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Home Explore Libertatem Magazine - Issue 1 [Feb 2015]

Libertatem Magazine - Issue 1 [Feb 2015]

Published by Libertatem Magazine, 2016-11-28 00:52:14

Description: Libertatem Group is proud to release its 1st Edition of the flagship Libertatem Magazine. The current issue covers articles ranging from Obama's visit to Status of Women and many more.

Keywords: Commercial borrowings,medical negligence,GST,Juvenile,Children,Competition Law,Religious Conversions,Uber Rape Case,Status of women


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February 15, 2015 THE LAW BRIGADE GROUP IN ASSOCIATION WITH DEADLYLAW PRESENTS ISSUE 1 LIBERTATEM A FORUM TO PORTRAY ALL YOUR LEGAL THOUGHTS Analyzing The Uber Rape Case Reducing The Age of Juvenility Status on Forced Conversions Judicial Proceedings Are the favouring celebrities? Parley with the Pirates : Swarnabh Dutta Obama’s Sojourn Symbolism or Substance



MESSAGE FROM THE FOUNDERS A WARM WELCOME TO OUR READERS, AUTHORS AND REVIEWERSLet us first of all take this opportunity to wish Rahul Ranjan & Ankita Ranawatall our readers a very happy, peaceful and Foundersprosperous 2015. The Law Brigade GroupOn behalf of the entire team, please let us start byconveying our sincere gratitude to all of our manyauthors and reviewers who have submittedpapers and/or provided valuable service as areviewer for The Libertatem Magazine. Oureditorial board and the many ad hoc reviewershave spent countless hours reviewingmanuscripts for the Magazine over the past fewdays, and we continue to excel as a direct resultof your efforts. We will try to be brief, but this isa particularly exciting time.This is the first issue of the Libertatem Magazine.A total of 17 articles are published and wesincerely hope that each one of these providedsome significant stimulation to a reasonablesegment of our community of readers.We would like to express our considerableappreciation to all authors of the articles in thisissue of The Libertatem Magazine. It is theirgenerous contributions of time and effort thatmade this issue possible. At the same time wewould like to encourage all our readers toconsider sharing their special insights with TheLaw Brigade Community by submitting anarticle. An overview of desired content andorientation can be found in the Submit Articlelink on the home page of The LibertatemMagazine.

IN THIS ISSUEGUEST ARTICLE Obama’s Sojourn: Symbolism or SubstanceINTERVIEW Parley with the Pirates: Swarnabh DuttaARTICLES De-criminalizing the Attempt to Suicide Contents External Commercial Borrowings CS COVER STORY OBAMA’S SOJOURN: The Return of e-rickshaws SYMBOLISM OR SUBSTANCE Status of Women in the Authored by Manish Kumar from Modern Era Erricson India, Bangalore Trademarks 01 DE-CRIMINALISING THE ATTEMPT TO SUICIDE GST: A Step towards Tax Reforms in India Authored by Aashna Jain from National Law University, Jodhpur Wars on Children Medical Negligence Sentencing Disparities Death Sentences Judicial proceedings & Celebrities Uber Taxi Rape Case Age of Juvenility Religious Conversions IPR & The Competition Law(C) All Rights Reserved by The Law Brigade Group 02 EXTERNAL COMMERCIAL BORROWING: AN ANALYSIS Authored by Akshay Goel from Hidayatullah National Law University, Raipur

03 WARS ON CHILDREN 10 AGE OF JUVENILITY: NEED OF REDUCTION Authored by Nada Faruqi & FROM 18 TO 16 Hisham Siddiqui from Aligarh Muslim University, Aligarh Authored by Shristi Kumari from National University of Study and Research in Law, Ranchi04 PARLEY WITH THE PIRATES: 11 SENTENCING DISPARITY SWARNABH DUTTA IN INDIA: NEED FOR COMPREHENSIVE RSD Officer, UNHCR SENTENCING GUIDELINES Authored by Adv. Pallab Das from Odisha High Court & Paras Padhi from KIIT Law School, Bhubaneshwar05 RETURN OF E-RICKSHAWS 12 COMMUTATION OF ON ROAD AFTER DEATH SENTENCES: A COMPROMISING ON SAFETY CRITICAL ANALYSIS Authored by Amrita Jha from Ram Authored by Prachi Kumari from Manohar Lohiya National Law University, Faculty of Law, Banaras Hindu Lucknow University, Varanasi06 STATUS OF WOMEN IN 13 ARE JUDICIAL MODERN ERA - RAPES AND PROCEEDINGS IN ACID ATTACKS INDIA MORE BIASED TOWARDS Authored by Aparajita Karki CELEBRITIES? from College of Legal Studies, University of Petroleum & Energy Authored by Rachana K from Studies, Dehradun Symbiosis Law School, Pune07 MEDICAL NEGLIGENCE 14 THE MISOGYNE OF08 WITH REFERENCE TO 15 INDIA - A LOOK AT THE09 ANURADHA SAHA'S RECENT UBER RAPE WRONGFUL DEATH CASE CASE Authored by Neelanjana Paul Authored by Saakshi Sharma from KLE Society’s Law College, from Symbiosis Law School, Pune Bangalore THE LAW ON TRADEMARKS AND IT’S RELIGIOUS REMEDIES CONVERSIONS Authored by Devita Shah from Authored by Shubhi Sharma KLE Society’s Law College, from Rajiv Gandhi National Bangalore University of Law, Punjab. GST: STEP TOWARDS 16 CONFLICT OF IPR IN TAX REFORM IN INDIA COMPETITION LAW Authored by Kartikey Kesarwani Authored by Trishla Sanyal from from College of Legal Studies, AKK New Law Academy, Pune University of Petroleum & Energy University, Pune Studies, Dehradun

COVER STORYObama’s Sojourn Symbolism or Substance By Manish Kumar [ Erricson India, Bangalore]The media space has been abuzz with speculations and group on Intellectual Property, no headways seems to haveexpectations regarding the upcoming visit of the US President been made yet. The strong lobbying by the US pharmaMr. Barack Obama. High hopes are riding on the new found companies has constantly been goading New Delhi to amendbonhomie of the the pluralistic democracies. But the build up its IP laws. The US Trad Representative's Annual Special 301of such high hopes often overshadows the pragmatic views on Report continues to keep India on “ priority watch list” forinternational diplomacy. Our relations with the US goes back its lax IPR laws. India wants to resolve these differences overto 1949 when Mr. Nehru made a visit to the US, which was IPR through bilateral talks rather than being subjected to anyfollowed by the high-profile visit of the US President unilateral action. The US has also expressed in no unclearEisenhower in 1959. But both these visits failed to yield any terms its unequivocal opposition to India on exclusion of IPRlandmark results. The Cold War ensured the Pakistan would and taxation from the ambit of India-US BIT.continue to get the US assistance and funds in spite of ourvehement opposition. In the wake of climate change agreement between the US and China, the US expects India to take affirmative actions onTaking a closer look at the prevailing ground realities, one climate change. This in spite of the fact the recently concludedshould view the summit with cautious optimism with get COP 20 at Lima had only asked government all over toover ambitious for results. Both the countries wish to engage present their Intended Nationally Determinedthemselves on the issues related to bilateral trade, climate Contributions(INDC) in Paris this year. The Lima accord tochange, defence and civil nuclear sector. But the road ahead is which India is a signatory had not asked for any details ofnot smooth. There are numerous stumbling blocks which how it plans to cut emissions. New Delhi has thereby rightlymight preclude any significant outcome, if not outrightly maintained its commitment to rights of poor countries andstymie the summit itself. TRIPS, BIT and civil liability for also the longstanding principle of common but differentiatedNuclear Damage Bill are such issues which would require responsibilities. India seeks more and funds and technologicalstrong deliberations. assistance form the developed nations for mitigation of climate change.The Civil Liability for Nuclear Damage Bill remains the coreissue of discussion. The US companies( which aim for a large The contentious issues not withstanding, India remains a keypie in nuclear energy sector) are wary of the clause in the ally in Obama's Asia Pivot. A sustained and healthy relationBill ,which makes the supplier directly liable for any nuclear between the two nations are not only symbiotic but alsomishap. The clause 46 of the Act relates to open-ended critical to peace and stability in the strife stricken West andliability which puts unlimited liability on the supplier for Central Asia. Both the nations need to create long termany nuclear mishap. The US has been pushing for cooperative strategies that accommodates each other'simplementation of 123 Agreement which has been under interests. A synchronized policy on Asia is the way forward.freeze owing to the aforesaid Bill. It is still to be seen whether US needs to build confidence by assuaging India's concernsthe issue will be resolved through the mechanism of insurance on Afghanistan and Pakistan. The geopolitical, geoeconomicconsortium and realpolitik scenario presents before the two nations, a great opportunity to take the relations to greater heights, thisTRIPS and BIT are the other issues on which the two must not to lost to domestic politics or compulsions.countries are yet to reach a consensus. Even though thedifferences over IPR is being resolved through a working 7

ARTICLESDE-CRIMINALIZING THE ATTEMPT TO SUICIDE - AASHNA JAIN [NATIONAL LAW UNIVERSITY, JODHPUR]“But in the end one needs more courage to live than to kill himself”A person wants to end his/ her life. What stops him? ~ALBERT CAMUSLittle do we realize that everyone should have completecontrol over one-self. This as conceded by the researcher unnatural as such. Death is a natural fact which can inis a heated area of debating where the stand of the no circumstances be avoided and the desire to embrace itSupreme Court of the India is that the right to life does is not illogical or irrational.not essentially include the right to die. There is a verylogical argument that the right to do something includes The Supreme Court overruled the above two decisions inthe right not to do that thing, applies equally well to all the case of Gian Kaur v. State of Punjab. The reasoningthe fundamental rights. Example sake- the right to carry was deplorable because it just said certain overt actson trade, profession and business surely includes the done by the person in furtherance of ending his life is notright to close down one’s business. acceptable and cannot as such be included in the ambit of the right to life and cannot be given anyAlso the Constitutional validity of the section 309 was constitutional protection.challenged in the same case on the basis of article 14 andarticle 21. It was specifically argued that this particular Generally when one does not wish to live a life, whensection violates the equality provision of the one is fed-up of the social pressure, when one isconstitution. An act, which is considered suicide in frustrated with one’s identity and existence, he/ shecertain communities, is considered an act of bravery in should not be forced to live, by the illogical argumentother communities. The people who are punished for that no one has the right to end one’s life because underdoing a certain act in one community are not punished the right to life does not include the right to die and onein the other community and hence this is a gross has to live irrespective of the trauma that he has to faceviolation of the provision of equality. each day by living this meaningless life imposed upon him.Coming on to the provision of right to life enshrined inarticle 21 of the constitution, it as a matter of fact Now coming on to the arena of psychological andincludes the right to live a life of dignity and a mere sociological aspects of this phenomenon called suicide.animal existence is not a life which one should be forced Lesser degrees of mental disorder are present in thoseto live under the garb of right to life. A Division Bench of who attempt suicide, but it is quite clear from itsthe Supreme Court in P. Rathinam v. Union of India held prevalence in those who engage in suicidal behavior thatthat the right to live of which Article 21 speaks of can be there is a \"window of opportunity\" for preventingsaid to bring in its trail the right not to live a forced life, suicide.and therefore, section 309 violates Article 21. Instead of condemning the person and rebuking him forAlso the argument that the there is nothing natural in trying to commit suicide, we should counsel him andthe right to die which is why no one is allowed to die an treat him as a patient. He should be questioned asunnatural death using the modes of strangulation, politely as possible about the reasons or the triggers. Hetaking pills, etc. The logic of natural and unnatural is should be given space and a proper psychologicalself-destructing because irrespective of the fact that the intervention. His state of mind should be the subjectmodes of death are unnatural but the desire to die is not matter of study and debate and the personal and social reasons that he ascribes to his taking on to something as extreme as suicide.

After examining the personal reasons, one has to The argument given by the bodies such as WHO and theeventually scrutinize the social reasons. As Emile IASP is that because of fear of getting imprisonmentDurkheim puts it, “Suicide is a Social Fact”. He says and other social stigmas attached to this social fact,that suicide more than being a personal thing is the people who have suicidal tendencies do nottriggered by the social events. The research says that approach any of these organizations for any help. Alsoexcess amount of social equilibrium leads to two most of the cases of failed suicide result in theextremes of suicide or murder. Emile Durkheim’s argument of accidental and wrong medication and it isthreefold classification of suicides made on the basis of then when these people need an advanced level of moralthe disturbance in the relationship between society and support, counseling and other help, they do not comethe individual: (i) Egoistic suicide which results when out in front of the world with their problem so get anyabnormal individualism weakens society’s control over help because of being penalised.him; the individual in such cases lacks concern for thecommunity with which he is inadequately involved; (ii) The only two arguments against the idea of de-Altruistic suicide which is due to an excessive sense of criminalization of attempt to suicide are that thereduty to community; and (iii) Anomic suicide which is will be an increase in the no. of suicides and thatdue to society’s failure to control and regulate the removing this provision will make other provisionsbehavior of individuals. void.These days religious scriptures are coming back into There are no indications whatsoever that there was anmotion when such topics as suicide are taken into increase in suicides following decriminalisation, and inaccount. Generally the religions such as Hinduism, many instances it is thought that suicide decreasedIslam and Christianity do not allow suicide. The only since more suicidal individuals received the help theyargument is that since that supreme entity is the one need. Countries such as Singapore, which still imprisonwho gave us life has the full and only right to take it some suicide attempters, do not appear to have anyback from us. benefits from those practices. For example, in Singapore suicide rates have been increasing in recent yearsFor the sake of brevity I would just discuss two despite there having suicide as a punishable offence.religions, which have seemingly opposite views on theissue in question. Hinduism on one hand seriously The second of the two arguments is baseless becausecondemns suicide. It says that it brings social stigma the very argument is that everyone has autonomy overonto the family of the person who committed suicide. one’s body and not anyone else’s body. Therefore, ifAlso suicide is allowed if it is done by self-immolation, someone incites the other to commit suicide or juststarving or by entering the caves and suffocate yourself leads someone into committing suicide is not coveredto death. This approach as seen in the scriptures is very under the ambit of right over one’s body. It is just likedamaging to the argument of sanctity of life. On the the state should not be allowed to interfere with theother hand Buddhism says that life is precious but if natural rights of a person, no other citizen should beyou are in pain and suffering and you can’t continue allowed to do so.with it, then there is no harm in ending it and does notcondemn it unlike other religions. But these instances Hence, the author would like to conclude by sayingshould be in the rarest of the rare circumstances when it that this inhuman provision of penalising the attemptleads to non-attachment. to suicide is repealed and now we are at par with other countries such as the UK, etc. This gives an indicationHence religion as an institution does not take a definite that the government of India recognises Human Rightsstand on the issue of suicide. They do not completely go and instead of believing in the theory of deterrence withagainst it but do not side it also. The religions have a fear, it believes in the concept of discouragement withconfused outlook. Suicide if seen from the point of view moral support.of the religion is very society centric where peopledecide that this act of self-killing is acceptable and theother one is rebuked without realising the fact thatthey are focusing on the ideology developed by thesociety and completely ignoring what is the actualproblem with the person.The International Association for Suicide Prevention(hereinafter referred as IASP) has also expressed theview that attempted suicide should be decriminalizedand that suicidal individuals need to be helped andimprisonment only makes their problems worse.

EXTERNAL COMMERCIALBORROWINGS: AN ANALYSIS~ AKSHAY GOEL [HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR]External Commercial Borrowings (ECB) is a 2. The funds availed in the form of ECBs are highlypermitted source of finance for Indian Corporates for under the control of the government and the RBI.expansion of existing capacity as well as fresh This leads to limit in the use of the same. E.g.: ininvestments for the same. They have been defined by most cases, this money is not allowed to be usedthe Reserve bank of India as commercial loans for general corporate purposes or workingavailed from non-resident lenders with a minimum capital.average maturity of three years. The phrase“commercial loans” in this definition includes bank ROUTESloans, buyer’s credit, supplier’s credit, scrutinisedinstruments like floating rate notes and fixed rate ECB can be accessed through two routes in India,bonds, credit from official export agencies and based on the requirement of Government approvalcommercial borrowings for private sector window of for the same:multilateral financial institutions. 1. Automatic Route: under this route, the corporatesBasically, ECB includes any funding other than do not need a government or RBI approval forequity or any kind of direct capital. Such direct accessing ECB from external falls under FDI (Foreign Direct Investments). 2. Approval Route: under this route, the corporatesECB in India is governed by Foreign Exchange do require a government approval for accessingManagement Act along with the Foreign Exchange ECB.Management (Borrowing and Lending of ForeignExchange) Regulations. AUTOMATIC ROUTE: NEED Features:1. ECB allows companies access to funds in foreign 1. Access of funds under automatic route doesn’t currencies which may not be that easy to avail require a government of India or Reserve Bank of from the domestic market. India approval.2. It allows an access to a diversified investor’s 2. Corporates including hotel, hospital, software base to the companies. This could also help the sectors (registered under the Companies Act 1956) companies access funds on a cheaper rate from and Infrastructure Finance Companies are external sources. eligible to raise ECB. Units in SEZs are allowed to raise ECB for their captive requirements.3. The availability of funds in the international NGOs engaged in micro finance activities are market is larger as compared to the domestic eligible to avail of ECB (subject to certain market. Hence, ECB helps companies to fulfil conditions). comparatively larger requirements. 3. Specific organisations who are not allowed to4. Foreign investors provide a larger flexibility to raise ECB through this route include financial the companies in terms of providing security for intermediaries such as banks, FIs, HFCs, and the ECBs. NBFCs as well as trusts and non-profit making organisations. DEMERITS 4. ECB can be raised by borrowers from1. Since ECB involves exchange of money in foreign internationally recognized sources such as: currency, the companies have to deal with the expenditure of hedging their foreign exchange (i) international banks, exposure. (ii) international capital markets,

(iii) Multilateral financial institutions 6. Special Purpose Vehicles (SPV) or any other entity notified by the RBI, set up to finance (iv) Export Credit Agencies, infrastructure companies / projects exclusively. (v) Suppliers of Equipment, 7. Financially solvent Multi-State Co-operative Societies engaged in manufacturing. (vi) Foreign Collaborators and 8. SEZ developers for providing infrastructure (vii) Foreign Equity Holders (other than facilities within SEZ. erstwhile Overseas Corporate Bodies). 9. Eligible Corporate under automatic route otherRestrictions: than in the services sector viz. hotels, hospitals and software sector can avail of ECB beyond1. Utilization for on-lending or investment in USD 750 million per financial year. capital market or acquiring a company (or a part thereof) in India by a corporate, investment in 10. Corporate in the service sector for availing ECB real estate sector, for working capital and beyond USD 200 Mn. per financial year. repayment of existing Rupee loans. 11. Cases falling outside the purview of the2. Issuance of guarantee, standby letter of credit, automatic route limits and maturity indicated, letter of undertaking or letter of comfort by etc. banks, FIs and NBFCs from India relating to ECB. Restrictions:3. The borrower has the option to offer security Most of the restrictions for accessing funds through against the ECB. Creation of charge over this route are the same as those of the Automatic immoveable assets and financial securities, such Route. Some of these have undergone certain as shares, in favour of the overseas lender is changes, especially those related to this route, since subject to FEMA regulations and ECB guidelines. the new RBI guidelines came into effect in 2013. The same has been discussed in the next section. APPROVAL ROUTE CHANGESFeatures: As it can be observed from the above details, theProposals falling under the category include:- Indian companies are under heavy restrictions when borrowing funds from foreign lenders. Though, in the1. On lending by the EXIM Bank for specific new circular issued by the Reserve Bank of India in purposes (case to case basis). 2013 some of the restrictions have been relaxed. Some of them are analysed in this section:2. Banks and financial institutions which had participated in the textile or steel sector 1. End use of ECB: previously, ECB could only be restructuring package as approved by the availed in for financial investments. But as per the Government. new RBI circular, this restriction has been drastically relaxed.3. ECB with minimum average maturity of 5 years by NBFC to finance import of infrastructure The permissible use of ECB now also includes using equipment for leasing to infrastructure projects. it for “general corporate purposes”.4. Infrastructure Finance Companies (IFCs) i.e. The new RBI guidelines allow the use of such ECB NBFCs, categorized as IFCs, by RBI (beyond 50% towards repayment of buyer’s debt, supplier’s debt of their owned funds) for on-lending to the and 25% of ECB to be utilized towards repayment of infrastructure sector as defined under the ECB existing rupee debt, only if ECB is accessed through policy and subject to compliance of certain the approval route. stipulations. This, still, is subject to certain restrictions as levied5. Foreign Currency Convertible Bonds (FCCBs) by by the RBI: Housing Finance Companies.

a. Eligible borrowers can avail ECB under c. Re-schedulement is only allowed before approval route from their direct foreign the maturity of the ECB. equity holder company only with a minimum average maturity of 7 years for d. Every procedure followed should be in general corporate purposes (which includes accordance with the RBI guidelines and working capital). procedures prescribed for the same. b. The lender should be holding a minimum CONCLUSION paid up capital of 25%. The objective of such regulations and control over c. The repayment of such loan would only the ECBs is on one hand to provide flexibility to the commence after the completion of 7 years. Indian Companies with respect to the borrowings No prepayment is allowed. from external market and on the other hand, to maintain a prudent limit on such borrowings. This d. The use of such loan should not violate is necessary to avoid an unnecessarily huge any guidelines issued by the RBI restricting financial base to the companies which may lead to the use of ECB by the companies. them taking uncalculated risks.2. Refinancing: the new RBI guidelines have also ECB has proved to be a very effective mechanism foreased the norms of refinancing by allowing banks to the companies to raise funds for themselves but inapprove even those ECBs where the average the present market conditions where the value ofmaturity period of the same is more than the rupee is constantly deteriorating, raising ECB is notresidual maturity of existing loans. only risky but has also proved to be difficult for the companies. This seems to be the main reason for theThis is subject to the following restrictions: new relaxed guidelines by the Reserve Bank of India for access to ECBs. But the Indian corporates need a. Both the existing and fresh ECB should be to maintain a balance between the funds raised from in compliance with the RBI guidelines. external markets and those from the domestic market in order to tackle with the problems faced by b. All-in-cost of existing ECB should be the global financial markets due to the recent offset more than the all-in-cost of the new ECB. of a financial turmoil in the market in recent years. c. Consent of the existing lender should be available for the approval for fresh ECB. d. Such refinancing should only be undertaken before the maturity of the existing ECB.The RBI has further prescribed certain conditionsthat need to be satisfied in order to get approval ofchanges/ modification of drawndown/repaymentschedule of ECB already availed by the AuthorisedDealer Bank. These are applicable to bothautomatic and approval routes. a. After the re-schedulement, the all-in-cost and average maturity period should be in compliance with the applicable guidelines. There should not be an increase in the rate of interest or additional costs. b. The said re-schedulement is only allowed once.

WARONCHILDREN~ Nada Ziam Faruqi & Hisham Siddiqui [Aligarh Muslim University, Aligarh]WE REALLY NEED TO SHIFT THE BURDEN OF THIS DEBATE ONTOOURSELVES INSTEAD OF STEALING THE LUSTROUS SMILES.THE SOONERWE TAKE THIS SERIOUSLY,THE BETTER. INTRODUCTION entertain the 'underdressed, poor brat' into its fold. We may conclude: Children and women have always been anIn this era of Unipolarity, with America as the easy target, come what may.Ringmaster, the contemporary geopolitics suffers fromserious anarchy. Although unipolarity is believed to be 'an DENIAL OF HUMANITARIAN ACCESSinterstate system and not an Empire', the present politicalclimate has presented before us, exactly what has been In the situations of war, armed rebellion and insurgency;denied. Amidst warfare, brutality, venality and absolute humanitarian access is immensely required for thelawlessness–those are primarily our concerns, anyway– civilians who are affected mentally as well as physically.we have made our children suffer a lot, displaying nothing According to the information on the website of Unitedbut sheer savagery. In the name of 'War on Terror', in the Nations Office of the Special Representative of thename of 'installing democracies', in the name of Secretary General for Children and Armed Conflict titled,establishing ethnic identities, in the course of 'want of 'Denial of Humanitarian Access'– \"Denial ofFreedom', or in the course of protecting the homeland– humanitarian access entails blocking the free passage orchildhood is largely being stolen from the World. We see timely delivery of humanitarian assistance to persons inthe military use of Children at an uncanny pace. “Military need as well as the deliberate attacks againstuse of children takes three distinct forms: children can take humanitarian workers.\" It is also estimated by the samedirect part in hostilities (child soldiers), or they can be source that in today’s conflicts around the globe, 80used in support roles such as porters, spies, messengers, millions of children are denied humanitarian assistance.lookouts; or they can be used for political advantage either Access can be denied or hampered by parties to conflict foras human shields or in propaganda.” security or political reasons. In many parts of the world, humanitarian assistance is sometimes interrupted becauseApart from that, even children dying out of starvation in of ongoing fighting.Sub-Saharan Africa and in the North-Eastern Indianstates, children dying out of diseases due to poor medical ISRAEL-PALESTINE CONFLICT AND THE CHILDfacilities, child trafficking, Child Sexual Abuse, children RIGHTS' VIOLATIONSbeing beaten and harassed in schools, bullying– these areall darker or lighter shades of what we intend to The Report of the Secretary-General to the Securityencapsulate within the meaning of 'Wars on Children.' Council issued on 15 May, 2014 presents the followingYoung boys pelting stones on Army tanks in Kashmir echo information:-a message that something is really, really fractured in theedifice of our Democracy. Throwing out of a street kid by \"Palestinian and Israeli children continued to be affectedMcDonald's in Pune, because he was trying to buy Fanta by the prevailing situation of military occupation, conflictFloat slyly passed on a message that Capitalism won't and closure. Eight Palestinian children (six boys and two girls) were killed and 1,265 were injured in the occupied

Palestinian territories in 2013. In the West Bank, an by the Tehreek-e-Taliban aged between 8 and 18 years wasupsurge was observed in the number of Palestinian atrocious in the strictest sense of the word. One took sochildren killed and injured by Israeli security forces long to believe that this actually happened. Though we'veduring clashes and as a result of violence by Israeli seen children die ruthlessly, in a climate awash withsettlers. Eight Israeli children were injured in the West frenzy but those under the pretext of war or armed conflictBank in incidents related to the presence of Israeli but this was so sudden; so out of the blue.settlements, while no Israeli children were killed in 2013.In the West Bank, four Palestinian boys were killed by The United Nations Children's Fund calls 2014 alive ammunition, including three during incursions by devastating year for children, reporting that as many asIsraeli security forces into the Al Jalazun, Jenin and Ayda 15 million young people are caught in conflicts in therefugee camps. Incursions into camps have increased by 60 Central African Republic, Iraq, South Sudan, theper cent compared with 2012. For example, on 7 December Palestinian territories, Syria and Ukraine. Among the2013, a 14-year-old Palestinian boy was shot and killed grim statistics in a newly released UNICEF report: Thereby the Israel Defense Forces near Al Jalazun, allegedly are more than 1.7 million child refugees from the conflictwhile throwing stones at the soldiers. The Israeli in Syria, and 105 children have been killed in the moreauthorities under the Military Advocate General opened than 35 attacks on schools in that country. In the Centralinvestigations in all four cases, which were under review African Republic, as many as 10,000 children are believedat the time of reporting. The 1,235 children injured in the to have been recruited by armed groups in the past year,West Bank constitute more than double the number and more than 430 have been killed or maimed. \"Childreninjured in 2012 (552). Of the 1,235, 961 were injured during have been killed while studying in the classroom andclashes between Israeli security forces and Palestinians while sleeping in their beds,\" says UNICEF Executiveduring demonstrations, 183 during military operations, Director Anthony Lake. \"They have been orphaned,including search and arrest operations in villages or kidnapped, tortured, recruited, raped and even sold ascamps, four as a result of unexploded ordnances, and 86 as slaves.”a result of settler violence, which saw a significantincrease during 2013. During settler-related incidents, 49 INTERNATIONAL LAW RELATING TO PROTECTIONchildren were injured directly by Israeli settlers by OF CHILD RIGHTSphysical assault and stones or glass bottles thrownagainst Palestinian houses or cars. Of the 1,235 children In the tsunami of conflicts brought by the Americaninjured in the West Bank, 155 were under the age of 12. Imperialism under the pseudo-name of 'War on Terror',Eight Israeli children were injured in Israeli settlements in ‘Installing Democracies’, Development, Liberalizationthe West Bank, including as a result of stone throwing by and so on and so forth International Law serves as a goodPalestinians (seven) and, in one incident, live ammunition constraint to safeguard the childhood. The violation ofshot towards the Psagot settlement. child right is violation of various International laws ranging from those of UN, International Humanitarian CHILD INVOLVEMENT IN MILITANCY- ASSAM & Law to International Labor Law and it is considered as MANPUR war crime too. Under Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal Court (ICC),On 3rd December, 2014 The Telegraph published a piece adopted in July 1998 and entered into force 1 July 2002;entitled, \"Kids face the brunt in Assam, Manipur\" that “Conscripting or enlisting children under the age of fifteencontained a study– Impact of Conflict on Children in years into the national armed forces or using them toAssam and Manipur–was conducted in Kokrajhar and participate actively in hostilities” is a war crime. ArticleChirang districts in Assam and Imphal West and 4.3.c of Protocol II, additional to the Geneva ConventionsTamenglong districts in Manipur. It found that children of August 12 1949, relating to the Protection of Victims ofwere being forced to join militant outfits, arrested by Non-International Armed Conflicts, adopted in 1977,security forces on charges of being rebels, taking up arms states “children who have not attained the age of fifteenout of curiosity or had lost their parents in insurgent years shall neither be recruited in the armed forces orattacks and were displaced. The study found minors were groups nor allowed to take part in hostilities”. Accordingexposed to post-conflict trauma and many were falling to International Labour Organisation's Worst Forms ofprey to child traffickers — in violation of the Juvenile Child Labour Convention, 1999 forced or compulsoryJustice (Care and Protection) Act, 2000 and the United recruitment of anyone under the age of 18 for use in armedNations Convention on Child Rights. It found that conflict, is considered as a form of slavery and worst formfrequent strikes, protests and agitation left schools shut, of child labour. International Law does not prohibit thethereby seriously affecting their education. prosecution of children who commit war crime but the punishment is limited. According to the United Nations 2014: 'A DEVASTATING YEAR FOR CHILDREN' Convention on the Rights of the Child “Neither capital punishment nor life imprisonment without possibility of2014 had come a long way from various killings in release shall be imposed for offences committed bydifferent parts of the World but what happened in Army persons below eighteen years of age.” Although manyPublic School in Peshawar on the 16th December, 2014 left laws exist and a lot more resolutions have been passedeverybody aghast. The chilling massacre of 132 children still the violation of child rights continue

not and cannot exist a sovereign enforcing body. Notwithstanding the notoriety of the AmericanSo in order to deal with this problem the Imperialism and Neo-Liberalism in this regard,international community needs to use its we seek to establish here that children across thebilateral and multilateral ties to pressurize those Globe should be kept aloof from this climate ofwho murder the childhood. The pressure created barbarism. We're grooming a hateful generationby International community can only lead to the filled with vengeance, rage, fear psychosis (inenforcement and adhering of the International reasonable proportions) and the desire to exerciseLaw. It is the entire humankind which has to power on the other when given a chance. We areawake to awaken the conscience of those who depriving this World of intellect and the cravingdeprive the children of the spring of their life- The for Justice for all. We've sought to redefinechildhood. Justice, time and again, within the spectrum of the self. That selective dispensation of the words 'Justice', 'Freedom', 'Equality' has come to wreak havoc over the mindset of the younger generation. We really need to shift the burden of this debate onto ourselves instead of stealing the lustrous smiles. The sooner we take this seriously, the better. 7

PARLEY WITH THE PIRATES :SWARNABH DUTTASwarnabh   Dutta - one person who perfectly fits the definition of star student.Apart from his good looks and   charming smile,   Swarnabh   is an achiever parexcellence. Currently working as a United Nations Volunteer for the UNHCR asRefugee Status Determination Assistant Officer Swarnabh has been an inspirationfor many. As a student of Institute of Law, Nirma University he was the founderPresident of Nirma Institute of Law Students Activity Association and theManaging Editor of the Nirma University Law Journal.   Swarnabh, an ardentMooter and debater has participated in the 5th Frankfurt Investment ArbitrationMCC 2011, won the 5th Frankfurt Investment Arbitration pre MCC 2011 and wasadjudged the second best speaker, was a quarter finalist in Stetsons internationalenvironment MCC 2010 and  was the winner, national IP MCC 2010. Apart fromthis, he was also Adjudicator, AIL Asia Parliamentary debate championship(2012), Runner up, Debater, Shilesh Chandra Mishra National PD competition(2011) and Novice semifinalist, 7th NLS PD, (2008). After completing his LL.B degree from Institute of Law, NirmaUniversity,   Swarnabh   went on to pursue LLM from National Law School,Bangalore where he proved himself once again. Swarnabh was the Gold medalist -LLM (human rights) (2014) and was awarded the Hunasagahalli MuthannaParvathamma Medal for highest CGPA in LLM and the Nani A Palkhiwala GoldMedal for highest CGPA in Human Rights Law.

1. What made you take up law? that plays a very crucial role. And not everyone has a similar perspective about this. How was i able to manage it, easy toMany a times I have been asked this question and almost all state, I fell in love with both. the time I have responded to it lightly that I didn't get intoanything else and law was the only area that was left for me to 4. How did Nirma help you shape your goals?be tested. Though there is an element of truth to it, I was ascience student in 10+2 and gave all the engineering exams that I owe everything that I have today on my CV and as anwere expected out of me be it IIT, AIEEE, VIT, and the unending individual, to the Institute of Law. And its not just the namelist. But I believe this is the right platform to tell you all about but all the people behind that name who I have to thank andmy decision to go with law. And the answer lies in two words, feel gratitude towards. We were the second batch of law aftermy parents. Both of them belong to the teaching fields in ILNU was established and we were the ones who had acommercial arts and visual arts, but never ever did they force plethora of opportunities ahead of us. And ILNU gave them tome to take up anything against my will. The story is very us served on the platter. Be it from being a student in the class,simple to comprehend, I always saw Baba getting entangled to being a master of ceremony, to participating in the mootsinto one or the other cases, regarding property, regarding and to representing the Institute at the national andpromotion, regarding financial matters, and I saw him international levels, to becoming the President of the Studentstruggling on the days when his matters used to come up and body, it was all a blessing from the Institute. And that is howthe courts simply went on adjourning the matters for a new much i value my Institute. It helped me stand where I am anddate. It causes great impatience to see someone who has taught made me who I am. If it wasn't for the Institute, perhaps iyou how to walk and talk suffer so much because of our gradual might not have been interviewed like this today.and mundane system. I was eager to know where the roots tothe problems lie and what could be done about them, and thats 5. How many internships did you do while you were stillhow the interest in law took its shape and I worked to get studying? How have they helped you?through CLAT and then Nirma happened. One of the mostbeautiful and learning experiences that I have ever had in my In a span of 6 years of my academic life, I was able to manage 9life so far, began from ILNU. Even though it might seem highly internships, and they ranged from working with a NGO at theunlikely, this story truly is the only reason for me to take up grassroots in Rajasthan to the Human Rights Watch and thelaw as a career. UNHCR at the international arena, and including several law firms and senior advocates in India. How have they helped me?2. You have been an inspiration for many. Who has been your massively. now I know how to talk to the top lot of advocates,inspiration? how to work under the most stressful conditions and, even how to survive when you have nothing to do but just kill your time.If you had asked me this question 5 years ago I would have And this is how the internships mould you and that's oneanswered it quite differently and without taking a single pause, lesson that I have learnt, how to get the work done efficientlygone on and said that it was my parents. But over time, I have and expeditiously, and how to survive in the lowest and therealized that this isn't my real case. I feel honoured when you highest of pressure working environments.say that I have been an inspiration for many, but I mightdisappoint you with this answer. For me, I am my own 6. Which achievement is the most special for you and why?inspiration. And this doesn't come from a high-headed attitudethat many might mistake it for, or having a self loathing This is another tough one to crack. There have been manyoutlook or a feeling that everyone is lesser than me, or that I special moments that i have come across, but yes, when you askneed none to live my life with, no...and i hope you don't take me me, there is one at the tip of my tongue. It was when the team ofwrong. Its simply that, all my life, after i have understood my 4 of us, Vijita Mohanan, Sandeep Bansiwal, Ritu Modi and me,thoughts, it is you who needs to determine the course of your won the National rounds for the 5th Frankfurt Investmentlife. Your parents would always be your concrete support, so Arbitration MCC, 2011 at Amarchand Mangaldas, New Delhi,will be your peers, your teachers and above all, the Almighty, and we were the top team from India to proceed for Arbitrationbut at the end of the day, it all boils down to what you are to be held at the Goethe University, Germany. One of the mostgoing to do with your life that lies ahead of you. You can follow memorable achievements of my life, and the reason behind itwhat people around you have to say, and in case you fail, you was the amount of work that we did continuously, the sleeplesswill always have them to blame. If you have your own self, you nights that were spent just to get one paragraph written andyourself decide whats going to be the best for you, then thats it, the unending toiling to get the memorial in shape, and thenit is your burden to carry and it is your responsibility to finally, when it all turned out to our advantage, it was justshoulder and to make way for yourself, to fight your fears and splendid to witness that all our efforts were worth it. Suchto win your battles. You've got to stand up for yourself, because satisfaction. all those times that were spent, perhaps I willperhaps not everyone and not every time, you would find cherish them for the rest of my remaining life.   someone who can do it for you. You drive your own inspiration.Always value those who matter to you in your life and those 7. What is the one advice you would like to give to all the lawwho have impacted you in good or bad ways. students?3. How did you manage academics along with your extra I hope you wouldn't mind if I share two. One that I have learntcurricular activities ? from my father, and I put it like this \"We either make ourselves miserable or we make ourselves strong, the amount of workIts a very tricky question with a very simple answer. I can required in both is the same\", its only the people who matterexplain to you my version of it and this is how it goes...You that stay in times when you're at your worst phase of your life,always need popcorn/nachos when you watch a movie, you and that has always guided me thus far. And the other one, thatalways need a dessert when you go out for a meal, and thats I follow comes from the legendary movie and my favourite,how i see the relation between academics and extra curricular Batman, and in those very words, \"Why do we fall? So that weactivities. Both of them are very essential to build one's can learn to pick ourselves up and rise.\"persona and to learn how to take on new challenges with themost effective solutions. Its always a matter of prioritisation 7

E-rickshaws and e-carts will now be RETURN OF E-ply on roads legally as the Cabinet RICKSHAWS ONapproved the ordinance on January 7,2015.This ordinance ought to treat ROAD AFTERthese two as motor vehicles under the COMPROMISING ONMotor Vehicles Act, 1988.The passageof this ordinance was not encouraged SAFETYby all. Several MPs raised concern overthe issue of passenger safety and cheapparts purchased from China.Thegovernment took the ordinance routeunder Article 123 of the Constitutionof India for carrying out the proposedamendments in the line of MotorVehicles (Amendment) Bill, 2014 as theMotor Vehicles Amendment Bill wasnot able to be passed in the recentlyconcluded winter session ofParliament.By the virtue of this ordinance, e- ~AMRITA JHArickshaw drivers would not have to [RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW]wait for an entire year to get a licenseto drive their battery-operated These e-rickshaws run by four 12 volts batteries with powervehicles. If e-rickshaw drivers pass the output of 650 to 850 watt. E-rickshaws are designed to ferrydriving test, they will be issued learner’s only four people, but it has been observed that the drivers carrylicenses. After 30 days of getting the learner’s license they will get almost 8 passengers, endangering their lives.general Light Motor Vehicle (LMV) licenses, mandatory for E-RICKSHAWS ALSO CREATED A POLITICALdriving transport vehicles.Till now, despite the limited speed and CONTROVERSY FOLLOWING REPORTS THAT PURTIpower of e-rickshaws, the operators were equated with drivers GREEN TECHNOLOGIES PRIVATE LIMITED (PGTL), ONEof commercial transport vehicles and had to wait for a year to OF THE SEVEN COMPANIES WHICH WERE GRANTEDget a LMV license. LICENSE BY STATE-RUN COUNCIL FOR SCIENTIFIC ANDTHE MINISTRY’S MOVE TO LEGALIZE E-RICKSHAWS INDUSTRIAL RESEARCH (CSIR) TO PRODUCE E-CAME AFTER THE BAN ON PLYING OF THE VEHICLES IN RICKSHAWS, HAD MR. RAJESH TOTADE AS A DIRECTORDELHI ON THE GROUNDS THAT THEY WERE A TRAFFIC WITH 50% STAKE. MR. RAJESH IS THE BROTHER-IN-LAWAND SAFETY HAZARD BY THE DELHI HIGH COURT. OF NITIN GADKARI WHO HOLDS THEIn July, a three year old boy, lost his life due to falling into a pot of TRANSPORTATION PORTFOLIO. PGTL WAS FORMEDboiling sugar syrup when a three-wheeler hit his mother and UNDER THE PURTI GROUP. GADKARI RESIGNED AS THEthrew her off-balance outside a street-side sweet shop in east CHAIRMAN OF PURTI GROUP IN 2011.Delhi. Due to this incident, Delhi high court banned e-rickshaws The Delhi Government’s Transport Department, through ‘E-with immediate effect. A PIL was filed in the Supreme Court rickshaw Sewa Scheme’ notified a new set of rules governing thewhich sought a regulatory mechanism for e-rickshaw. According operation of e-rickshaws.This set the stage for the return of theto the PIL the e-rickshaws were running amok on the city streets battery-operated vehicles. According to the department, e-and hence a regulatory mechanism was required.The Petitioner rickshaws would now be registered as transport vehicles underalleged that the inaction on the part of authorities was \"wholly the registration series ‘DL-1ER’ and would be granted contractillegal, arbitrary, mala fide and against the principles of natural carriage permits without fare meters.The drivers strictly need tojustice\". Because of this uncontrolled plying of e-rickshaws, 29 possess a valid license to drive the vehicle besides a publicaccidents occurred in which lives of 2 passengers were lost.Till service badge.June, 137 cases were registered against e-rickshaw drivers forrash and negligent driving. It was alleged that unregulated “The applicant should not own any other e-rickshaw or transportoperation of the battery-operated vehicles tends to cause traffic vehicle with a permit. Such vehicles must also be equipped with aproblems and were causing nuisance on the roads. first-aid box and fire extinguisher,” rules under the new schemeIN INDIA,THE GOVERNMENT RULES HAVE LEAD TO state in addition to requirements such as the model of e-rickshawCONTROVERSIES IN OPERATION OF E-RICKSHAWS. being duly approved in accordance with provisions of section 126 ofTHERE HAVE BEEN SEVERAL BANS OVER TIME, BUT EVENAFTER THAT, E-RICKSHAWS KEPT ON RUNNING IN THE Motor Vehicle (MV) Act, 1988.CAPITAL.THIS FORCED THE GOVERNMENT TO FORM The address and telephone number of the permit holder areSOME NEW RULES. required to be painted on the left side of the vehicle.TheAccording to the Central Motor Vehicle Rules, motor vehicles scheme also stipulates that e-rickshaws should have a seatingbelow the range of 250 watts and speed up to 25 km per hour capacity of four persons, excluding the driver, with maximumare exempted but e-rickshaws are still sold above one horse luggage weight of 40 kg while e-carts can transport goodspower without being subjected subjecting to any test under the weighing up to 310 kg, a yellow colour reflective strip on its rearrules. side.The prescribed dimensions are: length- 2.8 meters, height- 1.8 meters, width- 1 meter.

Legal framework essential for electric three-wheelers protects the vehicle's owner from liability arising fromThe notification fails to specify the tests which will be carried accidents involving the vehicle.out on the e-rickshaws.The government's decision to legalize E-rickshaws were started with good intentions just beforee-rickshaws has been taken in a hustle, thus undermining the the commonwealth games to replace the rickety rickshawssafety of commuters.The basic objective and spirit of the with the e-rickshaw. Several futuristic elements were instilled.Motor vehicles Act are bypassed in order to honour the Some of the ideas were like the driver would be givencommitment of the Union Road Transport minister to the e- training by private companies and the e-eickshaw would berickshaw lobby. Important issues like the stability of the made by recyclable material. But unfortunately none of thisvehicle or whether the vehicle has enough power to drive happened because of the unwillingness of the organizationsup an incline are neglected. Such omissions endanger the to register such kind of transportation vehicles. Neither thelives of road users and commuters.The basic regulatory carriage department nor Delhi Transport department agreedframework should be put in place. According to the Motor to register these e-rickshaws.Vehicles Act, 1988, no vehicle is allowed to ply on Indianroads without taking a third-party insurance cover.This coverA coin has two sides. Properly regulated, they can be a boon. Government should take a holistic view of the safety standards andimplement them without delay. It should not be forgotten that with the one lakh e-rickshaws, there will be four lakh peopletravelling.The safety of these people and the safety of the people who are on the roads, should not be compromised This newlicense rule is easier for the drivers, but the key question is whether safety standards are being compromised.Whether illiteratescan be trusted with a license are the questions that need to be answered. It serves as a substitute for manual pulling rickshawsand is a way of livelihood for many poor families but on the other side, unregulated operation and reckless driving give rise toseveral safety issues. Any further assembly or production of e-rickshaws should be strictly prohibited till a regulatory mechanismis put in place.The vehicles are putting passengers at risk since the latter cannot claim insurance in case of an accident.We hope that this entire plan is well implemented without compromising safety and create a new source of livelihood for thepoor masses 7

STATUS OFWOMEN IN MODERN ERA -RAPES AND ACID ATTACKS ~ Aparajita Karki [College of Legal Studies, University of Petroleum & Energy Studies, Dehradun]

“A lady was crying in the arbitrator room because her moving bus and was fatally assaulted. The victimhusband severely beat him up yesterday, the face of the succumbed to the injuries and died a tragic death a fewlady was swollen and her hands were injured. “ days later despite of a great effort to save her by the government and the authorities. Though, the accused wereThis line reflects the status of women in today’s society. A hanged till death yet the condition sees no improvement.woman’s dignity is of great importance not just for her and Very recently, on the night of December 8, 2014 in Delhi afor her family but also for the society in general. This is private cab driver allegedly raped a woman. Thequite evident from the historical perspective as well. In the investigation is still going on but the serious question isHindu society, people say that a woman’s dignity is like whether there is any stop to these kinds of incidents ever.her jewellery. In the Muslim society, a woman wearsburka to cover herself up to prevent demonstration of her In India before 3rd February 2013 the Indian Penal codeskin to others. However, Status of the women has been a defined rape in section 375. Rape is a situation where asubject of many changes over the millennia. During the person most of the time a female is forced into sexualglorious Vedic period, women were given equal importance intercourse, against her will. But there is an exception thatto men. But with changing times, their status in the society is if the wife is under 15 and the husband does matrimonialhas gradually depreciated and they have become a mere rape then that is not considered as a rape. Marital rape,object of satisfaction for the men. Today, women are same sex rape and considered all sex with a minor belowstruggling everywhere to get equal rights and equal the age of 16 as rape were not counted. But after 3rdtreatment as men. In the context of our own country India, February 2013 there were changes made in the Indian Penalno girl can say it confidently that she is safe and no harm Code and same sex rape was added and raised the age ofcan be done to her. In India, the irony is that we worship consent to 18 years, even after the 2013 reform, maritalgoddesses and call our country as Bharat Mata, however rape continued not to be a crime in India. However, it mayin terms of safety of women, we are nowhere. Records state be considered a prosecutable domestic violence under otherthat India counts in the countries with highest rate of sections of Indian penal code, such as Section 498(A) ascrimes against women. This is a huge letdown since it not well as the Protection of Women from Domestic Violenceonly shows the regressive mentality of Indian men but also Act 2005reflects our failure to build a society with safety for all. Acid is a cheap, easily available, and the quickest andRapes and Acid attacks are the most prominent forms of safest way to destroy a women’s life, this is so because incrimes against a woman. Other crimes such as female most of the cases if it is a rape the girls are aware of theirtrafficking, dowry, child marriage, female infanticide, etc rapist and seeing the law if caught the punishments areare also very widely prevalent in our society. The most brutal but in case of acid attack mostly the criminal is notpalpable reason of concern is the fact that in India, despite found because it is a matter of split seconds that the acidof severe laws, there is no fall in the crime ratio. Not a is thrown. It is a growing up crime in India. Acid attack issingle day goes when we don’t read about some form of also termed as acid throwing. Acid attack can also becruelty against some woman in some part of our society. termed as a violent attack in which the criminal tries toThis is a matter of deep regret and shame. injure the body of the victim mostly the face because in the country like India mostly girls are rejected because they doIndia ranks 3rd in the list of countries with highest number not have a good complexion, so in such a state if a girl hasof rape incidents by the US . In India , Rape stands 4th in got her face ruined that would just end her life and herthe list of crimes.. According to the National crime records happiness because all she will all her life be taunted by thebureau 2013 annual report, in 2012 the number of rapes society. Over the years this has been increasing in ourreported was 24,923. Out of these, 24,470 were committed country and it is a matter of sorrow. This has been soby relative or neighbour, the victim knew the alleged rapist common in India that a woman dared to refuse a man'sin 98 per cent of the cases. However, it is estimated that proposal of marriage or asked for a divorce, the man hasonly 1 in 10 rapes in India gets reported, while in the US the audacity to injure her by throwing acid on her.46% are reported. Rape in India has doubled from 1990 to2008. The main reason is that most of the cases are notreported. Also, there are few cases which have happenedand that have taken over by fear in everyone’s heart. Oneof such incidents is of the Nirbhaya rape case whichhappened in Delhi on the night of 16th December, 2012. Inthis case, the victim was brutally gang-raped inside a 7

MEDICALNEGLIGENCEWITH REFERENCETO ANURADHASAHA'SWRONGFULDEATH CASE~Neelanjana Paul[KLE Society’s Law College, Bangalore]Negligence is merely the failure to exercise due car. The due to the conduct of the doctors, which has fallenthree ingredients of negligence are as follows: below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a1. The defendant owes a duty of care to the plaintiff. patient. He is liable for only those that are a consequence of a breach of his duty.2. The defendant has breached this duty to care Doctors are revered in India. They are treated next to3. The plaintiff has suffered an injury due to this God. However, with the recent judgement of Anuradha breach. Saha’s Medical Negligence case, we are not at the mercy of a medical establishment that both plays God andMedical negligence is no different. It is well known that Shylock, trying to extract every pound of flesh from itsa doctor owes a duty of care to his patients. The duty patients but remaining completely unaccountable at thecan either be a contractual duty or a duty arising out of same time.tort law. The duty owed by a doctor towards hispatient, in the words of the Supreme Court is to ‘bring ANURADHA SAHA’S CASE OF MEDICALto his task a reasonable degree of skill and knowledge’ NEGLIGENCEand to exercise ‘a reasonable degree of care’ (LaxmanBalkrishna Joshi v. Trimbak Bapu Godbole). A doctor Kunal Saha, a graduate from NRS Medical College,doesn’t have to ensure that every patient who comes to Kolkata in 1985 and went on to America for his furtherhim is cured. He only has to ensure that he confers a studies. He did his PhD from the University of Texas, isreasonable degree of care and competence. now an MD and specialises in HIV/AIDS research. He met Anuradha Saha by sheer co-incidence and theirThe liability of a doctor arises not when the patient has story unfolded into a fairy-tale love story.suffered any injury, but when the injury has resulted

Chasing the American dream, they were finally settling down in The Supreme Court gave a patient hearing to all parties over aColumbus and Anuradha Saha wanted to visit Kolkata before period of two weeks.  While several senior advocates (Mr. Vijaystarting a new phase of life. Little did they know that how their Hansaria, Mr. Ramji Srinivasan) appeared on behalf of the guiltylife was about to change forever in the next few days. doctors and AMRI Hospital, Dr. Saha appeared in person to argue on his own behalf.  Many new concepts that prevail for theIt was during the visit to Kolkata that Anuradha Saha developed victims of “medical negligence” in developed countries includinga mild rash from an allergic reaction to a drug. The type she had compensation for “punitive damages” and “inflation” wereis medically known as “toxic epidermal necrolysis” (TEN), strenuously argued before the Apex Court.  The Apex Court waswhich could happen as an allergic reaction to almost any drug or also urged to frame new guidelines for determination of “justnon-drug like vitamins and even gin and tonic. For treatment compensation” for the victims of medical malpractice.  Dr. Sahashe consulted   Dr. Sukumar Mukherjee, who was quite well has already testified that apart from his personal legal expenses,known as one of the best doctors in the city. Dr. Mukherjee the entire award for death of Anuradha, which now stands  moreadvised a drug called ‘Depomedrol’ , in a manner which was than Rs. 200 crores including interest, would be donated fortruly baffling.  'Depomedrol' is a long standing drug normally promotion of better healthcare and for the poor children of India.used for extreme cases of asthma or   arthritis,   and given ata maximum dose of 40-120 mg at 1-2 weeks interval. However, The Supreme Court's landmark judgment in the medicalAnuradha was given that about 15 times its normal usage. negligence case pertaining to Anuradha Saha is being spoken of as a watershed development. The Supreme Court's decision toA well-known physician Dr. Sukumar Mukherjee prescribed a award around Rs 11 crore as compensation to the plaintiff of thedrug for her and she was later admitted to the   AMRI 15-year-old Anuradha Saha medical negligence case is under the care of three other physicians. Soon her skin The judgment and the compensation amount - the highest instarted to peel off and she is diagnosed with a life-threatening India - highlight the problem of increasing medical malpracticecondition caused by a drug reaction. She was airlifted to Breach in the country and should serve as a deterrent in similar cases.Candy hospital in Mumbai where she breathed her last. There's no denying that India's healthcare sector is in poor shape. While public hospitals and clinics suffer from a woefulTHE FIGHT AND THE JUDGEMENT lack of infrastructure, private service providers have been accused of profiteering and other exploitative practices. A weakThe 15-year long course in the much anticipated legal battle in regulatory regime has led to the rise of an unholy nexus betweenthe Anuradha Saha death case for which countless victims of doctors, hospitals and diagnostic services. Hence, patients are left“medical negligence” have been waiting with bated breath has at the mercy of a venal system with few alternatives.finally come to an end when the Apex Court bench of JusticesMr. C.K. Prasad and Mr. V.G. Gowda concluded the final In such a scenario, it becomes very difficult for victims and theirhearing and kept the judgment reserved. This case involves the kin to prove cases of medical negligence. Given the technicalwrongful death of Anuradha Saha, US-based child psychologist, nature of the medical profession, negligent acts of omission ordied from gross medical negligence by several top Kolkata doctors commission need to be verified by fellow doctors who hardly ever(Sukumar Mukherjee, Baidyanath Halder, late Abani support the patient. Besides, victims fear that reporting cases ofRoychowdhury and Balaram Prasad) and AMRI Hospital in malpractice will deny them treatment in future. Thus, in thisKolkata during a social visit to India in 1998. After a long and skewed doctor-patient relationship it's the duty of the system toseemingly impossible legal battle for more than a decade, protect the latter. Enhanced monetary compensation for provenSupreme Court eventually held the Kolkata doctors/hospital cases of medical negligence is a useful way of balancing out theresponsible for Anuradha’s death in 2009 and remanded the case power equation between health service providers and ordinaryback to the National Consumer Commission (NCDRC) only for citizens.determination of the quantum of compensation to be paid by theKolkata doctors/hospital. The argument that this will make doctors extremely cautious and increase treatment costs for patients doesn't cut ice. WhileOn October 21, 2011, NCDRC awarded a total of Rs. 1.7 crores there's a strong case for increasing health insurance productscompensation against the Kolkata doctors and AMRI Hospital and services throughout the country, the cost of medicalbut deducted more than Rs. 40 lakh on ground of alleged negligence for victims and their families is far greater. Low-cost“interference” by Dr. Saha (although Apex Court held only the healthcare cannot be a substitute for quality healthcare. TheKolkata doctors/hospital guilty for Anuradha’s death) and also Anuradha Saha judgment puts the onus of safety, properdue to the death of one of the guilty doctors, Dr. Roychowdhury.  diagnosis and treatment on the doctor - as it should be - ratherAlthough this was the highest compensation ever awarded in than the patient.India for death of a patient due to “medical negligence”, Dr.Saha has challenged the said order passed by NCDRC onnumerous grounds including the fact that the NCDRC did notfollow settled principles for calculating compensation in“medical negligence” cases while dismissing more than 98% ofDr. Saha’s claim.   The NCDRC also used the “Multiplier”method for calculation of compensation which has never beenused any case of “medical negligence” until now.  7

TRADEMARKS AND IT’S REMEDIES ~Devita Shah [KLE Society’s Law College, Bangalore]A trademark is a mark, logo or trade name which identifies a them to make benefit out of that services. Therefore,business to its customers. It is generally words, phrases, logos establishing a goodwill on the part of plaintiff in his businessand symbols used by producers to identify their goods. or his goods or services is necessary to which the trade orHowever, shapes, sounds, fragrances and colors may also be public will be led to associate the defendant’s activities. In oneregistered as trademarks. The history of trademark dates back of the decided case Durga Dutt Sharma vs. Navaratnato one thousand B.C. During that time, the craftsmen Pharmacy Laboratories1 where it was held that the onus toengraved their names on the piece of art made by them just to prove infringement is on plaintiff.prove their authenticity over the work done. But today it is Secondly, False representation by the defendant to attractused to distinguish between the products made by two unlike more customers is a punishable offence. In Spalding vs.companies. The different logos, design, symbols are made in Gamage2, it was explained by the Lord that: “Where theorder to attract the consumers. Trademark helps the owner to plaintiff and defendant were not competing traders in the lineprevent the use of similar of identical signs by competitors if of business, a false suggestion by the defendant that theirsuch trademark can lead confusion. A trademark is different business were connected with each other would damage thefrom patent and copyright. Patent protects an invention reputation and thus the goodwill of plaintiff’s business.”whereas copyright protects an artistic and literary works. Lastly, Damages plays an important role in determining howTypes of trademark available are: much loss is suffered by the owner. It is result of erroneous1. Names, including any surname step taken by the defendant which was against the rights of2. an invented word or any arbitrary dictionary word the plaintiff. It degrades the value of the goods produced by3. letters or any numeral or any combination the original company.4. symbols5. monograms REMEDIES6. shape of goods or their packing Remedies are available to those whose right has beenIn India, the classification system prevails where goods and infringed. Generally, damages are the most common remedyservices has been classified into classes of registration. This but apart from that there are various other remedies areclassification made by WIPO namely the International available to mitigate the losses incurred by the owner.Classification of Goods and Services which consists of 34 1. Injunctions are provided by the court to stop the use ofclasses of goods and 8 classes of services. And thisclassification is followed by many countries of the world. The trademark by the infringer. It is a kind of civil remedytrademark provides an exclusive right to the proprietor and and its main purpose is to prohibit the person whose act isany infringement will cost to the person who has infringed unjust and ruing the reputation of the other bythe right in respect of any goods and services. Though unauthorized use of the trademark. There are mainly tworegistration of trademark is not compulsory in India but if it types of injunction, permanent and temporary done it protects the person and also provides legal remedies. Former is for permanent restraining whereas latter is forRegistration is a legal process provided under for under Trade some specific time.Mark Act, 1999. 2. Another remedy is the unfair competition law whichA trademark infringement hampers the reputation of the provides for the trademark dilution. The main element ofowner as well as his business with devastating consequences. the infringement is the confusion which arises betweenFor this purpose remedies are provide in order to mitigate the the two products. However, in some cases where theexpenses bear by the owner. It is a valuable part of a daily problem is nowhere related to confusion but is aboutbusiness and informs the world about the product and its unfair use of the trademark which causes damage to theservices. In order to minimize the damages suffered by owner, owner. Thus, the law of unfair trade competition is ait is necessary to prove that genuinely his right has been wide ranging concept and basically helps to prohibit theinfringed. practice which society seems to be unfit. But with theFirstly, It is very necessary to be proved by the owner that the changing world, changes are being made. In one of thegoods and services provided by him must be associated with recent judgment of Samsung Electronics Co. Ltd. vs.goodwill which is spoiled by some other person who has Champion computers3 where parallel import has becomemisused and infringed the right of owner. Goodwill is thus the a boon and has also created a problematic Court andbenefit and advantage of a name and get-up, and it is the made certain changes in the trademark law. This benchattractive force which brings in business. Goodwill is not has overruled the judgment given by single bench statingvisible but is made in the mind of customers which allows that parallel imports are not authorized. under the India trademark law. But the division bench clearly upheld that parallel import do not infringe the right of proprietor and parallel importation is valid under the Trademark Act, 1999. 3. Monetary compensation is also granted to compensate the

trademark owner. It can also be increased up to 3 times if it is as per the laws laid down.Even the court has the discretion to award to the owner and other expenses incurred bythe owner for bringing up the action. In Time Incorporated vs. Lokesh sriastav4 in thiscourt awarded both compensatory damages and punitive damages for infringement of thetrademark Time. Therefore, the protection of trademark is important not only for the benefit of business but also for the protection of consumer from fraud and any conduct which violates the right. The Trademarks Act, 1999, the law provides for a better protection of trademarks, the fact that the trademark law provides protection to trademarks has come out to be a reality. The present Act expressly recognizes the common law remedy and thus saves both the registered and unregistered trademarks from being misused. 7

GST: STEPTOWARDS TAXREFORM IN INDIA~ Kartikey Kesarwani [College of Legal Studies, University of Petroleum & Energy Studies, Dehradun]No system of federation can be successful unless both Union However, due to a large number of direct and indirect taxesand the states have at their disposal adequate financial resources levied by the Central and State governments, often carrying out ato enable them to discharge their respective responsibilities business becomes very difficult. Right from starting a business tounder the Constitution. It is very necessary that both Union and its functioning, a businessman is required to pay different types ofStates are autonomously funded so that neither feels any burden taxes which have to be maintained on two different records.on them with regards to tax monitoring.With the quasi federal Such a situation often causes the businessmen to evade the taxessystem followed by the country, both the center and the states so as to save his hard earned income and escape the agony ofparticipate in the collection of taxes. filing taxes.The taxation system in India is one of the most complicated taxsystems in the world.The distribution of sources of revenue To overcome the hardship caused to the taxpayers due to abetween Union and the States are based on the three lists plethora of taxes, Government has proposed to bring intoprovided in the Seventh Schedule of the constitution wherein the effect the Goods and Services Tax which is a value tax and issubjects are divided into three lists: Union, State and the being used widely in more than 150 countries.The idea ofConcurrent lists. Union and the states make laws on to their GST was first mooted by the, then Union Finance Ministerallotted subjects as per the list. Shri P. Chindambaram in his union budget of 2006-2007. The Goods and Services tax is a very significant step in the taxation laws of the country since it seeks to replace all indirect taxes levied on the goods and services by the Indian central and state government. If implemented, GST will amalgamate a number of Central and State taxes into a single tax and hence the concept of indirect tax will be pulled up from the Indian taxation system. For the implementation of GST, the Constitution (122nd Amendment) Bill, 2014 was introduced for the first time in Lok Sabha on December 19, 2014 by the Finance Minister Mr. Arun Jaitley. Powers between the Centre and the States are clearly demarcated in the Constitution and so there is almost no overlap between them. Hence, changes in the bill will have to be in relation to the well-established rules of constitutional interpretations such as doctrine of repugnancy, jurisprudence on deemed sale, and rule of harmonious construction of legislative entries. Also, introduction of the GST would require amendment in the Constitution so as to concurrently empower the Centre and the States to levy and collect GST.The assignment of concurrent jurisdiction to Centre and the States for the levy of GST would require a unique institutional mechanism. For it to be effective, such a mechanism will also need to have Constitutional force. The Amendment Bill contains 21 clauses which gives the idea about the implementation of GST in the country. Cl.2 states that both the Parliament and the State Legislature shall be enabled to frame laws with respect to the GST.The taxes levied by the center or the states will be replaced by the GST. All the taxes will be merged into a single one with a tax-rate which is uniform in all over India.The main reason behind the uniformity is that these taxes act as a barrier, which is proved to be unfair.

In addition to these, there shall be “Dual GST” which is one for Clause 17 describes that the State legislatures shall have powerthe Central and one for the State. Central GST will be stated as to levy certain taxes to an extent, collected by local bodies whichCGST and State GST called SGST. These will lead to the include entertainment and amusement taxes.exclusion of several central taxes, custom duties, and State taxes. Clause 19 of the bill provides Centre Compensation mechanismUnder Clause 10 of the Bill, it is stated that taxes on the goods by which states are entitled for the compensation of any loss ofand services on imports and the businesses between the states revenues by the implementation of GST. The loss will bein the territory of India (including union territories) shall be compensated by the Central Government on thecollected by the Central Government. The taxes shall be recommendations made by the GST Council for period whichdistributed between the Center and States which shall be may extend to 5 years.determined on the advice of the GST council by Parliament. The main purpose behind the implementation of the GST is toClause 17 (a) of the Bill, states that certain products will be replace the many indirect taxes which are acting as anexempted from the purview of GST.These goods are: petroleum impediment to the start of a business. The implementation ofgoods, including:- (a) petroleum crude; (b) high speed diesel; (c) GST will provide a common national platform for the taxation ofmotor spirit; (d) natural gas; (e) aviation turbine fuel; and (f) all goods and services. It will subsume various central and statetobacco and its products; Also Central Government is indirect taxes. Also, the entire share of the revenue shall beempowered to impose excise duties on these products. The divided between Centre and the State. Due to the convenientalcohol products are also being exempted from GST as the system of filing taxes, tax-evasion will also go down. Apart fromgovernment didn’t like to allow free trade on this property. these, Goods and Services tax will also simplify and harmoniseHowever, in case of petroleum products the GST council will the tax system in India which will consequently boost thelater give its recommendations. national economy as a result of the increase in tax- revenues.Clause 18 describes that the Central Government shall impose However, the bill has received stiff opposition from thean additional tax on supply of goods which will not exceed 1% manufacturing states since the tax collections are based on theduring the trade between states which will be collected by the sale of the goods.This will cause the manufacturing states to bearCentral Government for a period of two years or any a huge revenue loss as the sale of the goods will depend on therecommendations made by the GST council and taxes shall be consuming states. The inclusion of the petrol products in theassign to the states. purview of GST is also likely to incur huge revenue loss to theThe important thing placed in the Bill is the GST Council states. The threshold limit has also to be strictly checked so asdescribed in Cl. 12 which will be inserted as Article 279-A, not to keep it too high or too low. Many states have claimed thatconstituted by the President within sixty days.The council will be the compensation provided to them according to this bill is notconstituted by the members namely:- sufficient.1. Union Finance Minister - Chairperson; On many pertinent issues, the bill is silent. No method has been2. Union Minister of State in charge of Revenue or Finance - described in the bill to provide assistance to the states for the collection of the revenues. Also, the Union government has been Member ; empowered to interfere directly which can undermine the3. Minister in charge of Finance or Taxation or any other sovereignty of the states. The provisions for states possessing special status are not being fully described in the whole act. The Minister nominated by each State Government - Members. acts provides the members of the council to work in the4. Members will choose one among them as Vice-Chairperson consensus however the term consensus is not defined anywhere in the bill. of the Council for a period which is to be decided by them. The GST bill is contrast with idea of federalism and the basic Hence, the council will be a constitutional body headed by structure of the Constitution as it is against the spirit of the lists the Union minister of Finance. The council will give described in the Constitution. In such a case, both Parliament and recommendations about the:- State legislatures have equal power to frame laws regarding the 4.1. Taxes, cesses and surcharges levied by the Union, tax matters. In the previous GST bill, there was GST Dispute Settlement Authority which adjudicated disputes between the States and the local bodies; Center and states, however in this bill, GST council will settle 4.2. The goods and services that may be exempted from disputes. The GST Bill will be tabled in the Parliament in the next session. the goods and services tax; The Petrol products are also included under the purview of GST 4.3. Threshold limit of turnover on which goods and and the recommendations are being approved by the Cabinet. The GST bill is regarded as the biggest tax reform after the services may be exempted from GST; independence. Owing to the advantages of the GST the Central 4.4. Other matters relating to the goods and services tax, Government should not give up on the bill and should take the states into confidence that the bill will not affect the relations as the Council may decide. between union and the states and the idea of federalism willThe GST council shall also resolve any disputes arising out of remain intact. A mutual understanding between union and thetheir recommendations. states is the call of the hour so as to provide the maximumThe bill also states that special provisions shall be framed for benefits to the people.special status states on the recommendations made by theCouncil. 7

Age of Juvenility: Need of Reduction from 18 to 16 ~Shristi Kumari [National University of Study and Research in Law, Ranchi] “Lexicon meaning of the term Juvenile is ‘a young personal disorganisation in the sequence of experience and person, not fully developed who displays or suggests lack of influences that shape behaviour problems. This signifies thatmaturity’. On the similar conceptual line the term has been legally factors influencing ones behaviour can be a result out of external forces pertaining to the society. A child brought up in defined under Section 2(k) of Juvenile Justice (Care and an ill-cultured society or in a hostile environment is more Protection) Act, 2000 as any person below the age of eighteen likely to pick up shortcuts and defy the norms to fulfil his needs. years. In the light of the United Nation Convention on Child A child is characterised with undeveloped cognitive faculties. Rights, amendment was brought in the Act of 1986 and hence Expecting, from a child, a calculated act of crime as similar tothe age of juvenility among boys was increased from 16 years to an adult - to carefully analyse the outcome and consequences 18 years.The Act of 2000 has its operation broadly over two of the act in question is erroneous in itself. An act by a child is categories of Juvenile of Child, namely, Juvenile in Conflict with less of product of their mental capacity and more ofLaw and Child in need of Care and Protection. Juvenile in Conflict reflection of the situations he is reared in. Unfortunately this with Law refers to such child who has acted in contravention of issue of immediate import also mirrors the failed face of the democracy. India the largest democracy in the world and the prescribed law or omitted to act as per the norms of Republic for more than 60 years is yet to provide its children prescribed law, hence has committed a crime. “ a secured and decent place to live and grow in. The system which has fallen short to carry out its function has directly orThe causes of delinquent behaviour among juveniles are indirectly contributes and encourages the problem ofvaried. Poverty, illiteracy, emotional and mental stress are the delinquency among juveniles. But the same system cries formajor compelling factors for juvenile delinquency. The study their blood when they relinquish aggression to someone‘Root Causes of Juvenile Crimes’, carried out in collaboration more vulnerable than them and hence tries to seek towith the Department of Women and Child Development and reverse the power equation. Therefore eyebrows are boundthe UNICEF, revealed that a majority that is 94% of the boys to raise when the system imposes punishment on thein the observation homes were not under parental care. Also, juveniles for an act for which it itself is one of the causalabout 89 per cent of them came from poor economic agents.background. Further the Study found that those facingeconomic stress in their day-to-day lives are forced to work ata young age where they get in touch with anti-social groups.Delinquency is a condition arising in the matrix of socio-

According to National Crime Record Bureau, 2011 the offences committed. This renders the argument fallacious thatpercentage of juvenile crimes to total crimes is around 1% person of age of eighteen years who is legally eligible to electduring 2001 to 2011. However the increasing trend in the his representative is also suppurate enough to calculate the riskcrime of murder, rape and another crime under IPC remains a of an act of criminal character and therefore shall be triedmatter of grave concern. The juvenile IPC crimes in 2011 have under the Indian penal system as an adult. Majorly the gravity ofincreased by 10.5% over 2010 as during 2010 22,740 IPC the crime, the inherent characteristics of brutality and depravitycrimes by juveniles were registered which increased to 25,125 is considered to be a parameter of the culpability of thecases in 2011.3 This put the judiciary and legislature in a state of perpetrator. It would not be a smooth sailing to determine aquandary as to at what point of life of a person he should be specific age for mental discretion.considered to be mentally upright to understand an act and its In common parlance the maturity of a juvenile is measured inconsequences. With recent cases of deplorable acts by juveniles terms of information he holds. In a scientifically advancedagainst humanity itself, special reference to Nirbhaya case where society of ours were social media is in easy reach of everybody,a young woman was subjected to inhumane torture and pain to seek information regarding anything under the sun is a kid’sby the offenders one of who was a juvenile, which ultimately gloves.This gives rise to the question- is a well-informed personresulted into death of the victim, a necessary dilemma arises necessarily a well- qualified person? Does maturity of brain is athat whether the age of juvenility shall be reduced from function of the information it stores? The answer to theseeighteen years to sixteen years.According to the reformist and the restorative schools of doubts is negative forthought the object of punishment the one where the offender both scientific and socialis reformed and brought back to the normal functioning of the reasons. Eighteen hassociety. Punishment is not always an effective response to beenyouths’ behaviour. According to sociologist Edwin Lemert claims universally  recognised  asthat through repeated interaction between someone identified age of immatureas deviant and authority figures which involves labelling, the discretion which requiresindividual recognises his identity around a more deviant role, no amendment as ofthus this increases the likelihood of further acts of deviance4. present dealings of thePunishment is a means to attain the end of peaceful and day.civilised society. To attain the said end punishment can vary in The system of rules shallits form as to proportionately address the criminal act. Indian test the waters beforepenal system provides for punishments ranging from monetary bringing out amendmentfine, simple and rigorous imprisonment to imprisonment for life to the age of juvenilityand also death sentence. A rider attached here is the quantum from eighteen years toof punishment has to be decided by the Court after pondering sixteen years. Treatingover the facts and circumstances of the case, mental and mislead juveniles asphysical status of the convict, age of the convict and other similar to adults wouldrelevant factors. Also these factors are taken into consideration lead to evolution of afor dilution of punishment for a criminal act. Likewise youth victimised by thepunishment given to delinquent juvenile shall depend on the legal system. Instead offactor instrumental in making delinquent rather than on the pondering over the question, ‘age of juvenility’, hard to answer the legal institution and law enforcement bodies shall adopt an approach addressing the problem from its core. That is to say germane and workable measures shall be taken in order to fulfil the objects of Juvenile Justice system- care, protection, treatment, development and rehabilitation of the children. The provisions under law for care and protection of child shall be revived to their full extent. Active functioning of the State to protect and rehabilitate child in need and care and protection, accountability of the concerned authorities failing to discharge their functioning, establishment of more number of special homes and children homes with basic and necessary facilities, cordial and child-friendly decorum at the institutions established under the Juvenile justice Act, 2000. 7

SENTENCING DISPARITY IN INDIA: NEED FOR COMPREHENSIVE SENTENCING GUIDELINES ~Adv. Pallab Das [Odisha High Court] & Paras Padhi [KIIT Law School, Bhubaneshwar]Justice is a relative concept which changes with time. of 3 years in prison. If Judge B sentences him whoSince the codification of substantive criminal law in believes that imprisonment is not an effective1860, to the modernized India in 2015, the judicial punishment for petty offences and will be placed oncourt rooms have produced judgments which have probation according to the probation of offenders actshaken the spines of criminals and have given justice 1958. Is this fair? Should the sentence Rajkumarto the much needed victims while others have called receives depend on the Judges who impose it? Shouldfor sharp criticism. No matter what it is the Judge’s the sentence depend on a Judge’s philosophy ofstroke of ink that has created a pattern in which punishment or personal beliefs about thesentencing is given in India. The Indian penal code u/s perniciousness of crime? Or should it be based on an53 has divided punishments into various kinds based objective evaluation of the seriousness of crime andon the theories of punishment. Some crimes call for the offender’s prior criminal record.simple imprisonment, some rigorous imprisonment,some crimes call for just fines while others call for Judges often impose different sentences on similarlycapital punishment. In Indian criminal jurisprudence situated offenders or identical sentences on offendersthe maximum and minimum punishments have been whose crime and prior criminal history are different.prescribed giving the judges wide discretionary powers Echoing judge Marvel Frankel (1972a) the criticsto decide on the quantum of sentence. Under such suggest that unconstrained discretion leads tosituation there are conflicting sentencing given by the lawlessness in sentencing. In plethora of casesjudiciary wherein similar crime has been committed Supreme Court of India has cited a number ofbut different sentences have been rendered. This article principles that should be taken into account whileanalyses the concept of disparity and discrimination exercising discretion in sentencing such asin the sentencing method and if there is a need for a proportionality, deterrence, seriousness andsentencing guideline in India. rehabilitation. Mitigating and aggravating factors should also be considered. In Mohd. Chaman vs State SENTENCING DISPARITY the accused was charged under section 376 and 302 of IPC for committing rape and then murder of a one andNettlesome by poverty, Rajkumar, pick-pocketed a a half year old child. The learned trial judge came tomeager amount of money to satisfy his hunger. In the conclusion that this is a fit case in which extremeLegal parlance, Rajkumar has committed a crime of penalty of death should be awarded. The high courttheft and for the offence of theft there is a punishment confirmed the death penalty saying it to be the rarestof imprisonment of either description which may of the rare case. However the Supreme Court reversedextend to 3 years, with fine or both according to Indian the capital punishment imposed against the appellantpenal code. Based on the gravity of the crime to rigorous imprisonment for life. Similarly, in the caseRajkumar could also be placed on probation. of Gurdev Singh & Anr. V. State of Punjab theAccording to the Act, considering the circumstances of appellants were convicted of murdering 15 individualsthe crime, the offender can be released on probation or being part of an unlawful assembly and wereafter due admonition. Because it has been considered convicted by high court and were awarded deathaccording to progressive interpretation of criminal law penalty. They then approached the Supreme Court onthat person having no criminal records and tendency, three different special leave petitions out of which twowho are first offenders shall not be put in situation of them were upheld for death penalty. Analyzingwhich will bring connection with obdurate criminals both the case laws, the offence is the same but thewhich will result in increasing the criminal tendency aggravating and the mitigating circumstances arein any individual. The above illustration goes on to different. There are catena of case laws in whichshow that if Rajkumar is sentenced by Judge A, a Supreme Court has given death penalty for the samehardliner, who believes that theft is a crime on the offence of rape and murder while imprisonment for lifeincrease in India, he will receive the maximum penalty

as the other alternative to death penalty in the same statutory or otherwise in other countries, which mayoffence for reasons based on the discretionary powers of guide judges for awarding specific sentence. However, inthe Judges which has been left open as the intention of India we do not have such sentencing policy till date.the legislature while framing the laws. However the The Supreme Court also stated that the prevalence ofdiscretionary powers used by the judges introduced such guidelines may not only aim at achievingdisparity in awarding sentences. Allegations of consistency in awarding sentences in different cases, suchlawlessness and sentencing reflect concerns about both guidelines normally prescribe the sentencing policy asdisparity and discriminations. Although these terms are well. Namely, whether the purpose of awardingsometimes used interchangeably they do not mean the punishment in a particular case is more of deterrence orsame thing. Disparity is a difference in treatment or retribution or rehabilitation? The Supreme Court inoutcome that does not necessarily result from Mohd. Chaman v. State taking note on a decision of theintentional bias or prejudice. Discrimination on the Supreme Court of USA in Gregg V. Gorgia, the courtother hand is a differential treatment of individuals observed – critically examined, demonstrate the truth ofbased on irrelevant criteria such as race, gender or social what we have said earlier, that it is neither practicableclass. Applied to the sentencing process, disparity exists nor desirable to imprison the sentencing discretion of awhen similar offenders are sentenced differently or when judge or jury in the strait-jacket of exhaustive and rigiddifferent offenders receive the same sentence. It exists standards. Nevertheless, these decisions do show that itwhen Judges impose different sentences on two offenders is not impossible to lay down broad guidelines aswith identical criminal histories who are convicted of distinguished from iron – cased standards, which willthe same crime or when Judges impose identical minimize the risk of arbitrary imposition of deathsentences on two offenders whose prior records and penalty for murder and some other offences under thecrimes are very different or when the sentence depends on penal code.the Judge who imposes it or the jurisdiction on which itis imposed. In the scenario described at the beginning of To reduce the fear of crime a policy maker may seek tothis article the fact that Rajkumar would receive a impose higher punishments on certain categories ofsignificantly harsher sentence for theft of a meager crime. An assessment of levels of fear would then beamount to satisfy his hunger from Judge A, the hardliner, required. In India the moral seriousness of killing athan he would from Judge B, who believes in human being varies with differential reasons. Prevalencereformation, is an example of sentencing disparity. of caste based society and a strong system of caste and religion among masses creates controversies far beyondNEED FOR SENTENCING GUIDELINES AND PUBLIC the regular control of a sovereign. The Gujarat riot is a OPINION! prime example of that. Only an indirect measure of moral seriousness can help qualify public opinion as aOn the basis of the above illustration, do we actually legitimate point in determining sentencing policy.need sentencing guidelines in India to reduce thedisparity? The recommendation of the Malimath SENTENCING GUIDELINES IN VOGUE IN THE UScommittee on reforms of criminal justice system and the AND THE UKDr. Prof Madhav Mennon committee suggested that sincethe enactment of the IPC many developments have taken Prior to 1980, the federal courts used an indeterminateplace, new forms of crime have come into existence, sentencing system, which allowed imposing sentencespunishment for some crimes are proving grossly entirely at their discretion. Research, however, showsinadequate and the need for imposing only fine as a that this system created sentencing disparities in whichsentence for smaller offences has failed. The committee different criminals received very different sentences forspecifies that IPC prescribes only maximum punishment the same crime. In the bi-partisan reform effort, thefor the offences and in some cases minimum punishment congress passed the Comprehensive Crime Control Act ofis also prescribed. Judges exercised his wide discretion 1984, which provided for sentencing guidelines. Thewithin the statutory limits. They are no statutory National Crime Rate shows a marked decrease inguidelines to regulate his discretion. The committee is comparison to before the introduction of the U.S. Federaltherefore in favour of a permanent statutory committee Sentencing Guidelines in 1984. Both in the U.S. and thebeing constituted for the purpose of prescribing U.K. statistical analyses of sentencing shows thatsentencing guidelines. The Supreme Court has sentencing is patterned. Both these countries sentencingemphasized on the fact that superior courts except are structured by the application of Determinatemaking observations with regard to the purport and Sentencing Scheme or Guideline. Therefore, theobject for which punishment is imposed upon an offender Legislature declares that “the elimination of disparityhad not issued any guidelines. Other developed countries and the provision of uniformity of sentencing can be besthad done so. In a recent case of Narendra Singh v. State achieved by determinate sentences fixed by statute inof Punjab, the Supreme Court has emphasized the need of proportion to the seriousness of the offence assentencing guidelines stating that there are provisions, determined by the Legislature to be imposed by the Court with specified discretion. Indian Judiciary has time and 7

again through its judgments commented on the fact that there is apervasive need of a patterned sentencing guideline on the basis ofwhich sentencing disparity can be eliminated. In SwamyShraddananda alias Murali vs State of Karnataka the court wentto say that “coupled with the deficiency of the criminal justicesystem is the lack of consistency in the sentencing process even bythis court. It is noted that Bachchan Singh laid down theprinciples of rarest of rare cases. Machchi Sinch for practicalapplication crystallized the principle into five definitivecategories of cases of murder and in doing so also considerablyenlarged the scope for imposing death penalty. But theunfortunate reality is that in later decisions neither the rarest ofrare principle nor the Machchi Singh categories were followeduniformly and consistently”. But the courts have rigidly said thatit is the in the purview of the Legislature to form guideline andnot the Judiciary.Hence, the prolonged loggerhead between the two pillars of ourConstitution is nothing but buying time for themselves at thecost of the lives of innocent. Because once a death penalty isawarded to an innocent based on imperfect facts and nondesignated mitigating circumstances, his life would come to anend. It is not just that there is disparity in sentencing, or in casesof death penalty or rape but there are other offences in the IPCwhich clearly brings similar disparities into light. It is time thatwe should imbibe the finer aspects of the successful Justice Systemin various parts of the world and make our Criminal JusticeSystem stronger and more efficient.

COMMUTATION OFDEATH SENTENCES ~Prachi Kumari [Faculty of Law, Banaras Hindu University, Varanasi]Death penalty has constantly (b) in cases where the sentence these, Article- 21 of thebeen criticised for being inhuman (whether of death or not) is for constitution says that no personpunishment. It is contended that an offence against any law can be deprived of his life anda civilised society does not relating to a matter to which the liberty except according torequire this kind of punishment. executive power of the State procedure established by law. extends, the Government of theIndian criminal justice system State within which the offender Recently the SC in the case ofretains capital punishment or is sentenced. Ajay kumar Pal Vs UOI hasdeath penalty for certain serious commuted the death-sentence tooffences. At the same time, it Our procedural law also has life-imprisonment. Thiscontains provisions for scope for commutation of commutation was granted oncommutation of punishments as punishment. Section 143(a) of the the ground of ‘inordinatewell. Commutation simply Code of Criminal Procedure, delay’. A bench of Dipak Misra,means alteration, change, 1973 provides for commutation Rohinton Fali Nariman, Udayexchange or substitution. of a sentence of death by Umesh Lalit JJ. Said thatCommutation of punishment appropriate Govt. “Though no time limit can bemeans reducing the quantum of fixed within which the mercyprescribed punishment. Section Moreover, every death sentence petition ought to be disposed of,54 of the Indian Penal Code 1860 passed by a sessions (trial) court in our considered view the periodprovides for commutation of must be confirmed by high court of three years and ten months tosentence of death. It reads as as required by chapter XXVIII of deal with such mercy petitionsunder:- the Code of Criminal Procedure, in the present case comes within 1973. Even after this the expression ‘inordinate54. Commutation of sentence of confirmation, one can prefer an delay’.”death.- In every case in which appeal for commutation to thesentence of death shall have been Supreme Court. In case, the SC Similarly in the case ofpassed, [the appropriate also rejects this appeal or Shatrughan Chauhan v. Union ofGovernment] may, without the upholds the sentence, the accused India the SC commuted deathconsent of the offender, commute still has an option to file a sentence of fifteen death rowthe punishment for any other ‘mercy-petition’ before the convicts due to delay in mercypunishment provided by this President of India. Article 72(1) plea decisions. The Apex courtCode. of the constitution of India also ruled that a death row confers on the President the convict suffering from mentalSection 55A defines appropriate power to grant pardons, etc. and insanity and schizophreniaGovernment. It reads as under:- to suspend, remit or commute cannot be hanged. sentences in certain cases.55A. Definition of \"appropriate In this way the SC overruled itsGovernment-In sections 54 and Scope for commutation of own verdict in Devinderpal55 the expression \"appropriate punishment does not end at Singh Bhullar’s Case in which itGovernment\" means,- rejection of mercy petition by the has held that the delay in President. The accused still has deciding mercy plea cannot be a(a) in cases where the sentence is an opportunity to file a writ ground for commutation ofa sentence of death or is for an petition under Article 32 of the death sentence.offence against any law relating Constitution for commutationto a matter to which the on the ground of delay in The Shatrugan judgment isexecutive power of the Union deciding mercy petition or on considered a progressive step asextends, the Central several other grounds laid down the court observed: “Remember,Government; and in various case laws. Besides retribution has no constitutional 7

value in our largest democratic country”.In the view of above mentioned judgments it can be said that judiciary is moving towards discardingretributive theory of punishment and adopting reformative theory of punishment. It is contended thatcommutation of sentences is an attempt to give human touch to criminal law and is based upon Reformativetheory of punishment. Earlier, the SC in the case of Narotam Singh Vs State of Punjab had observed that, “Thereformative approach to punishment should be the object of criminal law, in order to promote rehabilitationwithout offending communal conscience and to secure social justice.”Therefore, legislative and judicial inclination towards reformative approach is apparent from above discussion.It is indeed an important approach and has been appreciated by human right activists. However I think thatthis approach is not useful in present day scenario when increased crime rate has reached at alarming level. Atthis juncture, commutation of death sentences following the reformative theory is giving a message that awrong doer is safe in the hands of so called welfare state. According to Jeremy Bentham punishment is evil in I. Provisions relating to commutation are adding towards removing fear from the mind of a wrong doer. Since punishment is the redress taken against the offender, non-punishment of offender is injustice to law- abiding people. Therefore deterrence theory propounded by Jeremy Bentham is required at this stage. II. I agree with the view of the court taken in the case of State of Punjab Vs Rakesh Kumar that, “Undue sympathy to impose inadequate punishment would do more harm to the justice system that undermines the public confidence in the efficacy of the law”. III. Since the inflicted punishment is proportionate to the crime, commutation is unjust. IV. Our criminal justice already grants exemptions to persons of unsound mind and act caused by grave and sudden provocation. There is no logic behind granting exemption for voluntary acts. V. Commutation of death sentences is like avoiding people’s hunger for justice and there is possibility of erupting public outrage. It is significant to note here that there are many instances when public revolted for giving harsher punishment to accused as happened in Nirbhya case and Jessica Lal Murder case. These incidents show that if people’s hunger for justice is not honoured, the society will not honour the criminal law. According to Hart, “Sanctions are therefore required not as the normal motive for obedience, but as guarantee that those who would voluntarily obey shall not be scarified to those who would not. To obey without this, would be to risk going to wall.” Reduction or prevention of crime is the ultimate object of punishment. Punishment causes fear and fear is an essential ingredient for avoiding crime. Therefore, death sentences should not be commuted, because commutation removes the element of fear.

ARE JUDICIAL PROCEEDINGS IN INDIA MORE BIASED TOWARDS CELEBRITIES? ~Rachana K [Symbiosis Law School, Pune]Answering ‘yes’ to the title question above, means that in a country where ‘RIGHT TO EQUALITY’ is a fundamentalright incorporated in Article 14 of the Indian constitution there are discrepancies in the reality of its execution. Doesthe concept of ‘Rule of Law’, which is considered such a substantial element of our country’s judicial systemdisappear and disappoint when it comes to celebrities?On the other hand a ‘no’ to the question would mean that fame, power, money and influence have no impact on a rightthat is so vital and entailed. Is the ‘Aam Aadmi’ and a celebrity treated alike and do they face the same trials,tribulations and the same consequences?After studying some of the noted cases we can make a definite statement.Navjot Singh Sidhu – the famous cricketer turned politician.He was convicted in 2006 for culpable homicide not amounting to murder in 1988. He was a sitting MP then, so, out ofmoral grounds he resigned from his post.This case attracted flak for a flawed reasoning in the SC judgement. The judgement had a lot of weak reasoning andclearly showed prejudice towards Sidhu’s status as a well-known person in the country. In fact, praising him, sayingthat ‘he could have gone on an appeal and retained his seat under sec. 8(4) of the RPA Act instead of resigning but didnot do so’ showed clearly the double standards that our judiciary holds! He went ahead and contested elections fromthe Amritsar constituency soon after and ended up winning the election. Unfortunately the proceedings and the wayin which the media portrays such incidents, we actually forget the fundamental issue and our thoughts digresstowards something not so significant. Nobody remembers that a youth in this particular case was actually killedbecause of a blow (according to medical evidence) and the person causing this death is let off on bail, and then endsup contesting and winning elections! A sad reality that we have witnessed, portraying that there is first amongstequals as well.Sanjay Dutt - the actor who also happens to be the son of a famous actor turned politician.When one thinks about celebrities and crime, an incident that instantly comes to one’s mind is the infamous case ofthe 1993 Mumbai blasts case. The very case that turned out to be a nightmare for Sanjay Dutt. One of the mostdestructive assaults that was premeditated and executed by Dawood Ibrahim in our country. Sanjay Dutt wasbooked under TADA for having AK-56 rifles in his possession. He was charged under Arms Act and not TADA. Thereason being, he could be granted a bail if he confessed. And he did confess that the rifles were in his possession forself- defence and nothing else. But the point is that it is rifles like AK-56 we are talking about here and not anyrevolver or other weapons that people commonly possess for self-defence.Bias till dateA prejudice in the judicial proceedings can be seen right from the beginning of this case where many of those convictedwere given harsher punishments for offences of lesser intensity than committed by the actor. Nearly a decade after theMumbai blasts case, Sanjay Dutt was convicted in the year 2013 and he has already been granted parole thrice in just3 months. . Zaibunisa, who was also convicted of the crime but for a much lesser offence, was denied parole as it wasconsidered that there were high chances for her to ‘abscond’. How is this even slightly possible when she is 70 yearsold and suffering from Alzheimer’s?Sanjay Dutt has spent 118 days out of jail after being convicted either on parole or furlough between May 2013 andMay 2014.Recently in the month of December, a 14-day furlough was granted to the actor and the reasons stated byhim are not known exactly. The frequent requests from Sanjay Dutt to get a leave from jail has actually made thegovernment to wake up and propose a change with respect to the prison rules as well so that no possibility arises forprison officials to use discretionary powers. The Bombay high court has questioned the government as to why such 7

earnestness is being showed towards granting the are used to let these celebs remain free for as long as possible before a verdict is given which ifactor’s requests and not of other convicts. passed may lead to their conviction or the due punishment whichever is applicable.Such signs on behalf of the police and otherconcerned authorities are very harmful and bring Preferential treatment to celebs is a harsh truth –down the belief amongst the citizens of the country would they have not suffered a legal consequencein law and order. in the usual manner by now if not for their being celebrities?Other stories as well So the question is after all, is law really law, whenThe list of celebrities who have gotten themselves we are talking of celebrities embroiled in legalinvolved in judicial proceedings is a lengthy one. issues?From Salman Khan who is involved in a hit-and-run case from 2003 and the illegal black buck Hence, Justice is something that should be renderedshooting incident that actor Saif Ali khan and few effectively, rationally and equitably. All citizens,other actors are also entangled in to assault cases poor or rich, influential or commoner must be heldagainst many Bollywood stars, the study of on a common platform and their actions judgedwhether the judiciary is biased towards celebrities through evidences. It is the judiciary who is duty-can be studied pretty conclusively. bound towards ensuring this. Ultimately, justice cannot be something that can be bought throughBiased judiciary is a fact! money or power or status. The reality however seems different. Hence the answer to the titleCelebrities and the affluent personalities have life question will more accurately be answered with aeasier as compared to the commoners when it ‘yes’.comes to getting away with offences that areunlawful in nature. Actors from the film industryseem to be treated like demi-gods. The casesagainst them run into mind-bogglingly longtimeframes that run into decades. This inordinatedelay in justice delivery itself is proof that tactics

THEMISOGYNEOF INDIA - ALOOK ATTHE RECENTUBER RAPECASE According to the police reports, the cab driver has shown absolutely no remorse, whatsoever,SAAKSHI SHARMA [SYMBIOSIS for his act, and has in fact gone on record to LAW SCHOOL, PUNE] say that he has been extremely libidinous since his school days and that seeing the girl sleeping On December 5th, 2014, a 25 year old executive, working alone in the backseat late at night was too for a global company as a financial analyst, was raped by much of a temptation for him to resist and so her Uber cab driver. The driver reportedly threatened to he took the car to a deserted spot and then kill her if she went to the police, but the woman took a raped her. Another scandalous statement made photo of the car’s number plate, and then reported the by the taxi driver was that the girl fell asleep in crime to the authorities. the back of a car late at night, and hence was in a way asking for it, since otherwise she On 7th December, 2014, the accused cab driver, Shiv would’ve stayed awake and aler t. These Kumar Yadav was caught by a joint team of the Delhi and statements are evident enough of the Mathura police in the city of Mathura where his car was perverted mind of the accused. found abandoned a day earlier. The accused was produced in Delhi High Court on 8th December, 2014, Although Uber claimed that it had employed where the court sent him to police custody for 3 days. Shiv Kumar based on his \"Character Certificate\" \"issued\" by police, police stated that the certificate was \"fake\" and lodged forgery case against the cab driver. An FIR was registered against Uber for cheating its customers and violating. 7

Although Uber claimed that it had employed Shiv Kumar based The following is an excerpt taken from an article that wason his \"Character Certificate\" \"issued\" by police, police stated that published in the New York Times in the aftermath of the Delhithe certificate was \"fake\" and lodged forgery case against the cab Nirbhaya Rape Case, and beautifully encapsulate the mentality ofdriver. An FIR was registered against Uber for cheating its the Indian society towards the rape victims –customers and violating lawful orders of government.The FIR was Mr.Yadav was at his barber’s and they were discussing the recentlodged under Section 420 and 188 read with 34 of the IPC. The rape case that had shocked Delhi and how it could only haveinternational cab booking company was banned in Delhi, and been the girl’s fault since she was out late at night with a boy, andfaced a similar fate in the nine other cities in India including hence was definitely a girl of questionable moral character. Mr.Mumbai. Yadav was talking about removing his daughter from school,According to police, the accused, Shiv Kumar Yadav was claiming when a male passer-by, wearing a sweater inscribed with theit was a \"consensual\" encounter for which he had agreed to pay words “two plus three equals five,” burst forth, exclaiming: “Thatthe Delhi woman the Rs. 20,000 she allegedly demanded. \"He is not right!”claimed that after consensual sex, the woman demanded Rs. But Mr. Yadav barrelled on. What really happens, he said, is that50,000 and when he refused to pay up, she threatened to go to women trade sex for money to acquire nice clothes. When theirthe police,\" an investigating officer said. mothers find out and confront them, they call what happenedAnother year, another rape. Are we becoming numb or is there rape, to protect their honour.simply nothing we can do? “If the parents have only 10 rupees and your daughter is wearingDecember 16, 2012 was a black mark on the history of India. It 100-rupee clothes. Where is she getting those clothes?” Many ofwas a slap on the face of all those politicians and bureaucrats the men nodded. He wasn’t alone in assuming that most womenwho have been making tall claims about how they have made are a couple of coveted outfits away from prostitution.India safer for women, and how no girl in India needs to fear for The man in the mathematical sweater was persuaded. “Who am Iher safety. The gruesome rape attack shook the collective to judge?” he said now. He who had stood up for women just asconscience of the entire nation and jolted the citizens as well as quickly stood down.the government into action. The trial was speedily proceeded What the above excerpt reveals is that first of all there aren’twith and strict punishment was meted out. In the wake of this enough people to begin with who feel that rape is not the fault‘Nirbhaya’ rape case, people took to the streets, organising mass of the victim. They are unable to accept the fact that rape is notprotests, and to assuage these people a new and improved, the doing of the victim but that of the perpetrator. Then therestricter and gender neutral rape law was passed in India. are those people who do stand up for women in a sudden burstSoon after the protests died down, people returned to their lives; of anger, but are equally quickly bogged down or overpoweredand this topic was forgotten.Then came a string of reports about by people of the first category. The mentality of the society as avicious rape attacks on girls as young as 5 years to as old as 65 whole, and their way of looking and their way of looking at theyears. Once more the people were up in arms, and again the crime and the victim makes a world of a difference. As long as wecities were flooded with candle marches and mass protests. The keep looking at rapes and sexual assaults as faults of the victim,politicians and celebrities again started the whole tirade of we will never be able to understand their plight or truly helpconsidering the problem seriously and fighting it with all their them. Blaming the victim is like giving a free pass to themight which again appeased the people who went back to their perpetrators to commit as nay times the offence as they wantdaily routine without anything substantial coming out of the and then getting away with it by blaming the victim.whole exercise, apart from empty promises which came in It is for a paradigm shift to take place in the mindset of theabundance. people and we all need to be united in this fight against theThe cycle continues and, now two years after the gruesome misogynistic orthodox Indian society and to usher in a new era ofincident; we still have cases such as the Uber cab rape case being gender tolerance and women empowerment.reported, with their victims languishing in anonymity due to fearof ignominy if they reveal themselves as rape victims.The question that now comes to the fore is: ‘WHAT DO WEDO?’ The solution, unfortunately, is not making noise, or protests,or candle marches in intermittent periods o,r on hearing aboutcertain instances. It is not that such measures do not do anygood, but they majorly only help in bringing that particular caseto justice, and not the broader problem of rapes in India as awhole. The solution is to take up the cause and stick to it tillsomething substantial is done to curb it.There is no doubt in the fact that India is a patriarchal society.Therural India still considers their daughters as burden, and that theirsole purpose in life is to get married, bear children, and lead a lifesubservient to that of her husband. Women still do not eat foodbefore they have fed the men of the house. A wife still requestspermission from her husband for a lot of things, and a free-thinking woman is termed as a girl of questionable morality. It isthis thinking that needs to be changed right from childhood. Thechildren right from the beginning should be taught that thewomen are at par with the men in all respects, and need to betreated as more than just mere chattel of their fathers andhusbands.

The Law onReligiousConversion ~Shubhi Sharma [Rajiv Gandhi National University of Law, conversions. However, these conversions seem to Punjab]. have flummoxed the courts to observe distinct identities of such individual cases. “When the missionary of another religion goes to them, he goes Categorization of individuals into castes andlike a vendor of goods. He has no special spiritual merit that will religion has confounded the courts to delineate which ‘personal law’ governs whom and this gets distinguish him from those to whom he goes. He does however further complicated by conversions. Judges and possess material goods which he promises to those who will administrators grapple with the ambiguities of personal and group identities, including the come to his fold.” authenticity of converts. In India and elsewhere, certain rights (to citizenship, to affirmative Religious Conversion is not new to India and has surfaced action benefits, to alimony and else) vary frequently in the past socio-political dynamics of the country. depending on one’s religious identity, making Evidently, a large group of people reckon this issue to be of conversion both a religious and a political act. crucial importance in deciding the future of society. Once again, religious conversion has become the subject of ardent Recent times have observed an increasing focus of debate of contemporary India. Recent events and statements scholars on law and religion in the Islamic made by public figures threaten to put a dent on India’s States, but the work of Marc Galanter resurfaces secular fabric. One of the largest churches in Delhi was burnt the intertwined nature of law and religion even in down and there have been allegations that the police response countries like India that are a secular was inefficient. Subsequently, in Agra, Uttar Pradesh 200 constitutional state where freedom of religion is Muslims were converted back to Hinduism by Hindu right guaranteed by the collective will of the governed. wing groups in a homecoming ceremony. This heightened A secular state is defined as the state that religious intolerance does not seem to have even escaped arrogates to be independent from all religious affairs involving children, as in Bastar, Chhattisgarh, the truths. However, Galanter contends that “No Vishwa Hindu Parishad banned   Santa Claus   distributing secular state is or can be merely neutral or sweets to children because ‘it might entice them into impartial among religions, for the state defines converting to Christianity.’ Resultantly, the government’s the boundaries within which neutrality must response to tackle the conflict at hand was to purport the operate.” One way in which state defines enactment of a national anti-conversion law. The proposal boundaries is by ascertaining and recognising brought the issue of human rights at the core of assessing the what is claimed to be religion, while other facets concept of religious conversion to spotlight. Therefore, this are put to subject of indifference; ultimately some article attempts to assess the pros and cons of having a aspects are restricted and forbidden. Another way national anti-conversion law in a secular state. is by monitoring the walls between religions. These walls are transcended by people during Personal and group identities involve within them certain conversion which enables the state to manoeuvre legal complexities which imbues as a theme for religious

the role of a doorman to regulate the laws determining became a Hindu in 1998’. The problem has furtherconversion. This role attains manifestation in the anti become manifold at the backdrop of policies likeconversion legislations existent in various states in reservation other personal law benefits like polygamyIndia. The state laws restricting conversions became and also to get rid of unwanted caste hierarchythe subject of major Supreme Court decision in systems.Stanislaus case. This case focused primarily on Article25 of the Constitution of India which states that The laws require assessment of metaphysical beliefssubject to public order, morality and health, and to the and volitions of individuals. The complexity involvedother fundamental rights guaranteed in the raises the question of evaluating “threats” of divineConstitution, all persons are equally entitled to displeasure, “allurement” of mass converts as it“freedom of conscience and the right to freely profess involves the reading of the mind of the convert which ispractise and propagate religion.” The right to a challenge per se. For example, paying the convertpropagate one's religion means the right to some amount in exchange of conversion or gettingcommunicate the person's beliefs to another person or converted in order to get reservation are both sets ofto expose the tenets of that faith, but would not include allurement. In some states, the law requires a priorthe right to convert another person to the former's registration with the district magistrate before thefaith, because the latter is equally entitled to freedom conversion takes place. Therefore, it requires theof conscience. Resultantly, Article 25(1) of the converts to subject themselves and their subjectiveConstitution does not insure the right to convert rather reasoning to the inspection of the District Magistrateguarantees only the right to freely propagate, profess in order to detect the presence of fraud, allurement orand practice one’s own religion. Forcible conversion force in those conversions. Furthermore, the laws havewhich is likely to give rise to an apprehension of breech penal effectiveness with either imprisonment extendingof public order and which is reprehensible to the upto one year or fine or both.conscience of the community is not permissible underthis Article. The entire turf of war between political extremists over religious conversions seems to have projected theThe anti conversion laws in India restricts religious converts as objects of political diabolism. This hasconversions via “force” and “allurement”, in particular. perpetuated to shape the consequences for the lower-Enforcement of such legislation necessitates evaluating status groups. Conversion laws construct women,a convert’s state of mind by examining their motives Scheduled Tribes and Scheduled castes as victims andand will to convert or in assessing whether the constructs converts (particularly group converts) asconversion was legitimate or the converts were “lured”. passive dupes of the machinations of active converters.This assessment made by the courts or government in The religious leaders have placed the potential convertrecent times is stemmed on two assumptions: one, the as the victim; either for continuing with the sameconversion in groups may not have freely chosen religion or for disregarding a religion. Conversion laws,conversion and two that certain groups are therefore, is a double edged sword: it is a protectiveparticularly vulnerable to being lured into changing legislation but is restrictive also.their religion. These assumptions have become thefoundation to source out the social fabric notions that In a heterogeneous society like India, there needs to beconsiders women and lower caste as inherently a cohesive tie between the pluralistic identities therebyprimitive and amenable to allurement. constructing a harmonious thread between the varying religion existent. It is quite a possibility that aThe state laws prohibit conversion through force, national anti conversion law will cast away theallurement and fraud. However, there strives ambiguity freedom of religion which is perhaps embodied by thein the language of the statutes which makes it difficult constitution. Freedom of religion is central to humanto analyse the convert’s motives and define the rights and is, therefore, more subjective, individualisticboundaries of allurement, fraud and force. or personal in nature. Ofcourse, forced conversions areUnfortunately, none of the words have been clearly in direct contravention of public morality and humandefined in the legislations. For example, there have been free will but the Indian penal laws are effective enoughinstances documented in government reports where to tackle the problem of forced conversions. Enacting apeople have converted due to medical, financial and “protective” anti conversion legislation would furthermaterial benefit all of which stem from the spirituality impose restrictions on people as has been exemplifiedof faith. In other instances, people have reconverted to in various government documents which would violatetheir original religion if they did not receive from the freedom of religion rather than protection per se. Thus,divine what they had initially prayed for. For Instance: conversion or reconversion should continue to remain a‘Family of Kala Marandi remained Christian for 3 personal, subjective affair without any interventionyears. Her husband was suffering from some incurable from state/political diabolism or “protection”.disease. He got cured when he became Christian butlater died in an accident. Kala Marandi then again

IPRs are essential for the innovation, CONFLICT OFcreativity and diffusion of technologywhere as competition law is essentialto prevent the anti-competitivepractices. However many of the IPlicensing practices like tying, grant backs INTELLECTUALand pooling are not intrinsicallyrestrictive in nature. The restrictivepractices in this particular area havebeen given way for the “rule of reason”approach. On other hand CompetitionPROPERTY RIGHTS INforms the basis for the companies forearning profits. Ever y countr y’seconomic structure differs from COMPETITION LAWanother according to the laws andregulations and the economicstructure of the country. India follows amixed economy due to which all the ~TRISHLA SANYALmarket structures are applicable to the [AKK NEW LAW ACADEMY, UNIVERSITY OF PUNE, PUNE]country varying from one sector toanother sector. Competition law is anewly emerged legislation and hasbeen adopted by the emergingdeveloping and developed nations tosuit their market structures. All in allevery country’s competition law focuson controlling the anti-competitive practices such as dumping, Section 4(2) of the Indian Competition Act which makes theprice fixing etc, mergers and acquisitions which are likely to have action by enterprises to be treated as abuse be equallyan adverse effect on the market sector and restricting those applicable to IPR holders,practices which are likely to restrict the free trade and economy. Section 3 of the Indian Competition Act prohibitsInnovation forms the basis for the development. anticompetitive practices, but this prohibition does not restrictCOMPETITION LAW AND IPR: HISTORICAL PERSPECTIVE “the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights” which have been conferred underThe competition law of India was enacted after repelling the IPR laws like Copyright Act, 1957, Patents Act, 1970, theMonopolistic and Restrictive Policy Act of 1969 by the Raghavan Geographical Indications of Goods (Registration and Protection)Committee which has been reflected in Section 66 of the Act, 1999 (48 of 1999), The Designs Act, 2000 and the Semi-Competition law of India. The three main provisions of the said conductor Integrated Circuits Layout-Design Act, 2000Act has been reflected in the Section 3 , Section 4 and Section 5and 6 of the act stating “Prohibition of Anti Competitiveagreement” , “ Abuses of Dominant position” and “ ROLE OF JUDICIARY IN PROTECTING INTELLECTUALCombinations” respectively. The distinguishing feature of this PROPERTY RIGHTSparticular law is that abusive use of the IPRs is given no room for The conflict between Competition law and IPRs came beforeabusing the competition level in the market. Intellectual property Monopolistic and Restrictive Trade Practices Commission (MRTPprotection per se is not abusive but ironically, if it dominates over Commission, predecessor to the Competition Commission) inthe market it is only doing a legitimate job of its purpose, namelyto create to incentive for further innovation. However, when the case of Vallal Peruman and Others versus Godfrey Phillipscompanies refrain from licensing their intellectual property to India Limited the case stated that trademarks owner has thecompetitors, they undermine the basic tenets of competition law right to use the mark in a reasonable manner i.e. this right isas well as the spirit of intellectual property protection. subject to terms and conditions imposed at the time of grant of trademark. But it does not allow using the mark in any unreasonable way. In case, trademark owner abuses theNEXUS BETWEEN IPR AND COMPETITION LAW trademark by manipulation, distortion, contrivances etc., it willThe objective of the competition law involves two faces firstly attract the action of unfair trade practices of trademark.protect consumer welfare secondly the economic freedom of Competition policy of India, court states that “all forms of intellectual proper ty have the potential to violate themarket players. When a patent holder adopts any kind of anti- competition”.competitive practices, governments can adopt measures like thecompulsory licensing of such technologies which has been statedin the 31(b) of the WTO Trade Related Aspects of Intellectual Intellectual property is not differentiated from other tangible properties for the purpose of competition law. So CCI canProperty Law (TRIPs) Agreement. The various sections which adjudicate matters relating to IPRs. The competition commissionspeaks about forming a nexus with two laws are: can decide constitutional, legal and jurisdictional issues except the validity of statute under which tribunal is established. In theSection 3(5) of the Indian Competition Act which exempts case of Amir Khan Productions Private Limited v. Union ofreasonable use of such inventions from the purview ofcompetition law, India, the court ruled that competition commission has the power to deal with intellectual property cases. The court laid down , “competition commission has the power to deal with intellectual property cases. What can be contested before copyright board can also be contested before Competition

Commission Competition Act, 2002 has overriding effect over Thus the TRIPs Agreement provides a basic framework ofother legislations for the time being in force.” intellectual property protection as well as enforcement of anti- competitive licensing practices in intellectual property.The IPRsIn the same case, FICCI filed information against United and competition law objectives are consistent and compatibleProducers/Distributors Forum (UPDF) and others for market where the competition law intervention is required only whencartel in films against the Multiplexes. In order to raise their there is an abuse of monopoly rights. It is important to notice thatrevenue, UPDFhad refused to more than 100 countries havedeal with enacted competition laws andmultiplex at the time more than 159owners.The countries have IP laws, andfact that both enforcing authoritiesmultiplex must have a role in IP andbusiness is 100 competition law policy making,percent especially in developingdependent countries. Moreover theupon films conflict and the struggle overhence, making these two issues have createdthis deal to a hazardous situation in thecome into the pharmaceutical industry.Thus,category of there is a great need forrefusal to deal guidance in the legislativeand anti- framework to suit the naturecompetitive. of developing nationsThe UPDF and particularly for India.others holdalmost 100percent sharein Bollywoodfilm industry.UPDF hadbeen indulgedin limiting and controlling supply of films in the market by refusalto deal with Multiplexes which is the violation of Section 3(3) ofCompetition Act 2002. CCI prima facie found there isanticompetitive agreement and there is abuse of dominantposition also. So CCI directed Director General (DG) to inquireinto the matter. DG inquired into the matter and reported it tobe cartel. CCI issued a show cause notice. UPDF instead ofanswering to show-cause notice, the complainant approached theBombay High Court. UPDF contended that films are subject tocopyright protection.Therefore Copyright board has thejurisdiction to deal with matter. Furthermore, contended that forexclusive license, only remedy is compulsory license availableunder Copyright Act. So petitioner challenges the action taken bythe CCI on the ground of lack of jurisdiction.Though, the issuewas discussed earlier in Kingfisher v. Competition Commission ofIndia. Considering the importance of the matter, Bombay HighCourt discussed the matter in great detail.The court ruled Section3(5) does not restrict the right of any person to sue forinfringement of patent, copyright, trademark etc. All the defenceswhich can be raised before copyright board can also be raisedbefore CCI. Hence the competition law does not bar applicationof other laws.


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