Libertatem Magazine - Issue 2 [Mar 2015]

THE LAW BRIGADE GROUP IN ASSOCIATION WITH DEADLYLAW PRESENTS March 15, 2015 Issue 2 Union Budget 2015-16: Tipping the Scales? Pg. 06 Parley with the Pirates: Justice R.R Tripathi - Pg. 08 Honour Killing A Social Evil - Pg. 12 AIB Roast Is it protected under Freedom of Speech & Expression? - Pg. 17 Marital Rape The Cry of Indian Wives - Pg. 22

PATRON DR. PURVI POKHARIYAL [DIRECTOR, INSTITUTE OF LAW, NIRMA UNIVERSITY] DR. A. LAKSHMINATH [PRO CHANCELLOR/ VICE CHANCELLOR, CHANAKYA NATIONAL LAW UNIVERSITY, PATNA ] DR. BORBALA FELLEGI [DIRECTOR, FORESEE RESEARCH GROUP, HUNGARY ] DR. HOWARD WILLIAMSON[DIRECTOR, CENTRE FOR SOCIAL POLICY, UNIVERSITY OF SOUTH WALES, UNITED KINGDOM ] FOUNDERS ANKITA RANAWAT RAHUL RANJAN EDITOR-IN-CHIEF SWARNABH DUTTA SENIOR EDITORS ASSOCIATE EDITORSDR. HARMIK VAISHNAV AKSHAY DIXITDR. RACHNA CHOUDHARY ANCHIT BHANDARIPROF. OWAIS HASAN KHANPROF. SILKY MUKHERJEE AVINASH KUMARPROF. VICTOR NAYAK DHANANJAY KHASHYAPADV. JAYESH PATELPROF. PETER LADIS HARSH RATHIDR. AHMAD GHOURI MADHAV KUMARSR. ADV. ASIM PANDYASHHAURYA SAH NADA FARUQIPROF. DABIRU PATNAIK RIMA PATNIASHISH SINHASUVAJIT CHAKRABORTY SHUBHENDU MISHRA TEJASWINI RANJAN URVASHI JASWANI Visit us at www.thelawbrigade.com www.mylibertatem.com

Model Governance Foundation welcomes you to take part in ‘Samvaad’ which will be held on26th to 28th June, 2015 in New Delhi.The theme for Samvaad is “Ek Bharat, Shreshth Bharat”. Model Governance Foundation is excited to host the event in cooperation with eminent organizations like Adhrit Foundation, Advitya Ventures, Agrasar Foundation, Alexis Society, Bharat Sansthan and India Leadership Institute.This three day event will focus on fostering leadership qualities amongst students and young professionals by opening a cross-cultural dialogue on issues of national and international relevance. Samvaad will also provide ample opportunities for business networking with visionary entrepreneurs and industry experts around the world. Each one of our speakers is an expert in their respective fields with years of experience. Join us at Samvaad for your chance to hear these specialists, as they share with you the latest trends, insights and strategies on various issues of their expertise.Events:Formal EventsDebateUniform Civil Code Misuse of Sexual Harassment LawsCall for Papers Interactive Lectures by Eminent Personalities Debating Sessions Group DiscussionsInformal EventsLife Mapping ExerciseLeadership Development Conversation


 About LibertatemIN THIS ISSUE The Libertatem Magazine is a Law Magazine launched by The Law Brigade, a startup of twoEDITORIAL Union Budget 2015-16: students from Institute of Law, Nirma University, Tipping the scales? Ahmedabad; Ankita Ranawat & Rahul Ranjan. The Group's name, \"The Law Brigade\" should be takenIN FOCUS Parley with the Pirates: as a fire brigade which reaches where there is fire. Justice R.R Tripathi The fire which is present in the law students and members of the legal arena. Libertatem is a latinARTICLES Armed Forces Special Power word meaning a sense of freedom of expression. It Act: In the eyes of a student channelizes this expression of the person who has something to express irrespective of the fact that Basic Structure & The what the CV of that person says, which is given a Independence of Judiciary very high value and everybody is in a rat race to build it. It provides a platform to people who have Honour Killing: A Social Evil something to express for the welfare of the community at large. A joint effort of students and Real Regulatory Body: deadly law this a medium for the maximum PNGRB or the CCI utilisation by all of you. AIB Roast: Is it protected Through this platform students will be getting to under Freedom of Speech & know about the talk of the town of the legal arena, Expression? call for papers, MUN’s taking place and other related things which a student should do and are Legal Prostitutes: Cry of the there for welfare. People will also get to know about Indian Wives the ideas of the eminent personalities as there interviews which in turn are a message will be there Arbitration - An Alternative in the magazine itself. A picture gallery is also to Litigation waiting for you all which will be having a greater impact.JOURNAL SECTION Forest Rights Act towards it’s Dusk So, to broaden the scope of your knowledge and to get out of stereotype journals this is an arena for you all to express and get impress.(C) All Rights Reserved by The Law Brigade Group *Disclaimer - The views expressed in the www.thelawbrigade.com articles of this Issue are the personal views of authors and are purely informative.


 5 Real Regulatory Body: PNGRB or the CCIContents of this Issue by Aparajita Anand pg. 141 Union Budget 2015-16: 6 AIB Roast: Is it a Tipping the scales? violation of Freedom of Speech & Expression? by Nada Faruqi pg. 6 by Anjali Rawat pg. 172 Parley With The Pirates 7 Armed Forces Special - Justice R.R Tripathi Power Act: In the eyes of a Student pg. 8 by Manas Daga pg. 193 Arbitration - An 8 Marital Rape: Cry of Alternative to the Indian Wives Litigation by Aparajita Karki pg. 22 by Adv. Pallab Das pg. 104 Honour Killing: A Social 9 Forest Rights Act Evil towards it’s Dusk by Devita Shah pg. 12 by Madhav Kumar pg. 25

Cover Story Union Budget 2015-16: Tipping the Scales? by Nada Faruqi [Aligarh Muslim University] 28-Feb-2015. Union Budget 2015-16 was vulnerable sections of the society in the form of presented amidst fervent hopes tempered with three insurance schemes– Pradhan Mantri Suraksha diverse insecurities. The BJP having swept to polls Bima Yojana which will cover accidental death last year largely on the 'Development' card, the insurance, Atal Pension Yojana, a contributory common man hoped not to be taken for a casual pension scheme and the Pradhan Mantri Jeevan ride this time. While the opposition cried the 'pro- Jyoti Bima Yojana to provide natural and accidental corporate, anti-poor' rhetoric, Finance Minister death insurance were hailed but criticized mainly Arun Jaitley was found promoting the round-the- on the grounds of being too far-fetched for the poor. clock, round-the-year government narrative. \"The Nikhil Dey of Mazdoor Kisan Shakti Sangathan also credibility of the Indian economy has been re- pushed for the enactment of a 'universal pension established, the world is predicting that it's India's scheme' to ensure \"true social security\" (The Hindu, chance to fly,\" avowed Mr. Jaitley. With the many 1st March, 2015). The additional surcharge to be benefits to middle-class taxpayers such as the levied on the rich taxpayers is a fine move towards increase in the limit of deduction of health striking a balance. A stringent law for black-money insurance premium, the increase in the deduction hoarders and the proposed Indian Financial Code limit towards the expenditure with respect to were good pointers, notwithstanding the fact that specified diseases of serious nature in case of very making of laws is one thing in India and senior citizens, additional deduction for differently- implementation is another. In a bid to \"cut overseas abled persons, service-tax exemption on Varishtha gold demand”, Gold Monetisation Scheme has Bima Yojana; FM might have managed to generate been proposed by Mr. Jaitley. This will indeed be a many a smile but surely not devoid of game-changer as has been promised, if done with apprehensions. The hike in service tax and all seriousness and intent. Also, the NDA education cess, with the reduction in corporate tax government has surprisingly allocated funds to the served as differently seasoned morsels of a already existing schemes such as MGNREGA that seemingly fine dish. The safety net for the were being dubbed as 'baggage' of the UPA6

government. However, the doubling-up of the nothing but Hope to his last resort. We hope thatNirbhaya Fund and the allocation of Rs. 1,000 the proposed shade of development does notcrore to the 'Beti Bachao, Beti Padhao' scheme, come with over-priced tags that we, at thecame as confirmatory steps towards women issues. moment, cannot afford. Or shall we do it at theCountless schemes have managed to budge the cost of the poor? Indian politics needs a breath ofnational conscience in the affirmative, but the fresh air, urgently. With reference to the Unionmorrows shall ultimately settle on the intent and Budget, the signs are slightly hazy but definitelysubstance. not absent.Hopeless; resulting from the successive failures ofhis own electoral choices, the common man has 7

PARLEY WITH THE PIRATES: JUSTICE R. R. TRIPATHI We, at Libertatem  begin with a tradition of roping in those individuals who have marked their presence and have become an inspiration for all of us. Our main intention behind this tradition is to have a look at these individuals, their take on life and on the issues encircling our fraternity. And we tag this as “Parley with the Pirates”. The Law Brigade’s Media Team had the opportunity of interviewing Hon’ble Justice Ravi R. Tripathi, Judge, High Court of Gujarat. Justice Tripathi is well regarded in the legal fraternity for his vociferous judgments. In the recent case of Adam B. Chaki v. Government of India, regarding the constitutionality of a scheme proposed by the Central Government to provide scholarship to religious minorities, Justice Tripathi in a powerful dissenting opinion stated that the distinction was solely based on religion and was therefore unreasonable. He stated, “If it can be shown that the criterion adopted for determining backwardness is useless as a test of backwardness, so that the preference given to them virtually amounts to a preference on the ground of religion alone, the description as backward will be illusory or fictitious.” 
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Justice Tripathi’s erudite and well reasoned dissent is a sheer delight to read. He is currently heading thedivision bench hearing of the appeal in the Naroda Patiya case.Here’s what Justice Tripathi has to say about how to become a good lawyer and the virtues he wants to seein the future generation lawyers.“I would repeat what Justice Dave used to say on how to be a good advocate. I believe one should be a goodhuman being first and then one will automatically become a good lawyer without having to put in any extraeffort.I personally feel that the students must have more values, particularly honesty and integrity since this is oneprofession where there are slippery grounds. Especially in the best years of a person’s career, it is very easyto slip off this path of honesty and integrity. I will advise you to imbibe these two values of life: honesty andintegrity and the rest of the things will take care of themselves.”When we asked Justice Tripathi about any quality that the bar lacks, Your Lordship replied, “This question isperennially asked to the judges about the bar and the bar about the judges. And the answers are oftenfound to be conflicting.” (Laughs)Recalling an interesting anecdote, Justice Tripathi said, “Once a party was appearing in person. The judgeasked him why he did not get a lawyer to defend himself when any lawyer would have done the job for 25paise (in his time). The fellow went to the bar and said that the judge has said that any lawyer will beavailable for 25 paisa. The lawyer replied, all those lawyers who were available for 25 paisa have nowbecome judges and so no lawyer is available for 25 paisa.” (Laughs)He added, “Probably this is my personal perception, but I feel that sincerity is lacking (in the bar). I have nohesitation in telling you that I come across many cases where the lawyers are without papers. Forget aboutthe reading the document, they do not even have the physical possession of the papers. If they have thepossession of the papers, they are not read. If they are read I’m sure they will be able to make out a case,but if they are not read, it is very difficult for them to make out a case. Then they accuse the judge that theyare very strict and are not giving the orders. Sincerity is one most important thing that the bar must have.And as is very rightly said, you start loving your work and the work will automatically get you success.” 
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Are there any alternative ARBITRATION: ANmod
 es available if we thinkin terms of changing theadministration of Justice? I ALTERNATE TOcan recall the famous quotestated by Lord Devlin: “Themain field of Justice is not LITIGATIONlitigation but non- litigation.”The Arbitration laws firstemanated with the legislationof Arbitration (Protocol andConvention) Act, 1937, The ~ADV. PALLAB DASArbitration Act, 1940 and theForeign Awards (Recognition [ADVOCATE, ORISSA HIGH COURT]and Enforcement ) Act, 1961 business transaction is the huge expenseswhich were replaced by The Arbitration and involve in it. Alternatively, parties are trying toConciliation Act, 1996. The fact that the avoid such cost by choosing arbitration whichSupreme Court have time and again seems to be cheaper and less expensive. Inemphasized the need of out-of-court settlement many parts of India, rapid development hascan been seen in the judgments in Trustees of meant increased caseloads for alreadythe port of Madras v. Engineering overburdened courts, further leading toConstructions Corporation Ltd and in M/s. notoriously slow adjudication of commercialGuru Nanak Foundation v. M/s. Rattam Singh disputes (nearly 30 million cases pending). As aand Sons. Moreover, business transactions has result, alternative dispute resolutionin recent time been able to pushforward crossing more and morenational boundaries involvingmore individuals, corporations aswell as different governments.This can be said to be obtainingdue to factors such astechnological development,international treaties targeted atpromoting business acrossboundaries, and especially morealternative ways of settlingdisputes associated with suchbusinesses other than thetraditional litigation. Parties ininternational businesstransactions can settle any arisingdispute either by litigation,arbitration and other alternativeways of dispute settlement; this will mechanisms, including arbitration, haveonly depend on the choice of the contracting become more crucial for businesses operating inparties in such business. Litigation has been India as well as those doing businesses with associated with several demerits and trends. Indian firms. This article highlights that there One of these trends of using litigation in is an alternative to litigation i.e. Arbitration10 settling disputes in international which is soon becoming a viable option to

litigation in India. choice of a decision maker or the arbitrator. Keeping in mind the three prime must have traitsArbitration at the present day and age being in an arbitrator and also for the arbitrator by thedriven by a private agreement has helped parties that is neutrality, trust and respect anddevelop the idea of ‘people’s law for people’s dignity, arbitration provides a platform to appointservice. A good starting point would be to know an arbitrator having great technical expertise orwhy arbitration as a dispute resolution has knowledge of business practice with regard to thegained a lot of popularity in recent times and specific area of interest of the parties. Moreoverwhat are the statistics related to that upward almost all of the prime arbitration proceedingstrajectory of popularity. A study conducted by give utmost prominence to privacy which is inPrice Waterhouse and Coopers in 2013, where general a big stumble block in litigationthey interviewed counsels of various legal proceedings as the information which is providedestablishments and corporate entities of as evidence or otherwise may be sensitive andgovernment sector, private, non-profit sector and should not be debated upon in a public forum.others came to the conclusion that nearly 83% of Arbitration proceedings provide minimumestablishments having a dispute resolution policy publicity and the arbitral awards are subject towould tend to have arbitration clause in their limited review. In other words arbitration is acontracts and by doing so they didn’t submit method of convenience where remedy of finality istheir disputes to the judiciary for disposal. This awarded.to an extent proves that arbitration typicallyknown as an ‘Alternate’ form of resolution of Quoting the father of the nation Mahatma Gandhidispute is now a mainstream form of dispute said “I had learnt the true practice of law. I hadresolution as so far as commercial disputes are learnt to find out the better side of human natureconcerned. If the scenario with regard to the and to enter men’s heart. I realized that the trueeconomic trend is taken into account for function of a lawyer is to unite the parties involvedarbitration, then it can be termed as a in a dispute. The lesson was so indelibly burnt intobusinessman’s method of resolving disputes. me that the large part of my time during theArbitration is basically a private system of twenty years of my practice as a lawyer wasdispute resolution. The jurisdiction of arbitration occupied in bringing about private compromises oftribunal doesn’t emanate from statute such as hundreds of cases. I lost nothing, there by not evencivil procedure code or criminal procedure code or money and certainly not my soul”. This passagethe constitution of India. It traces its jurisdiction can be deduced to understand the concern thatto a simple agreement between two private the great leader thought of at that point of timeparties. A simple act of consent between two regarding the fact that lawyers while representingparties in writing that forms an agreement can their parties become confrontational and enmitygive rise to an arbitration tribunal to resolve takes over which can rather be resolved byrelated disputes. One can say that it is a non settling the matter through alternative disputenational system of dispute resolution as the mechanisms like arbitration. Mahatma Gandhidispute resolution forum can also be at an during his first brief as a lawyer in South Africainternational level like the ICC in Paris or any dealt with arbitration.other international arbitral institution. Therefore, arbitration one can say is like an artThe general impression is that arbitration scores form wherein one needs to have skill andbig over litigation when it comes to time and cost experience to quickly provide justice in a strongsaving factors, preserving social relationships to a manner as compared to the litigation system. Thebetter extent, if not reducing then at least keeping role of lawyers, justices and others involved in thethe backlog rate of courts at par and it being a system plays an integral role in sustainingformal and swift method for resolution of disputes arbitration as an alternative to litigation.as compared to courts. But these are not the onlyadvantages that give arbitration a superior stage. 11One of the foremost advantages of availingarbitration as a means of dispute resolution is the

Honour KillingA Social Evil- by Devita Shah [KLE Society Law College, Bangalore]The term honour sounds respectable but when it is linked with killing someone it becomes a heinouscrime. The recent uprisal of this phenomenon witnessed through many cases and instances have ledus to cogitate over it. The definition of the phrase 'honour killing' has been interpreted in the manneri.e. customary killing of a person or member of a family or a social group by other fellow member whoare held to have brought dishonour upon the family. However, it makes to think that what honour isenvisaged in killing their own family members. The only reason a person has done something whichthe rest of the family members do not approved or has violated the so called strictly applicable laws ofa particular society does not give them any right to kill them. The question still remains unasnweredthat how can it be moral to kill anyone who tries to act according to their own whims and fancies.This is the mere perception that women are considered to be the honour of the family and they haveto maintain their chastity and not to indulge in any violations of the prescribed set of rules. So theyare tended to be the real victim of such cases. If suspected of committing premarital sex or adulterythey are immediately killed to save the so called fake ‘honor’ of the family. Even if the women is not atfault, for instance if she is a rape victim, even then she is the culprit that she was raped. The malemembers of the family either kill the women or she is married away to the rapist to save the familyfrom any disgrace. The criterion guided by the male members to their counterparts firmly establishes that they have tobehave and conduct themselves in a particular manner and any violation of those prescribed norms is‘dishonour’ to the family and she is to repent that by her life. Statistics reveals that internationallyevery year 1 out of every 5 cases of honour killing has found its pre-dominance in India. The generalview about the honour killing is that it happens generally in village but that is not the truth. Even inthe metropolitan cities like Delhi and Mumbai, these sorts of cases are prevalent. Aggrieved party hasno other option except to knocking the door of the court of law for justice to be done. Looking into a very controversial conviction of Noida based Dentist couple for double murder of a 14 year old school girl, Arushi Talwar and a 50 year old domestic helper. The Talwars, parents of the girl were charged with murder and the main motive has always been attributed as honour12 killing.

One of the very reasons for attributing such motive is that the dentist couple had found their daughter and the helper in an 'objectionable ' position. Although the circumstantial evidence has however left many unconvinced but irrespective of what the truth is, Arushi's case has been in limelight on honour killing. The saga of this brutal torture has been found to be deeply embedded in the Northern states wherein the Khap panchayats have presumed the responsibilty of establishing such norms which they deemed fit for the rest of the society. In the name of custom and tradition they have initiated the battle of killing individuals who have dishonoured their families in any manner. For instance in Subalpur village of West Bengal’s Birham district, a 20- year old tribal woman was gang raped by a dozen men as punishment for alleged immoral conduct, is shocking. The decision given by the head of the Kangaroo court was questioned before the Supreme Court. In a landmark judgement of Arumugan Sevai case, the court directed the administrative and police officials to take the strong measures to prevent such atrocities and should take strict action against the District Magistrate also. Several attempts have been made to usurp the role taken for granted by these Khap Panchayats and Kangaroo courts and these matters have also been taken before court of law for the lying interest of the downtrodden masses. It is also another truth that people have lost faith in the police, and that is the reason why these courts are taking advantage in their respective places. However, taking these people before court is not going to curb this problembecause court has already declared them as illegal and wants it to be stamped out. The need is notto stop the criminal but to eradicate the crime. There is an urgent need for providing the sameplatform to the girls who are still considered as curse in some places. Only punishing a few peoplewould not change the way of thinking of these masses. Social attitude of the society is very muchneeded to be changed, if the country is to ensure gender equality and protection for all women.Women are not just play things in the hands of the male members, they have their own life andhave every right to make their own decisions and the men have to learn to respect that. A change inattitude is what is needed to protect the women of the society and to ensure their well-being. Everyindividual has right to live in themanner they want to, whichshould be respected in everyphase of society otherwise itwould lead to a situation wherethe innocents are beingstrangulated by the perpetratorswho have self assumed theresponsibility to 'clean' thesociety.
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Real Regulatory Body:PNGRB or the CCIby - Aparajita Anand [college of Legal Studies, UPES, Dehradun]“India should avoid too many regulations.”               -Dr. Rangarajan (Former RBI governor)Regulatory   reforms   have   played   vital   role   in   this   larger   and   upcoming   economy.   The   enterprises   in  developing   countries   face   the   liberalization   of   markets.   Guiding   these,   not   only   the   regulatory   process   but  also   competition   law   and   policy   have   been   among   those   challenges.   During   1980s   –   1990s,   several   countries  started   processing   economic   liberalization   and   adopted   policies   of   privatization,   trade   liberalization   and  deregulation.  Countries  face  different  outcomes  by  the  virtue  of  different  mechanism  in  competition  maFers.  Such   different   mechanism   create   not   only   the   confusions   from   stake   holder’s   perspective   but   also   lead   to  forum   shopping   such   differences   reflects   the   absence   of   clearly   defined   jurisdictions   in   the   maFers   of  regulation,  leaving  the  interface  and  turf  between  two  authorities  in  handling  maFers  related  to  competition.  This  industry  is  one  of  the  upcoming  and  complete  industries  of  Indian  economy  absorbing  the  extremes  of  monopoly  and  the  already  prevailing  competition.  It  is  not  a  hidden  observation  that  the  flows  in  Petroleum  Industry   are   extremely   large   when   compared   to   the   extraction   of   petroleum   from   underground   reserves.  Petrol  and  high  speed  diesel  oil  are  the  reasons  of  running  motor  vehicles.  Both  these  fuels  are  derived  from  the   mineral   oil.   This   very   fact   brings   in   the   third   part   of   petroleum   industry   that   is   ‘downstream’   which   is   responsible   for   the   distribution   of   products.   The   downstream   sector   is   further   sub-­‐‑divided   in   four   categories:-­‐‑  1)Exploration  and  production,  2)  Refining  and  marketing,  3)  Transportation  and  marketing,   4)Crude  oil  and  petroleum  products  pipelines.14

Focusing  on  downstream  sector,  PNGRB  (Petroleum  and  Natural  Gas  Regulatory  Board)  act,  2006.  This  board  is  vested  with  statutory  genesis  that  gives  the  independency  to  this  regulatory  board.  The  objective  of  this  act  is  not  only  the  regulation  of  anti-­‐‑competitive  behaviour  but  also  to  govern  the  policies  involved  in  its  pricing.  In  a  landmark  case  by  the  appellate  tribunal  of  electricity,  the  role  of  PNGRB  was  brilliantly  examined  in  the  presence  of  government’s  regulatory  bodies.  The  judgment  in  this  case  established  that  section  11  and  section  12   of   PNGRB   shall   execute   its   duties   and   take   measures   to   foster   the   trade   practices   interfaced   with  competition  with  other  entities.  Section  2  (X)  of  the  PNGRB  act  has  excluded  the  government  to  fix  the  prices  and  has  provided  the  entities  to  function  the  price.  The  competition  authority  has  been  vested  with  the  rights  for   providing   expert   reports   and   comments   to   the   specific   regulator.   The   competition   authority   acts   as   a  principal   when   it   comes   to   enforcing   and   guide   competition   issues   in   the   market.   Indian   regulators   find   it  favourable  to  exclude  competition  authority  with  the  retained  responsibility  of  decisive  nature.  The  conflicts  occur  in  between  sectoral  regulator  and  competition  authorities  for  the  purpose  of  regulating  a  sector  which  could  be  implemented  in  numerous  ways,  though  the  mechanism  under  Section  21  of  the  competition  act  and  the   MoUs   signed   between   Competition   commission   of   India   and   the   regulators   also   amounts   as   one   of   the  ways   to   regulate   market.   The   high   going   prices   of   oil   and   Gas   have   inferred   the   expectations   of   increased  range   of   investments  i n   t h e   fi e l d   o f  e x p l o r a t i o n   a n d  production   with   the  challenges   occurring  due   to   service   costs,  difficulty   in   logistic  t e r r a i n   a n d  m a n p o w e r .   T h e  competition   authority  has   always   assessed  to   the   lawfulness   of  the   conduct   by   the  v i r t u e   o f   p r i v a t e  parties   that   brings   in  various   issues   before  the   authority   for   the  purpose   of   modifying  t h e   u n l a w f u l  c o n d u c t s   i n   t h e  m a r k e t .   T h e s e  irregularities   in   the  market   prohibit   the  activities   like   the  price   fixation,   bid  rigging  and  the  things  not   to   do   by   the  market   agents.   The  specific   sectoral   regulators   in   such   cases   have   ex   ante   powers.   These   discretionary   powers   bring   the  concurrent   turf   wars   between   the   Competition   Commission   of   India   and   specific   sectoral   regulations  hindering   the   regulations   in   market.   The   competition   Commission   of   India   and   sector   specific   regulations  have   been   capable   in   showing   the   distinctive   challenges   in   competition   law,   and   both   the   regulatory   can   be  complimentary.    The  question  arises  that,  in  case  of  any  interface,  which  regulatory  body  shall  come  in  picture  to   resolve   it   that   causes   a   source   of   tension.   The   solution   to   this   conflict   of   interface   could   be   that   the   sector  specific   regulations   shall   identify   the   ex   ante   problems   and   address   such   issues   even   before   the   problem  incurs   whereas   the   CCI   addresses   the   ex   post   problems   in   the   prevailing   marketing   condition.   In   the  instant  case  that  shows  the  conflict  between  the  two  irregularities,  but  in  terms  of  legal  interpretations  and  view,  we  shall  find  that  there  is  no  overlapping  between  the  two  regulatory  bodies.     15

Observing   the   origin   of   the   source   of   conflict,   Section   18   of   the   competition   act   and   PNGRB’s   preamble   inscribe   the   fundamental   duty   of   the   competition   to   sustain   the   economy   of   India   and   to   curb   practices   that   affects   competition   adversely   and   to   protect   the   interest   of   the   consumers.   But,   it   has   always   remained  numb  with  respect  to  sector  specific  regulation.  With  Section  60  of  the  competition  act,  the  CCI   has  a  primary  law  in  consistent  with  other  acts  in  force.  Adding  to  it,  Section  62  of  the  act  says  to  work  in   conjunction   with   other   statutes.   On   other   hand,   the   preamble   of   PNGRB   gives   the   board,   the   power   to   regulate   refining,   processing,   storage   and   transportation,   marketing,   distribution   and   sale   of   petroleum   consumer’s   interest.   Therefore,   with   the   already   existing   Competition   act,   the   PNGRB   shall   promote   the   market’s   competency.   If   given   a   glance   to   the   intention   of   the   legislature,   with   the   general   rule   that   the   later  intention  of  the  legislature  should  prevail  over  n  earlier  enactment.  Section  11  and  section  12  of  the   PNGRB   Act   shall   be   responsible   to   maintain   fair   trade   practices   in   competitive   market.   Ironically,   the   legislation  does  not  define  as  to  what  shall  be  constituted  as  unfair  trading  in  the  market.  This  results  as   marketing  PNGRB  body  with  no  tooth  to  tackle  competition.   Endorsing   Dr.   Rangarajan’s   view,   to   entertain   new   discovery   and   invention,   there   has   to   be   a   body   familiar   with   the   idea   of   the   discovery   to   govern   it.   Since,   the   other   regulatory   body   that   has   no   idea   about  the  technicality  involved  cannot  regulate  such  upcoming  impacts  of  discovery.   With   this   article,   I   would   present   three   major   findings,   1)   Sectoral  regulations  are  the  need.  2)  Co-­‐‑existence  of  competition   act   and   PNGRB.   3)   Over   lapping   of   jurisdiction   and   with   these   findings,   I   would   recommend   that   the   Commission   shall   pitch   in   with   the   competition   issues   and   not   intend   to   gain   the   regulatory   objectives.   This   interface   is   unique   in   itself.   If   addressed   correctly   without   avoiding   forum   shopping   shall   propagate   the   new   discoveries   to   lay   its   advantages   impact   in   India   and   in   the   interest   of   consumers.   In   the   past   decades,   our   economy   has   absorbed   a   spurt   in   massive   growth.   These   observations   reflect   that   the   completion   regulation   and   sector   specific   regulation   shall   work   in   conjunction   to   give   a   complimentary   advancement   and   aim   to   cultivate   consumer’s   welfare.   
16

AIB Roast: Is it protected underFreedom of Speech & Expression? by Anjali Rawat [Ram Manohar Lohiya National Law University, Lucknow]The society is filled with “he said, she said” talks. Out if these, some are true and some are just farfetchedtruth or exaggerated versions of the truth, which might result in deterioration of an individual’s reputationleading to his boycott or some other kind of hurtful acts by the society. This is called defamation. A moretechnical definition can be found under Section 499 of Indian Penal Code, 1860 which clearly means thatdefaming someone is an offence under the penal law and thus the person found guilty of it will be eitherimprisoned or had to pay fine or both, according to Section 500 of the same code. But penal law is not theonly remedy for the victim. The victim may file a suit under civil law, can ask for damages and return to hisformer self with a clean name. So which one to choose? I would go for civil suit. Why would I do so? Ofcourse I’ll be frustrated with the person responsible for ruining my reputation and causing me so manyproblems, so why? Because I think that many times a person doesn’t intend to defame others, thedefamatory statement might be his own opinion and Article 19 of Indian Constitution gives us the freedomof speech and expression.I can understand that many times the act of defamation may lead to some grave damage which might beirretrievable but on the stake of a fundamental right, giving legality to such provisions is wrong and againstconstitutional morality. This is not a mere assertion. Criminal defamation in each and every way is againstArticle 19 and we need to do away with it. Its effect may not be direct however, is still present. Forexample-Let’s talk about the recent AIB Roast controversy. Of course it’s not related to defamation but it’s indeedrelated to freedom of speech and expression. When AIB crew and the Bollywood stars did this act many, asper their morality criticized them, and AIB said that they just practiced their right under Article 19, which iscorrect. Then, Amir Khan expressed his intolerance towards this act and people for not being open-mindedheavily criticized him. Although I am not sure but I think that this reaction by people against Amir Khanaffected other stars and thus Kareena Kapoor and Shahrukh Khan in a very diplomatic way stayed awayfrom taking any stand regarding this matter. Did you see what happened? When Amir Khan took hisstand, he exercised his freedom of speech and expression and was greatly criticized. This 17criticism in a way prevented others from expressing their own views and thus the freedom of

speech and expression was not exercised. On the same lines what if there is a news channel A, which aired something about a minister B and he though it to be defamatory. B filed a case of criminal defamation against the chairman of A and won the case. Thus, the chairman was sent to jail. Now other news channel will avoid saying anything wrong about B because they are afraid of defamation law, which might lead to their imprisonment. In the AIB Roast example Amir Khan just faced criticism and the other stars started avoiding the topic. In the news channel example a person would be imprisoned and imprisonment is not a small issue. A person when sent to prison has a tag of a criminal with him and this will hounds him throughout his life. When you read it in a hypothetical situation you might not feel much concerned about it but imagine it in the macroscopic level where the opinion expressed concerns the country. Recently when AIADMK supremo Jayalalithaa filed five case of criminal defamation against BJP leader Subramanian Swamy, he challenged the legality of Section 499 and Section 500 of Indian Penal Code, 1860. He argued that expression of an individual’s opinion for the country or for social interest should outweigh the right to reputation, a personal right and that the law of defamation has just become a tool of harassment. The court while summarising these contentions opined that- \"In a democratic body polity, public opinion, public perception and public criticism, are the three fundamental pillars to guide and control the executive action and, if they are scuttled or fettered or bound by launching criminal prosecution, it would affect the growth of a healthy and matured democracy.\" It’s high time that India realises it and walk on the path paved by United Kingdom. The Parliament of UK has abolished sedition and criminal defamation in 2009. Also the Parliament came up with The Defamation Act, 2013 which strives to regulate the balance between the protection of reputation and freedom of speech and expression. Though in India tort laws doesn’t prevail much but decriminalising defamation is progressive step and India should take it. 
18

Armed ForcesSpecial Power Act: In the eyes of a Student by Manas Daga [College of Legal Studies, UPES, Dehradun]AFSPA, Armed Forces Special Power Act or ‘Right to Kill’ act. This act gives the complete autonomy to thesoldiers to kill someone just on the basis of suspicion. Even after more than 65 years of independence,India has failed to germinate the seed of providing the basic fundamental rights such as right to life to theentire citizen of the country.The Armed Forced Special Power Act is an act which has empowered armed and paramilitary forces to dealeffectively in disturbed areas. “Disturbed areas” means an area which is declared to be a disturbed area forthe time being by the Governor of that State or by the Central Government. This act provides special legalsecurity in the states of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura and J& K.The Armed Forces Special Power Ordinance was promulgated by the British to suppress the Quit IndiaMovement and to put the eminent leaders behind the bars. In August 1947 both India and Pakistan tastethe flavor of freedom after the struggle of 200 years. But few years after the independence, Jawahar LalNehru faced its first insurgency in Naga district in Assam state. In 1954, the Nagas began an insurgency fortheir independence and Indian government responded to it by sending the thousands of military forces tocrush the rebellion. And this added fuel to the fire which led to the start of an intense cycle of violence. Tofurther stop the insurgency, the government brought the Armed Forces Special Power Act in 1958.There is no shame in saying that till now India is not able to control the infiltration of its neighbouringcountries. Every day we see that number of militants and terrorists from China and Pakistan come in theterritory of India. The sole purpose of these persons is to hamper the peace and harmony of the state.These people try to influence people to go against the government of India or set up training campfor the purpose of teaching the students the methods of terrorism. They Teach the children how 19

to launch attacks ranging to suicide bombing practice in the field of terrorism. Therefore to avoid these kinds of disturbances in the country, the government is not ready to repeal AFSPA, as this act will provide the complete independence to army militants in their working. So if a soldier found any person indulging himself in an act which is against the nation interest, hampering the peace and integrity of the country, he has all the right to take him into the custody without any warrant. But instead these special rights are being misused by the military men. Since the incorporation of this act, this act has received a lot of criticism from various national as well as international human rights organizations. This act was actually made to control terrorism and maintain peace in the country but now this act has taken another shape. This act has allowed the ‘gunda raaj’ of Indian Army. This act gives full power to the armed forces to kill and arrest anyone just on the basis of suspicion. So the number of cases of fake encounters has increased drastically in these areas. The act also provides the power to military men to enter and search any premise without any warrant. This act even restricts more than five persons to assemble in a group. This act also protects the soldiers from the legal consequences this means that they kill someone and can’t be prosecuted for their wrongful act. It is upto the discretion of the government to declare a particular area ‘disturbed’ which can’t be challenged in the court of law. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State players are never being justified no matter what may be the end. AFSPA has failed to curb the insurgency problems in the Northern East States. In 1980 there were only four armed opposition groups in Manipur nut now this number has reached to twelve. When AFSPA was formed in 1958 there were no adequate laws to deal with terrorism and insurgent groups but now we have various laws to deal with the insurgent groups and their unlawful activities like Prevention of Terrorism Act (POTA), 2002, Terrorist and Disruptive Activities (Prevention) Act, 1985 and Unlawful Activities (Prevention) Act, 1967 as amended in 2008. In 2004, the Central government appointed a five member committee headed by Justice B. P. Jeevan Reddy to review the provisions of act in north eastern states. The committee submitted its report in 2005 which giving following recommendations: (1) AFSPA should be repealed and in place of it appropriate provision should be added to Unlawful Activities (Prevention) Act regarding specifying power of Armed and paramilitary forces. (2) Grievance cell should be set up in every district where the armed forces are deployed.20

The same recommendation to repeal AFSPA was also made by United Nations Committee on theElimination of Racial Discrimination in February 2007.The Indian Military has ignored all these recommendation by saying that this act is necessary to maintainpeace and harmony in such disputed area and overriding the powers mentioned in AFSPA will lead tointernal disputes as well as external disputes. It is being argued by Lt General Arvind Sharma that ifAFSPA is repealed then army will not be able to work in insurgency situations.However this doesn’t mean that government has the right to take away the Fundamental Right of Right tolife of citizen of disputed area in an intentional or unlawful way. It doesn’t mean that state can violate thehuman rights of any individual guaranteed under by the constitution of India. But by introducing AFSPA,the government has violated fundamental rights of the people of eight states. Instead of maintainingpeace in the states this has created conflicts in these states by arbitrary killing, cruelty, inhuman and degraded treatment of the armed forces. I am not in favor of totally repealing this act because that will lead to various problems like increase in the terror and insurgency attacks. If this act is removed, the army will lose its control over the states and because of which infiltration from Pakistan and China will going to rise. So total repealment in not the solutioninstead of that the government may reduce the powers of military men mentioned in this act. Instead ofkilling someone just on the basis of suspicion, they can arrest him and investigate against him. Legalproceeding should be done if a soldier commits any fake encounter. If government is declaring a particulararea as ‘disturbed’ then the courts must have a say on that. A boundary should be made to restrict thesoldiers because complete independence had led to military rule in these states. A boundary that willrefrain the soldiers from committing any crime. 21

marital rape: Cry of the Indian Wivesby Aparajita Karki, [College of Legal Studies, UPES, Dehradun]

In this era of modernisation, India is found to be struggling with end number of cases where a women is subjectto rape by her husband which is termed as Marital Rape, i.e. the rape committed by the person to whom thevictim is married. Section 375 of the Indian Penal Code defines the term 'rape'. This section has been subject torecent amendments, but still after such reform, marital rape continues not to be a crime in India. However itcan be termed as a prosecutable domestic violence under sec 498(A) of the Indian Penal code and can beconsidered under Protection of Women from Domestic Violence. The Hindu Marriage Act, 1955 has beeninterpreted in the manner that a wife is duty-bound to have sex with her husband, and divorces have beengranted to husbands whose wives refuse to have sex on grounds of “mental cruelty”. Hence, as observed noaction can be taken on marital law until further ramifications on the said Act been taken into consideration. TheCriminalisation of theMarital Rape was alsoamong the suggestionso f t h e Ve r m aCommittee, a three-member panelappointed to suggestamendments to India’ssexual assault laws. Thegovernment rejectedthis proposed change,leaving it out of thedraft bill it thenpresented toParliament. Why? Thereason given by one ofthe reports depicted that if marital rape is considered as a crime under the provisions of law then it would becontrary to the beliefs of the whole concept of family harmony. But this simply outrages the rights of the womanwho has been the victim of rape by her own husband which need to be pondered upon by the Legislative byenacting such provisions thereby enabling the victims their right.There have been plethora of cases wherein wives are brutally harassed, one of the cases was filed many yearsafter the marriage, where the victim (Rashmi) believed that frequent vaginal bleeding after intercourse was anormal phenomenon. Married at the age of 17, her husband would assault her six to seven times a day. At theage of 19, when she conceived her first daughter, she was forced to have intercourse till the eighth month of herpregnancy. However, things became worst when barely 15 days after she had a C-section surgery, her husbandassaulted her so badly that it led to the rupture of her stitches. She wanted to raise her voice against herhusband but was mocked by her mother. \"This is normal. Husbands don't rape you. They are allowed todo all that,\" she was told. Today Rashmi is 27 years old with 2 daughters, fighting a case under 23

domestic violence in Delhi’s Saket court. Further, it can be witnessed in this case that even the mother of the victim is not supporting her daughter for her claim. Hence, her husband is not to be blamed alone, it is the elder of the family who is equally responsible for her condition. There are instances where the women were subject to rape as the recent Nirbhaya rape case, wherein the perpetrators though got punished for the heinous crime committed by them. But this raised a very concerning issue as to the women who were raped by their own husband i.e. having intercourse with them forcefully without their consent, what remedies can they avail or whether those victims have any recourse against their own husband in the court of law? The media coverage of the issues of women being raped in the society though attain some sympathy in the public sphere but when Rashmi was raped by her own husband, (the only man who was her support in every situation) where were the exclusive footage of such heinous crime or rather the question to ask at this juncture is whether marital rape is crime in itself? The victim was stopped from raising her voice on the grounds that society doesn't consider it a crime and the woman has to do whatever pleases her husband. and even she herself was aware about the fact that law doesn't provide protection to such acts. Who will give them justice? The court? The government? The law makers of our country, who claim that marital rape is not rape until the girl is 15 years old, expect in cases of legal separation? These questions remained unanswered to the point where the construction of such utopian society takes place where the country stands united against such practices and every women has been provided the right to live their life in the manner they seek and have the liberty to practice such rights even if violated in any court of law. But the main issue for consideration is when would the construction of such utopian society began as to the principles of natural justice interpreted in our Constitution also protects the rights of the female counterpart but denies to accept them. So the need of the hour is to bring such interpretation to the reality of the presently situated society and thereby guaranteeing the rights of those victims and supporting their claims to the level that no person dare to outrage the modesty of a woman for that matter even wife of such person.24

Journal Section Madhav Kumar [Institute of Law, Nirma University] onFOREST RIGHTSACT, 2006: ITSENACTMENT,IMPLEMENTATIONAND DOWNFALL’WITH SPECIALREFERENCE TOTHE NILGIRIS

The  Scheduled  Tribe  and  Other  Traditional  Forest  Dwellers   Hence,  as  can   be  deduced   from  above   the   Forest   Policy  of  (Recognition   of   Forest   Rights)   Act,   2006   (in   short   ‘the   1988,   unlike   the   previous   forest   laws,   recognised   the   rights  Forest  Rights  Act’)  was  enacted    to  recognise,  preserve  and   of  the  tribal  and  rural  people.  Later  in  the  year  1992  the  Rio  vest   certain   rights,   with   respect   to   forests   resources,     in   Conference   on   Sustainable   Development   took   place  Scheduled   Tribes   and   other   traditional   communities   through  which  India  became  a  signatory  to  Agenda  21.  The  dwelling.   The   Act   mainly   focuses   on   communities   and   main   objective   of   the   agenda   formulated   was   to   give  dwellers   that   have   been   prevalent   among   the   forest   areas   priority   to   sustainable   development   and   conservation   of  for  generations.  The  genesis  of  the  Forest  Rights  Act  can  be   the   flora   and   fauna   by   the   member   States.   Pressure   was  accorded   to   certain   factors   in   the   past.   One   such   factor   is   built  on  the  Centre  after  the  conference  to  conserve,  protect  the   evolution   of   the   forest   laws   in   India.   The   pre   colonial   and   preserve   the   forest   covers.   With   such   international  era  showed  no  evidences  of  any  codified  law  with  respect  to   pressure  the  need  to  involve  the  indigenous  dwellers  of  the  forests  in  India.  It  was  only  after  colonisation  by  the  British   forests   in   forest   conservation   was   felt   by   the   Centre.   This  Empire  that  there  was  a  realisation,  of  the  fact,  that  forests   was  soon  followed  by  the  Godavarman  v.  UOI  case    which  are   significant   and   exhaustible   and   there   is   a   need   to   led   to   the   apex   court   passing   numerous   orders   which  preserve/   conserve   it.   This   realisation   came   way   back   unfortunately   resulted   in   constraining   the   rights   of   the  during   the   mid   nineteenth   century   and   led   to   the   tribal  communities.   The  orders  were   interpreted   in   such  a  codification  of   the   first   Indian   Forest  Act   in   the  year   1865.   way   that   the   Ministry   of   Environment   and   Forest   (MoEF)  This   Act   was   passed   by   the   British   legislature   to   bring   started   evicting   the   forest   dwellers   and   this   led   a   great  forests   under   the   control   of   the   State.   An   amendment   of   uproar   among   the   tribal   and   traditional   dwellers.   This  the   Act   in   the   year   1878   also   focussed   on   the   same   motive.   uproar   caused   a   bit   of   concern   to   the   Centre   and   soon,  Soon,  all   policies  and  circulars   passed   by   the   British,  with   discussions   started   being   held   by   the   National   Advisory  respect  to  forests,  were  for  the  State  to  gain  further  control   Council  on  the  topic  of  tribal  rights,  in  the  year  2004.  It  was  of  the  forest  covers.  A  significant  legislation  that  was  passed   then   decided   that   a   drafted   legislation   for   settlement   of  during   the   colonial   period   was   the   Indian   Forest   Act   of   tribal  communities  and   the   traditional   forest  dwellers   had  1927.   If   one   reads   the   Preamble   of   the   1927   Act   it   will   be   to   be   given   a   thought   to.   The   Ministry   of   Tribal   Affairs,  understood   that   it   is   more   or   less   based   on   the   amended   which  was  created  in  1999,  was  given  the  task  to  prepare  the  Act  of   1878   the  only  exception   being   that  subject  of   forest   Bill  of  the  Forest  Rights  Act  and  the  same  was  placed  before  produce   is   also   covered   under   the   Act.   After   independence   the  Parliament  in  2005.the   main   focus   was   diverted   towards   national   interest.   The  succeeding   forest   laws   and   policies,   including   the   Forest   The Impediment inConservation  Act  of  1980,  gave  importance  to  conservation   the Implementation ofof   forests   and   wildlife   and   a   greater   State   control,   they   the Forest Rights Actfurther   provided   for   penal   measures   for   contravention   of  the   codified   provisions.   What   can   be   concluded   by   the  above  is  that  there  was  no  importance  or  recognition  given  to   the   rights   of   the   forest   dwellers.   The   forest   dwelling  scheduled   tribes   and   other   traditional   dwellers   were   left  infuriated   by   their   exclusion   and   hence   this   led   to   the  second  factor.  In   the   year   1988   the   Centre   passed   the   National   Forest  Policy   through   which   a   marked   departure   of   strict  conservation   was   witnessed.   It   was   for   the   first   time   that  the  tribal  needs  were  taken  into  consideration.  Recognition  of   the   tribal   rights   was   brought   forward   and   their  protection  was  also  referred  to.   One  of  the   nine  objectives   given  in  the  policy  reads  as  follows:  26 “Meeting   the   requirements   of   fuel-­‐wood   fodder,   minor  forest  produce  and  small  timber  of  the   rural  and  tribal  populations”  

Over  the  past  five  years  the  Centre  has  faced  several  problems   diversion   of   forest   lands   and   forced   relocation,   and   with  in   implementing   the   Act   in   its   letter   and   spirit.   This   has   respect   awareness   raising,   monitoring   and   grievance  resulted   to   a   number   of   criticisms   regarding   the   efficiency   of   redressal.   It   is   unknown   on   how   far   these   guidelines   have  the   Act   and   numerous   questions   are   being   raised   on   the   been   effective   but   a   status   report   of   2014   prepared   by   the  Centre  with  respect  to  its  approach  towards  tribal  rights.  The   Ministry  of  Tribal  Affairs  on  the  implementation  of  the  Forest  scenario   today   is   that   of   making   the   nation   an   economic   Rights   Act,   2006   shows   that   only   39   per   cent   of   the   claims  superpower   and   this   has   sidelined   the   important   subject   of   from   across   India   have   been   addressed   to.   “As   per   the  sustainable   development.   With   less   priority   given   towards   information  collected  till  31st  December,  2014,  39,59,019  claims  conserving   the   forests   the   recognition   of   rights   of   the   forests   were   filed   out   of   which   only   15,56,676   titles   have   been  dwellers   has   taken   a   major   toll.   “Some   of   the   major   concerns   distributed.”   What   this   statistic   shows   is   that   many   States   are  regarding  implementation  of  the  Forest  Rights  Act  is  related  to   still  lacking  behind  in  implementation.    high   rate   of   rejection   of   claims   ,   little   progress   in   the  recognition   of   community   rights   and   habitat   rights   of   PTGs   ,   The Nilgiri Forest Coverconvening   of   Gram   Sabha   meetings   at   the   Panchayat   level,  insistence   of   particular   form   of   evidence,   claimants   not   being   The   Nilgiris,   a   district   of   Tamil   Nadu,   also   known   as   the  informed   about   rejection   of   claims   and   inadequate   awareness  about   the   provisions   of   the   Act   and   the   Rules,   etc.”   In   a   letter   Queen  of   Hills   has  a   large  cover  of   forest  area  and   is   rich   in  addressed   to   the   Secretaries   of   all   State   Governments   the  Central   Government   pointed   out   that   in   many   areas,   the   biodiversity.   The   Nilgiri   Biosphere   Reserve   is   the   only  tribal   communities   and   dwellers   of   the   forests   are   facing  harassment   and   threats   of   eviction   from   forest   lands   and   International   Biosphere   Reserve   and   has   been   declared   to   be  being   forced   to   be   relocated   and   displaced   from   the   areas  proposed  for  development  projects  without  settlement  of  the   a  World   Heritage   Site   by  the   UNESCO   in   2012.  There  are  six  rights  of  the  dwellers  or  complying  with  the  provisions  of  the  Forest   Rights   Act,   2006.   Many   claims   are   being   rejected   by   major   primitive   tribes   that   are   prevalent   in   the   District,  officials  in  some  States  as  they  are  insisting  of  evidences  such  as   satellite   images   for   consideration   of   a   claim   instead   of   namely,  the  Todas,  the  Kotas,  the  Kurumbas,  the  Paniyas,  the  using   it   as   a   supplement   to   the   evidences   that   have   been  submitted   by   the   dwellers   for   their   claims.   Other   concerns   Mullukurumbas   and   the   Kattunaikans.   Out   of   these   six   the  include   the   non   awareness   about   the   provisions   of   the   Forest  Rights  Act,  particularly  the  provisions  that  relate  to  the  filing   Todas  have  attracted  the  most  attention  than  any  other  tribe.  of   petitions   by   the   persons   aggrieved   by   the   decisions   of   the  officials  prescribed  under  the  Act  and  the  inadequate  training   The  tribes  of  the  Nilgiris  have  a  long  history  and  at  once  were  given   to   the   implementing   officials.   In   order   to   address   to  these   concerns   the   Central   Government   in   the   year   2012   the  only  population  that  dwelled  in  the  Queen  of  Hills.  It  was  submitted   a   set   of   guidelines   to   all   States   and   directed   for   a  strict   compliance   of   the   same.   The   guidelines   were   for   the   only  in  the  18th  Century  that  the  existence  of  these  tribes  was  proper   implementation   of   the   Forest   Rights   Act   and   mainly  dealt   with   subjects   relating   to   the   process   of   recognition   of   known   by   the   British   administration.   Their   populous  forest   rights,   minor   forest   produce,   community   rights,  community  forest  resource  rights,  protection  against  eviction,   dwindled  after  the  19th  Century  from  90  per  cent  to  a  mere  20   percent  today.  “When  the  British  first  surveyed  the  population   in   1821,   100%   of   the   inhabitants   were   of   indigenous   tribal   communities,  but  by  1961  adivasi  groups  made  up  only  25%  of   the  population  of  the  Nilgiri  Hills.”  Tribal  rights  in  the  Nilgiris   hold   a   very   significantly   high   importance.   The   above   mentioned   tribes   survive   with   forest   resources   and   a   significant   population   of   the   tribes   still   dwell   in   the   forests.   After   the   Godaverman   Case,   which   came   into   the   limelight   by   dealing   with   the   biodiversity   of   the   Nilgiris  itself,  a  significant  number  of  tribal 27

people   dwelling   in   the   forests   were   evicted   by   the   forest   officials.   This   led   to   disturbing   times   for   the   tribal   people.   The   Forest  Rights  Act  did  bring  some  promise  in  the  beginning  but  after  nearly  two  years  the  Act  came  into  force,  implementation  became  a  problem.  On  21st  February,  2008,  the  Madras  High  court  issued  a  stay  order  against  the  issuing  of  pattas  or  felling  of  trees  which  was  not  in  compliance  to  Section  3  (2)  of  the  Forest  Rights  Act  across  the  State  of  Tamil  Nadu.  An  application  for  vacation  of  this  particular  order  was   forwarded   by  a   tribal  organization  after  which   the   High   Court  clarified   that   title   for  any  rights  should   be  granted  only  after  obtaining  orders  of  the  Court.  This  clarification  given  by  the  Court  has  provided  a  setback  for  entitlement  of  rights  for  the  tribal  communities.  For  every  title  distribution  an  order  from  the  High  Court  is  required  and  this  has  delayed  the  distribution  of   numerous  titles  of  right.  The   2014   Status  report  on   implementation  of  the  Act  shows  that  a  total  of   21,781  title  claims  were  made  out  of  which  3,723  are  ready  to  be  distributed  but  haven’t  yet  been  distributed  due  to  the  restrictive  order  of  the  High  court.    On  a  visit  made  to  the  District  Forest  Office  of  the  Nilgiris,  to  find  out  whether  implementation  of  the  Forest  Rights  Act  was  on  the  right  track  the  officer  had  only  one  thing  to  say  “the  Act  is  still  young  and  it  will  take  time  for  it  to  mature”.  The  Officer  also  showed  concern  on  the  Order  passed  by  the  High  Court  as  well.  The  tribes  of  the  Nilgiris  have  now  been  circumspect  of  how  the  Act  will  help  them  entitle  their  rights  over  the  forest  resources.   The  Threat  to  the  Forest  Rights  Act,  2006:  There  is  a  threat  looming  by  the  Centre  over  the  existence  of  the  Forest  Rights  Act  in  the  near  future.  There  have  been  various   talks  about  the  Act  being  diluted  by  the  Government  on  the  pretext  of  it  being  a  ‘bad  law’.  A  very  recent  example  of  this  28 approach  by  the  Government  was  seen  in  Maharashtra.  The  Tribal  Affairs  Minister  was  asked  by  the  Government  to   withdraw  his  objections  to  Maharashtra’s  Village  Forest  Rules  that  allow  forest  department  to  take  control  over

 the  forests  which  is  in  contravention  to  the  Forest  Rights  Act.   that   the   FRA   is   on   the   top   of   the   list   of   the   laws   and   scheme  “In   March,   last   year   the   Maharashtra   Village   Forest   Rules   that  are  considered  to  be  hindering  the  “development  agenda”  were   issued   by   the   forest  department  of   Maharashtra  which   of  the  NDA  government”.    The  job  for  undermining  the  Forest  sought   to   make   communities   declare   forests   under   their   Rights  Act  was  made  difficult  for  the  UPA  Government  due  to  jurisdictions   as   “village   forests”,   which   would   then   be   the   Supreme   Court’s   decision   in   the   Vedanta   Case   where   the  managed   by   communities   in   collaboration   with   the   forest   rights  of  the  tribe  of  Niyamgiris  were  given  more  importance  department.   The   management   committees   formed   to   look   than   the   mining   project   of   Vedanta.   The   latest   development  after   such   forests   would   have   a   forest   officer   as   the   secretary   is   that   the   Modi   led   government   has   moved   to   the   option   of  and   the   overall   authority   to   take   decisions   on   the   making  the  States  decide  the  fate  of  the  Forest  Rights  Act  and  management   of   such   forests   would   lie   with   the   forest   with   most   States   under   BJP  control   the   Act  seems   to   have  a  department”.   This   is   in   violation   of   the   community   rights   bleak  chance  to  be  favoured.    In  October  last  year  Ministry  of  provisions   mentioned   under   the   Forest   Rights   Act.   This   Environment  and  Forest  issued  a  circular  stating  that  the  Act  provision   gives   absolute   authority   to   the   gram   sabha   over   will   be  applicable  only   in  those  forests  which  are   more  than  forests  under  the  community’s  jurisdiction.  This  approach  by   75  years  old.  The  circular  also  states  that  development  works  the   ministry   does   lead   to   concerns   about   the   future   of   the   in   forests,   which   are   less   than   75   years   old   and   with   no  Forest   Rights   Act.   Forest  Rights   activists   basically   recorded  population,  will  not  require  the  consent  of  the  gram  believe   that   the   present  gove r n m e n t   i s   t r y i n g   to   sabha  as  given  under  the  Act.  This  particular  circular   issued  impede  the  implementation  of  the   Act.   There   have   been   by  the  MoEF  had  resulted  in  a  small  tussle  between  the  Tribal  various  talks  about  bringing  in  an   ordinance   to   subvert   the   Affairs   Ministry   and   the   MoEF,   but   irrespective   of   that   the  Forest   Rights   Act   just   like   the  Land   Ordinance   that   was   BJP   led   government   hopes   to   do   away   with   the   Act   to   place  promulgated   in   2014   which  subverted   some   of   the   salient   development  on  a  fast  track.              f e a t u r e s   o f   t h e   L a n d  Acquisition  Act  of  2013.         Various  forest  rights  activists  are  claiming  that  the  The   talks   about   doing   away  with   the   Forest   Rights   Act   claims  for  Forest  Rights  Act  holding  up 29came   into   the   picture   in   the  year   2012   by   the   Manmohan  Singh   led   government.   The   government   ever   since   then   has  tried   to   do   away   with   the   provision   which   requires   it   to   take  the  consent  of  the  Gram  Sabha  to  have  a  stake  on  the  forests  and   its   produce,  over   the   tribal  communities.   The   provision  was   and   is   still   considered   a   hindrance   to   the   various  development   projects   to   be   initiated   by   the   Government.  Today,   the   Act   itself   is   considered   to   be   a   hindrance   for   the  Government.   “Highly   placed   sources   in   the   government   say  

development  are   just   bogus.   During  a   National   Convention  on   Community   Forest   Rights   held   in   Delhi  on   December   16th   2014   various  forest  dwelling  communities  strongly  claimed  that  the  Forest  Rights  Act  was  passed  by  the  Legislature  for  the  recognition   of  rights  of  the  tribals  and  the  forest  dwellers.  It  was  their  argument  that  first  the  rights  have  to  be  recognized  and  then  a  process   be  worked  out  by  industries,  using  forest  land  for  non-­‐forest  purposes,  with  the  communities  to  hand  over  the  forest  land  after   compensating   the   holders  of   the   right  and  obtaining   their  consent.   This  argument  was   raised  as   there  was  and   there   is   still  a   concern  that  the  tribal  communities  will  face  the  same  ‘historical  injustice’  it  had  faced  before  the  Act  came  into  force.       Importance  of  the  Forest  Rights  Act:   The  Forest  Rights  Act  was  legislated  to  curb  the  ‘historical  injustice’  of  the  tribal  communities  and  the  traditional  forest  dwellers.   The  ‘historical  injustice’  refers  to  the  non  recognition  of  forest  rights  of  the  tribal  communities  and  other  traditional  dwellers  in   the   forests   for   a   very   long   time.   As   has   been   mentioned   earlier   in   this   article   the   legislations,   policies   and   judgments   of   the   Supreme  Court  did  not  make  substantial  reference  to  forest  rights  of  the  tribal  communities.  The  coming  of  the  Forest  Rights  Act   showed  some  hope  and  promise  but  later  could  not  meet  up  to  the  expectations.  But  this  is  not  because  the  Act  is  weak  or  bad   but   this   was   and   is   mainly   because   there   was   only   a   lukewarm   effort   on   the   part   of   the   Government   to   implement   the   Act.   The   tribal  communities  and  the  traditional  dwellers  have  been  prevalent  in  India  for  a  very  long  time,  some  even  for  many  centuries.   It   is   very   important   that   their   rights   are   recognised   as   they   are   a   source   of   rich   culture   in   our   country   and   such   culture   has   to   b   preserved.  The  Act  tries  to  preserve  the  culture  and  if  at  all  it  is  done  away  with  then  a  nation  which  is  known  for  its  rich  diversity   and  culture  will  struggle  to  keep  up  with  that  status.  30

Moreover,  the  Act  is  important  for  the  conservation  of  forest  resources.  The  Act  does  focus  on  conservation  and  gives  impetus  to  the   tribal   communities   to   play   a   role   in   conservation   of   forest   resources   by   utilizing   some   of   their   traditional   techniques.   Forest  conservation   is   important   for   reaching   the   goal   of   sustainable   development.   India   has   been   aiming   towards   sustainable  development   from   1972   onwards   after   the   Stockholm   Conference   that   took   place   in   the   same   year.   It   is   the   objective   of   every  nation   to   give   importance   to   sustainable   development   and   the   issue   has   been   raised   in   various   held   conventions.   India   has  international  pressure  towards  conservation  of  natural  resources,  forest  being  one  of  the  most  important  out  of  them.  India  is  also  a   signatory   to   Agenda   21   which   was   formulated   in   the   Rio   Conference   held   in   the   year   1992.   The   Agenda   deals   with   sustainable  development   through   natural   resource   conservation.   The   Agenda   also   includes   forest   as   a   resource.   The   objective   of   sustainable  development   was   kept   in   mind   while   drafting   the   Forest   Rights   Act,   dilution   of   the   same   would   mean   an   obstruction   in   the  achievement  of  the  objective.  In  all  these  aspects  the  Forest  Rights  Act  does  play  a  very  important  role.  The  reason  given  that  the  Act   is  a   bad   law   because   it  causes  an  obstruction  to  development  seems  to   be  a  weak  one.   Development  should   be  sustainable  development  which  means  that  development  of  a  nation  should  not  be  at  the  cost  of  its  environment.  The  forest  rights  provided  to  the  tribal  communities  are  equivalent  to  their  right  to  livelihood  and  as  all  of  us  know  the  right  to  livelihood  is  a  fundamental  right  as  per  Article  21  of  the  Constitution     31

Conclusion It took a long time for the Government to recognize the forest rights of the tribal communities and traditional dwellers through the Forest Rights Act but again that recognition is seemed to have been fading away. It has just been 9 years since the Act has come into force and as rightly pointed out by the District Forest Officer of the Nilgiris the Act is still young. Implementation of the Act has certainly not been up to the mark but that does not mean the Act is a ‘bad law’. The government instead of trying to impede the implementation of the Act must try and work a way to give the Act a stronger position. The unpleasant history again seems to be repeating for the tribal communities and traditional dwellers in the forests. Their voices are again being unheard. Development and growth has consumed the government and is leading them to take irrational decisions. Subversion of the Act will only lead to consequences that are unasked for. A good government is which recognizes the right of every individual and then move towards development and growth. Sustainable development should be the buzzword today and the government should work towards achieving that by recognising the rights of the traditional forest dwellers.32

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