which the recognition of
same-sex marriage invites criticism is that the institution of marriage involves
procreation which is not possible in the case of same-sex marriages. But if it
was so than there would have been attempt to prohibit unions between a ster-
ile women and fertile man or vice versa.18 Also with the change in time, this
is not the sole reason why people choose to come together or marry. They do
so for a lot of reasons and one of those is emotional companionship.19 Also
Homer Clarke writes that the most significant function of marriage today is
that it furnishes emotional satisfactions to be found in no other relationships.
For many people it is considered as a refuge from coldness and impersonality

16
2013 SCC OnLine US SC 86 : 186 L Ed 2d 808 : 570 US 744 (2013).
17
Obergefell, supra note 3 at p. 12.
18
Anuradha Parasar, Homosexuality In India – The Invisible Conflict, (April 3, 2019 11.02 a.m.)
<http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20
in%20India%20-%20The%20invisible%20conflict.pdf>.
19
Navtej, supra note 1 at p. 136.
164  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

of contemporary existence.20 Further it is claimed that children in such union

would be deprived of the experience of either motherhood or fatherhood as a
result the normal development of children may be hindered but scientific stud-
ies and psychologists are of the opinion that it is not the gender which makes
the difference but the love and commitments of parents do. There are var-
ious International case laws on the parenting by same-sex couples. In E.B.
v. France21, the European Court of Human Rights held that application for
adoption cannot be rejected merely on the ground that person is living with
same-sex partner. Also since 2008 the Revised European Convention on the
Adoption of Children of 2008 now expressly contemplates the possibility of
adoption by same-sex couples.22

The other reason which further complicates the issue of legal recognition
of same-sex marriage is the religious connotation of the word ‘marriage’. In
Indian society still marriage is considered to be a sacramental union, thus a
person cannot separate his or her status as a married person from a religious
implication.23 Therefore, the perceived condemnation of homosexuality in most
of the religions provide further road block to legal recognition of same-sex
marriage. But this conventional notion of preservation of ‘sanctity of marriage’
has been used several times to oppose inter-racial, inter-caste or inter-religion
marriages but legal recognition of such marriage represent a shift from purely
religious character of the marriage. Thus marriage has no more remained, only,
a religious ceremony and can be performed for the reasons other than reli-
gious motives. Opponents of same-sex marriage also argue that if same-sex
marriages are recognized, it would start down a slippery slope towards legal-
ized incest or polygamous marriages but this argument is equally flawed as it
claims to extend their reasoning to its inevitable consequences. It presupposes
a notion that people who support same-sex marriage would also demand for
incest or polygamous marriages but if this was so it would have already hap-
pened in countries that already have legalized same-sex marriages. Further,
demand of legal recognition of same-sex marriage is based on issue of equal
rights as that of heterosexual couples. But the argument for allowing incestu-
ous marriage has nothing to do with equal rights. Since no one has the right
to marry persons in his or her own family, this is not like the case of persons
who wanted rights already possessed by some other persons of same or dif-
ferent gender.24 The demand of legalizing same-sex marriage is to grant equal
rights to deprived group and to raise them to equal pedestal with the general
20
Ibid.
21
IHRL 3284 (ECHR 2008), [2008] ECHR 55 : (2008) 47 EHRR 21.
22
Kees Waaldijk, “Same-Sex Partnership, International Protection”, Max Planck Encyclopedia
of Public International Law (MPEPIL), March 2013, <http://opil.ouplaw.com/view/10.1093/
law:epil/9780199231690/law-9780199231690-e1739>.
23
Shodhganga, “Homosexuality in India”, (March 11, 2018, 4.02 p.m.) <http://shodhganga.inflib-
net.ac.in/bitstream/10603/191572/18/18_chapter%206.pdf>.
24
Richard McDonough, “Is Same-Sex Marriage an Equal-Rights Issue?”, Public Affairs
Quarterly, Vol. 19, No. 1 (Jan. 2005), pp. 51-63 <https://www.jstor.org/stable/40441399>.
 CNLU LAW JOURNAL–2020-21  165

population. Granting such rights will not alter the rights of general population
but legalizing incestuous marriages would affect everyone’s marital rights in
ways that many people would feel to be dangerous in extreme.25 Also J. Indu
Malhotra has clarified that consensual relationships cannot be classified along
with offences of bestiality, sodomy and non-consensual relationships.26

An empirical survey of social science research has shown that there is no

difference between a heterosexual or a same-sex marriage in their psychologi-
cal dimensions and legal recognition of same-sex marriage would bestow sub-
stantial psychological, social, and health benefits and that same-sex couples and
their children.27 Further, since marriage is an important institution of the soci-
ety since the old age, many homosexuals wish to marry because they are a part
of this culture and society. They see marriage as ideal institution to enhance
their connection and commitment in relationship. Further, to choose a marital
partner is an important personal decision, over which others or the State should
have no control. Thus, if two people of same gender want to make commit-
ment of marriage, they should be permitted to do so otherwise it would result
in depriving them of the benefits and dignity which heterosexual couples enjoy.
Mere permitting them to marry will not be sufficient; their marriage should be
legally recognized on the parity with heterosexual marriages.

IV. LEGAL RECOGNITION OF SAME-SEX MARRIAGE

Till 2017, 29 countries have legally recognized same-sex marriages. In 2000,

Netherland became the first country to legalize same-sex marriage through a
Parliament legislation which has given same-sex couples the right to mar-
riage, divorce and adopt children. Belgium in 2003, Canada and Spain in 2005,
South Africa in 2006, Norway in 2008, Sweden in 2009, Iceland, Portugal and
Argentina in 2010, Denmark in 2012, Uruguay, New Zealand, France, Brazil,
England and Wales in 2013, Scotland and Luxembourg in 2014, Finland,
Ireland, Greenland and U.S. in 2015, Colombia in 2016, Germany, Malta and
Australia in 2017 have also legally recognized same-sex marriages.28

It is pertinent to observe that same-sex marriages are not illegal in India

but the marriage laws in India do not explicitly permit same-sex marriages,
and, in fact reflect a strong heterosexual bias and use terms suggesting only a
heterosexual partnership. Therefore, the paper examines various routes for the
legal recognition of such relationships and their consequences and concludes by

25
Id. at p. 5.
26
Navtej, supra note 1 at p. 489.
27
George M., supra note 5.
28
“Gay Marriage Around the World”, Pew Research Center, (Sept 8, 2017) <http://www.pewfo-
rum.org/2017/08/08/gay-marriage-around-the-world-2013/>.
166  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

providing best ways for such recognition. The various routes for recognition of
same-sex marriage may be:
1. Recognition of same-sex unions as ‘civil unions’; or
2. Recognition by introducing amendments to personal laws; or
3. By amending Special Marriage Act; or
4. By judicial reading down of Special Marriage Act.

V. SAME-SEX UNIONS AS ‘CIVIL UNIONS’

Considering the traditional opposition to same-sex marriage in Indian soci-

ety, one alternative to legally recognize the same-sex unions is to provide
them the status of civil unions. Such type of legislations to recognize same-
sex unions as civil unions have been enacted by various countries such as
U.S., U.K., Australia, New Zealand, Latin American and European Countries.
But it is pertinent to note that now all these countries have legally recog-
nized same-sex marriages. Earlier, in U.S.A. such unions were allowed as civil
unions or domestic partnerships but not as marriage. Civil Unions only pro-
vide legal recognition to the union and provide legal rights to the partners sim-
ilar but not exactly same as those accorded to spouses in marriages. While,
domestic partnerships are a form of relationship that gives limited rights to
those couples who live together but wish to remain unmarried or whose mar-
riage is prohibited by law. In U.S.A domestic partnerships are only recognized
by city councils and some private companies which provide spousal benefits
to the same-sex couples.29 Thus these alternatives are considered to be a mid-
dle ground position which would be able to accommodate the public’s appar-
ent beliefs that on one hand, gay people are generally entitled to equal rights
and on the other hand that the marriage should be confined to opposite sex
relationships. Vermont has adopted the civil unions as alternative to same-sex
marriage at the direction of its Supreme Court30 but objected by the same-
sex proponents on the ground that full equality under the law cannot be con-
ferred upon these peoples through “separate but equal” substitute to marriage.
“Separate but equal” institutions brand a particular class with badge of inferi-
ority and that they are inherently unequal.31

29
Nayantara Ravichandran, “Legal Recognition of Same-Sex Relationships in India”, <http://
docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.
pdf> (hereinafter “Nayantara”).
30
Baker v. State, 744 A 2d 864, 886-88 (1999) (requiring the Legislature to provide equal ben-
efits for gay and lesbian couples); see also Vt. Stat. Ann. tit. 15, § 1201 (2007) (providing for
civil unions in the State of Vermont).
31
Brown v. Board of Education of Topeka, 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US
483 (1954).
 CNLU LAW JOURNAL–2020-21  167

Excluding same-sex couples from the institution of marriage, even while

creating a “separate but equal” structure giving them all the instrumental ben-
efits of marriage, offends the principle of equal protection guaranteed under
Article 14 of the Indian Constitution as it has a effect to communicate that
these people are disfavored and that their relationships are less valuable than
those of their straight counterparts.32 Though civil unions or domestic part-
nerships provide various tangible benefits and state conferred rights but they
fail to provide marriage’s intangible benefits, such as esteem, self-definition,
and the stabilizing influence of social expectations. Although these benefits
may be less concrete than, say, tax exemptions, they are no less constitution-
ally significant.33 Marriage is not merely a contract entered by two persons to
live together but it a deep personal commitment to another person and involves
ideals of mutuality, companionship, intimacy, fidelity, and family. Marriage
fulfils yearnings for security, safe heaven, and connection that express com-
mon humanity and the decision whether and who to marry is among life’s
momentous acts of self-definition.34 Further mere recognizing their unions as
civil union would not bestow them same status as that of heterosexual cou-
ples thus denying them and their children the constitutionally significant priv-
ilege of state recognition. State by not recognizing same-sex marriage denies
gay people both the self-identification value and the cultural context of mar-
riage. Conferring them with the status of ‘married’ couple would provide
self-definition to same-sex couples and facilitate public understanding of their
relationships.

Civil unions cannot be equated with the institution of marriage in a coun-

try like India where marriage has historical, cultural and social significance
which a civil union does not have. In view of the noble status of marriage in
our society, it is not surprising that civil unions will be perceived to be inferior
to marriage. Therefore, conferring gays union with the lower status than mar-
riage would be a kind of discrimination on the basis of sexual orientation in
violation of their fundamental rights. In Kerrigan v. Commr. of Public Health35,
the Connecticut Supreme Court held that maintaining the second-class cit-
izen status for same-sex couples by excluding them from the status of mar-
riage is the constitutional infirmity therefore, rejected the “separate but equal”
alternative to marriage. Further, if “separate but equal” or civil union model
is adopted in India, a new law governing civil union along with other legis-
lations relating to succession, adoption, pension etc. to provide same rights to
same-sex couples has to be enacted by Parliament. Also, though the civil union
model does not interfere with the religious freedoms but could be opposed on

32
Misha Isaak, “ ‘What’s in a Name’: Civil Unions and the Constitutional Significance of
‘Marriage’ “, 10 U. Pa. J. Const. L. 607 (2008), <https://scholarship.law.upenn.edu/jcl/vol10/
iss3/6>.
33
Id. at p. 612.
34
Goodridge v. Deptt. of Public Health, 440 Mass 309 : 798 NE 2d 941 at 954.
35
289 Conn 135 : 957 A 2d 407 (2008).
168  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

the ground that it would provide the legislative recognition to the non-marital
live-in relationships contrary to Indian Culture. Therefore, recognition of same-
sex unions as civil unions does not seem to be the right course.

VI. AMENDMENT TO PERSONAL LAWS

Marriage in India is not merely considered as a union of two persons but

has solid socio-religious significance which is evident from the fact that mar-
riage is one of the crucial subjects of the personal laws of different religions
whether it is Hindu, Muslim, Christian or Parsis. The marriage among Hindus,
Christian and Parsi are governed by the statutes such as Hindu Marriage Act,
1955, The Indian Christian Marriage Act, 1872 and the Parsi Marriage and
Divorce Act, 1936 respectively.

Section 536 of The Hindu Marriage Act, 1955 that governs Hindus, Sikhs,
Jains and Buddhists provides for the conditions constituting a valid marriage
and this section merely speaks that a marriage maybe solemnized between two
Hindus without referring to the gender of the parties. It also specifically pro-
vides for the purpose of marriage the bridegroom should have attained the age
of twenty-one years and the bride eighteen.37 Therefore, since the Act provides
no gender specification, no definition of the bride and the bridegroom and no
specification that there needs to be both a bride and a bridegroom for the mar-
riage, can a marriage be solemnized between two brides or two bridegrooms
under the Hindu Marriage Act? Such interpretation is not possible because
every Act must be read as a whole and in context.38 No provision in a statute
and no word in any section can be construed in isolation, the elementary prin-
ciple of interpreting any word while considering a statute is to gather the mens
or sentential legis of the legislature.39 Section 13 (2)(iv) of the Act40, “that her
marriage (whether consummated or not) was solemnized before she attained
the age of fifteen years and she has repudiated the marriage after attaining that
age but before attaining the age of eighteen years” clearly points out the inten-
tion of legislature to confine the concept of marriage to heterosexual unions
only. Thus, the gender of the bride can be clearly interpreted, nullifying the
argument of the recognition of same-sex marriage based on such interpreta-
tion. Same is with the Christian Marriage Act which provides that the age of
the man shall be twenty one and the age of woman shall be eighteen years.41
Further, as Muslim Marriages are not governed by a statute, there is no statu-
tory definition of ‘marriage’, but they are normally considered to be a contract

36
The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.
37
Id. § 5(iii).
38
Padma Sundara Rao v. State of T.N., (2002) 3 SCC 533.
39
Grasim Industries Ltd. v. Collector of Customs, (2002) 4 SCC 297 : AIR 2002 SC 1706.
40
The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.
41
The Indian Christian Marriage Act No. 15 of 1872, S. 60.
 CNLU LAW JOURNAL–2020-21  169

for the purpose of procreation.42 Thus, all Indian personal laws appear to envis-
age marriage as only a heterosexual union.

Same-sex couples having faith in their religion may desire to marry accord-
ing to the rites, rituals, customs and traditions of their religions and at the
same time desire to legally recognize their relationship under personal laws
same as the heterosexual marriages are recognized. To recognize such mar-
riages under the umbrella of personal laws two courses are open. First, reading
down of the provisions of the legislations governing Hindus and Christian mar-
riages, on the ground that these laws would render unconstitutional up to the
extent of prohibiting homosexual marriages as it is discriminatory on the basis
of sexual orientation under Article 15 of the Indian Constitution.43 But in the
light of the decision of the Bombay High Court in State v. Narasu Appa Mali44
that the personal laws cannot be tested against the touchstone of Fundamental
Rights, it may be difficult to convince the Courts to interfere in the personal
laws on the grounds of discrimination. Second option which is the final course
would be to bring statutory amendments to the personal laws. Though it is a
most satisfactory solution of recognizing such marriages but at the same time
the most difficult to achieve in practice. Such step would definitely invite
strong criticism and adverse reaction from the society since such step would
be perceived as interference in the customs and traditions of different religions.

The argument that one’s religious faith does not recognize same-sex mar-
riages and the marriage should only be between a man and a woman is well
protected under the right to freedom of expression under Article 19 of the
Indian Constitution. Everyone is entitled to express their view about mar-
riage of same sex couples – at work or elsewhere. A religious or philosophical
belief that marriage should only be between a man and a woman is protected
under Article 9 of the European Convention on Human Rights.45 Therefore,
forceful recognition of same-sex marriages under personal laws may be taken
as unwanted interference with one’s religion. The same thing was taken into
consideration by UK’s legislature while legally recognizing same sex couples’
right to marry through The Marriage (Same-Sex Couples) Act, 2013. The leg-
islation has granted same-sex couples the same opportunities as that of heter-
osexual couples to solemnize their marriage by way of a civil ceremony and
also by way of a religious ceremony provided that religious organization has
‘opted in’ to solemnizing such marriages. The Marriage (Same Sex Couples)

42
Siddharth Narrain and Birsha Ohdedar, “A Legal Perspective on Same-Sex Marriage and
other Queer Relationships in India”, Orinam, <http://orinam.net/resources-for/law-and-enforce-
ment/ same-sex-marriage-in-india/>.
43
The Indian Constitution.
44
1951 SCC OnLine Bom 72 : (1951) 53 Bom LR 779.
45
“Marriage (Same Sex Couples) Act: A Factsheet”, Government Equalities Office, April 2014,
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
file/306000/140423_M_SSC_Act_factsheet__web_version_.pdf>.
170  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

Act 2013 provides that same-sex marriages cannot be solemnized on religious

premises or by way of a religious ceremony without the express consent of
the religious organization concerned. The Marriage (Same Sex Couples) Act
2013 also contains provisions to ensure that if religious organizations and their
representative do not wish to solemnize such marriages, they cannot be com-
pelled to do so.46 This legislation was a beautiful attempt of UK’s legislature
to balance the right to equality and dignity with the right to religious free-
doms. Thus, to face less criticism and revolt from the orthodox society Indian
Parliament should enact legislation similar to the Marriage (Same Sex Couples)
Act 2013 which would legally recognize the same-sex marriages harmonizing
it with the religious freedom.

VII. AMENDMENT OR JUDICIAL READING

DOWN THE SPECIAL MARRIAGE ACT

The best and most feasible way to legally recognize the same-sex marriage
in India is to recognize it under the Special Marriage Act, 1954 either by seek-
ing a statutory amendment to its provisions or by judicial reading down of the
Act. The Special Marriage Act is a secular legislation which provides for the
registration for the special form of marriage such as inter-religion, inter-caste
or inter-racial and the dissolution of such marriages by way of divorce. While
no separate definition of marriage is given, the Act also has heterosexist under-
pinnings, such as the definition of a ‘prohibited relationship’ which only con-
siders a relationship between a man and a woman within certain degrees of
familial relations. Further, Section 4(c)47 of the Act provides that for the pur-
pose of marriage the male should have attained the age of twenty one-years
and the female age of eighteen years which shows that in existing form it
applies only to heterosexual couples. But it is not difficult to recognize same-
sex marriages within the framework of the Act. A specific provision declaring
the same-sex marriage legal and an amendment to sec 4(c) is required to be
made. Even if, in any case, any amendment is made to the personal laws to
accommodate same-sex marriages within their framework the Special Marriage
Act would have to be amended to accord the same recognition to the relation-
ships between persons belonging to different religions. Such amendment would
be easy to be introduced and at the same time cannot said to be interfere with
religious freedoms.

Second and the final option is the judicial reading down of the Act
to include same-sex marriages on the ground that otherwise it would be

46
Paul Johnson, Robert M. Vanderbeck, Silvia Falcetta, “Religious Marriage of Same-
Sex Couples: A Report on Places of Worship in England and Wales Registered for the
Solemnization of Same-Sex Marriage” , (November 2017), <https://eprints.whiterose.
ac.uk/124435/1/Same_Sex_Religious_Marriage.pdf>.
47
The Special Marriage Act, No.43, Acts of Parliament 1954.
 CNLU LAW JOURNAL–2020-21  171

discriminatory against the same-sex couples and hence unconstitutional.

The same has been done by the various foreign courts where the laws pro-
hibiting or not allowing same sex marriages were held to be unconstitutional
invoking due process and equal protection clause.48 The Courts in these prec-
edents clearly pointed out that the right to marry is an individual right to lib-
erty which also includes equality component. A group of people cannot be
denied the right of marriage granted to others, without a very strong justi-
fication, which, the court held, did not exist. In Minister of Home Affairs v.
Fourie,49 The Constitutional Court of South Africa has held that marriage laws
that did not permit same-sex marriages were violative of Section 9(3) of the
Constitution, which states: “The state may not unfairly discriminate directly
or indirectly against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.” There
are also several Canadian decisions beginning from a decision of the Court of
Appeal for Ontario50 that held that the existing common law definition of mar-
riage to the extent that it referred to “one man and one woman” violated the
equality rights of same-sex couples under Section 5(1) of the Canadian Charter
of Rights and Freedoms and that reformulated the definition as “the voluntary
union for life of two persons to the exclusion of all others”.51

Now, after the Navtej Singh Johar case52, this option is appearing very
convincing. The judgment has affirmed the view of Delhi High Court in Naz
Foundation case,53 the ‘sex’ in Article 15 includes sexual orientation thus
prohibits discrimination against any person on the basis of his or her sexual
orientation. Discrimination on the basis of orientation is grounded in stereo-
typical judgments and generalizations about the conduct of either sex.54 Thus,
a powerful and sustainable argument can be made that if the Special Marriage
Act only recognizes the marriage between the persons belonging to different
sexes, it would lead to a discrimination against the same-sex couples based
upon their sexual orientation thus would be violative of Article 15 of the Indian
Constitution and hence unconstitutional. Accordingly, the Court must have
been urged to read down the relevant provisions to permit same-sex couples to
marry under the Special Marriage Act, 1954.

48
Goodridge v. Deptt. of Public Health, 798 NE 2d 941 (Mass 2003), Kerrigan v. Commr. of
Public Health, 289 Conn 135 : 957 A 2d 407 (2008), Varnum v. Brien, 763 NW 2d 862 (Iowa
2009).
49
2005 SCC OnLine ZACC 20 : (2006) 1 SA 524.
50
Halpern v. AG of Canada, (2003) 169 OAC 172.
51
Nayantara, supra note 29, p. 107
52
Navtej, supra 1.
53
Naz Foundation v. Govt. of NCT of Delhi, 2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1.
54
Tarunabh Khaitan, “Reading Swaraj into Article 15 – A New Deal for All Minorities, in
Law Like Love: Queer Perspectives on Law”, 281-283 (Arvind Narrain and Alok Gupta, eds.,
2011).
172  LEGAL RECOGNITION OF SAME-SEX MARRIAGE RIGHTS IN INDIA

The other option may be to enact a separate legislation by the Parliament

which exhaustively dealt with the civil rights of the transgender commu-
nity. The Act must deal with the question of marriage, partnership, adoption,
divorce, custody of child, succession and inheritance. Since no statute in India
defines marriage, the Act may specifically include the definition of marriage
and partnership. Marriage should be defined as the legal union of a man with a
woman, a man with another man, a woman with another woman, a transgender
with another transgender or a transgender with a man or a woman. Also, their
union without marriage should also be legally recognized as partnership under
the Act. Partnership should be defined as the living together of a man with a
woman, a man with another man, a woman with another woman, a transgen-
der with another transgender or a transgender with a man or a woman. The
Act must provide that the fact that the religious or customary practices do not
permit such marriages or prohibit such marriages will not be a bar against
such marriages and such marriage shall be solemnized under the police pro-
tection if required. Mere recognition of their union will not suffice, the Act
must also provides that the sexual orientation of the married couple or the cou-
ple in Partnership shall not be bar to their right to legally adopt a child. Non-
heterosexual married couples or couples in partnership will be equally entitled
to legally adopt a child as heterosexual couples. Accordingly, their rights of
divorce, custody of child, succession and inheritance shall also be dealt under
the new legislation.

VIII. CONCLUSION

From the above stated facts and arguments, one can clearly conclude that
mere decriminalizing the consensual sex between homosexual people will not
ensure them the full equality and dignity in the society. To ensure them their
dignity and equality in the society their relationships are required to be legally
recognized. The judgment in Navtej Johar case55 is only the first step in this
way; many bold steps are still awaited. Since the hurdle in the way of legal-
izing same-sex marriage is removed by the Supreme Court, various options
numerated above are open for the Government to legally recognize the same-
sex marriage fulfilling its duties to ensure fundamental rights and freedoms
to all persons. The above stated arguments demonstrate that ensuring their
union a legal status of civil union though with the equal rights will not stand
against the equality principles embodied in our constitution. Such ‘separate
but equal’ model has been struck down by the foreign court56 on the ground
of violation of equality and therefore it might face the similar challenge in
the Supreme Court of India. In a society which confers marriage with such
religious importance, denial of right to marry to the transgender people will
further reinforce discrimination as it would have the effect of treating them
55
Navtej, supra note 1.
56
Kerrigan v. Commr. of Public Health, 289 Conn 135 : 957 A 2d 407 (2008).
 CNLU LAW JOURNAL–2020-21  173

differently. Considering all the facts such as religious importance of mar-

riage, its importance under personal laws, customary practices, tradition and
the wish to marry according to one’s religious custom, the most satisfactory
course would be the recognition of same-sex marriage under the personal laws
but at the same time it is the most difficult task. Any such attempt would be
taken as the unreasonable interference with one’s religion thus will receive the
strong opposition from the society. This fact was very wisely considered by the
UK’s Parliament in 2013 while recognizing the same-sex through the Marriage
(Same Sex Couples) Act, 2013 and balanced the right to equality and dignity
with the right to religious freedoms. Therefore, in this scenario, the most via-
ble option appears either to amend or judicial striking down of the Special
Marriage Act, 1954 and to enact a new legislation governing these issues.
However, the protest and debate witnessed in United States on such similar
legislation in illustrates that such course in India would also invite vigorous
opposition. But when the rights of a class of citizens are unreasonably denied
without constitutional sanction by the reason of majoritarian view, such view
should not prevail over the constitutional freedoms even if there is apprehen-
sion of public outcry. Besides taking steps for recognizing their civil rights, it
is very necessary that such matter should be considered without further delay
as this community has already been suffered much. The members of this com-
munity were compelled to live a life full of fear of reprisal and persecution.
History already owes apology to the members of the transgender community
and their family members for the delay in providing redressal for the ignominy
and ostracism that they have suffered57, we should ensure that such apology
should not required to be asked in future on account of ignorance, based upon
majoritarian norm, of their Fundamental Rights guaranteed under the constitu-
tion of India.

57
J. Indu Malhotra, Navtej, supra note 1 at p. 493.
 THE MEDICAL TERMINATION
OF PREGNANCY ACT, 1972 – A
CRITICAL ANALYSIS
—Aparna S*

Abstract — In this paper, the author has analysed the Medical

Termination of Pregnancy Act, 1972. The major issues that
the Act has failed to rectify have been looked into. The Act does not
recognise women’s fundamental right to make reproductive choices.
It also makes an unreasonable classification between married and
unmarried women when it comes to the matter of exercising the said
choice. The author has primarily addressed the question as to whether
the foetus has a right to life. Deriving authority from some of the recent
decisions of Indian Courts in this regard, the author has reasoned as to
why the right to life of foetus should not supersede that of its mothers.
The author has proposed that the ‘compelling interest of the State’
should extend only to safeguard the autonomy of an individual to make
their respective choices and not to dictate what the choice should be.
The recently proposed Amendment Bill has also been analysed. The
author’s suggestions have been put forth towards the end.

*
IVth Year, B.A. LL.B. (Hons.), The National University of Advanced Legal Studies, (NUALS),
Kochi.
 CNLU LAW JOURNAL–2020-21  175

I. INTRODUCTION

Much of the debate concerning abortion centres itself around the ‘pro-
choice’ and ‘pro-life’ debates. The former is mainly advocated as a liberal
standpoint which argues for women’s right to make reproductive choices for
themselves. The ‘pro-life’ movement focuses on a much more conservative line
of thought by arguing that the foetus is a person having a right to life and con-
siders abortion as ethically and morally wrong.

The position in India is indeed perplexing. The Indian women seem to have
acquired the right to abortion through a policy that was mainly intended to
serve as a measure of population control rather than upholding the autonomy
that they have over their bodies.1 The provisions for abortion incorporated in
Sections 312 to 318 under the Indian Penal Code, were enacted a century ago,
in conformity with the English law. Anyone voluntarily causing a woman to
miscarry, including the pregnant woman herself, which is not in good faith is
subject to the punishment prescribed under the Code. Only those miscarriages
done with a purpose of saving the life of the pregnant woman were given an
exemption from penal consequences. It is in this backdrop that the Medical
Termination of Pregnancy Act was enacted in 1971. It has a three-pronged
objective. It has been envisaged: (1) as a measure for improving the physical
and mental health of women, (2) as a humanitarian aid when pregnancy is the
resultant of any sex crime and (3) on grounds of eugenics, to prevent children
from being born diseased and deformed.2

II. MEDICAL TERMINATION OF PREGNANCY

A. Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy Act, 1971 is a piece of legislation

enacted with an objective of regulating termination of pregnancies by regis-
tered medical practitioners.3

Section 3 of the Act enlists the circumstances in which a registered medi-

cal practitioner may terminate a pregnancy. The Act authorises the termination
of a pregnancy if, continuing it would amount to a risk to the life, physical
health or mental health of the pregnant woman or if there are chances that the
child when born would suffer from physical or mental abnormalities sufficient
to render it handicapped. Furthermore, any such pregnancy may be terminated
if it has not exceeded twelve weeks on the opinion of a medical practitioner. If

1
Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law, 66 (1st edn.,
2004).
2
Jacob George v. State of Kerala, (1994) 3 SCC 430.
3
Preamble, The Medical Termination of Pregnancy Act, 1971.
176  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1972

it has exceeded twelve weeks, but not twenty weeks, then it should be done by
not less than two such practitioners. The explanations appended to the section
states that when a woman alleges rape to be the cause of her pregnancy, the
resultant anguish caused shall be presumed to injure her mental health. Such
a presumption of anguish which would prejudice mental health also extends to
situations where a married woman’s pregnancy is due to failure of contracep-
tives used by her or her husband.

One of the most laudable aspects of this legislation is that a woman seek-
ing termination of her pregnancy does not need the consent of her husband or
other family members. The consent of the legal guardian becomes necessary
only when pregnancy of a woman who has not attained eighteen years or who
is a lunatic is sought to be terminated.

Under Section 4 of the Act, it has been explicitly provided that any termi-
nation of pregnancy under the Act should be done only in hospitals maintained
or approved by the Government. The Act also authorises a medical practitioner
to terminate a pregnancy, notwithstanding any of the stipulations provided for
under Sections 3 and 4, if he is of the opinion formed in good faith that it is
necessary to save the woman’s life.4 He is also protected from being sued in
any legal proceedings for the damage which is a consequence of any action
done in good faith.5

B. Medical Termination of Pregnancy Rules, 2003

Under the Rules, provision has been made to constitute a District Level
Committee in which one member shall be a gynaecologist, surgeon or anaes-
thetist and other members from the local medical profession, NGO and
Panchayati Raj institutions of a District.6 Each committee would function for
two calendar years and the tenure of the non-government members cannot
exceed two terms.7 Section 4 of the Rules enlists the qualifications, experience
and training that registered medical practitioners should have. A place shall
be approved for conducting medical termination of pregnancies only when
the Government is satisfied that it is safe and hygienic. Additionally, facilities
like “labour table, resuscitation and sterilization equipment, drugs and parental
fluid, back up facilities for treatment of shock and facilities for transportation”
should be available in the first trimester of pregnancy. Likewise, in the sec-
ond trimester, “an operation table and instruments for performing abdominal
or gynaecological surgery; anaesthetic equipment, resuscitation equipment and

4
S. 5, The MTP Act, 1971.
5
S. 8, The MTP Act, 1971.
6
S. 3, The MTP Rules, 2003.
7
Ibid.
 CNLU LAW JOURNAL–2020-21  177

sterilization equipment drugs and parental fluids for emergency use,” notified
by Government of India from time to time would be required.8

III. ISSUES THAT NEED TO BE ADDRESSED

A. Right to make reproductive choices

A bare perusal of the provisions of the Act is enough to indicate that it has
not been enacted with a women-centric approach in mind. That MTP Act is an
inadequate legislation, designed with intent to serve the interest of family plan-
ning programme is now a judicially accepted fact.9

Primarily, the Act does not recognise a woman’s right to make her own
reproductive choices. A woman’s right to make reproductive choices is also a
dimension of personal liberty as understood under Art. 21 of the Constitution
of India. “It is important to recognise that reproductive choices can be exer-
cised to procreate as well as to abstain from procreating.”10 In Sarmishtha
Chakrabortty v. Union of India,11 the Hon’ble Supreme Court observed thus:
“The right of a woman to have reproductive choice is an integral part of her
personal liberty, as envisaged under Art. 21 of the Constitution. She has a sac-
rosanct right to have her bodily integrity.”

Under the Act, a woman who is a victim of rape or a married woman

whose pregnancy results from failure of contraceptives are allowed to abort
within the statutorily prescribed time limits. It is also so authorised when con-
tinuing pregnancy would result in a threat to the life of the mother or if the
child, if born would be handicapped. However, an unmarried woman cannot
terminate a pregnancy due to failure of contraceptives. Also, a woman cannot
abort her child solely because she does not want to be a mother at that par-
ticular point of time. It is legally permissible only if it falls under any of the
grounds mentioned in the Act. Thus, an unreasonable classification is made
between married women and unmarried women insofar as the latter are not
allowed to terminate her pregnancy due to failure of birth-control measures
adopted by her. This is manifestly arbitrary and hence, violative of Art. 14 of
the Constitution of India. A statutory provision needs to be struck down on
the ground of manifest arbitrariness, when the provision is capricious, irra-
tional and/or without adequate determining principle, as also if it is excessive
or disproportionate.12

8
S. 5, The MTP Rules, 2003.
9
Surjibhai Badaji Kalasva v. State of Gujarat, 2018 SCC OnLine Guj 190.
10
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1.
11
Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339.
12
Shayara Bano v. Union of India, (2017) 9 SCC 1.
178  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1972

Forcing a woman to continue with an unwanted pregnancy is a blatant vio-

lation of her bodily integrity and the resultant mental trauma is detrimental to
her mental health.13 Law cannot perpetuate the oppression of women in any
circumstances whatsoever.14

i. Rights of the mother v. Rights of the foetus

A stark contradiction can be seen in the reasoning adopted by Courts in dif-

ferent decisions in this regard. For instance, in Meera Santosh Pal v. Union of
India,15 the Supreme Court while granting permission to abort a post 20 week
foetus, refrained from looking into the rights of the foetus. It rendered the
decision solely from the viewpoint of the rights of the mother. However, in the
case of a 10 year old girl, termination of a 32 week old foetus was denied on
the grounds that doing so would adversely affect her health as well as the right
of the foetus.16 This decision was subject to a plethora of criticisms and delib-
erations among the public. The reasoning adopted by the Bombay High Court
appears to be very rational and justifiable in this regard. “A woman owns her
body and has a right over it. Abortion is always a difficult and careful decision
and woman alone should be the choice-maker. Unborn foetus cannot be put on
a higher pedestal than the right of a living woman.”17(emphasis supplied)

ii. Is foetus entitled to right to life?

Jacob George v. State of Kerala18 is a case where foetus was rendered to be

‘human life from the moment of fertilisation.’ It was also observed that since
under the MTP Act, termination of pregnancy is permitted only on the three
grounds of health, humanity and eugenic, the concern for unborn child was
intended by the legislature. The Punjab and Haryana High Court in a recent
judgement observed that even in the best circumstances, no law or a person
can ethically compel a woman to carry on pregnancy that she does not want.19
However, from the moment the foetus becomes viable, the situation has to be
viewed from the perspectives of the mother as well as that of the unborn child.

At this juncture, it is pertinent to note the observations made by the

Bombay High Court in one of the most remarkable recent judgement.
“According to international human rights law, a person is vested with human
rights only at birth; an unborn foetus is not an entity with human rights.”20

13
High Court on its Own Motion v. State of Maharashtra, 2016 SCC OnLine Bom 8426.
14
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1 : AIR 2008 SC 663.
15
Meera Santosh Pal v. Union of India, (2017) 3 SCC 462 : AIR 2017 SC 461.
16
Alakh Alok Srivastava v. Union of India, (2018) 17 SCC 291 : AIR 2018 SC 2440.
17
Supra note 13.
18
Supra note 2.
19
R v. State of Haryana, 2016 SCC OnLine P&H 18369.
20
Ibid.
 CNLU LAW JOURNAL–2020-21  179

The Gujarat High Court, in Ashaben v. State of Gujarat, 21 gave an interest-

ing opinion in this regard. The Court after placing its reliance on various for-
eign statutes and cases observed that “the right to life of foetus is subject to an
implied limitation allowing the pregnancy to be terminated in order to protect
the life of a mother.” In Santhi v. State of Kerala, 22 it was observed that “by
no stretch of imagination can a foetus be equated as a person.” The concept
of personhood is hence, not conferred on a foetus despite the life being there
from the moment of conception. It was also categorically laid down that the
constitutional ‘right to life’ cannot be claimed at the foetal state of life.

The argument that foetus too has a right to life stems from ethical and
moral righteousness. It has been rightly observed that social morality being
inherently subjective in its essence,it cannot be used as a means to facilitate
undue interference into someone’s personal domain.23 Hence, it is important to
recognise the rationale that an unborn foetus cannot be put on a higher pedes-
tal than a living woman.

iii. Compelling State Interest

At the core of this debate is the principle of “Compelling State Interest”.

In the historic decision of the American Supreme Court in Roe v. Wade 24 ,
it was categorically laid down that “the right to privacy is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy”.25
However, it was equally emphasized that “the right of personal privacy is not
unqualified and must be considered against important state interests in regu-
lation”.26 The State has “important and legitimate interest in protecting the
potentiality of human life”.27

In Suchita Srivastava case,28 it was observed that in the case of pregnant

women, there also exists a “compelling state interest” to protect the life of the
unborn child. Provisions of the Act were deemed to be reasonable restrictions
on women’s right to make reproductive choices. Personal freedom has been
held to be a fundamental tenet which cannot be compromised in the name of
expediency ‘until and unless there is a compelling State purpose.’29

21
Ashaben v. State of Gujarat, 2015 SCC OnLine Guj 6198.
22
Santhi v. State of Kerala, 2017 SCC OnLine Ker 14293 : (2017) 4 KHC 681.
23
S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
24
Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973), Supreme
Court of the United States).
25
Ibid.
26
Ibid.
27
Ibid.
28
Supra note 10.
29
Supra note 14.
180  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1972

A remarkable observation made by Justice D.Y. Chandrachud in K.S.

Puttaswamy v. Union of India,30 merits mention here:

“The best decisions on how life should be lived are entrusted

to the individual. They are continuously shaped by the social
milieu in which individuals exist. The duty of the state is to
safeguard the ability to take decisions – the autonomy of the
individual – and not to dictate those decisions.”31 (emphasis
supplied)

It is the duty of the State not only to protect the human dignity but to facil-
itate it by taking positive steps in that direction.32 A woman’s right to say no
to motherhood is a right that has its origin from the right to live with dignity
enshrined under Art. 21.33 Also notable is the proposition that “every human
being has dignity by virtue of his existence.”34 Hence, the author is of the opin-
ion that a woman’s right to live with dignity cannot be done away with on the
premise of compelling interest of the State in securing right to life and dignity
of foetus, the existence of which is contentious.

B. Time limit of twenty weeks

The Act prescribes a maximum time limit of 20 weeks for abortions. This
has received a lot of due criticisms. Foetal impairments often get detected only
in the anomaly scan conducted between the 18th to 22nd weeks of pregnancy.35
Hence, the fixation of 20 weeks as the upper limit is arbitrary.

i. No uniform policy in deciding post 20 week cases

The MTP Act does not authorise abortions beyond twenty weeks. However,
the Supreme Court and the High Courts have been granting and denying per-
mission for termination of pregnancies that have advanced beyond twenty
weeks on an individual case basis. This has eventually led to the establishment
of a cumbersome procedure to be followed in these cases. Presently, a woman
seeking the termination of her pregnancy which has crossed 20 weeks has to
file a petition in that regard, which would be referred to a medical board con-
sisting of a panel of health care providers that does not include the woman’s

30
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 : AIR 2017 SC 4161.
31
Ibid.
32
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
33
Supra note 13.
34
Ibid.
35
Q&A: Abortions for Fetal Abnormality, Royal College of Obstetricians and Gynaecologists,
available at <https://www.rcog.org.uk/en/news/campaigns-and-opinions/human-fertilisa-
tion-and-embryology-bill/qa-abortions-for-fetal-abnormality/>, last seen on 23/6/2019.
 CNLU LAW JOURNAL–2020-21  181

own physician.36 Courts rely on the findings of this medical panel when it
has to grant or deny the permission to terminate any such pregnancy. “This
requirement has forced women and girls, already in traumatic situations, to
seek legal counsel, risk public scrutiny, submit to multiple physical exams by
panels of unfamiliar doctors, and ultimately experience significant delays and
even denials at the end of the process”.37

It is on case to case basis that permission for abortions are granted in cases
where the foetus has a growth of more than 20 weeks. The Courts allowing
or declining termination of pregnancy always depend upon the opinion of the
doctors.38 It may be a rare case where court passes order contrary to opinion
of medical boards.39 This is due to reason that medical and health professionals
are the experts in this field. Hence, it is the need of the hour that the Courts
follow a uniform policy while deciding on the cases involving more than 20
week old foetus.

IV. PERMANENT MEDICAL BOARDS

In this context, it is very pertinent to note a question raised by a Division

Bench of the Supreme Court in Alakh Alok Srivastava v. Union of India.40
The Court observed the need to set up permanent medical boards at the State
level to examine the cases till the Amendment Bill became law.41 The Ministry
of Health and Family Welfare has, as a consequence, asked the State and
Union Territories to establish such permanent medical boards for urgent exam-
ination of cases referred to by the District Courts, High Courts and Supreme
Court for MTP beyond 20 weeks so that immediate opinion can be given
and urgent action can be taken.42 However, there is still no clarity as to how
these boards would function. Ideally, these permanent medical boards should
be hearing the appeals in such cases without involving the judiciary so as to
achieve the purpose for expeditious disposal of these matters.

36
“Ensuring Reproductive Rights: Reform to Address Women’s and Girls’ Need for Abortion
After 20 Weeks in India”, Briefing Paper, 23, Centre for Reproductive Rights (2018).
37
Ibid.
38
R v. State of Haryana, 2016 SCC OnLine P&H 18369.
39
Ibid.
40
Supra note 16.
41
Krishnadas Rajagopal, “SC Rejects Abortion Plea of 10-Year-Old”, The Hindu (28/7/2017),
available at <https://www.thehindu.com/news/national/sc-rejects-plea-seeking-nod-for-10-year-
old-rape-survivors-abortion/article19377784.ece>, last seen on 24/6/2019.
42
Medical Termination of Pregnancy, Press Information Bureau, (9/3/2018), available at <http://
pib.nic.in/newsite/PrintRelease.aspx?relid=177209>, last seen on 24/1/2019.
182  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1972

A. Violation of International Conventions

The Committee on the Rights of the Child has emphasized on the need to
“decriminalize abortion to ensure that girls have access to safe abortion and
post-abortion services”43 and “ensure access to safe abortion and post-abortion
care services, irrespective of whether abortion itself is legal.”44 The CEDAW
recognises that the obligation to respect women’s rights warrants the parties
to “refrain from obstructing action taken by women in pursuit of their health
goals.”45

The World Health Organisation’s observations in this regard are indeed

accurate. “Laws and policies on abortion should protect women’s health and
their human rights. Regulatory, policy and programmatic barriers that hin-
der access to and timely provision of safe abortion should be removed.”46 The
Committee on Economic, Social and Cultural Rights acknowledges that the
right to sexual and reproductive health includes “the right to make free and re-
sponsible decisions and choices, free of violence, coercion and discrimination,
regarding matters concerning one’s body and sexual and reproductive health.”47
Restrictive abortion laws as well as the criminalisation of abortion have been
observed to undermine autonomy and the right to equality.48

B. Contradiction with POCSO Act

A minor is allowed to terminate her pregnancy with the consent of her legal
guardian under the MTP Act, 1971. However, under the POCSO Act, 2012, any
person who has an apprehension of the commission of any offence under the
Act should mandatorily report the matter to the Special Juvenile Police Unit or
the local police.49 Failure to report any such matter is punishable with impris-
onment of either description extending upto six months or with fine or with
both.50 Hence, this presents a dichotomy. This also has the potential to lead to

43
General Comment No. 15, U.N. Committee on the Rights of the Child, Session 62, CRC/C/
GC/15, (17/4/2013) available at <https://tbinternet.ohchr.org/_layouts/treatybodyexternal/
Download.aspx?symbolno=CRC%2fC%2fGC%2f14&Lang=en>, last seen on 24/6/2019.
44
Ibid.
45
General Recommendation No. 24, U.N. Committee on the Elimination of Discrimination
Against Women, Session 20, Document A/54/38/Rev.1, Chap. I, (4/5/1999) available at <http://
www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm>, last seen on 24/6/2019.
46
Safe Abortion: Technical and Policy Guidance for Health Systems, World Health
Organization, 2003.
47
General Comment No. 22, U.N. Committee on Economic, Social and Cultural Rights, Session
48, E/C.12/GC/22, (2016) available at <http://docstore.ohchr.org/SelfServices/FilesHandler.
ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQfQejF41Tob4CvIjeTiAP6s-
GFQktiae1vlbbOAekmaOwDOWsUe7N8TLm%2BP3HJPzxjHySkUoHMavD%2Fpyfcp3Ylzg>,
last seen on 24/6/2019.
48
Ibid.
49
S. 19, Protection of Children from Sexual Offences Act, 2012.
50
S. 21, Protection of Children from Sexual Offences Act, 2012.
 CNLU LAW JOURNAL–2020-21  183

grave consequences where the minors, in fear of disclosure of their identity,

might resort to quacks instead of approaching registered medical practitioners.
Therefore, this is a dilemma that needs to be resolved.

V. THE MEDICAL TERMINATION OF

PREGNANCY (AMENDMENT BILL), 2014

The Ministry of Health and Family Welfare introduced the MTP

(Amendment) Bill in 201451 which plugged substantially, many loopholes of the
Act.

First and foremost, the amendment obliterated “registered medical prac-

titioners”. In its place, “registered health practitioners” has been substituted
which includes recognised practitioners of Ayurveda, Unani and Siddha as well
as recognised nurses and auxiliary nurse midwives.52 Though this has been
subject to a lot of flaks from the medical community, the author feels that this
would facilitate an ease of access to such facilities.

The next important change made was to raise the upper limit for abortions
from 20 weeks to 24 weeks.53 This gestational limit of 24 weeks would not
apply in cases where there are “substantial foetal abnormalities.”54 The privacy
of the woman seeking abortion is also protected by forbidding the registered
healthcare providers from disclosing her name and particulars.55

Despite addressing somewhat satisfactorily, many of the concerns posed by

the Act, the amendment never became law. Presently, it has been stated that in
June 2017, the amendments were returned to the Minister of Health and Family
Welfare by the Prime Minister’s office.56

VI. SUGGESTIONS

The Act is undoubtedly, in dire need of reforms. Approaching the whole

issue from a women-centric perspective should be the primary step. The pro-
posed amendments to the Act do bode well for this purpose.

51
Medical Termination of Pregnancy (Amendment) Bill, 2014 (pending).
52
S. 3, Medical Termination of Pregnancy (Amendment) Bill, 2014.
53
S. 4(b)(i), Medical Termination of Pregnancy (Amendment) Bill, 2014.
54
S. 4(c), Medical Termination of Pregnancy (Amendment) Bill, 2014.
55
S. 5-A, Medical Termination of Pregnancy (Amendment) Bill, 2014.
56
Jaideep Malhotra, “A Law Past its Sell-by Date”, The Indian Express, (16/8/2019), available
at <https://indianexpress.com/article/opinion/columns/india-abortion-laws-mtp-act-supreme-
court-pocso-5308892/>, last seen on 24/6/2019.
184  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1972

ƒƒ Hence, it is the need of the hour to do away with the present upper gesta-
tional limit within which pregnancies may be legally terminated when the
circumstances envisaged by the Act for doing so exists. There should not
be any restriction on medical termination of pregnancy, at whatever stage it
may be, if the foetus suffers from substantial abnormalities or if continuing
with the pregnancy is detrimental to the physical or mental health of the
mother. The embargo of 24 weeks, in other cases, for which a provision has
been incorporated under the Amendment Act, appears to be reasonable.

If a woman is of the opinion that she is not in a position to welcome

a child into her life, then that in itself should be a sufficient cause to
terminate pregnancy. The continuation of an unwanted pregnancy is, in
itself detrimental to the mental health of a woman.

ƒƒ It is also important to recognise that the right to terminate pregnancy under

the Act should be made available to all women, irrespective of whether
they are married or unmarried. Hence, all women, regardless of their mar-
ital status should be entitled to avail the option of medical termination of
pregnancy if it occurs as a result of failure of contraceptives used by her or
her ‘partner’ as opposed to husband.

ƒƒ Furthermore, the need for authorisations from judiciary for medical ter-
mination of pregnancy should be obliterated. It creates unnecessary delay
and thereby defeats the purpose. The choice of whether to continue with a
pregnancy or not, even if termination at that stage may prove dangerous,
should ultimately lie with the woman.

The abortions beyond 24 weeks, if at all necessary, should be done on

the advice of a duly constituted Permanent Medical Board, which should
dispose of the applications for the same as early as possible.

ƒƒ The amendment to the existing provisions in so far as they seek to expand

the ambit of registered medical practitioners as well as to protect the pri-
vacy of the woman seeking abortion must be brought into force at the
earliest.

ƒƒ It is also imperative to have an overriding proviso under the MTP Act

whereby the pregnant adolescents seeking abortion under the Act are
exempted from the application of Section 19 (1) of POCSO Act.

VII. CONCLUSION

India was indeed early enough to liberalise abortion when compared to

other countries. However, the need for reforming it in tune with the changing
 CNLU LAW JOURNAL–2020-21  185

scenario is all the more important. The present Act fixes an unreasona-
ble time limit of 20 weeks within which abortions can be legally performed.
Furthermore, no uniform policy is followed while deciding applications for
abortions when the pregnancy has advanced beyond 20 weeks. The require-
ment of obtaining judicial authorization is in itself a long-drawn and unneces-
sary process, often leading to complications which could otherwise have been
avoided.

As the various judicial pronouncements have amply elucidated, the right to

reproductive choice, or the right to procreate and abstain from procreating falls
well within the ambit of the fundamental right to life. The State cannot cite its
compelling interest to preserve the life of a foetus while the right to live with
dignity of the woman carrying it is at peril. No one other than a woman is
entitled to take decisions concerning her body and reproductive autonomy. The
State’s duty extends only to facilitating her to take those decisions and not to
take those decisions for her. The debate should not enter or be judged from the
moral-ethical domain. The right to live with dignity of a woman cannot and
should not be made subservient to that of the foetus.
 MERGER CONTROL & TAXATION
OF CROSS-BORDER MERGER AND
ACQUISITIONS IN AUSTRALIA,
NEW ZEALAND AND INDIA: A
COMPARATIVE ANALYSIS
Avin Tiwari* & Dr. Gaurav Shukla**

Abstract — Over the past decades, the APEC region’s economic

boom has compelled world economies to sit up and take notice.
Much of this economic upsurge is attributed to the increased inflow
of FDI by way of cross-border M&A’s in the APEC Countries, which
have successfully contributed to making a competitive and favourable
business environment for the same. Under this backdrop, the authors
analyze the present legal landscape of the key economic players
(Australia, New Zealand, and India) in the APEC region to understand
the legal and policy vocabulary that created such favorable scenarios.
Furthermore, the authors use macro-economic country-wise data from
these three players to examine their cross-border M&A trends over the
past decade, from 2009 to 2018.

This paper scrutinizes the effects and role of legal policy and taxation
on cross-border M&As. Authors make a deliberate attempt to suggest
legal, policy measures and a roadmap for increasing FDI for host
countries via cross-border M&As by comparatively analyzing the
legal regime of powerhouse APEC giants like Australia and New

*
Avin Tiwari, UGC-SRF (Law), Ph.D. Scholar, Rajiv Gandhi School of Intellectual Property
Law, Indian Institute of Technology, (IIT) Kharagpur, West Bengal, India, (M). +91
7602323051, email: [email protected]
**
Dr. Gaurav Shukla, Lecturer in Law, School of Law, University of South Pacific, Fiji,
email: [email protected]; [email protected], (O) +679-3231096, (M).
+679-9212456.
 CNLU LAW JOURNAL–2020-21  187

Zealand with that of emerging Asian giants, India. While scrutinizing

the common factors and indicators that acted as a catalyst in this
economic boom, the authors observe that favourable corporate and
tax laws were the key denominators that resulted in a positive effect on
cross-border M&A’s.

Keywords: APEC, Cross-border M&As, Corporation Income Tax,

Corporate Law & Policy, Corporate Restructuring, Merger Control, Tax Laws
& Investment.

I. INTRODUCTION

Mergers and acquisitions are the essential precursors of globalization.1 They

promote geographical expansion, exploration,2 and utilization of their core
competencies in an expeditious, efficient, and economical manner.3 The jug-
gernaut of cross-border mergers has caught unprecedented momentum gaining
prominence relative to worldwide mergers in the past few years.4

Many countries such as the U.K., USA, Singapore, Cyprus, Mauritius, and
Russia have specific tax rules that grant tax benefits involving mergers and
acquisition transactions by allowing the participating parties a percentage of
tax deferral which is levied upon the deal.5 Once merger and acquisition trans-
actions cross national borders, target countries are reluctant to offer tax incen-
tives to attract the investment and economic growth, because in such cases,
relief from taxation practically implies tax exemption, super deductions, tax
holidays, and immunity because such countries may completely lose jurisdic-
tion to tax the transaction.6

Cross-border mergers are more complex and induced with surprises, and
other pitfalls as the number of jurisdictions involved in the transaction have
many folds.7 The ambit of such concerns has expanded as the pace and vol-
1
P.J. Norbäck, “Globalization and Profitability of Cross-Border Mergers and Acquisitions”,
35(2) ET 241, 263 (2008).
2
J.G. March, “Exploration and Exploitation in Organizational Learning”, 2(1) OS 71, 82 (1991).
3
J.A. Clougherty, “Cross-Border Mergers and Domestic-Firm Wages: Integrating ‘Spill-over
Effects’ and ‘Bargaining Effects’ “, 45(4) JIBS 450, 459 (2014).
4
R.L. Conn, “International Mergers: Review of Literature and Clinical Projects”, 29 FEA 1, 19
(2003).
5
M.M. Erickson and S. Wang, “Tax Benefits as a Source of Merger Premiums in Acquisitions
of Private Corporations”, 82(2) TAR 359, 382 (2007).
6
R. Sonenshine, “Determinants of Cross-border Mergers Premia”, 150(1) RWE, 187-188 (2014).
7
S. Finkelstein, “Cross-border Mergers and Acquisitions”, (Sept 28, 2020), <http://mba.tuck.
dartmouth.edu/pages/faculty/syd.finkelstein/articles/cross_border.pdf>.
188  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

ume of international cross-border deals have grown exponentially.8 Domestic

mergers and acquisitions are, generally, and on average, socially desirable
transactions as less risk is involved.9 Many countries enjoy tax deferrals, to the
extent that they use stock to compensate target corporations or their sharehold-
ers.10 Tax laws should better accommodate cross-border mergers and acquisi-
tions.11 Mergers and acquisitions are very intricate with different dimensions,
and they are attracted and governed by various laws and regulations simultane-
ously depending on the stakeholders and tax regimes involved.12

Further, these transactions are characterized by cut-throat competition in the

global market and pressure on the top and bottom-line growth.13 The trend of
upward cross-border M&As has increased with the globalization of the world
economy. The 1990s may be considered the “golden decade” for cross-border
M&As with an almost 200% increase in the volume of such deals in the Asia
Pacific region. Most countries in this region were opening their economies and
relaxing their policies, which provided the needed impetus for such deals.

Globalization has significantly increased the market for cross-border M&As.

Previously, the lack of market significance and a strict national mindset pre-
vented the vast majority of small and mid-sized companies from consider-
ing cross-border M&As. This same reason also prevented the development of
extensive academic works on the subject. The complex nature of cross-border
M&As resulted in disastrous results for a vast majority of cross-border M&As.
The cross-border merger has many complexity levels than regular intermedia-
tion, like corporate governance, the average employee’s power, company reg-
ulations, political factors, customer expectations, and country-specific culture
are all crucial factors that could spoil the transaction.14 The critical drivers of
cross-border M&As are complex and sector-specific. For instance, in the indus-
trial sectors, international competition and market pressures drive restructuring
due to excess capacity and falling demand. Technological change, particularly
in information technology, facilitates firms’ global expansion, seeking to cap-
ture new market opportunities in fast-changing technologies and pool research
and development costs. Enterprises increasingly seek to exploit intangible
8
F. Stähler, “Partial Ownership and Cross-border Mergers”, 11(3) JOE 209, 212 (2014).
9
P. Böckerman, “Geography of Domestic Mergers and Acquisitions (M&As): Evidence from
Matched Firm-Level Data”, 40(8) RS 847, 852 (2006).
10
A.J. Auerbach and D. Reishus, “The Impact of Taxation on Mergers and Acquisitions”, 69
BOER 69, 73-74 (1988).
11
C. Hayn, “Tax Attributes as Determinants of Shareholder Gains in Corporate Acquisitions”,
23(1) JOFE 121, 152 (1989).
12
E. Gomes, “Critical Success Factors through Mergers and Acquisitions Process: Revealing
Pre- and Post- M&A Connections for Improved Performance”, 55(1) TIBR 13, 17 (2013).
13
J.A. Pearce and F. David, “Corporate Mission Statements: The Bottom Line”, 1(2) AOME 109,
113 (1987).
14
G. Platt, Cross-Border Mergers Show Rising Trend as Global Economy Expands, (Sept. 28,
2020), findarticles.com.
 CNLU LAW JOURNAL–2020-21  189

assets, technology, human resources, and brand names by acquiring comple-

mentary assets in other countries and geographical diversification.

Cross-border merger and acquisitions yield dividends in terms of company

performance and profits and benefits for home and host countries when suc-
cessful corporate restructuring leads to greater efficiency without undue mar-
ket concentration. Advantages from such M&As are intangible in the form
of economy-wide spillover effects. They can help revitalize ailing firms and
local economies and create jobs through the restructuring process, technol-
ogy acquisition, and productivity growth. Government policies in areas such
as investment, competition, labor, and technology should be sufficiently flex-
ible for firms to engage in such corporate restructuring at the international
level optimistically.15 It is here that New Zealand, Australia, and India become
favourite hotspots for cross border M&A activity as listed in the latest Ease of
Doing Business Index according to the World Bank annual rating, placing New
Zealand in the first place, while Australia ranks 18th and India ranks 67th.16
This paper focuses on the recent trends and policy frameworks in selected
countries to assess their overall business climate and their conduciveness to
cross-border M&A activity.

II. RECENT TRENDS OF CROSS BORDER

MERGERS AND ACQUISITIONS

Foreign Direct Investment (FDI) across the globe fell by 23% to $1.43 tril-
lion in 2017. This fall is unlike the accelerated GDP and trade growth in 2016
due to a 22% fall in the overall value of cross-border mergers and acquisitions.
However, even discounting the large one-off deals and corporate restructurings
that inflated FDI numbers in 2016, the 2017 decline remained significant. The
value of announced Greenfield investment (an indicator of future trends) also
decreased by 14%.17

We have analyzed three specific cases: Australia, New Zealand & India.

Australia: The Australian tax system presently is undergoing a legal regime

overhaul with legislative amendments and complex rules that affect merger and
acquisition transactions in Australia. Australian M&As continued to perform
15
S. Johansson and N. Kang, Cross-Border Mergers and Acquisitions: Their Role in Industrial
Globalization, OECD, (Sept. 27, 2020), https://doi.org/10.1787/137157251088.
16
Nidhi Sharma, “In World Bank Meeting India Eyes Top 25 Rankings in Ease of Doing
Business”, The Economic Times, (Sept. 26, 2020), <https://economictimes.indiatimes.com/
news/economy/policy/in-world-bank-meeting-india-eyes-top-25-ranking-in-ease-of-doing-busi-
ness/articleshow/59360397.cms?from=mdr>.
17
UNCTAD, World Investment Report, (Sept. 27, 2020) <https://unctad.org/en/
PublicationsLibrary/wir2018_en.pdf>.
190  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

strongly throughout 2018 with a total value of M&A deals at USD 88.5 billion,
surpassing the already robust USD 85.6 billion total for 2017, and becoming
the second-highest total deal value over the past decade. Deal volume in 2017
by the number of transactions diminished to 583 from 618 last year, although
the overall decadal trend has been upwards, in 2008, there were only 375
deals. Australia’s currency, already weak at the start of the year, fell further
against the U.S. dollar and Euro as 2018 progressed, with a 13% drop versus
the U.S. dollar from January to December 2018.

The latter half of 2018 was strong for Australian M&As, accounting for
71% of the year’s total deal value, or USD 62.9 billion. Eight out of the top
ten deals by size were announced in the second half of 2018, led by the year’s
largest deal–the demerger of Coles Group, which opened on the Australian
Securities Exchange (ASX) with a value of USD 12 billion. The deal brought
Coles back to the ASX as a standalone business when Wesfarmers took it over
in 2007. The second largest deal of the year—also announced around the same
time, was the USD 6.7 billion sales of a 51% stake in a road project finance
and delivery business of the Sydney Motorway Corporation by the Government
of New South Wales. Winning bidders were a consortium of domestic inves-
tors, Transurban Group and Australian Super, plus overseas institutions like the
Abu Dhabi-based Tawreed Investments and Canada Pension Plan Investment
Board.

New Zealand: 2018 was a good year for M&A activity, both globally and
locally in New Zealand, with strong demand from cashed-up buyers and gener-
ally favourable economic conditions providing a tailwind. New Zealand M&A
activity remained steady throughout the year, with particularly strong second
and fourth quarters. There were many large deals and somewhat unexpectedly–
an increase in cross-border transactions, particularly with Europe based buyers.
Despite a significant increase in the Overseas Investment Office (OIO) process-
ing times for consent applications, this increase occurred. Merger market sta-
tistics show that 29% of deals, where the value was disclosed, were over USD
100 million in New Zealand in 2018, up from 21% in 2017. In 2018, on the
global front, the number of M&A deals continued to increase. The total deal
value was also steady at USD 3.5 million, and the average deal size was USD
384.8 million. In New Zealand, the total deal value bounced back to 2016 lev-
els, increasing from USD 3.5 billion to USD 8.2 billion. Deal volume was also
up, from 119 transactions in 2017 to 135 in 2018.

The outlook for 2020 is for continuing high buyer interest, buoyed by the
opportunity to obtain high-value acquisitions in a slightly less seller-friendly
market. Nevertheless, concerns around geopolitical and economic volatility,
while current last year, are becoming immediate, likely to infect sentiment as
the year progresses. Brexit appears increasingly shambolic. Italy could soon be
 CNLU LAW JOURNAL–2020-21  191

at the forefront of a new European debt crisis. Venezuela’s political calamity is

reaching a boiling point, and the U.S. and China have escalated their trade war
with New Zealand a possible casualty.

India: Indian economy is the third fastest growing economy right behind
the United States and China globally. India’s economic transformation and
immense market potential have attracted significant interest in the world econ-
omy.18 India is among the top 3 global investment destinations and ranks 10th
in FDI inflows in 2016, with trade volumes to USD 44 billion.19

The Indian economy has shown promising evidence of increasing depth and
maturity, emerging as the world’s fastest-growing economy with an annual
Gross Domestic Product growth rate of 7.3% in the first quarter of 2018,20
owing to a robust capital market, as well as market-friendly and competitive,
regulatory reforms. In 2018, India recorded its highest ever half-yearly Mergers
and Acquisitions (M&As) deal figure of USD 75 billion consisting of 638
transactions, including ten deals in the billion-dollar category, and approxi-
mately 52 deals having an estimated value above USD 100 million each, which
combined contributed to 93% of total deal value.21 The year 2018 witnessed
235 M&A transactions amounting to USD 65.5 billion, along with the high-
est cross-border M&As deal value since 2011 at USD 25 million, which is a
notable increase of 5.8 times the total value of the same in 2017.22 2018 was a
watershed year for M&As in India, surpassing all previous records by crossing
the $100 billion deal benchmark across both private equities (P.E.) and M&A
transactions.23

18
A. Afsharipour, “Rising Multinationals: Law and the Evolution of Outbound Acquisitions by
Indian Companies”, 44 UCD 1029, 1029-1030, (2011).
19
UNCTAD, World Investment Report, (Sept. 26, 2020), <https://unctad.org/en/
PublicationsLibrary/wir2017_en.pdf>.
20
S. Ramasubramanian, “Expert Speaks on the Overall Economic Outlook”, 16(4) LABJ 21, 25
(2018).
21
Ibid.
22
A. Chande, “2018 Setting new Records for Indian M&A”, Grant Thorton, (Sept. 27, 2020),
<https://www.grantthornton.co.uk/insights/2018-setting-new-records-for-indian-ma>.
23
Grant Thornton, “Annual Dealtracker 14th Annual Edition 2019”, (Sept. 27, 2020), <http://
gtw3.grantthornton.in/assets/DealTracker/Annual_Dealtracker_2019_V6.pdf>.
192  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER
FDI Outward Flows: India, Australia, and New Zealand, In Million US dollars, (2008 – 2018)
Country/ 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Region
India 20795 16068 15968 12608 8553 1765 11686 7514 5047 11090 11018
Australia 30261 16409 19803 1716 7889 1 441 463 -20059 2321 4881 953
New
1094 -1001 716 2 682 -433 530 472 -59 7 -222 405
Zealand
World 1704523 1098755 1374061 1542637 1247020 1344232 1321283 1682404 1587890 1434366 893820
FDI Inward Flows: India, Australia, and New Zealand, In Million US dollars, (2008 – 2018)
Country/ 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Region
India 47472 35582 27397 36497 23995 28153 34577 44009 44459 39966 42245
Australia 46687 31668 36442 58907 59540 56273 40968 20466 47753 46363 57743
New
3117 701 -61 4 229 3502 1860 2437 -311 3069 2538 1404
Zealand
World 1575544 1199437 1480036 1734701 1544762 1585374 1469900 2151843 1986624 1554497 1300742
Fig.2: Source: Panel Data summarized by Author from UNCTAD, World Investment Report 2019.
Cross-border Merger and Acquisition Overview of India, Australia, and New Zealand, 2005–2007 Average, 2016–2018 (Millions of
U.S. dollars)
CNLU LAW JOURNAL–2020-21  193
Region/Economy 2005-2007 (Pre-Crisis Annual Avg.) 2016 2017 2018

India 3488 7958 22763 33178

Australia 18979 13592 10704 33265

New Zealand 2775 333 1085 1755

World 729177 886901 693962 815726

Announced Greenfield Investment Project Overview in India, Australia, and New Zealand 2005–2007, Average, 2016–2018, (Millions
of U.S. dollars)
Region/Economy 2005-2007 (Pre-Crisis Annual Avg.) 2016 2017 2018
India 40442 60802 25524 55943

Australia 21801 20590 17411 17099

New Zealand 1522 967 1409 2518

World 748044 806779 697734 980669

194  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

Fig. 3: Source: Panel Data summarized by Author from UNCTAD, World Investment Report 2019.
 CNLU LAW JOURNAL–2020-21  195

III. STRATEGIC MOTIVATIONS,

DETERMINANTS & BENEFITS OF CROSS-
BORDER MERGERS & ACQUISITIONS

Cross-border M&As provide an additional set of factors that affect the

likelihood that two firms decide to merge.24 The main reasons and motives
for domestic as well as cross-border mergers can be found in the subsequent
theories of (i) Neoclassical profit-maximization theory,25 which includes effi-
ciency, strategy and shareholder value as its core value. (ii) Principal-Agent
theory,26 which is based upon managerial efficiency and considerations. (iii)
Internationalization theory in the OLI eclectic paradigm,27 which is based upon
ownership, location advantages, and internalization of a firm. (iv) Comparative
ownership advantage theory,28 which is based upon five characteristics of accel-
erated internalization, i.e., industrial factor endowments, dynamic learning, the
value creation, reconfiguration of the value chain, and institutional facilitation
and constraints. These theories elucidate the reasons for corporate mergers.29
Mergers are corporate and business strategies aimed at market access,30 diver-
sification,31 expansion,32 risk reduction33 and creating a sustainable competitive
advantage for the company.34 There are four distinct yet inter-related motives
for M&A viz. strategic, market, economic, and personal.35 Thus, both mergers
and cross-border mergers and acquisitions are essential strategic decisions lead-
ing to the maximization of a company’s growth.36

24
I. Erel, “Determinants of Cross-Border Mergers and Acquisitions”, 1 JOF 1, 4-5 (2010).
25
J.P. Neary, “Cross-Border Mergers as Instruments of Comparative Advantage”, 74(4) ROES
1229, 1250 (2007).
26
Bernd Wübben and Dirk Schiereck, German Mergers & Acquisitions in the USA: Transaction
Management and Success (Deutscher Universitätsverlag, 1st edn., 2007).
27
J.H. Dunning, “The Eclectic Paradigm of International Production: A Restatement and Some
Possible Extensions”, 19(1) PMJ 1, 30 (1988).
28
S.L. Sun, “A Comparative Ownership Advantage Framework for Cross-Border M&As: The
Rise of Chinese and Indian MNEs”, 47(1) JOWB 4, 15 (2012).
29
M. Firth, “Takeovers, Shareholder Returns, and the Theory of the Firm”, 94(2) TQJOE 235,
237-238 (1980).
30
P.J. Buckley, “Host–Home Country Linkages, and Host–Home Country Specific Advantages
as Determinants of Foreign Acquisitions by Indian Firms”, 21(5) IBR 173, 888-889 (2012).
31
John R.M. Hand et al., (eds.), Intangible Assets: Values, Measures and Risks (Oxford
University Press, 1st edn. 2003).
32
K. Shimizu, “Theoretical Foundations of Cross-Border Mergers and Acquisitions: A Review
of Current Research and Recommendations for the Future”, 10(3) JOIM 307, 347-348 (2004).
33
Y. Amihud and B. Lev, “Risk Reduction as a Managerial Motive for Conglomerate Mergers”
12(2) BJOE 605, 607 (1981).
34
K.S. Reddy, “Extant Reviews on Entry-mode/Internationalization, Mergers & Acquisitions,
and Diversification: Understanding Theories and Establishing Interdisciplinary Research”,
16(4) PSR 250, 251 (2015).
35
H.D. Hopkins, “Cross-Border Mergers and Acquisitions: Global and Regional Perspectives”,
(1999) 5(3) JOIM 207, 232-233 (1999).
36
J.P. Neary, “Cross-Border Mergers as Instruments of Comparative Advantage” (2007) 74(4)
ROES 1229, 1250 (2007).
196  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

Additionally, synergistic operational advantages are one of the essential

objectives that mergers and acquisitions intend to achieve.37 The combined
effect of two corporate entities compared to separate effects is always more
beneficial since it reduces expenses relating to production, administration, and
selling.38 It also makes optimum use of capacities and factors of production.39
Another benefit of integration is reducing competition, saving costs by reduc-
ing overheads, capturing a larger market share, and pooling technical or finan-
cial resources.40 A company may also opt for the merger because even though
it can expand on its own, it cannot do so due to financial constraints.41 Merger
and acquisition are justified as per unit cost fall when output increases. As a
result of the scale effect, the products can be offered at a more competitive
price on the market.42 Other reasons companies opt for mergers are strength-
ening financial position and the revival of sick companies,43 the advantage of
brand equity,44 diversification, competitive advantage, and sustainable growth.45

In addition to these factors, the geography, quality of accounting disclosure,

and bilateral trade increase the likelihood of cross-border mergers between two
countries.46 Cross-border mergers can create market power as it is legal for
post-merger combined firms to charge profit-maximizing prices themselves but
not for pre-merger separate firms to collude to do so collectively.47 Similarly,
mergers can also have tax advantages if they allow one firm to utilize tax
shields that another firm possesses.48 Such benefits accrue in the form of tax
credits, carry forward and set-off of losses,49 foreign exchange arbitrage gains,
etc.50 Tax efficiency in M&As is another tangible form of financial synergy.51
However, these synergies are unrelated to the cost of capital improvements and

37
J. Ali-Yrkkö, “Mergers and Acquisitions: Reason and Results”, Discussion Papers No. 792,
The Research Institute of the Finnish Economy, (Sept. 20, 2020), <https://www.econstor.eu/
bitstream/10419/63797/1/344861414.pdf>.
38
Bernd Wubben, German Mergers & Acquisitions in the USA: Transaction Management and
Success (Deutscher Universitätsverlag, 1st edn. 2007).
39
Lev, Supra note 33 at 607.
40
Erel, Supra note 24 at 4-5.
41
F. Trautwein, “Merger Motives and Merger Prescriptions”, 11(4) SMJ 294 (1990).
42
Benston and J. George, “Economies of Scale of Financial Institutions”, 4(2) JOMCB 312, 339
(1972).
43
The Sick Industrial Companies (Special Provisions) Act, 1985.
44
R.K. Srivastava, “The Role of Brand Equity on Mergers and Acquisition in the
Pharmaceutical Industry: When do Firms Learn from their Merger and Acquisition
Experience?” 5(3) EP 266, 282 (2012).
45
Alexander Roberts et al., Mergers and Acquisitions (Pearson Education, 1st edn., 2003).
46
Erel, Supra note 24 at 4-5.
47
Ibid.
48
Merle M. Erickson and Shiing-wu Wang, “Tax Benefits as a Source of Merger Premiums in
Acquisitions of Private Corporations”, 82(2) TAR 359, 382 (2007).
49
The Income Tax Act, No. 43, Acts of Parliament, 1961.
50
R.G. Hansen, “A Theory for the Choice of Exchange Medium in Mergers and Acquisitions”,
60(1) TJOB 75, 90 (1987).
51
Hayn, Supra note 11 at 152.
 CNLU LAW JOURNAL–2020-21  197

other tax benefits.52 One of the main benefits is that profits, or tax losses, may
be transferred within the combined company to benefit from the differential
tax regimes.53

Moreover, the merged company’s net operating losses may be used to shelter
the income of the more profitable company before the merger.54 Thus, often,
profit-making firms acquire firms making losses for this purpose.55 After the
economic liberalization, it is noticed that the largest share of Foreign Direct
Investments (FDIs) takes the shape of cross-border M&As because the low-cost
firms find it profitable to merge with high-cost firms since the monetary union
would enhance the competition of goods across countries through a reduc-
tion in trade cost, the elimination of exchange rate risk, and improved price
transparency.56

The general benefit of cross-border M & A activities tends to be a re-organ-

ization of industrial assets and production structures globally. This re-organ-
ization can lead to greater overall efficiency without necessarily significantly
higher production capacity.57 The economic benefits for the host countries
(compared to Greenfield investments) in cross-border M&As are Capital
accumulation, Employment creation, Technology transfer, Competition, and
Efficiency gains.58

IV. LEGAL & POLICY REGIME FOR

CONTROL OF CROSS-BORDER MERGERS AND
ACQUISITIONS: A COMPARATIVE ANALYSIS

Most countries in the world continued with an upward trend of actively

attracting FDI in 2017 compared to 2016. However, the overall percentage
of restrictive or regulatory investment policy measures has risen dramati-
cally in recent months, and some countries have become more averse to for-
eign takeovers. Additional ways and means to strengthen investment screening
52
S. Lebedev, “Mergers and Acquisitions in and out of Emerging Economies”, 50 JOWB 651,
659-660 (2015).
53
Duncan Angwin, In Search of Growth: Choosing Between Organic, M&A, and Strategic
Alliance Strategies (Bloomsbury Press, 1st edn., 2014).
54
“Mergers and Acquisitions: The Evolving Indian Landscape”, PWC, <https://www.pwc.in/
assets/pdfs/trs/mergers-and-acquisitions-tax/mergers-and-acquisitions-the-evolving-indian
landscape.pdf>.
55
Ibid.
56
Nicolas Coeurdacier, “Cross-Border Mergers and Acquisitions and European Integration”,
24(57) EP 55, 56-58 (2009).
57
Teresa Curristine, “Improving Public Sector Efficiency: Challenges and Opportunities”, 7(1)
OECD JOB 6, 9 (2007).
58
S. Johansson and N. Kang, “Cross-Border Mergers and Acquisitions: Their Role in Industrial
Globalisation”, (Sept. 10, 2020) <https://doi.org/10.1787/137157251088>.
198  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

mechanisms are under consideration, particularly in some developed countries.

According to UNCTAD’s estimates, 65 economies adopted 126 policy meas-
ures related to foreign investment in 2017, the highest number of countries
over the past decade, and the highest number of policy changes. Out of 126
investment policy measures, 93 liberalized, promoted, or facilitated invest-
ment, while 18 introduced restrictions or regulations. The share of relaxing
FDI norms and promotion among all actions climbed to 84%, a five-percentage
point increase compared with 2016. New restrictions or regulations for foreign
investors were mainly based on national security considerations, foreign own-
ership of land and natural resources, and local producer’s competitiveness.

Australia: The history of merger law in Australia has been brief but event-
ful. The first federal merger law was the statutory scheme focusing on § 50
of the Trade Practices Act, 1974, which came into operation in October of
that year.59 By 1977, it had already undergone two sets of amendments, one of
which made fundamental changes to both substance and procedure. However,
until 1978, the Trade Practices Commission had not come close to launching
any proceedings for breach of the section. In its present amended form, it is
seen by some as pitifully ineffectual, and by others as menacingly intense, pro-
hibits any direct or indirect acquisition of shares or assets if the acquisition
would have the effect of, or be likely to affect, substantially lessening compe-
tition in a market in Australia. The ACCC is the primary market regulator for
M&As in Australia. The ACCC is responsible for maintaining market compet-
itiveness in Australia. The ACCC may apply to the honorable Federal Court
for granting a divestiture order. The ACCC may also investigate or seek a
court order imposing a fine on transactions which affect, or is likely to affect,
substantially lessening competition. While assessing a transaction, the ACCC
can use its wide-ranging necessary information gathering powers to obtain the
information and market data that it deems necessary to assess that transaction’s
competitive effects in Australia.

Such sweeping regulatory powers vested in ACCC have resulted in

Australia’s trade practice to seek informal clearance from the ACCC, where
a proposed merger could potentially create competition issues in Australia. In
its 2008 Merger Guidelines (updated in November 2017), the ACCC lays down
the guidelines when the merger parties should seek clearance. It encourages
merger parties to make advance notice of a proposed merger where the merged
entity upon merger shall have a market share of 20% or more in the relevant
market. The ACCC may investigate transactions, even if the merger parties do
not seek informal clearance. In circumstances of heightened risk, the ACCC
may commence suo moto investigations. The merger parties are required under
law to inform the Foreign Investment Review Board (FIRB) under the Foreign
59
R. Patterson, Australia – The Merger Control Review – Edition 9, (Sept. 21, 2020) <https://
thelawreviews.co.uk/edition/the-merger-control-review-edition-9/1172897/australia>.
 CNLU LAW JOURNAL–2020-21  199

Acquisitions and Takeovers Act or, in cross-border merger cases, where the
proposed merger raises competition concerns in other jurisdictions, mainly
where it is subject to a second phase investigation in the European Union or
the United States.

The ACCC has recently investigated several closed transactions. In 2016 the
ACCC accepted legally enforceable undertakings from Primary Health Care
and Healthscope concerning Primary’s acquisition of Healthscope’s pathology
assets in Queensland, completed in 2015 without ACCC clearance.60 The par-
ties undertook to divest assets to a third party, unwinding the effects of the
merger. Separately, in March 2018, it obtained a hold separate undertaking
from Qube Logistics while the ACCC reviewed its completed acquisition of
Maritime Container Services Pty Ltd.61 The Australian Foreign Acquisitions
and Takeovers Act, 1975 (Cth) (FATA) and its subsidiary regulations adminis-
tered by the Foreign Investment Review Board (FIRB) deal with the regulation
of foreign investments by persons in Australian companies and assets.62

New Zealand: The Commerce Act, 1986, regulates M&A activity in New
Zealand. The merger control provision prohibits acquisitions of business assets
or shares that may affect the already lessening competition in a New Zealand
market. The New Zealand Commerce Commission (NZCC) is an independent
body of the Crown. It is vested with the power to administer the workability
of the Act and look into the applications for the clearance of proposed mergers.
The NZCC may approve a proposed acquisition if it is satisfied the purchase
will not affect the competition in the market. However, if the applicant can
convince the NZCC that the public benefit of the merger outweighs the poten-
tial risk to the competition in the market, then permission may be granted. The
merger clearance and authorization regime are voluntary. There are no com-
pulsory notification thresholds. Section 47(1) of the Act, the merger control
provision, discourages a person from acquiring a business assets if there is a
potential risk to the market competition. The NZCC has statutory powers to
grant or decline the merger applications for clearance. It can even initiate court
proceedings for breaches of the merger control provision. Additionally, in the
merger and acquisitions guidelines of July 2013.
60
“Primary Health Care Limited – Acquisition of Pathology Assets Previously Operated by
Healthscope in Queensland”, Australian Competition and Consumer Commission, (Sept. 21,
2020), <https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merg-
er-reviews/primary-health-care-limited-acquisition-of-pathology-assets-previously-operat-
ed-by-healthscope-in-queensland>.
61
“Qube Logistics – completed the acquisition of Maritime Container Services Pty
Ltd.”, Australian Competition and Consumer Commission, (Sept. 5, 2020), <https://
www.accc.gov.au/public-registers/mergers-registers/public-infor mal-merger-reviews/
qube-logistics-completed-acquisition-of-maritime-container-services-pty-ltd>.
62
J. Schembri, “Australia: The Acquisition and Leveraged Finance Review - Edition 5”, (Sept.
25, 2020), <https://thelawreviews.co.uk/edition/the-acquisition-and-leveraged-finance-review-
edition-5/1177153/australia>.
200  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

Section 4(3) of the Act, which dealt with the acquisitions made outside New
Zealand that may reduce competition in the New Zealand market, was recently
amended with the new Section 47-A. Under this section, the NZCC may apply
to the High Court for a declaration regarding an overseas person’s acquisition.
The High Court might make a declaration if it satisfied that–
(i) The acquisition has or might hurt the market competition of New
Zealand; and (ii) If the foreign person has acquired a controlling inter-
est in a New Zealand, body corporate through an acquisition outside
New Zealand.

All applications to the High Court must be made within 12 months from the
date of the acquisition. However, any declaration made in respect of acquisi-
tions that have already received clearance or authorization by the NZCC will
not be entertained. In giving a declaration, the Court has the discretion to
make further orders requiring any New Zealand body corporate in which the
overseas person has a controlling interest. The court may cease the business
in the New Zealand market, or make an order to dispose of the shares or other
assets or take any other action that it considers consistent with the purpose of
the Act.

The Overseas Investment Act, 2005 (OIA) applies to all acquisitions where–
(i) The acquisition is by an overseas person. (ii) Where there is 25% or
more direct or indirect ownership or controlling assets in the busi-
ness assets, which is sensitive to land or fishing quota. In such a case,
under the OIA, consent must be obtained from the Overseas Investment
Office for qualifying transactions. Under the OIA, an overseas person
means such an individual who is not a New Zealand citizen; nei-
ther does he ordinarily reside in New Zealand. It shall also include a
trust, partnership, or body corporate, where an overseas person(s) has/
have 25% or more ownership or control; or in which an overseas per-
son(s) holds 25% or more of any class of share; power to control the
company’s governing body; or voting rights. An acquisition of signifi-
cant business assets’ occurs when the total value of assets of the com-
pany, the price paid, or the total expenditure incurred exceeds NZ $100
million.63 The merger control regime in New Zealand extends to joint
ventures that buy shares or assets. Other purely contractual transactions
engaged in by joint ventures are governed by the restrictive trade prac-
tices provisions of the same Act. Further, the same merger control pro-
vision applies to all industries.

63
Patterson, Supra note 59.
 CNLU LAW JOURNAL–2020-21  201

India: In India, many laws affect and regulate cross-border mergers and
acquisitions; chief among them are: (i) Companies Act, 2013;64 (ii) SEBI
(Substantial Acquisition of Shares & Takeovers) Regulations, 2011,65 and the
Amendment Act, 2017;66 (iii) Competition Act, 2002;67 (iv) Insolvency and
Bankruptcy Code, 2016;68 (v) Income Tax Act, 1961;69 (vi) Transfer of Property
Act, 1882;70 (vii) Indian Stamp Act, 1899;71 and (viii) Foreign Exchange
Management Act, 1999 (FEMA);72 and other allied laws as applicable based on
the merger structure.

The legal provisions concerning mergers and acquisitions are covered

under Sections 234 to 240 of the Companies Act, 2013.73 Section 234 con-
tains provisions for the cross-border mergers of Indian and foreign compa-
nies.74 Further, Companies (Compromises, Arrangements and Amalgamations)
Rules, 2016,75 as amended by the Companies (Compromises, Arrangements,
and Amalgamations) Amendment Rules, 2017 (Co. Rules)76 were issued. It is
worth taking note that after the incorporation of the 2017 Rules, a foreign com-
pany is allowed to merge with a company registered under the 2013 Companies
Act or vice-versa only with the prior Reserve Bank of India approval. With
the coming into effect of Sections 5 and 6 of the Competition Act 2002,77 the
Indian merger regulation regime became operational in 2011. The Competition
Commission of India (Procedure in Regard to the Transaction of Business
Relating to Combinations) Regulations, 2011, and the Ministry of Corporate
Affairs, issue guidelines to regulate the merger regime in India.

Under the merger control regime in India, a ‘combination’ (an acquisition,

merger, or amalgamation) must be notified in advance and approved by the
Competition Commission of India (CCI) if it is beyond the prescribed thresh-
olds for assets and turnover or if it does not qualify for any exemptions under
the provision. Advance notice to the CCI is a mandatory requirement, and such
combinations are subject to a suspensory obligation. Whenever a combination
causes or is likely to cause an appreciable adverse effect on competition within

64
The Companies Act, No.18, Acts of Parliament, 2013.
65
SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.
66
SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (as amended on
March 6, 2017).
67
The Competition Act, No. 12, Acts of Parliament, 2002.
68
The Insolvency and Bankruptcy Code, No. 31, Acts of Parliament, 2016.
69
The Income Tax Act, No. 43, Acts of Parliament, 1961.
70
The Transfer of Property Act, No.4, Acts of Parliament, 1882.
71
The Indian Stamp Act, No. 2, Acts of Parliament, 1899.
72
The Foreign Exchange Management Act, No. 42, Acts of Parliament, 1999.
73
The Companies Act, No.18, Acts of Parliament, 2013.
74
Id., S. 234.
75
Notification, Ministry of Corporate Affairs No. GSR 1134 (E) (December 2016).
76
Notification, Ministry of Corporate Affairs No. GSR 368 (E) (April 2017).
77
The Competition Act, No. of 112, Acts of Parliament, 2002.
202  MERGER CONTROL & TAXATION OF CROSS-BORDER MERGER

India’s relevant market, the combination will be void. Till 31 March 2018, the
CCI had cleared 515 combinations, with a vast majority within the 30 working
days Phase I period.

V. THE ROLE OF TAX AND TAX POLICIES

IN HOST COUNTRIES IN ATTRACTING AND
PROMOTING CROSS-BORDER M&AS

Studies, which have investigated the impact of corporation taxes on the

location of mergers and acquisitions, lead to the twin possibilities that an
acquisition may arise for efficiency reasons or strategic reasons. The tax rate
prevalent in the host country has a positive or negative impact on the acquir-
er’s probability of choosing a target in that country. The effect would gener-
ally be negative if the acquirer believed that it could generate higher income
than the existing owners, subject to the host country tax rate. However, if the
acquirer thought it could reduce costs in the target company, it would also
reduce tax allowances. For a given rate of allowances, a higher tax rate would
reduce the value of tax allowances these by more, and would, therefore, hurt
the probability of the acquisition taking place in that country. Further, if the
acquirer intended to close down the operations of the target to improve its mar-
ket share, then the main effect of the host country tax would be to reduce the
price, which the acquirer needs to pay for the target; in this case, as well, a
higher tax rate would make an acquisition more likely.

Therefore, the impact of taxes is an empirical issue, and studies suggest that
the host country tax rate generally hurts the probability of a company being
acquired in the target country. This analogy is consistent with the empirical
literature results on the effects of taxation on FDI flows. So, as far as the tax
policy in India, Australia, and New Zealand are concerned, it can be said that
they are pro cross-border M&As, and with specific tweaks and harmonization
of tax policy, an optimally conducive environment for cross-border M&As can
be provided for the corporate activity to flourish.78

VI. CONCLUSION AND SUGGESTIONS

The present wave of cross-border M&As, while involving a more compre-

hensive range of countries, is principally taking place in the APEC region.
Cross-border M&As occur in all sectors, with some of the more signifi-
cant mergers in the industrial sectors where adjustments to over capacity and
reduced growth prospects are required urgently. Cross-border M&As appear in
many high technology sectors to club resources and competencies to remain

78
Wiji Arulampalam et al., “Taxes and the Location of Targets”, 1168 WERPS 1, 30-31(2018).
 CNLU LAW JOURNAL–2020-21  203

innovative and competitive, particularly in the service sectors, because of

regulatory reform, privatization, and liberalization of trade and investment
regimes, can restructure more freely at both the international and national lev-
els. Unlike past decades, these cross-border mergers are driven by consolidat-
ing capacities to benefit from scale economies fully and serve global markets.
The core competencies and the full utilization of intangible assets are critical
to the competitive strategies of multinational firms. These aims may be bet-
ter achieved through cross-border M&As than any other type of restructuring
scheme. Cross-border M&As is beneficial to both the home and host coun-
try where it can generate huge profits and yield dividends in terms of com-
pany performance as benefits. It leads to greater economic efficiency without
undue market concentration. Cross-border M&As can play a role in revitalizing
financially ailing firms, local economies and creating jobs through the corpo-
rate restructuring process, acquisition of technology, and productivity growth.
Different countries have a different stand in their openness to cross-border
M&As. Regulatory reform, privatization, and more equitable treatment of for-
eign firms in public procurement and other Government programs now signal
a new openness, encouraging more international merger activity. The ongoing
liberalization of foreign investment regimes indicates that a broader range of
countries could realize benefits from cross-border M&As. The challenge for
Governments is to have a proper mechanism and legal framework in place to
attract foreign investment, including M&As, and to realize efficiency advan-
tages and positive spillovers from the interconnections between domestic and
international firms.

Transnational corporations are more footloose than ever, with concepts

such as host and home countries becoming meaningless. The growing wave of
cross-border M&A will demand greater cooperation among countries in fram-
ing some sectoral policies, which consider the ever-increasing international
nature of firms. Because of these factors, the overall outlook for cross-border
M&A activity in India, Australia, and New Zealand looks bright, and with a
little harmonization and streamlining of their legal frameworks, especially
favourable tax policies will be conducive to cross-border M&As.
 NATIONALISM: A CURB TO FREEDOM
OF SPEECH AND EXPRESSION?
—Rahul Kumar

Abstract — The wave of Nationalism carries a very popular

and patriotic phrase – ‘Do not think what the nation does for you
but think what you can do for the nation.’ It may look very patriotic,
but is it democratic to realise or glorify this phrase? So, if it is realised,
there will be no place for ‘self-realisation’ of the people. If the people
ascertain that the nation is not doing anything productive for them or
committing a wrong with them, the people will obviously raise their
voice against it. But it may attract the charge of sedition or stigma of
anti-national as the nation has all the means to do so. Then who is wrong,
‘the People’ or ‘the Nation’? Indeed, the students of Jawaharlal Nehru
University answered this question in a democratic way by organising
an event called ‘A country without Post Office’. But the students were
framed as anti-national and charged under sedition because as already
stated, the nation had all the means to do so.

The paper will analyse the constitutionality of sedition vis-à-vis

freedom of speech and expression, the constitutionality of the event
(A Country without Post Office) and finally the constitutionality
of Nationalism. The paper will also attempt to regain a scope for
dialogues between Nationalism and expression of dissent. The paper
will keep the JNU sedition case as the main background apart from
other constitutional and criminal jurisprudence and will try to examine
how the Nationalism armed with sedition is a barrier to achieve the
pure form of constitutional democracy in India.
 CNLU LAW JOURNAL–2020-21  205

I. INTRODUCTION

A. Defining Nationalism

Once, Martin Luther King, Jr. said that ‘The hottest place in hell is reserved
for those who remain neutral in times of great moral conflict’.1 But he might
not have imagined that a condition like a hell may be imposed on someone
who does not remain silent in a great moral conflict. Here, the author is talk-
ing about the great Indian moral conflict. The conflict which occurs due to
unreasonable Nationalism and patriotism forced down into the throats of peo-
ple. The expression Nationalism contains two terms, Nation and Ism. The latter
term simply means an ideology. Whereas, the former term carries much impor-
tance in the present context. The following two questions necessarily need to
be examined in order to derive a just definition of Nation. Firstly, does Nation
mean only a particular geographical area or territory? Secondly, who and what
makes a Nation? While defining Nation, aggregation of people should be given
the most importance as they make the Nation for themselves. The essence of
a nation is the self-realization of its people, while physical progress and pro-
tection of physical boundaries are parts of its existential dimension.2 There
should be a jural society too, but it must respect the rights of its people and its
duties towards them.3 Even the Preamble of the Indian Constitution prima facie
emphasises on ‘We The People’. Therefore, a Nation means a very little with-
out its people. Hence, the definition of Nationalism is unjust and unreasonable
without the people as they are an integral part of it.

B. Introducing the Conflicts between Freedom of Speech and

Expression and Nationalism

The people of a Nation do not have mere animal existence. They enjoy at
least some basic human rights to make their life meaningful. India as a dem-
ocratic state provides those basic human rights as fundamental rights under
the Constitution. One of the rights is Freedom of Speech and Expression under
Article 19 (1) (a) of the Indian Constitution, which is under a threat nowadays.4
One of the biggest threats is unreasonable Nationalism. Here, unreasonable
Nationalism means the disproportionality between the right of free speech and
duty to be patriotic or nationalist. It also includes the modern criteria of being
a patriot which has been evolved with the time, which may force a person to
chant ‘Bharat Mata kee Jai’ to be a patriot. The people who cannot fulfil the

1
Martin Luther King Jr., thinkexist.com, <http://thinkexist.com/quotation/the_hottest_place_in_
hell_is_reserved_for_those/216415.html>.
2
Gopal Guru, What the Nation Really Needs to Know the JNU Nationalism Lectures, 9, (2016).
3
Nation, Black’s Law Dictionary, <https://thelawdictionary.org/nation/>.
4
Indian Constitution, Art. 19, Cl. (1)(a).
206  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

criteria may be considered as anti-national.5 Interestingly, freedom of speech

does not impose such duty on the citizens. Freedom of speech and expression
means the right to express one’s convictions and opinions freely, by words of
mouth, writing, printing, pictures or any other manner.6 It must be noted here
that it is nowhere mentioned that this right can be exercised only for praise-
worthy opinions or convictions and not for criticism or demur. Indeed, the
right includes both positive opinion and negative opinion. Freedom of speech
should mean that it is unassailed even when the speech hurts. The state can-
not prevent open expression of the opinions or views of its people, however
hateful to its policies.7 Nevertheless, if it is a very grave situation where the
security, sovereignty of the state, public order, friendly relation with other
states, decency, morality is under a threat or in a matter of contempt of court,
defamation or incitement of offence, the state may impose reasonable restric-
tions on the rights of freedom of speech and expression.8 Here, reasonableness
should also be of restrictions and not only of law.9 That means the restriction
must be proportionate to the expected damages.

One of the burning and contemporary instances where the freedom of

speech and expression is under a threat is JNU sedition case. The event called
‘A Country without Post Office - Against the Judicial Killing of Afzal Guru
and Maqbool Bhatt’ organised by some Jawahar Lal Nehru University (herein-
after JNU) students at JNU campus on 9 February 2016 received both national
and international attention because some students allegedly raised the so-called
‘anti-national’ slogans against the nation. It is noted that those slogans were
held ‘anti-national’ by the government just because it was demurrable and not
patriotic.10 After around three years, Delhi Police filed 1200 pages charge sheet
alleging sedition charges on some JNU students including Kanhaiya Kumar,
Umar Khalid and Anirban Bhattacharya under section 124A and 120B of the
Indian Penal Code (hereinafter IPC).11

In fact, section 124A of IPC itself has the history of being the enemy of
freedom of speech and expression. Indeed, it is considered as draconian law
5
Rekha Sharma, “Manufacturing A Controversy”, The Indian Express, (May
17, 2016, 12.01 a.m.), <https://indianexpress.com/article/opinion/columns/
bharat-mata-ki-jai-bharat-mata-ki-jai-controversy-rss-2804218/>.
6
All India Anna Dravida Munnetra Kazhagam v. Thiru K. Govindan Kutty, 1996 SCC OnLine
AP 1047 : 1996 AIHC 4509.
7
Vol. IV, Durga Das Basu, Commentary on the Constitution of India, 3681, (9th edn. 2018).
8
Indian Constitution, Art. 19, Cl. (2).
9
N.B. Khare v. State of Delhi, AIR 1950 SC 211.
10
“JNU Protest Row: Will Not Spare those who Raise Anti-India Slogans, Rajnath Singh says”,
The Times of India, (Feb. 13, 2016, 7.00 p.m.), <https://timesofindia.indiatimes.com/india/
JNU-protest-row-Will-not-spare-those-who-raise-anti-India-slogans-Rajnath-Singh-says/article-
show/50975823.cms>.
11
“JNU Sedition Case: Kanhaiya Kumar, Umar Khalid named in the Charge-Sheet”, The
Indian Express (Jan. 14, 2019, 7.35 p.m.), <https://indianexpress.com/article/cities/delhi/
jnu-sedition-case-chargesheet-kanhaiya-kumar-umar-khalid-5537648/>.
 CNLU LAW JOURNAL–2020-21  207

which was brought into the IPC to suppress the voice of our great freedom
fighters. Mahatma Gandhi, Lokmanya Tilak were some of them. Unfortunately,
the law which was used to suppress the voice of freedom during British rule,
today it is used as a weapon to force down the Nationalism in the throats of
the people and suppress their original dissent. The provisions of sedition under
IPC and its applicability on the JNU students will be discussed in detail in the
following sections.

II. CONSTITUTIONAL SCRUTINY OF SEDITION

A. History of Sedition vis-à-vis Constituent Assembly Debate

In 1922 when Mahatma Gandhi was charged under section 124A for sedi-
tion, he stated that ‘Section 124-A under, which I am happily charged, is per-
haps the prince among the political sections of the IPC designed to suppress
the liberty of the citizen.’12 Indeed, sedition punishes anyone to the extent of
life imprisonment who brings or attempt to bring into hatred or contempt or
excite disaffection towards, the government established by law in India.13 The
grounds given for sedition are too vague and provide discretionary power to
the government. Therefore, there is always a high possibility that the gov-
ernment will arbitrarily use this vagueness to suppress the dissent of its own
people. However, In Empress v. Jogendra Chunder Bose, Petheram C.J. at
the Calcutta High Court defined the term ‘disaffection’ as a feeling contrary
to affection, in other words, dislike or hatred, which is again very vague.
Similarly, ‘hatred’ is also a vague ground as it can include even the feeling of
dislike and hate.14 Therefore, the grounds given under sedition are too vague
and gives discretionary or arbitrary power to the government.

Having a look upon the history of section 124A of IPC which talks about
sedition reveals that the said section was not a part of India Penal Code drafted
by Macaulay but inserted in 1870.15 It was inserted in the IPC to deal with the
voices of the Indian freedom fighters against British imperialism. Indeed, this
section was used to suppress the voice of Indian people even on unreasonable
grounds.16 However, after independence, initially, sedition was included as a
ground for restricting freedom of speech and expression under Article 19 (2) of
the draft constitution. But, when the draft came for debate in the Constituent

12
Suhrith Parthasarathy, “Sedition and Government”, The Hindu, (Feb. 16, 2016, 00.55 a.m.),
<http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.
13
Indian Penal Code, 1860, § 124-A.
14
Hatred, Oxford Dictionary, <https://en.oxforddictionaries.com/definition/hatred>.
15
Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, 84,
(2016).
16
P.D.T. Achary, “Render Sedition Unconstitutional”, The Hindu, (Oct. 14, 2015, 1.41 a.m.)
<https://www.thehindu.com/opinion/lead/Render-sedition-unconstitutional/article10155199.
ece#!>.
208  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

Assembly on 29th April 1947, it was trenchantly criticised by Somnath Lahiri.

He warned presciently enough that sedition would be used to crush political
dissent as it had been used in the colonial times. Consequently, sedition was
withdrawn from the Constitution as a ground for imposing a restriction on the
freedom of speech and expression.17 Therefore, we do not need to separately
analyse how sedition does not come under the reasonable restriction as the
Constitutional Assembly very wisely performed this job. However, it was not
the business of the Constituent Assembly to repeal legislation or part of the
legislation (IPC). However, the Assembly did insert into Article 13 a proviso
that rendered all existing colonial laws void that were inconsistent with the
Constitution from the moment the Constitution came into force.18 But unfor-
tunately, the legislature has never been interested to remove sedition from the
IPC yet.

B. Judicial Review of Sedition

However, the Indian Judiciary did scrutinise the provisions of sedition on

constitutional yardstick. In 1950, when for the first time, the provisions of sedi-
tion were challenged on the yardstick of the Constitution in Tara Singh Gopi
Chand v. State, it was tersely noted by the court that:

“India is now a sovereign democratic state. A government

may go and be caused to go without the foundations of the
state is impaired. A law of sedition thought necessary dur-
ing a period of foreign rule has become inappropriate by the
very nature of the change which has come about. The unsuc-
cessful attempt to excite bad feelings is an offence within the
ambit of section 124A. In some instances, at-least the unsuc-
cessful attempt will not undermine or tend to overthrow
the state. It is enough if one instance appears of the possi-
ble application of the section to curtailment of the freedom
of speech and expression in a manner not permitted by the
Constitution. The section then must be held to have become
void.”19

This opinion of the court did direct that sedition is inappropriate in a dem-
ocratic country. It may be unreasonably used by the government to suppress
the dissent or opinion of its own people. Further, it was also noted by the
court that provisions of sedition curtail freedom of speech and expression in
a manner not permitted by the Constitution of India. Therefore, sedition was

17
Vol. III, Speech of Somnath Lahiri, Indian Constituent Assembly, 29 April 1947.
18
Indian Constitution, Art. 13.
19
Tara Singh Gopi Chand v. State, 1950 SCC OnLine P&H 113 : AIR 1951 P&H 27.
 CNLU LAW JOURNAL–2020-21  209

held to be ultra vires to the Constitution.20 Subsequently, the Constitution First

(Amendment) Act, inserted two terms of wide amplitude, namely, ‘in the inter-
est of’ and ‘public order’ in the Article 19 (2) to nullify the effect of the Gopi
Chand Judgment21.

Nevertheless, in Ram Nandan v. State of U.P., the Allahabad High Court

held the section 124-A of IPC ultra vires of the Constitution as it imposes a
restriction on freedom of speech and expression, not in the interest of general
public and thereby infringed the fundamental right of freedom of speech and
expression.22 However, the Supreme Court of India rescued the section 124-A
of IPC in Kedar Nath v. State of Bihar, on the reasoning that any law which is
enacted ‘in the interest of public order’ can be saved from the vice of constitu-
tional invalidity.23

C. Contemporary Analysis of Sedition

Unfortunately, the public order perspective of the Supreme Court in Kedar

Nath24 led to the misuse of the provisions of sedition for suppressing the dis-
sent of the people. The misuse of the section 124A can be understood from
the data of National Crime Record Bureau (NCRB) which states that most of
the people charged with sedition never face trial due to an incomplete investi-
gation by police or lack of evidence against the accused. Furthermore, even if
police file charge sheet in few cases and the accused faces trial, the conviction
rate is minimal. Between 2014-2017, 112 cases of sedition were booked, and
165 persons were arrested, as per the data from NCRB.25 So, the arrest rate is
high, but conviction rate is low, which shows the amount of misuse of this par-
ticular provision of law. It should also be noted here that most of the persons
accused of sedition are writers, journalists, cartoonists or activist who do not
have any army or weapon to throw the government established by law.26 They
are made scapegoat just because they have a business and a right to express
their views or opinions. But the story does not end even when an accused gets
an acquittal. Indian judiciary is infamous for its delayed justice. In fact, the
process itself is a punishment here. Till the time an accused gets an acquittal,
he has already served some parts of his punishment. Therefore, it would not be
wrong to quote here that ‘justice delayed is justice denied’.

20
Ibid.
21
The Constitution (First Amendment) Act, 1951.
22
Ram Nandan v. State of U.P., 1958 SCC OnLine All 117 : AIR 1959 All 101.
23
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
24
Ibid.
25
State/UT-wise Cases Registered, CCS, Cases Pending Trail at the end of the
Year 2016, CON, Persons Arrested, PCS, PCV under Sedition from 2014 to 2016
(From: Ministry of Home Affairs), data.govin, <https://data.gov.in/resources/
stateut-wise-cases-registered-ccs-cases-pending-trail-end-year-2016-con-persons-arrested>.
26
Ibid.
210  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

Furthermore, sedition comes under chapter six of IPC which talks about
the offences against the state. If we look at the companions of sedition in the
chapter, we find that they are the most serious offences in the IPC. Sedition
is the only offence in the chapter six which punishes a speech, unlike others
which punish an overt physical act. Here, attention should also be drawn to
other sections of IPC which punish speeches. So, we find that sections 153A
and 153B of IPC which deals with hate speech provisions gives punishment of
maximum three years and five years respectively.27 However, sedition in con-
trary gives punishment of life imprisonment.28 This is quite unfortunate that in
a democratic country where opinions or views ought to be appreciated, but on
the contrary people are getting life imprisonment for their dissent. Hence, it is
justified to say that offence like sedition draws an example of rule by law and
not rule of law. Rule by law simply means rule by any law which is laid down
by the supreme law-making authority. Whereas, rule of law connotes the rule
of law which is based on certain principles of law. The basic concept of rule of
law is to control the unlimited exercise of the power by the supreme law-mak-
ing authority of the country. It is worth noting hare that the Indian Constitution
follows principle of rule of law and not rule by law. Therefore, the provision of
sedition does not pass the Constitutional scrutiny. Furthermore, the modern use
of sedition law is to favour Nationalism and suppress the dissent of the people.
JNU sedition case is one of the burning and unfortunate examples of it.

III. CONSTITUTIONAL VALIDITY OF THE EVENT

‘A COUNTRY WITHOUT POST OFFICE’

A. Background of the JNU Event

Today, a wave of Hinduism is seen in India with several issues like Cow
Vigilance, Ram temple at Ayodhya, Triple Talaq, Kashmir issue, and all com-
ing forefront. These have created an unstable political environment in India.
The issue of Dalits and such minority has also crept strongly. Not much time
has passed since the shocking suicide of Rohith Vemula at the University of
Hyderabad, raised the issue of the poor condition of Dalits in the country.
Chaos within the country was blamed as ‘Anti Dalits’ which led to much dis-
satisfaction across the country. All these incidents some-where or other suggest
a connection to the event.

Some students of the University organised an event named ‘A Country with-

out Post Office- against the judicial killing of Afzal Guru and Maqbool Bhatt’
on 9th February 2016 to protest the controversial executions of Afzal Guru
and Maqbool Bhatt and in support of the ‘self-determination’ of Kashmir. The

27
Indian Penal Code 1860, Ss. 153-A, 153-B.
28
Supra note 23.
 CNLU LAW JOURNAL–2020-21  211

event was to show the protest through poetry, art, and music.29 However, the
right-wing student political wing of the University named Akhil Bharatiya
Vidyarthi Parishad (hereinafter ABVP) started protesting against the event,
which led to a clash between student groups. Later, it was alleged that some
so-called ‘anti-national’ slogans were also raised during the protest which was
later confirmed by the Central Forensic Science Laboratory (CFSL).30 The slo-
gans were:

Tum kitne Afzal maroge, har ghar se Afzal nikelega (How

many Afzal’s you will kill? There will be an Afzal from every
home)

Afzal ki hatya nahi sahenge (We will not tolerate the murder
of Afzal)

Kashmir kiajaadi tak, jung rahegi-jung rahegi (Until Kashmir

gets freedom, the fight will continue)

Kashmir mange ajaadi, hum lad kar lenge ajaadi (Kashmir

wants freedom, we will get through the fight)

India, Go Back

Although, it is confirmed that ant-national slogans were raised during the

protest, it is not confirmed who raised those slogans. There are several hypoth-
eses associated with that. It is claimed that the videos were doctored upon
which this hue and cry happened.31 Further, it also claimed as per the internal
investigation report of the University that the people who raised the so called
anti-national slogans were not the students of the University but outsiders who
left campus after the event. The organisers of the event distanced themselves
from the so-called anti-national slogans.32 However, the government which has
the third largest army in the world got scared of the slogans raised by the few
people inside a university campus and consequently imposed sedition charges

29
“JNU Row: What is the Outrage all About?” The Hindu, (Feb. 16, 2016, 17.41 IST), <https://
www.thehindu.com/specials/in-depth/JNU-row-What-is-the-outrage-all-about/article14479799.
ece#!>.
30
Confirmed! Anti-national slogans were raised during pro-Afzal Guru event at JNU on
February 9, zeenews.india.com, (May 17, 2016, 9.23 a.m.), <http://zeenews.india.com/news/
india/confirmed-anti-national-slogans-were-raised-during-pro-afzal-guru-event-at-jnu-on-febru-
ary-9_1885790.html>.
31
Forensic Experts say Kanhaiya Video was Doctored, India Today, (Feb.
19, 2016, 00.06 IST), <https://www.indiatoday.in/india/delhi/story/
forensic-experts-say-kanhaiya-video-was-doctored-309626-2016-02-19>.
32
JNU Row: Outsiders Raised Controversial Slogans, says University Report,
India Today, (Mar. 16, 2016, 11.07 am), <https://www.indiatoday.in/india/story/
jnu-row-outsiders-raised-controversial-slogans-says-university-report-313473-2016-03-16>.
212  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

on some JNU students for raising such slogans without any concrete evidence.
JNU Students’ Union President Kanhaiya Kumar, Umar Khalid, and Anirban
Bhattacharya were arrested by Delhi Police on the charges of sedition and
criminal conspiracy under sections 124A and 120B of the IPC.

B. Criminality of the Event vis-à-vis Freedom of Speech and to

Assemble

Since section 120B of IPC talks about the punishment for criminal conspir-
acy, it becomes necessary to take section 120A of IPC into consideration which
defines criminal conspiracy. According to the section 120A of the Indian Penal
Code, criminal conspiracy is-

“When two or more persons agree to do or cause to be done,

an illegal act or an act which is not illegal by legal means,
such an agreement is designated as a criminal conspiracy.
Provide further, no agreement except an agreement to com-
mit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more par-
ties to such agreement in pursuance thereof.”33

The definition of criminal conspiracy suggests that organising a cultural

event to express the dissent should not invoke this offence. It must be noted
that section 120A states that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy. An agreement to commit an
offence is a sine qua non for criminal conspiracy, which was nowhere associ-
ated with the instant event. In fact, the agreement was to protest the Judicial
killing of Afzal Guru and Maqbool Bhatt and in support of ‘self-determina-
tion’ of Kashmir through poetry, art, and music which is not an illegal act or
legal act by illegal means. According to the university report, the provocative
slogans were raised by the outsiders who left the campus after the event.34This
report states that the students did not even raise those so-called anti-national
slogans, however, they faced such a grievous charge of criminal conspiracy and
sedition. Here, it can be said that there might be a conspiracy but not on the
part of the JNU students but on the part of those outsiders whose mere objec-
tive was to derogate the University and its students. However, conspiracy by
outsiders is a separate issue which is beyond the scope of this paper.

In Mohd. Husain Umar Kochra v. K.S. Dalipsinghji35, the Supreme Court of

India said that to constitute a conspiracy there must be a common design and
common intention of all to work in furtherance of the common design. Here, it

33
Indian Penal Code, 1860, S. 120-A.
34
Supra note 32.
35
Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, (1969) 3 SCC 429 : AIR 1970 SC 45.
 CNLU LAW JOURNAL–2020-21  213

must be noted that when the persons who raised the provocative slogans were
outsiders and unknown to the students, the students could not have a common
design which is essential for the commission of criminal conspiracy.36 Here,
common design means a common purpose. Therefore, in the absence of an
agreement with a common design to commit an offence, the students cannot be
held liable for criminal conspiracy.

The opinion of the Court in Mogul S.S. Co. v. McGregor deserves a men-
tion here as it was observed by the court that:

“An agreement which is immoral or against public pol-

icy, or otherwise of such a character that the court will not
enforce it, is not necessarily a conspiracy, an agreement, to
be a conspiracy, must be to do that which is contrary to or
forbidden by law, as to violate a legal right or make use of
unlawful methods, such as fraud or violence, or to do what is
criminal.”37

So, even if an agreement is immoral which means against the public moral-
ity, or against public policy which means against the welfare of the public, can-
not be necessarily said to be a case of criminal conspiracy. But the event in the
instant case was neither immoral as it could not hurt the public morality, nor
against the public policy as it was not against the welfare of the public. The
event did not even violate any law or used any unlawful method. So, it can-
not be said to be contrary to or forbidden by law. Therefore, it cannot be even
alleged for a case of criminal conspiracy, leave alone the conviction.

Furthermore, the Constitution of India itself provides its people the rights
to express their opinion either solely or in a group under the right to free
speech and expression and to assemble peacefully without arms under Articles
19 (1) (a) and (b) respectively.38 In the instant matter, it is an undisputed fact
that the students assembled inside the campus peacefully and without arms.
Therefore, they do have the protection under the said provisions of the Indian
Constitution.

Now, coming to the charge of sedition which was invoked against the
JNU students. Apart from the unconstitutionality of sedition already dis-
cussed above, the JNU students cannot be charged with even the existing
jurisprudence of sedition. The attention must be drawn to the case of Kedar
Nath Singh v. State of Bihar where the Supreme Court of India held that mere
expression of disaffection or disloyalty against the government will not amount

36
Fakhruddin v. State of M.P., AIR 1967 SC 1326.
37
Mogul Steamship Co. Ltd. v. McGregor, Gow & Co., 1892 AC 25.
38
Indian Constitution, Art. 19.
214  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

to sedition. The court limited the application of the section to only those acts
which have ‘tendency to public disorder by the use of actual violence or incite-
ment to violence’. Further, the Judgment authored by B.P. Sinha opined that:

“If we were to hold that even without any tendency to dis-

order or intention to create disturbance of law and order,
by the use of words written or spoken which merely create
disaffection or feelings of enmity against the Government,
the offence of sedition is complete, then such an interpreta-
tion of the sections would make them unconstitutional in view
of Article 19(1)(a) read with clause (2) of the Constitution of
India.”39

Although the Court did not hold sedition ultra vires of the Constitution,
it did limit the application of sedition on some reasonable grounds. Those
grounds are ‘public disorder’ or ‘actual violence’ or ‘incitement to violence’. So
now the question is whether the students of JNU have fulfilled these grounds
to invoke sedition? It must again be noted that the said event was organised
to protest through poetry, art, and music which were not even close to ‘public
disorder’ or ‘disturbance’ or ‘violence’. As per the charge sheet filed by Delhi
Police the foundation of a charge of sedition under Section 124A of the IPC
against the students is the allegation that they raised ‘anti-national’ slogans.
But the police do not have any concrete evidence that the students who have
been named as accused have done any overt violent act. Nor do they have any
evidence that the alleged sloganeering led to any disruption of public order or
violence.40 Therefore, it is not just to say that the event fulfils the grounds of
sedition laid down in Kedar Nath.41

The grounds laid down in Kedar Nath Singh42 got the concrete application
in Balwant Singh v. State of Punjab where the appellants raised pro Khalistan
slogans (Khalistan Zindabad) but did not do anything further. The court
observed that:

“It appears to us that the raising some slogan only a cou-

ple of times by the two lonesome appellants, which neither
evoked any response nor any reaction from anyone in the
public can neither attract the provisions of Section 124A or

39
Supra note 23.
40
Manu Sebastian, “JNU Sedition Row: Why Charges Against Kanhaiya And Others Will Not
Stand?”, LIVELAW.IN, (Jan. 17, 2019, 9.00 a.m.), <https://www.livelaw.in/columns/jnu-sedi-
tion-case-why-sedition-charges-against-kanhaiya-kumar-and-others-are-unsustainable-142183>.
41
Supra note 23.
42
Ibid.
 CNLU LAW JOURNAL–2020-21  215

Section 153A of the IPC. Some more overt act was required
to bring home the charge to the two appellants.”43

The court acquitted the appellant while noting down its two discoveries in
the case. The followings are the two discovered grounds of the Supreme Court
in a sedition case:
1. the act of raising slogans should be accompanied by some overt act;
2. the act should evoke some response or reaction from others.44

It is clear from the charge sheet filed by the Delhi Police against the JNU
students that there was neither an overt act on the part the students nor they
evoke any kind of response or reaction from others.45 Therefore, in the instant
matter, the students do not fulfil the grounds laid down by the Supreme Court
of India, to be held liable under the charge of sedition.

Recently, in the landmark case of Shreya Singhal v. Union of India46 where

it was stated by the court that there are three basic concepts which are funda-
mental in understanding the right to free speech and expression. The first one
is ‘discussion’, the second one is ‘advocacy’ and the third one is ‘incitement.’
Mere discussion or even advocacy of particular cause howsoever unpopular is
at the heart of Article 19 1 (a) of the Constitution. It is only when such dis-
cussion or advocacy reaches the level of incitement that Article 19 (2) of the
Constitution kicks in. These three concepts keep much relevance here in the
present case as the event was held to have a discussion upon the issue of the
execution of Afzal Guru and Maqbool Bhatt and advocacy for ‘self-determi-
nation’ of Kashmir and not for inciting people to apprehend the government.47
Indeed, neither discussion nor advocacy is justified as incitement. After alleg-
edly raising anti-national slogans by the students, no incident of any kind of
violence or disturbance reported there within the campus, but the campus
remained peaceful.48 Therefore, it cannot be said to be a case of sedition.

C. Application of Reasonable Restrictions

Even if the state would have tried to justify its actions under the reasonable
restrictions provided under Article 19 (2) of the Constitution of India, it would
not succeed as the grounds mentioned under clause 2 of Article 19 majorly
deal with a grave circumstance where the sovereignty, security, friendly rela-
tion of the state or public order is under a threat. The said clause also include
43
Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785.
44
Ibid.
45
Supra note 40.
46
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
47
Supra note 29.
48
Ibid.
216  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

decency, or morality or in relation to contempt of court, defamation or incite-

ment to an offence.49 As already discussed, the event did not create a grave
circumstance to fulfil the grounds mentioned under the said article rather it
was held peacefully.50 Since there was no violence during or after the event,
there was no question of threat to the sovereignty, security, integrity and
friendly relation with foreign states. Particularly, talking about ‘Sovereignty
and Integrity of India’ which was added by the Sixteenth Amendment of the
Constitution of India with the intention to guard the freedom of speech and
expression being used to assail the territorial integrity and sovereignty of the
Union.51 In fact, it restricts freedom of speech and expression which preaches
the secession of any part of India from the Union.52 But the instant event had
nothing to do with the secession of any part of India. Therefore, this ground
was not invoked. Whereas, expression ‘Security of the State’ refers to seri-
ous aggravated forms of public disorder and not ordinary law and order prob-
lem and public safety. In fact, security of the state is endangered by crimes
of violence intended to over-through the government.53 But as already estab-
lished above, there was neither violence associated with the event nor it led to
public disorder nor harmed the public safety. The event was surely not held to
overthrow the government. Therefore, the ground of ‘Security of State’ is not
invoked by the JNU students.

The ground of Friendly Relation with Foreign States is not relevant ground
in the present matter as the event did not deal in it. Now coming to the expres-
sion ‘public order’ which might be relevant in the matter. The Supreme Court
of India in Ramesh Thapar v. State of Madras did an elaborated analysis of the
concept of ‘public order’ and observed that it signifies that the state of tran-
quillity which prevails among the members of political society as a result of
the internal regulations enforced by the government which they have estab-
lished. The court further opined that before an act is held to be prejudicial to
public order, it must, therefore, be shown that it is likely to affect the public at
large.54 Here, the key word was ‘state of tranquillity’ which must be affected
to invoke the ground of ‘public order’. The event or the slogans did not any-
way affect the ‘State of Tranquillity’ as the event was peacefully organised.55
Therefore, the ground of ‘public order’ is also not invoked to put a restriction
on the event. Whereas, the grounds of contempt of court and defamation are
not relevant as their provisions are not suitable here. Finally coming to the
49
Indian Constitution, Art. 19, Cl. (2).
50
Supra note 29.
51
The Constitution (Sixteenth Amendment) Act, 1963, india.gov.in, <https://
w w w.i n d i a .gov.i n /my- gove r n m e nt /c o n s t it u t io n -i n d i a /a m e n d m e nt s /c o n s t it u t io n -
india-sixteenth-amendment-act-1963>.
52
Vol. IV, Durga Das Basu, Commentary on the Constitution of India, 3749, (9th edn., 2015).
53
Santokh Singh v. Delhi Admn., (1973) 1 SCC 659 : AIR 1973 SC1091.
54
Romesh Thappar v. State of Madras, AIR1950 SC 124.
55
Heena Kausar, “This day, that year: Delhi’s JNU Quiet, Bears no Trace of ‘Anti-national’
Tumult”, Hindustan Times, (Feb, 9, 2017, 11.31 p.m.).
 CNLU LAW JOURNAL–2020-21  217

grounds of decency and morality which are interpreted as same as lack of

obscenity.56 But obscenity has nothing to do with the instant event. Therefore,
it cannot be a ground for restrictions. Hence, even if the government wants to
put a restriction on the event on the grounds provided by Article 19 (2) of the
Constitution of India, the government cannot justify those grounds against the
students’ right to freedom of speech and expression.

Hence, both the jurisprudence of constitutional law and criminal law reit-
erate only one thing that unless or until there is violence or public disorder
follows expression of dissent, it does not amount to sedition. Therefore, it is
unjust and unfair to even allege the students for the charge of sedition.

IV. CONSTITUTIONAL VALIDITY OF

NATIONALISM VIS-À-VIS DEMOCRACY

The journey till now suggests that the JNU sedition case is a better exam-
ple of unreasonable Nationalism rather than pure sedition. Though, the
Constitution imposes some fundamental duties on every citizen towards the
nation under Article 51A, which aim to establish patriotism in their hearts
for the nation.57 However, the fundamental duties are always read with the
fundamental rights of the people. Therefore, if the Constitution is allowing
its citizens to exercise their right of free speech and expression to even crit-
icise the government and its policies under Article 19 (1) (a), the fundamen-
tal duties cannot unreasonably take those fundamental rights from the citizens.
For instance, if proper respect is shown to the National Anthem by standing
up when the National Anthem is sung. It is not right to say that disrespect is
shown by not joining the singing.58 Similarly, if it is patriotic to chant ‘Bharat
Mata Kee Jai’, it will not right to say that not chanting ‘Bharat Mata Kee Jai’
will be anti-national. It broadly means, if praising the government is patriotism
or Nationalism, criticising the government must not be anti-national.

Even the Preamble of The Constitution of India reads as - We the people of

India… to secure all its citizens… Justice, Liberty, Equality, and fraternity….59
These words hold very vast application. But briefly, we can say that Liberalism
ensures- liberty of thoughts, expression, belief, faith, and worship. Justice
ensures social, political and economic justice. Equality ensures equality of sta-
tus and opportunity whereas Fraternity ensures the dignity of the individuals
and the unity and integrity of the nation.60 These objectives are the very fun-

56
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
57
Indian Constitution, Art. 51-A.
58
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 : AIR 1987 SC 748, 752.
59
Indian Constitution, Preamble.
60
Ibid.
218  NATIONALISM: A CURB TO FREEDOM OF SPEECH AND EXPRESSION?

damentals of the Constitution. Unless these objectives are achieved we cannot

imagine an ideal constitutional democracy for India.

However, today, the nation is witnessing the wave contrary to the constitu-
tional democracy. Unfortunately, not expressly praising the nation is being con-
sidered as ‘anti-national’. Whereas, criticising the nation is considered as more
‘anti-national’. As discussed already, JNU sedition case is one of the burning
examples of such wave. Since the students criticised the execution of Afzal
Guru and Maqbool Bhatt and government’s policies against the self-determina-
tion of Kashmir, they were considered as anti-nationals.61 If those students are
anti-national then what do we call terrorists who are also ‘anti-nationals’? How
will we distinguish between these two types of ‘anti-nationals’? Indeed, it is
unjust and unreasonable to keep the students in such list where only terrorists
deserve to be kept.

Now the question arises whether Nationalism per se is undemocratic or

unconstitutional? The author would say ‘No’, Nationalism per se is not undem-
ocratic or unconstitutional. Only unreasonable Nationalism is unconstitu-
tional or undemocratic. As already discussed earlier, when Article 51A of the
Constitution imposes certain fundamental duties which must be read with
the fundamental rights, on its citizens towards the nation, it is an example of
reasonable Nationalism.62 But, when these duties start overcoming the funda-
mental rights of the citizens without providing any reasonable justification,
it becomes an unreasonable Nationalism. Mandating the play of the National
Anthem in the cinema halls was one of the examples of the unreasonable
Nationalism.63 Though, this was corrected as optional by the Supreme Court
later.64

Here, it is very important to distinguish between reasonable and unreasona-

ble Nationalism as the latter may lead to racism. In fact, the world has already
witnessed it through Hitler and Mussolini. If Adolf Hitler were not there, the
second world war might not have occurred. It was the Nationalism which led
to the destruction of the world in the world wars. Similarly, Mussolini weap-
onised Nationalism to promote ‘militarism’ in Italy, which gave destructive
consequences later.65 Therefore, we can see how Nationalism can kill democ-
racy. The suppression of the JNU event in the name of Nationalism gives a
61
Supra note 29.
62
Supra note 56.
63
Krishnadas Rajagopal, “SC makes National Anthem Mandatory in Cinema Halls”, The
Hindu, (Dec. 1, 2016, 4.21 a.m.), <https://www.thehindu.com/todays-paper/SC-makes-national-
anthem-mandatory-in-cinema-halls/article16733599.ece#!>.
64
Samanwaya Rautray, “National Anthem not Mandatory in Cinema Halls: SC”, Economic
Times, (Jan. 10, 2018, 4.13 a.m.), < https://economictimes.indiatimes.com/news/politics-and-na-
tion/national-anthem-controversy-a-brief-background/articleshow/62426770.cms>.
65
Mussolini’s Use of Militarism and Nationalism on the Italian People, weebly.com, <https://
benitmussolini.weebly.com/militarism-and-Nationalism.html>.
 CNLU LAW JOURNAL–2020-21  219

glance of the modern version of Hitler and Mussolini era. Thus, people should
always think critically about Nationalism, then only they can recognise and
accept reasonable Nationalism and reject the unreasonable Nationalism.

V. CONCLUSION

‘If a nation is creating a void, an emptiness in your life, what

kind of nation I am living in?’66

The freedom of speech and expression is the lifeline of any democracy, and
stifling, suffocating or gagging this would sound a death knell to the democ-
racy and usher in autocracy and dictatorship.67 The author believes that the
freedom of speech and expression only makes sense if people think about free-
dom before, freedom during and freedom after speech. But sedition imposes
absolute restrictions on all of them. Therefore, now this is the high time to res-
cue the freedom of speech and expression from the trap of sedition. Further,
people should believe in a deliberative, dialogical process of governance
rather than the didactic which is based on preaching emotional narratives of
Nationalism which ultimately leads to an unreasonable Nationalism. The dem-
ocratic form of government itself demands its citizens’ active and intelligent
participation through public discussion.68 Therefore, unreasonable Nationalism
is a threat to the democratic structure of our country hence it should be cured
as soon as possible. Therefore, the event, ‘A Country without Post Office’ was
justified both on the parameters of the Constitution and democracy. It would be
just to rest this paper with Voltaire’s famous words that ‘I may not agree with
what you say, but I shall defend to death your right to say so’.

66
Rohit Vemula (Part of his Poem).
67
LIC v. Manubhai D. Shah, (1992) 3 SCC 637 : AIR 1993 SC 171.
68
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
 SCOPE OF ARBITRATION IN
FAMILY LAW: ANALYSIS IN LIGHT
OF DEVELOPMENTS IN FOREIGN
JURISDICTION AND JURISPRUDENCE
—Alex K. Koshy

Abstract — Overburdening and lengthy resolution of disputes

have always been a concern in the judicial machinery. As of
late alternative methods to litigation have been introduced to reduce
the work load on the judiciary. This paper examines the scope of
arbitration in the context of family law to alleviate the stress on the
family courts. This paper analyses the how foreign jurisdictions have
interpreted and applied arbitration to family law while keeps checks
on public policy considerations. Furthermore, this paper examines
the Indian law regarding arbitration and family matters to establish
that there exists a foundation upon which arbitration in family law
can flourish. After establishing the scope for growth, North Carolina’s
family law arbitration statute is examined for India to draw inspiration
from and to formulate a draft regulation for arbitration in family law.
Arbitration in family law holds a lot of potential but the fact remains
that there is a substantial amount of work that must be undertaken.
Arbitration applicable to family is also slightly different in principle
from that usually applied to International Commercial Arbitration.
This is mostly just subjecting arbitration to certain fundamental public
policy considerations.

I. INTRODUCTION

Jurisdictions historically have been reluctant to allow arbitration of family

law disputes mostly based on concerns of arbitrability of family law matters.
Arbitrability of any subject matter is subject to the public policy of the state,
which forms the substantive law regarding arbitrability. The huge backload
 CNLU LAW JOURNAL–2020-21  221

of cases in family law courts and the tendency to retain family law disputes
in the private domain have made jurisdictions look into alternative forms of
dispute resolution and with these, attitudes towards arbitration in family law
has become increasingly more receptive. Some jurisdictions have simply lim-
ited the scope of arbitration to just the financial aspects of the family matter,
others have even allowed arbitration in child custody matters. However, the
general approach taken by most jurisdictions to address key public policy con-
siderations remain the same. This is done by restricting the unfettered freedom
which is seen in commercial law arbitration in generally. Enhanced protections
are granted to vulnerable to parties in family law arbitration, and this is either
done with the help of case law jurisprudence and enactment of substantive stat-
utory law.

II. RESEARCH QUESTIONS

The questions which the paper wishes are these :

a. What is the response of jurisdictions around the world to arbitration in
family law
b. How have jurisdictions who have adopted arbitration, solved the ques-
tion of arbitrability?
c. What is the position in India regarding arbitrability of family law mat-
ters and is there a model legislation upon which India can draft a regu-
latory framework.

These questions have been broadly addressed in two themes, First the anal-
ysis of general law of arbitrability both in the international context and the
Indian context and Second, formation of a regulatory framework for family law
arbitration in India drawing inspiration from international jurisdictions.

Part III will address concerns of general law of arbitrability with regard to
any subject matter and the evolution of the same. It will also establish that for-
eign jurisdictions have progressed in their application of extended arbitrabil-
ity but that in India there is sufficient foundation for the arbitration in family
law to flourish but certain changes with regard to public policy considerations
could be made. Part IV will examine a model family law arbitration legislation
and from which India can draft a regulatory framework on its own.

Before getting into the substantive part of the paper I would like to state
that the aim of the paper is not to propose arbitration as a panacea or elixir to
the problems in family disputes but rather to propose an alternative to the cur-
rent system and to invigorate a healthy discussion regarding alternative meth-
ods of dispute resolution in the field of family law. The citation style that will
be followed will be the 1st edition of Nujs Law review citation standard.
222  SCOPE OF ARBITRATION N FAMILY LAW

III. ARBITRABILITY

The question of arbitrability of a particular matter has always been a prob-

lematic one. The general idea of arbitrability revolves around the public policy
considerations. In this part of the paper we first look at arbitrability from an
international perspective before examining the arbitrability of family law mat-
ters in the perspective of Indian law. This comparison is to highlight the flaws
of the international systems and to ascertain whether the same has percolated
into the Indian system and if that is the case, to suggest remedial measures.

A. International Perspective of arbitrability of family law

i. Problems Posed By Applicable Substantive law

Jurisdictions around the world refer to arbitration in the broader, more gen-
eral sense but there has been a tendency to exclude family law matters from
them due to some incorrect perceptions of its inclusion being against public
policy.1 This perception among general public has been increasingly challenged
and is being subject to change.

The most common obstacle to applying arbitration to family law remains

the framing of the substantive law regarding arbitration itself. If the applicable
law relating to arbitrability is left vague or open to varied forms of interpre-
tation, it leads to the reduction of efficacy of the arbitration process in gen-
eral. An example of such an instance would be the Article 1814 of the Code
of Civil procedure of Spain.2 The article mandates that no compromise(out of
the court settlement) would be allowed in relation to matrimonial issues. The
question is what is included in the ambit of the matrimonial issues. Scholars
have argued that the application (interpretation) of this provision simply pre-
cludes judicial pronouncements like annulment or divorce from arbitration pro-
ceedings and that there is no bar in subjecting matters like property disputes
between spouses to arbitration.3 However, there is disagreement between schol-
ars regarding this interpretation, but the former proposition has been mostly
upheld.4 Vagueness of applicable law will lead to more challenges regarding
arbitrability of particular subject matter which may in the broad ambit of fam-
ily matter (the inclusion of the very subject matter in the ambit may even be
challenged) and this is detrimental to the very institution of arbitration since

1
L.F. Wolfson, Family Law Arbitration in Canada in Federation of Law Societies, National
Family Law Program, Victoria, British Columbia (2010).
2
The Civil Code of Spain, 1889.
3
M. Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion,
Toronto: Ministry of the Attorney General, Ontario (2004).
4
D. Hodson, Arbitration in International Family Law: The English Experience, the Worldwide
Perspective and the International Opportunities, World Congress on Family Law and
Children’s Rights (2013)
 CNLU LAW JOURNAL–2020-21  223

these challenges would end up taking away much of the advantages conferred
by the system of arbitration, thus bringing down its overall efficacy.5

Progressive jurisdictions keen on accommodating arbitration have amended

certain portions of substantive law to clarify what matters would be subject
to arbitration. Germany is one such example. Back in 1998, while integrat-
ing arbitration into its judicial system, Germany amended Article 1030 of the
ZPO (This article is a general provision concerning arbitrability of a number of
subject matters).6The aim of the amendment was to clarify the position of law
regarding patrimonial and non-patrimonial family disputes and its arbitrability
(arbitration was allowed in cases of patrimonial cases).7 Policy considerations
still remain relevant and interpretation of Article 1030 ZPO (which governs
objective arbitrability of a particular subject matter) still requires a case by
case analysis, but this has been argued to be as an ideal position of law relat-
ing to arbitrability8 (since even arbitrators are allowed to apply laws related to
arbitrability on a particular subject matter and a objective law would go a long
way to uniform arbitration of cases).9

ii. Public Policy Considerations

The most potent argument in forwarding an argument advancing arbitration

is the huge logjam that is caused in the judicial system due to the sheer num-
ber of cases. So, a common argument that is advanced by the proponents of
arbitration10 is that it is in the best interest of the state itself to bring out arbi-
tration framework while balancing them out with public policy considerations.
This essentially means that arbitration in family law should not be given the
same freedom as can be seen in commercial aspects.11 It must be noted that
State does have a substantial interest in family law matters especially with
respect to ascertaining legal clarity and protecting the weaker parties involved
in the process.12It this the same reason why certain countries do not allow arbi-
tration in matters of child custody,13 and there are even countries family law
arbitration is governed by a specific statute (Australia, where it is governed
by Family Law Act, 1975 and it is expressly limited to matters of property,
5
Ibid.
6
Zivilprozessordnung , 1877 ( German Code of Civil Procedure).
7
Wendy Kennett, “It’s Arbitration, But Not As We Know It: Reflections on Family Law
Dispute Resolution” 1 International Journal of Law, Policy and the Family 12(2016).
8
S.U. Gilfrich, Schiedsverfahren im Scheidungsrecht : Eine rechtsvergleichende Untersuchung
des deutschen und des US-amerikanischen Schiedsverfahrensrecht, Tu¨ bingen, Mohr Siebeck
(2007).
9
Loukas Mistelis and Stravos Brekoulakis, Arbitrability: International and Comparative
Perspectives, 330-341, ( 5th edn., 2009).
10
Jean. Jaurès, “International Arbitration from a Socialistic Point of View”, 188 The North
American Review 633(1908).
11
Thomas Balch, “Arbitration as a Term of International Law”, 7 Columbia L. Rev.15 (1915).
12
J. Paulson, The Idea of Arbitration, 277 (2013).
13
Kennett, supra note 7.
224  SCOPE OF ARBITRATION N FAMILY LAW

maintenance and finance14). This is what is essentially meant by balancing out

policy consideration and arbitrability, to demarcate clearly what specific mat-
ters can be arbitrable keeping in mind the public policy considerations of the
state which relates, at least to a limited extend, to the socio-economic status of
the public.15

iii. Modern Trend in The Law Regarding Family Arbitration

Many jurisdictions only grant the decree of divorce once ancillary disputes
regarding property, child custody, maintenance is resolved.16 If a judicial proc-
lamation is needed for granting divorce it might dissuade parties from submit-
ting other family matter disputes to arbitration. These disputes mostly happen
during the course of proceedings of divorce and hence tend to be intrinsically
linked to one another. In this background it should be of no surprise to observe
that the recent calls for acceptance of arbitration in family law matters coin-
cides with increasing de-judicialization of divorce. It must be noted that de-ju-
dicialization of divorce has only taken place in uncontested cases.17 In certain
jurisdictions, this process has come into fruition by conferring notaries the
authority to grant divorce.18

Even in this context, concerns of public policy have cropped up. That is
the reason why some jurisdictions have balanced the de-judicialization pro-
cess with that of public policy considerations. Instances of such jurisdictions
include Brazil19, Peru20, where notaries are authorized to issue divorce in
un-contested cases, albeit cases involving disabled or minor children are not
allowed. This step is taken to balance public policy considerations. There are

14
The Database for Directives by Family Court of Australia, Application in an Arbitration,
April 1, 2016, available at <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-
and-fees/court-forms/form-topics/arbitration/> (last visited on October 2, 2018).
15
Kennett, supra note 7.
16
Cathy Meyer, Understanding your Final Decree of Divorce, October 2, 2017, available at
<https://www.liveabout.com/understanding-your-final-decree-of-divorce-1103069> (last visited
on October 2, 2018).
17
Alan Uzelac, Transformation of Civil Justice: Unity and Diversity 133 (2018); Kennett, supra
note 7.
18
Family Law in Spain, Spanish Notaries Given Power to Grant Divorce, available at <https://
www.spanishbarrister.com/spanish-notaries-given-power-to-grant-divorce/> (last visited on
October 2, 2018).
19
Nicuşor Cracuni, The Divorce by the Public Notary Proceedings, available at <http://webbut.
unitbv.ro/BU2014/Series%20VII/BULETIN%20VII/25_Craciun%202-2014.pdf> (last visited
on October 2, 2018).
20
Procedures in Peru, Translators, Notaries, Legalizations, and Apostillisations in Peru, avail-
able at <http://theultimateperulist.blogspot.com/2008/12/6b-official-translations-notarisation.
html> (last visited on October 2, 2018).
 CNLU LAW JOURNAL–2020-21  225

jurisdictions like Cuba21, Romania22 where the notary can even issue divorce in
cases (uncontested) where minor or disabled children and involved. This trend
also been observed in Eastern Europe countries like Estonia where they have
gone a step further by allowing notaries to act as mediators and arbitrators.
In affirmation of the role of notaries in this process, a mediation and arbitra-
tion tribunal of Chamber of Notaries has also been established.23This can be
seen as extremely progressive step in integration of arbitration in the family
law system.

B. Analysis of Arbitrability From Indian Perspective

India was formed a democratic, secular republic. In furtherance of the sec-

ular ideal, India enacted certain distinct family laws that are applicable to dif-
ferent religious communities. The Hindu Marriage Act24 governs the largest
number of people in India (Hindu, Jain, Sikh, Buddhist). There are other Acts
such as Christian Marriage Act25, Special Marriage Act26 etc. To check arbitra-
bility of family law matters in India, we need to check the applicable law. Civil
procedural code27 guides the procedural law regarding the civil litigation which
affects the rights of people. In this context we have to two relevant provisions
of the Civil Procedural Code:

i. Section 89, Code of Civil Procedure:

The 129th Report of the Law Commission was radical in its recommenda-
tions. It recommended that the courts, in view of reducing the judicial bur-
den, after framing the issues, compulsorily refer the matter to an alternative
method of dispute settlement like arbitration, mediation or conciliation.28 Only
after parties subject themselves to one of these methods can they approach the
courts. The earlier Section 89 of the Civil procedure Code was repealed in
light of the recommendations of this law commission and to accommodate, the
Arbitration Act 1940. The law surrounding arbitration was consolidated in the
Arbitration and the Conciliation Act 199629 and a subsequent parallel amend-

21
Cuba Directives, Notaries for Divorce in Cuba, available at <http://www.cubalegalinfo.com/
decreto-ley-154-94-divorcio-notarial-reglamento> (last visited October 2, 2018); Yudarkis
Veloz Sarduy, Getting a Divorce in Cuba is Routine, available at <https://havanatimes.
org/?p=130634> (last visited on October 2, 2018).
22
The New Civil Code of Romania, 2011, Arts. 375-8.
23
E. Andresen, “State Tasks of the Public Office of Notary : Belonging to the Domain of
National or European Union Law?”, 67 Juridical International L. Rev.157 (2009).
24
The Hindu Marriage Act, 1955.
25
The Indian Christian Marriage Act, 1872.
26
The Special Marriage Act, 1954.
27
The Code of Civil Procedure, 1908.
28
Law Commission of India, Urban Legislation Mediation as Alternative to Adjudication,
Report No. 192 (1988).
29
The Arbitration and Conciliation Act, 1996.
226  SCOPE OF ARBITRATION N FAMILY LAW

ment was enacted in the Civil Procedure code, which is Section 89. It must be
noted that Section 89, explicitly mentions the process of arbitration.30

A comprehensive analysis of the entire Section 89 avails us to the fact that

a detailed nodal structure and corresponding procedural aspects has been laid
down in this Section to facilitate alternative methods of dispute resolution in
all matters involving civil litigation. Order X31 of the Code of Civil Procedure
lays down the procedural aspects of the Court referring the matter to the alter-
native form a dispute settlement.

ii. Order XXXIIA, Code of Civil Procedure

All matters that can be categorized as a matter on which civil litigation

is possible, is essentially governed by the code of civil procedure. This is to
say that even proceedings under family law, namely Hindu Marriage Act or
Special Marriage Act is subject to the provisions contained in the Code of
Civil Procedure. Order XXXIIA of the Code of Civil Procedure specifically
talks about subjecting matrimonially proceedings to compulsory settlement
procedures, immediately after the charge is framed.32 This Order in its ambit
includes a wide array of matrimonial disputes, including custody of a minor
child.33 A strict perusal of the order, would enable one to take cognizance of
the fact that for every suit regarding a matrimonial dispute, there is a inde-
pendent proceeding which would subject the matter a mandatory settlement
proceeding. It is extremely pertinent to note that, Section 89 of the Code of
Civil Procedure includes arbitration as one of the methods of out of the court
settlement and hence argument can be forwarded that Order XXXIIA includes
arbitration in its settlement procedures.34 This is view is also consistent with
the view put forth by a plain reading of the general law application to arbitra-
tion, Arbitration and Conciliation Act, 1996.35

iii. Arbitration and Conciliation Act, 1996.

There have been noticeable efforts on part of the Indian government to

ensure the promotion of arbitration, especially in the sphere of the civil mat-
ters. This can be seen with the introduction with the recent amendments to the
arbitration and conciliation act36 and the with the institutional push to introduce

30
The Code of Civil Procedure, 1908, § 89.
31
The Code of Civil Procedure, 1908, Or. X.
32
Anil Malhotra and Ranjit Malhotra, “Alternative Dispute Resolution In Indian Family Law –
Realities, Practicalities and Necessities”, available at <https://www.iafl.com/cms_media/files/
alternative_dispute_resolution_in_indian_family_law.pdf> (last visited on October 2, 2018).
33
Ibid.
34
Ibid.
35
See, Part c. The Arbitration and Conciliation Act, 1996.
36
The Arbitration and Conciliation Act, 1996, (Amendment in 2015).
 CNLU LAW JOURNAL–2020-21  227

International Arbitration Centres across India.37To signal the support to the

concept of arbitration, India is a party to New York Convention, 195838 which
is based on Recognition and Enforcement of Foreign Arbitration Awards.39
This act, provides guidelines on arbitrability.

The first conceptual clarity that needs to be brought out is the fact that,
for a dispute to be arbitrable, it need not be arising from a contract.40This dis-
pels the notion that arbitration should be applied only in the context of com-
mercial transactions. In Renu Sagar Power Co. Ltd. v. General Electric Co.41
the Supreme remarked that even claims arising out of torts could be subject
to arbitration and that it may be even included in already existing arbitration
clause between the two parties(in contract), if the tortious claim is sufficiently
connected to the transaction. The law regarding arbitrability and powers of the
tribunal was further elucidated in Olympus Superstructures (P) Ltd. v. Meena
Vijay Khetan42 . The question that arose in this case was whether an arbitration
tribunal had the power to grant specific relief. The Supreme Court answered in
the affirmative and stated that the only requirement for subjecting an issue to
arbitration is that it must be a justiciable civil issue.43 Supreme further went on
to say that the powers conferred to similar to that of a civil court which would
adjudicate the issue and that the only limitation would be those expressly set
out in the statute.

Another landmark to take into account is Hindustan Petroleum Corpn. Ltd.

v. Pinkcity Midway Petroleums44 . A party in this case was resisting arbitration
on saying that the relevant causes of actions, which were intricately linked to
short delivery and tampering with weights (seals) and measures, were criminal
sanctions that came under special statues and hence not arbitrable. However,
in this case, Supreme Court held to the contrary by saying that arbitrability
is matter independent of statuary provisions and if a clause for arbitration
existed between parties, this matter would certainly be arbitrable. This is sim-
ply an example of dual procedure, first route through arbitration and second (if
deemed be) statutorily.45 This is certainly ground-breaking in determining the
scope of arbitrability. Cases of criminal shades can even be made arbitrable
37
New Delhi Arbitration Centre, The Need for International Arbitration Institutions,
available at <https://www.livelaw.in/arbitration-training-india-changing-sce-
n a r i o / h t t p: // w w w. m o n d a q . c o m / i n d i a / x /6 6 42 0 2 / t r i a l s + a p p e a l s + c o m p e n s a t i o n /
T he +New+Del h i+I nt e r nat ional+A rbit r at ion+ Ce nt re +Bi l l+2018+A n+I n st it ut ional+
Push+To+Arbitration+In+India> (last visited on October 2, 2018).
38
The New York Convention, 1958.
39
P. Singhania, Foreign Awards in India, available at <https://singhania.in/foreign-awards-in-in-
dia-new-york-convention-geneva-convention/> (last visited on October 2, 2018).
40
The Arbitration and the Conciliation Act, 1996, § 7.
41
(1984) 4 SCC 679.
42
(1999) 5 SCC 651.
43
Ibid.
44
(2003) 6 SCC 503.
45
Haryana Telecom v. Sterlite Industries,(1999) 5SCC 688.
228  SCOPE OF ARBITRATION N FAMILY LAW

(with respect to damages) if it is related to the arbitration agreement, the only

requirement being that it be subject to express statutory provisions. On perusal
of the Act, one of the express mandates that has been made is that (excluding
commercial arbitration) the subject matter of the arbitration be decided as per
the substantive law of the land.46 Furthermore, it must be noted that the tribu-
nal is also given the power to determine its own jurisdiction.47 In addition to
this, it must be noted that there exists no express bar with respect to family
law matters.48 The fact still remains that the law should be still made clear as
to what limits the powers of the tribunal can extend, so as to balance public
policy considerations in the domain of family law. The conclusion of this part
would likely point to the fact that there exists sufficient groundwork for arbi-
tration in family law but substantive developments with respect to public policy
considerations have to made, if any.

IV. IDEAL FRAMEWORK FOR A FAMILY

LAW ARBITRATION LEGISLATION

The starting point for arbitration, like arbitration in any other field, is the
contractual agreement between the parties. The parties to the arbitration sub-
mit the dispute to an arbitrator who have their trust. There is also the added
benefit of choosing an arbitrator who is an expert in the field, a privilege that
is normally absent in the traditional system.49 The agreement forms the basis
of the arbitration and is governed by it. The question that arises in the con-
text of family law is how much of it can be subject to arbitration, especially
considering public policy considerations which is largely absent in commercial
transactions.50 The aim of the national rules governing arbitration should be to
safeguard certain important public policy constraints while letting the parties
have the choice within the boundaries so set.51 For the purpose of framing a
policy in the Indian context, we will now examine the family arbitration sce-
nario in the United States, more specifically the one adopted in North Carolina.
This paper will examine the policies and boundaries set forth in that statue and
show that most of the limitations applied there are largely coinciding with the
public policy considerations of India as well.

The impetus to arbitration in United States was given by the Uniform

Arbitration Act , 195652 and its modified version Revised Uniform Arbitration

46
The Arbitration and Conciliation Act, 1996, S. 28.
47
The Arbitration and Conciliation Act, 1996, S. 16.
48
S. Kuchwaha, Critical Analysis of Arbitration Law in India, available at <http://www.kaplegal.
com/upload/pdf/arbitration-law-india-critical-analysis.pdf> (last visited on October 2, 2018)
49
George K. Walker, “Family Law Arbitration: Legislation and Trends”, 21 J. Am. Acad.
Matrimonial Law. 521 (2008)
50
Ibid.
51
Rebekah Bassano, Family Law and Arbitration, 1 The Proctor 36 (2016).
52
The Uniform Arbitration Act, 1955 (USA).
 CNLU LAW JOURNAL–2020-21  229

Act, 2000 (RUAA).53 The latter was adopted by 47 states, with a view to estab-
lish arbitration as a viable alternative to litigation. North Carolina (‘NC’) was
the first ever state to adopt a statue specifically on family law arbitration.54
Other states did follow suit, but they are not as comprehensive as the NC stat-
ute.55 The family law arbitration act of NC has gained much acceptance on a
National scale with the American Academy of Matrimonial Lawyers draft-
ing a model statute based on the NC statute on a national scale.56 The North
Carolina Family Law Arbitration Act57 mandate specific statuary guidelines
for the same. The parties are free to enter into arbitration agreements, based
within the boundaries of the statute.58 However, procedural aspects are mostly
not regulated by the statue (like place of arbitration, how to conduct the ses-
sions etc).

A. Restrictions set in place by the Statute

Arbitration of family law, as in other subject matters, arise from the agree-
ment to arbitrate (contract). These agreements can be entered into before or
even after the marriage, but child issue pre-martial agreements are deemed
invalid.59 The NC arbitration statute permits all kinds of arbitration on fam-
ily law except that of grant of marital separation or divorce.60 Another impor-
tant question that arises is that whether parties can waive rights while entering
into an agreement to arbitrate. NC statute answers this comprehensively. The
Statute has allowed some rights to never be waived while the others can only
be waived after the controversy has arisen.61 Rights like Notice of Arbitration
Proceedings62, Conflict of Interest Disclosures63, Application to the Court by
Motion64 can only be waived after a controversy has arisen while some oth-
ers like Arbitrator Immunity,65 Confirmation of Award,66 Appeals,67 cannot be
waived at any point by either parties.

53
The Revised Uniform Arbitration Act, 2000 (USA).
54
Georgialee Lang, Time Has Come, 71 Vancover Advocate 517 (2013).
55
Ibid.
56
Ibid.
57
The North Carolina Family Law Arbitration Act, N.C. General Statute (2006).
58
Lynn P. Burelson, “Family Law Arbitration: Third Party Alternative Dispute Resolution”, 30
Campbell L. Rev. 297 (2008).
59
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-41-62 (2006).
60
Ibid.
61
Ibid.
62
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-42.2(a) (2006).
63
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-45.1(2006).
64
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-58 (2006).
65
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-45( f ) (2006).
66
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-53 (2006).
67
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-41-62 (2006).
230  SCOPE OF ARBITRATION N FAMILY LAW

B. Key differences in Family Law Arbitration Statue and General

Arbitration

i. Modifiability of Orders passed by the Arbitrational Tribunal

In the context of commercial disputes, once a decision is passed there is

rarely a need to modify the same. Family law disputes, however need mod-
ification of orders passed. If this were not the case then the cases involving
children and spouse maintenance would be outside the scope of arbitration. To
tackle this peculiar issue, a provision was added which enabled the arbitrator to
modify the order to the extent a court order can be modified.68

ii. Revisionary Power to look into Awards including Children

Taking cognizance of public policy concerns, the statute has a provision

giving a power of review to the District Court regarding child custody and
maintenance awards. This is strictly based on petition of one of the parties.69
If the party can establish that the award so directed is not in the best interests
of the child, the court can vacate the award. This was adopted to placate public
policy concerns.

V. CONCLUSION

The paper has strived to examine how jurisdictions around the world have
interpreted and applied arbitration in family law. On examination it was seen
that a multitude of jurisdictions were opening up arbitration in family law. The
paper further dealt into how the arbitrability of such a matter was resolved in
these jurisdictions and how concerns of public policy violations were placated.
In this background, the substantive law applicable to family law and arbitra-
tion was analysed and it was concluded that there was sufficient foundation
to establish arbitration in family law but there is still a need to address some
concerns. Following this, one of the most progressive legislations regarding
family law arbitration was examined. This legislation was a intricate mix of
modern progressive thinking while still retaining elements of public policy
that are necessary to propagate natural justice. India should take inspiration
from this legislation and draft a specific statute that would deal with all these,
while resolving any public policy concerns that may relevant in the context of
socio-economic conditions of the public. Such a legislation would go a long
way in resolving the logjam in the family court system and in the process giv-
ing a way to quickly resolve family disputes, that the public generally attribute
to the private domain.

68
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-56 (2006).
69
The North Carolina Family Law Arbitration Act, N.C. General Statute §§ 50-55 (2006).
 CNLU LAW JOURNAL–2020-21  231

VI. BIBLIOGRAPHY

A. Books
1. L. F. Wolfson, Family Law Arbitration in Canada (July, 2010).
2. Alan Uzelac, Transformation of Civil Justice 133 (2018).
3. D. Hodson, Arbitration in International Family Law: The English
Experience, the Worldwide Perspective and the International
Opportunities (March, 2013).
4. Loukas Mistelis And StravosBrekoulakis, Arbitrability: International
snd Comparative Perspectives, 330-341, ( 5th ed., 2009).

B. Cases
1. Renu Sagar Power Co. v General Electric, 1984 (4) SCC 679.
2. Olympus Superstructures Pvt Ltd v Meena Vijay Khetan, 1999 (5) SCC
651.
3. Petroleum Corporation v Pink City, 2003 (6) SCC 503.
4. Haryana Telecom v Sterlite Industries 1999 (5) SCC 688.

C. Journal articles
1. M. Boyd, Dispute Resolution in Family Law: Protecting Choice,
Promoting Inclusion, The Ministry of the Attorney General, (2004).
2. Kennett, It’s Arbitration, But Not As We Know It: Reflections on Family
Law Dispute Resolution,1 International Journal Of Law, Policy And The
Family ( July, 2016).
3. S. U. Gilfrich, SchiedsverfahrenimScheidungsrecht : einere-
chtsvergleichendeUntersuchung des deutschen und des
US-amerikanischenSchiedsverfahrensrecht, Tu¨bingen: Mohr Siebeck
(2007).
4. Jean. Jaurès, International Arbitration from a Socialistic Point of
View The North American Review, 188, no. 633, (1908).
5. Thomas Balch, Arbitration as a Term of International Law 7 Columbia
L. Rev.15 (1915).
6. J. Paulsson, The Idea of Arbitration, Oxford: Oxford University Press
(2013).
7. E. Andresen, State Tasks of the Public Office of Notary, Juridical
International. Law Review (2009).
232  SCOPE OF ARBITRATION N FAMILY LAW

8. George K. Walker, Family Law Arbitration: Legislation and Trends,

Acad.Matrimonial Law (2008).
9. Rebekah Bassano, Family Law and Arbitration, 1 The Proctor 36 (Feb
2016).
10. Georgialee Lang, Time Has Come: 71 Vancouver Advocate 517 (2013).
11. Lynn P. Burelson, Family Law Arbitration: Third Party Alternative
Dispute Resolution, 30 Campbell L. Rev. 297 (2008)

D. Online Sources
1. Cathy Meyer, Understanding your Final Decree of Divorce.
2. Family Law in Spain, Spanish Notaries Given Power to Grant Divorce.
3. NicuşorCracuni, The Divorce By The Public Notary Proceedings.
4. Translators, Notaries, Legalisations, and Apostillisations in Peru.
5. YudarkisVeloz Sarduy, Getting a Divorce in Cuba is Routine.
6. Anil Malhotra and Ranjit Malhotra, Alternative Dispute Resolution In
Indian Family Law – Realities, Practicalities And Necessities.
7. The New Delhi Arbitration Center, The Need for International
Arbitration Institutions.
8. P. Singhania, Foreign Awards in India.
9. Critical Analysis of Arbitration Law in India.

E. Statutes
1. The Civil Code of Spain, 1889.
2. The Code of Civil Procedure.
3. Zivilprozessordnung, 1877 ( German Code of Civil Procedure).
4. The New Civil Code of Romania, 2011.
5. The Hindu Marriage Act, 1956.
6. The Indian Christian Marriage Act, 1872.
7. The Special Marriage Act, 1954.
8. The Code of Civil Procedure, 1908.
9. Arbitration and the Conciliation Act 1996.
10. New York Convention , 1958.
 CNLU LAW JOURNAL–2020-21  233

11. The North Carolina Family Law Arbitration Act, N.C. General.
Statistics (2006).

F. Law Commission Report

1. Law Commission of India, Urban legislation Mediation as Alternative
to Adjudication, Report No. 192 (1988).
 SPECIAL MARRIAGE ACT (1954) AS A
PRECURSOR OF UNIFORM CIVIL CODE
—Brijraj Deora

“The greatest threat to our Constitution is our own igno-

rance of it.”

―Jacob F. Roecker

Abstract — This research article throws light on the importance

of the Special Marriage Act especially in context of the Article
44 of the Constitution of India. The Constitution lays Directive
Principle of The State Policy to secure for the citizens a uniform civil
code throughout the territory of India but so far it has remained a far-
fetched dream only. But few legislations are enacted which comes close
to the spirit and essence of the Uniform Civil Code. This Research
Article critically analyses one such legislation i.e. Special Marriage
Act 1954, which is predominantly considered as a precursor to the
Uniform civil Code. This research article also examines that, to what
extent the Special Marriage Act 1954 fulfils the idea enshrined under
the article 44 of Indian Constitution. The article extensively compares
this secular act of 1954 with the prospective Uniform Civil Code and
brings out the similarities as well as lacunas to held it as a precursor
of Uniform Civil Code. This article concludes with the opinion that
conservative society like India would take time to accept secular code
like UCC and therefore in order to fulfill the wish of Constitution
makers as enshrined under Article 44, need for more legislations like
Special Marriage Act cannot be much prolonged.

*
4th year BA LLB (Hons), Gujarat National Law University Gandhinagar.
 CNLU LAW JOURNAL–2020-21  235

Key Words- Uniform Civil Code, Constitution, Precursor, Marriage &

Secular.

I. INTRODUCTION: ARTICLE 44 MANDATES FOR UCC

In India, Family laws are mostly based on religious affiliations and are thus
governed by personal status laws. Some of these laws are state-enacted statues
while others are based on customary practices or religious precepts. As these
diverse laws are confusing and contradictory, and rooted in outdated precepts,
when India adopted its Constitution in 1950, a provision regarding the enact-
ment of a uniform civil code to govern family relationships was included in the
Directive Principle of State Policy.

Article 44 of the Constitution in its Directive Principles of State Policy

states that “the State shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India”.1 This, being a guideline and not neces-
sary to implement, has remained simply a directive principle and has not been
introduced in any part of the country.2

The farmers of the constitution mandated the state to make every endeavour
in this direction, in order that the new code, which initially could be optional,
will be well perceived by the masses of a pluralistic society. But apart from
enacting a few legislations like the Special Marriage Act of 1954 (an optional
civil law of marriage), no attempt has been made by successive governments in
this regard.

Even this legislation has seldom been presented as a progression towards

uniformity of rights and the controversy is kept simmering only to be brought
to a boil every now and then. From the last several decades, within a com-
munalized polity, this debate has become embroiled in the majority-minority
political dynamics. There is, therefore, the requirement to build an alternative
framework that can help us move away from this polarized equation to explore
alternative ways.

The controversy of Uniform Civil Code crop up from the three-way tension
between the traditional political impulse to leave communities alone to manage
their social life, the modernist political values of ‘rule of law’ which requires
that one law apply to everyone and that everyone should benefit equally from
the laws of the state and third, the political imperative of pleasing every con-
stituency possible. The solution in the form of compromise, adopted was that
1
Indian Constitution Art. 44.
2
1 Paras Diwan and Dr Virendra Kumar, Directive Principles Jurisprudence 57 (1982).
236  SPECIAL MARRIAGE ACT (1954) AS A PRECURSOR OF UNIFORM CIVIL CODE

the Hindu customs were codified by Indian State; special legislations were cre-
ated for governing domestic and social situations that citizens could opt for but
permitted members of religious minorities to choose to follow the rules and
customs of their community as interpreted by their community heads. Inherent
in this solution is the perception that someone else is better off than we are.

The Supreme Court’s constant lament about the state’s failure to adopt
a uniform civil code as enshrined by Article 44 has always revived a debate
but every time it is swept under the carpet.3 The entire issue has unfortunately
been distorted and misdirected from its very inception. Ideologues have delib-
erately used it as an instrument with which to beat the minorities, and espe-
cially Muslims, through the threat of a majoritarian homogenising principle
destructive of the precious identity markers seen in the existing diversity of
personal laws.

II. SPECIAL MARRIAGE ACT: SPIRIT AND

SOUL OF UNIFORM CIVIL CODE

However, it will be injustice to hold that there has been no development

in India in making laws that are uniform across religions and cultures. One
such example of this is the Special Marriages Act, enacted by the Parliament
in 1954, which has the essence of Uniform Civil code to a great extent. This
act was enacted to provide for a special kind of marriage by anybody living in
India or by Indian nationals living abroad, irrespective of what religion both
the parties to the marriage belong to. In many ways, the Special Marriage Act
is a common code for the marriage across different religions and thus, sim-
ilar to the Uniform Civil Code in spirit.4 But the matter of great concern, as
the senior counsel and eminent legal jurist Ram Jethmalani says, is that only
few people take recourse to it, and those who are one who do not necessarily
believe in religious solemnization of marriage.5 Therefore, it is imperative to
look for questions like, whether the Special Marriage Act is actually similar
to the Uniform Civil Code and whether it has actually liberalised and bought
forth a common civil law in India?6

3
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : AIR 1985 SC 945.
4
Kameshwar Choudhary, “Anatomy of the Special Marriage Act”, 26(52) Economic & Political
Weekly 2981, 2983 (1991).
5
Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism and the
Uniform Civil Code, 249.
6
Shiv Sahai Singh, Unification of Divorce Laws in India 287-288 (Deep & Deep Publications
1993).
 CNLU LAW JOURNAL–2020-21  237

A. It liberates individuals from traditional formalities

Special Marriage Act is a kind of legislation which intends to liberate indi-

viduals from the traditional knots and coercive collectivities in the matter of
marriage and thereby recognizes the independence of individuals in the soci-
ety. It is also criticized to the ground that the formalities attached and pro-
cedure prescribed for special marriages under this act, provides enough time
and scope for family; caste and community to harass those who wish to take
recourse to the act.7 As per the personal laws, a Muslim can marry a Hindu
only if one of the party converts to the religion of the other. But, a way out
to this problem can be traced on the Special Marriage Act. This act only pre-
scribes the condition of mutual consent among parties, soundness of mind and
certain procedural requirements.8 Therefore, this act provides for completely
different recourse where there are no religious requirements, which are of par-
amount consideration in the personal laws. Thus, a sound mind person of any
religion having prerequisite age can validly solemnize his/her marriage with-
out any hindrance. It can be validly concluded that the marriage prescribed
under this Act is not ritual centric and is not based of age old customs and
ceremonies.

The concept of traditional marriage involves two families of same reli-

gion or community, thus the ‘social domain of marriage is circumscribed
which partly contributes to the prevalence of the evil of dowry.9’ Whereas,
the Special Marriage Act 1954 envisages a situation of marriage between any
two persons irrespective of their caste and religion.10 Thereby, it recognizes the
independent identity of individual and liberates him/her from traditional coer-
cive collectivities in the matter of marriage. But as a matter of concern, it can-
not be denied that the audience actually, this act could target is very small in
number as only few citizens have took recourse to it so far.

B. Compulsory registration of marriage performed under this act

Special Marriage Act also prescribes for essential registration of a marriage

solemnized as per this act, which is not the necessary requirement of other
legislation like Hindu Marriage Act.11 It is the only ceremonial necessity pre-
scribed by this act. However, it is not necessary to be from separate religions
to get married under this act, which means two Hindus can very well decide
to get married under this act instead of the Hindu Marriage Act. Therefore, all

7
Kameshwar Choudhary, “Anatomy of the Special Marriage Act”, 26(52) Economic & Political
Weekly 2981, 2983 (1991).
8
J. Duncan M. Derrett, “Private International Law and Personal Laws (Based on Duggamma v.
Ganeshayya)”, 14(4) The International and Comparative Law Quarterly, 1370-1375 (1965).
9
Ibid.
10
Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).
11
Broja Kishore Ghosh v. Krishna Ghosh, 1988 SCC OnLine Cal 99 : AIR 1989 Cal 327.
238  SPECIAL MARRIAGE ACT (1954) AS A PRECURSOR OF UNIFORM CIVIL CODE

marriage solemnized under this act requires compulsory registration whereas

it is optional in most personal laws.12 In personal laws the requisite condition
for marriage is that it should take place as per customs and practices of the
said religion.13 Thus, it is practically difficult to keep count of the number of
marriages taking place and also when there is no legal record it is also difficult
to protect rights of the people in such a model. But compulsory registration
creates a way out for this and makes it easier to keep count of marriages and
in case of abuse of it, relief can be granted quickly as the magistrate records it
and thus it can effectively prevent the abuse in many situations.14

C. Protects the property rights

Another significant feature of this act is that it allows people of different

religions to marry without converting, which essentially protect the right of
such person in the property that he would have inherited.15 This would not
have been the case in the personal laws, where if any person converts into
the religion of spouse, such person shall lose all claims over the property he
was getting in inheritance. Although this Special Marriage Act has a number
of features and benefits but the major advantage brought to the society is the
secular character of this act. In conservative society, mixed marriages always
cause a great degree of hue and cry and therefore Special Marriage Act has
to some extent, been able to provide machinery but, again the problem lies in
the fact that only eloping couples avails it and that too mainly because they do
not want to face their orthodox families with the proposition. Therefore, it is
not well accepted in society yet and the public shall react very similarly to a
Uniform Civil Code. In this regard, this act has the essence and spirit of the
Uniform Civil Code and hence, it is been widely recognized as the precursor
of Uniform Civil Code.

III. SPECIAL MARRIAGE ACT AS A

PRECURSOR OF UNIFORM CIVIL CODE

The framers of the Constitution have promised the Uniform Civil Code to
the Citizens of India and therefore the State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India. The authors of
the Indian constitution, by the term ‘Uniform Civil Code’ envisaged a com-
monly enforceable set of laws governing marriage, divorce, adoption, inher-
itance and other familial and personal matters. But, even after long span of
60 years from independence, Indian Legislature could not fulfill this promise
12
Kameshwar, supra note 7.
13
Deoki Panjhiyara v. Shashi Bhukrishan Narayan, (2013) 2 SCC 137 : AIR 2013 SC 346.
14
Olivier Herrenschmidt, “The Indians’ Impossible Civil Code”, 50(2) European Journal of
Sociology, 309-347 (Jewish Institutions and Practices 2009).
15
V. Siddhartha, “Special Marriage Act, 27” Economic & Political Weekly 66, (1992).
 CNLU LAW JOURNAL–2020-21  239

for several political and social reasons. Except a few legislations like Special
Marriage Act 1954, no significant enactment could be found on the lines of
Uniform Civil Code. It is undeniable that India’s long history of cultural and
political pluralism does not permit for the immediate imposition of such a
code. No previous pan-Indian polity had imposed such a code, preferring for
the most part to let communities follow their ways, even when they were found
abhorrent. The British were more or less the first to interfere in social custom
by enacting change in the abolition of sati, child marriage etc. Even they did
not intervene in other matters such as polygamy, triple talaq, Hindu Undivided
Family etc. Thereafter, Indian legislature came up with secular legislation of
Special Marriage Act 1954. It is therefore, one such legislation that provides
way out for marriages out of the religious boundaries. It is thus, many times
recognized as the precursor of the Uniform Civil Code. Some of the features
that justify its recognition are:

A. Secular Nature

It has been a popular consensus that the Special Marriage Act is similar
to what the Uniform Civil Code would be. To further strengthen this, it is to
be noted that both these legislations disregard religious boundaries. Like the
Special Marriage Act is a form of secular code for marriages, in the similar
manner the Uniform Civil Code shall also be a code transcending all religious
boundaries for personal laws. Another similarity between these two legislations
lies in their subject matter, where both deals with personal laws of marriage,
divorce and the like. It is not just limited to their subject matters, but many
other provisions of the Special Marriage Act are similar to what a potential
Uniform Civil Code would contain.16

When the Special Marriage Act was passed in 1954, it was not at all well
accepted by the people. As soon as this act was enacted, there was a great
hue and cry about it, especially within religious minorities like Muslims. It
was felt by these religious minority groups that it is a deliberate step to sup-
press their religious freedom and force a secular code.17 India during that Post-
Independence period was facing great turmoil and communal trouble and thus,
this laid to tension over the questions like, Should the Uniform civil Code be
adopted as envisaged under article 44 of Indian Constitution? The extent, to
which people were adhered to their personal laws, makes it difficult to bring
uniformity in the diversity of personal laws. The acceptance of such code
was another ordeal looking at prevalent Indian society. Loss of culture was
the most prevalent fear amongst all major religions. Religious minorities like,

16
Flavia Agnes, “Hindu Men, Monogamy and Uniform Civil Code”, 30(50) Economic &
Political Weekly, 3238-3244 (1995).
17
Shabbeer Ahmed and Shabeer Ahmed, “Uniform Civil Code (Art. 44 of the Constitution) A
Dead Letter”, 67(3) The Indian Journal of Political Science, 545-552 (2006).
240  SPECIAL MARRIAGE ACT (1954) AS A PRECURSOR OF UNIFORM CIVIL CODE

Muslims were entrenched with the belief of superiority of their religion and
any step towards its religious practice seems like threat to them. This is one of
the major reasons why orthodox Muslims preclude themselves from accepting
Special Marriage Act even today.

B. One law for all

Adding to the list of similarities, Uniform Civil Code also does not supports
the idea of plurality of laws. Like SMA provides validity to each and every
legal marriage which could not fall under ambit of valid marriage by personal
laws, UCC, if enacted would also abolish innumerable personal laws and estab-
lish a common code for all religions. Essentially, Special Marriage Act brings
different subject matters (like Hindu, Muslims etc.) within the preview of sin-
gle legislations and hence provides for similar treatment to all with regard
to the issue of marriage. Uniform Civil Code would also seek to achieve the
same status, though on larger scale, with regards to the laws governing mar-
riage, divorce, adoption, inheritance and other personal and familial matters.
Therefore, to the great extent, Special Marriage Act is, one of the few existing
legislations, having the spirit of uniform Civil Code.

IV. CRITICISM: SMA LACKS THE

ESSENCE OF UNIFORM CIVIL CODE

However, there are various criticism to these beliefs also, which says that
Special Marriage Act cannot be a precursor to the Uniform Civil Code and can
in no way justify the impact a UCC will have on the nation.

A. Special Marriage Act is an optional code

Foremost among these criticisms is that Special Marriage Act is an optional

legislation where only people who willing to marry outside their religious cus-
toms and traditions and are thus voluntarily taking recourse to it would be
affected by its provisions. Whereas if Uniform Civil Code implemented, it will
not be an optional code and thus it shall be binding on all citizens of India. It
will not provide any choice of taking recourse to it or not but would mandato-
rily bind everyone coming under its preview.18 Primary reason behind it is that
an optional code would prove to be a redundant legislation where everyone is
continuing with their personal laws and therefore it would not serve any pur-
pose. Also the compulsory nature of code will completely deprive people from
following their religious practice and therefore would ignite communal unrest

18
S.S. Nigam, “A Plea for a Uniform Law of Divorce”, 5(1) Journal of the Indian Law Institute,
47-80 (1963).
 CNLU LAW JOURNAL–2020-21  241

and disharmony.19 Another view says that it will lead to feeling of arbitrarily
imposition of Hindu law upon minorities. Whereas SMA does not give rise to
such feelings as it is optional.

B. Distinct nature of both legislations

Another significant difference between the Special Marriages Act and the
prospective Uniform Civil Code is the nature of these two legislations. The
Special Marriage Act is a procedural law that prescribes the procedure to sol-
emnize marriage under it. Whereas the UCC shall be a substantive law, incor-
porating all necessary rules, regulations and codes of conduct to be followed
by people of all religions. Thus, for example, the UCC shall prescribe the laws
for property division whereas the SMA simply states the procedure one needs
to follow (like signing the papers) under property law of one’s own religion
after marrying with person of different religious affiliations. Therefore, SMA
does not bring a new set of rules, it simply provides a way out for people to
marry outside their religion. Special Marriages Act nowhere affects the Hindu
Code Bill or the Sharia Law of Marriage but UCC would exactly do so, if it
comes into effect, as it will introduce new set of rules. As long as legislation
does not affect the existence of personal laws, it is accepted by the masses
atleast moderately. But a staunchly religious country like India has in no way
been prepared for a complete overturning of their lifestyle with reference to
their personal laws. And until any legislation does that, it cannot be termed as
a precursor to the Uniform Civil Code.

V. NEED OF SECULAR LEGISLATIONS LIKE SMA

A. The problem with personal laws

After the commencement of Indian Constitution, the foremost legislations

that were enacted along the religious lines were the Hindu law reforms of the
1950s. Although these are widely construed as a clear violation of Articles 14
and 15 of the Constitution (equality and non-discrimination on the basis of reli-
gion), the applicability of this law is over 80% of our population. Therefore
the question that crop up, whether it has helped bring social transformation
and changed gender relationships within Hindu society becomes critical. On
some occasions, the continuation of the Hindu Undivided Family property is
perceived as its main lacuna. However, several discriminatory aspects of the
Hindu cultural ethos that govern the Hindu law of marriage, divorce and matri-
monial life are seldom held up for scrutiny.20
19
Syed Nadeem Farhat, “Hindu Marriage Law: Need, Impediments and Policy Guidelines”,
12(2) Policy Perspectives, 131-146 (2015).
20
Flavia Agnes, “Hindu Men, Monogamy and Uniform Civil Code”, 30(50) Economic and
Political Weekly, 3238-3244 (1995).
242  SPECIAL MARRIAGE ACT (1954) AS A PRECURSOR OF UNIFORM CIVIL CODE

Taking the case of Muslim laws also, the Maintenance to divorced Muslim
women granted through the Shah Bano ruling21 in 1985 was opposed by the
community, who then brought about a legislation—the Muslim Women’s Act
of 1986—which denied Muslim women the right of maintenance under the uni-
form statute, Section 125 of the Criminal Procedure Code (CrPC).22 Through
a progressive interpretation of this Act in Daniel Latifi (2001), the Supreme
Court (as well as various high courts) upheld the right of divorced Muslim
women to a fair and reasonable settlement for life. This right of settlement
is far superior to the earlier one under the secular statute, Section 125 of the
CrPC.

If it is accepted that all personal laws, customs and practices are patriarchal,
where does the process of change to bring in gender-just laws begin? Here, we
must accept two premises: First, our laws are uniformly gender-unjust. They
contain specific forms of gender injustice and each must be addressed within
its own specificity.

Second, law is dynamic and gets formulated within the contested terrain of
litigation. Our Constitution provides us the yardstick for testing its gender dis-
crimination. A Supreme Court verdict is the law of the land, and one from the
high court is binding on all lower courts under its jurisdiction. This provides
scope to challenge the specific oppressive provision.

B. The Way Forward

Another strategy to break the stalemate is to enact specific legislations,

which will apply to women uniformly across communities. Therefore in order
to address these kinds of issues, a uniform legislation should be enacted which
shall apply to all masses without any restriction of cultural and religious
boundaries. After independence one such attempt made was the enactment of
Special Marriage Act 1954.23

Though this act being an optional code provides way out to various issues,
it appears to suffer from disuse due to its stringent procedure for registering
the marriage. No efforts seem to have been made to make this law relevant to
those venturing into inter-religious marriages, which have now been given a
communally-tinted term, “love jihad”. So, despite the prevalence of this Act,
conversion and hasty marriage seems to be the only option for those venturing
into marriages of choice against the wishes of their parents.24 In a communally
21
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : AIR 1985 SC 945.
22
Shiv Sahai Singh, Unification of Divorce Laws in India 287-288 (Deep & Deep Publications
1993).
23
M.P. Jain, “Matrimonial Law in India”, 4(1) Journal of the Indian Law Institute, 71-98 (1962).
24
“Not Made in Heaven: Changing Marriage Laws will not Necessarily Make Marriages More
Equal”, 48(37) Economic and Political Weekly, 8 (2013).
 CNLU LAW JOURNAL–2020-21  243

charged atmosphere, the one-month notice period stipulated under the Act may
pose a threat to the life of the couple. There is an urgent need to modernize
and popularize this statute.

Therefore, this discontentment gets projected in public discourse as a con-

cern for the plight of victims of personal laws, who need to be liberated from
their barbaric laws through the enforcement of a uniform civil code and many
more legislations like Special Marriage Act 1954.

VI. CONCLUSION

Therefore the debate regarding whether the Special Marriage Act can be
termed as a precursor to the Uniform Civil Code is endless. But it is certainly
clear that, in a country like India, implementation of the Uniform Civil Code
is a huge task and it would require complete acceptance from people in order
to avoid uproar after implementation. Though the Special Marriage Act is
a great development in the legal regime of India, it being optional legislation
does not requires such a strong support from the masses. The idea of Uniform
Civil Code envisages that all religions shall be bought to the same level by the
mechanical implementation of one uniform code of personal laws throughout
the whole country. However, it seems a far-fetched dream even today, as the
minorities, particularly the Muslims, fears that the character of their religion
would lost its importance if the personal laws are scratched. Therefore, one
optional legislation like the Special Marriage Act is not enough to ensure that
the country is ready for the UCC; it is a process that has to be bought about
slowly. A number of similar legislations need to be enacted, implemented and
accepted by the Indian masses for a Uniform Civil Code to be possible, even
in the near future.
 LOCAL WORKING REQUIREMENTS IN THE
PATENTS ACT, 1970: A CRITICAL ANALYSIS
—Sakshat Bansal* & Ananya Vajpeyi**

Abstract — India, as a developing nation has tried to strike

a balance between the interests of its citizens and intellectual
property owners, despite facing extreme pressure from the developed
countries. Building on this notion, importation never sufficed as working
of a patent locally since it, along with being detrimental to the economy
in the long run, robbed a nation of an opportunity to build capacity
for manufacturing a patented invention locally. There is historical
evidence that the Indian diplomats and law makers were of the same
opinion and envisioned a nation that took full advantage of a foreign
patentee. Despite such historical development, the Indian Judiciary,
recently, set a precedent that allows a patentee, to get away satisfying
the public demand only through importation. What it necessarily means
is that there is no compulsion to manufacture locally, rather it must be
decided on a case to case basis. The reason which they give to justify
their position is the economies of scale argument which only looks at
the economic viability of manufacturing the patented invention locally.
This vague approach of the court leaves a lot of room for exploitation
by the patentee since now he is in a position to take advantage of the
atmosphere of no compulsion. To avoid such a situation in the absence
of guidelines from the court, this paper attempts to turn the direction
of scholarship towards a concrete and fair approach by listing out
other factors that must be considered while deciding an application for
compulsory licencing and filing Form 27.

*
Assistant Professor, Jindal Global Law School, Ph.D. Scholar at NLSIU, Bangalore.
**
Student, Fifth Semester, B.A. LL.B.(Hons), Jindal Global Law School.
 CNLU LAW JOURNAL–2020-21  245

I. INTRODUCTION

The basis of communication is perception. When we express our ideas to

another person, the burden on the listener is how he interprets and understands
them, while the burden on the speaker is to express his intention clearly. If
we look at it historically, when this process goes wrong, it can lead to cata-
strophic state of affairs. This transudes, from the situation of a conversation to
the development of an idea from its historical basis. It might happen at times,
that historically an idea was meant to be something else, but over time, with its
varied interpretations, it ends up being contrary to what gave birth to it. This
paper intends to focus on a very similar situation which has occurred in India
recently. The year 2014 was vital for the realm of intellectual property protec-
tion in our nation, as it stood witness to a case which gave quite an antithetical
interpretation to the existing law1.

The law in question is Section 84 of the Indian Patents Act of 19702, which
talks about compulsory licensing. It states 3 grounds for the grant of such
license – (i) the satisfaction of the requirements of the public; (ii) the patented
invention is not available at reasonable prices and finally, (iii) the patented
invention is not worked in the territory of India3. The third one is the point
where we begin our analysis. ‘Worked’ as a word of law, can have a very wide
meaning, including numerous commercial activities which can pass muster
as utilization of a patent. The contention has always been whether importing
the product from other nations and not manufacturing it locally can suffice as
‘working’ of the patent in the territory of India.4

Coming back to the case mentioned above, Bayer Corpn. v. Union of India5
(hereinafter Bayer case) in 2014, held that a patentee can be exempted from
local manufacture if they are able to show proper cause. It is one of the mul-
tiple aims of this paper to prove that since this position taken by the court is
contrary to the historical intention of the Indian diplomats and law makers
who view compulsory local manufacture as the key to utmost benefit of the
economy, the refusal to grant a compulsory license on the basis of non-work-
ing, has to be done with extreme caution. The court has mis-interpreted what
this law was meant to be and as result, bestowed a spear of exploitation in the
hands of multinational pharmaceutical companies.

1
Bayer Corpn. v. Union of India, 2014 SCC OnLine Bom 963 : AIR 2014 Bom 178.
2
Patents Act, 1970, S. 84.
3
Patents Act, 1970, S. 84(1).
4
B.N. Pandey, Prabhat Kumar Saha “Local Working under the TRIPS Agreement:
Flexibilities and Implications for India” (2018) 60/3 JILI <http://14.139.60.114:8080/jspui/
bitstream/123456789/47597/1/020_Local%20Working%20Under%20The%20Trips%20
Agreement%20Flexibilities%20and%20Implications%20For%20India%20%28312-331%29.
pdf>.
5
Supra note 1.
246  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

This fear of exploitation is one of the most prominent motivations for writ-
ing this paper along with the intention to organize and contribute to the exist-
ing pool of knowledge. In order to achieve this, we have divided this paper
into 4 parts. Part 1 attempts to give the reader a theoretical understanding of
what the problem is along with the contrasting stances taken by the developed
and the developing nations. This will be followed by Part 2, listing the evi-
dence we have found in order to interpret the historical intention of Indian law
makers and diplomats. Part 3, after this, will be an attempt at explaining the
facts and judgment of the Bayer case and how it has led to its antithetical con-
clusion along with which it will also attempt to showcase the case to case basis
approach put forward by the court. Part 4, is where we highlight the need of
detailed guidelines to deal with the gap left open by the court and list out fac-
tors the must be considered, attempting something that has not been discussed
by scholars until now, turning the spear of exploitation into a gift benefiting
both the giver and the receiver. This suggestion is put forward, keeping in
mind that international politics is a web of agendas, and agendas change time
and again. The historical intention might be contrary but it cannot be allowed
to become an impediment to ultimate benefit. Moreover, it must be clarified
that the suggestion does not necessarily advocates compulsory local manufac-
ture, rather it focuses on ensuring that patentees act in the most honest and
reasonable way possible while filling and filing Form 27.

For this, the methodology we have used is Descriptive and Analytical Legal
Research, combined with Applied and Pure Legal Research. The initial part
of the paper uses the former while the later can be seen towards the end. We
start with the description of existing evidence for understanding the historical
intention of the Indian diplomats which will then be analysed in a way to con-
clude that importation was never a part of working a patent on Indian territory.
This is followed by the elaboration of the judgment, still under the influence of
the descriptive method followed by a critical analysis of the same. The Applied
and Pure research method is evident in the last part of the paper, where we
have tried to propose a new solution to the existing legal contradiction. There
are certain factors that must be kept in mind while granting or refusing a com-
pulsory license where the grounds of non-working are invoked, or else the
patentee might be in a position to take advantage of the country’s expanding
markets without any actual transfer of technology.

It is also vital to mention that the evidence collected has been analysed
through an inductive approach. This basically means that we have gone from
observing particular instances to reach a definite conclusion which opened a
gateway to caution as we looked at the judgement of the court. This has helped
us in finding the focal point of our research along with the motivation to mini-
mize exploitation.
 CNLU LAW JOURNAL–2020-21  247

In addition to this, one must note that both secondary and primary sources
have been used in the formulation of this research paper.

II. A THEORETICAL UNDERSTANDING

OF THE PROBLEM

Before we delve into the matters of evidence, intentions and baffling prece-
dents, let us look at some basic definitions, views, pros and cons, the existing
literature has to offer in the matter of importation as working of a patent in
India. Beginning from what patent law is and why does is it garner so much
importance in the international sphere, we will go into the vitality of working
requirements and how do the current international conventions make room for
them, in developing nations particularly, and finally, sum up with the debate
between the developed and developing nations that has prevailed for quite
some time.

To understand the need of patent law and local working requirements, the
best approach will be to understand the two kinds of ways to look at the law
of patent protection6. One view looks at it as a bundle of rights, while the other
one treats it as an obligation on the patentee.

The first view is a comparison between the right to own private prop-
erty and the ownership of a patent. They can be equated on the grounds that
both enable the owner or the patentee to exclude a third party’s right over
their property. This view does not cast any obligation on the patentee, merely
bestows him with protection for his invention. This can be used to understand
the need of patent of law. The other important factor which can be used to
understand the vitality of patent law is incentive creation7. If a person makes a
quantum leap in his field through innovation, the world will definitely welcome
the idea with open arms, often resulting in easy duplication or imitation of the
invention proposed. This will harm the interest of the inventor as he gets no
benefits out of his efforts, discouraging innovative thinking. To prevent such
a situation from arising, a right to exclude others from using his invention is
given to him through a patent. The exclusion of the public at large from rev-
olutionary information is a social cost the market has to pay for progress. In
addition to this, we must discuss the principle of ‘national treatment’ which
establishes the general principle of necessary protection to all innovators,
domestic or foreign.8 This is enshrined in Article 27.1 of the TRIPS agreement

6
Feroz Ali, “Picket Patents: Non-Working as an IP Abuse” (2016) 12 Indian J L & Tech 1.
7
Kumariah Balasubramanium, “Pharmaceutical Patents in Developing Countries: Policy
Options” (1987) 22 Economic & Political Weekly.
8
Supra note 7.
248  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

which ensures that there is no discrimination between a patentee of foreign ori-

gin and a domestic one.9

Now that we have understood the general level of protection given, we must
understand the exception and the reason for such deviation. For this, we will
look at the second view through which we can look at intellectual property
protection, discussed above, which entails that the complete picture of pat-
ent law can be painted only when we consider it as an obligation along with
it being a bundle of rights.10 Under this view, the rights and incentive of the
patentee is given importance, but is contrasted with the need of the public. It
casts an obligation on the patentee, making them responsible for the sufficient
diffusion of knowledge to the pool of ideas of the nation that grants the patent
and also benefit it commercially.

This is the exception to the general rule of giving equal protection to all.
When a foreign agent demands a patent in the territory of a nation, that nation
has the right to demand from the patentee a promise to benefit their economy,
at the failure of which the exclusionary right given to the patentee can be taken
away.11 This is what used to happen earlier, known as the forfeiture of a patent,
which was later abolished after the Paris Convention in 1883.12 As an alter-
native, compulsory licensing was proposed13. But before we go into that, we
must understand the theory behind attaching such a covenant to the bundle of
rights that is a patent. There is always an underlying intention of the patent
granting nation to make full use of the knowledge that is being patented14. This
intention then translates into being the local working requirements of a patent.
Through these requirements the domestic law of a nation ensures that when
an innovation enters their market, the know-how of it is completely diffused
into their knowledge pool along with it benefiting the economy by providing
employment. Local working will generally refer to the patent being commer-
cially exploited, which is a very broad term and can also include importation.
But as soon as importation is involved, it can lead to a situation where the
product is not manufactured locally at all, creating a state of affairs where the
diffusion of knowledge is impaired. However, one must contrast this situation
from one where manufacturing patented invention locally is compulsory in law
but not feasible in practice.

To protect the interests of the patent granting nation, in light of the above
argument, the international standards, specifically the Paris Convention also

9
TRIPS: Agreement on Trade-Related Aspect of Intellectual Property Rights (1994) Art. 27.1.
10
Supra note 6.
11
Malet Arega, “Defending Local Working” (2019) 10 Am U Intell Prop Brief 28.
12
Ibid.
13
Ibid.
14
Bernard Olcott, “Realistic Aspects of Working Foreign Patents” (1963) 45 J Pat Off Soc’y 315.
 CNLU LAW JOURNAL–2020-21  249

allows the nations to define ‘local working’ according to their own needs.15 It
can be argued against the general belief that local working requirements are
always economically unfavourable as they discourage foreign agents from
entering the domestic market, by pointing out the fact that such require-
ments must be viewed in the context of the local conditions.16 The Ayyangar
Committee report correctly points out the fact that even though this can be
beneficial for all in the short run, it will harm the economy of the patent grant-
ing nation in the long run.17

This begs the question that since local working requirements falls under the
domain of post grant liability rule, what are the consequences when there is a
violation in completing these requirements? We have mentioned it above briefly
as compulsory licensing. It is a right that the patent granting nation retains and
can be utilized on various grounds including the ‘non-working’ of a patent. It
allows a third person the access to the patented product or process, making
imitation easier, in exchange for a remuneration to the patentee. This was an
attempt at striking a balance between complete revocation of a patent and the
interest and incentive of the patentee.18

Up to this point in the paper, we have elaborated upon what the basic terms
of law that define the local working of a patent, are. This must be followed by
the policy consideration of a developed and a developing nation. The developed
nations are the hub of technological innovation, progressing rapidly in leaps
and bounds. It then goes without saying that they would want less stringent
working requirements as they would be able to manufacture it locally and then
sell it in the international market. The developing countries on the other hand
would be in favour of strict working requirements, trying to extract as much
benefit as they can from the grant of a patent. The historical evidence of this
can be inferred from one instance where between 1900 and 1958 the developed
countries had an absolute majority in the international conventions, there were
multiple attempts at ensuring more freedom for the patentee.19 Gradually the
participation of the developing nations increased and it was after the signing of
the TRIPS and the Doha Declaration that the considerations of the developing
nations came into lime light and they were given enough room to alter domes-
tic law accordingly.20 They need to ensure transfer of technology, sufficient
availability of the product and developing a capacity to locally manufacture the
patented innovation through their domestic law.21
15
Paris Convention in its Article 5-A (2) reads – “Each country of the Union shall have the
right to take legislative measures providing for the grant of compulsory licences to prevent the
abuses which might result from the exercise of exclusive rights conferred by the patent.”
16
Supra note 6.
17
Ayyangar Committee Report, 1959, Para 30, p. 15
18
Supra note 6.
19
Supra note 7.
20
WTO Ministerial Declaration of 14 November 2001 (Doha Declaration).
21
Supra note 4.
250  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

In light of this intention, importation in no way could be seen as some-

thing that is sufficient for local working. However, under the pressure of the
developed, the developing have lost their bargaining power and conceded to
less stringent working requirements which now can include importation as suf-
ficient working of a patent22. In addition to this, both the sides have tried to
argue their stance based on Article 27.1 of the TRIPS agreement. The devel-
oped, on one hand, argue that 27.1 leaves no room for allowing working
requirements in the domestic law, developing, on the other hand argue the con-
trary. This conflict was deepened by the presence of Article 5A of the Paris
Convention which ensured that the member nation would be able to regulate
abuses of the granted patent. A deep analysis of both these Articles indicate
that non-discrimination, as mentioned in Article 27.1, is the general rule to
which Article 5A is the exception. This is concluded with the idea of balancing
public policy objectives with international agreements, in mind. In addition to
this, it is also supported by the objective of the Doha Declaration which stood
for enabling the member nations to decide the grounds on which compulsory
licenses can be granted. It is at this juncture, that one must remind themselves
of the fact that the basic purpose of TRIPS was to ensure easy transfer and
dissemination of technology as highlighted in Articles 7 and 8. In this context,
the question that arises is that how can one assume that TRIPS envisioned no
local working requirements?

III. THE ORIGINAL INTENTION

It is finally time for us to look into the evidence which will rid the mind of
any doubts about India’s protective stance since the beginning of international
politics for the nation, which was specifically against importation as working
of a patent. The advocates of the court’s decision in the Bayer Case might
argue that if India was so worried about the foreign manufacturers entering
the territory and taking advantage, why did they agree to sign the TRIPS in
the first place which forced the lawmakers to relax numerous requirements,
increasing the incentives for the patentees but at the same time putting the
domestic market at risk? We have already seen in the section above that local
working requirements are in fact allowed by TRIPS, however along with this,
we will also try to explain how India had no other option but to change its
stance at the international front during the Uruguay Round, despite which, it
still maintained its strong position against importation particularly.23

22
A.V. Ganesan, “Negotiating for India” in Jayashree Watal and Antony Taubman (eds.) The
Making of the TRIPS Agreement: Personal Insights from The Uruguay Round Negotiations
(2015).
23
Supra note 22.
 CNLU LAW JOURNAL–2020-21  251

The root of India’s position against importation as working of a patent, lies

in the Ayyangar Committee Report of 195924. After independence, the govern-
ment felt that India required a revised and more consolidated Patent law, for
which it appointed, first, the Bakshi Tek Chand Committee followed by Justice
N. Rajagopala Ayyangar Committee. It is the second one that made sure that
importation was never considered as working of a patent.

It starts by acknowledging that absence of local manufacture is not always

harmful as it tends to locate the industry in a place where it is most commer-
cially viable.25 But let us consider the theory we have mentioned above, the
theory that local working requirements were to ensure that the patent granting
nation extracts as much benefit as they can out of the foreign product being
introduced in their market. Based on this, the report lists out the following
benefits of local manufacture – (1) saving foreign exchange, (2) the absorption
of surplus labour, (3) the utilization of the country’s scientific and technical tal-
ent, (4) utilization of material not being used up till now, which would also
have beneficial consequences for other industries, (5) the increase in the techni-
cal know-how of the nation due to the establishment of a new industry, (6) the
utilization of bye-products which will lead to a diversified economy, (7) greater
security particularly in emergencies and economic independence arising out of
self-sufficiency.26 No country having a sophisticated foreign policy, would opt
out of these benefits and secure a foreign agent, until and unless it is subject to
high international pressure. The developed nations ensure that their own mar-
kets are protected to the highest extent, meanwhile they gear up to penetrate
and take advantage of the markets that the developing nations offer. This can
be seen from an instance cited in the report which shows us the reality of the
market politics developed nations engage in. It mentions a statement by Floyd
L. Vaughan speaking about the Patent in law in the United States, he says, “it
is a contravention to our patent law and economic injustice to the American
manufacturer to allow a foreigner to take out a patent in this country merely
for the purpose of reserving the United States as a market for his patented
product, which is manufactured abroad exclusively.”27 Further, the report men-
tions that allowing such patent will benefit the economy of the home country
to which the foreign agent belongs with little to no advantage for the country
granting the patent28. In addition to this, it also talks about a possibility where
such patent can be misused in order to deliberately harm the economy of the
patent granting nation. After a glance at this report, it must be clear that there
always has been a greater benefit with not allowing importation as working of
a patent and that India was definitely being pushed to oppose this idea since
the very beginning.
24
Ayyangar Committee Report, 1959.
25
Ayyangar Committee Report, 1959, Para 30, p. 16.
26
Ibid.
27
Ayyangar Committee Report, Para 32, p. 16.
28
Ayyangar Committee Report, Para 38, p. 18.
252  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

At this juncture, we must move on to the time where India was negotiating
its patent law on the international front before the signing of the TRIPS. This
is vital in order to understand that even though India caved under the interna-
tional pressure created by the United States and signed an agreement which
made its patent protection even more stringent, it remained opposed to the idea
of allowing importation as working of a patent. For this, the best source would
definitely be the personal account of the man who negotiated on India’s behalf
at the battle ground of diplomacy. Mr. A.V. Ganesan was the man behind the
negotiation which made India enter a completely different realm of patent pro-
tection. In his personal account, he recollects the time when he was framing
India’s stance at the Uruguay Round. He clearly expresses India’s reservation
about signing a single undertaking comprising of agreements affecting numer-
ous sectors, forcing the member nations to view the Uruguay Round as a pack-
age deal.29 First and foremost, India was reluctant about having a stringent
patent protection as it felt that it would make it impossible for the government
to ensure affordable health care for its citizens.30 Before the Act of 1970, India
had the Patents and Designs Act of 1911 which did nothing for local manufac-
ture and made the India Pharmaceutical market reliant on importation. This led
to massive lobbying in favour of local manufacture. Thereafter, came the new
Act of 1970 which proved to be turning point for the pharmaceutical industry,
which then progressed in leaps and bounds.31 Being subjected to such a strong
history in favour of producing products within the territory, it becomes more
or less obvious that India would never have agreed for something that dragged
it back into the vicious circle of reliance on importation.

Coming back to the previous point, if India was sceptical about stringent
patent protection then how did it agree to sign the TRIPS agreement? This can
be understood with the help of a picture that was hung in the office of Carla A.
Hills, the chief negotiator on the behalf of the United States at that time. It is
the scene where President Bush is handing her a crowbar, telling her to make
good use of it.32 The crowbar in the picture is nothing but Section 301 of the
Omnibus Trade and Competitiveness Act of 1988. It authorized US to retaliate
against any nation that violates international trade agreements33. This is suf-
ficient to understand the manner in which the Unites States must have nego-
tiated during the Uruguay Round, pressurizing the developing to mould their
law, ultimately benefitting the developed. India, despite its tempting offer of
expanding markets and surplus labour, fell victim to this crowbar. Mr. Ganesan
recalls that India was under pressure as the US threatened harm to its garment
exports. Not only this, our nation also had many academic tie-ups with the US

29
Supra note 22.
30
Ibid.
31
Supra note 6.
32
Louis Uchitelle, “A Crowbar for Carla Hills” The New York Times (10 June 1990).
33
Omnibus Trade and Competitiveness Act, 1988.
 CNLU LAW JOURNAL–2020-21  253

between universities and governments which were also at the threat of ending
if it did not sign the TRIPS.34

Another factor responsible for this change was that up to this point India
has not opened itself to the global economy and even though it was still far
from it, they had started taking initial steps in that direction.35 This change
in approach forced India to maintain a cooperating stance in front of other
nations or it would have harmed India’s future in the global economy. In addi-
tion to this, other developing nations had started caving under the pressure of
the threat of retaliatory actions of the US and it was a matter time before they
dissuaded from their stance against stringent patent protection.36 This change
in stance was met with opposition on the home front. The domestic produc-
ers were not happy and so was the poor public who saw expensive healthcare
in the near future.37 While this happened, it was clear that India at this stage
was not worried about importation as it saw no reason for the foreign agent to
not manufacture in their territory, giving credit to their unexplored expanding
domestic market and increasing labour force38. This assumption can be taken to
mean that India had envisioned that they had full capacity to manufacture and
a situation where import satisfies the market would not arise. This has to be
viewed in the context of previous arguments prevailing against importation in
order to understand the general stance of the nation.

The agendas on the international front kept changing during this time, but
what remained constant was the opposition against importation. This can be
inferred from an article written by Justice Y.R. Krishna Iyer in the year 2000
which was much after the signing of the TRIPS. He highlights the importance
of a welfare state in a developing nation by saying that “the humbler the Indian
human, the higher is the state’s duty to protect the person.” Along with this he
credited the 1970 Act and the fact that importation was not treated as working
of a patent with success of the pharmaceutical industry39. This clearly shows
that the interpreters of the law in India, even after TRIPS, did not consider
importation as the working of a patent.

IV. THE BAYER CASE: AGAINST ALL ODDS

In 2011 Natco applied for a compulsory license before the Controller

General of Patents (hereinafter, Controller). Their short struggle lasted one
year and in 2012, they were given the permission to manufacture Nexavar,
which was patented by Bayer. The Controller in his decision relied upon
34
Supra note 22.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Y.R. Krishna Iyer, “Human Health and Patent Law” Frontline (October 2014).
254  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

Section 83 (c) of the Indian Patents Act40 along with a reasoning that equated
what a licensee can do to what a patentee can do. This was done through
Section 90 (3) which states that no license can be worked through importation.
This was read in a way that since no licensee can work the license through
importation, no patentee should be allowed to do the same. This was objected
upon by Bayer as this meant that the licensee was similar to a patentee.41 They
took the case to the Intellectual Property Board which merely assumed that
importation can be considered as working as it was not a contested position in
the case42. They proceeded to grant the patent on the basis of public require-
ment which was the first ground in Section 84 of the Indian Patent Act43.
Further, with regards to importation, they made it clear that it can be allowed
if India lacks the capacity to manufacture the product, making room for analy-
sis on a case to case basis. From then on, the case then went to the High Court
of Bombay which gave the final conclusion which was antithetical to the his-
torical intention we have proved above.

One interesting thing to mention here, is the fact that the court took upon
itself to outline a brief history of the patent law in the country, in the judg-
ment itself. For this, they have used the Ayyangar Committee report as well.
It is actually surprising that despite reading the Ayyangar committee report
in detail, the court refused to take into account the importance of excluding
importation as working of a patent.44 They say that Section 90 of the erst-
while Act, which talked about situations where the reasonable public demand
remained unsatisfactory, is now enshrined in Section 84 (7)45. The old section
contained the words ‘manufacture in India’ which were deliberately not made
a part of the new section. This was taken to mean a change in the intention
to allow importation as working of a patent. Based on the fact that authorities
have always made sure to read Section 84 from a lens of Section 83, the court
should have concluded that importation cannot be allowed but instead, they
further the decision of the appellate board by holding that once the patentee
has satisfied the Controller that the patented invention cannot be manufactured
in India due to a sufficient cause, they can be allowed to import as long as the
public demand is met.

40
Patents Act, 1970, S. 83(c) (that the protection and enforcement of patent rights contribute to
the promotion of technological innovation and to transfer and the dissemination of technology,
to mutual advantage of producers and users of technological knowledge and in a manner con-
ducive to social and economic welfare, and to a balance of rights and obligations.)
41
Supra note 6.
42
Bayer Corpn. v. Union of India, 2014 SCC OnLine Bom 963 : AIR 2014 Bom 178 : (2012)
IPAB 148 Para 18.
43
Patents Act, 1970, S. 84(1)(a) (“the reasonable requirements of the public with respect to the
patented invention have not been satisfied”).
44
Ayyangar Committee Report, Para 30, p. 16.
45
Patents Act, 1970, S. 84(7).
 CNLU LAW JOURNAL–2020-21  255

However, they did not stop here, bringing Form 27 into the picture. Form
27 is the annual responsibility of the patentee to show that his patent is being
satisfactorily worked in the territory of India. The High Court interpreted that
since the form has importation as one of the criteria under the heading ‘work-
ing the patent’, the law makers clearly wanted to make room for importation
to satisfy public demand. Over here, the court has turned a Nelson’s eye to the
fact that the form has local manufacture under the same heading. Read from a
lens of Section 83, a more reasonable reading of the form would be regarding
importation as a relevant factor when the drug is being locally manufactured.46

The court has tried making room for a scenario where the patentee can be
excused from local production if he has sufficient cause. While this decision
had benefited the foreign patentee, it opens the floodgate of importation which
has the potential to drown the domestic industry if misapplied.

The next obvious question that arises is how can it be misapplied? Before
we go into this question, let us understand the 3 scenarios that arise when
importation is allowed –
(i) where there is negligible importation and the public demand is satiated
mainly by local manufacture.
(ii) where the public demand is satiated partly by local manufacture and
partly by importation.
(iii) where the public demand is satiated only by importation.

In scenario number three, it may appear that public demand is satiated and
the imported product is cheaper since arduous local production would have
resulted in an expensive finished product, we should never forget that this
will be a blessing only in the short run. This is also the approach taken by the
court when analysing the problem. It prescribes only the economies of scale
factor when deciding the importation question. However, in the long run, a for-
eign patentee would continue to take advantage of the expanding market with-
out sharing the technical know-how of the patented invention.47

V. CONCLUDING REMARKS AND THE SUGGESTIONS

As mentioned above, this is the part where a suggestion is proposed to deal

with the vagueness created by the court through the Bayer case. This sugges-
tion is by no means a holistic and all-encompassing guideline, rather it is a
mere attempt to take legal scholarship in the direction of a concrete and fair

46
Supra note 6.
47
Ayyangar Committee Report, Para 30, p. 16.
256  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

approach. In furtherance to this, first the approach of the authorities at all three
levels must be highlighted.

The first level is when the case was before the Controller of Patents in
Mumbai. The Controller took an approach which was along the lines of the
historical intention described above. The fear of a long-term harm to the nation
led the Controller to conclude –

“Unless such an opportunity for technological capacity build-

ing domestically is provided to the Indian public, they will be
at a loss as they will not be empowered to utilise the patented
invention, after the patent right expires, which certainly can-
not be the intention of the parliament.”48

In addition to this, after an analysis of the Indian law while keeping the
international standards in mind the Controller recorded that –

“it is clear to me that the Paris Convention and the TRIPS

Agreement and Patents Act 1970, read together do not in any
manner imply that working means importation. I am therefore
convinced that ‘worked in the territory of India’ means ‘man-
ufactured to a reasonable extent in India’.”

The twist in the tale happened at the level of the appellate board. As
opposed to the strict stance of the Controller against treating importation as
working of a patent, the appellate board propagated a method which isolates
each case from the other, making room for a possibility to allow importation if
manufacturing is not feasible. The board has held that –

“In a given case there may be an invention which cannot

be manufactured in India and it is also possible that there is
an invention where the reasonable requirement of the pub-
lic itself is small in number and setting up a factory just for
the purpose is not practicable. TRIPS says that authorization
and other uses must be dealt with on a case to case basis.
Therefore, we cannot decide that “working” totally excludes
import, or that “working” is synonymous to import and that
if there is no manufacture in India, then there is no working.
In any event, we are not furnished with any evidence regard-
ing this aspect viz., whether the appellant in its facility in
India, which admittedly the appellant does not deny, could
not have manufactured this drug. So, with regard to Section
84(1) (c), we find that the word ‘worked’ must be decided on

48
Natco Pharma Ltd. v. Bayer Corpn., (2012) 50 PTC 244.
 CNLU LAW JOURNAL–2020-21  257

a case to case basis and it may be proved in a given case, that

‘working’ can be done only by way of import, but that cannot
apply to all other cases.”49

This is a clear indication that instead of the general rule of not treating
importation as working of a patent, the Tribunal wanted to make a room for
the situations where manufacturing locally is not economically feasible.

This approach was then accepted and furthered by the High Court by hold-
ing that –

“The guidelines viz. Section 83 of the Act in particular states

that the patent is not granted so as to enable the patent holder
to enjoy a monopoly with respect to the importation of the
patented article. Thus, it would presuppose that some efforts
to manufacture in India should also be made by the patent
holder. This is further supported by the other considerations
set out in Section 83 of the Act to be applied in construing
‘worked in territory of India’. Section 83(c) of the Act pro-
vides that there must be transfer of technological knowledge
to the mutual advantage of the producers and users of the pat-
ented article. In this case, the user of the knowledge of the
technology is the patient in India i.e. cancer patients. Section
83(f) of the Act provides that patent holder should not abuse
his patent so as to inter alia adversely affect international
trade. As against the above, Form 27 as prescribed also gives
an indication that importation could also be a part of working
in India. Therefore, as rightly held by the Tribunal, it would
need to be decided on case-to-case basis. It would, therefore,
follow that when a patent holder is faced with an application
for Compulsory License, it is for the patent holder to show
that the patented invention/drug is worked in the territory of
India by manufacture or otherwise. Manufacture in all cases
may not be necessary to establish working in India as held
by the Tribunal. However, the patent holder would neverthe-
less have to satisfy the authorities under the Act as to why
the patented invention was not being manufactured in India
keeping in view Section 83 of the Act.”50

They have necessarily pointed out how it might seem that through Sections
83 and 84, the Indian law makers, have tried to exclude importation as

49
Bayer Corpn. v. Union of India, 2014 SCC OnLine Bom 963 : AIR 2014 Bom 178 : (2012)
IPAB 148.
50
Bayer Corpn. v.Union of India, 2014 SCC OnLine Bom 963 : AIR 2014 Bom 178.
258  LOCAL WORKING REQUIREMENTS IN THE PATENTS ACT, 1970

‘working’ of the patent but it must be noted that importation has been included
as a criterion in Form 27, which can mean that they had envisioned a situation
where it might not be economically feasible to import. Thus, they hold that the
approach of the tribunal to take a case to case basis approach in such matters
is the most appropriate solution.

At present, lack of economic feasibility seems to be favouring the total

importation, which is contrary to the Ayyangar Committee report. The histor-
ical intention explained above is merely to understand the gravity of caution
that must be kept in mind while analysing the application for a compulsory
license. What we object upon is the way the court has exempted this, not that
it has exempted this. The court puts the patentee in a position where he gets
an opportunity to explain himself as to why no local production has happened.
It is purely at the discretion of the patentee as to what reason he gives as the
court has not outlined any guidelines or compulsions, following which, an
honest reason for the absence of local manufacture may not be produced by
the patentee. Not only this, it can be argued that since Form 27 is the thresh-
old to ensure that the patented invention is being worked, the absence of such
guidelines and the presence of the vacuum created by the decision of the
court, renders this form futile. In addition to this, Professor Shamnad Basheer
in Shamnad Basheer v. Union of India51 had brought the various questions of
implementation regarding Form 27 into lime light where the Controller, instead
of taking action remained nonchalant. When statistics like these exist, Form
27 should be made more concrete by the court through specific guidelines not
vague by introducing anomalies like a case to case basis analysis.

Calculating costs and benefits of domestic manufacturing encompasses

under its domain several different factors and the results vary from sector
to sector. Therefore, detailed guidelines/check list for the patentee, focusing
on factors like imitative capabilities of the host state, infrastructure assess-
ment, annual turnover and profitability of the companies, economic and social
well-being of the host state, etc, becomes crucial. In the absence of a check list
from the side of authorities, patentee can fill the details in the Form 27 accord-
ing to his convenience by neglecting the public interest feature of TRIPS and
Section 83 of the Patents Act, 1970.

51
Shamnad Basheer v. Union of India, 2015 SCC OnLine Mad 299 : AIR 2015 Mad 250.
 REAPPRAISING THE CORPORATE
PHILANTHROPY AND RANK
OF NON-PROFIT VOLUNTARY
ORGANISATIONS IN INDIA
—Nandita S. Jha*

Corporate philanthropy takes expanded extensive significance to quotidian

commercial operations in India. For leading companies, corporate philanthropy
goes well beyond simple donations. They engross in a variety of philanthropic
activities, such as volunteer initiatives, community service and educational or
cultural projects. Often, such engagement is part of a larger framework of cor-
porate social responsibility that also covers issues such as ethical business con-
duct, diversity and protection of the environment.

Firstly, the speedy development of the economy over three decades of strong
economic progress, with a synchronized rise in internal wealth, promises well
for the latent for philanthropic giving. Second, the Indian Companies Act of
2013 regulates Corporate Social Responsibility (CSR) and mandates higher
corporate spending towards specific sectors. Third, global interest in India’s
social and economic development is high – reflected in important levels of
external funding – and it has become the largest recipient of international phil-
anthropic flows, while external financing from foreign direct investment (FDI)
and personal remittances have increased as a percentage of GDP. Meanwhile,
official development assistance (ODA) as a percentage of Gross National
Income (GNI), has decreased.

Although research in this area have been emphasizing the strategic rele-
vance of corporate philanthropy. It is debated that companies can and should

*
Assistant Professor Research Scholar, CNLU Patna.
260  REAPPRAISING THE CORPORATE PHILANTHROPY

strategically use their benevolent activities to create win-win opportunities for

themselves and for the beneficiaries of their philanthropy.1

Although the strategic relevance of corporate philanthropy is widely

accepted, its effectiveness varies substantially. Few companies achieve signif-
icant lasting societal impacts with their philanthropy, and even fewer manage
to accomplish both sustainable social effects and significant economic returns.
Most companies’ philanthropic activities lack a cohesive strategy and are con-
ducted in a piecemeal fashion, causing investments in corporate philanthropy
to often simply dissipate.

In most cases, executives dismiss this ineffectiveness as an inevitable part

of philanthropic engagement. By doing so, they misjudge the situation. There is
no reason to treat a company’s charitable activities less professionally than the
core business.

But to what extent should corporate philanthropy be related to a company’s

core business? From an ethical perspective, is it legitimate to require corporate
charitable activities to contribute to the company’s bottom line by providing
market benefits or advancing internal business operations? We think that this
is clearly the case. Only philanthropic activities that both create true value for
the beneficiaries and enhance the company’s business performance are sustain-
able in the long run. Initiatives that don’t fulfill these two objectives are eas-
ily threatened in difficult economic situations. Also, charitable activities that
are not win-win solutions may not reach their potential and are often regarded
within the company as negligible side activities. To achieve a sustainable and
robust approach to corporate philanthropy, companies must direct their charita-
ble engagement from both an ethical and an economic point of view.

I. MODELS CORPORATE PHILANTHROPY

Although many executives have started to pay more attention to corporate

philanthropy, the strategic direction of their companies’ philanthropic activities
often remains superficial and poorly controlled. One reason is a poor under-
standing of managerial options in this area.

1
J.J. Chrisman and A.B. Carroll, “Corporate Responsibility — Reconciling Economic and
Social Goals,” Sloan Management Review 25, No. 2 (winter 1984): 59–65; M.R. Porter
and M.R. Kramer, “The Competitive Advantage of Corporate Philanthropy,” Harvard
Business Review 80, No. 12 (December 2002): 57–68; and C. Smith, “The New Corporate
Philanthropy,” Harvard Business Review 72, No. 3 (May––June 1994): 105–116.
 CNLU LAW JOURNAL–2020-21  261

A. Model 1: Market Orientation

Some Board put a strong emphasis on the expectations of stakeholders such

as customers, employees, regulating agencies or neighboring communities.
These executives strive to enhance their companies’ competitive situation by
designing their corporate philanthropy according to external demands. Trying
to live up to the expectations of important stakeholders, these companies hope
to achieve competitive advantages such as improved marketing and selling
capabilities, higher attractiveness as an employer or better relationships with
governmental and nongovernmental organizations. Such as ICICI Foundation,
HCL Technologies run Rural Development Projects on PAN India basis.

Executives who adopt a market-oriented approach to corporate philanthropy

tend to put stakeholder expectations at the center of their considerations. Such
companies may be more interested in influencing stakeholder attitudes than in
actual social outcomes. However, market-oriented corporate philanthropy can
achieve remarkable societal benefits too. Because such initiatives are usually
directed toward meeting stakeholder demands in order to affect stakeholders’
attitudes, the activities often serve to satisfy crucial needs.

B. Model 2: Competence Orientation

There are some executives, on the other hand who, when deciding on the
nature of their charitable engagement, focus on internal issues. In particular,
they align corporate philanthropic initiatives with their companies’ abilities and
core competencies. In so doing, they avoid distractions from the core business,
enhance the efficiency of their charitable activities and assure unique value
creation for the beneficiaries.

The pro bono projects conducted by many consulting companies represent

an example of this kind of philanthropic activity. For instance, McKinsey &
Co. offers free consulting services to non-profit organizations in social, cultural
and educational fields. Beneficiaries include public art galleries, colleges and
charitable institutions. Each year, the company conducts about one hundred
such projects worldwide, using its employees’ unique knowledge of non-profit
causes. Besides meeting its responsibilities toward society, McKinsey explicitly
cites its employees’ excitement, inspiration and development as major motives
to engage in these activities.

Some companies syndicate an external, or market, orientation with an inter-

nal, or competence, orientation, while others focus on just one perspective on
corporate philanthropy. Still others do not adopt a strategic orientation toward
their philanthropic activities at all. The desired degree of internal and external
262  REAPPRAISING THE CORPORATE PHILANTHROPY

orientation indicates one of four specific approaches to corporate charitable

activities:
1. Exterior/Peripheral Philanthropy: Companies that prac-
tice peripheral philanthropy have charitable initiatives that
are mainly driven by external demands and stakeholder
expectations. Most such companies see corporate philan-
thropy as a means to better position themselves within their
competitive environment. Their philanthropic engagement
is usually unrelated to their core activities, but they are
attempting to translate positive reputation effects into con-
crete bottom-line impacts.

The strategic consequences of peripheral philanthropy

are mixed. Companies may be able to reap benefits from
enhanced reputation. Their philanthropic image may help
stimulate customer demand for their products and services.
Also, they may improve their ability to attract and retain
qualified employees or enjoy lessened public and regulatory
scrutiny. However, peripheral philanthropic activities often do
not tap a company’s core competencies, may lack credibility
and may appear superficial. Companies may end up engaging
in charitable activities in a wide array of fields with contribu-
tions that are hardly distinctive.

On the other extreme, some companies design their peripheral

philanthropy very comprehensively. Such companies risk con-
fusing and impairing their business focus. Their social initi-
atives can distract both monetary and managerial resources
from the business’s core activities and can contribute to stra-
tegic ambiguity.

Consider the case of the Indian steel producer Tata Steel Ltd.,
based in Jamshedpur, India.2 Founded in 1907, Tata Steel
acquired a strong philanthropic heritage from its charismatic
founder, Jamsetji Nusserwan Tata, who ran his business with
a strong sense of social responsibility for the Indian nation’s
welfare. As a result, Tata Steel pioneered many employee
welfare measures in India, introducing the general eight-hour
working day in 1912, free medical treatment in 1915, mater-
nity benefits in 1928 and a pension system in 1989. Tata
Steel also virtually ran the city of Jamshedpur. The company
2
See H. Bruch and U. Frei, “Tata Steel 2005: The Vision of Harmonizing Profitable Growth
and Social Responsibility,” University of St. Gallen Case No. 405-023-1 (St. Gallen,
Switzerland: University of St. Gallen, 2004)
 CNLU LAW JOURNAL–2020-21  263

provided a wide array of services, including water and power

supply, landscaping, street sweeping and civil construction
work. Tata Steel ran hospitals, schools and a college with
30,000 students. For many years, these far-reaching social
welfare practices substantially enhanced Tata Steel’s reputa-
tion and provided the company with significant advantages.
It was able to attract and retain the talent necessary for its
continued success, even though the area around Jamshedpur
provided little infrastructure. In addition, the company
enjoyed excellent labour-management relations and was
spared from strikes for decades. Tata Steel was also able to
create an enormous level of satisfaction and loyalty among its
workforce.

However, in the early 1990s, the typical problems of periph-

eral philanthropy started overshadowing its benefits. Tata
Steel’s wide array of noncore activities impaired the compa-
ny’s ability to focus on the core steel business. As one of the
company’s vice presidents put it, “Tata Steel realized that it
was necessary to review its approaches to the sustenance of
its business and to the great social responsibility that was on
its shoulders. The problem was how to grow into an efficient
world-class business corporation without losing the image of
a socially conscious employer.” The company’s philanthropic
activities were widespread but strategically ambiguous,
and this was eventually viewed as an impediment to future
growth. These developments threatened to erode Tata Steel’s
position in the marketplace and put its very existence at risk.

Tata Steel suffered from inefficiency, and the company’s over-

sized workforce boosted payroll costs. By the early 1990s,
Tata Steel’s payroll peaked at 78,000 employees, almost 10%
of whom worked providing services for the town or medical
services. The drawbacks of Tata Steel’s approach to corpo-
rate philanthropy became obvious after the liberalization of
the Indian economy in 1991 led to increased competition. Top
management at Tata Steel suggested far-reaching changes,
including massive workforce reductions and a substantial
redesign of the company’s social welfare programs.

It was only through a difficult change process that Tata

Steel’s top management was able to get the company back
on track. Given the philanthropic heritage of the company,
B. Muthuraman, managing director since 2001, did not want
264  REAPPRAISING THE CORPORATE PHILANTHROPY

to jeopardize Tata Steel’s reputation as an employer of choice

and outstanding corporate citizen. There was consensus in
top management that change was inevitable, but it should not
involve an abandonment of the company’s engagement in cor-
porate philanthropy.

Today, Tata Steel is a highly profitable company with plans

for substantial growth. However, even in early 2005, after
substantial workforce reductions, about 1,400 of Tata Steel’s
40,000 employees were still working in city services or med-
ical services. The company was spending about $21 million
each year to carry out those tasks, and the company’s refo-
cusing and downsizing processes were slated to continue.
As this example illustrates, peripheral philanthropy may be
appropriate under certain circumstances. It can help compa-
nies attain benefits that are vital both for themselves and for
key stakeholders. In such cases, it may be both ethically and
economically crucial for the company to jump in and meet
stakeholder needs. However, such initiatives usually cannot be
sustained in the long run.
2. Bound Philanthropy: Companies emphasize a pronounced
competence orientation in their philanthropic initiatives.
Adopting an approach that we call constricted philanthro-
py, executives at these companies hope to use synergies
between their main activities and their charitable activities.
These executives harness their companies’ core competen-
cies for social purposes, but do so while largely neglecting
an external stakeholder perspective.

The strategic impacts of constricted philanthropy are mixed.

Using existing expertise, resources and facilities enhances the
efficiency of the company’s philanthropic initiatives. In some
cases, executives may even see opportunities to transform
their companies’ cultures and their employees’ mindsets by
linking philanthropic and business activities. These managers
strive to imbue a sense of responsibility throughout the cor-
poration and to cultivate a sense of innovation by engaging
corporate competencies in new areas.
3. Dispersed Philanthropy: Corporate philanthropy in many
companies is characterized by a general lack of strategic
direction. Such initiatives are largely uncoordinated. Nei-
ther top executives nor typical employees have a compre-
hensive overview of the company’s activities, and there are
 CNLU LAW JOURNAL–2020-21  265

no clear-cut decision criteria that explain why specific char-

itable projects are chosen. As a result, these companies may
engage in a multitude of small projects without a guiding
theme. Funding is spread more or less arbitrarily across var-
ious institutions in differing areas.

The consequences of this piecemeal approach, which we call

dispersed philanthropy, are usually not particularly favourable
for either the company or the beneficiaries of its philanthropy.
The negative aspects of peripheral and constricted philan-
thropy multiply here. For instance, dispersed philanthropy
increases the problem of strategic ambiguity. Neither external
stakeholder needs nor internal business considerations guide
the company’s philanthropic engagement. Both managers and
employees may find it hard to understand why the company
is doing what it is doing. Also, the impacts of dispersed phi-
lanthropy tend to be minimal. Operating in areas far from its
core competencies, the company is not able to realize internal
synergies. At the same time, the multitude of different pro-
jects prevents the company from focusing its efforts on cer-
tain stakeholder groups and providing them with substantial
benefits.
4. Strategic philanthropy: The most effective approach to
corporate philanthropy, which we call strategic philan-
thropy, integrates an internal and an external perspective.
It applies the same professional management principles to
corporate philanthropy as to any other field of business
operations. Executives align philanthropic efforts with the
core competencies of their companies, thus using the com-
pany’s unique abilities to benefit society. However, they also
take into account stakeholder and market expectations so
that the company may benefit from the effect of its phil-
anthropic activities in the marketplace. Companies with
this approach to corporate philanthropy achieve sustaina-
ble results with regard to both their stakeholders’ needs and
their own competitive advantage. While providing substan-
tial benefits for society, they can gain opportunities to learn
how to apply their core competencies in new business areas,
boost their employees’ intrinsic motivation, stimulate cus-
tomer demand and enhance their attractiveness in the labour
market. They maintain and even strengthen their identity by
aligning their social engagement with the overall company
mission and vision.
266  REAPPRAISING THE CORPORATE PHILANTHROPY

IBM’s Reinventing Education grant program is a clas-

sic example of strategic philanthropy.3 Launched in 1994,
Reinventing Education aimed to improve school systems and
drive education reform in the United States and other coun-
tries. To achieve this aim, IBM provided IT solutions in areas
like communication between homes and schools, teacher pro-
fessional development, student assessment and data manage-
ment and analysis. Reinventing Education drew heavily on
IBM’s employees’ specialized skills to provide solutions for
technological problems. By August 2004, the program, which
is still ongoing, had completed three rounds of grant awards
to schools and school districts and had, in 2004, issued grants
valued at more than $70 million. However, only about 25%
of those contributions were given in cash, while 75% con-
sisted of research and consulting time, software and technical
equipment.

The Center for Children & Technology in New York esti-

mates that by 2004, more than 90,000 teachers and millions
of students were using educational technology tools created
through Reinventing Education. The program was working in
25 sites across the U.S. and in nine countries in Asia, Latin
America, Europe and Australia. Besides offering significant
contributions toward the improvement of public education,
Reinventing Education also provided IBM with important
strategic advantages, such as enhancing its reputation. From
2000 to 2003, IBM continuously remained in the top five of
Business Ethics’ 100 Best Corporate Citizens list. In addition,
the company received the 1999–2000 Ron Brown Award for
Corporate Leadership. Reinventing Education also boosted
IBM employees’ pride and loyalty. And the program enabled
technological learning, skill transfer and the development of
new technologies with commercial potential. For instance,
as part of the Reinventing Education initiative IBM staff
developed new drag-and-drop technology for the Internet
that also could be used for commercial purposes. IBM also
created “Watch-me!-Read,” an innovative voice-recognition
software application for children. Although initially designed
as part of the philanthropic initiative, these innovations also
had substantial commercial potential. Because of Reinventing
Education, IBM was eventually able to make its K-12

3
See R.M. Kanter, “IBM’s Reinventing Education (A),” Harvard Business School Case No.
9-399-008 (Boston: Harvard Business School Publishing, 2001).
 CNLU LAW JOURNAL–2020-21  267

education business profitable even though that business had

been losing money before the program started.

As this example illustrates, strategic philanthropy enables

companies to fully realize the potential of corporate phi-
lanthropy both for its beneficiaries and for the company.
However, strategic philanthropy also entails substantial com-
mitment on the part of management. It requires sound plan-
ning and careful implementation, and executives need to
clearly focus their companies’ charitable activities. For
example, Reinventing Education was clearly directed toward
providing technological solutions to barriers to reform in
K-12 education, and projects were only initiated if they
addressed that issue. Without such a clear focus, corpo-
rate social engagement is likely to drift away from strategic
philanthropy.

Since India has a complex philanthropic and non-profit environment, with

multiple organisations providing funding and implementing activities in areas
such as education, primary health care and rural development. Some organisa-
tions are exclusively funders, others focus on implementing programmes and
some perform a hybrid role providing funding to other organisations while
carrying out programmes themselves. Private funding of this nature can come
from corporate foundations, CSR from private companies, annual spending
from public trusts and spending by family foundations and other organisations
that receive donations with the goal of distributing them for a specific purpose.

The philanthropic sector in India is not regulated by a single government

agency and there is no private or public organisation that consolidates infor-
mation for all philanthropic organisations, nor an association of these organisa-
tions that performs this role. This is made even more complex by the fact that
any non-profit legal entity involved in education, health care, religion or com-
munity development can be referred to as a ‘’foundation’’ and can be legally
registered under the same legal structures that regulate charitable institutions
in India. While CSR is regulated by the MCA, non-profit organisations are reg-
istered under various Registration Acts – both at the central and State levels.
Public trusts are regulated by the States through Trusts Acts; however, in the
absence of a Trust Act in a particular State, the principles of the Indian Trusts
Act 1882 apply. Hence, Non-Profit Voluntary Organisations in India generally
take three legal forms: trusts, societies, and limited (Section 8) 4 not-for-profit
companies.

4
Companies Act, 2013
268  REAPPRAISING THE CORPORATE PHILANTHROPY

Moreover, the Indian philanthropic ecosystem has no reporting standards.

While the United States, for example, has the Internal Revenue Service (IRS)
990 forms that compel all foundations to report their activities annually, there
is no equivalent standard in India, resulting in the absence of data about pri-
vate philanthropy in terms of allocation, sectors targeted, geographical distri-
bution, or the ultimate impacts of these expenditures.

The consolidation and publication of CSR information from the MCA rep-
resents a strong commitment to transparency and a first step towards assessing
the effectiveness of this mechanism to fund social spending directly through
private expenditure. It will also help in understanding the impacts on company
profitability and could influence the overall level of CSR spending. Preliminary
results, using difference-in-difference estimations5 , show that company profit-
ability had been negatively impacted by the CSR mandate and, in some cases,
reduced resources spent through this channel. Other estimates show that corpo-
rations spending less than 2% of their profits on CSR increased such expendi-
ture after the introduction of the Companies Act of 2013, but others spending
more than 2% reduced their spending 6 For these reasons, continuous monitor-
ing of the evolution of CSR is crucial to establish the ultimate effects of this
regulation.

With about 20 lakh NPVOs registered in India there is considerable con-

fusion among corporates on their legitimacy and credibility. Corporates, espe-
cially the small and medium ones need a trusted marketplace or intermediary
to be able to identify and partner with a NPVOs for their CSR compliance.7

Partnerships with civil society organizations carry forward corporate initi-

atives for integrated and inclusive development across diverse domains includ-
ing affirmative action, healthcare, education, livelihood, diversity management,
skill development, empowerment of women, and water, to name a few.

BSE Sammaan is a first of its kind initiative in the world which enables
companies to undertake effective CSR activities by connecting them to non-
profit and non-government agencies that have legitimate records.

Sammaan brings together BSE’s exchange capabilities along with

Confederation of Indian Industry’s (CII’s) strong industry connect and Indian

5
Mukherjee, A., R. Bird and G. Duppati (2018), “Mandatory Corporate Social Responsibility:
The Indian Experience”, Journal of Contemporary Accounting & Economics, Vol. 14(3), pp.
254-265.
6
Dharmapala, D. and V. Khanna (2018), “The Impact of Mandated Corporate Social
Responsibility: Evidence from India’s Companies Act of 2013”, International Review of law
and Economics, Vol. 56, pp. 92-104.
7
BSE Sammaan visit <www.bsesamman.com>.
 CNLU LAW JOURNAL–2020-21  269

Institute of Corporate Affairs’s (IICA’s) knowledge expertise to enable effective

CSR compliance.

Though researcher put forward that the role of a charities regulator (I use
‘charities’ here onwards to include not only NGOs, but all charitable non-profit
organisations such as trusts, Section 8 companies, associations etc), should be
to effectively secure compliance with the charity laws of the land in a fair,
transparent and non-partisan manner, free from political influence to enhance
public trust and confidence in both the regulator and the charities. Moreover,
it should make the regulatory process as simple and cost effective as possible.

The Indian law could be called the law for non-profit public benefit organi-
sations. Because charity is a concurrent subject, the parliament can make laws
with respect to charities and charitable institutions under entry 28 of the con-
current list in the seventh schedule of the constitution. The states could, enact
the same law using the central law as a model, for their jurisdictions. A com-
prehensive reform of NPVOs will ensure both accountability and impartiality
in the Philanthropic sector.

References:

Angrist, J. and J. Pischke (2008), Mostly Harmless Econometrics: An

Empiricist’s Companion, Princeton University Press.

Bain & Company (2019), India Philanthropy Report 2019, <https://www.

bain.com/contentassets/069bf9cf144e4b8bbdda8a85386a5611/bain_brief_india_
philanthropy_report_2019.pdf>.

Bénabou, R. and J. Tirole (2010), “Individual and Corporate Social

Responsibility”, Economica, pp. 1-19.

Chattopadhyay, S. (2018), “Social Sector Expenditure in India in the 2000s:

Trends and Implications”, Journal of Development Policy and Practice, Vol. 3/1,
pp. 16-40, <https://doi.org/10.1177/2455133317740449>.

Dahlsrud, A. (2008), “How Corporate Social Responsibility is Defined: An

Analysis of 37 Definitions”,

Corporate Social Responsibility and Environmental Management, pp. 1-13.

Dharmapala, D. and V. Khanna (2018), “The Impact of Mandated Corporate

Social Responsibility: Evidence from India’s Companies Act of 2013”,
International Review of Law and Economics, Vol. 56, pp. 92-104.
270  REAPPRAISING THE CORPORATE PHILANTHROPY

European Commission (2011), A Renewed EU Strategy 2011–14 for

Corporate Social Responsibility, European Commission.

Foundation Center and Council on Foundations (2018), The State of Global

Giving from U.S.

Foundations 2011-2015, <http://doi.org/10.15868/socialsector.31306>.

Gabaix, X. (2009), “Power Laws in Economics and Finance”, Annu. Rev.

Econ, Vol. 1/1, pp. 255-294.

Hart, O. and L. Zingales (2017), “Companies Should Maximize Shareholder

Welfare not Market Value”, ECGI Working Paper Series in Finance.

Kitzmueller, M. and J. Shimshack (2012), “Economic Perspectives on

Corporate Social Responsibility”, Journal of Economic Literature, Vol. 50/1,
pp. 51-84.

Matten, D. and J. Moon (2008), “ ‘Implicit’ and ‘Explicit’ CSR: A

Conceptual Framework for a Comparative Understanding of Corporate Social
Responsibility”, Academy of Management Review, Vol. 33/2, pp. 404-424.

Ministry of Corporate Affairs (2019), CSR Data and Summary, <http://

www.mca.gov.in/MinistryV2/csrdatasummary.html> (accessed on 4 April 2019).

Ministry of Corporate Affairs of India (2016), The Companies Act, <http://

www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf>.

Mukherjee, A., R. Bird and G. Duppati (2018), “Mandatory Corporate

Social Responsibility: The Indian Experience”, Journal of Contemporary
Accounting & Economics, Vol. 14/3, pp. 254-265.
 SC’S MALLIKARJUN KODAGALI:
DEVIATING FROM THE PRESUMPTION OF
INNOCENCE AND GOING OVERBOARD
FOR EVOLUTION OF VICTIMOLOGY
—Vivek Krishnani

I. AN INSIGHT INTO THE ISSUE AT HAND

Ever since it came into existence, the criminal justice system has been a
see-saw which has, on one of its two ends, the rights of victims and on the
other, that of the accused persons. Too much relative weight on either of the
ends leads to outcomes unwelcome. Accordingly, a perfect balance, despite
being practically unachievable, is constantly sought by the Legislature and the
Judiciary. The author, in this article, expounds how the see-saw, which had
been neglecting the victim, has now attached to it more weight than required.

Mallikarjun Kodagali v. State of Karnataka1 is a perfect illustration of the

above proposition. The judgment deals with certain issues concerning vic-
tim’s right to appeal under Section 3722 of the Code of Criminal Procedure,
1973 (hereinafter “CrPC”). The issue undertaken by the author for analysis,
herein, is the one which invited different opinions from Lokur J. and Gupta
J. Notwithstanding the fact that the opinion of Lokur J. was the concurring
opinion, the author subscribes to the views of Gupta J. in this regard. It must
be noted that the issue at hand arises from the introduction of the proviso to
Section 372,3 with effect from 31st December, 2009:

Whether the victim can file an appeal in the High Court with-
out seeking leave to appeal?4

1
Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752 (hereinafter “Kodagali”).
2
The Code of Criminal Procedure, 1974, No. 2, Acts of Parliament, 1860, S. 372.
3
Ibid.
4
Kodagali, supra note 1.
272  SC’S MALLIKARJUN KODAGALI

II. TRACING THE VICTIM’S RIGHT TO APPEAL

AND THE ACCUSED PERSON’S POSITION
IN THE CRIMINAL JUSTICE SYSTEM

To answer the question, it is imperative upon us to first briefly under-

stand the evolution of victim’s right to appeal and the position of an accused
person. To begin with, reference may be made to the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, adopted by the
General Assembly of the United Nations in the 96th Plenary Session on 29th
November, 1985:

“Judicial and administrative mechanisms should be estab-

lished and strengthened where necessary to enable victims
to obtain redress through formal or informal procedures that
are expeditious, fair, inexpensive and accessible.”5

In the aforementioned, the use of the phrases “judicial and administrative

mechanisms” and “enable victims to obtain redress” clearly include the right to
appeal of victims. The reasoning that underlies the linkage of these rights with
the idea of justice for victims is simply because one of the most fundamental
ideals of retributive justice. What has been inflicted upon a victim needs to be
done right, not only by his own compensation but also by the punishment of
his offender. Therefore, even though under the scheme of the CrPC, the prose-
cution of an offender is primarily the responsibility of the Executive6, the inter-
ests of the victim cannot be undermined.

The plight of victims begins the moment they have been subjected to the
crime. Accordingly, the attention of criminologists has been directed to con-
trol of victimisation and protection of victims of crimes.7 Recognised methods
of the same include, but are not restricted to, compensation to the victims of
crimes and adequate punishment to the offender. Mindful of the same, the pro-
viso to Section 372 has been included effect from 31st December, 2009 and
the recommendations of the Justice Malimath Committee8 in this regard have
been acknowledged to have played an important role. Herein, the victim has
been provided, a right to prefer an appeal against first, acquittal of the accused,

5
General Assembly, “Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power”, United Nations (Nov. 29, 1985), <http://www.un.org/documents/ga/res/40/
a40r034.htm>.
6
Rajender Kumar Jain v. State, (1980) 3 SCC 435 : AIR 1980 SC 1510.
7
Law Commission of India, One Hundred and Fifty Fourth Report on the Code of Criminal
Procedure, 1973, Law Commission of India (Aug. 22, 1996), <http://lawcommissionofindia.nic.
in/101-169/report154vol1.pdf>.
8
Dr. Justice V.S. Malimath et al., Report of the Committee on Reforms of Criminal Justice
System, Ministry of Home Affairs (Mar. 28, 2003), <https://mha.gov.in/sites/default/files/crim-
inal_ justice_system.pdf> (hereinafter “Malimath”).
 CNLU LAW JOURNAL–2020-21  273

second, conviction for a lesser offence or third imposition of inadequate

compensation.

Having said that, International Criminal Jurisprudence is based on the age

old Blackstone’s ratio, which enjoys wide acceptance in various jurisdictions
even present day. Blackstone’s idea is that it is better that 10 guilty persons
escape than that one innocent suffer. In the author’s opinion, it is from this
fundamental principle that the various rights of an accused stem.

One of the most cardinal rights of the accused in fact, is to be presumed

innocent until proven guilty. This right forms the basis for the rules relating to
burden of proof as envisaged under the Indian Evidence Act as well. The bur-
den of proving its case beyond reasonable doubt is that of the prosecution9 and
the accused has to simply create a doubt in the minds of the judge10.

Which amounts to saying, the accused person should not become a victim
to the criminal process because the plight of an accused, not in fact guilty,
is far more problematic than that of the victim. In such cases, the accused
person faces much more humiliation which unfortunately does not end after
the verdict of not guilty. The society continues to perceive him as a criminal.
Consequently, any right of the victim, howsoever important on the face of it,
should not excessively undermine the basic rights of an accused.

III. THE DICHOTOMY: “WITHOUT

SEEKING LEAVE TO APPEAL?”

In the instant case, one of the accused is a Member of the Legislative

Assembly and it is contended that for this reason the State did not challenge
the acquittal. In such cases, certainly the accused person, being at an influ-
ential position to drive the system in his favour, should not be left to public
prosecutor. It may be noted that in various instances that the public prosecutor
has in fact not fulfilled his duties properly11 owing to factors like the influence
of government.

Additionally, even when the public prosecutor withdraws prosecution of an

accused and established application of mind on his part, it cannot be conclu-
sively stated that such a decision was entirely free from government influence.
Accordingly, the victim should have a right to appeal as the same is linked
with the idea of justice. Particularly, in cases like the present one, the victim’s

9
The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, S. 101.
10
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563.
11
Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353 : AIR 2004 SC 3467;
Laxman Rupchand Meghwani v. State of Gujarat, (2016) 57 (2) GLR 1671.
274  SC’S MALLIKARJUN KODAGALI

only redressal mechanism becomes an “appeal”. This is not where the two
opinions deviate.

It is the question of seeking leave from the court for appealing that has
invited differing answers from Lokur J. (concurring) and Gupta J. (dissent-
ing). This becomes important particularly, because the accused person is not in
every given case, a member of the legislative assembly and guilty in fact.

The essence of the concurring opinion, in this regard, can be best explained
by the following excerpt from the introductory part of the judgment:

“The rights of victims of crimes is a subject that has, unfor-

tunately, only drawn sporadic attention of Parliament, the
judiciary and civil society.. we still have a long way to go to
bring the rights of victims of crime to the centre stage and to
recognise them as human rights and an important component
of social justice and the rule of law.”12

Whereas the dissenting opinion, which has made an effort to accommodate

the rights of both victims and accused persons, can be understood from the
following:

“the proviso to Section 372 of Code of Criminal Procedure,

1973 (for short ‘CrPC’) must be given a meaning that is real-
istic, liberal, progressive and beneficial to the victims of the
offences. However, at the same time, one cannot ignore the
rights of the accused and the procedure prescribed by law.”13

The majority opinion on this note has been to allow the victim of a crime
to appeal without seeking a leave from the court. Acknowledging that a vic-
tim has a right to appeal, under the CrPC, and partly concurring, the minority
opinion has stated the contrary. In the author’s view, the minority view is not
only more prudent but also well reasoned. The majority opinion simply negates
the rights of an accused person in criminal proceedings and various ramifica-
tions that result from their reasoning.

IV. RAMIFICATIONS AWAITING THE CRIMINAL

PROCESS OWING TO THIS JUDGMENT

In the author’s opinion, the ratio of this judgment with respect to the seek-
ing of leave is problematic. Although the minority judgment amply discusses

12
Kodagali, supra note 1, at ¶ 2.
13
Kodagali, supra note 1, at ¶¶ 78 and 79.
 CNLU LAW JOURNAL–2020-21  275

the concerns, the prevailing view lacks analysis of the issue. With a catena of
cases, a victim’s right to appeal has been discussed. However, the aspect of
leave seeking is not analysed by Lokur J. Allowing a victim to appeal without
seeking leave from the court is off putting for four major reasons, which the
author has expounded below.

A. First, this requirement is legally implied and undermining this

would amount to negating the intention of the Legislature

The proviso to Section 372 is silent as to the conditions that need to be sat-
isfied for filing an appeal. However, as observed by Gupta J., because the pro-
vision of Section 37814 was already in place when the proviso was included, the
conditions provided therein need to be read into the same.

A beautiful illustration has also been provided in this regard, wherein there
are two victims A and B. Say, A files a complaint and sets the wheels of jus-
tice moving and the case now has become a complaint case. Later, the accused
gets acquitted and the complainant wants to file an appeal in the High Court,
he will have to seek special leave to appeal whereas B, who had not even
approached the Court at the initial stage, will be entitled to file an appeal with-
out seeking leave to appeal. This aptly conveys why allowing an appeal with-
out a leave is problematic.

B. Second, seeking a leave does not infringe a victim’s right to

appeal but not seeking it does violate rights of the accused

While victimisation needs to be controlled, privatisation of the criminal pro-

cess by allowing an unconditional right to appeal to a victim is undesirable.
Merely imposing a condition of seeking a leave does not curb the right of vic-
tims herein. In fact this has no impact on the victim’s rights and all it does is
make room for long-standing predicaments for the accused who might eventu-
ally establish its innocence.

Raghuvansh Dewanchand Bhasin15 is a perfect illustration of how an

accused person could come within the trap of criminal procedure and face
humiliation despite not being guilty. It does not take much to bring in a person
within the purview of crime and raise allegations against them in criminal pro-
ceedings. Registering of false complaints and cases is not uncommon and the
same only brings humiliation to the accused person. Innocent citizens are often
termed as accused, which is not intended by the legislature.16 In fact, repeat-

14
The Code of Criminal Procedure, 1974, No. 2, Acts of Parliament, 1860, S. 378.
15
Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791.
16
Dadu v. State of Maharashtra, (2000) 8 SCC 437.
276  SC’S MALLIKARJUN KODAGALI

edly, instances of misuse of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 against people of other community have
come into light.17

From a societal perspective, allowing appeals without leaves would further

aggravate the plight of such an accused. In this regard, the longer the criminal
proceedings go on, the more difficult it becomes for the accused person. The
author opines that the see-saw is not giving due weight to the accused by not
asking as a matter of requirement a leave to appeal. Accordingly, the require-
ment of a leave would ensure that the accused does not have to go through the
exaggerated trouble. Hence, scrutiny of every appeal which the victim prefers
should be done in order to ascertain whether the matter is worth looking into
or not.

C. Third, admitting appeals without a leave would disregard the

law of evidentiary burden

The evidentiary burden on prosecution has been placed by the Legislature

for a reason. Once the trial court has acquitted the accused person, the prose-
cution should again establish why an appeal lies against such acquittal by seek-
ing a leave.

Another way of perceiving this is that the presumption in favour of inno-

cence of the accused gets buttressed by the order of acquittal rendered by the
trial court. Allowing the prosecution to appeal without seeking a leave would
be a blatant disregard of the presumption of innocence and it would in fact
negate the intention of the Legislature regarding evidentiary burden.

D. Fourth, the number of pending cases will reach to an altogether

new level

This argument of the author expounds how delay in criminal process is

bound to result if this case is followed as a precedent. Pending cases are accu-
mulating in high courts despite all the means and methods adopted to reduce
the arrears. In fact, more than 13 lakh criminal cases are pending before high
courts in India.18 This adds up to the delay which is caused in effecting justice.
Many times such inordinate delay contributes to acquittal of guilty persons
either because the evidence is lost or because of lapse of time, or the witnesses

17
Jones v. State, 2004 SCC OnLine Mad 922 : 2004 Cri LJ 2755; Sharad v. State of
Maharastra, 2015 SCC OnLine Bom 5507 : (2015) 4 Bom CR (Cri) 545.
18
FE Online, “Over 4 million cases pending in High Courts of India, lower courts more bur-
dened with 2 crores cases”, Financial Express (Dec. 27, 2018), <https://www.financialexpress.
com/india-news/over-4-million-cases-pending-in-high-courts-of-india-lower-courts-more-bur-
dened-with-2-crores-cases/1426165/>.
 CNLU LAW JOURNAL–2020-21  277

do not remember all the details or the witnesses do not come forward to give
true evidence due to threats, inducement or sympathy.19 Whatever may be the
reason it is justice that becomes a casualty.20

A question now arises that how is the requirement of leave linked to this.
The answer is simple. Because every appeal will be admitted without a leave,
even those matters will be heard on appeal that do have merit or are not worth
the court’s time. This would add to the backlog of cases pending before the
higher courts and further burden them. Another way of looking at this is that
this would lead to some redundant cases being heard by the court at the cost of
some important ones which could have been given the time that was wasted on
the redundant ones.

Considering the present day scenario in India, this concern pertaining to

delay is one of the biggest reasons behind the author’s claims. Accordingly, a
leave requirement should be mandatory as it in no way curbs the rights of vic-
tims and in fact upholds the rights of accused.

V. CONCLUDING REMARK

After having presented the arguments aforementioned, the author concludes

by holding in high regard the dissenting opinion of Gupta J. in Mallikarjun
Kodagali v. State of Karnataka.

A very important aspect pertaining to seeking of leave for appeal is that

there is a possibility that the Court does not give reasons for refusing to
grant leave to file appeal against acquittal.21 The author acknowledges that
this becomes problematic and this might in fact undo the benefit of the right
to appeal given to the victim. However, considering that such non-applica-
tion mind could be challenged before a higher court and appeal could be so
granted, there should not be any problems with the imposition of the condition
of seeking leave.

19
Malimath, supra note 8, at ¶ 1.24.
20
Ibid.
21
Goyal Enterprises v. State of Jharkhand, (2008) 13 SCC 570.
 KIMBLE V. MARVEL: MISCONCEIVED
PRECEDENT OR STELLAR AFFIRMATION
—Aditya Gupta*

Abstract — A clause in the license agreement which requires

the licensee to continuously render royalty payments even after
the expiration of the patent rights has been a very controversial issue
in practice. With the infamous United States Supreme Court Ruling of
Brulotte v. Thys Co.,1 and its subsequent affirmation in Kimble v. Marvel,
the legality of continued royalties seems to be a settled provision of
law in the American Jurisprudence. Although, the judgment rendered
in Kimble v. Marvel begs the question as to whether the affirmation
was by reason of sound judicial interpretation or the coercion of Stare
Decisis. The affirmation was also critiqued as being a transparent
garb for clothing a decision rendered under the Anti-Trust laws as
one rendered within the contours of the Patent Law. The interplay
between the Rule of Reason and the Per Se rule on one hand with that
of the Patent Misuse Theory on the other was alarmingly unclear. The
three were presented as being so closely related that the two distinct
dynamics of law could very well be addressed as excessive legislation
on the same subject-matter. With the Ninth Circuit Court and the
Federal Court reluctantly barring Post-Expiry Royalty, the Supreme
Court was also witnessed as being averse to adhere to the Brulotte
Rule. The present research seeks to analyze the 2015 ruling of Kimble
v. Marvel, without the interference of Stare Decisis and defining the
contours under which the judgment was rendered (Patent Law or Anti-
Trust). The interplay between Rule of Reason and the Patent Misuse
theory so elucidated within the judgment shall also form an important
segment of the presentation. Most importantly, the stand of the Indian

*
Eight Semester (IPR Hons), National University of Study and Research in Law, Ranchi;
Jharkhand;
1
1964 SCC OnLine US SC 210 : 13 L Ed 2d 99 : 379 US 29 (1964).
 CNLU LAW JOURNAL–2020-21  279

Jurisprudence shall be assessed with reference to continued royalties,

both within the Patent Law and the Competition Law.

I. INTRODUCTION

A clause in the licensing agreement which requires the licensee to continu-

ously render royalties has undeniably been a very controversial issue in prac-
tice. Innumerable litigations concerning such payments have been brought forth
for the scrutiny of the courts. Contentions ranging from deferring of risks to
stifling innovation have time and again been cited in favour of continued roy-
alties. Although, all such contentions and arguments have been in vain because
of a per se prohibition on payments of royalties after expiration introduced in
1964 and affirmed in 2015.

The US Supreme Court has always broadened the horizons of the Patent
Misuse Doctrine ever since its inception in Motion Picture Patents Co. v.
Universal Film Mfg. Co.2 The doctrinal counter movement which was indulged
into by the Circuit Courts and the District after the Brulotte3 judgment was
finally put to rest half a decade later in Kimble v. Marvel.4 The Supreme Court
has reaffirmed the Brulotte ruling despite the oprobrium it had witnessed
across the judicial and the academic spectrum.5 The affirmation was again
marred by academic criticism and was deemed to overlook the jurisprudential
developments of the late 20th Century and the early 21st Century. The argued
shift from the Patent misuse to Rule of Reason was sought to limit the scope
of applicability of the former to ensure better distribution of risk and a better
economic environment.

The Ninth Circuit Court which dealt with the issue prior to the writ being
filed before the Supreme Court, was also as reluctant to adhere to the Brulotte
Rule.6 The dissenting opinion of the Kimble ruling and the widespread repug-
nance of the majority ruling begs the question as to whether the affirmation
was an effect of sound statutory interpretation or a judgment rendered under
the coercion of Stare Decisis. The affirmation was also critiqued as being a

2
1917 SCC OnLine US SC 86 : 61 L Ed 871 : 243 US 502, 515 (1917).
3
Brulotte v. Thys Co., 1964 SCC OnLine US SC 210 : 13 L Ed 2d 99 : 379 US 29 (1964) [Sup
Ct (US)].
4
Kimble v. Marvel Entertainment, LLC, 2015 SCC OnLine US SC 4 :192 L Ed 2d 463 : 135 S
Ct 2401 (2015) : 576 US _ (2015).
5
Molly McCartney. “Caught in the Web of Stare Decisis: Why the Supreme Court’s Holding
in Kimble v. Marvel was Wrongly Decided”, 16 Wake Forest Journal of Bussiness and
Intellectual Property Law, 492 (2016).
6
The Court called the decision counter-intuitive and based on an incorrect economic policy.
Kimble v. Marvel Entertainment Inc., 727 F 3d 856 (9th Cir 2013).
280  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

transparent garb for clothing a decision rendered under the Anti-Trust laws
as one rendered within the contours of the Patent Law. The reason for strict
adherence to the Patent Misuse and the blatant disregard of the Rule of Reason
has been the cornerstone of the critique witnessed by Kimble.

The present research directly elaborates the Brulotte rule and analyses the
judgment of the Supreme Court in Kimble v. Marvel. The advantage that aca-
demic research enjoys is that unlike judicial interpretations it is not marred by
policy concerns. Thus, the judgment of Kimble shall be analysed without the
interference of the doctrine of Stare Decisis. The historical underpinnings and
the evolution of Patent Misuse along with its current understanding in light of
its relevance with the Rule of Reason shall also form a segment of the present
research. Most importantly, there is a dearth of literature explaining the legal-
ity of continued royalties within the Indian Jurisdiction; a segment of the paper
has been dedicated to address the Indian stance on post-expiration royalties.

II. BRULOTTE RULE AND KIMBLE AFFIRMATION.

The present research hinges on the reasoning employed by the majority

while affirming the Brulotte rule. The Kimble court in 2015 abjured an oppor-
tunity to bid adieu to the per se prohibition on post expiration royalties of pat-
ents, a move which was highly sought after by the American legal diaspora.7
The Kimble case was being viewed as an opportunity to frustrate the Brulotte
ruling or at least revise it to meet the requirements of the 21st Century, in turn
the decision upheld an arguably archaic and misconceived rule of law.8

A. The Brulotte Rule

From the lower courts calling the Brulotte rule as counterintuitive9 to the
Seventh Circuit Court remarking the rule to be ‘out of touch with the Supreme
Court’s current thinking’10 , the aversion of the judiciary regarding the imple-
mentation of the rule has been a matter of public spectacle. Not only has the
judiciary been reluctant to apply the rule, the academic commentary has also
not been very forgiving.11 The decision has often been said to be a misplaced

7
The same can be evidenced by the nine amici curie filed in support of Kimble as opposed
to only five filed in support of Marvel; Also see: K. Mullaly, “Your Friendly Neighborhood
Patent License: Should Royalty Payments Based on Postexpiration Use Be Per Se
Unenforceable?”, 42 Preview of the United States Supreme Court Cases, 238 (2015).
8
Jim Day and Erik Olson, “Three Significant Upcoming Patent Law Decisions Expected from
the Supreme Court and Federal Circuit”, Fabella Braun and Martel LLP (Sep. 20, 2018),
<https://www.bakerdonelson.com/files/March%20IP%20Roundtable%20Outline.pdf>.
9
Kimble v. Marvel Entertainment Inc., 727 F 3d 856 (9th Cir 2013).
10
Scheiber v. Dolby Laboratories Inc., 293 F 3d 1014 (7th Cir 2002).
11
Herbert J. Hovenkamp, Brulotte’s Web, 11, Journal of Competition Law and Economics, 527
(2015).
 CNLU LAW JOURNAL–2020-21  281

fear of monopoly which was not tied to antitrust concerns.12 The widespread
criticism of the rule begs the question as to what is the Brulotte ruling. This
section attempts to answer the same.

In the present case, the Thys Company sold hop-picking machines which
incorporated several patents. The company extracted a licensing fee in lieu of
the machines. The licensing agreements did not discuss the last date for pay-
ment of royalties and thus the royalty payments continued after the patent expi-
ration. The purchasers subsequently discontinued the payment and a case of
infringement was registered against them. With an 8:1 division of the bench
Justice Harlan delivered the minority opinion while Justice Douglas delivered
the majority opinion and the licensing agreement was commented as being a
‘bald act of policymaking’. The majority judgment is responsible for a per se
ban on post-expiration royalties on patent licensing agreements.

Although, the dictum rendered in the case of Brulotte was not a novel line
of judicial reasoning, it was arguably brewed in the same barrel as some of
its predecessors. Precedents supported the conclusion drawn by the Brulotte
Majority. Authors quote that the first issue of post expiration royalties adju-
dicated by the US Supreme Court in Scott Paper Co. v. Marcalus Mfg. Co.
Inc.13, wherein it was held that “any attempted reservation or continuation in
the patentee or those claiming under him of the patent monopoly, after the
patent expires, whatever the legal device employed, runs counter to the pol-
icy and purpose of the patent laws.” Subsequently, the Third Circuit Court
followed a similar line of reasoning, where it was held that the patent monop-
oly was spent on the expiration of a patent and any attempt to exact royalties
after the expiration of patent term was unenforceable.14 Thus, it can very well
be submitted that Brulotte furthered the jurisprudence of the time and should
not be arraigned as the harbinger of the Per Se prohibition of Post Expiration
Royalties.

B. Marvel v. Kimble a misconceived precedent?

In the interval of 40 years between the Brulotte rule being promulgated

and the Kimble dispute being considered for adjudication by the Supreme
Court, the Per Se prohibition had witnessed abundant criticism. With Justice
Posner providing a very blunt and uninhibited criticism in Scheiber v. Dolby
Laboratories Inc.,15 along with Justice Berzon further strengthening the anti-

12
Maxwell C. McGraw, “Kimble v. Marvel Entertainment, LLC: Economic Efficiency Caught in
the Web of Improper Judicial Restraint”, 65 University of Kansas Law Review, 177 (2016).
13
1945 SCC OnLine US SC 152 : 90 L Ed 47 : 326 US 249 (1945).
14
Also discussed in Brulotte judgment, while considering the dimensions of Patent Misuse.
Ar-Tik Systems Inc. v. Dairy Queen Inc., 302 F 2d 496, 510 (3rd Cir 1962).
15
293 F 3d 1014 (7th Cir 2002).
282  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

Brulotte reasoning in the 2007 case of Zila Inc. v. Tinnell16 and the academic
diaspora publishing various articles explaining the impracticality of the
Brulotte rule17, the stage was set for an amendment to the prohibition with the
Kimble dispute.

The Kimble litigation was concerned with the licensing agreement of a toy,
over which a patent was obtained in 1991. Kimble had previously sued Marvel
for patent infringement, the litigation was finally concluded with a settlement
agreement between the parties. Kimble `royalty on ‘net product sales was
obtained. Neither did the agreement stipulate any period for which the royal-
ties were to be paid nor did the agreement stipulate any reduction in the roy-
alty rate after the expiration of the payment. Later Marvel ‘stumbled across’
the Brulotte rule and declared that they had no obligation to continue to render
royalty payment and thus began the Kimble v. Marvel spectacle.

The plaintiff argued for a departure from the Per Se prohibition, in favour
of a case-to-case Rule of Reason approach. The court would have to take into
account the anti/pro competitive features of a licensing agreement and the eco-
nomic effects which are most likely to register from the enforcement of the
agreement. While substantiating the argument, Kimble argued that the Patent
and Economic Policies favour a departure from the per se prohibition.

With a divided bench (6:3), Justice Kagan delivered the judgment which
affirmed the Per Se prohibition on post-expiration royalty arrangements, crip-
pling the concerns which were time and again cited against the Brulotte rule.
The majority opined that a licensing agreement which provides for payment
of royalties after the expiration of the patent, incorrectly extends the rights
accrued from the patent.

The most controversial dictum of the judgment which also forms the basis
of the present research was that, the dispute has been adjudicated entirely
within the contours of the Patent law and not the Anti-Trust Law. While the
latter provides for a wider scope of judicial interpretation and construction, the
applicability of the former is statutorily dictated and there is minimal scope of
judicial interpretation. Thus, any economic consideration cannot be submitted
for adjudication because of the limited interpretative scope of the Patent Act.

C. Kimble without Stare Decisis

Various authors have time and again remarked that the affirmation by the
Kimble court was not a result of sound judicial interpretation but a judgment

16
502 F 3d 1014, 1020 (9th Cir 2007).
17
“Michael Koenig, Patent Royalties Extending Beyond Expiration: An Illogical Ban from
Brulotte to Scheiber”, 2 Duke Law and Technology Review,1 (2003).
 CNLU LAW JOURNAL–2020-21  283

rendered to respect Stare Decisis.18 The Court explicitly remarked ‘an argu-
ment that we got something wrong- even a good argument- cannot by itself
justify scrapping a settled precedent.’ The Court quoted the famous statement
of Justice Brandi that it is more important the principle of law be settled than
it be settled right. The fact that Brulotte was a case of statutory construction
overlapping with the tenets of Contract Law, the force of stare decisis is at its
acme.19

Despite an unequivocal confession that the principles underlying the

Brulotte rule might be incorrect, the court declined to frustrate the settled
principle of law. Posner J.’s blunt criticism of the rule and the blatant reliance
on stare decisis by the Kimble court shows that even the judiciary is covertly
ashamed but too proud to concede.20 The conclusion of the judgment also relied
on the fact that Congress had never intervened to hold that the Per se rule
should be departed from.21 The force of Stare Decisis and Congressional con-
duct made a very strong case against the overruling of the precedent.

The dissenting opinion in Kimble v. Marvel also raise some genuine con-
cerns about the application of Stare Decisis. The dissenting opinion delivered
by Justice Alito, expressly states that Stare Decisis should not be perused to
uphold a groundless and harmful precedent. Also, the fact that Congress has
not indulged into the analysis of the viability of a precedent should not be con-
sidered as a source of authority to a bad law.22

III. PATENT MISUSE AND ECONOMIC CONCERNS

The Patent Misuse doctrine is essentially a construction of courts to elimi-

nate the patentees to extend the monopoly granted by the registration of a pat-
ent.23 The doctrine is an equitable remedy which is analogous to the ‘unclean

18
A. Balto and A.M. Wolman, “Intellectual Property and Antitrust: General Principles”, 43
IDEA : The Journal of Law and Technology 395 (2003); also see: Herbert Hovenkamp, “The
Rule of Reason”, 70, Florida Law Review, 96 (2018).
19
S.P. Waxman. “May You Live in Interesting Times: Patent Law in the Supreme Court”, 17
Chicago Kent Journal of Intellectual Property, 214 (2017).
20
Esther Valerie Mongare, “Patent Term Under Review, Kimble v. Marvel Entertainment LLC:
Patent Term and Innovation”, SSRN Electronic Journal, (2018).
21
The majority cited the case of Watson v. United States, 2007 SCC OnLine US SC 76 : 169 L
Ed 2d 472 : 128 S Ct 579 : 552 US 74, 82-83 (2007), where to court considered that no con-
gressional interference for 14 years accorded extra precedential importance to the judgment.
Also see: Sherri L. Burr et. al., Modern Intellectual Property and Unfair Competition Law
85-90 (6th edn., Foundation Press, 2017).
22
B. Orbach, “Antitrust Stare Decisis”, 15 Arizona Legal Discussion Paper, 1 (2015).
23
Feldman, R.C., (2003), “The Insufficiency of Antitrust Analysis for Patent Misuse”. Hastings
Law Journal, 55, p.399.
284  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

hands’ doctrine of Tort Law. It denies the enforcement of a patent if the paten-
tee abuses the privileges granted by the patent law.24

A. Historical Development and Underpinnings

The 1917 case of Motion Picture Patents Co.25, has often been credited to
have developed the affirmative defence of patent misuse.26 The patentee did
not allow the purchasers to show moving pictures printed on competitors’ film.
The Court reiterated the principles underlying the registration of patents and
laid down that the patent grant must be limited to the invention described in
the claims of the patent. Subsequently, the doctrine was further substantiated
in Morton Salt Co. v. G.S. Suppiger Co.27 Suppiger required that licensees of
its patented salt depositing machines use Suppiger’s unpatented salt tablets.
The Brulotte case drew its importance from the fact that the Patent Misuse
doctrine was freed from the shackles of tie-in arrangements and was imple-
mented in the purview of Post expiration royalties.

The federal courts of the late 20th Century attempted to limit the scope of
the patent misuse doctrine.28 The case of Princo Corpn. v. International Trade
Commission29 has been given special emphasis in this respect. With Princo. the
concluded contours of Patent Misuse made a showing of substantial anti-com-
petitive effect in the relevant market an essential element of proof in most mis-
use cases.30

B. Patent Misuse and Anti-Trust Analysis

The Patent Misuse as has been declared in the Kimble case, does not con-
sider any economic or competitive repercussions of the alleged misuse. An
antitrust analysis particularly the Rule of Reason, which was sought as a
replacement to the per se prohibition by Kimble, rigorously examines whether
an agreement unreasonably restricts competition.31 It means performing and

24
Daryl Lim, “Patent Misuse and Antitrust: Rebirth or False Dawn”, 20 Michigan
Telecommunications and Technology Law Review, 299 (2013).
25
Motion Picture Patents Co. v. Universal Film Mfg. Co., 1917 SCC OnLine US SC 86 : 61 L
Ed 871 : 243 US 502 (1917).
26
Cassandra Havens, “Saving Patent Law from Competition Policy and Economic Theories:
Kimble v. Marvel Entertainment LLC”, 31, Berkeley Technology Law Journal, 371 (2015).
27
1942 SCC OnLine US SC 1 : 86 L Ed 363 : 314 US 488 (1942).
28
Virginia Panel Corpn. v. Mac Panel Co., 887 F Supp 880 (W.D. Va. 1995); B. Braun Medical
Inc. v. Abbott Laboratories Inc., 124 F 3d 1419, 1426 (Fed Cir 1997); Mallinckrodt Inc. v.
Medipart Inc., 976 F 2d 700, 706 (Fed Cir 1992).
29
616 F 3d 1318 (Fed Cir 2010).
30
R. Stern, “Kimble: Patent Misuse through the Lens of Patent Policy and Not Antitrust Policy”,
38 European Intellectual Property Law Review, 183 (2016).
31
Daniel Fundakowski “The Rule of Reason: From Balancing to Burden Shifting”, 1
Perspectives in Antitrust, 2 (2013).
 CNLU LAW JOURNAL–2020-21  285

analysing any potential anticompetitive effects of a patent license and whether

there are pro-competitive effects that outweigh the anticompetitive effects.32

The doctrine of Patent Misuse before the promulgation of Kimble v. Marvel

was remarked as a ‘Patent-Antitrust Double Helix’33, wherein an antitrust
analysis could have been indulged in to specify whether or not the concerned
agreement is covered under the Patent Misuse Doctrine. In the year 2014, Prof.
Daryl Lim published an article immediately before the Kimble case was up
for adjudication before the United States Supreme Court and feared that the
Supreme Court might disrupt the understanding of the Patent Misuse which
was developed by the Federal Circuit Courts. The Supreme Court brought his
fear to reality when they explicitly declared that a Patent Misuse case could not
indulge in an antitrust analysis.

Other authors have also opined that a rule of reason approach is far supe-
rior than a per se prohibition on the provision of Post-Expiration Royalties. For
instance, an article published in 2016 in the Journal of Intellectual Property
Law, espouses the view that a patent monopoly does not essentially necessitate
a leverage or coercion in and of themselves.34 The modern antitrust principles
coupled with traditional judicial tools to confront fraud and coercion, are much
better suited than per se or artificial rules that presume a harm or use of lev-
erage that may not in fact be present. The argument fostered is one of merit,
not all patents ensure a leverage over an extremely competitive market, all they
accord is a possible market power.

Instead of providing a blanket prohibition, which stems from the reasoning

that all patents entitle the patent holder to coerce the market into self-harm-
ing contractual relationships, the Courts should actually inquire into the fact
whether the questioned practice imposes an unreasonable restrain on competi-
tion, taking into account. If the answer is affirmative, the Courts can very well
declare the agreement void and restore what is espoused in Kimble, otherwise
by following this approach, the court stifles various patents which probably
required a longer time to realize the investment.

IV. CRITICISING KIMBLE

Innumerable academic papers since the promulgation of the Kimble v.

Marvel ruling in 2015 have strongly criticised the affirmation of the Brulotte
rule. These criticisms can be broadly categorized in two different concerns.
32
Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and
Competition (US Department of Trade and the Federal Trade Commission) (2007).
33
Lim, D., (2013), “Patent Misuse and Antitrust: Rebirth or False Dawn?”, Mich. Telecomm. &
Tech. L. Rev., 20, p. 299.
34
L. Warren and L. Wale, “Rule of Reason for Post-Expiration Patent Royalties”, 11, Journal of
Intellectual Property Law and Practice, 37 (2016).
286  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

The first one being concerns which stem from the legal principles involved
in the promulgation of the rule, and the second one being the concerns which
stem from equity and are not necessarily dependent on legal principles. For the
sake of brevity, the former is labelled legal concerns and the latter is policy
concerns.

A. Policy Concerns

ƒƒ Economic Inefficiency

The Brulotte judgment itself provided for contracting clauses which could
be incorporated to negotiate around the Brulotte prohibition. Kimble followed
the same trend and enumerated the contracts which are not prohibited by the
ruling. Authors have often suggested that these measures clearly indicate the
court’s acquiescence of the fact that the rule being promulgated by them comes
with its fair share of economic headaches.35

The alternate contracting arrangements are an economical inefficiency in

themselves. The Courts expect that the parties draft and word their licensing
agreement specifically keeping in mind the drafting plot embodied in the judg-
ments. If such a trend of judicial intervention is allowed, the list of judgments
which would require compliance would become very labyrinthine.36

ƒƒ The ‘stumbled across’ contracting manoeuvre.

The most important policy concern relating to the Per Se prohibition stems
from the fact that it can very well be perused as a tool to mislead the licensor
into lower royalty rates. The factual scenario in Kimble v. Marvel is a clas-
sic example of this exercise. Marvel argued that they have ‘stumbled across’
Brulotte and subject to the rule enunciated therein they are not willing to pay
any royalties to Kimble henceforth. Marvel’s submission seems to be a bit too
convenient.

Parties which do not possess the legal acumen or the resources might be
unaware of the Brulotte rule shall be at the losing end of the licensing agree-
ment37. The parties which are well aware of the rule would ensure lower roy-

35
McGraw, M.C., 2016. “Kimble v. Marvel Entertainment, LLC: Economic Efficiency Caught in
the Web of Improper Judicial Restraint”. U. Kan. L. Rev., 65, p.177.
36
A similar view was posited in the Amicus Brief of Memorial Sloan-Kettering Cancer Center
in conjunction with other research centres. Kimble v. Marvel Entertainment, LLC, 2015 SCC
OnLine US SC 4 :192 L Ed 2d 463 : 135 S Ct 2401 (2015) : 576 US _ (2015), 2015 WL
673668
37
J. Rantanen, “Exorcising the Spirit of Justice Douglas”, PATENTLYO (Oct. 20, 2018), <https://
patentlyo.com/patent/2015/04/exorcising-justice-douglas.html> (last visited Oct 20, 2018) Also
see: S. Doyle, “Brulotte Rule upheld despite suspect economic rationale”, LAWS360 (Oct. 20,
 CNLU LAW JOURNAL–2020-21  287

alty payments extended over a longer period and subsequently can take refuge
in the Per Se ban to frustrate the agreement. Thus, opportunistically taking
unfair advantage at the cost of the other parties.

B. Legal Concerns

ƒƒ No statutory construction

The Kimble Court repeatedly argued that the Brulotte rule was based on
statutory consideration of Patent Law and Contractual Law. Thus, emphasizing
the effect of Stare Decisis on the judgment. Whereas, the fact of the matter
is that apart from a passing reference made to the Article 8 of the American
Constitution, no specific interpretation of singular provisions of the patent law
was indulged into by the Brulotte Court.

ƒƒ Assumption of coercion and leveraging

The Brulotte court had opined that post expiration royalties increase the
duration of the patent monopoly accorded to a patent by the sovereign author-
ity. Such interpretation is erroneous subject to the fact that registration of
a patent essentially embodies a ‘Right to exclude’, which entitles the patent
holder to exclude any person from infringing his patent.38 With the expiration
of the Patent, the Right to Exclude also expires39 and the technical know-how
encapsulated by the registration is open to exploitation by the general public.
The relationship between the licensor and licensee is not accrued from Patent
Laws but from the contractual relationship they have previously indulged into.

The only case where the post-expiration royalties can extend the scope of a
patent is when the patent enjoys tremendous market power and the licensor is
able to coerce the licensee into an extended payment period for the patent. As
has been previously elaborated, not all patents enjoy such market power and
the Supreme Court’s assumption is completely misplaced.

ƒƒ Post-expiration licensing of Trade Secrets-Listerine Case

The Per Se ban on Post Expiration Royalties stifles competition because it

disincentivises the registration of a patent, which is necessary to ensure that
the patent comes into the public domain. The inventor can instead of register-
ing his invention as a patent can protect his invention as a Trade Secret. There

2018), <http://www. americanbar.org/content/dam/aba/publications/antitrust_law/ at303000_

ebulletin_20130122.authcheckdam.pdf>.
38
Herbert J. Hovenkamp, “Brulotte’s Web”, 11, Journal of Competition Law and Economics, 527
(2015).
39
A. Balto & A.M. Wolman, “Intellectual Property and Antitrust: General Principles”. 43 IDEA:
The Journal of Law and Technology, 395 (2003).
288  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

is no prohibition on exacting Post-Expiration Royalties from Trade Secrets. The

following two cases can further elaborate the scope of this hypothesis:

Warner-Lambert Pharmaceutical Co. v. John J. Reynolds Inc.40 , popularly

known as the Listerine Case. The case involved the licensing of the formula
which was required for the production of Listerine. A licensing agreement
was entered into with Dr. Lawrence for the Listerine formula. By the time the
case was instituted a royalty amount of almost $2.2 billion had already been
paid with an accrued income of over $1.5 billion due to be paid every year.
Although, the Listerine Formula had been completely in the public domain
and had even once been published in the National Formulary and Journal of
American Medical Association. The fact that the formula was public knowl-
edge was not attributable to negligence by the plaintiff or any of his predeces-
sors. The question was whether after 75 years of paying royalty, the plaintiff
was supposed to continue the rendering of royalties? The Court answered in
affirmative and declared that there is no bar on the payment of indefinite roy-
alties and that the term of royalty payments shall be determined according to
the terms of the licensing agreement.41 Another such instance where post-expi-
ration royalties in case of trade secrets was allowed is Aronson v. Quick Point
Pencil Co.42

ƒƒ A nuanced understanding of Patent Misuse

The jurisprudence behind the application of patent misuse witnessed signif-

icant development ever since the Brulotte judgment. Although, thoroughly cri-
tiqued43, the Princo case has had a very important impact on the understanding
of the Patent Misuse Doctrine. With the Princo ruling patent misuse juris-
prudence was substantially entangled with Anti-Trust concepts. The judgment
unequivocally provided that misuse occurs when and only when the patentee
“impermissibly broadens the physical and temporal scope of the patent grant
with anticompetitive effects”.

Kimble reaffirms the doctrine of cases holding that misuse is not antitrust
and does not need a showing of actual anticompetitive effects. Without a delib-
eration over the Federal Circuit Courts’ stride in the understanding of Patent
Misuse the Supreme Court overruled the Circuit Courts’ 40 years’ worth of
efforts.

40
178 F Supp 655 (SDNY 1959).
41
Wie Lin Wang. “A Study on the Legality of Royalty Collection Clauses after Expiration of
Patent Rights”, 15 The John Marshall Review of Intellectual Property Law, 214 (2016).
42
1979 SCC OnLine US SC 33 : 59 L Ed 2d 296 : 440 US 257 (1979).
43
S. Zain. “Misuse of Misuse: Princo Corp. v. International Trade Commission and the Federal
Circuit’s Misguided Patent Misuse Jurisprudence”, 13 North Carolina Journal of Law and
Technology, 95 (2011).
 CNLU LAW JOURNAL–2020-21  289

V. INDIAN PERSPECTIVE

A. Indian Perspective

The history of patent misuse can be traced back to the Tek Chand
Committee Report which submitted its interim report on 4th August, 1949 with
recommendations for prevention of misuse or abuse of patent right in India and
suggested amendments to sections 22, 23 & 23A of the Patents & Designs Act,
1911 on the lines of the United Kingdom Acts, 1919 and 1949. Based on the
recommendations of the Committee, a bill was introduced in the Parliament in
1953. However, the Government did not press for the consideration of the bill
and it was allowed to lapse.

With the advancement in the statute on the patent abuse hypothesis over the
globe, the Indian government in the year 2008 presented a Department-Related
Parliamentary Standing Committee Report on “Patent and Trade System in
India”. The Department of Scientific and Industrial Research has evocated the
indispensability of a strong licensing system in the country for ensuring busi-
ness development.44 A resolution of the abovementioned legal conundrum is
necessary for strengthening the licensing system.

Be that as it may, the oppression remains is that the Indian courts are yet
to propound any judgment based on patent abuse precept unequivocally.
Nonetheless, in Telefonaktiebolaget LM Ericsson v. Competition Commission of
India45 the issue of abuse of patent rights resulting in anti-competitive conse-
quences was raised, which in a nutshell is the essence of patent misuse. The
defendant companies, Micromax and Intex, had accused the plaintiff company,
Ericsson, of abusing its position of dominance. Ericsson had entered into sep-
arate licensing agreements with Micromax and Intex in respect of Standard
Essential Patents. It was alleged that Ericsson was extorting unfair royalty
rates and limiting the development of technology in the relevant field by seek-
ing such high royalties, since the Indian manufacturers were being denied
market access. The Competition Commission of India in its order held that
the practices adopted by Ericsson were against the principle of FRAND (fair-
ness, reasonableness and non-discrimination). The court held that pressurising
the implementer to accept non-FRAND terms amounted to abuse of dominant
position.

The ground for allegations against Ericsson was section 4 of the

Competition Act which prohibits abuse of dominant position by any enterprise.
Demanding excessive royalties was read into denial of market access which

44
Department Related Parliamentary Standing Committee on Commerce, 88th Report on
Patents and Trade Marks Systems in India (Parliament of India) (2018).
45
2016 SCC OnLine Del 1951.
290  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

constituted abuse of dominant position. The question of whether seeking royal-

ties beyond expiry of patent also constitutes abuse of dominant position has not
yet being raised.

As has already been observed by the researchers in the present research,

there is an acute paucity of literature on the issue of post-patent royalties in
India except for a 2009 Delhi High Court judgment46 which simply holds that
patent-holder cannot demand post-patent royalties, without actually proffering
any rationale for the same. The court clearly observed that:

“Where the statute provides that the patent is allowed only

for a limited period, the license of the patent cannot extend
beyond that limited period. A license agreement for pat-
ents can be valid only during the currency of the patent.
Where the patent itself expires, the license of the patent also
expires”.

A similar unsubstantiated rule has been propounded by Dr. Versha Vahini,

who opined that within the Indian Legal Spectrum an agreement requiring roy-
alties to be paid even after the patent has expired constitutes as being a prac-
tice which hampers competition.47

However, whether such practice is anti-competitive in nature is yet to

be examined. Accordingly, keeping in view the above perceptions made, the
researchers do not falter in saying that the Indian judicial system is a long way
behind the truth and now it is the need of the hour that judiciary must consider
such misbehaviours and solidly settle upon it.

VI. RECOMMENDATIONS AND CONCLUSION

The majority in Kimble relied on the doctrine of Stare Decisis to uphold the
Brulotte rule. What should have been considered as a guide to judicial inter-
pretation was accorded the credence of a God and thus, deviation from it was
conscientiously abhorred. The purpose of the doctrine is to ensure stability
of laws to ensure stability in commercial agreements and to allow the public
to enter into legally binding covenants, with absolute certainty. The trade-off
between stability and reasonability is one of essence here. Trading reasona-
bility for stability should not be indulged into by the Courts. Reasonable laws
are far more important than stable laws, as was highlighted in the dissenting
opinion. While acknowledging that Brulotte may hinder innovations or obstruct
competition in some circumstances, the Court doled the responsibility on the

46
National Research Development Corpn. v. ABS Plastics Ltd., 2009 SCC OnLine Del 605 :
(2009) 40 PTC 613.
47
Versha Vahini , Indian Competition Law 137 (1st edn., Lexis Nexis).
 CNLU LAW JOURNAL–2020-21  291

Congress to legislate the relevant prohibition. This violates the sanctity of the
three pillars understanding of a democratic setup and the idea of Separation of
Powers.

As far as the Indian Jurisdiction is concerned, it is an accepted fact that

the IP jurisprudence of Indian Courts lags far behind that of its Western
Counterparts. Although, the applicability and understanding of Post Expiration
Royalties is nowhere to be found within the legislative framework or the
Judicial Opinion. The skewed dictum available provides a very unsubstantiated
prohibition on continued royalties, the reasoning and authorities to which are
nowhere to be found. What is necessary is the judiciary and legislature along
with the relevant governmental institutions (Example: Competition Commission
of India) duly take this into account and frame a policy which addresses the
present conundrum.

The collection of royalties from expired patent presents a plethora of pros

and cons. Thus, a blanket prohibition of such arrangements cannot be appre-
ciated as a solution. What is required is a carefully drafted set of rules which
amongst them provide a guiding list of relevant and irrelevant effects of such
agreements which should be appreciated in individual cases. The guiding prin-
ciples shall ensure a stability in judicial pronouncements and a shall confirm
that the scales of justice are levelled.

BIBLIOGRAPHY
Journal Articles
1. A. Balto & A.M. Wolman, Intellectual Property and Antitrust: General
Principles. 43 IDEA: JOURNAL OF LAW AND TECHNOLOGY, 395
(2003).
2. Austin Roche. Kimble v. Marvel Entertainment, LLC: Economic
Argument Defeated; Superpowered Stare Decisis Prevails, 12
JOURNAL OF BUSSINESS AND TECHNOLOGY LAW PROXY, 1
(2017).
3. B. Orbach. Antitrust Stare Decisis. 15 ARIZONA LEGAL
DISCUSSION PAPER, 1 (2015).
4. Cassandra Havens, Saving Patent Law from Competition Policy and
Economic Theories: Kimble v. Marvel Entertainment, 31, BERKLEY
TECHNOLOGY LAW JOURNAL, 371 (2015).
5. Daniel Fundakowski. The Rule of Reason: From Balancing to Burden
Shifting. 1 PERSPECTIVES IN ANTITRUST, 2 (2013).
292  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

6. Daryl Lim, Patent Misuse and Antitrust: Rebirth or False Dawn, 20

MICHIGAN TELECOMMUNICATION AND TECHNOLOGY LAW
REVIEW, 299 (2013).
7. Esther Valerie Mongare. Patent Term Under Review, Kimble v Marvel
Entertainment LLC: Patent Term and Innovation, SSRN ELECTRONIC
JOURNAL, (2018).
8. Feldman R.C., The Insufficiency of Antitrust Analysis for Patent Misuse,
55, HASTINGS LAW JOURNAL 399 (2003).
9. Herbert J. Hovenkamp, Brulotte’s Web, 11, JOURNAL OF
COMPETITION LAW AND ECONOMICS, 527 (2015).
10. Herbert Hovenkamp, The Rule of Reason, 70, FLORIDA LAW
REVIEW, 96 (2018).
11. K. Mullaly. Your Friendly Neighbourhood Patent License: Should
Royalty Payments Based on Post expiration Use Be Per Se
Unenforceable?, 42 PREVIEW OF THE UNITED STATES SUPREME
COURT CASES, 238 (2015).
12. L. Warren & L. Wale. Rule of reason for Post-Expiration Patent
Royalties, 11, JOURNAL OF INTELLECTUAL PROPERTY LAW
AND PRACTICE, 37 (2016).
13. Maxwell C. McGraw. Kimble v. Marvel Entertainment, LLC: Economic
Efficiency Caught in the Web of Improper Judicial Restraint, 65
UNIVERSITY OF KANSAS LAW REVIEW, 177 (2016).
14. Michael Koenig, Patent Royalties Extending Beyond Expiration:
An Illogical Ban from Brulotte to Scheiber, 2 DUKE LAW AND
TECHNOLOGY REVIEW, 1 (2003).
15. Molly McCartney. Caught in the Web of Stare Decisis: Why the
Supreme Court’s holding in Kimble v. Marvel was Wrongly Decided, 16
WAKE FOREST JOURNAL OF BUSSINESS AND INTELLECTUAL
PROPERTY LAW, 492 (2016).
16. R. Stern. Kimble: Patent misuse through the lens of patent policy and
not antitrust policy, 38 EUROPEAN INTELLECTUAL PROPERTY
LAW REVIEW, 183 (2016).
17. S. Zain. Misuse of Misuse: Princo Corp. v. International Trade
Commission and the Federal Circuit’s Misguided Patent Misuse
Jurisprudence, 13 NORTH CAROLINA JOURNAL OF LAW AND
TECHNOLOGY, 95 (2011).
 CNLU LAW JOURNAL–2020-21  293

18. S.J. Waxman. May You Live in Interesting Times: Patent Law
in the Supreme Court, 17 CHICAGO KENT JOURNAL OF
INTELLECTUAL PROPERTY, 214 (2017).
19. Wie Lin Wang. A Study on the Legality of Royalty Collection Clauses
after Expiration of Patent Rights, 15 THE JOHN MARSHALL
REVIEW OF INTELLECTUAL PROPERTY LAW, 214 (2016).

CASES
United States Jurisdiction
1. Aronson v. Quick Point Pencil Co, 440 US 257 (1979).
2. Ar-Tik Systems Inc. v. Dairy Queen Inc., 3 Cir., 302 F.2d 496, 510.
3. B. Braun Med. Inc. v. Abbott Labs, 124 F.3d 1419, 1426 (Fed. Cir.
1997).
4. Brulotte v. Thys Co., 379 U.S. 29 (1964).
5. Kimble v. Marvel Entertainment LLC, 135 S. Ct. 2401 (2015).
6. Mallinckrodt Inc. v. Medipart, 976 F.2d. 700, 706 (Fed. Cir. 1992).
7. Marvel Entertainment, LLC v. Kimble, 727 F. 3d 856 (9th Cir. 2013).
8. Morton Salt v. Suppiger, 314 U.S. 488 (1942).
9. Motion Pictures Patents v. Universal Film Manufacturing Co.243 U.S.
502 (1917).
10. Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014 (7th Cir. 2002).
11. Scott Paper Co. v. Marcalus Manufacturing Co., 326 US 249 (1945).
12. Virginia Panel Corp. v. Mac Panel Corp., 887 F. Supp. 880 (W.D. Va.
1995).
13. Warner Lambert Pharmaceutical Co. v. John J. Reynolds, 178 F Supp
655 (SDNY 1959).
14. Watson v. United States, 169 L.Ed.2d 472 (2007).
15. Zila Inc v. Tinnell, 502 F 3d 1014 (9th Cir 2007).

Indian Jurisdiction
1. National Research Development Corp. v. ABS Plastics Ltd. 2009 (40)
PTC 613 (Del).
2. Telefonaktiebolaget LM Ericsson (PUBL) v. CCI, 2016 SCC OnLine Del
1951.
294  KIMBLE V. MARVEL: MISCONCEIVED PRECEDENT OR STELLAR AFFIRMATION

Miscellaneous
1. Antitrust Enforcement and Intellectual Property Rights: Promoting
Innovation and Competition (US Department of Trade and the Federal
Trade Commission) (2007).
2. Department-Related Parliamentary Standing Committee on Commerce,
88th Report on Patents and Trademarks Systems in India (Parliament of
India) (2018).
3. J. Rantanen, Exorcising the Spirit of Justice Douglas, PATENTLYO
(Oct. 20, 2018), https://patentlyo.com/patent/2015/04/exorcising-jus-
tice-douglas.html (last visited Oct 20, 2018).
4. Jim Day & Erik Olson, Three Significant Upcoming Patent Law
Decisions Expected from the Supreme Court and Federal Circuit,
FABELLA BRAUN AND MARTEL LLP (Sep. 20, 2018), https://www.
bakerdonelson.com/files/March%20IP%20Roundtable%20Outline.pdf.
5. S. Doyle, Brulotte Rule upheld despite suspect economic rationale,
LAWS360 (Oct. 20, 2018), , http://www. americanbar.org/content/dam/
aba/publications/antitrust_law/ at303000_ebulletin_20130122.authcheck-
dam.pdf.

Books
1. SHERRI L. BURR et. al., MODERN INTELLECTUAL PROPERTY
AND UNFAIR COMPETITION LAW 85-90 (6th ed. Foundation Press
2017).
2. VERSHA VAHINI, INDIAN COMPETITION LAW 137 (1st Edition
Lexis Nexis).
 JOSEPH SHINE V. UNION OF INDIA
CITATION: (2019) 3 SCC 39 CASE COMMENT
—M. Sri Atchyut

Case Comment on Joseph Shine v. Union Of India:

Citations - (2019) 3 SCC 39 Or (AIR 2018 SC 4898)

Abstract — The case commentary is about the latest precedent

decided by the Hon’ble Supreme Court of India of Joseph Shine
v. Union of India1. It is about the Section 497 of the Indian Penal Code,
1860. The commentary includes a brief understanding of the precedent
and questions involved in the case and their analysis in detail. This
study of the present case helps in detailing and particularizing the
changes or the amendments made in the Section 497, 1860 of the Indian
Penal Code, 1860 and the position of law thereto.

In my limited understanding of the Precedent which is based on the

concept of Adultery under Section 497 of the Indian Penal Code, 1860
and while interpreting the necessary paragraphs of the said judgment
and also about the said section on date.

It helps a person to understand whether it is a wrong or not though

maximum number of the people in the country are aware and know
what is right and what is wrong.

Finally, the title itself suggests that it is the action or an activity

involving the acts like law - breaking which in itself includes acts like
criminality and which helped the people know that the law has been
replacing itself over the period of time

*
B.A. L.L.B (Third Year Student), Symbiosis Law School, Hyderabad, Symbiosis International
(Deemed) University
1
Joseph Shine v. Union of India, (2019) 3 SCC 39.
296 JOSEPH SHINE V. UNION OF INDIA CITATION: (2019) 3 SCC 39 CASE COMMENT

Further this study will analyse on the legality of the said Section, the
amendments in the light of the decision of the Hon’ble Supreme Court
of India. The case study and the current legal proposition will form the
essence of this Paper.

I. INTRODUCTION

The concept of Adultery is outlined in various laws. The present paper

mainly concentrates on the concept of Adultery which is mentioned under
Section 497, Indian Penal Code, 1860 although the same deals with the
Adultery under the Hindu Marriage Act, 1956 which is mentioned as
“Voluntary Sexual – Intercourse” in the said Statue. The adultery under the
Section 497 is a criminal offence which is punishable under the penal provi-
sion as above mentioned.

The Act if committed and is proved to be guilty shall be punished with

“imprisonment of either description for a term which may extend to five years,
or with fine, or with both” therefore this act provides punishment only for men
and not for women. Therefore this act has found to be discriminatory by the
Hon’ble courts under the adulterous acts so the section has been decriminal-
ized by the Hon’ble Supreme Court very recently.

Adultery as an offence is decriminalized but the outcomes of such an Act,

have greater impact on the society at large. At the most the Act even when
decriminalised still manages to retain the element of “mens rea” therefore an
Act followed by “mens rea” is now going unpunished. The consequences of
such a decision, is that a Criminal Act is no longer accounted for under the
Indian Penal Code, 1860. It is so that this research paper is an attempt to
examine the deviation from the Supreme Court Judgement, how the present
scenario can also have an adversarial affect. Further it is observant from the
given paper that the idea and the outcome of this is to cover all the areas and
legal possibilities that might arise in various circumstances.

It is further so that the – legal analysis, case law explanatory and the sub-
jective interpretation of the topic mentioned above form the basis in explaining
the topic in an all comprehensive manner.

II. COMMENT ON JOSEPH SHINE V. UNION OF INDIA

Citations - (2019) 3 SCC 39 (or) AIR 2018 SC 4898

 CNLU LAW JOURNAL–2020-21  297

A. Brief Analysis

Equality as guaranteed by the Indian Constitution shall be one of the impor-

tant considerations in deciding the rights of women in the society. Many a pro-
vision is enshrined in the Indian Constitution to ensure that every citizen leads
a life of dignity. Every citizen despises unwanted intrusions. Therefore, it is
needless to say that every woman is guaranteed the right of privacy, which is
the fundamental aspect of dignity.

Legality of gender subordination is no concept or choice that shall be

allowed to persist. The governing law shall prevail over and above the societal
norms. The Supreme Court is right in echoing that its views which are in con-
sonance with the present-day societal norms and values shall not be overshad-
owed or persuaded by the or the exhortations in the precedents that governed
the bye gone days and which are no longer pertinent to the evolved norms of
the present day. Age old customs and traditions of the past based on prejudices
and predilection have no place and time has come for the same to give way to
the progressive thoughts of the modern generations who regard marriage as a
partnership between equals in which bigotry has no place and where there is
only caring and sharing. Their concern is common in all spheres of matrimo-
nial companionship.

Courts have firmly persuaded people to come out of the obnoxious stance
that a woman is a man’s property. We have left far behind the dark years; a
new era has dawned on us. Henceforth, let us not look back; but, march for-
ward. In fact, the citizenry of the Country did well in asking the Supreme
Court to give a relook and examine afresh the current relevance of Section
4972 of the Indian Penal Code, 1860. The Supreme Court acceded. And, indeed
we have advanced skillfully and with ease.

The court in the instant judgment has spoken of consent as a tool and noted
that when the consent of the husband is obtained the adulterous act committed
is made good. The law of adultery is made to punish the man in the absence of
consent that too on the complaint of the husband of the woman, who is a party
to the Act of adultery. Therefore, such a law which encourages male chauvin-
ism and egotism has to be necessarily considered as feudal and unbalanced.
Any such law can never fit into the constitutional scheme and hence cannot be
allowed to be on the statute book any longer. Nonetheless, if one has to take
another view and if the penal provision has to stay, it requires drastic redraft-
ing to remove the absurdities and balance the interests of men and women
evenly. I prefer to take the latter view.

2
Indian Penal Code, 1860 (Act No. 13 of 2013).
298 JOSEPH SHINE V. UNION OF INDIA CITATION: (2019) 3 SCC 39 CASE COMMENT

It is significant to note that the adulterous acts have multiple off shoots.
Some men and women in the absence of threat of incarceration may freely
indulge in such acts, which are henceforth not punishable. Adultery may now
become rampant on account of unbridled freedom backed by fearlessness due
to absence of law. Viewed from the Indian Context, many women would sure
be the victims at the hands of the husbands for reasons not far to seek. Many
sections of women in the Country are still languishing under the old school of
thought that a husband is whole and soul. Instances of adultery may from now
on lead to increase in number of couples having no concord in matrimonial
relationship. Some such acts may result in physical and psychological estrange-
ment between the spouses. Nevertheless, adultery continues to be a ground for
divorce.

A man who may be having an extra martial relationship and who is not
interested in leading family life with his wife may openly and blatantly indulge
in acts of adultery to force the wife to seek divorce or remain a silent suf-
ferer. In Paragraph 83 while dealing with the question if Section 497 of the
IPC is contravening Arts. 14 and 15 of the Indian Constitution- the courts have
read into the verbatim of Arts. 144 and 155 with an alienated view of protect-
ing women alone and not with a overbearing view of the societal impediments,
which have been successful in protecting women by a virtue of institution of
marriage. The social security offered by way of marriage, cannot be taken
away by interpreting Arts. 14 and 15 to be violative of discrimination elevated
under Section 497 of IPC. Keeping in view the dictum in the precedential
guidance in the decision of the Supreme Court which upheld the constitutional
validity of the section of law dealing with restitution of conjugal rights, it is
trite to mention that the provisions of the Articles of the Indian Constitution
dealing with fundamental rights have to be guardedly applied while dealing
with personal laws of marriage and offences related to marriage.

Further, it is the job of this Supreme Court to bridge the gap and to make it
a punishable offence when committed within four walls of marriage by either
of the spouse. It is so that Arts. 14 and 15 cannot be interpreted in a manner
to strip the women of her right to lead a protected marital life, especially when
the same is protected by law through various family laws in the country. The
Fundamental rights so to speak shall be prevailing all through the acts of a
man and women, their interpretation cannot dilute the element of offence under
Section 497 of IPC that is in-turn an impediment to such fundamental rights.

The golden triangle, when put within the facade of Section 497 of IPC,
does no doubt elevate the gender gap; however, the same will never dilute

3
Joseph Shine v. Union of India, (2019) 3 SCC 39, p. 78.
4
Constitution of India, Art. 14.
5
Constitution of India, Art. 15.
 CNLU LAW JOURNAL–2020-21  299

the offence of adultery. Instead of annulling the law, the gender gap can be
bridged by amending the penal provision suitably. No doubt, an offence is an
act or omission made punishable by law; the act of adultery though not made
punishable, the Society at large still considers such an act as an unacceptable
act or wrong. Hence, Arts. 14, 15 and 21 can only be invited and allowed to
have a role play while suitably interpreting the law or redrafting the law. The
section of law could have been read down and could have been suitably inter-
preted to meet the needs of the present day; further, resort could have been had
to Art. 142.

B. Response to Paragraph 50

In response to Paragraph 426 be it stated that the criminal character always

flows into the act of Adultery, as the act is committed with mens rea; mens
rea is evident as the act is committed conscientiously with the knowledge that
the persons committing are violating the promises made to their respective
spouses or one of them, as the case may be, and as such persons always prefer
to commit the acts of adultery in secrecy. They intend to hide the act from the
spouse of the participating party and literally indulge in the act of cheating.
As marriage governs the cohabitation between man and women, when either
of them invites a third party of any gender to participate in such cohabitation
with intent to cheat, such illegal act shall be punishable and therefore such ille-
gal acts shall be fastened with criminal liability.

III. CONCLUSION

To conclude Adultery was an offence till this Precedent was decided by the
Hon’ble Supreme Court and after this precedent was decided it is considered to
be no more an offence. Under the (IPC) Indian Penal Code, 1860 the Adultery
is an Offence. The author feels that Adultery is an act and it should be consid-
ered as an offence.

The study helped the author to understand the concept and he is of the opin-
ion that Adultery must be considered as an Offence and now it an is act which
is not punishable under the law which had prescribed the punishment for said
offence and now it has been decriminalized by the Hon’ble Supreme Court in
this case.

Therefore, to conclude it can be said that Adultery is no more a punisha-

ble offence under the Section 497 of the Indian Penal Code (IPC), 1860 and
the same law had provided for the punishments for persons involving in such
offences before passing of the precedent. The law is no more an offence and is
discussed, response is given to the Precedent in detail.
6
Joseph Shine v. Union of India, (2019) 3 SCC 39, p. 98.
 CASE COMMENT: KARNAIL SINGH
AND OTHERS V. STATE OF HARYANA
ANIMALS ARE LEGAL
PERSONS WITH PARENTS
—Pankhuri Bhatnagar

Abstract — On 2nd June, 2019, the Punjab and Haryana High

Court made history by passing an applaudable judgment declaring
that all animals are ‘legal persons’ and have their own set of rights, just
like human beings do. The purpose of the case comment is to analyse
the various aspects of this unique decision, study the background in
which it was passed and highlight the lacunae, if any, in the judgment.

In Karnail Singh v. State of Haryana, the plight of 29 exported cows

was assessed. This became part of a much larger debate about the
various rights and freedoms animals possess. Although there are
numerous pre-existing statutory laws and constitutional provisions
for protection of animals, they merely punish humans for committing
certain crimes with respect to animals. They do not accord the status
of a legal person to animals, nor do they talk about giving them any
separate rights. Animals are not merely ‘things’ or ‘property’. They
are living beings just like the rest. In view of the cruelty animals are
subjected to every day and their ‘use and abuse’ by humans for their
own purposes, it is necessary to grant the former with rights.

My research has highlighted certain lacunae and contradictions in the

judgment of the court, which must be addressed in order to prevent
any grey areas in compliance with it. The progressive interpretation
adopted by the Indian Judiciary is also worthy of admiration. I
believe the idea behind the order to be appropriate and backed by
legal reasoning. It is an ardent hope that this decision would act as a
 CNLU LAW JOURNAL–2020-21  301

stepping stone for improving the plight of animals and will bring an end
to speciesism and animal cruelty.

I. INTRODUCTION

On 2nd June, 2019, the Punjab and Haryana High Court made history by
passing an applaudable judgment1 declaring that all animals are ‘legal persons’
and have their own set of rights, just like human beings do. In its 104 page
order, the court recognized that all animals have honour, dignity and certain
other inherent rights, which must be protected by law. The entire animal king-
dom, including aquatic and avian species are declared to be legal entities hav-
ing a distinct persona, along with corresponding rights, duties and liabilities of
living persons.

The Bench issued 29 mandatory directions pertaining to the welfare of the

‘animal kingdom’ including directions relating to veterinary care, housing, and
food for animals. This remarkable judgment ensures that animals will not be
treated like mere property. They are no longer an object for humans to ‘use
and abuse’, rather, humans have now been given the responsibility to be a par-
ent or guardian to animals (loco parentis). The judgment has been applauded
by various animal rights activists who believe it should be enforced in all
States and not just be limited to Punjab and Haryana.

II. FACTS OF THE CASE

The matter was brought to light in Karnail Singh v. State of Haryana.

Certain police officials were on patrolling duty on Meerut Road. They received
information regarding export of cows to Uttar Pradesh in trucks. A police
picket was laid down at the Haryana-Uttar Pradesh boundary. Both trucks were
stopped while crossing and 29 cows were recovered. The drivers and conduc-
tors were apprehended. The cows were medico-legally examined and sent to
the nearest Gaushala. The petitioners were convicted and sentenced by the
learned Trial Court to undergo imprisonment for a period of two years and to
pay a fine of Rs. 1500/- each for the offence under Sections 4B/8 of Punjab
Prohibition of Cow Slaughter Act.2

The present case was a revision petition against this judgment, whereby
the conviction was maintained but the sentence was reduced from two years

1
Karnail Singh v. State of Haryana, 2019 SCC OnLine P&H 704.
2
S. 4-B - Any person desiring to export cows shall apply for a permit to such officer, as the
Government may, by notification, appoint in this behalf, stating the reasons, for which they
are to be exported together with the number of cows and the name of the State to which they
are proposed to be exported. He shall also file a declaration that the cows for which the per-
mit for export is required shall not be slaughtered.
302  CASE COMMENT: KARNAIL SINGH AND OTHERS V. STATE OF HARYANA

to six months by the Appellate Court. Since the case involved the export of
29 cows in appalling conditions from Uttar Pradesh to Haryana—a distance of
at approximately 600 kilometres, an effort was made to understand what these
animals actually go through. Justice Sharma pronounced, “We must show com-
passion towards living creatures. Animals might be mute but we, as a society
are to speak on their behalf. No agony or pain should be caused to them.”

III. BACKGROUND

The fact that animals require protection from certain human Acts has been
recognized by various legislative enactments and has even found a place in the
Constitution of India. The following is relevant in this regard-

A. Constitutional Provisions

It is the fundamental duty of all citizens under the Constitution3 to have

compassion for living creatures. It should be the endeavour of the State under
Article 48 to organize agriculture and animal husbandry and to take steps for
preserving and improving the breeds. The State Government is responsible for
protecting and improving the environment and for safeguarding the wild life of
the country as per Article 48-A of the Indian Constitution.

B. Statutory Enactments

There are various Acts wholly dedicated to affording protection to animals,

such as Prevention of Cruelty to Animals Act, 1960 (PCA Act), Wild Life
(Protection) Act, 1972 and the Biodiversity Act, 2002. Under the Penal laws of
India, certain acts such as killing, poisoning, maiming or torturing an animal
have been declared cognizable offences.4

Transport of Animals Rules, 1978, requires that animals must be healthy

and in good condition while transporting. The animal should not be trans-
ported if it is fatigued, diseased or unfit for transportation. Furthermore, preg-
nant and the young are required to be separately transported. The Drugs and
Cosmetics Rules (Second Amendment) 2014, prohibited testing on animals for
cosmetic products all over India. Any cosmetic which has been tested on ani-
mals cannot be imported to India.5

3
Indian Constitution, Art. 51-A, cl. (g).
4
Ss. 428 and 429 of the Indian Penal Code, 1860.
5
R. 135-B of the Drugs and Cosmetics (Fifth Amendment) Rules, 2014.
 CNLU LAW JOURNAL–2020-21  303

Apart from these, there are various other rules that have been framed under
the POC Act.6 Thus, we can see there is a pre-existing legal framework regard-
ing the protection of animals. However, these provisions merely punish humans
for committing certain crimes with respect to animals. They do not accord
the status of a legal person to animals, nor do they talk about giving them
any separate rights. Furthermore, the penalties imposed under these rules are
insufficient. In some cases, only 10-50 rupees fine is imposed which is wholly
unjustified as the value of the life of the animal. Thus, there is a need to pro-
vide legal rights to animals.

There have also been numerous judicial pronouncements in India whereby

animal cruelty was penalized and certain rights of living creatures were rec-
ognized. The Supreme Court has held7 that “animal welfare laws have to be
interpreted keeping in mind animal’s welfare and their best interests, subject
only to exceptions arising out of human necessity”.

The Bench further held that animals have internationally recognized8

freedoms:
(i) freedom from hunger, thirst and malnutrition;
(ii) freedom from fear and distress;
(iii) freedom from physical and thermal discomfort;
(iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behaviour.

These 5 freedoms are read into Sections 3 and 11 of PCA Act. They are to
be protected by the Central Government, States, Union Territories, MoEF and
AWBI.9

Thus, the pre-existing laws and their creative interpretation on part of the
Indian Judiciary had adequately laid down the groundwork for passing of the
present judgment.

6
Other important rules include: Prevention of Cruelty to Animals (Dog Breeding and
Marketing) Rules, 2017, Prevention of Cruelty to Animals (Regulation of Livestock Markets)
Rules, 2017, Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017
Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules,
2017, Animal Birth Control (Dogs) Rules, 2001, etc.
7
Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547.
8
Ch. 7.1.2 of the Guidelines of OIE, World Organization for Animal Health.
9
Animal Welfare Board of India is a statutory body to advise the Ministry of Environment and
Forests, Government of India.
304  CASE COMMENT: KARNAIL SINGH AND OTHERS V. STATE OF HARYANA

IV. ANALYSIS OF THE JUDGMENT

A few questions come to mind while analysing the judgment:

ƒƒ Is there even a need to extend legal rights to animals?

ƒƒ What is the legal basis for providing these rights?

ƒƒ How closely are animals related to humans?

ƒƒ Whether an animal can be accorded a legal personality?

ƒƒ If these rights are indeed given, what would be their nature of implemen-
tation in the society?

ƒƒ Is the decision appropriate and are there any lacunae in it?

These questions shall be analysed systematically in the following sections.

A. Need for extending rights to animals

ƒƒ Animals cannot speak for themselves - We must show compassion towards

all living creatures. Animals might be mute but it is our responsibility to
speak on their behalf. No pain or torture must be caused to them.

ƒƒ Religious grounds - In Hindu Mythology, every animal is associated with

a God. Every God is believed to have his own vahana, such as Ganesha’s
vahana is a rat. Certain animals are considered to be sacred, and it is
important to protect them and in turn protect the religious sentiments of
the various communities, example – cows are sacred for Hindus.

ƒƒ Maintenance of ecological balance – The extinction of any species can

upset the equilibrium in the ecosystem. According to the United Nations
report of 2019,10 almost one million species are facing extinction in the near
future due to human influence on their natural environment.

ƒƒ Use and abuse of animals – Animals are subjected to various forms of cru-
elty every day. Whether it’s a bullock who is constantly whipped and made
to push overloaded carts all day around, or a farmer selling eggs produced
by ‘battery hens’, or electrocuting fur bearing animals to obtain damage
free fur so that we privileged humans can wear fur coats.

10
Maddie Burakoff, “One Million Species at Risk of Extinction”, The Smithsonian (6-5-2019,
10.04 a.m.), <https://www.smithsonianmag.com/science-nature/one-million-species-risk-extinc-
tion-threatening-human-communities-around-world-un-report-warns-180972114/>.
 CNLU LAW JOURNAL–2020-21  305

ƒƒ Animals are not ‘property’ - Animals breathe like us and have emotions.
They have a right to life and bodily integrity, honour and dignity.

ƒƒ Animals are entitled to justice – There is a need to take the animals’ inter-
ests directly into account, as Parties to the legal action, rather than as the
object of rights. The World Charter for Nature has proclaimed “every form
of life is unique, warranting respect, regardless of its worth to man”.

Thus, there is a pressing need to extend legal rights to animals also.

B. Basis of giving rights

When animals evolved, a kind of entity came into existence which is capa-
ble of experiencing the goodness or badness of its own condition. Thus, we
can say that animals also have certain interests, or conditions for their welfare.
Animal rights advocates have contended that having a welfare or interests is a
sufficient ground for being entitled to rights. In fact, humans too claim rights
on the basis of our interests and welfare. As such, the basis for awarding rights
to animals is justified.

If animals do not have rights, they are not persons, which leaves them to be
things. But animals are not mere things, since they are living beings with lives
and interests of their own. It is thus, essential to provide them with protection
in the form of rights, through the means of human laws.

C. How closely are animals related to humans?

In his book11 “The Rights of Nature” Mr. David R. Boyd has beautifully
dealt with the understanding of animal minds with respect to emotions, intel-
ligence, self-awareness, altruism and many other factors comparative to human
beings.

Emotion: It is well established that elephants mourn their dead. They lin-
ger over a family member’s body with what looks like sorrow and African
elephants even have a burial ritual in which they cover the bodies of dead rela-
tives with leaves and dirt.

Intelligence: Humans were supposed to have the biggest brains, and thus the
gold medal, in animal intelligence. However, studies have revealed that brains
of Homo Sapiens are outweighed by those of dolphins, elephants and whales.
Also, the brains of dolphin’s have more spindle neurons than us. Intelligence
and even maths, is not only limited to humans. Archerfish can instantly
11
David R. Boyd, The Rights of Nature : A Legal Revolution That Could Save the World, 205-
207 (ECW Press 2017).
306  CASE COMMENT: KARNAIL SINGH AND OTHERS V. STATE OF HARYANA

calculate complicated mathematics of distance, speed, and time when blasting

their prey with jets of water.

Self-awareness: Experiments have reflected that dolphins, orcas, Eurasian

magpies, elephants, and some primates recognize themselves in mirrors.

Altruism: Altruism refers to behaviour benefiting someone who is not a

close relative, despite some personal cost or risk. Certain lab tests have shown
that rhesus monkeys will consistently choose to go hungry if their decision to
secure food would result in another unrelated rhesus monkey being subjected
to an electrical shock. Humpbacks are known to respond to the distress calls of
other species like seals that were being attacked by killer whales.

Communication: Chimpanzees greet each other by touching hands, similar

to human handshakes. Whales repeatedly breach (leap out of water) to transfer
messages to other whales. Speaking of native languages, blue whales produce
different patterns of tones and pitches depending on where they’re from! Birds
that live on the border of two territories often become bilingual, meaning they
are able to communicate in the singing parlance favoured by groups of both
territories. And in case some people only consider ‘speaking in human lan-
guages’ as ‘communication’, we also have talking parrots in many States.

These studies have proved to be extremely enlightening and have shown us

that animals can also exhibit emotions, have a good memory, speak in their
native languages and exhibit numerous other characteristics that were earlier
believed to be restricted only to humans. Mankind may be yet to discover
many other characteristics too.

The animals are comparable to the pre-stone age man when only the limbs
were used by Man for his routine works. At that point, both Man and animals
enjoyed the same law – Law of the jungle. While man has evolved exponen-
tially since then by exploiting application of their brains, animals are still
there, but that should not deny animals the rights which would have accrued to
man during the pre-stone age era.

D. Whether an animal can be accorded a legal personality

Salmond stated12 “A legal person means any subject-matter other than a

human to which the law attributes personality. This expansion, done for suf-
ficient and good reasons, of the concept of personality beyond the category of
human beings is one of the most noteworthy feats of legal imagination...”

12
Fitzgerald P.J., Salmond on Jurisprudence, 304 (12th edn., 2016).
 CNLU LAW JOURNAL–2020-21  307

The SC has held13 “the concept of ‘Juristic Person’ arose out of necessities
due to human development. The very words ‘Juristic Person’ connote the rec-
ognition of an entity to be a person in law, which it would otherwise not be.
In other words, it is not an individual natural person but an artificially created
person which is recognised in law to be such.”

The law can “choose which persons to create or recognise” just as it can
choose “which rights or other relations to create or at least recognise”. Thus,
Nekam asserts14 that anything “can become a subject of rights, whether a plant
or an animal, a human being or an imagined spirit”.

The question of whether or not new legal persons can be created thus
appears to be a moot point. It seems, as Lawson argues, that there is no “limit
in logic ... to the number of legal persons that may be interpolated at any point
in human relations”.15 Thus, we can conclude there is nothing inherent in the
concept of legal personality which prevents its extension to animals.

E. Nature of implementation of rights

As legal persons, animals would be recognised as Parties to legal actions.

Hon’ble Justice Sharma has clarified “There is no conceptual problem with
the fact that animals’ inability to speak means that they would require human
legal persons to act as their representatives and to interact with the courts and
the legal system on their behalf. As I noted above, it is quite acceptable for
a legal person’s rights and interests to be exercised and protected by another
legal person acting as the “administrator” of those rights.”

Thus, animals’ rights would be enforced in the same manner as the rights
of an infant, minor, or person of unsound mind are dealt with, i.e. through a
parent or appointed guardian. Appropriate guardians may include animal wel-
fare bodies or individuals with a particular interest, or familiarity with the
concerned animal. The guardian can represent the interests of an individual or
a group of animals. Hence, there is no difficulty regarding implementation of
these rights.

13
Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass, (2000) 4 SCC 146 : AIR
2000 SC 1421.
14
Alexander Nekam, “The Personality Conception of the legal entity”, 3 Harvard UP 25, 29
(1938).
15
Tony Lawson, “Theory of the Corporation: Towards a Social Ontology of Law”, 41 Cambridge
JE 1505 (2017).
308  CASE COMMENT: KARNAIL SINGH AND OTHERS V. STATE OF HARYANA

F. Is the decision of the bench appropriate?

On a complete analysis of all the aforementioned factors, I believe the judg-

ment to be appropriate, backed by legal reasoning, in conformity with existing
law and overall, a very progressive step taken by the Indian Judiciary.

The intent behind the decision is not to say that animal’s interests must pre-
vail over those of other legal persons. Rather, it requires the Court to explic-
itly acknowledge the animal’s interests, the way it acknowledges those of other
legal persons party to the proceedings, and weigh their interests against those
of the other Parties. It must be noted that the order does not demand that ani-
mals should possess every conceivable legal right. Neither are animals to have
the same rights as humans, nor is it necessary that all animals possess identical
rights.

G. Are there any lacunae in the judgment?

While it is indeed a commendable idea, the lines are still blurry in terms of
its enforcement.

On an in depth analysis, certain lacunae have been observed in the court’s

decision. The order states that catching fish through harmful methods like
bottom trawling and cyanide blasting would be disallowed. However, there
is no explicit mention in the 104-page ruling against the slaughter of animals
other than cows. In fact, the Prevention of Cruelty to Animals Act, 1960,
says that animals can be killed for food if they aren’t subjected to unneces-
sary suffering. The Food Safety and Standards (Food Products Standards and
Food Additives) Regulations, 2011, also specifies the species which can be
slaughtered.

Further, there is a self-contradiction in the judgment. While laying down,

“No one shall use animals for drawing any vehicle,” the judgment says, “carts
pulled by animals must be given the ‘right of way’”. These self-contradictions
have affected the merit of the order to some extent, however the general idea is
still praiseworthy.

V. CONCLUSION

The judgment puts an end to speciesism, which is the belief that some ani-
mals’ lives and experiences are inferior to those of humans or other animals
simply because they are members of a different species. The bench’s decision
acknowledges that all living beings have the capacity to suffer in the same way
and to the same degree as the ‘human animals’ we share our lives and homes
with.
 CNLU LAW JOURNAL–2020-21  309

The progressive interpretation adopted by Justice Rajiv Sharma is also wor-

thy of admiration. He had earlier given a similar right to river Ganga16 stating
that it is a living entity and will thus, enjoy all corresponding rights. Such pro-
gressive judges and decisions are what lead to social reforms, and are a fine
example of judicial activism in our country.

Orwell’s statement17 that “all animals are equal, but some animals are more
equal than others” is more or less apt to describe the differential treatment of
human and non-human animals that was prevailing in our legal system. While
all human animals are legal persons, non-human animals were put in the cate-
gory of ‘property’.

Conferring of legal personality on animals must be done after a careful con-

sideration of which rights and/or obligations would be appropriate to extend to
particular animals. A more careful analysis of the judgment must be conducted
in order to prevent any grey areas in compliance with it. The apparent contra-
dictions and lacunae must be addressed. The judgment has been a wonderful
stepping stone and I hope that this would lead to better treatment of animals
and the enactment of more thorough and elaborate animal protection laws.

There is a growing global movement to recognize non-human animals as

legal persons. It is an ardent hope that with this judgment, the plight of ani-
mals would improve significantly and Orwell’s popular saying shall lose its
meaning. The animal beings with whom we share our world deserve to be
treated not as means to human ends, but as ends in themselves. Their libera-
tion is in our hands… “Live and Let Live”

16
Mohd. Salim v. State of Uttarakhand, 2017 SCC OnLine Utt 367.
17
George Orwell, Animal Farm, 313-314 (1st edn., 1945).
 CASE COMMENTARY
TITLE: HAS THE BOMBAY HIGH COURT
GONE TOO FAR IN VALIDATING
EXCESSIVE RESERVATION?
—Parth Soni & Patel Aniket

Abstract — The preamble of India mentions India being a

democratic and socialist country. However there are challenges
attached to it such as upliftment of socially and educationally backward
classes. To phase these kind of issues, the constitutional assembly
inserted article 15 and article 16. Under article 15(4) the state is given
power to make separate provisions for socially and educationally
backward classes. Reservation has been a bone of contention since
independence because of its misuse as well as conflict of interest. There
exists conflict of interests between various classes when reservation
is provided to some of them. Appropriate examples being the Gujjar
community issue in Rajasthan, Jat reservation issue in Haryana, Patel
Andolan in Gujarat, etc. Similar situation arose in state of Maharashtra
whereby the Maratha community started agitations to get them included
in socially and educationally backward classes. For the purpose of
same, Maharashtra government appointed Gaikwad commission to
inquire into backwardness of Maratha community. Later, on basis of
the commission report government provided 16% separate reservation
to Maratha community. When it was challenged in the High Court of
Bombay on various grounds, it put stay on the move initially. However
later in present case, two judges bench lifted the stay. Present case study
attempts to analyze the judgment on basis of various issues such as the
breach of ceiling of 50% in reservations previously set up by Mandal
Commission case, Reliability of quantifiable data obtained by Gaikwad

*
3rd year, Gujarat National Law University
**
3rd year, Gujarat National Law University
 CNLU LAW JOURNAL–2020-21  311

commission and other commission reports, the legislative competence,

colorable exercise of power etc. Now the reservation has reached to
68% total in state of Maharashtra. It is concluded that the enactment of
the Act is subverting the very object of article 15(4). It is analyzed how
far the court has gone in validating excessive reservation.

Dr. Jishri Laxmnarao Patil.... Petitioner

Versus

The Chief Minister and ors... Respondent

(Maratha Reservation Case)

Delivered on: June 27, 2019 (High Court of Bombay)

I. JUDICIAL REVIEW

It was opined by the High Court that the First Amendment to the
Constitution which inserted Article 15(4) gives power to state to make any
special provision for the purpose of advancement of the weaker classes. It was
contended in present case that the motive of legislature cannot be questioned.
However, In M.R. Balaji case1 Supreme Court held that the state is sup-
posed to proceed objectively. The classification made by state of a class being
‘Backward Class’ is subjected to judicial review.2 In Triloki Nath Tiku v. State
of J&K3 Supreme Court held that court can always interfere if there is no valid
ground to classify a class as ‘socially and educationally backward classes’.

II. RULE OF 50% CEILING

The government of Maharashtra seems to have gone too far in providing

reservation to Maratha community. The ceiling was set up by Mandal commis-
sion case4 in 1993 whereby state cannot exceed the reservation limit of 50%.
However in present case the state exceeded the limit drastically by providing
16% separate reservation to Maratha community. It was surprisingly defended
by the high court of Bombay while validating the move taken by state. While
validating the reservation, High court lifted the stay previously put up by
Sanjeet Shukla case.5

1
M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
2
7 D.D. Basu, Commentary on Constitution of India 2825, (9th edn. 2016).
3
Triloki Nath Tiku v. State of J&K, AIR 1969 SC 1 : (1969) 1 SCWR 489.
4
Indra Sawhney v. Union of India, 1993 Supp (3) SCC 217 : AIR 1993 SC 477.
5
Sanjeet Shukla v. State of Maharashtra, 2015 SCC OnLine Bom 501.
312  HAS THE BOMBAY HIGH COURT GONE TOO FAR IN VALIDATING EXCESSIVE

In Mandal Commission case6 honourable Supreme Court held that the cap
of 50% should be exceeded only in exceptional circumstances. Whether excep-
tional circumstances existed or not depends upon the socio-economic condi-
tions of community.

It is argued before the court that constitution nowhere prescribes any res-
ervation limit and the 50% ceiling is misconception. However, in M.R. Balaji
case7 the Supreme Court stated with no uncertainty that,

“A special provision contemplated by article 15(4) reservation

of posts and appointments contemplated by article 16(4) must
be within reasonable limits. The interests of weaker sections
of the society that are at a first charge on the states and the
centre have to adjust with the interests of the community as a
whole. The adjustment of these competing claims is obviously
a difficult matter, but if under the guise of making a special
provision, state reserves practically all the seats available in
all the colleges, that clearly would be subverting the object of
Article 15(4).”

In present case also, the Maratha community is given 16% separate res-
ervation which clearly subverts the object of article 15(4)8. There were other
instances when the reservation exceeded beyond reasonable limit such as res-
ervation of 68% of seats in the technical institutes and medical institutes in
Mysore which was struck down by Supreme Court.9 The same rule was reit-
erated in Rajendran case10 . It was held in plethora of cases that reservation
less than 50% would be upheld but the reservation beyond 50% would be
invalidated.11

Further, the High Court considered judgment of Supreme Court in S.V.

Joshi v. State of Karnataka12 in which it was held that if quantifiable and reli-
able data is available, the state can breach 50% ceiling. However, Gaikwad
commission appointed by Maharashtra government had take only sample
data for the purpose of drawing conclusions with regard to backwardness of
Maratha community. Even Dr. B.R. Ambedkar was also of the opinion that
reservation should be confined to minority seats.13

6
Supra note 4.
7
Supra note 1.
8
Indian Constitution, Art. 15, Cl. 4 inserted by The Constitution (First Amendment) Act, 1951.
9
State of A.P. v. U.S.V. Balram, (1972) 1 SCC 660 : AIR 1972 SC 1375.
10
C.A. Rajendran v. Union of India, AIR 1968 SC 507.
11
A. Peeriakaruppan v. State of T.N., (1971) 1 SCC38 : AIR 1971 SC 2303.
12
S.V. Joshi v. State of Karnataka, (2012) 7 SCC 41.
13
Supra note 4.
 CNLU LAW JOURNAL–2020-21  313

Following these rules, even the carry forward rule was also struck down in
Devadasan case.14 In State of Kerala v. N.M. Thomas, the court held that,

“Not more than 50 per cent should be reserved for backward

classes. This ensures equality. Reservation is not a constitu-
tional15 compulsion but is discretionary according to the rul-
ing of this Court in Rajendran’s case.”

Hence, in author’s opinion the excessive reservation of 68% would subvert

the object of article 15(4).

III. DRAWING INFERENCE WITH REGARD

TO BACKWARDNESS OF COMMUNITY
FROM COMMISSION REPORTS

For the purpose of analyzing the current socio-political status, the

Maharashtra government appointed Gaikwad commission. Quantifiable data
has become a necessity for the purpose of reservation. Recently, in the case of
Gurvinder Singh v. State of Rajasthan16 the court looked into validity of 5%
reservation provided to five castes. The court looked into report made by state
backward class commission whereby the data was inadequate to classify the 5
castes as backward class. The move of 5% reservation was struck down on the
ground that the data was not quantifiable.

Further there is no data to support inadequate representation in various sec-

tors. The Maratha community has given twelve chief ministers to state. The
commission didn’t consider their adequate representation in all the sectors.

Previous committee reports such as Khatri Committee as well as Bapat

Committee didn’t favor the argument of Maratha being a backward class.
They were also shown as a forward Hindu class by the 2nd report of back-
ward class commission. Backward communities become forward ones with
time passes but how a community which was forward 60 years ago suddenly
became backward?

Further, the Gaikwad commission report was more based upon the eco-
nomic backwardness of the community. It was stated in the report that more
than 85% of the people from Maratha community were having income of less
than 25 thousand rupees. Further the judgment also considered the data pro-
vided by report that Maratha community is the leading one of those engaged

14
T. Devadasan v. Union of India, AIR 1964 SC 179.
15
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : AIR 1976 SC 490.
16
Gurvinder Singh v. State of Rajasthan, 2016 SCC OnLine Raj 8306.
314  HAS THE BOMBAY HIGH COURT GONE TOO FAR IN VALIDATING EXCESSIVE

with the life of Dabbewala (tiffin service providers) in Mumbai. The commis-
sion found that out of 4800 total families, 4600 belong to Maratha community.
In the opinion of Author, it would be misconception to consider the business
of Dabbewala as of lower category. Further, there is no relevance of economic
condition with social conditions. If someone is earning lesser, it doesn’t mean
they are socially and educationally backward. The words used in constitution
are ‘socially and educationally backward class’ and not ‘socially and eco-
nomically backward class’.

It is also stated in the report that more than 98% families of the community
don’t prefer to enter into inter religion marriages. However it is social condi-
tion of not only Maratha community but of whole India.

Further the High Court considered that almost 77% of Maratha commu-
nity is engaged with agriculture. However, severe social and educational
backwardness cannot be determined on basis of that data since there is no rel-
evance between agriculture and backwardness. In India, most of the families
are dependent on agriculture but no inference can be made that they all are
socially and educationally backward people.

IV. LEGISLATIVE COMPETENCE AND

COLOURABLE PIECE OF LEGISLATION

The impugned Act17 does not have the legislative competence and it was a
colourable exercise of legislation.

Firstly, the Legislatures of the States do not have the power to determine
the ‘Socially and Educationally Backward Class’ after coming into force of
the Constitution (One Hundred and Second Amendment) Act, 2018. Article
338-B18 and Article 342-A19 have been inserted vide the Amendment Act
which provides for the establishment of National Commission for Socially
and Educationally Backward Classes (SEBC). It is only through this proce-
dure, a citizen can be said to be belonging to SEBC in relation to that State.
Hence, the power is now vested with the President to notify the socially and
educationally backward classes. The declaration of backward class by State
Legislature is, thus, unconstitutional.

17
Maharashtra State Reservation (of seats for admission in educational institutions in the
State and for appointments in the public services and posts under the State) for Socially
and Educationally Backward Classes (SEBC) Act, 2018, No. 62, Acts of Maharashtra State
Legislature.
18
Indian Constitution, Art. 338-B, inserted by The Constitution (One Hundred and Second
Amendment) Act, 2018.
19
Indian Constitution, Art. 342-A, inserted by The Constitution (One Hundred and Second
Amendment) Act, 2018.
 CNLU LAW JOURNAL–2020-21  315

The newly inserted sub-clause (7) to Article 338-B provides that where the
National Commission has made a report with regard to a particular State then
a copy of that is to be submitted to the State which will then place it in the
legislature of the State with a Memorandum to explain what action the State
is proposed to take with the reasons. Therefore, it is not permissible for the
State Legislature to provide a status of socially and educationally backward
class to the Maratha community without consulting the National Commission
of Backward Classes. Sub-clause (9) of Article 338-B makes it mandatory for
both the Union and the State Governments to consult the National Commission
for Backward Classes on all major policy matters affecting the socially and
educationally backward classes. This has to be done along with following the
procedure of another newly inserted Article 342-A.

Article 366 (26-C) as inserted by the same Amendment provides for the
definition of Socially and Educationally Backward Classes as “...such back-
ward classes as are so deemed under article 342-A for the purposes of
this Constitution.” Hence, without following the procedure of Article 342-
A, the State cannot define what SEBC is. The Act, therefore, becomes
unconstitutional.

In M. Nagaraj v. Union of India20, the Supreme Court, in unequivocal

terms, held that the State cannot breach the ceiling limit of 50% established
in Indra Sawhney21 case. If it is done, it would violate Article 16. Nagraj case
was later affirmed by the Supreme Court recently in Jarnail Singh v. Lachhmi
Narain Gupta22.

Secondly, the interim order23 was passed by the High Court of Bombay in
2014 to stay the implementation of the ordinance which provided 16% reser-
vation in favour of Maratha community. Thereafter, the legislature passed
the SEBC Act, 2018 in pursuance of the recommendation given by Justice
Gaikwad Commission. The High Court, here, ignored the very settled posi-
tion of law that the Legislature cannot overrule or reverse the judgment of the
Court without resolving the very basis of the judgment.24 It is no more res inte-
gra to annul the decision of the Court, the legislature can come up with a leg-
islation. It is constitutionally impressible and goes against the spirit of Article
5025.

20
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
21
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : AIR 1993 SC 477.
22
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.
23
Sanjeet Shukla v. State of Maharashtra, 2015 SCC OnLine Bom 501.
24
Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2).
25
Indian Constitution, Art. 50.
316  HAS THE BOMBAY HIGH COURT GONE TOO FAR IN VALIDATING EXCESSIVE

In Goa Foundation v. State of Goa26 , the Court held that “A judicial pro-
nouncement, either declaratory or conferring rights on the citizens cannot
be set at naught by a subsequent legislative act for that would amount to an
encroachment on the judicial powers.” That restriction, as per Cauvery Water
Disputes case, also applies to an interim order passed by the Court. What the
legislature did was indeed a colourable exercise of legislation. It is very well
established that what cannot be done directly, cannot be done indirectly.

Therefore, Section 2, 3 and 5 of the Act can be said to be a colourable exer-

cise done by the Legislature and hence, violates the Constitution.

The High Court held that the provision of Article 15 and 16 are enabling
power as per Indra Sawhney27 judgment and therefore, the State Legislature
can provide for the reservation to SEBC. But the State has to recognize the
compelling interest and then exercise a great caution to implement it. But here,
in this case, the Court did not find any illegality to interfere with the findings
of the Gaikwad Commission. Judicial review may not extend to the policy
decision but the Court in Bir Singh v. Delhi Jal Board28 , held that, “The data
which is the basis of the satisfaction of the State being verifiable, is open to
judicial scrutiny on the limited ground of relevance of the circumstances on
which the satisfaction is moulded.”

The legislature has to show that there was an “extraordinary situation” pre-
vailing which prompted it to come up with the reservation for Maratha com-
munity. Unless the report of Gaikwad Commission or the Legislature provide
enough reasons of prevalent “extraordinary situation”, then the ceiling of 50%
cannot be breached by the Legislature. Therefore, the judgment of Bombay
High Court is against the precedent set up by the Supreme Court in Indra
Sawhney29 case in which the Court made following observation:

“We hold and declare that the limit of reservation should

not exceed 50%. However, in exceptional circumst`ances and
extraordinary situations, this limit can be crossed subject to
availability of quantifiable and contemporaneous data reflect-
ing backwardness, inadequacy of representation and without
affecting the efficiency in representation.”

In this case, the Bombay High Court cited several authorities to determine
the scope of judicial review but it did not give any reason whatsoever as to
how it found that the Gaikwad Commission was correct with its methodology

26
Goa Foundation v. State of Goa, (2016) 6 SCC 602.
27
Supra note 20.
28
Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312.
29
Supra note 20.
 CNLU LAW JOURNAL–2020-21  317

with regard to ‘adequacy of representation’ and ‘impact on efficiency in admin-

istration” (grounds which were later affirmed in Nagraj case).

The above mentioned grounds clearly establish that the legislature was
incompetent, that there was colourable exercise of legislation and that the
Bombay High Court erred in its judgment while upholding the reservation to
Maratha community
 WHERE WILL THE JURISDICTION LIE? AN
ANALYSIS OF “EXECUTIVE ENGINEER,
ROAD DEVELOPMENT DIVISIO NO.III,
PANVEL & ANR. V ATLANTA LIMITED1
—Sumit Kumar Gupta

Abstract — Often Courts have been posed with an issue to

determine the jurisdiction where parties file simultaneous cases
according to their convenience in more than one court. In this judgment,
the SC was posed with a similar conundrum of deciding the jurisdiction
wherein both the District Court and the High Court enjoyed jurisdiction
to hear the matter. This case commentary contains the background of
the case and circumstances which led to the final interpretation made
by the Supreme Court. In this case commentary, the author has tried
to blend the harmonious construction between section 15 of the CPC
and section 2 (1) (e) of the Arbitration and Conciliation Act, 1996
to decide the jurisdiction of the Court. The author has explored the
intention of legislators while drafting respective provisions to decide
jurisdiction in the light of this judgment by the Supreme Court. The
interpretation of the word “courts” in Arbitration act played a crucial
role in determining jurisdiction. Albeit the preliminary issue of the
case is well established in the court of law, the core issue of the case
involved a dispute wherein section 2(1) (e) of the Arbitration Act was
given precedence over the section 15 of the CPC. Ultimately, the author
agreed with the verdict given by the Supreme Court stating that if there
will be an option given to choose the jurisdiction between a High Court
under ordinary original civil jurisdiction and a District Court having
the principal civil court of original jurisdiction then the preference
should be given to the High Court.

1
State of Maharashtra v. Atlanta Ltd., (2014) 11 SCC 619.
 CNLU LAW JOURNAL–2020-21  319

I. INTRODUCTION

A contract came into existence between Public Works Department,

Maharashtra (“Appellant”) and Atlanta Limited (“Respondent”) wherein the
respondent was awarded a contract for the construction of Mumbra bypass
which came in the jurisdiction of District Court, Thane. In the event of dis-
pute, an arbitration seat was fixed at Mumbai. Dispute arose between the par-
ties and both challenged through arbitration. Having not satisfied with the
arbitral award, the appellant and the respondent filed a suit simultaneously (on
the same date) before District Judge, Thane and before the Bombay High Court
respectively. The Supreme Court while analyzing the definition of “Court” con-
tained in section 2(1) (e) of the Arbitration and Conciliation Act, 19962 found
that Bombay High Court would have jurisdiction to entertain this suit.

The Supreme Court dealt with two underlying principle of law. The pre-
liminary issue was whether two suits about the same arbitral award can pro-
ceed simultaneously in two different Courts (where jurisdiction lies with
both the Courts). The issue of central importance in this case was which two
Courts (i.e. District Court, Thane and the Bombay High Court) would have
jurisdiction to try this challenge of an arbitral award. Section 2(1) (e) of the
Arbitration Act gave jurisdiction to two courts to determine the jurisdiction. It
defined the Court to signify the Principal Civil Court of original jurisdiction in
a district and the High Court in exercise of its ordinary original civil jurisdic-
tion. This case raised very important issue about the jurisdiction of the Courts.3

The author in this case comment analyzed the judgment made by the
Supreme Court. This comment will start with the background and the intention
of the legislators while drafting a section of the Act. The author will endeavor
to enlist the reasoning given by the Court to reach the conclusion. The next
part will deal with pointed arguments on how two interpretations can be drawn
from the given provision of the respective Acts. At the end, the author will
try to blend a harmonious construction between section 15 of CPC4 and sec-
tion 2(1) (e) of the Arbitration and Conciliation Act, 1996. In the end, this case
comment will talk about the impact by the interpretation given by the Court
and which the author thinks should be a correct position of law by analyzing
precedents and statutes.

2
Hereinafter “Arbitration Act”.
3
Commentary on the Arbitration and Conciliation Act, Justice S.B. Malik, (7th edn., 2015)
4
S. 15 of the Civil Procedure Code states that - The Court in which suits to be instituted:
Every suit shall be instituted in the Court of the lowest grade competent to try it.
320  WHERE WILL THE JURISDICTION LIE?

II. LAW PERTAINING TO JURISDICTION

Dealing with the preliminary issue, the law is amply clear that when the suit
is filed in two Courts by both parties and where both the Courts have jurisdic-
tion then the remedy can be found in Section 42 of the Arbitration Act.5 This
section mandates that the court wherein the first application was filed shall
alone have the jurisdiction arising out of such challenge.6 It became evident
that a suit arising out of the same matter and dealing with the same question
of law cannot proceed simultaneously in two courts. Further, section 2(1) (e)
of the Arbitration Act gives jurisdiction to both the principal Civil Court of
original jurisdiction in a district and the High Court in exercise of its original
civil jurisdiction. The only condition stipulated by this section pertains to the
subject matter of the arbitration which forms pivotal part while reaching the
conclusion with regard to jurisdiction.7

The court, while interpreting these sections of the Arbitration act, has given
exclusive jurisdiction to the principal courts and the High Court exercising its
original civil jurisdiction. The court has further said that the jurisdiction to
set aside the award given in the arbitration is vested in the superior-most civil
court of original jurisdiction available in the district.8 In the event where there
is only City Civil Court in the Greater Bombay then the Principal Civil Court
of original jurisdiction will be the High Court of Bombay.9

III. THE DECISION IN ATLANTA LIMITED

The High Court of Bombay, in this case, relied on section 2410 and trans-
ferred proceedings from the Court of District Judge, Thane. The High Court
held that the parties were common to both matters and the same award by the
arbitration proceedings is under scrutiny in the given case. The High Court
consolidated both petitions (i.e. one at the District Court Thane and one at the
High Court, Bombay). The HC said that if both proceedings will run simulta-
neously then two Courts will render decisions on the same matter which may
be conflicting. Ergo, the HC heard the matter.11

5
S. 42 of the Arbitration and Conciliation Act, 1996.
6
ITI Ltd. v. District Judge, 1998 SCC OnLine All 359 : (1998) 3 AWC 2244.
7
Jindal Vijayanagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Co. Ltd, (2006) 11 SCC
521.
8
Shivam Housing (P) Ltd. v. Thakur Mithilesh Kumar Singh, 2015 SCC OnLine Pat 6005.
9
Khetan Industries (P) Ltd. v. Manju Ravindrapasad Khetan, 1994 SCC OnLine Bom 163 :
AIR 1995 Bom 43.
10
S. 24 of the Code of Civil Procedure Code, 1908.
11
Ibid.
 CNLU LAW JOURNAL–2020-21  321

The above determination of the High Court was challenged through Special
Leave Petition.12 While, disposing the preliminary issue, the Court held sec-
tion 42 cannot be invoked in the present petition as both the challenges were
filed on the same day in respective Courts. The SC, in view of the conclusions
drawn by the respondent, upheld the judgment given by the High Court and
laid down that section 2(1) (e) confers the power to adjudicate and dispose of
the issues arising out of an arbitral award to the High Court in exercise of its
ordinary original civil jurisdiction. The Supreme Court relied on the legislative
intent arising out of the given statue.

IV. SHOULD SECTION 2(1) (E) OF THE

ARBITRATION ACT BE GIVEN PRECEDENCE
OVER SECTION 15 OF THE CPC?

The core of the case involves a dispute wherein section 2(1) (e) of the
Arbitration Act was given precedence over the section 15 of the CPC. It is
appearing that court was correct in reaching its conclusion but it is important
to analyze on different streams of reasoning associated with it for reaching the
conclusion. The author delves into different approaches of reasoning which
should have been taken by the court to arrive the said conclusion.

A. Should we confer Jurisdiction to Principal Civil Court of

original jurisdiction when compared to High Court of having
ordinary original civil jurisdiction?

First of all, we need to analyze the section 2(1) (e) of the Arbitration Act.
The legislators have used the word “means” which connotes that the provision
is direct and should be interpreted with restriction. This section also contains
“include” which makes the act inclusive of only two courts. The legislators
have exhaustively explained the term to corroborate that only restricted mean-
ings can be applied to find out the jurisdiction of courts.13 This definition pro-
vides restrictive interpretation of the “courts” and is narrower as compared
with the section 2(c) of the Arbitration Act, 1940. The earlier act included
civil court but the 1996 act changed it to only principal civil court of original
jurisdiction.

Further, the legislators have used the word “principal”. The bare perusal of
this word connotes about the court of first instance, first in importance or main
or chief. It is suggestive of status and importance related with the jurisdiction.14
12
State of Maharashtra v. Atlanta Ltd., (2014) 11 SCC 619.
13
Globe Congeneration Power Ltd. v. Hiranyakeshi Sahakari Sakkere Karkhane Niyamit, 2004
SCC OnLine Kar 155 : AIR 2005 Kar 94.
14
Sundaram Finance Ltd. v. M.K. Kurian, 2006 SCC OnLine Mad 56 : AIR 2006 Mad 218.
322  WHERE WILL THE JURISDICTION LIE?

The language of this section nowhere suggested that a hierarchically superior

court should be given jurisdiction as compared to the inferior courts. It only
talked about giving jurisdiction to Principal Civil Court of original jurisdic-
tion in a district and endeavored to include the High Court in exercise of its
ordinary original civil jurisdiction. Further, the CPC in its entirety applies to
the proceedings enumerated under the Arbitration Act.15 The jurisdiction of
the courts should be entirely governed by the provisions given in the CPC.
Section 15 of the CPC overlooks the procedure in which a suit can be filed in
the Court of the lowest grade competent to try it. Therefore, the question of
conferring jurisdiction to the High Court should not arise as long as Principal
Civil Court of Original Jurisdiction is governing over the area of where dispute
arose.16

In the present case, the construction of Mumbra Byepass falls well within
the territorial jurisdiction17 of District Court. Further, the subject matter of
arbitration relates to the construction of Mubra Byepass. There is no other
court in the vicinity of Thane where Principal Civil Court of original jurisdic-
tion was exercised. Ergo, harmonious construction between section 15 of CPC
and section 2(1) (e) of the Arbitration Act consolidates the law that District
Court of Thane should have jurisdiction to try this suit as it is the Principal
Civil Court of original jurisdiction.

B. Can the jurisdiction be given to the High Court having ordinary

original civil jurisdiction over the Principal Civil Court of
original jurisdiction?

The Supreme Court in this case laid down that High Court having ordinary
original civil jurisdiction shall have precedence over the Principal Civil Court
of original jurisdiction.18 The Supreme Court took the different approach in
determining this conclusion. In this section, the author shall endeavor to take
different reasoning which should have been taken by the Supreme Court.

The appellant, in this case, vehemently contended that section 15 of the

CPC should be taken into consideration before determining the jurisdiction.
But, it has been well established that section 15 did not confer the jurisdiction
directly to Courts.19 It acts as a guidance to decide jurisdiction.20 This section
15
Nila Construction Co. v. Sanghi Industries Ltd., 2005 SCC OnLine AP 846 : (2006) 1 ALD
486.
16
Ibid.
17
Rattan Singh Associates (P) Ltd. v. Gill Power Generation Co., 2007 SCC OnLine Del 19 :
(2007) 146 PLR 2.
18
Commentary on the Code of Civil Procedure, Mulla, 16th edn.
19
Konthan Kesavan v. Varkey Thomman, 1963 SCC OnLine ker 270 : AIR 1964 Ker 206.
20
Madipalli Venkatachellam v. Madipalli Suryanarayanamurty, 1939 SCC OnLine Mad 456 :
AIR 1941 Mad 129.
 CNLU LAW JOURNAL–2020-21  323

has laid down the rule of procedure which has to be followed for jurisdictional
matters.21 In addition to this, let us investigate the intention behind the legisla-
tion of the Arbitration Act, 1996. Section 2(1) (e) of this act is in pari materia
with the section 2(c) of the Arbitration Act of 1940. The only difference is that
this act of 1996 restricts subordinate courts from hearing arbitral matter and
it expressly included High Court in exercise of its original civil jurisdiction.22
If the High Court will be abstained from having jurisdiction then the District
Court would always have the jurisdiction thus excluding the High Court from
exercising its original civil jurisdiction. This would make the inclusion of
“High Court” nugatory and redundant. The objective of the Parliament must be
achieved while interpreting the term “Court” under section 2(1) (e) of the said
act.23

In addition to this, use of the word “subject matter” must be interpreted so

as to reveal the intention of the Parliament. This term would include the mat-
ter such as contracts. It should be construed to mean the relief awarded by the
arbitral award.24 The award can be in terms of specific performance, money
etc.25 Further, “subject matter” is confined to Part I of the Arbitration Act. It
has a direct connection with the process of dispute resolution. The purpose of
this act is to identify the court which will have supervisory control over the
proceedings of the arbitration. “Hence, this section refers to a court which
would essentially be a court of the seat of the arbitration process.”26 This was
also enunciated in Balco case.27 Besides, section 2(1) (e) of the Arbitration Act
has not made any reference of place of business, where parties reside, dwell
etc. It is solely based on the subject matter of the arbitration aligned with the
subject matter of the suit. The emphasis is made on the subject matter.28

Ergo, the harmonious construction of section 15 of the CPC and section

2(1) (e) blended with the intention behind the inclusion of “High Court” and
interpretation of “subject matter” used in the Arbitration Act yielded the result
that High Court in exercise of its ordinary original civil jurisdiction should be
given precedence.29

21
Mohini Mohan Das v. Kunja Behari Das, 1943 SCC OnLine Cal 90 : AIR 1943 Cal 450.
22
Ibid.
23
Ibid.
24
Tata International Ltd. v. Trisuns Chemical Industry Ltd., 2001 SCC OnLine Bom 905 :
(2002) 2 Bom CR 88.
25
Trammo DMCC v. Nagarjuna Fertilizers and Chemicals Ltd., 2017 SCC OnLine Bom 8676.
26
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 659.
27
Ibid.
28
Id., || 13.
29
Supra note 3.
324  WHERE WILL THE JURISDICTION LIE?

V. CONCLUSION

Atlanta Limited clearly demonstrated an important aspect of how Courts are

going to approach when confronted with the jurisdictional issues. The Supreme
Court was posed with a very crucial issue of determining jurisdiction where
both parties filed their suit simultaneously under the above mentioned acts in
two courts, in which both Courts enjoyed jurisdiction to hear the matter pre-
sented. 30 The Supreme Court, in its verdict, analyzed the definition of “Court”
contained in the arbitration act.

The harmonious construction of section 15 of the CPC and section 2(1) (e)
of the Arbitration Act31 in this case needed a different approach to reach the
conclusion drawn by the Court. The author delved into the procedural guide-
lines given by section 15 along with interpreting intention behind the legisla-
tion of the Arbitration Act. It can be safely concluded that if there will be an
option given to choose the jurisdiction between a High Court under ordinary
original civil jurisdiction and a District Court having principal civil court of
original jurisdiction then the preference should be given to the High Court.

30
Nitin Desai, “High Court v. District Court, Where will your Section 34 Arbitration Petition
Lie?”, July 5, 2019, <http://www.nishithdesai.com/information/research-and-articles/nda-hot-
line/nda-hotline-single-view/newsid/2224/html/1.html?no_cache=1>.
31
Commentary on Law of Abitration and Conciliation, Justice R.S. Bachawat, (5th edn., 2010)
 THE TRANSFORMATIVE CONSTITUTION-
A RADICAL BIOGRAPHY IN NINE ACTS
—Gautam Bhatia

— Gursimran Singh*

“We have it in our power to begin the world over again”, “On 26th January
1950 India will be an Independent country”. These are the words of Thomas
Paine and Dr. B.R. Ambedkar which Gautam Bhatia has used in the very
beginning of his book “The Transformative Constitution”. The title of the book
and the quotes connote similarity as both talk about bringing a change. But
why would Ambedkar state that the Indian Independence would be achieved on
the date when the Constitution will come into effect i.e. on 26th January 1950?

I. NATURE OF THE CONSTITUTION

While the Britishers had already left India in 1947, what did Ambedkar
meant by the independence which the Constitution aimed to achieve? The
answer is that he recognized the potential of the Constitution to begin the
functioning of India all over again. These two quotes by Thomas Paine and
Dr. Ambedkar are like thread which sews all the words, reasoning and logic
encompassed on the pages of Bhatia’s book together and lay down in simple
terms what the author uses 9 chapters and 9 judgments along with a prologue
and an epilogue to explain.

The author in the prologue firstly tries to cull out the objective of the
Constitution as to whether it is a conservative document or a transformative
one. Interpreting Constitution as a conservative document would limit the
understanding of the Constitution as merely a culmination point of the National
movement resulting in self-government or transfer of power.1

1
B.N. Rao, India’s Constitution in the Making 1 (Calcutta: Orient Longman 1960).

*
(3rd year- BA LLB)-School of Law, Lovely Professional University Phagwara.
326  THE TRANSFORMATIVE CONSTITUTIO

But if exalted as transformative one, Constitution could be understood as

a document which resulted in the formation of a new order that ‘blotted out’,
‘abandoned’, ‘obliterated’ the past.2

While rescuing the second interpretation from being called a mere assump-
tion, author lists and then counters the arguments supporting the conservative
nature of the Constitution. Firstly the Constituent assembly was no revolu-
tionary body as it was not democratic; secondly, the government framework
was heavily borrowed from the Government of India Act, 1935 including
various arbitrary provisions of preventive detention; thirdly the form of gov-
ernment chosen (Westminster) can at best be called evolution from rather
than a destruction of the old system. The last broader argument which gives
Constitution the shade of conservatism is the nature of the national movement
led by the Indian National Congress which had ignored and sidelined labour,
agrarian and various subaltern and marginalized struggles. These arguments
collectively put bloat on the Constitution-making process on the basis of which
the final document itself can only be called a conservative document.

To support a transformative vision of the Constitution and counter the

above-mentioned arguments, the author exculpates the process as well as the
document from being called conservative through the following arguments:
Firstly that the pre and post-constitutional government structure is non-com-
parable. The “Constitution created a federal democracy with all the juridical
and political instruments of individual, federal, local, and provisional self-gov-
ernance” based on universal adult franchise and equality of citizenship which
was non-existent prior to the enactment of Constitution; secondly the sub-
ject of imperial government had now become a citizen of a republic connot-
ing a change in legal relationship between the individual and State; thirdly the
Constitution sought a thorough reconstruction of State and society itself which
had suffocated the freedom and equality in India and lastly the author coun-
ters the broader argument of conservative Constitution by differentiating the
national movement from the framing of the Constitution and dubbing the lat-
ter process as much more inclusive of the ideas left excluded by the dominant
National Movement.

II. CONSTITUTIONAL TRINITY

The structure of the book is in three sets of cases pertaining to Equality,

Liberty and Fraternity. Adopted from the French revolution these three words
are entrenched in the Preamble to the Constitution but at the same time have
much more detailed meaning and nuances than its French counterparts. Studied
individually to discuss the potential of the ‘Transformative Judgments’ delib-
erated in the book, the transformative potential of this constitutional trinity as
2
Virendra Singh v. State of U.P., AIR 1954 SC 447: (1955) 1 SCR 415.
 CNLU LAW JOURNAL–2020-21  327

per the author can only shine through when read together. The dependence of
these three terms on each other as per the author is mutual. The meaning of
fraternity itself cannot be understood as the subordination of individual inter-
ests for the greater good but has to be understood in a sense which fully real-
izes the liberty and equality of each individual. The issues of untouchability,
the subordination of a group to another, etc. which had resulted in a divided
society were to be demolished by the Constitution formulating a society based
on the principles of equality, liberty and fraternity.

III. DIRECTION TO INTERPRETATION

It is necessary to understand that the Transformative Constitution is along

other things a mode of interpreting the Constitution and as per the author a
very compelling one “when viewed in light of its text (Constitution) and con-
text (of framing).” He reaches this conclusion through various arguments which
study first the history of Independent movement and other parallel ‘subaltern
movements’, the reading of constitutional assembly debates, making an argu-
ment with the help of both that the Constitution was written with a transform-
ative vision and then discussing the individual judgments which as per the
author fit the transformative vision of the Constitution.

The reason for such a framework to interpret Constitution is necessary

because the words in the text cannot be separated from the complete text as
a whole, the text cannot be separated from the history of its framing and the
history of framing cannot be separated from the history of the thoughts and
struggles which had shaped the understanding of the founding fathers. It is
important that these movements and struggles of hundreds of years against the
alien ruler and against indigenous social and economic domination be read as
an interpretive tool. And if this struggle is not considered while interpreting
the constitutional text then it will be a great disservice to that struggle itself
which gave us independence.

IV. DISCUSSION ON RADICAL IDEAS

All the chapters follow this general outline stated above and make for a fas-
cinating read. The author has at the end of various chapters given ideas which
are radical as well as seminal and are worth discussing. One among them is
the idea of ‘community of property’ discussed at the end of the sixth chapter
titled ‘The Freedom to Work’. The author firstly argues that the housework
done by a woman in a household remains unremunerated and it being enforced
by gendered roles within the family structure makes it comparable to begar as
both share common roots of oppressive social structure. To remunerate this
unpaid labour of a woman there is a need to give her an equal enforceable
right in the matrimonial property bought after marriage regardless of it being
328  THE TRANSFORMATIVE CONSTITUTIO

owned by the husband to recognize her economic contribution to the household

work.

The book has at several instances put to stark nakedness our various
assumptions regarding laws which rhetorically are meant to protect citizens
like UAPA, NSA and AFSPA but are used by the State to declare a perpet-
ual emergency. The courts have failed to recognize their own role in support-
ing the ADM Jabalpur jurisprudence directly or indirectly which is otherwise
abhorred unequivocally by everyone.

V. REALIZING THE TRANSFORMATIVE VISION

The book is a collection of radical thoughts, which need to be realized by

means of court through its judgments in the future. For Bhatia, it is not just the
ends that matter but also the means by which those ends are to be achieved.
And the most revolutionary of them i.e. Public Interest Litigation is the one
which is not transformative as per the author since this procedure (of PIL)
itself is absent in Pre-Constitutional movement, in the Constitutional assem-
bly debates and the Constitutional text itself. The author has critiqued the pro-
cedural irregularities that take place in the PIL hearings to enable the court
to take quasi-legislative and executive actions. The PILs as per author “mis-
understands the role of the courts in our constitutional scheme vis-à-vis pop-
ular democracy” which is also a major contradiction in the book. Although
the author has been careful about the role the courts have to play in a popular
democracy like India but has at the same time supported decisions of the court
which could be easily be termed as quasi-legislative like that of providing res-
ervation for Transgender.3

An idea like ‘community of property’ discussed in the book the author

asserts can be realized through judicial creativity. But the author has failed
to answer if this creativity will be different from the usual wide reading of
Article 142 (along with Article 23), an approach which the author has criticized
in his book.

The text of the book presents an impactful reading of the Fundamental

rights. The impact of this book or the idea of a transformative vision can
only be realized when the courts further the transformative vision of the
Constitution through their judgments in the future. The book makes a very
compelling case that the Constitution belongs to margins that were never seen
or touched or were deliberately ignored by individuals or groups empowered
either by the State or by social structures. This is what makes the book in the
author’s own words ‘a contrapuntal canon’. The book reaffirms and widens the

3
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
 CNLU LAW JOURNAL–2020-21  329

role of the Constitution and the constitutional court to end discrimination by

the State and individuals over the less powerful.

In many of the recent judgments of the Supreme Court on Adultery,4

Section 377,5 Sabarimala6 and the one on reservation7 have in one sense or
another accepted the transformative vision of the Constitution which aligns
with what the author has argued in the book. Like in the recent judgment on
reservation, Justice D.Y. Chandrachud remarked that “.. a meritorious candidate
is not merely one who is talented or successful but also one whose appoint-
ment fulfils the constitutional goals of uplifting members of the SCs and STs
and ensuring a diverse and representative administration.”8 This is the kind
of transformative reading of the constitutional provisions which can give full
membership to the individuals left out and even if included are abhorred as
unmeritorious.

It is necessary to point that one does not have to buy this book to under-
stand what Bhatia wants to assert. You can follow his writings on this issue
on news websites, his blog9 and his several papers on SSRN10 all of which are
freely available on the web. The book provides a much more comprehensive
historical and philosophical analysis of constitutional making as well as legal
analysis and must be preferred over such sources. Further what is important
is his choice of a publisher i.e. Harper Collins and not any academic publisher
which would have made the book more expensive. The book is priced at 699
but is available online on discounted rates and must be bought by everyone
including law students, lawyers, academicians, activists but most importantly
by the judges of our Constitutional Courts.

VI. CONCLUSION

The vision of Transformative Constitution is ever evolving and has the

potential to explore issues through constitutional lenses which may seem futur-
istic as the author as explored in the Epilogue to his book while discussing the
role of technology over people’s lives and how the private regimes of power
deal with it. It is argued that the intersection of technology and constitutional
rights is something which transformative constitutionalism cannot ignore as
the technology-filled future is much scarier for the constitutional principles. In
this sense the book has opened various topics which are related to technologi-
cal self-determination that can be studied in future as the 21st century has just
4
Joseph Shine v. Union of India, (2018) 2 SCC 189.
5
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
6
Indian Young Lawyer’s Assn. v. State of Kerala, (2016) 16 SCC 810.
7
B.K. Pavitra v. Union of India, 2018 SCC OnLine SC 3341.
8
Ibid.
9
<Indconlawphil.wordpress.com>.
10
<https://papers.ssrn.com/sol3/results.cfm?RequestTimeout=50000000>.
330  THE TRANSFORMATIVE CONSTITUTIO

started and there is a lot more to come in the technological sphere which will
face constitutional challenge and there and then the transformative role of the
Constitution will have to be realized in much more progressive manner.

And if the court chooses to be progressive in its approach to constitutional

interpretation then there will be a fight between the interpretations which the
court will have to choose. The fight will be between the Constitution as a
living tree or Constitution as a transformative document. The approach of a
transformative Constitution is to check the constitutionality of an issue on the
grounds of the text of the Constitution and the context in which it was made.
The contemporary problems may in principle be similar to the ones which
our constitutional framers faced at that time, but the substantial link between
the problem and its principle might seem so thin that it could be overlooked
even by progressive judges in future. And at those junctures, the courts might
choose living tree constitutionalism over the transformative one. This is the
point where the future works on Transformative Constitutionalism should focus
to make a convincing framework where the Fundamental Rights can thrive
despite the sneaky methods that technology uses to limit those rights.
 P.P. MITRA, AN INTRODUCTION
TO ANIMAL LAWS IN INDIA
(Thomson Reuters, Gurgaon, 2019), ISBN 978-93-89046-31-1

—Dr. Prakash Sharma*

Animal law has several dimensions according to their position to human

society and environment. There are factors like habit, convention, amusement,
convenience or pleasure which determine and establish association of human
with animals. According to the ancient Indian philosophy animals are ‘sentient’
beings and are capable of interacting with humans. The idea was that since
God is omnipotent and omnipresent it exists in both living and non-living
entities, including animals, plants, caves, etc. This is supported by the ancient
Indian literature that treats animals as morally equivalent to humans and in
certain occasion above humans. For ancient India, nature was God and accord-
ingly we have developed a sense of environmental ethics that brought values
into practice, for instance it was believed that it is in the interest of all (living
and non-living) to live in harmony.

Over the course of time there has been distinction made between human
beings as law’s subjects and animals as law’s objects (classifying animals as
property). Of course, the essence of law is classification and every legal cate-
gory is a product that determines the manner in which disputes between par-
ties are resolved, however, the process of classification ought to be fair.1 Now,
since the coherence of a legal category depends upon the validity of the pro-
cesses of classification from which the category is derived, this classification
of animals being property and not legal persons, takes away any possibility of
possessing the basic rights and freedoms of legal persons, including freedom
of movement and protection from harm. It is for this reason, a true survey of
animal law requires the inclusion of discussion of ‘utilitarian’ versus ‘deonto-
logical’ conceptions of animal ‘personhood’; revealing either ‘Bentham’s util-
itarianism’ or a ‘welfarist sensibility’.2 This perhaps calls for some plausible
*
Assistant Professor, Vivekananda Institute of Professional Studies, New Delhi. Vivekananda
School of Law and Legal Studies,
1
Wendy A. Adams, “Human Subjects and Animal Objects: Animals as ‘Other’ in Law”, 3(1)
Journal of Animal Law and Ethics 31, 32 (2009).
2
See generally Jeremy Bentham, An Introduction to the Principles of Morals and Legislation
(Royal Exchange, London, 1823). (In determining ethical responsibility to animals, Bentham
332  AN INTRODUCTION TO ANIMAL LAWS IN INDIA

questions, for instance, whether acceptable usage of animals depends on a tran-

scendental arithmetic of how much hedonic pleasure/pain is derived from them
or whether usage is a question of autonomy based on particular characteristics
of the ‘animal in question’.

Robert Nozwick provide a concise but admirably effective explanation

when he writes that animal welfare constitutes “utilitarianism for animals,
Kantianism for people.”3 For instance, the legislation regulating the treatment
of animals, around the world, follows an ‘animal welfare ethic’, where law per-
mits exploitation of animals (provided it is significantly beneficial for humans).
This further strengthened by the fact that no country in the world, for instance,
has prohibited the use of animals for medical research or as a source of food.

Having said this, the present trend is move from philosophical argument of
‘animal welfare law’ to ‘animal rights movements’. The latter concept argues
for ‘humane treatment principle’ for animals.4 It suggests that the infliction
of unnecessary suffering on animals by using cruel and harmful techniques
employed on animals are unnecessary, in the sense that they do not produce
human benefits or that such benefits can be achieved in other ways.5 Since
much is now known about the content and degree of animal suffering, and it is
increasingly difficult to deny that animals suffer in a variety of ways, not just
physically.

I. ANIMAL LAW AND ENVIRONMENT LAW

Environmental law and animal law share many common elements and goals,
but also exhibit many fundamental differences. Environmental law, with its
intricate layers of international, State, and local laws, is an established law.
In fact, without having any reference in United Nations Charter, environment
law has developed immensely. It has witnessed development of concepts like
sustainable development, public trust doctrine, etc., which no longer represent
international environment law as preservationist but conservationist. On the
other hand, there have been massive developments in the field of animal law.

wrote that the threshold question is “Not, Can They Reason? Nor, Can They Talk? But, Can
They Suffer?”, id. at 311); John Rawls, A Theory of Justice (Oxford University Press, London,
1972) (describing moral personhood as depending on two factors: first, a conception of their
good, and second, a sense of justice and desire to act upon that sense, id. at 505), and Peter
Carruthers, The Animals Issue: Moral Theory in Practice (Cambridge University Press, New
York, 1992) (arguing that animals do not have moral standing, but, nevertheless, humans must
place moral constraints on their treatment of animals, which is pertinent in discussing a ver-
sion of liberalism).
3
Robert Nozick, Anarchy, State and Utopia 35-42 (Basic Books, New York, 1974).
4
Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? xxiii-xxiv (Temple
University Press, Philadelphia, 2000).
5
Gary L. Francione, “Animal Welfare and the Moral Value of Nonhuman Animals”, 6(1) Law,
Culture and the Humanities 1-13 (2009).
 CNLU LAW JOURNAL–2020-21  333

In India, as on today, animal law is treated as part of environment law.6 It is

treated as part of greater ‘environmental management’, which represents three
values, namely intrinsic, instrumental and technical. In fact, few suggest that
the animal law section often exists within the broader environmental law sec-
tion.7 However, there will be always be a debate whether animal law is part of
environmental law or it is an independent subject on its own.8 Presently, ani-
mal law faces many of the same legal and strategic challenges that environ-
mental law faced in seeking to establish a more secure foothold in India.

II. ANIMALS IN INTERNATIONAL LAW

Since the latter half of the 20th century saw mankind paying an emphasized
attention to environmental protection and within that to animal protection.
Sustaining our environment for the next generation in a properly manner is a
key issue. The analysis demonstrates five International Conventions, namely,
Ramsar Convention, 1971; Convention on International Trade in Endangered
Species of Wild Fauna and Flora, 1975 (Washington Convention); Bern
Convention, 1979; Bonn Convention, 1983; and the Convention on Biological
Diversity, 1992. All of them have a fundamental role in animal protection.
Ramsar Convention provides international platform for international cooper-
ation and national action and for the conservation and wise use of wetlands
and their resources. Bonn Convention ensures a global framework for the con-
servation and sustainable use of migratory animals and their habitats. Bern
Convention deals with the protection of European Wildlife and nature habitats.
Washington Convention protects endangered plants and animals. Convention
on Biological Diversity deals with the protection of the whole wildlife.

The increasing emergence of animal matters on the international platform,

and their newly gained prominence in public discussion of international charac-
ter has resulted in the formation of global animal law. It is emerging as a novel
and promising discrete branch of international law.9 This area of law acknowl-
edges the transboundary reality of human-animal interactions and demands.
Being multi-directional it has potential of operating horizontally as compara-
tive animal law and vertically from the perspective of the international, supra-
national and regional level. Take for example the impact of climate on animal
6
Interestingly, when Prevention of Cruelty to Animals Act, 1960 was enacted the
Environmental Law in India was in the nascent stage.
7
See, Werner Scholtz (ed.), Animal Welfare and International Environmental Law (Edward
Elgar Publishing, Cheltenham, 2019).
8
See, Pamela Frasch and Joyce Tischler, “Animal Law: The Next Generation”, 25(3) Animal
Law 303-340 (2019) (Authors argue that Animal Law has seen a dramatic increase in the lev-
els of knowledge and understanding that students bring with them as they start survey animal
law classes, id. at 305).
9
Charlotte E. Blattner, “Global Animal Law: Hope beyond Illusion: The Potential and Potential
Limits of International Law in Regulating Animal Matters”, 3(1) Mid-Atlantic Journal on Law
and Public Policy 10-54 (2015).
334  AN INTRODUCTION TO ANIMAL LAWS IN INDIA

migration.10 Climate change is predicted to have many varied impacts on spe-

cies around the world, therefore there is an urgent to better react to the prob-
lem climate change poses for animal migrations.

III. ANIMAL LAW IN INDIA

Presently, three major laws are directly related to animals in India viz. the
Prevention of Cruelty to Animals Act, 1960, the Wildlife (Protection) Act,
1972 and the Biological Diversity Act, 2002. Apart from these direct laws,
there are various references of animals in different Indian legislations where
animals are protected for resource or property purposes. In India, the whole
matrix of animal laws centres around three concept. First, is the protection of
animals for the betterment of agriculture and development animal husbandry.
Being an agrarian society for time immemorial, animals have been treated as
properties for private individual as well as for the State. Therefore, the protec-
tion and preservation of these properties are obligation of the State.11 Secondly,
animal law is based on ‘ecological purposes’ and ‘environmental utility’
which has got force from international conventions and treaties, initially dur-
ing 1940s, and more precisely from 1970s onwards.12 This type of animal laws
is very wider in theory and Indian Judiciary has performed tremendous role
to protect wild animals and birds for the purpose of the preservation of biodi-
versity and conservation of ecology.13 Thirdly, animal laws in India is purely
based on ethics or morality which is oldest form of animal rights or pure ani-
mal law. Here animals are protected only for their welfare and not for human
resource or human environment.14 Apart from these, several rules and regula-
tions are being framed by States or local bodies in India relating to slaughter
houses or bio wastes but those are mainly subjects of public health and sanita-
tion vested upon States15 or Municipality16 and those cannot be treated as ani-
mal laws.

10
Thomas T. Moore, “Climate Change and Animal Migration”, 41(2) Environmental Law 413-
406 (2011).
11
Entry 15 of State List in Schedule VII of the Constitution of India, 1950 and earlier Entry 20
of Provincial List in Schedule VII of the Government of India Act, 1935.
12
Arts. 48-A, 51-A(g) and Entry 17-B in Concurrent List of Schedule VII in Constitution of
India, 1950 are examples of such type of animal protection.
13
See, P.P. Mitra, Birds, Wetlands and the Law: Indian and International Perspectives
(Thomson Reuters, Gurgaon, 2019), Partha Pratim Mitra and Prakash Sharma, “Development
but Not at the Cost of Biodiversity: A Plan for ‘Living in Harmony with Nature’ ”,
Modern Diplomacy (May 20, 2020), available at <https://moderndiplomacy.eu/2020/05/20/
development-but-not-at-the-cost-of-biodiversity-a-plan-for-living-in-harmony-with-nature/>.
14
Entry 17 in Concurrent List of Schedule VII in Constitution of India or earlier in Entry 22 in
Concurrent List in the Government of India Act, 1935 or 1890’s legislation as “Prevention of
Cruelty to Animals”.
15
Entry 6 of State List in Schedule VII of the Constitution of India.
16
Entry 18 in Schedule XII of the Constitution of India.
 CNLU LAW JOURNAL–2020-21  335

IV. THE BOOK

The astute book,17 is a compendious piece of legal materials as it com-

prises animal related laws, rules and orders passed thereunder, and the judicial
decisions. The book comprises of seventeen chapters along with an introduc-
tion and conclusion. The book has drawn an outline of the current regulations
under Indian law and international perspective for use of animals in farming
and agriculture; the keeping of animals in zoos; using of animals as carrier,
transportation of animals, the keeping of animals as pets; the use of animals in
experimentation and the protection of wildlife and endangered species, etc.

The Foreword of the book has been written by Justice K.S.P.

Radhakrishnan, former judge of Supreme Court of India who delivered the
landmark judgment of Animal Welfare Board of India v. A. Nagaraja,18 which
established new dimension of ‘animal law jurispru­dence’ in India. Earlier, he
had also pronounced judgments on eco-centric environmental­ism19 and regula-
tion of slaughter houses.20

The book gives a good foundation of the subject covering position of animal
within human law and the legal concept of animal, domestic animal and wild-
life in Indian and international law. Also, at the moment, every battle has to
be fought over and over again in each country as those trying to help animals
seek to justify new laws and restrictions.21 In this regard, the second chapter
starts with a basic question whether animal can be regarded as person and not
as property established in existing legal system. The meaning of animal rights,
position of animals under law of torts, provision of animals on the highway
along with the scienter rule,22 position of animals under criminal laws and the
principles of ownership of animals are minutely discussed in this chapter.

In national law, States simply regarded animal as either useful or vicious

and thus protect only the economic value of wildlife as a source of food and
clothing. While welfare advocates consider that all species should be pro-
tected for ethical and humanitarian reasons and environmentalists urge
that particular species should be protected for ecological reasons.23 The next
chapter titled Animals in International Law examines guidelines of World
Health Organization of Animal Health (OIE) on five freedoms of animal

17
P.P. Mitra, An Introduction to Animal Laws in India (Thomson Reuters, Gurgaon, 2019).
18
(2014) 7 SCC 547.
19
Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8 SCC 234.
20
Laxmi Narain Modi v. Union of India, (2014) 1 SCC 243.
21
David Favre, “An International Treaty for Animal Welfare”, 18 Animal Law 237(2012).
22
Supra note 18 at 14.
23
Patricia Birnie, Alan E. Boyle and Catherine Redgwell, International Law and the
Environment 596, 597 (Oxford University Press, New York, 2009).
336  AN INTRODUCTION TO ANIMAL LAWS IN INDIA

welfare.24 The role of Universal Declaration on animal welfare, World Health

Organization for animal health and Internal League for animal right, European
Union’s Convention on animal and various International Conventions for wild
animals have been highlighted here. David Favre argues that concern for indi-
vidual animals seldom exists in the international realm.25 Favre opines that
“when there are limitations on methods of killing, capture, or transportation, it
is usually out of concern that the natural resource should not be wasted rather
than concern for the pain and suffering of individual animals. There is no
international anticruelty treaty.”26 The Indian Supreme Court has also lamented
on similar line that there is no international agreement to ensure the welfare
and protection of animals and International community should hang their head
in shame, for not recognizing their rights all these ages.27

The other chapters cover the constitutional position of animals in India,28

various measures related to cattle preservation and livestock improvement,29
the prevention of cruelty to animals30 subsequently animal slaughter,31 animal
sacrifice32 and experimentation on Animals.33 The author reveals that there are
some regulations on clinical trials and medicinal tests prevailing in India.34
Besides circus, magic show, animal race are platforms where animals are per-
forming for human entertainment and human income. Chapter Ten, examines
the use of animals for ‘jallikattu’ in Tamil Nadu, ‘tonga’ race in Rajasthan and
bullock cart race different parts of the country.

Chapter eleven analyzes laws on transport of various animals by different

modes, transportation of animals before slaughter for food, general conditions
for maintaining general hygiene and sanitary practices by food business oper-
ators, the regulations for loading of animals and guidelines for space require-
ment during transportation.35 The book has also mentioned various provisions
of different carriage laws in India where animals are defined as goods. The
book covers chapters on treatment of animals in case they catch any particular

24
Supra note 17 at 25.
25
David Favre, “Wildlife Jurisprudence”, 25 Journal of Environmental Law and Litigation 459-
510 (2010).
26
Id., at 475.
27
Supra note 18 at para 47.
28
Supra note 17 at 40.
29
Id., at 49.
30
Id., at 71.
31
Id., at 94.
32
Id., at 134.
33
Id., at 141.
34
Law Commission of India, 261st Report on Need to Regulate Pet Shops and Dog and
Aquarium Fish Breeding (2015).
35
See also the Law Commission of India, 269th Report on Transportation and House-Keeping of
Egg-Laying Hens (Lawyers) and Broiler Chickens (2017).
 CNLU LAW JOURNAL–2020-21  337

disease,36 their trade,37 and measures pertaining to the conservation of wild

animals.38 Earlier author has already published his book on conservation of
wild animals.39

Chapter fifteen is very useful for law scholars which explain about the role
of judiciary on animal protection in India.40 Many cases of Supreme Court
and High Courts have been discussed on animal protection and analyzed
about judicial activism to protect the wildlife and animals and the application
of doctrine of ‘Parens Patriae’. The recent trend of Indian judiciary has been
observed to include animals within the concept of ‘person’ under Article 21
of the Constitution mainly with the ratio of A. Nagaraja case.41 Likewise, the
remaining chapters cover the authorities for protection of animals in India,42
projects and policies43, including consumer protection and animal welfare in
India.44

In the concluding chapter, the author has reminded about urgent need for
introduction of the ‘Animal Law’ subject in the legal curriculum of the country
(on the line with the European and American law schools).45 The roots of such
thought originate from the decision of the Kerala High Court,46 wherein the
court asked, “If humans are entitled to fundamental rights, why not animals?”47
In 2015, the Bar Council of India included ‘Animal Protection Laws’ in the
curriculum as one of the subjects to be taught to the law students.48 Perhaps,
introduction of animal rights advocacy programs in law schools would serve
the vital needs of educating students and the public about the inadequate pro-
tection the law provides to animals. This could be possible when the animal
rights advocates are with a background in advocacy, psychology, economics,
business, medicine, philosophy, and ethics.

V. CONCLUSION

To understand any area of law, it requires not only knowledge of the rel-
evant legislation and cases but also an appreciation of how the law ‘in the

36
Supra note 17 at 184.
37
Id. at 191
38
Id. at 199.
39
See also P.P. Mitra, Wild Animal Protection Laws in India (LexisNexis, 2016).
40
Supra note 17 at 239.
41
Supra note 18.
42
Supra note 17 at 258.
43
Id. at 279.
44
Id. at 296.
45
See Partha Pratim Mitra, “Introduction of Animal Law in Continuing Legal Education”, 46(4)
Indian Bar Review 240, 241 (2019).
46
N.R. Nair v. Union of India, 2000 SCC OnLine Ker 82 : AIR 2000 Ker 340.
47
Id. at para 13.
48
BCI: LE: Circular No: 4/2015 Dated 28th September 2015.
338  AN INTRODUCTION TO ANIMAL LAWS IN INDIA

books’ is interpreted and applied. Animal Law continues to gain momentum as

a recognised field of legal study in other parts of world,49 however, in India it
is in a nascent stage. The relatively new field has witnessed little research, par-
ticularly into the operation of Centre and State animal welfare legislations. The
book appears to be a timely addition for an emerging field of law where the
legal protection for social and biological needs of animals has been explained.
This branch law is a combination of statutory laws and case laws, concerning
the interests of animals or the interests of humans with respect to animals. The
book is written in lucid language with crisp style. The book has the potential
to serve the interests of lawyers, activists, students, and all human being hav-
ing compassion for every living element on this mother earth.

Prakash Sharma50*

49
For development of Animal Law in Australia and New Zealand, see Peter Sankoff and Steven
White (eds.), Animal Law in Australasia—A New Dialogue (Federation Press, Sydney, 2009).
In United States of America, see David Favre, “The Gathering Momentum”, 1 Journal of
Animal Law 1, 9-14 (2005). In People’s Republic of China, see Amanda Whitfort, “Evaluating
China’s Draft Animal Protection Law”, 34(2) Sydney Law Review 347-370 (2012).
50
* Assistant Professor, Vivekananda School of Law and Legal Studies, Vivekananda Institute
of Professional Studies, New Delhi.
 FORM IV

STATEMENT ABOUT OWNERSHIP

AND OTHER PARTICULARS

(See Rule 8)

1. Place of Publication : : Chanakya National Law University,

Nyaya Nagar, Mithapur,
Patna-800001
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University
Nationality : Indian
Address : Nyaya Nagar, Mithapur,
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Nationality : Indian
Address : Nyaya Nagar, Mithapur,
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(Retd.)
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Address : Chanakya National Law University,
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Patna-800001

I Hon’ble Justice Smt. Mridula Mishra (Retd), hereby declare

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belief.

Sd/-
Hon’ble Justice Smt. Mridula Mishra (Retd)
340  ABOUT THE JOURNAL

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