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ILI Law Review

Vol. No. I Issue No. I Feb. 2010

EDITORIAL COMMITTEE

Editor-in-Chief

D. S. Sengar

Director

Executive Editor

Vishnu Konoorayar

Asst. Research Professor

Editors

Avijit Mani Tripathi

Sreeparvathy G.

Latika Vashist

Samreen Hussain

Slahuddin Ahmad

Sridip Nambiar

Saadiya Suleman

Jupi Gogoi

Anubha Dhulia

© The Indian law Institute, New Delhi-110001

ILI Law Review

Volume 1 February 2010 Issue 1

CONTENTS

ARTICLES

Paradigm of ‘Green’ Adjudication:

Developing Principles for Indian

Environmental Decision-Making in

Disputes Involving Scientific Uncertainty

… Sridip Nambiar

1

Rethinking Reservation in Higher

Education in India

… Mehbubul H. Laskar

25

Atrocities on Dalits- A Human Rights

Perspective

… Ajay

54

Cybersquatting: Pits and Stops … Slahuddin Ahmed 79

NOTES

Freedom of Religion and Anti Conversion

Laws in India: An Overview

… Saadiya Suleman

106

Triple Talaq: A Socio Legal Analysis … Samreen Hussain 129

Concept of ‘Human’ vis-à-vis Human

Rights: An Analysis

… Sreeparvathy G.

151

Laws on Food Adulteration: A Critical

Study with Special Reference to the Food

Safety and Standards Act, 2006

… Anubha Dhulia

163

COMMENTS

Acknowledging Accountability?

A Comment on Secretary General,

Supreme Court of India v. Subhash C.

Agarwal

… Avijit Mani Tripathi

189

A Comment on Shakson Belthissor v. State

of Kerala and Another

… V. Elan Chezhiyan

198

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2010] ILI Law Review

1

PARADIGM OF „GREEN‟ ADJUDICATION: DEVELOPING

PRINCIPLES FOR INDIAN ENVIRONMENTAL DECISION-

MAKING IN DISPUTES INVOLVING SCIENTIFIC

UNCERTAINTY

Sridip Nambiar

Abstract

This paper explores the need for incorporating principles of „ecological justice‟ in

environmental adjudicatory mechanisms in India. It calls for a reinvention of

approaches, towards creation of institutional arrangements and of individual

decision-makers within such arrangements. The need for a reinvention is analysed in

the background of a proposal to constitute a National Green Tribunal to exclusively

deal with environmental disputes. Part I portrays the context of risk society in which

assessment and evaluation of environmental risks gain importance. Part II describes

the efforts of the judiciary in handling complex environmental matters within such

context. It is argued that, as administrative concerns are entrenched in

environmental disputes, specialist tribunals with a combination of judicial, scientific

and administrative expertise may have better institutional competence

comparatively. Part III highlights the need for incorporating the principle of

ecological justice in any alternative institution and at the same time ensuring that

such institutions have the same kind of independence, reliability and fairness as a

judicial set-up in its procedures. Part IV advocates reinvention of attitudes on the

part of individual decision makers, whether judicial or expert that align with the

concept of environmental ethics. It is concluded in Part V that a re-integration of

nature is urgently required in our theoretical discourses and public institutions. Such

integration is possible only if we develop indigenous principles of ecological

conservation.

I. Risk Society/Where we are now.

WE LIVE in a risk society. Risk has become ‗the single point upon

which contemporary societies question themselves, analyse

themselves, seek their values, and, perhaps, recognise their limits.‘1 A

risk society is characterized by a lack or impossibility of external

attribution of hazards. The focus of governance would be on the basis

of decision-making - it is about how we govern rather than the

LL.M. II Semester (Two-Year Course), Indian Law Institute, New Delhi.

1 Elizabeth Fisher, ―Risk and Environmental Law‖, in Benjamin J. Richardson and

Stephan Wood (eds.), Environmental Law for Sustainability 99 (2006).

Paradigm of „Green‟ Adjudication [Vol. 1 : 1

2

outcomes of such governance. Ulrich Beck, author of Risk Society:

Towards a New Modernity poses the central question for a risk society

to be – how to feign control over the uncontrollable?2 Society has

come to understand itself and its problems in terms of risk

management, because of its performative nature – it produces the

effect that it names.3 Governance in this context would be based on

―making an uncertain and unknowable future amenable to risk

management.‖4

The concept of risk comprises of the normative judgment of a

possible event or condition as adverse and the probability that it will

come about.5 The main features of decisions concerning risk are (i)

factual - measurement or estimation of risk and (ii) normative, i.e its

acceptability – whether those who bear the risk consent to bear it and

whether they themselves reap the benefit.6 However, risk analysis

brought with it difficult questions because acceptability, which is a

social phenomena, is not easily or almost never quantifiable.7 As the

general tendency would be to favour risk aversion, consent required

for taking the risk cannot be implied automatically in any case. A

decision on risk management depends on a consideration of various

interlocking factors. The debates on risk are thus centred on the

question – how safe is safe enough?

Any decision on risk carries with it various challenges. The

primary issue is regarding the definition of risk and risk assessment.

As the concept of risk, inter alia, is a regulatory concept, socio-

political factors exercise substantial influence. There are definitions

that restrict its scope to hazard identification and characterisation.8

There are other definitions which widens its scope to include risk

assessment, risk management and risk communication.9 Though risk

assessment seems to be the exclusive domain of scientists (in

2 The aspects of risk in a different scenario are dealt in Louis Amoore and Marieke-

de Goede (eds.), Risk and the War on Terror (2008). 3 Ibid. The element of risk can be analysed with respect insurance sector, financial

markets and even ‗war on terror‘ (as is shown in Supra note 2). 4 Ibid.

5 Lawrence C. Becker & Charlotte B. Becker, Encyclopedia of Ethics 1513 (2001).

6 Ibid.

7 Similar to the opposition to hedonistic ―pain and pleasure‖ theory of utilitarianism.

8 Supra note 1.

9 Ibid.


3

environmental matters) and evaluation, that of policy makers, they

may not be water-tight compartments. The factual and evaluative

components may be intertwined in some cases rendering ineffective

any division of labour in the decision-making process. Moreover,

when persons who are potentially at risk do not exist (for example,

future generations), the question arises whether a moral obligation is

there to include them in the evaluation process. Complications arise

due to the fact that ―the use of risk is not neutral, and understanding

problems in terms of risk has a powerful impact on how those

problems are characterised and solved.‖10

These challenges find contemporary importance in environmental

problems, which ‗are found at the intersection of ecosystems and

human social systems‘.11

These problems present a scenario where we

are expected to define our understanding of various aspects of risk

analysis. Though science plays a major role in our understanding of

the physical world, it is extremely limited in some cases owing to

scientific uncertainties – future outcomes of actions are inherently

unpredictable.12

Uncertainty leads to various problems like the fallacy

in presuming that ‗no evidence of harm means no harm‘,13

that

scientific assessments are limited in predicting the consequences of

actions, that there is no way of collecting the information to assess

future impacts, and that there are ontological limitations on the

capacity to predict future outcomes.14

Further, environmental problems

are ‗polycentric‘15

in nature owing to possibility of inclusion of a wide

range of parties who might be interested in its outcome.

State has an important role to play as concepts of risk, risk

assessment and risk management can be better understood by their

characterisation by in policies or legislations. The approaches inherent

in a decision on risk by any agency may be broadly classified into –

10

Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (2007). 11

Supra note 1. 12

Ibid. 13

Fisher in supra note 10 quotes Wynne as saying, ―We don‘t know what we don‘t

know‖. 14

Supra note 1. 15

Lon L. Fuller, ―The Forms and Limits of Adjudication‖, 92 Harvard Law Review

353 (1978). The term is Michael Polnyi‘s. Where a dispute involves a multiplicity of

interlocking and variable factors, decision on each which would presuppose decision

on all the others, it can be called polycentric.


4

one, a scientific or expert approach to risk as risk is essentially a

scientific concept and the other, which argues that risk evaluation is

inherently value-laden (―its about how communities collectively wish

to live their lives‖).16

The latter approach advocates a democratic

approach which considers ethical values and promotes liberal

autonomy. When resolving risk-based issues, these approaches need

not be easily distinguishable – there might be overwhelming scientific

opinion on the potential harm of an activity, but the community may

be willing to accept the risk in view of the benefit that it guarantees.

Such issues and conflicts between these approaches are described by

Fisher as ‗science/democracy dichotomy‘17

.

The role of law against the background of this conflict may appear

to be merely instrumental. It is expected to support either the scientific

testimony (by seeking assistance from scientific experts) or democratic

considerations (for example, by encouraging public participation for

reaching a solution). However, Fisher disputes the merely instrumental

role attributed to law on the following grounds- (i) such disputes are

not conflicts with facts on one hand and values on the other, but

disagreement over the relevant facts or existing knowledge, (ii) science

and democracy are not necessarily different arenas of activity, as their

interrelationship may change with context and (iii) it tends to minimize

the role of legal discourse, which could constantly shape our

understanding of legitimate risk related decisions.18

Law not only

clarifies the foundational concepts of the discourse, but also helps in

describing the roles various actors have to play when carrying out the

functions entrusted to them. These foundational and functional roles

makes law a vital and vibrant part of risk management in

environmental disputes.

The broader issue of environmental governance is thus a matter of

how our decision-making process ought to be structured – how to give

effect to the functional role of law? Pre-supposition of a dispute can be

said to be the starting point of a judicial process. A judge decides on

the facts of the dispute as brought to it by the parties in accordance

with the law of the land. However, governance in the context of risk

16

Supra note 10. 17

Ibid. 18

Supra note 10 at 17.


5

management may seek a refined approach from the ‗traditional‘ judge.

He has a more collaborative, varying and participatory role in the

various aspects of assessment, evaluation and characterization of risk.

Fisher states four reasons for justifying delegation of risk evaluation to

administrative decision makers – (i) socio-political aspect of risk

analysis (for example, setting pollution standards) cannot be fulfilled

by legislations, (ii) it requires collection, classification and

interpretation of information for which legislature may not have time,

(iii) expertise, not necessarily scientific, is a highly necessary input

and (iv) communication between those involved in decision-making to

decide on various modes of collection and dissemination of

information can be achieved only by administrative agencies.19

However, such evaluation is not the sole component of risk

management. An adjudicatory body may be entrusted with duties of

reviewing decisions taken after considering complex technical matters.

Thus, any adjudicatory mechanism would form a part of the

environmental governance structure, every link of which ought to

understand, analyse and decide on issues of risk management. Such

interlinkage of judicial, scientific and administrative aspects leads us

to think of alternative arrangements.

Ministry of Environment and Forests (‗MoEF‘) has brought out a

proposal for setting up a National Environment Protection Authority

(‗NEPA‘), which will be an autonomous statutory body responsible for

regulation, monitoring and enforcement of environmental matters.20

The National Green Tribunal (‗NGT‘), the establishment of which is

also in the pipeline, will serve as the adjudicatory mechanism for

decisions of the authority.21

That means, after establishment, NEPA

will carry out the role of risk regulation and NGT will be responsible

for what Fisher calls ‗administrative constitutionalism‘.22

In other

words, NGT may be part of a structure which supervises risk

management in the country. What should be the role of such a

tribunal? What ought to be the nature of its adjudicatory process?

19

Ibid. 20

A discussion paper dated Sep. 17, 2009 was issued for eliciting public comments. 21

National Green Tribunal Bill, 2008 has been referred to a parliamentary standing

committee. 22

Supra note 10.


6

II. Indian Environmental Decision-Making/What we have done.

Before we discuss the role of the tribunal and decision-makers in this

context, the current Indian practice of handling scientifically sensitive

environmental issues has to be understood. This is for satisfying

ourselves that a change may be necessary on a comparative level. As

Lord Woolf asks, are the judiciary environmentally myopic?23

Environmental legislations were enacted on the basis of the shared

legislative authority,24

and other constitutional provisions.25

Environmental protection was not mentioned in the original

Constitution and was later introduced as a directive principle of state

policy26

and as a fundamental duty27

by way of an amendment. Every

citizen is entrusted with a duty to protect the environment. The

purpose of the amendment was to ensure that the State and citizens are

guided by environmental considerations when pursuing any activity.

The conspicuous absence of ‗right‘ to environment, even after the

amendment may be noted. But, the Bhopal gas tragedy case reminded

the court that an unenforceable directive principle and inactive

citizenry could lead to governmental inaction and serious damage to

the public. This called for relaxation of norms for entertaining disputes

relating to environment, which would in turn encourage participation

by concerned individuals and keep a check on unrestrained

governmental power. As a first step, right to a healthy environment as

a right was recognized in Subash Kumar v. State of Bihar.28

It was

23

Lord Woolf, ―Are the Judiciary Environmentally Myopic?‖, 4(1) Journal of

Environmental Law 1(1995). The article was discussed in Nayudu I, discussed below

at infra note 37. 24

Constitution of India, art. 252. 25

Id., art. 253. 26

Id., art. 48A, inserted by Constitution (Forty-Second Amendment) Act, 1976

section 10 (with effect from Jan. 3, 1977), states that, ―State shall endeavor to protect

and improve the environment and to safeguard the forests and wildlife of the

country.‖ 27

Id., art. 51A (g) states that it shall be the duty of every citizen of India ―to protect

and improve the natural environment including forests, lakes, rivers, and wildlife,

and to have compassion for living creatures.‖ 28

(1991) 5 SCC 598.


7

then included within the ambit of the ever-growing ‗right to life‘.29

The scope of right to environment within the right to life was then

developed to include right to clean water30

, clean air31

etc. The

recognition of these rights coincided with the development of public

interest litigation and relaxation of locus standi principle, which led to

an increase in the volume of litigation.32

Courts became more

confident in dealing with and governing environmental disputes. In

most cases, governmental apathy was noted as the major cause for

disputes. The activist court began to actively involve itself in the

environmental governance of the country on the basis of its

interpretation of the Constitution and lack of directional policy. The

shift from ‗duty‘ to ‗rights‘ created by the judiciary, influenced future

judicial thought in a tremendous way. Though, in many cases,

environmental disputes were resolved by reference to common law

remedies, like actionable nuisance,33

negligence and strict liability34

,

public interest litigation prompted the apex court to assume a role it

had never even thought it could possess.

Today, the Indian environmental decision-making has evolved to

become an ‗occupied field‘35

of Indian judiciary. In spite of

confessions of its inability to decide on ‗complex scientific matters‘36

and constant requests for setting up a specialised body37

(whether

courts or tribunals), it has forayed into various aspects of environment

management. Environmental laws were mandated to be strictly

enforced.38

It has affirmed that the principles of ‗polluter pays‘39

,

29

Virender Gaur & Ors. v. State of Haryana & Ors., (1995) 2 SCC 577. 30

Mrs. Susheta v. State of Tamil Nadu & Ors., (2006) 6 SCC 563. 31

Murli Deora v. Union of India, (2001) 8 SCC 765. 32

Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and

Bangladesh (2004). 33

Infra note 43. 34

Mukesh Textile Mills Pvt Ltd v. H.R. Subrahmanya Sastri, AIR 1987 Kant. 87. 35

Usually referred to in the context of constitutional interpretation. 36

In M.C Mehta v. Union of India, (1986) 2 SCC 176, popularly known as ‗oleum

gas leak‘ case. The case dealt with the aspect of permission to continue for a factory,

from which there was a fatal leakage of hazardous substances. Experts suggested

relocation as the only measure to completely eliminate the risk. 37

Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P.

Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718 (hereinafter referred to

as ‗Nayudu I‟), 38

ICELA. 39

Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.


8

‗sustainable development‘40

, ‗public trust doctrine‘41

and

‗intergenerational equity‘42

are law of the land, though these principles

have not been incorporated into any legislative framework.43

Whether

incorporation of unratified international obligations in binding judicial

decisions is advisable is a different aspect. But, the point to note here

is that, our courts used various strategies to evolve a mechanism within

the existing court structure to deal with such issues.

This mechanism pervaded, within no time, the environmental

governance scene in the country. Wide-ranging directions were given

for reducing vehicular pollution,44

preventing river pollution,

relocating stone-quarries45

etc. Courts refused to entertain the ground

of insufficiency of funds or staff46

as a reason for not performing

State‘s obligations,47

without attempting at even a preliminary

financial due-diligence exercise. It initiated the practice of a

continuing mandamus,48

constantly supervising and suspecting

executive action. It appointed experts and committees to ascertain in

most cases whether clearance has been given by the executive

authorities based on proper application of mind. Any proposed

activity had to thus obtain the formal clearance under the concerned

statute or if it is a government project, from the concerned ministry

and in addition to that, they had to face the possibility of determination

of validity of their proposal by the court itself. It was held that the

court must not reject an ecological case on the ground that it concerns

matters of policy and must examine whether appropriate

environmental considerations have been taken care of and

irrelevancies excluded by the decision-making authority.49

40

Goa Foundation v. Diksha Holdings Private Limited, (2001) 2 SCC 97. 41

M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213. 42

Intellectual Forum, Thirupathi v. State of A.P. & Ors., (2006) 3 SCC 549. 43

Vellore Citizen‟s Welfare Forum v. Union of India, (1996) 5 SCC 647. Though

India is party to various conventions which endorse the principles, affirmation

without any policy framework may not be undesirable. However, there are various

aspects of these principles which are disputed which the court has never discussed. 44

In the National Capital Region in M C Mehta v. Union of India, (1992) 3 SCC 256. 45

Court on its Own Motion v. State of Himachal Pradesh, (1994) For LT 103 46

B.L. Wadehra v. Union of India, AIR 1996 SC 2969. 47

Municipal Council, Ratlam v. Vardhichand & Ors., (1980) 4 SCC 162. 48

K. N. Chinnappa & T.N. Godavarman Thirumulpad v. Union of India, AIR 2003

SC 734. 49

Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.


9

It is when analysing the validity of clearances for projects that the

courts are faced with the task of interpreting the technical aspects of

environmental issues. Some judges refused to decide on such issues,

considering it the domain of the executive branch. It was held that a

court will decline to interfere in the exercise of jurisdiction where the

State Board is alert to the matter.50

But, when it perceived serious

threat owing to lack of proper governmental action, it had to seek out

new ways of dealing with the problem. The court had to seek

assistance from experts in the particular field and analyse whether a

proposed activity was environmentally benign. Bhagwati J in the

Oleum Gas Leak case (1986) used the method of appointing expert

committees for assessing the extent of harm to the environment. It is

worthwhile to note that it is the first case that stressed the need for

‗neutral scientific expertise as an essential input to inform judicial

decision-making‘.51

Setting up of environment courts, on a regional

basis with one ‗professional‘ judge and two experts was also

suggested.52

The court began to realize that complex environmental

data required more serious attention and skilled manpower for proper

appreciation.

In some cases, experts were not only appointed for assessing the

risk factor, but also to ‗report to the court on the adequacy of pollution

control devices installed by an industry, the damage caused by water

pollution and the cost of restitution‘.53

Since M.C. Mehta, appointment

of environmental experts when dealing with disputes has been in

vogue. The method of analysis of data in some cases required many

months in most cases. This meant that the court had to devote more

time to those cases because the expert reports were found to be

insufficient in some and contradictory in some others. The time

constraints and exclusivity of the nature of disputes prompted setting

up of ‗Green benches‘ in various high courts in the country.54

50

Navin Chemicals Manufacturing & Trading Limited v. New Okhala Industrial

Development Authority, (1987) All LJ 13. 51

MC Mehta v. Union of India, (1986) 2 SCC 176, para 22. 52

Id., para 23. Such experts, it was said would be from an Ecological Sciences

Research Group. 53

Pravinbhai Jashbhai Patel v. State of Gujarat, (1995) 2 Guj LR 1210. 54

A division bench of the Supreme Court comprising of Justice Kuldip Singh and S.

Saghir Ahmed directed Calcutta high court chief justice to constitute a special


10

In Godhavarman,55

the Supreme Court made further attempts to

manage and administer environmental matters, when it constituted a

Central Empowered Committee to monitor implementation of their

orders and place any non-compliance case before the court.56

The main

point to be noted is that though committees were appointed for

assessment of risk, the courts would evaluate the report and reach its

own finding. In Nayudu I,57

it was held that the opinion rendered by

any authority is subject to the approval of the referring court. The

scientific referral thus becomes a mere formality and the referring

court became an authority. There are cases where the contradictions in

the scientific expert‘s reports were observed, to the extent that court in

a case said, ―from an institution of this repute, it was not expected that

a report of this kind would be submitted.‖58

However, whether

complete judicial deference is desirable is another issue. In Society for

Protection of Silent Valley v. Union of India59

, the court observed that

it is not their duty ―to evaluate these considerations again as against

the evaluation already done by the government.‖ Further, in Tehri

Bandh Virodhi Sangarsh Samithi v. State of Uttar Pradesh60

, the court

accepted the government version on the aspect of the safety of a

project on the basis of expert reports that the government had

produced. However, reports which established a contrary opinion had

also been submitted by the petitioner, the details of which were not

analysed by the court.

As far as Indian environmental law is concerned, we have

numerous case-specific orders but no principles or guiding standards

have been evolved to improve our understanding of risk. The only

visible aspect is the environmental management taken up

division bench to hear environment related petitions for the first time in the country.

For more details, see www.indiaenvironmentportal.org.in 55

(2002) 5 SCALE 6. 56

The committee was directed to be comprised of nominees of Ministry of

Environment and Forests and members of non-governmental organizations. These

appointments were held to be made in consultation with the amicus curiae in the

case. 57

Supra note 37. 58

Rajendra Singh and Ors v. Government of NCT of Delhi and Ors, W.P (c) Nos.

6729 and 7506 of 2007, decided on Nov. 3, 2008. 59

(Unreported) OP Nos. 2949 and 3025 of 1979, discussed in P. Leelakrishnan,

Environmental Law Case Book (2004). 60

1990 (2) SCALE 1003.


11

unhesitatingly by the courts. It is this attempt to create a parallel rule-

based structure using the machinery of public interest environmental

litigation that raises doubts about ordinary courts‘ institutional

competence and compels us to look for alternatives. This was stressed

in Nayudu I, which prompted the law commission to suggest setting up

of ‗environmental courts‘ in the country.61

However, it cannot be concluded that ordinary courts are incapable

of handling environmental disputes. However, it could be inferred

from the decisions that administrative matters are entrenched in any

environmental decision making process. Better institutional

mechanisms that combine the judicial and administrative activities on

a comparative level may be possible.

In any institutional mechanism that has delivery of justice as its

primary aim, decision makers with ethical ingenuity are highly

desirable – especially when analysing rival scientific opinions in the

context of risk acceptability. If we can draw out the contours of this

individual dimension within an institutional structure, we can have

more clarity on the ‗total‘ functioning of a system.

To conclude, Indian judiciary‘s efforts to revitalize environmental

discourse through creative decisions are commendable, but it also

reminds us of the urgent need to rethink our strategies in dealing with

these problems. The problem is that even when judges review ‗quite

good‘ evidence, there are numerous opportunities for errors.62

Moreover, increased recognition of the importance of international

environmental law institutional recognition at international level has

not had a corresponding impact on the modus operandi at the

municipal level.63

An essentially universal concern has thus been

politically delimited – there is no platform for a ‗[t]hink global, act

local‘ approach. Thus, our problems are a combination of institutional

incapacities existing in the country and a lack of conceptual clarity at

the decision making level owing to inadequacy of directional policy64

.

61

186th

Report on Proposal to Constitute Environment Courts. 62

Carl F. Cranor, Toxic Torts – Science, Law and the Possibility of Justice 205

(2006). 63

Most discussions are marred by political undertones. For example, climate change

debate. 64

The National Environment Policy, 2006, it is argued, was prepared in haste and

did not bring in effect the principles enumerated in the documents enumerating


12

II. Institutional Challenges/what can be done.

Re-invention in approach, along with political will and use of science

and technology are deemed to be part of any plan that seeks to

minimize the challenge of entrenched vested interests that are found in

any governmental process. This part tries to analyse whether we can

re-conceptualise the functioning of our institutions on the basis of

certain definite principles. Such a conceptual clarity goes a long way

in rationalising institutional mechanisms.

One of the main problems that we face is the definition of the

relationship between man and nature or whether it can be defined.65

The very word ‗environment‘ denotes ‗that which surrounds us‘,

which is apart from people.66

The growth of environmental law has

been shown to be driven by immediate human self-interest, for public

health reasons. As Holder observes, ―the utilitarian rationale of the law

was to maximize nature‘s resources to ensure future exploitation.‖67

It is argued that environmental law should be informed by

ecological justice in much the same way as law in general is informed

by justice.68

Most theories of justice deal with distribution of goods

and maximization of welfare. But, whether these theories can include

man‘s relationship with the natural world is a debatable issue. There

are two broad approaches – one is to keep ethics and justice separately

(or in other words, asserting that relation with environment is a matter

of ethics and morality and not within the domain of law and justice)

and the other is to re-conceptualise justice in the light of what is

termed as ‗environmental ethics‘.

Environmental ethics, as a subject matter of philosophy, is based

on two premises – one, it questions the assumed moral superiority of

international obligation. See Furqan Ahmad, ―Legal Parameters of National

Environment Policy, 2006‖, in M. S. Bhatt et al, Problems and Prospects of

Environment Policy – Indian Perspective (2008). 65

Jane Holder, ―New Age: Rediscovering Natural Law‖, in Michael Freeman (ed.),

53 Current Legal Problems 151 (Oxford Univ. Press, NY, 2000). 66

Ibid. 67

Ibid. 68

Klaus Bosselmann, ―Ecological Justice and Law‖, in in Benjamin J. Richardson

and Stephan Wood (eds.), Environmental Law for Sustainability 129 (2006).


13

human beings to other species on the earth69

and two, it investigates

the possibility of rational arguments for assigning intrinsic value to the

natural environment and its non-human contents.70

It grew as a

reaction to the anthropocentric conception of environmental law and is

sceptical of the ways in which we implement our ‗solutions‘ for

addressing environmental issues.

Another theory which is worthy of observation here is ‗Deep

Ecology‘, according to which humans are more than just dependent on

nature – humans are nature, and attempts to dominate nature alienate

humans from themselves. It is based on ―a comprehensive eco-centric

world-view and way of life based on the equality of all forms of life

and the rejection of all forms of domination, especially human

domination of nature.‖71

Supporters of this movement advocate

holistic (deep, spiritual) and ―wholistic‖72

(integrated) individual and

societal actions with some decentralization and individual autonomy.

It stresses the direct relationship between the individual and nature,

unmediated by society, and the responsibility of the citizens for the

ecological state of the earth.73

Eco-centrism permits limited role for

anthropocentric actions, though its essential philosophy is same as

Deep Ecology. This is why Bosselmann argues that eco-centrism

neither can be imposed nor will it emerge naturally from a discoursive

democracy.74

Eco-centrism needs to be reasoned to make sense,

although making sense does not necessarily emerge from reasoning in

the context of a liberal democracy.75

This implies that an eco-centric

approach can be acknowledged only on a deeper reflection on the

impact of anthropocentric thought and need for an eco-centric

approach. .

The various approaches relating to eco-centrism attempt to

integrate the non-human world in environmental decision making. It

69

It finds contemporary relevance in the debate on release of genetically modified

organisms. 70

Devadatta Gandhi, ―The Limits and Promises of Environmental Ethics: Eco-

Socialist Thought and Anthropocentrisms Virtue‖, 31 Environs Environmental Law

and Policy Journal 35 (2007). 71

Supra note 68. 72

Supra note 62. 73

Supra note 57. 74

Supra note 68. 75

Ibid.


14

can be pursued through incorporation in ethics at the individual level

or justice at the institutional level. To become a truly ecological

concept, justice needs to reach out into the non-human world.76

These conceptual issues are significant only when there are

institutional mechanisms capable of helping individuals work with an

eco-centric dimension. However, realistically, we need to consider this

aspect in the context of what MoEF calls ‗institutional fatigue‘ – why

do we need another institution?77

The financial implications and the

probability of any new institutions adding on to the pile of virtually

non-functional and unproductive institutions in our country may make

us hesitant to even think about another institution. Moreover, in the

case of environmental governance institutions, it is paramount to

consider whether we have sufficient capacity to understand and

implement concepts of ecological justice.

Only if we acquire clarity over the concepts underlying the need

for a new institution can we hope of not pushing one more institution

into the already congested tribunal structure. As discussed earlier, a

new body may be desirable because primarily, environmental disputes

are entrenched with administrative matters. We have understood from

section I that risk evaluation is better left to administrative bodies (like

proposed NEPA or pollution control boards). The question then is

about the role of ‗risk adjudication‘. As we have understood the

difficulties in achieving effective performance through our traditional

structures (with the MoEF acting as administrator through pollution

control boards and Supreme Court as super-administrator), a new

authority is desirable.78

But such an authority may be created only

after proper discussion of the respective roles of the Ministry, NEPA

and NGT.

76

Ibid. 77

Discussion paper on NEPA at 10. 78

In the Discussion Paper on NEPA, which would be an autonomous statutory

authority, MoEF proposed three models involving: (1) MoEF (which would grant

regulatory clearances), a new National Environment Monitoring Agency (for

checking compliance and enforcement), and NGT for adjudication; (2) MoEF (for

legislation and policy), a full fledged NEPA (that subsumes pollution control boards

and has technical, regulatory and compliance responsibilities) and NGT; (3) MoEF,

NEPA (with pollution control boards reporting to MoEF and having regulatory and

compliance responsibilities), and NGT ; (4) MoEF, NEPA (with a separate pollution

control board reporting to it) and NGT.


15

What we are concerned with in this paper is with the

‗internalisation‘ of goal of ‗ecological justice‘ in administrative

adjudication, i.e., what NGT may be asked to perform. One important

step towards such internalisation may be a law that makes

sustainability the law of the land.79

This would mean combining the

functions of resource management (land use, town planning etc) and

adjudication of environmental disputes in the same body.80

In the

present discussion, that would mean empowering NEPA to not only

involve in decision-making on risk management but also on policies

that deals with allocation and distribution of resources. The outcome

of the discussion paper on NEPA is still awaited. However, it cannot

be doubted whether these moves are welcome. When we are defining

the role of NGT, it should be kept in mind that its activities would take

place alongside NEPA. Whatever be the nature and roles of the

different bodies in the structure, the whole process is collaborative.

Adjudication in the traditional sense may not give us the desired

results. Whatever be India‘s decision in this respect, any adjudication

in future on environmental matters would be based on the decisions of

pluralistic administrative agencies.81

Law‘s role in the context of increasing importance of public

administration is significant – it keeps a check on accountability and

provides an arena for disputing the role and nature of public

administration.82

Fisher characterizes the role and nature of law in this

context as a form of ‗administrative constitutionalism‘,83

in the light of

79

New Zealand has made an almost successful attempt with its Resource

Management Act. However, there are other jurisdictions, like Indiana that has carried

out successful experiments with administrative adjudication, though sustainability

has not been incorporated in any legislation. For more on Indiana experiment, see

Lori Kyle Endris & Wayne E. Penrod, ―Judicial Independence in Administrative

Adjudication: Indiana‘s Environmental Solution‖, 12 St. John‟s Journal Legal

Commentary l25 (1996). 80

Australia has a Land and Environment Court. 81

The necessity and various technical aspects of such legislation are outside the

scope of this paper. For a discussion on the role of State, see Mary Christina Wood,

―Advancing the Sovereign Trust of Government to Safeguard the Environment for

Present and Future Generations (Part I): Instilling a Fiduciary Obligation in

Governance‖, 39 Environmental Law 43 (2009). 82

Supra note 10. 83

Ibid. Fisher states that ―it reflects, however, the more traditional concepts of

constitutionalism, which is that constitutionalism is concerned with the constituting


16

the two paradigms that Fisher emphasizes on – (i) the rational-

instrumental paradigm (where public administration would be required

to strictly apply legislative will), and (ii) the deliberative-constitutive

paradigm (where public administration will be granted discretion to

address specific problem-solving situations).84

It may be a

combination of these paradigms in the NGT that could improve its

efficiency.

In this scenario, it is to be ensured that administrative adjudication

carries the same indicia of reliability and fairness found in other

judicial settings. In India, with respect to NGT, this would mean the

following:

(a) The Constitution of NGT - There are two aspects of constitution

that are relevant - nature of constitution and membership. Sitting

and retired high court and Supreme Court judges are eligible to be

its members. The nature of disputes that the NGT may be called

upon to decide may not necessarily be from similar areas in which

the members have an expertise in.85

The nature of disputes may

comprise of a variety of areas. The option here is to either create

ad-hoc tribunals for disputes (which may be location-specific) or

vest in the NGT powers to seek assistance of experts or

committees if it requires.86

This may appear to be similar to the

practice we have today of green benches seeking help from expert

committees. However, such green benches have today become

methods for administration of environmental resources. It is not

desirable to vest in our courts the duty to manage our neither

resources, as they may not have the time or resources to effectively

conduct it. Membership is another important aspect. The expert

member can be a person with administrative experience in

and limiting of government so as to ensure its principled operation where there are

divergences of opinions as to what this means and entails‖ 84

Supra note 10. 85

As pointed out in the legislative brief brought out by PRS Legislative Research,

our experience with the National Environment Appellate Authority shows that it is

difficult to find people with the prescribed qualification. The Delhi High Court had

to issue directions on the basis of a petition for appointment of a member using its

powers under Article 226 of the Constitution in Vimal Bhai v. Union of India, 158

(2009) DLT 477. The brief can be accessed at

http://www.prsindia.org/uploads/media/Green%20Tribunal/Final%20Version%20-

%20National%20Green%20Tribunal%20Bill.pdf. 86

Clause 4(2) of the NGT Bill provides for such consultation.


17

environmental matters in governmental or state level institutions.87

This would mean that the person responsible for clearances can at

some other point of time be responsible for deciding on its

validity.88

The provisions relating to appointment of judicial

members brings with it institutional memories of the ―collegium‖

debate and the post-retirement rehabilitation debate. If we want to

show that we have learnt from the mistakes of the past, we should

try and rework our processes. In the case of appointments, an

independent appointing body may be a solution.89

Subjecting the

selection process to public scrutiny can also be an option.90

(b) Powers of Review - It is better to define the nature of review

power that the NGT will be carrying out. If the nature of the power

is strongly prescribed, there is lesser scope of interference from the

appellate courts. Many jurisdictions have developed newer kinds

of review power. Australian and New Zealand environmental

courts are vested with the power of de novo review or merits

review. It decides the ultimate merits of the decisions it reviews on

evidence that is adduced anew before the court. It means that the

judge has the power to place himself in the position of the primary

decision maker and consider all relevant evidence before taking the

decisions. There is no presumption that the local authority‘s view

is correct. The scope of review is thus not limited to issues of law

but also issues of fact as the review involves both remaking and

reviewing of the earlier decision. It has been argued that, contrary

to popular perception that merits review lacks legal reasoning;

merits review has acquired sufficient ‗legal‘ content over time and

has been even considered as valuable precedents.91

It should also

be noted that merits review is not a single concept but can refer to

a range of review powers. In environmental matters, it is desirable

87

Clause 5(2)(b) of NGT Bill. 88

Indiana experience has some lessons for us. ‗Hearing officers‘ recommended

language at one stage and reviewed its meaning in another stage. Later they were

prohibited by statute from participation in investigation or enforcement activities. 89

The Judicial Appointments Commission in United Kingdom may be a model. 90

As argued in Armen Rosencranz & Geetanjoy Sahu, ―National Green Tribunal Bill

2009: Proposals for Improvement‖, 54 EPW 10 (2009). 91

Elizabeth Fisher, ―Administrative Law, Pluralism and the Legal Construction of

Merits Review in Australian Environmental Courts and Tribunals‖, in Linda Pearson,

Carol Harlow et al, Administrative Law in a Changing State (2008).


18

to have an inquisitorial rather than an adversarial proceeding, in

view of the general interest involved.

(c) Finality of order - Clause 21 states that every order of the tribunal

under the Bill would be final. If NGT is given the power of review

similar to merits review, it would be bearing full responsibility for

exercising discretion. Appeal from its decisions shall not be

allowed, unless an issue of law is involved. The position of NGT in

Indian judicial hierarchy is indeed interesting. It would be having

the assistance of a Supreme Court judge and a high court judge (in

either cases, sitting or retired). This means that at least technically,

it would have a combined competence of Supreme Court and high

court. Any adjudication by such a body will necessarily have to be

considered seriously. The aspect of finality of the order must be

seen in this context. Appellate courts (high court and Supreme

Court) have an important role to play in avoiding questions relating

to technical issues in the dispute. Even if there is an allegation of a

perverse finding of facts, appellate courts should ask NGT to

review its decision, without setting out to solve it. However, as the

constitutional powers of review are expanding, it is better to seek

other ways of internally improving the system. Programmes to

educate judges (not only on ‗science and law‘ complexities but

also on economic theories) must be taken up.

(d) Jurisdiction - Clause 14 of the Bill provides for jurisdiction of

NGT, which is triggered only when the Acts relating to

environmental protection and pollution are involved. However, as

risk assessment and evaluation may be done on the basis of a

governmental policy, the NGT could be given the power to review

national policies relating to environment. It would have the

necessary expertise and it could also act as a check on the policy as

such.

(e) Wide-range of participation - NGT must be empowered to seek

the assistance of experts and appoint committees for their opinion

on the issues before it. It should also have the power to consider

applications for representation before the tribunal (from

individuals or associations who claim that they might be directly

effected by the decision of the tribunal), so that a wide range of

opinions may be considered. The NGT Bill vests the central


19

government with powers to make rules concerning the persons

who shall be entitled to appear before the tribunal.92

(f) Informal proceedings - The nature of proceedings should

necessarily be informal, participatory and that which considers

public interest. Though precautionary principle vests burden of

proof on the project proponents, it should not be a strict mandate.

Burden of proof requirements ought to be informal.93

In a case

decided by the New Zealand court, it was held that late submission

of evidence is permissible, though it was unfair to the opposing

party. NGT can supervise alternate dispute resolution procedures

like arbitration, conciliation and mediation to provide expeditious

remedies. This would make the functioning of the tribunal more

‗user-friendly‘.94

(g) Principled approach - There are various principles of international

environmental law that have an ecological approach, like

precautionary approach, sustainable development, common

concern for mankind, common but differentiated responsibilities

and respect for biodiversity. It is important that the precautionary

principle, which is arguably the most significant principle as far as

scientific uncertainty is concerned, is treated as the prime

directional principle within the system. But, its nature and extent

ought to be translated in clear language. The principle states that

Where there are threats of serious or irreversible damage,

lack of full scientific uncertainty should not be used as a

reason for postponing measures to prevent environmental

degradation. 95

This principle is relevant for both administrative and adjudicatory

decision- making. Sustainable development is another principle

which ought to guide decision-making at all levels.

92

Clause 4(4)(a) of the NGT Bill. 93

Bret C. Birdsong, ―Adjudicating Sustainability: New Zealand‘s Environment

Court‖, 29 Ecology law Quarterly 1 (2002). 94

International Framework for Court Excellence mentions ‗user satisfaction‘ as a

hallmark of court proceeding. 95

Principle 15 of Rio Declaration of Environment and Development, 1992.


20

(h) Access to information - Promotion of understanding of

administrative adjudication so that public faith is restored. Citizens

must have easy access to information available with the courts.96

(i) Technology as tool - Science and technology should be used as

tools for adjudication, rather than the ends. This would mean that

NGT must have the capacity to innovate.

The suggestions stated above should not be treated as conclusive,

but directional. There are various issues which relate to setting up of

tribunals, including vesting in it of review power, to the exclusion of

high courts.97

This section must be understood in the light of these

issues.

III. Ethical dimensions of decision-making/What we can do.

We have seen (in section III above) how cautious we must be in

creating new institutions and in assigning roles to such institutions.

The duties to be assigned to individuals in such institutions are also

key concerns. In the same manner as judicial independence rests

ultimately on the personality of the judge, environmental decision-

maker ought to recognize the deeper values for which environmental

law stands for. It calls for an ethical introspection into any case that he

is called to decide upon.

Eric Fromm makes a profound statement when he says, ―It is

man‘s humanity that makes him so inhuman.‖98

The essence of

ecology lies in the study of togetherness of everything, because in

nature, everything is interconnected. We must accept that the function

of environmental adjudication is within a legal system where roles are

prescribed and duties and rights are recognized and the responsibility

is to judge rationally. The domain of environmental ethics urges the

decision maker to understand the deeper significance of ecological

96

Participation at the ―relevant level‖ is endorsed by the Rio Declaration and the

Convention on Access to Information, Public Participation in Decision-Making and

Access to Justice in Environmental Matters, available at www.unece.org/env/pp. 97

After the decision in L. Chandrakumar v. Union of India, JT 1997 (3) SC 589,

which was suggested to be reconsidered by a larger bench by the law commission in

its 215th

report. 98

Herbert Girardet (ed.), Surviving the Century – Facing Climate Change and Other

Global Challenges (2007).


21

decisions. But, ―is there an ethical residue in the law behind the all

concealing veil of formal legality?‖99

Though its impact on decision-making cannot be predicted,

environmental ethics can form a firm basis for decision making.100

The

constitution of the NGT consists of a Judicial Member and an Expert

Member (who may be a scientific expert or an administrative officer).

Can we outline the ethical basis of their decision-making process?

1. The Judicial Member

A sitting or retired judge of the Supreme Court or High Court is

qualified to be appointed as a Judicial Member of the NGT.101

He

would be a person who has a wealth of experience and competence on

the aspect of deciding disputes in an adversarial system, but who

would also have been conditioned by the institutional memories of the

court where he was serving. We should keep such conditioning in

mind when prescribing any role for the judges based on ethics.

Undoubtedly, adjudication ought to be rational and legitimate.

Both these conditions define our expectations from a judge. The

paradigm of a rational decision is one reached according to rules,

principles or standards. As rules have to meet certain formal

expectations of language and authority (legislation has to be clear, as

far as possible), they cannot be considered to have a major role in an

ethics discussion. What we are concerned with are principles102

and

guiding standards103

in the process. Ecological justice must be the

basis of principles and standards used in environmental cases.

The fact that adjudication is value-laden is undeniable. It is said

that, ―even elementary instances of rule interpretation and

99

Costas Douzinas, Adam Gearey, Critical Jurisprudence – The Political Philosophy

of Justice (2005). 100

As Bosselmann points out in supra note 68, ―apart from those reasons of

improving the results of decision-making there are reasons for improving the basis of

decision making.‖ 101

Clause 5(1) of the NGT Bill. 102

For Dworkin, principles are different from rules. Rules can be applied in an ―all or

nothing‖ fashion. Principles do not set out legal consequences that follow

automatically once conditions provided are met. 103

Torstein Eckhoff, ―Guiding Standards in Legal Reasoning‖, in Lord Lloyd and

Roger W. Rideout (eds.), 29 Current Legal Problems 205 (Oxford Univ. Press, NY,

1976).


22

application…depend upon an account of the point, purpose or value of

the rule.‖104

It is important that every rule and policy that deals with an

environmental issue must be read in the light of the principle of

environmental ethics. Though the nature and extent of judicial

discretion is disputed,105

some degree of judicial autonomy is

undeniable. Such judicial autonomy also must be governed by

principles of ecological justice. Thus, proper understanding of these

principles is important. This calls for a policy paper that lists out the

various aspects of these principles and a proper communication to the

judges of these principles.

2. The Expert Member

Technical experts can be involved in the process by either of the

parties or the tribunal itself.106

The chairperson is empowered to invite

any person having specialized knowledge and experience in a

particular case before the tribunal to assist in that case. Risk

assessment, in which scientific expertise come into play has only a

partial role in decision-making – it is a tool, and not the decisive

factor.107

However, it is important that issues of bias in scientific

testimony are considered with utmost seriousness. The primary

function of a scientific witness is to explain the application of matters

of scientific knowledge to a particular question which is before the

court for a decision.108

In the case of NGT, the panel itself consist of an expert member.

Thus, the opinions of experts and committees will be scrutinized by

such an expert. The possibility of bias may be reduced but the larger

question here is whether we can reduce the bias element in the reports

given by experts whose help the tribunal seeks. It is desirable to have

104

William Lucy, ―Adjudication‖, in Scotman and Shapiro (eds.), The Oxford

Handbook of Jurisprudence and Philosophy (2008). 105

Dworkin denies the existence of strong discretion (i.e discretion where there are

no applicable rules or standards). 106

As per clause 4(2) of NGT Bill. 107

Nicholas De Sadeleer, Environmental Principles – From Political Slogans to

Legal Rules, (2002). 108

Justice Peter Biscoe, ―Scientific Experts in the Land and Environment Court‖,

available at: www.nsw.com (official website of New South Wales Land and

Environment Court; visited on Nov. 5, 2009 at 5:40 pm).


23

some standards or techniques by which ‗independence‘ of such

research work can be ensured. 109

IV. Where all this may take us?/Conclusion.

Observing the ―paradoxical‖ nature of the Indian judiciary, Pratap

Bhanu Mehta observes that ―the institutional weakness of the Indian

Judiciary makes it unlikely that judicial principles will carry the due

weight of authority in society at large any time soon.‖110

It is in our

ability to refuel our institutions with conceptual clarity that the

complete delivery of justice and ultimately, the legitimacy of the

institution depend on. The rest is on performance by individuals within

the institution. This paper gives a snapshot of the modes and methods

by which we can improve our individual and institutional capabilities

within the environmental governance scenario in the context of a risk

society. The proposal to establish a NEPA and NGT provides us with

an opportunity to reorganize our thoughts on how an institution ought

to function.

The content of the concepts that form the foundation of

environmental governance ought to be based on ecological justice.

There is a need for integrating ecology in our theoretical discourses

and public institutions. Such integration should be initiated after

understanding and formulating indigenous principles of ecological

protection. Gandhi may have a lesson or two to teach. The Gandhian

approach to environment is encapsulated in ―the earth has enough

resources for our need, but not for our greed.‖ His tools of ahimsa and

satyagraha gain relevance when interpreted in the light of

environmental ethics. The effects of British colonialism towards

Indian attitudes towards environmentalism are well documented. This

shows that we had a tradition that was based on respect for ecology

and not one based on promotion of self-interest. The tenth five-year

plan recognized the fact that, ―ecological issues, unfortunately have

not been adequately incorporated into our development strategy. Much

109

There are many possible approaches like peer review and laying down standards

of general acceptance. For more see Mark R. Patterson, ―Conflicts of Interest in

Scientific Expert Testimony‖, 40 William and Mary Law Review 313 (1999). 110

Devesh Kapur and Pratap Bhanu Mehta, Public Institutions in India –

Performance and Design (2005).


24

of the problems are, on doubt attributable to lack of resources, but

possibly more is due to an inadequacy of emphasis and poor

governance.‖111

If public governance in India has to meet the challenges of

globalization which makes states more permeable,112

it has to have

stable institutions based on principles. Adjudication in this scenario

would not be mere presupposition of dispute and rational decisions,

but a participatory dialogue between the judges, lawyers and the

parties. This calls for a new theory of judgment – from ―rule of law‖ to

―rule of integrity‖.

111

Available at: www.planningcommission.gov.in (visited on Oct. 27, 2009 at 11:30

am). 112

Karl-Heinz Ladeur, Public Governance in the Age of Globalization (2004).


25

RETHINKING RESERVATION IN HIGHER EDUCATION IN

INDIA

Mehbubul Hassan Laskar

Abstract

„Reservation‟ has always been a debatable topic. The basic object of reservation (as

it is said) is the upliftment of weaker sections. There is reservation in the field of

education, employment etc. However, this paper is basically concerned with respect

to reservation in higher education. The paper critically evaluates the reservation

policy in the light of recent judicial pronouncements as well as changing needs of

time. It throws light as to how far the object of reservation has been realised, and

finally makes an appeal that it is high time to rethink over the reservation policy in

an impartial and objective manner.

I. Introduction

EDUCATION IS the most potent mechanism for the advancement of

human beings. It enlarges, enriches and improves an individual's

image of the future. It emancipates the human beings and leads to

liberation from ignorance. A man without education is no more than an

animal. It is said that in the twenty first century, 'a nation's ability to

convert knowledge into wealth and social good through the process of

innovation is going to determine its future, 'accordingly twenty first

century is termed as century of knowledge.

Educational institutions are those sacred places where the youth

acquire knowledge and wisdom; who in turn determine the future of a

nation. It is the number of educational institutions and their quality,

which to a great extent, determine the progress of a nation. The

educational institutions collectively work as the backbone of a

developed nation. Every educational institution has to maintain certain

standard of education. It is this standard which determines the level of

prosperity, welfare and security of people. It is also interlinked with

the development of nation in general.

Education is now charged with responsibility for what is referred to

as ‗human capital formation‘ or ‗human resource development‘. This

task is guided by the assumption that in every society there is a limited

pool of individuals with a high level of intelligence, spread across all

LL.M., II Semester (Two-Year Course), Indian Law Institute, New Delhi.

Rethinking Reservation in Higher Education [Vol. 1 : 1

26

sectors of society. These talented individuals have to be selected and

equipped with knowledge and skills, and promoted to run the engines

of industrial growth. Others have to be suitably educated to serve as

white-collar or blue-collar workers and supervisors. In the context of

the doctrine of economic nationalism, it is believed that the prosperity

of a nation depends on how well its system of education performs this

task.1

While educational institutions providing elementary education aim

at ensuring higher literacy rate by providing access to all, institutions

providing higher education aim at producing more and more expert

professionals and scholars who can serve the nation and its people in a

better way. Therefore, it is to be ensured that there must be quality

higher education so that the nation produces the best professionals and

scholars. Any step, big or small, compromising with the quality of

education can‘t be accepted in the long run.

The educational institutions in India, in order to maintain their

standard and reputation, take the best talents. However, it is subject to

article 29(2) of the Constitution which imposes a limitation that no

citizen shall be denied admission into any educational institution either

maintained by the state or receiving aid from the state on the grounds

only of religion, race, caste, language or any of them. It is also subject

to general mandate of non-discrimination under articles 14 and 15 of

the Constitution. One finds here the philosophy that the doors of

temple of learning will be kept open for every eligible candidate.

But the practice has not been so with many institutes of higher

learning. Special by-lanes have been made for different categories of

students to enter into the universities/colleges, bypassing the rigid

eligibility requirements and/or tests. There are reservations prescribed

by the government and there are reservations created by the

educational institutions themselves. Some have been adopted under the

constitutional umbrella, some have been made as a vote catching

1 Suma Chitnis, ―Higher Education‖, in Veena Das (ed.), The Oxford India

Companion to Sociology and Social Anthropology 1050 (Oxford University Press,

London, 2003).


27

device, and a few are introduced to appease the agitators or those who

are on ‗fast unto death‘.2

It is to be remembered that education, particularly higher education,

in India has been charged with the responsibility of providing suitably

trained man-power, and for generation as well as transfer of

knowledge required for the country to keep pace and compete with

technological advances in the developed countries of the world. Higher

education in independent India is expected to develop, within a few

decades, knowledge and capabilities of a quality and level that the

developed countries have reached through a process that has stressed

over two centuries. But the task seems to be difficult because of the

‗massification‘ of higher education, the burden of the policy of

reservation, and the inadequacy of resources to maintain and upgrade

facilities as needed.3

In such circumstances, surprisingly, the Supreme Court of India on

April 10, 2008, in its landmark judgment in Ashok Kumar Thakur v.

Union of India & others,4 upheld the government move for initiating

27% OBC quotas in all government funded institutions, including

institutions of higher education. As a result of this, the government is

now in a position to reserve upto 49.5% of the seats in all central

universities, prestigious professional schools, and elite colleges, such

as the Indian Institute of Technology (IITs), Indian Institute of

Management (IIMs), National Institute of Fashion Technology (NIFT)

and government medical colleges etc.

Now, some of the most important and vital questions that arise are:

Whether reservation in higher education will result in compromising

with the quality of education? Whether reservation in higher education

will benefit the nation in the long run? Would it not amount to a

national loss in terms of brain drain and the loss of billions of dollars if

middle class parents are forced to send their wards in foreign

universities? Would it not deprive the really meritorious and talented

from access to quality education?

2 C.M Jariwala, “Reservation in Admission to Higher Education: Development and

Directions‖, 42 JILI 205 (2000). 3 Supra note 1.

4 (2007) 4 SCC 361.


28

This paper makes an attempt to look into the intrinsic value of these

questions and try to sort out the best possible answers for the same.

The present paper critically evaluates the reservation policy; its

necessity, constitutional permissibility, impact on the standard of

education and also seeks to advance certain alternative suggestions to

do away with reservation in higher education.

II. Concept of Education and Higher Education

Education is difficult to define because the concept entails varied

aspects of knowledge, which can be passed on in various forms,

including oral, written or behavioural. It also includes various forms of

passing on information. However, education has been defined as,

―training and instruction designed to give knowledge and develop

skills.‖5

United Nations Economic Social and Cultural Organisation

(UNESCO) has given a comprehensive definition of the term ‗higher

education‘. UNESCO notes that higher education includes, ―all types

of studies, training, and training for research at the post-secondary

level, provided by universities or other educational establishments that

are approved as institutions of higher education by the competent State

Authorities.‖6

Higher education is considered throughout the world to be the key

to both individual and societal aspirations. For individuals, education

beyond the secondary level is assumed to be the way to social esteem,

better paying jobs, expanded life options, intellectual stimulation and

frequently a good time in the pursuit of any or all of the above. For

societies, higher education is assumed to be the key to technology,

productivity and other ingredients of international competitiveness and

economic growth. It is believed to be a major engine of social justice,

equal opportunity and democracy.7

5 A.S. Hornby (ed.), Oxford Advanced Learners‟ Dictionary (Oxford University

Press, London, 1990). 6 UNESCO, Convention against Discrimination in Education, adopted on Dec. 14,

1960. 7 A. Johnstone, Funding of Higher Education: International Perspective (Garland

Publishing, New York, 1993).


29

Historical Background of Reservation in India: A Brief Study

―Reservation‖, also sometimes denoted as ―affirmative action‖ or

―positive discrimination‖, it refers to a policy or program, of giving

certain preferences to certain groups (usually under-represented

groups) over the others. The policy of reservation, it must be kept in

mind, was not a post-constitutional phenomenon but had its

antecedents in the colonial times. Caste or communal quotas were in

vogue well before the Constitution came into force. Reservations in

favour of the backward classes (BCs) were introduced long before

independence in a large area, comprising the presidency areas and the

princely states in the south of the Vindhyas. Chatrapati Sahuji

Maharaj, Maharaja of Kolhapur in Maharashtra, introduced reservation

in favour of backward classes in as early as 1902 to eradicate poverty

from amongst them and to give them their due share in the state

administration. The notification of 1902 created 50% reservation in

services for backward classes/communities in the State of Kolhapur.

This notification was the first government order providing for

reservation for the welfare of depressed classes in India.8

Some major events relating to reservation policy in pre-constitutional

period followed this rule:

1882 - Hunter Commission was appointed. Mahatma Jyotirao

Phule9 made a demand of free and compulsory education for all

along with proportionate reservation/ representation in

government jobs.

1891 - The demand for reservation in government jobs was

made as early as 1891 with an agitation in the Princely State of

Travancore against the recruitment of non-natives into public

service overlooking qualified native people.

8 Marc Galanter, Who are the Other Backward Classes: An Introduction to the

Constitutional Puzzle 1812, available at:

http://marcgalanter.net/Documents/papers/scan-

nedpdf/WhoAretheOtherBackwardClasses.pdf. 9 Jotiba Govindrao Phule, also known as Mahatma Jyotirao Phule was an activist,

thinker, social reformer, writer, philosopher, theologists, scholar, editor and

revolutionary from Maharastra, India in the nineteenth century.


30

1901 - Reservations were introduced in Maharashtra in the

Princely State of Kolhapur by Shahu ji Maharaja.10

1908 - Reservations were introduced in favour of a number of

castes and communities that had little share in the

administration by the British.

1909 - Provisions for reservation were made in the

Government of India Act, 1909.

1919 - Montagu-Chelmsford Reforms11

were introduced.

Provisions for reservation were made in the Government of

India Act, 1919.

1921 - Madras Presidency introduced Communal G.O. in

which provisions for reservation were made: 44% for non-

Brahmins, 16% for Brahmins, 16% for Muslims, 16% for

Anglo-Indians/Christians and 8% for Scheduled Castes.

1935 - Indian National Congress passed a resolution called

Poona Pact12

to allocate separate electoral constituencies for

depressed classes.

1935 - Provisions for reservation were made in Government of

India Act, 1935.

1942 - B.R. Ambedkar established the All India Depressed

Classes federation to support the advancement of the scheduled

castes. He demanded reservations for the Scheduled castes in

government services.

1947 - India obtained Independence. B.R. Ambedkar was

appointed chairman of the drafting committee for Indian

Constitution. The Indian Constitution prohibits discrimination

on the grounds only of religion, race, caste, sex and place of

birth. While providing equality of opportunity for all citizens,

the Constitution contains special clauses "for the advancement

10

Rajarshi Shahu, also known as Shahu Maharaja (July 26, 1874-May 6, 1922) was

the first Maharaja of the Indian Princely State of Kolhapur during 1884-1922. 11

The Montagu-Chelmsford reforms were introduced by the British Government in

India to introduce self-governing institutions gradually to India. 12

The Poona Pact refers to an agreement between the lower caste untouchables (then

called depressed classes, now referred to as Dalits) of India led by Dr. B.R.

Ambedkar and the upper-caste Hindus of India that took place on 24 September,

1932 at Yerawada Jail in Pune, India.

http://en.wikipedia.org/wiki/Lower_caste

http://en.wikipedia.org/wiki/Dalit

http://en.wikipedia.org/wiki/B._R._Ambedkar

http://en.wikipedia.org/wiki/B._R._Ambedkar

http://en.wikipedia.org/w/index.php?title=Upper_caste&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Yerawada_Jail&action=edit&redlink=1

http://en.wikipedia.org/wiki/Pune

http://en.wikipedia.org/wiki/India


31

of any socially and educationally backward classes of citizens

or for the Scheduled Castes and the Scheduled Tribes. Separate

constituencies allocated to scheduled castes and tribes to ensure

their political representation for 10 years. (These were

subsequently extended for every 10 years through

constitutional amendments).

It is significant to note that article 15(4), which provides a

constitutional basis for reservation in education, did not form part of

the Constitution as it originally stood in 1950, although there was

provision for reservation of appointments or posts in favour of any

backward class of citizens under article 16(4). However, an equivalent

of the current article 15(4) was the subject matter of considerable

debate amongst the founding fathers of the constitution.

Constituent Assembly Debate

The fundamental rights sub-committee modified an equality clause,

framed by Mr. Munshi13

in his draft on the fundamental rights, to read

as follows:

―All citizens shall have equal opportunities of receiving education.

Nothing herein contained shall preclude the State from providing

special facilities for educationally backward sections of the

population.‖14

Moreover, B.N. Rau‘s notes on the fundamental rights were

considered and modified slightly. Based on this modification, it was

agreed by the sub-committee that the following clause be added as a

fundamental Right:

―The State shall promote with special care the educational and

economic interests of the weaker sections of society (in particular,

of the scheduled castes and aboriginal tribes), and shall protect

them from social injustice and all forms of exploitation.‖15

Prof. K.T. Shah proposed that or ―for scheduled castes or backward

tribes, for their advantage, safeguard or betterment‖ are added and

with this addition the provision would read as follows:

13

K.M. Munshi, Member of the Drafting Committee. 14

B. Shiva Rao, 2 The Framing of India‟s Constitution 125 (2005). 15

Id. at 34, 36.


32

―Nothing in this article shall prevent the state from making any

special provision for women and children or for scheduled castes

or backward tribes, for their advantage, safeguard or betterment.‖

However, B. R. Ambedkar16

was not in favour of this provision as

he took the view that such a provision would result in further seclusion

of SCs and STs resulting in a ‗separate but equal‘ treatment that was

not in their interests. In the opinion of Dr. Ambedkar:

―The object which all of us have in mind is that the general public, for

instance, none of us, I think, would like that a separate school should

be established for the scheduled castes when there is a general school

in the village open to the children of entire community. If these words

are added, it will probably give a handle for a state to say, ‗Well, we

are making special provision for the scheduled castes‘. To my mind

they can safely say so by taking shelter under the article if it is

amended in the manner the Professor wants it. I, therefore, think that it

is not a desirable amendment.‖17

Thus, it is clear that Dr. Ambedkar, the chief architect of Indian

Constitution, didn‘t consider any special provision for reservation in

respect of education for he believed that it would rather lead to further

segregation of the society in the name of castes. His belief seems to be

correct to a great extent in modern time as learned author R.L.

Chaudhari has observed, ―Regarding the caste and reservation policy,

it can be said that the privileges attached to castes have encouraged

‗casteism‟ since caste is proving very beneficial to the person

belonging to backward castes. Not only this, there is a general desire

for the enrolment in the list of scheduled castes and backward classes

even among those who are advanced and who have rejected the caste

system for other purposes. Thus, the reservation policy, instead of

removing the caste distinctions has maintained and has encouraged

social tensions which retard process of social integration. It has also

created obstacles in achieving the object of classless society in

India.‖18

While such a provision was rejected outright by the

Constituent Assembly, it was introduced in the Constitution by way of

the Constitution (First Amendment) Act, 1951 in order to nullify the

16

Chairman of the Drafting Committee. 17

Supra note 14 at 661. 18

R. L. Chaudhari, Concept of Secularism in Indian Constitution 184 (1987).


33

decision of the honourable Supreme Court in Champakam Dorairajan

v. State of Madras.19

In Champakam Dorairajan case, the Government of Madras

reserved seats in state medical and engineering colleges for different

communities in certain proportions on the basis of religion, race and

caste. This was challenged as unconstitutional. The government

defended its order on the grounds of article 46 of the Constitution,

which permits the state to promote with special care the educational

and economic interests of the weaker sections of the people and in

particular scheduled castes and scheduled tribes to secure social

justice. But the Supreme Court struck down the order as it was

violative of equality guaranteed under article 15(1) and observed that

directive principles can‘t override the guaranteed fundamental rights.

As a result, the Parliament brought an amendment20

to article 15 and

inserted clause (4).

Article 15(4) of the Constitution provides:

―Nothing in this Article or in clause (2) of Article 29 shall

prevent the state from making any special provision for the

advancement of any socially and educationally backward

classes of citizens or for the scheduled castes and scheduled

tribes.‖

Thus, the state has been given discretion to decide the nature of

special measures that are needed to protect these classes. Such

measures may range from providing exclusive housing for the above

classes to providing reservation in educational institutions. However,

article 15(4) does not grant SCs and STs and socially and

educationally backward classes the right to reservation. It is merely an

enabling provision and the state has the discretion to provide for

reservation. A writ filed by one of the members of the above classes,

praying the court to direct the state to provide for reservation cannot be

sustained.21

19

AIR 1951 SC 226. 20

The Constitution (First Amendment) Act, 1951. 21

Dr. N. M. Prasad v. Director, Sri Jayadeva Institute of Cardiology, AIR 1994

Kant. 309.


34

III. Who are Entitled to Reservation - A Confusing Question

Under article 15(4) of the Constitution, the state has been empowered

to make special provisions in respect of the following classes of

persons:

i. Scheduled Castes (SCs);

ii. Scheduled Tribes (STs); and

iii. Socially and Educationally Backward Classes (SEBCs).

But, the Constitution nowhere defines the term socially and

educationally backward classes nor lays down any specific criteria for

determining them. Moreover, the definitions provided for scheduled

castes and scheduled tribes are also vague.22

However, under articles

341 and 342, the President of India may, by public notification, specify

the castes, races or tribes, or groups within castes, race or tribes which

shall be, for the purpose of the Constitution, be deemed to be

scheduled castes or scheduled tribes, as the case may be. Later on, the

Parliament may, by law, include more groups in the list and, in fact,

the number of groups has constantly increased from time to time.

Although the term ‗socially and educationally backward class‘ has

not been defined in the Constitution, yet the Constitution provides for

the appointment of a commission to investigate the conditions of

socially and educationally backward classes within the territory of

India.23

Kalelkar Commission

Accordingly, the first Backward Classes Commission was appointed in

January, 1953 under the chairmanship of Kaka Saheb Kalelkar, with

the following terms of reference-

(a)To determine the tests by which any particular class or group of

people can be called ‗backward‘.

(b) To prepare a list of such backward communities for the whole

of India.

22

See art. 366(24) and (25). 23

Art. 340.


35

(c)To examine the difficulties of backward classes and to

recommend steps to be taken for their amelioration.

The commission formulated four criteria, viz. low position in the

traditional caste hierarchy; lack of general educational advancement;

inadequate representation in government service; and inadequate

representation in trade, commerce and industry. On the basis of these

criteria, the commission identified 2,399 backward castes in the entire

country, classifying 837 as the ―most backward‖. Five out of eleven

members of the commission were, however, opposed to linking caste

with backwardness, and recorded dissent. The chairman, Kaka

Kalelkar also opposed the acceptance of caste as the basis of

backwardness, but did not record a formal dissent.

The Kalelkar Commission report submitted on March 30, 1955

was presented in the Parliament with a memorandum on September 3,

1956. A significant observation made in the memorandum was that ―it

cannot be denied that the caste system is the greatest hindrance in the

way of our progress towards an egalitarian society, and the recognition

of the specified castes as backward may serve to maintain and even

perpetuate the existing distinctions on the basis of caste‖. However,

there was no discussion on this report in the Parliament at the time as

the tests recommended by the commission appeared to be too vague to

the government and also too wide to be of much practical value.

Hence, further investigation by the state governments has been

directed and, in the meantime, the state governments have been

authorized to give assistance to the backward classes according to the

lists prepared by the state governments themselves.24

Mandal Commission

Nearly 23 years after the submission of the report of the first backward

classes commission, presidential order under article 340 was issued in

January, 1978, setting up another backward classes‘ commission

consisting of five members with B.P. Mandal as chairman. This

commission started working with the following terms of reference: i).

to determine the criteria for defining the socially and educationally

backward classes; ii). To recommend steps for the backward classes so 24

Balaji v. State of Mysore, AIR 1963 SC 649.


36

identified; and iii). To examine the desirability of reservation of

appointments or posts for them.

Using the terms ―castes‘ and ―classes‖ interchangeably as

synonyms, the commission evolved 11 indicators or criteria for

determining social and educational backwardness and grouped them

under three broad heads- social, educational and economic, giving a

weightage of three points to each of the social indicators.25

Applying

these 11 indicators to all castes covered by the survey for a particular

state, the commission classified all castes that had a score of 50% or

more as socially and educationally backward. The percentage of such

backward classes, called other backward classes (OBCs) by the

commission, has been worked out by them on the basis of the

caste/community-wise population figures from the census records of

1931 and reported to be 43.7%-52% Hindu OBCs and 8.4% non-

Hindu OBCs. However, in view of the Supreme Court‘s judgment

holding that total reservation under articles 15(4) and 16(4) should be

below 50%; the commission recommended 27% reservation for OBCs

in all government services and recruitments to public sector

undertakings under the central and state governments, and also in

technical and professional institutions, both in the centre and the states.

This report was basically a rehash of the first backward classes

commission report rejected by the government, inasmuch as it

identified backward classes on the basis of castes. In fact, the Mandal

Commission report was based on a basic conceptual confusion. It is to

be noted that the Constitution has used the terms ―caste‖ and ―class‖

separately. Unfortunately, the commission used the terms caste and

class interchangeably as synonyms. But these are well known concepts

25

The four ‗social‘ criteria were: being considered socially backward by others;

dependence mainly on manual labour for livelihood; percentage of males and

females getting married at an age below 17 years being higher than the state average;

and, participation of females in work being less than the state average. The three

‗educational‘ criteria were: number of children in the age-group of 5-15 who never

attended the school being at least 25% above the state average; dropout rate of

students in the age-group of 5-15 at least 25% above the state average; and the

proportion of matriculates being 25% below the state average. The four ‗economic‘

criteria adopted were: average value of assets being at least 25% below the state

average; the number of families living in ‗kuchcha‘ houses being atleast 25% above

the state average; source of drinking water being beyond half a kilometer for more

than 50% of the house-holds; and, the number of house-holds having taken

consumption loans being atleast 25% above the state-average.


37

of sociology, which are different in content and connotation, and the

differences are absolutely vital. The significant differences are:

i) The membership of a caste is hereditary or by birth, which is not

so with a class.

ii) Caste is a closed group characterised by endogamy, while class

is an open group that one automatically joins when one shares

a common situation with other individuals.

iii) There is a vertical mobility in class so that a person can move

upto a higher or go down to a class considered lower in social

hierarchy. But there is no such mobility in caste.

iv) A class can generally be distinguished from another class in

terms of some economic criteria, e.g. income, occupation,

ownership of land or other means of production, place of

residence etc. While some castes may have a traditional or

hereditary occupation, they are basically not economic groups

and are usually based on religious and mythical traditions.

Had the Mandal Commission kept these conceptual differences in

view and also the fact that the government had already explicitly

rejected caste as the basis of class and suggested the adoption of ―some

criteria other than caste‖, such as linking backwardness to

―occupational communities‖ and ―the application of economic tests‖,

the mess which had been created by their identifying caste with class

would have been avoided.

Consequently, no action was taken on the Mandal Commission

report for nearly a decade. It was suddenly in 1990, the Government of

India decided to implement the recommendations of the report. There

is no evidence that the government at any level examined this report,

or there was any kind of discussion or debate on it, or any attempt to

evolve a political consensus before announcing the decision to

implement its recommendation to provide 27% reservation to OBC in

the civil posts and services under the Government of India.

After the Government of India issued certain memoranda in 1990-

91, pursuant to this report, various writ petitions were filed challenging

the constitutional validity of the Mandal Commission report and office

memoranda. These petitions were eventually heard and disposed of on

November 16, 1992 by a nine-judge bench in the celebrated case of


38

Indra Sawhney v. Union of India,26

popularly known as Mandal

Commission case. In this case, the Supreme Court has exhaustively

dealt with reservation policy and upheld the validity of the Mandal

Commission report. The court held that caste is an important criterion

for determining backwardness of a class, but it is not the sole criteria.

The court further held that reservation cannot exceed the limit of 50%

as laid down in Balaji v. State of Mysore.27

Moreover, the court

evolved the concept of ‗creamy layer‘ and held that creamy layers in

backward classes have no place in reservation system. But the Court

failed to give a precise definition of ‗creamy layer‘. It was held that

persons who are employed in higher services like IAS, IPS, and All-

India services or near about as persons having reached a higher level

of social advancement and economic status are not to be treated as

backward, but to be treated as ‗creamy layer‘. This has again led to

controversy and confusions as to what income should be treated as

base to determine ‗creamy layer‘. The Kerela High Court considered

annual income of the year preceding the year of admission as the

basis28

whereas the Punjab and Haryana High Court held that it should

be the average of last five years‘ income.29

It is said that burgling and

corruption in this branch has witnessed number of unnerved

entitlements, including those showing a particular year income, change

of profession to show lower income, false income certificate, income

only from one source and not the real total income to show reduced

income position to claim the benefits of reservation.30

IV. Reservation in Higher Education- Present Position

Recently in P.A. Inamdar v. State of Maharastra,31

the Supreme Court

abolished state quotas in private unaided professional colleges and

specifically held that the state could not impose reservations in

26

AIR 1993 SC 477. 27

AIR 1963 SC 649. 28

P. Meerakutty v. State of Kerela, AIR 1992 Ker 273. 29

Gouri Sankar v. State of A.P, AIR 1982 P&H 100. 30

See P. Sree Kumar v. State of Kerela, AIR 1998 Ker 77; R. Dinesh Kumar v.

Director of Technical Education, AIR 1985 Kar 280; Aruna v. State, AIR 1985 Kar

196. 31

AIR 2005 SC 3226.


39

unaided institutions. This led to the passing of the Constitution

(Ninety-third Amendment) Act, 2005 by the Parliament in December,

2005 inserting the following clause (5) in article 15 of the

Constitution:

―Nothing in this article or in sub-clause (g) of clause (1) of article

19 shall prevent the state from making any special provision by law,

for the advancement of socially and educationally backward classes of

citizens or for the scheduled castes or scheduled tribes in so far as such

special provisions relate to their admissions to educational institutions

including private educational institutions; whether aided or un-aided

by the state, other than the minority educational institutions referred to

in clause (1) of article 30.‖

It is to be noted that article 15(5) - does not specifically provide for

‗reservation‘ as such. It is only an enabling provision which empowers

the state to lay down by law ‗special provisions‘ in the matter of

admission to ‗educational institutions.‘ There is no particular mention

of institutions of higher learning, universities or professional

institutions as such. Educational institutions could also mean primary

and secondary schools. Also, the ‗special measures‘ could mean

several measures other than reservation.

However, taking the advantage of this constitutional amendment,

the union government brought forth legislation namely, the Central

Educational Institutions (Reservation in Admission) Act, 2006 (the

Act) under which the following scheme of reservation has been

provided:

i) SC - 15%

ii) ST - 7.5%

iii) OBC - 27%

As a result of this, about 50% of the seats have now come under

reservation in all central educational institutions including institutions

of higher learning and professional institutes like IITs, IIMs and

government medical and engineering colleges. However, under the

Act, the following institutions are excluded from the purview of

reservation- institutions in tribal areas, research institutions as

specified in the schedule to the Act, minority institutions and super-


40

specialty courses as may be specified by the Central Government.32

It

may be noted that the Supreme Court, in its various decisions, has held

that there can be no reservation in super-specialty courses.33

But the

Act does not specify the super-specialty courses and it has been left to

the discretion of the government to determine the super-specialty

courses which are to be excluded from the purview of reservation.

The validity of the Constitution (Ninety-third Amendment) Act,

2005 and the Central Educational Institutions (Reservation in

Admission) Act, 2006 was challenged in the famous case Ashok

Kumar Thakur v. Union of India.34

The Supreme Court, in its decision,

upheld the validity of the Constitutional Amendment Act as well as the

Central Act. The Court has failed to take notice of the fact that

reservation is not the only prescribed means for ensuring development

of SC/ST/OBC and that such high percentage of reservation in higher

education could not have been the dream of the founding fathers of our

Constitution. Mediocrity over meritocracy, in this twenty-first century,

will not only hamper the quality of education but will also retard the

progress of the nation as a whole. Instead of finding out other suitable

methods for the development of backward classes, simply giving

reservation is nothing but a fraud on the Constitution. In fact, after six

decades of the commencement of the Constitution, the time has come

to impartially review the entire reservation system and ensure that only

the best talents get place in educational institutions, irrespective of his

caste or class.

Apart from reservation provided to SC/ST/OBC, there are also

various other kinds of reservation which prevail in higher education in

India, such as-

i) Reservation in favour of girl students.35

ii) Reservation in favour of children of government employees.36

iii) Reservation in favour of resident of particular territories.37

iv) Reservation in favour of children of defence personnel.38

32

See Sec. 4 of the Act. 33

See Preeti Srivastava (Dr.) v. State of M.P., AIR 1999 SC 2894; AIIMS Students

Union v. AIIMS, AIR 2001 SC 3262. 34

Supra note 4. 35

Subhash v. State, AIR 1973 All 295. 36

Manju v. State, AIR 1972 HP 37. 37

Chitra v. U.O.I, AIR 1970 SC 35.


41

v) Reservation in favour of candidates from union territories or the

state of J&K.39

vi) Reservation in favour of candidates who have passed through the

qualifying examination of the same university as distinguished

from those coming from other universities;40

etc.

Although there are various kinds of reservations that have crept into

higher education, I have mainly focused on the issue of SC/ST/OBC

reservation in higher education which has created much controversy

and debate during the last three decades or so.

V. Reservation in Higher Education- A Critique

It is a well-settled principle in law that reservation to a backward class

is not a constitutional mandate. It is the prerogative of the state

concerned if it so desires, with an object of providing opportunity of

advancement in the society to certain backward classes which include

the SCs and STs, to reserve certain seats in educational institutions.41

The pivotal role of an activist Supreme Court in shaping India‘s

affirmative action policies cannot be gainsaid. With due respect to the

Apex Court, I most humbly submit that it has failed to understand the

rationale behind reservation, which was a temporary measure but it

now seems to continue till eternity. It seems that the discretion of the

state has been converted into a right of a particular undefined group of

persons. The court has accorded caste-based classifications such a

presumption of constitutionality that it has made them quite

unchallengeable. The Court has given unbridled discretion to the state

to determine the condition that is appropriate to trigger affirmative

action for the backward classes. India‘s affirmative action policy, by

its very nature, is not susceptible to any pre-fixed termination date.

The national commission that reviewed the working of the

Constitution for the past half-century recommended ―that the ultimate

aim of affirmative action or reservation should be to raise the level of

capabilities of people of the disadvantaged section and to bring them at

38

Chanchala v. State of Mysore, AIR 1971 SC 1762. 39

Shubasini v. State of Mysore, AIR 1966 Mys 40. 40

Supra note 42. 41

E.V. Chinnaiah v. State of A.P., AIR 2005 SC 162.


42

par with other sections of the society.‖42

This seems to be an aim in

perpetuity.

Even though the makers of the Constitution originally conceived it

as a transient reparatory measure to benefit the historically

discriminated backward classes, the reservation system has grown into

a sprawling enterprise with its own elaborate infra-structure,

programme and supportive constituents.43

It must be noted that mediocrity over meritocracy cuts at the roots of

justice and hurts right to equality. Any protective push or prop, by way

of reservation or classification, must withstand the test of equality

contained in article 14 of the Constitution. Any overgenerous approach

to a section of the beneficiaries, if it has the effect of destroying

another‘s right to education, more so, by pushing a mediocre over a

meritorious, belies the hopes of our founding fathers on which they

structured the great document of the Constitution and so must fall to

the ground.

Any sort of discrimination or classification, in order to withstand the

test of equality enshrined in article 14, must satisfy the following two

conditions:

I) The classification must be founded on an intelligible differentia

which distinguishes persons or things grouped together from

others left out of the group; and

II) The differentia must have a rational relation to the object sought

to be achieved.

For the purpose of reservation in higher education, the government has

broadly classified the students into the following two categories-

a) Students belonging to general category; and

b) Students belonging to SC/ST/OBC category.

42

Government of India, Report of the National Commission to Review the Working

of the Constitution (March 31, 2002); available at

http://lawmin.nic.in/ncrwc/finalreport.htm. (popularly known as Venkatachaliah

Commission Report) 43

K.G. Janpillai, ―Equality in the affirmative action‖, 27 Academy Law Review 48

(2003).


43

Arbitrary Procedure for Selecting SC/ST/OBC - No Intelligible

Differentia

I firmly contend that this classification cannot be said to be based on

any intelligible differentia. This classification might have been

justified 60 years back when social evils like ‗untouchability‘, caste

system etc. were greatly practised in India. As a result, people

belonging to these categories were prevented from mixing with

common masses and deprived of all social, economic and political

benefits. But now the situation has significantly changed. The light of

education has helped us to abandon many of the evil (non-scientific)

practices. Now, we have been able to abolish untouchability from our

society. We have different statutes to protect the interests of SCs and

STs such as the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 etc. We have National Commissions for

Scheduled Caste and Scheduled Tribe44

to look after their well being.

Laws have been enacted prohibiting the entry of non-tribals into tribal

areas without permit and separate provisions are made for the better

administration of tribal areas.45

Article 339(2) of the Constitution

empowers the centre to issue directives to any state giving directions

as to the drawing up and execution of schemes for the welfare of the

scheduled tribes. Necessary provisions are also made to meet the costs

of the scheme from the Consolidated Fund of India.46

As a result, the

problems or difficulties which they earlier faced have significantly

diminished today. Even the members, who belong to the so called

SC/ST category, never use their identity in any matter. It is only when

they have to take certain advantages or benefits; they disclose their so

called caste identity.

According to article 366(24), ―Scheduled Caste‖ means such castes,

races or tribes or parts of groups within such castes, races or tribes, as

are deemed under article 341 to be scheduled castes for the purpose of

the Constitution. According to article 366(25), ―Scheduled Tribes‖

means such tribes or tribal communities or parts of or groups within

44

These commissions have been set up as National Legal Advisory Body to advise

the government on broad policy issues and level of development of SCs and STs

respectively. 45

See schs. V and VI to the Constitution of India. 46

See art. 275(1) of the Constitution of India.


44

such tribes or tribal communities as are deemed under article 342 to be

scheduled tribes for the purpose of the Constitution.

Thus, scheduled castes or scheduled tribes are those communities

which are listed as scheduled castes or scheduled tribes in the

Constitution as per the Order of the President under article 341 and

article 342 respectively. But the Constitution does not prescribe any

procedure to determine SC/ST before including them in the list. The

lists prepared through presidential order are final. It is not open to the

court to make any addition or subtraction from the presidential

Order.47

Now the important question is that whether a community

listed as SC/ST sixty years back on the basis of certain criteria still

continue to suffer from various drawbacks and is entitled to the

benefits attached to SC/ST.

It may be worthwhile to mention that the Supreme Court in Ajay

Kumar Singh v. State of Bihar48

and in several other cases held, ―A

class/caste may be backward in present time, but it may not be so in

coming years due to their socialisation with society and job

opportunities. Once a caste is socially and educationally backward

community, it cannot remain so for all times to come. It requires

periodical review.‖

But, infact, no concrete steps have so far been taken for periodic

revision of their social and economic conditions. Now, a student

becomes an SC/ST only on the basis of a certificate issued by a

competent authority of the government. Many a time, in order to take

benefits of reservation, students manage to get fake SC/ST certificate.

This has given rise to the problems of fake candidates,49

cases of

conversions50

to SC from high castes, adoption by a SC/ST51

etc.

Moreover, many communities in India are agitating to get their

communities listed in the SC/ST list. In this regard, long before Indra

Sawhney,52

in K.C. Basanth Kumar v. State of Karnataka,53

it was

47

See B. Basavalingappa v. D. Munichinappah, AIR 1965 SC 1269; Virendra v.

Union of India, AIR 1992 All 147. 48

(1994) 4 SCC 401. 49

R.K. Shaha v. Medical College, AIR 1976 Cal 347; Ranbir Singh v. State, AIR

1978 P&H 109. 50

J. Das v. State, AIR 1981 Ker 164; Dr. Neelima v. Dean of PG Studies, AIR 1993

AP 229; R. Uma Devi v. Principal, K.M. College, AIR 1993 AP 38. 51

Khazan Singh v. U.O.I, AIR 1980 Del 60. 52

Supra note 26.


45

observed that the paradox of the system of reservation is that it has

endangered a spirit of self degeneration among the people. Nowhere

else in the world, do castes, classes or communities queue up for the

sake of gaining backward status. Nowhere else in the world is there

‗competition‘ to assert backwardness and to claim ―we are more

backward than you.‖

Even the position is same in respect of OBC. The two commissions

appointed so far failed to lay down specific criteria for determination

of OBC. In fact, both the commissions used ―caste‖ as an important

factor to determine backwardness of a class. But it is to be

remembered that the very inquiry of an individual‘s caste to determine

OBC would amount to grave breach of the Constitution and harm the

unity and integrity of the nation. Such exercise would perpetuate and

reinforce caste system in India rather than hasten its demise which our

founding fathers had never dreamt of. In this light, it is humbly

submitted with the greatest respect that the court in Indra Sawhney

case54

was wholly in error in stating that ‗caste‘ could be a factor for

identifying the backward classes.

In this regard, eminent jurist Nani Palhkivala commented thus: ―The

basic structure of the Constitution envisages a cohesive, unified and

casteless society. By breathing new life into casteism the judgment

fractures the nation and disregards the basic structure of the

Constitution. The decision would revitalize casteism, cleave the nation

into two- forward and backward, and open up new vistas for

intermecuie conflicts and fissiparous forces, and make backwardness a

vested interest. It will undo whatever has been achieved since

independence towards creating a unified, integrated nation. The

majority judgment will revive casteism which the Constitution

empathetically intended to end.‖55

In this light, it is most humbly submitted that the judgment in Indra

Sawhney, to the extent it regards caste as an important factor to

determine OBC, ought to be reconsidered and the Court must lay down

specific guidelines to determine OBC so as to prevent any sort of

arbitrariness in this regard.

53

AIR 1985 SC 1495. 54

Supra note 5. 55

Nani Palkhivala, We the Nations: The Lost Decades 179 (1994).


46

Thus, in the absence of specific criteria or guidelines, the

determination of SC/ST/OBC cannot be justified. It is confusing in

nature. It may be done arbitrarily and based on extraneous and

irrelevant grounds. Hence, the classification of students as general and

SC/ST/OBC is not based on any intelligible differentia so as to

withstand the test of article 14 of the Constitution.

No Reasonable Nexus with the Object Sought to be Achieved

The basic policy of reservation is to off-set the inequality and removes

the manifest imbalance, the victims of which for bygone generations

lag far behind and demand equality by special preferences and

strategies. Thus, the main ground on which reservation is sought to be

justified in India is that the people belonging to the class- SC/ST/OBC

were historically oppressed and denied respect and equal opportunity

in Indian society and were thus under-represented in the nation-

building process. Hence, reservation is a way to bring them at par with

the general class of the society. Thus, the object sought to be achieved

by way of reservation is the overall upliftment of SC/ST/OBC. It is to

be remembered that reservation is not an end in itself; it is one of the

means to achieve equality. The policy of reservation adopted to

achieve that end must, therefore, be consistent with the objective in

view.

But, in the present time, it seems that the policy of reservation is

being continued without any object. Even after sixty years of India‘s

independence, no concrete steps have so far been taken to determine as

to how far the object of reservation has been achieved. The specific

requirement of periodic review as stated in section 11 of the National

Commission for Backward Classes Act,1993 and in para 847 of Indra

Sawhney case has not been followed, and as a consequence, the

prevailing lists have swelled to include several thousand ―castes‖

which are treated as ‗backward classes‘, thereby satisfying the political

mandate.

Thus, it is clear that the reservation policy has no reasonable nexus

with the object sought to be achieved. It has become an important tool

of politics in the country. The inclusion of any class/caste has been

used as a vote capturing device. There are cases when the party in


47

power, on the eve of central or state election, included large number of

classes in the list of OBC. It is time that the pressure tactics be avoided

otherwise the caste/class strife will put an eclipse on the philosophy of

common brotherhood and the egalitarian society provided in the

Constitution of India.56

The judiciary, being the guardian of the

Constitution, must adopt a beneficial and careful approach in this

regard.

Any Sort of Reservation in Higher Education is against the

International Principles

Under article 51 of the Constitution, the Union of India has a duty to

take steps to ―foster respect for international law and treaty

obligations.‖ In other words, the state has a responsibility, so far as

possible, to give effect to the provisions of international treaties.

According to article 26 of UDHR,57

―Everyone has a right to

education. Education shall be free, at least in the elementary and

fundamental stages. Elementary education shall be compulsory.

Technical and professional education shall be made generally available

and higher education shall be equally accessible to all on the basis of

merit.‖

According to article 4 of the UNESCO Convention Against

Discrimination in Education,58

―Admission to higher education should

be based on merit, capacity, efforts, perseverance and devotion showed

by those seeking to access it, and can take place in a life long scheme,

at any time with due recognition of the previously acquired skills.‖

Thus, the Convention proclaims that access to higher education should

be based on merit and no discrimination shall be allowed on the

grounds of race, gender, language, or religion, or economic, social or

cultural distinction.

According to article 13(2)(b) of International Convention on Social,

Economic and Cultural Rights (ICESCR),59

which deals with

secondary education, ―Secondary education shall be made generally

56

Supra note 2. 57

The Universal Declaration of Human Rights adopted in 1948. 58

Adopted in 1960. 59

Adopted in 1966.


48

available and accessible to all by every appropriate means, and in

particular by the progressive introduction of free education.‖ The

phrase ―generally available‖ signifies that secondary education is not

dependent on a student‘s apparent capacity or ability and it must be

made accessible to all.

Article 13(2)(c) of ICESCR deals with the ―right to higher

education.‖ It specifically states, ―higher education shall be made

equally accessible to all on the basis of capacity.‖ Thus, according to

article 13(2)(c), higher education is not to be ―generally available‖, but

only available on the basis of capacity i.e. merit.

Thus, it is clear that the international community has recognized that

there shall be no compromise with merit and higher education shall be

accessible to all only and only on the basis of merit. India, having

ratified these conventions, has a positive moral obligation to follow

this international norm. But, alas! India is still continuing, rather

perpetuating the age old reservation policy without any fixed object. It

is time to rethink over the policy.

Reservation Hampers Quality Education

It is also a fact that reservation of any kind hampers the quality of

higher education. Through reservation, we may simply create a pass

for the reserved category students to enter institutes of higher learning

and professional excellence. But it is really very shocking that the

majority of such students fail to cope up with the standard of education

required at such level. This becomes clear from the fact that in the last

ten years or so, in the courses like IITs etc, more than 90%

SC/ST/OBC students are either dropped out or were declared failed in

the first year or in the second year. In many cases, they simply failed

to acquire the benchmark required to sit in the examination.60

Thus,

the reservation made by the central government/state government has

become redundant as these students fail to acquire the minimum

benchmark. As a result of this, the reserved seats in higher courses are

lying vacant. Had these seats been given to really meritorious eligible

candidates, we would have got bundles of expert professionals who

60

See Avinash Singh Bagri & Othrs. v. Registrar, IIT Delhi & Anr., 2009(11)

SCALE 535.


49

could be the real treasure of our country. This also clearly shows the

violation of right to education of the students belonging to general

category who, in spite of their merit and eligibility, fail to get seats in

the institutes of higher education only because of the fact that they

belong to general category.

Two Major Demerits of Reservation

Apart from various other demerits, I would like to mention the two

most significant demerits of the reservation policy:

i) Reservation hampers the intellectual development of backward

classes: The general mode of selection observed in

colleges/universities is either the marks scored by the students in

the last examination or their marks in an entrance examination

conducted by the colleges/universities. But, in keeping with the

reservation policy, the colleges/universities demarcate different

qualification levels or ―cut-off marks.‖ The backward classes

have lower cut-off marks as compared to general category

students. But the reduction of cut-off marks only hampers the

development of backward classes themselves. It reduces the

competitive spirit in them. By doing it, the government seems to

tell them that they can just sit back and score just the required

minimum, because for them, caste and not marks, is the ticket to

enter the colleges/universities of their choice. In this regard,

Professor Paramananda Singh says, ―What is needed today is that

the state should divert more and more of its resources to increase

the overall competitiveness of the beneficiaries rather than stick

to ‗reservation‘ as the only best means to promote equality.‖61

Reservation may have been theoretically aiming at equality, but

in practice, it is far from the very idea of equality. Rather, it

enhances inequality among the different classes in the society

and is against the philosophy of ―common brotherhood.‖

ii) Reservation hampers progress: Reservation was undertaken with

an additional goal in mind- that of trying to aid progress of

society by pulling up even the weakest sections of the society.

61

Paramananda Singh, ―Promoting equality through reservations: A critique of

judicial policy and political practice‖, 20 DLR 46 (1998).


50

But this seems to be a myth. One obvious reason is that even

after so many years of its implementation, there is hardly any

significant progress. This may be because most of the really

backward people are not included in the list of ―backward

classes‖ as prepared by the competent authority and the fairly

forward people hang on to the tag of backward so as to avail

various facilities. Such faulty procedure is an obstacle in the

uniform progress of the nation.

Another important reason as to why reservation hampers progress is

that because of reservation, the really meritorious students lose out in

the rat race. This not only hampers progress but also procures great

loss for the nation. Infact, really meritorious and talented students are

the assets of the nation who must be given all types of support to

blossom fully and serve the nation. But the reservation policy simply

kicks 50% of the really meritorious students belonging to general

category out of the race. This fuels the problem of brain-drain as the

really meritorious students go abroad simply because of the lack of

seats for their caste or community in the institutes of higher learning.

In fact, the reservation policy only seems attractive to those who

support it but it is of no use to millions of people who are living a very

pathetic life in India, irrespective of caste.

VI. Conclusion and Suggestions

The primary imperative of articles 14 and 15 is equal opportunity for

all across the nation to attain excellence. Excellence cannot be allowed

to be compromised by any other considerations because that would be

detrimental to national interest. Therefore, to sympathize whimsically

with the weaker sections by selecting sub-standard candidates, and that

also in the higher level of education, is to punish the society as a whole

by denying the prospect of excellence.

There is no denying the fact that there exist weaker or backward

classes in the society which need special care and attention for their

development. In fact, uniform development of society is not possible

without the development of backward classes. But reservation is not

the only means for the development of backward classes and that also

in the higher level of education which aims at quality education. But,


51

in the modern time, the determination of the backward class has itself

become a matter of huge controversy. Therefore, first of all, proper

procedure and criteria should be laid down to determine the real

backward classes of the society who need special attention. Caste

should not be considered as relevant criteria for determination of

backwardness as it is against the constitutional principle. Rather

poverty, geographical location, educational level and occupation may

be considered as relevant criteria. A statute in this regard is the need of

the time to avoid arbitrariness and confusion in the determination of

backward classes. The Law Commission of India, the National

Commission for Scheduled Caste and Scheduled Tribe and the

National Commission for Backward Classes can successfully help in

framing a statute in this regard.

Permissible reservation at the lowest or primary rung is a step in the

direction of assimilating the lesser fortunate or backward classes in the

mainstream of society by bringing them to the level of others which

they cannot achieve unless protectively pushed. Once that is done the

protection needs to be withdrawn in the own interests of ‗the

protected‘ so that they develop strength and feel confident of stepping

on higher rungs on their own legs shedding the crutches. Pushing the

protection of reservation beyond the primary level only keep the

cripples, crippled forever.62

Thus, the primary duty of the state is to provide quality primary and

secondary education to all children, especially the children belonging

to backward classes. A recent World Bank study has revealed the poor

condition of India‘s primary and secondary education.63

The report

brings to light the poor gross enrolment rate (GER) of students at the

secondary level. The report reveals grim overall GERs for Bihar

(21%), Rajasthan (43%), Chhattisgarh (44%), Uttar Pradesh (49%),

and even Haryana and Punjab, which have only about 50% GERs at

lower secondary level and lesser enrolments of 32% and 28%

respectively at upper secondary level. The report further reveals that

only 65% of the villages have schools within 5 km radius as prescribed

by the government. In 35% villages, secondary school students have to

commute for more than one hour to attend school. At upper secondary

62

D.D. Basu, 2 Commentary on the Constitution of India 1827 (2007). 63

Reported in The Tribune 1, October 8, 2009.


52

level, only 635 villages have schools in the listed 10 km radius. Even

in high-income states like Haryana, Punjab and Himachal Pradesh, 19,

17 and 5 percent villages, respectively, do not have accessible

secondary schools.

The report clearly reveals the poor and deplorable state of India‘s

primary and secondary education. Thus, what is needed is not

reservation in higher education but accessible and quality primary and

secondary education so that the students belonging to backward

classes can also successfully compete with other students and thereby

further enhance their intellectual capacity.

Moreover, it is to be remembered that backwardness is also closely

related to poor economic condition. Hence, the right approach would

be to provide scholarships and other financial assistance at the higher

level of education to the meritorious students belonging to backward

classes rather than forcing reservation.

In order to make the students belonging to backward classes

―natural competitors‖, coaching schools and institutes should be

established and free coaching should be provided to them. It is high

time that the society should stop underestimating the calibre and talent

of the students belonging to backward classes by providing further

reservation.

In fact, reservation can never be a substitute for the upliftment of

the weaker sections on the social and economic plane. Reservation was

meaningful at the commencement of the Constitution as a temporary

measure, at a time when the state was required and expected to

promote with special care, the educational and economic interests of

the weaker sections of the people, and in particular the scheduled

castes and scheduled tribes. The Constitution did not envisage non-

implementation of the directive principles of the policy set out in

articles 41, 45 and 46 even after sixty years and continuing reservation

indefinitely. Sixty years is too long a period to continue reservation

without undertaking promotion of the educational and economic

interests of the weaker sections in a time bound manner. Neglecting

educational and economic interests of the backward classes and

continuing to provide only reservation is against the tenor of the


53

Constitution and the judiciary is not powerless to correct this serious

lapse on the part of the state.64

It is really very appreciable and welcome step that the judiciary has

frowned upon any type of reservation in super-specialty courses. In

Mohan Bir Singh Chawla v. Punjab University,65

the Supreme Court

said that at higher levels of education it would be dangerous to

depreciate merit and excellence. The Court thus declared, ―The higher

you go in any discipline, lesser should be the reservation of whatever

kind.‖66

It is high time that the judiciary should move a step further

and say ―no reservation‖ in higher education, which is so important for

the greater progress of the nation. Let us allow the right to equal

opportunity in education to bloom for the best eligible students. Let us

make the peoples‘ right to education and standard of education vibrant,

striving toward ―excellence‖, so that the nation constantly rises to the

highest levels of endeavor and achievement.

Before concluding, I remember the words of our late Prime Minister

Pt. Jawaharlal Nehru when he said about 60 years back: ―I am grieved

to learn of how far this business of reservation has gone based on

communal consideration…. This way lies not folly, but disaster. Let us

help the backward groups by all means, but never at the cost of

efficiency.‖67

It is high time that we should rethink over the reservation policy,

impartially and objectively, keeping in mind the changing global

scenario and the role that India should play in this competitive global

arena. Let us move towards the right direction…

64

P.P. Rao, ―Right to Equality and Reservation Policy‖, 42 JILI page no. 2000. 65

AIR 1997 SC 788. 66

See also, Preeti Sagar Srivastava (Dr.) v. State of M.P, AIR 1999 SC 2894. 67

Supra note 62.

Atrocities on Dalits [Vol. 1 : 1

54

ATROCITIES ON DALITS- A HUMAN RIGHTS

PERSPECTIVE

Ajay

Abstract

Dalits have been considered, for centuries, as lesser human beings and subjected to

caste based atrocities for various historical, social and economic reasons. The caste

based discrimination sanctified by the Hindu religious scriptures, is still haunting a

large segment of Indian society, i.e. dalits. Despite the formal protections under the

laws, dalits are still meted out with atrocities which are striking at their very basic

rights. The vested upper caste interests and the desire to maintain the monopoly over

the community resources is involved in maintaining the caste based discrimination

and atrocities. Further the state complicity as a whole has turned the Prevention of

Atrocities Act nugatory and ineffective thus resulting in perpetuation of atrocities.

The caste based discrimination is no less graver than the discrimination faced by the

blacks on racial grounds of race and thus needs to be fought at the international

level. But this assertion is getting receiving vehement opposition by the vested

interest with the contention that caste is not similar to race and thus do not fall

within the purview of Convention on Elimination of Racial Discrimination. The

attention must be given to the gravity of the caste-descent based discrimination and

the growing human rights violations of the scheduled castes rather than

concentrating on the nomenclature of the form of discrimination.

I. Introduction

IN THE world‘s largest democracy the caste based discrimination has,

for centuries, remained a haunting experience for a large populace of

the society. The members of this large segment known as

―Untouchables‖ were considered as lesser human beings and therefore

considered ‗unfit‘ for any human rights and were in fact denied even

the right to be human. They were believed to be the recipient of severe

social disabilities, slavery and indignities. The constitutional framers

of our Constitution were well aware of the discrimination faced by the

scheduled castes so they provided fundamental rights coupled with

positive discrimination to eliminate all kinds of discrimination. In

addition to that protective legislations have been enacted to eradicate

social prejudices and atrocities against dalits. Despite the

constitutional protections and benefits in form of equal rights and

LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.


55

affirmative action and the protective laws enacted for the protection

and upliftment of dalits, the caste based discrimination is still

persisting and the dalits are frequently being made targets of physical

and sexual violence. The foolproof recipe of equality has done little to

mitigate the age old oppression and exclusion for over 167 million

dalits.1 Atrocities are day to day phenomena and dalits are facing

indignities and discrimination due to various historical, social and

economic reasons.

This article seeks to analyze the phenomena of increasing and

perpetuating atrocities on the dalits which result in gross violation of

their human rights and to identify the reasons for perpetuating

atrocities despite the safeguards provided under the law. It further

seeks to analyse the law relating to atrocities and that whether it has

become successful in preventing atrocities, and if not, then what are

the reasons for such failure. Part II of the article makes an analysis of

the historical evolution of the caste based discrimination and how the

caste system resulted into caste prejudices further resulting in caste

disabilities and how the Hindu scriptures sanctified the caste based

discrimination. Part III focuses on the legal safeguards provided to the

scheduled caste under the Constitution of India and protective

legislations enacted for the protection and upliftment of dalits

especially the anti-atrocities law. Part IV deals with the phenomenon

of perpetuating atrocities despite the formal protections under the law

and the end result in form of human rights violations of dalits. It

further identifies the causes of the atrocities and also analyses the role

of the state, especially the police, in perpetuation of atrocities and the

attitude of the judiciary towards the causes of dalits and how the caste

affiliations and prejudices are enforced through state machinery. This

part further explores the recent trend to deal with the caste based

discrimination at the international level and the domestic opposition to

the same; the claims why caste based discrimination should not be

addressed in the international fora and whether such claim is having

any rationale or not. Part V concludes by pointing out to the factors

liable for perpetuating atrocities and by suggesting measures which

1See Smita Narula, ―Equal by Law Unequal by Caste: The ‗Untouchable‘ Condition

in Critical Race Perspective‖, 26 Wis. Int‟l. L. J. 255 (2008).


56

could be taken to prevent caste atrocities and thus ensuring human

rights to this large segment of the society.

II. Caste and Caste Prejudices

The Caste System

One of the exclusive features of Indian society is the institution of

caste, perhaps the longest surviving social hierarchy in the world.

Caste is a defining feature of Hinduism and situates people in complex

ordering of social groups on the basis of ritual purity.2 Dr. Ketkar says

that the caste owes its origin to the Spanish word ―Casta‖, which

means breed, race, strain or a complex of hereditary qualities.3 Dr.

Ketkar defines Caste as ―a social group having two characteristics: (i)

Membership is confined to those who are born of members and

includes all persons so born; (ii) the members are forbidden by an

inexorable social law to marry outside the group.‖4

Dr. Ambedkar defines Caste as ―[A]n artificial chopping of the

population into fixed and definite units, each one prevented from

fusing into another through the custom of endogamy. Thus the

conclusion is inevitable that endogamy is the only characteristic that is

peculiar to caste.‖5 Thus endogamy and ban on inter-dining are the

main characteristics of caste system. The genesis of caste can be traced

back to „Rig Vedic‟ period. In the early Rig Vedic period the society

was divided into four „Varnas‟, i.e. Brahmin, Kshatriya, Vaishya and

Shudra. The Rig Veda provided basis for this Varna nomenclatures.6

The first three categories were considered as twice born and called

2 Smita Narula, Broken People: Caste Violence against India‟s “Untouchables” 24

(Human Rights Watch, NY, 1999). 3 Joseph Benjamin, ―Caste-Class Situation in India and Human Rights‖, 54 Social

Action 48 (2004). 4 Dr. B. R. Ambedkar, ―Castes in India: Their Mechanism, Genesis and

Development‖, XLI Indian Antiquary 1, 2 (1917), available at:

http://www.ambedkar.org/ambcd/01.Caste%20in%20India.htm. 5 Id. at 4.

6 The Purusha Sukta in Rig Veda says, ‗the Brahmin came from the mouth, the

Kshatriya from the arms, the Vaishya from the thigh and the Shudra from the feet of

the Brahma‘. The constitution of society prescribed by the Purusha Sukta is known

as ‗Chaturvarnya‟, cited in Infra note 11 at 5.


57

‗Dwija‟. The last category, i.e. Shudra was considered as ‗lowest

born‘.

Manu Smriti enshrined that Brahma produced from his mouth,

arms, thighs and feet, the Brahmin, the Kshatriya, the Vaishya and the

Shudra.7 For the protection of this whole creation Brahma assigned

separate activities for those born from mouth, arms, thighs and feet.8

There was also a fifth category of persons who was considered outside

the Varna system. They had to do menial jobs like scavenging and

burial of dead animals, tanning, removing of caracass etc. This

category was of „Untouchables‟ who were termed as „Chandalas‟ and

„Pulkasas‟. Manu observed that the dwellings of the „Chandalas‟ shall

be outside the village, their dress are the garments of dead and their

food given to them in broken dish.9 So there was a positive injunction

against their incorporation in the Hindu Society.10

The Dharamsutras laid down the duties of each of the four Varnas

and such duties were based on the notion of ritual purity. All forms of

disabilities were imposed on the „lowest born‟ and they were deprived

of religious and legal rights. Crimes committed by Shudra against the

Brahmins and others were punished severely. On the other hand the

crimes committed against the Shudra were punished lightly.11

Gradually this social division was multiplied into various castes

and sub-castes. In the later Vedic period the division of society into

four Varnas became strict. Caste disabilities were enforced strictly and

secular punishments were imposed on those who deviated from the

prescribed social conduct.12

There were no chances of mobility within

7 Patrick Olivelle, Manu‟s Code of Law 388 (Oxford Univ. Press, New Delhi, 2006);

Manu Smriti, chapter I, verse 31. 8 Id., at 397, chapter I, verse 87-91: To Brahmins, Brahma assigned reciting and

teaching of Vedas, offering of sacrifices and receiving and giving gift; to Kshatriya,

he allotted protecting the subjects, giving gifts, offering sacrifices, reciting the Vedas

and avoiding attachments to sensory objects; to the Vaishya, looking after animals,

giving gifts, offering sacrifices, reciting the Vedas, trade, money lending and

agriculture, and to the Shudra, the lord allotted a single activity, the ungrudging

service of the other three Varnas. These four classes have to work within their own

spheres of work assigned to them. 9 P.V. Kane, History of Dharamashastras 163 (1974) as quoted in Infra note 11.

10 See D. Raja, ―Dalit Question and Caste-Class Issues‖, 45(18) Mainstream 11

(2007). 11

T.R. Naval, Law of Prevention of Atrocities on the Scheduled Castes and

Scheduled Tribes 6 (Concept Publishing, New Delhi, 2001). 12

Id. at 5.


58

castes inter se. Thus, the untouchables faced complete marginalisation,

subjected to severe discrimination, did the most menial and degrading

tasks and had no right to change their position in the society.13

Caste Disabilities and its Consequences

The caste system had resulted into many disabilities which further

resulted into many social consequences. The ban on inter-dining and

the rule of endogamy made the caste system rigid and there were no

possibilities of a shudra to become a priest. The shudras were denied

the sacred twice-born ceremony (Upnayana Samskara); they were not

allowed to enter into temples. They were not allowed to acquire

knowledge and it was considered a sin and a crime to give them

education. They could not even hear and recite the verses and mantras

of the religious texts.14

The denial of education resulted in illiteracy,

which in turn resulted in educational backwardness. The shudras were

not allowed to accompany the dwija and even a single look of the

untouchable by the Brahmin was considered polluting the Brahmin,

and the Brahmin has to purify himself after having a look of the sun.15

So the untouchables were ex-communicated from the rest of the

society. This ex-communication and social ostracism promoted the

practice of untouchability, which resulted in their social backwardness.

Shudras were not allowed to own property and they were not to

hold a position under the State.16

The denial of property to the dalits

made them poor and dependent on others thus resulted in their

economic backwardness. A shudra must not deviate from his path, i.e.

the ungrudging service of the twice born.17

Such notion of ungrudging

service sanctified the forced and bonded labour of shudras. Thus under

13

See National Human Rights Commission, Report on Prevention of Atrocities on

Scheduled Castes 3 (2004). 14

Gautam Sutra stresses that if any shudra hears any Veda Mantra, the molten glass

or lead should be poured in his ears, and if he recites any verse or words of the Veda,

his tongue should be cut down and if he remembers the Veda Mantras, his body

should be cut into pieces by an axe; cited in Supra note 11 at 7. 15

Ibid. Parashar Smriti, chapter VI, verse: 24. 16

Manu Smriti, chapter-X, verse 129 provides that even a capable shudra must not

accumulate wealth; for when a shudra become wealthy, he harasses the Brahmin; cf.

supra note 7 at 835. 17

Id., chapter-I, verse 71 provides that a shudra who deviates from the law proper to

him will become a Cailasake Ghost.


59

the Hindu social order the shudras and untouchables were considered

as highly defiling and unworthy of any rights but only recipient of

severe disabilities.18

Their overall backwardness made them vulnerable

to humiliations, slavery, indignities and atrocities. The untouchability

so faced by the untouchables was no lesser grave than the slavery

experienced by the ‗blacks‟ and the only difference between the two

was that the latter was not sanctioned by the religious scriptures, but

the former was an integral part of the Hindu religion.19

The only idea

behind this graded inequality was to establish upper caste hegemony in

the society as the caste based discrimination and the caste superiority

was to maintain such hegemony and was backbone of the upper caste

domination.

III. Caste Atrocities and the Law

Our Constitutional Framers of our Constitution were well aware of the

discrimination meted out by the dalits due to the institutionalised caste

system in the Indian society. Dr. B.R. Ambedkar analysed the

dichotomy of the caste system and existing inequalities in the socio

economic sphere of the Indian society. He observed that:

“On the social plane we have an India based on the

principles of graded inequality, which means elevation of

some and degradation of others. On the economic plane we

have a society in which there are some who have immense

wealth as against many who live in abject poverty.”20

Dr. Ambedkar was of the view that the vested interests of the caste

Hindus i.e. desired monopoly over the social, economic, cultural and

political resources of the community are involved in the observation of

the untouchability. The end custom of untouchability was going on for

centuries basically because the exploited untouchables did not oppose

18

K.I. Vibhute, ―Right to Live with Human Dignity of Scheduled Castes and Tribes:

Legislative Spirit and Social Response- Some Reflections‖, 44 JILI 469 (2002). 19

Shailendra Kharat, ―Dalits and Human Rights‖, 9 (2) Journal of Institute of

Human Rights 56-57 (2006). 20



60

it.21

He maintained that if freedom in India to have any substance, the

whole caste structure had to be annihilated.22

Constitution of India and Dalit Rights

The Constitutional framers of the Constitution, in order to establish an

egalitarian social order devoid of caste system, not only tried to

reconstruct the hitherto caste-ridden hierarchical social order but also

ensure the ex-untouchables, the unfortunate victims of the caste

system, the right to equality and dignity.23

The Preamble of the Constitution proclaimed to secure to the

people of India ―social, economic and political justice, equality of

status and of opportunity and to promote fraternity assuring the

dignity of the individual‖, thus aiming at anti-caste-discrimination

aspirations. Part III of the Constitution of India provides fundamental

rights to the citizens of India to assure equality, freedom and a

dignified life. Article 14 of the Constitution of India provides for the

right to equality before law and equal protection of laws to dalits

keeping in mind the graded inequality prevalent in the Indian society.

Unlike the U.S. Constitution, the Indian Constitution provides equality

before law and equal protection of laws so that all people are

considered equal in the eyes of law and they are equally protected by

the laws of the country. Article 15 prohibits, inter alia, discrimination

on the basis of caste and allows preferences to be made in favour of

scheduled castes.24

The Constitution prevents not only future

injustices, it also gives dalits certain benefits under the law to redress

past injustices in form of positive discrimination enables the state to

make special laws and policies in favour of the scheduled castes for

21


C. Hargopal, ―Rights of Dalits: Law and Reality‖, 1 Journal of the NHRC 136

(2002). 23


Constitution of India, art. 15(4) provides: ―Nothing in this article or in clause (2)

of article 29 shall prevent the State from making any special provision for the

advancement of any socially and educationally backward classes of citizens or for

the Scheduled Castes and Scheduled Tribes.‖


61

compensating them for the past prejudices meted out by them from

centuries.25

Article 17 abolishes the age old practice of untouchability due to

which the dalits had to face many humiliations and denial of rights.

Untouchability has been made an offence punishable by law.26

Justice

Ramaswamy in State of Karnataka v. Appu Balu Ingale27

stressed that

the Constitution and its protection bore “behind its monstrous

untouchability relentlessly practiced for centuries dehumanizing the

dalits”. In a continuing effort to ensure that the aims of article 17 are

fully realized, Parliament came out with the Untouchability (Offences)

Act, 1955.28

The Act confers civil rights and provide for redressal of

the violations of such rights arising out of untouchability.

Keeping in mind the impact of religion on the lives of the people in

this country and specially the impact of religion on the practice of

untouchability, the right to religion has been subjected to other

provisions of Part III that seems to suggest that the practice of

untouchability cannot be justified in the name of religion. So the

secularist principle underlying the Constitution appears to tear down

the seemingly ―impregnable walls of separation‖ among Hindus.29

To break the notion of ungrudging service of the upper castes by

the lower castes, article 23 the Constitution prohibits bonded labour so

that their exploitation by the upper caste people can be eliminated. To

provide the scheduled castes political representation, the constitution

provides reservations in the elections to the Union Parliament, State

Legislative Assemblies, Panchayats and Municipal Committees.30

The

dalits are further provided with reservations in Union and State

services to uplift the dalits economically. All these aim to help remove

25

Willian J. Eisenman, ―Eliminating Discriminatory Traditions against Dalits: The

Local Need for International Capacity-Building of the Indian Criminal System‖, 17

Emory Int‟l L. Rev. 146 (2003). 26

Id., art. 35 of the Constitution of India enables the Parliament with exclusive

power to make law prescribing punishments for the acts made punishable under Part

III. Parliament has enacted Untouchability (Offences) Act, 1955, for prescribing

punishment for the offence of ‗Untouchability‘. 27

AIR 1993 SC 1126. 28

Renamed as the Protection of Civil Rights Act in 1976. 29

See Supra note 25. 30

Supra note 24. arts. 330, 332, 243(D), 343(T) respectively.


62

poverty and backwardness that exist, so that dalits can be provided

equal status in the society.

In addition to the constitutional safeguards, other laws have been

enacted to nullify sanctions of any customary laws enforcing

degrading and humiliating practices. The Employment of Manual

Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993

eliminates the most degrading practice of manual scavenging of

human excreta by members of scheduled castes. But the irony is that

though long outlawed, the practice of manual scavenging continues in

most states. In 2002-03 the Union Ministry for Social Justice and

Empowerment admitted the existence of 6.76 lakh (676,000) manual

scavengers in India and the presence of 92 lakh (9,200,000) dry

latrines, spread across 21 states and union territories. According to

unofficial estimates, the number of manual scavengers in India may be

as high as 1.3 million.31

The Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act, 1989

Various means to improve the socio-economic conditions of dalits

remained unsuccessful and they remain vulnerable to caste based

atrocities. The Protection of Civil Rights Act, 1955 was never accepted

by the upper castes as after passing of this Act, dalits were being

denied number of civil rights and subjected to atrocities for various

historical, social and economic reasons.32

The increasing incidents of

atrocities hindered the effective implementation of the Protection of

Civil Rights Act.

Rajendra Kumari Bajpai, while moving the Scheduled Castes and

Scheduled Tribes Bill in the Parliament admitted the fact of increasing

incidents of atrocities on dalit is a sequel of preferential treatment

given to them by the State. She said that:

“When they assert their rights and resist practices of

untouchability against them or demand statutory minimum

31

Human Rights Watch, Hidden Apartheid: Caste Discrimination against India's

Untouchables 83 (2007), available at:

http://www.chrgj.org/docs/IndiaCERDShadowReport.pdf (visited on Oct. 28, 2009). 32

See Supra note 11 at 24.


63

wages or refused to do any bonded or forced labour, the

vested interest tries to cow them and terrorize them. When

the scheduled castes and scheduled tribes try to preserve

their self-respect or honour of their women, they become

irritants for the dominant and the mighty…”33

The dalits were subjected to atrocities like making the person of

the scheduled caste to eat inedible substances like human excreta,

raping the scheduled caste women and forcing the scheduled caste

women to parade nude in the public, mass killings of dalits, arson etc.

So in order to prevent caste based atrocities on dalits the Parliament

enacted the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred as anti-atrocities law).34

Atrocity

The SC/ST (Prevention of Atrocities) Act, 1989 makes punishable a

dozen acts of atrocities against a member of the scheduled caste and

scheduled tribes. According to anti-atrocities law the following acts

are ‗Atrocities‘ against scheduled caste and scheduled tribes:

Offences against human dignity like forcing the SC/ST members to

eat inedible or obnoxious substances,35

dumping excreta or obnoxious

substances with intent to cause injury, insult or annoyance,36

stripping,

dishonoring or outraging modesty of a SC/ST women37

and her sexual

exploitation,38

forced or bonded labour,39

intentional public

humiliation,40

property related offences like wrongful cultivation41

or

dispossession42

of land, wrongful eviction from land, premises, house

or other place of residence or village,43

unauthorized interference with

33

Statement of Object and Reasons, Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. 34

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

came into force on Jan. 30, 1990. 35

Id., s. 3(1) (i). 36

Id., s. 3 (1) (ii). 37

Id., s. 3 (1) (iii), (xi). 38

Id., s. 3 (1) (xii). 39

Id., s. 3 (1) (vi) 40

Id., s. 3 (1) (x). 41

Id., s. 3 (1) (iv). 42

Id., s. 3 (1) (v). 43

Id., s. 3 (1) (xv).


64

the enjoyment of rights over land and water,44

offences like

intimidation or coercion of voters to either abstain from voting or to

vote for a particular candidate,45

enforcing social disabilities like

corrupting or fouling water used by members of SC/STs,46

denial of

rights of passage or entry to public places,47

abusing legal process like

insulating false, malicious or vexatious legal proceedings,48

furnishing

false or frivolous information to a public servant49

are made punishable

with an imprisonment for a term not less than six months but nor more

than five years and with fine. Further, giving or fabricating false

evidence leading to the conviction of a SC/ST person,50

causing

disappearance of evidence against offenders guilty of atrocities,51

committing mischief by fire and other explosive substances with an

intention to cause damage to the property of the SC/ST people52

are

made punishable with death sentence, life imprisonment and

imprisonment for a term between six months to seven years with fine.

Salient Features of the Act

The anti-atrocities law also provides for the establishment of the

special court for the speedy trial of offences of atrocities, 53

the

appointment of the special public prosecutor;54

stipulates enhanced

punishment for subsequent conviction under the Act,55

makes a non-

scheduled caste ‗public servant‘ criminally responsible for his ‗willful

neglect‘ of his duties required under this Act,56

denies to the accused

the statutory anticipatory bail,57

and disentitles a convict (above 18

44

Id., s. 3 (1) (xiv). 45

Id., s. 3 (1) (vii). 46

Id., s. 3 (1) (xiii). 47

Id., s. 3 (1) (xiv). 48

Id., s. 3 (1) (viii). 49

Id., s. 3 (1) (ix). 50

Id., s. 3 (2) (i). 51

Id., s. 3 (2) (vi). 52

Id., s. 3 (2) (iii). 53

Id., s. 14. 54

Id., s. 15 55

Id., s. 5. 56

Id., s. 4. 57

Id., s. 18.


65

years of age) for his release on probation.58

Under the anti-atrocities

law the state government is made responsible to take adequate

measures regarding facilities like legal aid to provide them

representation, traveling and maintenance expenses including the

victim of atrocities, provision regarding economic and social

rehabilitation of the victims of atrocities etc.59

So anti-atrocities law provides for a more severe punishment for

the offences of atrocities. The Act made punishable the very acts of

humiliations and discrimination resulting in disabilities and indignities.

The Act provides for punishment for the denial of certain civil rights to

dalits like preventing a scheduled caste from casting his vote,

unauthorized interference with the right to enjoyment of land and

water, fouling the water used by the members of the scheduled castes

etc. by including such denial within the purview of atrocity. It also

provides for the rehabilitation and compensation to the victims of

atrocities which are salutary provisions of this Act. Besides the anti-

atrocities Act, the SC/ST (Prevention of Atrocities) Rules, 1995,

framed under the Act provides for a comprehensive legislative

mechanism to achieve the aims of the anti-atrocities Act. So the Act

and the rules framed there under intend to prevent the inhuman

sufferings, indignities, humiliations and oppressive harassment and

exploitation of the persons belonging to the scheduled castes and

thereby try to assure them the hitherto denied right to live with dignity.

IV. Atrocities on Dalits and Human Rights

Despite the legal safeguard provided for the protection of the

scheduled castes from caste based atrocities and discrimination, the

atrocities on dalits are not coming to an end and dalits are still meted

out with various forms of atrocities in different parts of the country.

The Constitution of India aimed at constructing an egalitarian social

order free from all caste based prejudices but Dr. B.R. Ambedkar,

while speaking on the eve of the moving of the Draft Constitution in

1949, showed his non-challengeable fear regarding the existing

inequalities in the Indian society while he observed that:

58

Id., s. 19. 59

Id., s. 21.


66

“On 26th

January 1950, we are going to enter into a life of

contradictions. In politics we will have equality and in the

social and economic life we will have inequality. In politics

we will be recognizing the principle of one man, one vote

and one vote, one value. In our social and economic life,

we shall, by reason of our social and economic structure,

continue to deny the principle of one man, one value.”60

The words of Dr. Ambedkar seems to have become true as even

after the 60 years of independence the dalits are denied their social and

economic rights and they are being subjected to various types of

atrocities. We have the equality on papers but the ground reality

providing an example of inequalities in the society. The anti-atrocities

law has not fully successful in preventing the incidents of atrocities on

dalits due to its under-enforcement. The cases of atrocities are reported

in increasing number throughout the country and many a times they go

unreported because of the reluctance of the scheduled castes and

distrust in police among them. Due to the ineffective implementation

of the anti-atrocities law and lack of strong will on part of the state to

prevent the atrocities, the crimes or atrocities against the scheduled

castes are still persisting.

In 2003, a 38 years old woman was allegedly forced to drink

excreta mixed with water in front of her husband and children after she

spurned the advances of upper caste villagers in Keela Urappanur

village in Thirunanaglam block of Madurai District.61

On December 1,

1997 armed Ranvir Sena activist entered a 14 dalit homes in

Laxmanpur-Bathe village in Bihar and killed a total of sixty-one

people: sixteen children, twenty-seven women, and eighteen men. In

some families, three generations were killed. The main reason for the

attack was that the Bhumihars wanted to seize fifty acres of land that

had been earmarked for distribution among the landless labourers of

the village. The authorities apparently knew of the tensions but had not

cared to intervene in the land dispute and nip the trouble in the bud and

60

See supra note 10. 61

Indian Express, Sep. 30, 2003, as quoted in Jimmy Dhabi, ―Dalit Human Rights:

Issues and Perspective‖, 54(1) Social Action 33(2004).


67

instead allowed things to come to head.62

In August, 2005, in Gohana

(Haryana), 20 dalit homes were torched by the upper caste (Jats) on a

decision taken at a meeting of a Khap Panchayat to teach a lesson to

the dalits in retaliation to alleged killing of one Jat member, Baljit

Siwach, by the dalit community people.63

Causes of Atrocities:

A. Caste Hatred and Untouchability

The age-old caste hatred and practice of untouchability is at the root of

the atrocities against dalits. The internalization of their suppression by

the dalits is one of the reasons due to which incidents of atrocities go

unreported. Even when they try to raise their voices against the

prejudices and derogatory treatment meted out to them, their voices

are pressed either through the mighty caste Hindus or by the state

instrumentalities by their positive action against them or by inaction

(omission) by colluding with the caste Hindus. In February, 2006, in

Mahmadpur (Haryana), at the instigation of a Rode (an upper caste)

sarpanch, 30 dalits were seriously injured because the dalits were

trying to take out a procession on the eve of Ravidas Jayanti.64

So this

indicates the caste hatred prevalent among caste Hindus that prevents

the dalits to enjoy their rights in a free manner and thus results in

atrocities.

B. Illiteracy and poverty

Illiteracy among dalits makes them unaware of their rights. Due to

unawareness they are unable to approach the appropriate forum for the

protection and enforcement of their rights and therefore that also

encourages atrocities to go on. Even if they have such awareness, they

do not have adequate resources to have their rights get remedied.

62

―Murder and Mayhem‖, The Hindu, December 14, 1997, as cited in supra note 2 at

60. 63

―Dalits Atrocities: September to December 2005‖, Human Rights News Bulletin,

available at: http://www. indianet.nl/dalitatroc0509.html (visited on Nov. 14, 2009). 64

―Justice for Dalits Still a Dream‖ available at:

http://www.hinduonnet.com/2006/05/11/stories/htm (visited on Oct. 12, 2009).


68

Abject poverty makes them dependent on the upper caste people in

matters of livelihood and work. Whenever they get some land from the

state that also makes them vulnerable to atrocities as the upper castes

people do not take it very kindly. The instances are not uncommon

where the upper caste people have even tried to seize the land allotted

to the scheduled castes by the Government. So their economic

dependence on the upper caste people and their backwardness and

unawareness are also among the causes of infliction of atrocities on

them. In September 2006, in Maharastra‘s Bhandara district‘s village

Khirlanji, the upper caste people killed four members of a dalit family

that was resisting land expropriation.65

C. Self-Assertion by the Scheduled Castes

Due to the awareness created among the scheduled caste by education,

whenever they tries to assert their rights, such assertion is meted out

with the might of the upper castes and results in atrocities because

such assertion of rights runs counter to the dominance of the upper

caste in the society. On December 25, 1968 as many as 42 dalits were

burnt to death when upper caste hooligans locked them up in a hut and

set it on fire in Kilvenmani in Tamil Nadu‘s Tanjavur. That was after

the dalit agricultural labourers had decided to protest against low

wages and had started getting organised.66

D. Lack of Political Will - State Complicity

State complicity is also a reason for the increasing atrocities on dalits

because the persons in power are among the upper castes who do not

take keen interest in preventing atrocities on dalits rather connive with

the perpetrators of atrocities. Though the state has played an important

role in protecting the rights of dalits still the state‘s complicity with

65

Manoranjan Mohanty, ―Kilvenmani, Karamchedu to Khairlanji: Why Atrocities on

Dalits Persist‖, available at: http://www.boell-

india.org/download_en/mohanty_amrita_corrected.pdf (visited on Oct. 16 2009). 66

Ibid.


69

upper castes especially in case of the police shows the acquiescence of

the state as a whole.67

Police and Dalits

The police have the responsibility to protect the people being an

instrumentality of the State. But the police do not seem to protect

dalits rather in many cases it perpetuate violations of human rights of

dalits by allowing themselves to be prejudiced by their own caste

biases. Corruption and biases mark the ground reality of police

activity.68

Under reporting of cases is a very common phenomenon.

An NGO in Gujarat, in a study covered 11 atrocities-prone districts for

four years, showed that 36% of atrocities cases were not registered

under anti-atrocities law, and in 84.4% of the cases where provisions

of the Act were invoked, the cases were registered under wrong

provisions with a view to conceal actual and violent nature of the

incidents.69

The National Human Rights Commission (NHRC) in its report

stated that “[P]olice resort to various machinations to discourage

scheduled castes/scheduled tribes from registering cases, to dilute the

seriousness of the violence, to shield the accused persons from arrest

and prosecution and, in some cases, the police themselves inflict

violence”.70

Cases are not registered despite merit, and if registered

then charge sheets are invariably filed late. Police collusion with

offenders, manipulation of evidence and intimidation of witnesses,

filing of counter cases against the scheduled castes on false grounds

and investigation by inappropriate authority resulting in closing of the

case, led to the ineffectiveness of anti-atrocities law. The causes of

police biases are varying, for example majority of upper-caste people

in police force, prevalent corruption in police system, pressure from

political people etc.

The police also itself inflict atrocities on dalits. The Ramabai

killings reflect the police atrocities on dalits. Ten peoples were killed

67

Ibid. 68

Supra note 25 at 159. (A 1978 survey revealed that over 70% of the population

believed the police to be corrupt). 69

Supra note 13 at 33. (Study conducted by NGO Navsarjan in the State of Gujrat). 70

Id. at 25.


70

in police firing in Ramabai colony in Bombay on July 11, 1997 as they

were protesting against the desecration of the statue of Dr. Ambedkar.

Sub inspector M.Y. Kadam, who had a number of atrocities cases

pending against him, ordered open firing on the protestors without

making any effort to disperse the crowd. Most of the victims were shot

above the waist. After the incident, the members of the dalit

community were refused to lodge any complaint.71

The above incident highlights the fact of prevalence of ill-will

against the scheduled castes, efforts to hurt the feelings of the

scheduled castes, arbitrary police actions and caste affiliations

undermining and hampering the effectiveness of the anti-atrocities law

and thereby endangering the rights of the scheduled castes.

Police practice of raiding the dalit villages in Bihar to search out

naxalites militants and falsely arresting the accused of harbouring the

naxalites is also in vogue. Human Rights Watch describes the

“pattern” of raid conducted by the police in Bihar:

―The pattern of raids consisted of arbitrary arrests and

assaults on dalit men and women and often included

looting and destruction of property. In some cases, police

remove their badge numbers so villagers would not be able

to identify and file cases against them. Studies conducted

by the Tamil Nadu Commission for Scheduled castes and

Scheduled tribes in various southern district villages

concluded that attacks on these [dalit] villages were

motivated by a desire to cripple dalits economically by

targeting obvious symbols of newfound wealth. ‖72

So it is disgusting that the protector of the law, who are entrusted

with the duty to protect and safeguard the scheduled castes, commits

atrocities on them. The state complicity and lack of political will on

part of the state has turned the anti-atrocities law ineffective.

Judiciary and Dalits

In India, the judiciary is enjoined with task to safeguard the rights of

the people from undue encroachment. The judiciary has to uphold the

71

Supra note 2 at 127-132. 72

Id. at 102.


71

constitutional mandate to provide justice to all. But the lower judiciary

has failed to internalise this duty, and many a times the judges are

governed by their caste biases and affiliations. In July 1998, an

Allahabad High Court Judge had his chambers ―purified‖ with water

from the river Ganges because a dalit Judge had previously occupied

it.73

When dalits appear before the courts as victims of abuse, they are

often treated with indifference by the lower judiciary. Incidents are not

uncommon when the members of the lower judiciary can be seen to

have an anti-dalit attitude which also affects and reflects in the

decision making by the judges.

A ridiculous instance worth citing here is that of the rape of a

social worker, Bhanwari Devi in Rajasthan which came before the

Supreme Court in the famous case of Vishakha v. State of Rajasthan,74

where the judge‘s anti-dalit attitude was clearly reflected in the

decision of the case at the district level. Although the National

Commission for Women concluded after a long inquiry that all

evidence proved beyond any doubt that the victim was gang raped, the

sessions court acquitted all the five defendants from the charge of rape

because, among other things, the judge did not find it credible that

upper caste men would rape a lower caste women.75

This disgusting

instance is indicative of the attitude of the lower judiciary towards the

causes of the scheduled castes. Where the judges are being driven by

their caste convictions and caste affiliations then how can one express

its trust in the impartiality of the judiciary.

The Public Prosecutors also seem to have hostile tendencies

against dalits which results in collapse of cases under the anti-

atrocities law. Vajibhai Patel, the Secretary of Council for Social

Justice, made a detailed study of 400 judgments passed by different

district courts of Gujrat, observed that utterly negligent police

investigation at both the higher and lower levels coupled with a

distinctly hostile role played by the public prosecutor is the main

reason for the collapse of cases filed under anti-atrocities Act. The

73


AIR 1997 SC 3011. 75

Ruma Pal, ―Redress for Violence against Women in India‖, 8 Developing Human

Rights Jurisprudence 7(1998) - (citing unreported judgment of the Rajasthan Trial

Court dated November 15, 1995), as cited in Avani Mehta Sood, ―Redressing

Women‘s Rights Violations‖, 1 Jindal Global Law Review 147 (2009).


72

study also nullifies the common perception that inefficiency in anti-

atrocities law is due to false complaints being lodged or compromise

between the parties, but in reality it is the state complicity that has

rendered the Act ineffective.76

Further, the special courts77

constituted under anti-atrocities law

cannot take cognizance of cases of atrocities as a court of original

jurisdiction unless the case is committed to it by a Magistrate as

required under Code of Criminal Procedure, 1973.78

The Judiciary has

time and again reiterated this requirement as to committal of a case to

the court of sessions under the anti-atrocities law. In Gangula Ashok v.

State of Andhra Pradesh,79

the Supreme categorically said that section

193 of the Code imposes an interdict on all the courts of sessions,

unless expressly exempted by the Code itself or by any other law,

against taking cognizance of any offence as a court of original

jurisdiction. The object as to the speedy disposal of cases stands

defeated as, in the absence of any special procedure prescribed under

the anti-atrocities Act, the special court has to follow the ordinary

procedure of taking cognizance which is prolonged and arduous.

Thus the state, which must act towards protecting the rights of

dalits, is in fact, hindering the peaceful exercise of their rights either

through its active participation in the incidents of atrocities or through

its connivance. The state, which must act towards the realisation of the

social justice for this underprivileged class, is deviating from its path

by conniving in the atrocities on dalits.

Caste-Race Issue

The new emerging trend which is being seen in the international arena

is to recognise caste-based discrimination as equivalent to racial

76

Subhash Gatade, ―A New Milestone in the Movement for Dalit Emancipation‖,

45(39) Mainstream 21 (2007). 77

Constituted under s. 14 of the SC/ST (Prevention of Atrocities) Act, 1989. (The

court of sessions to be a special court). 78

S. 193, Code of Criminal Procedure, 1973 provides that, “Except as otherwise

expressly provided by this Code or by any other law for the time being in force, no

Court of Sessions shall take cognizance of any offence as a court of original

jurisdiction unless the case has been committed to it by a Magistrate under this

Code.” 79

AIR 2000 SC 740.


73

discrimination and to deal with it under the Convention on Elimination

of All Forms of Racial Discrimination. The United Nations Human

Rights Council held in Geneva on September 2009, deliberated on the

recognition of caste as race and proposed to ensure that descent and

work based discrimination are require to be fought at the international

level. It stated that this type of discrimination is typically associated

with the notion of purity and pollution and practices of untouchability

and is deeply rooted in societies and cultures where this discrimination

is practised.80

Millions of people face caste based discriminations

which are associated with notion of purity, pollution and practices of

untouchability. Such notions are deeply rooted in the Indian society

and have also assumed cultural forms.81

But the move as to deal with

the caste based discrimination at the international level is getting

vehement opposition from the Indian government itself. The Indian

government has taken an adverse stand on this caste-race issue by

repeatedly pointing out that this is not discrimination based on race

and caste is not similar to race but peculiar to Indian society. But such

view does not take note of the fact that the definition of "racial

discrimination" under the International Convention on the Elimination

of All Forms of Racial Discrimination; article 1, includes within its

purview discrimination on the basis of descent (birth).82

The caste discrimination is very much falling in the category of

racial discrimination and any opposition to the same have no rationale

altogether. The view that there is no black-white issue in India forgets

to take account of the institutionalised discrimination which takes

place on the basis of birth in a particular caste is much more grave in

nature and very much similar to the discrimination based on race.

In India, the number affected is greater, the poverty is deeper, and

80

―How India Flip-Flopped over Caste and Race at UN‖, Times of India, Oct. 4,

2009. 81

Ram Puniyani, ―UN Anti-Caste Charter: Annihilation of Caste‖, available at:

http://www.pluralindia.com/issues-in-secular-politics.php?id=233 (visited on Nov.

23, 2009). 82

Article 1 of the Convention on Elimination of All Forms of Discrimination defines

‗Racial Discrimination‘ to mean- “any distinction, exclusion, restriction or

preference based on race, colour, descent or national or ethnic origin which has the

purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,

on an equal footing, of human rights and fundamental freedom in the political,

economic, social, cultural or any other field of public life.”


74

the atrocities are every day affair. The population of dalits in India

equals more than half the population of the United States. A majority

of dalits live on less than US $1 per day.83

According to the National

Campaign on Dalit Human Rights, 27 atrocities are committed against

dalits every day, 13 dalits murdered every week, 5 dalits‘ homes or

possessions burnt every week, 6 dalits kidnapped or abducted every

week, 3 dalit women raped everyday, 11 dalit beaten everyday and a

crime is committed against a dalit every 18 minutes in India.84

So

there is every reason for dealing with caste discrimination at the

international level keeping in mind the state‘s failure in protecting the

human rights of dalits in India.

Even in 1965, India itself proposed the amendment in the CERD to

include ‗descent‘. K.C. Pant while moving the amendment admitted

that ―certain groups of the same racial stock and ethnic origin as their

fellow citizens had for centuries been relegated by the caste system to

a miserable and downtrodden condition‖.85

But after that (especially

since 1996), India took the stand that caste based discrimination does

not fall within the scope of the CERD. In its concluding observations

the Committee on CERD recommended that the India‘s next report

should include the information regarding the implementation of

measures for the protection of the Scheduled Castes.86

But the

government never changed its stand which is quite unfortunate.

Further, the political-cum-religious groups like BJP and RSS are

coming into opposition of this issue. Their opposition to this issue is

quite explicable as their politics is based around the goal of Hindu

Rashtra.87

The caste is an inseparable part of Hindu society and such

attacks on and recognition of caste based discrimination at the

international level is very much an issue for opposition by a political

party like BJP. So the inherent vested interests are coming in

opposition of the caste-race issue. As rightly pointed out by the NHRC

it is not so much the nomenclature of the form of discrimination that

83


―27 Atrocities against Dalits‖, available at: http://www.ncdhr.org.in/esdi/2-dalit-

houses-are-destroyed (visited on Oct. 17, 2009). 85

Supra note 80. 86

Concluding Observations of the Committee on Elimination of All Forms of Racial

Discrimination, 1996, (CERD/C/304/Add. 13); as cited in supra note 2 at 265-271. 87

Supra note 81.


75

must engage our attention but the fact of its persistence that must

cause concern.88

The attention must be given to the gravity of the

caste-descent based discrimination and the growing human rights

violations of the scheduled castes in India and steps must be taken at

the international level to tackle with the problem rather than

concentrating more on the nomenclature of the form of discrimination

i.e. caste or race.

V. Conclusion

The caste based atrocities are still persisting in the world‘s largest

democracy despite the legal safeguards, and the human rights of this

group are under a cloud of danger which quite often burst upon them

making them vulnerable and denying them their right to be human.

The caste based discrimination is comfortably taking breath in a

hierarchical society ruled by the principle of graded inequality thus

challenging the constitutional mandate of establishing an egalitarian

social order. The ineffective implementation of the anti-atrocities law,

under-reporting of atrocities cases, along with the inherent vested

interests in maintaining the caste discrimination, are the reasons for the

perpetuating atrocities. Improper investigation in atrocities cases

results in low conviction rates. According to the NHRC annual report

27,894 cases were registered under the Atrocities Act in 2002 and only

2.31% of cases resulted in conviction compared against the high

number of atrocities reported against dalits. The low rate of conviction

is the result of varying factors like caste bias of the prosecutors as well

as other organs of justice, including the judiciary and the law

enforcement machinery‘s lack of familiarity with the provision of the

relevant legislation.89

A check on the law enforcement machinery in

this regard is much needed and requires legal scrutiny.

As the state has, to a large extent, failed to prevent the atrocities on

dalits, the role of the civil society becomes very important in the

protection of their human rights. Many NGOs are working in this field

and have done a lot of research in this regard but due to lack of any

follow-up mechanism their efforts results in frustration. Human Rights

88


Supra note 1 at 299-300.


76

Watch in its Report ―Broken People‖ has recommended the

government to take measures to prevent further violence and prosecute

state and non- state actors responsible for caste motivated attacks. It

has recommended the government to disband the ‗Ranvir Sena‘ and

also advocated and recommended to make adequate land reforms to

resolve the caste based discrimination. Attention must be paid to the

recommendations made by the human rights NGOs in this regard.

Necessary mechanism must also be established for follow-up of the

reports prepared by various human rights NGOs.

Adequate steps must be taken to effectively implement the anti-

atrocities law and to remove the flaws in it. The special courts to be

constituted under the Act must be given the power to take cognizance

of cases as a court of original jurisdiction for speedy trial of atrocities

cases and therefore effect of Supreme Court‘s ruling in Gangula

Ashok‟s Case90

requires to be undone.

In states like Haryana, the activities and the decision making of the

‗Khap Panchayats‘ and their legitimacy must be brought under the

legal scrutiny.91

The NHRC, in its report on atrocities, has made important

recommendations which require adequate attention to prevent

atrocities and also for the effective implementation of the anti-

atrocities law.92

National Commission for Scheduled Castes must be

90



The NHRC, inter alia, recommended to the government to prepare a manual of the

implementation of the Atrocities Act, training of officials, annual workshop of

district magistrate and superintendents of police, establishment of exclusive special

courts where volume of cases is large, creation of state and district level monitoring

and vigilance committees with adequate participation of the human rights

organizations working for scheduled castes in deliberations of these committees. It

also recommended the immediate identification of the atrocity prone areas,

monitoring by itself of the provisions regarding payment of compensation to victims

of atrocities and their rehabilitation and recommended that value of the property

destructed in the course of atrocities against dalits should be included in the

compensation package. It also recommended the amendment in anti-atrocities law

with a view to undoing the effect of the judgment of the Supreme Court in Gangula

Ashok‟s Case. The NHRC also recommended that the state government should train

social workers from the scheduled castes in each village of atrocities prone areas to

help the victims in taking up their complaints. NHRC recommended the posting of at

least one women functionary in each station in atrocities prone areas and in case of

serious complaints against women investigation must be carried out by women

officer. Further it recommended that in each blocks a women social welfare officer


77

provided with strong investigation and legal wing to investigate cases

and made research and be provided with adequate budgetary funds to

facilitate the tasks of the Commission.

The Protection of Human Rights Act also needs to be amended.

The bar on complaints filed after one year of the incident is required to

be removed because many a times the incidents of atrocities on dalits

come to light after a period of one year either because of the non-

reporting by the victim or the incidents of atrocities are brought into

limelight by NGOs after a period of one year.93

In that case NHRC

becomes helpless as this helplessness or the limitation is also upheld

by the Supreme Court in N.C. Dhoundial v. Union of India.94

These

recommendations need immediate attention for securing the human

rights of dalits and for tackling atrocities.

Endogamy is the peculiar feature of the caste system in India and

also a hindrance in bringing out change in the mindset of the upper

caste people. Inter-caste marriages may help in bringing change in the

outlook of the society so the government must encourage inter-caste

marriages.

Poverty and economic dependence of the scheduled caste on the

upper caste are the major factors for growing atrocities.95

Though

affirmative measures in the form of reservations have been taken by

the government but this affirmative measures have not reached to the

needy. The data have demonstrated that the reservation benefit have

or child development officer be posted to entertain complaint regarding violence

committed against SC women which are not registered by competent authority and

officially pass it to the concerned authority with a copy to district magistrate for

taking up necessary investigation. See supra note 13 at 201-215. 93

Art. 36(2), Protection of Human Rights Act, 1993; The NHRC cannot inquire into

any matter after the expiry of one year from the date on which the act constituting

violation of human rights is alleged to have been committed. 94

AIR 2004 SC 1272; Supreme Court rejecting the view of NHRC as to the principle

of continuing wrong or recurring cause of action and observed that if the view is

accepted it would make Section 36(2) a dead letter. The court held that it is a

jurisdictional bar and there is no provision in the Act to extend the said period of

limitation. The commission which is the creature of a statute is bound by its

provisions. 95

85% of dalits forms part of the rural population. Over 75% of dalits performs land

connected work, 25% as marginal or small farmers and over 50% as landless

labourers earning less than US $1 per day. Though they are only 16% of the total

population, dalits constitute 60% of those below the poverty line. Anand Teltumbde,

―Globalization and Dalits‖, as cited in Supra Note 1 at 285.


78

only reached to a few small portion of this group.96

The special plans

described as powerful mechanism for ensuring dalit economic

empowerment has itself been thwarted in its application and

implementation by administrative agencies at the central and state

level either by inadequate investment of public resources, non-

utilisation or diversion of funds earmarked for dalit empowerment.97

So the economic empowerment of the scheduled castes is a tool to

minimise the incidents of atrocities as the economic dependence

makes the scheduled castes vulnerable to atrocities. So the need is to

implement the economic measures in the true spirit for uplifting the

scheduled castes.

The law must play a role in changing the status of the scheduled

castes in the society and must prevent these atrocities as these

atrocities struck at the very base of human rights that is human dignity

and thus denies to a large segment of the society the rights to be

human. The international community also must recognise the caste

based discrimination as a human rights issue and this problem must be

tackled at the international level and the India must abandon its hard

stands which does not have any rationale behind it.

96

According to 1996 estimate only 1.1 Million out of the then population of 138

Million were employed in sectors that fall under the domain of reservations, a paltry

0.8%. With the privatization of public sector industries since the advent of economic

reforms in India in the early 1990s, that percentage has likely declined. S.M. Michael

(ed.), Dalits in Modern India: Vision and Values (SAGE Publications, Los Angeles,

2nd

edn., 2007), as cited supra note 1 at 313. 97

According to the National Campaign on Dalit Human Rights, during the past five

year plan period, an average of 2 billion Euros ( US $2.96 billion) per year was

illegally diverted from these funds; National Campaign for Dalit Human Rights,

Background of the Dalit Situation in India (September 2007). The figure is

calculated from: Expenditure Budget II (Notes on demands for Grants), Union

Budget 2006-07; Statement No. 21, Expenditure Budget I, Union Budget 2006-07;

Outcome Budget 2006-07 for various Ministries of Central Government), as cited in

supra note 1 at 302.


79

CYBERSQUATTING: PITS AND STOPS

Slahuddin Ahmed

Abstract

This article shall begin by outlining the domain name disputes and the problem of

cybersquatting. The main thrust of the article shall be to consider how the authorities

react to allegations of cybersquatting and attempt to analyze whether this has been

sufficiently effective as far as India is concerned. First of all, the US approach and

their specific Anti-cybersquatting legislation shall be discussed. Then, the dispute

resolution under Uniform Dispute Resolution Policy (UDRP) to deal with

cybersquatting cases shall be considered. The next part of the article shall look at

the Indian approach of dealing with the matter. And the final part shall suggest

reforms in the prevailing law regarding the issue in India.

I. Introduction

THE INTERNET is truly revolutionary. It has created endless new

opportunities for the citizens of cyberspace, ones that were not

possible in the old, real world. The growing importance that the

internet has played in consumers' lives and the world-wide change in

consumption habits has turned it into a powerful tool for businesses to

promote, advertise, and sell products and services.1 Unfortunately, as

with most tools, not all uses of the Internet are laudatory, or even

benign. As anyone who has ever had his computer attacked by a virus

or read about ‗cyber fraud‘ knows, the Internet is also a prime arena

for dishonest and unlawful conduct. Unscrupulous Internet behavior

includes trademark infringement. Many businesses have fallen prey to

so-called cybersquatters, individuals who register Internet domain

names containing trademarks of others.2

The classic cybersquatting scam works as follows: The

cybersquatter registers an Internet address (known as a ‗domain

name‘)3 that includes another person's trademark. For example, the


1 Zohar Efroni, ―The Anticybersquatting Consumer Protection Act and the Uniform

Dispute Resolution Policy: New Opportunities For International Forum Shopping?‖,

26 The Colum. Jour. of Law & the Arts 335 (2003). 2 Michael P. Allen, ―In Rem Jurisdiction from Pennoyer to Shaffer to the

Anticybersquatting Consumer Protection Act‖, 11 George Mason L. Rev. 243 (2000). 3 Domain names are the familiar and easy-to-remember names for Internet locations.

It is easier to reach a company's web site if its domain name corresponds to the

Cybersquatting: Pits and Stops [Vol. 1 : 1

80

cybersquatter might register the domain name ‗coke.com‘ containing

the trademark ‘Coke‘ held by the CocaCola Company. Thereafter, the

cybersquatter tries to sell the "coke.com" domain name to the

CocaCola Company. A company in CocaCola's position is often

willing to pay a ransom to the cybersquatter because of the importance

of a domain name in the increasingly Internet-focused business world.

This is so because the domain name directs an Internet user to a

particular web site. As a business matter, CocaCola simply has to

ensure that someone using the Internet address ‗coke.com' would reach

CocaCola.4

II. Domain Name Disputes

Before examining cybersquatting, it is necessary to place in

context the technical background against which these disputes have

arisen. First, it is important to note that the Domain Name system

(DNS) was introduced not for any technical functioning necessity but

solely with the purpose of aiding users; in as much as they can be

remembered more easily. This is because the actual addresses are

known as Internet Protocol (IP) and are composed of four sets of

numbers, between 0-255 separated by dots, such as 123.245.35.67. As

Black5 says, the DNS simply provides a mapping service which links

the given name and the corresponding Internet Protocol. Domain

names are assigned on a first-come, first-serve basis.6

Domain names consist of a hierarchically structured character

company's name or leading product. For example, Ford Motor Company's web site

may be accessed at "ford.com." Domain names map the unique Internet Protocol (IP)

numbers that serve as routing addresses on the Internet. The domain name system

translates Internet names into the IP numbers needed for transmission of information

across the network. Every computer connected to the Internet is assigned a numeric

address. This address is in the form of numbers, such as 123.112.101.1. Because

these long numbers are difficult to remember, the Internet authorities permit

assignment of comparable alphanumeric addresses to each numeric IP address. For

example, the domain name "microsoft.com" is also reachable at 207.46.193.254. 4 Supra note 2 at 244.

5 William Black, ―The Domain Name System‖ in Edwards and Waelde (eds.), Law

and the Internet: A Framework for Electronic Commerce 125 (Hart Publishing Co.,

Oxford, 2000). 6 Stacy B. Sterling, ―New Age Bandits in Cyberspace: Domain Names Held Hostage

on the Internet‖, 17 Loyola of Los Angeles Entertainment L. Rev. 733 (1997).


81

string of numbers that function as an Internet address. They are the

equivalent of telephone numbers or addresses. Since numbers are more

difficult to remember, alphabetical domain names were developed to

make the addresses easier for humans to remember and use when

communicating on the Internet. Such names are often catchy words or

well-known names of individuals or companies, for example,

‗nokia.com‘ or ‗samsung.com‘. Thus, a domain name is a popular

substitute for the all-numeric IP address of a particular server.7

Broadly, domain name disputes have arisen in two contexts. In the

first, an individual or organization with no other rights to a name may

register a domain name with that name. This may be for several

objectives – extortion appropriation of goodwill, diversion of web-

traffic, defamation, etc. the second kind of conflict arises between

persons who are equally entitled to a name – a situation that arises

often, given the global nature of the internet.8

There are various domain name disputes that have come up for

consideration of courts around the world. e.g., Cybersquatting

(Registration of a well-known trademark as a domain name in the hope

of selling it at a later date, Competitor Disputes (Registration of

domain names that contain company name or trademarks of one‘s

competitors), Palming-off Disputes (Registration of domain names

with intent to palm-off the fame and goodwill of someone else‘s

trademark), Parody Disputes (Registration of a domain name that

resembles a company‘s name or trademark and then using it in

connection with a website that includes commentary or makes a

political or satirical statement about it), etc.

III. The Cybersquatting Problem

Cybersquatting is a particular type of domain name dispute which

occurs when someone registers a domain name which is associated

with a famous firm with the sole intention of selling it on to them at a

7 Nandan Kamath, Law Relating to Computers, Internet and E-Commerce – A Guide

to Cyberlaws 167 (Universal Law Publishing Co., Delhi, 4th

edn., 2009). 8 Id. at 169.


82

higher price.9 Cybersquatting is the practice of registering a trademark

as a domain name with the intent of profiting from it by selling it,

usually to the trademark owner. As long as the cybersquatter owns the

domain name, the trademark owner cannot register its own trademark

as a domain name. In this sense, the cybersquatter breaches the

fundamental rights of the trademark owner to use its trademark.

However, it is important to note that there is nothing wrong with the

practice of reserving a domain name.

Frequently, cybersquatters register words or phrases they hope will

some day be sought after by new companies or new business divisions.

A trademark is not infringed by a domain name unless the trademark

existed at the time of domain name registration. This kind of

cybersquatting is speculative and legitimate. John D. Mercer also

identifies "innocent" cybersquatting, whereby the registrant does

infringe a trademark "based on some unrelated interest in the word

itself, without intending harm to a trademark owner" and "concurrent"

cybersquatting, whereby the registrant uses the same trademark as

another commercial entity, but not within a competing industry.10

However, the harmful kind of cybersquatting involves intentional

bad faith trafficking in domain names that are the same as, or a

dilution of, existing trademarks. Such domain name registrants are

considered "modern day extortionists."11

An illegal cybersquatter,

thus, is one who acquires a domain name for the sole purpose of

obtaining money or other advantage from the trademark owner, with

no intent or desire to use the domain name, except as an instrument

9 It can be distinguished from other associated disputes such as domain name

hijacking or typosquatting where the domain names are very similar to a famous

brand but there is a slight misspelling to attract custom to the site. Another type of

dispute is known as parody or so called sucks.com whereby a site is registered such

as microsoftsucks.com with the intention of damaging a firm‘s reputation. Also

domain name envy is where two companies may both legitimately want the same

name such as with AA.com, where alcoholics anonymous or the automobile

association would be entitled to this but it is actually American Airlines who have it.

Linked to this, reverse domain name hijacking is the practice whereby a bigger firm

tries to force a smaller firm who has legitimately registered a website to hand it over

to them. 10

John D. Mercer, "Cybersquatting: Blackmail on the Information Superhighway", 6

Boston University Journal of Science and Technology Law 11 (2000). 11

Christopher R. Perry, "Trademarks as Commodities: The 'Famous' Roadblock to

Applying Trademark Dilution Law in Cyberspace", 32 Connecticut Law Review

1127 (2000).


83

toward this purpose. In addition to collecting ‗ransom‘, a cybersquatter

might want to register a well-known trade-mark as a domain name in

order to affect Internet traffic. For example, using a well-known

domain name might help improve search results for the registrant's

own website or might help the cybersquatter attract Internet users

initially seeking a legitimate brand to his or her site. An increasingly

popular practice among cybersquatters has been to park domain names

at websites that offer revenue programs whereby domain name holders

who redirect Internet traffic to these websites become eligible for a

referral fee. These parking websites usually contain links to other

websites on a pay-per-click basis, and both the parking service and the

registrant share in the revenue.12

The acknowledged arch-cybersquatter is Dennis Toeppen, who

registered a host of well-known trademarks as domain names

(including deltaairlines.com, neiman-marcus.com and numerous other

famous marks),13

and who has been unsuccessful in defending his

rights to them when sued by the trademark owners. Intermatic Inc. v.

Toeppen14

and Panavision International v. Toeppen15

are considered

the pivotal cybersquatting cases and have had a profound impact on

the development of cybersquatting case law, as well as on the drafting

of the Anticybersquatting Consumer Protection Act, 1999 (hereinafter

‗ACPA‘).

Panavision illustrates some of the typical issues encountered in

cybersquatting cases where trademark infringement is raised. Toeppen

registered the domain name.‘panavision.com‘ and used the website to

display pictures of the city of Pana, Illinois. He offered to sell the

domain name to Panavision for $13,000. Panavision declined and

12

"Cybersquatting Remains on the Rise with Further Risk to Trademarks from New

Registration Practices", available at:

http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_479.html (visited on Oct.

30, 2009 at 4.30 p.m.). 13

Christopher P. Rains, "A Domain By Any Other Name: Forging International

Solutions For the Governance of Internet Domain Names", 14 Emory Int‟l. L. Rev.

355 (2000). 14

947 F. Supp. 1227 (N.D. Ill. 1996), available at:

cyber.law.harvard.edu/metaschool/fisher/domain/.../interma.htm (visited on Nov. 30,

2009 at 1.30 p.m.). 15

141 F.3d 1316 (9th Cir. 1998), available at:

www.techlawjournal.com/courts/avery/19980417.htm (visited on Nov. 30, 2009 at

1.35 p.m.).

http://neiman-marcus.com/


84

brought an action under the Federal Trademark Dilution Act (FTDA).

The FTDA required the plaintiff to show that the trademark in

question is famous, that the defendant was using the mark in

commerce, that the mark became famous before the defendant started

using it, and that the "defendant's use of the mark dilutes the quality of

the mark by diminishing the capacity of the mark to identify and

distinguish goods and services."16

Toeppen argued that he was not

making commercial use of the name, as he was merely displaying

photographs on his web site. The court, however, decided that by

having offered the domain name for sale, Toeppen had shown his

intent to use the mark in commerce, which met the requirements for

use in commerce test. The court further remarked on the fact that a

domain name carried the reputation of a trademark.

In Intermatic, the court conceded that Toeppen was not using the

trademark in commerce, as he had merely registered it, but

nevertheless found infringement through dilution. Importantly, the

court in Intermatic recognized that if Toeppen were allowed to operate

the web site intermatic.com, Intermatic's "name and reputation would

be at Toeppen's mercy."

The rulings in Panavision and Intermatic affirmed that

"traditional" trademark and trademark dilution law applied in

cyberspace. It is not only the "unadulterated" trademark that can be

protected, but also any variation of it that is likely to confuse or

deceive, or in some way dilute the "distinctive quality" of the mark.

The Anticybersquatting Consumer Protection Act incorporates the

dilution and tarnishment provisions of the FTDA, but without the

FTDA's requirement for use in commerce. This significantly broadens

the concept of trademark infringement.

The threats that cybersquatters pose are significant and impact

businesses in numerous ways. First, cybersquatters interfere with

consumer behaviour. Cybersquatters have the effect of diverting the

consumer's attention away from the intended brand. Thus, in the

course of an electronic transaction, the potential consumer might either

end up making an alternative purchase with a competitor or might

forgo making a purchase altogether in frustration. Second,

16

Jeremy D. Mishkin, "Master of Your Domain - An Overview of the

Anticybersquatting Consumer Protection Act", 18 Communications Lawyer 3 (2000).


85

cybersquatters may create ongoing battles for businesses. For some

companies, the problem may not readily go away. For example, Mattel

is often in battles against cybersquatters (amongst other types of brand

abusers) who use its "Barbie" brand in relation to pornography and

escort service websites. Third, cybersquatters cause loss of revenue.

Not only is revenue lost as a result of consumers changing their buying

behaviour, but also when the ability of a business to engage in online

transactions is compromised.

IV. The U.S. Approach

In November 1999, the United States enacted the Anticybersquatting

Consumer Protection Act, 1999 (ACPA),17

an Internet specific

supplement to existing trademark law. The drafters intended the ACPA

to fill in the gaps of trademark law in order to address the newly

developed problem of cybersquatting. They were convinced that the

uncertainty as to the application of trademark law, inconsistent judicial

decisions, and the growing phenomenon of cybersquatting needed to

be remedied.18

The Act aids the trademark holders by increasing the

penalties for cybersquatting.19

The ACPA applies to all domain names registered before, on, or

and after its date of enactment, except that damages are not available

with respect to the registration, trafficking, or use of a domain name

that occurred before the law was passed.20

However, the statutory

language seemingly permits damage awards against domain name

registrants who continue to maintain and use improper domain names

after the effective date notwithstanding that the names were registered

prior to the enactment date.

17

U.S. Congress passed the Intellectual Property and Communications Omnibus

Reform Act of 1999 on Nov. 19, 1999 as part of a consolidated appropriations

package, which was signed by the President on Nov. 29, 1999. The relevant title

within this Act is called the Anti-Cybersquatting Consumer Protection Act. 18

Zohar Efroni, ―A Barcelona.com Analysis: Toward a Better Model for

Adjudication of International Domain Name Disputes‘, 14 Fordham Intellectual

Property, Media & Entertainment Law Journal 29, 53 (2003). 19

Lee B. Burgunder, Legal Aspects of Managing Technology 442 (South West

College Publishers, Ohio, 2nd

edn. 2001). 20

David W. Quinto, The Law of Internet Disputes 328 (Aspen Publishers, New

York, 2001)


86

Applying the ACPA to Cybersquatting

The ACPA applies to domain name registrant or the registrant‘s

authorized licensee that registers, traffics in, or uses a domain name

identical, confusingly similar to, or dilutive of a mark with a bad faith

intent to profit form that mark.21

In order to succeed under the ACPA, the plaintiff must establish

two elements. The first element considers whether the defendant

possessed bad faith intent to profit from the use of a protected name.

The second element considers whether the defendant registered or used

a domain name that (i) is identical or confusingly similar to a

distinctive mark or famous mark or (ii) is a trademarked word or

name. The ‗identical or confusingly similar‘ terminology parallels

general trademark theory.

The Act provides a non-exclusive, nine-factor test to determine

whether a registrar has acted in ‗bad faith‘. These factors are:22

The trademark or other intellectual property rights of the

person, if any, in the domain name

The extent to which the domain name consists of the legal

name of the person or a name that is otherwise commonly used

to identify that person

The person‘s prior use, if any, of the domain name in

connection with the bona fide offering of any goods or services

The person‘s bona fide noncommercial or fair use of the mark

in a site accessible under the domain name

The person‘s intent to divert consumers from the mark owner‘s

online location to a site accessible under the domain name that

could harm the goodwill represented by the mark, either for

commercial gain or with the intent to tarnish or disparage the

mark, by creating a likelihood of confusion as to the source,

sponsorship, affiliation, or endorsement of the site

The person‘s offer to transfer, sell, or otherwise assign the

domain name to the mark owner or any third party for financial

gain without having used, or having an intent to use, the

21

Ibid. 22

Sec. 1125(d)(1)(B) of ACPA.


87

domain name in the bona fide offering of any goods or

services, or the person‘s prior conduct indicating a pattern of

such conduct

The person‘s provision of material and misleading false contact

information when applying for the registration of the domain

name, the person‘s intentional failure to maintain accurate

contact information, or the person‘s prior conduct indicating a

pattern of such conduct

The person‘s registration or acquisition of multiple domain

names which the person knows are identical or confusingly

similar to marks of others that are distinctive at the time of

registration of such domain names, or dilutive of famous marks

of others that are famous at the time of registration of such

domain names, without regard to the goods or services of the

parties

The extent to which the mark incorporated in the person‘s

domain name registration is or is not distinctive and famous.

Bad faith intent will not be found if the court determines that the

person believed and had reasonable grounds to believe that the use of

the domain name was a fair use or otherwise lawful.23

In Morrison & Foerster v. Wick,24

the plaintiff was the proprietor

of the well-known and registered trade mark ‗Morrison & Foerster‘,

registered and used for legal services. The defendant,25

a

cybersquatter, registered the domain names „morrisonfoerster.com‘

and ‗morrissonandfoester.com‘. The web pages established for these

domain names contained a few slogans as well as a few hyperlinks to

other anti-Semitic and racist domain names such as

‗letsdosomeillegalsteroids.com‘ and ‗noirishneedapply.com‘. The

plaintiff contended that the defendant was guilty of trade mark

infringement and dilution and further violated provisions of the Anti-

Cybersquatting Consumer Protection Act. Although the court only

23

Ibid. 24

94 F. Supp. 2d 1125 (D. Colo. 2000), available at:

cyber.law.harvard.edu/ilaw/DomainNames/MorrisonFoerster.htm (visited on Nov.

11, 2009 at 10.30 a.m.). 25

When the proceedings were instituted against the defendant, he had already

registered the names of over 90 law firms as domain names.


88

dealt with the provisions of the act, the court‘s conclusions equally

apply to trade mark infringement and dilution proceedings.

The court firstly held that because ampersands cannot be used in

domain names, the defendant‘s disputed domain names were virtually

identical to the plaintiff‘s trade mark name. The court proceeded to

state that prejudice was present in that the defendant harmed the

plaintiff‘s goodwill by tarnishment. The court was further of the

opinion that the defendant‘s use of the disputed domain names

constituted commercial use.

In E&J Gallo Winery v. Spider Webs Ltd.,26

the plaintiff was the

owner of the well-known and registered trade mark ‗Ernest & Julio

Gallo‘, used and registered for the sale of beverages. The defendants,27

cybersquatters, registered the domain name ‗ernestandjuliogallo.com‘.

The plaintiff contended that the defendants were guilty of trade mark

dilution. When these proceedings were instituted, the defendants had

not yet established a web site for their domain name. However, during

the trial the defendants established a web site containing a number of

articles critical of alcohol consumption. The web site also commented

on the present trial proceedings.

The court, relying on the Intermatic v. Toeppen judgment, noted:

―‗ernestandjuliogallo.com‘ is displayed on every page printed off of

the web site accessed by that domain name and on the pages printed

off the SpinTopic web site when accessed by the same name. Hence,

as in Intermatic Inc., these facts are sufficient to show the likelihood of

dilution of Gallo‘s mark ... The value of a trademark is diluted when

the domain name does not belong to the company sharing that name

because potential customers ‗will be discouraged if they cannot find its

web page by typing ―plaintiff‘s name.com‖, but instead are forced to

wade through hundreds of web sites. Moreover, if defendants were

allowed to use ‗plaintiff‘s name.com‘, plaintiff‘s name and reputation

would be at defendants‘ mercy and could be associated with an

unimaginable amount of messages on defendants‘ web page.

Defendants‘ ownership of the domain name ‗ernestandjuliogallo.com‘

26

129 F. Supp. 2d 1033 (S.D. Tex. 2001), available at:

www2.bc.edu/~herbeck/cyberlaw.gallo.htm (visited on Nov. 12, 2009 at 11.30 a.m.). 27

When the proceedings were instituted against the defendants, they had registered

approximately 2000 domain names incorporating the trade names of third parties.


89

gives defendants exclusive control over the use of plaintiff‘s trademark

‗Ernest & Julio Gallo‘ on the Internet, effectively preventing plaintiff

from ensuring the ability of its mark to serve as a unique identifier for

its goods and services ... Defendants have effectively usurped

plaintiff‘s trademark, as plaintiff is not free to use its mark as its

domain name.‖

The case of Jack In The Box Inc. v. Jackinthebox.org28

is

instructive. The plaintiff was the owner of the registered trade mark

‗Jack in the Box‘, registered and used for fast food services. The

defendant registered the domain name ‗jackinthebox.org‘ and

‗jackinthebox.net‘, but created no web sites for these domain names.

The question arose whether the defendant was using these domain

names in commerce, for the purpose of trade mark infringement. The

Court, after holding that the domain name in question would lead to

confusion, mistake or deception,29

answered this question in the

affirmative:

“The act of registration was in connection with the sale of the right

to use the domain name, arguably either a good or service. This sale

(from the domain name registrar to the unknown registrants)

constituted „use in commerce.‟ A domain name registrant need not

actually develop a working website for the illegal use of the mark to

constitute commercial use. The act of registering a domain name is a

commercial act because it involves a sale between the registrant and

the registrar. The infringing domain name is used in this commercial

act because it itself becomes the good or service that is sold. It thus

meets the definition of „use in commerce‟ under 15 U.S.C. § 1127, 15

U.S.C. § 1114(l)(a), and 15 U.S.C. § 1125.”30

However, that an Internet domain name resembles a famous

trademark does not, in and of itself, establish bad faith for purposes of

the Act. e.g., In Interstellar Starship Services Ltd. v. Epix Inc.,31

a

28

143 F Supp. 3d 590 (E.D. Va. 2001), available at:

http://www.finnegan.com/JackInTheBoxIncvjackintheboxorg (visited on Nov. 15,

2009 at 3.20 p.m.). 29

Id at 592. 30

Ibid. 31

304 F. 3d 936 (9th Cir. 2002), available at:

cyber.law.harvard.edu/property00/domain/Interstellar.html (visited on Nov. 15, 2009

at 3.30 p.m.).


90

computer enthusiast did not have ―bad faith intent‖ to profit from

―Epix‖ trademark when he obtained ―epix.com‖ domain name, for

purpose of claim under ACPA, even though enthusiast offered to sell

domain name to trademark holder. The offer was in context of

settlement negotiations and offer was in context of investment that

enthusiast had already invested in website‘s non-infringing content,

offer was made by enthusiast‘s attorney, enthusiast performed web

search on ‗Epix‘ before registering ‗epix.com‘ and did not find any

such site, and enthusiast adopted domain name as descriptive term to

connote electronic pictures.

In rem Actions

An innovative feature of the ACPA is that it enables in rem

jurisdiction in domain name disputes - this means that the trademark

owner does not have to sue the domain name owner personally, but

can take action against the domain name itself.32

This provision

recognizes that cybersquatters frequently give out false contact

information, presumably in anticipation of possible law suits.

Normally, in U.S. law, a person who cannot be located cannot be sued.

And since domain name registrars are not liable for registering domain

names that infringe trademarks33

the fact that the registrant cannot be

located would be prejudicial to the rights of the trademark owner to

claim infringement.

The ACPA provides that a mark owner may bring an in rem action

against a domain name in the judicial district in which the domain

name registrar, domain name authority that registered or assigned the

domain name is located, if the domain name violates any right of the

owner of a mark registered in the Patent and Trademark Office or

protected under Sec. 43(a) or (c) of the Lanham Act, 1946.34

Alternatively, the ACPA provides that an in rem action may be

32

S. 1125 (d) (2)(A) of ACPA states: "The owner of a mark may file an in rem civil

action against a domain name in the judicial district in which the domain name

registrar, domain name registry, or other domain name authority that registered or

assigned the domain name is located". 33

Lockheed Martin Corp v. Network Solutions Inc., 985 F. Supp. 949 (C.D. Cal.

1997). 34

S. 1125(a) of ACPA.


91

brought where documents sufficient to establish control and authority

regarding the disposition of the registration and use of the domain

name are deposited with the court.35

This suggest that an in rem action

could be brought anywhere based on the declaration that a registrant

must provide after receiving a file-stamped copy of a complaint

involving a domain name.36

The declaration purports to deposit control

over the domain name with the court and can be filed by either party.

Thus, to take advantage of the in rem provision the trademark

owner must take steps to satisfy the courts that the registrant cannot be

found. For straightforward cybersquatting offences the in rem

provision is useful.

V. The Uniform Dispute Resolution Policy (UDRP) Approach

Like the Courts, the registering authorities have had to react to

cybersquatting and have been extremely pro-active in terms of

implementing measures aimed to counteract it, partly maybe in their

attempts to avoid liability themselves.37

The Internet Corporation for

Assigned Names and Numbers (ICANN), the body the U.S.

government tasked with governing the Internet domain name system,

adopted the Uniform Dispute Resolution Policy (UDRP) 38

on August

26, 1999, and was implemented on October 24, 1999. The UDRP is

designed to solve disputes between a trademark owner and a domain

name registrant. These disputes arise when the registrant has registered

a domain name identical or confusingly similar to the trademark, the

registrant has no rights or legitimate interests in the name, and the

registrant has registered and used the domain name in bad faith.39

The

UDRP does not deal with conflicts between two trademark holders or

between a trademark holder and a registrant with rights or legitimate

interests. In particular, the UDRP does not apply if the registrant has

35

S. 1125(d)(2)(C) of ACPA. 36


Mairead Moore, ―Cybersquatting: Prevention Better Than Cure?‖, 17 International

Journal of Law and Information Technology 220,226 (2008). 38

The full text of the UDRP is available at:

http://www.icann.org/en/dndr/udrp/policy.htm (visited on Nov. 11, 2009 at 2.30

p.m.). 39

Para. 4(a) of UDRP.


92

been known by the name, has used it in connection with a bona fide

offering of goods or services, or has used it for a legitimate non-

commercial purpose.40

The UDRP proceedings are conducted by the ICANN approved

service providers. There are presently four approved dispute resolution

service providers that are accepting complaints.41

Each provider

follows the UDRP as well as its own supplemental rules. These are

World Intellectual Property Organization (WIPO),42

National

Arbitration Forum (NAF),43

Asian Domain Name Dispute Resolution

Centre (ADNCRC)44

and Czech Arbitration Court (CAC).45

The UDRP has proven successful in providing a low-cost

alternative means of resolving disputes involving the bad faith

registration of trademarks or variations thereof as Internet domain

names.46

It was drafted narrowly for the purpose of combating the

Internet phenomenon known as cybersquatting. The effect of the

policy is that the status of the dispute resolution procedure is made

compulsory on the premise that it is incorporated into the contract at

the registration stage. This means that in the case of a dispute while the

applicant is not bound, the defendant is bound to acknowledge the

procedure and submit to it as part of the contract they sign in

registering the domain.

Any aggrieved person may initiate the UDRP procedure by

asserting that the following three criteria are satisfied in relation to the

disputed domain: 47

The domain name in question is identical or confusingly similar

to a trademark or service mark in which the applicant has

rights;48

and

40

Para. 4(c) of UDRP. 41

The list of present and former approved providers for UDRP is available at

http://www.icann.org/en/dndr/udrp/approved-providers.htm (visited on Nov. 11,

2009 at 2.45 p.m.). 42

Approved on Dec. 01, 1999. 43

Approved on Dec. 23, 1999. 44

Approved on Feb. 28, 2002. 45

Approved on Jan. 23, 2008. 46

Nicholas Smith and Erik Wilbers, ―The UDRP: Design Elements of an Effective

ADR Mechanism‖, 15 The American Review of International Arbitration 215 (2004). 47

Supra note 40. 48

A complainant may show trademark rights through formal registration or through

use, in other words, common law rights.


93

The domain holder has no rights or legitimate interests in the

domain;49

and

The domain has been registered and is being used in bad

faith.50

This is also known as the 'cybersquatting test'. Although the policy

requires proof of all these three elements, in practice, the complainant

will establish trademark or common law rights in the domain name,

and generally, that the registrant operated in bad faith.51

The registrant

may, however, have the burden of showing legitimate interests in the

domain name, and of establishing good faith. UDRP considers a web

site used for the purposes of determining whether a cybersquatter has

infringed on the domain name, even if the name was registered, but

never developed into a functioning web site.

It is the second and third elements that distinguish the UDRP from

the trademark law, and therefore these are the most important aspects

of the Policy. The Policy includes a non-exhaustive list of factors

indicative of each of the existence of a legitimate interest and the

presence of bad faith. It is noteworthy to refer to paragraph 4(b) of the

UDRP, which addresses circumstances which connote bad faith:

(i) The domain name has been acquired principally for the purpose of

selling it; or

(ii) The registration is designed to prevent a trademark holder from

using it in a domain name; or

(iii) The registration is designed to disrupt the business of a competitor;

or

49

A registrant may demonstrate this in one of three ways. First, the registrant, before

notice of the dispute can use the domain name "in connection with a bona fide

offering of goods or services." Alternatively, registrants can establish they have been

"commonly known by the domain name," even if the registrant did not acquire

trademark or service mark rights. Finally, registrants can fulfill this element by

making "a legitimate non-commercial or fair use of the domain name, without intent

for commercial gain to misleadingly divert consumers or to tarnish" the mark. 50

There are several ways for the complainant to demonstrate bad faith. e.g., if the

web site is used for the purpose of selling, rendering, or transferring goods; if the

registrant is preventing a mark owner from using the mark in a domain name; if the

registrant intended to disrupt a competitor's business or if the registrant is creating

confusion for commercial gain, etc. 51

Leah Phillips Falzone, ―Playing the Hollywood Name Game in Cybercourt: The

Battle Over Domain Names in the Age of Celebrity-Squatting‖, 21 Loyola of Los

Angeles Entertainment Law Review 289, 304 (2001).


94

(iv) The use of the domain name is intended to confuse the public or

divert users away from the trademark holder‘s web site.

Thus, in procedural terms, in order to initiate proceedings, the

burden is on the complainant to demonstrate in their application for

proceedings that certain requirements in the Policy are met. To

demonstrate these requirements are met, it appears that the threshold is

set at a low level, with practices showing a track record of purchasing

followed by offering domains for sale, clearly establishing the bad

faith element.

In terms of remedies available, Section 4(i) of the UDRP only

allows the complainant to apply for cancellation or transfer of the

domain as the UDRP doesn't have provision for damages. Where the

complainant wins, the transfer of the domain name will take place 10

days after the decision is issued unless the panel is informed by the

defendant that they are initiating court proceedings on the matter.

Some Important Decisions under UDRP

World Wrestling Federation Entertainment Inc. v. Michael Bosman:52

This was the first case decided under the UDRP by WIPO. The

proceedings were initiated on Dec. 09, 1999. The respondent had

registered the domain anme ‗worldwrestlingfederation.com‘ for a term

of two years from Oct. 7, 1999. The complainant provided evidence of

its service mark and trademark ‗World Wrestling Federation‘.

The respondent had registered the domain name and within three

days had offered the same for sale. The complainant contended that the

respondent had registered as a domain name a mark which is identical

to the service mark and trademark registered and used by the

complainant and that the respondent had no rights or legitimate

interests in respect of the domain name at issue, and that the

respondent had registered and was using the domain name in bad faith.

the respondent did not contest the allegations of the complainant.

It was found that because respondent offered to sell the domain

name to the complainant for valuable consideration in excess of any

52

WIPO case no. D99-0001, decided on Jan. 14, 2000. Complete text of the decision

available at: http://www.wipo.int/amc/en/domains/decisions/html/1999/d1999-

0001.html (visited on Nov. 12, 2009 at 12.30 p.m.).


95

out of pocket costs directly related to the domain name, responded

used the domain name in bad faith as required under para. 4(b)(i) of

the UDRP of the UDRP. Therefore, the Panel required that the

registration of the domain name ‗‗worldwrestlingfederation.com‘ be

transferred to the complainant.

Backstreet Productions Inc. v. John Zuccarini:53

In this case, the domain names in dispute were

‗backstreeboys.com‘, ‗backsreetboys.com‘, ‗backstreetboyspics.com‘,

‗backstreetboyspictures.com‘, ‗bakstreetboys.com‘,

‗backstretboys.com‘, ‗bacstreetboys.com‘, ‗backtreetboys.com‘,

‗backstreetsboys.com‘, ‗backsteetboys.com‘, and

‗backstreetboyz.com‘. The Backstreet Boys are a well-known pop

singers band. Over the years, they have licensed a wide range of

products bearing their trademark, including posters, watches,

backpacks, musical products, live concert photos, etc., which are

projected to result in over twenty million dollars in revenue. They

operate a website at ‗backstreetboys.com‘. The respondent was never

licensed by the complainant to use the ‗Backstreet boys‘ trademark.

He did not offer any goods or services through the websites he

established with the above-mentioned domain names.

The panel found that the domain names were virtually identical

and confusingly similar to the trademark, respondent‘s use of the

domain names did not give him a legitimate interest in the domain

names, and respondent did register and use the domain names at issue

in bad faith. After concluding that all the requirements of para 4(a) of

the UDRP have been fulfilled, the panel, pursuant to para. 4(i) of the

UDRP, held that the registration of the domain names at issues be


Advantages of UDRP

The UDRP, as operated by WIPO and other Approved Providers, is

very popular. The procedure is quicker and cheaper than normal

53

WIPO case no. D2001-0654, decided on Aug. 24, 2001. Complete text of the

decision available at:

http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-0654.html.html

(visited on Nov. 12, 2009 at 12.50 p.m.).


96

litigation. The jurisdiction is international in nature.54

In the traditional

court system, it is difficult to gain jurisdiction over a party in another

country. For example, under the ACPA, a complainant must file in a

court having jurisdiction where the registrant or registry is located.

UDRP alternatively, is international.

Unlike courts of law, some panels are comprised of experts in

"international trademark law, electronic commerce, and Internet-

related issues." While this does not guarantee success, one can expect

heightened familiarity with intellectual property principles and more

consistent decisions from the panels than from courts spanning the

globe.

As one country's trademark laws may not be enforceable in another

country, international complainants may encounter problems enforcing

their own country's laws in traditional courts However, under the

UDRP, any country submitting to the convention must enforce the

decision under UDRP regardless of its particular laws. Furthermore,

complainants from countries other than the United States will benefit

from this procedure. Canada, for example, does not have

cybersquatting laws.

Overall, by providing a quick and relatively inexpensive means to

resolve clear-cut cases of cybersquatting, the UDRP serves a useful

function. The UDRP is a unique creation, able to operate as a

successful international dispute resolution system despite the

challenges of distance, jurisdiction, and a rapidly changing business

environment.55

It has achieved this through a combination of design

elements that encourages efficiency and effectiveness while

maintaining the fairness essential to the credibility and enforceability

of any dispute resolution system.56

VI. The Indian Approach

In India, there is no legislation which explicitly refers to dispute

resolution in connection with cybersquatting or other domain name

54

David Kitchen, David Llewelyn, et. al. (eds.), Kerly‟s Law of Trade Marks and

Trade Names 733 (Sweet & Maxwell, London, 14th

edn., 2005). 55

Jeffrey M. Samuels and Linda B. Samuels, ―Internet Domain Names: The Uniform

Dispute Resolution Policy‖, 40 American Business Law Journal 885 (2003) at 903. 56

Ibid.


97

disputes.57

The Trade Marks Act, 1999 sought to be used for

protecting use of trademarks in domain names is not extra-territorial,

therefore, it does not allow for adequate protection of domain names.

The Supreme Court has taken the view that domain names are to be

legally protected to the extent possible under the laws relating passing

off. In India, this law was evolved by judges and all the High Courts

were of unanimous opinion, which has been culled out and endorsed

by the Supreme Court. A look at the observations of courts as to

various facets of the disputes involving domain names shall be useful.

Some Important Decisions of the Indian High Courts regarding

Cybersquatting

Yahoo! Inc. v. Akash Arora & Anr.:58

In this case, a single judge of the Delhi High Court granted relief

on Yahoo! Inc.‘s petition seeking injunctive relief against the

defendants who were attempting to use the domain name

‗yahooindia.com‘ for Internet related services.

Yahoo! Inc., which was the owner of the trademark ‗Yahoo!‘ as

well as the domain name ‗yahoo.com‘, contended that, by adopting the

deceptively similar domain name ‗yahooindia.com‘, the defendants

had verbatim copied the format, contents, layout, colour scheme and

source code of the plaintiff‘s prior created Regional Section on India at

the plaintiff‘s website. The plaintiff had been using regional names

after ‗yahoo‘ like ‗yahoo.ca‘ for Canada. Hence, ‗yahooindia.com‘

could be perceived as being another one in the series of ‗yahoo‘ sites.

The Court rejected the argument of the defendants that the

provisions of the Indian Trademark Act would not be attracted to the

use of a domain trade name or domain name on the Internet. It was

held that although service marks are not recognized in India, services

rendered are to be recognized for actions of passing off. Therefore, the

decision of the court treated the matter as one of ‗passing off‘. Relying

on the doctrine of passing off, combined with the analysis of the

working of the Internet, the court concluded that even though the word

57

Ashwani K. Bansal, Law of Trademarks in India 642 (Centre for Law, Intellectual

Property & Trade, New Delhi, 2nd

edn., 2006). 58

(1999) 19 PTC 201 (Del).


98

‗yahoo‘ was a dictionary word, it has achieved distinctiveness and is

associated with the plaintiff company and hence is entitled to

maximum protection. As a result, the Court granted an injunction

restraining the defendants from dealing in service or goods on the

Internet or otherwise under the domain name ‗yahooindia.com‘ or any

other domain name that is identical to or deceptively similar to the

plaintiff‘s trademark ‗yahoo‘.

Rediff Communication Ltd. v. Cyberbooth and Anr.:59

The plaintiff in this case, the owner of the well-known portal and

domain name ‗rediff.com‘, filed for injunction against the defendant,

the registrant of the domain name ‗radiff.com‘, claiming that such

domain name was deceptively similar to theirs. the plaintiff alleged

that the defendants had adopted the word ‗radiff‘ as part of their

trading style deliberately with a view to pass of their business services

as that of the plaintiffs. The petitioner also contended that this was

deliberately done by the Cybertooth to induce members of the public

into believing that Cybertooth is associated with Rediffusion group,

and thereby to illegally trade upon the reputation of the plaintiff.

The court established that ‗rediff‘ was a coined name and at the

same time the contention of the defendants that the word ‗radiff‘ was

coined by taking the first three letters of the word ‗radical‘, the first

letter of the word ‗information‘, the first letter of the word ‗future‘ and

the first letter of the word ‗free‘, as making no sense. It held that there

is every possibility of the internet user getting confused and deceived

in believing that both domain names belong to one common source

and connection although the two belong to two different persons. The

court was satisfied that the defendants had adopted the domain name

‗radiff‘ with the intention to trade on the plaintiff‘s reputation and

accordingly the court prohibited the defendant from using the same

domain name.

Acqua Minerals Ltd. v. Parmod Borse:60

In this case, the plaintiff, Acqua Minerals Ltd., had sought a

decree for permanent injunction restraining the defendants from using

59

AIR 2000 Bom 27. 60

(2001) 21 PTC 619 (Del).


99

the mark ‗bisleri‘ and/or ‗bisleri.com; as part of their domain name or

in any other manner whatsoever for any products, goods or services

which would result in passing off, infringement or copyright and

directing them to transfer the domain name ‗bisleri.com‘ to the

plaintiff.

The court held that it is obvious and self-axiomatic that the

domain name ‗bisleri.com‘ was used by the defendants with mala fide

and dishonest intention and as a blocking or squatting tactics. It was

found that they were using the domain name in order to trade in it and

to pressurize the plaintiff to part with huge sums of money for the

same. The act of the defendant was held as not only constituting the

infringement of the plaintiff‘s right but it also constitutes passing off

act as it is likely to result in the dilution of the trade mark ‗bisleri‘ as

the plaintiff had no control over the use of the said domain name

inspite of the fact that the trademark ‗bisleri‘ is the exclusive trade

mark of the plaintiff.

Pen Books Pvt. Ltd. v. Padmaraj:61

The court in this case said that absence of registration of trade

mark would not stand in the way of a claim for passing off in respect

of ‗Penbooks‘. Though the two words ‗pen‘ and ‗books‘ are generic in

nature, when combined as ‗Penbooks‘, they get an identity and

distinctiveness attached to plaintiff‘s establishment for years.

The High Court found a prima facie and balance of convenience in

favour of the plaintiff and held that injunction is rightly granted by

trial court, but the condition for deposit of a sum was held to be

unwarranted and was deleted. Plaintiff were engaged in printing and

publishing industry under the trade name ‗Penbooks‘ since 1997 and

getting its website ‗penbooks.com‘ registered on the internet. The

defendant registering the domain names ‗penbooks.com‘, in 1999 and

attempting to launch a website but not started any publication in the

said name, amounted- to ‗cyber squatting‘.

Supreme Court decision in Satyam Infoway Ltd. v. Siffynet (P)

Ltd.62

61

(2004) 29 PTC 37 (Ker). 62

(2004) 6 SCC 145.


100

The Supreme Court of India has noted the proliferation of disputes

resulting in litigation before different High Courts.63

The case of

Satyam Infoway Ltd. v. Siffynet (P) Ltd.64

is the first one from the

Court to deal with the legal protection of domain names and has given

seal to the law laid down by the various High Courts that the domain

names are entitled to legal protection equal to that of a trademark.

The principle question raised in this case was whether internet

domain names are subject to legal norms applicable to other

intellectual properties such as trademarks.

The appellant which was incorporated in 1995 registered several

domain names like ‗www.sifynet.com‘, ‗www.sifymall.com‘,

‗www.sifyrealestate.com‘, etc. in June 1999 with the internationally

recognized Registrars, viz., the ICANN and the WIPO. The word

'Sify‘ is a coined word which the appellant claims to have invented by

using elements of its corporate name, Satyam Infoway. The

Respondent, on the other hand, started carrying on business of Internet

marketing under the domain names ‗www.siffynet.net‘ and

‗www.siffynet.com‘ from June 2001.

After reiterating the principles of passing off, the Court observed

that:65

―The use of the same or similar domain name may lead to a

diversion of users which could result from such users mistakenly

accessing one domain name instead of another. This may occur in e-

commerce with its rapid progress and instant (and theoretically

limitless) accessibility to users and potential customers and

particularly so in areas of specific overlap. Ordinary consumers/users

seeking to locate the functions available under one domain name may

be confused if they accidentally arrived at a different but similar

website which offers no such services. Such users could well conclude

that the first domain name owner had misrepresented its goods and

services through its promotional activities and the first domain owner

would thereby lose their custom. It is apparent therefore that a domain

name may have all the characteristics of a trade mark and could found

an action for passing off.‖

63

For the list of cases, see supra note 57 at 645. 64

Supra note 62. 65

Id. at 151.


101

The Court further held that ―a domain name is accessible by all

internet users and the need to maintain an exclusive symbol for such

access is crucial… Therefore a deceptively similar domain name may

not only lead to a confusion of the source but the receipt of unsought

for services.‖ The court observed that ―It may be difficult for the

appellant to prove actual loss having regard to the nature of the service

and the means of access but the possibility of loss in the form of

diverted customers is more than reasonably probable.‖

Commenting on the issue of passing off, the court observed that ―it

is an action not only to preserve the reputation of the plaintiff but also

to safeguard the public.‖ The court held that ―the appellant is the prior

user and has the right to debar the respondent from eating into the

goodwill that it may have built up in connection with the name.‖

In view of the decisions of the various High Courts, it was held

that the domain names are entitled to legal protection equal to that of a

trademark. The Court held that the appellant had been able to establish

the goodwill and reputation claimed by it in connection with the trade

name ‗Sify‘. Apart from the close visual similarity between ‗Sify‘ and

‗Siffy‘, the Court held that there was a phonetic similarity between the

two names as well. The addition of ‗net‘ to ‗Siffy‘ did not detract this

similarity.

The Court concluded that in view of finding of prima facie

dishonest adoption of the appellant‘s trade name by the respondent, the

investments made b y the appellant in connection with the trade name,

and the public association of trade name ‗Sify‘ with the appellant, the

appellant was entitled to the relief it claimed.

Indian Domain Name Dispute Resolution Policy

‗.in‘ is India‘s Top Level Domain (TLD) on internet. INRegistry is

the official .IN registry. It was appointed by the government of India,

and is operated under the authority of NIXI, the National Internet

eXchange of India. The Government decided to revamp the

administration of the .IN registry in late 2004. INRegistry has assumed

responsibility for the registry from the previous registry authority, The

National Centre for Software Technology (NCST) and its Centre for

Development of Advanced Computing (C-DAC).


102

The registry has published the .IN Dispute Resolution Policy

(INDRP). It has been formulated in line with internationally accepted

guidelines, and with the relevant provisions of the Indian IT Act 2000.

There are two documents that all parties in a dispute should read

carefully:

1. The .IN Domain Name Dispute Resolution Policy (INDRP):66

This document explains what types of disputes can be brought,

and the criteria that will be considered by the arbitrators.

2. The INDRP Rules of Procedure:67

These Rules describe how to

file a complaint, how to respond to a complaint, the fees,

communications, and the other procedures that will be used.

In Rediff.com India Limited v. Abhishek Verma,68

the respondent

had registered the trademark ‗rediff.in‘. the complainant contended

that the domain name was identical or confusingly similar to its

trademark ‗rediff‘ and controlled domain names ‗rediff.com‘,

‗rediff.co.in‘ and ‗rediffindia.com‘. The expert found that the

respondent, had registered domain name before the Complainant,

forselling, renting or otherwise transferring the same for monetary

gains over and above documented registration expenses. Thus, labeling

this case as that of cybersquatting, it was held that the domain name be


This case is an example of how the cybersquatting cases relating to

‗.in‘ domain names are decided under the INDRP.

VII. Suggestions for Reforms in the Indian Law Regarding

Cybersquatting

The disputes between trademarks and domain names present unusual

66

Full text available at: http://www.inregistry.in/policies/dispute_resolution/indrp

(visited on Nov. 09, 2009 at 5.30 p.m.). 67

Full text available at:

http://www.inregistry.in/policies/dispute_resolution/indrp_rules (visited on Nov. 09,

2009 at 5.45 p.m.). 68

Decision available at:

http://www.inregistry.in/policies/dispute_resolution/dispute_decisions/rediff.pdf

(visited on Nov. 09, 2009 at 6.20 p.m.).


103

features that are currently stretching the capacity of Indian judiciary to

its limits. In certain cases, the global dimensions of domain name

disputes have made it difficult for Indian courts to come up with

comprehensive solutions to combat the cybersquatting menace.

Some of the suggest reforms in the India law to tackle the problem of

cybersquatting are:

Need for a new legislation in India in lines with ACPA and UDRP

There is no legislation in India which explicitly refers to dispute

resolution in connection with domain names. The existing laws

concerning trademark infringement do not adequately protect

trademark holders against cybersquatters. The Indian courts have been

relying on the Trade Marks Act, 1999 (before 1999 on Trade and

Merchandise Marks Act, 1958) and the Information Technology Act,

2000 to deal with the growing problem of cybersquatting. But, both

these legislations fall short in providing an effective protection to

domain names in India.

The trademarks law is not amply outfitted to deal with the whole

range of disputes constantly emerging with respect to the misuse and

abuse of domain names by cybersquatters. Resorting to trademark law

is a time-consuming method and is not very feasible in a market as

innovative as the Internet.69

The Information Technology Act, 2000 regulates to a large extent

cyber crimes and electronic signatures, but it does not cover all aspects

of information technology and it leaves an important area - Intellectual

Property Rights (IPRs), specifically in respect of Internet-related

activities. The Act also does not contain any provisions with regard to

cybersquatting, which is growing in prevalence by the day as has been

discussed in the aforementioned cases.

In many situations, the Indian courts have to seek guidance from

English and American laws and decisions, which really makes it

pertinent to make a new legislation of its own, just like ACPA in the

69

Adam Silberlight, ―www.how to be a master of your domain.com: A Look at the

Assignment of Internet Domain Names under Federal Trademark Laws, Federal

Case Law and Beyond‖, 10 Albany Law Journal of Science & Technology 278

(2000).


104

US which has resulted in significantly controlling cybersquatting

there.

It has become important for India to legislate a law like ACPA of

US, and which necessarily conforms to the international standards laid

down in the UDRP.

Setting up of an independent adjudicatory body dealing with

domain name disputes in India

There is a need for setting up an independent adjudicatory authority

that shall be able to decide cases relating to domain name disputes,

especially cybersquatting in India. The setting up such bodies has

proved effective in many countries like US (National Arbitration

Forum) and Czech Republic (Czech Arbitration Court).

Setting up such an independent judicial body to tackle the domain

name disputes, especially cybersquatting, shall prove less time

consuming, more expedient and more effective, as the parties will not

have to wait to get onto a docket, then for a trial, then for an outcome.

Making INDRP more effective

The INDRP which deals with ‗.in‘ domain name disputes needs to be

further strengthened and given the effect of a law. The policy, since

not being in the shape of a law, is not mandatory to be followed. The

inconsistency between the INDRP and the UDRP needs to be removed

The UDRP and the INDRP differ on the domain names in many

places. Thus to make INDRP more effective, it has to be made more

compliant to the UDRP, and be given the shape of a law.

VIII. Conclusion

The problem of cybersquatting is escalating globally and even in India.

Trademark and service mark owners need to be able to protect their

marks as domain names from others who register and use the mark in

bad faith. As a preliminary matter, the owner must first discover that

its mark is being used in an Internet address. An inexpensive way to do

this is simply to use a search engine to discover web pages using the


105

mark. Making detection even easier, one domain name registrar offers

a service that will report cybersquatting or any trademark being used

in hidden or overt ways.

After analyzing various approaches relating to cybersquatting, it is

clear that two methods have developed in the form of dispute

resolution by the regulatory authorities and the formal legal or court

procedure. The majority of authorities has either implemented the

UDRP or has implemented one closely modeled on it. This is indeed a

very effective method of curbing cybersquatting, though it requires

changes with time. And then observing at how the courts have reacted,

it is clear that the picture is altogether different. While some countries

have implemented cybersquatting specific legislation, others have

reacted rather indolently by simply applying trademark laws

inappropriately.

Finally, in the light of still increasing rate of cybersquatting in

India and other countries, it is important to make a concerted effort by

registrars to address and curb it at the registration level itself. This is

indeed going to be prove beneficial in controlling cybersquatting, just

like in real world the squatters have finally given up their practice with

stringent property laws in force.

Freedom of Religion and Anti Conversion Laws [Vol. 1 : 1

106

NOTES

FREEDOM OF RELIGION AND ANTI CONVERSION LAWS

IN INDIA: AN OVERVIEW

I. Introduction

THE FIRST decade of the 21st century with all its grandeur and

technological advancements would best be remembered for the revival

of religion in politics across the globe. It has become impossible to

divorce religion from modern political structure, be it India or the

world. There never was a word, more responsible, in history, for

causing such amount of disruption in society than 'Religion'. Passion

defies logic and emotion overpowers reason, when the subject of

discourse is religion and when there is a question of conversion

involved, the complexity and peculiarity of the situation gives the

issue a dynamic character. Ours is a nation where politics is wedded to

religion. The very first war of independence, 1857, some say was

purely fought on religious grounds. One cannot forget the fact that 62

years back, two independent states were born because of this politics

of religion. The forefathers of our Constitution were well aware of

dangers of religious arsenal in politics and therefore made sufficient

safeguards to ensure that the life of nation marches ahead on a secular

edifice.

Our constitution stands on the bedrock of secularism though

nowhere in the original constitution the word ‗secularism‘ was

mentioned.1 Indian political circuit, in recent times has seen the

dirtiest forms of politico-religious quagmires. With five states of the

Indian Union2 making laws regulating religious conversions in a span

1 42

nd Constitutional Amendment Act inserted the word ‗Secularism‘ to the

Preamble. 2 Tamil Nadu with The Tamil Nadu Prohibition of Forcible Conversion of Religion

Act, 2002 (repealed by Act no. 10 of 2006), Gujrat with Gujrat Freedom of Religion

Act, 2003, Rajasthan with Rajasthan Freedom of Religion Act, 2006, Himachal

Pradesh with Himachal Pradesh Freedom of Religion Act, 2006, Chhattisgarh with

The Chhattisgarh Dharma Swatantraya Adhiniyam, 1968( Chhattisgarh after the

formation of the state in 2000 adopted the Madhya Pradesh Act by virtue of power

conferred under section 79 of the M.P. Reorganization Act, 2000. The 1968 Act


107

of seven years, adding to existing three state laws,3 and palpable

apprehension in the atmosphere could well be sensed. It is to be noted

here that anti conversion laws are not a new phenomenon and though

they have become more politicised and negatively publicized after the

series of new state legislations they were very much in existence even

prior to Independence.

Religious conversions have been debatable since time immemorial

but has gained grave importance in modern day context when religion

is getting more and more intrinsically mired in the lives of people in

general as well as in the policy making process of nations. Before

analyzing the constitutionality of the various anti-conversion laws

euphemistically called as ―Freedom of Religion Act‖, we shall first

look in to the scope and ambit of freedom of religion.

II. Freedom of Religion: Scope and Ambit

All across the civilized states, freedom of religion and belief is

considered to be a basic human right. Article 18 of the Universal

Declaration of Human Rights4 guarantees everyone right to freedom of

thought, conscience and religion which includes freedom to change

religion and belief. As a democratic republic, India, giving weightage

to its secular credentials, too has guaranteed all persons equally

freedom of conscience, profession, practice and propagation of

religion.5

Freedom of religion and conscience is considered as being vital to

every democratic constitution. The freedom in civilized countries

today extends not merely to holding of particular beliefs but to the

however is now amended by the Chhattisgarh Dharma Swatantraya (Sanshodhan)

Adhiniyam, 2006). 3 Orissa Freedom of Religion Act, 1967; Madhya Pradesh Dharma Swatantraya

Adhiniyam, 1968; Arunachal Pradesh Freedom of Religion Act, 1978. 4 Art. 18 of the Universal Declaration of Human Right (UDHR) declares the freedom

of religion in the following terms: ―Everyone has the right to freedom of thought,

conscience and religion; this right includes freedom to change his religion or belief,

and freedom, either alone or in community with others and in public or private, to

manifest his religion or belief in teaching, practicing, worship and observance.‖ 5 Art. 25 of the Constitution of India.


108

absence of belief in religion.6 Religion and thought constitute the most

intrinsic part of man‘s nature and any interference with the free

exercise thereof would be experienced as a grave violation of an

inherent human right. The freedom to hold beliefs of one's choosing

and to change them is central to human development. It is the

individual's search for meaning and the desire to know who we are as

human beings.7

Freedom of religion, thus, features in various international

documents8 like Universal Declaration of Human Rights, International

Covenant on Civil and Political Rights, Declaration on Elimination

Based on Religion or Belief, European Convention for the protection

of Human Rights, American Convention of Human Rights, and the

African Charter. It is pertinent to note here that pursuant to article 4(2)

of ICCPR and article 27(2) of American Convention, the guarantee of

religious freedom is non dirigible (i.e., not capable of being suspended

at any time) under any circumstances including war.

Article 25-28 of the Indian Constitution confers certain rights

relating to freedom of religion to ‗all persons‘ in India. Article 25(1)

guarantees to every person freedom of ‗conscience‘, right to ‗profess‘,

‗practice‘ and ‗propagate‘ religion.

―Conscience‖ refers to a man‘s subjective sense of right or wrong.

Freedom of conscience means that a person is free to entertain any

belief or doctrine regarded by him as conducive to his spiritual well

being. This implies that the state cannot enquire into or take notice of a

man‘s religious or moral beliefs. Freedom of conscience allows a

person to believe in a particular religious tenet of his choosing. This

freedom is quite distinct from the freedom to perform external acts in

pursuance of that faith.

6 Faizan Mustafa and Anurag Sharma, Conversion: Constitutional and Legal

Implications 7 (Kanishka Publishers, New Delhi, 2003). 7 Perspective: Cultural Liberty and Freedom of Belief, available at:

http://www.onecountry.org/e171/e17102as_ Perspective_Belief.htm (as visited on

Nov. 11, 2009 at 11.30 am). 8 Art. 18 UDHR, art. 18 International Covenant on Cultural and Political Rights

(ICCPR), art. 1 of Declaration on Elimination Based on Religion or Belief, European

Convention for the Protection of Human Rights, art. 9 of European Convention on

Human Rights (ECHR), art. 12 of American Convention on Human Rights, art. 8 of

African Charter of Human and Peoples Rights.


109

Comparing article 25 with other international documents we do

realise that although religious freedom is guaranteed to an individual

as well as groups and denominations but this right is not absolute and

subject to certain limitations.

But whereas the freedom of conscience is concerned no restriction

of any kind can be imposed upon man‘s inner thoughts, moral

consciousness or his belief towards God, for the simple reason that it is

not humanly possible to do so. One cannot be forced to believe or

disbelieve. Human mind is an enigma. It is hard to read and harder to

understand. It is not possible for any individual let alone state to curb

or to put restraints on human thought and any act attempting the same

is a grave violation of inherent individual freedom.

The Humans Right Committee in its 48th

session while discussing

article 189 of the ICCPR in its para 3 stated that article 18

distinguishes the freedom of thought, conscience, religion or belief

from the freedom to manifest religion or belief. It does not permit any

limitations whatsoever on the freedom of thought and conscience or on

the freedom to have or adopt a religion or belief of one's choice. These

freedoms are protected unconditionally, as is the right of everyone to

hold opinions without interference in article 19(1). In accordance with

articles 18(2) and 17; no one can be compelled to reveal his thoughts

or adherence to a religion or belief. However, reasonable restrictions

can be imposed upon the external manifestation of thought,

conscience, religion or belief.

Thus, under article 18 ICCPR, state parties to the covenant may

put such restrictions to be imposed upon the manifestation that may be

9 Art. 18 of ICCPR reads:

―1. Everyone shall have the right to freedom of thought, conscience and religion.

This right shall include freedom to have or to adopt a religion or belief of his choice,

and freedom, either individually or in community with others and in public or

private, to manifest his religion or belief in worship, observance, practice and

teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to

adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such

limitations as are prescribed by law and are necessary to protect public safety, order,

health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty

of parents and, when applicable, legal guardians to ensure the religious and moral

education of their children in conformity with their own convictions.‖


110

prescribed by law and are necessary to protect ‗public safety‘, ‗order‘,

‗health‘ or ‗morals‘ or the fundamental rights and freedom of others.

Similarly, article 25 of Indian Constitution too provides for certain

limitations.10

Article 25 starts with a limiting clause ‗subject to public

order, morality and health and other provisions of this Part‘. This

implies that religious freedom guaranteed under article 25 is not

absolute and in fact, it is the weakest constitutional guarantee in the

sense that it is subject to all other fundamental rights guaranteed under

the Constitution.

It is submitted here that freedom of conscience sans any liberty to

manifest thoughts is a meaningless right which serves no purpose but

at the same time to say that because right to conscience includes right

to manifestation, freedom of conscience can be curtailed, is a facile

rationale for the right to believe (or disbelieve) is absolute, the right to

act, however, cannot be.

As far as the other part of article 25 is concerned that is right to

freely ―practice‖, ―profess‖ and ―propagate‖ religion, the right to

―profess‖ religion is necessarily a consequence to the freedom of

conscience. Whereas freedom of conscience is something internal and

limited to the individual concerned, profession of religion implies

affirmation of one‘s belief and faith publicly, by words of mouth or

other conduct, freedom of conscience allows a person to follow any

religion of his choosing; whereas the right to profess religion entitles

10

Art. 25 of the Constitution of India reads:

―Freedom of conscience and free profession, practice and propagation of

religion.—(1) Subject to public order, morality and health and to the other provisions

of this Part, all persons are equally entitled to freedom of conscience and the right

freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the

State from making any law—(a) regulating or restricting any economic, financial,

political or other secular activity which may be associated with religious practice;(b)

providing for social welfare and reform or the throwing open of Hindu religious

institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included

in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be

construed as including a reference to persons professing the Sikh, Jaina or Buddhist

religion, and the reference to Hindu religious institutions shall be construed

accordingly.‖


111

him publicly to state his creed if he so desires.11

The right to profess

religion necessarily implies freedom to follow any religion or belief.12

No person can be compelled to profess a particular religion or be

bound to remain a member of a particular sect. If a person so desires

he is absolutely free to change his religion, and whenever a question

would arise as to what religion he professes, it will be recognised that

he is a member of whichever new faith he has embraced.13

The right to ―practice‖ religion implies the manifestation and

practical expression of a person‘s belief. Religious practices however

cannot remain absolutely immune from interference.

In article 25 the freedom that has been the hub of all critique and

controversy is the ―freedom of propagation‖ of religion. Propagation

means to transmit or spread one‘s religion by an exposition of its

tenets.14

The Constitution has guaranteed to every person the right to

propagate his religious views for the edification of others.15

Going

through the debates of Constituent Assembly, we realise that

―propagation‖ was one of the most thoroughly debated and

controversial words that was finally included in the constitution. The

reason behind ―propagation‖ being subject to such amount of criticism

is its nexus with the term ―conversion‖.

Conversion is seen as a necessary corollary to propagation. From

the very beginning of the debates, the rights relating directly to

conversion were front and centre in the discussion of religious

freedom, namely the right to free expression or profession of any

religion.16

The fact that these rights were discussed alongside the right

to propagation seems to suggest that the framers of the constitution

were aware of connection between expression or profession, and the

possibility of conversions. Some of the members of the assembly

11

Dhirendra Kumar Srivastava, Religious Freedom in India: A Historical and

Constitutional Study 139 (Deep and Deep Publications, New Delhi, 1982). 12

Ibid. 13

Ibid. 14

Rev Stainislaus v. State of Madhya Pradesh, AIR 1978 SC 908. 15

Supra note 6. 16

The provisions relating to ‗Right to Freedom of Religion‘ were contained in the

draft articles formulated by K.M. Munshi and B.R. Ambedkar. Art. 19 of the draft

was pertaining to the freedom of conscience, and right to freely practice, profess and

propagate religion.


112

strongly objected to the insertion of word ―propagation‖ in the draft17

at the same time there were supporters18

of the same.

Philosophy underlying the concept of propagation can be traced to

the general tendency found among communities craving a desire that

more people should join the family of their believers and that none of

their members should leave the family.

Given this perspective, the policy of propagation as a means to

convert is not, necessarily, based upon an ill will. ―In all good

intention, some people, who belong to a particular faith community,

may love for other humans what they love for themselves. Maybe,

because they see their religion as leading to the path of salvation and

success, they want everyone to join their faith and benefit from its

guidance. However, something is essentially wrong here. These people

fail to see the fundamental principle that concerning basic issues

related with ones own life and death; an individual should be free to

make his/her own judgment. While sincere help from outside should

always be welcome, the decision to believe in a religion, or to change

ones religion must be based upon an individual‘s own well-thought out

judgment. It is a matter of principle that in choosing ones religion,

every individual should be free of all external pressures and

temptations. In fact, it is due to this freedom that one is responsible for

what one believes.‖19

17

Mr. Tajamul Hussain, Mr. Loknath Misra, VII CAD 817 & 818. 18

Pandit Laxmi Kanta Maitrya from West Bengal said: ―If we are to restore our

sense of values which we have held dear, it is of utmost importance that we should

be able to propagate what we honestly feel and believe in. Propagation does not

necessarily mean seeking converts by force of arms, by swords, or by coercion. But

why should obstacle stand in the way if by exposition, illustration and persuasion

you could convey your own religious faith to others? I do not see any harm in it. And

I do feel that this would be the very essence of our fundamental right, the right to

profess and practice any particular religion. If in this country the different religious

faiths go on expounding their religious tenets and doctrines, then probably a good

deal of misconception prevailing in the minds of people about different religions

would be removed, and probably a stage would be reached when by mutual

understanding we could avoid in future all manner of conflicts that arise in the name

of religion. From that point of view I am convinced that the word ‗propagate‘ should

not be deleted.‖ 19

Dr. Irfan Ahmad Khan, Freedom to Change One's Religion: Freedom of Religion

is Meaningless

Without Freedom to Change Ones Religion, available at

http://www.globalwebpost.com/farooqm/study_res/

islam/apostasy/apostasy_irfankhan.html (visited on Nov. 11, 2009 at 12.30 pm).


113

The right to change religion as a right derived from the freedom of

thought

It is said that ―a person cannot choose if he doesn‘t know what choices

are open to him‖20

and this perfectly applies in cases of religion too.

However, choice of religion cannot be equated with that of a choice

between political and other kinds of opinions. Taking into

consideration reasons of individual converts for adopting and

manifesting a specific belief it may literally be a choice between

heaven and hell. Right to choose is implicit in the freedom of

conscience. As humans, we are born free with a natural right of choice;

nevertheless none is able to exercise this right freely due to various

reasons. It may be one‘s compelling surroundings, ignorance as to the

comparative tenets of the various religious faiths or lack of availability

of free and fair opportunity.21

Hardly anybody is adequately informed

as to the exercise of his rights relating to freedom of choice of religion.

Freedom of religious conscience, as it is generally understood by

article 18 of the Universal Declaration of Human Rights and by article

9 of the European Convention on Human Rights, includes the freedom

to choose, to keep, to change or to abandon a particular religion, as

well as the freedom to choose or to abandon religion or atheism in

general without any disadvantageous consequence. It does not lend

itself to any restriction.22

―The freedom of religious conscience, as understood above,

encompasses the right to persuade others by means of teaching, for

example through missionary activity, without which the right to

change religion or faith would run the danger of remaining a dead

letter.‖23

This right is not to be acted upon only in a collective manner,

for example in public or within a group of fellow believers, but also in

20

H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co. Pvt.

Ltd., New Delhi, 4th

ed., 2005).

21

Bimal Kumar Chatterjee, ―Prosletysation and Indian Constitution‖ in B.K.

Chatterjee (ed.), Law is not an Ass and Other Essays 93 (Eastern Law House, New

Delhi, 2006). 22

Dr. Atlanta Filos, The Freedom to Change and Manifest Religion or Belief and

Dominant Religion, available at: http://www.forum18.org/PDF/altana_filos.pdf

(visited on Nov. 15, 2009 at 10.30 am). 23

Ibid.


114

private and individually. ―The prohibition of proselytism, and in

particular the lack of its definition, constitutes a restriction in the

freedom to propagate one‘s religion or faith.‖24

At this point it becomes essential for us to see whether right of

persuasion is included within the right of propagation or not and if it

is so, then in case where persuasion results in change of faith could it

be termed as conversion. An attempt can be made here to make a

distinction between ―renunciation‖ and ―conversion‖. If the religion

that one acquires by virtue of being born to his parents belonging to a

particular faith, does not appeal to his sensibilities or conscience and

the person on his own volition renounce the same, can it be termed as

conversion or is it an act of mere renunciation?

What if after renunciation on being attracted towards a particular

faith one adopts the same out of one‘s own free will without being

persuaded by anyone, does it amount to conversion? Even if someone

persuades him, as a rational human being, having a basic

understanding of right and wrong, moral and immoral, the person

being so persuaded has every right not to get persuaded.

―Persuasion by itself is guilt free and therefore is not and cannot

be offensive.‖25

However, persuasion must be from free conscience to

open conscience.26

If the motive of persuasion is spiritual, for the

purpose of enlightening another and assisting him in the matter of

exercise of choice of religion, there does not appear to be anything

unlawful or immoral in that.27

―Persuasion‖, at times may be looked down upon as ―undue

influence or ―coercion‖ in cases where the person being persuaded is

thought of to be of a poor intellect.28

Persuasion and coercion are two

different things and it becomes imperative to demarcate them but

where do we draw the line. Persuading and getting persuaded are two

different things. If one has a right to persuade another, the person so

persuaded too has every right not to get persuaded. It is essentially a

matter of individual choice and conscience. Coercion, however, stands

24

Ibid. 25


Ibid. 27

Id at 105. 28

Ibid.


115

altogether on a different footing and can never be justified in any

circumstance.

By virtue of article 2 of ICCPR29

the right to change religion is not

just a freedom from direct and indirect coercion the active state but it

is much more than that. It brings the state not only under an obligation

to respect the rights in the convention, but also to "ensure" them.

Therefore, it is not sufficient for the state to be passive, if the right to

change religion is not a real right in practice.

Assuming that a situation arises where a religious convert meets

strong reaction from the society or where a religious association does

not permit a member to leave, in such cases the state may be obliged to

impose measures to protect the right of such a convert. It is true that it

is not possible for a state to hinder all forms of private encroachment

of the right to change religion but there is no doubt that article 2

provides positive measures where the right is severely infringed upon.

It is also pertinent to note here that the limitation clause in para 3 of

article 18 solely refers to the right to "manifest" one's religion or

belief. It can thus be assumed that a state in no way can interfere in the

exercise of right to change religion as long as this change does not

manifest itself in any way.

29

Art. 2 of ICCPR reads:

―1. Each State Party to the present Covenant undertakes to respect and to ensure to

all individuals within its territory and subject to its jurisdiction the rights recognized

in the present Covenant, without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth

or other status.

2. Where not already provided for by existing legislative or other measures, each

State Party to the present Covenant undertakes to take the necessary steps, in

accordance with its constitutional processes and with the provisions of the present

Covenant, to adopt such laws or other measures as may be necessary to give effect to

the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are

violated shall have an effective remedy, notwithstanding that the violation has been

committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right hereto

determined by competent judicial, administrative or legislative authorities, or by any

other competent authority provided for by the legal system of the State, and to

develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when

granted.‖


116

Mere change of religion can be said to be a latent mental

disposition, and not a manifestation until it is expressly made. In this

sense, mere change of a religion may never be interfered with by the

state. Even if the belief is considered to be a threat to the society, the

belief itself may not be intervened with, its manifestation however, can

be. The freedom of thought is essentially non-interferable. Morality

and legality are two separate issues. What is immoral may not

necessarily be illegal. Like religion, morality too is hard to define.

More than being abstract it is a very subjective term. A radical change

of religious belief might seem to conflict with the existing moral

norms of a society. How far can societal interest override interests of

individual or up to what extent individual interests are to be sacrificed

for the larger interest of the society; is a debatable issue.

III. Anti Conversion Laws

We know that every statute has to be tested on the touch stone of

Constitution and ‗secularism‘ is a basic feature of our Constitution.30

This causes one to reflect on the constitutional validity of statutes

regulating conversions. Before discussing the constitutionality of these

seven statutes, which are euphemistically called ‗Freedom of Religion

laws‘, we shall first succinctly sift some historical background. For

convenience sake I shall refer to these Acts as anti conversion laws

though it is submitted here that the general perception about these laws

as banning conversions per se is actually a misconception as all these

laws are aiming at regulating conversions and do not put a blanket ban

on religious conversions.

Prior to independence, anti conversion laws were in operation in

several princely states31

although British India had no such laws.

Reason for this distinction probably lies in the fact that the British

30

The Hon‘ble Supreme Court expounded the theory of Basic Structure in the

historic Kesavanand Case and later on in S.R. Bommai held ―Secularism‖ to be a part

of Basic structure of the Constitution. 31

The first anti conversion law was passed by the Rajgarh State in 1936 which was

followed by the Patna Freedom of Religion Act, 1942, Surguza State Apostasy Act,

1945 and the Udaipur State Anti Conversion Act, 1946.


117

themselves professed a proselytizing religion32

and the dominantly

Hindu princely states‘ showed resistance to conversion to an alien

religion. Conversions secured by fraud, misrepresentation, coercion,

intimidation, undue influence or the like, were made liable to

punishment. Conversion of minors was not possible as children of

converts were not automatically considered to be governed by the new

faith of their parents.

In the Constituent Assembly, the question of conversion was one

of the most highly debated issues. Though there was no difference of

opinion on the merits of the case that forcible conversion should not be

or cannot be recognized by law, it was strongly felt not to make an

express provisions in the Constitution for all such conceivable things

which could well be regulated by an ordinary legislation.33

Post-independence, there were many attempts34

made to enact a

central legislation to regulate religious conversions, all to no avail.

However, at the state level there were isolated instances of efforts

made to have such legislations. Relying on the recommendations of

32

P. Puneeth, Vishnu Konoorayar K. and Furqan Ahmad, A Study of Compatibility

of Anti Conversion Laws with Right to Freedom of Religion, conducted by Indian

Law Institute, New Delhi. 33

Clause 17 read "Conversion from one religion to another brought about by

coercion or undue Influence shall not be recognised by law." The honourable Sardar

Vallabhbhai J. Patel while starting discussion on the topic said ―The committee

discussed this and there were several other suggestions made by the House and the

clause was referred back to the committee. After further consideration of this clause,

which enunciates an obvious principle, the committee came to the conclusion that it

is not necessary to include this as a fundamental right. It is illegal under the present

law and it will be illegal at any time.‖ He further said ―there is no difference of

opinion on the merits of the case that forcible conversion should not be or cannot be

recognised by law. On that principle there is no difference of opinion. The question

is only whether this clause is necessary in the list of fundamental rights. Now, if it is

an objective for the administration to act, it has a place in the second part which

consists of non-justiciable rights. If you think it is necessary, let us transfer it to the

second part of the schedule because it is admitted that in the law of the land forcible

conversion is illegal. We have even stopped forcible education and, we do not for a

moment suggest that forcible conversion of one by another from one religion to

another will be recognised. But suppose one thousand people are converted, that is

not recognised. Will you go to a court of law and ask it not to recognise it? It only

creates complications, it gives no remedy. But if you want this principle to be

enunciated as a seventh clause, coming after clause 6, in the Second Schedule, it is

unnecessary to carry on any debate; you can do so. There is no difference of opinion

on the merits of the case. But at this stage to talk of forcible conversion on merits is

absurd, because there cannot be any question about it.‖ 34

First in 1954 then in 1960, and then again in 1975.


118

the Bhawani Sankar Niyogi committee, the state of Madhya Pradesh

had enacted Madhya Pradesh Dharma Swatantraya Adhiniyam, 1967.

By the time the Madhya Pradesh Act was passed, State of Orissa had

already passed a similar legislation called the Orissa Freedom of

Religion Act, 1967.

Similar legislation was then passed in Arunachal Pradesh as the

Arunachal Pradesh Freedom of Religion Act, 1978. When the state of

Chhattisgarh came into existence in the year 2000, it adopted the

Madhya Pradesh Act of 1968 by the name of Chhattisgarh Freedom of

Religion Act, 1968.35

Then came the now repealed Tamil Nadu

Prohibition of Forcible Conversion of Religion Act, 2002.36

Gujrat

followed suit in 2003 with the Gujrat Freedom of Religion Act and the

year 2006 witnessed two States adopting such legislations, Rajasthan

with the Rajasthan Dharma Swatantraya (Freedom of Religion) Act

and Himachal Pradesh with the Himachal Pradesh Freedom of

Religion Act.

Constitutionality of Anti Conversion Laws: An Analysis

Undoubtedly there is no ground justifying conversions brought about

by violence or other illegitimate means of coercion. Also, there is no

justification as regards the religious conversions for the purpose of

escaping the rigours of law or defrauding legal system.37

Forceful conversions violate the principle of freedom of

conscience and constitute one of the gravest human right violations.

On this premise, it can very well be said that the state is justified in

making law for keeping in check the conversions brought about by

illegitimate means and for the purpose of protecting freedom of

conscience. But on examining the statutes existing on the subject we

realise their impropriety as the language adopted by these legislations

35

Now Amended by the Chhatisgarh Dharma Swatantraya (Sanshodhan)

Adhiniyam, 2006. 36

Repealed by the Tamil Nadu Prohibition of Forcible Conversion of Religion

(Repeal) Act, 2006. 37

Example conversion to Islam for the purpose of solemnizing second marriage

(Sarla Mudgal v. Union of India, AIR 1995 SC 1531) or securing benefits of

reservation in higher education (Andhra Kesari College of Education and Ors. v.

State of A.P. and Ors, MANU/AP/0717/2006).


119

goes far beyond the protection of this right and indeed, in no way

appear to be motivated by the desire to protect the freedom of

conscience.38

The terminology used by these legislations transforms

them from their purported role as protectors of constitutional rights

into violators of these very guarantees.39

Let us begin with first examining the definition of ―conversion‖

given in the statutes. ―Conversion‖ as defined40

in Orissa, Madhya

Pradesh, Chhattisgarh and Himachal Pradesh Act means ‗renouncing

one religion and adopting another.‘ Using a different phraseology, the

Gujrat Act defines ―convert‖ as meaning ‗to make one person to

renounce one religion and adopt another religion‘.41

The Rajasthan,

Arunachal Pradesh and Chhattisgarh Act are unique in the sense that

there definition of ‗conversion‘ excludes ―reconversion‖. Section 2(b)

of the Arunachal Act defines ―conversion‖ as renouncing an

indigenous faith and adopting another faith or religion. Section 2(c) of

the Act further defines ―indigenous‖ as ‗such religions, beliefs and

practices including rites, rituals, festivals, observances, performances,

abstinence, customs as have been found sanctioned, approved,

performed by the indigenous communities of Arunachal Pradesh from

the time these communities have been known‘ and further elaborates a

list of those considered indigenous.

The Rajasthan Act applies the term ‗conversion‘ only to

renunciation of one‘s own religion and adopting another. ‗Own

religion‘ is explained as the ‗religion of one‘s forefathers‘. Similarly,

the amended Chhattisgarh Act excludes ‗returning to one‘s forefathers‘

religion or his original religion from the definition of conversion.

This distinction between ‗conversion‘ and ‗reconversion‘ is the

biggest anomalies of the Acts as they clearly differentiate between

religions and infringes article 14 of the constitution. It is hard to

38

Anti-Conversion Laws: Challenges to Secularism and Fundamental Rights- South

Asia Human Rights Documentation Centre, 43(2) EPW 63-73 (2008). 39

Ibid. 40

S. 2(a) of Orissa Freedom of Religion Act, 1967, s. 2(b) of Madhya Pradesh

Dharma Swatantraya Act, 1968, s. 2(b) of Chhattisgarh Dharma Swatantraya

Adhiniyam, 1968 and s. 2(a) of the Himachal Pradesh Freedom of Religion Act,

2006. 41

S. 2(b).


120

comprehend that if induced conversion is an offence then why induced

reconversion not so.

These legislations endeavour to prohibit ―forcible‖ conversions in

the following terms: ―No person shall convert or attempt to convert,

either directly or otherwise, any person from one religion to another by

use of force or by allurement or by any fraudulent means, nor shall any

person abet such conversion.‘ Orissa, Arunachal and Himachal Acts

use the word ―inducement‖ in place of ―allurement‖. The proviso to

the prohibition clause of the Himachal Act further goes on to declare

that ―any person who has been converted from one religion to another,

in contravention of the provisions of this section, shall be deemed not

to have been converted.‖

As for the definition of the term ‗force‘,42

all the legislations share

a common definition and state that ―force shall include show of force

or threat of injury or threat of divine displeasure or social

excommunication.‖

This definition of force is the most critical in nature as it is

uncertain as to how this definition will operate in practice. For

instance, if a religion teaches that non-adherents risk divine

displeasure (as is the case with all Abrahamic Religions), the act of

imparting this article of faith may constitute an act of force, under anti-

conversion legislations. This has problematic ramifications on the

freedom of change religion.43

The overtly broad definition of force

unjustifiably impinges on interactions between potential converts and

those seeking to bring about their conversion. The latter are rendered

unable to inform the former of what their religion teaches about non-

adherents, limiting the information that can be made available to the

potential convert and thereby impinging on the meaningful exercise of

his or her freedom to change religion.44

The term ―divine displeasure‖

is used in the Indian penal Code45

as well and has been in existence for

42

S. 2(b) of Himachal and Orissa Act, s. 2(c) of Madhya Pradesh and Gujarat Act, s.

2(d) of Arunachal and Rajasthan Act. 43

Supra note 38 at 64; also see ―right to change religion derived from freedom of

thought‖ in this paper. 44

Ibid. 45

S. 508 of IPC reads:

―Act caused by inducing person to believe that he will be rendered an object of the

Divine displeasure. Whoever voluntarily causes or attempts to cause any person to

do anything which that person is not legally bound to do, or to omit to do anything


121

more than 150 years now. Any individual or group inducing another to

do any act under a threat of divine displeasure can be prosecuted under

the Indian Penal Code. There underlies a subtle difference in the

operating scope of the term in both the cases, i.e., when used in IPC

and when used under the anti conversion laws. IPC as a general penal

statute is the law of the land providing for different types of offences.

Anti conversion laws are specifically made to achieve some purpose.

The scope of IPC is vast, that of anti conversion laws narrowed down

in terms of territorial limits but more profound in its reach and effect.

When used in such a specific sense as in the anti conversion laws there

is always room for overtly broad interpretation or misinterpretation

which might in certain situations lead to putting restrictions on the

right to free propagation of religion.

Two terms that further need critical analysis are ‗allurement‘ and

‗inducement‘.46

It is noteworthy here that the problem with the use of

the word ―inducement‖ were noted by the Orissa High Court in Yulitha

Hyde v. State of Orissa47

wherein it was held to impinge upon many

legitimate methods of proselytising by reason of its overly vague

nature and wide scope. This decision was however; subsequently

overruled by the Supreme Court in Stainislaus v Madhya Pradesh48

wherein the Court upheld the validity of the Orissa Act but the

problem of broad scope of both these terms nevertheless remains the

same.

which he is legally entitled to do, by inducing or attempting to induce that person to

believe that he or any person in whom he is interested will become or will be

rendered by some act of the offender an object of Divine displeasure if he does not

do the thing which it is the object of the offender to cause him to do, or if he does the

thing which it is the object of the offender to cause him to omit, shall be punished

with imprisonment of either description for a term which may extend to one year, or

with fine, or with both.‖

Also See s. 171 C (b) of the Indian Penal Code, 1872. 46

‗Allurement‘ as per the Madhya Pradesh, Chhattisgarh, Gujrat, Rajasthan and the

now repealed Tamil Nadu Act ―means offer of any temptation in the form of; 1. Any

gift or gratification, either in cash or in kind; 2. Grant of any material benefit, either

monetary or otherwise.‖

‗Inducement‘ as used in the Himachal, Orissa and Arunachal Acts ―includes the offer

of any gift or gratification, either in cash or in kind and shall also include the grant of

any benefit, either pecuniary or otherwise.‖ 47

AIR 1973 Ori 116. 48

(1977) 1 SCC 677.


122

The cause of concern here is that charitable acts are fundamental to

certain religions and any broad interpretation given to these two terms

may restrict the freedom of its adherents to meaningfully practice their

religion or religious beliefs. It is conceivable that the provision of

education facilities or medical care by religious denominations might

also be interpreted as ―temptation‖ intended to induce conversions.

These definitions leave much uncertainty, therefore, as to which

activities remain permissible and which are prohibited.

Another imprecise definition is that of the word ―fraudulent

means‖ Rajasthan and Gujrat Act state that ‗fraudulent means and

includes misrepresentation or any other fraudulent contrivance.

Himachal, Orissa. Madhya Pradesh, Arunachal and Chhattisgarh Acts

state: fraud shall include misrepresentation or any other fraudulent

contrivances the imprecision of this definition is apparent. For

example, if an individual was told that on converting he/she would feel

closer to God but on conversion the converted person did not feel the

expected degree of spirituality than can he claim to have been

misrepresented.49

These terms will be a headache for the law enforcement agencies

when they have to differentiate between legitimate and illegitimate

conversions.50

This in turn results in granting greater discretion to the

enforcement agencies. As the anti-conversion laws gives room to

misuse it is viewed specifically as a measure against the minorities.

Though it is humbly admitted here that vagueness of terms used in a

statute and the fear of misuse can ideally not be the reason for

declaring a statute to be unconstitutional, apprehensions against

misuse and fears of harassments create an element of suspicion in the

mind of minorities51

which is not a good sign for a secular democracy.

Penalties under the Acts

When penalty provision for an offence is harsh and stringent, it

becomes imperative to have a system of internal checks and balances.

49

Supra note 38. 50

Anzil Kommattu, ―Religious Conversion: Need for Legislation‖, 19 Lawyers

Collective 24 (2004). 51

Ibid.


123

Looking at the penal provisions52

of the various Acts we realise that

with passing time the degree of severity of penalties has increased.

The earlier laws of Orissa, Madhya Pradesh and Arunachal Pradesh

prescribed only punishment either in form or fine or imprisonment

only. The punishment under the Tamil Nadu and Gujarat Act was

enhanced up to three years imprisonment and fifty thousand rupees. In

case of conversions of minors, dalits, women and tribals, the

punishment is increases to a maximum of 4 years and fine up to one

lakh rupees. The provision of the Rajasthan Act is the most shocking

of all the laws wherein the punishment that has been prescribed in

terms of both maximum and minimum period of imprisonment in

conjunction with the fine to be imposed is ―in addition to any other

civil or criminal liability‖. Other Acts provide punishment without

prejudice to any other civil liability. It is a well established principle

that both civil and criminal liabilities are concurrent and not alternative

but there cannot be two criminal liabilities for the same act as that

would amount to double jeopardy and thus infringe article 20(2) of the

Constitution.

In case of the Gujrat Act, ―prior permission‖ of the District

Collector53

is to be taken with respect to conversion which is a novel

feature of the act as none of the other laws mandate the same. In the

Madhya Pradesh Act ―prior intimation‖54

to the District Magistrate is

required whereas the Arunachal and Tamil Nadu Act only subsequent

intimation is contemplated.55

Requirement of taking prior permission

leaves the power of discretion in the hands of the executive to decide

if a person can change his religion or not. Given the fact that no time

frame is provided for the Collector to give his permission and the

person, an individual‘s prospects of conversion are left on the sweet

will of the executive. This undeniably is a violation of the prospective

converts right to choice of religion as embedded in the conscience

clause of article 25 of the constitution.

52

S. 4 of the Orissa, Madhya Pradesh, Chhattisgarh, Gujrat, Arunachal, Tamilnadu

and s. 5 of the Himachal Act also s. 5-A of the amended Chhatisgarh Act. 53

S. 5 of Gujrat Freedom of Religion Act, 2002. 54

S. 5 of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968. 55

S. 5 of Tamil Nadu and Arunachal Act.


124

The Stainislaus Judgment

Rev. Stainislaus v. State of Madhya Pradesh56

is the key judicial

pronouncement on the validity of anti conversion laws. Stainislaus

arose in the backdrop of appeals against conflicting judgments of High

Courts of Orissa and Madhya Pradesh.

High Court of Orissa in Yulitha Hyde v. State of Orissa57

while

checking the constitutionality of the Orissa Freedom of Religion Act

observed that although the phrases ‗forces‘ and ‗fraud‘ were well

understood phrases as defined under IPC, the phrase ‗inducement‘ was

vague and capable of interfering with several legitimate prosletysing

activities protected by article 25(1) and was liable to be stuck down.58

The High Court also established the right to convert as a component of

religious freedom as guaranteed by the constitution. As regards the

competency of state legislature to enact the impugned statute, it was

held that the subject matter of the Act would fall under entry 97 of

schedule 7 and as such, the parliament alone had the power to legislate

on such subject matter. Accordingly the High Court declared the Act

as ultra vires of the Constitution.

In Rev. Stainislaus v. Madhya Pradesh,59

the validity of Madhya

Pradesh Dharma Swatantraya Adhiniyam, 1968 was challenged on

similar grounds. Contrary to the ruling of Orissa High Court in Yulitha

Hyde, the High Court of Madhya Pradesh negatived all contentions of

the petitioner.

When the matter came up before the Supreme Court in Rev.

Stainislaus v. State of Madhya Pradesh60

the honourable court highly

endorsed the ruling of the Madhya Pradesh High Court in disposing

the case and repudiating the Orissa High Court‘s understanding of

conversion as a religious activity entitled to constitutional protection,

the Supreme Court refused to read the freedom to convert within the

right to propagate one‘s religion and held that:

―What the article grants is not the right to convert another person

to one's own religion, but to transmit or spread one's religion by an

56

(1977) 1 SCC 677. 57

AIR 1973 Ori 116. 58

Ibid. 59

AIR 1975 MP 163. 60

(1977) 1 SCC 677.


125

exposition of its tenets. It has to be remembered that article 25(1)

guarantees "freedom of conscience" to every citizen, and not merely to

the followers of one particular religion, and that, in turn, postulates

that there is not fundamental right to convert another person as one's

own religion because if a person purposely under-takes the conversion

of another person to his religion, as distinguished from his effort to

transmit or spread the tenets of his religion, that would impinge on the

"freedom of conscience" guaranteed to all the citizens of the country

alike.‖

Presumably, this judgment is an expansion of the idea that

conversion is to be for the purpose of edification only, for it attempts

to drive a wedge between propagation and conversion. One has the

right to propagate not to propagate in order to convert another.61

The

issue, seen in this perspective is not simply about law and order but

directly linked to freedom of conscience. Intent to convert impinges on

this freedom. If freedom of conscience is to be observed in equal

measure for all, then conversion cannot be claimed as a right in this

view.

Presumably this means that since some religious communities do

not see conversion as a duty, equal treatment of all means that

conversion cannot or should not be the object of propagation62

even if

another community63

or tradition calls its adherents to propagate in

order to convert others.

Again in examining whether state government possessed

legislative competence to pass legislation restricting conversions, the

Hon‘ble Supreme Court agreed with the Madhya Pradesh High Court

that such legislations pertained to public order, as forcible conversions

could result in public disorder, the court adopted a broad interpretation

of the terms signifying a ―state of tranquillity which prevails among

61

Ronald W. Neufeldt, ―To Convert or Not to Convert: Legal and Political

Dimensions of Conversion in Independent India‖ in Robert Baird (ed.), Religion and

Law in Independent India 398 (Manohar Publication, 2nd

ed., 2005). 62

Ibid. 63

As is the case with Christianity wherein the ‗catholic church‘ believes that

preaching of the Gospel is central to an individual‘s acceptance of Jesus as Saviour.

They believe that conversion is a continuous process of returning to God, that is, of

improving one‘s relations with God and with one another.


126

members of a political society as a result of internal regulations

enforced by the government‖.

IV. Conclusion

Religious thoughts and beliefs shape up human conduct in day to day

life. Right to freedom of conscience, practice, profession and

propagation of religion are fundamental to the development of

humans. In today‘s world and times when we are witnessing wars

being fought in the name of religion, issues relating to religious

freedom acquire a degree of sensitivity which a state has to respect but

at the same time for the sake of preserving peace in the society it

becomes imperative for the state to regulate certain activities of the

individual. To maintain this balance between individual freedom and

community interest is actually a challenge for any democratic

government.

When we discuss religious freedom in the backdrop of question of

conversion, it is submitted that right to change religion is inherent in

the right to freedom of conscience guaranteed under article 25 of

Indian Constitution as well as article 18 of UDHR and ICCPR. Right

to change religion encompasses within it folds the right to choice of

religion. One can exercise this right of choice only when one is aware

of the choices that are available to him/her. Propagation of religious

tenets is essential so as to enable a person to acquaint himself with the

choices that are available to him/her. Propagation, in this sense can be

said to be a right derived from freedom of conscience.

Freedom to convert from one religious identity to another valorises

individual freedom and rational choice as it judges the acceptability of

religion on certain ethical credentials.64

All individuals, at the same

time do have the right to refuse any offer of conversion and be able to

enjoy their freedom of religion free from undue interference.

By virtue of article 18(2) of the ICCPR, no person could be made

susceptible to extreme prostelysing efforts that may infringe upon the

freedom to maintain his chosen religious identity. While every person

has a right to invite others to an understanding of their faith, this right

64

Harish S. Wankhade, ―The Political Context of Religious Conversion in Orissa‖,

44(15) EPW 33-38 (2009).


127

should not be exercised by violating rights of others and their religious

sensibilities. Even if propagation as a means to convert others is

central to a particular religion this does not imply that this right is

absolute. If an individual or a missionary has a right to convert, that

doesn‘t mean that another person is under an obligation to convert,

instead he has an equal right not to convert. Restrictions can still be

put regulating such right of conversion read under freedom of religion

as article 25(1) is the weakest constitutional guarantee. However,

when and where an individual converts out of his own free will the

state has to ensure that his new religious identity does not become the

cause for disruption in society. It is the duty of the state not only to

protect him but the entire social fabric of the society.

In a democracy, every law is a resultant of a parallelogram of

forces.65

The executive and legislature, both have to be sensitive to

these forces. It is executive‘s duty to refrain itself from acting too

hastily and the legislature has to take into consideration the interests of

people purporting to do good to the largest number of people and the

least harm to the smallest minority group of the people. The state is

under obligation to respect and protect the rights of the individual.

Religious freedom is quintessential for the complete development of

human intellect and personality. Conscience of a man shapes his life.

Unnecessary and uncalled for restraints in the exercise of a man‘s

innate freedom because of fear instilled in his mind due to the

existence of some vague terminology used in a statute is a very sad

preposition.

These legislations provide us with no guidance as to how such

terms should be constructed. This vacuum created by lack of precisely

defined terminology, however cannot be the sole criterion for striking

down the Acts as unconstitutional. The ambiguity of the definitions in

the statutes does leave a high degree of discretion to government

officials to determine what actions are prohibited and which

individuals will be targeted but for the purpose of checking

administrative discretion there is always a remedy of judicial review

though the process may be long and arduous.

65

V. P Sarthi, Interpretation of Statutes, 10 (Eastern Book Company, Lucknow, 4th

edn, 2003).


128

In societies like India where religious passion is always

undercurrent and emotions are valued more than reason, any stray

activity offending the religious sentiments of the people can cause the

society to erupt with disastrous consequence. At times due to

prevailing circumstances it becomes essential for the state to regulate

certain religious activities of an individual and it is highly desirable

that the state does it in a manner so as to preserve individual liberty

uptil the time it is possible.

Saadiya Suleman



129

TRIPLE TALAQ: A SOCIO-LEGAL ANALYSIS

I. Introduction

ISLAM, ONE of the greatest of world religions through the 1500 years

of existence, has been by far the most misunderstood and

misrepresented. The reason for this does not lie outside but it is only

due to sheer ignorance of its own followers. The Prophet of Islam

never thought that he was bringing a new religion, but that he was

merely trying to reintroduce the old faith in the ‗One God‘ to the

Arabs. It was basically a social reform movement brought about to

teach the savage pagan Arabs the laws of humanity and to create a

society where weak and vulnerable are treated with respect. The

Prophet of Islam was indeed a social reformer, thinking far ahead of

his time. The emancipation of women was a project dear to prophet‘s

(PBUH) heart. According to Karen Armstrong,1 ―Muhammad was one

of those rare men who truly enjoy the company of women. Some of his

male companions were astonished by his leniency towards his wives

and the way they stood up to him and answered back.‖2

Prophet of Islam disliked the practices of pagan Arabs of treating

women as goods and chattels. He looked upon those customs with

extreme disapproval and regarded their practice as calculated to

undermine the foundation of society. He brought path-breaking reform

in the laws of marriage, divorce and inheritance and gave women their

earned position. Quran gave women, rights of inheritance and divorce

centuries before western women were accorded such status.

He was disgusted by the arbitrary divorce practices prevailing in

the pagan Arabs. He set out to reform this practice and laid down

procedure to be adopted in case of divorce between the couple. He told

to his people:

―Now onwards, only twice in the whole life can a husband

pronounce a talaq and revoke it; whenever he does so for the third

1 She is a teacher at the Leo Baeck College for the Study of Judaism in London and,

in 1999; and has also received the Muslim Public Affairs Council Media Award. She

is also the author of the world-wide bestsellers. 2 Karen Armstrong, Islam: A Short History 13 (Phoenix Press, London, 1

st edn.,

2000).

Triple Talaq: A Socio-Legal Analysis [Vol. 1 : 1

130

time the marriage would be instantly dissolved, leaving no room for

remarriage between the divorced couple.‖3

This simple reform of the Prophet got corrupted in the course of

time and this pre-Islamic custom of arbitrary divorce, which was

abhorred by the prophet once again, became prevalent. In the

following paper a study has been made on the origin of this practice of

triple-talaq and its sharia basis, and its impact on the society so far.

Historical Background of Divorce

To understand the nature and concept of divorce in Islamic law, a brief

account of its historical background is necessary.4 Among all the

nations of antiquity, the power of divorce was regarded as a natural

corollary to marital obligation.

Among the pre-Islamic Arab (during the period of jahiliyat) 5

the

power of divorce possessed by the husband was unlimited and was

frequently exercised without any regard to the marital obligations.

They could divorce their wives at any time, for any reason or even

without any reason. They could give divorce and also revoke the same

as many times as they preferred. They could, moreover, if they were so

inclined, swear that they would have no intercourse with their wives,

though still living with them. They could arbitrarily accuse their wives

of adultery, dismiss them, and leave them with such notoriety as would

deter other suitors; while they themselves would go exempt from any

formal responsibility of maintenance.6 In pre-Islamic Arabia, divorce

was used as an instrument of torture.

These social and moral ills and injustices engaged the attention of

the prophet of Islam. Fully conscious of the evils flowing from

divorce, he framed the laws of marriage and divorce in order to

remove these evils.

3 Furqan Ahmad, ―Understanding the Islamic Law of Divorce‖, 43 JILI 484 (2003).

4 Supra note 3.

5 This is a period of ignorance among the ancient Arab before the teaching of

Prophet (PBUH). 6 Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal

Aspect 13 (Regency Publication, New Delhi, 1994).


131

Concept of Marriage in Islam

Before delving into the debate of divorce under Islam, it is imperative

for us to understand the nature of marriage ordained under Islam so as

to form a better perspective of the concept of divorce.7 It has been

always said that under Islam marriage is a contract, and like any other

contract it comprises of offer acceptance and consideration, so it can

also be terminated or dissolved like a contract by the parties to the

contract at anytime. But this view is not proper.

Tahir Mahmood in his book said that the general impression that

there is no religious significance or social solemnity attached to a

Muslim marriage and that it is a mere civil contract is not true.

The Quran does not treat marriage as an ordinary contract. The

prophet described nikah as his Sunnat; and those who know the socio-

religious significance of Sunnat as recognized by the Muslims can well

understand what marriage means to a follower of Islam.8

According to Ameer Ali ―Marriage‖ says the ―Ashbah‖ is an

―institution ordained for the protection of the society, and in order that

the human beings may guard themselves from foulness and

unchastity….. ―No sacrament but marriage has maintained its sanctity

since the earliest time. It is an act of ibaadat or piety for it preserves

mankind free from pollution. It does not give man any right over the

person of the wife except from mutual relationship according to the

law of nature and not contrary to it.‖9

Also the Prophet (PBUH) has described, ―He who marries

complete his half religion, it now rest upon him to complete the other

half by leading a virtuous life in consistent fear of God.‖10

Thus it is

said to be half iman.

There is indeed a specific purpose for which Muslin law regard

marriage as an agreement, a very special nature. It is meant to accord

7 Supra note 3 at 484.

8 Tahir Mahmood, Muslim law of India 48 (LexisNexis Butterworth, New Delhi, 3rd

edn., 2002). 9 Syed Ameer Ali, Muhammadan Law 471 (English Book Store New Delhi 4

th edn,

1985). 10

Zubair A. Khan, ―Divorce in Islam: Not Easy Going‖, 14 Religious and Law

Review 109 (2005).


132

full contractual freedom to the parties to a proposed marriage; and this

is indeed a unique feature of Islamic law.11

Islamic Perspective of Divorce

The Prophet of Islam was indeed social reformer thinking far ahead of

his time. He found arbitrary divorce-practices prevailing among the

pagans and Jewish-Christian Arabs. Disgusted he set out to reform

them.12

It was impossible, however, under the existing condition of the

society to abolish the custom entirely. The prophet has to mould the

mind of an uncultured and semi-barbarous community to a higher

development. Accordingly he allowed the exercise of power of divorce

under certain conditions. He permitted the parties to divorce the parties

at three distinct and separate time periods within which they might

endeavour to become reconciled; but should all attempt to reconcile

prove unsuccessful; then in the third period the final separation

become effective.13

The Mussalmaan law of divorce is the logical consequence of the

status of marriage. As it regards it as an ‗Aqd‘ or a contract, it confers

on both the parties to the contract the power of dissolving the tie or

relationship under certain specified conditions. The Islamic law did not

take away the customary right of the husband to divorce his wife

unilaterally, but it imposed numerous restrictions, on the exercise of

this right. A Muslim man cannot divorce his wife and take her back as

he pleases.14

Though permissible in law, divorce is not favoured in Islam as

prevents conjugal happiness and interfered with the proper up-bringing

of the children. Prophet told his people:

―Divorce is most detestable in the sight of God; abstain from it.15

He also said:

11


Tahir Mahmood ―No More Talaq, Talaq, Talaq: Juristic Restoration of True

Islamic Law of Divorce‖, 12 Islamic and Law Quarterly Review, 1 (1992). 13

Ameer Ali, ―The Spirit of Islam‖, as cited in Khalid Rashid, Muslim Law 47

(Eastern Book Company, Lucknow, 4th

edn., 2004). 14


“Al-Talaqu indallah-i abghad al-mubahat”; This Hadith is found in many

authentic collections of tradition.


133

“Divorce shakes the throne of God.”16

The permission therefore, in the Quran, though it gave a certain

countenance to the old custom, has to be read with light of lawgiver‘s

own words. When it is borne in mind how intimately law and religion

are connected in Islamic system, it will be easy to understand the

bearing of words on the institution of divorce.17

II. Divorce in Quran

It is imperative to understand the various forms through which a

marriage can be dissolved. When dissolution proceeds from the

husband it is called Talaq and when it takes place at the instance of the

wife, it is called Khula. When it is by mutual consent it is called

Mubaraa,18

and when it is by qadi through a judicial process it is

Faskh or sometime it can be Lian.

Talaq

Talaq as defined in law ―is a release from the marriage tie, either

immediately or eventually, by the use of special words.”19

It is used by

Muslim jurists to denote release of women from marital tie. A Muslim

husband under all schools of Muslim law can divorce his wife by

unilateral action and without the intervention of the court. It is not

necessary to provide for such power in the Marriage-Contract; the

husband derives this power from the law itself this power is known as

the power to pronounce talaq.

The husband though given the unilateral power to pronounce talaq

has to be very judicious in its exercise. The Quran has laid down

certain rules which have to be followed strictly. He has been given this

power with expectation that firstly he will not ordinarily exercise it

and avoid it as much possible. Secondly that if he finds it unavoidable

then he shall do it with a sense of justice (adl) and rationality. There is

16

Ibid. 17


Id. at 487. 19

Faiz Badrudin Tyabji, Muslim Law 205 (N.M. Tripathi Ltd., Bombay, 4th

edn.,

1968).


134

nothing in Islamic law which gives husband the power to divorce his

wife arbitrarily, irrationally and in unreasonable manner.

Further, it has been laid in Quran that before the procedure for

talaq is to be started the spouses should try to reconcile with each

other by appointing arbitrators, one from the side of wife and the other

from the side of husband. This has been provided under verse 4:3520

of

Holy Quran.

It has been observed by a learned commentator of Holy Quran:21

as

―An excellent plan for setting the family disputes, without too much

publicity or mud-throwing or resort to chicaneries of the law.‖ The

Latin countries recognized this plan in their legal system. It is a pity

that Muslims do not resort to it universally, as they should. They

arbiters from each family would know idiosyncrasies of both parties

and would be able, with Allah‟s help to effect reconciliation.‖

According to Moulana Mohammed Ali, this a procedure par

excellence, which portrays Islam in its true glory. But later Muslim

jurists of ―great antiquity and high authority‖ threw to the winds this

salutary procedure.22

According to Tahir Mahmood there is a simple procedure of talaq

in Islam which is, unfortunately, misunderstood by majority of Muslim

themselves. They erroneously believe that they are allowed different

―modes‖ or ―forms‖ of talaq and also have absolute freedom of action.

He says that there are not any modes of talaq like ahsan, hasan or

bid‟at. The law of Islam says to husband:23

(i) Talaq is ―worst of all permitted things‖; better avoid it: but if you

find necessary to have recourse to talaq, then;

(a) Wait till the wife enters the period of ‗tuhr‘;24

20

An Enlightenment Commentary into the Light of the Holy Quran (The Scientific

and Religious Research Centre, Iran, 2nd

edn., 1995). 21

Holy Quran English Translation of the Meanings and Commentary, 220 Ministry

of Hajj and Endowments, kingdom of Saudi Arabia as cited in S.A. Kader, Muslim

Law of Marriage and Succession 37 (Eastern Law House, Lucknow, 1998). 22

S.A.Kader, Muslim Law of Marriage and Succession, 37 (Eastern Law House,

Lucknow 1998). 23

Tahir Mahmood, The Muslim Law of India 117 (LexisNexis Butwerworth, New

Delhi, 1980). 24

Tuhr is a period when a woman is not in her menstrual period and is pure. This is

basically to assure that husband is not acting in haste. And the husband resolve to be

separate from his wife, is not a passing whim, but is a result of self determination.


135

(b) During that period pronounce talaq and do not make it

irrevocable by your words;

(c) Revoke the Tale, if possible, before the expiry of the wife‘s iddat;

(d) If you do not revoke it by that time, at the expiry of wife‘s iddat

the marriage will stand dissolved;

(e) If you have exercised your power of Tale in this way, your behavior

has been ― best‖ (ahsan);

(f) Now you cannot revoke the talaq at your pleasure; but after expiry

of the wife‘s iddat you can marry the same woman with her

consent.

(ii) If you have revoked the talaq pronounced by you for the first time,

never pronounce it again. However, in case you find it necessary to

pronounce the talaq once again then,

(a) Wait till the wife enters the tuhr period;

(b) Pronounce talaq in tuhr;

(c) Do not by your words make, this second talaq irrevocable;

(d) Try to revoke this second talaq before the expiry of wife‘s iddat;

(e) If you do not revoke it then, at the expiry of wife‘s iddat the

marriage will once again stand dissolved;

(f) As before now, you cannot revoke the talaq at your pleasure, but

after the expiry of her iddat you can re-marry the same women

with her consent.

(iii) If you have succeeded in preparing yourself to revoke the talaq

(which you pronounced for a second time), never pronounce a talaq

again, but if, again, you really find it unavoidable to pronounce a

talaq, then:

(a) Wait for her being once more free from her menstrual periods;

(b) Know that if you now pronounce a talaq (for the third time) you

cannot revoke it anymore; also you will not be able even to re-

marry your divorced wife right away; if you so wish you will have

to pay a penalty-which, due to human nature, you will never like-

the penalty of finding your wife becoming somebody else wife and

remarrying her only if and when she is lawfully free of the second

marital bond (the halala);

(c) If, knowing all this, you still find it impossible to withhold yourself,

pronounce a talaq (for the third time);

(d) The moment you do so the marriage will stand dissolved;


136

(e) If you have exercised your power of talaq in this way, your

behavior is still ―good‖ (hasan).25

This is the one and only form of divorce which has been given in

the Quran. Further there is one more confusion that hasan talaq must

be given in three ―consecutive‖ or ―successive‖ tuhr. This is submitted

as wrong. The correct position is that if the husband has given talaq

once he should not pronounce the next talaq before the second tuhr but

he can give the same at any time during the subsistence of marriage

and that talaq will be counted as one. The same is the situation when

he pronounces the second talaq. Thus it should be understood that the

condition for next ―tuhr‖ for the second or the third talaq is that there

should be minimum time of one month for the husband to think and it

is not to be taken as maximum limitation.

III. Meaning and Nature of Triple-Talaq

Triple-Talaq is a form of talaq-ul-bid‟at in which, the husband may

pronounce the three formulae at one time, and it is irrelevant that

whether the wife is in state of tuhr or not. It is denoted in Arabic as

Mugallazah, means very hard-divorce which is most disapproved and

which does not conform to Talak-us-sunnat. The separation then

effects definitely after the woman has fulfilled her „iddat‟ or period of

probation.

Origin of Triple-Talaq

According to Asghar Ali Engineer, the Islamic Shariah which was

formulated more than hundred years after the death of the prophet and

had evolved under complex influences of various civilizations and

took away what was given to women by the Prophet and the Quran the

issue of triple divorce in one sitting illustrates this very well. It was

practiced during the jahiliyah period (times of ignorance) before the

advent of Islam.

The triple divorce was not allowed during the Prophet‘s lifetime,

during the first Caliph Abu Bakr‘s reign and also for more than two

years during the second Caliph Umar‘s time. Later on Umar (RA) 25

Supra note 12 at 3-4.


137

permitted it on account of a peculiar situation. When the Arabs

conquered Syria, Egypt, Persia, etc.., they found out women there

much more beautiful than their own women and hence were tempted

to marry them. But those women did not know about Islam‘s abolition

of triple-talaq in one sitting, and therefore insisted that before

marrying them the men should pronounce talaq thrice to their existing

wife which they readily accepted to do (as they knew that Islam has

abolished triple-talaq and that would not be effective) and even after

marrying with the Syrian or Egyptian women they would also retain

their earlier wives. When the Egyptian and Syrian women discovered

that they had been cheated, they complained to Umar, the Caliph, to

enforce triple divorce again in order to prevent its misuse by the

Arabs. He had complied with their demands to meet an emergency

situation and not with an intention to enforce it permanently, but later

on jurists also declared this form of divorce as valid and gave sanction

to it.26

Thus we see that triple-talaq came into being during the second

century of Islam when Umayyads monarch, finding that the check

imposed by the prophet on the facility of repudiation interfered with

the indulgence of their caprice; they endeavoured to find an escape

route from strictness of law.27

It must be noted that it was not Quran

but the Umayyad practice which gave validity to these divorces.

According to most of the jurists this divorce should not be given

effect to as it‘s against the principles of both the Quran and the

Prophet of Islam. Abdur Rahim is more pungent when he says ―I may

remark that interpretation of the law of divorce by jurists especially of

the Hanafi School is one flagrant instance where, because of literal

adherence to mere words and certain tendencies toward subtleties they

have reached a result in direct antagonism to the admitted policy of

law in subject.28

Such talaq is lawful, although sinful in Hanafi law; but in Ithna,

Ashari and Fatimi law it is not permissible. According to Tyabji, by a

deplorable development of the Hanafi law the sinful and the most

26


Id. at 491. 28

Abdul Rahim , Principles of Muhammadan Jurisprudence (All-Pakistan Legal

Decision, Lahore, 1958).


138

abominable forms have become the most common for ‗men have

always molded the law of marriage so as to be most agreeable to

them.‘29

Nature of Triple-Talaq

There is a great controversy regarding the effect of triple

pronouncement of the divorce at one and the same time. The

difference in the opinion of jurists is due to the difference in their

interpretation and application of the law. One class of the jurists is of

the opinion that no leniency is to be shown in the application of laws

so that people should not take undue advantage on that account. Abu

Hanifa and Malik, therefore, hold the three repetitions of divorce to be

final. The other jurists explained that Allah wants to treat people

leniently so that they may not be put to hardship, and also to minimize

the chances of separation. Hence, they hold three repetitions to amount

to one only. Ibn Rushd has explained that Islam believes in golden

mean.30

There is great controversy regarding the effect of triple

divorce at one and the same time.

Under the most of the classical schools of Sunni Islamic

Jurisprudence there is no material difference regarding the effect of

‗Triple Divorce‘ in substance, however, there is some slight difference

only in respect of procedure. According to Hanafi jurists this result in

a Mughallaza divorce though they call it an innovation. Whereas the

Shafii holds that if a husband repeats three pronouncements of divorce

but without intending, only for the emphasis it will result in a single

divorce but if he pronounces the three divorces intending or without

any intention, it shall result in three divorces. More or less same view

is held by the Hambali School. Maliki differ in their view in the sense

that they make a distinction between various expression used in the

pronouncement of divorce. The only progressive group is the Ahl-e-

hadis sect who accepts three divorces at a single sitting as one only.

Whereas in Shia law there is general consensus of opinion that the

29

Faiz Badrudin Tyabji, Muslim Law 163 (N.M.Tripathi LTD Bombay) 4th

edition

1968). 30

K.N.Ahmad, Muslim Law of Divorce 85 (Kitab Bhawan, New Delhi, 1978).


139

divorce in single sitting should be counted as one and the Imamia sect

go so far as to say that such a divorce is no divorce at all.

Legal and Religious Aspect of „Triple-Talaq‟

In Islam, law cannot be dealt with as a separate aspect from religion. J.

Mahmood in Govind Dayal v. Inayatullah31

held, ―it is to be

remembered the Hindu and Mohammedan Laws are so intimately

connected with religion that they cannot readily be served from each

other.‖

The above judgment is totally applicable in the cased of ―Triple-

Talaq‖, either the three pronouncement should be treated as one

revocable divorce or three divorces. For this problem both legal and

religious aspect are the same and the two aspect only deal with the

problem whether three divorces in single breath should be taken as one

or three.

Position of Triple-Talaq under Basic Source of Islamic

Jurisprudence

When the triple divorce is seen in the light of the four basic sources of

Islamic jurisprudence, we see that a principle to become a law has to

be supported by the Quran, Hadith, Ijma, and Qiyas. If the solution of

the problem is given in the Quran it is the final ruling of sharia, if

there is no clear exposition of it in Quran we examine the traditions of

Prophet (PBUH), and if the solution is there it must be taken as rule of

sharia. If the problem finds no solution in either of those, we refer to

general consensus of opinion or Ijma and if the problem has been

solved by Ijma it will also become rule of Islamic Law.32

31

(1895) 7 All. 775, 781; cf. Furqan Ahmed, Triple Talaq: An Analytical Study with

Emphasis on Socio-Legal Aspect 86 (Regency Publication, New Delhi, 1994). 32

Supra note 6 at 41.


140

Position of Triple-Talaq in Quran

In the Holy Quran there is nowhere been ordained the three divorces

pronounced in a single breath would amount to three separate

divorces. The verse of Quran relied upon is verse 2:229:

―Divorce must be pronounced twice and then (a woman) may be

retained in honour or released in kindness. And it is not lawful for you

that ye take from women aught of that which ye have given them,

except (in the case) when both fear that they may not be able to keep

within the limits (imposed by) Allah. And if ye fear that they may not

be able to keep the limits of Allah, in that case it is not sin for either of

them if the woman ransom herself. These are the limits (imposed by)

Allah. Transgress them not. For whoso transgresseth Allah‟s limit,

such are wrong doers.‖33

Accordingly Imam Razi writes:

―Divorce two times, this is, divorce on two separate occasions.‖ 34

He further says:

―A lawful divorce is that given separately because the existence of

‗two‘ is only possible when there is space between once and the

other.‖35

Thus it can be said that if two divorces in a same breath cannot be

regarded as valid divorce then how three divorces can be treated as

valid.

Also it has been laid down in holy Quran that when the divorce is

given it should be given for the prescribed period of waiting (iddat):

―O Prophet when ye (men) put away women, put them away for

their (legal) period and reckons the period, and keeps your duty to

your Allah, your Lord.‖36

The giving of divorce for the (Idda) ―waiting period‖ means that

the divorce is given at such a time as marks the beginning of Idda. He

who gives three divorces at a time does not take Idda into

consideration because with the pronouncing of first divorce the Idda

starts, but in the case of the second and the third the Idda has not been

33

Supra note 28. 34

Al-tafseer Kabeer (2) 260, as cited in supra note 6 at 44-45. 35

Ibid 36

Quran: chapter LXV, verse 1.


141

taken into account, although for every divorce it is necessary to have

regard for the Idda.37

In short, there is no Quranic basis to establish that three divorces

on a single occasion should amount to an irrevocable divorce. As to

deduction of one point from another, it is nearer to the purpose of

Quran to treat three divorces as one.

Position of Triple-Talaq in the Traditions of Prophet

We see that there is no express direction in the tradition of the Prophet

(PBUH) regarding the validity of three divorces together at one time.

There are different traditions of Prophet quoted by scholars regarding

whether three divorces at same time should be treated as one or three

distinct divorces. Those scholars who accept triple-talaq on a single

occasion as one quote following tradition in its favour:

It is said that the notion of three divorces as one is not altogether

baseless and invalid, but there is a ground for it which has always been

accepted by a group of ―Ahl-e-Sunnat Wal Jammat‖ (the followers of

the tradition of the Prophet and of the decision of the collective body

of Muslims). Here are the some of the saying of the Prophet (PBUH)

in brief:38

Abu Sahba said to Ibn-i-Abbas ―do you know whether the three

divorces were treated as one in the days of the Prophet and of Abu

Bakr and early years of Umar‘s Caliphate?‖ Ibn-i-Abbas replied, ―Yes,

it is known to me.‖39

In another saying it is stated that ‗Rakana‘ gave to his wife three

divorces at a time and the Prophet (PBUH) allowed him to retain his

wife.40

Shokani writes:

―And a group of the people of learning has preferred the opinion

that divorce did not become effective if pronounced successively and

in this situation there occurs only one divorce.‖

37


Supra note 6. 39

Muslim: al-Sahih,(1) Kitab-al-Talaqs as cited in supra note 6 at 30. 40

Ahmad Ibn-i-Hambal, Musnad (1) 265 as cited in supra note 6 at 30.


142

The author of Al-bahr has traced it from Abu Musa Ashaari, and

according to another narrative of Hazrat Ali, and another group

including Taoos, Ata, Jabirbih Yazid, Hadi, Qasim, Nasir Ahmad Bin

Isa, Abdullah Bin Musa Bin Abdulla has traced it from Ibn-i-Abbas.41

Whereas among those tradition which the scholars have quoted in

favor of treating triple divorce in same breath as three distinct divorce

has no express mention about it and there are other, of which, the

circumstances are different, and so, they provide no argument. Some

of them are weak or non-authentic. So there is none among those

which may be cited as basis of such conclusive argument. Some of

them are given below:

This tradition relates to ‗Uwaimir-Ajlani‘ in which the story of Lian

has been recorded:

―When both (husband and wife) had undergone the procedure of

‗swearing‘ Uwaimir said ―if I still keep her with me then I shall prove

to be a Lian‟ and again he gave her three divorces before the Prophet

(PBUH) had ordered it.‖42

This tradition is often presented to prove that Uwaimir gave three

divorces in the presence of Prophet and he did not object it and

allowed it. But it is not correct to argue from this tradition, because

after Lian there cannot be any re-union and the spouses cannot re-

marry even if they want. So the three pronouncements were only to

emphasize the Lian.

Further it has been argued that when Hazrat Umar held these three

divorces valid, it was in the presence of companions of Prophet who

did not object to it. But the important question to be asked here is that

on one hand is the judgment of Hazrat Umar and on the other hand

there is practice during the time of Prophet as well as Hazrat Abu

Bakr. So how can the practice of Prophet (PBUH) be abrogated, it has

to be preferred by all means.

Thus on review of all the religious literature it can be

authoritatively said that the on the question of effectiveness of triple-

talaq, there is no clear commandment in the Holy Quran or in the

41

Al-Shokani, Mohd. Bin Ali Bin Mohd. , Nainul Avtaar 21 as cited in supra note 6

at 30. 42

Supra note 6 at 31


143

traditions of Prophet (PBUH) nor any consensus of the opinion can be

proved.

IV. Role of Indian Judiciary

The view of judiciary on the subject of triple divorce has to be

analyzed critically so as to determine how the judiciary has examined

the controversy of triple-talaq prevalent in the Muslim world.

‗Triple Divorce‘ is recognized and enforced by Indian Judiciary

from inception, as early as in 1905 in the case of Sara Bai v. Rabia

Bai,43

the Bombay High Court recognized ‗triple divorce‘ on

irrevocable footing.

Further the Privy Council also in the case of Saiyid Rashid Ahmad

v. (Mst) Anisa Khatun44

recognized ‗triple divorce‘ pronounced at one

time as validly effective.

In Ahmad Giri v. Begha45

, the court for the first time counted the

role of intention as very important factor in determining the

effectiveness of the divorce. However, the court refused to bring about

any change in existing form of talaq-ul-biddat:

The basic reason for this attitude of the judiciary could be due to

the fact that judiciary in British India believed that the Muslims in

India have faith that there law is of ‗divine‘ origin, therefore is

infallible, immutable and unchallengeable. There was reluctance

among the judiciary on the account that a decision should not hurt the

feeling of the general Muslim. In spite of realizing the deficiency they

could not contribute meaningfully.

But later on a change in trend can be seen in the attitude of the

judiciary. Through the study of true Islamic law and writing of many

authors like Ameer Ali, Yusuf Ali, it was contradicted that the law of

divorce in Islam gave arbitrary and whimsical power to husband to

divorce his wife. As it has been already mentioned that the true Islamic

philosophy of ‗Talaq‘ as enunciated in Quran reveals that there is no

scope of arbitrary and easy divorce in Islam.

43

ILR (1905) 30 Bom 537. 44

AIR 1932 PC 25. 45

AIR 1955 J&K 1.


144

Mr. Justice Baharul Islam46

has given an eye-opening judgment,

and through the paramount source of Islamic Authority has given a

right meaning to law of divorce under Islam. Well aware of his

limitations imposed by the precedent of the Privy Council, he

attempted a bold break-through to reveal the true meaning and

connotation of talaq as envisaged in Quran. Finally, he projected the

true concept of talaq as enjoined by the great light that:47

(1) Talaq must be for reasonable Cause;

(2) It must be preceded by ―attempts at reconciliation‖; and

(3) It ―may be effected‖ if the said effects fails.

Logical conclusion of original sources of Islam relating to talaq

reveals that neither the husband nor the wife has the unbridled and

arbitrary power to divorce. In view of these facts unintentional triple-

talaq pronounced at single occasions, are in total negation to Sharia.48

Also, K. Iyer, J. in the case of A. Yousuf Rawthher v. Sowramma49

held that it is a popular fallacy that Muslim male has unbridled power

of divorce as it‘s against the injunction of Holy Quran. And that the

Muslim law as applied in India has taken a course contrary to the spirit

of Islam.

Also in the case of Rukia Khatun v. Abdul Khalique Laskar,50

the

Court went out to hold that the correct law of talaq as ordained by the

Quran is that the talaq must be for a reasonable cause and be preceded

by the attempts at reconciliation between the husband and wife by two

arbitrators, one chosen by the wife from her family and other by the

husband from his. It is only when their attempts failed talaq may be

effectuated. In Ahmadabad Women Action Group v. Union of India,51

a writ petition was filed to declare Muslim Personal Law which

enables a Muslim male to pronounce unilateral talaq to his wife

without her consent and without resort to judicial process of courts as

46

He was Chief Justice of Gauhati High Court and tried to give correct meaning to

law of divorce among Muslims in India. His view point on Talaq get support of Prof.

Tahir Mahmood‘s writings on Talaq: the Muslim Law of India (1980). Also it is very

unfortunate that most of his decisions have remained unreported, so the reforms were

further delayed. 47

Sayid Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25. 48

(1981) 1 Gau.L.R 368. 49

AIR 1971 Ker. 261. 50

(1981) 1 Gau. L.R. 375. 51

(1997) 3 SCC 573.


145

violating articles 13, 14 and 15 of the Constitution. However, court

refused to entertain the writ petition, because the issue involved state

policies.

But in early August 2004, the Lucknow bench of Allahabad High

Court reiterated the condition for a talaq according to shariat,

emphasizing the fact that it should be pronounced over three sitting,

since the talaq had apparently been sent by registered post.52

Further in the case of Riaz Fatima v. Mohammad Sharif,53

the

Delhi High Court held triple-talaq to be invalid in the eyes of law.

Recently in the case of Masroor Ahmad v. State (N.C.T of Delhi) &

another,54

Badar Durrez Ahmad, J., gave a decision totally in

consonance of Quran and the Sharia law. The question before the

court was about the validity of triple-talaq under the Muslim law. The

Court held that triple-talaq (Talaq-ul-biddat) ought to be regarded as

one talaq revocable during the period of Iddat. Further he laid

emphasis on the importance of reconciliation before the procedure for

divorce is to be started. Also the husband has to duly establish that he

has properly followed the procedure of divorce as laid down in the

Quran.

Thus we see that there has been sea change in the attitude of

judiciary. The triple-talaq is now neither enforced nor considered valid

by the judiciary. But still there is need for a decision from the Apex

Court in this regard. While triple-talaq continues to receive express or

implied recognition against its practice in large number of Islamic

Countries, which have periodically reformed or modernized their

personal law.

Reforms in Muslim Countries

The reservation made by Islam both in the Quran and the Hadith on

the unilateral right of the husband, in particular the disapproval of the

52

In this case, Sadiqunissa had pleaded that she was thrown out of her husband

house after she failed to fulfill the dowry demand and was also tortured. Later, when

she and her two year old son preferred an application under section 125 of CrPC for

maintenance, her husband filed an objection saying he had already divorced her and

the Talaqnama was sent by the registered post. 53

135 (2006) DLT 205 . 54

MANU/DE/9441/2007.


146

biddat form of divorce, and the introduction of dower and the Iddat

period provides only limited checks on the husband‘s power. In all

Mulim countries there has been pressure to introduce reform which

will safeguard the wife‘s right, and enable a proper opportunity to be

made to attempt to reconciliation.55

The laws of various Muslim

countries relating to the triple divorce are stated below:

The first of major reforms were in Egypt in 1920‘s. The Article 356

and 557

of the Law No. 25 (1929) expressly provides that triple-talaq

will be considered as one. In no other country except Iraq, women

have equal rights with men in the matter of divorce. Article 3758

of the

Iraqi Code of Personal Status 1959 also treats triple divorce as one.59

In Sudan and Jordan also the position is similar; section 360

of

Sudaneese Manshur-i-Qadi al-Qudat, and Section 6061

of Jordanian

Code of Personal Status, 1976 respectively provide that triple-talaq

shall be considered as one. Same principle is followed in countries like

Morocco Yemen, Syria. Further in Pakistan, section 7 of Muslim

Family Law Ordinance provides that the traditional form of divorce is

not in force in its original form. A divorce in triple pronouncement is

no longer considered mughllazah or final and it is open to spouses to

continue the marriage if reconciliation is brought about between them

within the prescribed period.62

55

David Pearl, Werner Menski, Muslim Family Law 93 (Brite Books, Pakistan,

2000). 56

―A Talaq accompanied by a number expressly or impliedly shall not be effective

except as a single divorce.‖ 57

―Every Talaq shall be revocable except a third Talaq, that given before

consummation, that for a consideration and that expressly described as irrevocable in

this law.‖ 58

Cl. (2) ―where a Talaq is coupled with number, express or implied, not more than

one divorce shall take place.‖ 59


―A formula of divorce coupled with number, expressly or impliedly, shall affect

only one divorce.‖ 61

―A divorce coupled with a number, expressly or impliedly, as also a divorce

repeated in same sitting, will not take effect except as a single divorce. 62

Tahir Mahmood, Family Law Reform in Muslim World 251 (LexisNexis

Butterworth, Delhi, 1972).


147

V. Effect of Triple-Talaq on Society

In Islam marriage has been regarded as an important function which an

ideal Muslim whether male or female should perform firstly in order to

save the society from unchastity and to build up a healthy society.63

This practice of talaq has deleterious effect on women; breaking of

a marriage contract has emotional and financial concerns. Often it is

not interest of women, which are at stake, but those of their children as

well.64

The trauma of triple-talaq is rife in the reality of women. For

example Sameera, a resident of Doungri, married a Moulana in 2001.

When she fell ill after her marriage and was advised to go to a

specialist, her husband was reluctant to spend money on her medical

expenses and refused to take her back. A month later, he called from

Lucknow and pronounced triple-talaq on the phone.65

In another situation, Amira was refused entry into the house along

with her children by her husband on returning from visit to her mother

house. Her husband claimed he had divorced her by pronouncing

triple-talaq, while Amira did not even know of it.66

Another is the high profile case of Najma Bibi from Orissa, where

the husband divorced his wife in inebriated condition only to regret it

later, brought to the forefront the regrettable consequences of the

triple-talaq practice.67

The scholars of Muslim law, who consider three divorces at a time as

one, argue that in our present social set up religion has been relegated

to such an extent that religious values have become eclipsed. It has

ceased to be a way life, a guiding source and an inspiration. This is

63


Seema Durray, ―Muslim Law of Divorce in India: A legal Reflection‖, in Imtiaz

Ahmad (ed.) Divorce and Remarriage Among Muslim 397 (Manohar, New Delhi,

2003). 65

Manoj Nair, ―Two Women recall ‗triple Talaq trauma‘‖, Mid Day, July 21, 2004. 66

Ibid. 67

In this case Nazma Bibi‘s husband divorced her in May 2004, following a quarrel

in an inebriated condition. Later her husband regretted his decision and the couple

continued to stay together. However, village elders objected to their living together

after the Talaq. The couple went to the local Maulvi and obtained a ‗fatwa‘

nullifying the divorce. This was not accepted to them who physically assaulted the

couple.


148

because we have neglected our prime duty to learn, explore and

acquire religious knowledge.68

But to this distortion of the true Islamic law of divorce has now

come a refreshing fatwa from some Indian theologians:

―If a man who has pronounced a triple-talaq say he did it either in

ignorance of law or merely to put emphasis on his words, his marriage

remain intact until the expiry of his wife‘s iddat- during this period he

can unilaterally revoke the talaq, if he has not done so within that

time, any time later he can marry her with her consent.‖69

VI. Conclusion and Suggestions

Islam is a religion with a very practical outlook. It realizes the

importance of institution of marriage but also regards that there can be

certain situations and circumstances in which relations between the

parties to marriage becomes so strained that, it is not possible for them

to continue with such relationship. In Islam though divorce is

permissible it is detestable, and should be resorted to only in extreme

circumstances which is permitted by the irretrievable breakdown

theory of the modern world.

Under Islam the relationship between the husband and wife is

pious and private and it is not conducive to bring it outside the home,

this is the reason that Holy Quran ordains that before the proceeding

for divorce can be started there should be steps taken by members of

both the families to have reconciliation between the spouses and when

all these efforts fail then only talaq should be pronounced. Further the

Quran has in detailed laid down the rules and condition to be followed

by the husband while pronouncing divorce on his wife. It has been

wrongly interpreted by many authors, jurists as well as courts that

Islam gives arbitrary, unilateral and unbridled power to the husband to

divorce his wife. A Muslim husband cannot divorce his wife at any

time or for any reason or for no reason. This was the practice which

prevailed in the Pre-Islamic Arabia, and was criticized by Prophet of

Islam (PBUH) as against justice, and demeaning to the women. And

therefore to eradicate this, the Prophet (PBUH) introduced reform in

68


See, supra note 12 at 11.


149

the divorce laws, but today the Muslims have reverted to same practice

which was abhorred by the Prophet (PBUH). The true law of talaq is

not as easy as it has been practiced by majority of Muslim.

It has been well argued that this form of unilateral triple divorce

has no Quranic injunction, further it cannot be traced in the traditions

of Prophet as most of the traditions quoted in the favor of triple-talaq

are either weak or are not authentic , moreover even if triple

pronouncement is there it has been interpreted as one. By going into

the historical background it has become amply clear that this form of

divorce only came into the practice after the death of Prophet (PBUH),

during Umayyad reigns to meet certain exigencies and was for that

period only.

The Prophet (PBUH) also gave the best declaration for women‘s right

in his farewell speech on the occasion of his last hajj. He demanded

that husbands should treat their wives with kindness and gentleness.

Men are to know that their women are their partners. Islam recognizes

the duties and responsibilities of both partners and, hence, emphasizes

that man is the ―Head‖, while the woman is the ―Heart‖ of the family.

Both are needed and both are complementary to one another.

The Muslim of today have totally forgotten the teachings of the

Holy Prophet (PBUH) as well as true spirit of the Islamic law which

gave women equal status as men as rights in all the domain of human

life social, political, economical as well as in the family.

So, to eradicate this practice it is necessary that firstly the

legislature should take a step forward and make laws in consonance

with the true Islamic law of divorce and to follow the precedent of

other Muslim countries who have reformed the triple-talaq in one

form or the other. Secondly it is very important the Muslim

community in general should be acquainted with the proper method of

divorce. And also to be made aware that resorting to this method of

triple-talaq is a sin. This can be done by mass education through the

medium of press and media. But the most important thing for the

evaluation of law is that law should be assessed in a society where it is

grown and developed; only then the utility of law can be understood. J.

Abdur Rahim and many other jurists have formulated this opinion.

There is a famous saying about law is that ‗He does not know the law

who does not know the spirit of law‘. However, whether it is


150

interschool divergence or reform in the family law it should be first

social only then legal, because the society should internalise the law

otherwise there is no use of law. The reform politics will never help in

the development of society until the members of society are not taking

them seriously.

Thus it can be concluded that this need not be mentioned that the

Muslims are required to follow the teachings of Holy Quran and

Hadith rather than the rule imposed by a Caliph over people for a

certain period of time to prevent them from deceiving the women and

making mockery of law of Allah. The rule or the law was for people of

that time whereas the Quran and Hadith are applicable for all times

and all people. Almost all the Islamic Scholars whether belonging to

Ahlehadis, Shia, Hanafi or any other school of thought agree that this

practice is either Haram or Biddat so Muslims must not allow this to

corrupt their society.

Samreen Hussain



151

CONCEPT OF „HUMAN‟ VIS-À-VIS HUMAN RIGHTS: AN

ANALYSIS

I. Introduction

A HUMAN being and a ‗person‘ do not mean the same thing as far as

the law is concerned. The traditional idea of a biological human being

or a member of Homo sapiens, being the centre or the sole concern of

all legal rights and obligations, has been replaced by a much broader

and more legal concept of a ‗person‘ to include entities which do not

necessarily possess all the biological attributes of a human being.1 The

general agreement about the need and propriety of a legal fiction to

personality does not necessarily mean that the idea of a human is

totally insignificant in all areas of law. Human Rights are entitlements

to which a person is entitled by virtue of being a human. All human

rights documents, starting from the Universal Declaration of Human

Rights re-emphasize the centrality of the concept of human and human

dignity.2 In other words it is inherently anthropocentric i.e. it is based

on the premise that human beings must be considered the centre or

above all aspects. It can be seen that this notion of anthropocentrism

has its roots in many religious cultures especially the Old Testament,

which propounds the view that God has given man the dominion over

all other creatures. This philosophy of humanocentricm consequently

paved way for the belief in dignity and moral worth of every human

being which is fundamental to the idea of human rights. The western

origin of the existing human rights discourse provides the historical

proof for such a conclusion.3

But this assertion of human, as the supreme amongst all creation

and the resulting significance of human rights discourse, is not

1 The idea of deodand under English law can be cited as an example where the

ancient law has attributed legal recognition to non-human animals and objects. In the

modern days a distinction is generally made between natural and non-natural persons

and by virtue of the legal fiction as to personality non-human entities like

corporations, states, idols etc. are granted legal recognition to a limited extent. 2 The Universal Declaration of Human Rights, states in art. I, "all human beings are

born free and equal in dignity and rights. They are endowed with reason and

conscience and should act towards one another in a spirit of brotherhood . . . ." 3 A different approach can be found in the Eastern and Native American thought

where non-human world is also considered relevant.

Concept of Human vis-à-vis Human Rights [Vol. 1 : 1

152

uncontested. There are a lot of people who reject the idea of

humanocentricm and argue for an inclusive ethical and moral standard

for the whole world, including animals and other elements of the eco-

system.4 For them the current human rights discourse aims at

reiterating human hegemony over other creatures and environment

who equally have a right to live and flourish and are capable of

creating imbalances in the ecology which might ultimately lead to total

destruction. Taking these into account the following pages examine the

foundations for the rights that human beings as a species claim, based

on the inherent dignity that they claim to possess. In other words-it is

an inquiry as to whether any rational foundation can be deciphered,

except for the membership in a particular species, as the basis for the

assertion of human dignity. Such concerns, as many may point out are

not within the scope of human rights as a discipline. But this is the

only probable discipline that can take into account the concerns of

other creatures and ecology as a whole, as is evident from the way

international environmental law is evolving. The first part of this note

identifies certain possible foundations on which the idea of

anthropocentrism is based. The latter part tries to analyze whether such

peculiarities of human nature is of any significance to the enjoyment

of those basic entitlements categorized now as ‗human rights‘.

II. Foundations of Anthropocentrism

Some of the possible grounds which claim that humans are the centre

of everything are identified here.

Biological or Physiological

Anthropologists and biologists consider man to be the most developed

creation in terms of his physical as well as cognitive faculties.

According to Thomas Hobbes, human nature consists of two

attributes- animal and rational. Animal attributes are the faculties of

4 For example there are many environmental philosophies like deep ecology, eco-

centrism etc. which emphasize the importance of non-human world and hold that

man is only a part of nature.


153

body5 whereas rational attributes are powers of mind-which are

cognitive, imaginative or motive.6 There are many physical features

that make man different from other creatures and thus enable him to do

things for which many others are incapable of. These include-the

capacity for stable bipedalism,7 capacity to use hands as manipulative

members,8 capacity of human foot for sustained locomotion over

irregular grounds9 etc. These physical features have played a

significant role in human advancement beginning from the primitive

tool making to the various modern scientific inventions. But the most

distinguishable feature of Homo sapiens is their developed brain. The

size of the brain in proportion to the body size is the highest in human

beings.10

This has contributed to cognitive faculties and abilities like

speech and reasoning, capacity for sustained attention, learning

abilities, concept formation,11

capacities to recall etc.12

Most of the

5 He classified faculties of body as power nutritive, power generative and power

motive. 6 Hobbes, The Elements of Law 2 (Frank Cass & Co. Ltd., 2

nd edn, 1969).

7 Bipedalism is the capacity to move on two feet. This combined with an upright

posture is one distinguishing feature of humans. Though there are other bipedal

mammals, their bipedal movements are often restricted to short runs, which can be

achieved by many monkeys, but they are in most cases incapable of striding or long

standing; J.Z Young, An Introduction to the Study of Man 471 (Oxford Publications,

1979). 8 Ibid. This capacity for a stable bipedalism enables man to use their hands as

manipulative members-from creating tools to using a computer and also brings the

advantage of a greater range of vision. Human nails, unlike the claws in other

primates allow him to have fine movements and hold things. The position and the

appropriate proportion of the thumb along with the peculiarities of the skin allow

him to hold things. This along with the alignment of the skin and the proportional

length and position of the thumb provide him with the ability to hold things. 9 Ibid. A human foot is quite distinct from those of apes and monkeys. Unlike the

other primate feet which have a mobile mid-foot the human foot possesses a stable

arch to give it strength. 10

Id. at 498. The number of the cells in brain is affected by the actual size of the

animal and the adaptive function of the brain. This refers to the gradual increase in

the number of cells in the brain during evolution in accordance with the changes in

the size of the body. A comparison of the estimates of adaptive cortical neurons in

mammals of different brain and body sizes show that the proportion of brain to body

size is highest in human beings. For a Homo sapien whose body weight is 6000 g.,

the brain weight would be 1300 g. whereas for an elephant it is 7000000:6000 and

for a Gorilla it is 250000:600. 11

Ibid. Concept formation refers to the capacity to recognize and abstract features

that a number of objects have in common such as food, wet etc. to more complex

aspects of ‗cause and space that involves abstraction from the data are provided by

several of the senses.


154

scholars consider these rational capacities as the most striking feature

of human species. Locke considered man as a "thinking intelligent

being‖. The mental or rational attribute of man has been differently

articulated by scholars in various terms like rationality, moral agency,

free will, unity of consciousness13

etc.

The communication system of the human world is distinct from

that of the animal world. Olfactory, tactile or auditory is also attributed

to their biological peculiarities.14

The various features of human

civilization, like language, 15

script, culture, religion, art etc though

have strong biological base, are transmitted through factors other than

genetics. The capacity to organize coherent and developing societies

with different forms of symbolism, institutions and laws including

family and social group is a distinct feature of humans. The capacity to

create aesthetic, artistic, religious and philosophical ideologies can

also be added. Thus it can be seen that apart from their biological

peculiarities man is-a socially and culturally constructed animal-which

possess certain value systems and religious beliefs. The sense of right

and wrong, expressed by philosophers as moral agency, is in part a

cultural construct. All these factors due to his rational abilities have

enabled man to live a life quite distinct from other creatures and to

develop a world view centered on them.

There are many who reject the idea that man is the supreme

creation taking into account his biological peculiarities and the

capabilities. According to them humans are simply biological

organisms of sufficient complexity.16

Man is widely accepted as an

animal, especially in the post-Darwinian period, where links between

12

Id. at 488. 13

Id. at 471. 14

Ibid. The linguistic signs are produced by rapid concurrent alteration of several

different parts of the upper vocal tract. There is some evidence to show that the

capacity to transmit and receive messages is an inherited feature of human brain.

The changes needed for the initiation of speech would be the brain and the muscular

system controlling the airway. 15

Ibid. Linguistic signs have the advantage of being open in the sense that there is an

infinite or very large possibility of combining them in such ways as to produce new

messages while, the non-linguistic systems are closed as they consist of a finite, and

small number of basic signs. 16



155

man and other animals in the form of a common ancestor, an extinct

primate somehow related to the other hominoids, is proved.17

Theological Foundations

Religion, especially the Judeo-Christian tradition, has contributed

much to anthropocentrism. Firstly the church believed that God has

made man in his likeliness.18

Genesis19

says ―Let us make man in our

image and likeliness‖ and ―when he appears, we will resemble him‖.20

According to Genesis, man is a creature amongst other creatures. But

it also says that he is not like other creatures- man is the final product

of the final act of divine initiative. Thus, this anthropomorphism21

of

Christianity had a major influence in developing an anthropocentric

approach in western thought.22

It is also provided in the Genesis that he was given the

responsibility of the Garden of Eden. He had the advantage of a direct

relationship with his Creator. Again, properties of fall and redemption

and sin and grace concern only the descendants of Adam, giving them

a nature radically different from other animals and plants. Another

important factor is the belief in life after death-the provision that only

a human being is entitled to an eternal living. Thus the belief in a life,

which is far more important than the temporal life, makes it impossible

to regard man as wholly a natural being. The idea of resurrection in

Christian theology means that the human body cannot be regarded as

having significance only in the mortal, physical world.23

These factors

influenced western thought especially in the medieval era where the

dominance of the church was at its peak. Basing on this theological

foundation, the western philosophy developed its human centric

17

Jens David Ohlin, ―Is the Concept of the Person Necessary for Human Rights?‖,

105 Colum. L. Rev. 209, 213 (2005). 18

Pierre De Tourtoulon, Philosophy in the Development of Law 7 (1969, Rothman

Reprints). 19

The main narrative first book of canonical Jewish and Christian scriptures. 20

Genesis 1.26 and 1 John 3.2, as seen in Saint Thomas Acquinas and Brian J.

Shanley, The Treatise on the Divine Nature, 43,(2006). 21

An interpretation of what is not human in terms of human characteristics. 22

Anthropomorphism is not peculiar to Christianity and can be found in the images

of Hindu Gods as well. 23

Richard H. Hiers, ―Reverence for Life and Environmental Ethics in Biblical Law

and Covenant‖, 13 J. L. & Religion 127,130 (1996-98).


156

thought. The basic premise was ‗reason‘ which according to them

distinguished man from other animals.

Philosophical foundations

A Latin apothegm states, "In the world there is nothing great but man,

and in man there is nothing great but mind."24

This thought runs

throughout the western philosophy and forms the basis of its

justification for anthropocentrism. The earlier Greek philosophy which

heavily influenced the western thought, more or less endorses the ideas

of supremacy and dominion of human over all other animals. The

Greek believed in the hierarchical order of beings - the Great Chain of

being25

-which places man on a scale of perfection, placing him above

most animals. But western philosophy correspond more to stoicism,

which has the least concern for animals, rather than the Aristotelian or

Platonic ideas, when it comes to the position of man and treatment of

non-humans. 26

Stoicism like Christianity advocates the capacity for

reason and moral choice as the unique source of dignity in any natural

being. Beings which lack the source of that dignity would be naturally

out of that moral or ethical community.

Plato considered soul as the essential human attribute. It is an

immaterial or non sexual entity capable of being re-incarnated in

different human bodies. There is thus a divorce between the rational,

or spiritual and material aspects of a human being.27

According to

Aristotle it is only the ability to reason which distinguishes man from

24

Kylae Ash, ―International Animal Rights: Speciesism and Exclusionary Human

Dignity‖, 11 Animal L. 195, 196 (2005). 25

The hierarchy goes as follows- mineral, vegetable, animal, man and finally divine

beings superior to man. 26

It can be seen that in the later writings like that of Plato and Aristotle recognition

of the worth and dignity of all living creatures is recognized. Platonic writers

defended an elaborate ethic of vegetarianism and respect for animal life (though

founded on metaphysical doctrines of transmigration of souls in to animal bodies)

and Aristotelians argued that all the nature is a continuum, and that all living

creatures are worthy of respect and even wonder. See Martha C Nussbaum, Frontiers

of Justice, Disability, Nationality, Species Membership 328 (Oxford Univ. Press,

2006). 27

Aristotle rejected this dualism and according to him soul is form of the body,

giving life and substance to the specific matter of a human being, Infra note 30, 552.


157

the rest of the animal kingdom.28

Western philosophy has stressed on

the reason and intellect of human rather than his physical features.

According to St. Augustine, over all is the rule of the God. This

―eternal reason‖ which creates and gives purpose to every part of

creation as well as to the creation itself has also been imaged in the

being of man and is reflected in his intelligence and will.29

He relied

on the Platonic conception of soul and maintained that the seat of will

was reason. When people exercise will they are acting in the image of

God, the supreme rational being. Similar observations were made by

St. Thomas Aquinas who regarded man as the first and foremost

creature of God.

Further, he contended that having been created in the image of God

and given the gift of reason by virtue of which he has free will; he

must take the burden of moral responsibility for his own actions.30

John Austin equated natural law to "Divine laws, or the laws of God,

or laws set by God to his human creatures . . . ." He said, furthermore,

that man was bestowed upon the reason to discover those laws which

were not promulgated in its entirety.31

Utilitarianism also, though

compassionate to animals, supported the idea of human superiority

based on his cognitive abilities. 32

The philosophers of renaissance, though had a marked difference

from the Greek-Christian tradition, maintained the higher and distinct

nature of human being. According to them what distinguishes man

from other creatures is that he has been created without form and with

the ability to make of himself what he will. Being without form or

nature he is not constrained, fated or determined to any destiny. In this

way man‘s distinctive characteristic becomes his freedom; he is free to

make himself in the image of God or in the image of beasts.33

This is

28

Lawrence C. Becker and Charlotte B. Becker (ed.), 1 Encyclopedia of Ethics, 70

(Routledge, 2nd

edn., 2001). 29

David L. Sills (ed.), Encyclopedia of the social sciences, 70, (1968). 30

25 Encyclopedia Brittanicca (Macro) 552 (15th

edn, 2007). 31


It is pointed out that the claim that subjugating other animals is "utilitarian" is a

misuse of the word as Mill meant it. Though Speciesism or human superiority is

prevalent in Mill's writings and has been the general attitude of most of his utilitarian

successors, he was adamantly opposed to the treatment of other animals as slaves and

objects. 202 33



158

based on a belief that man is non-natural and god-like and that he must

win his right to dominion over nature and in doing so he earns his

place near God in the life hereafter.

Kantian social contract also prefers the distinct character of

humans because of their commitment to rationality and the basic

conception of political principles as deriving from a social contract

among rough equals.34

Similar views can be seen in the writings of

John Rawls as well, when he points out that two features or moral

powers as he calls it, that distinguishes man from other creatures are-a

capacity for a conception of the good and a capacity for a sense of

justice, at least to a certain minimum degree. 35

A different stream of thought can probably be found in the writings

of skeptics, who insisted on the limited nature of man‘s capacities and

argued that the only form of knowledge he has is based on his

experience. Thus they maintain that human understanding even with

the faculty of reason is limited.36

19th

century philosophy also shows

some deviation from the western idea of humanocentricm which was

spearheaded by the secularization of philosophical discourses.37

Consequently man began to be perceived as a biological creature or

just as a part of natural world. But the significance of these thoughts

cannot be over emphasized because it can be seen that all the western

philosophers starting from Aristotle, to Immanuel Kant, Thomas

Acquinas and John Rawls, despite their differences, agree that reason

distinguishes man from an animal and probably entitle him to an

exalted status.

III. Rationality and Human Rights

The most significant aspect of man, as evidenced from the above

discussion, is his capacity to think or to make rational or moral choice,

apart from the physical characteristics that provide him with an

advantage over other creatures. All philosophers, despite their

differences agree that it is the capacity to think or reason that

34


Ibid. 36


Supra note 30 at 557. By late 19th

century the German philosopher Nietzsche had

announced that the God was dead.


159

distinguishes man from other creatures. In other words, it is the

capacity of moral agency which distinguishes man and entitles him to

have certain rights. A moral agent is one who can be ―an author of his

own actions, a creator of his own life‖.38

Moral agency requires that

one has knowledge of relevant circumstances and how one's choices

will likely affect the basic interests of others to freedom and well-

being. Putting in another way, a moral agent is one who does not

merely responds to a particular stimulus in some predetermined way,

but is able to evaluate an appropriate response by treating the interests

of others as deserving the same level of respect and consideration as

one regards their own interests.39

The same reasoning for human

dignity can be found in the international human rights documents as

well. For instance, the Universal Declaration of Human Rights, states

in Article I that, "all human beings are born free and equal in dignity

and rights. They are endowed with reason and conscience and should

act towards one another in a spirit of brotherhood . . . ."

But it is questionable whether rationality or moral agency is a pre-

requisite for the enjoyment of human rights. It can be seen that many

of the fundamental human rights like right to life or freedom from

torture etc. do not demand a fully developed moral agency or

rationality. They are aimed at protecting a person against pain and

suffering and also ensuring him a chance to have a life pursuing the

good inherent in him. Thus unlike other rights like the right to vote or

right to participate in the public life, which demands certain amount of

rationality and understanding in relation to the political system, theses

basic guarantees can be enjoyed by entities who do not have

intelligence or rationality according to anthropocentric standards. A

limited understanding of this fact can be seen even in the existing

human rights discourse in the form of limited recognition of persons,

who lack rationality or moral agency. Some of the illustrations are

given below, where personhood is recognized for the purposes of

human rights, in the absence of fully developed rationality or moral

agency.

38


Vincent J. Samar, ―Abortion: the Persistent Debate and Its Implications for Stem-

cell Research‖, 11 J. L. & Fam. Stud. 133, 136 (2008).


160

Embryos and Foetuses- whether human?

The status of an unborn child as far as human rights is concerned, is

probably one of the most controversial area in the modern day human

rights jurisprudence. Most of the human rights documents are silent as

to the ‗personhood‘, that is necessary for human rights especially with

respect to the right to life of the human embryos.40

But the general

opposition to allowing unrestricted abortion and the prohibition against

use of embryos for stem-cell research would point to the fact that they

are recognized as humans, at least for the limited purpose of human

rights. The objection against creation or destruction of human embryos

for stem-cell research points to the fact that they are not treated merely

as human tissues or parental property. 41

Thus it can be seen that

though the embryos and foetus lack rational agency or even the

physical structure of a complete human being, they are not completely

denied the status of a human, though recognition in explicit terms is

not made.

Human Rights of Children?

The human rights of under developed children with respect to their

rational as well as physical capacity, is another example. Human child

has a prolonged childhood and it takes many years to develop the

rationality and understanding of a full grown adult. Still the

international human rights documents protect the rights of child and

ensure that all the facilities are available to them for their full

development.42

Children are entitled to human rights as they are

biological human beings, but their freedom of choice is restricted

because they have a limited moral agency.43

Though the child must not

have developed all the hallmarks of rational agency depending on his

or her age, such capacities develop over the time and this assumption

40

American Convention guaranteed right to life from the moment of conception. 41

Mailee R. Harris, ―Stem Cells and the States: Promulgating Constitutional Bans on

Embryonic Experimentation‖, 37 Val. U. L. Rev. 243, 244 (2002). 42

Convention on the Rights of Child. 43



161

for its potential to become a rational or moral agent is the basis for

attributing human rights.44

Mentally Disabled and Brain Dead Persons?

The recognition of the human rights of the mentally disabled people

point out to the fact that the division between biological features and

mental faculties is irrelevant as far as human rights is concerned.45

The

capacity of moral agency varies among mentally disabled, depending

on the nature of disability, but international human rights law does not

deny them basic rights; instead they are given special protection to

have a comfortable living. Same is the case with brain dead people,

whose cognitive faculties are nil, still the law finds it difficult to treat

them as dead or deny them the right to life and dignity.46

Concern for

their rights can be seen in the public resistance and legal reluctance to

legalize euthanasia in cases of brain dead patients.

IV. Concluding Remarks

In all the above examples it becomes clear that rationality or moral

agency arguably inherent in every human being, fails to provide a

convincing argument as the basis of human dignity and thus human

rights. This leads one to recognize the truth in the assertion that the

basis of human rights is premised on ‗species membership and

exclusive human dignity.‘47

Many have criticized this assertion of

species superiority as ‗arrant human chauvinism.‘48

This assertion,

formulated to serve the selfish interests of man, can be seen in various

branches of law where he considers non-humans and ecology as

property, which can be owned, controlled and even destroyed by him.

Extension of such an attitude to human rights is highly unfortunate.

Meta-physical considerations would undermine the prospects of its

44

Ibid. 45


Ibid. 47

Terminology used by Kyle Ash. See Supra note 24. 48

Id. at 200.


162

legitimacy and progression.49

The second assertion on which human

rights is based is that of ‗exclusionary human dignity‘ i.e. dignity

peculiar to the members of human species. This has been rejected by

many contending that dignity need not be species-specific. Dignity is

synonymous with respect or worth and that the idea of human dignity

need not be formulated in comparison to a lesser or lack of dignity in

other species.50

An exclusionary human dignity, in the nature of

protecting man, at the cost of other members and even the ecology

would point out to the arrogance and selfishness in man.51

It is worth

mentioning in this context that there are some other thoughts, like the

eastern philosophy and some of the environmental philosophies which

explores the possibility of ethical considerations beyond ‗speciesism‟

and emphasizes the need for an ‗ethical co-existence‘. The increasing

environmental challenges threaten the existence of humans on earth,

which compel us to think beyond the constraints of speciesism.

Sreeparvathy G.

49

Supra note 24, Kyle Ash According to Kyle Ash the supremacy of human is based

on three propositions First, the cognitive abilities that humans have are the greatest

assets an animal can possess. Second, humans possess this ability and other animals

do not. Third, humans are superior because they have this asset. 50

Ibid. 51

Id. at 209. This has been articulated by Roger Brownsword in the following words-

―To say that humans have dignity, meaning that humans have a value, simply by

virtue of being members of the human species will not convince even fellow humans.

For, any attempt to privilege the members of a particular species, including the

members of the human species, merely by virtue of their species-membership will

attract the charge of "speciesism"--such a response is arbitrary and it plainly will not

do.‖ LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.


163

LAWS ON FOOD ADULTERATION: A CRITICAL STUDY

WITH SPECIAL REFERENCE TO THE FOOD SAFETY AND

STANDARDS ACT, 2006.1

I. Introduction

INDIA HAS been called the land of Annapurna. Food and water are

not only the elixir of life, but they are worshipped as gods. In spite of

this fact, the evil of food adulteration is not only present in the society

to a great extent, but its history can be traced back to the times of

Kautilya.2

Recently, during Deepawali festivities there was no dearth of news

reports on the television and the local newspapers on how the

adulteration is being done in the sweets by the businessmen. As it is

the only time that the news channels are very active educating and

informing the public, that it seems festival is the only time when such

malpractice is on. But, the reality is that we hardly consume food on

any day, which can be considered pure and unadulterated. The food

items and the ingredients that we use to prepare food contain

adulterants. During the parliamentary debates in the Lok Sabha, one of

the Members of Parliament, Mr. Shailendra Kumar, shared his view on

the seriousness of the problem, as follows:3

…there is adulteration in milk. Urea and Oxitocin are mixed in

milk which causes a great risk of abortion and impotency. I was just

going through the report that adulterated biscuits in the name of

glucose and other brands worth 25 crore were seized in Punjab.

Likewise, I would like to remind the honourable minister that the

adulteration in mustard oil in the year 1988 had resulted in spread of

the disease cancer named ‗dropsy‘….mixing of coal-tar dye in pulses,

tea, and coffee lead to cancer…Lead Chromite is mixed in turmeric

1 Act 34 of 2006.

2 R.P. Kagle, 4(2) The Kautilya Arthashastra 260-270 (1970); see chapter 2, s. 77.

Kagle has translated those proses into English as follows: ―As to difference in weight

or measure or difference in price or quality, for the weigher and measurer who by the

trick of the hand brings about (difference to the extent of) one-eight part in( an

article)priced at one panna, the fine is two hundred (pannas)... For mixing things of

similar kindwith objects such as grains, fats, sugar, salt, perfumes and medicines the

fine is twelve pannas.‖ 3 21 Parliamentary Debates, Lok Sabha 390 (Jul. 26, 2006)

Laws on Food Adulteration [Vol. 1 : 1

164

which results in serious diseases like paralysis, anemia and abortion,

etc. Copper salt is mixed in pickle which affects kidney. Rangoli is

mixed in salt which causes stomach diseases…Injectioins are being

used in vegetables for their early growth…injections to the cows and

buffaloes to get more milk and profit…Similarly, the sweets contain a

material named Metabil Yelova road mill which carries the risk of

cancer.

As ‗food adulteration‘ is done in so many ways, one must precisely

know what the exact definition of the term is. The Prevention of Food

Adulteration Act, 19544 defines the terms ―adulterant‖

5 and

―adulterated‖6 in so many words. In layman‘s language it means

debasing of food article with an inferior or deleterious substance. It is

a kind of slow poisoning. It is destruction of human life.7 It is the

gravest of socio-economic crime. We call it socio-economic crime

because it is done with the purpose of attaining profit. It has the

tendency to erode national health, character and economy, in equal

measure. The adulteration, by affecting the human resource of a

nation, has direct impact on national progress and production (GDP) of

a country particularly India which is a developing country. This may

be the reason why Food Safety and Standards Act, 20068 defines the

term ―unsafe food‖ instead of adulterated food.

The serious problem before the nation in the form of a conundrum

is that if the evil practice of adulteration can be traced back to

antiquity, then so is the legal remedy, that has always been in place.

Unfortunately, one remedy was replaced by the other with the passage

of time, without any change in the situation. As a matter of fact history

of food adulteration has been history of legislations. Going in the past,

there were rules in Arthshastra. During the British era, the Indian

Penal Code, 1860, came into force.9 The individual state laws,

imposing strict liability started coming into force since 1912. Finally,

4 Hereinafter referred to as ‗PFA‘.

5 S. 2(i), PFA says adulterant is ―any material which is or could be employed for the

purpose of adulteration.‖ 6 S. 2(ia), PFA.

7 ―It is often described as subtle murder practiced on community‖; see Mahesh

Chandra, Socio-Economic Crime 85 (N.M. Tripathi Pvt. Ltd., Bombay, 1979). 8 Hereinafter referred to as ‗FSSA‘.

9 Ss. 272 and 273 of the Indian Penal Code (IPC), 1860 deal with it.


165

the central law and the rules there under were enacted in 1954 and

1955, respectively, which is operative till date. Subsequently, a number

of orders were passed relating to fruit, meat, vegetable oil etc. In 1986,

after the enactment of Consumer Protection Act, remedy came to the

consumers by way of compensation as well, which is a codified form

of law of torts.10

Presently, the central government has enacted the FSSA, 2006,

which is the consolidation of all the existing laws on food in general,

and food adulteration in particular. On November 18, 2008 the

provisions related to the establishment of the Food Safety and

Standard Authority came into force. Till date, the Central Authority11

has been established under the Act and the enforcement of rest of the

provisions is still awaited.12

The authority is working on the Rules and

Regulations to implement the Act.13

As soon as the Act completely

comes into force, all the legislations and the orders presently in force14

including the PFA will cease to have affect.

It is evident after going through the FSSA, 2006 that it is better

than PFA in many ways, but the actual implementation is yet to be

tested which can be done only once the legislation comes into force.

Before that is done, one has to really see where the problem lies. Is it

in the law or is it in the implementation? Or is it that the solution lies

entirely elsewhere?

As FSSA, 2006 is more or less framed on the basis of international

model the direct question of feasibility of such a law in the Indian

context comes in. Does India have the required machinery to

implement the law? In other words, do we have the required quantity

and quality of laboratories which are of foremost importance to assure

the implementation of the Act? According to V.S. Deshpande J.,15

apart

10

The Consumer Protection Act, 1986 is also available to the consumers in spite of

PFA being in force. 11

Office is established in Delhi. 12

The Central Government has repeatedly assured to bring the legislation in force

very soon. Last time it was done in March, 2009. According to the assistant Director

General, Mr. Dhir Singh, the Act will become fully operational in the beginning of

2010; see The Financial Express, Mar. 15, 2009 13

As notified on www.fssai.gov.in (visited on Oct. 22, 2009 at 12:35 pm). 14

According to s. 97 of the FSSA, 2006 read with sch. II. 15

Former Chief Justice of the Delhi High Court; see the forewords to the book by

Mahesh Chandra, Socio-Economic Crime (N.M. Tripathi Pvt. Ltd., Bombay, 1979).


166

from many other reasons, lack of concerted and organized opposition

by the society is the contributing factor. The battle against the socio-

economic crime in general has to be fought on legal as well as extra-

legal planes.

As we critically analyze the FSSA, 2006, we see that there are

advantages as well as certain loopholes that are yet to be filled and

some questions that have remained unanswered. The quest for pure

food is still on…

II. Food Adulteration: As Part of Different Laws

Before analyzing the FSSA, 2006 one needs to find out the remedies,

if any, provided under the other existing legislations. Starting from the

Constitution of India, right to pure food is not directly protected under

the Constitution but it can be covered under certain provisions such as

part of fundamental freedoms, the Constitution guarantees under

Article 19(1) (g) freedom of profession, trade, or business, thereby

ensuring that state cannot prevent a citizen from carrying on a

business, except by a law imposing a reasonable restriction in interest

of general public. Under Article 19(2), no such right can be enforced

where the business is dangerous or immoral. There can be restriction

on harmful trade.16

Right to food is a fundamental right under article 2117

and

similarly, right to health is also a part of right to life. It has been held

in number of cases that life is more than mere animal existence. For

example, in Kharak Singh v. State of U.P.,18

it was observed, ―Article

21 mean not merely the continuance of a person‘s animal existence,

but right to the possession of his organs, his arms and legs etc.‖ It

cannot be argued that health is not a part of life when possession of all

organs of the body is protected by the fundamental right to life.19

16

Harishankar v. Dy. Excise & Taxation Commissioner, AIR 1975 SC 1121. 17

As recently reiterated by the Apex Court in PUCL v. Union of India, 2007 (1)

SCC 719. 18

AIR 1963 SC 1295, 1312. 19

H.B. Giri, Consumer, Crime, and Law 87 (Ashish Publishing House, New

Delhi,1987).


167

On one hand there are rights then on the other hand are the duties

of the state under article 39 (e) and (f)20

and article 47 of the

Constitution to raise the level of nutrition and standard of living and to

improve public health. The Supreme Court in Vinscent v. Union of

India,21

held, ―Maintenance and improvement of public health have to

rank high as this is indispensable to the very physical existence of the

community and on the betterment of these depends the building up the

society which the constitution maker envisaged, attending to public

health, in our opinion, therefore is of high priority, perhaps the one at

the top.‖

Finally, according to Schedule VII, adulteration of foodstuffs and

other goods is given under entry 18 of the Concurrent List.

The adulteration of food with an intention to sell is an offence

under sections 272 and 273 of the IPC which is punishable with the

imprisonment of six months and fine. States like U.P., West Bengal

and Orissa have enhanced the maximum punishment to life

imprisonment.22

The act is punishable when adulteration makes the

food article noxious. According to Oxford English dictionary,

―noxious‖ means injurious, hurtful and unwholesome. In Ram Dayal v.

King Emperor,23

Privy Council held that the mixture of pig fat with

ghee would be noxious to the religion and social feeling of both

Hindus and Muslims, still it does not come under the section (as it is

not noxious to the health). Similarly presence of non-permitted red oil

solvable coal tardy, the percentage of which has not been reported, is

not noxious.

Under the Code of Criminal Procedure the offence is non-

cognizable and bailable and not compoundable. The trial can be

20

The State shall, in particular, direct its policy towards securing- (e) that the health

and strength of workers, men and women, and the tender age of children are not

abused ….and (f) that the children are given full opportunities and facilities to

develop in a healthy manner… 21

A.I.R. 1987 SC 990 at 997. 22

An interesting question that arises here is that whether the increased punishment

has lowered the rate of the cases of food adulteration in these states. This can be

found out from the data given on www.indiastat.com. If the answer is ―no‖ then it

proves the failure of the approach and indicates that the solution lies somewhere else

and not in punishing the accused simply. 23

As cited in S.K. Sarvaria‘s (ed.), 2 Ra Nelson‟s Indian Penal Code 2338

(Lexisnexis-Butterworth and Wadhwa. Nagpur, 10th

edn., 2008); A.I.R. 1925 All

214(1).


168

conducted by any magistrate. In U.P. and Bihar there is no period of

limitation prescribed for taking of cognizance of the offence.

According to section 455(2) of the CrPC, the court may, in the like

manner, on conviction under sections 272 and 273 of the Indian Penal

Code, order the food, drink etc. in respect of which conviction was

made, to be destroyed.

In Emperor v. Barumal Jawarnal,24

it was held that selling wheat

containing a large admixture of extraneous matters, as foreign matter is

separable and wheat is not consumed in its existing condition. There

the offence was not committed. Similarly, according to Dhawa v.

Emperor,25

the mixture of water with milk is no offence, as the mixture

is not noxious.

By going through the provisions and moreover the cases under the

sections, we can easily conclude that there are loopholes that allows

the easy acquittal of the accused. Firstly, the case will not be covered if

the article of food is not noxious and secondly, it has been difficult to

prove the intention or the knowledge to sell.

Any person committing the offence is prosecuted by the state but

the consumer who was the victim of adulteration hardly gets any relief

under the IPC. In 1986, the Consumer Protection Act26

came into force

which provided for compensation to the consumers. While the PFA

and the FSSA, 2006, which will be dsicussed shortly, are piece of

consumer legislations that specially deal with malpractice of traders

with regard to food, the CPA is an umbrella legislation, which covers

each and every good and service that a consumer buys or hires on

giving consideration. The remedy available to the consumer is

compensation under CPA. The PFA provides for punishment and

fine.27

The procedure followed here is criminal procedure. In the

FSSA, 2006 there is a unique blend of penalty in way of fine and

punishment28

and compensation.29

24

Id. at 2345; (1904) 1 CrLJ 618. 25

As cited in K.D. Gaur, A Textbook on the Indian Penal Code 350 (Universal Law

Publishing Co., New Delhi, 3rd

edn., 2004); A.I.R. 1926 Lah 49. 26

Hereinafter referred to as ‗CPA‘. 27

PFA, s. 16. 28

Id., ss. 50-58. 29

Id., s. 59.


169

J.F. Kennedy (in 1962) declared some basic consumer rights as

right to safety, right to be informed, right to choose, and right to be

heard.30

Right to redress, right to healthy environment, can be added to

it. The CPA recognizes these rights in the objectives.

The CPA is special in a way that it follows its own tribunal system

from the District Forum to National Commission from where the

appeal goes to the Supreme Court. These tribunals are established

under the article 323B of the Constitution. Section 3 of the Act says

that the provisions of the CPA are in addition to provisions of any

other all laws for the time being in force. It means that provisions of

all the laws are equally applicable for the protection of the interest of

the consumer. Therefore, CPA and the PFA are equally applicable.

The Prevention of Food Adulteration Act, 1954

A very important step towards the addressing of the problem of food

adulteration was done in the year 1954 by enacting a central legislation

on the subject keeping in view the limits of the penal code. For

example, it does not cover the mixing of the substances that are not

noxious as water in milk and stone and inferior quality grains in

pulses. Moreover, it requires proving mens rea. The Act provides for

strict liability and at the same time condition of adulterated food to be

‗noxious‘ is done away with.

Prior to this there were number of state laws for each state, which

were enacted at different times and without mutual consultation

between the states. In 1937, a committee was appointed by the Central

Advisory Board of Health and it advised for the central legislation to

bring uniformity in the law. The basic idea behind is deterrent theory.

It has 25 sections and the rules were framed under it in 1955.

In Municipal Corporation of Delhi v. Surja Ram31

the object of the

Act was explained as follows:

…[T]he object and the purpose of the Act are to eliminate the

dangers to human life from sale of unwholesome article of food…it is

30

Ravulapti Madhavi, ―Is Food Safety Lurking in the Food Safety and Standards

Act, 2006?‖, 4(23), SCJ (Jour) 17 (2008). 31

As cited in Parkash C. Juneja, ―Prevention of Food Adulteration Act and

Consumer Protection‖, 8 Central Law Quarterly 371(1988); (1965) Cr.LJ. 571.


170

enacted to curb the widespread evil of food adulteration and is

legislative measure for social defense. It is intended to suppress a

socio-economic mischief, an evil that attempts to poison, for monetary

gains, a very source of substance of life and well being of the

community.

The Act provides for a Central Food Laboratory32

and the Central

Committee for Food Standards. The central government is vested with

the rule-making power. As per the need, the Act was amended four

times -1964, 1971, 1976, and 1986.

Loopholes in the PFA: Roscoe Pound, while classifying the social

interests under six heads, placed public health at top of it. As already

mentioned, in India also it is one of the directive principles of the state

policy. In spite of this fact, the object of the legislations has not been

achieved yet. There can be ‗n‘ number of reasons behind it, but the

doubt starts from the effectiveness of the legislation itself. There are

many critics of the PFA who have pointed out a number of loopholes

in it.33

Some of the prominent ones are mentioned herein, like the Act

does not provide for the mandatory standardization of food products.34

There is no requirement for training to the food inspectors. Usually,

they don‘t know how much sample to take and in what quantity the

preservative is to be mixed in the sample because of which the samples

are usually destroyed by the time they are tested. The minimum

number of such inspectors required for the area is not given. In other

words, the inspector to the population ratio is missing in the Act.

The PFA gives right to any person to get the sample tested if he

thinks that it contains deleterious substance under section 12. But for

this he has to pass two hurdles. First, he has to inform the seller the

purpose for which he is taking the sample and second that for analysis

he has to pay the requisite fees. As far as the first issue is concerned,

no trader who is really guilty will allow the consumer to take the

sample. Secondly, though the fee is refundable if the analysis report is

positive, it is not possible for all to afford it initially, as it is usually

32

To which food samples can be referred to for final opinion in disputed cases. 33

Prominent critiques are compiled herein. 34

Even quality control under Agmark for agricultural commodities including food

item is voluntary. See, Subhash C. Sharma, ―Consumer protection‖, 8(4) Central

India Law Quarterly 377 (1995).


171

costly affair. Moreover it is always doubtful whether the analysis will

be cent percent precise.

There is the major problem with procedural part of the Act. The

Act fails to mark distinction between the categories of adulteration and

have same punishment for all kind of adulteration.35

According to

P.A.S. Rao36

though an honest attempt has been made to classify the

penalties into seven categories, it is unintelligible and obscure. ―The

procrustean cruelty is writ large in the provisions of section 16.‖37

While sentencing, the judge has no discretion as there is provision of

minimum punishment. On the contrary, a burden is placed on him to

state in judgment the special and adequate reasons as to why a

particular punishment is meted out.38

Lack of coordination has been

witnessed between the food inspector and public analyst who are not

legal persons and the public prosecutor who is not technical person.

This benefits the accused.39

Moreover, the magistrates usually handling

criminal cases are not specialists in food adulteration matters and at

the same time they have the mindset of giving benefit of any doubt or

any inordinate delay to the accused, which spoils the prosecution case.

On one hand we can see that the procedure adopted makes it

difficult to prove the accused guilty, on the other hand the PFA is

covered under the Probation of Offenders Act, 1958. According to

section 20AA of the PFA, the Probation of Offenders Act, 1958 and

section 360 of Code of Criminal Procedure, 1973 are applicable to the

persons convicted under the PFA. As a result of this even the

perpetrators of the heinous socio-economic crime like this, which are

covered under the strict liability, are let loose after getting caught for

the first time.

Coming to the practical side, under the present scenario the

retailers are not in the position to press the manufacturers for giving

35

Subhash C. Sharma, ―Consumer Protection‖, 8(4) Central India Law Quarterly

377, 381 (1995). 36

, P.S. Rao, ―A Critique on the Prevention of Food adulteration Act, 1954‖, 13

Chartered Secretary 827 (1983). Author is Secretary, Food Specialties Ltd., New

Delhi. 37

Ibid. 38

Ibid. 39

Supra note 34.


172

guarantee. Moreover there are no facilities available to the traders to

test the purity of the articles at the time of purchase.40

III. The Food Safety and Standards Act, 2006

The Food Safety and Standards Act has been enacted to consolidate the

laws related to food. The important thing to note is that it does not deal

with the food adulteration alone. It can be easily inferred from the

broad definition of the term ―unsafe food ―under section 3(zz) along

with many other expressions important for laying down the standards.

Again, the Act gives a vast definition of ―adulterant‖.41

And at the

same time few more definitions give us a broad picture such as

―contaminant‖, ―extraneous matter‖ and ―food additive‖. The short

title also leads us to the same conclusion. The interpretation clause

defines ―food safety‖ as ―assurance that the food is acceptable for

human consumption.‖,42

and ―standard‖ {under section 3(zv)} as ―in

relation to any articles of food means standards notified by the food

authority‖. For removing any doubt the term ―sub-standard‖ is also

defined {under section 3(zx)}.

Historical Backdrop:

The earliest mention of the comprehensive legislation on food with a

Food Regulatory Authority can be traced back to 1998 in the

recommendations of the Subject Group on Food and Agro Industries

appointed by the Prime Minister‘s Council on Trade and Industry.43

In

2002, in the Budget Speech given by the Minister of Finance an

elaborate mention was made.44

Subsequently, a GoM was constituted

40

Emily Andrews, ―Penal Law on Food Adulteration‖, 8 Cochin University Law

Review 337 (1984). 41

According to s. 3(a), ―…any material which is or could be employed for making

the food unsafe or sub-standard or misbranded or containing extraneous matter.‖ 42

S. 3(q). 43

Statement of Object and Reasons, FSSA, 2006. 44

See Government of India, Report on Pesticide Residues 147 (Parliament

Committee on Pesticide Residues , 2004); An extract, ―A Multiplicity of regulations

for food standard under the Prevention of Food Adulteration Act, the food products

Order, the meat Products Order, the Bureau of Indian Standards and MMPO, affect

the food and processing sectors. They need to be modernized and converged. The


173

for the purpose. This law was expected to take into account the

international scenario and modern developments in developed and

developing countries so as to create an enabling environment and

promote self-compliance by the Food Processing Industries. The

Ministry of Food Processing45

was given the responsibility to assist the

GoM.

The first meeting of the GoM was held on Jan. 27, 2003 under the

Chairmanship of the Minister of Law and Justice. On this occasion,

along with the second meeting held on March 18, 2003, there were

deliberations made on how to chalk out a common strategy for

common acceptable draft bill. It was unanimously agreed that study of

international experience can become the building block of the new

legislation and an independent developmental and regulatory authority

be first set up, by bringing the statute, to look into all the aspects of

existing food laws and commend new legislation. It was also decided

that Secretary, Ministry of Food Processing Industries would

coordinate discussion with Secretary, Law Commission. Consequently,

the Member Secretary gave its recommendations.

After all these exercises, the Ministry of Food Processing prepared

the draft Bill that was places in the Lower House on August 25, 2005

by the then Minister of State Mr. Subodh Kant Sahay. The debate was

mainly held on July 26, 2006 in the Lok Sabha and on August 1, 2006

and on August 2, 2006 in Rajya Sabha. The Bill got the President‘s

assent on August 23, 2006 and has come into force in fragments from

time to time.46

The Authority was established on November 18, 2008.

Aim of the Act is to have an integrated and modern law on food

problems and to have a central authority, which can lay down the

science-based standards for scientific development of the food

processing industry.47

prime Minister has decided to set up a Group of Ministers (GoM) to propose

legislative and other changes for preparing a modern integrated food law and related

regulations.‖ 45

The ministry was formed during the primeministership of Mr. Rajiv Gandhi in

Jul. 1988. 46

Ss. 4-10, 87, 88, 91 and 101 came into force on Oct. 15, 2007. Ss. 3 and 30 came

into force on Aug. 25, 2008. S. 90 came into force on Aug. 28, 2008. Ss. 16-18, 81-

86, 92 and 93 came into force on Nov. 18, 2008. 47

According to the Introduction, Statement of Object and Reason, and Preamble of

FSSA, 2006.


174

The main features of the Act are: to establish an integrated line of

control and response, decentralization of licensing, single reference

point, self-compliance, making the business food operators to ensure

the quality at all the stages and graded penalties. The Act claims to be

contemporary, comprehensive, and having standards based on science

and transparency.

As the Act mentions few documents in the statement of Objects

and Reasons, which molded the draft bill, it becomes necessary to see

the Act in their light. They are discussed below.

Standing Committee of Parliament in Agriculture (2004-05)

The Ministry of Food Processing Industry constituted the standing

committee under the chairmanship of Mr. Ram Gopal Yadav. The

report of the standing committee was presented to the House on April

20, 2005. There were Five Schemes suggested.48

One of them was ‗the

Scheme for quality assurance, Codex standards, research and

development‘ which included ‗food safety and quality assurance

mechanism‘.

The committee emphasized on three points related to the FSSA,

2006. Firstly, need of value addition by food processing which is much

required for agricultural development.49

Secondly, need for uniformity

of standards, uniformity of quality, uniformity of regulations and

removal of multiplicity of legislation.50

Thirdly, that the statistics of

laboratory is very grey. According to the report, even the Ministry of

Food Processing did not have its own food-testing infrastructure,

which was being managed by the Ministry of Health. Therefore, it

recommended a strong network of food testing laboratories, at least

one in each State/Region under the direct control of food processing

ministry.51

48

Government of India, Report: Standing Committee on Agriculture 4-5 (2005).

Presented on Apr. 20, 2005. 49

Id. at 1. 50

Id. at 13. 51

Id. at 27 and 43.


175

Joint Committee on Pesticide Residues in and Safety Standards for

Soft Drink, Fruit Juice and Other Beverages:

The report of the Committee was presented on February 4, 2004.52

As

the title suggests, the report is mainly on pesticide residues that were

found in the cola brands and their level was 24 times more than the

permissible international limit. It mentioned the sorry state how PFA is

not having sufficient provision to fight against such unsafe food and

why we are in need of a completely new approach based on

international model. So far as the soft drinks, etc are concerned, the

Ministry of Food Processing Industries is the licensing authority and

Ministry of Health and Family Welfare is the regulatory authority.

Moreover, how the food sector is further divided between nine

ministries can be seen as given below.

Likewise, there is multiplicity of laws, enforcement and standard

setting agencies. For example the laws, other than the PFA, that are

presently in action are:

1. The Fruit Products Order, 1955.

2. The Meat Food Products Order, 1973.

3. The Vegetable Oil Products (Control) Order, 1947, etc.

Management of Food Industry under different Ministries:

MINISTRY OF

HEALTH AND

FAMILY WELFARE

Prevention of Food

Adulteration Act, 1954

PFA Rules, 1955

Health Food

Supplement Bill

MINISTRY OF

AGRICULTURE

Agriculture Produce

Marketing Act

Milk and Milk Product

Order

MINISTRY OF FOOD &

CONSUMER AFFAIRS

Essential Com. Act, 1955

Standards of Weights

&Measures Act,1976

Packaged Commodities

Rule, 1977

Consumer Protection Act,

1986

B.I.S. Act,1986

VOP Control Order, 1947

VOP (Std. of Quality),

1975

SEO control (order), 1967

52

Under the chairmanship of Mr. Sharad Pawar.


176

MINISTRY OF

COMMERCE

Imports & Exports

Regulations

Export Inspection

Agency

Tea Board

Coffee Board

Coffee Act & Rules

MINISTRY OF FOOD

PROCESSING

INDUSTRIES

Fruit Products Order,

1955

MINISTRY OF RURAL

DEVELOPMENT

Agricultural Produce

Grading & Marketing Act,

1937

Meat Food Products Order

MINISTRY OF

FORESTS &

ENVIRONMENT

Trade in Endangered

Species Act

Ecomark

MINISTRY OF

SCIENCE

&TECHNOLOGY

Atomic Energy Act, 1962

Control of Irradiation of

Foods Rules, 1991

G.M. & Organic Foods

MINISTRY OF HRD

(Development of Women

& Child Welfare)

Infant Milk Substitutes,

Feeding Bottles & Infant

Foods (Regulation of

Production, Supply &

Distribution) Act, 1992-

Rules, 1993

SOURCE: ANNEXURE to Joint Parliamentary Report on Pesticide

Residue, 2004.

Apart from this many organizations viz. Bureau of Indian

Standards, Central Committee for Food Standards, Ministry of Rural

development under ‗Agmark‘, Export Import Council under Exim

Policy etc. lay down standards in the food sector. Then there are many

overlapping and contradictory provisions in the above-mentioned

legislations and rules and orders. The report concluded that the system

is over regulated and under administered. Further it laid down the

salient feature for the new modern integrated food law as well as the

duties of the Food Safety and standards Authority.

Recommendations of Member Secretary, Law Commission

After doing an in-depth study in the food laws of the countries53

where

there is a central food authority, secretary came up with many

suggestions. Some of them are:

53

European Union, United Kingdom, Australia, New Zealand, Malaysia, Canada,

Thailand etc.


177

1. There should be civil penalties for contravention of the act

instead of criminal punishments.

2. Criminal sanctions should be restricted to contraventions of

serious nature which must be tried by special courts.54

3. The new act must, apart from establishing a Food Safety and

Standards Authority empower the Central Government to

prescribe standards for food articles.

4. The Central Government and the state government shall have

power to recall any food item posing risk to the health.

5. Contravention of provisions of the Act should be subject to

civil penalty adjudged by adjudicating officers appointed by

the state government.

6. Appeals must lie to one-man tribunals to be established by

these state governments.

7. The comprehensive standard-setting legal instrument must

expressly make it clear that the mandatory provisions will not

apply to primary food producers namely farmers.55

The practices like focus on in-process quality control rather than

product testing, compliance rather than prosecution, compounding of

minor/technical violation, high Power Screening Board to examine

cases before prosecution,56

Periodic quality audits of food factories,57

etc. were also observed by the commission. It is interesting to note

that FSSA, 2006 is mainly based on the recommendations of the

member secretary of the Law Commission.

The Codex Alimentarius

The Codex Alimentarius is a Latin term that means ‗Food Law or

Code‘. It is a collection of international food standards adopted by the

Codex Alimentarius Commission, which is an international body

54

Trial by the Special Court was also suggested by the Ministry of Health in their

Concept Note on amendments to PFA. 55

It is done so that their interests are not adversely affected by the proposed

enactment. However the farmers should be encouraged to voluntary comply with the

set standards. The central government can frame suitable schemes under the Act,

offering incentives to such farmers. 56

The procedure is followed in Thailand 57

The procedure is followed in Turkey.


178

responsible for the execution of the Joint FAO/WHO Food Standards

Programme. FAO and WHO created the Commission in the year 1962.

The programme is aimed at protecting the health of consumers and

facilitating international trade in food.

The standards in the Codex are for all principal foods, whether

processed or semi-processed or raw. A country in any one of the ways

may accept these standards.

The Codex defines certain terms related to the processing of food.

The definitions in FSSA, 2006 are taken from the Codex. For example,

the definition of ‗food‘, ‗food additive‘, ‗contaminant‘, ‗hazard‘,

‗risk‘, ‗risk analysis‘, ‗risk assessment‘, ‗hazard identification‘,

‗hazard characterization‘, ‗claim‘, ‗consumer‘, etc.

In the Preamble to the Code of Ethics for International Trade in

Food,58

the right to standard of living adequate for the health and well

being of the individual and his family is proclaimed in the Universal

Declaration of Human Rights of the United Nations. Therefore, the

major objective of the work of Commission is to protect the health of

consumer and ensure fair practices in the trade in food.

Benefits of FSSA

According to Subodh Kant Sahay, ―the Act is a historic one. It is fully

agriculture oriented and will constitute a regulatory authority that will

govern the standards and quality of food right from national level to

Panchayat level. ..Again, it is a major initiative in abolition of

inspector raj.‖59

The biggest advantage it has is the mandatory

standardization it provides for food. Moreover, the liability of the

person will be civil liability which will be easier to prove. It will be the

special responsibility of the food business operator to ensure that the

articles of food satisfy the requirements of the Act at all stages of

production, etc.60

As the Act has taken inspiration from the Codex, its

standard will match the world level quality. For the first time there is a

provision for compensating the consumer who gets any injury or incur

any health hazard, along with the penalty or punishment given to the

58

1A Codex Alimentarius 17 (1999). 59


The FSSA, s. 26.


179

perpetrator. The Act imposes responsibility on the operator of business

to recall the articles of food, if he finds that they don‘t satisfy the

standards of the Act.61

If the inspector or the food officer is found

misusing his power, there is provision to impose fine on him on the

proof of his being guilty.62

The amount of fine is Rs.10,00,00.63

Now

there will be only one Ministry looking into the whole affair instead of

nine ministries. The graded system of penalties will remove confusion

and inequality that existed before as there was same minimum

punishment for all forms of adulteration.64

In the adjudication system,

there are two types of treatment: the matters that are hazardous to the

health and those that are not. Latter will be referred to the Special

Court and later to the High Court. Farmers and the fisherman are

excluded from the purview of the Act. There is wide network of checks

and balances that have been provided in this Act. Every business

operator is required to have license or registration. Every distributor is

required to be able to identify food articles to the manufacturers and

every seller to the distributor. Standards based on science are required

to be in place that will support the scientific development of the food

processing industry. There is provision for the establishment of the

scientific panel and committees. There is a provision for improvement

notice65

to be given to the one not complying with the standards, after

non compliance of which the food safety officer can take the action.

There are so many checks to make sure that a wrong case is not made

against any manufacturer. Starting from Food Safety Officer, the

Adjudicating Officer, Food Safety Appellate Tribunal, State

Commissioner of Food Safety, Special Courts (in case of

imprisonment), and finally the High Court will provide correction if

required. The Act will include the Food distributed in the Public

Distribution System i.e. it will cover the Food Security Act, 2009.66

This is possible by virtue of section 3(n), which defines ‗food

business‘; it means ―any undertaking, whether for profit or not and

whether public or private, carrying out any of the activities related to

61

Id., s. 28. It provides for the ‗recall procedure‘. 62

Id., s. 39. 63

This amount was nominal in the PFA. 64

The FSSA, ss. 48-67. 65

Id., s. 32. 66

Not brought to force yet.


180

any stage of manufacture, processing, packaging, storage,

transportation, distribution of food, import and includes food services,

catering services, sale of food or food ingredients.‖

IV. Loopholes in FSSA, 2006

Above mentioned benefits give a very bloomy picture but if we look

deeper the legislators seem to be overzealous in incorporating the

international standards. The main focus of the Act is on the processing

industry and the unorganized sector is completely neglected. Almost

every report says for a Central authority but doesn‘t mention how the

establishment of central authority has proved to be effective in other

countries. Some of the drawbacks are given below.

1. As the Act provides for compulsory process of registration, this

may create problem for small businessmen like hawkers and

venders.

2. There is no registration process mentioned; nor is there any

authority specified for the registration.

3. The Food Safety Officer has defined no jurisdiction for the sake of

inspection and seizer of sample.67

4. The provisions that give power to the officers to grant license, or

impose huge penalty give way to possibility of corruption.68

5. As the Act provides for both the criminal as well as civil

procedure, there is possibility of confusion as to what procedure to

be followed.

6. One year limitation period has been provided for the bringing the

case in the notice of an authority under the Act.

7. Except from the packaged drinking water, the potable water used

in the manufacture of most of the articles of food, is excluded from

the purview of the Act.69

8. Finances are lacking for the complete implementation of the Act.

According to the Financial Memorandum of the original Bill.70

The

total sum allocated for the purpose is ten crore rupees. Seven crore

67

The power is given under s. 41(1) of the FSSA. 68

The FSSA, s. 69(1). 69

PFA expressly excludes water. 70

The Food Safety and standards Bill, 2005 along with the Financial Memorandum

was introduced in the Lower House on May 22, 2005.


181

have been spent on the infrastructure of the food authority and

remaining sum is kept for the establishing of laboratories, which is

highly insufficient.

9. There is no final decision as to which Ministry will see the

administration side of the Act. Is it Food Processing Ministry or the

Health Ministry that will see the implementation?

10. There are certain expressions that are not defined and that might

add to the number of litigations due to their ambiguous meaning.

For example, ‗safe and wholesome food for human consumption‘,

‗good manufacturing practices‘, and ‗good hygienic practices‘.

Similarly, it is not clear as to why ‗contaminant‘, unlike any other

term, is not defined as the Codex defines it. It omits the intention

part of the definition.

11. The unorganized sector in India cannot be supposed to adhere to

the norms of the Act as mentioning ingredients and their

specification, etc.

12. There is no estimation of the cost to be borne by the State

Governments, which are the nodal agencies.

13. As food business includes ‗any undertaking whether giving profit

or not‘, this tends to include in itself and even criminalizes services

rendered by the gurudwaras, the zaket at Mosques and dargah,

bhandaras, which feed millions of poor people. To avoid such

undesirable consequences, we need laws to project the diverse food

laws and culture from the disease causing homogeneous centralize

food culture of the West.

14. There is no technical qualification attached to the ranks of the

officers who are assigned the task of issuing of license and fixing

of liability.

V. Suggestions

After thoroughly going through the provisions, I have following

suggestions to submit:

1. As the number of hawkers cannot be denied in India, there should

be representation from their association as well, in the Food

Authority.


182

2. The definition of ‗food‘ expressly excludes the animal feed from

its purview. The fact is that whatever pesticides, insecticide etc.

gets into the animal feed and consumed by the animal (cow, goat,

etc.) becomes a part of food chain. For example, it is present in the

milk. Therefore, this should be made part of the definition.

3. Food chain from farm to the products needs to be traced. But as the

farmers are excluded from the purview of the Act,71

the tracing is

possible to the mandi only.

4. As the there is lack of proper training of procedure, both legal and

scientific or technical, there has usually been problem taking the

sample in the adequate manner and quality required for testing. For

this purpose, the Ministry of HRD can think over role of

universities, which can, after looking at the seriousness of the

affair, provide for the courses on food testing.

5. A separate Ministry must look after the matter of food adulteration

being a serious matter that affects the health of the citizens. In fact

it should continue to run under the Ministry of Health rather than

of the Food Processing, which has to deal with and look into other

relevant affairs.

6. Food adulteration is a very serious offence. Therefore, it should

make the CEOs of the company liable.

7. There should be laboratory in each district.

8. Hawkers should be brought under the ambit of the Act, as they do

the major part of the commerce. The method of testing in their case

should be made simple and non technical (not involving so many

formalities)

9. Food recall should be issued in the media to inform the citizens

and make them aware about the unsafe food.

10. The Act should have a compulsory provision for black-listing of

the companies or even publication when held guilty of the offence.

It should be made part of the punishment. Provisions for

publishing the name of the culprit is there but not in every case.

So, it should be done in every case,

11. The Codex and the Committees have suggested Confidence

Building Measures among the consumers. This can be done by

attaching the logo displaying that products are safe. This logo that 71

See the definition of ‗primary food‘.


183

can be understood by literate or illiterate person should be made

mandatory.72

Relation of Science and Law:

As already mentioned, the main problem with the Act, whether PFA or

FSSA, 2006 is the implementation. The laboratories are important

elements towards implementation. They are the links between the

science and law, not only because they are meant to detect the

adulterant in the food but also because there should be correct

detection of the disease caused by the bad food. The problem is that

the Act does not give provision for such facility in the laboratories i.e.

detection of the disease caused. Actually this should be one of the

factors in deciding the graded punishment.

The preamble of the FSSA, 2006 goes ―An Act to…establish the

Food Safety and standards Authority of India for laying down science-

based standards for articles of food.‖ The question that arises is, such

emphasis on science not being part of the PFA, does the new Act that

provides for the establishment of state-of-art laboratories which are

much more prompt and fast in giving reports? Will the interaction of

law with the science contribute towards the accurate reports?

The fact is that certain fields of science- epidemiology, toxicology,

and clinical medicine, among others- are centrally needed to inform

courts of whether and to what extent exposure to a product might have

contributed to someone‘s injury.73

In order to show that exposure to

toxic substances caused or contributed to the human harm, substantial,

time-consuming, and often long-term scientific studies are needed.

Human epidemiological studies are almost best kinds of evidence of

human harm from toxic exposure.74

It is difficult to identify how much

exposure was received. At the same time the studies are expensive to

conduct. More seriously, judges and larger public may not appreciate

how intensive they can be. Regrettably, too frequently, they are not

able to detect an adverse effect even when it is present.

72


Carl F. Cranor, Toxic Torts, Science, Law and the Possibility of Justice 1

(Cambridge University Press, NY, 2006). 74

Ibid.


184

Carcinogens, reproductive toxicants and neuro-toxicants are

invisible, undetectable intruders that can have long latency period and

they rarely leave signature disease, often operates by means of

unknown complex, subtle molecular mechanisms and when they

materialize into harm, injure humans in ways that researcher might

not discover for years.75

Understanding the property of such

substances and assessing any risk that they pose, requires even more

subtle scientific expertise and studies than for other areas of inquiry.

Are the laboratories in India ready for such challenges?

We don‘t have such facilities and that is a fact. Even during the

parliamentary debates,76

Shri Ram Kripal Yadav of Patna said, ―The

fact is that in many States, there are no laboratories. What to talk of

districts when there is no laboratory in the State capital. There is no

proper staff who can guide…There is a laboratory in Patna. I myself

have seen this laboratory which is in very poor condition.‖

Number of laboratories for testing food: Most of the laboratories in

India have instruments that are old and are not functioning properly.

Demand for state-of-art instrument was made in the Parliament during

the debate. It was said77

that there is need to establish a large set up of

down to line infrastructure and quality labs, which are essential for the

implementation of the law. Shri Adhir Choudhary, an MP from West

Bengal said:78

Due to lack of laboratory instrumentation, due to lack of proper

training to testing personnel, due to lack of observation of rules, this

sector has suffered a lot. It is suffering because the instruments are

relatively expensive… [I]nstruments are to be imported from the

foreign countries. We have resource constraint. Here scientific

research is sporadic. Training facilities are poor and less rigorous.

The honorable member also brought to the notice of the House the

role of universities which are reluctant to offer course in food testing.

Shri Avinash Rai Khanna,79

an MP from Hoshiarpur, tried to draw

attention towards the financial aspects. The structure of authority

75



Id. at 377. See speech of Shri Subodh Kant Sahay. 78

Id. at 385. 79

Id. at 381.


185

framed involves the expenditure of Rs. 10 crores.80

As much as Rs. 7

crore will be spent on the infrastructure. It is only Rs. 3 crore that will

be left out to provide for the laboratories.

This shows how infeasible is the implementation of the Act. At

present there are 72 laboratories in India at district, regional or State

level in addition to the four Central Food Laboratories set up by the

Central Government.81

Every State has one or more laboratory

depending on the need. About 12 of the laboratories are under the

control of the local bodies, whereas remaining ones are under the

administrative control of the State Government.

This shows that the number is much below the required one.

Therefore, along with increasing the number of the laboratories,

the Parliamentary Committee on Pesticide Residue in its report gave

following suggestions to the Government with regard to the labs:82

1. To constitute the Task Force of experts to assess the situation

and ensure the appropriate recognition and accreditation (from

NABL)of the laboratories. Two of the labs should have international

recognition.

2. The Indian testing methodologies should not be inferior in any

sense to that of CODEX, WHO, ISO.

3. Testing manuals should be developed for all the parameters and

the products that are covered under the Indian food laws.

4. The labs should be well equipped with the qualified personnel in

all States/UTs.

Tussle between the Ministries: The PFA and other Orders and

legislations and food laws were under the regulation of various

ministries. But it was mainly looked upon by the Ministry of Health

and Family Welfare. One of the objectives of the Act was to converge

such regulation. The question that arises is that under which Ministry it

should now be placed?

After the deliberations it was the Ministry of Food Processing that

was assigned the job of framing the legislation though it was not clear

which ministry would deal with its implementation. Finally, the

80

See financial memorandum, The Food Safety and Standards Bill, 2005. 81

They are Pune, Kolkota, Gaziabad and Mysore. Source: www.fssai.gov.in (as

visited on Sep. 6, 2009). 82

See supra note 44 at 155.


186

decision seems to be in favour of the latter but with no good reasons as

the food adulteration is the part of health. It is not very convincing to

assign the task to a ministry which has many jobs already in hand.

Actually the matter is serious enough to create an entirely new

ministry of food adulteration for the implementation.

VI. Conclusion

The adage goes that it is easy to find fault than to appreciate the thing.

I don‘t completely disagree with it, especially in case of the particular

Act, which has yet to come into force. The Act is answer to many

problems that previously existed but the implementation part raises

many speculations.

Among the prominent features is the sanction part which provides

for fine as well as imprisonment. First of all, the evil of food

adulteration being a socio-economic crime generates a lot of wealth

and therefore the perpetrator would easily be able to pay the fine for

which he becomes liable, be it 10 lakh rupees which is the highest.

Secondly, the distribution of the punishments also seems odd. The

manufacturing, storing, selling, distribution or importing of unsafe

food carries the maximum punishment of life imprisonment and 10

lakh rupees if the activities result in death while the maximum penalty

for the death of the consumer is 5 lakh rupees. Thirdly, as the socio-

economic crimes on one hand are considered to be harming the public

to maximum extent and on the other hand they hardly carry the social

stigma that is usually a feature in other forms of offence. The penalties

will hardly solve the purpose. Therefore, along with this there should

be provision for publication of the conviction so that people come to

know about the perpetrator and at the same time they are also excluded

from the syndicate that was working together with him. The extreme

step could be blacklisting the manufacturer or seller, so that he cannot

carry the business anymore.

Power given to the consumer to take the sample is not a new

feature. There are already a set of problems that he faces and that is the

reason why we hardly find such steps being taken. The bigger problem

is to detect or find the difference between a pure and adulterated food.

General public finds it difficult to distinguish between the two.


187

Therefore, this provision had been of rather no use in the past and

there was no point in its retention. Instead, there should be special

branch of police and inspectorate with wide power of search and

seizure, which should be at strict vigil all the time.

Again there is an appreciable feature of setting the tribunal at

appellate level. Such tribunals are much required for the expeditious

remedy. It would have been better if the same procedure was given for

the court of first instance. There is also need to reconsider the number

of times the person is given the chance of appeal. There is also

provision for the special courts, where the burden of proof should be

shifted from the prosecution. There should be a good coordination

between the investigation team and prosecution because most of the

escapes in past were because of the poor link between the two.

Likewise, there are speculations regarding other features too, such

as the number of inspectors or their qualification and training, etc. The

biggest doubt that arises is the adaptability of the Act that has been

framed by taking features from other countries and especially the

Codex. Are the provisions suited for the Indian conditions especially

with regard to the unorganized sector? For example, section 3(s) says

about ‗Food Safety Management System‘ which means ―adoption of

Good Manufacturing Practices, Good Hygienic Practices, Hazard

Analysis and Critical Control Point‖ for the food business. These terms

are not explained in the definition clause though they are extensively

dealt with in the Codex Alimentarius on Food hygiene Basic Text.

There are high standards laid in the Text while defining the terms as

―food hygiene‖, ―Hazard analysis and critical control point‖.83

The

Codex says about the ‗environmental hygiene‘ where the food

production should not be carried in areas where there is presence of

potentially harmful substances. The equipments used should be

disinfected; there should not be contamination from the soil and air;

the persons working in the establishment should not be infected with

any disease, personal hygiene, air ventilation, lighting, temperature

control etc. With this background we can find very few establishments

that fulfill the requirements if we don‘t consider the multinational set

ups. These guidelines work in the western countries because they have

83

A system that identifies evaluates and controls hazards that are significant for food

safety.


188

a strong enforcement mechanism. There the businessmen have the

means to maintain such guidelines as they are rich. In India the

position of traders is not so good. Moreover they don‘t have the sense

of hygiene.

Therefore, in spite of the best of the legislation, the result seems to

be with no big change in the practice. It is because one cannot change

the mind setup of the people who are illiterate and have little to think

of others. This cannot be done all of a sudden but strict enforcement

machinery is feasible. The need is not of a new legislation but to see

whatever the provisions are, they should be strictly adhered to. At the

same time the need of the hour is not an integrated law (that the Act

actually is) but the integrated approach that includes the contribution

from the public and NGOs84

as well. At the same time taking note of

the spate of the crime, a separate Ministry should be assigned the

enforcement and control.

True that the utopia of a society totally free from socio-economic

crime as food adulteration is mere wishful thinking and impossible to

achieve, but every step forward can be made by multiplying the efforts

both in the legal, extra-legal planes and at the governmental level.

‗Honest Implementation‘ is the key word.

Anubha Dhulia

84

Bejon Mishra, CEO of an NGO named ‗Consumer Voice‘ is doing a commendable

work in the concerned area. LL.M. II Semester (Two-Year Course), Indian Law Institute, New Delhi.


189

COMMENTS

ACKNOWLEDGING ACCOUNTABILITY?

A Comment on Secretary General, Supreme Court of India v.

Subhash C. Agarwal

HIGHER JUDICIARY1 in India has recently received a lot of

condemnation when Supreme Court of India preferred to appeal

against the judgment of Single Judge of High Court of Delhi2 in

Secretary General, Supreme Court of India v. Subhash C. Agarwal.3

The impugned judgment upheld an earlier order of Chief Information

Commissioner (CIC),4 whereby CIC directed Central Public

Information Officer (CPIO) of the Supreme Court to furnish

information sought by the respondent in the present case, under the

‗Right to Information Act, 2005‘.5 The information sought was related

to disclosure of assets of judges of the Supreme Court and the high

courts submitted to the Chief Justice of India (CJI) pursuant to the

resolution passed by the full court of the Supreme Court on May 7,

1997.6 Amidst severe criticism by media and public at large, judges of

the Supreme Court of India and of several high courts ‗voluntarily‘

declared their assets to save their honour and dignity and the faith that

the general public repose in them.

This judgment could have been a landmark- making a porthole in

the concrete wall created by the Indian judiciary around itself, but it

stopped just short of breaking the last brick. After giving sermons on

the significance of such a declaration to ensure ‗accountability‘ which

1 Honourable judges of Supreme Court of India and judges of the high courts in

India. 2 The Central Public Information Officer, Supreme Court of India v. Subhash

Chandra Agarwal, W.P. (C) no. 288/2009; judgment pronounced on Sep. 02, 2009.

Hereinafter ‗impugned judgment‘. 3 MANU/DE/0013/2010; LPA no. 501/2009 in the High Court of Delhi. Judgment

pronounced on Jan. 12, 2010. 4 Dated Jan. 6, 2009. See supra note 3 para 5 for important excerpts of the CIC order.

5 See s. 8(1)(j) of Right to Information Act, 2005 (hereinafter the Act).

6 Supra note 3 at para 63. Hereinafter ‗the 1997 resolution‘.

Acknowledging Accountability? [Vol. 1 : 1

190

is directly proportional to ‗independence‘ of the judiciary,7 they have

granted exemption from disclosure to the contents of such declaration

classifying it as ‗personal information‘8 under the Act, and further

making such disclosure purely an act of volition of the individual

judge.9

But the Apex Court seems to be sceptical about the after-effects of

such disclosure. Apart from the issue of judicial accountability the

decision also re-surfaced the debate of judicial hierarchy. However, the

judgment can also be seen as a ray of light in darkness because

judiciary, for the first time, has acknowledged its accountability

towards the ‗people‘ of the country.

I. Background

The Applicant‘s request (made on November 11, 2007) under the Act

had basically two parts; first, to furnish a copy of the 1997 resolution

which requires every judge of the Supreme Court and the high courts

to make a declaration of his/her assets; and second, the information

regarding compliance of the above resolution. CPIO, in response of the

application informed the applicant that a copy of the resolution would

be furnished on remitting the requisite charges, and added that

information related to declaration of assets was not held by or under

control of the registrar of the Supreme Court, and therefore it could not

be furnished. On appeal by the applicant, the appellate authority

remanded the matter back to the CPIO observing that he should have

disclosed the name of the authority holding the requisite information

and should have referred the application to the latter authority in light

of section 6(3)10

of the Act. After remission CPIO rejected the

application presented afresh holding that the applicant should file

7 See generally, Zemans, Dr. Frances Kahn, ―The Accountable Judge: Guardian of

Judicial Independence‖, 72 S Cal L Rev 625 (1999). See also para 65-84 for detailed

discussion on relation between ‗independence of judiciary‘ and ‗accountability‘. 8 Exempted from disclosure under s. 8(1)(j) of the Act. See infra note 15.

9 Supra note 3 at para 116.

10 S. 6(3) - Where an application is made to a public authority requesting for an

information (i) which is held by another public authority; or (ii) the subject matter of

which is more closely connected with the functions of another public authority; the

public authority, to which such application is made, shall transfer the application…to

that other public authority…


191

applications to the designated authorities of respective high courts to

get information related to asset declaration by their judges. The

applicant then approached the Chief Information Commissioner (CIC)

in an appeal.

The CIC order rejected the contentions of CPIO, Supreme Court11

and reasoned that since the Supreme Court was established by the

Constitution of India, it is a public authority within the meaning of

section 2(h) of the Act. Section 2(e)(i) was referred by CIC to hold that

the CJI is a competent authority, under the Act, empowered to frame

rules under section 28 of the Act to carry out provisions of the Act.

Rule making power under the Act is conferred upon the CJI and the

Supreme Court who cannot disclaim being public authorities.

The impugned judgment upheld the above mentioned order of

CIC. The learned single judge of Delhi High Court framed six points

to decide upon the questions involved in the appeal, viz. (i) Whether

the CJI is a public authority; (ii) Whether the office of the CPIO is

different from that of the CJI, and if yes whether the Act covers the

office of the CJI; (iii) Whether declaration of assets by judges is

‗information‘ under the Act; (iv) Whether the CJI hold them in

‗fiduciary‘ capacity, and therefore they are exempt from disclosure

under section 8(1)(e)12

of the Act; (v) Whether such ‗information‘ is

exempt under section 8(1)(j)13

of the Act; and (vi) Whether the lack of

clarity about details of asset declaration, as well as lack of security

renders asset declaration and its disclosure, unworkable.

He decided positively on the first point and held that office of CJI

is not a distinct ‗public office‘ from the Supreme Court and as ‗CJI‘

his office is covered under the provisions of the Act. Further, he

decided positively on the third point and held that information sought

11

For details see supra note 3 at para 9-10. 12

S. 8(1) - Notwithstanding anything contained in this Act, there shall be no

obligation to give any citizen… (e) information available to a person in his fiduciary

relationship, unless the competent authority is satisfied that the larger public interest

warrants the disclosure of such information. 13

S. 8(1) - Notwithstanding anything contained in this Act, there shall be no

obligation to give any citizen… (j) information which relates to personal

information the disclosure of which has no relationship to any public activity or

interest, or which would cause unwarranted invasion of the privacy of the individual

unless the Central Public Information Officer or the State Public Information Officer

or the appellate authority, as the case may be, is satisfied that the larger public

interest justifies the disclosure of such information…


192

by the applicant cannot be exempted under sections 8(1)(e) or (j) of the

Act. He directed for devising a proper mechanism to tackle with the

problems related to the sixth point. However, while deciding on the

fifth point he added that the contents of any such declaration is liable

to be exempted from disclosure as ‗personal information‘ under

section 8(1)(j) of the Act.

In the present case, points i, ii and vi of the impugned judgment

were not in question and accordingly the division bench of the Delhi

High Court framed three issues for their consideration, which are as

follows-

1. Whether the respondent had any ‗right to information‘ under

section 2 (j) of the Act in respect of the information regarding

making of declarations by judges of the Supreme Court pursuant to

the 1997 resolution?

2. If yes, whether CJI held the ‗information in his ‗fiduciary‘

capacity within the meaning of the expression used in section

8(1)(e) of the Act?

3. Whether the ‗information‘ about the declaration of assets by

the judges of the Supreme Court is exempt from disclosure under

the provision of section 8(1)(j) of the Act?

[

II. The Judgment and its Repercussions

Deciding the first issue, court dealt with two aspects; first, establishing

what is ‗information held by a public authority‘, and second,

establishing that the nature of resolutions passed in 1997 and 199914

are binding on the members of higher judiciary.

Court emphasized the importance of ‗information‘ and

‗knowledge‘, and to establish that ‗Right to Information‘ is a

universally established principle cited relevant provisions of several

international agreements.15

Further, the court reiterated that ‗Right to

Know‘ is a necessary concomitant of the fundamental freedom of

‗Speech and Expression‘ enshrined in article 19(1)(a) of the

14

Resolution adopted in the Chief Justices conference on ‗Restatement of Values of

Judicial Life (Code of Conduct)‘, held in the Supreme Court premises in Dec. 1999. 15

See supra note 3 at para 31-33.


193

Constitution of India,16

and cited in support several cases like Benett

Coleman v. Union of India,17

State of UP v. Raj Narain,18

Association

of Democratic Reforms v. Union of India,19

and PUCL v. Union of

India,20

and held that ―responsibility of officials to explain and to

justify their acts is the chief safeguard against oppression and

corruption‖.21

While deciding on the nature of the said resolutions, court found

that the decision involved, to a great extent, the examination of role of

judiciary in a democracy. The court cited, Justice Michael Kirby

(former judge, Australian High Court) who said, ―[A] judge without

independence is a charade wrapped in a farce inside oppression‖.22

Court further established the point by referring to the Apex Court

decision in SC AOR Association v. Union of India.23

Further the court

tried to establish that greatest strength of judiciary is the faith people

repose in it and cited K.Veeraswamy v. Union of India,24

S.P. Gupta v.

Union of India25

and C. Ravichandran Iyer v. Justice A.M.

Bhattachrjee26

to support the argument. Finally it was held that the

1997 and the 1999 resolutions are meant to be adhered by; therefore

they have a binding effect. Therefore the petitioner has the ‗Right to

Information‘ in respect of information regarding making of

declarations by the judges of the Supreme Court.

Bhagwati J. once said, ―[C]oncept of independence of judiciary is

not limited to independence from executive pressure, it is a much

wider concept… It has many dimensions, namely, fearlessness from

other power centres, economic or political, and freedom from

prejudices acquired and nourished by the class to which the judges

belong‖.27

Further, the Supreme Court itself had emphasized on one

16

For detailed discussion see supra note 4 at para 36-42. 17

AIR 1973 SC 106. 18

AIR 1975 SC 515. 19

AIR 2001 Del. 126. 20

(2002) 5 SCC 294. 21

Supra note 3 at para 38. 22

Id. at para 67; for details see

http://www/hcourt.gov.au/speeches/kirbyj/kirbyj_abahk.htm. 23

(1993) 4 SCC 441. 24

(1991) 3 SCC 655. 25

(1981) Supp. SCC 1987. 26

(1995) 5 SCC 457. 27

Supra note 25 at para 27.


194

occasion that it is an inalienable duty of judges to maintain highest

possible standards of conduct, both on and off their official duty.28

This proposition was reiterated in Justice Bhattcharjee case.29

The court rightly pointed that if the judiciary fails to assume

responsibility for ensuring high standards of ethical conduct expected

by its members, public opinion and political expediency may lead the

other two branches of government to intervene. The inevitable

consequence of such an action will be a compromise on the principle

of ‗independence of judiciary‘ itself.30

Therefore, judiciary as an

institution has to regulate its conduct and ethical standards by such in-

house mechanisms to ensure their independence.

Further more, the double standards laid down in respect of

accountability of separate classes of judiciary, namely, lower judiciary

and the higher judiciary are not justifiable. For example, service rules

for the lower judiciary mandates disclosure of assets to ensure

accountability, but there is no such compulsion for the judges sitting

on higher pedestal, where there should have been stricter

accountability requirements.

Deciding on the second issue, court rejected the contention of the

appellant alleging that since the resolution itself provides for

‗confidentiality‘ as a condition to any such declaration, therefore the

CJI holds such information under a ‗fiduciary‘ capacity, which

exempts it from disclosure under section 8(1)(e) of the Act.

A reference made to section 22 of the Act was enough to reject any

such contention. The section provides that this Act has an overriding

effect on all other legislations (including the Official Secrets Act);

therefore merely because a document contains a condition of

confidentiality, it cannot be exempted from disclosure under section

8(1)(e) of the Act.31

Further more it is very well argued that CJI cannot

be fiduciary vis-à-vis judges of the Supreme Court as judges of the

28


Supra note 26. In para 23 of this case it is submitted that, ―[J]udges of higher

echelons, should not be mere men of clay with all the frailties and foibles, human

feelings and weak character which may be found in other walks of life. They should

be men of fighting faith with tough fibre not susceptible to any pressure, economic,

political or any sort‖. 30

See supra note 3 at para 87. 31

See supra note 3 at para 107.


195

Supreme Court hold independent office, and there is no hierarchy. The

document is open for observation of successive CJIs and hence cannot

be exempted from disclosure under section 8(1)(e) of the Act.

While deciding on the third issue the court dealt with the inherent

confrontation between two of the fundamental rights enshrined in the

constitution of India. The ‗Right to Information‘ is derived from the

freedom of speech and expression under article 19(1)(a) and the ‗Right

to Privacy‘ derives its authority from article 21, i.e. right to life and

liberty.32

It was rightly held by the court that considering this very

hitch, legislature enacted section 8(1)(j) of the Act which exempts

‗personal information‘ from disclosure under the Act respecting the

‗Right to Privacy‘ of public officials. The court finally decided that the

information sought by the applicant does not justify or warrant

protection under section 8(1)(j) of the Act, inasmuch it required the

furnishing of the information related to compliance of 1997 resolution,

but the details of any such declaration will be protected under section

8(1)(j) of the Act as ‗personal information‘.

This decision showed that higher judiciary could only preach

accountability to other organs of state, viz. legislature and executive

(sometimes it includes lower judiciary also), but when it comes to

following their own preaching they are fearful. They always comment

on the rampant corruption in other walks of life, but when someone

points a finger towards them they become irate. The Apex Court has

itself mentioned in several cases that society‘s demand for honesty of a

judge is exacting and absolute and the standards of judicial behaviour,

both on and off the bench, are normally extremely high, therefore a

judge must keep himself absolutely above suspicion.33

But when the

time came to follow in practice these theoretical ethical standards, they

withdrew from their ‗on paper‘ commitment of accountability.

Further more an important point not elaborated much in the

decision is that the exemptions under sub-sections (e) and (j) of section

8 of the Act are not absolute, and if the ‗authority‘ is satisfied that

disclosure is in sufficient public interest, the bar can be lifted after

duly notifying and hearing the person to which the information is

32


See supra note 24 at para 79.


196

related.34

While discussing this point the court ignored its earlier

deliberations on requirement of enhanced standard of accountability

and responsibility for judges and narrowly interpreted ‗public interest‘

to declare that details contained in any disclosure of asset is protected

as personal information under the Act.

The apprehension and panic shown by the judges, when they were

asked to disclose their assets, shattered the confidence of a common

man reposed in the impartiality and honesty of the judiciary. Instead of

keeping themselves absolutely above suspicion, the act of opposing

disclosure of assets brought them into the centre of suspicion. Actual

public interest lies in restoring faith of general public in the judiciary

and this interest is important and sufficient enough to disclose

information which is otherwise protected under section 8(1)(j) of the

Act.

Justice J.B. Thomas says, ―[C]itizens cannot be sure that they or

their fortunes will not some day depend upon our judgment. They will

not wish such power to be reposed in anyone whose honesty, ability,

or personal standards are questionable‖.35

The necessary consequence

of opposition to openness, which is a necessary concomitant of

democracy, will seriously undermine the faith reposed by general

public in the honesty, impartiality and integrity of the judicial system

of the country. The ‗common man‘ usually does not trust the

legislature and remain suspicious of the acts of the executive, but it

always trusts the judiciary. The sole reason of this blind faith is the

self-regulation and abstinence from extraneous influences exercised by

the judiciary, and that image is slowly but surely dampening.

If the judiciary is to save its honour and independence it needs to

act on its own without waiting for the legislature to intervene to enact

a law for disclosure of assets by the judges. The legislature is all set to

bring an enactment on disclosure of assets by judges, which is already

in pipeline.36

Though the newly introduced Bill was taken back for

34

See supra note 3 at para 114. 35

Thomas, J.B., Judicial Ethics in Australia 8 (LBC Information Services, Sydney,

2nd

edn., 1988). 36

The Judges (Declaration of Assets and Liabilities) Bill, 2009 is presented before

the Rajya-Sabha on Jul. 29, 2009, available at:

http://www.judicialreforms.org/files/Judges%20(Declaration%20of%20Assets%20an

d%20 Liabilities)%20Bill%202009.pdf.


197

reconsideration, the reasons for doing so were not in favour of the

principle of ‗independence of judiciary.37

It is the right time for the

judiciary to introspect and save its independence, which it itself has

established as part of the basic structure of the Constitution of India.

Avijit Mani Tripathi*

37

On Aug. 3, 2009, several members of the upper house, cutting across party

affiliations, joined hands to force the government to defer the introduction of the Bill

on the ground that the provisions are too lenient as the Bill exempted judges from

making public their assets and provided immunity against an inquiry. For details see

http://timesofindia.indiatimes.com/india/Govt-puts-off-judges-assets-

bill/articleshow/4854197\cms.

* LL.M. IV Semester (Two-Year Course), Indian Law Institute, New Delhi.

Comment: Shakson Belthissor v. State of Kerala [Vol. 1 : 1

198

A Comment on Shakson Belthissor v. State of Kerala and

Another1

THERE ARE times where the honourable Supreme Court remained

complacent of the errors committed by them because of the

hierarchical nature of the Indian judicial administration. As there is no

one above the diktats of honourable Supreme Court the incalculable

harm done by the Apex Court lingers in the heart of the common man

haunting like witches‘ prophecies. It is the doctrine of responsibility

which braves the scholars to draw the attention of the honourable

Supreme Court to rectify the errors committed. Lord Denning opines

that certain lawyers think that the doctrine of Stare Decisis means:

―Stand by your decisions and the decisions of your predecessors,

however wrong they are and whatever injustice they inflict‖.2 The

same analogy applies to the higher courts too. Unmindful of their

follies the Supreme Court have been rigidly sticking on to the

precedent pattern of application. He further states that if the law is to

develop and not to stagnate; it is necessity to create new precedents so

as to meet new situations. Finally, he concludes his lecture by stating

that the fundamental principle of the law is to govern people; and,

whilst adhering firmly to those principles, it should overrule particular

precedents that it finds to be at variance therewith.3

The facts of the case are that the appellant, who was working in

Gulf, got married to the complainant in 1997. After the marriage he

stayed in the house of the complainant and after his leave got over the

appellant returned to the Gulf. Thereafter, for 2-3 months, the

appellant sent money for the expenses in the house, talked to her over

phone, sent letters from Saudi Arabia and also behaved very

affectionately with her.

Subsequently, the appellant stopped sending money from Saudi

Arabia for her expenses and also stopped sending letters to her, as his

family allegedly started spreading wrong information regarding the

1 2009 INDLAW SC 851.

2 Lord Denning, ―From Precedent To Precedent‖, The Romanes Lecture 1, available

at: http://www.lawharva

rd.edu/programs/ames_foundation/BLHC07/swain%20BLHC20071FINAL.pdf. 3 Id. at 34.


199

conduct of the respondent No. 2 (the complainant). A First Information

Report (FIR) was registered and on completion of the investigation by

the police, a charge sheet was submitted by the police alleging, inter

alia, that in the investigation it is established that it is only the

appellant, who has committed the offence. It was also stated in the said

charge sheet that investigation as per Section 498-A of the Indian

Penal Code, 1860 (in short "the IPC") is being continued after

dropping the provision of Section 34 IPC. The appellant went before

the High Court of Kerala praying for quashing of both the FIR as also

the charge sheet on the ground that no case for prosecution under

S.498-A IPC is made out against him. The high court, however,

without issuing any notice on the said petition rejected the petition

holding that by no stretch of imagination it can be said that the FIR

and the charge sheet do not disclose the commission of the offence

alleged against the appellant. Interestingly, in appeal the Supreme

Court took a ‗U-turn‘; allowing the appeal they quashed the

proceedings initiated against the appellant under S. 498-A of the IPC.

This judgment has inherent fallacies. At the outset, the

interpretation of s. 498-A by the Supreme Court is too narrow and fails

in the objective it sought to achieve. Second fallacy is bypassing the

trial stage process; taking lightly, the role of the trial court.

Let us first of all examine the provision in detail:

S. 498-A of the IPC- Husband or relative of husband of a

woman subjecting her to cruelty- Whoever, being the husband or the

relative of the husband of woman, subjects such woman to cruelty

shall be punished with imprisonment for a term which may extend to

three years and shall also be liable to fine.

Explanation - For the purpose of this section, "cruelty" means –

(a) Any willful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury or

danger to life, limb or health (whether mental or physical) of the

woman; or

(b) Harassment of the woman where such harassment is with a

view to coercing her or any person related to her to meet any

unlawful demand for any property or valuable security or is on

account of failure by her or any person related to her to meet such

demand.


200

As we are concerned with (a) it would be wise on our part to confine

ourselves with that part only.

The following are the essential ingredients of Section 498- A IPC:

(i) That there was a married woman;

(ii) That such woman was subjected to cruelty;

(iii) That such cruelty consisted of any willful conduct of such

nature as was likely to drive such woman - to commit suicide, or to

cause grave injury or danger to her life, limb or health, whether

mental or physical; harassment of such woman where such

harassment was - with a view to coercing such woman or any

person related to her to meet any unlawful demand for any

property or valuable security, or on account of failure by such

woman, or any person related to her to meet the unlawful demand

in able and the woman was subjected to such cruelty by - the

husband of that woman; or any relative of the husband of that

woman.

Three specific instances have been enumerated to attract the

application of explanation (a) which involves three specific situations

viz., (i) to drive the woman to commit suicide or (ii) to cause grave

injury or (iii) danger to life, limb or health, both mental and physical,

and thus involving a physical torture or atrocity.

In effect causa causans to attract s. 498-A of IPC is that there

needs to be substantial apprehension to life, limb or health, both

mental and physical and thus involving a physical torture or atrocity.

At the outset the factual score of the present case may appear that there

is no such immediate danger but if the Supreme Court would have

scanned the case with a little introspection of mind, they would have

reached to the conclusion that it involves danger to life by mentally

pressurizing the victim. First of all, the husband stopped sending

money for running the household without any reason, secondly, she

was denied entry to the house that was bought from the dower given at

the time of marriage, and thirdly, there were allegations as to her

character. In a nutshell, there was clear-cut case depriving her from

fundamental right of a dignified life. To comprehend the niceties of

cruelty jurisprudence it would be prudent on our part to look into

explanation provided by the honourable Supreme Court in Samar


201

Ghosh v. Jaya Ghosh4 in para 55 referred to Shobha Rani's case

5

observed as under:

"Each case may be different. We deal with the conduct of

human beings who are no generally similar. Among the human

beings there is no limit to the kind of conduct, which may

constitute cruelty. New type of cruelty may crop up in any case

depending upon the human behavior, capacity or incapability to

tolerate the conduct complained of. Such is the wonderful (sic)

realm of cruelty."

'Cruelty' is an offence basically falling under the conduct crimes.

Unlike section 304-B of the IPC where death of the bride within seven

years of the marriage would be presumed as 'dowry death', there is no

such period provided in the statute during which an act mentioned in

the section is assumed as ‗cruelty‘ under section 498-A IPC. The

husband or his relative would be liable for subjecting the woman to

'cruelty' any time after the marriage. The statute itself delineates that

cruelty would constitute not only physical acts but also includes

mental cruelty in its purview. The mental aspect is Janus faced

structure which needs cautious appreciation of Indian realities. Several

acts considered separately in isolation may be trivial and not

pernicious but when considered cumulatively they might well come

within the description of cruelty.

Nevertheless, the honourable Supreme Court deliberately or

unmindfully failed to follow the best practice of procedure. To call a

trial as ‗fair trial‘ the codified procedure has to be operated in tandem

of substantive and adjective law. If the trial is bypassed the

repercussions of the same would defeat the very process of criminal

judicial administration and in fact could be called as injudicious

administration. Trial stage is the best stage to cull out the relevant and

irrelevant evidence. The trial judge who is trained to segregate the

relevant and irrelevant evidence would become functus officio if the

higher courts quash the FIR without providing the opportunity of the

witnesses especially the victim who has undergone an ordeal of pain

would not be given the fair trial. Trial stage is a unique stage in

criminal judicial administration. It is in this stage that the trial court

4 (2007) 4 SCC 511.

5 AIR 1988 SC 121.


202

would test the veracity of the allegations made, test the credibility of

the investigating apparatus, similar to the common man‘s parlance,

segregation of milk into milk and water into water. Such is the

importance of the trial stage; the final product of this stage is

elicitation of truth from the facts.

It is only after the trial stage the veracity of the facts would be

shoe-horned, without undergoing the trial it would not be wise on the

part of higher courts to discard the trial court‘s version. As a student of

law, we are taught that the Supreme Court and High Courts would not

meddle with the trial stage process. The reason for non-interference

has been evolved out of the wisdom of long practice. The criminal

judicial administration we have today has undergone rough deal of

continuous change for centuries of practice that has provided with the

best practice tested by time, such a practice should not likely be

disturbed. The honourable Supreme Court in Shakson Belthissor case6

at para 9 states: The said power is exercised by the court to prevent

abuse of the process of law and court but such a power could be

exercised only when the complaint filed by the complainant or the

charge sheet filed by the police did not disclose any offence or when

the said complaint is found to be frivolous, vexatious or oppressive.

The honourable Supreme Court itself is aware such power to

bypass the trial stage process is to be exercised cautiously and in

situation warrants interference in emergency to meet the ends of

justice. The facts of the case don‘t warrant such emergent

circumstance, however the honourable Supreme Court meddled with

the trial stage the reasons of interference were not recorded in the

given judgment. By applying my common sense I tried to trace the

elements of reasoning in the judgment but to my inability, failed

desperately.

The honourable Supreme Court in the present case exhibits

unprecedented ambivalent attitude. On the one hand it admits in para

15 referring to Pepsi Foods Limited and Another v. Special Judicial

Magistrate and Others:7

“The magistrate has to carefully scrutinize the evidence bought on

record and may even himself put questions to the complainant and his

6 Supra note 1.

7 AIR 1998 SC 128.


203

witnesses to elicit answers to find out the truthfulness of the allegation

or otherwise and then examine if any offence is prima facie committed

by all or any of the accused.”

The ambivalence of the court is self-evident from the above

description; it acknowledges the trial court, which is distinct from

Apex and High courts, the methodology of reaching the truth is more

foolproof than the higher ones. The trial courts are not mere lower

courts simpliciter, in fact they are the basements of Judicial

Administration, and without the basement higher courts cannot

function suo motu. To put it starkly, the trial courts are the real courts

for common man, when majority of the population cannot afford to

reach the higher courts due to economic constraints; it is totally callous

disregard of the higher courts to conspicuously refuse to fore think the

Indian reality. The act of the honourable Supreme Court would indeed

deny fair trial and would appreciate the litigants to flock to the Apex

Court to bypass the trial procedure. This case in my eyes has set a

wrong precedent to future cases; it has not only defeated the very

justice delivery system but has directly caused a casualty to the rule of

law.

The then honourable justice P.B. Mukherji (Calcutta High Court)

opined8 in his lecture:

“The rule of law in order to be truly effective must therefore be

operated not only in the fields of substance but also in the fields

of procedure.”

Further, the honourable justice P.B. Mukherjee refers that ‗justice

according to law‘ is sometimes used as a doctrine to justify application

of unrestricted powers outside the pale of the rule of law, the ordinary

courts and the process of law.9 That is what exactly happened in this

case.

Roscoe Pound in his Green Foundation Lectures states that:

“The real foe of absolutism is law. It presupposes a life,

measured by reason, a legal order measured by reason, and a

Judicial Process carried on by applying a reasoned technique

8 P.B. Mukherjee, The Critical Problems of the Indian Constitution, Chimanlal

Setalvad Lectures 185 (University of Bombay, Bombay, 1967). 9 Ibid.


204

to experience developed by reason and reason tested by

experience.”10

In a nutshell, the case have not acquired attention of the

lawyers/scholars/academician due to complacency in seeing the

judgment from the point of view of the accused while the victims stand

is nowhere in the eyes of the honourable Supreme Court. The object of

inserting S.498-A is to bring about deterrence in the minds of male-

chauvinistic society; the very object gets watered down due to the

narrow stand taken by the honourable Supreme Court. It is at this

juncture apposite to quotes Hobbes‘s famous dictum:

“An unjust law may be administered justly, and a just law

unjustly”

The above undoubtedly portrays that it is in the hands of

administrators who can bring forth justice even from unjust laws. The

present case also signifies the decline of judicial reasoning, the learned

justice have unsuccessfully conglomerated the bits and pieces of

various irrelevant judgments without substantiating the reason for

quashing the FIR. The reason that he adopted speaks for itself, as the

learned justice never justified the emergence of interference at the trial

stage. Since, the ivory tower was adorned by two judges nowhere we

could find the concurrence of brethren learned justice whether his

concurrence is part and parcel of brother justice. By no stretch of

imagination we could draw any inference about the judicial reasoning

concurring with other judge.

It would be appropriate to conclude the shorter version of my

comment from the wise words of V.R.Krishna Iyer:

“Law without justice is blind; justice without law is lame; law

geared to justice is order.”

V. Elanchezhiyan

10

Id at 186. LL.M., IV Semester (Two-Year Course), Indian Law Institute, New Delhi.