IILS Law Review Vol 7 2021

IILS LAW REVIEW Vol.
7 Issue 1/2021 ISSN 2320 – 5318
IILS LAW REVIEW
INDIAN INSTITUTE OF LEGAL STUDIES

UG & POST GRADUATE ADVANCED RESEARCH STUDIES IN LAW
Accredited by NAAC
Affiliated to the University of North Bengal
Approved by the University Grants Commission, New Delhi
Recognized by the Bar Council of India, New Delhi
Siliguri, P.O. Salbari, Dist. Darjeeling – 734002 (West Bengal), India

Phone: (0353) 2960665, Fax: (0353) 2960668
[email protected], [email protected]
Website: www.iilsindia.com
IILS LAW REVIEW Vol. 7 Issue 1/2021 ISSN 2320 – 5318
EDITORIAL BOARD
PATRON
Mr. Joyjit Choudhury,
Hon’ble Founder Chairman, Indian Institute of Legal Studies Siliguri,
West Bengal, India,
EDITOR- IN- CHIEF

Prof. (Dr.) Ganesh Ji Tiwari,
Principal, Indian Institute of Legal Studies, Siliguri, West Bengal, India,
ASSOCIATE EDITOR
Dr. R. K. Singh Associate Professor IILS Siliguri West Bengal, India.
EXECUTIVE EDITORS
Rupa Pradhan, Asst. Prof. of Law, IILS, Siliguri, West Bengal, India.
Souradeep Rakshit, Asst. Prof. of Law, IILS, Siliguri, West Bengal, India.
Anuttama Ghose, Asst. Prof. of Law, IILS, Siliguri, West Bengal, India.
SM Aamir Ali, Asst. Prof. of Law, IILS, Siliguri, West Bengal, India.
ADVISORY EDITORIAL BOARD

Prof. (Dr.) R. Venkata Rao, Professor of Law & Former VC, National Law School of
India University, Bengaluru, Karnataka, India.
Prof. Dr. B.C. Nirmal, Professor of Law & Former VC, National University of Study and
Research in Law, Ranchi, Jharkhand, India.
Dr. T.K Chatterjee, Director (Hony) Indian Institute of Legal Studies, Siliguri, West
Bengal, India
Prof. (Dr.) K. I. Vibhute, Director, Amity Law School, Mumbai, Maharashtra, India.
Prof. (Dr.) Manoj Kr. Sinha, Director, Indian Law Institute, Delhi, India.
Prof. (Dr.) Rathin Bandopadhyay, Former HOD and Professor of Law, Dept. of Law,
University of North Bengal, W.B., India.
Prof. (Dr.) R.D. Dubey, HOD, Dept. of Law, Panchanan Barma Cooch Behar University,
W.B., India. W.B., India.
Prof. (Dr.) Subhram Rajkhowa HOD Dept. of Law, Gauhati University
Prof. (Dr.) K C Rawal, Director, School of Law, Gujarat University, Ahmedabad, India.
Prof. (Dr.) A. K. Pandey, Professor, Dept. of Law, Hemvati Nandan Bahuguna Central
University of Garhwal, Uttarakhand, India.
Prof. (Dr.) Kavita Singh, Professor of Law, West Bengal National University of Juridical
Sciences, Kolkata, W.B., India.
Prof. (Dr.) D.K. Srivastava, Professor of Law, Banaras Hindu University, U.P., India.
Prof. (Dr.) Jyoti Mozika, HOD & Professor of Law, North Eastern Hill University,
Meghalaya, India.
Prof. (Dr.) Pawan Kr. Mishra, Head and Dean, & Professor of Law, Central University of
South Bihar, India.
ABOUT IILS
The Indian Institute of Legal Studies established in the year 2010 has evolved into a unique
system of imparting legal education not only in North Bengal but also as an emerging education
and Research Centre in the SAARC region with the establishment of the Centre for SAARC on
Environment Study & Research. Acknowledged as one of the best law colleges in India, IILS is
nestled in the cradle of the quaint Himalayas and picturesque surroundings assimilating nature
and education, a combination which is a rarity in itself. IILS is an institute that promotes holistic
study in Law in the form of short-term courses, field work, experimental learning, Clinical legal
classes in addition to the regular under graduate course. Post Graduate courses and Research
Centre are already functional, which will mature into doctrinal courses.
The Institution takes pride in hosting workshops for police officers of North Bengal on Human
Rights and Cyber Crimes, where the institute was privileged to have the presence of eminent
police officers and scholars from different corners of the country. The Bureau of Police Research
& Development, Ministry of Home Affairs, Government of India had approved the organizing of
a vertical interaction course for IPS officers on Criminal Justice Delivery System which was
witnessed by the gracious presence of the Hon’ble Judges of the Supreme Court of India and the
various High Courts.
The Institution has been organizing a series of National and International Seminars, Conferences,
Symposiums, Workshops and Inter and Intra Moot Court competitions. The Institute had started
with organizing national seminar on “Civil Justice Delivery System”. Today, it has reached the
peak of organizing international seminars with the SAARC Law Summit & Conclave being the
blooming one.
Presently, the world is facing health crises due to emergence of a pandemic by COVID-19 virus
and physical gatherings have been completely stopped, especially in schools, colleges and
universities since past almost 6 months and more. But even during this pandemic, the Indian
Institute of Legal Studies was the first of its kind in this region that has undertaken the initiative
of conducting online classes for the students of both UG and PG courses and has been
conducting them effectively since its very beginning to reach out to the students through online
teaching- learning mechanism from the very initial period of lockdown. Also, the college have
successfully conducted internal examinations through online mode so that the continuous
evaluation of students does not come to a halt.
The Institution’s vital location, its active participation in imparting knowledge and molding its
students into sensible and responsible individuals has brought to its credit to serve as the nucleus
for education in the North Bengal region. The emphasis in the academic development with its
adoption of inter-disciplinary and practical approach has aided its students to gain deeper
understanding of the learning process and value for education. Additionally, it has not merely
laid the importance for the value and the need to be educated individuals, or to serve as efficient
lawyers, but more essentially, to be reborn as a socially viable and responsible beings to
construct appropriate mechanisms for building a better society for the coming future.
MESSAGE FROM THE PATRON
SHRI JOYJIT CHOUDHURY

Founder Chairman
Indian Institute of Legal Studies
This journal, though in its nascent and juvenile stage, has received the rare distinction of being
recognized by the UGC. It provides the entire team responsible for its publication, the vivacity
and vigor to move forward and present ideas and thoughts to its readers. It has been made
possible by the relentless efforts put in by the editorial team which has had the good fortune of
having extremely able and imaginative research assistants.
While choosing on the topic, I have decided to jot down a few lines on the unprecedented crisis
that the entire human race has been facing due to the COVID -19 Pandemic. The onset of spring
this year has been quite different from other years. It had demonstrated signs of pathological
anxiety. The COVID -19 Pandemic has diseased humankind and it has been considered as a
global health crisis of the modern civilization. This has been the greatest challenge we have
encountered since the World Wars and the Great Economic Depression of the 1930s.The present
hour weighs heavy with gloom and it is the dire need of the world to generate pragmatic
responses to overcome this epidemic and the most erudite brains all over the globe are tirelessly
striving to devise strategies and remedies to combat this crisis.
If we take a look at the history of the Corona virus, it originated sometime in the middle of
December in China at a live seafood market and then spread to the Wuhan area. Gradually, it
spread to Italy, U.S.A, Europe and other countries of the world. The affected countries have been
called to take immediate steps to detect, treat and reduce the further spread of the virus to save
lives of the people. Presently COVID-19 is no more confined to China, Italy or U.S.A. It has
become a global issue.
The economic impact has had devastating and cascading effect world-wide with closure of
business entities, rampant job loss coupled with non -existent economic activities putting the
lives and livelihood of a large section of the world 's population in peril. The poor vulnerable
daily wage earners and migrant workers are the ones who are worst affected. Concrete measures
must be adopted by the governments to provide this section of the population with sustainability
incomes or else the world shall witness an increase in the pre-existing inequalities. The
Governments must strengthen social protection and livelihood, reorient public finance to
augment human capabilities, introduce measures to limit bankruptcies and create new sources of
job creation.
In adverse times as this, when our newsfeed is buzzing everyday with dark and gloomy
information about lockdown, boycotts, rising death toll, a sense of uncertainty is baffling our
minds. We,as responsible citizens of our country must try to hold on our nerves. We must learn
not to panic as lots of myths and fake news are being circulated by fraudsters. Domestic abuse,
depression, suicidal tendencies are increasing because of the anxiety that is looming large. We
must realize that anxiety is contagious and make conscious efforts to combat it.
COVID -19 has had adverse impact on the entire educational system and the entire student
fraternity has been affected irrespective of their social backgrounds. The mental health of
students has also been impacted upon. An effort has been initiated to normalize education system
by the use of technology. About 1.5 billion children around the world have had to stay home and
indoors in their efforts to minimize the transmission of the virus. Even though remote learning
opportunities have been adopted yet 30 percent of the students -around 463 million worldwide-
were deprived access to such a method by remote learning due to depravation and poverty. This
has led to a global education emergency and the repercussions shall be felt for decades to come.
Such unequal access to education particularly in rural areas shall lead to skewed human response
development which is detrimental to humanity.
Humans have devised and evolved various means to restrict the impact of the virus but
itsdevastating effect is visible everywhere-this is the struggle for existence -this is the new
normal. People should spread positive messages. This is the time to explore one's hidden talents
and work on them. Because of communication gaps, people are becoming more paranoid. Social
distancing must be replaced by physical distancing. One should maintain proper hygiene and
positive thinking and physical activity can reduce stress and boost immunity. Though a
staggering number of people are getting infected, they are recovering also. B.B.C and other
institutional research agencies estimate that most of the Corona Virus related information
circulating on social media are not reliable. One must stay away from the medical internet jargon
that one doesn't understand.
It is heartening to see that in spite of closure of many educational institutions, the editorial team
has put in their honest efforts to publish the journal in such antagonizing and unprecedented
times. I sincerely laud and appreciate their endeavors in making this happen.
JOYJIT CHOUDHURY
MESSAGE FROM EDITOR IN CHIEF
Legal scholarship is very vital to the continued relationship of law and society. It sheds light on
particular issues, creating dialogue between scholars’ lawyers, judges and policy makers, causing
us to think more critically. Writing also gives voices to the oppressed, and by speaking out
against injustice, we create ripples in the fabric of society. It leads to shifts in legislative policy,
making our leaders and entrepreneurs aware of the pulse of the people. The only way for a
society is to progress by entertaining contrasting perspectives, each holding the other
accountable. My ultimate vision is that of a society where we are free to have different views and
one where we constantly challenge ourselves to accept new ideas.
The IILS Law Review from its very inception in 2014 has worked to push the boundaries of
academic literature, garnering literature from students, academicians and legal professionals with
a vision of providing fora to academicians, professionals and students alike to express their
views on various dimensions of the law as it stands and the law, as it ought to be. The IILS Law
Review aspires to be at par with foreign law school reviews in terms of quality. Throughout the
years, the editorial boards have attempted to maintain the threshold of quality while ensuring the
frequency of issues is consistent. The IILS Law Review has sought to sustain and support legal
excellence through its continued standards of publication.
I am extremely proud to present the Seventh Volume (Vol. VII, Issue No. 1/2021) of the IILS
Law Review. I thank the Hon’ble Chairman of Institute, the Editorial Advisory Board, the
authors of the articles and the teachers who were involved in this process. A lot of hard work,
intellectual discussions, and free exchange of ideas contributed to this Journal. My hope for the
IILS Law Review, is that it should always seek to achieve newer and greater heights and keep
the spirit of legal scepticism alive.
Looking forward on Behalf of the Board of Editors,
Prof. Dr. Ganesh Ji Tiwari

Editor in Chief& Principal
Indian Institute of Legal Studies
IILS LAW REVIEW
VOLUME 7, ISSUE 1 (2021)
TABLE OF CONTENTS
ARTICLES PAGE
NO.
1. Shareholders’ Right to Vote and Participate in Dr. Gogo George Otuturu 1-10
Corporate Management: A Comparative
Perspective
2. Contempt of Court and Freedom of Speech: Shashank Nande& Rajiv 11-19

The Unbalanced Wheels of a Democratic Cart Ranjan
3. An Analysis of the Right to Health in India Chaitali Wadhwa 20-33
4. Impact of Intellectual Property Rights on Reet Singh 34-48

Economic Growth
5. Menace of Witch Hunting in India: Does Manaswi 49-59

Reparative Justice Need Special Laws?
6. The Road ahead for Transformation of Public Adv. Amardeep Singh 60- 68
Intuitions into Strong Public Institutions Sandhu
7. A Closer Look at the Parol Evidence Rule: Prateek Singh 69-81

Understanding Interpretations in Common
Law, American Law & Lex Mercatoria
8. Panoptical Surveillance of the State in a Sagnik Sarkar &Akarsh 82-94

Dystopian Future- A Threat To Privacy Kumar
9. Assessing the Indian Data Protection Regime SeemonSnigdha Jena & 95- 106
Sukanya Subhadarshana
10. Digital Lending and Fair Use: Undermining Prabhdeep Kaur Malhotra 107-125
the Scope of Exhaustion During Covid-19
11. Trade Secrets: A Strong Form of Protection Garima Singh 126-136

&DikshantTomar
12. The Riddle of The Mandatory Certificate: Siddharth Srikanth 137-149
Judicial Trends and Solutions Surrounding
Section 65b of The Indian Evidence Act, 1872
13. Penal Couple: Revisiting The Rights Of Vasundhara Kaushik 150-161

Victims
14. Impact of Mob Lynching In The Current World Shrey Srivastav 162-172
15. Stridhana in Contemporary Hindu Society: A Ruchir Joshi 173-185

Case of Economic Empowerment
16. Lost In Chaos: Will the Parliamentary Gaurav S. Gawande 186-191

Democracy Sustain with an Increasingly
Disruptive Parliament?
IILS LAW REVIEW Vol. 7 Issue 1/2021 ISSN 2320-5318
SHAREHOLDERS’ RIGHT TO VOTE AND PARTICIPATE IN CORPORATE

MANAGEMENT: A COMPARATIVE PERSPECTIVE
-Dr. Gogo George Otuturu1
Abstract
The shareholders are undoubtedly the primary reason a company exists. They contribute their
money to the company. They do this in hope of a return on their investment. Having invested
their money in the company, they have a right to some control over those who manage their
resources. This is possible by their participation in the management of the company through the
annual general meeting where they exercise their right to vote and to have a say in the
management of the company. This paper examines the extent of the shareholders’ right to vote
and to participate in the management of the affairs of the company. It adopts a comparative
approach. It examines the shareholders’ right to vote and to participate in corporate
management under American law, German law and Nigerian law. As Nigerian law derives
mainly from English law, references will only be made to English law where necessary. The
purpose is to point out the limitations on the shareholders’ right to vote in Nigeria with a view to
making suggestions for reform where necessary. Amongst other things, it suggests that
legislation should make it mandatory for shareholders holding more than twenty percent of the
total issued capital of a public company should have a representative on the board of directors
should.
Keywords: company control, cumulative voting, proxy contest, voting agreement, voting trust
Introduction
Shareholders are entitled to a number of rights. These rights are either conferred by statute or by
the articles. Rights conferred by the articles can be altered in accordance with the provisions of
the articles, whereas rights conferred by statute cannot be altered by the board of directors or
shareholders in general meeting. These principles were brilliantly restated in the Indian case of
Ohio Insurance Co. v. Nunnemacher2 where Justice Perkins said:
A corporation is a creature existing, not by contract; but, in this country, is
created or authorized by statute; and its rights, and even mode of action, may be,
and generally are, defined and marked out by statute; and when they are, they
cannot be changed, even by the contracts of the corporators.3
The right to vote and to participate in corporate management is one of the rights conferred on
shareholders by relevant company statutes. The shareholders are, undoubtedly, the primary
1
LL. B, LL.M, PhD, B.L, CBA, DipEd, ANITD, ACIArb (Nigeria); Solicitor and Advocate of the Supreme Court of
Nigeria; Senior Lecturer, Faculty of Law, Niger Delta University, Wilberforce Island, Bayelsa State, Nigeria. E-
mail: [email protected]; 08033036092
2
[1860] 15 Ind. 294.
3
Ibid 295.
1
reason the company exists. They contribute their money to the company. They do this in hope of
a return on their investment. As such, they have a right to some control over those who manage
their resources. This is possible through the annual general meeting where they exercise their
right to vote and to have a say in the management of the company.
This paper examines the extent of the shareholder’s right to vote and to have a say in the
management of the affairs of the company. The paper adopts a comparative approach. It
examines the shareholder’s right to vote and to participate in corporate management under
American law, German law and Nigerian law. Of course, Nigerian law derives mainly from
English law, so references will only be made to English law where necessary. The purpose is to
point out the limitations on the shareholder’s right to vote in Nigeria with a view to making
suggestions for reform where necessary. Amongst other things, it suggests that legislation should
make it mandatory for shareholders holding more than twenty percent of the total issued capital
of a public company should have a representative on the board of directors should.
Shareholder’s Right to Vote under American Law

Under the United States Revised Business Corporation Act, each share normally entitles its
holder to one vote on matters submitted to a vote, unless the articles provide for more or less
than one vote per share.4 Thus the holder of one share is generally entitled to one vote and the
holder of fifty shares is generally entitled to cast fifty votes.
The RMBCA also authorizes the issuance of nonvoting shares.5 For example, redeemable
preference shares generally carry no voting rights. However, even the holder of a nonvoting
share is entitled to vote on certain extraordinary transactions, such as amendments to the articles,
mergers and consolidations, and dissolution of the corporation.6
Because a shareholder is entitled to one vote for each share, the holders of 51 percent of the
voting shares will have complete control. To give minority shareholders more power, most states
permit corporations to adopt cumulative voting for directors. This system allows a shareholder to
multiply the number of his voting shares by the number of directors to be elected. 7 Thus, he may
cumulate all these votes and cast them for one candidate or distribute them among several
candidates. This procedure allows minority shareholders an opportunity to be represented on the
board of directors.8
4
Revised Model Business Corporation Act 1985 Revision (hereinafter simply referred to as RMBCA), s 7.21(a).
5
Ibid, s. 7.21(d).
6
Ibid, s. 11.03.
7
Ibid, s 7.28(b) provides that shareholders do not have a right to cumulate their votes for directors unless the
articles of incorporation so provide. In other words, the articles may permit cumulate voting for directors.
8
RW Hamilton, Cases and Materials on Corporations including Partnerships and Limited Partnerships (3rdedn,
West Publishing Co. 1986) 425-436; GW Brown, EE Byers and MA Lawlor, Business Law (7thedn,
McMillan/McGraw-Hill Publishing Co. 1989) 529.
2
Cumulative voting can be illustrated with an example. Assume that Buck Corporation will elect
all three of its directors at the next annual shareholders’ meeting. Assume also that out of the
100, 000 voting shares of the corporation, the majority shareholders hold 60, 000 shares and the
minority shareholders hold 40, 000 shares. The minority shareholders wish to elect at least one
director to the board, but the majority shareholders want to elect all the three directors to the
board. If cumulative voting is not used, the majority shareholders will be able to vote in all its
candidates by a margin of 60, 000 votes to 40,000 votes.
Assuming a cumulative voting system is employed. Each share is given three votes, one for each
director to be elected. If a shareholder owns only one share, the shareholder may cast one vote
for each of the three candidates, or may instead cumulate his votes by casting all three votes for
one candidate. In our example, the minority shareholders will have 120, 000 votes (that is, the
40, 000 shares they own multiplied by the three directors to be elected), all of which they can
cast to elect their candidate.
In our example, the majority shareholders have 180, 000 votes. If they cast all the 180, 000 votes
for only one of their candidates, they would not have any votes left to elect the other two
candidates. Alternatively, they could cast 120, 001 votes for one of their candidates and this
would give him one more vote than the minority shareholders’ candidate. But then the majority
shareholders would have only 59, 999 votes left, which they would cast to elect the third
candidate to the board. Thus, the minority shareholders’ 120, 000 votes would ensure them a slot
on the board.
Cumulative voting applies only to the election of directors. In some states, cumulative voting is
required by statute and cannot be refused in any election or eliminated in the articles. In other
states, it is permissive, meaning that cumulative voting can be eliminated in the articles. Under
the RMBCA cumulative voting is permissive.9 Whether it is permissive or mandatory,
cumulative voting for directors is controversial. On the one hand, proponents of cumulative
voting claim that it is necessary to assure a minority voice in corporate management. On the
other hand, opponents claim that minority representation means dissent in the boardroom.10
Majority shareholders have in many instances succeeded in curtailing or eliminating cumulative

voting through a number of devices. In states where the right to vote cumulatively is permissive
rather than mandatory, the charters of certain corporations have been amended to replace
cumulative voting with straight voting. Cumulative voting may also be circumvented by
9
RMBCA, s. 7.28.
10
TW Dunfee and others, Modern Business Law and the Regulatory Environment (3rdedn, McGraw-Hill 1996)
778.
3
removing minority-elected directors without cause. A third method employed to prevent

effective use of cumulative voting is that of reducing the number of directors.11
A further related device for diluting the effect of cumulative voting is the staggered election of
directors, because the fewer the number of directors to be elected, the greater the number of
shares that will be necessary to assure representation.12 As an illustration, assume that in our
earlier example, the three directors were elected for staggered 3-year terms and only one director
comes up for election each year. That will neutralize the effect of cumulative voting. In any
given year, the majority shareholders would have 60, 000 votes (60, 000 shares times one
director to be elected) and the minority shareholders would have 40, 000 votes. With only one
slot to be filled each year, the majority candidate would win each year by a margin of 60, 000
votes to 40, 000 votes.
Under the RMBCA, staggered elections are allowed to a limited extent. It permits boards
consisting of nine or more directors to be divided into two or three classes, with each class being
elected to a staggered 3-year term.13 However, in states where cumulative voting is mandatory,
the staggered election of directors is often prohibited.14
A shareholder may vote either in person or by proxy. A proxy is an authorization to exercise

voting rights which is given by a shareholder to another person (who may also himself be
referred to as a “proxy”).15 A proxy creates a special type of principal-agency relationship and
therefore is subject to the rules of agency law as modified by special state statutes or by federal
securities regulations. Under the RMBCA, a proxy must be in writing. A telegram or cablegram
is sufficient. Some states require that the proxy be filed with the corporation before or at the
shareholders’ meeting. A few states allow oral proxy.16
As a proxy creates an agency relationship, every appointment of a proxy is revocable. One way a
shareholder may revoke a proxy is by attending and voting at the relevant meeting. However, a
proxy is not revocable if it is coupled with an interest, meaning that some consideration has been
received by the shareholder such as an option to purchase the share. Even when proxies are
irrevocable, statutes generally limit their duration. The RMBCA limits the validity of a proxy to
eleven months unless it is otherwise provided in the proxy.17
11
Humphreys v Winous Co. 165 Ohio St. 45, 133 N.E. 2d 780 (1956).
12
Dunfee (n 9) 778.
13
RMBCA, s. 8.06.
14
Dunfee (n. 9) 779.
15
MA Pickering, “Shareholders’ Voting Rights and Company Control” [1965] 81 LQR 248, 261.
16
Dunfee (n. 9) 779.
17
RMBCA, s 7.22.
4
Because cumulative voting may be circumvented and because proxies may be revoked, other
devices for pooling votes for control of the corporation are frequently used. They include voting
agreement and voting trust. A voting agreement is a contract entered into by several shareholders
who mutually promise to vote their shares together in a specified manner. In some states 18 and
under the RMBCA, such agreements are enforceable.19 Such agreements are known variously as
shareholder agreements, voting agreements or pooling agreements and have been held to be valid
and enforceable.20
A voting trust is an agreement among shareholders to transfer their voting rights to a trustee, who
is permitted to vote the shares in a block at the shareholders’ meeting according to the terms of
the trust instrument. Under the RMBCA, a voting trust agreement must be in writing, which must
specify the terms and conditions of the voting trust, and a copy of it must be deposited with the
corporation. The shareholders must transfer their shares to the trustee and receive in return trust
certificates, sometimes called certificates of beneficial ownership.21
A voting trust is not the same thing as a proxy. A proxy has neither legal title to the shares not
possession of the certificates, whereas a voting trustee has both.22 As a proxy creates a special
agency relationship, it is revocable unless it is coupled with an interest. On the other hand, a
voting trust, once created, cannot be revoked until the specified period has run its course. Under
the RMBCA, a voting trust cannot exceed ten years but it may be extended for an additional ten
years.23
The minority shareholder’s voting power increases as the proxies accumulate. This has brought
about what has come to be known as proxy contests between the minority shareholders and the
majority shareholders.24 This has necessitated the regulation of proxy solicitation25 in order to
protect shareholders from misleading and concealed information in the solicitation of proxies.26
Shareholder’s Right to Vote under German Law

Under German law, in principle, each share confers the right to vote at shareholders’ meeting.27
The articles may create shares without voting rights only in the case of preference shares. The
18
See, for example, California Corporation Code, s 708.
19
RMBCA, s. 7.31.
20
Ringling Bros-Barnum & Barley Combines Shows v Ringling 29 Del.Ch. 610, 53 A.2d 441 (1947).
21
Dunfee (n 9) 779.
22
KW Clarkson and others, West’s Business Law (5thedn, West Publishing Co. 1992) 787.
23
RMBCA, s 7.30.
24
Brown (n 2) 529.
25
Securities and Exchange Act 1934, s 14.
26
Dunfee (n 9) 779.
27
Aktiengesetz of 1965 (German Stock Corporation Law) (hereinafter simply referred to asAktG) s 12(1).
5
articles may, however, limit the voting power of any shareholder to a specified number of
shares.28
Contracts between shareholders to vote in a certain way are valid. However, contrary to the
American rule, contracts of this kind cannot be specifically enforced. The party injured by a
breach of such contract is relegated to a claim for damages.29
Generally, shares with multiple voting rights are prohibited. Such shares may be issued only with
governmental permission, and only to the extent necessary to safeguard vital interests of the
general economy.30 The public authority responsible for granting multiple voting rights is the
government of the state in which the corporation has its domicile.
Voting rights can be exercised in person or by proxy. The proxy must be in writing and signed
by the shareholder concerned.31 The most important proxy holders in shareholders’ meetings are
banks. Most of the shareholders in German corporations leave their representation at the meeting
to the banks with which their shares are deposited. It is thus customary for a shareholder to give
his bank every year a written power of attorney authorizing the bank to represent him at the
shareholders’ meeting of any corporation which is represented in his portfolio.32
Proxies are revocable at any time and may not be granted for a longer period than fifteen
months.33 However, renewals are permitted and are usually granted as a matter of course. Even
with a power of attorney, a bank is not automatically entitled to vote the shares of its principal.
It must first submit to the customer a specific proposal as to the way it intends to exercise the
voting right and then ask him for specific instructions as to the items on the agenda. The
customer’s instructions must be followed. If the customer fails to give instructions, the bank may
vote his shares according to the proposal submitted.34
Shareholder’s Right to Vote under Nigerian Law

Under the Companies and allied Mattes Act 2020, the right to vote by a shareholder is one of the
important incidents of share ownership and the articles, apart from conferring the right to vote,
may also stipulate the manner and extent of its exercise. As the directors invariably hold a strong
28
Ibid, s. 134(1).
29
EC Steefel& B. von Falkenhausen, “The New German Stock Corporation Law” [1967] 52 Cornell Law
Quarterly 518, 541-542.
30
AktG, s. 12(2).
31
Ibid, s. 134(3).
32
DF Vagts, “Reforming the Modern Corporation: Perspectives from the German” [1966] Harv. L. Rev. 23, 53-
58.
33
AktG, s. 135(2).
34
Ibid, s. 128(2).
6
position of de facto control within the company, the shareholder’s right to vote is often seen as
the source of corporate control.35
The shareholders participate in management of the company through the annual general meeting
where they exercise their right to vote and to have a say in the management of the company. The
Companies and Allied Matters Act 2020 reserves certain powers of control over the company to
the shareholders in general meeting. For example, decisions of the board of directors on mergers
and acquisition,36 declaration of dividends,37 capitalization of profits and reserves38 and voluntary
winding up39 are subject to approval by the shareholders in general meeting. The shareholders
also have the power to elect the directors of the company40 and to remove or refuse to re-elect
directors41 with whose performance they are not satisfied.42
In the English case of Shaw & Sons (Salford) Ltd v Shaw43 where Greer LJ succinctly stated the
power of the shareholders to control the exercise of director’s powers thus:
The only way in which the general body of shareholders can control the exercise
of the powers vested by the articles in the directors is by altering the articles, or if
the opportunity arises under the articles, by refusing to re-elect the directors
whose action they disapprove.44
Although the shareholders have the power to alter the articles, they cannot exercise this power
retroactively. In other words, no alteration of the articles shall invalidate any prior act of the
board of directors which would have been valid if the articles had not been altered. 45 Thus, the
shareholders in general meeting cannot alter the articles so as to invalidate what was valid at the
time it was done.46 Also the power of the shareholders to remove a director is without prejudice
to the director’s right to sue for damages.47
35
ME Asomugha, Company Law in Nigeria under the Companies and Allied Matters Act (Tema Micro Publishers
Ltd 1994) 101.
36
Investment and Securities Act 2007, s 121(5).
37
Companies and Allied Matters Act 2020 (hereinafter simply referred to as CAMA), s 426.
38
Ibid, s 420.
39
Ibid, s 620.
40
Ibid, s 273.
41
Ibid, s 288.
42
KB Omidire, ‘The Rights and Responsibilities of Shareholders at the Annual General Meeting’ [1999] 1 Modus
International Law and Business Quarterly 18, 19.
43
[1935] 2 KB 113.
44
Ibid 164 (Greer LJ).
45
CAMA, s 87(6).
46
JO Orojo, Company Law and Practice in Nigeria (5thedn, LexisNexis 2008) 99-101.
47
Southern Foundries Ltd v Shirlaw[1970] AC 701.
7
At any general meeting, a resolution put to the vote shall be decided on a show of hands, unless a
poll is demanded. On a showofhands, each member entitled to vote has one vote only irrespective
of the number of shares he holds in the company. On a poll, however, every member is entitled
to one vote in respect of each share and he need not use all his votes or cast all the votes he uses
in the same way.48 In Carruth v. I.C.I Ltd49 Lord Maugham said, “The shareholder’s vote is a
right of property, and primafacie may be exercised by a shareholder as he thinks fit in his own
interest.”50
In some specified circumstances, preference shares may carry more than one vote per share. For
example, the articles may provide that preference shares shall carry the rights to attend general
meetings and on a poll at the meetings to more than one vote per share in the following
circumstances:
(a) where there is a resolution during such period as the preferential dividend or any part of
its remains in arrears and unpaid; or
(b) where there is a resolution which varies the rights attached to preference shares; or
(c) where there is a resolution to appoint or remove an auditor of the company; or
(d) where there is a resolution for the winding up of the company or during the winding up
of the company.51
There are four categories of persons who have the right to demand a poll. The first is the
chairman where he is a shareholder or a proxy. The second is any three members present in
person or by proxy. The third is any member or members present in person or by proxy and
representing not less than one-tenth of the total voting rights of all the members having the right
to vote at the meeting. The fourth is any member or members holding shares on which an
aggregate sum has been paid up equal one-tenth of the total sum paid up on all the shares
conferring the right to vote at the meeting.52
The right to demand a poll is inalienable and any provision in the articles excluding this right
shall be void. However, there are two exceptional cases where the right to demand a poll may be
excluded. Firstly, it may be excluded on any question relating to the election of the chairman of
the meeting. Secondly, it may be excluded on any question relating to the adjournment of the
meeting. In addition, the Act excludes the right to demand a poll on the election of members of
the Audit Committee, which is peculiar to only public companies.53
48
Ibid, s 224.
49
[1937] AC 707
50
Ibid 765.
51
CAMA, s. 168.
52
Ibid, s. 248.
53
Ibid, s. 249.
8
Any member of a company entitled to attend and vote at a meeting of the company shall be
entitled to appoint another person as his proxy to attend and vote instead of him. A proxy need
not be a member of the company. A person appointed a proxy shall have the same right as the
member to speak at the meeting.54The instrument appointing a proxy must be in writing under the
hand of the appointer or his attorney duly authorized in writing. If the appointer is a company,
then the instrument must be under seal or under the hand of the officer or attorney duly
authorized.55
The Act requires that the instrument appointing a proxy and the power of attorney or other
authority, if any, shall be deposited at the registered office or head office of the company not less
than 48 hours before the time for holding the meeting at which the person named in the
instrument proposes to vote. In the case of a poll, the instrument must be deposited at the
registered office or head office of the company not less than 24 hours before the time appointed
for taking of the poll. In default, any instrument of proxy shall be treated as void.56
Finally, the Act requires every notice of meeting of a company having a share capital to contain a
statement that a member having the right to attend and vote at the meeting is entitled to appoint a
proxy to attend and vote instead of him and that a proxy need not be a member. If default is
made in complying with this requirement, every officer of the company who is in default shall be
guilty of an offence and liable to a fine.57
Conclusion and Suggestions for Reform

Under the Companies and Allied Matters Act 2020, the shareholders’ right to vote and have a
say in the management of the affairs of the company is limited to participation at the annual
general meeting58 and enforcement of their rights against the company by way of exception to
the majority rule.59 There are no voting devices to ensure the representation of minority
shareholders on the board of directors. Even the remedies available to shareholders under the Act
are circumscribed by procedural obstacles and financial burdens which are difficult for minority
shareholders to surmount.60
The shareholders’ right to vote and to have a say in the management of the affairs of the
company should be strengthened and protected by legislation. This could be achieved by
introducing cumulative voting for the purpose of electing directors. This will give minority
shareholders the opportunity to elect their representative to the board of directors. The venue of
shareholders’ meeting should be accessible and affordable in terms of distance and cost. This
54
Ibid, s. 254(1).
55
Ibid, s. 254(6).
56
Ibid, s. 254(7).
57
Ibid, s. 242(4).
58
Ibid, s 107.
59
Ibid, s 341.
60
Ibid, s 346.
9
will make it possible for minority shareholders to attend and exercise their right to vote. For this
purpose, it should be made mandatory for all shareholders’ meetings to be held at the registered
office of the company instead of the common practice of holding shareholders’ meetings at
Abuja or Lagos, which are inaccessible to most of the minority shareholders in terms of distance
and cost.
Finally, the recommendation of the joint committee of the Securities and Exchange Commission
and the Corporate Affairs Commission that shareholders holding more than 20% of the total
issued capital of a public company should have a representative on the board of directors 61
should be given statutory backing.
61
SEC and CAC, Code of Best Practices on Corporate Governance (Securities and Exchange Commission and
Corporate Affairs Commission 2003) 20.
10
CONTEMPT OF COURT AND FREEDOM OF SPEECH: THE UNBALANCED

WHEELS OF A DEMOCRATIC CART
-Mr. Shashank Nande1 and Mr. Rajiv Ranjan2
Abstract
The Indian democracy runs as per the Indian Constitution. The Indian Constitution under Article
19(1)(a) of it provides ‘freedom of speech and expression’. This right has greater significance as
it allows the flow of the ideas and thoughts which is pivotal for the functioning of Indian
democracy. It helps in making the government know about their responsibilities. However, this
right is not absolute and can be restricted under certain grounds. Contempt of court being one of
those grounds. The independence and integrity of Indian judiciary is also actor significant factor
which the constitution guarantees but at times, both the principles conflict and again it becomes
the responsibility of the judiciary only to resolve the conflict and strike a harmonious balance
where ideas and thoughts can flow without making any contempt. The Supreme Court of India
being the apex court of the country has attempted to bring the harmony but at times it becomes a
matter of controversy as well. This paper in brief deals with the how significant the right of free
speech and expression is and how the courts have tried striking a balance between the two,
especially the criminal contempt.
Introduction
“Justice is not a Cloistered virtue, she must be allowed to suffer the scrutiny and
respectful even through outspoken comments of ordinary men”
- Lord James Atkin.
(Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335)
Indian democracy stands on the wheels of free speech and expression. It the most cherished
rights enjoyed by the citizens of the country. The Indian Constitution guarantees these rights to
the citizens of this country. Free speech allows the flow of ideas which is very pivotal for the
functioning of the democracy as it allows people to come down to a reasoned and informed
decision. The government chosen in India is based on the consent of the citizens of India is also
an illustration of freedom of speech and expression. This expression empowers the citizens to
even criticize the functioning of the state which includes judiciary as well. Close look to Article
19(a) of Indian Constitution very expressly bestows the power to express one’s opinion but this
1
Assistant Professor at School of Law, Amity University, Raipur. He can reached at [email protected]
2
Ph.D Scholar, NUALS Kochi. He can be reached at [email protected].
11
right is not absolute, it is subject to many reasonable restrictions. Some restrictions that may be
put on the right to freedom of speech & expression are the interest of the sovereignty, integrity
and security of India, friendly relations with foreign states, public order, decency or morality or
in relation to contempt of court, defamation or incitement of offence.3 Contempt of Court is
included under the restriction part which shows a citizen’s right of free speech and expression
will not work as a shield when someone by his words or conduct dilutes or lowers down the
authority of judges or the court or obstructs in the administration of justice. Independence of
Judiciary just like Part III is also a basic feature of Indian Constitution4 and in order to safeguard
the same, the text5 has provided Article 129 and 215 of Indian Constitution which makes the
Supreme Court and High Courts of the state ‘a court of record’ and also provide power to
proceed on contempt. Freedom of speech and expression under Article 19(1)(a) of Indian
Constitution allows the citizens to criticize the functioning of Indian judiciary. However, the
Indian courts have also been empowered to punish if somebody attempts to lower down the
dignity of the courts or makes an attempt to interfere with the administration of the justice. These
two principles are very essential for the functioning of Indian democracy.
The law of contempt in India is governed by Contempt of Courts Act, 1971. This power is being
given to courts for the administration of justice and upholding the supremacy of law in the
country. Contempt of Courts Act, 1971 mentions two types of ‘Contempt’ i.e. Civil and
Criminal.6 Civil contempt refers to ‘willful disobedience’ to any judgement or decree or order of
a court whereas ‘Criminal Contempt’ signifies an act (whether by words or conduct or through
publication) which scandalizes or tends to scandalize or lowers the authority of any court.
Criminal contempt also includes an act which prejudices, or interferes or tends to interfere or
obstructs the administration of justice. Criminal Contempt had always been the subject matter of
debate. The primary reason for that is the tussle between two significant part of Indian
Constitution i.e. ‘Freedom of Speech and Expression and Independence of Judiciary’. The power
of the Indian courts to punish for contempt often encroaches upon the right of free speech. There
seems a thin line difference between criticizing the judiciary and lowering the authority of the
Court which in brief is being dealt in this paper with emphasis given on the recent developments
in this area.
Freedom of Speech and Expression under Indian Constitution
The Indian Constitution provides its citizens ‘Right to Freedom’.7 It is the most cherished rights
enjoyed by all as it provides right to speak, assemble and reside. Without these rights, there is no
meaning and significance of democracy. Out of all the rights, freedom of speech and expression
is one of the most cherished rights. It allows people to put forth their opinions and give
3
Article 19(2) of the Constitution of India, 1950.
4
Kesavananda Bharati Sripadagalvaru&Ors. v. State of Kerala &Anr, AIR 1973 SC 1461.
5
The Constitution of India, 1950.
6
Contempt of Courts Act, 1971
7
Article 19 of the Constitution of India, 1950.
12
suggestions and sometimes even to criticize the authorities. It is the backbone of political
freedom of the nation. Imagining a democratic nation without the freedom of speech and
expression is nothing more than a nightmare. The Indian constitution is the fundamental law of
the land, and the touchstone upon which the validity of all other statutes is measured. 8 This
section of the paper deals with how the courts of the country have safeguarded the interest of the
common citizens against the speech restrictive laws of the state.
Freedom of Speech and expression has different dimensions. This freedom includes the right to
propagate your thoughts and ideas through different channels. This right even provides liberty to
criticize the government and even the State has the duty to protect and safeguard this right of the
citizens. The Apex Court has even raised a question in S. Rangarajan v. P. Jagjivan Ram9“what
good is the protection of freedom of expression if the State does not take care to protect it?”
Freedom of Speech and Expression under the Indian Constitution is the primary source of free
discussion of the issues and challenges of the country.
The freedom of speech and expression includes right to acquire information and to disseminate
it.10 In addition, it also makes the government accountable to the democracy. The Supreme
Court has also observed that:
“The faith of a citizen is that political wisdom and virtue will sustain themselves in the free
market of ideas so long as the channels of communication are left open. The faith in the popular
government rests on the old dictum 'let the people have the truth and the freedom to discuss it
and all will go well.11”
Though, the Indian Constitution does not recognize right to press expressly unlike USA’s
Constitution12 but the Indian courts have recognized the same and held that right to ‘right to
press’ is included under Article 19(1)(a). The press is one of the significant sources through
which the government reaches out to people and also the grievances of the people are also being
brought before the government agencies. Press or media in India has been said to be the fourth
pillar of Indian democracy.13 The Preamble of Indian Constitution has guaranteed and intended
to secure to all citizens liberty of thought, expression and belief. In order to establish the same,
the Apex Court of the country in Ramesh Thappar v. State of Madras14 has clearly limited the
power of the executive by stating that there could not be any other means to restrict the power of
free speech and expression other than those provided in clause 2 of article 19.
8
Article 13 of Indian Constitution empowers the Court to declare any law unconstitutional if that violates Part III of
Indian Constitution
9
1989 SCR (2) 204
10
The DMK Party vs The State of Tamil Nadu on 20 December, 2005. The Court also observed that:
“Freedom of speech and expression is necessary for self-expression, which is an important means of free conscience
and self-fulfillment. It enables the people to contribute to debates of social and moral issues. It is the best way to
have a truest model of anything, since, it is only through it that the widest possible range of ideas can circulate.”
11
Bennett Coleman & co. vs. Union of India, AIR 1973 SC 106 at p.129, Para 79
12
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
13
Court On Its Own Motion vs State, 146 (2008) DLT 429
14
1957 SCR 930
13
Freedom of Speech and expression has always been so fundamental for any democracy that even
International conventions and treaties have also mentioned about it. Article 19 of UDHR 15
declares “everyone has the right to freedom of, opinion and expression, this right includes
freedom to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.”16
Apart from UDHR, other covenants have also attempted to priorities this right as Article 19 of
ICCPR17 states “everyone shall have the right to hold opinions without interference.”
In addition to this, European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950 also states that everyone has the right to freedom of expression.18
Significance of Independent Judicial System and Contempt of Court
The judiciary is considered as a last hope when a citizen fails to get justice anywhere. The
Supreme Court is the paragon of the Indian judiciary. An attack on the Supreme Court does not
only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court
but also may tend to lose the confidence in the mind of other judges in the country in its highest
court. Indian Judiciary is one of the major pillars on which the democracy of India stands. The
trust, faith and confidence on the judiciary by the citizen are sine qua non for the existence of
‘Rule of Law’ and ‘Dominance of legal Spirit’. For safeguarding the fundamental rights of the
citizens of this country, approaching the Apex Court of this country has also been made a
fundamental right which even cannot be suspended during emergency as well. In addition to this,
under Article 226 of Indian Constitution, any violation of fundamental as well as legal rights can
also be redressed by the High Courts of the State.
In the present democratic system, judges do not work for the benefit of the ruler, and they gained
the most esteemed position in the eyes of law. In a way, the judges certainly get their position
from the individuals, and so it follows that at some level, they should stay answerable to them.
The instant change in the political and social scenario has given the judges an essential function:
to remain totally independent and unbiased in the administration of equity for all. In this manner,
it seems absurd that the context of contempt law lies in the way that it must secure the authority
of the courts in the eyes of individuals. It should be established that in a democratic system, the
courts determine their definitive authority from the people, and a law gagging contradiction and
analysis from the individuals makes no sense. It is well established that Rule of Law is a basic
feature of the Constitution, and the Rule of Law is inherent in the Constitution in the sense of its
supremacy.19 It entails inter alia the right to obtain judicial redress through administration of
justice, which is the function of the Courts, and is imperative for the functioning of a civilized
society. Justice should be administer in a virtuous manner because judiciary is a Guardian of
15
Universal Declaration of Human Rights, 1948
16
Article 19 of the Universal Declaration of Human Rights, 1948 as cited in Human Rights.: A Source Book (1996)
17
International Covenant on Civil and Political Rights, 1966
18
Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
19
KesavanandaBharatiSripadagalvaru&Ors. v. State of Kerala &Anr., AIR 1973 SC 1461
14
Rule of Law and it is entrusted with the extra ordinary power to punish misconduct which aims
at undermining its authority either inside or outside the court.20 The Main cause of Contempt
Jurisdiction it to confirm the independence and dignity of the judiciary, so that it will help the
judges to decide cases without any fear and favor.
The Law of Contempt in the present time has become subject of debate, especially criminal
contempt as it on one hand upholds the supremacy of law and on the other it restricts our
fundamental right under Article 19(1)(a) of Indian Constitution. Next chapter of the paper in
brief deals with the present system of law of contempt in India.
Law Regarding Contempt of Court in India and Freedom of Speech and Expression
Indian legal system is highly inspired by common law principles. Contempt of court is no
exception to this. It is described as the Proteus of the Legal world.21According to Black’s Law
Dictionary Contempt of court means- “Any act which is calculated to embarrass, hinder, or
obstruct court in administration of justice, or which is calculated to lessen its authority or its
dignity, committed by a person who does any act in willful contravention of its authority or
dignity, or tending to impede or frustrate the administration of justice, or by one who, being
under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders
or fails to comply with an undertaking which he has given.”22
Indian, being a democracy values freedom of speech and expression immensely. However,
another factor which is to be considered it the independence and integrity of Indian judicial
system along with the confidence of people in the administration of justice. It thus makes the job
tougher to strike fine balance between the two. The freedom which allows to express your
opinions and thoughts also restrict us not to commit contempt. The primary reason for the same
is to preserve the authority of the courts and there should not be any obstruction in the
administration of the justice.
The Apex court has made an attempt to maintain a fine balance between the two in plethora of
cases. This part of the chapter will briefly deals with the same.
The Supreme Court of India in M.V.Jayarajan vs High Court of Kerala &Anr23 has observed
that:
“petitioner has the right of freedom of speech of expression, this postulates a temperate and
reasoned criticism and not a vitriolic, slanderous or abusive one; this right of free speech
certainly does not extend to inciting the public directly or insidiously to disobey Court orders.”
20
In Re : Vinay Chandra Mishra, AIR 1995 SC 2348
21
Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, Columbia Law Review, Vol. 43, No. 6 (Sep.,
1943), pp. 780-824 (45 pages),Published By: Columbia Law Review Association, Inc. (The word ‘proteus’ means a
sea god which is capable of changing shape at will.)
22
Black’s Law Dictionary, 11th Edition.
23
Criminal Appeal No. 2009 by 2011
15
The Court also observed that statement made by the Petitioner i.e. “if those judges have any self-
respect, they should resign and quit their offices” is something which is highly vitriolic and
should not get the shadow of free speech and expression.
It is indeed noteworthy that in India, freedom of speech and expression is not an absolute right
which a citizen enjoys rather it is subject to many restrictions. Contempt of Court being one of
them. No words or action of person should be allowed if that lowers the authority of the court in
India. Right to express is subject to different provisions of Indian Constitution.24
As mentioned above that Criminal Contempt directly hampers upon another fundamental right
i.e. right to speech and expression. Right to fair criticism comes under Article 19(1)(a) of Indian
Constitution. So, what would be fair criticism and how it is not a contempt is still a gray area
needs to be adjudicated and what is fair criticism and what is not is also being decided by
Constitutional Courts only. Considering this being a century old law but even till now, no fine
balance has been brought between these two aspects. Under Article 19(2) of Indian Constitution,
freedom of speech and expression can be restricted on the ground of Contempt of Court and that
has given the Indian courts herculean task to decide what comes under free speech and what is
contempt. There have been times, when the decision of the Supreme or High Courts have
become subject of criticism. The recent Prashant Bhushan Case is also one of the decisions of the
Supreme Court which has not been taken as it was, considering most of the people including the
members of the Bar remarked it to be wrong as whatever Prashant Bhushan did was just
exercising his fundamental right under article 19 (1) (a) of Indian Constitution. This part of the
paper deals with the long journey covered by the Indian Courts while striking a balance between
two non-comprisable principles which at a time can be a ‘right’ and an ‘offence’ at another.
The very first attempt made by the Apex Court of India to strike a balance between contempt and
freedom of speech and expression was done in Brahma Prakash Sharma v. State of Uttar
Pradesh25. This case revolved around the resolution passed by members of Executive Committee
of District Bar Association at Muzaffarnagar in Uttar Pradesh. The resolution dealt with the
conduct and incompetency of the two judicial officers both of whom functioned
At Muzaffarnagar. The relevant part of the resolution says “ Whereas the members of the
Association have had ample opportunity of forming an opinion of the judicial work of Sri
Kanhaiya Lal, Judicial Magistrate, and Shri Lalta Prasad, Revenue Officer, It is now their
considered opinion that the two officers are thoroughly incompetent in law, do not inspire
confidence in their judicial work, are given to stating wrong facts when passing orders and are
overbearing and discourteous to the litigant public and the lawyers alike..”
This resolution sparked the controversy that whether the resolution passed by the Executive
Committee by bar is contempt of Court or not. Against the order of the High Court of Allahabad,
this matter reached up to the Supreme Court of India. Allegations of scandalizing the court were
levelled against the members of the Bar. The Supreme Court while deciding the case has held
that “"in the first place, the reflection on the conduct or character of a judge in reference to the
24
Articles 19(2), 129 and 215 of the Constitution of India.
25
1954 SCR 1169
16
discharge of his judicial duties, would not be contempt if such reflection is made in the exercise
of the right of fair and reasonable criticism which every citizen possesses in respect of public
acts done in the seat of justice.”
These words of the Supreme Court are sufficient to differentiate what is contempt and what is
not. Fair and reasonable criticism of courts is even allowed considering the fact that courts are
also doing public acts.
The Supreme Court in Perspective Publications (P) Ltd. v/s State of Maharashtra26while
deciding the case has attempted to sum up the law relating to criminal contempt in India and had
given following points-
• Laws relating to contempt which includes scandalizing the Court has not gone obsolete.
• The summary jurisdiction by way of contempt must be exercised with great care and
caution and only when its exercise is necessary for the proper administration of law and
justice.
• It is open to anyone to express fair, reasonable and legitimate criticism of any act or
conduct of a Judge in his judicial capacity or even to make a proper and fair comment on
any decision given by him because "justice is not a cloistered virtue and she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments of
ordinary men".
• A distinction must be made between a mere libel or defamation of a Judge and what
amounts to a contempt of the court. The test in each case would be whether the impugned
publication is a mere defamatory attack on the Judge or whether it is calculated to
interfere with the due course of justice or the proper administration of law by this Court.
It is only in the latter case that it will be punishable as Contempt.
• The test will be whether the wrong is done to the Judge personally or it is done to the
public. The Hon'ble Court further held that the publication of a disparaging statement will
be an injury to the public if it tends to create an apprehension in the minds of the people
regarding the integrity, ability or fairness of the Judge or to deter actual and prospective
litigants from placing complete reliance upon the court's administration of justice or if it
is likely to cause embarrassment in the mind of the Judge himself in the discharge of his
judicial duties.27
The attempt of the Court has summed up every aspect of criminal contempt of courts in India.
Wrong committed against a judge personally or it is done to public are two different aspect and
both cannot be treated equally. One may be case of defamation and other is a case of Contempt
has been clarified by the Supreme court.
26
1969 SCR (2) 779
27
1969 SCR (2) 779
17
Another significant judgement of the Supreme Court where the Apex Court has re-clarified its
stance on contempt was Rustom Cowasjee Cooper v/s Union of India28. The court while deciding
held that “there is no doubt that the Court like any other institution does not enjoy immunity from
fair criticism"...." while fair and temperate criticism of this Court or any other Court even if
strong, may not be actionable, attributing improper motives, or tending to bring Judges or courts
into hatred and contempt or obstructing directly or indirectly with the functioning of courts is
serious contempt of which notice must and will be taken".
The Indian judiciary is not a non-immune institution. Right to fair criticism is even applicable to
them but that should not be in any way be bringing the judges or courts into hatred is one fact
which is needed to be considered while deciding any action of a person is contempt or not.
Law Commission 274 Report of Law on Contempt
The Law Commission of India in its 274th report to the Ministry of Law and Justice B.S.
Chauhan has recommended that it isn't important to make any alteration, to the Contempt of
Court Act, 1971, after a reference from the Government kept uniquely to Section 2(c) of the Act
1971. In the report named "Review Of Contempt Of Court Act 1971 (Limited To Section 2 Of
The Act)", the commission to arrive at the conclusion, has considered — Articles 129 and 215 of
the Constitution, expressing that as for the intensity of scorn under the Constitution, the said
Articles vest the Superior Courts with capacity to Punish for their contempt, and henceforth, the
Supreme Court and High Courts are authorized to investigate and penalize the contemnor even
without any enactment laying out their procedural power. Further, furthermore, Article 142(2) of
the Constitution likewise empowers Supreme Court to investigate and punish for its contempt.
Subsequently, the Commission expressed that the proposal to take out the arrangement
identifying with 'criminal contempt' inter alia 'contempt of courts' will have no effect on
authority of Constitutional Courts to penalize for contempt, as these commands are autonomous
of statutory arrangements.29
The commission observed High number of contempt cases: The Commission saw that there were
a large number of civil (96,993) and criminal (583) criminal cases pending in different High
Courts and the Supreme Court. The Commission notice that the large number of cases legitimize
the proceeding with significance of the Act. It exhibits that amending the meaning of contempt
may reduce the general effect of the law and decline the regard that individuals have for courts
and their power and working.
28
(1970) 2 SCC 298
29
Auroshree, Law Commission’s Review on amendment to “Contempt of Court Act”: Whether necessary
https://www.scconline.com/blog/post/2018/05/01/law-commissions-review-on-amendment-to-contempt-of-court-
act-whether
necessary/#:~:text=The%20Law%20Commission%20of%20India,c)%20of%20the%20Act%201971.(accessed on
24-08-2020)
18
International comparison: Corresponding to the offense of 'scandalizing the Court', the

Commission noticed that the United Kingdom had put an end the offense in its contempt laws. In
any case, it noticed that there were two variances in conditions in India and the United Kingdom,
which justified a continuation of the offense in India. To start with, India keeps on having a high
number of criminal contempt cases, while the last offense of Scandalizing the Court in the UK
was in 1931. Second, the offense of Scandalizing the Court keeps on being culpable in UK under
different laws. The Commission saw that annulling the offense in India would leave an
authoritative gap.30
Sufficient Protection: The Commission noticed that there are a few protections incorporated with
the Act to ensure against its abuse. For example, the Act contains provisions which set down
cases that don't add up to contempt and situations where contempt isn't punishable. These
positioning endorse that the courts won't indict all instances of contempt. The Commission
additionally noticed that the Act had withstood judicial scrutiny, and along these lines, there was
no motivation to alter it.31
Conclusion
The Indian Constitution has given an extraordinary power to the constitutional courts of this
nation. The Supreme Court is a defender of the fundamental rights of the citizens, as likewise is
enriched with an obligation to keep safe the other pillar of democratic system for example the
Executive and the Legislature, inside the constitutional limits. In the event that an attack is made
to shake the confidence that the public at large everywhere has in the foundation of legal
executive, such an attack must be managed firmly. Most likely, that it might be better as a rule
for the judiciary to receive a generously altruistic point of view in any event, when it is made out
of bona fide worry for development. In any case, when there shows up some plan and design
which have the inclination of harming the confidence in our legal framework and dampen the
Judges of the most elevated court by making malicious attack, those keen on keeping up
exclusive requirements of fearless impartial and unbending justice will have to stand strongly. If
the provisions are so narrowed in scope, there will be a reduction in impact. Such a change in the
law of contempt could potentially reduce the regard for or fear of the courts and their authority
and functioning; and, there is a chance that this may lead to an undesired increase in the
instances of deliberate denial and blasphemy of the courts.
30
Review of the Contempt of Courts Act, 1971, https://www.prsindia.org/report-summaries/review-contempt-courts-
act-1971 (accessed on 24-08-2020)
31
Ibid.
19
AN ANALYSIS OF THE RIGHT TO HEALTH IN INDIA
Chaitali Wadhwa1
Abstract
There is no one definition of the right to health that could be applied uniformly across all
nations, societies and circumstances. For clarity, we may turn to the preamble and Constitution
of the World Health Organization. Despite the ambiguity, the right to health is now recognized
as a basic human right in international law. It has also found its way in national legislations in
India. Though it is not expressly mentioned in the Indian Constitution, it is implied under the
fundamental right to health. The paper highlights the status of the right to health as a
Constitutional right, and its growth through precedents. Part I of the paper introduces the
concept of the right to health as provided in International Law. The author distinguishes
standard of health, to the right to health. The author also gives reference to the guiding
principles which form the framework of this right. In parts II and III, the author draws the
attention of the readers to the constitutional and legislative provisions, along with landmark
judgments. Through these segments of the paper, the author will provide the reader with a better
understanding of the legal position in India on the right to health. Finally, while understanding
that lack of implementation is the main reason for the denial of this right, in part IV, the author
proposes general and specific measures to address the issue. These include suggestions for the
workplace, those for children and suggestions applicable in a restrictive family environment. The
author also sheds light on the traditional and orthodox practices which have adverse effects on
the health of a woman. Part V is the conclusion.
Key phrases – Right to Health, Constitution, fundamental right, human right, the highest
attainable standard of health
Introduction
Till a few decades ago, there were no discussions on the importance of health. This trend has
drastically witnessed a change at conferences at the national and international level. Good health
is considered a primary aspect of human survival. Human beings, situated at the centre of
concerns for sustainable development, are entitled to a healthy and productive life in harmony
with nature.2 Health is an essential matter for individuals as well as nations.
The concept of the right to health is a broad one, and it envelopes a variety of definitions which
have been given by various conventions and authors. Each country and each region have
differing needs and circumstances, giving birth to divergent definitions. The very nature of the
right, with its inherent “progressive-realization principle”, dooms any attempt to develop the
right uniformly. The most widely accepted definition, though, is the one given by the World
1
Research Associate, Faculty of Law, Manav Rachna University, Faridabad, Haryana-121004;
[email protected]; 601-Agni, DRDO Residential Complex, Timarpur, Delhi-10054
2
Report of the International Conference on Population and Development, U.N. Doc. A/CONF.171/13 (1994)
20
Health Organization (hereinafter the WHO). The Preamble of the WHO Constitution defines
health as:
“A state of complete physical, mental and social well-being and not merely the absence of
disease or infirmity.”3
This definition is indicative that health is a dynamic state of well-being. Quality health is an
essential requirement for every person.4 A health claim is not synonymous with a demand to cure
incurable diseases. Neither is it a claim to alter unalterable physical attributes or to reverse the
ageing process.5 The right to health includes a healthy mind, body and also provisions of
adequate healthcare. A healthy body and mind are essential for a person to realise his true
potential and to be able to contribute to the growth of society.
The right to health includes both positive as well as negative aspects. The positive aspect
imposes a duty on a state to intervene or to act, to the extent of its available resources, to prevent,
reduce, or address severe threats to the health of individuals or the population. Examples of the
negative components include the duty of states to refrain from barring access to health-related
information and the duty of states not to take health-harming actions.
Instead of the right to health, the phrase “highest attainable standard of health” is preferred by
scholars and academicians as it recognises the importance of contributing factors. The concept of
the highest attainable standard of health considers the individual’s biological as well as socio-
economic pre-conditions.6 Court systems and the right to a fair trial and are directly linked to
health systems and the right to the highest attainable standard of health. Over the last few years,
national and international organisations, human rights mechanisms and courts have begun to
explore what the right to the highest attainable standard of health means and how it can be put
into practice.
To provide clarity, the Committee on Economic, Social and Cultural Rights laid down a guiding
framework on the right to health. The guidelines include a set of general principles which
provide the four qualitative elements termed as “AAAQ”.
a. Availability
States should provide adequate facilities and healthcare in all geographical areas and to all
communities. These facilities include infrastructure, consultants, health personnel, unexpired
drugs and scientifically approved medical equipment in sufficient quantities, and immunisation
3
Preamble to the Constitution of WHO, signed on July 22, 1946, 14 U.N.T.S. 185
4
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948) [hereinafter UDHR]
5
Virginia A. Leary, The Right to Health in International Human Rights Law, 1 HEALTH AND HUMAN RIGHTS 25
(1994)
6
International Covenant on Economic, Social and Cultural Rights, entered into force Dec. 16, 1966, 993 U.N.T.S. 3
(hereinafter ICESCR)
21
programmes against major infectious diseases. Availability also comprises preventive public
health strategies and information as regards safe drinking water and adequate sanitation facilities.
It covers within its ambit promotional activities, such as awareness-raising campaigns against
HIV/AIDS.
Human rights treaty monitoring bodies have also repeatedly recommended that States should
make family planning services, including contraception, widely available. In furtherance of this,
States should also ensure in schools the provision of sexual and reproductive health education,
including the use of contraceptive methods. Failure to ensure access to a lawful abortion for
teenage girls amounts to a violation of their rights to privacy, non-discrimination and protection
against inhuman and degrading treatment.7
b. Accessibility
Accessibility comprises non-discrimination, particularly for the marginalised and disadvantaged

sections of the population, in law and fact. Facilities and care should be physically accessible, as
well as economically accessible. Persons of all genders, race, caste, class and religion are entitled
to quality health care, on an equitable basis.
The element of accessibility is often sub-categorised into six components. The first component is
non-discrimination, the second, third and fourth are accessibility – physical, economic (also
known as affordability) and information accessibility. Component number five is acceptability,
and the final component is quality. These components are overlapping, and it is challenging to
have water-tight definitions or boundaries for them. Accessibility involves the allocation of
resources, which is a two-stage process. At the first stage, the State allocates resources from the
whole state budget to health. At the second stage, the State further distributes these allocations to
satisfy different demands within the health system.8
c. Acceptability
The categories of persons that are most prone to diseases are ethnic minorities, indigenous
populations, older persons, women and children, and persons with disabilities. The healthcare
facilities should be respectful of the culture of individuals, minorities, peoples and communities,
sensitive to gender and lifecycle requirements. Providers of health care should take into
consideration factors such as culture, gender and age when providing facilities and treatment.
They should treat the patient with dignity and respect while maintaining the confidentiality of
data. Culturally acceptable treatments are sensitive towards minorities and communities.
Treatments should also take into account the traditional healing practices and indigenous plants
and herbs used to cure diseases.
7
KNLH v Peru, Human Right Commission, Communication No 1153/2003, UN Doc CCPR/C/85/1153/2003 (22
November 2005)
8
ShenganQiu and Gillian Macnaughtan, Mechanisms Of Accountability For The Realization Of The Right To Health
In China, HEALTH AND HUMAN RIGHTS JOURNAL (2017)
22
d. Quality
The healthcare provided to members of society must scientific and medically appropriate and of
good quality. Provisions of expensive machinery to a health centre may not be scientifically and
medically appropriate where human and technical resources are scarce, as in many less
developed countries. The State should provide these services based on the principle of equity.
Such equitable provisions would ensure that there should not be a disproportionate burden on the
poorer households compared to the members of the society belonging to the upper class. Both
public and private healthcare treatment should be affordable to people.
In addition to the above four mentioned guiding principles, there has been an addition of two
more components, now making the framework of “AAAQ-AP” structure.
e. Accountability
Accountability is a key component among the ones mentioned above. Accountability is a crucial
aspect of ensuring that States meet their obligations under international and domestic legislation.
There are many types of accountability mechanisms, including judicial, quasi-judicial,
administrative, political, and social mechanisms.9 The narrower understanding of accountability
is ‘blame and punishment’. On the other hand, the broader, more accurate meaning is a process
to determine what is working (so it can be repeated) and what is not (so it can be adjusted).10
Accountability mechanisms ensure participation by the Government, groups, and individuals.
f. Participation
The public should have a representation in the policy-making exercises that deal with health and
health-related services. States should encourage political participation through a democratic
system of elections, and also by providing for public enquiries regarding planned health sector
reform. The element of participation has been discussed in detail in Part IV under the sub-
heading of ‘good governance’. For the sake of brevity, it has not been repeated here.
Constitutional and Legislative Provisions in India
India being a welfare state, has to ensure the creation and sustenance of conditions congenial to
good health.11
a. Constitutional Provisions
The Constitution of India is the supreme law of the land and the soul of the nation.12 Though the
right to health has not expressly been laid down under Part III of the Constitution, it is now
9
H. POTTS, ACCOUNTABILITY AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH
17 (Colchester, UK: University of Essex Human Rights Centre, 2008)
10
P. Hunt, Report of The Special Rapporteur On The Rights To Health, UN Doc. A/HRC/4/28. (2007) ¶ 46
11
Vincent Panikurlangara v. Union of India, AIR 1987 SC 990
12
P. R. GUPTA, SOUL OF THE NATION – CONSTITUTION OF INDIA, 1 (1st ed., 2016)
23
impliedly a fundamental right. Through evolutions in the law, the definition of life under Article
21 of the Constitution has expanded and envelopes under it several other rights, including the
right to health. The apex court has explicitly held the right to health to be an integral factor of a
meaningful right to life.13
The Supreme Court through its judgments has widened the scope of Article 21. The right to
medical care is recognized under Article 21 read with Articles 39(e), 41 and 43.14The Apex
Court held that the in a welfare state it was the primary duty of the Government to provide
welfare to its people. Provision of adequate medical facilities is an obligation that the
Government must perform15. The Court held that government hospitals run by the State are
duty-bound to extend medical assistance for preserving human life It is the obligation of the
persons in charge of health to preserve the life of individuals whether they are innocent, or
criminals liable to punishment16. Failure on the part of a government hospital to provide timely
medical treatment to a person in need of such treatment results in the violation of his right to life.
Protection of the right to health is a sacred obligation upon the State. Though Part III does not
expressly provide the right to health, the Constitution makers by bringing it under Part IV have
imposed an obligation on the State to improve the conditions of healthcare for the people. The
State has to safeguard and promote public health by advancing public hygiene and ensuring the
prevention of the spread of diseases. Hygiene can be achieved through adequate sanitation
facilities, pest and vermin control, and by ensuring widespread efficient and free medical
services throughout the country with particular emphasis on the remote and backward areas.17
Article 4718 puts a duty on the State to raise the level of nutrition, the standard of living, and to
improve public health. This duty also embodies the obligation of the State to protect poverty-
stricken people who are consumers of sub-standard food from injurious effects. There is a
corresponding duty on the Food Corporation of India to prevent the sub-standard quality of food
from reaching the market. Since the Food Corporation of India is an agency of the State, it must
conform to the principle enshrined in Article 47 of the Constitution.19
The Constitution gives Panchayats the power and authority to make decisions about matters
related to health.20 These include taking steps for sanitation and primary health care, such as
hospitals and dispensaries.21 Municipalities have been empowered under part IX-A of the
13
Consumer Education and Research Center v. UOI, AIR 1995 SC 636
14
Kirloskar Brothers Ltd. v. Employees’ State Insurance Corporation, (1996) 2 SCC 682
15
Paschim Banga Khet Mazdoor Samity &Ors v. State of West Bengal &Ors, (1996) 4 SCC 37
16
Parmanand Katara v. Union of India, AIR 1989 SC 2039
17
DR. P.K. AGRAWAL AND DR. K.N. CHATURVEDI, COMMENTARY ON THE CONSTITUTION OF INDIA, 52 (2016)
18
Article 47, The Constitution of India
19
Tapan Kumar v. Food Corporation of India, (1996) 6 SCC 101
20
Article 243-G, Constitution of India 1950
21
Id., Schedule 11
24
Constitution to ensure water supply for domestic, industrial and commercial purpose. 22 The
municipalities must take measures for maintaining public health, sanitation conservancy, and
safeguarding the interests of the weaker sections of society.23
b. Other Legislative Provisions
The link of health with laws, policies, and practices sustains a functional democracy and focuses
on accountability. It elevates disparities in healthcare and quality treatment to fundamental
questions of democracy and social justice. By enacting social welfare legislations, the Indian
Parliament has done a lot to improve the social patterns of citizens.
The Factories Act, 1948 makes provisions for health24, safety25 and welfare26 of workers. It
recognises that health and strength of a worker is an essential facet of the right to life.27 The Act
puts an obligation on the occupier of the factory to make adequate ventilation for the circulation
of fresh air.28 There is also the inclusion of a provision29 with the view to prevent overcrowding
in the factory. It also provides specific safeguards against using and the handling of hazardous
substances by occupiers of factories.30 The Act lays down provisions to ensure that safe, clean
drinking water is provided to the workers.31
The object of the Plantation Labour Act, 1951 is to provide for the welfare of labourand
regulation of the conditions of work in plantations. The Act provides a timeframe prohibiting
women from working between dusk to dawn.32 The Act makes specific provisions about health
under Chapter III. These include provisions for drinking water33, conservancy34 and medical
facilities35. The Act also provides a separate chapter36 concerning the welfare, thus providing for
canteens37, creches38, recreational facilities39, educational facilities40 and housing facilities41.
22
Id., Article 243-W
23
Id., Schedule 11
24
Factories Act 1948, §§ 11-20
25
Id., §§ 21-41
26
Id., §§ 42-50
27
C.E.S.C. Ltd. v. Subhash Chandra Bose & Others, AIR 1992 SC 573
28
Id., §13
29
Id., §16
30
Id., §41-A to § 41-H
31
Id., §18
32
Plantation Labour Act, 1951, §25
33
Id., §8
34
Id., §9
35
Id., §10
36
Id., Chapter IV
37
Id., §11
38
Id., §12
39
Id., §13
40
Id., §14
41
Id., §15
25
The aim of the Mines Act, 1952 is the regulation of labour and safety in mines. Chapter V of the
Act lays down the provisions as to health and safety. Chapter VI deals with the hours and
limitations of employment. There are provisions regulating employment of women 42. It prohibits
the employment of persons below eighteen years of age.
The Food Safety and Standards Act, 200643 lays down science-based standards for articles of
food. It provides guidelines to be followed by the Central and State governments to achieve an
appropriate level of health and life. It prohibits the use of food additives, contaminants, heavy
metals and processing unless it is per the provisions of the Act. It also imposes corresponding
obligations and liabilities on food business operators in the case where the food is unsafe,
misbranded or sub-standard. It further imposes penalties and punishments in case there is selling
of such misbranded or sub-standard food.
Similarly, The Prevention of Food Adulteration Act 1954 is a consumer protection legislation
designed to prevent and curb adulteration of foods. It is a specific law, which aims to fill any
gaps that continued to exist due to the loose and unfocused adulteration laws provided under the
Indian Penal Code 1860. Various authorities have been established under the Act to ensure
uniformity in procedures and punishments.
Some legislations mainly deal with drugs. The existence of drugs in India was ignorable before
the beginning of the 20th century. It was after the formation of the Chopra Committee in 1931
that there was a gradual development of drug laws. The statutes dealing with drugs and
pharmaceuticals include The Epidemic Diseases Act 1897, The Drugs and Cosmetics Act 1940,
The Narcotic Drugs and Psychotropic Substances Act 1985 are a few examples.
Special legislations made for the disabled are note-worthy because they are evidence of the
progressive nature of society. People are gradually realising and understanding that there should
not be any stigmas attached to such illnesses. The acts dealing with disabled include are The
Mental Health Act 1987, The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act 1995, The National Trust (For the welfare of persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities) Act 1999, and The
Rehabilitation Council Act of India (RCI, 1992).
Special laws enacted for the benefit of women are Pre-conception and Pre-Natal Diagnostic
Techniques (Regulation and prevention of misuse) Act 1994, The Maternity Benefits Act 1961
and The Medical Termination of Pregnancy Act, 1971. Abortions are now legal under certain
circumstances. Pre-natal diagnostic techniques shall be used only if certain conditions have been
fulfilled.
42
§46, Mines Act 1952
43
Food Safety and Standards Act, 2006
26
Specific legislations dealing particularly with children include The Child Labour (Prohibition
and Regulation) Act 1986, The Infant Milk Substitutes, Feeding Bottles and Infant Foods
(Regulation of Production, Supply and Distribution) Act 1992 and The Juvenile Justice (Care
and Protection) Act, 2015.
Judgments and Precedents

The Supreme Court has examined44 the issue of the right to health as a constitutional right. It
observed that rights and duties go hand in hand. The rights of one person correlate to duty upon
another individual, employer, government or authority. Though the Government is taking the
initiative by setting up hospitals and health centers, these must be within reach of the public and
sufficient quality. Maintenance and improvement of public health is the duty of the State to fulfil
its constitutional obligations cast on it under Article 21 of the Constitution.45
Preventing pollution is a step towards attaining an adequate standard of health. 46 Citizens have a
fundamental duty to protect and improve the natural environment, including forests, lakes, rivers,
and wildlife.47 Protection of the environment is not only a duty of the citizens but an obligation
of the State as well. Preservation of nature’s gifts is required for fruitfully enjoying the right to
life.48 It includes the right to pollution-free water and air.49
In the judgement of T.Damodar Rao50, Justice P.A. Chaudhary held that the courts as enforcing
organs of the constitutional objectives had the duty to forbid actions of the State as well as the
citizens which would upset the ecological and environmental balance.51 The Supreme Court held
that environmental, ecological, air and water pollution should be regarded as amounting to a
violation of the right to health covered under Article 21 of the Constitution.52 Positive steps
should be taken to eliminate air and water pollution for the better enjoyment of life and dignity.53
Another landmark case that came to light was Savita Gulyani v. Orchid Hospital & Heart Centre
& Others54. Sh. Naik Subedar K.L. Gulyani received a deep knife wound in his right thigh in a
pick-pocket attempt on the bus. He started bleeding and managed to get down the bus but
44
State of Punjab v. Ram LubhayaBagga, AIR 1998 SC 1703
45
Vincent Panikurlangara v. Union of India, AIR 1987 SC 990; see also Unnikrishnan, JP v. State of A.P, AIR 1993
SC 2178
46
Javed v. State of Haryana, AIR 2003 SC 3057
47
Article 51-A, Constitution of India
48
T. Ramakrishna Rao v. Hyderabad Development Authority, 2002 (2) ALT 193
49
Subhash Kumar v. State of Bihar, AIR 1991 SC 420; (1991) 1 SCC 598
50
T. Damodar Rao and others v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171
51
Id.
52
Virender Gaur v. State of Haryana, (1995) 2 SCC 577; see also Shantistar Builders v. Narayan KhimalalTotame,
(1990) 2 SCJ 10
53
M.C. Mehta v. Union of India, (1987) 4 SCC 463; see also Rural Litigation and Entitlement Kendra v. State of
U.P, AIR 1987 SC 359; and Subhash Kumar v. State of Bihar, (1991) 1 SCC 598
54
Savita Gulyani v. Orchid Hospital & Heart Centre & Others, Appeal No. A-2008/752 (Arising from the order
dated 16.06.2008 passed by District Forum (West) JanakPuri, New Delhi, in Complaint Case No.52/2006)
27
collapsed immediately on the roadside at a place, which was just in front of the clinic of a doctor
named Dr A K Manocha. As per the evidence on record, the doctor came out of his clinic, saw
the injured man bleeding profusely right outside his clinic, but instead of rendering any
emergency life-saving treatment he just turned back and closed his clinic. The injured army man
had bled to death for want of medical help. The Delhi State Consumer Disputes Redressal
Commission observed that “every doctor is bound by oath to render help to any person needing
help”.
Further, the Court reiterated that a modified version of Hippocratic Oath is now part of the
Indian Medical Council (Professional Conduct, Ethics and Etiquettes) Regulations-2002. This
Oath is now binding and has the force of law. The Court emphasised that every patient has a
right to get treatment in case of an emergency.
Proposed General and Specific Measures
The right to health is categorised by conceptual confusion and lack of implementation.55 In India,
we see that healthcare has not been a priority of the Indian State. The low level of investment of
resources and rapid, unregulated and uncontrolled development in the private health sector is a
reflection of this callous attitude.
Suggestions that could bring a transformation in the right to healthcare include good governance,
measures for women and children, and protection against traditional restrictive health practices.
a. Good Governance
Society can progress only when the nations take upon the obligation to abolish harmful and
traditional practices. For this, States should implement a variety of legislative, administrative and
social measures. The underlying conditions of daily life should be improved. This includes the
circumstances of birth, growth and work. The term “good” in “good governance” refers to
distinctive features that characterise how governments formulate and implement policies, rather
than the content of policies themselves. Good governance maximises the capacity of States to
develop and implement policies for the public’s benefit, to manage resources prudently, and to
provide services efficiently and effectively.56
Countries should integrate the following six principles into the law reform process: stewardship,
transparency, participation, fairness, accountability and following the rule of law.57
55
BRIGIT TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW, 260 (1999)
56
World Bank, “Managing development: the governance dimension: a discussion paper”, Washington (DC) 1991
57
Lawrence O. Gostinet al.“Advancing the Right to Health: The Vital Role of Law”, 107 AMERICAN JOURNAL OF
PUBLIC HEALTH 1755 (2017)
28
i) Stewardship means the “careful and responsible management of something entrusted

to one’s care”.58 Ministries and ministers who work to reform public health laws
must exercise stewardship, putting aside personal desires and working to maximise
the health interests of the people they serve.
ii) Transparency means that, as far as possible, the process of developing, implementing
and enforcing the law should be open and visible to the public. Public forums,
parliamentary debates and a political environment are processes that could favour
transparency.
iii) Thirdly, there should be the participation of communities, civil society groups, public
health organisations and other stakeholders. Publishing discussion papers and making
draft legislation available (including on the Internet) is an effective mechanism to
ensure participation of the community and also maintain transparency.
iv) All persons are entitled to the right to health, and governments should abstain from
discrimination while fulfilling their obligations in this regard. There should be
fairness. Fairness covers within its ambit two concepts – the absence of
discrimination, and the presence of special treatment to vulnerable groups. States
must ensure that individuals and vulnerable groups do not miss out on health care and
health services because of their inability to pay.
v) Accountability means taking responsibility for the success and failure of laws and
policies. Governments should allocate resources to ensure that laws are administered
effectively at both national and local levels. A detailed discussion on the element of
accountability has been covered above in the chapter The Foundations of Right to
Health.
vi) The principle of the rule of law means that all persons, officials and institutions,
including the State itself, are accountable under the law. This law is publicly
disseminated, equally enforced, independently adjudicated, and consistent with
international human rights standards.
Further, inequitable distribution of power, resources and income should be balanced out.
Inequities are seen from the conditions of early childhood, schooling and education, the nature of
employment and working conditions, the physical form of the built environment, and the quality
of the natural environment in which people reside. Social stratification determines different
access to and utilisation of medical care and facilities. Attention needs to be paid to specific
groups of the international community, including, rights of children, rights of women, rights of
old-aged, rights of the indigenous people, rights of disabled and rights of other marginalised
sections of the society. The Government should take a comprehensive approach to prioritise the
health rights of the citizens and the progressive realisation of these rights.
58
World Health Organization, “The World Health Report 2000: Health systems: improving performance”, 2000
29
b. Measures for Women and Children
Women’s inferior status and the problem of oppression grow not only from the inequalities
between men and women but rather as a function of gender discrimination. The harm faced by
women occurs within homes. Girls are incredibly vulnerable and fall prey to oppressive
practices.
As concerned about the health of infants, proper nutrition is crucial and begins in the womb with
adequately nourished mothers. Mothers and children need continuous care and protection from
pre-pregnancy, through pregnancy and childbirth, to the early days and years of life. Access to
pre-natal, perinatal, neonatal, and postnatal care is a progressive step towards achieving healthy
development of child and woman. This should be coupled with receipt of the information on
family planning and emergency obstetric services.
Women should be given various choices in health care and be adequately informed about such
choices. The concept of informed consent includes two concepts – informed consent or dissent,
as well as the right to un-coerced choices. Women should have a sufficient understanding of
proposed interventions, implications of refusal of treatment, and availability of alternative forms
of management. The role of such information is to contribute to the decision-making process. A
woman should also be allowed to give her consent freely, without being subject to any form of
coercion, force, threat or over-inducement. There should not be any addition to the pressures that
the woman is already experiencing. Women, being reluctant to appear ungrateful or non-
compliant, often blindly agree to the treatment being proposed to them. If those with superior
knowledge advise them on the methods to be followed, women do not bat an eyelid and accept
the advice being tendered to them.
c. Protection Against Harmful Traditional Practices
Traditional cultures and beliefs have been passed on from generation to generation. While some
of these may be beneficial to the people, others are discriminatory and harmful.
The spread of awareness and education in urban areas has fostered a broad outlook, but in rural
areas, most of the techniques employed are still restrictive. Often these harmful practices target
women. Actions must be taken to shield women from orthodox practices that deny them their full
reproductive rights. States must spread education and awareness about the ill effects of these
harmful and restrictive health practices, and additionally, use legal prohibitions where
appropriate.59
There is a need to adopt effective and appropriate measures to abolish harmful traditional
practices affecting the health of children, particularly girls, including early marriage, female
59
Article 5(a), Convention on the Elimination of Discrimination Against Women, entered into force Dec.18, 1979,
1249 U.N.T.S. 13
30
genital mutilation, preferential feeding and care of male children.60 Female genital mutilation, for
instance, reflects a stereotypical perception that women may legitimately be exposed to non-
therapeutic surgery in order to comply with the gender-specific norms of their community. It is
believed that, by mutilating female's genital organs, her sexuality will be controlled; but above
all, it is to ensure woman’s virginity before marriage and chastity after that. 61 The loss of
virginity of women before marriage is a more significant stigma as compared to the loss of
virginity by a man. It is also an obstacle preventing a woman from marrying without any fingers
being pointed at her. This practice denies the girl child good health, education, recreation,
economic opportunity and the right to choose her partner. Denial of these rights results in a
violation of the Convention on the Rights of Child.62 The consequences of this practice are both
short-term and long-term in nature. It results in severe health complications and psychological
problems. Mood swings, irritability, constant depression and anxiety are more frequently
observed among teenage girls who have been subjected to this horrific practice.63
Another common orthodox practice prevalent in India is the preference of the male child.
Discrimination in the feeding and care of female children is the cause of high rates of mortality
and malnutrition among the girl child in these nations. Age of marriage is a factor contributing to
the violation of women’s rights.64 Girls from communities where early marriages occur are also
victims of son preferential treatment. Early marriage is a primary cause of premature pregnancies
which pose severe risks to the life of the mother and child.
Preferential treatment is also witnessed where food is scarce due to poor climatic conditions,
poor agriculture or due to the pitiable socio-economic conditions of the family. The sequence of
feeding in such a family begins from the father or father-in-law, followed by the husband. The
food then is shared with the sons, and finally, if there is any iota of grains left, they are given to
the women of the house – the mother and daughters. In these societies, the survival of the men
plays a paramount role in the distribution of resources. The health of the male members is given
precedence over that of the females. New-born girls are breast-fed for a shorter period than new-
born males.
The right to health under the ICESCR does not incorporate specific obligation of member States
to abolish harmful traditional practices. One of the primary reasons why these practices persisted
in the past is that neither the governments of nations nor the international community was
initially concerned with these harmful practices. They were treated as ethical and moral in the
eyes of those practising them and did not receive any objections. Blind adherence to practices
60
W.H.A. Res. 47.10, World Health Assembly, 47 th Session (1994)
61
UN Office of the High Commissioner for Human Rights, Fact Sheet No. 23, Harmful Traditional Practices
Affecting the Health of Women and Children (1995)
62
Convention on the Rights of Child, entered into force Sept. 2, 1990, 1577 U.N.T.S. 3
63
EFUADORKENOO, CUTTING THE ROSE: FEMALE GENITAL MUTILATION- THE PRACTICE AND ITS PREVENTION (1994)
64
Report of the Economic and Social Council, UN ECOSOC, 50th Sess., U.N. Doc. E/CN.4/1995/42 (1994), ¶165
31
and state inaction about customs and traditions was a significant cause of large-scale violence
against women.65
However, over time, the attitude of the people has started to change. The international
community has begun to recognise the importance of spreading awareness amongst women who,
because of their ignorance and lack of resources, continued to endure pain, suffering and even
death, without batting an eyelid.
Health professionals and medical advisors who misguide women on the choice of treatment
should be held liable for professional misconduct. Such unethical professional misbehaviour
should be punished. The failure to adequately disclose information should be treated as an
offence of medical negligence. The laws made for governing the health of women should be
scrutinised to ensure that they do not discriminate against women. Trivial sex-related stereotypes
should not prohibit women from being treated on merits. For example, pregnancy-related
disadvantages should not be an obstacle to getting an education or employment. Laws that deny
or restrict women’s access to health services, or make access dependent on another’s
authorisation results in impairment of women’s rights.66
d. At the Workplace
The conditions of work also affect health and health equity. Adverse working conditions can
expose individuals to a range of physical health hazards and tend to cluster in lower-status
occupations.
The Government is responsible for providing the infrastructure, the laws and services necessary
to ensure that workers remain employable and that enterprises flourish. While workers have a
fundamental right to work under safe and healthy conditions, employers have a corresponding
fundamental duty to provide a safe and healthy workplace. The employers must take steps to
improve the working conditions, prevent exposure to harmful and toxic substances, eradicate
poverty, alleviate social inequities, reduce exposure to physical and psychosocial hazards, and
enhance opportunities for health and well-being. Health hazards should be minimised as far as
possible. Control of diseases can be made more effective by periodical check-ups, surveillance
and data collection schemes. Regular screening programmes would help develop preventive,
curative, rehabilitative, and reformative health services.
The Constitution of the International Labour Organisation specially provides for the protection of
the worker against sickness, disease and injury arising out of his employment. The International
Labour Organisation establishes conventions and recommendations that are universal standards
65
Id.
66
Zohra Rasekh, Heidi M. Bauer, M. Michele Manos & Vincent Iacopino, Women's Health and Human Rights in
Afghanistan, THE JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION (1998)
32
for health rights in workplaces. 28th April is celebrated as “World Day for Safety and Health” at
work.
Conclusion
The right to health has varying definitions under international and national legislations. Despite
there being many interpretations of human dignity, there is not one meaningful conceptual
foundation for the right to health. Most countries have recognised the right to health and related
obligations by ratifying the International Covenant on Economic, Social and Cultural Rights.
However, despite the differences in wording, the essentials of each definition remain the same.
There have been developments in the means to achieve the right to health. It is now recognised
as a fundamental right in several countries, including India.
Today, there are numerous health movements and approaches, including health equity, primary
health care, health promotion, social determinants, health security, the continuum of care,
biomedical. Despite the notable evolution in the laws and ideologies, there is still a long way to
go. Accommodating and comprehensive public laws need to be implemented by nations. There is
a need to eliminate all forms of disparities and discriminations. Equitable, as well as equal
treatment, needs to be provided to all members of society. Tax-based funding for universal
coverage of essential health packages, regulations of private providers, and strengthening of
implementation systems are some steps that could be taken for attainment of the highest standard
of health.
Progressive governments must be persuaded to integrate the right across their policy-making
processes, following their legal obligations. WHO and other international organisations must be
prevailed upon to champion the right to the highest attainable standard of health. Civil society
organisations have to campaign around health and human rights.
Questions surrounding the right to health, universal healthcare, and a healthy lifestyle will
continue to dominate deliberations in the international community, as well as on the domestic
front. The society has come a long way, but there is a long way to go, and many more obstacles
to overcome.
33
IMPACT OF INTELLECTUAL PROPERTY RIGHTS ON ECONOMIC GROWTH
Reet Singh1
Abstract
This paper provides an overview on the impact of intellectual property law on the economy. It
talks about the positive impact and the negative impact, the effect on potential gain and loss
depending on the market and other business regulation, competition and technological
development etc. there are governments all over the world who want to improve their economy
and growth in the sector of technology, market and information which will help in the growth of
new virtual products and services. There are still many developing countries which do not
depend on IPR protection nor foster innovation. While developed countries push for strong
protection of IPR in bilateral, regional and multilateral actions.
Key Words: Intellectual property rights, Economy
Introduction
The question of how Intellectual property law effect the economic growth depends on many
factors; the main factor is the particular circumstance in each country. The stronger the system of
protection of intellectual property stronger will be economy. There are many evidences that IPR
could increase the overall economic growth and bring in technological growth and help in the
overall growth in every prospect which would promote effective competition2.
According to TRIPS (Trade related aspect of Intellectual property rights) in WTO there have
been many questions regarding the impact on economic growth 3. The reasons given where first,
there many factors which effect the economic growth which would lead to domination on the
growth of IPR with factors like market openness, micro economics and macroeconomics4.
Secondly, many economics theories also state that IPRs will have both positive and negative
impact however that will depend on various circumstances in every country. However, it can be
said that IPR is structured in a way that may favour the different competitions within the system
supported with many rights and obligations5.
1
Prof of Law, M.S Ramaiah University of Applied Science, Bengaluru, India.
2
See Robert E. Evenson & Larry E. Westphal, Technological Change and Technology Strategy, in 3A
HANDBOOK OF DEVELOPMENT ECONOMICS 2209, 2229-30 (Jere Behrman & T.N. Srinivasan eds. 1995);
Keith E. Maskus, The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and
Technology Transfer, 9 DuKE J. COMP & INT'L L. 109, 128-38, 149 (1998) [hereinafter Maskus, Foreign Direct
Investment]; Carlos A. Primo Braga et al., Intellectual Property Rights and Economic Development (1998)
(unpublished manuscript, Background Paper for the World Development Report, on file with the author).
3
David M. Gould and William C. Gruben (1996) The Role of Intellectual Property Rights in Economic Growth. J.
DEV. ECON 323, 334–35.
4
Griffith, R. (2000) How Important is Business R&D for Economic Growth and Should the Government Subsidise
It? Briefing Note No. 12. London: Institute for Fiscal Studies (http://www.ifs.org.uk/innovation/randdcredit.pdf).
5
De Soto, H. (2000) The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else.
New York: Basic Books
34
1. Purpose
There are two main issues which will be discussed in the paper:
1) The factors which effect the growth of an economy due to IPR
2) The various theories regarding how IPR improves the economy
3) The various policies which will help in various IPR regimes in developing countries.
2. Research Methodology
The reason I chose this topic is because there are two sides to a coin
Limitation of the paper are:
• Comparison is done with few selective countries
• The research material has been taken from various research papers written in English.
3. The Relationship between IPR and Economic Growth
There are two main economic objective for protection of intellectual property protection1.
First, it is important to invest in the knowledge creation, business growth and new goods and
service. Without any competition companies will not want to invest in research and other
commercialization activities2. Weak IPR create negative economic growth as they fail to
overcome the problem of reach and development and face risks in competitive areas in private
markets3.
Second, importance of encouraging right holders to place their inventions and ideas on market as
sharing information is non-rival and many developers may find it difficult to exclude others from
using it.
In economic terms it is efficient to provide wide access to new technologies and products4. There
is a fundamental trade-off between the overall protections of IPR which would limit the social
gains from various inventions du to reduction in incentives5. The weak system would reduce
creativity as it fails to provide adequate returns on various investments.
1
Rafiquzzaman, Mohammed (2002) The Impact of Patent Rights on International Trade: Evidence from Canada.
The Canadian Journal of Economics 35:2, 307–330
2
PRIMO BRAGA, C.A. AND C. FINK. 1997. “The Economic Justification for the Grant of Intellectual Property
Rights: Patterns of Convergence and Conflict.” In F.M. Abbott and D.J. Gerber, eds., Public Policy and Global
Technological Integration, pp. 99-121. The Netherlands: Kluwer Academic Publishers. ———. 1999. “International
Transaction in Intellectual Property and Developing Countries.” Forthcoming in the Journal of International
Technology Management’s special edition on Intellectual Property Rights and Economic Development
3
Romer, P. (1986) Increasing Returns and Long Run Growth. Journal of Political Economy. 94, 1002–1037
4
YUSUF, A.A. AND A.M VON HASE. 1992. “Intellectual Property Protection and International Trade: Exhaustion
of Rights Revisited.” World Competition: Law and Economics Review 16(1):115-131.
5
SHERWOOD, R.M. 1997. “Intellectual Property Systems and Investment Stimulation: The Rating Systems in
Eighteen Developing Countries.” IDEA: The Journal of Law and Technology 37(2):261-370.
35
Different types of IPRs operate in a different manner6. Like patent provide protection from
unauthorized making, selling and importing products and technology that is recognized to be
novel and industrial utility7. In most countries patent applications are made public after a certain
time period. There are several aspect of patent scope after effective protection8.
Trademark is used to give protection to various names and symbols used in products and
services. It is used to help the customers identify products with much confusion, as the main
objective of any brand to get investments as it talks about the quality of the products and
service9. Economists believe that there is danger to the economy due to market domination in
competitive economies which play as a market a barrier for new entries10.
Copyright is used to provide protection to literary work, artistic work etc as these rights provides
an exclusive right to the owner for a certain period of time and they can choose to sell it11.
However the short coming is that the doctrine of ‘fair- use’ provides only a limited number of
copies to be made for research and education12.
There are still many technologies which do not fit into the traditional categories, as some
elements a technology may be applicable for patent in one country but not in another13. This is
particularly in developing counties especially for bio-technologies and plant breeder’s right. Due
to unwarranted protection these inventions cannot be considered as an innovative step, this is the
same case in seed varieties14.
There is a fundamental issue in these objectives. Due to the over protectiveness of these IPRS it
would limit various different social gains, a weak system would reduce innovations and effect
the economy and not provide enough returns to the market15.
6
You and Katayama (2005) Intellectual Property Rights Protection and Imitation: An Empirical Examination of
Japanese F.D.I. in China. Pacific Economic Review 10:4, 591–604.
7
PRIMO BRAGA, C.A. 1990. “The Developing Country Case For and Against Intellectual Property Protection.” In
W.E. Siebeck, ed., Strengthening Protection of Intellectual Property in Developing Countries: A Survey of the
Literature. World Bank Discussion Paper No. 112, pp. 69-87. Washington, D.C.: The World Bank. ———. 1996.
“Trade-Related Intellectual Property Issues: The Uruguay Round Agreement and its Economic Implications.” In W.
Martin and L.A. Winters, eds., The Uruguay Round and the Developing Economies. World Bank Discussion Paper
No. 307, pp. 381-411. Washington, D.C.: The World Bank.
8
Schiffel, D. and C Kitti (1978) Rates of Invention: International Patent Comparisons. Research Policy 7: 4
(October), 324–340.
9
WORLD BANK. 1998. World Development Report. New York, N.Y.: Oxford University Press.
10
Zipfel, Jacob (2004) Determinants of Economic Growth. Florida State University (Social Sciences-Political
Science).
11
SIEBECK, W.E., ed. 1990. “Strengthening Protection of Intellectual Property in Developing Countries: A Survey
of the Literature.” World Bank Discussion Paper No. 112. Washington, D.C.: The World Bank
12
YUSUF, A.A. AND A.M VON HASE. 1992. “Intellectual Property Protection and International Trade:
Exhaustion of Rights Revisited.” World Competition: Law and Economics Review 16(1):115-131.
13
PRIMO BRAGA, C.A. AND A. YEATS. 1992. “How Monoliteral Trading Arrangements May Affect the Post-
Uruguay Round World.” Policy Research Working Paper, WPS 974. Washington, D.C.: International Economics
Department, The World Bank
14
UNESCO. 1996. World Science Report. Paris: UNESCO. UNITED NATIONS. 1997. World Investment Report.
New York
15
WATAL, J. 1997a. “Compensation to Developing Countries for the Use of Biological Resources and Traditional
Knowledge.” Paper commissioned by the World Development Report. 1997b. “Intellectual Property Rights and
Standards.” Paper commissioned by the World Development Report.
36
4. Protection of IPR in Different Countries
IPR is very important in every country16. However, they differ from country to country in spite
of being members of TRIPS. Example: United States is said to have the strongest IPR protection
in the world. It has responsive institutional system for administration and also ensure IPR
effeteness of enforcement of the same and also provides equal treatment of national and
international by following various IPR conventions17. The IPR protection of many developed
countries come very close to that of the United states, although they may be different in the fields
of governance and legal coverage18. However, in developing countries the protections is very
low as not all developing counties protect all types of intellectual properties with minimum level
of protection in administration and enforcement19. There is also difference in the research and
development activity between the developed and developing countries, due to the privatization of
the same increases the IPR protection. The IPR also influences the production and consumption
in domestic and foreign residents20. For developing countries, the agricultural output is much
higher, thus one can say that IPR protection on agriculture is higher in developing countries than
developed countries21.
16
Koike, M., Keynote Speech at the Fourth Global Congress Combating Counterfeiting and Piracy, p. 1 (3 Feb.
2008), http://www. ipr.go.jp/e-material/keynote_speech_20080203dubai.pdf.
17
“While some consumers are looking for what they believe to be bargains, knowingly buying counterfeit and
pirated products, others may purchase counterfeit and pirated products believing they have purchased genuine
articles. In both cases, products are often sub-standard and carry health and safety risks that range from mild to life
threatening. Sectors where health and safety effects tend to occur include: car parts (brake pads, hydraulic hoses,
engine and chassis parts, suspension and steering components, airbags, spark plugs, filters), electrical components
(circuit breakers, fuses, switches, batteries), food and drink (tea, rice, vodka, raw spirits, baby formula), chemicals,
toiletry, household products and tobacco products.”
18
OECD, Magnitude of Counterfeiting and Piracy of Tangible Products: An Update (Nov. 2009),
http://www.oecd.org/document/2 3/0,3343, en_2649_34173_44088983_1_1_1_1, 00.html. 120 Frontier Economics,
The Impact of Counterfeiting on Governments and Consumers (May 2009), http://www.iccwbo.org/
bascap/index.html?id=30506
19
European Commission, Green Paper on Copyright and Related Rights in the Information Society, COM (95) 382
final, p. 3 (19 Jul. 1995), http://ec.europa.eu/internal_market/copyright/docs/docs/ com-95-382_en.pdf; see also
Guellec, D., Madiès, T., and Prager, J.-C., Les marchés de brevets dans l’économie de la connaissance, Conseil
d’AnalyseÉconomique (28 Jul. 2010) (Patent markets are likely to have increasing importance in the allocation of
technology. Affirmative participation in these markets will be a prerequisite for access to knowledge and markets
globally.), http://www.cae.gouv.fr/ spip.php? breve19.
20
Jervelund, C., Jespersen, S.T. and Winiarczyk, M., Copenhagen Economics, Clean Technology and European
Jobs, pp. 1, 8 (Oct. 2009) (citing IEA estimates), http://www.thecied.org/
NRrdonlyresesyxt37gmfw4siedbh6tjtaxai6gy4bzpzrtpv5g5bwq2xhsye6k6h7da7yz2jkz46rhotgjilyvo7oikkpttsge42e/
CleanTechandEuroJobsFullReportFINAL.pdf.
21
WIPO, Global Financial Crisis Hits International Trademark Filings in 2009 (18 Mar. 2010) (describing profile of
goods and services for which trademarks were registered in 2009), http://www.wipo.int/
pressroom/en/articles/2010/article_0006.html.
37
The privatization of agricultural research has increased the IPR, with the increasing development
in seed and farming technology, the same is stated in section 5 of the as it has become complex
in developed countries22.
When it comes to service the copyright protection affects the industrial sector and software,
publication and entertainment. This contributes to the GDP growth of the developed countries
and on the other hand developing countries the service share is smaller and it’s limited only to
artistic and literary property23.
6. Intellectual Property Rights and Economic Development

The IPRS plays a big role in the economic goals for any IPR Protection24. The aim is to promote
investments in creation and business creation by establishing exclusive rights to use and sell new
technologies, service, goods etc. When talking from the economics point of view a weak IPRS
creates a negative externality. The problem fails in research and development and risks
information from private market25.
Secondly, it’s to promote new knowledge and replace it with different inventions and ideas.
Since information is public it is non-rival and developers find it difficult to exclude others from
using it26. It is socially and economically efficient to provide product to new products, software,
22
See, e.g., European Commission, Conference on Counterfeiting and Piracy: Frequently Asked Questions (FAQs)
(13 May 2008), http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/0
8/299&format=HTML&aged=0&language=EN&guiLanguage=en : “While some consumers are looking for what
they believe to be bargains, knowingly buying counterfeit and pirated products, others may purchase counterfeit and
pirated products believing they have purchased genuine articles. In both cases, products are often sub-standard and
carry health and safety risks that range from mild to life threatening. Sectors where health and safety effects tend to
occur include: car parts (brake pads, hydraulic hoses, engine and chassis parts, suspension and steering components,
airbags, spark plugs, filters), electrical components (circuit breakers, fuses, switches, batteries), food and drink (tea,
rice, vodka, raw spirits, baby formula), chemicals, toiletry, household products and tobacco products.”
23
3 Resurreccion, L., Tech-Transfer law seen to boost R&D, economy, Business Mirror (24 Apr. 2010),
http://www.bic.searca.org/ news/2010/apr/phi/24.html; dela Pena, T., Undersecretary for S&T Services, Department
of Science and Technology, Republic of the Philippines, The Technology Transfer Act of the Philippines (2009),
http://www.healthresearch.ph/index.php?option=com_phocadownl oad&view=category&download=62technology-
transfer-act-of-thephilippines&id=14:3rd-pnhrs.
24
OECD, Turning Science into Business: Patenting and Licensing at Public Research Organizations, p. 11 (2003),
http://www. oecdbookshop.org/oecd/display.asp?lang=EN&sf1=identifiers& st1=922003021p1. Countries that have
adopted such legislation include Canada (1985), Japan (1998), Great Britain (1998), Germany (1998, 2001), France
(1999), Austria (2002), Italy (2001), Belgium (1999), Spain (1986), Denmark (2000), Switzerland (2002),
Netherlands (1998), and Korea (1998, 2000 and 2001). Davison, H., Public-Private Partnerships: The Role of IPRs,
Stockholm Network, http://www.stockholm-network.org/downloads/events/ HelenDavison.pdf.
25
Schwiebacher, F. and Müller, E., How Companies Use Different Forms of IPR Protection: Are Patents and
Trademarks Complements or Substitutes? DRUID-DIME Academy Winter 2010 PhD Conference (Nov. 2009),
http://www2.druid.dk/conferences/viewpaper. php?id=500648&cf=44.
26
0 Sandro Mendonça, Tiago Santos Pereira and Manuel Mira Godinho, Trademarks as an Indicator of Innovation
and Industrial Change, DRUID Summer Conference 2004 on Industrial Dynamics, Innovation And Development
(May 2004), http://www.druid.dk/ uploads/tx_picturedb/ds2004-1406.pdf; Smith, P. and Amos, J., Brands,
Innovation and Growth: Evidence on the contribution from branded consumer businesses to economic growth (Apr.
2004), http://www.aim.be/Documents/Insight%20&%20innovation/growth/
PIMS_brands_innovation&%20growth_2004.pdf; Clayton, T. and Turner, G., Brands, Innovation and Growth: The
Role of Brands in Innovation and Growth for Consumer Businesses, in Tid, J. (ed.), From Knowledge Management
to Strategic Competence: Measuring Technological, Market and organizational Innovation (2006).
38
technologies when they get developed. Having an overly protective IPRS could limit the social
gains from invention by reducing the incentives on the other hand having an overly weak will
fail to provide adequate returns27.
6.1 Positive Impact of Intellectual Property Rights on Economic Development
Many economists have recognized several channels through which the Intellectual property
rights have a positive impact on the overall growth and development of the economy 28. They are
independent and dependent on each other. While IPR plays an important role in encouraging new
innovations, product development etc, in developing countries they have IPR system which
favors information through low-cost imitation of other IPR systems all over the world by
copying their product and technology29. Due to this there is insufficient development in the IPR
growth in the domestic front which results in low level economic growth as they aim at local
markets and could try to gain benefit from patents, copyright and trade secret30.
In many cases inventions include only minor changes in the technology which causes effect in
the growth in the knowledge and various other activities which have a cumulative impact in the
same. In order to give a tough competition to the other developing countries they have to come
up with new and latest management, effective laws and organizational skills. However, adapting
requires large amount of capital investment which have high social returns to improve in global
norms, especially where there is unfair competition and due to trademark infringement. IPR
would help entrepreneurs with more creativity and risk taking31. Example, in Brazil helps
domestic producers to gain significant share by encouraging foreign technologies to local
market. The Japanese patent system effected technical progress, measured by increase in total
factor productivity32. The mechanism for promoting these processes include the creator to
disclose and also accept any opposition if any on the patent application. This process seems to
also encourage the creators in a large number for their invention33.
27
8 Bayh, B. (Sen.), Allen, J.P. and Bremer, H.W., Universities, Inventors, and the Bayh-Dole Act, Life Sciences
Law & Industry Report, 24:3 (18 Dec. 2009) (“The Bayh-Dole Act unleashed the previously untapped potential of
university inventions, allowing them to be turned from disclosures in scientific papers into products benefiting the
taxpaying public.”).
28
Greenhalgh, C. and Rogers, M., Trade Marks and Performance in UK Firms: Evidence of Schumpeterian
Competition Through Innovation, pp. 24-25 (Mar. 2007), http://www.economics.ox.ac.uk/
Research/wp/pdf/paper300.pdf.
29
Greenhalgh, C. and Rogers, M., The Value of Innovation: The Interaction of Competition, R&D and IP, Research
Policy 35:4, 562- 580, p. 577 (2006), http://www.sciencedirect.com/science/article/ B6V77-4JMKMP7-
2/2/ca89c15d79ed303ce35756bdadc2e436.
30
9 Association of University Technology Managers, The unsung hero in job creation: New survey reveals
universities’ impact on the U.S. economy (2009) http://www.autm.
net/AM/Template.cfm?Section=Licensing_Surveys_
AUTM&CONTENTID=4513&TEMPLATE=/CM/ContentDisplay.cfm.
31
Interbrand, Best Global Brands (2010), http://www.interbrand.com/ en/best-global-brands/Best-Global-Brands-
2010.aspx.
32
Interbrand, Methodology, http://www.interbrand.com/en/bestglobal-brands/best-global-brands-
methodology/Overview.aspx; see also Granstrand (1999), supra note 45, pp. 8-9.
33
Magazzini, L., Pammolli, F., Riccaboni, M. and Rossi, M.A., Patent disclosure and R&D competition in
pharmaceuticals, Economics of Innovation and New Technology, 18:5, 467-486, p. 482 (2009),
http://www.informaworld.com/smpp/content~db=all?content=10.1 080/10438590802547183.
39
Recent studies have come up with product development and entry of new creators and firms for
trademark protection as stated in a survey in Lebanon has provided evidence as they have
extensive and weak intellectual property34. This problem was faced more in the food producers’
sector this effected the food production sector in Middle East and Lebanon due large number of
trademark infringement thus they shifted to domestic enterprises35.
Similar problem exists in China, it suggested that trademark infringement affected the Chinese
enterprises, problems like consumer goods, soft drinks, processed food etc. the companies who
got their trademark also gained many counterfeit products36. According to various survey there
are different effect on entries development and prevent interregional marketing as a result there
were less economic growth as there was trademark infringement on products which have low
capital requirement and high labor intensity as these were areas in which China had strong
advantage in market. There is also a great number of growths in the software area in China which
grow rapidly for business37.
IPR also stimulate acquisition of new technology and information. Enterprise and creators apply
for patent, in the USA 10-12 months’ time period takes for the application process. With
certainty it would induce more trade, license and product in the growing economy38.
Comparing the same with developing countries they hope to attract stronger IPR39. There are
about three channels through which technology is transferred all around the world (developing
countries)40.It is recognized that by many economists that goods, products and technology are
34
Id., p. 103. See also Maskus, K., Will Stronger Copyright Protection Encourage Development of Copyright
Sectors in Indonesia? in Krumm &Kharas (2004), supra note 57, pp. 149-154 (noting that impact was heaviest on
local music firms). 60 WIPO, About Patents: Frequently Asked Questions, http://www.
wipo.int/patentscope/en/patents_faq.html#patent_role.
35
6 Jensen, P. and Webster, E., Firm Size and the Use of Intellectual Property Rights, Economic Record, 82:256,
44-55, p. 46 (Mar. 2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=889138.
36
Luthria, M. and Maskus, K., Protecting Industrial Inventions, Authors’ Rights, and Traditional Knowledge:
Relevance, Lessons, and Unresolved Issues, in Krumm, K. and Kharas, H., East Asia Integrates: A Trade Policy
Agenda for Shared Growth, p. 103 (2004), http:// www-
wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2004
/03/04/000090341_20040304142642/Rendered/PDF/280410PAPER0 East0Asia0Integrates.pdf
37
This discussion is summarized from OECD, Enhancing the Competitiveness of SMEs through Innovation, pp. 6-8
(2000), http:// www.oecd.org/dataoecd/20/1/2010176.pdf.
38
5 WIPO, Trademark Applications by Origin and Office (February 2010),
http://www.wipo.int/export/sites/www/ipstats/en/statistics/ marks/xls/52_tm_appln_by_office_by_origin.xls.
39
5 Id., Table 4. When weighted by each sector’s employment, the average number of all IP registrations per 1,000
employees for SMEs versus large companies, respectively, was .288 versus .242 for patents, 2.743 versus 1.835 for
trademarks, and .339 versus.162 for design rights
40
Ryan, M., Intellectual Property, Trade and Foreign Direct Investment, p. 3 (May 2004), WIPO Arab Regional
Meeting on Intellectual Property as a Power Tool for Economic Growth, http://
www.wipo.int/edocs/mdocs/arab/en/wipo_reg_ip_amm_04/ wipo_reg_ip_amm_04_7.pdf; citing OECD,
Technology Licensing: Survey Results (1987); United Nations Commission on Transnational Corporations
(UNCTNC), New Issues in the Uruguay Round of Multilateral Trade Negotiations, E.90.II.A.15 (1989); UNCTNC,
The Determinants of Foreign Direct Investment: A Survey of Evidence, E.92.II.A.2 (1990); Mansfield, E.,
Intellectual Property Protection, Direct Investment, and Technology Transfer: Germany, Japan, and the United
States, International Finance Corporation/World Bank Group Discussion Paper #27 (1995); Lee, J.-Y. and
Mansfield, E., Intellectual Property Policy and U.S. Foreign Direct Investment, Review of Economics and Statistics,
78:181-186 (1996); Maskus, Keith, Intellectual Property Rights in the Global Economy, pp. 197, 232 (2000).
40
imported which would directly reduce the production cost41. Example, there is one percent
increase in import of products, technology and goods like Coe, Helpmanetc. so the import price
would be around 0.5%- 1%42. Thus, the volume of impact is important to a developing country
that need a revision in the IPR protection. The impact on the volume of trade depends on the
revision and level of patent protection available in the said country, the target market size and the
level of infringement which adhere to the guidelines of TRIPS43. Countries like USA and
Switzerland are not required revise their IPR protection levels when importing goods, technology
and products from China, Thailand, Indonesia and Mexico for which they need to adopt a much
more IPR protection level44. Example in Mexico, updated their IPR regime in the NAFTA due to
this there was a substantial increase in the manufacturing, import and export of goods, products
and technology in the late 2000s from countries like India, Bangladesh and were also able to
protect their patents from countries like Brazil and Argentina. It has also been shown in various
studies that the stronger the patent protection there is lesser infringement and more increase in
the import by almost 10% in the late 2000s. Seeing this almost 150 US firms applied for patent
in over 20 countries from the FDI in 1990s45. Even various pharmaceutical companies, over 50%
firms applied for IPR protection, especially the Research and development firms 100% of the
companies applied for IPR protection46. In India, chemical industry indicate that they transfer
90% of their surveyed indicate that they could not differentiate between joint and subsidiary
ventures47. Apart from chemical industry there is also transfer of products in the machinery
industry however not in other industries because of weak IPR protection48.
41
7 Rogers, M., Helmers, C. and Greenhalgh, C., An analysis of the characteristics of small and medium enterprises
that use intellectual property, pp. 36-39, Tables 12-13 (Oct. 2007), http://users.ox.ac.
uk/~manc0346/SMEReport1.pdf; see also Rogers, M., Helmers, C. and Greenhalgh, C., A comparison of the use
and value of patents and trademarks in large and small firms (undated), www.oiprc.ox.ac. uk/EJWP0108.ppt
42
5 WIPO, Trademark Applications by Origin and Office (February 2010),
http://www.wipo.int/export/sites/www/ipstats/en/statistics/ marks/xls/52_tm_appln_by_office_by_origin.xls.
43
3 Id., citing Arundel and Kabla (1998). Acs and Audretsch (1988) also found evidence in the US that patents are
higher in industries where the share of innovations held by large firms is higher. However, the US definition of a
small firm (
44
World Intellectual Property Organization (WIPO), Economic Contribution of Copyright Industries,
http://www.wipo.int/ ip-development/en/creative_industry/pdf/eco_table.pdf; Tera Consultants, Building a Digital
Economy: The Importance of Saving Jobs in the EU’s Creative Industries (Mar. 2010), http://
www.teraconsultants.fr/assets/publications/PDF/2010-MarsEtude_Piratage_TERA_full_report-En.pdf; Japan
Copyright Institute, Copyright Research and Information Center (CRIC), Copyright White Paper – A view from the
perspective of copyright industries, JCI Series No. 19, Vol. 3 (Aug. 2009), http://www.cric.or.jp/cric_e/cwp/
cwp.pdf.
45
Dr. Angela Merkel, Policy Statement on the G8 World Economic Summit (24 May 2007),
http://www.bundesregierung.de/Content/ EN/Regierungserklaerung/2007/05/2007-05-24-regierungserkl_C3_
A4rung-merkel,layoutVariant=Druckansicht.html.
46
OECD, The Economic Impact of Counterfeiting and Piracy (2008), p. 134, http://www.oecd.org/document/4/0,3
47
Tregear, A., F. Arfini, G. Belletti and A. Marescotti (2007) ‘Regional Foods and Rural Development: The Role of
Product Qualification’. Journal of Rural Studies 213(1): 12– 22
48
WIPO, Guide on Surveying the Economic Contribution of the Copyright-Based Industries (2003),
http://www.wipo.int/export/sites/ www/ip-development/en/creative_industry/pdf/893.pdf. 5 Raymond, Christopher,
Intellectual Property Institute, The Economic Importance of Patents (1996).
41
Many firm are taking up FDI for licensing in product, goods and technology which has high
licensing costs49. IPRS are upgraded because it makes it easy to discipline the application and
avoid infringement of any patent or trademark50. It also makes the application and enforcement
of contracts easy by and on multinational companies51. Thus if IPRS are strong and upgraded he
licensing cost will come down making more growth and development in the field of IPR.
Example in the US between 1980s and 1990s they affiliated themselves with many
manufacturing companies in developed and developing countries52. Due to this the asset equation
had a negative effect on the patent, trademark rights which brought a realization that there is a
need for stronger IPR protection in order to have positive and efficient impact on the nations53.
Thus in order to analysis the above statements made, first countries with weak IPR would not
cause issues for countries to experiment or deal with new technology, knowledge and stop the
growth in the given field54. Secondly, countries would obtain less economic growth. Thirdly,
countries will have outdated goods, products and technology55. Finally, they will have limited
initiative, less innovation and less technological transfers from other counties56. Countries like
China also support this, as many countries showed their reluctance in the research and
development facilities provided by China stating that their technology was five years old
compared to other countries. Due to this they do not like to give full processing facilities to them
to avoid the complete revel of technology57. Widespread distribution of goods, technology and
products which are copied or counterfeit effect the image and also there is no quality assurance,
example food products, technological products, cosmetics, medicines etc cause various hazards
for the suppliers and consumers58.
49
Branstetter, L., Fisman, R., Foley, C.F., Saggi, K., Intellectual Property Rights, Imitation, and Foreign Direct
Investment: Theory and Evidence, NBER Working Paper 13033, p. 1 (Apr. 2007), http://www.
nber.org/papers/w13033.
50
Park, W. and Lippoldt, D., Technology Transfer and the Economic Implications of the Strengthening of
Intellectual Property Rights in Developing Countries, OECD Trade Policy Working Paper No. 62 (25 Jan. 2008),
http://www.oecd.org/ officialdocuments/displaydocumentpdf/?cote=tad/tc/wp (2007)19/ final&doclanguage=en.
51
Prime Minister Dr. Manmohan Singh, Speech to the India Caucus, Washington, DC (19 Jul. 2005),
http://www.indianembassy.org/press_ release/2005/July/25.htm, reprinted at http://www.outlookindia.
com/printarticle.aspx?227989.
52
Vandenbussche, J., P. Aghion and C. Meghir (2006) ‘Growth, Distance to Frontier and Composition of Human
Capital’. Journal of Economic Growth 11(2): 97–127.
53
Cullen, S.E., Alternative Energy Powers Up: Staking Out the Patent Landscape for Energy from Wind, Sun and
Waves (2009), http://ip.thomsonreuters.com/media/pdfs/altenergy.pdf; see also Jervelund et al. (2009), supra note
114, p. 17.
54
Tregear, A. (2002) Work Programme 4 (Link between Origin Labelled Products and Consumers and Citizens):
Final Report. Dolphins – Concerted Action, Contract QLK5-2000-0593. Brussels: European Commission.
55
Velho, L. (2004) ‘Research Capacity Building for Development: From Old to New Assumptions’. Science
Technology and Society 9(2): 171–207.
56
Thiedig, F. and B. Sylvander (2000) ‘Welcome to the Club? An Economical Approach to Geographical Indications
in the European Union’. Agrarwirtschaft 49(12): 428–37.
57
Watal, J. (2000) ‘Pharmaceutical Patents, Prices and Welfare Losses: Policy Options for India Under the WTO
TRIPS Agreement’. World Economy 23(5): 733–52.
58
WIPO, Guide on Surveying the Economic Contribution of the Copyright-Based Industries (2003),
http://www.wipo.int/export/sites/ www/ip-development/en/creative_industry/pdf/893.pdf. 5 Raymond, Christopher,
Intellectual Property Institute, The Economic Importance of Patents (1996).
42
With the new regimes introduced in patent, trademark by TRIPS would change the situation.
With the increase in research and development to help in various sectors of medicines,
technology in developing countries specifically would be helpful59. However, there is a large
amount of uncertainty regarding the outcome and its practical significance. As even with strong
IPR protection the ability to improve and encourage people to buy goods, products or technology
may not rise much for a certain or long period of time60.
6.2 NegativeImpact of Intellectual Property Rights on Economic Development

IPR has many potentials for the growth and development in many circumstances 61. However, it
may also cause many economic issues. In developing economies, as they would experience
overall net welfare loss because of the cause of protection causes as discussed. Thus, it is
difficult to organize interest in developing countries. In most developing countries there is a
large amount of labor employment in unauthorized products and goods. As they try to upgrade
their laws and various activities as they find an alternative employment62. Example in Lebanese
in 1998 the employment and price impact the IPR in their industry. The copyright software
reduces the piracy by almost 40% which lowers the infringement the rate among the
employment. Many evidences via interview state that many skilled and unskilled workers find
employment in non-infringement companies. There was a rise in the software price by 19% than
the earlier price which was 16%. This was only in Lebanon, they would have a strong copyright
in experience63.
There is loss in the printing, publishing music, books, video etc and the infringement reduced.
There was increase in the books price by almost 8% and increase in video price by 12%64.
59
Schwiebacher, F. and Müller, E., How Companies Use Different Forms of IPR Protection: Are Patents and
Trademarks Complements or Substitutes? DRUID-DIME Academy Winter 2010 PhD Conference (Nov. 2009),
http://www2.druid.dk/conferences/viewpaper. php?id=500648&cf=44.
60
WIPO, Global Financial Crisis Hits International Trademark Filings in 2009 (18 Mar. 2010) (describing profile of
goods and services for which trademarks were registered in 2009), http://www.wipo.int/
pressroom/en/articles/2010/article_0006.html.
61
8 Markenverband, StatistischesBundesamt (2005), cited in Perry, J., McKinsey & Co., The Significance of Brands
and the Branded Goods Industry: An Economic Perspective (2007), http://www.aim.
be/Documents/Insight%20&%20innovation/growth/mckinsey_ germany_2007.pdf. These industries were also found
to represent 1.5 million jobs and €46 billion (5%) of direct and indirect tax revenues in Germany. See also ESADE,
The Economic and Social Impact of Manufacturers’ Brands in Mass Consumption Markets (Apr. 2010),
http://www.aim.be/Documents/Insight%20&%20 innovation/growth/spain_ESADE_study_2010.pdf.
62
63
64
0 Sandro Mendonça, Tiago Santos Pereira and Manuel Mira Godinho, Trademarks as an Indicator of Innovation
and Industrial Change, DRUID Summer Conference 2004 on Industrial Dynamics, Innovation And Development
(May 2004), http://www.druid.dk/ uploads/tx_picturedb/ds2004-1406.pdf; Smith, P. and Amos, J., Brands,
Innovation and Growth: Evidence on the contribution from branded consumer businesses to economic growth (Apr.
2004), http://www.aim.be/Documents/Insight%20&%20innovation/growth/
PIMS_brands_innovation&%20growth_2004.pdf; Clayton, T. and Turner, G., Brands, Innovation and Growth: The
Role of Brands in Innovation and Growth for Consumer Businesses, in Tid, J. (ed.), From Knowledge Management
to Strategic Competence: Measuring Technological, Market and organizational Innovation (2006)
43
However, in food products, pharmaceuticals, technology and cosmetics which are subject to
patent and trademark65. There was increase in the patent fee price by 50% which was 30% in the
beginning. This impacts the infringement which raises the cost by many companies. There was
fall in employment rate by almost 15% in large companies66.
Another concern is the potential of IPR to support the monopoly67. Products, goods, technology,
etc. companies might lower the sales to reduce the monopoly price in the market, there is an
evidence that patent generates higher price to protect drugs, goods and other pharmaceutical
products68. However, the increase in the price will depend on many factors like the type of
pharmaceutical product, its production, the patent obtained. Many evidences in India show that
there is large amount of infringement of the said products69. When there is an introduction to the
patent in the market there is an increase in the price of that product causing an imbalance in the
economy. Example in counties like Beijing, Shanghai etc there was an increase in the price of
the said product by almost 5% between the years 1990-1995. This economic impact was also
tested and proved in counties like Chile, Argentina etc. however the observation was made only
on the basis of quality and not quantity70.
There are no studies on software will vary between counties71. It’s necessary that the price is
higher when compared between retail and copied programs. Example, in Hong Kong between
1995-2000 they purchased windows 97 was bought by them for $7 and was copied all around72.
65
Yaqub, O. (2009b) ‘Knowledge Accumulation and Vaccine Innovation: Lessons from Polio and HIV/AIDS’,
DPhil thesis, University of Sussex.
66
9 Alliance Against IP Theft, Economic Contribution of Intellectual Property (2009),
http://www.allianceagainstiptheft.co.uk/downloads/ campaign-pdfs/economic%20contribution.pdf. An estimated 1
million people are employed in the UK in creating and building brands delivering an estimated £15 billion in
investment in the UK economy. UK Intellectual Property Office, Branding in a Modern Economy, p. 6 (2009),
http://www.ipo.gov.uk/branding-confreport. pdf.
67
Rogers, M., Helmers, C. and Greenhalgh, C., An analysis of the characteristics of small and medium enterprises
that use intellectual property, pp. 36-39, Tables 12-13 (Oct. 2007), http://users.ox.ac.
uk/~manc0346/SMEReport1.pdf; see also Rogers, M., Helmers, C. and Greenhalgh, C., A comparison of the use
and value of patents and trademarks in large and small firms (undated), www.oiprc.ox.ac. uk/EJWP0108.ppt
68
While some consumers are looking for what they believe to be bargains, knowingly buying counterfeit and pirated
products, others may purchase counterfeit and pirated products believing they have purchased genuine articles. In
both cases, products are often sub-standard and carry health and safety risks that range from mild to life threatening.
Sectors where health and safety effects tend to occur include: car parts (brake pads, hydraulic hoses, engine and
chassis parts, suspension and steering components, airbags, spark plugs, filters), electrical components (circuit
breakers, fuses, switches, batteries), food and drink (tea, rice, vodka, raw spirits, baby formula), chemicals, toiletry,
household products and tobacco products.”
69
See, e.g., IDC/BSA, The Economic Benefits of Reducing PC Software Piracy (Sept. 2010) (estimate that a 10-
percentage point reduction in business software piracy would generate $142 billion in economic growth, 500,000
jobs, and $43 billion in additional taxes world-wide over 4 years), www.bsa.org/idcstudy.
70
Id., Table 4. When weighted by each sector’s employment, the average number of all IP registrations per 1,000
employees for SMEs versus large companies, respectively, was .288 versus .242 for patents, 2.743 versus 1.835 for
trademarks, and .339 versus.162 for design rights.
71
Yaqub, O. (2009a) ‘Knowledge Accumulation and the Development of Poliomyeltis Vaccines’. STEPS Working
Paper 20. Brighton: STEPS Centre.
72
WIPO, World Intellectual Property Indicators, Table ST.1 (2009),
http://www.wipo.int/export/sites/www/ipstats/en/statistics/patents/ pdf/wipo_pub_941.pdf; see also WIPO, Patent
Applications by Patent Office and Country of Origin (1995-2008), http://www.wipo.int/
export/sites/www/ipstats/en/statistics/patents/xls/wipo_pat_appl_ by_office_origin_table.xls.
44
Another concern about this is that the monopoly price which supports the IPR could be valid73.
IPR introduced many competitive markets. Due to infringement, there would be diminished or
less access to technological information. Patents on pharmaceutical goods and products raise the
costs and pressure on the developing countries. Whereas trade secrets are concerned it makes it
more difficult to get latest technology74.
The cost explains many ways to strengthen the economy. First, the economy could be balanced
by transfer through trade and licensing. Many markets, companies take advantage of the products
and goods75. Second, IPR would help developing counties to enter developed countries. Third,
cost imitation need not be damaging into many competitive economies for various technology76.
The worry for a developing country is the higher cost in intellectual property rights which makes
the overall profit very low77. In 2000s there was an impact of stronger patent rights according to
TRIPS. Firm’s profits depend on the degree of IPR protection in that country. In the pre-TRIPS
the level of changes induced were not accounted78. Also, the stocks which depended on the
patent were also affected. In 1990s the national GDP was also affected in the exchange rate. In
the United States the GDP growth by almost 9 million dollars per year79. However, as TRIPS is
concerned, the rules it is up to the countries to apply according to their law system however
United States did not make any changes. In most countries experience net outflow of patent
because of significant changes and technological imports80.
73
Yang, C.-H. and Y.-J. Huang (2009) ‘Do Intellectual Property Rights Matter to Taiwan’s exports? A Dynamic
Panel Approach’. Pacific Economic Review 14(4): 555–78.
74
Strong domestic IPRs may spur domestic innovative activity, and thus affect ... patented (from an ethical point of
view—these ethical issues are ... www.ww.uni-magdeburg.de/bwl2/Lehre/WTO/WTO-L6 _2004
75
Wilson, N., A. Fearne and K. van Ittersum (2000) ‘Co-operation and Co-ordination in the Supply Chain: A
Comparison between the Jersey Royal and the Opperdoezer Ronde Potato’. In B. Sylvander, D. Barjolle and F. A.
Versailles (eds) The Socioeconomics of Origin Labelled Products in Agri-food Supply Chains: Spatial, Institutional
and Coordination Aspects, Vol. 2, pp. 95–102. Versailles: INRA-Editions.
76
3 Kamiyama, S., Sheehan, J. and Martinez, C., Valuation and Exploitation of Intellectual Property, OECD STI
Working Paper 2006/5, pp. 20-22 (2006), http://www.oecd.org/ dataoecd/62/52/37031481.pdf; Kortum, S. and
Lerner, J., Does Venture Capital Spur Innovation?, National Bureau of Economic Research, Working Paper 6846
(1998), http://www.nber.org/papers/ w6846
77
Guellec and van Pottelsberghe (2007), supra note 44, pp. 88- 94, citing European Patent Office, Applicant Panel
Survey 2004 (internal report) (2005); Gambardella, A., Assessing the ‘Market for Technology’ in Europe: A Report
to the European Patent Office (2005).
78
Yaqub, O. (2009b) ‘Knowledge Accumulation and Vaccine Innovation: Lessons from Polio and HIV/AIDS’,
DPhil thesis, University of Sussex.
79
Whyte wolf 2010. Is Intellectual Property Itself Unethical? http://www.iacis.org/iis/2007_iis/PDFs/Peslak.pdf
80
4 Haeussler, C., Harhoff, D. and Mueller, E., Centre for European Economic Research, To Be Financed or Not…
- The Role of Patents for Venture Capital Financing (Centre for European Economic Research, Jan. 2009),
http://www.cepr.org/pubs/new-dps/dplist. asp?dpno=7115.asp; citing Baum, J.A. and Silverman, B.S., Picking
winners or building them? Alliance, intellectual, and human capital as selection criteria in venture financing and
performance of biotechnology start-ups, Journal of Business Venturing, 19:411-436 (2004); Mann, R.J. and Sager,
T.W., Patents, venture capital, and software start-ups, Research Policy, 36:193-208 (2007); Hsu, D. and Ziedonis,
R.H, Patents as quality signals for entrepreneurial ventures, Academy of Management Best Paper Proceedings
(2008); Lerner, J., The importance of patent scope: an empirical analysis, RAND Journal of Economics, 25:319-333
(1994
45
Finally, it was noted that administration could be a burden in developing countries’ economies
example in countries like Chile the GDP increased by almost one million. Similarly in
Bangladesh there was increase in the GDP81.
If there is a fixed price country which a developing, small or poor to here will not be enough
significant growth. First, the IPR office may make changes in the application fee82. Second, poor
countries may file petition on various factors like technical and financial help in industrial
country and with the help of WIPO and WTO help in the proper use of the cost83. Third, they
make get cooperation from many international agreements and treaties84.
Conclusion
Finally, one can claim that strengthening the IPR system can help to rise the GDP, more
technological growth, and economic growth of a country85. Studies have shown that economic
growth access would help to strengthen the patent and other intellectual properties. The direct
effect of patent and IPR growth there was an important openness in the trade 86. With strong
patent protection here was overall growth by 1%87. In open economies the experience in
competition, being it even the FDI and requirement for a strong technology for better product
quality. There was no relation between patent strength and growth and development of the
goods, product tec88. It was in 2000s the IPR growth and investment is not fund in direct
correlation between patent strength and growth and there was a strong impact on physical and on
research and development89. Many economic theories have stated that IPR could play both
positive and negative role in the overall growth and development of the economy and many
evidences have depend on many factors as stated to promote IPR90. It may pose problem for
which we can get a solution and many policies which are complementary and might maximize
81
The IP Roadmap published by ICC provides a guide to the roles of business and government in ensuring that IP
protection performs its important function effectively. This Roadmap includes an overview of the policy debate on
IP issues and addresses many of these issues in detail. See International Chamber of Commerce, Current and
emerging intellectual property issues for business: A roadmap for business and policy makers (2010),
http://www.iccwbo. org/uploadedFiles/ICC/policy/intellectual property/pages/IP%20 Roadmap-%202010-
%20FINAL%20Web+cover (5).pdf.
82
World Bank (2008) World Development Indicators. Washington DC: World Bank.
83
World Health Organization (WHO) (2002a) Infectious Diseases Report. Geneva: WHO.
84
Wilson, N., A. Fearne and K. van Ittersum (2000) ‘Co-operation and Co-ordination in the Supply Chain: A
Comparison between the Jersey Royal and the Opperdoezer Ronde Potato’. In B. Sylvander, D. Barjolle and F. A.
Versailles (eds) The Socioeconomics of Origin Labelled Products in Agri-food Supply Chains: Spatial, Institutional
and Coordination Aspects, Vol. 2, pp. 95–102. Versailles: INRA-Editions.
85
nber.org/papers/w13033
86
Scherer, F.M. (1959) Patents and the Corporation. Boston, MA: James Galvin and Associates
87
Wong, E.V. (2002) ‘Inequality and Pharmaceutical Drug Prices: An Empirical Exercise’. University of Colorado
at Boulder Working Papers.
88
WIPO. Intellectual property and bioethics-An overview.
89
Alan RP 2007. information technology intellectual property ethics; issues and analysis. Issue in Information
system, 8(2).
90
Smale, M., M.P. Reynolds, M. Wharburton, B. Skovmand, R. Trethowan, R.P. Singh, I. Ortiz-Monasterio and J.
Crossa (2002) ‘Dimensions of Diversity in Modern Spring Bread Wheat in Developing Countries from 1965’. Crop
Science 42: 1766–79
46
the profit or might affect the losses in the growing competition and these policies would include
human capital, skills and flexibilities, organization, market and to have a non-discriminatory
effective competition91.
IPR also plays a very important role in becoming a relevant of the policy making in developing
economies for negotiation and private sector research and development example many IPR
policies may affect the lives of millions who are low-income farmers and developing world
influence the pace I biotechnology92.
However, these developments pose threat in many significant ways93. The legal standard of
protection, discuss many other variables that determine the economic growth and development
that factor the judicial system and macroeconomics and micro economics, also to have a pro-
competitive approach toward IPR which regulate and help in the innovation process in many
developing countries94.
There are many ambiguities in IPR protection of how the countries will get effected 95. The IPR
protection will be supported by TRIPS which will redistribute the income between developed
and developing countries96. There will be additional market power that would harm various
information and help in growth and development in various importing countries to get some
improvement. The range of various policies can be divided into in four criteria’s97.
First, IPR growth and development helps to open the economy98. With coming of liberalization,
free entry and exist will help in the removal of monopolies in the market99.
91
Ryan, M., Intellectual Property, Trade and Foreign Direct Investment, p. 3 (May 2004), WIPO Arab Regional
Meeting on Intellectual Property as a Power Tool for Economic Growth, http://
www.wipo.int/edocs/mdocs/arab/en/wipo_reg_ip_amm_04/ wipo_reg_ip_amm_04_7.pdf; citing OECD,
Technology Licensing: Survey Results (1987); United Nations Commission on Transnational Corporations
(UNCTNC), New Issues in the Uruguay Round of Multilateral Trade Negotiations, E.90.II.A.15 (1989); UNCTNC,
The Determinants of Foreign Direct Investment: A Survey of Evidence, E.92.II.A.2 (1990); Mansfield, E.,
Intellectual Property Protection, Direct Investment, and Technology Transfer: Germany, Japan, and the United
States, International Finance Corporation/World Bank Group Discussion Paper #27 (1995); Lee, J.-Y. and
Mansfield, E., Intellectual Property Policy and U.S. Foreign Direct Investment, Review of Economics and Statistics,
78:181-186 (1996); Maskus, Keith, Intellectual Property Rights in the Global Economy, pp. 197, 232 (2000).
92
nber.org/papers/w13033.
93
Cavazos Cepeda, R., Lippoldt, D. and Senft, J., Policy Complements to the Strengthening of IPRs in Developing
Countries, OECD Trade Policy Working Paper No. 104, pp. 21-22 (14 Sept. 2010), http://www.oecd-
ilibrary.org/trade/policy-complements-to-thestrengthening-of-iprs-in-developing-countries_5km7fmwz85d4-en.
94
Ministry of Foreign Affairs, Hu Jintao Delivers an Important Speech at the Welcome Dinner Hosted by the
Sweden-China Trade Council (11 Jun. 2007), http://www.fmprc.gov.cn/eng/wjb/zzjg/xos/ xwlb/t329830.htm.
95
Maskis K 2000. Intellectual property Rights and global economy. Institute for international economic, Washington
DC
96
Park, W. and Lippoldt, D., Technology Transfer and the Economic Implications of the Strengthening of
Intellectual Property Rights in Developing Countries, OECD Trade Policy Working Paper No. 62 (25 Jan. 2008),
http://www.oecd.org/ officialdocuments/displaydocumentpdf/?cote=tad/tc/wp (2007)19/ final&doclanguage=en.
97
Prime Minister Dr. Manmohan Singh, Speech to the India Caucus, Washington, DC (19 Jul. 2005),
http://www.indianembassy.org/press_ release/2005/July/25.htm, reprinted at http://www.outlookindia.
com/printarticle.aspx?227989.
98
Roderick RL 1995. The libertarian case against intellectual Property Rights. Liberal National foundation.
http://www.libertariannation.org/a/f31l1.html
47
Second, having enough supplies of various labor skills to help promote growth in the areas of
technology and innovation100.
Third, it helps in economic growth which helps in innovation in the market area101.
Finally, due to various consumers and customers it helps in protection of abuse of IPR and
various authorities to be able to investigate the various complaints and to give proper
remedies.102 By the regulation of competition in developing countries it helps to strengthen the
IPR and helps to avoid abuse of licensing, monopoly price etc.103
99
100
Cavazos Cepeda, R., Lippoldt, D. and Senft, J., Policy Complements to the Strengthening of IPRs in Developing
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48
MENACE OF WITCH HUNTING IN INDIA: DOES REPARATIVE JUSTICE NEED

SPECIAL LAWS?
Manaswi1
Abstract
The intrinsic human rights hold ergaomnes obligation under international fora. Yet, the
outbreaks of violence against women, in all its manifestations, involve huge aberrations from
these obligations. One such blatant infraction of human rights lies at the roots of witch-hunting.
The age old mythological practice in filters its venom in the mind of the innocent- either by
actual beliefs or via concocted superstition. Whatever be the trajectory of this venom, the
outcome is so ghastly that it trespasses any other form of human rights violation. The modern
day witch hunting sadly triggers this premise with greater intensity. Where on one place
globalization has leveraged spirit of cultural revivalism amongst the indigenous tribes, it
simultaneously witnesses rise in social exclusion of selected few within the same groups, in the
form of witch hunting. In the absence of Central legislation in India, few states have come up
with special laws to curb the menace, while others are demanding such laws. The atrocities
perpetrated in name of witch hunt are not alien forms of violence. So a core question that arises
here – does reparative justice really needs a special law? The author believes that complexities
of modern day witch hunt are problems of implementation, accountability and awareness rather
than the legislation per se. In this backdrop, the paper entails on a critical analysis of the socio-
legal paradigm to ensure contemporary solution to the menace of modern day witch hunt.
Introduction
The temporal trajectory of progression of Homo sapiens to contemporary period has been
complex and hirsute. Most commendable progression with bipedalism was the cranial
development. The burgeoning of brain-induced functionalities propelled communication skills,
advancement in technology and agriculture, formation of beliefs, customs, etc. This set Homo
sapiens apart from other animals. Simultaneously, the undulating trajectory faced hiccups of
diseases, pandemic, natural calamities, all of which leveraged the accentuation of “religion” and
“magic”2 in the life of Homo sapiens. While the former was assigned the task of pleasing the
natural forces, later connotation was aimed at taming these forces via either socially acceptable
(benevolent) sway or via a negative (malevolent) ascendancy.
This cradled the evolution of “white magic” and “black magic” in human life. 3 The protuberant
occult praxis of this black magic was witchcraft. The supernatural belief has time travelled and
wherever the society revered its natural forces, this praxis marked its territory there4. Divination,
sorcery, shamanism, mysticism, or any other techniques to call upon supernatural power for mala
1
Assistant Professor of Law, Chotanagpur Law College. The author can be reached at [email protected]
2
James George Frazer, The Golden Bough: A Study in Magic and Religion, (Oxford University Press, London
1994)
3
Ibid
4
Gary R. Varner, Mysteries of Native American Myth and Religion, (lulu.com, 2007)
49
fide purposes, come within the garb of witch craft5. The people propounding or propagating such
practices got socially boycotted. The general feminine affiliation of witch-craft practices gets
evidenced in various documents6. The supernatural powers of such feminine creatures are
believed to augment the natures’ course. The witch trials to weed out malevolent forces include
socially acceptable methods of branding, raping, burning, killing, or even chopping off body
parts in the name of purification7. Be it the Old, New Testament, Babylonian culture, Hebrew
Society, Jewish community, or the documents, scriptures, paintings emanating from Asian,
African, Middle East nations, and various other parts of globe, all evidence a zealous faith in
dark forces8.
Grabbing the Dynamics of Poverty induced Paradox
Witchcraft for India is not an alien concept. It was a sanctioned practice under Hindu Scriptures,
a profession under Rig Veda and a discipline imparted at various universities.9 However, the
term “witch” was the brain child of scientific studies in ethnology and anthropology, as
undertaken by colonial researchers. The penalization of witch-hunt in 1800s was resisted by a
majority in India, as it hindered the process of “divining the evil”, i.e., punishing the atrocity of
perpetrators. These perpetrators were serving a noble purpose in society’s’ eyes 10. The dynamics
of witch craft and witch hunt in contemporary scenario are riddled with myriad of intricacies.
The poverty induced paradox is the irony of modern Indian democracy. The boon of rapid
economic growth illusions the superstitious curse that poverty shields itself in. Superstition
becomes the riposte to every illness, death, crop failure, natural calamity or any other destruction
that the ignorant mind fails to comprehend easily. This poverty coupled with lack of
transportation facilities, infrastructural inadequacies and illiteracy, builds a vicious nexus when it
works in tandem with the existing beliefs, age old customs and traditions. The material crisis
makes ojhas or the witch-doctors a feasible solution for all problems, be it marital, financial,
emotional or health related.11 Women become easy targets for all the incomprehensible
problems. The witch-craft motivated torture resulted in 2500 deaths between 2000-16 as per the
NCRB reports. In 2016 itself, 134 killing were reported in the name of witch-hunt. The police
data in 2016-19 for the tribal state of Jharkhand, witnessed 123 such killings, most of whom
were women12.
5
Mensah Adinkrah, Witchcraft, Witches and Violence in Ghana, ( Oxford: Berghahn Books, New York, 2017)
6
Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England, (W.W.Norton&
Company, 1998)
7
Ryan Shaffer, Modern Witch-Hunt and Superstitious Murder in India, 38 Centre for Inquiry Affiliate (2014)
8
S. Alam& A.Raj, The Academic Journey of Witchcraft Studies in India, 97 MAN IN INDIA ISSUE 21, 123-138
(2017)
9
RN Saletore, Witchcraft: A Study in Indian Occultism, (Abhinav Publications, Buldana, 2003)
10
Manasi Gopalakrishnana, India’s Witches victims of Superstition and Poverty DW, (July 26, 2019,
https://www.dw.com/en/indias-witches-victims-of-superstition-and-poverty/a-49757742
11
T.S.Sandhu, Black Magic Practices in India DW, (May 23, 2013), https://www.dw.com/en/black-magic-practices-
in-india/a-15969540
12
Supra note 10
50
The non-reporting or under-reporting of such cases, along with reluctance on States’ end to show
this practice as a motive behind murder, result in failure to reveal the true magnitude of this
atrocity. In fact, if the government stats are to be believed witch-hunt kills an Indian woman
every other day. Besides gender inequality, refusal to sexual gratification and having the
audacity to question male dominance in her community, make women easy scapegoats for
victimization. So her branding and torturing could occur for any misfortune befalling her
surroundings be it a child’s death in the neighborhood, or a pandemic outburst, or a natural
calamity or even crop failure. Herein, the socio-demographic profile of the woman attains vital
importance. A widow or a single woman holding property especially land or having land dispute
with her kin, becomes a vulnerable target. Such branding ends in boycotting or social outcast of
the woman, thereby clearing the way to confiscate her property. So, the horizons of
contemporary witch-hunt have trespassed the boundaries of belief in dark magic to enter the
domain of concocted superstition which witnesses such human rights infractions even in the
regions which had zero history of such actual superstitious belief, while this concoction
dramatically surged the instances of witch-hunt in the areas already veiled by blind faith.
Post- colonial era witnessed a wave cultural revivalism amongst the indigenous tribes. In this
globalization era, for instance the Adivasi communities of HO, Santhal, Oran and Munda in the
Jharkhand, the tribal communities in Orissa, the Bodo community in Assam, all chose the path of
preserving their cultural identity while promoting their indigenous character. Yet, the NCRB
reports showed 99 cases of social out casting in 2017, as compared to 83 in 2016 in Orissa,
which placed Orissa at second place after Jharkhand (27 murders in 2016) , to witness such
blatant practices in contemporary scenario13. Sadly, the last decade saw 984 deaths in Adivasi
dominated communities across 19 districts of Jharkhand14. Surprisingly the profile of such
female victims/ survivors is quite similar in majority of the cases. Such attacks are carried out
mostly by relatives on the widows or women living without a male provider. The health and
infrastructural inadequacies, scare transportation facilities, coupled with the power play of
politics in the mineral rich tribal states determine how the evil is divined. The proprietary rights
of women play another crucial role, for instance Santhal is the only Adivasi tribe which
acknowledges the property rights of a widow yet women solely are hunted as witches in this
community15. These women get marginalized in the race of cultural revivalism and become
victims of double patriarchy. GladsonDungdung rightly points that, “Men use the weapon of
witch-hunt to get rid of the women they fear…the greed of property and depriving women of
13
Debabrata Mohapatra, Witch Hunting continues unabated in tribal pockets of Odisha TIMES OF INDIA (Feb. 23,
2018, 3:53 PM) , https://timesofindia.indiatimes.com/city/bhubaneswar/witch-hunting-continues-unabated-in-tribal-
pockets-of-odisha/articleshow/63043374.cms
14
GladsonDungdung, In the name of Witch Hunt ADIVASI HUNKAR , (Aug 3, 2009),
https://adivasihunkar.com/2009/08/03/in-the-name-of-witch-hunting/
15
Ibid
51
traditional property rights is a sidelined fact. Illiteracy, poor educational levels and superstitious
beliefs are reasons fit enough to be icing on the cake…”16
The savagery of witch hunt goes way beyond recorded narratives. Once the witch is identified
via weird rituals, mostly performed by ojha, her subsequent torture and ostracisation involve
barbarous acts of gang-rape, mob lynching, head tonsuring, cutting off of breasts, tongue or other
body parts, insertion of objects in her private parts in name of chaotization, feeding her human
excreta or urine, and other forms of gross human rights atrocities17. The women who survive this
ordeal have their property confiscated and get driven out of the community to lead a life of
lifetime social-stigma. This phenomenon is more spread in Eastern India, especially in tribal
dominated regions; however that does not shy away other states in India from showcasing this
barbarity. As stated above the reported data fails to reveal true magnitude of its dynamics. Thus,
the veil of concocted superstition, strengthened by socio-economic and financial bottlenecks,
cautiously spreads its tentacles to its female victims/ survivors in a way that the community
praises and celebrates the worst form of bestiality on mankind.
Legal Paradigm of Safeguards:
As stated earlier, the wheels of globalization work in tandem with cultural revivalism. The
phoenix of cultural traditions has consciously moved from a gypsy livelihood to politically
defining the boundaries of indigenous life. The power politics entails a purposive eradication of
“weaker strata”. Mitch Horowitz rightly asserted that, “Globalization means that paranoia over
black magic and spirit possession are no longer confined to developing nation”18. While witch
hunt across the globe is beyond the scope of present research, recent past has witnessed sporadic
attacks in Africa, Latin America, and immigrant communities of developed nations. Child abuse,
live burning of the victim, stoning to death in the garb of witch hunt are becoming rampant
tentacles of global witch-hunt persecutions19. The human rights infraction of ergaomnes
obligations under International law has been on surge in recent past, where “healers” charge
exorbitant fees for exorcism. The witch-craft goes beyond the horizons of sadistic vigilantism to
venal motives, where vulnerable women are banished or murdered and their properties
confiscated. The fatalistic assumptions on repetition of ancient aggression associated to
traditional witch practices, in the modern period, coupled with indifference of policies about the
magnitude of violence under this umbrella hunt, is becoming a cause of international concern.
The international fora do not have dearth of treaties dealing with gender-centric violence issues.
The UDHR, 1948; ICCPR, 1979; CEDAW, 1993; CAT, 1987; all have promotion of equality
16
Ibid
17
Terrence McCoy, Thousannds of women accused of sorcery, tortured and executed in Indian witch hunt THE
WASHINGTON POST, ( July 21, 2014, 02:20 P.M), https://www.washingtonpost.com/news/morning-
mix/wp/2014/07/21/thousands-of-women-accused-of-sorcery-tortured-and-executed-in-indian-witch-hunts/
18
Mitch Horowitz, The Persection of Witches, 21st – Century Style NEW YORK TIMES (July 4, 2014),
https://www.nytimes.com/2014/07/05/opinion/the-persecution-of-witches-21st-century-style.html
19
Ibid
52
and prevention of any degrading treatment against either sex as their central theme, with balance
more towards protecting the weaker sex, i.e., women. The Constitutional guarantees of life and
personal liberty20; and equality before law21 also vehemently vocalize this protection zeal. Also,
a “self-evident directive”22 to accord respect to international law and obligations23 and to
incorporate the same within municipal forum24, constitute a part of the international mandate
under the constitution. The general consensus of nations to assign certain principles as part of
International law25, obligate the legislature to strike a harmonious construction of the domestic
laws with international law26 and simultaneously these principles attain relevance on questions of
international law before the judiciary. In crux, the rule of law of a nation ascribes to the
“…principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated…which are
consistent with international human rights norms and standards.”27 Thus, the human rights
obligation which has transitioned to jus cogens norms, divest itself from all sorts of violence and
demand domestic legislations to ensure the same.
In India, the facets of victimization propagated under witch-hunt indirectly come within the radar
of other laws, for instance, the IPC, 1960; CrPC, 1973; Legal Services Authorities Act, 1987;
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; The Protection
of Human Rights Act, 1993; and The Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1989.28 Specifically, the violence of murder29 or its attempt30; hurt31;
rape32; “outraging a women’s modesty”33; kidnapping and abduction34; pin down various
aberrations of witch-hunt indirectly, by punishing the perpetrator from simple to rigorous
imprisonment, including life imprisonment or death punishment, in extreme scenarios.
A bill especially focused on preventing this evil was introduced in the Lok Sabha in 2016 35 by
Shri Raghav Lakhanpal with the objective “to provide for more effective measures to prevent
and protect women from ‘witch-hunt’ practices to eliminate their torture, oppression,
humiliation, and killing by providing punishment for such offences, relief and rehabilitation of
20
The Constitution of India, 1950, art. 21
21
Ibid at art. 14
22
P.Chandrashekhara Rao, The Indian Constitution and International Law, (Springer, 1995)
23
Supra note 21, art.51
24
Ibid at Art. 253
25
Gramophone Company of India Ltd v Birendra Bahadur Pandey, 1984 SCR (2) 664
26
Kesavananda Bharti v State of Kerela, AIR 1973 SC 1461
27
Secretary General, The rule of Law and transnational justice in conflict and post conflict societies UNSC, (Aug.
23, 2004), https://www.un.org/ruleoflaw/files/2004%20report.pdf
28
SashipravaBindhani, Witch Hunting and Rule of Law, 75 ODISHA REVIEW 5, 46-52 (2018)
29
The Indian Penal Code, 1960, S.302
30
Ibid at S.307
31
Ibid at S.323
32
Ibid at S.376
33
Ibidat S.354
34
Ibidat S.359-369
35
The Prevention of Witch Hunting Bill, 2016
53
women victims of such offences and for matters connected therewith or incidental thereto” 36. It
provided punishments for branding, intimidation, use of criminal force, assault, or subjugation to
any other torture or humiliation of the victim, which are synchronous with the penalizations
under IPC and CrPC. However, the bill has not entered into force yet.
In the absence of a central legislation, different states came up with their own legislations. The
Prevention of Witch (Daain) Practices Act, 1999, Bihar provides for “effective measures to
prevent the witch practices and identification of woman as a witch and their oppression mostly
prevalent in tribal areas and else-where in the state of Bihar and to eliminate the women’s
torture, humiliation and killing by the society and for any other matter connected therewith or
which are incidental thereto”37. Bihar, and subsequently Jharkhand, were among the initial states
to make offences related to witch hunting “cognizable and non bailable”38, a trend which
subsequent state legislations followed. The punishments for labeling as witch, torture, and
abetment in such practices range from Rs. 1000/- to Rs. 2000/-, along with imprisonment for
3months to 1 year, depending on severity of the crime.39 Subsequently, Chhattisgarh40, Orissa41,
Maharashtra42, Rajasthan43, Assam44 and most recently Karnataka45 came up with their
respective legislations on witch-hunt.
Illustrative Trajectory of Recent Legislations
Seeing the magnitude of violence against rural women, previously Rajasthan was opting for a
comprehensive legislation for them. Later it narrowed its scope to witch-hunt alone, yet, the
realization framework ofpreventive actions, provisions for rehabilitation and resettlement,
collective fines via future special schemes by government, makes it unique compared to previous
laws. The Rajasthan Prevention of Witch-Hunting Act, 2015 goes on to provide for rigorous
imprisonment ranging from 1 year46 to 7 years47, depending on the savagery involved and if the
torture culminates into the victims’ “unnatural death”48, the perpetrator may be punished with
life imprisonment. The Preamble of Assam Witch Hunting (Prohibition, Prevention and
Protection) Act additionally provides for “the relief and rehabilitation of victims of such
36
Shri Raghav Lakhanpal, The Prevention of Witch Hunting Bill, 2016,
http://164.100.47.4/billstexts/lsbilltexts/asintroduced/4572LS.pdf
37
The Prevention of Witch (Daain) Practices Act, 1999, Bihar (No. 9 of 1999)
38
Ibid at S.7; subsequently similar provisions were included in The Prevention of Witch-Hunting Practices Act,
2001, Jharkhand
39
Ibid
40
The Chhattisgarh TonahiPratadnaNivaran Act, 2005, Chattisgarh (No. 17 of 2005)
41
The Odisha Prevention of Witch-Hunting Act, 2013, Odisha (No. 3 of 2014)
42
The Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices
and Black Magic Act, 2013, Maharashtra (No. 30 of 2013)
43
The Rajasthan Prevention of Witch-Hunting Act, 2015, Rajasthan (No. 14 of 2015)
44
The Assam Witch Hunting (Prohibition, Prevention and Protection) Act, 2015, Assam (No. 21 of 2018)
45
The Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act, 2017, Karnataka (No.
46 of 2017)
46
Supra note 43, S.4 (1)
47
Supra note 43, S. 4(2)
48
Supra note 43, S.7
54
offences”.49 Under the act, if the perpetrator causes death of the victim50, S. 302 of the IPC
comes to aid, and if he/she is the reason behind suicide of the victim then the punishment may
extent up to life imprisonment51. The gender-neutral paradigm of witch-hunt even elaborates
various facets of torture involving “stoning, hanging, stabbing, dragging, public beating, burning
of hair, pulling of teeth out, cutting of nose or other body parts, blackening of face, whipping,
branding with hot objects…socially ostracize or stigmatize for life…”52, where the imprisonment
in extreme situations may go up to 10 years along with maximum fine of Rs. 1, 00,000/-53.
The Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act,
2017, elucidates the aim of bringing “social awakening and awareness in the society and to
create healthy and safe social environment…”54 The bill itself elucidated huge list of banned
ceremonies, for instance, “Stone-pelting in name of Mata-Mantra, piercing from one side to the
other of the jaw with rod (baibiga practice), forcing a person to carry on evil-practices, for e.g.,
killing an animal by biting its neck (gaavu), claiming to perform surgery by fingers or claiming
to change the sex of a fetus in womb of a woman…”55 etc. The act prescribes that torture results
in death56, or “endangering the life of the victim”57 or resulting in suicide of the victim58, be
punished under provisions of IPC59.
The recent state legislations seem to adopt a rigorous tone and trod the path of IPC when the
episodes of witch-hunt violence cross all extremes. House-trespass and confiscation of property
also get punished on the same lines as under IPC. Thus, these special laws are in tandem with the
provisions under IPC in defining and penalizing those facets of witch-hunt torture which are
already covered under IPC, for instance murder, theft, house-trespass, kidnapping and abduction,
among others. Also, target selection of certain evil practices along with broader horizon of
penalization, sets the trajectory of recent legislations apart from the previous ones. Where the
state legislation is absent and the aspect of torture is not covered under IPC, other national and
international instruments enunciated above, come to rescue. But one cannot ignore the huge
uproar at the national and international fora for worldwide explicit recognition and resolution to
eradicate this common evil.
49
Supra note 44
50
Supra note 44, S.5
51
Supra note 44, S.6
52
Supra note 44, S.9
53
Supra note 44
54
Supra note 45
55
Nagesh Prabhu, Karnataka anti-superstition Bill: what is banned and what is not? THE HINDU, (Sept. 27, 2017,
05:24 PM)
56
Death under the act is seen as “murder” as defined under S.300 of the IPC, 1860 and is punishable under S.302 of
the code.
57
Offender is seen as guilty of “attempt to murder” as defined under S.307 of IPC, 1860, and is punished
accordingly.
58
Offender is punished under S. 306 of the IPC as having abetted suicide of the victim and is punished accordingly
59
Supra note 45, S.3(2) Proviso
55
Analyzing the Normative Presumptions

The continual nature of witch-hunt victimization, from verbal acts of slangs, slurs, labeling as
witch to physical acts of mob lynching, tonsuring hair, parading naked in the community, gang
rape, feeding human excreta, ostracizing, make makes it one of the most outrageous forms of
torture. The long-term agony, for the victim/survivor as well as her kin and well-wishers, of fear,
isolation, stigmatizing, and dislocation are equally unimaginable. The closest kith and kin are
worst affected while the expressions of extended family, neighbors vary from resentment to
complete apathy. This passiveness is largely guided by fear of retaliation from the groups having
vested interest in spreading concocted superstition. For the same reason, the level of positive
participation by the lock panchayat remains questionable.
There is an inherent tendency in all the legislative enactments to treat specific laws as necessary
and sufficient solution to the evil practices. These solutions root primarily on superstition and
consider retribution as a just means to a rational end, for instance, Maharashtra and Karnataka
legislations rely on criminalization of specific facets of witch-hunt to propagate scientific
temper. However, these normative assumptions lack sound empirical structural evidence, fail to
review gaps in existing literature and are inadequate answers to the atrocities perpetrated on the
victims/ survivors. Hence, a socio-legal analysis of this menace grabs extreme relevance. Except
for NCRB reports on “witch-craft motivated murders” and reports on human sacrifices from
certain states, India lacks a holistic national data on witch hunt60. The NCRB report, focusing
only on one or the end facet of witch-hunt torture, while overlooking other extremes of barbarity,
fails to reveal the true magnitude of this savagery and hence faces issues of reliability and
generalisability. Thus, the actual cases of witchcraft motivated torture far outnumber the
statistics indicated by NCRB61.
Our otherwise rational society provides anecdotal gender- centric narratives of this atrocity,
which often views single helpless women as easy targets. But such normative assumption might
overlook fine likes of contemporary witch hunt. Rather, any implementation decision should
focus firstly, on the profile of victims/ survivors; on the case and effect relationship of such a
hunt and secondly, the factors triggering existing gaps in reparative justice. An empirical study
by PLD in three states revealed that, unlike the assumption above, showed that the married
women, mostly in their 40s-50s were more prone to such hunt, unlike the general belief that this
hunt grabs widowed or single women only in its tentacles62. Along with this, the perpetrators
profile consisted primarily of kinship and the cause of target was “advertised superstition” (for
instance due to denial of sexual advances, fear, jealousy, greed for property), instead of actual
superstition. Also given the mixed economic profile of victims, the study found that economic
60
PLD, Piecing Together Perspectives on Witch Hunting: A Review of Literature, (New Delhi, 2013)
61
Jyoti Sharma, Witch Hunting in India, 3 SUPREMO AMICUS (2018)
62
PLD, Contemporary Practices of Witch Hunting: A Report on Social Trends and the Interface with Law, (New
Delhi, 2014)
56
strata had minimal effect on vulnerability of the victim63 The researcher is not blindly believing
in the reliability or generalisability of this data given the small size of sample, however, this form
of violence against married women by husband or his relatives, even before any ojha comes into
picture, irrespective of their economic background, becomes vital addition contra the anecdotal
normative presumption.
The concoction of superstition is possible majorly because of infrastructural, transportation, and
literacy issues discussed above64. This makes lacunae in reparative justice tilt more towards
implementation, awareness and institutionalization rather than the law itself. The structural
inadequacies and indifference of enforcement personnel make trivial motives of witch labeling
accumulate abnormal proportions of attack.
Demystifying the Vacuums in Reparative Justice
The convoluted dynamics of this gender-centric violence sadly gain sadistic pleasure from
savagery against women even during the times of pandemic65. The NCRB report of 2001-14 of
more than 2000 murders motivated by witchcraft reveals only the most barbaric end data of
violence, while the comparatively less savage forms go unreported66. Most cases of such torture
remain in dark, and the rest which do reach the police, are dismissed for want of witnesses,
settlement between families, lack of evidences, etc.67. The consequence of this hunt in the long
run suffers from “protection vacuum”, for instance lifelong stigma, out casting, boycott from
community and social ostracisation.
Despite several specific legislations in place, it takes a physical violence of disproportionate
lengths to invoke the criminal justice machinery. For instance, while dismissing a writ petition
with respect to victimization of 1000 women in name of alleged witchcraft practice, the Apex
Court considered settlement before women electorate representatives as a better alternative then
judging the issue at hand68. In another case the accused was convicted under relevant provisions
of IPC but not under the Prevention of Witch (Daain) Practices, Act, on account of lack of proof
on part of victim that her torture was connected to her “witch” branding, even though the fact
that she was labeled and slanged as a “witch” for long, was well established before the court 69.
Thus, most apex court judgments arise from serious physical injury provisions of IPC (often
63
Ibid
64
Shiv Sahay Singh, The Witches of Jharkhand, THE HINDU, (Dec. 24, 2016, 00:14 AM),
https://www.thehindu.com/news/national/The-%E2%80%98witches%E2%80%99-of-
Jharkhand/article16933528.ece
65
Archana Datta, Witch Hunting: Victims of Superstition? THE TRIBUNE. (March 7, 2020, 11:07 AM),
https://www.tribuneindia.com/news/features/witch-hunting-victims-of-superstition-51378
66
Ibid
67
Supra note 62
68
Supra note 65
69
Tulsa Devi and Ors. V State of Jharkhand 2006 (3) JCR 222 Jhr.; similar acquittal for want of proof occurred in
Madhu Mehra &Ors. V State of Bihar 2003(3) JCR 156 Jhr.
57
those resulting in death), rather than the trauma and torture having nexus with direct witch
branding, under the specific state legislations or otherwise70.
The state legislations focus on identification71, identification associated physical and mental
atrocities72; or the atrocity arising out of such hunt. The later legislations as enunciated above
embarked upon wider ambit of punishments and enlisting the various facets of this torture, yet
the modern hunt gleam contradictory results, which is strongly associated with abysmal
intervention at the preliminary stages. Ironically, the “non cognizable” nature of these laws is
hardly enforced as most; as most “comparatively less barbaric” aspects of torture such as hurt,
house-trespass, beating are covered under bailable heads of IPC. Thus, even if the reporting
happens IPC provisions overshadow witch-hunt cases to categorize the violence under different
heads of IPC, by completely divesting them from their root cause, i.e., emanations from “witch”
accusations and hence the comprehensive special legislations are rendered redundant. In this
sense the special laws seem to contribute no more too preventive action than IPC; however, the
graver problem lies in institutional passiveness and sluggishness of enforcement machinery.
The impunity for prolonged phases of barbarism garners shields from setting violence standards
for enforcement sensitiveness extremely high. Coupled with irresponsive policies, high rates of
acquittal present dismal state of affairs. This is vitally linked to substandard investigations on
account of reasons above. Effective prosecution shall remain a hollow dream unless institutional
aspirations live up to expectations, via sound investigation ensuring substantial provisions for
witness protection. Even the 2013 amendment which made a robust paradigm of IPC for
violence against women, yet this fails to capture the socio-political complexities involved in a
witch-hunt, where atrocious facets like tonsuring, blackening face, parading naked, are aimed
more at destroying societal stance and dignity for life than perpetrating physical violence. This
aspect demands overhauling of institutional mechanism. Restitution and rehabilitation from long
term impacts are two essential wheels of restorative justice. The support services post social
ostracisation, confiscation of property, need to be comprehensively carved out. The “notional”
justice based on normative assumptions cannot really fight the issue of “divining evil”73. A
restorative framework, as per researcher, calls for a victim centric approach rather than further
legislations in this behalf.
Conclusion & Suggestions
Now we revert to the central theme of our argument, of whether special laws suffice needs of
reparative justice. It’s been enlisted in the propositions so far that how settlement of conflicts
moulds itself in varying and abnormal proportions of witch hunt violence. The contemporary
witch-hunt has traversed beyond the horizons of occult praxis to selected victimization for
70
Supra note 62
71
Supra note 38
72
Supra note 40
73
Sundar N., Divining Evil: The State and Witchcraft in Bastar, 5 GENDER, TECHNOLOGY AND
DEVELOPMENT, 3, 425-48(2001)
58
myriad of reasons. Neither are the boundaries of witch hunt violence neatly defined nor the
public demeaning limited only to this violence, it resonates with honor killings, inter-community
dispute dynamics, etc. Despite the broad ambit of IPC the less physically-more mentally and
psychologically harmful violence of face blackening, parading naked, tonsuring of head; deserve
stricter scrutiny in terms of intention and overall aftermath, rather than being dismissed as hurt
simpliciter. The social ostracisation and life-long stigma cannot be dealt so lightly. Over-
emphasis on special law not only increases the benchmark of proving “intention” behind the
violence as being witch-craft motivated but also dangerously precludes from redressal atrocity
perpetrated for other reasons.
For India, the historical context of superstition has transgressed the caste related dynamics to
enter socio-economic and sexual complexities. This contemporary practice demands an explicit
recognition under the present justice system, having due regard to similar forms of violence. A
three-pronged strategy of institutional safeguards, police sensitization along with grass-root
awareness of the crime and effective evaluation of policy implementation is the need of the hour.
The three Rs of relocation, restitution and rehabilitation only can save the reparative mechanism
from turning merely rhetorical. The deep pocket theory of compensation, given the low social
strata of perpetrators in majority of the cases, cannot be relied on. Hence, an immediate harm
analysis should be the set criteria for the state here. Dislocation is inevitable in these
circumstances, but the local authorities, all women group, NGOs, should mandatorily work
towards effective relocation, keeping socio-demographic profile of victim/ survivor in mind.
Equally important is questioning the normative assumptions which conclude framing special
laws as sufficient redressed of the situation, while ignoring the structural similarity of social,
infrastructural, economic, financial inadequacies in which this barbarism flourishes. This
structural correlation needs a vigilant scrutiny to ensure effective implementation of already
existing laws. Propagating rationality via awareness programmers, without a structural transition
working in tandem, cannot materialize in the long run. Hence only a sound policy framework
with better education policy, transportation facilities, health facilities, which transcends the
structural scarcities, can ensure the long awaited reparative justice.
59
THE ROAD AHEAD FOR TRANSFORMATION OF PUBLIC INTUITIONS INTO

STRONG PUBLIC INSTITUTIONS
Amardeep Singh Sandhu74
Abstract
The Agenda 2030 settled under the Sustainable Development Goals (SDGs) by the United
Nations have formulated ambitious goals. There are numerous political, social, economic and
legal problems which limit the competency to achieve these goals. It is not possible to
accomplish these goals by employing the existing problem solving methods. A novel approach
which can redefine and completely overhaul the ailing public institutions is required. An all-
inclusive, multi-disciplinary, comparative approach is required to strengthen our institutions
rather than a narrow approach which looks at both the problem as well as the solution from a
confined and rudimentary point of view. In order to illustrate how a multi-disciplinary approach
can help in strengthening, specifically, the public institutions, an interplay of the Supreme Court
of India and evolution of Public Interest Litigation (PIL) with the field of management studies
has been put under scope and how it ended up bolstering the Supreme Court of India as a potent
Public Institution has been explained. At the same time, future scope of multi-disciplinary
approach in legal field and the steps undertaken to promote this approach have been discussed
in the later portion of the article. The New National Policy on Education, 2020 has given
emphasis to the SDGs and in order to attain them it has introduced the multi-disciplinary
approach of study in all levels of education.
Keywords: Strong Institution, Sustainable Development Goals, Supreme Court, Management,
Public Interest Litigation.
Introduction
The United Nations General Assembly came up with a list of seventeen Sustainable
Development Goals (SDGs) to attain dignity, peace and prosperity for people and the planet75.
The goal number sixteen is ‘Peace, Justice and Strong Institutions’ and the aim of this particular
goal is to “Promote peaceful and inclusive societies for sustainable development, provide access
to justice for all and build effective, accountable and inclusive institutions at all levels”76. The
importance of peace, justice and strong institutions have now been adequately recognized
internationally which was not the situation a few years back when the United Nations
Millennium Declaration was adopted in the year 2000 which did not include this in the
Millennium Development Goals (MDGs).
The significance of the impact of strong institutions on the lives of people, particularly the
weaker and the vulnerable section of the society is immeasurable because of the level of
74
. Ph.D Research Scholar, University of Law and Legal studies, Guru Gobind Singh Indraprashtha University,
Delhi. He can be reached at [email protected]
75
‘Why the SDGs Matter’ <https://www.un.org/sustainabledevelopment/why-the-sdgs-matter/> accessed 20 July
2020.
76
Ibid.
60
dependency of such people on these institutions for their basic necessities, life prospects and
welfare measures. The policies of the government percolate to such people through these
institutions in a top-down manner. Nations with strong institutions have been able to sustain
themselves in a better manner whereas the nations with weak institutions have been unstable and
dealing with issues such as failure of constitutions77, political crisis78, military dictatorships79,
crumbling economies, exploitation of vulnerable sections80. This easily noticeable in various
cases of middle-eastern countries and our neighboring countries like Nepal81, Sri Lanka82
Bangladesh83 and Pakistan84. Attainment of stability is directly proportional to the effective
working of the public institutions like courts, police force and other socio legal and dispute
resolution institutions. The article adopts a very unconventional and theoretical manner of
analysis of the most prominent part of the institution of judiciary – the Supreme Court of India.
The aim here is to establish, theoretically, that the Supreme Court grew stronger as an institute
by looking beyond the ‘Strictly Legal’ answers and adopting a managerial solution to the
problem of growing public mistrust after the initial years of its establishment and same should be
replicated in other spheres and intuitions for attaining the goals set by the United Nations
General Assembly.
Legal hegemony is not the way forward. The need of the hour is to apply new techniques and
find inspiration from all quarters of life, i.e., to indulge in multi-disciplinary approach and
looking for solutions in unusual places to strengthen our institutions. Looking at strictly legal
solutions to an issue i.e., not looking beyond the horizon of law books in neither practical nor
advisable as it means restricting our sphere of solution to a problem. The conventional approach
of looking for solutions inside the knowledge span of the respected field is not efficient enough,
if not unworkable. By shunning such approach, the scope of field from where a solution can
come from becomes infinite. To demonstrate the point in a manner which can substantiate this
argument, the model of Public Interest Litigation (PIL) and its introduction and evolution in the
Supreme Court of India has been employed. PIL has certainly made the Supreme Court of India
a stronger institution, to the point where it has been recognized the ‘Most Powerful Supreme
77
Hari Phuyal, ‘Nepal’s New Constitution: 65 Years in the Making’ (The Diplomat, 18 September 2015)
<https://thediplomat.com/2015/09/nepals-new-constitution-65-years-in-the-making/> accessed 1 August 2020.
78
Michael Safi, ‘Sri Lanka's political crisis: everything you need to know’ (The Guardian, 29 October 2018)
<https://www.theguardian.com/world/2018/oct/29/sri-lankas-political-crisis-everything-you-need-to-know>
accessed 1 August 2020.
79
‘Pakistan profile – Timeline’ (BBC News, 4 March 2019) <https://www.bbc.com/news/world-south-asia-
12966786> accessed 1 August 2020.
80
UNICEF Bangladesh, ‘Preventing violence and exploitation’ <https://www.unicef.org/bangladesh/en/raising-
awareness-child-rights/preventing-violence-and-exploitation> accessed August 01, 2020.
81
Charles Haviland, ‘Why is Nepal's new constitution controversial?’ (BBC News, 19 September 2015)
<https://www.bbc.com/news/world-asia-34280015> accessed 1 August 2020.
82
Human Rights Watch, Sri Lanka: Events of 2018, (World Report, 2019).
83
Overseas Development Institute, Case study of the Challenging the Frontiers of Poverty Reduction Programme
(CFPR), Specially Targeted Ultra Poor II (STUP II) (Gendered risks, poverty and vulnerability in Bangladesh,
2010).
84
Decades of military rule (Development and Cooperation, 1 February 2018)
<https://www.dandc.eu/en/article/brief-history-military-rule-pakistan> accessed 1 August 2020.
61
Court of the World’ by various legal experts, jurists and eminent professors85. Prof. Upendra
Baxi wrote, “the Supreme Court of India is at long last becoming, after thirty-two years of the
Republic, the Supreme Court for Indians”. Subsequently, while comparing the Supreme Courts
of United States of America, United Kingdom, India and elsewhere, Prof. Baxi recorded as his
opinion that ‘ours was clearly the most powerful’. In 2001, Prof. Sathe had unambiguously stated
“The Supreme Court of India has become the most powerful apex court in the world”. There is
an unending series of cases where the Supreme Court has acted on the issues of the downtrodden
section of the public. Then, the Supreme Court moved on to cases pertaining to environmental
issues which generally involved a major fault on the part of the state which was going unnoticed
and then further on to other public related issues.
Public Interest Litigation (PIL) is looked up to as a fighting sword, a tool of access that the
members of the public have which was not available to them earlier. In reality, it may not be
totally true that the public acquired this sword only after the Supreme Court of India devised the
new method of hearing petitions as PILs. Nevertheless, for the public, the image of PIL is such
that it is usually believed that the Supreme Court has become a guardian of not only their
fundamental rights but every social and economic aspect and other facets of their basic rights.
The public has found its tool to fight with the mighty state through the PIL.
This article juxtaposes the concept of P.I.L. with a marketing theory to showcase the importance
of multi-disciplinary approach and the endless possibility which could open up by adopting a
multi-disciplinary and comparative approach in finding solutions to socio legal problems and
strengthening the institutions. The article attempts to answer the question, how the public has
accepted Public Interest Litigation as more efficient and favorable than the regular litigation
process taking place in the same court? The regular litigation process in India is perceived as a
time consuming, lawyer centric86, expansive and unfair. Indian courts are referred to as ‘highly
time consuming’ in general parlance even by the people working in the courts, i.e., judges,
advocates, staff and most importantly by the litigants. In short, most of the litigants are not
satisfied with the way the court functions. The reason for such acceptability of the concept of
PILs in the same court where regular litigation is seen as a very difficult thing to do lies in a
theory of market management. This is not to suggest that the Supreme Court or the pioneer
judges87 of the concept of PIL adopted this theory of market management knowingly. What is
being suggested is that it became popular and was accepted by the public because it concurs with
the theory, though admittedly, most probably unknowingly so. How the most powerful court in
the world, through judicial activism did gave birth to PIL as a lucrative alternative to regular
litigation?
85
Legal luminaries such as Prof. Upendra Baxi, Prof. S. P. Sathe and the former Chief Justice of India Hon’ble
Justice A.M. Ahmadi. Chander Uday Singh, ‘The Supreme Court Is in the Thrall of the Government’ (The Wire, 28
May 2020) <https://thewire.in/law/supreme-court-public-institution> accessed 8 June 2020.
86
Better the lawyer, greater the chances of getting a favourable order in a case.
87
P. N. Bhagwati, V. R. Krishna Iyer, D. A. Desai, and O. Chinnappa Reddy, JJ.
62
Juxtaposition of Law and Managerial Study

The above-mentioned theory involves the five ways to reach out to the public without harming a
brand.88 A brief explanation of the theory before applying it to the concept of PIL: There are
always three classes of customers in a given market, which are namely, the upper, the middle and
the lower class. As per the theory, a brand can successfully cater only to any two consequent
classes at most. No company in the entire world has ever, successfully, sold its goods to all
category of customers under the same brand name. This means that to cater to the third class and
cover the entire public, a brand has to form a subsidiary89,entity or a separate brand to effectively
keep its earlier class of buyers while adding the new ones. Following are the aforementioned five
ways:
1. Distance from the core brand – Maruti Suzuki sold its premium cars through a separate chain
of retail showrooms called NEXA. Public Interest Litigation is recognised as separate from
the rest of the line-up of cases. Even the Supreme Court had different PIL benches at the
beginning of the PIL litigation. Few of the judges were recognised as judges who were
dealing with the PILs and conferring special attention to these matters. This caught the
attention of the litigants who took up issues of public interest with a lot of enthusiasm.
Certain litigants were always filing a PIL for some cause and these PILs even resulted in
getting favourable orders from the court.
2. New customer type – Maruti Suzuki did this well, rightly trying to attract customers with
extra disposable income who could become loyal long-term luxury buyers. The Supreme
Court also diluted the concept of ‘locus standi’ to allow a new kind of litigant to enter the
court for the larger good of the public for whom courts were out of bounds. This litigant was
not the regular litigant who was fighting for a personal cause but instead, these were public
spirited people who were entertained by the court as people arguing a case in public interest.
The admission of such petitions, prima facie, meant that the court recognises the fact that the
litigant is a public spirited person and hence a new type of litigant.
3. Embrace clearly distinguished tiers of value – The distinction between the various classes
(upper, middle or lower) has to be acknowledged and then catered to according to their
preferences. The Supreme Court also acknowledged that there is a different class of litigants
which are distinguishable from the regular breed of litigants. The Supreme Court embraced
88
Stephen Wunker, ‘5 Ways to Reach Down-Market Consumers Without Harming Your Brand’ (Forbes, 8 October
2014) <https://www.forbes.com/sites/stephenwunker/2014/10/08/5-ways-to-reach-down-market-consumers-
without-harming-your-brand/> accessed 20 July 2020.
89
For instance, Maruti Suzuki had to form NEXA as a retail network for premium range of products which are not
available at regular Maruti Suzuki showrooms. NEXA was formed after multiple failed attempts by Maruti Suzuki
to enter the market of premium range cars. NEXA is now the third largest car seller in India.
PTI, ‘Maruti's Nexa becomes the third largest auto retail brand in just five years’ (The Economic Times, 4 August
2020) < https://economictimes.indiatimes.com/industry/auto/auto-news/marutis-brand-nexa-becomes-the-third-
largest-auto-retail-brand-in-just-five-years/articleshow/77347038.cms?from=mdr > accessed 20 July 2020.
63
such litigants in a welcome manner. The Court was aware of the fact that the target
population of the PILs are not necessarily capable of filing petitions in the court and took the
innovative step of introducing epistolary jurisdiction through which it allowed even letters to
be treated as writ petitions. People would send in letters addressed to the court or some judge
which would then be converted into a proper PIL by the advocates appointed by the courts as
amicus curiae. The amicus curiae appointed by the court were advocates of repute who were
arguing these matters free of cost. Because of the inability of the people to come to the court
for reasons of poverty or ignorance, the court allowed public spirited people to file PILs by
relaxing the rule of locus standi. This reflected the seriousness which the bench and the bar
had for PILs.
4. Different sales channels – This means that the new channel opened by the brand is different
in terms of sales and marketing strategies from the established channels. One way to do this
by selling products of different category in different ways. The Supreme Court also adopted a
rather off beat and different approach towards PILs by relaxing the procedure of evidence
gathering and appointing court commissioners, forming expert committees to perform the
task of fact gathering which is not normally the task of the Supreme Court. Also, the original
jurisdiction can be invoked by the litigants which is usually not the case.
5. Early positive reviews – Getting a lot of early publicity can be useful. Sustainable success,
however, comes from getting positive reviews from the right segment of customers. But the
initial reviews should be positive to allow the brand to carry on with the positive reviews and
increase its sale. The concept of PIL was received with enthusiasm by the academicians,
judges, members of society and the bar. Although, some resistance from the bar was received
but the impact of the PILs was such that the resistance really did not have any force and
ultimately the positive reviews garnered by the concept of PIL as a tool in the hands of the
public spirited people to help the poor, marginalised, illiterate, prison inmates etc won over
the trivial resistance. There was great amount of enthusiasm about the PIL and people filed
PILs regularly. Many academicians90, advocates91 and groups92 took up multitude of matters
to the Supreme Court through PILs. The initial success of the PIL system played an
important role in the general acceptance and overall positive response to the PIL system in
India.
But for long term sustainability, concept of PIL kept getting updated and updated here means
wider. When the issues of general public importance such as environmental cases came up, the
court did not reject them because they were not contesting issues of down trodden people per se
or people who could not afford a representation in the court, but rather accepted such petitions
and acted on a series of cases which made the scope of the PILs wider. Acceptance of
90
Prof. (Dr.) Upendra Baxi.
91
M.C. Mehta, Colin Gonsalves, Prashant Bhushan.
92
People’s Union for Democratic Rights, People’s Union for Civil Liberties, Centre for Public Interest Litigation.
64
environmental cases93 and passing strict orders against the government also increased the
presence, acceptability and respect of the court in general public. And then the court also heard
several corruption cases94 as PILs which again gave a lot of new ground to both the Supreme
Court and the concept of PIL.
Conclusion of the Argument
At the offset, it is being acknowledged that the lens that has been used in looking at the system of
PIL is rather off beat but the rationale behind it is that, with the Supreme Court’s effort in
positioning itself as a protector of the people and indulging in the art of democratic positioning95,
it was not essentially involved in a simple judicial work but it was rather involved in ‘marketing’
itself as a viable option, a remedy which the general public can avail for protection of their
fundamental rights against the government. Therefore, this article uses a marketing theory to
evaluate how the concept of Public Interest Litigation became so popular in the eyes of a litigant
and the public generally. The recent trend of Masters in Business Administration in law also
reflects that maybe the courts, just like any other organization can use some of the theories of
management and marketing to manage the workload, to sort out the manner of working of the
courts. It will, probably, take more than just efficient judges, serious advocates and litigants or a
large force of judges to finish the backlog of judiciary and improve its image and functioning
capabilities. The solution of the issues faced by the judiciary will, perhaps, come from outside
the courts or the legal arena. Any suggestions from outside the circle of legal minds should also
be welcomed in taking new steps to improve the condition of our courts. It is high time that legal
fraternity acknowledges and implements ideas of different fields to improve the courts and the
justice delivery system. Even the prison system of India can be relooked from this perspective
for improvement through innovative changes to tackle issues such as overcrowding of prisons,
reformation quotient of prisons. On the other hand, innovative punishments and sentencing
policies for helping courts can be formulated after taking into account the kind of crime,
economic standing of parties, reformation, psychological aspects.
From the study of the evolution of PIL vis-a-vis the parameters described in the theory96, it
becomes clear that, as per the prediction of the theory, the chances of success of the system of
93
M. C. Mehta v Union of India Writ Petition Number 13381 of 1984 (Taj Trapezium Case), M. C. Mehta v Union of
India Writ Petition Number 3727 of 1985 (Ganga Pollution Case), M. C. Mehta v Union of India Writ Petition
Number 13029 of 1985 (Delhi Vehicular Pollution Case), M. C. Mehta v Union of India Writ Petition Number 4677
of 1985 (Delhi Industrial Relocation Case), M. C. Mehta v Union of India (1992) 3 SCC 256 (Delhi Stone Crushing
Case), Indian Council for Enviro-legal Action v Union of India (1996) 3 SCC 212 (Bichhri Case), Vellore Citizens’
Welfare Forum v Union of India (1996) 5 SCC 647, Almitra Patel v Union of India Writ Petition Number 888 of
1996 (Municipal Solid Waste Management Case).
94
Manohar Lal Sharma v Principal Secretary (2014) SCC Online 634 (Coal Scam Case), Subramaniam Swamy v
Manmohan Singh (2012) 3 SCC 64 and Centre for Public Interest Litigation v Union of India (2012) 3 SCC
1(Telecom Case).
95
Pratap Bhanu Mehta, ‘The Indian Supreme Court and the Art of Democratic Positioning’ in Mark Tushnet and
Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press
2015).
96
Supra note 14.
65
PIL was high. In addition, it can also be argued that if rather than starting the PIL system, if these
cases were handled as regular writ petitions, then the treatment would also be regular. It would
continue to follow the technicalities of locus standi, jurisdiction, evidence strictly and would also
leave a considerable number of cases out of its purview on account of lack of jurisdiction or
separation of powers. The court as well as the litigants, achieved a lot while riding on a wave of
enthusiasm for public interest which would otherwise be left up to the other organs of the
government very conveniently. It should also be mentioned that this paper leaves a magnanimous
scope for further multi-disciplinary research to find similarities between the legal concepts and
theories and the concepts in other fields of study. Various inter connections can be established
between these concepts to understand both of them better and to develop the legal field in a more
scientific and logical manner. This provides a very potent opportunity to test the theories from
other fields of study in legal arena and look beyond legal circles to find the solution to
multifaceted problems faced by the courts and the justice delivery system today.
The Link between the Juxtaposition Argument and Transforming the Supreme Court into
a Strong Institution
The point of drawing the above comparison is that if an unintended application of management
theory by the Supreme Court could boost its image of being a robust institution, then the
Supreme Court can intentionally recreate such solutions to other problems by looking for
solutions in different fields. It will lead to building a highly efficient and an even stronger
institution which provides a great impetus to the ultimate aim of achieving the SDGs in a timely
manner.
The Future Course for the Supreme Court of India
Public perception of an institution is a major factor which decides the operational strength of the
institution. “The prestige, stature and independence of the judiciary are dependent on public trust
and confidence”97. In order to strengthen an institution like judiciary, an efficient and lawful
working of the institution is vital. The efficiency and the lawfulness of the judicial system has
become questionable because of various reasons including corruption, delay and other issues.98
The Supreme Court of India has been the Centre of controversies in the recent past but a constant
blot on the image of entire Indian judicial system is that they are painfully slow and many
matters go on in courts for decades.99 Justice delayed is justice denied is used in a routine manner
to caution the courts in India. A new phrase, ‘Justice delayed is development denied’ 100 has been
coined recently which reflects that the courts are seen as a hindrance in development by the
97
Justice (Retd.) Madan B. Lokur, ‘India’s Judiciary Is Facing an Increasing Lack of Trust by Public’ (Outlook
India, 13 January 2020) <https://www.outlookindia.com/magazine/story/india-news-indias-judiciary-is-facing-an-
increasing-lack-of-trust-by-public/302545> accessed 23 June 2020.
98
Ibid.
99
Ibid.
100
Amrit Amirapu,’Justice delayed is development denied: The effect of slow courts on economic outcomes in
India’ (Ideas for India, 22 August 2016) <https://www.ideasforindia.in/topics/governance/justice-delayed-is-
development-denied-the-effect-of-slow-courts-on-economic-outcomes-in-india.html> accessed 23 June 2020.
66
public as well as the government. The performance of courts have implication on an

International level. According to World Bank, ability and speed of enforcement of a contract by
the courts impacts the foreign investors101. The enforceability of the contracts is directly
proportional to the level of investments and business pouring in a country from abroad. India’s
ranking on an aggregate of 10 parameters in the Ease of Doing Business is 63 but on the
parameter of ‘Enforcing Contracts’, it is still ranked 163 out of 190 countries102. The parameter
of ‘enforcing contracts’ evaluates the “time and cost for resolving a commercial dispute through
a local first-instance court, and the quality of judicial processes”103. The Specific Relief
(Amendment) Act, 2018 was introduced by the Government of India with an aim to enhance the
business activity and minimize the constraints as much as possible. The judiciary should make
efforts for resolving the long standing issues plaguing working, public perception and justice
delivery system in order to improve the socio-legal structure.
Conclusion
A multi-disciplinary approach is not a distant dream it was up until now, the commitment to
achieve the SDGs is visible with the introduction of the new National Policy on Education
(NPE), 2020104 which changes the ailing Indian education structure and stresses on a multi-
disciplinary pattern of education from primary school to the higher education. A direct
inspiration and a target for this policy is to fulfil the Indian commitments to the SDGs 105. The
idea, possibility and henceforth the practical experience of engaging in multi-disciplinary study
straight from the primary education will inculcate a habit of attempting comparative and multi-
disciplinary study. The students are being prepared in this field of study as it has been recognized
as the need of the coming times if nations are to sustain themselves and their development.
The COVID-19 pandemic has forced the nations across the globe to take notice of the
shortcomings and incapability of their institutions to function under emergency and strained
situations. The pandemic has derailed the march towards the achievement of the SDGs.106 The
pandemic and the countrywide lockdowns around the world has pushed millions of people into
poverty and it has exposed the weakness and the fragility of our socio-legal, economic and
healthcare institutions. The pandemic has exposed the weakness in our health care system; it has
exposed the lack of coverage of our social security measures. It has also exposed the weak
financial support and credit support given to small industries, especially the Micro, Small and
101
The World Bank, Doing Business: Measuring Business Regulations (Doing Business, 2020).
102
The World Bank, Economy Profile of India (Doing Business 2020 Indicators, 2020).
103
Ibid.
104
PIB Delhi, ‘Cabinet Approves National Education Policy 2020, paving way for transformational reforms in
school and higher education systems in the country’ <https://pib.gov.in/PressReleasePage.aspx?PRID=1642049>
accessed 30 July 2020.
105
Ibid.
106
Armida SalsiahAlisjahbana, ‘A revolution in policy mindset’ (The Hindu, 27 July 2020)
<https://www.thehindu.com/opinion/op-ed/a-revolution-in-policy-mindset/article32197815.ece> accessed 1 August
2020.
67
Medium Enterprise (MSME) sector107. Governments around the world, including India have
been forced to adapt and to innovate by expanding their welfare programmes. A number of
countries have expanded the scope of their food security schemes; they have diverted huge
amounts of financial resources to strengthen their healthcare infrastructure and tried to increase
the coverage of social security measures such as insurance. They have announced greater credit
and financial support to MSMEs. The pandemic has breached the capacities of the public sector,
it has pushed governments around the world to seek greater partnerships with the private sector
in order to jointly mobilise their resources and fight the pandemic and as well as combat the
socio-economic challenges that have been brought up by the pandemic.
In order to achieve the SDGs, a complete revolution in the policy mind-set of government is
required to make our institutions more resilient and enable the institutions to adapt to any future
shocks on the scale of the COVID-19 pandemic. The tensions in the international political
scenario have scaled to alarming levels. The situation of a ‘hostile peace’ has been created where
world peace, harmony, security and economy are hanging by a thread. The capacity of the public
institutions to handle such a 360˚ urgency is a requirement for achieving the SDGs. The
magnitude of the issue demands a more inclusive approach towards governance by adopting a
universal approach towards social protection and provide for universal coverage of the food
security schemes, insurance programmes, education and health care in order to ensure complete
social protection for the weaker sections. The multidisciplinary approach is not the solution per
se but a gateway to finding the solution of complex multifaceted problems. The role and
requirement of strong institutions is to establish a cohesive network which can provide a
sustainable future to tackle the combined effects of poverty, climate degradation, future
pandemics and societal challenges.
107
Ibid.
68
A CLOSER LOOK AT THE PAROL EVIDENCE RULE: UNDERSTANDING

INTERPRETATIONS IN COMMON LAW, AMERICAN LAW & LEX MERCATORIA
Prateek Singh1
Abstract
The parol evidence rule is a doctrine emerging from English common law that regulates what
kind of evidences parties may present to the court in their favor in a contractual dispute. As a
long-standing principle, parties are prohibited from contradicting the contents of the written
contract by presenting evidences of prior oral negotiations. But due to the frequent judicial
deliberations on the matter, courts have interpreted a series of exceptional circumstances where
the parole evidence rule remains inapplicable. However, the law is not uniform in all
jurisdictions of the world, and all of them seem to have their own understanding. This paper
aims to establish a pattern of judicial trends in three different jurisdictions – namely English
Common law, American law, and also under international statutes - to help identify the
similarities and the differences in judicial determinations.
Introduction
The parol evidence rule is a doctrine in contract law which prohibits the permissibility of any
evidence other than what has been specified in the written contract, thereby rendering any
external evidence immaterial. In essence, the rule prevents parties from presenting evidences
such as oral agreements and background discussions which may be used to indicate a different
intent of the explicit provision in the contract.2 The rule originated in Common law by the end of
the Middle Ages, through a custom of stamping an agreement document with a seal in order to
confirm its authenticity.3
The rule is used to govern the extent up to which parties may supplement evidences to the court
in order to explain, modify or supplement the agreement under consideration. Based on this law,
it may be interpreted that when parties authorize a written contract, they also impliedly give their
consent to relinquish their right to bring any evidence, refuting the provisions of the written
contract, and making all such extrinsic sources inadmissible in court.4
However, there is a lack of uniformity in the idea whether the law is to be considered as a matter
of evidence law or of the nature of legal acts. Common law treats parole evidence under
evidence law.5 Similarly, Section 92 of the Indian Evidence Act rejects the admissibility of any
oral evidences in cases where the parties have reduced the agreement to the form of a written
document. On the other hand, American law categorizes parole evidence as a factual issue, and
not relating to evidences.6 As per § 2-202 UCC, the terms with respect to which the confirmatory
1
BBA LLB student from National Law University, Jodhpur. He can be reached at [email protected].
2
Harvard Law Review, 1904. The Parol Evidence Rule. 17(4), p.271.
3
John H. Wigmore, A Brief History of the Parol Evidence Rule, 4 Columbia Law Review, 338 (1904)
4
Corbin, A., 1944. The Parol Evidence Rule. The Yale Law Journal, 53(4), p.603.
5
[1907] 1 KB 10.
6
Alberto Zuppi, The Parol Evidence Rule: A Comparative Study of The Common Law, The Civil Law Tradition, And
Lex Mercatoria, 35 Georgia Journal of International and Comparative Law, 239-240 (2007).
69
memoranda of the parties agree or which are otherwise set forth in a writing intended by the
parties as a final expression of their agreement with respect to such terms as are included therein
may not be contradicted by evidence of any prior agreement or of a contemporaneous oral
agreement but may be explained or supplemented, based on the circumstances.
Interpretation in Common Law

The Law Commission of England and Wales identified three specific rules which essentially
govern the parole evidence rule prohibit the explanation of (a) any terms within the document
through external sources; (b) any terms not expressly included in the document; or (c) proving
the framer’s intention behind the contract.7 If these three principles are to be followed with a
rigorous interpretation, then no facts, representations and undertakings on behalf of the parties
apart from what has been quoted in the original document may be admissible by the court.
1.1 Justification for restricting parol evidence
The very purpose of a formal contract is to put an end to disputes which may arise if the matter
were to be left upon verbal negotiations partly consisting of letters and partly of conversations.8
In cases where there exists a disagreement on the terms on which the contract was made, the
application of the rule narrows the issues and keeps the dispute within reasonable bounds. This
helps simplify the court’s work while also ensuring that parties only enter into a contract after
diligently reading its language.9 Some have even said that admittance of parole evidence would
simply lead to the contradiction of written documents, which may in turn lead to great
inconveniences and cause extended litigations.10
Calamari has provided two justifications for the rule in common law. The first is based on
parties’ implicit consent to make the document an expression of their final agreement that shall
supersede all background evidences. The second approach is based on the quality of evidence, as
per which, a final writing drafted carefully in order to reflect parties’ intentions deserves a
priority in being interpreted as a proof than any prior agreements between the parties.11
1.2 Significance of written agreements
In Evans v. Roe,12 the plaintiff was engaged by the defendants as a foreman of their works. The
two signed an agreement stating:
7
Page 2 of Law Commission of England and Wales, Law of Contract: The Parol Evidence Rule (1976).
8
Inglis v. Buttery (1878) LR App Cas 552.
9
CT McCormick, The Parol Evidence Rule as a Procedural Device for Control of the Jury, 11 41 Yale LJ, 365-385
(1932).
10
Mercantile Agency Co. Ltd. v. Flitwick Chalybeate Co. (1897) 14 TLR 90.
11
Alberto Zuppi, The Parol Evidence Rule: A Comparative Study of The Common Law, The Civil Law Tradition,
And Lex Mercatoria, 35 Georgia Journal of International and Comparative Law, 239-240 (2007) See also John D.
Calamari & Joseph M. Perillo, Contracts 234 (4th ed. 1999).
12
(1872) LR 7 CP 138.
70
“April 13, 1871. I hereby agree to accept the situation as foreman of the works of Messrs.
J.T. Roe & Co., flock and shoddy manufacturers, etc., and to do all that lays in my power
to serve them faithfully, and promote the welfare of the said firm, on my receiving a
salary of two pounds per week and house to live in from 19th April, 1871.”
Before signing the document, the defendants orally confirmed with the plaintiff whether he
agrees that the contract shall be in place for a year to which he obliged. The plaintiff started his
work about 45 days after the decided date due to which the defendants gave him wages
amounting to a week and dismissed his services.
With a strict approach to the agreement, it may be construed that the defendants were well within
the agreement and had full authority to dismiss the plaintiff. However, the jury took into
consideration, the oral testimony proving that the contract was intended to be for a period of one
year, meaning that the defendant had violated the contract.
The jury’s approach, however, was rejected in the appellate court with the opinion that the
evidence of what was said at the time of framing the contract has no regard. Rather, if the court
accepts such extrinsic evidences. Justice Grove added, “it would render written agreements
useless if conversations which take place at the time could be let in to vary them.”
Thus, the court established a trend of preserving the sanctity of written agreements and referring
to oral agreements only when there is a specific need to do so.
Oftentimes courts have reduced their rigidity towards the rule based on the facts leading upto the
case. As the law gradually permitted the admissibility of extrinsic sources, scholars have also
opined that written contracts merely hold a “position of interpretative priority” over extrinsic
evidences, since both of them have become tolerable to the courts.13
1.3 Exceptions
In Henderson v. Arthur,14 the court held that there may be certain situations in which parties may
present external evidences to support their claims, such as i. when the contract has explicit
provisions which clearly indicate the intentions of the contract, yet there exists an ambiguity due
to extrinsic circumstances; ii. in case due to the passage of time, the language of the deed has
become obscure; iii. in cases where it has to be proved that a certain form of consideration is not
repugnant with what has been stated in the deed; iv. in cases where the goods have been
delivered at time different from what the deed significances; v. where it is required to prove a
customary right which has not been explicitly mentioned in the deed, but not inconsistent with
any of its stipulations; or lastly vi. where fraud or illegality in the formation of the deed is relied
on to avoid it.
Yet due to the continually evolving nature of law, the rigidity of parole evidence rule was
13
John Breen, Statutory Interpretation and the Lessons of Llewellyn, 33 Loyola of Los Angeles Law Review, 293
(2000), see alsoJames J. White, Robert Summers, Robert Hillman, Uniform Commercial Code, § 2-9, at 95.
14
[1907] 1 KB 10.
71
debilitated by the courts by taking into account more situations in which the rule may be relaxed.
Since the rule of parol evidence evolved from common law, several judgments by English courts
on the law have become universal landmarks and are considered the cornerstone for parole
evidence.
1.4 Uncertainty regarding the existence of agreement
In Pym v. Campbell,15parties entered a written agreement wherein the defendant agreed to pay
three-eighths of the profits which are to accrue from the plaintiff’s new invention. However, the
invention was never approved by the defendant before it came to the market. Accordingly, the
defendant refused to pay the purchase price and was sued for breach of contract. The defendant
claimed that despite there being no clause in the agreement which says so, but the agreement was
conditional upon the approval of the invention. The court accepted the defense and held that
parole evidence is inapplicable here because the issue was not the construction of terms of the
contract, but whether there existed an agreement or not.
1.5 Customs and implied terms
In general course contracts between two businesses are drafted by legal advisors who ensure
minimum ambiguity in the language of the agreement. But contracts are often drafted by the
parties themselves who are working in the same line of business. In such cases, they may use
their own expressions and leave certain provisions unexplained with an assumption of uniformity
of interpretation. With regard to this, Justice Park opined:
“It has long been settled, that, in commercial transactions, extrinsic evidence of custom
and usage is admissible to annex incidents to written contracts, in matters with respect to
which they are silent.”
Following this idea, in Smith v. Wilson,16the court admitted extrinsic evidences in order to
determine the true meaning of the phrase “1000 rabbits” was actually “1200 rabbits”.
1.6 Document not conclusive
In Evans v. Andrea Merzario,17the defendant gave an oral assurance to the plaintiff that the
plaintiff’s goods shall be carried by placing them below the deck of the ship, where they will
remain safe. However, the defendant failed to do that due to which most of the goods belonging
to the plaintiff were perished due to a storm. Though the pre-printed conditions of the agreement
allowed the defendant to store goods as per his convenience, the court held that he breached his
contract, and therefore the court could not simply rely on the written agreement and held that an
exception to the rule shall be made in instances where the written agreement does not explicitly
constitute the entire agreement on which the parties had actually agreed.
15
(1856) 6 E & B 370.
16
(1832) 3 B. & Ad. 728.
17
[1976] 1 WLR 1078.
72
1.7 Parties’ capacity to contract

In Humfreysv. Dale,18 the court held that parties shall be allowed to bring in external evidence in
order to indicate the capacities in which the parties contracted. In case a person contracts as a
principal, oral evidence may be admitted to prove that he in turn acted as another’s agent.
1.8 Linguistic ambiguity
Lord Denning, in a dissenting opinion affirmed that in in case a clause in a deed is so
ambiguously or defectively expressed that a court cannot, even by reference to the context,
collect the meaning of the parties, it would be void on account of uncertainty. In such instances,
parties are “the very best guides to the way in which it was used.”19
1.9 Implicit meaning of contract
In BP Refinery (Westernport) Pty Ltd v. Hastings Shire Council,20the court established that in
case a term whose implicit meaning is to be sought, it must be “reasonable and equitable,” so as
to provide “business efficacy” to the contract. The same shall help make the contract capable of
“clear expression,” and not contradictory to any express term of the contract.
1.10 Contingent contract
In cases where the parties to a written contract have orally decided that the contract shall only be
enforced upon the happening of a certain instance, the court may accept oral testimonies in order
to understand the context in which the agreement was drafted.21
1.11 Rectification of contract
In Joscelyne v. Nissen,22a father and daughter came to an agreement for the transfer of business
to the daughter, wherein the father understood the contract entitles him to timely pensions from
his daughter so that he can manage his daily expenses. Since there was an ambiguity in the
contract, the court allowed the document to be rectified in order to include the provision that had
been omitted.
1.12 Applicability in commercial practice
Contracting parties may not always be bound by a written document while coming to an
agreement. Often the documents that may seem to be of contractual nature are merely
declaratory. For example, the King’s Bench recognizes a bill of lading not as a contract for
carriage, but as simply a document confirming the receipt of goods on behalf of the carrier. 23 A
18
(1857) 7 E & B 266.
19
Wickman Machine Tool Sales Ltd v. Schuler AG, (1972) 2 All ER 1173.
20
(1977) 52 A.L.J.R. 20, 26 (P.C.)
21
(1856) 6 E & B 370.
22
[1970] 2 QB 86, SeeP Kavanagh, Rectifying Written Agreements, 34 Modern Law Review, 102 (1971),
https://www.jstor.org/stable/1094034 (last visited Sep 18, 2020).
23
The Ardennes [1951] 1 KB 55.
73
ticket provided to a customer is not always a contract for service, but can simply be a declaration
of receipt of money.24
The Law Commission of England and Wales has also pointed out that even when the document
between the parties is of a contractual nature, it may not always be binding upon parties. Parties
may have come to an oral agreement collateral to the written agreement. But any evidence of the
collateral agreement should not be excluded by the rule since it is what delivers the essence of
the contract.25
Similarly, Lord Campbell has also mentioned a difficulty which arises in day-to-day transactions.
Since parties may not always have recourse to a legal advisor to draft their contracts, they need
to draft the contract themselves. But this may lead to the omission of certain terms and
conditions which actually build the essence of the contract. This issue happens in both
commercial as well as non-commercial transactions, especially when the parties have a pre-
existing bond with each other:
“...the minds of lawyers are under a different influence from that which, in spite of them,
will always influence the practices of traders.... The former desire certainty, and would
have a written contract express all its terms, and desire that no parole evidence beyond it
should be receivable. But merchants and traders, with a multiplicity of transactions
pressing on them, and moving in a narrow circle, and meeting each other daily, desire to
write little, and leave unwritten what they take for granted in every contract. They will
continue to do so.... It is the business of Courts reasonably so to shape their rules of
evidence as to make them suitable to the habits of mankind, and such as are not likely to
exclude the actual facts of the dealings between parties when they are to determine on the
controversies which grow out of them.”26
In order to make account for such matters, courts have molded the parole evidence rule in order
to incorporate certain “habits of mankind”, and have also reduced its scope so as to diminish any
scope for uncertainty.
Owing to the reformations the courts have had to make to facilitate such cases, several jurists are
of the idea that the certainty and finality which the rule once could provide through its rigidity
can no more be obtained. Most matters eventually conclude with the courts admitting extrinsic
evidences due to an exception established by the court which has now led to fallibility, due to
which the commission recommended for its abolishment in 1976.27 However, it must be noted
that the same commission pointed out that the various extensive exceptions which have been
admitted to the rule judicial deliberation have actually preserved the rule from extinction.28 The
24
Chapelton v. Barry UDC [1940] 1 KB 532.
25
Law Commission of England and Wales, The Parol Evidence Rule (Her Majesty's Stationery Office) (1976)
26
Ibid.
27
Ibid.
28
Law Commission of England and Wales, The Parol Evidence Rule (Her Majesty's Stationery Office) (1986)
74
idea that a documented contract may be regarded as the whole contract has less strength today
than in prior times, so it has become more than important for courts to make provisions for
external evidences, thereby continuing with a significant need for the parole evidence rule in the
judicial system.
Interpretation in American Law
American law has codified the rule of parole evidence in § 2-202 of Uniform Commercial Code
which permits extrinsic evidences only (a) by course of dealing or usage of trade (Section 1-205)
or by course of performance (Section 2-208); and (b) by evidence of consistent additional terms
unless the court finds the writing to have been intended also as a complete and exclusive
statement of the terms of the agreement. As per § 213, Restatement (Second) of Contracts, a
completely integrated binding agreement discharges all prior agreements to the extent that they
are within its scope.
Though America has adopted this provision from common law, it does not consider parol
evidence as a matter of evidence or procedure, but as a matter of substantive law that
acknowledges the significance of a certain fact in order to establish the substance of an
agreement.29 As per the Restatement, the rule is not a rule of interpretation of law, but merely a
definition of the themes of interpretation.30 Some have even disregarded the idea of recognising
the rule of parol evidence as a binding law, but instead view it as a cluster of legal concepts and
doctrines, relating to the distinction of relevant facts from immaterial facts from within a written
instrument.31
Doctrine of integration
A contract is said to be ‘integrated’ when the parties came consented to the written document
with an intention to regard it as a complete, accurate and final representation of their agreement.
Under American jurisprudence, the parol evidence rule has progressed in a way that its
application is impacted by writings, written instruments and memorials that have been integrated
by the parties. This characterization of writings has a huge legal significance. As per Williston,
its major impression is that it triggers the application of the rule. 32 Further, simply reducing an
agreement to a single written memorial does not necessarily mean that parties intended the terms
contained therein to be a final or a complete representation of their agreement. Instead,
integration simply means that a specific part of the contract, as enshrined in the memorial, is
complete in its individual sense and requires no extrinsic evidence to support itself.33 Written
29
Demystifying the Parol Evidence Rule: An Analysis of the Parol Evidence Rule in American Contract
Jurisprudence and the Lack thereof under the CISGSee Juanda Daniel, K.I.S.S. The Parol Evidence Rule Goodbye:
Simplifying the Concept of Protecting the Parties’ Written Agreement, 57 Syracuse Law Review 227, 228 (2007).
30
§ 212, Restatement (Second) of Contracts, American Law Institute (1981).
31
Scott Burnham, The Parol Evidence Rule: Don't Be Afraid of the Dark, 55 Montana Law Review (1994).
32
Samuel Williston, Williston on Contracts (Lawyers Co-operative Pub. Co.) (1979)
33
Juanda Daniel, K.I.S.S. The Parol Evidence Rule Goodbye: Simplifying the Concept of Protecting the Parties’
Written Agreement, 57 Syracuse Law Review 238-240 (2007).
75
memorials are generally produced during negotiations with different terms, a memorial might
thus represent only part of an agreement, or it might be merely tentative. As per Daniel, in order
for a written memorial to be integrated, the parties must have intended for the memorial to be the
final and accurate expression of the terms contained.34 Consequently, courts prohibit the
admissibility of extrinsic evidence in cases where the part of the agreement in question is
integrated.
In cases where the contract is only partially integrated, the contracts may be supplemented, but
not contradicted. Some courts opine that a term outside the writing must directly conflict with an
express term of the writing to be held contradictory, whereas others use a broader view of a
contradictory term, as per which, any term that contradicts express as well as implied terms is
contradictory to the written contract.35
Williston rule
Similar to the original parol evidence rule, this approach offers a legal significance to the act of
reducing an agreement into a written document. Under this approach, the determination of
whether the agreement is integrated or not is to be made by deliberating over the document
alone, with no regard to extrinsic evidences.36 As per the rule, the mere act of reducing an
agreement to a writing is an implicit intention of parties to make the writing an enforceable
agreement.
As per this approach, the law does not recognize intent unless it is memorialized in the writing
that embodied the agreement, either explicitly or impliedly. This approach to the parol evidence
rule does not emphasize parties’ actual intentions, but only the intentions expressed within the
writing, and implies that the parties’ intent lies solely on the written instrument.
Although applied in certain instances, courts have generally refused the Williston rule since it
fails in regard to giving consideration to the possibility of erroneous drafting of the contract,
which does not reflect the true intentions of the parties. If a judgment is impugned by following
these ideas, it may lead to the enforcement of an agreement that was not originally intended by
either party.
Corbin Rule
Corbin opposes the parole evidence rule, since he believes that parties have a dynamic
relationship amongst themselves and one can never be sure when there is a complete expression
of the agreement. Due to this, Corbin believes that law should recognize negotiations that may
modify, explain, or supplement the contract.37
34
Id 239.
35
Housekeeper Publishing Co. v. Swift, 38 C. C. A. 187, 97 Fed. 290 (8th Cir. 1899).
36
11 Samuel Williston, Williston on Contracts (Lawyers Co-operative Pub. Co.) (1979).
37
Arthur L. Corbin, The Parol Evidence Rule, 53 The Yale Law Journal, 603 (1944).
76
However, Corbin’s approach is not suitable for business contracts. Rather, a Willistonian
approach would be more appropriate to promote efficiency and maximizing joint gains of a
transaction since it dictates a simpler dispute resolution. The Corbin approach also dampens the
need for parties to be careful and precise while drafting a written contract, since it permits parties
to significantly alter it through judicial processes. If enforced, the rule would instead promote
litigation and in turn decrease the level of efficiency in private, as well as commercial
transactions.
Determination of ambiguity
The courts in the United States follow a general rule to first determine what evidences a party
wishes to offer to show the meaning of a specific term belonging to the contract. Courts
generally allow extrinsic evidence as to what a term means only after establishing that the term
in question is rather ambiguous. The question that arises is whether a court should allow extrinsic
evidence to determine that a certain term is ambiguous? Just the way courts allow extrinsic
evidence to determine whether an agreement is integrated in parol evidence rule analysis, a court
hears the evidence to prove that a term is ambiguous after excusing the jury.38 In case the term is
not ambiguous, the court does not admit the evidence. If otherwise, the court permits the jury to
hear the evidence and determine the meaning of the term, because determination of the meaning
of a term is a matter of fact.39
In Weston v. Montana State Highway Commission, the plaintiff contended that “supervisor” in
the written agreement actually meant “non-supervisor.”40 After considering the evidence
regarding the ambiguity, the court stated:
“[t]he language in the contract is clear and unambiguous. We find no need for further
interpretation and/or parole [sic] evidence.”
American law recognizes to forms of ambiguities that may arise from a contract, patent
ambiguity and latent ambiguity, wherein the former refers to uncertainties that may be visible on
the face of the document,41 while the latter refers to uncertainties that require deliberation for
identification.42 To resolve such doubts, the United States resorts to the reasoning by Lord
Bacon, who asserted that some patent ambiguities allow a resort to extrinsic evidence, and others
do not.
As per him, an ambiguity is patent when a simple perusal of the document indicates that
additions must be made before one can correctly interpret its meaning; and then the rule is
38
Scott Burnham, The Parol Evidence Rule: Don 't Be Afraid of the Dark, 55 Montana Law Review (1994),
https://scholarship.law.umt.edu/mlr/vol55/iss1/4 (last visited Sep 23, 2020) See E. Allan Farnsworth, Contracts
(Aspen Law & Business 2) (1999).
39
Holman v. Hansen, 237 Mont. 198, 773 P.2d 1200 (1989).
40
186 Mont. 46, 48, 606 P.2d 150, 151 (1980).
41
Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999).
42
Turner Const. Co., Inc. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004); Metric Constructors, 169 F.3d at
751.
77
inflexible that no evidence to supply the deficiency can be admitted. The admission of such
evidence in many cases would be, as Lord Bacon said, “to make that pass without deed, which
the law appointed shall not pass but by deed.”43
Uniform Commercial Code
The UCC is a comprehensive set of laws that aim to govern all commercial transactions in the.
Though it is not federally legislated, it does have a uniform recognition from states. Since the
code has been adopted by all the states, parties feel free to enter commercial contracts with
confidence that the contract shall be enforced in the same way by the courts of every American
jurisdiction. § 2-202, titled “Parol or Extrinsic Evidence”, reads:
“Terms with respect to which the confirmatory memoranda of the parties agree or which
are otherwise set forth in a writing intended by the parties as a final expression of
their agreement with respect to such terms as are included therein may not be
contradicted by evidence of any prior agreement or of a contemporaneous oral agreement
but may be explained or supplemented
a) by course of dealing or usage of trade (Section 1-205) or by course of
performance (Section 2 208); and
b) by evidence of consistent additional terms unless the court finds the writing to
have been intended also as a complete and exclusive statement of the terms of
the agreement.”
The Code has somewhat modified the doctrine of parol evidence rule, since its version is
intended to liberalize the rule, and to reject the conventional idea that a written document
amounts to complete integration. Based on the provision, extrinsic evidence cannot contradict a
writing that parties consider as the final expression of their agreement. A writing intended as a
final document is only to be treated as a partially integrated document. Only a final as well as
complete writing is regarded a completely integrated writing, thus, cannot be contradicted
through extrinsic evidence. Further, official comments in the code command courts to permit
external evidence in order to determine whether the writing was agreed upon as a partial or
complete integration of the parties’ agreement. Only thereafter can any such evidence be
excluded.
Lex Mercatoria
Lex Mercatoriais a Latin maxim that refers to a set of international rules established by
merchants to regulate trade. It consists of international commercial usages and customs along
with treaties, conventions, and rules recognized universally by merchants and traders.44 The
43
David N. Hernandez, Sternloff v. Hughes: Vagueness as Affecting the Admissibility of Extrinsic Evidence in Deed
Descriptions, 9 N.M. L. Rev. 383 (1979).
44
Friedrich Juenger, The Lex Mercatoria and Private International Law, 60 Louisiana Law Review (2000).
78
United Nations Convention on the Contracts for the International Sale of Goods, CISG, is the
most prominent codified law in the domain of international mercantile law. Although certain
principles of the UNIDROIT are applicable, but majority of the law on parol evidence rule
comes from the CISG.
1980 Vienna Convention – Convention on Contracts for the International Sale of Goods
Article 8 and 11 of the treaty talk about the inclusion of extrinsic evidences in the interpretation
of written contracts. As per Article 8,45 the subjective intent of the parties is to be the primary
interpretative source, but only insofar as the other party knew or could not have been unaware
what that intent was. When this approach is insufficient, the Article dictates that an objective
test, the understanding of a reasonable person, shall be applied. Article 8 may be termed as an
adoption of the modern objective theory of contract formation, since it emphasizes solely on
subjective intent insofar as that intent was clearly communicated to the other party. This
approach similar to the patterns established in American contract jurisprudence.46
Further, Article 8(3) directs courts to give due consideration to all relevant evidences in the
interpretation process under (1) and (2). This is a clear rejection of any limits to what types of
evidence a party can argue along the lines of in this regard.
Article 11 of the treaty reads: “a contract of sale need not be concluded in or evidenced by
writing and is not subject to any other requirement as to form. It may be proved by any means,
including witnesses.”47 As a generalized postulate, the first part of the text of Article 11 alludes
consensualism, as per which there is no requirement of specific formal requirement to form
contracts.48 The second part explains procedural consequences related to the evidence accepted
to prove a contract regulated by the CISG in the civil law tradition.
It is pertinent to note that Article 11 shall remain inapplicable in case the country in question, at
the time of ratification made a declaration conforming to Article 96 of the CISG,49 which states:
“A Contracting State whose legislation requires contracts of sale to be concluded in or
evidenced by writing may at any time make a declaration in accordance with article 12
that any provision of article 11, article 29, or Part II of this Convention, that allows a
contract of sale or its modification or termination by agreement or any offer, acceptance,
or other indication of intention to be made in any form other than in writing, does not
apply where any party has his place of business in that State.”
45
Article 8, United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, S.
TREATY Doc. No. 98-99 (1983), 1489 U.N.T.S. 3.
46
John Murray, An Essay on the Formation of Contracts and Related Matters Under the United Nations Convention
on Contracts for the International Sale of Goods, 8 J.L. & Com. 11, 45 (1988).
47
Article 11, Id. 44.
48
JerziRajski, Article 11 in Commentary on the International Sales Law: The 1980 Vienna Sales Convention, 122
(Michael J. Bonell& C.M. Bianca eds., 1987).
49
Article 46, Id. 44.
79
Article 8(3) when read with Article 11 establishes a general principle that written evidence of
contracts does not enjoy a special status substantively, other than having inherent practical
evidentiary advantages. Accordingly, the CISG does not effectuate a presumption that a writing
constitutes an integration, either partial or complete. Of course, written contracts may be held in
higher regard, relative to oral contracts, pursuant to the applicable rules of evidence, which,
according to the general international private law principle, will be governed by the law of the
forum, not the CISG. However, the CISG, as a substantive contract law, does not make any such
stipulation.
Coming to the applicability of the treaty, American courts have often rejected the incorporation
of the parol evidence rule within the scope of CISG. In MCC - Marble Ceramic Center,50 despite
the buyer having consented to the printed conditions on the printed form, the court admitted
previous negotiations and the subjective intent of the parties. The tribunal stated that parties
wishing to avoid parol evidence problems may include a merger clause in their contract. As per
the court, such mergers or integration clauses would exclude evidence outside the contract. The
court came to the conclusion that is a correct application of the general rule stated in Article 8(3)
of CISG, which excuses a tribunal deciding a case under the CISG from any domestic parol
evidence rule or other kind of restrictions of other means of proof different from a writing. This
approach has been seen as a “benchmark against which the progress of future U.S. decisions on
the Convention can be measured.”51
UNIDROIT Principles of International Commercial Contracts
Unlike the CISG, the Principles of UNIDROIT do not constitute a legislation or a statute, due to
which they lack binding upon parties per se. Rather, they come into question only when parties
expressly incorporate them into the contract in order to bring ease in case of judicial
intervention.52 As per Article 2.1.17 of the Principles:
“A contract in writing which contains a clause indicating that the writing completely
embodies the terms on which the parties have agreed cannot be contradicted or
supplemented by evidence of prior statements or agreements. However, such statements
or agreements may be used to interpret the writing.”53
In the absence of such a merger clause, Article 1.2 of the Principles permits any evidences that
can be proved by any means.54 This equalizes the parol evidence rule by admitting evidence
subsequent to the written document, but only for interpretational purposes. It is also consistent
50
8 MCC - Marble Ceramic Ctr., Inc. v. Ceramica Nuova D'Agostino S.p.A., 144 F.3d 1384 (11th Cir. 1998)
51
Harry Flechtner, The U.N. Sales Convention (CISG) and MCC - Marble Ceramic Center, Inc. v. Ceramica Nuova
D'Agostino, S.p.A.: The Eleventh Circuit Weighs in on Interpretation, Subjective Intent, Procedural Limits to the
Convention's Scope, and the Parol Evidence Rule, 18 J.L. & COM. 259, 287 (1999), See also Bruno Zeller, The
Parol Evidence Rule and the CISG - A Comparative Analysis, 36 COMP. & INT’L L.J. S. AIR. 308 (2003).
52
UNIDROIT Principles of International Commercial Contracts (2004).
53
Id. art. 2.1.17.
54
Id. art. 1.2.
80
with the principle stated in Article 4.3 (a),55 which permits preliminary negotiations between the
parties to be considered when applying the main rules of interpretation. As per this idea, first of
all, the common intention of the parties or subjective test must be considered. Second, in case the
intention is unascertainable, the standard of a reasonable man may be used.
Conclusion
From its inception in 1604 in the Countess of Rutland's Case,56 to its international codification in
the CISG, parol evidence rule has undergone a significant transformation by reducing its extent
of application by the admission of numerous exceptions. After summarizing the forms adopted
by this common law principle and its equivalents in other legal systems, along with a recognizing
a lack of regard for this rule in modern lex mercatoria, it is reasonable to conclude that there
remains only a tame hybrid, which is applied domestically in some jurisdictions, of the rule as it
was originally conceived. Its application has considerably reduced and narrowed its scope when
compared with the solutions shaped by other international principles.
In England, where the parol evidence rules originated, a large number of exceptions which are
allowed by the judiciary invite inquiry into whether the rule has survived. Only in the United
States does the rule continue to be domestically considered, but only within the boundaries
identified in this paper. Certainly, the concept of a written agreement today is different from the
one when the rule was in full application.
Conventionally, a written document refers to a writing in paper. However today, electronic
documents and transactions are terms of common use, and expressions like electronic commerce,
electronic records, or e-mails are part of our lives. The extraordinary changes in
communications, the common use of computers in the legal profession, the advances of
technology, and the easy global access to sources of information are alternatives that help to
show the parties' true intentions more accurately.
55
Id. art. 4.3.
56
(1604) 77 Eng. Rep. 89 (KB), See Lawrence Solan, The Written Contract as Safe Harbor for Dishonest Conduct,
77 Chicago-Kent Law Review 87, 91 (2001).
81
PANOPTICAL SURVEILLANCE OF THE STATE IN A DYSTOPIAN FUTURE- A

THREAT TO PRIVACY
Sagnik Sarkar1&Akarsh Kumar2
If you want to keep a secret, you must also hide it from yourself3
Abstract
An individual develops in a true sense when she has the chance to express its opinion freely. And
one can only be able to freely express when one can freely think without any interference. This is
the foundational necessity of privacy. But with the implementation of a surveillance mechanism,
the idea of privacy takes a backseat. The basic principle of surveillance is that if one does no
wrong then one should not have anything to hide. But it is often forgotten that result of any
surveillance mechanism undoubtedly creates a chilling Orwellian State in which free speech is
eroded to such an extent that a democratic society is turned into a panoptical prison. The
concern is that when any single entity holds large scale private information of its citizens, it
gives them huge control over their lives. In view of that, in this article, the authors have analyzed
different legislations and license agreements in the light of Puttaswamyjudgment and Shri
Krishna report to understand its legal validity. The paper also has analyzed the government’s
power to undertake different surveillance mechanism in the backdrop of national security. With
the emergence of Puttaswamy judgment and Shri Krishna report, the archaic laws and license
agreements should be amended as it gives unfettered and unhindered power to the government
for surveillance without any accountability. The current laws fall short in providing any sort of
restriction in the collection of personal data and in lieu of that government have a free hand in
collecting any data and retaining it for a number of years. Such laws are in violation of Krishna
report and fails to pass the test of constitutional validity. Such laws are not only dangerous for
the interest of the people but also turn a democratic society into a Policing State.
Introduction
Human beings are self-learning creatures. They thrive by learning different ideas and expressing
them in different forms. They need space for thinking, understanding and exploring their
intellectual capacities before expressing any ideas. ‘Privacy’ provides a safe cocoon where
individuals are free to express any idea irrespective of how ridiculous they sound. The problem
arises when the government begins to feel that an idea poses a threat to their establishment.
Governments often veil their insecurity of power under the garb of national security to give
legitimacy to different surveillance programmes. Though surveillance serves its purpose in
certain extreme situations, a line needs to be drawn on when the surveillance should be allowed
and what information can be procured. It is only when mass surveillance takes place not limiting
any particular type of data and without any legitimate purpose that it becomes problematic. The
concern is that when any single entity holds large scale private information of its citizens, it
1
BBA.LLB, 4th Year, National Law University. The author can be reached at [email protected]
2
BBA.LLB, 4th Year, National Law University. The author can be reached at [email protected]
3
GEORGE ORWELL, 1984 280 (2014).
82
gives them huge control over their lives. Surveillance programmes like these chillsfree speech,
association and leads to the unanimity of the graveyard.
The paper analyses the connection of surveillance programmes and their impact on the
individual’s privacy. The paper begins by analyzing the Puttaswamy judgment in light of the
Shri Krishna committee report to understand the ambit of privacy. Thereafter, it analyses
different telecom license agreements, various legal enactments, and also the recent Personal Data
Protection (PDP) bill from the perspective of Shri Krishna committee report (hereinafter Shri
Krishna report) and the Puttaswamy judgement, while determining its constitutional validity. The
paper finally concludes by giving certain recommendations to rectify the present situation and to
ensure that surveillance mechanisms are applied within reasonable standards.
I.I Panopticon analysis of Bentham

Bentham’s panoptical prison is a classical concept of surveillance where he proposed an idea of a
structure monitored by a central tower in such a way that all the inmates are governed at the
same time.4 The distinguishing aspect of this concept is that the inmates shall be aware that they
are being watched but they will not know when, as the structure shall be built in such a way that
only the guard will be able to see the inmate but not vice-versa. So inmates will be policing their
own behavior and thus creating order in the prison. This way, Bentham postulated the idea of a
panoptical country where all the citizens are in their best behavior even when no one is watching
them but at the same time creating an illusion that they are being watched.
The data-driven surveillance system tries to achieve the same wherein the government aims to
control all the aspects of data monitoring so that they can ensure national security. So the idea is
when people are aware that they are being monitored they will be cautioned and refrain from
freely expressing themselves. This shall create an environment where the government without
using any force would create fear in the mind of people and ensure order.
This phenomenon causes ‘chilling of speech and expression’ where individuals cannot express
themselves because ‘virtual censorship’ of the government causes hindrance in free speech and
expression (like Thought Police in 19845). The panoptical concept postulates a Police State
which monitors every aspect of its citizen under the veil of national security restricting the
enjoyment of the right to liberty and freedom.
I. Privacy analysis
The Puttaswamyjudgment6 played an important role in not only recognizing privacy as an
inseparable part of the right to life but also recognizing it as an important component of liberty,
freedom and dignity. Any endangerment to its existence would have a direct impact on the
4
Thomas McMullan, What Does The Panopticon Mean In The Age Of Digital Surveillance?, The Guardian (Jul. 23,
2015), https://www.theguardian.com/technology/2015/jul/23/panopticon-digital-surveillance-jeremy-bentham.
5
Orwell, supra note 1.
6
Justice K.S. Puttaswamy and Another v. Union of India and Others, AIR 2017 SC 416.
83
freedom of speech and expression. Moreover, the judgment needs to be analyzed in the light of
the Shri Krishna committee to understand the ambit of privacy.
Nariman J., in Puttaswamy, focusing on informational privacy stated that individuals ought to
have command over the circulation of their information/data and any use of such information
without their prior consent would amount to illegal dissemination of information. This principle
was later included in the Shri Krishna report as end-use limitation where the data shall be used
only for the purpose for which it has been given and any other usage has to be preceded by
taking prior consent of the individual.
The idea of consent was further cemented by Chandrachud J., through the objective theory of
privacy.7 It states that every person has a reasonable expectation of privacy when they undertake
a certain activity. So when any information is collected from password-protected content then it
is the reasonable expectation of the individual that the information will not be revealed to any
third party. This idea of consent was further stretched by Kaul J., where he focused on the
control over the disseminated information by the individual which was renamed as the “right to
correct” data in the recent PDP bill.8 It ensures that an individual has control over its data and
can decide whether to disseminate the information or not based on the purpose of ones’ usage.
The point to note here is that none of the judges differentiated between personal and non-
personal data nor did they give any leeway to investigative agencies to exclude the consent
element howsoever exigent the matter might be. The only exception the judgement makes
regarding any surveillance provision is the Strict Scrutiny test and the Proportionality principle.
The former states that when any enactment violates the fundamental right of any citizen then the
standard of judicial review shall be strict9 and the legislation shall be deemed valid only if it
follows two components:
a) Compelling State Interest: It states that legislation which violates fundamental rights can
be constitutionally valid only if it serves the purpose of Compelling State Interest.10 That
is, it serves the immediate emergency need of the State. It is based on the Utilitarian
principle where the urgent public need overrides the fulfilment of fundamental rights of
certain people provided that government could show that such law is based on actual
compelling State interest, and not on any illusionary ground.
b) Narrow Tailoring: As per this, legislatures have the right to make laws which restrict the
application of fundamental right provided such restrictions should be narrowly construed
rather than totally excluding its operation.11 The idea is that such law should be narrowly
7
Katz v. United States, 389 U.S. 347 (1967).
8
MINISTRY OF ELECTRONICS & IT, A FREE AND FAIR DIGITAL ECONOMY PROTECTING PRIVACY, EMPOWERING
INDIANS (2018).
9
Anuj Garg v. Hotel Association of India, AIR 2008 SC 663.
10
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
11
PUCL v. Union of India, AIR 1997 SC 568.
84
enacted so that it infringes the right in the narrowest manner possible to achieve the
intended purpose. But if such law excludes the implementation of fundamental right
entirely then it shall be held as unconstitutional.
The latter part consists of three principles that have been laid down by Chandrachud J., in the
Puttaswamy Judgement:
a) Legitimate State Aim: It is similar to the compelling State interest where any law which
intends to violate fundamental right should fulfil legitimate State aim, i.e. such laws
should intend to address the pressing needs of the State.
b) Proportionality: The aim of the law enacted should be proportional to the measures that it
ought to take to achieve its purpose. It means that aim of the legislation and means used
to attain it should have a reasonable nexus between both of them. The problem with
national security laws is that they are disproportionate in nature since they unreasonably
restrict the application of fundamental rights to achieve the intended purpose. Even in
such case, the court has held that the State must show that there exists a reasonable nexus
between the interest it seeks to secure and the means it uses to enforce it are
proportional.12
c) Law in Existence: It states that any infringement of fundamental rights should be based
on existing laws. The problem arises when the executive gives the order of surveillance
without having statutory backing, which makes the order illegal as such order is not
limited in its scope or application.
Kaul J., stated the principle of procedural guarantee against abuse, which deals with the
accountability principle where individual should have a forum to address their grievance due to
infringement of privacy. The problem arises when surveillance is done by the intelligence
agencies. There is no redressal mechanism if any breach of data takes place during monitoring or
analyzing of data by the agencies.
II. State surveillance

In the light of the 2008 Mumbai terrorist attack, India implemented many data sharing and
surveillance schemes to tackle terrorism. However, these schemes have given rise to various
controversies since their inception.13
III.I state surveillance system

There does not exist any unified policy on surveillance in India rather it has various agreements
in place which in combination gives shape to the surveillance policy of India.14 The latest one is
12
Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.
13
Maria Xynou, Security, Surveillance and Data Sharing Schemes and Bodies in India, THE CENTRE FOR INTERNET
& SOCIETY, https://cis-india.org/internet-governance/blog/security-surveillance-and-data-sharing.pdf. (last visited
Sept. 12, 2020).
85
the order from the Ministry of Home Affairs (MHA) which empowers 10 government agencies
to snoop on any computer.15
III.II license agreements

The initial point of surveillance for the government is the telecom sector. It is the only sector
which has connected 1.17 billion people into a common grid of network. So for the government
to initiate surveillance mechanism on any individual all they have to do is to order the telecom
companies to provide details of the call records of the person concerned. Further, to ensure that
telecom companies would be bound to follow the direction, the Department of
Telecommunications has drafted different agreements authorizing legal surveillance.
III.II.I Internet Service Provider agreement

The Internet Service Providers (ISP)16 is required to follow the clauses inscribed in the ISP
agreement which were enacted on the lines of the Indian Telegraph Act 1885, 17 the Indian
Wireless Telegraph Act 1933,18 and the TRAI Act 1997.19 The present analysis shall be restricted
to part-VI of the agreement which deals with the security condition that each ISP has to follow to
get government authorization to enter into the telecom sector.
According to clause 32.120, no bulk encryption equipment should be employed in the network. It
means that government is disallowing encryptions of any type of data which significantly
decreases the security of data. So the problem is that it is inconsistent with the recommendations
of the Shri Krishna committee21 which has suggested data encryption and pseudonymisation for
increasing the safety of data. Also, since the agreement has not created any classification
between personal and non-personal data, so sweeping prohibition on encryption of data without
recognizing the differential status of each type of data is again a violation of Shri Krishan
committee report.
As per clause 33.422 the licensee shall, without any delay will provide to government agencies all
the tracing facilities to trace malicious calls, messages for detection of crime and maintaining the
national security. This clause gives a blanket power to the government to demand personal
sensitive data without any regards to privacy concern. This violates the proportionality,
reasonableness and consent principles as mentioned in the Shri Krishna report.23
14
Policy Paper on Surveillance in India, THE CENTRE FOR INTERNET AND SOCIETY, https://cis-india.org/internet-
governance/blog/policy-paper-on-surveillance-in-india. (last visited Sept. 15, 2020).
15
MINISTRY OF HOME AFFAIRS, ORDER, S.O 6227 (E).
16
DEPARTMENT OF TELECOMMUNICATIONS, LICENCE AGREEMENT FOR PROVISION OF INTERNET SERVICES.
17
Indian Telegraph Act, 1885, No. 13, Acts of Parliament, 1885.
18
Indian Wireless Telegraph Act, 1933, No. 17, Acts of Parliament, 1933.
19
Telecom Regulatory Authority of India Act, 1997, No.24, Acts of Parliament, 1997.
20
License Agreement, supra note 14, at 29.
21
Krishna Report, supra note 6.
22
23
86
Furthermore, the clause 34.424 states that government shall specify the equipment that are to be
used for interception purposes and clause 34.625 states that the designated government agencies
will have the authority to monitor the telecommunication traffic for monitoring simultaneous
calls at every network setup point. So by reading clause 33.426 34.4,27 and 34.628 together, it
suggests that government will not only have control over the data, but it shall have the control
over the different ways in which data is collected and analyzed.
Furthermore, the question arises how far government shall snoop into the personal lives of its
citizens and who shall be made accountable in case of breach of personal sensitive data of the
individuals during such interception? This has been partly answered in clause 32.2 29 which states
that it is the duty of telecom operator to ensure privacy and safeguard the data of the consumers.
But it does not mention the government’s accountability in the event of a breach of data during
interception. In such cases, the individual suffers without anyone being made accountable for
such breach and due to such back-door surveillance activity of the government, it becomes
difficult to claim any remedy as well.
Moreover, reading clause 34.1230 with 34.2231 shows that intelligence authorities shall have
unfettered access to the password-protected subscriber list and government shall have access to
the database of the subscriber. It means that intelligence authorities shall have the phone
numbers of any individual which can be used to intercept the phone calls to listen to any
sensitive personal information under the veil of national security. Further, it directly fulfils the
requirement of continuous monitoring by the government as per clause 30.1.32 All the three
clauses directly contravene the principle of proportionality and necessity as it gives the
government the right to undertake surveillance programme of all the citizens without stating any
reason for such violation. It would mean that the government can monitor any citizens on any
ground as long as it is remotely related to national security.
III.II.II Cellular Mobile Telephone Service & Basic Telephone Services agreements
Apart from the above-mentioned agreement, telecom operators also have to comply with two
other license agreements; Cellular Mobile Telephone Service (CMTS)33 and Provision of Basic
Telephone Services (BTS)34 license agreements. The former deals with cellular mobile
connections while the latter with landline connections. Throughout both the agreements, there
24
25
Id.
26
27
Id.
28
Id.
29
“License Agreement, supra note 14, at 29.”
30
31
“License Agreement, supra note 14, at 34.”
32
33
MINISTRY OF COMMUNICATIONS, LICENCE AGREEMENT FOR PROVISION OF CELLULAR MOBILE TELEPHONE
SERVICE.
34
MINISTRY OF COMMUNICATIONS, LICENCE AGREEMENT FOR PROVISION OF BASIC TELEPHONE SERVICE.
87
are certain clauses which allow for unchecked surveillance by the government without any
regard to the privacy of the individual.
According to clause 23.135 of BTS agreement and clause 42.136 and 44.1137 of the CMTS
agreement no telecom operators shall employ bulk encryption equipment in its network. Even if
they are employed, it has to be after getting prior approval from the government. The clauses are
self-contradictory as both the agreements talk about the protection of the data of the individual38
and at the same time it prohibits encryption without the prior approval of the government.
Furthermore, as per clause 23.4 of BTS39 and clause 44.1 of CMTS,40 the government shall have
access to every transmission center and other necessary facilities for surveillance. Such a clause
allows for bulk surveillance without stating any reason for the same. It is a direct violation of
proportionality principles41 since bulk surveillance is highly disproportionate provision even in
national security cases.
III.III Legal Manipulation

Apart from the various license agreements government have further drafted different laws to
ensure two objectives, firstly, to have the ability to undertake surveillance without any hindrance
and secondly, to give legal recognition to such surveillance provisions.
III.III.I Information technology act 2008 and its allied rules

The section in question is section 6942 of the Act which states that the central government can
monitor the information from any computer if it is required for the security of the State. It further
mandates telecom operators to assists in the interception of the data. So, it can be said that the
main essence of the section is to monitor and regulate free speech by the system of ‘private
censorship’ through the intermediary of telecom providers.43
So to ensure smooth surveillance mechanism government came up with the IT Interception
Rules, 200944 which were enacted under section (u/s) 69 & 69B of the Act. The rules govern as
to who can issue directions regarding the interception, how that data be disclosed and till what
time such order will be valid.
35
Id. at 22.
36
C.M.T.S, supra note 31, at 30.
37
38
C.M.T.S, supra note 31, at 32 (Clause 44.4).
39
B.T.S, supra note 32, at 22.
40
41
42
Information Technology Act, 2008, No. 21, Acts of Parliament, 2000, sec 69.
43
Addison Litton, The State of Surveillance in India: The Central Monitoring System’s Chilling Effect on Self
Expression, 14 Wash. U. Global Stud. L. Rev. 799 (2015),
https://openscholarship.wustl.edu/law_globalstudies/vol14/iss4/17.
44
Information Technology (Procedure and Safeguard for interception, Monitoring and Decryption of Information)
Rules, 2009, G.S.R. 780 (E).
88
As per rule 2 (d),45 the order of interception shall be given by the Ministry of Home Affairs
(MHA). Furthermore, rule 446 provides that interception would include decryption of ‘any’
computer for the purpose mentioned u/s 69 (1) of the Act. On reading both the rules together, it
can be said that executive has the unilateral power to intercept any computer in its jurisdiction
and monitor any data which would serve the purpose as mentioned u/s 69(1) of the Act.
Though the presences of these rules are essential for the security of the country, such blanket
power can lead to misuse of the same. Furthermore, when viewed from the Puttaswamy angle47 it
does not fulfil the strict scrutiny test as it failed to fulfil both of its components; compelling State
interest and narrow tailoring policy.48
On analyzing the above rule it can be said that it fails to provide, firstly, what should constitute
as security of the State, and what should be its ambit, secondly, the above rules have not only
failed to narrow the application of fundamental rights but have restricted them altogether and
thirdly, it does not specify as to what type of information is to be collected (personal or non-
personal) since rule 2(1)49 failed to provide any differentiation and allowed government agencies
to intercept any information.
One of the safeguards given in the rule against the blatant misuse of such power is that such
interception order shall be sent to a review committee to analyze its usefulness.50 But the
problem with such a review mechanism is that it only addresses one side of the problem. When
any suggestion is sent to the review committee, they do not have any yardstick to measure as to
what shall constitute security of the State. Furthermore, the review committee constitutes
members of the executive. In that case, the committee becomes the mouthpiece of the authority
which has given the order.
Another rule to be examined is rule 6 of the IT Sensitive Personal Data Rules, 201151. The rule
states that personal and sensitive information collected by the body corporate should only be
disclosed for the investigation, prosecution and verification of identity.
On prima facie, it can be said that the rule is in contravention with the Puttaswamyjudgment52
since infringement can be allowed only when:-
a) There is a legitimate aim: This clause would be triggered when the collection of
information becomes difficult after using all the means available. Only then the
surveillance technique should be used. But the rule provides for usage of surveillance as
the only means of collecting information. The rule does not use surveillance as a
45
Rules, 2009, rule 2(d).
46
Rules, 2009, rule 4.
47
Puttaswamy Judgment, supra note 4.
48
49
Monitoring Rules, supra note 42.
50
Monitoring Rules, supra note 42.
51
IT Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011, G.S.R 313 (E).
52
89
necessity but as a regular investigative technique. That is, surveillance provisions should
be used as a means of last resort not as a means of convenience.
b) Law in existence: The rules are supposed to define the working mechanism of the parent
Act. But the grounds for collecting the personal sensitive data are not mentioned in the
parent Act (section 69). So, any collection of data which includes personal sensitive data
is outside the ambit of the rules since.
III.III.II Personal data protection bill 2019

As a consequence of the recent WhatsApp-Pegasus crisis,53 the government tabled the modified
version of the PDP bill54 with certain changes which had the following problems:
Firstly, as per the section 3(36) of the Bill,55 it defines the ambit of personal sensitive data and
includes data like financial record and sex life but interestingly it excluded ‘password’ from its
scope. The impact of that can be analyzed by reading section 91(2)56 of the bill. According to it,
the central government can order data fiduciary to give non-personal or anonymised data for
target delivery service. Now, since ‘password’ does not come under the definition of personal
sensitive data, it will come under the non-personal data. It means that the government can have
control over the password-protected content of the individual’s credentials under the garb of
target delivery services. Furthermore, the surveillance of those accounts become easy as the
necessity and the proportionate principle of Shri Krishna committee57 need not be followed since
those are applicable only at the time of collection of sensitive data.
Secondly, the bill used ambiguous terms like ‘national security’ and ‘public order’ to ensure the
sustainability of the surveillance environment. As per section 35 of the PDP bill, 58 government
agencies can obtain personal data for ‘national security’. This creates an environment of State
bullying, where because of lack of legislation defining what act constitutes as national security,
the State can obtain any information on any illusionary grounds.59 This violates the guidelines of
Puttaswamyjudgment, as for infringing privacy, there has to be:60
a) Law in existence: But there exists no law which can determine what situation shall be
considered as national security.
b) Procedural guarantee against the abuse: The bill does not provide any safeguard if any
data is breached when it is being monitored or analyzed by the intelligence agencies.
Thirdly, section 12 (f) of the bill deals with the collection of personal data without the consent of
the individual.61 It states that processing of the data (collection, storage and disclosure of data)62
53
Pegasus: India May Cite WhatsApp Breach to Store Data Locally, BBC NEWS, Nov. 28, 2019,
https://www.bbc.com/news/world-asia-india-50582728.
54
The Personal Data Protection Bill, 2019, Bill No. 373 (pending).
55
“The Personal Data Protection Bill, 2019, Bill No. 373, sec 3 (36).”
56
The Personal Data Protection Bill, 2019, Bill No. 373, sec 91 (2).
57
58
The Personal Data Protection Bill, 2019, Bill No. 373, sec 35.
59
Section III.II.I of this paper.
60
61
The Personal Data Protection Bill, 2019, Bill No. 373, sec 12(f).
62
The Personal Data Protection Bill, 2019, Bill No. 373, sec 2 (31).
90
can be done without consent in case of breakdown of ‘public order’. Since the ambit of public
order is not defined the government can name any protest or procession as a breakdown of public
order. This section should be read with section 7(2) of the PDP bill,63 as per which no notice of
the collection of personal data shall be given to an individual if it defeats the purpose of such
collection. Both these sections violate the privacy judgment64 and Shri Krishna report,65 as
firstly, it provides for surveillance of personal data without providing any clear, lawful and
specific purpose. Secondly, it is disproportionate to the aim it sought to achieve since it allows
for the accumulation of personal data without specifying the circumstances when such collection
has to be undertaken. Thirdly, the section did not specify what shall be the situation where the
supply of notice will not be a condition precedent for the collection of personal data.
III.III.III Telegraph Act and Indian Post Office Act

The Telegraph Act primarily governs the surveillance of telephone networks. The ambit of the
Act as given under section 3(1AA) of the Act covers all the communication devices. 66 Further,
the Indian Post Office Act, 1898 (hereinafter referred to as IPO Act) in section 26 states the
powers of the central and state government to intercept postal articles for surveillance purposes.
Section 5(2)67 of the Telegraph Act and section 26 (2)68 of IPO Act states two prerequisites for
interception of telegraphs and postal things: the first prerequisite talks about “occurrence of
public emergency” whereas the second one talks about “the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign states or public order or
for preventing incitement to the commission of an offence.” A major concern here is with the
term “public emergency” which has not been amended or clarified despite everyone being aware
of its vague expression.69 The same was contended once by the 38th Law Commission in 1968
whereas it contended the constitutionality of the expression. The Law Commission then said that
since the expression has not been used or defined in the Constitution of India thus it is not
reasonable to suspend fundamental rights based on it.70 It further questioned the very part of the
Act wherein the decision as to whether it is a public emergency or not was left to the discretion
of the concerned administrative officials. It thus suggested amending the interception part of it.
Though questions about the exact interpretation of the expression and its manipulations were
raised in both the houses, no new clarification was provided. Rather government claimed the
expression is “exactly those that are used in the Constitution.” However, the reality is that the
term has neither been defined nor used in the Indian Constitution.
63
“The Personal Data Protection Bill, 2019, Bill No. 373, sec 7(2).”
64
Puttaswamy Judgement, supra note 4.
65
66
“The Telegraph Act, 1885, No. 6, Acts of Parliament, 1885, sec 3(1AA).”
67
“The Telegraph Act, 1885, No. 13, Acts of Parliament, 1885, sec 5(2).”
68
The Indian Post Office Act, 1898, No. 6, Acts of Parliament, 1898, sec 26 (2).
69
“Bedavyasa Mohanty, The Constitutionality of Indian Surveillance Law: Public Emergency as a Condition
Precedent for Intercepting Communications, THE CENTRE FOR INTERNET & SOCIETYBLOG, (Jul. 4, 2014), https://cis-
india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law.”
70
LAW COMMISSION OF INDIA, 38thREPORT ONINDIAN POST OFFICE ACT, 1898 (1968).
91
In the case of Hukam Chand71, it was said by the court that the terms “public emergency” and
“any emergency” when used in the statutes give distinct meaning and cannot be equated merely
because of being similar to each other. It further said the two prerequisites that are “public
emergency and public safety” ought to “take color from each other.” Nonetheless, the
interpretation of the term public emergency in the terms of second pre-requisite was not done
elaborately by the court. Thus, these interpretations in bits and pieces have not actually helped in
bringing clarity to the expression.
The Acts say that the condition of “public emergency” should exist before deciding whether
there is any threat to public order and integrity and sovereignty of the State whereas the court’s
interpretation suggests that it is the other way around. Thus, it can be said that though pre-
requisite conditions are meted out for the application of section 26 and section 5 of IPO Act and
the Telegraph Act respectively, there is no specified objective standard given to test their
applicability.
Recommendations
Surveillance is an old concept but the means to undertake it are evolving every day and it is
necessary to have certain guidelines on its regulation so that both the national security and the
fundamental right are equally maintained.
I. Appointment of judicial members in the committee which is responsible for deciding the
initiation of surveillance order and also in the review committee which is responsible for
reviewing such orders.
II. In the PDP bill, a new section should be included which will deal with the accountability
of the government agencies in case any breach of data takes place while monitoring or
analysing personal or sensitive data.
III. The monitoring aspect of clause 34.6 of ISP agreement should come with the safety net
that the order should be reviewed by a committee headed by a retired judge to have
independent oversight. Furthermore, clause 2.2 (VIII) of ISP agreement needs to be
amended to allow for bulk encryption of data which exceeds 40 bits.
IV. Establishment of surveillance oversight committee with the objective is to oversee the
misuse of security solutions and whether transparency is maintained in the
telecommunications.
V. Terms like national security, public order should be defined in the PDP bill to limit their
application in surveillance mechanism. Furthermore, the PDP bill should widen the
definition of ‘sensitive data’ to encompass ‘password ‘under it. Further, the exclusion of
consent should always be preceded by giving a clear and specific reason for doing so.
VI. Individuals should have a redressal mechanism in the event any breach of data happens in
the investigation process by government agencies.
71
Hukam Chand v. Union of India, AIR 1976 SC 789.
92
VII. Section 80 of the IT Act should be amended to include the conditions under which police
can violate the privacy and undertake search and seizer and also the inclusion of necessity
of requiring a judicial warrant in such case.
VIII. All the surveillance/monitoring /interception of data order should have clear & specific
purpose and should follow the reasonable infringement criteria as prescribed in the
Puttaswamy judgement.
IX. It is recommended that the current Act and the PDP bill should prescribe a different
retention period for different types of data so that the right to be forgotten could be
efficiently be utilised. Furthermore, it should also prescribe the detailed procedure for the
destruction of data so that no abuse of data principals can take place.
X. Any collection of call details record under any Act or rules should be preceded by
permission from oversight committee detailing why such data are being collected and for
what use.
Conclusion
In analyzing the chequered history of this country, it can be safely assumed that surveillance
mechanism is an age-old concept which is still relevant in present times. It is important to
understand that the need for a surveillance system is more pertinent than ever since the global
threats have expanded their warfare bandwidth to infiltrate national borders. In times like these,
requirements of an efficient surveillance system to launch pre-emptive strike become important.
But to ensure the safety of the country, the government does not have to compromise on the
privacy of its citizen. When a monitoring system undertakes surveillance without any specific
purpose and intends to collect data in the pretext of national security it turns the democratic State
into a Policing State.
The problem is that when the government has such unlimited information on the lives of its
citizen, it tends to control their way of living to ensure conformity to their ideology. The whole
country becomes a huge panoptical prison where each individual undertakes self-policing to
ensure conformity as per the ideals of the government. It creates a paradox of freedom where
one is free to act as per the certain limited way or else, he calls for deterrence.
It is when the surveillance order is based on clear reasons, and in the process, if data is collected
those can be regarded as valid surveillance. It also goes without saying that when the government
invokes the national security clause, it is a burden on the government to prove that threat to
national security was real, not illusionary. Even in the General Data Protection Right, it has been
inscribed that the collection of information should be based on a legitimate only72.
At the same time, it is important that judges play an important role in the process to ensure that
the government does not turn the surveillance mechanism into State bullying to seek revenge
72
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC, (General Data Protection Regulation) 2016, O.J ( L 119/1), art 23 (2) (a).
93
against any of its whistle-blowers. It is often when the establishment of the government is
threatened that they retaliate through surveillance system under the thin veil of national security.
So the system which was supposed to be an instrument to fight terrorism becomes an instrument
to crush any resistance movement. It is important to take reference from the United States’
Foreign Intelligence Act, 1978. As per which, a warrant is essential to initiate any surveillance
activity in a situation where a person would have a reasonable expectation of privacy.73 This
protection is further extended to US persons residing outside the United States and that warrant
is a necessary condition before any surveillance takes place.74
Another aspect of the surveillance programme on which Indian laws are silent is the
accountability of the government agencies. All the surveillance laws focused on the telecom
operators’ liability in case any breach takes place of an individual’s data. But the laws are silent
in case the breach is made by the agencies during interception or analyzing of those data. The
problem arises when an individual suffers loss and does not have any forum to address the issue.
Reference has to be taken from the GDPR provision where the data controller has the
accountability to ensure that data of the individual are kept secured.75 Furthermore, once the
agencies are done with the data, there is no clause for the destruction of such data. To ensure the
privacy of its citizen GPDR has included the right to forgotten cause to ensure all the digital
footprints of usage of such data are erased so that carte blanche record of the individual can be
created.76 Though the recent PDP bill has added the right to be forgotten clause, it can be
enforced only against private entities. The clause is silent regarding its application on
government agencies.
Situations have started to change for the better with the landmark Puttaswamy judgment and the
recent PDP bill which despite having certain problems if rectified could serve as a shield to
unnecessary surveillance by the government. The focus must also be given to make necessary
amendments to the existing laws and license agreements to ensure that the privacy of every
individual are given the highest regard. Till such time comes it is important to remember- BIG
BROTHER IS WATCHING YOU!77
73
“Foreign Intelligence Surveillance Act of 1978 §101 (f) (1), 50 U.S.C. § 1801 (1978) (United States).”
74
“Foreign Intelligence Surveillance Act of 1978 §704(2), 50 U.S.C. § 1801 (1978) (United States).”
75
GDPR, supra note 70, art 5(1).
76
GDPR, supra note 70, art 17.
77
Orwell, supra note 1, at 3.
94
ASSESSING THE INDIAN DATA PROTECTION REGIME

SeemonSnigdha Jena1& Sukanya Subhadarshana2
Abstract
With the advancement in technology, the world is becoming a much smaller place to cohabit and
there is no doubt that this is the era of ‘disruptive innovations. With the divide between personal
and public sphere gradually becoming indistinct, India by drafting the Personal Data Protection
Bill, 2018 has not only given the ‘right of privacy’ the much needed recognition of a natural
right but has paved the way for a transform shift towards safeguarding personal data which is
an essential aspect of informational privacy, thus, keeping pace with the rapid digitalization the
country has ever experienced.
This research paper discusses why it is indispensable to protect private information which has
been identified as a facet of human autonomy and the role of the recently drafted data protection
law in doing so, why it is better to classify privacy as a right (rights-based approach) as opposed
to the harms-based approach adopted by our draftsmen by analyzing the Bill on the touchstone
of the test of proportionality and propose certain changes in the Bill with respect to the existing
provisions pertaining to data ownership, non-consensual processing of personal data and having
an independent Data Protection Authority so as to ensure that a robust mechanism is put in
place to combat the ever growing rate of cyber-crimes and the sanctity of privacy is always
safeguarded.
Keywords: Informational Privacy, Rights-based approach, Test of Proportionality, Data
Ownership, Non-consensual processing of personal data, Data Protection Authority.
Introduction: Recognition of Right to Privacy

The Indian Constitution3 safeguards the right to life and personal liberty of every individual and
over the years it’s ambit has been expanded to include almost every facet of human life which
was the outcome of exceptional judicial interpretations. It is ironical and at the same time
invokes burning curiosity as to what made the Hon’ble Apex Court ignore the importance of the
most sacrosanct right of man (i.e. Right to Privacy) for so many years despite the fact that there
have been cases in the past in which this issue has been raised.4
1
A 5th Year BA LLB student of KIIT School of Law (deemed to be University). The author can be reached at
[email protected];.
2 th
5 Year, BA LLB student of KIIT School of Law (deemed to be University); . The author can be reached at
[email protected].
3
INDIAN CONST. art. 21.
4
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
95
The took hesitant steps to try and acknowledge the right to privacy in the case of Govind v. State
of Madhya Pradesh5, giving right to privacy the status of fundamental right but also stated that
this right is not absolute and can be compromised in the greater interest of public good. From
1975 onwards there was a growing concern to afford this right the protection it deserves and
many more cases followed in which the Court held that privacy was indeed the bedrock of
“Right to life and personal Liberty” under the Constitution.6
The recognition of this right has gone through case-by-case development as we do see that the
apex court has realized that privacy is a natural right and it’s various aspects has been vastly
discussed in Puttaswamy7judgment which shall forever be regarded as a historic moment in
Indian legal regime as it paved the way for India to realize that it should have a robust law for
protection of data in place to ensure protection for informational privacy 8, as the entire hue and
cry around the AADHAR scheme was founded on the fear that the state is getting transformed
into a surveillance state and concerns were raised that there can be no guarantee that a future
dystopian government might not try and use the personal information of the people for the
fulfillment of their needs and according to their whims and fancies. The Apex Court rejected the
notion that as “right to privacy” is not expressly guaranteed by the Constitution it requires a
constitutional amendment to confer this right on the people and held that right to privacy is the
foundation of all other rights guaranteed in the Indian Constitution9, thus placing the right to
privacy at the highest pedestal.
Importance of Ensuring Informational Privacy
Right to privacy has three aspects- (i) right to bodily autonomy (ii) informational privacy10 and
(iii) privacy of choice.11 Informational privacy has become a matter of concern over the last few
decades considering how small the world has become because of the revolutionary development
in the arena of information technology with internet emerging to be a bonafide ‘disruptive
technology’ as it has substantially disrupted the traditional modes of communication like the
postal service and telephone system.
There is an old adage that ‘Knowledge is Power’ and there is no denial of the fact that being
privy to the personal information of people does brings with it an immense control over the
5
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
6
R Rajagopal v. State of Tamil Nadu,AIR 1995 SC 264.
7
Justice KS Puttaswammy v. State of Kerela,W.P. (C) 494 OF 2012.
8 Informational Privacy in India: An Emerging Discourse, THE CENTRE FOR INTERNET AND SOCIETY,
https://cis-india.org/internet-governance/news/informational-privacy-in-india-an-emerging-discourse (last visited
Jul. 18, 09: 20 A.M)
9
INDIAN CONST. Part III.
10
Supra note 8.
11
Supra note 7, at 202 (Justice DY Chandrachud).
96
personal lives of people as we seldom realize that the information all of us provide when we
avail services online can be used against us as our personal information can act as a key to assess
the private aspects of our lives which we choose not to disclose like a person’s food habits,
friend circle, sexual orientation and etc.
Two of the reasons why right to privacy is of prime importance is- firstly, every individual has
the right to not disclose matters of his private life which he does not wants to disclose and
secondly to reserve the right of deciding for oneself (i.e. making personal choices about one’s
life without any interference even by way of influence).12
It was unimaginable a few years earlier that information collected could also have huge impact
on our professional lives as well as have political ramifications. Atul Kochhar, a London based
Michelin starred chef was fired from his job when he made a controversial tweet labelling
follower of Islam as terrorists.13 A high school teacher was fired when she posted on the
Facebook that she was not interested in continuing with her job as the residents of the district
where the school is situated are arrogant.14
The whole world went into a frenzy when Facebook confessed that Cambridge Analytica (a third
party application) had accessed the personal information of almost eighty-seven million
Facebook users and used it for helping the current American President Donald Trump win the
presidential elections and amidst all the hue and cry the founder of Facebook, Mark Zukerburg
responded with a articulately written response15 about Facebook’s commitment to privacy
protection of users which did raise concerns worldwide about lack of reasonable security
practices being employed by internet intermediaries and considering the safe harbor regime
prevalent in India16 which affords complete immunity to passive intermediaries which only act as
a platform for information exchange, one cannot help but feel that is unsurprising that
intermediaries can escape liability. Twitter, in what can be called a great move, has declared that
it would no longer carry political advertisements considering that social media platforms do have
the ability to micro-target people and political affiliations of a person can be inferred from the
personal information he has provided and this can have an adverse impact on the democracy.
12
Christina P. Moniodis, Moving from Nixon to NASA: Privacy’s Second Strand- A Right to Informational Privacy,
15 YALE JOURNAL OF LAW AND TECHNOLOGY139 (2012),
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1
080&context=yjolt (last visited July 27, 2020).
13
Michael Safi, Michelin-starred chef Atul Kochhar sacked over anti-Islam tweet, THE GUARDIAN,
https://www.theguardian.com/business/2018/jun/13/dubai-hotel-sacks-chef-atul-kochhar-anti-islam-tweet, (last
visited Jun. 13, 2018, 7:07 PM)
14
Patricia Sanchez Abril et al., Blurred Boundaries : Social Media Privacy and the Twenty-First Century Employee,
49 AMERICAN BUSINESS LAW JOURNAL63 (2012),
file:///C:/Users/nEW%20u/Downloads/SSRN-id2004438%20(2).pdf (last visited July 27, 2020).
15
Julia Carrie Wong, The Cambridge Analytical scandal changed the world- but it didn’t change Facebook, THE
GUARDIAN (Mar. 18, 2019, 10:30 AM),
https://www.theguardian.com/technology/2019/mar/17/the-cambridge-analytica-scandal-changed-the-world-but-it-
didnt-change-facebook (last visited July 27, 2020).
16
INFORMATION TECHNOLOGY (AMENDMENT) ACT, §79 (2009).
97
Information posted/ provided online has the ability to be perpetually accessed and considering
the vast storage capacity of internet17 (even if the information is deleted still digital footprints
remains) and considering the fact that countries across the world have started the process of
profiling of personal data of people under the garb of protecting public interest and because of
increase in threats to world peace (cyber terrorism), the PuttaswammyJudgment is nothing short
of commendable as it recognizes the fact that every individual has the absolute right to determine
how his/her personal information (which he provides with utmost trust) shall be used as well as
have the final say in the matter as to what extent such information can be used for the purpose
for which such information was furnished in the first place.18
Doctrine of Proportionality
No constitutional right is absolute and there are two justifications for this- individual right can be
infringed in larger public interest and to keep up with the principle of rule of law. This dilemma
depicts the fundamental tension persisting between right and restrictions imposed on such right
to achieve a bigger aim. Democratic States have the primary duty to ensure that an individual is
afforded with the utmost right to be master of his own destiny and at the same time they have to
take steps to ensure that public security and popular interest of the general masses is safeguarded.
The right to privacy is no exception to this conflict as it imposes both affirmative and negative
obligations on the State (State has to ensure that it puts in place effective mechanisms as to
guarantee that the privacy of its citizens is protected and at the same time restricts the State from
intruding into the private lives of people).
This doctrine proposes that if any fundamental right is infringed then it should be for a legitimate
state purpose and the action infringing the right should be proportionate to the necessity to
interfere with the right and most importantly such action should be sanctioned by law. 19 This
doctrine has been incorporated in Article 19 of the Indian Constitution in the form of
‘Reasonable Restrictions’. The reasonable restrictions laid down can only be imposed by or
under authority of law and not through mere executive directions which lacks statutory binding20
and must be only related to the purposes so enumerated and legislature cannot restrict the
freedoms guaranteed by the constitution.21
The Apex Court has proposed the ‘Doctrine of Proportionality’22 in order to make sure that even
if the privacy rights of a person is violated it should be in accordance to a procedure established
17
Michael L Rustad&SannaKulevska, Reconceptualizing the Right to be Forgotten to Enable Transatlantic Data
Flow, 28 HAVARD JOURNAL OF LAW AND TECHNOLOGY 350,
https://jolt.law.harvard.edu/assets/articlePDFs/v28/28HarvJLTech349.pdf (last visited July 27, 2020).
18
OECD Guidelines on Protection of privacy and Transborder Flows of Personal Data,
https://www.oecd.org/internet/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata
.htm (last visited July 27, 2020).
19
Modern Dental College &Ors. v. State of MP &Ors., (2016) 7 SCC 353.
20
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
21
INDIAN CONST. art 19.
22
Supra note 7, at 255.
98
by law. The action undertaken to infringe a person’s right privacy must be backed by law, must
be for a legitimate goal and the extent of interference must be consistent with the need to
interfere.23
Need for a Stringent Data Protection Law

The Information Technology Act, 2000 was the principal law which dealt with cybercrimes and
provided legal validity to electronic transactions but with iinternetrevolutionizing our lives in
ways unimaginable informational privacy has never been so critical. Section 43A of the IT Act,
2000 provides for the punishment for body corporates who fail to or neglect in implementing
reasonable security practices and procedures for protecting the sensitive personal data of the
general public. Under section 69 of the IT Act, any person soauthorisezed by the Government or
any of its officer, if the Government us satisfied that it is necessary in the interest of sovereignty
or integrity of India or defence of India or security of the State etc. it may direct any of it’s
agency to intercept, monitor or decrypt any information so generated, transmitted, received or
stored in any computer resource.section 72A of the IT Act, 2000 makes disclosure of
information, knowingly and intentionally, without the consent of the person concerned and in
breach of the lawful contract is made punishable. The Information Technology (Reasonable
Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011
only deals with the protection of “Sensitive personal data of a person”, which consists of
information relating to- Passwords;Financial information such as details pertaining to bank
account or credit card or debit card; Biometric Information etc. One of the most criticized aspects
of the Rules is that it does not affords protection to electronic communication records of
individual (Emails, chat logs and internet search histories are susceptible to misuse).
Even though the IT Act, 2000 provided for certain safeguards with respect to protection of data
but the need to have a separate Personal Data Protection Law was acute as compared to the IT
Act, 2000 the clear focus of the Personal Data protection Bill, 2019 is to empower the citizens by
giving them considerably more control over their data, thus, changing the way we handle our
personal data.24 One of the biggest improvements of the PDP Bill, 2019 over IT Act is data has
been classified into Personal, Sensitive and Critical Personal data25 (IT Act only dealt with
protection of Sensitive Personal Data). The ambit of Sensitive Personal Data under the Personal
Data Protection Bill, 2019 is not exhaustive (as the Central Government can in consultation with
the Data Protection Authority include additional categories other than those already specified as
Sensitive Personal Data)26, whereas in IT Act the term ‘sensitive personal data’ has not been
23
Supra note 7.
24
Personal Data Protection Bill, 2019: What Indian citizens can expect,
https://www.pwc.in/assets/pdfs/consulting/cyber-security/data-privacy/personal-data-protection-bill-2019-what-
indian-citizens-can-expect.pdf (last visited November 11, 2020).
25
THE PERSONAL DATA PROTECTION BILL, §33 (2019).
26
Id. at §3(36).
99
clearly defined leaving it completely upto the Central Government to determine which data can
be categorized as sensitive in consultation with professional bodies.27Paul Ohm has proposed a
four- factor test to discern as to whether information is sensitive or not- (a) one of the most
essential factor is the connection between the information and potential harm it poses to the data
subject (b) if the legislature categorizes information as having sufficiently high probability of
harm (c) whether the information laws recognize a class of people who can suffer harm because
of because of breach of duty of confidentiality (d) Adequacy of information laws which would
cater to the interests of all sections of society and not only safeguard the majoritarian interests.28
This test has formed the basis for categorization of the personal data as ‘sensitive’ in the Personal
Data Protection Bill. The PDP Bill, 2019 makes it mandatory for the Data protection Authority
(DPA) to mention the “reasonable purposes’ for which it undertakes to process the personal data
of a person but does not provides for separate and independent grounds for processing of
sensitive personal data (the grounds for processing of non-sensitive and sensitive personal data)
are the same.
In this age of technology danger to informational privacy is not limited to an Orwellian state but
also fellow human beings who can access information for their own selfish interests which
mandates the enacting of a data protection legislation. The PDP Bill is modelled more or less
after the European General Data Protection Regulation29 as the European notion about protection
of data regime is also centred around the necessity to uphold human dignity. The existing Indian
legal framework does recognize the liability of body corporate for failure to protect sensitive
personal data of people.30
The Supreme Court opined that formulation of a data protection regime should be undertaken by
the State which has to achieve this daunting task by balancing the opposing notions of protecting
privacy of individuals and legitimate concerns of the state is valued.31 In pursuance of the
Supreme Court’s directions a committee was established by the Union Government chaired by
Shri Justice BN Srikrishna. The bill defines ‘data principal’ as any natural person to whom the
personal data is related to32 and ‘data fiduciary’ as any person (including juristic persons and the
State) who are involved in processing of the personal data.33
27
Id. at §15.
28
Paul Ohm, “Sensitive Information”, 88 Southern California Law Review 1125 (2015),
available at:https://southerncalifornialawreview.com/wp-content/uploads/2018/01/88_1125.pdf (last visited
November 11, 2020).
29
Chris Lawley, India’s new data protection law is modelled after EU’s GDP, DILIGENT(Apr. 16,
2019),https://diligent.com/au/indias-new-data-protection-law-modelled-after-eus-gdpr/ accessed (last visited July
27, 2020).
30
Supra note 16, at §43A.
31
Supra note 7, at252.
32
Supra note 25, at §3(14).
33
Id. at§3(13).
100
It is inspiring and comforting to finally have a data protection law which seeks to balance the
boom of digitalization and right of privacy of people but one cannot fail to ignore the obvious
loopholes in the proposed bill which if passed would lead to serious ramifications for everyone
as the bill negates the very premise of right to privacy which has been guaranteed to limit
government interference in the inner recesses of man’s life. Since the day the Bill has been
released there has been extensive debate and consultation, with the Joint Parliamentary
Committee on the Bill even inviting comments from various stakeholders.34
The Bill has been severely criticized as it fails to comply with the doctrine of proportionality
proposed by Supreme Court and the safeguards proposed by Justice BN Srikrishna Committee.
The most condemned provision incorporated in the Bill is Section 35 which provides a blanket
protection to all or any agency of the government to be exempted from liability under this Act
which is the biggest mockery of the Puttaswamyjudgment and completely eliminates the
accountability of the Government and even Justice BN Srikrishna has vehemently opposed this
move of the government and has expressed his concerns about India gradually transforming into
an ‘orwellian state’.
Another disturbing aspect of the bill is that it advocates a harm-based approach rather than a
rights based approach in catering to the grievances of the data principals. The definition of
‘harm’ includes many instances which are open to multiple interpretations like loss of reputation
and any discriminatory treatment.35 The harm based grievance redressal mechanism is quite
subjective and abstract in nature considering the fact that harm caused is not always quantifiable
and the burden of proof on the data principal to show the kind of harm he/she has gone through
because of the breach of data can have adverse impact on the frequency and number of data
breaches being reported and is too much to ask of the data principal. The definition lacks clarity
and gives wide discretionary powers to the data fiduciary to decide the matter upon intimation of
the breach of privacy. The data fiduciaries are afforded unbridled powers as they are empowered
to inform the Data Protection Authority36 about a breach of personal data which is likely to cause
harm to the data principal, thus not affording any opportunity to the data principal to specify the
kind of harm he or she is anticipating.
Comparative Analysis
A democratic government’s most unique feature is that it affords utmost freedom to people in
every aspect of their lives and is not controlling and authoritative as dictatorship but with the
separation between the real and the virtual world growing blurry who is to ensure that the
welfare state which acts as a guardian of the society safeguarding the interests of the people
34
MeghaMandavia, Parliamentary panel invites comments on personal protection bill, THE ECONOMIC TIMES,
https://economictimes.indiatimes.com/news/politics-and-nation/parliamentary-panel-invites-comments-on-personal-
data-protection-bill/articleshow/73589688.cms?from=mdr (last updated Jan. 24, 2020).
35
36
Id. at §25.
101
would not try to regulate the human behaviour by accessing personal information of people and
compelling online gatekeepers (intermediaries) to assist it in ensuring so.
The fact that the Bill is yet to receive President’s assent and the bill is still being discussed at
length by the Joint Parliamentary Committee goes to show that the law on data protection lacks
certainty and there is an urgent need for a careful analysis of the impact of this law on the Indian
economy, the problems faced by the Data Principals and the significance of this law in tackling
the issues.37
The Personal Data Protection Bill, 2019 is largely inspired by the European Union General Data
Protection Regulation (EU GDPR) but lacks it’s seamlessness and coherence. Provides for
specified grounds for which personal data can be retained for longer time period38 whereas the
PDP Bill provides for personal data not to be retained beyond the period necessary to satisfy the
purpose for which it was processed.39 One of the debated aspects of the PDP Bill, 2019 is ‘Data
Localization’ so much so that the Joint Parliamentary Committee has in recent times opined tat
the biggest detriment to the passing of the data protection law is the issue of data localization as a
huge proportion of the data of data principals is being stored outside the territorial limits of
India.40 The PDP Bill, 201941 enables transfer of data outside but it is only for the sensitive
personal data that it mandates having a copy of the data kept in the country, which is a clear
transgression of the earlier version of the draft bill of 2018 42 which required copies to be kept in
the country both for personal and sensitive personal data. Data Localization is one of the areas
wherein the PDP Bill, 2019 and EU GDPR diverge from each other as EU GDPR does not
provides for data localization as such, only specifying that transfer of personal data shall be
allowed to a third country only if such country has ‘adequate level of protection’. 43 This is an
interesting and more effective approach as organizations operating in EU and elsewhere have to
ensure compliance with EU GDPR and their own country’s specific data protection law. Without
having to make a stringent data localization law, European Union has managed to ensure that the
data protection laws of every country is amenable to the GDPR.
With respect to processing of sensitive personal data of children the Personal Data Protection
Bill is much more stringent as compared to EU GDPR as the Personal Data Protection Bill sets
the age threshold for being considered a child higher (In India a child means a person who has
not completed 18 years of age)44 than the GDPR permits. The Personal Data protection Bill’s
37
Anirudh Burman, Will a GDPR-Style Data Protection Law Work for India?, CARNEGIE INDIA,
https://carnegieendowment.org/files/4-17-19_Burman_India_GDPR.pdf (last visited November 11, 2020).
38
EUROPEAN UNION GENERAL DATA PROTECTION REGULATION, Art. 5(1)(e) (2018).
39
Supra note 25, §9(1).
40
Shubham Singh, PDP Bill’s Ambit Likely To Include Data Localisation, Digitisation, Inc 42,
https://inc42.com/buzz/pdp-bills-ambit-likely-to-include-data-localisation-digitisation/ (last visited November 11,
2020).
41
Supra note 25, §36.
42
THE PERSONAL DATA PROTECTION BILL, §40 (2018).
43
Supra note 38, Art. 45.
44
Id., s.2(8).
102
requirement to verify a child’s age before any processing imposes a significant new
requirement45not present in the EU GDPR.46 Unlike the EU GDPR, the Personal data protection
Bill requires obtaining the parental consent which applies to the processing of all children’s data,
not just where consent is the legal basis. It is a widely accepted fact that the data of children has
to subjected to greater protection for the simple fact that children are not fully aware of the
consequences their actions would entail. Section 23 (2) of the Personal Data Protection Bill,
2019 incorporates that age verification and parental consent mechanisms have to be incorporated
by the Data Fiduciaries but this provision has invited severe criticism from all quarters on the
simple premise that children constitute a vast majority of internet users and one of the vehement
criticisms against the strict parental consent regime is that this would result in children resorting
to lying about their age.47
Canada’s Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA) was
considered to be ahead of its time when it was enacted but upon comparison with the EU-GDPR
it has narrower scope, as it has no extraterritorial application so to speak unless a substantial
connection is established between PIPEDA and the processing activities carried outside of
Canada.48 PIPEDA does not provides for right to be forgotten whereas EU-GDPR provides for
the data principal to request deletion of his personal data being processed by the controller. PDP
Bill, 2019 provides for both right of erasure and right to be forgotten but this aspect is criticized
as contrary to EU-GDPR adjudicating officers rather than the controller is given the
responsibility for determining the scope of the right to be forgotten.49
One of the most talked about components of the Brazilian Civil Rights Framework for the
Internet (also popularly referred to as the Brazilian Internet Act, 2014) is ‘net neutrality’ which
calls for internet users to be able to access all the content on the internet without any
discrimination.50 Incorporation of net neutrality has been in talks since quite a few years in India
with the Telecom Regulatory Authority establishing a committee for examining this issue in
detail.51 This issue is further fuelled by the fact that the government has suggested some
controversial amendments to be brought about to the IT Act, 2000 which includes requiring
intermediaries to use proactive technology to filter out unlawful content and breaking end-to-end
45
Id., s.16(2).
46
GDPR Consent,INTERSOFT CONSULTING,https://gdpr-info.eu/issues/consent/ (last visited November 11,
2020).
47
Milda Macenaite& Eleni Kosta, “Consent for processing children’s personal data in EU: following in US
footsteps?”, 26 Information and Communications Technology Law 146 (2017),
https://www.tandfonline.com/doi/full/10.1080/13600834.2017.1321096 (last visited November 11, 2020).
48
PIPEDA vs GDPR: The Key Differences, ENDPOINT PROTECTOR,
https://www.endpointprotector.com/blog/pipeda-vs-gdpr-the-key-differences/ (last visited November 11, 2020).
49
Supra note 25, §20(2).
50
Brazilian Internet Act, MOTTA FERNANDES ADVOGADOS,
http://mottafernandes.com.br/en/publicacoes/brazilian-internet-act/ (last visited November 11, 2020).
51
Net Neutrality Debate in India, PRS INDIA, https://www.prsindia.org/theprsblog/net-neutrality-debate-india (last
visited November 11, 2020).
103
encryption so that the origin of messages52 can be easily traced which would be a gross violation
of the right to privacy considering that it has been held to be sacrosanct as there is a growing fear
worldwide that information a person willingly shares online can be used to assess one’s
behavioral patterns, track one’s daily activities and basically be mutualized by a surveillance
state.
Recommendations Proposed
Data Ownership
Data ownership has been a major concern as it has been contended by many stakeholders
(including the Telecom Regularity Authority of India) that ownership of the personal data should
be vested on the individual to whom such data in question is related to and the entities involved
in processing, storing and retention of data are mere custodians and have no rights over the data.
The Bill should clearly specify that the data principal is the owner of the data as ownership
entails rights over the data. Ownership and rights have to be understood in conjugation as
ownership can be understood as a right which is available against everyone else and denotes the
relationship existing between a person and the right vested in him.
Non-consensual processing of Personal Data

The exception under Section 12(a) allowing processing of personal data without the consent of
the data principal is quite broad and goes against the test of proportionality. The need to specify
the grounds for non-consensual processing of data arises as it is not always possible to obtain
consent in all situations. India should adopt the ‘legitimate interest’ concept incorporated in
European Union General Data Protection Regulation (EU GDPR).
The Supreme Court while commenting on non-consensual processing of personal data has
specified the legitimate state aims for which it can be undertaken- crime investigation and
prevention, revenue protection, allocation of resources and national security.53 The term ‘service
or benefit’ remains under Section 12(a)(i) remains undefined. As Section 12 authorizes the
Aadhar scheme it is necessary to afford the definition assigned to ‘service’54 and ‘benefit’55 in
52
Seema Chisti, Govt. Moves to access and trace all ‘unlawful’ content online, INDIAN EXPRESS, Dec 24, 2018
(10:26 AM),
https://indianexpress.com/article/india/it-act-amendments-data-privacy-freedom-of-speech-fb-twitter-5506572/ (last
visited November 11, 2020).
53
Supra note 7.
54
THE AADHAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND
SERVICES) ACT, § 2(w) (2016).
55
Id.at §2(f).
104
the Aadhar Act to these terms in Section 12. There is no safeguards provided in Section 12 if
there is misuse of this discretionary power conferred on State.
‘State’ shall have the same meaning which is afforded to it under Article 12 of Indian
Constitution.56 The meaning afforded to ‘other authorities’57 in Article 12 would act as a check
and limit the kind of bodies who can process personal data without the consent of the data
principal. These entities also carry out certain private functions but it is necessary to ensure that
these bodies are allowed to exercise this wide power only in performance of a ‘public function’.
Even though private functions are excluded from the ambit still to allow non-consensual
processing of personal data for all public functions is far too unreasonable. The Justice BN
Srikrishna Committee report suggested that the ambiguities in Section 12 be removed and more
clarity is provided as to the entities who are engaged in performance of public functions (as
‘State’ under Article 12 has an expansive ambit because of the years of jurisprudence) and this
provision of non-consensual processing of personal data be modified in line with the EU GDPR.
Establishing an independent Data Protection Authority of India (DPAI)
Data Protection Authority of India(DPAI) should be a high-powered independent authority

responsible for data handling which requires that this body remains immune from external
influence. It has been recommended that the committee which shall select the Chairman and the
members of the DPA should consist of Chief Justice of India or his nominee who shall also be a
Supreme Court Judge, Cabinet Secretary (Union Government) and an expert who has experience
in matters of Information Technology, data protection and handling which seems apt as it is the
perfect balance between executive and expert opinion. The Bill in its current form is clearly
biased as the selection committee is an all-out executive forum.58 In addition to this there was
also a recommendation that the DPA should have a separate quasi-judicial adjudication wing
(keep the administrative and legal wings distinct) consisting of adjudication officers having legal
and technical expertise and experience which has not been incorporated in the Bill.59
For what it’s worth upon scrutinizing Section 86 of the Bill we observe that the Central
Government is empowered to give directions to the DPAI in the interest of security of India and
maintenance of public order etc. which is alarming as this power can be misused by the
56
57
Ajay Hassia v. Khalid Mujib, AIR 1981 SC 487.
58
59
Malavika Raghavan et al., Effective Enforcement of a Data Protection Regime (A Model for the Risk-based
Supervision using Responsive Regulatory Tools) (2019), DVARA RESEARCH WORKING PAPER SERIES WP-
2018-01,
https://www.dvara.com/research/wp-content/uploads/2019/12/Effective-Enforcement-of-a-Data-Protection-
Regime.pdf (last visited July 28, 2020).
105
executive. In the case of Commission v. Hungary60, it was held that data protection authority
should be immunized from external instructions with respect to performance of its functions for
ensuring transparency and independence of this authority. In yet another case it was held that the
independence of Data protection authority is of prime importance and cannot be compromised in
any way.61
The Bill also includes the provision for appointment of a data protection officer. 62 It is important
that independence is also afforded to data protection officers as well as they play an essential role
in data processing considering that the DPAI cannot cater to all the grievance of such a huge
user-base in India. The European Union General Data Protection Regulation affords an
independent position to the data protection officers63 which should be incorporated in the 2019
Bill. It is also recommended that there should be decentralization of powers as it is not feasible to
entrust a single authority with the utmost power with respect to monitoring and processing of
data of the entire nation. There should be data protection authorities set up in every State.
Conclusion
History is replete with examples where man’s liberty has been fettered in numerous ways- be it
slavery, colonialism and now it’s the threat of a surveillance state. It has never been so apparent
that man’s every choice (be it his food habits, the kind of work he chooses to do and even a
woman’s choice to bear or not to bear a child) is a part of the larger picture of privacy. It’s
intriguing that we had never thought of everything we do as falling in the domain of privacy until
now when we are confronted with the problem of having our personal data used to target us. We
are not to be blamed for living in oblivion for so long as who could have fathomed a decade
earlier that internet would soon emerge to be the most powerful weapon which would dictate our
everyday life.
The Bill is an epitome of the fact that the success of the society shall always depend on the
freedom afforded to people to lead their lives on their own terms. Freedom can be curbed for the
greater good but in today’s world where everything has become just a click away one has to be
careful in drawing informational boundaries because there is nothing more despicable than
intrusion in a person’s private life without his permission for which it inevitable to bring to
effectively restrict the State from turning into a draconian State. In the words of Justice Hansraj
Khanna the guarantee of life and personal liberty is not a gift of the Constitution and the State
cannot deprive a person of his life and personal liberty even in the absence of a Constitution.
60
Commission v. Hungary, C-286/12.
61
Maximilian Schrems v. Data Protection Commissioner, C-362/14.
62
Supra note 25, at §30.
63
Supra note 38, at art. 38.
106
DIGITAL LENDING AND FAIR USE: UNDERMINING THE SCOPE OF

EXHAUSTION DURING COVID-19
-Prabhdeep Kaur Malhotra1
Abstract
An unprecedented change brought by COVID-19 is changing the face of entire planet. The
explosive growth of the pandemic is much more than it was expected. The epidemiologic features
of the pandemic relevantly vary among countries. In response to this, various unprecedented
measures have been taken across nations for the containment of this disease. The Government of
India has implemented a strict quarantine policy against the Pandemic. The entire structure of
schooling and learning was the first to be affected by lockdown. In this regard, the response of
education sector is overwhelming as many countries have already started deploying different
modes of online learning. Academicians are encouraged to continue the process of learning
using online methods of communication or virtual live sessions which is presumed to have the
potential to accelerate the adoption of technology being a logical solution to resolve the
problem. It is quite evident that online method of teaching is leading to an unprecedented
transformation from traditional i.e. teacher-centric to the modern i.e. student-centric education.
This has resulted in Copyright issues in India as well as other countries posing a challenge to
the “fair use” provisions under their respective Copyright laws. While discussing the exceptions
under Fair Dealing for educational purposes, the relationship between the “physical” work and
“digital” work is conveniently forgotten. This has led to difficulty in interpreting the doctrine of
exhaustion when digital lending happens for educational purposes, as the present Copyright law
has not designed the exhaustion principles to deal with works of digital nature. The Objective of
this Paper is to analyse the fair dealing provisions for educational purposes under the Indian
Copyright Law. It aims to evaluate the applicability of Section 52 to the online modes of teaching
in the wake of COVID-19 scenario and scope of digital exhaustion under the existing copyright
regime. It articulates the advantages and disadvantages of digital exhaustion under the modern
Copyright law. The Paper concludes with suggestions and recommendations for better policy
considerations for future to ensure greater protection of Copyright law in India.
KEYWORDS: Fair Use, Copyright, Fair Dealing, COVID-19, Exhaustion.
I.Introduction
The explosive growth of COVID-19 is rampantly extending its reach throughout the globe and is
erupting in new hotspots worldwide. The disease has spread throughout the world leading the
World Health Organization (WHO) to consider it a pandemic. Stakeholders from various sectors
have been working hard to ensure the proper adherence to Government guidelines for the
containment of this disease. The response of education sector is overwhelming in this regard as
many countries have already started deploying online different modes of learning. Online
education has the potential to accelerate the adoption of technology. The United Nations
Educational, Scientific and Cultural Organization (UNESCO) has also figured out certain
1
PhD Scholar, University School of Law and Legal Studies (GGSIPU), Dwarka. He can be reached at
[email protected].
107
distance learning solutions to help parents, teachers, schools and school administrators to ensure
student learning and provide social care and interaction during the periods of school closure.
In India, the Right to education is a cherished Constitutional value. The history of introducing
the education as a fundamental right can be traced back to the recommendation made by Indian
Education Commission (Kothari Commission) which reviewed the status of education in India.
Thereafter, the National Policy on Education was formed,2 whereas first official recommendation
for introducing education as a fundamental right was made by Acharya Ramamurti Committee in
1990.3
With the decision of Supreme Court of India in Mohini Jain v. State of Karnataka,4 a great legal
breakthrough was achieved. It was observed that “Right to life is the compendious expression for
all those rights which the Courts must enforce because they are basic to the dignified enjoyment
of life. It extends to the full range of conduct which the individual is free to pursue. The right to
education flows directly from the right to life. The right to life under Article 21 and the dignity
of an individual cannot be assured unless it is accompanied by the right to education. The State
Government is under an obligation to make endeavor to provide educational facilities at all
levels to its citizens.”
Education, employment and economic empowerment are the programmes of the State by virtue
of articles 15(3), 46 and 39 of the constitution of India.5 The Supreme Court of India has
reiterated that Right to Education is a part of Article 21 6 of the Constitution which deals with
Right to Life and Personal Liberty. It is true that the right to education flows directly from right
to life and the same along with the dignity of an individual cannot be assured unless it is
supplemented by the right to education.7 However, in Unni Krishnan, J.P. v. State of Andhra
2
NiranjanaradhyaArunaKashyappage, The Fundamentals of the Fundamental Right to Education in India, 4 (2006),
http://www.pecuc.org/Upload/CenterOfRight/46.pdf, National Policy on Education, 1968 was the first official
document evidencing the Indian Government’s commitment towards school education. It re-affirmed the goal of
universalization of school education and aimed in achieving common school system but was criticised because of its
narrow scope. But Free and Compulsory Education remained the Directive Principle of State Policy.
3
Id.
4
1992 AIR 1858; In this case, constitutionality of capitation fee was challenged. This fee was required to be paid by
people who wanted to enter private medical school and were not allotted ‘government seats. These seats were
reserved by the Government of India for the members of communities to overcome the historic discrimination in
furtherance of the Constitution of India. The fees was Rs. 2,000 for ‘government seats, Rs. 25,000 for ‘non-
government seats within the state’ and Rs. 60,000 for ‘non-government seats outside the state’. The main issues
involved were; Whether there is a right to education under the Constitution of India? Whether charging capitation
fees violates the right to equality under Article 14 of the Constitution of India.
5
RameshbhaiDabhaiNaika v. State Of Gujarat, decided on 18 January, 2012; MurlidharDayandeoKesekar v.
Vishwanath Pandu Barde, 1995 supp. (2) SCC 549); R. Chandevarappa v. State of Karnataka (1995) 6 SCC 309
6
Indian Const. art. 21 - No person shall be deprived of his life or personal liberty except according to procedure
established by law.
7
Maria Grace Rural Middle School v. The Government of Tamil Nadu, decided on 4 November, 2006; M. Veera
Siva Nagi Reddy v. Osmania University, 1997 (4) ALT 243, the right to education is implicit in the right to life and
personal liberty guaranteed under Article 21; Maharshi Mahesh Jogi v. State of M.P., decided on 3 July, 2013, a
provision which puts embargo in one’s right to seek for education, will be violative of Article 14 and 21 of the
Constitution of India and will be violative of Article 14 and 21 of the Constitution of India; Society for Unaided
108
Pradesh,8 it was held that “the right to education which is implicit in the right to life and personal
liberty guaranteed by Article 21 must be construed in the fight of the directive principles in Part
IV of the Constitution. So far as the right to education is concerned, there are several articles in
Part IV which expressly speak of it.”
Article 21A9 of the Constitution that deals with Right to Free and Compulsory Education was
inserted by way of 86th Amendment in the year 2002. The enactment of this provision mandated
the robust involvement of the Supreme Court than was the case with Mohini Jain or Unni
Krishnan.10 Article 21A is referred as the positive right to have an elementary education
irrespective of caste, creed, race, sex or religion.11 Right of Children to Free and Compulsory
Education Act also known as Right to Education Act was introduced in 2009 which deals with
the Right of children to free and compulsory education till the completion of elementary
education in a neighborhood school.12 This Act is a milestone as it intends to provide full time
elementary education to every child in a formal school.13 As per the constitutional mandate
provided under articles 41,14 4515 and 46,16 as well as various judgments of the Apex Court, the
Government of India has taken several steps to eradicate illiteracy, improvement the quality of
education and make children back to school who left the schools for one or the other reasons.
Part I of the Paper gives introductory background on the impact of pandemic across the world. It
briefs about the Constitutional guarantee of Right to Education in India and the role of judiciary
in the enforcement of this Right. It finds mention under Fundamental Rights as well as Directive
Principles of State Policy.
Part II of the Paper highlights present provisions under the Indian Copyright Act, 1957 related to
Fair Dealing for Educational Purposes. These include research or private study, publication of
short passage for instructional use, reproduction of any work by teacher and pupil during course
Private Schools of Rajasthan v. Union of India (2012) 6 SCC 1; Bhartiya SevaSamaj Trust v. Yogeshbhai Ambalal
Patel (2012) 9 SCC; State of T.N. v. K. Shyam Sunder (2011) 8 SCC 737; Satimbla Sharma v. St. Paul's Sr. Sec.
School (2011) 13 SCC 760; Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1.
8
1993 AIR 2178; the Court modified the decision given in Mohini Jain’s case and decided that fundamental right to
education extends only to students up to the age of 14 years; St. Stephen's College v. University of Delhi, [1992] 1
SCC 558; In Re Kerala Education Bill, (1970) 2 SCC 417; Bandhua Mukti Morcha v. Union of India, 1984 AIR
802.
9
Indian Const. amend. LXXXVI, art. 21A.
10
Rishad Chowdhury, The Road Less Travelled: Article 21A and the Fundamental Right to Primary Education in
India, 24 INDIAN J. CONST. L. 34 (2010).
11
Vishal Sharma, Article 21A versus Article 30(1): Right to Education versus Minority Rights, 38 ILI LAW
REVIEW 40 (2016); every child has a right which cannot be waived off because doctrine of waiver does not apply
in case of fundamental rights.
12
The Right to Education Act, (June 15, 2020, 10:10 AM),http://in.one.un.org/page/the-right-to-education-act/.
13
Sanjay Sindhu, Fundamental Right to Education in India: An Overview, 92 GJISS94 (2014).
14
Indian Const. art. 41 - Right to work, to education and to public assistance in certain cases
15
Indian Const. art. 45 - Provision for free and compulsory education for children.
16
Indian Const. art. 46 - Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and
other weaker sections.
109
of instruction and Performance of work in the course of activities of an educational institution. It

also analysis the landmark decision of Delhi High Court in Rameshwari Photocopy Case.
Part III of the Paper deals with the effect of technological developments in the light of Fair
Dealing provisions. It highlights the role of Digital Environment in imparting education
following a Paradigm shift from Classroom teaching to Online Teaching post COVID-19
outbreak. It reflects the revolution of communication process enabling the transmission of
information rapidly. Digitization has resulted in the modern ways of distributing works in
today’s scenario. The rapid growth of digitization and its effect on education has also been
discussed in this Part. As the Pandemic has already given a crucial time to the education sector in
India, this Part gives a detailed picture of the education system in India nowadays, beginning
from the inception of Constitutional regime recognizing the Right to education and international
provisions governing this Right.
Part IV of the Paper gives an insight of doctrine of exhaustion in India with respect to digital
media files. It gives a brief highlight of the kinds of exhaustion prevailing in the global market.
The provisions under the Indian Copyright Act, 1957 dealing with exhaustion have been
discussed under this Part along with judicial endeavor in this regard. It also discusses the
provisions under US and European Copyright laws dealing with the same issue. This Part gives
an analysis of the possible application of digital exhaustion keeping in mind the access to digital
files during COVID-19. Part V of the Paper concludes with highlighting the relevance of
education in COVID scenario establishing the linkage between copyright and learning. It
mentions the need for proper dissemination of material among teachers and students which is
important nowadays but with possible permissions and exemptions.
II.Fair Dealing for Educational Purposes: The Provisions

“Education is the power to think clearly, the power to act well in the world's work,
and the power to appreciate life.”
- Brigham Young
Education is the key to development. It is the basis for empowerment and expansion of every
nation. It has become a buzz word for the evolution and progress of every nation. According to
Nelson Mandela, “Education is the most powerful weapon that can be used to change the world.”
The success story of every person is directly or indirectly related to education. Thus, it can be
said that education is the supreme manifestation of human as well as nation’s growth and
progress. The concept of Education is not something new and has been part of the upliftment of
society from centuries. It has deep impact on the advancement of society.
110
Research or Private Study

Under the Indian Copyright Act, 1957 fair dealing with any work for the purpose of private or
personal use including research is permissible. But no such act is permissible in case of computer
programmes.17 Prior to 2012 Amendment, fair dealing was work specific for this purpose and
was limited to literary, dramatic, musical or artistic work not being a computer programme. 18
Under UK Copyright Law, fair dealing for the purpose of private study or research does not
infringe copyright in the work and such defense applies in case of literary, dramatic, musical and
artistic works and typographical formats of published works.19 The rationale for this defense is to
further the generation of new works and also that research and private study does not normally
interfere with incentives and rewards to creators and owners of copyrighted works. Thus, this
defense helps in maximizing the production of works.20 Research must be for non-commercial
purposes and private study does not include any study which is directly or indirectly for
commercial purpose.21 In Authors Guild, Inc. v. Google Inc.,22 it was held that it was fair use to
digitally copy the entire books from library collections to make them available for library
collections without permission or payment for the public to search electronically using a search
engine.23
If a publisher publishes a book for commercial exploitation and in doing so infringes a
Copyright, the defense under section 52(1)(a)(i) would not be available to such a publisher
17
The Copyright Act s. 52 (2012) - Certain acts not to be infringement of copyright - (1) The following acts shall
not constitute an infringement of copyright, namely: (a) a fair dealing with any work not being a computer
programme for the purposes of (i) private or personal use, including research.
18
The Copyright Act s. 52 (1957) - Certain acts not to be infringement of copyright - (1) The following acts shall
not constitute an infringement of copyright, namely: (a) a fair dealing with a literary, dramatic, musical or artistic
work not being a computer programme for the purposes of (i) Private use including research.
19
The Copyright, Designs and Patents Act s. 29 (1988).
20
Lionel Bently and Brad Sherman, Intellectual Property Law199 (1st ed. 2003).
21
Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases and Materials147 (1st ed. 2009); See also
Controller HMSO and Ordinance Survey v. Green Amps, [2017] EWHC 2755 (Ch), research for commercial
purposes cannot be described as fair dealing; Code Revision Comm. v. Public. Resource.Org, Inc., No. 1:15-cv-
02594-RWS (N.D. Ga. Mar. 23, 2017), while considering four factors, it was held that it is not fair use to make
available verbatim copy of state annotations free online without obtaining authorization from the copyright owner;
Am. Soc’y for Testing Materials v. Public.Resource.Org, Inc., No. 13-CV-01215-TSC (D. D.C. Feb. 2, 2017),
making available free online copies of privately developed standards without obtaining authorization from the
copyright owner does not amount to fair use.
22
No. 13-4829-cv (2d Cir. Oct. 16, 2015).
23
Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), in this case HDL (defendant) contained digital
copies of more than ten million works, “published over many centuries, written in a multitude of languages covering
almost every subject imaginable.” HathiTrust used the digital copies (1) to create a database for full-text searching
by the general public, (2) to permit library patrons with certified print disabilities to have access to full texts of
works, and (3) to allow libraries to replace their original copies that were lost, destroyed, or stolen where a
replacement was unobtainable at a fair price elsewhere. It was held that defendant’s uses of copyrighted material are
protected by fair use; Am. Inst. of Physics v. Schwegman, Lundberg &Woessner, P.A., No. 0:12-cv-00528-RHK-
JJK (D. Minn. July. 30, 2013), obtaining, storing, copying, and distributing copyrighted publications for use in the
patent application process, without a license or other permission, constitutes fair use; Nat’l Ctr. for Jewish Film v.
Riverside Films, L.L.C., No. 5:12-cv-00044-ODW (DTB) (C.D. Cal. Sept. 14, 2012), defendant’s use of clips from
plaintiff’s film were old and tentatively in the public domain, weighing in favor of fair use.
111
though the book published by him may be used or be meant for use in research or private study.24
In Syndicate Press of University of Cambridge v. Kasturi Lal & Sons,25 it was observed that:
“Copyright cannot be treated as a barrier against research and scholarship and
against all frontiers of human knowledge. It is true that the law should encourage
enterprise, research and scholarship. But such encouragement cannot come at the
cost of the right of an individual to protect against the misappropriation of what is
essentially a product of his intellect and ingenuity. The law encourages innovation
and improvement but not plagiarism. Copyright is a form of protection and not a
barrier against research and scholarship.”
Publication of Short Passages for Instructional Use
In a collection which is bonafide intended for instructional use and consists mainly of a material
in which no copyright subsists, it shall be lawful to include short passages from published
literary or dramatic works in which copyright subsists. This exception is not absolute because the
work so published should not have been published for such use. Also, the connection must be
described in its title and in any advertisements issued by or on behalf of the publisher intended
for instructional use. The inclusion of the passage must be accompanied by a sufficient
acknowledgement and the publisher is not allowed to use total of more than two passages from
the works of the same author in such collections during any given period of five years.26
Educational Purpose
According to section 52(i) of the Copyright Act, the Reproduction of any work by teacher and
Pupil in the course of instruction, or as a part of questions to be answered in an examination or in
answer to such questions shall constitute fair use.27 Indian Judiciary has played a very important
role in dealing with this exception.
Performance of work in the Course of Activities of an Educational Institution
The performance of literary, dramatic or musical work by the staff and students of the institution
or the cinematographic film for sound recording in the audience is limited to staff and students,
the parents and Guardians of the students and the person connected with the activities of the
Institution or the communication of cinematograph film or sound recording in the course of
activities of an education institution, to such an audience in the course of the activities of an
education institution.28
Rameshwari Photocopy Case: A Revisit
24
Rupendra Kashyap v. Jiwan Publishing House, 1996 (38) DRJ 81.
25
2006 (32) PTC 487 Del; Blackwood And Sons Ltd. v. A.N. Parasuraman, AIR 1959 Mad 410.
26
The Copyright Act s. 52(1)(h) (1957).
27
The Copyright Act s. 52(1)(i) (1957).
28
The Copyright Act s. 52(1)(j) (1957).
112
In The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy
Services,29(also known as DU Photocopy Case) a suit for Permanent injunction was instituted by
five plaintiff’s30 on 14th August, 2012 restraining Rameshwari Photocopy Service (which was
carrying on business from Delhi School of Economics (DSE), University of Delhi) from
infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and
distribution of plaintiff’s publications on a large scale and circulating the same and by sale of
unauthorised compilations of substantial extracts from the plaintiff’s publications by compiling
them into course packs/anthologies for sale. The Delhi High Court, on 16th September, 2016,
observed that the act of defendant’s amounted to fair dealing and did not constitute infringement
of plaintiff’s copyright because it was hit by the provisions of Section 52 of the Copyright Act,
1957 and that there was no commercial use since the copyrighted material was intended to be
used by the students for educational purpose which amounted to ‘fair use’.
With the decision of this case, a milestone is achieved in the copyright system by providing a
blanket exception for educational purposes. While deciding the case, the Court has rightly
focussed on the constitutional mandate providing Right to education both as a ‘Fundamental
Right’ and ‘Directive Principle of State Policy’. Articles 21 and 21A provide that Right to
education is a fundamental right of every citizen of India. Also, Articles 39(f) and 41 gives
opportunities and facilities to children to develop in a healthy manner, protected from
exploitation and right to education. It is thus, clear that Right to education is a cherished
constitutional value.
While discussing the provisions of Copyright Act, 1957, the Court emphasised on Section
52(1)(i) saying that the reproduction of any work by a teacher or a pupil in the course of
instruction or as a part of questions to be answered in an examination amounts to ‘fair dealing’.
The Court elaborated the term ‘in the course of instruction’ encompassing preparation of material
to be used in the course of instruction and copying of it to be used in course of instruction by
teacher provided that it is for the instruction, as held in Longman Group Ltd. v. Carrington
Technical Institute Board of Governor.31 Therefore, ‘in the course of instruction’ would include
the reproduction of any work during the process of imparting education which is not only limited
to the personal interface between a teacher and a pupil but it has to be understood as a process
which begins from teacher whereby he/she reads for himself/herself for imparting instructions or
the pupil approaches her in order to clarify the doubts or to get instructions. The Court further
determined that Copyright as a piece of welfare legislation aims at balancing the interest and
29
CS(OS) 2439/2012, decided on 16th September, 2016.
30
Oxford University Press, Cambridge University Press, United Kingdom (UK), Cambridge University Press India
Pvt. Ltd., Taylor & Francis Group, U.K. and, Taylor & Francis Books India Pvt. Ltd.
31
(1991) 2 NZLR 574; Md. Serajuddin v. The State of Orissa, (1975) 2 SCC 47, it was held that the use of word
‘instruction’ preceded with the words ‘in the course of’ implies not only a period of time during which the
movement is in progress but postulates a connected relation; Regional Director, E.S.I. Corporation v. Francis De
Costa, (1996) 6 SCC 1, it was held that the term ‘in the course of’ means during (in the course of time, as time goes
by), while doing.
113
rights of authors and owners keeping in view the competing interest of the society. Also, India
being a developing nation, only few is able to afford the cost of education, the Copyright Act
seeks to maintain a balance between the rights of copyright owners and rights of public to have
access to these works.32
It can be said that the Court has though tried to make a fair balance between the provisions
contained therein because “On one hand, India has a freedom to legislate for the utilization of
copyrighted works for teaching or educational purposes and on the other hand, it has agreed to
ensure that it is ‘justified’ by the purpose and do not unreasonably prejudice the interest of
author.” This decision has a far-reaching impact in a country like India where photocopying is
being done on a large scale. The judgment will have adverse effect on the interest of authors
because there will be no use of copyright law if photocopying will be allowed to happen on such
a massive scale.33 This judgment is consumer friendly and is going to have a long-term trickle-
down effect. The interest groups favouring the judgment argue that even if the profits of
publishing industry take a hit, a reduction in the private profits is of less importance than the
social advantages of disseminating the knowledge without any type of cost barriers.34
III. Fair Dealing in the Digital Environment: A Paradigm shift from Classroom teaching to
Online Teaching
“We need technology in every classroom and in every student and teacher’s hand,
because it is the pen and paper of our time, and it is the lens through which we
experience much of our world.”
- David Warlick
Technological developments have facilitated new forms of creative expressions, due to its
interactions with the cultural products. Whenever technology has provided a new method of use
of the cultural goods in the society, the copyright system has brought rules and regulations to
enable the effective distribution in the market place and ensure adequate returns to the creator.
Also, internet has revolutionized the communication process and compressibility of digitized
works has made transmission of files containing huge data easier and faster. Thus, it is effortless
for an individual with home equipment to deliver the copies of digitized works to individuals
anywhere in the world.35
32
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30; Ramniklal N. Bhutta v.
Maharashtra, (1997) 1 SCC 134.
33
Prabhdeep Kaur Malhotra, Case Commentary of the Chancellor, Masters and Scholars of the University of Oxford
v. Rameshwari Photocopy Services, 133 LEGAL MESSENGER 137 (2016).
34
Sampad Patnaik, Media may have Misjudged Copyright Verdict (June 15, 2020, 04:04 AM),
http://www.thehoot.org/media-watch/law-and-policy/media-may-have-misjudged-copyright-verdict-9671.
35
Zakir Thomas, Digital Technologies and Emerging Copyright Scenario 276 J INTELLEC PROP RIGHTS277,
278 (2003).
114
Although digitization has many advantages, but has also provided new ways of infringing
authors rights.36 Digital technology has brought in revolutionary changes in the administration
and management of copyright which has been made difficult by technological changes. It has
made reproduction and communication of works much easier and now the copies can be made
with ease and can be dispersed to millions of people in few seconds. This has led to materially
affecting the economic interests of owners.37
Fair use is an indeterminate area of copyright law that can become contentious when a new
technology changes how the creative works are used and produced. Consumers of copyrighted
works may believe that they can copy a creative material for personal use without the
authorization of copyright owner but such activity has not been recognized as fair use.38 Since,
the technology has emerged, it has challenged copyright’s traditional principles and it further
aggravates its subject matter of copyright. All the debates surrounding copyright are
‘technologized’ because technology actualizes the copyright by changing the game and changing
the space where previous modern copyright law existed.39
Technological solutions were found for the problems posed by new technologies.40 The
Government of India has introduced several amendments due to pressure from various quarters,
domestic as well as international, introducing the Copyright (Amendment) Act, 2012 by inserting
Sections 65A and 65B.41 Section 65A42 deals with the Protection of Technological Measures
along with the exceptions. It is a unique provision with reference to the liability of a person who
facilitates the creation of technology to circumvent under this section.43 This provision has been
introduced to provide protection of technological measures used by a copyright owner to protect
his rights on the copyrighted work. Any person, who, with the intention of infringing a right
36
Iftikhar Hussian Bhat, Technological Protection Measures under Copyright Law, 319 INTL. JOURNAL
EMERGING TRENDS TECH. IN COMP. SCIENCE 320 (2013); the benefits of digitization are endless. For
authors, digitization offers not only new paths of creating works but also the wide and efficient dissemination of
their works by digital transmission. For the computer, broadcasting, cable, satellite, and telecommunication
industries, there is potential for technical innovation and growth. And for virtually every member of the public,
digital transmission makes works, information, and services available online in forms much more useful than the
traditional analogue formats.
37
T.C. James, Indian Copyright Law and Digital Technologies, 423 J INTELLEC PROP RIGHTS 431 (2002); The
prominent Copyright issues in the digital area can be classified into three groups: a. Issues relating to the whole new
set of work, namely the computer programs, databases and multimedia works; b. Issues relating to reproduction,
distribution and communication to the public of a work through digital media; and c. Issues relating to management
and administration of copyright in the digital environment.
38
Douglas Holtz-Eakin, Copyright Issues in Digital Media, 1 (2004), https://www.cbo.gov/sites/default/files/108th-
congress-2003-2004/reports/08-09-copyright.pdf.
39
Danilo Mandic, Balance: Resolving the conundrum between copyright and technology?,8 (2011),
https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ipr_ge_11/wipo_ipr_ge_11_topic2-related2.pdf.
40
Supra note 36, this includes access control or copy control mechanisms such as encryption technology or water
making incorporated into works distributed over digital networks with a view to protecting them from illegal
exploitations.
41
Arathi Ashok, Technology Protection Measures and the Indian Copyright (Amendment) Act, 2012: A Comment
521 J INTELLEC PROP RIGHTS 524 (2012).
42
The Copyright Act s. 65A (2012).
43
Supranote 38 at 528.
115
circumvents the effective technological measure applied for protecting any of the right shall be
punished with the imprisonment which may extend to 2 years and may also be liable to fine.44
This provision has emanated from Article 1145 of WCT and Article 1846 of WPPT, with the
purpose to prevent possibility of higher rate of infringement in the digital media. Section 65B47
of the Act which deals with Protection of Rights Management Information provides punishment
for those who act in violation with this section. This provision confirms to the provision
enshrined in Article 1248 of WCT, 1971 and Article 1949 of WPPT, 1996.
In the United States, the Digital Millennium Copyright Act is a legislation enacted by the United
States Congress in 1988 in order to bring changes to the US Copyright Act so as to bring it in
compliance with the WIPO Copyright Treaty and WIPO Performances and Phonograms
Treaty.50
In the academic community, it is a routine course of some researchers and teachers who copy the
digital copyrighted content made available online without mentioning the relevant source but
since, technology is an answer to the technology, it has become feasible to check the plagiarized
content through various software’s. Free online software’s are also available to determine the
percentage of the copied amount. Thus, it is always advisable to the researchers working in
various fields, to acknowledge the source of the material.
The Government of India has initiated two programmes namely the SWAYAM Portal and
NPTEL. The SWAYAM Portal allows the students to pursue an online course on any subject,
like Indian History or Political Theory, from a university of their choice by registering on a
Government portal. This project has been named as SWAYAM i.e., Study Webs of Active-
learning for Young Aspiring Minds which is a web portal where Massive Open On-line Courses
(MOOCs) are available on all kinds of subjects which has been launched by the Human
Resource Development (HRD) Ministry.51 It was launched on 15th August, 2016 by Prime
44
Zakir Thomas, Overview of changes to the Indian Copyright Law, 324 J INTELLEC PROP RIGHTS 332 (2012).
45
WIPO Copyright Treaty art. 11 (1971) - Obligations concerning Technological Measures.
46
WIPO Performances and Phonograms Treaty art. 18 (1996) - Obligations concerning technological measures.
47
The Copyright Act s. 65B (2012) - Protection of Rights Management Information.
48
WIPO Copyright Treaty art. 12 (1971) - Obligations concerning Rights Management Information.
49
WIPO Performances and Phonograms Treaty art. 19 (1996) - Obligations concerning Rights Management
Information.
50
Indiana University, What is the Digital Millennium Copyright Act? (June 22, 2020, 11:10 AM),
https://kb.iu.edu/d/alik; Divided in to five “titles”, the DMCA is a complex act that addresses a number of issues that
are of concern to libraries. Among its many provision, the Act: imposes rules prohibiting, the circumvention of
technological protection measures, sets limitations on copyright infringement liability for online service providers
(OSPs), expands an existing exemption for making copies of computer programs, provides a significant updating of
the rules and procedures regarding archival preservation, mandates a study of distance education activities in
networked environments, mandates a study of the effects of anti-circumvention protection rules on the “first sale”
doctrine.
51
India Today, SWAYAM to launch online courses in various subjects: A substitute to classroom teaching? (June
12, 2020, 12:12 PM), http://indiatoday.intoday.in/education/story/swayam-project/1/579226.html.
116
Minister Narendra Modi.52 Similarly, NPTEL (National Programme of Technology enhanced

Learning) was launched by the Ministry of Human Resource and Development to enhance
quality of engineering education in the country by developing curriculum based video and web
courses.53
Education System in India post COVID-19

“The Educated differ from the uneducated as much as the living differs from the dead”
- Aristotle
The Pandemic has already given a crucial time to the education sector in India. The entire
structure of schooling and learning was the first to be affected by lockdown. As a result, online
teaching methods came into being which were followed by only a handful of private institutions
because others were not having access to e-learning solutions leading to the missed opportunities
for learning. Well, it is of no doubt that the online method of teaching is leading to an
unprecedented transformation from traditional i.e. teacher-centric to the modern i.e. student-
centric education.
The role of Government in this regard cannot be ignored as numerous measures have been taken
to help students continue their education during the pandemic to ensure that the effect of
pandemic is least on education. Various applications and e-learning platforms have been initiated
by the Government in the form of Shagun Online Junction which covers three e-learning
platforms namely the NROER (National Repository of Open Educational Resources), DIKHSA
Portal, e-Pathshala, etc. For delivering updated content to the students, SWAYAM is another
initiative of the Government without payment of any fee. There are several other platforms such
as Swayam Prabha, National Academic Depository (NAD), National Digital Library of India,
Virtual Labs etc.
Is the dealing “Fair” under Indian Copyright Law?

The legislative context of fair dealing in India is enshrined under Section 52 of the Indian
Copyright Act, 1957. The main objective of this provision is to make a balance between public
interest and private interest. The terms ‘fair dealing’ and ‘fair use’ are used simultaneously but
there is a difference in their meaning, application, and usage. Fair dealing restricts itself to the set
of enumerated facts, and in case if any act is committed in lieu of fair dealing but outside the
52
Economic Times, P M Narendra Modi to Launch Swayam, Massive Open Online Courses Platform on Aug 15,
(June 12, 2020, 12:15 PM),http://economictimes.indiatimes.com/industry/services/education/pm-narendra-modi-to-
launch-swayam-massive-open-online-courses-platform-on-aug-15/articleshow/53029959.cms.
53
National Programme on Technology Enhanced Learning (NPTEL), (June 12, 2020, 12:25
AM),http://nptel.iitg.ernet.in/.
117
scope of acts so listed, the same shall not be granted protection and would ultimately result in
infringement. Whereas, in case of Fair Use, more flexible approach is adopted as it is for the
Courts to decide whether the alleged act amounts to infringement or not on the basis of four
factors i.e. Purpose and character of work, nature of work, amount and substantiality of the
portion used and effect on market values of the original work. Under Fair Use, Courts are not
bound to restrict themselves to the list of factors and it is for them only to apply the correct
approach to make a fair balance between the rights of copyright authors and the public interest to
have access to copyrighted works.
Fair dealing is one of the defenses to the exclusive rights granted to the Copyright Owner under
the Act. The concept of ‘Fair Dealing’ is based on the British Copyright concept in comparison
to the doctrine of ‘fair use’ which is based on the American Copyright Law and is more flexible.
Fair Dealing permits the reproduction of copyrighted works, which would otherwise amount to
infringement.54 Fair Dealing is a question of fact and the same has to be determined on case to
case basis.55 However, if the purpose of the reproduction is not one of those enumerated in the
statute as exceptions, then the question of “fair dealing” would not arise.56
Under the Indian Copyright Act, Section 52 enumerates a list of exceptions which constitutes fair
dealing. The said provisions are in consonance with the constitutional obligations. The
justification of providing these defences is the public policy to ensure that fair use continues to
protect the freedom of expression.57 All rights must have limitations. It is enumerated in every
right in the Constitution of India, whether it is the freedom of speech or the freedom of
expression or the freedom to do trade the freedom to move anywhere in India or the freedom to
form associations.58 The primary objective of Section 52 is to protect the freedom of expression
under Article 19(1) of the Constitution of India, so that research, private study, criticism or
review or reporting of current events could be protected. Section 52 is not intended by
Parliament to negatively prescribe the infringement.59
Members of WTO are under an obligation to confirm with the exceptions as provided under the
TRIPS Agreement and Berne Convention. Article 13 of the TRIPS Agreement lays down the
three-step test i.e., special exception, it must not conflict with normal exploitation, it must not
54
Rishabh Saxena, Pracheta Kar, Is Fair Dealing Really Fair in India 40 RGNULSTUD LAW REVIEW 42 (2014).
55
ESPN Star Sports v. Global Broadcast News Ltd., (2008) 38 PTC 477 (Del.) (DB), Belloff v. Pressdram Limited,
(1973) 1 AER 241 at 263, where it was held that “fair dealing is a question of fact and of impression. One has to
consider whether the allegedly infringing material may amount to an illegitimate exploitation of the copyright
holder’s work.”
56
Blackwood And Sons Ltd. v. A.N. Parasuraman, AIR 1959 Mad 410.
57
Tekla Corporation v. Survo Ghosh, decided on 16 May, 2014.
58
Lok Sabha Debate as on 22 May, 2012, Discussion on the motion for consideration of the Copyright (Amendment)
Bill, 2012, (May 20, 2020, 10:20 AM), https://indiankanoon.org/doc/104277827/.
59
Wiley Eastern Ltd. v. Indian Institute Of Management, 61 (1996) DLT 281; Star India Pvt. Ltd. v. Piyush
Agarwal, decided on 13 March, 2013; Tata Press Limited v. Mahanagar Telephone-Nigam Limited, AIR 1995 SC
2438; Archana Nair v. Ministry Of Human Resource Development, decided on 21 September, 2016.
118
reasonably prejudice the legitimate interest of right holders.60 The Three-Step Test under Berne
Convention applies only to the right of reproduction and does not apply to other exclusive rights
such as public performance, broadcasting, public recitation, adaption or other rights which are
granted to the producers of cinematographic works.61
In recent times, the interaction between copyright and human rights is at the center of attention62
and for the same purpose the drafters of the UDHR and ICESCR recognized the claims of
authors, creators and inventors as human right.63 Article 15 of ICESCR64 which closely
resembles Article 27 of UDHR65 has three components dealing with right to culture, scientific
advancement, and intellectual property but it does not strictly mention the balance between
author’s rights and societal rights.66 Balance needs to be struck not only within the international
copyright regime but also within a ‘copyright’ whole.67
IV. The applicability of “Exhaustion” during COVID scenario: How it matters?

The expression “exhaustion of intellectual property rights” means that right holders lose the right
to control the resale of the protected goods. Once the relevant good is put on sale for the first
time by the intellectual property right (IPR) owner (directly by him or with his consent), he
cannot object to subsequent circulation of the product. Indeed, his rights are “exhausted”. This
principle is also known as “first-sale doctrine” and determines the moment when the right owner
loses the resale right on the protected goods.
The doctrine of exhaustion is categorized into domestic, regional and international exhaustion.
The concept of national exhaustion does not allow the IP owner to control the commercial
exploitation of goods put on the domestic market by the IP owner or with his consent. However,
the IP owner (or his authorized licensee) could still oppose the importation of original goods
marketed abroad based on the right of importation. The first sale of the IP protected product by
the IP owner or with his consent exhausts any IP rights over these given products not only
domestically, but within the whole region, and parallel imports within the region can no longer
be opposed based on the IP right. This doctrine is referred to as regional exhaustion. In case of
60
Ayush Sharma, Indian Perspective of Fair Dealing Under Copyright Law: Lex Lata or Lex Ferenda 523 J
INTELLEC PROP RIGHTS 523 (2009).
61
Eric J. Schwartz, An Overview of the International Treatment of Exceptions, 1 PIJIP Research Paper No. 2014-02
9 (2014).
62
Holyoak&Torremans, Intellectual Property Law267 (6th ed. 2010). In the United Kingdom The Human Rights Act
1988 and European Convention of Human Rights, Article 10.
63
Copyright Bulletin, Approaching Intellectual Property as a Human Right, 11 (2001), http://www.pijip-
impact.org/wp-content/uploads/2013/02/Approaching-Intellectual-Property-as-a-Human-Right.pdf.
64
International Covenant on Economic, Social and Cultural Rights art. 15 (1966).
65
Universal Declaration of Human Rights art. 27 (1948).
66
Supranote 62 at 84.
67
Saleh Al-Sharieh, Toward a Human Rights Method for Measuring International Copyright Law’s Compliance
with International Human Rights Law, (June 15, 2020, 1:10 PM),
http://www.utrechtjournal.org/articles/10.5334/ujiel.233/.
119
international exhaustion, the IP rights are exhausted once the product has been sold by the IP
owner or with his consent in any part of the world.
The overall purpose of exhaustion regimes is therefore to strike and maintain a balance between
a public interest (i.e. free movement of innovative goods) and the private interest of IPR owners
(i.e. remuneration for their creative and artistic efforts). Exhaustion is internationally regulated
by Article 6 of TRIPs Agreement. It states:
“For the purposes of dispute settlement under this Agreement, subject to the
provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the
issue of the exhaustion of intellectual property rights.”
Most international intellectual property agreements are silent about exhaustion. Article 6 of the
TRIPS agreement expressly pronounces this silence, effectively leaving the matter of exhaustion
to nation states. Also, Paragraph 5(d) Doha Declaration on the TRIPS Agreement and Public
Health states that “the effect of the provisions in the TRIPS Agreement that are relevant to the
exhaustion of intellectual property rights is to leave each Member free to establish its own
regime of exhaustion, without challenge […]”
India follows national exhaustion with respect to copyrighted works. This doctrine flows from
Section 14(a)(ii) of the Copyright Act, 1957, which states that the owner of a literary, dramatic
or musical work, not being a computer programme, has the exclusive right to issue copies of the
work to the public “not being copies already in circulation”. Amendments to the Act in 2012
extended the exhaustion doctrine to cinematographic films and sound recordings. Sections
14(d)(ii) and 14(e)(ii) now state that the right owner has the exclusive right to sell or give on
commercial rental or offer for sale or for such rental “any” copy of the work.
Also, section 51(b)(iv) states that a copyright is infringed when any person imports into India
any infringing copies of the work. An “infringing copy”, as defined in section 2(m) of the Act, in
the case of literary, dramatic, musical or artistic work is a “reproduction” of the work, in the case
of cinematographic film is a “copy of the film made on any medium by any means”, and in the
case of sound recording is “any other recording embodying the same sound recording, by any
means”.
In John Wiley v. Prabhat Chander,68 Delhi High Court held that exporting books whose sale and
distribution was subject to territorial restrictions amounts to copyright infringement. In this case,
the plaintiff published low-priced editions (LPEs) of a book with the rider that they were meant
for sale/resale only in India, Bangladesh, Nepal, Pakistan, Sri Lanka, Indonesia, Myanmar, the
Philippines and Vietnam. The defendants offered the LPEs online for sale worldwide. The
plaintiff contended that after first sale its rights in the LPEs were exhausted only in India and the
defendants had contravened of their distribution right under the Act.The Court held that in the
absence of an express provision for international exhaustion, regional exhaustion would apply
68
(2010) 170 DLT 701.
120
and affirmed that the right owner had the exclusive right to assign or license the work, which
could be limited by way of period or territory, and could be exclusive or non-exclusive.
Therefore, a copyright owner’s distribution right may be exhausted with respect to some
countries and not others.
Nowadays, social distancing is one of the main objective behind lockdown in any country which
has resulted in most of the activities taking place through online medium. Imparting education
through digital means has created issues in the copyright industry despite of having the
legislation on copyright in India. The position of Indian law on the questions related to the
expansion of fair dealing provisions on online education is unclear. The main reason behind
these issues is mainly because there is no clear demarcation between physical work and digital
work in case of online transmission and whether similar protection is granted to online classes as
in the case of classes obtained physically.
Going back to the past and applying the judgment of DU Photocopy Case (Supra) gives an idea
of extending the protection under Section 52(1)(i) to online classes given the reproduction is
meant solely for the purpose of imparting education. The video recording of classes has created a
dilemma in the copyright industry particularly under Section 52(1)(h) of the Copyright Act, 1957
which bars the usage of passages in a publication beyond two short passages from the protected
work as compared to Section 52(1)(i) which does not mention any such limitation on the number
of paragraphs.
Another important concern is the interpretation of Section 52(1)(n) which states “the storing of a
work in any medium by electronic means by a non-commercial public library, for preservation if
the library already possesses a non-digital copy of the work” amounts to fair dealing. In the
course of online education, the storage of content by the libraries and its subsequent sharing is
one of the significant challenge copyright holders are facing. As the provision does not clearly
mention any kind of permitted/ non-permitted communication or reproduction of work after
storage, it is difficult to extend the protection of this provision to the digital libraries sharing
work freely amongst people while imparting online education.
While technological arguments against allowing or denying digital exhaustion may become
increasingly weaker, the law around digital exhaustion remains uncertain. In addition, at the
moment it appears that the issue of digital exhaustion is not really part of any meaningful policy
discussion in India. In order to answer the question whether to have digital exhaustion or not,
there is a need to figure out possible interpretations of the related provisions.
One plausible justification for allowing digital exhaustion may be to ignore the difference
between tangible and intangible medium and focusing on the fair use defense for educational
purpose keeping in view of the interest of academicians. Moreover, looking into the reward
theory of copyright, which entitles the copyright holder to receive the reward only once i.e., on
the first sale of goods, it is appropriate that distribution of any copyrighted work after first
authorized sale can take place through physical or digital means. It implies that law should not
121
distinguish between digital work and physical work. Apart from ensuring free movement of
goods, enabling digital exhaustion especially during the pandemic will enable the free movement
of goods i.e. education and will also lead to non-discrimination amongst the buyers of physical
or digital works.
In the United States, 17 U.S.C. § 106(3) of the US Copyright Act, 1976 grants distribution right
to the copyright holder. The Section reads:
“Subject to sections 107 through 122, the owner of copyright under this title
has the exclusive rights to do and to authorize any of the following:
….
(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending……”
This right is explicitly subject to 17 U.S.C. § 109(a), which states that a person who owns a copy
that is “lawfully made under this title” may sell, gift, or otherwise dispose of the copy “without
the authority of the copyright owner.” The provision reads:
“17 U.S.C. § 109 Limitation on Exclusive Rights:……..(a) Notwithstanding
the provisions of section 106(3) , the owner of a particular copy or
phonorecord lawfully made under this title, or any person authorized by
such owner, is entitled, without the authority of the copyright owner, to sell
or otherwise dispose of the possession of that copy or phonorecord…….”
To help domestic industries fighting the importation of copyrighted works from other countries,
17 U.S.C. § 602. Section 602(a) makes importation of a copy of a copyrighted work into the U.S.
without the permission of the copyright holder an act of infringement under § 106(3). By its
statutory language, § 602(a), also called the importation provision, does not create a new act of
copyright infringement, but merely specifies an act that will be considered an act of infringement
under existing law. It reads as under:
“17 U.S.C. § 602: Infringing Importation or Exportation of copies or phonorecords-
(a) Infringing Importation or Exportation- (1) Importation- Importation into the
United States, without the authority of the owner of copyright under this title,
of copies or phonorecords of a work that have been acquired outside the United
States is an infringement of the exclusive right to
distribute copies or phonorecords under section 106, actionable under section
501….”
The exceptions to this provision include importation or exportation under the authority or for use
of the Government; importation or exportation for private use of the importer or exporter with no
more than one copy at one point of time; and importation by or for an organization for scholarly,
122
educational or religious purposes and not for private gain with respect to not more than one copy
for archival purposes and not more than five copies when it is for library lending.
The case between Capitol Records and ReDigi69 is the first one that brought to the spotlight the
possible application of the first sale doctrine to digital works in the US. In this case, it was held
that reselling downloaded music amounted to an infringement of the reproduction right of the
copyright owner and that the first sale principle applied only to “material items, like records, that
the copyright owner put into the stream of commerce”. No legislature or Court anywhere has
defined “digital exhaustion”. With the rapid growth of the copyright marketplace, statutory
clarifications of digital first sale rights are needed.
In the European Union, due to the different legal, economic and technological features of brick-
and-mortar and digital markets, the introduction of digital exhaustion has been challenged by
right holders, afraid of its impact on piracy rates and on the original market of the work, and
questioned by judges and scholars, who found it incompatible with the current architecture of EU
copyright law. In the United States, the most important provision of the Copyright Act for
educators is the Technology, Education and Copyright Harmonization Act (“TEACH Act”), 17
U.S.C. § 110, which was signed in 2002. Many educators may already be familiar with this Act
because it addresses both in-class and online use of educational materials.70
In Used Soft GmbH v. Oracle International Corp,71 the European Court of Justice discussed the
issue of digital exhaustion with respect to download-to-own software. The court held that under
certain circumstances, the exhaustion of the right to distribute under the EU Software Directive
may be applicable to both physical copies of the software (CD/DVD) and digital files
downloaded online with the consent of the copyright owner, therefore allowing sale of second-
hand software online. A German court of appeal, in a decision with regard to audio books in June
2014, held that under another EU directive, the doctrine of exhaustion did not apply to
download-to-own digital content.
In the United States and United Kingdom, the judiciary has been active in dealing with the
matters related to transfer of copyrighted work through digital means. However, “digital
exhaustion” is not really a topic of discussion in the Indian copyright regime. With the
incorporation of DRM provisions in the year 2012, it can be argued that the purpose of this
amendment goes against digital exhaustion. It goes against the spirit of exhaustion in the digital
market because the objective is to protect copyright in the digital media.
Another viewpoint leads to the conclusion that digital exhaustion results into piracy, harming the
incentives naturally. For instance, when X transfers a physical copy to Y, the possession is with
69
Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640.
70
Meaghan H. Kent and Danae Tinelli, COVID-19: Copyright Concerns in Online Classrooms (June 17, 2020,
12:07 AM), https://www.venable.com/insights/publications/2020/04/covid19-copyright-concerns-in-online-
classrooms.
71
C-128/11, July 3, 2012 (ECJ).
123
Y as per the doctrine of exhaustion. However, if both X and Y would like to read the book at the
same time, they will need to purchase another copy of the book. Even if digital exhaustion
applies here, X will not be legally allowed to “transfer” copy of the book to Y, while keeping one
copy for her own use.
Due to the existing conflict between digital exhaustion and the current legal regime encouraging
DRMs to reduce piracy, the exhaustion in the digital world would necessarily require limiting
and regulating the DRMs. Since, the implementation of DRMs are aimed to fight against piracy,
limiting their scope of protection would lead to piracy and discourage copyright owners from
using methods of digital distribution that are modern in nature.72
V. Conclusion
Education is regarded as one of the strong public interest73 in limiting the copyright protection.74
It is a limitation to encourage dissemination of works on the ground that they are in the public
interest.75 In case of educational institutions, the situation is different because the concept of fair
dealing, here, is governed by a complex web of provisions. There are a number of defenses that
relate to the copying carried out by schools and other educational institutions.76
Education is an area of activity for which the dissemination of material among teachers and
students is important but the permissions and exemptions are narrowly drawn. For instance,
copying of literary, dramatic, musical and artistic works in the course of instruction which is
non-commercial does not amount to infringement provided that the copying is done by person
giving or receiving instructions, not done by a reprographic process, accompanied by sufficient
acknowledgement. Also, if the work is made available to public, the copying must amount to fair
dealing. Other exemptions include copying sound recordings, films, or broadcasts by making
72
Guy A. Rub, Rebalancing Copyright Exhaustion (June 20, 2020, 10:30 AM),
https://law.emory.edu/elj/content/volume-64/issue-3/articles/rebalancing-copyright-exhaustion.html.
73
Supra note 61 at 265. If the allegedly infringing act is in public interest, this will provide a valid defence against
the alleged infringement. Public interest defence is based on court’s inherent jurisdiction to refuse an action for
infringement of copyright in cases in which the enforcement of copyright would offend against the policy of law. It
is difficult to determine precisely as to what amounts to public interest. What is clear is the jurisdiction of the court
in determining depending upon the nature of work at issue rather than the issue of ownership of work. Examples of
work injurious to public policy include works which are immoral, scandalous or contrary to family life.
74
Copinger and Skone James on Copyright 593 (2012).
75
Charlotte Waelde, Giaeme Laurie, Abbe Brown, SmitaKheria, Jane Cornwell, Contemporary Intellectual
Property: Law and Policy 194 (2nd ed. 2011);See also Hyde Park Residence v. Yelland, [1999] RPC 655, it was held
that: i. There was no public interest defence separate from that of public policy; ii. The circumstances in which
copyright would not be enforced must derive from the work itself rather than from the conduct of the copyright
owner; iii. The considerations arising from breach of confidence cases, where the courts balance the public interest
in maintaining confidentiality against the public interest in knowledge of truth and freedom of expression are
different from copyright where property rights are involved and the legislation already provide fair dealing defences
in public interest; Ashdown v. Telegraph Group Ltd, [2002] Ch 149 (CA); HRH The Prince of Wales v. Associated
Newspapers Ltd (No 3) [2008] Ch 57 (CA).
76
Supra note 19 at212.
124
films or film sound tracks in the course of instruction in the making of films or film sound tracks;
anything done for the purposes of examinations, apart from reprography of musical works for
exam candidates to perform; exclusion of short extracts from published literary and dramatic
works in educational anthologies; performing, playing or showing works in the course of
educational activities and recording broadcasts for educational purposes.77
The link between copyright and learning is not something new, rather it is an old one. Free
dissemination of knowledge and culture has always been formative spirit of copyright law. The
Statute of Anne, which was the first statute of copyright law, was titled as ‘advancement of
learning’. This approach pushed the concept of public interest in the circulation or dissemination
of knowledge and was the philosophical basis for granting limited exclusive rights to the authors.
In the modern world, the concern for public interest has been recognized by regional legislations,
international documents and has formed part of global regulation of copyright.78
The three areas of copyright having special significance for educational institutions are the laws
relating to the works protected, the ownership of copyright and the use of works protected by
copyright regime. Copyright protection has been extended to several artistic works and creative
expressions, literary works has been the major area and various issues have been agitated in the
past. Various types of work have come within the purview of literary works.79
It is only when the buyers know the rights, they have over the digital work they are buying, the
market will operate in a better way. In opposition to this, if buyers do not know their rights, the
market will not operate efficiently. The extent of knowledge buyers have as regards the transfer
of items they have purchased is a question that needs to be answered. In some cases, they know
their rights, while in some cases they don’t. To what extent they know of their rights requires a
sensible policy to be promoted among buyers, but the same should not lead to unrestricted digital
distribution.
77
Supra note 74 at 188.
78
Lawrence Liang, Exceptions and Limitations in Indian Copyright Law for Education: An Assessment 198 THE
LAW AND DEV REVIEW 210 (2010).
79
T.C. James, Copyright Law of India and the Academic Community 207 J INTELLEC PROP RIGHTS 213 (2004),
Courts have settled various issues concerning the scope of literary works, Jagdish Prasad v. Parameshwar Prasad,
AIR 1966 Patna 33, question papers set for examination; Fateh Singh Mehta v. Singhal, AIR 1990 Rajasthan 8,
research thesis and dissertations prepared by students; Manohar Lal Gupta v. State of Haryana, (1977) 79 Punj LR
181 (Delhi), compilation of book; Ghafur v. Jwala, AIR 1921 All 95, school textbook; E M Forster v. A N
Parasuram, AIR 1964 Madras 391, guide books; Jarrold v. Houlston, (1857) 3 K&J 708, book of scientific questions
and answers; Interfirm Comparison (Australia) Pty Ltd v. Law Society of New South Wales (1977) RPC 149,
questionnaire for collecting scientific information.
125
TRADE SECRETS: A STRONG FORM OF PROTECTION
Garima Singh1&DikshantTomar2
Abstract
Trade secrets are intellectual property (IP) rights on confidential information which may
be sold or licensed. Any confidential business information which provides an enterprise a
competitive edge may be considered a trade secret. Trade secrets encompass
manufacturing or industrial secrets and commercial secrets. Firstly in this paper, the
researchers will give an extensive introduction about Trade Secret & what constitutes the
Trade Secrets, followed by the emergence of Trade Secrets and its need in the
contemporary world. In addition to it, we also will throw light on various theories
regarding the justification of Trade Secret as a Property. The researchers will also
discuss what can be and cannot be protected under Trade Secrets as well as
misappropriation of Trade Secrets. Protection of Trade Secrets under the TRIPs
Agreement is also a crucial aspect to be discussed. The Trade Secrets will be compared
with other Intellectual Property Rights by the researchers and the case laws related to
Trade secrets will also be discussed and lastly, the question mushrooms out that whether
there is a need for separate legislation for Trade Secrets in India or not?
Key Words: Trade Secrets, Protection, confidential, legislation, Industrial
Introduction
Outright and forthright duplication is a dull and very rare type of infringement3
Trade Secrets are certain intellectual assets of a business or company that are kept
undisclosed to the public; such assets are not covered under traditional Intellectual
Property system such as Patent and Copyrights etc. This concept of secrecy has existed in
practice way before than the term “Trade Secrets” saw the light of the day as one of the
intellectual property rights. For example, Coca Cola’s formula is best-kept secret in the
world, its secret formula is more than a century old and KFC’s secret recipe is more than
70 years old and is kept secret in a digital safe. The New York Times has not revealed the
process for which they decide their famous Bestseller List.
World Intellectual Property Organization (WIPO) defines Trade Secrets are intellectual
property (IP) rights on confidential information which may be sold or licensed. Any
confidential business information which provides an enterprise with a competitive edge
may be considered a trade secret.4 Some secrets add value to the business, constitute the
1
LL.B (3rd Year) Lloyd Law College, Greater Noida. The author can be reached at
[email protected]
2
LL.B (3rd Year) Lloyd Law College, Greater Noida. The author can be reached at
[email protected]
3
Graver Tank & Mfg. Co. v. Linde Air Prods. Co. 339 U.S. 605, 607 (1950).
4
World Intellectual Property Organization, Trade Secrets, WORLD INTELLECTUAL PROPERTY
ORGANIZATION (October 10, 2020, 2:42 AM), https://www.wipo.int/tradesecrets/en
126
trade secrets. Such secrets are not exhaustive, unlike other intellectual property (IP)
rights. Sensitive information regarding the formula and pattern of business. Information
related to marketing, manufacturing and technology used in a business. These secrets are
confidential, are entitled to be protected under Trade Secrets.
Currently, In India there is no separate legislation has been made for the protection of
trade secrets and the courts in India are dealing with its breach according to the principle
of equity of common law principle. But the trade secrets are itself an old principle and
originated many years ago. Trade Secrets are a vital part of the intellectual property (IP)
rights which is yet to be given the same stature as the other intellectual properties. In
today’s world with growing competitions and market trade secrets rights are soaring,
which reflects the need for its separate statute.
Emergence of Trade Secrets

The practice of Trade Secrets can be traced back to the Renaissance when the new ideas
and interests were surging in Europe during the 14th-16th centuries. Trade Secrets laws
had paved its way into the Industrial Revolution, during which Statutes were enacted to
protect the Industrial Secrets. It was then trade secrets had found the foundation and
mushroomed internationally.
India used to be a closed economy until 1991 when the Liberalization Privatization
Globalization (LPG), economic reform was brought. After the economic reform Multi-
National Companies (MNCs) started to rush in the country, it was then India became
familiar and felt the need for trade secrets laws. India has not enacted trade secrets law,
although it protects trade secrets under the common law which essentially districts from
Patent Laws.
The epicenter of trade secrets laws is found in Common Laws and Principal of Equity.
Since then, many nations have incorporated trade secrets laws in their domestic laws.
United States (US) has been the torchbearer for the entire world for enacting the Trade
Secrets laws. In 1939, for the first time, the trade secrets found the law for its
misappropriation in Section 757 of the Restatement of Torts. 5 In the year 1979, the
Uniform Trade Secrets Act (UTSA), the first exclusive Trade Secrets Act in the World,
was enacted in the US, which was adopted by the most of the States. UTSA provides
trade secrets extensive protection. This Act has been revised and tailored by the States as
per their needs to date.
In the year 2016, Directives (EU) 2016/943 of the European Parliament (EP) and of the
Council on the protection of undisclosed know-how and business information (trade
secrets) was approved to standardize the national laws on the protection of Trade Secrets
in the European Union.
5
Christopher Rebel J. Pace, The Case For a Federal Trade SecretsAct, HARVARD JOURNAL OF LAW
& TECHNOLOGY (October 11, 2020, 10:36 AM),
http://jolt.law.harvard.edu/articles/pdf/v08/08HarvJLTech427.pdf
127
Japan enacted the Unfair Competition Prevention Law (UCPL) in 1934 at that time there
was not any provision regarding trade secrets. In 1990, Trade Secrets (civil) provisions
were added to UCPL. Since then it had been revised many times as the need of it felt.
Again in 2005, the criminal punishments were added as there was a surge in the cases of
misappropriation of Trade Secrets. The latest amendment was made in the year 2016 to
strengthen and widen the scope of trade secrets laws in Japan.
Need for Trade Secrets

Lack of trade secrets laws led to misappropriation and unjust enrichment of the valuable
information of a company all around the globe. Its need has felt as the cases of theft had
surged as new industries were being established. Trade Secrets come under the ambit of
Intellectual Properties. Trade Secrets play a very crucial role in the growth of the
company. The Growth of the company is directly proportional to the trade secrets or
depends upon trade secrets. Higher the secrets trades are, higher are the chances of the
company to reach its maximum growth. That is why they are called as the most essential
part of Intellectual property. Trade Secrets are win-win situation; it not only helps the
economy to soar but also protects the interest of the discoverer.
The economic value of the company is acquired by trade secrets only. They are flexible
and have a very wide horizon as compare to other Intellectual property. Trade Secrets are
also less risky than other Intellectual property, because while filing the patent, copyright
or trademark the company has to reveal the secret itself of the innovation which itself is
risky because if the application is rejected their secret will be disclosed in the market
which is unlikely in trade secrets.
Trade Secrets laws are need of the hour in the contemporary world. Trade Secrets have
layers of protections; first to distinguish followed by classification then value calculation.
Enactment of separate legislation is required to protect valuable information. India does
not have separate trade secrets laws, the judicial decisions are based on the Common
Laws and principal of equity. Trade Secrets have flourished lately internationally as well
as domestically now is the time to enact a statute to strengthen the protection of the secret
information.
Trade Secrets as a Property

It has been a debate for quite a time about whether trade secrets are property. Many
scholars have propounded theories that consider trade secrets as property. MichaleRisch6
has mentioned theories that recognize trade secrets as property which are exclusivity
theory, integrated theory, and bundle theory.
Exclusivity theory
6
Michael Risch, Why Do We have Trade Secrets?, 11 MARQUETTE INTELLECTUAL PROPERTY
LAW REVIEW 16 (2007).
128
The property, whether tangible or intangible, have exclusive rights against others. There
has been raging debate amongst the scholarly minds whether trade secrets are property or
not. Many scholars and judges have talked about this theory in their research papers or
books. For example, Judge Frank Easterbrook7writes that Intellectual Property also
encircles the right to exclude as any other physical property. United States Supreme
Court has also held trade secrets are property; owner of such property has the right to
extend protection from discloser to public domain.8
Integrated Theory
Integration theorist defines property as to how an asset is attained and used; in their
opinion exclusivity is not a considerable factor, to define a property. According to
Pamela Samuelson9 essential rights related to a property are use, enjoyment, possession,
transfer, and exclusion. Other scholars believe that the discoverer of the property has the
right to share the secret information or not. Therefore, trade secrets are eligible to be
protected as property.
Bundle Theory
Trade Secrets are defined as a bundle of rights. Exclusivity theory and integrated theory
are of the disputing opinion for the definition of Property. Bundle theory gives trade
secrets, social rights and duties as any other tangible and intangible property.
Not all scholars have been in favor of considering trade secrets as property. Some
scholars are of the view that to make the information as a property, it must be
distinguished that which information should be protected? A proper demarcation must be
made.10 Mark A. Lemley writes that if Information is considered as property, it gets
captured by the developer only and deprived of the social value.11 There have been mixed
views on considering trade secrets or Information as property. Now with the changing
time and need the views towards trade secrets have evolved. Trade Secrets are now
getting its due recognition.
Comparison of Trade Secrets From Other Intellectual Property

Many Intellectual properties existing in the current world but the trade secrets have their
different place amongst all of them. Intellectual property like Copyright, Trademark is in
the root of our system from past many years and gets its recognition a bit later. It is
different from other Intellectual property in numerous ways.
7
Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J.L. & PUB.
POL’Y 108, 112 (1990).
8
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984).
9
Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing
Direction in Intellectual Property Law? ,38, CATHOLIC UNIVERSITY LAW REVIEW 399 (1989).
10
Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing
Direction in Intellectual Property Law? ,38, CATHOLIC UNIVERISTY LAW REVIEW 399 (1989).
11
Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83, TEXAS LAW REVIEW 1037
(2005).
129
Copyright law always derived from any creativity, whereas trade secrets do not
necessarily come out of any creativity. On the other hand, Patent law is derived from any
innovation but for maintaining the secrecy trade secrets do not need to be innovative.
Both Copyright and patent disclose the information on a public platform and made it
usable to all. A person has the freedom to use that information without any prior
approval. But in the case of trade secret, except the owner, no other person can use that
information. It always keeps secret and away from the public. Unlike copyright and
patent, the information also needs not to be creative or innovative to be kept secret.
If the two parties somehow come across on the same information and claiming their right
over it individually, trade secrets can provide them with the protection as copyright does.
On the other hand, patent and trademark does not do so. In terms of cost, trade secrets are
also very cost-efficient as compared to other intellectual property like patent or copyright.
It takes a handsome amount of money to file a single patent. Also, in the case of
protection, the Patent can be protected only for 20 years & not beyond that, which is not
in the case of trade secrets. Trade Secrets can be protected for all time. In the case of a
patent, when the patent is granted to any innovation the information related to it becomes
disclose and can be used on a public platform, but in the case of trade secrets, the
information rests secret to the unlimited duration. All the other Intellectual property also
has the right to exclude others like any other physical property but trade secrets do not
have this right. Moreover, the checklist for admitting the patent is very long from
applying for the examination, the applicant has to go a long way, but in the case of trade
secrets, no such procedures are required. If the information used in your business attains
advantage over other contenders in the market then that information shall be licensed &
fit to be considered as a trade secret.
Summarized comparison of trade secrets with other Intellectual property in the tabular
form is given below:
Subject Matter Patent Copyright Trade Secret
1. Original Information? Yes Yes No

2. Registration Requirement? Yes Yes No
3. Disclose of Information after registration? Yes Yes No
4. Right to exclude? Yes Yes No

5. Derivation. Innovation Creativity The
information
must be
valuable &
secret.
6. Access of Information. Yes Yes No
130
7. Protection on same information? No Yes Yes
8. Checklist required for registering? Required. Required. Not required
Protection under Trade Secrets

Trade Secrets are protected as long as the secrecy of the information is maintained,
through statutes and laws enacted. Information that is eligible to be protected has been
defined in the international laws and domestic laws of the countries which have enacted
the trade secrets laws. The list of secret information can be exhaustive and lengthy, for
better protection and enforceability of the law a general standard for what can be
protected under trade secrets must be set.
India has not enacted any trade secrets law, but it is a signatory to trade-related aspects of
Intellectual Property Rights (TRIPs) Agreement and obliged to protect the Undisclosed
Information or trade secrets. Indian Judges rely on Common Law principle, India
Contract Act and provisions related to the protection of data of Securities and Exchange
Board of India Act, Copyright Act, Information Technology Act etc. to pronounce
judgments.
Trade Secrets are protected from misappropriation such as improper means to get the
trade secrets and breach of duty. There is no uniform standard set for what information
can be protected. International organizations, treaties and, countries have acquired
different aspects for the same. Although the eligibility criteria of information as trade
secrets are somewhat similar. Article 39 of the Trade-Related Aspects of Intellectual
Property Rights12 (TRIPs) agreement divides the eligibility criteria into three; the
information must be secret, must possess commercial value and, efforts to be made to
keep the information secret through non-discloser agreement etc.
European Union protects information such as novel invention, production activity and,
records of suppliers and client, under trade secrets.13 UTSA, under section 1, also has
given uttermost importance to the efforts made to keep information secrets, such as
formula, pattern, compilation, program, technique or process.14 Japan is also an active
member in this arena. Japan’s Unfair Competition Prevention Act (UCPA) also obliges
the TRIPs Agreement’s minimum standard of trade secrets. Article 2(6) of UCPA
protects technical subject matter and business information useful for business activity
including records of customer and suppliers, manufacturing process, sales records and
product design.15
12
TRIPs AGREEMENT art. 39.
13
Your Europe, Trade Secrets in the EU: What is protected?, EUROPEAN UNION ( October 13, 2020,
8:37 PM), https://europa.eu/youreurope/business/running-business/intellectual-property/trade-
secrets/indexamp_en.htm
14
Uniform Trade Secrets Act § 1.
15
Unfair Competition Prevention Act art 2, cl. 6. (Unofficial English Translation).
131
Trade secrets protect information that carries commercial value or information useful for
business activity. Worldwide protectable trade secrets subject matters are wide and
exhaustive. Subject matters of trade secrets may differ from country to country and
business to business, it has an endless array of categories which are mentioned below, for
example:
• Formulae • Pattern • Business Process
• Compilation • Program • Software algorithm
• Customer list • Supplier list • Sales record
• Devices • Product design • Inventions
• Strategic plans • Ingredients • Pricing

• Manufacturing process • Advertising program • Technical information
• R&D information
When Trade Secrets Cannot Be Protected?

Due to increased networking and globalization threat to database and trade secrets has
spiraled. Trade Secrets are protected only until the information is a secret and has not
been come into the public domain. Trade Secrets can be lost even after keeping it as a
secret using all sorts of means, if somebody independently innovates the same formula or
chemical compound etc., if somebody reverse-engineers the secret and of course if the
secret information inadvertently sees the light of the day. These may be a complete
defense to Trade Secret misappropriation.
Misappropriation of Trade Secrets

Misappropriation of trade secrets has existed from a time when trade secrets laws came
into force. Protection for misappropriation of trade secrets can be traced to earlier Roman
Empire. Roman laws gave protection to the owners of a firm or brand against the unfair
means of the competitors. Roman courts have protected such misappropriation under
“actioservicorrupti” meaning action for making slaves ill.16
Trade secrets are confidential information which is not supposed to be disclosed. If any
information found to be confident enough to maintain its secrecy it will be fit to be called
trade secrets. But if that information is acquired falsely or with ill intention then it will be
called as misappropriation of trade secrets. Earlier for misappropriation of trade secrets,
there were layers of action that had to be fulfilled, such essential elements are: obtaining
16
A. Arthur Schiller, Trade Secrets and the Roman Law: The ActioServiCorrupti, 30 COLUM. L. REV.
837 (1930).
132
trade secrets or confidential information through improper means, discloser of obtained

trade secrets to the public domain, and use of such acquired trade secrets through
improper means to get profit or advantage out of it. Trade Secrets laws have been
advancing since its inception, now any of above-mentioned misappropriation is used
against the owner or developer the person misappropriating will be liable. Even a mere
attempt to acquire valuable information is punishable in a few countries.
Misappropriation is one of the reasons for strengthening the trade secrets law. Many
countries have advanced their trade secrets laws when the cases for misappropriation
raged. For example, Japan had only a civil remedy until 2005. When cases of improper
means and theft of trade secrets were soaring, that’s when the incorporation of criminal
remedy against the misappropriation was added under Japan’s Unfair Competition
Prevention Act.
In the United States the Uniform Trade Secrets Act defines ‘misappropriation’ under
Section 1(2) as mainly by acquiring secret information through improper means and
disclosing trade secrets without the knowledge of the owner or the developer. Further
‘improper means’ is also defined under Section 1(1), there are several ways mentioned
through which improper means can be exercised, for example, theft, through a bribe, by
breach of duty to maintain secrecy, and by misrepresenting etc.17
In the broader perspective, the meaning of improper covers the acts or deeds for which
we can take the action like trespass, breach of contract, conversion of physical property,
and, under modern laws, the misuse of computer networks.18The word ‘improper’ itself
has a very wide ambit to discuss. In the Restatement of Torts, it is mentioned that any act
which is beyond the normal ethics and standards of society will be considered as or
accepted as ‘improper’. Reasonable conduct is expected for making it a proper one.
Though the power of deciding, whether the particular activity is considered to be
improper or not shall lie within the court.19
There are varieties of remedy available in particular trade secrets laws across the globe
for misappropriation of trade secrets. In civil remedy, whosoever misappropriates trade
secrets will be liable to pay fine, penalty, damages and court fee etc. Criminal charges are
also attracted in few countries depending on how the secret information has been
extracted? Liability for misappropriation extends when a person acquires the secret
information inappropriately when such vulnerable information is circulated or published
and deliberate use of information knowing it is a secret and against the law to use such
information.20
17
Uniform Trade Secrets Act §1, (1),(2).
18
Physicians Interactive v. Lathian Sys., Inc., 69 U.S.P.Q.2d (BNA) 1981.
19
DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., 170 F.3d 1354, 1364 (Fed. Cir. 1999).
20
Uniform Trade Secrets Act § 7.
133
Trade Secrets under Agreement on Trade-Related Aspects of Intellectual Property

Rights (TRIPS)
“Undisclosed Information” or Trade Secrets were given exclusive protection under

Article 39 of Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement.
This is the first time an international agreement took Intellectual Property rights (IPRs)
related laws under its realm. The Paris Convention (1967) includes “Unfair Competition”
under Article 1(2) and ensures its protection under Article 10bis.21Protection of
Undisclosed Information has been incorporated under Article 39 of TRIPs agreement,
which relates the undisclosed information with the protection unfair competition under
Article 10bis of Paris Convention (1967) to ensure the maximum protection for both.22
The multilateral agreement on IPRs has its genesis during the negotiation at Uruguay
Round stretching from 1986 to 1994.23 During this time multilateral trade negotiations
were being discussed following that World Trade Organization (WTO) was established in
1995. The inauguration of the multilateral negotiations started at Punta del Este in1986
where ‘Trade-Related Aspects of Intellectual Property Rights’ was first negotiated by the
countries. The Uruguay Round came to its end in 1994; agreement on TRIPs came into
its being as well.
Before the establishment of WTO, countries had varied Intellectual Property Rights laws,
to narrow down the gap TRIPs agreement came into force. TRIPs agreement has set a
minimum global standard for the Intellectual Property Rights to be abided by the member
countries of World Trade Organization (WTO). Trade Secrets was also incorporated and
given protection along with the other traditional Intellectual Properties (IPs) under the
agreement. TRIPs also give flexibility to its signatories to incorporate and modify laws
into their national laws as per their need. Many countries and union now have their own
trade secrets laws enacted, for example, the US, Japan, and Taiwan etc. Currently, India
has no exclusive trade secrets laws enacted.
Famous Case Laws Related to Trade Secrets
Ruckelshaus v. Monsanto Co.24

The issue raised in this case was whether the Taking Clause of the Fifth Amendments
protects the Trade Secret property rights or not? The answer is yes, it does. For the first
time court held that trade secrets were property and protected under the Taking Clause of
the Fifth Amendments.
21
Paris Convention 1967 art. 1, cl. 2, art. 10bis.
22
TRIPs Agreement Art. 39.
23
World Trade Organization, Intellectual Property: Protection and Enforcement, WORLD TRADE
ORGANIZATION (October 15, 2020, 03:07 PM),
https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm
24
Ruckelshaus v. Monsanto Co.467 U.S. 986 (1984).
134
Saltman Engineering Co Ltd v. Campbell Engineering Co Ltd25

Lord Green has observed in this case that the maintenance of secrecy either rely on the
common law action for breach of confidence or rely on the principle of equity. An effort
and brain must be put to keep the information secret, as the information cannot be
decoded without going through the same process. Saltman’s case has been cited in many
Indian cases as well.
Bombay Dyeing and Manufacturing Co. Ltd. v. Meher Karan Singh26
In this case, six factors were observed for information to be classified as trade secrets:
1. The extent to which information is disclosed to the public domain.
2. The extent to which information is known by the employees.
3. Precaution is taken by the developer to safeguard the secret information.
4. Valued information is saved by the holder as against the competitors.
5. Time and money spent on acquiring and advancing the information.
6. Time and cost to be taken to duplicate or obtain the information by others.
Burlington Home Shopping Limited v. Rajnish Chibber27
In this case, the Delhi High Court observed that trade secrets are valuable information
and must not be disclosed, revealing such information can cause harm to the owner.
Court also observed that trade secret protects vast kind of subject matter which includes
business data, consumer lists and other compilation of data.
Need For Sui Generis System for Trade Secrets Protection in India
For trade secrets related disputes, India mostly relies on Section 27 of the Indian Contract
Act and few other Acts, for example, Exchange Board of India Act, Copyright Act,
andInformation Technology Act etc. Hence, there is no Sui Generis principle of trade
secret laws in India. As of now, many countries are now participating to incorporate
exclusive trade secrets law in their national laws. India’s approach is contrary to the
global trend, as many Asian countries also have incorporated trade secrets law date back
to 1990, for example, Japan and it has been advancing as per the need. Japan has
incorporated a criminal remedy to its Unfair Competition Prevention Act in 2005. A
dispute regarding trade secrets in India mostly has a civil remedy as Section 27 of India
Contract Act only provides civil remedy and no criminal remedy.
In this era of globalization, the need for trade secrets laws is vital to entice foreign
investments and multinational companies (MNCs) and also to ensure protection for their
proprietary information. Paris Convention (1967) under Section 10bis puts its signatories
under an obligation to codify law to protect the confidential information. TRIPs have also
referred to the same and establish a minimum global standard for trade secrets to be
25Saltman Engineering Co Ltd v. Campbell Engineering Co Ltd, 203 RPC 65 (1948).

26
Bombay Dyeing and Manufacturing Co. Ltd. v. Meher Karan Singh, 2010 (112) BOM LR 375 ¶ 51.
27
Burlington Home Shopping v. Rajnish Chibber 1995 (61) DLT 6 ¶ 9.
135
incorporated by its member countries in their national laws. India is yet to decide to
codify a law to protect trade secrets under its regime.
Trade Secrets are extensive and are flexible contrary to other traditional Intellectual
Properties (IPs). Patent Law and Copyright law etc. have their arenas defined, unlike
trade secrets. Patent litigations are heavily burdened in India, enactment of trade secrets
law may lessen its burden and it will also encourage speedy judicial pronouncement of
Intellectual Property Rights (IPRs).
It is high time; India must act to enact trade secrets law to keep up with the world
economy. The effective regime and proper implementation of trade secrets law promote
innovations and give the Small and medium-sized enterprises (SMEs) an edge to flourish.
Trade Secrets also stimulates trade and help the economy grow and its sectors as well.
Conclusion
The jurisprudence of trade secrets has been deeply rooted in Intellectual Property Rights
longer than it has been kept at the same footing as patent, copyrights, and trademark.
Today trade secrets laws are rapidly recognized all around the globe, keeping in mind the
changing market strategies and advancing technologies. At present, India is looked up to
for its potentially vast market and must ensure all sorts of protection and remedies
available to the businesses coming to India. Small and medium-sized enterprises (SMEs)
must also be given extensive protection of trade secrets to flourish causing the growth of
the economy, ultimately. It will be a win-win situation for India to enact a statute for
trade secrets, must act upon it.
136
THE RIDDLE OF THE MANDATORY CERTIFICATE: JUDICIAL TRENDS

AND SOLUTIONS SURROUNDING SECTION 65B OF THE INDIAN
EVIDENCE ACT, 1872
Siddharth Srikanth1
Abstract
The legal position surrounding the mandatory requirement of a certificate under Section
65B of the Indian Evidence Act, 1872, has recently been clarified by the Supreme Court.
The Gorantyaljudgment has also called for a much-needed reformation of the laws
governing admissibility of electronic evidence. Given that the legislation that was
reproduced by Section 65B, has been repealed in the United Kingdom, it seems only apt
for India to also amend its norms. This paper in order to arrive at the most apposite
chrysalis of such amendment, first studies the existing statutory framework regulating the
admissibility of electronic evidence in India. In this respect, the researcher also explores
the law on admissibility of electronic evidence in various other foreign jurisdictions.
Secondly, the paper explores the contours of judicial interpretation, with specific
reference to the mandatory necessity of a certificate under Section 65B(4). The
researcher analyses the oscillation of the judicial pendulum, beginning at Navjot Sandhu,
moving to Anvar P.V., back to Shafhi Mohammad and finally coming to rest at
Gorantyal. The paper further aims to elucidate on the various concerns and problems
arising from the mandatory requirement of a certificate, and the manner in which these
concerns have been addressed. Ranging from Canada to the United Kingdom, the paper
explores the various lessons that could be learnt from the numerous international
regimes concerning electronic evidence. The researcher in the course of this paper, has
adopted the doctrinal method of research. The researcher has used both primary and
secondary sources in order to come to a conclusion as to the best way forward.
Keywords: Admissibility, Certificate, Computer Output, Electronic Record, Secondary
Evidence
Introduction
With increased development and especially with the occurrence of the Coronavirus
pandemic, technology has started to play a greater and more central role in our lives. This
central role hence leads to more instances of evidence being submitted in technological or
electrical form, thereby leading to greater reliance on such forms of evidence. This
reliance in turn implies that there indeed need to be rules that govern the introduction,
admissibility and probative value of such evidence. But there arise certain problems.
Electronic data or evidence are generally easier to produce, manipulate and destroy.2
Therefore, their correctness and exactitude is constantly put into doubt. Nevertheless,
1
3rd Year student, 2020-2021, B.A. LL.B. School of Law, CHRIST (Deemed to be University), Bengaluru.
. The author can be reached at [email protected].
2
Ashwini Vaidialingam, Authenticating Electronic Evidence: Sec. 65B, Indian Evidence Act, 1872, 8
NUJS L. REV. 43, 43 (2015).
137
newer techniques and devices play a crucial role in acting as evidence for a particular
situation. But as such technology is susceptible to tampering and alteration, it must often
be viewed cautiously.3
The legal scenario surrounding the admission and valuation of electronic evidence is
essentially made of two statutes- the Indian Evidence Act, 18724 and the Information
Technology Act, 2000.5 With a view to incorporate modern developments into the former
statute, the latter under Entry 9 of Schedule II, added Section 65A and 65B, which laid
down guidelines for the admissibility of electronic records. Clause 1 of Section 65B
(§65B) essentially deems any computer output, which is defined as any electronic record
printed on paper, present in optical or magnetic media that is produced by a computer, to
be within the ambit of the term ‘document’ provided certain conditions are met.
Furthermore, §65B(4) mandates that a certificate enumerating the required information
would act as evidence of such information enumerated.
The aforementioned sub-section was further explained in Anvar P.V. v. P.K.
Basheer6(Anvar) wherein the Apex Court held that under §65B, any secondary evidence
pertaining to electronic records is inadmissible without the requisite certificate. However,
in Shafhi Mohammad v. State of Himachal Pradesh7(Shafhi Mohammad)the same Court
in a lower Bench held that if the person producing the electronic evidence was not in
possession of the device, as the provision mandating the requirement of a certificate was
purely procedural in nature, such a provision could be waived when it serves the interests
of justice. This confusion has finally been resolved in Arjun PanditraoKhotkar v. Kailash
KushanraoGorantyal8(Gorantyal)wherein the Court held the Shafhi Mohammad logic to
be incorrect, and re-asserted the law as enumerated in Anvar.
It is this perceived confusion that this paper seeks to examine. The paper studies the
development of the law on the introduction of electronic evidence through various case
laws. Part II of the Paper looks into the statutory provisions that govern electronic
evidence, and the issues that arise from them. It also studies the statutory provisions and
interpretations of various other foreign jurisdictions. Part III then traces the development
of the law through judicial decisions and their rationales. In doing so, it studies as to how
various concerns arising out of a preceding judgment were addressed by successive ones.
Part IV then provides certain principles and suggestions that could be adopted under the
current regime of admissibility.
3
Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) 4 S.C.C. 329 (India).
4
Indian Evidence Act, 1872, No. 01 of 1872, INDIA CODE
https://www.indiacode.nic.in/bitstream/123456789/2188/1/A1872-1.pdf.
5
Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
6
A.I.R. 2015 S.C. 180 (India).
7
(2018) 2 S.C.C. 801 (India).
8
2020 (5) CTC 200.
138
The Statutory Environment around Electronic Evidence

A. INDIA
It of course comes as no surprise that the Indian Evidence Act, 1872(IEA) did not
concern itself with electronic forms of media and evidence given its time period. There
nevertheless arose a need for it to recognise and provide for such forms of evidence. It is
with this intention, that the Information Technology Act, 2000 made certain additions to
the IEA viz. Section 65A and Section 65B. The former simply states that the contents of
any electronic record may be proved in accordance with the latter section. §65B hence
becomes central to understand how the Indian Evidence Act deals with the issue of
electronic records. As mentioned, priorly, under §65B(1) any computer output is deemed
to be a ‘document’. Consequently, Section 3 of the IEA defines the term ‘document’ to
mean any matter expressed through letters, figures or marks in order to record such
matter. Furthermore, the same section defines ‘evidence’ as inclusive of oral evidence
and all documents including electronic evidence produced to the Court for inspection.
This treatment of electronic records as documents is subject to certain conditions
enumerated in §65B(2). The first condition is that the computer output should have been
produced by a computer during a period in which it was regularly used to process or store
information for the purpose of activities that were carried out regularly during that period,
by the person having lawful control over it.9 Secondly, during that time period, the
aforementioned information must have been regularly fed into the computer in the
ordinary course of activities.10 The third condition was that the computer in question was
operating properly, and if not, then the improper working of the computer should not
have affected its electronic record or its content’s accuracy.11 And lastly, the information
submitted in the electronic record should have been reproduced or should have been
derived from the information that was fed into the computer in the ordinary course of
activities.12 In pursuance to this section, any combinations of multiple computers that
have worked together or successively or in any other manner, over a given time period
and have stored or processed information in the ordinary course of regularly carried out
activities shall be deemed to be a single computer and shall be treated as the same.13
The next provision of particular concern is that of §65B(4). This sub-section as
mentioned before states that any evidence that is to be introduced under this section is to
be accompanied with a certificate. This certificate has to identify the electronic record
which contains the statement that is to be treated as evidence, must describe the manner
9
Indian Evidence Act, 1872, §65B(2)(a), No. 01 of 1872, INDIA CODE
10
Id. §65B(2)(b).
11
Id. §65B(2)(c).
12
Id. §65B(2)(d).
13
Id. §65B(3).
139
in which it was produced, has to provide the particulars of any device involved in the
production of such electronic record and has to deal with any matter highlighted under
§65B(2). This certificate must be signed by a person occupying a responsible official
position in relation to the operation of the device or to the activities carried out. Such
electronic record accompanied with such a certificate is treated to be evidence, and the
information stated is only required to be true to the best knowledge and belief of the
person whose statement it is.14 The controversy surrounding §65B is primarily a result of
various courts interpreting the section in different ways, thereby insisting on varying
methods of establishing the conditions provided under §65B(2).15 There is further
confusion in the question of whether production of the certificate under §65B(4) is
mandatory or is simply procedural and can be waived. It is this question that was further
complicated by Shafhi Mohammad.
B. OTHER FOREIGN JURISDICTIONS
The regime surrounding the admissibility of electronic evidence in India was primarily
inspired out of Section 5 of the Civil Evidence Act, 1968 (CEA), of the United
Kingdom.16 This provision however, was consequently repealed by Schedule II of the
Civil Evidence Act, 199517. This repealing was pursuant to the recommendation of a Law
Commission Report in 1993, titled “The Hearsay Rule in Civil Proceedings”18. Among
other observations, the Report recommended that there should no special provisions with
respect to computerized records, and the general rule of evidence should prevail.19
Furthermore, the Report was of the opinion that when it came to authenticity of computer
records, it was perhaps better left for the courts to decide the admissibility of records on a
case-to-case basis, rather than for the legislature to impose “complex and inflexible
conditions”20. The same then was mirrored in the Civil Evidence Act, 1995. It is also
important to note, that when it came to criminal proceedings, Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) governed admissibility of such evidence. A Law
Commission dealing with this particular provision observed that the section was
unsatisfactory due to five reasons.21 Among these reasons, were also concerns
surrounding the fact that often those seeking to adduce electronic evidence may not be in
a position to certify the functioning of the computer. In fact, such power or ability may be
14
Id. §65B(4).
15
Vaidialingam, supra note 1, at 8.
16
AradhyaSethia, Rethinking Admissibility of Electronic Evidence, 24 INT'L J.L. & INFO. TECH. 229, 232
(2016).
17
Civil Evidence Act 1995, c. 38, sch. 2 (Eng.).
18
UK LAW COMMISSION, REPORT NO. 216:THE HEARSAY RULE IN CIVIL PROCEEDINGS, 1993.
19
Id. ¶4.43, ¶5.14.
20
Id. ¶3.21.
21
UK LAW COMMISSION, REPORT NO. 245: EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED
TOPICS ¶13.6, 1997.
140
with the opposing side.22 Moreover, with the advancements in technology, it had become
extremely tedious and impractical to certify all the intricacies of the operation of a
computer.23 Based on the recommendation of the Law Commission, Section 69 of PACE
was repealed by the Youth Justice and Criminal Evidence Act, 1999.24
In the United States, this special treatment of electronic evidence is nowhere to be found.
Traditional principles of admissibility of evidence are also applied to electronic
evidence.25 The authenticity of evidence under Federal American law, is found under
Rule 901 and Rule 902 of the Federal Rules of Evidence (FRE). Authenticity was also
held to be one of the requirements of admitting electronic evidence in Lorraine v.
Markel26. Judge Grimm highlighted how electronic evidence can be authenticated by
metadata and hashmarks.27As also recognized in the judgment, a few methods of
authentication are seen to be more common and adequate.28 These include testimony of a
witness with personal knowledge (Rule 901(b)(1)) and authentication through distinctive
characters and the like (Rule 901(b)(4)). Furthermore, it has been noted that the definition
of ‘original’ is far wider in the American scenario, than in that of India. 29 The increased
requirement of authentication of electronic evidence led to the incorporation of two more
rules in 2017- Rule 902(13) and Rule 902(14). Both provide mechanisms for
authentication through certification.30
Under Canadian law, emphasis is placed on the integrity of the system.31 Canada
therefore, falls within the countries that has special laws governing the admissibility of
electronic evidence. There are also various presumptions at play here. Three predominant
ones are regarding the proper operation of the computer, the integrity of electronic
records being stored by an adverse party and finally, a presumption with respect to a
neutral third-party storing electronic records.32 In South Africa, the requirement of a
certificate was charged with being overly cautious, and eventually, was reduced to an
optional method of authentication.33 Hence, it becomes clear that across jurisdictions, a
22
Id. ¶13.9.
23
Id. ¶13.8.
24
Youth Justice and Criminal Evidence Act 1999, c. 23, §60 (Eng.).
25
Jonathan D. Frieden & Leigh M. Murray, The Admissibility of Electronic Evidence under the Federal
Rules of Evidence, 17 RICH J.L. TECH. 1, 2 (2011).
26
Lorraine v. Markle and American Insurance Co. 241 F.R.D. 534 (D. Md. 2007).
27
Brian W. Esler, Lorraine v Markel: Unnecessarily Raising the Standard for Admissibility of Electronic
Evidence, 4 DIGITAL EVIDENCE & ELEC. SIGNATURE L. REV. 80, 81 (2007).
28
Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1, 9 (2009).
29
Sethia, supra note 15, at 247.
30
John M. Haried, Two New Self-Authentication Rules That Make It Easier to Admit Electronic Evidence,
66 U.S. ATT’YS BULL. 127, 128-131 (2018).
31
Uniform Electronic Evidence Act, 1997, s. 4 (Can.), https://www.ulcc.ca/en/uniform-acts-new-
order/older-uniform-acts/749-electronic-evidence/1924-electronic-evidence-act (last visited October 19,
2020).
32
Sethia, supra note 15, at 239-240.
33
Id. at 245.
141
certificate is not an essential element of admitting electronic evidence. However, it is

accepted when submitted.
The Judicial Pendulum

A. THE PENDULUM PUT IN MOTION: STATE V. NAVJOT SANDHU
A central issue that arose with respect to §65B was the mandatory nature of the
certificate. This concern was first clarified in the case of State (NCT of Delhi) v. Navjot
Sandhu34. The case dealt with the infamous attack on Parliament. More specifically, one
of the issues in this case was the admissibility of telephone call records or rather, their
printouts. The Court held that there was no bar on introducing secondary evidence under
the other sections of the IEA viz. Sections 65 and 63. Hence the call records evidence in
Navjot Sandhu which was produced without a certificate, was allowed. Moreover, the
Court held that a cross-examination of a competent witness who was conversant with the
functioning of the computer during the relevant time and the manner in which the
printouts were taken, was enough to determine the authenticity and reliability of the
evidence so adduced.
By virtue of this decision, the Apex Court affirmed a Delhi High Court judgment also
dealing with the attack on Parliament House.35 In this case, the Delhi High Court had
held that simply adhering to §65B(1) and §65B(2) was enough to make electronic records
admissible. The provision for certificate was seen to be an alternative mode of proving
electronic record and not the sole means of doing so.36 Hence, the Supreme Court
judgmentsignaled an approach of the courts in which the certificate would no longer be
mandatory and could be replaced by procedure under Section 63 and 65 of the IEA. 37
However, there has been no uniformity in the interpretation of this section. Some have
rejected this lenient reading of the requirement of certificate and have demanded one in
order to authenticate, while others simply do away with any requirement as to
authentication as both parties agreed to allow that evidence to be placed on record. 38 This
hence had led to the reasonable conclusion that the admissibility of electronic evidence
and the requirement of a certificate is solely predicated on judicial discretion and not on
any uniform principle of interpretation.39
34
(2005) 11 S.C.C. 600 (India).
35
State v. Mohd. Afzal, (2003) 107 DLT 385 (Delhi).
36
Id.
37
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 S.C.C. 600 (India).
38
39
Id.
142
B. THE SWING OF UNIFORMITY: THE ANVAR JUDGMENT

When a victory of a candidate in the general election to the Kerala Legislative Assembly
was challenged by the runner-up, arguing that the winner had engaged in the commission
of corrupt practices under Section 123(4) of the Representation of the People Act, 195140,
the Court reassessed the position of law under §65B.41 The petitioner contended that the
defendant had made use of songs and announcements in the course of election
propaganda, which were false in relation to his own conduct. Hence, the appellant sook to
set aside the election, and to obtain a declaration in his favor.42 As the CDs produced
before the Court were not the original CDs used to make those announcements, the Court
held that they could not be treated as primary evidence and hence attracted the provision
for certificate under §65B.
While considering the decision in Navjot Sandhu, the Court made note of the principle
generaliaspecialibus non derogantwhich means that a special law will always prevail
over a general law. The Court opined that as Section 59, 65A and 65B are special
provisions concerning electronic records, they in themselves form a code and the general
law encapsulated under Section 63 and Section 65 with respect to secondary evidence,
has to yield to that code. Therefore, the Court went on to hold that the position of law as
laid down in Navjot Sandhu was incorrect as it did not take into account Sections 59, 65A
and 65B, and went on to explicitly overrule the judgment. This therefore meant that no
secondary evidence under §65B was admissible unless accompanied with the requisite
certificate. As to the conditions provided under §65B(4), it would seem that the Court
saw these conditions as individually mandatory, meaning that every single one of those
conditions were needed to be fulfilled by virtue of the certificate. 43 This would therefore
seemingly be against the statutory language provided under the section, as the section
states that certificate can do “any”44 of the given conditions. The Court also made a point
of observing that the responsible official should have certified the document at the time at
which it was produced.45 If this concurrent certification is not provided, then the evidence
is not admissible under the section.
The implications of this judgment are manifold. One principally problematic result of this
judgment is that it makes a distinction between admissibility and genuineness, claiming it
is only after duly producing the evidence under §65B, that its genuineness comes under
question.46 This goes against the law laid down by the judiciary in India with respect to
40
Representation of the People Act, 1951, No. 43, Acts of Parliament, 1951 (India).
41
Anvar P.V. v. P.K. Basheer A.I.R. 2015 S.C. 180 (India).
42
Id.
43
44
Indian Evidence Act, 1871, §65B(4), No. 01 of 1872, INDIA CODE
45
Anvar P.V. v. P.K. Basheer A.I.R. 2015 S.C. 180, ¶ 22.
46
Id. ¶ 16.
143
tape-recordings, stating that the reliability of evidence must be established before it is

admitted.47 The logic behind this being that such forms of evidence are extremely
vulnerable to manipulation and alteration, and therefore there exists a question of
genuineness which needs to be addressed before allowing for them to be admitted. 48 The
requirement as to the certificate being obtained at the time of producing the document,
leads to certain complications. Those who want to introduce such evidence, but have not
obtained certificates at the time of producing that document, cannot admit that evidence,
and those who want to avoid introducing such evidence, can simply forego obtaining the
requisite certificate.49
C. THE PENDULUM SWINGS BACK: THE JUDGMENT IN SHAFHI MOHAMMAD
On the issue of secondary electronic evidence, the Apex Court in Tomaso Bruno v. Union
of India50(Tomaso Bruno), held that such evidence could not only be made admissible
under §65B, but also could be led under Section 65. These resultant ambiguities were
further exacerbated by the Apex Court in Shafhi Mohammad v. State of Himachal
Pradesh51. While the case concerned an appeal wherein the issue was the admissibility of
videography of a crime scene or the scene of recovery in order to inspire confidence in
evidence collected, the Court went on to address concerns surrounding the admissibility
of electronic records. The obvious distinguishing factor which differentiated this case
from Anvarwas the issue of whether a certificate was still mandatory when the device
from which the electronic document was generated, was not in the possession or custody
of the person producing it. A two-judge Bench had previously held that when it came to
evidence by means of audio or video tape technology, no exhaustive rule could be laid
down for the admission of such evidence as it was neither feasible nor advisable.52
Relying on this judgment among others53, the Court in Shafhi Mohammad went on to
hold that the provisions under §65A and §65B are merely procedural and clarificatory in
nature. The Court clarified that provided the evidence was authentic and relevant, it was
admissible subject to the Court being satisfied as to its authenticity. The Division Bench
further went on to hold that §65A and §65B could not be said to be a complete code on
the subject, as only secondary evidence could be introduced under those provisions.54
In accordance with their opinion as to the procedural nature of those provisions, the Court
held that the provision require the furnishing of certificate was only applicable in cases
47
R.M. Malkhani v. State of Maharashtra (1973) 1 SCC 471; Tukaram S. Dighole v. Manikrao Shivaji
Kokate, (2010) 4 SCC 329; Vaidialingam, supra note 1, at 58.
48
49
Sethia, supra note 15, at 242.
50
(2015) 7 S.C.C. 178 (India).
51
A.I.R. 2018 S.C. 714 (India).
52
Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) 4 S.C.C. 329 (India).
53
Tomaso Bruno v. Union of India (2015) 7 S.C.C. 178; Ram Singh v. Ram Singh A.I.R. 1986 S.C. 3.
54
Shafhi Mohammad v. State of Himachal Pradesh A.I.R. 2018 S.C. 714.
144
where the person producing the document had the capacity to furnish the certificate by
virtue of him being in control of the device that generated the electronic document.55 For
those who are not in possession of the device, they can certainly invoke Section 63 and
Section 65 in order to produce electronic evidence. If such invocation is not permitted,
the Court stated, it would be a denial of justice to the person who possessed authentic
electronic evidence which was disallowed from admission merely on account of the
absence of a certificate that they could not possibly secure.56 Hence, the requirement of a
certificate with respect to electronic evidence could be relaxed as and when the interests
of justice justify the Court to do so.
One of the concerns that arose from the Anvarjudgment was the fact that it mandated the
furnishing of a certificate, which thereby led to the inadmissibility of electronic evidence
that was illegally obtained, or electronic evidence provided by whistle-blowers.57 This
therefore leads to a double standard. For illegally obtained non-electronic evidence would
be admissible but illegally obtained electronic evidence would not be as there would be
no certificate accompanying it.58 It is perhaps this problem that this judgment somewhat
remedies. It allows for electronic evidence to be admitted through mechanisms available
to even non-electronic evidence, thereby bringing some semblance of equivalency
between the two types of evidence. Furthermore, the issue of evidence produced by
whistle-blowers is also remedied with the allowance of those not in possession of the
device, to produce evidence without a certificate. However, as this judgment was by a
Division Bench, it does not adhere to the doctrine of binding precedent appositely
summed up in Central Board of Dawoodi Bohra Community v. State of Maharashtra59.
Hence a major question arose as to whether or not it was good law.
D. THE PENDULUM COMES TO A REST: THE GORANTYALJUDGMENT
It would seem that the confusion caused by the previous case and various other
judgments has finally been resolved by the Supreme Court in Arjun PanditraoKhotkar vs
Kailash KushanraoGorantyal60(Gorantyal). The case was filed by two petitioners who
challenged the election of the Appellant under Section 80 and Section 81 of the
Representation of the People Act, 1951. Those who challenged the election argued that
the nomination papers filed by the Appellant were defective, and therefore were
wrongfully accepted by the Returning Officer of the Election Commission. This case
comes within the purview of this paper as the Respondents relied on video and camera
arrangements to argue that the nomination papers were filed after the stipulated time
55
Id.
56
Id.
57
58
Id.
59
A.I.R. 2005 S.C. 752 (India).
60
2020 (5) CTC 200.
145
within which such papers should have been filed. The High Court in this case had held
that there was no requirement of a certificate under Section 65B(4), and hence the
evidence was admissible. Based on this evidence, the High Court declared the
Appellant’s election to be void. The Apex Court after perusing the existing statutory
framework, held that the conditions laid down under §65B(2) are to be fulfilled
cumulatively, and the same treatment is to be meted out to the conditions given under
§65B(4).61 The Court opined that §65B(1) clearly states that the admissibility and proof
of an electronic record solely dances to the tune of §65B, which means that Sections 62
to 65 are irrelevant for the same.
Upon completion of these observations the Court went on to address the “discordant”62
views that were taken in various other cases. Tackling the issue of secondary electronic
evidence, the Court held that such evidence cannot be led under Section 65, thereby
explicitly overruling Tomaso Bruno. It identified that the Court in Tomaso Bruno had
relied incorrectly on Navjot Sandhu, as that case had already been explicitly overruled by
Anvar. The Court then went on to also overrule Shafhi Mohammad for a multitude of
reasons. The Court was of the opinion that while the judgment of Shafhi Mohammad
largely referred to cases either before 2000, or having very little to do with §65B, the idea
that those not in possession of the device will find it hard to procure a certificate is in
itself entirely wrong.63 The powers of a Judge to order the production of a document,64
the Civil Court to issue summons to produce document,65 and a Judge conducting a
criminal trial to issue orders for production for documents,66 were all various avenues
available to those who do not have in their possession the device, to obtain the requisite
certificate through an application. Hence, as the rationale behind Shafhi Mohammad itself
was found to be incorrect, the judgment was overruled.
While holding that the conditions under §65B(4) were mandatory, the Court nevertheless
allowed for an exception. It found that if the person seeking to produce electronic
evidence under §65B, had not produced the certificate by reason that he was not in
possession of the device, he should then apply to the opposite authorities for the
certificate. If upon doing so, the authorities refuse to provide the same, the person
requiring the certificate can then approach the Court, at which point the Court could order
the production of the requisite certificate, by the person to whom it sends the summons to
produce such certificate. It is at this point that the person seeking the certificate has said
to have done all that is possible by him, to get the said certificate. Using two Latin
61
Id.
62
Id.
63
Id.
64
Indian Evidence Act, 1872, §165, No. 01 of 1872, INDIA CODE
65
The Code of Civil Procedure, 1908, Order XVI, Rule 6, No. 05 of 1908, INDIA CODE
66
The Code of Criminal Procedure, 1973, §91, No. 2, Acts of Parliament, 1973 (India).
146
maxims viz. lex non cogitadimpossibilia (the law does not demand the impossible) and
impotentiaexcusatlegem (when there is a disability that makes it impossible to obey the
law, the alleged disobedience of the law is excused), the Court stated that when the
person has done everything possible, and the production of the certificate is still not
within his power, then this requirement of the certificate may be waived.67
One of the major issues arising out of Anvar was the requirement of the contemporaneous
certification. This requirement was eased to some degree by Gorantyal. Here, the Court
asserted that although in normal circumstances there should be contemporaneous
certification, ample consideration should be given to cases where a defective certificate is
produced, or where the person responsible to give, the certificate has refused to do so. A
trial Judge in those circumstances, must summon the appropriate person and require them
to produce the requisite certificate. This is however subject to discretion exercised in civil
cases, in accordance with the law and with the interests of justice. The Court realized that
this relaxation of the contemporaneous requirement may have certain adverse impacts in
the realm of criminal law. Ensconced within the right to a fair trial, is the right for the
accused to be furnished with all documents the prosecution seeks to introduce, so as to
allow the accused to prepare a defense against them.68 Conversely, the Court took
cognizance of the fact that if the prosecution had mistakenly failed to file a document,
then the said document could be allowed to be placed on the record.69 Therefore the
Court came to the conclusion that all said and done, the introduction of the certificate at a
later point in time could be allowed as long as the hearing in a trial had not yet gotten
over.
Sundry Suggestions
Section 65B of the Indian Evidence Act, 1872 provides for a very wide ambit of evidence
that is to evidence under the provision. The scope of the provision spans “any
information contained in an electronic record which is printed on a paper, stored,
recorded or copied in optical or magnetic media produced by a computer”70. However,
this has led to certain problematic rulings. For instance, a computer-generated FIR was
required to be proved in accordance with §65B.71 Therefore, the seemingly straight-
forward solution would make the scope of §65B somewhat narrower. This would mean to
introduce the FRE standard of originality of electronic records, to include “any printout
or other output readable by sight”72. This would allow for such printouts and records to
fall within the ambit of primary evidence, and therefore could be authenticated through
67
Arjun PanditraoKhotkar vs Kailash KushanraoGorantyal 2020 (5) CTC 200.
68
Id.
69
Central Bureau of Investigation v. R.S. Pai (2002) 5 S.C.C. 82 (India).
70
Indian Evidence Act, 1872, §65B(1), No. 01 of 1872, INDIA CODE
71
State v. Surender MANU/DE/2281/2014.
72
FED. R. EVID. 1001(4).
147
individuals stepping into the witness box.73 This change could obviously be done either
through legislative amendments of §65B(1) or through judicial interpretation, the former
being the more desirable option. Justice Ramasubramanian was of the opinion that the
FRE and Lorraine solutions were indeed among ‘good’ solutions produced in other
jurisdictions.74 Given the fact that certificates in India do not guarantee reliability and
also do not disincentives people from submitting fraudulent certificates,75 there are
perhaps two measures to be taken here. The first measure would be to incorporate within
the certificate, details of the hash values, metadata and various methods including those
that may arise in the future. Hash values are of particular significance towards providing
authenticity to copies as even a slight alteration in the record leads to a change in the hash
value of the copy, from that of the original. A second measure could be to allow for other
forms of authenticating, as allowed for under the FRE.76
Gorantyal urged the legislature to re-look at §65B and made specific reference to the
confusion generated by the provision. However, as technology advances, various new
mechanisms of authenticating electronic records are going to be devised.77 The solution
then does not seem to be one of ‘uniformity’ but perhaps one of measured entropy. The
current form of certificate under §65B, which requires certain information such as that of
regular usage of computer and the information being fed in the ordinary course of
activities, have largely become redundant.78 Therefore, it hardly seems apposite to make
the certificate the be-all and end-all of electronic evidence. The best way forward
regardless of which model or framework is adopted by the legislature, would be to allow
for a variety of mechanisms to authenticate evidence.
Conclusion
India has seen great judicial turmoil with respect to the admissibility of electronic
evidence by virtue of the requirements of §65B. This oscillation of the judiciary arises
from the mandatory necessity of a certificate under the provision. This confusion for the
time-being has been largely resolved, with Gorantyal somewhat reducing the burden on
those required to produce a certificate. In the beginning, the Apex Court of India was of
the opinion that a certificate was not mandatory and cross-examination of witness could
be used to introduce electronic evidence. This leniency was swiftly put to rest in
Anvarwherein the Court mandated the requirement of a certificate under §65B(4). Once
again in a bid to appease the gods of justice, the Supreme Court in Shafhiallowed for
electronic evidence to be introduced without a certificate. Finally, Gorantyalhas brought
73
Arjun PanditraoKhotkar vs Kailash KushanraoGorantyal 2020 (5) CTC 200.
74
Id.
75
Vaidialingam, supra note 1, at 59-60.
76
Andrew Schupanitz& Jacklin Lem, Judges' Treatment of Federal Rules of Evidence 902(13) and
902(14), 68 U.S. ATT’YS BULL. 109, 112 (2020).
77
78
UK LAW COMMISSION, REPORT NO. 216:THE HEARSAY RULE IN CIVIL PROCEEDINGS, ¶3.14, 1993.
148
apparent parity by solving some of the issues that arose from Shafhi Mohammad and
Anvar.
The legislation that inspired §65B has already been repealed. The format of the same has
been extensively criticized by the UK Law Commission. Reasons ranging from
impracticality and tediousness to the apparent redundancy of such certificates,
certification in the manner contemplated by §65B has failed the test of time. Some
jurisdictions have rejected a special law governing electronic evidence, and allow for the
same to be provided within conventional frameworks. However, certification as a form of
authentication has not completely been forsaken. It continues to endure in newer forms
under the FRE. Each model adopted by the various countries surveyed in this paper, have
their pros and cons. The model that is to be adopted is up to the wisdom of the legislature.
It is only when such model is enforced can it be critiqued. This paper has simply put
forward certain principles and ideas that warrant introduction in the current regime. The
certificate with all its flaws cannot be forsaken, and at the same time cannot be made the
sole factor in adducing electronic evidence. The FRE in its model allows for a variety of
methods of authentication, as enumerated in Lorraine. The same should be provided for
in India. The law reasonably cannot be expected to keep abreast with each and every
development in technology. Therefore, the law then is expected to at least provide a wide
enough net that allows for modern means of authentication to be incorporated, all the
while ensuring appropriate standards of authenticating electronic evidence.
149
PENAL COUPLE: REVISITING THE RIGHTS OF VICTIMS

Vasundhara Kaushik1
Abstract
“Unless we fight for the victims and champion their dignity, we will not be able to
embrace fully our own dignity as human beings. Let us act now, tomorrow may be too
late”.
Dr. Justice. A.S. Anand, Fr. Chief Justice, Supreme Court.
Victim and Criminal have been termed as a ‘Penal Couple’ or ‘duet frame of crime’2,
reflecting a complementary relationship between a criminal and a victim. The theory of
Penal Couple has been extended to mean that the attitude and behavior of the victim
influences the acts of crime against the victims. While the only goal of the law is fixated
on the offender’s punishment and reformation, the victim is left with little or no
assistance from the administration. Time and again, the punishments of all kinds of crime
whether petty, serious, or heinous are amended in accordance with the frequency of
occurrence and gravity of such crime. However, the rights of the victims remain the
same. In fact, the rights of the victims were fairly developed in Ancient India, as
compared to the present Indian Criminal Justice System. For instance, Manu in Chapter
III verse 288 said that, “He who damaged the goods of another, be it intentionally or
unintentionally, shall give to the owner a kind of five equal to damage”. In ancient India,
injuries or loss caused due to offence committed by government officers were
compensated by his subordinates or by his family members. Again, traders or
businessmen who lost their property while traveling through the kingdom were also
compensated3.I propose, through this abstract, to contribute an article based on research
work pertaining to the needs of revisiting and amending the rights of the victim. It shall
include how the victims are ignored, the concept of a penal couple and victim
precipitation theory, and a small comparison between the present and ancient method of
compensation to the victims of a crime.
Introduction: Victim and Victimization
A victim is defined as a person who has suffered physical or emotional harm, property
damage, or economic loss as a result of a crime.4The term “Victims” mean all those
people who, individually or collectively, have suffered harm, including physical or
mental injury, emotional suffering, monetary hardship or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of criminal laws
1
Final Year Law Student, BA LLB(Hons), Faculty of Law, University of Allahabad.. The author can be
reached at Email: [email protected].
2
Kritika, Victims and the law: a socio-legal study, Ph.D. thesis, Maharshi Dayanand University, 11 (2012).
3
Rekha Rai, Right of Victim for compensation in India: A historical background, International Journal of
Law 31, 31 (2016).
4
‘Who is a victim of crime?’, Government of Canada (Sep. 14th, 2020, 02:09),
https://www.justice.gc.ca/eng/cj-jp/victims-victimes/rights-droits/who-qui.html.
150
operative within Member States, including those laws proscribing criminal abuse of
power.5 In general terms, victim refers to all those who are made to experience or suffer
injury, loss or hardship due to any cause and one such causes maybe a criminal act. Such
injuries and losses can be physical, emotional, mental as well as financial loss.6 Hence,
victim is any person or a group of individuals who have suffered as a consequence of the
wrongful, illegal acts of the perpetrator of a crime, either directly or indirectly, and
therefore, the aftermath of a criminal act conceives the concept of direct or immediate
and indirect victims. For instance, a person who has been sexually assaulted is the direct
victim of the crime and its family that is unfairly disgraced by the society is the indirect
victim of the incident of assault. In a case of Identity theft, wherein the person whose
credit card number has been stolen is the direct victim of such financial fraud and the
people who are financially dependent upon him or her are the indirect victims of the
wrongful act. The direct victim of crime is also known as the primary victim and the
indirect victim is known as secondary victim. Except for these two categories of victims,
there can also be a third category of victim, a tertiary victim7, in some incidences of
wrongful or illegal conducts. Such victim is a person or group of people, besides the
direct victim who suffers or is victimized as a result of the offender’s actions. For
instance, a communal riot broke between two communities in an area. Community X was
targeted and attacked by people belonging to Community Y where many of them were
murdered and their property was targeted. In such case, the people attacked are the
primary victim and the families of such people are the secondary victim but the people of
community X living in some other area where no communal riot took place are tertiary
victim as because of the riot, they live in fear of being targeted in their respective areas
and become victim of hate phobia towards their community. People belonging from the
former community would shun out the people of the latter community and avoid having
contacts with them.
Victimization is an unfair treatment that the victim and people dependent on it are made
to go through at the hands of the offender. It doesn’t only refer to any physical form of
unpleasant treatment but also to some kind of mental trauma to the victim, wherein it is
made to feel and believe that it is in a very bad position. In other words, victimization can
be considered as a process of a person becoming a victim or being victimized. There are
two categories of victimization, primary and secondary. Primary victimization is a
treatment directly resulting from a crime, for instance, A is hitting B on the head with a
stick. Here, the blow suffered by B as a result of being hit on the head by A is primary
victimization. Secondary victimization, which is also known as post crime or double
5
UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, art. 1.
6
Prof. N.V.Paranjape, Criminology, Penology & Victimology 763 (7th Ed. 2018).
7
Id. at 768.
151
victimization8 is treatment provided to the victim by the society. It can be said to be the
outcome of the primary victimization. For instance, a victim of sexual assault is treated as
a person of ‘easy virtue’ and targeted with immoral questions leading to character
assassination by various legal institutions. The person being a victim of sexual assault is
an example of primary victimization and the unfair treatment by the police authorities
while lodging a complaint can be considered as secondary victimization.
Ignorance of rights of the Victims
Victim Rights are such privileges provided to the victim of a crime which is written in
black and white, and which forms a guarantee of specific treatment by the government,
the community, the criminal and the criminal justice system towards the victim. They are
those legal rights afforded by the statutes that can be accessed and exercised by a person
only when it becomes a victim. However, even after these rights are in black and white
and legally recognized, they are still blissfully ignored by the authorities, mostly because
of their personal malafide reasons.
An act to constitute a crime needs to have mens rea (guilty mind or intent) to carry out
the act, and actus reus (physical act) the actual carrying out of the act. Thus, an act shall
become a crime only when a person or group of individuals have conducted a wrongful
act with a guilty or malicious intent and the act has been carried out physically, whether it
is an attempt to commit the offence or the offence has been successfully committed.
Thus, whenever there is a criminal occurrence, there are two or more parties involved. An
occurrence of a wrongful or illegal act cannot take place if there is either no
victimizer(offender) or victim or either of them. One cannot steal a watch of its own, one
cannot murder oneself, one cannot trespass on its own property, etc., In case the offender
has trespassed on a property or stolen an object of another, the owner of the same shall be
the victim.
According to Von Henting the relationship between the victimizer and the victim is very
intricate. The victim is the one who suffers and the victimizer, one who harms appear in
victimization in a close interpersonal relationship and the victim plays a determinant role
with the victimizer.9The victim shapes and mounds the criminal although, the final
outcome may appear to do one sides, the victim and criminal profoundly work upon each
other, right up until the last moment in the drama. Ultimately the victim can assume the
role of determinant in the event.10
Unfortunately, the victim’s role is limited to reporting the crime to officials who decide
whether or not to prosecute the case, how to proceed, and what type of punishment to
8
Dheerendra Kumar Baisla, Secondary Victimization under the criminal justice system, JLSR 62, 65
(2016).
9
Hans Von Henting, The criminal and his victim (1948) Yale university Press, New Haven.
10
Kritika, supra, 12.
152
recommend.11 The whole criminal justice system, be it the police or the court or any other
authority pay much less attention to the victim and put all their efforts only on the type
and amount of punishment to be awarded to the criminal. Even during the campaigns,
protests by the civil or human rights activists for the reform in criminal justice system,
the campaigners and protestors pay more than necessary attention towards the rights of
the accused while completely ignoring the rights of the victims. For instance when
violent protests emerge at a place by burning up the private properties and the protestors
are arrested, rounds of deliberations take place on why the protests took place, with what
were the protestors anguished, why weren’t their demands addressed, etc., all the while
ignoring those who had lost their properties in the protests and became victim of the
violent public chaos and aggressions. In the opinion of the advocates of these protestors,
amendments in criminal justice system means only the amount of relaxation and
strictness exercised in the terms of rights and punishments of the offenders. The victims
and their rights unfortunately receive only sporadic attention from the above activists and
other authorities. They believe that the perspective of justice for the victim is same as that
of the whole state, as a crime is an illegal act committed against the whole state.
Therefore, once the accused has been proven guilty beyond doubt and receives the
punishment in accordance to the offence he has committed from the court, the state
believes that the race against injustice has been won but unfortunately, they seem to have
been blinded by the due process of law that they are unable to see the hardships that the
victim and its family must have gone through and whatever other hardships might emerge
and follow. The question of whether or not the punishment has brought some meaning to
the life of the victim remains unresolved and is also easily avoided by the authorities,
time and again. Topics for debates is the increase in punishment for the criminal instead
of deliberating on the inclusion of new aspects in the rights of victims. Even in law
institutions, more preference is given to the rights of the accused instead of reading both
the rights of an accused and victim as same as none can have rights without the other.
The main reason for its partial failure is overemphasis in court proceedings on the right of
the defense of the accused, being his constitutional right under Articles 20, 21 and 22 of
the Constitution.12 The same articles of the Constitution have been interpreted in several
ways by the Hon’ble courts in providing assistance to the criminals and upholding their
human rights, yet the same are not implemented as effectively in favor of the victim, as
are the rights of the accused. Secondary victimization like stigmatization, facing
discrimination on the basis of being a victim, etc., are not addressed by interpreting these
Articles. During the process of the trial, concentration of the police authorities is vested
in providing the criminal with all assistance possible in order to give every occasion to
the criminal to defend itself, whereas, the same authority believes that by only lodging
11
Dipa Dube, Victim Compensation Schemes in India: An analysis, IJCJS 339, 339 (2018).
12
Justice D.S.Dharmadhikari, Human Rights of the Victims,The Practical Lawyer (Sep. 10th, 2020, 23:12),
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=7009.
153
the complaint and setting the criminal case in motion, the victims have received their
justice. The plight and rights of the victims suddenly disappear into oblivion in real
practice. They are dragged back from the oblivion only if and when they can play the role
of witness on which the verdict of the court depends.
Why is there a need to implement the Rights of the Victims?
The term Victim now no longer means or is confined to include only the witness of
prosecution which the prosecution describes the court to have suffered damages and harm
at the hands of the offender, but it now means an individual who has an autonomous
participation in the criminal case. The position of a victim is no more limited to only
reporting the crime but to be the focus of the whole criminal investigation. It has to borne
in minds of the authorities that the subject of the crime is the victim and it has to
conclude its investigation by carefully taking care of the rights of the victims, more than
that of a criminal. Thus, the modern definition of victim defines and increases the level of
participation that the victim is entitled to receive from a criminal case.
There is plethora of rights of the accused in the statutes which is also ideally enforced by
the authorities and which is timely amended with the advancement of the society and
adopts more humanistic approach towards awarding punishments. Time and again the
society is made aware of all such rights through various mediums as well. Even the focus
of the human rights activists, the studies based on various aspects or branches of
criminology, the projects adopted by various universities is limited to the prisons and
prisoners. The concentration of the criminal justice administration should have been
mainly on the safety and betterment of the victims, which has been an illusion till now.
Article 2113 and Article 1414 of the constitution of India bestows upon the state, an
obligation to protect the life of the people, to respect their freedom, to provide them
security, to maintain peace and tranquility amongst the people of the country, to forward
their interests, to safeguard them against any form of discrimination, to provide them
equal treatment in all matters, etc., and all such rights have been equally vested in the
victim of a crime or a wrongful act as well. A victim by no definition is different from the
common citizen of any nation and yet, it has been considered different from the people or
citizen of the country. The minute a person becomes a victim, the status does not mark its
exit or withdrawal from its rightful access to fundamental rights and safeguards provided
to it by the Constitution of India and any other legal statute. It occupies the same position
of a person as it did before the commission of the crime. The obligation on the state to
protect the victims also flow from Article 21 and Article 14 of the Constitution. Despite
all these provisions available for the benefit of every person, victims are discriminated as
soon as they file a complaint of a crime against them. The discrimination starts right from
13
India Const. art 21.
14
India Const. art 14.
154
the time they step out of their houses till even after the decision of the court. Especially,
victims of abuse of power face discrimination on larger scale. Victim of abuse of power
are people who have suffered at the hands of the people who were liable to protect them
and their interests like the abuse of children at child orphanages. For instance, if a person
lodges a complaint reporting a medical negligence against a medical officer or
practitioner in a hospital, it is denied further medical services from that hospital and other
doctors of the same hospital, it is denied medical services from nearby hospitals or
doctors who were associated with the doctor accused of medical negligence and as denial
of medical treatment from doctors, it may develop some serious health issues. They face
discrimination from the society as well as they are now labelled as someone of aggressive
and rebellious nature. The society, instead of approaching the victim with sympathy and
positivity, treats it as a dirty element that can pollute the rest of them and the victim of a
crime faces secondary victimization by way of stigmatization. Stigmatization is where
people of the society name a person by using undignified adjectives and malign the image
of the victim. Victims of crime should be protected from secondary and repeat
victimization, from intimidation and from retaliation, they should be able to access and
receive appropriate support to facilitate their recovery and should be provided with
sufficient access to justice.”15
The conditions of the victims and the situations that they are put in clearly portray the
criminal justice framework of our country. The legitimate and procedural arrangements
contained in our rule book have been very pitiful as opposed to the enormous sufferings
of the victims because of wrongdoing consistently.16One of the major challenges faced by
us in preventing victimization and protecting victims is that no specialized law related to
victimology has been established. No separate committee is setup in order to understand
the amendment of laws on the basis of reports of the committee on advancement of
victims. There is no systematic body for legal provisions defining the status, rights, role
and the decision of victims in the lawful framework nor is there any form of rules or
lawful arrangements that can provide a basis for process followed by the prosecution,
police, health professionals and judicial officers and in assisting the victims in lodging
their complaints with regards to the amazing improvements occurring in the domain of
victim justice.
The victim needs more assistance and help than the criminal, either immediately or soon
after the crime has been committed. It is an essential requirement to fanatically protect
the rights of the victims as similarly as the privileges provided to the accused are. The
protection of victim’s rights is needed more during the period interceding the commission
15
G.S.Bajpai, Duties of Frontline Professionals towards securing justice for victim: a manual, Centre for
Criminology and Victimology at NLU Delhi1, 4 (2018).
16
Anand Kakasaheb Deshmukh, Human Rights perspective of victim status in in Indian Criminal Justice
System a critical study, Ph.D thesis, Babasaheb Ambedkar Marathwada University 20, 58 (2016).
155
of crime and beginnings of preliminary hearings in the court. In the current criminal
justice framework, there exists no legitimate plan whereby a victim can seek assistance in
terms of legal and financial matters and to make sure about the punishment that is to be
awarded to the guilty and backing for the early rebuilding of his normal, ‘prior to
commission of crime’ life.17
Victim Precipitation, Penal Couple and degrade in status of a victim
Victim Precipitation is a controversial theory propounded by Wolfgang18 which stated
that in some cases, civil or criminal, the actions of the victim itself leads to the harm
suffered by it. It means that the criminal act is the result of the aggression that the victim
displayed which led to the wrongful or illegal behavior of the offender towards the
victim. The victim’s acts or conduct were of such aggravating or provoking nature that
resulted in its own suffering at the hands of the offender. Examples of victim
precipitation theory can be seen in cases of contributory negligence, volenti non fit
injuria. According to the theory of victim precipitation, the act of crime victimization
involves, at the very least, two people offender and victim and both of them are acting
and reacting before, during and after the incident. Identifying the roles based on this
theory does not lead to negative outcomes, however, it becomes controversial when it is
used to blame the victim and ignore the role of the offender. For instance, a drunken
brawl started between A & B because of B’s verbal altercation. B approached A with a
pistol with the intention of shooting at him and killing A. B fired a shot but missed A. A
pulled a knife out of his pocket and stabbed B to death. In the present example, although
B was the victim, however, from the viewpoint of the theory of Victim Precipitation B’s
participation in his own death should be analyzed. B was the one who started the verbal
altercation leading to a brawl, he charged himself towards A in order to shoot and kill
him that made A take the help of his knife in self-defense and therefore, B can be
considered as the initial aggressor who precipitated the act of murder by A on him.19
Similar to the theory of Victim Precipitation is the theory proposed by Benjamin
Mendelsohn focusing on the relationship between an offender and a victim, the Penal
Couple. Through this theory, Mendelsohn put forward the concept of ‘shared
responsibility’.20 The theory of ‘Penal Couple’ essentially holds that an act of crime
involves two partners, a criminal or the perpetrator, and a victim, where the victim lays
down the opportunity for the criminal to carry out an act of crime against the victim.
17
Dharmadhikari, supra.
18
Wayne Petherick, Victim Precipitation: Why we need to Expand Upon the Theory, Forensic Res
Criminol Int J (2017).
19
Victim Precipitation: Definition and Theory, Study.com (Sep, 12, 2020, 22:45),
https://study.com/academy/lesson/victim-precipitation-definition-
theory.html#:~:text=These%20are%20the%20primary%20components,failure%20to%20pay%20his%20de
bt.
20
Kritika, supra.
156
From the perspective of this theory, the victim is an equal participant in the crime and
should take some ‘functional responsibility’ for the crime.21
However, both the above theories are being glaringly misused by the criminals and
authorities, especially the police and developing a culture of victim blaming, which was
the source of idea behind the theory of Penal Couple. With the help of these theories, the
society has developed the habit of devaluing the victim out of the whole criminal
investigation. They aim to discredit the victim’s version of the story by simply
ostracizing the acts of the victim prior to the happening of the crime. “She was raped
because she walked home alone in the dark. I would never do that, so I won’t be raped.”22
Instead of addressing and recording the complaints of the victims, their first line of
question is aimed at the victim’s act and character, especially in cases of sexual assaults
or rape. Such treatment by the police towards the victims makes them lose faith in the
system. They regret their decision of making a complaint in the first place and feeling
demeaned by the very institutions that have been established for the purpose of protecting
them. They are filled with resentment towards the authorities and soon they develop a
feeling of bitterness as well towards the society. They feel out casted and isolate
themselves which most of the times leads either to complete deterioration of their mental
health or to the victims ending their lives. If a female has lodged a complaint against eve-
teasing, the questions asked would first target at her like whether or not she wore a proper
dress, was she walking, behaving ladylike and like this, the victim precipitation theory is
expanded and converted into victim blaming to make the victims suffer again, following
secondary victimization like discrimination, stigmatization, etc.,
Ancient India and Victim Justice
The laws on rights of victims, which is being frequently used by courts of different
countries and which is considered as a new modern phenomenon in India is actually not a
modern adoption rather occupies a significant place as a part of criminology in the
ancient period of our country.23The law in ancient times was developed and implemented
by keeping in mind the betterment of and compensation to the victims, not centralizing
on the form of punishment to be awarded to the accused or the convicted. It worked on
the principle of retribution, wherein the severity of punishment is equivalent and
proportional to the offence it had committed against the victim, and which was the only
recognized form of punishment. Infact, the victims were vested with complete right to
punish their offenders in the way they wish to, without any interference from the state,
the king, the society as none of them existed at that time, even during the advanced age of
21
M C Sengstock& J Liang, Elderly Victims of Crime - A Refinement of Theory in Victimology, NCJRS
(Oct. 2, 2020, 14:02), https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=74191.
22
Victim Blaming, The Canadian Resource Centre for Victims of Crime (Oct. 3, 2020, 13:38),
https://crcvc.ca/docs/victim_blaming.pdf.
23
Rai, supra, 31.
157
Rig Vedic Period.24 Ancient thinkers like Manu was well versed with the concept of
compensation to the victims of crime. Apart from payment (fine) to the king of the state,
Manu provided reparation to the victims. It was provided in ancient laws like Brihaspati,
Narada, and Yajnavalkya that the compensation provided to the victim shall be double
the amount of purchase money of the product with which it was deceived and in cases
where the sellers knowingly hid the defects of the good being sold or where sale of goods
was made through fraudulent methods, fine equivalent to the amount of such goods sold
was awarded as a punishment. It was provided in Manusmrirti and a few other Smritis
that awarding punishment through administration of justice was based on the Varna
system, adjudication of criminal cases was based on the status and class of both the
victim and the victimizer, i.e., higher or lower the varna, same shall form the basis of
amount of punishment and fine. Dharmashastras of Aapastamba and Baudhaayana
provided that redemption in form of fine in case where the murder of kshatriya was
committed, was 1000 cows and 1 bull while in case the victim was Sudra, it was only 10
cows. At the same time, Katyayana Smriti provided that if the offender is a kshatriya, the
penalty awarded to it for an offence would be double the amount of penalty to be
awarded to a Sudra for the similar offence.25
There can still be midway between duly following the law and achieving true justice. A
few methods of ancient times mentioned above can be utilized in the present criminal
justice system. A case should be filed and taken up in the court as is done in any fair and
legal situation. Proceedings should take place by strictly following the procedure laid
down and only when the guilt of the accused has been proven beyond doubt or is prima
facie from the pieces of evidence adduced, only then the victims can exercise their matter
of choice in the kind of punishment they would want their perpetrator to suffer or go
through. Although, the victims still cannot be given full discretion to decide on the form
of punishment to be awarded as they would be driven by their anger or other range of
emotions towards the perpetrator and might award the perpetrator punishment of more
intensity than the wrongful act itself yet, they can be provided with categories of
punishments. For instance, wife of murdered husband may not necessarily seek life
imprisonment or death penalty for the criminal. She could be given an offer that the
offender is released and pays for her family for the rest of their lives. In case the offender
belongs to a rich family or has too many properties, she could be given an option of both
conviction of the accused as well as transfer of property or properties in her name to
secure her family’s future as a substitution of loss of their bread-winner. It should be of
such a nature that it brings some solace to the family of the victim or the victim itself, if
he or she is alive and also does not exceed the intensity and degree of crime that was
committed and in response of which the punishment is being awarded.
24
Rahul Tripathi, Evolution of criminal Justice System in Ancient India, IJMRD 153, 153 (2018).
25
Debdatta Das, Legislative and Judicial Development of Victimology in India a critical appraisal,Ph.D
thesis, KIIT University 27, 30 (2014).
158
Legal Services Authority Act and the Rights of the Victim

Despite the existing criminal justice system seemingly being ignorant towards the rights
of the victims, it is found to be alive through some legislations and laws having as their
central focus, the condition of rights of the victims and making a sincere and candor
effort in restoring the balance. In case the victims are poor and lack the resources to
afford legal help, the state machineries along with the various district authorities, various
NGOs, voluntary social service institutions, legal aid societies and centers, shall, under
sections 8 and 11 of the Legal Services Authority Act, work in promoting competent and
free legal services to the lower classes of the society. The same is especially useful in
cases of victims of abuse of power as it can be safely observed that most of the times,
authorities are successful in abusing their position against the weaker sections of the
society. The statute promotes the ideals of justice- social, economic, and political that has
been promised to the citizens of India through the Preamble and that also forms the
foundation of Article 39-A of the constitution of India that aims at awarding justice on
the basis of equal opportunity. It further helps in uplifting the safeguards provided under
Articles 14 and 21 of the Constitution of India putting an obligation on the State to
proceed in furtherance of equality before law and protecting one’s life and liberty, and
ensuring the victims fundamental right to appeal in courts to receive remedies and restore
their dignity.
The above-mentioned laws sublimely depict the sincere intentions of the law makers that
have been offered to be exploited by the victims with the help of authorities mentioned
under section 8 of the act of 1987 yet, they are limited to occupying only theoretical
importance and fail to extend their reach to the needful victims, a major reason for the
same being lack of awareness amongst the common citizens.
Conclusion
There is a dire and an urgent need for giving a well-defined status to the victim of crime
under the criminal statutes. The role of the victim needs to be acknowledged by the
authorities, not at the disadvantage of the victim, but as a guiding factor in order to help
the victim receive justice in its true essence. Both the controversial theories of Penal
Couple and Victim Precipitation cannot be applied in modern time by civilized states and
societies. They are regressive for the modern criminal justice system. It puts the victim
under the microscope in an equivalent or more harsh level than the criminal, which
makes it suffer even more than it suffered by the act of crime or the criminal itself. The
interests of the victims, in terms of getting the criminal or offender punished needs to
occupy the central position, needs to be put at higher pedestal than that of the criminal,
and it can no longer be ignored or dominated by the social control of the State. If no
recourse is provided to the victim of a crime, it may develop a sense of contentment and a
159
tendency to take the laws in its own hands by seeking out revenge. Such instances are
highly likeable to disrupt the concept of Rule of Law which is essential for sustaining the
democracy, the people would no longer have any respect towards the judiciary, they
would have no fear of the law, and it would soon turn and run down the whole society
into chaos. The same concern was expressed by the Apex Court in P. Ramachandra Rao
v. State of Karnataka26, where it rightfully observed that the plight of the victims of crime
who, if left without a remedy might “resort to taking revenge by unlawful means
resulting in further increase in the crimes and criminals”.
United States Senator Mike Mansfield, in introducing a bill in the Senate to compensate
the victims of crime, said: "The point has been reached where we must give consideration
to the victim of crime - to the one who suffers because of crime. For him, society has
failed miserably.... Society has an obligation; when the protection of society is not
sufficient to prevent a person from being victimized, society then has the obligation to
compensate the victim for that failure of protection".27 The responses of victims towards
any framework of criminal justice and to society's endeavors to help them can't be
comprehended without, first, becoming familiar to, considering, and thereafter, analyzing
the impacts of wrongdoing on the victim. All such impacts are not limited to only the
immediate outcomes of the offence on the victims like injury, loss of property, or
monetary misfortunes. They can continue and interrupt into a large portion of the
territories of the victim's life like resulting in a rather negative change in the relationship
of the victims with its family members, neighbors, companions, or colleagues.28The
marital and other relationships of crime victim are also likely to be adversely affected
which may result in fatal consequences and even destroy its settled family life that
generally happens in case of women who are victims of rape or any other sexual
offence.29
Although the sanctity of the laws is upheld by following the due process of law, justice is
not achieved. The result of such proceedings is a pseudo-justice, meaning, an idea or an
illusion of justice only in the language of law and the State but not necessarily in the
interest of the victim. Access to justice is a phrase which is used to mean a victim(s) or its
family, relatives (direct and indirect victims) receiving justice for the wrong or the harm
suffered by it, either by a judicial or a non-judicial authority. This phrase, although used
quite effectively in research projects, papers, commissions, discussions and debates, etc.,
is yet to gain full adherence and inclusion in the criminal justice system. In order to truly
provide justice to the victims, it is necessary to understand and examine the victim’s
26
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 607.
27
V.V.Devasia, Victimology and the Role of Crime, Cochin University Law Review 221, 236 (1980).
28
Joanna Shapland, Victim Assistance and the Criminal Justice System,SPRINGERNATURE (Oct. 8,
2020, 21:31), chrome://history/?q=https%3A//link.springer.com/chapter/10.1007/978-1-349-08305-3_12
29
Ashpreet Kaur, Judiciary’s contribution towards evolving victimology,iPleaders (Oct. 5, 2020,
14:46)https://blog.ipleaders.in/victimology/
160
version of justice. The restoration of justice should be done in the perception of the
victim, rather than the society or state or even the laws.30“Justice” should not be limited
to the response to violation of State law but also violations of what could be defined as
human rights. It must be defined with a recognition of the centrality of the victim and the
social and cultural context of the victimization. The doing of justice should address both
the needs of society and the restoration of the victim.31 The government of a welfare and
democratic society like India, by its tendency, at one hand must serve and shield the
person from becoming victim, from secondary victimization, and simultaneously should
take care of the necessities and prerequisites of the victims.
Morality of a society can be understood from the way it deals with crime. It is not enough
to treat criminals with as much compassion as we can, especially when this liberal spirit
is carried to the excess of interfering with crime prevention as the courts have done." 32 It
is high time that the country strengthens its moral character by acknowledging the
victim’s interests in crime and showing more compassion and sincerity towards the
victim that is now gradually being suppressed by the human rights of only the criminals.
It is a weakness of our jurisprudence that victims of crime and the dependents of the
victims do not attract the attention of the law. In fact, the victim reparation is still the
vanishing point of our law. This is the deficiency in the system, which must be rectified
by the legislature.33
30
Id.
31
S. Chakrabarty, Victim compensation and support services a comparative study of criminal justice
system,Ph.D thesis, KIIT University 21, 36 (2017).
32
Pranav Kumar Kaushal &Priyamvada Kaushal, Justice should not only be done but also seems to be done
Victimization and Administration of Criminal Justice in India, IJLMH 1, 5 (2018).
33
Rattan Singh v. State of Punjab, AIR 1980 SC 84.
161
IMPACT OF MOB LYNCHING IN THE CURRENT WORLD

-Shrey Srivastav1
Abstract
The concept of Mob Lynching is pervasive in current world due to which the liberty of
humans is at greater risk. The act of manslaughter or giving the summary punishment
which is committed by the crowd (offenders) in the absence of judicial body is not justice.
Currently, the cases of mob lynching are increasing due to the circulation of fake news &
rumours on social media. WhatsApp has achieved the most prominent digital app for
slathering aversion, hoax news and cognitive indolence work unbelievably in tandem
with subsisting social faith to permit spiteful subjects to slather virally. The article also
attempts to analyse the crux of Social Media affecting perpetrators unjustly. Countries
like South Africa, Israel, Afghanistan, Nigeria, Mexico, Europe, United States of America
& India were dealing with the mobocracy. Discrimination on the ground of caste, race,
and religion is the primary causes of mob lynching. The delay & unpredictability incident
to legal trials leads to mob lynching. In this article, the emphasis given on the current
situation of the United States of America regarding law regimes. The article critically
analyses the law regimes of both countries India & USA. Suggestion to curb the mob
lynching problem has also discussed.
Introduction
The concept of Mob Lynching is pervasive in current world due to which the liberty of
humans is at greater risk. A person has the right to enjoy his free, his liberty & property
unless declared to be forfeited by the judgements of his peers or law of the land 2. This
issue is nowadays hampering the main cornerstone of liberty. There are some general
questions which always occurred in the minds of academicians. For example: What is
Lynching? Is it only a course of action to propagate vengeance against alleged accused or
Is it a punishment given to perpetrator without any judicial conscience? Another
question, Whether Mob Lynching can be categorised under Culpable Homicide? Whether
people misuse mob lynching in order to avoid any legal proceedings? The very fact that
humans are easily aided or provoked by the offenders directly or indirectly. Is there any
motive present in the mind of offenders? Many questions discussed below.
According to Black's Law Dictionary the word "Lynch law" means action done by an
unofficial person, organised bands, or mobs against the person who alleged of or distrust
of malfeasance, or draw them out of the incarceration, and foist summary damnation
without any judicial trial and the warrant or authority of law3
1
3rd Year Student, National Law University Odisha. The author can be reached at [email protected]
2
Rema Rajeshwari, Mob Lynching and Social Media, 14 YALE JOURNAL OF INTERNATIONAL AFFAIRS 14
(2019).
3
Lynch law, THE BLACK’S LAW DICTIONARY,(11th ed.,2019).
162
In the dictionary word, "Lynching" means the act of manslaughter or giving the
summary punishment which is committed by the crowd (offenders) in the absence of
judicial body or activity required. Generally, lynching occurs due to either great creating
provocation in the mind of offenders which is connected with Great distrust in the
preciseness and efficiency of Judicial System. Many Jurists firmly believes that the
"strong injustice or sectarianism" towards the alleged perpetrator combined with "weak
injustice or sectarianism" towards the alleged offenders is route cause Mob Lynching4.
Mob Lynching has been seen in many countries where there is discrimination on the
ground of caste, race, and gender is present. Countries like South Africa, Israel,
Afghanistan, Nigeria, Mexico, Europe, United States of America & India were dealing
with the mobocracy. The history of lynching started in the Mid-18th Century in the
United States associated with two men named Charles Lynch & William Lynch. In India,
the word Mob Lynching has aptly been fabricated as "horrendous acts of Mobocracy",
but there is neither any specific section in Indian Penal Code which deals with this crime
nor there is any legislation or an amendment introduced so far5.
In a current world, social media is a whole new world where cases of mob lynching
increased due to fake news, videos, images, most important hyper-pragmatic feigned
intelligence spawned profound fake media circulating in social media6. There is no
negating the aspect that red herring and deception are rapidly becoming a safekeeping
menace in India. WhatsApp has achieved the most prominent digital app for slathering
aversion, hoax news and cognitive indolence work unbelievably in tandem with
subsisting social faith form to permit spiteful subject to slather virally 7. It is very arduous
for Bye-laws to recognise the motives behind sharing malicious content. In short, the act
of Mob Lynching done with the use of Social media contains two types of offenders.
First, offenders who directly use force to give summary punishment, but they do not have
any specific motive. Second, offenders to the crime, the one who is responsible for
initiating the malicious content & sharing it. In this article, the emphasis given to sections
in the Indian Penal Code, which is close to the offence of Mob Lynching. The article also
attempts to analyse the crux of Social Media affecting perpetrators unjustly. Further, a
comparative study of provision relating to the offence of lynching from different
countries such as the United States of America.
4
Lynching,OXFORD ENGLISH DICTIONARY, (7th ed.,2012).
5
Tehseen S. Poonawalla v. Union of India &Ors.,(2018) 9 SCC 501 (India).
6
K. Deepalakshmi, Lynching Caused by Rumours Spread Through Social Media, The Hindu (19th July,
2018) https://www.thehindu.com/news/national/government-blames-social-media-for-the-spread-of-
rumours-that-led-to-mob-lynchings/article24459732ece. (accessed on 5th September, 2020).
7
Sunita Aron, Mob lynching: Who’s the villan? Social Media or trust deficit, Hindustan Times (4th
September, 2019)https://www.hindustantimes.com/opinion/it-is-time-to-act-against-mob-violence-
firmly/story-0Is4xO0noibPzRG3fb6JDK.html (accessed on 5th September, 2019).
163
Mob Violence
The first occurrence of the administration of lynching was in 1763, when the pioneers in
Pennsylvania exasperated at the pacific policy embraced by the Quakers towards the
Indians who committed individual atrocious acts, mobbed and killed several Indians 8.
Assembles to do violence to perpetrators, the object of its aversion or acrimony, and
sometimes by people amalgamate together under some name as "Vigilantes" who,
because of the dearth of law, or because the laws are not administered at all, undertake
themselves in order to clampdown the crime & mete out such penal as they ponder
necessarily to bring about the desired results9.
The punishment took various forms, such as lashing, cutting off the perpetrator's arms or
mutilating him. Earlier, the mob acts in the heat of passion, wrath & without even a
pretence at observing the forms of law10. They frequently assemble, do their work &
disperses in the space of an hour or two. Sometimes in the mob, there is one leader who is
so obnoxious. An attempt has been made to justify Mob Lynching upon various grounds
all the world. Some of them are as follows.
Firstly, discrimination on the ground of caste, race, and religion are the primary causes of
Mob Lynching. Secondly, the delay & unpredictability incident to legal trials11. Thirdly,
assuming a scenario where the perpetrator has been justly apprehended, convicted and
sent for the imprisonment, there is no assurance that some obliging Governor or
bureaucrats will turn him loose at the solicitation of a political friend. In the past few
years, pardoning power has been so generally exercised, and the chances of early release
from the punishment make mobs more angry and malicious. Fourthly, Inefficiency of the
average police forces.
If any malicious content discriminating religion, or harming the reputation of political
parties have been shared by a person (perpetrator) via WhatsApp and it went viral then
offenders who were provoked by the contentious images, videos, fake news & rumours
decided to lynch, that perpetrator who is responsible for the initiation of malicious
content. The seeds of Mob Lynching I observed were routed in harmless enough soil;
person, family zone prepare them to tackle social media circulated rumours & vivid
threats at face value12.
8
Chas C. Butler, Lynching, 44 AMERICAN CRIMINAL LAW REVIEW 200 (1910).
9
Vigilantes, THE BLACK’S LAW DICTIONARY,(11th ed.,2019).
10
PTI, Junaid Lynching: Main Accused ‘Confessed’ to Crime, Say Police (The Hindu, 9 July 2019)
https://www.thehindu.com/news/national/other-states/junaid-lynching-main-accused-confessed-to-crime-
say-police/article19245913.ece (accessed on 5th September, 2020).
11
Nathan Hall, Hate Crime (2nd ed., Routledge 2013).
12
Supra note 5.
164
Indian Legal Regime

Currently, In India, there is no specific law & punishment related to Mob Lynching but
there as some sections in Indian Penal Code under which the word lynching has been
used. Some of them are as follow:
1.13 Unlawful Assembly
A throng consisting of five or additional people may turn wild & which affects the
people, belongings, or society's demand. Such a rebellious assembly is titled as an
"Unlawful Assembly"13. Whoever, being known of actions which evince any throng an
illegal assembly, deliberately ally that throng, or remains in it, is said to be a fellow of an
unlawful assembly14. "An Assembly" which is lawful becomes unlawful the moment
when the members of that assembly have an attempt to injure any person with an
ordinary object. There are three essentials of an Unlawful Assembly. Firstly, there must
be at least five or more persons. Secondly, an assembly must have an ordinary object15.
The members of an assembly must contain the ordinary object to injure the person,
property. Thirdly, the ordinary object must be to execute one of the five criminal offence
stated in the sections.
Every member is liable for an offence of Unlawful Assembly when members of that
assembly attempted to execute malpractices punishable through Indian Penal Code with
ordinary object16. The person shall be penalised with the damnation of either category for
a term which may elongate to six months, or with fine or with both17. In Dharampal v.
State of UP18, it was decided that the mere presence of a person in an assembly does not
incriminate him to be the sole member of an Unlawful Assembly unless it is shown that
he had done something or omitted to do something which has the direct connection to
apprehension & make him a member of the assembly.
The meeting in conjunction with five or other persons, to the disruption of the social
comfort and with the purpose of collaborating in the cogent & ferocious prosecution of
some illegal undertaking. If they take place towards the conduct of their intention, it
embellishes a rout; and if they put their fabrication into genuine prosecution, it is a riot.
The standard object is the kernel of the crime. They should all be clued up of it and
accord in it. This offence is quite similar to Mob lynching, but in Mob Lynching the
13
The Indian Penal Code, No. 45 of 1860, INDIA CODE (1993), §141.
14
Achhey Lal v. State of Uttar Pradesh (1978) 3 SCC 526 (India).
15
Sheikh Yusuf v. Emperor AIR 1946 Pat. 127 (India).
16
Ram Babu v. Emperor AIR 1955 Pat. 381 (India).
17
The Indian Penal Code, No. 45 of 1860, INDIA CODE (1993), §145.
18
Dharampal v. State of Uttar Pradesh AIR 1975 SC 1917 (India).
165
number of persons is not fixed & they don't have an ordinary object. All they want to
show their anger & set an example of deterrence in society19.
1.14 Rioting
Riot in criminal law, a vicious crime against public order containing three or more person
similar to that of the Unlawful Assembly. Riot entails a meeting of offenders for an
unlawful motive. The phenomenon is far-reaching & welcomes a voluminous reach of
gang conduct, from a deadly skirmish between picketers &strike-breakers to the manners
of a roadside gang. Whenever vigour or brutality is applied by an illegitimate gang, troop,
or by any comrade thereof, in the execution of the standard object of such gang, each
comrade of such troop is charged with the offence of rioting20.
The expression "riot" means a society disruption including (1) an act or acts of brutality
by one or additional people part of an assortment of three or additional people, which act
or acts shall initiate an explicit & presents a hazard, or shall end in, harm or affecting the
belongings of, any other person or to the person of any other independent or (2) a menace
or menaces of the execution of an act or acts of brutality by one or additional people part
of an assortment of three or more persons having, separately or jointly, the capability of a
sudden commission of such menace or menaces, where the implementation of the warned
act or acts of brutality would initiate a clear and present danger of or would end in,
destruction or inquiry to the belonging of any person or to the person of any other
individual21.
A person is culpable of riot if he engages with five or others in the route of unsystematic
execution: (a) with the intention to perform or encourage the execution of a crime or
misdemeanour; (b) with intent to stop or constrain official action; or (c) when the actor or
any other participants to the expertise of the actor uses or idea to use a roscoe or other
lethal weapon22. The person culpable of rioting, shall be penalised with the damnation of
either narration for a period which may lengthen to two years, or with fine, or with
both23.
In-State of M.P. v. Sughar Singh & others24 it was stated by Hon'ble judges that Acquittal
by High Court mainly on the ground that there was an inconsistency between evidence of
eye-witnesses and medical evidence. Prosecution witnesses supported the cause of
prosecution with regard to the incident as also the participation of the perpetrator. The
High Court committed error in ordering acquittal on the ground of inconsistency in
19
Deputy Legal Remembrancer &Ors. v. Matukdbari Singh &Ors. AIR 1917 Cal. 687 (India).
20
The Indian Penal Code, No. 45 of 1860, INDIA CODE (1993), §. 146.
21
Kari v. State of Bihar AIR 1952 Pat. 138 (India).
22
Mohd. Ankoos v. Public Prosecutor, High Court of Andhra Pradesh AIR 2010 SC 566 (India).
23
24
State of M.P. v. Sughar Singh & Others (2010) 15 SCC 96 (India).
166
medical evidence and ocular evidence. To that extent, the decision of the High Court
deserves to interfere with that incident took place all of a sudden.
1.15 Culpable Homicide
The term "homicide" means the killing of human beings. The crime of manslaughter is
also termed Culpable Homicide. It is mentioned under Chapter XVI of Indian Penal
Code, 1860. When a person without any mala fide intention to kill but having knowledge
that his act may injure the victim results in death, then the person is charged with the
Culpable Homicide25. The mere appearance of the appellant in the crowd at time the
lynching, would not guide to any deduction that the appellants had expertise or purpose
to execute unlawful acts26. Goading need not surely be constrained to manual or oral
strike, but there could be that small class of extraordinary situation, then the situational
goading gives rise to the execution of a crime, and even though the is comparatively
slightly familiar in criminal jurisprudence, it is not alien to it27.
Exploring India’s Situation

The first case of Mob Lynching was seen in 2006 in Bhandara district of Maharashtra.
There is discrimination on the ground of caste found the leading cause of Mob Lynching.
There was a Dalit family who has a land dispute with many people living in the same
village. One day, 50 villagers barged into the victim house, a 40-year-old woman along
with her 17-year-old daughter were undressed, assaulted and marched unclothed, raped
various times & murdered by Hindu Mob led by men of Kunbi caste goaded by the entire
village. The head, not the family luckily survived, watched all the incident of lynching
and rape lying low behind a bush. The head of the family approached the Court for
justice, but the Court was unable to exercise justice because the whole village was
involved in this incident and there is no specific punishment for the crime committed by
Mob in India so far28.
Another incident in 2007 occurred in Bihar on the ground of caste discrimination. In a

state where casteism, feudalism, patriarchy and communitarian allegiance are highly
active & interlinked. On 14th September 2007, 10 men were killed by the mob when they
were trying to rob some houses in Dhelpurwa village of Vaishali district. This incident
was preceded by the beating up of a supposed chain snatcher by the mob. From then on,
beating & lynching of "victim" have become regular. It is this social reality which has
25
26
Tribhuvan Nath v. State 1995 JCC 167 (India).
27
Arnold H.T. Sangma, Mob Lynching: An Uprising Offence Needed to be Strenuous under the Indian
Legal System, 2 INTERNATIONAL JOURNAL OF ACADEMIC RESEARCH & DEVELOPMENT 30, 31 (2017).
28
Shrasti Jain, The Dynamics of Lynching in India: Is it a New Normal?CHANAKYA NATIONAL LAW
UNIVERSITY LAW REVIEW 8 (2019) 245.
167
given an upper hand to the dominant caste to engage in heinous crimes against them. The
recent Lynching of the Dalit here indicates their vulnerable & deplorable state and also
the reassertion of the dominant caste of Bihar. One of the possible reasons cited by the
villagers is that the kurariars made the mistake of eating in the same 'pankthi' (seating
arrangements) with the backward caste Yadava which triggered the conflict resulting in
the lynching. In Bihar, Lynching was a clear case of revenge by the dominant castes29.
In Girish Chandra Sharma v. State of Bihar30 - On 30th November, Informant was a

tenant in the house, and her eight-year daughter Soni Kumari was sexually assaulted by
the landlord who is the petitioner. When the Informant got to know about the incident,
she made a hue& cry, as a result of which several people of locality assembled and
assaulted the petitioner. There was a clear case of Mob Lynching.
In Tehseen S. Poonawalla v. Union of India31, it was clearly said Lynching & Mob
violence are sneaking menace that may generally take the form of a Typhoon-like
monster as confirmed in the wake of the increasing wave of occurrence of a repeated
model by a frantic crowd across the country abetted by bigotry and mislead by the
passage of false news & rumours. There has been a hapless devotion of twirling
mobocracy and agonised dreadful dispensing a ghastly & gruesome canvas that impel
aspersion as to whether the public of great freedom like ours has astray the benefits of
forbearance to succour a various culture. Besides, observer passivity, immobility of the
silent observer of the scene of the offence, hebetude of the law-imposing mechanism to
stop such offence and nip them in the bud and grandstanding of the occurrence by the
offenders of the offence involving in the social media irritates the whole trouble. An
attitude of macabre bigotry is totally unbearable & agonisingly dreadful.
In the Shahrukh Cow Slaughter case32 where a 20-year-old Shahrukh who fagged in
Dubai & had come home for Eid was brutally beaten to death by the mob. On 28th
August 2018, the eve of him coming back to Dubai, Shahrukh went mislaying. Next day,
news of his death arrived at the door of his house. After inquiry, it was found that four of
his neighbours gather together to find the cattle and after finding the Cattle they were
forcefully taking the cattle home in the meantime people thought they were taking for
Halala. Some people started garnering people & telling them about Cow slaughtering,
which is against their religious beliefs. All the four men were brutally lynched by a mob
for no reason. Three of them luckily escaped from the incident, but Shahrukh was the
29
Prakash Louis, Lynching in Bihar: Reassertion of Dominant Caste, ECONOMIC & POLITICAL WEEKLY
REVIEW Vol 42, No 44 (2007) 26, 28.
30
Girish Chandra Sharma v. State of Bihar 2015 SCC Pat. 5151 (India).
31
Supra note 5
32
Vidisha Bajaj, The Crime Vanishes: Mob Lynching, Hate Crime & Police Discretion In India, JINDAL
GLOBAL LAW REVIEW (2020).
168
remaining person at the incident. They were beating & lynching due to which he
succumbed to death.
Another case of Mob Lynching occurred in Gorodoba village of Assam. On 5th August
2020, there is a celebration all over the country due to the establishment of Ram statue in
Ayodhya, Uttar Pradesh. In Assam, some people, including Rajan, started a parade on his
motorbike and planned to have a visit to every temple present in that locality. There is
another village where the majority of people there were Muslim & in that village, there is
a famous temple of Shiv Parvati. So, they decided to visit there. They smoothly went
there, but while returning to their village, they were blocked by 300 angry people. They
all were angry with the action of going to the temple & started beating & lynching all the
people, including Rajan. Somehow, Ranjan escaped from the situation; all the motorbikes
were destroyed by the mob. Ten men were restrained by the mob & they were
continuously beaten. Another day, they were released by the mob. The horrendous act is
agonisingly painful for any human being living in India.
On 11th September 2020, 8 workers of Shiv Sena attacked a retired Navy official for
allegedly forwarding a satirical cartoon on Maharashtra Chief Minister Udhav Thackeray,
Sharad Pawar & Sonia Gandhi. The eight people can be seen brutally assaulting in CCTV
footage. These recent acts make me realise that if there is no remedy available to victims
or nats soon, then there will be a greater risk of a person's liberty & access to justice with
equity & conscience.
Role of Media
Today most of the world is connected through social media which plays a crucial role in
the development of Mob violence. It is projected that 10% of real-life violence is caused
by media. The malicious theme is outspread online by vigilantes in order to create hate &
to publicise political ideology33. These Vigilantes nowadays operate on social media such
as WhatsApp, Facebook, Instagram, etc., and the close-nexus of distinctive ties it
accelerates has delivered vigilantes a rostrum to attain their targets. There is an
unwavering & purposive venture on social media rostrum to sabotaging person's sense of
protection through the propagation of false news & rumours the relentless trouble is that
it is immensely arduous for bye-law imposition to realise either who is accountable, or
what their motives are34.
33
Chinmayi Arun, On WhatsApp, Rumours, and lynchings, ECONOMIC & POLITICAL WEEKLY REVIEW Vol.
6 No.6.
34
M J David, The Science of Fake News, SCIENCE (Vol. 359 No. 6380) 1094.
169
The evil part of social nexus is its proclivity to enable its users, very often under the mask
of anonymity, to activate recognition-defence channels & discharge an explosion of
temper. Fake news is dormant to incite rage & disturb public peace. Accidentally in
India, there is an immoderate emphasis on the uprightness of political transmission
allowed by digital rostrum, at the cost of neglecting the influence these rostra have on the
diurnal creature of mediocre society. There must be a keen strive on the part not only of
the company but also of end-users and native society superiors on rostrum answerability
and digital literacy35.
Lynch Law in United States of America
The mob violence is increasing in the United States of America day by day. Statistics
dealing with Mob lynching in this country are challenging to obtain. Census Office do
not furnish them. There no specific definition of lynching is mentioned under any act of
the United States of America36. The typical denotation of lynching is provided by the
National Association for the Advancement of Coloured People in some ingredients must
be obligated.
More than one thousand men & women have been lynched in the USA during the last ten
years. The report of Mob Lynching is only obtainable in a disjointed, often incoherent,
sometimes irresponsible, and always unsatisfactory manner. Local pride will sometimes
attempt to suppress them. Political & social reasons will contribute to distort &
misrepresent the incident37. USA's national crime is lynching. It was sufficient to brawl
the foe from without; woe to the foe within! But the manes of crowd process appeared to
have bolted itself upon the ungovernable categories, and the ghastly procedure that at first
was involved in proclaiming justices was made the cover-up to cause retaliation & engulf
crime38.
In the USA, there is a confederate law which covers cases of mobocracy where the
sufferer is subject of alienate power. Police were launching smoke grenades in order to
clear the angry mob. Sporadically, mob were not cleared by smoke grenade then they
arrest some people in order to make deterrence among the mob. In some situation, federal
police are easily dominated by mob, then it is challenging to pacify the mob. Some of the
offender present in the mob was beaten by federal police39. The USA's House of Senate
has overpoweringly voted to make lynching a confederate despise offence in the country.
35
NarrainSiddarth, Dangerous Speech in Real Time: Social Media, Policing & Communal Violence,
ECONOMIC & POLITICAL WEEKLY REVIEW Vol. 52 No. 34.
36
Thomas v. State of Arizona 1958 US SC 83 (USA).
37
Moore v. Dempsey, 1923 US SC 59 (USA).
38
S.S. Rane, Impact of Mob Lynching Phenomenon on Well-Being, INTERNATIONAL JOURNAL OF
MANAGEMENT & SOCIAL SCIENCES Vol. 14 pp. 87, 93.
39
Duane Mowry, Mob Law in America, 16 GREEN BAG JOURNAL 524 (1904).
170
The majority is 410- 4 minority. The Senate passed in 2018. The Emmett Till
Antilynching Act is termed after a 14-year-old Chicago boy who was murdered while
touring family in Mississippi in 1955.
Suggestions to Curb the Problem
In India, to curb the problem of Mob Lynching, some of the preventive measures can be
taken, some of them are mentioned below:
Firstly, the state government shall designate a senior police officer as Nodal Officer in
every locality. Officers may form a distinctive task force so as to acquire intellect reports
about the mob who are likely to execute such offence or comprised of outspreading
despise speeches, exasperating assertion & rumours. Regular meeting with force is must
in order to recognise the appearance of proclivities of vigilantism, mobocracy or
lynching. Efforts should be made by force to exterminate the bellicose habitat against any
society or race. It is the responsibility of police officer to root a mob to disseminate, by
using reasonable amounts of power or force40.
Secondly, for village areas, where mob violence, lynching & vigilantism is common,
special teams must be formed & give them knowledge of fake news, rumours,
misinformation, and disinformation & tell them how to recognise low-plausibility theme
on social nexus rostrum. That newly trained officer was supposed to go door to door in
order to interact about the same. This measure gives the inhabitant a sense of well-being,
teaches them self-regulation while using social media41.
Thirdly, the Central & State government should make an official broadcast on radio,
media & television about the crime of lynching & mob violence which invites severe
consequences under the law. It is the duty of the Station House Officer, to provide tight
protection to the victim or nats& ensure that there is no further harassment caused.
Fourthly, neither any legislation have been passed, nor any amendment was made in
Indian Penal Code. Judiciary must take crime seriously and set a capital punishment for
people who involve in Mob Lynching. Victim's family shall be provided by full
protection as well as compensation under Mob Lynching scheme or policy. Free legal aid
must be provided to the victim in order to have justice with equity & conscience.
Conclusion
Mob Lynching has been seen in many countries where there is discrimination on the
ground of caste, race, and gender is present. Countries like South Africa, Israel,
Afghanistan, Nigeria, Mexico, Europe, United States of America & India were dealing
with the mobocracy. In short, the act of Mob Lynching done with the use of Social media
40
Charles H. Watson, Need of Federal Legislation in Respect to Mob Violence in Cases of Lynching of
Aliens, 25 YALE LAW JOURNAL 561 (1916).
41
Supra note 4.
171
contains two types of offenders. First, offenders who directly use force to give summary
punishment, but they do not have any specific motive. Second, offenders to the crime, the
one who is responsible for initiating the malicious content & sharing it. An occurrence of
Mob Lynching through Social Media is at Zenith in India. Currently, In India, there is no
specific law & punishment related to Mob Lynching but there as some sections in Indian
Penal Code under which the word lynching has been used.
There no specific definition of lynching is mentioned under any act of the United States
of America. The typical denotation of lynching is provided by the National Association
for the Advancement of Coloured People in some ingredients must be obligated. The
report of Mob Lynching is only obtainable in a disjointed, often incoherent, sometimes
irresponsible, and always unsatisfactory manner. In the USA, there is a confederate law
which covers cases of mobocracy where the sufferer is subject of alienate power. The
USA's House of Senate has overpoweringly voted to make lynching a confederate
despise offence in the country.
To curb the problem of Mob Lynching, some of the preventive measures can be taken.
Officers may form a distinctive task force so as to acquire intellect reports about the mob
who are likely to execute such offence or comprised of outspreading despise speeches,
exasperating assertion & rumours. Efforts should be made by force to exterminate the
bellicose habitat against any society or race. Free legal aid must be provided to the victim
in order to have justice with equity & conscience.
172
STRIDHANA IN CONTEMPORARY HINDU SOCIETY: A CASE OF

ECONOMIC EMPOWERMENT
Ruchir Joshi1
Abstract
Empowerment is a process through which women can gain the strength to oppose the
traditional prejudices that deter their development. Equality can only be said to be
achieved when women have the ability to challenge the existing power relations that
place them at the subjugation of their male counterparts. This journey towards equality
and empowerment will be sped up if women can achieve economic independence.
Awarding Land titles to women is one of the ways in which they can attain economic
independence. Property rights act as a mechanism for women to gain the respect of their
spouses and family. In cases where women are not landowners, they are at a higher risk
for mistreatment.
The overarching aim of this research article is to analyze the concept of Stridhana in
light of Women’s economic empowerment. The article discusses the concept of Stridhana
and also analyses the relationship between women’s property rights and their economic
empowerment. In this article, the researcher aims to analyze the contours and
ramifications of cessation of Stridhana, in light of the subsequent introduction of the
concept of Absolute Ownership under the Hindu Succession Act, 1956 (HSA). The
research article argues that while framing the HSA, the law makers had the opportunity
to create a new customary practice that would promote equality, this however was
squandered by the discriminatory aspect of Section 15 of the Act. The article also seeks to
argue that, it would have been in better interest if attempts would have been made to
achieve equality through the existing concept of Stridhana and its expansion.
Keywords – Stridhana, empowerment, women, property, Hindu. Hindu Succession Act
Introduction: Concept of Stridhana
During the British Era, a Hindu Woman had two kinds of properties: Stridhana and
Woman’s Estate. Literally, the word Stridhana means women’s property and is derived
from two words stri- which means woman and dhana- which means property.2
As per Smriti Kars, in order to ascertain the nature of the property as Stridhana, two
factors are to be taken into consideration: a) Source from which the property is acquired
1
B.A.LL.B.(Hons.) at National Law University, Nagpur. The author can be reached at
[email protected]
2
DF MULLA, PRINCIPLES OF HINDU LAW 157 (Sunderlal Desai ed., 16d ed., 1990).
173
by the woman. b) Woman’s status at the time of acquisition (here it refers to the fact that
whether she is a widow, married or unmarried).3
Manu enumerated six kinds of properties to be included within the ambit of Stridhana,
namely,
- “gifts made before the nuptial fire,
- gifts made at the bridal procession,
- gifts made as a token of love,
- gifts made by the father of the woman,
- gifts made by the mother of the woman,
- gifts made by the brother of the woman.”4
With the rise of various schools of Hindu Law, the idea of Stridhana began growing its
legitimate and exacting significance, conceding woman more rights to certain property.
If we refer to this Sanskrit saying "Na striswatantramarhati-"Swatrantam Na
KachitStriyah", it meant that “women were unfit for any independent existence and was
the rule of ancient Hindu Society.”5 Moreover, a woman was never indisputably the
proprietor of her Stridhana, as according to Manu “a wife along with her property
belongs to her husband.”6
It has been noted that there have been several challenges plaguing an enquiry into what
establishes as Stridhana. This is mainly because of the fact that none of the Smriti Kars
have given any comprehensive definition of Stridhana.7 For instance, Katyayana differs
from Manu, and interprets the definition of Manu to include “gifts made before the
nuptial fire and at the bridal procession by strangers” within the ambit of Stridhana. 8 The
scope of interpretation is further widened by Vijnaneswara in Mitakshara, who includes
“property obtained by inheritance, purchase, partition, seizure and finding”.9
Stridhana is a concept that originated in ancient India whereas the estate of the Hindu
woman was a concept developed by the British judicial administration in India. The
limited rights a Hindu woman had to her property were lost in the event that she died,
remarried or was adopted in which case the property was transferred to the next successor
of the original owner.10
3
Archana Mishra, Devolution of Property of the Hindu Female: Autonomy, Rationality, and the Law, 29
INT’L J.L POL. & FAM., 149, 150 (2015)
4
DF Mulla, supra note 1, at 157.
5
AM BHATTACHRJEE, HINDU LAW AND THE CONSTITUTION 120 (2d ed. 1994).
6
Debarati Halder, K Jaishankar, Property Rights of Hindu Women: A Feminist Review of Succession Laws
of Ancient, Medieval and Modern India, 24(2) JOURNAL OF LAW AND RELIGION, 663, 665 (2008).
7
Leepakshi Rajpal, Mayank Vats, Stridhana: A Critical Approach, 7(1) IJRSSH, 83, 89 (2017).
8
J.D. MAYNE, HINDU LAW AND USAGE 847 (15d ed. 2006).
9
Id. at 847.
10
Kuldip Mahato v BhulanMahato, (1995) 2 SCC 43 (India).
174
Over time, Stridhana evolved into two separate types.
The first one i.e. ‘Sauadayika’ includes property which a married woman inherits from
her parents, receives as a gift from her natal or marital family before the holy fire and
post the bridal possession and also that which she acquired through her own efforts
before and after the end of her marriage. This property she is entitled to dispose of as she
pleases including but not limited to a will, gift or sale deed. A husband could use this
property only in times of extreme distress and was morally obligated to reimburse the
wife.11 The Bombay High Court in the case of Tukaram v. Gunaji,12 restricted this use of
property only to husband and the property could not be availed by any of his creditors.
The second type is known as Non-Sauadayika which is acquired jointly with her husband
and over which she has limited rights as her husband too has powers to use it. This
includes gifts received during the marriage and property which she attains through her
own efforts as a married woman.13
Succession of Women’s Property under the Mitakshara Law

Under the Mitakshara Law, the devolution of woman’s property i.eStridhana, upon her
heirs is based on the principle of propinquity. For the reasons of succession under
Mitakshara Law, property is divided into two categories: Shukla and Non-Shukla.
The heirs to the Shukla property under Mitakshara are: “the full brothers, in their absence
of mother and in her absence the father of the intestate”.
However, the heirs for the Non-Shukla property in order are: (i) the unmarried daughter,
(ii) the married daughter who is not provided for, (iii) the married daughter who is
provided for, (iv) daughter's daughter, (V) daughter's son, (vi) son and (vii) son's son.14
The fundamentality, along these lines, of Stridhana is not in the mere conferment of
ownership but the control that women exercised on Stridhana.
Hindu Succession Act, 1956: The Concept of Absolute Ownership under Section 14.
The enactment of Hindu Succession Act 1956, annulled the idea of Stridhana and
introduced the concept of absolute ownership right for women. The concept of absolute
ownership, conferred property rights on woman regardless of the nature of the same,
11
Mayne, supra note 7, at 847.
12
Tukaram v. Gunaji, (1871) 8 Bom HC (ACJ) 129.
13
Mayne, supra note 7, at 849.
14
Mayne, supra note 7, at 855, 856.
175
“possessed as well as acquired by them.”15
It was clarified by the Hon’ble Supreme Court in the case of Pratibha Rani v. Suraj
Kumar16 that “mere joint holding by a husband of the ‘Stridhana’ property did not
constitute any legal partnership or co-ownership between the husband and his wife.” The
court was of the opinion that a suit can be brought by the wife under Section 27 of the
Hindu Marriage Act, 195517, if the Husband does not return the Stridhana to his wife. The
court has explicitly stated that the absolute ownership of woman’s property lies with her,
no matter the property was acquired after or before the Act.18
Why the Hindu Succession Act turns out to be discriminatory?

Hindu law originally designates the men as primary property owners with women usually
delegated to a submissive and dependent state. After the Hindu Succession Act of 1956, a
Hindu woman was finally able to become the owner in toto of property in her possession
which had come to her as a result of a pre-existing right. In the act, all possible definition
of Stridhana were explained and were decreed to be equivalent to the term property.19
The ultimate aim of this step was to achieve equal status for women and to lift them up
from a subservient economic position in society to one where they had the complete
freedom to control the properties they held as owners unimpeded unnatural constraints
placed on their ownership rights to bring about a systemic subjugation of women for the
benefit of the male sex.20
However, it is to be noted that the order succession for males and female under the
Section 15 of the Hindu Succession Act is glaringly unfair. Though the statute
progressively gives outright proprietorship rights to women over such property, the
15
Dhruva Gandhi, Stridhana& the Hindu Succession Act, 1956: A Positive Step?, 9 NUALS LJ. 147, 159
(2015).
16
Pratibha Rani v. Suraj Kumar, 1985 SCR (3) 191 (India).
17
Section 27 in The Hindu Marriage Act, 1955 states: “Disposal of property. In any proceeding under this
Act, the court may make such provisions in the decree as it deems just and proper with respect to any
property presented, at or about the time of marriage, which may belong jointly to both the husband and the
wife.”
18
Sheetal Kotian, Stridhana: An Insight on Women’s Property, FOX MANDAL (Sep. 5, 2009),
https://www. foxmandal.in/stridhana-an-insight-on-womens-property/.
19
Dhruva Gandhi, supra note 14, at 153.
20
HaigreveKhaitan, Female Inheritance rights in India: Empowered women a key to economic progress,
BUSINESS TODAY (Oct. 7, 2019), https://www.businesstoday.in/opinion/columns/female-property-and-
inheritance-rights-in-india-empowered-women-a-key-to-economic-progress/story/383385.html#:~ :text=
Ensu
ring%20women's%20inheritance%20rights%20and,spends%2C%20education%20spends%20and%20child
care.
176
fundamentality of control and heirship have been turned around by the enactment, which
has a damning effect on a women’s individuality.21
Under the Section 15 of the Hindu Succession Act, in the event that a Hindu female dies
without a will, and in the absence of her husband and children, the heirs of her husband
will have a better claim to her property than her parents but in the event a male dies
intestate, property will devolve upon his mother and other blood heirs.
The provision is so unfair that for instance22, in order of succession, the rule prefers a son
of the husband's sister over a female’s mother herself.23 While the husband has a
patrilineal line of descent when his property is devolved, an absence of matrilineal
descent for woman is discriminatory.24
It is pertinent to note that the under the Mitakshara Law, the principal of propinquity was
the basis of Stridhana property’s succession but the same has been reversed by Section 15
of the Hindu Succession Act. The perception that a woman leaves her parents family after
marriage and that she adopts her husband’s family as her own, has long been used to
strengthen the patriarchal norms our society abides by. This is exactly what this act seeks
to achieve.25
It is to be noted that when the law was challenged in SonubhaiYeshwant Jadhav v.

BalaGovinda Yadav26, as being discriminatory. The court, while upholding the
constitutional validity of Section 15, described the distinction as an essential step for
ensuring unity and emphasised the notion that the woman had merged and become a part
of her husband’s family.
It is to be noticed that the Hindu Succession Act, additionally blemishes by not making
any qualification between the “separate property” and “self-acquired property” of females
dying intestate. The Act sets down same general standards of devolution for both
“separate” and “self-acquired” property of females, wherein it initially reverts on her
children or offspring of her predeceased kid and spouse then to the second class, for
example to her better half's heirs. The relations of her husband are given inclination over
21
Archana Mishra, supra note 2, at 150.
22
Refer the Case: Omprakash v. Radhacharan, (2009) 15 SCC 66 (India).
23
Section 15 (1) of Hindu Succession Act, 1956 states: “General rules of succession in the case of female
Hindus. —(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in
section 16,—
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the
husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly,
upon the heirs of the father; and (e) lastly, upon the heirs of the mother.”
24
Kasturi Gakul, Hindu Women's Property Rights under Hindu Succession Laws, 2(2) THE CLARION
149, 153 (2013).
25
Dhruva Gandhi, supra note 14, at 154.
26
SonubaiYeshwant Jadhav v BalaGovinda Yadav, AIR 1983 Bom 156 (India).
177
her own folks.27 The lawmakers didn't mull over that Hindu ladies would later have “self-
acquired” property. It is commonly the guardians who give offices to a young lady kid to
get equipped for acquiring her own pay, yet with regards to devolution of such property,
legal inclination is given to the spouse's family members instead of her own folks.28
Offering inclination to spouse's beneficiaries may to a degree be advocated on account of

discrete property on the ground that after marriage she turns out to be a piece of her better
half's family, yet giving them special rights over her folks in regards to her self-obtained
property isn't defended, especially when she might not have procured property with the
help of her significant other or his relative.29
Considering the equivalent, it might even be commented that the property rights allowed
to ladies under this rule are unimportant auxiliary land rights for example rights
appreciated by in a roundabout way by ladies through men. The vesting of proprietorship
in a lady keeps on staying a unimportant temporary re-route before property continues
along a man centric heredity.30
Even the 207th Report of Law Commission has suggested to bring reforms in this law,
either by bringing the devolution rules in parity or dividing the property equally among
the matrimonial and natal heirs.31
Way Forward
In recent years, the outlook of society as far as women are concerned has changed
drastically and women too have taken considerable steps socially and economically.
Indian laws have often had a discriminatory shade as far as women are concerned and
there is a growing demand to address this concern.32
The Law Commission of India (2008) suggested three options for devolution of separate
property of a Hindu female dying intestate, namely:
1. “the self-acquired property should devolve ﬁrst upon the heirs of her husband;
2. her self-acquired property should devolve ﬁrst upon her heirs from the natal family;
3. Her self-acquired property should devolve equally upon the heirs of her husband and
27
Maneck Mulla, Jinal Shah, India: Property Of A Hindu Female Dying Intestate, MONDAQ (Oct. 23,
2018), https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-hindu-female-
dying-intestate.
28
29
30
World Survey on the Role of Women in Development: Globalization, Gender and Work, U.N. General
Assembly, U.N. Doc. A/RES/54/227 (1999).
31
Law Commission of India’s 207th Report on Proposal to amend the Section 15 of the Hindu Succession
Act, https://indiankanoon.org/ doc/22640795/.
32
Sheetal Kotian, supra note 17.
178
the heirs from her natal family.”33
Even the Report of National Commission for Women in 201434 suggested the abrogation
of the rules of succession females passing on intestate and correcting the current
standards for devolution of guys biting the dust intestate with the goal that the principles
are uniform and material to any individual regardless of their sex.
The report suggested the following change: “General rules of succession – The property
of a Hindu dying intestate shall devolve according to the provision of this chapter – a)
Firstly, upon the heirs, being the relatives specified in Class I of the schedule; b)
Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in
Class II of the schedule; c) Thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and d) Lastly, if there is no agnate, then upon the cognates of
the deceased”.35
Financial changes warrant relating administrative changes through setting down uniform
standards of succession for both Hindu males and females passing away intestate. No
motivation exists for proceeding with the distinct rules of succession for Hindu males and
females.36
With the increase in social integration, economic independence, reform movements, there
needs to be a further call for the improvement of the woman’s position in Hindu society.
As independent India relies heavily on legislation to bring in social reform and ensure
removal of inequality and discrimination, the necessity is to review the present
succession laws and to bring the position of women at par with men.37
Property Rights and Women’s Economic Empowerment
Empowerment is a process through which women can gain the strength to oppose the
traditional prejudices that deter their development. Equality can only be said to be
achieved when women have the ability to challenge the existing power relations that
place them at the subjugation of their male counterparts. This journey towards equality
and empowerment will be sped up if women can achieve economic independence.
Awarding Land titles to women is one of the ways in which they can attain economic
33
supra note 30.
34
Review of Laws and Legislative Measures Affecting Women, on The Hindu Succession Act 1956 (30 of
1956), NATIONAL COMMISSION FOR WOMEN, http://ncw.nic.in/frmReportLaws19.aspx (last visited
Jun 2020).
35
Id.
36
AR Lakshmanan, Let us amend the law, it is only fair to women, THE HINDU (Jul 24, 2011),
https://www. thehindu.com/opinion/open-page/let-us-amend-the-law-it-is-only-fair-to-
women/article2288188.ece.
37
179
independence. Property rights act as a mechanism for women to gain the respect of their
spouses and family. In cases where women are not landowners, they are at a higher risk
for mistreatment.38
The concept of property has broader implications in India than in the West. In the west, a
person having the legal right of ownership over a particular private property will
automatically have the power to exercise such right and have unbridled access to their
property. In India however, this is not always true. A person having the right of
ownership to certain private property may be deprived of exercising this right in the
absence of customary rights. Therefore, a legal right without the presence of a customary
practice serves no purpose to its owner. However, when the question of lack of property
rights for a woman arises, it is usually understood to mean the legal right. In rural areas
however, customary practices and legal rights of women have equal importance.39
For there to be an improvement in the economic status of women, they must carry out
economic activities that are socially acknowledged. Social acknowledgement of
economic activities stems from their visibility. Thus, for the activity to be visible, women
must undertake activities outside the four corners of the home. Even though the
household chores performed by women contribute to the sustenance of the family, they
are not considered to be economic in nature. A person’s activity in the field whether in
the capacity of the owner or hired help is socially visible and hence considered a viable
economic activity.40
Land, the essential profitable resource in an agrarian economy as India, is of most

extreme importance to guarantee to an individual a noble life.41 Given that land is a
wellspring of business and vocation, the salary earned in that can be used for the
arrangement of instruction and medicinal services for the individuals from one's family.42
Further, land may likewise be utilized as insurance over the span of business exchanges
38
KC Roy, CL Tisdell, Property Rights in Women’s Empowerment in Rural India: A Review 5 (University
of Queensland, Working Paper No. 14, 2000), https://rsmg.group.uq.edu.au/files/2329/WP%2014.pdf.
39
Id. at 1.
40
Achieving Gender Equality,Women’s Empowerment and Strengthening Development Cooperation, UN
DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, https://www.un.org/en/ecosoc/docs/pdfs/10-
501 43_(e)_(desa)dialogues_ecosoc_achieving_gender_equality_women_empowerment.pdf (last visited
Jun 2020).
41
Realising Women's Rights to Land and Other Productive Resources, UN WOMEN 2 (2013).
See: https://www.unwomen.org/-
/media/headquarters/attachments/sections/library/publications/2013/11/ohchr-unwomen-land-rights-
handbook-web%20pdf.pdf?la=en&vs=1455.
42
Women 's Control over Economic Resources and access to Financial Resources, including Microfinance,
UN DEPT. OF ECONOMIC AND SOCIAL AFFAIRS 8 (2009).
See: https://www.un.org/womenwatch/daw/public/WorldSurvey2009.pdf.
180
and as a wellspring of venture. Land, in this manner, is a confirmation of a satisfactory

way of life and a proportion of strength and security.43
Gender equality has been the cornerstone of inheritance law, but in spite of this gender
discrimination, endures and inequalities in succession law lead to inequalities in land law
in developing countries. Bias against women in their role as landowners can have serious
implications for their position within the family and society as well as their professional
and economic options. In rural areas, these barriers to ownership affect their ability to
invest in agriculture, adversely impact their earnings and also serve to reduce their
importance in family decisions. It also impedes their social progress and helps patriarchal
notions come to power and reduce their standing in society. Therefore, it is of paramount
importance that land rights equity be used to spur gender equality.44
Though a significant bias persists, the chances of women inheriting land have increased
in recent years. Two major reasons for the low number of women inheriting land have
been found. First, land ownership is governed by personal religious laws which fall under
the jurisdiction of the state and therefore constitutional ideals of equality are not easily
enforceable which results in significant bias against women in inheritance laws. Second,
a traditionally patriarchal society prevents the land ownership of women.45
Various studies have noted that women with land titles are given better treatment by other
male members of the family as well. KC Roy in his paper observed that widows who
were landowners and lived with their adult children were treated with greater respect and
consideration than penniless and economically dependent widows.46
Asian Development Bank’s paper suggests that, the reported contribution of women to
decisions about issues like livelihood, household activities and farming with respect to
the ownership of land title. This pattern affirms the supposition that ownership of land
and women’s empowerment and their ability to bargain and make decisions regarding the
household. Though not a lot of data is available, there also appear to be indicators that
suggest that women who own land have a greater say in family planning. This also
supports the finding that elevating a woman to her husband’s status also increases the use
of modern contraceptives in India.47
The impact that women’s ownership of land has on women’s contribution to family
decisions is quite important. This could be due to law or policy that elevates lands rights
43
Id. at 7.
44
Harold Glenn et.al, Women’s Land Title Ownership and Empowerment: Evidence from India 1 (ADB,
Working Paper No. 559, 2018), https://www.adb.org/sites/default/files/publication/453696/ewp-559-
women-land-title-ownership-empowerment.pdf.
45
Id., at 1.
46
KC Roy, supra note 37, at 7.
47
Harold Glenn et.al, supra note 44, at 9.
181
equity to help increase women’s position in the family. Landownership acts as a

bargaining chip for women while taking decisions.48
Analysis of Section 6 of the Hindu Succession Act
Section 6 of the Hindu Succession Act “HSA” 1956 talks about the devolution of
coparcenary property of a person who died intestate i.e. without leaving a will. As per the
Mitakshara Law, coparcenary may be described as a group consisting of all those males
who take an interest in the joint or coparcenary property by birth.49 The fundamental
principle of coparcenary, therefore, can be said to be that only male members of the
common Hindu family can constitute a coparcenary, fully excluding the female members
of the family. Section 6 of the Hindu Succession Act, 1956 envisaged the same and the
coparcenary was considered a narrower entity within the common family.50
The HSA, 1956 was amended by the Parliament in 2005 to grant daughters equal rights to
inheritance and to make them coparceners on a par with sons. The Statement of Objects
and Reasons of the 2005 Amendment Bill sets out the force for the amendment in which
it was perceived that the exclusion of daughters from the coparcenary amounted to a
breach of the Right to Equality enshrined under Article 14 of the Constitution of India.51
It is pertinent to note that the conventional patriarchal existence of the coparcenary

underwent a dramatic shift following the 2005 amendment, which made the daughter of
the coparcener a 'coparcener'. Prior to that change, women had a marginal right to inherit
property from either their father or their spouse, but the reform led to the restructuring of
the provisions of Section 6. The old provision was deleted and a new provision was
added which stated that:
“On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of
2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall, ―
(a) by birth become a coparcener in her own right the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of
a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener.”
48
KC Roy, supra note 37, at 8.
49
P.V. KANE, HISTORY OF DHARMASASTRA 591 (3d ed., 1993).
50
Vijender Kumar, Coparcenary Under Hindu Law: Boundaries Redefined, 4(1) NLR 27, 39 (2009).
51
V Venkatesan, Interview | ‘The Project of Reforming the Hindu Succession Act Is Far From Over’: Dr
Saumya Uma, THE WIRE (Aug 17, 2020), https://thewire.in/law/hindu-succession-act-women-supreme-
court.
182
Thus, by virtue of Section 6 of the Hindu Succession (Amendment) Act, 2005, the
daughter is an acceptable member of the Hindu Coparcenary. In addition, daughters
continue to hold the roles of coparceners even after marriage due to the said amendment.
Court’s Interpretation
In making this amendment successful, the courts have played an essential role. They have
done so by adopting liberal interpretation and by incorporating the concept of notional
partition despite of the fact that it was not originally present in the text of the statute. It
was noted by the Supreme Court in GurupadKhandappaMagdum v.
HirabaiKhandappaMagdum52, that disregarding a woman’s right to get a share at the
time of notional partition essentially means that: “One unwittingly permits one’s
imagination to boggle under the oppression of the reality that there was in fact no
partition between the plaintiff’s husband and his sons. The fiction created by Explanation
I has to be given its full and due effect.”
Moreover, in G. Sekar v. Geetha & Others53., which was a case before the Supreme Court
after the 2005 amendment, the court while interpreting the intent of the Parliament,
observed that “It is, therefore, evident that the Parliament intended to achieve the goal of
removal of discrimination not only as contained in Section 6 of the Act but also
conferring an absolute right in a female heir to ask for a partition in a dwelling house
wholly occupied by a joint family as provided for in terms of Section 23 of the Act.”
Court’s ruling in Vineeta Sharma v. Rakesh Sharma

In my opinion, with regard to the interpretation of the Section 6 of the HSA, the recent
ruling of the Supreme Court in Vineeta Sharma v. Rakesh Sharma54 is the most pertinent
one. In this case, the court dealt with the issues of retroactivity and the origins of
coparcenary rights, both of which are analysed by the researcher below.
Origins of Coparcenary rights
The Supreme Court in its ruling in Vineeta Sharma cleared the confusion with regard to
the interpretation of Section 6. The confusion was created by the apex court itself through
its conflicting interpretations in Prakash & Others v Phulavati55& Others and Danamma
@ Suman Surpur v. Amar & Others56. In Vineeta Sharma, the court in explicit terms
made it clear that the question of when the father’s death occurred was not relevant as
survivorship was only the mode of succession, whereas coparcenary comes into existence
by virtue of birth.
52
GurupadKhandappaMagdum v. HirabaiKhandappaMagdum, AIR 1978 SC 1239 (India).
53
G. Sekar v. Geetha & Others, AIR 2009 SC 2649 (India).
54
Vineeta Sharma v. Rakesh Sharma, (2019) 6 SCC 164 (India).
55
Prakash & Others v Phulavati, (2016) 2 SCC 36 (India).
56
Danamma @ Suman Surpur& Others v. Amar & Others, (2018) 3 SCC 343 (India).
183
It is pertinent to note that Mitakshara Law classifies property into two categories:
ApratibandhaDaya and SaptratibandhaDaya. Apratibandha, as the word suggests means
unobstructed heritage whereas, Saptratibandha means obstructed heritage. As it is clear
from the above discussion, coparcenary is a right that comes into existence by virtue of
birth, it is ApratibandhaDaya, as the life of the property owner does not impede the
interest in coparcenary.57 In light of this, it is important for us to understand, that the
Supreme Court has correctly reasoned that since the 2005 amendment granted daughters
a coparcenary right to daughters by birth, it is unimpeded, and therefore the question of
when the father’s death occurred is not relevant.
Retroactive Application
With regard to the retroactive application, it should be noted first of all that retroactive
statute or provision is one which applies after its enactment, but that its operation or
application is based on the status or character which occurred or was acquired prior to its
enactment, derived from preceding events.
The court clarified in Vineeta Sharma that the 2005 amendment to Section 6 of the HSA,
explicitly makes it clear that the daughter of a coparcener by birth becomes a
‘coparcener’. The court while holding the retroactive impact noted that it is possible to
assert the right prospectively, on and from the date of the 2005 amendment, which is
however, based on the birth of the daughter, which is an occurrence of precedence.
Analysis
It is pertinent to note that though the Hindu Succession Amendment Act, which
introduced the concept of coparcenary for women is applicable all across the country
after the 2005 amendment, land is still a state subject, and this may have contributed to
the skewed findings in various states. That is, if discrimination as far as land ownership is
concerned persist, it will affect women’s inheritance and their status within the family on
a state level.
The findings of this study by ADB, point towards a trend wherein women’s land
ownership increases their position and decision-making power within the family.
However, this was found to vary across states mainly due to the fact that people may
remain unaware about their legal rights as far as inheritance is concerned. Thus, delayed
and feeble implantation of inheritance laws that empower women may have an adverse
effect on other spheres of their lives like decision-making in the home.58
Conclusion
57
Venkatesan, supra note 50.
58
Harold Glenn et.al, supra note 44, at 16.
184
In my opinion, if a totally different line of succession for the property held by females
would have been created, it would have led to tangible differences in the way a woman's
property is perceived. If provisions for a line of succession independent of patriarchal
norms would have been made, the property of the woman would not remain in the
clutches of male figures for all intents and purposes. A woman would gain a status of her
own independent of masculine entities.
While framing the HSA, the makers had the opportunity to create a new customary
practice that would promote equality. This however was squandered by the
discriminatory aspect of Section 15 of the Act. In my opinion, it would have been in
better interest if attempts would have been made to achieve equality through the existing
concept of Stridhana and its expansion.
Stridhana represented, at a specific level, an unrefined acknowledgment of the separation
between genders in contradistinction to the joining of the personality of a lady into that of
the closest male family member.
185
LOST IN CHAOS: WILL THE PARLIAMENTARY DEMOCRACY SUSTAIN

WITH AN INCREASINGLY DISRUPTIVE PARLIAMENT?
-Gaurav S. Gawande1
Abstract
A genuine democracy is inconceivable without a representative, efficient and effective
legislature. Our forefathers envisioned our democracy to be inclusive and robust. Hence,
they chose Parliamentary Democracy to give voice to each and every section of the
country. Parliament is recognized as one of the most democratic and open fora for
debate. Cabinets have to prove and retain their majority through parliament. Disruptions
and disorderly scenes in Parliament are not of recent vintage. As far back as 1952, the
Preventive Detention (Amendment) Bill caused disruption in parliament. India accepted
the pole system of the election through its constitution. Anti- Defection law was enacted
by 52nd amendment by adding it in the 10th schedule for good reasons to prevent
members from defecting. It allows parties to herd their members, weakens incentives of
legislators to invest in developing their own viewpoints and express them freely as they
cannot use their own stand on different issues to evolve or develop their own political
careers. Disruptions affect the efficiency of parliament badly. The most important effect
of disruption can be observed in people's reduced confidence in parliament. To minimize
disruptions, we need to take into consideration the duality of the problem. One is
regarding members of parliament and other is structural changes required. Parliament
currently is facing a lot of issues. However, there is also a ray of hope. In monsoon
session, 2018 productivity was 118% which is highest since the year 2000. Strengthening
the institution is not an impossible task.
Introduction
“The system of parliamentary democracy embodies the principles of change and
continuity. If continuity is broken, we become rootless and the system of parliamentary
democracy breaks down.”
-Jawaharlal Nehru2
A genuine democracy is inconceivable without a representative, efficient and effective
legislature. Our forefathers envisioned our democracy to be inclusive and robust. Hence,
they chose Parliamentary Democracy to give voice to each and every section of the
country. Parliament is recognized as one of the most democratic and open forum for
debate. Cabinets have to prove and retain their majority through parliament.Parliament is
the lawmaking body of the country. Though it is actually bureaucracy that prepares the
1
5th year (BLS LL.B.), Government Law College, Mumbai. He can be reached at
[email protected]
2
MINISTRY OF INFORMATION AND BROADCASTING, GOVERNMENT OF INDIA, Jawaharlal Nehru’s Speeches
(1983).
186
actual bill under the guidance of concerned minister still parliament largely overlooks the
whole procedure through its various committees and debates.
Parliament is a multi-functional institution performing a wide variety of roles. It has a
representative role, being the custodian of the nation’s ideals, hopes and faith. Apart from
lawmaking it also controls the executive and ensures its accountability. In a robust
democracy, it is vital for parliament to ensure that the executive does not overstep its
authority and remains responsible for people that have elected them. Similarly, the
legislature also has the financial power to decide how the government raises the taxes and
how the money is spent. The debating function of parliament ensures views of
representatives of the different background are heard at the apex level. Members are free
to debate any topic of national importance without fear and analyze it indepth. These
discussions constitute the heart of democratic decision-making.
Yet in most democracies including India legislatures are losing a central place to the
executive. This is being exacerbated by increasing disruptions in parliament leaving
many parliamentary procedures tenuous. Hence the very idea behind parliamentary
democracy is being subdued.
Historical Overlook of Disruptions in Indian Parliament
Disruptions and disorderly scenes in Parliament are not of recent vintage. As far back as
1952, the Preventive Detention (Amendment) Bill caused disruption in parliament.3
In 1990s railway and union budget started to telecast on National TV and thus a new era
began. On 24 July 2006, entire proceedings of Lok Sabha were telecast live. Since last 5
Lok Sabha, the disruptions have increased and the number of annual working days have
decreased in arithmetic progression. In fact, in 10th Lok Sabha, less than 10% time was
lost due to disruption whereas in 15thLok Sabha (2009-14) as much as 40% of total time
lost in disruptions making it least productive Lok Sabha.4
The monsoon session of 2015 turned out to be near washout due to disruptions and as a
result, the GST bill which was earlier agreed upon by all stakeholders could not be
passed.5
How Do the Members Disrupt Parliament?
Usually to project issues outside agenda members drown one another in their noisy
3
Dated August 2, 1952: Preventive Detention, THE HINDU (Aug. 02, 2002),
https://www.thehindu.com/2002/08/02/stories/2002080200390800.htm.
4
Shri P.A. Sangma, Functioning of Parliamentary Democracy in India, VIVEKANANDA INTERNATIONAL
FOUNDATION, (Apr.10, 2012), https://www.vifindia.org/transcriptions-paper/2012/04/04/functioning-of-
parliamentary-democracy-in-india.
5
Express Web Desk, Parliament’s Monsoon Session Washed Out, GST Bill Not Passed, THE INDIAN
EXPRESS(Aug. 13, 2005, 3:40 PM), https://indianexpress.com/article/india/india-others/live-gst-bill-
unlikely-to-be-passed-in-monsoon-session-of-parliament/.
187
demands. Often, they do cross-talking, demand suspension of question hour. They

highlight their protest by not complying with the instructions of the chair. Sometimes
they shout slogans in well in front of the chair. They force adjournment of house hour to
hour, day by day.
Causes behind Disruption
India accepted the pole system of the election through its constitution. As our polity
evolved, winnability of candidate became sole criteria subverting other important
qualities such as prowess in parliamentary procedures, knowledge of country's problems
etc. This has fundamentally changed the approach of members towards Parliament.
Winnability being the sole criteria they try to solve problems through 'mass protest' rather
than debate. Parliament is only as good as its individual members. With the rising trend
of the percentage of candidates with criminal records, it has been observed that they tend
to defy rules, create a ruckus in parliament. According to the association for Democratic
reforms, 34% of MP's in 16thLok Sabha face criminal charges. The percentage in 2009
and 2004 stood at 30 and 24 respectively.6
Experts also point out that the increasing trend in disruptions is directly proportional to
the evolution of TV media. A myriad number of 24*7 news channels have arrived on the
scene. To get more viewership they tend to cover sensational news and hence give more
importance to disruptions than debates. And members have a belief that publicity even
though bad is better than no publicity as winning next election has the top spot on their
priority list.
Today's era is the era of perception. Political parties also believe that their interests are
better served through disruption. In order to portray the government as inefficient, they
carry out protests rather than discussing the problem in parliament. Today political
parties have somewhat legitimized disruption as a parliamentary tool to oppose executive.
Anti- Defection law was enacted by 52nd amendment by adding it in the 10th schedule for
good reasons to prevent members from defecting. But it has created a new set of
problems. It allows parties to herd their members, weakens incentives of legislators to
invest in developing their own viewpoints and express them freely as they cannot use
their own stand on different issues to evolve or develop their own political careers. This
law was further strengthened by 91st amendment. Its ramifications include subversion
intraparty democracy. Hence it further leads to tickets being given only to loyalists which
finally lowers the quality of members getting elected.
6
Rukmini S., 16th Lok Sabha will be Richest, have most MPs with Criminal Charges, THE HINDU(May. 23,
2016, 6:48 PM), https://www.thehindu.com/news/national/16th-lok-sabha-will-be-richest-have-most-mps-
with-criminal-charges/article6022513.ece.
188
Effects
Members of Lok Sabha represent not only their constituency but also their state. Rajya
Sabha members are elected by elected members of state legislative assemblies. When
working of parliament is stalled due to disruptions members lose their chance to put a
stand of their state in front of other lawmakers. This undermines the principle of
federalism.
The major function of parliament is to hold the executive accountable. It uses different
means such as question hour, an indigenous innovation the zero hours to ask questions to
concerned ministers. Members also use calling attention motion to highlight the matter of
public importance and seek authoritative statement. Parliament can also use censure
motion against the council of ministers to oppose specific policies and action. In the
matter of urgency, Adjournment motion is introduced to highlight the matter of recent
occurrence and urgent public importance. But when members disrupt parliament, they
miss out on the opportunity to hold the executive accountable with facts and relevant
points which is the very soul of parliamentary democracy.
Disruptions affect the efficiency of parliament badly. In 2016, Parliament saw 70 sittings
and in 2015 it saw 72. In 2000, Lok Sabha was in session for as many as 85 days. In fact,
in the last 10 years, the lower House has met for an average of 70 days a year. In 2017, it
hit a record low of 57 days.7 The average number of sittings of Lok Sabha in 1952-57
was 135 days in a year. Disruptions not only reduce working days but also efficiency. In
15th Lok Sabha, only 165 bills were passed making it the least deliberative full-term
parliament ever.8
One among ramifications of parliamentary disruptions is an increased frequency of use
of guillotine closure. While it's unavoidable looking at the increased workload of
parliament guillotine lets many important undiscussed clauses of bill pass without
deliberation. Hence chance to analyze nitty-gritty of bill is lost.9
The most important effect of disruption can be observed in people's reduced confidence
in parliament. There is not merely a perception now, but an opinion in the minds of the
general public, that there has been a steady decline in the standard of our Parliament and
Parliamentarians. Disruptions also contribute to undermining the respect representatives
ought to have in the eyes of the citizens.
7
Rakesh Dubbudu, The Winter Session of 2017 Will be the Shortest in 20 years, THE QUINT (Nov. 29, 2017,
05:27 PM), https://www.thequint.com/news/india/winter-session-2017-to-be-shortest-in-20-years.
8
Special Correspondent, Parliament has 130 Pending Bills, THE HINDU (May 18, 2016, 07:32 AM),
https://www.thehindu.com/news/national/parliament-has-130-pending-bills/article5678494.ece.
9
Pradeep Kaushal, Guillotine: Fast-track Lawmaking, INDIAN EXPRESS (Mar. 16, 2018, 02:10 AM),
https://indianexpress.com/article/explained/guillotine-fast-track-lawmaking-lok-sabha-budget-session-bills-
passed-arun-jaitley-5099440/.
189
What Can Be Done

To minimize disruptions, we need to take into consideration the duality of the problem.
One is regarding members of parliament and other is structural changes required.
A] Improve the quality of members as well as their capacity building:
The criminalisation of politics is a serious concern. In a recentjudgment, Chief Justice
Misrasaid: “Criminalisation in politics is a bitter manifest truth, which is a termite to the
citadel of democracy”.10Judgment instructs candidates fighting election who are facing
criminal charges to advertise them thrice. As suggested in the judgment parliament must
enact the law to bar those who are accused of a crime from contesting the election. It is
not possible without consensus between all parties. Hence political parties must also need
to observe restraint while giving tickets.
Today MP's have to perform many tasks. To ask questions in parliament they need be
equipped with detailed knowledge both technical and legal about the country's problems.
They must be ready with research, complex macroeconomic concepts to scrutinize
budget. Hence MP's need to be assisted with competent research staff.
B] Structural Improvements:
Article 85 of the constitution empowers the president to summon parliament. And the
president follows the advice of the council of ministers. So, effectively, the government
decides when parliament is going to meet to oversee its functioning. There has been a
decline in a number of working days. In light of the fact that parliament does not have the
power to convene itself, a solution can be to fix a minimum number of working days for
it in a year. The National Commission to Review the Working of the Constitution had
recommended that a minimum number of working days for Lok Sabha and Rajya Sabha
should be fixed at 120 and 100 respectively.11
It can be concluded that majority of disruption is caused during question hour. It is the
first hour in working of the LokSabha. In 15th Lok Sabha, 60% of question hour time
was lost to disruptions.12 Many times House is adjourned for the whole day due to
disruption in a very first hour. Hence question hour can be shifted in LokSabha like it
was in RajyaSabha in 2014 to 12 pm to 1 pm.
10
Krishnadas Rajagopal, Supreme Court asks Parliament to frame laws to bar those accused of crimes from
fighting elections, THE HINDU (Sept.25, 2018, 11:02 PM), https://www.thehindu.com/news/national/cant-
bar-politicians-with-criminal-charges-from-contesting-elections-parliament-should-frame-laws-
sc/article25035435.ece.
11
Summary of Recommenation, OUTLOOK (Apr. 02, 2002),
https://www.outlookindia.com/website/story/summary-of-recommendations/215076.
12
PRS Legislative Research, Perfomance of Parliament During the 15th Lok Sabha, PRS (Sept.11, 2020),
http://www.prsindia.org/administrator/uploads/general/1393227842~~Vital%20Stats%20-
%20Performance%20of%2015th%20Lok%20Sabha.pdf.
190
Anti-defection law has curtailed the capacity of members to express their opinions
beyond party lines in-house and increases the incentives to control or create a political
party to be able to issue diktats to its members. Even though they can voice the concerns
of their voters, they cannot vote according to their conscience in opposition to the official
party position. We need to expand room for an individual member to express their
opinion freely in parliament. The issuance of the whip can be limited to only those bills
which can threaten the government such as money bill, no-confidence motion as
suggested by Dinesh Goswami Committee on Electoral Reforms (1990)13 and the Law
Commission Report 170 (1999).14
Conclusion
Parliament currently is facing a lot of issues. However, there is also a ray of hope. In
monsoon session, 2018 productivity was 118% which is highest since the year
2000.15Strengtheningthe institution is not an impossible task. With determination and
continuous effort, we need to build consensus along political spectrum about the selection
of candidates, maturity and restraint among political parties which is vital to minimize
disruptions and hence accentuate stature of our legislature.
13
Ministry of Law and Justice, Report on the Committee of Electoral Reforms (1990).
14
Law Commission of India, Reform on Electoral Laws, Report No. 170,
http://www.lawcommissionofindia.nic.in/lc170.htm.
15
PTI, Monsoon Session: Lok Sabha records 118% Productivity, Best since 2000, THE TIMES OF INDIA
(Aug. 10, 2018, 11:00 PM), https://timesofindia.indiatimes.com/india/monsoon-session-productivity-of-
lok-sabha-118-best-since-2000/articleshow/65359028.cms.
191

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IILS LAW REVIEW Vol.

7 Issue 1/2021 ISSN 2320 – 5318

IILS LAW REVIEW

INDIAN INSTITUTE OF LEGAL STUDIES

Siliguri, P.O. Salbari, Dist. Darjeeling – 734002 (West Bengal), India

EDITOR- IN- CHIEF

ADVISORY EDITORIAL BOARD

SHRI JOYJIT CHOUDHURY

Looking forward on Behalf of the Board of Editors,

Prof. Dr. Ganesh Ji Tiwari

2. Contempt of Court and Freedom of Speech: Shashank Nande& Rajiv 11-19

3. An Analysis of the Right to Health in India Chaitali Wadhwa 20-33

4. Impact of Intellectual Property Rights on Reet Singh 34-48

5. Menace of Witch Hunting in India: Does Manaswi 49-59

7. A Closer Look at the Parol Evidence Rule: Prateek Singh 69-81

8. Panoptical Surveillance of the State in a Sagnik Sarkar &Akarsh 82-94

11. Trade Secrets: A Strong Form of Protection Garima Singh 126-136

13. Penal Couple: Revisiting The Rights Of Vasundhara Kaushik 150-161

15. Stridhana in Contemporary Hindu Society: A Ruchir Joshi 173-185

16. Lost In Chaos: Will the Parliamentary Gaurav S. Gawande 186-191

SHAREHOLDERS’ RIGHT TO VOTE AND PARTICIPATE IN CORPORATE

-Dr. Gogo George Otuturu1

Shareholder’s Right to Vote under American Law

Majority shareholders have in many instances succeeded in curtailing or eliminating cumulative

removing minority-elected directors without cause. A third method employed to prevent

A shareholder may vote either in person or by proxy. A proxy is an authorization to exercise

Shareholder’s Right to Vote under German Law

Shareholder’s Right to Vote under Nigerian Law

Conclusion and Suggestions for Reform

CONTEMPT OF COURT AND FREEDOM OF SPEECH: THE UNBALANCED

Freedom of Speech and Expression under Indian Constitution

Significance of Independent Judicial System and Contempt of Court

Law Commission 274 Report of Law on Contempt

International comparison: Corresponding to the offense of 'scandalizing the Court', the

AN ANALYSIS OF THE RIGHT TO HEALTH IN INDIA

Accessibility comprises non-discrimination, particularly for the marginalised and disadvantaged

Constitutional and Legislative Provisions in India

b. Other Legislative Provisions

Judgments and Precedents

Proposed General and Specific Measures

i) Stewardship means the “careful and responsible management of something entrusted

b. Measures for Women and Children

c. Protection Against Harmful Traditional Practices

IMPACT OF INTELLECTUAL PROPERTY RIGHTS ON ECONOMIC GROWTH

Key Words: Intellectual property rights, Economy

3. The Relationship between IPR and Economic Growth

4. Protection of IPR in Different Countries

6. Intellectual Property Rights and Economic Development

6.2 NegativeImpact of Intellectual Property Rights on Economic Development

MENACE OF WITCH HUNTING IN INDIA: DOES REPARATIVE JUSTICE NEED

Analyzing the Normative Presumptions

THE ROAD AHEAD FOR TRANSFORMATION OF PUBLIC INTUITIONS INTO

Juxtaposition of Law and Managerial Study

public as well as the government. The performance of courts have implication on an

A CLOSER LOOK AT THE PAROL EVIDENCE RULE: UNDERSTANDING

Interpretation in Common Law

1.7 Parties’ capacity to contract

PANOPTICAL SURVEILLANCE OF THE STATE IN A DYSTOPIAN FUTURE- A

I.I Panopticon analysis of Bentham

II. State surveillance