VOLUME 1

AN UGLY FACE OF COMMUNAL POLITICS MUZAFFAR NAGAR RIOTS

[Vol 1/ Issue 1/ Dec 2014] [ISSN 2394-9295]

D.S. Verma

Retd. Addl. Commissioner Revenue Department

ABSTRACT

The Muzaffarnagar riots were an eye –opener for those people who make everything for granted. The lay in administration, trust deficit between the two communities and politicization of the issue were the main causes of these riots. The fact, that it was first time that riots took place in villages reminded us that something serious happened which was also dangerous for the generations to come. After the riots the ruling and non ruling parties indulged themselves in divisive and vote bank politics signifies that the politics in state was still played on caste, religion and on partisan basis.

As the elections to the Lok sabha was just round the corner, it was expected that the political parties would have behaved in a mature manner and contributed to diffuse the tension, but it happened otherwise. Further, the people in the villages had remained in peace, amity and harmony for generations but the occurrence of those riots even in villages put a serious question mark on the secular aspect of our democracy, which we proudly boast off.

Also, a straight and strong bureaucratic set up, awakened and alert civil society, free and impartial print and electronic media are the essential requirements for maintaining unity and integrity of the nation. The roles of all these factors were found lacking in the sorry state of affairs that happened in Muzaffarnagar.

Key words: Muzaffarnagar riots, eye opener, villages, caste, religion.

INTRODUCTION

The communal riots in District Muzaffarnagar, U.P. is a result of the casual and irresponsible approach of the District Administration and the Stat Government. The communal riots at Muzaffarnagar are being politicized to garner Muslim support in the coming elections. The facts are being distorted and the Jats are being projected as villains by the politicians. The Samajwadi ruling party was all out to woo the Muslims to their fold, which at the last phase boomeranged on it.

The lamps were lit for the self, but light slipped to the neighbour‘s house.

The jat community is primarily agriculturist, hardworking peaceful God fearing and karmyogi in their general conduct. The Jats do not nurture any fanatic fervour or religious bigotism. They are purely secular in their daily life and in their interpersonal relationship. They are miles away from ostentatious religious insignias, rituals or segregation on religious lines. In the rural areas of western U.P. there had been no communal riots since independence. It is a well known fact that no communal riots took place in Western U.P. between Jats and Muslims even in 1947when the entire country was burning with communal frenzy. The proximity and bhaichara between the Jats and Muslims had been traditional and exemplary and they live in peace and harmony. The muslim Jats popularly known as Mule Jatsand the Hindu Jats have common gotras and they are very much part of the kisan fraternity and they were the active participants in all kisan panchayats and other Farmers Andolans. In fact, in the year 1989 when a 22 years old Muslim girl namely Naima was abducted, then Jat farmers under the leadership of Ch.Mahendra Singh Tikait sat on Dharna for 40 days at P.S. Bhopa for the recovery of above mentioned Muslim girl. This famous agitation known as Bhopa Kand was called off on the intervention of the then Chief Minister of U.P. Mr. N.D.Tiwari.

Due to eveteasing an unfortunate incident took place on 27^th August, 2013 at village Kawal, Distt.Muzaffarnagar in which three persons namely Gaurav, Sachin and Shahnawaz were killed. Shahnawaz was severely injured by Gaurav and Sachin in the fight that took place between them on account of eveteasing. Before Sachin and Gaurav could escape, they were caught by Shahnawaz‘s family members and other Muslims.They were attacked with sharp knives, bricks and Atta chakki stones and they were beaten to their death. Their heads were crushed badly and both of them died on the spot. Shahnawaz was taken to the hospital and the doctors declared him, brought dead. The police was informed about the killings of three boys. The police from Jansat police station reached the site of killing in Kawal. The then District Magistrate Sh.Surender Singh along with Senior Superintendent of Police Ms. Manzil Saini, also arrived on the spot and enquired about the entire matter. The police searched Shahnawaz‘s house and neighbouring houses and found some people whose clotheswere blood stained. The police arrested seven persons and they were brought to Police Station Jansat. On the intervention of some influential Muslim leaders of Ruling Party from Muzaffarnagar and Lucknow, the District Magistrate Sh.Surender Singh and the Senior Superintendent of Police Ms. Manzil Saini were immediately transferred. The SHO, Police Station Jansat was also ordered by the above mentioned leaders to release the arrested accused persons of the murder of Gaurav and Sachin and not to register original FIR against them. The SHO, P.S. Jansat immediately released six of the seven arrested accused persons. Thereafter the SHO, P.S. Jansat registered a false FIR against the family members of deceased Gaurav and Sachin for the murder of Shahnawaz. Despite the proclamation of prohibitory orders u/s 144 Cr.P.C., thousands of Muslims assembled at Shahid Chowk at Muzaffarnagar on 30.08.2013 and the meeting was addressed by various muslim leaders of different political parties. In the above said meeting Qadir Rana BSP (M.P.), Noor Salim Rana BSP (MLA), Rashid Siddiqui (Samajwadi Party leader), Amir Alam (SP), Saeedujjama Congress (FormerM.P.) and other prominent Muslim leaders were present. The Local Administration and the police authorities did nothing to stop them from violating the prohibitory orders u/s 144 Cr.P.C. On the contrary the District Magistrate and SSP Muzaffarnagar attended that meeting on 30.08.2013 and accepted their representation. The District Magistrate even addressed the above said unlawful assembly. The Muslim leaders of various political parties delivered provocative speeches against the Jats in the above said meeting. Seeing the partial behaviour of the District Administration and police authorities of Muzaffarnagar, it became apparent to the Jats that the local administration was working under the pressue of the Muslim leaders of Ruling Party. Hence, the Jats decided to holda peaceful meeting on 31.08.2013 at Nagla Mandour to protest against the partiality of the District Administration. The Jats held a peaceful meeting at Nagla Mandour and requested the government and the local administration to stop the harassment of innocent Jats in the murder of Shahnawaz and to register the FIR against the persons accused in the murder of Gaurav

and Sachin. In that meeting the Jats also declared that if their demands were not met then a Mahapanchayat would be held at Nagla Mandour on 07.09.2013. The District Administration and police authorities of Muzaffarnagar did nothing to arrest the accused persons in the murder of Gaurav and Sachin and continued to harass the innocent members of jat community for the murder of Shahnawaz. As a result the Mahapanchayat washeld at Nagla Mandour on 07.09.2013. The Jats came to Nagla Mandour from the different districts and from different routes by the different modes of transportation. Most of the Jats from the villages came to Mahapanchayat intractor trollies. The first attack on the Jats was carried out by the Muslimsat village Basikalan while they were going to attend the Mahapanchayat at NaglaMandour on 07.09.2013 in their tractor trollies. Many persons sustained injuries due to pelting of stones and bricks from the house tops by the Muslimsat Basikalan. On arrival at Mahapanchayat the injured persons went to the stage and narrated the story. This aroused the fury and management of the stage became uncontrolable. The organisers and Sober elements were pushed to thebackground. Leaders of BJP and Bajrang Dal took over the charge of stage. They delivered infuriating speeches which surcharged the atmosphere and emotions. Fortunately, there was no incident of violence on the ground of Mahapanchayat.

At the end of Mahapanchayat, Jats started to return to their villages by tractor trollies. They were attacked by Muslims by fire arms, stones and bricks near village Jolly P.S. Bhopa. About 19 tractors and 24 trollies were burnt. Three persons, one each from villages Bhokarheri, Rahmatpur and Baseda were killed by Muslims in this pre-planned attack. People going on route Muzaffarnagar, Mansoorpur Purbaliyan Shahpur were attacked by Muslims of village purbaliyan. Four persons three from village Kakda, one fromVillage Soram both under P.S. Shahpur died in this attack. About 4 dozen Jats sustained injuries in this attack. Two persons were killed at village Mujhedaon road Muzaffarnagar Jansat Mirapur. About a dozen persons sustained injuries here. In addition to the above, three Hindus were killed at Muzaffarnagar.

Consequent to the attack on Jats at threeplaces, Muslims residing in villages Phugana, Kutba Kutbi, Lihsad, Lankh Bahawadi are said to have been attacked by bad elements. Some of their houses were set on fire and as per the news published in papers about 30-35 Muslims are said to have been killed. About 10 Muslims are said to be missing. Three persons out of these missing names were later found involved with the IndianMuzahiddin activities.

The District Administration failed to control the situation as the fire of animosity and revenge spread in rural areas. While Hindus found police as partisan, Muslims found them inefficacious. Hence, it became in evitable to call the Army in aid to civil Authorities. Silent war had started between the two communities. Muslims families not only from riot affected villages but also from other villages of majority population, were evacuated and Shifted to Camps established in Muslim majority towns/villages.

It is worth mentioning that the Secular Credential af Jat Community are proved by the fact, that no incident of violence against Muslims took place in the villages viz. Bhokarheri, Rahmatpur, Baseda, Soram and Kakda of Muzaffarnagar district, whose residents were killed in the communal violence on 07.09.2013 by the Muslims. In addition two persons, namely Virender Singh and Yogender Singh of villages Modkhurd and Mohamdpur Shikst, both under P.S. Bahsuma, district Meerut were also killed by Muslims at Mujhedaon 07.09.2013. About a dozen Jats sustained injuries in this attack. 80 bighasof sugarcane crop of villages Nawada, Kheda, Pali and Nahli under P.S. Sardhana district Meerut was burnt on 01.10.2013by Muslims. On night ¾ October 2013 five tubewells in village Chhur, P.S. Sardhanadistrict Meerut were completely destroyed. It is further stated that two Muslims belonging to village Niloha P.S. Mawana District Meerut were killed by miscreants. Jat Sabha Zila Meerut along with other jat activists held a meeting with Jats and Muslims of Niloha village. A peace committee of 11 persons from each community was constituted to establish peace and harmony in the village.As a result of this, peace has been established in the village and families who had left the village have since returned back. Further Sadbhavana meeting of Jats, Kissan Unions and Muslims was held in police lines at the instance of District Magistrate Meerut Mr. Navdeep Rinwa. These meetings went along way in establishing peace and harmony in Meerut district.

The storm of violence left many problems for both the communities. The Social Activists Groups from both the communities viz Jat Sabha, Zila Meerut, Ghaziabad and Bijnore and Zamiat E-Islami Hind under leadership of Mr. Shaifi Madni (secretary) and Mr. Alouddin (Flah Aam) Ahmed ofMeerut held meetings to proceed together to bring about rapprochement. The Zamai-E-IslamiHind people visited various camps and tried their best to persuade Muslims to return to their villages. They also tried to convince the camps management to impress upon the displaced persons there, to go back to their parental places. On the other hand, Jat Sabha zila Meerut constituted a team of about 20 persons under the leadership of Ch. Aman Singh to visit Jat populated villages and affected families of killed/injured persons. Accordingly, teams of Jats from Meerut visited all affected villages and persons to ascertain the actual loss of lives, properties and crops. It was found that innumerable named and unnamed FIRs have been lodged in different police stations against Jats. The number of FIRs against most of the persons range from 10 to 36, where the commission of offence is reported to have occurred within a span of 2-3 hours. False rape and loot cases have been registered. Where the reporting person denies the filing of the report. There was discrimination in providing compensation for the damage of Tubewells, crops, tractors-trollies and motor cycles. All the impartial officers were transferred to eastern U.P. Hence, it was decided by Jat Sabha Zila Meerut to file a writing the Hon‘ble Supreme Court with a prayer to have an impartial Inquiry and investigation and to put a stop on the excesses and high handedness on the partof the State Govt.

On the other hand, the aforesaid social activists team assured that if muslim families wish to return to their villages, Jat from the concerned village will come to the camps to take muslim families of their village with honour and ensure their safety and Security.To give a boost to the scheme of rehabitation, a meeting of Hindu-Muslim leaders in the presence of IG Meerut Zone Mr. Ashutosh Pandey and SSP Meerut was held at IMA Hall Meerut on27.11.2013. Further on 19.01.2014 a ―Sadhbhavana Sammelan- was held at Zila Panchayat Hall Muzaffarnagar at the instance of Zamait-E-Islami Hind (U.P.) and Uttrakhand. It was attended by Jats from Meerut, Bijnore and Muzaffarnagar.Officials of Jamait-E-Islami Hind viz Maulana Saiyed Zallaluddin Umri(President), Zaman Mohammad Ahmed (Secretary), Zanab Mohammad Asad Galib(President Nagar Palika Sardhana Meerut), Zanab Shaifi Madni and Zanab AlauddinAhmad etc. Another about 150 prominent Muslim leaders attended the meeting.Shri Udhav Ji Maharaj (Mandaleshwar, Prayag

Peeth Allahabad was the ChiefGuest. Representatives of Sikh Sabha Muzaffarnagar, President Arya PartinidhiU.P. Sabha and Rashtriya Adhyaksh Sanyukt Jat Arakshan Sangharsh Samiti Mr.H.P.S. Prihar also addressed the gathering. From the dispassionate analysis ofthe aforesaid facts, the following deductions can be safely drawn :

1. Firstly, the persons at the helm of affairs were partisan and administrators were lax and subdued. They could have conveniently averted this tragedy if impartial and strong action against the miscreants had been taken.―Why the hands which extinguish the lightsAt two occasions Administration failed miserably : (ii) On 07.09.2013 when the planned attacks were carried out on the unarmed people returning from Mahapanchayat.
   1. On 27^th Aug. 2013 when Sachin, Gaurav and Shahnawaz were killed aftermath eve teasing incident, and
   2. of the others city, are not chopped off
2. Secondly – Divisive polity has come to stay in our democratic system. Every section of the society is divided on the basis of castes, clans and religions and all the political parties try to use these divided groups as their vote banks in the name of their welfare. Peace and harmony amongst the people is in jeopardy and the integrity of the Nation is being compromised.
3. Thirdly – To bring the conditions to normalcy, security of both the communities is to be ensured and sincere efforts are needed to assuage the wounds and pain on both sides. The attitude of teaching lesson with vengeance by either side or by administration is creating hindrance. The displaced Muslims families are to be rehabilitated. They are to be taken back to their respective village with honour and assurance of their security. The conditions laid down in affidavits, given at the time of Sanction of rehabilitation grant of Rs. 5 lacs may be relaxed. Further, false cases of rapes and plunder be immediately closed. Impartial investigation in cases of arson, mischief and murder conducted and criminal proceedings be started only against the actual accused.

CONCLUSION

In this backdrop a straight and strong bureaucratic set up, awakened and alert civil society, free and impartial print and electronic media, are the essential requirements to save the Unity and Integrity of this country.

―Admittedly thousands can be rendered homeless, but to rehabilitate one is godly.

INDIA DEBATES ITS ENERGY SECURITY

[Vol 1/ Issue 1/ Dec 2014] [ISSN 2394-9295] Harshita Singh

Asstt. Prof.

Amity University, Noida (U.P) Email ID: hsingh5@amity.edu

ABSTRACT

Twenty First Century global realities have altered the concept of national security. While national security is a holistic concept, energy security is one of its major components.As far as India is concerned, energy security emanates from growing imbalance between the demand for energy and its supply from indigenous sources resulting in increased import dependence. The energy resources are limited and inadequate. According to the Basic Statistics on Indian Petroleum and Natural Gas,2001-2002, the proven reserve of crude oil is 732 million metric tons. The production is around 33 million metric tons, but the demand is around 107 million metric tons. Based on the present GDP growth rate the demand for crude oil will be 190million tons by 2011-12, which will result in 81% import dependence. With respect to natural gas, the demand will rise to 313 MMSCMD in 2010-12. The current demand is only 8% of the world average, which is likely to increase to20% by 2025 due to fuel substitution.

Need of the hour, therefore, is to acknowledge the important challenges to India‟s energy security, which are both internal and external in nature. Internally, India has a limited resource base, lacks adequate infrastructure and an integrated long term policy. The external challenge lies in getting a continuous supply of energy at reasonable prices as domestic production is low but the demand is high.

Keywords: National Security, Energy Security, Indian Petroleum and Natural Gas.

INTRODUCTION

With one of the world‘s fastest growing economies, energy security is one of India‘s overriding domestic concerns. India already faces a severe energy predicament. Our Prime Minister recently warned that the country has 10% gap between power supply and demand. Though India‘s economy is averaging over 8% growth in recent times, energy production is growing at a laggard 5% growth a year. Hence we have a gap of 3%. During peak hours, some regions saw the gap widen to 25%. Power he warned is the leading potential bottlenecks ‘for India‘s economic success. New Delhi‘s most recent review of energy policy says that if the economy merely maintains 8%growth by 2020, the country will need to increase its electricity production from its present 131,000 MW to as much as 900,000 MW. The World Energy Outlook Report published by International Energy Agency (IEA) projects that India‘s dependence on oil imports will grow to 91.6% by the year 2020. Studies have indicated that a sustained 5% rise in oil price over a year would slash India‘s GDP growth rate by 0.25% and raise inflation by 0.6%.

India is regarded as one of the highest energy sensitive economies in the world. In fact, energy intensity is a measure of energy required by an economy to produce one unit of GDP growth. As per the predictions of IEA, the energy intensity of the economy is substantially high. It is 2.88 times higher than that of any developed country. In practical terms, for producing the same quantity of output, the consumption of energy in India is almost three times than that of any developed country. In other words India consumes more oil per unit of output than mostother countries. The implications of these growing trends may be disastrous. The high level of energy consumption makes a country more vulnerable to economic shocks in addition to high oil prices create prohibitive economic costs in the medium term as it can erode the purchasing power and crowd outpublic resources into financing the mounting oil import bills. It will also affect the equilibrium of Balance of Payments (BoP). Global oil price fluctuations have a stagflation impact on the macro-economy of the oil importing country. It also slows the rate of economic growth, propels inflation and reduces economic output by acting as tax on consumption. The price shocks that accompany large disruptions in oil supply have a ripple effect throughout the economy. It gets reflected through a pure price effect and an economic effect. The price effect arises because petroleum products become more costly relative to other products and prices. On the other hand, with higher petroleum prices, incomes of individuals suffer a reduction in their purchasing power.

DEPENDENCE ON HYDROCARBONS

Coal will continue to fuel half of India‘s energy requirements, but consumption will increase fivefold by 2030 to over 2 billion metric tons annually. Oil figures will show a similar rise but, unlike coal, petroleum will almost be imported. Natural Gas, a sector long stunted by price controls and disinvestments, is expected to see a large expansion as market forces seep into this sector. In the coming decades two of India‘s greatest challenges will be how to grow while concurrently going for a worldwide push towards mitigating climate change and how to secure diversified sources of energy. Right now India‘s primary energy is not oil but coal. Coal accounts for 53% of India‘s energy consumption in ‘07 and the demands are growing dramatically. In ‘08 the production of coal was around 380 million tones. Over the next two decades the coal imports are projected to be tripled compared to the level of ‘07. The current reality in India is 44% of rural households amounting to 300 million people do not have access to electricity.

Another problem for India is the quality of coal available in the country. It has high ash content and there is lack of infrastructure in India to clean it. Coal is most polluting fuel in terms of GHG emissions and already it account for 65% of carbon dioxide emissions. In addition to carbon-dioxide, burning of coal produces black carbon. Black carbon is responsible for 1/5^thof observed global warming. Further, India‘s coal reserves are depleting fast. At the current usage rate India‘s reserve will be depleted in next 100 years. India cannot progress without burning coal but at the same time India will have to control its GHG emissions. The country will have to adopt clean coal technologies such as carbon capture sequestration—it is two step process where carbon-dioxide is captured and then it is pumped underground for safe storage. Right now this capturing part is underdeveloped and expensive. According to some estimates for India at least 20 billion dollars will be required in the next 25 years for development of clean coal technologies.

ENERGY MARKET OVER –REGULATED

A dizzying array of price controls, nationalized energy firms, cross-subsidies and taxes ensures a distorted and politicized energy sector. Natural Gas is being pushed towards liberalization by largest private Indian energy firm, Reliance Industries. This should eventually include the lifting of price controls on gas, paving the way to a huge infrastructure investment that a genuine gas market needs. A parliamentary bill to open the door to private coal firms has been waiting the right political opportunity for many years. Attempts to lift price controls on petroleum prices have floundered thanks to high international crude prices. However, reforms had helped ensure prices for industrial and commercial energy customers but still it is largely market based. A number of State Governments like West Bengal have shown that it is possible to make local power utilities profitable without raising electricity bills.

STRATEGY ADOPTED BY INDIA

India is moving towards a defacto market based energy security policy, similar to that practiced by US and most western countries. The strategy is that, as long as overall oil and gas supply exceeds the overall demand the market will ensure all customers are satisfied. India‘s Nationalized Oil Companies are so burdened with paying for domestic energy subsidies that they are in no position to purchase overseas energy assets in any significant degree. The Persian Gulf will remain India‘s primary source for both fuel and only a limited diversion to other places like Africa is possible. The Government is taking greater interest in the prospects of nuclear power in its future energy matrix. With Indo-US nuclear deal the P.M hopes that nuclear energy production will increase from around 35,000 MW to 60,000 MW in next 20 years. Even this will be only 5% to 10% of the projected energy demands. If the nuclear power is to play a major role, then the industry had to open up to the private sector. The other strategy for India is greater utilization of Natural Gas. India is fortunately placed closer to countries with huge gas reserves. The proposed gas pipeline like IPI, QPI, RKTAPI, MBI are extremely important for India both from the point of view of energy sector as well as for sustainable development. Switching over to a much more eco-friendly gas based energy use option will enable the country‘s economy to move away from high oil dependence. It will also be possible to fix gas prices and transportation tariff at predictable levels and not linked to highly fluctuating oil prices. The Government set upto provide energy security for the country by souring oil and gas from abroad. OVL is trying to bridge the gap between demand and supply in the country. It has established a strong foothold in hydrocarbon area spread over 15 properties in 13 countries (till 2010). In Oct 2005, OVL started getting crude oil from Sakhlain I in which India invested 2.77 million dollars. The total recoverable oil in Sakhlain I is 2.3 billion barrels and 1.71 trillion cubic feet of gas. OVL‘S share of production in Greater Nile Project in Sudan was started in 2003and is being refined at Mangalore refineries. OVL has a stake in Lay Tay gasfield in Vietnam as well as the Lad Do fields which started production in 2002.It has invested around 8 billion dollars outside India till now and recently CCEA authorized OVL to invest 8 million dollars in US energy major EXXON‘s Brazil project. After a series of setbacks in Aug ‘08, OVL managed to have couple of contracts in our favour but unfortunately we sign the contracts when the oil prices are on their peak and naturally these contracts over look the price today for eg. Imperial Energy Contract for 2.88 billion dollars.

Another great potential for India is the use of non­conventional energy sources. India‘s favorable location in tropical region as well as its geographical diversity ensures that there is scope for renewable energy utilization specially, solar, wind, tidal energy etc. Of these wind energy holds maximum immediate prospects because of comparatively small gestation period and smaller investment requirements.

NATIONAL SOLAR MISSION

Most important initiative by the Government in the field of non-conventional energy source is the launching of National Solar Mission. The potential amount of solar energy which can be extracted is estimated to be 13,000 MW based on the existing infrastructure alone. In this, India‘s tropical location is very helpful and states like Rajasthan and Gujarat has maximum potential. In ‘08 our Prime Minister announced the ambitious National Solar Mission to be implemented over the next decade. The first three years to be used to push and scale up the research to reduce the cost involved, increased domestic manufacturing and fund solar lightening with micro-finance. In the second phase, the concentration will be on the installation of solar water heaters in office buildings and large residences. In third phase, which India hopes will begin in 2017, solar energy is to achieve tariff parity with conventional power. Even if the plan does not fully adhere to this time table, increased solar energy should be an important addition to India‘s total energy output. The Clinton foundation is in talk with the Government to set up an integrated solar city (largest solar power project in Gujarat). Although a relatively diluted energy source, solar energy should be a component in helping India to quench its energy thirst in a way which is environmentally responsible.

AUGMENTING NATURAL GAS SUPPLY

There is huge, insatiate demand for natural gas. In addition to giving impetus for domestic production and acquisition of interest in fields abroad, efforts to import gas through pipelines and in the form of liquefied natural gas (LNG) from surplus countries were also made. Though the imports through pipeline are being pursued from sources in the east and west of the country, the LNG import project made significant progress with First Import Terminal at Dahej in Gujarat (5 million tons) to receive LNG from Qatar on course for commissioning by the first quarter of 2004. The project is promoted by BPCL, ONGC, GAIL (India) and IOC through Petronet LNG. Another important terminal has come up at Kochi (2.5million tons). A 2.5 MMT import terminal is constructed by Shell (India) at Hazara in Gujarat. It was operationalized in 2004. Thus the security of adequate supplies of natural gas is within sight together with significant discoveries of gas in India and acquisition of interests in fields like Sakhlain, Vietnam Project and a block in Myanmar

PROBLEMS IN INDIA’S ENERGY DIPLOMACY

The success of India‘s energy diplomacy has been limited because of two main factors. In more developed oil markets it has brought India into direct conflict with leading MNC‘s and the policies of Western Governments. We have made little progress in acquiring rights in Saudi Oil Industry though Saudi Arabia is the largest supplier of crude in India. Instead Indian companies are pursuing opportunities in the region of the margins of global energy markets. (Burma, Sudan, Libya, Iran, Russia etc) But in these markets OVL is facing a stiff competition from China‘s National Petroleum Corporation (CNPC), which is much larger and much more active. These competitive pressures have pushed the Indian companies further towards the margin like Equador, Ivory Coast etc.

Other problem which is faced in the Energy diplomacy in the domestic sector includes the large bureaucratic red tape surrounding Indian PSUs which is ultimately hampering the progress (we lost stake in Sudan and Angola). Successive Indian Governments have exploited PSUs energy companies to fulfill their political mandate and to ease on their fiscal difficulties. In recent years ONGC and IOC were forced to declare were high dividends and this has disappeared into public treasury.

NEED OF THE HOUR

A comprehensive policy change is needed. The domestic market should be opened up and multiple players should be encouraged for competition. There should be adoption of rational principles for energy pricing, establishment of credible energy pricing regulatory framework and decentralized mechanisms for energy conservation. The most important step to improve the energy security will be to diversify the sources. The diversification of sources involves mainly three processes: (a) to enhance exploration efforts within the country; (b) to pursue upstream investments overseas; and (c) to look for alternative sources.

ON EXPLORATION

In the field of exploration, India can learn an important lesson from China, which prefers to acquire what has already been developed, instead of exploring and then developing fields as pursued by Japan. One policy lacuna here is that foreign firms are not yet allowed to set up refineries. Given the highly vertically integrated nature of the industry, this constraint may dissuade all oil majors from India. However any such modification in policy should not lead to the emergence of the monopoly.

ON STRATEGIC TIES

India must intensify its options for the strategic tie up. The recent visit to India of the Venezuelan President and the assurance given by him seems quite significant. In order to reduce dependence on OPEC, India must give importance to Russia. Russia, after OPEC is the largest supplier of oil and this alternative source option needs to be explored in depth. Given the historical relationship between the two countries, there should not be any big problem except that other countries like the US and Japan too is negotiating with Russia to access that rich source. India and China must begin to diversify their supply of energy sources or start joint bidding of the projects.

ON STOCKPILING

Stockpiling or maintaining reserves protects against unexpected disruptions of supplies. The US has the largest stockpile and this makes them super power. But stockpile is not very feasible because any sharp fall in prices will cause huge losses to oil companies at the national level while stockpiling looks attractive, it has an opportunity cost of keeping precious foreign exchange locked in oil stocks.

Moreover, still, this is considered a small price to pay if energy is the main concern.

ON DEMAND SIDE

The demand side options can be divided into two categories— conservation in energy use and developing alternative energy sources. Alternatives to hydrocarbons like hybrid technology, fuel cell, bio diesel, advanced composites and light weight steel construction must be explored to create a viable option for sustainable growth. In nutshell, a combination of all measures at varying degrees can produce better results and enable us to survive in future.

A LOOK AT POWER CRISIS

The key to solving India‘s power crisis lies in four areas: First, rapidly adding more generating capacity across the country. Second, due to bad governance, transmission and distribution losses are 32% of the installed

generating capacity compared to the global average of 10%.Third, reforming coal mining sector to ensure steady fuel supply to thermal plants. Four, financing bankrupt State electricity Boards who do not have sufficient funds so as to maintain their equipment—– a primary cause of unscheduled power shortage. Nuclear power accounts for 3.7% of India‘s generating capacity and after signing of Indo­US nuclear deal, it accounts for 7.5% of the total generating capacity (by2030). Tough audits of power utilities can reduce T&D losses from 32% to25%, saving nearly 14,000 MW daily, which is approximately half of India‘s power shortage (32,000 MW). Also India should look for off-shore coal supplies in Australia, Indonesia etc. Captive coal shipment from foreign countries can really be an asset as India does not possess a high quality coal.

REALITY CHECK

India is presently stated to maintain its energy profile which is dominated by coal and petroleum well into the first half of the century. The only two energy sources with the potential to structurally change India‘s energy profile are natural gas and nuclear power. For these shifts to happen, however major domestic energy reforms and bold external political decisions are required. It is noticeable that such decisions are advancing most dramatically in the nuclear sector, in part because they are twinned with larger geo-political developments.

REFERENCES

1. Daniel Yergin; The Quest: Energy, Security and the Remaking of the Modern World; Penguin Books; Vol. I; Page 105­06.
2. Howard Geller; Energy Revolution: Policies for a Sustainable Future; Island Press; Page­205.
3. Robert Bent, Lyod Orr, Randall Baker; Energy: Science, policy and Pursuit of Sustainability;Island Press; Page­ 345.
4. Jan.H.Kaicki; Energy and Security: Towards a new Foreign Policy; Woodrow Wilson Press; Page 123.
5. Brenda Shaffer; Energy Politics; University of Pennsylvania Press; Vol­II; Page­234.
6. Kurt M Campbell; The Global Politics of Energy; The Apsen Institute; Page 219.
7. Michael Brower; Coal Energy; Renewable Solutions to environmental Problems; The MIT Press; Page 187-188.
8. J.F Maxwell, J.G McGowan; Wind Energy Explained; Wiley Publications; Page­89

HOW MUCH FEDERAL IS OUR CONSTITUTION?

[Vol 1/ Issue 1/ Dec 2014] [ISSN 2394-9295]

Shanti Swaroop (Retd.) Addl. Commissioner

Commercial Tax

Email ID: shantiswaroop51@gmail.com

ABSTRACT

The Indian Constitution is basically federal in form and is marked by the traditions characteristics of a federal system, namely, supremacy of the constitution, division of powers between the Union and the State Governments, existence of an independent judiciary and a rigid procedure for the amendment of the constitution. It established a duly polity, with clearly defined spheres of authority between the union and the states, to be exercised in fields assigned to them respectively.

There is an independent judiciary to determine issues between the Union and the States, to be exercised between one State and another. An amendment in the respective jurisdiction of the Union and the States can be brought about only by invoking a special procedure in parliament and ratification by a majority of states. A well-defined fiscal autonomy has been provided by including power to legislate and realise several taxes in state List to seventh schedule. True, the Indian Constitution exhibits centralizing tendency in several of its provisions, e.g., the adoption of a lengthy concurrent list, the power of Parliament to reorganise the political structure of the Country, supremacy of Parliament over State Legislature if there is a direct conflict between their respective jurisdictions, vesting of the residuary legislative powers in Parliament and powers of Governor to reserve Bills for consideration of Preside of the Republic. In certain circumstances, the Union is empowered to supersede the authority of the State on to exercise powers otherwise vested in States. But such diversions from the federal principle do not altogether change the basic federal character of our constitution as the same are purposely included to meet the exigencies and are qualified and circumscribed by certain conditions. Moreover their use is occasional and judicious.

Keywords: Parliament, Federal Principle, Judiciary, Constitution, State list, Seventh Schedule, Concurrent list.

INTRODUCTION

The basic question arises as to whether the Indian Constitution adheres to the principle of federal supremacy, that is, is it a truly federal in nature. The opinions of different scholars are divided on this issue with their own reasons. According to Whear, the Constitution of India is a quasi-federal and not strictly federal. This view of that federation involved that the general and the regional government should each, with a sphere, be co-ordinate and independent. Jennings has characterized it as a ―federation with a strong centralizing tendency. Austin described it as a co­operative federation. A few scholars, however, accept it as a federal constitution.

It is pertinent to see here as to how the judicial view it. In contest between Centre and States the court has shown it strong predilection of a strong Centres and has, consequently, underplayed the federal aspects of the constitution. The Courts understandably adopted this strategy to counter the exaggerated claims of the States regarding their position, status and powers vis-à-vis the Centre. In State of Rajasthan V. Union of India[1], BEG, C.J., Sought to judge the Indian Federation by the yardstick propounded by WHEARE and characterized the Constitution as more unitary than federal and having appearance of a federal structure. He observed.

In a sense, therefore, the Indian Union is federal. But the extent of federation in it is largely watered down by the need of progress and development of a country which has to be nationally integrated. Politically and economically co­ordinated and socially, intellectually and spiritually uplifted.

There observations were made to justify the exercise of a Central powers under Art. 356. In S.R.Bommai V. Union of India [2] several judges have characterised the Indian federation in different ways. AHMADI, J. described the Indian Constitution, following KC WHEARE, as quasi­federal ‘because ―it is a mixture of the federal and unitary elements, leaning more towards the later‘. But the other judges have expressed a more balance view. Justice SAWANT had observed.

Democracy and federalism are essential features of our Constitution and are a part of its basic structure.

Jeevan Reddy, J., has observed:

“The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States do not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the power reserved to the States.”

Federation in India is not a matter of administrative convenience, but one of principle. While discussing the principle of federal supremacy it will be pertinent to discuss it with respect to Constitution of other countries also. The US Constitution has been regarded as the epitome of the classical federation. Historically looking, the US Constitution came into being as a result of the voluntary compact among the pre-existing States which conceded rather limited powers to the Centre. A similar process occurred in Australia. In course of time, however, things changed. The power of the Centre expanded phenomenally the correspondingly the power of States shrunk. This has been achieved without any amendment of the Constitution, but through ingenious legislative devices and judicial activism as well as judicial tolerance. The Centre‘s vast financial resources have led to emergence of the system of grants­in­aid; centripetal forces have been generated and the Centre has become very powerful. The Canadian Constitution, to start with, definitely laid an accent on the Centre. In course of time, however, the Privy Council, by its process of interpretation weakened the centre and exalted the Provinces. Therefore, the Provinces in Canada have greater freedom of action that the Units in other federations. The Australian Constitution although characterized judicially as a true federation, as in the beginning but during the course of time, has moved towards centralization.

It is thus clear from the above that all the older federations have also exhibited centralising and centripetal tendencies and the constituent unit do not enjoy a co-equal status with the Centre. During the last several decades, an inevitable trend the world over has been strengthening of the Central Government. Undoubtedly, for some very good indigenous reasons, the accent of the Indian Constitution is on the Centre which has been made more powerful vis-à-vis the States. But merely because the Centre enjoys predominance over the States to some extent, the Indian Constitution does not cease to be federal. Federal form of government has no fixed connotations. No two federal Constitution are alike. Each federal government has its own distinct character. Each is a culmination of certain historical processes. One basic feature of each federation however is that there is a division of powers between the Centre and the regional units by the Constitution itself. If the essence of federalism is the existence of units and a Centre, with a division of functions between them by the sanction of the Constitution, then these elements are presented in India. In normal times, the States in India have a large amount of autonomy and independence of action. The Indian federal scheme seeks to reconcile the imperatives of a strong Centre with the need for State Autonomy.

FEDERAL SUPREMACY IN INDIAN CONSTITUTION

Article 245 provides that the Parliament may make law for whole or any part of the territory of India whereas the State Legislature within their competence may make laws for the whole or part of the State. Art. 246 talks about the three lists in Seventh Schedule to the Constitution List I (Union list) List II (State List) and List III (Concurrent List). Its clause (1) provides that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I notwithstanding anything contained in clause (2) and (3). Clause (2) provides that Parliament, notwithstanding anything contained in clause (3), and State Legislature subject to clause (1) also, have power to make laws with respect to any of the matters enumerated in List III, i.e. concurrent list. Clause (3) provides that subject to clause (1) and (2), the Legislature of any States has exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in List II

i.e. the State List.

The States have a full-fledged Parliamentary form of government with substantial powers and exclusive subjects as enumerated in List II to legislate upon. Article 168 provides for such Government and Article 196 to 200 lays down the procedure to make legislations. In view of these provisions, at no time the States may be regarded as delegated or agents of the Centre. They subsist not at the sufferance of the Centre but derive their sanction and powers from the same Constitution from which the centre draws its sanctions and powers. An independent judiciary acts as an umpire between the Centre and the States. The process of amending the Constitution is not unilateral so far as the federal portion is concerned and at least half the States must agree before a proposed amendment can become effective. Article 368 provides the strict procedure for amendment of entrenched provisions as they are called.

Within the spheres assigned to the States by the Constitution, the State legislature has plenary power. No fetter of limitation can be read on the legislative powers of a State Legislature outside the Constitution. The States have independent and substantial source of revenue arising out of field of taxation enumerated in State List in which State has power to Legislate and also from Concurrent list. On the whole the Indian Union is never as closely knit as a unitary polity, nor is it loose as confederation.

There arises some disputes regarding the legislative powers on subjects enumerated in the concurrent list. Here clause (2) as well as Art. 154 gives the overriding powers to Parliament but exclusive of subjects enumerated in List II. On disputes arising out of such jurisdiction of Centre and/or States the Courts while deciding the matter base their judgements on the doctrine of pith and substance. The courts also see that no colourable legislation have been resorted to. Sometimes the residuary powers of Parliament to Legislate in matters which are not enumerated in List II & III including making of tax laws on such subject as given in Art 248 is taken as against the principle of federation. I don‘t find anything wrong and against the principle of federal supremacy because in such case centre is not encroaching upon the power of state legislature.

Another provision which is discussed as against the principle of federal supremacy is that of Art 3, i.e. formation of new States and alteration of areas, boundaries or names of existing States. True the parliament has power to re-organise the States but here also the States are to be consulted and, further India being a Union of States, the States have to exist as component units. The existence of several inter State boundary disputes for long, as between Mysore and Maharashtra, or Punjab and Haryana, prove that Parliament does not act unilaterally in such matters but only after consensus has been reached between the contending parties themselves. In actual practise today, the power to re organise the States is proving to be a source of embarrassment rather than of strength to the Central Government. Recently by passing a resolution proposing the division of State of U.P. in four States and sending it to Centre to make an amendment in the Schedule I to the Constitution, the BSP government of U.P. is playing political card to gain favour of electorates in coming assembly elections. Then, there is a provision relating to the appointment of the Governor by the Centre under Art 155. But here a convention has grown to consult the State Chief Minister.

There are the provisions in the Constitution requiring in some cases Central assent to State legislation. Art 200 and 201 are in the Constitution to that affect. But whatever the letter of the Constitution, in practise, by and large, Central assent is accorded to State legislation as a formality and there are not many instances of the Centre vetoing the State legislation. The one conspicuous example of this has been that of the Kerala Education Bill, over which public sentiment in the State ran high, but here also the Centre obtained the advisory opinion of the Supreme Court before remitting it back to the State legislature for suitable amendments in the light of court‘s opinion. The Central financial support to the States, as already pointed out, is provided largely under the Constitution and through the Finance Commission, an independent body, and this does not compromise State autonomy. The aid given by the Centre to the States for fulfilment of the plans is on the advice of the Planning Commission and the national Development Council in which all the States are represented. Further, provisions of federal grants-in-aid to the units are now a common feature of every federation and India is no exception to this trend.

The emergency provisions of the Constitution have at times been held as constituting a major deviation from pure federation. There provisions are designed for temporary use only; by their nature they cannot be of normal occurrence. Art 352 is to be invoked only when its need is demonstrable, and this is much more so now after the 44^th Amendment 1978. Further, in an emergency, the behaviour of each federal constitution is very different from that in peace time. Art 356 and 357 is meant to be used only when constitutional machinery is not functioning properly in a State, and this is an exceptional, not a normal situation. In the case of SR. Bommai V. Union of India [3] the Supreme Court has spelled out a few restrictions on the innovation of Art

1. Further the composition of two houses is presently such that it is not possible to invoke Art 356 in relation to a State unless there is national consensus to do so. On the whole the Central powers has weakened in this respect.

Then comes Art. 252 which introduces a kind of flexibility in the distribution of powers, the States come into picture as the Centre cannot take over the State matter without their co-operation and initiative. Only under Art 249, the Centre acts unilaterally, but it is for an extremely short period and in national interest. It is also a fact that this provision has been used sparingly.

STUDIES IN CENTRE STATE RELATIONS

In the beginning the centralising tendencies were accentuated apart from the constitutional provisions because of the fact that one national political party held that sway both at the Centre and in the States. But now the State government belongs to different and mostly regional parties. This monopoly of power of the congress party was broken in 1967. Within a last few years a significant change has occurred in the complexion of the Central Government itself. The Central Government today is not constituted by a single all India Political party; it is now a coalition of several political parties, national as well as regional parties. Accordingly the policies evolved by the Central Government are the product of the balance of the national and regional aspirations and perceptions.

Demands have been raised from time to time for re-ordering of the Indian federation. Seeing this the matrix of Centre State relationship was considered in the Administrative Reforms Commission. In its report issued in 1969 the Commission came to the conclusion that the basic constitutional fabric of ours is very sound and must remain intact. Further, in the opinion of the Commission no Constitutional amendment is necessary for ensuring proper and harmonious relations between the Centre and the States, in as much as the provisions of the Constitution governing Centre State relations are adequate for the purpose of meeting any situation or resolving any problems that may arise in this field. The commission rightly observed that the Constitution was flexible enough to ensure its successful working irrespective of whichever party may be in power, provided those who are in the power mean to work it and not to wreck it. The government of India agreed with this view of the commission.

In 1983 in response to an insistent demand to review the Centre State relations, the Central government appointed the Sarkaria Commission under the chairmanship of R.S.SARKARIA, a retired judge of the Supreme Court. The terms of reference were to examine and review the working of the existing arrangements between the Union & States in regard to powers, functions and responsibilities in all sphered and recommended such change or other measures as may be appropriate keeping in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the units and integrity of the country which is of paramount importance for promoting the welfare of the people.

The commission presented its report in 1988. In its report while the commission suggested some adjustments in the Centre State relationship in several ways, it did not make any suggestion for any fundamental change

in the structure of the constitutional provisions relating to federation. In this connection, the following observation of the Sarkaria Commission may be taken note of:

“The primary lesson of India‘s history is that, in this vast country only that polity or system can endure and protect its unity, integrity and sovereignty against external aggression and internal disruption, which ensures a strong Centre with paramount powers, accommodating, at the same time, its traditional diversities. This lesson of history did not go unnoticed by the framers of Constitution. Being aware that notwithstanding the common cultural heritage without political cohesion, the country would disintegrate under pressure of fissiparous forces. They accorded the highest priority to insurance of the unity and integrity of the country.”

Thus considering the whole of the constitutional process not only the letter of the Constitution but the practise and conventions that have grown there under the Indian Constitution can justiably be called federal the principle of federal supremacy has evidently been followed.

REFERENCES

• 1. Jain, M.P., Indian Constitutional Law, Lexis Nexus, 6^thEdition, 2013.2. Bakshi, P.M., The Constitution of India, Universal Law Publisher, 2013 Edition.3. Nicholas., The Constitution of India.4. Sarkaria Commission Report, 19885. All India Reporter, 19776. All India Reporter, 1994

2. AIR 1977 SC 1361

3. AIR 1994 SC 1918

4. AIR 1994 SC 1918

PROSTITUTION OR SURROGACY: THE MYTH

[Volume 1, Issue 1][ISSN 2394-9295]

AKSHAT SWAROOP SHIVANI RASTOGI

8thSemester 8th Semester

Amity Law School, Centre-II Amity Law School, Noida

akshatswaroop1@gmail.com shivani_rastogi25@yahoo.com

ABSTRACT

Prostitution is an act or practice of providing sexual services to another in return for payments, whereas Surrogacy is a method of reproduction whereby a woman agrees to carry a pregnancy and give birth as a substitute to the contracted parties. In India prostitution itself is not illegal but the surrounding activities are. The Immoral Trafficking (Preventions) Act 1956 does not criminalize prostitution or prostitute per se. Similarly commercial surrogacy is legal in India but is still unregulated. The biggest question that still triggers the brain cells of any person is whether surrogacy is equivalent to prostitution? There is no definite answer to this query. Certain aspects of surrogacy make it akin to prostitution, yet certain make them poles apart. Surrogacy, like prostitution, is said to be a payment of fee for the use of body. Coercion and exploitation may be present in some forms of prostitution but neither is present in surrogacy. In surrogacy the women exercises her right of choice but doesn‟t so in the case of prostitution. This can further be justified by stating a simple point of difference that when a surrogate is hired she is passed through a proper screening test whereas the same is not true for a prostitution. Also women engaging in prostitution may be exploited due to her extreme poverty but the same cannot be vouched for surrogates. Hence when it comes to the use of women‟s body both prostitution and surrogacy can be used as synonyms but tactically they are different.

Key words: Prostitution, Surrogacy, Immoral Trafficking (Preventions) Act 1956.

INTRODUCTION

With her tiny legs and arms held close to her angelic body and sparks of hope hidden underneath tender eyelids, she smiles with a pleasant thought of entering a world that‘s alien to her. From the comfort of her mother‘s cozy womb, she will now have to embark upon a perilous journey…and there‘s no escaping.

As this little angel grows up expecting the world to treat her with respect and love, she comes across perturbing issues in life – gender bias, eveteasing, domestic abuse and so on and so forth. With adolescence, come a number of demands – some self created and some put forward by the world. While some cope with societal pressure and accept themselves as they are, some go beyond what is socially acceptable to transform into an

eye candy ‘with least embarrassment of ridiculing their own existence and the institution of womanhood. The

woman in her gladly accepts the disgrace of being termed as a sex object and doesn‘t mind being one, for the fittest alone survives. And it‘s a man‘s world after all!

“In childhood, a female must be subject to her father, in youth to her husband, when her lord is dead, to her sons, a woman must never be independent.” Manu Said

Does the statement speak the truth of the past and present society or not? Not only this, husband is a lord to his wife this shows the mindset of that time, that a wife is like a servant, not a better half of a man/husband. Domination of man was there and presently same being followed. In fact women started losing the respected positions with the change from matriarchy to patriarchy. Since that time onwards women started becoming a victim of slavery and molestation. Women became a commodity as monogamy was accepted rather started in that society. Women underwent drastic changes just to be socially accepted and appreciated but instead ended up being exploited by men.

SURROGACY

The roots of surrogacy can be traced long back in Indian history. The world‘s second and India‘s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born in Kolkata on Oct. 3, 1978. Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant for giving birth to a child for others to raise. She may be the child‘s genetic mother (the more traditional form of surrogacy) or she may be implanted with an unrelated embryo. Having another woman bear a child for a couple to raises usually with the male half of the couple as the genetic father is referred to in antiquity. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them. The word

―surrogate, is rooted in Latin ―Subrogare (to substitute), which means ―appointed to act in the place of.[1]

A surrogate mother is a substitute mother. Surrogacy is a method of reproduction whereby a woman agrees to carry a pregnancy and give birth as a substitute to the contracted parties. There are several kinds of surrogacy like Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way. In other words, this is in effect a free surrogacy. Whereas, commercial surrogacy is an option in which intending parent offers a financial incentive to secure a willing surrogate. Commercial surrogacy is a controversial method of conception because people, governments and religious groups have questioned the ethics of involving money in a child‘s birth. There can be several reasons behind surrogate pregnancy. For instance, intended parents may arrange a surrogate pregnancy because a woman who intends to be parent is infertile or unable to carry a pregnancy to term, e.g., woman with hysterectomy, uterine malformation or with a history of recurrent abortions or any medical illness making her pregnancy a risk to her own health.[2]

A female intending to be a parent may also be fertile and healthy, but unwilling to undergo pregnancy. The agencies making arrangement for surrogacy for the intended parents often help them to manage the complex medical and legal aspects involved in process.[3]

The concept of surrogacy in India is not new. Commercial surrogacy or ―Womb for rent, is a growing business in India. In India, English speaking environment and cheaper services attract the willing clients.

Future projections of surrogacy practice range from opportunity to exploitation – from rural women in India uplifted out of poverty to a futuristic nightmare of developing country baby farm. In case of surrogacy in India, it is hard to tell that whether these women are exercising their own personal rights or whether they are forced to become surrogate mothers due to their mother­in­law‘s or husband‘s desire to fulfill material and financial needs.[4]

Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue of that similarity; it should be disallowed on moral grounds. Surrogacy contracts are dehumanizing and alienating since they deny the legitimacy of the surrogate‘s perspective on her pregnancy. Surrogate mother tries to avoid developing a special bond with the child in her and views the pregnancy as merely a way to earn the much needed money. The payment for bodily services dehumanizes the surrogate mother and exploits her reproductive organs and capability for personal gains of the wealthy.

Surrogacy allows women to exercise their right of choice and their right to procreate. They are given the opportunity to make a large enough sum of money to buy better homes or provide an education for their children. For women that hire surrogate mothers, surrogacy steers away the view that a women‘s role in society is to bear children. Surrogacy allows symmetry between both partners who both donate their gametes since the male generally acts as a passive partner to the resulting pregnancy and delivery. Women in politics or in the work force can now hire a surrogate mother, rather than taking time off from work. It allows infertile women an opportunity to have a child. Prohibiting surrogacy would ―violate women‘s self­determination and would infringe on the commissioning parties ‘right to procreate’.[5]

Although gender equality seems to improve for women of higher status that are able to afford surrogate mothers, the fear is that surrogacy will exploit the poor. It is unclear that poorer women will voluntarily lease their bodies for reproductive ends. One primary concern is that contract pregnancy commodifies both women‘s labor and children in ways that undermine the autonomy and dignity of women and the love parents owe their children.

Prevalence of surrogacy in India is hard to predict as there are no exact figures available and prevalence is also dependent on specialized centers that cater to surrogacy as an option to couples that have no other way of getting a baby of their own.

However, the success rate of surrogacy is almost 45% with fresh embryos and 25% with frozen embryos.

The package for surrogacy in India almost costs 50% less as compared to other countries and can vary between Rs 8,00,000 to 15,00,000 approximately.

The surrogacy package price estimate above, covers doctor fees, legal fees, surrogate work up, antenatal care, delivery charges, surrogate compensation, egg donor, drugs and consumables, & IVF costs.[6]

TYPES OF SURROGACY

1. Surrogacy: Surrogacy is a method of reproduction whereby a woman (referred to as surrogate) agrees to carry a pregnancy and give birth as a substitute for the contracted party/ies. Surrogacy may be Natural (traditional / Straight) or Gestational.
2. Natural (Traditional/ Straight) Surrogacy: In traditional surrogacy the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner and thus the child that results is genetically related to the Surrogate mother. The child may be conceived via sexual intercourse, home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination), which is performed at a fertility clinic. Sperm from the male partner of the commissioning couple‘ may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the commissioning couple ‘are both females or where the child is commissioned by a single woman.’
3. Gestational Surrogacy: In gestational surrogacy, a surrogate is only a carrier/female host and is not genetically or biologically related to the child. The Surrogate is implanted with an embryo that is not her own, and becomes pregnant with a child to which she is not the biological mother. After birth, the surrogate relinquishes the child to the biological mother and/or father to raise, or to the adoptive parent(s) (in which case, the embryo would have been a donated embryo). The surrogate mother may be called a gestational carrier.
4. Commercial Surrogacy: Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save or borrow in order to complete their dream of being parents. This procedure is legal in several countries including India. Commercial surrogacy is also known as wombs for rent, outsourced pregnancies ‘or baby farms’.
5. Altruistic Surrogacy: Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, accommodation, diet and other related expenses).[7]

PROSTUTION

Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including ―john . Prostitution is one of the branches of the sex industry. The legal status of prostitution varies from country to country, from being a punishable crime to a regulated profession. Estimates place the annual revenue generated from the global prostitution industry to be over $100billion.[8]

Prostitution is sometimes referred to as ―the world‘s oldest profession.

Prostitution occurs in a variety of forms. Brothels are establishments specifically dedicated to prostitution. In escort prostitution, the act may take place at the customer‘s residence or hotel room (referred to as out-call), or at the escort‘s residence or in a hotel room rented for the occasion by the escort (called in­call). Another form is street prostitution. Sex tourism refers to travelling, typically from developed to under-developed nations, to engage in sexual activity with prostitutes. Sex trafficking, one type of human trafficking is defined as using coercion or force to transport an unwilling person into prostitution or other sexual exploitation.

The rights of sex workers have always been a contentious debate all over the world. There is no specific law to regulate prostitution or ban it altogether. The bill to amend the Immoral Trafficking (Prevention) Act was moved in 2006 by the ministry of women and child development headed by Renuka Chowdhury. Now the government of India has proposed a new law, under which (i) soliciting will no longer be a crime, (ii) there will be no eviction of sex workers, (iii) clients of sex workers could land in jail and face penalty of upto Rs

50,000, (iv) living off earnings of sex workers is illegal, (v) anybody who rents place to sex workers will be arrested and will be penalized for Rs 10,000. The proposed bill will be taken up in the next session of the Parliament. Meanwhile, the National AIDS Control Organization (NACO) has criticized the amendment saying that the Centre‘s plan to penalize the sex workers‘ clients as a move to curb the prostitution would in no way help, but would only pushes it underground. The current law penalizes the sex worker as an offender (and not her clients) who is a victim herself. In our country, nearly 80 per cent of prostitutes are in such profession mainly due to poverty, tricked by someone close to them, trafficking, etc. There has been a great emphasis on decriminalizing prostitution. In a country where sex is highly stigmatized, should prostitution be legalized?[9]

In most of the research done, it indicates that the majority of sex workers in India work as prostitutes due to lacking resources to support themselves or their children. Most do not choose this profession but out of necessity, often after the breakup of a marriage or after being disowned and thrown out of their homes by their families. The children of sex workers are much more likely to get involved in this kind of work as well. Almost 5,000 prosecutions have been recorded so far under the Bonded Labour System (Abolition) Act of 1976.

Tribal Kolta women and girls from Garhwal hills are compelled to become prostitutes to rescue their family from debt bondage. Poverty stricken young girls from Bengal and Nepal are lured with promises of attractive jobs and marriage. The agents came to know about the existing condition in the areas of U. P. Tehri, Garhwal, Dehradun etc. The local Rajputs used to keep the men as animals and exploit their wives, sisters and daughters too. The agents were successful in convincing these women well and hence brought them to Delhi and Agra and sold them to the brothels there.[10]

TYPES OF PROSTUTION

Prostitution can be broken down into four categories:

1. Forced Prostitution: The first category, forced prostitution, is an international problem. People have been known to entice women from developing countries to leave their homes for well paying jobs in restaurants or nightclubs in an industrialized nation. Once they leave, however, their passports are taken and they live in the custody of their captors and are forced to prostitute themselves. They often do not speak the language of the country they have been brought to and are subject to violent attacks by their captors.
2. Prostitution due to extreme poverty: Women who are prostitutes or become prostitutes due to extreme poverty and prostitution is the best way for them to survive. Although poverty is essentially compelling them to be prostitutes because they may have no other alternative.
3. Prostitution as the best alternative amongst a very small range of choices: It includes women who are prostitutes not because it is the profession of their choice, but because a life of prostitution appears to be the best alternative in a spectrum of very few choices based on their economic situation. They can engage in prostitution and make a fair amount of money or they can take a lowpaying job. Such women engage in prostitution because, amongst their choices, this seems to be the best alternative.
4. Prostitution as their profession of choice: The fourth and final category comprises women who engage in prostitution as their profession of choice. This means that women who have many choices, including higher education and professional career options, select prostitution because, on balance, they earn the most money for the least effort, or find the profession to be enjoyable.

LEGAL PROVISIONS

Prostitution is not a criminal offense in India. However soliciting for prostitution and prostitution in any public place are illegal. Prostitution is the use of one‘s body for sexual services such as oral sex or sexual intercourse in return for payment. It is defined as ―the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind.

Prostitution Vaguely Defined

The definition of prostitution in the Indian law is vague and ambiguous. The main statute dealing with prostitution or sex work in India is the Immoral Traffic (Prevention) Act 1956, the amended version of the Suppression of Immoral Traffic in Women and Girls Act 1956.[11] The act came into force on 26th January 1987. The purpose of the law is to limit and abolish prostitution in India by gradually criminalizing various aspects of sex work.[12]

The law does not refer to the practice of selling one‘s own sexual service as ―prostitution . So the act, as of now, does not criminalize prostitution per se, but it intends to punish acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring. A sex worker can legally practice her profession inside a house but cannot solicit clients on the streets. What this essentially means is that a woman is free to use her body for material gains. But a brothel – a house or room – shared by two or more sex workers is illegal. Brothels normally consist of several rooms or chambers, with grilled windows, where women are locked up.

Any adult who knowingly lives on the earnings of the prostitution of any other person shall be punished. If any adult is proved to be living with a prostitute in aiding her prostitution, it shall be presumed that such person is knowingly living on the earnings of prostitution of another person.

The law penalizes those prostitutes who solicit customers by words or gesture or willful exposure of her body. This can be punished with imprisonment of up to six months and/or fine of up to Rs. 500. The persons such as pimps and procurers soliciting on behalf of a commercial sex worker in a public place can be similarly punished. But this law is being used illegally to harass prostitutes charging wrong things on them. Any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution is guilty of trafficking.[13]

The act provides for the appointment of a special police officer for investigating offences with inter-state ramifications. Police can enter and search any premises on suspicion. The women who are resented by the police during raids will be questioned only by women police officers and if none is available they can be interrogated only in the presence of a female representative of a recognized welfare organization. To make a search or to conduct a raid, the police officer has to be accompanied by at least two police women.

The punishment for procuring, inducing or taking away persons for prostitution is a minimum of three years and a maximum of seven years of rigorous imprisonment. Forcible detention for prostitution can also be

punished with imprisonment for seven years to a life term. The law provides for engaging special police officers, non-official advisory bodies and police officers to stop trafficking and to establish special courts to deal with cases under the act. It also provides for establishment of protective homes for rescued girls who can stay there for not exceeding three years. The law does not provide for punishing the client. All offences are cognizable under the Act.[14]

No Concept of Child Prostitution Exists Now

Child Prostitution, as per Indian laws as existed before the enactment of the Criminal Law (amendment) Act 2013, was the practice whereby a child hires out his or her body for sexual activities in return for remuneration or any other form of consideration.

Child prostitution referred to the prostitution by a minor, or person under the legal age of maturity.

Children are generally not expected to be able to make an informed choice to prostitute themselves. Under the law there were three categories of victim children, minors and majors.

[Children: Children are those up to 16 years.

Minors: Minors are those between the age of 16 to 18 years. Majors: Majors are those who are above 18 years.]

The punishment for offences committed against the three categories had much differences depending on the category to which the victim belonged to. The offences against children and minors were dealt with more severely than those against majors.

The Section five of the act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life or a term which may extend to ten year and also a maximum fine of one lakh rupees. The Criminal Law (amendment) Act 2013enhanced the age of consent from 16 to 18 and hence the concept of child prostitution no longer exists now.[15]

India is emerging as a leader in international surrogacy and a sought after destination in surrogacy- related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK.

Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji‘s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is still pending and is expected to come in force somewhere in the next coming year. The law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.

International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, giving due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted it‘s report with the relevant suggestion:

The Law Commission of India has submitted the 228th Report on ―NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND

OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother should be protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only. [16] The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2011 with the passing of the Assisted Reproductive Technology Bill aiming to regulate the surrogacy business.[17]

INTERNATIONAL PERSPECTIVE

Laws differ widely from one country to another. In England, commercial surrogacy arrangements are not legal and are prohibited by the surrogacy arrangement act 1985. A surrogate mother still maintains the legal right for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.[18]

Status of surrogacy in USA

In USA, the surrogacy and its attendant‘s legal issues fall under state jurisdiction and it differs from state to state. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them and some penalize commercial surrogacy. In Canada, the Assisted Human Reproduction Act permits only altruistic surrogacy; surrogate mothers may be reimbursed for approved expenses, but payment of any other consideration or fee is illegal.

Status of surrogacy in Australia

In Australia, all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts Act 1993) altruistic surrogacy has been recognized as legal. However, in all states arranging commercial surrogacy is a criminal offense.

Status of surrogacy in South Africa

The South Africa Children‘s Act of 2005 enabled the ―commissioning parents and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty.

Status of surrogacy in Asian Countries. In Japan, the Science Council of Japan proposed a ban on surrogacy and doctors, agents and clients will be punished for commercial surrogacy arrangements. In Saudi, Arabia religious authorities do not allow the use of surrogate mothers. In China, Ministry of Health banned surrogacy in 2001. Despite this regulation it is reported that illegal surrogacy ―black market is still flourishing in China. Anxious about such situation strict legislation has been suggested by the political parties.

PROSTUTION:INTERNATIONAL SCENARIO

The laws on prostitution vary considerably around the world. They can vary from total prohibition of both the sale and purchase of sexual services, bans on either, regulation to varying extent of some or all aspects, to minimal regulation or restriction of any activity. Even when the sale or purchase is legal, prohibiting some or all of the activities necessary to work such as communicating between worker and client (soliciting), working from premises (brothel or bawdy-house), and involvement of third parties (managers, drivers, security) produces a de facto prohibition.[19]

Status of Prostitution in African Countries

Prostitution is illegal in the majority of African countries. Nevertheless, it is common, driven by the widespread poverty in many sub-Saharan African countries, and is one of the drivers for the prevalence of HIV/AIDS in Africa. Social breakdown and poverty caused by civil war in several African countries has caused further increases in the rate of prostitution.

BEGUM SAMRU OF SARDHANA: AN ICONIC FIGURE

[Vol 1/ Issue 1/ Dec 2014] [ISSN 2394-9295] Dr. Tarun Pratap Yadav

Asstt. Professor

Amity University, Noida (U.P) Email ID: tarun.pratap@yahoo.com

ABSTRACT

The period between 1818-1836 A.D was markedas the golden age of Meerutdivision due to peace and prosperity, which reached its zenith during the ruleof Begam Samru. The Begum made changes in Revenue administration, Police andPrison administration, military innovations as well as improving thesocio-economic conditions of the people in her jagir and maintaining law andorder in a countryside where jungle raj was once the order of the day. Begumrealized that the true glory of king/queen is not determined by the physicalextent of his dominions but upon the moral progress which he/she could secure to his people.

Begum tried to help the cultivators and introduce such means which might increase the produce of the land. Bridges and roads were constructed and efforts were made to provide irrigation facilities to the farmers of her jagirs. Takkavi loans were distributed to the needycultivators. There was also exemption of revenue, in case of calamity. TheBegum herself toured the countryside frequently, so that she could personallycome in contact of her people and know their grievances.

Key words: Golden Age, BegumSamru, Takkavi Loans, Sardhana, Jagirs.

INTRODUCTION

Begum Samru‘s real name was Fazrana(Pondicherry Records. Bussy in a letter of March 3, 1784 to De Castries) and shewas born in or about 1750-51[1]at Kutana, 30 miles North-West of Meerut. She was a Saiyyidini[2]and her father Luft Ali Khan was a nobleman, whose family from the unsettledstate of time had fallen into distress[3].Luft Ali Khan[4]married twice and Fazrana was his offspring by his second wife. When six yearold lost her father, her mother, along with Fazrana, left Kutana to Avadh so asto avoid the cruelties of her step son and in the course of their wanderingreached Delhi in 1760[5].

As both, mother and daughter were penniless; Fazrana joined the companion of nauchnies[6],for earning a livelihood. She herself was trained for dancing but fate decreed that she should make other people dance instead of being herself obliged todance for their amusement[7].She came into contact with General Walter Reinhard Samru in or about in the endof year 1765 at Bharatpur and was united to him by all the forms considered necessary by persons of her persuasion when married to men another[8],in this way Fazrana passed into the harem of Samru Sahib and became his lifepartner[9].When, where and how this marriage took place was a subject of controversy. After the death of General Samru in 1778, she inherited the jagir of Sardhanaand decided to permanently settle there.

On the whole Begam jagir lay in Gangetic Doaband stretched form Muzaffarnagar to Aligarh including within it the areas ofthe parganas of Sardhana, Karnal, Budhana, Barnawa, Baraut, Kutana, Tappal

andJewar[10].The principal pargana of this jagir and seat of administration was Sardhana. All these pargana contained 332 villages[11].Besides these parganas she had some trans-Yamuna estates, two of which she claimed as her altamgha or royal grants in perpetuity. Among her property inthis region may be mentioned the pargana of Badshahpur alias Jharsa, consistingof about 70 villages distant about 14 miles from Delhi. Butgone, a village inpargana Sonipat and Mauza of Bhoghpura Shah Ganj and a garden in SubahAkbarabad (Agra), together with the garden in neighbourhood of Deigh, were alsoheld by her as personal property.[12]Nine villages‘ viz. Garhee and Ca, formally part of jagir of Her Highness BalaBai situated in the parganas of Barnawa and Budhana, belonged to Begam Samruand were in her possession. Daulat Rao Sindhia[13]granted her the Pahasupargana which consisted of fifty four villages.

Though Begam called herself a feudal soverign[14],the British Government did not give her the title. Her jagir was an assignmentfor the payment of troops[15]and the entire holdings at the time of Begam‘s death depended upon the will ofthe British Government. But at the time when Begam was entrusted with itsa dministration, the condition was deplorable. After Aurangzeb, administration went from bad to worse. Constant decay of the Mughal Empire led to the rise ofmilitary state resulting in the lack of good governance. Oppression, poverty and financial ruin were prevalent and the nominal lieutenants of the Mughal Emperor, Shah Alam, were fighting for their personal interest. Everywhere there was chaos and disorder. Helpless farmers were oppressed, looted and pillaged[16].I twas in this scenario that Begam provided a rule which was in unmatched in the area in and around Delhi.

POLICE AND PRISON ADMINISTRATION

Under this the whole jagir was divided into eight parganas and the village was its unit. Chaudharies, qanungoes, zamindars,lamberdars were to pay fix revenues[17]and to maintain law and order. Village panchayats or Caste panchayats decided the cases and Begam herself dealt with cases where previous decisions were not acceptable to parties. Criminals were punished severely and were put in jail.They were sentenced to imprisonment for life and various terms of imprisonment were given. After her death, 132 prisoners were found in Sardhana jail[18].

MILITARY ADMINISTRATION

The strength of her army was 4246 in 1836. It consisted of six battalions, the bodyguard, irregular cavalry and artillery(Infantry—2946, Bodyguards—266, Cavalry—245, Artillery—789)[19].These battalions were well armed, equipped and led by a fine body of men. Th earmy was organized on the European model and its payment was regular. Adventurers of all nations were equally welcomed in her army. George Thomas was an Irish, Levaisseau was French and Solari was an Italian[20].Pension rolls showed that the regulars consisted of Hindustanis. She took recruits from different communities too. It was the Muslim community which formed the bulk of the army but communalism and localism were not the governing factors. The troops were fine and stout looking men. A long caftan of quilted cotton of a dirty brown colour, with turbans and sashes of white trousers downto the ankles generally of the same material as the rest with tremendous russet coloured shoes bending upwards from the toe to a great height, formedthe uniform of her army[21].Begam possessed a good arsenal and a foundry for cannon, both built within the walls of the fortress of Sardhana[22].Lashkarganj in the north of Sardhana was founded by Begam as the head camp forher troops for whom, the plain between it and town

formed the parade ground. Tothe south-east of town of Sardhana there was an old fort which now no longer exists[23].She was conscious of the fact that merely friendly relations without an army ather back would not be of much use at a time when several powers were contendingfor supremacy in India. She therefore, set herself to remodel and increase herarmy, whose reputation soon spread far and wide and the princess of Sardhana wasrespected and her friendship was eagerly sought for, by all. After her death in1836, the troops were paid up and disbanded by the Magistrate of Meerut, under the orders of British Government.

LAND REVENUE

For the purpose of Land revenue, jagir was divided into parganas and parganas into mahals. According to Mr. Plowden, thenet demand of her parganas ( Sradhana, Budhana, Baraut, Kutana, Barnawa and twoother villages[24])for twenty years during 1814-34 A.D averaged Rs. 5,86,650 including cesses, while the collection during the same period averaged Rs. 5,67,211 with balances amounting on the whole to only Rs. 19,439,00. Begam also levied custom dutieson goods in transit at places of entry through her territory by land or water.She enjoyed the right of collecting duties at ghats by virtue of Sunnaads from the British Government[25]. Begam‘s revenue policy was based on Mohammaden Law[26].The mode of settlement adopted by her was liberal and according to cultivator‘scapacity. As the assessment was annual, village rent­rolls were framed on money rates which were fixed and determined in each pargana and were classified onthe villages in cash, in a ratio graduated to the caste of cultivators of whom Jats held the first rank. The rate per pucca bigha for sugarcane ranged from Rs6 to Rs 9 as the lowest and from Rs 10 to Rs 15 as the highest, while in Meerutthey were Rs. 3 to 4.5 as the lowest and Rs. 9 to Rs 12 as the highest. An Allowance from 2.5% to 12% was made as nankar[27].In realizing the revenue, the takkavi advances were first recovered with interest at 25% per annum and then a second deduction of rupees 7 % was made for batta or loss in exchange on inferior rupees which was continued even when full weight rupees were current[28].The greatness of this system was that as the demand of State grows, the peasants too, prospered.

Begum established peace and order in her jagir and tried to help the cultivators and introduce such means which might increase the produce of the land. Bridges and roads were constructed and efforts were made to provide irrigation facilities to the farmers of her jagirs. Takkavi loans were distributed to the needy cultivators. There was also exemption of revenue, in case of calamity. The Begum herself toured the countryside frequently, so that she could personally come in contact of her people and know their grievances. Help was provided for sinking wells .In village called Kandera, she got four walls sunk, and a metallic road was constructed in Bamnauli. Her fields looked greener and more flourishing and the people of her villages appeared happier and more prosperous than those of Company‘s provinces.

LITERATURE, ART, MUSIC& ARCHITECTURE

Begam Samru was apatron of the poets who thronged her court at Sardhana and were encouraged byher benefaction.[29]She herself was efficient in Persian and Urdu and wrote and spoke Persian and Hindustani languages correctly and fluently. In conversation she was engaging and spirited.[30]She took keen interest in Persian and Urdu poetry and encouraged it by bestowing rewards in manner of oriental sovereigns.[31]Inher court Harchand, Zafaryab Khan Sahab‘, Farsoo, Munshi Gokul Chand, MirzaRahim Beg and Hira Lal were prominent poets. Begam was also a generous patronof art. Her palace contained an abundance of paintings,

many of them executed. There were many great paintings about the palace. Some portraits by Beechy and a few specimens of Chinnery‘s landscape were valuable and there was a cartload of trash, three or four good likeness of a native painter Jiwan Ram, who certainly had more of the art in him than any other painter of his time.[32]His portraits, as far as features were concerned, were very faithful and servile copies of the flesh. In life, expression and in figure he could paint an eye, a nose, a mouth most accurately resembling the copy.[33] Sardhana pictures were of historical importance and they displayed the taste of the Begam. Some portraits were to be found in Government House at Allahabad and now in Lucknow and one of them was at the Indian Institute at Oxford[34].The prominent portraits include the portrait of Begam, meeting of Begam and Lord Combermere after the fall of Bharatpur in 1826[35],Begam presenting a chalice to the clergy at Sardhana, Dice Somber wearing hispapal decoration painted at Sardhana, portrait of General Allard & CharlesMetcalfe, Col. Steward who when in command at Anupshahr in 1790 was captured bySikh Chief, Bhanga Singh while out riding and ransomed by Begam for Rs. 15,000.Of the other Sardhana picture, Indian Institute at Oxford possesses the portrait of Fr. Julius Ceasar, the first and last Bishop of Sardhana[36].

Music was actively patronized during her reign and she herself was very fond of dance. Chhotoo was a fine musician and enjoyed Begam‘s favour throughout her life and was awarded a handsome pension[37].She used to hold Mushairas (poetic symposia) particularly at her kothi in Meerut where now Mr. Puesch resides. Famous poets and budding local talent also participated. Outside the court, bhajans, ragnis, and khayals were popular. Further, Begam took keen interest in feasts and festivals. Dinners and ballroom dancing were arranged at her residence[38].Several European travelers have given a picturesque description of lavish display of wealth on such occasions[39].Bacon, who once attended grand feasts, gives a detailed account, which runs as follows, ― The Begum usually gives a grand feast which lasts three days, during Christmas and to which nearly allleading the society of Meerut, Delhi and the surrounding stations are invited,I have by me one of her circulars. Her Highness The Begam Samru requests the honour of company at Sardhana on the Christmas eve at the celebration of High mass and during the two following days, to notch ‘and a display of fireworks’. Tents are prepared in the palace garden for the accommodation of visitors and every luxury, which are profuse outlay can secure, is provided for the company. The tables sumptuously spread; the viands and the wines are alike, excellent. Upon three grand occasions, the Begam usually honours the guest by presiding at the table

but she does not herself partake any food in theirpresence. Not only the numerous visitors entertained in this magnificent style but the whole host of their followers and train are also feasted in the manner equally sumptuous in proportion of their condition. It was strange for Bacon to find that an enlightened British community, the victors of the soil, were paying homage and seeking favour at her foot-stool or even condescending to partake of her hospitality.

Begam was a great builder. The buildings which she erected bears testimony to her architectural taste. The most beautiful of all her buildings was undoubtedly, the Church. Begam created this temple of true God, on a scale of grandeur unrivalled atthat time in these parts and she lavished on it all the magnificence and beauty, which art generously engaged, could contribute to its embellishment[40].Begam sent its fine lithographic prints to Pope Gregory XVI and wrote that, ―I am proud to say that my Church is acknowledged to be the finest, without any exception in India. The Church began to be built in the year 1822by Mr. Anthony

Reghalini[41].The alter was entirely of white marble brought from Jaipur. Behind it, towers a huge marble tabernacles with a niche, on which was enshrined a statue of the mother of Jesus. This statue was not of the time of Begam, since it was thestatue of Our Lady of Lourdes, whose apparitions took place twenty one years after the Begam‘s death. In its place there originally was a beautifullyp ainted picture of our lady of the Sacred Heart that now addresses the SeminaryChapel at St. John‘s. It was replaced eventually, early in this century by the present statue. The former statue is now the treasured possessions of the convent of Jesus and Mary, where it stands enshrined in a garden, at the back of the Church[42].

On the left of the main alter there was the grand monument over the tomb of the Begam. It was the work of the great Italian sculptor, Adamo Tadolini of Bologua, one of the most illustrious followers of Canova. The monument was completed in 1842 at a cost of two and a half lacs of rupees, quite a large sum for those days. It was finally erected in the Church in1870. Till then, the remains of Begam were confined in the side Chapel, whichnow enshrines the sacred image of Our Lady of Graces. When the monument arrived, it was found too large to be erected there. Hence, Begam‘s remain had to bet ransferred to the place where they are now.[43]The entire thing was in Carrsra marble, perfectly white. It had eleven lifesizes statues and three panels in base relief. The Begum, in her rich Indian dress was seated aloft on a chair of State, holding in her right hand a foldedscroll, the Emperor Shah Alam‘s fireman‘ conferring on her the jagir of Sardhana. To her right stands Mr. Doyce Sombre in the mournful postures and onher left Diwan Rao Singh her minister. Immediately behind were Bishop Juliusand Innayatullah, her commandant of Cavalry and first aid-in-camp in waiting. Thesefour figures stand round a circular drum bearing the following inscription inArabic, Latin and English: Sacred to the memory of Her Highness Juanna Zeb-ul-nisa, the Begum Sombre, styled the distinguished of nobles and beloved daughter of the State, who quitted a transitory code for an eternal world, revered and lamented by thousands of her devoted subjects at her place of Sardhana, on the 27th Jan,. 1836 aged 90years. Her remains are deposited underneath in this Cathedral built by her. Toher powerful mind, her remarkable talent and the wisdom, justice and moderation with which she governed for a period exceeding half a century, to whom she was more than a mother, is not the person to award the praise, but in grateful respect to her loving memory is this monument erected by him, who humblytrusts, she will receive a crown of glory that fedeth not away— David Ochterlony Dyce Sombre.Thomas Bacon described the Church as not anungraceful building. For him it was built entirely for display. He wrote its decorations within the paltry and aboutthe altar there is great deal of tinsel frippery and tasteless ornament, better fitted for a theatre. One slab of white marble there is which is deservedly admired for the beauty of its mosaic work, being inlaid with precious stones in the style of Taj Mahal at Agra.

The architecture was mixed and the Church was built after model of St. Peter‘s at Rome .H.G Keene in his book Hindustan under Free Lances gives the following interesting account, of the church called Cathedral though when, the author knew the placethere was no Bishop there is not so much to be said. Besides affording theunwanted spectacle of large place of Christian worship in a Hindustani village, the building has no special to notice. It is, however, of respectable dimensions—170 feet long, with a central dome two lofty pines at the last end, the Vicar Apostolic consecrates it in 1829. The interior is paved with marble and relieved by moldings in

hand stucco . With these descriptions it can easily be calculated that the Cathedral[44]was a fine specimen of Muslim-European style. Its beauty and fame have attracted many foreign and Indian visitors[45].There have great builders in the history of the world, but nearly all of thembuilt building in big cities. It goes to the credit of Begam Samru that she erected the Church and other buildings in a small village like Sardhana andmade it a place of world fame.

Other buildings of Begam Samru include The Old Palace, The Begam‘s Palace, Anthon Kothi,

TheBegam‘s Fort, Former Presbytery St. Joseph‘s Convent, The Begam‘s Palace at Meerut, The Begam‘s Palaces at Delhi (Gernail Bibi Ki Haveli), Presbytery andCatholic Church, Houses at Khirwa and Jabalpur and Catholic Cemetery.

THE OLD PALACE

In front of the gate of the Church there was a big building on the opposite side of the road. The building was in Indian style. The Begam passed her life time in this building.Though it was said that the building was in existence when she assumed therein of administration, but many additions and alterations were made by her later on. There were underground rooms where the Begum used to retire to escapet he heat of summer. She gave this palace to Solaroli, an Italian adventurer anda person of influence in her court. She then shifted into the palace which she built for herself. Solaroli donated this building to the Catholic Diocese ofAgra. Later the building served for years as the Parish Priest‘s residence and also as an orphanage and seminary.

THE BEGAM’S PALACE

This palace was completed in 1835 and Begam lived here for only one year. Bacon visited the palace and gave the following description, It is a handsome a spacious building, though still unfinished. The rooms are very large and well proportioned and the furniture costly though heterogeneous and badly arranged. The whole establishment is a mixture of grandeur and bad taste. Bacon account was somewhat prejudiced. On the whole, the building arrests attention. It was constructed by the same architect, who built the Church. Inside, there was the Begam‘s bath, all in marble with designs inlaid in Petra Dura and avery pretty apartment, the audience hall or throne room. Its gate way was very impressive and was known as the Sher-Darawaza. The palace or Dil-Kusha kothi, stands in a vast enclosed garden and was raised upon a basement 11 feet in height. The portico looks north and the landing of the staircase projects.Parallel to the projection was a hall 42 feet by 36 feet, from which thevarious apartments open on three sides. A winding staircase leads to somewhat similar rooms on the other side. The whole façade was about 160 feet in height and open on four principle sitting rooms besides the central hall. There were bedrooms in the rear. The Catholic mission of Agra purchased the Begam‘s Palace with the annexed garden in 1897 for Rs. 25,000. At present the Begam‘s Palace lodged the Saint Charles Inter­ College

ANTHON KOTHI

Outside the front ofthe palace compound there stands another large building surrounded by anextensive compound. It was the residence of Major Anthon Reghalini, The architect of the Church and Begam‘s Palace. At present it is a primary school.

BEGAM’S PALACES AT DELHI

On a smaller scale a palace was built at Delhi. It consisted of a splendid mansion, the two or three smaller houses. It was in Gothic style, modeled on her haveli in Sardhana. It stands at the beginning of Chandi Chowk and is today hidden behind a cinema hall and a bank and is known as Bhagirath palace. She also built a beautiful palace near the palace of Sahiba Mahal, the wife of Mohammed Shah Rangella. Itwas known as Gernail Bibi ki Haveli. But the palace was destroyed by the British Government and a railway line was constructed over it near Kauria Bridge. Nowadays, there is also a railway godown.

THE BEGAM’S PALACE AT MEERUT

A large and commodious house was built at Meerut. It lies on the south of the Meerut College. The Begam generally visited the palace for a couple of months towards the close of the year, bringing with her the chief of her trains.

PRESTYBERY AND A CATHOLIC CHURCH

The Begam built aprestybery and a Catholic Church for the British soldiers and officials inMeerut in 1834, which was given to the Government in 1862. In the same year,the present Catholic was solemnly blessed.

HOUSES AT KHIRWA

She built a very fine housein Khirwa in Feb., 1828. Residential Houses atJ alalpur. Begam also built a residential house at Jalalpur. The ruins of this house were still in existence in about1874.

CATHOLIC CEMENTARY

This was also the monument of Begam‘s time. Many persons connected with the Begam‘s life were buried here. Some monuments were extraordinary beautiful. The domes were beautifully designed and several parts of the inside were silver painted. Many of the monuments are now in a sad state of decadence and require proper maintenance. Lady Forester, the wife David Dyce Sombre, built a hospital with the money left by The Begam for the purpose. A slab on the main Building records its beginning Her highness the Begam Somber having left ascertain sum of money for charitable purposes, the same was applied in theerection and the endowment of this hospital and dispensary by the right honourable Mary Anne, the baroness Forester bfor the benefit of the poor of Sardhana, Anno Domini 1861.

RELIGIOUS POLICY

Begum Samru was a benevolent ruler. For her, there was no distinction between a Hindu, Muslim or Christian as far as appointment/promotion in the public services were concerned. The use of force in conversion was unknown and all religions were put on equal footing. Diwan Har Karan das, Rao Diwan Singh,Diwan Nar Singh Rao, Vakil Manna Lal and Munshi Gokul Chand were all Hindus and held important posts. Inayatullah was her commandant of cavalry and firstaid-de-camp in waiting. Agha was head of the treasury. Abul Hasan Beg was a commander in her service. Except the army, the administrative machinery of the jagir was completely in the hands of Hindus and Muslims. The use of Persian asthe language of the record and accounts led the Hindus and Muslims to occupy every office and no office was beyond their reach. A Christian colony had developed had developed in Sardhana because the Begam herself was a Christian and her army officers too were Christians. During her reign, some people oflower castes converted themselves into Christian faith due to the genuine efforts of the priests, but no force was ever used in doing so. As a good Christian, Begam made large grants for charitable purposes[46].The Church at Sardhana was erected, costing four lacs of

rupees. She also gave rupees 1, 00,000 to the Catholic Missions of Calcutta, Bombay and Madras; rupees 30,000 to that of Agra; rupees 12,000 to the Church at Meerut; rupees50,000 to the Archbishop of Canterbury and during her life she gave rupees 150thousand or 143 thousand seven hundred and four pounds three shillings and four pence to His Holiness, pope Gregory XVI[47].

ESTIMATE OF BEGAM SAMRU

Begum relieved her territory from anarchy and restored peace and order. She was distinguished by an unusual energy, enterprise and courage which enabled her to occupy a position of eminence. All State Business was transacted under her own eyes. She gave audience, carried on diplomatic correspondence with regularity and supervised closely the activities of her subordinates. Peace and order were well kept throughout her dominions[48],no lawless chiefs were allowed to harbour criminals and defraud the public crevenue and the soil was maintained in complete cultivation. This was highly commendable for an Asiatic ruler.[49]It was due to her singular genius that she successfully ruled and attended to the political and diplomatic problems at a time when, on the political field ofIndia, there were brilliant officers like Wellesley, Cornwallis, Barlow, Minto, Lord Hasting, Amherst and William Bentinck as Governor General; David Octerlony, Seton, Metcalfe, Martin and Fraser as Residents of Delhi and Arthur Wellesley(who later on defeated Napoleon in the battle of Waterloo) and Lord Lake as Generals. These men were of superior caliber and were on the scene. Kilpatrick,Close, Elphinstone, Malcolm etc were also men of experience and talent. In the history of British India such a galaxy of statesman, warriors and diplomats were never noticed. The Mughal emperor called her the most beloved daughter and the jewel of her sex. Mahadji Sindhia ever thought of her as his staunch supporter. She served Daulat Rao Sindhia to her utmost, but the attitude of Ambaji Engle and Perron changed her mind. She outwitted Lord Wellesley and was very much applauded by General Lake[50].William Bentinck always treated her as his most esteemed friend.

Like Victoria who ruled over England for a period extending over sixty three years, Begam Samru ruled the Sardhana principality for 58 years. Like Ahalya Bai, she maintained a stable and almost idyllic regime at Sardhana and like Chandbibi, who defended the city of Ahmednagar with valour, equal to that shown by Rani Durgawati inGondwana, Begam Samru kept her principality safe against heavy odds.

RaziaSultan and Nur-Jahan were little much to the abilities of Begam Samru whoseoutstanding position as a great political and military leader standsunsurpassed. Crafty and forceful, the Dowager Empress Tzu Hasi proved worsethan a failure in China, lacking foresight and judgment, whereas Begam Samru‘sremarkable ability made her outstanding among the galaxy of great women of theworld in her own small way[51].

It was owing to her wisdom and practicalability that Chandkaur mother of Naunihal Singh once declared,

“Why should I not do as Queen Victoria does in England? She would come out of the Zanarra,wear a turban or ride on elephant as a Sardar and receive the English Sahibs asdid Begam Samru”[52].She certainly was a remarkable lady, the first and the last of the women whorose from the status of a dancing girl to a position of distinction and ruledover one of the most fertile plains of India. The greatness of Begam Samru layin her spirit of liberality and justice which distinguished her character.

REFERENCES

1. According to Sleeman she must haveborn in or about 1741 as he writes, ―Begum was baptized at the age of 40 by aRoman Catholic priest under the name of Joanna on 7th May, 1781 (1836 was the year of her death). Mr. Higgan Botham referring to Bacon‘s workssays that she died at the age of 89, which places her birth in 1747. Mr. Bealsstates that she was aged 88 limar year‘s equivalent to about 85 solar years.This places her birth in 1751. Mr. Keegan like Mr. Atkinson who stated herbirth in 1751 states says that so far as the date can be plausibly conjectured,she was born in about 1750. Mr. Banerji places the date of her birth in1750-51 pointing out in a letter addressed to Pope Gregory the 16thby Dyce Sombre( her adopted son and heir) in 1836 which was the year of herdeath, she is said to have reached the age of 85. This view is also supportedby George Thomas who was her famous general. He described her in 1796 as follows; Begam Samru is about 45 years of age, small in stature but inclined to beplump.
2. Concerning her parentage there are various accounts. Onehistorian asserts that she was the daughter of a decayed Mughal Nobleman(Francklin). Another that, she was a Kashmiri dancing girl( Bussy in a letterod March 3, 1784 to Marechal De Castries) and third that she was by birth a Saiyyidinior lineal descendant of the prophet(Sleeman). Much more surprising was theaccount written by Lt. Governor of the N.W Provinces on 4th May,1836, which is as follows—―Having been previously, it is most probable, botHindoo and Mohammadan, the former by birth and the latter in consequence of herprofession . As a matter of fact, it is doubtful whether she herself knew ofher parentage. Sleeman visited Sardhana on 7th Feb, 1836 andgathered information which can be relied upon. He writes, The Begum Samru bybirth a Saiyyidini , or lineal desendant from Muhammad, the founder of Muslim faith.( Rambles and Recollections of an Indian official, Vol. II, p­267)
3. Fancklin, History in the Reign of Shah Alam, p­147.
4. H.R Nevill in Meerut DistrictGazetter states on page 157 that, ―This remarkable women was the daughter ofone Asad Khan, a Musalman of Arab descent. But Banerji tells ―We only knowthat her father was a nobleman named Luft Ali Khan. p­14. It seems that AsadKhan was none other than Luft Ali Khan.
5. North West Frontier ProvinceGazetter, Vol. II,p-96.
6. Bacon,― First Impressions and Studies fromNatives in Hindustan, Vol. II, P-35
7. Ibid.
8. Sleeman,Rambles and Recollections of an IndianOfficial, Vol. II, p-268.
9. Banerji,Begam Samru, p-14.
10. Refut. P-372.
    1. Extract from the proceedings SadarBoard of Revenue, May 30, 1840, Vol. 166, No. 28, p-35.
11. Foreign Poli. Progs. 22-29 Oct.1832, S. No. 678.
12. Letter from Octerlony to Begam Samru dated 11thMay, 1804.
13. According to parwana‘ available inState Archives Allahabad, the Begum on Feb. 1, 1798 granted 40 bighas of landsituated in village of Khatauli, as a rent from land to Mohammed Suleh Khan.The

Begam also ordered that the grantee should utilize its produce for hislivelihood and pray for the welfare of the State. State Archives, Allahabad.No. 1867.

1. Begam to Lt. Col. Octerlony, dated3.2.1804, Sec. Progs 2-3, 1804, No. 252.
2. M.N Sharma, Life and Times of Begam Samru of Sardhana, Vibhu Prakashan, U.P,1985, P-138.
3. Sir Charles Metcalfe‘s Minute,dated 7 No., 1830.
4. Foreign Poli. Progs. 22ndFeb., 1836. No. 26, p-23.
5. Foreign Dept. Poli. Cons. No. 25dated 22nd Feb., 1836, p-1.
6. Atkinson, Statistical, Descriptive and Historical Accounts of Meerut(Mirath)District, p-295.
7. Skinner, Excursions in India Including a Walk Over, Vol. II, p-53.
8. Compton, A particular Account of the European Military Adventurers of Hindustan,p-174.
9. A sketch of the rise, progress andtermination of Regular Corps, formed and commanded by Europeans in the serviceof Native Princes of India etc. Smith. L.P.1805.p-5.
10. These two villages were Nirpura andDoghut (now in Meerut Distt.). In the time of Begam, these villages were keptseparate and the average assessment amounted to Rs. 24,700 for both.( Extractfrom proceedings of Sadar Board of Revenue May 30, 1840, Vol. 166, p-28)
11. Foreign Poli. Cons. No. 30, 21stAug., 1819, p-3.
12. Atkinson, North West Frontier Gazetter, Vol. III, p-432.
13. Nankar was the regular deductionallowed on the zamindari. It was an allowance to the village communitydiffering in each village and ranging from 2% to. 2.5% on the Jamuna. Theincome from which was utilized for the maintenance of the zamindars and theirfamilies.
14. Extract from the proceeding SadarBoard of Revenue, Vol. 166, p-38.
15. Saxena R.B, Indo-Europen Poets of Urdu and Persion, p-258.
16. Keegan, opcit, p-32.
17. Saxena R.B, opcit, p-258.
18. Bacon,opcit, p-223.
19. Ibid.
20. Bengal: Past and Present, Vol. XXX, p-203.
21. Begum also sent to General LordViscount Combermere, her portrait and insisted upon a return of compliment. Thepicture, a work of a native artist, who resided in Meerut and had made arespectable progress in arts was an exceptionally good likeness.(Mundy, Pen and Pencil Sketches in India, p-179)
22. Bengal: Past and Present, Vol. XXX, p-203.
23. Foreign Poli. 23rd May,1836, Cons. No. 75.
24. Poli Progs, 8th July,1831, Cons. No. 96, p-278.
25. At the dinner, Begam seemed inexcellent humour and handed jokes and compliments with His Excellency (LordCombermere) through the medium of interpreter. When the feast ended, Europeanofficer in her service walked around the table and invested each of the guestswith a long necklace of tinsel. (Mundy, Penand Sketches in India, p-181)
26. Heber,Narrative of a Journey Through the UpperProvinces of India, p-543-45.
27. Keegan,opcit, p-3.
28. Patrik Nair, Sardhana, p-47.
29. Ibid.
30. The Church was once known asCathedral because at that time Sardhana had its own Bishop.
31. It annually attracts nearly twomillion visitors. Twice a year, in March and November pilgrimages are organizedin this shrine. Besides, every day people come to ask for favours or to thankHer for those received.
32. PoliProgs. 25 Nov.-2nd Dec. 1831, S.No. 655, Cons. No. 16 , p-17.
33. PoliProgs. 25 Nov-2nd Dec., 1831, A. No. 655, Cons No. 16, p-118.
34. Keene,The Fall of the Mughal Empire, p-241.
35. Ibid.
36. Substance of a letter from LordLake dated 6th August, 1805, ―I have been highly gratified byaccounts from Mr. Guthrie of your Highness‘s goodwill and friendship towardsthe British Government, that Gentlemen has been requested to wait upon yourhighness and adjust carefully all your affairs and be assured of the lastingand uninterrupted support and countenance of the British Government .
37. M.N Sharma, opcit, p-184.
38. Ibid p-185.

NATIONAL GREEN TRIBUNAL AND ENVIRONMENTAL JURISPRUDENCE: SYNERGY OF ACTIONS

[Vol 1/ Issue 2/ Apr 2015] [ISSN 2394-9295] Dr. Bhavish Gupta

Associate Professor Amity Law School, Delhi

bgupta1@amity.edu

ABSTRACT

Although, India has a comprehensive environmental framework with extensive set of environmental laws and institutional frameworks to implement and enforce environmental policy objectives, various environmental safeguards were rendered toothless due to lack of effectiveness and implementation.

The root cause responsible for our failure in protecting the environment and maintaining smooth environmental governance has been identified as the poor implementation of environmental law and principles of Sustainable Development especially at the domestic level. This has highlighted the critical importance of the domestic system of access to justice that in turn greatly depends on formal institutional mechanism or organization of courts and their environmental sensibility.

The need to enforce new generation environmental rights of the contemporary society led to the launch of a global movement for creation of specialist environment courts. The primary objective of this paper is to appreciate the real contribution of the National Green Tribunal in the growth of environmental jurisprudence in India. The study will particularly focus on the effectiveness of the role of the National Green Tribunal in incorporating the principles of sustainable development in the Indian legal framework. Further, a study of the landmark case laws of the NGT will provide an insight into the standpoint of the NGT on major environmental issues.

INTRODUCTION

Man-nature relationship is crucial to Indian value system. The essence of this relationship is explicitly reflected in the edicts of the Atharva Veda and in the historical environmental ethics of Vasudhaiva Kudumbakam (i.e. fraternity with the environment). The Indian principles overtly affirm man‘s responsibility to preserve his environment.

Globally, a related doctrine of Sustainable Development emerged in modern times. Sustainable Development emanated from the 1972 Stockholm Declaration andwasgiven definite shape in 1987 by the World Commission on Environment and Development. In its report Our Common Future, it defined this doctrine as the development that ―meets the needs of the present without compromising the ability of future generations to meet their own needs . Today Sustainable Development is the bedrock of International Environmental Jurisprudence.

Consequently, proactive Indian judiciary aligned its efforts to integrate the ancient Indian philosophy and the leading principles of International Environmental Law. Ever since, the Supreme Court of India has developed a

body of green constitutional law and brought salutary advancement to environmental jurisprudence, within the constitutional mandate of Article 48-A and Article 51A (g)[1].

In order to safeguard against the deleterious effects of environmental degradation, the Supreme Court initiated and indulged in activist intervention. Furthermore, it resorted to liberal construction of the Constitution and brought innovative methods in environmental jurisprudence, both substantive and procedural. These judicial initiatives include liberal construction of fundamental rights, expansion of the existing procedure, application of new principles to address environmental problems and creation of new structures and implementation of Court orders through Continuing Mandamus[2].

The apex court radically expanded the scope and ambit of Article 21 Right to Life & Article 32 Original jurisdiction of the Supreme Court of India. It expansively interpreted the Right to Life enshrined in Article 21 to include the right to wholesome (i.e. clean and safe) environment and includes the right to living environment congenial to human existence And promoted the exercise of Article 32 for enforcement of the right to a clean environment as a facet of the right to life itself.

Aiming to integrate vital elements of fairness, equity and access to justice into Indian environmental jurisprudence, it allowed the practice of Public Interest Litigation [PIL]. In numerous cases before the Supreme Court, it liberally construed the principle of locus standi to allow class action against public nuisance, with the objective of securing enforcement of environment related rights.

EMERGENCE OF GREEN COURTS AND TRIBUNALS

The need to enforce new generation environmental rights of the contemporary society led to the launch of a global movement for creation of specialist environment courts. This revolutionary initiative aims ―to qualitatively improve outcomes for litigants and society[3]. The chief objective behind creation of such specialist courts is to establish a formal institutional mechanism in environmental governance so as to provide access to justice in environmental issues expeditiously at nominal cost while preventing excessive burdening and resultant inconvenience of the regular courts.

The emergence of this trend may be traced back to 1917, when Denmark established the Nature Protection Board with the purpose of preservation of the natural environment. Next the Water Court was set up in Sweden with focus on water rights issues. With the launch of environmental movement since Stockholm Conference Environmental Courts & Tribunals became popular due to complex nature of environmental issues[4].

The popularity of Environmental Courts or Tribunals is reflected in the UN Environment Programme (UNEP) Experts Group on Access to Environmental Justice in the Caribbean Report that noted ―consensus has emerged in the region on the need for the establishment of specialized and independent courts or specialized environmental divisions of the High Court judicial system and advised expansion of the jurisdiction of these Environmental Courts or Tribunals in order to include ―the built environment, indigenous peoples rights, development planning issues and land tenure.

Similarly at the regional level, the Asian Judges Symposium on Environmental Decision-Making, the Rule of Law, and Environmental Justice organizes by the Asian Development Bank [ADB] lay emphasis on

―improving environmental and natural resource decision making and adjudication within regional judiciaries,

without assuming that any particular form or structure is the best way to achieve effective environmental decision­ making and adjudication in different country contexts; highlighting environmental specialization within general courts, as well as exploring work done by specialist environmental courts, boards, and tribunals. Importantly, without drivers for increasing the demand for effective environmental judicial decision-making from the judiciary, environmental judicial specializations could go unused. [5]

As a result, recently, Kenya, Brazil, Chile and England have founded environmental courts and tribunals with expanded jurisdiction that include a vast variety of environmental issues.

Correspondingly, even the Supreme Court of India has supported this current trend, keeping in mind the national developmental and environmental needs.

PERCEIVING THE NEED FOR ESTABLISHMENT OF ENVIRONMENT COURTS IN INDIA

Although, India has a comprehensive environmental framework with extensive set of environmental laws and institutional frameworks to implement and enforce environmental policy objectives, various environmental safeguards were rendered toothless due to lack of effectiveness and implementation. This has highlighted the critical importance of the domestic system of access to justice that in turn greatly depends on formal institutional mechanism or organization of courts and their environmental sensibility.

As the chief tools to environmental justice – Writ Jurisdiction & PIL proved to be unsuccessful due to rapidly increasing number of petitions, expensive and delayed disposal of petitions, complex technical and scientific issues in environmental matters; the issue of establishing a specialist environmental court in India became increasingly crucial.

International instruments like Rio Declaration on Environment and Development, 1992 and the Aarhus Convention, 1998 highlighted the need for promotion of easy access to a fair, equitable, timely and inexpensive justice system. Keeping in line with these international standards, the Supreme Court of India embarked on a

creative‘ activist phase and made observations regarding the need for constitution of environmental courts. The Law Commission of India in its 186th Report of the Law Commission of India on Proposal to Constitute Environment Courts‘ (2003) recognized the inadequacies of the existing appellate authorities and reviewed their position on the same. The Law Commission strongly advocated the establishment of Environment Courts‘ pursuant to the observations of the Supreme Court of India in judgments namely, MC Mehta v. Union of India[6], Indian Council for Enviro-Legal Action v. Union of India[7], A.P. Pollution Control Board v. Nayudu[8].

Answering the need of the hour for a balanced judicial forum that advances a distinctively green jurisprudence, the National Green Tribunal was proposed as the federal judicial body for ―effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources.

As a result, the Parliament of India enacted the National Green Tribunal Act 2010. The NGT started functioning on the 4th July 2011. The Principal Bench was created at New Delhi with circuit benches at Chennai, Bhopal, Pune and Kolkata so that it can reach remoter parts of India.

GREEN COURTS IN INDIA­ TRULY A ‘JUDGE­DRIVEN REFORM’

It must be appreciated that it is truly the Supreme Court‘s precedents that are really the force behind creation and establishment of environment courts in India. As the Commission explicitly observed in its opening

remarks, ―pursuant to the observations of the Supreme Court of India in four judgments and further overtly quoted these cases M.C. Mehta v. Union of India[9], Indian Council for Envtl-Legal Action v. Union of India[10], A.P. Pollution Control Board v. Nayudu[11], A.P. Pollution Control Board v. Nayudu[12] in the Report.These precedents set by the Supreme Court of India advocated in favour of an open, accessible and technically sound environmental justice system. Hence, the resultant establishment of green courts and particularly the National Green Tribunal may appropriately be credited to the progressive outlook and positive aggression of the Supreme Court of India and rightly be described as a Judge­Driven Reform‘.

It may well be concluded that in view of the present international standing of India as an emerging market economy that is faced by critical trade and development issues in the backdrop of ostensible conflicts between developmental and sustainability issues balancing these issues through organization of specialist environmental courts looks promising.

The legislators may establish these specialist environmental courts under Article 247[13] as Additional Courts‘ on the lines of successful specialist environmental courts such as those operational in Australia[14] and New Zealand. These additional courts shall be characterized by Judicial and Technical inputs on the Bench, having original as well as appellate jurisdiction with all the powers of a Civil Court and expanded jurisdiction as compared to earlier versions.

The environmental courts however must be characterized by the Polluter Pays Principle, the Precautionary Principle, the Prevention Principle, New Burden Of Proof‘ principle, the principle of Sustainable Development‘, Public Trust doctrine, Concept of Inter­Generational Equityand the Strict Liability principle.

The National Green Tribunal held its first hearing on May 25, 2011. The National Green Tribunal started proper functioning from 4th July 2011.

ROLE OF NATIONAL GREEN TRIBUNAL

The National Green Tribunal with its wide powers and jurisdiction has played a vital role in bringing well-timed awareness and prominence to legal environmental concerns in India. This Tribunal has emerged as a new hope for the green revolution in the nation. Through its far-sighted and progressive judgments on various environmental issues it has drastically changed the face of environmental jurisprudence in India. It is best to obtain an insight into the standpoint of the NGT on major environmental issues through a critical evaluation of its judgments & orders in the matters before it. The National Green Tribunal gave its first judgment on 12th September 2011.

FEW LANDMARK CASES OF THE NATIONAL GREEN TRIBUNAL

1. Goa Foundation & Ors. V. Union of India & Ors.

Decided on 18^th July 2013

Goa Foundationa registered society along with Peaceful Society both being frontrunners of environment campaigns in Goa working towards conserving and protecting the ecology of Western Ghats and supporters of“Save the Western Ghats March”; applied to the NGT for interim relief for directing the respondents not to issue any consent/environmental clearance or NOC or permission under the Environment Protection Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Forest Conservation Act, 1980 or the Biological Diversity Act, 2002, within the Western Ghats areas,

particularly in relation to those which have been demarcated as Ecological Sensitive Zone I (ESZ 1) and

Ecologically Sensitive Zone II (ESZ 2).

The applicants further demanded the discharge of obligation on part of the respondents by exercise of the powers conferred on them under the enactments stated in Schedule I to the National Green Tribunal Act, 2010 for preservation and protection of Western Ghats within the framework, as articulated by the Western Ghats Ecology Expert Panel (WGEEP) in its report dated 31^st August, 2012.

The Government had constituted the WGEEP or the Dr. Madhav Gadgil Committee on persuasion of various organizations on 4th March 2010.The Committee had submitted its report on 31^st August 2012 but the same remained pending for consideration with the MoEF.

Although, the matter was pending before the Bombay High Court when the application was presented before the Tribunal, the Tribunal deemed it fit to take up the matter due to the sensitivity of the issue. The indiscriminate developmental activity posed serious threat to the ecology of the Western Ghats. If allowed it would lead to disadvantage of the public interest in violation of the Public Trust Doctrine. Hence, the NGT recognized the imminent requirement of intervention so that environmental equilibrium may be maintained and ensured.

In this case the NGT addressed issues of its jurisdiction, clarified the terms „any person aggrieved‟ & „cause of action‟ and applicability of principle of sustainable development, precautionary principle and polluter pays principle in its functioning.

This gave rise to questions relating to the scope of jurisdiction of the National Green Tribunal and whether its ambit included enforcement of fundamental rights. In response the NGT held that the NGT was established

―for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto”. Hence, the Preamble sufficiently indicates that the Tribunal is vested with jurisdiction to enforce fundamental rights under Section 14 when the contents satisfy the ingredients of it being in the nature of a civil case and relate to a substantial question of environment relating to implementation of the enactments specified in Schedule I to the NGT Act. However, the Tribunal doesn‘t have extraordinary jurisdiction unlike the Supreme Court so it must function within the framework of the NGT Act while keeping in mind its object and purpose as specified by the legislature.

The tribunal further clarified that the societies having no direct or personal interest in invoking the provisions of the Act came „any person aggrieved‟ under Section 18 and thus have a right to appeal to the Tribunal against any order, decision or direction issued by the authority concerned and so they could pray for issuance of directions as per provision of Section 16 of the NGT Act.

The tribunal explained that under Section 14 „cause of action‟ relates a bundle of facts pleaded and proved for the purpose of obtaining the relief claimed in the petition. In order examine the cause of action the petition must be read as a whole. Under the NGT, the „cause of action‟ relates to a question of the environment i.e. socio-centric and not person centric and must be decided with reference to the dispute.

The tribunal also affirmed the applicability of Principle Of Sustainable Development, Precautionary Principle and thePolluter Pays as provided under Section 20 of the NGT Act. Prevention of likely damage to environment is covered under the precautionary principle hence inaction could itself be a violation of the precautionary principle, and therefore place statutory obligation on Government to take appropriate steps to prevent harm to public by controlling pollution and protecting the environment and ecology of the Western Ghats.

For the reasons aforesaid, the tribunal upholding that the Right to life includes right to environment within the meaning of Article 21 of the Constitution of India held that the application was maintainable. It also held that the applicant has been successful in making out a case of non- performance of the statutory obligation by the State and other authorities and the need to prevent environmental degradation under the precautionary principle on the other. Thus, the applicant has a legal right to approach the Tribunal and pray for relief within the scheme of the NGT Act without showing any personal injury or any actual damage to the environment.

The above case displays the competence of the NGT in dealing with matters of deciding its jurisdiction as well as its potential in rightly enforcing Right to Life that includes Right to healthy environment while applying precautionary principle. It truly showcases the progressive and effective outlook adopted by the new specialist tribunal.

1. National Green Tribunal Bar Association V. Ministry of Environment & Forests & Ors.

(Sand Mining Case)

Decided on 5^th August 2013

The Case deals with the large scale illegal and impermissible mining activity on the bank of rivers Yamuna, Ganga, Chambal, Gaumti and Revati. Such removal of minerals from the river beds causes serious threat to the flow of the river, forests upon river bank and to the environment of these areas. The gravity of the situation may be inferred by the fact that mining activity is being carried out on a large scale, causing heavy losses of State.

The tribunal cited the Supreme Court judgment Deepak Kumar & Ors v. State of Haryana & Ors[15] that highlighted that sand mining causes bio-diversity disturbance as loss of habitat affects various species, flora and fauna and also destabilizes the soil structure of river banks. In this case the Supreme Court had affirmed that a person carrying on mining activity in less than 5 hectares is required to obtain EIA Clearance from MoEF.

On the above grounds the tribunal admitted the Petition finding therein substantial question within the ambit of Section 14 arising from the Acts under Schedule – I of NGT Act 2010. Hence, the tribunal issued Notice with an order restraining any person, company, authority from carrying out any mining activity or removal of sand, from river beds anywhere in the country without obtaining Environmental Clearance from MoEF/SEIAA and license from the competent authorities. Further it issued directions to all the Deputy Commissioners, Superintendent of Police and Mining Authorities of all States to ensure compliance of its directions.

This order of NGT is commendable as it attempts to curb rampant malpractices that adversely and seriously threaten the natural resources of the nation. It shows the zero tolerance of the NGT with regard to any operations without obtaining EIA or EC that would result in serious ecosystem disturbance and degradation.

1. Haat Supreme Wastech Pvt. Ltd. & Ors. V. State of Haryana & Ors.

Dated: 28th November, 2013

This case pertains to medico-legal jurisprudence of some public significance within the ambit of substantial question relating to environment. The present case deals with the question as to whether the bio-medical waste disposal plants require Environmental Clearance (EC) in terms of the

Environmental Clearance Regulation, 2006.

In the present case the appellants are running units of Bio-Medical Waste Treatment facility with due authorization under Bio-Medical Waste (Management & Handling) Rules, 1998. They applied to the prescribed authority i.e. Haryana State Pollution Control Board, for renewal of the authorization. The State and the Central Pollution Control Boards, conducted an inspection of the Appellants‘ premises and pointed out certain shortcomings. Thereafter, they received notices from the state authority to deposit Rs. 5 lakhs each by way of bank guarantee to ensure compliance of the directions. Subsequently, the Central Authority called upon them to deposit a bank guarantee of Rs.10 lakhs each and take steps to remove the deficiencies.

The Appellants challenged the jurisdictiona and authority of the Central quthority on the grounds of arbitrariness and discriminatory.

The Tribunal has dealt in detail with the definitions of “environment”, “hazardous substance” and “environmental pollutant” in order to explain the interrelationships and the wide ambit of environmental jurisprudence and the obvious need to prevent pollution. The bio-medical waste by its very characteristic nature is a hazardous waste. Rule 2 of the Rules of 2008, deals with the application of these Rules. It provides that the Rules shall apply to the handling of hazardous waste as specified in the Schedule. Hence, the plants dealing with such bio-medical hazardous wastes and substances must obtain environmental clearance under the provisions of the Entry 7(d) of Notification of 2006. The tribunal directed all appellants and the respondents to obtain environment clearance in terms of site location, potential environmental impacts and proposed environmental safeguards from MoEF in accordance with law.

The tribunal herein observed that the environmental clearance would ensure a critical analysis of the appropriateness of location and its surroundings. While also guaranteeing strict adherence of legal parameters and minimise impact on public health.

This case provides an insight into the NGT‘s perception on the issue of hazardous substances and its handling. The NGT order reiterates the EIA concept in line with the Precautionary Principle.

1. Jan ChetnaV. Ministry of Environment and Forests

Decided on 9th February 2012

The case refers to an appeal by representatives of Jan Chetna a social and environmental group working for the welfare of the local communities and creating awareness on social and environmental issues against the environment clearance granted by the MoEF to M/s. Scania Steels & Power Ltd. (formerly known as Sidhi Vinayak Sponge Iron Ltd.).

M/s. Scania Steels & Power Ltd. was operating a Sponge Iron Plant in Village Punjipatra, Tehsil Gharghoda, District Raigarh in the State of Chhattisgarh, had applied to MoEF for expansion of its existing project to enhance its production by adding another unit.

The Appellants claimed to be aggrieved by the grant on account of having agriculture land adjacent to the project site. The NEAA dismissed the Appeal and the appellents appealed before the High Court of Delhi which set aside the order passed by NEAA and directed the said Authority to dispose of the Appeal on merits. In the meantime The NGT Act was promulgated and the Appeal stood transferred to NGT.

The tribunal recapitulate the need to allow development within the carrying capacity of the ecosystem in line with sustainable development. The importance of development to the country as it generates foreign exchange and provides employment avenues is of great importance. However, the same shall not be carried out at the cost of ecology and pose health hazards. Hence, the triunal highlighted the need for application of “Precautionary Principle” and the “Polluter Pays Principle”.

In the present case the tribunal liberally constructed the expression “aggrieved persons” and included the Appellants therein.

It also held that the EIA Notifications, 2006 gave due recognition to the procedure of public consultations in furtherance of the rights to the environment. It explained that Public consultations consisted of public hearing at the site or in its close proximity and to obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.

It clarified that Clause 7(ii) stipulates that all applications seeking prior environmental clearance for expansion with new increase in the production capacity would attract the exclusion of Public consultation. However, in the case in hand wherein the production capacity of an existing Sponge Iron Unit is sought to be enhanced no prior environmental clearance has been granted thus the concession not to hold public consultation cannot be extended to it.

Hence, the decision to exempt Public Consultation was not just and proper specially due to significant increase in pollution load and consequential environmental ramifications. Considering the magnitude of the proposed project, the public opinion must be sought.

It highlighted the importance of due diligence on part of EAC or State Level EAC in EIA and Public Consultations only for expansion proposals or modernization where prior environmental clearance had been accorded under this Notification (EIA Notification, 2006).

In view of the above the tribunal directed the MoEF to hold public consultation (Public Hearing), develop appropriate mechanism, to check the authenticity of environmental data reported to facilitate a more realistic environmental appraisal of project. It further demanded action to against Consultants found to have reported

―cooked data or ―wrong data in producing sub­standard EIA/EMP report.

The Tribunal suspended the EC granted till the tribunal‘s directions were complied with for completing the exercise of public consultation (Public Hearing) and curing the deficiency in EIA/EMP, and re-visit the entire project in the light of the observations made by this Tribunal by the MoEF expeditiously.

The present case reiterates the progressive stand on part of the Tribunal of balancing development and sustainability and highlights the importance of Public Hearing process in grant of EC especially to large scale projects.

1. Supreme Court Group Housing Society and Another V. All India Panchayat Parishad and

Others (Delhi Noise Pollution Case)

Decided on 18^th December 2012

The present case relates to a Public Interest Litigation filed by the Supreme Court Group Housing Society andIndian Foreign Service Group Housing Society in the Hon‘ble High Court of Delhi pertaining to the noise pollution caused due to use of loud speakers, DJ systems, Music Systems, public address system etc. during weddings, receptions, parties and other functions arranged in the premises of All India Panchayat Parishad situated in a strategic point of the Housing Societies thereby violating the terms of allotment of the said premises.

It was submitted that All India Panchayat Parishad let out the premises for marriages and parties wherein noise pollution that not only caused annoyance, but also lead to significant adverse health impacts as high blood pressure, hearing impairment, neurological disorders with serious impact on development of their mental capacity of children etc.

The Appellants also complained of consequent heavy vehicular traffic and related parking problems that obstructs the right of way of the residents and results in continuous use of horns ultimately disturbing peace in the area. The nuisance was further intensified by the leftover food and garbage left unheeded and posing serious health hazards.

The tribunal acknowledged that, Noise is regarded as a major pollutant under the provision of Noise Pollution (Regulations and Control) Rules 2000 and the Environment (Protection) Act, 1986. Pollution is wrongful contamination of the environment that causes material injury to right of an individual in form of health hazards and therefore violates Right to Life under Article 21 of the Constitution. Hence, these Rules require maintenance of ambient quality standards in respect of noise for different areas & zones as specified in the schedule annexed therewith. Further, it upheld that as per the prescribed procedure, any person requiring the use of loud speaker or public address system is required to take prior permission from the Police. Also, such use shall be prohibited between 10.00 pm to 6.00 am.

The Tribunal was satisfied that applicable laws have been violated. Therefore, it directed the Divisional Commissioner to coordinate and convene a meeting of all the concerned authorities and come up with a detailed Action Plan to reduce or mitigate noise pollution.

The Tribunal made definite recommendations to modify this Action Plan. It suggested the establishment of a call centre where noise pollution complaints can be lodged 24 x 7 hours by the citizens wherefrom the complaints be forwarded to the Area SHO and be dealt with confiscation and seizure of the amplifiers. The case must be brought before the area SDM within 24 hours of such seizure.

It further required devising of standard operating procedure (SOP) regarding control of noise pollution in industrial, hospitals and educational/institutional areas with monitoring mechanism and surveillance system, ban on use of generator sets of capacity of 5 KVA and above in the residential area between 10 pm to 6 am and use of decibel meters .

The tribunal suggested inclusion of provisions for compounding of offences of noise pollution by notification, increase of fine amount

It advised the inclusion of status of pressure horn in the vehicle at the level of issuing pollution control certificate, ban on manufacturing, distribution and sale of pressure horn and ban on modification of vehicular silencers in the NCT of Delhi, check and prohibition of entry of heavy vehicles fitted with pressure horns, launch of awareness campaigns via pamphlets in association with Traffic Police.

The tribunal directed the Police to effect Mandatory Challan and prosecutions of noise polluting vehicles, strict implementation laws, assistance of the area SDM in survey of the religious places causing noise pollution

Furthering the education of noise pollution and its adverse impacts the subject must be incorporated education materials in the curriculum of the schools and IEC activities amongst the students and youth in consultation with the DCs.

The tribunal prohibited the All India Panchayat Parishad from letting out the premises in future for marriages & other functions that may cause noise pollution problems. And directed the Municipal Corporation of Delhi to take appropriate action with regard to left over food & garbage.

The above case is a vivid example of proactive approach of the NGT in setting out in detail the environmental standards to be maintained especially with regard to Noise Pollution. The present case provides an insight into the dynamic attitude of NGT in encouraging executive action in environmental matters.

With the help of these decisions an insight can be drawn on the eco-friendly standpoint of the NGT. The NGT however, must be truly understood as the platform that promotes sustainable development and endeavors to balance developmental needs with environment protection. It must be commended for its straight forward attitude while dealing with erring agencies of the state. The NGT in its functioning has resorted to liberal construction of the applicable laws keeping in mind the spirit of the enactment in order to effectively deal with new situations.

CONCLUSION

The National Green Tribunal Act shall be heralded as a path-breaking effort on part of the Indian Legislator. With the enactment India has become the third country in the world after Australia and New Zealand to establish a specialist environmental court in line with international environmental law principles. It is thus a proud model for its neighbors in Asia in environmental jurisprudence.

Despite the unenthusiastic reception meted out to the NGT by the Central government in its establishment as a fully functional tribunal with well-equipped infrastructure, the Tribunal has performed commendably. It has carried out its duty of extending Access to Environmental Justice laudably with empathetic cooperation from the Supreme Court of India. The tribunal has used the strengthening provisions of the NGT Act to its advantage and thereby taken to task the violators of environmental law in India.

The enactment of National Green Tribunal Act, 2010 has successfully answered the need for constitution of environmental courts expressed by the Supreme Court, in Charan Lal Sahu v. Union of India as,“under the existing civil law damages are determined by the civil Courts, after a long drawn litigation, which destroys the very purpose of awarding damages so in order to meet the situation, to avoid delay and to ensure immediate relief to the victims, the law should provide for constitution of tribunals regulated by special procedure for

determining compensation to victims of industrial disaster or accident, appeal against which may lie to this Court on the limited ground of questions of law.”

The decisions of the NGT demonstrate effectiveness of specialist tribunals as enabled use of special knowledge and scientific expertise provide value addition in both process and substance in resolution of environmental problemswhich have come before the NGT. Varied subjects of environmental law involving environmental clearances for developmental projects including dams, steel plants, hydro- electric projects and thermal power plants; coastal zone regulations; encroachments on the floodplains; issues relating to pollution and imposition of environmental fines are dealt with ease owing to inclusion of scientific experts on the bench.

Creation of the National Green Tribunal symbolizes a new struggle to usher the country onto the path of Sustainable Development by balancing developmental needs and preservation and conservation of the environment. It has managed to dispose a case almost every third working day and on an average hears eight cases every day. Although the National Green Tribunal received a half-hearted welcome it has taken significant initiatives in order to attain rightful implementation of environmental law. Given the National Green Tribunal‟s broad mandate, a variety of issues have been addressed. These issues range from cases challenging environmental approvals granted to power projects, to those questioning governmental permission to use forest land, to issues of air and noise pollution. While in exercise of its powers under the Act, its diligent performance has resulted in firm and radical rulings. These speaking judgments effectively assured the right to access to environmental justice. The judgments of the National Green Tribunal provide testimony of its uninhibited approach resulting in radical transformation and enrichment of Indian environmental jurisprudence through its excellent work in record time.

The following words can rightly explain the role of the National Green Tribunal in strengthening environmental jurisprudence in India,“National Green Tribunal Act is a path breaking legislation which is unique in many ways. It will provide a new dimension to environment adjudication by curtailing delays and imparting objectivity. The Tribunal, given its composition and jurisdiction, including wide powers to settle environment dispute and providing relief, compensation including restitution of environment, is envisaged to be a specialized environmental adjudicatory body having both original as well as appellate jurisdiction”.

REFERENCES

1. Introduced by the 42nd Constitutional Amendment Act, 1976
2. The court usually passes short directions, the non-compliance of which amounts to contempt of court or fines.
3. David B. Rottman, Does Effective Therapeutic Jurisprudence Require Specialized Courts and Do Specialized Courts Imply Specialist Judges? 37 COURT REV. 22 (2000)
4. Scott C. Whitney, The Case for Creating a Special Environmental Court System, 14 WM. & MARY L. REV. 473 (1973)
5. Asian Development Bank, (2012). Environmental Governance and the Courts in Asia . Law and Policy Reform, Brief 1, 1

[6](1986) 2 S.C.C. 176

[7](1996) 3 S.C.C. 212

[8](1999) 2 S.C.C. 718 & (2001) 2 S.C.C. 62

[9](1986) 2 S.C.C. 176

[10](1996) 3 S.C.C. 212

[11](1999) 2 S.C.C. 718

[12](2001) 2 S.C.C. 62

1. Art. 247: Power of Parliament to provide for the establishment of certain additional Courts – Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional Courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List.” Read with Entry 13 of List I reads: “Participation in international conferences, associations and other bodies and implementing of decisions made thereat”.
2. Land and Environment Court of New South Wales (Australia) fits the Indian conditions as its jurisdiction combines appeal, judicial review and enforcement functions.
3. AIR 2012 SC

THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL: AN ASSESSMENT

[Vol 1/ Issue 2/ Apr 2015] [ISSN 2394-9295]

Dr. Meenu Gupta Ms. Chhavi Gupta Assistant Professor Research Scholar of Law

Amity Law School, Noida Amity Law School, Noida mgupta1@amity.edu cgupta1@amity.edu

ABSTRACT

India being a democratic country rest on three pillars -Legislature, Executive and Judiciary. For the growth of any nation it is necessary that these three pillars must be strong, independent and unbiased. Our Indian Constitution ensures separation of powers among these three bodies. The judiciary, which is considered to be the prominent pillar of Indian democracy, is now under a veil of suspicion. The working of the judges of the Supreme Court and the High Court‟s has come in for strong scrutiny and momentous doubts have been cast against the conduct of some judges of superior courts. The judiciary being a superior institution, there arises a strong need for institutional accountability in the Indian judiciary. In the light of this the Parliament came up with a proposed Judicial Standards and Accountability Bill, 2010.In this context this paper will discuss the declarations made by the bill in detail and the mechanisms through which the bill can be enforced in reference to the constitutional face of it.

Keywords: Judiciary, Judicial Standards and Accountability Bill, 2010, Legislature, Executive.

INTRODUCTION

The Judicial Standards and Accountability Bill pay a call on enforceable standards of conduct for judges. It requires judges to declare their assets, also that of their spouse and children, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. It provides for mechanisms where any person can complain against judges on grounds of misbehaviour or incapacity. The Bill intends to place on the Statute Book of the Nation an enactment providing for a complete Code on the following aspects-

1. To lay down judicial standards to be followed by all judges of Supreme Court and High courts and to provide for accountability of the Judges.
2. To establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a Judge of the Supreme Court or of a High Courts
3. To regulate the procedure for such investigation
4. For providing of the presentation of an address by the Parliament to the President of India for removal of a Judge, and
5. To provide for connected or incidental matters.

The present Bill seeks to repeal The Judges (Inquiry) Act 1968 which was enacted with a view to lay down the procedure for removal of the Judges of the Supreme Court and of the High Courts, but which does not contain the mechanism for dealing with the complaints filed by the Public against the Judges for their misconduct or incapacity and has not set judicial standards the judges should follow.

CONSTITUTIONAL PERSPECTIVE

The Constitution of India provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha.The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968. Currently two cases are under investigation: Justice Soumitra Sen of the Calcutta High Court, and Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court). Before this the only case under this process was that of Justice Ramaswamy, but Parliament did not pass the motion to remove him.

In recent years, a number of allegations of corruption against members of the higher judiciary have been made. In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and (b) In-house procedure within the judiciary. A concept paper on a National Judicial Commission was prepared by the National Advisory Council in 2005. The Judges (Inquiry) Bill, 2005 was drafted by the government and examined by the Law Commission. The revised Judges (Inquiry) Bill, 2006 incorporated almost all the Law Commission‘s recommendations, and sought to establish a National Judicial Council (NJC). That Bill has however lapsed now. The striking features of the Present Bill under assessment is that it defines certain important Terms like

―Assets possessed by judge and his family members,

―Incapacity,

―Judicial Standards,

―Liabilities,

―Misbehaviour, etc. for the purpose of providing their comprehensive meaning which were missing in the earlier Act.The Present Bill under assessment has exhaustively Defined ―misbehaviour which means and includes, conduct which brings dishonour or disrepute to the Judiciary, wilful or persistent failure to perform the duties, wilful abuse of Judicial Office, corruption or lack of integrity or committing an offence involving moral turpitude etc. Special mention requires to be made to the fact that the failure to furnish the declaration of assets or liabilities in accordance with the Provisions of the Bill amounts to ―misbehaviour.

Thus Wilful suppression of any material fact even related to a period before assumption of office which would have a bearing on the integrity, has been made to fall within the purview of ―misbehaviour. This would not only oblige the Judge to make a disclosure of such facts, but the past deeds and actions of a Judge would be under the scanner. It seems the intention of the legislature by giving such wider meaning to the term misbehaviour is to inspire confidence and faith in the Indian judicial system which otherwise is gradually losing.

STATUTORY PROVISION FOR JUDICIAL STANDARDS

―Judicial Standards to be followed by Judges, a Charter of Ethics, enshrined in the present bill would insist that every Judge shall continue to practice universally accepted values of judicial life as specified in the Schedule to the Bill and provides for certain ―DON‘Ts. Accordingly, no Judge shall contest the election to any office of a club or society or hold such elective office except in a society or association connected with the law or any Court. No Judge shall have close association with the individual member of the Bar who practice in the Court in which he is a Judge and shall not permit any member in his immediate family to appear before him. The Judge shall not hear and decide a case in which a member of his family, close relative or a friend is concerned. The ―DON‘Ts list further forbids the Judge to accept gifts or hospitality, except from his relatives, to hear and decide a matter of a Company or a society in which he or any member of his family holds share or interest unless the same is duly disclosed and there is no objection to his hearing of the matter, to speculate and to seek any financial benefit in form of perquisite or privilege attached to his office. He shall not have bias in his judicial work or judgments on the basis of religion or race or caste, sex or place of religion. Bias attitude of a Judge is an important factor while observing the principle of natural justice. In the Bill ―Bias has been defined as would mean predisposition of a Judge, against or in favour of one of the parties. Bias becomes discernible more often when the entire decision making process is over and the verdict is delivered.

The Bill appears quite anxious to establish and put in place credible and expedient mechanism for investigating into the Individual Complaints for misbehaviour or incapacity of a Judge either of the Supreme Court or the High Courts.

SCHEME OF FILLING COMPLAINTS TO THE OVERSIGHT COMMITTEE

It is because of this concern that the Bill authorises any person, making an allegation of misbehaviour or incapacity, to make a complaint to the Oversight Committee, who shall refer the same to the appropriate Security Panel. The Panel on being satisfied, that there are sufficient grounds for proceeding against the Judge or otherwise, shall submit a Report to the Oversight Committee within a period of three months. The Panel has all the powers of the Civil Court under the Code of Civil Procedure. This authorization will enable the Panel, in brief, to summon the witnesses and to record their evidence. The Oversight Committee is to constitute an Investigation Committee to investigate into the Complaints, recommended by the Panel in its Report. The Bill, while laying down the Inquiry Procedure of the Investigation Committee, insists on framing the definite charge, on the basis of which the Inquiry is to be held and, on giving the Judge Reasonable Opportunity of Being Heard. During the pendency of the Inquiry by the Investigating Committee, the Oversight Committee may recommend stoppage of assigning the Judicial Work to the Judge. On the receipt of the Report from the Investigation Committee, the Oversight Committee, upon their satisfaction, may dismiss the Complaint or issue Advisories or Warnings to the Judge, but when satisfied that there has been a prima facie commission of any offence, may recommend to the Central Government for the prosecution of the Judge. But, where the Oversight Committee has been satisfied, that charge(s) has been proved and that they are of serious nature warranting the removal, it shall request the Judge to voluntarily resign, and on his failure to do so, advise the President to proceed for the removal of the Judge, and the President thereupon shall refer the matter to Parliament, which shall be laid before both Houses of Parliament. On laying of the advice, the Central Government may move a motion, in either Houses of Parliament, for taking up the said advice for consideration by the House.

Over and above the said provisions relating to the Making of Complaint by an individual, the Bill proposes to authorize the Members of the Parliament to give a Notice of Motion, for presenting an address to the President, for the removal of a Judge. The Notice given in the House of People should be by not less than one hundred Members of that House, while in the Council of States, should not be by less than fifty Members.

Upon the admission of the Motion by the Speaker or the Chairman, the same shall be kept pending, and the matter shall be referred to the Oversight Committee for constitution of an Investigation Committee, which shall have to follow the procedure and submit a Report. If the Report contains a finding that a Judge is guilty of any Misbehaviour or suffers from any Incapacity and, if the Motion is adopted by each House of the Parliament, in accordance with the Constitutional Requirement, the Misbehaviour or Incapacity of the Judge shall be deemed to have been proved and, an address, praying for the removal of the Judge, shall be presented to the President in the same session.

The Bill thus authorizes both the Individual Complainants and the Parliament to initiate and accomplish the Disciplinary Actions against the Judges. But in each of the methodologies the process appears to be lengthy and time consuming.

The consoling features are that the Security Panel, the Oversight Committee and the Investigation Committee have been given the powers of a Civil Court. This would facilitate the summoning and enforcing of the attendance of witnesses and examining them on oath, along with the discovery and production of documents. The Investigation Committee has been clothed with the Powers of Search and Seizure.

The proposed Constitution of the National Judicial Oversight Committee reveals that everything has not been made ―in house. The Attorney­General for India and an eminent person nominated by the President shall be on the board, bringing in the element of ―other than the judiciary. This would not only strengthen the functioning of the Committee but would inspire the confidence of objectivity amongst the people desirous of making the complaint.

Confidentiality and Exemption from RTI:

• The Bill prohibits participants in investigations against a Judge from revealing any information regarding the investigation or the complaint without the written consent or direction of the Oversight Committee. The Bill imposes penalties on those violating the confidentiality provisions. Anyone violating these provisions may be imprisoned for up to one month, and may also be fined.
• The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005.
• Proceedings of the investigation committee will not be open to the public.

Disclosure of Assets and Liabilities:

Judges will be required to declare their assets and liabilities, and also that of their spouse and dependent children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. In addition, every judge will have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

KEY ISSUES AND THEIR ANALYSIS

There are certain key issues with regard to the Bill:

1. The composition of the bodies established to judge judges;
2. Whether provisions on confidentiality and penalties for frivolous and vexatious complaints deter persons from complaining against judges;
3. Whether minor measures can be imposed by a body comprising of non-judicial members, and
4. Whether judges should be able to appeal against orders removing them.
5. Whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill. The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
6. The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
7. The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.
8. The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.

AMENDMENT IN THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL

The Bill was introduced in Lok Sabha, the Bill was referred to The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for submitting its report on the Bill. The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice under the Chairpersonship of Dr. Abhishek Manu Singhvi has presented its 47th Report on THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010 before the Rajya Sabha on 30th August, 2011 and the report was also laid before the Lok Sabha on the same date.The said report contains certain recommendations and the committee‘s opinion on the bill.

That in View of this opinion and recommendations of the committee the necessary amendment was affected in the Bill which is as follows:

AMENDMENTS (BY STANDING COMMITTEE)

Clause 3(2)(f) of the Bill bars judges from expressing views in public on political matters or matters which are pending or likely to be decided by the judge. A proviso to this clause states that it will not apply to ―views expressed by the judge in his individual capacity on issues of public interest (other than as a Judge) during discussion in private forum or academic forum . The Committee recommended that the proviso be redone to clearly articulate the meanings of ―individual capacity , ―private forum , and ―academic forum .The Amendment inserts the phrase ―so as not to affect his functioning as a Judge after ―academic forum .The proviso now states that the bar will not apply to ―views expressed by the judge in his individual capacity on issues of public interest (other than as a Judge) during discussion in private forum or academic forum so as not to affect his functioning as a judge .

Clause 3(2)- The Bill requires judges to practise universally accepted values of judicial life. Some of these include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge‘s residence for professional work, (c) hearing or deciding matters in which a member of the judge‘s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.

Clause 3(2)(b)- No judge shall have close association with individual members of the Bar, particularly those who practice in the same court in which he is a judge.

Clause 53(1) is amended to reduce the punishment specified to up to 1 year rigorous imprisonment and a fine up to Rs 1 lakh.

A new clause (53)(3) is added to provide that ―No suit, prosecution or other legal proceeding shall lie against the complainant under this section in respect of anything which is in good faith done or intended to be done under this Act in accordance with the recommendation.

More consultations were organised by the National Campaign for Peoples‘ Right to Information (NCPRI), Media Information and Communication Centre of India, Inclusive Media for Change, Commonwealth Human Rights Initiative and the Accountability Initiative. Former Delhi High Court Chief Justice A. P. Shah, lawyer Prashant Bhushan, former Chief Information Commissioner Wajahat Habibullah and RTI activist Subhash Chandra Agrawal, besides NCPRI activists Shekhar Singh, Nikhil Dey, Venkatesh Nayak and Anjali Bhardwaj took part in the deliberations.The participants called for deletion of Sections 9 to 16 of the Bill dealing with the forming of a ―Complaints Scrutiny Panel besides the Oversight Committee. While Section 18 of the Bill envisages a five-member Oversight Committee to handle complaints received against judges, participants at the consultation differed with the Government on its composition, suggesting instead that a jurist and an eminent citizen selected through wider consultation be on the committee.

Justice Shah opined that the Complaints Scrutiny Panel which is proposed to be formed at the Supreme Court and at each High Court comprising serving judges to do preliminary vetting of complaints would not be able to function properly. Former Chief Justice S.H. Kapadia‘s cautionary advice also came on this bill that the independence of the judiciary must not be trampled upon by the process of making judges more accountable deserves serious examination. On the one hand, there is no doubt about the need for an alternative and more effective statutory framework to address complaints against judges, which have increased vastly in recent years. CONCLUSION

In my view it appears difficult at this juncture to appreciate the ultimate shape of the enactment when the Bill shall sail through the legislative process. But the present public perception sees the Bill as a positive step in the right direction, with a hope that experience would educate and teach us the ways and means to move towards a more beneficial and goal reaching legislation. However the proposed bill aims to keep a check on the conduct of the Indian Judiciary and making them accountable to the nation. The bill sets judicial standards and makes the judges accountable for their lapses. It is also mandatory for the judges to declare their assets and liabilities including those of their spouses and dependants. The bill is a step towards ensuring transparency, independence, impartiality and all above justice for all. Accountability must always be there.

It is necessary that the proposed bill should be strongly implemented as the corruption has extended its roots in the Indian judiciary. Time has come that this benevolent institution should be looked in closely and the proposed changes as stated by the Oversight Committee be ensured.

The Judicial Standards & Accountability Bill is the call for the hour to maintain the faith and trust of the citizens of India in the Institution of Judiciary, Law and Justice. We should undertake to make Judiciary free from corruption in our home country without compromising with the independent constitutional status of the judiciary. The Judicial Accountability Bill is definitely a step ahead to restore the fundamental values in the judicial system.

REFERENCES

1. Article 124 of the Constitution of India.
2. CBI gets Chief Justice nod to probe Nirmal Yadav Case, Hindustan Times, http://www.hindustantimes.com/CBI-gets-chief-justice-nod-to-probe-Nirmal-Yadav- case/Article1­594984.aspx; Justice Soumitra Sen to be impeached for misusing public funds, Times of India, http://timesofindia.indiatimes.com/india/Justice-Soumitra-Sen-to-be-impeached- for-misusing-public-funds/articleshow/6900744.cms.
3. Law Commission of India 195th Report on the Judges (Inquiry) Bill, 2005. January 2006.
4. ―A National Judicial Commission: Judicial Appointments and Oversight , Concept Papers, National Advisory Council, http://nac.nic.in/concept papers/Judicial_Commission.pdf.
5. Twenty First Report on the Judges (Inquiry) Bill, 2006. Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, 17th August 2007.
6. Section 12 of the Contempt of Courts Act, 1971.
7. C. Ravichandran Iyer v. Justice A.M.Bhattacharjee, 1995 (5) SCC 457.
8. Sarojini Ramaswamy v. Union of India (1992) 4 SCC 506 (Para 78).
9. http://www.prsindia.org/ (PRS Legislative Research).
10. www. Orfonline.org. (observer Research foundation).
    1. Judicial accountability or illusion the national judicial council bill by Prashant Bhushan.
11. Zee News.com.
12. The 47th Report on THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010 presented by Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice under the Chairpersonship of Dr. Abhishek Manu Singhvi before the Rajya Sabha on 30th August, 2011.
13. Notice of Amendments presented in Rajya Sabha on dated 2nd August 2013.
14. THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2012.

SOME REFLECTIONS ON THE SPECIAL WELFARE LAWS FOR WOMEN: SOCIAL AND LEGAL CONTOURS

[Vol 1/ Issue 2/ Apr 2015] [ISSN 2394-9295]

Dr. Meenu Gupta Associate Professor

Amity Law School, Noida mgupta1@amity.edu

ABSTRACT

In recent years, there has been a growing realisation that development goals cannot be achieved unless gender inequalities are removed and women are empowered to choose and decide their own welfare, the welfare of their families and the communities in which they live. Women constitute about half of the population and there is a shift in thinking about women‟s role in development. The new philosophy suggests that development was only made possible by the involvement of women in development projects. Our Constitution envisages a new social order, one feature of which is gender equality and justice. This constitutional wisdom of gender justice and equality is reflected in its Preamble, and Articles on Fundamental Rights, Fundamental Duties and Directive Principles of State Policy. Within the framework of a democratic polity, our laws, development policies, plans and programmes have aimed at women‟s advancement in different spheres. The Constitution has authorized the legislatures to pass special protective laws in favour of women to undo the injustices done to them for ages. A large number of such laws have actually been passed under this head. These laws can misguide anyone. They create an illusion that women enjoy a privileged position in our society and have special rights at the cost of men, but illusion is short-lived and vanishes the moment one starts delving with facts. It is indeed misfortune of Indian women that in spite of many international as well as national documents, that guaranteed gender equality, discrimination, violation of their human rights and violence against women continues.

CONSTITUTIONAL PROVISIONS

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14[1], 15 (1)[2], 15(3), 16[4], 39(a)[5], 39(d)[6], 39 A[7], 42[8], 46[9], 47[10], 51A (e)[11], 243 D (3)[12], 243

D (4)[13], 243 T (3)[14] and 243 T (4)[15] of the Constitution are of specific importance in this regard.

India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993. To translate this ideal into reality and to unshackle women from the bonds of tyrannical age old customs and practices and the improvement their states in society, the legislature has enacted several new statutes and amended the existing ones. The most pertinent of them are:

1. The Immoral Traffic [Prevention] Act, 1956,
2. The Dowry Prohibition Act, 1961,
3. The Medical Termination of Pregnancy Act, 1971,
4. The Indecent Representation of Women (Prohibition) Act, 1986,
5. The Commission of Sati (Prevention) Act, 1987,
6. The National Commission for Women Act, 1990,
7. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994,
8. The Protection of Women from Domestic Violence Act, 2005,
9. Prohibition of Child Marriage Act, 2006.

THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956

The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was enacted in pursuance of an

―International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of Others , signed at New York on 9th May, 1950. The Constitutional mandate under Article 23 is prohibition of trafficking and all forms of exploitation. This was aimed at putting an end to all forms of trafficking in human beings including prostitution and beggary. The Act came in to force on 1st May 1958. Its principal object is to prevent commercialization of the vice and trafficking among women and girls. The Act was amended in 1978 and than in 1986 and is now titled ―The Immoral Traffic (Prevention) Act . It is applicable to both men and women.

If this social evil is to be put end to, then vigorous legal and social measures against the male participant should also be taken. Further, the law mandates that the prostitute requires correction[16] and rehabilitation and the discretion to decide this is given to the judge who is usually a male. Naturally, the judge regards the prostitute as a nuisance and a bad woman from whom the civil society is to be protected.

The Act empowers special police officers to enter and search the brothels and to rescue and remove the women believer to be carrying on prostitution[17]. After a summary procedure[18] the rescued / removed woman is locked in a protective home[19] for either temporary or long term detention where the state takes care of her. Cases of Agra Protective Home[20] and the Nari Sadans[21] are known for their notoriety.

The woman can be released to the custody of any person who assures the Courts, on a Bond, her proper care, guardianship, education, training etc[22]. Usually the pimps or brothel owners pose as guardians and take the custody of the rescued woman. And the vicious cycle continues.

THE DOWRY PROHIBITION ACT, 1961

The customs that a community adopts in its infancy are generally those that promote its physical and moral well-being. If these customs are retained until new social needs give rise to new practices, then the progress of the society is almost certain. But since customs are obeyed by the multitude that are incapable of understanding the true ground of their expediency, some customs persist irrespective of harm they do to society. A usage that was reasonable generates a custom that is unreasonable. On such time honored custom in India, which has put women in exploitative, humiliating and perilous position, is the practice of dowry. The ancient Varadakshina‘, which was voluntarily given by the father of the bride, was a token gift attending the main gift of the daughter. What was given to the daughter at the time of Kanyadaan was regarded as her Stridhana. It was a sign of filial affection to the daughter who was leaving her natal home. It was also a source of financial security to the daughter in adverse circumstances. Subsequently, it becomes a symbol of status and prestige for both the parties. And in modern times it has degenerated into a commercial transaction.

Today, the evil of dowry has a spread by leaps and bounds. A Hindu custom, originally prevalent only in Northern Indian Communities has to-day spread nationwide crossing religious, regional and caste barriers. The practice has degenerated into a crime of greed and cruelty against Indian Women.

To curb this menace of dowry, the Dowry Prohibition Act of 1961 was passed. The Act was amended twice, first in1984 and then in 1986, to make it effective. This act is a small penal statute consisting of only ten sections. The act makes the giving and taking of dowry as well as its abatement an offence to be visited with imprisonment or fine or both[23]. A demand for dowry is also punishable[24]. An agreement entered into for giving or taking dowry so void[25]. Advertisements offering dowry are prohibited and the advertiser and the circulator of such an advertisement are liable to punishment[26]. Any dowry, if given, is held for the benefit of the wife[27]. Every offence under the Act is cognizable, non-bailable and non- compoundable[28]. The burden of proof is shifted on the defence. Persons prosecuted for the offence are presumed guilty unless they prove their innocence. Courts shall take cognizance of the offence even if the complaint is filed by social welfare organization[29].

The act provides for appointment of Dowry Prohibition officers and Establishment of Advisory Boards, which must consist of social welfare workers, two of whom must be women[30]. Amendments to the Dowry prohibition Act entailed a series of related changes on the I.P.C., Cr.P.C. and the Evidence Act. Sections 498A and 304B were added to the I.P.C. These sections deal with Cruelty and Dowry Death respectively. Section 174 of the Cr.P.C. was amended to secure post-mortem in case of suicide or death of a woman within seven years of marriage. Sections 113A and 113B was added to the Evidence Act, which raised a presumption of guilt against the husband or his relatives in case of dowry death.

Despite the Dowry Prohibition Act and the amendments made to I.P.C., Cr.P.C. and the Evidence Act, wives continue to be harassed, tortured and burnt in their homes. Dowry is yet being taken on a larger and vulgar scale. It requires a political as well as a social will to cleanse our society of this deep-rooted social evil. Legislation is an outcome of political will and action. Legislation is essential and necessary for its gives the necessary push as well as legal sanction. It can induce a social action, but alone by itself, it cannot eradicate a firmly embedded social ill. The centuries-old practice of dowry has acquired a social acceptance that cannot be wished away by mere legislation. One has therefore to approach it from another angle too. Being a social evil, it has to be fought on a social plane. It requires a multi- dimensional approach. The question of dowry must not be de-linked from deeper social realities and seen as an isolated issue.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

Despite the provisions of the IPC [Ss. 312-316] that punished persons causing miscarriage, preventing a female child from being born is commonplace in India. And therefore, the Medical Termination of Pregnancy Act, 1971 was enacted to regulate termination of pregnancies. This Act was amended in the year 2002 & again in 2005.

The Act legalises induced abortion by qualified Doctors on humanitarian and medical grounds. This is primarily a welfare measure to protect the health of women though it has also a family planning aspect. Women can now have induced abortion through qualified people. The service is free in public hospitals. All the documents are kept confidential. The act, consisting of just 8 sections, deals with the various aspects like the time, place and circumstances in which a pregnancy may be terminated by a registered medical practitioner. It legalizes abortion in case where there is a failure of contraceptives or where the pregnancy will adversely affect the physical or mental termination of pregnancy, consent of the pregnant woman is a must unless she is a minor or lunatic when her guardian‘s consent is required[31].

On the one hand, the act has totally failed to prevent female foeticide and the other hand it has impinged more heavily upon the pregnant woman than her husband who impregnates her. The consent of the pregnant woman is a myth. Her sex planning is conditioned by the patriarchal society.

Second, the act permits abortion only in certain circumstances. Abortion must be decriminalized because otherwise the woman is compelled to resort to hasty, last moment and illegal abortions by quacks, unethical and unqualified abortionists. In extreme cases, a woman resorts to self-abortion. Further, such abortions are often performed under unsanitary and unhygienic condition and without the safeguards normally present in a hospital. All this often results in the death of the unfortunate woman.

It is evident then that the act fails to achieve a balance / equilibrium between the right of the unborn to be born and the right of the woman, who bears, gives birth and rears the child, to decide whether she wants the child or wants to abort the foetus.

The Act creates a presumption, unless the contrary is proved, that the pregnant woman was compelled by her husband and relatives to undergo the technique and the husband and the relatives shall be punished if the technique is misused. Even the geneticist / gynecologist who owns the centre or is employed at such a centre and who renders services, whether honorary or otherwise, and who contravenes the provisions of the Act shall be punished. Every offence under the Act is cognizable, non-bailable and non-compoundable.

This law too has failed to do justice to the woman. The reason is that though the language of the Act appears to be gender-neutral, the law is not. It not only conceals but also sanitises to social reality that it is only the female fetuses that are being intentionally harmed. Ninety-eight percent of the abortions carried out after the sex determination tests are of the females. Similarly, though the Act talks about the written consent of the pregnant mother before the technique is administered to her, the law fails to recognize the social reality that a woman cannot make a free choice. She is socially conditioned to accept that if she does not give a male heir to the family, she has no social worth. Her husband will most probably divorce her or her husband may go in for a second marriage or an illicit relationship.

THE INDECENT REPRESENTATION OF WOMEN [PROHIBITION] ACT, 1986

The law relating to obscenity in this country is codified in Sections 292, 293, and 294 of the I.P.C. In spite of these provisions, there is a growing body of indecent representation of woman or reference to woman in publication, particularly advertisements that have the effect of denigrating women or are derogatory to women or corrupt public morality. Though there may be no specific intentions in these advertisements, publications, writings, paintings, figures, etc., have an effect of depraving or corrupting persons.

In order to prevent derogatory depiction of the women in media, The Indecent Representation of Women [Prohibition] Act, 1986, was passed. The act prohibits indecent representation of women through advertisements [32], publications, writings, paintings, figures etc., and also prohibits selling, distribution, and circulation of such matters[33]. Every offence under the act is cognizable and bailable[34].

This Act was passed with the objective of providing a separate Act in as much as a number of references to women in publications particularly in advertisements, which are considered obscene, are on the increase. The salient features of the Act are as follows: –

1. Indecent representation of women has been defined to mean the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or of being derogatory to or denigrating women or is likely to deprive, corrupt or inure the public morality, of any person or persons of any class or age group, notwithstanding that persons in any other class or age group may not be similarly affected.
2. All advertisements, publications etc., which contain indecent representation of women in any form are prohibited[35].
3. Selling, distribution, circulation of any books, pamphlets etc., containing indecent representation of women is prohibited[36].
4. Offences under the Act are made punishable with imprisonment of either description for a term extending to two years and fine extending to two thousand rupees on first conviction. Second and subsequent convictions will attract a higher punishment[37].
5. Under Section 4 of the Act exemptions have been given to the publication, which are in the interest; of science, literature, art or learning, which are used for religious purposes, any representation sculptured, engraved, painted or otherwise represented on any ancient monuments, archaeological sites, remains, any temple and any film in respect of which the provisions of part II of the Cinematographic Act, 1952 will be applicable.

But this Act fails to distinguish between indecent representation and obscenity as defined under section 292 of the I.P.C. The Act prevents a woman from being portrayed as sexual object in minimum cloths or as a seductress, but what about a woman who is projected in a saree but have an effect of depraving or corrupting persons by her obscene gesture and dual meaning words? Is this not indecent representation of womanhood?

THE COMMISSION OF SATI [PREVENTION] ACT, 1987

Commission of Sati reflects the man‘s desire to have absolute control over his wife not only in this world but also in the world thereafter, if any. It also sets to rest any question of inheritance or share in property that may have accrued to the widow from her deceased husband. This obnoxious and barbaric custom of Sati in which the widow is burnt alive on the funeral pyre of her deceased husband, was outlawed in 1829. In 1987, the Deorala incidence in Rajasthan, in which the 18 year- old Roop Kanwar was forced to commit Sati, set the country on flame. This incident took place despite the sections of IPC relating to murder, abatement to commit suicide, etc. worse still the role of the Government, judiciary and others was shocking. This entailed the enactment of the Commission of Sati [Prohibition) Act in 1987.

The Act provide for more effective prevention of the commission of Sati and its glorification and for matters connected therewith or incidental thereto, whatever attempts to commit Sati[38] and abates the commission of Sati, directly or indirectly[39], is punishable [death or life imprisonment and fine]. What is important is that the abettor is now disqualified from inheriting the property of the person in respect of whom such Sati is committed[40].

Glorification of Sati [defined exhaustively in the Act] is punishable[41] and the Collector/District Magistrate has the power to seize, properties and funds collected for the purpose of glorification of commission of Sati[42]. The Act also provides for removal of temples/structures where worship or ceremonies are performed with a view to perpetuate the honour of or to preserve the memory of any person in respect of whom Sati has been committed[43]. The Act provides for Special Courts to take cognizance of offences committed under the Act[44].

Despite the law, data clearly shows that in rural parts of Rajasthan commission of Sati is not perceived as a crime/wrong at all in social, legal or moral sense. It is viewed as a cultural phenomenon. One major drawback of the Act is that it punishes the woman who attempts to commit Sati. This reinforces the assumption that the act of Sati arises out of choice or free will of the unfortunate widow. But the reality is something else.

THE NATIONAL COMMISSION FOR WOMEN ACT, 1990

The enactment of the National Commission for Women Act, 1990 was a step in the right direction. It was a measure taken to secure a better status for women in India. This is evident from the numerous functions that the Act envisages to be discharged by the Commission.

The act provides for the constitution of the National Commission[45] for Women, the term of office and conditions of service of the Chairperson and Members, officers and others employees of the Commission, salaries and allowances to be paid to the Chairperson, Members, Officers and others, vacancies, committees to be appointed by the Commission[46], procedures to be regulated by the Commission[47] and most important the various functions to be discharged by the Commission[48].

The National Commission for Women was constituted under the Act on 31st January, 1992 to exercise powers and perform functions assigned.

It is paradoxical that the Commission is entrusted with the function of improving the status of women in India, but it is not assigned any constitutional status. Further, the Commission can make only recommendations and send them to respective bodies for action. It has limited judicial powers and cannot provide direct relief to women in distress.

The Commission on the basis of the guidelines in the Vishaka case[49], prepared the code of conduct at workplaces and also for students. It also prepared a scheme in pursuance of the Hon‘ble Supreme Court‘s judgment in Delhi Domestic Women‘s Forum v. Union of India[50], which provided for compensation, counselling and rehabilitation of women victims.

Examining the role of Kerala Women‘s Commission under the Act of 1995, the Kerala High Court in Joseph

1. State of Kerala[51], negated the contention that the functions of the commission as mentioned under the Act do not take in its sweep determination of relationship between a man and woman. The Court held that while performing its functions, the commission shall have every power and jurisdiction to inquire into any unfair practice alleged. The mere fact that the commission would not have power by itself to take decision after entering into a finding or unfair practice does not mean that it does not have power to inquire into unfair practices. That apart, it would be well made from a reading of the provisions contained in Section 17 of the Act of 1990, that while making an inquiry into an unfair practice, the commission on receipt of a complaint from any woman alleging that she has been subject to any unfair practice, can proceed to inquire into the matter and take a decision thereon and if the commission may find that there is unfair practice, it shall recommend to the Government the action to be taken thereon.

In spite of this the Commission has a long way to go. In order to uplift the Indian women, the Commission will have to review all the laws – substantive as well as procedural and recommend either enactment of new laws that are gender just or amendment to the existing ones to make them gender sensitive. This task is rendered more onerous today in view of the government policies of globalization, liberalization and privatization, which have not only reinforced the old in equities but also generated new inequities between men and women.

THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994

India has always possessed the hateful legacy of killing the female child. Earlier, because scientific techniques were not advanced and it was impossible to determine the sex of the child, the killing of the female child took the form of adding opium to the infants‘ milk or by suffocating the infant under the mother after birth or else by plainly ill-treating daughters. Now it is given a sophisticated aura of education by the perverse use of scientific technology. The government realized that the abuse of techniques, which were originally used to detect genetic disorders or chromosomal abnormalities or congenital abnormalities or sex-linked diseases, was leading to female foeticide which was discriminatory against the female sex and also affected the dignity and status of women. For the above reasons, Parliament passed the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 which came into force on 1-1-1996. The Act has been renamed the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Further it has been amended in the year 2002.

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 consisted 34 sections spread over eight chapters. The Act regulates genetic counseling centers, laboratories, clinics[52] and also prenatal diagnostic techniques[53]. It envisages the establishment of a Central Supervisory Board[54] and Advisory Committee[55]. The Act also prescribes penalties for the offences mentioned therein[56] and gives the power to make rules[57].

The Act provides regulation for the use of prenatal diagnostic techniques only for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of prenatal sex determination leading to female foeticide.

Section 6 of the Act prohibited any prenatal diagnostic technique tests including ultrasonography for determining the sex of a foetus[58]. Every offence under this Act is cognizable, non-bailable, non- compoundable[59] and triable by a Metropolitan Magistrate or Judicial Magistrate of the First Class[60].

Unfortunately, despite of the provisions of this Act determination of the sex of a foetus and abortion of female foetus continues.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and Beijing Declaration and the Platform for Action (1995) have acknowledged this. The Phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain.

The Protection of Women from Domestic Violence Act is passed by the Parliament in response to a worldwide demand for such legislation and it is hoped that this legislation will act as a deterrent to the occurrences of domestic violence and assures the families peaceful coexistence among their members.

The Act has created two novel agencies to help the implementation of several provisions. The first one is the post of a Protection Officer[61] and the other is an institution called service provider[62]. They are both bound to help the aggrieved woman right from the moment they learn and with the filling of domestic event.

The Act as designed serves the purposes for which it is enacted viz. Protection of Women form Domestic Violence both explicit and dormant as widespread evil in several families. The victims may be wives, sisters, and mothers or any other female relative living in the shared household in domestic relationship. The Respondents are males and may also be female relative of the Respondent when the complaining woman is the wife or a person living in married relationship with the respondent. While complainant can be woman only, it is open to a male child to carry complaint under this Act provided he does so along with his mother[63]

The Act is a central enactment the enactment of which is entrusted to the State Government. It is the State Government that appoints the Protection Officers, recognizes the Service Providers and authorizes the Medical Facility and Shelter-home to the aggrieved woman[64]. The Magistrate and the Protection Officers are the active agents who enforce the provisions of this Act.

The moment a domestic violence takes place, the aggrieved woman may report the event to the Magistrate who refers the matter to the Protection Officer attached to the Court[65]. She can also approach the Service Provider or the Protection Officer for helps. They both can provide the aggrieved woman immediate medical help and residence to live in a shelter home. The protection Officer/Service Provider shall file what is called Domestic Incident Report before Magistrate, who if the medical help and residence are not already provided may direct the Protection Officer to arrange for the aggrieved woman those facilities[66].

The Magistrate receiving the Domestic Incident Report which is equivalent to FIR may take up enquiry in the case which is hereafter called the Domestic Violence case and issue a notice to the respondent who is the perpetrator of violence to be served within two days and fix the third day as the date of hearing Meanwhile, If the Magistrate deemed it fit may issue ex-parte interim orders against the Respondent and direct the Protection Officer to seek that they are implemented by the Respondent. Such orders may be passed even after the appearance of the respondent as well pending issuance of relief prayed for by the aggrieved woman[67].

To provide relief the Magistrate can issue- (1) Protection orders[68] (2) Residence Order[69] (3) Maintenance Order[70], (4) Custody Orders[71] and (5) Compensation orders[72]. Protection orders include orders of injunction restraining the Respondent not to continue the acts of domestic violence against the aggrieved woman. Maintenance Orders include grant of maintenance to the aggrieved woman and her children if they are with her or for restoration of children if they are not in her custody. Compensation orders or orders directing the Respondent to pay for all the damages the aggrieved woman suffered physically and mentally by reason of domestic violence.

Magistrate tries the domestic violence case in a summary manner and he shall conclude the case within six months[73] or in the manner in which the Magistrate under provisions of Criminal Procedure Code holds Security Proceedings. The Magistrate through the Protection Officer will see to it that the Respondent if necessary through the help of the police duly complies with the orders of the Magistrate. It is only when the Respondent fails to comply with the orders of the Magistrate the Respondent becomes liable to be prosecuted for defying the orders of the Magistrate.

All orders of the Magistrate are appeallable to the Sessions Court which disposes of the appeal a though it is as criminal appeal filed under Criminal Procedure Code. There is no revision to the Sessions Court or the High Court against the orders of the Magistrate. The order of the Session Court not being appealable, the High Court may entertain revision against the orders of the Session Court[74].

The Act by itself does not punish the perpetrator of domestic violence against the woman aggrieved. But if the case discloses any offences punishable under Indian Penal Code or any other penal law, or under the Dowry Prohibition Act or under Section 498A of the Criminal Procedure Code, the Magistrate may frame appropriate charges against the Respondent and try the case by himself or commit it to the Session Courts as the case may be.

There are a few oddities in this enactment. The Magistrate who takes congnizance of the case is also invested with the responsibility of executing his own orders even without being moved for their execution, in the interests of the aggrieved women in whose favour he issues them. Another oddity is that Protection Officer appointed under this Act apparently looks like a person to render voluntary public service without anybody approaching him with a complaint, he is made liable for prosecution if he commits any breach of his duties entrusted to him by the Magistrate[75]. The third oddity is that in cases where there is no evidence except that of the aggrieved woman, her testimony shall be relied upon by the Magistrate in deciding incidence of violence but not the overall circumstances. These exceptions to the normal rules of evidence are justified in that the domestic violence mainly occurs in a private domestic environment beyond the public gaze.

THE PROHIBITION OF CHILD MARRIAGE ACT, 2006

Child marriage is an age-old problem in India. Child marriages are rampant in various Indian States especially in Rajasthan, Uttar Pradesh and Bihar. Even Today thousands of children, even babies in arms, are married in Rajasthan on auspicious days such as Akshaya Tritiya. One may recall the case of Bhanwari Devi, a thirty seven year old social worker, who was raped just because she tried to stop the marriage of a one-year-old child. Economic and sometimes even social compulsions force the parents to get minor daughters married. If a girl is married before puberty, her parents may not have to pay any dowry.

It is a well-known fact that child marriages affect not only the quality of marriage but also the next generation. Moreover, the child-bride suffers the most. Early marriage of a girl results in a social waste. It deprives her of educational opportunities. She also exposes herself to early and repeated pregnancies. Child marriage is a crime, which often results in the death of the child bride and sometimes maims her for life. It is an evil graver than sati because it is far more devastating in its consequences and more insidious in its working. Unfortunately, such on evil and crime go unpunished in the name of social or religious validity.

To tackle this evil/crime, The Child Marriage Restraint Act was passed in 1929. This Act, popularly known as Sarda Act, was amended in 1978 and repealed in 2006 and is now titled ―The Prohibition of Child Marriage Act, 2006 . It applies to all persons in India irrespective of their community, religion and nationality. Under this Act, the marriageable age for the boy is twenty-one years and for the girl eighteen years[76]. The Act prohibits and prescribes punishments for parents and guardians who solemnize child marriages[77]. But it does not affect the validity of the child marriage. However, every child marriage should be voidable at the option of the contracting party who was a child at the time of the marriage[78]. A child begotten or conceived of child marriage should be deemed to be a legitimate child in spite of such marriage being annulled by a decree of nullity[79]. Marrying a child by a male adult is punishable with rigorous imprisonment up to two years or fine up to one lakh rupees or both[80]. Promoting or permitting solemnization of child marriage is also punishable with rigorous imprisonment up to two years or fine up to one lakh rupees or both[81]. Every offence under the Act is cognizable, non-bailable[82].

Despite the fact that many years have lapsed after the passing of the Act, child marriages are rampant in India. The Act has failed to achieve its purpose because it does not peep into the causes that are responsible for this harmful practice.

CONCLUSION

The Constitution has authorized the legislatures to pass special protective laws in favour of women to undo the injustices done to them for ages. A large number of such laws have actually been passed under this head. These laws can misguide anyone. They create an illusion that women enjoy a privileged position in our society and have special rights at the cost of men, but illusion is short-lived and vanishes the moment one starts delving with facts. It is then that the real picture emerges and we realize that the whole bulk of this protective legislation is a very modest attempt to combat the deep-rooted and all pervasive evil of horrendous crimes that are committed against women every day. These were committed in that past & they are bringing committed in the present also. There seems to be no let up in man‘s brutality towards women in spite of protective laws to defend women.

It is impossible to de-link the problem of crimes against women from deeper social realities and to analyse the problem of the efficacy of protective laws in seclusion. Phenomenon like dowry demands, ill treatment of women, eve teasing, superior status of men, privileged position of sons-and bias against daughters have massive social sanctions behind them and cannot be removed despite progressive laws.

A critical examination of the legal provisions revealed that most of the protective laws for women suffer from various loopholes or shortcomings. They are complicated and ambiguous, and instead of solving the issues make the situation more complex. Often theprovisions of the laws are not clear and precise; it makes them the battleground for legal interpretation in the hierarchy of Courts. Certain laws remain confined to statue books, because the enforcement machinery is inadequate, or the penalties are not awarded according to the stipulations. Many of these protective laws like the Act prohibiting Sati were passed in such a great hurry that there was no time even to think about the various aspects of the enactment. Indecent Representation of Women is a classic example of a hurriedly passed law. The Act was passed with a lot of urgency yet the rules implementing that law were not made for years. This shows the callous attitude of the executive and the unenthusiastic reaction of the enforcement authorities.

The Dowry (Prohibition) Act is just one example,of the innumerable Acts that do not take into account the social realities of a woman‘s life. Such laws can only be a palliative measure to steer the state out of a problem and help it to get out of an uglysituation by appeasing a particular group of people. The laws on Sati and Cruelty against Married Women are some other examples of laws, which cannot be enforced effectively. In spite of a number of changes in the laws, the dowry problem not only continues, but also has assumed alarming proportions. It has even spread to community where it did not exist, thereby putting the efficacy of the system in doubt. The continued difference in various personal laws and absence of adequate enforcement mechanisms has made many of the other laws ineffective.

The Act on Prostitution remains a paper tiger because there is no responsible agency to monitor its use or abuse. The Actneglects the root cause of this evil. It has failed to plug the supply and the demand position of the flesh market, which remains unchanged. In fact, the new Act has only pushed the trade underground, but it is flourishing nevertheless. The call girl culture, liaison girls, use of female figures in the advertisement of consumer products, all ensure renewed life to this profession because the Act neither prohibits prostitution altogether nor gives legitimacy to promiscuous sex activity; by keeping a neutral attitude to the profession itself, the Act seeks to identify and deal with the crimes connected with it. The law starts with the presumption that it is an inevitable evil and cannot be curbed. It treats prostitutes, the victims of social injustice, as criminals and is silent on the punishment of those who hire them. Girls arc either raped or molested and then sold into the business. Sometimes extreme poverty forces them to take to prostitution. There were instances of channelising young girls into prostitution through religious and cultural sanctions also.

Some of the laws, which were passed after much deliberation and thinking are also, not better.

Indian female lives in two types of reality, social & legal. Legally she can claim perfect equality with male, but socially she is still neglected & oppressed. It is ironical that while on the one hand, we place a woman in her adult form on a very high pedestal. We honour and worship her as Saraswati, the Goddess of learning, as Lakshmi, the Goddess of wealth and as Durga, the Goddess of power.

On the other, hand we adopt double standards as far as human rights are concerned. Notwithstanding Constitutional guarantees, international instruments and laws for her protection, the girl child remains the most marginalized from any kind of development. No law, custom, tradition, culture or religious consideration can be invoked to excuse discrimination against her. The fight for gender justice is not a fight against men; it is a fight against traditions that have chained our daughters; a fight against attitudes ingrained in society. The census of 2011 presents a sad picture of sex ratio in our country. We must rise and combat this.

With a view to convert the equality of women from de jure to de facto, educating the female would play an important role. So long as there is disparity between the male and female at education level, the difference between the position of men and women would continue to exist. It is unfortunately true that a woman has, even in her own home is given a rather subordinate role to play. For the emancipation for woman in every field, economic independence is of paramount importance. Along with economic independence, equal emphasis must also to be laid on the total development of women – creating awareness among them about their rights and responsibilities – the recognition of their vital role and the work they do at home. If necessary, a social system must evolve. The society must respond and change its attitude. Unless the society recognizes her basic human rights, women- empowerment would only be lip service with no tangible result.

To some extent, judicial activism has played a vital role in removing the discrimination against women and protecting her from the act of violence in almost all walks of life. The gender sensitive approach of the judiciary, as is reflected in a number of decisions is a ray of hope.

REFERENCES

• 1. Equality before law for women
  2. The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
  3. The State to make any special provision in favour of women and children
  4. Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
  5. The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood
  6. equal pay for equal work for both men and women
  7. To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities
  8. The State to make provision for securing just and humane conditions of work and for maternity relief
  9. The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation
  10. The State to raise the level of nutrition and the standard of living of its people
  11. To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women
  12. Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat
  13. Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women
  14. Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality
  15. Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide
  16. Section 10-A, the Immoral Traffic [Prevention] Act, 1956.
  17. Section 15, the Immoral Traffic [Prevention] Act, 1956.
  18. Section 22-B. the Immoral Traffic [Prevention] Act, 1956.
  19. Section 19 & 21. the Immoral Traffic [Prevention] Act, 1956.
  20. Upendra Baxi (Dr.) v. State of U.P.,(1983) 2 SCC 308.
  21. Radha Bai v. Union Territory of Pondicherry (1995) 4 SCC 141.
  22. Section 17 &17-A. the Immoral Traffic [Prevention] Act, 1956.
  23. Section 3. the Dowry Prohibition Act, 1961.
  24. Section 4. the Dowry Prohibition Act, 1961.
  25. Section 5. the Dowry Prohibition Act, 1961.
  26. Section 4-A. the Dowry Prohibition Act, 1961.
  27. Section 6. the Dowry Prohibition Act, 1961.
  28. Section 8. the Dowry Prohibition Act, 1961.
  29. Section 7. the Dowry Prohibition Act, 1961.
  30. Section 8-B. the Dowry Prohibition Act, 1961.
  31. Section 3. the Medical Termination of Pregnancy Act, 1971.
  32. Sec 3, the Indecent Representation of Women [Prohibition] Act, 1986.
  33. Sec 4, the Indecent Representation of Women [Prohibition] Act, 1986.
  34. Sec 8, the Indecent Representation of Women [Prohibition] Act, 1986.
  35. Sec 3, the Indecent Representation of Women [Prohibition] Act, 1986.
  36. Sec 4, the Indecent Representation of Women [Prohibition] Act, 1986.
  37. Sec 6 , the Indecent Representation of Women [Prohibition] Act, 1986.
  38. Sec 3, the Commission of Sati [Prohibition) Act in 1987.
  39. Sec 4, the Commission of Sati [Prohibition) Act in 1987.
  40. Sec 18, the Commission of Sati [Prohibition) Act in 1987.
  41. Sec 5, the Commission of Sati [Prohibition) Act in 1987.
  42. Sec 8, the Commission of Sati [Prohibition) Act in 1987.
  43. Sec 7, the Commission of Sati [Prohibition) Act in 1987.
  44. Sec 9 & 11, the Commission of Sati [Prohibition) Act in 1987.
  45. Sec 2, the National Commission for Women Act, 1990
  46. Sec 8, the National Commission for Women Act, 1990
  47. Sec 9, the National Commission for Women Act, 1990
  48. Sec 10, the National Commission for Women Act, 1990 49. (1997) 6 SCC 241.

50. (1995) 1 SCC 14.

51. AIR 2006 Ker 191.

1. Sec 3, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
2. Sec 4, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
3. Sec 7, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
4. Sec 17, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
5. Sec 23, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
6. Sec 32 & 33, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
7. Sec 6, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
8. Sec 27, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
9. Sec 28, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
10. Sec 8, the Protection of Women from Domestic Violence Act, 2005.
11. Sec 10, the Protection of Women from Domestic Violence Act, 2005.
12. Sec 3, the Protection of Women from Domestic Violence Act, 2005.
13. Sec 11, the Protection of Women from Domestic Violence Act, 2005.
14. Sec 4, the Protection of Women from Domestic Violence Act, 2005.
15. Sec 9, the Protection of Women from Domestic Violence Act, 2005.
16. Sec 12, the Protection of Women from Domestic Violence Act, 2005.
17. Sec 18, the Protection of Women from Domestic Violence Act, 2005.
18. Sec 19, the Protection of Women from Domestic Violence Act, 2005.
19. Sec 20, the Protection of Women from Domestic Violence Act, 2005.
20. Sec 21, the Protection of Women from Domestic Violence Act, 2005.
21. Sec 22, the Protection of Women from Domestic Violence Act, 2005.
22. Sec 12(5) , the Protection of Women from Domestic Violence Act, 2005.
23. Sec 29, the Protection of Women from Domestic Violence Act, 2005.
24. Sec 33, the Protection of Women from Domestic Violence Act, 2005.
25. Sec 2(a), the Prohibition of Child Marriage Act, 2006.
26. Sec 10, the Prohibition of Child Marriage Act, 2006.
27. Sec 3, the Prohibition of Child Marriage Act, 2006.
28. Sec 6, the Prohibition of Child Marriage Act, 2006.
29. Sec 9, the Prohibition of Child Marriage Act, 2006.
30. Sec 11, the Prohibition of Child Marriage Act, 2006.
31. Sec 15, the Prohibition of Child Marriage Act, 2006.

RIGHT TO KNOW VS. RIGHT TO PRIVACY: PROBLEMS AND PRACTICALITIES

[Vol 1/ Issue 3/ Oct 2015] [ISSN 2394-9295] Dr. Bhavish Gupta

Associate Professor Amity Law School, Delhi

Email ID: bgupta1@amity.edu

ABSTRACT

The right to privacy and the right to information are both essential human rights in the modern information society. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by government bodies. Where the two rights overlap, states need to develop mechanisms for identifying core issues to limit conflicts and for balancing the rights. This paper examines legislative and structural means to better define and balance the rights to privacy and information.

Right to information and privacy laws can both complement and conflict with each other, depending on the situation. It should again be emphasized that the RTI and privacy are not always conflicting rights. They are both laws designed, in part, to ensure the accountability of the State. The important issue is how the legislation and the implementing and oversight bodies balance the two rights

Keywords: Right to Information, Right to Privacy, Human Rights, Accountability, Fundamental Right.

INTRODUCTION

“Civilization is the progress toward a society of privacy. The savage‟s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men”.

Privacy is the recognition of the one‘s right to be let alone and have his personal space private. It is a modern concept to have right of privacy and its need. It is because of increasing individualistic society in which the focus has shifted from society to the individual. Earlier, the law only provided protection against physical harm to a person or his property. As civilization progressed, the personal, intellectual and spiritual aspects of the human personality gained recognition and the scope of the law expanded, and protection was given to these needs.

According to Black‘s Law Dictionary ―right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned .

Right to privacy is not enumerated as a Fundamental Right in the constitution of India. The scope of this right first came up for consideration in Kharak Singh‟s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects. The minority decision of Subba

Rao J. deals with this right. In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Article 19(1)(d) and 21. Surveillance must be to prevent crime and on the basis of material provided in the history sheet. In the context of an anti-terrorism enactment, it was held that the right to privacy was subservient to the security of the State and withholding information relevant for the detention of crime can‘t be nullified on the grounds of right to privacy.

INTERNATIONAL TREATIES AND PRIVACY

In no country does the right to privacy is given the status of a specific and constitutionally valid legal right. Law of Privacy has evolved mainly through the judicial pronouncements. Despite there being lack of specific constitutional recognition, the right to privacy has long ago given a place in international charters on human rights such as Article 17 of the International Covenant on Civil and Political Rights, 1966 which India has ratified, reads that:

―No one shall be subjected to arbitrary or unlawful interference with his privacy, family, human or correspondence, or to lawful attacks on his honor and reputation and Everyone has the right to respect for his private and family life, his home and his correspondence. Article 8 of the European Convention on Human Rights, 1950 reads that: ―Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals.

THE LAW ON PRIVACY IN INDIA

In India, the right of privacy is not an explicit fundamental right but has nonetheless gained a constitutional recognition. Privacy‘ is not among the various reasonable restrictions imposed on the right to freedom of speech and expression given under Article 19(2). However, this lacuna has not prohibited the courts from making out a constitutional right to privacy be it a creative understanding of the right to life under Article 21 and right to freedom of movement under article 19(1)(d).

The right of privacy in India has been derived out from two sources: the common law of tort and constitutional law. Under the common law, a private action for the damages for unlawful incursion of privacy is held to be maintainable. The printer and the publisher of a journal, magazine or book are to be held liable for any damage, if they publish any matter regarding the private life of an individual which includes his family, married life, procreation issue, parenthood, child bearing, education, etc. without his consent.

There are two exceptions to this rule:

1. That the right of privacy does not continue to exist once the publication made is of the matter of public record and;
2. When the matter published relates to the discharge of official duties by a public servant, an action is not held maintainable unless the publication is proved to be false or malicious.

Under constitutional law, the right to privacy is innate in the fundamental right to life and liberty guaranteed by Article 21 of the constitution. This would also include the right to be let alone. The

constitutional right of privacy flowing from article 21 must, however, be balanced as against the fundamental right given to the media to publish any matter which is in public interest.

The first few cases that presented the Indian Supreme Court with the opportunity to develop the law on privacy were cases of police surveillance. The court then examined the constitutional validity of such legislations that empowered the police officers to keep a secret watch on the movements of any individual. The first of such cases is Kharak Singh v State of U.P, which challenged the constitutional validity of Regulation 236 of the U.P. Police Regulations which permitted surveillance. The majority on the bench struck down the Regulation 236(b) which authorized such domiciliary visits as being unconstitutional but upheld the other provisions under that regulation. The majorities were defensive to the idea of recognizing a right to privacy and dismissed the claim on the ground that there could be no fundamental right to protect mere personal sensitiveness. This view was based on the conclusion that the infringement of a fundamental right must be both direct and tangible so that the freedom guaranteed under Article 19(1) (d) is not infringed by a watch being kept over the movements of a suspect.

It was, however, the minority view which was expressed by Justice Subba Rao which laid the foundation for the development of the law of Privacy in India. Justice Subba Rao held that, ―the concept of liberty‘ in Article 21 was broad enough to include privacy and that a person‘s house, where he lives with his family is his castle and that nothing is more deleterious to a man‘s physical happiness and health than a calculated interference with his privacy. The conclusion was that surveillance by domiciliary visits and other acts under Regulation 236 was ultra vires Article 19(1) (d) and Article 21.

In Govind v State of M.P. also a case of surveillance under the Madhya Pradesh Police Regulations, the Supreme Court acknowledged a limited right to privacy. Yet, the court upheld the impugned regulation which authorized domiciliary visits in it‘s entirely. This was on the ground that the object of the provision was the prevention of crime.

Malak Singh v State of P&H was yet challenge to the constitutionality of police powers of surveillance, this time under the Police Act and the Punjab Police Rules. The Supreme Court said that, ―the regulations that authorized surveillance for the prevention of crime and justified the maintenance of history sheets and surveillance registers as confidential documents are valid. The court observed that surveillance of persons who did not fall within the category mentioned under the impugned regulation, or for reasons unconnected with prevention of crime or excessive surveillance would entitle a citizen to the protection of the court. But the law on privacy was taken no further.

The Supreme Court in such cases touched upon the rights of the individual to privacy vis-à-vis invasions by journalists in Sheela Barse v Union of India, Prabha Dutt v Union of India and also in State v Charulata Joshi. In all these cases, journalists sought such permission from Supreme Court to interview and photograph prisoners. Although the issue of privacy is not directly dealt with, the court unreservedly recognized the right to privacy by holding that, the press has no absolute right to interview or photograph a prisoner but could do so only with the consent of prisoner.

In Naz Foundation Case (2009) Delhi HC gave the landmark decision on consensual homosexuality. In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right to privacy held to protect a ―private space in which man may become and remain himself. It was said individuals need a place of sanctuary where they can be free from societal control where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature.

RIGHT TO PRIVACY: PERMISSIBLE RESTRICTION

Intrusion into privacy may be by-

1. Legislative Provision- Legislative intrusion must be tested on the touchstone of reasonableness as guaranteed by the constitution and for that purpose the Court can go into proportionality of the intrusion vis-à-vis the purpose sought to be achieved.
2. Administrative/Executive order- So far as administrative or executive action is concerned it has to be reasonable having regard to the facts and circumstances of the case.
3. Judicial Orders- As to judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for protection of the particular State interest.

In addition, as stated earlier, common law did recognize rare exceptions for conduct of warrantless searches could be conducted but these had to be in good faith, intended to preserve evidence or intended to prevent sudden anger to person or property.

LATER DEVELOPMENTS IN RIGHT TO PRIVACY

Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in the

1. 43 of Information Technology Act which makes unauthorized access into a computer resource invoke liability. Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of public interest‘ and public morality‘. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special. Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of personal liberty‘. Though the Court generally applies the test of public interest‘ or public morality‘ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the

reasonable restrictions under Article 19. The right to privacy may come in conflict with the investigation of police in several aspects. Narco- analysis, polygraph test and brain mapping tests, in application, make unwarranted intrusion into the right to privacy of a person. The Supreme Court was acknowledging the individual right to privacy by declaring these tests inhuman and unconstitutional. The Supreme Court in Directorate of Revenue and Anr v. Mohammed Nisar Holia cited the US Supreme Court judgment which held

thermal imaging‘, a sophisticated sense enhancing technology which when kept outside the residential house of a person can detect whether the inmate has kept narcotic substance within as infringement on the right to privacy of the said person. The Court discouraged the unnecessary infringement of the right to privacy of persons and held that no authority shall be given untrammeled power to infringe the right to privacy of a person, the Court held while reversing the conviction for non-compliance of statutory requirement of search and seizure. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in case of this nature, the least that a Court can do is-to see that such right is not unnecessarily infringed.

RIGHT TO KNOW

The idea of Right to Information started taking shape in the 1970s only, with the liberal interpretation by the judiciary of various fundamental rights specifically the right to freedom of speech and expression. The legal position with regard to the right to information has developed through several Supreme Court decisions given in the context of the fundamental rights in Constitution of India, but more specifically in the context of the Right to Freedom of Speech and Expression Article 19, which has been said to be the obverse side of the Right to Know, and one cannot be exercised without the other. The interesting aspect of these judicial pronouncements is that the scope of the right has gradually widened, taking into account the cultural shifts in the polity and in society.

In the case of Bennett Coleman and Co v. Union of India in 1973, the majority opinion of the Supreme Court then put it, freedom of speech and expression includes within its compass the right of all citizens to read and be informed.‘ The 1981 judgment in Manubhai D. Shah v. Life Insurance Corporation reaffirmed the point:

The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people‘s right to know‘.

There have been numerous cases favoring disclosure of government information and transparency. As a result of a lack of clear legislation on this, people had to knock at the doors of courts every time they wanted to enforce this right. Courts have almost always responded positively. But this course at best restricted enforcement to the aware and the literate for their own limited concerns. The common citizen had neither the means nor the time and inclination to get into convoluted legal processes and even public interest litigation was a tool which could reach only a few. The movement for the RTI received a fresh impetus from a courageous and powerful grassroots struggle of the rural poor for the right to information to combat rampant corruption in famine relief works. This struggle was led by a people‘s organization, Mazdoor Kisan Shakti Sangathan (MKSS) that literally means organization for the empowerment of workers and peasants. The reverberations of

this struggle led to a nationwide demand for a law to guarantee the RTI to every citizen, with wide spread support from social activists, professionals, lawyers and media who are committed to transparent and accountable governance and people‘s empowerment. The MKSS movement in Rajasthan was a turning point in the RTI movement and showed that even illiterate, socially mute and exploited laborers could assert and get their other rights conceded by invoking the RTI. The movement spread to various parts of Rajasthan, leading to a nationwide movement for the RTI and related state legislations. Thus, it was states that took the first step by enacting RTI laws Tamil Nadu (1997) Goa (1997), Rajasthan (2000). The World Bank implemented the first phase of its new policy on Access to Information on July 01, 2010, to increase its effectiveness, efficiency, and accountability. This new policy draws on India‘s RTI law and the US FOI Law, and positions the Bank as a transparency leader among multilateral organizations. New information that will be available includes decisions of project concept review meetings, project supervision missions, and mid-term project reviews. It also includes a provision that will allow for the declassification of certain types of restricted information over time after 5, 10, or 20 years recognizing that sensitivity of the information declines over time. It also introduces the right to appeal.

Kishna Iyer, J, has very lucidly explained the field of this right in his article on Freedom of Information, where he says that: ―Speaking in the spirit of a democratic world order, It is basic that each one of us everywhere on the globe has a right to Know and a duty to shape the course of things, on a national and even planetary scale. For, there are no passengers on spaceship earth. Everybody‘s crew Indeed the philosophy of information freedom and open government is best spelt out in the premise of the U.S House Committee on Government operations, which approved the Freedom of Information Act, in 1966 .

In cases concerning the right to life and liberty under Article 21 of the Constitution the Courts have stressed the need for free legal aid to the poor and needy who are not either not aware of the procedures or not in a position to afford lawyers, and therefore unable to avail of the constitutional guarantees of legal help and bail. The Courts have said that it is the legal obligation of the judge or the magistrate before whom the accused is produced to inform him of that if he is unable to engage a lawyer on account of poverty or indigence; he is entitled to free legal aid. The most recent judgement enumerating in detail the procedural safeguards for arrest and custody were given in a recent case Most of these directions translate into the right of the accused or his kin to have access to information regarding his arrest and detention such as preparation of a memo of arrest to be counter-signed by the arrestee and a relative or neighbor, preparation of a report of the physical condition of the arrestee, recording of the place of detention in appropriate registers at the police station, display of details of detained persons at a prominent place at the police station and at the district headquarters, etc. Developments in administrative law further strengthened the right.

In State of U.P v. Raj Narain the respondent had summoned documents pertaining to the security arrangements and the expenses thereof of the then Prime Minister. The Supreme Court, in examining a claim for privilege of certain documents summoned the kept to itself the power to decide whether disclosure of certain privileged documents was in the public interest or not. The Court said, ―While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments

give no sanction to giving the executive exclusive power to determine what matters may prejudice the public interest. Once considerations of national security are left out there are few matters of public interest which cannot be safely discussed in public . Justice K.K. Mathew went further to say, ―In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.

The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption.

The Supreme Court in Reliance Petrochemicals Ltd. v. Proprietors Indian Express Newspaper Bombay Pvt. Ltd has held that the right to know emanates from the fundamental right to freedom of speech and expression. It was held that people have a right to know in order to be able to take part in a participatory development in industrial life and democracy. The rights to know is a basic right to which citizens of a free country aspire in the broader horizon of the right to life- in our context, under Article 21 of the Constitution. More recently, this right has acquired new dimensions. It puts greater obligation upon those who take the responsibility to provide information. The elected representatives could meaningfully claim their true and democratic nature of their representation only if a people who were fully informed had given them that mandate.

In Secretary, Ministry of I & B v. Cricket Association Bengal the Right to know was once again reiterated as an implicit part of the Right to Freedom of Speech and Expression as including the right to acquire information to disseminate it. Freedom of speech and Expression is necessary for self- expression, which is an important means to free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything. It has been held that these rights could be limited only by reasonable restrictions provided under a law, made for the purposes mentioned in Article 19

(1) & (2) of the Constitution.

CONFLICT BETWEEN: RIGHT TO INFORMATION & RIGHT TO PRIVACY

The Indian Constitution does not specifically recognize the right to privacy. But after the case of Kharak Singh

1. State of U.P the Supreme Court for the first time acknowledged the right to privacy which is inherent in the Constitution under Article 21. The Court held that, ―the right to privacy is an integral part of the right to life, but without any clear cut laws, it still remains in the gray area. This view was based on the finding that the infringement of a fundamental right must be both direct as well as tangible than the freedom guaranteed under article 19(1)(a), the right to freedom of speech and expression was not infringed upon by keeping a watch over the movement of a suspect.

In R. Rajagopal v. State of T.N. the apex Court held that, ―the right to privacy is a right to let alone‘. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in the action of damages. In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, as in the instant case, namely, the appellant‘s right to privacy as a part of right to life and other person‘s right to lead a healthy life which is her fundamental right u/a 21, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral consideration cannot be kept at bay and judges are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be sensitive, ―in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day .

The word right‘ in Right to Information states that one can ask for information from the authority‘, that is

public authority‘. But apart from the public‘ information, there is also some private‘ information that we need to know. This is where the conflict lies, because why should anyone or any organization reveal its private information and why a person should say what he/she has or doesn‘t have to. The question that comes isn‘t that it is putting your nose in somebody‘s right to privacy‘ but to what extent an information remains

private‘, has to be explored.

Mr. Manmohan Singh, the then Prime Minister, said the citizens to know should definitely be circumscribed if it encroaches on an individual‘s privacy. He said ―there is a fine balance required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen‘s right to know should definitely be circumscribed if disclosure of information encroaches upon someone‘s personal privacy. But where to draw a line is a complicated question .

One of the most contentious case where Mr. Ratan Tata went to Supreme Court to file case against the publication of the intercepts in which his conversation with one Ms. Neera Radia, she handles the corporate communication for the TATA group. Tata held that as Radia‘s phones were tapped by the government agencies particularly for investigating a possible offence, the recorded conversations can be used for that purpose alone. Ratan Tata also submitted his petition asking the Supreme Court to protect his right to privacy. The freedom of information laws at their core have the purpose of disclosure and exemptions are strictly construed, so it has been said that the public right to know prevails unless such disclosure would publicize any intimate details which are highly of personal nature. Thus the Radia tapes so far published were of public issues, but not regarding personal life of Mr.Tata. These conversations can be made available to any citizen under the RTI Act, because the only objection that one could raise would be on the ground of section 8(j) of RTI Act which states that ―the information which is a personal information, and the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information. In that case an opening question that could be asked is, whether Tata‘s conversations would be revealed through an RTI, or whether his conversations would fall under the exemption of personal information found in section 8(j)? An interesting point to be noted is the structure of this

exemption. By the use of the word ―or the legislation suggests that any unwarranted invasion of an individual‘s privacy may trigger the exemption, even if the information relates to public activity or interest. But the added caveat says that, ―the larger public interest could justify the release of even purely private information. Thus, the Supreme Court of India was well within the law to allow disclosure of conversation details between Mr. Ratan Tata and Ms. Nira Radia.

Public and private information conflict has been a major area of discussion for the last few years. It is a Constitutional right which cannot be denied by the government. On the other hand civil rights are the protections and privileges of personal liberty given to all citizens by law. Examples of such civil rights and liberties are like the right to get redressed if one is injured by another‘s action, right to privacy, right of peaceful protest, the right to get a fair investigation and a trial if one is suspected of a crime.

An infringement upon one‘s privacy is only protected if the wrongdoer is the state and not a private entity. If the offender is an individual then there is no useful remedy except in the law of tort where one can claim the damages for intruding on his privacy and no more. In R. Rajagopal v State of TN the Apex Court held that,

―right to privacy is right to let alone‘ and that no one can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether admiring or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in the action of damages.

If taken into consideration the above noted landmark cases and the verdicts given by the Apex Court of India, one can definitely sense the contradiction in the right to know and the ways in which one can keep his secrets within him.

CONCLUSION

There is an inherent tension between the objective of right to information and the objective of protecting personal privacy. These objectives will often conflict when an applicant seeks access for personal information about a third party. The conflict poses two related challenges for lawmakers; first, to determine where the balance should be struck between these aims; and, secondly, to determine the mechanisms for dealing with requests for such information. The conflict between the right to personal privacy and the public interest in the disclosure of personal information was recognized by the legislature by exempting purely personal information under Section 8(1)(j) of the Act. Section 8(1)(j) says that disclosure may be refused if the request pertains to ―personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. Thus, personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the Act.

If, however, the applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted and after duly notifying the third party (i.e. the individual concerned with the information or whose records are sought) and after considering his views, the authority can disclose it. The nature of restriction on the right of privacy, however, is of a different order. In the case of private individuals, the degree of protection afforded to be greater, whereas in the case of public servants, the degree of protection can be lower, depending

on what is at stake. This is so because; a public servant is expected to act for the public good in the discharge of his duties and is thus accountable for them.

Thus, access to information and protection of privacy are both rights intended to help the individual in making government accountable. Most of the time, the two rights complement each other. However, there are conflicts—for example, privacy laws often are improperly invoked by governments. And there are cases where the conflicts are legitimate. There is no simple solution to balancing the two rights, but most issues can be mitigated through the enactment of clear definitions in legislation, guidelines, techniques, and oversight systems.

Finally, Government should create appropriate institutional structures that can balance these rights and ensure that data protection and right to in- formation officials work together, even if they represent different bodies.

HUMAN RIGHTS AND ENVIRONMENTALISM: TWO SIDES OF THE SAME COIN

[Vol 1/ Issue 3/ Oct 2015] [ISSN 2394-9295] Dr. Meenu Gupta

Professor

Amity Law School, Noida Email ID: mgupta1@amity.edu

ABSTRACT

Right from the birth, one should get unpolluted air to breath, uncontaminated water to drink, nutritious food to eat, and hygienic place to live in. These parts are essential for the growth of the human development. In spite of knowing this, man hardly ever put an effort to protect the environment or to conserve the same; either because of lack of ability to improve or change it or because of his ignorance towards it. The government organization too, had paid the stinginess regard for it. Through this paper the author has tried to establish the link between the human rights and environment which is necessary for a basic human growth. As civilizations progressed, the utilization and exploitations of natural resources for development purposes has been increased. In the name of development and progress environment is being adversely affected day by day. However, such developments have been adversely affecting the world‟s natural resources and environment. These actions have placed humans in center and overlooked the principles of preservation, protection and conservation of the natural environment. The situation is further getting worse by technological and industrial developments, economic progress and over-population. This paper focuses on the relationship between environmental degradation and human rights abuses, on the evolution and recognition of the human right to a healthy environment. Moreover, the concept of sustainable development which has been largely ignored until now is coming into the arena in order to protect the environment and thus, human right. This would certainly lead us beyond the conflict of human rights and protection of environment.

Keywords: Human Rights, Environmental Law, Pollution, Natural Resources, Environmental Degradation.

INTRODUCTION

“It is our collective and individual responsibility…to preserve and tend to the environment in which we all live.”

– Dalai Lama XIV

Environmental pollution is one of the serious threats before the world Degradation of environment. Deprivation in environment has been considered as a wide range of problems before the mankind. Areas of human inhabitation as well as the without human inhabitant are facing the same problem.

The number of problem emerging out from the environmental pollution has been increasing with time. Human beings are the biggest factors in damaging the environment which ultimately results in a violation of human rights.

Pollution has caused more than a million death and many diseases. Around the world people are facing declining of ecosystem which includes, natural disaster due to deforestation, shortage of water and unsafe management, fisheries depletion and. All these are attributed to the pollution only. Chloro-floro carbons from refrigerated products has also led in emerging the green house effect and ozone layer depletions and human beings are directly exposed to harmful ultra violet radiations and ultimately results in the climate change. It also gives an indirect impact on the new born child and to the fetus. Emissions from factories and cars are affecting people destructively. The need of industry is causing depletion of forest and humans to suffer. Emission of toxic waste goes directly into river thus polluting the natural water of the world. Waste and garbage disposal from homes have created a big problem and creating the water pollution. Over-grazing of land is causing soil erosion. These facts articulately shows that the effect of the environment degradation on human health, which results in enjoyment of human rights in a limited sense.

Thus, Human being is facing constant struggle to live every day. The disputes which have arisen largely related to the over population, increased consumerism, inadequate planning and over utilization of natural resources reducing their regenerative ability.

In such a situation, the rights of a human will definitely get volatile. To overcome from this problem, international and national organizations have incorporated fundamental rights and basic human rights and granted a mechanism of Judiciary through which these rights can be implemented. Surprisingly, the disputes which are coming to the courts have involved the major conflict between the person‘s fundamental right to life, freedom of business and trade , property and the environment. The main reason behind the environmental degradation is the development in every country. As a result, there has been a growing need for recognition of environmental human rights in many cases.

Legal regimes have fallen short of creating any environmental rights. A very less has been done till date in reference to the protecting environment but beginning has been made as certain aspirations have taken a legislative and constitutional form. But we still need to cover miles in making realizing the world the importance of conserving the environment for the sake of humanity. Although the human rights to a healthy environment has been promoted internationally for over twenty-five years now but it is not binding on the states. Only few of them have given it in a shape of legislation in their country. To put forward right to environment in all over the world is still too far but this eco-centric approach will bring the solution of the debate i.e. human being‘s right to development and a right to environment.

HUMAN RIGHTS AND ENVIRONMENTAL LAWS

All human beings depend upon the environment in which we live. The right to live in a clean safe and sustainable environment is always linked with the enjoyment of the wide range of human rights. A healthy environment which is essential for the well being of the human being is an essential ingredient of right to life. Environmental law is conceptualized as giving a protection that would help to ensure the well-being of future generations as well as survival of those who depends immediately upon natural resources for their livelihood. There has been increase of legal claims for both the human rights and environmental protection which clearly shows us the link between the human right and Importance of relationship between two spheres.

Traditionally speaking, human rights and environment law have been considered as two distinct entities. However, in recent years the recognition of the links between the human rights and the environment has been greatly increased. There are number of international and domestic laws, judicial decisions and academic studies which give us the reflection of the clear linkage between the environment and the human rights. After 1970‘s people have started linking between the human rights and the environment.

LINKING HUMAN RIGHTS AND INTERNATIONAL ENVIRONMENTAL LAWS

International concern for the protection, preservation and improvement of environment became pronounced only in past several decades. In the context of transnational world, where economic globalization is expanding, any act or omission by one country will adversely affect the national environment of another country and in consequence impinge on the global environment. The problem of environmental pollution has created a terror in all the nations which let the nations to shed their attitudes and become conscious about the dangers of further avoidance of environment. Prior to the year 1972 the world has not faced any commotion about the protection of environment, balanced ecology and the prevention of pollution. However, the concern regarding these matters alarmed the world when it realized that the over industrialization is cursing the environment. The treasures of nature having been depleted day in day out, apprehensions became enlarged that human life was being in degrees cut short by the filth the people were being put to inhale and ingest. This issue doesn t have any national, frontier and racial boundaries but it‘s a worldwide concern. All the international leaders consented that the if issues of disarmament, peace and economic equations can be argued and settled at the international level so why the world could not come together on the damage which is being done to the environment. They also alerted that the all countries should take appropriate measures at their own level to protect the environment. Earlier, there was no major international effort to tackle the environmental problem. Although there were several international legislations, agencies and specialized organs in the worldwide dealing with environmental issues which are still in operation. Some of these are:

• The Nuclear Weapons Tests Ban Treaty of 1963.
• The Treaty for the Prohibition of Nuclear Weapons in Latin America of 1967.
• The Treaty Laying Down the Principle Governing Activities of States in the Exploration and Use of Outer Space Including the Moon and Celestial Bodies of 1976
• The Treaty on the Non-proliferation of Nuclear Weapons of 1968
• The Treaty on the Prohibition of the Emplacement of Nuclear Weapons on the Seabed, Ocean Floor and Subsoil thereof 1971.

Often these have seemed to develop in isolation from one another. Yet one can see the relations between the human rights and environment protection from the first international conference held in 1972, in Stockholm.

THE STOCKHOLM CONFERENCE, 1972

Indeed, health is the prime concern in both the fields i.e. environmental protection and human rights. The Declaration of the United Nations Conference on the Human Environment held in Stockholm from 5th June to 16th June considered the need to inspire and channel the people all over the world to conserve and improve the human environment. The 1972 Stockholm conference had the effect of initiating worldwide participation and participating in creating the awareness to preserve the environment from further damage. It proclaims that:

―Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man‘s environment, the natural and the man­made, are essential to his well­being and to the enjoyment of basic human rights to right to life itself.

Therefore, it called upon the government and common people from all over the world to put the efforts on the preservation and improvement of the natural environment. The Right to Healthy Environment has been clearly mentioned in this international environmental law documentation. The declaration of the conference was divided into two parts besides the preamble. The first part had declared the seven truths about the man in relation of the environment and the second part had laid down the twenty-six principles which are known as the Magna Carta on human environment. The following principles out of the twenty-six are significant:

• 1. Man has the fundamental right to live in a good quality of environment that permits a life of dignity and well being, and bear a responsibility and improve the environment for present and future generations.
  2. Natural resources of the earth including air, water, land, flora and fauna must be safeguarded through proper management and implementations of policies for the present and future generations.
  3. State shall take all possible steps to prevent the water pollution especially pollution of seas by substance that are danger to the human and marine life.
  4. State have the sovereign right to exploit their own environmental policies and the responsibility to ensure that the activities within their jurisdictions do not cause any damage to the environment of the other state or of areas beyond the limits of natural jurisdiction.
  5. State shall co operate to develop the international law regarding the liability and compensation for the victims of pollution and other environmental damages caused by the activities within the jurisdiction or control such states to areas beyond the jurisdiction.

The Stockholm Conference is significant for one thing, i.e. it was active in focusing world‘s attention on the environmental crises and also in giving impetus to international cooperation. The Stockholm Declaration on Human Environment has set out the global strategies for environment protection.

These principles are even relevant today as they were in 1972.

THE RIO CONFERENCE, 1992

The second landmark event in the process of the evolution of the development of international concern for global environment was the United Nations Conference on Environment and Development held at Rio (Brazil) from 3 to 14 June 1992 to confront the twin problem of environment and development. The conference is known as Rio Summit. 178 nations were involved to save the planet earth from the environmental degradation. In terms of numbers, it was one of the largest meetings ever held. The Conference was of great importance for its fivefold contribution to the international efforts to combat global environmental problems. The conference resulted in the conclusion of treaty of climate change and curbing the green house gases. There was the most important ―Rio Declaration , a non­binding set of 27 principles that deals with the rights and responsibilities of nation of the earth relating environment and development. The Rio Declaration embodies guidelines for the political agenda of both developed and developing countries.

Principle 1 of the Rio Declaration says that the focus should be on human beings, they are entitled to live human life with dignity of concern for sustainable development. These declarations and principles are based on the right-based approach which is new in the context of international environmental law. This approach is directly link to the Stockholm Declaration that for the exercise of the international- guaranteed human rights like the right to life and heath, environmental protection is necessary. Human lives are endangered by the continuous exposures to deforestation, toxic chemicals, hazardous waste, contaminated drinking water and the list is endless. Level of environmental degradation helps the country to find out the scope which people enjoy their basic rights to life, health, hygienic food, uncontaminated water, and housing and exercise the culture. Once the environment get polluted beyond the reach of repairing it then it will be very difficult to bring back to its original position again. Thus, abuse of human rights. Those who pollute and destroy the environment, are not just committing a crime against nature, but are violating human rights as well.

The second rights-based approach focuses on human rights as an essential element to achieving environmental protection instead of considering environmental protection as an essential of human right. So this approach is other war round to the first approach. It made a link between human rights and environment in procedural terms. Principle 10 says that a public participation, judicial and administrative proceeding, redress and remedy public participation, should be guaranteed because environmental issues can be best solved when there is large number of public contribution. Thus this approach is in procedural terms for better environmental-decision and enforcement. Most of the treaties explicitly say about healthy, safe and clean environment which establish a clear link between environmental protection and human health.

Thus, Rio earth summit focused on the well being of the human being and harmony with the nature. It came to the common point that the countries should forget about its national boundaries and try to tackle the problem as a one because ultimately it will harm the world as a whole and not just few individuals or one part of the world.

The meeting of experts on human rights and the environment(14-15 janury,2002) preparatory to the seminar ( 16 january,2002) held at Geneva to assess the progress since the 1992 conference, concluded that the developments indicate the close linkage between the protection of the Human right and environmental protection in the context of sustainable development , the growing inter- relationship between the approaches to each of them, as well all the synergies that have developed between the previously distinct fields.

In 2009, the UN Environment Programme (UNEP) and the Office of the High Commissioner for Human Rights (OHCHR) jointly organized a High Level Expert Meeting, the New Future of Human Rights and the Environment: Moving the Global Agenda Forward. The meeting provided a forum to discuss the series of resolutions adopted by the UN Human Rights Council on the relationship between a safe and healthy environment and the enjoyment of human rights. The diverse range of legal and environmental policy experts who participated agreed that the time was ripe ―to deepen understanding of the direct and indirect links between the protection of the environment and the enjoyment of human rights. One of their proposals was to produce a review of law dealing with human rights and environmental linkages.

OTHER PROVISIONS LINKING HUMAN RIGHT, HEALTH AND ENVIRONMENT

Most human rights treaties were drafted and adopted before environmental protection became a matter of international concern. As a result, there are few references to environmental matters in international human rights instrument, although e right to life and health are certainly included and some formulation s of the latter right makes references to environmental issues.

Global Treaties and Legal Provisions Universal Declaration of Human Rights (1948)

Although the UDHR has its non-binding status but many of its provisions still there in many international legal documents. The declaration does not refer to the environment directly. However article 25 states that:

Everyone has a right to a standard of living adequate for the health and well -being of himself and of his family ,including food, clothing, housing and medical care and necessary services, and the right to security in the event of unemployment , sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the social protection.

The enjoyment of right to standard of living requires that everyone get the subsistence rights i.e. adequate amount of nutritious food, clothing and housing. However in order to enjoy these above rights, the citizens should also get the economic rights. These are Right to Property; which is not easily available in worldwide, in fact in India, it has been removed from the fundamental rights (44th Amendment), Right to Work and the Right to Social Security. By implementation of these rights, Right to a standard of living can be achieved.

The second part of the article 25 has been included in the spirit of protecting the vulnerable groups i.e. mother and child. There is a link of the health of mother and child. Mother needs a good care and assistance for the adequate development of child. They both need to live in good environment for the overall development.

International Covenant on Civil and Political Rights (1966)

This Covenant did not give much importance on the right to environment but it mainly focused on the right to life which also indirectly links to the right to healthy environment. Article 6(1) declares that:

―Every human right has the inherent right to life. This right shall be protected by the law. No one shall be arbitrarily deprived of his life .

Right to environment and right to life are closely related because person‘s right to life can be infringed when he does not get healthy environment to live. In India, the Supreme Court has interpreted the Article 21 of the constitution and explicitly states that citizens have a right to clean and healthy environment.

International Covenant on Economic, Social and Cultural Rights (1966)

Article 7(b) states, ―All the workers are entitled to safe and healthy working conditions. Article 10(3) states, ―Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of percentage or their conditions. Children and young persons should be protected from economic and social exploitations. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punished by law. States should also set age limit below which the paid employment of child labour should be prohibited and punished by law. Article 12 states: ―The states parties to the present covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the states parties to the present covenant to achieve the full realization of this right shall include those necessary for:

The provision for the reduction of the still-birth-rate and of infant mortality and for the healthy development of the child;

The improvement of all aspects of environmental and industrial hygiene;

The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

This covenant guarantees the right of safe and healthy working conditions for the workers and also directs the state to take special measures for the protection of children so that they would be secured from the economic and social exploitations. It also explicitly states about the improvement of environmental and industrial hygiene which also includes treatment and prevention of diseases and medical services for all.

Convention on Elimination of All Forms of Discrimination against Women (1979)

Article 14(2)(h) provides , ―state parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women , that they participate in and benefit from rural development and, in particular, shall ensure to such women the right to enjoy adequate living conditions , particularly in relation to housing ,sanitation ,electricity and water supply

, transport and communication .

This article mentions about the duty of state to take measures to abolish the discrimination of both the genders and also guarantees right to enjoy and live in a healthy environment with adequate facilities.

Convention on the Rights of the Child (1989)

Environmental protection in relation to child‘s right to health has been referred in this convention. Article 24

(1) says, ―States Parties recognize the right of the child to the enjoyment of the highest attainable standard of

health and to facilities for the treatment of illness and rehabilitation of health. States parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 24(2) provides,

―States parties shall pursue full implementation of this rights and, in particular, shall take appropriate measures:

(c)To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water , taking into consideration the dangers and risks of environmental pollution;

1. To ensure that all segments of society, in particular parents and children, are informed, have access to education and supported in the use of basic knowledge of child health and nutrition, the advantage of breastfeeding, hygiene and environmental sanitation and the prevention of accidents . This article says about the duty of the state to provide nutritious food and adequate drinking water to children and also concerns about the dangers and risks of environmental pollution.

ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (1989)

Article 2, 6,7,15 includes abundant references to the lands, resources and environment of indigenous peoples. Part II of the Convention provides about land problem, including conservation of their natural resources pertaining to their land. In addition, article 25(1) mention about the duty of the government to provide adequate health services and resources. Also,

Article 30 requires that governments make known to the people concerned their rights and duties. Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, (1998)It is also known as The Aarhus Convention, The UNECE Convention on right to information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference in the

Environment for Europe‘ process. The present convention

• 1. Links environmental rights and human rights.
  2. Acknowledges that we owe an obligation to future generations.
  3. Establishes the sustainable development can be achieved only through the involvement of all stakeholders.
  4. Links government accountability and environmental protection.
  5. Focus on interactions between the public and public authorities in a democratic context.
  6. This convention is not only an environmental agreement but also about government accountability, transparency and responsiveness.
  7. Vienna Declaration on Human Rights- the Vienna Declaration and Programme for action

The Vienna 20 CSO Declaration, 25th and 26th June, 2013

The Vienna 20 CSO declaration was attended by more than 140 CSO around the world, on the occasion of 20th anniversary of the 1993 World Conference on Human Rights and its Vienna Declaration and Programme of Action, June 25,1993.

This conference has recognized the environment and ecological proportions of human rights in ensuring the performing and sustainability of global ecosystem. It upholds the rights of planet, earth and even values the rights of future generations.

Special procedures established under the UN human rights system have also contributed to clarifying certain aspects of the Human rights and the environment linkages, such as with respect to toxic waste, indigenous peoples rights, food, water and climate change. Further, in March 2012, during its 19th session, the UN Human Rights Council created a three-year mandate for an Independent Expert on Human Rights and the Environment. In addition to the work of human rights treaty bodies and special procedures, the jurisprudence of universal and regional human rights supervisory mechanisms has tackled the environmental dimension of protected human rights. Human rights supervisory mechanisms have been confronted with applications or petitions involving environmental issues submitted by victims and/or non- governmental organizations. In responding to them, they have had to ascertain whether and/or how the content of a protected right is linked with environmental issues. In this process, environmental realities have been translated into a language of rights. The result has been a robust, albeit still evolving, Human rights and the environment jurisprudence linking the content of protected rights with environmental issues.

Hearing and deciding Human rights and the environment cases has forced regional and universal supervisory mechanisms to address the Human rights and the environment linkage. At times human rights mechanisms have addressed the right to a healthy environment directly, and at other times they have addressed the environmental dimensions of the right to life, the right to culture, the right to property, the right to private life, and the right to access to information, to name a few rights directly implicated in Human rights and the environment case-law. The resulting jurisprudence represents an important contribution to the international community‘s understanding of the Human rights and the environment linkage.

REGIONAL INTERNATIONAL JUDICIAL INTERVENTIONS

The developments which have taken place in various national courts around the world; two things which we all have come across i.e. the courts have started recognizing the right to a healthy environment as a fundamental right and courts through various landmark decisions have started explaining the nature of these rights. Some of the decisions are as follows:

Antonio Mauricio Monroy Cespedes‘s case, 1993 – in Columbia, the right to the environment was integrated in 1991. In this case the court observed that ―side by side with fundamental rights such as liberty, equality and necessary conditions for people‘s life, there is a right to environment. The right to a healthy environment cannot be separated from the right to life and health of human beings. If this is so we can state that the right to the environment is a right fundamental to the existence of humanity .

Carlos Roberto Garcia Chacon, 1993– the case was regarding the use of a cliff as a waste dump. The Supreme Court of Costa Rica stated ―life is only possible when it exists in solidarity with nature, which nourishes and sustains us- not only with regard to food, but also with physical well being. It constitutes a right that all citizens possess to live in an environment free from contamination .

Guerra and Others v. Italy – the Environment Court of Human Rights (ECHR) held that the state is responsible for breaching the right of the applicant‘s i.e. right to privacy and family life, which was granted in Article 8 of ECHR by not providing the essential information regarding the risk they possess in living near the chemical plant.

Powell & Rayner v. UK – it was the first case where court has identified the links between the environment and quality of life. Here the court said that the noise which is coming out from Heatthrow airport is causing nuisance and interfering with the right to live in a peaceful environment. The court has also tested out the balance between the interests of the individual against the interest of the community and to what extent state has a duty to secure the rights of the people. The court held that airport is necessary for the economic well being of the country and the state should comply with the international aviation standard to diminish the noise pollution.

Lopez Ostra v. Spain – the applicant resided near the privately owned solid and liquid waste treatment plant. She asserted that the odour and noise coming out from the plant infringing her right to live in healthy environment and freedom from torture. The court has found out that emanation surpasses the tolerable limits and stated that severe environmental pollution may affect individuals well being and it also prevents them from enjoying their private life peacefully. Eventually, Court has awarded the applicant with the four million pesetas.

The question of human rights and environment has also come up in our neighbouring countries. Some of the cases are as follows:

In Bangladesh, the constitution does not provide the right to live in a healthy environment either in fundamental rights and directive principles of state policy. However, Article 31 states that every citizen has the right to protection from action detrimental to the life, liberty, body, reputation or property‘. In Dr. M. Farooque v. Secretary, ministry of Communication, Government of People‘s Republic of Bangladesh and others . A public interest litigation came up to the Supreme Court in 1994. In which Supreme Court has affirmed the right to live does also extend to right to live in a healthy environment.

In Zia v. WAPDA , the question came up before the Supreme Court of Pakistan under Article 9 of the Constitution that whether citizens are allowed to get protection of law from being exposed to hazards of electro-magnetic field or any other such hazards which may be due to installations and building the grid location, power stations, etc. the court said that Article 9 of the constitution provides the protection of dignity of man and right to life, Article 14 says about the privacy of home , which is unchallengeable. If both read concurrently, question arises, whether the rights of a man get infringed if he lives without adequate proper food, house, clothing, heath care, clean atmosphere and unpolluted environment.

HUMAN RIGHTS AND NATIONAL ENVIRONMENTAL LAWS

In India, even without the constitutional provision, rich heritage of India emphasis the significance of environment the worship of animals, such as tiger of Goddess Durga, mouse of lord Ganesh, elephant of lord Indra, garud of lord Vishnu, cow of lord Krishna and so on and trees like Peepal and Tulsi are worshipped and a part of the composite culture and faith. The sects of Bishnoi in the state of Rajasthan has committed to protect the flora and fauna and large number of them had given their lives to save the same , the Chipkoo movement in Uttaranchal was on the same line.

Our former Prime Minister Mrs. Indira Gandhi stressed upon the fact that modern man must be able to establish an unbroken link with nature and with life‘, ―He must again learn to invoke the energy of growing things and to recognize as the ancients in India centuries ago, that one can take from the earth and the atmosphere only so much as one puts back to them.

After the Stockholm Conference the Indian Parliament introduced the forty second amendment whereby Articles 48Aand 51 A(g) were added to in the Constitution in 1976. The amendment also expands the list of concurrent powers in the constitution transferring ―Forest and ―Protection of Wildlife and Birds ―from the State to Concurrent list. These major amendments and enactment of legislative measures goes to show that the nation realized that a framework of laws was necessary to deal with the environmental degradation, which affecting the citizen‘s Right to Life. Integration of the environment in the economic and social development has been the center of the development plans and has come up with the main guiding principles. This is in accord with the directive principles of state policy and the Fundamental Duties.

Article 48-A of the Constitution provides:

―The state shall endeavour to protect and improve the environment and to safeguard forests and wildlife of the country.

Article 51A(g) of the Constitution provides:

―It shall be the duty of every citizen of india to protect and improve the natural environment including forests and wildlife of the country.

In LK Koolwal v. State of Rajasthan , there was a demand for cleaning up the pink city,Jaipur and saving it from the unhygienic conditions. The court held that the it‘s a duty of the citizen under art 51- A(g) to approach the court for a directions to the Muncipal department to clean the city and thus maintain the sanitation, health and the environment which falls within Art.21.

Thus our Constitution includes environmental protection and conservation as one of our fundamental duties. Although the provisions for respecting, protecting and improving the environment were not in terms of human rights to environment but cast the duty upon the citizens and the state to protect and preserve.

Some other important Acts passed by the Government of India are:

1. Forest (Conservation) Act, 1980.
2. Water (Prevention and Control of Pollution) Act, 1974.
3. The Air (Prevention and Control of Pollution) Act, 1981.
4. The Environment (Protection) Act, 1986
5. Public Liability Insurance Act, 1991
6. National Green Tribunal Act,2010

It is submitted that the above brief examination of the various international and national efforts, undertaken to contest the alarming global environmental challenges which are directly or indirectly links to the Human Rights as reflected in the various international and legal instruments.

CONCLUSION

From the above discussion it is clear that if we ignore and neglect the environment the quality of our life and our children and their children will be in jeopardy. All over the world people are experiencing the effects of global warming and ecosystem decline, from water shortages to fish kills to landslides and climate change. A human right approach to environmental issues elevates the entire spectrum of sustainability, conservation and environmental issues to fundamental values of society on a level equal to other rights. It creates rights and obligations and thus more environmental awareness. And from the legal perspective, it will be a strong legal tool to stop and prevent environmental degradation. Also, such frightening prospects have made our leaders both at the national and international level to think about the ways to protect the environment International law and jurisprudence has elucidated linkages between the natural environment and several different types of protected rights. Environmental conservation and protection is linked to both procedural and substantive rights; civil and political rights as well as cultural, economic and social rights; positive and negative rights; individual rights, collective rights, and rights associated with mankind as a whole; and rights held by the living and rights held by future generations.

International and National studies of human environment and law reveal that there is need to develop human environment codes. It is seen that there is no shortage at International and National level to pay the foundation of human environmental law. The International Human Rights standards serve as a guide for measures to tackle the problem of environmental pollution and to protect and promote full enjoyment of the rights given in the Universal Declaration of Human Rights and in the core universal human rights treaties. It can be concluded that policy goals enforcement of environmental is very much present in the judicial responses. Therefore, it becomes evidently clear and certain that for the declaration of the right to healthy environment as a human right we need effective, efficient environmental laws.

It has been broadly accepted that environment protection constitutes a precondition for the effective enjoyment of human rights protection, and that human rights and the environment are interdependent and interrelated. The experts identified poverty at the centre of human rights violations and also as a major obstacle to achieving sustainable development and environmental protection. A rights based approach has been recommended to enhance the impact of policies and programmes. Environmental awaking among the people will make the environmental laws more enforceable and also lead to develop more purposeful laws in this subject. Sense of environmental rights and duties will make right to healthy environment more strengthful human right. Such changes will not occur quickly but citizens, international and national organizations should make consistent efforts for at least a gradual change.