LAW RESOURCE INDIA

LOK PAL CAMPAIGN: For a strong and effective Lokpal

Posted in JAN LOKPAL by NNLRJ INDIA on August 25, 2011
PRAKASH KARAT

PRAKASH KARAT

By PRAKASH KARAT IN THE HINDU

The Anna Hazare fast has seen an outpouring of support across the country. The government Lokpal Bill is unacceptable. A fresh Bill is needed for an effective Lokpal. There has been an outpouring of support all over the country in favour of the fast conducted by Anna Hazare for the Jan Lokpal Bill. The agitation has found support predominantly from the urban middle classes and a substantial section of youth belonging to the strata. There is no doubt that since the first hunger strike launched by Anna Hazare in April, the anti-corruption movement has gained momentum.

The attitude of the United Progressive Alliance government and its failure to tackle corruption, have fuelled widespread anger. First, the government is seen as being complicit in corruption. This has been the most corrupt government in the history of independent India. The paradox of a “clean” Prime Minister heading such a government has sunk into the consciousness of the urban middle classes.

The manner in which Ministers in the government defended the corrupt practices indulged in as a part of the 2G spectrum allocation, stating that there was zero loss of revenue for the government, confirmed the fears of many people that this government, steeped in corruption as it is, cannot take any meaningful action on this front. In all the cases – whether it be those related to the allocation of 2G spectrum or the conduct of the Commonwealth Games – agencies independent of the government, that is, the Supreme Court of India or, the Comptroller and Auditor General, were the ones that spurred the Central Bureau of Investigation into action to investigate and prosecute the guilty.

The problem has been compounded by the government’s act of introducing a Lokpal Bill that is weak and ineffective. The Prime Minister is excluded from the purview of the Lokpal. The method of appointment of the Lokpal will not make it an independent authority. A Lokpal set up under the provisions of this Bill would be unable to act independently. There are no provisions for the Lokpal to act against corporates and business enterprises that indulge in corrupt practices in relation to the government.

Secondly, the UPA government and the Congress leadership were in the dock for the manner in which Anna Hazare and his colleagues were arrested on the morning of August 16, even before the hunger strike was launched. The irony of a corrupt government putting an anti-corruption crusader in Tihar jail was not lost on the people. The brazen attack on the democratic rights of citizens to protest peacefully, isolated the government among the people and inside Parliament.

The ruling party decried the Hazare-led movement as an attack on Parliament and democratic institutions. Its leaders claimed that since the government has introduced a Bill in Parliament, any agitation against it is an attack on Parliament. This is specious reasoning. Political parties and citizens’ organisations have the right to oppose and agitate against any bill introduced in Parliament. The Left parties and the trade unions have opposed many bills which were anti-working class, and organised protest actions and struggles against them. Strikes have taken place against proposed legislation that seeks to liberalise the financial sector in the areas of insurance and banking.

Even the Congress opposed the Prevention of Terrorism Bill that was introduced in Parliament in 2002 by the Bharatiya Janata Party-led government. The Congress continued to oppose the legislation even after its enactment, and demanded its withdrawal.

Corruption has become a major issue and people are increasingly becoming conscious and determined to fight it. But there is need for a proper understanding of the causes for the rampant corruption that has affected all spheres of public life. The Communist Party of India (Marxist) has set out its understanding of the present malaise of corruption, the causes and the effects.

In the last two decades, with the advent of liberalisation and the neo-liberal policies, high-level corruption has become institutionalised. The neo-liberal regime has led to an exponential rise in corruption. Much of this corruption stems from the big business-ruling politician-bureaucratic nexus which has been established.

We have seen how, in the seven years of the UPA government and the earlier six years of the NDA government, policy-making has been suborned to serve the interests of big business; how privatisation and the loot of natural resources are facilitated by this nexus in operation; how the UPA government has pandered to big business – Indian and foreign – by putting in place policies and mechanisms to facilitate the transfer of resources such as land, minerals, natural gas and so on to business barons. The neo-liberal regime has affected the political system with big capital holding sway. Increasingly, politics is being converted into a business, and business is conducted through politics.

The fight against high-level corruption, therefore, requires a multi-pronged effort. There has to be an effective Lokpal authority; there has to be electoral reforms to curb money power for politics; there has to be a distinct mechanism to curb corruption in the higher judiciary through separate legislation; there has to be firm measures to unearth black money and crack down on those who have stashed away illegal money abroad in tax havens. Above all, the features of the neo-liberal regime, which encourage accumulation of capital through corrupt means and facilitate the loot of natural resources by big business, should be ended.

The main source of support for the Hazare-led movement is the urban middle class. Many of them were supporters of the liberalisation policies and the reforms ushered in by the Manmohan Singh government. Now plagued by corruption, they want a messiah to get rid of the corruption that constantly affects their daily life. They would like corruption to end, while maintaining the economic regime that has conferred certain benefits on them. Hence they are unable to see the organic link between the neo-liberal policies and the corruption that has been engendered.

The middle class propensity to be anti-political, to blame all politicians and to hold Parliament in contempt, are all on display in the Anna Hazare movement. The constant harping against all political parties and the setting of unilateral deadlines for Parliament to act have raised apprehensions about their intent and commitment to democratic values. This has only detracted from the rightness of the cause and the popular support it has evoked.

There is legitimate anger against the plutocracy that has come to dominate the political system. But this plutocracy and the corrupt nexus cannot be fought by targeting political parties and concentrating fire only on the petty corruption that citizens face in their daily lives. Given the amorphous nature of the movement that has gathered around Anna Hazare, the right-wing forces, including the corporate media, seek to support and direct the movement away from the focus on the fountainhead of corruption. There is a constant masking of the real causes of corruption in society. In a poll conducted by the Centre for the Study of Developing Societies, published recently in The Hindu, to a question ‘who is the most corrupt,’ 32 per cent of those surveyed said government employees were the most corrupt; 43 per cent said elected representatives were the most corrupt; and only 3 per cent thought businessmen and industrialists were the most corrupt. This is the dominant opinion among the middle classes.

In every major corruption scandal in the recent period, there was big business or corporates involved in the act of corrupting public servants – whether they were Ministers or civil servants. In the irregularities involved in the 2G spectrum allocation, the Commonwealth Games and the Krishna-Godavari basin gas contract, the hidden hand of big business exists. The government’s Lokpal Bill does not address this issue at all. The Jan Lokpal bill at least has clauses providing for the cancellation of contracts, and imposition of penalties on business found to have been illegally obtained by them. But the thrust of the anti-corruption movement, by and large, misses this main factor.

While a set of measures has to be taken to tackle the problem of corruption, right now the issue is the setting up of a strong Lokpal authority. The government’s Lokpal Bill has been rejected by large sections of the people; and it is not acceptable to most of the Opposition parties. In such a situation, the government should retract from its stand.

After eight days of the fast by Anna Hazare, the government has bowed down to public pressure and initiated talks with the representatives of the Hazare group. This is a welcome development. Hopefully, this will lead to a fresh or modified bill that can pave the way for an effective Lokpal.

(Prakash Karat is the general secretary of the Communist Party of India – Marxist.)

Source: http://www.thehindu.com/opinion/lead/article2393469.ece?homepage=true

Ambedkar’s way & Anna Hazare’s methods

Posted in JAN LOKPAL by NNLRJ INDIA on August 23, 2011
JAN LOKPAL BILL

JAN LOKPAL BILL

BY SUKHADEO THORAT IN THE HINDU

Following Dr. Ambedkar’s example, Team Anna should use constitutional methods and enhance people’s faith in them. Otherwise it will convey the message that only coercive and unconstitutional methods work.

A group of people, with placards showing Dr. B.R. Ambedkar, staged a demonstration in Delhi a few days ago against Anna Hazare‘s proposals on the Lokpal and the methods used by his team. More often than not, Dalits look with suspicion on any attempt to tamper with the Constitution. Team Anna has, however, suggested that its Lokpal bill would benefit Dalits more than anyone else. This led me to look at Dr. Ambedkar’s position as compared to the mode of agitation being deployed by Anna Hazare and his team.

In his last, visionary speech after the submission of the drafted Constitution on November 25, 1949, Dr. Ambedkar warned of three possible dangers to the new-born democracy. These related to social and economic inequalities, the use of unconstitutional methods, and hero-worship.

Dr. Ambedkar first pointed to the contradiction between equality in politics in the form of one-person-one-vote and the inequalities in social and economic life. He argued that for political democracy to succeed, it needed to be founded on the tissues and fibres of social and economic equality. He warned that we must remove this contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy. Although we in India are trying hard to reduce the vast inequalities that exist, the working of political democracy is already under heavy stress due to discontent in some parts of country.

Dr. Ambedkar’s second, and more important, warning in the present context related to the methods to achieve social and economic objectives. He urged the people to abandon bloody as well as coercive methods to bring about change. This means abandoning methods of civil disobedience, non-cooperation, coercive forms of satyagraha and fast. Referring to the use of these methods during the British period, Dr. Ambedkar observed: “When there was no way left for the constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” But using them since that period, in his view, was “nothing less than the Grammar of Anarchy.” He advocated that “the sooner they are abandoned, the better for us as a nation.”

Dr. Ambedkar’s third warning related to “hero worship.” He was immensely concerned over the political culture of “laying down the liberties at the feet of great men or to trust them with powers which enable them to subvert their institutions.” He believed that there is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. No man can be grateful at the cost of his honour, and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of the people of India than in the case of any other country, for in India, bhakti, or what may be called the path of devotion or hero-worship, plays a part in politics, unequalled in magnitude to the part it plays in the politics of any other country in the world, argued Dr. Ambedkar. He went on to add that bhakti or hero-worship in religion may be a road to the salvation of the soul, but in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

These views of Dr. Ambedkar also evolved through a much deeper commitment to constitutional methods and their use in the anti-untouchability movement during the 1920s and the 1930s. The 1920s and the 1930s saw a series of agitations led by Dr. Ambedkar to get public wells, tanks and Hindu temples opened to “untouchables.” In the present context, recalling two such incidents is very relevant, namely, the agitation for access to a water tank in Mahad, and for entry into the famous Kalaram temple in Nasik. In both cases, Dr. Ambedkar was up against violent high-caste Hindus, with the British sitting on the fence.

Dr. Ambedkar started the Mahad agitation in 1927, but the “untouchables” got access to the tank only in 1937 through a court order. The people of the high castes had managed a court order to ban the entry of “untouchables” into the tank on the grounds that it was a private tank. Dr. Ambedkar accepted the court order and discontinued a second march to the tank. But he fought through the courts and got justice in 1937, almost after 10 years. He did this using legal instruments and a peaceful mass movement, without the coercive means of fasts and hunger strikes.

Similarly, the agitation for entry into the Kalaram temple went on for four years, from 1930 to 1934. He discontinued the agitation in 1934 following opposition by priests, notwithstanding the support extended by Gandhiji. But he fought a legal battle, along with a peaceful agitation, for the next four years, and in 1939 ultimately secured entry to the temple for “untouchables.”

During the 1920s and the 1930s, Dr. Ambedkar combined mass mobilisation with legal methods in the anti-untouchability movement, but never allowed unconstitutional and coercive methods to take hold, despite instances of violent attack on “untouchables.” Once he came face to face with Gandhiji with the latter’s fast-unto-death and he had to compromise on the demand for a separate electorate with what is the present-day political reservation. Coercive means forced him to surrender the demand for a separate electorate, the consequences of which are visible today.

Team Anna should realise that the Indian Constitution provides ample opportunities for advocacy, through discussion and lobbying with parliamentary Standing Committees, Groups of Ministers, the Ministers concerned, the Prime Minister, courts, and above all through a peaceful agitation. With several political parties on their side, the possibility of reaching a middle ground is high. Experience with constitutional means shows that civil society activists, through their constant struggles, have persuaded the two successive United Progressive Alliance governments to acknowledge several basic rights and convert these into laws. The right to employment through the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the right to information, rights under the Forest Act, the right to education, and now the right to food, are some of the revolutionary measures that civil society has been able to accomplish through constitutional methods. It is an opportunity for Team Anna to use constitutional methods and enhance the faith of people in these; otherwise Team Anna will convey the message that only coercive and unconstitutional methods work.

As Dr. Ambedkar observed, due to certain aspects of Indian culture our people are highly vulnerable to hero-worship. How a yoga teacher could convert yoga devotees into religious devotees and finally into political supporters within a few years’ time is a classic example of what hero-worship and bhakti can do. Another religious preacher has threatened that he would use his religious followers for political end which he thinks does not require discussion with them as they follow him in whatever he tells them to do.

Anna and his team should recognise that for a new democracy like ours, which is operating within the framework of undemocratic relations based on the caste system, constitutional methods and social morality need to be cultivated and promoted with a purpose. The Lokpal Bill is too important a piece of legislation to be passed under threat and unreasonable deadlines. All its aspects need to be discussed with extreme care and with consensus among all sections. Dalits have begun to express concern about its implications for them. In a society where the anti-caste spirit and prejudices are present in abundance, they feel that given its proposed wide-ranging powers, it may be misused.

The Commissioner for Scheduled Castes reported about 11,469 complaints by Dalit government employees during the period from 2004 to 2010 that were linked to caste prejudice. Several thousand more complaints under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, such as giving “false or frivolous information to any public servant and thereby cause such public servant to use his lawful power to the injury or annoyance of member of SC/ST” are waiting for justice. Therefore, Dalits have begun to seek safeguards against the complaints emanating from caste prejudices in the Lokpal Bill. I think the government has rightly brought the bill for an open discussion before the Standing Committee that comprises MPs from all parties, so that the Bill is discussed by all sections in a peaceful milieu and not under duress and force.

Anna Hazare knows that the road to social change is a difficult one. He helped Dalits in a number of ways, including by repaying loans taken by Dalits with contributions from villagers. Yet he could not bring about fraternity between them — Dalits continue to stay in segregated localities in his village. Corruption, like untouchability, is deeply embedded in the social fabric of our society. Therefore, besides legislation its eradication requires changes through education and moral regeneration.

(Sukhadeo Thorat is Professor of Economics, Centre for the Study of Regional Development, Jawaharlal Nehru University. E-mail: thoratsukhadeo@yahoo.co.in)

http://www.thehindu.com/opinion/lead/article2384849.ece?homepage=true

Constiuent Assembly Debate -“If the elected fail the masses of India will through up men of resolve

Posted in CONSTITUTION, UNCATEGORIZED by NNLRJ INDIA on August 17, 2011
Rajendra_Prasad and R.L.Lakhina

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When the country needs men of character, they will be coming up and the masses will throw them up- Dr Rajendra Prasad while accepting the Constitution of India

Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provision in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution.

If they are lacking in these, the Constitution cannot help the country.

After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth.

It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance. I can say this from the experience of the struggle that we have had during the period of the freedom movement that new occasions throw up new men; not once but almost on every occasion when all leading men in the Congress were clapped into prison suddenly without having the time to leave instructions to others and even to make plans for carrying on their campaigns, people arose from amongst the masses who were able to continue and conduct the campaigns with intelligence, with initiative, with capacity for organization which nobody suspected they possessed.

I have no doubt that when the country needs men of character, they will be coming up and the masses will throw them up.

Let not those who have served in the past therefore rest on their oars, saying that they have done their part and now has come the time for them to enjoy the fruits of their labours. No such time comes to anyone who is really earnest about his work.

In India today I feel that the work that confronts us is even more difficult than the work which we had when we were engaged in the struggle. We did not have then any conflicting claims to reconcile, no loaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating.


‘Follow the money’

INDIAN EXPRESS

BLACK MONEY CASE

From the order of the same two judges, July 4, appointing a Special Investigation Team to probe the stashing of money in foreign banks

Money trail

“Follow the money” was the short and simple advice given by the secret informant within the American government to Bob Woodward, journalist with The Washington Post, in aid of his investigations of the Watergate break-in. As a medium of exchange, money is vital. However, increasing monetisation of most social transactions has been viewed as potentially problematic for the social order… The scrutiny and control of activities by the state in the public interest, as posited by modern constitutionalism, is substantially effected by the state “following the money.” In modern societies very little gets accomplished without transfer of money.

 Case

Large amounts of unaccounted monies, stashed away in banks located in jurisdictions that thrive on strong privacy laws protecting bearers of those accounts (from) scrutiny, raise worries. First and foremost, such large monies, stashed abroad and unaccounted, would suggest the necessity of suspecting that they have been generated in activities deemed unlawful. In addition, it would also lead to a natural suspicion that they have been transferred out of the country in order to evade payment of taxes, thereby depleting the capacity of the nation to undertake many tasks that are in public interest.

 Soft state

The quantum of such monies may be rough indicators of the weakness of the state, in terms of crime prevention and tax collection. The softer the state, the greater the likelihood that there is a nexus between the lawmaker, the lawkeeper, and the lawbreaker.

With globalisation, nation states are also confronted by the dark worlds of international arms dealers, drug peddlers, and various kinds of criminal networks, including networks of terror. They work in the interstices of the microstructures of financial transfers across the globe, and thrive in the lacunae, the gaps in law and of effort.

Increasingly, on account of a “greed is good” culture promoted by neoliberal ideologues, many countries face the situation where the model of capitalism that the state is compelled to institute, and the markets it spawns, are predatory in nature. The paradigm of governance that has emerged over the past three decades prioritises the market over any degree of control of it by the state. The role for the state is visualised by votaries of the neoliberal paradigm as that of a night-watchman…

 Slow probe

The amount of unaccounted monies, as alleged by the Government of India itself, is massive. The showcause notices were issued a substantial length of time ago. The named individuals were very much present in the country. Yet, for unknown, and possibly unknowable though easily surmisable, reasons, investigations proceeded at a laggardly pace. Even the named individuals had not yet been questioned with any seriousness.

The real point of controversy is as to whether there is a need to constitute a Special Investigation Team to be headed by a judge or two of this court to supervise the investigation. It was submitted to us that the Union of India has recently formed a High Level Committee under the aegis of the Department of Revenue in the Ministry of Finance… While it would appear, from the status reports submitted to this court, that the Enforcement Directorate has moved in some small measure, the actual facts are not comforting… In fact we are not convinced that the situation has changed to the extent that it ought to so as to accept that the investigation would now be conducted with the degree of seriousness that is warranted.

The fact remains that the Union of India has struggled in conducting a proper investigation into the affairs of Hassan Ali Khan and the Tapurias. While some individuals have been interrogated, many more are yet to be investigated. The formation of the HLC was a necessary step, and may even be characterised as a welcome step. Nevertheless, it is an insufficient step.

 We order:

(i) That the High Level Committee constituted by the Union of India be appointed with immediate effect as a Special Investigation Team;

(ii) That the SIT also include director, R&AW;

(iii) That it be headed by and include the following former judges of this court: Justice B P Jeevan Reddy as chairman and Justice M B Shah as vice-chairman…

Also…

Apparently, a former employee of a bank or banks in Liechtenstein secured the names of some 1,400 account holders, along with the particulars, and offered the information to various entities. The same was secured by Germany, which in turn offered the information regarding nationals and citizens of other countries to such countries. It is the contention of the petitioners that even though the Union of India was informed about the presence of the names of a large number of Indian citizens, it never made a serious attempt to secure such information and proceed to investigate such individuals.

We need to examine the claims of the Union of India as to whether it is proscribed by the double taxation agreement with Germany from disclosing such information. Further, we would also have to examine whether the Union of India can claim exemption from providing such information to the petitioners… We have perused the agreement with Germany. We are convinced that the agreement, by itself, does not proscribe the disclosure of the relevant documents and details…

The state has the duty, generally, to reveal all the facts and information in its possession to the court, and also provide the same to the petitioners.

One major constitutional issue and concern remains. The revelation of details of bank acounts of individuals, without establishment of prima facie grounds to accuse them of wrongdoing, would be a violation of their rights to privacy. Only after the state has been able to arrive at a prima facie conclusion of wrongdoing, would the rights of others in the nation to be informed enter the picture.

 We order that:

(i) The Union of India disclose to the petitioners all documents and information they have secured from Germany, in connection with the matters discussed above, subject to the conditions in (ii) below;

(ii) That the Union of India is exempted from revealing the names of those individuals… in respect of whom investigations are still in progress and no information or evidence of wrongdoing is yet available…

(iii) That the names of those individuals, in respect of whom investigations have been concluded and proceedings initiated, may be disclosed;

(iv) That the SIT constituted by this court shall take over the matter.

http://www.indianexpress.com/news/the-horror-the-horror/814344/0

A law that thwarts justice

Posted in GENDER, HINDU SUCCESSION by NNLRJ INDIA on June 27, 2011

Prabha Sridevan in THE HINDU

Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.

The family that had sent a young woman back to her parents after her husband’s death, surfaced when she died. There was a contest between her mother and the husband’s sister’s sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”

“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “ The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women‘s Rts. L. Rep. 175 (1982), adding that “women’s equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”

This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.

The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.

If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman’s horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”

Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father’s heirs, and any property she inherited from her husband or father-in-law will go to the husband’s heirs.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband’s heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts ( Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father ( Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).

In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities.

Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.

Justice Bhattacharjee’s criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man’s estate and the woman’s estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.

Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.

Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

http://www.hindu.com/2011/06/27/stories/2011062751711000.htm

Law Commission proposes legislation to curb ‘honour killings’

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on June 8, 2011

J. Venkatesan IN THE HINDU

The draft has been approved and is expected to be released shortly for comments

There must be a bar on assembly for discussing young persons marrying as per their choice

Village elders have no right to interfere with the life and liberty of such couples

 NEW DELHI: To tackle the menace of ‘honour killings‘ in some parts of the country and deal with illegal orders from by ‘khap panchayats,’ the Law Commission has proposed legislation to prosecute persons or a group involved in such endangering conduct and activities.

The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate R. Venkataramani, has been discussed and approved by the Commission, which is headed by Justice P. Venkatarama Reddi. It is expected to be released shortly for comments.

The Commission has turned down the demand for introducing a clause in Section 300 of the Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within the ambit of this provision. The addition of such a clause may create confusion and interpretational difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined the honour of the caste or community.”

The idea behind the provisions in the draft legislation is that there must be a threshold bar on congregation or assembly for discussing and condemning the conduct of young persons above the age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have no right to interfere with the life and liberty of such young couples and they cannot create a situation in which such couples are placed in a hostile environment in the village/locality concerned.

Under the proposed law, “the act of endangerment of life and liberty shall mean and include any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people of the locality concerned and (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality.”

“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the … intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between two persons of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned.”

It shall be presumed that any person or persons found to be part of the unlawful caste assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall be treated as an unlawful assembly and those present in it shall be punished with imprisonment for a period of not less than three years and extending up to five years and a fine of Rs.30,000.

The draft legislation says: “Any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions,” viz., they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.

Freedom of press and journalistic ethics – II

Posted in MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on June 4, 2011

Justice Markandey Katju   IN THE HINDU

India now has a disconnect between the mass media and mass reality. Often the media concentrate on some Potemkin villages where all is glamour and show business.

Underdeveloped countries like India are passing through a transitional stage, between a feudal-agricultural society and a modern-industrial society. This is a painful, agonising period. A study of the history of England of the 17th and 18th centuries and of France of the 18th and 19th centuries, shows that for them such periods of transition were full of turbulence, turmoil, revolutions, intellectual ferment, and social churning. It was only after going through this fire that modern society emerged in Europe. India is going through this fire. The barbaric ‘honour killings’ in parts of the country of young men and women of different castes or religion who get married or wish to get married, among other incidents, show how backward we still are — full of casteism and communalism.

India’s national aim must be to get over this transitional period as quickly as possible, reducing the inevitable agony. Our aim must be to make India a modern, powerful, industrial state. Only then will India be able to provide for the welfare of its people and get respect in the world community.

Today, the real world is cruel and harsh. It respects power, not poverty or weakness. When China and Japan were poor nations, their people were derisively labelled ‘yellow’ races by Western nations. Today nobody dares use such terms as they are strong industrial nations. Similarly, if we wish India to get respect in the comity of nations, we must make it highly industrialised and prosperous. For this, our patriotic, modern-minded intelligentsia must wage a powerful cultural struggle, that is, a struggle in the realm of ideas. This cultural struggle must be waged by combating feudal and backward ideas, for example, casteism and communalism, replacing them with modern, scientific ideas among the masses.

The media have an extremely important role to play in this cultural struggle. But are they performing this role?

No doubt, the media sometimes refer to farmer suicides in different States, the price rise, and so on, but these form only a small part of their coverage — maybe 5 to 10 per cent. Most of the coverage is given to cricket, film stars, astrology and disco-dancing.

Sadly, India now has a disconnect between the mass media and mass reality. Here are a few facts from a speech delivered by P. Sainath, Rural Affairs Editor of The Hindu and Magsaysay award winner, on September 6, 2007 in Parliament House in the Speaker’s Lecture Series.

•The mass reality in India (which has over 70 per cent of its people living in the rural areas), is that rural India is in the midst of the worst agrarian crisis in four decades. Millions of livelihoods in the rural areas have been damaged or destroyed in the last 15 years as a result of this crisis, because of the predatory commercialisation of the countryside and the reduction of all human values to exchange value. As a result, lakhs of farmers have committed suicide and millions of people have migrated, and are migrating, from the rural areas to the cities and towns in search of jobs that are not there. They have moved towards a status that is neither that of a ‘worker’ nor that of a ‘farmer.’ Many of them end up as domestic labourers, or even criminals. We have been pushed towards corporate farming, a process in which farming is taken out of the hands of the farmers and put in the hands of corporates. This process is not being achieved with guns, tanks, bulldozers or lathis. It is done by making farming unviable for the millions of small family farm-holders, due to the high cost of inputs such as seed, fertilizer and power, and uneconomical prices.

•India was ranked fourth in the list of countries with the most number of dollar billionaires, but 126th in human development. This means it is better to be a poor person in Bolivia (the poorest nation in South America) or Guatemala or Gabon rather than in India. Here, some 83.6 crore people (of a total of 110-120 crore) in India survive on less than Rs.20 a day.

•Eight Indian States in India are economically poorer than African states, said a recent Oxford University study. Life expectancy in India is lower than in Bolivia, Kazakhstan and Mongolia.

•According to the National Sample Survey Organisation, the average monthly per capita expenditure of the Indian farm household is Rs.503. Of that, some 55 per cent is spent on food, 18 per cent on fuel, clothing and footwear, leaving precious little to be spent on education or health.

•A report of the Food and Agriculture Organisation of the United Nations shows that between 1995-97 and 1999-2001, India added more newly hungry millions than the rest of the world taken together. The average rural family is consuming 100 kg less of food than it was consuming earlier. Indebtedness has doubled in the past decade. Cultivation costs have increased exorbitantly and farming incomes have collapsed, leading to wide-scale suicides by farmers.

•While there were 512 accredited journalists covering the Lakme India Fashion Week event, there were only six journalists to cover farmer suicides in Vidharbha. In that Fashion Week programme, the models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour’s flight from Nagpur in the Vidharbha region. Nobody told that story except one or two journalists, locally.

Is this a responsible way for the Indian media to function? Should the media turn a Nelson’s eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages’ where all is glamour and show business? Are not the Indian media behaving much like Queen Marie Antoinette, who famously said that if people had no bread, they should eat cake.

No doubt, sometimes the media mention farmers’ suicides, the rise in the price of essential commodities and so on, but such coverage is at most 5 to 10 per cent of the total. The bulk of the coverage goes to showing cricket, the life of film stars, pop music, fashion parades, astrology…

Some TV channels show cricket day in and day out. Some Roman emperor was reputed to have said: if you cannot give the people bread, give them the circus. This is precisely the approach of the Indian establishment. Keep the people involved in cricket so that they forget their economic and social plight. What is important is not price rise or unemployment or poverty or lack of housing or medicines. What is important is whether India has beaten New Zealand (or better still, Pakistan) in a cricket match, or whether Tendulkar or Yuvraj Singh has scored a century. Is this not sheer escapism?

To my mind, the role of the media in our country today must be to help the people in their struggle against poverty, unemployment and other social evils and to make India a modern, powerful, industrial state.

For this, scientific thinking should be promoted. Science alone is the means to solve this country’s problems. By science I do not mean physics, chemistry and biology alone. I mean the entire scientific outlook, which must be spread widely among our people. Our people must develop rational, logical and questioning minds, and abandon superstition and escapism. For this purpose the media can, and must, play a powerful role.

The nation is passing through a terrible socio-economic crisis. Artists, writers and mediapersons must start acting responsibly and help the people solve their problems. And this they can do by focussing on the real issues — which are basically economic — and not by trying to divert people’s attention to non-issues.

The Urdu poet Faiz wrote: Gulon mein rang bhare bade naubahaar chale/ Chale bhi aao ki gulshan ka kaarobaar chale. Urdu poetry often has an outer, superficial meaning, and an inner real meaning. The real meaning of this sher is that the objective situation in the country is ripe, and patriotic people to come forward to serve the country. (The word ‘gulshan’ ostensibly means garden, but in this sher, it really means the country.)

(Markandey Katju is a Judge of the Supreme Court of India. The first part of this article was published yesterday.)

http://www.hindu.com/2011/06/04/stories/2011060463961200.htm

Freedom of the press and journalistic ethics

Posted in CONSTITUTION, FUNDAMENTAL RIGHTS, MEDIA ISSUES by NNLRJ INDIA on June 3, 2011

Justice Markandey Katju  IN THE HINDU

Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.

Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press’ encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.

In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.

The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.

I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.

Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.

Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.

Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.

Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.

What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people’s fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine’s pamphlet ‘Common Sense’ during the American Revolution, or of the letters of Junius during the reign of the despotic George III.

The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.

What should be the media’s role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.

To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.

(Markandey Katju is a Judge of the Supreme Court of India. The second part of this article will follow.)

http://www.hindu.com/2011/06/03/stories/2011060363621400.htm

Dr. Moily Addresses Round Table in St. Petersburg on ‘Legal Security of Business Transactions, Investments and Financial Instruments-New Challenges of the Global Crisis’

Posted in UNCATEGORIZED by NNLRJ INDIA on May 20, 2011

Following is the text of the Speech of Dr. M.Veerappa Moily, Union Minster for Law and Justice, while addressing the Round Table on “Legal security of business transactions, investments and financial instruments-New Challenges of the Global Crisis” in St.Petersburg today :-

‘Globalization’ refers to the process of integration and convergence of economic financial, cultural and political systems and interests across the world by adopting a holistic approach. From an economic or commercial perspective, so as to understand international business, globalization may be defined as the increasing economic integration and interdependence of national economies across the world through a rapid rise in the cross-border movement of goods, services, technology and capital.

Since the global financial crisis disturbed the nations and turtled their financial position, the global financial crisis has become a ‘credit tsunami’.

INCIDENTS OF FINANCIAL CRISIS:

(i) Subprime crisis in the US and Euro zone debt crisis along with the global financial slowdown.
(ii) Collapse of Lehman brothers in September 2008 and thereafter the fall of entire wall-street.
(iii) Commodity-dependent economies are exposed to considerable external shocks stemming from price booms and busts in international commodity markets.
(iv) Many Asian countries have seen their stock markets suffer and currency value going on a downward trend. Asian products and services are also global, and slowdown in wealthy countries means increased chances of a slowdown in Asia and the risk of job losses and associated problems such as social unrest.
(v) A number of developed countries have seen several sectors struggling and asking for bailouts. We know even some countries have not been an exception to the bailout syndrome.

IMPACT OF GLOBAL FINANCIAL CRISIS ON INDIA:

Fortunately, India is the least hit by recession as far as internal financial disturbances are concerned and probably most important reason for this is that India’s 95% of debt is financed internally. Because of global recession, Indian economy which was projected to grow at approximately 9% is now expected to see a little slow down. However, now it has been projected to grow approximately at the rate of 9% by 2012. One of the reasons for this lowering of growth projections has reduced foreign direct investment inflows pursuant to global financial crisis.

India is the 7th largest and 2nd most populous and 4th largest economy in the world. A series of ambitious economic reforms aimed at deregulating the economy and stimulating foreign investment has moved India firmly in to the front runners of the rapidly growing Asia Pacific Region and unleashed the latent strength of a complex and rapidly changing nation. India’s time tested institutions offer foreign investors a transparent environment that guarantees the security of their long term investment. These include a free and vibrant press, an independent judiciary, a sophisticated state of art legal and accounting system and a user friendly intellectual infrastructure.

The Parliament has enacted the foreign Exchange Management Act, 1999 to replace the Foreign exchange Regulation Act, 1973. This Act came into force on the 1st day of June 2000. The object of the Act is to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India.

CREATION OF CIBIL:

India realizing the need of a credit information system in order to enable informed credit decisions and aid fact based risk management on the basis of the recommendations of the Working Group a Credit Information Bureau (India) Ltd., (CIBIL) was set up in January 2000 under the Companies Act, 1956 with equity participation from commercial banks, Financial Institutions (FIs) and Non Banking Finance Companies (NBFCs) registered with the Reserve Bank, making it a functional PPP initiative.

TAX RE-FORMS:

Since the onset of liberalization in India, tax structure of the country is also being rationalized keeping in view the national priorities and practices followed in other countries. A Foreign national working in India is generally taxed only on their Indian income and income received from sources outside India is not taxable unless it is received in India. Further, foreign national have the option of being taxed under the tax treaties that India may have signed with their country of residence and India has so far signed and notified 70 Bilateral Agreements for Avoidance of Double Taxation (DTAA) with 70 different countries. In order to have a comprehensive tax law to regulate the tax regime further “the Direct Tax Code” and the “Goods and service Tax law” have been proposed.

Today we have the system of investment treaties between member States governing multifarious foreign investment transactions taking place to and fro between the nationals of member states. Much before the investment treaty system in 1959, there was another system of investment protection which MNCs had virtually devised themselves for the protection of their investments, i.e. the contract system. Every foreign investment entry was accomplished through a contract, except where entry is made through a merger or acquisition.

Arbitration as a method of settling disputes was the greatest innovation of this system of foreign investment transactions. Arbitration under contract continues to be significant despite being overtaken in volume by arbitration of investment disputes under the treaties. It is interesting to note that MNCs, through private actors, are denied personality under international law.

There is an important pre-emptory norm of international law ‘Pacta Sunt Servanda’,i.e agreements and stipulations of the parties to a contract must be observed. The question has been debated numerous times whether this principle which applies to agreements between foreign states be extended to foreign investment agreements between a foreign state and a multinational corporation. Although many foreign scholars suggest that it should be extended but the suggestion has some theoretical defects. The principle is premised on the mutual surrender of sovereignty by member states entering into a treaty transaction which is missing in case of MNC. However, a cursory look at the long line of international jurisprudence demonstrates that State promises to foreign investors have been strongly presumptively enforceable as a matter of consistent international law and practice.

NEED TO REGUALTE FOREIGN INVESTEMNT:

The capital-importing States assert control over process of foreign investment as a potential strategy to contest norms at the international level by enacting legislation which exerts national control over the entry, establishment and operation of foreign investments. The aim of such legislation is to attract foreign investment into the State while ensuring that the investment is geared to the economic goals of the state and that the potential harmful effects on such goals are eliminated. Every state tries to do it at three levels namely Domestic, Bilateral and Multilateral. But the state sovereignty over natural resources and economic activities is subject to the principles of customary and treaty based international law.

INTERNATIONAL INVESTEMNTS TREATIES VIS-À-VIS INDIA:

At the outset, let me state that India has been a signatory to MIGA for several decades now. The Indian BIT/BIPA was initiated as part of Economic Reforms Programme started in 1991, with a view to increase the integration of Indian economy with the global economy by fostering inward and outward investment flows. The main objective of Indian (Bilateral Investment Treaty) BIT/(Bilateral Investment Promotion and Protection Agreement) BIPA is to promote and protect the interest of investors of either country in the Territory of the other country and such Agreements increase the comfort level and boost the confidence of investors by assuring a minimum standard of treatment on a non-discriminatory basis in all matters while providing for justifiability of disputes with the host country. The Government of India so far has signed BIPA’s with 75 countries till 31st March, 2009. In addition, the Government has also begun to conclude CECA (Comprehensive Economic Cooperation Agreements) that include both trade and investments.

Conflict of laws (or private international law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a “foreign” element such as a contract agreed by parties’ located in different countries such as United Kingdom and the United States. These rules determine the place or jurisdiction where a dispute may be filed and the applicability of law i.e. law of which state would govern the transaction.

THE COMMERCIAL DIVISION OF HIGH COURTS BILL, 2009:

The policies of the Government of India have changed radically from 1991, the year in which or economy was opened up to foreign investment in a big way. Privatization, liberalization and globalization have resulted in a big boost to our economy.

The Commercial Division in each of 21 High Courts shall follow Fast Track procedure for the disposal of cases. The said procedure is prescribed in the Bill itself. Power of execution of decree and orders passed by the Commercial Division are also proposed to be vested in the Commercial Division. Fast Track procedure would definitely curtail the time taken in disposal of such cases.

The commercial Division shall, within thirty days of the conclusion of argument, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise. A single judge sitting in the Commercial Division may hold one or more case management conferences.

There has been increasing trend in the commercial litigation which is taking most of the time of the existing court resulting in delays in justice to the common man whose cases are not taken up for years together. To ease the situation, other Government proposes to set up Commercial Courts within the High Courts.

INTRODUCTION OF THE REGULATION OF FACTOR (ASSIGNMENT OF RECEIVBALES) BILL, 2011:

In order to ensure prompt payments of money by buyers statutory and to regulate assignment of receivables by making provision for registration therefore and rights and obligations of parties to contract for assignment of receivable and for matters connected therewith or incidental thereto the “Regulation of Factor (Assignment of Receivables) Bill, 2011 has been introduced in the Parliament and is under process for consideration.

AMENDMENTS TO THE ARBITRATION AND CONCILIATION ACT, 1996:

The Arbitration and Conciliation Act, 1996 deals with law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. The Ministry of Law and Justice has initiated steps to bring comprehensive amendments in the Arbitration and Conciliation act, 1996 in order to make arbitration more popular, make India as a hub of international arbitration and overcome problems due to certain judgments of Supreme Court and High Courts.

ROLE OF INTERNATIONAL PRIVATE LAW IN PROVIDNG STABILITY FOR INTERNATIONAL DEALINGS:

Private International law has a dualistic character that ensures the following functions:

(i). balancing international consensus with domestic recognition and implementation,
(ii). Balancing sovereign actions with those of the private sector.

With globalization, commercial transactions are becoming more and more international. Subject such as the appropriate degree of harmonization of domestic laws, choice of law in commercial transactions, the proper scope of international arbitration and litigation, etc will inevitably increase its importance in the immediate future.

ROLE OF INTERNATIONAL INSTITUTIONS GUARANTEE THE SECURITY OF INVESTEMTNS:

The International institutions can guarantee the security of the investments:

– by assuring legal certainty and protecting the legitimate expectations of the foreign investors.
-by ensuring protection against unlawful expropriation.
-by observance of international minimum standards of treatment and ensuring fair and equitable treatment.

LACK OF UNIFORM ACCOUNTING STANDARDS:

The globalization of business is causing companies to become more reliant on markets around the world. As such, if all multinational companies apply the same set of accounting standards while creating their financial statements, the statements will be more transparent and will save costs for both investors and companies themselves. Cost saving and transparency are two goals of the process of harmonization of international accounting standards. The harmonization process has been successful so far, but there is one major flaw there is no global enforcement mechanism, which would provide more legitimacy to the process. Without an international agency, enforcement is left to each individual nation. Not only has this led to skepticism about the uniformity of enforcement, but it has also led to actual enforcement discrepancies.

CONCLUSION AND COMMENTS:

Although in the last four decades, national and international legal polices and rules concerning trade and investments have repeatedly changed, the investment and its varieties have also undergone substantial transformation in its magnitude and content. In the national laws and policies, the trends towards liberalization and increased protection have gathered strength and the controls and restriction have been relaxed in many countries. Non-discriminatory treatment after admission of investment either way of FDI or portfolio is becoming the rule rather than an exception. However so far no international investment related dispute has been raised against India and this glaringly speaks the effectiveness of the investment agreements concluded by India. But Law being a living organ has to grow in order to satisfy the needs of the fast changing society and to keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms, which would adequately deal with the new problems, which arise, in a highly industrialized economy. The rule of law is the foundation for success of democracy. Hence capacity building for evolving challenges of emerging areas in the legal world coupled with capacity building for enforcement, will have to get highest priority.

It is an admitted fact that Global Financial Crisis had an impact on majority of the States. Studies also reveal that in addition to the above discussed the other factors responsible for the severe financial crisis are attributable to lack of:

-transparency
-uniform accounting standards
-stringent securities protection law
-stringent legal provisions controlling the dealings of real-estate-transactions
-proper collateral security system
-uniformity in the BITs

Therefore the question today is not about the global financial crisis but is about making suitable enforcing legal mechanism both at the domestic level as well as at international level and to institutionalize the same to avoid any further credit tsunami. I hope and wish this platform will pave a way for that and each and every one who is present here will contribute for the same. I hope and wish this Regional Conference will highlight the pros and cons of the issue and will stimulate innovative ideas to boost cross border trade. I am confident that this entire initiative will also enable India to emerge as a preferred destination for international investments. The Government of India is now on a trajectory of fastest and inclusive growth and justice with a focus on quality. With these words I conclude and once again thank the organizers and each one of you for giving me this opportunity.

Government Officials will be held responsible for Honour Killings

19 April  2011/ PTI News

In CRIMINAL APPEAL NO._958__of 2011  Arumugam Servai Vs  State of Tamil Nadu  ( Respondent) The Bench of Justice Markandey  Katju and Justice Gyan Sudha Mishra  has passed a order on the Honour Killings being reported across India. The bench stated that    in   recent   years    `Khap   Panchayats’   (known   as  katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way  on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people.    We   are   of   the   opinion   that   this   is   wholly  illegal   and   has   to   be   ruthlessly stamped   out.   As  already   stated   in  Lata   Singh’s  case   (supra),   there   is  nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment.  Only in this way can we stamp out such acts of barbarism and feudal mentality.  Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

Hence,   we   direct   the   administrative   and   police   officials to   take   strong measures   to   prevent   such   atrocious  acts. If   any   such   incidents   happen,   apart   from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against  them departmentally if they do not (1) prevent  the incident  if it has not   already   occurred   but  they  have   knowledge   of   it   in   advance,   or   (2)   if   it   has occurred,   they   do   not   promptly   apprehend   the   culprits  and   others   involved   and institute criminal proceedings against them, as in our opinion they will be deemed to
be directly or indirectly accountable in this connection.

Copy   of   this   judgment   shall   be   sent   to   all Chief Secretaries,   Home Secretaries and Director Generals of Police in all States and Union Territories of India with the direction that it should be circulated to all officers up to the level of District Magistrates   and   S.S.P./S.P.   for   strict   compliance.   Copy   will   also   be   sent   to   the Registrar  Generals/Registrars  of all High Courts  who will  circulate it to all Hon’ble Judges of the Court.

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