PAINTING NATION SAFFRON: SHOULD INDIA BE RENAMED AS BHARAT?

Daksh Saroha and Lavanya Chawla, both 4th year students of Amity Law School, Delhi assays their views on the petition filed in the Supreme Court to rename ‘INDIA’ as ‘BHARAT’

The Bench of Chief Justice of India SA Bobde with Justice AS Bopanna and Justice Hrishikesh Roy on 3rd June 2020 rejected a petition to rename ‘the symbol of slavery’ India as Bharat or Hindustan. The sentiment of Delhi based petitioner is not something new, and has been brought up numerous times in the past by the likes of RSS Chief Mohan Bhagwat who in 2013 stated that “Rapes happen in India, not Bharat” and the incumbent Chief Minister of Uttar Pradesh, Yogi Adityanath in 2014 moving a similar Constitution Amendment Bill in 2014 to substitute the word “India” with “Hindustan” throughout the Constitution and amend Article 1 as, “Bharat, that is Hindustan, shall be a Union of States.” A pertinent question arises as to how the matter was entertained in the first place when the Supreme Court is restricting itself to “urgent matters” only amid an ongoing global pandemic. 

William Shakespeare in his play Romeo and Juliet expressed his views on symbolism with the famous lines: “What’s in a name … That which we call a rose. By any other name would smell as sweet.” But it is not just the unmerited nature of designation that is the subject matter of the issue at hand, it is also the underlying intention behind the petition. 

The origin and validity of various names given to this country have been widely discussed by various historians and authors. The name “India”, originally derived from the Indus or Sindhu river, was used in Persian and Greek since ancient Greek geographer Herodotus in the 5th century BC. The name “Hindush” which later became “Hindustan”, was attributed to Persian origin.[1] Jawahar Lal Nehru, in his book Discovery of India, says, “In the Mahabharata a very definite attempt has been made to emphasize the fundamental unity of India, or Bharatvarsha as it was called, from Bharat, the legendary founder of the race.” Bharat is thereon felt native, while India felt foreign. 

But it is argued through 9th-century Hindu philosopher Vacaspati Misra’s commentary that “Bhārata then refers to a spatially delimited social order, but not to a politically organized entity.” The social order of the Varna system is the antithesis of constitutional values of equality and existed as a mechanism of class oppression. In this sense, Bharat differed from the organically developed political regime that was Hindustan or India. Bharat Ratna winning historian Pandurang Vaman Kane on this matter states that “The Viṣṇu (II, 3, 2), Brāhma, Mārkaṇḍeya (55, 21-22) and other purāṇas proudly assert that Bharatavarṣa is the land of action (karmabhūmi). This is a patriotism of a sort but not of the kind we see in western countries. Bharatavarṣa itself has comprised numerous countries from the most ancient times. There was no doubt great emotional regard for Bharatavarṣa or Ᾱryāvarta as a unity for many centuries among all writers from a religious point of view, though not from a political standpoint. Therefore, one element of modern nationhood viz. being under the same government was wanting.”[2]

This country maturing through its cultural and eventual political stages, is described by Bipin Chandra Pal in his book The Soul of India. The idea of political sovereignty and administrative centralization, he says, were not in the genius of the Aryan people. He states that “the unity of India was neither racial nor religious, nor political nor administrative. It was a peculiar type of unity, which may be best described as cultural. The Moslem rulers of India came into these invaluable inheritances of the Hindus. To the old community of socio-religious life and ideals, the Mahomedans now added new elements of administrative and political unity, all irrespective of castes or community, became equally subject to certain laws and obligations, known only to Islam. Thus, we had, under the Moguls, a new and more united, a more organic, though not yet fully organized, national life and consciousness than we had before. Political unity was achieved and added to the existing cultural unity of Bharat allowing Indians to develop a complete sense of belonging together irrespective of religion and other considerations.”[3] 

This secular solidarity was evident through the words of Mohammad Iqbal in his famous patriotic poem, “सारे जहाँ से अच्छा हिन्दोस्तां हमारा, हम बुलबुलें हैं इसकी ये गुलिस्तां हमारा … मजहब नहीं सिखाता आपस में बैर रखना, हिन्दी हैं हम, वतन है हिन्दोस्तां हमारा”. When he uses the term ‘Hindi’, he does not mean a particular community or religious group; he means the people of Hindustan, irrespective of caste or religion.

The communalisation of this term ‘Hindu’ was done by Savarkar when he divided the Holy land Puṇyabhūmi from Fatherland Patṛbhūmi, and in doing so, excluded the Muslim and Christian community. With Hindustan, he envisioned a Hindu nation. The current petition at hand followed that same intention, which goes against what a secular nation stands for.

According to Jawahar Lal Nehru, “The correct word for ‘Indian’, as applied to country or culture or the historical continuity of our varying traditions, is ‘Hindi’, from ‘Hind’, a shortened form of Hindustan. ‘Hindi’ has nothing to do with religion, and a Moslem or Christian Indian is as much a Hindi as a person who follows Hinduism as a religion”[4]

Replying to the petitioner, in the case at hand, the Supreme Court bench noted that “India is already called Bharat” under Article 1 of the Indian Constitution. The petitioner sought the complete exclusion of the name “India” to “instill a sense of pride in our own nationality.” The logic of the Supreme Court rings true when one examines the practice followed by other nations too. Nations like Spain, Germany, or Japan did not change their official English name to España, Deutschland or Nippon respectively, then why is such a religion coloured need felt in a secular democratic country such as ours?

The petitioner further mentions Constitutional Assembly debate in his application but conveniently omits that any and all such suggestions were deemed as unnecessary. Even suggestions such as those by Kamlapati Tripathi proposing “Bharat, that is India” and Hari Vishnu Kamath proposing “Bharat, or, in the English language, India, shall, be and such” were rejected by the assembly. 

The sentiment shared by the aforementioned political leaders as well as the petitioner that there is a requirement to rid ourselves from the colonial constructs is flawed to an extent. Structures such as the Parliament, The Supreme Court, the Railway network, many major laws such as the Indian Contracts Act 1872, Indian Penal Code 1860, The Indian Evidence Act, 1872, Transfer of Property Act, 1882 were all developed in the colonial era. The nationalist argument based on ethnocentrism, symbolism, and ridding the country from the “symbols of slavery” is not only unnecessary, but it also focuses on the growing Hindu centric sectarianism. 

It is argued that it is not the name of the country that matters; it is how it is represented on an international front. The respect of, rights of the individuals, the freedom of press, and independence of non-political organisations that define its position in that matter. In these tumultuous and difficult times, the Supreme Court should have imposed heavy costs on the petitioner for making unnecessary claims and wasting the honorable court’s time, instead of referring the application as a representation to the centre.


Daksh Saroha and Lavanya Chawla are fourth year law students from Amity Law School, Delhi.


[1]Bʀᴀᴛɪɴᴅʀᴀ Nᴀᴛʜ Mᴜᴋʜᴇʀᴊᴇᴇ, Tʜᴇ Fᴏʀᴇɪɢɴ ɴᴀᴍᴇs ᴏғ ᴛʜᴇ Iɴᴅɪᴀɴ Sᴜʙᴄᴏɴᴛɪɴᴇɴᴛ 46 (Place Names Society of India, 1989).

[2]3 Pᴀɴᴅᴜʀᴀɴɢ Vᴀᴍᴀɴ Kᴀɴᴇ, Hɪsᴛᴏʀʏ ᴏғ Dʜᴀʀᴍᴀsᴀsᴛʀᴀ 137 (2nd ed. Bhandarkar Oriental Research Institute, Poona 1973). 

[3]Bɪᴘɪɴ Cʜᴀɴᴅʀᴀ Pᴀʟ, Tʜᴇ Sᴏᴜʟ ᴏғ Iɴᴅɪᴀ: A Cᴏɴsᴛʀᴜᴄᴛɪᴠᴇ Sᴛᴜᴅʏ ᴏғ Iɴᴅɪᴀɴ Tʜᴏᴜɢʜᴛs & Iᴅᴇᴀʟs 387 (4th ed. Yugayatri Prakashak Limited, 1958).

[4]Jᴀᴡᴀʜᴀʀ Lᴀʟ Nᴇʜʀᴜ, Dɪsᴄᴏᴠᴇʀʏ ᴏғ Iɴᴅɪᴀ 76 (6th ed. Oxford University Press 1994)

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

PATRIARCHAL NOTIONS IN THE INDIAN JUDICIARY: SUBVERTING WOMEN’S CONSTITUTIONAL RIGHTS

Amol Verma, a 4th-year student of CNLU, Patna discusses about the manifestation of patriarchal notion by Indian judiciary and the constitutional rights of women in the country.

Introduction

In the Indian Jurisprudence, the victims of sexual assault are treated worse than the offenders, thereby grossly undermining the dignity of the victims. Patriarchal notions have become deep-rooted in our society to the extent that the judiciary is also not unaffected by it. The victims of sexual assault have to fulfill a prescriptive list of conditions for their testimony to be credible in the eyes of the law. Even in cases where the victims’ complaint against the perpetrators results in a conviction, we find that the offence of rape is typified as one that robs the women of her much-valued chastity and honour. All of this results in the utter disregard of women’s bodily integrity and autonomy. Judicial precedents have virtually created a requirement of self-defense, which is unique to the crime of rape. This is despite the fact that India has through legislation abandoned the requirement of resistance and adopted the requirement of consent.[1] Prior sexual history tends to vitiate the complainant’s credibility. Rape happens to be the only crime where the victim’s actions during the crime and her past behaviour are considered relevant to determine the outcome of the trial.[2] 

The Recent Archaic Order of The Karnataka High Court and An ‘Ideal Rape Victim’

In a recent order[3], a single judge of the Karnataka High Court considered a bail application made by a rape accused. While granting the anticipatory bail, the judge pointed out that the allegations made by the complainant were difficult to believe and that the complainant did not object to having a drink with the accused and even let him stay till the next morning. The Judge further observed that the explanation offered by the complainant that she was tired and fell asleep was unbecoming of an Indian woman. This patriarchal observation by the judge was followed by another remark as he pointed out that this is not how our Indian women behave when they are ravished. While these observations have since been expunged, it speaks volumes of how patriarchal notions have become engrained in our system.

Manifestation of Patriarchal Judgments and Notions By the Judiciary

There have been important legislative changes in the last few years, most notably after the Nirbhaya Gang Rape Case.[4] After the case of State of Punjab v. Ram Singh[5], prior sexual history has been rendered irrelevant by the repeal of Section 155(4) of the Indian Evidence Act, 1872.[6] Furthermore, after 2013, the absence of physical resistance cannot be regarded as consent. However, changes in statutory provisions appear not to have altered the way evidence is appreciated in rape cases. In Raja v. State of Karnataka[7], despite the fact that the victim was kidnapped and gang-raped, the Apex Court remarked that the victim’s behaviour was unlike a rape victim and added that she was accustomed to sexual intercourse. Similarly, in Mahmood Farooqui v. State (Govt of NCT of Delhi)[8], the Delhi High Court observed that in certain instances it is difficult to ascertain that there was no consent when there is little or no resistance by the victim and a feeble ‘no’ by the victim may imply a ‘yes’ therefore not amounting to the offence of rape.  The Punjab and Haryana High Court in Vikas Garg & Ors. v. State of Haryana[9], observed that the rape victim had social relations with the perpetrators, and basis this arrived at outrageous conclusions regarding the consent, thereby belittling the integrity of the women. The court added that young minds with a bright future should not be allowed to rot in jail. The court considers woman’s chastity and honour as her most prized possession. It views a physically and mentally devastated victim’s testimony as more credible as was observed by the Supreme Court in Kamalanantha & Ors. v. State of Tamil Nadu.[10] 

All of the above egregious observations are despite the proviso to section 375[11] which states that: 

“A woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”

An ideal rape victim is supposed to physically resist the offence of rape; this aggravates the chances of harmful consequences and could possibly lead to her death. Ultimate insults and humiliations are heaped on the victim, which converts the accuser into the accused and is a fertile ground for making the accused rapist the accuser. 

It wouldn’t be an exaggeration to say that the above judgments grossly ignore the statutory mandates and subvert women’s constitutional rights. The law, as it is administered by the courts, grossly undermines women’s fundamental rights guaranteed under Article 14 and Article 21 of the Constitution of India. A right to the freedom to live her life as she chooses is infringed upon by this subversion of the judicial process and disregard of the legislative provisions.  

Conclusion and Way Forward

The JS Verma Committee dealt, in detail, with the constitutional rights of women in Chapter I of its report.[12] It highlighted that women are also guaranteed equal protection of the laws; therefore, offences committed against women must be tried in an effective manner so as to ensure the successful conviction of such offences. To achieve the same, the state must set up a dynamic review mechanism. Pasayat J. in State of Himachal Pradesh v. Shree Kant Shekari[13], observed with specific reference to Article 21 that rape is a crime against basic human rights, and is violative of the victim’s right to life.[14] Therefore, the courts are expected to deal with sexual crimes against women with the utmost severity. The 2018 Amendments[15] increased the jail terms for the offence of rape by inserting new provisions. However, what is the need of the hour are more proactive legislative changes that are targeted towards mitigating the imbalance of credibility that women tend to face, which are formulated taking into account the patriarchal double standards that women live with. It is important to understand that these steps are bound to be ineffectual if the outlook of the judiciary does not change. A socially aware and sensitized judge is always a better statutory armour in cases of crimes against women.


Amol Verma is a fourth year student from Chanakya National Law University, Patna.


[1]Indian Penal Code 1860 Proviso § 375.

[2]Mrinal Satish, Virginity and Rape Sentencing, The Times of India (Jul. 15, 2020, 8:55 PM), https://nludelhi.ac.in/UploadedImages/7c23fbec-6b60-4587-a0b3-2c999bdd996a.pdf.

[3]Rakesh v. State of Karnataka, Criminal Petition No.2427 OF 2020.

[4]Mukesh & Anr. v. State of NCT for Delhi & Ors.,  (2017) 6 SCC 1.

[5]State of Punjab & Ors. v. Ram Singh, AIR 1992 SC 2188.

[6]The Indian Evidence Act 1872 § 155(4).

[7]Raja & Ors v. State of Karnataka, AIR 2016 SC 4930.

[8]Mahmood Farooqui v State (Govt. of NCT of Delhi), 243 (2017) DLT 310.

[9]Vikas Garg & Ors. v. State of Haryana, (2018) 1 CriCC 176.

[10]Kamalanantha & Ors. v. State of Tamil Nadu, (2005) 5 SCC 194.

[11]Indian Penal Code 1860 § 375.

[12]JS Verma Committee, Report of the Committee on Amendments to Criminal Law (Jan.23, 2020), https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.

[13]State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404.

 [14]INDIAN CONST. art 14.

[15]The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018 (India).

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

THE ESSENTIAL COMMODITIES (AMENDMENT) ORDINANCE, 2020 – DOES IT HIT THE RIGHT NOTE?

Saumya Gupta, a final year law student from NUALS, Kochi reviews the implications of recent amendment in the Essential Commodities Act on the agricultural economy of India.

To make agriculture sustainable, the grower has got to be able to make a profit. – Sam Farr

The recent amendment to the Essential Commodities Act (ECA) via an ordinance is a welcome step owing to the crisis in the agricultural economy. It seems to be a transformative move as it is considered to be farmer-friendly. The amendment is grounded on the narrative of ‘One nation, one market’ and hogging all the spotlight right now. In light of current panorama, it becomes important to evaluate this law to highlight its possible impact on the agri-business and farmers.

What led to the amendment?

This law was enacted against the backdrop of food scarcity that was persisting in the country back in time, with the aim to put a check on hoarding and black-marketing of essential food items. However, the situation has changed since then as the statistics substantiate the fact that production has increased exponentially over the past six decades.[1] 

The economic survey 2019-2020, found ECA to be distortive of the agricultural market. Several reasons cited were ineffectiveness of stock limits in controlling price volatility, the low conviction rate in contrast to numerous raids, futile administrative efforts, etc. Survey also called upon the government to assess the relevance of ECA in the present times, asking for much-needed amendments in the obsolete law. NITI Aayog has also called this act as a hindrance to the farm exports.[2] The amendment came out after a protracted delay shown by the government in realising the need to further liberate the Agri-economy.

Finally, in the wake of the crisis created by COVID-19 in agriculture and Agri-market, by the closure of mandis and supply-chain disruptions, the government has introduced the much-awaited reforms.

Amendment and its Positive Impacts-

The amendment has added a sub-section 1(A) to Section 3 of the Act; it restricts the power of government by formulating a mechanism for regulation of foodstuffs like grains, oils, pulses, potatoes, etc. These foodstuffs can only be regulated under extraordinary circumstances, i.e., war, famine, extraordinary price rise natural calamity of grave nature, to protect the interest of consumers. Also, stock limits can be imposed on the criteria of price rise of certain commodities. It specifies that limits can be invoked only in two circumstances, i.e., in case of horticultural produce, a 100% increase in the retail price, and for non-perishable agricultural foodstuffs, set-off will be a 50% increase in the retail price. 

Interestingly, the amendment provides that the value chain participants shall be absolved from the imposition of stock limits. Therefore, in the absence of stock limits, the value chain participants such as processors, millers, importers, exporters, traders can hold as much stock of these commodities as they want to. However, the aforementioned provision is only applicable when participants are in compliance with the rider to the provision, i.e., stock held shall be less than (i) overall ceiling of installed capacity of processing, or (ii) demand for export in case of an exporter.[3] Further, orders relating to the Public Distribution System and Targeted Public Distribution System are exempted from the application of the ordinance.

The positive impacts of the amendment are multi-fold, which are both farmer-friendly as well as business-friendly. Now, it seems the power wand has been handed over to the farmers, for good. They can now store and export commodities as per their wish because the stock limits can be imposed on certain situations of excessive price rise only.

One of the major reasons behind introducing this amendment was to attract private investments into the farm sector, especially in cold storage, warehouses, processing, and export.[4] There was almost no private investment in the aforesaid facilities as many commodities fall under the purview of the act, and sudden imposition of stock limits created unnecessary ruckus and fear. Amended law will also attract foreign investments by removing excessive regulatory interference and pave the way for entrepreneurial advances.

Further, the amendment sets to herald the positive changes by increasing cold-storage and processing facilities. The lack of adequate cold-storage facilities and processing avenues often leads to wastage of perishable commodities and leaves a dent in the farmers’ pockets.[5] The move is also expected to control inflation in the lean season.

Moreover, it may lessen the instances of harassment faced by innocent exporters, producers, etc.at the hands of bureaucracy in the form of hollow raids and others. Dilution of power of imposing stock limits and exclusion of value chains may cut down such practices and reduce red-tapism.  

Possible Drawbacks-

Though these amendments are receiving much critical acclaim, the possibility of them being the harbinger of a few hazardous effects is not unlikely. The confidence shown by the government in the market power to attract investment and uplift the farm sector might be myopic in nature.

The negative implications can be seen in the following ways- 

  • Opportunists may resolve to limitless stocking, encashing upon the vacuum created by a lack of governmental responsibility to regulate prices of commodities. This will eventually lead to hoarding and black-marketing. Further, the act doesn’t distinguish between genuine stock holding and speculative hoarding, which creates a dubious situation.[6]
  • The regulation and monitoring of the market will cease to exist, as there will be no regulatory body to oversee market activities.
  • In the long run, there is a likelihood of the creation of monopolies and cartels, which can adversely affect the competition and prove to be perilous for the farmers.
  • This situation may result in a general price level hike[7] and, thus, negatively affect the industries dependent on the agricultural sector.

Conclusion

The evaluation of the law brings forth the two sides of the coin, but the million-dollar question here is whether it meets the present demand of the issue, i.e., crop loss, plummeting agricultural wages, and repayment of crop loans by farmers. It will most likely have long-run positive impacts, but immediate concerns remain unaddressed. Looking into the bigger picture, one can only hope that these reforms turn out to be efficacious by proper implementation and monitoring.


Saumya Gupta is a final year law student from NUALS, Kochi.


References

[1]Undermining Markets: When Government Intervention Hurts More Than It Helps, Economic Survey, Vol. 1, (2019-2020),https://www.indiabudget.gov.in/economicsurvey/doc/vol1chapter/echap04_vol1.pdf

[2]Joe C Mathew, Essential Commodities Act is a hindrance to Agri exports, says Niti Aayog, Business Today, (July 7, 2020,6:16 PM) https://www.businesstoday.in/sectors/agriculture/essential-commodities-act-a-hindrance-to-agri-exports-says-niti-aayog-farm-

[3]The Essential Commodities (Amendment) Ordinance,2020 (https://consumeraffairs.nic.in/sites/default/files/file-uploads/essential-commodities-order/EC_Ordinance.pdf)

[4]Union Cabinet, PM chairs Cabinet Meeting to give historic boost to Rural India, Pib (June 03, 2020, 5:02PM)https://pib.gov.in/PressReleasePage.aspx?PRID=1629033

[5]Id.

[6]Supra note 1 

[7]Farm gate in focus: On amending Essential Commodities Act, The Hindu, (May 18, 2020, 01:22 AM)https://www.thehindu.com/opinion/editorial/farm-gate-in-focus-the-hindu-editorial-on-move-to-amend-essential-commodities-act/article31609782.ece

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Scrapping labour laws: whether legitimate or not?

Shailee Mishra, a 2nd year law student from University of Allahabad, reviews the suspension of labour laws amid COVID-19 pandemic by some States in India and its repercussions.

Genesis:

When we hear the word ‘labour’ a picture with distressed, poorly dressed, and carrying enormous responsibilities in his shoulder, etc. comes to one’s mind. This is the person who plays a significant role in pushing the economy of the nation upwards.  However, absurdity is that this person does not get a meal for one time, clothes to cover the body, and a roof for his shelter. As COVID-19 pandemic hit India the plight of generally suppressed labour has deteriorated. Meanwhile, some state’s Government has suspended basic labour laws temporarily which has taken the plight to another level. It has seen as a well-planned endeavor to accomplish economic escalation at the cost of these anguishes, discomfort, and pain of these vulnerable communities. 

The prerequisite: 

On 8th May 2020, the government of Uttar Pradesh has commenced an ordinance called temporary exemption from certain labour laws and exempted businesses from the scope of four basic labour laws viz., Building and Other Construction Workers Act[1]Section 5 of Payment of Wages Act[2]Workmen Compensation Act[3] and Bonded Labour Act[4] for a period of three years. It is also issued an announcement[5] relaxing the provisions concerning  working hours, overtime, intervals for rest, etc. as specified under sections 51, 54, 56, and 59 of the Factories Act. Accordingly, the State government of Madhya Pradesh also proclaimed exemptions of certain labour laws for the period of 1,000 days. Encouraged by these changes, the State government of Gujarat announced[6] exemptions of labour laws for the next 1,200 days and the State government of Assam announced a provision for fixed-term employment. 

During this crisis, the steadiness between demand and supply in the economy has been extremely effectuated. The industrial and manufacturing sectors is facing a serious downfall due to the lockdown measures and inter-state movement of the labourers. The government has taken the foremost step[7] to revive the economy which has been contracted in the wake of the tough situations created by the global pandemic. The object is to boost investment which in turn will balance the demand and supply. The action is taken to ensure ease of doing business. Even if we consider these objectives, the suspension of some laws seems unreasonable and baseless. If we have a look at the ordinance in UP, the government has exempted the employer from providing elementary duties viz., access of drinking water, first aid box, cleanliness, protective kit, etc. This is not the way to boost the economy and any reasonable investor would not be effectuated by these provisions. This would only lead to the affray of the most basic and primary rights of the vulnerable employees by the employers.

The test for legitimacy: 

The Constitution of India is a shred of evidence for establishing equality and liberty and ending the exploitation of the vulnerable. The drafters of the Constitution worked for the interests of many who sacrificed their benefit. The provisions drafted in Fundamentals Rights and Directive Principles of State Policy (DPSPs) clearly specify that the dignity and integrity of each and every individual is sacrosanct and due to the reform in law it is under serious threat. 

The absence of protections like the Minimum Wages Act 1948, Factories Act 1948, and Industrial Disputes Act 1947 would lead to the condition of repression i.e. modern slavery[8] which is in contravention to the Constitution of India. Article 23(1)[9] strictly restricts the forced labour and reads as, “Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law”. Any wage below the nominal wage is considered as bondage, the Supreme Court has observed further. In the case of Consusmer Education & Research Centre v. Union of India[10], the Supreme Court of India has observed that the employer is obligated to provide a safe and secure conditions of work as the same is a part of his right to life with dignity enshrined under Article 21[11] of the constitution. Hence, highlights the importance of safe and secure working conditions for workers. 

The move to suspend certain labour is seen as a direct contravention of the provisions of DPSPs given in the Constitution. To provide social economic justice to people and maintain social order is the sacred duty of the State. The manipulation of labour laws would further push labours into distress, further aggravating the evils like child labour and beggary. Further, the rights of the medically susceptible have been put to jeopardy, as pregnancy and other medical circumstances would now mean the termination of the employment, thus accumulating insult to the injury. The temporary revocation of some labour laws is not only against DPSPs but also contravenes the most basic and fundamental values enshrined in our constitution as aforementioned above. The values like equality, liberty, and dignity which are the heart of any democratic polity have been put at stake, which indicates that the said revocation is not only anti-social but also unconstitutional. This is the reason why the International Labour Organization, Central government and, Judiciary are taking a hard look at the severe step taken by states like UP, MP, and Gujarat.

Alternatives and Conclusion:

Through Advocates Vinayak Mitthal and Pranjal Shukla, the Uttar Pradesh workers’ front had moved the High Court confronting the legitimacy of temporary labour law exemption ordinance. The bench comprising of Chief Justice Govind Mathur and Justice Siddhartha Verma heard the matter, issued notices to the government and posted it for consideration on 18th May 2020. Unfortunately, the State government of Uttar Pradesh, on 15th May 2020 withdrew its notification on relaxing[12] certain labour laws. In an interview[13], the Vice Chairman of Niti Ayog has mentioned that the Union government of India does not believe that the reform of laws implies the elimination of labour laws in-toto.  Hence, he instructed the State against it. He also suggested an alternative to this i.e. the financial sector and especially the banking sector should now become less risk-averse and convalesce the credit flow to the MSMEs as well other segments of economy which will not only revive the demand but also economic activities in the nation. 

Ensuring top-notch set-up, low-priced credit amenities, and accessibility of trained labour by providing them appropriate training would come handy in providing an incentive to the domestic production of the goods and services. Whatever the purposes may be, such an attempt is not only unlawful but also inhuman. Resorting to inhuman and unlawful approaches like postponement of labour laws may or may not recover the economy but they will, no doubt, destruct the social fabric of the country. Equality, liberty and, dignity are the fundamental values that should not be negotiated in the light of economic growth. The growth in the economy would be of no benefit if its reimbursements do not reach everyone likewise. Such growth would only lead to the concentration of income and wealth. It cannot be denied that the ends are bona fide and for the collective good of all but the means do not take into consideration the greatest good of greatest number as many poor people have been asked to compromise for the good of some rich.


Shailee Mishra is a second year law student from University of Allahabad.


[1]The Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998 (India). 

[2]Section 5 in The Payment of Wages Act, 1936,  (July 11, 2020, 01:16),Indiankanoon.org, https://indiankanoon.org/doc/1624119/

[3]Workmen Compensation Act, 1923 (India).

[4]Bonded Labour System (Abolition) Act, 1976 Indiacode.nic.in, (July 11, 2020, 01:16), https://indiacode.nic.in/handle/123456789/1491view_type=browse&sam_handle=123456789/1362.

[5]Allahabad HC Issues Notice To UP Govt On PIL Challenging Relaxation Of Labour Laws On Working Hours, Overtime, Etc. Livelaw.in (July 11, 2020, 01:16), https://www.livelaw.in/news-updates/allahabad-hc-issues-notice-to-up-govt-on-pil-challenging-relaxation-of-labour-laws-on-working-hours-overtime-etc-read-order-156763?infinitescroll=1.

[6]Why labour law rejig is no reform Livemint, (July 11, 2020, 01:16),  https://www.livemint.com/news/india/why-labour-law-rejig-is-no-reform-11589300644620.html.

[7]Mazdur : Suspension of Labour Laws Livelaw.in, (July 11, 2020, 01:16), https://www.livelaw.in/columns/mazdur-suspension-of-labour-laws-156637?infinitescroll=1.

[8]Relaxation Of Labour Laws: A Route To Modern Day Slavery Livelaw.in, (July 11, 2020, 12:29) https://www.livelaw.in/columns/relaxation-of-labour-laws-a-route-to-modern-day-slavery-156898.

[9]INDIA CONST. art. 23, cl. 1.

[10]Consumer Education & Research Centre v. Union of India, 1995 AIR 922, 1995 SCC (3) 42 (India).

[11]INDIA CONST.art. 21.

[12]UP Govt Withdraws Controversial Notification For 12-hour Shift For Industrial Workers Livelaw.in, (Jul 11, 2020), https://www.livelaw.in/news-updates/up-govt-withdraws-controversial-notification-for-12-hour-shift-for-industrial-workers-156857.

[13]Reforms do not mean complete abolition of labour laws, says Rajiv Kumar The Economic Times, ( Jul 11, 2020), https://economictimes.indiatimes.com/news/economy/policy/reforms-do-not-mean-complete-abolition-of-labour-laws-says-rajiv-kumar/articleshow/75941042.cms.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

SC allows jagannath yatra, opening A pandora’s box – “Will Lord Jagannath forgive us NOW?”

Abhinav, a 3rd year student from National Law University, Jodhpur discusses about the modification of Supreme Court’s decision regarding holding of Lord Jagannath’s Rath Yatra in the midst of a pandemic.

The Hon’ble Supreme Court of India on 23rd June, 2020 modified[1] its earlier order in Odisha Vikash Parishad v. Union of India[2] to allow holding of the Lord Jagannath Rath Yatra at Puri, but with certain restrictions to ensure safety amidst the COVID-19 pandemic. The modification was made consequent to an interlocutory application filed by the State and other intervening parties for modification of its earlier order[3], however the apex court committed certain substantive and procedural illegalities which shall be discussed below.

Previous order of the Hon’ble apex court: Ban imposed on the yatra

In the earlier order[4] dated 18th June, 2020 passed in the petition filed by NGO Odisha Vikash Parishad, the Supreme Court imposed a ban on conducting any Rath Yatra in entire Odisha in light of the rapidly growing COVID-19 pandemic. The bench headed by Chief Justice S.A. Bobde observed that Article 25 of the Constitution of India guarantees freedom to practice, profess and propagate one’s religion however, such freedom is ‘subject to’ public order, morality and health.[5] Understanding that the congregation of people in order to carry out the Rath Yatra is likely to affect public health by fuelling spread of Corona virus, it was held that the Yatra stands stayed for the year in light of the larger health concerns.[6]

Interesting to note, CJI Bobde made the following observation on Solicitor General Tushar Mehta’s plea to not impose a blanket ban on the carrying out of the Yatra:

We have good enough experience to know that if we allow any religious activity, then there will be a gathering… Lord Jagannath will not forgive us if we allow it”.[7]

The aforementioned remark indicates that the bench, including the Chief Justice, was very well aware that any allowance of the Yatra will result into congregation of people thereby spreading the virus and therefore, a blanket prohibition on the Yatra is the best possible solution in the larger safety interest of the public.

Modification of the order: Whether exigent?

As stated earlier, the June 18 order was later modified to allow the Rath Yatra at Puri alone with certain restrictions to strive to ensure maximum public safety. The Central government contended that some other ritual instead of the Rath Yatra could be permitted. However, Centre’s plea to support conduct of Puri festival seems to contradict its own stand when it was earlier found accusing Tablighi Jamaat congregation of ramping up the spread of Corona virus.[8] The Odisha Government, while expressing its apprehension on thousands of Rath Yatras taking place all over the State, filed an affidavit stating that the Yatra could be permitted in Puri only without public attendance and that the State government was willing to make necessary arrangements in furtherance of the same.

The apex court modified its previous order after hearing the above submissions to allow holding of Rath Yatras at Puri with specific restrictions to the State.[9] However, the decision seems to be unwarranted because Odisha was already facing high risk of the virus, with Puri classified as a high-risk zone. Concerns have also emerged that the Supreme Court decided to modify its previous order in response to the protests and demonstrations carried out by devotees in Odisha against the previously imposed ban[10] but nothing can be said in that regard with certainty. Additionally, the said modification is also fraught with substantive and procedural irregularities, which shall be discussed below.

Substantive illegality – Article 25 of the Constitution: “NOT” subject to public health?

Heavy reliance needs to be placed on the intention of the legislature while granting the freedom of religion to all persons by way of Article 25 (mainly Clause1)[11] of the Constitution of India. Article 25(1) begins with the words “subject to public order, morality or health” even before granting the actual freedom of religion.[12] Article 25(1) is very clear in its meaning and essence and does not present a major interpretive difficulty.[13] A literal interpretation would support the contention that the freedom guaranteed by Article 25 must pave way for protection of public order, morality and health.

With the world grappled by the attack of Corona, India alone has witnessed as many as 742,000 positive cases and around 21,000 deaths attributable to the virus alone.[14] Therefore, the health risks posed by the virus are definite and unquestionable. Interpretation of Article 25 to allow conduct of Rath Yatra as part of freedom of religion in the wake of global COVID-19 pandemic opens a pandora’s box. Such an interpretation definitely obliterates the mention of “health” as a ground to restrict the religious freedom under the said article. As already stated, the apex court did understand the health concerns posed by the Corona virus which had earlier prompted it to ban the Rath Yatras. However, modification of the said order sets a bad precedent of attaching lower value to the larger health concerns while keeping the religious freedom at a higher pedestal.

The detrimental effect of such a precedent can be anticipated when the concerned order will be cited by religious devotees to claim their freedom of religion even when public health or order are at stake. State’s arguments of ensuring adequate health safety in the times of pandemic while conducting the yatras should not have prompted the Hon’ble Supreme Court to reverse its earlier order and allow the yatras at Puri.

Very recently, the Punjab & Haryana High Court in Mubeen Farooqi v. State of Punjab & Ors.[15] had the opportunity to consider the freedom of religion amidst COVID-19 pandemic.[16] While holding that closing down of religious places and consequent non-performance of religious practices does not violate any fundamental right, the Court observed thus:

Freedom to religion is subject to public order, morality and public health and there is no violation of religious rights of a community. It is an extraordinary situation. To safeguard the health of the society, restrictions have been imposed by closing down all the places of worship for public.[17]

The Court also observed that the restriction imposed due to COVID-19 is a regulation and not a prohibition which does not abridge any fundamental right, let alone right to freedom of religion.[18] By imposing such a restriction, the Ministry of Home Affairs aims at breaking the cycle of spread of Corona virus by maintaining social distancing.

Therefore, the Hon’ble apex court in the present case committed the substantive illegality by paying lesser heed to “health” as a ground mentioned in Article 25(1) thereby setting a bad precedent in law.

Procedural Illegality – Modification by Interlocutory Order, but “review” in Essence

In addition to the above, the apex court also committed a procedural illegality by modifying its earlier order in pursuance of the interlocutory application filed by the respondents.

An interlocutory order does not go on to determine the legal rights and liabilities of the parties to the case. It was observed in Surendra Sawhney v. Murlidhar & Ors.[19] that an interlocutory order cannot encroach upon the merits of the controversy between the parties. Arguments on merits of the case therefore, are not entertained in response to an interlocutory application. However, in the present case, the original order was completely reversed and the reversed order had a bearing on the merits of the controversy and thus, it could not have been done by entertaining an interlocutory application.

Article 137[20] of the Constitution of India grants the Hon’ble Supreme Court the power to review any judgment or order already passed by it. The power of review under Article 137 is different from the modification of a court order by an interlocutory application, and the latter cannot serve as a by-pass procedure for undertaking a review in essence. The 2007 judgment of the apex court in APSRTC & Ors. v. Abdul Kareem[21] which relied on Delhi Administration v. Gurdip Singh Uban & Ors.[22] offers strength to the above argument, wherein it was held that:

By describing an application as one for “clarification” or “modification” though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance a clever move for review.[23]

In the matter at hand, several IAs were filed for modification of the original order however, the modified order turned out to be totally contrary to the original one. Thus, the application for modification was in essence an attempt to get the decision reviewed, without actually invoking the court’s power under Article 137. Therefore, if the court in the present case wanted to reverse its earlier order to re-determine the right to hold yatras, the legitimate course would have been by exercising the power vested in it by Article 137 and not by passing an interlocutory order for the same. By doing so, the apex court committed a procedural illegality and thus, the said order appears to be clearly challengeable on the above-mentioned grounds.

Conclusion

Not only was the Hon’ble Supreme Court’s modified order unwarranted in the wake of global COVID pandemic, it also suffers from substantive and procedural illegalities elucidated by way of the present analysis. All-in-all, the court’s order to allow Rath Yatras at Puri is arguably a bad precedent for incorrect interpretation of Article 25, which per se has been brought about by contravening the legitimate procedure enshrined by the Constitution. This is just another instance where the Supreme Court has adopted crooked measures to deliver the decision it wishes to, even if in disobedience of the constitutional mandate. The question therefore emerges: Will Lord Jagannath forgive us (the Hon’ble Supreme Court of India) now? 


Abhinav is a third year student from National Law University, Jodhpur.


[1]SC Observer, https://scobserver-production.s3.amazonaws.com/uploads/beyond_court_resource/document_upload/478/Order_22-Jun-2020.pdf (June 29, 2020) [Modified Order, Odisha Vikash Parishad v. Union of India].

[2]Odisha Vikash Parishad v. Union of India, 2020 SCC OnLine 533; Writ Petition (Civil) No. 571/2020.

[3]SC Observer, supra note 1.

[4]SC Observer, https://scobserver-production.s3.amazonaws.com/uploads/beyond_court_resource/document_upload/477/Order_18-Jun-2020.pdf (June 29, 2020) [Original Order, Odisha Vikash Parishad v. Union of India].

[5]Id.

[6]Id.

[7]Express Web Desk, Supreme Court allows Puri’s Rath Yatra with no public attendance, The Indian Express, (July 01, 2020), https://indianexpress.com/article/india/jagannath-puri-rath-yatra-supreme-court-order-6470525/.

[8]Despite Its Guidelines Against ‘Stigmatisation’, Govt Hypes Jamaat Role in COVID-19 Spread, The Wire, (July 02, 2020), https://thewire.in/government/health-ministry-covid-19-tablighi-jamaat.

[9]Odisha Vikash, supra note 2.

[10]As Protests in Odisha Mark SC’s Ban on Rath Yatra, Stand Taken by Centre and Odisha Under Scrutiny, The Wire, (July 02, 2020), https://thewire.in/law/supreme-court-rath-yatra-ban-analysis.

[11]India Const. art. 25, cl. 1.

[12]India Const. art. 25, cl. 1.

[13]Indian Constitutional Law and Philosophy, Article 25, (July 03, 2020), https://indconlawphil.wordpress.com/tag/article-25/

[14]Worldometers, https://www.worldometers.info/coronavirus/country/india/ (last updated July, 08, 2020).

[15]Mubeen Farooqi v. State of Punjab & Ors., CWP-PIL-52-2020 (O&M), [P&H HC].

[16]Surender Sharma, No violation of fundamental rights in keeping religious places closed: Punjab, Haryana HC, The Hindustan Times, (July 04, 2020), https://www.hindustantimes.com/cities/no-violation-of-fundamental-rights-in-keeping-religious-places-closed-punjab-haryana-hc/story-AazKmUQHjMNaE6Q11UlS3L.html.

[17]Mubeen Farooqi, supra note 5.

[18]Id. at ¶ 26.

[19]Surendra Sawhney v. Murlidhar & Ors., RLW 2008 (2) Raj 929.

[20]India Const. art. 137.

[21]APSRTC & Ors. v. Abdul Kareem, Civil Appeal No. 7797 of 2003.

[22]Delhi Administration v. Gurdip Singh Uban & Ors., 2000 Supp. (2) S.C.R. 496.

[23]APSRTC & Ors, supra note 12.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

CONUNDRUM OF COMPARATIVE AGONY: A MINOR RAPE SURVIVOR’S RIGHT TO ABORT v. RIGHT TO LIFE OF FETUS

Poojan Bulani and Rishav Devrani, both students of Rajiv Gandhi National University of Law, Punjab discusses how the right of abortion of minor rape survivor overweights the right to life of foetus in the light of Medical Termination of Pregnancy Act,1971 and various judgments of the courts.

INTRODUCTION

The pro-life versus pro-choice debate on the reproductive choice of a woman which made news last year was aimed at toppling the precedent set by Roe v. Wade[1], that had legalized abortion in the United States of America. Fortunately, the right to legal abortion is a basic human right protected by international conventions as well as national constitutions. 90 million or 5% of women of reproductive age[2] live in countries where abortion is still illegal. It becomes quintessential to discuss the status quo of the paradigm of the right in the second most populated country in the world. 

In a recent judgment, the Rajasthan High Court pronounced[3] that a minor rape survivor’s abortion rights exceed an unborn child’s fictional right to life. As the developing country has most of its population rural-based, children and women form a part of the population with no freedom of choice. While there exists the right to abort in many countries, approximately 41% of women[4] belong to countries with restrictive abortion laws. A division bench comprising Justice Sandeep Mehta and Dr. Justice Pushpendra Singh Bhati while reiterating a Supreme Court case of 2009[5] said that a woman’s right to reproduction was a fundamental right and that the right was inclusive of her choice not to reproduce. The pretext of such a verdict sheds light upon the Indian Jurisprudence regarding abortion.  

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The Indian legislation on abortion took form under the aegis of the Shantilal Shah Committee that recommended legalizing abortion in India in 1966, erstwhile to which abortion was illegal and invited several penal provisions.[6] The criminalisation of abortion in the country could be viewed as an aftermath of the British reign that imposed catholic ideologies and beliefs wherein abortion was a sin. After Independence, the lawmakers endeavoured at uprooting the beliefs by enacting the Medical Termination of Pregnancy Act, 1971. 

However, the Act is a five-decade old law and is regarded as an obsolete piece of legislation that ignores the reproductive choices of women and panders to the security of medical workers rather than its subjects. The Act upholds the right to procreation including the right to abstain from procreation. However, the caveat remains that abortion would be allowed for in exceptional cases like a risk to the life of the woman or fetus.

AMENDMENTS TO THE MTP ACT

Recently, the Union Cabinet approved the MTP (Amendment) Bill, 2020 which is the second time that the Act will be amended in its 49 years of existence.[7] The gestational limit is proposed to be extended from 20 to 24 weeks, although only for “special categories of women”. Whilst citing V. Krishnan vs. G. Ranjan[8], the court kept in purview that teenage pregnancies usually encompass complications and unsafe abortion can lead to maternal deaths. The India Journal of Medical Ethics in its 2015 report[9] cited unsafe abortions as one of the leading causes of maternal deaths in India.

Extension of the time-limit, hence, would ensure safety and aid in reducing the mortality rate.However, in a petition regarding the extension of the timeline for termination of pregnancy, the government sought that such extension should not be permitted.

JUDGMENT

The Indian judgment of the State Of Rajasthan & Ors. v. S. & Anr.[10] was a Special Writ Petition where the Court whilst overruling a single judge bench order from October 2019, emphasized that the right to life of a minor rape victim outweighs the right to life of the unborn child. The Constitution of India, under Article 21, guarantees the right to life as a fundamental right. However, the given case, by exceptional circumstances, invited case-specific analysis by the bench. The unraveling of the conundrum of comparative agony is a milestone set by this judgment. On one hand, it is the right of the minor female to abort, since the pregnancy arose out of rape causing grave injury to her mental health and on the other hand, the fetus’ right to life guaranteed by the Constitution. this becomes a landmark view considering how in umpteen cases the counter of an unborn child’s right to life often results in rape victims having to bear an unwanted pregnancy. Not only is this detrimental to the mental health of the victim but also places ambiguity around the environment in which the child shall be brought up. It is an undisputed fact that in a social setting of Indian community children born out of wedlock are deprecated. 

CONCLUSION

Five decades of a liberal law in place and yet, a majority of women lack access to secured abortion in India. The amendment will guarantee women safer access, increased availability, better technology, confidentiality, and quality of care. While America had a polarised opinion on abortion where approximately one half hailed a woman’s right to abort and the other considered abortion to be ‘destruction of life’, India’s opinion on abortion is not binary. Although abortion remains legal through statutes in place, there are structural constraints to a woman’s choice and assertive backlash against a woman’s right to abortion that need to be addressed.


Poojan Bulani and Rishav Devrani are fourth year students from Rajiv Gandhi National University of Law, Punjab.


[1]410 U.S. 113 (1973).

[2]Center For Reproductive Rights, https://reproductiverights.org/worldabortionlaws

[3]Infringement Of Right To Life Of A Rape Victim ‘Outweighs’ The Right To Life Of The Child In Womb’: Rajasthan HC Issues Directions For Termination Of Rape Victim, Network 11(11 June, 2020), https://www.livelaw.in/news-updates/rajasthan-hc-issues-directions-for-termination-of-rape-vitim-pregnancies-158155.

[4]Supra note 2.

[5]Suchita Srivastava & Anr v. Chandigarh Administration, (2009)9 SCC 1.

[6]Vinoj Manning, Medha Gandhi, Accessible Abortion, The Week (August 13, 2017) https://www.theweek.in/theweek/cover/accessible-abortion.html.

[7]VS Chandrashekar, Does the MTP Amendment Bill 2020 really advance Women’s Rights?, Business World (March 7, 2020), http://www.businessworld.in/article/Does-the-MTP-Amendment-Bill-2020-really-advance-Women-s-Rights-/07-03-2020-185470/

[8]1994 WritLR 91

[9]Shweta Krishnan, MTP Amendment Bill, 2014: towards re-imagining abortion care, IJME 43 Vol 12, No 1 (2015). 

[10]D.B. Spl. Appl. Writ No. 1344/2019.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

IN THE MIDDLE OF DIFFICULTIES LIES AN OPPORTUNITY: TIME FOR MEDIATION TO STEP UP AS AN EFFECTIVE MECHANISM FOR DISPUTE RESOLUTION IN INDIA

Raja Reeshav Roy and Aditya Anand, both students of National Law University, Jodhpur discusses Mediation as a mechanism for Dispute Resolution in India.

“Discourage litigation. Persuade your neighbours to compromise whenever you can point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time.” – Abraham Lincoln

The sudden arrival of Corona Virus epidemic and partial closure of courts for a long time has forced us to think over alternative dispute resolutions methods with mediation being the most viable alternative. It can also be said that in recent times, Mediation might have found a new interest in India and at its forefront is Our Apex court. Recently a three-judge mediation panel placed a report in front of the Supreme Court of India with regards to the ongoing protest at Shaheen Bagh in New Delhi.[1] Last year as well a constitution bench of the Supreme Court-appointed a three-member mediation panel in the Ayodhya dispute which also submitted a report before the judgement was produced.[2] In another instance last year, a division bench of the Supreme Court asked the central government to look over the feasibility of Motor Accident Mediation Authority so that it can be set up in every district to look over the cases of Motors Accidents and further speeding the process of compensation in accident cases.[3] In this article, we will be analysing the importance of mediation in the modern world and how a recognised system for mediation might act as a solution to India’s Overburdened Judicial system. 

Introduction 

The term “mediation” is defined as an intervention between conflicting parties to promote reconciliation, settlement, or compromise.[4] Mediation is seen as a means of resolving disputes outside of the judicial system by voluntary participation in negotiations structured by agreement of the parties and usually conducted under the guidance and supervision of a trained intermediary.[5] 

Mediation is derived from a Latin word ‘mediare’ where the word simply meant to be ‘in the middle.’[6] It is a well-known non-binding alternative dispute mechanism all over the world involving a neutral third party to find a midway point amongst the dispute between the parties, intending to reach at a mutually acceptable solution.[7] It facilitates the affected parties to communicate realistically and in a problem-solving manner, elucidate the concerns and empower them to envisage their own solutions.[8] In other words, it insists the parties for choosing what is right for them in a pragmatic manner by bringing objectivity to the dispute.[9] 

The concept of mediation reminds one of those dispute mechanisms which were widely prevalent in ancient and pre-British India. In the ancient Indian legal system, we had made use of a system called ‘Panchayat System’ or ‘Nyaya System’ where the respected and impartial individuals played a crucial role in resolving the community dispute.[10] Besides in the pre-British period, the combined process of mediation and arbitration was popular amid business community to resolve their conflicts.[11] Even today, the tribal community in some part of India make use of panchas or wise individuals to reach an amicable solution to their dispute.[12]  

Why Mediation is an important tool for overly burdened Indian legal system?

‘Justice delayed is justice denied,’ the frequently cited words of William Goldstone best describe the condition of present justice delivering system. For instance, in 25 high courts of our country, more than 43 lakh cases are pending and over 8 lakh cases are ten years old.[13] India has been ranked at 68th place amongst 126 nation in world justice report 2019 (rule of law index).[14] 

In the case of Kartar Singh v. the State of Punjab[15], the SC declared that right to a speedy trial is a fundamental right embedded in the guarantee of life and personal liberty preserved under article 21 of Indian constitution.[16]  Mediation provides for a system of a speedy trial and can be used to achieve the objectives that were expressed by the Supreme Court in the Kartar Singh case.[17] Mediation also involves minimal cost when we compare it to arbitration or litigation.[18] The core benefit of mediation is that it encourages parties to communicate, negotiate and reach at harmonious compromise while protecting their concerned interest.[19] In contrast, adversarial litigation does not advocate such facilities even if the parties are willing to do.[20] If the mediation procedure is well-established and deep-rooted, it portrays a scenario where people can settle the dispute while incurring least losses.[21]

Mediation and Indian legal scenario 

The concept of mediation was introduced in Modern Indian Legal system in the latter half of the twentieth century with the implementation of Arbitration and conciliation act, 1996. Section 30 of the act insists parties utilize mediation even if the arbitration proceeding has been started and it authorizes arbitral tribunal to use mediation to resolve the dispute.. In 1999, the Code of Civil Procedure (Amendment) Act, 1999 (CPC Amendment Act) was implemented, which introduces section 89 with reference to different modes of dispute resolution. The concept of ‘judicial mediation’ was also introduced with this amendment, through which the court can encourage parties to seek out other forms of alternate dispute resolution.[22] However, there is no statutory authority which governs the process and guarantees the element of ‘confidentiality’.[23] It was only in 2011 the apex court handed out the judgment which declared that the mediation proceeding should be ‘confidential’ in nature. Furthermore, the Supreme Court held that all cases about consumer disputes, commerce and trade could be mediated.[24] The law commission of India, in its 129th report, suggested that it should be made mandatory for courts to refer the dispute to mediation.[25] 

The recent trend has suggested that mediation has emerged as the most preferred means to settle the patent dispute. Eminent intellectual property scholar Late Shamnad Basheer had appropriately said that adversarial proceeding, because of its acrimonious features, always results in a waste of time, money and resources, therefore alternative dispute mechanism should be promoted to settle down the conflicts.[26]

Mediation legislation in other countries

More than 80 countries and international organizations have established a concrete mediation law to encourage alternative dispute resolution and counterbalance the ill-effects produced by the dwindling system of litigation.[27] China has enacted people’s mediation law and published more than 70 regulation to promote and utilize mediation in resolving a dispute.[28] While hearing cases, the Supreme People’s Court has announced and adopted the policy of ‘Priority for mediation’ and combining adjudication with mediation.[29] The Russian parliament adopted laws on mediation in 2010 and since then it is an integrated part of their justice delivering system.[30] The United States of America has introduced a court ordered and court-sponsored mediation system.[31] There exist many statuary authorities which provide for more than 2500 legal rules related to mediation.[32]

Concluding remarks 

The world is slowly recognising various modes of Alternate Dispute Resolution, with mediation being an important tool of it. With an ever-increasing number of pending cases in India, It is high time that mediation is given importance over litigation. In a country like ours where litigation is tiring both physically as well as financially, a step towards making mediation a more recognised channel for solving disputes will be a welcome step. With an overburdened judiciary, we stand at a crucial juncture today where we need to find some kind of solution to the pitfalls of litigation. 

It is often seen that proceedings before the ADR forums are challenged in front of courts even after coming to some sort of consensus during mediation; this acts as a barrier at times and also shakes people’s faith in the process. The true confidence in mediation can only be fostered when some sort of legal recognition and a way to enforce it legally is provided. 

The Supreme Court has already indicated towards a need for Indian Mediation Act[33], this proposal by the Supreme Court if properly pursued and implemented can act as a game-changer for our dispute resolution mechanism.

Traditionally, Mediation in India has been used in various forms by various groups, so there won’t be any inherent problem of accepting it as such. As suggested by the Supreme Court, It is very important to set up a dedicated mediation statue. If implemented properly, it will need a large number of professionals who will be needed to bring the process of mediation at the forefront and to smoothen the whole process. India has a strong network of law schools and in our opinion, these law schools are a very important place of learning where a strong base for mediation can be set and students can be trained in a dedicated manner to pursue their careers as professionals in the field of mediation.

Taking a cue from Albert Einstein’s quote “in the middle of difficulties lies an opportunity”¸ this is the perfect time for India to look for an opportunity in promoting methods of alternative dispute resolution with mediation being its flag bearer.


Raja Reeshav Roy is a fourth year student and Aditya Anand is a second year student from National Law University, Jodhpur.


References

[1]Rautray, S., Shaheen Bagh Mediators Submit Report, Supreme Court to Hear Case Tomorrow, The Economic Times (accessed on 28 June 2020) <a href=”http://<https://economictimes.indiatimes.com/news/politics-and-nation/shaheen-bagh-protests-court-appointed-interlocutors-file-report-in-sealed-cover-in-sc/articleshow/74279250.cms?from=mdr&gt;. 

[2]Ayodhya Mediation Panel Files Settlement Document in Supreme Court, The Hindu, (accessed on 28 June 2020),<a href=”http://<https://www.thehindu.com/news/national/ayodhya-mediation-panel-files-settlement-document-in supreme-court/article29698305.ece>. 

[3]M.R. Krishna Murthi v. The New India Assurance Co. Ltd., Civil Appeal No. 2476-2477 of 2019.

[4]Definition Of mediation, Merriam-webster.com, (Accessed 28 June 2020), https://www.merriam-webster.com/dictionary/mediation.

[5]Ibid.

[6]Law Reform Commission Ireland, Report on: Alternative Dispute Resolution: Mediation and Conciliation, (LRC 98-2010, November 2010).

[7]1070-71, Black’s Law Dictionary. (9th ed. 2009).

[8]Alexander Bevan, Alternative Dispute Resolution 18 Sweet and Maxwell, London, (1992).

[9]R.V. Raveendran, Mediation – An Introduction, (accessed on 28 June 2020),  http://bombayhighcourt.nic.in /mediation/index_articles.htm

[10]Anil Xavier, Mediation: Its Growth and Origin in India, (accessed on 28 June 2020), http://www.arbitrationindia.org/pdf/mediation_india.pdf.

[11]Ibid.

[12]Ibid.

[13]Out of 43 lakh cases pending in High Courts, over 8 lakh a decade old, (accessed on 28 June 2020), https://economictimes.indiatimes.com/news/politics-and-nation/out-of-43-lakh-cases-pending-in-high-courts-over-8-lakh-a-decade-old/articleshow/69974916.cms.

[14]Arbitration and Mediation: Need of the Hour, (accessed on 28 June 2020), https://www.indialegallive.com/constitutional-law-news/special-report-news/arbitration-and-mediation-need-of-the-hour-71112.

[15]Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

[16]Ibid.

[17]Kartik Adlakha, Mandatory Mediation in India – A boon or a bane to the legal system in the country? (accessed on 29 June 2020_, https://www.ciarb.org/resources/features/mandatory-mediation-in-india-a-boon-or-a-bane-to-the-legal-system-in-the-country/.

[18]James Melamed, A View of Mediation in the Future, 1(8) the Indian Arbitrator (2009).

[19]David Spencer and Michael Brogan, Mediation law and Practice, 68 (2006).

[20]Kenneth R. Feinberg, Mediation – A Preferred Method of Dispute Resolution, 16 PEPP. L. REV. 5 (1989).

[21]Vasily Ivanovich Vlasov, Galina Borisovna Vlasova, et.al., Comparative Analysis of Mediation Procedures and the Judicial Settlement of Conflicts,  XX European Research Studies Journal,  (2017).

[22]Vyapak Desai and Sahil Kanuga, Mediation proceedings are confidential says Supreme Court (accessed on 29 June 2020), www.indialawjournal.com/volume4/issue_1/article_by_desia_kanuga.html.

[23]Ibid.

[24]Afcons Infra Ltd v. M/S Cherian Varkey Constructions, (2010) (8) SCC 24.

[25]Law Commission of India, Report on Urban legislation mediation as alternative to adjudication, Report Number 129, (August, 1988).

[26]Sagnik Dutta, Trying mediation, (accessed on 29 June 2020), http://www.frontline.in/the-nation/trying-mediation/article6189578.ece.

[27]Tang Houzi, Worldwide use of mediation, (accessed on 29 June 2020), http://www.cityu.edu.hk/slw/ADR_Moot/doc/Worldwide_Use_of_Mediation_(by_Prof_Tang_Houzhi).pdf.

[28]Jiang Heping and Andrew Wei-min Lee, from the traditional to the modern: Mediation in China, (accessed on 29 June 2020), HTTPS://weinsteininternational.org/mediation-in-china/.

[29]Ibid.

[30]Kingsley Napley, A Global Trend towards Mediation: Views from Lawyers in 13 Countries, Dispute Resolution Law Blog, (accessed on 28 June 2020), <a href=”http://<https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog/a-global-trend-towards-mediation-views-from-lawyers-in-13-countries&gt;. 

[31]Supra, Note 22.

[32]Supra, Note 22.

[33]Supra, Note 3.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

OVERVIEW OF DOCTRINE OF SEPARABILITY IN INDIA

Himanshu Vashistha and Kanchan, both 4th year students of Faculty of Law, Banaras Hindu University, Varanasi discusses the Doctrine of Separability with help of various judgments given by the honourable Courts.

Introduction

A dispute may bring to the arbitration where parties voluntarily entered into an arbitration agreement. The parties are opting for arbitration in the hope of autonomy, speedy and less formal dispute resolution process by arbitrators having specific technical knowledge, and maintaining good relations between them. Every arbitration agreement contains certain clauses and conditions, and while entering into an agreement, parties agree to be bound by these clauses. In case of the termination of the agreement either by mutual consent or due to breach of a condition, these clauses also come to an end. Nevertheless, there are certain clauses and terms which survive even after termination of the agreement, to measure the claims arising out of the breach and to determine the mode of their settlement. Thus, the Doctrine of Separability layout that an arbitration clause/agreement included in or closely related to the contract is a separate and autonomous clause and survives the termination, breach, and invalidity of that contract. 

Origin of Doctrine of Separability

The Doctrine of Separability was originated in France, in the Gosset[1] Judgment and a few years later, the U.S. Supreme Court also acknowledged the separability of the arbitration clause in the Prima Paint Corp. v. Flood & Conklin Mfg. Co[2], wherein the Court concluded that as the Plaintiff was challenging the underlying contract generally rather than the arbitration clause specifically, arbitration of Plaintiff’s fraudulent inducement claims was required. The Court was also careful to state that the doctrine would not apply in situations where parties claim that they never agreed for arbitration, or they were fraudulently induced into signing an arbitration agreement.Since then, the concept of separability of the arbitration clause from the contract has been widely taken on board by courts, legislatures, and institutionalized arbitration centers.

The International Chamber of Commerce is the first arbitral institution that recognised the separability of the arbitration agreement in 1955, under Art.13[3] of ICC Rules of Arbitration, 1955. Further, the UNCITRAL Model Law on International Commercial Arbitration under Art.16[4], incorporates the doctrine of separability as, ‘an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.’ Furthermore, the United States Supreme Court in a recent judgment in Buckeye Check Cashing Inc. vs. Cardegna[5] admits that the separability rule permits a court “to enforce an arbitration agreement in a contract that the arbitrator later finds to be void.”

In addition to the above authorities, way back in the year 1942, the House of Lords in Heyman & Anr. v. Darwins Ltd.[6], Viscount Simon, L.C., capsulize the scope of an arbitration clause in a contract as, ‘An arbitration clause is a written submission, undertaken by the parties to the contract. If the issue is about the existence of a contract, that issue cannot go to arbitration under the clause. Similarly, if one of the parties contended that it is void ab initio (for example, the making of such a contract is illegal), the arbitration clause cannot operate, and the clause itself is void on this view.’

The statutory foundation of separability of an arbitration clause in India

Clause(1) of Section 7[7] of the Arbitration and Conciliation Act, 1996[6] defines the Arbitration agreement as“an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” Clause (2) of the same section further specifies that “an arbitration agreement may be in the form of an arbitration clause in a contract or the form of a separate agreement.” In addition to this, Sub-clause (a) of Clause (1) of Section 16[8] of the Arbitration and Conciliation Act, 1996 categorically states that “an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.” However, to ensure that there remains no misunderstanding, sub-clause (b) of clause (1) clear all doubts regarding separability of an arbitration agreement as, “a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.” Thus, a combined reading of both the aforesaid sections would substantiate that the main contract and the arbitration agreement form two independent contracts. Wherein Commercial rights and obligations are contained in the main contract accompanied by a second contract, which indicates the agreement and intention of parties to resolve the disputes relating to the main underlying contract through arbitration. It has been said that an arbitration agreement is an agreement within the agreement.

Judicial mapping of the doctrine of separability in India

However, even after enactment of the Arbitration and Conciliation Act, 1996, whether an arbitration agreement survives or perishes along with the main contract remains a point of discussion in a plethora of judgments by Indian Courts. It was contended that, since the contract between the parties abrogated by mutual consent, all the terms and conditions of the contract have come to an end, therefore the arbitration agreement, which forms part of the contract, also comes to an end and, the arbitration agreement cannot be enforced. Objections were raised, and the argument in support of separability of the arbitration clause was given, that over-riding principle for the Courts in the arbitration is to look whether there is an intention to arbitrate. The Court is not required to discover the presence of a concluded contract but only has to see the presence of a valid arbitration agreement. 

The relevant case-laws which pay the way for the doctrine of separability in India are as follows:

  1. National Agricultural Co-op. Marketing Federation India Ltd. vs. Gains Trading Ltd.[7]

In this case, it was held by Hon’ble Apex Court that an arbitration clause is a collateral term in the contract, which relates to resolution disputes, and not performance. Even if the performance of the contract comes to an end on account of repudiation, frustration, or breach of contract, the arbitration agreement will survive for resolution of disputes arising under or in connection with the contract.

2. P. Manohar Reddy and Bros. vs. Maharashtra Krishna Valley Dev. Corp. and Ors.[9]

The Supreme Court ruled that an arbitration clause being a collateral term need not, in all situations, perish with coming to an end of the contract. It may survive.

3. Enercon (India) Ltd. & Ors. vs Enercon Gmbh & Anr.[10]

In this case, the Supreme Court observed that arbitration is a remedy elected by parties outside the normal civil court remedy. Support of the National Courts would indeed be required to ensure the success of arbitration, but this would not detract from the legitimacy or independence of the collateral arbitration agreement, even if it is contained in a contract, which is claimed to be void or voidable or un-concluded by one of the parties.

4. Mulheim Pipe Coatings Gm bH vs. Welspun Fintrade Ltd.[11]

The Bombay High Court held that the doctrine of separability requires, for the arbitration agreement to be null and void, inoperative or incapable of performance, a direct impeachment of the arbitration agreement and not simply a parasitical impeachment based on a challenge to the validity or enforceability of the main agreement. Another way of considering the matter is, whether it is the further performance of the contract that is brought to an end or it is the existence of the contract, which is brought to an end. In the former case, the arbitration clause would survive, whereas, in the latter, the arbitration clause would not survive.

Effect of Doctrine of Separability

The effect of the doctrine of separability has been explained in Russell on Arbitration14 as follows: “The doctrine of separability underlines the potential width of an arbitration agreement because it establishes that an arbitration agreement has a separate life from the matrix contract for which it provides the means of resolving disputes. This enables the arbitration agreement to survive breach or termination of the matrix contract of which it forms part. The consequence of this separate existence is that even if the matrix contract has been brought to an end, for example, by accepted repudiation or frustration, the arbitration agreement continues in being to deal with any disputes in respect of liabilities under the matrix contract arising before or after termination.”[13]

Conclusion:

The Doctrine of Separability is imperative in maintaining the autonomy and integrity of the arbitration. Unless an arbitration clause is separated, a party to an arbitration agreement will manage to stay away, delay arbitration proceedings simply by challenging or committing a breach of the contract which contains the arbitration agreement within it. As a result, the parties will be left with no choice but to litigate, and such an argument, if accepted, could lead the arbitration to a fatal end. Hence, this doctrine helps to ensure arbitration’s continued effectiveness as a dispute resolution tool.


Himanshu Vashistha and Kanchan, both are fourth year students from Faculty of Law, Banaras Hindu University, Varanasi.


[1]Etablissements Raymond Gosset v. Frère Carapelli.,French Int’l Arb. L. Rep. 545,(Cass.:1963).

[2]Prima Paint Corp. v. Flood & Conklin Mfg. Co., 18 L.Ed 2d 1270, (U.S.: 1967).

[3]ICC Rules of Arbitration, Art.13, (1955) https://www.acerislaw.com/wp-content/uploads/2018/08/1955-ICC-Arbitration-Rules.pdf.

[4]UNCITRAL Model Law on International Commercial Arbitration, Art.16(1), (1985) https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf.

[5]Buckeye Check Cashing Inc. v. Cardegna., 163 L. Ed. 2d, 1038 (U.S.: 2006).

[6]Heyman & Anr. v. Darwins Ltd., 72 LI.L. Rep. 65, (H.L.: 1942).

[7]Arbitration and Conciliation Act S.7 (1996).

[8]Arbitration and Conciliation Act S.16 (1996).

[9]National Agricultural Co-op. Marketing Federation India Ltd. v. Gains Trading Ltd., 5 SCC 692, (SC: 2007).

[10]P. Manohar Reddy and Bros. v. Maharashtra Krishna Valley Dev. Corp. and Ors., 2 SCC 494, (SC: 2009).

[11]Enercon (India) Ltd. &Ors. v. Enercon Gmbh & Anr., 5 SCC 1, (SC: 2014).

[12]Mulheim Pipe Coatings GmbH v. Welspun Fintrade Ltd., SCC Online Bom 1048, (Bom: 2013).

[13]AMLEGALS, Drafting of an effective arbitration agreement, Mondaq.com (May 15, 2020, 3:31 PM), https://www.mondaq.com/india/arbitration-dispute-resolution/934184/drafting-of-an-effective-arbitration-agreement.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Cow, Constitutionalism, and interpretations of Article 48- “Meat of the Matter”

Aryan(Jindal Global Law School) & Gauri Singh(Durham University,U.K.) analyzes the interpretation of Article 48 by Indian Courts with special emphasis on the issue of cow slaughter and importance of the principle of ‘Constitutionalism’

In the landmark case of I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors[1], The Supreme Court of India highlighted the importance of the principle of ‘Constitutionalism.’ The Court noted that Constitutionalism limits absolutism[2] and denotes the control on the exertion of authority by the Government, to ensure that the fundamental principles of democracy are not undermined. The Court further acknowledged that the principle of Constitutionalism extends to the safeguard of fundamental rights, separation of power, and the sacredness/supremeness of the Constitution. The ruling of the Court replicates the principles of ‘Basic Structure’that has been historically laid down in the ‘Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala’, wherein the Court laid down that “basic features”of the Constitution cannot be amended.[3] The question of Constitutionalism is often discussed in relation to Article 48 of the Constitution and its application to prohibit the slaughter, sale, and consumption of cow in India. Article 48 of the Constitution of India has been prescribed under the ‘organization of agriculture and animal husbandry’and is a directive principle of state policy for the prohibition of cow slaughter.[4] Relying on the same, several states in India have laws pertaining to restrictions upon sale, consumption, and slaughter of cows.[5]

‘Article 48 of Constitution of India’ is a controversial inclusion in the Constitution of India, and both economic and religious reasons were cited to support its incorporation during the Constitutional Assembly debates.[6] However, as evident from the language of the Article, the drafters have conceived the inclusion of the Article on scientific and economic grounds. Several important cases have delved into the interpretation of Article 48 of India’s Constitution and its conflict with the fundamental rights prescribed under Part III of the Constitution. One of the first cases dealing with the Constitutional validity of laws prohibiting cow slaughter, and Article 48 was Mohd. Hanif Quareshi v State of Bihar[7].In this case, the Court considered the conflict between a total ban under Article 48 and Article 19(1)(g) and 25 of the Constitution of India. The Court dismissed the claims pertaining to Article 25, citing that cows’ slaughter was not an essential practice in Islam and thus didn’t violate the religious rights of any Muslim. With respect to the claims regarding the right to the profession of butchers under Article 19(1)(g)of the Constitution of India, the Court cited the economic utility of cows in the agricultural process as a justification of the cow slaughter laws. However, importantly, the Court interpreted Article 48of India’s Constitution as a practical provision and calved out an exception with respect to the slaughter of buffaloes and bulls in the event that they cease to be productive and are rendered incapable of providing milk or operating as draught cattle. 

To analyze the rationale adopted by this case, we must understand the conflict between Article 48 of India’s Constitution and the fundamental rights under the Constitution.[8] There is an inherent contradiction in the Court’s reasoning in adopting different thresholds for cows as against the bulls and buffaloes, and the same suffers from several Constitutional loopholes. Firstly, while the Court acknowledges that bulls and buffaloes fail to retain economic utility after a certain age, it doesn’t extend the same analysis to cows’ position. This is a problematic distinction as even cows, after a certain age, fail to remain productive and cease to provide milk. There are millions of unproductive cows, and the same is a burden on the farmers, who are restricted from slaughtering or selling them.[9] Therefore, this distinction is in violation of Article 14 of India’s Constitution as it is ‘manifestly arbitrary‘ as it doesn’t provide any rational justification of extending economic utility to only unproductive cows. Secondly, a blanket ban is in violation of the right to the profession (Article 19(1)(g) of Constitution of India of the butchers and also abridges their right to livelihood (Article 21of Constitution of India). This challenge was considered and dismissed by the Court, the same was done on the basis of ‘reasonable restriction in the interests of the general public.’ However, it must be noted that the Court didn’t extend the same justification to she-buffaloes, bulls, and bullocks and opined that they become useless after a certain age, becoming a burden on the economy. Drawing from the same rationale, butchers must be allowed to slaughter cows after they cease to remain useful. This practice is evident in some states wherein cows are slaughtered after obtaining ‘fit for slaughter certificates.’Thirdly, the blanket ban of slaughter, sale, and cow consumption is against the right to personal liberty and privacy of the citizens (Article 21of the Constitution of India). It must be noted that beef is a staple food for several communities and also a cheap source of protein for poor people. Therefore, in the absence of any ‘public interest’ justification as discussed above, an absolute restriction is against the personal liberty of an individual to decide the choice of his food. Moreover, as the right to privacy has been held to be a fundamental right, an individual’s food habits must not be subject to protection under the principle of ‘Constitutionalism‘ and shall not be arbitrarily restricted. In 2016, the Bombay High Court, giving due importance to Fundamental Rights, had rightly stated: “As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health.[10]

Therefore, Constitutionalism’s principles require practical application of Article 48 as the Supreme Court accorded to bulls and buffaloes but shied away from according to cows. The economic standpoint of Article 48 must be respected in order to ensure that an absolute bar is not imposed on unproductive cattle, and the fundamental rights under Part III are not violated.


Aryan is a third year student from Jindal Global Law School & Gauri Singh is a year law student from Durham University,U.K.


[1]I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, AIR 2007 SC 861.

[2]Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr., AIR 2006 SC. 980.

[3]Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala, (1973) 4 SCC 225).

[4]Article 48, Constitution of India, 1950.

[5]Cow Slaughter Prevention Laws in India, July 7, 2018, https://cjp.org.in/cow-slaughter-prevention-laws-in-india/, last accessed on May 7, 2020.

[6]Shalvi Singh, Cow Slaughter, and the Constitution: Uneasy Compromises, https://rmlnlulawreview.com/2016/08/31/cow-slaughter-and-the-constitution-uneasy-compromises/, last accessed on May 7, 2020.

[7]Mohd. Hanif Quareshi v. State of Bihar, [1958] AIR 731 (SC).

[8]Sandhya Ram, Ban on Cow Slaughter: The Camouflage of Article 48, October 25, 2015, https://www.livelaw.in/ban-on-cow-slaughter-the-camouflage-of-article-48/, last accessed on May 7, 2020.

[9]Murad Ali Baig, Cow Slaughter Is Mainly Bull, October 9, 2015, https://www.outlookindia.com/website/story/cow-slaughter-is-mainly-bull/295550, last accessed on May 7, 2020.

[10]Sheikh Zahid Mukhtar v State of Maharashtra, 2016 SCC OnLine Bom 2600.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

CHINA’S NATIONAL SECURITY LAW AND WHAT IT MAY MEAN FOR THE INTERNATIONAL RULE OF LAW

Ekta Garg, a 3rd year student of Army Institute of Law, Mohali discusses China’s National Security Law and it’s implications on International Rule of Law

Pro-democracy activists in Hong Kong and Chinese Authorities have locked horns several times since the past few years over the alleged violations of the rights guaranteed to the Hong Kong Special Administrative Region (HKSAR).[1] Hong Kong, widely considered as Asia’s economic and financial powerhouse, owes its status to the ‘one country, two systems’ principle. However, the pro-democracy movement in Hong Kong received a death blow after the Chinese legislature passed the highly controversial National Security Law in the region. This article aims to analyse the legal standing of the legislation under the Hong Kong’s Basic Law and the Sino-British Joint Declaration in brevity, and why the act of passing such legislation is a blow at China’s commitment to International Rule of Law.

Hong Kong’s political history at the root of unrest?

Hong Kong became a British colony in 1842, and with the conclusion of the Treaty of 1898, the New Territories and surrounding islands region of Hong Kong was leased to the British for a period of 99 years ending July 1997. The years following the end of World War II saw the city turning into a reliable business hub attracting companies who feared communist mainland China. In order to preserve the economic prestige of the city, the Sino-British Joint Declaration was signed, establishing the ‘one country, two systems’ principle, thus ensuring Hong Kong’s capitalist system and other rights to the people of Hong Kong, for a period of 50 years following the end of the treaty in 1997. Since then, the city follows the Basic Law, the mini-constitution governing Hong Kong.[2] The Basic Law, since the handover, required the city’s legislature to enact a national security law on its own, but its failure does so, coupled with the escalated pro-democracy protests of last year, appears to be the reason behind such undue haste behind the move by the National People’s Congress.

The National Security Law

Wang Chen, Vice Chairman of the National People’s Congress Standing Committee, while speaking at the opening of the Annual Session of the NPC- China’s Parliament, stated that the proposed legislation seeks to criminalise the following acts[3]:

  • Secession
  • Subversion
  • Foreign Interference in Hong Kong activities.
  • Terrorism

He also stated that to achieve the proposed objectives, the new law would provide for the establishment of national security organisations in Hong Kong in order to “improve the enforcement mechanisms for safeguarding national security.”[4] The legislation would surpass the Hong Kong Legislature, and not only imperil the preferential trade status enjoyed by the region but also threaten the civil liberties of the Hong Kong citizens. In the wake of the escalated pro-democracy protests last year, and failed attempt at pushing the extradition bill, such an unprecedented move insinuates at Beijing’s aim to throttle the movement once and for all.

Position under the Basic Law

Article 23 of the Basic Law, the territory’s mini-constitution, specifically states that laws prohibiting treason, secession, foreign political organizations conducting political activities in the region, etc. shall be enacted by the Hong Kong Special Administrative Region “on its own.” After Hong Kong Legislature’s crushed attempt to bring the law in 2003.[5] Beijing decided to take the matter in its own hands. But, is it justified under the law? The answer is No. Article 23 not only imposes an obligation on the city’s legislature to enact such a law but is also indicative of the exclusive authority to do so, which, therefore, questions China’s authority to legislate on the subject.  

Hong Kong has a long-cherished Rule of Law in place that would suffer a huge setback with the implementation of the law. Article 18 of the Basic Law explicitly prohibits Beijing from applying national laws in the region, exempting the laws listed in the Annex III of the Basic Law, which shall be confined to those “relating to defense and foreign affairs” and other matters “outside the limits of the autonomy of the region”.[6] It remains far from clear how widely these words could be interpreted to include national security laws in their ambit. The proposed law has become the first National law with criminal provisions to be applied in the region, which raises concerns over China’s commitment towards the protection of the rights and autonomy guaranteed to the people of Hong Kong. 

A major concern that the legislation raises is the setting up of security enforcement institutions in the city. Article 22 prohibits setting up of Central People’s Government’s departments in the city.

Sino-British Joint Declaration of 1984 and the International Rule of Law

It is pertinent to note that the commitment of the Chinese Government towards the Sino- British Joint Declaration has been subjected to speculations in numerous instances, including when the Chinese Foreign Ministry stated that the Treaty “no longer had any practical significance.[7] The ‘high degree of autonomy’ promised to the region under the Declaration is deeply undermined with the said law. The following issues remain answered-

  • Whether the Chinese intelligence agencies in Hong Kong will have the authority to carry out enforcement activities.
  • Whether the Standing Committee of the National People’s Congress will have extra powers to interpret the Hong Kong court rulings on National Security. 
  • What is the scope and ambit of the ‘select cases’ that Beijing would have jurisdiction over?

Although the details are still few, the tailor-made security law would be left for interpretation at the behest of Chinese Security Organisations such as the Ministry of State Security, and the People’s Armed Police would endanger the rights to freedom of speech, expression, and free press.

On October 24, 2014, China reaffirmed its status as the ‘Builder of International Rule of Law’.[8] Strengthening the rule of law at the international level involves respect for the norms of international law. The above mentioned law is, therefore, a grave breach of the treaty raising concerns on the protection of the International rule of Law by Beijing. China acceded to the Vienna Convention on the Law of Treaties of 1969; the rule of pacta sunt servanda under Article 26 of the convention requires it to stay bound to the treaty and perform it in good faith.[9] Not only has China recognized Hong Kong’s right to democratization in the Basic Law, Customary International Law also provides for a ‘right to democratization.’ The move will undoubtedly have a severe impact on the ongoing Pro-Democracy Movement in the region. 

Conclusion

The people’s Republic of China must honor its commitment to the Sino-British Declaration and not interfere with the Rule of Law in Hong Kong. The fate of the pro-democracy movement in Hong Kong is now unknown, and bringing a tailor-made national security law contradicting the Basic Law not only jeopardizes the economic status and pro-democracy Movement in Hong Kong but also imperils Beijing’s status at the international level. Beijing must, therefore, review its move, which is gravely inimical to the International Rule of Law. 


Ekta Garg is a third year student from Army Institute of Law, Mohali.


[1]Kate Mayberry, ‘There’s never an endgame’: Hong Kong after a year of protest, Aljazeera, (June 16, 2020),  https://www.aljazeera.com/indepth/features/game-hong-kong-year-protest-200615104936779.html.

[2]Lily Kuo, A history of resistance: Key dates in Hong Kong’s Battle with China, The Guardian, (May 27, 12:53 BST), https://www.theguardian.com/world/2020/may/27/a-history-of-resistance-key-dates-in-hong-kongs-battle-with-china.

[3]Tony Cheung and Kimmy Chung, Two Sessions 2020: new law will ‘prevent, frustrate and punish’ acts in Hong Kong that threatens national security, top official says, South China Morning Post, (May 22, 2020, 02:52 pm), https://www.scmp.com/news/hong-kong/politics/article/3085617/two-sessions-2020-national-security-law-hong-kong-will.

[4]Id.

[5]Elson Tong, Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 National Security Bill, Hong Kong Free Press, (February 17, 2018, 22:30), https://hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/.

[6]Basic Law, Art. 18.

[7]“China says Sino British Joint Declaration on Hong Kong no longer has meaning, Reuters, (June 30, 2017, 4:51 pm), https://www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1

[8]Full text of Chinese FM’s signed article on Int’l Rule of Law(2), Xinhua, (October 24, 2014, 18:21), http://en.people.cn/n/2014/1024/c90883-8799769-2.html.

[9]Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, 1155 UNTS 331.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.