Vol. 4 NO. 1 MARCH 2013 ISSN: 0976-3570

INDIAN JOURNAL OF LAW AND JUSTICE

DEPARTMENT OF LAW

UNIVERSITY OF NORTH BENGAL

DARJEELING, WEST BENGAL, INDIA

Vol. 4 No. 1 MARCH 2013 ISSN: 0976-3570

EDITORIAL BOARD

Chief Editor

Prof. Gangotri Chakraborty.

Editors

Prof. Bishnu Prasad Dwivedi, Dr. Rathin Bandyopadhyay, Dr. Sujit Kumar Biswas.

Assistant Editors

Mr. Om Prakash Sharma, Dr. Rajendra Dhar Dubey, Ms. Sangeeta Mandal, Ms. Sanyukta Moitra, Dr. Diganta Biswas, Dr. Kaushik Ghosh

Editorial Assistants

Mr. Soumen Mukherjee, Ms. Priyanka Zimba, Ms, Shruti Kejriwal

Advisory Board

Prof. Manik Chakraborty, Professor, Depatrtment of Law, University of Burdwan. Prof. Sarit Kr. Sadhu, Professor, Department of Law, University of Burdwan. Prof. B. P. Panda, Professor of Law, PG Department of Law, BerhampurUniversity, Orissa Prof. N.S. Gopalkrisnan, Professor, Department of Law, Cochin University of Science and Technology, Cochin, Kerala. Prof. B.C Nirmal, Professor, Dean and Head, Department of Law, Banaras Hindu University. Prof. N.K.Chakraborty, Professor, Department of Law, University of Calcutta Prof. K.N Chandraserkhran Pillai, Former Professor of Law, Cochin University of Science and Technology, Cochin, Kerala. Prof B.S Chimni, Professor, School of International studies, Jawaharlal University, New Delhi Prof. R. N. Sharma Professor, Department of Law, Jainarayan Vyas University, Jodhpur, Rajasthan. Prof. V.Vijay Kumar, Vice-Chancellor, Dr. Ambedkar Law University, Chennai Prof. V. Hemlata, Professor of Law, S.V University, Tinpati,Andhra Pradesh Prof. S. S. Chatterjee, Dean, Faculty of Law, University of Calcutta Prof. V.Joshi, Professor of Law, ILS Law College, Pune, Maharashtra. Prof. Balaraj Chauhan, Vice Chancellor Rammonohar Lohia National Law University, Lucknow, U.P. Prof. B.B Pandey, Former Professor, Department of Law, Delhi University Prof. Ved Kumari, Professor, Department of Law, Delhi University Prof. Subhram Rajkhowa, Professor of Law and Head, Department of Law, Guahati University Prof. Frank Bloch, Vanderbilt University, New Jersey, U.S.A Prof. Phil Thomas Cardiff Law School, Cardiff University, Wales, U.K Prof. Iyan Ben Vinisti, Department of Law, University of Tel Aviv, Tel Aviv, Israel. Prof. Brenda V. Smith, American Law School, American University, Washington,U.S.A Dr.Yuvraj Sangroula, Kathmandu School of Law, Purbanchal University, Bhaktapur, Nepal.

A Peer Reviewed Refereed Journal

Vol. 4 NO. 1 MARCH 2013 ISSN: 0976-3570

INDIAN JOURNAL OF LAW AND JUSTICE

DEPARTMENT OF LAW

UNIVERSITY OF NORTH BENGAL

DARJEELING, WEST BENGAL, INDIA

INDIAN JOURNAL OF LAW AND JUSTICE

Cite This Volume as IJLJ (2013)

Printed at North Bengal University Press, Raja Rammohunpur, P.O- North Bengal University, District: Darjeeling, Pin – 734013, West Bengal, INDIA for the Department of Law, University of North Bengal.

The Indian Journal of Law and Justice is a biennial publication. Contributions to the Journal are invited in the form of articles, notes and case comments. Contribution should be typed in double space on one side of A-4 size paper and sent in CD or as an attachment with e-mail at: nbulawdepartment@ gmail.com The Department of Law shall be the sole copyright owner of all the published materials. Apart from fair dealing for the purposes of research, private study or criticism, no part of this Journal may be copied, adapted, abridged, translated, stored in any retrieval system, computer system, photographic or other system or reproduced in any form by any means whether electronic, mechanical, digital, optical, photographic, or otherwise without prior written permissions from the publisher. The editors, publishers, and printers do not own any responsibility for the views expressed by the contributors and for the errors, if any, in the information contained in the Journal.

CONTENTS

Vol. 4 No. 1 MARCH 2013 ISSN: 0976-3570

Page Editorial xx

Articles

Female Foeticide: Causes and Cure xx

R. K. Marwah and Suruchi Kohli

Right of Accused at Discharge Stage of Criminal Trial: xx

Some Reflections

Akhilendra K Pandey

Significance of Jurisprudential Principles of Draft Proposal

Coastal Regulation Zone (CRZ) 2010 for the Protection and

Promotion of Coastal Ecology and Marine Environment xx

Jai S Singh

Judicial Review and Policy Decisions: Emerging Perspectives xx

Jyoti J Mozika

Role of Corporate Social Responsibilities in Qualitative Growth

of Indian Educational Sector: Emerging Issues with Special

Reference to Companies Amendment Bill, 2012 xx

Rathin Bandyopadhyay and Soumen Mukherjee

Intellectual Property Rights through the Prism of the Constitution of India xx S. P. Bhaira and C. P. Gupta

Intellectual Property Rights and Challenges before

Higher Education in 21st Century xx

Vivek Y Dhupdale

Secularism in Indian Constitution and the Experience xx

N. P. Verma

Intellectual Property Protection of Medicinal Plants of

Cooch Behar – A Case Study of the Current Status xx

Partha Pratim Paul

The Role of the President of India During Formation of

Government: A Critical Appraisal of Constitutional Provisions xx

Biswajit Chatterjee

Right to Health and Social Security of Women in India:

A Study under Various Laws xx

Rajendra Dhar Dubey

NGO Intervention in Transformation of the Condition

of Rural Poor in India [A Case Study (2004-2008) in

the Coochbehar District, West Bengal] xx

Kaushik Ghosh

Corporatisation of land: It’s Dimensions and Process

under the Different Legal Systems xx

Diganta Biswas

Sustainable Timber Trade: Mechanism under

Indian Forest Act, 1927 xx

Ripon Bhattacharjee

Competition Law v. Intellectual Property Law:

A Never Ending Tussle? xx

Avishek Chakraborty

Enforcement of Civil Servants’ Human Rights: An Overview xx

Ratemo Tom Junior

Notes and Comments

A Journey in Search of Sovereign xx Gangotri Chakraborty

Constitutional Prohibition of Sex Discrimination in

Employment and Legislative Efforts: Quest for Equality xx

Shiv Shankar Singh

EDITORIAL

Justice, both social and legal, is carried out by the state by

enacting laws. This requires insights into the nature and function of

law and legal institutions as essential components of the common

good. The “institutional” virtues are fundamentally different from

the individual virtues. Many people confuse Social Justice with

individualistic or governmental actions and attack only the

symptoms of social disorder and breakdown. They miss the

structural root causes and institutional defects underlying

homelessness, hunger, and mass unemployment and such social

ills. Many even assume that only the state can remedy these

symptoms but in effect this is not so and the people both

individually and collectively have a role to play.

An effective economic democracy based on widespread individual

ownership of the means of production under a sound governmental

regulatory mechanism would establish a sound basis for ensuring

individual freedom and the protection of basic human rights and

dignity. As William Cobbett, an early 19th century social

commentator, noted:

Freedom is not an empty sound; it is not an abstract idea; it is not

a thing that nobody can feel. It means—and it means nothing else—

the full and quiet enjoyment of your own liberty.

The principles underlying participative justice require that everyone

have the right to participate in the fullness of the common good,

particularly in the institutions which determine access to

ownership of advanced technology. True distributive justice follows

participative justice. In today’s high technology environment and

competitive global marketplace, economic participation in the

common good should not—and cannot—be limited solely to a wage

system job. Justice in distribution is based on each person’s

contributions to production, not on the basis of his needs. To be

socially just, the opportunity and social means to own a sufficient

amount of, and derive a viable level of income from deductive

assets cannot be denied to anyone. As George Mason stated in

Section One of the Virginia Declaration of Rights of June 12, 1776:

…all men are by nature equally free and independent and have

certain inherent rights, of which, when they enter into a state of

society, they cannot, by any compact, deprive or divest their

posterity; namely, the enjoyment of life and liberty, and pursuing

and obtaining happiness and safety Social Justice requires that the

institutions of society be examined and corrected as world

civilization is altered by technological change, manifesting

discoveries and inventions by many creative individuals over the

centuries

The most challenging problems facing society, however, are not in

our physical sciences, technologies, and surroundings. Aside from

violations of individual virtue, our most serious social problems can

be traced to the growing gap between our technological

environment and our institutional environment.

The first environment we can see or feel; it changes with scientific

inventions and developments. The second environment consists of

“invisible structures” (i.e., laws, constitutions, tax and central

banking systems, management systems, and other social

institutions), things we cannot see or feel— things which, in Fuller’s

words, must also be “adequately organized.”1 This invisible part of

our cultural environment—our “social architecture”—improves with

our understanding and application of core values and fundamental

principles, especially universal principles of social and economic

justice. The design quality (from both a justice and efficiency

standpoint) of our laws and social institutions that determines the

1 Introduction to Social Justice 2R. Buckminster Fuller, Utopia or Oblivion: The Prospects

for Humanity. New York: Bantam Books, 1969, p. 320.

quality of how people “relate” to each other, to their physical

environment, and to the process of technological change. It

determines whether those relationships bring harmony or conflict,

abundance or waste, human development or degradation, a culture

of life or a culture of death. This unseen cultural environment

reflects our ultimate spiritual and moral values and defines the

quality of our daily lives, even more than the tools we use or the

physical structures that surround us. Like human nature, ultimate

values and inalienable human rights do not change as science and

technology advance. The deterioration of our moral framework and

the emergence of social barriers to individual fulfilment lead

inevitably to what social scientists call “alienation.” These artificial

barriers deprive people of equal opportunity and the means to

control their own destinies, and thus reinforce injustices and

divisions in society.

The Indian Journal of Law and justice published by the Department

of law concerns itself with these unusual issues of social milieu.

Every issue of the journal, as far as practicable, deals with

contemporary & burning social debates. The value and regard for

this journal can be judged by the overwhelming demand for it and

the encouragement of the legal fraternity in publishing it. Across

India the legal academia enriches the journal with their thought

provoking articles. It is a platform for debates, bouncing of ideas,

developing doctrines and ushering in a social change.

The errors, if any, is that of the editor, all credit belongs to the legal

fraternity and responsibility of opinions rest with the authors. Any

suggestions will only help us to improve further.

Gangotri Chakraborty

Chief Editor

DEPARTMENT OF LAW, UNIVERSITY OF NORTH BENGAL

The Department of Law is prominently situated on National Highway 31

between Bagdogra and Siliguri in the District of Darjeeling, West Bengal. The

distance from Bagdogra is six kilometers and from Siliguri is seven kilometers.

The Department has its own campus in the south Block of the North Bengal

University. The sprawling campus of the University enjoys the pristine beauty of

the eastern Himalayas and is the intellectual hub of North Bengal. Siliguri is an

important sub-division of the district and commercial capital of North Bengal.

Located at the foot hills of eastern Himalayas, Siliguri is the gate way to North

eastern India and land locked countries like Bhutan and Nepal. It shares a huge

and porous international border with Bangladesh, Nepal and Bhutan. It is well

connected with all metropolis and major cities by air and rail.

The Department of Law was formerly known as the University College of Law

and was established as such in the year 1974. It was upgraded as the

Department of Law in the year 2000. Presently the Department offers a B.A. LL.B.

[Honours] 5 year integrated course, LL.M. course and Ph.D. The intake at the

LL.B. level is eighty, and the LL.M. course which was started in 1993 has twenty

five seats. The criteria of admission both at LL.B. and LL.M. is on merit. The

Department has a rich Ph.D. programme. It was started in 1999 and since then

more than 24 Ph.D. degrees have been awarded. Presently there are about

twenty five scholars engaged in doctoral research under various faculty members

under the UGC Regulation, 2009. The Department attracts scholars and students

from all over India and especially from Sikkim, Assam, Tripura, Arunachal

Pradesh, Uttar Pradesh and Orissa. It also attracts students from Bhutan, Nepal

and Bangladesh. The self financing P.G. Diploma course on Environment has

presently been discontinued.

The Department was jointly selected by the British Council, Delhi, University

of Warwick, U.K., and the National Law School of India University to carry out the

‘Human Rights Outreach Project’. It was also a partner institution with CEERA,

National Law School of India University for carrying out environment education

for forest personnel, Tea Garden personnel and judicial officers.

The Department has published Booklets in Human Rights, Environment

Legislations in Bengali and Nepali. It has a Legal Aid Clinic in collaboration with

the State Legal Services Authorities. It runs a very successful NSS programme.

Published by University of North Bengal, Raja Rammohunpur, P.O. North Bengal University, Dist. Darjeeling, PIN – 734013, West Bengal, INDIA.

Editorial

Justice, both social and legal, is carried out by the state by enacting laws.

This requires insights into the nature and function of law and legal

institutions as essential components of the common good. The

“institutional” virtues are fundamentally different from the individual

virtues. Many people confuse Social Justice with individualistic or

governmental actions and attack only the symptoms of social disorder

and breakdown. They miss the structural root causes and institutional

defects underlying homelessness, hunger, and mass unemployment and

such social ills. Many even assume that only the state can remedy these

symptoms but in effect this is not so and the people both individually and

collectively have a role to play.

An effective economic democracy based on widespread individual

ownership of the means of production under a sound governmental

regulatory mechanism would establish a sound basis for ensuring

individual freedom and the protection of basic human rights and dignity.

As William Cobbett, an early 19th century social commentator, noted:

Freedom is not an empty sound; it is not an abstract idea; it is not a thing

that nobody can feel. It means—and it means nothing else—the full and

quiet enjoyment of your own liberty.

The principles underlying participative justice require that everyone have

the right to participate in the fullness of the common good, particularly

in the institutions which determine access to ownership of advanced

technology. True distributive justice follows participative justice. In

today’s high technology environment and competitive global marketplace,

economic participation in the common good should not—and cannot—be

limited solely to a wage system job. Justice in distribution is based on

each person’s contributions to production, not on the basis of his needs.

To be socially just, the opportunity and social means to own a sufficient

amount of, and derive a viable level of income from deductive assets

cannot be denied to anyone. As George Mason stated in Section One of

the Virginia Declaration of Rights of June 12, 1776: …all men are by

nature equally free and independent and have certain inherent rights, of

which, when they enter into a state of society, they cannot, by any

compact, deprive or divest their posterity; namely, the enjoyment of life

and liberty, and pursuing and obtaining happiness and safety Social

Justice requires that the institutions of society be examined and corrected

as world civilization is altered by technological change, manifesting

discoveries and inventions by many creative individuals over the centuries

The most challenging problems facing society, however, are not in our

physical sciences, technologies, and surroundings. Aside from violations of

individual virtue, our most serious social problems can be traced to the

growing gap between our technological environment and our institutional

environment.

The first environment we can see or feel; it changes with scientific

inventions and developments. The second environment consists of

“invisible structures” (i.e., laws, constitutions, tax and central banking

systems, management systems, and other social institutions), things we

cannot see or feel— things which, in Fuller’s words, must also be

“adequately organized.”1 This invisible part of our cultural environment—

our “social architecture”—improves with our understanding and

application of core values and fundamental principles, especially universal

principles of social and economic justice. The design quality (from both a

justice and efficiency standpoint) of our laws and social institutions that

determines the quality of how people “relate” to each other, to their

physical environment, and to the process of technological change. It

determines whether those relationships bring harmony or conflict,

abundance or waste, human development or degradation, a culture of life

or a culture of death. This unseen cultural environment reflects our

1 Introduction to Social Justice 2R. Buckminster Fuller, Utopia or Oblivion: The Prospects for

Humanity. New York: Bantam Books, 1969, p. 320.

ultimate spiritual and moral values and defines the quality of our daily

lives, even more than the tools we use or the physical structures that

surround us. Like human nature, ultimate values and inalienable human

rights do not change as science and technology advance. The

deterioration of our moral framework and the emergence of social barriers

to individual fulfilment lead inevitably to what social scientists call

“alienation.” These artificial barriers deprive people of equal opportunity

and the means to control their own destinies, and thus reinforce injustices

and divisions in society.

The Indian Journal of Law and justice published by the Department of law

concerns itself with these unusual issues of social milieu. Every issue of

the journal, as far as practicable, deals with contemporary & burning

social debates. The value and regard for this journal can be judged by the

overwhelming demand for it and the encouragement of the legal

fraternity in publishing it. Across India the legal academia enriches the

journal with their thought provoking articles. It is a platform for debates,

bouncing of ideas, developing doctrines and ushering in a social change.

The errors, if any, is that of the editor, all credit belongs to the legal

fraternity and responsibility of opinions rest with the authors. Any

suggestions will only help us to improve further.

Gangotri Chakraborty

Chief Editor

1

Female Foeticide: Causes and Cure

Dr. R.K.Marwah1

Suruchi Kohli 2

Women constitute half of the World Population, perform nearly two-third of work hours,

receive one –tenth of the world’s income and own less than one-hundred percent of world’s

property. Keeping in view all these things it can be mentioned at this stage in respect of

women inequality and suffering in the following lines:

“ Woman you brought with you a new song

But we did not let you speak out

Although yours is the voice of half the earth”3

The unholy alliance between tradition (son preference) and technology (ultra-sound) has a

played a havoc in Indian society. The interference with the natural pattern of birth not only

throws the normal social life out of gear bringing in all sorts of crimes,but also tends to

disrupt the demographic character of a heterogeneous society,producing some of the most

unexpected trends in the distribution of population and ushering in grave cultural changes in

its wake.

The Census Data of 2011 clarifies the sorry picture of the female children in India.The 0-6

sex ratio has touched 914:1000 which is the lowest ever since we have gained

independence.4In the wake of such a stringent law as is vivid from the census reports it is a

jigsaw puzzle to solve that how and why are the efforts of the legislators going waste,why

such a progressive legislation is not able to constrain the evil of female foeticide. This paper

1 Dr.R.K.Marwah,Head of the Dept., Department of Laws, Guru Nanak Dev University, Regional Campus, Jalandhar 2 Suruchi Kohli, Assistant Professor, Department of Laws, Guru Nanak Dev University, Regional Campus, Jalandhar 3 Struggle for Gender Justice,Justice Sunanda Bhandare Memorial Lectures, edited by Murlidhar C.Bhandare,Penguin Books India,2010,New Delhi, p-l17.

4 www.mapsofindia.com as on 30 April 2012.

2

tries to find out and determine the reasons for which this evil is raising its evil teeth and

eating into our society.

So grave is the situation that President K.R. Narayan, in his Republic Day address in 2002

referred specifically to female foeticide in the context of the ‘deplorable status ‘of women.

He also referred to the increasing incidence of rape, domestic violence, sexual harassment at

workplaces and trafficking of women. In the powerful words of the President,

“The crime statistics are indicative of women’s traumatized existence. No place is safe for

them, not even their mother’s womb. They are put to death before they are born.”5

India’s legal framework stipulates equal rights for all, regardless of gender. In practice,

however, unequal power equations between males and females have led to violations

of women’s reproductive rights. India’s legal framework provides for equal rights for all,

regardless of gender. Article 21 of the Indian Constitution boasts of providing the

Right to Life to all individuals, besides this there exist a number of rights to

promote justice in the society. What to talk of other rights, women are not even

given the right to be born today. Owing to technological advancement the females

are not even allowed to be conceived.

This sorry state of affairs has made the researcher curious to dig out the reasons for the

continuation of this evil and the efforts needed to be done to contain this evil.

The girl child has often been a victim to the worst forms of discrimination. Gender bias,

deep-rooted prejudices, and discrimination against the girl child have led to many cases of

female foeticide in the country. Strong male preference, with the extreme consequence of

elimination of the female child, has continued to increase rather than decline with the

spread of education and economic development. 2

It is sad that on the one hand the Indian culture and tradition consider womanhood as sacred

and sacrosanct and on the other hand Indian women are killed in the mother’s womb.6 It is a

5 Ashok K.Jain,TheSaga of Female Foeticide in India,Socio-legal offshoots,Ascent Publications,2006,p-4. 2T.V. Sekhar and Neelambar Hatti “ Unwanted daughters;Gender discrimination in modern India” in Tulsi Patel,Sex selective abortion in IndiaGender Society and New reproductive technologies,Sage Publications,New Delhi,p-1. 6 Female Foeticide: A Socio- Legal Analysis, Dr.Binayak Patnaik,Cr.LJ, Dec.2006,P-313

3

grevious situation which is staring in the face of Indian society that the sex ratio as per the

census of 2011 is as low as 914:1000 in 0-6 years category. It has become clear from the

above data that the sex ratio is dipping with every passing day. This problem should not be

taken lightly, it has potentiality of an atom bomb.

UNICEF, 2007 has warned that the “alarming decline in the child sex ratio is likely to result

in more girls being married at a younger age more girls dropping out of education, increased

mortality as a result of early child bearing and an associate increase in acts of violence

against girls and women such as rape, abduction, trafficking and forced polyandry.” Over the

next 20 years, in parts of China and India there will be a 12-15 percent excess of young men

leading to obvious bride shortage: between 2015-2030 there will be 25 million men in India

who have no hope of finding a wife.The decline in the number of females in society is

increasing sexual and social crimes against women, such as rape, abduction, bride-selling

etc.. an increase in prostitution and sexual exploitation and cases of HIV-AIDS. This will

lead to physiological and psychological disorders, particularly amomg women. Individual

woman’s health will be affected by repeated pregnancies and forced abortions. Situation

where all men of the family share the same wife.7

The Pre-Natal Diagnostic Techniques Act 1994 which was amended in the year 2003 hoped

to constrain this crime against humanity. The legislation has done nothing to check illegal

abortions, infact, the legislation has done only one thing and that is that they have made the

abortion process and the sex determination tests more expensive and hence promoted

corruption. The doctors charge as much as they want from the people who wish to get sex

determination tests and abortion done, as they conduct these tests stealthily. The condition

that the pre natal diagnostic tests may be performed on patients only if it has been referred by

a genetic clinic has done nothing but encouraged malpractice and corruption. Money

exchange hands, false ultra sound scan reports are prepared and illegal abortions go and on

in the garb of termination for the sake of pregnant woman’s health. The mandatory reference

letter from genetic clinics is managed and the law is flouted. Thus the regulatory provisions

don’t have any practical utility, and these laws have proved to be mere paper tigers. Until and

7 Declining Child sex ratio in Punjab: A Case Study, Piar Chand and Shashi Poonam,www.punjab.333.org as on 15 May, 2009.

4

unless the doctor realize, that they are not supposed to DESTROY THE CREATORS, the

laws will remain on paper.

The census data of 2011 presents a sordid picture of the fact that the preference of Indian

parents for a male heir is a centuries old malady which refuses to fade away notwithstanding

the stringent laws and the reformation in girl child’s status. Leave alone equal economic and

social rights,women and girls have not even got a violence free existence to boast of.8 It is a

matter of great shame that in Punjab even after 7 years of the new Act’s passage the male-

female sex ratio is as low as ever, it is just 798 females per1000 males as on 20 July,2009

.9Also there are 1355 registered ultra sound centres in Punjab out of which 322 centres have

indulged in violation of this Act.10

8 The Tribune,12 April,2011. 9 Department of Family Welfare,Chandigarh. 10 Ibid. 11Ibid.

District Sex-ratio

0-6 yrs

No. of

Regd.

Centers

Action taken for violation of the Act11

Upto year 2006 Year 2007 Year 2008 Year 2009 Total upto

date

Court

cases

Under

sec 20

Court

cases

Under

sec 20

Court

cases

Under

Sec 20

Court

cases

Under

sec 20

Court

cases

Under

Sec 20

*Amritsar 790 154 10***

*** 21 - 4 6 25

Barnala 786 17 1 4 1 4

Bathinda 785 91 11 27 1 3 2 12 32

Faridkot 812 31 4* 5 1 - 4** 5 9

F.G. Sahib 766 18 5*** 3 - - 1 5 4

Ferozepur 822 74 2 22** 1 2 3 24

5

It is vivid from the data that has been availed from the Family Welfare Department of Punjab

that the sex ratio in Punjab has not improved even after the 2003’s amendment.Till August

2009, out of 1355 registered ultrasound centres ,427 centres have been prosecuted.12Only 15

doctors have been convicted so far out of these rest are pending in the courts.Out of these 15

also most of the cases are again in the courts as appeals against the lower court’s order.13

At the national level too the results of this Act are not encouraging.It is shocking to know that

at an all India level just 13 convictions have been reported in this year as far as this Act is

12 Ibid. 13 Ibid.

Gurdaspur 789 86 1 11 - - 1 11

Hoshiarpur 812 68 3 4 - 4 3 3 11

Jalandhar 806 231 7 55 1 - 1 1 10 55

Kapurthala 785 44 5 13* - 1 5 14

Ludhiana 817 230 8 13* 1 10 1 16 1 5 10 44

Mansa 782 21 2** 4 - - 2 4

Moga 818 42 2 7 - - 2 7

Mohali 811 36 5 6 - - 2 5 8

Muktsar 818 34 2 9* - - 1 3 9

N. Shahar 808 29 6 15 - - 1 1 7 16

Patiala 777 63 9*** 12* - 1 2 9 15

Ropar 794 15 3** 6 1 1* 2 4 9

Sangrur 786 37 6*** 13* - - 1 2 5 8 20

*T. Taran 34 - - 1 4 1

State 798 1355 92 250 6 26 3 31 4 13 105 322

6

concerned. The data released by the government gives a shocking insight into how the

country, including rogue states of Haryana, Punjab and Delhi, continue with its lackadaisical

approach in the implementation of the ‘strengthened’ Pre Conception and Pre-Natal

Diagnostic Techniques Act. Just 13 cases of conviction under the PNDT Act were reported in

2010 exposing the complete failure of all state governments in effective implementation of

the law to prevent the killing of unborn daughters while also bringing related schemes under

the scanner.14

For a meaningful study,the law and social realities subjected to it have been critically

examined in this paper. The Census Data, demographic data published by the other agencies

and the statistics collected from the office of Registrar of Births will also be analysed to

identify the status of women population in the Indian society and more particularly in Punjab

State. In addition to this data will be taken from the Family Welfare Department as to the

enforcement of the PC and PNDT Act, 1994.

The causes of female foeticide and infanticide lie buried deep in the social structure of our

society.15 It has been found that this evil is a result of a number of social ills and the reasons

for this practice tend to be so inter mingled that it is hard to determine a single cause for this

menace’s prevalence.

In India the religion is the principal magistrate of the society. The Hinduism i.e. the

dominant Indian Religion, accords sons with certain unique responsibilities..The son confers

the benefit upon the souls of dead ancestors by offering ‘PINDA’ and ‘WATER’ to them on

the occasion of ‘SHRADDHA’. He also conducts funeral rites. According to

Vashishtha,”When a father sees the face of his living son on his birth, the debt is transferred,

attains immortality and, there are innumerable heaven for a man who has a son and there is

no place in heaven for a sonless man. The son keeps the continuity of lineage.16 Then there is

the religious obligation to carry on the VANSHA or lineage and in order to get the boon of a

male-a number of females are sacrificed.

14 The Tribune,4 August,2011. 15 Female Infanticide and Foeticide,A Legal Perspective, Avashesh, NLSUI, Series 1, No. 1.

16 Female Foeticide: A Socio- Legal Analysis,Dr.Binayak Patnaik,Cr.LJ, Dec.2006,P-313

7

Most of the parents who have only daughters feared for their social security in old age.

Another reason given for the existence of female foeticide is the problem of huge dowries

needed to wed daughters. The dowry or groom price is so staggeringly high, irrespective of

the class structure that generation may have to toil to repay the debts incurred during

marriage. The Indian society’s thinking is quite vivid in the famous Tamil proverb, which

proves amply that the Indian society considers women no more than a liability. It says:

NURTURING A GIRL CHILD IS LIKE WATERING YOUR NEIGHBOUR’S PLANTS.

In today’s material world a women is fast being relegated to the rank of commodity

and marriage has become more of a business alliance than a sacred bond between two people.

The Indian society’s mental outlook can be traced in a U.P’s old folk song:

‘Prabhuji mein tori binti karon,

Paiyan padoo baar baar,

Agle janam mohe Bitiya na dijo,

Narak chahe dijo dar………….”

“Oh God I beg of you,

I touch your feet time and again,

Next birth don’t give me a daughter,

Give me hell instead……”17

A study of National Law School of IndiaUniversity,Hyderabad also reveals this bad practice.

“We were told in Gohad Block (Bhind district, Madhya Pradesh) that when a child is born,

the men collect in one room and the women in another. If the child is a male, they bang a

thali (metal plate) or fire shots in the air to announce his birth. If a girl is born ,an elderly

17 Zaila Zaidi,www.sikhspectrum.com as on 15th April 2009 .

8

woman of the house goes to the members and asks ‘BARAT RAKHNI HAI YA LAUTANI

HAI?(SHALL WE WELCOME THE MARRIAGE PROCESSION OR SHALL WE BID IT

TO RETURN?), every woman leaves the room and the mother of the newly born is asked to

put tobacco in the girl’s mouth.There is no question of resistance as it would mean that the

mother herself is at risk of either being killed or thrown out of the house.”18

The social activists point out the nexus between dowry customs and daughter disadvantage,

and irrational justification of solving one discrimination(dowry) by resorting to another

(foeticide).The Dowry Prohibition Act should so be implemented more rigorously and

stringently to ensure the parents that daughters are not a liability on the family.

Crime against women is ever increasing and it is becoming a herculean task to keep

daughters’ dignity safe.This is regarded as one of the major causes that people prefer not to

have female children. They are responsibilities, their chastity is required to be protected

always. What happened in Delhi on 16 December 2012 is a reason enough of the fact that

women deem girl children to be social burden. In Ludhiana in the year 2009 a little infant

girl of 6 months was raped by a migrant labour19 and in Surat an old lady of 90 years was

made the sacrifice of the lust of a 25 year old man.On an average,every single day 42 women

are raped and almost 18 cases of dowry deaths occur each passing day.Further,5 women are

estimated to face cruelty every hour, while in similar amount of time,4 cases of molestation

are reported.20 According to the National Crime Records Bureau 2011, a total of 228560

incidents of crime against women (both under Indian Penal Code-IPC and Special and Local

Laws-SLL) were reported in the country. 8618 dowry deaths were reported,24206 cases of

rape were 201221.

This is just the tip of the iceberg as these are the reported cases and God knows how many

cases go unreported. In such a sorry state of affairs people prefer that the girl child is not born 18 Female Infanticide and Foeticide, A Legal Perspective,,Avashesh, NLSUI, Series 1, No. 1,P-18

19 The Ludhiana Tribune,25 August,2010 20 Female Foeticide in Punjab, Jagbir-Singh, Army Institute of Law Journal,Vol-1,2007,p-178 21 www.ncrcb.nic.in as on 16 Jan.,2013.

9

to them. Because of socio-economic and cultural reasons and also the prevailing security

risk, in general couples have to opt for sex selective abortions.Even careerist women who

have 9-5 jobs decide to keep a male foetus, because she knows that in her absence from the

home, it will be difficult to look after the girls and provide them with a secure environment.In

the matter of sex of the child, the inner feelings of the rural Indian women as well as the

political figures and urban women dignitaries is similar. Therefore the sex test is the proof

that education and material progress alone cannot alter traditional attitudes.Even to counter

this, the measures adopted through education, incentives to girls, and their parents or

restrictions to sex determination tests have not been effective.22

The Cure for this disease:

The law can only facilitate an environment, but it is public awareness which is most

important. We need attitudinal change as well as laws. What is needed is a structural overhaul

of society.

The people need to come together in a flock and fight this evil collectively.It has been proved that

the model adopted by this small township of Nawanshahr, Punjab is very efficient and deserves to be

emulated by all the states grappling with this demon called female foeticide.It is said that law alone

cannot bring about social change what is required is the collective fight of law and social groups

which brings about change. In the year 2005 when Mr. Krishan Kumar was appointed as the Deputy

Commissioner of this town,the sex ratio of 0-1 years was an abysmal 780. He divided the entire

programme to check this evil into two-one awareness campaign and other enforcement measures by:

a) Medical audit b)Social audit

22 Socio-economic Explanation for declining child sex ratio: A study of North- Western States in India ,R.S.Bora andR.P. Tyagi, Demography India,Vol.37, no.(2008),p47-62

10

Flow Chart For Campaign against Female Foeticide23

(Suvidha Centre)

Monitoring of F - Forms ……. …….

……………………………..

In Nawanshahr the Deputy Commissioner first of all noticed that the efforts of the Child

development and Health were not proving fruitful in checking sex determination and the

consequent female foeticide. He himself became the steering wheel having in control all the

machinery i.e. he brought all the social groups and NGO’s together and assigned each of

them particular areas and they were asked to set up village level committies and block level

23 23 The report presented by Nawanshahr administration to the then Governor of Punjab in Aug.-2006.

Deputy Commissioner Office

Enforcement

(Civil Surgeon, Police)

Awareness Campaign

(Largely done by NGOs)

District Level

Medical

Audit

Social

Audit

Comparison

Block

I

Block

II

Block

V

Village 1 Village 5

11

committies,for strengthening the grass root of the society. Block level meetings were

organized by village lambardars( headman),sarpanches alongwith ANM's and LHV’s of

health department participated. Thereafter district level meeting was held by all Municipal

Councilors and also the social activists.It came to be seen that the survey of the pregnant

ladies was not being done in a fair manner,it is a known fact that the period for sex

determination is 3- 5 months of pregnancy where there are maximum chances of their being

aborted. Realizing this, a computer software was prepared which carried all the details of the

expecting lady i.e. her age, number of the children she already had, her telephone number and

in case she does not have a telephonic contact then the sarpanch’s number. After this a list

was prepared giving details of mothers having pregnancy form 3rd to 5th month and then a

female operating from the deputy commisioner’s office telephonically asked these ladies

about the well being of their foetus,which leaves an indelible mark on mind of the lady that

she is under constant vigil and she should not indulge in the heinous task of sex

determination. This computer software also generated a list of those ladies whose date of

delivery had passed, and the D.C. office telephonically confirmed it again whether the child

born was a male or female and in case no child is born then a proper investigation regarding it

is carried out.The minute examination revealed that ANM’s and medical practitioners had a

jinx and they are the ones who took the expecting mother to scanning centres and arranged

for elimination of the foetus. To break this nexus, all midwives, ANM’s and nurses were

identified their telephone numbers were recorded and they were advised strictly to refrain

from such activities or cases would, be registered against them. They were asked further to

bring in those couples who wanted to get these tests done. Also it was seen that atleast 65

government departments were free from their own work for most part of the year, their

services were also taken and every such officer was allotted 5 villages. Every such officer

would monitor sex ratio in these villages.In addition to this the DC indulged the youngsters of

the town in this programme, they were invited for meetings with the DC and were told that

they would be given a cash prize of Rs.100 if they inform the DC office regarding any

expectant mother. Also to generate awareness regarding this menace personal letters to lady

sarpanches are issued, various cycle/scooter rallies are organized. Mourning of baby girls is

done in case an abortion of a foetus takes place preceding sex determination. The DC’s have

been sending congratulatory messages to the families on birth of females.

So as to intensify the enforcement measures it was felt that all the scanning centers need to be

monitored more strictly.All scanning centres are supposed to furnish the details of the scans

12

conducted by themduring particular month, but it has been seen that the scanning centres

omit providing this information.In order to analyse the data submitted by the scanning centres

in a more effective manner, a software was prepared by the district administration and all the

data collected from scanning centres on 5th of every month was fed in the

computer.Subsequently medical audit reports were generated and the scanning centres who

indulged in any malpractise was suitably punished.

So the campaign from both sides i.e. SOCIAL AUDIT and the MEDICAL AUDIT certainly

helps to bring down the cases of female foeticide. The number of children born in

Nawanshahr in the last 11 years bears it out that the law has to be armed with societal efforts

and vice versa to the top of it the administration should be strong willed to weed out certain

evils from the society. Now, Mr.Krishan Kumar though is not in Nawanshahr but his

predecessors have emulated him and have been able to keep female foeticide at bay.24

This model has received appreciation by the Punjab and Haryana High Court. It has been

realised that the socital efforts if enforced by the administration bring positive results so it has

directed all the “DEPUTY COMMISSIONERS IN THE STATE” to personally monitor the

implementation and progress of the Nawanshahr model.25

Conclusions and Suggestions:

The urgent necessity, therefore is to bring about a radical change in the societal attitude

towards women alongwith strict implementation of law.. The possible courses of action for

the effective implementation of the PC & PNDT Act is to increase sensitization and concern

for gender based discrimination and educate the masses about the utility of the girl child.The

failure of the PNDT Act to check female foeticide bears that the women still occupy the

lower rung in the Indian society. An evil practice can be curbed not by cutting the stems

growing on the trunk above the ground, but by eliminating the roots beneath. Howsoever the

Government and the people on their personal level can take following cures for the disesase

called female foeticde:

1.Well-designed financial incentives by Government can transform negative perceptions

regarding daughters and make people view them as assets .Incentives can effect behaviour

24 Upkar NGO,Nawanshahr,Punjab. 25 The Tribune,27 September 2012.

13

changes and attitude about girls. Girl children should be provided free and compulsory

education up to higher secondary level. This would decrease the so called ‘heavy investment

on girl children’ made by the parents on their daughters. They would stop thinking their

daughters as liability. Government should start various employment schemes for females

where 100% reservation could be made for women in different occupations.

2. Religious Gurus can play an important role by spreading awareness about female

foeticide. They can create awareness about wrong myths and wrong beliefs mostly spread in

each religion about the status of girl child. Religious education can play a role by preaching

against female foeticide, dowry and discrimination against the girl children. Jathedars of

Takahat Shri Damdama Sahib and Anandpur Sahib have come forward in a big way in

lending cooperation and support in improving sex-ratio in the state as their preaching and

advocacy has a lot of impact on the mindset of the society. They have issued a Hukamnama

from Akal Takht that any Sikh indulging in female foeticide will be

excommunicated.26Further Radhasoami Dera Beas in Punjab has a large following ,they have

started showing a documentary before their sermons for saving the unborn daughters and

various books have also been published by the Dera favouring women and calling for their

rights.

3. Cultural programmes with social messges can do better in favour of girl child. In case

the same message against female foeticide is repeated by different leading film-stars’political

leaders will be provoked at least, to think once afterwards.

4. Seminars, declamations, debates, women awareness camps, wall writings and

pamphlets about female foeticide can create awareness. Self dependant groups panchayat

Pradhans, Zila Parishad members, Block Samiti members, women self dependant

groups,Mahila Mandals can do a lot of work against female foeticide.

5. Electronic media as well as print media most efficiently can aware people against

female foeticide. By giving space in editorials, more news and articles about and against

female foeticide will aware people.

6. In Punjab, people often listen to their favourite singers. Singers can make their music

in the background of social message against female foeticide. They can come to the aid of

26 The Tribune,19 April,2001.

14

unborn daughter by their special song based on female foeticide. Singers can incorporate

social message in their albums even if in small numbers.

7. Writers and poets can come forward to aware the society about the sin of female

foeticide. They can compose poems against female foeticide.A new Punjabi film has been

made on this issue-“Akheeyan Udeekdiyan”,it is a touching story which gives the social

message of saving the females.

8.The trend of giving and taking dowry which takes place mostly in educated and upper class

homes cannot be discouraged by laws alone. It is entrenched in the mindset of India’s people

and no amount of preaching would stop it. However efforts should continue to be made at the

individual as well as at the government level. Stringent and effective laws should be

supported by speedy trials, dowry giving and taking cases should be tried by special courts

and short stay homes should be set up for battered women.

9. Efforts and provisions should be made to provide social security to parents who are above

65 years of age and have only daughters. They should be provided with old age pension if

they do not have a son.

10.Women’s right to own and inherit property and the social obligation of policy intervention

to inculcate these new values in households as well as legal support to implement these

values should be provided.

The conclusion emerges out that the problem of female foeticide is a great social disease

which needs to be cured at the earliest. Society has discriminated a female child in number of

ways as regard to her rights are concerned. Women have been subjected to deprivation for

centuries. Now this discrimination can be seen, when the female child is still in the womb of

her mother. Many female children are killed even before they attain the age of viability in the

mother’s womb.The evil of female foeticide is increasing day by day due to the unchecked

commercial sectors in the form of nursing homes and clinics and installation of

ultrasonography devices in various towns and localities. What is required is that not only the

PC and PNDT Act but the other allied laws are made more meaningful and properly

implemented so that the daughters are not considered a burden .There is a need for total

revolution of the society, where law will prevail, co-operation of religious leaders and

15

N.G.O.’s will be there and the people will have a progressive and positive attitude towards

female children..

1

Right of Accused at Discharge Stage of Criminal Trial: Some Reflections

Dr. A.K. Pandey1

Harold Garfinkel has described criminal trials as status degradation ceremonies.2

Criminal trial is a method by which the society, despite its difference with another society,

expresses social control over a deviant behaviour. The purpose of conducting a criminal trial

is to ascertain the guilt of the accused by following a fair procedure and giving equal

opportunity to both - the prosecutor and the accused. The framing of charge is an important

stage in a criminal trial. Before the framing of charge the presiding judicial officer has to

dispose of the application of discharge, if any, filed by the accused. The determination of the

issue whether the trial court at the time of framing the charge has the power to receive the

material filed by the accused has recently drawn the attention and attept has been made to

evaluate the effect of providing the opportunity to the accused to adduce material at this stage

of trial.

Till 1996 the Supreme Court of India was consistent in its view that at the time of

framing charge the trial court can consider only such materials that were placed before it by

the investigating agency and at this stage the defence (accused) could only be heard but has

no opportunity to produce evidence for consideration of the court.3 But it was the case of

Satish Mehra v. Delhi Administration4 where the Supreme Court observed that if the accused

were able to produce any reliable material at the stage of taking cognizance or framing of

charge which might fatally affect the very sustainability of the case, it is unjust to suggest that

no such material should be looked into by the court at that stage. The trial court would be

well within its power to consider even material which the accused may produce at the stage

contemplated in Section 227 of the Criminal Procedure Code, 1973. In this back drop, an

attempt has been made here to analyse the approach of the Supreme Court.

There are two provisions under the Criminal Procedure Code, 1973 which deal with

discharge of accused. While Section 227 provides for discharge of accused in trial before the

1 Associate Professor, Faculty of Law, Banaras Hindu University, Varanasi – 221005. 2 Garfinkel, Harold, Conditions of Successful Degradation Ceremonies, American Journal of Sociology (1965) Vol. 61 pp. 420-424 3 State of Bihar v. Ramesh Kumar Singh AIR 1977 SC 2018; Superintendent & Legal Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52; State of Maharastra v. Priya Sharan Maharaj AIR 1997 SC 2041; State of M.P. v. S.B. Johari AIR 2000 SC 665; State of Delhi v. Gyan Devi AIR 2001 SC 40 4 (1996) 9 SCC 766

2

Sessions Court, Section 239 deals with discharge in trial of warrant cases by Magistrate.5 The

provisions of Sections 227 and 239 of the Criminal Procedure Code, 1973 are beneficent in

nature so as to save the accused from prolonged harassment which is a necessary concomitant

of a protracted trial.6

The Supreme Court in Minakshi Bala v. Sudhir Kumar7explained the scope and ambit

of Section 239 and 240 of the Criminal Procedure Code, 1973. The court observed:

The Magistrate is first required to consider the police report and the documents sent with it under Section 173 CrPC and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing, the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 CrPC; conversely, if he finds there is ground for presuming that the accused has committed an offence triable by him he has to frame the charge in terms of Section 240 CrPC.8

In Satish Mehra case,9 the relation between the appellant husband and the respondent

wife were not cordial and the wife with a view to put pressure upon the appellant so that he

could not claim over bank account fastened him for the offences under section 354, 376/511

and 498-A of the Indian Penal Code by lodging an FIR. It was contended by the respondent

wife that her husband, inter alia, had sexually assaulted his daughter. The appellant wanted to

adduce certain material at the stage of discharge but the same was denied and the High Court

did not give him any relief on this issue. Then the appellant filed an appeal by special leave.

On the issue whether or not the accused could adduce material at the time of discharge, the

Court observed:

If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage.

5 226. Discharge – If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 239. When accused shall be discharged – If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record the reason for doing so. 6 See, Kewal Krishna v. Suraj Bhan 1980 Cri LJ 1271 (SC) 7 (1994) 4 SCC 142 8 Id at 144 9 Supra note 2

3

Here the “ground” may be any valid ground including insufficiency of evidence to prove charge.10

Thomas, J. explaining the object of the provision of section 227 of the Criminal

Procedure Code, 1973 observed:

The object of providing such an opportunity as is envisaged in section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves such human efforts and cost. If the material produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need to be produced only after wasting a lot more time in the name of trial proceedings.11

Further,

When the judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted by holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date . . . If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate to snip the proceedings at the stage of Section 227 of the Code itself.12

In State Anti Corruption Bureau v. P. Suryaprakasan13, a case under Section 5 (2) of

the Prevention of Corruption Act, 1947 was registered against the respondent and on

completion of investigation the charge sheet was submitted after obtaining sanction from the

government. The Special Judge took the cognizance and issued process. The respondent filed

an application seeking discharge under Section 239 of the Criminal Procedure Code, 1973 on

the ground, inter alia, that government did not consider the explanation and the said

application was rejected by the Special Judge. The respondent thereupon moved a revision

petition before the High Court and allowing the revision, the High Court quashed the

proceeding against the respondent. The High Court observed that while framing charges, the

court should apply its mind and consider the entire materials not only produced by the

prosecution but also the explanation and materials produced by the accused. But in this case,

the lower court has utterly failed to do so, the High Court pointed out.

The appellant thereupon filed a special leave petition against the order of the High

Court. Reversing the order of the High Court, the Supreme Court held that at the time of

10 Id at 771 per K. T. Thomas and M. M. Punchhi, JJ. 11 Ibid. 12 Ibid. 13 (1999) SCC (Cri) 373

4

framing the charge, the trial court is required to and can only consider the police report

referred to in section 173 of the Code and the documents sent with it. The court emphasised

that only right which the accused has at this stage is only the right of being heard and nothing

beyond that. In other words, at the stage of framing of charge hearing the submissions of the

accused has to be confined to the material produced by the police.14

The matter came up again before a bench comprising three judges in State of Orissa v.

Debendra Nath Padhi15 where it was held that at the time of framing of charge or taking

cognizance the accused has no right to produce any material and the Satish Mehta case

holding that the trial court has power to consider even materials which the accused may

produce at the stage of Section 227 of the Code was not correctly decided. In this case, on

behalf of the State it was argued that the observation made in Satish Mehta case run counter

to the view expressed by the Supreme Court in large number of decisions given over a period

of time and it amounted to unsettling well settled legal proposition and would, ultimately,

result in conducting a mini trial at the stage of framing of charge or taking cognizance. It was

contended that the view taken in Satish Mehta case would not only be contrary to the object

and scheme of the Code but would result in total wastage of the court time because of

conducting two trials; first at the stage of framing charge and the other after the charge is

framed. Thus, the true construction of Section 227 according to the State was that only the

material sent by the prosecution along with the records of the case and the documents sent

with it may be considered by the trial court at the time of framing of the charge and

consequently the accused has no right to place any material before the trial court at this stage.

On behalf of the accused, on other hand, it was argued that the procedure which

deprives the accused to seek discharge at the initial stage by filing unimpeachable and

unassailable material of sterling quality would be illegal and violative of Article 21 of the

Constitution because that would result in the accused having to face the trial for long number

of years despite the fact that he is liable to be discharged if granted an opportunity to produce

the material. The construction that the accused has no right to produce material at the stage of

framing the charge may be declared ultra vires of Articles 14 and 21 of the Constitution and

that construction should be preferred which saves the provision from being declared

unconstitutional. It was contended on behalf of the accused that to save the provision of

Section 227 of the Code from being declared ultra vires, the accused should be given a right,

14 Id at 375 per M. K. Mukherjee and S. P. Kurdukar, JJ. 15 AIR 2005 SC 359 Bench comprised Sabharwal, Dharmadhikari and Tarun Chatterjee, JJ

5

of course only a limited right, to produce unimpeachable and unassailable materials in order

to show his innocence even at the time of framing of charge.

The contention on behalf of the accused was rejected on the ground that the

expression “hearing the submission of the accused” in Section 227 of the Code cannot mean

opportunity to file the material by the accused. Thus, at the stage of framing of charge

hearing the submission of the accused has to be confined to the material produced by the

police. The Supreme Court observed:

It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of . . . the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence.16

In Palvinder Singh v. Balvinder Singh17, the trial judge dismissed the discharge application of

the respondent-accused in exercise of its jurisdiction under section 227 of the Criminal

Procedure Code, 1973. It was contended by the respondent accused that as the dying

declaration of the deceased victim was not properly recorded and there were contradictions in

two dying declarations given by the victim. Both of the grounds were rejected by the trial

court. Then the respondent – accused filed a criminal revision before the High Court and it

allowed the discharge application of the accused. Thereupon the appellant, the husband of the

deceased victim, challenged the correctness of the discharge of the respondent – accused. The

Supreme Court setting aside the impugned judgment of the High Court observed that:

“the High Court committed a serious error in passing the impugned judgment in so far as it entered into the realm of appreciation of evidence at the stage of framing of charge itself. The jurisdiction of the learned Sessions Judge while exercising power under section 227 of the Criminal Procedure Code is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not the domain of the court at that point of time.”18

Again, in Rukmini Narvekar v. Vijaya Satardekar19 two judges took different views

on this issue. While accepting the submission that at the time of framing of the charges only

the material produced by the prosecution side can be looked into by the court and the material

produced by the defence cannot be looked into Altmas Kabir, J. observed that:

16 Id. At 365 17 AIR 2009 SC 887 18 Id. At 889 per S. B. Sinha and Cyriac Joseph, JJ. 19 AIR 2009 SC 1013

6

“there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in section 227 Cr. P.C. can be taken into consideration by the learned magistrate at that stage . . . .”20

Justice Katju took a different view on the issue and opined that in exceptional and

very rare circumstances such material may be produced by the defence and he observed that:

while it is true that ordinarily defence material cannot be looked into by the court while framing of charges . . .there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charge or taking cognizance.21

Katju, J. further observed:

It cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of charges, though it should be done in very rare cases, i.e., where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted . . . in some very rare cases the court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution is totally absurd, preposterous or concocted.22

The judge is not a mere post office to frame the charges at the behest of the

prosecution but has to exercise the judicial mind to the facts of the case in order to determine

whether a case for trial has been made out by the prosecution.23 At the stage of Section 227 of

Cr.P.C. the judge has merely to sift the evidence in order to find out whether or not there is

sufficient ground for proceeding against the accused. The accused if afforded an opportunity

to adduce which is of unassailable nature there should not be any bar to defer such evidence

for another appropriate stage of trial.

The criminals are generally considered lower on the social scale than a non - criminal.

The maintenance of a non - criminal image thus is important to most of the people. The self -

identity of a person may be threatened by use of criminal process. Criminal trial may be

visualised as a ritualistic status degradation ceremony in which public identity of the person

20 Id. At 1015 21 Id. at 1018 22 Ibid. 23 See, P. Vijayan v. State of Kerala AIR 2010 SC 663

7

is lowered on the social scale.24 Crime is not the criminal act of the accused which causes

harm rather it is a label which the criminal justice system pastes on the person. The labeling

theorist of criminology believes that the criminal justice system is dangerous in the sense that

it casts the net of social control too widely. The State intervention is inherently criminogenic

in its ultimate effect. The criminal trial is, in fact, ‘dramatization of evil’25. The process of

tagging, defining, identifying, segregating and describing any individual for special treatment

becomes a way of stimulating, suggesting and evoking the very trait complained of. The trial

makes the person a ‘thing’ but describes him as a ‘being’. The label of “criminal” confers

master status to the person and this master status controls the way the person is identified in

public. After acquiring such master status other status, e.g. son, parent, or worker, are not

considered in public.26 Since the criminal justice system puts label on the criminal thus the

trial should be conducted only when there is sufficient ground to proceed with otherwise trial

may be a futile exercise and may cause undue harassment to the accused beside wastage of

time and human efforts.

The concept of social justice has generally been viewed the proper distribution of

benefits and burdens among the members of the society.27 This understanding of social

justice ignores the relation between the criminal justice system and the criminal. In human

relations the existence of domination and oppression should be regarded as anti thesis of

justice. It is quite possible that there exist certain institutions and procedures which fail to

take care of the criminal. The social justice, in this context, can be better understood if its

meaning is extended to the elimination of institutionalized domination and oppression.28 The

interpretation and understanding or the provisions of law which may provide an opportunity

of domination and exploitation may be suitably modified in order to attain justice.

The view taken by the court that at the time of framing the charge, the trial court

cannot take the material of the defence does not treat the accused and the prosecution with

equality. The prosecution has a better right as it gives a right to submit the records of the case

and relevant documents along with the right of being heard on their submission. The accused,

on the other hand, is given only the right of being heard and not to produce even any

24 See, Vold, George B. Theoretical Criminology, Second Edition, Oxford University Press (1979) pp. 263-264; Williams, Katherine S., A Text Book on Criminology, Third Edition, Universal Law Publishing Co. Pvt. Ltd. (2001) pp. 411-434 25 Tannenbaum, Frank, Crime and the Community, Colombia University Press (1938) 26 Id. 27 Rawls, John, A Theory of Justice, Oxford University Press (1971) 28 Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press (1990)

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unimpeachable and unassailable material before the judges at this stage. Such a situation may

be regarded as in violation of equality. It may also affect the fairness of the trial in the sense

that the prosecution is at higher pedestal in comparison to the defence while fair trial

presumes equal opportunity to all the parties – prosecution, accused, victim and the society.

The interpretation of Section 227 Criminal Procedure Code, 1973 in Debenedra Nath

Padhi case is contrary to the concept of justice as it suggests a procedure which unnecessarily

puts the prosecution, at the stage of discharge, in dominant position and it oppresses the

accused by not permitting him to adduce unassailable and unimpeachable material in his

favour. The opinion of Justice Thomas and Justice Katju is better as the justice can be done to

the accused when the opinion in Satish Mehra and the opinion in Rukmini Narvekar are

preferred over Debendra Nath Padhi case. In case the defence is given, in exceptional case,

an opportunity to adduce unimpeachable and unassailable material at the time of framing the

charge such an interpretation would not only save the time of the court but it would also save

the accused from being harassed unnecessarily and also will be saved from protracted trial

and the label of criminal status attached to him. Moreover, the trial court will exercise, to

some extent, its discretion and it may generate confidence among the judicial officers

involved in dispensation of criminal justice at this level and they will be more responsive to

the needs of the society. The society may get an impression of speedy justice. The number of

pending trials and piling of criminal trials would be reduced considerably. The lifting of such

a barrier allegedly created by Section 227 and 239 of the Criminal Procedure Code, 1973

will, resultantly, pave the path for speedy justice.

1

Significance of Jurisprudential Principles of Draft Proposal Coastal

Regulation Zone (CRZ) 2010 for the Protection and Promotion of Coastal

Ecology and Marine Environment

Jai S. Singh1

I. Introductory Remarks:

The Sun now rose upon the right:

Out of the sea came he,

Still hid in mist, and on the left

Went down into the sea.

And the good south wind still blew behind,

But no sweet bird did follow,

Nor any day for food or play

Came to the mariners’ hollo!

Samuel Taylor Coleridge

Coastal States have a significant role in protecting, preserving and promoting their

coastlines. With unique environmental characteristics, the coastal zone is a meeting point for

land, sea and inland waters. Coastal zones have played important role in the evolution of

culture and civilization. In the human history, human contact developed across seas. After the

Renaissance and Reformation in Europe, it also converted into a battleground for power and

foreign domination. The European countries set up their colonies across the sea including

India.

India has a coastline of about 7,500 kilometres, of which the mainland accounts for

5,400 kms. Lakshadweep coast extends to 132 kms and Andaman and Nicobar Islands have a

coastline of about 1,900 kms. India is one of the leading coastal States in the entire world.

Apart from being rich in minerals, it has potential for exploitation and exploitation of tidal

energy, and ocean thermal energy for the benefit of development. Ecologically important, the

1 LL.M., D.Phil., Associate Professor, Faculty of Law, University of Allahabad, Allahabad, U.P. India. Mobile N. 09451846407. Email: jaishankarsingh08@gmail.com.

2

coastal zone in India is endowed with a very wide range of coastal eco-systems like

mangroves, coral reefs, sea grasses, salt marshes, sand dunes, estuaries and lagoons. The

Government of India is taking positive steps for the preservation, protection and promotion of

coastal ecology.

The Ministry of Environment and Forests, the Central Government vides its

notification number S.O.114 (E), dated the 19th February, 1991,2 declared Coastal Regulation

Zone. It imposed certain restrictions on the setting up and expansion of industries, operations

and processes in the said Zones for its protection.

The Hon’ble Supreme Court in the Order dated 19th April, 1993 in Writ Petition No.

664 of 1993, directed the Central Government and the coastal States that ‘There is 6000 km

long coastline of India. It is the responsibility of coastal States and Union territories in which

these stretches exists to see that both the notifications are compiled with and enforced.

In compliance to the Orders of the Hon’ble Supreme Court, the coastal States and

Union territory, prepared the Coastal Zone Management Plans which were approved with

condition and modifications dated 27th September, 1996.3

The said notification was amended, from time to time, based on recommendations of

various committees, judicial pronouncements, representations from State Governments,

Ministries and Departments of the Central Government, and the general public, consistent

with the basic objective of the said notification.

The Central Government in the Ministry of Environment and Forests issued a draft

notification on the 22nd July, 2008 vide number S.O.1761 (E) under sub-section (1) and

2. DRAFT (To be published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) of dated the- April, 2010,) Government of India, Ministry of Environment and Forests, New Delhi, the...April, 2010. 3 The name of the case is Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281. The case was decided by a three Judges Bench of the Supreme Court consisting of Kuldip Singh, S. Saghir Ahmad, and B.N.Kirpal JJ. in Writ Petition (c) N. 644 of 1993. It was filed under Article 32 of the Constitution and decided on April 18, 1996. However, in the Preamble of the Notification, the order of the date is given 19th February 1993. In this case the Hon’ble Supreme Court observed as follows:

There is 6000 km long coastline of India. It is the responsibility of the coastal States

and Union territories in which these stretches exists to see that both the notifications are compiled with and enforced. Management Plans have to be prepared by the States and approved by the Central Government. If the said plans have been approved, the development can take place only in accordance therewith. Till the preparation and approval of the said plans by virtue of the main notification, no development in the coastal areas within the NDZ can take place. Therefore, it is in the interest of all concerned that the Management Plans are submitted and approved at the earliest.

3

clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of

1986) inviting suggestions and objections from the public likely to be affected thereby.

The Central Government in the Ministry of Environment and Forests (MoEF)

received large number of suggestions and objections on the draft notification which were

examined by an Expert Committee constituted under the Chairmanship of Prof. M.

S.Swaminathan.

The Expert Committee under the Chairmanship of Prof. M. S. Swaminathan after

detailed examination of the comments received on the draft Coastal Management Zone

Notification, 2008 and consultation with the stakeholders submitted the Report titled “Final

Frontier” on the 16th July, 2009. This Report recommended to lead the draft Coastal

Management Zone Notification, 2008 lapse and to strengthen the CRZ Notification, 1991.

The Expert Committee under the Chairmanship of Prof. M. S. Swaminathan, with

experts in the areas of environmental law, marine biodiversity, marine ecology environmental

economics, socio-economic, remote sensing, coastal engineering, urban planning and marine

fisheries noted that, the Indian coast is doubly vulnerable today-

1. It is facing unprecedented pressures because of industrial and urban

development; and

2. It will be threatened by climate change-related devastation –from growing

intensities of cyclonic storms to sea surges and eventual sea level rise.

All this requires increased attention and vigilance for the protection of the coasts and

the people who live there. It is also clear that coastal areas are the habitats of fishing

communities. These communities are in double danger as well – ironically from-

1. Conservation; and

2. Development.

Future policies for coastal area management must reverse these trends and find

approaches to conserve and protect vulnerable ecosystems and secure the livelihoods and

habitats of its people. This is the challenge. Further, the Committee made several

recommendations for strengthening the coastal zone management approach in the country.4

The Central Government, after carefully considering the above said report and all the

recommendations undertook consultations with the fishermen communities, local

4. The Central Government after taking into accent the Report of Prof.M.S. Swaminathan and the report submitted by CEE regarding special consideration to be given to some of the areas in the coastal region in-view of the demographic pressure, geographical and ecological uniqueness.

4

communities and NGOs from August, 2009-March, 2010. These consultations were

organized by Centre of Environmental Education, who submitted the Report of the

consultation process in 25th March, 2010.

The Central Government, taking into account the outcome of the above consultation

process and the recommendations made by Prof. M. S. Swaminathan Committee report dated

16th July, 2009, proposed to make the following proposal under sub-section (1) and clause

(v) of sub section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986),

read with sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in

supersession of the notification of the Government of India in the Ministry of Environment

and Forests, number S.O.114 (E), dated the 19th February, 1991, in so for as it relate to the

conservation and protection of the coastal stretches of the country, in supersession of the

Coastal Regulation Zone Notification, 1991, S.O.No.114 (E), dated 19.2.1991, except as

respects things done or omitted to be done before such supersession.

II. PRINCIPLES LAID DOWN IN INDIAN COUNCIL FOR ENVIRO-LEGAL

ACTION CASE 5:

A. Judgment of the Case

In the leading case of Indian Council for Enviro-Legal Action case6, a three Judges

Bench of the Supreme Court has made beautiful observations regarding the significance of

jurisprudence, rule of law and object and purpose of law.

It was stated that concern for the protection of ecology and for preventing irreversible

ecological damage to the coastal areas of the country had led to the filing of the present

petition under Article 32 of the Constitution of India as public interest litigation.

The petitioner was a registered voluntary organisation working for the case of

environment protection in India. India has a coast line running into 6000 kms. which has

5 . Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281.

6. Ibid. See also Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446: (1996) 3 SCC 212.

5

abundance of natural endowments, geographic attractions and natural beauty. According to

the petitioner, these coastal areas are highly complex and have dynamic ecosystems, sensitive

to development pressures. The stresses and pressure of high population growth, non-

restrained development, lack of adequate infrastructure facilities for the resident population

are stated to be some of the factors responsible for the decline in environmental quality in

these areas. The developmental activities in the coastal areas were stated to cause shor