Articles

Mobile Number Portability Regulations, 2009: An Overview

Sun, 20 May 2012 07:26:35 +0530

Mobile Number Portability (MNP) is a concept which can be understood in a layman’s language as the system under which one can change one’s mobile phone network retaining the number at the same time. When it had first come into existence, it was considered as a revolutionary step in the area of telecommunication. There are three parties involved in a typical portability operation, the recipient, the donor operator and the MNP Service Provider. The Mobile Number Portability Regulations, 2009 is the legal document governing it and is a highly technical and wisely drafted document. Since it is still very new to the Indian telecom industry, and not many cases pertaining to MNP have come up, as of now, whatever we are getting may seem sufficient to us but there is a lot more achievable if we consider countries like the United Kingdom where it has been highly successful. After reading the MNP Regulations, 2009, we realise that although it has several advantages, it is not without a certain amount of lacunae and the Department of Telecommunication and the Telecom Regulatory Authority of India need to something in this direction to make it a complete and comprehensive way to address the problem it desires to.

Table of Contents Page No.

1. Mobile Number Porting (MNP) Regulations, 2009: An Introduction 3

2. What is Porting and What is Mobile Number Portability? 3

3. Characteristic features of MNP 5

4. Rights and Obligations of the Parties involved in the process of Porting 7

Donor Operator 7
Recipient Operator 7
MNP Service Provider 8

5. The two sides of the coin named MNP 9

The Bright Side 9
The Dark Side 11

6. MNP in United Kingdom and the Matter of Vodafone V. Ofcom 12

7. Conclusion 13

Mobile Number Porting Regulations, 2009

An Introduction

In the field of law and technology, the Telecom Regulatory Authority of India (TRAI) has been able to achieve certain feats that till quite recently seemed next to impossible. The overwhelming telecommunication revolution India has witnessed in the past ten years is worth an ovation. Today, even in small towns and remote villages, we can locate mobile phones in almost all houses, so much that telephone booths seem to have become a thing of past. With the reduction in call-rates, availability of a number of service providers, and a numberless array of plans being provide by them, it is very likely that in near future India would become one of the leaders in the global telecommunication arena. A very recent progressive effort made by the TRAI is the introduction of Mobile Number Porting which is still in the pipeline and is expected to be fully active by the end of September, 2010. To facilitate a smooth Porting process, DOT has granted licenses to neutral third parties to build, own and operate MNP systems. As of now only two neutral third parties, M/s Syniverse Technologies (India) Pvt. Ltd. and M/s MNP Interconnection Telecom Solutions India Pvt. Ltd. have been granted Porting licenses to operate in separate zones in India. Mobile Number Portability will be first implemented in the states of Delhi, Maharashtra, Gujarat, Tamil Nadu, Kolkata, Andhra Pradesh and Karnataka in near future. This article deals with this development and how it would benefit the consumers. But, apart from this it intends to present a comprehensive critique of the Regulations focussing on both, its pros and cons.

What is Porting and What is Mobile Number Portability (MNP)?

Porting of telephone numbers essentially means retaining of the telephone number by the subscriber while switching from one service provider to another or from one technology to another within the same service. Porting facility for fixed telephone numbers is still not available in India. “Mobile Number Portability” means the facility which allows a subscriber to retain his mobile telephone number when he moves from one Access Provider to another irrespective of the mobile technology or from one cellular mobile technology to another of the same Access Provider.^¹ This means that if for any reason, a mobile phone subscriber wants to switch to any other service provider or to any other cellular mobile technology of the same service provider, he can do so.

This is aimed towards increasing the freedom of the subscriber and also competition amongst various service providers which in turn would increase efficiency in services and better customer care. Once MNP becomes effective, it would ensure that customers get better facilities at desirable costs.

Characteristic Features of MNP

MNP provides for the facility of retaining the number while changing the service provider or technology. But there are certain eligibility requirements for it. For instance if a person wants to switch to some other network, he cannot do it before the expiration of ninety days from the date of activation of his number. This is done in order to allow the service provider to recover his customer acquisition costs. Moreover, service providers provide certain facilities to customers initially, at the time of taking up a connection. For example, Vodafone grants its customers free Vodafone Happy to Help caller-tune for a period of 30 days from the date of activation of a number for which an amount of Rs. 30 is to be paid after the lapse of the said one month period. If a customer is allowed to port number without the expiration of any minimum period, he can do so to the detriment of the service provider just to avail such free facilities and avoid any charge. Certain other features of MNP are:

1. MNP facility would be available only within a given area. This means that if a person wants to shift to some other geographical area which is not the same Short Distance Charging Area (SDCA) or the local area, it will not be possible for him to get his number ported.

2. The subscriber needs to clear any pending bills with the service provider he is leaving (also known as Donor Operator) and in case it is found later on that any payment lawfully due to the said service provider has not been made, the number can be disconnected.

3. A request for withdrawal of porting request can be made within 24 hours of applying but any cost incurred would not be refundable. Also, the service provider to which the subscriber is shifting (also known as the Recipient Operator) would be liable to pay any pre-porting charges.

4. As explained above, a minimum period of 90 days from the date of activation of the number is required to pass before application for porting of number can be given.

5. The Recipient Operator may ask the subscriber to pay it any porting charges which the subscriber would legally have to pay.

6. Except in cases of Assam, J and K and North East, where maximum time allowed for completion of porting is ten days, the entire porting process would be completed in a maximum of thirty six hours from the time of receiving clearance from the Donor Operator.

7. For porting of a number, there should not be any pending request for the change of ownership of the mobile number, the number should not be sub-judice and porting should not be specifically prohibited by a court of law.

Rights and Obligations of the Parties involved in the process of Porting

Like in all transactions, here too rights and obligations of the concerned parties are clearly defined. The MNP Regulations provide for them and also what would be the recourse in case of any dispute or disagreement. The following gives an overview of it.

Donor Operator:

Shall continue to provide services to the operator till the number is disconnected for porting.
Shall refund any refundable payment made by the subscriber at the time of subscribing to the network of the donor.
Shall maintain a record of all numbers ported or rejected from porting for a minimum period of twelve months from the date of porting or the date of rejection, as the case may be.
Shall serve a notice (which should not be for less than seven days) to the subscriber in case of non-payment of any dues specifying that in case of non-payment within the said period, it would request the recipient operator to disconnect the services.
Shall inform the recipient operator through the MNP Service Provider in case of non-payment of dues and request for disconnecting the ported number.

Recipient Operator:

Shall pay the per-porting transaction charges to the MNP service provider.
Shall maintain a record of all numbers that have been rejected from being ported for a minimum period of twelve months from the date of rejection.
Shall issue a notice to the subscriber for a period of not less than seven days and not more than 15 days in case of a request made by the Donor Operator calling upon such subscriber to produce evidence of having settled such dues and shall disconnect the number in case of subscriber’s failure to produce evidence within the given time.

MNP Service Provider:

Shall make efforts for expeditious porting of mobile numbers.
Shall use the Number Portability database for the purpose of porting and dipping only and nothing else.²
Shall keep records of numbers of porting requests received, successful portings carried out and failed portings with reasons for such failure.
Shall consider the requests made by the Donor and Recipient operators in the matters of disconnecting a ported number and look into the matter.
Shall raise bills along with the relevant details in respect of per-port transaction charges and deliver them to the recipient operator and in case of failure to pay, shall issue a notice to the operator for payment for not less than 15 days.
Shall in no case (irrespective of issue of notice to the recipient operator) discontinue the provision of MNP service to the recipient operator.

Apart from these the TRAI will have the power to issue instructions from time to time for the smooth governance of the service and can also as it thinks fit order for inspection and auditing of the records of the service providers.

The Two Sides of the Coin named MNP

MNP is an effort of the TRAI towards making life more comfortable for the consumers by providing them with much more latitude when it comes to telecommunication. It makes the service providers more responsible towards the public at large and themselves by giving them an incentive to become better. But there is a flip side to this too. This section discusses the two sides of the same coin named MNP.

The Bright Side of MNP

As is clear from the discussion above, MNP would bring another revolution in the area of telecommunications. MNP has worked in some cases in the most dynamic ways, the most impactful implementation of MNP being in Scandinavia –most notably Finland and Denmark, and in such markets as Hong-Kong. MNP was first instituted on 23 November 2003 in United States of America. In United Kingdom, portability for fixed line operators began in 1997, and MNP began in January 1999. It has a number of advantages:

The first and the biggest advantage is rise of competition amongst the service providers. If a service provider is not providing up to the mark facilities, a subscriber has all the freedom on earth to switch to another. As is very normal, this would create a sense of insecurity in the service provider and it would try its best to provide services that are the best in the market in order to keep its customers to itself.
The minimum time period before a request for porting can be made ensures that the donor service provider is able to extract its customer acquisition costs. Also it would keep a check on customers who just want to access free services available for some time and who would keep hopping from one network to another just for this purpose if no minimum period is prescribed.
Earlier if a subscriber wanted to switch to some other connection, the biggest loss would be the loss of the telephone number and also the cost incurred on already printed stationery, like business cards, writing pads, envelopes, letter-heads, etc. With the advent of MNP, this difficulty would be completely done away with.
The Regulations made by TRAI in 2009 make sure that the subscriber who is dissatisfied with a particular service provider can switch to another without being forced to pay a fee to the Donor Operator except for the dues.
In case of a dispute between the service providers regarding payment, the subscriber would not suffer and the service would continue to be provided.

But as almost always happens with good things, this, too, does not come without some lacunae or better say disadvantages. While formulating the guidelines, certain considerations seem to have been left out by the drafters. If we take a look at these, we would realize that this might be a cause of trouble in future.

The Dark Side

The first and foremost is that the MNP facility is allowed in a given Short Distance Charging Area (SDCA) or the local area only. If one is leaving one SDCA and shifting to another, this facility will not serve him any good. So, the problem of change of telephone number would still persist in that case.
Before switching to some other network, one has to remain with a network, at least for a period of 90 days from the date of activation of number. This period is a little too long since if a problem starts on the very first day, the subscriber will have to wait for three months to pass in order to get rid of it.
As provided under Regulation 14(5), only a request can be made by the Donor to the Recipient Operator for the disconnection of the mobile number and nothing else. After that, it is upon the latter to take any further action.
Under Regulation 16(7), even if the payment is not made to the MNP Service provider by the Recipient operator, it would continue to provide its services. This is very much against the interests of the MNP Provider.
TRAI is the authority that would issue directions from time to time and also audit and inspect the records but nowhere has it been given in the regulations that in case of a dispute, who would the parties refer to. Also, in certain clauses such as the two mentioned immediately above, there is no provision that would enable the party at loss to address its grievance to a particular body and would be left in the lurch.

MNP in United Kingdom and the matter of Vodafone V. Ofcom^³

Since MNP is comparatively a very recent phenomenon, the matter of Vodafone V. Ofcom is one of the most important ones related to it. There were a number of points laid down in it that were rudimentary to MNP. It also discussed the current system of MNP.

Under the current system for providing MNP in the UK, a customer of network A (“the donor network”) who wishes to transfer to network B (“the recipient network”) will first need to obtain a Porting Authorization Code (“PAC”) from the donor network. Once the PAC is received, the customer can contact the recipient network and that network will then enter the PAC into the industry porting system, supplied by Syniverse. Before 31 March 2008, the donor network had five business days from this point in which to complete the porting process. This was reduced to two business days from 31 March 2008 by a statement published by OFCOM on 17 July 2007. Once the porting process has been completed, calls made to the customer’s original mobile telephone number will be routed to the recipient network. However, under the existing system, calls to a ported number are still generally routed in the first instance to the donor network, which then onward routes the call to the recipient network.

The decision in the aforementioned case mandates the establishment of a database, to be populated first with ported mobile numbers but later extending to ported fixed numbers too, so as to enable any provider to route calls directly to ported numbers without the need to route the call to the donor network in the first instance for onward routing to the recipient.

The above mentioned decision would be of great importance if any dispute comes up before us in India and that relates to a meter like this. Although it does not have any authoritative value, it certainly has a very great persuasive value and would be of immense help in understanding the intricacies involved with MNP.

Conclusion

There is no doubt if one says that the TRAI MNP, 2009 Regulations is a milestone in the developments pertaining to telecommunications industry. Being a boon for the subscribers it would also prove to be an incentive for the service providers in working towards the betterment of their services. Increased competition would enable better telecommunication services across the country. Also, the public at large would benefit without any extra cost and would be the deciding authority when it comes to the performance of the operator. It also provides freedom to change one’s mind once one has applied for porting although within a given time limit. But as is evident from the above discussion, these regulations can also give birth to a catena of problems. For example, it can lead to disputes and disagreements between service providers since the regulations do not give in detail what measures are to be taken in the wake of such problems. Also, if just two MNP operators are to provide services in the entire country, it might become difficult and expensive to do so.

High implementation costs can be considered to be one of the main reasons against number portability. Mr. John Horrocks, an MNP consultant who spoke at a the Workshop on Implementing Mobile Number Portability in 2007 in Islamabad has demonstrated that a basic costs-benefit analysis of the portability process showed that implementing this service in smaller countries with populations of less than 10 million was not a feasible option, as the costs outweighed the benefits significantly. But in Countries like India it can be a revolutionary approach. All said and done, the key lesson is that MNP alone is hardly sufficient to expand end-user options and make markets more competitive. If a market is not competitive to begin with, MNP will have a limited impact. Indeed, the markets in which MNP has proved to be a boon are markets that already were highly competitive and had low subscriber loyalty. Thus, MNP just made the switching process easier. To be effective, MNP should therefore not be used in a vacuum, but along with other regulatory tools. As a regulatory tool, MNP is also important to improve individual operator quality of service. Ultimately, the best case scenario for a marketplace is one in which end-users have the needed flexibility to migrate networks if they want to, with operators raising their overall quality of service to make switching networks an unappealing option. It can be hoped that in due course of time, the TRAI would be able to come up with some mechanism and solutions through which the problems discussed in the preceding pages could be solved. As of now, it needs to be congratulated for such an effort that would work for the subscribers’ benefits and reduce their problems regarding switching to a different network in a given area to a great extent.

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1 Regulation 2(i) of the Telecommunication Mobile Number Portability Regulation, 2009 of the Telecom Regulatory Authority of India

2 Vodafone V. Ofcom, [2008] CAT 22 (Communications Act 2003 appeal) dealt with the issue of the Number Portability Database and a common database specifically.

3 [2008] CAT 22 (Communications Act 2003 appeal)

The Perspective And Legal Control Of Genetically Modified Foods In India

Sun, 20 May 2012 07:26:35 +0530

Food is an important part of religious observance and spiritual ritual for many faiths including Christianity, Judaism, Islam, Hinduism and Buddhism. The role of food in cultural practices and religious beliefs is complex and varies among individuals and communities^¹. The Holy Prophet Muhammad recommended even for pious man the quantity of food “which is just sufficient to keep his back-bone erect”^². There are milk, honey, grapes, lamb, olives ... in fact, since Christians believe that all good things are a gift of God, every food has deep religious significance^³. Eating is an important activity, which is required in order to live. It is God, who has created each and every thing. Food, hunger, living beings, all of them the part of God’s creation. One should remember God, the Omnipresent, who has given both, sweet and sour delicacies to satisfy our taste buds. Following is the sloka/sholka (Bhagvadgita, Chapter IV, Karmayoga, Sloka 24) which can be recited while eating or taking our food.

“Brahmaarpanam Brahma Havih Brahmaagnau Brahma Hutam,

Brahmaiva Tena Gantavyam Brahmakarmasammadhina”.

Food is one of the basic necessities for sustenance of life. It is no wonder to say that community health is national wealth. Over the centuries of human existence on planet Earth, food, clothing and shelter have emerged as the three basic necessities. While clothing and shelter have emerged as basic needs in the due course of human evolution, right from the beginning of life, food has been the major source of energy and existence. The dependence on food grew manifold with the rapid rise in the global population and today it is one of the major concerns for many of the countries, especially the developing and under developed countries to meet the food demand of its population.

In the past few years, the issue of meeting the food demand of global population has assumed importance. The renewed interest in food security is on account of various reasons like growing population, decrease of cultivated land and decreasing standards of nutrition. By the year 2020, 10 years from today, it will most likely have increased by about 2.5 billion to a total of 8 billion people^⁴, an increase of nearly 100 million a year. While the cultivated land supporting food production is expected to fall on 0.15 hectors per person by the year 2050^⁵. In all probability, this scenario will result in a serious mismatch between the food supply and the demand. A growth in demand for food asks for a proportionate increase in productivity. So to meet all these, a new revolution in the form of plant biotechnology is promising to meet the food demand through its path breaking innovations.

With the advancement of science and technology, we should feel proud of what we are now. But every technology has its benefits and risks. But it all depends on our capacity to analyse risks and benefits. We must analyse whether risks are more or benefits are more.

It is in this light this article seeks to examine the different aspects involved in Genetic Engineering (GE) or Genetic Modification (GM). In the course of presentation, the Researcher will analyzing the effect of Genetically Modified crops and foods, the rationale behind the GM and the discrepancies, which flow along with it. Since the birth of the duplicated sheep "Dolly," genetic engineering (GE) has attracted attention from all levels of society. GE raises questions of religion, ethics, and ecology that are of great concern to many people.

India is a major battle-ground for the worldwide markets that the industry is eyeing. Within India, we find that policy makers and scientists are blind to the full impacts of this technology and have an unscientific and irrational support for it. During the Green Revolution and introduction of Indian farming to chemical farming, civil society groups and farmer’s organizations had not intervened and did not present any alternative vision for agriculture. The same mistake cannot be allowed to be committed with the ‘Gene Revolution’.

The endeavour’s not just on GE in agriculture, Genetically Modified Foods per se but on democratization of science & technology. The collected the information from participating workshops of ANGARU(Acharya NG Ranga Agricultural University), sharing and getting information with NGO’s like Centre for sustainable agriculture, Deccan Development Society, SAGE(South Against Genetic Engineering), activists, authors, scientists, governmental websites, editorials, articles in magazines and grateful to all. The Researcher also delivered his opinion on Bt Brinjal to Hon’ble Minister of Environment and Forests Jairam Ramesh^⁶ in National Public Consultations held at Hyderabad on January 31^st 2010. The presentation video of Researcher consisting of one minute duration can be available on ministry of environment and forests website^⁷.

What is this GE/GM Technology?

Genetic engineering is one of the components of biotechnology, which enables genes that carry instructions for a particular trait to be isolated and moved from one organism to another. A transgenic plant contains a gene or genes isolated from different source that has been artificially inserted instead of plant acquiring them through pollination. The inserted gene, known as transgenic, may come from another unrelated plant or from any toxin. Plant with transgenic(s) is often called ‘genetically modified plant’(GM plant) or ‘genetically engineered plant’(GEP)^⁸.

What is Genetic Engineering or modification?

A laboratory method that enables short sections(genes) to be isolated from the genetic material of any organism and to be transferred into the cells of a different organism, thereby altering its characteristics^⁹. To sum up again, Genetic Engineering involves a “cut and paste” job with some genes where they are cut from one organism and inserted into another. Genetic Modification (GM), Genetic Manipulation and Genetic Engineering (GE) all refer to the same thing. It is also know as recombinant DNA technology.

The is not focusing about Biotechnology, but Genetic Engineering or Genetic Modification is only one of the technologies under the broad umbrella of Biotechnology. The Researcher is adhering to the impact and legal control of Genetically Modified foods in India.

What are genetically-modified foods?

The term GM foods or GMOs (genetically-modified organisms) is most commonly used to refer to crop plants created for human or animal consumption using the latest molecular biology techniques. These plants have been modified in the laboratory to enhance desired traits such as increased resistance to herbicides or improved nutritional content. The enhancement of desired traits has traditionally been undertaken through breeding, but conventional plant breeding methods can be very time consuming and are often not very accurate. Genetic engineering, on the other hand, can create plants with the exact desired trait very rapidly and with great accuracy. For example, plant geneticists can isolate a gene responsible for drought tolerance and insert that gene into a different plant. The new genetically-modified plant will gain drought tolerance as well. Not only can genes be transferred from one plant to another, but genes from non-plant organisms also can be used^¹⁰. The best known example of this is the use of B.t. genes in corn and other crops. B.t., or Bacillus thuringiensis, is a naturally occurring bacterium that produces crystal proteins that are lethal to insect larvae. B.t. crystal protein genes have been transferred into corn, enabling the corn to produce its own pesticides against insects such as the European corn borer.

Advent of GM Crops in India:-

Inspite of seeing so many man made and natural calamities, we have been heralding into one more man made disaster. A disaster which may prove far more destructive that anything we have never seen so far i.e introduction of Genetically modified crops or foods into our daily needs without any proper proven scientific tests.

Nature allows you to cross a wheat plant with a wheat plant, nature allows you to cross a maize plant with a maize plant, tomato plant with a tomato plant, or a pig with a pig, horse with a horse, you know like that, it does not allow you to cross a interspecies crosses. What Genetic Engineering is doing is, you can actually cross, in that sense, you can actually cross or being a character, for let’s say pig into a human beings or from a human being into one plant. People should know that when you mix this genes this way, then you are coating disaster, because of the disease comes with it so why you should want to use it^¹¹. The unproved/hypothetical claim is that technology of Genetically modified may reduce the pesticides, diseases, increase the productivity, improve the nutritional content of the plants more cultivation and give more food and security to the countries.

Genetic Engineering may be an important option for ensuring food and security. But, before introducing for human consumption, thorough safety tests to be conducted. After Green Revolution, the Gene Revolution keeping endeavours to meet the food demand through its path breaking innovations. There is a presumption that Genetic Engineering or Genetic modification may serve as powerful tool in increasing the ability of mankind to enhance the food production along with nutritional values. But, there are various safety, environmental, ethical and socio-economic issues associated. Despite these concerns several countries are encouraging the research and developmental activities in the area of Genetic Engineering. On the other, some countries are opposing the use of genetically modified foods^¹².

GE cultivation bans in Europe^¹³

Austria: Ban on cultivation of Monsanto’s maize MON 810, MON 863 and T25

Notified in June 1999, initially under Article 16 of Directive 90/220/EEC, and subsequently maintained in February 2004 under Article 23 of Directive 2001/18/EC;

France: Ban on cultivation of Monsanto’s maize MON 810.

Notified in February 2008, under Article 23 of Directive 2001/18/EC; and under EU Regulation 1829/2003

Germany: in April 2009 the agriculture Minister, Ms. Aigner, announced a ban on cultivation and sale of MON 810

Greece: Ban on cultivation of Monsanto’s maize MON 810.

Application lodged in April 2005 under Article 18 of Directive 2002/53/EC, and subsequently in January 2006 extended/maintained the measure under Article 23 of Directive 2001/18/EC;

Hungary: Ban on cultivation of Monsanto’s maize MON 810.

Notified in September 2006, under Article 23 of Directive 2001/18/EC;

Italy: General ban on the cultivation of all genetically engineered (GE) crops.

Notified by ministerial circular in March 2006. This ban will stay in place until the Italian regions have regulated the “coexistence” between GE, conventional and organic crops.

Luxembourg : Ban on cultivation of Monsanto’s maize MON 810. Notified in March 2009, under Directive 2001/18/EC

Poland: Ban on cultivation of Monsanto’s maize MON 810. Application lodged in March 2005 under Article 16 of Directive 2002/53/EC ( The EU’s Seeds Directive). The ban under the Seeds Directive affects 16 out of 31 MON 810 varieties. However, in May 2006 the Polish government complemented the ban with a general prohibition –based on national law- to sell any GE seeds in Poland.

Romania: Ban on cultivation of MON 810 maize announced by Environment minister Korodi on 27 March 2008. The Romanian government has indicated that it intends to install the ban on the same legal grounds as France: under Article 23 of Directive 2001/18/EC; and under EU Regulation 1829/2003. Enactment of the ban is expected in April 2008.

Switzerland: In 2005, the Swiss voted by referdendum a 5-year moratorium against the commercial cultivation of GM crops and animals. The Suiss government decided to extend this moratorium till 2013.

Prince Charles says GM Crops will be ‘disaster’

Charles said multinational food companies were conducting a "gigantic experiment with nature and the whole of humanity which has gone seriously wrong". If large companies took over the mass production of food, it would hurt small farmers and the environment, while "excessive approaches to modern forms of agriculture" had damaged water supplies in India's Punjab and in Western Australia, he said.

"And if they think it's somehow going to work because they are going to have one form of clever genetic engineering after another, then again count me out, because that will be guaranteed to cause the biggest disaster environmentally of all time^¹⁴."

Genetic Engineering essentially involves introduction of exerted traits from unrelated species into a crop plant or animal. Once the trait has been identified the gene is isolated and inserted into another crop or animal in a laboratory using bacteria or a gene gun. These are then propagated in controlled conditions. Bt. Cotton the only genetically modified crop permitted in India and was also developed in similar manner. A toxin producing gene from a soil born bacterium called bacillus thuringenis (bt) was introduced into the cotton plant which is then supposed to kill the American boll worm, a pest the cotton farmers suffered a lot. Due to this the farmers switched over to Bt seeds. However, the euphoria over Bt cotton seeds did not lost long. As in the case of pests developing immunity to pesticides over time bollworms started developing resistance against the Bt gene. For farmers it was the back to square one.

The multinational companies were promoting the GM foods claim that after the Green revolution, the gene revolution is the next being thing to solve global food problem.

What makes Genetically Modified Crop unique is that Gene from different species is inserted into the plant. It is process that can never occur by/in the nature itself. This unnatural fusion has given rise to in equally unnatural social equation. Farmer the producer of seed has been reduced to farmer, to the consumer of seeds and corporation who are nothing to do with farming are emerged as new owners of the seed.

It is a technique involving transfer of a selected piece of genetic material capable of performing new functions from one organism to another.

What are Genetically Modified(GM) crops?

GM technology is used because it can change the genes of an organism in a way not possible through traditional breeding technology. Consequently only GM can engineer totally new plant varieties with traits that range from the ability to survive adverse environmental conditions and pest attacks to a longer shelf life and enhanced nutritional value.

In world, Genetic Modification crops began with soya bean, maize, cotton and canola (rape seed). In the first few years of its introduction, GM Crops were concentrated only in the US, Argentia and Canada, but by 2002 on wards, it spread to china, India and Brazil.

First Origin in India:-

The most common insect-tolerant crops worldwide are Bt Cotton and Bt Corn, which are made by creating a cotton or corn plant with a gene drawn from a soil bacterium called Bacillus thurengiensis (it is the name of this bacterium shortened into Bt) that appears in the name of the GE crop and the actual gene inserted in most Bt Cotton hybrids in India is Cry1Ac. A Bt Cotton Plant is supposed to produce its own toxin from this Bt gene inserted into it, to kill the American bollworm and the spotted bollworm. Bt Cotton proponents say that it is also effective against the pink bollworm. Bt Cotton proponents say that it is also effective against the pink bollworm.The Indian experience of GM Crops began as back in 2002 when three hybrid varieties of Bt.Cotton were grown^¹⁵.

In 2002, India allowed farmers to cultivate Bt. Cotton- the only GM Crop commercially grown in India to date. In 2003, cotton farmers in the southern state of Andhra Pradesh, whose government had aggressively promoted GM Technology, suffered severe agricultural and financial losses and many including entire families committed suicide.

There was a huge uproar in the Andhra Pradesh Legislative Assembly with the Congress (I)government, then in the Opposition, demanding compensation for Bt Cotton farmers. Based on their own survey, on March 10 2003, the then Minister for Agriculture in the Government of Andhra Pradesh made a statement in the Assembly admitting that the performance of Bt Cotton has been less than satisfactory. He said that “overall information is that the farmers have not experienced very positive and encouraging results” and that therefore, the farmers need to be compensated. To this, MMB (Monsanto-Mahyco Biotech) said that it will compensate farmers only^¹⁶ for failure to germinate and for absence of genetic purity promised by the company and not for yield losses. This response from the company was not questioned by the government and a bad precedent was set, as similar results from 2004-05 would show. The Andhra Pradesh government did not make any changes to its “MoU system” to prevent such responses from seed companies. The fiasco went unchallenged while the first GE/Bt Cotton farmer in the country committed suicide in Andhra Pradesh in 2003 after the very first season of the commercialization of Bt Cotton.In the year of 2004, again, the Andhra Pradesh government had to officially order M/s.Mahyco to pay compensation to the tune of four crore of rupees to Bt. Cotton farmers who lost their crop, which the company refused to. The losses were estimated only in a small part of Warangal district whereas reports of failure emerged from several districts of the state^¹⁷. Due to Bt.Cotton cultivation there were certain adverse effects on human health and the inexplicable phenomenon of toxicity in animals after grazing on Bt.Cotton fields. The Bt.Cotton experience shows that there has never been a more deserving case for applying the precautionary principle in the case of any technology. A toxin present in Bt Cotton are so harmful.

If we think that the problem caused by Bt Cotton will confined to farmers and animals only, we need to think it again because that the gene that is used in Bt Cotton is the same which is now being used in Bt Brinjal. Naturally the people are outraged and they are out of street to register their protests.

First GM Vegetable-Bt Brinjal

India is the Centre of Origin for Brinjal or Eggplant. Brinjal has been cultivated in India for the last 4000 years or so and has many historical references in various languages. It is grown all over the country, year-round and is one of the most popular vegetables of India. The area under cultivation is estimated to be around 5 lakh hectares. There are many local varieties in India, in addition to improved varieties and hybrids. Bt. Brinjal is the first Genetically Modified food crop in India that has been developed by inserting a gene Cry1Ac from a soil bacterium called Bacillus Thuringienses through an Agro-bacterium-mediated gene transfer. It is genetically modified brinjal developed by the Maharashtra Hybrid Seed Company Ltd (Mahyco), a leading Indian seed company. Bt. Brinjal Event EE-I has been developed in a public private partnership mode under the aegis of the Agriculture Biotechnology support project from Cornell University where the Bt.technology available with M/s.Mahyco has been transferred to Tamilnadu Agricultural University, Coimbatore, University of Agricultural Sciences, Dharwad and the Indian Institute of Vegetable Research, Varanasi.

According to the claims by Mahyco introduction of Bt variety will help millions of brinjal farmers who have been suffering from the havoc caused by the Brinjal Fruit and Shoot Borer (BFSB). Bt brinjal will help them tackle this pest in an environment-friendly manner and increase yields and farm income. Environmental activists have over the years questioned the bio-safety of these products and pointed out that this is a form 'bio-terror' that should be curbed at all costs. Brinjal has been in India for over 4,000 years. It accounts for half a million hectares of land in India with an output of 8.4 million tonne.

The Big Debate on BT Brinjal

Environment activists says the effect of GM (genetically modified) crops on rats have shown to be fatal for lungs and kidneys. It is dangerous to introduce these experimental foods into the market without proper research; they say is a big threat to India's agriculture with MNCs charging Indian farmers for their seeds. The supply of seeds will be regulated and thus costlier. Indian farmers would have to depend on MNCs for seeds.

Bt Brinjal is a transgenic brinjal created out of inserting a gene [Cry 1Ac] from the soil bacterium Bacillus thuringiensis into Brinjal. This is said to give the Brinjal plant resistance against lepidopteran insects like the Brinjal Fruit and Shoot Borer (Leucinodes orbonalis) and Fruit Borer (Helicoverpa armigera). It is reported that upon ingestion of the Bt toxin by the insect, there would be disruption of digestive processes, ultimately resulting in the death of the insect. Bt brinjal, a genetically modified strain created by India's number one seeds company Mahyco in collaboration with American multinational Monsanto.

The danger is greater in the case of Bt brinjal since it is a food crop and goes to the consumer directly. Bt brinjal will be the first transgenic vegetable to be cultivated and sold in Indian markets. Protests have been held everywhere against it and other farmers’ organisations have also raised the issue. The government should first do its own basic research, get both sides of the argument, and discuss the same with farmers’ organisations and even in Parliament. There should be no introduction of Bt brinjal without a public scrutiny of the data that the Genetic Engineering Approval Committee used to give its approval. If the GEAC decision comes into effect, the floodgates will be opened to 60 GM food crops, including rice, okra and corn, in India. However, some farmer organisations that have supported it have done so without a proper understanding of the issue.

Of course, people are not opposed to food security. The production of food grain has gone up fourfold since Independence. But our food production per acre is much less than that of other countries. Policies for growth in food grain production cannot be planned without taking into account the lives of small and marginal farmers. In the last 15 years, there has been a shift from food crops to cash crops in a big way. Not only has food crop production suffered as a result, but there has not been much of an increase in the export of cash crops. Now the rate of growth of food grain production is lower than the rate of population growth.

The issue over Bt brinjal gets worse with central government ministers contradicting each other. Three States, West Bengal, Orissa and Bihar, which account for 60 per cent of the crop, have categorically said no to Bt brinjal.

Do we really need Bt Brinjal?

Not at all! India is one of the largest producer of Brinjal. There are so many alternatives available to Bt technology. There are a whole range of pest management techniques, organic farming methods and Indian scientists have time and again proven their usefulness.

Actually, we can catch a direct flight to Delhi from Hyderabad or take a via-flight. The Bt Brinjal is that via flight with increased cost to all stake-holders and profit to some. It seems there is a nexus between the bureaucrats, government and industrialists to introduce Bt Brinjal.

It would have been a sell-out to the US. They have invested and partnered in our various agricultural programmes and there is pressure from that country to bring in the technology of their MNC Monsanto, which was found to be bribing^¹⁸ 140 Indonesian officers for introduction of Bt Cotton in their country. And we are no less corrupt, so it is best to avoid this crop.

And what gain will it be? Farmers of Punjab, who are growing Bt Cotton are having health problems already. The soil continuously used to grow Bt Cotton will become useless after sometime. Farms in Andhra Pradesh are growing organic crops on over 2 million hectares and it is giving better yield - why hasn’t that experiment been emulated elsewhere.

Bt Brinjal has generated much debate in India. The promoters say that Bt Brinjal will be beneficial to small farmers because it is insect resistant, increases yields, is more cost-effective and will have minimal environmental impact. On the other hand, concerns about Bt Brinjal relate to its possible adverse impact on human health and bio-safety, livelihoods and biodiversity.

Official Response to the controversy:-

The Ministry of Environment and Forests (MoEF) has a statutory body called the Genetic Engineering Approval Committee (GEAC) which has recommended the environmental release of Bt Brinjal on Genetic Manipulation (RCGM), a statutory body and two expert committees constituted by the statutory body and two expert committees constituted by the GEAC between 2006 and 2009. However the Minister of State (I/C) for Environment and Forests, responding to strong views raised both The Genetic Engineering Approval Committee (GEAC), the biotechnology regulator, on 14^th October, 2009 approved the commercial cultivation of genetically modified Bt brinjal. Certain experts on the committee are reported to have expressed strong objections which were however not taken into account. In the words of Scientist and Supreme Court nominee in the GEAC, Dr Pushpa Bhargava : “We hope the team can be given more time, that a decision should be deferred. The report that is now confidential but should be put out for public scrutiny”^¹⁹

Bt brinjal still needs the Government's nod before its release in the market. If it gets the nod, Bt brinjal will be the first genetically modified food in India.

The introduction of the genetically modified brinjal is part of an USAID programme called Agri-Biotechnology Support Programme (ABSP) under which the Indian Institute of Vegetable Research, Varanasi; University of Agricultural Sciences, Dharwad and Tamil Nadu Agricultural University, Coimbatore are working with Monsanto and Mahyco.

"If the GEAC carries forward the environmental release of Bt brinjal floodgates will be opened for nearly 60 genetically modified food crops in India, some of which are already in the pipeline like rice, corn, okra etc^²⁰."

PROS AND CONS OF GM CROPS

GM crops are resistant to some insects, thus bringing down use of pesticides. Then, genetically modified seeds believed to give a higher yield though that claim is being contested. But several reasons why we should be wary of GM crops. Such plants could produce highly toxic chemicals that cause cancer and Parkinson's disease. And Bt brinjal known to produce a protein in the vegetable cells that induce antibiotic resistance. This is seen as a major health problem. Rats fed with Bt brinjal had diarrhoea and a decrease in liver weight, and liver to body weight. Also, Bt brinjal appears to have 15 per cent less calories than normal brinjal. Farmers actually end up using a cocktail of pesticides as secondary pests increase on GM crops.

Impact of GM Food

GM food can cause cancer

French scientist Gilles-Eric Séralini unmasked the dangers of genetically modified brinjal, almost approved for commercial production in India. He shared with Savvy Soumya Misra his findings on Bt brinjal on the data submitted on Bt brinjal by Mahyco for approval from the Indian government. The data submitted to the Genetic Engineering Approval Committee (GEAC) of the Union environment ministry is not valid; it has not been signed by the scientist who conducted the tests. What is more scandalous is that the studies on the effects of Bt brinjal were conducted for just three months. If the product is to be consumed by humans, the tests should have been for a period of at least two years – the lifespan of a rodent.

On other tests that were needed^²¹

Apart from increasing the period of trial, tests should be conducted to ascertain the effect of such food on hormones. For studies on health impact, the quantity of GM crop in the diet given to rodents should be specified. The tests should be conducted on a higher number of animals.

Toxins in GM plants can cause cancer, hormonal and reproductive problems and disorders of the nervous system. These chronic diseases are exploding all over the world and to our knowledge bacteria or viruses are not causing them. They may be due to chemicals contained in food. So, we definitely do not need food full of synthetic chemicals.

On the effect on bees and butterflies

GM food will affect pollinators^²². The genetic pollution that artificial foods will usher will multiply many times over with passing time. The whole ecosystem will get polluted as all GM plants either contain or produce toxins.

On GM feed reaching humans through cattle and swine

Animals fed on GM food may have immunological defects and other problems that can affect humans who consume their meat. These animals should be labelled; Europe is preparing to label animals fed on GM crops. Labelling is important to trace the origin of animal products so that they can be recalled, if necessary. The actual concentration in GM food and feed is much higher than what we tested. Consuming it can even lead to defects in newborns^²³.

Pregnant mothers eating GM foods may endanger offspring^²⁴

1.Embryo development can be adversely affected by tiny amounts of substances in the mother’s diet.

2. A pregnant mother’s diet may even alter gene expression in children and be passed on to future generations.

3.GM crops may contain substances that impact normal fetal development, but have never been adequately tested for these effects.

PUBLIC HEARING ON BT.BRINJAL

The public hearing on Bt Brinjal conducted on January 31^st, 2010 at the Cental Research Institute for Dryland Agriculture (CRIDA) in Hyderabad. In this Consultation meeting Union Environment Minister Jairam Ramesh participated and said, “The Centre, after consultations with all concerned, would announce its decision on Bt. Brinjal by second week of February. This is an important issue and as such has to be dealt with all seriousness. This is the sixth such public consultation meeting. We will take a decision after the final meeting in Bangalore on February 6^th”.

The also got an opportunity to present his opinion to Minister Jairam Ramesh on Bt. Brinjal and submitted as follows:-

“I humbly suggest, please don’t create any situation in future, if bite by human being may not become more toxicity. If human being bites, no person or animal should not die. After through risk analysis, assessment, experiment to be introduced as food. Introduction should be made only after complete proved scientific experiment. Keeping in view the perspectives of patent and royalty to Multinational Company as seed Manufacturer. The Food Safety and Standards Authority of India administered by Ministry of Health and Family Welfare to be also involved in this”.

The Author/Researcher delivered opinion in the form of video can also viewable from the Official website of Environment and Forests^²⁵.

Finally, we have a decision: genetically modified (GM) foods are not landing on Indian dinner tables just yet. By imposing a moratorium on the commercial release of Bt Brinjal developed by Mahyco, Union environment minister Jairam Ramesh has chosen the path of caution in what has been in bruising battle. Unsurprisingly, there’s heartburn, reflecting the deep divide on the issue among scientists and policymakers. Even the celebrations are muted. Described as “courageous” by some, Jairam’s final call is being viewed as “subjective” by others.

Bt-Brinjal Commercial Cultivation Put On Hold

Giving in to intense opposition from NGOs and several states, government today put on hold commercial cultivation of genetically modified brinjal citing lack of clear consensus within the scientific community. Environment Minister Jairam Ramesh announced the decision to put a moratorium on the release of Bt-Brinjal till such time independent scientific studies establish, to the satisfaction of both the public and professionals, the safety of the product from long-term view on impact on human health.

The minister also made public a copy of his exhaustive report which relies on inputs received from stakeholders from all across the spectrum of scientists, civil society, academics, Chief Ministers of various states and others concerned.

Following is an excerpt from the statement issued on February 9, 2010^²⁶:

“Based on all the information presented in the preceding paragraphs and when there is no clear consensus within the scientific community itself, when there is so much opposition from the state governments, when responsible civil society organisations and eminent scientists have raised many serious questions that have not been answered satisfactorily, when the public sentiment is negative and when Bt-brinjal will be the very first genetically-modified vegetable to be introduced anywhere in the world and when there is no over-riding urgency to introduce it here, it is my duty to adopt a cautious, precautionary principle-based approach and impose a moratorium on the release of Bt-brinjal, till such time independent scientific studies establish, to the satisfaction of both the public and professionals, the safety of the product from the point of view of its long-term impact on human health and environment, including the rich genetic wealth existing in brinjal in our country.

A moratorium implies rejection of this particular case of release for the time being; it does not, in any way, mean conditional acceptance. This should be clearly understood.”

"I am not getting into any timeframe ... The moratorium will continue for as long as it is needed to establish public trust and confidence^²⁷," he said.

Ramesh made it clear that the moratorium was only confined to Bt-Brinjal and the decision did not cover the larger issue of genetic engineering and biotechnology in agriculture.

Required tests- No Laboratory

There were no laboratories in India^²⁸ that could perform the required tests to an internationally accredited standard, he claimed. Thus far, validated test protocols had not been announced, nor had sequence information been provided to civil society groups to enable independent testing of plant material/seeds, along with permission to send samples abroad to institutions that test, he said.

India-Earlier incidents of Ingredients of GM

In 2008 tests commissioned by Greenpeace(NGO), shown that Pepsico’s Doritos Corn Chips contains Genetically Modified Mon 863 and NK 603 variety corn ingredients. Both Mon 863 and NK 603 are Monsanto’s genetically modified corn varieties. Mon 863 has a bacterial gene to give pest tolerance, while NK 603 has a bacterial gene for herbicide tolerance. An Independent analysis last year, done by the Committee for Independent Research and Information On Genetic Engineering and French National Committee For Risk Assessment of GMOs had concluded that both Mon 863 and NK 603 pose serious health impacts. The find comes from India by Greenpeace after an independent laboratory in germany conducted Tests on products picked up randomly from a supermarket in New Delhi^²⁹

GM imports especially in the form of soybean oil have remained unchecked and unregulated over the years. In the countries of origin for this product (soyoil), there is no segregation of GM and non-GM soy. Majority of the production is from GM soy in the USA, Brazil and Argentina, from whom we import.

Some GE foods have found their way into the country through route of food aid. After the Orissa cyclone for instance, some of the food aid in the relief supplies was found to be GM-contaminated. It was only the alertness of civil society groups that discovered this. Later on, when American NGO’s like CARE and CRS sought to bring in some potentially GM contaminated food aid, the GEAC rejected some consignments, on the belief that these consignments are Star-Link-corn-contaminated^³⁰.

In 2006, the Ministry of Commerce, through the Director General of Foreign Trade (DGFT) put out a notification in April (Notification No.2(RE-2006)/2004-2009, dated 7^th April, 2006) stating that “at the time of import, all consignments containing products which have been subjected to genetic modification will carry a declaration stating that the product is genetically modified. In case a consignment does not carry a declaration and is later found to contain Genetically Modified Material, the importer is liable to penal action under the Foreign Trade Act, 1992”. For a few months subsequently, an exemption was made for soyabean oil imports. This notification also reiterated the need to obtain GEAC’s approval prior to importing.

On 10^th July 2007, the DGFT issued another notification stating that “import of GM rice is restricted. Import of rice in India is permitted only if the exporter is able to furnish a certificate from the competent authorities from country to export that the exported rice is GM Free”.

Meanwhile, through a notification in September 2007, GEAC unexpectedly exempted processed food products from regulatory approvals from its side. This was justified on the grounds that the new Food Safety and Standards Act (FSSA) will look the after GM food products from a food safety angle and that GEAC’s mandate is to ensure ‘environmental safety’.

GM technology arrived in India in 1995, when the US biotech giant Monsanto teamed up with India’s Mahyco to import Bt.Cotton Seeds, which could be crossed and repeatedly backcrossed with local varieties to ensure that they could adopt to local conditions.

The food regulation laws should protect consumer but should not be a constraint to industrial growth. The food safety is considered as a basic human right by FAO. There are certain standards, recommendations, legislations and agreements in national and international perspectives which ensures and emphasis more importance on Health, organisms, standards, certification etc. Those are Sanitary and Phytosanitary (SPS) Agreement under the World Trade Organization (WTO), Technical barriers to trade agreement(TBT), Rules for the manufacture, use/import/export and storage of hazardous micro organisms /genetically engineered organisms or cells, 1989, Food Safety and Standards Act, 2006, Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, Section 11 of the Customs Act, 1962 ,Cartagena Protocol., recommended by the Codex Alimentarius Commission.

Legal Control

I. Rules for the manufacture, use, import, export and storage of hazardous micro organisms, genetically engineered organisms or cells, 1989.

Regulation of GE in agriculture rests mainly with the Ministry of Environment and Forests in the Central Government of India, through the 1989 Rules of the Environment Protection Act, 1986. In many other countries, regulation of GMO’s happens through specially enacted gene technology legislations. Regulation just through rules has also meant that regulators are quite easily changing the rules frequently just by a simple gazette notification or as a decision noted on the minutes of their meetings.

The Concerned Environment Protection Act Rules have been brought into force in December 1989 “ With a view to protecting the Environment, nature and health in connection with the application of gene technology and micro-organisms”.

Under these Rules, a Committee called Genetic Engineering Approval Committee [GEAC] has been set up under the Ministry of Environment and Forests, for approval of activities involving large scale use of hazardous microorganisms and recombinants^³¹.

Competent Authorities^³²

(1) Recombinant DNA Advisory Committee (RDAC)

This committee shall review developments in Biotechnology al national and international levels and shall recommend suitable and-appropriate safety regulations for India in recombinant research, use and applications from time to time. The committee shall function in the Department of Biotechnology.

(2) Review Committee on Genetic Manipulation (RCGM).

This committee shall function in the Department of Biotechnology to monitor the safety related aspect in respect of on-going research projects and activities involving genetically engineered organisms/hazardous microorganisms. The Review Committee on Genetic Manipulation shall include representatives of (a) Department of Biotechnology (b) Indian Council of Medical Research (c) Indian Council of Agricultural Research (d) Council of Scientific and Industrial Research (e) other experts in their individual capacity. Review Committee on Genetic Manipulation may appoint sub groups. It shall bring out Manuals of guidelines specifying procedure for regulatory process with respect to activities involving genetically engineered organisms in research use and applications including industry with a view to ensure environmental safety. All ongoing projects involving high risk category and controlled field experiments shall be reviewed to ensure that adequate precautions and containment conditions are followed as per the guidelines. The Review Committee on Genetic Manipulation shall lay down procedures restricting or prohibiting production sale importation and use of such genetically engineered organisms of cells as are mentioned in the Schedule.

(3) Institutional Biosafety Committee (IBSC).

This committee shall be constituted by an occupier or any person including research institutions handling microorganisms/genetically engineered organisms. The committee shall comprise the Head of the Institution Scientists engaged in DNA work a medical expert and a nominee Of the Department of Bioechology. The occupier or any person including research institutions having microorganisms/genetically engineered organisms shall prepare A he assistance of the Institutional Biosafety Committee (IBSC) an uptodate on-site emergency plan according to the manuals/guidelines of the RCGM and make available copies to the District Level Committee/State Biotechnology Co-ordinating Committee and the Genetic Engineering Approval Committee.

(4) Genetic Engineering Approval Committee (GEAC)

This committee shall function as a body under the Department of Environment Forests and Wildlife for approval of activities involving large scale use of hazardous microorganisms and recombinants in research and industrial production from the environmental angle. The Committee shall also be responsible for approval of proposals relating to release of genetically engineered organisms and products into the environment including experiment Field trials.

II. Prevention of Food Adulteration Rules, 1955

(i)“37-E Labelling of Genetically Modified Food^³³: Genetically engineered or modified Foods means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not contained genetically modified or engineered organisms obtained through modern biotechnology”.

In addition to the labeling provisions as prescribed under these rules, the Genetically Modified Food shall also conform to the following labeling requirements:-

(a) a GM Food, derived there from , whether it is primary or processed or any ingredient of food, food additives or any food product that may contain GM material shall be compulsorily labeled, without any exceptions;

(b) the label of all package (s) of GM Food(s) or foods containing ingredients, derived from Biotechnology or Bioengineering or food additives or any food product that may contain material shall indicate that they have been subject to genetic modification. These provisions will be applicable to all such products both imported or domestically produced; and

(c) the label of imported GM Food or derived there from whether it is primary or processed or any ingredient of food, food additives or any food product that may contain GM material shall also indicate that the product has been cleared for marketing and use in the country of origin so that the verification, if needed can be taken up with that country without having to resort to testing.”

(ii) After rule 48-E of the said rules shall be inserted, namely,-

“48-F Restriction on Sale of Genetically Modified Food^³⁴:- No person shall except with approval of and subject to the conditions that may be imposed by the Genetic Engineering Approval Committee (GEAC) constituted under the Environment Protection Act, 1986, manufacture, import, transport, store, distribute or sell, raw or processed food or processed food or any ingredient of food, food additives or any food product that may contain GM material in the country:

Provided that in case of imported genetically modified foods, the importer shall submit documents supporting the purported clearance at the time of import.”

III. THE SEEDS BILL, 2004^³⁵

(28) “transgenic variety” means seed or planting material synthesized or developed by modifying or altering the genetic composition by means of genetic engineering;

Powers of Committee to specify minimum limits of germination, purity, seed health, etc.

6. The Committee may, by notification, specify–

(a) the minimum limits of germination, genetic and physical purity, and seed health, with respect to any seed of any kind of variety;

(b) the mark or label to indicate that such seed conforms to the minimum limits of germination, genetic and physical purity, and seed health specified under clause (a), and other particulars, such as expected performance of the seed in accordance with the information provided by the producer under section 14 which such mark or label may contain.

Special provision for registration of transgenic varieties.

15. (1) Notwithstanding anything contained in section 14, no seed of any transgenic variety shall be registered unless the applicant has obtained clearance in respect of the same as required by or under the provisions of the Environment (Protection) Act, 1986:

Provided that the Registration Sub-Committee may, subject to clearance under the said Act, grant provisional registration, for a period not exceeding two years on the basis of information furnished by the producer on the results of multi-locational trials in the prescribed manner.

(2) Save as otherwise provided in sub-section (1), the form and manner in which and procedure for registration of transgenic variety of seed and the fee payable thereto shall be the same as applicable in case of registration under section 14.

Cancellation of registration of seeds of kinds and varieties.

16.(1) The Registration Sub-Committee may cancel any registration granted under section 13 or section 15 or any one or more of the following grounds, namely:-

(a) that the holder of the certificate has violated any of the terms and conditions of the registration; or

(b) that the registration has been obtained by misrepresentation or concealment of essential data; or

(c) that the variety is not performing in accordance with the information provided by the producer under sub-section (3) of section 14 or has become obsolete or has outlived its utility; or

(d) that prevention of commercial exploitation of such variety of seeds is necessary.

(i) in the public interest;

(ii) to protect public order or public morality; or

(iii) to protect human beings, animal and plant life and health to avoid serious prejudice to the environment.

(2) No order of cancellation of registration under this section shall be made unless the holder thereof or the affected person concerned has been given a reasonable opportunity of showing cause in respect of the grounds for such cancellation.

What would also govern regulation within the industry is the Patents Act of 2005, since the technology and genes can be patented now in the country. In an ideal situation, what should also be governing India’s regulation of GM crops are its commitments in international conventions like the Cartagena Protocol on Biosafety and the provisions therein- in reality, however, critical elements of the Cartagena Protocol are missing in their implementation in India.

IV. Foreign Trade (Development and Regulation) Act, 1992

Section 3: Powers to make provisions relating to imports and exports-(1) The Central Government may, by order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports.

(2) The Central Government may also, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order, the import or export of goods.

(3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 and all the provisions of that Act shall have effect accordingly.

The Government of India (Directorate General of Foreign Trade) had imposed a ban on import of milk and milk products from China vide notification No. 46 dated 24/09/2008 for three months. The ban for three months was imposed as an interim step to enable other Departments to put in place suitable measures, to restrict import of contaminated milk products in the country. The ban was extended vide notification No. 67 dated 01/12/2008 for another six months up to 23/06/2009. The import of chocolates and chocolate products and candies/ confectionary / food preparations with milk and milk solids as an ingredient were also included in the ban. Consultations were held on 10th June 2009 with the concerned Departments / Ministries of the Government of India and experts in the dairy industry to review the ban on import of dairy products from China.

Surprisingly in 2007 United Arba Emirates have confirmed that 40% of the food in the

UAE is genetically modified yet is sold to the end users without proper labelling.

V. Section 11 of the Customs Act, 1962 provides as under:-

Power to prohibit importation or exportation of goods-(1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description.

(2) The purposes referred to in sub-section (1) are the following:-

(k) the protection of human, animal or plant life or health;

(o) the prevention of deceptive practices

(u) the prevention of the contravention of any law for the time being in force; and

(v) any other purpose conducive to the interests of the general public;

VI. FOOD SAFETY AND STANDARDS ACT, 2006:

According to this Ac “food”^³⁶ means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance, or quality;

It shall be the duty^³⁷ of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food. The Food Authority shall also-

(a) provide scientific advice and technical support to the Central Government and the State Governments in matters of framing the policy and rules in areas which have a direct or indirect bearing on food safety and nutrition;

(b) search, collect, collate, analyse and summarise relevant scientific and technical data particularly relating to-

(i) food consumption and the exposure of individuals to risk related to the consumption of food;

(ii) incidence and prevalence of biological risk;

(v) identification of emerging risks; and

(vi) introduction of rapid alert system;

(c) promote, co-ordinate and issue guidelines for the development of risk assessment methodologies and monitor and conduct and forward messages on the health and nutritional risks of food to the Central Government, State Governments and Commissioners of Food Safety;

(d) provide scientific and technical advice and assistance to the Central Government and the State Governments in implementation of crisis management procedures with regard to food safety and draw up a general plan for crisis management and work in close co-operation with the crisis unit set up by the Central Government in this regard;

(f) provide scientific and technical assistance to the Central Government and the State Governments for improving co-operation with international organizations;

(j) Contribute to the development of international technical standards for food, sanitary and phyto-sanitary standards;

(m) promote consistency between international technical standards and domestic food standards while ensuring that the level of protection adopted in the country is not reduced; and

(n) promote general awareness as to food safety and standards.

General principles to be followed in administration of Act^³⁸:- The Central Government, the State Governments, the Food Authority and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following principles, namely:-

(1) (a) endeavour to achieve an appropriate level of protection of human life and health and the protection of consumer’s interests, including fair practices in all kinds of food trade with reference to food safety standards and practices;

(c) where in any specific circumstances, on the basis of assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health protection may be adopted, pending further scientific information for a more comprehensive risk assessment;

(d) the measures adopted on the basis of clause (c) shall be proportionate and no more restrictive of trade than is required to achieve appropriate level of health protection, regard being had to technical and economic feasibility and other factors regarded as reasonable and proper in the matter under consideration;

(e) the measures adopted shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health being identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment;

(f) in cases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk;

(2) The Food Authority shall, while framing regulations or specifying standards under this Act-

(c) undertake risk assessment based on the available scientific evidence and in an independent, objective and transparent manner;

(e) ensure protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to foods they consume;

Genetically modified foods, organic foods, functional foods, proprietary foods, etc^³⁹ :- Save as otherwise provided under this Act and regulations made thereunder, no person shall manufacture, distribute, sell or import any novel food, genetically modified article of food, irradiated food, organic foods, foods for special dietary uses, functional foods, neutraceuticals, health supplements, proprietary foods and such other articles of food which the Central Government may notify in this behalf.

“genetically engineered or modified food”^⁴⁰ means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered organisms obtained through modern biotechnology;

Packaging and labeling of foods^⁴¹:- (1) No person shall manufacture, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labeled in the manner as may be specified by regulations:

Provided that the labels shall not contain any statement, claim, design or device which is false or misleading in any particular concerning the food products contained in the package or concerning the quantity or the nutritive value implying medicinal or therapeutic claims or in relation to the place of origin of the said food products.

(2) Every food business operator shall ensure that the labeling and presentation of food, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, does not mislead consumers.

All imports of articles of food to be subject to this Act^⁴²:-

(1) No person shall import into India-

(i) any unsafe or misbranded or sub-standard food or food containing extraneous matter;

(ii) any article of food for the import of which a licence is required under any Act or rules or regulations, except in accordance with the conditions of the licence; and

(iii) any article of food in contravention of any other provisions of this Act or of any rule or regulation made there under or any other Act.

(2) The Central Government shall, while prohibiting, restricting or otherwise regulating import of articles of food under the Foreign Trade (Development and Regulation) Act, 1992, follow the standards laid down by the Food Authority under the provisions of this Act and the Rules and regulations made thereunder.

Compensation in case of injury or death of consumer^⁴³:- (1) Without prejudice to the other provisions of this Chapter, if any person whether by himself or by another person on his behalf, manufactures or distributes or sells or imports any article of food causing injury to the consumer or his death, it shall be lawful for the Adjudicating Officer or as the case may be, the Court to direct him to pay compensation to the victim or the legal representative of the victim, a sum-

(a) not less than five lakh rupees in case of death;

(b) not exceeding three lakh rupees in case of grevious injury; and

Provided that the compensation shall be paid at the earliest and in no case later than six months from the date of occurrence of the incident:

Provided further that in case of death, an interim relief shall be paid to the later next of the kin within thirty days of the incident.

(2) Where any person is held guilty of an offence leading to grievous injury or death, the Adjudicating Officer or the Court may cause the name and place of residence of the person held guilty, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the Adjudicating Officer to the Court may direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

(3) The Adjudicating Officer or the Court may also-

(a) order for cancellation of license, recall of food from market, forfeiture of establishment and property in case of grievous injury or death of consumer;

(b) issue prohibition orders in other cases.

Penalty for contravention of provisions of this Act in case of import of articles of food to be in addition to penalties provided under any other Act^⁴⁴-(1) Any person who imports any article of food which is in contravention of the provisions of this Act, rules and regulations made there under, shall, in addition to any penalty to which he may be liable under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 and the Customs Act, 1962 be also liable under this Act and shall be proceeded against accordingly.

(2) Any such article of food shall be destroyed or returned to the importer, if permitted by the competent authority under the Foreign Trade (Development and Regulation ) Act, 1992 or the Customs Act, 1962, or any other Act, as the case may be.

The above all legislations are having the provisions which can legally control the noxious genetically modified foods. But still the fate of the provisions are not in implementation to a larger extent. The recent move of Government of India to introduce the Biotechnology Regulatory Authority of India Bill, 2009 in the sessions of Parliament is a perfect example of the growth of corporate propaganda as a means of protecting corporate power against democracy.

The BRAI Bill has a number of most disconcerting provisions that cause profound concerns among all of us who are demanding a democratic debate on the need to bring in genetic engineering technology into the arena of food and farming in India. In the wake of the recent Bt Brinjal controversy in the nation, which has steered a nationwide public debate over the safety and viability of Genetically Modified food, the mad rush to introduce the bill becomes more so clandestine. Let us analyze some provisions of the aforementioned bill which shall shed some light on the flawed policy of the government and the grave repercussions which may occur in case of the bill becoming an act.

The National Biotechnology Regulatory Authority Bill (NBRA), 2008- Biotechnology Regulatory Authority of India Bill (BRAI), 2009.

... the 20th century has been characterized by three developments of great political importance: The growth of democracy, the growth of corporate power, and the growth of corporate propaganda as a means of protecting corporate power against democracy^⁴⁵.

-- Alex Carey, Australian social scientist

The National Biotechnology Regulatory Authority Bill (NBRA), 2008 has now been revised and renamed as Biotechnology Regulatory Authority of India Bill (BRAI), 2009. We can describe it as an egregious and ominous legislation. The Bill is a secret document and being worked on under the Official Secrets Act (OSA) of 1923 vintage. It should be noted that OSA is a colonial law with express purpose of protecting the government from the people. What could be the reason for a democratically elected government to frame a bill secretively on an issue that affects every Indian man, woman and child?

Background

The BRAI Bill, 2009 is essentially being brought on board to regulate research, manufacture, import, and transfer of modern biotechnology products such as Genetically Engineered Organisms (GMOs). The underlying presumption in the Bill is that agriculture biotechnology is acceptable and safe and its research applications must continue because the technology offers opportunity ‘to address important needs
related to health, agriculture, food production and environment….’

The Bill pre-supposes the importance of modern biotechnology and seeks to give primacy over other conventional and radical seed development, and farm management techniques. Because of that presumption the Bill only seeks to regulate the introduction and application of modern biotechnology. This stands antithetical to the position of independent scientists, major farmers’ organizations (in India as well as around the world), consumers’ association and the civil society.

Applicability

The Bill states that ‘it is expedient in the public interest that the Union should take under its control the regulation of organisms, products and processes of modern biotechnology industry’. At the moment agriculture is a state subject but the bill seeks to centralize critical decisions in the hands of members of the BRAI who will only be responsible to the Central Government. The bill, when (and if) it becomes Act, shall be applicable all over India.

Penalties

Most obnoxious part of the bill is the power to BRAI to impose penalties if there is any criticism of modern biotechnology by any citizen, writer, journalist, scientist, research institutions or universities.

The penalties for “misleading public about organism and products” are
6 to 12 months of imprisonment and fine of up to Rs two lakhs or both.

There are Certain Multinational Companies who now control GMOs and GM seeds have repeatedly violated national laws on food safety and environment protection. Bayer’s illegally planted LL601 event contaminated American rice. The safety of GM foods has been questioned by responsible independent scientists, yet GM foods are being marketed without label in the US and many products are being imported into India without consumers’ knowledge.

If anyone, even if an eminent scientist like Dr Bhargava criticizes the inadequacy of biosafety tests (which is widely known), he can be imprisoned and fined.

It is up to Members of Parliament and the civil society to oppose and completely scrap the proposed bill. Instead, wide public consultation should ensue on an issue that affects us all. Even while some of the most important legislations such as the Women’s Reservation Bill and the Food Security Bill are crying for an early passage in the Parliament, the Government has shown a surprising hurry, almost bordering on obscenity, to introduce a new Bill called the Biotechnology Regulatory Authority of India in the current session of Parliament. It does not need a detective’s skill to understand the reason for this urgency. The national debate around Bt Brinjal steered by the Environment The BRAI, still shrouded in secrecy, has a number of most disconcerting provisions that cause profound concerns among all of us who are demanding a democratic debate on the need to bring in genetic engineering technology into the arena of food and farming in India. The Bt Brinjal debate was the first of its kind and offered a glimmer of hope that we, as citizens of this country, can participate in making the decisions on what we grow and eat. But even before this glimmer can grow into a beacon, efforts are afoot to extinguish it by introducing the draconian BRAI Bill.

This is a dangerous argument by itself. The way the Bill is being fashioned is an indication to this distance learning of its farmers.

How does BRAI want to treat the environmental citizens of this country who would like to voice their concerns against genetic engineering? Read the following clause in the Bill^⁴⁶:

63. Whoever, without any evidence or scientific record misleads the public about the safety of the organisms and products specified in Part I or. Part II or Part III of the Schedule I, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and with fine, which may extend to two lakh rupees or with both.

Reading this, one doesn’t believe that one is living in a democratic country! What is the purport of this clause? What kind of evidences are admissible before an environment activist like me or a media person like you are put behind bars for pointing to the dangers of GE foods? The very core of the BRAI mandates the Authority to make a science-based evidence to clear any biotechnology product. The term science based itself is contentious, especially in the context of “modern biotechnology” the cause of which the Bill espouses.

Increasingly, the world over, the problems and limitations of Genetic Engineering are being seen clearly by all reputed world bodies. In the International Assessment on Agricultural Science and Technology for Development [IAASTD], in which over 400 world class scientists participated under the banner of the World Bank, FAO, WHO, UNESCO etc., there was clearly a refusal to endorse genetic engineering as a solution to food security.

Science is not necessarily truth if it is opposed to them. This is the environment that will confront us tomorrow once the BRAI becomes an Act.

In the BRAI, the people who will decide what organisms can be permitted, imported and field-trialed will be a group of three who will all be composed of scientists in the area of biotechnology or medicine or industrial science. It has no place for environmentalists, farmers or food consumers. Thus, all our rights to decide for ourselves what we farm and what we eat will be snatched away from us. And we cannot go to normal courts to challenge them. The BRAI will set up its own Appellate Tribunal which will have the jurisdiction to hear arguments on the issues concerning biotechnology. If one wants to appeal against the decisions of this Tribunal, the only court we can go to is the Supreme Court of India. Who will have the time, money and energy to go into such lengthy and expensive legal processes? This is the surest way of disempowering citizen activists of the country.

The bill overrides the RTI and the state government jurisdiction.

PUBLIC INTEREST LITIGATION:

A Public Interest Litigation has been filed in the Supreme Court by Aruna Rodrigues and three other petitioners in 2005, on which the Supreme Court had ordered the stoppage of any further trials of any GM crops in the country in September 2006.

On February 13^th 2008, when the petitioners put in a contempt petition with evidence of GEAC overstepping the Court’s orders for giving approvals, the Court allowed GEAC to consider applications for open air field trials and asked GEAC to invite Dr Pushpa Bhargava, noted molecular biologist and Dr M S Swaminathan, agriculture scientist to its meetings when applications are considered any application presented to it in accordance with law and take appropriate decisions after considering all aspects, including biosafety aspects. The GEAC was asked to consider apprehension expressed by experts that open air field trials may cause damage to the environment and cause contamination. The Court also ordered GEAC to publish the guide lines for granting approval if any on its website.

The court directed the GEAC to ensure that there was a distance of at least 200 metres between the trial fields and other fields cultivating the same crop.

Still the PIL is pending in Supreme Court, the Prospective date is 13^th August, 2010^⁴⁷.

Declaration of GM Free State

The Government of Kerala has informed that they have taken a decision to prohibit environmental release of all Genetically Modified (GM) seeds and keep the state totally GM free. The Kerala Government has written to Mr.Sharad Pawar, the Central Minister for Agriculture about the unique bio-diversity of the regions of Kerala and Western Ghats and not turn it into an experimental lab for GM Crops. It requested the Central Government to declare these regions a GM Free Zone.

Even as the central government is assessing the policy on case by case basis, the Government of Kerala informed that they have taken a decision to prohibit environmental release of all Genetically Modified (GM) seeds^⁴⁸ and keep the state totally GM free.

The union minister of state for environment and forests, Jairam Ramesh today informed that house that a final view on the commercialization of GM plants is taken only when scientific studies establish that it is safe from the point of view of its long term impacts on human health and environment.

However, as agriculture is a state subject, it is the prerogative of the state governments to decide whether to adopt GM seeds or not in their commercial production.

Opinions/ Experts speak...on Bt Brinjal and BRAI Bill, 2009

India doesn't need Bt Brinjal: PM Bhargava, Supreme Court nominee on the Genetic Engineering Approval Committee^⁴⁹: There should be an institutional set-up for the tests to be carried out on Bt brinjal. The tests should be carried out on animals and in some cases, even monkeys. I have personally never opposed Bt brinjal but tests have to be carried out for long-term health effects.

He is the person, who coined the term ‘genetic engineering’ back in the 1970s. Dr Pushpa Mittra Bhargava, India’s most globally cited scientist in genetic research, was the only independent observer appointed by the Supreme Court to the Genetic Engineering Approval Committee that said yes to Bt Brinjal, despite his reservations. He opined as follows:

“I wanted a moratorium on all GM crops for the next 5-8 years till the time there is reliable scientific data from the Indian scientific community – so that has happened. Now a network of indigenous labs should be set up where the technology should be tested on our home conditions”^⁵⁰. He also answered to question that there was no absolute scientific basis on which GEAC said ‘yes’ to Bt Brinjal. The trials conducted are inadequate. The tests and research referred to by the GEAC are done by the companies Monsanto and Mahyco (Maharashtra Hybrid Seed Company) - the entities which are bringing the crop to India. There are 30 tests that need to be done before approving genetically modified plants, but these have not been conducted. Bad interpretation of the data given by these companies led to the initial yes to Bt Brinjal^⁵¹.

Aruna Rodrigues

Aruna Rodrigues, whose public interest writ against GM crops is in the Supreme Court, said the Bill failed to recognise the basic scientific fact that all GM organisms are inherently hazardous. She also questioned the ministry of science and technology hosting the BRAI when the subject actually was related to food safety, health and environment.

P.Ananda Kumar, director of the National Research Centre on Plant Biotechnology^⁵² Says P. Ananda Kumar, director of the National Research Centre on Plant Biotechnology, “This is not a very encouraging development for scientists in public institutions who have been struggling to develop GM crops.” Hopefully, the policymakers will use the moratorium window to strengthen the regulatory process. And provide consumer choice through mandatory labelling.

M S Swaminathan, Agricultural scientist and father of the green revolution^⁵³: I think it is a wise decision. It is appropriate to look at the problems carefully. The regulatory system has to be credible, transparent and effective. The environment minister would like to utilise the time period for studies and tests which should be completely shared with the public. The government should handle the issue on a case by case basis and not generalise. They have some benefits also. How we use it is the issue.

Canada-based eminent microbiologist Shiv Chopra

Canada-based eminent microbiologist Shiv Chopra compared Bt toxins to snake venom^⁵⁴. He said the soil bacterium Bacillus thuringiensis (Bt) spits out poison only when it feels threatened. But when its toxin-producing gene is incorporated into crops like brinjal, it produces poison all the while^⁵⁵.

He himself is a crusader who refused to be silenced about GE hazards and also on the subject of the GE bovine growth hormone for cattle to yield more milk and meat. It was due to his efforts that the GE hormone for cattle was banned in Canada and the European Union.

Today’s science is peculiar which does not bother about dangers associated with the GE processes. Above all it is a sin and we have no right to intervene in the biological process of a living organism, he added. Once the gene is released, it would for sure destroy the 2,400 different varieties of natural brinjal that the Indian farmers grow.

Monsanto’s recently admitted

For the first time anywhere in the world, biotech agriculture giant Monsanto has admitted that insects have developed resistance to its Bt cotton crop. Field monitoring in parts of Gujarat has discovered that the Bt crop is no longer effective against the pink bollworm pest^⁵⁶. The company is advocating that Indian farmers switch to its second-generation product to delay resistance further. Monsanto's critics say that this just proves the ineffectiveness of the Bt technology, which was recently sought to be introduced in India in Bt brinjal as well. In November 2009, Monsanto's scientists detected unusual survival of the pink bollworm pest while monitoring the Bt cotton crop in Gujarat. In January and February, samples taken from the field were tested in Monsanto's laboratories. It has been confirmed that pink bollworm is now resistant to the pest-killing protein of Bt cotton in four districts — Amreli, Bhavnagar, Junagarh and Rajkot.

Critics point out that the Indian regulatory regime with regard to GM crops has never been assessed thoroughly as to whether the right questions are being asked with regard to GM risk assessment in Indian conditions. As in other parts of the world, the current safety assessments are inadequate to catch most of the harmful effects from GM crops, that too in an early warning system.

WHAT CAN WE DO?

Every human being is a consumer in day today life availing goods and services for his necessity and fittest survival. All of us are consumers of food. As a consumer, We have to do the following checkouts for efficacious results:

1. As a consumer, begin by resolving that we will reject any GM foods, even they are allowed based on the current faulty regulatory regime. When we purchase our food items, including packaged products, vegetables, rice etc., insist to know that it is GE-Free.

2. We have to watch out especially for vegetables, rice and products containing soya, corn, cottonseed, canola etc.

3. We have to reject food from GM-producing countries, especially ones which don’t segregate GM from non-GM.

4. Better to go for organic.

5. We have to support farmers who are into ecological farming by purchasing their produce. If our friend or neighbour or family member is a farmer, resolve that we will not plant any GM seeds on farm. Try and build seed banks for your community to fall back on. Ensure a diversity of crops and varieties of high quality in these Seeds Banks. We have to take initiative along with otheres, create GM-Free zones/communities/villages/SHG’s/Districts etc. Do not wait for the government to take a policy level decision on this. Pro-actively take a decision where it concerns you and your local resources. It is the constitutional right of Panchayats to resolve to remain GE-Free, after getting engaged in the debate.

6. Please get in touch with your local councilors, legislators, Members of Parliament and ensure that they are aware of the ramifications of this irreversible technology. Create an informed public debate wherever you are, whenever you get an opportunity. Get them to reject the technology, after understanding the full implications of the technology for farmers and consumers of the country and after sharing all relevant information. Get political parties to take a stand and base your voting decisions keeping their stand in mind.

7. Try and influence your state government to have a sustainable vision for agriculture and to take a pro-farmer decision on this matter. Get them to announce the state as GE-Free state.

8. Watch out for secret and unscientific field trails happening around you. Guidelines by GEAC for field trails require Panchayat’s consent before a trial begins. Ensure that Panchayats are aware of this. If your district or state does not have the required institutions for overseeing GE-related matters as required under the EPA, build pressure until such institutions are created. Educate them about the various implications of GE once they are formed.

9. Encourage media representatives to keep themselves informed on the matter and to create an informed public debate on the technology. Ask them to be the watchdogs for regulatory enforcement.

Suggestions:-

1. We have to educate our neighbours and consumers and ensure of food cautiousness.

2. Politicians should supposed to serve the people of India, instead serving the interests of biotech seed corporations.

3. The government to quash the BRAI Bill even before it is tabled in the Parliament and earn the respect of its citizens while restoring faith that this government respects democracy and the well-being of its citizens.

4. GM crops should be introduced in our country only after proven tests and experiments.

5. The regulation and risk assessment of GM crops must address two questions. First, what is the degree of enforcement and commitment to keeping India safe? And second, what is required to regulate this hazardous technology before the environmental release of any GMO [genetically modified organism]? The need for extreme caution arises from the fact that once released into the environment, these organisms cannot be recalled.

6. There are no liability laws in this country. For example, if a farm is growing Bt Brinjal and the field beside it is producing organic Brinjal, then who will take responsibility of mutation of the natural Brinjal? The whole approach is quite absurd, unscientific and unplanned. It is no longer in question that GM technology is unpredictable and imprecise, that too when released in an open environment situation.

7. We must know what we are eating and to have a choice in this matter. The reality is that we are eating GM all the time without our knowledge.

8. Labelling laws need to be drastically tightened to ensure people are aware of food that is genetically modified

9. Hopefully, the policymakers will use the moratorium window to strengthen the regulatory process. And provide consumer choice through mandatory labeling.

10. To establish right to healthcare with the above scenario certain first essential steps will be compulsory:

11. Equating directive principles with fundamental rights through a constitutional amendment.

12. Incorporating a National Health Act which will organize the present healthcare system under a common umbrella organization as a public-private mix governed by an autonomous national health authority which will also be responsible for bringing together all resources under a single-payer mechanism

13. Generating a political commitment through consensus building on right to healthcare in civil society.

14. Development of a strategy for pooling all financial resources deployed in the health sector.

15. It is necessary to eradicate public health care system which provides selective care through a multiplicity of schemes and programs, and discriminates on the basis of residence (rural-urban) in providing for entitlements for healthcare.

16. The Author/Researcher hopes that Genetic Modification or Genetic Engineering is not the solution to the food security problem. Instead, Government can enhance more funding for agriculture that emphasizes solutions to the problems faced by poor farmers.

1 Better Health Channel, “Food culture and religion”available at

http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Food_culture_and_religion?open (Last visited on 25^th May’2010)..

2 Amina Mohammed, “Family Diet In Islam:The Importance of Food and Correct Nutritional Habits” available at http://islamic-world.net/sister/h23.htm (Last Visited on May 27^th, 2010).

3 God web, “Food as a source of symbolism in Christianity” available at http://www.godweb.org/food.htm (Last visited on 25^th May’2010).

4 Nygaard, David F, “World population projections, 2020” available at http://ideas.repec.org/p/fpr/2020br/5.html (Last Visited on June 16, 2010).

5 Y.Chandra Sekhar(2005). “Genetically Modified Foods-An Introduction”.Hyderabad:The Icfai University Press.

6 The National Public Consultation held at Kolkatta,Bhubaneswar, Ahmedabad, Hyderabad, Bangalore, Nagpur and Chandigarh. In Hyderabad held on January 31^st , 2010. Under the yellow placard (Research Scholar, Scientists, Faculty) the Author also participated and delivered the opinion.

7 Ministry of Environment and Forests, Government of India: Videos on consultations, “National Consultations on Bt Brinjal, Hyderabad”-Part III available at http://moef.nic.in/modules/others/?f=btvideo3 (Last Visited on May 27^th, 2010).

8 S Venku Reddy, M. Suryamani, K.L.Srivastava, T.Goverdhan Reddy (2004). “Biotechnology for sustainable Agriculture”.Hyderabad:B S Publications.

9 Rex L Navarro, S Gopikrishna Warrier and Crispin C Maslog. “Genes are Gems:Reporting Agri-Biotechnology”: ICRISAT(International Crops Research Institute for the Semi-Arid Tropics).

10 Deborah B. Whitman. Genetically Modified Foods: Harmful or Helpful, May25th, 2010, available at, http://www.csa.com/discoveryguides/gmfood/overview.php (Last Visited on May25th, 2010)

11 DVD, “Poison on Platter”(film), Mahesh bhatt(Concept and Presentation), Ajay Kanchan(Script and Direction), a ‘cac’ production; appears in between 1 minute 45 seconds-2minute 2 seconds

12 DVD, “Poison on Platter”(film), Mahesh bhatt(Concept and Presentation), Ajay Kanchan(Script and Direction), a ‘cac’ production; appears in between 23 minute -23 minute minute 24 seconds

13 GE cultivation bans in Europe available at http://www.gmo-free-regions.org/gmo-free-regions/bans.html (Last Visited on May 28^th , 2010).

14 Reuters, London(Wed, Aug 13, 2008), “Prince Charles says GMO crops will be "disaster" available at http://www.reuters.com/article/idUSLD10926220080813 (Last Visited on May 29^th, 2010).

15 Debashree Mukherjee(2008). “Genetically Modified Crops-Issues and Perspectives”.Hyderabad:The Icfai University Press.

16 Centre for Sustainable Agriculture (CSA), “The story of Bt. Cottonin Andhra Pradesh:Erratic Processes and Results”, February, 2005 available at http://www.grain.org/research_files/Story_of_Bt_Cotton.pdf (Last Visited on June 16, 2010).

17 Kavitha Kuruganti and G V Ramanjaneyulu(2008).“Genetic Engineering in Indian Agriculture”:An Introductory Hand Book,.Centre for Sustainable Agriculture, Secunderabad available at http://www.indiagminfo.org/updates/GE%20Handbook-CSA-march2008.pdf (Last Visited on June 16, 2010).

18 PM Bhargava, “India doesn`t need Bt Brinjal” available at http://biz.zeenews.com/interviews/story.aspx?newsid=27 (Last Visited on June 16, 2010)

19 IANS, GEAC nod to commercial release of Bt brinjal, May 26^th ,2010, available at http://ibnlive.in.com/news/geac-nod-to-commercial-release-of-bt-brinjal/103254-3.html ( Last Visited on May 26^th, 2010).

20 IANS, “GEAC nod to commercial release of Bt brinjal” available at http://ibnlive.in.com/news/geac-nod-to-commercial-release-of-bt-brinjal/103254-3.html (Last Visited on June 16, 2010).

21 Submitted by vermont on October 27, 2009, “GM Food Can Cause Cancer” available at http://healthfreedoms.org/2009/10/27/gm-food-can-cause-cancer/ (Last Visited on June 16, 2010).

22 ibid

23 ibid

24 Jeffrey M.Smith, (First Indian edition 2009) “Genetic Roulette”: Other India Press in association with South Against Genetic Engineering (SAGE) and Deccan Development Society (DDS), Hyderabad.

25 Ministry of Environment and Forests, Government of India: Videos on consultations, “National Consultations on Bt Brinjal, Hyderabad”-Part III available at http://moef.nic.in/modules/others/?f=btvideo3 (Last Visited on June 16, 2010).

26 NEW DELHI, “Bt-Brinjal Commercial Cultivation Put On Hold” available at http://news.outlookindia.com/item.aspx?674336 (Last Visited on June 16, 2010).

27 Spardha, “India says No to Bt-brinjal” available at http://spardha.wordpress.com/2010/02/09/india-says-no-to-bt-brinjal/ (Last Visited on June 15, 2010).

28 V. VENKATESAN, “Legal struggle”, FRONTLINE Volume 27 - Issue 05 :: Feb. 27-Mar. 12, 2010 available at http://www.flonnet.com/fl2705/stories/20100312270501400.htm (Last Visited on May 27^th, 2010).

29 Albin Paul, Pepsi selling Food containing Genetically Modified Products, May 26^th, 2010, available at http://microarray.wordpress.com/2008/05/07/pepsi-selling-food-containing-genetically-modified-products/ (Last Visited on May 26^th, 2010).

30 Kavitha Kuruganti and G V Ramanjaneyulu(2008).“Genetic Engineering in Indian Agriculture”:An Introductory Hand Book (for private circulation only).Centre for Sustainable Agriculture, Secunderabad

31 As published in Gazette of India, Extraordinary, Part II 3(i), dt. 5.12.1989 W.e.f. 1.10.1993, vide S.O. 677(E), dt. 13.9.1993.

32 Rule 4 of Rules for the manufacture, use, import, export and storage of hazardous micro organisms, genetically engineered organisms or cells, 1989.

33 Inserted by Draft Notification No. GSR152(E) dated 10.03.2006 available at http://www.mohfw.nic.in/152.pdf (Last Visited on May 26^th , 2010)

34 Inserted by Draft Notification No. GSR152(E) dated 10.03.2006 available at http://www.mohfw.nic.in/152.pdf (Last Visited on May 26^th , 2010.

35 The Seeds Bill, 2004, Department of Agriculture & Cooperation, Ministry of Agriculture, Government of India available at http://agricoop.nic.in/seeds/seeds_bill.htm#Definitions.

36 Section 3(j) of Food Safety and Standards Act, 2006

37 Section 16 of the Act, ibid.,

38 Section 18, ibid.,

39 Section 22 of the Act

40 Sectioion 22(2) of the Act

41 Section 23 of the Act

42 Section 25 of the Act

43 Section 65 of the Act

44 Section 67 of the Act, ibid.,

45 “POLITICS QUOTES”, available at http://www.betterworld.net/quotes/politics-quotes.htm (Last Visited on June 16, 2010)

46 BT7TC/NBRA/03/2008, Government of India, Ministry of Science and Technology, Department of Biotechnology, THE BIOTECHNOLOGY REGULATORY AUTHORITY OF INDIA BILL, 2009 available at http://www.indiaenvironmentportal.org.in/files/Biotech-authority-bill.pdf (Last Visited on June 16, 2010).

47 Case status, Supreme Court of India, Status of : Writ Petition (Civil) 260 OF 2005, ARUNA RODRIGUES & ORS. .Vs. UNION OF INDIA & ORS available at http://courtnic.nic.in/supremecourt/caseno.asp (Last Visited on June 16, 2010).

48 NEW DELHI (Commodity Online), “Kerala prohibits GM crop cultivation” available at http://www.commodityonline.com/news/Kerala-prohibits-GM-crop-cultivation-26356-3-1.html (Last Visited on June 16, 2010).

49 New Delhi, February 9^th, 2010, “Bt-Brinjal Commercial Cultivation Put On Hold” available at http://news.outlookindia.com/item.aspx?674336 (Last Visited on May 27^th, 2010).

50 “Bt brinjal put on hold for now” available at http://biospectrumindia.ciol.com/content/BioSpecial/11003121.asp (Last Visited on June 16, 2010).

51 “India doesn't need Bt Brinjal: PM Bhargava” available at http://www.zeenews.com/news602829.html (Last Visited on June 16, 2010.

52 Lola Nayar, “Bacteria Curry-The volte-face on Bt brinjal deepens the controversy of GM foods”, OUTLOOK, THE WEEKLY NEWS MAGAZINE, February 22, 2010, P.62.

53 New Delhi, February 9^th, 2010, “Bt-Brinjal Commercial Cultivation Put On Hold” available at http://news.outlookindia.com/item.aspx?674336 (Last Visited on May 27^th, 2010).

54 The Researcher participated in workshop held at Hyderabad

55 Express News Service, “Expert compares Bt toxin to snake venom” available at http://expressbuzz.com/States/Orissa/expert%2bcompares%2bbt%2btoxin%2bto%2bsnake%2bvenom/151335.html (Last Visited on June 16, 2010).

56 Priscilla Jebaraj (2010, March 6^th). Bt cotton ineffective against pest in parts of Gujarat, admits Monsanto. “The Hindu” available at http://www.hindu.com/2010/03/06/stories/2010030664831400.htm (Last Visited on May 26^th, 2010).

Conflict Of Laws In Inter - Country Adoptions – An Indian Perspective

Sun, 20 May 2012 07:26:35 +0530

CONFLICT OF LAWS IN INTER - COUNTRY ADOPTIONS – AN INDIAN PERSP

INTRODUCTION

“When you honour the birth family, you honour the child. When you don't honour the birth family, the child will believe that something is inherently wrong with him/her.”

By Sherrie Eldridge^¹

Adoption - What is it?

It is the statutory process of terminating a child’s legal rights and duties towards the natural parents and substituting similar rights and duties over adoptive parents.^² It also means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all rights, privileges and responsibilities that are attached to the relationship.^³

Thus adoption involves the legal, permanent transfer of a child from the birth parent or parents to new caregivers. In inter-country adoption, this transfer occurs across an international border. The child usually moves to a new country, to parents of different race, culture and language from the birth family, and acquires a new nationality. The child's new identity replaces his or her original one. Adoption, therefore, it is appropriate to say involves losses as well as gains^⁴.

This research article will try to examine the adoption laws involved in inter-country adoptions and how they are in conflict with the laws and procedures of the original parent country from the adoptive country within the Indian jurisdiction. It will also debate upon the issue of whether and how international legal instruments and domestic measures can combine to ensure proper standards are applied to such adoptions.^⁵ This paper will also try examining the regulatory standards established for especially the inter-country private adoptions to minimize the crimes against children living in deprived conditions, like abduction and trafficking.

Adoption should only be done when necessary and for the benefit of the child and his wellbeing and by compromising on neither him nor his parents human rights. It is known to make psychological demands on the parties beyond those of natural parenthood. It will recommend that research knowledge and experience should be applied so that the arrangements made provide the best chance for stable, long-term relationships for children who have been adopted.^⁶

The article will also inspect the relevant legal provisions which are to be fulfilled with by the foreigners and persons of Indian origin who are residing abroad permanently, and who seeks to adopt children from India along with the issue of surrogacy arrangements. At present, there is no exclusive general law on adoption of children by non- Hindus and foreigners in India. Adoption is permitted only by selected statutes among Hindus, and by custom among some other communities.

Origins of Inter – Country Adoptions

The practice of inter-country adoption came about largely as a humane response to the plight of war orphans and the abandoned children of servicemen in World War II, the Korean War and the Vietnam War. It used to and still involves the transfer of more than 30,000 children each year from over 50 countries.^⁷

Only under exceptional circumstances, children move from poor countries to wealthy ones.^⁸ The main receiving countries are the United States, Canada and the developed countries of Western Europe. Factors such as the decline in fertility associated with stalling marriage, the limited success rate and high cost of infertility treatment and a lack of domestic adoption opportunities have made inter-country adoption an alternative to childless couples in the receiving countries. Presently, inter-country adoption has become easier due to readily available information on the Internet.

However, in states of origin or sending countries, extreme poverty, lack of contraception and society’s attitudes to birth of illegitimate children are three major factors leading to the abandonment of children to institutions.^⁹ The concept of “male” child also leads to the abandonment of the girl child which is an unfortunate reality in our own country. Similar thing was followed in China, regarding the "one-child policy" and the cultural preference for boys which has led to the abandonment of large numbers of girls to under-funded and inadequate institutions.^¹⁰ As a result, many organizations have sprung up to facilitate inter-country adoption. For many of these agencies, acting as an intermediary has become a business.

Inter-country adoption is a subject of international law in a number of senses. First, because inter-country adoption involves the immigration of persons from one nation to another and it raises core national sovereignty issues with international law significance.^¹¹ Second, inter-country adoption as a humanitarian matter implicates human rights issues, which have become a significant focus of international law.

CONCEPT OF INTER-COUNTRY ADOPTION IN INDIA

The question regarding the validity of inter-country adoption was first debated in the well-known case of In Re Rasiklal Chhaganlal Metha^¹² whereby the Court held that inter-country adoptions under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956^¹³ should be legally valid under the laws of both the countries. The adoptive parents must fulfill the requirement of law of adoptions in their country and must have the requisite permission to adopt from the appropriate authority thereby ensuring that the child would not suffer in immigration and obtaining nationality in the adoptive parents’ country.

The Indian Council of Social Welfare has pointed out that inter-countrv adoption involves a variety of principles and procedures over migration, citizenship, the socio-economic situation of adoptive parents, matching parents with the child, and the acceptance of the child in a different community and culture. It has recommended that in the interests of the child it is necessary to regulate inter-country adoption by legislations and by strict collaboration between qualified and authorized personal and social authorities. The end result of the process will be that adoption would not be mere legalistic arrangement but the creation of an environment in which the child can grow same nationality as well as one the habitual residence of the in health and happiness, integrated in the society.^¹⁴

In cases of inter-country adoptions, it becomes essential that legal requirements of both the countries are thoroughly satisfied since adoption laws differ from country to country. Besides, it would be necessary to ascertain whether the adoptive parents are able to provide the child with a satisfactory home. This would mean investigating into the economic status and social conditions of the family, questions of health and psychological preparedness for adoption, the child's acceptance within the community, etc. A qualified social investigation must be provided on the basis of which decision regarding eligibility can be made.

The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v Union of India^¹⁵, had framed the guidelines governing inter-country adoptions for the benefit of the Ministry of Welfare, Government of India. The main objective, as held by the Court was to prevent trafficking of children and to protect the welfare of adopted children.

Furthermore, the apex court in the supplemental judgment of Laxmi Kant Pandey v Union of India^¹⁶ had pointed out in the same case that in ordinary circumstances the court, entertaining an application on behalf of a foreigner seeking to be appointed guardian of a child with a view to eventual adoption, should not insist on the foreigner making a deposit by way of security for due performance of the obligations undertaken by him. However, in certain cases, the court may pass an exceptional order requiring him or her to make such deposit. The court has also observed that it is at that point of time that the execution of a bond would ordinarily be sufficient.

Justice Bhagwati while giving its second supplemental judgment in the Laxmi Kant Pandey’s v Union of India^¹⁷, clarified by observing that -

“We would, therefore, direct that in case of a foreigner who has been living in India for one year or more, the home-study report and other connected documents may be allowed to be prepared by the recognised placement agency which is processing the application of such foreigner for guardianship of a child with a view to its eventual adoption and that in such a case the Court should not insist on sponsoring of such foreigner by a social or child welfare agency based in the country to which such foreigner belongs nor should a home-study report in respect of such foreigner be required to be obtained from any such foreign social or child welfare agency, the home study report and other connected documents prepared by the recognized placement agency should be regarded as sufficient.”^¹⁸

The Court further held that - If it was not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often, in the socioeconomic conditions prevailing in the country, it might have to lead the life of a destitute, half clad, half-hungry and suffering from malnutrition and illness. ^¹⁹ Thus foreign adoption was held to be consistent with India’s National Policy on Children.

The Court also pointed out that such conditions would “prevent the realisation of a child’s full human potential making the child]more likely to grow up uneducated, unskilled and unproductive,” with a life “blighted by malnutrition, lack of health care and disease and illness caused by starvation, impure water and poor sanitation.”^²⁰

Recently, the Delhi Court in Maria Chaya Schupp v The Director General of Police and Ors.^²¹ had held that it is essential for all the adoption to carefully scrutinize all the adoption documents along with taking down the relevant permissions from the biological parents before going for an inter-country adoption. A similar view was held in the case of Mr. Craig Allen Coates v State through Indian Council for Child Welfare and Welfare Home for Children^²² whereby the Court held that where the adoptive parents fail to establish clearly the motive for adopting a child from another country, then the adoption process would be barred and be declared as malafide and that CARA should ensure more stricter guidelines in this regard.

However, the apex court in Anokha v State of Rajasthan^²³ had held that the above guidelines would not be applicable where the child is living with his or her biological parent(s) and who have agreed that he or she is to be given in adoption to a foreign couple known to them. The court in such cases has to deal with the application under section 7^²⁴ of the Guardian and Wards Act 1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily with the parents being aware of the implications of adoption, i.e. that the child would legally belong to the adoptive parents’ family; that the adoption is not induced by any extraneous reasons such as the receipt of money etc; that the adoptive parents have produced evidence in support of their suitability; and finally that the arrangement would be in the best interest of the child.^²⁵

However, the Supreme Court in St. Theresa’s Tender Loving Care Home and others v States of Andhra Pradesh^²⁶, had dissented with the adoption procedures by observing that –

“While making the requisite and prescribed exercise it has to be kept in mind that the child is a precious gift and merely because he or she for various reasons is abandoned by the parents that cannot be a reason for further neglect by the society.”^²⁷

Now, the Central Adoption Resource Authority (CARA) is an Autonomous Body under the Ministry of Women and Child Development, Government of India and is responsible for both in-country and inter-country adoptions in India. Its objectives are to find an affectionate and caring family for every orphan/destitute/surrendered child in the country. It firstly ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India. It also provides financial assistance to various NGOs and Government run Homes to promote quality child care to such children and place them in domestic adoption.^²⁸

The CARA Guidelines requires that every application from a foreigner wishing to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident. The agency should be recognised by CARA.^²⁹

Furthermore, Prof. M.N. Das observes in his book that –

“Firstly, it will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children, because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might, in his anxiety to secure a child for adoption, be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency or individual procuring the child. Secondly, it would be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secured family life to the child and would be able to handle trans-racial, transcultural and trans-national problems likely to arise from such adoption, because, where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner, there would be no proper and satisfactory home study report on which the court can rely. Thirdly, in such a case, where the application of a foreigner for taking a child in adoption is made directly without the intervention of social or child welfare agency, there would be no authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral and material security assured to it.”^³⁰

PREFERENCE TO PARENTS OF INDIAN ORIGIN

One of the most significant issues in inter-country adoptions is finding prospective adoptive parents, preferably of Indian origin. The Supreme Court of India, in the Karnataka State Council for Child Welfare v Society of Sisters of Charity St Gerosa Convent^³¹, had held that the rationale behind finding Indian parents or parents of Indian origin is to ensure the well-being of the children and that they grow up in Indian surroundings so that they can retain their culture and heritage. The best interest of the children is the main and prime consideration.

The Gujarat High Court in Jayantilal v Asha^³² gave a liberal judgment by upholding the validity of guardianship orders in favour of two Norwegian couples who were appointed as guardians of Hindu children. The court observed that -

“If the biological parents have died rendering the child an orphan then the society owes a duty to the child that at least a semblance of comfort and care which the biological parents could have provided will be provided to the child, if some people from howsoever distant a corner of this planet, come forth to do so. In such a case a petty contention like the change of religion or culture of the child can hardly stand in the way of the court in sanctioning inter-country adoption. Unfounded and imaginary apprehensions also are of little consequence and once the court is assured that there is no possibility of the child being abused which assurance can flow from the independent agencies which are ordained for the purpose then nothing can and need prevent the court from sanctioning an inter-country adoption.”^³³

In continuance on the same issue, the Allahabad High Court in Jagdish Chander Gupta v Dr Ku Vimla Gupta^³⁴ observed that, under section 9 of the Guardian and Wards Act 1890^³⁵, the application for guardianship of a minor shall be made to the district court having jurisdiction in the place where the minor ordinarily resides. Thus the role of the court was held to be a supervisory one in regarding the welfare of the minor as the primary consideration when it observed that -

“It should not be lost sight of and must be emphasised that in custody cases, a child has not to be treated as a chattel in which its parents have a proprietary interest. It is a human being to whom the parents owe serious obligations. One’s own self-interest sometimes clouds his perception of what is the best for those for whom he or she is responsible. It takes a very high degree of selflessness and maturity – which is for most of the people probably unattainable degree for a parent/proposed guardian to acknowledge that it might be better for the child to be brought up by someone else.”^³⁶

Legal Provisions in India -

Under the Indian Constitution, Article 24 of the Indian Constitution provides for the right against exploitation of the children below 14 years whereas Article 45 of the Directive Principles of the State Policy in the Indian Constitution envisages for free and compulsory education of children. At the International level, India has ratified the convention on the Rights of Child and the Hague Convention on inter- country adoption of children. At national level, India has prepared a National Policy for children in 1974 under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children.

International Conventions –

The Hague Convention and the ratification on inter-country adoption by the Government of India on 6^th June, 2003

Due to the increase in international adoptions, in 1993, the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption was signed to create an international framework for arranging and formalizing these adoptions and to prevent its abuses.^³⁷ The Convention relies on cooperation between participating states to safeguard children in the adoption process.^³⁸ The states of origin takes the responsibility for ensuring that children are made "adoptable," (i.e. when all the legal requirements are met) while the receiving states take the responsibility for the suitability of the applicants and in the event of only where both agree that the adoption should proceed can it be finalized.^³⁹ Adoptions are recognized whether they take place in the state of origin or the receiving state.

The Hague Convention had set out a framework for inter-country adoption and provides for its implementation through central authorities. Its main objectives is to improve inter-country adoption along with providing child welfare solutions which is dependent both on an adequate legal framework and adoption professionals who can centre the interests of the child.

Since then, modern day adoptions have undergone transitions in response to growing professionalism, specialization within welfare services, greater diversity in accepted family units, the move from institutional to family care for children in need, and major reductions in the number of babies surrendered for adoption. Together, all of these have fundamentally changed the way adoption is systematized and the relationships created or legalized by adoption. These developments have implications for inter-country adoption, because they make understandings of good practice amongst adoption agents and legislators, along with the fact that it is widely accepted with equivalent standards and practices which should apply to all adoptions.^⁴⁰

The Conventions on the Rights of the Child (CRC) –

Except the United States, almost every sovereign nation, including India, adheres to the CRC.^⁴¹ The CRC’s objective in this regard is to “recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”^⁴² However unlike the Hague Convention, the CRC specifically prefers in-country foster care over inter-country adoption.^⁴³ This view has also been supported by the United Nation’s Children Fund (UNICEF).^⁴⁴

The CRC thus seeks to ensure:

the use of the “best interests of the child”^⁴⁵;
safeguarding of the process in which adults (such as parents) relinquish children for adoption, through a requirement of government approval, use of an “informed consent” standard for relinquishments, and the provision of counselling “as may be necessary^⁴⁶”; and
Government safeguards against improper financial gain in inter-country adoption.^⁴⁷

Present LAWS OF ADOPTION IN INDIA

The principal law relating to adoption in India under the Hindu system is contained in the Hindu Adoptions and Maintenance Act, 1956 (HAMA).

Requisites for a valid adoption -

Section 6 of the HAMA specifies four conditions for a valid adoption, namely:

The person adopting has the capacity, and also the right, to take in adoption;
The person giving the child in adoption has the capacity to do so;
The person adopted is capable of being taken in adoption.

However, adoption under Sec-6(iv) requires certain compliances with the provisions of Sections 7–11. Section 7 deals with the capacity of a male Hindu to take in adoption; and Section 8 with the capacity of a female Hindu to take in adoption. Section 9 qualifies persons capable of giving children in adoption; Section 10 categorises those persons who may be adopted; and Section 11 enumerates other conditions for a valid adoption. Thereafter, Section 12 elaborates the effects of a valid adoption.

Other Conditions for a valid adoption

Section 11 of the HAMA (i), (ii), (v) and (vi) lays down important conditions for adoption -

(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(v) The same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption.

Thus in the case of Kewal Singh v Bakshish Singh^⁴⁸, it was held that when one child is given to the family of other so that the child is brought up, this giving of the child does not constitute adoption. There must be an intention to give and to take the child in adoption. Similarly, in Bakshish Singh v Kewal Singh^⁴⁹, it was held that the absence of parents at the time of adoption ceremony and not proving the giving and taking the child in adoption, adoption was held invalid.

Effects of a valid adoption

Section 12^⁵⁰ deals with the legal effects of an adoption made in accordance with the provisions of the HAMA 1956 and meets the requirements of cl (ix) of Para 310 of HC 395^⁵¹ of the current British Immigration Rules governing adoption which signifies the child ‘has lost or broken his ties with his family of origin’.^⁵²

It was held by the Supreme Court of India in Smt Sitabai v Ramchandra^⁵³ -

‘The true effect and interpretation of Sec 11 and 12 of Act No 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family.’

A similar view was held by the Supreme Court of India in Chandan Bilasini v Aftabuddin Khan^⁵⁴

“Section 12 of the Hindu Adoptions and Maintenance Act clearly provides that an adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”

At the end, section 15 of the HAMA 1956 highlights the inevitability of the validly performed adoption by asserting that it cannot be cancelled or renounced.^⁵⁵ Therefore, under Indian law, once a legitimate adoption has been obtained, in accordance with the legal procedures, the level for interference will be minimal, except in certain exceptional circumstances.

Challenging a registered adoption -

Now, Section 16 of the HAMA says that - Presumption as to registered documents relating to adoption.

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.’

One of the most important rule concerning adoption by Hindus, was held by the Supreme Court of India in Jai Singh v Shakuntala^⁵⁶and by the Punjab and Haryana High Court in Modan Singh v Sham Kaur^⁵⁷ that, though a document registering an adoption should be treated as final proof of adoption, it could still be challenged in a court of law if evidence to the contrary was put forward.

Justices Umesh C Banerjee and Brijesh Kumar^⁵⁸ while giving its judgement had made a careful interpretation of Sec-16 by observing that –

“The section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the statute is rather definite since the legislature has used “shall” instead of any other word of lesser significance. Incidentally, however, the inclusion of the words “unless and until it is disproved” appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession - thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words “unless and until it is disproved” shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above.”

Adoption - does it leads to Child trafficking?

Inter-country adoption has forced the public awareness in two conflicting ways. On the one hand, inter-country adoption is presented as a heart-warming act of good will that benefits both child and adoptive family.^⁵⁹ The child is characterized as a bereft orphan doomed to a dismal future within a poor country.^⁶⁰ All that the child needs is a comfortable home and a caring family to live with. However, contrary to the positive side of adoption are the numerous scandals and horror stories concerning inter-country adoption in India. Adoption is portrayed as child trafficking or baby selling.^⁶¹ The gang lords buy, steal, or kidnap children from poor families in developing nations like India for sale to adoptive families in rich nations or for turning them into bonded child labourers in the Middle East.^⁶²

Section 361 of the Indian Penal Code provides for law against kidnapping and abduction.^⁶³ In India, there have been resistance to children being given for inter-country adoptions. In Andhra Pradesh, for e.g. there has been development within movements seeking to keep particular children within India, which have been engaged in legal and political conflict with prospective adoptive parents seeking to bring children to the United States, demonstrates the political and social hazards implicit in inter-country adoption.^⁶⁴

The Indian Supreme Court repeatedly expressed concerns about the possibility that foreign adoption could become a form of “profiteering and trafficking in children.”^⁶⁵ While adoption involves the loss of the child’s original family, inter-country adoption often involves an additional loss of the child’s birth culture and language.^⁶⁶

Intentional child-buying under the guise of adoption is inherent in this form of adoption. Unintentional child buying is another danger, as money “given” to birth families as gifts or voluntary donations, which may appear gratuitous and kind to foreigners, could be interpreted as inducements to consent to adoption. Once again, the extreme economic imbalance between many Indian birth families and wealthy foreign families creates a severe danger of exploitation, in this instance in the form of intentional or unintentional child buying.^⁶⁷

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND THE AMENDMENT ACT, 2006.

The Juvenile Justice (Care and Protection of Children) Act, 2006 has been enacted for the benefit of all the children as well as parents irrespective of their religion, caste and gender.

Thus all such adoptable children who falls under the category of children in need of care and protection^⁶⁸ shall be processed under this specific legislation by district courts, city civil courts, family court and other appropriate courts as defined under the State Juvenile Justice Rules and framed based on the above Act.^⁶⁹ This Act focuses on child legislation and guarantees rights to an adopted child as recognized under international obligations by all Hague member countries. Thus, it will ensure that in cases of orphan, abandoned and surrendered children which will have to be processed under the Act so that isolated children have adequate safeguards in their placement.^⁷⁰

In an editorial article,^⁷¹ it was observed that in a bid to put adoptive parents of all beliefs and religions on the same platform, there have been amendments and guidelines issued under the Juvenile Justice Act. An important amendment to the Act emphasized that adoption under this legislation would allow an adopted child to become the “legitimate child of his adoptive parents, with the rights, privileges and responsibilities attached to the relationship. This is a significant move considering till now, adoption by non-Hindus has been guided by the Guardian and Wards Act, 1890, which gives them the status of ‘guardians’, a relationship that becomes void when the child entered adulthood. Conversely, it doesn’t give the ‘ward’ legal rights due to a biological child.”^⁷²

Consequently, non-Hindu parents could now claim full parenthood legally as earlier the relationship between adoptive parents and the adopted child was that of ‘guardian’ and ‘ward’, respectively under the Guardians and Wards Act, 1890.^⁷³ Prior to the enactment of the Juvenile Justice Act 2006, only Hindu couples adopting children could claim to be parents. However, Non-Hindus were just guardians to their adopted children. The child too was only a ward and did not have the legal status of an adopted child. As a result, the children were being denied rights to inherited property created regular problems for parents at the time of school admissions and related matters. Eventually, in many cases, children trafficked abroad on the pretext of adoption never really got citizenship rights and ended up as domestic help or even beggars. The new guidelines are an improvement over the existing ones because the child who goes abroad hereafter as an adopted child will enter the recipient nation as its citizen.^⁷⁴

In another article, the Juvenile Justice Act was severely criticized whereby it was held that by the activists that the provisions for adoption under the impugned Act were unambiguous and unclear in meaning.^⁷⁵ Child-rights activist Sangeeta Punalekar, voiced her opinion by saying that there was a lot of confusion on the issue of adoption under the Juvenile Justice Act, 2000. She concluded that adoption was provided under the said Act in itself to aid the rehabilitation and social integration of orphaned, abandoned or neglected children.^⁷⁶ “But even then it met with hardly any response,’’ Punalekar said.^⁷⁷

She further recommends that as per law, instead of getting the approval of higher courts like the district courts and the high courts in cases of inter-country adoption, such adoption could be done locally by child welfare committees and juvenile justice boards. However, she and other activists criticize the facts that there neither seem to be lack of any proper rules or infrastructure in place nor is there transparency on related issues, like the applicability of the law for the Muslims.^⁷⁸ Section 2(aa) of the Juvenile Justice Amendment Act, 2006 defines ‘adoption’ applicable for all citizens. However, it fails to override the provisions of other personal laws like “The Muslim personal law does not permit adoption and the government can’t try and plug loopholes in one Act by amending another.”^⁷⁹

THE LAW OF SURROGACY IN INDIA IN REGARD TO THE LEGAL PARENTAGE OF CHILDREN

As per survey reports, India is rapidly becoming a medical tourism hub. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA.^⁸⁰ India is emerging as a most sought after destination for surrogate mothers as can be seen due to the increase in childless NRI and foreign couples who are desperate to have a child of their own rushing to India to rent a womb. In Anand alone, in Gujarat, it has seen as many as 14 commercial in vitro fertilization surrogacy cases in the last two years which is a disturbing trend.^⁸¹

The concept of surrogacy has been incorporated in India, only recently. But, at present, there are no laws on legalizing of parenthood resulting from children born out of surrogacy arrangements. The only legislation which we have is the Registration of the Births and Deaths Act, 1969 which does not contain any provision regarding parentage as a result of a surrogacy arrangement. At the time of enacting this legislation, the concept of surrogacy was not prevalent in the India and hence it has not been amended or modified with regard to the surrogacy issue.

A surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman.^⁸² It also means the process of carrying and delivering a child for another person.^⁸³

The most recent issue regarding adoption of a child from a surrogate mother came up in the news when a the surrogate twin babies of a German couple of an Indian mother were declared to have virtually become "stateless citizens" with India refusing them citizenship and Germany not ready to recognise surrogacy as a means of parenthood.
Finding the surrogate babies caught in no man's territory on legal grounds for no fault of theirs, a Bench comprising Justices G S Singhvi and A K Ganguly vented its anguish, "Should we treat children born out of surrogacy as commodities”?^⁸⁴

The bench held –

“Statelessness cannot be clamped upon the children. There must be some mechanism by which they get citizenship of some country. Children should be allowed to leave the country after an assurance of their citizenship has been given.” A woman’s womb is not a piece of real estate to be rented out. Going through such a commercial pregnancy, a woman undergoes considerable physical and psychological trauma.^⁸⁵

Presently, the Parliament has come up with certain guidelines called as the Artificial Reproductive Technologies (ART)^⁸⁶ for the careful practice of ART, accreditation of infertility clinics and supervision of their performance in India except for maintaining the Registry of RT clinics in India.

These Guidelines only provide a foundation for the proposed legislation relating to this field of law and also asserts that the surrogate mother is under any circumstances cannot be considered to be the legal mother.^⁸⁷

Para 3.5.4 of the ART Guidelines says that a surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. While registering she must mention that she is a surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc. She must not use/register in the name of the person for whom she is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death (in whose names will the hospital certify this death?). The birth certificate shall be in the name of the genetic parents. The clinic, however, must also provide a certificate to the genetic parents giving the name and address of the surrogate mother. All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary compensation from the couple for agreeing to act as a surrogate; the exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother. An oocyte donor can act as a surrogate mother.

However, as per the conditions laid down in the above mentioned Guidelines, in cases where the surrogate mother also donates her egg, the authorizing parents / infertile couple will have to legally adopt the child, and it is only after this long drawn legal procedure has been complied with, then the infertile couple become the legal parents of the child born through such an arrangement. This fact will also have to be recorded in the birth certificate issued to such a child.

Furthermore, where the genetic material is supplied by third party donors, then in such cases the birth certificate issued to the child will initially have the names of the genetic parents. Here, it becomes mandatory for the infertile couple to legally adopt the surrogate child so born, before they are declared to be the legal parents of such a child.

However, Para 3.5.5 mentions that - A third-party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa. But we can already see by the number of real life examples as discussed above that the law relating to surrogacy in India is in its premature stage. Unfortunately at the moment there is no legislation in existence prescribing a code of practice governing the moral, ethical and legal aspects of such surrogate arrangements.

CONFLICT OF LAWS ARISING DUE TO INTER-COUNTRY ADOPTIONS

Legal Technicalities involved -

Article 7 of the CRC states, “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”^⁸⁸ It also recommends that like many other human rights norms, the requirement of immediate birth registration is consistently violated, as over 30% of births worldwide are not registered, including nearly two-thirds of the births in South Asia.^⁸⁹ The failure to register births in sending countries makes it more difficult to document the age and family of origin of children, which unfortunately facilitates abusive adoption practices.^⁹⁰

Second, the child’s “right to know and be cared for by his or her parents” are not done accordingly.^⁹¹ UNICEF thus implies that removal of a child from the birth family to an adoptive family would violate the child’s rights unless, after the offer or provision of relevant assistance, “a child’s family is unavailable, unable or unwilling to care for him or her.^⁹²

Furthermore, adoption involves the destruction of any legal relationship or contact between the child and his or her biological parents. The CRC raises the question of whether a system of adoption that denies children information about their biological parents, particularly when a child seeks such information; violate the provisions of the CRC?^⁹³

For e.g., if the adoptive family had been United States citizens wishing to adopt a child and bring it into the United States, it would be debatable as to whether the child qualified as an “orphan” under the present United States immigration law.^⁹⁴ If a direct transfer between birth and adoptive family had been attempted while the father was alive it would have been impermissible because United States law would not consider such a child an orphan for immigration purposes. What US law allows is that when a “sole or surviving parent is incapable of providing the proper care to the child “in writing” irrevocably release the child for emigration and. Adoption.

Under the Guardian and Wards Act 1890, presently, only non-Hindus and foreign nationals can be appointed as guardians of children. They cannot adopt children and the child is deprived of the benefits of a valid adoption.

To support this statement, in an article,^⁹⁵ it had been pointed out that the root of the problem is the unknown number of placement agencies’ who’s scrupulous desire for financial gain and their tendency to extort money from childless foreigners. In the same report, it was observed that in reality the paperwork is complex while the system is out of action because of long delays at the different levels of inspection.

The procedures involved in inter-country adoption are too complicated. Though the intention is to screen the genuine cases the procedures give rise to a lot of bureaucracy. Bureaucratic controls are too complex and hence there is a tendency towards violations. Since checks and balances are done by Government officials there is a likelihood of a lot of corruption.^⁹⁶

According to many in-vitro fertilisation experts in New Delhi, the truth is that, there has been an increase in the number of infertile couples from foreign countries opting for in-vitro fertilisation. The availability of low-cost and hi-tech treatment in India is helping many non-resident Indian and foreign couples to fulfill their dreams of natural parenthood. However, such non-resident Indian and foreign couples are reluctant to opt for adoption for two major reasons -

Religious and social factors which is a major issue.
Secondly, due to the presence of cumbersome adoption and immigration laws which makes it very difficult to take the child either to the United Kingdom or the United States, after he/she has been obtained from the homeland.^⁹⁷

It has been held that there are over 12 million orphaned children in India who need parents along with another 44 million destitute children who are denied the warmth, care and affection of a family.^⁹⁸ If only people could surpass the desire to have a baby that is genetically theirs, India would be the logical place where childless couples could seek parental happiness through adoption. Research shows that parental love has less to do with biological ties and more with shared experiences, and that adoptive parents love their children as much as biological parents.^⁹⁹

However, by virtue of Art. 14^¹⁰⁰ of the constitution of India, the Supreme Court of India, recently has accepted the petition of the Evangelical Fellowship of India (EFI) to make provision for Christians to be able to adopt children legally, so far only Hindus are allowed to do so. Accordingly, the Hindus can “legally” adopt in India but only Christians and other religious minorities can only become “guardians.” However, till date, the Supreme Court has not come up with any decision in this matter. ^¹⁰¹

The problem regarding the conflict of laws situation arises where non-resident Indians couples, who have been residing abroad for several decades, adopt children from within their own family. The preference for adoption by immediate blood relatives is a common South Asian phenomenon.^¹⁰² The innocent adoptive parents duly comply with the requirements of the HAMA 1956 for taking the child in adoption. The adoption deed is presented to the immigration authorities and this is where the dispute commences.

As per the 1973 Order, when a child has been legally adopted from a country whose adoption orders are recognised as valid under UK law, i.e. from a ‘designated’ country, then the parents may apply for the child to join them in the United Kingdom as their adopted child. If the child has not been legally adopted from a ‘designated’ country or the adoption is from a country whose adoption orders are not recognised as valid in UK law, i.e. the child is from a ‘non-designated’ country, entry clearance will have to be obtained for the child to travel to the United Kingdom for adoption through the English courts. India is specified as a ‘non-designated’ country under the 1973 Order.^¹⁰³

The adoptive parents, then, are put to harassment and refusal when the immigration authorities on the ground that the adoption deed is not valid under the 1973 Order, although there has been due compliance with the provisions of the HAMA 1956. The only avenues available to the parents are to challenge the refusal by way of appeal or to lodge a fresh application. Rambert De Mello in his book had viewed that - “But, the central plank to uphold the validity of such an adoption is on the basis of right to family life.”^¹⁰⁴

Thus, in Singh v Entry Clearance Officer, New Delhi^¹⁰⁵, the Court held that that the bias against Indian adoption custom was wrong and that it was a breach of the right to family life and discriminatory to refuse an adopted child entry clearance to the United Kingdom by giving less weight to an adoption effected by customary law in India and which was recognised as valid there, on the ground that it was not a recognised practice in English law.^¹⁰⁶ The consideration which arose in this case was whether an adoption which does not meet the requirements of relevant international instruments should invariably be a reason for according little weight to it in determining whether family life exists or not.^¹⁰⁷ It was held by the Court of Appeal, England that the adoption of the boy in the above case was valid in India but not recognised in the United Kingdom.

Under this judgment, the right of the couples to enjoy a family life by recognising an adoption made in India as under the provisions of the HAMA, 1956, has got a strong foothold even after being in direct conflict with the provisions under HC 395 of British immigration law.^¹⁰⁸

Due to the unavailability of any such laws, both the American and the European embassies at New Delhi refuse to recognise the above-mentioned adoption deeds under the provisions of HAMA 1956 except the provision of guardianship which can be obtained after filing for guardianship petitions under the Hindu Minority and Guardianship Act, 1956 in the court of the guardian judge, in whose jurisdiction the minor child is residing.

Along with these petitions, an extensive documentation regarding the background and standing of the proposed overseas adoptive parents is required. As it is a time consuming situation, it becomes very difficult for the foreign couples to spend long periods of time in India awaiting custody orders. With these custody orders, the adoption ultimately takes place in the foreign country of habitual residence of the adoptive parents.^¹⁰⁹ Furthermore, adoptions within the family fold are not encouraged, while adoption applications by foreigners seeking to adopt children from orphanages and welfare homes receive a more positive treatment.

CONCLUSION

For quite a long time, there has been an increasing demand for a universal law on adoption which would enable any person who wishes to adopt a child can do so irrespective of his religion, race or caste. As all the major embassies in India follow rigorous guidelines in dealing with adoption applications in the inter-country adoption mechanism, the rate of refusal is extremely high without any room for compassion. With the amount of formalities as demanded by the authorities, the childless non-resident Indian and foreign couples face a lot of hassles and hardships.

Even after so many disputes, the revised guidelines of the Juvenile Justice Act have failed to make a clear standing on this issue regarding inter-country adoptions. In the case of John Clements v All Concerned^¹¹⁰whereby the Andhra Pradesh High Court observed that -

“Para 2.14 of the guidelines envisages that no application by foreigner for taking a child in adoption should be entertained directly by any social child welfare agency in India working in the areas of inter-country adoption or by any institution or centre or Home to which children are committed by the Juvenile Court. However, the very next paragraph says “the original application along with original documents as prescribed by the Supreme Court of India would be forwarded by the foreign enlisted agency to a recognised placement agency in India”.^¹¹¹

Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the judgment of the Supreme Court and started directly approaching the placement agencies in India. They then take the Indian children in adoption with their involvement and active support of CARA officials, who are simply putting their seal of approval without inspecting the records of such adoption which is taking place. As a result, trafficking in female children is going on unrestricted in violation of the guidelines given by the Supreme Court.

Consequently, the present loophole of law came to light and thereafter the Government of Andhra Pradesh issued the Andhra Pradesh Orphanages and other Charitable Homes (Supervision and Control) Rules.^¹¹² It states that “relinquishment” of child by “biological parents” on family grounds of poverty, number of children, unwanted girl child will not be permitted. Such children should not be admitted in Homes or “Orphanages” and, it admitted, the license and recognition of Home or Orphanage shall be cancelled or withdrawn.’^¹¹³

In between the issue of inter-country adoption which have yet to be dealt properly by the Indian Government, the legal issues of surrogacy have now cropped up as -

There is no legislation in India pertaining to surrogacy as yet.
Secondly, no practical concrete useful benefits are forthcoming at all to prospective NRI adoptive parents and persons of foreign origin arising out of India signing The Hague Convention Adoptions.
Thirdly, the 2007, proposed revised guidelines should make an attempt to provide a clear cut direction to all major Embassies, High Commissions and Consulates in India, so that all adoptions taking place in India under the provision of The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 by non-resident Indians, persons of Indian origin and foreigners as well, should be duly recognized and their validity accepted so as to facilitate movement of the adopted children in the country of the habitual residence of the adopting parents

But most importantly all adoptions are to be processed by maintaining proper precautions and by compliance of due process of law, both in India and abroad. The core issues lies in the recognition of adoption orders handed down by the designated courts in India through the amended provisions of the Juvenile Justice Act of 2006.

The agencies in receiving countries need to be conscious of the general living conditions for children in sending countries as well as their culture, laws and practice. Similarly, agencies in sending countries need to be aware of the conditions in the countries where children are being sent. Where strong links are made between agencies and countries, adopters and children are more likely to be able to share their happy experiences with others. This can alleviate the isolation that people adopted outside their country of origin can feel.^¹¹⁴

It is a common situation in India that the judges dealing with adoption cases, especially in small towns and cities in India, are not predominantly acquainted with the interpretation of the inter-country adoption Guidelines as discussed in this article. Hence, in this regard, a uniform but stringent procedure must be developed which can be easily followed and observed in regard to human spirit. For the entire adoption process, all procedural hurdles along with legal and official procedures are required to be met for a smooth adoption process without any abuse. However, separate and sophisticated adoption and immigration procedures often leave foreign adopting parents in confusion over differing interpretations as to the prevailing laws of the home country and the adoption country.

Thus the adoption process in India is tedious and is involved by all sorts of unnecessary legal and social restrictions. It is an irony that in a country with so many homeless children, there’s a long waiting list of couples waiting to adopt them. “There is an urgent need to change the laws, make the process less cumbersome and allow India to become a popular adoption destination.”^¹¹⁵

Therefore, it is required that the entire adoption process and procedures are revamped so that they conform to a uniform pattern (like an Uniform Civil code as provided under Article 44 of the Constitution of India) which will make the process more suitable, less burdensome and easier to follow. The paramount importance is the keeping the best interest of the child along with both the letter and spirit of law to be adhered to. There are considerable changes needed in this field of inter-country adoption of India along with enactment of legislations dealing with children born out of surrogacy arrangements and their legal parenthood.

A system needs to be created whereby these multiple adoption agencies must be declared free from corruption through bribery and personal connections. Once it becomes apparent that approvals are based on such personal connections or monetary inducements, incentives to follow the rules may disappear. The presence of money can subvert the fundamental principles of inter-country adoption, which favour the maintenance of the child within the birth family, where feasible, and favour in-country adoptive placement over inter-country adoption. There must be some legislations in place to prevent couples from going for adoption even after having one or two biological children of their own, like we have the celebrity Angelina Jolie who is in the process of adopting another child even after having three biological children of her own and three adopted ones.^¹¹⁶

Since foreign money is available, Indian agencies may be transformed from social welfare organizations assisting families and orphans to foreign adoption profiteers scouting the countryside for children. Instead of offering counseling, services, or help designed to allow a child to remain within her birth family, agencies will systematically offer money to birth parents to induce relinquishment. Agencies will thus go into the business of deliberately producing “paper” orphans, who when placed in foreign adoption become an immensely profitable product. Similarly, obstacles to in-country adoption will be systematically constructed when proportionately huge amounts of money can be made for foreign placements. Agencies will prefer to place a child out-of country and receive literally thousands of dollars, a year’s salary for a middle class Indian, rather than place the child in-country and receive less than $100.^¹¹⁷ This needs to be avoided.

It has been seen that the children are a supreme and chief asset to the nation. The nation’s responsibilities are to nurture them as they are the future citizens of the country. All the Children’s programmes should be given a conspicuous part in the national plans for the development of human resources so that children grow up to become robust citizens; physically fit, mentally alert and morally healthy endowed with the skills and motivation needed by the society.^¹¹⁸ The aim is to provide equal opportunities for development to all children during the period of growth, as this will serve larger purposes of reducing inequality and increasing social justice.

Those who care about children should act now to preserve and promote international adoption. It represents the best option for existing unparented children. It serves the interests of birth parents who care about the children they cannot raise. It brings new resources into poor sending countries to help improve conditions for the children left behind. It represents the way forward to a world in which we recognize children as citizens of a global community with basic human rights entitlements, a world in which we recognize adults in that community as having responsibilities to all its members.

To conclude this research paper, I would like to bring into notice the conclusions drawn up by the national policy of India for welfare of children in India. The idea is to protect the abandoned and destitute children and help them to find a family as far as possible and to safeguard their interest as visualized in the UN Convention on child rights and Hague Convention on Inter country adoption ratified by India government.^¹¹⁹ The ‘Best Interest of the Child’ is the guiding principle behind all adoption laws in India and social awareness programmes has helped to change the attitude of society and people towards adoption in India.^¹²⁰

After going through the plethora of thoughts as discussed in this article, we can divide our conclusion into two schools of thoughts i.e. the traditional and the contemporary. Under the traditional school, we have the Uniform Civil Code as provided under Art – 44 of the Indian Constitution along with various other Constitutional and Civil provisions. On the other hand under the Contemporary school, we have the modern Public International Law. The Government of India should come up with a model to facilitate inter-country adoptions in a smoother and hassle freeway. The laws should be made uniform for all religious communities and the government agencies which are involved in adoption procedures should work hand in hand for the best interest of the child and also for the adoptive parents. Selfish interests should be removed. The international community and the laws should also try to pitch in with their efforts in helping the parents going for inter-country adoption in a less complicated way. Above all, the countries of the world should coordinate with each other for the betterment of the child who will be the future citizens of their respective countries.

1 Author of - Twenty Things Adopted Kids Wish Their Adoptive Parents Knew and Twenty Life-Transforming Choices Adoptees Need to Make.

2 Black’s Law Dictionary, 7^th Edition, Bryan A. Garner, Editor-in-chief

3 Section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, as available in http://www.adoptionindia.nic.in/JJ%20act.txt.pdf last accessed on 10^th June, 2010

4 See http://www.allbusiness.com/government/3493265-1.html last accessed on 10th June 2010

5 The Guidelines of the International Council of Social Welfare (1981); UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986); UN Convention on the Rights of the Child, Article 21 (1989); Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption (May 1993); Euradopt, Ethical Rules (1993), available at www.euradopt.org/ethical rules last accessed on 10^th June 2010; European Parliament, Resolution on improving the law and co-operation between member states on the adoption of minors (1996) A4-0392; Council of Europe, Parliamentary Assembly Recommendation 1443 (2000).

6 D. Kirk, “Shared Fate”, London: Free Press, 1964; J. Triseliotis, “In Search of Origins”, London: Routledge and Kegan, 1973; M. Ryburn, “Open adoption: Research, Theory and Practice”, Aldershot: Averbury, 1994; D. Howe, and J. Feast, “Adoption, Search and Reunion: the Long Term Experience of Adopted Adults”, Chichester, UK: The Children's Society, 2000.

7 P. Selman, "The Demographic History of Inter-country Adoption" ed., Inter-country Adoption, Whitaker: British Association for Adoption and Fostering, 2000, pp. 13-39. Details can be found from UNICEF at http://www.unicef-irc.org/ and the National Adoption Information British Association for Adoption and Fostering, 2000, pp. 13-39. Details can be found also at the National Adoption Clearinghouse at available at http://www.adoption.org/adopt/national-adoption-clearinghouse.php last accessed on 10th June,2010

8 It is apparent that the USA which receives the most children for adoption from overseas also provides children for adoption in the U.K. as in the notorious Kilshaw case and in Re JS (private international adoption) [2000] 2 F.L.R. 638.

9 See D. Howe, P. Sawbridge, and D. Hinings, “Half a Million Women”, New York: Penguin, 1992.

These were the same factors that led to the development of domestic adoption in the United Kingdom, Australia and the USA in the 20th century.

10 Bashir Mamdani and Meenal Mamdani, “The impact of China’s one-child policy” available at http://www.issuesinmedicalethics.org/143ss106.htmllast accessed on 11th June 2010.

11 Joanne Selinske et al., “Ensuring the Best Interest of the Child in Intercountry Adoption Practice: Case Studies from the United Kingdom and the United States”, 80 CHILD WELFARE 656 (2001).

12 AIR 1982 Guj. 193

13 Sec-9(4) - Persons capable of giving in adoption - Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

14 Supra note 12

15 AIR 1984 SC 469

16 Supra note 15, p. 417

17 AIR 1987 SC 232

18 p 240, para 12 of the judgment

19 Supra note 14 at 252

20 Ibid

21 2010 CriLJ 883

22 162(2009) DLT 605

23 (2004) 1 Hindu Law Reporter 351

24 Where the Court is satisfied that it is for the welfare of a minor that an order should be made –

Appointing a guardian of his person or property, or both, or
Declaring a person to be such a guardian, the Court may make an order accordingly.

25 Supra note 23

26 2006(1) Hindu Law Reporter 122

27 para 10 at page 128 of the judgment

28 See http://www.adoptionindia.nic.in/about_us.htm last accessed on 11^th June 2010

29 Supra note 37

30 Guardians and Wards Act, Eastern Law House, 14th edn, 1995, at pp 80–81:

31 AIR 1994 SC 658

32 AIR 1989 Guj. 152

33 p 156, para 12

34 (2004) 1 Hindu Law Reporter 282

35 Court having jurisdiction to entertain application.

36 p 285, para 16 of the judgement

37 Articles 4, 5 and 17 of the Hague Convention, available at http://www.hcch.net/upload/conventions/txt33en.pdf last accessed on 11th June, 2010.

38 Supra note 4.

39 Article 15 , 16, 17, 18 and 19 of the Hague Convention

40 UN Convention on the Rights of the Child, article 21(c). Only Somalia and the USA have not ratified the UNCRC but a number of countries have entered reservation in relation to art. 21. See http://www2.ohchr.org/english/law/crc.htm last accessed on 11^th June, 2010 and A. Bissett-Johnson, "Qualifications of Signatories to the United Nation Convention on the Rights of the Child" in N. Lowe, and G. Douglas, Families across Frontiers, Bowker: Martinus-Nijhoff, 1996, pp. 115133.

41 See Johan D. van der Vyver, “American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness,” 50 EMORY L.J. 775, 778 (2001) (noting that United States and Somalia are the only nations that have not ratified the CRC)

42 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448; art. 21(b), 28 I.L.M. at 1464

43 William L. Pierce, “Accreditation of Those Who Arrange Adoptions Under the Hague Convention on Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of Children, “12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996) (discussing conflict between CRC and Hague Convention).

44 UNICEF, UNICEF’S Position on inter-country adoptions available at http://www.unicef.org/media/media_41918.html last accessed 12^th June, 2010 [hereinafter UNICEF’S Position].

45 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), Art. 3, para. 1, 28 I.L.M. at 1459.

46 Ibid, Art. 21(a), 28 I.L.M. at 1464.

47 Ibid, Art. 21(d).

48 1975 (77) Punj. LR 321

49 1979 HLR 431

50 Effects of adoption - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family

51 HC395 states that for a non - European Economic Area national to qualify for entry in this capacity he or she must be “a person living and working outside the United Kingdom who comes to the U.K. to transact business (such as attending meetings and briefings, fact finding, negotiating or making contracts with U.K. businesses to buy or sell goods or services). See http://www.immigrationhk.com/uk.htm last accessed on 14th June 2010

52 The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom are that he –

(ix) Was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents. For detailed info, see http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part8/children/last accessed on 14^th June 2010

53 AIR 1970 SC 343; at p 348, para 6

54 (1996) 1 Hindu Law Reporter 79, SC; at p 81, para 6

55 Valid adoption not to be cancelled - No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

56 2002 (3) SCC 634

57 AIR 1973 P&H 122

58 at pp. 636 and 637, para. 2

59 Kim Clark & Nancy Shute, “The Adoption Maze”, U.S. NEWS & WORLD REP., Mar. 12, 2001, at 60, available at LEXIS, News Library.

60 Kathy Boccella, “Family Forged amid Tragedy Gives Girls, Parents Chance to Live, Love,” MILWAUKEE J. SENTINEL, Mar. 23, 2003, at 11L, available at LEXIS, News Library.

61 Ethan B. Kapstein, “The Baby Trade”, FOREIGN AFF., Nov.-Dec. 2003, at 115, available at LEXIS, News Library.

62 Renuka Rayasam, “Special Overseas Delivery: U.S. to Simplify Rules on Foreign Adoptions”, ATLANTA-J. CONST., Dec. 3, 2003, at 1F, available at LEXIS, News Library.

63 Kidnapping from lawful guardianship.-Whoever takes or entices any minor under 2[ sixteen] years of age if a male, or under 3[ eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.- The words" lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

64 Raymond Bonner, “A Challenge in India Snarls Foreign Adoptions”, N.Y. TIMES, June, 23, 2003, at A3, available at LEXIS, News Library.

65 Supra note 14 at 264, 270, 273.

66 David M. Smolin, Capital University Law Review, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1004&context=david_smolin last accessed on 15^th June, 2010.

67 David M. Smolin, Seton Hall Law Review, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=david_smolin last accessed on 15^th June 2010

68 Sec. 2 (d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 available at http://wcd.nic.in/childprot/jjact2000.pdf last accessed on 15^th June 2010

69 Rule 33 (5) of the Central Rules under the Juvenile Justice (Care & Protection of Children) Act, 2000

70 Section 41 of the Act, 2000

71 “Adopting New Guidelines,” published in The Hindustan Times dated 19 November 2007.

72 See http://www.adoptionindia.nic.in/article.htm last accessed on 15th June 2010

73 Sections 4(ii), (iv) and 24 of the Guardians and Wards Act, 1890.

74 See http://www.tribuneindia.com/2010/20100602/edit.htm#3 last accessed on 15th June 2010

75 Swati Deshpande, “Time to Unscramble the Adoption Tangle,” published in the Times of India dated 20 November 2007.

76 Sec 40 of the Juvenile Justice Act, 2000

77 Supra note 64

78 Supra note 64

79 Ibid.

80 228^th Law Commission of India Report available at http://lawcommissionofindia.nic.in/reports/report228.pdf last accessed on 15th June 2010

81 “Maternity for Hire”, published in The Times of India, New Delhi/Chandigarh Edition dated 24 February 2006. Also see Jan Balaz v. Anand Municipality Special Civil Application No. 3020 of 2009 available at http://blog.indiansurrogacylaw.com/2009/11/gujarat-high-court-rules-on-surrogacy-case/ last accessed on 15^th June 2010

82 Supra note 75

83 Supra note 2

84See http://timesofindia.indiatimes.com/india/German-couples-surrogate-kids-may-end-up-stateless/articleshow/5340835.cms and http://www.telegraphindia.com/1100414/jsp/opinion/story_12336997.jsp last accessed on 16th June 2010.

85 Supra note 76

86 Guidelines for ART Clinics in India available at www.scribd.com/doc/.../Guidelines-for-ART-Clinics-in-India last accessed on 16th June 2010

87 Supra note 81

88 Ibid. Art. 7, para. 1, 28 I.L.M. at 1460.

89 UNICEF reported that in 2000, 70% of births in sub-Saharan Africa, 63% in South Asia, 22% in East Asia and the Pacific, and nearly one-third in the Middle East and North Africa went unregistered. UNICEF, BIRTH REGISTRATION, at http:// http://www.unicef.org/protection/index_birthregistration.html last accessed on 16^th June 2010

90 Ibid

91 Ibid

92 Supra note 87

93 Supra note 45, note 14, art. 8, 28 I.L.M. at 1460

94 8 U.S.C. § 1101(b)(1)(F)(i) (2000)

95 Sharma Vinod, “Indian child losing out in adoption mart”, published in The Hindustan Times, 9 September 1997. See http://www.docstoc.com/docs/18657623/INTER-COUNTRY-ADOPTION-IN-INDIA last accessed on 16th June 2010

96 Asha Bajpai, Child Rights in India: Law, Policy and Practice (2003)

97 Sharma Jyoti, ‘How egg-citing! NRIs eye desi donors’ The Times of India, dated 29 August 2003

98 See http://www.indianngos.com/issue/child/adoption/statistics/index.htm last accessed on 16th June 2010

99 Supra note 70

100 Article 14 of the Indian Constitution guarantees every citizen the right to equality before the law.

101See http://in.christiantoday.com/articles/the-supreme-court-accepts-christians-plea-for-adoption-rights/2101.htm last accessed on 15th June 2010.

102 See http://www.karmayog.org/adoption/adoption_16981.htm last accessed on 17th June 2010

103 Adoption (Designation of Overseas Adoptions) Order 1973, SI 1973/19.

104 Rambert De Mello “Acting for Non-resident Indian Clients,” Jordan Publishing Limited, First Edition, 2004 at pp 221-222.

105 [2004] EWCA Civ. 1075

106 See http://www.ipsofactoj.com/international/2005A/Part02/int2005A(02)-004.htm last accessed on 16^th June 2010

107 para 33 of the Judgment.

108 Supra note 52

109 See http://216.194.248.35/law/legal/testimony/testimony_801.html last accessed on 17th June 2010

110 AP (2003) 2 Hindu Law Reporter 331

111 p 331, paras 59–61

112 GO Ms No 16, dated 18.04.2001

113 In para 11 (VII) of the said Government Orders

114 J.S. Sjoren, "A Ghost in My Own Country," Adoption and Fostering 20, 2 (1996) pp. 32-35; S. Jardine, "In Whose Interests?" in P. Selman, ed., p. 488.

115 Supra note 70

116 See http://www.telegraph.co.uk/news/newstopics/celebritynews/3211078/Angelina-Jolie-and-Brad-Pitt-to-adopt-child-number-seven.html last accessed on 20th June, 2010

117 Francis Abott, My Gifts from India 49 (2003) (noting that Indian agencies receive $12 to $25 per domestic adoption, as compared to $2500 to $5000 per inter-country adoption, creating incentive for illegal conduct).

118 Ibid

119 National Policy for the Welfare of Children, 1974 available at http://www.indg.in/primary-education/policiesandschemes/national_policy_for_children_1974.pdf last accessed on 20th June, 2010

120 A.S. Shenoy, Child Adoption Policies in India- A Review available at www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.d last accessed on 20^th June, 2010

Reservation In Private Sector Employment: Its Constitutionality

Sun, 20 May 2012 07:26:35 +0530

The ugliness of competition for reservations benefits that iden

Equality is the order of nature. Life in nature does not discriminate the two of a same kind. Discrimination is the human concept. It is he who propelled by the emotions of nearness favours one and discriminates other. But it is also true that the nature also does not follow equality in mathematical sense. There fore equality being a natural and human right requires a special favour from the highest institution of human being i.e. the State. Yet the State cannot treat the two unequals equally as it would be against the basis of equality i.e. treatment of unequals equally results in inequality.

However when two human beings born as human being and hence are equal but one stands at a disadvantageous position whether due to the historical reasons or because of the perpetuating discrimination, the principle of equality becomes worthless. He is required to be favoured and pushed forward in order to bring him equal to one who is at advantageous position. This would be equality in the real sense of the term. However it is also a striking fact that the Indian society been unequal and where few were exploited and depressed from the historical times. Different from one that one has suffered due to his colour or race in Western societies the kind of inequality in our society has totally a different complexion as it has stemmed from caste. Historically the dalits have been unable to access education and professions, because of the sickening and inhuman system of purity and pollution, which remains embedded in religious communities across India.

Hence Justice PB Sawant says,

“The right to equality without the capacity and the means to avail of the benefits equally is a cruel joke practiced on the deprived sections of the society. It widens the social and economic inequalities progressively with the haves making use of the guaranteed right to amass the fruits of progress, and the have-nots remaining where they are. The exceptions (to the right to equality law) enable the State to make the deprived capable of availing of the benefits which otherwise they would not be able to do. It is to give effect to the principle of equality that the exceptions become mandatory in any unequal society such as ours which intends to become egalitarian.” To treat two unequals equally causes as much injustice as to treat two equals unequally. The jurisprudence of equality therefore requires that those below are leveled up to those above.^¹

Though the policy of affirmative action or positive discrimination by the State in the matters of public employment has been in vogue for last 73 years, yet the issue has came to the forefront due to the fact that economic capacity of the State has substantially shrinked by the policy of economic liberalization and globalization in which the Public sector is losing significance and private sector is taking the rein of economic growth in its own hands. This has also resulted it reduction of employment opportunities to those of depressed class along with others who were under the program of positive discrimination carried on by the State were entitled to the reserved post under the provisions of Article 16(4). Since the public and government sector is itself loosing momentum the beneficiaries of reservation are also loosing the number of opportunities available to them. According to the Report of the Working Group on the Empowering SCs appointed by the National Commission on Scheduled Castes, the SCs lost about 1,13,430 job opportunities in the central government during the period 1992-97, constituting a decline of 10.07 per cent.^² This has also resulted in competition between the class beneficiary of positive discrimination by the State. The ugliness of competition for reservations benefits that identity politics sponsors was seen in the recent violent conflicts over reservations for gujjars. The fact is that each and every caste has started making demands for reservation and inclusion in one or another list, be in SC list or ST list or in OBC list. Rajasthan makes one skeptical of the reservations policy. There are few issues in a crucial debate that touches upon issues of equality, justice and national integration.^³

This has further enhanced the problem in respect of the depressed class as a whole. A revelation of the reduction of employment opportunities in the pubic sector made some political parties and their leaders advance the demand for extending reservations to the expanding private sector. There is an implicit assumption in this demand that employment opportunities are increasing in the private sector merely because it is expanding.^⁴ This problem has pushed the government to take remedial actions.

There is also a political background to this issue, which on one hand is consistent with their general political philosophy while on the other hand also guided by purely opportunistic political game plan. Some in order to regain their lost committed constituency while other not to lag behind in this run, are demanding reservation in private sector. As soon as taking power in centre the Government constituted a Group of Minister to look in the issue of affirmative action in private sector, which recommended for affirmative action in private sector thus the party which was once champions of liberalization strongly lean in favour of reservation in private sector.^⁵

Arguments in favour of reservation in private sector:

The Minister for Employment and Social Justice Meira Kumar has argued that since the government provides free land, tax exemption, credit from government-owned banks and many other infrastructure facilities to private industries, it is morally entitled to ask in return reservations for socially backward people.^⁶
Though the private sector strongly says that we do not consider colour of skin or last name or caste^⁷ for the purpose of employment yet it is a striking fact that the depressed class is being discriminated in private sector on the ground of sex, caste, place or other considerations.^⁸

Thus, the policy of liberalization and privatisation reduced the number of employment opportunities in the public sector, which, in turn, reduced the job opportunities for SC/STs and OBCs in government administration and government-owned enterprises. However the private sector strictly refused to accept this proposal as it would affect their competitive capabilities and profit margin and would in turn affect their economic viability.^⁹

In the recent times the scholars and academicians have on the basis of examination of the policy of reservation carried on in India during the seven and half decades, rejected out rightly or suggested alternative method to the present policy. Few scholar suggested have proposed a point-based affirmative action programme that takes into account both group and individual disadvantages.^¹⁰ While others have recommended a slew of measures, including an anti-discrimination law and reservations, to achieve social justice of Indian society.^¹¹ Till recently, these dissenting voices have largely been academic or activist. But the last few years have witnessed a creeping change in the government discourse on equality, a sort of officialisation of these voices. Recognising this change is critical to everyone who has been dissatisfied with the unidimensional equality model embodied in the reservations policy.

On this backdrop we come to examine the issue of constitutionality of reservation in private sector employment if it has been employed in practice. For this purpose the discussion in the following parts have been examined firstly the concept of equality, then equality as accepted in Indian context followed by the human right aspect of equality.

1. The Concept of Equality:

The idea of equality is one of the foundational values of our Republic. This was one of the core values shared by the various visions of India articulated by the different strands of our freedom movement. These strands drew upon different egalitarian traditions within India and the west, placed different emphases on the various spheres of equality, advocated different strategies for achieving equality and indeed differed in how much weight they accorded to the idea of equality in their vision of future India. Yet it was quite evident to the builders of modern India that the freedom movement drew a good deal of its energy not just from an urge to achieve political freedom but also from the aspiration for equality. It was natural therefore that the idea of equality was enshrined as first among the Fundamental Rights in the Constitution of India. The Preamble to the Constitution includes “Equality of Status and of Opportunity to all Citizens” as one of the guiding values for the new Republic.^¹²

The idea of equality is not merely a principle propounded by legal experts and respected by courts of law. It has a much wider resonance in the country’s public life.

The egalitarian strands in the freedom movement acquired a much wider presence in post-independence India and have come to shape the language of State policy, political discourse and public opinion. Every one of the eleven Five Year Plan documents talks of elimination of poverty, reduction of inequalities and securing just conditions of life for the most deprived groups in society. The National Policy on Education identified that its main task was to ‘strengthen the base of the pyramid’. Expressions such as these are routinely used in the Presidential Address to the Parliament and to the Nation.^¹³

Thus one of the aspect of equality is the equality of opportunity which has been examined in the succeeding part.

2. The Concept of Equality of opportunity:

The equality of opportunity derives its content from the idea of equality, which is that there should not be discrimination. This idea can be further articulated by saying that any person in the matters of employment and work opportunity should not be discriminated on the irrelevant grounds. Such grounds which in their essence do not have any bearing upon the suitability and efficiency of any person can be sex, race, caste, place of birth, sexual orientation, eating habits, nationality etc. It is almost universally recongnised principle that law should impliedly or specifically should prohibit the employers from discrimination in the matters of employment on such irrelevant grounds.

However as we have seen in the above discussion that the person suffering from some kind of disability due to which he is unable to avail the equal opportunity available to him, such hollow and formal equality becomes worthless. There fore in such a situation the concept of substantive equality becomes indispensable.

a) Formal Approach of Equality:

The formal approach to equality of opportunity places minimum demands on the state. In this approach, the requirements of equality of opportunity are satisfied

if all the public offices and resources are in principle open to everyone,
if there is no discrimination on grounds only of immutable group identity and
if the outcome reflects a criterion relevant to the task.^¹⁴

A formal approach to equality of opportunity would insist that there be no requirement in addition to these three basic requirements of a ‘fair competition’. While this approach rules out explicit discrimination, this is very much compatible with indirect or structural discrimination. To repeat a famous example, this is compatible with a former Warrior class that continues to have a monopoly of Warrior positions in a ‘fair’ competition because only they have the resources to cultivate the qualities required in that competition. This understanding of equality of opportunity has no room to look for background conditions that go into the making of ‘opportunities’. In a strict sense this approach is about ‘openness of opportunity’ and procedural fairness rather than about equality of opportunity.

b) Substantive Approach of Equality:

The substantive approach to equality of opportunity differs from a formal approach in three fundamental but related ways.

First, a substantive approach goes beyond the absence of direct discrimination and includes within the scope of equality of opportunity a mandate to eliminate indirect discrimination.

Secondly a substantive approach requires the State policy to take into account and neutralize not just the current circumstances but also historical burden of circumstances.^¹⁵

These are usually and primarily because of the historically built in tendencies or the force generated by the socio-economic structures. It thus happens that outcomes or consequences of the existing system disadvantage certain groups or communities in an enduring way. Thirdly, following from the first two, this approach implies an obligation on the state and thus creates a positive duty on public authorities. The state cannot limit itself to a negative role of non-discrimination; in this understanding, the state carries a responsibility to strive to create parity of circumstances. It should be noted here that a substantive approach in itself does not commit the state to any particular way of achieving this parity. This leaves open the question of which instrumentalities the state should use to realize this objective.

c) Judicial View on Equality of Opportunity:

This foundational value was secured through two kinds of provisions in the Constitution. Articles 14, 15, 16 and 17 secure formal equality before the law, stipulate equal opportunity in employment and prohibit unjust discrimination based on accidents of birth. Having secured this, the Constitution goes on to make some provisions for substantive equality. Some of these provisions for substantive equality were included in Articles 15(3), (4) and (5), 16(3), (4), (4A), (4B) and (5) and 17 in Fundamental Rights in Part III of the Constitution and Articles 330 to 342 in Part XVI of the Constitution. As such, a model of equality of opportunity that goes beyond the formal to recognize substantive equality is very much a part of the “basic structure of the Constitution.”^¹⁶ This privileged constitutional status for substantive equality places any mechanism for ensuring equality of opportunity on a sounder footing than is the case elsewhere in the world.

A substantive reading of the idea of equality in the Constitution is considerably strengthened by Directive Principles of State Policy in Part IV. The Directive Principles expand the scope of the idea of equality beyond political equality to include equality in the socio-economic sphere.^¹⁷ The Directive Principles also enjoin a positive duty upon the State to secure these rights of the citizens. These provisions require the State to eliminate inequalities of opportunity among individuals as well as groups, to secure a just social order, and provide education, work and social welfare benefits to all its citizens. The creation of an institutional mechanism to secure and protect equality of opportunity flows from this constitutional mandate.

The Constitution as interpreted by the courts supports the substantive approach to equality of opportunity. The provisions of the Constitution make it quite clear that the Constitution goes beyond merely prohibiting direct discrimination. The Constitution vide DPSP clearly enjoin upon the State a positive duty to strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The Supreme Court of India has variedly spelt out the rich dimensions of Art 14 of the Constitution. The court has perceived the mandate of Art 14, as the obligation of the State to progressively ensure equality of status and parity of conditions in order that every citizen is able to realize her welfare and well-being without any externally created impediment. Some of the landmark judgments of the Supreme Court provide an interpretation of the idea of equal opportunity.^¹⁸

For instance in N.M. Thomas case^¹⁹ the proviso to a rule on departmental tests for promotion of lower division clerks to upper division clerks had been challenged as it granted a temporary exemption of two years to Scheduled Castes and Scheduled Tribes whereby they got additional time to take the tests after they had been promoted. The Supreme Court upheld the validity of the impugned rule. Chief Justice Ray said,

“The guarantee of equality before the law or of the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims.” He further said “The rule of classification is not a natural and logical corollary of the rule of equality but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions.”

Justice K. K. Mathew gave a detailed opinion on the equality of opportunity while upholding the validity of the rule. According to him,

The ultimate reason for the demand of equality for the members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for a society which provides those conditions of life which men need for development of their varying capacities……The notion of equality of opportunity’s a notion that a limited good shall in fact be allocated on the grounds which do not a priori exclude any section of those that desire it…. ......The question therefore is: On what basis can any citizen or class of citizens be excluded from his or their fair share of representation? As I said, the notion of equality of opportunity has meaning only when a limited good or, in the present context, a limited number of posts, should be allocated on grounds which do not a priori exclude any section of citizens of those that desire it.^²⁰

What then, is a priori exclusion? It means exclusion on grounds other than those appropriate or rational for the good (posts) in question. The notion requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them.^²¹

Equality of opportunity is not simply a matter of legal equality. Its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It obtains in so far as, and only in so far as, each member of a community, whatever his birth or occupation or social position, possesses in fact, and not merely in form, equal chances of using to the full his natural endowments of physique, of character, and of intelligence.

3. Human Right Aspect of Equality of Opportunity:

India is obliged to implement the principle of equality in all fields of human walk including employment and work under international covenants, which she is signatory. The main provisions relating to equality of opportunity in International jurisdiction are as follows:

Universal Declaration of Human Rights (UDHR)

Articles 1, 2 and 7 of the UDHR guarantee all persons with the rights and freedoms provided in the Declaration without any distinction on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. All persons are entitled to equal protection before the law and to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

International Covenant on Civil and Political Rights (ICCPR)

Article 26 guarantees the right to equality and to the equal protection of the law. It prohibits discrimination based on the grounds of race, colour, religion, national or social origin, birth or other status, property and political or other opinion.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Article 7 guarantees the right to the enjoyment of just and favourable conditions of work as well as fair remuneration, and in particular recognizes that equal opportunity be provided so that everyone can be promoted to an appropriate higher level based solely on their seniority and competence.

Article 13 recognises the right to education of all persons and states that secondary and higher education, including technical and vocational education shall be available as well as accessible by all persons by appropriate means. Secondary and higher education shall progressively be made free.

Convention on the Elimination of Discrimination Against Women (CEDAW)

Article 3 mandates state parties to take appropriate measures in the political, social, economic and cultural spheres to ensure the full development and advancement of women.

Article 4 states that temporary special measures aimed at accelerating de facto equality between men and women shall not be considered as discrimination as defined in the Convention, and shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

Convention on the Rights of Persons with Disabilities

Article 3 lists non-discrimination, equality of opportunity and, the respect for difference and acceptance of persons with disabilities as part of human diversity, as the general principles of the Convention. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the present Convention.

The above mentioned International Instruments clearly shows that the human right of equality of opportunity that binds in India under the international obligation to secure equality of opportunity to all and to protect from discrimination on the ground either of sex, caste, place of birth, religion etc.

Reservation as Strategy to Achieve Substantive Equality

The strategy of reservation of equalising opportunities for identified groups long discriminated has been in vogue for the last several decades. However, for a variety of reasons, the strategy of removal of disabilities could not automatically bring about equalisation of life chances to many groups in our heterogeneous society. Deprivation and exclusion are complex processes which warrant multi-pronged approaches by way of creation of parity of conditions through legislative and executive action. This is the affirmative action agenda which is in addition to the reservation strategy that is now available only for certain deprived groups. In other words, we need to look now for policies and programmes to supplement the existing system of reservations to enable the deprived groups to find equal opportunities to access rights and entitlements.

Approaches Justifying Affirmative Action:

There are two kinds of major conventional approaches for justifying affirmative action:

Backward Looking Approach:

Firstly, the backward-looking (i e, reparations based), that focuses on past injustice and demands reparation. In India, affirmative action for the marginalized sections is essentially rooted in approach based on past injustice and reparation.

“Backward-looking” argument, a very different frame-work from the second one, focuses on injustice of the past, and stresses that because these past events occurred, we have certain duties and responsibilities now to ameliorate the injustices of past and pay back the dues.

The argument involves an essential reference to the unjust actions of the past. This principle is to bring in certain duties to respond to certain past events in specified ways.^²²

There are nonetheless serious difficulties with this approach. There is scepticism and apprehension in contemporary debates about the value of focusing on historical injustice as the most appropriate means of addressing the claims of the present victims. In strict sense of the term, it is too hard to measure the degree of past advantages and disadvantages or injustice in a simple and straightforward way.^²³

Backward-looking argument concentrates too narrowly on the allocation of blame, and not adequately on contemporary disadvantages. Compensation and reparation may be due for certain specific wrongs but cannot by themselves carry the burden of rectifying the kind of systematic injustice victims suffer from. At best, it asks for symbolic act of public reconciliation or atonement rather than substantial justice.^²⁴

Forward Looking Approach:

Secondly, the Forward-looking (i e, utility based), which appeals exclusively to the good result expected from such programme. The thrust of the forward-looking argument is that what has happened in the past is not itself relevant to what should we do and to what is reasonable from humanitarian perspective. The aim of affirmative discrimination is not to compensate anyone for harm caused by past wrongdoing, but rather simply to promote certain highly desirable forms of social change to break endlessly continuing cycle of poverty and subservience. It tries to avoid extremely complicated causal connections between the past wrongs and current positions of certain individuals. At best, it presents clues as to what acts and policies are likely to generate the best future.^²⁵

Consequentialism always tries to resolve what ought to be done at present by fixing attention exclusively on future results. Consequentialists take help of the past or consults history in a very limited sense, i e, only for predicting the future results, but the past never plays a fundamental role in final evaluation of the project.^²⁶

PROBLEMS RELATING TO RESERVATION IN PRIVATE SECTOR:

But before going into further discussion on other issues in this paper it is necessary to examine few of the problems which are existing in factual state in case private sector resevations. Those are the followings:

Legal status: The Constitution makes provision under Article 16(4) for reservation in employment for socially and educationally backward people. Without taking into consideration the language of Article 16 (4), one State Government prepared legislations in the private sector. Though it was not enacted, that draft has become a reference document for even the central UPA government to threaten the private sector with legislation. The argument on the part of government in favour of reservation is that since the government provides free land, tax exemption, credit from government-owned banks and many other infrastructure facilities to private industries, it is morally entitled to ask in return reservations for socially backward people. In some states the state governments have forced private educational institutions which receive government grants to provide reservations in admissions as well as in jobs. However such argument is not sustainable in respect of those private industries which do not receive any such sops from the government and fail on constitutional touchstone. This constitutional issue will have to be decided by the Supreme Court.^²⁷
Implementation: In respect of implementation of reservation policy in private sector involves a number of issues. They are as following:
1. Identification of Beneficiaries: The first issue to be decided is whether job reservations in private sector will be confined to the SC/STs only or OBCs too. This is because there is no uniformity of the castes included in OBCs lists across the states and in some States Brahmin also falls in OBCs list. One way out of this quagmire is to follow the Mandal Commission’s recommendations, which has specifically listed OBCs in each state. Even after solving this issue, there still remains the issue of excluding the creamy layer among OBCs. Though the Supreme Court asked the centre and the state governments to prescribe appropriate income limits for eliminating the creamy layer among the OBCs,^²⁸ it has been done so haphazardly in many states. Under these circumstances, it is not desirable to force the private industries to make reservations for OBCs.^²⁹
2. Demerits of Prevalent Policy: Private industries are already employing a large number of OBC candidates but based only on their merit and performance. Therefore, the case for reserving jobs for OBCs in the private sector is not as strong as it is in the case of SC/STs. If by force of law it is imposed, consequently, all the inadequacies (arbitrary inclusion of castes) and abuses (false caste and income certificates) of the existing reservation policy will impose considerable costs on the private sector. On the other hand even the SC/ST lists are not free from dispute because one caste is included in one list while in other in other State. This has happened because of the defective lists of SCs and STs which were prepared by the colonial provincial governments and revised in haste by the later state governments. As a result, the deserving SC/STs have not enjoyed the benefits of guaranteed reservations to the expected extent. What has happened is that the more dominant and articulate among them have come to monopolise the benefits. In way back in 1960s revision of the list of ST/SCs to exclude caste which were not untouchables was demanded, upon which a Lakur committee constituted. The committee recommended descheduling of 18 scheduled castes and 13 scheduled tribes constituting 2.23 crore people. Because of fear to loose large chunk of electorate support the recommendations were thrown into dustbin and it ended a sincere attempt of weed out SC/ST lists.^³⁰

Supreme Court, which ruled that such proportionate reservation should be done by parliament.^³¹ The matter stands there for the present. With such defective lists of SC/STs and OBCs, it would be very difficult for the government force reservations on the private sector.^³²

Magnitude of Reservation: There is no mention of either the magnitude of reservation or duration of such a policy under Article 16(4). Proportional representation in the principle only for Articles 330 and 332 and not Art. 16(4). The state governments which implemented reservation in government jobs followed the guideline in Indra Sahwney case under Article 16(4). But in the case of OBCs, some states like Tamil Nadu went beyond what can be considered reasonable and reserved as much as 69%. But, the Supreme Court made it clear that the magnitude cannot exceed 50%. The court observed:

we must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too, for a limited period. These Articles speak of reservation of seats in Lok Sabha and the state legislatures in favour of STs and SCs proportionate to their population. But they are only temporary and special provisions. It is, therefore, not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under clause (4) shall not exceed 50 per cent of the appointments or posts, barring certain extraordinary situations.^³³

The Mandal Commission recommended for OBCs reservation upto half of the 52 % total population. Even after adding the reservation for SC/ST the total reservation does not exceed the above limit. But, as per the Lakur committee recommendations, if SC/ST reservation quota is reduced by one-third, it will stand at 12 per cent. Similarly if we exclude the undeserving OBC on the basis of the creamy layer criterion, their share may come down to about 12 per cent. Together the whole reservation will be about 24 or 25 per cent. But there is no compelling justification for providing reservations for OBCs in the private sector. So we are left with 12 per cent reservation for the SC/STs, which is reasonable and may not impose unbearable costs on the private sector.^³⁴

This is also consistent with the Supreme Court view that Article 16 (4) does not permit proportionate reservation. However such reduction or exclusion would certainly brawl those belonging to the class.

Cost effectiveness: The next question is the costs which the proposed policy may impose on the private sector. Most of the industry spokesmen have argued that reservation will ruin their competitive edge because of relaxation of merit as the sole criterion for selecting the workforce.

Lower Productivity Level: The dilution of merit in the name of reservation will impose a cost (in terms of lower labour productivity) on the industries, which may not be able to compete in the global markets. This is a genuine fear because our past experience in PSUs and even in government departments has shown that those who get secured jobs become indifferent to their duties and responsibilities. This is much more so among persons who enter government service under the reserved category. Consequently, governments have become inefficient and ineffective.^³⁵

Though, in theory, public enterprises and the governments in power are accountable and responsible to the legislature, in actual practice, nobody has enforced accountability and responsibility.

But private enterprises are accountable to the board of directors and shareholders. Private enterprises cannot afford to become inefficient and lose on productivity. If government enterprises incur losses, the government can pour in public money to shore them up. But if a private enterprise incurs losses because of low productivity, it will have to eventually fold up.^³⁶

Merits of Aspirants: There is another angle to the cost of reservations in the private sector. Merit for civil services and jobs in public enterprises is mainly determined by the marks secured in university examination and/or prescribed tests besides, articulation and ability to make decisions may be expected as additional qualifications for higher level civil service jobs. In the private sector, necessary criterion are special skills for the job, a capacity to work hard, an ability to make quick decisions, a pleasant personality, an attitude to get along well with others in the organisation and an ability to work in teams are required. A reservation policy in the private sector may impose regulation on the selection process and the standard yardsticks for selection which may take away the freedom which the private enterprises enjoy. The reservation policy may also act as a regulation of the recruitment policy and practice of private enterprises.^³⁷
Application in respect of Promotions: Another issue relates to the security of the jobs provided under the reservation policy and the applicability of reservations in promotions. The private sector in India has gradually moved away from the practice of appointing personnel until their retirement age to making contract appointments to get over the costs imposed by stringent labour laws. This contract appointment system should not be disturbed by reservation policy as otherwise it will amount to making the existing labour laws more stringent. Further, the Constitution has been amended to add Article 16 (4A), which provides for reservations in promotions for the SC/STs. If that policy is imposed on the private sector Indian industry will fail to attract skilled and talented manpower which will adversely affect its competitive edge.^³⁸

Beneficiaries of reservations: In the whole debate on reservations in the private sector there is an implicit assumption that job opportunities are growing. This is a doubtful assumption because most of the countries whose economies are driven by the private sector are experiencing ‘job- less growth’ resulting from the spread of sophisticated technology. In India it is not only the use of sophisticated technology in the production process, but also the stringent labour laws that are creating resistance to employing more labour. So, job opportunities may not increase in the private sector as rapidly as some would expect.^³⁹
Availability of Talent Pool: Then arises the question of the availability of talent pool in the target group. For the last 50 years it has not been possible for the SC/STs to enter IITs & IIMs in significant numbers because of the very high standard of tests prescribed. The private sector makes large recruitments from IITs and IIMs. If qualified SC/ST candidates are not available in talent pool, they will not get benefit of reservation, because the government cannot force the private sector to lower the standards as it will adversely affect its productivity. The range of marks required for selection is 80- 95 % in engineering and/or management courses, not many SC/ST candidate may qualify that range of marks. Therefore reservations in the private sector may not benefit a significant number of SC/ST candidates because they are not equipped to tap employment opportunities in the private sector. Consequently, they will have to be satisfied with unskilled and semi-skilled jobs.^⁴⁰

LEGAL POLICY OF RESERVATION IN PRIVATE SECTOR:

After the above mentioned discussion upon theoretical bedrock for the affirmative action in favour of the depressed class in terms of equality of opportunity now on we shall discuss the legal issues relating to the private sector reservation.

Developments till Date

The reservation policy which was for the first time adopted in the 1936 whereby reservation for SC/STs were provided in education and government sector employment was further extended and carried forward after Independence. The reservation policy were articulated in various Articles of the Constitution. One aspect of reservation namely employment was raised to the stature of Fundamental Rights under Part III of the Constitution as the outset. After Champkam Case the Parliament was compelled to insert clause (4) in Article 15, which further empowered the State to impose reservation in favour of socially and educationally backward class of citizens in education.

These developments were when came under judicial scrutiny the judiciary invariably upheld the reservation policy in relation to government sector whether in employment or in admission. Though certain restrictions such as 50% maximum limit of reservation or exclusion of creamy layer from the benefit of the reservation has been imposed yet the policy has been by and large adhered to.

However in the present times since the employment opportunities are reducing in the government and public sector enterprises because of varying reasons such as orientation of government largely towards regulatory than to carry on business and services. Similarly the public sector enterprises were since making a big dent in public exchequer, the government was compelled to disinvest them. These developments have resulted in substantial reduction of employment opportunities for the depressed class. Besides since the public sector enterprises are disinvested they have been turn towards the private sector and therefore private sector is also expanding. Also with the rapid growth in the economy and heavy FDI in private sector has also resulted in expansion of employment opportunity in private sector.

Upon this backdrop the drepressed class comprising of SCs, STs and OBCs started demanding reservation in private sector. As mentioned earlier^⁴¹ there are two basis for this demand:

Private sector being the part of the country is also under a moral obligation to follow the Government policies.
Private sector is still continuing to make discrimination in employment on the ground of sex, caste, race, place of birth etc.

However till date there is no judicial pronouncement on reservation in private sector employment, nor there is any legislation in this field except one draft Bill of Maharastra. In this situation it would be suitable to examine the judicial outlook in the matters of reservation in private sector educational institution so as to draw an analogy as to what would be judicial view if the policy of reservation is imposed in private sector enterprises.

Reservation in Private Educational Institutions

In the field of education the policy of reservation in government education institutions and government aided institutions were in prevalence prior to Independence which even continued after insertion of cl (4) in Article 15. But when the government sought to impose reservation in private educational institution and private unaided educational institution the matter went to Supreme Court.

The Supreme Court in following decision examined the issue in great detail.

TMA Pai Foundation
Islamic Academy
P.A. Inamdar

In TMA Pai Foundation, an 11-judge bench of the Supreme Court held that a private unaided educational institution has a fundamental right under Article 19(1)(g) with respect to the establishment and administration of educational institutions.

Disagreements relating to the ratio of the case led to the constitution of a five-judge bench in Islamic Academy of Education entrusted with the task of clarifying the judgment in TMA Pai Foundation. Subsequently, a seven-judge bench was constituted in P.A Inamdar to assess the clarification in Islamic Academy of Education and confirm the Ratio in TMA Pai Foundation. P.A. Inamdar made it abundantly clear that the law as per TMA Pai Foundation was that “neither can the policy of reservation be enforced by the State nor can any quota or percentage of admissions be carved out to be appropriated by the state in a minority or non-minority unaided educational institution”.^⁴²

Thus after these decisions the SC seized the State’s right to impose its reservation policy on the private institutions. This critical situation created frustration among the reserved category candidates and legislatures. Because of this very situation the parliament had to enact law about reservation in private educational institutions.

In order to lessen the frustration among the reserved category candidates the Parliament introduced an amendment, the Constitution (93^rd Amendment) Act, 2005 in Art. 15 and inserted an additional clause (5) in the same article which runs as follows:

“Noting in this Article or in sub clause (g) of clause (1)of Art. 19 shall prevent from making any special provision by law, for the advancement of any socially and educationally backward classes of citizens or for the SCs or STs in so far as such special provisions related to their admission to educational institutions including aided or unaided by the state other than the minority educational institutions referred to in clause (1) of Art. 30.”^⁴³

Validity of 15(5): Private Unaided institutions

Hence, under Article 15(5) the State was enabled to regulate admission in private unaided institutions, something they were unable to do after the decision in TMA Pai Foundation and the subsequent cases clarifying it. It is important to note that although the Court in A K Thakur was bound by the decision in TMA Pai Foundation, the change in the text of Article 15 by the introduction of Article 15 (5) may have altered the constitutional basis of the decision in TMA Pai.

In order to bring into reality the provision of Article 15(5) the Parliament enacted Central Educational Institutions Act, 2005. Only one of the aspects of Article 15(5) is covered by the legislature in the Central Educational Institutions Act, while Article 15 (5) does apply to private unaided institutions. The Supreme Court confronted with the validity of the amendment as well as the Act of 2005 in Ashok Kumar Thakur v Union of India.^⁴⁴ However, the majority of the Court declined to pronounce on the question whether the application of Article 15(5) to private unaided institutions violated the basic structure of the Constitution. As no private unaided educational institution was arrayed as a petitioner in A K Thakur, four out of five judges found that a decision on this issue was unnecessary and would be properly made when appropriate parties were before it.^⁴⁵ Justice Bhandari, however, chose to delve into the issue. In an elaborate justification for doing so, he acknowledged that no unaided institution had filed a petition. Yet he noted that as the best counsels in the country had appeared in the case he concluded that a brief from an unaided institution would have contributed little to the arguments already before the Court. Since the question of unaided institutions was likely to arise in the future, it was best, according to justice Bhandari, to resolve it now rather than go through the “entire exercise de novo”.^⁴⁶ In light of these “extraordinary facts”, justice Bhandari examined the validity of Article 15(5) with respect to private unaided institutions and held that an imposition of reservation of this sort would violate Article 19(1)(g) and thus the basic structure doctrine, and observed:

Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' 19(1)(g) right to carry on an occupation. Unaided entities, whether they are educational institutions or private corporations, cannot be regulated out of existence when they are providing a public service like education. That is what reservation would do. That is an unreasonable restriction. When you do not take a single paisa of public money, you cannot be subjected to such restriction. The 93^rd Amendment's reference to unaided institutions must be severed^⁴⁷

Thus he severed the 2005 Amendment’s reference to unaided institutions,^⁴⁸ also on the basis of Fundamental Right to carry on business, occupation and profession because the government may suspend Articles 14 and 19 rights in order to implement an emergency^⁴⁹ but not otherwise and hence unreasonable restriction upon this such right is not permissible under the Constitution as he observed:

Freedom under Article 19 belongs to individual citizens. Article 19(1)(g) provides that "all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business." The reference to "all citizens" means that each and every individual citizen possesses Article 19 rights. For the impugned legislation to fall, it need not touch every sphere of society. If even one individual's freedom has been curtailed, this Court is duty bound to entertain his or her claim. It is he or she who possesses the Article 19(1)(g) right to carry on an occupation.^⁵⁰

Two important issues arise out of Justice Bhandari’s examination. First, is the majority’s decision to avoid pronouncing on the application to private unaided educational institutions a political move? Secondly, does justice Bhandari’s conclusions on the validity of Article 15(5) as it applies to private unaided institutions a correct application of the basic structure doctrine? We will address each of these in turn.

While some commentators^⁵¹ have expressed surprise at the majority’s approach, generally courts may legitimately limit their decision to resolving particular disputes before them particularly in Constitutional cases.

However, the state action being challenged in this case is the amendment introducing Article 15(5) and the CEI Act. As the constitutionality of Article 15(5) is under review, the Court was called upon to pronounce on the scope of its application to private unaided educational institutions. To that extent, this was a proper issue for the Court to decide in A K Thakur. Moreover, the Supreme Court is often found to be going beyond the issues in dispute in a particular case, and clubbing similar cases in a manner, that allows it to pronounce on constitutional issues generally and not confine itself to the facts of the case before it.^⁵²

In the light of this track record and the nature of legal challenge before it, the refusal to address the full scope of Article 15(5) is defensible only if it initiates a new rule of court discipline which will be followed in all cases hereafter.

Justice Bhandari’s application of basic structure review to the scope of Article 15(5) could not bind any future bench that will be called upon to decide this question. However, as it is the first view expressed by the Court on the question, it is likely that the Court will look to affirm or distinguish this view in future cases.

However, justice Bhandari’s analysis in A K Thakur finds that Article 15(5) would violate Article 19(1)(g) which guarantees to all citizens the right to carry out any business or profession. It is not clear from the opinion, the extent to which Article 19(1)(g) has a bearing on the basic features of the Constitution and why Article 15(5) must comply with Article 19(1)(g) to be upheld by the Court. We had noted earlier that the Supreme Court has held in TMA Pai that Article 19(1)(g) prevents the state from creating reservation quotas in private unaided educational institutions.

However, this proposition of law would need to be revised in the light of the introduction of Article 15(5). Hence, in order to hold reservation quotas in private unaided educational institutions unconstitutional the Court will need to find a new constitutional basis for this proposition: one that rests on the basic features of the Constitution such as equality. Hence, it seems that justice Bhandari’s conclusion on the constitutional validity of Article 15(5) as it applies to private unaided educational institutions is though supported by adequate reasons and it will require that a future bench of the Supreme Court revisit the question.^⁵³

ISSUE OF CONSTITUTIONALITY OF RESERVATION IN PRIVATE SECTOR:

The noteworthy fact here is that there are only two parties to the reservation in public sector:

the claimants of Art. 15 (1) and Art. 16 (1);
the claimants of Art. 15 (4) and Art. 16 (4)

But in respect of reservation in private sector a third party is also involved in the form of employer, who claims protection under Art. 19 (1)(g). Therefore it is tripartite conflict:

Claimants of Art. 15 (1) and Art. 16 (1) on the basis of merit;
Claimants of Art. 15 (4) and Art. 16 (4) on the basis of equal opportunity and under-representation;
Claimants of Art. 19(1)(g) on the ground of right to carry on business, trade and occupation and such reservation amounting to unreasonable restriction upon such right.

From the point of view of the second party of the above tripartite conflict the point of contention are two:

Because of historical reasons being low of merit, an affirmative action must be made by State in private sector;
Even meritorious they have been discriminated on the ground of their caste in the private sector.

In answer to the first contention of the depressed class, in the light obtained from the discussion of the above judicial pronouncements when applied to the law in respect of private sector employment we arrive to the conclusion that in the present structure of the Constitution and the law which has been laid by higher courts, the protection could not be granted in form of compulsory reservation in private sector upon the same formula in which it is at present in application in Government employment.

Upon the second contention, the answer is that the problem of discrimination cannot be said to require reservation because Article 16 (1) itself the rule against discrimination on the ground of caste and in order to secure the compliance of this rule suitable mechanism can be devised and reservation is not the only solution.

But in spite of the both answers it is very much true that affirmative action in India has not reached to the stage where it should be given up. The existing affirmative action programme in India is though caste-based but the arguments for continuing affirmative action for SCs and STs are as follows:

1. Inter group economic disparity: A large number of livelihood and standard of living linked indicators establish persistence of disparity of a high order between SC/STs on the one hand and the rest of the population on the other. The disparities are evident in educational attainment, labour market outcomes (wages as well as occupational attainment), and other measures such as the “Caste Development Index” (CDI) based on five indicators of standard of living (land holding, occupation, education, ownership of consumer durables, and of livestock), based on the data from National Family and Health Survey.^⁵⁴

2. Dalits continue to suffer from a stigmatized ethnic identity due to the label of untouchability and resultant social backwardness. Human Rights Watch^⁵⁵ amply demonstrates the aspects of violence, exclusion and rejection that Dalits continue to face in contemporary India. There is evidence to suggest that this stigma can affect economic performance adversely, thus perpetuating caste based inequalities. A social identity – a product of history, culture and personal experience of discrimination–creates pronounced economic disadvantage for a group through its effect on individuals’ expectations.^⁵⁶ In controlled settings, in which any possible difference in treatment towards castes was removed, social identity affected behaviour largely because it affected expectations. Thus, their findings provide “evidence for an additional explanation, beyond differences in access to various resources (emphasis in the original), for the tendency for social inequalities to reproduce themselves over time”.

3. If equality of opportunity between castes is the objective, then affirmative action is needed to provide a level playing field to members of SC/ST communities.

4. Finally and arguably, social policy ought to compensate for the historical wrongs of a system that generated systematic disparity between caste groups and actively discriminated against the underprivileged.

5. Caste based discrimination in labor, land, capital and consumer goods markets, continues both in urban and rural areas. In labour market, this is manifest both as wage discrimination and job discrimination. Formal studies of wage and job discrimination have noted discriminatory gaps in earnings, in both the formal and informal sectors, of a very high order^⁵⁷ One study of students from three elite universities in India, provide evidence for continuing caste based discrimination in urban, highly skilled, upper end labour markets – markets that are supposed to be meritocratic and where caste is believed not to matter.^⁵⁸

On the basis of above arguments and the conclusions arrived in objective studies we can say that the opportune time has not come to complete blot the current reservation policy, but there is definitely a need that in order to further the affirmative action policy in private sector employment some other mechanism should also be examined. The alternative mechanism has been discussed in the succeeding part.

Overview of Policies and Programmatic Interventions in India

As pointed out earlier, the affirmative action programme in India primarily consists of caste-based quotas in public sector employment, educational institutions that use public money. The evidence on the implementation of the programme suggests that the actual representation of SC-STs has been less than the stipulated quotas in government jobs. In central government jobs, the proportion of SCs is high in group D employees (as compared to Groups A, B and C). This unfortunately is primarily due to over representation of SCs in sweeping and cleaning jobs. STs are underrepresented in Groups A and B, and mostly concentrated in Groups C and D. It is however true that the representation of SCs and STs in public sector undertakings has been rising over time. The compliance, nonetheless, is greater with quotas at the lower end jobs when compared to the higher end jobs. Similar trends are discernible in insurance and banking companies. It is important to point out that as the economy is liberalizing and privatizing, avenues for employment in the public sector have stagnated and in some sectors, even shrunk in recent years.

This suggests that the case for increasing representation of SCs and STs remains strong. And, this can be attempted more effectively through an incentive system, bringing the private sector within its framework. Studies on the implementation of affirmative action in educational institutions reveal a similar picture. Since affirmative action is not applicable to the private sector, a very large segment of the economy is outside the purview of any mandatory government policy to increase representation of disadvantaged groups.

Group Equality versus Individual Equality

Mandal Commission, 1980 using 1931 Census figures identified the OBCs and arrived at conclusion that 52% population is OBC and recommended for 27% reservation due to 50% ceiling limit. About two decades have been passed since application of these recommendations yet the position of OBCs has not improved according to the expectations. Recently in order to assess the social, educational and economic status of Muslims in India, the government appointed a Committee headed by Justice Rajinder Sachhar.

This Sachhar Committee came up with quite glaring figures regarding Muslims who are also included in OBC list along with the figures on SCs/STs. It provides a comprehensive account of the disadvantaged and stigmatized conditions of the Muslim community in India. The report notes that Muslims rank slightly above SC-STs but significantly below other Hindus in almost all indicators of development. While there are several general programmes directed at the poor, evidence suggests that Muslims have not benefited, commensurate with the needs of the community.^⁵⁹

When compared to the SCs/STs the growth in literacy for Muslims was lower than for the former. The female urban enrolment in literacy ratio for the SCs/STs was 40% in 1965 that rose to 83% in 2001. The equivalent rate for Muslims—that was considerably higher in 1965 (52%)—recorded a figure of 80%, lower than the figure for the SCs / STs. According to the Sachar Committee’s findings, 25 % of Muslim children in the 6-14 age-group either never went to school or else dropped out at some stage. Muslim OBCs fall below the Hindu OBCs in all categories. General Muslims far the worst being behind both Hindu and Muslim OBCs. According to the Sachar, only one out of 25 undergraduate students and one out of 50 post-graduate students in ‘premier colleges’ are Muslims. The percentage of graduates in poor households pursuing post-graduate studies is significantly lower for Muslims: Hindus General (29%); SCs/STs (28%); OBCs (23%); Muslims (16%). The unemployment rate among Muslim graduates is the highest among all Socio-Religious Categories, poor as well as non-poor. Similarly, Muslims have a considerably lower representation in jobs in the government including those in the PSU compared to other Socio-Religious Categories. According to these findings, in no State of the country the level of Muslim employment is proportionate to their percentage in the population.^⁶⁰

Though above figures are in respect of Muslims, which are also included in the list of OBCs leaving only one or two castes amongst Muslims out of the list. These finding succinctly point out that the policy of reservation based on the determination of SEBCs by the Mandal Commission has failed to fulfill its objective. The Mandal Commission as seen earlier, has primarily taken caste and group social, educational and economic status as the basis of determination of backwardness of citizens as a class. It did not gave any heed to the individual status of the member a particular class etc. Besides, the reservation on the basis of religion has been held constitutionally invalid in Champakam Case^⁶¹ and In re-Kerala Educational Bill cases^⁶². Therefore in present setup reservation in private sector is constitutionally invalid. In order to validate constitutionality of affirmative action in form of reservation we have to look for other methods of affirmative actions which are vogue in other parts of the world and recommendations of various committees set-up by the government of India in this regard.

Though in USA the affirmative action is discussed but it is needed to remind that it is largely based on diversity index as it is found that increasing divesity would enhance the performance. The benefits go beyond representational justice. As the US SC noted in respect of education in Grutter vs Bollinger^⁶³, a diverse “admissions policy promotes cross racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. These benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.” Similar benefits may be seen in a diverse workforce.

Individual Backward in Contrast to Group Backwardness:

It all started with the Justice Rajinder Sachar Committee^⁶⁴ realising that the backwardness of Indian Muslims is a result of a larger institutional and societal context, it made two specific recommendations designed to benefit all vulnerable groups, not just Muslims:

...the Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by the government to look into the grievances of the deprived groups,
enhancement of diversity in different spaces should be seen as a larger policy objective... The idea of providing certain incentives to a “diversity index” should be explored.

This out-of-the-box thinking that went beyond reservations in public employment and education were necessary because of the constitutional impermissibility of reservations for religious groups. Two separate expert groups were set up as a follow-up measure to look into these two suggestions in further detail. The issue examined by both the expert groups as well as their findings are discussed in succeeding two heads:

1. Promoting Diversity

In a non-discriminatory world, all public spaces will be diverse (public “spaces” include privately owned business, housing societies and schools since the functions they perform are of a quasi-public nature). If hiring, admitting, leasing and selling policies are non-discriminatory, the social mix of a workforce, students or housing society will roughly reflect that of the society itself. Since this is not the case, positive action is needed. The second expert group, chaired by Amitabh Kundu submitted report in June 2008 to “propose ‘diversity index’ and to work out the modalities for implementation”. The Kundu report recognised that the Sachar report’s impact would be wider than its principal objective. While the Kundu report discussed in this section is more directly concerned with the representation of various groups in the workforce, anti-discrimination legislations definitely augment other measures to encourage diversity. But the latter have their main value in promoting a national culture that is intolerant of unfair discrimination. This battle of minds is perhaps more, if not as, important as the battle of numbers.^⁶⁵ The Kundu report argues thus:

The case for increasing social diversity in public spaces can be built on the notion of a fair demographic representation for all groups of population. Groups that are subjected to discrimination in society tend to get under-represented (as compared to their proportion in the population) in several public spheres. This leads to inequity and alienation resulting in resentment and frustration among the excluded population. These could assume violent and secessionist expressions, leading to disruption in social and political life, with serious negative consequences for growth, development and social harmony...^⁶⁶

There are numerous cases when the individual characteristics have been rendered either secondary or completely redundant in determining her/his access to these institutions as group identities overwhelm or dictate the decision-making process.

Diversity, although linked to discrimination, is an independent concept. As the Kundu report emphasises, its main concern is the “Concentration or clustering of populations with similar socio-economic, religious and ethnic characteristics in geographical, social, political and institutional spaces...” A concentration of minority groups in a public space is as regrettable as that of a majority group. As such, diversity transcends the majority-minority divide.^⁶⁷

The Kundu report does not restrict the sensitivity of diversity to religion alone. The report recommends a diversity-index which is sensitive to caste, religion as well as sex in a given public space. It calculates the “diversity gap” in a public space by comparing the actual intake of members of a particular religious, caste or gender group in a given institution to the “population who are eligible to enter the institution” and not to the general population.^⁶⁸

While admitting that a low number of eligible members itself may be a result of discrimination, the report justifies this as a pragmatic compromise because “an individual institution has limited role to play in changing that”.

The diversity gap is designed to ensure that only social exclusion is corrected – so, only if a community is under-represented in proportion to its eligible population will the institution be rewarded for enhancing its participation. If a community (even if a minority) is already over-represented in a given institution, it cannot claim any benefits.^⁶⁹

Once diversity gap has been identified in an institution, the report recommends that those institutions which take measures to bridge the gap should be rewarded by the state with incentives, concessions, access to public land and resources, tenders, export quotas, preferences, advertisements, etc; while those institutions that ignore the diversity gap are not punished but do not get the benefits either.^⁷⁰

The report identifies three sectors to push for diversity – education, employment and housing. It recommends:

Incentives in the form of larger grants to those educational institutions that have higher diversity and are able to sustain it over time. These incentives can apply to both colleges and universities, both in public and private sector.
Incentives to provide the public and private sector enterprises and institutions to encourage diversity in their workforce. While such initiatives should be part of the corporate social responsibility, some affirmative action may help initiate this process.
Incentives to builders for housing complexes that have more “diverse” resident populations to promote “composite living spaces” for “socio-religious communities”.^⁷¹

Thus, the implementation scheme is based only on carrots, not sticks. The concept has been employed in various other countries. In a recent book entitled Buying Social Justice Christopher McCrudden (2007) draws on jurisdictions as diverse as the US, Malaysia, the European Union, Canada and South Africa to provide an excellent empirical analysis of the way in which they have tried to balance private freedom with social goals, by “buying” social justice. Instead of relying on their “imperium” (power of sanction), these jurisdictions have relied on their “dominium” (power of purse) to achieve social justice goals. The idea is an intelligent compromise between entrepreneurial freedom and social justice, and is a useful one to try out in India.

The report suggests that “this approach has greater flexibility than the system of reservations. The diversity-based incentive system, first and foremost, creates awareness. It sets the goal towards which the institutions would work, and while these goals may not be achievable immediately, institutions must try and achieve them gradually, within a reasonable period of time.” It further argues that reservations might make sense in “certain specific situations” but the diversity approach is “a more effective and, we hope, a more acceptable solution” for “long term... systemic change”.^⁷²

2 Prohibiting Discrimination

The second expert group^⁷³, chaired by Madhava Menon, was asked to “examine and determine the structure of an Equal Opportunity Commission”. It submitted its report in February this year.

The main focus of the EOC proposed by the Menon report will be to weed out discrimination against members from “deprived groups” identified by an objective deprivation index, and defined by “sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...” ground. Thus, the eligibility requirement for protection by the proposed law is deprivation based on an open-ended list of irrelevant personal characteristics.^⁷⁴

The final residual clause “or any other” is a place-holder for other analogous autonomy-infringing grounds that may be filled in later. Although this foresight is commendable, it will be a good idea to expand the list to include currently known analogous grounds like “sexual orientation, marital status, food preference, age, dress preference, gender identity, pregnancy”, etc, while still retaining the residual clause.^⁷⁵

The proposed bill in the Menon report also recognises that deprivation is contingent. What is today a deprived group may not be so tomorrow. Protection will be dependent not on the much maligned “vote-bank politics” but on a principled demonstration of deprivation through the deprivation index. Further, the bill recognises our multiple identities by moving away from a focus on single interest groups and instead arriving at the generic idea of “deprived groups”.

One may be rich, male and able, but a Muslim religious identity may result in being discriminated against nonetheless. Again, a dalit lesbian woman carries several depriving identities, the totality of which cannot be captured by a single issue oriented law.

This design is not only morally better but also has a more universal appeal –with the rich and complex diversity of human identities, most of us are more likely to see ourselves as potential victims of illegitimate discrimination rather than as perpetual non-beneficiaries. This raises the possibility of empathy with victims of discrimination rather than empathy failure caused by divisions between us-and-them.^⁷⁶

In its potential impact, the Menon report is the least ambitious of the three suggestions being discussed here. It only goes so far as imposing a negative obligation on public as well as private bodies: refrain from discriminating unfairly. There is no positive requirement to do good. This is what makes it possible to have a long list of beneficiaries – unfair discrimination against anyone is wrong. But it is particularly wrong against a member of a deprived group, because by definition they have few opportunities available to begin with.^⁷⁷

The Menon committee is, correctly, “of the firm opinion that the jurisdiction of this Commission should not be limited to the public sector”. Yet, citing incremental sectoral progress, it suggests that only employment and education should be the initial focus of the EOC. The deferment of its application to the housing sector to a later date is unfortunate, given rampant discrimination on the grounds of religion, caste, food preference and marital status existing in that sector.^⁷⁸

To what extent anti-discrimination legislations can help eradicate structural injustice in the short-term is debatable. Driven as they usually are by complaints from victims, even a very effective enforcement mechanism can only be expected to deal with only a limited percentage of existing discrimination in society and that too after the discrimination has taken place. This has been addressed to a limited extent by the Menon report which seeks to grant a broad policymaking role to the proposed EOC.

FUTURE DIRECTION:

At this juncture upon the conclusion it is followed that the constitutional goal of substantive equality also cannot be totally sacked. Upliftment of the status of the depressed class is also need. With the unprecedented growth of private sector role in whole economy it is a bounden duty of the State to explore in one form or other scope of affirmative action in private sectors enterprises. Since the present method of reservation has become redundant if applied to the private sector, in order to explore other avenues the government recently appointed the Sachar Committee. Though the mandate of the committee was to look into the social, educational and economic status of a particular religious minority, yet it has also gone in detail about the examination of merits and demerits of present system of affirmative action. The Committee recommended for creation of an Equal Opportunity Commission and enhancement of diversity in public spaces by creating a diversity index to promote incentives to those who enhance diversity in their workforce.

Both these recommendations can be seen in larger perspective to appreciate the advantage of this proposal over the existing formula of affirmative action. Upon these recommendations two expert groups were formed. The first among them, headed by head of ISI, Kolkatta, came up with few suitable formulas which can be applied in enhancing the diversity in public spaces and particularly in private sector. When promotion of diversity will be clubbed with the incentives in the form of tax incentives, soft bank loans, land on lower cost etc., which may accrue to the employer enhancing diversity in workforce it would certainly push the private sector to employ more of the depressed class including STs/SCs/OBCs/Women/Disable persons etc., as it would be economically beneficial to the employer.

The second Expert Group on modalities and framework of the Equal Opportunity Commission Expert Group headed by Madhava Menon has suggested a Bill namely, “The Equal Opportunity Commission Bill, 2008” which under its Preamble gives the objectives for which the Equal Opportunity Commission is proposed to be constituted, viz.:

“Whereas the constitution of India in its Preamble promises to secure to all its citizens EQUALITY OF STATUS AND OF OPPORTUNITY and

directs the State [Article 38(2)] to strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also amongst groups of people residing in different areas or engaged in different vocations,
mandates the State [Article 41] to make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of\undeserved want, and
imposes a positive duty [Article 46] to promote with special care the educational and economic interests of the weaker sections of the people in order to protect them from social injustice and all forms of exploitation”;

Thus the preamble of the Bill clearly shows the pious object of fulfilling the Constitutional obligations in respect of advancement of educational and economic interest of weaker class and to protect from all forms of exploitation.

Under the Bill “Deprived group” means a group of persons who find themselves disadvantaged or lacking in opportunities for reasons beyond their control or suffer from impaired ability to make good existing opportunities to access rights and entitlements available under law or schemes of the government.^⁷⁹ While “Equality of Opportunity” defined to mean existence of conditions which would enable the disadvantaged to overcome the disabilities in accessing rights and entitlements like other groups, whether similarly placed or not.^⁸⁰ As per the Bill “Denial of Equal Opportunity” to mean any action, conduct or measures resulting in or is likely to result in discrimination or deprivation, and includes any action taking away in any manner existing opportunities for livelihood, vocation, occupation or employment or any other livelihood rights and entitlements.^⁸¹

The Bill defines “Discrimination” in most extensive terms to include any distinction, exclusion or restriction made on the basis of sex, caste, language, religion, disability, descent, place of birth, residence, race or any other which results in less favourable treatment which is unjustified or has the effect of impairing or nullifying the recognition, enjoyment or exercise of equality of opportunity, but does not include favourable treatment given in fulfillment of constitutional obligations towards Scheduled Castes, Scheduled Tribes, backward classes, women and children. Discrimination includes direct and indirect discrimination. ‘Direct discrimination’ occurs when a person intentionally or with knowledge violates the principle of equality guaranteed by the Constitution. Any other discrimination which has the effect of impairing or nullifying the exercise of equality of opportunity or which results in less favourable treatment will be as per the Bill deemed to be ‘indirect discrimination’.^⁸²

The Bill proposes to implement equality of opportunity through a “Deprivation Index” which as per Bill means the formula or scheme by which the Commission would identify the “deprived groups”. These may vary according to the sectors and regions surveyed in relation to the equal opportunity situation. There may be different levels of deprivation as well. The formula or scheme thus evolved may employ indicators legally recognized in the past for determining social and economic backwardness and may include other factors found relevant by the Commission. It may assign weighted scores to various indicators in order to evolve an index of deprivation, which it considers fair to all concerned. The Deprivation Index thus worked out together with the basis of such calculation may be notified by the Commission. It may modify it if found necessary after proper notice.^⁸³

Discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth is expressly forbidden by the Constitution itself. Arbitrariness is against the spirit of equal opportunity. There is therefore no need for a separate anti-discrimination law to afford equal opportunity to citizens against the State or State-sanctioned private enterprises.

The provision with regard to the constitution of the EOC has been provided under section 4 of the Bill. The duty to constitute EOC has been imposed upon Central Govt. which shall comprise of Chairman, two full time and four part time members. Besides the Regional EOC Chairman will be ex officio member of the EOC. The Chapter III of the proposed Bill deals with the Regional Equal Opportunity Commissions while under chapter IV, their jurisdiction, function and powers have been given. Under section 22 it has been provided that the EOC shall jurisdiction upon the complaints of deprived groups who have been denied or who claim to have been denied equal opportunities by government, public and private bodies, and in particular with reference to:

(a) Access to employment including self-employment and conditions thereof.

(b) Access to education including primary, secondary, tertiary, special education, professional and vocational, and conditions thereof.

(c) Such other areas which the appropriate Government may decide and request the Commission to include in its jurisdiction.

The EOC may assume jurisdiction on any of above cases suo motu or on any complaint or representation by an individual or a group or by reference to it by the Central or State Government or a statutory body under government or by a competent Court seized of the matter.

Provided in the case of a complaint from an individual the complaint manifests a group dimension, that is to say that it is not an isolated incident affecting one individual and is a practice that may constitute discrimination or denial of equality of opportunity.

The functions of the proposed EOC would be to assist deprived groups in securing equal opportunities through suitable schemes or legislation. For that purpose it would function to work towards ensuring the elimination of all forms of discrimination and denial of equal opportunities in all walks of life, and investigate into matters inequality and propose remedial measures. Its functions also include evaluation of attainment of equal opportunity, to mediate, conciliate and settle disputes relating to discrimination and denial of equality of opportunity and many other similar functions.^⁸⁴ Chapter V deals with the procedure for investigation, inquiry and review and Chapter VI with orders, directives and their enforcement. Chapter VII has the theme of finance, accounts and audit of the accounts of EOC.

Conclusion

Reservation has become a controversial issue these days owing to politicization of this issue in India. Apart from this, the dwindling condition of government jobs with the advent of globalization, liberalization and privatization has aggravated the condition. Actually, the policy of reservation can be reaped and utilized only in government sector. But a big question has arisen that what would happen when there would be no scope of getting jobs in case of lack of government jobs. Because the governments opportunities are shrinking due to heavy disinvestment policy pursued by the State. This issue has in turn given rise to issue of providing reservation in private sector. But private sectors have been adamant to eschew introduction of this defective policy in their domain. Their contention is that reservation is based on anti-merit policy, and that is why it would badly affect the quality and credit of their working.

This is a stark reality that jobs in government sector is decreasing but only this reasoning cannot be a convincing ground for introducing reservation policy in private sector. A pertinent question in this juncture arises that what was the main reason behind privatizing any sector. The easy answer to this would be to maintain quality and bring sharpness in the sector which was lacking in case it was government owned and regulated. Therefore it is humbly suggested in the line of the proposal of private sector that the stakeholders of reservation can be given some sort of monetary or pre-joining training by these sectors rather than taking them directly in the garb of reservation or so called affirmative action.

Further, it is argued that the vacuum created by closing of government sectors has taken away all hopes of the claimants of reservation to get a government job and mingling themselves in the mainstream of society. In response to this argument it can be said that the need of hour is to make a more feasible policy to strike a balance between the interest of claimants and the interests of private sectors. This will truly help in securing the goals of constitution and the interests of private sectors.

Another related finding is that the Constitution was framed in way back in 1950s and it was guided only by the ethos of communism and socialism and did not ever considered capitalism as basis of the framework which was devised. Therefore the provisions of the Constitution were reflection of socialistic pattern of society in which maximum benefit to maximum number was the guiding principle. Ultimately with 42^nd Amendment the socialism became one of the basic features of the Constitution. Therefore the constitutional provisions which framed for the inclusive development of the country are now found to be worthless in the present era of globalization, liberalization and privatization.

Apart from that the private sector would also suffer from the discrepancies and demerits existing in the present formula. Therefore it would also suffer from the inefficiency, lethargicity, red-tappism, corruption resulting into low productivity ultimately failure of the enterprise as we have seen in the past in respect of public sector enterprises. Besides the political motives would always play a determinant role in any action taken by the private employer against the delinquent or inefficient employee availing reservation.

All this brings us to an irresistible conclusion that the present framework of constitution or law reservation in private sector employment in present form is constitutionally invalid.

The discussion upon the three recent committees and their recommendations clearly shows that it is no more feasible to continue the backward looking affirmative action scheme as it has failed to deliver the expected results and hence the second affirmative action scheme could be more effective in achieving the goals of social and substantive equality. At the first this scheme can been applied at an experimental basis in the private sector and if found to be more suitable to the present scheme it could also applied in the public and government sector employments.

In spite of the good effort of the Menon group the implementation aspect suffers from certain lacunae. In place of various existing commissions for ST/SC/OBC/Women/ Disabled persons one EOC could cover the area of coverage by these numerous commissions.

Still it is commendable that the voices of dissidents of the present reservation policy has now been officiated by these three committees/expert groups. The proposal if applied in private sector, it would neither create much of euphoria as direct benefit of enhancement of diversity will be a motivational factor for the private sector enterprises while the negative requirement against discrimination on irrelevant grounds would ensure that the eligible aspirants from the depressed and vulnerable class of citizens are not discriminated and afforded an equal opportunity of employment.

1 P.B. Sawant, The Constitution, Equality and Reservations, (June 14, 2003) Mainstream,

2 Prakash Louis (2005): ‘Affirmative Action in Private Sector’, August 14 Economic and Political Weekly,.

3 Tarunabh Khaitan (2008), ‘Transcending Reservations: a Paradigm Shift in the Debate on equality’, September 20, Economic & Political Weekly, pp.8-12

4 G Thimmaiah (2005), ‘Implications of Reservations in Private Sector’ Feb 19, Economic and Political Weekly 745

5 Ibid.

6 Ibid.

7 Sunil Kumar Munjal, President of CII in an Article published in The Times of India, New Delhi, June 23, 2004.

8 Report by the Expert Group to Examine and Determine the Structure and Functions of an Equal Opportunity Commission Set up by the Ministry of Minority Affairs, Government of India, February, 2008.

9 Supra note 4.

10 Satish Deshpande and Yogendra Yadav (2006): ‘Redesigning Affirmative Action: Castes and Benefits in Higher Education’, Economic & Political Weekly, July 17, p 2419.

11 Sukhdeo Thorat, (2006): ‘Paying the Social Debt’, Economic & P olitical Weekly, June 17, pp 2432-34.

12 Supra note 8, at para.. 1.1.

13 Ibid

14 Supra note 8, at p. 16

15 Supra note 3.

16 State of Kerala v N.M. Thomas (1976) 2 SCC 310., Per K.K. Mathew.J.

17 Article 46.

18 Supra note 16 at para 2.6

19 State of Kerala v. N.M Thomas (1976) 2 SCC 310.

20 Ibid.

21 Ibid.

22 Amarnath Mohanty (2007), “Affirmative Action in India: An Alternative Perspective”, Economic & Political Weekly, Vol. 42 , No. 30, July 28 , p. 3153.

23 Ibid.

24 Ibid.

25 Ibid, at p. 3152.

26 J Waldron, (1992): ‘Superseding Historical Injustice’, Ethics, 103, cited in ibid

27 Supra note 4, at p. 745

28 Ibid., at p 747

29 Ibid.

30 Ibid

31 See Indira Sahwney v Union of India AIR 1993 SC

32 Supra note 4 at p. 748

33 M.R. Balaji v State of Madras AIR 1963 SC 649 finally approved in Indira Sahwney v Union of India. AIR 1993 SC 477

34 Supra note 4.

35 Ibid.

36 Ibid. at p 748

37 Ibid.

38 Ibid

39 Ibid.

40 Ibid.

41 Supra at page. 3

42 Per Lahoti CJI, in PA Inamdar v State of Maharastra (2005) 6 SCC 537 at p. 538

43 Art.15(5) of Indian Constitution

44 2008(5)SCALE1, (2008)6SCC1

45 A K Thakur, at para. 79 (Balakrishnana CJ) , at para. 138 (Pasayat J.), at para. 1 (Raveendran J.)

46 Ibid, at para 133.

47 Ibid., at para. 132.

48 Ibid., at para. 178.

49 See: Articles 358 and 359

50 Supra note 42, at para. 169.

51 P B Mehta, ‘It’s a Landmark’, Indian Express, April 11, 2008.

52 Sudhir Krishnaswami & Madhav Khosla (2008), ‘Reading A.K.Thakur vs Union of India: Legal Effect and Significance, Economic & Political Weekly, July 19, pp 53-60.

53 Ibid, at p. 56.

54 Ashwini Deshpande (2001): “Caste at Birth? Redefining disparity in India”, Review of Development Economics, 5:1, February, pp. 130-144. See also Ashwini Deshpande (2007): “Overlapping identities under liberalization: gender and caste in India”, Economic Development and Cultural Change, 55:4, July, pp. 735-760.

55 Human Rights Watch: “Broken People: Caste violence against India’s “untouchables”, (1999) Human Rights Watch, New York.

56 Karla Hoff and Prinyanka Pande: “Belief Systems and Durable Inequalities: an experimental investigation of Indian caste”, World Bank Working Paper(2004) available on http://econ.worldbank.org/working_papers/36689/

57 S. Madheswaran and Paul Attewell (2007): “Caste discrimination in the Indian urban labour market: evidence from the National Sample Survey”, Economic and Political Weekly, Vol.42:41, October 13,.

58 Ashwini Deshpande and Katherine Newman (2007): “Where the path leads: the role of caste in post university employment expectations”, Economic and Political Weekly, Vol. 42:41, October, pp. 4133-4140.

59 Report of Prime Minister’s High Level Committee on Social, Economic and Educational Status of the Muslim Community of India constituted by the Ministry of Social Justice, Government of India, 2006

60 Ibid.

61 AIR 1951 SC 226

62 [1959]1SCR995

63 539 US 306 (2003), 330

64 Supra note 57

65 Report of the expert Group to Propose a Diversity Index and workout the Modalities of Implementation submitted to Ministry of Minority Affairs, Government of India 2008

66 Ibid

67 Supra note 3

68 Ibid

69 Ibid

70 Ibid.

71 Supra note 63

72 Supra note 3

73 Report by the Expert Group to examine and determine the structure and functions of an Equal Opportunity Commission Set up by the Ministry of Minority Affairs, Government of India, 2008

74 Ibid

75 Supra note 3

76 Ibid

77 Ibid.

78 Ibid.

79 Section 2 (g), of the Bill

80 Section 2 (h)

81 section 2 (i)

82 Section 2 (k)

83 Section 2 (j)

84 section 23

Protection Of Plant Varieties In India: Perspectives And Issues

Sun, 20 May 2012 07:26:35 +0530

I Introduction

The agreement on Trade-Related Aspects of Intellectual Property Rights^¹ forming an integral part of the Agreement establishing the World Trade Organisation^² set out compulsory uniform standards of intellectual property protection through out the world i.e., patents, copyrights etc.^³ Article 27.3(b) of the TRIPS Agreement imposes an obligation on all member countries of the WTO to protect plant varieties either by patents or by a sui generis regime or by a combination of both.^⁴ The issue of plant variety protection is significant and can be understood in two ways: first, in the narrow sense where protection of plant variety is important to provide an incentive to commercial breeders for developing new plant varieties; and, second, in the broader sense where plant variety protection has direct linkages with the rights of the farmers who have traditionally been breeding plant varieties as per their local conditions, accessibility to Plant Genetic Resources^⁵ and concerns related to food security. Farmers have played an important role in the conservation of PGR and will continue to do so in the future as well. Because of their enormous contributions in the past, present and future towards the conservation of PGR, farmers have an important stake in any legal regime on plant variety protection and such a regime should take into account their interests and concerns.

India explored the sui generis option given in the TRIPS Agreement to fulfill its WTO obligation.^⁶ India developed a regime for the protection of plant varieties known as the Protection of Plant Varieties and Farmer’s Rights Act, 2001.^⁷ This is a unique legislation because it involves all the commercial actors involved in PGR management, i.e. breeders and farmers, in a comprehensive manner.^⁸ Presently, India is also contemplating a new seeds law^⁹ which, if enacted, will replace the existing Seeds Act, 1966. The move towards enacting the new seeds law is important when seen in light of the PPVFR Act and India’s proposed membership of International Union for the Protection of Plant Varieties^¹⁰. This research paper looks at the interplay between the PPFVR Act, the Seeds Bill 2004 and India’s proposed membership of the UPOV.

Before one discusses these issues in detail, it will be appropriate briefly to lay down the objectives of Article 27.3(b) of the TRIPS Agreement, UPOV and the Seeds Bill 2004 in order to provide a suitable background for the discussion to follow. As mentioned in the first paragraph, an important objective of Article 27.3(b) of the TRIPS Agreement is to provide an incentive to commercial plant breeders to develop new plant varieties. This objective needs to be appreciated in the context of attempts that have been made and are being made, nationally, regionally and globally, to expand intellectual property protection to agriculture. Developments related to protection of plant variety are not new and date back to the 1920s and 1930s when many countries introduced legislation that evolved into a sui generis system of protection of plant varieties. This sui generis system of protection provided an intellectual property right in the form of Plant Breeders Right^¹¹ distinct from the patent regime, which developed in some countries such as the United States.^¹² The US developed a Plant Patents Act 1930, which further spurred the expansion of intellectual property in agriculture. The pressures of expanding intellectual property protection to agriculture globally increased and, eventually, this journey via the formation of UPOV reached an important destination, where providing plant variety protection was made mandatory for all WTO members through Article 27.3(b) of the TRIPS Agreement. This development had an important bearing on developing countries because these countries were now under a treaty obligation to provide plant variety protection under their domestic laws.^¹³ However, what also needs to be appreciated is that Article 27.3(b) gives the option to countries on how to provide plant variety protection and does not make it mandatory for countries to protect plant variety protection through patents. Thus, the objective of Article 27.3(b) seems to be to boost the protection of plant varieties not necessarily through patents. One important feature of Article 27.3(b) is that it is subject to revision after 4 years of entry into force of the agreement that created the WTO^¹⁴. Providing for a review of Article 27.3(b) in just 4 years after the implementation of the agreement arguably shows how difficult it was for the member countries to agree to Article 27.3(b).^¹⁵

UPOV is an international organization that provides a model for sui generic plant variety protection, using whichever countries can provide protection for newly developed plant varieties without granting patents on newly developed varieties. The UPOV Convention was initially negotiated and developed among the Western European Countries and the countries belonging to the Organization for Economic Cooperation and Development^¹⁶.^¹⁷ As it is evident from the mission statement of UPOV, the central objective of UPOV is to provide and promote an effective system of plant variety protection with the aim of encouraging the development of new varieties of plants.^¹⁸ Providing and promoting the protection of plant varieties may affect the rights and interests of other stakeholders such as farmers and their rights, and it is in this context that the UPOV model assumes importance. The UPOV model also assumes importance in light of the obligation imposed by Article 27.3(b) of the TRIPS Agreement.

India, in 2004, introduced a bill called the Seeds Bill 2004 to replace the present Indian Seeds Act 1966. The objective of the Seeds Bill 2004 is to regulate the quality of seeds for sale, import and export and to facilitate the production and supply of seeds of quality and for matters connected therewith or incidental thereto.^¹⁹ The bill proposes to bring all the players, from the seed producer to the seed retailer, under the law to facilitate effective regulation of the production, supply and distribution of seeds. The bill, as it is claimed, also intends to put a check on the sale of spurious and poor-quality seeds and to increase private sector participation in the production, distribution, certification and testing of seeds.^²⁰ One may not find much fault with these objectives. However, the Seeds Bill 2004 assumes importance, in this debate, because of its interplay with the PPVFR Act. What is discussed in the Research paper is how the Seeds Bill 2004, in order to achieve its objectives, may undermine the Indian sui generis plant variety law and what relationship this development has with India’s UPOV membership issue.

II Sui generis Option and Plant Varieties Protection in India

A discussion on the sui generis option in the TRIPS Agreement to protect plant variety is important to lay down the broader framework. The sui generis system received international recognition in the 1960s with the adoption of the UPOV Convention, which provided an international agreement to administer rules on the protection of plant varieties and recognized PBR. It was first adopted in 1961 and was amended later in 1978 and 1991. Presently, both the Acts, i.e. the 1978 Act and the 1991 Act, are in force.

The significance of UPOV as the sui generis option to protect plant varieties increased after the adoption of the TRIPS Agreement. It is important to understand the reason as to why UPOV became popular after the adoption of the TRIPS Agreement, although the TRIPS Agreement does not impose any obligation on a WTO member country to join UPOV. The TRIPS Agreement only makes it mandatory for countries to develop a legal regime towards the protection of plant varieties where one way of protection is by developing an effective sui generic system.^²¹ Because UPOV, which was already in existence when the TRIPS Agreement was adopted, provides a sui generis plant variety protection model, it acted as a ready-made option for many countries endeavouring to develop domestic plant variety protection regimes.^²² Many countries joined UPOV and modelled their domestic plant variety protection regimes as per the UPOV conventions.^²³ Presently, UPOV has 64 members, out of which about 40 countries became members of UPOV after 1995, i.e. after the formation of the WTO and the adoption of the TRIPS Agreement.^²⁴ From 1961 to 1995, UPOV had only about 25 countries as its members and the majority of members were developed countries.^²⁵ These statistics show that UPOV’s membership increased significantly after the formation of the WTO.

One of the important features of the sui generis laws modelled on the basis of UPOV 1978 or 1991 is that they do not contain effective farmers’ rights provisions because both these conventions are modeled to suit the interests of plant breeders.^²⁶ Both the conventions of UPOV recognize narrow farmers’ rights such as the right to only re-use propagating material such as seeds from the harvest of the previous year and freely exchange seeds of the protected plant variety. These conventions do not recognize positive rights of the farmers, such as the right to sell the seed, right to protect their varieties or right to share benefits with the breeders as the donors of the germplasm.^²⁷ This point is important in understanding the other important obligation imposed by Article 27.3(b) of the TRIPS Agreement that if a country develops a sui generis plant variety protection regime, such a sui generis regime should be ‘‘effective’’. However, Article 27.3(b) does not define what an ‘‘effective’’ sui generis regime is. Therefore, one of the important issues is how to interpret the term ‘‘effective’’ or rather what an ‘‘effective’’ sui generis plant variety protection regime implies. It has been argued that the UPOV system provides an ‘‘effective’’ sui generis regime for the protection of plant variety because UPOV provides for strong breeder rights without much exceptions.^²⁸ The advocates of the UPOV regime as an ‘‘effective’’ sui generis system to protect plant varieties interpret effectiveness solely in terms of the degree of protection provided to the plant breeder. According to this interpretation, the higher degree of protection to the plant breeder the more effective the sui generis plant variety protection regime. Hence, this interpretation implies that the plant variety protection regime should solely focus on the concerns of the intellectual property rights holders and, at best, recognize only limited deviations such as narrow farmers’ rights as given in the UPOV conventions.^²⁹ However, this is a narrow interpretation of an ‘‘effective’’ sui generis regime because it is concerned solely with the effectual rights of the plant breeders such as the exclusive right to sell and market the plant variety that they have developed and registered without recognizing the rights of other actors such as farmers, who also play an important role in the protection of plant varieties.^³⁰

A country may develop a sui generis plant variety protection law that recognizes all the exclusive rights of plant breeders but with exceptions such as recognizing the positive rights of farmers to develop and register their own varieties and the right to sell seeds obtained from their previous harvest. This law is also an ‘‘effective’’ sui generis plant variety protection regime because it is guaranteeing effective rights to the plant breeders although the degree of protection provided to the plant breeder may not be as high as is the case with the two UPOV regimes.^³¹ However, this law, apart from recognizing effective rights of the plant breeders, also provides for positive rights to the farmers of the kind mentioned above. Such a law is very much within the mandate of Article 27.3(b) of the TRIPS Agreement. Article 27.3(b) no where states that for a plant variety protection law to be ‘‘effective’’, the degree of protection given to the intellectual property holders should be as high as UPOV. A good example of this is the Indian plant variety protection law, which is a sui generis law drafted by India to fulfill the obligation imposed by the TRIPS Agreement of protecting plant varieties through an ‘‘effective’’ sui generic plant variety law. The Indian plant variety protection law, along with plant breeders’ rights, also provides positive farmers’ rights, such as allowing farmers to register the varieties that they have developed and enjoy all rights that accrue from such registration. This legislation is an example of interpreting the word ‘‘effective’’, occurring in Article 27.3(b) of the TRIPS Agreement, broadly to develop a sui generis plant variety protection regime that comprehensively covers all the actors involved in plant variety protection.^³² The Indian legislation shows that positive rights of farmers can be incorporated within an ‘‘effective’’ sui generis plant variety protection regime without compromising on the principal rights of the plant breeders.

In other words, the fact that the term ‘‘effective’’ has not been defined in Article 27.3(b) gives countries a wide degree of discretion in interpreting ‘‘effective’’ to develop a sui generis plant variety protection law that not only recognizes effective breeder rights but also the rights of farmers such as accessibility and control over seeds and PGR, which is important to achieve food security.^³³ The issue of food security is directly linked to the PBR regime because a very strong PBR regime may reduce the farming community’s accessibility to seeds. This may push farmers to the market each time they want to buy seeds and impede the age-old practice in developing countries where farmers freely exchange and sell seeds and breed new varieties.^³⁴

Salient Features of the Plant Varieties and Farmers’ Act, 2001: The research paper will now examine some of the salient features of the Indian sui generic regime before examining its link with the UPOV membership issue and the proposed Seeds Bill. The objective of India’s sui generis regime embodied in the PPVFR Act is to ‘‘provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and encourage the development of new plant varieties’’.^³⁵ In order to achieve this objective the Act has the following as its salient features-PBR and registration of new plant varieties that fulfill the conditions of Novelty, Distinctiveness, Uniformity and Stability;^³⁶ the right of the farmers to register their own varieties; the right to save, use, sow, re-sow, exchange, share or sell farm produce including seeds; disclosure requirement and benefit sharing; protection of extant varieties; and grounds for challenging the registration and issuance of Compulsory Licences^³⁷. Many of these novel features of the Indian sui generis regime go beyond the two UPOV conventions. These differences between the PPVFR Act and UPOV 1978 and 1991 are discussed later in the research paper. The salient features of the Indian plant variety law are discussed below.

Registration of New Varieties and Plant Breeders Rights: The PPVFR Act provides for the registration of new varieties that conform to the criterions of NDUS.^³⁸ The Act states that a plant variety will be novel if, at the date of filing of the application for registration for protection, the propagating or harvested material of such a variety has not been sold or otherwise disposed by or with the consent of its breeder or his successor for the purposes of exploitation of such variety.^³⁹ As per the Act, a plant variety shall be distinct if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing the application.^⁴⁰ The Act describes that a plant variety will be uniform, if subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its essential characteristics^⁴¹ and stable if its essential characteristics remain unchanged after repeated propagation.^⁴² If these criterions are fulfilled, a plant variety can be registered. Such registration shall confer an exclusive right on the breeder to produce, sell, market, distribute, import or export the variety.^⁴³

Farmers’ Rights: One of the most important characteristics of the PPVFR Act is that it contains farmers’ rights as positive rights that go beyond the usual characterization of farmers’ rights in the international treaties. Although international instruments such as the Food and Agriculture Organization^⁴⁴ resolution 5/89^⁴⁵ and the International Treaty on PGR^⁴⁶ recognize the concerns related to the commercial exploitation of the germplasm by the plant breeders where no benefit accrues to farmers (donors of the germplasm)^⁴⁷ they define farmers’ rights narrowly. These legal instruments define farmers’ rights as rights arising from the past, present and future contribution of farmers in conserving, improving and making available PGR, particularly those in centres of origin/diversity.^⁴⁸ This description of the farmers’ right does not grant any positive rights to farmers over their intellectual assets, although Article 9.3 of the International Treaty recognizes the right of the farmer to save, use, exchange and sell farm-saved seeds subject to national laws of the country. It is important to note that the International Treaty allows member states to develop their own forms of protecting farmers’ rights.^⁴⁹

It is here that the notion of farmers’ rights can be understood in three ways: first, the narrow right arising from their past contributions and some basic rights such as rights to save, use, exchange or sell farm-saved seeds^⁵⁰;^⁵¹ second, the right to be compensated for providing the PGR used by the commercial breeder in developing new varieties (benefit sharing);^⁵² and, third, the positive right to protect and register their developed varieties and enjoy all the rights that accrue from such registration like a commercial plant breeder^⁵³.^⁵⁴

The PPVFR Act recognizes the right to benefit sharing and also the positive right of ownership of a farmer over the PGR and allows farmers to develop and register their own varieties^⁵⁵ that fulfill the criteria of NDUS or even the Distinctiveness, Uniformity and Stability^⁵⁶ criteria for registration as an extant variety.^⁵⁷ The definition of ‘‘breeder’’ in the PPVFR Act expressly includes farmers.^⁵⁸ Further, the Act defines farmer’s variety as a variety that has been traditionally cultivated and evolved by the farmers in their fields or is a wild relative or land race of a variety about which the farmers possess the common knowledge.^⁵⁹ Apart from registration as a farmer’s variety, the PPVFR Act also allows farmers to register their varieties under the category of extant varieties,^⁶⁰ which is another novel feature of the PPVFR Act that allows registration of already existing varieties. Extant variety means a variety available in India that is the farmer’s variety or a variety notified under section 5 of the Seeds Act 1966 or a variety about which there is common knowledge or any other variety in the public domain.^⁶¹ Hence, farmer’s variety can be registered separately and also under the category of extant varieties.

However, the criterion for registration of extant varieties is not clearly enunciated in the PPVFR Act. Section 15(2) provides that an extant variety shall be registered if it conforms to distinctiveness, uniformity and stability as specified under the regulations laid down by the Protection of Plant Variety and Farmer’s Rights Authority of India.^⁶² The novelty criterion is not mentioned for registering extant varieties. These regulations have been laid down in the Gazette notification issued by the Indian government on 7 December 2006.^⁶³ According to this Gazette notification, the plant authority has constituted an Extant Variety Registration Committee, which has been entrusted with the job of making recommendations for the registration of the extant variety of notified variety under the Seeds Act 1966.^⁶⁴ This Gazette notification also states that the DUS criteria for registration of extant varieties will differ from species to species and they shall be notified by the plant authority in the Gazette of India.^⁶⁵ The Extant Variety Registration Committee until now has recommended the DUS criteria for 18 crops, which have been notified by the plant authority.^⁶⁶ Because the registration of the extant variety does not require the fulfillment of the novelty criteria, the registration of such varieties is different from those for the newly developed varieties.

Notwithstanding the above-mentioned legal framework that allows for the registration of farmer’s variety through two possible options, some commentators have argued that the NDUS or DUS criterions (in case of the extant variety) used for commercial breeders may not be appropriate for the farmer’s variety because these criteria are more suited for modern scientific methods of breeding and laboratory-based research, which the majority of subsistence farmers, in a developing country like India, do not undertake.^⁶⁷ In fact, it has been argued that the criteria for registration in the PPVFR Act have been taken from UPOV, which was designed by developed countries for the protection of plant varieties developed by commercial breeders who have the capability to undertake modern and scientific-based research.^⁶⁸ In other words, the registration criterion, for registering farmer’s varieties, in the PPVFR Act has not been tailored to suit the practical situation that surrounds most of the farmers in India. Hence, although all relevant actors, i.e. commercial breeders, public research institutions and farmers, can register their varieties, in reality, only commercial plant breeders and public research institutions will be able to register their varieties because they have the capacity to undertake modern scientific breeding to fulfill the NDUS criteria or DUS criteria in case of registration of an extant variety. Farmers in India, unlike the commercial plant breeders, follow traditional and not modern breeding processes or laboratory-based research. Hence, varieties developed by farmers may not be able to fulfill the NDUS criteria or DUS criteria in case farmers wish to register their varieties as extant varieties. As a result, very few farmers’ varieties will benefit from the registration system provided in the PPVFR Act.^⁶⁹ Moreover, since registration of a new variety is the only way to get protection under the PPVFR Act for farmers, many varieties developed by farmers will not enjoy any protection.^⁷⁰

The PPVFR Act recognizes the rights of the farmers to save, use, sow, re-sow, exchange, share or sell their farm produce including seeds of a protected variety in the same manner as he or she was entitled before^⁷¹.^⁷² Although the previous draft of the plant variety legislation recognized the rights of the farmers over their crops, it did not recognize the rights of farmers over the seeds of the crops they grew. This led to huge protests and as a result of a strong campaign launched by the civil society the legislation finally recognized the right of the farmer to sell seed in the same manner as before. The importance of the farmer to sell seed is fundamental in a country like India, where the farming community provides more than 80% of the country’s annual requirements of seed.^⁷³ A farmer not having the right to sell seed implies that each time the farmer wishes to grow a new crop, he or she has to turn to the market to procure seeds. Such reliance on the market for seeds is not economically feasible for many poor farmers in India and hence will have livelihood repercussions. Further, if farmers do not have the right to sell seeds, it will weaken the overall seed market in India because there will be less competition for the private seed companies. Moreover, as pointed out earlier, control over seeds by the farmers is a crucial element in ensuring food security. It is important to point out that one commentator has argued that even the right of the farmer to sell seeds or control over seeds does not guarantee self-reliance in seeds for the farmers, especially in cases where the harvested material cannot be used as seed because some processing is required to convert the harvested material into seed.^⁷⁴ Hence, farmers will have to turn to the market in such cases. Notwithstanding this argument, the significance of farmers having control over seeds cannot be ruled out, especially in those circumstances where the harvested material can be used as a seed, without any kind of processing.

Essentially Derived Varieties^⁷⁵: The PPVFR Act provides for the registration of the essentially derived varieties. The protection of the EDVs in the PPVFR Act is borrowed from UPOV 1991. It is important to note that registration of EDVs is a novel feature present in UPOV 1991, not recognized under UPOV 1978. Article 14(5) of UPOV 1991 defines EDVs as varieties that are predominantly derived from an initial variety. Article 14(5) further states that while the derived variety retains the expression of the essential characteristics resulting from the combination of genotypes of the initial variety, it is clearly distinguishable from the initial variety and, except for the differences that arise as a result of the Act of derivation, conform to the initial variety in the expression of essential characteristics that result from the genotype or a combination of genotypes of the initial variety. EDVs can be protected, but the EDVs cannot be marketed without the permission of the plant breeder of the protected variety from which they were derived.^⁷⁶ The definition of EDVs in the PPVFR Act is taken directly from UPOV 1991. It has been argued that there is no need to protect EDVs under Indian conditions.^⁷⁷

Disclosure Requirement and Benefit Sharing: Another noticeable feature of the PPVFR Act is the provision of disclosure requirement, which puts the breeder under an obligation to disclose the information regarding the use of any genetic material conserved by any tribal or rural families that the breeder may be using in developing the new variety.^⁷⁸ Failure to disclose such information will result in the rejection of the registration application.^⁷⁹ A disclosure requirement prohibits misappropriation of the genetic resources, especially of the varieties that have been developed by the farming community. The Act also provides benefit-sharing provisions, whereby the commercial breeder has to share the benefits that will accrue upon the registration of the variety with the farmers or the traditional rural communities who have contributed towards developing the variety.^⁸⁰ The benefit-sharing provisions ensure that the contributions and efforts of the farming community in the newly developed varieties do not go unrewarded. However, the actual implementation of the benefit-sharing provisions may face practical difficulties.^⁸¹ These practical difficulties may arise because the provisions of the PPVFR Act that talk of inviting claims for benefit sharing after granting a certificate of registration^⁸² presuppose that the local community will be vigilant to apply for benefit sharing.^⁸³ This may be slightly difficult in a country like India due to the social, economic and educational conditions of the local traditional communities and farmers as these communities are often ignorant of such provisions. Hence, there is a possibility that the actual implementation of the benefit sharing provisions will face practical difficulties. In order to overcome these practical difficulties, it is important for the state to make the traditional societies aware of their rights. Increased awareness will result in better implementation of the benefit-sharing provisions of the PPVFR Act and also other provisions.

Grounds for Challenging Registration and Compulsory Licence: Another novel feature of the PPVFR Act is that it also provides grounds on which the registration of a plant variety can be challenged. The grounds on which such a challenge can be made are that the person opposing the application is entitled to the breeder’s right as against the applicant^⁸⁴ or that the variety is not registrable under the Act^⁸⁵ or other grounds where certificate of registration may not be in the public interest or may violate any environmental grounds.^⁸⁶ Further, the act allows for issuance of CL against a registered variety after 3 years of registration if the breeder fails to satisfy the reasonable requirements of the public for the seed or other propagating material or that the seed or propagating material has not been made available to the public at a reasonable price.^⁸⁷

Notwithstanding these important features of the PPVFR Act, an important critique of this Act is from the point of view of its overlap with another Indian law: the Biological Diversity Act, 2002^⁸⁸. Two overlaps can be pointed out. First, the subject matter of plant variety protection also falls under the purview of the BD Act because the definition of biological resources in the BD Act includes plants and parts thereof.^⁸⁹ Thus, plant varieties are not excluded from the BD Act, which can give rise to significant overlap with the PPVFR Act because the BD Act also deals with the commercial exploitation of biological resources and sharing of benefits arising out of use of such biological resources.^⁹⁰ Second, an overlap between the PPVFR Act and the BD Act can also arise on account of both the legislations having benefit-sharing provisions.

Another important issue, while discussing the salient features of the PPVFR Act, is to find out the possible effects of this law on private investment to boost the development of new plant varieties in India. Arguably, plant protection could boost research in plant biotechnology by both private and public bodies.^⁹¹ In a country like India, where major investment towards developing new plant varieties is undertaken by the public bodies, a regime that protects plant varieties could change this trend by boosting private investment, although most of the private investment, even after the PPVFR Act, may be in vegetables and other commercial crops where the commercial returns are high.^⁹² In the case of India, it is difficult to find out, at this early stage of the implementation of the PPVFR Act, how this legislation will impact private investment by the seed companies or more generally research investment towards developing new plant varieties. In this context, it is interesting to note that in India the private seed sector has grown despite a strong plant variety protection regime mainly due to liberal seed laws. It has been argued that a strong plant variety protection mechanism is not a necessary condition for the growth of the initial seed sector, but may play a role subsequently. In India, the seed sector, upto the late 1990s, was dominated by the public sector. However, things changed after the seeds policies of 1988 and 2002, and today there are many private seed companies that are doing active business in India.^⁹³

The seed sector in India has welcomed the PPVFR Act because this law can be used for the protection of its hybrid seeds and the seed sector also expects that the plant variety protection regime will bring a new policy that provides greater access to public germplasm. It is of interest to note that during the early days of deliberations on the PPVFR Bill, the seed industry in India was not happy with those provisions of the PPVFR Bill that gave rights to farmers to sell seeds, arguing that this would undermine the very purpose of having a legislation on plant variety protection. However, the seeds industry, later, softened its stand on farmers’ rights provisions in a process of accommodation and compromise, where industry understood that the concept of farmers’ rights as an alternative means of intellectual property protection reinforced their position on Intellectual Property Rights^⁹⁴ and enabled them to gain PBR rights in India. Before the PPVFR Act came into existence, India did not recognize PBR.

The issue related to enforceability of the PPVFR Act is also important. One of the major challenges that India will face, given its size and diversity, in properly enforcing the legislation, is in making poor and illiterate farmers realize their rights. The other enforceability-related issues may range from selecting appropriate sites for NDUS testing, developing administrative mechanisms to administer benefit sharing and ensuring that there are no infringements of the rights that flow from the protection of a plant variety.^⁹⁵ For the effective implementation of the PPVFR Act, the Protection of Plant Variety and Farmers’ Rights Authority of India has been constituted. The actual process of plant variety registration started only in 2007^⁹⁶ and therefore one will have to wait a while longer to find out how effective the plant variety authority has been in enforcing the legislation.

III International Union for the Protection of Plant Varieties and India

After discussing the salient features of the PPVFR Act, it is pertinent to examine it in light of India’s desire to join UPOV and the subsequent developments after that. Before one discusses the developments related to India’s desire to join UPOV, as a backdrop, it will be pertinent to outline the possible effect of UPOV membership on India. As it has been discussed above, neither of the two UPOV conventions contain effective farmers’ rights. What the UPOV conventions provide are narrow rights for the farmers, which can be described as a farmer’s privilege. Hence, if India were to become a member of UPOV, then it will not be able to maintain a strong farmer rights regime, which the PPVFR Act contains.^⁹⁷ In other words, the major implication for India, in becoming a member of UPOV, will be to model its plant variety law as per the UPOV convention. The Indian plant variety law contains many UPOV plus features, which India can have only by not becoming a member of UPOV. Becoming a member of UPOV will imply that all the UPOV plus features, which suit India’s interest, will have to be abrogated. Some may argue that joining UPOV will enable India to develop a plant variety protection model to boost the growth and development of new plant varieties and hence UPOV membership will bring benefits. This is not true, as UPOV membership is not required to develop an incentive regime in the form of providing protection to plant varieties in order to boost the development of new plant varieties.^⁹⁸ A country can develop a plant variety protection regime even by not becoming a member of UPOV, as India has shown. In fact, developing a plant variety regime by not being in UPOV is much more advantageous for countries because it allows them to develop their plant variety laws in such a fashion that they take into account not just the interests of the plant breeders but also the interests of other stakeholders such as farmers and researchers by limiting the rights of the plant breeders.

Coming back to the developments related to India’s UPOV membership issue, on 22 April 1998, India informed UPOV that it wanted to accede to the UPOV 1978 convention. As per Article 32(1)(b) of the UPOV 1978 Convention, India was required to deposit an instrument of accession, which, in turn, as per Article 32(3), can be deposited only if the state in question (in this case India) has requested the advice of the council on the conformity of its laws with the 1978 UPOV convention and the decision embodying the advice is positive.^⁹⁹ A couple of days after India’s information to accede to the 1978 Convention, on 24 April 1998 the 1991 Convention came into force. Article 37(3) of the 1991 Convention states has no instrument of accession to the 1978 Convention may be deposited after the coming into force of the 1991 Convention. However, the UPOV Council authorized the Secretary General to accept the instrument of accession from India, provided India moved expeditiously to complete its legislation (legislation to give effect to protection of plant varieties) and other related formalities.^¹⁰⁰ In order to fulfill the UPOV membership condition, India brought the draft Plant Variety Bill, which was compatible with the UPOV 1978 Convention, providing strong PBR and recognizing a narrow farmers’ right that did not give the right to the farmers over the seeds of their produce.^¹⁰¹ Some have also argued that the original bill was based on the UPOV 1991 convention.^¹⁰² However, it is important to note that in the introductory statement of the bill, the reason for introducing the bill was to fulfill the TRIPS Agreement obligations and UPOV was not mentioned. The reason for this could be that the obligation imposed by the TRIPS Agreement was well known and, along with fulfilling this obligation, the government of the day also wanted to satisfy the requirement to join UPOV. Therefore, not mentioning UPOV as a reason for the draft Plant Variety Bill should not be construed as UPOV not being a factor behind bringing the original bill. Since the original bill was modelled on the UPOV 1978 Convention and was brought after UPOV asked India to enact a legislation to protect plant varieties, joining UPOV was an implicit factor behind the Bill. As noted earlier, this Bill could not be passed until it was amended to include a detailed chapter on farmers’ rights.

After the passage of the PPVFR Act by the Indian Parliament, in 2002, the Indian government of the day reinitiated the previous application to join UPOV. Subsequent to this, in June 2002, India requested UPOV to examine whether the PPVFR Act was in conformity with the 1978 Convention.^¹⁰³ The consultative committee of UPOV made a preliminary examination of India’s legislation in October 2002 and this gave rise to a number of questions that are currently being considered by India.^¹⁰⁴ This research paper will attempt to probe this issue based on the evidence available and the subsequent developments after India made its second application to UPOV in 2002. Before analysing these issues, there is an important point worth mentioning. The latest communication from the UPOV Secretariat reveals that the UPOV consultative committee is still considering India’s member ship issue, which, in turn, implies that India is still interested in becoming a member of UPOV, notwithstanding the fact that the Indian government is maintaining a studied silence on this issue. Further and more direct evidence of India being considered for UPOV membership comes from UPOV itself. In a document of 2007, available on the UPOV website that provides the names of countries that are members of UPOV, India’s name figures in the list of countries that are not yet members of UPOV but have initiated the procedure and submitted an application to the UPOV Council to become members of the union.^¹⁰⁵ The list on the UPOV website of the countries that are members of UPOV and the communication from the UPOV Secretariat show that India has not withdrawn its UPOV membership application even after the notification of the PPVFR Act.

In this context, it is also important to state that the Indian government delayed the notification of the PPVFR Act (until the act is notified by the central government in India it is not enforceable, even if it has been passed by the Indian Parliament). The Act was notified by the Indian government partly in 2005, by bringing sections 2–13 (both inclusive) and sections 95–97 (both inclusive) in force.^¹⁰⁶ This notification created the plant variety authority of India. Further, the plant variety authority of India laid down the regulations related to the registration of the plant varieties on 7 December 2006.^¹⁰⁷ The actual process of plant variety registration was launched on 20 February 2007.^¹⁰⁸ Therefore, the PPVFR Act became fully operational only in 2007, although it was passed by the Indian Parliament in 2001. Why did the Indian government take so much time in notifying the PPVFR Act? Was this in any way related to the UPOV membership issue and the objection raised by UPOV after the preliminary assessment of the PPVFR Act? Again, no one answer is available. However, in this context, it is important to point out, as one author has done, that many laws that were passed by the Indian Parliament after the passage of the PPVFR Act, were notified before the PPVFR Act. This suggests that the delay in the notification of the PPVFR Act and the preliminary objection raised by UPOV about the Act are not completely divorced from each other, especially when efforts are afoot to take India to UPOV.^¹⁰⁹

According to this discussion, there are four points worth mentioning. First, there is no international obligation on India to join UPOV. Second, it is difficult to explain why India decided to go forward with its UPOV membership application after having passed the PPVFR Act in a form that was quite different from the original draft and went beyond the UPOV 1978 Convention. Third, it is not clear whether the compatibility of India’s legislation is being considered by UPOV under the 1978 Convention or the 1991 Convention. Fourth, UPOV is not satisfied with the PPVFR Act because a preliminary examination of India’s legislation has given rise to a number of questions, which are being considered by India but that are not in the public domain. This gives rise to two questions. First, because the PPVFR Act goes much beyond the UPOV 1991 Convention and, in fact, also beyond the 1978 Convention and hence undermines the kind of plant breeders’ right regime that UPOV represents, how will India ensure that the rights of the plant breeders are protected in the manner in which UPOV protects them? Second, from UPOV’s perspective, is it possible for India to become a member of UPOV with the present PPVFR Act?.

In understanding the first question posed above, it is important to understand the differences between the PPVFR Act and the two UPOV conventions. The PPVFR Act establishes a regime quite different from the two UPOV conventions and hence India cannot provide UPOV-type protection to plant breeders under the PPVFR Act. Some differences between the Indian PPVFR Act and both the UPOV Conventions are explained here briefly.

First, allowing for the registration of extant varieties, which do not require the fulfilment of the novelty criteria, is a UPOV plus feature as neither the 1978 Convention nor the 1991 Convention of UPOV allows for the registration of a plant variety that does not fulfill the novelty criteria. Article 5 of UPOV Convention, 1991, states that a breeders’ right shall be granted where the variety is new, distinct, uniform and stable.^¹¹⁰ Article 5(2) states that the grant of a breeders’ right shall not be subject to any further or different conditions. In other words, a breeder cannot get a plant breeders’ right over a variety that is not novel.

Second, the chapter on farmers’ rights in the PPVFR Act goes beyond the narrow farmers’ rights recognized as a farmers’ privilege in UPOV 1978 and also in UPOV 1991 as pointed out earlier. In fact, UPOV 1991 has made farmers’ privilege optional. Article 17(1) of UPOV 1991, states that contracting parties may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeders’ right in relation to any variety in order to permit farmers use for propagating purposes. Both the conventions of UPOV do not recognize any other right such as the right of the farmers to develop and register their varieties or the right of the farmers to have control over the seeds of their harvest.

Third, the PPVFR Act allows the issuance of CL, which is also a UPOV plus feature. The issuance of CL is not mentioned in UPOV 1991 as such,^¹¹¹ although Article 17(2) of UPOV 1991 states that when any restriction is imposed on the free exercise of the breeders’ rights by authorizing a third party, the contracting party shall take all measures necessary to ensure that the breeder receives an equitable remuneration. One may argue that Article 17(2) allows for issuance of CL by making reference to the words ‘‘authorizing a third party’’ to perform any act for which the breeder’s authorization is required. However, the core difference is in explicit recognition in issuing CL in the PPVFR Act, while it is missing in both the conventions of UPOV. Also, another difference is that the PPVFR Act recognizes grounds on which the CL could be issued such as public policy, whereas no such grounds are mentioned in UPOV 1991.

Fourth, the key difference is that while the PPVFR Act imposes a disclosure requirement on the plant breeder and also the obligation to share the benefits, on the other hand, neither of the UPOV conventions imposes any such obligation on the plant breeder.

These differences show that for India to become a member of UPOV (either 1978 or the 1991 Convention), it needs to amend its legislation to make it compatible with the UPOV conventions. However, amending the plant variety legislation for India may not be politically feasible now. As pointed out earlier, India’s original Plant Variety Protection Bill was modelled on the UPOV Convention, which attracted huge protests from farmers and the civil society organizations. These protests led to the incorporation of the chapter on farmers’ rights into the PPVFR Act. Undoing this chapter will be politically difficult for any government in India. India’s membership of UPOV will be accepted only if the PPVFR Act is redrafted and the strong farmers’ right chapter is diluted. This dilution can take place either by a direct amendment of the PPVFR Act, which is not easy or indirectly through the back door by developing an alternative legal regime that indirectly mitigates farmers’ rights and other beneficial provisions in the PPVFR Act and moves towards strong PBR.

The second question posed above is an important issue from UPOV’s perspective. If UPOV accepts India’s membership application with the kind of PPVFR Act it has, it will set a precedent for many other developing countries, who are members of UPOV or may want to become members in future and hence are mandated to recognize predominantly the rights of plant breeders in a plant variety protection regime and not the rights of the farming community, to incorporate positive farmers’ rights and other beneficial provisions such as benefit sharing and disclosure requirement in their respective plant variety laws. This will not be an apposite situation from UPOV’s perspective because it will undermine the kind of PBR regime that UPOV wishes to establish, protect and promote^¹¹².^¹¹³ As discussed above, the various Acts of UPOV emphasize strong PBR with no or limited rights for the farming community. In other words, India may not mind if UPOV accepts India’s membership application with the kind of farmers’ rights that it has. However, this will not be possible for UPOV for the reasons discussed above.

Therefore, it is evident from the above discussion that India cannot become a member of UPOV with the present PPVFR Act. The only way India can become a member of UPOV is by changing its present legal regime and establishing a regime that is in consonance with the UPOV system.

IV New Seeds Bill, 2004 and Its impact upon the Protection of Plant Varieties

After having understood the salient features of the PPVFR Act, their UPOV plus features and India’s UPOV membership application, we now turn to examine the significance of the new Seeds Bill in India in light of the PPVFR Act and India’s UPOV membership application. In 2004, the Indian government brought a bill for regulating the quality of seeds for sale, import and export and to facilitate the production and supply of seeds.^¹¹⁴ The Seeds Bill, if analysed in isolation at the micro level, is concerned with the regulation, production and supply of seeds and is not a law on PBR. However, a careful examination of the Seeds Bill reveals that in the name of regulating the quality of seeds, the bill actually introduces provisions that either conflict with the PPVFR Act or reduce its efficacy by jeopardizing the rights given to farmers under the PPVFR Act. Because the bill directly affects the PPVFR Act, it has a direct link with the UPOV membership issue, notwithstanding the fact that it is not a law per se on protecting plant varieties. The features of the Seeds Bill that undermine or conflict with the PPVFR Act raise the issue of indirectly diluting the PPVFR Act and establishing a legal regime based on the UPOV model. Hence, the Seeds Bill needs to be understood in the broader perspective and in light of the PPVFR Act and India’s desire to join UPOV. However, before one discusses these features of the Seeds Bill, it is important to point out that the Indian government constituted a Parliamentary Standing Committee on Agriculture^¹¹⁵ to look into various aspects of the Seeds Bill. This Committee made its report public in October 2006.^¹¹⁶ The report of the Committee has been submitted to the Indian Parliament.^¹¹⁷ However, discussion on this report, and whether the Seeds Bill needs to be revisited in light of the recommendations made by the Committee, is yet to take place in the Indian Parliament. In other words, the discussion on the Seeds Bill is pending in the Parliament^¹¹⁸ and there is no change in the status of the Seeds Bill from the time when the bill was first introduced in the Indian Parliament. It is also not clear when the discussion on the Committee report and the Seeds Bill will take place in the Indian Parliament.^¹¹⁹ However, because the status of the Seeds Bill has not changed and because the bill is still available on the website of the Agriculture Ministry of India,^¹²⁰ which is the nodal executive organ in India for matters related to the Seeds Bill, discussions will be taken up in the future when the Parliament deliberates on the issues raised by the Committee. Therefore, it is extremely pertinent and timely to analyse the features of the Seeds Bill both in light of the PPVFR Act and the UPOV membership issue.

One of the insidious provisions of the Seeds Bill is the mandatory registration of all the seeds. Clause 13 of the Seeds Bill states ‘‘no seed of any kind or variety shall, for the purpose of sowing or planting by any group, be sold unless such seed is registered’’. This is a sweeping provision not recognizing any exception and covers even the farmer varieties because the definition of the term ‘‘variety’’, occurring in clause 13, includes farmer’s variety.^¹²¹ Hence, farmer’s varieties of seeds held by farmers cannot be sold or bartered unless they are registered.^¹²² Such mandatory registration of farmer’s varieties, as against the voluntary registration option in the PPVFR Act,^¹²³ obstructs the ability of the farmer to sell or barter seeds because many illiterate and poor farmers in India will not be aware of the complexities associated with the registration procedure. Further, by requiring mandatory registration of all seeds, the Seeds Bill ignores the fact that varieties developed by traditional breeding do not pose a threat to environmental safety unlike the seeds developed through genetic engineering.^¹²⁴ Therefore, there is no rationale to treat farmer’s varieties of seeds on par with other varieties of seeds and make it mandatory for farmers to register their varieties. Such a mandatory registration of all seeds including farmer’s varieties will directly affect farmers’ rights recognized in the PPVFR Act because farmers will not be able to sell their seeds until they are registered and hence will turn to the market each time they need seeds for sowing.

The Committee has also expressed its concern regarding the mandatory registration of the farmer’s varieties.^¹²⁵ The Committee has recommended that clause 13 should make it clear that farmer’s varieties are excluded from registration. Again, clause 22 of the Seeds Bill states: every person who desires to carry on the business of selling, keeping for sale, offering to sell, bartering, import or export or otherwise supply any seed by himself or by any other person on his behalf shall obtain a registration certificate as a dealer in seeds from the state government. ‘‘Dealer’’ has been defined as a person who carries on the business of buying and selling, exporting or importing seed and includes an agent of a dealer.^¹²⁶ This definition of a dealer opens the question of whether a farmer is a dealer. The definition of a dealer does not answer the question because it does not exclude farmers from the definition of a dealer. A clue is given in the definition of farmer in the bill, in clause 2(9), which states that a farmer means ‘‘a person who cultivates crops either by cultivating the land himself or through any other person but does not include any individual company trader or dealer who engages in the procurement and sale of seeds on a commercial basis’’. On the basis of the definition of a ‘‘farmer’’ it can argued that because the definition explicitly excludes a dealer, a dealer is not a farmer and clause 22 applies only to seed dealers and not to farmers.

However, such an interpretation is problematic because clause 22 starts with the words ‘‘Every person’’ without providing any exception. Moreover, the clause does not explicitly state that it applies only to dealers. It states that persons who are carrying on the business of selling, and bartering of seeds should obtain a registration certificate as a dealer. Thus, if farmers are also involved in the business of seed selling, and bartering, although it may not be like an organized business activity on a large commercial scale, they will have to obtain the certificate of registration. In other words, this clause also applies to farmers. This clause, read with clause 13, imposes a double obstacle for farmers to sell their varieties because they not only have to register their varieties but also obtain the registration certificate as seed dealers before selling or bartering their seeds.

The proponents of the bill may argue that the proposed legislation is not taking away the right of the farmers to sell or exchange seeds because clause 43 of the bill safeguards that right. Clause 43 states that nothing in the Act shall restrict the right of the farmer to save, use, exchange, share or sell his farm seeds or planting material. This clause may appear to be protective of the rights of the farmers. However, this provision is in conflict with clause 22, that requires ‘‘Every person’’ to obtain the registration certificate before selling or marketing seeds, without recognizing any exceptions. Further, the primary reason for conflict between clauses 22 and 43 is the presence of the word ‘‘barter’’, whose dictionary meaning is also ‘‘exchange’’, in the former clause.^¹²⁷ As the provisions stand in the present bill, for exchanging seeds, the farmer does not need registration,^¹²⁸ but will need registration if he or she wants to barter the seeds.^¹²⁹ This is an ambiguous situation because as pointed out above ‘‘barter’’ also means ‘‘exchange’’. The committee has recognized this problem and hence has recommended that the word ‘‘barter’’ should be added in clause 43 so that clause 43 will read as ‘‘nothing in the Act shall restrict the right of the farmer to save, use, exchange, barter, share or sell his farm produce and planting material . . .’’.^¹³⁰

The other onerous obligation imposed on the farmer by clause 43 that dilutes the safeguarding provision is the requirement to sell seeds that conform to the minimum limit of germination, physical purity and genetic purity. This is an onerous obligation when understood in the context in which most farmers operate in India. As mentioned earlier, as many farmers are poor and illiterate, they do not possess the technical information related to genetic purity and the minimum limit of germination of a seed. Therefore, it will be difficult for the farmers to find out whether their seeds satisfy these requirements or not. In fact, the Committee has also stated that most of the farmers in India will not follow these scientific and technical terms and hence may not conform to these standards while selling or bartering their seeds.^¹³¹ Mandatory imposition of such onerous obligations indirectly restricts the right of farmers to sell or barter seeds. Recognizing this, the Committee has recommended that this requirement should be deleted.^¹³²

One of the important provisions of the PPVFR Act that gives strength to farmers’ rights is the disclosure requirement, whereby the breeder, in the registration application, has to give information about the passport data of the parental lines from which the variety has been derived, along with the geographical area in India, which is the source of the genetic material.^¹³³ However, the Seeds Bill does not have a disclosure requirement to either disclose the passport data or the geographical area, which is the source of the genetic material. This, in turn, implies three things that will severely undermine farmers’ rights given in the PPVFR Act. First, it will encourage the misappropriation of genetic resources. Commercial breeders could register farmer’s varieties as their varieties under the Seeds Bill without going through the PPVFR Act, as under the Seeds Bill they do not need to disclose the source of origin. Second, no benefit sharing will take place because it will not be known from where the commercial breeder has taken the genetic resource used in developing its varieties. Absence of a disclosure requirement may result in the commercial breeders using a farmer’s variety in developing a new variety without paying anything to them.^¹³⁴ Third, as there is no requirement to disclose information about the parental line, the breeder will have exclusive information about the parental lines. This information can be used by the breeder as a trade secret to enjoy market monopoly.^¹³⁵

Further, the Seeds Bill does not provide any criteria for registration, unlike the PPVFR Act that requires the NDUS criteria. Hence, any variety could be registered. Also, the Seeds Bill does not have a CL provision. In other words, under the Seeds Bill, unlike the PPVFR Act, subsequent to registration, the state has no power to issue a CL even if the reasonable requirements of the public for seed or other propagating material are not being satisfied. The argument here could be that the Seeds Bill is not an IPR law; therefore, it does not have a CL provision. However, the real substance and character of the Seeds Bill is that it impacts IPR laws like the PPVFR Act. Therefore, not being an IPR law cannot be an argument in favour of not having a CL provision. A CL provision gives the policy space to countries to pursue or protect any public interest as and when the situation may arise. The Seeds Bill, if passed in its present form, will imply that even in cases where a seed is not available to the general public at reasonable prices, a CL cannot be issued. The issuing of CL is also convoluted because no information about parental lines is disclosed at the time of registration, which means that the registering authorities do not have the knowledge needed to produce the same seeds. The commercial breeder could use this knowledge as a trade secret to enjoy market exclusivity.^¹³⁶

A final point in this analysis is that if a conflict arises between the new seeds law^¹³⁷ and the PPVFR Act, there is nothing to suggest that the Seeds Bill will trump over the PPVFR Act. In other words, in case of a conflict, depending on the interpretative techniques adopted by the courts, even the PPVFR Act can trump the new seeds law. However, notwithstanding this interpretative legal jugglery that the courts may perform to decide which provision of which act will prevail in case of conflict, existence of two conflicting statues will create confusion about the rights and obligations of different actors involved in the process of plant variety protection. Such a conflict may give rise to conflict claims and counter-claims, eventually leading to disputes. Therefore, it is important for the Indian Parliament to clarify the law rather than to leave it to the courts to interpret and determine the rights and obligations of the actors involved.

V Conclusion

India successfully explored the sui generis option available in Article 27.3(b) of the TRIPS Agreement and developed its own plant variety protection legislation that fulfills the rights of both farmers and commercial breeders. The PPVFR Act has many novel features such as positive farmers’ rights; disclosure requirement; benefit sharing and prior informed consent; and the possibility to issue CL in the public interest. Many of these features go beyond both UPOV 1978 and UPOV 1991. However, one of the retrogressive steps adopted by India has been to make an application to join the UPOV, which it is not required to do under any of its international obligations. The first application was made in 1998, i.e. before the PPVFR Act was passed in the Parliament. Later, this application was re-energized in 2002 by submitting the PPVFR Act to UPOV, which gave rise to some important issues such as how will the rights of the plant breeders, in the manner in which they are protected in UPOV, be protected in India which has a PPVFR-type legislation. The research paper has discussed that India has not withdrawn its application and that UPOV is still considering the application made by India in 2002 to join UPOV. In light of these issues, the research paper has attempted to show that the Seeds Bill, if passed in the present form, will create a legal regime that will be consistent with the UPOV model of plant variety protection. If the Seeds Bill is passed in the present form, it will indirectly bring back the previous draft bill of the plant variety legislation that contained narrow farmers’ rights and was modelled on the basis of the UPOV 1978 Convention and will also pave the way for India’s UPOV membership because the legal regime, in India, at the macro level, will be UPOV consistent. The Seeds Bill, if passed in its present form, will mean that a commercial plant breeder can get the varieties registered under the seeds law and not bother about the PPVFR Act because there is no requirement in the Seeds Bill regarding the NDUS criteria, no requirement to disclose passport data or share benefits, and also no grounds of challenging the registration or issuing a CL. This will virtually grant monopoly rights to the plant breeder without any rights or benefits accruing to the farming community. Further, even if India does not become a member of UPOV, the passing of the Seeds Bill will ensure, de facto, that India has a plant variety protection regime that is tailored as per the UPOV model. In other words, India, after becoming a member of UPOV, may retain the farmer rights provisions in the PPVFR Act, but its actual implementation will become difficult due to the new seeds law. In order to prohibit such a situation from arising, the Seeds Bill needs to be amended as per the suggestions made by the Committee so that it is compatible with the PPVFR Act. The Indian Parliament should deliberate upon these issues as and when the Seeds Bill and the Committee report come up for discussion. This should be followed by the withdrawal of the membership application from UPOV.

BIBLIOGRAPHY

I List of Books:

B.L. Wadera, Law relating to Patents, Trademarks, Copyright, Designs & Geographical Indications (Universal Law Publising Co Ltd, New Delhi, 2^nd edn., 1999).
Correa, C., Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement 294 (Oxford University Press, Oxford, 2007).
Daniel Gervais, TRIPS Agreement, The Drafting History and Analysis (Sweet & Maxwell, London, 3^rd edn., 2008)
David Bainbridge, Intellectual Property Rights (Pearson Education Limited, Delhi, 5^th edn., 2002).
Elizabeth Verkey, Law of Plant Varieties Protection (Eastern Books Agency, Lucknow, 2007)
Indian Law Institute, Intellectual Property Rights: A Global Vision (Indian Law Institute, New Delhi, 2004)
J.K. Das, Intellectual Property Rights (Kamal Law House, Kolkatta, 2008).
Paul Torremans and Holyoak, Intellectual Property Law (Oxford University Press, New York, 4^th edn., 2005).
Philippe Cullet, Intellectual Property Protection and Sustainable Development 227( Lexis Nexis Butterworths, New Delhi, 2005).
W.R. Cornish, Intellectual Property: Patents, Copy right, Trademarks and Allied Rights (Sweet and Maxwell, London, 3^rd edn., 1996).

II List of Articles:

Gopalakrishnan, N. S. “An Effective Sui Generis Law to Protect Plant Varieties and Farmer’s Rights in India: A Critique”, 4(1) Journal of World Intellectual Property 165, (2001).
Khera, Harpal Kaur, “Patents and Sui Generis System for Protection of Plant Varieties: A Threat to Food Security and Health Care”, 115-30 Vol. 8(1-2), M.D.U. Law Journal, (2003)
Khera, Harpal Kaur, “Registration of Plant Varieties in India: Life and Effect of Protection”, J281-88, Vol.91, All India Reporter, (2004) (Sep)
K.M. Gopakumar and Sanjeev Saxena, “Seeds Bill 2004: For Whom?”, 47 Journal of Indian Law Institute 490, (2005).
Kochhar, Sudir, “System Perspective for IPR Protection in the Plant Kingdom”, 51-56, Vol.13(1), Journal of Intellectual Property Rights, (2008) (Jan).
Lalitha, N, “Intellectual Property Protection for Plant Varieties: Issues in Focus”, 1971-27 Vol.39 (19), Economic and Political Weekly, (2004)
Nanda, Sukanta K, “Protection of Plant Varieties in India” 101-6, Vol.92 Cuttact Law Times (2001)
Philippe Cullet, “Seeds Regulation, Food Security and Sustainable Development”, 40(32) Economic and Political Weekly 3607–13(2005).
Raina, R.K. “Commercial Transfer Agreements of New Plant Varieties and Materials thereof”, 123-9, Vol.8(2), Journal of Intellectual Property Rights, (2003) (Mar.)
Rao C. Niranjan, “Indian Seed System and Plant Varieties Protection”, 845-52, Vol.39(8) Economic and Political Weekly, (2004) (Feb)
Sahai Suman, “Protection of Plant Varieties: UPOV should not be Our Model” 2788-9, Economic and Political Weekly, (1996)
Sahai Suman “Protection of New Plant Varieties: A Developing Country Alternative” 579-80, Vol.34, Economic and Political Weekly, (1999)
Singh, Rajnish Kumar, “Protection of Farmer’s Rights under the Plant Varieties Protection Regime: National and International Perspective”, 133-49, Vol.9, National Capital Law Journal, (2004)
Swaminathan, M.S. “Protection of Plant Varieties and Farmers Rights Act: From Legislaion to Implementation” 324-9, Vol.7 (4) Journal of Intellectual Property Rights, (2002) (July)

III List of Statutes:

The Indian Patent Act, 1970.
The New Seed Bill, 2004.
The Patents Act, 1977 (U.K.).
The Protection of Plant Varieties and Farmers’ Rights Act, 2001.
The Seeds Act, 1966.

The Seeds Act, 1964. (U.K.)

IV List of International Conventions:

The Agreement on Trade related aspect of Intellectual Property, 1996.

The International Union for the Protection of Plant Varieties (UPOV), 1991.

V List of Websites:

1 Hereinafter ‘TRIPS Agreement’.

2 Hereinafter ‘WTO’.

3 Dr. Harpal Kaur Khera, “Patents and sui generis system for protection of plant varieties: a threat to food security and health care”, 8(1-2) M.D.U. Law Journal 115-30, (2003).

4 Ibid.

5 Hereinafter ‘PGR’.

6 Elizabeth Verkey, Law of Plant varieties protection 5 (Eastern Books Agency, Lucknow, 2007).

7 Hereinafter ‘PPVFR Act’.

8 Supra note 6.

9 Which is presently a bill and is yet to be passed by the Indian Parliament.

10 Hereinafter ‘UPOV’.

11 Hereinafter ‘PBR’.

12 Supra note 6, at 11.

13 Ibid.

14 Correa, C., Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement 294 (Oxford University Press, Oxford, 2007).

15 Ibid.

16 Hereinafter ‘OECD’.

17 Philippe Cullet, Intellectual Property Protection and Sustainable Development 227( Lexis Nexis Butterworths, New Delhi, 2005).

18 Mission Statement of UPOV. available at: http://www.upov.int/en/about/mission.htmli (visited on February 23, 2010)

19 Introductory statement to the Seeds Bill, 2004.

20 Press Information Bureau, Government of India, Press Release, 3 May 2005.

available at: hhttp://pib.nic.in/release/release.asp?relid=8963i. (visited on February 23, 2010)

21 Sahai Suman, “Protection of plant varieties: UPOV should not be our model” 2788, Economic and Political Weekly, (1996)

22 Supra note 6, at 15.

23 Conventions which are1978 or the 1991.

24 Members of UPOV (as of 16 June 2009). available at: hhttp://www.upov.int/en/

about/members/pdf/pub423.pdfi. (visited on March 05, 2010).

25 Ibid.

26 Supra note 21, at 2789.

27 Ibid.

28 This argument was made by the UPOV Secretariat itself and also by major associations of plant breeders.

29 Supra note 14, at 247.

30 Ibid.

31 Id., at 252.

32 Id., at 254.

33 Sahai Suman “Protection of new plant varieties: A developing country alternative” 579-80, Vol.34, Economic and Political Weekly, (1999)

34 Ibid.

35 The first sentence of the preamble of the PPVFR Act,2001.

36 Hereinafter ‘NDUS’.

37 Hereinafter ‘CL’.

38 See The PPVFR Act, 2001, s. 15(1).

39 For other conditions see Id., s. 15(3)(a).

40 Id., s. 15(3)(b).

41 Id., s. 15(3)(c).

42 Id., s. 15(3)(d).

43 Id., s. 28(1).

44 Hereinafter ‘FAO’.

45 Resolution 5/89, Adopted at the 25th Session of the FAO Conference-Rome 198 . available at: hftp://ftp.fao.org/ag/cgrfa/Res/C5-89E.pdfi. (visited on March 05, 2010).

46 Hereinafter ‘International Treaty’.

47 Supra note 14, at 294.

48 Supra note. 18, Article 9 of the International Treaty.

49 Id., Art. 9.2.

50 Id., Art. 9.3.

51 Supra note 14, at 237.

52 Supra note. 18, Article 10.2 and Article 8(j) of the Convention on Biological Diversity, 1992 provides for benefit sharing.

53 Supra note 14, at 294

54 This positive right is also argued as an intellectual property right (IPR).

55 Hereinafter ‘farmer’s variety’.

56 Hereinafter ‘DUS’.

57 Supra note 38, ss. 39.1(i), 14 and 15(1).

58 Id., s. 2(c).

59 Id., s. 2(l).

60 Id., s. 8(2)(a).

61 Id., s. 2(j).

62 Hereinafter ‘Plant Authority’.

63 Gazette of India notification, dated 7 December 2006, of Ministry of Agriculture, Government of India. available at: hhttp://plantauthority.gov.in/PDFile/ Indgazette.pdfi. (visited on March 05, 2010).

64 See section 6 of chapter III of the Gazette of India notification, dated 7 December 2006,of Ministry Agriculture, Government of India. available at: hhttp://plantauthority.gov.in/PDFile/Indgazette.pdfi. (visited on March 05, 2010).

65 Ibid.

66 See Crop Guidelines issued by the Plant Authority. available at: hhttp://plantauthority.gov.in/cropguide.htmi.

67 Gopalakrishnan, N. S. “An Effective Sui Generis Law to Protect Plant Varieties and Farmer’s Rights in India: A Critique”, 4(1) Journal of World Intellectual Property 165, (2001).

68 Supra note 14, at 277.

69 Ibid.

70 Supra note 33.

71 N. Lalitha, “Intellectual Property Protection for Plant Varieties: Issues in Focus”, 39(19) Economic and Political Weekly 1922, (2004).

72 Supra note 38, s. 39(1)(iv).

73 C. Niranjan Rao, “Indian Seed System and Plant Variety Protection”, 39(8) Economic and Political Weekly 845–52 (2004).

74 Supra note 51.

75 Hereinafter ‘EDVs’.

76 Supra note 12, at 229.

77 Supra note 67, at 161.

78 Supra note. 38, s. 40(1).

79 Id., s. 40(2).

80 Id., ss. 24(2) and 26.

81 Supra note 67, at 166.

82 Supra note. 38, s. 26(1).

83 Supra note 67.

84 Supra note 38, s. 21(3)(a).

85 Id., s. 21(3)(b).

86 Id., s. 21(3)(c).

87 Id., s. 47(1).

88 Hereinafter ‘BD Act’.

89 See Biological Diversity Act, 2002, s. 2(c).

90 Supra note 14, at 289.

91 Supra note 71, at 1925.

92 Ibid.

93 Seed Industry in India - Poised for a Leap. available at: hhttp://www.new-

agri.co.uk/01-2/focuson/focuson6.htmli (visited on March 05, 2010).

94 Hereinafter ‘IPR’.

95 Supra note 73, at 847.

96 See The notification of the PPVFR Act, 2001.

97 Supra note 21, at 2788.

98 Ibid.

99 Supra note 67, at 168.

100 Ibid.

101 Supra note 33.

102 Supra note 67, at 158.

103 Ibid.

104 Ibid.

105 International Union for the Protection of New Varieties of Plants, What it is, What it Does, UPOV Publication No. 437 (E). available at: http://www.upov.int/en/ about/pdf/pub437.pdfi. (visited on March 18, 2010).

106 The Gazette of India, Regd. No. DL-33004/99, 11 November 2005, available at:

http://plantauthority.gov.in/PDFile/gazette.pdfi. (visited on March 05, 2010)

107 The Gazette of India, Ministry of Agriculture, 7 December 2006, available at:

http://plantauthority.gov.in/PDFile/Indgazette.pdfi. (visited on March 05, 2010).

108 Annual Report 2006–07 of the Plant Authority of India, available at: http://

plantauthority.gov.in/PDFile/AnnualReport_2006-07.pdf. (visited on March 18, 2010).

109 Supra note 67.

110 Also see, UPOV Convention, 1978, Art. 6.

111 Supra note 71, at 1923.

112 Supra note 14, at 273.

113 See the Introductory Statement on the UPOV website, which clearly states that the UPOV Convention has been developed with the aim of encouraging breeders to develop new plant varieties,

available at: http://www.upov.int/en/about/introduction.htmi. (visited on March 18, 2010)

114 Introductory Statement to the Seeds Bill 2004.

115 Hereinafter ‘the Committee’.

116 The report of the Parliamentary Committee is available at: hhttp://164.100.24.208/ is/committeeR/Agriculture/22ndreport.pdfi. (visited on March 19, 2010).

117 PRS Legislative search, Seeds Bill 2004, available at: http://www.prsindia.org/

legis_page.php?bill_id=26i. (visited on March 19, 2010).

118 Ibid.

119 The website of the Indian Parliament contains no information regarding when the discussions on the report of the Committee and the Seeds Bill will take place.

120 Ministry of Agriculture, Seeds Bill 2004, available at: http://agricoop.nic.in/

seeds/seeds_bill.htm. (visited on March 18, 2010).

121 See Seeds Bill, 2004, Clause 2(29).

122 K.M. Gopakumar and Sanjeev Saxena, “Seeds Bill 2004: For Whom?”, 47 Journal of Indian Law Institute 490, (2005).

123 Supra note 38, s. 14.

124 Ibid.

125 Committee Report, paragraphs 28 and 29.

126 Supra note 121, Clause 2(7).

127 Philippe Cullet, “Seeds Regulation, Food Security and Sustainable Development”, 40(32) Economic and Political Weekly 3607–13(2005).

128 Supra note 121, Clause 43.

129 Id., Clause 22.

130 Committee Report, para, 83.

131 Id., para, 84.

132 Ibid.

133 Supra note 38, s. 18(e).

134 Supra note 130, para,42.

135 Supra note 122, at 493.

136 Ibid.

137 In case the Seeds Bill is passed in the present form by the Indian Parliament.

Is Prostitute A Criminal Or Victim?

Sun, 20 May 2012 07:26:35 +0530

A person, usually a women who engages in sexual intercourse for

A person, usually a women who engages in sexual intercourse for money; a women who offers her body to indiscriminate sexual intercourse, especially for hire, is known as prostitute.

Prostitution is one of the oldest professions. It is flesh trade, now developed into a crime; that crime has further developed into an organised crime; and that organized crime has become an internationally flourishing businesses. This illicit profit from flesh trade business is being used for corruption, for promoting criminal activities and sometimes even for terrorism.

It is an evil, which is rampant in a social system supported by a complex matrix of social forces, where parents and relatives throw females into the flesh trade. Prostitution is like a kaleidoscope where images nurtured by society depicts, the status of prostitute women as sex object to gratify sexual desire. They have survived through all ages in nearly all countries, though in some cases it was tried to be regulated by law.

HISTORY

In our country, prostitution has existed from time immemorial. It has also been said that the prostitution is as old as the human history. In the courts of kings and sardars dancing girls and prostitutes were found^¹. In ancient periods, system of devdasi was started in the temples of South India. At the time of Rig-Veda; it is found that there were women courtesans or prostitutes. If we talk about the period of Mahabharata, courtesans were an established institution. The Adiparva(115-39) narrates how a vaishya(prostitutes) waited upon Dhritrashtra when his wife Gandhari became pregnant^².

Yaj: II 290 divides concubines into two categories, (i) avaruddha- who is kept in the house itself and farbidden to have intercourse with any other male; and (ii) bhujisyas- the concubine who is kept elsewhere and is the special keeping of the person with her^³.

REASONS FOR PROSTITUTION

Research reveals that females are drawn into it for various reasons; thousands of young girls are lured by false promises of marriage, many of them are lured by good job offers in cities or for good career, some of them are kidnapped and some are even sold by their parents; in case of Soni Bachu Lakhman Vs. State of Gujra^⁴t, it was held that where the husband was living with his wife and allowing her to be a prostitute, it raised a presumption, that the husband was doing so for the purpose of living on the earnings of prostitution. But sometimes child marriages are also an important factor for the girls to be drawn into this trade, and then they are forced into prostitution^⁵. Large number of women or girls in India who have been trafficked from across the border face negative consequences as a result of lack of legislation and appropriate procedures aimed at supporting and protecting them. Mainly victims are not identified as victims. They do not receive appropriate supports and protection. They may be criminalised for illegal border crossing, for crimes connected with the condition of being undocumented migrants, because of being prostitutes or for crimes connected with prostitution, for illegal labour and for other reasons. Often they are retrafficked; if they are deported without any kind of assistances, victims are afraid of retaliation from traffickers, retaliation either against them or their families. And when trafficking involves illegal border crossing because of their illegal status in the country of destination, these victims are often afraid of immediate deportation, if they seek help and try to escape from traffickers^⁶.

Due to industrialization and organization flesh trade business is running all over world. Most of the prostitutes come from under-privilege economic groups, means the people who have the dearth of basic needs like food. Some time they come to this business for fulfillment of small to large luxuries.

Sometimes traffickers influence the family of victims, they flaunt their wealth, create and impression of being financially very comfortable, disguise themselves as grooms and actually marry the unsuspecting the girls only to throw them in brothels later on. The parents are sometimes blinded by the false picture of luxury projected by the pimps and sometimes by the money advanced.

Sometimes widows are not able to remarry due to social norms of the society or country. Devdasis who are devoted to Hindu deities and idols are considered unfit for marriage and later on lead a prostitute’s life.

Once they enter this trade, then they are not in a position to return because of social stigma; another reason is that they have no sources of income, or may be they find it as an convenient alternation of money making. They face tremendous abuse, disease, physical and mental trauma at the hands of brothels owners and touts^⁷.

VICTIMS

Victims who are under the captivity of traffickers should not, logically, be held accountable or responsible for the offence committed against them. But they are often arrested, charge sheeted and convicted. When the victims are arrested by the police then they are charged of soliciting. When charges are cleared, they are brought back to the brothel by the exploiters.

Prostitutes are deemed to have lost their human rights they are treated as a commodity or chattel, which is a necessary incident of trafficking, the worst indignity heaped at the individual. Thus, the consequences of trafficking are violation of human rights of trafficked persons^⁸. But as we know it is the duty of the states, regardless of their political, economic and cultural system, to promote and protect all human rights and fundamentals freedom. So in the case of Prajwala(1) Vs. Union of India and others^⁹; courts said that every woman who was involved in offences relating to the ITPA(Immoral trafficking and Prevention Act), 1956, had right to file a PIL and that every women should be protected by the laws. And in this case a notice had been given to the various authorities for implement. The living condition of the women in the protective homes should be ameliorated.

CRIMINALS

Prostitution has developed into a crime, and the criminals into traffickers. Trafficking means procurement, transportation, transfer, delivery or receipt of person, legally or illegally, within or across borders, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position vulnerability or of giving or receiving payments or benefits to achieve the consent of a person having control over another person, for monetary gain or otherwise.

The criminals are a key link in the supply chain comprising of manifest and latent players who straddle the vicious road from ‘spotting’ to the exploitation of trafficking victims^¹⁰.

The criminals are distinguished according to age, sex, caste, religion, education, martial status, state and country. The involving of men and women among the victims was reported around fifty-fifty. This relatively high percentage of female criminal is caused by various reasons. Most of the women immediate contact was found to be women. Most of the prostitutes had been subjected to continuous abuse and had no choice but to continue living in the exploitative environment. Many of them graduate thereafter to the role of criminals.

In many cases women also are using their connections with their rural homes and inciting girls to the lure of city life. Sometimes women and children of migrants’ family are also exploited due to an inadequate support system. The international link of criminals are also involved. Most of the criminals visit other for trafficking.

Out of traffickers who have been involved in more then two offences and are under survelliance, only a few criminals are sent to jail. Many of the criminals manage to save themselves by bribing the police. It is a serious matter that the arrested person is released, especially when trafficking is a serious and non-bailable offence. Suspect can be left off only when there is no evidence of their involvement, not other wise^¹¹.

LAWS AND LEGISLATION

Indian legislature has drafted many laws and procedure to deal with the issue of commercial sexual exploitation of women and minors in prostitution. The basis of those laws find expression in the Indian constitution, and in enactments such as the ITPA, 1956, The Juvenile Justice (Care and Protection Act), 2000, Indian Penal Code and other laws.

Indian constitution has guaranteed Fundamental Right to save and protect the human life, Article 21 of the Indian Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 23(1) provides that trafficking in human beings is prohibited and any contravention of these provisions shall be an offence, Article 23 is enforceable not only against the state but also against private persons indulging in trafficking.

Besides the Fundamental Right, the following Directive Principles also have relevance; (Article 39(a), 39(c), 39(f), 42, 46 and 47 etc.)

As per the ITPA, 1956 prostitution per se is not an offence but the sexual exploitation of person for commercial purposes is an offence. The Suppression of Immoral Traffic in Women and Girls and Act 1956 (SITA) was enacted with the object of inhabiting or abolishing trafficking in women and girls. However, in 1978, SITA was amended by Amendment Act 46 of 1978, which took effect from 2 October 1979. This was owing to the realization that this social evil needed to be curbed and that the existing provision had failed to do so. There after in year 1986, SITA was drastically amended and renamed as Immoral Traffic (Prevention) Act, 1956. The main purpose of this Act was to inhibit or abolish the commercialized vice of trafficking in women and girls for prostitution as means of living.

Under the provisions of the Indian evidence Act 1872, Section 114(a)^¹² and 151^¹³ are relevant in the context of trafficking. Also section 51(2)^¹⁴, 53(2)^¹⁵, 98^¹⁶, 160^¹⁷, 327(2)^¹⁸ and 357^¹⁹ of the CrPc have relevance in this context.

Provision was also made in the IPC to deal with sexual offences, whose object was to protect the women and respect them. Sections 372^²⁰, 373^²¹, 354^²², 366^²³, 497^²⁴ and 498^²⁵ give the power and strength to the women.

The laws and provisions of this country give an impression of the growing awareness and recognition of the issues relating to trafficking. Though there is no movement against trafficking women still, some mainstream feminist and human rights activities fight for the plight of the women.

JUDICIAL REVIEW

Article 23 of the Indian Constitution prohibits trafficking in human beings, forced beggary, and other similar forms of forced labour and any contravention of these provision is an offence punishable in accordance with the law. The ITPA 1956 also covers special law relating to commercial sexual exploiters, and also covers the many offences that can be tried by a Judicial Magistrate and by a Session Judge. The victims can also file a petition to High Courts and Supreme Court Public Interest litigation (PILs), may also be failed.

In the case of Vishal Jeet Vs. Union Of India And Others^²⁶, PIL was filed against the forced prostitution of girls, devdasis and jogins; so the apex court held that in spite of stringent and rehabilitative provisions under the various Acts, results were not as desired and, therefore, called for an evaluation of the measure adopted by the central and state governments to insure their implementation. The Court called for severe and speedy legal action against exploiters such as pimps, brokers and brothel owners. The interest of the children by preventing their sexual abuse and exploitation was directed to be protected.

In Gaurave Jain Vs. Union Of India(I)^²⁷; Supreme Court passed and order to setup and advisory committee to make suggestion for eradicating child prostitution and point out social aspect for the care, protection, treatment, development and rehabilitation of the young victims, children and girls prostitute, from red light area; to free them from the abuses of the prostitution; to amend the existing law or to enact a new law if so warranted; to prevent sexual exploitation of children and to take various measures for effective enforcement thereof.

But the entire judgment was thereafter reviewed and recalled by a bench of three judges in Gaurav Jain Vs. Union Of India(II)^²⁸, Court illustrated that “The Constitutional and Human Rights to the victims of fallen trade of flesh trade need care and consideration of the society. This care calls upon to resolve that human problem with care and purposeful guidelines, lend help to ameliorate their socio economic condition, eradicate social stigma and to make available to them equal opportunities for the social order.

Judicial Activism, emerging from the concern for the protection of human rights, especially of women and children is called for; Judges have been instrumental in bringing about a paradigm shift in justice delivery. But some changes and amendments in the existing law is essential.

CONCLUSION

Trafficking in women and children is a serious violation of human rights. However, it was not on the priority list of law enforcement agencies earlier and, therefore, did not get the required attention. There were many distortions in law enforcement and delivery of justice, with many women being arrested, convicted and threatened. Many a times they were pushed back in to brothel, even though they were victim’s of trafficking.

So there is a need to have obligatory assistance and protection provided to the victims which can be range from protecting the identity and privacy of victims; ensuring full provision of information on legal proceeding and facilitating them to present their views, providing physical and psychological recovery of victims, ensuring physical safety of victims and also exploring the possibility of domestic law providing victims with compensation.

Victims must be protected not only from retaliation by the criminals, but also from revictimization. This is the responsibility of both the executive and the Judicial System. At the same time protection strategies must not go beyond a limit were they become paternalistic but be made more holistic thereby seeking not only to protect but also promoting human rights of all victims.

1 Mr. Sunil Raisoni, Legal Guage; Prostitution:- A Social Problem, Vol.II. Journal of G.H.Raisoni Law

School(2006-2007) p.90

2 Mamta Rao, Law Relating to Women and Children, 1^st ed.(Estern Book Company,2005) p. 115

3 Ibid. p.116

4 AIR 1960 Guj 37

5 Kiran Bedi, Promoting good Practices and Standerd, Human Trafficking- Its Cause and Prevention, Vol.LIII,No.3, The Indian Police Law Journal(2006), p.55

6 Report of the National Workshop to review the Implementation of Laws and Policies Related to Trafficking: Towards an Effective rescue and Post Rescue strategy, held on 27^th and 28^th Feb. 2004 at Mumbai By Prayas in collaboration with the NHRC.

7 Supra. P.55

8 Gunjan Kinnu, Bondage to Freedom an Analysis of International Legal Regime on Human Trafficking, ^st

ed.(NHRC,2006) p.24 - 25

9 (2005)12 SCC 135.

10 Dr. S.S. Srivastava, Criminology Criminal Administration, 1^st ed.(Central Law Agency,1996), p. 45

11 P.M. Nair, Trafficking in Women and Children in India, 1^st Pub.(Orient Longman Pvt. Ltd.2005), p. 127 –128

12 Common Course of Natural Events (Courts may presume existence of certain facts)

13 Provision of Indecent and Scandalous Question or Inquiry by the Court

14 Provision regarding Search of the Arrested Person and Making an Inventory of the Article Found Upon him.

15 Provision of a Female is to be Examined Under Section only by a female Registered Medical Practitioner

16 A Magistrate May Have Power to compel Restoration of Abducted Females

17 Any Police Officer’s Power to require Attendance of witnesses

18 The Power of the Court to Hold Certain trial in Camera is Associated with the Administration of Justice Itself

19 Court May Order to Pay Compensation

20 Selling Minor for Purpose of Prostitution etc.

21 Buying Minor for Purpose of Prostitution etc.

22 Assault or Criminal Forces to Woman with Intent to Outrage her Modesty

23 Kidnapping, Abducting or inducing woman to Compel her Marriage etc.

24 Punishment for Adultery

25 Enticing or Taking Away or Detaining With Criminal Intent a Married Woman

26 (1990)3 SCC 318

27 (1997)8 SCC 114

28 (1998)4 SCC 270

Exclusive Rights Of Patents Versus Compulsory Licensing: A Critical Analysis

Sun, 20 May 2012 07:26:35 +0530

INTELLECTUAL PROPERTY LAWS

I Introduction

There has always been a danger that the patentee will abuse the monopoly granted to him. The patent is granted not only for the benefit of the patentee, but also for the benefit of the public at large.^¹ A pharmaceutical company charges high prices for a life-saving drug; the poor are unable to afford it, but there is no competition because the product is patented. The inventor of a revolutionary new algorithm discovers that his invention may infringe a previously held patent, whose owner does not use the invention but refuses to grant a licence.^² A company holding a valuable patent obtains multiple patents on similar technologies to prevent other companies from entering the market. The public interest in all these situations could be advanced by forcing the patentee to grant a licence, but only at the expense of the patentee’s exclusive rights.

Compulsory licensing occurs when the state requires a patentee to licence his patent to another. Although common in other countries, including India, Japan, Germany, and the United Kingdom, it is rarely applied in the United States. In other countries, compulsory licensing is typically allowed when the patent is not being worked, when a dependent patent is being blocked, or when the patent relates to food or medicine. This research paper will explore the problems involved in the exclusive rights and reasons or circumstances for granting compulsory licences and harmonise the two.

Grant of a Patent and Compulsory Licensing in India

‘Patent’ is a grant made by the government to an inventor, conveying and securing him the exclusive right to make, use and sell his invention for a term of 20 years.^³ The object of the patent law has been explained by the Supreme Court in M/s. Bishwanath Parsad Radhey Shyam v. Hindustan Metal Industries^⁴ as follows: The object of patent law is to encourage scientific research, new technology and industrial progress. The grant of exclusive privilege to own, use or sell the method or product patented for a limited period, stimulates new inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the invention at the patent office, which after the expiry of the period of monopoly, passes into public domain.^⁵ A patent is granted only for an invention which must be new and useful. It must have novelty and utility.

The patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonable practicable^⁶ without undue delay.^⁷ A system of patents serves many useful purposes. If the invention is commercially utilized, the patent ensures just reward in terms of money and recognition for the inventor, for all the time and effort, knowledge and skills, money and other resources invested to come up with the invention. For the society, commercial exploitation of an invention means new and better products, higher productivity, and more efficient means of production.^⁸

The objective of granting the patent is to ensure that it is worked (utilized) in the country; and it is not meant to block production or further research and development. A patent system encourages technological innovation and dissemination of technology. This in turn stimulates growth and helps the spread of prosperity and better utilization of resources.^⁹ In an age when technology and knowledge are the greatest generators of wealth, the number of patents filed and granted nationally and internationally is a good indicator of the health of science and technology in a country.^¹⁰ Patent is granted by a State and hence has territorial applicability. That is, it is valid only in the country which grants the patent. There is no mechanism to obtain a global patent and you have to apply separately in all the countries where you want the invention to be protected.

A patent confers on the patentee, his agent or assignee the exclusive right to the patented invention for a limited period to the exclusion of all others. The patentee not only gets a monopoly right over the said invention for a limited period to make or use the invention or to market it, but also the right to prevent others from making, using or marketing such invention during the period of protection.^¹¹ The justification for the granting patent right is discussed in detail in Chiron corporation v. Organon Teknika Ltd.(No.10)^¹². It has been pointed out that “it is generally accepted that the opportunity of acquiring monopoly rights in an invention stimulates technical progress in at least four ways: First, it encourages research and invention; secondly, it induces an inventor to disclose his discoveries instead of keeping them a secret; thirdly, it offers a reward for the expense of developing inventions to the state at which they are commercially practical and fourthly, it provides an inducement to invest capital in new lines of production which might not appear profitable if many competing producers embarked on them simultaneously…”

Encouragement, inducement and reward are the main factors underlying the patent system. The public interest although apparently jeopardized by the grant of monopoly, is secured by increased industrial activity, developing new technologies and disclosure of new and useful invention.^¹³ Furthermore, patent law contains a number of safeguards, such as compulsory licensing and crown use, to curb any significant abuse of the patent monopoly.^¹⁴

Article 30 of the TRIPS agreement defines the exceptions in broad terms, which allows for limited exception so long as these do not unreasonably conflict with the normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner. Under this provision there is considerable freedom for national legislation to define the kind and extent of exception to be granted. Among them, it is important to provide for exceptions relating to research and experimentation on the invention i.e. with regard to a person who in good faith uses the invention prior to the filing of a patent by a third party. These exceptions include the use of the patented invention. The options available are:

Acts done privately and on a non-commercial scale or for a non-commercial purpose;
Use of an invention for scientific research or teaching purposes;
Experimentation on the invention for commercial purposes, for instance to test it or improve on it;
Preparation of medicines under individual prescriptions;
Use of the invention by third party that had used it bonafide before the date of application for the patent.

Compulsory licensing: Compulsory licensing, which basically means allowing a third party to make, use or sell a patented invention without the patentee’s consent,^¹⁵ has been viewed as a way of neutralising the perceived ills of the patent system.^¹⁶ There has always been a danger that the patentee will abuse the monopoly granted to him. The patent is granted not only for the benefit of the patentee, but also for the benefit of the public at large.^¹⁷ To prevent such monopoly, the Act has provided the grant of compulsory licences. The compulsory licences not only cover situations where a patent is not being worked, but also available in other circumstances such as where demand for a product is not being met on reasonable terms.

Abuse of the monopoly rights granted under a patent is a common phenomenon in all countries. It may take varies forms:

Meeting the demand for the patented articles solely by importation from abroad and not by manufacturing the patented article locally, thereby discouraging and prejudicing the establishment of new trade or industry or the development of an existing trade or industry;
Refusing to grant licences to work the patent locally;
Imposing unreasonable terms on licences thereby discouraging voluntary licensing;
Imposing restrictive conditions on the use, sale or lease of the patented articles thereby prolonging the patent monopoly rights even after the patent has expired.

To remedy this evil, a system of compulsory working of the patented by the grant of compulsory licences by a statutory authority and revocation of the patent non-working have been adopted in almost all countries, including the United Kingdom.^¹⁸

The exclusive right of the patentee is limited by the provision for grant of compulsory licences. The purpose of granting patents in India is to primarily secure that the inventions are worked in India on a commercial scale and not merely to enable patentees to enjoy a monopoly for the importation of the patented article.^¹⁹ Patent rights are meant to encourage technological innovation and help transfer and dissemination of technology for the social and economic welfare.^²⁰ The benefit of the patented invention has to reach the people at a reasonably affordable price.

The Patents Act, provides for compulsory licence of patent to a third party by the Controller, on application made at any time after expiry of three years from the date of sealing of the patent, on the following grounds:

the reasonable requirements of the public with respect to the patented invention have not been satisfied;^²¹ or
the patented invention is not available to the public at a reasonably affordable price;^²² or
the patented invention is not worked in India.^²³

If the Controller is satisfied about the grounds and the facts as set out in the application, he may grant a compulsory licence on the patent and direct the patentee accordingly to grant a licence to the applicant.^²⁴ In deciding on the application, the Controller is required to take into account several factors including the nature of the invention, the time which has elapsed since the sealing of the patent, the measures taken by the patentee to make full use of the invention, the ability of the applicant to work the invention to the public advantage, and the applicant’s capacity to take capital risk.^²⁵ The Act, also has special provision for compulsory licences on notifications by the central government in a case of national emergency, or of extreme urgency or of public non-commercial use.^²⁶

A compulsory licence can be terminated on patentee’s request when the circumstances in which the grant was made no longer exist and are unlikely to recur. The holder of the compulsory licence can of course object to the application and the Controller shall take into account that the licencee’s interest is not unduly prejudiced.^²⁷

Thus the presence of a strong and effective patent system may bring numerous benefits such as the dissemination of information and providing an incentive to invest in the development of new products and process which will eventually fall into the public domain.^²⁸

III International Patents Regime and Compulsory Licensing System

India is a party to several international agreements for the protection of intellectual property that have provisions regulating compulsory licensing. The earliest of these agreements is the Paris Convention for the Protection of Industrial Property^²⁹, which was entered into in 1883.^³⁰ The purpose of the Paris Convention was to establish a system for inventors to protect their inventions internationally.^³¹ Prior to the Paris Convention, an inventor was required to submit a separate patent application in each country where protection was desired, and had to comply with the different procedural and substantive filing requirements of each country.^³² To remedy this, the Paris Convention contains several provisions to promote uniformity in world patent law, including national treatment and right of priority.^³³ Nationals of member countries have the same rights with regard to intellectual property in the other countries of the Paris Convention as the other countries own nationals.^³⁴ The Paris Convention had 173 member nations as of July 15, 2009 and is administered by the World Intellectual Property Organization^³⁵.^³⁶ The WIPO’s goal is to harmonize national intellectual property legislation and procedures, and since the Paris Convention, there has been a steady move toward harmonization of world patent law. The WIPO “administers 23 international treaties dealing with different aspects of intellectual property protection.”^³⁷ Besides the Paris Convention, the WIPO also administers the Patent Cooperation Treaty^³⁸ (PCT), which was entered into in 1970. The PCT allows an inventor to file an “international application” in one of several national patent offices and delay filing in individual countries, while retaining the priority date of his first patent application. This reduces the expense of obtaining patent protection in multiple regions.^³⁹ The PCT has resulted in the harmonization of the patent application process in the member countries.^⁴⁰ The Agreement on Trade-Related Aspects of Intellectual Property Rights^⁴¹ was formed during the Uruguay Round of the General Agreement on Tariffs and Trade in 1993.^⁴² The TRIPS agreement led to the adoption of a twenty-year patent term in India to achieve uniformity in patent terms throughout the world.^⁴³ India has also made changes in the Indian Patents Act of 1970,^⁴⁴ in order to comply with the requirement of TRIPS agreement and which requires publication of patent applications after eighteen months.^⁴⁵ Recently, the WIPO proposed a new treaty, the Patent Law Treaty^⁴⁶ which will standardize and simplify application procedures and allow for electronic filing, which should eventually reduce the price of obtaining a patent.^⁴⁷ The ultimate goal is “a broad administrative system allowing for a single patent application covering the entire world,” which is expected to be achieved within five to fifteen years.^⁴⁸

Compulsory licensing of patents is provided for under Article 5 of the Paris Convention in order to prevent patent abuse.^⁴⁹ These provisions for compulsory licensing are among the most controversial provisions of the Paris Convention.^⁵⁰ Article 5, section A(2) provides that “each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licences to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.”^⁵¹ Section 4 provides that the compulsory licence may not be applied until after “the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last.”^⁵² The patentee can avoid the compulsory licence if he “justifies his inaction by legitimate reasons.”^⁵³ The licence is nonexclusive and nontransferable.^⁵⁴

The TRIPS agreement places further limitations on the granting of compulsory licences, providing that “members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.”^⁵⁵ Compulsory licences are regulated under Article 31, which has the following requirements: (1) authorization must be considered on the individual merits; (2) the applicant has attempted to obtain a licence from the patentee; (3) the use is nonexclusive and non assignable; (4) the use is primarily for the domestic market; and (5) the patentee receives adequate remuneration.^⁵⁶ TRIPS agreement allows the government to impose compulsory licences as a remedy for “anti-competitive practices.”^⁵⁷ There is also a provision allowing licensing in the case of dependent patents, which is discussed below.

Under certain circumstances in most countries, the government has the power to revoke or limit a previously granted exclusive patent right. In many countries this power includes the ability to grant a compulsory licence. Although the specific terms vary from country to country, there are three basic situations: (1) where a dependent patent is being blocked, (2) the patent is not being worked, or (3) the invention relates to food or medicine.^⁵⁸ These categories result from the limitations imposed on member countries by the Paris Convention and by the TRIPS agreement.

1. Dependent Patents: A dependent patent is one that cannot be used without infringing an earlier, existing patent.^⁵⁹ This can result in an undesirable situation where neither party can efficiently use the invention: the second party’s invention would infringe the first party’s patent, while the first party cannot use the improved invention of the second inventor. If the parties are unable to come to a licensing agreement, the improved invention would not be used. The loss to the public would depend on how much the second invention improves upon the first invention.^⁶⁰ If only the improved invention is commercially feasible, the public would be deprived of the invention. By having a compulsory licensing provision, the parties can be forced to either agree to royalty terms or cross-licence each other’s patents so that the invention may be worked.

The TRIPS agreement allows member countries to provide for the granting of a compulsory licence to the owner of a dependent patent (“the second patent”) which cannot be used without infringing another patent (“the first patent”), under the following conditions: (i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent; (ii) the owner of the first patent shall be entitled to a cross licence on reasonable terms to use the invention claimed in the second patent; and (iii) the use authorized in respect of the first patent shall be non assignable except with the assignment of the second patent.^⁶¹ Thus, if the second invention is a significant advancement over the first invention, the second patentee can force the original patentee to come to an agreement so that the public will have the benefit of the improved, second invention.

2. Non-working of Patent: The second common provision for the granting of a compulsory licence is where the patent is not being “worked.” Because the patent grant assumes that the invention will be used to benefit the public, the non-use of the invention by the patentee may be seen as a breach of this agreement, resulting in the loss of the exclusive right to the invention.^⁶² The Paris Convention has specific provisions allowing compulsory licensing when the patent is not being worked.^⁶³ Provisions requiring working in the country have attempted to encourage use of the invention within the particular country and to prevent the unreasonable denial of new inventions to the public.^⁶⁴

The definition of “worked” varies by country. Although “worked” may mean that the product must actually be produced in the country, in most countries it merely means that the product must be available in the country, either produced within or imported from without.^⁶⁵ The availability requirement is justifiable; if the invention is not available in a country, other producers should be allowed to obtain a licence so that the item is available to the public. However, if importation of the patented product does not qualify as “working,” then a country could freely grant licences for any product that is not actually made in that country.^⁶⁶ This is hard to justify on any grounds other than to protect local industries; companies should be allowed to produce the products where it is cheapest for them to do so, since the public will ultimately benefit from a cheaper product.^⁶⁷ Even in countries which define working to include importation, administrative agencies may not properly enforce the law, which may force the patentee to do some final processing of the product within that country to avoid the specter of compulsory licensing.^⁶⁸

3. Food and Medicine Patents: The third major provision for the granting of a compulsory licence is for inventions relating to food or medicine. There are several rationales for countries to permit compulsory licensing for these inventions: to protect national security by ensuring an adequate supply of medicine, especially to combat devastating diseases like AIDS; to avoid the high costs of new drugs which developing countries cannot afford; and to encourage the retention of scientists and the development of a local pharmaceutical industry.^⁶⁹ There is inherent tension between the needs of developed and developing countries. The pharmaceutical industry of developed countries does not want to allow drugs, which cost millions or billions to research and develop, to be used in other countries without consent.^⁷⁰ Because they are generally users but not producers, developing countries are reluctant to grant patent rights to pharmaceutical products. Allowing patent protection for such products can cause prices to triple, decreasing their availability.^⁷¹

The different views on compulsory licensing can cause conflict between developed and developing countries. For example, South Africa introduced legislation to allow the issuance of compulsory licences to reduce the cost of AIDS drugs to protect the health of the public.^⁷² The United States saw that action as a violation of patent protection under the TRIPS agreement.^⁷³ Eventually, the United States agreed to allow the licensing, but it is not clear if the change in the United States’ position was an acknowledgement of the legality of compulsory licensing of pharmaceuticals or merely a concession to political pressure.^⁷⁴

4. Other specific Provisions: The pervasiveness of compulsory licensing in foreign countries is illustrated by a brief survey of the patent provisions of the major industrial nations. In the United Kingdom, for example, compulsory licensing may be ordered three years after the grant if the demand for the patented product in the U.K. “is not being met on reasonable terms,” or if the refusal to grant a licence prejudices “the establishment or development of commercial or industrial activities.”^⁷⁵ There is also a provision for dependent patents: if a patented invention represents “an important technical advance of considerable economic significance,” but its use is hindered by a previous patent, the owner of the dependent patent may obtain a compulsory licence, and the original patentee may obtain a cross licence.^⁷⁶ In Japan, compulsory licensing may be ordered if the patent is not worked in Japan for three consecutive years.^⁷⁷ Japanese law also permits compulsory licensing “where working is in the public interest.”^⁷⁸ In Canada, a compulsory licence may be granted if three years after the grant, “the demand for the patented article in Canada is not being met to an adequate extent and on reasonable terms.”^⁷⁹ Canada previously allowed compulsory licences for both non-use and pharmaceutical patents, but these provisions were abolished in 1993.^⁸⁰ Germany allows compulsory licences if the patent is not worked within three years of the grant,^⁸¹ or if the patentee refuses to licence and permission to use the patent is “indispensable in the public interest.”^⁸² Thus, in these major industrial nations, compulsory licences may be granted in limited situations.

IV Exclusionary Rights of Patents v. Compulsory Licensing:

A Critical Analysis

The patent grant gives the patentee the right to exclude others from using his invention. The main rationales for the patent system are to promote the development and exploitation of inventions, and to encourage inventors to disclose their inventions to the public.^⁸³ By ensuring that his invention may not be freely copied by others, the patentee can develop the invention into a product with some degree of certainty that he will be able to profit from his investment.^⁸⁴ The public benefits by both the disclosure of the invention, which advances the public knowledge, and by the availability of a new product. If no patent protection was available, the inventor would have a large incentive to keep his invention secret, so that no competitor would be able to copy it.^⁸⁵

Although it encourages inventions and innovations that might not otherwise be made, the patent system generates social costs, the most obvious of which is the increased cost due to monopolistic pricing of products that would have been available without patent protection.^⁸⁶ Also, enabling firms to have exclusive use of a given invention may discourage routine advances in production that would not be patentable and favour excessive investment in innovation and research.^⁸⁷ Multiple companies may waste resources in attempting to duplicate a certain invention; however, the public may also benefit from multiple options and variations of a certain technology.^⁸⁸ Although the patent system does have some inefficiencies, very few would argue for its outright abolition; the key is to strike a balance by giving enough protection to encourage innovation, but not so much protection that it imposes excessive social burdens.^⁸⁹

There are a number of factors that must be addressed in determining the scope of the patent grant in order to maximize the incentive effect.^⁹⁰ These factors include the length of the patent grant, what subject matter is patentable, whether to have limitations such as the doctrine of equivalents and disclosure of the ‘best mode,’ and the application procedure.^⁹¹ Allowing compulsory licensing is merely another variable that can be adjusted in order to obtain the most efficient patent grant, that is, the one that maximizes the incentive of inventors to develop new inventions.

Compulsory licensing has been opposed on the grounds that it would diminish the purpose of the patent system by reducing inventors’ incentive to develop new technologies and encouraging inventors to keep inventions secret.^⁹² The possibility of a compulsory licence would reduce the value of the patent; therefore, inventors would be less likely to invest money to develop a new invention because the return on investment would be smaller.^⁹³ Inventors would be more likely to keep the invention secret, if feasible, rather than patent it, to avoid the possibility of a licence being granted. These two results would defeat the main purposes of the patent system: to promote innovation and to encourage disclosure of inventions. These arguments, however, overestimate the effects of a compulsory licensing system and would only occur in a system that grants licences very liberally. Virtually all systems give patentees a minimum three- to five-year time period in which to exploit their invention before compulsory licensing may be granted. This allows the inventor sufficient time to determine whether the invention is worth pursuing. Even after this time period, compulsory licences generally would only be granted if the invention was not being used domestically, or if it was blocking a dependent patent. Thus, inventors would be secure in the knowledge that they would still have patent protection for any invention that they planned to use, or that they would be able to obtain a cross licence for a blocking patent. Even if a compulsory licence were allowed to be granted for one of the other reasons (such as a medicine patent), the patentee would still have the advantage of a head start over his competitors in bringing the product to market, and would still be entitled to reasonable royalties from the licencee.^⁹⁴ Therefore, it seems likely that compulsory licensing would not significantly discourage investment in innovation or encourage keeping inventions secret.^⁹⁵ A related argument against compulsory licensing is that it reduces product competition.^⁹⁶ The competition between companies trying to develop the best product in order to control the market is what leads to the development of new products, to the benefit of the public.^⁹⁷ If a competitor could merely force a licence for the patented invention, the incentive to develop new inventions is diminished.^⁹⁸ Also, if compulsory licensing is available, a competitor who thinks that his product may be infringing may opt for the licence rather than risk being sued for infringement or trying to invalidate the patent. This could create the perception that a patent is valid when it really is not, because no one is willing to challenge it. However, this would only be a concern if compulsory licences were granted very liberally; under a normal compulsory licensing scheme, licences would be granted so infrequently that a party would generally be better off trying to develop a better product than relying on obtaining a compulsory licence.

The conclusion that compulsory licensing would not significantly impair the purpose of the patent system is supported by two studies of companies’ attitudes toward compulsory licensing. A study by Taylor and Silberston attempted to determine the effects of a worldwide compulsory licensing system on the economy of the United Kingdom.^⁹⁹ Their proposed compulsory licensing system would have allowed licensing of all patents, with very little procedural or substantive requirements to obtain the licence, and payment of “commercially reasonable” royalties.^¹⁰⁰ The evaluation was based on analysis of important industries and questionnaires completed by various industrial companies.^¹⁰¹ Although the effect would vary depending on the type of industry, the authors concluded that this system would slightly discourage patenting and public disclosure of technology, and ultimately have a marginally adverse impact on the U.K. economy.^¹⁰² Scherer et al. conducted another survey in 1958 of twenty-two large U.S. corporations to determine the importance to the companies of patent protection.^¹⁰³ Regarding patent licensing, there was a general willingness to licence patents, with reluctance to licence patents covering the companies’ principal products.^¹⁰⁴ When questioned as to their response to a general compulsory licensing provision, over half of the companies said it would have no effect, while about a third said that they would decrease their research activity.^¹⁰⁵ Thus, it seems that a reasonable compulsory licensing provision would not have much negative impact on the goals of the patent system.

Compulsory Licensing is to Prevent Blocking of Important Inventions: The most compelling, and perhaps least controversial, argument for having a compulsory licensing provision is to resolve the problem of blocking patents. Due to the recent increase in the number of patents granted and expansion of patents into new fields, there has been an increase in the number of situations where multiple parties have conflicting property claims and a licence would be beneficial to all parties, but bargaining for “that licence would likely break down.”^¹⁰⁶ One such situation is where there is a blocking patent. This is where one patentee (the “original”) has a patent on an invention and another patentee (the “improver”) has a narrower patent on an improvement of that invention.^¹⁰⁷ Because neither party could effectively use the improved version of the invention without infringing the other’s patent, if the parties are unable to come to a licensing agreement, the improved invention would not be used.^¹⁰⁸ Critics argue that compulsory licensing is unnecessary because any useful patent will be worked by its owner, or licenced to another if the owner is unable to work the patent.^¹⁰⁹ However, this ignores the problem of blocking patents as well as the strategy of patent suppression, where the owner may obtain and hold the patent not to use it, but to prevent others from using it. Suppression may occur if the patented product would compete with a product that the owner already produces. Companies may assemble huge portfolios of patents in a given industry, but only use a small number of the inventions. Although the unused patents would presumably be economically inferior to the used patents - because otherwise they would be used - the company may be mistaken as to the most useful patent, or the unused patents may be useful to other companies.^¹¹⁰ Thus, an invention which would be useful to the public is suppressed.

Critics also argue that even in countries with provisions for licensing when the patent is not being used, actual grants of compulsory licences are rare.^¹¹¹ However, this argument ignores cases where the possibility of a compulsory licence encourages the parties to come to an agreement themselves as a preferable alternative to litigation.^¹¹² For example, there have been several instances in U.S. patent history where two patentees, the original inventor and the improver, have been unable to come to an agreement and the parties end up in litigation.

Cases of Blocking Patents: Blocking patents often cause significant delays in the development of new technologies. A classic example of the problem of the blocking patent is the conflict between Marconi and De Forest.^¹¹³ The Marconi Wireless Telegraph Company held the Fleming patent for the diode used in the radio industry, while De Forest held patents for the triode, which was an improvement of the Fleming pioneering patent.^¹¹⁴ As holder of the dominant patent, Marconi was able to block use of the improvements, and the parties were unable to come to a licensing agreement.^¹¹⁵ The outbreak of World War I forced a resolution, but the dispute delayed the development of the radio by several years.^¹¹⁶

Another famous case of blocking patents occurred with the Wright Brothers’ patent for improving lateral stability in airplanes.^¹¹⁷ A competing patent held by Glenn Curtiss for ailerons was valid, but was held to infringe the Wright patent.^¹¹⁸ The two parties were unable to come to an agreement that would satisfy both interests: the holder of the broad patent and the holder of the improvement patent.^¹¹⁹ The outbreak of World War I led the government to arrange for the parties to come to a crosslicensing agreement.^¹²⁰

A recent case of blocking patents involved public key encryption.^¹²¹ The method for public key encryption was invented and patented at Stanford University, and licenced to Cylink. Soon afterwards, a team at MIT developed and patented an algorithm to perform the encryption and licenced it to RSA.^¹²² The algorithm was very successful and soon became the industry standard. Cylink claimed that using the RSA algorithm would infringe its patent, while RSA would not allow Cylink to use its invention with RSA’s commercially preferred algorithm.^¹²³ Eventually the parties came to an agreement to cross licence the patents.^¹²⁴

The two parties eventually settled and apparently agreed to cross licence each others’ patents.^¹²⁵ The large number of patents recently granted in this area will result in conflicts between patentees who may not be able to come to licensing agreements.

Resolution of Problem of Blocking Patents: Although it may be argued that the original inventor and the improver will always come to an agreement if both parties will benefit, there is no guarantee that the parties will agree on how to partition the financial stakes.^¹²⁶ There are two main reasons why they may be unable to come to an agreement.^¹²⁷ First, it is difficult to determine the relative values of the two inventions.^¹²⁸ The original inventor may underestimate the value of the improver’s invention, or the improver may overestimate the value of his own invention.^¹²⁹ One party may not know if the other party’s assessment was made in good faith or instead was being used as a bargaining tool.^¹³⁰ Second, the future development and profitability of the invention is uncertain.^¹³¹ With new and emerging technologies, it may be impossible at the beginning to tell whether the invention will be revolutionary and pioneering, or whether it will fail miserably.^¹³²

Strategic considerations may also lead parties to delay coming to an agreement or not being able to come to an agreement at all. The original patentee may delay reaching an agreement in order to gain as much advantage as possible over the owner of the subservient patent.^¹³³ This holdup problem is especially significant where the original patent contributes little value compared to the improvement patent; the original patentee loses little by delaying, and can try to gain as much value of the improvement patent as possible.^¹³⁴ The parties may also behave irrationally, such as if they are acting out of pride, resentment, anger, or spite.^¹³⁵ One can imagine a case where the original inventor believes that the improver has no right at all to “his” invention, thus leading to extreme bargaining difficulties.^¹³⁶ Compulsory licensing would resolve these deadlocks by allowing the improver to use the threat of a compulsory licence to force the original patentee to come to terms with the agreement. If the original patentee refused to come to terms, the improver would be able to attempt to obtain a compulsory licence. A compulsory licensing provision would also avoid the holdup problems that occurred in the Wright Brothers and Marconi cases, where the development of important technology was delayed due to bargaining breakdown. A criticism of allowing compulsory licensing is that it is difficult for a court to determine the proper royalty rate; the parties themselves are seen as better evaluators of royalty rates.^¹³⁷ However, this ignores the likelihood that in most cases, the mere threat of a compulsory licence will force the parties to come to an agreement on royalty rates.^¹³⁸ Also, the courts do have experience in determining royalty rates in patent infringement suits. There have been other proposals to deal with the problem of blocking patents. One solution is the reverse doctrine of equivalents, which states that even if an accused infringer literally infringes the claims, he will not be held to infringe if he has changed the principle of the invention so much that it has ceased to represent the original invention.^¹³⁹ However, this doctrine is rarely applied by the courts, and is only applicable to radically different inventions.^¹⁴⁰ Another proposed doctrine is “fair use” in patent law.^¹⁴¹ Analogous to the doctrine of fair use in copyright law, this would allow a person who would otherwise be infringing to use another’s patent right-possibly with compensation-in certain situations, depending on the nature of the use and the patent and the impact that the use would have.^¹⁴² While the arguments for these proposals have merit, compulsory licensing seems to be simpler to implement and more effective in application.

The patent systems of the industrialized world have become increasingly uniform. It is not hard to speculate that, in the next twenty years or so, an inventor will be able to apply for something like a “world patent” for protection in all major industrial countries.^¹⁴³ Most other countries have provisions for granting compulsory licences, especially when the patent is not being worked. The prevalence of provisions in other major industrial countries indicates that these countries find compulsory licensing beneficial. Although it is unlikely that a world patent system would require the every country to have a provision for granting compulsory licences, it would be to our benefit to do so.^¹⁴⁴ A compulsory licensing provision would ensure that the public is adequately supplied with a product. If the patentee is unable to produce enough supply to meet the demand for the product, another producer should be able to licence the product to meet the demand.^¹⁴⁵ A compulsory licensing provision would allow other manufacturers to produce the product to satisfy the domestic demand.^¹⁴⁶ This would create parity: domestic manufacturers would have the same opportunities to exploit patents owned by foreign companies.

Theoretically, compulsory licensing for non-use would not cut into the patentee’s profits, because the patentee was unable to meet the demand in the first place and would be able to obtain a reasonable royalty from the licencee.^¹⁴⁷ This argument, however, ignores the financial benefit of the patentee’s original monopoly position. The holder of a monopoly can intentionally undersupply a product in order to maximize profits; these profits would be undercut by the holder of the licence.^¹⁴⁸ Of course, if the patentee is not producing the product at all, these objections become irrelevant. Thus, a policy based on adequacy of supply must be carefully limited so that it ensures that a product is available to the public, without cutting into the patent monopoly of a legitimate producer.

V Conclusion

After reviewing the arguments for and against compulsory licensing, it is clear that compulsory licensing has an important in a patent system. A carefully crafted extension of compulsory licensing would enhance the public interest while still maintaining the incentive to develop new inventions. It is important that compulsory licensing be allowed only where truly necessary to promote the public interest, while not significantly reducing the incentive to develop new technology.

The strongest arguments for compulsory licences are to resolve the problem of blocking patents and to ensure the domestic use of the patented invention. These are the cases where the patentee has the least to lose and the public has the most to gain. In the case of blocking patents, a compulsory licensing provision would allow the improver to use his invention by giving the parties an incentive to come to an agreement or by forcing a solution if the parties are unable to come to an agreement. Likewise, when the patent is not being used in the country, the patentee has broken part of the agreement: although he has gained the right to exclude others from using the invention, he has not made the invention available to the public. By allowing a licence, the patentee gains a reasonable royalty and the public gains use of the invention. In each case, the provision would be used rarely enough that it should not significantly impact the incentive of parties to develop new technology.

For the case of blocking patents, the owner of the improvement patent would be able to obtain a licence for the original patent under the following conditions. The invention claimed in the second patent would have to be an important advance and economically significant compared to the invention covered by the first patent.^¹⁴⁹ The owner of the original patent would be able to obtain a cross licence on reasonable terms to use the invention covered by the second patent.^¹⁵⁰ For the non-use provision, the definition of non-use would be strictly construed; if the item was available through importation, no licence would be available. Also, if the patentee had multiple patents on several similar patents with the same utility, but only chose to market a product based on one of the patents, this would not be considered nonuse because the public has access to the product.^¹⁵¹ The applicant would not be able to apply for a licence until four years after the date of filing of the patent application or three years after the date of the grant of the patent, whichever period expires last.^¹⁵² An industry specific time period could be specified, but it would be unduly complicated to decide to which industry an invention would belong, and to decide on the appropriate time periods for different industries.^¹⁵³ If the patentee had legitimate reasons for not working the invention, such as long development times or the necessity of obtaining government approval, the applicant would be refused.^¹⁵⁴

The proper determination of royalty rates for compulsory licences is a difficult one in theory, but less difficult in practice. The existence of a compulsory licensing provision would provide a strong incentive for parties to negotiate among themselves to reach an agreement. If the parties cannot reach an agreement, remedies for antitrust violations and patent infringement provide ample precedent for determining royalty rates by using expert testimony. The maximum royalty that could be set would be that which would enable the patentee to realize profits as large as if he still retained a monopoly. This would not adversely effect the patentee’s incentive to innovate. A royalty rate far below this would weaken incentives for innovation, and also permit strong price competition.

Therefore, the royalty rate would be similar to the “reasonable royalty” rate of patent infringement suits: the amount that the licencee would be “willing to pay as a royalty and yet be able to make and sell the patented article, in the market, at a reasonable profit.”

BIBLIOGRAPHY

I List of Books:

B.L. Wadera, Law relating to Patents, Trademarks, Copyright, Designs & Geographical Indications (Universal Law Publising Co Ltd, New Delhi, 2^nd edn., 1999).
Daniel Gervais, TRIPS Agreement, The Drafting History and Analysis (Sweet & Maxwell, London, 3^rd edn., 2008)
David Bainbridge, Intellectual Property Rights (Pearson Education Limited, Delhi, 5^th edn., 2002).
Edith Penrose, The Economics of the International Patent System, 78 (Sweet & Maxwell, London, 1951).
Elizabeth Verkey, Law of Patents (Eastern Books Agency, Kolkatta, 2005).
Indian Law Institute, Intellectual Property Rights: A Global Vision (Indian Law Institute, New Delhi, 2004)
J.K. Das, Intellectual Property Rights (Kamal Law House, Kolkatta, 2008).
Paul Torremans and Holyoak, Intellectual Property Law (Oxford University Press, New York, 4^th edn., 2005).
P. Narayanan, Patent Law (Eastern Books Agency, Kolkatta 4^rd edn., 2006).
P. Narayanan, Intellectual Property Law (Eastern Books Agency, Kolkatta 3^rd edn., 2001).
Vikas Vashishth, Law and Practice of Intellectual Property Law in India (Bharat Law House, Kolkatta 1999).
W.R. Cornish, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (Sweet and Maxwell, London, 3^rd edn., 1996).

II List of Articles:

Compulsory Licensing under Section 92A: Issues and Concerns, Journal of Intellectual Property Rights 13(5), 2008 (Sep) 44-72.
Cole M. Fauver, “Compulsory Patent Licensing in the United States: An Idea Whose TimeHas Come”, 8 NW. J. INT’L L. & BUS. 666 (1988).
C.T. Taylor & Z.A. Silberston, “The Economic Impact of the Patent System”, 29 (Univ. of Cambridge Dep’t of Applied Econ., Monograph No. 23, 1973).
Dayal, Kamaldeep, Compulsory Licending from an International Perspective Impact on Innovation, Delhi Law Review, 2004 228-47.
Gianna Julian-Arnold, “International Compulsory Licensing: The Rationales and the Reality” 33 IDEA 349, 349–50 (1993).
Nair, M.D. Compulsotry Licences Imbroglio: Provisions under TRIPS and their Interpretations, Journal of Intellectual Property Rights 9(5), 2004 (Sep) 415-23
Nanda, Nitya, Diffusion of Climate Friendly Technologies: Can Compulsory Licensing help? Journal of Intellectual Property Rights 14(3), 2009 (Sep) 241-46.
Robert P. Merges, “Intellectual Property Rights and Bargaining Breakdown: The Case of Blocking Patents”, 62 TENN. L. REV. 75, (1994).
Sara M. Ford, “Compulsory Licensing Provisions Under the TRIPS Agreement: Balancing Pills and Patents”, 15 AM. U. INT’L L. REV. 941 (2000).
Subramanian, Arvind Compulsory Licensing in Patent Legislation: Superfluous and Misleading Economic and Political Weekly, 25 1990 1880-1

III List of Statutes:

The Patents Act, 1970.
The Patents Act, 1977 (U.K.).

IV List of International Conventions:

The Agreement on Trade related aspect of Intellectual Property, 1996.
The Paris Convention, 1883.
The Patent Cooperation Treaty, 1970.

V List of Websites:

1 David Bainbridge, Intellectual Property Rights 88 (Pearson Education Limited, Delhi, 5^th edn., 2002).

2 Steven C. Carlson, “Patent Pools and the Antitrust Dilemma”, 16 YALE J. ON REG. 359, 364 (1999) (detailing the conflict over patents for public key encryption).

3 P. Narayanan, Intellectual Property Law 21 (Eastern Books Agency, Kolkatta 3^rd edn., 2001).

4 AIR 1982 SC 1444.

5 Supra note 1.

6 See, Patents Act, 1970, s. 89 (a).

7 Id., s. 83 (a).

8 Elizabeth Verkey, Law of Patents 321 (Eastern Books Agency, Kolkatta, 2005).

9 Ibid.

10 Id., at, 322.

11 Supra note 3, at 45.

12 (1995) FSR 325.

13 Supra note 1, at 36.

14 Ibid.

15 F.M. Scherer & Jayashree Watal, Post-TRIPS options for access to patented medicines in Developing countries 13 (available at: http://www.emhealth.org/docs/wg4_paper1.pdf.(visited on February 23, 2010).

16 Compulsory licensing was a component of a late nineteenth-century English patent reform Bill.

17 Supra note 1.

18 P. Narayanan, Patent Law 315 (Eastern Books Agency, Kolkatta 4^rd edn., 2006).

19 Supra note 6, s. 83 (b).

20 W.R. Cornish, Intellectual Property: Patents, Copy right, Trade marks and Allied Rights 205 (Sweet and Maxwell, London, 3^rd edn., 1996).

21 Supra note 6, s. 84.

22 Id., ss. 84 & 90.

23 Id., ss. 84 & 89.

24 Id., s.84 (5).

25 Id., s. 85.

26 Id., s. 92.

27 Nair, M.D. Compulsotry licences imbroglio: Provisions under TRIPS and their interpretations, Journal of Intellectual Property Rights 9(5), 2004 (Sep) 415-23.

28 Supra note 3, at 43.

29 Hereinafter ‘Paris Convention’.

30 Paris Convention for the Protection of Industrial Property, Sept. 5, 1970, 21 U.S.T. 1583, 828 U.N.T.S. 305.

31 Ibid.

32 See Gerald J. Mossinghoff & Vivian S. Kuo, World Patent System Circa 20XX, A.D., 38 IDEA 529, 532 (1998).

33 Ibid.

34 Supra note 30, Art. 2(1).

35 Hereinafter ‘ WIPO’.

36 See World Intellectual Property Organization Website, “Paris Convention for the Protection of Industrial Property”, available at: http://www.wipo.org/treaties/docs/english/d-paris.doc. (visited on March 23, 2010)

37 World Intellectual Property Organization Website, “About WIPO”, available at: http://www.wipo.org/ about-wipo/en. (visited on March 23, 2010)

38 Hereinafter ‘PCT’.

39 See Kevin Cuenot, “Perilous Potholes in the Path Toward Patent Law Harmonization”, 11 J. L. & PUB. POL’Y 101, 105 (1999).

40 Ibid.

41 Hereinafter ‘TRIPS agreement’.

42 Agreement on Trade-Related Aspects of Intellectual Property Rights, Dec. 15, 1993, 33 I.L.M. 81.

43 Id., Art. 33; The Indian Patents Act, 1970, s. 53.

44 The provisions of this Act, other than sections 12(2), 13(2), 28, 68 and 125 to 132 came into force on 20.04.1972, vide S.O 300(E), dated 20^th April, 1972, published in Gazette of India, Extra., Pt.II, Section 3(ii), p.735.

45 See Section 11A (i) of the Indian Patents Act, 1970 and Rule 24of the Patents Rules, 2003 speaks about Publication of application. Normally every patent application is published after 18 months of filing the application and objections are invited. The patent application shall not be open to the public for eighteen months after the date of filing, or date of priority, whichever is earlier.

46 Hereinafter ‘ PLT’.

47 See Daniel Pruzin, WIPO Members Adopt Patent Law Treaty; Work to Begin on Harmonizing Standards, BNA Patent, Trademark & Copyright Daily, June 2, 2000, at D2.

48 Ibid.

49 Supra note 30, Art. 5.

50 See Edith Penrose, The Economics of the International Patent System, 78 (Sweet & Maxwell, London, 1951).

51 Supra note 30, Art. 5A (2).

52 Id., Art. 5A (2).

53 Ibid.

54 Section 4 provides: A compulsory licence may not be applied for on the ground of failure to work or insufficient working before the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last; it shall be refused if the patentee justifies his inaction by legitimate reasons. Such a compulsory licence shall be non-exclusive and shall not be transferable, even in the form of the grant of a sub licence, except with that part of the enterprise or good-will which exploits such licence.

55 Supra note 42, Art. 30.

56 Id., Art. 31.

57 Id., Art. 31(k).

58 See Gianna Julian-Arnold, “International Compulsory Licensing: The Rationales and the Reality” 33 IDEA 349, 349–50 (1993).

59 Id, at 350.

60 Ibid.

61 Supra note 42, Art. 31(l).

62 Supra note 58, at 351.

63 Supra note 30, Art. 5.

64 Supra note 58, at 352.

65 See Cole M. Fauver, “Compulsory Patent Licensing in the United States: An Idea Whose TimeHas Come”, 8 NW. J. INT’L L. & BUS. 666 (1988).

66 This reflects the roots of many countries’ patent systems, where patents were granted to non-nationals mainly to encourage the actual use of the invention within the country; the administration of the patent system was subject to the goal of effectively developing national industries.

67 Supra note 65, at 673–74.

68 See Arthur Wineburg, “U.S. Trade Threats Spur Asian Laws on Intellectual Property”, July 13 NAT’LL.J., 35 (1992). (describing how in Korea, even though the patent statute defines working to include importation, “Korean lawyers regularly advise their clients not to rely solely on importation to satisfy the statutory working requirement.”).

69 Supra note 58, at 353–54.

70 Sara M. Ford, “Compulsory Licensing Provisions Under the TRIPS Agreement: Balancing Pills and Patents”, 15 AM. U. INT’L L. REV. 941 (2000).

71 Supra note 51, at 29.

72 Supra note 70, at 950.

73 Ibid.

74 Id. at 956.

75 Patents Act of 1977 (1999) (England), ss. 48, 48A(1)(b), (c).

76 Id., s. 48A(1)(b)(i), (4).

77 See Japanese Patent Law, 1959, Art. 83(1).

78 Id., Art. 93(1).

79 The Patent Act, (R.S.C.) s. 65 available at: http://laws.justice.gc.ca/en/p-4/78427.html

80 See J.W. Baxter, World Patent Law and Practice § 9.02 (2001); Edward Hore, A Comparison of United States and Canadian Laws as They Affect Generic Pharmaceutical Market Entry, 55 FOOD & DRUG L.J., 373, 383 (2000).

81 Ibid.

82 The German Patent Law (West Germany), Art. 15.

83 Supra note 50, at 31.

84 Id, at 34.

85 See F.M. Scherer, Industrial Market Structure and Economic Performance 451 (Sweet & Maxwell, London, 2nd edn., 1980).

86 Ibid.

87 See C.T. Taylor & Z.A. Silberston, “The Economic impact of the patent system”, 29 (Univ. of Cambridge Dep’t of Applied Econ., Monograph No. 23, 1973).

88 Ibid.

89 See F.M. Scherer, “The economic effects of compulsory patent licensing”, 84 (Ctr. for the Study of Fin. Inst. N.Y. Univ., Monograph No. 1977-2, 1977).

90 Supra note 85, at 442; Robert P. Merges & Richard R. Nelson, “On the Complex Economics of Patent Scope”, 90 COLUM. L. REV. 839, 839 (1990).

91 Id, at 839.

92 See Leroy Whitaker, “Compulsory Licensing-Another Nail in the Coffin”, 2 AM. PAT. L. ASS’N Q.J. 155, 161 (1974).

93 Supra note 65, at 676.

94 Id. at 676–77.

95 Supra note 85, at 457 (“The substantial amount of evidence now available suggests that compulsory patent licensing . . . would have little or no adverse impact on the rate of technological progress and would on occasion mitigate significant monopoly burdens.”).

96 Supra note 92, at 165.

97 Ibid.

98 Ibid.

99 Supra note 87, at 85.

100 Id. at 86.

101 Id. at 82–83.

102 Id. at 349–50.

103 Supra note 89, at 51.

104 Id. at 56.

105 Id. at 59.

106 Maureen A. O’Rourke, “Toward a Doctrine of Fair Use in Patent Law”, 100 COLUM. L. REV. 1177, 1179 (2000).

107 Supra note 90, at 860.

108 See Robert P. Merges, “Intellectual Property Rights and Bargaining Breakdown: The Case of Blocking Patents”, 62 TENN. L. REV. 75, (1994).

109 Supra note 65, at 675.

110 Supra note 85, at 452.

111 Supra note 87, at 16 (noting that sixteen applications for compulsory licences were filed in the U.K., between 1959–68; two were allowed, one was refused, and the rest were withdrawn); supra note 40, 351 n.10 (noting that Japan last granted a compulsory licence for a dependent patent over twenty-five years ago, and that Switzerland had never granted one); A. Jason Mirabito, “Compulsory Patent Licensing for

the United States: A Current Proposal”, 57 J. PAT. OFF. SOC’Y 404, 428 (1975) (noting that as of 1973, there had been three compulsory licences granted in France since 1953, eight had been granted in Japan for non-working since 1960, and eleven of fifty applications had been granted for abuse since 1935 in Canada).

112 Supra note 87, at 16.

113 See Marconi Wireless Tel. Co. of Am. v. De Forest Radio Tel. & Tel., 236 F. 942 (S.D.N.Y. 1916), aff’d, 243 F. 560 (2d Cir. 1917).

114 See id. at 955.

115 Supra note 90, at 85.

116 See id. at 87.

117 Supra note 90, at 839.

118 Wright Co. v. Herring-Curtiss Co., 204 F. 597, 614 (W.D.N.Y. 1913), aff’d, 211 F. 654 (2d Cir. 1914).

119 Supra note 90, at 890.

120 George Bittlingmayer, “Property Rights, Progress, and the Aircraft Patent Agreement”, 31 J.L. & ECON. 227, 232 (1988).

121 Supra note 2.

122 Ibid.

123 Ibid.

124 Ibid.; see also Business Wire, Inc., Cylink and RSA Data Security Reach Legal Settlement; Public Key Encryption Companies to Exchange Patent and Software Rights, Business Wire, Jan. 7, 1997. Available at West Law, 1/7/97 BWIRE 07:48:00 (“as part of the settlement, Cylink granted RSA all necessary rights to Cylink’s Stanford patents, and RSA granted to Cylink a licence to RSA’s cryptographic software tool kits.”).

125 Business Wire, Inc., DoubleClick Settles Patent Litigation with 24/7 Media as Well as Separate Patent Litigation with L90, Business Wire, Nov. 6, 2000, available at: West Law, 11/6/00 Business Wire 17:56:00 (stating 24/7 Media and Sabela Media have settled their patent litigations granting each other certain rights in their respective patents).

126 Supra note 108, at 82–83.

127 Id. at 75.

128 Ibid.

129 Id. at 89.

130 Id. at 89-90.

131 Ibid.

132 For example, IBM originally saw no commercial demand for the computer, and in 1956, the company that developed the forerunner of the VCR estimated that it would primarily be used only for

broadcasters. Id. at 86 nn.41–42.

133 Supra note 90, at 865.

134 Id. at 865–66.

135 Supra note 108, at 90.

136 Ibid.

137 Id. at 99–101.

138 Supra note 87, at 16.

139 Supra note 90, at 864.

140 See Phillips Petroleum Corp. v. United States Steel Corporation, 673 F. Supp. 1278, 1350 (D. Del. 1987), aff’d, 865 F.2d 1247 (Fed. Cir. 1989).

141 Supra note 106, at 1177.

142 Id. at 1205.

143 Supra note 32, at 530.

144 Supra note 111, at 434–35.

145 Supra note 65, at 668–69.

146 Supra note 111, at 434–35 (noting that a compulsory licensing statute would allow a domestic company to compel “a foreign company holding a U.S. patent for defensive purposes to licence the patent to it.”).

147 Id. at 669.

148 Ibid.

149 Id. Art. 31(l)(i).

150 Id. Art. 31(l)(ii).

151 Supra note 92, at 157.

152 Supra note 30, Art. 5. It has been argued that the idea behind compulsory licensing provisions for non-use was to permit others to use an invention when it became apparent that the patentee either lost interest or did not have the capabilities to exploit the invention. Robert M. Sherwood, Intellectual Property and Economic Development 186 (1990). Lead times for many products are at least five years, and thus a longer period of time should be required before an application for a compulsory licence should be permitted. Id. at 186–87. However, many software and business method inventions have development times of less than five years, so on average the three or four years stipulated by the Paris Convention should be enough time for the patentee to work the invention and thus avoid the specter of compulsory licensing. In any case, if the patentee has a legitimate reason for not working the invention yet, the licence would not be granted.

153 Id., at 187.

154 Supra note 30, Art. 5.

Law And Policy On Concept Of Creamy Layer

Sun, 20 May 2012 07:26:35 +0530

Chapter-V- Creamy Layer in Backward Class Reservation

Law is a system of rules made by a society to maintain order and protect harm to persons and property. In a State, laws are made by parliament (legislation) and court (case), enforced by the executive and supported by the court. These laws can be regarded as being purely formal, irrespective of whether they are good or bad, but the laws must not contradict the Constitution. In Indian constitution no where define what law is? Although Article 13¹ says about consistency and inconsistency of law and what law includes. While the Policy is "any course of action followed primarily because it is expedient or advantages in a material sense". When put into a political theme, becomes Public Policy whereby the government or a political party will determine decisions, actions and other matters that will prove advantages to society in general’. Therefore policy is a plan of action or a line of argument rationalizing the course of action of a government to solve public issues. Some time government debated policy as a proposed legislation and maybe administered through state action such as regulations and administrative practices².

Constitutional Law provides preferential treatments to the Backward Classes of citizens in the matter of appointment or posts in Public Services and it was a controversial issue since the enactment of the Constitution³. The provisions for job reservation to SCs and STs are incorporated in the Constitution as a part of the means to abolish the caste based close hierarchical society and to establish an egalitarian society having equal status and opportunity. The very purpose of reservation be defeated if the benefit of the reservation is not reached to the real backward classes of the society. Therefore to serve the basic objective of constitutional reservation proper identification of the persons deserving to get the benefit of reservation is considered to be essential. The apex court of the country had the opportunity to consider the legality of different criteria formulated by various State Governments to find out backward classes for the purpose of reservation under Article 16 (4) of the Indian Constitution⁴. In 1992 during examining the validity of the job reservation policy to Backward Class and the criteria formulated by the Mandal Commission to identify backward classes of citizens in India, the Supreme Court itself had formulated a concept in this regard i.e. the creamy layer principle⁵.

Now the concept of ‘creamy layer’ has to be critically evaluated under –

(i) Judicial approach as law and

(ii)Political approach, as policy

CONCEPT OF CREAMY LAYER - A JUDICIAL APPROACH (LAW)

The Concept of ‘Creamy Layer’ owes for its birth to the apex court of India⁶because Indian Constitution has no room for it, but for the first time the term"creamy layer” introduced by the Sattanathan Commission⁷ in 1971 to directe that the "creamy layer" should be excluded from the reservation of civil posts and services granted to the OBCs. The Creamy Layer principle has been laid down by Supreme Court for the exclusion of the advanced sections of the backward class groups for the purpose of reservation and which had caused to the division of the society into Backward Classes (Consisting of members of Backward Castes excluding creamy layer) and Forward Classes (Consisting of members of Forward Castes + members of Backward Castes coming under creamy layer).

The Supreme Court has said that the benefit of reservation should not be given to OBCs children of constitutional functionaries such as the president, judges of the Supreme Court and high courts, employees( class1, & class II) of central and state bureaucracies, public sector employees, members of the armed forces and paramilitary personnel above the rank of colonel, lawyers, chartered accountants, docttors, financial and management consultants, engineers, film artists, and authors. OBC children belonging to any family that earns a total gross annual income of Rs. 4.5 lakh⁸because theybelong to the creamy layer and so are also excluded from being categorised as "socially and educationally backward" regardless of their social /educational backwardness. Analyzing the approach of Supreme Court towards reservation policy one could find, the Court is very particular that the creamy layer among the backward classes should be excluded for the purpose of reservation. The Supreme Court has formulated this principle after considering almost all relevant aspect viz historical, social, economic, political and developmental. Besides this different methods of judicial pronouncement – like historical, logical and sociological - have been adopted by the Court in formulating this new legal principle, having far reaching social, economic political consequences. The reasoning, given by different panel of adjudicators had provided adequate theoretical foundation to the principle. The political and legal attempts to frustrate the new idea had failed owing to the bold stand taken by the Supreme Court.

In the case of Indra Sawhney and others v/s Union of India⁹ petitioner’s argument was that some members of designated backward class are highly advanced socially as well as economically and educationally and this upper crust or forward, among backward are lapping up all the benefits of reservation meant for that class without allowing benefits to reach the truly backward members of that class. The petitioner relied on K. S. Jayasree V/s State of Kerala¹⁰ case wherein the Supreme Court had approved the Kerala scheme to keep certain classes out from the reservation benefit by fixing economic ceiling. Case of State of Kerala V/s N. M. Thomas¹¹, was also cited where Krishna Iyer, J. pointed out one of the dangers of reservation to be that, “its benefits, by and large, are snatched away by the top creamy layer of the ‘Backward Caste’ or class keeping away weak and leaving the fortunate layers to consume to the whole cake.” Therefore seed of concept of creamy layer has been found in above cases before the Indra Sawhney case.

In Indra Sawhney case the first and foremost issue in this respect to be decided was; whether the philosophy of creamy Layerisation would be limited to OBCs only or would include Scheduled Castes and Scheduled Tribes also, for whom reservational benefit had been given since long and there have been eyebrow of elitists since long as the issue of reservation on Central Services for OBCs was not in contemplation. The second issue was; who were the opponents of giving benefits to all OBCs including their upper crust and was it advisable to declare the upper crust of OBCs outside the purview of reservation side by side the vacation of stay order against the union policy?

As to the first issue Chief Justice Kania and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ had observed in running way, i.e. this discussion is confined to other Backward Classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes¹².

Although in M. Nagraj & others v/s Union of India & others¹³ case with five judges bench observed that concept of creamy layer could be applied in case of SCs and STs also. But Attorney General Milon Banerjee said that here court’s view is obiter dicta and it is not part of decision. While in Indra Sawhney case decision was given by nine judges’ bench that principle of creamy layer is applicable only on OBCs, whereas in Nagraj case decision is given by five judges bench. And there is another precedent that a similar panel could not overturn a larger bench’s verdict.

Recently in Ashok Kumar Thakur v/s Union of India¹⁴ five judges bench laid down that ‘creamy layer’ principle is one of the parameters to identify backward classes. Therefore, principally, the ‘creamy layer’ principle cannot be applied to SCs and STs, as SCs and STs are separate classes by themselves. Principle of‘ creamy layer’ applicable to OBCs, as Chief Justice K.G. Balakrishnan¹⁵ stated: "by excluding those who have already attained economic well-being or educational advancement, the special benefits cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination. But this logic is applied exclusively for OBCs and the logic is not applied for SCs, STs & the unreserved category seats. The criterion is also not applicable to minority institutions. Hefurther said that we are bound by larger bench decision of the Supreme Court in Indra Sawhney case. This observation had been criticized severally that if the rule of skimming off of upper crust of OBCs is pleaded how it may not be applied to SCs /STs. Mr. K.C. Yadav¹⁶ who challenges the discriminatory use of Creamy Layer formula; said Art.16 (4) takes care of the Backward Classes as a genus of which the Scheduled Castes, Scheduled Tribes and Other backward Classes constitute different species. There is no churning out of the ‘creamy layer’ from the Schedule Caste and Scheduled Tribes in matter of job reservation. Why should the other Backward Classes be subjected to this discriminatory provision”? Mr. B.K. Roy Burman¹⁷, one of the members of the Mandal Commission, has also repeated the same charge; “if there is no question of identifying the ‘creamy layer’ among the Scheduled Castes, Scheduled Tribes, why there should be an effort to do so in relation to the Other Backward Classes”.

India, therefore, has faced a war between legislature vs judiciary whereby the will of the legislature is undermined by the utopian concepts / perception of the supreme court. It is another debate can the judiciary impose any policy upon the government or the legislature. Whether a socially and educationally backward child can be denied the constitutional upliftment by a bench interpreting the constitution for the reason that his / her parents managed to get a combined yearly income of 4.5 lakh is another pandora’s box since the "exclusion concept" is used to discriminate within OBCs only.

As to the second issue except Pandian, J. all the other eight hon’ble justices out of nine were of the view that reservation to OBCs should be allowed subject immediately to skimming off the creamy layer among them. Kania C.J. and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ., were of the view that creamy layer was ruled for the exclusion, so the criteria must be ability to compete with the forward classes. Thommen, J. accepted attainment of certain economic level for exclusion. Kuldip Singh accepted means test to skin off the affluent section of the backward classes. Sahai, J. found a social purpose in exclusion through proper income, property or status criteria.

The majority view favoured application of creamy layer but they were not very much sure as to dividing line and wanted to ensure that it should not amount to taken away with one hand what is given by the other. They ruled that the basis of exclusion should not merely be economic one unless economic advancement is so high that it necessarily means social advancement like ownership of a factory¹⁸.

Jeevan Reddy, J. while delivering the judgment cautioned that line drawn between creamy layer and rest of the class must be a realistic one and income limit should be prescribed as such which may be indicative of social advancement. It should mean and signify social advancement. The Court pointed out certain positions to be recognized as socially advanced like becoming a member of IAS or IPS or any other All India services¹⁹. Exclusion of such advance class was declared to be advantageous to identify the rest of class a truly backward class and thereby would more appropriately serve the purpose and object of art.16 (4).

Sawant, J. gave his judgment about ‘creamy layer’ on two grounds: first, the natural progress reveals undeniable fact that when society moves at least some individuals and families in the backward classes, however small in number, gain sufficient means to develop their capacities to compete with others in every field. Irrespective of their original birthmark they cannot be called as part of backward classes. To continue reservational benefits to them would violate equality as would amount to treating equals unequally²⁰. Second, to rank them with the rest of the backward classes would equally violates the right to equality of the rest in those classes, since it would amount to treating unequals equally²¹. According to him -“…..hence, taking out forwards, from among the backward classes is not only permissible but obligatory under the Constitution”²².

Thommen and Kuldip Singh, JJ., preferred means test and pointed out that once a class of citizens is identified on the principles as backward for the purpose of reservation, the “means test” must be strictly and uniformly applied to exclude all those persons in that class reaching above the predetermined economic level. In his view, classes for which reservation is meant are those classes who are totally unable to join mainstream of upward mobility because of their utter helplessness arising from social and educational backwardness and aggravated by economic disability²³.

Kuldip Singh, J. thought that benefits of special privilege like job reservations were mostly chewed up by richer or more affluent sections of backward classes and the poorer and the really backward sections among them keep on getting poorer and more backward. It is therefore, recommended that means-test is imperative to skim - off the affluent sections of the backward classes²⁴. He, for the necessity of Creamy Layer observed; “the jobs are so very few in comparison to the population of the backward classes. It is difficult to give them adequate representation in the State services. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weaker section of the backward class. Economic ceiling to cut off the backward class for the purpose of job reservation is necessary to benefit the needy sections of the class. Means test is imperative to skin - off the affluent sections of the backward classes²⁵”.

Even S. Ratnavel Pandian, J., in dissenting opinion, said that, “the office memorandum based on Mandal Commission report does not speak of any “creamy layer test”. It is the judiciary which laid down principle of creamy layer to justify reservation for OBCs. He further state that, “there is no dispute that the pseudo - communities who have smuggled into the backward classes should be weeded out from the list of backward class. But he pointed out that the act of weeding out must be done only by the Government on proper verification”²⁶.

A nine bench of apex court authoritatively came to the conclusion with majority view of B.P. Jeevan Reddy, J. that, ‘Creamy Layer’ can be, and must be excluded²⁷ from the said ‘classes’, and the ‘classes’ which remains after excluding the ‘creamy layers’ would more appropriately serve the purpose and object of Article 16(4).

They observed that, “The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In determining backward class under Art.16 cls.(4), if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. When reservations are making for Backward Class, Creamy layer can be and must be excluded. In fact such exclusion benefits the truly backward. The Supreme Court therefore directed the Government of India to specify the basis of exclusion - where on the basis of income, extent of holding or otherwise - of creamy layer and held that after exclusion of Creamy layer reservation is valid²⁸.

R.M. Sahai, J., separately observed that, “While reserving posts for backward classes the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward…..”²⁹. Regarding the legality of Creamy layer principle R.M. Sahai, J. observed that, “…..Reservation for a group which was educationally, economically and socially backward before 1950 shall not be valid unless the group continues to be backward today. The group should not have suffered only but it should be found to be suffering with such disabilities. If a class or community ceases to be economically and socially backward or even if it so it is adequately represented then no reservation can be made as it no more continues to be backward even though it may not be adequately represented in services or it may be backward but adequately represented”³⁰.

Finally it could be said that there is no disagreement on the principle of ‘creamy layer’. Creamy layer amongst backward class of citizens must be excluded by fixation of proper income, property or status criteria. But the task to identify creamy layer is the job of Government by appointing a commission. As per the direction of Supreme Court R. N. Prasad committee was established to identify creamy layer among backward class for the exclusion from the benefit of reservation on February 1993 and this committee submitted its report to the government on 10^th March 1993³¹.

In Ashoke Kumar Thakur v/s State of Bihar and U.P case³² , in this case the constitutionality of the criteria for determining ‘creamy layer’ for the purpose of exclusion from OBCs lay down by the State of Bihar i.e. “the Bihar Reservation of vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995 and State of U.P. the Uttar Pradesh Public Services Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994 was challenged. Division bench of Kuldip Singh and S. Saghir Ahmad, JJ., declared the creamy layer formula of both the States as invalid for being against the norms indicated by the Hon’ble Supreme Court in Mandal case and R.N. Prasad Committee.

A comparative evaluation of the identification of ‘creamy layer’ among OBCs by the States of Bihar and U.P. reveals that they had put some additional conditions for exclusion than what guidelines in Mandal case desired. The additional requirements put by the two States were that such person should draw a salary more than Rs.10, 000 or more per mensum, the wife and husband be graduate and one of them owing house in urban area. In case of professionals as income of Rs.10 lakh per mensum was fixed as criterion. It further provided that the wife or husband should at least graduate and the family owns immovable property of the value of at least Rupees 20 lakhs.

Similarly, the criteria regarding traders, industrialists, agriculturists and others was very high e.g. for industrialist it was required that they might have invested Rs.10 crores for at least 5 years and spouse was at least graduate, for agriculturalists, an income of Rs.10 lakhs in year from sources other than agriculture and graduation of spouse was essential, for any other person to mention the above categories, the income from all sources required for continuously 3 years was fixed at not less than Rs.10 lakhs, graduation of spouse and immovable property worth Rs.20 lakhs.

In this case Supreme Court held that having regard to the observations made in Indra Sawhney-I, the said criteria were ultra-vires. This is vehemently commented that the State Government should follow the Government of India and in down similar criteria for identifying the ‘creamy layer’. In this background criteria for identifying the ‘Creamy layer’ laid down by the State of Bihar and Uttar Pradesh has to be examined³³. Majority view laid down three conclusion³⁴ in the said case: first; Means Test are imperative to skim off the affluent sections of the BCs; second; only the most deserving – the weakest section among the SEBCs should be given the benefit of reservation, and third; identification of the OBCs under Article 16(4) can be made solely on the basis of economic criterion.

This court authoritatively lay down that the prosperous part of a backward class called ‘creamy layer’ has to be excluded from the said class. The backward class under Art.16 (4) means the class which has no element of ‘creamy layer’ in it. It is mandatory under article 16(4) that the State must identify the ‘Creamy Layer’ in a backward class and thereafter creamy layer are to be excluded and benefits of the Article 16(4) could only be given to the ‘class’ which remains after the exclusion of the ‘Creamy Layer’.

In II Indra Sawhney V/S Union of India³⁵ case validity of sec.3, 4 and 6 of Kerala State Backward Classes (Reservation of Appointment or posts in the Services) Act 1995 was challenged as unconstitutional and violative of Art.14 and 16 of Indian Constitution, because sec.3 declared that , “having regard to known facts in existence in the State of Kerala that there are no socially advanced sections in any backward classes who have acquired capacity to compete with forward classes” and the backward classes in the State were not adequately represented” in the services under the State and they would continue to be entitled to reservation under clause (4) of Article 16 of the Constitution. Sec. 4 provides that existing system of reservation shall continue as per rule made in 1958 and sec. 6 provides validity to the enforcement of these sections with retrospective effect. This Act was passed on 2.9.95 but was given retrospective effect since 2.10.1992.

Following issues were arises for the consideration of the Court in this case;

What is the law declared and what are the directions given in Indra Sawhney case in regard to ‘creamy layer’ in the context of Article 14 and 16?
Can the declaration of law in regard to ‘creamy layer’ in the context of article 14 and 16 in Indra Sawhney and in other rulings be undone by the Kerala Legislature by a reproductive validating law containing a statutory declaration whose effect is to say that no ‘ creamy layer’ exists in the state of Kerala?
Are the provisions of Sec 3, 4 and 6 of the Kerala State of backward classes (Reservation of Appointments or Posts in the Services) Act violative of Art.14 and 16 of the Constitution of India?
If the provisions of 3, 4 and 6 of the Kerala Act are liable to be struck down, is the report of High level Committee headed by Justice K.J. Joseph to be accepted and are there any valid objections to the report?
If sec.3, 4 and 6 of the said Kerala Act struck down, what further directions are to be issued to the State of Kerala?

First of all before considering various issue Gannadha Rao, J. said that since Kerala Government failed to implement the directions of Indra Sawhney I case³⁶by appointing a commission to identify the creamy layer among the designated backward classes in the State. This court, by its order dated 10.7.1995 held that the State of Kerala was guilty of contempt but gave an opportunity to the State to purge the contempt and adjourned the matter 11.09.1995. As per the direction of this court a high level committee under the chairmanship of K. J. Joseph was appointed to gather the necessary information regarding ‘creamy layer’ among the backward classes in the State of Kerala. This committee submitted its report to this Court on 4.8.1997.

Regarding first issue Supreme Court with view of Gannadha Rao, D.P. Wadhwa and M.B. Shah, JJ., held that although reservation is permissible in favour of backward class of citizens if it is not adequately represented in the services under the State. But the ‘caste’ only cannot be basis for reservation. Reservation can be for a backward class citizen of a particular caste. Therefore from that caste, creamy layer and non - backward class of citizens are to be excluded. If the caste to be taken into consideration then for finding out socially and economically backward class, creamy layer of the caste to be eliminated for granting benefit of reservation, because the creamy layer cannot be termed as socially and economically backward³⁷. This question exhaustively dealt with by nine judges in Indra Sawhney case³⁸, where it has been specifically held that ‘only caste’ cannot be the basis for reservation.

He further pointed out that, periodic examination of a backward class would lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is not acceptable³⁹. In any case, the ‘creamylayer’ has no place in the reservation system. If creamy layer among backward classes is not excluded, the benefits of reservation will not reach the really backward. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward for ever⁴⁰.”

Regarding question relating to ‘creamy layer’ majority judgment laid emphasis on the relevance of caste and also stated upon a member of the backward class reaching an “advanced social level or status”, he would no longer belong to the backward class and would have to be weeded out. “After excluding them alone, would the class be compact class. In fat, such exclusion benefits the truly backward”.

It is clearly appears from the judgments of the eight judges, viz Jeevan Reddy (for himself and three others), Sawant and Sahai, specifically refer that the persons in higher services like IAS, IPS and All India services …… are declared not entitled to be treated as backward. They are to be treated as creamy layer “without further inquiry.” Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status and therefore outside the Backward Class. This judgment also refers to a classification of ‘affluent” sections identified by way of income or property holding. It means those persons holding higher levels of agricultural land holdings or getting income from property, beyond a limit have to be excluded from the backward classes. This is a judicial ‘declaration’, although, ‘norms may differ from State to State or from region to region⁴¹.”

The identification of ‘creamy layer’ in every backward class is in fact based upon horizontal division of every section of the backward class into creamy layer or non - creamy layer. It is also important to notice that such a horizontal division based on such norms will be applicable not only to those presently falling under the norm but the norm or limit so set would also be applicable to those reaching that level in the future. The Central and State Governments, under the direction of Indra Sawhney case are obliged to create separate bodies which will identify the creamy layer in the backward classes within a time frame⁴². Issue one decided accordingly.

Regarding validity of Kerala Act (Issue second and third) it is held that, the ‘creamy layer’ in the backward class is to be treated ‘on par’ with the forward classes and it not entitled to benefits of reservation, it is obvious that if the ‘creamy layer’ is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again non - exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) since unequal (the creamy layer) cannot be treated as equals that is to say, equal to the rest of the backward classes. Thus any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Article 14 and 16 (1) and also of Article 16(4)⁴³.

The question of validation arises in the context of sec. 6 of the Act. It is true that whenever legislative or executive action declared as being violative of the provisions of part III of the Constitution, it will permissible for the executive or legislature to remove the defect which is the cause for discrimination prospectively. The defect can be removed retrospectively too by legislative action and the previous actions can also be validated. In the context of the law laid down in Ashoke Thakur & Indra Sawhney case⁴⁴ if the State does not take steps to remove the defect to exclude the ‘creamy layer’ from the backward classes then the benefits of reservations which are invalidly continued in favour of the ‘creamy layer’ cannot be declared retrospectively valid merely by a legislative declaration that such creamy layer is absent as done by section 3 ( there was no creamy layer in the state of Kerala ) & sec. 6 of the Kerala State Backward Classes (Reservation of Appointments or Posts in Services) Act. The creamy layer principle laid down in Indra Sawhney case, cannot be ignored as done by Sec.6 of the said Act. Therefore both the sections are unconstitutional. If under the guise of elimination of the ‘creamy layer’, the legislature makes a law which is not indeed a true elimination but is seen by the court to be a mere cloak, then the court will necessarily strike down such a law as violative of principle of separation of powers and of Art.14, 6(1) and art.16(4)⁴⁵.

Sub- clause (b) of sec. 3 states that since there is no representation of the backward classes in the services of the State of Kerala. This is given as a reason by the State of Kerala for not excluding the creamy layer. For this apex court held that in our view, the Kerala Act has mixed up two different concepts in this sub - clause (b) of s. 3. Art. 16 is an enabling provision which permits the State to provide reservation for backward classes if, in its opinion, such representation is felt necessary and if there is not equate representation⁴⁶. Lack of adequate representation of a particular backward class may be a factor for consideration by the State for providing reservation but it cannot be the sole ground for continuance of the creamy layer in that backward class. The first step no doubt is the identification of the backward class which is inadequately represented. The second step is elimination of the creamy layer from the backward class. And this second step cannot be mixed up with the first step nor can it be forgotten⁴⁷.

The mere inadequate representation of a particular backward class in public services flowing as a consequence of exclusion of creamy layer is not legally sufficient to provide or continue reservation to the creamy layer⁴⁸. Reservation even for backward classes can be made only if it will not undermine the efficiency of the administration in the particular department. For all the aforesaid reasons, sub cls. (b) of sec. 3 does not provide any valid answer for not eliminating the creamy layer and must also be held to be unconstitutional and violative of Art.14, 16(1) and 16(4) of the Constitution. Thus sub - clause (a) and (b) of s. 3 are both declared unconstitutional⁴⁹.

Section 4 of the said Act provides for the continuance of reservation for the backward classes as they stood in 1958 ignoring the directives of this court given in the case of Indra Sawhney 1992 for exclusion of ‘creamy layer’.

Supreme Court held that continuance of Sec. 4 will amount to ignoring the subsequent judgment of this court in Indra Sawhney and Ashoke Kumar case⁵⁰ to the effect that creamy layer is necessarily eliminated. Neither Parliament nor the State legislature can make any law to continue reservation to the creamy layer inasmuch as the said judgment of this court are based on Article 14 and 16(1) of the Indian Constitution and no law can obviously be made to override the provisions of Articles 14 and 16(1). Thus for the aforesaid reasons, sec. 4 of the Act along with the non - obstante clause is declared unconstitutional and violative of the judgment of SC and violative of the Article 14 16(1) and 16(4) of the Constitution of India⁵¹. The non - exclusion of creamy layer or the inclusion of forward castes in the list of the backward classes will, therefore, be totally illegal. It is not only violative of Article 14 and 16 but it also amounts to violative of basic structure of Indian constitution⁵².

Regarding issue forth, it is held that parliament and the legislature cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Art.14 of which Art. 16(1) is a facet. Whether Creamy Layer is not excluded or whether forward castes get included in the; list of backward classes, the position will be the same, namely, that there will be a breach not only of art.14 but of the basic structure of the Constitution. The non - exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will therefore be illegal. Such an illegal Act offending the root of the Indian Constitution, cannot be allowed to be perpetuated even the Constitutional amendment. Kerala legislature is therefore, least competent to perpetuate such an illegal discrimination⁵³.

In the case of Nair Service Society v State of Kerala⁵⁴, the Nair Service Society, challenged the report of Justice K.K. Narendran Commission and its acceptance by the State of Kerala in issuing the impugned notification dated 27.5.2000. Society questioned the validity of the said notification by saying that in the guidelines seven categories of hereditary occupations/calling, which had been excluded from the category of 'creamy layer', have been identified. As regards the income limit in terms of the Joseph Committee Report, (published in 1996) was Rs.1.5 lakhs; whereas the same according to the Narendran Commission Report, (published in 2000) raised to Rs.3 lakhs. While in the year 2004 the Central Government fixed the income limit at Rs.2.5 lakhs. In identifying the backward classes in several categories, i.e. category Nos. I, II, III, V and VA, the exclusion was recorded only on the basis of status and not on the basis of annual income. However, in addition to category No.VI, it was stated that in calculating the annual income, the salary income or income from agriculture would not be taken into account. No reason, however, has been assigned as to why salary income or income from agriculture would not be included for determining the category of 'creamy layer'.

Supreme court (with bench of S. B. Sinha & P. P. Naolekar) said that, at this stage it is necessary to be noticed that by judgment and order dated 13.12.1999⁵⁵ in 'Indra Sawhney case -II', this Court, hold the provisions of Sections 3, 4 and 6 of the State Act to be unconstitutional, and accepted the objections to the report of the Joseph Committee, in toto, subject to certain additions of communities and sub-castes. The recommendations made by the Joseph Committee, however, were not implemented forthwith in terms of the directions of this Court. The State, on the other hand, appointed another Commission headed by Justice K.K. Narendran. The Narendran Commission submitted an interim report and directed the State to implement the report of the Joseph Committee. On 16.2.2000 the State issued fresh guidelines for identifying creamy layer in accordance with the Joseph Committee report. The Commission submitted its final report on 11. 4. 2000. The order issued by the State on 27 .5. 2000. The notification issued on dated 12.6.2000 wherein several guidelines were issued, which, inter alia, are on the following terms:

" The rule of exclusion made mention in the schedule attached to these guidelines will not apply to persons working as artisans or engaged in hereditary occupations, calling and included in Annexure 'B' appended herewith and person/group of persons coming within the definition of the expression "Fishermen Community" in Annexure C appended to these guidelines”.

With the view of justice Sinha, apex court observed, that in any view of the matter, when the question of such grave importance has been brought to the notice of this Court, having regard to the principle underlying the purport and object for which the 'creamy layer' was sought to be excluded, this Court cannot shut its eyes and refuse to determine the question.

The concept of identification of 'creamy layer' came up for consideration in Indra Sawhney-I⁵⁶ and this Court has issued certain directions in this behalf. The State of Kerala did not follow the said direction as a result whereof it was found to be guilty of contempt of this Court. A stern action thereupon was proposed to be taken up against the State of Kerala in view of its contemptuous conduct, as is evident from the order of this Court in Indra Sawhney vs. Union of India & Ors⁵⁷. It was in the aforesaid conditions, the legislation passed by the legislature of Kerala was not only struck down during the pendency of the proceedings by this Court, and a Committee was also directed to be constituted. We have noticed hereinbefore that the recommendations of the Joseph Committee were accepted in toto. We have furthermore noticed that the State, without any demur, accepted the recommendations thereof with modification by addition of one caste or sub- caste. It is, therefore, difficult for us to appreciate as to on what basis Narendran Commission was appointed. It is, furthermore, difficult for us to understand as to on what basis, while appointing Narendran Commission, in the terms of reference, the State of Kerala could say that the maximum benefit should be given to a particular section of people.

Keeping in view the legal history, as also the directions made by this Court in a series of judgments referred to hereinbefore, it was obligatory on the part of the Narendran Commission to consider seriously that aspect of the matter. In any event the same could not have been ignored. While fixing the income limit, although a State is entitled to take into consideration the level of literacy, the village income, the rise of living index, the rate of inflation and other relevant factors into consideration, it should not have accepted a report of the Committee which did not proceed scientifically, particularly, having regard to the constitutional scheme as explained by the Court in the judgments referred to hereinbefore. We, therefore, do not find any justification for fixing the income limit at Rs.3 lakhs.

Equality clauses contained in Articles 14, 15 and 16 of the Constitution of India may in certain situations constitute the heart and soul of the Constitution of India. When a law is patently arbitrary, such infringement of the equality clause contained in Article 14 or Article 16 would be violative of the equality clause of the Constitution. Following the decision of M.Nagaraj and Ors. v. Union of India and Ors⁵⁸ case where apex court has reaffirmed the importance of the creamy layer principle in the scheme of equality under the constitution, this Court held that the creamy layer principle was on of the important limits on state power under the Equality Clause enshrined under Articles 14 and 16 and any violation or dilution of the same would render the state action invalid. This Court reiterated the limit on state power imposed by the creamy layer rule and the invalidity of any state action in violation of the same. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the constitutional scheme. The State did not accept even the Narendran Commission report in its entirety. Accordingly, notification dated 27th May, 2000 being merely for notification of general public and the guidelines issued for the concerned officers, it is necessary that the State should amend the guidelines also.
Supreme court finally held, while fixing the income limit, although a State is entitled to take into consideration the level of literacy, the village income, the rise of living index and other relevant factors into consideration, it should not have accepted a report of the Committee which did not proceed scientifically, particularly, having regard to the constitutional scheme. Supreme Court setting aside the report of the Narendran Commission, directed the State to appoint a fresh Commission.

In the case of Sh. Chander Vijay v/s Union of India & Others⁵⁹ petitioner⁶⁰ filed a petition and seeks a writ of certiorari by quashing notification dated 8.9.1993⁶¹, 28.9.1993⁶² and circular dated 2.2.2001⁶³, in which the petitioner is sought to be excluded from the benefit of the OBCs category as part of the "Creamy layer". Petitioner also seeks a writ of mandamus, directing the respondents to issue forthwith OBCs certificate for the year 2002 for the Civil Services Examination, conducted by UPSC. It is argued that the crux of the controversy is the exclusion of the petitioner under the notification, issued by the Central Government and the State Government, insofar as they relate to the service category on the ground that the father of the petitioner had retired as a Class I Officer. Petitioner thus formed part of the "Creamy Layer" and was not entitled to the benefit of the OBCs.

The Governor of Rajasthan issued an order⁶⁴ that 21% of the vacancies in posts and services under the State Government, to be filled through direct recruitment, shall be reserved for the castes and classes included in the list of Backward Classes⁶⁵. But Candidates belonging to Backward Classes recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 21%. The aforesaid reservation shall not apply to persons / sections mentioned, as creamy layer, in Column 3 of the schedule annexed to this notification.

The Schedule annexed with this department's notification⁶⁶ specifically mentioned such persons / Categories of persons who will not be entitled (excluded) for the benefit of reservation of Other Backward Classes. With respect to 'CONSTITUTIONAL POSTS' it has been prescribed that the Rule of Exclusion will apply to persons holding Constitutional positions like President of India, ........and "persons holding Constitutional positions of like nature". In this regard clarification⁶⁷ has been sought as to whether Ministers in the State Government would fall under the category of “Persons holding Constitutional positions of like nature" and the rule of exclusion will apply to their sons and daughters. The clarification is made as Ministers of the State Government are Constitutional functionaries but their tenure being temporary and often transitory so they are not supposed to have shed backwardness in such short periods. Therefore, the Rule of Exclusion will not apply to the sons and daughters of Ministers since their parents do not fall in Category of the Schedule.

It is also clarified that the Rule of Exclusion will apply in the case of sons and daughters of the offices enumerated in the "SERVICE CATEGORY" even after they retire on superannuation. Therefore, retirement on superannuation of the specified category of officers has no effect on their offspring, who are once defined as "Creamy Layer."

These clarifications may be brought to the notice of all concerned and they may be directed to take action accordingly. Judiciary held that the words "is" and "are" in the notifications dated 8.9.1993 and 29.9.1993 are not to be interpreted as being confined to only those persons who were presently holding the posts and are also to include persons who have held such posts mentioned therein. The petitioner is not entitled to the relief sought in the writ petitions. No ground is made out to assail the validity of the impugned notifications. Considering the interpretation given to the words "is" and "are” in the notifications, resort to the circular dated 2.2.2001 was not even necessary. In any case the clarification given in the circular is also in consonance with the interpretation given to the words used in the notification by this Court. Hence challenge to the validity of the circular dated 2.2.2001 also fails. Manmohan Sarin, J. held that the writ petitions have no merit and are dismissed.

Regarding constitutional validity of the Creamy Layer concept- it is said that when Indian Constitution does not mentions about the concept of "creamy layer’’ and nowhere does it prescribe any directive to exclusively discriminate OBCs, the exclusion of creamy layer leads to undermining the constitution itself. Since "socially backward" and "educationally backward" were the key words enshrined after thorough deliberations and the "economic criterion" (cream concept) can never be a criterion in determining reservation policy. Nevertheless, the Supreme Court and its constitutional bench have decided to give sanctity to a concept that they themselves invented during the course of mandal commission implementation.

In 2006 when central Government wants to give reservation for OBCs in Central Educational Institutions like IITs, Management( IIMs) and medical institutions ( like AIMS) for the implication of The Central Educational Institution( Reservation in Admission) Act 2006, without exclusion of ‘creamy layer section’ among the Backward class, it was apposed and challenged in the Apex court of India in Ashoke Kumar Thakur v/s Union of India⁶⁸, government take the plea that concept of creamy layer is applicable only in case of job reservation not in case of reservation in admission in educational institutions. But Supreme Court laid down that it permits reservation for socially and educationally backward classes in the State or State-aided educational institutions subject to the exclusion of the ‘creamy” layer from the OBCs. Thus concept is very well applicable to admission in educational institutions also as it is available under Article 15(5) not under under Article16(4) as it provides reservation in job. As noticed ealier, determiniation of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination for determination of backwardness. It has been noticed that among the backward class, a a section of the backward class is a member of the affluent section of society. They do not deserve any sort of reservation for further progress in life. They are socially and educationally advanced enough to compete for thr general seats along with other candidates⁶⁹.

It is to be understood that “ creamy layer’ principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of backward class. If the“ creamy layer’ principle is not applied easily be said that all the castes that have been included among the socially and educationally backward classes have been included exclusively on the basis of caste. Identifacation of SEBC for the purpose of either Article 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of this court and it is also against Artcile 15(1) and Article 16(1) of the constitution. To fulfill the conditions and to findout truly what is socilly and educationally backward class, the exclusion of creamy layer is essential⁷⁰.

It may be noted that the ‘creamy layer principle’ is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of “creamy layer’ is necessary⁷¹.

Justice pasayat Thakker and Bhandari held that non-exclusion of creamy layer from the list of backward classes will not only breach Art. 14 but also violate the basic structure of the Constitution. Hence ,the implied inclusion of the creamy layer among SEBCs /OBCs in Art. 15(5) is severed⁷².

Thus issue of Creamy layer formula is one which relates to evaluation of compensatory discrimination. Compensatory discrimination policies are argued to entail systematic departure from norms of equality such as merit, evenhandedness and indifference to ascriptive characteristics. Creamy layer formula, therefore, does not amount to taking away by one hand what has been given by the other.

Every scheme of Compensatory discrimination has to be evaluated in terms of costs and benefits. The observation of the D.A. Desai, J. in K. C. Vasanth Kumar V/s State of Karnataka⁷³ case is representative of the case against creamy layer of OBCs, of course his statement about reservation are limited to state of Karnataka where state reservational scheme was in operation and not the national policy of reservation for OBCs. The learned judge said, “Reservation in one or other form has been there for decades. If a survey is made without reference to families in various castes considered to be socially and educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefit of reservation are snatched away by the top creamy layer of the backward castes. This has to be avoided at any costs⁷⁴.”

Desai, J. talked of skimming off from all beneficiaries of reservational justice. Though, he did not allow economic criterion for qualifying for reservational benefits by the SCs / STs as the thousands of years of discrimination or exploitation can not be wiped put in one generation. But even here (in case of SCs / Sts) economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position⁷⁵. Thus creamy layer formula ought to have been applied to all the beneficiaries of protective discrimination - SCs / STs / OBCs.

The real issue is: what is main guiding spirit behind the adoption of ‘creamy layer formula’. The obvious objects are two fold – first, to ensure (in principle) that the benefit of reservation reaches to really deserving section of OBCs, and - Second, to cool down impatient anti reservationists and cure their heart - burning against enrichment of affluent section of backwards.

It is argued, will skimming off creamy layer among OBCs ensure the reaching of benefits to non - creamy layer of OBCs? The hard reality is that the desired percentage of reservation for SCs / STs has still not been filled in. In class one services their representation has reached upto 5.68% as against their 22.5% quota and in all class (II, III and IV also) it has reached upto 18.72%. This percentage of reservation is inclusive of the creamy layer. What will be result if creamy layer is taken away from reservational benefit? Will not it tender the representation to a poor zero from 5.68% in class I? The same analogy applies with equal force to OBCs (the Supreme Court itself has left SCs /STs unaffected by creamy layer formula). The representation of OBCs with 52% population and 27% reservation of seats had only 4.69% representation to class I till 1980 and 12.55% in all services. If creamy layer is taken away, will the non - creamy layer be able to compete and fill 27% vacancies? Will it not amount to a circuitous deprivation of reservational justice to backward class in collectivity? In mandal case Pandian J. cited that the representation of backward classes is not upto mark and is miserable low. To allow creamy layer to go out of reservational benefit would amount to taking away by one hand what has been given by the other. The only justification for denial to the creamy layer of the reservational benefit is he cooling down of the heart – burning among status quoists.

In Mandal Report it was observed that: “it is certainly true that reservation for OBCs will cause a lot of heart burning to others. But should the mere fact of this heart - burning be allowed to operate as a moral veto against social reform”. Thus the ‘creamy layer formula’ needs a cool and empirical study. It is not easy for anybody to answer the question posed by Chinnappa Reddy, J. in vasanth Kumar’s case; how can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?⁷⁶”.

CONCEPT OF CREAMY LAYER - A POLITICAL APPROACH (POLICY)

When Supreme Court in Indra Sawhney case⁷⁷ approved O.M. of 1990 as valid with the exclusion of the elite classes which considered as Creamy Layer (socially and educationally advance) among backward class, all parties welcomed the 27% reservation to socially and educationally backward communities (OBCS). But the concept of creamy layer has varied responses from various political formations. It has mexed reaction. Some political parties and State Government/ central government were uncomfortable with the rigid criterion for the creamy layer concept although everyone is pleased that 27% quota has got legal sanctity. Although to implement the creamy layer formula in reservation policy most of several state governments have come foreword with clean hands or intention except some state e.g. Bihar, Uttar Pradesh, Kerala etc., it clears from above discussion.

The State of Kerala has shown reluctance or unwillingness to adopt the creamy layer formula to oust a section of OBCs from reservation ambit. Because Kerala, Government had express its stand to continue the existing system of reservation in Government jobs irrespective of whether or not ‘creamy’ sections of backward communities have been concerning most of the benefits to the determent of their own downtrodden men. Accordingly, Backward Class (Reservation of Appointment or Posts in Services under the State), Act, 1995⁷⁸ has been enacted for providing the continuance of the reservation system of 1958 in the State and gave retrospective effect also. At the time of introducing the Bill Kerala Law Minister K.M. Mani said that in piloting the Bill, “it might be true there is a Creamy Layer among the Backward Class in other States. In Kerala, it is not true.” While CPI (M) hold the view that creamy layer formula should be implemented with sufficient modifications that if there are not enough candidates among the poor in the backward communities, rich in those communities should be allowed to take benefits. But in no circumstances should the benefits meant for the backward classes be transferred to the forward classes - rich poor. The Supreme Court, on 11.09.1995⁷⁹expressed its displeasure over the delay in implementation of Mandal verdict’s formula by the Kerala Government and moved to start contempt proceeding against the Chief Secretary of the State for non- implementation of creamy layer formula. And accordingly Act held void and unconstitutional. Again in Nair Service society v/s Union of India case⁸⁰, Supreme Court set aside the recommendation of Narendran Commission as inconsistent with Central Government’s guidelines.

Regarding the criteria to determine the creamy layer amongst OBCs O.M. of 8^th September, 1993⁸¹ created a lot of bewilderment or confusions. To clarify the confusions Government of India issued, another O.M. on 14^th October, 2004⁸² to follow by all the States / Union Territories.

Above description shows, that governments are not in much enthusiastic to apply creamy layer rule sincerely and honesty. In the Rajya Sabha on Mar 16 2004, Prime Minister Atal Behari Vajpayee Prime Minister conceded that there has been delay in constituting the review committee⁸³ while the last committee was constituted in 1993. He assured that the Government will soon constitute a review committee to determine the criteria for the creamy layer concept with regard to eligibility for reservations. After Mandal Verdict during last 12 year (i.e.1993 to till day 2010) only two revision (in 2004, 2008) has been made. By which income limit has been increased up to 4.5 lakh for the exclusion of Creamy layer.

In the state of U.P. there is no periodical revision of creamy layer formula or reservation scheme. Nobody bother to check and verify creamy layer certificates. Attitude of political parties is to ignoring implementation of Creamy layer because they do not want to loose their vote bank of OBCs. As we know that Mulayam Singh government for the lust of vote bank, convert 16 other backward castes into Scheduled Caste and Scheduled Tribe. Although this order is challenged in Allahabad Court and court stayed its implementation.

As a conclusion it could be said that the argument for exclusion of ‘creamy layer’ on the face of it appears to be attractive and reasonable. No body can dispute that the pseudo (artificial) communities who have smuggled into the backward classes should be weeded out from the list of backward classes but that should be done by the government at appropriate time after due empirical study. Finally it is submitted that scheme of creamy layer is good but implementation is very poor in almost all the state as well as in central. Nobody came to deal with this scheme with clean hand.

REFERENCES

1. Article 13 Laws inconsistent with or in derogation of the fundamental rights ,(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void ,(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void ,(3) In this article, unless the context otherwise requires law includes any ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas ,(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

2. Policy - a definition” unknown author http://biz.map.com/e17a.html

3. K.C. sunny, Creamy Layer Principle: Its social Relevance and legal Consequences, ALR1999, vol.23:1&2, p.135.

4. Art. 16(4), Nothing in this article shall prevent the state from making any provision for the reservation of appointment or post of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

5. AIR 1993 SC 477.

6. Indra Sawhney v/s Union of India, AIR 1993 SC 477. Supreme Court tries to define "creamy layer" by quoting an office memorandum of September 8, 1993.

7. N. Sattanathan was chairman of the first Tamil Nadu backward Classes Commission constituted in 1969 in the regim of DMK Government under M.Karunanidhi. one of it’s recommendation was an income limit to prevent the accumulation of reservation benefits by an “upper crust”. Although it was first accepted then withdrawn.

8. The income ceiling for creamy layer rose from 2.5 lakhs to 4.5 lakhs in October 2008 by O.M. of 10 October 2008.

9. Indra Sawhney v/s Union of India, AIR 1993 SC 477.

10. 1979, 3 SCC 730.

11. AIR 1976 SC 490.

12. Mandal Case, Para 792.

13. (2006) 8 SCC 212

14. (2008) 6 SCC 1.

15. First Chief Justice of India belongs to Scheduled Cast.

16. K. C. Yadav, Flaws in the Creamy Layer Concept, The times of India, 7 October 1993, p.10.

17. The Times of India, March 12, 1993, p.3.

18. AIR, 1985, SC, 1495.

19. Mandal Case, p 428 (Para 792).

20. Ibid, p.429.

21. Mandal Case, p. 257. (Para 520)

22. Ibid.

23. Ibid.

24. Ibid, p.159 (Para 295).

25. Ibid, p.196.

26. Ibid, p.128.

27. Ibid at p.586 Para 121(3) (d).

28. Ibid at Para 86, 121(3) (d), 450,451.

29. Ibid at Para 700,694.

30. Ibid at Para 662.

31. Annexure enclosed.

32. AIR, 1996 SC 75, p.421

33. Ibid at Para 10-11.

34. Mandal case, Para 385, 386.

35. AIR 2000, SC, 498.

36. AIR 1993 SC 477.

37. Ibid at Para 8.

38. AIR 1993 SC 477

39. AIR, 1992, SCC, 174.

40. AIR 2000 SC p.505 Para10.

41. Ibid at Para 22-23

42. Ibid at Para 25.

43. Ibid at Para 27.

44. AIR, 1996 SC 75, p.421, AIR 2000, SC, 498.

45. Ibid at Para 28-29.

46. Ajit Singh II v. State of Punjab 1999 7 SCC 209.

47. Ibid at Para 45.

48. Ibid at Para 49 and 54.

49. Ibid at p. 516 Para 55, 56.

50. AIR, 1996 SC 75, p.421, AIR 2000, SC, 498

51. Ibid at Para 60-61.

52. Ibid at Para 66-67.

53. Ibid at Para 66, 67.

54. 2007 (4) SCC 1,

55. AIR 2000, SC, 498

56. AIR, SC 1993,477

57. 2006 (8) SCC 212.

58. Ibid.

59. W.P. (C). No. 1085 /2003, High Court of Delhi decided on July 6, 2004 on subject of Reservation for OBC: Creamy Layer.

60. Petitioner appeared and qualified for the Central Civil Service Examination 2002, Petitioner being a `Jat' by caste and a resident of Rajasthan had applied for issuance of the Other Backward Class Certificate (OBC) Category. This certificate had been denied. Petitioner qualified even in the general category with a rank of 127. Petitioner's case is that he is entitled to the OBC Certificate and upon the same being granted, his ranking would go up and he would get a better posting.

61. See annexure A.

62. See annexure B.

63. See Annexure C.

64. Notification dated 28.9.1993.

65. As notified vide Social Welfare Department Notification No.F.11 (125) R&P/SWD/46631, dated 27th August, 1993, published in Rajasthan Gazette, Extra-ordinary dated Ist September, 1993.

66. No. F 9 (8) DOP/A-V/90 dated 28.9.1993.

67. Circular dated 2. 2. 2001.

68. (2008) 6 SCC 1

69. Ibid, (Balakrisnan, C.J. Paras 165 & 168)

70. Ibid,(Balakrisnan, C.J. Paras 170 , 171, 176,226 & 234)

71. Ibid,(Balakrisnan, C.J. Paras 170 & 171),

72. Shortnote Q of (2008) 6 SCC 1, Ashok Kumar Thakur v/s Union Of India..

73. AIR 1985 SC 1495.

74. Ibid at p.1506 (Para 28).

75. Ibid at p.1507 (Para 31).

76. AIR 1985 SC 1495 at p.1525 (Para 72).

77. AIR 1993 SC 477.

78. Krishna Kumar, creamy prospects, Frontline, Oct.6, 1995.

79. Ind Indra Sawhney case, AIR 2000 SC 477.

80. 2007 (4) SCC 1, The Judgment was delivered by hon'ble justice s. B. Sinha.

81. O. M. No. 36012 / 22/ 93 - (SCT.

82. See appendix- O.M.No.36033 /5 / 2004-Estt. (Res), Government of India, Ministry of Personnel, Public Grievances & pensions department of Personnel &Training, 14oct.2004.

83. In mandal verdict it is directed to central as well as state government to review its scheme of creamy layer after every three year.

Judicial Activism And Public Interest Litigation In India

Sun, 20 May 2012 07:26:35 +0530

INTRODUCTION

INTRODUCTION

Public Interest Litigation: The words `Public Interest' mean "the common well being also public welfare (Oxford English Dictionary 2nd Edn. Vol.Xll) and the word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy." Thus, the expression `Public Interest Litigation' means "some litigations conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means. any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Akhil I3/taratiya Sos/ail Karnuu:hari Sangh (Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redrcssal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).

Judicial Activism: The expression `Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation.

Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice. equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles' rules evolved by the Judge; during judicial pronouncements. Hence. the common law is also known as the 'Judge-made-law:' The courts of Equity / Chancery played significant role in formulating the new piles of tart. The common law originated in England was spread in British Colonies including India. In India, almost all laws are originated ham the fairish Common law. In the absence of existing rules for relief in certain cases and predictive procedure, the court' of equity or chancery took the initiative to draw up new rules. 'The new rules to settle the conflicting positions that had arisen in certain cases is called 'Judicial Activism'. The equity court- and common law courts were merged with the passing of the Judicature .Act, I875.

Judicial Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The doctrine of separation of powers was propounded by the French Jurist, contesqeu. It is partly adopted tit India since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The three organs of the Government viz. the Executive. Legislature and the Judiciary are not independently independent but inter-dependently independent. (The executive encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by file legislature pat lament and the legislature also ,intervenes in respect of impeachment of the president).

As stated earlier, the Judicial Activism tit India can he witnessed with reference to the review power of the Supreme Court under Art. 226 of the Constitution particularly in public interest litigation cases. The Supreme Court played crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc.

Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. Eg.: Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc.

Public Interest Litigation and Judicial Activism: Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned. The traditional rule of "Locus Standi" that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition:

1. in Supreme Court under Art.32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec.133, Cr. P.C.

Justice Krishna layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the following reasons for liberalization of the rule of Locus Standi:-

1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals' rights.
2. Social justice wan ants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
4. “Activism is essential for participative public justice".

Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the public.

Further, the Supreme Court in S.P. Gupta vs. Union of India. (AIR 1982 SC 149), popularly known as “Judges’ Transfer Case”, Bhagwati J . firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions were filed.

ORIGIN AND DEVELOPMENT OF PUBLIC INTEREST LITIGATION IN INDIA

It should be noted at outset that PIL, at least as it had developed in India, is different from class action or group litigation. Whereas the latter is driven primarily by efficiency considerations, the PIL is concerned at providing access to justice to all societal constituents. PIL in India has been a part of the constitutional litigation and not civil litigation.^¹ Therefore, in order to appreciate the evolution of PIL in India, it is desirable to have a basic understanding of the constitutional framework and the Indian judiciary.^² After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular democratic republic’’.^³Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity).^⁴ These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution.^⁵ The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘‘conscience of the Constitution’’.^⁶

In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. Part III of the Constitution lays down various FRs and also specifies grounds for limiting these rights. ‘‘As a right without a remedy does not have much substance’’,^⁷ the remedy to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also been made a FR.^⁸ The holder of the FRs cannot waive them.^⁹ Nor can the FRs be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution.12 Some of the FRs are available only to citizens^¹⁰ while others are available to citizens as well as non-citizens,^¹¹ including juristic persons. Notably, some of the FRs are expressly conferred on groups of people or community.^¹² Not all FRs are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.^¹³ Even the ‘‘state’’ is liberally defined in art.12 of the Constitution to include, ‘‘the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India’’.

The expression ‘‘other authorities’’ has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit.^¹⁴ The DPs find a place in Pt IV of the Constitution. Although the DPs are not justiciable,^¹⁵ they are, ‘‘nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’’.^¹⁶

After initial deviation,^¹⁷ the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justiciable: rather FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter.^¹⁸ The issue was put beyond any controversy in Minerva Mills Ltd v Union of India where the Court held that the, ‘‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’’.^¹⁹ Since then the judiciary has employed DPs to derive the contents of various FRs.^²⁰

The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’.^²¹ An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts^²² —the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism.^²³

Judicial moulding of standing, procedure, substance and relief

Two judges of the Indian Supreme Court (Bhagwati and Iyer JJ.)^²⁴ prepared the groundwork, from mid-1970s to early 1980s, for the birth of PIL in India. This included modifying the traditional requirements of locus standi, liberalising the procedure to file writ petitions, creating or expanding FRs, overcoming evidentiary problems, and evolving innovative remedies.^²⁵

Modification of the traditional requirement of standing was sine qua non for the evolution of PIL and any public participation in justice administration. The need was more pressing in a country like India where a great majority of people were either ignorant of their rights or were too poor to approach the court. Realising this need, the Court held that any member of public acting bona fide and having sufficient interest has a right to approach the court for redressal of a legal wrong, especially when the actual plaintiff suffers from some disability or the violation of collective diffused rights is at stake. Later on, merging representative standing and citizen standing, the Supreme Court in S.P. Gupta v Union of India held^²⁶: ‘‘Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right . . . and such person or determinate class of persons is by reasons of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ.’’

The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged sections of society.^²⁷ Furthermore, the Supreme Court observed that the term ‘‘appropriate proceedings’’ in art.32 of the Constitution^²⁸ does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do.^²⁹ This interpretation allowed the Court to develop epistolary jurisdiction by which even letters or telegrams were accepted as writ petitions.^³⁰ Once the hurdles posed by locus standi and the procedure to file writ

petitions were removed, the judiciary focused its attention to providing a robust basis to pursue a range of issues under PIL. This was achieved by both interpreting existing FRs widely and by creating new FRs. Article 21—‘‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’’—proved to be the most fertile provision to mean more than mere physical existence^³¹; it ‘‘includes right to live with human dignity and all that goes along with it’’.^³²

Ever-widening horizon of art.21 is illustrated by the fact that the Court has read into it, inter alia, the right to health, livelihood, free and compulsory education up to the age of 14 years, unpolluted environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and various rights of under-trials, convicts and prisoners. It is important to note that in a majority of cases the judiciary relied upon DPs for such extension. The judiciary has also invoked art.21 to give directions to government on matters affecting lives of general public, or to invalidate state actions, or to grant compensation for violation of FRs. The final challenge before the Indian judiciary was to overcome evidentiary problems and find suitable remedies for the PIL plaintiffs. The Supreme Court responded by appointing fact-finding commissioners and amicus curiae.^³³ As in most of the PIL cases there were no immediate or quick solutions, the Court developed ‘‘creeping’’ jurisdiction thereby issuing appropriate interim orders and directions.^³⁴ The judiciary also emphasised that PIL is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realise the human rights of disadvantaged sections of society.^³⁵

The debate over label: PIL or social action litigation?

Given that the birth of PIL in India was connected to the evolution of PIL in the United States, it was natural for scholars to draw comparisons between the US experience and the Indian experience.^³⁶ One result of this comparison was that it was argued that PIL in India should be labeled as social action litigation (SAL). Baxi was the key scholar who mooted for such indigenous labelling of PIL because of its distinctive characteristics. He contended that whereas PIL in the United States has focused on ‘‘civic participation in governmental decision making’’, the Indian PIL discourse was directed against ‘‘state repression or governmental lawlessness’’ and was focused primarily on the rural poor. Writing in the early 1980s, Baxi highlighted another contrast: that unlike India, PIL in the United States sought to represent ‘‘interests without groups’’ such as consumerism or environment.

At least two comments could be made about the desire to designate PIL as SAL. First, the term ‘‘social action’’ probably implied the role that law could/should play in social engineering. However, considering that in PIL cases judges (rather than the legislature) play a key role and the law is judge-made law, one should not over-estimate what courts could deliver through PIL/SAL in a democracy. No doubt, courts could help in providing an official recognition to the voices of minorities or destitutes that might be ignored otherwise, but it would be unrealistic to expect that they could achieve social transformation on their own.

Secondly, as we will note in the next section, the character of the PIL in India has changed a lot in the second phase in that now it is not limited to espousing the interests of disadvantaged sections of society or to redressing state repression and governmental lawlessness. In fact, in the second phase, the focus of PIL in India has shifted from poor to the middle class and from redressing state exploitation of disadvantaged groups to pleas for civic participation in governance. Although there are still differences between how the PIL jurisprudence has unfolded in the United States and India, the distinction as to the subject-matter or the basic objective of the PIL is not that much as it used to be when an argument was made to label PIL as SAL.

The three phases of PIL

At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in my view, into three broad phases.^³⁷ One will notice that these three phases differ from each other in terms of at least the following four variables: who initiated PIL cases; what was the subject matter/focus of PIL; against whom the relief was sought; and how judiciary responded to PIL cases.

In the first phase—which began in the late 1970s and continued through the 1980s—the PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of FRs under the Constitution. During this phase, the judiciary responded by recognising the rights of these people and giving directions to the government to redress the alleged violations. In short, it is arguable that in the first phase, the PIL truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution.

The second phase of the PIL was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The breadth of issues raised in PIL also expanded tremendously—from the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and the general accountability of the Government. It is to be noted that in this phase, the petitioners sought relief not only against the action/non-action of the executive but also against private individuals, in relation to policy matters and regarding something that would clearly fall within the domain of the legislature. The response of the judiciary during the second phase was by and large much bolder and unconventional than the first phase. For instance, the courts did not hesitate to come up with detailed guidelines where there were legislative gaps. The courts enforced FRs against private individuals and granted relief to the petitioner without going into the question of whether the violator of the FR was the state. The courts also took non-compliance with its orders more seriously and in some cases, went to the extent of monitoring government investigative agencies66 and/or punishing civil servants for contempt for failing to abide by their directions. The second phase was also the period when the misuse of PIL not only began but also reached to a disturbing level, which occasionally compelled the courts to impose fine on plaintiffs for misusing PIL for private purposes.

It is thus apparent that in the second phase the PIL discourse broke new grounds and chartered on previously unknown paths in that it moved much beyond the declared objective for which PIL was meant. The courts, for instance, took resort to judicial legislation when needed, did not hesitate to reach centres of government power, tried to extend the protection of FRs against non-state actors, moved to protect the interests of the middle class rather than poor populace, and sought means to control the misuse of PIL for ulterior purposes.

On the other hand, the third phase—the current phase, which began with the 21st century—is a period in which anyone could file a PIL for almost anything. It seems that there is a further expansion of issues that could be raised as PIL, e.g. calling back the Indian cricket team from the Australia tour and preventing an alleged marriage of an actress with trees for astrological reasons. From the judiciary’s point of view, one could argue that it is time for judicial introspection and for reviewing what courts tried to achieve through PIL. As compared to the second phase, the judiciary has seemingly shown more restraint in issuing directions to the government. Although the judiciary is unlikely to roll back the expansive scope of PIL, it is possible that it might make more measured interventions in the future.

One aspect that stands out in the third phase deserves a special mention. In continuation of its approval of the government’s policies of liberalization in Delhi Science Forum, the judiciary has shown a general support to disinvestment and development policies of the Government.^³⁸ What is more troublesome for students of the PIL project in India is, however, the fact that this judicial attitude might be at the cost of the sympathetic response that the rights and interests of impoverished and vulnerable sections of society (such as slum dwellers and people displaced by the construction of dams) received in the first phase. The Supreme Court’s observations such as the following also fuel these concerns: ‘‘Socialism might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.’’

It seems that the judicial attitude towards PIL in these three phases is a response, at least in part, to how it perceived to be the ‘‘issue(s) in vogue’’. If rights of prisoners, pavement dwellers, child/bonded labourers and women were in focus in the first phase, issues such as environment, AIDS, corruption and good governance were at the forefront in second phase, and development and free market considerations might dominate the third phase. So, the way courts have reacted to PIL in India is merely a reflection of what people expected from the judiciary at any given point of time.

PROBLEMS REGARDING THE EXERCISE OF JUDICIAL ACTIVISM THROUGH PUBLIC INTEREST LITIGATION

It seems that the misuse of PIL in India, which started in the 1990s, has reached to such a stage where it has started undermining the very purpose for which PIL was introduced. In other words, the dark side is slowly moving to overshadow the bright side of the PIL project.

(1) Ulterior purpose: Public in PIL stands substituted by private or publicity. One major rationale why the courts supported PIL was its usefulness in serving the public interest. It is doubtful, however, if PIL is still wedded to that goal. As we have seen above, almost any issue is presented to the courts in the guise of public interest because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response, and high impact). Of course, it is not always easy to differentiate ‘‘public’’ interest from ‘‘private’’ interest, but it is arguable that courts have not rigorously enforced the requirement of PILs being aimed at espousing some public interest. Desai and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.’’122 It is critical that courts do not allow ‘‘public’’ in PIL to be substituted by ‘‘private’’ or ‘‘publicity’’ by doing more vigilant gate-keeping.

(2) Inefficient use of limited judicial resources: If properly managed, the PIL has the potential to contribute to an efficient disposal of people’s grievances. But considering that the number of per capita judges in India is much lower than many other countries and given that the Indian Supreme Court as well as High Courts are facing a huge backlog of cases,123 it is puzzling why the courts have not done enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation. A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might render ‘‘many leading judgments merely of an academic value’’.124 The fact that courts need years to settle cases might also suggest that probably courts were not the most appropriate forum to deal with the issues in hand as PIL.

(3) Judicial populism: Judges are human beings, but it would be unfortunate if they admit PIL cases on account of raising an issue that is (or might become) popular in the society.

Conversely, the desire to become people’s judges in a democracy should not hinder admitting PIL cases which involve an important public interest but are potentially unpopular. The fear of judicial populism is not merely academic is clear from the following observation of Dwivedi J. in Kesavnanda Bharathi v State of Kerala:‘‘The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.’’125

It is submitted that courts should refrain from perceiving themselves as crusaders constitutionally obliged to redress all failures of democracy. Neither they have this authority nor could they achieve this goal.

(4) Symbolic justice: Another major problem with the PIL project in India has been of PIL cases often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case). No doubt, more empirical research is needed to investigate the extent of compliance and the difference made by the Supreme Court’s guidelines.126 But it seems that the judicial intervention in these cases have made little progress in combating sexual harassment of women and in limiting police atrocities in matters of arrest and detention.

The second instance of symbolic justice is provided by the futility of overconversion of DPSPs into FRs and thus making them justiciable. Not much is gained by recognising rights which cannot be enforced or fulfilled. It is arguable that creating rights which cannot be enforced devalues the very notion of rights as trump.127 Singh aptly notes that,

‘‘a judge may talk of right to life as including right to food, education, health, shelter and a horde of social rights without exactly determining who has the duty and how such duty to provide positive social benefits could be enforced’’.128 So, the PIL project might dupe disadvantaged sections of society in believing that justice has been done to them, but without making a real difference to their situation.

(5) Disturbing the constitutional balance of power: Although the Indian Constitution does not follow any strict separation of powers, it still embodies the doctrine of checks and balances, which even the judiciary should respect. However, the judiciary on several occasions did notexercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies. Jain cautions against such tendency: ‘‘PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.’’129

Moreover, there has been a lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield of policy questions.130 Just to illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam and to provide a humane face to liberalization-disinvestment polices. No clear or sound theoretical basis for such selective intervention is discernable from judicial decisions.131

It is also suspect if the judiciary has been (or would be) able to enhance the accountability of the other two wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation of executive and legislative functions might make these institutions more unaccountable, for they know that judiciary is always there to step in should they fail to act.

(6) Overuse-induced non-seriousness: PIL should not be the first step in redressing all kinds of grievances even if they involve public interest. In order to remain effective, PIL should not be allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses: ‘‘The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human rights of the victimized and the disadvantaged groups.’’132 If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it.

SUGGESTIONS TO CORRECT AN “OVER-ACTIVIST” JUDICIARY

Major steps need to be taken in order to prevent an “over-activist” judiciary from transgressing its limits. Some of these can be explained as follows: Public interest litigation, or PIL as it is conveniently called, has become a major and prominent segment of the jurisdiction of the Supreme Court and 21 High Courts in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant and unprincipled use at times by courts has brought PIL into controversy.

(1) Relaxation Must Be Procedural
Much of the misapplication of the PIL jurisdiction can be avoided, if it is remembered that PIL is basically the application of the well settled principles of judicial review by courts of actions of government and public authorities, with the modification of courts allowing the petitioner(s) applicant to approach the court on behalf of other persons, who themselves are unable to come to the court because of ignorance of their rights or the difficulty and cost of litigation. In such cases, the court relaxes the strict rule of locus standi of the applicant and also relaxes procedural formalities. It may even entertain a letter addressed to the court by a complainant. PIL was devised as a means for redressing the basic rights of generally the poor and marginalized sections of the society, who were unable to get judicial help on their own. It must also be borne in mind that public interest litigation is not something unique to India. Other jurisdictions such as South Africa, Canada and USA also have public interest litigation, though it is not described as such. It is, therefore, important to note that except for procedural relaxations, the PIL jurisdiction should not exceed the permissible limits and parameters of judicial review by the court over the actions or omissions of government, legislatures or public bodies, or transcend the basic separation of powers underlying the Constitution. Judicial review in a democratic constitution must also not supplant the normal processes of representative self-government, in which the representatives of the people make choices and policies which may not be ideal or correct, but which can be set right by the people themselves. What is not within the bounds of judicial review by courts cannot be within their reach because it comes under the description of public interest litigation before it. PIL jurisdiction is, therefore, not a unique jurisdiction by which courts can transcend their limitations to act as a body to set right actions of the government, which are believed to be wrong or could be improved. Once this basic foundation of PIL is kept in mind, the parameters of intervention in PIL are easily grasped and its misapplication can be seen and avoided.

(2) Judicial Activism Not PIL
Another misconception is equating PIL with judicial activism in India. Judicial activism is not PIL. A court can be judicially active or inactive irrespective of PIL. Judicial activism is a word of many shades. No person today subscribes to Bacon's view that judges must only declare the law and do not make law. Such a view was rightly described as a fairy tale by a distinguished English judge Lord Reid. Judges do and must make law but not in the manner of legislatures. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps in legal rules, as has been done by superior courts in several countries for many years. The Indian Supreme Court's own creative jurisprudence of the inviolability of the basic structure of the Constitution in 1973 and the importation of non-arbitrariness in the fundamental Right of Equality, and of due process of law in the right to personal liberty in Maneka Gandhi case in 1978, are stellar examples of how judicial function can be creative. Regrettably, this kind of creative judicial activism in Indian courts seems to have become dormant and displaced by a poor substitute of routine judicial correction and monitoring of governmental functions by courts in PIL. Judicial activism is equated with PIL mainly because it is a most convenient vehicle for bringing public grievances before courts and because the courts' orders in PIL are far-reaching and some times sensational. Once these fundamentals of judicial review are borne in mind by courts in exercising PIL jurisdiction, it can be a useful judicial process for the benefit of the public, particularly of the poor, the indigent and marginalized sections of society, whose fundamental rights are to be protected by court orders. It is the historic and constitutional duty of courts to safeguard and enforce the basic liberties and rights of individuals. A court is strongest and least vulnerable, when it grounds its interventions in enforcing the basic rights of individuals against authority. No question of the court breaching the separation of powers can arise, as it carries out its constitutional function of protecting the basic rights of individual in such cases.

(3) Judicial Activism Not Judicial Adventurism
The origins of PIL were in such unexceptional interventions in 1970, as when the court ordered the release of bonded labourers and stopped inhuman working conditions in stone quarries and in mental asylums etc. Correctly, this jurisdiction should have been named SAL or Social Action Litigation to gather its true import. It is also the court's legitimate function to enforce the law, not of each and every infraction, but in those cases where its disregard has grave consequences to the public. No question of the court overreaching its powers can arise in such cases. In matters relating to environment, where irreversible damage may be done unless the actions of the authorities are immediately corrected, the court may take prompt corrective measures, but not take over the administration itself or supplant the law. However, over the years, the true objective of PIL as originally conceived has been lost sight of, and it believed to be general jurisdiction for correcting government action or inaction, regardless of constraints of established principles of judicial review. As the court cannot disregard the law in judicial review or disregard the fundamental separation of powers underlying the Constitution to appropriate executive or legislative powers, PIL orders cannot disregard law; take over the administration by government or by public authorities, in the name of improving governance or preventing misuse of power. It is this aspect of misplaced judicial activism, which a bench of two judges of the Supreme Court in Aravali Golf Club case 2008 1 SCC 683 recently criticized in rather strong words of reprimand. The judgment was timely and has brought misplaced judicial activism into focus, but in the process it did not advert to the permissible scope of judicial intervention.

(4) Displacing Government Administration
It is true that there is a misconception not only in the public but also in courts about the function of judiciary under the Constitution, particularly when PIL is employed. It appears that the public has developed a syndrome of routine recourse to the courts for every perceived failure of government and the courts on their part have come to believe that it is their judicial duty to intervene in such failures by making orders for correcting or improving the government. There is a vast catalogue of such micro-managing orders made by the Supreme Court itself, which cannot be justified by any principle of judicial review. They include orders for making roads in hilly areas, wearing of helmets and seat belts to avoid accidents in cities, cleanliness in housing colonies, disposal of garbage, control of traffic, control of unmanned railway crossings, prevention of pollution of rivers, action plans to control and prevent menace of monkeys in cities, control of breeding of animals in zoos, measures to prevent ragging of students, collection and storage of blood in blood banks, control of noise and banning of fire crackers. At times, committees set up and empowered by courts have effectively displaced government's administration in those areas. Such PIL petitions are filed in the Supreme Court in its original jurisdiction under the Article 32 of the Constitution. Article 32 is for enforcing fundamental rights. It is hard to find any genuine enforcement of any fundamental right in such PIL petitions. The petitions make a formal invocation of Article 14 in its liberal interpretation of non-arbitrariness or of Article 21 in its vast expanse of a right to life. Article 32 seems to have lost its meaning for all practical purposes.

At times, matters beyond the judicial sphere and competence of the court have been entertained. In 1993, the Supreme Court even ordered that provision of food of 1200 calorific value should be supplied to hostages in an ongoing military operation in Kashmir. The court has professed to monitor a highly technical engineering scheme of interlinking of rivers in India and of genetic modified foods. In the field of higher education, the court's interventions have created a maze of complex regulations by successive cases, familiar only to lawyers, and baffling to educationists, parents and students. The court's scheme for admissions in private medical colleges in the Unnikrishnan case in 1993, which was in distinguishable from legislation, prevailed for nine years before it suffered an inglorious end, when the court itself struck it down as "unconstitutional" in T.M.A. Pai's case in 2002, causing considerable confusion in admissions in professional colleges.
Following upon the Aravali Golf Club case, a larger Bench of the Supreme Court is shortly to consider the parameters of PIL. This is not new. Way back in 1983, a Bench of the court had made reference to a larger Bench, but nothing came of it. If the fundamental premise of public interest litigation (or more appropriately, social action litigation), coupled with the premise that PIL cannot go beyond the limitations of judicial review and must give due recognition to the separation of powers under the Constitution, is borne in mind, a formulation of the instances where PIL may or may not used, seems unnecessary. It may even be counterproductive, as it is never good to distill judicial power by enumeration. For such matters, Justice Oliver Wendell Holmes once said, "We need to have education in the obvious".

Apart from the above, some important points need to be kept in mind by the people approaching the Courts, as well as the lawyers and judges who are involved in Public Interest Litigations. These are:

(1) Petitioners and the persons representing them as public-spirited individuals should approach the Court, keeping very clear objectives in mind, and not just raise any issue or claim any kind of relief, that may be irrelevant in the context of the particular case.

(2) Lawyers, by exercising their legal acumen and knowledge, should find out the exact types of petitions which might be within the jurisdiction of the particular Court from where they want to claim relief. This will, in turn ensure that the Courts do not transgress the boundaries within which they are required to restrict themselves.

(3) Judges should verify the credentials of the applicant(s) and the authenticity of the information furnished by them. Even though there has been a liberalization of the Locus Standi rule, the Courts must ensure that the applicant is a public spirited person whose objective is to fight for the cause of the underprivileged and deprived classes and has been doing that consistently, over a period of time.

(4) Courts should not allow reckless allegations and frivolous petitions which may amount to public mischief, questioning the proper and legally justifiable executive, administrative or legislative actions.

(5) Judges should have enough knowledge of the Constitution as well as other laws to ascertain the exact boundaries between judicial activism and judicial overreach. They should mainly stick to the principles and parameters of Judicial Review, from which the concept of activism actually emanates.

(6) Adhering to the basics of Judicial Review only, gives ample opportunity to the Judiciary to adopt an activist approach. Laying down policies is not their concern, but applying a judicial mind to check the validity of the laws and policies laid down by the executive and legislature, is a valid action, as per the basic tenets of the Constitution.

(7) Proper guidelines should be laid down by the apex Court from time to time, to be followed by the other Courts, pertaining to the kind of cases that the Courts are capable of entertaining under the broad umbrella of Public Interest Litigations. This will help to uphold the objectives behind the separation of powers, followed by the Indian Constitution and polity.

BIBLIOGRAPHY

(1) Khan Kamaluddin, Public Interest Litigation and Judicial Activism, available at www.twocircles.net

(2)Andhyarujina T.R., Judicial Activism in Public Interest Litigation, available at www.lexisnexisindia.com

(3) Gupta Gulab J., Judicial Activism - A National Necessity, Journal of the Indian Law Institute, Vol. III, 1999

(4)Austin Granville, The lndian Constitution: Cornerstone of a Nation, Oxford, OUP, 1^st edition, New Delhi, 1997

(5)Bhatia K.L., Judicial Review and Judicial Activism, Journal of Constitutional and Parliamentary Studies, Vol. II, 1997

(6)Deva Surya, Public Interest Litigation in India: A Critical Review, Civil Justice Quarterly, Vol.28, No.1, 2009

(7) Choudhury Ram Kishore & Choudhury Tapash Gan, Judicial reflections of Justice Bhagwati, Eastern Law House(P) Ltd., 1^st edn., New Delhi, 2008

(8) Sathe S.P., Judicial Activism in India, Oxford University Press (OUP), 1^st edn., New Delhi, 2002

(9) Mahendra P. Singh, The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective, (2003) 5 SCJ 1.

(10) Baxi Upendra, Taking Suffering Seriously, Journal of Third World Legal Studies, 1985

1 The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of Civil Procedure 1908. Furthermore, s.91 of the Code provides: ‘‘In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted . . . with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.’’

2 See Sheetal B. Shah, ‘‘Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health in India’’ (1999) 32 Vanderbilt Journal of Transnational Law 435, 463.

3 Constitution of India 1950 Preamble. Although the terms ‘‘socialist’’ and ‘‘secular’’ were inserted

by the 42nd amendment in 1976, there were no doubts that the Constitution was both socialist and secular from the very beginning

4 Constitution of India 1950, Preamble.

5 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966), p.27. ‘‘The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’.’’ (Austin, Cornerstone of a Nation, p.26, quoting K. Santhanam, a member of the Constituent Assembly.)

6 Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50

7 M.P. Jain, ‘‘The Supreme Court and Fundamental Rights’’ in S.K. Verma and Kusum (eds), Fifty Years of the Supreme Court of India—Its Grasp and Reach (New Delhi: Oxford University Press, 2000), pp.1, 76.

8 Constitution of India 1950 art.32.

9 Basheshar Nath v CIT AIR 1959 SC 149; Nar Singh Pal v Union of India AIR 2000 SC 1401.

10 See, for example, Constitution art.15(2) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them to access and use of public places, etc.); art.15(4) (special provision for advancement of socially and educationally backward classes of citizens or the scheduled castes and the scheduled tribes); art.16 (equality of opportunity in matters of public employment); art.19 (rights regarding six freedoms); art.29 (protection of interests of minorities).

11 See, for example, Constitution art.14 (right to equality); art.15 (1) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in respect of conviction of offences); art.21 (protection of life and personal liberty); art.22 (protection against arrest and detention); art.25 (freedom of conscience and right to profess, practice and propagate religion).

12 See, e.g. Constitution arts 26, 29 and 30.

13 Austin cites three provisions, i.e. Constitution arts 15(2), 17 and 23 which have been ‘‘designed to protect the individual against the action of other private citizen’’: Austin, Cornerstone of a Nation, p.51. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) could be invoked against private individuals. See also Vijayashri Sripati, ‘‘Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000)’’ (1998) 14 American University International Law Review, 413, 447–48.

14 See AjayHasia v Khalid Mujib AIR 1981 SC 487; Pradeep Kumar v Indian Institute of Chemical Biology (2002) 5 S.C.C. 111. In the application of the instrumentality test to a corporation, it is immaterial whether the corporation is created by or under a statute. Som Prakash Rekhi v Union of India AIR 1981SC 212.

15 The FRs are judicially enforceable whereas the DPs are unenforceable in the courts. For the relevance of this difference, see Mahendra P. Singh, ‘‘The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective’’ (2003) 5 SCJ 1.

16 Constitution art.37

17 State of Madras v Champakam Dorairajan AIR 1951 SC 226.

18 CB Boarding & Lodging v State of Mysore AIR 1970 SC 2042; Kesvananda Bharti v State of Kerala AIR 1973 SC 1461; Minerva Mills Ltd v Union of India AIR 1980 SC 1789; Unni Krishnan v State of AP (1993) 1 S.C.C. 645. See also Rajiv Dhavan, ‘‘Republic of India: The Constitution as the Situs of Struggle: India’s Constitution Forty Years On’’ in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382–383, 405 and 413–416.

19 Minerva Mills Ltd v Union of India AIR 1980 SC 1789, 1806.

20 Jain M.P., ‘‘The Supreme Court and Fundamental Rights’’ in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.65–76.

21 Austin, Cornerstone of a Nation, p.175.

22 Constitution of India 1950 arts 32 and 226

23 See, for an analysis of some of the landmark judgments delivered by the Apex Court during these years, Gobind Das, ‘‘The Supreme Court: An Overview’’ in B.N. Kirpal et al. (eds), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: OUP, 2000), pp.16–47.

24 These two judges headed various committees on legal aid and access of justice during 1970s, which provided a backdrop to their involvement in the PIL project. See Jeremy Cooper, ‘‘Poverty and Constitutional Justice: The Indian Experience’’ (1993) 44 Mercer Law Review 611, 614–615.

25 See Cooper, ‘‘Poverty and Constitutional Justice’’ (1993) 44 Mercer Law Review 611, 616–632; See Shah, ‘‘Illuminating the Possible in the Developing World’’ (1999) 32 Vanderbilt Journal of Transnational Law 435, 467–473; Vijayashri Sripati, ‘‘Human Rights in India Fifty Years after Independence’’ (1997) Denver Journal of International Law and Policy 93, 118–125.

26 Gupta v Union of India (1981) Supp S.C.C. 87, 210. See also PUDR v Union of India AIR 1982 SC 1473; Bandhua Mukti Morcha v Union of India (1984) 3 S.C.C. 161.

27 It is suggested that the way a judge applies the rule of standing corresponds to how she sees her judicial role in the society. Aharon Barak, ‘‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’’ (2002) 116 Harvard Law Review 16, 107–108.

28 ‘‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights contained in this Part is guaranteed.’’ Constitution of India 1950 art.32(1).

29 Shukla V.N., Singh M.P.(ed), Constitution of India, pp.278–279.

30 See, for example, Sunil Batra v Delhi Administration AIR 1980 SC 1579; Dr Upendra Baxi v State of UP (1982) 2 S.C.C. 308.

31 Kharak Singh v State of UP AIR 1963 SC 1295; Sunil Batra v Delhi Administration (1978) 4 S.C.C. 494; Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer Education & Research Centre v Union of India (1995) 3 S.C.C. 42; Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 S.C.C. 490; Visakha v State of Rajasthan AIR 1997 SC 3011. In some of these cases the Court has relied upon the observation of Justice Field in Munn v Illinois 94 US 113.

32 Francis Coralie v Union Territory of Delhi AIR 1981 SC 746, 753.

33 See Ashok H. Desai and S. Muralidhar, ‘‘Public Interest Litigation: Potential and Problems’’ in Kirpal et al., Supreme but not Infallible, pp.159, 165–167. The Court also held that the power to appoint commissioners is not constrained by the Code of Civil Procedure or the Supreme Court Rules.

34 Baxi, ‘‘Taking Suffering Seriously’’ (1985) Third World Legal Studies 107, 122

35 See Sathe, Judicial Activism in India, pp.207–208, 235–237.

36 See, e.g. Cunningham, ‘‘Public Interest Litigation in Indian Supreme Court’’ (1987) 29 Journal of Indian Law Institute 494.

37 Dam divides SAL in three functional phases: creative, lawmaking and super-executive. Shubhankar Dam, ‘‘Lawmaking Beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analyzing The Legitimacy of the Nature of Judicial Lawmaking in India’s Constitutional Dynamic)’’ (200) 13 Tulane Journal of International and Comparative Law 109, 115–116. This division, however, does not fully explain the complexity of PIL, because it focuses only on one aspect of it.

38 It is suggested that in recent years the Supreme Court has been influenced by liberalization and corporate business interests at the cost of human rights. See Jamie Cassels, ‘‘Multinational Corporations and Catastrophic Law’’ (2000) 31 Cumberland Law Review 311, 330; Parmanand Singh, ‘‘State, Market and Economic Reforms’’ in Parmanand Singh et al. (eds), Legal Dimensions of Market Economy (New Delhi: Universal Book Traders, 1997), pp.23, 30–31; Prashant Bhushan, ‘‘Has the Philosophy of the Supreme Court on Public Interest Litigation Changed in the Era of Liberalisation?’’, http://www.judicialreforms.org/files/2%20Philosophy%20of%20SC%20on%20PIL%20%20Prashant%20Bhushan.pdf [Accessed October 8, 2008].

The Civil Liability for Nuclear Accidents Bill, 2010: A Critique

Sun, 20 May 2012 07:26:35 +0530

The Civil Liability for Nuclear Accidents Bill, 2010: A Critiqu

Introduction

Are we proceeding towards another Bhopal Disaster or something even worse? The Civil Liability for Nuclear Accidents Bill was to be introduced in the Parliament amidst great fury and opposition from all quarters including even those from within the Government with the Union Environment Minister, Mr. Jairam Ramesh saying that the Bill had not been cleared by the Environment Ministry^{^1-2}. This paper deals with a critical analysis of the Bill in light of the Bhopal Gas Disaster and other significant industrial disasters and the existing environmental law framework which has been evolved by the legislature and the judiciary in a harmonious way in order to prevent industrial disasters. The international instruments related to liability arising out of nuclear accidents have also been discussed in brief. The paper then discusses the contravention of the well established principles and laws by the impugned Bill and the damage that may be caused to India and its citizens on account of the callous approach of the Indian Government.

Background

The Indo- U.S. Nuclear Deal

There is a big power crisis in India. It is now time to reduce the consumption of conventional and non-renewable sources of power generation so that we can save them for the future generations. Therefore the Indian Government started the process of entering into agreements with other countries so that we could import nuclear raw material for power generation. The Bill has been brought forth in furtherance of the much talked about Indo-U.S. Civil Nuclear Agreement, which would enable India to access nuclear technology and fuel from the U.S.A.. Similar agreements are being signed with France and Russia as well. These agreements would help India in establishing the nuclear reactors and using them for civil purposes. It would also enable private companies established in these countries to setup their plants in India and operate them. This Bill seeks to protect the suppliers and the operators from unlimited liability under the legal regime existing in India.

Bhopal Gas Disaster

On the intervening night between 2^nd and 3^rd December 1984, there was a leak of the highly noxious and abnormally dangerous gas (Methyl Iso-Cyanide) from the plant of Union Carbide India Limited (UCIL). This resulted in a large number of causalities. The gas also resulted in deformities and many kinds of diseases. The incident was a disaster in the true sense of the term. On 7^th December, 1984, Chairman of UCC Mr. Warren Anderson came to Bhopal and was arrested. He was later released on bail.

The State Government and the Union Government failed to provide any immediate relief, since there were no preparations to prevent and handle a disaster of this magnitude. The company also failed to take any measures to help the victims of the incident. The Government of India passed ‘The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985’ on 29^th March, 1985. This Act gave Government the power to represent the victims of the disaster in all suits arising out of the Bhopal Disaster. This Act was based on the doctrine of parens patriae. It included the future generations of victims within its scope. The Government specifically mentioned that it sought to invoke this doctrine for all victims because a majority of them were physically and economically incapable of individually litigating their claims. The doctrine was invoked not only for the protection of the victims, but also to “protect, preserve and restore the earth, air, water and economy of the republic”.

On 8^th April, 1985 Union of India filed a complaint before the U.S. District Court, Southern District of New York. Justice Keenan passed an order on 12^th May, 1986 allowing the application of UCC on forum non convenience but the UCC was held to be amenable to jurisdiction of the Indian courts.

It was only on 17^th December, 1987, that the District Judge of Bhopal ordered an interim relief amounting to Rs. 350 crores. The Madhya Pradesh High Court on 4^th April, 1988 delivered its judgment and passed an order modifying the order of the District Judge, and thereby granting an interim relief of Rs. 250 crores.

The UCC appealed before the Supreme Court against this interim order. A Constitution Bench of the Supreme Court, on 14^th February 1989, held that due to “the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster” there was a need for the “overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster”^³. It therefore ordered the payment of the sum of U.S. Dollars 470 million (which upon immediate payment and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million US dollars or its rupee equivalent of approximately Rs. 750/- crores) by the UCC on the basis of the offer and the counter offer by the parties. All criminal proceedings related to and arising out of the disaster were also quashed.

This settlement order was challenged in the case Union Carbide Corporation
v. Union of India (UOI) and Ors. Jana Swasthya Kendra, Bhopal, M.P. Zahreeli Gas Kand Sangharsh Morcha, Bhopal^⁴. The court took into consideration the delay in the judicial proceedings and the provision of relief to the victims, which had resulted in great distress and agony. The court further observed that the compensation amount that was decided was according to the data provided by the plaintiff (Union of India) and so there was no reason to disbelieve it. The court considered the settlement to be just and fair.

One major flaw in the judgment was that the court took into consideration only four categories of victims, namely,

cases of death,
cases of total permanent disability,
cases of permanent partial disablement and
cases of temporary partial disablement.

No account was taken of the damage caused to the environment, the harmful effects of the gas on future generations and victims whose symptoms were not visible then but they developed complications later on.

The court also observed that the decision in M.C. Mehta v. Union of India^⁵was influenced by the Bhopal Disaster and the principle of absolute liability was laid down for this case even before it came before the Supreme Court; hence the court did not apply the principle.

Hence we see how the Bhopal Gas Disaster was a failure of the Indian judicial system to deliver justice and that the opportunity given to it by Justice Keenan, to stand tall before the world was wasted.

Other Industrial Disasters

The Three Mile Island Accident

The accident occurred on 28 March 1979 at the Three Mile Island Unit 2 nuclear power plant near Middletown, Pennsylvania as equipment malfunctions, design-related problems and worker errors led to the partial meltdown of the core of the reactor.^⁶ The estimate that was brought out projected a cost of US $ 1.034 billion and the cleanup should have been completed by 1986^⁷, but it took 14 years for the total cleanup and 2.23 million gallons of water had been processed only to get it rid off the radioactive substance. Thus we see how long it takes to overcome the effects of a nuclear disaster and the cost which is incurred by the damage caused thereby.

Chernobyl Disaster

On 26 April 1986, the worst nuclear power reactor disaster^⁸ occurred in Ukraine, about 20 km south of the border with Belarus. It resulted in the release of large amounts of radioactive substances being released. In around 36 hours of the accident 45,000 inhabitants of Pripyat who lived in a 4 km radius of the site of incident were evacuated in buses. Till today the town remains uninhabited. About 1,30,000 people from the 76 settlements living within a radius of 30 km in the area near the accident site had to be evacuated till the 5May 1986.^⁹ More than 4000 thyroid cancer cases were detected in children and adolescents (0–18 years) diagnosed in 1992-2002 in Belarus, Russia and Ukraine.^¹⁰

Coca Cola Case in Kerala

A case was filed by the Panchayat and the residents of Plachimada (Palakkad district, Kerala) with the support of some non-governmental organisations against the Coca Cola plant for the depletion of groundwater and for the contamination of wells in an area having a radius of one to two kilometres around the plant.

A High Power Committee consisting of 14 members headed by Additional Chief Secretary Mr. K. Jayakumar had been set up by the Kerala Government to look into the matter. It was reported that the committee has quantified the damage and recommended and the total damages payable are Rs. 216.16 crore. The damage suffered by various sectors due to the functioning of the plant from 1999 to 2004 has been given as “agricultural loss (Rs 84. 16 crore), pollution of water resources (Rs 62 crore), cost of providing water (Rs 20 crore), health damage (Rs 30 crore), wage loss and opportunity cost (Rs 20 crore).”^¹¹

Existing Laws

The Constitution of India

Article 21 provides that no person shall be deprived of his life or liberty except according to the procedure established by law. Article 47 imposes a positive duty on the state to raise the level of nutrition, the standard of living and to improve public health. It makes it primary duty of the state. Article 48-A imposes a duty on the state to protect and improve the environment and safeguard forests and wildlife

A mere perusal of these provisions of the Constitution leads us to the conclusion that environment and human life hold great importance in the Constitution. A conjoint reading of the Articles shows that it is the duty of the state to protect human life and the environment as they are inseparable for a dignified and complete life. The Bill seeks to bypass these provisions and limit the liability of the operator and prevent the victims from getting full compensation for the damage caused to them. It is clear that the Constitution imposes a duty on the state not only to protect the environment but also to improve it as a clean and healthy environment is necessary for the proper, meaningful and dignified existence of man. Any derogation from the required norms would result in violation of Article 21 which is included in the Part III of the Constitution.

Environment Protection Act, 1986

The aims and objectives of the Environment Protection Act provide that the Act was brought into force in order to implement the decisions taken in the Stockholm Conference in 1972. It says that the aim of the law is to fill the gaps in the existing laws and to provide control mechanisms against slow, insidious build up of hazardous substances.

Section 2(a) of the Act provides that ‘environment’ includes water, air and land, and the inter-relationship that exists among them and between them and human beings, other living creatures, plants, micro-organisms and property.

This definition makes it very clear that everything around us constitutes our environment and thereby in the light of this definition, the provisions of the Act seek to protect the Environment. The definition of ‘hazardous substances’ as given in Section 2(e) is that it means any substance which due its chemical or physio-chemical properties is liable to cause harm to human beings or other components of the environment. This shows the concern of the legislature to protect the environment. It has included all substances which may cause harm in the ambit of hazardous substances. Section 8 of the Act says that no person shall handle or cause to be handled any hazardous substance without complying with all the safeguards and the procedure which is prescribed. Hence the Act seeks to prevent any damage being caused to the environment, especially by hazardous substances, and has widened the scope of the term ‘environment’.

Atomic Energy Act, 1962

The Atomic Energy Act and the Rules, as of now, permit only the Central Government to do certain acts relating to the use of radioactive substances and their production and the production of atomic energy.^¹² It would be relevant here to quote Section 3 of the Act.

Subject to the provisions of this Act, Central Government shall have power -

(a) to produce, develop, use and dispose of atomic energy either by itself or through any authority or Corporation established by it or a Government company and carry out research into any matters connected therewith;

(b) to manufacture or otherwise produce any prescribed or radioactive substance and any articles which in its opinion are, or are likely to be, required for, or in connection with, the production, development or use of atomic energy or such research as aforesaid and to dispose of such described or radioactive substance or any articles manufactured or otherwise produced.

(bb) (i) to buy or otherwise acquire, store and transport any prescribed or radioactive substance and any articles which in its opinion are, or are likely to be, required for, or in connection with, the production, development or use of atomic energy; and

(ii)to dispose of such prescribed or radioactive substance or any articles bought or otherwise acquired by it either by itself or through any authority or corporation established by it, or by a Government company;

(f) to provide for the production and supply of electricity from atomic energy and for taking measures conducive to such production and supply and for all matters incidental thereto either by itself or through any authority or corporation established by it or a Government Company;

The Sub-rule (2) of Rule 1 of the Atomic Energy (Factories) Rules, 1996, specifically provides that the Rules shall apply only to all factories owned by the Central Government and engaged in carrying out the purposes of the Atomic Energy Act, 1962 (33 of 1962).

Hence we see that the Act and the Rules in clear terms lay down that only the Central Government has the power to use radioactive substances in industries for the purposes of mining or power generation. Private companies had been intentionally excluded by the legislature. We can understand that this had been done because of two reasons. Firstly, placing a sensitive substance like radioactive substance in the hands of private persons could lead to dangerous consequences if such persons are negligent. Secondly, for security reasons it is important that the Government, who is directly responsible to the people of the country, should bear the responsibility of protecting the radioactive substances from falling into wrong hands and should take appropriate measure for the generation of atomic power. Also information which may sometimes be vital for country’s defence should not be leaked to private parties and hence this legislation was in the interest of the country and its people.

The Bill only provides for a liability cap and does not lay down the responsibilities of the foreign suppliers or the operators regarding the maintenance of safety mechanisms. Hence the private operators would be free to adopt their own measures and mechanisms, which would definitely be in their interest and to maximise their profit and not keeping in mind the interest of the people of India.

It also does not lay down any penalty whatsoever in case of violation of any norms (which apply to the Government Companies as provided under Section 24 of the Act). Hence, in these circumstances it would be dangerous to allow private companies from other countries to come and operate nuclear plants in India. The Bill also does not provide any method to calculate the compensation and damages in case of a nuclear accident and an arbitrary sum of Rs. 500 crore has been decided as the liability of the operator.

Judicial Decisions

The Indian Judiciary has from time to time laid down guidelines and has evolved principles in order to protect the environment from the greed and lust of humans in quest of profit. Let us discuss the evolution and recognition of certain principled related to industries which have served as lighthouses for public authorities and industries for the protection of environment.^¹³

Absolute Liability Principle

In order to understand the evolution of law in India, first let us study the case of Rylands v. Fletcher^¹⁴. The House of Lords in this case evolved the principle that “a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape.” This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority.

Hence this rule laid down in this decision was found inadequate by the Supreme Court of India in M.C. Mehta v. Union of India^¹⁵. The court evolved the principle of absolute liability as it said that new principles were necessary to be evolved to deal with problems arising in a highly industrialised economy. The Court therefore held that any enterprise or industry which is engaged in a hazardous or inherently dangerous activity posing a potential threat to the health and safety of the persons working in the industry and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The court further held that the enterprise should take all possible and best measures for ensuring the safety and all activities must be carried out with the highest standards of safety but in case any harm results from the inherently dangerous activities, the enterprise shall be liable for the same and it cannot be excused on the ground that it had taken all possible measures for ensuring safety. It was observed that such hazardous activities can be tolerated only if the enterprise indemnifies all those who suffer harm as a result of its profit making activities. It was also observed that the larger and more prosperous the enterprise, the greater should be the amount of compensation to be paid by it.

Polluter Pays Principle and the Precautionary Principle

The Polluter Pays principle was first mentioned in the Recommendation by the OECD Council on Guiding Principles concerning International Economic Aspects of Environmental Policies in 1972^¹⁶, wherein it was stated that “The principle to be used for allocating costs of pollution prevention and control measures to encourage rational use of scarce environmental resources and to avoid distortions in international trade and investment is the so-called Polluter-Pays Principle.” The Recommendation further added that “This principle means that the polluter should bear the expenses of carrying out the above-mentioned measures decided by public authorities to ensure that the environment is in an acceptable state.”

It is also mentioned in Principle 16 of the Rio Declaration on Environment and Development, 1992. In literal terms the polluter pays principle means that one who pollutes should bear the costs for the cleanup. The principle thus reduces the burden on taxpayers and the Government and remedial actions are to be carried on by the person who caused the pollution. Thereby it acts as a deterrent as well as a corrective measure.

In Indian Council for Enviro-Legal Action v. Union of India, Supreme Court of India held that Section 3, 4 and 5 of the Environment Protection Act, 1986 empower the Central Government to take measures for prevention and repairing of any damage caused to the environment. In this case the Court held the ‘Polluter Pays Principle’ to be a sound principle. It observed that under the principle “it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”

The Supreme Court in Vellore Citizens Welfare Forum v. Union of India and Ors,^¹⁷linked the ‘Principle of Sustainable Development’ with the ‘Precautionary Principle’ and ‘Polluters Pays principle’ and explained them. It held that:

“Some of the salient principles of ‘Sustainable Development’, as culled out from Brundtland Report and other international documents, are Inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that ‘The Precautionary Principle’ and ‘The Polluter Pays’ principle are essential features of ‘Sustainable Development’. The ‘Precautionary Principle’ - in the context of-the municipal law - means:

(i) Environment measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.”

Thus the Court concluded that these principles mean that industries which cause pollution or harm to the environment owe an absolute liability towards all and they should take all measures for restoring the quality of environment in addition to the compensation to be paid to victims. It was observed that restoring the environment was a part of the concept of ‘Sustainable Development’ and the ‘Public Trust Doctrine’.

In M.C. Mehta v. Union of India^¹⁸, the Apex Court followed its earlier decisions and again applied the principle of ‘Polluter Pays’. In Research Foundation for Science Technology and Natural Resources Policy v. Union of India^¹⁹, it was held that ‘Polluter Pays’ means that the person producing goods or other things should be responsible for the cost of preventing or dealing with any pollution that the process causes. The industries are under an obligation to prevent any harm being caused and not just to take measures for remedying the damage. The principle also does not mean that the polluter can pollute and pay for it. The costs and damages may vary from case to case.

These principles also flow from the doctrine of ‘Public Trust’. By considering natural resources as a property, the doctrine describes the right of the State and individuals over it. It implies that the present generation holds the property (environment) as a trust property for future generations and from this arises an obligation to protect it and preserve it.

International Conventions/ Treaties

In wake of rapid growth of the nuclear industry, a special international regime for nuclear third party liability was necessary since ordinary common law is not well suited to deal with the particular problems in this field. Therefore international community had to come up with an international instrument to provide for a uniform system for the liability arising out of nuclear accidents. Hence first of these was the Paris Convention.

Paris Convention on Nuclear Third Party Liability, 1960

The drafters of the Paris Convention^²⁰ set out to provide adequate compensation to the public for damage resulting from a nuclear accident and to ensure that the growth of the nuclear industry would not be hindered by bearing an intolerable burden of liability. With this in mind the Paris Convention limited the liability of the operators and the limitation period was kept as low as possible. The main highlight of the Convention is that the liability of the operator is “strict”, as opposed to general tort law which is based on fault or negligence.^²¹ Thus the nuclear installation operators were held liable, regardless of whether fault could be established. The Convention kept the maximum liability of a nuclear installation operator at SDR 15 million and the minimum liability at SDR 5 million.^²² This low level of liability is worth criticism and most of the States have not adhered to this. The Convention made it mandatory for the operators to have insurance for an amount equal to that of their liability.^²³ It also provides for a limitation period of 10 years for all claims arising out of the nuclear accident.^²⁴

Vienna Convention on Civil Liability for Nuclear Damage, 1963

The Vienna Convention is in essence the predecessor of Convention on Supplementary Compensation. Article IV(1) provides for absolute liability of the operator. Article V(1) provides that liability of the operator shall not be less than US $ 5 million^²⁵. But the Convention was amended by the Protocol to Vienna Convention on Civil Liability for Nuclear Damage, 1997 and the amended document provides that the Installation State may limit the liability of the operator to not less than 300 million SDRs or to not less than 150 million SDRs if the State is willing to pay the difference.^²⁶ Thereby the Convention seeks to impose absolute liability on the operator for all damage caused by the nuclear incident. Article VA further provides that interest and costs shall be awarded in addition to the aforesaid amount. Article VI(1)(a) provides for limitation period. The period has been prescribed as 30 years for loss of life and personal injury and 10 years for any other damage. Article VI(1)(b) provides that if the insurance agreement of the operator covers a longer period then that period shall constitute the limitation.

Convention on Supplementary Compensation, 1997 (CSC)

Article III of the CSC provides that the contracting party shall ensure availability of at least 300 million SDRs or a greater amount prior to any nuclear incident. The Bill seeks to limit the maximum liability at the minimum amount specified in the convention. The CSC does not limit the liability of the operator. It is the Government of India which seeks to limit it at a meagre amount of Rs. 500 Crores.

The CSC provides for absolute liability of the operator^²⁷ and also that the installation state may provide for liability of the operator in case damage is caused by a grave natural disaster of exceptional character^²⁸. But the Bill exempts the operators from any liability in such a scenario.

As regards the period of limitation, the CSC provides that it shall be 10 years but if the law of the installation state prescribes a longer duration that shall be valid^²⁹. Our Government is being callous in ignoring these provisions and making law only to favour the foreign players.

Article XX of the CSC provides that the Convention shall come into force on the ninetieth day following the date on which at least 5 contracting states with a minimum of 400,000 units of installed nuclear capacity have submitted their relevant documents with the depository. Hence this clause makes this convention ineffective as of now. The Indian Government has been harping on the point that we shall be able to access international funds after the passage of the Bill but it is not so as the CSC is still not in force.

Mass Torts

In India the law of torts as such has remained undeveloped. In this situation we cannot expect any development of the law related to mass torts. Nevertheless, let us take a look at the system prevalent in India.

The elements of tort of negligence^³⁰ consist in

(a) duty of care;

(b) duty is owed to the plaintiff;

In India there has hardly been any case of mass tort action. This fact was recognised by the Supreme Court in Union Carbide Corporation v. Union of India^³¹ wherein it said that usually the settlement in cases has been through consent or where settlement was reached either directly or through a circuitous process. Such an alternate procedure has been preferred over the years over the method of tortuous litigation. It was observed that by these measures the amount of compensation given has almost always been just and equitable.

The Court also cited an American decision in Sterling v. Velsicol Chemical Corporation^³² where the US Court of Appeals tended to the view that generalised proof of damages is not sufficient to prove individual damages and that the damages in mass tort personal injury cases must be proved individually by each individual plaintiff. The Court held:

“We cannot emphasise this point strongly enough because generalised proof will not suffice to prove individual damages. The main problem on review stems from a failure to differentiate between the general and the particular. This is an understandably easy trap to fall into in mass tort litigation. Although many common issues of fact and law will be capable of resolution on a group basis, individual particularised damages still must be proved on an individual basis.”

The onus to prove the claims wrong should be on the wrong doer and not on the injured parties. It is also easier to calculate a total or aggregate sum of all the claims than to calculate and process all the claims individually for assessment against the defendant. The Bhopal Gas Disaster was an ideal situation where the Court could have developed the system of mass tort in India but unfortunately it failed to do so. The Code of Civil Procedure also does not make any special provisions for handling large amounts of evidence and huge number of parties.

The prevalent practice in India is that whenever any disaster occurs the government announces an ex-gratia compensation along with institution of civil or criminal proceedings against the culprits.^³³ Inquiry commissions are set up and eventually there is no relief for the victims.

In India, ex-gratia payments are made by the Governments to victims of natural disasters^³⁴, communal riots, railways accidents^³⁵, farmer suicide cases^³⁶, etc. This system has been another reason for the undeveloped nature of the law of torts in India.

Controversial Provisions of the Bill

The Civil Liability for Nuclear Accidents Bill, 2010, has been a bone of contention for some time. The Left parties, Bharatiya Janta Party (BJP) and others have been opposing it. Let us take a look at the provisions of the Bill which are in contravention of the well established principles of national as well as international law by the provisions of this Bill.

Clause 3 of the Bill empowers the Atomic Energy Regulatory Board to not notify any nuclear incident which it thinks is insignificant. This power would allow it to hush up incidents in which there are fewer casualties, thereby protecting the operator from liability under this Act.
Clause 5(1) excludes the operator from liability under certain circumstances like when the damage is directly caused by a grave natural disaster or an armed conflict or acts of terrorism or a civil war. This is in clear violation of the principle of absolute liability.
Clause 6 is the most controversial provision of the Bill. It fixes the maximum amount of liability of the Government of India as well as the operator in case of any nuclear incident. The clause fixes a cap on the liability of the operator at Rupees 500 Crores and maximum total liability arising out of any incident has been fixed at the Rupee equivalent of 300 million Special Drawing Rights. The Clause also provides that the amount of liability shall not include any interest or cost of proceedings. It also empowers the Central Government to decrease the maximum liability of any operator to Rupees 100 Crores.
Clause 7 provides for responsibility and liability of the Central Government. The Central Government has been made liable for-

any amount over and above the liability of the operator as specified in the Clause 6(2),
entire liability arising out of any installation owned by it and
liability that arises out of an incident which is effected by the causes mentioned in Clause 5(1), i.e., a grave natural disaster or acts of terrorism, civil war, armed conflict, hostility or insurrection.

‘Locus Standi’ has been provided for in Clause 14. It provides that the person who has been injured or whose property has been damaged or their legal representatives or their duly authorised agent may make an application. Here there is no provision for the Government to make an application on behalf of the victims.
Clause 15 provides that the application should be made in the prescribed form and within three years (subject to the limitation under Clause 18) of discovering the damage caused. Clause 31 of the Bill makes a similar provision for the procedure before the Nuclear Damage Claims Commission.
Clause 16(5) provides for the finality of the orders of the Claims Commissioner.
Clause 18 is another most debated provision of the Bill. It lays down a limitation period of 10 years, from the date of incident, for the right to claim compensation for a nuclear damage.
Clause 35 imposes a bar on the jurisdiction of the Civil Courts to entertain civil suits or proceedings of any matter which the authorities under the Act are empowered to adjudicate upon.
Clause 45 empowers the Central Government to exempt any nuclear installation from the application of this Act, if having regard to the quantity of the nuclear material it is of the opinion that the risk is insignificant.

Comments and Suggestions

There should not be a cap on the liability of operators. It is a fact that we are a developing country and our resources are limited. Moreover the country already suffers with various problems like poverty, hunger, food crisis and illiteracy. We cannot allow the Multi National Companies from developed countries exploit us.

As in the case of the Bhopal Gas Disaster, it is quite evident that the meagre sum of 470 million $ was insufficient compensation for the large number of lives lost, impairment caused to the present and future generations and the damage caused to the environment, so how can an even smaller sum like Rs. 500 crore be sufficient to compensate the victims of a nuclear accident? Even in the Coca Cola Case (Kerala) the High Power Committee has recommended damages in excess of Rs. 200 Crore. In light of such incidents how can the sum of Rs. 500 Crore be sufficient for a nuclear accident? These incidents reflect the callous attitude of the MNCs. The principle of absolute liability as discussed above should be implemented as strictly as possible.

The Bill in its present form imposes the residual liability on the Government of India. This means that in case of any damage arising out of the profit making venture of a foreign based company it would eventually be the Indian taxpayers on whom the burden would be transferred.

The purpose of the Bill should have been to incentivise the maintenance of safety mechanisms. The low liability instead of encouraging the operators to install and maintain safety mechanisms and devices would help the operators avoid the installation and operating cost of such mechanisms. The operators would want to maximise their profit by saving on safety measures and having a fixed liability in case of an accident. If at all a cap is to be imposed on liability, it should be high enough or in other words much more than the savings that can accrue from not installing and operating the safety devices. There should also be specific provisions for installation and maintenance of safety mechanisms and their regulation. The operators should not be left with any choice to install safety mechanisms. It should be made mandatory and severe penal actions should be prescribed and taken against offenders. This would act as a deterrent for those trying to maximise their profits at the cost of public money and health and would act as an incentive for operators to install and maintain safety mechanisms. The Bill should first aim at reducing the possibility of an accident rather than only concentrating on the liability part. It should also provide rules and regulations for the safety and protection of workers at the nuclear plants.
The Bill gives Central Government the power to reduce liability of any operator to Rs. 100 crore.^³⁷ It has also been given the power to exclude any nuclear installation from the application of the Act if it is of the opinion that the risk involved is insignificant.^³⁸ These arbitrary powers vested in the Government would result in great harm to the nation if an accident occurs in any of such exempted plants. In such a situation, entire burden arising out of the accident would fall on the people of India also being victims of the disaster. The Bill does not provide any substantive guidelines and powers of the Government are unfettered.
Clause 18 of the Bill provides for a limitation period of 10 years for claiming any damages arising out of any nuclear incident. This period is too small. The effects of nuclear radiation may crop up in future generations and by limiting the period for claims to 10 years the Government is blocking any help, if any, that could have been provided to the people who suffer, due to the nuclear exposure, after the period of 10 years from the incident. This limitation would also apply to any claims for compensation or damages that arise out of any damage caused to the environment, which becomes visible only later on. An example of such an aftermath is the Bhopal Gas Disaster where even today abnormalities are detected and people are suffering due to the ill-effects of MIC.^³⁹
The cost of cleanup after the Three Mile Island Accident was $ 1 Billion and it took 14 years.^⁴⁰ This was the scenario in a developed country like the United States, so we can very well imagine the kind of response a nuclear disaster would get in a developing country like India in which a large portion of the population lives Below Poverty Line and the Government fails to provide food and basic health facilities to its citizens. In such a situation the Government cannot be expected to deal with a nuclear disaster which would cause great damage to citizens and the environment of the country. We must also take into consideration the fact that the radius of the affected area was 30 miles and the damage caused was immense even though the plant was established on an island. In India the damage caused could be even higher due to the high density of population and even if the plants are located away from inhabited area, damage would be caused to environment and forests, thereby disturbing the ecological balance.

There should be proper Environment Impact Assessment before the execution of any project; a fund should be established by the Central Government and it should be mandatory for all the operators to contribute a specified sum to it before commencing their operations. This sum should be in addition to any other prescribed fee so that whenever an accident occurs, relief measures can be taken immediately and they do not have to wait for litigation. In this way people would be benefited and the sum used in any such manner and in excess of what the operator himself had paid should be reimbursed by the operator to the Central Government.

The settlement order of the Supreme Court in the Bhopal Gas Tragedy case does not mention the method of calculation of the decided compensation amount. It only says that it was the suffering of the victims and the need for immediate relief that the Supreme Court considered it necessary to come to a final decision. The Court mentioned only four categories of victims, as mentioned above, in its order. No account was taken, either by the Government of India or the Supreme Court, of the damage caused to the environment. Even today, after more than 25 years, the water which comes out of the hand pump near the epicentre of the Bhopal Gas Tragedy is green in colour and is unfit for consumption.^⁴¹ We must not once again fall prey to the lust of MNCs and should make specific provisions as to the minimum amount of compensation which the operator should pay for each category of victims and also the damages for the loss of clean and healthy environment which is now a part of life under Article 21 of the Constitution of India. The liability so fixed should be the minimum liability and not the maximum liability.
The Bill should make a specific and mandatory provision for the payment of interim compensation and for immediate measures for relief of the victims. The compensation to be paid should not be held up till the final disposal of the case. In the case of Bhopal Gas Disaster, there was no interim relief and therefore the administration was very slow in performing its function. For many days there was no relief and the victims could not receive any assistance-neither medical nor financial. No measures were taken for the improvement of the environment, even the water in many areas was rendered poisonous and unfit for consumption. The Bill should in light of these facts provide some provision for immediate and interim relief which should be payable to the local government within a fixed number of days which should not exceed 7 days. This interim compensation should be in addition to and not in lieu of the final compensation and damages payable. The availability of such a fund would enable the Government to take speedy measures for the welfare of the victims. In addition to this or in the alternative there should be a provision enabling the Government to take immediate measures for relief and rehabilitation and get reimbursement from the operator.
The Bill does not make any provision as to who would deal with the waste that is generated out of the accident and how would it be dealt with. The Bill should clearly lay down the responsibility of the persons who should take measures for detoxification and removal of the hazardous substances. The Hazardous Wastes (Management and Handling) Rules, 1989, have proved to be insufficient and incompetent to handle industrial hazardous wastes in large magnitude as the hazardous wastes from the Bhopal incident^⁴² still have not been treated properly and disposed off.^⁴³ This function should be performed or in the least funded by the operator of the plant under the polluter pays and the absolute liability principles.
The law of mass torts in India is undeveloped and the system of ex-gratia payments, setting up of commissions and committees and the institution of criminal proceedings against the perpetrators of the tortuous actions is prevalent. This kind of system only leads to undue delay in the delivery of justice to the victims of any such accident. Under such a legal regime we cannot expect the victims to be compensated adequately and their rights being vindicated. We must therefore get rid of the ‘well established, low-use, low-remedy, low-accountability system”^⁴⁴, so that the victims do not remain helpless even many years after any such accident.

1-2 Chauhan, Chetan (2010), “N-liability cap Bill slammed”, 10 March 2010, Hindustan Times, New Delhi. http://www.hindustantimes.com/rssfeed/india/N-liability-cap-Bill-slammed/Article1-517187.aspx, viewed on 10 May 2010..

3 AIR 1990 SC 273

4 (1989) 3 SCC 38

5 (1987) 1 SCR 819

6 US Nuclear Regulatory Commission (2009) “ Backgrounder on the Three Mile Island Accident”

http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html/, viewed on 10 May 2010.

7 General Public Utilities Corporation (1982), “Three Mile Island Cleanup”, available at http://www.threemileisland.org/downloads//215.pdf, viewed on 10 May 2010.

8 “International Nuclear Event Scale”, http://en.wikipedia.org/wiki/International_Nuclear_Event_Scale#cite_note-autogenerated2-1, viewed on 10 May 2010.

9 “Aid to the population in the first few days following the accident”, http://www.chernobyl.info/index.php?userhash=564160&navID=12&lID=2, viewed on 10 May 2010.

10 Bennett, Burton, Michael Repacholi and Zhanat Carr (ed.)(2006, Geneva) , “Health Effects of the Chernobyl Accident and Special Health Care Programmes: Report of the UN Chernobyl Forum Expert Group ‘Health’”, “http://www.who.int/ionizing_radiation/chernobyl/WHO%20Report%20on%20Chernobyl%20Health%20Effects%20July%2006.pdf, viewed on 10 May 2010.

11 PTI (2010), “Kerala's panel moots realisation of Rs 216 crore from Coke”, 22 March 2010, available at http://timesofindia.indiatimes.com/india/Keralas-panel-moots-realisation-of-Rs-216-crore-from-Coke/articleshow/5711980.cms, viewed on 10 May 2010.

12Section 3(a), Atomic Energy Act 1962.

13 Section 2(a) of the Environment Protection Act, 1986 defines environment. It provides that environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property. We shall use this term in this broad sense.

14 [1868] UKHL 1

15 AIR 1987 SC 1086

16 http://sedac.ciesin.org/entri/texts/oecd/OECD-4.01.html, viewed on 10 May 2010.

17 AIR 1996 SC 2715

18 (1997)2SCC411, Calcutta Tanneries Case.

19 (2005) 13 SCC 186

20 Available at http://www.nea.fr/law/nlparis_conv.html, viewed on 10 May 2010.

21 Ibid.

22 Article 7

23 Article 10

24 Article 8

25 Article V(3).The United States dollar referred to in this Convention is a unit of account equivalent to the value of the United States dollar in terms of gold on 29 April 1963, that is to say US $35 per one troy ounce of fine gold.

26 International Atomic Energy Agency,(2007, Vienna), “The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage- Explanatory Texts”, IAEA International Law Series No. 3, [STI/PUB/1279] (2007) [hereinafter Explanatory Texts] available at http://www-pub.iaea.org/MTCD/publications/PDF/Pub1279_web.pdf, viewed on 10 May 2010.

27 Article 3(3), Annex, Convention on Supplementary Compensation, 1997. Hereinafter referred as Annex. See also Explanatory Texts, Supra, Sections 1.3.1 and 3.3.2

28Article 3(5)(b), Annex

29 Article 9(1), Annex

30 Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997)9SCC552

31 AIR1992SC248, (1991)4SCC584.

32 855 F 2d 1188

33 Galanter, Marc (2009) Second Justice Shacheendra Dwivedi Memorial Lecture, “A Deficit in Tort Accountability”, National Law Institute University, Bhopal, 10^th December 2009.

34 Dhawan, Rajeev (2001) “Big Bad Things”. http://www.thehindu.com/thehindu/2001/02/09/stories/05092523.htm, viewed on 10 May 2010.

35Zee News (2010)“Three killed, 17 hurt in train mishap due to fog in UP”, http://www.zeenews.com/news596246.html, viewed on 10 May 2010.. See also Government of India, Ministry of Railways, http://www.indianrailways.gov.in/deptts/personnel/ex-gratia.htm, viewed on 10 May 2010.

36Sharma, Devinder (2004) “Government’s Change: But No Respite from Farmers Suicides”, http://www.mindfully.org/WTO/2004/India-Farmers-Suicides3jun04.htm, viewed on 10 May 2010.

37 Clause 6(2), Civil Liability for Nuclear Damage Bill, 2010.

38 Clause 45, Ibid.

39 Agarwal, Kangna (2009), “25 years on, Bhopal gas leak survivors still sick”, available at http://www.themedguru.com/20091202/newsfeature/25-years-bhopal-gas-leak-survivors-still-sick-86131296.html, viewed on 10 May 2010.

40 World Nuclear Association (2001), “Three Mile Island Accident”, available at http://www.world-nuclear.org/info/inf36.html. See also (1993), “14-Year Cleanup at Three Mile Island Concludes”, New York Times, 15 August 1993, available at http://www.nytimes.com/1993/08/15/us/14-year-cleanup-at-three-mile-island-concludes.html?pagewanted=1, viewed on 10 May 2010.

41 An account of personal visit to the site.

42 Angelo, Chryso D (2009), “Toxins still killing 25 years after Bhopal gas leak”, available at http://www.twnside.org.sg/title2/resurgence/2009/231-232/health01.htm, viewed on 10 May 2010.

43 Indo-Asian News Service, (2010)“Union Carbide's waste disposal trial run a farce: Activists”, 21 February 2010, available at http://www.thaindian.com/newsportal/enviornment/union-carbides-waste-disposal-trial-run-a-farce-activists_100323882.html, viewed on 10 May 2010.

44 Gallanter, supra.

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II Sui generis Option and Plant Varieties Protection in India

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IV New Seeds Bill, 2004 and Its impact upon the Protection of Plant Varieties

V Conclusion

Is Prostitute A Criminal Or Victim?

Exclusive Rights Of Patents Versus Compulsory Licensing: A Critical Analysis

Law And Policy On Concept Of Creamy Layer

Judicial Activism And Public Interest Litigation In India

The Civil Liability for Nuclear Accidents Bill, 2010: A Critique

Introduction

Background

The Indo- U.S. Nuclear Deal

Bhopal Gas Disaster

Other Industrial Disasters

The Three Mile Island Accident

Chernobyl Disaster

Coca Cola Case in Kerala

Existing Laws

The Constitution of India

Environment Protection Act, 1986

Atomic Energy Act, 1962

Judicial Decisions

Absolute Liability Principle

Polluter Pays Principle and the Precautionary Principle

International Conventions/ Treaties

Paris Convention on Nuclear Third Party Liability, 1960

Vienna Convention on Civil Liability for Nuclear Damage, 1963

Convention on Supplementary Compensation, 1997 (CSC)

Mass Torts

Controversial Provisions of the Bill

Comments and Suggestions