http://www.indianexpress.com/news/Maintain-status-quo-of-Mukerian-shamlat-land–HC/393171/
Express News Service Posted: Dec 02, 2008 at 0508 hrs IST
Chandigarh, December 1: A Division Bench of the Punjab and Haryana High Court has directed to maintain the status quo of a shamlat (common) land falling under the jurisdiction of the Municipal Council of Mukerian. The land was allegedly bought by the land mafia in connivance with the Revenue Department officials.
The petitioners Naval Kumar and Gurdian Singh of Mukerian in Hoshiarpur district had filed a PIL, alleging that about six persons had executed a sale deed of the land in connivance with the officers named in the petition. The petitioners have sought proceedings against the people for removing the encroachments, saying they would “raise the construction” on the land without any delay.
The petitioners have made the Punjab government, Deputy Commissioner of Hoshiarpur, Sub Divisional Magistrate, MC Mukerian, MC Executive Officer Subash Chander and Tehsildar Nirmal Singh as official respondents in the PIL.
The PIL sought directions for the opposite parties to produce the record and wanted action against the EO and Tehsildar, who “in connivance with land grabbers/ land mafia has allowed the execution of sale deed”.
HC to decide fate of NGO plea to cut silicosis count in industries
http://www.indianexpress.com/news/HC-to-decide-fate-of-NGO-plea-to-cut-silicosis-count-in-industries/392755/
Gaurav Sharma Posted: Dec 01, 2008 at 0621 hrs IST
Ahmedabad: It seems Gujarat is among the worst performers in industrial health and hygiene, particularly when it comes to dealing with cases of silicosis.
In 2001, the National Institute of Occupational Health (NIOH) had submitted an affidavit in the Gujarat High Court, confirming that 92 quartz grinding workers at Chhota Udaipur were suffering from silicosis. Seven years down the line, 50 of them have died and two are critically ill. The rest are waiting for the inevitable, painful death.
Indira Pathak of Vikalp, the organisation that had filed the PIL in response to which the NIOH had submitted the affidavit, said, “The final hearing in the case is scheduled for December 4. We hope that the honourable high court will lay down strict guidelines for the silicosis-prone industries.”
According to the People’s Training and Research Centre (PTRC), Vadodara, a voluntary organisation working for occupational safety and health, almost nine districts in Gujarat have been affected by silicosis. The biggest culprits have been the glass manufacturing units, stone crushing units, ceramics, foundry and agate industries.
PTRC Director Jagdish Patel said, “The magnitude of the problem can be judged from the fact that cases of silicosis have been reported from the districts of Vadodara, Anand, Ahmedabad, Surendranagar, Junagadh, Sabarkantha, Bharuch, Panchmahals and Dahod.”
Patel further said the situation is all the more precarious in the agate industry in the Khambhat region, affecting nearly 30,000 workers. Of the 1,500 workers directly exposed to the respirable crystalline silica (RCS), there have been 121 confirmed deaths due to silicosis. Over 300 suspected silicosis patients have been identified in 23 villages of Jhalod taluka, two villages of Fatehpura taluka and one village of Dahod taluka.
The PTRC, in its investigation, has also found that the agate industry is a death trap for all the workers, as most of them work as bonded labourers for life. Even compensation after death is not forthcoming, as a majority of the workers are not covered under the Employee’s State Insurance Act.
What is silicosis?According to the World Health Organisation, silicosis is one of the oldest occupational diseases, and still kills thousands of people every year across the globe. It is an incurable lung disease caused by inhalation of dust containing free crystalline silica. The disease causes irreversible lung damage before any symptom develops. The illness it causes may continue to worsen even after exposure stops. Silicosis also reduces a patient’s immunity to tuberculosis, lung cancer, renal diseases, arthritis and the chronic obstructive pulmonary disease.
Vishal Dadlani plans PIL against TV channels
http://www.radioandmusic.com/content/editorial/news/vishal-dadlani-plans-pil-against-tv-channels
Posted By: Anita Iyer 02 Dec 08 08:25 IST
MUMBAI: Music composer Vishal Dadlani will soon file a PIL (Public Interest Litigation) against television news channels that showed the movements of the armed forces live to the terrorists on national television for three days during the attacks.
“It is undoubtedly known that channels did a good job of keeping the viewers clued in with the latest happenings but there has to be some code of conduct when it comes to military or anti-terrorist operations,” believes Dadlani.
“The information like the marine commandos landing on the roof top or our three police officers going to Cama hospital was highly classified information and should not have been shown live on national television. It is really disheartening that our news channels are risking the lives of our soldiers and fighters for the sake of a few TRPs,” says an angry Dadlani.
People wanting to express their support to the petition can log in and add their name in support for the cause on smallchange.in. “Once the number of supporters turns in a few hundred or thousands in a few days, I would approach the court to take the necessary legal action. It is completely unacceptable that this information is available for the terrorists and the court must issue some rules for live footage.”
“The court should enforce some laws that have to be strictly adhered by the news channels and the defaulters must be further penalised.”
Social networking sites like Facebook and Orkut are overflowing with support for the cause. Dadlani declares, “These networking sites are instrumental in reaching out to people to support me for this cause. I hope to get as many people as possible to join my voice in their campaign.”
Some of the people from the music industry to raise their voice are musician Priya Darshini, singer Sowmya Raoh among others
MUMBAI: Music composer Vishal Dadlani will soon file a PIL (Public Interest Litigation) against television news channels that showed the movements of the armed forces live to the terrorists on national television for three days during the attacks.
“It is undoubtedly known that channels did a good job of keeping the viewers clued in with the latest happenings but there has to be some code of conduct when it comes to military or anti-terrorist operations,” believes Dadlani.
“The information like the marine commandos landing on the roof top or our three police officers going to Cama hospital was highly classified information and should not have been shown live on national television. It is really disheartening that our news channels are risking the lives of our soldiers and fighters for the sake of a few TRPs,” says an angry Dadlani.
People wanting to express their support to the petition can log in and add their name in support for the cause on smallchange.in. “Once the number of supporters turns in a few hundred or thousands in a few days, I would approach the court to take the necessary legal action. It is completely unacceptable that this information is available for the terrorists and the court must issue some rules for live footage.”
“The court should enforce some laws that have to be strictly adhered by the news channels and the defaulters must be further penalised.”
Social networking sites like Facebook and Orkut are overflowing with support for the cause. Dadlani declares, “These networking sites are instrumental in reaching out to people to support me for this cause. I hope to get as many people as possible to join my voice in their campaign.”
Some of the people from the music industry to raise their voice are musician Priya Darshini, singer Sowmya Raoh among others
BJP and Sena pay bandh fine
http://www.telegraphindia.com/1081202/jsp/nation/story_10194791.jsp
OUR LEGAL CORRESPONDENT
New Delhi, Dec. 1: The BJP and the Shiv Sena told the Supreme Court today that they had paid Rs 20 lakh each as compensation for the financial loss caused to Mumbai citizens during a 2003 bandh.
“The Rs 20 lakh amounts have been paid,” the counsel for the two parties said.
On July 23, 2004, Bombay High Court had asked the parties to pay the compensation after declaring the bandh “unconstitutional” and violative of the fundamental rights of the citizens of Mumbai. The shutdown had been called days after the Ghatkopar blast that killed four persons in July 2003.
The BJP and the Sena had challenged the high court ruling in the Supreme Court. But former Chief Justice Y.K. Sabharwal said the money must be deposited before the court could adjudicate on the issue of the legality of slapping such a compensation.
In their appeal before the apex court, the two parties had contested the locus standi of several prominent citizens such as B.G. Deshmukh, Alyque Padamsee, Julio Rebiero and Gerson da Cunha who had filed the PIL against them. “The said respondents are busy bodies and do not seem to have any genuine concern for the alleged cause,” the parties’ petition said.
The BJP and the Sena also said there was no factual data to establish that citizens had suffered because of the bandh and that the PIL was based on newspaper reports.
“It (the PIL) only assumes violence without verifying the truthfulness of the newspaper reports,” the petition alleged. The bandh had been called to express the “general feeling of the people against the bomb blast”, the parties claimed, adding that essential services were kept out of its ambit.
PIL seeks action post terror attacks
http://www.expressindia.com/latest-news/pil-seeks-action-post-terror-attacks/392991/
Express News Service
Posted: Dec 02, 2008 at 0108 hrs IST
Mumbai, December 1 The Mumbai terror attacks have now come to the Bombay High Court in the form of a PIL.
In the aftermath of the terror attacks on Mumbai, a PIL has been filed seeking action against those advising the government on national security. The petition, filed by city-based advocate V P Patil, is likely to come up for hearing before Bombay High Court on December 4.
Reflecting the popular sentiment, the petition alleges that top bureaucrats and politicians were “negligent” and “irresponsible” in doing their jobs and in letting the attacks take place.
Like in the case of 1993 Mumbai riots, an inquiry by senior sitting judge of the High Court should be instituted to look into the lapses of government machinery which facilitated the attacks that started on November 26, Patil has demanded.
Action should be taken against erring bureaucrats and ministers for negligence and acts of omission, the petition says.
The PIL further seeks a direction to the Union government to post National Security Guards “permanently” at Mumbai and other main cities.
The Union government should take action against those responsible for delay in sending NSG to Mumbai, it says.
There was gross intelligence failure, it says. It also asks for direction to the defence ministry to enhance coastal security.
PIL filed against NSA, politicians over Mumbai terror attacks
http://timesofindia.indiatimes.com/India/PIL_filed_against_NSA_politicians_over_Mumbai_terror_attacks/articleshow/3781233.cms
1 Dec 2008, 2100 hrs IST, PTI
MUMBAI: A PIL has been filed in the aftermath of the terror attacks on Mumbai, seeking action against National Security Advisor M K Narayanan, top politicians and bureaucrats. The petition, filed by Mumbai-based advocate V P Patil, is likely to come up for hearing before the Bombay High Court on December 4. Reflecting the popular sentiment, the petition alleges that top bureaucrats and politicians were “negligent” and “irresponsible” in doing their jobs. Like in the case of 1993 Mumbai riots, an inquiry by senior sitting judge of the High Court should be conducted to look into the lapses of the government machinery, Patil has demanded. Action should be taken against erring bureaucrats and ministers for negligence and acts of omission, the petition says. The PIL seeks a direction to the union government to post National Security Guards “permanently” at Mumbai and other main cities. The Union government should take action against those responsible for delay in sending the NSG to Mumbai, it says. Hitting out specifically at Narayanan, the PIL says that he has been “irresponsible” and the country’s security has been in the hands of negligent and incompetent people. There was a gross intelligence failure, it adds. It also seeks a direction to the Defence Ministry to enhance the coastal security.
ATS granted custody of two accused in Malegaon blast
http://timesofindia.indiatimes.com/India/ATS_granted_custody_of_two_accused_in_Malegaon_blast/articleshow/3789171.cms
3 Dec 2008, 2000 hrs IST, PTI
MUMBAI: The explosives used in Malegaon blast might have been assembled and manufactured at the house of Sudhakar Chaturvedi, one of the arrested accused in the case, Mumbai Anti-Terrorism Squad told a court here today. The ATS has recovered cotton swabs from Chaturvedi’s house which after tests were found to have traces of RDX and ammonium nitrate,” special public prosecutor Rohini Salian told a MCOCA court. Another arrested accused Rakesh Dhawde had trained men on weapon training and assembling explosives, the prosecution said while seeking the custody of four accused in the case. The court, however, granted custody of only Lt Col Srikant Prasad Purohit and Dhawde till December 6. The ATS had sought the custody of four out of the 11 arrested accused- Ajay Rahirkar, a member of right wing gorup Abhinav Bharat, Dhawde, a firearms expert, Purohit and Chaturvedi. Rahirkar, Chaturvedi and others including prime accused Sadhvi Pragya SIngh Thakur were remanded to judicial custody till December 16. The ATS had sought police custody of the four on the grounds that according to the video and audio recordings recovered from co-accused Dayanand Pandey’s laptop, Rahirkar had purchased arms from Dhawde at the instance of Purohit. Salian told the court that wanted accused Ramji Kalsangra had on August 9 and 10 had gone to Pune and visited Purohit’s residence.
Priest denied bail in Abhaya murder
http://timesofindia.indiatimes.com/India/Priest_denied_bail_in_Abhaya_murder/articleshow/3788780.cms
3 Dec 2008, 1717 hrs IST, PTI
KOCHI: Father Jose Putarika, a priest accused in the 1992 murder of Sister Abhaya, was denied bail by the Ernakulam chief judicial magistrate court on Wednesday as the Central Bureau of Investigation (CBI) said its probe was drawing to a close soon. The counsel for the CBI told the court that the murder probe was nearing conclusion and that the two priests and a nun arrested were the culprits and that they have scientific evidence against them. Abhaya, a resident of Pious X Hostel, was found dead in the well of the Kottayam convent March 27, 1992. On Nov 19, the 13th team of the CBI set up to probe the case – after 12 earlier teams failed – arrested Putarika, 56, a former Malayalam professor at a Kottayam college where Abhaya studied; Father Thomas Kottor, 61, the Diocesan chancellor of the Catholic Church at Kottayam; and Sister Seffi, who was a resident of the convent when the incident took place. The CBI had on Tuesday told the court that Abhaya was hacked to death with an axe by the three accused. Counsel for the CBI Anil Kumar said that the three hit Abhaya with an axe after she saw something that may have been unbefitting of them. The court was told that the two priests struck down Abhaya, while Seffi helped them throw her body into the well. The magistrate had Tuesday sent the priests and the nun to judicial custody till Dec 16.
4100 terror attacks in India from 1970-2004
http://timesofindia.indiatimes.com/India/4100_terror_attacks_in_India_from_1970-2004/articleshow/3788135.cms
3 Dec 2008, 1359 hrs IST, IANS
WASHINGTON: India faced more than 4,100 terrorist attacks between 1970 and 2004, accounting for more than 12,000 fatalities, according to the Global Terrorism Database. The database is maintained by the University of Maryland and the US National Consortium for the Study of Terrorism and Responses to Terrorism (START). START’s Terrorist Organisation Profiles (TOPs) collection has information on 56 groups known to have engaged in terrorism in India, including the Students Islamic Movement of India (SIMI). About 12,540 terrorist-related fatalities in India between 1970 and 2004 – an average of almost 360 fatalities per year from terrorism in India. These fatalities peaked in 1991 and 1992, when 1,184 and 1,132 individuals (respectively) were killed in such incidents, a University of Maryland statement said. These figures are on the lower side as official figures in India put the toll at around 70,000 deaths. Terrorists in India have employed a variety of attack types over time, 38.7 percent of terrorist events were facility attacks, 29.7 percent were bombings (in which the intent was to destroy a specific facility), and 25.5 percent were assassinations. Last week’s terror attacks in Mumbai, which left at least 183 dead, would be classified as a series of coordinated facility attacks.
14 people commit suicide every hour in India
http://timesofindia.indiatimes.com/India/14_people_commit_suicide_every_hour_in_India/articleshow/3787363.cms
3 Dec 2008, 1054 hrs IST, PTI
NEW DELHI: Fourteen people commit suicide every hour in India due to various reasons, ranging from failure in relationships, bankruptcy, illness and social disrepute. One among every three suicide victims is a youth and one among five is a house wife. These are some of the the findings of the National Crime Records Bureau (NCRB) which came out with the latest figures on accidents and suicides in the country. According to the ‘Accidental Deaths and Suicide in India — 2007’ report, the country witnessed an increase of 3.8% in the incidents of suicide with 1,22,637 people ending their lives last year. The number of women was 43,342. Maharashtra has reported the highest number of suicides with 15,184 cases accounting for 12.4 per cent of such incidents followed by Andhra Pradesh with 14,882 (12.1 per cent). The report said 264 deaths came under common pact of mass or family suicides consisting 118 men and 146 women. The highest number of such cases were reported from Kerala (39), followed by Andhra Pradesh (34) and Madhya Pradesh (12). Family problems and illness were another causes for suicide, accounting for 23.8 per cent and 22.3 per cent respectively. Failure in relationships (2.8%), bankruptcy (2.7) and dowry dispute (2.6) were other major factors. Ending life due to ideological affiliations and hero worship, a disturbing trend witnessed in the late 1970s and early ’80s, claimed 261 lives.
No longer easy for witnesses in UP to turn hostile
http://timesofindia.indiatimes.com/India/No_longer_easy_for_witnesses_in_UP_to_turn_hostile/articleshow/3786458.cms
3 Dec 2008, 0429 hrs IST, Kapil Dixit, TNN
ALLAHABAD: In recent times in many high-profile cases there were instances of witnesses turning hostile. So much so that they altered the entire course of trials. But the district police have now devised a novel way to put a check on this. The police have laid down that identity proofs of witnesses, victims and other related persons would have to be affixed along with the written statement of witnesses or victims. District police chief Mutha Ashok Jain has instructed his subordinates to affix identity proof like driving licence, ration card or voter Id-card with the statement of witnesses (while carrying out investigation) so that it does not become easy for witnesses to turn hostile in court. Often witnesses, who turn hostile, allege that their statements were not registered by investigation officers (IOs) or were faked by the latter. This often puts police in a fix in the court and weakens their pursuit against the accused. With witnesses turning hostile fast becoming a trend, police think that measures like attaching ID proofs would discourage the practice. SSP told TOI that he has asked subordinates to enrol the number of identity proof, its number and details of issuing authority in case diaries. He also asked to submit photocopy of identity proof along with case diary so that the witnesses, victims and other persons related to evidences do not turn hostile. The directive would be applicable in all the 39 police stations of the district. In fact, some investigating officers have already started implementing it in the courts. It is learnt that when DGP Vikram Singh came to know about the move of Allahabad district police, he took no time to order police chiefs of all across the state to apply the same scheme in their respective districts. He also appreciated district police for taking the investigation issue seriously and lauded the initiative of the district police.
Post Mumbai, UP first to get its act together
http://timesofindia.indiatimes.com/India/Post_Mumbai_UP_first_to_get_its_act_together/articleshow/3786452.cms
3 Dec 2008, 0424 hrs IST, Rajiv Mani, TNN
LUCKNOW: Uttar Pradesh apparently becomes the first major state to react boldly to the Mumbai terror attacks with chief minister Mayawati announcing major restructuring of the state police which, with the strength of around two lakhs, is the Asia’s biggest force. “We have taken a lesson from Mumbai terror attack and decided to go in for effective policing in view of the increased terror threat,” Mayawati announced here on Monday. Important decisions taken by her in this regard are the recruitment of 1.58 lakh police constables to increase the existing strength to about 3.5 lakh and revamping of the state’s intelligence department and the anti-terrorist squad. Henceforth, police stations will be headed by officers of the level of police inspectors and not those hand-picked by district police chiefs for considerations other than merit. In line with this, the security has also been beefed up at all sensitive places, including Ayodhya, Varanasi, Mathura and Agra. Besides, top priority is being accorded to the police modernisation by replacing the outdated 3’O’3 rifles with AK-47 and other automotive weapons and strengthening the commando force by increasing their number to minimum 2000 in the state. “The paucity of fund will not be allowed to become a stumbling block in the way of policing,” Mayawati showed her determination. Addressing a press conference at her 5 Kalidas Marg residence just after presiding over the cabinet meeting, she said these decisions were taken in order to restore the people’s confidence and keep the terrorism at bay in the state. “The biggest challenge faced by political leaders today is of their credibility because they are unable to live up to the people’s expectations for safety and security,” Mayawati said adding that this was why there was so much public hostilities against political leaders at various places in the country recently. “I see no wrong in this,” Mayawati said adding that people were fully justified in their conduct, as they had been cheated by the present UPA coalition government headed by the Congress and the previous NDA government headed by the BJP at the Centre by remaining immune to the problem of terrorism. Blaming the Centre for its utter failure, she demanded the resignation of the UPA government over the issue of terrorism and said that the resignation by Union home minister Shivraj Patil and deputy chief minister of Maharashtra, RR Patil was nothing but an “eyewash”. As for the recruitment of the police constables, she said a police recruitment board would be constituted in order to put a check on the recurrence of any recruitment scam like one that took place during the tenure of her predecessor Mulayam Singh Yadav. Of the 22,000 constables recruited by the Mulayam Singh Yadav government, 17,868 recruitment were annulled during inquiries. Asserting that there would be no room for the corruption, Mayawati said that the police recruitment board would be set up under the Police Act and the Arms Constabulary Act. In view of the changing needs, she said, the intelligence department would be completely revamped with emphasis on training to officials. With regard the ATS, she said it would be headed by an official of the rank of Inspector general of police. Divided into four zones — Lucknow, Kanpur, Allahabad and Faizabad, she said these zones would be headed by officials of the rank of deputy inspector of general (DIGs) Both the ATS and the STF would be provided their separate offices in the state in order to improve their functioning, she said.
Ageing police force ails Punjab security
http://timesofindia.indiatimes.com/India/Ageing_police_force_ails_Punjab_security/articleshow/3786392.cms
3 Dec 2008, 0402 hrs IST, Ramaninder K Bhatia, TNN
CHANDIGARH: Punjab is not a stranger to deadly terror strikes. In fact, it has one of the bloodiest histories of violence. But what if it were made a target once again, as intelligence reports keep pointing out, especially keeping in mind the sheer volume of explosives including deadly consignments of RDX arms and ammunitions being constantly confiscated from its porous international borders? Only God could save it as its police force battling lack of preparedness, old age and devoid of infrastructure, would be woefully wanting on all fronts. To start with, the state does not have a single Quick Reaction Team (QRT). Worse, most of the commandoes in the state’s 5 commando battalions are well past the age of 35 as the last major recruitment was carried out way back in 1992. The state has only one young commando unit which is the force’s major strike arm, for which recruitment was done in early 2000. And this for a state which went through harrowing terror just over a decade back and has fringe elements lurking in the shadows to foment trouble. “The threat is real, very real, especially since large RDX hauls have been routinely intercepted in the state,” admitted a senior cop. Two major hauls in Ludhiana alone this year have yielded 59 kgs of RDX while a Khalistan Zindabad Force (KZF) consignment of arms, fake currency and RDX sent to Punjab to bump off the Dera Sacha Sauda chief Ram Rahim Singh was recently apprehended in two major raids at Amritsar and Ferozepur, both border areas. But there is some movement in the lethargic police force and it has decided to send a team to Mumbai to study lessons learnt after the recent attack there. Two days back, DGP N S Aulakh ordered all district police chiefs to set up QRTs and the government has hurriedly approved 2,000 new vacancies for the ageing ranks. “Something like Andhra Pradesh’s Grey Hounds, an elite anti-terror force raised to deal with Naxals is what we ideally want, except that the new force has to be trained to deal with urban terror strikes,” senior cops said. Aulakh added, “Security in the districts is being ramped up and the force is keeping an eye on all big hotels, malls, sensitive places et al and CCTVs are being installed at crowded places.” The force has recently written to the Union government to release funds for buying equipment meant for disaster management, a non-existent concept in the state so far. Efforts are also afoot to liaison with the NSG training institute at Manesar near Gurgaon to send some of Punjab’s best talents for exposure to the elite unit. Meanwhile, most top officers said their fingers are crossed to keep terrorists away.
Only 12,000 cops for 7 million in Karnataka
http://timesofindia.indiatimes.com/India/Only_12000_cops_for_7_million_in_Karnataka/articleshow/3786360.cms
3 Dec 2008, 0336 hrs IST, B K Ganesh, TNN
BANGALORE: The Karnataka and Bangalore police have often made a case for beefing up security in view of the shadow of terror, but little seems to have been done in either increasing staff strength or arming the personnel. For an urban agglomeration of Bangalore’s size with a population of 7 million, we have only 12,000 police personnel. The Mumbai terror attacks have made all of us reflect on the safety aspect of our cities. A city like Bangalore with its IT wealth and intellectual capital definitely requires much preparedness. Are our police competent to face any such eventualities? Are policemen equipped with suitable weapons and properly trained? What has the state government done after the serial blasts? Alarmingly, we don’t even have sufficient number of police personnel. As per norms, there should be 125 policemen for 1 lakh population, but Karnataka has only 92 policemen per lakh population. The strength of the Karnataka police is 80,000. Most policemen are on special duties like bandhs, rallies and VIP or VVIP security. Some are deputed to other cities also. Rampant transfers also affect the morale of personnel. After the serial blasts in Bangalore in July, there were several review meetings on security. Several proposals were mooted to upgrade the force. But nothing has happened on the ground. After the Mumbai terror strikes, there is talk of upgrading and modernising the force, filling vacant posts and training policemen and sending them to Israel and Scotland. Training: Terrorists attack with modern weapons like AK-47, AK-56 and grenades. Most of our policemen, even officers, don’t use such weapons. Our policemen are trained to fire .303 rifles, with no access to Kalashnikovs or SLR 7.6 at the training centre. The Karnataka government admits it’s not prepared to face attacks like the ones in Mumbai. The home minister admits we need more policemen and training. The chief minister asked IT-BT and industrial houses to look after their own security by appointing private security. But the government has not come out with any policy or regulations to train or give additional powers to have modern arms for them to safeguard their institutions. There are about 3 lakh private security guards in the state. But the government is yet to pass the 2005 Act passed by the Parliament regarding the regulation of private security forces. While other states like Maharashtra, Delhi, Tamil Nadu, Rajasthan and Gujarat have already passed the Bill, Karnataka’s home minister V S Acharya says the process is on. Country Police-People Ratio (per 1000 people) Hong Kong 4.79374 Malaysia 3.4 Thailand 3.3 Germany 2.9 Hungary 2.8 Spain 2.8 South Africa 2.7 Poland 2.6 Norway 2.4 Turkey 2.3 Australia 2.0 France 2.0 United Kingdom 2.0 Switzerland 1.9 Netherlands 1.9 Denmark 1.9 South Korea 1.8 Japan 1.8 Sri Lanka 1.7 Canada 1.7 Zimbabwe 1.6 Finland 1.5 Zambia 1.13 India 0.956207
Half of Haryana schools don’t have principals
http://timesofindia.indiatimes.com/India/Half_of_Haryana_schools_dont_have_principals/articleshow/3786320.cms
3 Dec 2008, 0324 hrs IST, Sukhbir Siwach, TNN
CHANDIGARH: Not all is well on the education front in Haryana. An RTI information has revealed that nearly 50% of government schools in the state are without headmasters. Out of the 2004 sanctioned posts, 984 have been lying vacant — 607 in high schools
and 377 in middle. The information has been provided by the education department in response to a query posted by Sat Pal, a Jind resident. According to the department, while 75% posts are filled via promotions, 25% are done through direct recruitment. “These vacancies exist even after the recent promotion of 426 teachers to headmaster posts,” claimed Ramesh Malik, spokesperson of the Haryana Masters Association. “Besides the 377 vacant posts (of headmasters), there are another 1200 middle schools where there is no provision of headmasters despite the fact that these institutions meet all conditions prescribed by the education department,” he added. In fact, lack of teachers and headmasters has remained the bane of school education. The Girls High School at Gorakhpur village in Fatehabad district got a headmaster about six months ago, after 14 long years. “Three years ago, the class X result was zero here,” revealed Balbir Singh, a social activist of the village. The residents had to meet education minister Mange Ram Gupta for the appointment of teachers and headmaster. “We asked the minister to either fill up the vacant posts or shut down the school,” added Harpal Singh, former MLA. Teacher appointments have helped matters. The number of girl students has gone up to 285 from 115 three years back. This, despite the fact that three posts of teachers are still lying vacant in the school. The nearby Mochi and Chobara village schools fare no better. They, too, are without headmasters. Speaking to TOI on Tuesday, education secretary Rajan Gupta claimed the government has already initiated the process of filling up all vacant posts of headmasters. The education minister had recently stated that promotions to fill these vacant posts have been pending for last many years due to a variety of reasons, including litigation.
102 Chandigarh cops booked for various cases
http://timesofindia.indiatimes.com/India/102_Chandigarh_cops_booked_for_various_cases/articleshow/3786312.cms
3 Dec 2008, 0316 hrs IST, Anilesh S Mahajan, TNN
CHANDIGARH: The UT cops seem to be all over the place, of crime that is. From rape to murder, drug/immigration rackets to economic fraud, they are into the world of crime; not chasing criminals, but playing the very role. An RTI document obtained by TOI reveals that 102 UT police personnel, from inspectors to constables, have been booked in 77 cases registered across the country. Out of these, 20 have been filed by the CBI, 10 by Punjab, three by the UT vigilance cell and one each by Delhi and Bihar. The `crime’ figure is high, considering the fact that there are only around 3,500 personnel in the UT police force. By rough estimates, it amounts to one cop in 35 facing criminal charges. In fact, the “criminal” UT cops seem to put their peers in Punjab in the shade. A 70,000-odd strong force, the Punjab police has been facing charges of “atrocities in terrorism days”. Figuratively speaking, only one out of 47 cops faces criminal charges. “We have to take cases individually and action would be taken accordingly. Our message is clear: we will not tolerate any illegal activity, not even by our own men,” UT SSP Sudhanshu Shekhar Srivastva told TOI. According to the RTI document, nearly 20 cops have been dismissed in criminal cases in the last decade or so. In a yet unsettled case, the UT police is contemplating dismissal of ASI Dalwinder Singh in a sodomy case. In another case, departmental inquiry was dropped following pendency of matter in court. However, dismissal has hardly proved to be a deterrent, considering the growing ranks of criminals in the force. Terming it as “a sheer failure of leadership to control their men”, civil rights activist and NGO Resurgence India’s Hatinder Jain claimed, “It is disgusting to see the people supposed to guard us indulge in criminal activities. It’s quite a scary scenario considering the fact that not all complaints against cops get registered.” Interestingly, out of the eight cases of fraud registered against the UT cops, the one registered at the New Delhi airport involves a personnel in kabootarbazi scam. NO CASE PENDING According to UT records, there is no case pending against inspector Har Sahai Sharma and Jagir Singh despite an FIR by the CBI. The agency had booked the two along with the then SSP Sumedh Singh Saini (at present director, vigilance, Punjab) for kidnapping with intention to murder and illegal detention of a Mohali man in the early 90s.
India not interested in Pak offer of joint probe
http://timesofindia.indiatimes.com/India/India_not_interested_in_Pak_offer_of_joint_probe/articleshow/3785709.cms
3 Dec 2008, 0209 hrs IST, TNN
NEW DELHI: Even as Pakistan’s foreign minister offered a joint investigation into the Mumbai attacks, it’s clear that India is not interested in such tokenism. In fact, sources in government were clear that since the joint anti-terror mechanism had not worked, Pakistan joining the investigations was irrelevant. On Tuesday, as more and more countries appeared ranged on India’s side in the fight against terrorism, Pakistani foreign minister Shah Mehmood Qureshi said he had offered the Indian government that Islamabad could join the probe. Pakistan, he said, had offered a “joint investigative mechanism and joint commission”. “We are ready to collectively reach to the bottom of this and to compose a team which can help you,” he said. The post-Mumbai probe has seen Indian investigators being helped by the FBI, Israeli Shin Bet and the UK’s Metropolitan counter-terrorism squad. India’s disenchantment with the joint anti-terror mechanism is not new but the government has persisted with this ill-conceived CBM, which Pakistan has often used as a propaganda platform against India. The mechanism was conceived in September 2006 by Prime Minister Manmohan Singh and foreign secretary Shivshankar Menon when he was preparing to meet Pervez Musharraf in Havana after a period of chill following the Mumbai train attacks which had a clear Pakistani imprint. The whole idea then was to pack terrorism into this mechanism which would allow the composite dialogue to go on unhindered. The Mumbai attacks have proved that the premise of the group was a flawed one. Not only has it not stopped any terrorist attack from Pakistan, it has not helped in a single investigation either. Instead, it has given Pakistan cover while pretending to the world that it was helping Indian concerns, while giving itself a kind of perverted parity with India which says that both countries are equal victims of terrorism. Mumbai proved otherwise.
Verdict on Kandhamal nun plea on Thursday
http://timesofindia.indiatimes.com/India/Verdict_on_Kandhamal_nun_plea_on_Thursday/articleshow/3785703.cms
3 Dec 2008, 0207 hrs IST, TNN
CUTTACK: Orissa High Court on Tuesday reserved its judgment on a Kandhamal nun’s petition to shift the venue of the test identification parade (TIP) out of the riot-hit district. After hearing the nun’s advocate and the government lawyer, Justice B K Patel reserved the judgment till Thursday. Appearing on the nun’s behalf, counsel J Chaudhry argued “the atomsphere in Kandhamal was not safe for her. She apprehended threat to her life there”. To substantiate his point, the lawyer added: “On November 10, a rumor spread that the nun was coming to Baliguda for the TIP by helicopter and hordes of people had gathered at the SDJM court to get a glimpse of the woman. The nun has been deeply traumatized by the incident and such an environment is not good for her.” He also stated that nun was suffering from post-trauma disorder and was undergoing spiritual counseling in Delhi.
Competition Law & Cartelization http://www.indlawnews.com/display.aspx?4381
Editor’s PickSowmya Suman
A cartel can be a outcome of either explicit agreements or implicit collusion. Explicit agreements occur when the cartel members actually meet to decide how to control the market. Because such collusion is illegal in jurisdictions with effective competition laws, such a agreement is secretive in nature. It may be a result of secret meetings, which might involve nothing more than a ‘casual’ lunch or a ‘coincidental’ meeting at any forum of industry executives.
People, who combine together, to keep up prices, do not shout it from the housetops. They keep it quiet. They make their own arrangements in the cellar where no one can see. They will not put anything into writing nor even into words. A nod or wink will do. Lord Denning
A cartel can be a result of either explicit agreements or implicit collusion. Explicit agreements occur when the cartel members actually meet to decide how to control the market. Because such collusion is illegal in jurisdictions with effective competition laws, such a agreement is secretive in nature. It may be a result of secret meetings, which might involve nothing more than a casual lunch or a coincidental meeting at any forum of industry executives.
Cartels have the capacity to adversely affect consumer welfare and the economy of a country. The most common activity undertaken by cartels is price-fixing which eventually results into artificial increase in prices.
According to the Hard Core Cartel: Organization of Economic Co-operation Development (OECD) Third Report on the implementation of the 1998 Recommendation, Japan has estimated that recent cartels raised prices on an average by 16.5 per cent. In Sweden and Finland, competition authorities observed price fall of 20-25 per cent following enforcement action against asphalt cartels. In the United Kingdom, the football replica kits case has resulted in long-term price reduction to the extent of 30 per cent following the enforcement action of the Office of Fair Trading. In Israel, the competition authority observed that prices fell by approximately 40-60 per cent after it uncovered a bid rigging cartel among envelope producers. Estimates in the United States suggest that some hard core cartels can result in price rise of up to 60 or 70 per cent. Based on a review of a large number of cartels, it is estimated that the average overcharge is somewhere in the 20-30 per cent range, with higher overcharges for international cartels than for domestic cartels.
The harmful effects of cartel have also been elucidated in the European Union XXXII Report on Competition Policy, 2002. It states that cartels diminish social welfare, create allocative inefficiency and transfer wealth from consumers to the participants in the cartel by modifying output and/ or prices in comparison with market-driven levels. Engaging in cartels to avoid the rigours of competition can result in the creation of artificial, uneconomic and unstable industry structures, lower productivity gains or fewer technological improvements and sustained higher prices. Furthermore, the weakening of competition leads to a loss of competitiveness and threatens sustainable employment opportunities.
The effect of cartelization is seen more in the developing countries. The instances of cartels in India have been witnessed in various sectors like, cement, tyres, steel, family planning device (Copper T), etc. India has also been a victim of international cartel in soda ash, bulk vitamins, petrol, etc. The business houses are affected most by cartels as the cost of procuring inputs is augmented or choice is restricted making them uncompetitive, unviable or be satisfied with less profits. This is mainly due to the absence of competition regime and inefficient investigating mechanism for detecting and prosecuting domestic as well as international cartels.
Incidences of Cartels International & Indian
Price-fixing in the petrol sector
According to OECD Annual Report on Competition Policy Developments in Brazil (2002), the Administrative Council of Economic Defense (CADE) has fined Sindiposto, an association of petrol stations, and its President a total of approximately US$ 105,000 after Sindiposto was found to have engaged in price-fixing by having advised its members to set prices and profit margin for fuel sales, as well as concerted price increases. According to a CADE official, cartelization attempts of the petrol sector in Brazil has been a subject of more than 30 investigations by the Brazilian competition authorities out of a total of about 260 cartel investigations. According to information released by the Secretariat of Economic Law, 56 per cent of cartel complaints relate to the petrol sector.
Cement Cartel
In Argentina, five cement companies were prosecuted for operating a cartel that lasted for 18-years from 1981 to 1999 and the Argentine authority imposed a total fine of US$ 107 million, which is more than three times the highest fine assessed by Argentine authority in any previous case. Romania also fined total EUR 28,500,000 on its three cement companies for their participation in a cement cartel and the fine represented 6 per cent of the companies annual turnover.
International Vitamin Cartel
In April 2003, the Korea Fair Trade Commission (KFTC) decided to issue corrective order and impose surcharge on six vitamin producers belonging to Switzerland, Germany, France, Japan and the Netherlands, who participated in the vitamin international cartel. The amount of surcharge aggregated more than USD 3 million in total.
These six companies, accounting for 90 per cent market share in the world bulk vitamin market, agreed to allocate the sales volume and coordinate price of bulk vitamins such as vitamin A, E, B5, D3, and Beta Carotene in the global market. Vitamins A, E and beta-carotene are important inputs for the production of foods, medicine, cosmetics and animal feed. Bulk vitamin is used in manufacturing animal feeds, medicine, foods and cosmetics. The concerned industries in Korea were learnt to have imported bulk vitamin of about US$185 million during the above period from the six companies. As the conspiracy affected the Korean economy throughout the 1990s, the behavior of these firms affected all Korean citizens, who were prevented from benefiting from the price reductions that would have resulted from a competitive market.
Soda Ash Cartel
In September, 1996, American Natural Soda Ash Corporation (ANSAC) comprising of six American producers of soda ash attempted to ship a consignment of soda ash at cartelize price to India. Based on the ANSAC membership agreement, the MRTP Commission held it as a prima facie cartel and granted interim injunction in exercise of its powers in terms of section 14 of the Monopolistic and Restrictive Trade Practices Act, 1969. The Supreme Court, however, overturned the order of the Commission inter alia, on the ground that it did not give it any extra territorial reach to restrict.
Trucking cartel
It is often seen in the trucking industry that freight rates are fixed by the truck operators to eliminate competition from the market. This is done without any liberty to the members of the truck operator union to negotiate freight rates individually. A Cease & Desist order against Bharatpur Truck Operators Union vide order dated 24.8.1984 in RTP Enquiry No.10/1982, Goods Truck Operators Union, Faridabad vide order dated 13.12.1989 in RTP Enquiry No.13.13.1987, Rohtak Public Goods Motor Union vide order dated 25.8.1984 in RTP Enquiry No.250/10983 were passed by the MRTP Commission. However, no fines were imposed.
Cartelization in the bidding process of Railways
Business Standard of 2nd July, 2008 carried a news item stating that according to a Competition Commission-sponsored Report, cartels, bid rigging and corruption plague Indian Railways procurement, which runs into thousands of crores every year. The Energy Research Institute (TERI), commissioned by the Competition Commission of India (CCI), revealed that in 2006, nine firms participated in a tender for procuring high speed cast steel bogies, of which seven quoted the same price of Rs. 99,638/- per bogies for less than 50 per cent of the requirement. The Report concluded that there are cartels operating in railway procurement.
The Audit Report of Comptroller and Auditor General of India (CAG), 2006, examined 19 items and highlighted that there was cartel formation in nine out of 31 tender cases examined for pre-decentralization period. The Report also provided that there was cartel formation in 47 tender cases issued by zonal railways for the same item after decentralization.
Anti-competitive Agreements under the [Indian] Competition Act, 2002
Section 19 of the [Indian] Competition Act, 2002 (the Act) provides that CCI may inquire into any alleged cartel (anti-competitive agreement) on receipt of any information from any person, consumer or their association or trade associate. To avoid furnishing of false information, the Competition Act prescribes for payment of very high fee, for the information furnished to be entertained by CCI, hence, making the probability of receiving wrong information, almost nil.
Anti-competitive Agreements are those agreements which causes or are likely to cause Appreciable Adverse Effect on Competition (AAEC). The Act provides for two kinds of Anti-competitive Agreements i.e., horizontal agreements which are presumed to have AAEC and vertical agreements having AAEC which is to be determined by rule of reason.
Agreements between the enterprises at the same stage of production chain are termed as horizontal agreements. For instance, agreement between two rivals is a horizontal agreement. In cases of agreements between rivals for fixing prices or for limiting production or for sharing markets, there is a presumption under the Competition Act that such agreements cause or are likely to cause AAEC.
Vertical agreements, on the other hand, are those that are between enterprises at different stages of the production chain. For example, an agreement between the manufacturer and a distributor is a vertical agreement. The presumptive rule as applicable to horizontal agreements does not apply to vertical agreements. The question whether the vertical agreement is causing AAEC is to be determined by rule of reason, which essentially means that the positive as well as the negative impact of such agreement on competition will have to be taken into account before coming to any conclusion.
Joint ventures which increase efficiency in production, supply, distribution, storage, acquisition or control of goods or provisions of services are not presumed to have AAEC. Since exports do not impact markets in India, horizontal agreement(s) between exporters is exempted from the mischief of anti-competitive agreements under the Act.
Cartels are included in the category of horizontal agreements presumed to have AAEC. Establishing AAEC is the key factor before any agreement is termed to be anti-competitive and declared void. In case of horizontal agreements that are presumed to have AAEC, the burden of proof shifts on the enterprise or person against whom the charge is framed. Such agreements includes
(1) directly or indirectly fixing the prices;
(2) limiting or controlling production, supply, markets, technical development, investment or provision of services;
(3) sharing or allocation of geographical area of market, customers or in any other similar way; and
(4) directly or indirectly resulting in bid-rigging or collusive bidding.
Detecting Cartels
According to the report prepared by ICN Working Group on Cartels, the fight against cartels is legally and practically a uphill task. Firstly, cartelists are by definition secretive about their illicit behaviour, and therefore agencies have to undertake great efforts to detect cartels. Secondly, agencies need additional powers and skills to collect sufficient evidence to mount a viable case against uncooperative defendants. Thirdly, only in the cartel area, do agencies operate sophisticated leniency programmes to destabilize such conspiracies. Fourthly, the investigation of international cartels tests the limits of agencys jurisdictional reach. Last but not the least, the growing trend to criminalize cartel behaviour obliges many agencies to work to a particularly high standard of procedure and proof.
Special skills are required for cartel busting which are different from the skills required for investigation and prosecution of other infringements of competition law. The focus is on proving the existence of an arrangement itself rather than establishing its impact on the market in economic terms.
Section 19 of the Act provides that CCI may inquire into any alleged cartel on receipt of any information from any person, consumer or their association or trade associate. To avoid furnishing of false information, the Competition Act prescribes for payment of very high fee, for the information furnished to be entertained by CCI, hence, making the probability of receiving wrong information, almost nil.
Section 41(2) of the Act, 2002 confers upon the Director General, in the discharge of his duties, the powers as are vested in a Civil Court under the Civil Procedure Code, 1908. By virtue of this section, the Director General is empowered to summon, demand production of documents, receive evidence on affidavit and issue commissions for the examination of witnesses or documents. The Director General or any person investigating under his authority has the powers as are vested in the Inspector in terms of sections 240 and 240A of the [Indian] Companies Act, 1956. Thus, the Director General or any person investing under his authority also has the power to demand production of documents and evidence which are in the custody of a body corporate and power to search and seizure with the approval of the First Class Magistrate having jurisdiction where he has reasonable grounds to believe that books, papers or documents may be destroyed.
Leniency Programme International Experience
Since the harmful effects of cartel have gained global recognition and consensus, many countries have developed special tools to fight cartels. Amongst others, leniency programme is the most important and effective tool. Leniency programme is somewhat akin to the concept of Plea Bargain/ pardon under the Criminal Law, where, in respect of the offence committed, the guilty admits the offence and agrees to bring home the guilt of others.
According to Global Competition Review on Anti-trust Reviews of the Americas, the proliferation of leniency or amnesty programme has significantly contributed in the development of national and international anti-cartel enforcement in prosecuting national and international conspirators. It provides the enforcement authorities a highly effective tool for bursting cartel activity. It provides cartel members a strong incentive to inform about the co-conspirators. The intention of a leniency programme, through increased detection of cartels, is to increase the level of compliance with anti-trust or competition laws, which then benefits the community through increased competition. Predictability, transparency and consistent application are the hallmarks of a successful leniency programme.
The two important dimensions of a leniency programme are: (i) the criteria for being awarded amnesty, including the stage of the investigative process at which leniency is possible, the maximum number of firms that can apply for leniency, and the eligibility criteria for leniency; and (ii) the extent of penalties that are waived when amnesty is awarded to any firm.
Leniency provision under the [Indian] Competition Act, 2002
Leniency provision is incorporated under section 46 of the Act. If the requirements of section 46 are met, CCI is empowered to impose lesser penalty in cartel cases.
Section 46 provides that, if any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of alleged violations and such a disclosure is vital, the CCI may impose upon him a lesser penalty than as prescribed under the Act or rules or regulations. However, lesser penalty shall not be levied where before making such disclosure, the report of investigation directed under section 26 has been received. Further, lesser penalty shall be imposed only in respect of the producer, seller, distributor, trader or service provider included in the cartel, who has made full, true and vital disclosures.
The provision for lesser penalty under section 46 shall cease to operate if the person making the disclosure does not continue to cooperate with the CCI till the completion of proceedings before the CCI. Section 46 further provides that any producer, seller, trader or service provider included in the cartel shall also be liable to imposition of penalty, if in the course of proceedings, he had i) not complied with the condition on which the lesser penalty was imposed by the CCI; or ii) given false evidence; or iii) the disclosure made is not vital.
Further the CCI, under section 33 of the Act is empowered to, by order, grant interim/ temporary injunction, during the pendency of an inquiry, restraining all members or any member of the alleged cartel from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the parties, where it deems necessary.
Conclusion
Cartels have inherent characteristics to adversely affect the economy. The artificial price rise seen in the cartel cases, endorses this fact. The ultimate victims of cartelization are the consumers and the business houses. Cartels not just have monopoly over price of a product but also restrict other private market players to enter in the market. Cartel formation will be difficult and unsustainable if effective competition persists in the market. However, high concentration, homogeneity of products, excess capacity, high dependence of the consumers on the product, high entry and exit barriers give a favourable environment to the cartels to grow. The effect of recent instances of cartels detected in the petroleum sector, railways, cement, cartel in drug industry detected in the US etc. makes it evident that cartelization undoubtedly is a catalyst for fiscal irregularities.
The Prohibition of Anti-Competitive Agreements presumed to have AAEC, i.e., cartel, would be one of the core enforcement areas of the Competition Act once it is made effective. The Act has well defined and clearly laid out provisions which discourage the formation of cartels. The provision of search, seizure and raid has also been clearly laid down in the Act. Its effectiveness largely depends on the formation of the investigating team and coordination with the other agencies. Thus, the need for and usefulness of requisite capacity building to undertake Search and Seizure is unavoidable to make meaningful use of the provisions of the Act in detecting cartels. Further, the Competition Act empowers the CCI to impose heavy penalty for entering into anti-competitive agreements. The CCI may impose upon the co-conspirators involved in a cartel a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.
It is, therefore, imperative in the larger interest of the consumers and the economy as a whole to urgently operationalise the Competition Act in letter and spirit.
(Author is a Consultant, Global Tax Advisory at Ernst & Young)
Editor’s Pick
Settlement of Investment Disputes-Washington Convention- Indian consideration
http://www.indlawnews.com/display.aspx?4382
International investment lacks clarity. There is no specific law governing international trade and commerce. In case of disputes arising between parties arbitration is an easy recourse. Arbitration has numerous advantages over the more-traditional judicial process such as the ability to predetermine what national or international law will apply to govern the dispute, the ability to formulate the scope of the arbitration agreement; and the ability to agree, before a dispute arises, how such disputes will be adjudicated and decide the method of dispute resolution and the applicability of the result without knowing the particulars of the dispute.
In order to facilitate investment flows among countries and settle investment disputes the World Bank formed The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID or the Washington Convention) which came into force on October 14, 1966.
The Convention consists of over 140 member States. The Washington Convention of March 18, 1965 established the International Centre for the Settlement of Investment disputes (ICSID), designed to help solving investment disputes between states and nationals of other contracting states. ICSID is an autonomous international institution of the World Bank Group,[1][1] Washington D.C, was established in 1966, under the Convention.
ICSID provides facilities for conciliation and arbitration of international investment disputes between member countries and individual investors. While international commercial arbitration focuses on dispute settlement between private parties, and inter-state arbitration involves only states, ICSID arbitration oscillates between international commercial arbitration and interstate arbitration.
A basic advantage of this Convention is that both parties to the dispute settlement are granted an increased certainty about the way in which case will be handled as well as on the possibilities of execution. The aim behind the Convention was to foster confidence between States and foreign investors conducive to increasing the flow of private international investment. The Convention sought to remove major impediments to the free international flows of private investment posed by non-commercial risks and the absence of specialized international methods for investment dispute settlement. ICSID was created by the Convention as an impartial international forum providing facilities for the resolution of legal disputes between eligible parties, through conciliation or arbitration procedures. According to Article 42(1) of the ICSID Convention unless the parties have specifically agreed otherwise, the arbitral tribunal must decide a dispute in accordance with the law of the host state, along with such rules of international law as may be applicable.
Articulating the reason for the establishment of ICSID, Ibrahim Shihata, then Secretary General of ICSID stated that ICSID should not be viewed merely as a mechanism of conflict resolution. It should be regarded as an effective instrument of international public policy which is meant in the final analysis to secure a stable and increasing flow of resources to developing countries under reasonable conditions.
Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the ICSID Convention, neither can unilaterally withdraw its consent.[2][2] Moreover, all ICSID Contracting States whether or not parties to the dispute, are required by the Convention to recognize and enforce ICSID arbitral award.
After the ICSID Convention came into force provisions under international investment contracts referring to arbitration under the ICSID is a common feature. Countries refer to ICSID in the contracts to increase foreign investment.
Venues for ICSID proceedings include Washington, D.C., the Permanent Court of Arbitration at The Hague, the Regional Arbitration Centres of the Asian-African Legal Consultative Committee at Cairo and Kuala Lumpur, the Australian Centre for International Commercial Arbitration at Melbourne, the Australian Commercial Disputes Centre at Sydney, the Singapore International Arbitration Centre, the GCC Commercial Arbitration Centre at Bahrain and the German Institution of Arbitration (DIS).
Arbitration under the auspices of ICSID is similarly one of the main mechanisms for the settlement of investment disputes under four recent multilateral trade and investment treaties (the North American Free Trade Agreement, the Energy Charter Treaty, the Cartagena Free Trade Agreement and the Colonia Investment Protocol of Mercosur).
In the recent times, there has been an increase in the number of cases referred to the ICSID. Over 70 cases have been registered by the ISCID.[3][3]
The Convention does not define the term Investment. Two drafts of the term Investment was presented before the Convention delegates but both did not find support. A British proposal that omitted any definition of the term investment was adopted by a large majority of members of the legal committee.[4][4] In other words, the delegates negotiating the Washington Convention deliberately omitted to include a clear definition of the concept of investment in the ICSID convention. Some wisely advocated that, since parties were not obliged to subscribe to the jurisdiction of the centre, those who would accept to refer their case to ICSID arbitrations were those who considered that the dispute was manifestly related to an investment. In this way, the definition of the notion of investment is considered to be left over to the parties.
India is not a member of the ICSID. India refrained from being a part of the ICSID as it felt it would entail conceding sovereign space.[5][5] In the 60s when the Convention came into force, India was not economically developed and not much international trade and investments were conducted. As a reason India kept out of the Convention.
But in todays time when India is at its economic peak and is one of the fastest growing economies of the world, India cannot afford to restrict itself from international conventions such as the ICSID Convention.
Compared to the New York Convention of which India is a member, ICSID awards are easier as these awards may not be challenged.
ICSID is independent of the partie”s willingness to cooperate. If a party does not cooperate in choosing the tribunal, it can be done by substitution. If a party does not participate in the arbitration process, the hearing and the award can be proceeded with in absentia of this party.
ICSID is a supranational institution, specializing in investment disputes. Thus, it not only denationalizes the arbitration proceedings, it also guarantees high competence in investment and trade matters.
There are also few disadvantages of ICSID which may be what India might have considered as reason for not joining the Convention. ICSID awards cannot be challenged except on limited grounds. No government has the right to challenge the award before its local court.[6][6] Nevertheless, an unsatisfied party can initialize annulment proceedings. Although grounds for annulment are very restricted, there have already been a number of such proceedings concerning ICSID awards.
With increase in the number of international investments such as takeovers, buyouts, joint ventures with overseas companies and strategic investments there is a need to recognise the international dispute settlement forum as it would make international contracts flexible and party friendly. It opens up opportunities and offers better negotiations in international contracts. Economic liberalism is premised on the assumption that foreign investment is beneficial to host states. As such, it flows from this premise that such investment should be protected through the provision of investment protection mechanisms including international dispute resolution. The ICSID Convention attempts to give private parties a place in international economic relations and access to international dispute resolution. This enables private investors to feel safe in their dealings with host countries and the host countries are assured of the absence of international politics in their commercial relations with private investors. For expanding investment and trade and considering the present scenario of international trade, India needs to consider membership of the Washington Convention.
(Author is an advocate at Kanth and Associates, Delhi)
[1] http:// www.worldbank.org/icsid/
[2] Article 26 of Washington Convention
[3] Christoph Schreuer, The ICSID Convention: A Commentary, at http://www.dundee.ac.uk/cepmlp/journal/html/schreuer.html
[4] Dominique Grisay, International arbitration: the ICSID Convention: a convenient solution for companies in conflict with states, The Bulletin Volume 6 Issue 1 at http://www.imakenews.com/iln/e_article000763642.cfm?x=b11,0,w
[5]http://economictimes.indiatimes.com/News/Economy/Foreign_Trade/New_Delhi_plans_to_join_Investment_Disputes_Convention/articleshow/3478075.cms
[6] http://www.mallesons.com/publications/update/2005/8151043w.htm
Euthanasia and the society
http://www.indlawnews.com/display.aspx?4379
Pralika Jain
Euthanasia is mainly associated with people with terminal illness or who have become incapacitated and dont want to go through the rest of their life suffering. A severely handicapped or terminally ill person should have the right to choose to live or die. The right to choose to live or die should not be a right allocated for bodied individuals of sound mind but to all human beings. Euthanasia is a controversial issue which encompasses the morals, values and beliefs of our society.
The main argument comes down to whether or not someone should have to prolong their life even though their death may be near and have to suffer through that time period. The people that go against euthanasia feel that if this is legalized and not looked upon as murder it will lead to people in hospitals and nursing homes not receiving the treatment that may be necessary for them to sustain life. While people on the other side of the argument feel that people that cannot carry on a productive lifestyle under which they are under high amounts of suffering and are lying around waiting for their day of death to come should not have to be put through this torture.
Life is taken for granted all too often; people always look for the shortcuts, the easy way out. Death should never be a persons last resort; there will always be an alternative. Humans cannot be compared to animals either. We cant be taken to a veterinarian to be put to sleep. It is immoral and dehumanizing. One of the greatest minds in history that: Firstly, under the head of necessary duty to oneself: He who contemplates suicide should ask himself whether his action can be consistent with the idea of humanity as an end in itself. If he destroys himself in order to escape from painful circumstances, he uses a person merely as a mean to maintain a tolerable condition up to the end of life. But a man is not a thing, that is to say, something which can be used merely as means, but must in all his actions be always considered as an end in himself.
People rarely take into consideration how precious life is. Feelings of depression and guilt often overwhelm the sick. They only think of one way out. If euthanasia were to be legalized, the already declining morals and ethics of this country would be further compromised. Making it legal to kill is immoral, and goes against our duties in society.
Types of Euthanasia
There are two types of euthanasia, active and passive. Active euthanasia is the intentional killing of a person by medical personnel either by a lethal injection or by denying ordinary means of survival. The act of euthanasia called passive euthanasia is committed by denying or withholding ordinary medical care to a patient.
The act of mercy killing can be compared to that of active euthanasia. An example of mercy killing takes place every day without much thought if it is right or wrong. Family pets such as dogs and cats are, put down, when the owner sees that the animal is in constant pain due to illness, most people feel that it is the humane thing to do. This type of humane treatment for animals has been taking place for years. It can not be understood that society would let a human life suffer for years. Forcing someone who no longer wants to live, to live a life full of pain and misery. The humane response to this would be choosing euthanasia, giving freedom to the individual from their pain and unhappiness.
Euthanasia in India
India is a country highly influenced by religion and orthodox beliefs. It is a cosmopolitan country with an amalgamation of many cultures, traditions and religions.
The religions which come close to the acceptance of euthanasia and are prevalent highly in the Indian society. The first is Hinduism, which concentrates on the consequences of actions. Their doctrines outline that euthanasia cannot be allowed, as it breaches the teaching of ahimsa (doing harm). However, in contrast to this, doing a good deed would be fulfilling a moral obligation. The second is Buddhism. Buddhists believe the way a life ends, will influence greatly the way the next life begins. The transition between an existing life and the next depends on an individuals Karma at the point of death; however, there is no telling if the next life will be an improvement from the last. When a Buddhist dies their state of mind should be selfless, enlightened, free of anger, hate or fear.
The current legal position on euthanasia and assisted suicide in India
In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and suicide are different, distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre vs Union of India observed:
Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating ones own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.
The law in India is also very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305and 306 of the IPC.
Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur vs State of Punjab[1] it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it.
Euthanasia and the law
Currently, under Canadian law euthanasia is prohibited.
In Holland euthanasia has been accepted, in principle for terminally- ill patients, on request. Even though euthanasia is not yet legal in Holland, it is legally tolerated.
Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assistance in dying in very specific cases, under very specific circumstances. The law was proposed by, Els Borst D66 minister of health. The procedures codified in the law had been a convention of the medical community for over twenty years.
The law allows medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:
(1) the patients suffering is unbearable with no prospect of improvement;
(2) the patients request for euthanasia must be voluntary and persist over time (the request can not be granted when under the influence of others, psychological illness or drugs);
(3) the patient must be fully aware of his/her condition, prospects and options;
(4) there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above;
(5) the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present; and
(6) the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents).
The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of will of the patient regarding euthanasia (euthanasia directive). Such declarations can be used when a patient is in a coma or otherwise unable to state whether they want euthanasia or not.
Euthanasia remains a criminal offense in cases not meeting the laws specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice:
(1) stopping or not starting a medically useless (futile) treatment;
(2) stopping or not starting a treatment at the patients request;
(3) speeding up death as a side-effect of treatment necessary for alleviating serious suffering; and
(4) Euthanasia of children under the age of 12 remains technically illegal.
Settling the debate
A close perusal of the arguments against euthanasia that have been summarised above tends to indicate that all the talk about sanctity of life notwithstanding, the opposition to euthanasia breeds from the fear of misuse of the right if it is permitted. At this juncture it would not be out of place to mention that the liberty to die, if not a right, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court has held that such an interpretation of Article 21 is incorrect, but it is submitted that one may try to read the freedom to die as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England (refer to the Section dealing with position of euthanasia in other countries). Since the said rights in turn have been held to be included within the ambit of Article 21, the freedom to die too would logically be covered by Article 21. This argument is put forward as a possible solution since such questions were not put before the Apex Court in Gian Kaur case. It is submitted that in the present scheme of criminal law it is not possible to construe the provisions so as to include voluntary euthanasia without including non-voluntary and involuntary euthanasia. Parliament should therefore, by a special legislation legalise voluntary euthanasia while expressly prohibiting non-voluntary and involuntary euthanasia. Legalising euthanasia would not have any effect on the provisions relating to suicide and abetment thereof as euthanasia and suicide are two completely different acts.
(Author is a 3rd year student of Government Law College, Mumbai)
Liability of Woman under section 376 of Indian Penal Code http://www.indlawnews.com/display.aspx?4355
Editor’s Pick
Satyam Thareja & Nidhi Barad
If one would observe the approach of law towards matter of rape in the Indian Penal Code, 1860 it is feminist. The approach at the time of making of the IPC, 1860 certainly would have been justified with respect to stature of woman at that time. But as we all know, the world has changed and the so the behaviour of woman. Those women who used to be subjected now are taking steps ahead along with men. The law on the other side has not changed proportionally. Growth of law is primarily because of legislations, precedents, and customs and practices. One should also keep in mind that the former two are dependent on the latter. Over this period the practices have certainly changed. The society has progressed to such an extent that woman certainly have achieved a higher stand in the society and certainly have become influential but with respect to law the standpoint is still where it was more t
INTRODUCTION
Criminology has treated womens role with a large measure of indifference. The intellectual tradition; the root of conception of criminology maintains esteem for mens autonomy, intelligence and force of the character while disdaining women for their weakness of compliance and passivity. Much of the literature in the field of criminology has paid attention to either women or their crimes and motivations and study of womens criminality remains in its infancy even today. The few studies that test traditional criminological theories while accounting for gender have had nominal success explaining crime committed by women, thanks to the underreported rate of crime committed by women. In order to understand why offending and punishment differs between genders it is important to acknowledge and analyze past perceptions, theories and perspectives from predominant sociologists and criminologists of that time towards women in the society.
In recent past, women were virtually invisible in the literature on crime. Until recently, the problems posed by female criminality were generally ignored in most text books or were added as a foot-note to the discussion in male criminality. In these account criminality was assumed to be a male characteristic and therefore explaining male criminality in most of the criminology theories, leading to anti-male laws.
When it comes to crime, until the last twenty years, the lack of literature on female criminality is often astounding. One reason given for lack of interest is that females have traditionally been seen as law-abiding. It is certainly true in the context of what the statistics speak but sex crime ration differ depending on what act is being considered as crime. The different involvement in crime of men and women is one of the most striking and criminological truth, and it is therefore surprising that it has been more widely studied in order to ascertain what causes this difference.
When the female was considered, she was generally seen as being inferior to the male. Although conformity was generally to be appreciated, when women conformed, it showed their inferiority. This inferiority was of the same type, whether it was seen as arising out of biological, psychological or social reasons. The male was seen as independent, autonomous, intelligent, active, assertive, rational, unemotional, competitive, immature, achieving and objective as compared to woman who was seen as dependent, passive, uncompetitive, immature, unchaining, unintelligent, and emotional.
Up till the turn of the century, women were primarily perceived as sexual objects and expected to remain in the male dominated ideologies. The starting point on the issue of acknowledgment of female offenders in general may be Elizabeth Frys campaign in nineteenth century for separate housing for women in prison and rehabilitation facility. Even then the conception was not to hold women responsible for the crime rather it was to protect a female criminal from a male criminal.
A contemporary stand exhibits a different situation altogether. Women have progresses and now stand equal to men. The above said, does not mean that crimes subjected against women have stopped or women are not subjected to cruelty anymore. The contention is that the scenario right now is something in the middle of transition. Women are gaining equality in society, of which some have already done that, and achieving respective marks in run of society. The perspective that a man is powerful and may not be subjected to any pressure or may not be dominated is not substantiated with social circumstances any more. The need of the hour is to crack a solution which satisfies both the view points or rather happening simultaneously.
The present paper primarily relies upon the judgment of Priya Patel vs State of M.P. and then provides an anti feminist view of the stand and elucidates how and why now exists a need to provide an interpretation which could serve the purpose in the present scenario.
PRIYA PATEL vs STATE OF M.P.[7][1]
The present case holds its importance for being the only celebrated case in which the question whether a lady may be prosecuted for gang rape has been taken up. It is an appeal filed against the decision of the High court of Madhya Pradesh. The rationale given by the High court was that though a woman could not commit rape, but if a woman facilitated the act of rape, she could be prosecuted for gang rape.
The facts of the present matter were that the prosecutrix was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC, the appellant was charged for commission of offences punishable under Sections 323 and 376(2)(g) of IPC. The revision filed before the High Court questioned legality of the charge framed so far as the appellant is concerned, relatable to Section 376(2) (g) IPC. It was contended that a woman may not be charged for commission of offence of rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape.
The Supreme Court, apparently, had a different view. The present appeal was allowed. The apex court held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape. The rule is based on the principle of common intention as provided in section 34 of the IPC. Common Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common intention which in such a case may be common intention to rape. Since such intention may not exist with a woman, as given in the definition, a woman may not be held liable for gang rape as well.
A contention was raised by the counsel of the state that the woman may be held liable for Abetment as under section 108 of the IPC. The court on this said that such contention should have been raised in the trial court or in High Court, but it may not be done here.
A person when instigates a crime or assists in its pursuance may be held liable for Abetment of crime. Even in the present matter if it may have been taken up, then appellant may have been convicted on the charge of abetment of rape but then a new issue may have come up. This may have lead to a discrimination on basis of sex with a man is deemed to have common intention and therefore must be held liable for rape but on the other hand a woman, doing the same act as the man was, might be liable for abetting the crime. This being on the grounds of the fact that it is conceptually inconceivable, as in accordance with the meaning of the word rape, as given in Section 375 of the IPC.
RAPE UNDER SECTION 375 OF THE INDIAN PENAL CODE
Section 375 of the IPC provides that a man is said to commit rape whoever has sexual intercourse with a woman under certain circumstances. The foremost requirement for the section 376 to be invoked is that there should be sexual intercourse. Sexual Intercourse refers to heterosexual intercourse which has been interpreted as penile/vaginal sex. The issue here is that why only man is supposed to commit rape. It is certainly established that the described intercourse happens when the penile of a man enters the vagina of the woman. Now the conception here on which it is based is that a man is powerful than woman and may influence the woman. Moreover, psychologically, it is deemed that erection of penile is volition of the man. The erection of penile is a result of stimuli which is then affected by hormones. It is nowhere that the intention may of the man only.
This may be explained by a hypothetical instance; a woman is a managing director of a company. She gives a promotion to an employee and makes him the director of the firm and kept him on the assignments which were supposed to be done with her. One day, she asks him to sexually satisfy her; otherwise he might lose his job. There is a possibility that he does not succumb to pressure and opts out but there is also a possibility that he has to succumb to it. Here, although the threat was not grievous but still damaging. But, what if, this threat may have been of life. Sexual satisfaction is to both the individual who take part in the intercourse.
The definition given in section 375 stands applicable but at a time when the stand of woman was not so upon the society as it exists today. The times have changed and a judicial interpretation compatible with contemporary scenario needs to be given so as to prevent perverse from aggravating. This contention has been brought forth the Supreme Court in the case of Saakshi vs Union of India and Others.[8][2], whereby it was contended that the definition of the sexual intercourse should be expanded as rape is a crime as it causes emotional trauma to the victim and with time the term intercourse has gone beyond the parameters of penile/vaginal and now should also include penile/anal, penile/oral, object/vaginal etc. Although these do fall under the category of unnatural sex but are relatively less serious offences.
The lack of tracking of sexual crimes against men and the lack of research about the effects of male rape are indicative of the attitude held by society at large that while male rape (sexual assault) occurs, it is not an acceptable topic for discussion.
Therefore, a new notion of rape needs to be provided and a new interpretation to the provisions of the Indian Penal Code for sexual offences needs to be given.
THE ANTI-FEMINIST APPROACH
In nineteenth century, Lombroso and Ferrero (1895) wrote a book called, The Female Offender. Their theories were based on atavism; a belief that all individuals displaying anti-social behavior were biological throwbacks. The born female criminal was considered to have the criminal qualities of men and the worst qualities of women. Other predominant theories such as Thomas (1907) and later, Pollack (1961), believed that criminality was a pathology and socially induced rather than biologically inherited. As Thomas (1967) says, the girl as a child does not know she has any particular value until she learns it from others (Thomas, 1967: 68). Pollack (1961) believed, it is the learned behaviour from a very young age that leads girls into a masked character of female criminality, that is, how it was and still is concealed through under-reporting and low detection rates of female offenders. He further states, in our male-dominated culture, women have always been considered strange, secretive and sometimes dangerous (Pollack, 1961: 149). A greater leniency towards women by police and the justice system needs to be addressed especially if a true equality of genders is to be achieved in such a complicated world.
Although it may be true that society has changed since the days of Lombroso and Ferrero, past theories appear to remain within much of todays criminal justice system. Women have so many choices of which they didnt before. It may appear naive to assume that women and crime may be explained by any one theory. Any crime for that matter, whether male or female, may not be explained by any one theory. It is an established and non-arguable fact that males and females differ biologically and sociological influences, such as gender-specific role-playing appears to continue within most families. Its a matter of proportion not difference. According to Edwards (1984), the enemy is within every woman, but is not her reproductive biology; rather it is the habit regarding it into which she has been led by centuries of male domination
In light of this demographic shift in incarcerated populations, and the failure of traditional criminology to account for womens crime, some criminologists have begun taking steps to fill the void in the criminological literature that addresses female criminality. The feminist pathways research is explicit in its pursuit of life events that lead/force/nudge women into crime, and so is often ethnographic and uses retrospective data (i.e., interviews with incarcerated women asking them how they ended up in jail) to develop an understanding of the key transitions in womens lives that place them in jeopardy of entering the criminal justice system.
This unequal position of women in society due to social oppression and economic dependency on men and the state needs to be addressed. Offences by women remain sexualised and pathologised. In most ways, crimes women commit are considered to be final outward manifestations of an inner medical imbalance or social instability. Their punishment appears to be aimed principally at treatment and reconciliation. The victimisation of women in medicine seems to be for her own good or in her best interests. Many argue, the main culprit for aggression as seen in many men is testosterone. This hormone appears responsible for much of the male crime, even in todays society of increased knowledge on the subject. In contrast, extensive research over the past twenty-five years done on the testosterone/aggression link focusing on prenatal testosterone predisposing boys to be rougher than girls, concluded it was very difficult to show any connection between testosterone and aggressive behaviour. Cross-cultural studies of ninety-five societies revealed 47% of them were free of rape while at least thirty-three societies were free of war and interpersonal violence was extremely rare. Based on these studies, it may be evident to suggest that sociological factors and environmental influences appear to have greater credibility in explaining criminal behaviour, whether male or female.[9][3]
Cowie, Cowie and Slater (1968) carried out an extensive study of the inmates of a female approved school. They looked at both social and generic variables and concluded that generic are the main causes of criminality. Furthermore, they proposed that generic factors also dictate the types of criminality might become tied up with. The suggestion seems again to be that girls may tend towards criminality. The proof which they propose is very flimsy and may not stand up to close scrutiny.[10][4]
CONCLUSION
The definition provided in the Section 375 of IPC itself does not stand juxtaposed with the definition that is suitable for the contemporary. In the case of Priya Patel vs State of M.P.[11][5], the definition completely allowed the woman to go away without any punishment for the crime she committed. If this is the case, it stands as gender discrimination on the grounds male being held liable for rape and females for abetment. Women have been subjected to cruelty but it does not mean that there may not be a role reversal. The law present is more towards feminism and provide for woman autonomy. It is time that instead of thinking only on whether the present woman autonomy suffices the purpose, the criminal side of the woman should also be looked into.
(Authors are the students of National Law University, Jodhpur.)
[1] AIR 2006 SC 2639
[2] AIR 2004 SC 3566
[3] Cited from, http://www.keltawebconcepts.com.au/ecrgend1.htm ,
[4] Katherine. S. Mightiams, Textbook on CRIMINOLOGY, Ed. 3, Universal Law Publishing Co, Pvt. Ltd. pg. .494
[5] AIR 2006 SC 2639
Editor’s Pick
Corporate Citizenship
http://www.indlawnews.com/display.aspx?4351
Nivedita Shree
Corporate Business Ethics has an interdisciplinary character. Question of economic policy and business practice intertwine with issues in politics, sociology and organizational theory although business ethics remained anchored in philosophy, even here abstract question in normative and political philosophy mingle with analysis of practical problem and concrete moral dilemmas business is facing challenging times world-wide. Increased competition and commercial pressure are combining with rising regulatory standards and consumer demand to create a whole new playing field for business. Traditional expectations of business are also changing. It is no longer enough to simply employ people, make a profit and pay taxes. Companies are now expected to act responsibly, be accountable and benefit society as a whole. This is the new agenda of corporate social and environmental responsibility (CSER)
Corporate citizenship/Corporate social responsibility is a growing need in todays complex business environment. Prudent corporations have realized their role is not only to make profits for their companies and shareholders, but also to be recognized as socially responsible enterprises.
In recent years the concept of corporate Social responsibility has gained prominence to such an extent that the concept seems ubiquitous in popular media and is gaining increasing attention around the world among business people, media people and academics from a wide range of discipline. There are probably many reasons for attention given to this phenomenon , not least of which is the corporate excesses which continues to become manifest in various parts of the world. These have left an indelible impression among people that all is not well with corporate world and that there are problems which need to be addressed. Such incidents are too common to recount but have left ordinary people to wonder if such a thing as honesty exists any longer in business.
Formalities v. Real scenario: Investment in Real sense
Companies that are breaking the mold are moving beyond corporate social responsibility to social innovation. These companies are the vanguard of the new paradigm. They view community needs as opportunities to develop ideas and demonstrate business technologies, to find and serve new markets, and to solve longstanding business problems. [12][1]
Increased globalization along with increasing the opportunities for business has also brought the businesses under the scrutiny of different audiences, NGOs and media. It is predicted that in the times to come companies will be judged more by their social policies than on their delivery of products and services.
Many theorists have also argued about the economic impact of CSR, some relating it positively with the profit and some feeling that no such relationship exists. It was studied that the market is influenced by the independent CSR activities and also by the totality of these activities and the gains can be in terms of economic performance or social performance. Since CSR and corporate reputation are the two sides of the same coin.
A growing number of companies in many sectors and geographic regions have discovered concrete value and competitive advantage from socially responsible practices in pollution prevention, energy efficiency, environmentally oriented design, supply chain management, and health and sustainable agriculture initiatives, among others. For these firms, CSR has had positive impacts on profits[13][2]
A corporations environmental policy, the way they treat their employees and the way they treat the communities they exist in are all part of their overall behavior and this in turn is the principle factor in determining their public image. As proof of this, even though Wal-Mart makes products that have a decent quality and an extremely low price, they still have a negative public image.
Since public image is largely a result of company behavior, business ethics play a large role in determining public image since they determine behavior. And public image is important to success in most cases, which is one of the reasons as to why business ethics are important to a companys overall success.
Another reason that business ethics are important is the relationship they have to investment. When a person or an entity is considering investment in a particular stock, there are a number of things they take into account. Aside from the quantitative factors surrounding a companys profit margin a future prospects, consideration is also given to a particular company from the point of view of the qualitative aspects such as their public image and the products that they happen to sell. All of these things are taken into account before the final investment is made.
Therefore, a company that would like to encourage extra investment is a company that has a strong sense of business ethics. Part of business ethics is responsibility to the investor and for that reason companies with strong reputations in the field of ethical business behavior are also companies that tend to attract more investment from people that are new into the market. Investment is most definitely important to success.
Consumer and supplier pressure have compelled many companies to adopt formal corporate social responsibility programs, but what started as a pricking of conscience has turned into a financial benefit.
77% of executives said that corporate responsibility programs enhance profitability.[14][3]Fortune 500 companies with a reputation for social responsibility averaged nearly $2.5 million more in revenue annually than companies lacking a reputation for corporate social responsibility. [15][4]
Active companies use it as a differentiator. And companies who dont integrate social responsibility will find themselves at a disadvantage. Companies need to understand who their customers are — consumers or other companies — and that they evaluate companies relative to their corporate responsibility.
Research also shows that as companies invest in social responsibility, they become more successful, creating a cycle of giving and increased profits.
It is stated that corporate social performance is positively correlated with corporate financial performance.[16][5]
Corporate social performance and financial performance are generally positively related across a wide variety of industry and study contexts.
Social responsibility is a trend thats here to stay. Consumers are insisting on it, and businesses are profiting from it.
CSR refers to the corporations obligation to all the stakeholders. It stems from the desire to do well and get self satisfaction in return as well as societal obligation of business. This could be a strategic marketing activity a way for a company to do well by doing good-distinct from sales promotion, corporate philanthropy, corporate sponsorship, corporate Samaritan acts and public relations. Now, it is assumed to be responsibility of the business houses too.
Nothing builds brand loyalty among todays increasingly hard to please consumers, like a companys proven commitment to a worthy cause. Other things being equal many consumers would do business with a company that stands for something beyond profits. In nutshell, CSR and cause related marketing results in increased sales, visibility, and consumer loyalty and enhanced company image along with positive media coverage.
There is a marketing industry term called Generated Impressions, this term refers to companys products and services being constantly visible through media images and slogans. These products images literally appear everywhere, millions of times per minute worldwide. When a company like Coca Cola spends a million dollars to purchase a commercial spot during the Super Bowl, it is not so that individual immediately will run to the store and purchase Coke, it is to make sure that Coca Cola stays on Top of Mind of all its potential customers.
One of the way for companies to internalize stakeholder concern is to increase their credibility and trustworthiness through implicit contracts based on reputation and corporate culture or socialization.
Reputation may be built by consistent behavior over a long period of time and facilitated for honesty is a valuable assets which will be lost if the company is not truthful, which implies an economic incentives to honesty. It is argued that ethical codes may improve economic efficiency when other social institution fails to achieve optimal results, in particular the classic market failures when the firm has access to unique information.
A more stable long term owner provides a better basis for CSR. For example: family owned companies can credibility commit to CSR. In the same way, the preference of some institutional investors for ethical investment provides a base for CSR, if and only if these preferences translates into stable ownership shares and voting behavior at annual general meeting. Companies will respond to stakeholders and media pressure through CSR. Increased CSR may therefore be implemented by greater media coverage and stronger bargaining positions of relevant stakeholder groups-which may be influenced inter alia by public policy.
RISE OF CORPORATE SOCIAL RESPONSIBILITY IN INDIA
The Indian economy has been under the influence of two distinct and diverse forces pertaining to the swadeshi concept i.e. buy Indian goods and integrates with global economy. Both forces have significant economic and political implications in the region.
Liberalization of the Indian economy in the late 1980s and early 1990s also saw the re-establishments of transnational corporation on the Indian horizon. The Indian political and economic climate has been far from stable in the last decade and it has been claimed that Trans national corporations, to influence this unstable political and economic climate in their favor, have used the concept of corporate social responsibility as a bait. It is worth mentioning that though the concept of corporate social responsibility is gaining popularity with the Indian business too, its practice has been subject to varied external and internal influences.
The Indian economy seems to have come full circle in the last seventy-eighty years since the 1920-1930. It started as a highly privatized state in the pre-independence era: under the banner of Swadeshi, the public sector emerged strong in the early post independence decades, yet under duress and debt imbalances, privatization and liberalization, foreign direct investment has been encouraged in the last decade. Thus under international pressure, India, since the 1990s has liberalized its economy in favor of the market. Many multinational and transnational firms have therefore, since set up both marketing and production- orientated operations in India.
Charity is an intrinsic part of the Indian culture and is encouraged as a means of salvation by most religious practiced in India. Charitable giving in the Indian business context is much like the philanthropic donations of the British companies where some causes are supported at random without any strategic planning. Corporate philanthropy is akin to charitable activities which are voluntary in nature. Such activities are not just restricted to monetary donations and do not comprises part of the normal and daily business function.
One type of corporate philanthropy was put into practice under the guise of the industrial welfare by the industrial houses of the 1920s and 1930s. It was believed that industrial welfare could improve the living conditions of the workers more effectively than what was delivered by government agencies, primarily because workers were tied to the factory and could not more effectively utilize facilities that remained under utilized under government provision.
Corporate philanthropy in India started to change in favor of corporate social responsibility with the re-emergence of transnational corporation on the Indian business scenario in the early 1990s. The transnational corporation planning to set up operations in India needed to develop an image, or rather, rather an Indian identity which the Indian customer could associate with. The need could also have been to proactively engage with the media, pressure groups and other stakeholders. This was specifically important in India, as experience had shown, that ignoring any of these stakeholders, was detrimental to the establishment of new bases of transnational corporations since the media etc had been instrumental in establishment of new operations in India.
India has extensive bureaucratic machinery and even after liberalization and dilution of the licence raj, each new industrial setup may require 70-90 clearance from local and state and national governmental authorities. The Swadeshi fervors create a fear among the corporations of being asked to stop functioning. In an unstable political setup and rigid bureaucracy, businesses have to act with caution when dealing with government and political parties. Corporate social responsibility in a situation where dealing with the stakeholders is imperative for survival and the stakeholders is imperative for survival and the stakeholders stance may change overnight under political considerations is thus gaining round in becoming an important corporate strategy for survival.
It is defined as the business corporations partnership with social action groups in providing financial and other resources to support development plans. The emerging perspective on corporate citizenship favors stakeholders. Ethical business is also considered more important emerging trend on the international business scenario. In the ethical business, the essential thrust is on social values and business is conducted in consonance with broader social values keeping in view the stake holders long term interest.
CONCLUSION
CSR is no longer the purview of just a handful of manager concerned with the social or environmental impact of their firms operations and increasingly has become part of overall business strategy.
Together the trends indicated provides the context in which business must operate in future suggests the following imperatives which all corporations will face:
(1) Maintaining a license to operate via transparency and accountability serving society;
(2) Generating more value with less impact;
(3) Preserving the resources base; and
(4) Doing business in a networked world.
In summary, the challenge is to find means of enduring value creation without social or environmental harm.
(Author is student of LLM at HNLU, Raipur)
Editor’s Pick
Indirect tax administration: Best international practices
http://www.indlawnews.com/display.aspx?4348
When one door of happiness closes, another opens; but often we look so long at the closed door that we do not see the one which has been opened for us.[1]
Introduction
Indirect taxes constitute one of the most significant sources of revenue for the Government of India. For efficient revenue collections, a sound administrative system is a prerequisite. While tax policies and tax laws create the potential for raising tax revenues, the actual amount of taxes flowing into the government treasury, to a large extent, depends on the efficiency and effectiveness of the revenue administration. Quality of indirect tax administration is both a key economic indicator and a driver.
The quality of revenue administration influences the investment climate in the country. Foreign firms contemplating investment are not only concerned about the formal tax system, but also with how the system works. A revenue administration that is perceived to be arbitrary or predatory discourages investment. Further, weakness in enforcement capacity of the revenue administration puts lawabiding firms at a competitive disadvantage, as others are allowed to get away with tax evasion.
Weakness in revenue administration leads to inadequate tax collections. Financing of the resulting budget deficit through borrowing or monetary expansion can cause an unsustainable increase in public debt or inflation, respectively. In the alternative, revenue shortfalls shrink the budgetary resource envelope, thus affecting the governments ability to implement its policies and programs and provide public services. Unexpected dips in revenue collections also cause budget cuts that result in major inefficiencies in public expenditure management.
Finally, reform of the revenue administration may be needed to enable it to keep up with the increasing sophistication of business activity and tax evasion schemes. With globalization, goods and services are produced by taxable entities in multiple countries. This presents vast opportunities for manipulating transactions to reduce the tax burden. The existence of tax havens, electronic financial transactions and the increasing use of the Internet in commerce pose major challenges in enforcing tax laws. Even run-of-the-mill domestic taxpayers are increasingly using information technology for running their businesses and for accounting. Without a matching increase in the professional and technological capacity of the revenue administration, its chances of monitoring taxable activity and countering tax evasion are seriously reduced.
It is pertinent to mention that indirect tax administration should be such that it creates a respect for rule of law. This is most important inasmuch as it would not only lead to efficient tax compliance but also transparency in the system.
Tax Design and Tax Administration
Tax design and tax administration are critical means to establishing an efficient revenue gathering mechanism in a country. Most of the countries of the world are striving to put in place an optimal tax administration system. However, there are no standard sets of designs befitting the requirements of all the countries. Jurisdictions differ in respect of their policy and legislative environment and their administrative practices and culture. Each revenue authority faces a varied environment within which it administers its taxation system. As such, a standard approach to tax administration may neither be practical nor desirable in the particular instance. Care should always be taken when considering a countrys practices to fully appreciate the complex factors that have shaped its particular approach.
While different tax and customs administration reform projects in recent years have had country specific variations, most have sought to (i) improve the organization and management of revenue administration; (ii) strengthen the legal and regulatory framework; (iii) broaden the tax base by registering potential taxpayers; (iv) facilitate voluntary compliance; (v) improve capacity to process the massive information flows resulting from declarations filed by taxpayers, payment transactions and administrative actions; (vi) enhance availability of information about taxable transactions and administrative actions; (vii) develop risk-analysis capacity to zero in on cases involving potential violations of tax laws; (viii) strengthen investigation, audit and enforcement capacity; (ix) improve appellate procedures; (x) enhance analytical ability to carry out fiscal studies to assess tax burdens, collection trends, compliance gaps and impact of tax policy changes; and (xi) reduce corruption.
Features of an ideal Indirect Tax Administration
It is in the interest of tax authorities to communicate their vision clearly and honestly to businesses and to have a simple and efficient communication system for tax payers. The majority of countries have an internet site which offers guidance to tax payers on typical issues but again, the quality of the content and the regularity of updates on these sites varies from country to country. The mission statement and taxpayers charter should be clear and focused. There should be transparency and fairness in the tax administration. Further, clear guidance and open communication between authorities and businesses is a key requirement for an ideal tax administration. Automation of processes and procedures are not only essential in view of the rapid advancement of technology but it also ensures quick and smooth compliance. Further, it also leads to reduced discretionary element in decision making of the tax officials. Strategic risk management approach to audit is another key feature of an ideal tax administration. Advanced administrations have found that a well designed audit program is critical to reducing the extent of fraud and evasion. Improvements in audit planning, collection of relevant information, methodology of conducting the audit and training of auditors are the key areas of focus. A few advanced countries have laid down specific guidelines for auditors. Enhancing audit capacity is extremely crucial, as with the increasing sophistication of business transactions, including cross border transactions, it is essential that revenue administration be able to match wits with potential tax evaders.
Organizational Design Models for Indirect Tax Administration
Reforming outdated organizational structures can lead to significant benefits, including more effective and efficient tax administration and improved tax payer compliance. Following are the different kinds of tax models perceived and implemented by various countries:
The type of tax model – The earliest organizational model employed by tax administrators was based principally on type of tax criterion. This entailed the operation of separate multifunctional departments for each tax that was largely self-sufficient and independent of each other.
While this model serves its purpose, it entails numerous shortcomings:
(1) Duplication of functions causes inefficiency;
(2) It is inconvenient for the taxpayers having multiple tax dealings (e.g. businesses), requiring them to deal with different departments on similar issues;
(3) It severely complicates the management of taxpayers compliance, with its
separate audit and debt collection functions;
(4) It increases the likelihood of uneven and inconsistent treatment of taxpayers across taxes;
(5) It impedes the flexible use of staff whose skills were largely confined to one tax; and
(6) It unnecessarily fragments the overall management of tax administration, thus complicating organizational planning and co-ordination.
The functional model – Under the functional model, staff is organized principally by functional groupings (e.g. registration, accounting, information processing, audit, collection, appeals, etc.,) and generally works across taxes.
This approach to organizing tax work was introduced to enable greater standardization of work processes across taxes, to simplify computerization and arrangements for taxpayers, and to generally improve efficiency.
However, this model also is not without its weaknesses-fragmentation by function can lead to poor/inconsistent service while standardization (e.g. a one size fits all approach) may not be appropriate given the myriad of behaviors and varying attitudes to tax compliance to be addressed.
Compared to the tax type model, this model is perceived to offer many advantages and aimed at improving tax administration performance (e.g. providing single points of access for tax inquiries, unified system of taxpayer registration, common tax payment and accounting approaches, and more effective management of tax audit and debt collection functions.)
The taxpayer segment model – A more recent trend among a number of developed countries has been to organize principally around segments of taxpayers (e.g. large businesses, small/medium businesses, wage earners, etc.).
The rationale for organizing around taxpayer segments is that each group of taxpayers has different characteristics and tax compliance behaviors and, as a result, presents different risks to the revenue. In order to manage these risks effectively, the revenue body needs to develop and implement strategies (e.g. law clarification, taxpayer education, improved service, more targeted audits) that are appropriate to the unique characteristics and compliance issues presented by each group of taxpayers.
Grouping key functional activities within a unified and dedicated management structure increases the prospects of improving overall compliance levels. While application of the taxpayer segment model is still in its early stages of use, many countries have partially applied this approach by creating large taxpayer units.
Organizational Model Followed by India for Indirect Tax Administration
India currently follows the Type of tax model of tax administration. This model is followed for each Central indirect tax customs, excise and service tax, and also followed for the State indirect tax, i.e., VAT.
Within the type of tax model, the geographical model is followed. The jurisdiction over the tax matters is geographically distributed to the Commissionerates, Divisions, Ranges and Circles.
Most revenue administrations are moving over to a functional organization structure, as against a structure based on tax types. This involves creating specialized units for taxpayer assistance, processing of tax returns and payments, tax audits, investigation and intelligence, appeals, recovery of tax arrears, financial management, human resource management, fiscal studies etc.
Key Issues in Organizational Design
To sum up, the key issues in organizational design relate to various areas such as technology, costs and benefits analysis, people issues, communication and training. Organization design must keep pace with the ever evolving technological pace. One must of course weigh the pros and cons of organizational design changes.
Communication should be in manner that it makes the potential taxpayers awareness of the general concepts of taxation and why they should pay their taxes. Revenue administration can organize awareness raising campaigns involving TV skits, radio programmes, advertising pamphlets, organising seminars and workshops etc. Last but not the least, the tax officials must be trained in a manner that they can positively contribute to an efficient and ideal tax administration in the country.
Conclusion
Tax is an economic device and with proper usage, it would benefit the country and the people at large. But when it is misused, it would affect all people and make all of them dishonest eventually. This would be the consequence of any ill conceived tax laws; no matter how effective is the tax education in the country. Reforming revenue administration is neither quick nor simple. For revenue administration reform to be successful, critical requirements have to be met, including: a strong political commitment to reform, with clear decisions and the provision of necessary resources; professional and stable leadership; a willingness to abandon old, ineffective practices; and the establishment of a formal reform project with a clear achievable mandate, agreed objectives, and realistic timeframes.
Sustained and well thought out efforts in implementing best practices will modernize Indian indirect tax administration and will facilitate introduction of an All India Goods & Service Tax.
(Author is student of Symbiosis Law School, Pune)
Bibliography
1. The Nuts and Bolts of Revenue Administration Reform By Jit. B. S. Gill, Lead Public sector Management, Specialist Europe and Central Asia Region
2. Background paper prepared for International Tax Dialogue on the VAT, Rome March 15-16, 2005.
[1] HELEN KELLER
Editor’s Pick
Emerging Copyright Issues on the Internet specific to Music Industry – International Perspective
http://www.indlawnews.com/display.aspx?4345
Ishita Shome
Introduction
Post September 11th the war against terrorism and the war against internet piracy of music have become close allies.
To some persons the term piracy may have a slightly romantic connotation conjuring up visions of swashbuckling Caribbean buccaneers; but there is nothing romantic nor swashbuckling about the pirates of intellectual property. They are criminals, usually operating on a large and organized scale, engaged in the theft of the products of other peoples talents, skills and investment.[1] Since this quotation was published, in 1992. The problem of piracy has only grown and has been understood as a worldwide phenomenon often involving the most advanced forms of organized crime. In addition, piracy has in the past decade revealed an entirely new aspect through its emergence and unprecedented growth over the Internet.
The technological advances on the internet now made during the last decade make it extremely easy for pirates to acquire digital copies of songs and albums. Once the pirates have prepared a stolen work of distribution, the material is distributed in minutes to secure computer servers throughout the world. The pirated works are then distributed globally, filtering down to peer to peer and file sharing networks accessible to anyone with net access.[2]
Copyright protection against online music piracy through International Conventions
The substantive provisions of the International Conventions such as WIPO Performance and Phonograms Treaty[3] as well as the TRIPS Agreement[4] aim to counter such widespread piracy over the internet internationally. They aim at protecting authors original works of authorship which includes musical and artistic works and also accord national treatment to all Contracting parties. As given in the Berne Convention[5] as well as the Rome Convention.[6]
The minimum protection which is granted to the performers under the aegis of these Conventions is to provide the possibility of preventing certain acts done without their consent. The restricted acts compromise broadcasting or communication[7] to the public of a live performance, recording an unfixed performance, reproducing a fixation[8] of a performance, provided that the original fixation[9] was made without the consent of the performer and the reproduction is made for purposes not permitted by the Convention or by the performer. As is also provided under the second sentence of TRIPS Agreement 14.1.[10]
Reproduction is the making of one or more copies of a work or of a part of it in any material for, including sound or visual recording.[11] The making of one or more copies in two dimensions of a three- dimensional work, as well as the inclusion of a work or a part of it in computer system( in either the internal storage unit or in an external storage unit of a computer) are also reproduction, (emphasis added).[12]The relevant provisions of the Rome Convention maybe found in Art. 7.1 ( c ) which provide the same.[13] A similar protection is afforded to producers of phonograms by Art. 11 of the WPPT which corresponds with Art, 10 of Rome Convention and Art 14.2 of the TRIPS AgreementThus by giving these performers and phonograms producers such blanket protection from illegal reproduction of their works these Conventions increase the possibility of them benefiting from their performances and productions. These Conventions are instrumental in protecting their artistic heritage and represent an important incentive to their creativity.[14] These Conventions promote particularly in developing countries, guarantee the dissemination of national culture both within the country and throughout the world can additionally constitute a substantial source of revenues for the countries economies and in those cases where its activities extend beyond frontiers can attract an influx of foreign currency.[15]In addition to the right of making available under the digital agenda and the rights of distribution the WPPT provides for the same economic rights of performers as the rights granted in TRIPS agreement 14.1 and 14.2.[16]As far as the distribution right is concerned. Article 8(1) of the WPPT provides that performers have an exclusive right of authorizing of the making available to the public of the original and copies of their performances fixed in phonograms, through sale of other transfer of ownership. Lastly and most importantly the different forms of internet piracy creates a lower income for the performers and the producers of phonograms as it deprives them of the single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to public guaranteed to them by Art. 15 of the WPPT. Thus any form of unauthorised communication to the public by means of the internet of the copyrighted works of the performers directly attacks the benefits reaped by the performers and the producers under the provisions of the aforementioned International conventions.
Measures taken to enforce the protections guaranteed under International Conventions
The Conventions also provide for strengthening of domestic Copyright laws as well as take technogical measures in order to help enforce the provisions of the Conventions.[17] Therefore so far, the public policies have addressed this new form of end user piracy by strengthening existing domestic copyright laws for example the US has strengthened its Copyright laws by bringing about the USA Digital Millennium Copyright Act (DCMA).[18]Along with strengthening of copyright laws has come a series of legal actions aimed at shutting down file sharing technologies. None of those technologies have come under more scrutiny than Napster, an online operator which allowed registered users to exchange indexed music files in a compressed format (MP3) and do so freely and anonymously. Following a law suit filed by Record Industry Association of America (RIAA) Napster was found guilty of Copyright infringement.[19] KaZaA, a Napster successor, holds the new record of most downloaded software with more than 230 million users worldwide (KaZaA, 2003). The Record industry of Australia had taken action in against Sharman, the owners and distributors of Kazaa, a P2P sharing system. Therefore it is evident through these examples that the proliferating music piracy through the internet has become a real threat to the growing music industry and the economic growth of countries dependent on it as it cause catastrophic income losses as well as loss of reputation, honor, and integrity of the author/producer of such phonograms.[20] However the various international conventions are aiming to route out such infringements and protect the rights of the right holders.
(Author is a student of Symbiosis Law College, Pune)
[1] D. de Freitas, Piracy of Intellectual Property and the Measures Need to Counter It, UNESCO Copyright Bulletin, Vol XXVI, part 3 (Paris: 1992), p. 7. (Intergovernmental Copyright Committee, 10th
Session, 1995).
[2] By Lisa N. Takeyama, Et al., Developments in the Economics of Copyright Research and Analysis 37-42,60, (Edward Elgar Publishing, 2005)
[3] adopted at the WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights question in Geneva 1996.
[4] Trade Related Intellectual Property Rights (TRIPS) Agreement entered into on 1st Jan 1995 and presently consisting of 151 members as of 21st July 2007.
[5] Berne Convention for the Protection of Literary and Artistic Works in 1967.
[6] Art 2(1) of Rome Convention Oct 26, 1961.
[7] The first phrase of item (g) under the WPPT defines communication to the public as transmission to the public by any medium other than broadcasting.
[8] Art. 7 of the WPPT
[9] As defined by Art. 2 (c) of WPPT.
[10] TRIPS Agreement (1995) :14. Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations: 1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
[11] Art. 7 of The WPPT.
[12] Document CE/MPC I/2-II, 3.
[13] The protection provided for performers by this Convention shall include the possibility of preventing(c) the reproduction without their consent, of a fixation of their performance:
if the original fixation itself was made without their consent;
If the reproduction is made for purposes different from those for which the performers gave their consent.
If the original fixation was made in accordance with the provisions of Art. 15, and the reproduction is made for the purposes different from those referred to in the provisions.
[14]
[15] World Intellectual Property Organisation ,WIPO Intellectual Property Handbook: Policy Law and Use, 319-325.
[16] TRIPS Agreement (1995) Sec. 14- Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations:
2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
4. The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member”s law. If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.
[17] Art. 18 of The WPPT.
[18] Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998); The DMCA makes it a crime to circumvent anti piracy measures to built into most commercial software (except for research purposes, non-profit libraries.)
[19] A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D.Ca. 2000)
[20] See, Berne Convention, Art. 6bis; WIPO Performances and Phonograms Treaty [1996], Art. 5
‘Heart attack during mishap amounts to accidental death’
http://www.indianexpress.com/news/-Heart-attack-during-mishap-amounts-to-accidental-death-/392944/
Express News Service Posted: Dec 02, 2008 at 0024 hrs IST
New Delhi, December 1: If a man dies of a heart attack in a road mishap, an insurance company is duty bound to pay his family the additional cash benefits as mentioned under the clause “accidental death benefits”, the Delhi Consumer Commission has ruled.
Repudiating the plea of the Life Insurance Corporation (LIC) of India that such a death cannot be termed ‘accidental’, the Commission’s President Justice J D Kapoor ruled that the technical clause in this regard must be interpreted in favour of the consumers and not otherwise, as the same would defeat the purpose of the Consumer Protection Act.
In September 2006, the LIC was directed by the forum to pay an additional sum of Rs 63,000, apart from the regular insurance benefits, to Veena Dhingra, wife of Jagdish Lal.
Lal who had died due to a coronary artery problem after meeting with an accident in January 2004.
The LIC then approached the commission and contended that Lal’s wife was not entitled to the additional benefit as the accident had taken place due to Lal’s own negligence.
The commission, however, noted that for the purpose of awarding compensation, an accident should strictly mean “an unfortunate event, especially one causing physical harm or damage”.
“If any person meets with an accident, including vehicular accident, and if death occurs due to myocardial infraction consequent to a coronary artery disease, precipitated during vehicular accident, it amounts to accidental death. The insured is thus entitled to accident claim benefits,” held Justice Kapoor in a recent decision.
Rejecting the LIC’s appeal against a consumer forum’s order, the commission said that in such cases, because the death is precipitated as a result of the accident, the insurance company cannot be allowed to claim that the death was not due to the mishap and thus deprive the victim’s kin to additional benefits.
EUUN contests Govt’s writ effort
http://www.morungexpress.com/frontpage/euun_contests_govt_s_writ_effort.html
morungexpress December 03, 2008 11:50:00
Dimapur, December 2 (MExN): The government of Nagaland ‘assuring’ to refer the contentious issue of superannuation to the court is taken note of by the Educated Unemployed Union of Nagaland, who says the order of compulsory retirement is not a “punishment” and “implies no stigma. “The government could have reduced or enhanced the retirement age and upper age limit for service entry with out seeking a review of the high court decision. But it has a problem to fix the maximum length of state service based on enhancement of retirement age and sought a review of high court judgment, rather astonishing to get the impression that it is not willing to take decision in the public interest” wondered the union in a note received here. On one hand the state government assured in principle to ‘fix’ the maximum length of service of state government employees, the union explained, but on the other, it is filing a review of the judgment and order passed by the Guwahati High Court after a gap of 16 years. “As the review of the judgment has to be done by the same judge who passed it and must have been retired by now, so, it is simply impossible. The judgment passed by the high court that the government cannot have two criteria for determining the age of superannuation of its employees fixing both the upper age limit and the length of service, was based on the reduction of retirement age from 60 to 57 years of age” the union contented. But now, the union said, the demand for ‘fixing’ the maximum length of state service is based on enhancement of retirement age from 57 to 60 years. “So the two opposite actions are minus and plus years of retirement age” the union observed. The union questioned the stated government if it expects that the high court would pass the same verdict again. “Or will some government servants buy justice with money power? Government does not need to play time pass or double standard game for the reason best known to it, pertaining to superannuation and related matter at the expense of the younger generation” the EUUN said.The union also cited Article 309 of the Indian Constitution of India that the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or a state. “Article 310 states that every person who is member of a civil service of a state or holds any civil post under a state holds office during the pleasure of the governor of a state.The high court or the administrative tribunal cannot issue a mandate to the state government to make rules under the article 309 of the constitution. (Malikarjun Rao vs state of Andhra Pradesh 1990)” it stated. The EUUN said the order of compulsory retirement is not a punishment and implies no stigma or any suggestion of misbehavior. Superannuation: Art 309, 310 can be used “The order has to be passed by the government on forming the opinion that is in the public interest to retire a government servant, compulsorily (The supreme court held in Baikunda Nath Das vs Chief District Medical Officer 1992)”. It means, the EUUN said, the state government as an employer has the authority to legislate on the state service including the length of service and the government servants will serve as long as the state government requires their services and the court cannot override the decision of the state government which is formed in the public interest.“The government must judiciously utilize this power to legislate the maximum length of state service without affecting the existing upper age limit for entry into service and retirement age in the best interest of the 55000 educated unemployed, lakhs of growing students and lakhs of government servants aspiring for promotion” the union added.
HC extends stay on trial of Greyhounds men
http://timesofindia.indiatimes.com/Hyderabad/HC_extends_stay_on_trial_of_Greyhounds_men/articleshow/3785873.cms
3 Dec 2008, 0000 hrs IST, TNN
HYDERABAD: Justice P Swaroop Reddy of the AP High Court on Tuesday extended the stay on the trial that is going on in Paderu magistrate court of Visakhapatnam district against the Greyhounds policemen who were facing charges of alleged gang rape of tribal women. The judge verified the issue whether or not to allow the trial against the Greyhounds policemen who were accused of committing gang rape against tribal women in Paderu agency area of Visakhapatnam on August 20, 2007. Following commencement of trial against them in Paderu magistrate court, the Greyhounds men approached the high court with a plea to quash the proceedings in the trial court. Since the CID, which inquired into this alleged gang rape complaint, gave a clean chit to the police, no fresh trial needed to be conducted against them, they contended.
However, since the magistrate, after examining the CID report, decided to conduct the trial, it should be allowed to complete the trial, K Balagopal, counsel for the tribal women, told the court. There is nothing wrong in allowing the trial, he said. However, senior counsel C Padmanabha Reddy appearing on behalf of the police, said such a move would demoralize the men in uniform. With the stay becoming absolute on Tuesday, the trial court cannot proceed with the case now.
Stay on roadshows hurting us, parties plead with HC
http://timesofindia.indiatimes.com/Hyderabad/Stay_on_roadshows_hurting_us_parties_plead_with_HC/articleshow/3785870.cms
3 Dec 2008, 0324 hrs IST, TNN
HYDERABAD: With their mass contact programmes suspended midway due to a sudden stay on political roadshows, Prajarajyam, TDP and TRS parties on Tuesday urged the AP High Court to complete the hearing in this case in an expeditious way and vacate the stay as their `democratic rights are getting affected due to the stay.’
The court had stayed all roadshows a week ago following a petition against such shows and directed all the political parties, the DGP, the chief secretary and the home secretary to file their replies detailing the steps taken to minimise public inconvenience during such shows. The fact that the PRP, TDP and TRS filed their replies immediately after the stay shows the urgency of the case. Other respondents like the left parties, the Congress and the government authorities are yet to file their replies. Though the matter was listed to be heard in the afternoon session of the chief justice court on Tuesday, the time of the court was over even before it could come up. When the bench comprising Chief Justice Anil Ramesh Dave and Justice R Subhash Reddy stood up to call it a day, a posse of lawyers representing the three parties came forward and urged the bench to hear this case early saying that the stay was hurting their programmes severely. The bench assured them that it would hear the matter on Wednesday.
HC says Judicial Service exam questions out of syllabus, lowers cut-off
http://www.expressindia.com/latest-news/hc-says-judicial-service-exam-questions-out-of-syllabus-lowers-cutoff/393498/
Express News Service
Posted: Dec 03, 2008 at 0053 hrs IST
New Delhi The Delhi High Court has said 26 questions asked in the Delhi Judicial Preliminary Examination this year be withdrawn for being out of the specified syllabus. The HC also fixed afresh, the qualifying marks for the test.
In its order, the court said that a second list of successful candidates in the screening test of the Delhi Judicial Service (DJS) preliminary exam would be declared. The HC further held that the written test scheduled to be held on December 21 and 22 this year will not be disturbed and that the maximum marks in the screening test will stand reduced from 200 to 171, 60 percent of which would be the minimum pass marks for candidates.
Out of the 4801 candidates appearing for the preliminary exam this year, only 107 could qualify for the written test to be eligible for the 86 vacant posts in the DJS.
Domestic violence cases: HC safety net for harried protection officers
http://www.expressindia.com/latest-news/domestic-violence-cases-hc-safety-net-for-harried-protection-officers/393482/
Utkarsh Anand
Posted: Dec 03, 2008 at 0047 hrs IST
New Delhi Protection officers can heave a sigh of relief. Often at the receiving end on the job, and in need of protection themselves, protection officers have now been assured of police protection by the High Court.
After receiving a string of complaints by women officers entrusted with the task of assisting the victims of domestic violence, the Delhi High court has come to their rescue and passed an important instruction to the lower courts on ensuring their security in the line of duty.
From now, officers appointed by the Social Welfare Department for assisting the courts dealing with complaints of domestic violence, can seek police protection as a matter of right as they go out to serve notices to the accused.
“Every notice shall contain a clear direction that in case the protection officer opts to personally serve the notice on the respondent but seeks protection of the police, the officer-in-charge of the police station concerned shall provide the officer with adequate security,” reads the circular issued by the registrar of the High Court.
Newsline had for the first time on September 14 reported about the incidents of violence against officers, who had since been urging various courts to provide them proper security as they go out to comply with the directives of judicial officers.
The report also highlighted the concerns of women officers and their reluctance to perform their functions owing to threats.
The circular also lays down new rules on how notices are to be served to the accused under the provisions of the Protection of Women from Domestic Violence Act.
Protection officers will no longer be the only officials responsible for serving notices and copies can be handed over to the process serving agency of the Delhi Police or the district nazarat if the officers wish.
Officers given the responsibility of serving the notices would subsequently return the notices to the protection officers with a clear service report, following which the latter would authenticate the report and submit it to the respective courts. This way, not only the burden of service of the notices would be shared by the officials of various departments but the protection officers will also have a choice not to go to places they feel might be dangerous.
The circular has asked all the metropolitan magistrates dealing with cases of domestic violence to bring the directions into practice under intimation to the High Court.
Unenviable taskKiran, a protection officer in North-west district, had in September expressed her apprehensions to a Rohini court magistrate when asked as to why she had not complied with his order. She told the magistrate it was unsafe for her to go to the house of the accused as per the order, unless government authorities made arrangements for her safety. Making the submissions, she referred to a recent incident, in which protection officer Parmesh Tokas was assaulted by five women, when she went to a house in Kishangarh to serve court summons. At that time the magistrate had told her he could not lay down rules on the issue and could only ask the Station House Officer concerned to assist her.
HC seeks Piro MLA’s case records
http://timesofindia.indiatimes.com/Cities/Patna/HC_seeks_Piro_MLAs_case_records/articleshow/3785338.cms
3 Dec 2008, 0225 hrs IST, TNN
PATNA: The Patna High Court on Tuesday called for records of criminal proceedings against the suspended JD(U) MLA from Piro, Sunil Pandey, from lower courts in Rohtas district. The move follows filing of two criminal revision petitions by the MLA, challenging orders of the lower courts. A single bench presided over by Justice Ghanshyam Prasad called for the case records and issued a notice to informants about the matter raised by Pandey in his petitions. The first case relates to filing of an FIR against Pandey at Dehri police station alleging that he had entered the police station on May 27, 2003, carrying a double barrel gun and misbehaved with policemen on duty. The second case, filed by informant Ramchandra Ram with Dehri Dasihar police station, is related to a land dispute.
HC irked over reports of fresh illegal constructions
http://timesofindia.indiatimes.com/Delhi/HC_irked_over_reports_of_fresh_illegal_constructions/articleshow/3785578.cms
2 Dec 2008, 2315 hrs IST, Abhinav Garg, TNN
NEW DELHI: Concerned at reports that fresh illegal constructions have mushroomed in the Capital since it disbanded the monitoring commitee on demolitions, Delhi HC has sought an explanation from MCD. A division Bench comprising Justice’s Mukul Mudgal and Manmohan on Tuesday asked the civic agency to file its reply to these allegations by the way of an affidavit. The accusation that MCD has allowed illegal constructions to crop up, especially in areas like Dwarka and Karol Bagh has been made by NGO Kalyan Sanstha Welfare Organisation, on whose PIL the entire demolition hearings began in HC. HC’s poser to MCD comes when it has been three months since the court wrapped up its monitoring mechanism at the instance of MCD which had at that time assured the judges that it would put in place its independent monitoring body whose task would be to check illegal construction. However, the NGO alleged that ever since HC removed its court commisioners, builders, in cahoots with local politicians were having a field day erecting unauthorized buildings even as MCD looks the other way. “Massive unauthorized construction was going in Mahavir Enclave near Dwarka and Karol Bagh zone and the MCD remained a mute spectator,” the NGO claims pointing out that there was “connivance between the MCD officials, builders, politicians and bureaucrats.” The petition further states that “on the one hand MCD officials are giving an undertaking that there is an internal transperancy and no unauthorized construction will now come up and at the same time no steps are being taken against such illegalities.” In Sepetember this year, though HC disbanded its monitoring panel, it had warned that it will wait and watch for six months how MCD fares in its independent monitoring of construction activity in Delhi and in case it fails to put its act together, the demolition squad with court commisioners will again be at work. On its part the agency denied all the allegations and argued that builders whose properties have been sealed infact have challenged the decision before MCD’s Appelate Tribunal which is flooded with such petitions – an indicator of how serious the agency is when it comes to razing down illegal constructions.
HC orders review of Roche’s drug patent
http://www.business-standard.com/india/news/hc-orders-reviewroches-drug-patent/00/06/342084/
Joe C Mathew & P B Jayakumar / New Delhi/mumbai December 3, 2008, 0:48 IST
First time, an Indian court revisits a patent office order.
In a ruling that can have far-reaching implications on the way medicine patents are granted in the country, the Madras High Court today called for re-examination of a patent granted to Swiss drug maker F Hoffman-La Roche’s valgancyclovir, marketed under the brand name Valcyte in India.
This is the first time an Indian court is reviewing the decision of the patent office. Valgancyclovir is a critical drug needed for patients suffering with life threatening illnesses such as AIDS to prevent them from infections.
“As per my information, the court wants the patent granted on Valgancyclovir to be re-examined before January 31, 2009. We will abide by the rules of the country,” Girish Telang, managing director of Roche Scientific India, the Indian unit of F Hoffman-La Roche said.
The court’s decision is in response to a petition filed by the Indian Network of Positive People and the Tamil Nadu Network of People with HIV/AIDS against the Chennai patent office’ decision to grant patent for Valgancyclovir without hearing their pre-grant opposition.
Indian laws permit pre-grant opposition against a patent application. It also allows post-grant opposition within one year of patent grant. There are multiple post-grant oppositions pending before the patent office on the particular drug, sources said.
Lawyer’s Collective, the Mumbai-based non-governmental organisation that represented the case on behalf of the patient groups, said they are yet to get details of the judgment.
The patent was granted for Roche in June 2007, without hearing the opposition filed by the groups alleging that the drug lacks novelty and hence non-patentable. The patient groups has maintained that the drug was first patented in the US in 1994 and as Indian laws provide product patent protection only to those drugs that are patented after 1995, and hence, cannot be considered patentable.
“Valgancyclovir is an important drug for HIV/AIDS patients and a product patent allows monopolistic situation in India, where the drug is sold at very high price. We are happy about the court decision,” said Loon Gangte, president of Delhi Network of Positive People (DNP).
Earlier, Girish Telang had told Business Standard that Roche was selling many of its essential HIV/AIDS and cancer drugs in India at much subsidised prices to help the Indian patients access the drugs.
Meanwhile, industry observers said the Madras High Court decision could impact another case being heard by the Bombay High Court between Roche and Indian generic drug maker Cipla on the same drug.
Roche had filed patent infringement case against Cipla seeking an order to stop the generic drug maker from selling its version of Valcyte, which was launched in January, this year.
Meanwhile, industry observers said the Madras HC decision could impact another case being heard by the Bombay HC between Roche and India’s Cipla on the same drug.
Roche had filed patent infringement case against Cipla seeking an order to stop the generic drug maker from selling its version of Valcyte, which was launched in January, this year.
Katara murder: HC notice to UP, Delhi
http://timesofindia.indiatimes.com/Cities/Katara_appeal_HC_notice_to_UP_Delhi/articleshow/3785100.cms
2 Dec 2008, 1846 hrs IST, PTI
NEW DELHI: The Delhi High Court on Tuesday issued notice to the governments of NCT and Uttar Pradesh on the appeal filed by Vikas Yadav and his cousin Vishal against their conviction in the Nitish Katara murder case. In June this year Vikas, son of Uttar Pradesh politician D P Yadav, and Vishal were awarded life sentences for killing Katara, son of an IAS officer and a MBA graduate. The two convicts had killed Katara as they were against their sister Bharti’s alleged relation with him. A Division Bench of Justice Anil Kumar and Justice V K Shalli sought both Delhi as well as UP governments’ response by January 27 next year. Earlier, the counsel for Yadavs had opposed strongly the Delhi government being made a necessary party on the appeals filed by the convicts, saying that the incident happened in Ghaziabad, UP and the public prosecutor was appointed by the UP government during the trial of the case. The Bench, however, rejected his submission and issued notice to the city government. Filing the appeal, Yadav brothers contended that the trial court had wrongly held them guilty for the murder of Katara, despite the fact that there was no direct evidence against them. Alleging that the trial judge had ignored certain facts in the case, they said the court relied on the deposition of Ajay Katara, who was an interested witness in case. They also stated that the crime-related articles including the wrist watch and the recovered murder weapon, were planted by the prosecution. Yadav brothers had kidnapped Katara on the night of February 16, 2002 from a marriage party in Ghaziabad and later killed him.
HC orders formation of civil vacation courts in dists
http://www.thefinancialexpress-bd.com/search_index.php?page=detail_news&news_id=18990
When the judges of the civil courts at district-level enjoy a month-long annual vacation from December 1, the High Court (HC) Sunday ordered the government to constitute civil vacation courts in each district for disposing of urgent cases. The HC judgment directed the Law Secretary to take step towards constitution of civil vacation bench in each district with the joint district judge who would dispose of urgent civil matters during vacation. A HC division bench, comprising Justice ABM Khairul Huq and Justice Abdul Awal, delivered the judgment following a public-interest litigation writ petition. — UNB
Plagued by huge vacancy, judiciary grappling with pendency
http://timesofindia.indiatimes.com/India/Plagued_by_huge_vacancy_judiciary_grappling_with_pendency/articleshow/3785419.cms
3 Dec 2008, 0001 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: The executive may always blame the judiciary for delay in disposal of cases and the resultant huge pendency, but latest figures released by the Supreme Court on Tuesday tell a different story — the state governments are not filling vacancies in trial courts. The `all hands on deck’ call by the Chief Justice of India to tackle the monstrous pendency of nearly 3 crore cases in the high courts and trial courts is not yielding the expected result despite best efforts from judges as the judiciary is grappling with large vacancies in the HCs and the lower judiciary. The vacancies in trial courts have remained the same in the last one year. If it was 3,233 at the end of last year, at present it is 3,239. The sanctioned strength of judges in the lower judiciary being 16,158, the vacancy percentage works out to 20. The blame should also be shared by the Chief Justice of India and the Collegium headed by him as the high courts, for which they are the sole recommending authority on appointment of judges, are also reeling under a huge vacancy, a little over 30%. The HCs, having a pendency of 38 lakh cases, are functioning with 620 judges as against a sanctioned strength of 886. The biggest high court in the country — Allahabad HC — accounts for the most number of vacancies in a single HC. Against the sanctioned 160 posts of judges, there are only 76 judges — over 50% vacancy. The Punjab and Haryana HC has 21 judges posts vacant, Andhra Pradesh HC 19, Calcutta HC 18, Patna HC 16, Madras HC 15, Bombay HC 13 and 12 each in the HCs of Chhattisgarh, Gujarat and Kerala. And the situation in the trial courts follow an identical pattern, with Uttar Pradesh accounting for the most number of pending cases and the highest vacancy in trial court judges. While the number of cases pending has touched 50 lakh, the number of vacancies for judges is 540.
High Court pulls up DTC for not rewarding its staff for bravery
http://www.hindu.com/thehindu/holnus/002200812031730.htm
New Delhi (PTI): The Delhi High Court has expressed its displeasure at the Delhi Transport Corporation, which had not properly rewarded a bus conductor who sustained a bullet injury while protecting passengers from robbers.
“Had he been employed in some private company, he would have got better facilities for his courage,” a bench comprising Chief Justice A P Shah and Justice S Muralidhar said.
The court asked the Corporation to consider the plea of Budh Prakash, the bus conductor, who sought a promotion like other conductors were given in past.
The bench would take up the matter for further hearing on Monday.
In this case Prakash sustained a bullet injury while protecting passengers of his bus from robbers who tried to loot the vehicle on way to Dehradun in 1998.
“In spite of his courage being appreciated by the Additional Superintendent of Police, who recommended his promotion, the corporation refused to award him properly and just added an increment of Rs 200 in his basic salary,” Advocate Ravindra S Garia, appearing for the DTC employee contended.
He pleaded that the DTC policy had discriminated against him as earlier in such cases employees had been promoted.
The Court after hearing his contention asked the DTC’s counsel to take instruction from its Chairman and report back on Monday.
PIL challenging appointment of new DGP dismissed
http://keralaonline.com/news/pil-challenging-appointment-dgp-dismissed_11488.html
Kochi, Wednesday 3 December 2008: Kerala High court yesterday dismissed in limine the PIL challenging the appointment of Jacob Punnose as DGP.
Dismissing the petition even without issuing notice to the respondent, a Division Bench, comprising Chief Justice H L Dattu and Justice A K Basheer, held that the remarks of the court in an earlier judgement does not come in any way of the cabinet taking a decision appointing Punnose as DGP. According to the petitioner, the High Court had on July 15 this year made some adverse observations against Punnose in a case. There was ‘deficiency in his integrity’, the petitioner alleged.
A sitting MLA, P T Thomas, had also given a representation against the appointment, it was stated. The petitioner had sought a direction that Punnose was incompetent to be a repository of trust required of a DGP and also sought issuance of a quo warranto writ against him.
No more complaint boxes for Tihar Jail inmates
http://www.hindu.com/thehindu/holnus/002200812031551.htm
New Delhi (PTI): Complaint boxes put up inside Tihar jail to facilitate inmates to drop petitions and complaints to be taken up by the National Human Rights Commission (NHRC) will now be removed.
The move comes after the Delhi High Court made a direction to this effect following a submission from the NHRC that as the courts operating inside the jail premises were already taking up prisoner’s problems, there was no need for such suggestion boxes.
Incidentally, the complaint boxes were put up at various cells in the Asia’s largest prison at the suggestion of NHRC itself in November last year.
Since then, the jail authorities have put up around 300 suggestion boxes in various cells in the jail complex lodging over 12,000 inmates who, Tihar officials said, were dropping their complaints and suggestions too.
In November last year, the NHRC had moved the High Court alleging that the inmates were unable to approach the courts and other authorities and hence suggestions boxes would ensure better human rights inside the jails.
The Commission had sought direction to Tihar jail authorities to place the boxes as it alleged that there were large scale human rights violations behind the bars and it would collect the complaints and petitions for appropriate action.
The submission had came in the wake of a spate of deaths reported from Tihar jail last year raising questions on the living condition of inmates in the “overcrowded” prisons.
Sadhvi Pragya: Truth will prevail
http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=266&page=9
By Sandhya Jain
While we are gratified that our small initiative has borne fruit, it is painful for a woman writer to confess that the National Commission for Women was less than helpful in the matter of Sadhvi Pragya’s illegal detention, ill-treatment, and absence of women constables during an interrogation period that spanned 23-24 days!
The Maharashtra Anti Terrorism Squad (ATS) must be ruing the day it agreed to persecute Sadhvi Pragya, Lt. Col. Srikant Purohit and others on grounds of “Hindu terror.” That the case was patently cooked up became visible from the moment the initial shock and surprise wore off, and with every passing day, as repeated police remands, narco-analysis, brain-mapping and lie detector tests failed to yield any half-credible evidence, the ATS found itself painted into a corner. Its covert political puppeteers withdrew further into the shadows, and as ATS invoked the Maharashtra Control of Organised Crime Act (MCOCA) against the accused on 20 November 2008, things began to go rapidly downhill. On Friday, 21 November 2008, a group of Delhi intellectuals led by the redoubtable KPS Gill, the nation’s most gallant and successful police officer, presented a memorandum against the ill-treatment meted out to Sadhvi Pragya on the basis of her sworn affidavit in court. Member, Mr. Justice G.P. Mathur, who met the delegation assured appropriate and speedy action in accordance with Commission procedures. On Tuesday, 25 November 2008, the National Human Rights Commission issued notice to the Maharashtra Government regarding allegations of custodial torture of Sadhvi Pragya. A day prior to this, the MCOCA special court dealt it a near lethal blow by denying ATS any further remand of Sadhvi Pragya, Lt. Col. Shrikant Prasad Purohit and Ajay Rahirkar. Instead, Special Judge Y.D. Shinde remanded all three, along with four others (Shivnarayan Gopalsingh Kalsangra, Maj (retd) Ramesh Updhayaya, Jagdish Chintaman Mhatre and Shyam Bhawarlal Sahu) to judicial custody till 3 December 2008. In her sworn affidavit presented in the Nashik court on 17 November 2008, Sadhvi Pragya had alleged that 1] she was illegally detained for 10 days and shifted from one place to another; 2] she was physically assaulted and mentally tortured in custody; 3] she was robbed of her dignity by the ATS which questioned her chastity’ 4] no female police constables were present during her interrogation and transfer from one place to another and 5] she was denied the right to contact her family and her lawyer. So immense was her trauma that she even contemplated committing suicide. She was subjected to narco-analysis and brain-mapping tests without her consent; these methods of interrogation are used to make accused persons incriminate themselves, and they were continued even though they repeatedly failed to achieve this objective. The affidavit was so damning that the NHRC – that should have taken suo motu notice of the case the same day – could not sit silent once matters were presented before it in black and white. The absence of female constables from Sadhvi Pragya’s detention ordeal remains un-denied to this day, though we have been subjected to new dramas in the form of death threats to the Mumbai ATS. Give me a break! In the MCOCA special court, Sadhvi Pragya made even more shameful revelations: “My interrogators (ATS officials) threatened to strip me and hang me upside down if I did not confess to my involvement in the Malegaon blasts… They also made me to listen to an obscene audio tape (involving another accused Ramesh Upadhyay)… I was so disturbed that I was in no mood to eat food for a couple of days.” To the ATS’ further chagrin, Lt. Col. Purohit said investigating officials had threatened to plant RDX at his home so it would be easy for them to finish him in an encounter. “In their bid to extract confession from me, the ATS officials hung upside down from a rod with my hands tied to two poles. After they did all this to me, I lost sensation in my wrists and fingers,” he said. Ramesh Updhayaya alleged that he was directly threatened by State Director General of Police A.N. Roy on 26 October 2008. He said he was tortured by Additional Commissioner of Police (ATS) Parambir Singh and Sukhwinder Singh: “Parambir and Sukhwinder physically abused me and then threatened to parade my wife and daughter naked in the police station and get them raped by all the officers here.” These allegations are too shameful to be commented upon. Mercifully, the NHRC has taken cognizance of matters and asked the Maharashtra Chief Secretary Johny Joseph and Director General of Police A.N. Roy to submit a factual report on the situation within two weeks. While we are gratified that our small initiative has borne fruit, it is painful for a woman writer to confess that the National Commission for Women was less than helpful in the matter of Sadhvi Pragya’s illegal detention, ill-treatment, and absence of women constables during an interrogation period that spanned 23-24 days! I am ashamed to admit that some concerned citizens rang up Chairperson Girija Vyas for an appointment, only to learn that she was on leave the entire week, and was probably helping the election campaign of a political party (though naturally the office would not put this on record). We then sent email petitions, and petitions by courier, to Members and Chairperson. Then, on 21 November 2008, riding piggy back with the visit to the NHRC, we took a signed petition to the National Commission for Women, personally interacted with a Member who was present, and got our petition received in the complaint cell. Since it is inconceivable that the Commission would not have informed Ms. Vyas about the petitions and our visit, it was truly shocking to find her stating on television on Monday evening (while surfing channels) that she had received no complaints regarding Sadhvi Pragya! Within the country, the impression is fast gaining ground that the entire sequence of arrests and alleged Hindu terror theory was a gigantic conspiracy to weaken the institutions of the state which were joining hands and combating terror fairly competently. The votebank aspect of such a conspiracy is too obvious to need stating. What remains to be done is a thorough probe into the entire investigation to unveil the conspirators and their devious game-plan.
Mental hospitals are very much like hell
http://brpbhaskar.blogspot.com/2008/12/mental-hospitals-are-very-much-like-hel.html
By V. SASI KUMAR and SUNDAR RAMANATHAIYERCountercurrents.org02 December, 2008
In the mid nineteen eighties, one of us (Sundar) wrote about what he saw in the Trivandrum Mental Hospital thus: “Total of 200 women. …. They have to piss and shit into a small pit … There are no toilets in the cell. ….. The stench is unbearable. ……. ’You should have come before 10 a.m. You wouldn’t have been able to stand anywhere. Shit puddles everywhere. They pour a bucket of water over it. Then it has an unbearable stench’, says a patient.” (Ee Bhraanthaalayathinu Naavundaayirunnenkil, in Malayalam, Mathrubhumi Publications, Kozhikode, 2007)This was more than two decades ago. Things did change in the Trivandrum Mental Hospital. Strangely, the exposure about one hospital did not lead to an examination of the conditions in other hospitals in the country. In the late 1990s Anjana Mishra wrote:, “As one approaches the wards, a strange stench hits the nostrils. The sight is even more horrifying and nauseating. To the wooden railings of the long verandah are tied —- actually tied with ropes —- the patients diagnosed as violent, sitting on their own human waste. On either side of the verandah are located the two toilets —- unusable and ?lthy. The toilets have absolutely no water, either running or stored.” (Manushi, no. 120). This was about the Central Institute of Psychiatry, Ranchi.Study by NHRCThe conditions of mental hospitals in India, in general, are very poor. They are generally understaffed, lack sufficient facilities and trained manpower, and often have insufficient space to handle the large number of patients. There are something like 37 mental hospitals in the public sector in the country, with a total of around 30,000 beds. And they have to serve an estimated one crore odd people with severe mental illness. And several times that number who do not need hospitalisation. As per an estimate, around 12% of all patients in India are mental patients, yet only about 1% of the health budget is allocated for mental health. There are only 3,000 psychiatrists in India as against a demand for over 32,000.Quality Assurance in Mental Health (1999), a report by the National Human Rights Commission, evaluates mental hospitals in India as follows: “The findings reveal that there are predominantly two types of hospitals. The first type does not deserve to be called hospitals or mental health centres. They are dumping grounds for families to abandon their mentally ill member, …. The living conditions in many of these settings are deplorable and violate an individual’s right to be treated humanely and live a life of dignity. Despite all advances in treatment, the mentally ill in these hospitals are forced to live a life of incarceration.”“The second type of hospitals, are those that provide basic living amenities. Their role is predominantly custodial and they provide adequate food and shelter. Medical treatment is used to keep patients manageable and very little effort is made to preserve or enhance their daily living skills. These hospitals are violating the rights of the mentally ill persons to appropriate treatment and rehabilitation and a right to community and family life” As the NHRC itself admits, both types of hospitals violate basic human rights.Few dispute that mental hospitals have long since been dehumanized through neglect, and had failed to meet patients needs” wrote Philip Bean and Patricia Mounser (Discharged from Mental Hospitals, Macmillan, 1993) Though written in a somewhat different context, this is valid even today in our country. Patients are abused, bullied, molested, harassed and physically assaulted and their rights, ignored.Patients or CriminalsMental patients are often locked up, chained and sometimes even beaten. They are treated like criminals. This is about hospitals in the public sector. We often cannot even enter private hospitals. But the most heart-wrenching scenes came from a private hospital in Tamil Nadu, when the building caught fire.“The chain is blackened and the ring is horribly twisted but still fastened to the charred stump—of a leg. Mentally challenged and physically shackled he was, yet Murugaraj had desperately tried to free himself. Twenty seven more mentally ill people died with him in the early hours of August 2001, when a fire engulfed the thatched roof of the Moideen Badhusha Mental Home at Erwadi, … in southern Tamil Nadu …. They were stripped of dignity when they lived—chained, confined and ill treated. The manner of their death was even worse.” (Asha Krishnakumar, Frontline, Aug. 18-31,2001).“Shocking!” is the least one can say. Of course, this prompted thegovernment to act. But such a tragedy was waiting to happen the moment people were chained. Years later, the situation in many mental hospitals remains similar. A report in 2007 says, “violation of human rights is committed in hospitals where basic amenities and services are not provided, inhuman and degrading treatment is very common and patients are subjected to ill treatment and abuse.” (http://www.bpaindia.org/Enewsletterfinal %20Report%20April%20-% 20June%2007.pdf). Even the report of NHRC says, “The attenders use long lathis to control the patients who often get beaten up.” According to the report, many hospitals do not even have nurses, and some do not even have vacancies for nurses.There is obviously a severe shortage of funds. When female patients in a hospital in Kolkata were found naked (see http://www.telegraphindia.com/1080314/jsp/opinion/ story 9016006.jsp), the reason given was that the washerman comes only once in a fortnight, and the patients have only three sets of dresses per head. The questions to be asked are i) How come the washerman does not come more frequently? and ii) Why don’t patients have more dresses? The possible answer, in each case, is lack of funds.The food given to the patients leaves much to be desired, both in terms of quality and in the manner in which it is served. For instance, Anjana Mishra wrote, “The dining hall, …, constitutes the most unhygienic part of the entire establishment. …. Almost a dozen dogs loiter around. The afternoon meal consists of coarse, half-cooked rice, watery dal and a tasteless, odourless curry. … Again, privileged patients, like myself, were entitled to a piece of fried fish, a little curd and a pappad. All the patients eat in a child-like fashion, hogging a mouthful and then taking a walk, then coming back for a second mouthful. The dogs happily lick the plates in this interval. … Some of the very ill patients even put their food on the floor and have it along with the dogs, while the ayahs in charge exchange gossip.” (Manushi, no. 120)ShameElectro Cunvulsive Therapy (ECT) is regularly used, often as a punishment too. ECT has been discontinued in most parts of the world because of various reasons. Even in India, the Mental Health Act says that only modified ECT, where drugs to suppress fit-like effects of the electric shock, should be used. And even this is supposed to be done under anesthesia. But many, if not most, hospitals do not have anesthetists. Often, neither the hospital personnel nor the patients have any idea about the rights of the patients.In short, mental hospitals in India are very much like hell. No one seems to be bothered about what happens there. People, even journalists, are not allowed to visit the wards. Very little news comes out of their prison-like campuses. Once in a while we even hear reports of rape and sodomy. Becoming a mental patient is often worse than death. Remember the case of Machal Lalung who was put in a mental hospital in 1951 and forgotten. He was released in 2005 only through the intervention of the Human Rights Commission. Society does not often want its mental patients back. Once a mental patient, it is as though (s)he is deleted from the hard disk of life, and even from the memory of their near and dear ones. Shame on us! ————This article is published under the Creative commons Attribution Share Alike licence 2.5.The article may be reproduced in any media in its original or modified form provided this note is also included. Details of the licence can be found athttp://creativecommons.org/licenses/by-sa/2.5/in/
Posted by B.R.P.Bhaskar at 2:21 PM
Labels: Mental Hospitals
NHRC expresses anguish over Mumbai terror strikes
http://www.newkerala.com/topstory-fullnews-52502.html
New Delhi, Nov.27 : The National Human Rights Commission (NHRC) today expressed its deep sense of pain and anguish at the tragic events which have taken place in Mumbai.
NHRC Chairperson Mr. Justice S. Rajendra Babu said: “Terrorism is a mad violator of human Rights. A terrorist has no religion. He does not believe in the tenets of religion because no religion preaches such insane violence. Therefore, terrorism of whatever hue must be unequivocally condemned by all.” NHRC appeals to all communities and sections of society to join in the fight against terrorism without any reservation.
— ANI
Filed under: Daily Legal news | Tagged: http://www.advocatekamalkumarpandey.blogspot.com/ |
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Certainly there has to be a code of conduct for the media while reporting the matters of National security and interest . Further more an authority should be there to supervise whether the code of conduct is followed or not and in case of violation of the same strict and effective action should be taken. Media can not be allowed to exercise its freedom of reporting at the cost of national security.