NUSRL 2015 Vol 2 No 2

THE
NUSRL JOURNAL OF LAW AND POLICY

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Vol. 2 No. 2 NUSRL JLP (2015)
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Dr. Sabari Bandyopadhyay, Dr. Jisu Ketan Patanik
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Mr. Krishna Kumar
GUEST EDITOR
Dr. Rajnish Kumar Singh
Law School, Banaras Hindu University, Varanasi
CONTENTS
The
NUSRL Journal of Law and Policy
Vol. 2, No. 2 July 2015 – December 2015 ISSN 2349-9982
ARTICLES
Approaches of the Supreme Court to Regulate Exercise of Discretionary
Power of the Labour Court/Tribunal to Interfere with the Quantum of
Punishment Imposed by the Management
S. C. Srivastava ................................................................................. 1-40
Legal Transplant and the ‘Dialogue of Deaf’:

Revisiting the Debate between Transferists and Culturalists
Sebghatullah Qazi Zada & Abdul Haseeb Ansari ..................... 41-60
Rethinking the Sexual Politics of “Law” and “Order”

Rachna Chaudhary ......................................................................... 61-74
Protection of Traditional Knowledge through Intellectual Property Rights:

Challenges and Expositions
Neeru Nakra ................................................................................... 75-94
SHORTER ARTICLES
Persons with Print Disability and Copyright Law:
Marrakesh Treaty and Indian Response
Rajnish Kumar Singh .................................................................... 95-104
vi CONTENTS
Maternity benefits, policies and practices in India-

A Critical Assessment
Balwinder Kaur ............................................................................ 105-114
Historical Perspective of Law and Economics

Alik Banerjee & Sanghamitra Acharya ..................................... 115-120
BOOK REVIEWS
S Sivakumar, Press Law and Journalists: Watchdog to Guidedog
(New Delhi: Universal Law Publishing, 2015)
Dr. Rabindra Kr. Pathak ............................................................. 121-124
Rajnish Kumar Singh, Neighbouring Rights under Copyright Law

(Satyam Law International, New Delhi, 2015)
Digvijay Singh ............................................................................. 125-128
ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 1-40
Approaches of the Supreme Court to Regulate

Exercise of Discretionary Power of the
Labour Court/ Tribunal to Interfere with the
Quantum of Punishment Imposed by the
Management
S. C. Srivastava*
Abstract: The biggest challenge for Indian Judiciary is how to provide

uniform norms/guidelines to regulate the exercise of labour tribunal’s power
to interfere in the management’s order of dismissal /discharge against
delinquent workmen. Equally difficult task is who will regulate and how
the conflicting judgments of Supreme Court may be followed and applied
by subordinate courts and tribunals. This paper seeks to examine and
evaluate the decisions of the Supreme Court on exercise of tribunal’s
discretion in respect to quantum of punishment awarded by the management
in disciplinary matters.
Key Words: Discretionary power of Labour Court, Dismissal of workmen,

Doctrine of proportionality, Misconduct by employees.
INTRODUCTION
In day-to-day administration, management is called upon to take bona fide decisions
against erring workmen. It is also called upon to take disciplinary action against a
workman who is found guilty of serious misconduct such as intentional damage to
the property of the concern, abuse and assault of senior officers or other employees,
theft, misappropriation, corruption, sabotage or other serious misconduct and
instigation, abetment or incitement of workers of the concern to participate in the
*
LL.D.(Calcutta), Secretary General, National Labour Law Association, New Delhi; Formerly
Professor, Chairman & Dean, Faculty of Law, Kurukshetra University, Professor, Head & Dean,
Faculty of Law, University of Calabar, Nigeria, Research Professor, Indian Law Institute, New
Delhi, UGC National Fellow & Director, Institute of Industrial Relations & Personnel Management,
New Delhi. Author may be contacted at: [email protected]
2 THE NUSRL JOURNAL OF LAW AND POLICY
aforesaid activities. These activities encourage indiscipline and render day-to-day

running of the concern impossible. In such situation management takes disciplinary
action (including dismissal ) against erring workmen. However decided cases reveals
that in several cases the tribunals/ Courts held that management’s order of dismissal
of the workman are not only mala fide or wrongful but also, disproportionate to the
misconduct committed by them. To meet this situation, the apex court has evolved
various norms to regulate the management’s power to take disciplinary measure
and punishment imposed by it and also the power of tribunal to interfere in cases of
disciplinary measures taken by the management.
The need to empower the Labour Court, Tribunal and National Tribunal was
felt in Indian Iron and Steel Co. Ltd. v. Their Workmen,1 wherein the Supreme
Court while considering the tribunal’s power to interfere with the management’s
decision to dismiss, discharge or terminate the services of a workman, observed that
in cases of dismissal for misconduct the tribunal does not act as court of appeal and
substitute its own judgment for that of the management and that the tribunal will
interfere only when there is want of good faith, victimization, unfair labour practice,
etc. on the part of the management.
Quite apart from the aforesaid decision of apex court the International Labour
Organization, of which India is a founder member, also in its recommendation (No.
119) concerning ‘Termination of employment at the initiative of the employer’ adopted
in June 1963, recommended that a worker aggrieved by the termination of his
employment should be entitled to appeal against the termination order, to neutral
body such as an Arbitrator, a Court, an Arbitration Committee or a similar body and
that the neutral body concerned should be empowered to examine the reasons
given in the termination of employment and the other circumstances relating to the
case and to render a decision on the justification of their termination. The International
Labour Organization has further recommended that the neutral body should be
empowered, if it finds that the termination of employment was unjustified, to order
that the worker concerned, unless reinstated with or without back wages should be
paid adequate compensation or afforded some other relief.
In view of the aforesaid recommendation, it was considered by the government
of India that the tribunals’ power in adjudication proceeding relating to discharge or
dismissal of a workman should not be limited and that the tribunal should have the
power, in cases, wherever necessary, to set aside the order of discharge or dismissal
and direct reinstatement of the workman on such terms and conditions, if any, as it
thinks fit or give such other relief to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the circumstances of the case may
require.
1
(1958)1 LLJ 260
APPROACHES OF THE SUPREME COURT TO REGULATE EXERCISE OF DISCRETIONARY POWER ... 3
Accordingly Section 11-A2 was inserted in the Industrial Disputes Act, 1947.
Thus, while previously the tribunal had no power to interfere with the punishment,
but now under section 11A it is now clothed with such a power.
A survey of decided cases, however, reveals that the tribunal while exercising
its power and reviewing the punishment imposed by the employer has acted arbitrarily
and in whimsical manner and was influenced by humanitarian consideration. Cases
are not lacking where labour courts and Tribunal or National Tribunal have exercised
its discretionary power where a worker has been dismissed or removed from service
after a proper and fair enquiry even in cases of serious misconduct such as assault,
using abusive language against the superiors, violence, sabotage, drunkenness, loss
of confidence, theft, and misappropriation etc. In order to regulate the exercise of
discretionary power of labour tribunals to review the order of dismissal/discharge
and award any lesser punishment the Supreme has evolved various norms. But in
this process conflicting decisions have been given. In such a situation the difficulty
arises as to which of decision of the apex court should be relied upon by the tribunal
if there are conflicting decisions of the Supreme Court. This is so because under
Article 141 of the Constitution the decision of the Supreme Court is binding on all
Courts and tribunals in India..
In the following pages an attempt has been made to examine and evaluate
the decisions of the Supreme Court on exercise of tribunal’s discretion in respect to
quantum of punishment awarded by the management in disciplinary matters.
II. POWERS OF LABOUR COURT, TRIBUNAL AND NATIONAL TRIBUNAL

TO APPROPRIATE RELIEF IN CASES OF DISCHARGE OR DISMISSAL OF
WORKMEN
Section 11-A of the Industrial Disputes Act empowers the labour court, tribunal
and national tribunal to evaluate the severity of misconduct as to assess whether
the punishment imposed by the employer is commensurate with the gravity of the
misconduct. It provides as follows:
Where an industrial dispute relating to the discharge or dismissal of a workman
has been referred to a labour court, tribunal or national tribunal for adjudication and,
2
The Industrial Disputes Act, 1947, Section 11 A provides: Where an industrial dispute relating to
the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or
National Tribunal for adjudication and. In the course of the adjudication proceedings the Labour
Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge
or dismissal was not justified, it may, by its award set aside the order of discharge or dismissal
and direct reinstatement of the workman on such terms and conditions. if any, as it thinks fit, or
give such other relief to the Workman including the award of any lesser punishment in lieu of
discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section. the Labour Court, Tribunal or National
Tribunal, as the case may be, shall rely only on the materials on’ record and shall not take any
fresh evidence in relation to the matter.
in the course of the adjudication proceedings, the labour court, tribunal or national
tribunal, as the case may be, is satisfied that the order of discharge or dismissal was
not justified it may, by its award, set aside the order of discharge or dismissal and
direct reinstatement of the workman on such terms and conditions if any as it thinks fit,
or give such other relief to the workman including the award of any lesser punishment
in lieu of discharge or dismissal as the circumstances of the case may require.
From the above it is evident that under the aforesaid provision even in cases
where the finding of misconduct is proved or established, the tribunal may hold that
the misconduct does not merit punishment by way of discharge or dismissal of the
workmen and may award lesser punishment instead including reinstate The scope
of interference of the Labour Court and Tribunal has been the subject matter of
judicial review by the Supreme Court.
II. PROCEDURE TO BE FOLLOWED BY MANAGEMENT BEFORE

DECIDING THE QUANTUM OF PUNISHMENT
The ambit and scope of section 11-A came up for consideration before the Supreme
Court in Workmen of Firestone Tyre and Rubber Company of India (P) Ltd. v.
Firestone Tyre and Rubber Company of India (P) Ltd.3 The Court laid down the
following principles:
1. The right to take disciplinary action and to decide upon the quantum of
punishment are mainly managerial functions but if a dispute is referred to a
tribunal, the latter has power to see if action of the employer before imposing
the punishment is in accordance with the provisions of the standing orders,
if applicable, and principles of natural justice. Such inquiry should not be an
empty formality.
2. When a proper inquiry has been held by an employee, and the finding of
misconduct is plausible conclusion flowing from the evidence, adduced at
the said inquiry, the tribunal has no jurisdiction to sit in judgment over the
decision of the employer as an appellate body. The interference with the
decision of the employer will be justified only when findings arrived at in
the inquiry are perverse or the management is guilty of victimization, unfair
labour practice or mala fide conduct.
3. Even if no inquiry has been held by an employer or if the inquiry held by him
is found to be defective, the tribunal in order to satisfy itself about the
legality and the validity of the order, is required to give an opportunity to the
employer and employee to adduce evidence before it. In other words it is
open to the employer to adduce evidence for the first time justifying his
action and to adduce evidence contra.
3
(1973)1 LLJ 278; AIR 1973 SC1273
4. The effect of not holding an inquiry is that the tribunal would not only have
to consider whether there was a prima facie case but also the issue about
the merits of the impugned order of dismissal or discharge on the evidence
adduced before it. It has to decide for itself whether the misconduct alleged
is proved. In such cases the point about the exercise of managerial functions
does not arise at all. A case of defective inquiry stands on the same footing
as if no inquiry is held.
5. The tribunal gets jurisdiction to consider the evidence placed before it for
the first time in justification of the action taken only, if no inquiry has been
held or after the inquiry conducted by an employer is found to be defective.
6. It has never been recognized that the tribunal should straightaway, without
anything more, direct reinstatement of a dismissed or discharged employee
once it is found that no domestic inquiry has been held or the said inquiry is
found to be defective.
7. An employer, who wants to avail himself of the opportunity of adducing
evidence for the first time before the tribunal to justify his action, should
ask for it at the appropriate stage. If such an opportunity is asked for, the
tribunal has no power to refuse. The giving of an opportunity to an employer
to adduce evidence for the first time before the tribunal is in the interest of
both the management and the employee and to enable the tribunal itself to
be satisfied about the alleged misconduct. Once the misconduct is proved
either in the inquiry conducted by an employer or by the evidence placed
before a tribunal for the first time, punishment imposed cannot be interfered
with by the tribunal except in cases where the punishment is so harsh as to
suggest victimization.
IV. JUDICIAL NORMS FOR EXERCISE OF TRIBUNAL’S INTERFERENCE IN

QUANTUM OF PUNISHMENT
The Supreme Court ruled that the discretion vested in the labour court under section
11-A is not unlimited.4 Normally they should not interfere with the punishment imposed
by the disciplinary/ appellate authorities but when it shocks the conscience of the
tribunal/Court the relief can be moulded in exceptional cases which should be
supported with cogent reasons.5
Having said so the Supreme Court laid down the following principles to be
applied while exercising discretionary power under section 11-A of the Industrial
Disputes Act,1947 by the Labour Court, Tribunal and National Tribunal:
4
Mahindra & Mahindra v. N.V. Narvavada (2003) 9 SCC 32
5
Dev Singh v. Punjab Transport Development Corporation 2003 LLR 1023
1. The discretion which can be exercised under Section 11-A is available on

existence of certain factors, namely:
i. punishment being disproportionate to the gravity of misconduct so as
to disturb the conscience of the court,
ii. the existence of any mitigating circumstances which require reduction
of the sentence, or
iii. the past conduct of the workman which may persuade the labour court
to reduce the punishment.
In the absence of any of the aforesaid factors, the labour court/ tribunal
cannot by way of sympathy alone exercise power under Section 11-A and
reduce the punishment.6
2. The industrial courts would not sit in appeal over the decision of the employer
unless there exists a statutory provision in this behalf. Although its jurisdiction
is wide, but the same must be applied in terms of the provisions of the
statute and no other.7
3. If the punishment is harsh, albeit a lesser punishment may be imposed, but
such an order cannot be passed on an irrational or extraneous factor and
certainly not on a compassionate ground8.
4. The exercise of discretionary jurisdiction by Labour Court/Tribunal under
Section 11A of the Industrial Disputes Act must be based on sound reasoning
and not in a casual manner,
5. Unless punishment is shockingly disproportionate to the charge which has
been proved, the punishment awarded by the disciplinary authority should
not be interfered with in exercise of power of judicial review9
6. Exercise of power under section 11-A will always have to be made judicially
and judiciously10
7. It is for the disciplinary authority and not for tribunal to decide as to which
punishment should be imposed on delinquent who has admitted his
misconduct11
6
Mahindra & Mahindra v. N.V. Narvavada (2003) 9 SCC 32
7
Bharat Forge Co. v. Uttam Manohar Nakate 2005 LLR 210
8
Devalsab Hussain Mull v. North West Karnataka Road Transport Corporation , Civil Appeal
8487 of 2013 dated September 24, 2013
9
Devender Swamy v. State Road Transport Corporation 2002 Lab IC 2475
10
Supra note 8
11
Stat Bank of India v. Bela Bagchi JT 2005 (8) SC 96
V. DOCTRINE OF PROPORTIONALITY- BASIS FOR INTERFERENCE

The Supreme Court of India has recognized the doctrine of proportionality as one
of the grounds for judicial review.
In Charanjit Lamba v. Commanding Officer12, the Supreme Court held that
the punishment imposed upon the delinquent should be commensurate with the nature
of the misconduct is not only a requirement of fairness, objectivity and non-
discriminatory treatment but the same is recognized as being part of Article 14 of
the Constitution. Referring to scope of judicial review, the Court pointed out that
while judicially reviewing an order of punishment imposed on a delinquent employee,
the writ court would not assume the role of an appellate authority. It would not
impose a lesser punishment. The power of the court or an administrative tribunal is
limited to finding out whether the punishment is so outrageous merely because it
considers the same to be more reasonable than what the disciplinary authority had
imposed. It is only in cases where the punishment is so disproportionate to the
gravity of charge that no reasonable person placed in the position of the disciplinary
authority could have imposed such a punishment that a writ court may step in to
interfere with the same
VI. THE TESTS FOR DETERMINING THE QUESTION OF QUANTUM OF

PUNISHMENT
In Chairman-cum-MD, Coal India Ltd and Another v. Mukluk Kumar
Choudhun 13 the apex court held that one of the tests to be applied while dealing
with the question of quantum of punishment would be: whether any reasonable
employer have imposed such punishment in like circumstances. Having said so the
Court pointed out that, a reasonable employer is expected to take into consideration
(i)measure, (ii)magnitude, (iii) degree of misconduct and; (iv) other relevant
circumstances. But it would excludes irrelevant matters before imposing punishment.
VII. CONFLICTING APPROACHES OF SUPREME COURT

General Principles of Interference by the Tribunal
In Hombe Gowda EDN Trust v. State of Karnataka14 the Supreme Court ruled
that ‘the tribunal would not normally interfere with the quantum of punishment imposed
by the employers unless an appropriate case is made out therefor. The Court cautioned
that tribunal being inferior to this Court, was bound to follow the decision of this
12
(2010) 7 MLJ 367 (SC)
13
(2009) 8 MLJ 460 (SC)
14
2006 LLR 141(SC)
Court The tribunal can neither ignore the ratio laid down by this Court nor refuse to
follow the same.’ The Court added:
Discipline at the workplace in an organization is a sine quo non for the

efficient working of the organization. When an employee breaches such
discipline and the employer terminates his service, it is not open to the
labour court or an industrial tribunal to take the view that the punishment
awarded is shockingly disproportionate to the charge proved..
On the contrary in Management of Hindustan Machine Tools Ltd, Bangalore v.

Mohd. Usman15 the Supreme Court held that even in a case where the labour court
held that the domestic inquiry was conducted properly and without prejudice to the
worker, it can analyse the evidence to decide whether the dismissal of the worker
was justified. It is within the jurisdiction of the labour court to consider the propriety
and justifiability of the punishment in the case and direct reinstatement if found
necessary
It is difficult to reconcile the aforesaid decisions of the apex court on the
exercise of power under section 11-A.
V. CONFLICTING APPROACHES OF SUPREME COURT IN SPECIFIC CASES

A. Authorised Leave
A survey of decided cases reveals that conflicting views have been expressed by
the Supreme Court as to when and in what case of absence on account of
unauthorized leave, the order of dismissal imposed by the management can be
interfered with by the tribunals.
1. General Principle
In Delhi Transport Corporation v. Sardar Singh16, the Delhi Transport Corporation
initiated departmental proceedings against respondents who were conductors on
the ground of unauthorized long absence from duty, negligence of duties and lack of
interest in the employer’s work. Such acts amounted to misconduct under Paras 4
(11) and 19 (h) of the Standing Orders issued under Para 15 (1) of the Delhi Road
Transport Authority (Conditions of Appointment and Service Regulation, 1952) which
were applicable to respondents. After having found the respondents-conductor guilty,
the disciplinary authority imposed punishment of dismissal/removal from service.
Since an industrial dispute was already pending before the industrial tribunal, the
Corporation filed an application for approval of its action before the said tribunal
under Section 33(2) (b) of the Industrial Dispute Act, 1947. The tribunal found that
15
(1997)1 LLN 391(SC)
16
(2004) 7 SCC 574
proper inquiry was not held. It, therefore, granted opportunity to the corporation to
adduce further evidence to justify its action. The Corporation, therefore, led further
evidence. But, the tribunal on consideration of materials brought before it held that
absence from duty without leave amounted to sanction of leave and did not amount
to misconduct. Thus, availing leave without pay also did not amount to misconduct.
In view of this, the tribunal refused to grant approval of the action taken by the
Corporation, mainly on the ground in most cases, the leave was treated without pay
and that being the position it cannot be said that the absence was unauthorized.
Against this order, the Corporation preferred a writ petition before the High Court.
The single judge of the High Court held that the disapproval by the tribunal was not
in order. Thereupon, the respondent’s conductors filed letters patent appeals before
the Delhi High Court. The division bench of the High Court affirmed the findings of
the tribunal and reversed the decision of the single judge. Aggrieved by this order,
the Corporation filed appeal by special leave in the Supreme Court. On these facts,
the Supreme Court ruled:
Mere making of an application after or even before absence from work does
not in any way assist the employee concerned. The requirement is obtaining leave in
advance. In all these cases, the absence was without obtaining leave in advance.
i. When an employee absents himself from duty, even without sanctioned
leave for a very long period, it prima facie shows lack of interest in work.
Para 19(h) of the Standing Orders as quoted above relates to habitual
negligence of duties and lack of interest in the authority’s work. When an
employee absents himself from duty without sanctioned leave, the authority
can, on the basis of the record, come to a conclusion about the employee
being habitually negligent in duties and exhibiting lack of interest in the
employer’s work.
ii. Ample material was produced before the tribunal in each case to show as
to how the employees concerned were remaining absent for long periods
which affects the work of the employer and the employee concerned was
required at least to bring some material on record to show as to how his
absence was on the basis of sanctioned leave and as to how there was no
negligence.
iii. Habitual absence is a factor which establishes lack of interest in work.
There cannot be any sweeping generalization. But at the same time, some
telltale features can be noticed and pressed into service to arrive at
conclusions in the departmental proceedings.
iv. Conclusion regarding negligence and lack of interest can be arrived at by
looking into the period of absence, more particularly, when leave is
unauthorized.
v. Burden is on the employee who claims that there was no negligence and/or
lack of interest to establish it by placing relevant materials.
vi. Clause (ii) of Para 4 of the Standing Orders shows the seriousness attached
to habitual absence. In Clause (i) thereof, there is requirement of prior
permission. Only exception made is in case of sudden illness. There also
conditions are stipulated, non- observance of which renders the absence
unauthorized.
The Court, accordingly allowed these appeals and affirmed the view taken by the
single judge while reversing that of division bench.
In State of Punjab v. Jagir Singh 17, a driver in Punjab Roadways absented
himself from duty without applying for leave. He was asked to report for duty by a
registered letter but despite the same he failed to report for duty. A notice was
therefore published in a newspaper stating the date by which he was required to
resume his duty. When he failed to do so even thereafter, the management terminated
his service on the ground of his being absent from duty. Thereupon, the driver raised
an industrial dispute and the labour court by an award reinstated him with continuity
of service and full back wages. On a writ petition filed by the management, the High
Court held that the workman was entitled to 60 per cent of the back wages.
Aggrieved by this both the state and workman filed special leave to appeal petitions
in the Supreme Court. The Supreme Court held that the finding of the labour
court were incorrect and self-contradictory and it had failed to consider the
conduct of the workman in not joining duty despite having been asked to do so by a
registered letter as well as publication of a notice in the newspapers.
2. Application in Specific Cases

a. Dismissal for a absence due to sufferings from tuberculosis- held Justified
In New India Assurance Co. Ltd. v. Vipin Behari Srivastava18, the respondent-
workman remained absent unauthroisedly for more than 600 days. The management
after holding departmental inquiry removed the workman. Thereupon, the workman
raised an industrial dispute which was referred to the tribunal. The tribunal held that
the respondent was suffering from tuberculosis and had applied for medical leave
but management took no action. It, therefore, granted reinstatement. On a writ
petition, the High Court upheld the order of the tribunal. On appeal, the Supreme
Court noticed that ‘no leave was due and even leave without pay cannot be granted’.
The Court laid down the following principles:
i. Mere sending of an application for grant of leave much after the period of
17
(2004) 8 SCC 1209
18
(2008) 3 SCC 446
leave was over as also the date of resuming duties cannot be said to be a
bona fide act on the part of the workman. The bank, as noticed hereinbefore,
in response to the lawyer’s notice categorically stated that the workman
had been carrying on some business elsewhere.
ii. Only because on a later date an application for grant of medical leave was
filed, the same ipso facto would (not) put an embargo on the exercise of
the jurisdiction of the bank from invoking clause 2 of the bipartite settlement.
The Court accordingly set aside the order of the tribunal and the High Court.
The aforesaid decision requires a careful examination. It is true that ‘mere
sending of application for grant of leave’ cannot amount to grant of leave but in an
exceptional situation where the workman was suffering from tuberculosis and applies
for medical leave, it is difficult to support the view. It is submitted that the above
principle cannot be applied in such cases
b. Dismissal for unauthorized absence to sort out the problem of his

daughter in-laws was held not justified.
In Jagdish Singh v. Punjab Engineering College19 the appellant was working as
a sweeper in Punjab Engineering College. He remained absent unauthorized for 7
days in February 2004 and 9 days in March 2004. The management, after holding an
inquiry, dismissed the workman. Thereupon, he filed a writ petition before the High
Court challenging the order of dismissal. The High Court dismissed the petition.
Aggrieved by the order, the appellant filed an appeal before the Supreme Court. It
was contended by the appellant that the punishment imposed by the disciplinary
authority was disproportionate to the gravity of misconduct, especially in view of the
explanation offered by the appellant for his unauthorized absence for a few days
and lesser punishment would meet the ends of justice. On the other hand, the
respondent submitted that unauthorized absence is a serious misconduct and said
charge having been proved against the employee, the disciplinary authority was
justified in imposing a major penalty of dismissal from service. Dealing with the
case, the Supreme Court observed:
The instant case is not a case of habitual absenteeism. The appellant seems to
have a good track record from the date he joined service as a sweeper. In his long
career of service, he remained absent for 15 days on four occasions in the months
of February and March, 2004. This was primarily to sort out the problem of his
daughter with her in-laws. The filial bondage and emotional attachment might have
come in his way to apply and obtain leave from his employer. The misconduct that
is alleged, in our view, would definitely amount to violation of discipline that is expected
19
(2010) 1 SLR 166
of an employee to maintain in an establishment, but may not fit into the category of
gross violation of discipline. We hasten to add that if it was habitual absenteeism, we
would not have ventured to entertain this appeal.
The Court held that taking the totality of facts and circumstances of the case
and having due regard to unblemished record of the appellant and the reasons for
which he remained absent without obtaining permission; the end of justice would be
met if the punishment imposed by the disciplinary authority is modified to stoppage
of two increments with cumulative effect and further declare that he would not be
entitled to any monetary benefits during the period he was out of service but that
period would be counted only for the purpose of his service benefits. The Court
accordingly allowed the appeal and set aside the order of the disciplinary authority
affirmed by the High Court.
Regional Manager, Bank of Baroda v. Anita Nandrajog20 saw irresponsible
behaviour of the bank employee to remain on unauthorized leave ‘whenever she
liked and for whatever period she liked’. In this case, respondent number 2 remained
absent from duty on two occasions, i.e. from 4 August 1986 to 29 March 1987 and
again from 20 September 1987 to 10 April 1988 (more than 266 days), but the
petitioner bank condoned the aforesaid acts of absence for leaving the country
without permission. She again left for Libya on 22 August 1988 without permission
and without sanctioned leave. She did not resume her duties for more than 150
consecutive days. The petitioner bank therefore invoked the provisions of clause
17(b) of the Fifth Bipartite Settlement and issued notice to her to report for duty
within 30 days, failing which it would be presumed that she had voluntarily retired
from the service of the bank. But she did not report for duty and instead send two
letters to the bank in which she stated that she would be resuming duty in the last
week of August 1989 and in the second letter, she requested for extension of leave
without pay up to April 1990 on the ground of her domestic problems. Despite her
letter, she did not resume duty in the last week of August 1989. Through
communication dated 25 August 1989, the petitioner bank treated the respondent as
having voluntarily terminated her employment, and asked her to approach the authority
concerned for claiming terminal benefits. Aggrieved by this order, the respondent
approached the ministry of labour, Central Government which referred the dispute
to the labour court for adjudication. The tribunal held that the termination order was
illegal and unjustified. Against the order of the tribunal, the bank filed a writ petition
in Allahabad High Court which was dismissed. Thereupon, the bank filed a special
leave petition before the Supreme Court.
20
2009 LLR 1135
The main contention on behalf of the respondent employee before the tribunal
and the high court was that she was neither given any charge-sheet nor was any
inquiry held regarding her misconduct of being absent without leave, and hence the
order dated 25 August 1989 was illegal and against the principles of natural justice.
On the other hand, the contention on behalf of the bank was that no inquiry was
necessary since clause 17(b) of the Fifth Bipartite Settlement dated 10 April 1989
was being invoked. The Supreme Court observed that the management had been
extremely lenient to the respondent by condoning her absence without leave on the
first occasion for a period of about 7 months. ‘However, the respondent thought
that she could do whatever she liked for whatever period she liked.’ She again sent
an application for leave for 60 days which was not sanctioned. However, she remained
absent without leave and kept sending letters for extension of leave although she
was on unauthorized absence.
In the bank’s letter, it was clearly mentioned in clause 4 that the respondent did
not have any leave remaining to her credit yet she had remained on unauthorized
leave for a period of more than 150 days continuously and it appeared she had no
intention of joining duty. She was asked to report for duty within 30 days, failing
which it would be deemed that she had taken voluntary retirement from service. In
reply, she wrote a letter that she will be joining duty in the last week of August 1989
but she wrote another letter for extension of leave till April 1990 on account of
domestic problems. In view of this, the Court remarked that such behavior on the
part of an employee is clearly unfortunate and highly improper.
The Court referred to clause 17(b) of the Bipartite Settlement and observed
that if an employee is absent without leave for more than 150 days and has no more
leave to his/ her credit, then the bank can validly order voluntary cessation of
employment. Further, under clause 17(b), when the management is reasonably
satisfied that the employee has no intention of joining duty, it may call upon the
employee to report for duty within 30 days failing which action can be taken. Such
a notice was given by the bank but the respondent wanted leave till April 1990, i.e.
for another 8 months. The Court found that she had no intention of resuming duty
within 30 days. The Court accordingly held that the action of the bank in terminating
her service on the ground of voluntary cessation of employment was valid. The
appeal was accordingly allowed.
The aforesaid judgment is more in conformity with Syndicate Bank v. General
Secretary, Syndicate Bank Staff Association21 and Aligarh Muslim University v.
Mansoor Ali Khan 22.
21
(2005) 5 SCC 65
22
JT 2000 (7) SC 529
c. Dismissal for unauthorized Absence from duty for six months for
personal reason-not justified
In contrast to the aforesaid decisions, the Supreme Court in Chairman-cum-
Managing Director, Coal India Ltd v. Mukul K. Choudhuri23 took a different
line of approach. Here, the respondent, after expiry of sanctioned leave for 14 days,
did not report for duty and despite reminders, remained absent for 6 months without
any authorization. Thereupon, the management initiated disciplinary inquiry against
him under rule 29 of the Coal India Executives Conduct, Discipline and Appeal
Rules, 1978 for misconduct on his part by (i) absenting himself without leave, (ii)
overstaying the sanctioned leave for more than 4 consecutive days and (iii) desertion
of job and failure to maintain integrity and devotion to duty. During pendency of
inquiry, the respondent sent a letter of resignation which was not accepted by the
management. Accordingly, he joined duty. He also appeared before the inquiry officer
and admitted the charges leveled against him. The inquiry officer held that the
delinquent was guilty of the charges mentioned in the charge-sheet. Upon receipt
of the inquiry report, a second show-cause notice was issued. The delinquent was
asked to show cause as to why the punishment of termination of service be not
awarded to him. A copy of the inquiry report was sent along with the second show-
case notice. Not satisfied with his explanation, he was removed from service with
immediate effect. He then pursued departmental remedy but without any success.
Thereupon, he filed a writ petition with the High Court. The single judge of the High
Court directed the reinstatement of the respondent without back wages but with
continuous service, without any break and without affecting his seniority. On appeal,
the division bench, besides reinstatement, held that he was entitled to back wages
from the year 2000 until reinstatement. Against this order, an appeal was filed before
the Supreme Court. The Court held that where the misconduct of the delinquent
was unauthorized absence from duty for 6 months but upon being charged of such
misconduct, he fairly admitted his guilt and explained the reason for his absence by
stating that he did not have any intention nor desire to disobey the order of higher
authority or violate any of the company’s rules and regulations; but the reason was
purely personal and beyond his control and as a matter of fact, he sent his resignation
which was not accepted. The order of removal cannot be held to be justified, since
no reasonable employer would have imposed extreme punishment of removal in like
circumstances. The Court felt that the punishment is not only unduly harsh but
grossly in excess of the allegations. The Court therefore affirmed the order of
reinstatement but without back wages for the entire period by way of punishment
for the proved misconduct of unauthorized absence for 6 months.
23
2009 III CLR 645
It is difficult to reconcile the aforesaid decision with other decisions of the

Supreme Court discussed above. It is surprising that the Court even did not mention
its earlier decisions.
d. Evolution of the doctrine of Limited Inquiry in case of failure to

resume duties on expiry of leave
In New India Assurance Co. Ltd. v. Vipin Behari Srivastava 24 the Supreme
Court evolved the new concept of limited inquiry in a case of failure of employee to
resume duties after the expiry of sanctioned leave despite repeated reminders. In
such cases no doubt the principles of natural justice are required to be complied
with but the same would not mean that a full-fledged departmental proceeding was
required to be initiated. A limited inquiry as to whether the employee concerned had
sufficient explanation for not reporting for duty after the period of leave had expired
or failure to resume duty when asked to do so would suffice.
3. Abusing and Threatening a Superior Officer

a. Liberal interpretation
In Rama Kant Mishra v. State of UP,25 the workman was charge-sheeted for
abusing an official saying, ‘Are these persons your father? I will make you forget
your high-handedness either here or somewhere else.’ On these facts, the Supreme
Court ruled that the labour court has jurisdiction and power to interfere when it finds
that the order of discharge/dismissal was not justified. The Court directed
reinstatement with back wages but withheld two increments.
In Ved Prakash Gupta v. M/s Delton Cable India Ltd,26 the workman, besides
other charges, was also guilty of abusing in filthy manner/language, namely ‘You
may go to Vijay Kumar or Ram Kumar’. On these facts, the Supreme Court held
that the charges leveled against him were not serious and it was not known how
these charges would result in total loss of confidence of the management. The
Court accordingly directed reinstatement.
In B C Chaturvedi v. Union of India27, the three-judge bench of the Supreme
Court held that under Section 11-A, the High Court’s interference is permissible
only when the punishment/penalty is shockingly disproportionate.
24
Supra note 19
25
2003 LLR 895
26
1982 Lab IC 1790 (SC)
27
1995 (6) SCC 749
b. Strict interpretation
In UP State Road Transport Corporation v. Subhash Chandra Sharma28, the
charge against the respondent was that in a drunken state, he along with the conductor
went to the assistant cashier in the cash room of the appellant and demanded money
from him. When the assistant cashier refused, the respondent abused him and
threatened to assault him. On these facts, the Supreme Court observed that, ‘It was
certainly a serious charge of misconduct against the respondent. In such
circumstances, the labour court was not justified in interfering with the order of
removal of the respondent from service when the charge against him stood proved.
Rather we find that the discretion exercised by the labour court in the circumstances
of the present case was capricious and arbitrary and certainly not justified. It could
not be said that the punishment awarded to the respondent was in any way “shockingly
disproportionate” to the nature of charges proved against him. In our opinion, the
High Court failed to exercise its jurisdiction under Article 226 of the Constitution
and did not correct the erroneous order of the labour court which, if allowed to
stand, would certainly result in miscarriage of justice.’
In Kailash Nath Gupta v. Inquiry Officer (R K Raj), Allahabad Bank29 the
Supreme Court went a step further when it observed that the power of interference
of tribunal with the quantum of punishment awarded by the management is extremely
limited.
In Mahindra & Mahindra Ltd v. N B Naravada30, the respondent workman
used abusive and filthy language against his supervisor. Thereupon, the management,
after holding a domestic inquiry, terminated his service. The labour court came to
the conclusion that under Section 11-A, the punishment was harsh and improper and
deserved to be set aside. It therefore, directed reinstatement with continuity of
service but with 2/3rd of the back wages. On a writ petition, a single judge of the
High Court dismissed the petition. On appeal, the division bench of the High Court
also dismissed the petition. Thereupon, the management filed an appeal before the
Supreme Court. The Supreme Court reversed the judgments of the lower courts
and ruled:
(a) The discretion vested in the labour court under Section 11-A is not unlimited.
(b) The discretion which can be exercised under Section 11-A is available on
existence of certain factors, namely: (i) punishment being disproportionate
to the gravity of misconduct so as to disturb the conscience of the court,
(ii) the existence of any mitigating circumstances which require reduction
of the sentence, or (iii) the past conduct of the workman which may persuade
the labour court to reduce the punishment.
28
1995(6)SCC749
29
Ibid .
30
(2003) 9 SCC 32
(c) In the absence of any such factor, the labour court cannot by way of
sympathy alone exercise power under Section 11-A and reduce the
punishment.
(d) Punishment of dismissal for using abusive language cannot be held to be
disproportionate.
(e) The language used by the workman is such that it cannot be tolerated by
any civilized society. Use of such abusive language against a superior officer,
that too not once but twice, in the presence of subordinates cannot be said
to be indiscipline calling for lesser punishment.
The Court accordingly set aside the order of lower courts and upheld the dismissal
order of the disciplinary authority.
In L K Verma v. HMT Ltd,31 the Supreme Court ruled:
(a) As regards the quantum of punishment, suffice it to say that verbal abuse
has been held to be sufficient for inflicting a punishment of dismissal.
(b) Once the appellant accepted that he made utterances which admittedly
lack civility and he also threatened a superior officer, it was for him to show
that he later on felt remorse. If he was under tension, at a later stage, he
could have at least tendered an apology. Furthermore, witnesses were
examined and the charges were proved.
(c) An order of suspension may be passed by the employer by way of
punishment in terms of conduct rules in exercise of its inherent power in
the sense that he may not take any work from the delinquent officer who
may be paid only the subsistence allowance specified therein.
In Biecco Lawrie Ltd v. State of West Bengal32, the respondent, a mazdoor in the
switch gear works, was charge-sheeted for instigation, insubordination and using of
abusive language against his superiors which was a major misconduct under the
standing orders of the appellant company. The respondent, through a letter, admitted
to all the charges and sought condonation and mercy attributing his acts to his mental
illness. However, his plea was rejected by the company on the ground that he had
been charged on an earlier occasion also on similar misconduct and was given a
chance to make amends. On inquiry, the inquiry officer held that the respondent
was guilty of major misconduct. After consideration of the report of the inquiry
officer, the disciplinary authority dismissed him from service. Thereupon, he raised
an industrial dispute which was referred to the tribunal. The tribunal held that there
was violation of principles of natural justice. It heard the matter afresh on merits.
The tribunal on consideration of the inquiry report and evidence on record affirmed
31
2006 LLR 296 (SC)
32
(2009) 10 SCC 32
the order of the disciplinary authority. Thereupon, the respondent approached the
High Court which set aside the order of the tribunal by holding that the charge of
using abusive language was not specific and was vague. It accordingly remitted the
matter to the tribunal for reconsideration on the basis of existing evidence only with
respect to the charge of disobedience. The decision was affirmed by the division
bench of the High Court. The management then filed an appeal with the Supreme
Court. The Court observed that the general trend of judicial decisions is to minimize
interference when punishment is not harsh for charges that are leveled against a
respondent and in the instant matter, dismissal is definitely not shocking to the
conscience of the Court. It added that the High Court misused the power vested in
it by remanding the matter back to the industrial tribunal for reconsideration when
the charges were found proved. The tribunal also erred by reversing its own decision.
IX. APPLICATION OF PRINCIPLE OF INTERFERENCE IN QUANTUM OF

PUNISHMENT IN OTHER SPECIFIC CASES
A. Non-Issuance of Tickets:
In Devendra Swamy v. State Road Transport Corporation33, the services of a
bus conductor were terminated after departmental inquiry for not issuing tickets to
eight passengers. Earlier, he was found guilty of similar offence in more than 41
cases in which lesser punishments were imposed upon him. Thereupon, an appeal
was filed before the Supreme Court. While dealing with justifiability of termination
of service, the Supreme Court referred to its earlier decision34 wherein it was held
that unless punishment is shockingly disproportionate to the charge which has been
proved, the punishment awarded by the disciplinary authority should not be interfered
with in exercise of power of judicial review. The Supreme Court held that the
corporation was fully justified in awarding the punishment of dismissal looking to the
gravity of the charge of misconduct for which disciplinary proceedings were initiated
and proved as also in the light of previous service record of the appellant.
The Supreme Court in Regional Manager v. Ghanshayam Sharma35 was
invited to assess the quantum of punishment keeping in view the nature and severity
of misconduct. In this case, the respondent employed as a conductor by the Rajasthan
Road Transport Corporation was punished several times for having been charge
sheeted on the ground of not issuing tickets to passengers. In this case, he was again
found carrying 23-1/2 passengers without ticket. An inquiry was conducted and he
33
2002 Lab IC 2475
34
State of Haryana v. Rattan Singh, AIR 1977 SC 1512; U P State Road Transport Corporation v.
Basudeo
Chaudhary, (1997) 11 SCC 370; U P State Road Transport Corporation v. Subhash Chandra
Sharma, 2000) (3) SCC 324
35
(2002) ILLJ 234
was removed from service. On a reference, the labour court invoked its jurisdiction
under section 11-A and held that even though the respondent was guilty of misconduct
he was entitled to reinstatement with continuity of service but without back wages.
On a writ petition, the single judge of the High Court set aside the award. On a
letters patent appeal the division bench reversed the award of the single judge.
Thereupon an appeal was filed before the Supreme Court. The Court relied upon its
earlier decision in Karnataka State Road Transport Corporation v. B S Hullikatti36
and held that in such cases where the bus conductors carry passengers without
ticket or issue tickets at a less rate than the proper rate, the said acts would, inter
alia, amount to either being a case of dishonesty or of gross negligence and such
conductors were not to be retained in service because such inaction or action on the
part of the conductors results in financial loss to the Corporation The Court remarked
that although under Section 11-A, the labour court has jurisdiction and power to
interfere with the quantum of punishment, the discretion has to be used judiciously.
The Court added that if the conductor fails to perform his main duty or function to
issue tickets, collect the fare and deposit the same with the Road Transport Corporation
it will be misplaced sympathy to order his reinstatement instead of dismissal. The
Court accordingly set aside the order of the division bench and restored the order of
the single judge.
In UP State Road Transport Corporation v. Vinod Kumar37, a workman
was found carrying passengers without issuing tickets. The management, after holding
a domestic inquiry, terminated his services. Thereupon, the workman raised an
industrial dispute in which he challenged the conclusion arrived at by the inquiry
officer as also the punishment awarded to him by the disciplinary authority. However,
the labour court held that the charge of misappropriation had not been proved and
thus, punishment of removal from service was harsh. It therefore, held that the
removal be substituted by stoppage of one increment without any cumulative effect
and directed him to be reinstated with full back wages. On a writ petition filed by
the management, the High Court confirmed the order of reinstatement but instead
of full back wages, it ordered 50 per cent of the back wages. In an appeal before the
Supreme Court against this order, the Court held that since the respondent had not
challenged the correctness or the legality of the inquiry conducted, it was not open
to the labour court to go into the findings recorded by the Inquiry officer regarding
the misconduct committed by the workman. The Court observed that it is a well-
settled legal position that punishment of removal/dismissal is the appropriate
punishment for an employee found guilty of misappropriation of funds; and the court
should be reluctant to reduce the punishment on misplaced sympathy for a workman.
36
2001) ILLJ 725
37
2008) 1 SCC 115
The Court also held that there was nothing wrong in the employer losing confidence
or faith in such an employee and awarding punishment of dismissal. The Court
reiterated that there is no place for generosity or misplaced sympathy on the part of
judicial forums and interfering with the quantum of punishment. The Court accordingly
set aside the judgment of the High Court as well as the award of labour court and
restored the order of removal from service ordered by the disciplinary authority.
In Divisional Manager, Rajasthan SRTC v. Kamruddin 38 a conductor
employed by the Rajasthan State Roadways Corporation during his probationary
period of two years was charged for carrying passengers without tickets on not less
than five occasions for which he was given warnings. He was again found guilty of
not issuing tickets to two passengers and carrying large quantities of luggage. The
management, after holding a departmental inquiry, terminated his services. He then
raised an industrial dispute which was referred to the labour court. The court found
the inquiry to be in order but held that the punishment was disproportionate to the
gravity of the misconduct. It accordingly substituted the order of termination to
stoppage of two increments with cumulative effect and ordered his reinstatement
with continuity in service but without back wages. The award of the labour court
was upheld by the High Court. Against this order, a special leave to appeal was filed
before the Supreme Court. Dealing with the case, the Court relied upon its earlier
decision in Karnataka SRTC v. B D Hullikatti39 and Rajasthan SRTC v. Sharma
Ghamshyam 40 and observed that it is now a settled legal position that if the conductor
failed to issue tickets, collect fare and deposit the same with the corporation he
would be considered dishonest or grossly negligent in performing his duty and,
therefore, he was not fit to be retained as a conductor whose acts of omission and
commission were bound to cause financial loss to the corporation. The Court strongly
felt that such a workman should be shown the door. The Court also pointed out that
it would be misplaced sympathy to award him lesser punishment. It therefore, restored
the order of termination of service by the management and set aside the award of
the labour court. The Court remarked that even though the power of the labour
court or industrial tribunal in terms of Section 11-A of the IDA to interfere with the
quantum of punishment cannot be denied, but it is also a well-settled principle of law
that the said power has to be exercised judiciously.
In UP State Road Transport Corporation v. Nanhe Lal Kushwaha41, the
respondent who was employed as a bus conductor by the corporation was charged
for carrying passengers without tickets on six occasions. The management, after
holding a departmental inquiry, removed him from service. He then raised an industrial
38
(2009) 7 SCC 552
39
(2001) 2 SCC 574
40
(2002) 10 SCC 330
41
2010 LLR 230
dispute. The labour court found him guilty on two occasions. It therefore, directed
reinstatement with 75 per cent back wages. Against this order, the management
filed a writ petition before the Allahabad High Court which, without assigning any
cogent reason, modified the award to the extent that no back wages shall be payable
to the workman. Thereupon, the management filed an appeal before the Supreme
Court. The Supreme Court, relying on its earlier decision in UP SRTC v. Hoti Lal42,
observed that the conductor was holding a position of trust and acting in a fiduciary
capacity. The misconduct was serious and could not be dealt with leniently as was
done both by the labour court and the High Court. The Court also deprecated the
practice followed by high courts in disposing of writ petitions without assigning any
cogent reason. It observed that the labour courts should not ordinarily interfere with
the discretion exercised by employers in awarding punishment despite the wide
discretion given to them under Section 11-A of the IDA. The Court observed that it
was not the amount of loss to the corporation which was material for determining
the quantum of punishment. It accordingly set aside the award of the labour court
and the judgment of the High Court and affirmed the order of the management.
In the same year, the above issue was again raised in UPSRTC v. Suresh
Chand Sharma43. In this case, the respondent was a conductor with UP Roadway
Transport Corporation and was found carrying 13 passengers without tickets on 24
May 1987. Again on 10 May 1988, he was found carrying 10 passengers without
tickets. On both occasions, he had recovered the fare from them. The management,
after holding an inquiry, dismissed the respondent. The workman then preferred a
departmental appeal which was rejected. He then raised an industrial dispute which
was referred by the appropriate government to the labour court for adjudication.
The labour court held that the inquiry had been held strictly in accordance with law
and both charges in respect of the two incidents were found duly proved. Therefore,
the employee was not entitled to relief whatsoever. Being aggrieved, the employee
challenged the award by filing a writ petition before the Allahabad High Court. The
High Court allowed the petition partly and directed the reinstatement of the employee
without back wages. Thereupon, the appeal was filed before the Supreme Court.
The Supreme Court found that the High Court had decided the writ petition only on
the ground that the passengers were found without tickets and the cash with the
employee was checked. No other reasoning whatsoever was given by the court.
The Supreme Court referred to the decision in State of Haryana v. Rattan Singh
wherein the Court has categorically held that the only right of a delinquent employee
is that he must be informed as to what are the charges against him and he must be
given full opportunity to defend himself on the said charges. However, the Court
42
(2003) 3 SCC 605
43
2010 (6) SCALE 87
rejected the contention that inquiry report stood vitiated for not recording the statement
of the passengers who were found travelling without tickets.
In view of the above, the Court held that the reasoning given by the High Court
cannot be sustained in the eyes of law. The Court added that the High Court is under
an obligation to give not only the reasons but cogent reasons while reversing the
findings of fact recorded by a domestic tribunal. In case the judgment and order of
the High Court is found not duly supported by reasons, the judgment itself stands
vitiated. The Court also rejected the contention of the employee that for embezzlement
of such a petty amount, punishment of dismissal could not be justified for the reason
that it is not the amount embezzled by a delinquent employee but the intention to
misappropriate public money. In view of the above, the Court set aside the judgment
and order of the High Court.
An examination of the aforesaid decisions reveals that the courts have
consistently held that non- issuance of tickets by conductors should be treated to be
a case of serious misconduct and accordingly upheld the order of the punishment of
dismissal awarded by managements.
Again in Davalsab Husainsab Mulla v. North West Karnataka Road
Transport Corporation,44 the Supreme Court had an opportunity to delineate on
the scope of interference under section 11-A of the Industrial Disputes Act,1947. In
this case the appellant, who was working as a driver in the respondent Corporation,
while travelling in the Corporation bus without ticket was detected by the checking
squad. The checking squad imposed the usual penalty on the appellant. However
enraged by the action of the checking squad, the appellant abused the Checking
Inspector by using filthy language and also threatened to do away with his life. The
appellant also stated to have attempted to assault the Checking Inspector.
Subsequently, he is stated to have approached the coordinator in the Divisional
Office, Belgaum and behaved in an arrogant manner with the said officer. The
Corporation after holding the disciplinary enquiry, where charges leveled against
the appellant was proved, and after giving second show cause notice dismissed
him. There upon the appellant raised an industrial dispute which was referred to the
Labour Court for adjudication. The Labour Court held that the order of dismissal
was fully justified and there was no scope to invoke section 11A of the Industrial
Disputes Act to interfere with the punishment imposed on the appellant. Against
this order the appellant filed a writ petition in the High Court challenging the said
award of the Labour Court. The single judge set aside the award of the Labour
Court, modified the order of dismissal by ordering withholding of two increments
with cumulative effect without consequential benefits and without back wages but
with continuity of service. The Court further directed the corporation to reinstate
44
(2013) 10 SCC 185
the appellant. Against this order the corporation filed a writ appeal before the Division
Bench of the High Court. The Division Bench, however, set aside the order of the
Single Judge and upheld the order of dismissal. Thereupon an appeal was filed
before the Supreme Court. The Supreme Court while upholding the findings of the
division bench held that there were no good grounds to interfere with the impugned
judgment of the Division Bench. The Court observed that the act of misconduct
was proved against the appellant in an enquiry held for that purpose by way of
disciplinary procedure prescribed in the relevant rules, the conclusion of the Labour
Court on this aspect cannot be assailed. It also held that the Labour Court rightly
declined to exercise its discretionary jurisdiction under section 11A of the ID Act to
interfere with the punishment of dismissal imposed on the appellant.
Dealing with the discretionary power of the Labour Court under Section11A
of the Industrial Disputes Act,1947 the apex Court observed that exercise of such
power will always have to be made judicially and judiciously. The court added that
under the said provision, wide powers have been conferred upon the Labour Court
to set aside the punishment of discharge or dismissal and in its place award any
lesser punishment. Therefore, high amount of care and caution should be exercised
by the Labour Court while invoking the said discretionary jurisdiction for replacing
the punishment of discharge or dismissal. Such exercise of discretion will have to
depend upon the facts and circumstances of each case.
The apex court laid down the following norms to be followed before exercising
the discretion under section 11-A of the Industrial Disputes Act,1947:
(a) the Labour Court had to necessarily reach a finding that the order of
discharge or dismissal was not justified.
(b) the satisfaction to be arrived at by the Labour Court while exercising its
discretionary jurisdiction under Section 11A of the Industrial Disputes Act
must be based on sound reasoning.
(c) The exercise of its power to interfere or to exercise its discretion cannot
be arrived at in a casual manner, inasmuch as, on the one hand the
interference with the capital punishment imposed on the workman would
deprive him and his family members of the source of livelihood, while on
the other hand the employer having provided the opportunity of employment
to the concerned workman would be equally entitled to be ensured that the
employee concerned maintains utmost discipline in the establishment and
duly follow the rules and regulations applicable to the establishment.
An examination of the decisions of the apex court have consistently held that non-
issuance of tickets by conductors should be treated to be a case of serious misconduct
and for which it upheld the order of the punishment of dismissal awarded by
management.
B. Misplacement of File
Section 11-A of the Industrial Disputes Act, 1947 empowers the labour court to
evaluate severity of misconduct and to assess whether the punishments imposed by
the employer are commensurate with the gravity of misconduct. The Supreme Court
in Dev Singh v. Punjab Tourism Development Corporation Ltd 45 had an
opportunity to delineate the scope of interference under Section 11-A. In this case
the Punjab Tourism Development Corporation terminated the services of an employee
(who served the corporation for about 20 years with unblemished service) for mere
misplacement of a file. Such misplacement of file was not proved to be a deliberate
act with ulterior consideration, but was at the most an act of negligence. On these
facts, the Supreme Court held that the punishment of dismissal for mere misplacement
of a file without any ulterior motive is too harsh a punishment which is totally
disproportionate to the misconduct alleged and the appellant be imposed a punishment
of withholding of one increment including stoppage in substitution of the punishment
of dismissal awarded by the disciplinary authority. Dealing with the general principle
of interference, the Court ruled that normally courts will not interfere with the
punishment as imparted by the disciplinary/ appellate authorities but when it shocks
the conscience of the Court it can mould the relief in exceptional cases which
should be supported with cogent reasons.
C. Assault of Senior Officer

In India Railways Construction Co. Ltd. v. Ajay Kumar 46, an employee on
probation allegedly assaulted a senior officer along with others and ransacked the
office by creating chaotic conditions. The employer, therefore terminated his service
without holding an inquiry. On these facts, the Supreme Court laid down the following
principles:
(i) It is fairly well settled that the power to dismiss an employee by dispensing
with an inquiry is not to be exercised so as to circumvent the prescribed
rules. The satisfaction as to whether the facts exist to justify dispensing
with inquiry has to be of the disciplinary authority. Where two views are
possible as to whether holding of an inquiry would have been proper or not,
it would not be within the domain of the Court to substitute its view for that
of the disciplinary authority as if the Court is sitting as an appellate authority
over the disciplinary authority. The contemporaneous circumstances can
be duly taken note of in arriving at a decision whether to dispense with an
inquiry or not. What the High Court was required to do was to see whether
45
2003 LLR 1023
46
2003 LLR 337
there was any scope for judicial review of the disciplinary authority’s order
dispensing with inquiry. The focus was required to be on the impracticability
or otherwise of holding the inquiry.
(ii) An employee, even if he claims to be a member of the employees’ union,
has to act with sense of discipline and decorum. Presentation of demands
relating to employees cannot be exhibited by muscle power. It must be
borne in mind that every employee is a part of a functioning system, which
may collapse if its functioning is affected improperly. For smooth functioning,
every employer depends upon a disciplined employees’ force. In the name
of presenting demands they cannot hold the employer to ransom. The
employer has a duty to look into as far as practicable, obviate the genuine
grievances of the employees. The working atmosphere should be cordial,
as that would be in the best interest of the establishment. Unless an
atmosphere of cordiality exists, there is likelihood of inefficient working
and that would not be in the interest of the establishment and would be
rather destructive of common interest of both employer and employees.
(iii) The alleged acts are prima facie acts of misconduct. Therefore, the
employer can legitimately raise a plea of losing confidence in the employee,
warranting his non- continuance in the employment. The time gap is another
significant factor.
The Court accordingly held that compensating in lieu of reinstatement with back
wages would be appropriate relief to the employee, more so when he has lost the
confidence of management.
In Muriadih Colliery BCC Ltd v. Bihar Colliery Kamgar Union 47, the
workman assaulted the senior officials in discharge of their duties. On these facts,
the Supreme Court held that the courts below by condoning an act of physical
violence have undermined the discipline in the organization. The Court accordingly
held that it was not permissible for the industrial tribunal to have exercised its authority
under Section 11-A of the Act to interfere with the punishment of dismissal.
In M P Electricity Board v. Jagdish Chandra Sharma48, the respondent, an
employee working as a muster-roll laborer in the M.P. Electricity Board (appellant)
while in employment allegedly assaulted a superior officer in the presence of other
employee with a tension screw on his back and nose, which resulted in fracture of
the nose and severe bleeding. This incident was followed by unauthorized absence
from work for several days. The management after holding a domestic inquiry
terminated his services. The respondent-employee raised an industrial dispute. The
appropriate government referred the dispute to the labour court for adjudication.
47
(2005) 3 SCC 331
48
(2005) 3 SCC 331
The labour court, even though did not disagree with the finding of the inquiry on the
inflicting of injuries on the superior officer or on the unauthorized absence and the
consequent violations of the service rules, took the view that the punishment of
termination inflicted on the employee was punitive in nature. According to the court,
the employee who had been kept out of service till the date of the decision was
enough punishment in the circumstances. Therefore, exercising its power under
Section 107-A of the Madhya Pradesh Industrial Relations Act, 1906, which
corresponds to Section 11-A of the Industrial Disputes Act, the labour court set
aside the punishment of termination and ordered reinstatement of the employee but
without back wages. Thereupon, the employer filed an appeal before the industrial
court challenging the labour court’s interference with the punishment imposed by
the employer. The employee also filed an appeal challenging the denial of back
wages. The industrial court held that the labour court acted illegally and perversely
in interfering with the punishment awarded on the findings at the inquiry accepted
by the labour court. Therefore, it set aside the order of the labour court and held that
the termination of service as a punishment was justified in the circumstances.
Aggrieved by the decision of the industrial court, the employee filed a writ
petition in the High Court of Madhya Pradesh invoking Articles 226 and 227 of the
Constitution. The High Court held that the charges against the employee stood
proved but since the labour court had decided to award a lesser punishment, the
same should not have been interfered with by the industrial court. Thus, the High
Court set aside the decision of the industrial court and restored the decision of the
labour court. Against this order both the employer and the employee challenged this
decision of the High Court in an appeal by special leave before the Supreme Court.
While the employer has questioned the interference with the punishment awarded,
the employee questioned the denial of back wages to him. The three- judge bench
of the Supreme Court observed:
In the case on hand, the employee had been found guilty of hitting and injuring
his superior officer at the workplace, obviously in the presence of other employees.
This clearly amounted to breach of discipline in the organization. Discipline at the
workplace in an organization like the employer herein, is the sine qua non for the
efficient working of the organization. When an employee breaches such discipline
and the employer terminates his services, it is not open to a labour court or an
industrial tribunal to take the view that the punishment awarded is shockingly
disproportionate to the charge proved. The Court quotes Jack Chan:
‘discipline is a form of civilly responsible behavior which helps maintain

social order and contributes to the preservation, if not advancement, of
collective interests of society at large.’
Obviously, the idea is more relevant in considering the working of an organization

like the employer herein or an industrial undertaking. Obedience to authority in a
workplace is not slavery. It is not volatile of one’s natural rights. It is essential for
the prosperity of the organization as well as that of its employees. When in such
situation, a punishment of termination is awarded for hitting and injuring a superior
officer supervising the work of the employees, with no extenuating circumstance
established, it cannot be said to be not justified. It cannot certainly be termed unduly
harsh or disproportionate. The labour court and the high court in this case totally
misdirected themselves while exercising their jurisdiction. The industrial court made
the correct approach and came to the right conclusion.
The Court therefore, allowed the appeal filed by the employer, set aside the
decision of the High Court, restored the decision of the industrial court and thereby
the punishment awarded by the employer was upheld. The appeal filed by the employee
was also dismissed.
In Hombe Gowda EDN Trust v. State of Karnataka49, the respondent, a
teacher, abused the head of the institution in filthy language and assaulted him with
a chappal. The management, therefore, dismissed the teacher. However, the tribunal
in place of dismissal ordered withholding of three increments. On appeal, the Supreme
Court held that punishment of dismissal from services, cannot be said to be wholly
inadequate punishment. The Court also held that to keep the appellant within the
bounds of well disciplined conduct, a further punishment is also called for and should
be imposed so that our humanistic approach may not induce him to repeat his
intemperate performance. A person, when dismissed from services, is put to great
hardship but that would not mean that a grave misconduct should go unpunished.
Although the doctrine of proportionality may be applicable in such matters, but a
punishment of dismissal from service for such a misconduct cannot be said to be
unheard of. Maintenance of discipline in an institution is equally important. It was
added: ‘This Court has come a long way from its earlier view-points. The recent
trend in the decisions of this Court seek to strike a balance between the earlier
approach of industrial relations wherein only the interest of the workmen was sought
to be protected with the avowed object of fast industrial growth of the country. In
several decisions of this Court, it has been noticed that how discipline at the
workplaces/industrial undertaking received a set-back. In view of the change in
economic policy of the country, it may not now be proper to allow the employees to
break discipline with impunity. Our country is governed by rule of law. All actions,
therefore, must be taken in accordance with law. Law declared by this Court in
terms of Article 141 of the Constitution of India categorically demonstrates that the
tribunal would not normally interfere with the quantum of punishment imposed by
49
2006 LLR 141
the employers unless an appropriate case is made out therefor. The tribunal, being
inferior to this Court, was bound to follow the decisions of this Court which are
applicable to the fact of the present case in question. The tribunal can neither ignore
the ratio laid down by this Court nor refuse to follow the same. The Court accordingly
allowed the appeal.
D. Persistent Refusal to Join Duty at the Transferred Place

In Viveka Nanda Sethi v. Chairman, J&K Bank50, the workman was a cashier-
cum-clerk. He was transferred to Kolkata but he did not join. After show-cause
notice and taking a lenient view, he was transferred to Amritsar, then to Simla and
again to Amritsar. He applied for leave for 28 days which was sanctioned. A further
leave for 9 days was also sanctioned. again applied for 1 month’s leave although he
had only 25 days of accumulated leave and his leave account had already been
debited by 50 days medical leave. Despite the expiry of the period of leave, he did
not join. An explanation was called and he was asked to join duty immediately. A
show-case notice was therefore, served on him, where under he was intimated that
in the event of his failure to resume duty by 15 January 1984, he would be deemed
to have discharged from the service of the bank. In reply, a telegram was received
from another person saying that the said workman was unwell and would not join on
the said date. He again applied for medical leave on 15 February 1984, i.e., one
month after the telegram. The bank dispensed with his services invoking bipartite
settlement. A legal notice was served by the workman on the bank asking for
reinstatement. Conciliation proceedings were initiated and later a reference was
made by the Central Government. The CCIT ordered reinstatement without back
wages. Thereupon, a writ petition was filed by the bank and also by workman for
grant of back wages. Both the single judge and the division bench held that it was
obligatory on the part of the bank to conduct full-fledged departmental proceedings.
However, the High Court dismissed the petition of the workman. Thereupon, he
filed an appeal before the Supreme Court. The Supreme Court ruled:
(a) It may be true that in a case of this nature, the principles of natural justice
were required to be complied with but the same would not mean that full-
fledged departmental proceedings were required to be initiated. A limited
inquiry as to whether the employee concerned had sufficient explanation
for not reporting for duty after the period of leave had expired or failure on
his part on being asked to do so, amount to sufficient compliance with the
requirements of natural justice.
(b) Mere sending of an application for grant of leave much after the period of
leave was over cannot be said to be a bona fide act.
50
2005 LLR 641
(b) The workman’s appeal under 17-B cannot be entertained as he did not file
an affidavit.
The Court accordingly allowed the appeal of the bank that the workman should be
dismissed
In Novartis India Ltd v. State of West Bengal,51 the management dismissed
an employee for not joining the place to which he had been transferred without
holding a domestic inquiry. The court held that the same was hit by principles of
natural justice and such dismissal could only be effected after holding a domestic
inquiry/disciplinary proceedings. However, the Supreme Court ruled:
When an employee does not join at his transferred place, he commits a
misconduct. A disciplinary proceeding was, therefore, required to be initiated. The
order of discharge is not a substitute for an order of punishment. If an employee is
to be dismissed from service on the ground that he had committed a misconduct, he
was entitled to an opportunity of hearing. Had such an opportunity of hearing been
given to him, he could have shown that there were compelling reasons for his not
joining at the transferred place. Even a minor punishment could have been granted.
In Kallakurichi Taluk Cooperative Housing Society Ltd v. M Maria
Soosai52, the respondent joined the post to which he had been transferred but
thereafter, unilaterally stopped coming to work without submitting any leave
application or prior intimation and that too not for a few days but for many months.
Despite the maximum latitude shown to him by allowing him to rejoin duty in the
appellant society, the respondent again failed to report for work. As a result, he was
placed under suspension and a domestic inquiry was conducted in which he was
found guilty of the charges brought against him. However, the High Court ordered
reinstatement which was complied with by the management. On appeal, the Supreme
Court observed:
It is, in fact, surprising as to why a decision was taken to consider his case on
a compassionate basis despite lapses of his own making. The decision of the appellant
society to reappoint respondent 1 on compassionate grounds leading to the order of
the registrar (housing) dated 27 July 1995, permitting the appellant society to reappoint
him was in itself a concession made to respondent 1 which he missed subsequently.
The Court held that in such circumstances, the judgment and order of the
division bench of the High Court cannot be sustained and must necessarily be set
aside. However, having regard to the fact that a domestic inquiry was conducted
against respondent 1 in which he was found guilty, we do not propose to interfere
with that part of the order impugned directing reinstatement, but we are not inclined
to maintain the order of the division bench of the High Court regarding payment of
back wages.
51
(2009) 3 SCC 124
E. Sleeping while on Duty

In Bharat Forge Co. Ltd v. Uttam Manohar Nakat53, the respondent who was
working as helper in the Bharat Forge Co. Ltd, was found sleeping on an iron plate
in the first shift at his work place. The management therefore, initiated disciplinary
proceedings against him in terms of the standing order 24(1) of the model standing
orders framed under the Industrial Employment (Standing Orders) Act, 1946. He
was found guilty in the said domestic inquiry. The management accordingly dismissed
him from service. On a dispute being raised, the labour court held that the punishment
of dismissal imposed upon the employee was harsh and disproportionate and no
reasonable employer could impose such punishment for the proved misconduct. It
therefore directed the management to reinstate the respondent employee on his
original post with continuity of service with 50 per cent of back wages for the period
of his dismissal. Aggrieved and dissatisfied, both parties preferred separate revision
applications before the industrial tribunal. By a common judgment, the revision
application filed by the appellant was allowed and the respondent was dismissed.
The respondent thereupon filed a writ petition before the Bombay High Court which
was dismissed. On a letter patent appeal, the High Court quashed and set aside the
order of the single judge as also of the industrial court and directed the employer to
pay a sum of ‘2,50,000 to the employee within one month from the date of order.
Thereupon, the management filed an appeal before the Supreme Court. The Court
ruled:
It is trite that the labour court or industrial tribunal as the case may be, in terms
of the provisions of the Act must act within the four corners thereof. The Industrial
Court would not sit in an appeal over the decision of the employer unless there
exists a statutory provision in this behalf. Although its jurisdiction is wide, but the
same must be applied in terms of the provisions of the statute and no other. If the
punishment is harsh, albeit, a lesser punishment may be imposed, but such an order
cannot be passed on an irrational or extraneous factor and certainly not on
Compassionate ground. The Court accordingly set aside the order of the lower
court.
F. Gheraoing the Manager and Causing Damage to the Property

In Management of Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor
Sang54, the workmen concerned entered the estate armed with deadly weapons
with a view to gherao the manager and others and in that process, they caused
damage to the property of the estate. They wrongfully confined the manager and
52
2004 LLR 1016
53
2005 LLR 210 (SC)
54
JT 2004 (7) SCC 333; (2004) 8 SCC 200
others from 8.30 pm on 12 October to 3 am the next day. On these facts, the
Supreme Court held that these charges are grave enough to attract the punishment
of dismissal even without the allegation of extortion. The Court added that the fact
that the management entered into a settlement with some of the workmen who
were also found guilty of the charge, would not in any manner reduce the gravity of
the misconduct with regard to the workmen concerned because these workmen did
not agree with the settlement to which others agreed.
G. Fraud and Corruption

In State Bank of India v. Bela Bagchi55, the bank employee was charge-sheeted
for gross misconduct as he had colluded with one of the branch managers and
enabled grant of fictitious loan to Ramkrishna while the real beneficiary was named
Raghav The employee was dismissed after an inquiry. The single judge and division
bench of the High Court ordered reinstatement. The Supreme Court ruled that it is
for the disciplinary authority and not for the court to decide as to which punishment
should be imposed on a delinquent who has admitted his misconduct. The Supreme
Court has held in a series of cases that employees have to exercise a higher degree
of honesty and integrity. The Court also held that the bank employee concerned
with the deposits of customers of the bank cannot be permitted to tinker with the
deposits in any manner.
In Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain 56, the
manager of a bank who had indulged in unauthorized withdrawals, subsequently
returned the amount with interest. Yet, the Supreme Court held that this conduct of
unauthorized withdrawals amounted to a serious misconduct. In General Manager
(P), Punjab and Sind Bank v. Daya Singh57, the respondent who was working as
manager was found on vigilance inspection to have disbursed some 20 loans to the
tune of ‘16.48 lakh to some persons against FDR which were in the names of other
persons. The management, after holding a domestic inquiry, dismissed the respondent.
However, the High Court set aside the order of dismissal and directed reinstatement.
On appeal, the Supreme Court held that there was clear documentary evidence on
record in the handwriting of the respondent which established his role in the withdrawal
of huge amounts for fictitious persons. The ledger entries also showed that whereas
the FDRs were in one name, the withdrawals showed the names of altogether
different persons and they were far in excess of the amounts in FDRs. The respondent
had no explanation and therefore, it had to be held that the respondent had
misappropriated the amount. Dealing with the order of the High Court, the Supreme
Court observed that in spite of a well-reasoned order by the inquiry officer, the High
55
JT 2005 (8) SC 96; (2005) 7 SCC 435
56
(2005) 10 SCC 84
57
2010 LLJ 1029
Court had interfered therein by calling the same as sketchy. The High Court has
completely overlooked the role of the bank manager. In view of this, the Court set
aside the impugned judgment and order passed by the division bench of the High
Court.
Can the dismissal of a bank employee, guilty of dishonesty and misappropriation
be set aside merely because though convicted by the criminal court, he has been
released on Probation of Offenders Act? This issue was raised in Sushil Kumar
Singhal v. The Regional Manager, Punjab National Ban58. In this case, the
appellant who was appointed as a peon was later confirmed on the said post in the
respondent bank. He was handed over ‘5,000 in cash for depositing as dues for the
telephone bill in the post office. However, on his failure to deposit the same, the
bank lodged an FIR under Section 409 of the Indian Penal Code, 1860. The trial
court convicted the appellant. Thereupon, the respondent bank issued a show-cause
notice to the appellant proposing dismissal from service and asked the appellant to
respond within 7 days. The respondent bank, on consideration of explanation
dismissed him from service. The appellant then raised an industrial dispute under
the Industrial Disputes Act, 1947 which was referred to the tribunal. In the meanwhile,
the appeal filed by the appellant against the order of conviction was decided by the
appellate court which maintained the conviction, but granted him the benefit of
probation under the Probation of Offenders Act, 1958 and released the appellant on
probation. The tribunal in the award rejected the claim of the appellant by holding his
dismissal from service to be justified and in accordance with law. Being aggrieved,
the appellant challenged the said award of tribunal by filing a writ petition before the
High Court which was also dismissed. Thereupon, a special leave to appeal was
filed before the Supreme Court. The Court was invited to decide the question whether
the benefit granted to the appellant under the provisions of the Probation of Offenders
Act, 1958 makes him entitled to reinstatement in service. While dealing with the
issue, the Court referred to Section 10(1)(b)(i) of the Act, which reads as under:
No banking company shall employ or continue the employment of any person
who is, or at any time has been, adjudicated insolvent, or had suspended payment or
has compounded with his creditors, or who is, or has been, convicted by a criminal
court of an offence involving moral turpitude.
Moral turpitude means anything contrary to honesty, modesty or good morals.
It means vileness and depravity. The Court added that the conviction of a person in
a crime involving moral turpitude impeaches his credibility and he has been found to
have indulged in shameful, wicked and base activities. The Court also observed that
the embezzlement of ‘5,000 by the appellant for which he had been convicted was
an offence involving moral turpitude. The statutory provisions of the Act, 1949,
58
2010 LLJ 1025
provide that the management shall not permit any person convicted for an offence
involving moral turpitude to continue in employment.
The Court also referred to the decision in Manish Goel v. Rohini Goel59,
wherein it held that no court is competent to issue a direction contrary to law nor can
it direct an authority to act in contravention of the statutory provisions. Indeed, the
courts are meant to enforce the rule of law and not to pass orders or directions
which are contrary to what has been injected by law. In view of this, the Court held
that once a criminal court grants a delinquent employee the benefit of Probation of
Offenders Act, 1958, its order does not have any bearing so far as the service of
such employee is concerned. The word, ‘disqualification’ on Section 12 of the
Probation of Offenders Act provides that such a person shall not stand disqualified
for the purpose of other Acts like Representation of People Act, 1950, etc. The
Court added that conviction in a criminal case is one part of the case and release on
probation is another. Therefore, grant of benefit of the provision of the Act only
enables the delinquent not to undergo the sentence on showing his good conduct
during the period of probation. In case, after being released, the delinquent commits
another offence, benefit of the Probation of Offenders Act, 1958 gets terminated
and the delinquent can be made liable to undergo the sentence. Therefore, in case
of an employee who stands convicted for an offence involving moral turpitude, it is
his misconduct that leads to his dismissal. The Court accordingly dismissed the
appeal.
In PSEB v. Leela Singh60, the respondent was appointed as a lineman in Punjab
Electricity Board on the basis of the purported experience certificate produced by
him. However, in a vigilance inquiry, the charge against the respondent was that he
had committed fraud in obtaining the appointment by production of a forged
experience certificate. On the direction of the appellant board, his services were
terminated without holding a domestic inquiry. A question arose whether in these
circumstances, the appellant board could terminate the services of the respondent,
the Supreme Court held that the said charge was required to be proved in a duly
constituted departmental proceeding. The services could not have been directed to
be terminated relying on and/or on the basis of the decision of the board. The Court,
therefore, directed the appellant board to initiate departmental proceedings against
the respondent.
H. Corruption
In Municipal Committee, Bahadurgarh v. Krishnan Bihari61, the Supreme Court
held that in cases involving corruption, there cannot be any other punishment except
59
AIR 2010 SC 1099; JT 2010 (3) SC 189
60
2007 LLR 590 (SC)
61
AIR 1996 SC 1249
dismissal. It felt that any sympathy shown in such cases is totally uncalled for and
opposed to public interest. It also held that the amount misappropriated may be
small or large but it is the act of misappropriation that is relevant.
In Prabhulingappa H M Munichendragowda v. Divisional Controller,
KSRTC, Kolar62, it was held that the discretion which can be exercised under
Section 11A is available only on the existence of certain factors like punishment
being disproportionate to the gravity of misconduct so as to disturb the conscience
of the court. However, such discretion cannot be exercised by the labour court
under Section 11A where appointment was obtained on the basis of false certificate
by playing a fraud.
I. Theft
In Depot Manager, Andhra Pradesh State Road Transport Corporation v.
Raghuda Siva Sankar Prasad63, the respondent was charged for committing a
theft of fuel injection pump. He was also involved in stealing an alternator bearing
while working in the night shift. The management, after holding a domestic inquiry,
removed the respondent from the corporation. Earlier, a criminal case was also
initiated against him. The criminal court acquitted the respondent of the charges
that were leveled against him. Aggrieved by the order of his removal, the respondent
raised an industrial dispute. The labour court held that the charges of respondent
being involved in a case of theft of the property belonging to the corporation were
justified under the factual circumstances of the case. Aggrieved by the award of
the labour court, the respondent preferred a writ petition before the Andhra Pradesh
High Court. The single judge of the High Court held that the charges of theft were
correctly proved against the respondent. It however, came to the conclusion that
punishment of removal was not in consonance with the gravity of the charges proved
against him. It therefore, set aside the order of removal and directed reinstatement
of the respondent with continuity of service but without back wages.
On appeal, the Supreme Court observed that when the delinquent employee
admitted his guilt before the inquiry officer that he had handed over the alternator
from the pan shop to the police authorities and further deposed that he had handed
over the stolen property and requested the labour court to excuse him since it was
his first offence. The tribunal rightly set aside the request by taking into consideration
the inquiry report and other evidence. The Court also held that it is also not open to
the tribunals and courts to substitute their subjective opinion in place of the one
arrived at by the domestic inquiry. In the instant case, the opinion arrived at by the
corporation was rightly accepted by the tribunal but not by the court. The Court
therefore, held that the order of reinstatement passed by the High Court is contrary
62
2012 Lab. IC 221
63
2007 LLR 113
to the law on the basis of a catena of decisions in this Court. In such cases, there is
no place for generosity or sympathy on the part of the judicial forums for interfering
with the quantum of punishment of removal which cannot be justified.
In Workmen v. Balmadies Estates64, it was alleged that two employees had
stolen large quantities of chemicals from the storeroom during the specified period.
The management, after holding an inquiry, dismissed the concerned workmen from
service. Thereupon, they raised an industrial dispute which was referred to the
labour court. The labour court held that there was no direct evidence to show that
they had committed theft. It accordingly directed reinstatement. On a writ petition,
the single judge held that appreciation of evident by the labour court was perverse
and its interference with the order of termination could not be supported in law. The
writ appeal was also dismissed. Against this order, the workmen filed special leave
petition before the Supreme Court. The Supreme Court observed that it is well
settled that in view of wide powers of the labour court under Section 11A, it can, in
an appropriate case, reconsider the evidence which has been considered by the
domestic tribunal and on such reconsideration, arrive at a conclusion different from
the one arrived at by the domestic tribunal. The Court however, made it clear that
the assessment of evidence in a domestic inquiry was not required to be made by
applying the same yardstick as a civil court could do when a lis is brought before it.
Further, the Evidence Act, 1872 is not applicable to the proceedings so far as domestic
inquiries are concerned, though principles of fairness can apply. It also observed
that it is established that in a domestic inquiry, guilt may not be established beyond
reasonable doubt and the proof of misconduct could be sufficient. In a domestic
inquiry, all materials which are logically probative including hearsay evidence can be
acted upon, provided it has reasonable nexus and credibility. Even confessional and
circumstantial evidence, despite lack of any direct evidence, was sufficient to hold
the delinquent guilty of misconduct and to justify the order of termination that had
been passed. The order of the High Court was upheld and the order of the labour
court was set aside.
J. Negligence
In Subhash v. Divisional Controller, Maharashtra SRTC 65, the appellant was
employed as a driver in 1980 with the respondent corporation. He was made
permanent in 1985. However, while driving the bus on the fateful day, it ramped on
the railing of a bridge due to his rash and negligent driving resulting in damage to the
bus. The management, after holding an inquiry, held that charges were proved against
the appellant and accordingly, dismissed him from service. The appellant challenged
the order of dismissal before the appellate authority. The first appellate authority set
64
2008) 1 SCC 115
65
(2009) 9 SCC 344
aside the order and directed that he be appointed afresh without any monetary
benefit for past service. Thereupon, he joined duty reserving his right to challenge
the order of denying him reinstatement with continuity of service and back wages.
He then filed a complaint under Section 28 read with items 5 and 9 of the schedule
IV of the Maharashtra Recognition of Trade Union and Prevention Act, 1971 before
the industrial tribunal, Aurangabad, which was dismissed. A writ petition filed against
the order was also dismissed. Thereupon, he filed a special leave to appeal before
the Supreme Court. The Supreme Court observed that there was negligence on the
part of the appellant in driving the bus on that fateful day and as a result of which,
the bus ramped on the railing of a bridge resulting in damage to the bus. This act no
doubt was a misconduct. But taking into account the fact that during his service
tenure of 21 years, he had been punished, twice the Court set aside the order of
dismissal and ordered that fresh appointment be given to the appellant but without
any benefit of past service. The Court, after looking into all the relevant aspects,
thought it fit in the interest of doing complete justice that the order of the appellate
authority be modified by ordering his reinstatement with continuity of service but
without back wages. The Court felt that in the interest of justice and fair play, denial
of back wages for the entire period from the date of dismissal until his rejoining
duties would be an appropriate punishment. The appeal of the appellant was
accordingly allowed in part to the extent stated above.
X. POWERS OF HIGH COURTS UNDER ARTICLE 226

The high courts, in exercise of writ jurisdiction, can exercise similar power and
discretion as is exercised by the labour court under Section 11A66. However, they
cannot interfere with award of labour court and quantum of punishment if the labour
court has exercised its discretion judicially. Decision of the management in matter of
punishment could be interfered with by labour court if it is satisfied that the punishment
imposed by the management is highly disproportionate with the degree of guilt of the
workman concerned67
XI. CONCLUSIONS AND RECOMMENDATIONS

1. A survey of decided cases reveals that prior to twenty first century the
Supreme Court even in cases of serious misconduct tried to protect the
interest of workmen may be because of the superior bargaining position of
employer and generally did not interfere in the exercise of discretion of
Labour Court/Tribunal in awarding lesser punishment in lieu of dismissal.
But since the beginning of the present century generally the Supreme Court
66
Oriental Containers Ltd v. Engineering Workers’ Association 1996 LLR 739
67
Essorpe Mills (P) Ltd v. Labour Court 1999 LLR 89
have tried to strike a balance between the earlier approach of industrial

relations, wherein according to it, only the interest of the workmen was
sought to be protected but now in view of the change in economic policy of
the country, it may not now be proper to allow the employees to break
discipline with impunity. The Court deprecated this attitude of some of the
tribunals which while exercising its discretion under section 11-A normally
interfere with the quantum of punishment imposed by the employers ignoring
the decision of Supreme Court. It also reminded them that they are governed
by rule of law and all actions, therefore, must be taken in accordance with
law declared by the Supreme Court in terms of Article 141 of the Constitution
of India, and as such the tribunal would not normally interfere with the
quantum of punishment imposed by the employers unless an appropriate
case is made out therefore. The Court warned that the tribunal can neither
ignore the ratio laid down by the Supreme Court nor refuse to follow the
same.
2. A survey of decided cases also reveals in recent years the apex court has
taken serious view about the undue interference of tribunal where a
workman has been dismissed or discharged from service after a proper
and fair enquiry even in cases of serious misconduct and granted
reinstatement. It has deprecated this tendency and noticed its effect on
industrial discipline and work culture. The court has ruled that before
exercising the said discretion, the Labour Court had to necessarily reach a
finding that the order of discharge or dismissal was not justified. Therefore,
the satisfaction to be arrived at by the Labour Court /Industrial Tribunal
while exercising its discretionary jurisdiction under section 11A of the
Industrial Disputes Act,1947 must be based on sound reasoning and cannot
be arrived at in a casual manner, inasmuch as, on the one hand the
interference with the capital punishment imposed on the workman would
deprive him and his family members of the source of livelihood, while on
the other hand the employer having provided the opportunity of employment
to the concerned workman would be equally entitled to be ensured that the
employee concerned maintains utmost discipline in the establishment and
duly complies with the rules and regulations applicable to the establishment
The court ruled that the Labour Court/Tribunal should not interfere with
the quantum of punishment awarded by the management after the charges
of misconduct are proved against employees. However cases are not
lacking where labour courts/Tribunals have exercised its discretionary
power where a workman has been dismissed or removed from service
after a proper and fair enquiry even in cases of serious misconduct such as
assault, using abusive language against the superiors, violence, sabotage,
drunkenness, loss of confidence, theft, and misappropriation etc. This has

brought uncertainty and confusion. Thus there is a need to amend section
11-A.
3. In Hombe Gowda EDN Trust v. State of Karnataka68 The Supreme Court
ruled that when an employee breaches the discipline and the employer
terminates his service, it is not open to the labour court or an industrial
tribunal to take the view that the punishment awarded is shockingly
disproportionate to the charge proved. On the contrary in Management of
Hindustan Machine Tools Ltd, Bangalore v. Mohd. Usman 69 the
Supreme Court held that even in a case where the labour court held that
the domestic inquiry was conducted properly and without prejudice to the
worker, it can analyse the evidence to decide whether the dismissal of the
worker was justified. It is within the jurisdiction of the labour court to consider
the propriety and justifiability of the punishment in the case and direct
reinstatement if found necessary.
4. A survey of decided cases reveals that the Supreme Court have given
conflicting decisions as to when for absence on account of unauthorized
leave. the order of dismissal imposed by the management cannot be
interfered with by the tribunals. Thus in New India Assurance Co. Ltd. v.
Vipin Bihari 70the order of dismissal passed by the management against a
workman who unautorisedly absented himself from duty was upheld by
the Supreme Court but in Jagdish Singh v. Punjab Engineering College71
where a workman who absented himself from duty without sanctioned
leave for a long period to sort out the domestic problems and in Chairman
–cum –Managing Director v. Mukul Choudhary72 where the employee
without sanctioned leave absented himself for duty for over six months the
Supreme Court held that the order of dismissal imposed by the management
was not only duly harsh but grossly in excess of the allegationsand therefore
set aside the order of dismissal of the management. Whatever may the
justification of such divergent order of the apex court there is uncertainty
about law and frustration in the society about the law laid down by the
Supreme Court particularly when the law laid by the Supreme Court is
binding upon all subordinate courts, but the fact remains that we cannot do
without law. It is now for the apex Court to decide as to what should be
done in such a situation.
68
2000 LLR 141
69
(1997) 1 LLN 391(SC)
70
(2008) 3 SCC 446
71
(2010) 1 SLR 166
72
2009 III CLR 645
5. The Supreme Court is also divided on the issue as to whether the tribunal
should interfere in the decision of management to terminate the services of
workman who used abusive or filthy language against superior officer and
award lesser punishment in lieu of dismissal. Thus in Rama Kant Mishra
v. State of UP,73 the Supreme Court upheld the order of tribunal directing
reinstatement with back wages but withheld two increments. Likewise in
Ved Prakash Gupta v. M/s Delton Cable India Ltd, 74 the workman,
besides other charges, was also guilty of abusing in filthy manner/language
the Supreme Court upheld the order of reinstatement. But in Mahindra &
Mahindra Ltd v. N B Naravada75, and L K Verma v. HMT Ltd,76 where
the respondent workman used abusive and filthy language against his
supervisor and for which he was dismissed. The Supreme Court upheld
the order of dismissal passed by management and set aside the order of
reinstatement passed by tribunal and High Court. Mahindra & Mahindra
Ltd v. N B Naravada77 also raises the issue whether it is necessary that to
sustain the order of dismissal the delinquent workman must have abused
more than once. Be that as it may it makes the law fluid and unsettled and
thereby raises a wider issue as to which decision the tribunals and High
Court would follow because the law laid down by the Supreme Court is the
law of the land and is binding on all subordinate courts and tribunals in
India under Art.141 of the Constitution.
6. Dealing with the discretionary power of the Labour Court under Section11A
of the Industrial Disputes Act,1947 the apex Court observed that exercise
of such power will always have to be made judicially and judiciously. The
court cautioned that under the said provision, wide powers have been
conferred upon the Labour Court to set aside the punishment of discharge
or dismissal and in its place award any lesser punishment. Therefore, it
directed that high amount of care and caution should be exercised by the
Labour Court while invoking the said discretionary jurisdiction for replacing
the punishment of discharge or dismissal. Such exercise of discretion will
have to depend upon the facts and circumstances of each case.
7. In cases of negligence the Supreme Court appears to have adopted
humanitarian approach when it held that considering the past record of the
driver and the fact that no passenger was injured in the accident the order
of dismissal was not proper, a tendency which has been deprecated in
some other case.
73
2003 LLR 895
74
1982 Lab IC 1790 (SC)
75
(2003) 9 SCC 32
76
2006 LLR 296 (SC)
77
(2003) 9 SCC 32
RECOMMENDATION
In order to bring uniformity it is suggested that a proviso be added in section 11A of
the Industrial Disputes Act,1947 to the effect that where a worker has been dismissed
or discharged from service after a fair enquiry on charges of serious misconduct
such as assault, violence, sabotage, drunkenness, theft, misappropriation, fraud,
corruption, embezzlement, sleeping on duty in case of security personnel and watch
and ward staff and other grave charges while on duty and if the labour court/
tribunal comes to the conclusion that the charges have been proved, then the Labour
Court, Tribunal and National Tribunal will have no power to order reinstatement in
lieu of dismissal/discharge of the delinquent worker.
ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 41-60
Legal Transplant and the ‘Dialogue of Deaf’:

Revisiting the Debate between Transferists
and Culturalists
Sebghatullah Qazi Zada *
Abdul Haseeb Ansari §
Abstract: In comparative law, legal transplant has been a subject matter

of great attention and concern leading to discourse between two factions
of legal ideologists. The debate revolved between Transferists and
Culturalists, which is popularly known as “dialogue of deaf”. On one
hand, Transferists argue that in almost all countries very small portion of
law is original and in order to have legal change in the society, borrowing
of law from other countries is a must. Legal transplant has been perceived
by the comparative law scholars as the most prolific tool for legal
development. Watson asserts that the moving of rule or a system of law
from one country to another has been shown to be the most fertile source
of legal development since most changes in most systems are the result of
borrowing of law. On the other hand, Culturalists do not see any link
between law and the society and perceive it as two separate ideas,
independent of each other. Globalization is perceived as the main factor
for the growth of legal transplants in the world. The possibility on the
transplantability of the law, where and why it has been transplanted, and
its successes and failures have been subject matter to lengthy discussions
among the comparative law lawyers. In this paper, the authors analyze the
Cultrulists’ and Transferists’ point of views on legal transplant and determine
the possible degree of transplantability of laws. For this, the paper looks
into the positions of transplantability of laws in some selected countries
such as Turkey, Tunisia and Malaysia, Pakistan. In case of zero transplants,
the paper examines the reasons behind the failure of legal transplant; and
if there were some successes, the paper explores the reasons behind that.
The problem with the legal transplant is that in vast majority of cases, the
*
Ph.D. Scholar, AIKOL, IIUM, Malaysia. Author may be contacted at: [email protected]
§
(Corresponding Author) Professor, AIKOL, IIUM, Malaysia. Author may be contacted at:
[email protected]
transplantability took place because of colonization without any regard to

social, political, historical and religious values in colonized countries. It is
because of this reason that many countries, in order to make law suited to
their people, are going back to formulating laws distinct from the laws
imposed by colonial masters.
Key Words: Comparative law, legal transplant, dialogue of deaf,

transferists, culturalists, legal development, globalization.
I. INTRODUCTION
“At all stages of comparative research (data acquisition, analysis and interpretation
of the data, and actual in-depth comparison and eventual evaluation), the real
problems are the lack of full knowledge and understanding of foreign legal rules
and cultures. They (comparatists) must know something about the historical, social,
economic, political, cultural and psychological context which has made a rule or
proposition what it is. We must look not only at rules but at legal cultures, traditions,
ideals, ideologies, identities, and entire legal discourses.”1
In comparative law, legal transplant has been a subject matter of great concerns
and endless discussions. Culturalists argue that to a large extent the successes and
failures of legal transplant are contingent upon firstly where it has originated from
and secondly where it is going to be implemented. Conversely, Transferists draw a
line between law and culture and see them both as autonomous and believe that a
good law is always exchangeable irrespective of differences in cultures.2
An explanatory definition is therefore needed to describe the development of
legal transplant. For this purpose, Watson described legal transplants as “the moving
of a rule or a system of law from one country to another, of from one people to
another”.3
‘Rules not just statutory rules institutions, legal concepts and structures that
are borrowed, not the spirit of the legal system’4are considered as objects of legal
transplant for Watson. Transferists see no relationship between law and society
and call it as fallacy.5Therefore, they say that changing the law in a society is
1
Anne Peters and Heiner Schwenke, “Comparative Law beyond Post-Modernism,” 49(4)
International and Comparative Law Quarterly, 2000, at 832
2
Nicholas H.D. Foster, “Transmigration and Transferability of Commercial Law in a Globalised
World,” 2002
3
Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia
Press, 1974) at 21
4
Alan Watson and Ius Commune, Legal Transplants and European Private Law , Vol. 4 (Metro
Maastricht, 2000)
5
Id., at 108
completely independent of historical, cultural and social substratum and it is rather

rule’s function extracted from different legal systems. Clearly, Watson believes on
the simplicity and easiness of legal rule’s transplantability.6 He further claims: “it
would be a relatively easy task to frame a single basic code of private law to
operate throughout the whole of the western world.”7In addition to that, the main
concern of comparatists should only be “the existence of similar rules’ and ‘not
with how they operate within society.”8
Former Scottish Law Commissioner quote is worth-mentioning here. He
asserted that:
“Account has necessarily to be taken of English solutions even if these are

eventually rejected as unsuitable for reception into Scots law. Indeed in
many contexts English solutions have to be studied to identify fundamental
differences from Scots law cloaked by superficial similarity. Endeavors to
achieve unified solutions in the field of Contract law have in particular
revealed that what has been assumed to be common ground was approached
by members of the Scottish and English Contracts Teams through
conceptually opposed habits of thought. Whereas English comparative
research relied particularly on American and Commonwealth sources, the
background of some of the Scottish proposals derived from French, Greek,
Italian and Netherlands sources - and from the Ethiopian Civil Code, which
was, of course, drafted by a distinguished French comparative lawyer.
Now this, to me, is rather too academic. If the rules of contract law of the
two countries are already similar (as they are) it should be no obstacle to
their unification or harmonisation that the legal principles involved come
ultimately from different sources, or that the habits of thought of the
commission teams are rather different. It is scholarly law reformers who
are deeply troubled by historical factors and habits of thought. Commercial
lawyers and businessmen in Scotland and England do not in general perceive
differences in habits of thought, but only - and often with irritation-
differences in rules.”9
II. THEORIES OF LEGAL TRANSPLANT

Whether is it possible for law to be transplanted, why it is transplanted, where it has
been transplanted and the success and failure of this transplantation has been a
6
Id., at 95
7
Id., pp.100-101
8
Id., at 96
9
Id., pp.96-97 [emphasis original]
subject of constant debate since 1700. It has been claimed by Alan Watson that
Code of Hammurabi in the 7th century is the first recorded legal transplant.10
The approaches to the issue of legal transplant has revolved around two
contradictory theories of culturalist and transferist theory11 a “dialogue of the
deaf,”12and it has provided a useful platform for the study of legal transplant.13
Watson is the one championing for notion of Transferist approach as opposed
to its Culturalist counterparts; he purports that law and society are independent of
each other and are separate notions. Watson asserts that if lawmakers happen to
perceive other laws to be good, they would transplant or import it into their own
system.14 He maintains that legal rules borrowing may successfully be done even
though there are big differences in political, social, and economic circumstances
and gives the Reception of Roman law in Western Europe as an example.15Watson
has been subject to William Ewald’s criticism by saying that Watson has been unable
to “provide an adequate foundation for a full-blown theory of law and society”;16
nonetheless, sums up that “even the weak versions of Watson’s theses are adequate
to scupper the traditional mirror culturalist theories that have so dominated modern
legal thought”.17
Therefore, Transferists18claim that for a legal change borrowing other laws
are necessary and very nominal parts in law remains original. Watson follows them
by saying that “the moving of a rule or a system of law from one country to another
has been shown to be the most fertile source of legal development since most
changes in most systems are the result of borrowing.”19
Transferists perceive the legal history as a history that is dependent on legal
borrowings. For instance, Sacco sees the imitation and borrowing as a major legal
change and believes that very rarely new rules and institution will emerge.20
10
Watson Alan, Supra note 3 pp.22–24
11
Foster, “Transmigration and Transferability of Commercial Law in a Globalised World” Supra
note 2.
12
Nicholas H.D. Foster, “Company Law Theory in Comparative Perspective: England and France,”
The American Journal of Comparative Law, 2000, pp.573–621
13
Richard G. Small, “Towards a Theory of Contextual Transplants”, 19 Emory Int’l L. Rev., 2005, at
1431
14
Alan Watson, “Comparative Law and Legal Change”, 37(2) The Cambridge Law Journal, 1978,
pp.313-36
15
Alan Watson, “Legal Transplants and Law Reform”, 92 Law Quarterly Review, 1976, pp.82–83
16
William Ewald, “Comparative Jurisprudence (II): The Logic of Legal Transplants”, The American
Journal of Comparative Law , 1995, pp.489–510. See also, William Ewald, “Comparative
Jurisprudence (I): What Was It Like to Try a Rat?”, University of Pennsylvania Law Review, 1995,
pp.1889–2149
17
Ewald, Supra note 16 at 508
18
Watson, Legal Transplants: An Approach to Comparative Law (Sccotish Academy Press, 1974)
19
Watson, Supra note 15
20
Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law (installment II of II)”,
The American Journal of Comparative Law, 1991, pp.343–401
Moreover, for Watson, “legal rules may be successfully borrowed where the relevant
social, economic, geographical and political circumstances of the recipient are very
different from those of the donor system.”21
On the other hand, Montesquieu championed the Culturalism and maintains
that laws cannot overpass the limits of the different cultures. He propounded that
laws are deeply rooted and embedded in the spirit of nations and cannot be separated
from their political, customary and geographic context. He believes that manners
and customs must evolve and cannot be changed and that transfer would constitute
a “grand hazard”.22
Culturalists claim that laws are ‘felt needs’ of the society and there is a low
probability that it will induce the same behavior in different cultures and societies.
The transplantation of doctrinal and statutory rules do not really transfer the entire
law because there is much ‘law’ beyond legal rules. It has been argued that rules
lie on the surface of legal systems and do not properly portray profound fundamental
sociopolitical characters.23Therefore, they insist that development of law and
modernization must take place within that particular society. Their assertion is that
“in introducing foreign legal and political norms into any society, those norms will
become effective and take root only if they incorporate also a part at least of the
norms and philosophy of the native society”.24
III. KAHN-FREUND VS ALAN WATSON

Kahn-Freund for determining the degree of transplantibilty of rules and institutions
proposes a set of standards, referring to Montesquieu, by asserting that law created
for the people of one country is only appropriate for the citizens of that specific
nation and not any other; and if it happens that laws of two nations are the same,
that is just a coincidence.25 It means certain laws of a country only suit that particular
country and it is difficult to transplant it to another country. Montesquieu, thus, said,
“Laws are the necessary relations arising from the nature of things.”26He then
stressed that these obstacles were determined by two groups of variables: one
being environmental factor, including geographical, socio-economic and cultural
factors; and the other being “purely political” factor.27
21
Watson and Commune, Legal Transplants and European Private Law, Supra note 4 pp.79–80
22
John Gillespie, “Globalisation and Legal Transplantation: Lessons from the Past”, 6 Deakin L.
Rev., 2001, at 286
23
Ibid.
24
Pierre Legrand, “Against a European Civil Code”, 60(1) The Modern Law Review, 1997, pp.44–63
25
Zongling Shen, “Légal Transplant and Comparative Law”, 51(4) Revue Internationale de Droit
Comparé, 1999, at 853
26
Charles-Louis De Montesquieu, The Spirit of the Laws (Simon and Schuster, 1970)
27
Shen, “Légal Transplant and Comparative Law”, Supra note 25.
He affirmed that the developments in communication, urbanization and

industrialization reduced the environmental obstacles such as geographical, socio-
economic and cultural conditions and lost its significance; but on the other hand,
political differentiation caused divisions and gave birth to different political ideologies
ranging from communist and non-communist bloc, democracies and dictatorships,
parliamentary and presidential forms of governance and the roles played for making
and maintenance of the law by their organized interests. Kahn Freund in this
perspective said that in order to use comparative law methods, in addition to foreign
law knowledge, proper understanding of social and political context was required
too; otherwise if one doesn’t do so, its usage becomes a misuse.28
Kahn Freund’s idea is challenged by Professor Watson with regards to legal
transplant.29He rejected the arguments leveled by Kahn by saying that history had
clearly shown that successful transplantation has taken place from a very different
legal system to the other; and he do not see any necessity for having knowledge of
foreign systems. He gives the example of Roman law reception by the Western
Europe as a proof for prosperous legal transplantation.30
It is stated by Professor Eric Steni on the debate between Kahn-Fruend and
Watson that their differences on transplant were due to particular focus of their
inquiry where Watson, as a historical lawyer, took the “macro-legal” view which
believed in a massive transplant; whereas, Kahn Fruend, the sociological lawyer,
took the“macro-legal” view that primarily focuses on modern reform legislation.31
As to the objects or contents of legal transplant, we may divide what kind of
law we intend to transplant. It is a whole legal system, a whole code or a whole
branch of law of the foreign country, or only individual legal rule or institution? Is
law closely related to a foreign country’s basic social system, ideology and of value
or is it not or only marginally related with them? Is it a law tending to be
internationalized or to be nationalized? So far as the same rule or institute is
concerned, we may divide its political purposes and its social functions.32
a. Causes of Legal Transplant

One of the main reasons in the development of legal transplant in the world is
mainly due to Globalization.33 Accordingly, globalization brings more straight forward,
close, frequent and often stressed and complicated contact between law and legal
28
Otto Kahn-Freund, “On Uses and Misuses of Comparative Law”, 37(1) The Modern Law Review,
1974, pp.1-27
29
Watson, Supra note 15
30
Ibid.
31
Eric Stein, “Uses, Misuses—and Nonuses of Comparative Law”, 72 Nw. UL Rev., 1977, at 198
32
Id., at 855
33
Irma Johanna Mosquera Valderrama, “Legal Transplants and Comparative Law”, 2 International
Law: Revista Colombiana de Derecho Internacional, 2004, pp.264–65
cultures. It increases and assists the knowledge of legal professionals on what they
want and need to know about foreign law, obtain and process information, how
their transfer takes place, and how decisions are being made. Understanding
globalization and its effects on development of the laws and strategies and how to
deal with them is what is expected of comparative law field.34
Globalization has substantially increased the need for the legal scholars to have
knowledge of foreign laws. Substantial advancements in technologies have created
a global village where people are more connected to each other more than ever.
Thus, globalization has caused the need for new and unified laws more imminent
than ever.
In addition to that, the below factors are being discussed as the main causes of
legal transplant as stated by legal scholars. Legal transplant may find its way through
“authority, prestige and imposition, chance and necessity, expected efficacy of the
law, political, economic and reputational incentives from the countries and third
parties.”35
First and the foremost, according to Watson, authority is needed for the
explanation of the development of legal transplant. He goes on and says: “In the
absence of legislation, which typically has been scarce for private law, law making
is left to subordinates judges and jurists– who, however, are not given power to
make law. They must justify their opinion. It will not do to say ‘This is my decision
because I like the result’. They must seek authority.”36
Prestige and imitation has been classified as the next reason. Sacco is the one
who developed this theory by categorizing the reasons behind imitation of legal
transplantation into two, which are namely; imposition and prestige and asserts that
anyone with the authority and power tends to impose its institution over others and
one only can put an end to the reception (imposition) once the force is removed.37
Furthermore, it may also take place due to enthusiasm to follow the work of
others because of the intrinsic qualities that it possesses and thus it has become
very prestigious.38Orucu explained that chances and necessity is another reason
for legal transplantation and that the borrowing may not only take place out of luck
but rather out of necessity. And he has given the example of criteria needed to be
met by Eastern Europe to join the European Union.39
34
David J. Gerber, “Globalization and Legal Knowledge: Implications for Comparative Law”, 2001,
at 950
35
Id., at 265
36
Watson, Alan, “Legal culture v. Legal tradition”, paper presented at the Conference of Epistemology
and Methodology of Comparative Law in the Light of European Integration, Brussels, October
24-26, 2002, at 2
37
Sacco, “Legal Formants: A Dynamic Approach to Comparative Law (installment II of II)”, Supra
note 20 at 398
38
Ibid.
39
Esin Orucu, “Family Trees for Legal Systems: Towards a Contemporary Approach”, 2004, at 9
The theory of ‘Expected Efficacy of the Law’ has been claimed as another
reason behind legal transplantation. It has been detailed out by Walsh in these
words: “The way in which a formal legal order incubated in Europe was transplanted
into other countries was a far more important predictor of the effectiveness of legal
institutions than the association of that transplant with any particular legal family.
The quality of transplantation process counted far more than the content of the
transplant effect”.40
This idea of ‘Political and Economic Reputational Incentives’ was developed
by Schauer He asserted that: “The transnational and cross-border spread of law
and legal ideas is not, as it may be for scientific, technical, and economic ideas,
largely a matter of the power and value of the ideas themselves, but may instead be
substantially dependent, both on the supply side and on the demand side, on political
and symbolic factors that may have more explanatory power in determining how
law migrates than do factors that relate to the intrinsic or instrumental value of the
migrating law itself”.41
Hence, as it could be seen, legal transplant may find its way to any legal
system through voluntary, i.e. prestige, necessity, expected efficacy of the law,
political, economic and reputational incentives or involuntary means such as
imposition. Involuntary means are the worst type of legal transplantation and in
numerous cases it has resulted into chaotic and disastrous situations.
b. Successes and Failure of Legal Transplant

As to the effect of legal transplant, we usually divide it into failure and success.
There are remarkable cases where it proved that legal transplant can successfully
take place as the ombudsman and trust system, the French Civil Code and
Administrative Court, the Anti-trust legislation and judicial review in the United
States. Kahn specifically cited the attempted introduction of 1971 British industrial
relation and English jury system to the continent in the 19th century as an example
of misuse of comparative law, a kind of failure of legal transplant due to the opposition
of the continent legal profession.42
c. Problems of Legal Transplant in some Countries

(1) Turkey
As in Turkey the family law was tightly attached to Islam even during the uprising
of Ottoman Empire, which was done through compilation of legal code named
40
Catherine Walsh, “Law in Transition, Advancing Legal Reform”, 2000, at 10
41
Frederick Schauer, The Politics and Incentives of Legal Transplantation (Center for International
Development at Harvard University, 2000) at 2
42
Shen, “Légal Transplant and Comparative Law”, Supra note 25 at 856
Mejelle and the Shari‘ah concerning family laws, and which remained unchanged.
Under that men were allowed legally to have four wives as it connotes that polygamy
was an accepted practice during that time. In 1917, the Ottoman Law of Family
Rights Act was enacted in which new requirements were added. It required that:
i. The law required that state procedures must be strictly followed for every
marriage and divorce in which both marriage and divorce had to be
registered with the state.
ii. New age limit for marriage was set up which was 9 for females and 12 for
males.
iii. The marriage needed to be solemnized before the judge or deputy and
simple marriage renunciationwhich traditionally was done in the presence
of two witnesses was not enough any longer.
iv. Females were given two grounds for divorce of their husbands which were
epidemic sickness or leaving her without providing maintaince for her.43
And more importantly, women were allowed to insert a clause in a marriage contract
at the time of betrothal which would render marriage null and void if the husband
would take another wife. It interfered in an area that was previously dominated by
Islamic law and tradition.44
Subsequently, the Shari‘ah law was entirely replaced by the European civil
law, a radical move taken by Mustafa Kemal (Atatûrk) in form of the Civil Code of
1926, in which
i. Polygamy was prohibited.
ii. Methods of Civil Law were used in order to prove the grounds of divorce
in the presence of two witnesses.
iii. In the matters of custody and inheritance, both were given the equal rights.
iv. 18 for males and 17 for females were new age limit for marriage.
v. In order to legitimize marriage, it was not sufficient to be performed and
solemnized before imam but state civil servant.
vi. No religious marriages were allowed to happen before the official civil
marriage.
vii. Religious ceremony had to take place strictly after civil marriage as stated
in Section 110 (later 143/2).45
43
Nursel Atar, “The Impossibility of a Grand Transplant Theory”, 4(2) Ankara Law Review, 2007,
pp.177-97
44
June Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice (Suny Press, 1992)
at 40
45
Ibid.
However, this Code, led to a lot of social problems, as the majority of people
were still performing religious marriages in the society. Seven years after, by passing
the Amnesty Act 1933, legislature was forced to recognize the religious marriages,
which was previously considered illegal and the children as the outcome of those
marriages were considered illegitimate. The enactment took place due to the following
problems:
i. Religious marriages were still taking place without complying with civil
marriages which was legally prohibited and their cohabitation was not
recognized.
ii. Husband and wife were not given the right of inheritance from each other
and their children were considered illegitimate.
Even after the Amnesty Act was passed, in order to give people time to
assimilate the civil law rules with regards to marriages, the above-mentioned problems
persisted until 1936. Frustrated over this social problem, legislature took another
shocking step and added section 237/3-4 into the Criminal Code in which religious
marriages were criminalized if it was taken place without prior civil marriage and
non-compliance would result in two to six year’s imprisonment. The Imams who
conducted these types of marriages were not immune from criminal prosecution
and could face up to one to three months imprisonment if they were to solemnize a
marriage without looking at the proof of its civil marriage.46
(2) Tunisia
Tunisia went through drastic reforms same as Turkey. In Tunisia, initially laws were
determined by the state and religious principles, and it had gone through waves of
reforms especially after its independence in 1956. In 1956, the Code of Personal
Status (CPS) was adopted under Habib Bourguiba the former president in which it
included series of laws that were inconsistent with the Sahri‘ah. These law reforms
were as follow:
i. It abolished polygamy even though the head of household were still males.
ii. CPS increase the minimum age for marriage.
iii. Marriages had to be registered and it recognized child adoption.
iv. In the middle of 1960s contraception was available and in 1970s it legalized
abortion.47
46
Atar, supra note 43, at 188
47
Mounira M. Charrad, “Tunisia at the Forefront of the Arab World: Two Waves of Gender Legislation”,
64 Wash. & Lee L. Rev., 2007, at 1513
Thus, the authority on family law, was taken out of Ulamas’ hands and was
usurped by the authorities and eventually instituted a secular alternative to the
Shari‘ah.48 Secularization of the court system, dismantling of Zitouna’s religious
university and conformity with the western’s calendar were among other steps
which were taken by the government for further secularization of the country.49
Therefore a secular form of dictatorship was established under Bourgiba’s leadership.
It was continued by Ben Ali, his successor, who’s regime lasted until Arab Spring.
Religious political parties were banned to be formed in Tunisia throughout Ben
Ali’s era in order to curb their influence in the society.50 After the revolution of 2011
in Tunisia, the role of religious based political parties were enhanced and were
allowed to contest general elections which led to the wining of al-Nahda an Islamic
political party in October 2011 for the Constituent Assembly.51
The need for the representation of an Islamic party was apparent because the
process of securitization went simultaneously with political compression. Under
Habib Bourguiba’s leadership from 1957 till 1987, formation of any Islamic political
party was prohibited and his dissenters were imprisoned, he on a live television
show, drank orange juice during Ramadan, meaning to say that fasting prevents
development and it reported to have said that “We cannot advance… with an empty
stomach”, and all these happened in a country with Islam as the dominant religion
with 99 percent Muslims. This action was followed by his successor Ben Ali as
well. Therefore, the discussion about the role of Islam with law was new concept
and freedom which was still hammered for over 50 years in Tunisia.52
Subsequently, after the winning of al-Nahda, there were calls for drafting a
new constitution and legalizing polygamous marriages in line the constitution with
Islamic principles.53 These law-reforms were mainly enhancing the role of Islamic
law in the Tunisian constitution as well as its domestic laws and criminalizing
blasphemy in both constitution as well as its penal code.54
48
Abdelbaki Hermassi, “The Political and the Religious in the Modern History of the Maghrib”,
Islamism and Secularism in North Africa, 1994, pp. 92–93
49
Ibid.
50
Colleen McCullough, “Tunisia: Islamists and the Upcoming Election | The Maghreb Center Student
Blog on WordPress.com,” 2011, available at: https://themaghrebcenter.wordpress.com/2011/
06/24/tunisia-islamists-and-the-upcoming-election/
51
Bureau Chief Habib Toumi, “Al Nahda Wins Historic Tunisia Elections | GulfNews.com,” 2011,
available at: http://gulfnews.com/news/mena/tunisia/al-nahda-wins-historic-tunisia-elections -
1.919988
52
McCullough, supra note 51
53
Lamia Ajabi, “Tunisian World: No to Polygamy in Tunisia”, 2012, available at: http://
tunisianworld.blogspot.my/2012/09/no-to-polygamy-in-tunisia.html
54
George Sadek, “The Role of Islamic Law in Tunisia’s Constitution and Legislation Post-Arab
Spring,” 2013, available at: http://www.loc.gov/law/help/tunisia.php
Problems which arose out of this legal transplantation in Tunisia were as follows:
i. Religious marriages were still taking place without complying with civil
marriage requirementsin which non-compliance was legally prohibited and
any cohabitation was strictly not recognized.
ii. Husband and wife were not given the right of inheritance from each other
and their children were considered illegitimate.
iii. Laws enacted were non-compliant to Sharia’hrules in a country with over
90% Muslim population.
(3) Pakistan
The judicial system of Pakistan has evolved over a long period of time and the root
of the current judicial system can be traced back to the medieval period and even
before. The system has gone through several eras, ranging from the Hindu era,
Muslim period comprising of the Mughal Empire, British colonial period and the
current post-independence era. The following changes in its rules and dynasties
were the natural result of political and socio-economic transformation of the Indian
society. Generally, the judicial system sustained a gradual advance and a stable
growth towards consolidation and improvement, without really, having to experience
any major disturbance or breakdown.55
Before the creation of Pakistan (as it was part of India), the Charter of 1623
authorized the East India Company to resolve the cases of its English employees
which led to the establishment of its own court. All the cases of criminal and civil
nature were heard by the President and Council of the Company. The Charter of
1661 further brought about the expansion of such powers such as authorizing the
council and the governors to not only hear cases of East Indian Company’s employee
but rather those people who reside in the settlement.Therefore, the English law
was applied when they were adjudicating on those cases. With the result of this,
there was shift in the character of the Company from a trading company into a
territorial power; thus, in course of its territorial expansion it established additional
courts for the settlement of disputes of its employees and the subjects. Therefore,
these courts were comprised of English judges and English laws were generally
applied.56
As a provisional Constitution, Government of India Act 1935 was retained on
independence. Consequently, with modifications and adaptation, the legal and judicial
system of the British period was continued to suit the requirements of the new
Republic. Therefore, the operation of the legal system’s operation continued without
any interruption and breakdown and the judicial structure also remained the same.57
55
Faqir Hussain, “The Judicial System of Pakistan”, Federal Judicial Academy Islamabad, 2015
56
Ibid.
57
By the High Court (Bengal) Order 1947
Similarly, for Pakistan, a new Supreme Court was also established.58Through the
Government of India Act 1935, the powers, jurisdictions and authorities of the Supreme
Court and High Courts remained intact.59
The British colonization brought nothing but division between the different
segments of the society. Indian National Congress became the representative body
of the whole county and it was heavily criticized by the prominent Muslims who
allegedly saw the coming bitter split between the communities. They stressed that
the Indians did not form one nationality which was the basic requirement for a
successful democracy in any nation. They further added that the current model of
the governance is unworkable as the Muslims and Hindus are divided and are far
unequal in their strengths and national representation.60 Accordingly, creating a
distinct identity for the Muslims was the motivating factor behind the creation of an
independent Pakistan.61
It was argued by Maulana Maududi that from the start of the struggle for
Pakistan, there was a belief among the people demanding a separate country that it
would be an Islamic state and the law and policy will be based on the Shari‘ah. It
would result in the revival of Islamic law as well as Islamic culture. Muslim League
leaders were always giving that impression in their speeches. Therefore after the
independence of the Pakistan, special position was given to Islam in its constitution.
Article 1 of the Pakistan’s constitution with this regards states that: “Pakistan shall
be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter
referred to as Pakistan. Islam shall be the State religion of Pakistan.” Because of
this, the colonial laws were Islamized so that they could be in line with the Qur’an
and Sunnah.
IV. LEGAL CULTURE

The relationship between legal culture and legal tradition was put forward by Watson
after the development of legal transplant theory. He stated that: “The answers for
understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture.”62
Blankenburg must be referred to in order to understand the definition of “legal
culture” which he puts forward in the subsequent terms on “A complex
interrelationship in four levels:
i. The level of values, beliefs and attitudes towards law.
ii. Patterns of behavior.
58
By the Federal Government of Pakistan Order 1948
59
Ibid.
60
Chief Justice (rtd) Qadeeruddin Ahmed, The Demand of a Muslim Homeland, Dawn 23.3.1992
61
Ibid.
62
Valderrama, “Legal Transplants and Comparative Law”, Supra note 33 at 271
iii. Institutional features.

iv. The body of substantive as well as procedural law.”63
The importance of “legal culture” can be properly understood with regard to
the approach to the study of comparative law where Peter and Schwenke rightly
stated that:
“At all stages of comparative research (data acquisition, analysis and
interpretation of the data, and actual in-depth comparison and eventual evaluation),
the real problems are the lack of full knowledge and understanding of foreign legal
rules and cultures. They (comparatists) must know something about the historical,
social, economic, political, cultural and psychological context which has made a rule
or proposition what it is. We must look not only at rules but at legal cultures, traditions,
ideals, ideologies, identities, and entire legal discourse.”64
Why has the Legal Transplant’s Debate led to the “Dialogue of Deaf”?
There have been infinite discussions on legal transplant’s workability or unworkability
between comparative law scholars and somehow it has led to a “dialogue of deaf”.
The problem is that it has always been discussed from the perspective of Culturalists
or Trasnferists. The discussion has always been either on legal transplant’s successes
or on failures. If there are any successes, Transferist hail that. Actually, legal
transplants worked and Culturalists are wrong and vice versa.
We believe that, in order to properly examine legal transplant and put an end to
this partisan discussion, we should closely look at the reasons behind successes and
failures of legal transplants. If it worked in one society, we cannot jump to a conclusion
that the same exact legal system would work in another society. This is because the
conditions in that country may not be the same.
There should not be any discussion on the workability of legal transplant and
whether legal transplant is necessary or not as one can rightly say that legal transplant
is a tool needed by every legislature in order to make law reforms in their societies.
Therefore, we believe that there shouldn’t be any dispute on the necessity and
importance of legal transplant.
Nevertheless, the most fundamental question has to be: how can legal transplant
come about in a society which meets its socio-political and religious values? As
Professor Sacco rightly said that ‘imposition’ or ‘prestige’ were the two main reasons
behind legal transplantation. He further clarified that any powerful nation would in
order to spread its own laws, would impose it on other nations or its reception may
happen due to its prestige.65
63
Erhard Blankenburg, “Patterns of Legal Culture: The Netherlands Compared to Neighboring
Germany,” The American Journal of Comparative Law, 1998, pp.1–41
64
Peters and Schwenke, “Comparative Law beyond Post-Modernism”, Supra note 1 at 832
65
Shen, “Légal Transplant and Comparative Law”, Supra note 25 at 855
If a legal transplant takes place through the first classification (imposition) and
forceful means, it leads to nothing but catastrophic results. If one takes a look at the
failure of legal transplants in countries such as Tunisia and Turkey and Malaysia
and the problem it brought afterwards in those societies, one may find a common
reason behind its failure and that is imposition where the legal transplantation found
its way in a society through forceful means without any regards to its social, historical
and religious values.
Let’s take a look on how legal transplant took place in those countries and let’s
start with Turkey. When Atatûrk came into power, he adopted dictatorial method of
governance and extreme actions were taken against his political dissenters. He
substituted the whole body of Shari‘ah enacted under Othoman Empire with various
European Civil Law, specifically the Civil Code of 1926. It put an end to polygamy,
the law of inheritance was changed and women would inherit the same as male,
and would give child custody to both, it required the ground of divorce to be
corroborated by witnesses before the secular court which would look at the matter
from civil law perspective and religious marriages were not a valid form of marriage
anymore and so on and so forth.
Thus, Kemalism became the official Turkey’s ideology that came into existence
due to anti-Islamic and ultra-secular views of Mustafa Kemal Atatürk. He disposed
of the caliphate, banned Islamic education and Sufi brotherhood and removed the
Arabic alphabets which were an integral part of the society.66
These radical changes (a kind of legal transplant) took place in a dictatorial
manner without any regards to the legal cultures in a country of above 90 percent
Muslim population. Those who opposed these radical changes were harshly
prosecuted. Therefore, decades of those impositions generated people’s frustration
with the legal system and paved the way for an Islamist Party Justice and
Development Party (AKP) to come to power. If it wasn’t for those radical changes
which entirely changed the legal system and structure of the society, Justice and
Development Party may have never come into power. Islam is currently going
through a remarkable revival in Turkey. President Tayyip Erdogan and Prime Minister
Ahmed Davutoglu are putting a lot of effort on re-awakening of Muslims and
reestablishment of Islam within Turkey as well as abroad.67The decades-long ban
on wearing of headscarf in public institutions was lifted and in primary schools, no
more daily pledge of allegiance is needed.68Likewise, selling alcoholic beverages
66
Ömer Taþpýnar, “Islamist Politics in Turkey: The New Model?”, 2012, available at: http://
www.brookings.edu/research/papers/2012/04/24-turkey-new-model-taspinar
67
Can Erimtan, “President Erdogan and Islam: Piety and Ottomanitas- RT Op-Edge”, 2014, available
at: https://www.rt.com/op-edge/208447-turkey-erdogan-religion-islam/
68
Elhanan Miller, “Erdogan’s Turkey: Less Nationalism, More Islam | The Times of Israel”, 2013,
available at: http://www.timesofisrael.com/erdogans-turkey-less-nationalism-more-islam/
are banned between 10 pm to 6am by the retailers as well as the selling cannot take
place near schools and place of worships.69
We would agree with the Culturalists point of view in Turkey where Christians
in Europe and Muslims in Turkey were politically, culturally and socio-culturally
different and held dramatically different values and, therefore, the legal transplant
was a mistake.70
Thus, we can see in the case of Turkey that neither legal transplant took in a
proper way (imposition) nor it was needed. A country which had codified Shari‘ah
law, which suited that society, was not in need of European civil law because their
own law met the needs of the society. Ottoman Empire was defeated in the World
War I and it came under the leadership of Atatürk with pro-west ideology that
chose a dictatorial way of leadership.
Tunisia almost went through the same trend and transformation as well. Code
of Personal Status (CPS) under president Bourguiba’s leadership was adopted in
1956. It was consisted of a series of laws which led to the different illustration of
the dominant law, i.e. Islamic law. It banned polygamy, it led to the legalization of
child adoption, law of inheritance and male unilateral divorce (talaq) was changed.
These laws gave no regards to the fact that above 90 percent of Tunisians were
Muslims and some of these changes coming under the name law reforms were
non-Shari‘ah compliant.
No consideration was given to the probable consequences of this process of
secularization which was implemented through dictatorship. It led to chaotic revolution
not only in Tunisia but also in Arab world. It led to coming of Islamic party al-Nahda
into the power in order to reform laws and once again enhance the position of
Shari‘ah law in Tunisian’s constitution and domestic legislation.
Malaysia was not immune from this phenomenon as well. After the British
colonization of Malay Peninsula, the process of secularization of the Malaysian
legal system began which was previously administered by Islamic law. Therefore,
through secular fiat only administration of Islamic law was validated which resulted
to be only personal law applicable only to Muslims such as inheritance, marriage
and divorce.71
As to address how and when did Islam was brought into Malay Peninsula, it
was introduced and brought by Arab traders and Indian merchants in the Malay
69
Güneº Kömürcüler, “Restrictions on Alcohol Sales Go into Effect Today in Turkey- Economics”,
2013, available at: http://www.hurriyetdailynews.com/restrictions-on-alcohol-sales-go-into-effect-
today-in-turkey.aspx?PageID=238&NID=54074&NewsCatID=344
70
Atar, supra note 43
71
“The Position of Shariah Court in Malaysian Legal System – Rosli Dahlan and Fawza Sabila
Faudzi - The Malaysian Insider”, 2015, available at: http://www.themalaysianinsider.com/sideviews/
article/the-position-of-syariah-court-in-malaysian-legal-system-rosli-dahlan-and-fa
land estimated between 7th and 12th century.72Later, Islam became the official
religion of the region not only applicable to rituals and rites but rather substantive
and procedural law and the law was not only applicable to the residents residing in
Tanah Melayu but rather the victors as well.73
The position of Islamic law in Malayan Peninsula started after the “Anglo-
Dutch Treaty” in 1824 and British colonization and had a major role on ramification
of Islamic Law and Shari‘ah Court’s Statutes. The enactment and administration of
Islamic Law was given to the states and its state legislative council.74
In Shaik Abdul Latif & Ors. v. Shaik Elias Bux,75it was stated by Edward
CJ that “before the first treaties the population of the states consisted almost solely
of Mohamedan Malays with a large industrial and mining community in their midst.
The only law at the time applicable to the Malays was Mohamedan modified by
local custom.” In Ramah v. Laton76 Thorn J. illustrated that: “Muslim law is not
foreign law but local law; it is the law of the land, and the local law is a matter of
which the court must take judicial notice. The court must propound the law.” In
Tengku Jaafar& Anor v. The State of Pahang77 the endorsement was given by
the Supreme Court that before coming of Torrens system, Islamic law was the
applicable law in relation to the land matters in Pahang.78
Regardless of all these, through Civil Law Act 1956, Common Law and rules
of equity was imposed into the Malaysian Legal system. Section 3 stated that:
(1) “Save so far as other provision has been made or may hereafter be made
by any written law in force in Malaysia, the Court shall—
(a) In Peninsular Malaysia or any part thereof, apply the common law of
England and the rules of equity as administered in England on the 7
April 1956;
(b) In Sabah, apply the common law of England and therules of equity,
together with statutes of general application, as administered or in
force in England on1 December 1951;
(c) in Sarawak, apply the common law of England and the rules of equity,
together with statutes of general application, as administered or in
72
Johan H. Meuleman, “The History of Islam in Southeast Asia: Some Questions and Debates”,
Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21 st Century.
Singapore: Institute of South East Asian Studies, 2005, pp.22–23
73
Ramizah Wan Muhammad, “The Administration of Syariah Courts in Malaysia, 1957–2009”, 13(2-
3) Journal of Islamic Law and Culture, 2012, pp.242–52
74
Ibid.
75
(1915) 1 FMSLR 204
76
(1927)FMSLR 128
77
[1978] MLJ 33
78
[1987] 2 MLJ 74
force in England on12 December 1949, subject however to sub-

paragraph(3)(ii)”.79
Moreover, Article 160 of the Malaysian Federal Constitution describes “law as
includes written law, the common law in so far as it is in operation in the Federation
or any part thereof, and any custom or usage having the force of law in the Federation
or any part thereof”.80
Therefore, the position of Islam degraded to the personal matters and common
law became the dominant law. Since independence, in Malaysia there has been
coexistence of justice system where Shari‘ah courts deals with the matters related
to Islam and people profess the religion of Islam whereas civil courts deals with
civil and criminal matters. However even with that, the relationship between Civil
and Shari‘ah court has not been an amicable one where prior to 1988, the decision
of Shari‘ah Court was regularly reviewed by civil court by certiorari and overturned
it.81
In order to enhance the position of the Shari‘ah court, and to overcome the
clash of jurisdictions, to protect its integrity, to free the Shari‘ah courts from the
civil courts interference and in order to avoid conflict of jurisdiction, in 1988,
Parliament passed the Constitution (Amendment) Act 1988 [Act A704]. Clause
(1A) was further added in the Article 121 of the Federal Constitution which provided
that “the civil courts shall have no jurisdiction with respect to matters within the
jurisdiction of the Shari’ah courts”.82.
Even with that, new conflicts have sparked between the Shari‘ah and Civil
Courts over child custody and religious rights of children in Deepa
Subramaniam, 83Indira Gandhi 84 and Subashini Rajasingam. 85Therefore, the
problem continues and there are more amendments expected to further clarify the
position of Islam and the Shari‘ah court’s jurisdiction.
In Indira Gandhi, the court of appeal held that Muslim convert Muhammad
Riduan Abdullah’s conversion of his three Hindu children to Islam without obtaining
their mother’s consent was not valid as it did not comply with Islamic law
requirements. The three children’s Hindu mother, M. Indira Gandhi, had in 2013
managed to get the civil Ipoh High Court to quash the unilateral religious conversion,
79
Civil Law Act 1956
80
Federal Constitution of Malaysia
81
Myriam v. Ariff (1971) 1 Mlj 265 and Commissioner for Religious Affairs, Terengganu & Ors v.
Tengku Mariam (1969) 1 MLJ 110)
82
Sukma Dermawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia (1999) 1 CLJ 481)
83
Viran Nagapan v Deepa Subramaniam [2015] 3 CLJ 537 (CA)
84
Indira Gandhi a/p Mutho v. PengarahJabatan Agama Islam Perak &Ors [2013] 5 MLJ 552
85
Subashini a/p Rajasingam v. Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147
but the Perak Islamic Religious Department (JAIPK) and other bodies appealed
against the verdict.86
Therefore, still the problem is in existence and an immediate solution is needed
to address this issue to prevent the clash of both the courts. It is undeniably better
and will be in the best interest of the children if there was only one court handling
this issue taking into consideration the best interest of the kids.
However on the other hand, if the legal transplant takes place through other
means such as imitation due to the prestige that it possesses, then that would in our
opinion be considered a perfect legal transplant. Legislature would take all aspect
of societal, cultural and religious background of the society and then would enact a
law that is compatible with their values.
Brunei is an example to look at where Shari‘ah law has been fully adopted as
the law of the land. Shari‘ah law is not a new notion in Brunei where Islam was
accepted in the 15th century and it has been long embedded in the country‘s
governance and the head of state had the responsibility to promote and protect
Islam. However, only Family law matters were referred to the Shari‘ah Court but
on May 2014, the first phase of the Syariah Penal Code Order 2013, came into
force87 it provided particular offences and punishments for the crimes that are
prescribed by the Quran and Sunnah (prophetic tradition). Mandatory attendance
of Friday prayer and offences such as disrespecting Ramadhan was also added in
the Penal Code even though it was prescribed in the Quran or Sunnah.88
For offences such as Sariqah (theft), Hirabah (robbery), Zina (adultery) Zina
Bil-Jabar (rape), Liwat (sodomy), Qazaf (accusation of adultery, sodomy and rape),
drinking intoxicating drinks, Irtidad (apostasy), punishment and penalties are Hadd
- Punishment as ordained by Quran and Hadith, including amputation of hand (theft),
death or amputation of hand/foot (robbery), stoning to death or whipping (adultery
or rape) Other – Fine, imprisonment, whipping.89
V. CONCLUSION
There is still hope on the workability of legal transplant and undoubtedly it is an
essential process of law reforms in every country. As Sacco rightly said that imitation
and borrowing is a major legal change and very rarely new rules and institution will
emerge. It is always the question of how legal transplant takes place. If it happens
through colonization (imposition) and forceful means as it happened in the past,
there will not be any doubt on its unworkability and ultimate failure.
86
Available at: http://www.themalaymailonline.com/malaysia/article/converting-children-
unilaterally-is-un-islamic-court-told-in-indira-gandhi#sthash.vktNpdAI.dpuf
87
Brunei Syariah Penal Code Order, 2013
88
Ibid.
89
Ibid.
Oliver Deneys Schreiner rightly said that: “I like the picture of the growing
law, developing indefinitely into the future, not losing its roots but ever throwing out
fresh branches and deriving its sustenance from any source above or below the
ground that can be of use to it. Looking at it that way one can see that your legal
system and mine can continue to grow in beauty side by side if one’s interest is in
the harmony of the law or providing ever more appropriate and convenient rules if
one is more concerned with the practical service of the community. I suggest that
we can both be proud of our legal systems and of the association that has for more
than a century existed between them. Long may that association continue and
much may we together contribute to the strengthening of the supremacy of the law
inside our respective jurisdictions and, above all, in these dangerous days, between
the nations of the world”.90
Therefore, there is no doubt on the workability of legal transplant if takes
place through proper means as stated. If the legal culture, societal and religious
background are taken into consideration before legal transplant takes place, there is
high possibility of its workability. If those factors are ignored and legal transplant
found its way through imposition, undoubtedly it leads to disastrous results.
90
Oliver Deneys Schreiner, The Contribution of English Law to South African Law; and the Rule of
Law in South Africa (Stevens, 1967) at 105
ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 61-74
Rethinking the Sexual Politics of “Law” and

“Order” §
Rachna Chaudhary *
Abstract: This paper deals with the impact of gendered identities upon
judicial discourse through critical analyses of select judgments. It emerges
from the analysis that ‘promiscuous’ women, by way of their positioning
as the ‘other’ of the ‘normal’ women who are ‘non-promiscuous’, get
constantly defined in relation to them and in the process define these
‘normal’ women. The law and its agents as instruments of state hegemony,
also produce, enforce and reiterate the differences between the two
categories. Nevertheless, the space thus occupied by both conformists
and ‘deviants’ is not merely as inert objects but also as agents (at times in
a subtle and otherwise more obvious manner), thus subverting or at least
undermining patriarchy and other structures of social control. The paper
argues that there definitely is a distinction between ‘the law’ and the impact
of law and legal processes. The existing structural inequalities between
the sexes have continuously informed judicial practice and in the process,
have been further entrenched within the socio-political system.
Key Words: Feminist Jurisprudence, Patriarchy, Subjectivity,

Heteronormativity, Gender Justice, Power, Resistance
I. INTRODUCTION
Dworkin rightly says that “We live in and by the law.”1 It gives us the ‘only permissible
identities in modern democracies.’2This paper draws upon the work of critical
theoristsmentioned in the preceding sentences and deals with the impact of gendered
§
Earlier versions of this paper were presented at the International Seminar organized by the
Women’s Studies and Development Centre, University of Delhi on “In the Name of Honour: A
Dialogue on Androcentric Matrimonial Practices and Women’s Subjugation in South Asia” held
during 16th-18th Feb., 2011and the National Seminar on “Gender, Law and Social Transformation
in India” 17th -18th September, 2012, University of Hyderabad.
*
Assistant Professor (Gender Studies), Ambedkar University, Delhi. Author may contacted at:
[email protected]
1
Ronald Dworkin, Law’s Empire (Universal (1st Indian Reprint, Delhi, 2002) at vii
2
Nivedita Menon, Recovering Subversion: Feminist Politics beyond the Law (Delhi: Permanent
Black,2004) at 236
identities upon judicial discourse. The analysis focuses upon the manner in which
different categories of women and their sexuality is constructed and treated in the
judgments delivered by various courts in India since 1990s. The cases included
range from matters pertaining to matrimonial and related disputes to those involving
women accused of various crimes ranging from murder to prostitution.
The paper has focused upon the law as not just an apparatus for regulation but
also as a means of social transformation. Discursive subject formation is important
in this context because the law and legal agents not only regulate the ‘subject’ of
their discourse but also produce it by supplying terms of description and references.
It is important to understand the implication of these terms and references in order
to chart future politics. The analysis of legislative provisions and judgments would
thus help in suggesting the changes in provisions and the approach towards addressing
the related issues.
I. UNMARRIED WOMEN AND THE CRIMINAL JUSTICE SYSTEM

It emerges from these judgments that the portrayal of women interacting with the
criminal justice system is based upon certain stereotypical images or what Rafter
and Stanko call ‘cultural configurations’.3 The ‘abnormal’ is thus compared to the
‘normal’, the ideal or the reasonable.These judicial pronouncements are thus informed
by prevalent societal notions despite normative law being the basis of these
judgments. In that sense, despite ‘gender neutral’ laws, the person to be ‘assessed’
by the court is very much gendered and is assessed according to the preconceptions
of the judge about gender roles. Pitch reasserts what she calls a ‘familiar (feminist)
critique of legal discourse’, “Juridical ‘persons’ are ‘neutral’; then there are gendered
beings and these are women, who, therefore, are not really ‘persons’.”4
The case Priyanka v. State involved a young unmarried girl as an accused in
an alleged dowry death case.5 The judges while denying bail would remark,
“Petitioner is a girl of marriageable age. The car perhaps might be needed for
giving in dowry for her marriage, as is also stated in some of the statements.”6 An
implication of this remark is that marriage is ‘essential’ for a girl and that she is
‘eligible’ for marriage upto a certain age only. And this girl would ‘need’ dowry for
her marriage. In the same case, the judges tried to stay away from ‘soft justice’
since they believed that “A young woman of intelligence, character, education would
3
N.H. Rafter and E. Stanko, (eds.), Judge, Lawyer, Victim, Thief: Women, Gender Roles, and
Criminal Justice (Boston: Northeastern University, 1982) at 4
4
Tamar Pitch, “Feminist Politics, Crime, Law and Order in Italy” in Rafter and Heidenshon (eds.),
International Feminist Perspectives in Criminology: Engendering a Discipline (Buckingham:
Open University Press, 1995) at 93
5
Priyanka v. State 1998 (76) D.L.T. 204.
6
Ibid .
RETHINKING THE SEXUAL POLITICS OF “LAW” AND “ORDER” 63
not welcome the embrace of death unless provoked to that desperate step by the
intolerance of her misery.”7 Would it mean that a woman lacking in all these qualities
has no right to live or her death would not be as big a loss? In fact the deceased was
being praised for her ‘womanly’ virtues because these are the ‘desirable’ qualities
that a woman should possess. And such a righteous woman needs protection because
her ‘femininity’ and conformity make her vulnerable as well as ‘valuable’.
In a case of alleged kidnapping and rape of a minor, the judge, while accepting
the female accused Bhuro’s innocence as argued by her counsel, observed about
Urmila(the minor) and Raghbir(main male accused) that “It would be too much to
assume that when a young boy and girl get together, they would pander to illicit
intercourse. In the ordinary course of human conduct, in the absence of proof such
a perverse thought cannot be entertained….that Urmila voluntarily participated in
the frolic with Raghbir chops off the case of the prosecution against Bhuro.”8It is
evident from the language of the judgment that intercourse outside marriage is
‘illicit’. It effectively brings out the relationship between power and sex as elaborated
by Foucault wherein ‘sex is placed by power in a binary system, licit and illicit,
permitted and forbidden and thus ‘sex is to be deciphered on the basis of its relation
to the law’.9
It emerges that the ‘promiscuous’ women, by way of their positioning as the
‘other’ of the ‘normal’ women who are ‘non-promiscuous’, get constantly defined
in relation to them and in the process define these ‘normal’ women. This construction
of ‘promiscuous’ women, as belonging to a separate category is based on
stereotypical ideologies of female sexuality and hence the ‘fallen’ woman is
stigmatized for not being passive, submissive and feminine like the ‘normal’ woman.
In fact a non-prostitute but ‘promiscuous’ woman is often labeled as a ‘prostitute’.
The law and its agents as instruments of state hegemony, also produce, enforce
and reiterate the differences between the two categories. The duality in ‘moral’
expectations from men and women, prevalent in Indian society is also evident. This
is because women have always been portrayed as the guardians of social morality
since they were (and are) expected to be more ‘virtuous’ than men. By making
their explanations appear natural, the judges use discourse as a mode of sustaining
the power relations within the society and also contribute towards institutionalization
of patriarchal norms.
The judge in thiscase also deduced that since the ossification tests revealed
that Urmila had ‘a fairly well-formed and developed body as that of a girl around 18
years old’, she was capable of ‘knowing and had the capacity to know the full
7
Ibid .
8
Raghbir Singh and Another v. State 1991 (44) D.L.T. 253
9
Michel Foucault, The Will to Knowledge: The History of Sexuality, translated by Robert Hurley
(Penguin, London, 1998) at 83
import of what she was doing’.10 Urmila is thus ‘judged’ as having willingly
accompanied Raghbir and her age established the legitimacy of her consent.11So
the pelvic bones emerge as the seat of rationality even though the veracity of these
tests has been questioned by experts from forensic science itself. In this context,
Menon opines that the demand of law for objective evidence in sexual abuse or
rape cases necessitates the establishment of the victim’s ‘innocence’ based upon
her non-complicity and non-consent.12 So Bhuro the ‘accused’ rather than Urmila
the ‘victim’ was found worthy of judicial patronage and hence acquitted. In the
course of the judgment, not only the ‘innocence’ of Bhuro was established but the
‘guilt’ of Urmila was also brought out. The ‘efficiency’ of our criminal justice system
is evident in this case as the incident took place in 1971 and the trial court had
awarded Raghbir and Bhuro, two years and one year prison sentence respectively
and while Raghbir died during the trial, Bhuro was acquitted after twenty years by
the High Court.
III. STATE AND THE PROSTITUTE

In Kumari Sangeeta and Another v. State and Others13, the High Court Judge
quashed the order of the subordinate judge and the petitioners were set free. But
certain observations of the magistrate in the lower court came up like he assumed
that since the petitioners belonged to Badya caste which is known to have pursued
singing and dancing as a profession, they must be involved in prostitution. Baxi has
cautioned against the stereotyping and stigmatization of these social groups as he
feels that it might further alienate them from the mainstream and that they would
also lose faith in the judicial system.14The High Court judge in this case, questioned
the wisdom behind this casteist assumption. The judge also differed with the
magistrate’s opinion that since the medical examination proved that the petitioners
had had sex within a week before their medical examination, thus they were indulging
in prostitution. The judge pointed out the fact that sexual intercourse in itself is not
an offence.
In Meena and Others v. State,15 The High Court judge held that no case
could be made against the accused as the girls ‘offered’ themselves ‘of their own
free will’ to the decoy customer sent to them by the raiding party. And thus the
judge quashed the order of the subordinate judge. While the judge has used the
term profession for prostitution, the attitude towards the prostitute is not one of
dignity as is evident from the use of words like ‘illicit intercourse’ and ‘offering
10
Ibid.
11
Nivedita Menon, supra note 2, pp.126-129
12
Id., at 130
13
Kumari Sangeeta and Another v. State and Others1995 (58) D.L.T. 589
14
Upendra Baxi, Towards A Sociology of Indian Law (New Delhi: Satvahan, 1986) at 106
15
Meena and Others v. State1991 (43) D.L.T. 554.
herself promiscuously for money to customers’.16Again the binary of legitimate and

illegitimate is created.
IV. CENTRALITY OF MARRIAGE

Marriage and procreative sex within the institution of marriage have been the givens
of the patriarchal, patrilineal, patri-virilocal Indian society. There is a mutually
reinforcing relationship between marriage and birth as marriage is essential for
giving birth and because one is born, so one is expected to get married. This
‘essentialisation’ of marriage has greater implications for women as ‘failure to
marry is a greater disgrace for a woman than for a man’.17 In fact marriage is
regarded to be the only ‘natural’ and ‘legitimate’ institution within which a woman’s
sexuality is recognized and allowed to be practiced. All others falling outside this
category and making sexual choices are seen as ‘fallen’ women and even the law
barely comes to their rescue. This is because deviance from established norms is
seen as a threat to the entire societal fabric. The Court observed in Chetan Dass v.
Kamla Devi, that matrimonial conduct “is sought to be controlled in the interest of
the individuals as well as in broader perspective, for regulating matrimonial norms
for making of a well-knit, healthy and not a disturbed and porous society.”18An ideal
society is the one based upon monogamous, heterosexual marital relations as
recognized by law. And with this homogenization of the diverse family forms located
on a continuum, a number of intimate relations are rendered illegal. Barrett and
MacIntosh have rightly observed that “Just as the family has been socially
constructed, so society has been familialized.”19
It can thus be explained why the judges in D. Velusamy v. D. Patchaiammal
observed about non-marital live-in relationships that “a new social phenomenon
which has emerged in our country known as live-in relationship. This new relationship
is still rare in our country, and is sometimes found in big urban cities in India, but it
is very common in North America and Europe.”20 This positioning of the Western
world as being more permissive and hence different from the Oriental world helps
is assertion of comparative moral superiority. In India also, live-in relationships
have been a part of human existence though their nature varies in different contexts.
Later, in the same case, the judges timed live-in relationships in distant past thus
again creating the impression that modernity is in sharp contrast to and in fact more
permissive than feudal society. They wrote, “In feudal society sexual relationship
16
Ibid.
17
Ursula Sharma, “Dowry in North India: Its Consequences for Women” in Patricia Uberoi (ed.),
Family, Kinship and Marriage in India (New Delhi: Oxford University Press, 2001) at 350
18
Chetan Dass v. Kamla Devi (2001) 4 SCC 250
19
M. Barrett and M. MacIntosh, The Anti-Social Family(London: Verso, 1982)at 31
20
D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469
between man and woman outside marriage was totally taboo and regarded with
disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave
Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat
Chandra Chattopadhyaya. However, Indian society is changing, and this change
has been reflected and recognized by Parliament by enacting The Protection of
Women from Domestic Violence Act, 2005.”21
How objectification of women as a tool takes place and how the myth of the
insatiable male sexual desire is sustained and justified is evident in the following
words in this judgment: “Merely spending weekends together or a one night stand
would not make it a ‘domestic relationship’. ... If a man has a `keep’ whom he
maintains financially and uses mainly for sexual purpose and/or as a servant it
would not, in our opinion, be a relationship in the nature of marriage’”.22
Hence the woman who unknowingly married an already married man was
merely seen as a ‘keep’ and judicial protection was denied to her. Despite the
centrality of marriage in Indian society, marriage as a choice is not available to all
as there are certain conditions which are required to be fulfilled like those related to
age, health, socio-economic status, caste, gotra, religion, sexual orientation and so
on. It would then imply that all those who are not married would be denied certain
basic rights.
This implication is more pronounced in case of women since, unlike men who
have ‘natural’ rights over the ancestral property, the property rights of women are
often mediated by their marital status as accordingly their stake is recognized, that
is if not outrightly denied. And it is only when they have been projected as ‘helpless’
victims of a broken marriage, desertion, violence among others that they are
extended these rights and remedies within law.
Similarly, in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., the
female appellant claimed that she was married to the respondent according to the
customary rites and rituals of their caste and also had a child from that relationship.23
It was later found that the respondent was already married to a woman for the past
22 years. Both, the Gujarat High Court and the Supreme Court held that the appellant
was not legally wedded wife of respondent. There were eloquent remarks about
the plight of such women throughout the judgment, but the law ultimately was applied
in the manner in which hegemonic norms were barely disturbed. The normalization
of existing laws despite their biases is apparent as the court refused to enlarge the
scope of definition of the word wife by “introducing any artificial definition to include
woman not lawfully married in the expression ‘wife’.”24 In fact the ever changing
21
Ibid.
22
Ibid.
23
Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. AIR (2005) SC 1809
24
Ibid. The court refused to ‘widen’ the definition of wife as contained in Section 125 of the Code
of Criminal Procedure, 1973 which deals with “maintenance of wives, children and parents”.
aphorisms of the experts though passed off as the ‘truth’ are nothing more than
individual opinions very much ‘informed’ by personal prejudices and perceptions.
The cases discussed here throw light upon the fact that despite statutory provisions,
certain forms of domestic violence are still condoned as the ‘victim’ of that violence
does not come under the purview of that particular law as it emerges in the cases
related to bigamy, where the ‘second’ wife was denied judicial protection.
The importance attached to marriage is emphasized in Jamni v. State in which
a newly wedded wife was accused of killing her husband.25 The judges observed
that since the appellant was widowed and orphaned in her childhood, “such girls
never receive respect in Indian society unless they are remarried. In low birth
Hindu Families remarriage is permissible. In the present case, remarriage of the
accused appellant took place with the deceased who gave her respectability in
society and also gave her a ray of hope to live a deginified (sic) happy life.”26 The
man who bought himself a wife like a commodity is projected as her saviour as
otherwise her life would have been meaningless. And these things have been repeated
many times in the judgment. The judges further observed that “even birds and
animals understand and identify where their welfare lie. Therefore, it is impossible
to think that accused appellant being human being was not able to understand her
welfare by living as wife of her deceased husband.”27 That Rameshwar possessed
‘sufficient agricultural land together with a well’ was another reason which made
the judges deny the possibility of Jamni murdering her husband. The thought was
unthinkable for the judges as Rameshwar provided Jamni with a ray of hope ‘to live
a happy and deginified (sic) life and to bear children from his association which is
the wish of every woman.’28 The judges also thought it impossible that an able
bodied male could be killed by the blows of a woman at least when in his senses. In
this regard, Morgan claims that the ‘natural’ association of violence and masculinity
often results in denial of legitimacy to the violence committed by women.29
In fact the judges had their own suspicions about Gordhan, the brother of the
deceased as he “also had no wife and, therefore when he saw that his younger
brother has been married overlooking his claim and he himself is aged about 25
years then it might have come to his mind to kill his brother and to enjoy his newly
wedded wife.”30 Again marriage is regarded as essential for one’s existence and
the desire of the wife is not taken into account as she is to be ‘enjoyed’ by her
25
Jamni v. State of Rajasthan 1995 CRI. L.J. 3071
26
Ibid.
27
Ibid.
28
Ibid.
29
David H.J. Morgan, “Masculinity and Violence” in Jalna Hanmer and Mary Maynard (eds.), Women,
Violence and Social Control (London: MacMillan Press, 1987)at 184.
30
Jamni v. State of Rajasthan, supra note 25
brother-in-law. A female ‘criminal’ thus commits the dual crime of not only violating
criminal statutes but also gender norms and would be punished accordingly.
Whether normative or non-normative, the ultimate objective of heterosexual
intimate relationships appears to be aiming at having children. In Sujata Uday
Patil v. Uday Madhukar Patil the court expressed its concern that “whether the
marriage can be saved and the husband and wife can live together happily and
maintain a proper atmosphere at home for the upbringing of their offsprings.”31 In
Parveen Mehta v. Inderjit Mehta also, the court granted divorce as the wife
could not conceive even after 14 years of marriage along with “a stubborn attitude
and inexplicably unreasonable conduct”.32 All these were accepted as causes of
mental cruelty to the husband. For a woman, her primary role after getting married
is to prove her fertility and thus justify her continued existence in her matrimonial
home. That is how even women themselves gauge their worth, owing to internalisation
of patriarchal norms. The stigma attached to a woman’s inability to conceive can
sometimes be frustrating to the extent of pushing her to the verge of suicide. The
male is seldom held responsible for it, though the problem could be as much with
him as with the woman.
V. STEREOTYPES AND DISCURSIVE ENDORSEMENT

In contrast, in Neerja Saraph v. Jayant V.Saraph, the man being an NRI who
abandoned the wife after a brief period of marriage was the target of judicial ire.33
The judge observed, “The attraction of getting a groom and that too serving or
earning abroad without dowry, lures many especially from middle class. Even
otherwise parental insistence for Indian bride in the hope that their son is not lost
forever is not uncommon. Result, at times, is matrimonial alliance by a reluctant
husband to assuage the sentiments of his parents.”34 The judicial sympathy in this
case was with the girl who was seen as the victim. “Victim is the helpless, poor,
educated girl, normally, of a middle class family with dreams of a foreign land.
…..the marriage was performed with gusto befitting the status of both the families.”35
There is a sort of judicial admiration and endorsement of lavish marriages. She was
referred to as the ‘innocent girl’ for whom “it was loss of everything, her maidenhood,
status, service, dignity and peace. Her dreams stood shattered and she was reduced
to nothing.”36 Such generalizations reiterate the stereotype of women as extremely
emotional creatures who come to life only if they have a satisfying and long term
31
Sujata Uday Patil v. Uday Madhukar Patil (2006) 13 SCC 272
32
Praveen Mehta v. Inderjit Mehta AIR (2002) SC 2582
33
Neerja Saraph v. Jayant V. Saraph (1994) SCC (6) 461
34
Ibid.
35
Ibid.
36
Ibid.
conjugal relationship otherwise they are reduced to nothing. This is why Dhanda
suggests that “This conferral of precedent value to role stereotypes in judgments
necessitates cautious judicial endorsement of them.”37 The judges in this case were
concerned with providing “some practical solution to the disaster brought about by
him.”38 They did it by granting the right to maintenance in favour of the woman.
It emerges that judicial pronouncements help in perpetuation of gender role
and other stereotypes and lawyers also play a prominent role in this as they categorise
the various things associated with their client into necessary and unnecessary
according to the requirement of the case they are presenting before the court. In
Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal, Payal’s lawyer
vehemently denied the allegations made by the husband about her being an alchoholic
and claimed that ‘she was a homely, vegetarian, non-smoking, teetotaller and faithful
house-wife’.39 She was being projected as the ideal wife living well within the
definitions of womanhood and chastity. The references to the matrimonial
advertisement, which brought the couple together, also point to marriage being ‘the
medium through which transmission of resources, perpetuation of traditions and
social mobility was engineered.’40 It appears equivalent to buying a product from
the market as “His parents advertised for “homely non-medico” bride” and her
parents responded.41 The desire for homely wives is a double trap as women are
not allowed to work and as a result are constructed as parasites upon the familial
economic structure, since the tasks associated with ‘homemaking’ are considered
unproductive and uneconomical. Their relegation to the status of being dependents
is thus secured in a permanent manner.
As long as children are treated as property by the parents, girls are treated as
a burden and boys as ‘post-dated cheques’42, marriage (even if abusive) is regarded
as essential for existence and religion and custom continue ascribing a subordinate
status to brides and their families, little is expected to change.
VI. RE-PRODUCING THE ‘IDEAL’

In Samar Ghosh v. Jaya Ghosh, the Supreme Court claimed that the High Court
had erred in absolving the wife charged with committing mental cruelty towards the
37
AmitaDhanda, “Psychologising Dissent: Psychiatric Labeling and Social Control”, Amita Dhanda
and Archana Parasher (eds.), Engendering Law-Essays in Honour of Lotika Sarkar (Lucknow:
Eastern Book Co., 1999)at 328
38
Neerja Saraph v. Jayant V.Saraph (1994) SCC (6) 461
39
Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal (1992) SCC (3) 116
40
J.S. Tyagi, “Hierarchical Projections of Women in the Household: Brahmanical Perceptions
Recorded in the Early Grhyasutras 800-500 B.C”, 32(5-6) Social Scientist, 2004, at 4
41
Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal (1992) SCC (3) 116
42
M.S.A. Rao, Tradition, Rationality and Change: Essays in Sociology of Economic Development
And Social Change (Bombay: Popular Prakashan, 1972, at 142
husband and stressed that “the finding of the High Court that the respondent’s
refusal to cook food for the appellant could not amount to mental cruelty as she had
to go to office, is not sustainable. ….. The question was not of cooking food, but
wife’s cooking food only for herself and not for the husband would be a clear
instance of causing annoyance which may lead to mental cruelty.”43 One wonders,
if husbands can also be adjudged guilty of committing mental cruelty for not cooking
for their wives! The ideology of familialism through its concrete manifestation(s)
reproduces gender identity and its meaning. In the process, caring for family gets
labelled as a ‘natural adjunct of femininity’. Even sleeping in separate rooms in the
same house can be a ground for mental cruelty.
In the following judgments, judicial subjectivity is revealed in conflicting opinions
expressed by the judges in defining mental cruelty. The court has tried to define
mental cruelty in various cases but has also in the same vein tried to avoid arriving
at a “straight-jacket formula” for the same.
In Samar Ghosh v. Jaya Ghosh, the court firmly believed that “No uniform
standard can ever be laid down for guidance” yet the judges enumerated some
instances of human behaviour as yardsticks for dealing with the cases of ’mental
cruelty’ like:44
“(i) On consideration of complete matrimonial life of the parties, acute mental
pain, agony and suffering as would not make possible for the parties to live
with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it
becomesabundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live with
other party……..
(v) A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.”45
It appears that till the court is convinced that there has been enough torture
and suffering in a marriage for a prolonged period, the chances of getting a divorce
are minimal as living in ‘failed’ marriages are any day preferred to divorcees ‘out
on a prowl’ to disrupt societal (patriarchal) order!
Similarly, in V. Bhagat v. D. Bhagat, the Court observed “Mental cruelty in
Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the
other party such mental pain and suffering as would make it not possible for that
party to live with the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The situation must
43
Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
44
Ibid.
45
Ibid.
be such that the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party.”46
But in the same case, the court laid down that while deciding mental cruelty as
a ground for divorce, “regard must be had to the social status, educational level of
the parties, the society they move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another case. It is a matter
to be determined in each case having regard to the facts and circumstances of that
case. If it is a case of accusations and allegations, regard must also be had to the
context in which they were made.”47
Similar views were expressed by the Court in the case of GananathPattnaik
v. State of Orissa as the judge observed “The concept of cruelty and its effect
varies from individual to individual, also depending upon the social and economic
status to which such person belongs.”Cruelty” for the purposes of constituting the
offence under the aforesaid section need not be physical. Even mental torture or
abnormal behaviour may amount to cruelty and harassment in a given case.”48
In the case of Savitri Pandey v. Prem Chandra Pandey, the Court, construing
the question of ‘cruelty’ as a ground of divorce, made the following observations:
“Cruelty, however, has to be distinguished from the ordinary wear and tear of family
life. It cannot be decided on the basis of the sensitivity of the petitioner and has to
be adjudged on the basis of the course of conduct which would, in general, be
dangerous for a spouse to live with the other.”49
These generalizations and explanations of human behaviour can be interpreted
as an effort by the judges to justify their pronouncement within a consensual societal
framework of behavioural norms. Even slight deviations are seen as a challenge to
the principles which have been ‘commonly’ agreed upon. And by taking upon
themselves the responsibility of speaking on behalf of community, the judges re-
assert their authority as experts. Anne Worrall claims that by using their notions of
human nature as a parameter of expected and acceptable behaviour, the judges are
‘employing a procedural device which allows them to make sense of data which
have no inherent meaning or coherence.’50 Such generalizations thus mean negation
of differences and specificities. Since the judges often tend to justify their
pronouncements in the name of ‘the community’, it serves the purpose of absolving
46
V. Bhagat v. D. Bhagat (1994) 1 SCC 337
47
Ibid.
48
Gananath Pattnaik v. State of Orissa (2002) 2 SCC 619
49
Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73
50
A. Worrall, Offending Women: Female Lawbreakers and The Criminal Justice System (London:
Routledge, 1990)at 18
them of their responsibility since they do it ‘for’ the community and it also reasserts
their position as representatives of the community. The notion of ‘the community as
a homogeneous entity does not negate differences within ‘the community’ but
assumes that there exists a general consensus about the interests of the community
and in this manner these differences are rendered meaningless.’51 Is justice a
‘reflection’ of this consensus? But what about the mechanism of this consensus
building?
VII. THE POWER OF DISCOURSE

The above analyses provides scope for proposing certain arguments which might
be applicable for both the categories of women, but more so for those accused of a
certain crime. The people who come into contact with the criminal or civil justice
system, engage lawyers in order to ensure that their case is well presented for a
favourable judgment. Worrall rightly suggests that thereafter their account is
‘muted’. 52 The agency ascribed to the offender/the accused/ petitioner gets
transferred to the authorized experts of the legal system. The process involves not
merely disqualifying the defendant/petitioner as a speaker but also ‘normalization’
of the defendant/petitioner or redefining everything in the desired manner. Thus
when required to defend a female accused, the lawyers generally seek refuge in
evoking gender stereotypes. And the ‘harm’ done is undone as she is returned to
her ‘expected’ gender role. Ania Wilczynski rightly laments that criminality in women
is rarely, if ever, seen as a rational reaction to life stresses, or as a response to
social, political or physical inequalities, as is often cited in case of men.53
Accordingly, the agency of these accused/petitioner as legal subjects would be
decided depending upon the acceptance or rejection of their culpability and
responsibility. They perform the subjectivity chosen for them by their lawyer in
order to be accepted by the penal discourse in the ‘desirable’ manner. The female
accused thus performs the act of being a conformist despite being a deviant.
The portions of judgments cited in the study are not reflections upon the fairness
or otherwise of respective judges. It is the working of the system which is being
commented upon. The judges themselves are at times rendered ‘powerless’ by the
system as they give the ‘expected’ judgment rather than the one they believe in.
This ‘powerlessness’ can be explained through Jackson’s concept of ‘co-
referentiality’ in legal discourse which refers to the simultaneous invoking of
51
Id. at 15.
52
Id., at 21.
53
Ania Wilczynski, “Images of Women Who Kill Their Infants: The Mad and the Bad”, 2(2)Women
and Criminal Justice, 1991, at 72
54
Bernard Jackson, Law, Fact and Narrative Coherence (Liverpool: Deborah Charles Publications,
1988) at 132
arguments and individual laws as required for a particular matter, and the reference
to ‘the law’ which is objective, neutral, universal and timeless.54 But this does not
absolve them of their individual responsibility towards the individuals whom they
assess, judge and categorise. After all, judges exercise their authority with
institutional backing and whatever they say about law is considered authoritative
and contributes to the growth of the judicial discourse.
It is not to argue that judges should not have the power of discretion as it
sometimes helps in overcoming the inherent rigidity of a particular law. The law,
despite its formal rigidity, claims to be ‘flexible’ by providing scope for discretion
through interpretation and thus it keeps pace with ‘changing societal requirements’.
But this flexibility also does little to change the existing balance of power in our
patriarchal society since “Once again, these multiple interpretations, far from
demonstrating the elasticity of the law, point to precisely the opposite – the inevitable
movements within legal discourse to codify, fix and regulate meaning.”55 This paper
concurs with Foucault as it is evident that “the sentence that condemns or acquits is
not simply a judgment of guilt, a legal decision that lays down punishment; it bears
within it an assessment of normality and a technical prescription for a possible
normalization. Today the judge – magistrate or juror – certainly does more than
‘judge’.”56 (emphasis in original) The ‘accumulated wisdom’ of the judges about
both female accused and victims stands exposed as an aggregation of ‘common
sense’, ‘desire for certitude’ and power derived from the system (but not always
the law).57
VIII. CONCLUSION
Till the time the power to define and control remains in the hands of a dominant
class of people actively engaged in marginalizing ‘others’ on different bases, the
effects of law would remain the same. Law is a product of, and a part and parcel
of, the power structure. Thus, rather than targeting individual laws, we need to
dismantle the oppressive structure which facilitates the formulation and working of
such laws.
The paper also foregrounds that legal norms are essentially marriage-centric
and those outside normative intimate relationships are seen as deviants and treated
accordingly. The implications are more severe for women living in non-normative
relationships as they are stigmatized within society and even the law seldom comes
55
Nivedita Menon, supra note 2, at 127
56
M. Foucault, Discipline and Punish: The Birth of the Prison, translated by Alan Sheridan (New
York: Vintage, 1995) pp.20-21
57
The phrase ‘desire for certitude’ has been borrowed from Rajashwari Sunder Rajan, The
Scandal of the State : Women, Law and Citizenship in Postcolonial India (Delhi: Permanent
Black, 2003) at 82
to their rescue. Even in these relationships, women suffer the same subordination
and oppression since their sexuality, reproductive capability and labour is still under
patriarchal control. Yet, it is not that the women involved in these cases emerge as
merely ‘impotent’ victims of male oppression. Such projections in a way assert the
stereotype of the virile male and passive female – and lead to denial of her
‘responsibility, culpability, agency and often her rationality as well’.58
58
Belinda Morrissey, When Women Kill: Questions Of Agency And Subjectivity (London: Routledge,
2003) at 25
ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 75-94
Protection of Traditional Knowledge

through Intellectual Property Rights:
Challenges and Expositions
Neeru Nakra *
Abstract: This is the era of knowledge economy and technology boom.

Still, the efforts have always been made to grant protection to the legacy
of traditional knowledge. The intellectual property rights are based on
monopolization of the system; however, traditional knowledge requires
collective protection. India has endeavoured to take steps towards
protection of traditional knowledge, without prejudice to the rights of
indigenous people. It is evident from the creation of task forces, working
groups, funding of private and institutional projects on traditional knowledge,
conducting conferences etc.
The protection of traditional knowledge becomes a contentious issue in

contemporary intellectual property regime. With the advancement in
biotechnology, the developed countries demand access to biogenetic
resources and associated traditional knowledge of bio rich countries for
obtaining headway in bio prospecting research, drug discovery and patents.
Notwithstanding the adoption of Agreements and Conventions, the cases
of bio piracy are on rise. There is a great demand from the indigenous
communities of developing and under developed countries to protect their
traditional knowledge from misappropriation.
Although India has been empathetic towards the protection of traditional

knowledge, yet the present Indian legal regime in the field of traditional
knowledge is inadequate. The growing interests of indigenous people and
local traditional communities in owning, controlling and accessing
documentation of their cultures held by museums, libraries and archives
raises a number of IP issues. The need of the hour seems to be a sui
generis policy for the protection of traditional knowledge.
*
Professor, Vivekananda Law School, Vivekananda Institute of Professional Studies, GGSIPU
(India)
This paper aims at giving a comprehensive overview of the interface

between traditional knowledge and IPRs in national perspective, challenges
posed by monopoly rights in contrast with collective right.
Key Words: Traditional knowledge, Intellectual property, Sui generis

protection, Traditional Knowledge Digital Library, Geographical indications,
Plant varieties.
I. INTRODUCTION
India has always been a land of cultural diversity and traditional knowledge, popularly
known as Dadi-Nanikenuskhe. The Haldi(Turmeric) is a wonderful antiseptic, Amlais
good tonic for health, immunity system and many more form the underlying basis
for traditional knowledge which belongs to the indigenous communities and their
right to self-determination. But we have ushered in the era of knowledge economy
and technology boom. Still, the efforts have always been made to grant protection
to the heritage and traditional knowledge. With the upsurge in the intellectual property
rights concern worldwide, it has become imperative to look deep into the protective
measures for traditional knowledge. The intellectual property rights are based on
monopolization of the system because the exclusive rights are granted to the creators
to bear the fruits of their hard work. The traditional knowledge, however, belongs to
the communities collectively and kept passing on the generations to generations and
it requires collective protection.
India has endeavoured to take steps towards protection of traditional knowledge,
without prejudice to the rights of indigenous people.1 It is evident from the creation
of task forces, working groups, funding of private and institutional projects on
traditional knowledge, conducting conferences etc. The creditable step taken by
India to protect traditional knowledge is to create Traditional Knowledge Digital
Library (TKDL) serving as a tool to prevent misappropriation of traditional
knowledge by providing the database of the traditional knowledge.
This paper aims at giving a comprehensive overview of the interface between
traditional knowledge and IPRs while examining the bio piracy cases, gray area in
the protection of traditional knowledge and complications in attempting to protect
traditional knowledge within the prevailing regime of IPRs or any combination thereof.
It also seeks to analyse the international legal framework and national efforts to
protect traditional knowledge.
1
Indigenous people are people defined in international or national parlance as having a set of
specific rights based on their historical ties to a particular territory and their cultural or historic
distinctiveness from other populations that are politically dominant. For details, see Indigenous
People Literature, available at:www.indigenouspeople.net.
PROTECTION OF TRADITIONAL KNOWLEDGE THROUGH INTELLECTUAL PROPERTY RIGHTS: ... 77
II. TRADITIONAL KNOWLEDGE: CONCEPT

Traditional Knowledge (TK) is generally associated with biological resources and
is invariably, a component of such a biological resource. TK has the potential of
being translated into commercial benefits by providing leads/cluesfor development
of useful practices and processes for the benefit of mankind.2
Traditional knowledge is a living body of knowledge that is developed, sustained
and developed from generation to generation within a community, often forming
part of its cultural or spiritual identity. In other words, TK is understood as knowledge,
knowhow skills, innovations and practices; that are passed between generations in
a traditional context and that forms part of the traditional lifestyle of indigenous and
local communities who act as their guardian or custodian.3 TK can be, for example,
agricultural, environmental or medicinal knowledge and knowledge associated with
genetic resources.4 The traditional knowledge about the characteristics of the local
flora and fauna has accrued over the centuries, and generally this information is
often valuable to the pharmaceutical companies.
Traditional knowledge means an information that people in given community
have developed over time and continue to develop based on experience and adaptation
to a local culture and environment. The sustenance of the community and continuity
of the survival of the generic resources, in fact, depends on the traditional knowledge
and its use. The traditional knowledge is generally regarded as being in the public
domain system and for free use by all by the conventional property system. TK is
collective in nature and at times termed as the property of the entire community.
The main purpose of the advocacy for the protection of the traditional knowledge is
to give impetus to the intellectual innovation and creativity.
The protection of traditional knowledge becomes a contentious issue in
contemporary intellectual property regime. With the advancement in biotechnology,
the developed countries demand access to biogenetic resources and associated
traditional knowledge of bio rich countries for obtaining headway in bio prospecting
research, drug discovery and patents. Notwithstanding the adoption of various
agreements and conventions, the cases of bio piracy are on rise. There is a great
demand from the indigenous communities of developing and under developed
countries to protect their traditional knowledge from misappropriation. In recent
years, indigenous people, local communities and governments- mainly in developed
countries, have demanded IP protection for creativity and innovation, which under
2
Hon’ble Mr. Justice Vijender Jain on “Safeguarding the Traditional Knowledge in India,” in Asia
Pacific Jurist Association (APJA) Seminar held on 28.04.2008, available at:
http://highcourtchd.gov.in/sub_pages/top_menu /about/events_files/apjaspeech.pdf
3
Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions, WIPO, 2015, at 13
the conventional IP system are generally regarded as being in the public domain
and thus free for anyone to use.
The various controversies, however, on bio piracy and cases fought against
the patents based on neemand turmeric have put forth the questions of interface
between traditional knowledge and intellectual property rights. Although India has
been empathetic towards the protection of traditional knowledge, yet the present
legal regime in the field of traditional knowledge is inadequate. The growing interests
of indigenous people and local traditional communities in owning, controlling and
accessing documentation of their cultures held by museums, libraries and archives
raises a number of IP issues. The need of the hour seems to be the sui generis
policy for the protection of traditional knowledge.
It is relevant here to present the concept of intellectual property in brief.
Intellectual property law is that area of law which concerns legal rights associated
with creative effort of commercial reputation and goodwill. The rationale behind its
protection is not only encouraging the creativity by imparting due recognition on the
creator but also to give an impetus to the industrial and economic development of a
country. The prosperity achieved by developed nations is the result of exploitation
of their intellectual property.
Intellectual property was, generally, considered to be of two kinds i.e., industrial
property including patents, trademarks, undisclosed information, integrated circuits
etc. and Copyright. The concept of intellectual property was disintegrated into
separate and independent classifications by Trade Related Aspects of Intellectual
Property Rights (TRIPS) and now seven kinds of intellectual properties are: Patents,
Copyright, Trademarks, Geographical Indications, Trade Secrets, Industrial
Designs and Integrated Circuits (Topographies).Now the Plant varieties have
also become the area of intellectual property. It seems that the law makers have
realized that the food for thought can only be there when the need of food for
stomach is fulfilled.
III. EDGE BETWEEN TRADITIONAL KNOWLEDGE AND INTELLECTUAL

PROPERTY RIGHTS: INTERNATIONAL PERSPECTIVE
One of the major concerns of the developing countries is the process of globalisation
and its impact on the policies, the economy, the social milieu and the society as a
whole of a nation. The need of the hour is to protect these fragile knowledge systems
through national policies and international understanding linked to intellectual property
rights and preserving the traditional knowledge. Misappropriation of traditional
4
Examples of traditional knowledge may include: knowledge about traditional medicines, traditional
hunting or fishing techniques, knowledge about animal migration patterns or water management,
to mention a few.
knowledge and bio piracy erode the rights of indigenous people and adversely affect
conservation and sustainable use of biodiversity and associated traditional knowledge.
Ecological and genetic multiplicity together makes the very foundation of existence.
Traditional knowledge, on the other hand, is the result of intellectual activity in a
traditional context. This knowledge is transmitted through songs, stories, rituals and
legends.5
The Intellectual property rights (IPRs) regime needs to be fine-tuned in such a
way that it can bolster the cultural identity of indigenous communities and give them
a greater say in managing the same. The linkage between IPRs and traditional
knowledge (TK) is of recent origin. Biodiversity refers to the “variability of the
living organisms from all sources and ecological complexes of which they are the
part and includes diversity within species or between species and of ecosystems.”6
The relationship between indigenous/traditional knowledge and intellectual property
rights is complicated contemporary legal problem.
The efforts were taken up by the international bodies like, World Trade
Organization (WTO), World Intellectual Property Organization (WIPO), UNCTAD,
UNESCO etc. in the direction of protection of traditional knowledge.
Convention on Biological Diversity (CBD)

The CBD was the result of discussions at Rio De Jenerio 1992 United Nations
Conference on Environment and Development Programme. The CBD is a significant
international instrument in the development of the rights of indigenous people. It
aims to provide for the equitable sharing of the benefits denied to them. It aims to
respect, preserve and maintains knowledge, innovations and practices of indigenous
and local communities; promote their wider application with the approval and
involvement of holders of such knowledge.
The Nagoya Protocol

The Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Benefits arising from their Utilizationto the CBD is a supplementary
agreement to CBD. It provides for a transparent legal framework for the effective
implementation of the objective of equitable benefit sharing arising out of utilization
of genetic resources, thereby contributing to the conservation and sustainable use
of biodiversity.7
5
Raju NaraynanSwamy, “Protection of Traditional Knowledge in the present IPR Regime: A Mirage
or Reality,” LX (1) Indian Journal of Public Administration, 2004, pp.35-36
6
The Biological Diversity Act, 2002, Section 2(b)
7
Available at:https://www.cbd.int/abs/about/
Protection of traditional knowledge through sui generis system

The absence of uniform norms led to the setting up of an Intergovernmental
committee on intellectual property and genetic resources. The WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore8was established by the WIPO General
Assembly in September, 2000 to facilitate access to generic resources and benefit
sharing; the protection of traditional knowledge and the protection of folklore.
Some countries have developed sui generis legislations for the protection of
traditional knowledge.
Panama has introduced law on the special IP regime upon collective right of
indigenous communities for the protection of their culture, identity and traditional
knowledge of community. It protects the collective rights by registering them without
any time bond.
Philippines government enacted the Indigenous Protection Act, 1997 which
aims at protecting right of indigenous people by recognizing their cultural diversity
and community’s intellectual property. The other legislation is the Community
Intellectual Right Protection Act, 2002. It recognises the original right of indigenous
people and local communities over plant, genetic resources, traditional medicines,
agriculture method which have been discovered by them. After registration, the
community automatically becomes the general owner of traditional knowledge.
Bangladesh adopted the Biodiversity and Community Knowledge
Protection Act, 1999 for the protection of indigenous community and biodiversity
of the country. This Act not only protects the rights and TK of the indigenous
community but also prohibits transfer of any traditional knowledge without prior
information and the consent of the indigenous community.
In South Africa, the department of trade and industry drafted the Policy
Framework for the Protection of Indigenous Traditional Knowledge through
the Intellectual Property System and the Intellectual Property Laws Amendment
Bill, 2008. The Bill provides that the law of trademarks/geographical indications
may be able to provide protection of certain name associated with traditional
knowledge.9
The intellectual property rights regime has undergone sea change after the
Trade Related Aspects of Intellectual Property Rights (TRIPS) 1994 worldwide.
8
Available at:www.wipo.int
9
“Intellectual Property Laws Amendment Bill”,available at: www.info.gov.za/view/DownloadFile
Action?id=81111as cited in Suman Bimbra, dissertation on Protection of Traditional Knowledge
under Intellectual Property Rights (2012)
IV. TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY RIGHTS:

NATIONAL PERSPECTIVE
The importance of traditional knowledge of the indigenous communities and the
inadequacy of existing law to protect the same is a worldwide concern. With this
realised importance, emerges the need to protect this knowledge and to prevent its
misappropriation. Protection of the traditional knowledge of the local and indigenous
communities seems to be one of the most contentious and convoluted issues. The
historical development of the protection of intellectual property in the wake of
industrial revolution and its subsequent jurisprudential justifications based on individual
private property rights, pushed the traditional knowledge and innovative practices
based on it outside the purview of the intellectual property protection regime. In the
past few years, ample amount of discussions and debates on the subject of protecting
traditional knowledge as intellectual property has been occurring at the World Trade
Organisation (WTO), Conference of Parties at the Convention on Biodiversity, etc.
A few national governments in these discussions have embraced the view that
traditional knowledge needs to be secured legitimately, and they have condemned
the formal IPR framework in its available structure for not just neglecting to give
satisfactory protection to traditional knowledge additionally for legitimizing its
misappropriation.
Although legal protection to the traditional knowledge has not been imbibed by
the Indian law makers initially, yet after the TRIPS Agreement and the Convention
on Bio-diversity grabbed their attention to a culturally rich, but ignored area of TK.
The current IPR system cannot protect traditional knowledge for three reasons:
privatization of ownership; protection is time bound and restrictive interpretation of
invention.
V. LEGISLATIVE EFFORTS TO GRANT PROTECTION TO TK

The Protection of Plant Varieties and Farmer’s Rights Act, 2001
To protect the traditional knowledge of the farming community, the Act facilitates
the registration of ‘Extant variety’ and ‘Farmer’s variety.’ The latter is defined as a
variety, under the Act, which has been traditionally cultivated and evolved by the
farmers in their fields and possess the common knowledge. On the conceptual
level, it is doubtful whether the protection of farmers’ varieties under IPRs system
would have any positive impact on their conservation or stimulate breeding.
Nevertheless, under this approach the protection of TK helps meet society’s broader
objectives for the conservation of the environment, sustainable agriculture and food
security.10
The Indian sui generis legislation recognises and envisages rewarding the
contributions of both the commercial plant breeders and farmers in plant breeding
activity. The statute admits the existing farmers’ varieties to the category of extant
varieties and provides for the registration of new varieties developed by the farmer
breeders on their own.11 This legislation also acknowledges that conservation,
exploration, collection, characterization and evaluation of plant genetic resources
for food and agriculture are essential to meet the goals of national food and nutritional
security as also for sustainable development for agriculture not only for the present
but also for future generations.12
This concern gives rise to the question of protecting traditional knowledge
under IPR regime. The main criticism of protecting traditional knowledge with IPR,
however, is that IPR leads to the commodification of knowledge; it treats knowledge
as a commodity with economic value, which is far way different from the perspective
of Indigenous People, who treat their knowledge as pious and sacred.
The Geographical Indications of Goods (Registration and Protection)

Act, 1999
This Act intended to protect the valuable geographical indications of our country.
The protection, however, is available only to registered authorised users.The Act
and the rules, however, neither adequately addressed the issue of protection of
traditional knowledge associated with the geographical indication nor ensured that
only the community involved is going to use the geographical indication since the
protection is limited to goods and the appellations of origin attached to them but the
traditional knowledge has its own value as treasure of knowledge expanding to
traditional cultural expressions like folklore and genetic resources which cannot be
addressed by the Act. As a result, the Act will not enable the local and indigenous
communities to protect their traditional knowledge.
The Patents (Amendment) Act, 2002

It is a matter of fact that the biological materials are closely associated with the
traditional knowledge, but the Patents Act specifically excludes the patent rights of
10
Carlos M Correa, “Traditional Knowledge and Intellectual Property: Issues and Options Surrounding
the Traditional Knowledge”, A Discussion Paper , available at: www.geneva.quno.info/pdf/
tkmono1.pdf.
11
R.R.Hanchinal, “Providing Intellectual Property Protection to Farmers’ Varieties in India underthe
Protection of Plant Varieties and Farmer’s Rights Act,2001, at 11
12
S.K.Tripathi, “Traditional Knowledge: Its Significance and Implications,” 2(2) Indian Journal of
Traditional Knowledge, 2003, pp.99-106
traditional knowledge per se, however, granting the monopoly rights to the new
products based on traditional knowledge. The Act with all the amendments does
not provide a legal right of the communities to their traditional knowledge.
Nevertheless, recently amended Indian Patent law contains provisions for mandatory
disclosure of resources and biological materials used in the invention while applying
for the grant of patent under the Act. Apart from this, the non-disclosure of these
materials serves as a ground for pre and post grant opposition and revocation of
patents if granted. To further strengthen these provisions, a new provision has been
added to exclude innovations which are based on traditional knowledge or aggregation
or duplication of known properties of traditionally known components from being
patented.13
The Indian Biological Diversity Act, 2002

This Act was enacted by the Indian Parliament to give effect to the Convention on
Biological Diversity (CBD). The CBD offers opportunities to India to realize the
benefit of these resources. The legislation addresses the basic concerns of collection,
utilization and access to biological resources and knowledge and benefit of sharing
out of such access.The patenting of Neem, Basmati and Turmeric by foreign
companies gave rise to hue and cry in India and overseas and led to several initiatives
in India, such as documentation of traditional knowledge.14 The underlying policy of
this Act is “….to provide for conservation of biological diversity, sustainable
use of its components and equitable sharing of the benefits arising out of use
of biological resources and for matters connected therewith or incidental
thereto.”
In spite of the fact that this Act creates three tier system15 for the implementation
of its purpose and created funds also to check the alarming increase of bio piracy
and restrict bio-based trade, there is no express mention of ‘Protection of traditional
knowledge’ but impliedly used.
Biological Diversity Rules, 2004

Section 62 of the Biological Diversity Act, 2002 confers on the Central
Government, in exercise of its powers, to organise comprehensive programmes on
conservation of biodiversity, sustainable use and benefit sharing; to build database
of biological resources and the other administrative powers.
13
Id.,at 103
14
People’s Biodiversity Registeries (PBRs)
15
National Biodiversity Authority (NBA); State Biodiversity Board (SBB) and Biodiversity Management
Committee BMC) at the local level created for the purpose of promoting conservation, sustainable
use and documentation of biological diversity, preservation of habitats, chronicling of knowledge
relating to biodiversity, management and conservation of heritage sites, compensation and
rehabilitation and socio-economic development of areas.
The Schedule Tribes and other Traditional Forest Dwellers (Recognition

of Forest Rights) Act, 2006
This Act recognises the rights of forest dwellers Scheduled Tribes and other traditional
forest dwellers’ right of access to biodiversity and community right to intellectual
property and traditional knowledge related to biodiversity and cultural diversity.
Apart from these legislative efforts to protect TK, the Trade Marks Act, 1999;
The Copyright Act, 1957 and the Designs Act, 2000 can also be used to protect the
traditional knowledge only in the cases where it falls within the prescribed categories
of these Acts.
IPR Policy for Kerala, 2008

The policy has been adopted to give protection to the traditional knowledge of
God’s own country, Kerala. The objectives of the policy are:
(1) To Introduce a Legal arrangement for the protection of traditional
knowledge and biodiversity associated with such knowledge, given the
fact that traditional knowledge forms the basis of livelihoods of many TK
practitioners and the absence of any legal property rights on such knowledge
may render an opportunity for the private appropriation of the Traditional
Knowledge by multinational corporates.
State proposes to commit all traditional knowledge, including traditional
medicines, the practice of which sustains livelihoods of many, to the realm
of “Knowledge Commons” and not to the “Public Domain”. While the
Policy envisages creating property rights on traditional knowledge, all the
right holders will be deemed to be holding their rights under an obligation
that they shall permit others the use of the knowledge in their possession
for non-commercial purposes.
(2) Setting up of a Supervisory Council on Intellectual Property (SCIP) to
provide overall supervision in matters relating to intellectual property rights
with Chief Minister as its Chairman and Law Minister as its Vice-Chairman.
SCIP will help any potential patent applicant who asks for its assistance to
prepare proper patent applications. It will disseminate knowledge in the
state about intellectual property rights.
(3) To declare the stand of the Government with regard to the ownership of
Intellectual property rights over the outcome of research in state
government-funded and state government-aided institutions, especially given
the current trend of outsourcing from the west.16
16
Available at: http://spicyip.com/2008/06/keralas-ipr-policy.html
VI. INTERFACE BETWEEN TRADITIONAL KNOWLEDGE AND

INTELLECTUAL PROPERTY
The relationship between indigenous/traditional knowledge and intellectual property
law is a complicated contemporary legal problem.
Intellectual property is a monopolistic right given for a limited period. On the
other hand, traditional knowledge belongs to indigenous communities emerging as a
collective right and creating it for ages. The main purpose of the advocacy for the
protection of the TK is to ensure the intellectual innovation and creativity embodied
in the TK is not wrongly used. Intellectual property rights may be recognised and
exercised for exclusive rights on the protected TK.17
Some case studies reflecting interface between TK and IPRs

AVEDA and ownership of the word ‘Indigenous’
In 2006, the cosmetic corporation, AVEDA, released a range of skin products under
the name ‘Indigenous’ and used it as a trade mark for the marketing of the new line
of products. This provoked a strong negative reaction from the indigenous groups
around the world. The bone of contention was that such a significant word, politically
uniting historically marginalized and excluded groups of people throughout the world,
could be isolated and utilized by a cosmetic company as a trade mark for the purpose
of economic profit. As a result of these reactions, AVEDA decided to drop the
“Indigenous” product line and discontinue the use of trade mark. AVEDA was
encouraged to appreciate that using the word “Indigenous” on a commercial product
in order to derive a market advantage was disrespectful to indigenous people who
struggled for recognition of rights and self-determination.
In an effort to sensitize to the ethical issues, the indigenous people raised the
questions of benefit sharing with the corporations. AVEDA established a range of
partnerships with indigenous groups in Australia and America. AVEDA also
established an NGO (Tribal Link Foundation) that funds the participation by indigenous
people at UN Permanent Forum on indigenous issues and other contexts where
indigenous people are negotiating intellectual property rights.18
17
Md. RazadurRahaman, “Protection of Traditional Knowledge and Traditional Cultural Expressions
in Bangladesh, 20 (3) Journal of Intellectual Property Rights, 2015, pp.164-171, at 164
18
Statement on discontinuation of ‘Indigenous’ product line and trade mark, Press release, AVEDA,
AVEDA Announces Discontinuation of Indigenous Product Collection, 2003,available at: http://
aveda.aveda.com/about/press/indigenous.asp as cited in Dr. Jane Anderson, “Indigenous
Traditional Knowledge and Intellectual Property”,Centre for Study of the Public Domain, 2010
Registration of Batik Design in Indonesia

Historically, the Indonesian batik artistic community has been based in Solo, Java.
The Indonesian government considers batik to be a traditional art form and over the
last five years has been working on developing the new legislation to protect
“Traditional Arts.” Batik is considered to be a traditional art because design and
knowledge have been passed down for centuries from generation to generation.
The current efforts to develop new legislation to protect Indonesia’s traditional arts
are in response to the increased reproduction of batik styles in other regions of
Indonesia and also in neighbouring countries. In order to protect the traditional batik
design from misuse and misappropriation, the local government of Solo has developed
a design patent programme for the traditional designs which means that many batik
motifs will be registered at the local government office and the permission to use
any design will have to be sought from the office.
This is a defensive intellectual property strategy. The design patent serves as
a preventive mechanism for unauthorised use of batik design. The ownership of the
traditional design upon registration, along with the fee, would be assigned to the
company or the family of producers who have registered the motif.19
Traditional Knowledge and Bikram Yoga
Bikram Chuadhary is the founder of a Yoga technique known as Bikram Yoga.The
instructors across the United States must obtain license from him in order to teach
the yoga sequence in Bikram yoga. Bikram Chaudhary has aggressively enforced
claims of copyright and trade mark protection including the claim that the sequence
of asanas in Bikram’s beginning Yoga class constitutes his copyright. Many yoga
practitioners objected to the idea that Choudhary can have exclusive control over a
series of postures derived from Indian traditional knowledge and practices.
Choudhary first registered the copyright for Bikram’s Beginning Yoga Class
in 1979 and subsequently filed copyright for various books as well as certain
sequences claiming that the US office recognises his exclusive right to the series of
postures and breathing exercises. While Choudharyrecognises the fact that the
asanas are generally in public domain, but he claims that his sequence constitutes
copyrightable compilation of material. He argues that he has exerted specific skill
and labour in the selection and assemblage of the asanas into a specific sequence.
Despite all disputes, in USA, Choudhary is still free to take legal action against the
other yoga practitioners and trainers in United States.
19
Charles Knobloch& Devi Savitri Reni, “Using Batik Mark as a First Step to extend Protection of
Indonesian Javanese batik Patterned Textile in Foreign Countries”, 2009, available at: http://
www.usptclaw.com/pdfs/Batikmark_Article.pdf
20
Supra note 18
There is, however, current lobbying for government representatives in India to

mount an effective legal challenge against Bikram Yoga arguing that the copyright
in yoga asanas sequence constitutes misappropriation of traditional knowledge unique
to India.20
The Neem Case
The Neem case (Patent No. EP436257) was a landmark case where for the first
time a patent based on traditional knowledge of a developing country was successfully
challenged. The moot point in this case was whether a multinational corporation
could usurp traditional knowledge through patents. It would lead to the erosion of
the diversity of the neem tree and as a result making the neem seeds costlier to
make it difficult for the poor farmers to lay their hands upon the seeds. Since the
medicinal properties of neem tree as Indian traditional knowledge was in public
domain for centuries, therefore, neither novelty nor inventive step was there. The
Patent, therefore, was revoked by European Patent Office in 2000.
The Turmeric Case
Turmeric (Haldi) is known for its medicinal properties throughout Asia to treat
stomach ailments, as a good antiseptic and even in beautifying agent for the times
immemorial. The patent was granted in United States. The Indian Council of
Scientific and Industrial Research (CSIR) requested the U.S. patent and Trade
Mark Office to re-examine the patent on the ground that turmeric has been used
for thousands years for healing wounds and rashes and therefore, its medicinal use
is not novel. USPTO has revoked the patent in August, 2002.
The Basmati Case(US Patent No. 5663484)
Basmati is a variety of rice, slender, aromatic long grain, from Punjab (India and
Pakistan). This case was concerned with the protection of traditional knowledge as
well as geographical indications. The problem arose in 1997 when the USPTO
granted patents for three new strains which could be sold under the name of
“Basmati” referring to aromatic long grain, from Punjab. After the protest by India
and Pakistan against the use of Basmati, the USPTO disallowed the patentee from
using the name Basmati, not being generic but famous basmati rice from India and
Pakistan. Apart from this, in 2004, after a vigorous campaign worldwide, European
patent office revoked Monsanto patent on the Indian variety of wheat and has
given India the joy of fourth consecutive victory against bio-piracy and to protect
our ancient traditional knowledge.21
21
Foreign patents based on Amla, Pudina and Jeevani were also successfully challenged and
India once again could protect its cultural heritage.
VII. INDIA’S INITIATIVE TO PROTECT TRADITIONAL KNOWLEDGE

THROUGH DATABASE
Apart from various legislations, India has taken a breakthrough initiative by
establishing the database for preserving and protecting the traditional treasure of
India. In India, after the neem patent controversy22, the urge to protect the traditional
knowledge has gained importance. India has taken an initiative through Traditional
Knowledge Digital Library (TKDL), a collaborative project of Council of Scientific
and Industrial Research (CSIR) and Department of Ayurveda, Yoga & Naturopathy,
Unani, Siddha and Homeopathy (AYUSH), which helps the examiners of Patent
Offices to search for any information regarding substance or practice while granting
patents and they can dismiss the grant of patent, if the substance or practice is
already there in the TKDL list as Indian traditional knowledge. Critics have stated
that this documentation could itself lead to misappropriation of India’s traditional
knowledge.23
India has come out with the most comprehensive database Traditional
Knowledge Digital Library (TKDL). It holds 36000 formulations utilized in Ayurvedic
medicinal preparations and practice. The TKDL categorizes the knowledge in ways
that allow it to be linked to International patent classification systems. The information
is available in English, French, German, Spanish and Japanese for an easy access
and understanding.24 The outcome of TKDL has been an encouraging one and it
has achieved certain milestones out of which a few are mentioned hereunder.
Documentation of traditional knowledge is commendable effort in order to give
recognition to knowledge holders. But it is merely information and may not enable
benefit sharing arising out of the use of such knowledge, unless it is backed by
some mechanism for protecting the knowledge.
22
US patent No 4946681 and US patent No 5124349 were granted by the US Patent Office to W.R.
Grace for extraction and storage processes of Neem, which is traditionally used in India since
ages for its medicinal properties. US Patent Office counts only published work on inventions as
prior art. However, there was a lot of hue and cry against these grants and US Patent Office
Policies. India claimed that US is stealing their knowledge.
23
ZoyaNafis, “India: Protecting Traditional Knowledge as Intellectual Property” Lex Orbis, available
at: http://www.mondaq.com/india/x/344510/trade+secrets/protecting+indian+traditional+
knowledge+as+intellectual+property
24
Few Major Milestones of Traditional Knowledge Digital Library25

Based on the TKDL evidences, application no. EP1901701 (Ott, 15-May-2014 CSIR
David M., 777 Panoramic Way, Berkeley, CA 94704 / US) for
“Personal care and medicinal products incorporating bound
Organosulfur groups”, is deemed to be withdrawn. Application
was closed on 14-Aug-2014.
Based on the TKDL evidences filed for the application no CA 22-May-2014 CSIR
2574518 entitled “Pharmaceutical composition and non-
dependence coffee comprising edible Carboxylic Acid and/or
its Acid Salt and Coffeine” SHIAO, SHIN-JEN (Taiwan), CIPO
has declared the application as ‘Dead’.
Nanyang Polytechnic / Singapore has amended the claims of 06-Jun-2014 CSIR

the application no EP2416793entitled “A plant extract
comprising statins and preparation techniques and uses
thereof” based on the TKDL evidences.
Mimozax Co., Ltd. , 4291-1, Miyauchi Hatsukaichi-shi, 17-Jun-2014 CSIR

Hiroshima 738-0034 / Japan has amended the claims of the
application no EP2052731 entitled “Composition for preventing
and/or treating Itching containing component originating in
the Bark of Tree Belonging to the Genusacacia” based on the
TKDL evidences.
New Chapter, Inc. / US has amended the claims of the 07-Jul-2014 CSIR
application no EP2435057 entitled “Compositions and methods
for modulating lipid composition” and application was refused
on 17.06.2015 based on the TKDL evidences.
Laboratoires Expanscience / France has amended the claims of 22-Jul-2014 CSIR

the application no EP2506724entitled “Vigna Unguiculata seed
extract and compositions containing the same” based on the
TKDL evidences.
Based on the TKDL evidences, Unigen, Inc. / US, have 01-Aug-2014 CSIR
amended the claims of application no EP1881839 for
“Compositions of Bakuchiol and methods of making the same”
and then the application was withdrawn.
Application Closed on 12-Nov-2014.
25
Available at:http://www.tkdl.res.in/tkdl/langdefault/common/milestones.asp?GL=Eng
Unitika, Ltd. / Japan has amended the claims of the application 04-Aug-2014 CSIR
no EP2226071 entitled “Composition for oral administration”
based on the TKDL evidences.
Kim; Hyoung-Jun, Korea, filed a patent application with 06-Aug-2014 CSIR

publication no. 20120329739 entitled “Composition for
preventing or treating Poliosis or Vitiligo comprising a Pueraria
genus plant extract or Puerarin”, the Examiner decided to reject
the claims on 20-Mar-14. Applicant amended the claims on 19-
Jun-14. Examiner again rejected the claims on 06-Aug-14 based
on the TKDL evidences. After amendment of claims on India’s
TK on the basis of prior art in TKDL, patent issued
Based on the TKDL evidences, application no. EP2419508 13-Aug-2014 CSIR

(Somalabs, Inc., 40 Allen Road, South Burlington, VT 05403 /
US) for “Method for the induction of a reward response by
modulation of dopaminergic systems in the central nervous
system”, is deemed to be withdrawn.
Application was closed on 12-Nov-2014.
Based on the TKDL evidences, application 10-Oct-2014 CSIR

no. EP1558271 (Metaproteomics, LLC / US) for “Compositions
that treat or inhibit pathological conditions associated with
inflammatory response”, is deemed to be withdrawn.
Application was closed on 09-Jan-2015.
Based on the TKDL evidences filed for the application no CA 20-Oct-2014 CSIR
2546464 entitled “Sequential application of oral and topical
formulations for treating wrinkles and other damage to skin”
Wachsberg, Richard (Canada), CIPO has declared the
application as ‘Dead’.
M/S Indena S.p.A. / Italy has amended the description of the 17-Nov-2014 CSIR
application no EP2046324entitled “Treatment and prevention
Mucositis by Anthocyanidin derivatives” based on the TKDL
evidences.
Nestec S.A., Avenue Nestlé 55, 1800 Vevey / Switzerland has 25-Nov-2014 CSIR
amended the description of the application no EP1750651
entitled “Composition for improving skin, hair and coat health
containing flavanones” based on the TKDL evidences.
Based on the TKDL evidences, application no. EP2266586 15-Dec-2014 CSIR

(Lifeline Nutraceuticals Corporation 6400 South Fiddler’s Green
Circle, Suite 1970 Englewood, CO 80111 / United States) for
“Compositions and method for alleviating inflammation and
oxidative stress in a mammal”, is deemed to be withdrawn.
Application was closed on 18-Mar-2015.
Based on the TKDL evidences, application no. EP2243383 05-Jan-2015 CSIR

(Nestec S.A. / Switzerland) for “A method and composition for
nutritionally improving glucose control and insulin action”, is
deemed to be withdrawn.
M/S Jensen; Ned L, US, filed a patent application with 06-Jan-2015 CSIR
publication no. 20140106002 entitled “Homeopathic
composition and method for the treatment of Skin Irritations
and other Skin diseases”, Examiner decided to reject the claims
1-19 on 06.01.2015 based on the TKDL evidences.
CGPDTM refuses the application no. 1783/DEL/2007 entitled 15-Jan-2015 CSIR

“Nutraceutical Biscuits” filed by Central Council for Research
in Unani Medicines (CCRUM), India, based on the TKDL
evidences.
Avon Products, Inc. / US has amended the description of the 16-Feb-2015 CSIR
application no EP1827362 entitled “Compositions and methods
of their use for improving the condition and appearance of
skin” based on the TKDL evidences.
M/S Life Science Nutrition AS/ Norway has amended the claims 19-Feb-2015 CSIR
of the publication no. EP1773363 for “NGNA compositions and
methods of use” based on the TKDL evidences.
CGPDTM refuses the application no. 1732/DEL/2007 entitled 12-Mar-2015 CSIR

“A novel composition of the herbal tea” filed by Central Council
for Research in Unani Medicines (CCRUM), India, based on
the TKDL evidences.
Based on the TKDL evidences, application no. EP2689806 17-Mar-2015 CSIR

(Colgate-Palmolive Company / United States of America) for
“Oral compositions containing extracts of myristicafragrans
and related methods”, is deemed to be withdrawn.
Application was closed on 22-Jun-2015.
EPO refuses the application no. EP2464363 entitled “Natural 20-Mar-2015 CSIR
extract from whole Banana fruit (MUSA SPP.)” filed by M/S
Medasani, Munisekhar, India, based on the TKDL evidences.
Based on the TKDL evidences, application no. EP2328598 30-Mar-2015 CSIR

(Phenolics, LLC / US) for “Novel compositions containing
isolated Tetrameric type a Proanthocyanadin and methods of
use and manufacture”, is deemed to be withdrawn.
Application was closed on 13-Jul-2015.
Based on the TKDL evidences, Phenolics, LLC, P.O. Box 2439, 02-Apr-2015 CSIR
846 San Carlos Avenue, El Granada, CA 94108-2439 / US has
amended the claims of the publication no. EP1572219 for
“Efficient method for producing compositions enriched in total
phenols” and then the application was withdrawn.
Based on the TKDL evidences, Morinaga Milk Industry Co, 16-Apr-2015 CSIR
LTD., 33-1, Shiba 5-chome, Minato-ku, Tokyo 108-8384 / Japan
has amended the claims of the publication no. EP1941899 for
“Agent for promoting Glucagon-like Peptide 1 Secretion, food
or drink for promoting Glucagon-like Peptide 1 Secretion, agent
for inhibiting postprandial increase in blood sugar level and
food or drink for inhibiting postprandial increase in blood sugar
level” and then the application was withdrawn.
M/S Patankar; Suresh Balkrishna, India, filed a patent 08-May-2015 CSIR

application with publication no. 20130337057 entitled “Novel
herbal composition for the treatment of kidney stone and other
urinary tract disorders”, Examiner decided to reject the claims
1-7, 9-13 and 15 on 01.07.2014 & again on 08.05.2015 based on
the TKDL evidences. 08-May-2015
BASF Beauty Care Solutions France SAS / France has amended 12-May-2015 CSIR
the claims of the publication no. EP2157966 for “MC-1R, MC-
2R, AND/OR [mu] OPIOID RECEPTORS STIMULATION”
based on the TKDL evidences. 12-May-2015
(VDF Futureceuticals, Inc., 819 Dixie Highway, Momence, IL 20-Jun-2015 CSIR

60954 / United States) have withdrawn their application
no. EP2367526 for “Compositions and methods for alleviating
hyposalivation and for providing oral comfort” based on the
TKDL evidences. 20-Jun-2015
(M/S Pangaea Laboratories Limited / Great Britain) have 29-Jun-2015 CSIR

withdrawn their application no. EP2361602 for “A hair building
solid agent” based on the TKDL evidences.
CGPDTM refuses the application no. 172/DEL/2007 entitled —— CSIR

“A preparation for treatment of Vitiligo and a method of
preparation thereof” filed by Central Council for Research in
Unani Medicines (CCRUM), India, based on the TKDL
evidences.
CGPDTM refuses the application no. 212/DEL/2006 entitled —— CSIR

“A herbal preparation for the prevention and management of
various types of Carcinoma” filed by Prof. S. S. Trivedi, India,
based on the TKDL evidences.
Documentationof traditional knowledge is also acknowledged as a means of

giving due recognition to the traditional knowledge holders. The list is not exhaustive
but a step towards the recognition of the rights of indigenous people and the traditional
knowledge
VIII. CONCLUSION
Needless to say, TK is largely oral and is collective knowledge, beliefs and practices
of indigenous people on sustainable use and management of the resources. It
embodies the wisdom developed over generations and encompasses agricultural
knowledge, medicinal knowledge, biodiversity related knowledge and the like. Classic
examples of medicinal TK may include: Methi for maintaining glucose levels; Amla
for immune system; Haldi as antiseptic etc. the reasons to protect TK are: conserving
the environment; giving recognition and improving the livelihood of TK holders;
benefitting national economies in knowledge driven era and bringing the indigenous
into the main streamline; preventing bio-piracy.26
In just two years, in Europe alone, India has succeeded in bringing about the
cancellation or withdrawal of 36 applications to patent traditionally known medicinal
formulations. The key to this success has been its Traditional Knowledge Digital
Library (TKDL), a database containing 34 million pages of formatted information
on some 2,260,000 medicinal formulations in multiple languages. Designed as a tool
to assist patent examiners of major intellectual property (IP) offices in carrying out
prior art searches, the TKDL is a unique repository of India’s traditional medical
wisdom. It bridges the linguistic gap between traditional knowledge expressed in
languages such as Sanskrit, Arabic, Persian, Urdu and Tamil, and those used by
patent examiners of major IP offices. India’s TKDL is proving a powerful weapon
in the country’s fight against erroneous patents, sometimes referred to as “bio

piracy”27
The indigenous people deserve the adequate protection for the ancient treasure
and they should be given the right to grant license for the traditional knowledge to
be used for giving an incentive for the intellectual property creators to manifest the
knowledge and keep benefitting the society at large. India has already stepped on
the path of preservation of traditional knowledge not only by winning the cases in
revocation of patents but also by establishing a comprehensive database for the
information to be given to all. Like other countries, India can think of having asui
generissystem for the adequate protection of the traditional cultural heritage. India,
being a land of rich cultural heritage and traditional (though potent) methods to cure
maladies, has to go a way ahead in protecting the traditional knowledge. There is a
need to take a holistic view of the entire intellectual property regime which provides
equity to the creator of knowledge, whether created in laboratory of bricks or
laboratory of life. The traditional knowledge is cultural spine of India but it is very
important to maintain a balance between protecting the rights of indigenous
communities and the benefits arising out of the commercialization of developments
based upon this ancient treasure to bring about the socio-economic harmony and
justice to all.
The whole world has realised that by protecting the traditional knowledge,
food for thought will be richer with enough food in stomach and a healthy mind.
26
Available at: http://www.bananaip.com/ip-news-center/traditional-knowledge-ipr-policy-2016
27
Available at:http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html
SHORTER ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 95-104
Persons with Print Disability and Copyright

Law: Marrakesh Treaty and Indian Response
Rajnish Kumar Singh*
I. INTRODUCTION
According to the World Health Organization, there are more than 314 million blind
and visually impaired persons in the world, 90 per cent of whom live in developing
countries. A WIPO survey in 2006 found that fewer than 60 countries have
limitations and exceptions clauses in their copyright laws that make special provision
for visually impaired persons, for example, for Braille, large print or digitized audio
versions of copyrighted texts.1According to Patrick Hely copyright and related
intellectual property law present real barriers to the visually impaired’s ability to
access the written word.2
Furthermore, because copyright law is “territorial,”3 these exemptions usually
do not cover the import or export of works converted into accessible formats, even
between countries with similar rules. Organizations in each country must negotiate
licenses with the right holders to exchange special formats across borders, or produce
their own materials; a costly undertaking that severely limits access by visually
impaired persons to printed works of all kinds.4 The present paper examines the
above apprehensions by referring to various provisions of Marrakesh Treaty and
Copyright Act, 1957 of India. Part II of the paper introduces the Marrakesh Treaty.
Part III & IV are about possibilities under Copyright Law and exemption under
Indian Act. It is also relevant in the context of the present issue that Indian
amendment come before Marrakesh Treaty could come into existence and thus
one may argue that we may have missed the advantage of assessing the provisions
of the Treaty before amending our law. The paper examines the differences and
*
LL.M. Ph.D.(Delhi). Assistant Professor, Faculty of Law, Banaras Hindu University, Varanasi-
221005 (India). Author may be contacted at: [email protected]
1
Available at: http://www.wipo.int/pressroom/en/articles/2013/article_0017.html
2
Patrick Hely, “A Model Copyright Exemption to Serve the Visually Impaired: An Alternative to the
Treaty Proposals Before WIPO”, 43 Vand. J. Transnat’l L., 2010, at 1411
3
One of the defining characteristics of copyright is that they are national or territorial in nature.
That is, it does not operate outside of the national territory where it is granted. L. Bently and B.
Sherman, Intellectual Property Law (New Delhi: Oxford University Press, 2003) at 3
4
Available at: http://www.wipo.int/pressroom/en/articles/2013/article_0017.html
the implications of the differences between Indian law and the Treaty provisions.
Part II of the paper introduces the Marrakesh Treaty. Part III and IV are about
possibilities under copyright law and exemptions under the Indian Act.
II. MARRAKESH TREATY AND ACCESS TO WORK FOR VISUALLY

IMPAIRED PEOPLE
The World Health Organisation estimates that about 90% of the world’s visually
impaired live in low-income settings. 82% of people living with blindness are aged
50 and above. Globally, uncorrected refractive errors are the main cause of moderate
and severe visual impairment; cataracts remain the leading cause of blindness in
middle- and low-income countries. The number of people visually impaired from
infectious diseases has reduced in the last 20 years according to global estimates
work. 80% of all visual impairment can be prevented or cured. The data indicates
the gravity of the problem. The seriousness is further striking in developing countries.5
Reading is a human right; but currently not all people can access books or other
reading materials. The Right to Read is the campaign to update international copyright
laws pertaining to reading materials in accessible formats for blind, low vision and
print-disabled individuals.6Over 90% of all published materials cannot be read by
blind or print-disabled people. We need to be able to reproduce published materials
into accessible formats, such as Braille, large print, and audio editions, however,
copyright rules have the potential to prevents this. This limits the books that blind
students can access for study to further their learning and formal education. In
order to address the above issue a treaty for enabling people with disabilities to
establish access to works protected by copyright was proposed by WIPO. It was
apprehended that the proposed treaty will require extensive changes in the law of
copyright in different countries. Further it was also believed that the proposed treaty
will reduce the incentive for creating new works.7 Working with WIPO, the World
Blind Union (WBU) led the international campaign to develop the Marrakesh Treaty
that would address this book famine. The Marrakesh Treaty (the Marrakesh Treaty
to Facilitate Access to Published Works by Visually Impaired Persons and Persons
with Print Disabilities) was signed in Morocco on 28 June 2013 and proposes to
5
Available at: http://www.who.int/mediacentre/factsheets/fs282/en/
6
Available at: http://www.worldblindunion.org/English/our-work/our-priorities/Pages/right-2-read-
campaign.aspx
7
Comment by Laura Ruby, Director, Accessibility Policy & Standards, Microsoft Corp.and JuleSigall,
Senior Copyright Counsel, Microsoft Corp., to MarialPallante Assoc. Register for Policy & Int’l
Affairs, U.S. Copyright Office, regarding Notice of inquiry and Request for Comments on the
topic of Facilitating Access to Copyrighted Works for the Blind or other Persons with Disabilities
(November 200-9) cited from Shin-Yi Serena Huang, “Comment on Marrakesh Treaty to Facilitate
Access to Published Works for People who are Blind, Visually Impaired, or Otherwise Print
Disabled”, 1(1) NUSRL Journal of Law and Policy 2014, at 71
PERSONS WITH PRINT DISABILITY AND COPYRIGHT LAW: MARRAKESH TREATY ... 97
address the book famine in the context of print disabled people. It allows for
an increase of materials in accessible formats through cross-border sharing and the
increased production of books in more countries.8India joined the treaty on April 30,
2014 and ratified it on June 24, 2014.
The treaty recognizes that, despite the differences in national copyright laws,
the positive impact of new information and communication technologies on the lives
of persons with visual impairments or with other print disabilities may be reinforced
by an enhanced legal framework at the international level. It also recognizes the
importance of the international copyright system and desiring to harmonize limitations
and exceptions with a view to facilitating access to and use of works by persons
with visual impairments or with other print disabilities9
A beneficiary person according to the treaty is a person who is blind; has a
visual impairment or a perceptual or reading disability which cannot be improved to
give visual function substantially equivalent to that of a person who has no such
impairment or disability and so is unable to read printed works to substantially the
same degree as a person without an impairment or disability; oris otherwise unable,
through physical disability, to hold or manipulate a book or to focus or move the
eyes to the extent that would be normally acceptable for reading.10 The focus of
the definition it seems is on the functional aspect.It appears that the concern was
that the exception under copyright laws would be misused to aid those who did not
have any disabilities. The concern is addressed by circumscribing the scope of the
exception to “formats specially designed for the disabled”. Thus instead of limiting
the types of formats that could be created, the governments must limit the
beneficiaries i.e., any accessible format created under the exception under copyright
law could be made available only to persons with disabilities. One way of
implementing this was by mandating converters and distributors to take ‘reasonable
measures’ to ensure that the intended beneficiary belonged to the disabled
community.11
Article 4 by requiring contracting parties to have an exception to domestic
copyright law for visually impaired and print disabled people means that contracting
countries must ensurethat their laws allow visually impaired persons and the
authorizedentity12 to make accessible format books without the need to ask
8
Available at: http://www.worldblindunion.org/English/our-work/our-priorities/Pages/right-2-read-
campaign.aspx
9
The Marrakesh Treaty, 2013, Preamble
10
Id., Article 3
11
Rahul Cherian Jacob, Sam Taraporevala & Shamnad Basheer, “The Disability Exception and the
Triumph of New Rights Advocacy”, NUJS Law Review, 2012, at 609
12
Under the United States proposal, only ‘trusted intermediaries’ could export accessible format
copies of works. A ‘trusted intermediary’ was defined as “a governmental agency or a non-
profit entity with legal personality that has as a primary mission to assist persons with print
permission from the copyright owner of works13.14

The treaty further provides that an accessible copy may be made available to
an authorized entity in another Contracting Party. It also provides that for the benefit
of beneficiary person the accessible format copy may be imported without
authorization of the right-holder. The Treaty in Article 4(4) provides that a Contracting
Party may confine limitations or exceptions to works which, in the particular
accessible format, cannot be obtained commercially under reasonable terms for
beneficiary persons in that market. Any Contracting Party availing itself of this
possibility shall so declare in a notification deposited with the Director General of
WIPO at the time of ratification of, acceptance of or accession to this Treaty or at
any time thereafter. The attempt in the Treaty to clarify the position may be
understood in the context of the concern of the World Blind Union that accessible
format copies may be received under limitations and exemptions clause only if the
format is not available commercially.
It is also important to note that in the context of digital environment large
number of works are protected by employing effective technological measures.
The WIPO Copyright Treaty, 1996 provides that content creators may employ
effective technological measures to protect their works and the member countries
are obliged to provide effective legal remedy against those who circumvent the
technological measures.15 In the light of such a provision it was apprehended that
disabilities by providing them with services relating to education, training, adaptive reading, or
information access”. This definition was highly restrictive since it would leave out mainstream
libraries and educational institutions that nevertheless served persons with visual impairment. It
is to be noted that the Hathi Trust in the United States, a mainstream library, has more than 10
million books in accessible formats and libraries like the Hathi Trust would not qualify as a
Trusted Intermediary under the United States proposal. Rahul Cherian Jacob, Sam Taraporevala
& Shamnad Basheer, Id., at 624
The Marrakesh Treaty, 2013, Article 2(c) defines “authorized entity” as any entity that is authorized
or recognized by the government to provide education, instructional training, adaptive reading or
information access to beneficiary persons on a non-profit basis. It also includes a government
institution or non-profit organization that provides the same services to beneficiary persons as
one of its primary activities or institutional obligations. An authorized entity establishes and
follows its own practices: (i) to establish that the persons it serves are beneficiary persons; (ii)
to limit to beneficiary persons and/or authorized entities its distribution and making available of
accessible format copies; (iii) to discourage the reproduction, distribution and making available
of unauthorized copies; and (iv) to maintain due care in, and records of, its handling of copies of
works, while respecting the privacy of beneficiary persons in accordance with Article 8.
13
Id., Article 2(a) “works” means literary and artistic works within the meaning of Article 2(1) of the
Berne Convention for the Protection of Literary and Artistic Works, in the form of text, notation
and/or related illustrations, whether published or otherwise made publicly available in any
media.
14
Serena, Supra note 7, at 73
15
The WIPO Copyright Treaty, 1996, Article 11: Obligations concerning Technological
MeasuresContracting Parties shall provide adequate legal protection and effective legal remedies
against the circumvention of effective technological measures that are used by authors in
the provisions of Marrakesh Treaty shall be of no use because the Digital Rights
Management technologies ensure access control, use control and are self-enforcing.
To address the same, Article 7 of the Treaty requires contracting parties to take
appropriate measures to ensure that by providing adequate legal protection to and
effective legal remedies against the circumvention of effective technological measure
they do not prevent beneficiary persons from enjoying the limitations and exceptions
provided for in this treaty.
III. POSSIBILITIES UNDER COPYRIGHT LAW

Copyright law provides rights holders with exclusive rightsover written works in
order to stimulate innovation which in a way restrictsdissemination of accessible
written works. As of 2007, less than half of WIPO’s member statesprovided
copyright limitations and exceptions for convertingcopyrighted works into VIP-
accessible formats. In this vein, international intellectual property law has long
resisted erosion ofthe status quo of granting rights holders strong intellectualproperty
protections.16
Under Article 9(2) of the Berne Convention, a country may provide anexception
to its copyright laws if it meets the Berne “three-step test.”17TRIPsalso incorporates
many of the provisions of the Berne Convention,thus making members of the WTO
who did not sign the BerneConvention subject to most of its provisions.TRIPs
establishes a structure forlimitations and exceptions very similar to Berne. It actually
expandsthe three-step test of Berne to cover rights other than reproduction (i.e.,
translation, public performance, broadcasting, public recitation, and adaptation, as
well as the original right of rental established inTRIPs) within exception.18
Despite its addition to the Berne Convention in 1967, the threesteptest was not
interpreted byan international tribunal until2001.A WTO panel decision interpreted
the test as ithad been adopted in Article 13of TRIPs Agreement19. First, the panel
connection with the exercise of their rights under this Treaty or the Berne Convention and that
restrict acts, in respect of their works, which are not authorized by the authors concerned or
permitted by law.
16
Sean Williams, “Closing in on the Light at WIPO: Movement Towards a Copyright Treaty for
Visually Impaired Persons and Intellectual Property Movements”33 U. Pa. J. Int’l L., 2011-2012,
at 1038
17
The Berne Convention, Article 9(2). Under the three-step test, limitations and exceptions must be
limited (1) to certain special cases, (2) which do not conflict with a normal exploitation of the
work, and (3) which do not unreasonably prejudice the legitimate interests of the right holder.
18
Patrick Hely, Supra note 2, at 1380
19
The TRIPs Agreement, 1994,Article 13 embodies three step test, which stipulates the
following:Members shall confine limitations or exceptions to exclusive rights to certain special
cases which do not conflict with a normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the right holder
held thatthe first prong (“certain special cases”) of the test requires nationallegislation
limitations and exceptions to be clearly defined andnarrow in both scope and reach.
Most purpose-specific exceptionswould pass the first step of the test. An exception
or limitation forthe blind would almost certainly be compatible with the first step
ofthe test. The panel interpreted the second prong of the test (“donot conflict with
a normal exploitation of the work”) to mean thatexceptions could not affect forms
that were currently economicallyexploited byrights holders, as well as “those forms
of exploitationwhich, with a certain degree of likelihood and plausibility, couldacquire
considerable economic or practical importance.” Finally, the panel interpreted the
final prong (“do not unreasonably prejudice thelegitimate interests of the right holder”)
to prohibit exceptions whenthey “cause or have the potential to cause an unreasonable
loss ofincome to the copyright holder.”20
IV. EXEMPTION UNDER INDIAN COPYRIGHT ACT

Section 52(1)(zb) 21 was introduced in the Copyright Act by the Copyright
(Amendment) Act, 2012 which permits conversion of a work to a format which is
accessible to people with disability. The provision also requires the person so
converting to ensure that the work is only accessed by persons with disability. It
allows conversion of the work by disabled person himself or conversion by third
parties working for the benefit of the disabled persons with a condition that it must
be done for nonprofit purposes.Further section 31B provides that any person working
for the benefit of persons with disability on a profit basis or for business may apply
to the Copyright Board, in such form and manner and accompanied by such fee as
may be prescribed, for a compulsory licence to publish any work in which copyright
20
Patrick Hely, Supra note 2, at 1379
21
The Copyright Act, 1957, Section 52(1)(zb) exempts the following from infringement liabilities:The
adaptation, reproduction, issue of copies or communication to the public of any work in any
accessible format, by-(i) any person to facilitate persons with disability to access to works
including sharing with any person with disability of such accessible format for private or
personal use, educational purpose or research; or(ii) any organisation working for the benefit
of the persons with disabilities in case the normal format prevents the enjoyment of such works
by such persons:
Provided that the copies of the works in such accessible format are made available to the
persons with disabilities on a nonprofit basis but to recover only the cost of production:
Provided further that the organisation shall ensure that the copies of works in such accessible
format are used by persons with disabilities and takes reasonable steps to prevent its entry into
ordinary channels of business.
Explanation- For the purposes of the sub-clause, “any organisation” includes an organization
registered under Section 12A of the Income Tax Act, 1961 and working for the benefit of
persons with disability or recognized under Chapter X of the Persons with Disabilities (Equal
Opportunities Protection of Rights and Full Participation) Act, 1995 or receiving grants from the
Government for facilitating access to persons with disabilities or an educational institution or
library or archives recognized by the Government.”
subsists for the benefit of such persons, in a case to which clause (zb) of sub-
section (1) of section 52 does not apply.
The Indian initiative needs to be compared with the Marrakesh Treaty so as to
understand the scope of the new provisions. Article 4(1) of the Treaty obligates a
contracting party to create an exception to the rights of reproduction and distribution
to facilitate the domestic availability of works in accessible format for beneficiary
persons. The Indian law permits any person including the person with disability and
any organization working for the benefit of the persons with disabilities toadapt,
reproduce, issue copies or communication to the public any work in any accessible
format. The primary difference lies in the definition of beneficiaries which is only
people suffering from print disability in the Treaty which is not the case in Indian
law.
Earlier section 52(1)(zb) dealt only with formats that were “special designed
only for the use of persons suffering from visual, aural, or other disabilities”.22The
Parliamentary Standing Committee was of the opinion that all physically challenged
need to be benefitted by the proposed amendments. It would be very discriminating
if envisaged benefit remains restricted to only visually impaired, leaving out persons
affected by cerebral palsy, dyslexia and low vision. The Committee took note of
fact that even regular Braille users complement Braille with other accessible formats
like audio, reading material with large fonts and electronic texts. The Committee
also observed that the modern day Braille production is dependent on the material
being first converted into mainstream electronic formats such as MS Word because
Braille translation software requires inputs in such formats.23Further Shamnad
Basheer argues that “given that we now live in the so called “digital” era, what
works best for most of the visually impaired are electronic versions of text that can
be read out using a screen reader software (such as Jaws or Orca). Unfortunately,
“electronic” versions that are created by scanning printed text will not necessarily
qualify as “special formats”. For such electronic versions can be accessed by one
and all. Indeed, that precisely is why offerings such as Kindle and Google books are
a big commercial hit…for their major market comprises the not so differently-
abled.”24 The provision in its present form takes into account the concerns and no
more limited to special formats.
While presenting its side before standing committee the department argued
that for formats that are not covered by section 52(1) (zb) a compulsory licensing
regime is envisaged under s. 31B. It may be mentioned that the amended provision
22
“Analysis of the Copyright (Amendment) Bill, 2012”, Available at: http://cis-india.org/a2k/blogs/
analysis-copyright-amendment-bill-2012
23
Parliamentary Standing Committee, 227th Report on the Copyright (Amendment) Bill, 2010 at 38
24
Shamnad Basheer, “De-Coding Indian Intellectual Property Law”, Available at:
http://spicyip.com/2010/11/special-copyright-victory-for-disabled.html
does not limit the conversion of the work into special formats for print disabled thus
in this context one may not say that provision contained in section 31B relates to
formats that are not covered by section 52(1)(zb).
It is relevant to note that the Marrakesh Treaty address the issue of disables at
two levels, first it limits the liability for lawful creation and distribution of accessible
format copy and second, it legalizes the export and import of accessible format
works made under national copyright exceptions. The first as discussed above may
be achieved by creating the exception as required by the Treaty. It is the second
aspect in relation to which the Treaty provides a global solution. Cross-border sharing
could drive down costs per copy because accessible-format producers indifferent
states would not necessarily have to repeat each other’s work to produce the same
title.25 The provision shall also ensure reduction of duplicative production efforts
and also that works of foreign language shall also become available in Indian market.
Despite above it is difficult to say that the situation as regards export of accessible
format copies is settled. The Indian law appears to be silent on the aspect and thus
only the true right holder according to present Indian provision shall be allowed to
export the accessible format copies and not anyone else.
The 2012 Amendment of the Indian Act introduced the concept of Digital
Right Management (DRM) of Copyright26. Taking into account the apprehensions
of content creators of unauthorized use of their content in the digital medium it
appears to be a change in the right direction. Thus the content creators are allowed
to protect their work by employing effective technological measure. The law shall
punish those who circumvent the technological measure employed by the content
creators.
Today digital works, such as e-books,provide a mainstream medium for persons
with print disabilities.Some of these works make text-to-speech capabilities
commerciallyavailable, while others make it easier for persons with print disabilitiesto
employ assistive technologies to enjoy the work. Consequently,flexibility of digital
media affords persons with print disabilities autonomyto access copyrighted materials.
In effect, the evolution of accessibleformats from Braille to e-books provides an
opportunity for self-helpto allow readers to individually tailor the digital content in
the waythat is most accessible.27 As noted above with the advent of digital technology
25
Shae Fitzpatrick, “Setting its Sights on The Marrakesh Treaty: The U.S. Role in Alleviating the
Book Famine for Persons with Print Disabilities” , 37(139) Boston College International &
Comparative Law Review,2014,at 158
26
The Copyright Act, 1957, Section 65A: (I) Any person who circumvents an effective technological
measure applied for the purpose of protecting any of the rights conferred by this Act, with the
intention of infringing such rights, shall be punishable with imprisonment which may extend to
two years and shall also be liable to fine.
27
Shae Fitzpatrick, supranote 25,at 153
now the authors employ technological measures making it difficult for the people
with disability to make use of the protected work and converting the work in accessible
format such as e-books. The use of technology by the authors prevent disabled
from making positive use of technology.
Section 65 A (2) 28 further provides that the provision related to non-
circumvention of effective technological measures shall not disentitle anyone including
persons with disability to do anything in relation to the work which is not prohibited
under the Act. Which means that circumvention is permitted for the purpose of
giving effect to the objectives of section 52(1)(zb). However, it remains to be utilized
by authorities mention in the provision other than disabled people themselves because
as mentioned above people with disabilities mostly do not possess the means to
circumvent.
A reference of the likely effect of moral rights on the working of the disability
provision shall not be out of place. It is important in the context of copyright that a
balance must be struck between the rights of authors and the public interest. It
cannot be denied that over utilization of the provision may also go against the interest
of the balance mentioned above. In the case of Amar Nath Sehgal v Union of
India and Another29the Delhi High Court observed that in addition to moral rights
of Authors mentioned in Section 57 of the Act, authors have an additional moral
right of retraction which allows authors to decide as to when they want to retract
their work from market. It is always possible that the author may retract his work
from market in case he finds that the overuse of disability provision is going against
his interest in a significant way. Further it is also relevant that the moral rights are of
such importance that any assignment or licence of copyright has to be read subject
to moral rights and not vice versa. Fortunately the situation does not seem to arise
in Indian context as the law does not expressly recognize the right30. The fact that
the list of moral rights is not same in different countries also makes it challenging
for the copyright to evolve any solution for the same.
28
The Copyright Act, 1957, Section 65A: (2) Nothing in sub-section (1) shall prevent any person
from,- ( a) doing anything referred to therein for ·a purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure
for such a purpose shall maintain a complete record of such other person including his name,
address and all relevant particulars necessary to identify him and the purpose for which he has
been facilitated; or (b) doing anything necessary to conduct encryption research using a lawfully
obtained encrypted copy; or (c) conducting any lawful investigation; or (d) doing anything
necessary for the purpose of testing the security of a computer system or a computer network
with the authorization of its owner; or (e) operator; or (f) doing anything necessary to circumvent
technological measures intended for identification or surveillance of a user; or (g) taking measures
necessary in the interest of national security.
29
2005 (30) PTC 253
30
The Copyright Act, 1957, section 57 only provides two moral rights viz. right to paternity and right
to integrity.
V. CONCLUSION
The discussion on the disability provision of Marrakesh Treaty and Indian Copyright
Act only indicates that a step in the right direction has been taken. It remains to be
seen as to what is the true implication of the working of these provisions. On the
perusal of the provisions one gets the impression that certain terms need clarification
in the form of definitions. The Indian law does not explain terms like ‘accessible
format’ and ‘person with disability’ etc. which may make application of law difficult
in future. These terms require authoritative interpretations. The issue of making
intermediate copy needs attention. It may be suggested that the definition of the
term ‘accessible format copy’ may include an explanation to the effect that the
intermediate copy made for the purpose of making accessible format copy is also
included in the definition. A similar approach is visible in explanation to section
52(1)(a) which provides that the storing of any work in any electronic medium for
the purpose mentioned in this clause……shall not constitute infringement of copyright,
Further, it is also relevant to note that such intermediate copies are only incidental in
nature and can be allowed to be made. Over emphasis on disability provision must
not create an impression that the otherwise existing fair use provision in the list of
exemptions is of no use. Further, the law on the point of export of accessible format
also needs clarification. It is hoped that with the working of provisions better results
will emerge for the community which has so far remained away from print version
of the copyright protected works.
SHORTER ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 105-114
Maternity Benefits, Policies and Practices in

India- A Critical Assessment
Balwinder Kaur*
I. INTRODUCTION
Maternity is a condition which requires differential treatment to achieve

genuine equality and, in this sense, it is more of a premise of the principle
of equality than a dispensation. Special maternity protection measures
should be taken to enable women to fulfill their maternal role without being
marginalized in the labour market.
International Labour Office1
In India, women constitute nearly fifty percent of the population.2 About 48.60% of
the rural population is that of women and they are the vital labour force of the
country. However, they remain amongst the most oppressed ones and are often
denied the basic human rights. Maternity protection is a fundamental human right
and an indispensable element of comprehensive work–family policies. Of all the
rights of women, to be a mother is the greatest. It is crucial to promoting maternal
and child health and preventing discrimination against women in the workplace.3
Historically, maternity has been treated as a state of disability in women workers
from undertaking any work during the few weeks immediately preceding and
following child birth. With the emergence of the system of wage labour in the
industrial undertakings, many employers tended to terminate the services of the
women workers when they found that maternity interfered with the performance
of normal duties by women workers. Many women workers, therefore, had to go
on leave without pay during this period in order to retain their employment. Many
others had to bear a heavy strain to keep their efficiency during the periods of
pregnancy, which was injurious to the health of both, the mother and the child.4
* Faculty Member, Hidayatullah National Law University, Naya Raipur (India)

1
“Fundamental Rights at Work and International Labour Standards”, International Labour office,
at 76
2
The Census of India, 2011
3
“Maternity and Paternity at Work: Law and Practice across the World”, International Labour
Office, 2014
4
Available at: http://www.vvgnli.org/sites/default/files/publication_files/099-2012_Shashi_Bala.pdf
To remove this hardship of the women workers, the concept of maternity

benefit came about in order to enable the women workers to carry on the social
function of child; bearing and rearing without undue strain on their health and loss
of wages. The cornerstone of women’s right and gender equality is the enabling
provision of maternity protection. Maternity protection is a fundamental labour right
enshrined in key universal human rights treaties. The Universal Declaration of
Human Rights, 1948 (UDHR) states that motherhood and childhood are entitled to
special care and assistance, as well as to social security.5 The International Covenant
on Economic, Social and Cultural Rights, 1966 (ICESCR) includes special protection
for mothers during a reasonable period before and after childbirth, including paid
leave or leave with adequate social security benefits. The Convention for the
Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)
calls for special measures to guarantee maternity protection, recognized as an
essential right and addressed consistently in all aspects of the Convention. Maternity
protection has been a major concern of the International Labour Organization
(ILO) since its foundation, when the first Maternity Protection Convention,
1919 (No. 3) was adopted. The “provision for child welfare and maternity
protection” is also listed among the core aims and purposes of the ILO
(Article III, Declaration of Philadelphia, 1944). Since then, the International Labour
Conference (ILC) has adopted two further Conventions, supplemented by
Recommendations on maternity protection, the recent being the Maternity
Protection Convention (No.183), in 2000. In 1952, the provision of maternity
leave and cash benefits in case of maternity was also officially recognized
as constituting one of the nine branches of social security established by the
Social Security (Minimum Standards) Convention, 1952 (No. 102). The ILO
Recommendation concerning National Floors of Social Protection, 2012 (No.
202) calls for maternity benefits to be provided as part of the basic social
security guarantees that comprise national social protection floors: access to
essential health care, including maternity care, and basic income security for
persons in active age who are unable to earn sufficient income due, among other
reasons, to maternity.6
In India, the Women’s Indian Association was the first to insist on maternity
benefits for women worker in the Jamshedpur Steel industry in 1920.The association
5
The Universal Declaration of Human Rights, 1948, Article 25 declares that everyone has the right
to a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood, old age or other lack
of livelihood in circumstances beyond his control. Article 25(2) provides that: Motherhood and
childhood are entitled to special care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.
6
Supra note 3
MATERNITY BENEFITS, POLICIES AND PRACTICES IN INDIA- A CRITICAL ASSESSMENT 107
continued to focus on women worker’s condition and their rights. Attempts to bring
about maternity benefits in line with the ILO recommendations met with serious
debates in the late 1920s. It is interesting to know that the first Maternity Benefits
Act was passed in 1929 by the Bombay Government and as result of the
recommendation of the Royal Commission on Labour in India (1931) the Maternity
Benefit Acts were passed in other states like Madras (1934), Uttar Pradesh (1938),
West Bengal (1939), Assam (1944). That shows the growing awareness of the
administration due to the active role of the Trade Union movement at that times
which compelled the authorities to make some protective laws for women workers
which went on improving in their substance in favour of women workers as the
years passed. The goal of maternity protection legislation is to enable women to
combine their reproductive and productive roles successfully and to promote equal
opportunities and treatment in employment and occupation, without prejudice to
health or economic security.7
Granville Austin has described the Indian Constitution as first and foremost a
social document.8 Article 15(3)9 empowers the State to make special provisions for
women. The directives principles contained in Part IV of the Indian Constitution
are the common man’s pathway towards the attainment of socio-economic
justice. Though not justiciable10, these principles are fundamental in the governance
of the Country and State is duty bound to apply these principles in making laws. In
a series of decisions on the subject, the Supreme Court has categorically held that
the State has responsibility to protect the interests of workmen for establishing
social and economic democracy in which every workman realize socio- economic
justice assured in the Preamble. Article 42 of Indian Constitution provides that the
State shall make provision for securing just and humane conditions of work and
maternity benefits.
In order to regulate the employment of women in certain establishments for
certain periods before and after childbirth and to provide for Maternity benefits and
certain other benefits, the Indian Parliament enacted the Maternity Benefit Act,
1961. The Act of 1961 was enacted keeping in mind not only all those legislations
related to maternity that existed from the pre-Constitution days, but also ILOs
mandate regarding maternity protection.11According to the Act, every woman shall
7
Ibid.
8
See Granvile Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press,
2000)
9
Nothing in this Article shall prevent the State from making any special provision for women and
children.
10
The Constitution of India, 1950, Article 37: Application of the principles contained in this Part- The
provisions contained in this Part shall not be enforceable by any court, but the principles therein
laid down are nevertheless fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws.
11
The Maternity Benefit Act, 1961
be entitled to, and her employer shall be liable for, the payment of maternity benefit,
which is the amount payable to her at the rate of the average daily wage for the
period of her actual absence. The maximum period for which any woman shall be
entitled to maternity benefit shall be 12 weeks in all whether taken before or after
childbirth. However she cannot take more than six weeks before her expected
delivery. Prior to the amendment of 1989, a woman employee could not avail of the
six weeks’ leave preceding the date of her delivery; she was entitled to only six
weeks leave following the day of her delivery. However, by the above amendment,
the position has changed. Now, in case a woman employee does not avail of six
weeks’ leave preceding the date of her delivery, she can avail of that leave following
her delivery, provided the total leave period, i.e. preceding and following the day of
her delivery does not exceed 12 weeks. According to the provisions of Maternity
Benefit Act, 1961, if anyone has been working in any factory, mine or plantation
(including those belonging to Government) and an establishment engaged in the
exhibition of equestrian, acrobatic and other performances, irrespective of the number
of employees, and to every shop or establishment wherein 10 or more persons are
employed or were employed on any day of the preceding of 12 months.12 As per the
provision of the Act the State Government may extend the Act to any other
establishment or class of establishments; industrial, commercial, agricultural or
otherwise. However, the Act is not applicable to any such factory/other establishment
to which the provisions of the Employees’ State Insurance (ESI) Act are applicable
for the time being. But, where the factory/establishment is governed under the
Employees’ State Insurance Act, and the woman employee is not qualified to claim
maternity benefit under Section 50 of ESI Act, because her wages exceed Rs.
3,000 p.m. (or the amount so specified u/s 2(9) of the ESI Act), or for any other
reason, then such woman employee is entitled to claim maternity benefit under the
Maternity Benefit Act, 1961 till she becomes qualified to claim maternity benefit
under the E.S.I. Act. According to the Act, every woman employee, whether
employed directly or through a contractor, who has actually worked in the
establishment for a period of at least 80 days during the 12 months immediately
preceding the date of her expected delivery, is entitled to receive maternity benefit.13
The qualifying period of 80 days shall not apply to a woman who has immigrated
into the State of Assam and was pregnant at the time of immigration. For calculating
the number of days on which a woman has actually worked during the preceding 12
months, the days on which she has been laid off or was on holidays with wages
shall also be counted. There is neither a wage ceiling for coverage under the Act
nor there is any restriction as regards the type of work a woman is engaged in.14
A woman employee entitled to maternity benefit may give a notice in writing.
12
Id., Section 2(1)(a)&(b)
13
Id., Section 5A
14
Id., Section 5(2)
The notice may be given during the pregnancy or as soon as possible, after the
delivery. On receipt of the notice, the employer shall permit such woman to absent
herself from work after the day of her delivery. The failure to give notice, however,
does not disentitle the woman to the benefit of the Act.15
As per provisions of the Act the restriction has been imposed on employer not
to employ Pregnant Women.16 When a pregnant woman absents herself from work
in accordance with the provisions of this Act, it shall be unlawful for her employer
to discharge or dismiss her during,17 or on account of such absence or to give notice
of discharge or dismissal on such a day that the notice will expire during such
absence, or to vary to her disadvantage any of the conditions of her services.18
Dismissal or discharge of a pregnant woman shall not disentitle her to the maternity
benefit or medical bonus allowable under the Act except if it was on some other
ground. In case of miscarriage or medical termination of pregnancy, a woman shall,
on production of the prescribed proof, be entitled to leave with wages at the rate of
maternity benefit, for a period of 6 weeks immediately following the day of her
miscarriage or medical termination of pregnancy.19In case of tubectomy operation,
a woman shall, on production of prescribed proof to be entitled, in addition to the
period of absence allowed to her under section 6, or, as the case may be, under
section 9, to leave with wages at the rate of maternity benefit for a maximum
period of one month.20 Leave for a maximum period of one month with wages at
the rate of maternity benefit are allowable in case of illness arising out of pregnancy,
delivery, premature birth of child, miscarriage or medical termination of pregnancy
or tubectomy operation.21 Every woman entitled to maternity benefit shall also be
allowed a medical bonus of Rs. 1000, if no pre-natal confinement and post-natal
care is provided for by the employer free of charge.22 Some of the important rights
of employees under the Maternity Benefit Act, 1961 include:
• To make a complaint to the Inspector and claim the amount of maternity
benefit improperly with held by the employer.23
15
Id., Section 7
16
Id., Section 4: 1. No employer should knowingly employ a woman during the period of 6 weeks
immediately following the day of her delivery or miscarriage or medical termination of pregnancy.
Besides, no woman should work in any establishment during the said period of 6 weeks. 2.
Further, the employer should not require a pregnant woman employee to do an arduous work
involving long hours of standing or any work which is likely to interfere with her pregnancy or
cause miscarriage or adversely affect her health, during the period of 1 month preceding the
period of 6 weeks before the date of her expected delivery, and any period during the said
period of 6 weeks for which she does not avail of the leave.
17
Id., Section 12(1)
18
Id., Section 12
19
Id., Section 13
20
Id., Section 9A
21
Id., Section 10
22
Id., Section 8
23
Id., Section 17
• To appeal against an order of the employer depriving her of the maternity

benefit or medical bonus or dismissing or discharging her from service, to
the competent authority, within 30 days of the service of such order.24
The Act also impose penalties for contravention of Act by Employer
• For failure to pay maternity benefit as provided for under the Act, the
penalty is the employer shall be punishable with imprisonment which shall
not be less than three months but which may extend to one year and with
fine which shall not be less than two thousand rupees but which may extend
to five thousand rupees.25
• The employer shall, if no other penalty is elsewhere provided by or under
this Act for such contravention, be punishable with imprisonment which
may extend to one year, or with fine which may extend to five thousand
rupees, or with both.
The Employee’s State Insurance Act 194826 is a piece of social welfare

legislation enacted primarily with the object of providing certain benefits to employees
in the event of sickness, maternity and injury at the site and during employment.
The Act tries to attain the goal of socio-economic justice enshrined in the Directive
Principles of State Policy under Part IV of the Constitution, in particular Articles
41, 42 and 43. The ESI covers the organized private sector of different sizes and
production capacities as well as shops and establishments. As per provisions of ESI
Maternity Benefit is payable to an insured woman (or pregnant mother) in the
following cases subject to contributory conditions: Confinement is payable for a
period of 12 weeks (84 days). Miscarriage or MTP (Medical Termination of
Pregnancy) is payable for 6 weeks (42 days) from the date following miscarriage.
The case of Sickness or complications arising out of Pregnancy, Confinement and
Premature birth is payable for a period not exceeding more than one month. In the
event of death of an insured woman during confinement leaving behind a child,
Maternity Benefit is payable to her nominee Maternity benefit rate is double the
Standard Benefit Rate or is roughly equal to the average daily wage.27 The
Employee’s State Insurance Act provides for periodical payment to an insured woman
at the prescribed rate and for a prescribed period in case of confinement, miscarriage,
sickness arising out of pregnancy or premature birth of a child.
The Central Civil Service Rules 1972 28 also provides for maternity
protection. The scope of application and quantum of relief in the Rules differ vastly
24
Ibid.
25
Id., Section 21
26
The Employee’s State Insurance Act, 1948
27
Available at: http://www.medindia.net/patients/health-regulations/employee-state-insurance-
corporatio n -benefits.htm#ixzz4BQ2RAX78
28
The Central Civil Service Rules (Leave), 1972
from the other two legislations: Maternity Benefit Act, 1961 and Employee’s State
Insurance Act, 1948. This rule will be applicable to women government employees
and the maternity leave will be for 180 days and admissible only to employees with
less than two surviving children. In case of miscarriage/abortion (induced or
otherwise): total of 45 days in the entire service leave can be provided. However,
any such leave taken prior to 16.6.1994 will not be taken into account for this
limitation admissible irrespective of number of surviving children. The maternity
leave is not debited to leave account and full pay is granted. It cannot be combined
with any other leaves and counted as service for increments and pension. Woman
employees having minor children may be granted Child Care Leave by an authority
competent to grant leave for a maximum period of 730 days (2 years) during their
entire service for taking care of up to two children, whether for rearing or to look
after any of their needs like examination, sickness, etc..
The Factories Act, 1948 also have provisions related to maternity benefits.
Section 79 talks about Annual leave with wages in the case of a female worker,
maternity leave for any number of days not exceeding twelve weeks; and in every
factory wherein more than thirty women workers are ordinarily employed there
shall be provided and maintained a suitable room or rooms for the use of children
under the age of six years of such women.29Such rooms shall provide adequate
accommodation, shall be adequately lighted and ventilated, shall be maintained in a
clean and sanitary condition and shall be under the charge of women trained in the
care of children and infants.30
The Mines Act 1952 also has provisions regarding maternity leave. Section
52 (explanation) (Annual Leaves) provides for maternity leave for any number of
days not exceeding 12 weeks in case of female employees. Section 58 provides for
power of Central Government to make rules. The Central Government may, by
notification in the Official Gazette, make rules consistent with this Act for all or any
of the following purposes, namely: for requiring the maintenance in mines wherein
any women are employed or were employed on any day of the preceding twelve
months of suitable rooms to be reserved for the use of children under the age of six
years belonging to such women, and for prescribing either generally or with particular
reference to the number of women employed in the mine, the number and standards
of such rooms, and the nature and extent of the amenities to be provided and the
supervision to be exercised therein.
29
Id., Section 48
30
The State Government may make rules-
(a) Prescribing the location and the standards in respect of construction, accommodation;
furniture and other equipment of rooms to be provided, under this section; (b) Requiring the
provision in factories to which the section applies, of additional facilities for the care of children
belonging to women workers, including suitable provision of facilities for washing and changing
their clothing; (c) Requiring the provision in any factory of free milk or refreshment or both for
such children; (d) Requiring that facilities shall be given in any factory for the mothers of such
children to feed them at the necessary intervals.
II. SCHEMES FOR MATERNITY BENEFITS

In order to widen the scope of maternity benefits, the Central government has
introduced various schemes such as National Maternity Benefit Scheme (NMBS)
in 2001. Later on NMBS was merged with Janani Suraksha Yojna (JSY)31 which
was initiated in 2005 to encourage institutional deliveries. The government also
launched more comprehensive scheme called Indira Gandhi Matritva Sahyog
Yojana (IGMSY)32. The Conditional Maternity Benefit Scheme (CMBS) was
introduced in 2010 on a pilot basis across 52 districts in India. These schemes
covered maternity protection irrespective of the labour status of women (working
or not-working) through conditional cash transfer.
III. JUDICIAL RESPONSE WITH REFERENCE TO MATERNITY BENEFITS

Indian Judiciary has played significant role in the evolution of Industrial Jurisprudence.
It has not only made a distinct contribution to laws relating to industrial relations,
social security and minimum standards of employment but has innovated new
31
Janani Suraksha Yojana is a conditional cash transfer scheme that integrates financial assistant
with antenatal care during pregnancy and institutional care during and immediately after delivery.
The goals of the scheme are to decrease maternal and infant mortality, and to increase institutional
deliveries in below the poverty line families. The amount of benefit is 500 rupees for home
delivery and additional 200 rupees (total of 700 rupees for rural areas) or 100 rupees (total of
600 rupees for urban areas) for institutional delivery. The benefits are available both for deliveries
in government hospitals and deliveries in recognized private institutions. In cases where
Government health specialists are not available to manage complications or for Caesarean
Section in the Government’s health institution, 1500 rupees can be utilized by the health institution
for hiring specialists from the private sector. To be eligible for the benefits under the JSY, a
woman should be of the age of 19 or above or belong to BPL category or be a SC/ST woman or
be pregnant for the first or second time. (In low performing states a woman who gives birth
after the second time is eligible if she agrees to undergo sterilization immediately after delivery).
32
Indira Gandhi Matritva Sahyog Yojana (IGMSY) is a central government scheme that is operational
on pilot basis in 52 districts among all States/UTs in India. It aims to provide partial compensation
for wage loss for pregnant women, so that they are not under compulsion to work in the last
stage of pregnancy or shortly after delivery. The logic behind this compensation is that women
who rest before delivery will to a larger extent be able to avoid giving birth to low birth weight
babies, and women who rest after delivery will be able to recover as well as breastfeed their
babies. The basic objective of the scheme is to improve the health and nutrition status of
pregnant and lactating women and their children. This shall be done by supporting women with
nutrition and enhancing early infant nutrition and survival trough protection and promotion of
early and exclusive breastfeeding during the first six months of a child’s life. The amount of
benefit is 4000 rupees, and shall be provided in three installments between the second trimesters
of pregnancy till the infant completes six month of age. Women enrolled under IGSMY will be
encouraged to avail JSY package and vice versa. To be eligible for the benefits under the
IGMSY, a woman should be of the age of 19 or above o be pregnant for the first or second time.
In addition, Anganwadi workers and Anganwadi helpers at Anganwadi Centres (focal points of
implementation of the scheme), will receive cash benefits if they encourage women to Participate
in the scheme and service the women efficiently. The amount of benefit is 200 rupees for
Anganwadi workers and 100 rupees for Anganwadi helpers per pregnant and lactating woman.
methods and devised new strategies for the purpose of providing access to justice
to weaker section of society and especially women. In the landmark judgment of
Neera Mathur v. Life Insurance Corporation of India, 33 the petitioner’s
employment with the Life Insurance Corporation (LIC) was terminated after she
returned from maternity leave. The reason given was that she had withheld
information about her pregnancy in a questionnaire she had filled out at the time of
her appointment. After a perusal of the questionnaire, the Supreme Court found
that it required female candidates to provide information about the dates of their
menstrual cycles and past pregnancies. The Court held that the questionnaire was
an invasion of privacy and directed the LIC to reinstate the petitioner and delete the
offending columns from its future questionnaires. In case of Air India v. Nargesh
Meerza34 constitutional validity of Regulation 46(i) (c) of Air India Employees
Services Regulations was in question; the regulation was that the services of the
Air Hostesses would stand terminated on first pregnancy. Justice Fazal Ali while
declaring clause “c” of the above provision is violative of Article 14 observed that,
“It seems to us that the termination of the services of an Air Hostess under such
circumstances is not only a callous and cruel act but an open insult to Indian
womanhood -the most sacrosanct and cherished institution.” The judges were
constrained to observe that such a course of action is extremely detestable and
abhorrent to the notion of a civilised society. Apart from being grossly unethical, it
smacks of a deep rooted sense of utter selfishness at the cost of all human values.
Thus, such a provision, therefore, is not only manifestly unreasonable and arbitrary
but contains the quality of unfairness and exhibits naked despotism and is, therefore,
clearly violative of Article 14 of the Constitution.
In case of Ram Bahadur Thakur (P) Ltd. v. Chief Inspector of Plantations,35
a female worker employed at the Pambanar Tea Estate was denied maternity
benefits on the grounds that she had actually worked for 157 days instead of the
160 days required to qualify for them. The Supreme Court, however, held that for
the purposes of computing maternity benefits, all days including Sundays and unpaid
holidays must be taken into consideration. In Municipal Corporation of Delhi v.
Female Workers’(Muster Rolls) and Another,36 the Municipal Corporation of
Delhi stated that it granted maternity leave to its regular female workers but not to
the daily wage ones, that is, the ones on the muster rolls. The respondents argued
that the practice was unfair as there was hardly any difference in the work allotted
to female workers who were regular and those who were on daily wage. Accepting
the contention, the Supreme Court upheld the right of female construction workers
to be granted maternity leave by extending the scope of the Maternity Benefits Act,
33
1991 SCR Supl. (2)146
34
(1981) 4 SCC 335
35
(1989) II LLJ 20 Ker
36
(2000) 3 SCC 224
1961 to daily wage workers. In another landmark case Kakali Ghosh v. Chief
Secretary, Andaman & Nicobar Administration and Others,37 the main question
was whether a female employee of the Central Government could ask for 730 days
of uninterrupted child care leave under the Central Civil Services (Leave) Rules,
1972. The Supreme Court held that a female employee of the Central Government
is entitled to two years uninterrupted leave for childcare, which may also include
illnesses and schoolwork. Focusing on the situation of women workers and the
significance of the Maternity Benefit Act, 1961 the court opined. “To become a
mother is the most natural phenomena in the life of a woman. Whatever is needed
to facilitate the birth of child to a woman who is in service, the employer has to be
considerate and sympathetic towards her and must realize the physical difficulties
which a working woman would face in performing her duties at the work place
while carrying a baby in the womb or while rearing up the child after birth. Maintaining
proper mental health is as important as maintaining physical health during and post
pregnancy. At least one out of every six women in developing countries experience
mental health issues during pregnancy, and at least one in five women suffer from
depression and other illnesses after childbirth.38 It is emotionally, mentally and
physically difficult for the mother to adjust herself to the work atmosphere after a
break. Instead of lending a helping hand, co-workers end up judging the mother for
her decisions. Another problem is that unless pre-negotiated, many women have to
accept a lower job role and pay with no guarantee of when they would be back on
the track, just because of the maternity gap. The Maternity Benefit Act, 1961 aims
to provide all these facilities to a working woman in a dignified manner so that she
may overcome the state of motherhood honorably, peaceably, undeterred by the
fear, of being victimized for forced absence during the pre or post-natal period.
IV. CONCLUSION AND SUGGESTIONS

To become a mother is the most natural phenomena in the life of a woman. Whatever
is needed to facilitate the birth of child to a woman who is in service, the employer
has to be considerate and sympathetic towards her and must realize the physical
difficulties which a working woman would face in performing her duties at the
work place while carrying a baby in the womb or while rearing up the child after
birth. Adequate and sufficient maternity leaves are essential to women’s physical
and psychological wellbeing after giving birth. Further; there is a large section of
working women not cover under the maternity coverage. It is thus recommended
that there must be universal availability of maternity benefits and child care facilities
to all women workers across different sectors of the society.
37
Civil Appeal No. 4506 OF 2014 (arising out of SLP (C) No. 33244 of 2012), 2014 SCC
38
Gender and Women’s Mental Health, Gender Disparities and Mental Health: The Facts, World
Health Organization, 2001
SHORTER ARTICLES
Vol. 2, No. 2, NUSRL JLP (2015) 115-120
Historical Perspective of Law and Economics

Alik Banerjee1
Sanghamitra Acharya 2
I. INTRODUCTION
According to Samuelson, “Economics is the study of how men and society choose,
with or without money, to employ scarce productive resources which could have
alternative uses, to produce various commodities over time and distribute them for
consumption now and in future among various people and groups of society.”3 So
we can easily infer that the basic study of economics will make you understand
how there will be proper allocation of scarce resources, how production can be
done and last but not the least, how can we distribute those final products between
various segments of the society i.e. the basic question of what to produce, how to
produce and for whom to produce.
Again law is nothing but some articulation of rules and regulations so that
everybody in this society can be made better off. These rules are made to bring the
society in order.4 Now to find out the historical importance of law in achieving the
basic tenants of economics, first we have to differentiate positive and normative
economics. Where positive economics tells us the actual condition of the situation,
the normative part gives the idea of what should be and what ought to be. Thus, it
is obvious that the target of normative economics, i.e. welfare state cannot be
achieved without the help of legal rules, i.e. law. Here in this paper, an attempt has
been made to find how law is playing an important role historically in achieving the
basic tenants of economics and vice versa.
1
Faculty, Department of Economics, National University of Study and Research in Law, Ranchi-
834006 (India). Author may be contacted at: [email protected]
2
State Project Co-ordinator, Work in Freedom Project, International Labor Organization- Child in
Need Institute (CINI), Ranchi-834006 (India). Author may be contacted at:
[email protected]
3
See, Paul. A Samuelson, Economics (McGraw Hill Education India Private Limited, 2010)
4
The fundamental thing that law does is to decide which of the conflicting parties will be entitled
to prevail. The entitlement to make noise versus entitlement to have silence, to pollute versus to
breathe clean air… these are the first order of legal decisions…. Having made its initial choice,
society must enforce that choice. A minimum of state intervention is always necessary. See,
Samuels, “Interrelations between Legal and Economic Processes” 14 J. LAW & ECON, 1971, at
435
Now if we discuss the dynasty of economics in its historical sense, classical

economists will come first in our mind. Adam smith (father of economics) was the
so called founder of classical economist. His famous ‘absolute coat advantage’
theory in international trade still is a matter of great debate. Apart from him, again
in international trade, David Ricardo, with his comparative cost advantage theory
will definitely secure the second position in this school of thought. Say, Schumpeter,
Leibenstein etc. were the other believers of this part of school. These classical
economists, always believed in the theory of ‘laissez faire,’ i.e. there should not be
any government intervention in the market to maintain the equilibrium stable. Free
market would be there. Say’s law of demand says that supply will create its own
demand.5 Classical Economics always gave more importance to the supply side of
the economics and ignored the demand side. With perfect competition, the market
will always ensure equilibrium as it is the responsibility of ‘Invisible Hand’ to
maintain it like that. All classicalists regard capital accumulation is the key to progress.
But profit will not increase continuously, rather after certain point of time it will
decrease and they visualize a stationary state which is the end of capital
accumulation. But everything can be done without any government intervention,
without any rules and regulations which indicates without any law, the economy
can achieve market equilibrium only with the help of Invisible Hand.
This theory of development has been criticized later due to many reasons like,
ignoring of middle class people of the society, neglecting the public sector, giving
least importance to the demand side of the economy or by assuming an unrealistic
growth process. But these very characteristics of classical economics got validated
on its own with the great depression which came in 1930. Ante classical were of
the belief that great depression was the outcome of laissez faire policy. In reality,
it was just the effect of neglecting the government to enact its laws. From the view
point of different school of thoughts in economics, great depression in the year of
1930 was so crucial that there was a complete regime change from classical
economics to Keynesian economics. It was because of the fact that, during great
depression, the famous economist, Keynes came with his own economic thought of
full government intervention was likely necessary in the market. He said that, without
government intervention it is not at all possible to achieve equilibrium in the market,
neither stable, nor unstable. Government should appear with best possible outcomes
of law and bring the economy in equilibrium position and it is the duty of the society
5
“It is worthwhile to remark that a product is no sooner created than it, from that instant, affords
a market for other products to the full extent of its own value.” (J.B. Say, 1803, pp.138–9). Say’s
law states that the production of goods creates its own demand. In 1803, John Baptiste Say
explained his theory. This view suggests that the key to economic growth is not increasing
demand, but increasing production. Say’s views were expanded on by classical economists,
such as James Mill and David Ricardo.
HISTORICAL PERSPECTIVE OF LAW AND ECONOMICS 117
to follow the orders of government to make the society better off. Absence of law
will only make the society worse.6 Keynes also said that, to achieve stable equilibrium,
we should be more focused on the demand side of the market, i.e. the total spending
of the economy, not the supply side which represents the total productive capacity
of the economy. To remove the confusion regarding this matter, he gave his famous
theory of digging hole and building pyramid i.e. government should undertake
the control of the market and should increase the value of effective demand by
employing few people to dig a hole and later they should again employ few others to
fill up that hole. By doing this effective demand of the economy would definitely
increase as employment generation leads to increase in the individual demand due
to increase in the earning capacity of the people in the society. This way of increasing
effective demand then became a way out, a tool for the government to tackle the ill
effects of the great depression. Though, few post Keynesian economists, like Milton
Freidman etc. later criticized this theory of Keynes, but Keynesian era always
believed in full government intervention in the market to make the equilibrium stable.
Now it is time for the Neo Classical economists to come into the picture.
Economists like Pareto, Samuelson, Coase, Pigou etc. were the founder of the Neo
Classical School of thought. This was the era of basic normative economists. They
were of the view that government intervention is not required always. Government
should intervene in the market to make the economy better off when it is likely to be
necessary. Here in the context of neo classical economics, we can easily identify
through different theories given by several economists that how government
intervention is likely to be necessary only when it is required. Wilfred Pareto was
one of them who propounded the optimality theory in economics, i.e. Pareto
Optimality and the details of this theory will definitely lead to the understanding as
to how and when government should intervene. By definition, Pareto Optimality is
making someone better without making somebody worse, i.e. someone is increasing
his/her welfare position without decreasing the welfare of others in the society. But
the moment the optimality point comes, it’s not possible to make someone better
without making someone worse. Once this theory came into the picture of economics,
everyone in this society started making themselves better off irrespective of others.
6
Keynes was an influential policy analyst and economist who lived from 1883 to 1946. His
seminal work, The General Theory of Employment Interest and Money became a founding
force behind modern macroeconomics after it was published in 1936. Keynes supported
government intervention during times of economic turmoil. Among the theories he presented in
“General Theory” was that economies are chronically unstable and that full employment is only
possible with a boost from government policy and public investment. Keynes believed that it
was up to the government to bridge the gap between the economy’s potential and its actual
output during a financial crisis, even if that meant taking on debt.
At this point conflict started arising which is nothing but ‘externality’ in the language
of economics.7
The basic concept of ‘externality’ talks about the conflict between two or
more. If the work done by someone affects the others, it will create externality.
Now definitely externality can be of two types: Positive externality and Negative
externality. If the work done by A, affects positively B, then it is an example of
positive externality. If it hampers B negatively, it is negative externality. Thus in a
same case, equal probability for the occurrence of any of the above two events are
there. Let’s take an example, suppose person A is setting up a firm just adjacent to
a pond owned by person B where he/she is having his/her fishery business. Now
the wastage product of firm A is disposed in the pond of B and affects the growth
of fishes in that pond.
Now there might be two chances viz., maybe the wastage product is acting as
an accelerator for the development of the fishes in the pond, then it is the case of
positive externality and if the wastage product is hampering the growth process of
the fishes, this is an example of negative externality. Now let’s try to find out the
situation of how and when government should intervene. In the above example, in
the first case, person B will never call for any third party intervention as B is getting
the profit. A will also not ask for compensation as it is definitely not known to him/
her. But consider situation 2, where A is creating negative externality to B, B will
definitely ask for compensation. Conflict will arise between them regarding the
wastage product of the firm. Another Neo Classical economist, Ronald Coase said,
this time government should intervene if and only if the above conflict is not resolved
between them internally. This is famous ‘Coase theorem’ in the subject of
economics.8 In this theorem Coase said that whenever a conflict would arise, both
parties should sit together and try to solve the conflict internally. Otherwise
government should intervene and tax the person who is creating externality, i.e.
person A according to the above example and should provide subsidy to that person
who is affected by the externality, i.e. person B according to the above example.
The amount of tax and subsidy would be determined here according to the ‘Pigouvian
tax subsidy scheme.’ This scheme is named according to another Neo Classical
economist, Pigou as he calculated and showed a general formula of what amount
of tax and subsidy should be there if government would enter in a conflict between
two or more individuals and try to resolve that. This is also known as Potential
7
In economics, an externality is the cost or benefit that affects a party who did not choose to
incur that cost or benefit. An externality can be either positive or negative. Pollution emitted by a
factory that spoils the surrounding environment and affects the health of nearby residents is an
example of a negative externality. An example of a positive externality is the effect of a well-
educated labor force on the productivity of a company. Buchanan, James and Wm. Craig
Stubblebine “Externality”, 29(116) Economica 1962, pp.371-384
8
See, Glenn Fox, “The Real Coase Theorems”, 27(3) Cato Journal, at 2007
HISTORICAL PERSPECTIVE OF LAW AND ECONOMICS 119
Pareto Optimality.9 But in real life, whenever this kind of conflict arises and
government intervenes, then the government definitely taxes the person who is
creating the externality and whereas providing the subsidy is concerned, whether
they will give or not, there is a small doubt on that. This part of the story is also
known to them who used to suffer from externality.This is the obvious reason why
the people like B according to the above example always tries to solve the conflict
internally. This is how Neo Classical economists made their point of government
intervention in the market or the society to make everyone in the society better off
and or to make the market a stable equilibrium market.
Later as the time passed other different schools came with their own thought
of whether government intervention is questionable or not. In recent times, monetary
economist Milton Friedman proposed his remarkable view on law and economics.
In one side, while he supported for government intervention, other side he criticized
Keynes for his digging hole and building pyramid theory and multiplier theory as
unrealistic as monetarist provide micro based formulation of demand for money
and distinguished real and nominal variables of economics for different use of both
micro and macro level. After that, another school of thought is New Classical which
is different from Classical and Neo Classical economist. Recently Noble Prize
winner Mankiw has extended his full support to Keynes for absolute government
support in the economy.10
So what we see as per the history of economics is a concern, after the regime
of Classical economist, for almost every school of thought either primarily or
secondarily opted for government intervention in the society as well as market to
make both the things better.It means, without government intervention or in other
words, without any basic rules and regulations, i.e. law, it is a distant dream for any
society around the world to achieve equilibrium or betterment of that.Classical
believed in the laissez faire policy for the market and the outcome was the ‘Great
Depression.’ This does not mean we did not face any other market failure or
economic recession previously, but if the society is giving the responsibility to the
government; they can handle the situation in a better way. And here lies the success
of the law. Without law, it’s not possible to make everyone in the society better off
though economics is saying every individual to maximize his or her own utility subject
to the respective constraint present, and behave rationally not selfishly. Here lies
the true relationship between law and economics which is having its own historical
importance in respect to solve the basic primary question raised in the beginning by
every economist. Allocation of resources should be properly done between every
individual to eliminate inequality in the society. Without proper law it’s not possible
9
“Economic Efficiency: Positive vs Normative”, Available at: http://www.daviddfriedman.com /
Academicv/Price_Theory/PThy_Chapter_15/PThy_Chap_15.html
10
Available at: http://www.encyclopedia.com/topic/Consumption_(Economics).aspx
at all. Production should be done by the best producers in this society for the best
possible outcome. This is also not possible without government intervention. Most
importantly proper distribution of the final product is also not possible without the
help of law to make an egalitarian society where equality among individuals is
present.
Last but not the least; still at the outset of twenty first century, we cannot say
which will come first, whether law or economics. But what we can easily infer is
that both are having their own importance in their respective areas but if we
incorporate law into economics or the other way round, we can increase the overall
welfare of the society and keep every individual in this society in a far better off
position and possibly this was the ultimate goal of the different economist though
they varied in terms of their theories.
BOOK REVIEWS
Vol. 2, No. 2, NUSRL JLP (2015) 121-124
Dr. S Sivakumar
Press Law and Journalists: Watchdog to Guidedog
Universal Law Publishing (2015). Price. Rs. 895/-
The book1 under review has come at a time when it is needed, more than ever
before, to analyse and debate the roles played by the press, legal regulation thereof
besides endeavouring to decipher the normative justifications of the newavatar of
the press (media) witnessed so frequently these days. Of late, media (press) and
journalists have become so influencing a factor that one cannot but wonder at the
way they have seeped into the lives of people imperceptibly moulding the way we
think and live our lives. For the good or the bad, our life is always under surveillance
of this twenty first century omnipresent Peeping Tom!!! There is a paradigm shift
now in the role of the media and journalists. They no longer are concerned with
passing on of information and news; they now ‘impose’ their views. The shift has
been a swift one. Last ten years or so has seen a recasting of the way we would
view press. Ethical journalism has given way to journalistic adventurism, to great
extent, that allows intrusion into some of the spheres of individual and social life in
an unprecedented manner with results that are often laudatory but sometimes they
do impinge upon the constitutionally, or at least ethically, guarded spheres of people’s
lives. This has led to a situation where feel askance as to how should we analyse
the transition that the press and the journalistic approach has undergone in recent
times, especially in the preceding decade or so.
More than seeking justifications for journalistic adventurism, we need to look
out for the ethical legitimacy, especially for acts done by the press and the media
where some of the basic rights/ ideals sine qua non for a life of dignity (and
privacy) in a democratic and constitutional set-up are put to risk of being
violated.2Another aspect of press law that needs to be analysed in some greater
1
S. Sivakumar, Press Law and Journalists Watchdog to Guidedog(New Delhi: Universal Law
Publishing, 2015)
2
See, Ruth Redmond-Cooper, “The Press and the Law of Privacy”, 34 The International and
Comparative Law Quarterly, 1985, pp.769-785. As Justice Bipin Sanghi of Delhi High Court in one
of his judgments said: “Considering the immense impact that the press and media has over the
polity, in my view, it cannot be said that they do not perform a public function or discharge a
public duty, inter alia, when they perform the act of reporting news. Their functions touch the
lives of practically everyone. Their reach is very deep and pervasive. In fact, the audio-visual
media creates an even greater impact in today’s time with deeper & wider penetration all across
detail is the idea of free press itself and its regulation through a legal mechanism.
We need to figure out both the content and contours of “free press”. What
constitutes the idea of “free press”? How is the content of free(dom) to be determined
through legal mechanism as regard the question of freedom of press? The book, in
view of the above, generates a great deal of curiosity as how much and to what
extent it engages with the varied issues and challenges concerning press and the
journalist, and the legal regulatory mechanism. The author makes a prefatory
declaration that the book is an endeavour “to evaluate the conflicting trends in the
contemporary Indian context” and “to conceptualise the role of the press in modern
democracy.”3
The book under review is divided into 28 chapters besides having lengthy
appendices of around 270 pages. The book discusses at the outset the concept of
freedom of expression and freedom of press. The author emphasises the fact that
“A deliberation is required on the freedom of press as to whether it should include
its own freedom to choose when it wants to inform the people and also its freedom
to ventilate the views and grievances of other people who choose to select it as a
vehicle of expression.”4The book covers varied aspects of the subject that it deals
with. It begins with freedom of expression, freedom of press, state intervention in
the inaugural chapters. The crux of these chapters may be summarised by quoting
a comment that the author makes thus: “…it is the duty of the state to create
circumstances in which the Press is accessible to all who want to exercise the
freedom of expression.”5 As stated at the outset, the press (and media) has undergone
a sea change both in term of their role and the manner in which they perform the
role. Therefore, it becomes crucial to see how state should respond to this. In the
fifth chapter, there is an elaboration, though a short one, of the constitutional
restrictions that may be imposed on various grounds as is provided under Article
19(2) of the Constitution. Emphasising the point that “reasonable restriction” is “an
ever changing concept”, the author says that “the court has to strike a proper
balance between the freedom and public interest for which the restriction was
imposed. Thus, the proper balancing becomes the redeeming feature of
reasonableness.”6Freedom of the press often finds intervention in the form of
the State. They command immense power of making, moulding, sustaining or even changing
public opinion. The functions performed by the press & media are recognised by the State
which, consequently, accords various rights & privileges to them.” In the instant case, the Delhi
high court directed Aaj Tak news channel to pay Rs. 5 Lakhs as compensation to the rape victim
about whom certain details were shown by the channel. See also, ABC v. Commissioner of
Police &Ors (2013), available at:www.indiankanoon.org(last accessed on 19.08.2016).
3
Supra note 1 at ix.
4
Id., at 37
5
Id., at 18
6
Id., at 60
BOOK REVIEWS 123
legislative intervention.7 However, it is the executive intervention that has had

profound impacts upon the freedom of the press. Post constitutional history of India
archives instances of grave intervention and imposition of unreasonable restriction
upon the press.8
Chapter XI of the book is an interesting and illuminating one as it deals with
“Privacy and Press” in some detail. While dealing with issues of privacy,it often
becomes a tad difficult to adjudicate given the fact that “privacy is culture-
specific”.9Right to privacy is one of the time-honoured attributes of any civilised
society that cares for the protection of human dignity and fundamental rights.
Emerson says:10
The right of privacy is clearly a vital element in any system of individual

rights. Essentially it is designed to support the individual, to protect the
core of individuality, in the relations of the individual to the collective society.
As such it is designed to mark out a sphere or zone in which the collective
may not intrude upon the individual will. It thus differs from time to time,
and from society to society, depending on where the line is drawn between
individual autonomy and collective obligation.
However, there are instances where journalists tend to breach the privacy of
people only for the purpose of selfish gain. One of the troubling instances of violation
of privacy is the way “Paparazzi” tend to intrude into the private spheres of people
without caring for the damage11 such acts entail.12Agony faced by people when
their privacy is breached may be expressed in the word of Robert Browning thus:
“I give the fight up: let there be an end, privacy, an obscure nook for me. I want to
be forgotten even by God”. Surprisingly, this aspect of “Privacy and Press” remains
unexplored in the book.
Other chapters of the book deal with issues of “rights to Information and
Press”13, “Journalist’s Rights, Duties and Ethics”14 and “Press Ombudsman”15. In
7
Id., pp.62-79
8
See, Soli J.Sorabjee, The Law of Press Censorship in India (Bombay: N.M.Tripathi, 1977)
9
James Michael, “Privacy” in Christopher Me Crudden and Gerals Chambers (ed) Individual
Rights and Law in Britain, 1993, at 266
10
Thomas I. Emerson, “The Right of Privacy and Freedom of the Press”, 14 Harvard Civil Rights-
Civil Liberties Law Review, 1979, at 337
11
Ann Swardson & Charles Trueheart, “Princess Diana and Boyfriend Are Killed in Paris: Car
Crashes With Photographers in Pursuit”, Washington Post, August 31, 1997
12
Patrick J. Alach, “Paparazzi and Privacy”, 28 Loyola of Los Angeles Entertainment Law Review ,
2008, 205;See also, Aastha Mehta and Himaja Bhatt, “Click-Me Not: The Never-Ending Affair of
Shutterbugs and Celebrities”, 1 CMET, 2014 at 59
13
Supra note 1, pp.171-186
14
Id., pp.187-230
15
Id.,pp.288-296
the “Epilogue”16, the author concludes that “New jurisprudential principles have to
be evolved to protect the rights of citizens and to conserve the institution of public
debate.” 17
The book under review therefore is a laudatory effort. Overall, the book will
be a useful companion for judges, lawyers, teachers, scholars, students of law, and
anyone who is interested in press law and its varied facets.
Dr. Rabindra Kr. Pathak*
16
Id.,pp.308-312
17
Id., at 312
* Assistant Professor (Law), National University of Study and Research in Law, Ranchi-834006
(India).
BOOK REVIEWS
Vol. 2, No. 2, NUSRL JLP (2015) 125-128
Rajnish Kumar Singh,

Neighbouring Rights under Copyright Law
Satyam Law International, New Delhi, 2015, pp. i-xxviii + 468, Rs. 1200/-
The rights of authors of literary, dramatic, musical and artistic works are, in the
common law system, covered by copyright and in the civil law system by author’s
right. The rights of performers, phonogram producers and broadcasters, who bring
author’s works before the public, are often described as related or neighbouring
right.1 Neighbouring rights subject matter refer to works created by entrepreneurs
and typically derivative in the sense that it uses or develops existing authorial works.
They are a product of technical and organizational skill rather than authorial skill.2
The genesis of neighbouring rights lies in the technological developments. The
concern of international community to create a separate category of rights, a
category separate from the copyright, can be traced to certain developments at the
end of nineteenth century and the beginning of the twentieth century. It is also
relevant to mention that till 1996 WIPO Performances and Phonograms Treaty the
general opinion was that the beneficiaries of neighbouring rights only perform, record
or broadcast copyright works. The new treaty by including expression of folklore in
the definition of performers clarifies the situation that the underlying content in
performance, phonogram or broadcast may be non- copyright also.The book under
review covers all the traditional beneficiaries of neighbouring rights namely
performers, phonograms procedures and broadcasters in detail.
The book titled Neighbouring Rights under Copyright Law consists of 9
Chapters, VI Annexures, and subject index, which make it a comprehensive epiece
of writing on the subject. Chapter 1 introduces concept of neighbouring rights,
theoretical issues and its different approaches. Chapter 2 traces the evolution and
growth of neighbouring rights at international and national levels. It looks at various
international instruments to understand different subject matters and scope of these
rights in general. It also examines Indian Copyright Law in particular, in the context
of neighbouring rights. It focuses on several changes brought by the Copyright
1
J.L.A. Sterling, World Copyright Law: Protection of Author’s Works, Performances, Phonograms,
Films, Video, Broadcasts and Published Editions in National, International and Regional
Law(London: Sweat & Maxwell, 1998) at ix.
2
Lionel Bently and Brad Sherman, Intellectual Property Law (New Delhi: Oxford University Press,
2001) at 29.
(Amendment) Act, 2012 which has been done to bring the law in conformity with
WIPO Performances and Phonograms Treaty, 1996.The prime reason for delay in
evolving an international framework for neighbouring rights is the opposition by the
Author’s group. Author’s group apprehended that their share of royalty will decrease
if space is given to new beneficiaries within copyright system. The chapter argues
that the law of neighbouring rights has evolved against external pressure of
technology. Chapter 3 brings to fore discussion on protection of rights of performers
in particular. Performer stands in the midway position between the author of creative
work and the person who records the performance. The question whether performer
should be awarded same rights as author of creative work has been discussed in
detail in this chapter. Several economic rights in fixed as well as unfixed performances
and moral rights of performers have also been discussed in this chapter. This chapter
also discusses recent issue concerning audiovisual performances and briefly analyses
draft of the Proposed WIPO Audiovisual Performances Treaty and protection of
performances of expressions of folklore. The Draft Provisions of WIPO and of the
Model Law, 2002 of the Pacific Community has been examined.
Chapter 4 highlights the difference between creative contribution and technical
and organizational contributions in making of a phonogram. These two contributions
need different types of protection. Creative contributions are to be protected by an
author’s rights of the same nature as that ascribed to traditional categories of literary
and dramatic works, and technical and organizational contributions to be protected
by a related or neighbouring rights. The ownership issue in phonogram between
producer and performer has also been dealt with in this chapter. This chapter
discusses in detail protection accorded to producers of phonogram, its criteria, term
of protection and rights under international and national instruments. It also brings
to fore discussion on changes brought by the Copyright (Amendment) Act, 2012 so
far as protection of phonogram producer is concerned. Broadcasting opens great
opportunity of relaying performances to truly mass audiences. The modern innovation
in this field increases channel capacity and thereby the opportunity for broadcasting
organizations to offer a much larger choice of content over a multiple number of
channels. Chapter 5 focuses on new delivery techniques and legal issues relating to
broadcasting. It examines international and national legal frameworks and describes
rights of such organizations under the Brussels Convention, TRIPs Agreement and
WIPO Performances and Phonogram Treaty. It is argued that the rights of
broadcasters have taken a new dimension with easy accessibility of technology to
the world at large and the present chapter presents a relevant discussion on the
Broadcaster’s Treaty in this context.
3
Digital rights management refers to a situation where the content is protected in online medium
by employing effective technological measures. These are self-enforcing. See Sections 65A
and 65B of the Copyright Act, 1957
BOOK REVIEWS 127
Neighbouring rights protect interest of certain persons and legal entities who
contribute towards making works available to the public. Chapter 6 explains the
ways neighbouring rights can be exploited. Apart from individual administration it
also examines the importance of the role performed by the collective societies in
administration of these rights and the future of collective administrations in the light
of modern technological development like Digital Right Management3.There are
risks related to the infringement of neighbouring rights on an unprecedented scale
by using protected property without the consent of authorized entities or by
manipulating the content of the works distributed in digital format. Chapter 7is
devoted to the discussion on infringement of neighbouring rights and related public
interest issues. It explains the concept of primary infringement and secondary
infringement; and exceptions in an intelligent manner and points out various remedies
available against such infringements. It also analyses Indian law on infringement of
such rights and its exceptions.
Digital technology enables transmission and use of most of the protected
materials in digital form. It is argued that legal rules must be set and applied
appropriately to ensure that digital technology does not undermine the basic tenets
of copyright in general and neighbouring in particular. In this context, chapter 8
covers issue of protection of neighbouring rights in the digital environment. This
chapter analyses the response of WIPO and also contains discussion on certain
other related issues of ISP liability, digital rights management, fair use in digital
environment and remedies for internet piracy. Chapter 9 analyses the present status
of neighbouring rights protection and argues inter alia, that exercise and enforcement
of neighbouring rights needs different approach rather than the approach adopted
to protect copyright. The need of redefinition and conceptualization of neighbouring
rights has also been discussed in the context of digital environment.
For the purpose of reference the present book provides VI Appendices. These
appendices contain all the relevant documents having bearing on the subject on
neighbouring rights. It contains the copyright Act, 1957, which is the main law in
India to deal with issue of neighbouring rights. The recent amendment in the Indian
law is also provided. Besides this, it also contains the Rome Convention, 1961; The
Geneva Convention, 1971; the Brussels Convention, 1974; the TRIPs Agreement,
1994; and the WIPO Performances and Phonogram Treaty, 1996 with their recent
revisions. Apart from the above, the discussion of Indian and foreign case laws are
important contribution of the author. Subject index makes it easy for the user to
handle the book.
It seems that the book is slightly over prices. The paperback edition with lesser
price will make it a popular book. The book Neighbouring Rights under Copyright
Law is a useful and comprehensive contribution in this new subject. This book is
useful for teachers, researchers in particular and students in general. Finally

considering the relevance of subject matter, paper quality and binding etc. one comes
to conclusion that the present book has been presented in best possible manner and
the author and publisher deserves appreciation for the same.
Digvijay Singh*
*
LL.M., Ph.D. (BHU), Assistant Professor (Law), School of Law and Governance, Central University
of South Bihar, Gaya- 823001(India)

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THE

NUSRL JOURNAL OF LAW AND POLICY

© 2015 National University of Study and Research in Law, Ranchi.

Published by : Satish Upadhyay, Satyam Law International 2/13, Ansari Road,

Phones : 0091-11-23242686, 23245698

Prof. David W Tushaus, Chairperson Prof. Hung Chia-YIN

Legal Transplant and the ‘Dialogue of Deaf’:

Rethinking the Sexual Politics of “Law” and “Order”

Protection of Traditional Knowledge through Intellectual Property Rights:

Maternity benefits, policies and practices in India-

Historical Perspective of Law and Economics

Rajnish Kumar Singh, Neighbouring Rights under Copyright Law

Approaches of the Supreme Court to Regulate

Abstract: The biggest challenge for Indian Judiciary is how to provide

Key Words: Discretionary power of Labour Court, Dismissal of workmen,

aforesaid activities. These activities encourage indiscipline and render day-to-day

II. POWERS OF LABOUR COURT, TRIBUNAL AND NATIONAL TRIBUNAL

II. PROCEDURE TO BE FOLLOWED BY MANAGEMENT BEFORE

IV. JUDICIAL NORMS FOR EXERCISE OF TRIBUNAL’S INTERFERENCE IN

1. The discretion which can be exercised under Section 11-A is available on

V. DOCTRINE OF PROPORTIONALITY- BASIS FOR INTERFERENCE

VI. THE TESTS FOR DETERMINING THE QUESTION OF QUANTUM OF

VII. CONFLICTING APPROACHES OF SUPREME COURT

Discipline at the workplace in an organization is a sine quo non for the

On the contrary in Management of Hindustan Machine Tools Ltd, Bangalore v.

V. CONFLICTING APPROACHES OF SUPREME COURT IN SPECIFIC CASES

2. Application in Specific Cases

b. Dismissal for unauthorized absence to sort out the problem of his

It is difficult to reconcile the aforesaid decision with other decisions of the

d. Evolution of the doctrine of Limited Inquiry in case of failure to

3. Abusing and Threatening a Superior Officer

IX. APPLICATION OF PRINCIPLE OF INTERFERENCE IN QUANTUM OF

C. Assault of Senior Officer

‘discipline is a form of civilly responsible behavior which helps maintain

Obviously, the idea is more relevant in considering the working of an organization

D. Persistent Refusal to Join Duty at the Transferred Place

E. Sleeping while on Duty

F. Gheraoing the Manager and Causing Damage to the Property

G. Fraud and Corruption

X. POWERS OF HIGH COURTS UNDER ARTICLE 226

XI. CONCLUSIONS AND RECOMMENDATIONS

have tried to strike a balance between the earlier approach of industrial

drunkenness, loss of confidence, theft, and misappropriation etc. This has

Legal Transplant and the ‘Dialogue of Deaf’:

Abstract: In comparative law, legal transplant has been a subject matter

transplantability took place because of colonization without any regard to

Key Words: Comparative law, legal transplant, dialogue of deaf,

completely independent of historical, cultural and social substratum and it is rather

“Account has necessarily to be taken of English solutions even if these are

II. THEORIES OF LEGAL TRANSPLANT

III. KAHN-FREUND VS ALAN WATSON

He affirmed that the developments in communication, urbanization and

a. Causes of Legal Transplant

b. Successes and Failure of Legal Transplant

c. Problems of Legal Transplant in some Countries

IV. LEGAL CULTURE

iii. Institutional features.

force in England on12 December 1949, subject however to sub-

Rethinking the Sexual Politics of “Law” and