Indraprastha Law Review

Indraprastha Law Review https://indraprasthalawreview.in

Winter 2020: Volume 1, Issue 2

eJournal of University School of Law and Legal Studies

University School of Law & Legal Studies

Guru Gobind Singh Indraprastha University

Dwarka, Sector 16C, New Delhi, 110078 - India

www.ipu.ac.in

https://indraprasthalawreview.in/

http://www.ipu.ac.in/

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E-JOURNAL PARTICULARS

TITLE Indraprastha Law Review: E-Journal

of University School of Law and Legal Studies

FREQUENCY Biannual

ISSN Applied / In-Process

PUBLISHER University School of Law and Legal Studies

GGS IP University, New Delhi – India

EDITOR IN CHIEF Dr. Amar Pal Singh

Dean and Professor of Law

EDITORS Dr. Gurujit Singh – Assistant Professor of Law

Dr. Neelu Mehra - Assistant Professor of Law

Dr. Zubair A. Khan - Assistant Professor of Law

COPYRIGHT University School of Law and Legal Studies,

GGS IP University, New Delhi – India

STARTING YEAR 2020

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Indraprastha Law Review

Winter 2020: Volume. 1; Issue. 2 Published by:

University School of Law & Legal Studies,


Table of Contents

Sr. no. Details of Article & Author Page no.

1. Article Sexual Privacy and Autonomy in India within the Constitutional Premise: Manifestations and Implication

6 - 18

Author Dr. Ashutosh Hajela

2. Article The United Nations Declaration on The Rights of Indigenous

Peoples vis-a-vis The Sixth Schedule of The Constitution of India: A Study on Tribal Right to Self-Governance

19 - 31

Author Angel H. Syiem

3. Article AI-Driven Approaches to Clinical Treatment of Mental Health

32 - 44 Author Kshitij Gupta, Ph.D.

4. Article Navigating Death Penalty for Sexual Offences via Recent

State Amendments

45 - 60

Author Adv. Devesh Singh Tomar

5. Article Ordinances In India: Administrative Necessity or A Political Tool?

61 - 72 Author Dr. Shilpi Sharma

6. Article Protecting the Aboriginals of Jammu & Kashmir - An

Exploratory Study of the Tribal Quest for Settlement Through the Roshni Act and Forest Rights Act

73 - 81 Author Romit Nandan Sahai

7. Article Election Manifestos in India: Beyond Election Campaigns 82 - 95

Author Ragini Kanungo

8. Article How Should A ‘Performance’ be Defined? A Comprehensive Study on Definitional Intricacies of Performers’ Right

96 - 120 Author Abhinav Goswami

9. Article Analysing the Ethical Aspect of Genetic Modification of

Livestock in India

121 - 134

Author Adv. Rahul D. Gangurde & Sanjana Bharadwaj

10. Article The Role of Prosecution in the Criminal Justice System in India: An Analytical Audit

135 - 149

Author Dr. Mudasir Bhat & Dr. Mehraj Ud Din Mir

11. Article Observational Skills and Nonverbal Discourse in The

Contemporary Courtroom

150 - 167

Author Shriraj Dusane

12. Legislative

Comment

Handle with Care: Fragility of Special Marriage Act in

Interfaith And Inter-caste Marriages

168 - 177 Author Achintya Anita Gurumurthy

13. Legislative Comment

Draft Lakshadweep Animal Preservation Regulation, 2021: Will it stand the test?

178 - 183 Author Deepayan Malviya

Indraprastha Law Review Winter 2020: Vol. 1: Issue 2

eJournal of University School of Law & Legal Studies

Sexual Privacy and Autonomy in India within the Constitutional Premise:

Manifestations and Implications

Dr. Ashutosh Hajela

Abstract

The Supreme Court of India has daringly created the right to privacy as an inherent attribute of the

personal liberty of an individual springing from within Article 21 of the Indian Constitution. Privacy

happens to be of an extremely wide connotation, encompassing within its fold innumerable liberties

which one may like to enjoy without unnecessary state interference. Sexual orientations, preferences and

practices falls within the realm of the private life of the individuals and owing to the fact of the existence

of a fundamental right to privacy, individuals are supposed to be left free within their domain. The

Indian society is quite a conservationist when it comes to exercising and pursuing sexual liberty and sex.

Here, it is deemed to be an activity happening only within the ties of marriage between the spouses and

that too in the ‘order of nature’. It is however, pertinent that the individuals of such a society, if given a

choice or a right to break the shackles of such sexual rigors may well assert their sexual orientations and

preferences in any manner that suits both the parties involved, with consent. If that happens, the society

is bound to witness ‘deterioration’ as far as its inherent morality and values are concerned; this is likely

to affect the interpersonal relations as well as the marital relations between the spouses. The implication

of the judicial birth of the right to privacy has been manifest in the apex court decriminalizing carnal

intercourse between consenting adults against the order of nature as well as in decriminalizing

consensual sexual relations between people outside the marriage, thereby, establishing an inherent right

of sexual privacy and autonomy. The trend as has been currently witnessed goes against the sentiments

of the Indian society and is bound to create ripples, therein and cause broken relations in the long run

all in the name of sexual prerogatives. As far as the enforceability of such a right is concerned, it is

practically not possible to guarantee the right to sexual privacy to the individuals and it is furthermore

bound to create claims of varying degrees resulting in unnecessary controversies and litigations.

CITATION: Indraprastha Law Review, Vol. 1: Iss. 2, Jul. 2021, pp. 6-18. New Delhi - India.

Part I

Right to Privacy: Every citizen in India is guaranteed1 the right to life and personal liberty as a

fundamental right under the auspices of the Constitution of India. The entitlement has been subject

to continual expansions by the Constitutional Courts to make the right dynamic, meaningful and

effective with the contemporary changes in the society. The Supreme Court of India has infused

life and spirit in the allied contours of life and personal liberty through several of its rulings with

that in Justice K.S. Puttaswamy (Retd.) v Union of India2 is one of the most prominent feathers in

the cap. Herein, the apex court has endorsed the entitlement of an individual to a private space

Dr. Ashutosh Hajela, Associate Dean & Associate Professor, School of Law, Indore, Narsee Monjee Institute of

Management Studies (Deemed to be University) Mumbai - India. 1 The Constitution of India, art. 32. 2 AIR 2017 SC 4161.

6



around him in several matters including personal intimacies as well as sexual orientation, holding

privacy to be a constitutionally protected right under Article 21 of the Constitution3. It has

injuncted any invasion of privacy of an individual without crossing the three-fold threshold of

firstly the existence of a law to do so, secondly, the purpose of the state is causing the violation of

privacy and lastly, a rational nexus between such purpose and the means adopted by the state to

achieve them.

Privacy and Sexual Autonomy: The apex court, after judicially endorsing the inherent right of

privacy as a constitutionally protected and fundamental right has gone ahead to materialize it by

granting sexual autonomy to the individuals of the age of consent4 in the realm of consensual

sexual affairs including extramarital affairs5 and homosexual orientations.6 The stage has, thereby

been set to permit substantive leeway as far as the personal choices and preferences of the

individuals in matters of sexual orientation are concerned in substantive defiance of the prevalent

social norms or taboos. The State owing to the privacy jurisprudence has been mandated to keep

itself distant from any sort of policing in the personal and private realm of the individuals. It,

however, needs to be critically evaluated whether the Indian society is ready and responsive to

welcome the birth of this new right and to further embrace the other ‘rights’ that would emerge

out of that by necessary implication.

It is pertinent to note that the privacy jurisprudence evolved in India at a gradual pace over the

years from an alleged intrusion into privacy in the year 1954 by the state action of search and

seizure of the records of a company7 to eventually the enunciation of the right to sexual privacy as

a fundamental right in a matter pertaining to the validity of Aadhar cards in the year 2017, thereby

traversing huge contours in the scope of privacy. The apex court has attended to variant causes of

action viz., police surveillance, domiciliary visits, phone tapping, etc., throughout these years and

3The Constitution of India, art. 21. 4 The Indian Penal Code, 1860 (Act 45 of 1860), s.375. 5 Joseph Shine v Union of India 2018 SCC Online SC 1676. 6 Navtej Singh Johar and Others v Union of India 2018 SCC Online SC 1350. 7 M P Sharma v Satish Chandra, District Magistrate, Delhi (1954) SCR 1077

7



thus, allegedly infringing the privacy of persons in question before finally endorsing claim to

privacy as a fundamental right springing from Article 21 of the Constitution of India.

SC Ruling in Justice K.S. Puttaswamy (Retd.) v Union of India: The apex court, through its

ruling in Justice K.S. Puttaswamy (Retd.) v Union of India8 has reinforced the right to privacy to

be a constitutionally protected right. The significance of apex court’s judgement is manifest in

privacy jurisprudence since it has dwelt upon various aspects of the right as enumerated underneath

in absolutely clear and unequivocal terms.

1) Constitutional Backing: Privacy has been held to be an intrinsic element of the right to

life and personal liberty under Article 21 of the Constitution of India and as a constitutional

value9 that stands embodied in the fundamental freedoms enshrined in Part III of the

Constitution.10 Privacy has been declared to be a necessary condition precedent to the

enjoyment of any of the guarantees in Part III. It has been clarified that the right to privacy

may be situated not only in Article 21 but also simultaneously in any of the other guarantees

in Part. III, holding Articles 19(1), 20(3), 25, 28, and 29 all to be rights that help up in

making the exercise of privacy meaningful.11

2) Essential Attribute of Privacy: The Court has elaborated an essential ingredient of

privacy of an individual. The Court has ruled that privacy connotes the effective guarantee

of internal freedom in which to think.12 It has been held that the various “thoughts and

behavioural patterns which are intimate to an individual are entitled to a zone of privacy

where one is free of social expectations.” 13 It has been clarified that in such a zone of

privacy, an individual is not to be judged by others. It has been held that privacy happens

to be such a virtue which “enables individuals to preserve their beliefs, thoughts,

expressions, ideas, ideologies, preferences and choices against societal demands of

homogeneity.” 14 The Court has ruled that privacy is an “intrinsic recognition of

8 Supra note 2. 9 A.A. Maudidi, Human Rights in Islam 27 (1982). 10 Justice K.S. Puttaswamy (Retd.) v Union of India AIR 2017 SC 4161, Para 183 at 4312. 11 Supra note 10 at 4345. 12 Id. at 4341. 13 Id See Para 168. 14 Id.

8



heterogeneity of the right of the individual to stand against the tide of conformity in

creating a zone of solitude.” 15 The court has gone ahead to categorically emphasize that

the “intersection between one’s mental integrity and privacy entitles the individual to

freedom of thought, the freedom to believe in what is right and the freedom of self-

determination.”16 It has been reiterated by the court that “Privacy at a subjective level is a

reflection of those areas where individual desires to be let alone.” 17

3) Scope of Privacy: The Bench has ruled that “Privacy at a descriptive level postulates a

bundle of entitlements and interests which lie at the foundation of ordered liberty.”18 It has

been said to “include at its core the preservation of personal intimacies, the sanctity of

family life, marriage, procreation, the home and sexual orientation. Personal choices

governing a way of life are intrinsic to privacy.”19

4) The extent of Right: The Court, while commenting upon the protection to the right to

privacy has categorically ruled that “while the legitimate expectation of privacy may vary

from the intimate zone to the private zone and from the private to the public arenas privacy

is not lost or surrendered merely because the individual is in a public space.”20

5) State Obligation: The court, while delineating the role of the state in

recognizing/protecting the right to privacy has ruled that privacy contains positive as well

as negative content. The negative content, according to the court, “restrains the state from

committing an intrusion upon the life and personal liberty of a citizen.” 21 On the other

hand, its positive content imposes an “obligation on the state to take all necessary measures

to protect the privacy of the individual.”22 As far as the State’s power of imposing restraints

on the privacy of individuals is concerned, it has been laid down that there must be a law

in existence to impose restrictions, a legitimate state aims behind such law and then means

15 Id. 16 Id. at 4306. 17 Id. at 4307 18 Id at 4315. 19 Id at 4315. 20 Id at 4315 21 Id at 4315. 22 Id at 4315.

9



which are adopted by the legislature must be proportional to the object and needs to be

sought to be fulfilled by law.23

It is thus, the Supreme Court has crafted the privacy law for India in the changing perspective of

contemporary times. It has created a ‘personal space’ around the individuals to think, decide and

act in any manner that suits them without being bothered about the societal ideal of homogeneity

but of course, subject to certain riders. It has allowed the individual to remain ‘alone’ and not be

bothered about any third-party interventions (including unwarranted state interventions as well) in

matters personal and private to him.

Part II

Implications of Privacy Rights in India: It is humbly submitted that the verdict has created a

‘blanket’ permission to the individuals and that too like a fundamental right to follow their

‘instinct’ and ‘impulse’ in ‘private’ matters which is bound to create a lot of new demands from

the citizenry. It is further submitted that such an endorsement of a privacy claim when stretched to

sexual autonomy is all the more bound to create claims which may run contrary to cultural, societal

and other norms. It is thus, that the declaration of the “right to privacy” as a fundamental right is

set with formidable difficulties in the practical go. Anyhow, the judgment has been hailed in

privacy jurisprudence in various quarters. The direct impact of this ruling has been witnessed in a

series of subsequent rulings delivered by the apex court.

SC Ruling in Navtej Singh Johar v Union of India: It is pertinent to note that soon after the

privacy verdict, the apex court came up with its ruling in Navtej Singh Johar v Union of India24

where writ petitions had been filed for seeking a declaration that the ‘right to sexuality’ and ‘right

to choose of a sexual partner’ was a part of ‘life’ guaranteed under Article 21 of the Indian

Constitution. It was also one of the contentions that Section 377 of the Indian Penal Code, 1860

did have a ‘chilling effect on the freedom of speech and expression under Article 19(1)(a) of the

Constitution of India of all including the persons belonging to LGBT Community since their

23 Id at 4311. 24 2018 SCC Online SC 1350.

10


25 Ibid, Per Justice Dipak Misra, CJI Para 230/231. 26 Id at 478.


expression of their sexual identity and orientation gets hampered. The Bench did come up with

several findings of significant value in the light of the right to privacy.

Liberty to pursue sexual variances: The court has provided a leeway to the consenting

individuals to indulge in sex in a manner that goes as per their choice. Thereby, diffusing the

dichotomy between ‘sex as per the order of nature’ and ‘sex against the order of nature’. The Court

has specifically ruled that

“With the passage of time and evolution of the society, procreation is not the only reason

for which people choose to come together, have live-in relationships, perform coitus or

even marry. It is the freedom of choice of two consenting adults to perform sex for

procreation or otherwise and if their choice is that of later, it cannot be said to be against

the order of nature. Sex, if performed differently as per the choice of consenting adults,

does not per se make it against the order of nature.”25

The Court has elaborately commented upon the nature and scope of Sexual Liberty that ought to

be there with every individual. It has been stated that

“An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather

be viewed as fluid, granting the individual the freedom to ascertain her desires and

proclivities. The self-determination of sexual orientation is an exercise of autonomy.

Sexuality cannot be construed as something the State has the prerogative to legitimize only

in the form of rigid marital procreational sex. The Constitution protects the fluidities of

sexual experience. It leaves it to the consenting adults to find fulfilment in their relationship

in a diversity of cultures, among plural ways of life and in infinite shades of love and

longing.”26

Constitutionality of Section 377, I.P.C: The Court has ruled out any infirmity in a judgment

delivered by the Delhi High Court whereby it had decriminalized consensual sexual relationship

between consenting adults and has in effect restored that order. It has declared that “Section 377

11


28 Navtej Singh Johar v Union of India 2018 SCC Online SC 1350. 29 Id at Para 468.


of IPC, so far as it penalizes any consensual relationship between two adults, be it homosexuals

(man and man), heterosexuals (man and a woman) or lesbians (woman and a woman) cannot be

regarded as constitutional.”27

Privacy, Self Determination & Sexual Orientation: The Court has read the faculty of

determination of sexual orientation to be necessarily residing within the realm of individual’s

privacy. It has categorically ruled that

“Within the compartment of privacy, individual autonomy has a significant space.

Autonomy is individualistic. It is expressive of self-determination and such self-

determination includes sexual orientation and declaration of sexual identity. Such

orientation or choice that reflects an individual ‘s autonomy is innate to him/her. It is an

inalienable part of his/her identity. The said identity under the constitutional scheme does

not accept any interference as long as its expression is not against decency or morality.28

It is thus , that a right of Sexual Privacy has been created by the Supreme Court of India out of

the right to privacy earlier created and endorsed by it. The Court has ruled that such a right

happens to be of the nature of a natural right that requires protection. It has been said that

“It is imperative to widen the scope of the right to privacy to incorporate a right to ‘sexual

privacy. Emanating from the inalienable right to privacy, the right to sexual privacy must

be granted the sanctity of a natural right and be protected under the Constitution as

fundamental to liberty and as a soulmate of dignity.”29

Obligations of the State: The Supreme Court has ruled that the recognition of the right of self-

determination with the individuals pertaining to sexual autonomy needs to be guarded by the State.

It has ruled that “Sexual orientation implies negative and positive obligations on the State. It not

27 Id,267/268.

12


32 2018 SC Online SC 1676.


only requires the State not to discriminate but also calls for the State to recognize rights which

bring true fulfilment to a same-sex relationship.”30

It is thus, that there has been an express recognition of the individual’s right to exercise sexual

autonomy as encompassed within the right to privacy which, in turn springs from the right to life

and personal liberty envisioned under the Constitution of India. There now happens to be no

reservation over one's indulgence in carnal intercourse against the “order of nature” with any man

or woman with his/her consent. It has also been ruled by the Court that the State cannot

circumscribe sex into a typical-rigid marital procreational sex and must therefore let the individual

pursue his course of action which suits and appeals to him. It is thus, that one is now free to move

out of the marriage (marital sex) and have sex with either a male or a female with his/her consent

going with ‘any’ order of nature, the same being his/her prerogative.

It is humbly submitted at this juncture that the contemporary era is witnessing a rights’-based

jurisprudence whereby claims of certain people on certain issues get ripened into judicially

enforceable or constitutionally protected rights which development has far-reaching and

unpredictable implications. Earlier, if I, as a married person, had a desire to indulge in carnal

intercourse with another consenting friend of mine of the same sex31. I would have either not

pursued it or would have pursued it undercover due to probably the presence of a deterrent law.

However, now with the evolution and expansion of privacy rights, my mindset and psychology are

bound to change as far as my desire(s) are concerned.

SC Ruling in Joseph Shine v Union of India: The implication of endorsement of privacy rights

by the apex court has come to be seen again in Joseph Shine v Union of India.32 The Court has

endorsed the fact that the jurisprudential trend started by the apex court in the realm of privacy has

to be taken into account while dealing with the issue of adultery. The Court has categorically

declared in its ruling that “With the societal changes and more so when the rights are expanded by

the Court in respect of certain aspects having regard to the reflective perception of the organic and

30 Id at Para 561.6/561.7. 31 Adulterous relationship shall be covered in the paper, distinctively, at a later stage.

13



living Constitution, it is not apposite to have a flexible stand on the foundation that the concept of

certainty of law should be allowed to prevail and govern.”33 The court has categorically stated that

any attempt to invade the privacy of an individual must satisfy the three-layered requisites as laid

down by it in K.S. Puttaswamy34 viz., legality, need and proportionality between the object of the

law and the means adopted by the state to achieve that.35

It is pertinent to note that the Supreme Court in the aforesaid matter has declared36 Section 49737

of the Indian Penal Code to be unconstitutional, finding it to be violative of Articles 14, 15, and

21 of the Indian Constitution. Additionally, the court has also declared Section 198(2) of the Code

of Criminal Procedure, in its application to the offense of adultery to be unconstitutional38. The

Court has pressed, between the available options for criminalizing39 or decriminalizing the act of

adultery, the latter one, believing that “the autonomy of the individual to make his or her choices

concerning his/her sexuality in the most intimate spaces of life and should be protected from public

censure through criminal sanction.”40 The response of the Court comes emphatically with total

disregard of the Malimath Committee findings and report41 as well as the 42nd Report of the Law

Commission of India42 along with its ruling in Sowmithri Vishnu43, speaking of retention of

criminality attached to the section in question as well as attaching the element of culpability to the

wife too in the adulterous relation. The Court has come down upon the unwarranted role of the

State in such matters where the individual autonomy to pursue personal choices ought to prevail,44

holding that intervention of the state armed with penal powers may be justified45 only when the

33 Id, 34 Supra note 8. 35 Supra note 33, Para 306. 36 Id, Para 313. 37 Section 497, Indian Penal Code, 1860. 38 Sowmithri Vishnu, V. Rewathi and W. Kalyani. 39 One view of dealing with adultery is that “It violates the sanctity of marriage and breaks the right of a spouse to

marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not

only to the spouses of the adulterer and the adulteress, it impacts the growth and well-being of the children, the family

and society in general and therefore must be subject to penal consequences.” See Para 307 40 Supra note 32, Para 307. 41 March, 2003. 42 June, 1971. 43 Sowmithri Vishnu as cited in Joseph Shine, at Para 17. 44 Supra note 32. 45 Id at Para 310.

14



society tends to be affected by the conduct in question. It is to be noted that the Court, nonetheless,

without any reservation, did hold sexual infidelity to be morally wrong.46

Applying the findings of the apex court in Navtej Singh in the space of sexual autonomy, the room

is set to grant complete liberty to consenting adults of any societal positioning47 in pursuing sex;

It was categorically stated therein that

“The sexual autonomy of an individual to choose his/her sexual partner is an important

pillar and an in-segregable facet of individual liberty. When the liberty of even a single

person of the society is smothered under some vague and archival stipulation that it is

against the order of nature or under the perception that the majority population is peeved

when such an individual exercise his/her liberty even though the exercise of such liberty is

within the confines of his/her private space, then the signature of life melts and living

becomes a bare subsistence and resultantly, the fundamental right of liberty of such an

individual is abridged.”48

Access to Pornography in Private after the creation of Right to Privacy: In the realm of privacy

Jurisprudence, the State is seen to have come up with a stand that appears opposed to the spirit of

privacy as created and sustained by the active Indian Judiciary. It is to be seen that the government

of the day has, through policy orientations, as well as because of judicial decision(s), caused

substantive restraints upon an individual’s access (in private) to sexually explicit content available

online through various sites on the internet, thereby, intruding into his sphere of life. The state,

somehow feels justified to intrude in the personal choice of the people in question by causing a

ban to be imposed49 upon multiple websites that have been exhibiting pornographic material. It is

manifest that the action of the State has resulted in curtailing an individual’s choice of enjoying

access to something (in private) that was deemed to be pleasure-giving without triggering any

nuisance to the others. The dual perception of the state in the arena of private space of the

46 Id at Para 309. 47 Inclusive of Incestuous relations, too. 48 Justice Dipak Misra in Navtej Singh Johar as cited in Para 230, Joseph Shine. 49 In Re In the matter of, Incidence of Gang Rape in a Boarding School, situated in Bhauwala, District Dehradun v.

State of Uttarakhand and others. Writ Petition (PIL) No. 158 of 2018 before Uttarakhand High Court.

15



individuals when it comes to sexual orientation is not palatable at all and needs to be addressed

with precision. The action of the government virtually defies the observation of the apex court in

Joseph Shine in which it was emphatically stated that “the element of public censure, visiting the

delinquent with penal consequences, and overriding individual rights, would be justified only

when the society is directly impacted by such conduct. In fact, a much stronger justification is

required where an offense is punishable with imprisonment.”50 It is pertinent to note that it was

further held in the matter that the Court needed to “follow the minimalist approach in the

criminalization of offenses, keeping in view the respect for the autonomy of the individual to make

his/her personal choices.”51 The State is, seen hopping un-guided from a ‘liberal’ stand,

advocating for individual freedoms to that of a ‘conservationist’ stand and supporting the state’s

coercive powers to curb individual freedoms in different phases of opinion-making related to the

same issue of sexual choices and autonomy.

It is additionally significant to note that the apex court speaking through its nine Judge Bench in

Justice K.S. Puttaswamy (Retd.) v Union of India had clearly laid down the contours of privacy of

an individual stating that

“Privacy is concomitant of right of an individual to exercise control over his or her

personality. Privacy is [a] constitutionally protected right which emerges primarily from

guarantee of life and personal liberty under Article 21 of the Constitution...Privacy includes

at its core preservation of personal intimacies, the sanctity of family life, marriage,

procreation, home, and sexual orientation. privacy safeguards individual autonomy and

recognizes the ability of an individual to control vital aspects of his or her life. Personal

choices governing the way of life are intrinsic to privacy.”52

It was further held that “An invasion of life or personal liberty must meet the three-fold

requirement of legality which postulates the existence of law, need and defined in terms of

legitimate state aim; and proportionality which ensures rational nexus between objects and means

50 Supra note 32. 51 Id at Para 311. 52 Supra note 2.

16



adopted to achieve then. ”53 The Indian Supreme Court has expounded the privacy rights under

the influence of American Jurisprudence, the philosophy and whereof lies in the protection of

‘people’ and not ‘places. It is humbly submitted that in the case of state-imposed riders on access

to pornography, since the access is being made in the private realm, the question of actionable

injury to others does not at all arise. Further, if it is ‘presumed’ that the impact of access to

pornography (in the private realm) may corrupt the minds of people with such access and which

in turn may trigger criminal (related to sex-oriented crimes) tendencies in those people, it is

submitted that the same probability is a bit too far stretched.

Utilitarianism of Sexual Privacy in India! A Myth or Reality: It is thus, the stage is set for the

testing of the utility of the right to sexual autonomy and privacy in the Indian subsoil. It is pertinent

to acknowledge that the Indian State54, throughout, has been particularly conscious of the public

morality and sensitivities of the public, by and large. It needs to be seen whether the State must

enter into the private space around the individuals and further whether the State can actively and

indiscriminately protect the space around the individuals in terms of autonomy related to sexual

orientations and allied matters. The sensitivity of the society and citizenry in matters related to the

sanctity of marital ties as well as the reluctance of the Indian society to be ‘liberated’ in the name

of sexual activities cannot and should not be ignored or discarded, all in the name of personal

liberty. Additionally, the act of imitating a different culture and applying the same blindly to

another culture, without appreciating the fabric of the society in question might tend to be reflected

as a progressive stand but is sure to receive a cold response from within the society. It is humbly

reiterated that the implementation of the right to privacy, having been carved within the premise

53 Id. 54 The Indian State has, fundamentally, been quite conservationist while dealing with liberties related to expressions

in context of sexual desires and interests while direct or remote. E.g., The Indecent Representation of Women

(Prohibition) Act, 1986 under Section 2 c. is concerned about any indecent representation of women with a tendency

“to deprave, corrupt or injure the public morality or morals.”

Similarly, under Section 18 (c), the Sea Customs Act, 1878, there has been imposed a prohibition on bringing “any

obscene book, pamphlet, paper, drawing; painting, representation, figure or article” within India through land or sea.

Further, Section 3 (c), the Dramatic Performances Act, 1876 confers powers upon the government to prohibit “any

play, pantomime or other drama…likely to deprave and corrupt persons present at the performance.”

Also, the Cinematograph Act, 1956 through Section 5 B talks of non-certification of films for public exhibition if they go against decency or morality of the society.

17



of “personal liberty”, is set with formidable difficulties. It is felt that the earlier stand of the

Supreme Court of India in not upgrading privacy to be an actionable right within the contours of

Article 21 was the right stand, wherein the Court had been dealing with issues at hand piecemeal

and on case-to-case basis viz., the issue of domiciliary visit or phone tapping, etc., without actually

creating a determinative right like the current one. It has to be sincerely acknowledged that If the

State finds it not to be in a position to offer a guarantee to the enjoyment of the right of privacy in

sexual matters, the very creation of such a right under the auspices of personal liberty within

Article 21 of the Indian Constitution stands questionable since there lies no point in merely creating

a right on paper without having the means and will to enforce it and effectuate the same.

18



The United Nations Declaration on The Rights of Indigenous Peoples

vis-a-vis The Sixth Schedule of The Constitution of India: A Study on

Tribal Right to Self-Governance

Angel H. Syiem

Abstract

The Systemic discrimination faced by the Indigenous Populations around the world has influenced

the United Nations to take standard settings on this vulnerable section of the society seriously. The

pace, however, is slow with no legally binding instrument passed by the organization. At present the

ILO Convention of 169 and the United Nations Declaration on the Rights of Indigenous Peoples,

2007 are the legal instrument on the subject which recognizes some of the basic human rights of the

community. One of the basic rights that is observed in both instruments is the right to self-

governance. The idea is for the community to have their way of living and maintain their culture,

customs, practices, and traditions, and governed by and for themselves. In India, from the time the

drafting of the Indian Constitution began, the issue of administration of tribal community was

discussed. This led to the incorporation of the Fifth and Sixth Schedule of the Indian Constitution.

The latter in particular provides for a higher level of autonomy for the hill tribes of north-east India

with the power to legislate, adjudicate, etc. through the constitution of the Autonomous District

Council. Hence, the idea of self-governance that is recognized in a relatively contemporary

international legal instrument such as the UNDRIP was already promulgated in a country like ours

from the very beginning of independent governance in the form of the Sixth Schedule of the Indian

Constitution. The present study will make a comparison between the UNDRIP and the Sixth

Schedule with a special focus on the right to self-governance.


I. Introduction

The status of Indigenous Peoples is distinct and important in the sense that they observe unique

customs, beliefs, and culture and have a special relationship with nature. They are also

characterized by distinct social, economic, or political systems. Preserving their traditional

ways has often been seen to be the focus of several governments but they however experience

systemic discrimination collectively or individually. Such discrimination is seen to be practiced

in different forms, such as neglect, indifference, poverty, lack of legal and constitutional rights,

etc. José R. Martinez Cobo, who was the United Nations Special Rapporteur of the Sub

commission on the Prevention of Discrimination and Protection of Minorities, in the year 1982,

came up with a study which focused on the systemic discrimination faced by Indigenous

peoples worldwide.1 In response to the findings, The UN Economic and Social Council

(ECOSOC) created the Working Group on Indigenous Populations (WGIP) to focus on issues

relating to the Indigenous Peoples worldwide. Its role was to make recommendations to the

Research Scholar at National Law School of India University, Bengaluru and Assistant Professor at Department

of Law, Tezpur University, Assam - India. 1Commission on Human Rights, Study of the Problem of Discrimination against Indigenous Populations, UN Doc

E/CN.4/Sub.2/1982/2 (August 10, 1982).

19



Commission of Human Rights through the Sub commission. After a long process, the United

Nations Development on the Rights of Indigenous Peoples (UNDRIP) was adopted in the year

2007.

In India, when we got our independence, one of the major tasks before the drafters of the Indian

Constitution was the administration of tribal areas. It was clear, through the tribal uprisings and

also the need to not marginalize the community, that India had to continue with providing

protective safeguards. To study the position in such tribal areas and thereby propose a policy

suitable to the community, the Advisory Committee on Fundamental Rights, Minorities and

Tribal and Excluded Areas, set up three sub-committees through which the fifth and sixth

schedule was drafted and incorporated. The Sixth Schedule is considered to be evidence of the

form of integrationist position taken by the Country concerning the Indigenous community.

One that was suggested also by Scholars such as Verrier Elwin. Major considerations,

therefore, on which the draft was prepared and accepted which we now see under the Sixth

Schedule of the Constitution constitutes autonomy, integration, and development.

India is not a signatory to the ILO Conventions on the Rights of the Indigenous Peoples. It has,

however, signed the UNDRIP which was a good initiative. Drawing a relationship between the

UNDRIP and the Sixth Schedule is important to promote and protect the rights of the

Indigenous Peoples of the Country. Also, one of the significant features that were seen in both

the ILO Convention and the UNDRIP is the acceptance of the Indigenous People’s right to

self-governance. The tribal community in India also has a history of self-governance which

was recognized by the British government and was sought to be maintained even after

independence especially for the hill tribes.

The present study will make a comparison between the UNDRIP and the Sixth Schedule with

a special focus on the right to self-governance.

II. Defining Indigenous Peoples

Several communities claim themselves to be indigenous to a particular region. There is a lack

of understanding of the concept of “Indigenous” in several States. The definition in itself is a

very controversial one. Some nations do not accept the indigenous identity of some

20



communities to avoid their obligations for the promotion and protection of the human rights of

the community. Even though there have been definitions by the ILO Conventions and the

World Bank,2 a universally accepted definition of indigenous peoples is still awaiting under

international human rights law. It has always been debated, however, whether a formal and

legal definition of such a diverse and heterogeneous community would at all be desirable.

Because over the years, the community has been subjected to multiple definitions and

classifications that have been imposed by others for them. Hence the community has time and

again stressed their right to self-determination. That is, they have the right to define themselves

rather than someone else defines them. Apart from this, the formal definition would also be

futile because having rigid definitions would not accommodate different circumstances and

characteristics hence limiting the flexibility of applying the legal international instruments to

such communities.

However, as a working definition, the United Nations with the consent of indigenous

representatives, accepted the definition given by Martinez Cobo, according to whom:

“Indigenous communities, peoples and nations are those which, having a historical

continuity with pre-invasion and pre-colonial societies that developed on their

territories, consider themselves distinct from other sectors of the societies now

prevailing in those territories, or parts of them. They form at present non-dominant

sectors of the society and are determined to preserve, develop and transmit to future

generations their ancestral territories, and their ethnic identity, as the basis of their

continued existence as peoples, in accordance with their cultural patterns, social

institutions, and legal systems.”3

Here, as you can see the important elements of the definition. First is historical continuity with

pre-invasion and pre-colonial societies, the community must have existed or stayed in the

region before the invasion. For Example, some Scholars say that in India the community that

has existed in the State before Aryan Invasion is indigenous to the area.4 The second element

is that these communities should be distinct from other sectors of the societies, meaning that

2 World Bank Group, Implementation of Operational Directive 4.20 on Indigenous Peoples: an independent desk

review (English), Report No. 25332 (Jan 10, 2003). 3 Commission on Human Rights, Study of the Problem of Discrimination against Indigenous Populations, UN

Doc E/CN.4/Sub.2/1982/2 (August 10, 1982). 4 Virginius Xaxa, “Tribes as Indigenous People of India” 34 Economic and Political Weekly 3589-3595 (1999).

21



they differ in terms of customs, practices, culture, language, and overall lifestyle. The third

element is that these communities are not dominant sectors in society. Fourthly, they should be

determined to preserve, develop and transmit to future generations their ancestral territories,

and their ethnic identity.

Another definition of Indigenous Peoples is found under Article 1 of the ILO Convention 107.5

According to this definition, Indigenous peoples are “tribal and semi-tribal populations in

independent countries.” This definition divides members of such communities into two

categories: First, that these population’s social and economic conditions are at a less advanced

stage than the other sections of the society. Also, these communities must be regulated either

wholly or partially by their customs and traditions or by-laws or regulations that are special for

them. So, this category can also refer to tribes such as shifting cultivators or nomadic tribes

who may not have historical associations with the particular region. Therefore, according to

this category, it is the backwardness of these communities that prevent them from fully

contributing to the progress of the national community of which they are part. Second, those

who are regarded as indigenous because of their “descent from the populations which inhabited

the country pre-invasion”. As was seen also in Martinez Cobo’s definition, historical

continuity.

Legally, in India we do not use the term ‘Indigenous’, the equivalent to indigenous peoples

have Scheduled Tribes (ST).6 Article 366(25) defines Scheduled Tribes as those tribes or tribal

communities as are deemed Article 342 as Scheduled Tribes which in turn defines the

community as identified by the President as such. Hence, the definition of Scheduled Tribes

here is also very vague. Identification of ST is also not mentioned in the Constitution, that is

the criteria that influence the identification of a particular community as tribal. Based although

on history and practice we find that some characteristics have been attached to a tribal

community, as being primitive, having a distinct culture, are geographically isolated, are shy

of contact with the community at large, and backwardness.7 These characteristics today, do not

5 International Labour Organisation, Convention 107, art. 1. 6 Indigenous and Tribal Populations, 1957 (No 107), para. 4. 7 Government of India, “The Report of the Advisory Committee on the Revision of the Lists of Scheduled Castes

and Scheduled Tribes” (Department of Social Security, 1965).

22



define all tribal communities in the country. Tribal Community in the country not being a

homogenous one.

III. Rights of Indigenous Peoples under International Law: An Analysis

Unlike the protection of other vulnerable groups such as Women, Children, etc., International

Human Rights Law lacks legally binding conventions under the United Nations to protect the

rights of the indigenous peoples. The International Labour Organisation, however, has taken

progressive steps of adopting Conventions for the promotion and protection of the

community’s human rights.

International Bill of Human Rights: Although the International Bill of Human Rights consisting

of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil

and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural

Rights (ICESCR) does not consist within its specific rights concerning the Indigenous Peoples,

one can, however, turn to these documents particularly for their right to self-determination and

right to non-discrimination. A reading of article 3 of the United Nations Declaration on the

Rights of Indigenous Peoples (UNDRIP) shows that it mirrors common article 1 of the ICCPR

and ICESCR. The right to self-determination is central for and is complementary to the

achievement of many other rights of the Indigenous Peoples such as the right to culture and

political rights including the right to participate in decision making8 in matters affecting their

right, amongst others. Also, the UDHR does not specifically provide for the right to self-

determination, even though its preamble explicitly speaks of the colonial experience and how

‘disregard and contempt for human rights have resulted in barbarous acts’, its provisions on

human equality and that all are equal before the law; right against discrimination;9 right to own

property;10 right to take part in the government of his country, directly or through freely chosen

representatives11 are specifically relevant for the Indigenous Peoples.

ILO Convention 107, 1957: After the Second World War, the members of ILO were concerned

with raising labour standards around the world. Along with certain United Nations affiliates

8 The United Nations Declaration on the Rights of Indigenous Peoples, 2007, art. 4. 9 Universal Declaration of Human Right, 1948, art. 7 10 Universal Declaration of Human Rights, 1948, art. 17 11 Universal Declaration of Human Rights, 1948, art. 21

23



and subsidiary organs such as UNESCO, ILO began the process of drafting a convention that

would outline the obligation of states to the Indigenous peoples under their jurisdiction in the

year 1946. This discussion however lasted for several years, 11 to be precise, and later adopted

in the year 1957 as the ILO Convention concerning the Protection and Integration of

Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries, 1957 (No.

107). However, the Convention was not ratified by many states. Nonetheless, it is considered

a milestone for the rights of the community under International law because it was the first

international instrument to have specifically addressed the human rights of the community.

Although most of the provisions focussed on Social, Economic, and Cultural Rights, Article 5

of the Convention also extended political rights. It obligates the government of the state parties

to seek collaboration between the Indigenous peoples and their representatives and also to

provide for an opportunity for the full development of the community and participate in elective

institutions. Part IV of the Convention also recommended vocational training for persons

belonging to the community.

The problem with the document was that at the very beginning it started advocating the

assimilationist goal meaning that they considered the Indigenous peoples as a community that

is lower on the evolutionary scale than the colonizing community. For Example, it describes

the Indigenous Peoples at a less advanced stage than the colonizers. It also suggests that the

process of losing their tribal identity is inevitable. Hence, this instrument at the initial stage

aimed at assimilating the culture of the community with that of the colonizing community. That

was the idea of development under the Convention. This was one of the drawbacks of the treaty.

Amongst others, it also provides for land rights.12 Where it states that the Indigenous peoples

“shall not be removed without their free consent from their habitual territories unless the

Government wants to develop the said territory for the benefit of the community.” This

Convention was then revised in the year 1989 to amend the process from the assimilationist to

the integrationist one. It is therefore replaced by the ILO Convention 169.

The ILO Convention 169: The Convention is today known as the Indigenous and Tribal

Peoples Convention, 1989 (169). It consists of 44 Articles that are organized in 10 categories

12 Indigenous and Tribal Population Convention, 1957, art. 14.1.

24



that outline the minimum standards of the rights of the Indigenous Peoples. Among other

things, it recognizes:

“The aspirations of [Indigenous] peoples to exercise control over their institutions,

ways of life and economic development and to maintain and develop their

identities, languages, and religions, within the framework of the States in which

they live.”13

Hence this Convention sought to give more autonomy to the community, rather than forcing

them to assimilate with the culture of the ones who are “more advanced” so-called. This is

supported by Article 7 which recognizes the right of a community to prioritize their own

developmental needs. According to the Convention, the Governments should uphold these

rights and recognize the community’s unique historical and socio-economic position within the

state and their integral connection to their territories and protects them against displacement. It

also guarantees the right to equal employment opportunities,14 right to health care15 and

education,16 which includes being educated in their languages.17

Currently, this Convention also, like the previous one, does not have enough takers. That is,

only 21 nations have ratified the Convention. One of the reasons for such low acceptance is

considered by a few Scholars as being the inclusion of the Right to Self- Determination under

it. It was through this Convention that for the first time the Right to Self-Determination of the

Indigenous Community was recognized. Such an obligation was not acceptable by many

nations. The nations that have ratified the Convention also have not taken their obligation of

implementing the instrument seriously. Hence, the implementation of the instrument is

observed to be weak amongst the state parties.

Despite its weaknesses, the instrument is celebrated by the Indigenous Peoples. Many leaders

consider it to be an important step towards achieving respect for the human rights of the

community, thereby improving the standards of living, etc. Hence the ILO Convention 107 was

a pioneering instrument but considering its shortcomings the revised instrument is a landmark

13 Indigenous and Tribal Peoples Convention, 1989, Preamble of the Convention. 14 Indigenous and Tribal Peoples Convention, 1989 (169), art. 20-23. 15 Indigenous and Tribal Peoples Convention, 1989 (169), art 25. 16 Indigenous and Tribal Peoples Convention, 1989 (169), art. 27. 17 Indigenous and Tribal Peoples Convention, 1989 (169), art. 28.

25



in the history of Indigenous Peoples’ human rights. The ILO reports on the implementation of

the Convention every five years. It was this Convention that paved the way to the adoption of

the UN Declaration on the Rights of Indigenous Peoples.

The UN Declaration on the Rights of Indigenous Peoples: Although the document is only a

declaration and therefore lacks binding nature, nonetheless the fact that it had come from the

United Nations itself and not through its agents that is the ILO, had a considerable impact and

hence an important step. It was adopted in the year 2007 to enshrine the rights that “constitute

the minimum standards for the survival, dignity, and well-being of the Indigenous peoples of

the world.”18 In the words of the then United Nations Secretary-General Ban Ki-Moon, on the

International Day of the World’s Indigenous People in 2008:

“The Declaration is a visionary step towards addressing the human rights of

indigenous peoples. It sets out a framework on which States can build or re-build

their relationships with indigenous peoples. The result of more than two decades

of negotiations, it provides a momentous opportunity for States and indigenous

peoples to strengthen their relationships, promote reconciliation, and ensure that

the past is not repeated.”19

The UNDRIP is a comprehensive document on the rights of the Indigenous Peoples which

recognizes the right of indigenous peoples both individually as well as a community to enjoy

the fundamental freedoms as enshrined under the UN Charter and the International Human

Rights Laws. Before the UNDRIP, as is understood that the International human rights laws

did not include group or collective rights except for the right to self-determination. This

Declaration however is ground-breaking in this regard.

It declares their right to political, economic, social, and cultural development.20 In matters

relating to their internal and local affairs, the document declares their right to political,

economic, legal, social, and cultural autonomy for their development.21 It also recognizes their

18 United Nations Declaration on the Rights of Indigenous Peoples, 2007, art 43. 19 UNOHCHR, “The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National

Rights Institutions”, available at <https://www.ohchr.org/documents/issues/ipeoples/undripmanualfornhris.pdf>

(last visited on June 10, 2021). 20 United Nations Declaration on the Rights of Indigenous Peoples, 2007, art. 3. 21 United Nations Declaration on the Rights of Indigenous Peoples, 2007, art. 3, 4 & 5.

26

http://www.ohchr.org/documents/issues/ipeoples/undripmanualfornhris.pdf





right to life, liberty, and security including the right against genocide or any other act of

violence.22 Land being of utmost importance for the development and the tribal ways of life,

their right to it and resources which were traditionally owned, occupied or otherwise used or

acquired by the community is recognized by the declaration,23 also making it an obligation of

the states to give legal recognition to such territories.

With regard to their economic social and cultural rights, the Declaration and Convention No.

169 affirms the Indigenous Peoples’ rights to health, education, employment, housing,

sanitation, social security, and an adequate standard of living. It also consists of several

provisions to protect the community’s right to cultural equality which is considered as one of

the most defining characteristics of the community.

IV. Autonomy under the Sixth Schedule of the Indian Constitution

In India, tribal peoples particularly those living in the hills of North-East India were uniquely

administered when compared to the mainland people or people of the plain areas. This

administration was observed right from the colonial period with the legislations24 classifying

the areas into Scheduled Districts, Backward Tracts, Excluded and Partially excluded areas

over the years. After independence, the “philosophy of maintaining status quo and isolation

(under the British policy) was replaced by the policies of development and integration through

a separate Sixth Schedule of the Constitution.”25 The Schedule is the product of the draft first

made by the North-East Frontier (Assam) Tribal and Excluded Areas (also known as the

Bordoloi Sub-Committee) which was the sub-committee of the Advisory Committee on

Fundamental Rights, Minorities and Tribal and Excluded Areas entrusted with the objective of

drafting provisions within the constitution for the promotion and protection of the rights of

tribal people and their administration. Although there were numerous arguments for and

against the draft, it was realized that since the tribal people of the area have their roots in their

own unique culture, integration should take place gradually and not abruptly. Their scarce land

and meagre resources require protection from the people of the plains and there is a need of

22 United Nations Declaration on the Rights of Indigenous Peoples, 2007, art 7. 23 United Nations Declaration on the Rights of Indigenous Peoples, 2007, art. 10, 26 and 27. 24 The Constitution of India, sch. 6. 25 Government of India, “Report of The High-Level Committee on Socio- economic, Health and Educational

Status of Tribal Communities of India” (Ministry of Tribal Affairs, 2014).

27



preserving their social customs. And hence, the Schedule. It was with the objective that the

Schedule would preserve the autonomy, culture, and economic empowerment of the hill tribal

community to ensure the preservation of peace and local self-governance through social,

economic, and political justice, that it was incorporated under the Indian Constitution.

The areas in the state of Assam, Meghalaya, Tripura, and Mizoram that has the majority of the

tribal population are to be identified as ‘autonomous districts’ under Para 1 of the Schedule.26

The administration of the area is done through the District Councils established under Para 2.

It was observed in the case of T. Cajee v. U Jormanik Syiem27 that the “District Council under

the scheme of the Sixth Schedule is both an administrative and a legislative body.” The Council

consists of a total of 30 members which includes 4 members nominated by the Governor and

26 elected based on adult suffrage. Although the issue of whether members should all belong

from the tribal community of the area has been discussed in the court of law28, it was concluded

in the case of Secretary, Executive Committee, North Cachar Hills District Council v. Neithang

Hmar29 that since the District and Regional Councils constituted under the Sixth Schedule “is

a body corporate and therefore, shall have perpetual succession and a common seal and shall

by its name sue and be sued. Therefore, once constituted, it sheds its character of being

composed of only Scheduled tribespeople.” Often termed as a ‘mini constitution’ the vast 21

paragraphs provision includes legislative, judicial, executive, and financial autonomy.

Legislative autonomy

The District Councils are authorized to make laws on matters relating to the areas through Para

3 of the Schedule through which the autonomous nature of the administration was sought.30

The matters on which the District Councils may legislate our lands, forests, canal or

watercourse for agriculture, jhum or other shifting cultivation, village or town committees or

councils, village or town administration, appointment or succession of chiefs or Headmen,

marriage, social customs, etc.

26 The Constitution of India, sch. 1. 27 AIR 1961 SC 276. 28 Upendra Reang v. State of Tripura (1995) 3 Gau LR 307. 29 1973 ALR 312 Gau. 30 Regional Provident Fund Commissioner v. Shillong City Bust Syndicate, AIR 1996 SC 1546.

28



With regard to the applicability of central laws, the President is empowered to issue notification

directing that that legislation will not apply to the autonomous districts in the tribal areas under

the Schedule.

Judicial autonomy

The District councils are empowered to constitute village councils or courts for the

administration of justice for cases where both parties are scheduled tribes. Based on this, the

district councils in these areas have constituted classes of courts to deal with cases of different

categories. Under Para 4 the District Councils are also empowered to make rules for the

constitution and powers and the rules relating to the procedure of such courts.

Executive autonomy

The District Councils may, under para 6, “establish, construct, or manage primary schools,

dispensaries, markets, cattle pounds, ferries, fisheries, roads, road transport and waterways in

the district and may, with the previous approval of the Governor, make regulations for the

regulation and control thereof and, in particular, may prescribe the language and how primary

education shall be imparted in the primary schools in the district.”

Financial autonomy

Through para 7 of the schedule, a district fund is constituted for autonomous districts which

are subject to audit by the Comptroller and Auditor-General, in which all amounts received in

the course of administration are to be credited. The District Council is also authorized to collect

land revenue in respects of all land under its jurisdiction; taxes on professions trades callings

and employment; taxes on animals, vehicles, and boats; taxes on the entry of goods into a

market for sale therein, and tolls on passengers and goods carried in ferries; and taxes for the

maintenance of schools, dispensaries or roads.31

V. The Schedule concerning The Declaration

It is to be noted that India is not a party to the ILO Convention No. 169. However, it did vote

in favour of the Declaration of 2007.

31 The Constitution of India, para. 8 sch. 6.

29



The Sixth Schedule is an effort of achieving the goal of providing autonomy to the tribal

community of the four states while at the same time slowly integrating them with the rest of

the country. An analysis of the Schedule shows that although the United Nations Declaration

on the Rights of Indigenous Peoples is of much recent origin, that is 2007, the latter’s special

feature of the right to self-governance and autonomy finds its place in the former. Therefore,

although India’s position on self-determination is controversial with the reservations it makes

to the common Article of the International Covenant on Civil and Political Rights (ICCPR) and

The International Covenant on Economic, Social and Cultural Rights (ICESCR), some aspects

of self-governance has been accepted for the community to “be able to negotiate their own

liberal political space and to grow according to their genius.”32

Article 18 of the UNDRIP provides that the “Indigenous peoples have the right to participate

in decision-making in matters which would affect their rights, through representatives chosen

by themselves in accordance with their procedures, as well as to maintain and develop their

indigenous decision-making institutions.” With the establishment of District Councils and its

members being the tribal people themselves, to administer issues relating to the tribal

community with legislative, judicial, executive, and financial powers, the sixth schedule

affirms the right to participate in the decision-making of the tribal people of the Sixth Schedule

areas.

As regards education, the UNDRIP provides that “Indigenous peoples have the right to

establish and control their educational systems and institutions providing education in their

languages, in a manner appropriate to their cultural methods of teaching and learning.”33 The

District councils are empowered to establish primary schools in the area that would ensure

education for the children of the community and also being educated in their languages and

learn of their own unique culture and traditions.

The indigenous peoples have the right to maintain their distinct political and legal institution

as per Article 5 of the Declaration which again, through the establishment of the District

32 Patricia Mukhim, “Sixth Schedule and Tribal Autonomy”, The Statesman, July 14, 2013, available at

<https://www.thestatesman.com/supplements/north/sixth-schedule-and-tribal-autonomy-5573.html> (last visited

on June 10, 2021). 33The United Nations Declaration on the Rights of Indigenous Peoples, 2007, art. 14.

30

https://www.thestatesman.com/supplements/north/sixth-schedule-and-tribal-autonomy-5573.html



Councils (which is both an administrative and legislative body) as a political, and courts under

it as a legal institution is fulfilled.

Forced assimilation or destruction of their culture is a violation of the right of the Indigenous

Peoples according to Article 8 of the Declaration. The Sixth Schedule is more of an

integrationist arrangement than an assimilationist one that is taken by the country for the

indigenous community. Also, with the authority given to the district council in legislating on

issues relating to social customs, marriage, and traditions, the preservation of culture and

customs of the community have enhanced.

The Declaration is indeed applicable universally for all indigenous communities, it is however

difficult in a country like India, where the nature of the tribal communities is heterogeneous

and the pace of development and growth varies. Therefore, provisions such as the fifth and

sixth schedules are specific to a region or area.

VI. Conclusion

Therefore, it can be seen that the idea of self-governance that is recognized in a relatively

contemporary international legal instrument such as the UNDRIP was already promulgated in

a country like ours from the very beginning of independent governance in the form of the Sixth

Schedule of the Indian Constitution. The Hill tribe of India are unique in the sense that their

exposure to the plains area and people of the plains was very rare and hence their way of living

when compared to that of the tribal community in the plains was different. Therefore, although

for the administration of the tribal community of the other parts of the country we also have

the Fifth Schedule of the Indian Constitution, the level of autonomy found in the Sixth Schedule

is not seen in the former. The modern set-up under the Indian Constitution for the

administration of the tribal area is highly influenced also by the British administration, where

the British Government chose the policy of isolation in dealing with the tribal community.

Hence the autonomy in governance continued under the Sixth Schedule. The idea is for the

community to have their way of living and maintain their culture, customs, practices, and

traditions, and governed by and for themselves. The implementation of the Schedule however

is not without flaws, which is a subject of another study.

31



AI-DRIVEN APPROACHES TO CLINICAL TREATMENT OF

MENTAL HEALTH

Kshitij Gupta, Ph.D.

ABSTRACT

Although there has been a gradual change over the past two decades in recognition and public

acceptance of the importance of mental health problems, there is a persistent translational gap

between preclinical research and psychiatric treatment. Novel strategies are being implemented to

utilise technology and Artificial Intelligence (AI) to detect, monitor, and treat mental health issues.

The World Health Organisation states that mental health problems affect more than 5% of the

population worldwide, whereas in India, mental health services report estimates that 7.5 percent

Indians suffer from some mental disorder and predicts that by the end of this year roughly 20 per

cent of India will suffer from mental illnesses. According to the numbers, 56 million Indians suffer

from depression and another 38 million Indians suffer from anxiety disorders. The COVID-19

pandemic has upended every facet of our lives, including causing a tectonic shift in where and how

we work. As more people receive the vaccine, workplaces are exploring what the new normal will

look like and how to best support their staff during this transition. The latest interactive technologies

of social robots and virtual reality, powered by AI promises new approaches for clinical treatment

of psychiatric, developmental and cognitive problems. This article highlights AI, computing and

mental health that works towards the development of new, computing based methodologies for

detection, treatment and analysis of mental health issues. Besides providing an extensive overview

of the state-of-art in the domain, the article aims at assisting young researchers, raise awareness of

multidisciplinary opportunities of computing and medical sciences in mental health, and explore the

future of mental health care in-tandem with artificial intelligence in India and share best practices

for how organisations can foster mental health and resilience during the next phase of recovery.

KEYWORD(S): AI Systems; Behavioural Challenges; Mental Health Care; Triage; India


I. INTRODUCTION

A little over a year ago many of us were in our respective office spaces and were sent home

one day and have not been back in over a year; it has been a rapid shift for all of us. The

COVID-19 pandemic has disrupted the Indian workplace in unprecedented ways and has been

a cause of increased anxiety and stress for many employees. Ignoring mental health concerns

can hurt productivity and professional relationships at the bottom line. But many employees

feel uncomfortable sharing their mental health struggles and may be reluctant to get the help

they deserve. When we practice good mental health, it is easier to handle stress and other

problems. Emotional and mental health is important because it is a vital part of your life and

impacts your thoughts, behaviours and emotions. Being healthy emotionally can promote

productivity and effectiveness in activities like work, school or caregiving. It plays an

Ph.D. - M.S. - B.S. - Stanford University (USA), LL.M. Candidate - B.A. LL.B. (New Delhi - India).

Author may be contacted at: [email protected].

32

http://[email protected]/



important part in the health of your relationships, and allows one to adapt to changes in one's

life and cope with adversity. Mobile technology applications, such as smartphones and

smartwatches, are increasingly being adopted as mental health interventions to increase

treatment and improve mental health outcomes. Inducting AI systems into mental health care

sector provides a robust framework with changing technological, reimbursement and policy

landscape for telehealth and other virtual behavioural health solutions.

In India, the Mental Health Care Act1 came into effect on May 29, 2018. One of the main

reasons for the enactment of the Mental Health Care Act of 2017 is the ratification of United

Nations Convention on the Rights of Persons with Disabilities (UNCRPD) by India in October

2007, as the earlier Act of 1987 was not adequate to protect and promote the human rights of

persons with mental illness. The mental health care in India has come a long way with the

paradigm shift from custodial care of persons with mental illness to the treatment of persons

with psychiatric disorders. Earlier, human rights were completely ignored, hence the new

legislation aligning with the UNCRPD plans for providing care and services under the relief of

providing human rights that means providing care with protection and promotion of human

rights.2 The heart and soul of the Mental Health Care Act, 2017 lies in the chapter five

consisting of sections 18 to 28. For the first time the Act clearly articulates the rights of persons

with mental illness. With the passing of the Act, decriminalising suicide under section 1153

took a landmark paradigm from the earlier state where attempted suicide under section 3094 of

the Indian Penal Code was a punishable offence. However, the point is clear that a person who

is suffering from stress will be presumed to have stress, if the police is able to prove that it is

not because of stress and the reason is something other than stress, then section 309 will be

upheld and will not be completely squashed in such a scenario. Of course, the legislation is

fairly decent one but completely borrowed from the western model where the individual rights

take precedence over the collective rights that means a person with mental illness will decide

about his or her treatment including duration of treatment, type of treatment, advance

1 The Mental Health Care Act, 2017 (Act No. 10 of 2017). 2 Duffy, R.M., Kelly, B.D ,"Concordance of the Indian Mental Healthcare Act 2017 with the World Health

Organization’s Checklist on Mental Health Legislation" 11 IntJ Ment Health Syst (2017). 3 Sneha, V & Madhusudhan, Shivappa & Prashanth, NRudra & Chandrashekar, Hongally, "Decriminalization of

suicide as per Section 115 of Mental Health Care Act 2017” Indian Journal of Psychiatry (2018). 4 The Indian Penal Code, 1860 (Act No. 45 of 1860), s. 309.

33



directives, and the naming of the nominated representatives which may or may not include

family members, therefore the role of family is completely ignored in the Mental Health Care

Act of 2017. However, the Act provides many checks and balances, but at the same time it

increases the documentation of the assessment by psychiatrists, ultimately increasing time and

cost incurred by persons with mental illness more than the psychiatric care and treatment. In a

nutshell, Mental Health Care Act is a massive step in the right direction as this rights-based

approach needs right amount of commitment from the government and there is a need to

enhance the workforce and technological resources to fulfil the obligation of right to access for

treatment.

II. A PUBLIC HEALTH CONCERN

We know healthcare is a public health concern and one of them is psychiatric disorders that

are maladaptive patterns that lead to significant dysfunctional aspects of an individual's life

caused by significant disturbances in thinking, mood, and/or behaviours that increase risks of

disability, pain, loss of freedom, or death, interact to impact different levels of functioning.

One of the reasons we must be concerned about the prevalence of mental health disorders in

India, especially serious mental illnesses, is the increased odds of developing chronic

conditions including coronary heart disease, however there is some disagreement in the

literature that all mental health disorders have an impact, but there is ample other data to show

that serious mental illness for instance, schizophrenia, major depressive disorder, bipolar

disorder, anxiety disorders and substance use disorders tend to have very serious impact on one

or more areas of functioning. The importance of understanding mental health care access is

because we know life expectancy is shortened by 10 - 17.5 years in psychiatric population and

part of it can be partially explained by high risk of various chronic diseases, including heart

disease, cancer, respiratory conditions and metabolic disorders such as obesity and diabetes

amongst psychiatric population than the general population. Although obesity is often

associated with psychotropic medication that is used to treat mental illness with psychotherapy

and pharmacology, and some of the antipsychotic medication that is used for example,

schizophrenia and it can be used in the context of depression because within depression one

can have psychosis which is associated with weight gain, but it is used because there is less

prevalence for psychomotor issues that we see with other type of antipsychotic drugs. Another

public health concern is suicidality which is high amongst people with psychiatric disorders

34



and is a major factor in reduced life expectancy among psychiatric populations. Therefore, we

need to assess the state of our mental health and its treatment.

Comorbidity is not just psychiatric disorder or chronic condition, but typically when one treats

psychiatric patients, the patients are not going to present themselves with one psychiatric

disorder. It is not just depression, so within that co morbidity one has co-occurring psychiatric

disorders such as bipolar disorder and alcohol use disorder that are prevalent. They may cause

complexity in presentation and assessment of the treatment approach. In addition, when we

have comorbidity of co-occurrence of psychiatric disorders and medical conditions like

obesity, certain cancers, and type II diabetes, it is observed that there is poor health outcome

for these sets of patients. Part of the high risks that are associated and are prevalent among

psychiatric population can be partly explained to the physiological impact that certain disorders

and their expanses have within our body. Normal anxiety is normal for our preservation as it

makes us aware about personal and professional deadlines and makes us work better, whereas

clinical anxiety makes the body react as if it is under attack, it is not thinking that there is

nothing in the environment, in fact it is reacting as if one is being chased by an enormous

animal that can pose serious injury, so as a result the nervous system is impacted and as a result

the body tends to experience reactions that are psychological; perceiving fear of the situation

and such symptoms can be understood as psychophysiological impact of anxiety state of the

body.

III. TREATMENTS AND LIMITATIONS

From a cognitive behavioural therapy approach, how one is treating psychiatric illness is that

there is stimulus happening in the environment, for instance, a person is looking for jobs online

and his or her computer stops working, and the instinctive thought is of hopelessness and

overgeneralization of this situation to overall life, and then the behaviour of throwing the

computer away or stop looking for jobs and all of these construct behaviours impact body

sensations and emotions, therefore, there is a direct relationship among these factors, meaning

they interact to impact one another. In other words, behaviour can impact thoughts in a manner

that emotions can impact thoughts. The primary interest of cognitive behavioural psychologist

to intervene is at the thought level as the maladaptive thought level is what is helping to

maintain the psychiatric issues, and if the professional intervention is at the thought level, then

35



one is more likely to have a better behaviour and a positive outcome. This is an echelon

approach using cognitive behavioural therapy for treating psychiatric disorders.

Standard approaches to treatment within psychiatry is that the initial assessment as to how

disorders are diagnosed is either conducted in-person or over the phone, and even with the

COVID-19 pandemic limiting the resources with clinicians, the standard and delivery of

therapy is in-person traditionally ranging from thirty minutes to one-hour weekly sessions over

many months. Symptom improvement measures typically rely on past, self-report data, for

example, “how is the depression of an individual over the past two weeks” is an approach

where patients recall data from the past. There is a traditional way of delivering assessment

and treatment in-person, but the problem is that in most parts of India, there are no mental

health providers due to lack of access and limited medical infrastructure, and even if there are

places where there is access to a therapist or a psychologist, evidenced-based treatments are

not used in primary care or community health settings, especially those in predominantly

minority and low-income communities.5 If there are situations where evidence-based treatment

is being used, there is also lack of attention to cultural and linguistic contexts in assessments

and treatments that could provide better assessment and relevant insight to presence of certain

disorders and data about informed treatment,6 subsequently enabling mental health care

providers to engage better with patients and retain them in therapy because low-engagement

with patients and no-shows for therapy would lead to inconsistency in improvement,

subsequently patients dropping-out from the therapy and wellness programmes.

Feasibility relates to how we deliver mental health care which primarily is an in-person

modality, but even with evidence-based treatments available, regular in-person sessions may

not be feasible for some groups as people have competing demands and this poses a barrier in

receiving psychiatric therapy. Standard assessments may not capture true symptoms as we need

to understand that symptoms, emotions, feelings and behaviour co-occur together so a patient

may not be able to recollect past behavioural patterns and details precisely, and not registering

5 Mapanga W, Casteleijn D, Ramiah C, Odendaal W, Metu Z, et al., “Strategies to strengthen the provision of

mental health care at the primary care setting: An Evidence Map” 14 PLoS ONE (2019). 6 Maulik PK, Tewari A, Devarapalli S, Kallakuri S, Patel A , “The Systematic Medical Appraisal, Referral and

Treatment (SMART) Mental Health Project: Development and Testing of Electronic Decision Support System

and Formative Research to Understand Perceptions about Mental Health in Rural India” 11 PLoS ONE (2016).

36



all the necessary and important information impacts the quality of treatment that one requires.

Therefore, in assessing the status and quality of mental health care it is important to examine

how fragmented the mental health care is. There is limited attention given to medical conditions

in psychotherapy despite the known fact that people with psychiatric disorders have co-

occurring medical condition like type II diabetes which will initially impact the mood of the

patient if it is not well-managed, and this interactive relationship can present a barrier to the

outcome of mental health care. Furthermore, oftentimes clinicians do not have access to

pertinent health history of their patients to determine diagnoses that would have otherwise

aided mental health care providers understand the trajectory of symptoms and inform treatment

approaches help facilitate the delivery of integrative care that has shown to have a positive

impact on treatment engagement and greater outcome.

IV. POTENTIALLY VIABLE TECHNOLOGIES

AI-driven technologies and systems can facilitate both clinicians and patients identify signs

and symptoms of some of the more prevalent mental illnesses as well as figure an action plan

to provide support to a person experiencing mental health challenges.7 One of the reasons to

use AI systems is augmenting dissemination of what mental health treatments is. For instance

smart phone is a potential viable platform for delivering mental health care as it is saturated;

its ownership is ubiquitous among various demographic groups so people are widely using this

platform in their daily lives. Similarly, smartphone app usage among various age groups

provides an opportunity that can leverage to augment dissemination of evidence-based care.8

Currently there are roughly four hundred thousand mental health apps in existence and they are

being used to assess and monitor symptoms. However, the psychiatric care apps are rarely

used, not even as adjunctive treatment. On the other hand, smartwatches have been identified

as a viable platform to not only deliver but to assess various behavioural biomarkers as

objective measures that can be taken to conduct in-time assessment that can facilitate in

understanding symptoms - how patients are doing over the course of the treatment, and

therefore deliver tailor care to increase outcome. There is ample evidence that people who are

wearing their smartwatches are exercising more so there is a possibility for passive intervention

7 Lovejoy, Chris & Buch, Varun & Maruthappu, Mahiben. "Technology and Mental Health: The Role of Artificial

Intelligence" 55European Psychiatry 1-3 (2019). 8 Brunn, M., Diefenbacher, A., Courtet, P. et al.,” The Future is Knocking: How Artificial Intelligence Will

Fundamentally Change Psychiatry” 44 Acad Psychiatry 461–466 (2020).

37



through such AI-based devices fostering digitalised psychiatric treatment in mental health

care.9 When we look at artificial intelligence it can appear to be complex to understand, but it

is evident in everything we do as it is a combination of technologies based on certain

algorithmic codes that predict various models of behaviour, so it pulls information for example

from an AI system that informs decisions based on labelled datasets that identifies risks pattern

with patients suffering from psychiatric disorders, and this could trigger tailored intervention

treatment based on these risks.

Mobile device apps could be used to leverage initial clinical assessment especially in the

resource environment by having apps being part of psychiatric care where patients are

completing assessments and therefore, that information is being used to triage patients most at

risk and in immediate need of care. In low-resource communities, low-resource healthcare

centres move along the assessment process because assessment is key to prognosis measures

of treatment, and this is the stage where mental health care app can be valuable by eliminating

the waiting period for scheduling an in-person appointment with clinicians. Another

worthwhile feature of mental health care app is to deliver psychoeducation programmes that

are beneficial to newly diagnosed patients, since the information on the symptomatology of a

panic disorder will decrease individuals' fear of having a heart attack and decrease further panic

and manage their respective disorders better. Therefore, by ensuring increased access in

translation of evidence-based treatments to mobile device app platforms will deliver quality

mental health treatment by embracing approaches that appropriately address symptomatology

of the disorders and constructs associated with change in improvement and let patients have

access to these types of treatments. These programmes can be self-paced for newly diagnosed

patients such as patients suffering from depression or time constrained intervention for patients

who have completed substantial part of their therapy. Features within mental health care apps

such as electronic diaries through voice dictation makes it easy to monitor symptoms as a

crucial aspect of formulating treatment and identifying patterns to accurately address them.

9 Benoit, James PhD; Onyeaka, Henry MD; Keshavan, Matcheri MD; Torous, John MD, “MBI Systematic Review

of Digital Phenotyping and Machine Learning in Psychosis Spectrum Illnesses” 28 Harv Rev Psychiatry 296-304

(2020).

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Scientific support for mobile device app-based health programmes for dissemination of quality

mental health care and increasing the access to psychiatric prognosis, consultation and therapy

have generated high interest amongst developers and users.10 There is empirical evidence to

show that there is significant decrease in depression symptoms,11 and a sizable impact in terms

of outcome when compared to smartphone app-based programmes to non-smartphone

programmes. Although, there have been few randomised controlled trials to determine efficacy

of an intervention of a programme to draw conclusion over the advancement of newly deployed

smartphone app-based programme in contrast to the current standards of uncontrolled

environment.12 The pilot randomised trials have stringent guidelines for confirming that

comfortable participants have similar psychiatric conditions, for instance participants in

smartphone app-based programmes must have similar anxiety levels for equitable outcomes.

Artificial Intelligence and technology can be potentially utilised to address the problems within

mental health assessment and treatment segments as in to assess the attention to language and

meaning of language that could really help clinicians to provide better informed treatment.

Qualitative and quantitative data on symptomatology and anxiety experiences may help capture

language, culture and meaning by identifying hallmark psychiatric symptoms in construct that

are not different but the features of psychiatric symptoms are present in unique ways for certain

groups. Somatic symptom disorders (SSD) are persistent distressing physiological symptoms

that can be associated with depressive disorder, but in certain clinical settings when somatic

symptoms are reported and not the psychological hallmark such as depression, feeling-low,

suicidal ideation, major depressive symptoms for some reason are not explored in these

settings, therefore patients are misdiagnosed and at times disorders remain untreated. Patients

suffering from psychiatric disorders are asked to talk about their experience, utilising various

models, and developed models label data and feed them to identify clusters of symptoms and

these clusters are used for inform psychiatric care.

10 Bowie-DaBreo, D., Sünram-Lea, S. I., Sas, C., & Iles-Smith H, “Evaluation of Treatment Descriptions and

Alignment With Clinical Guidance of Apps for Depression on App Stores: Systematic Search and Content

Analysis” 4 JMIR formative research (2020). 11 Torous J, Wisniewski H, Liu G, Keshavan M., "Mental Health Mobile Phone App Usage, Concerns, and

Benefits Among Psychiatric Outpatients: Comparative Survey Study" 5 JMIR Ment Health (2018). 12 Dimeff L, Jobes D, Koerner K, Kako N, Jerome T, Kelley-Brimer A, Boudreaux E, Beadnell B, Goering P,

Witterholt S, Melin G, Samike V, Schak K. "Using a Tablet-Based App to Deliver Evidence-Based Practices for

Suicidal Patients in the Emergency Department: Pilot Randomized Controlled Trial" 8 JMIR Ment Health (2021).

39



Relational Agents are human-like computerised characters that have been or are being used in

delivering mental health care treatment as these entities are programmed in such a manner that

they memorise specific patients details, interact with them and mimic the proficiency of real

therapists and care providers, augmenting psychiatric care. For instance, robots, including

relational agents like "Laura13," have shown to be efficacious in treatment for schizophrenia

and other disorders like anxiety. Participants are receptive to these platforms because they view

them as "trustworthy", "supportive and encouraging" and "a virtual friend", and in some cases,

relational agents were preferred instead of a human health coach or a counsellor. The goal is

to have this part of health care for all those suffering from psychiatric disorders, and it might

be expensive to develop and implement AI systems,14 but overall the analysis that is done over

time in comparison to the number of people required as staff and time needed to disseminate

mental health care to the affected population of the community, the overall cost analysis of

relational agents is very optimal. However, relational agents can prove to be costly and are not

considered feasible for the long-term care, so what is being utilised now is the chatbot,15 also

known as a computerised interactive robot that intermingles with patients taking a text-based

approach to AI-based mental health intervention, and over the period of time there is low

engagement because the interactive nature of the chatbot is related with interest as compared

to regular in-person engagement and psychiatric care. Relational agents delivered treatments

show efficacy in the management of social phobia such as public speaking anxiety, panic

disorder, and agoraphobia.16

As we move further and examine the status of mental health in India, better assessment allows

us to better understand the pattern of behaviour and predict overall mental health. However,

the manner in which data is being collected may not be sufficient and quality data for informed

treatment. Passive data collection opportunities kindle enhanced assessment and superior

13 Bickmore, Timothy & Gruber, Amanda, “Relational Agents in Clinical Psychiatry” 18 Harv Rev Psychiatry.

119-30 (2010). 14 Gamble, A., "Artificial intelligence and mobile apps for mental healthcare: a social informatics perspective"

72 AJIM 509-523 (2020). 15 Fitzpatrick K, Darcy A, Vierhile M, "Delivering Cognitive Behaviour Therapy to Young Adults With

Symptoms of Depression and Anxiety Using a Fully Automated Conversational Agent (Woebot): A Randomized

Controlled Trial" 4 JMIR Ment Health (2017); 16 Marsch, L. A., Lord, S. E., & Dallery, J. (eds.) Behavioural Healthcare and Technology: Using Science-Based

Innovations to Transform Practice (Oxford University Press, 2015).

40



prediction of behaviours and overall mental health of patients. People are using various AI-

driven technologies and their interaction with them generates viable data of understanding

symptoms and intervention, these include think sensors, geolocation, search histories, and

social media searches.17 For example, think sensor data through a Fitbit18 and the built-in light-

emitting diode (LED) that flashes into patient's skin creates biomarker data such as heart rate

facilitates the purpose of integrating data within clinical setting advancing certain areas of

research, and digital phenotype19 is developed by collecting these datasets that gives clinicians

an idea and ample information from various sources to develop a clinical profile that shows

factors that led to the development or onset of the disorder factors that contribute to the

maintenance of the disorder, prior to treating participants. Therefore, clinicians are informed

on how to tackle these various factors and why strategies that are more effective, that is, similar

in case of phenotyping where each dataset is helpful in developing a pattern for a particular

participant and based on that when clinicians observe the heart rate is elevated and consistent

with normal pattern that triggers an ecological assessment. Ecological assessment is basically

an in-time assessment of a participant's whereabouts for data collection on various factors such

as stimuli and behaviours that occur close in time, and therefore, clinicians can deliver

intervention that address these maladaptive thoughts and behaviours. Another area of ways that

phenotyping is being used for is alcohol use disorder.20 For example, if you are targeting

someone with excessive alcohol use depending on the information you have had in a participant

help us un-define and also un-deter or identify a risk profile based on where they are and their

other risks, therefore delivering intervention not only that will alert the participant of the risk

but also providing information about what they could do to decrease excessive drinking.

Identified and potentially phenotyping can identify triggers and temporal of triggers in

participants but whether the triggers that we collect and identify are the same at home versus

at work or when we map these patterns do we see that they differ during the week or the

weekends. Now with all of this information, mental health care providers access the datasets

17 Glen Debard, Nele De Witte, Romy Sels, Marc Mertens, Tom Van Daele, Bert Bonroy, “Making Wearable

Technology Available for Mental Healthcare through an Online Platform with Stress Detection Algorithms: The

Care wear Project" Journal of Sensors (2020). 18 Ng A, Reddy M, Zalta A, Schueller S. "Veterans’ Perspectives on Fitbit Use in Treatment for Post-Traumatic

Stress Disorder: An Interview Study" 5 JMIR Ment Health (2018). 19 Andrea A, Agulia A, Serafini G, Amore M. "Digital Biomarkers and Digital Phenotyping in Mental Health

Care and Prevention” 30 Eur. J. Public Health (2020). 20 Colombo, Matteo, and Andreas Heinz. “Explanatory Integration, Computational Phenotypes, and Dimensional

Psychiatry: The Case of Alcohol Use Disorder.” 29 Theory & Psychology 697–718 (2019).

41



that could essentially provide care, with the assistance of blockchain technology which is a

centralised way to store datasets and health professionals have access to data that eliminates

the third party as previously a clinician had to get consent faxed over to get the patient's

information. Blockchain is a form of digital ledger technology used to share and store data in

a decentralised way upholding storage or management of information in transparent, secure

and trusted manner. It connects to various blocks from various metadata and the amount of

metadata consisted is a huge amount of data whether it is treatment history, personal history,

various treatments that one is using including history from ever since the first to the most recent

care provider can really inform and provide clinicians easy access of information, and within

that there is an ecosystem where primary care physicians (PCP) need not call the psychologist

or call the PCP of the psychologist because one has the access to care and this is significant

because of adequate intervention, it is going to prevent inadequate intervention which can

usually lead to frustration and eventual attrition, for instance, some patients will discuss

somatic symptoms with their primary care physician and not with their psychologist or

psychiatrist and this is where the blockchain technology is effective because the centralised

information remains accessible by authorised personnel, transparent and well-defined that

could potentially help patients to inform care. The way blockchains are being used could have

great implication on genomic sequencing21 and help us understand aetiology of various

psychiatric and medical disorders,22 for example, we know there is some chromosomal

abnormalities for people with schizophrenia and this is a way to increase that amount of

metadata and we can really have an established understanding of various technology and

factors that are impacting the disorder, and therefore develop prevention even though public

health in India is not of a primary prevention programme system; it is more tertiary where

people already have disorders but we can identify people that are at most risk for this disorder

and intervene, which is really important to decrease human suffering. Artificial Intelligence

has the ability to enhance mental health care in India by forecasting onset and course of

psychiatric disorders through means of social media metadata and clinical assessments that

21 Barbara Bowles Biesecker, Holly Landrum Peay, “Genomic sequencing for psychiatric disorders: promise and

challenge” 16 Int. J. Neuropsychopharmacology 1667-1672 (2013). 22 Alexander Arguello, P., Addington, A., Borja, S. et al. "From Genetics to Biology: Advancing Mental Health

Research in the Genomics ERA” 24 Mol Psychiatry 1576–1582 (2019).

42



show temporal order of first depressive episode,23 advance understanding of biological

structure, behaviours and cognitions impacting schizophrenia, and primary prevention

programmes inhibit manifestation of psychosis such as command hallucinations, or catatonia

where patients are most at risks for suicide.

V. LIMITATIONS AND FUTURE RESEARCH

There are some limitations here that wide integration of various AI-driven technologies has,

for instance, relational agents are costly and require multidisciplinary teams, and can be

difficult to integrate into existing systems. Technical support staff may not be feasible for some

settings. Data ownership and access raises ethical and legal compliance issues. There is lack of

large randomised controlled trials as compared to the current small pilot trials with small

samples in order to assess effectiveness of AI-based technology approaches, and technology

ubiquity does not necessarily indicate that ownership of mobile phones or other emerging

technology devices have high saturation ubiquity will boost development of mental health

programmes because technology alone does not change behaviour and acceptability ratio as

the content and information needs to be examined and made suitable that could assist clinicians

in providing tailor treatment for patients, and that includes some groups where cognitive

deficiencies exist and technology-based approaches alone may not be an appropriate way to

disseminate treatment.

Technologies have created a culture of immediacy language and contexts that influence our

behaviours and, how we interact with the world can provide us information about what are

some underlying factors that interact and present symptoms and therefore should be addressed

in care. How we interact with technologies, from what we search online, how long we stay on

webpages, to what we purchase are not independent of our mental health. Such passive data

collection opportunities can expand and revolutionise how an individual is treated for

psychiatric disorders, and more importantly, prevent the onset of certain disorders and slow

progress of existing conditions that will have a public health impact on India.

23 Naslund, J.A., Bondre, A., Torous, J. et al. “Social Media and Mental Health: Benefits, Risks, and Opportunities

for Research and Practice.” 5 technol. behav. sci. 245–257 (2020).

43



VI. CONCLUDING REMARKS

In the digital age, and specifically during a global pandemic, there is a collective reliance on

technology and social media to help stay connected with family, friends and colleagues.

However, excessive use of social media and reliance on devices can contribute to negative

impacts on mental health.24 The challenges facing the mental health sector are well-known and

undisputed, with the rates of young adults disclosing mental illness continue to rise.25 Deaths

which are result of intentional self-harm among young adults under thirty years are increasing.

During the pandemic there have been heightened levels of anxiety, depression, substance

abuse, domestic violence along with other psychological problems. It is important for mental

health professionals to understand how pandemics and pandemic management affects the

mental health of clients, and to be able to use this information to better support ourselves and

our clients in a practical manner during this time. Guessing in mental health care can be avoided

through data and interactive technology solutions. AI-driven mental health care projects must

be initiated that surveys and augments innovative integration of AI systems, advanced data

analytics, young adults relationship management, and young adults support to provide an

understanding of the opportunities to ascertain whether a person is already experiencing or will

have a mental health crisis. The purpose of the innovative research and development projects

should be to identify actionable insights, to deliver holistic approaches to young adult health

and well-being. The project should aim in providing answers to the questions the mental health

sector with artificial intelligence is seeking on how to best identify and respond to young adults

with poor mental fitness, and offer insights into opportunities for resilience and thriving

approaches. All outputs from the AI-driven mental health project will be scalable sector wide,

giving mental health care providers advanced mechanisms to make positive interventions and

AI tools to engage their young adult community.

Declaration of Interest: The author reports no conflicts of interest. The author alone is responsible for the

content and writing of the article.

24 Koehler, Sarah Nichole and Parrell, Bobbie Rose, "The Impact of Social Media on Mental Health: A

Mixed-Methods Research of Service Providers’ Awareness" Electronic Theses, Projects, and Dissertations

(2020). 25 Berryman, C., Ferguson, C.J. & Negy, C., “Social Media Use and Mental Health among Young Adults” 89

Psychiatr Q 307–314 (2018).

44



Navigating Death Penalty for Sexual Offences via Recent State Amendments

Adv. Devesh Singh Tomar

ABSTRACT

The rising spate of death penalty for sexual offences reflects upon the changing jurisprudence of the

Indian Criminal Justice System. The debate which started with abolition of death penalty by terming it

inhumane and arbitrary, has taken the route towards mandatory death penalty for sexual offences with

the recent state amendments. This development puts forth several questions for the liberal democracy

projected by the Indian constitution, asking for the basis and evidence for the implementation of such a

rule. The State amendments implementing death penalties for sexual offences can be criticized on all

fronts including political, legal, social and economic factors. This article shall criticize the actions of State

government in the light of above factor to highlight the notion that apart from lack of conclusive evidence

to support the provision, mandating death penalty for sexual offences will not have isolated impact but

would have far reaching negative consequences on the Criminal Justice System.


1. CAPITAL PUNISHMENT: AN OVERVIEW

Capital Punishment also known as ‘Death penalty’ is an integral part of Criminal Justice System

across the world. Although with the rise in jurisprudence of human rights and pluralism, the debate

over its implementation is discussed in majority of legal system yet it remains intact in many states

across the world. Capital punishment can be understood as punishment wherein the convict is

executed by the State upon a judicial decree for committing an offence punishable with death. This

form of punishment is of the highest degree under any penal law across the world and is only

awarded in cases of most heinous offences such as murder, crime against humanity, crime against

state and terrorism.

The judicial decree awarding death penalty is known as death sentence and therefore capital

punishment is a legal process wherein an individual is put to death for the capital offence

committed by him. The actual process of implementing the sentence in the prescribed manner

(determined by the State) is known as execution of the punishment. Death penalty has been a part

of Indian criminal justice system since time immemorial; however, in modern system this form of

punishment was a part of penal laws during British era and the same was adopted by India after

independence in 1947. Although the system of awarding capital punishment for any offence

Advocate, LL.M (Criminal Law), B. Com LL. B (Hons.) - Shivpuri, Madhya Pradesh - India.

45



changed significantly after independence, as the constitution and criminal procedure focused on

Rule of Law and access to justice to every citizen, which was not the case during British era.

Although the statistics suggest that around 140 nations across the globe have partially or wholly

abolished death penalty as a form of state recognized punishment; Ninety Eight of which have

abolished it wholly and seven nations abolished the said punishment for only ordinary crimes and

retained the penalty for heinous offences; other forty nations have not removed the death penalty

from statues but have abolished it in practice.1 Interestingly, the rest of the nations which have yet

not abolished death penalty in law or practice include India, China and United States which are

the most populous nation in the world, meaning that a large section of people in the world are still

subjected to this highest degree of punishment in the modern era.

1.1. POSITION OF DEATH PENALTY: INDIAN CONTEXT

The fundamental right to life enshrined in the Article 21 of the Constitution of India, which

imposes an obligation upon the State to not take away life or restrict the liberty of any person

without reasonable cause.2 This provision has been the root of the various challenges for awarding

of death penalty in India on various occasions. Death penalty is awarded for various offences under

Indian Penal Code such as for offence of waging war against the government,3 abetting a mutiny

against the State,4 murder5 and murder with dacoity6, etc.; it is also awarded under the NDPS Act,7

POCSO8 and Anti-terror laws.9

The first case which questioned the constitutional validity of the capital punishment in India was

Jagmohan Singh case;10 here the appellant presented three main arguments against the

enforcement of capital punishment under section 302 of the Indian Penal Code. Firstly, it was

1 Law Commission of India,” 262th Report on Death Penalty” (August, 2015). 2 The Constitution of India, art. 21. 3 The Indian Penal Code, 1860 (Act 45 of 1860), s. 121. 4 Ibid, s. 132. 5 Ibid, s. 302. 6 Ibid, s. 396. 7 The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985). 8 The Protection of Children from Sexual offences Act, 2012 (Act 32 of 2012). 9 The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967). 10 (1973) 1 SCC 20.

46



argued that the execution of death penalty violates the fundamental rights granted to every citizen

under Article 19 and 21 of the Indian constitution; hence this form of punishment cannot be held

to be reasonable and is against the interest of public.11 It was also pointed out that there exists no

standard or guideline for imposing death penalty for any offence; lastly it pointed the vast judicial

discretion which is unguided and can be based only on the basis of judge’s preference to

punishment in a particular case. The Hon’ble Court rejected the arguments of the appellants and

held that death penalty is constitutional and is not a violation of any fundamental rights as it falls

within the ambit of reasonable restrictions.12

The Law Commission of India has also undergone extensive research and study on the subject of

death penalty in India, in its report the commission held that no argument for or against the

application of death penalty can conclusively conclude the debate and therefore the Commission

was not in a position to single out any argument but considering the diversity of opinion, the Indian

society, public opinion and the situation of law and order, the commission concluded that at that

point of time India cannot take chances with the experiment of abolition of death penalty in India.13

The 262nd Law Commission Report which was submitted in 2015 also discussed the issues related

to death penalty. The Commission concluded in its report that unlike the popular notion, death

penalty does not fulfil the penological goal of giving a deterrent effect; the commission also stated

that focusing on capital punishment as a medium of justice for the victim hampers the restorative

aspects of criminal justice system.14

Supreme Court passed a landmark judgment on the validity of capital punishment in the case of

Bachan Singh,15 wherein the Court gave birth to the doctrine of ‘rarest of rare’ which is still applied

in cases to allow death penalty in any case. The Court held in this case that the Constitution allows

for death penalty in certain extreme cases, however, there always arises a concern pertaining to the

dignity of life and therefore the courts should show resistance to take the life of any individual;

therefore this punishment should be given in only rare cases where the alternative punishment does

11 Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20. 12 Ibid. 13 Law Commission of India, 35th Report on Capital Punishment (December, 1967). 14 Law Commission of India, “262nd Report on the Death Penalty” (August, 2015). 15 Bachan Singh v. State of Punjab, AIR 1980 SC 898.

47



not justify the extraordinary situation of the case.16 It was mentioned in this judgment that the

courts must pay equal regards to the criminal and crime and both aggravating and mitigating

factors are to be taken into consideration.

An important judgment with respect to mandatory death penalty was delivered by the Hon’ble

Supreme Court in the case of Mithu v. State of Punjab;17 this judgment is considered important

because it declared the mandatory death penalty under section 303 of the Penal Code as

unconstitutional and invalid. Section 303 deals with the repeat offenders who have already been

convicted with imprisonment.18 The Court also held that such mandatory nature of death penalty

violates the Article 1419 and 2120 of the Indian Constitution. The doctrine of ‘rarest of rare case’

which was formulated by the Court in the case of Bachan Singh was elaborated by the court in the

case of Macchi Singh v. State of Punjab.21 Hon’ble Justice M.P. Thakkar laid down 5 factors which

must be considered before punishing the accused with death penalty.

Manner of Commission of Murder

This signifies such instances where the accused commits the offence of murder in a very brutal,

diabolic and heinous manner, so as to provoke intense indignation of any community or group of

people. Few examples of such instances can be where the accused burns down a house so as to

roast alive multiple lives; or if the victim was subjected to brutal and inhumane torture before the

death; or if the victim cuts the body of the victim in various pieces and disposes it, etc.

Motive for Commission

If the Court feels that the murder was committed for reasons which demonstrate complete

dissoluteness and inhumanity he can be awarded the death penalty. Such circumstances can

involve murder by hired killer for money, or for inheriting the property of parents or betraying the

nation.

16 Ibid. 17 AIR 1983 SC 473. 18 The Indian Penal Code, 1860 (Act 45 of 1860). 19 The Constitution of India, art. 14. 20 Ibid, art. 21. 21 1983 SCR (3) 413.

48



Anti-Social Nature of Crime

This generally involves those cases where the murder was committed with the motive of targeting

the marginalized communities such as Schedule castes and Schedule tribes. The murder is not

committed for personal reasons but to target such communities. This can also include targeting

any gender for exerting dominance over them; this is generally in cases of dowry death or sati or

committing sexual offences against women with such motives.

Magnitude of Crime

If the crime is committed on multiple people or all members of family or targeting a locality or

community, it can be understood as a crime of high magnitude. Terrorism act which causes death

of multiple people are considered crimes of high magnitude.

Personality of Victim of Murder

If the victim is an innocent child or a helpless woman or any physically or mentally disabled person

or person of old age or guardian of victim or a social-political figure killed for political reasons,

such mitigating factors pertaining to the personality of victim must be considered by the court

while deciding the punishment of the offence.

2. Laws providing Death Penalty for Sexual Offences in India

Sexual offences happen in a lot of forms and in different situations with people. Some of the most

commonly discussed sexual offences are rape, sexual harassment and molestation. This century

has witnessed a rise in feminist jurisprudence and therefore strict laws against sexual offences are

now implemented. The laws in India pertaining to sexual offences are often referred as “Laws for

protection of women” stating that sexual offence laws are not gender neutral. Although there has

been a rise in demand for gender neutral laws, the laws are made advantageous in favour of women

due to patriarchal norms prevalent in Indian society.

The sexual offences laws in India can be divided into few categories namely: Protection under

Indian Penal Code, Protection against child sexual abuse, and Protection from harassment at

workplace and anti-sodomy law.

49



Sexual offences are considered to be one of the most heinous forms of offences in the jurisprudence

of crime against women due to its severe impact on the mental and physical well-being of the

victim; and therefore, attract imprisonment which is extended up to death penalty in certain cases.

Both Indian Penal Code and POCSO have provisions of death penalty for certain sexual offences;

these provisions are mentioned below.

Section 376A of the Penal Code states that if any offence is committed which is punishable under

sub-section 1 and 2 of section 376 and the act causes death of the victim or causes the victim

woman to be in a persistent vegetative state, in such cases the minimum punishment shall not be

less than twenty year and can be extended to life imprisonment for the rest of the convicts natural

life, or death.22 This was one of the additions done to sexual offences law by the Criminal Law

Amendment of 2013.

Section 376E of the Penal Code provides for the punishment of the repeat offenders of sexual

offences and states that such offenders can be punished with life imprisonment for the rest of

natural life or with death penalty.23 Section 376AB prescribes for punishment which can be

extended to death if the rape is committed against victim who is below twelve years of age.24

Section 376DA prescribes for minimum punishment of up to twenty years extendable up to life

imprisonment for remainder of natural life is the victim of gang rape is below sixteen years of

age.25 Similarly in S.376DB prescribes for punishment up to death penalty if the victim of gang

rape is below twelve years of age.

Under section 6 of POCSO, the punishment for aggravated penetrative sexual assault can also be

extended up to death penalty, while the minimum punishment for the said offence has been kept

at rigorous imprisonment up to twelve years.26

22 The Indian Penal Code, 1860 (Act 45 of 1860), s. 376A. 23 Ibid, s. 376E. 24 Ibid, s. 376AB 25 Ibid, s. 376DA. 26 The Protection of Children from Sexual offences Act, 2012 (Act 32 of 2012), s. 6.

50



2.1. ANDHRA PRADESH DISHA ACT, 2019

The act27 was passed by the Andhra Pradesh State Legislature in December 2019 as a response to

the veterinary doctor rape and murder case in Hyderabad which caught the attention of national

media. The act has been passed to bring in a series of changes in the sexual offence law and impose

deterrent punishment to the offender of such crimes.

2.1.1. HIGHLIGHTS OF THE ACT

The radical changes brought through this act have been termed as ‘revolutionary’ by the

government following the passing of the bill in the State legislature. The act grants power to the

State Government to constitute a Special Police Unit under the Deputy Superintendent of Police

for investigation into cases falling within the scope of the act.

Introduction of Registry of Women and Child offenders

The introduction of a Registry of Sexual Offenders was first introduced by the Union

Government;28 however the same is not digitalized and therefore confidential. In this act, the State

legislature has initiated a digitalized registry or data which can be availed by the law enforcement

agencies for the purpose of investigation.

Exclusive and Mandatory Punishment

Under the present penal law of India, the punishment for rape is a life sentence or death in certain

extreme cases; however, the new Act provides for exclusive death penalty for rape if there is

conclusive evidence before the Court.29

Reduction in the Period for Pronouncing Judgment

After the Criminal Amendment Act of 2018, the judgment period in cases of rape was four months

i.e. two months for investigation by the police and the other two months for completion of trial by

the Court. This period of four months has been reduced to twenty-one days by the Disha Act in

which seven days are provided for the investigation and the rest fourteen days for the completion

27 The Andhra Pradesh Disha Bill, 2019 (L.A. Bill 47 of 2019). 28 National Database on Sexual Offenders, available at: https://pib.gov.in/PressReleasePage.aspx?PRID=1558130 (last visited at: May 25, 2021). 29 Disha Act, the new law of Andhra Pradesh, available at: https://blog.ipleaders.in/disha-act-the-new-law-of-andhra-

pradesh/#Introduction (last visited at: May 26, 2021).

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https://blog.ipleaders.in/disha-act-the-new-law-of-andhra-pradesh/%23Introduction



of the trial. The said changes will be implemented via amendment in section 173 and 309 of

CrPC.30

Separate Recognition of Social Media Harassment

In cases of harassment of women or children on social media platforms via text or any means of

digital harassment shall be punishable under the Penal Code up to two years for first conviction

and subsequently for repeat offence for four years.31

Reducing the Period of Appeal

The period of appeal for the disposal of cases of rape has been reduced from previous six months

to three months to facilitate speedy disposal of cases and seek justice for the victim.32

2.1.2. ISSUES CONCERNING DISHA ACT, 2019

One of the most highlighted cases of sexual offence in Indian jurisprudence is the 2012 Nirbhaya

case where all the organs of criminal justice system worked hand in hand to complete the trial of

the case and procure a judgment at the earliest. In spite of all the efforts the trial still took around

nine months to complete and convict all the accused. This example displays the ground reality of

our criminal justice system. Now by further shortening of the time for judgment, the legislature

has put extra pressure on the police and judiciary to hurry the process of investigation and trial

within the prescribed time period.

The focus of the new law has been on punishment of the accused and fast-tracking the process of

justice, but the legislature has failed to adequately understand the hardship and issues concerning

investigation and the rights of the accused which are also protected under the Constitution of India.

The new law has been justified under the Right of Speedy Trial which is an absolute right under

Article 21 of the Indian Constitution,33 the same has been held by the Hon’ble Supreme Court in

the landmark case of Kartar Singh v. State of Punjab.34 On the other hand right to fair trial is also

30 Id. 31 Id. 32 Id. 33 The Constitution of India, art.21. 34 1962 SCR (2) 395.

52



an integral part of Article 21 of the Constitution and in case of Zahira Habibullah Sheikh v. State

of Gujarat,35 it was held by the Hon’ble Supreme Court that a fair trial requires a fair judge along

with an atmosphere of judicial calm and a trial which does not cause prejudice against the

accused.36

The primary issue in this act is to draw a rational between the right of the victim to speedy trial

and the right of the accused to fair trial; this can also be pointed out as the conflict between two

well-known quotes of criminal jurisprudence i.e., “Justice Delayed is Justice Denied” and “Justice

hurried is Justice Buried”. One of the major criticisms of the Indian judiciary is the increasing

number of pending cases which has led to overburdening of the judicial system. In such

circumstances the reduction in the period of trial shall lead to additional burden on the court with

the cases relating to other offences not being given enough attention by the court as the number of

sexual offence cases is high in almost every state of the country.

In addition to this, the state government has not provided any sufficient data or research which

backs the decisions taken by the legislature in this act. The public support to the encounter of the

rape accused and the demand by public for stringent laws is been considered as the sole reason of

the amendment. The absence of research and data has the potential to overburden both police and

judiciary which may act not only against the aim of the amendment but also has the potential to

substantially harm the fundamental right to fair trial of the accused.

2.2. THE SHAKTI CRIMINAL LAWS (MAHARASHTRA AMENDMENT) BILL, 2020

Following the footsteps of Andhra Pradesh, the State Cabinet of Maharashtra approved the Shakti

Bill of 2020 on the Human Rights day which aims at providing harsher punishment and moreover

mandatory sentences to the sexual offence convicts.

Alike Disha Act, Shakti Bill will also amend the Penal Code and the Criminal Procedure Code

along with POCSO with respect to the application of these laws in the state of Maharashtra. The

aim of the new bill is to provide a deterrent effect to sexual offences and ensure speedy justice.

35 (2004) 4 SCC 158. 36 Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158.

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The key feature of the bill is the introduction of death penalty for heinous offences against women

and children. These offences include offences such as grievous hurt due acid, rape and gang rape.

Under the Penal Code, these offences are punishable up to life imprisonment but the bill seeks to

extend the punishment to mandatory death penalty in case the court finds that there is conclusive

evidence against the accused.37

Apart from death penalty the bill also extends the punishment for other sexual offences to add

deterrent effect to the laws relating to sex crimes as a measure to prevent such offences in the

future. The bill also provides for the investigating agency or officer to seek relevant data from the

social media platform or the telecom operator which is required for the purpose of investigation

for the offences related to crime against women and children. The failure on the part of social

media platform or the other relevant service providers would also constitute a punishable offence

under the penal code.38

In another step to safeguard the dignity of the victims of sexual offences, the Bill proposes to

protect the identity from disclosure of the victims of sexual harassment, voyeurism and stalking in

addition to rape which is already protected under criminal law.

This bill also provides for a different timeline for the disposal of the cases related to sex crimes. It

provides for fifteen days for the purpose of investigation, this period of investigation can be

extended by seven days if needed; further it sets the timeline of thirty days for the completion of

trial by the Court, this period of thirty days shall start from the date of filing of the charge sheet by

the police; it also provides for a shorter period for disposal of appeal against the sentence of the

trial court, it reduces the period to forty-five days from the 6 month period provided under the

Criminal Procedure Code.39

The bill also amends the provision of CrPC which requires any person who is aware of the

commission or preparation of the offence of dacoity or robbery to the nearest police station;40 this

37 The Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020, s. 9. 38 Ibid, s. 3. 39 Ibid, s. 16. 40 The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 39.

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provision has been extended to include the offences against women and children such as sexual

harassment, rape and stalking.

3. REASONS FOR NON-IMPLEMENTATION OF DEATH PENALTY FOR SEXUAL

OFFENCES

The increasing instances of Indian legislature passing various amendment acts to provide more

stringent punishment are mostly motivated by the public outrage and widespread protest

throughout the nation following the various instances of rape and murder of women and children

which gets the attention of national media. The debate over the adequate punishment resurfaces

with the news of every new instance of a sexual offence.

The tolerance towards such news of offences has been very low in recent time, with demand for

legitimate response from the government of their steps to prevent such offences from being

committed. These demands paved way for the legislature to re-invent the approach towards sexual

offences which lead to its decision in favour of death penalty for offences which do not result in

the death of the person i.e., non-homicidal cases.

The legal fraternity seems to be widely divided on the issue of death penalty for sexual offences;

this includes the statement of Rajya Sabha MP Jaya Bachchan suggesting the public lynching of

the accused along with other leaders such as DMK’s P. Wilson suggesting chemical castration to

give a deterrent effect to the offence.41

On the other hand, the chief of UN human rights in October 2020 stated that while the offences of

sexual nature must be strictly dealt by the nations and the accused must be held accountable but

death penalty or other draconian means such as castration or torture are not the valid means to do

so. He emphasized that such draconian means look tempting to general public but will lead to a

negative shift in the focus of justice from reparation of justice to the punishment of accused.42

41 'Death Penalty, Lynching, Castration': Rajya Sabha MPs React to Hyderabad Rape-Murder, available at:

https://thewire.in/women/hyderabad-rape-murder-rajya-sabha (last visited at: May 29, 2021). 42 Rape is wrong but death penalty, castration, not the answer: UN rights chief, available at:

https://news.un.org/en/story/2020/10/1075452 (last visited at May 29, 2021).

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The UN human rights chief stressed that the punishment for the offence is only one aspects of the

whole jurisprudence and the States must focus on the key aspect i.e. access to justice and delivery

of it as the certainty of punishment has more deterrent effect on the offence as compared to the

higher degree of punishment.43

Non-Reporting of Cases and Increased Violence Against Victim

There are indeed many associated issues with introduction of death penalty in sexual offences

specially the case of mandatory death penalty in such cases. Foremost of which is the fear of non-

reporting of the sexual offence if the punishment is increased to death penalty; this is because the

data by NCRB suggests that in majority of the cases, the perpetrator is a person known to the

victim and not a stranger, this has already been identified as a reason for under-reporting of cases.

In the 2019 report published by NCRB, among all the cases of rape against women and children

(under POCSO) the percentage of cases where the perpetrator was known to victim was 94.2%.44

This signifies that if the accused is under the threat of death penalty, being a relative, the victim

would be under immense pressure from the family, relatives and also society to either not report

or to turn hostile later during the trial.

Along with under-reporting another unintended consequence of mandatory death penalty could be

increased violence against the sexual offence victim and in such cases instead of acting as a

deterrent, death penalty could be the reason for high probability of deaths in cases of rape, so as to

decrease the chances of prosecution to a certain level.45

Socio-Economic Discrimination

The unintended effects of any law can be analysed in various aspects, accordingly in cases of

mandatory sentences, death penalty and strict stand of judiciary regarding bail in such cases, the

state can face an issue of over-population of prisons which is already an alarming issue in the

43 Id. 44 National Crime Record Bureau, Report: Offenders Relation to Victims of Rape (Section 376 IPC) – 2019 (2019);

National Crime Record Bureau, Report: Offenders Relation to Child Victims of POCSO Act (Section 4 & 6) - 2019

(2019). 45 Seven Reasons Why We Shouldn't Demand the Death Penalty for Rape, available at: https://thewire.in/women/rape-

death-penalty (last visited at: May 29, 2021).

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Indian context. Due to pending cases, there are vast numbers of under trial prisoners, the over

criminalization in sexual offences can worsen the situation even further.

There have been various studies which suggest that among all the prisoners in India, the population

of minorities and economically marginalized group is over-represented. In one of the reports on

this issue, it was found that the population of Scheduled Caste (SC) and Scheduled Tribes (ST)

represents only 24% of Indian Population but it amounts to 34% of Prison population in India.46

This signifies that the progressive criminal law of India which was made stringent affected mostly

the marginalized communities (socially and economically) of India. This happens mainly due to

lack of resources to ensure fair trial and access to competent lawyers. This unintended

discrimination can be compared to the racist discrimination against the African-Americans in the

USA wherein the community is exposed to over-criminalization due to existing social prejudices

and often due to lack of resources.

Can Rape and Death be Equated?

The argument and demand of mandatory death penalty for rape has been due to a pre-conceived

notion that in the rape is equal to death of the women in the society. This logic or reason has been

central to many statements made by various politicians including late Sushma Swaraj who referred

the victim of rape as ‘Zinda Laash’ meaning a living corpse.47 This reasoning goes against the

feminist jurisprudence in which the life and honour of the women is directly linked with her

sexuality and virginity. This has been accepted as a classic example of women’s suppression in a

patriarchal society and is out rightly rejected by all feminist groups across the world.

Thus, accepting death penalty in cases of non-homicidal rape would be accepting the patriarchal

notion of the society which relates to women only on the basis of society, to fight a crime which

is also expressed as patriarchal violence against women.

46 National Dalit Movement for Justice (NDMJ) and National Centre for Dalit Human Rights (NCDHR), “Criminal

Justice in the Shadow of Caste” (2018). 47 Be much more careful in choosing words: Brinda Karat to Sushma Swaraj, available at:

https://economictimes.indiatimes.com/news/politics-and-nation/be-much-more-careful-in-choosing-words-brinda-

karat-to-sushma-swaraj/articleshow/29915901.cms?from=mdr (last visited at: May 29, 2021).

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https://economictimes.indiatimes.com/news/politics-and-nation/be-much-more-careful-in-choosing-words-brinda-karat-to-sushma-swaraj/articleshow/29915901.cms?from=mdr



No Conclusive Data in Favour of Death Penalty

The provision for death penalty for sexual offences has been added only to provide a deterrent

effect to the offence by way of such punishment. However, no report or research has been able to

conclusively prove if capital punishment does act as deterrent factor in criminal cases. The lack of

such information gives rise to many questions and critique to the laws which suggest or mandates

death penalty for any offence; as such laws are not backed by research or any credible data to

support it. This makes death penalty nothing more than just a PR stunt by the elected government

to clear the image in the mind of the general public.

It must also be pointed that under the Criminal Justice System in India, the probability of

punishment for any offence is relatively low; this leads to extreme victimization of the complainant

which effects in withdrawal of cases, witnesses turning hostile and issues of under-reporting. If

such condition keeps prevailing, the provision of death penalty would not be able to show any

deterrence.

The Justice Verma Committee which was formed after the 2012 Gang Rape Case suggested that

addition of mandatory death penalty would not be an effective method for the prevention of sexual

offences in the country. The report held that implementation of the draconian law of death penalty

would not be a progressive step in cases of non-homicidal cases.48

It has been stated various times by various legal experts that regressive approach towards

punishment can have serious consequences on the nation. A society cannot seek justice solely by

way of judicial punishments; it can only be a temporary measure to suppress the issue but the only

way to restore the justice is progressive approach in handling the circumstances and causes of

crime.49

Chances of Arbitrariness in Death Penalty

It has been argued above that death penalty in non-homicidal sexual offence is not a data driven

legal solution but a populist opinion of general public which can open gates for vast number of

48 Justice J.S. Verma, “Report of the Committee on Amendments to Criminal Law” (January, 2013). 49 K. Balagopal, “Of Capital and Other Punishments” Economic and Political Weekly (1998).

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unintended legal issues. The expansion of capital punishment for sexual offences can hamper the

jurisprudence even further as the death penalty sentencing framework is very vague and

inconsistent and can only be awarded after analysing very broad guidelines provided by the

Hon’ble Supreme Court in the case of Bachan Singh.50 In this case Justice Bhagwati in his

dissenting opinion held that death penalty in form of judicial discretion is an unstructured

framework and can be subject to arbitrariness violating Article 14 of the Constitution. This opinion

of Justice Bhagwati can be verified on the basis of various reports published on Death Penalty in

India.

The PUCL-Amnesty India report stated that the public outrage often fails to recognize the

difference between justice, punishment, revenge and vendetta; therefore the legal policymakers

have to rise above emotions to dissect the issue by reason and logic and not just to kill the

offender.51 The report has also concluded that the guidelines and safeguards placed by the Supreme

Court in awarding death penalty has not be adequately followed leading to the fact that in majority

of case the punishment of death lies with the discretion of judge and the inherent bias (if any) that

exists.

The same was concluded in the Project 39A report which analysed the trial court judgment in three

states of Maharashtra, Delhi and Madhya Pradesh. It concluded that the effect of death penalty has

been widely disproportionate on the socio-economically weaker category due to structural

inequities because of their marginalization.52

4. CONCLUSION

Amid all the debate and amendment of death penalty for sexual offences, the legislature has not

made enough efforts to address the systematic flaws that exist in the Indian Criminal Justice

System; these issues include the under-reporting of sexual offences cases, the swiftness of

complaint registration, issues with the police investigation and easing the victim rehabilitation and

50 AIR 1980 SC 898. 51 Amnesty International India and People’s Union for Civil Liberties (PUCL), “Lethal Lottery: The Death Penalty in

India” (2008). 52 NLU-Delhi: Project 39A, Death Penalty India Report (May 2016).

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protection. The debate has been restricted to merely punishment to the accused; hence making the

development accused-centric, focusing on punishment instead of victim-centric, which should

focus on access to justice. This is creating a hostile environment for the discussion on the above-

mentioned issues which have the potential to create more positive approach and development of

sexual offences jurisprudence in India. As stated above, the positive approach for development of

sexual offence jurisprudence must start from the deep-rooted issue of under-reporting of such

offences and the sensitization of investigating agencies on the underlying issues. Sentencing in

any criminal case comes at a later stage and can be rightly done if the gaps of the criminal justice

system are adequately addressed. Moreover, apart from the legal measures, little to no steps have

been taken to reduce the existing prejudices related to sexual offences and gender issues which

have time and again been held to be vital for prevention of crimes in long term. The government

has been merely responding to the public outrage and has not focused on taking steps which shall

be helpful to address the issue in a long term. The enhancement of punishment is a remedy of short

term, with no conclusive proof of its effectiveness. Laws intending to bring social reforms along

with attempting to fill the existing gaps in criminal justice system must be the primary approach

of the government in the case of sexual offences.

60



ORDINANCES IN INDIA: ADMINISTRATIVE NECESSITY OR

A POLITICAL TOOL?

Dr. Shilpi Sharma

ABSTRACT

Ordinances, the provision of which is contained in Article 123 of the Constitution of India, derives

their literal meaning from the Latin word ‘ordinare’ means ‘to set in order’. Though ordinance is

not defined in Article 123, a plain reading of the Article suggests that it is a law, which is temporary,

promulgated by the President without the adoption of the due procedure of making a statute and is

enforced in the state of unforeseen circumstances. Under Article 123, the Central executive is

enabled with extra-ordinary powers to meet any unforeseen and urgent situation when Parliament

is not in session, by promulgating an Ordinance. It is enacted in the name of the President but the

Council of Ministers render a political attribute to the provision: Determining “satisfaction” to the

fact that there is an urgency for the law is non-justiciable or can be judicially reviewed is still not

very clear. There are many instances where the Ordinances are passed in the matters of political

implications and as a pro-active step to meet the constitutional aim of social justice, but of course to

fulfil the political purpose. In a recent judgment of the Supreme Court, Justice D.Y. Chandrachud

mentioned the irresponsible use of the Power as the “Fraud on Democracy”. The author in this

article aims to analyse the political fervour behind some of the recent ordinances promulgated; to

study the transformative approach of the judiciary over the period and to subvert the misuse of the

ordinances in India.

KEYWORD(S): Ordinance; Administrative Necessity; Article 123


1. INTRODUCTION

Ordinance derives its literal meaning from the Latin word ‘ordinare’ which means ‘to put in

order’. In the context of the Indian Constitution, the provision of the ordinance is contained in

Article 123. A plain reading of art.123 suggests that an ordinance is a legislation passed by the

president on the advice of the council of ministers without following the due procedure of law

in a situation when there is urgency for doing so because of unforeseen circumstances. This

extraordinary power is not given to the executive in other developed democracies such as

America, UK, Australia, or Canada. Though, the legislative role has been given to the executive

i.e., the President. While, in other cases, it has to be carried out with the advice of the Council

of ministers, only if they are “satisfied” that urgency of promulgation of an ordinance exists.

The President has been given the power to exercise his discretion in many other circumstances,

for instance, Article 352. Here, he needs to act on his “satisfaction”, but how far his satisfaction

matters in the advice of the Council of Ministers. Thus, this is always a question of judicial

Associate Professor, School of Law, AURO University, Surat, Gujarat - India.

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review. In R.C. Cooper V. Union of India1, the Supreme Court agrees that it is always the

satisfaction of the council of Ministers on which the President promulgates an Ordinance. This

decisive role of the Council of ministers which is a political component of the Indian

democracy has made the promulgation of ordinances a tool to meet their political ends.

Numerous ordinances and their use have always been questioned from the one that was

promulgated way back in 1930 to try Bhagat Singh and his allies to that of in 2018 to

criminalise triple talaq. Some of the ordinances, like to nationalise banks are promulgated when

the session of the parliament was about to begin. Thus, there is a need to look into the possible

reasons and motives of such ordinances. Some of the pertinent issues that need to be dealt with

are: what circumstances shall be termed and interpreted as the emergency? What are the

possible options left with the President in case of the absence of his “satisfaction” about the

existence of an urgent situation to promulgate an ordinance? Should the ordinances be given

the status of legislative Acts and be given immunity to the judicial review on the grounds same

as that to an Act passed in a Parliament? How judiciary has transformed its outlook on the

excessive use of Ordinances and whether these judicial moves can help put a check on the

misuse of the provision? The research work presented here would deal with such issues

concerning the Ordinances.

2. HISTORICAL EVOLUTION

The first-ever reference of Ordinance can be found in the Government of India Act 1919. Sec

13 of the same Act refers to making an Act out of a Bill that is not passed in the legislative

council. Though the word ‘Ordinance’ is not used in the provision it speaks about the

circumstances where Governor’s legislative council “has refused to introduce, or has failed to

pass in a form recommended by the governor, any Bill relating to a reserved subject”2. In such

circumstances “the governor may certify that the passing of the Bill is essential for the

discharge of his responsibility for the subject and thereupon, the Bill shall pass,

notwithstanding that the council has not consented thereto, be deemed to have passed and on

signature by the governor may become an Act of the local legislature in the form of the Bill as

originally introduced or proposed to be introduced in the council”. The provision thus, states

about making of law without going through the normal legislative procedure.

1 AIR 1970 SC 564. 2 Government of India Act, 1919.

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Further, the Government of India Act 1935 also had the provision of passing an Ordinance in

a clear and precise way by including Sec 42 in Chapter IV i.e., Legislative Power of Governor-

General.

Sec 42 of the Act says-

“42. -(1) If at any time when the Federal Legislature is not in session the Governor-

General is satisfied that circumstances exist which render it necessary for him to take

immediate action, he may promulgate such ordinances as the circumstances appear to

him to require.

(2) An ordinance promulgated under this section shall have the same force and effect as

an Act of the Federal Legislature assented to by the Governor-General, but every such

ordinance-

(a) shall be laid before the Federal Legislature and shall cease to operate at the expiration

of six weeks from the reassembly of the Legislature or if before the expiration of that

period resolutions disapproving it are passed by both Chambers, upon the passing of the

second of those resolutions;

(b) shall be subject to the provisions of this Act relating to the power of His Majesty to

disallow Acts as if it were an Act of the Federal Legislature assented to by the Governor-

General; and

(c) maybe withdrawn at any time by the Governor-General.

(3) If and so far as an ordinance under this section makes any provision which the Federal

Legislature would not under this Act be competent to enact, it shall be void.”

The ordinance-making power of the President that was contained in article 102 of the draft

Constitution was elaborately discussed and debated in the Constituent Assembly and the

backdrop of power’s misuse under the British Rule. Special reference was given to the Public

Safety Ordinances passed by the Governor-General in British India and how most of those

ordinances were converted to Acts that accidentally or maybe strategically took away the

personal liberty of innocent people. The members favoured limiting the powers given to the

executive to prevent the possible misuse of the same.

3. THE CONCEPT AND THE CONSTITUTIONAL PROVISION

The ordinance making power in Indian Constitution is an exception to the concept of

Separation of Power which was further declared as the basic structure of the Constitution.

Art.123 speaks about promulgating Ordinances and making laws for a short duration. It gives

power to the executive to make laws in case of any unforeseen and urgent situation.

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Art 123 speaks about “Power of President to Promulgate Ordinance during the recess of

Parliament:

“(1) If at any time, except when both Houses of Parliament are in session and the

President is satisfied that circumstances exist which render it necessary for him to take

immediate action, he may pass such Ordinance as accordingly.

(2) An Ordinance promulgated under this article shall have the same force and effect as

an Act of Parliament, but every such Ordinance:

(a) shall be laid before both House of Parliament and shall cease to operate at the

expiration of six weeks from the reassembly of Parliament or if, before the expiration of

that period resolutions disapproving it are passed by both Houses, upon the passing of

the second of those resolutions; and

(b) may be withdrawn at any time by the President explanation where the Houses of

Parliament are summoned to reassemble on different dates, the period of six weeks shall

be reckoned from the later of those dates for this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not

be competent to enact as according to the constitution, it shall be declared void.”

(CHAPTER IV THE UNION JUDICIARY)

The provision confers the power to the President but as in other matters also. President

exercises those powers keeping into consideration the advice of the council of ministers too.

Therefore, indirectly, it is the power vested in the council of ministers exercised through the

President. The satisfaction about whether the circumstance in which it is urgent and necessary

to issue an ordinance exists or not is purely the subjective satisfaction of the executive.

The same has been observed by Supreme Court, when it stated “The Ordinance is promulgated

in the name of the President and Constitutional sense on his satisfaction, the truth is that they

are promulgated on the advice of his Council of Ministers and their satisfaction.”3

An Ordinance takes in its scope all the matters on which the Parliament is empowered to

legislate. In A.K. Roy V. Union of India4 , the Supreme Court declared the ordinance a law for

Article 21 and thus, shall be subject to fundamental rights. As it is coextensive with the

legislative power of the Parliament, it can make any provision which the Parliament can enact.

The exception being the provision to appropriate from the consolidated fund. It can touch upon

List II only in the circumstances that the Emergency is in operation. The contention in the

3 R.C. Cooper V. Union of India, AIR 1970 SC 564. 4 AIR 1982 SC 710.

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Supreme Court ruling in R.K. Garg V. Union of India5 saying that Ordinance cannot amend or

alter the tax law was thus rejected in A.K. Roy’s case.

4. ORDINANCE AS A TOOL OF PUBLIC POLICY FOUNDATION

A policy may be defined as the ‘product of political influence, determining and setting limits

to what the State does.’ It is also an explanation of the solution you achieved after solving a

particular problem. The tools of public policy that may be in the form of authorization,

prohibition, or prescription need political intervention but to validate such intervention a fair

procedure in the formulation of such policies is required. Such a process involves negotiation,

bargaining, and accommodation of different interests to legitimize the policy formulation.

There are many modals of Policy formulation namely the Rational Modal, Incremental Modal,

Group Theory Modal, Elite Modal, systems Modal, and Institutional Modal.

The statutory Acts which are the formalisation of the Policy for the society follow the systems

and the institutional modal of Policy Formulation. In the institutional modal, many people or

agencies come together to formulate the policy with the help of rules or procedures. In this, the

modal policy is the result of an internal agenda of the political institution which was then

validated by the law-making body. In the systems modal, political agencies respond to the

demands and desires of the people. The policy is the result of playing a role by the various

institutions. Inputs are given by various interest groups which subsequently results in a policy.

Such procedures can be seen in the steps taken to formulate a law in the legislative body.

Taking into consideration the legislative process of policy formulation, Law-making involves

stages such as –

1. Presentation of draft Bill before the cabinet committee which releases it for public

comment.

2. Modification based on public inputs

3. Vetting by the cabinet to see that it has kept to agreed terms and principles and not in

contravention of any other policy.

4. Legal approval by the legal advisors

5. Tabling the Bill in the parliament by the concerned Minister.

5 (1981) 4 SCC 675.

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6. Bill is debated in the Parliament and passed to become law based on voting

The process in itself includes the voice of every stakeholder, whether a policy is formalised by

Institutional or the system modal, it gives voice to the people for whom it is formulated in the

process of legislative law-making when it is debated and vetted by the representatives of the

people in the house. The ordinances, on the other hand, are the imposition of the political

opinion of the ruling party as it never involves the discussions and debates by the

representatives in the assembly. The law in the form of the ordinance is though, temporary

legislation and need to be tabled for the constitutionally valid legislative process within a

stipulated time but the abuse of the provision to meet the emergency has been noticed when it

is opted by the ruling party for securing the political edge over the rivals. The discussion on

some of the ordinances promulgated during different periods may highlight the vulnerability

of the ordinances to the practice of adoption of shortcuts to the process of legislation in India.

5. SOME ORDINANCES AND THE POLITICAL FERVOUR

The much talked about and debated ordinance was that of Nationalisation of Bank in 1969,

during the Indira Gandhi regime. The ordinance was the Banking Companies (Acquisition and

Transfer of Undertakings) Ordinance 1969 which was soon followed by an Act with the same

name. Going into the background of the ordinance, it was aimed at channelizing the resources

towards the sectors such as agriculture, small-scale industries, entrepreneurs, and to provide

access to banks in the remote and rural areas. The move was debated in the cabinet with some

voices of dissent, the strongest voice was that of Morarji Desai who was serving as the Finance

Minister during that period and was removed from the position after his dissent. Though the

ordinance should be promulgated after the cabinet think it was an emergency but, in this matter,

the ordinance was promulgated without the statistical studies, divided cabinet on the issue, and

only one day before the session of the Parliament started. The political reasons behind the

ordinance are widely written and discussed in various writings and political history with

evidence of how the public support rallied behind Mrs. Indira Gandhi after it. The ordinance

was later on passed as an Act but by then all the dissenting voices were made silent by the

supporting voices from the benefitting public, which could have created an uproar in the

Parliament at the time of the debate on the matter.

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The National Security Ordinance 1980 was promulgated on 22nd September 1980 and was one

of those ordinances that received almost negligible opposition. Later, the Act named National

Security Act was passed in the Seventh Lok Sabha and subsequently in Rajya Sabha with much

ease. The Ordinance was aimed to provide the provision of detention of people without trial in

certain circumstances where the need may arise to prevent a person from acting "in any manner

prejudicial to the defence of India" or "the security of the State" or "prejudicial to public order

or maintenance of supplies and services essential to the community". The ordinance was

promulgated without having any emergency for the same. It seems to be a protective action of

Mrs. Indira Gandhi who came back to power after a turbulent political past that she faced. The

only need may be understood as an action to subvert the criticism and opposition of her policies

and giving rebirth to the infamous Maintenance of Internal Security Act, which was repealed

during the Janata Government with a new name.

Coming to recent times, while some of the ordinances have ignited the debate of whether there

was the notion of public welfare as the reason behind them or the political motives supervening.

Though, some of them can justify themselves. The demonetization ordinance named as The

Specified Bank Notes (Cessation of Liabilities) Ordinance 2016 promulgated on 30th December

2016, preceded by a notification of such effect on 8th November 2016 may be criticized for not

having time for preparation and to deal with the situation, but no political motives were traced

behind it. It was not only the instance of demonetization, but it had happened earlier in the year

1978 through an Ordinance only. Such moves are meant to curb corruption and inflation thus,

has to be done without letting people know such a measure was going to be in place—because

otherwise, it would have failed. Other Ordinances that can be said to have promulgated in good

faith for meeting the beneficial measures and to remove the legal hurdles in the growth of the

nation are Enemy Property (Amendment and Validation) Ordinance, 2016; Indian Medical

Council (Amendment) Ordinance, 2016; Citizenship (Amendment) Ordinance, 2015; Coal

Mines (Special Provisions) Ordinance, 2014. On the other hand, some of the ordinances are

promulgated to achieve some political ends such as “ordinance to amend the Telecom

Regulatory Authority of India Act to facilitate the appointment of ex-TRAI chief Nripendra

Mishra as principal secretary to the prime minister (an ordinance that was purely meant to

address the whims of the premier and had no consequence for the citizens at large), and the

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other to amend the Andhra Pradesh Reorganisation Act for transfer of a cluster of villages for

the Polavaram project”6.

In April 2018, the Criminal Law Amendment Ordinance was passed which provides the

provision of the death penalty to the rapists of women and children up to 12 years of age. The

ordinance was a reaction to the infamous Kathua rape case that occurred in the State of Jammu

and Kashmir in January 2018. The earlier Criminal Law Amendment Act came in 2013 which

was also a reaction to the Rape case popularly known as the Nirbhaya rape case. The

Amendment Act of 2013 came after a detailed report of the Justice Verma Committee and was

based on the recommendations of the report. Ordinance of 2018 was a penal policy brought in

haste as the matter was sensitive due to the place where it occurred and due to the accused

being Priests of the village. The ordinance was meant to act as the political saviour to the ruling

government as the BJP government was banking on the ‘Hindutva’ wave in the upcoming

election and the involvement of Hindu religious leaders (priests of the local temple). The

Ordinance was promulgated to pacify the outrage of the public as well as that of opposition on

the matter. The ordinance which was later passed as an Act in both the houses of the Parliament

was not backed by any research or the study on the effectiveness of such punishment in curbing

the crime.

The ordinance to criminalise triple-talaq though aimed at gender equality but was promulgated

to get some political mileage. The moves taken in the direction of social justice should have a

thorough debate and discussions in the Parliament before giving it a legislative shape. The

Ordinance i.e. The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 for

the first time was promulgated on 19th September 2018. As this Ordinance was to expire on

22nd January 2019, the Government introduced the Bill with the same name before the

Parliament. Though the Bill was passed in the Lok Sabha, it faced huge opposition in the Rajya

Sabha where it got stuck as the opposition demanded it to be tabled before the select committee.

The right move should be to table it before the committee and have a discussion in it as well

as among the various stakeholders concerning this proposed law. But the government re-

6 Punit Nicholas Yadav, Ordinance Raj: Rule by Diktat, India Legal, available at

http://www.indialegallive.com/special-story/ordinance-raj-misuse-of-a-constitutionally-granted-right-47915.

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http://www.indialegallive.com/special-story/ordinance-raj-misuse-of-a-constitutionally-granted-right-47915



promulgated the ordinance on 10th January 2019 just 2 days after the end of the winter session.

The same ordinance was promulgated for the third time on 21st February 2019 as a Bill that

was stuck in the Rajya Sabha was about to lapse with the dissolution of the Lok Sabha in May.

This promulgation was alleged to be done in the wake of the forthcoming general election in

which the benefits from the ordinance can be reaped in the form of Muslim votes. The recent

one, which was promulgated in UP to recover the damages for damaging the public and private

property from those accused of rioting in UP while protesting against CAA and NRC7. There

may be political motives behind it but on the surface, it seems to be an administrative necessity.

The same ordinance has been challenged in the Allahabad High Court and we must wait for

the Court to give its ruling in this matter. The question that arises by such ordinance is whether

the laws touching the social and religious problems shall be dealt with the help of the provisions

meant for exceptional and emergency use. The repeated enactment of such ordinances also

raises concerns as raised by the Supreme Court of India in multiple rulings which will be

discussed further in the study.

6. JUDICIAL REVIEW OF THE ORDINANCE MAKING POWER

The provision of the Ordinance vesting power in the executive head has always been the subject

of judicial review. The review had been done concerning the provision contained in the

Government of India Act 1935. The review has also been done after the Constitution of India

came into force. It is always a question before the Court that who is supposed to judge whether

the state of emergency exists or not? In S.K.G. Sugar Ltd V. State of Bihar8, while analysing

the Governor’s power under Article 213 which is similar to ordinance power of the President

under Article 123, the court commented that an Ordinance is subject to “subjective satisfaction”

of the governor and concerning the existence of circumstances making the ordinance necessary.

The question was earlier raised in R.C. Cooper V. Union of India9, and the Supreme Court,

while examining the constitutionality of the Banking Companies (Acquisition of Undertakings)

Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks held that

7 Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020. 8 AIR 1974 SC 1533. 9 AIR 1970 SC 564.

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the President’s decision could be challenged because ‘immediate action’ was not required, and

the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.

Pursuant to this decision, the 38th Constitutional Amendment inserted clause 4 into Article 123

of the Constitution-making the “satisfaction” of the President in relation to the circumstances

that existed for the promulgation of the Ordinance non-justiciable. However, in the State of

Rajasthan Vs. Union of India10, the Supreme Court said that Presidential Satisfaction can be

challenged on the basis of mala fide. Further, the clause was deleted by the 44th Constitutional

Amendment 1978, and the status quo on the matter was restored.

In A.K. Roy V. Union of India,11 while examining the constitutionality of the National Security

Ordinance, 1980, the Court argued that the President’s Ordinance making power is not beyond

the scope of judicial review as it is not purely a political question. However, it did not explore

the issue further as there was insufficient evidence before it and the Ordinance was replaced

by an Act. It also pointed out the need to exercise judicial review over the President’s decision

only when there were substantial grounds to challenge the decision and not at “every casual

and passing challenge”.

The Judgment in S.R. Bommai V. UOI12 , strengthened the decision in the State of Rajasthan

V. Union of India13 when it said that the Presidential proclamation of emergency under Article

356 can be challenged on the grounds of mala fide, which suggest that judicial review of other

Presidential proclamation including Ordinances. The view of the court in Bommai’s case was

further supported by the Constitutional Bench in the case of Rameshwar Prasad V. Union of

India14 in which the court decides about the judicial review of powers under art. 356, in the

same lines as in Bommai’s case.

10 AIR 1977 SC 1361. 11 AIR 1982 SC 710. 12 AIR 1994 SC 2113. 13 AIR 1977 SC 1361. 14 (2006) 2 SCC 1.

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The Court took a different stand in T. Venkata Reddy V. State of Andhra Pradesh15. The court

said that ordinance-making power is a legislative power of the President and Ordinance stands

on the same footing as the legislative Act passed in the Parliament. Therefore, bears all

immunities as available for the legislative acts. It can be challenged if it transgresses the

Constitutional limit but cannot be challenged based on improper motives, non-application of

mind, or the ground of its propriety, expediency, and necessity. The decision does not foreclose

the judicial review of the ordinance but limits the grounds of the review only. Later in B.A. The

Hasnabha V. State of Karnataka16, the Supreme Court again supported the contention in T.

Venkat Reddy’s case that Ordinances are at par with the legislations and can only be challenged

on the grounds on which legislation can be challenged. In this particular case, Karnataka High

Court declared an Ordinance promulgated by the Governor as being mala fide. On the appeal

to the Supreme Court, it was held that mala fide cannot be attributed to the legislature as a body

and the governor acts as a substitute to the body of legislature while making ordinance.

One of the ways to misuse the ordinance is to re-promulgation of it multiple times. In D.C.

Wadhwa V. State of Bihar17, the Apex Court showed its concern about the establishment of the

“Ordinance Raj” by re-promulgating ordinances without putting them before the House of

Parliament. In this particular instance, around 257 ordinances were re-promulgated by the

Governor of Bihar and kept alive for up to 14 years. The Court called it a “colourable exercise

of power” and “subversion of the democratic process”, and thus unconstitutional.

A similar case to the D.C. Wadhwa came again before the court where ordinances were re-

promulgated in Bihar without laying them before the Parliament. Pronouncing the majority

judgment in Krishna Kumar Singh V. State of Bihar18, Justice Chandrachud said that the

ordinance making authority is not an ultimate entitlement but “conditional upon a satisfaction

that circumstances exist rendering it necessary to take immediate action”, and it’s also not

beyond the judicial review.

15 AIR 1985 SC 724. 16 AIR 1998 Kant.91. 17 (1987) 1 SCC 378. 18 Civil Appeal No.5875 of 1994.

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The court has thus tried to maintain the balance between the provision of emergencies and the

legislative power conferred upon the Parliament.

7. CONCLUSION

The provision of Ordinance though was introduced by the Government of India Act 1919 for

the first time in India. It was the provision that is present neither in American nor in the English

Constitution but present in India from the pre-constitution era and as well as in the Constitution

drafted and adopted in India after independence. The provision of Ordinances is to be invoked

at the time of emergency circumstances. Though, what would be the emergency is solely on

the satisfaction of the President and cannot be questioned in the Court of Law for mala fide.

The Ordinances are put at par with the legislative Act and thus carry all the immunities

available to the Legislations passed by the Parliament. The same has been duly established by

the court in multiple judgments passed on the issue. As the President of India acts upon the

recommendations of the cabinet on the issue, the provision has been misused many times by

the ruling party to impose the policy for purely political reasons or to gain some political edge

upon the opposition. Nevertheless, many ordinances have been promulgated which were the

need of the time. The enactment of ordinances due to public pressure on some social issues is

the most criticised as they were promulgated without any background study and sometimes to

appease a particular section of society thus creating unrest in the other sections. Re-

promulgation of ordinances without putting it before the house of Parliament has been the

prominent form of misuse of the provision and the Apex Court has declared it as a fraud to the

Constitution. The Ordinance-making power was conceived as the power to be used sparingly

to meet the urgent circumstances and shall be used to address the urgent non-political

administrative requirements. Moreover, the issue of the validity of the decisions taken as a

result of authority given by a particular Ordinance, after the lapse of the ordinance remains

unanswered and has not been conclusively settled by the Judiciary also.

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Protecting the Aboriginals of Jammu & Kashmir - An Exploratory Study

of the Tribal Quest for Settlement Through the Roshni Act

And Forest Rights Act

Romit Nandan Sahai

ABSTRACT

The Jammu & Kashmir Region has seen an unscrupulous wave of changes in its polity within a span

of few years. One of the relegations of the year 2020 was the annulment of the Roshni Act, 2001,

which sought to provide land to the landless in a lawless state. The aim of this paper is to explore the

premise of the Roshni Act through the lens of the aboriginal and indigenous communities of the

region to showcase what the act was promulgated to accomplish and what was happening in its guise.

It will do so by first highlighting the precarity of the Tribal population of the region, and then it will

explain the high aspirations & low realizations of the Roshni Act. It would then analyse the reasoning

of the Jammu & Kashmir High Court and extend a robust defence towards their decision. Lastly, it

would try to visualize the seemingly uncertain future of these aboriginals by analysing the aftermath

and outreach of the court’s verdict and what future beholds for them with the recent move of the

Government to implement the Forest Rights Act in the region to try and answer whether the Forest

Right Acts would be able to fill in the void created by the Roshni Act.


Introduction

On the 9th of October 2020, the Jammu & Kashmir High Court pronounced the annulment of

the Roshni Act, which was one of the first forms of land reform scheme in any state. The

decision received a mixed response. While some right-winged “devotees” acclaimed that the

court did its duty to protect the integrity of the State & its land from falling into the wrong

hands. The others viewed this move as the starting point of a long land conundrum on top of

the already prevailing predicaments of the Jammu & Kashmir Region,

Demography of the Dependents

Jammu & Kashmir, for centuries, has been the epicentre for diverse and vivacious

communities; given its unsettling history and its strategic geography as the focal of politics,

this region, in fact, holds the 2nd Rank in terms of Percentage of Schedule Tribe population;

outpaced only by Madhya Pradesh1.

Third Year, B.B.A. LL.B. (H.) Student - Vivekananda Institute of Professional Studies, Guru Gobind Singh

Indraprastha University, New Delhi - India. 1 Office of Registrar General & Census Commissioner, “Jammu & Kashmir – Data Highlights Scheduled Tribe

Census” (Ministry of Home Affairs, 2011)

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The population of Different Scheduled Tribes in Jammu & Kashmir as per 2011

Census2

As per the census office of Jammu, STs constitute almost 11.9% of the total population,

wherein the Muslim Gujjar community is predominant. Gujjars are named after their

profession; Cattle Breeders initially resided in Gurjistan (now Afghanistan), from where they

started migrating in the 5th century in search of green pastures, and within the next two

centuries, they had migrated into Gujarat. Due to the droughts, they again started migrating,

this time towards Kashmir3. They finally settled here because the topography was ideal for

cattle grazing. The second dominant tribe in Jammu & Kashmir are the Bakarwals, who share

a common ancestry with the Gujjars and differ in titular because of their rearing of goats.

Both of these Scheduled Tribes, among others, were nomadic, moving from pasture to pasture

within the vast lands of Jammu & Kashmir. As the political turmoil turned up in the region,

these tribes underwent a substantive change in their subsistence. In 1947 when the British left

India, and the undecided princely State of Kashmir was still picking whom to side with,

2 Kumar Rajesh, “State Policies and Marginalized Communities Politics of Reservation in Jammu and Kashmir”

(2016) (25 University of Jammu – India) 3 Mohd. Abdullah & Yassar Mehmod et al, “Historical Background and Socio-Cultural Aspects of Gujjar

Community in Jammu and Kashmir: A Case Study” 68(48) Research Gate (2020).

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Pakistan Armed forces, under the apprehension that Kashmir’s Hindu Monarch would join

India, launched an armed rebellion, better known now as the Indo-Pak war4. Subsequent

clashes between India & Pakistan for the political integration of Kashmir resulted in the loss

of cattle and a significant hindrance on the nomadic patterns of these Scheduled Tribes.

Because of this, these nomadic tribes became more dependent on the forests, wherein they

relied upon the various Orchids and Forest Produce for their living.

In essence, these nomadic tribes transfused into Forest Dwellers, who started cultivating

patches of crops like maize within the Kashmir Lands. Another consequence of the political

volatility within the region was the invasion of these lands by several Separatists and Naxalites

like the J&K Liberation Front, who proliferated the dwellings of these indigent people to carry

out their plans. These people, under the coercion of these armed militants, were forced to

harbour them in their homes which consequently turned their lands into a ‘warzone’ inviting

security combatants. Amidst these crossfires, it was these people who lost out on their

dwellings and were left with no place. Not to mention the increase in infrastructural projects

like dams has also led to more and more land being annexed and cleared, which again leaves

these people displaced from their inhabitancy. Even the High-Level Committee on Socio-

Economic Reforms noted the aftermath of the devastations & alienations of Forest Lands on

the livelihood of these tribals in its report.5 Because of the conflict & volatility, these tribals

were forced to occupy the lands of J&K in their anguish for survival. J&K, more than any other

state, felt a very strong need for an immediate recognition & enforcement of the principle

behind the Right to Land, but because of the special polity of the region, that right was a very

distant dream for these at-risk communities and their access to the forests or lands for

cultivation never came to be consecrated within the region. As a result of which the Roshni Act

was brought in force to regularise the right of these people within the region.

Praxis 0f The Roshni Act: High Aspirations & Low Realisations

In 2000, in observance of the increase in land occupation in Kashmir, the then Financial

Minister said that under the legal requirement of show-cause notice, eviction of these

4 Raju G.C. Thomas, Perspectives on Kashmir: The Roots of conflict in South Asia (Avalon Publishing,1992) 5 Government-of-India, “197 Report of the High-Level Committee on Socio-Economic, Health and Educational

Status of Tribal Communities of India” (Ministry of Tribal Affairs, 2014).

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encroachers would be next to impossible and so proposed a scheme to instead regularise the

holdings of these unauthorised people by allotting them rights over these occupied lands at the

prevailing circle rate. This scheme in 2001 was manifested into the Jammu & Kashmir State

Land (Vesting of Ownership to the Occupants) Act6 , wherein the funds generated were to

finance various hydro-power projects in the region; hence the nomenclature Roshni Act.

It proposed to transfer about 20 Lakh Kanals or 2.5 Lakh acres of land, which included

Agricultural & Forest Lands7, to its unauthorised occupants, which also meant the displaced

indigenous tribes as its direct beneficiaries. Initially, under the act, only 10 Kanals of land could

be allotted to a single application which was in long term occupation till 1990, but subsequent

amendments were carried out that modified the claim limit to 100 Kanals8 and extended the

benefit to all those who were in actual and physical occupation till 20049 and then once again

till 200710. These very amendments reeked of favouritism to the elites who were actively

grabbing more and more land at the perils of the poor by unlawful and ungratifying means in

anticipation that the pliancy of the act would vest them the rights over it. Thus, in broad daylight

under the act, the rich and the powerful were colluding with the executive to usurp more and

more land by forcefully removing the poor and indigenous tribal populous from it. In fact, the

CAG accosted the entire scheme as a massive scam in which, under the lawful guise of the act,

unauthorised means were being used to forcefully snatch and encroach the public land to

acquire its ownership at throwaway prices11. More than 75,000 acres of land had been

transferred at a meagre amount of Rs.76 /- Crore as against the proposed realisation of Rs.

25,000/- Crores12. This was attributed to the amendments made, which had though extended

the cut-off date for the land occupied to 2007 but had not revised the rate payable, which was

still fixed as it stood in 1990. Moreover, the Revenue Department in pursuant to the powers

6 The Jammu & Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 (Act 12 of 2001) [State

Legislature]. 7 Id., s. 2(h) & s. 3-A. 8 Id., s. 8. 9 Murli Krishnan, “Roshni Land Scam and Jammu & Kashmir High Court judgment explained”, available at:

https://www.barandbench.com/columns/litigation-columns/roshni-land-scam-jammu-kashmir-high-court-

judgment (last visited on Mar. 31, 2021) 10 Id., at 9. 11 S.C Pandey, “Report No. 1 of 2014 - Performance Audit on Revenue and Public Sector Undertakings of

Government of Jammu Kashmir” (Comptroller and Auditor General of India, Mar. 4 2014) 12 Ibid.

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conferred under the act,13 formulated certain rules which enabled free of cost transfer of

agricultural lands and provided other incentives, all done to further exasperate the

encroachments14.

As a riposte to the above wrongdoings and abuse of the act, a PIL15 was filed in J&K High

Court to draw its attention towards the coercive & arbitrary land misappropriation under the

guise of the act. In 2018 when the Writ PIL still laid pendente-lite in the Augustus of the J&K

High Court, the then Governor of the un-bifurcated Jammu & Kashmir, while taking note of

the unlawful land Grabbing and low-realisation of sale proceeds, said that the act had failed to

achieve its purposes and repealed the act and repudiated all pending applications leaving only

the sanctioned ones as valid allotments16. He also ordered the CBI to launch a probe for the

illegal land transactions that were effectuated under the act.

In 2019 after much outcry of foul play under the act, J&K took up the hearing of the PIL. The

first impetus of the court was to look into the validity of the Roshni Act and its object17. In it,

the court relying on the observation made by the apex court, said that the State is a trustee of

its land on behalf of the people and is not free to do as they please with it18 thus, the entire

modality of allotting state land is impermissible by the law19. It further cited that the State is

not entirely prevented from distribution of Public land but that its disposal must only be done

in compelling circumstances in the interest of the public20.

While the court, in light of the above premise, held that the purpose of the act was not

permissible in law, it did, however, venture into the possibility of saving the act. It held that

while the object of the act was for the benefit of the public, the same, however, is still not

maintainable on two counts; first, that the process of distributing the land was not in

13 Supra note 7, s. 18. 14 Jammu & Kashmir State Land (Vesting of Ownership to the Occupants) Rules, 2007. 15 Prof. S.K Bhalla v. State of Jammu & Kashmir, (2020) CM: 4036 JKHC. 16 Safwat Zargar, “What exactly is the ‘land scam’ in which Kashmiri parties are implicated”, available at :

https://scroll.in/article/980114/what-exactly-is-the-land-scam-in-which-kashmiri-parties-are-implicated (last

visited on Mar. 31, 2021). 17 Supra note 16 at 26. 18 Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1. 19 Supra note 16 at 27. 20 Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295.

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consonance with public policy, and second, that the act legitimised unlawful acts. The court

iterated that when the Government intends to divest its State Land, it must do so in a manner

that realises maximum return for the public; one way to do so is by way of public action or

tenders21. While the above rule is not absolute and any other means may be used as well but

the fact that the rate at which sale was to be affected was not changed for 28 years, the

transactions which occurred under it cannot be said to be fetching the best price and be of any

public return. So, it was held that the prescribed mode of dispossession under the Roshni Act

is arbitrary & violating Article 1422.

The next reason why the act is not good in law is because of the roots of its object. The act

aimed to regularise the land ownership of those who were in its illegal occupancy. The court

lamented that this was the first time that an act had legitimised and reinforced criminal activity

at the cost of both private and public interest23. And so, by applying the basic principle of

Interpretation of Statues as propounded by the Supreme Court,24 it held that the object of the

act in itself aimed to condone or remit the illegalities of trespass, and hence the same cannot

be valid. Because of this, the court held that the entire act is ultra vires and void ab initio25.

Lastly, the court delved into the Petitioner’s pray for investigation & criminal action against

those who were party to the illicit transactions and acts done under the statute. The court

observed that several complaints were filed to the Vigilance Organization of Kashmir

(hereinafter VOK), levelling the allegation of collusion and complicity of bureaucrats and

police officers in ‘Land Grabbing’ under the act, but the VOK had instead turned a ‘blind eye’

& a ‘deaf ear’ to all of them. The court also saw that the Revenue Department, which had

formulated and published Roshni Act rules that provided free of cost transfer of agricultural

land and concessions on an already undercast value rate, were done illegally without seeking

the approval of the State Legislature. The Bench held that the inaction of the executive and the

subsequent amendments and rules made tantamount amounts to the disfigurement of the act’s

objective of raising resources for investment in infrastructure projects and are a clear indication

21 Aggarwal & Modi Enterprises v. NDMC, (2007) 8 SCC 75. 22 Supra note 16 at 39. 23 Supra note 16 at 3. 24 Jagpal Singh & Ors. v. State of Punjab & Ors., (2011) 11 SCC 396 25 Supra note 16 at 40.

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of politically influenced illegal acts. The court thus ordered the CBI and other administrative

authorities to investigate and disclose the details of all applicants, encroachers, land allotted,

and sanctions under the act26.

Forest Rights Act: A Viable Solution?

While the court had rightly held the act as void, it failed to appraise the most important

backdrop for legislating of the act, which was to apprise the Scheduled Tribes of the region

who had been severely affected as annotated above, and any further alienation would have only

aggravated the Separatist activities and further pushed these indigenous persons into partaking

in the Naxal-Tribal Conflict. The Government of Jammu and Kashmir made this conscious

decision to regularise instead of evicting these encroachers to avoid civil unrest through the

Roshni Act. However, while some attribute this failure as the reason for the missed opportunity

to do greater good by certifying genuine cases of the tribal people and sanctioning a criminal

action against the wrongdoers, but this argument does not hold as, despite the attempts of the

court to save the act, the fundamental character of the legislation was so invariably illegal that

it couldn’t have been sustained without breaking the oath of justice at all cost.

However, the woes of the Indigenous persons have not been completely derailed; the

Parliament, after the abrogation of its Special Status, quickly responded to the repealing of the

act by extending most of the Central Laws of India27 , including the Forest Rights Act28. As a

response to the verdict of the J&K High Court, the J&K Administration swiftly avowed to

implement the Forest Rights Act and it’s under Rules in the region and complete the survey &

record of the claimants by 30th of January 202129. Even the Supreme Court remarked while

hearing petitions in the aftermath of the scrapping of the act that no immediate coercive action

will be taken against those persons who are valid occupants30.

26 Supra note 16 at 219. 27 The Jammu & Kashmir Reorganization Act, 2019, (Act 34 of 2019). 28 Forest Rights Act, 2006, (Act 2 of 2006). 29 Scroll Staff, “Forest Rights Act to be implemented in Jammu and Kashmir”, Scroll-In Nov. 18, 2020, available

at: https://scroll.in/latest/978856/forest-rights-act-to-be-implemented-in-jammu-and-kashmir (last visited on

Mar. 31, 2021). 30 Krishna Das Rajgopal, “Roshni Act: no immediate ‘coercive action’ against petitioners, says SC”, available at: https://www.thehindu.com/news/national/supreme-court-asks-jk-hc-to-decide-on-dec-21-pleas-seeking-review-

of-its-verdict-scrapping-roshni-act/article33296595.ece (last visited on Mar. 31, 2021).

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https://www.thehindu.com/news/national/supreme-court-asks-jk-hc-to-decide-on-dec-21-pleas-seeking-review-of-its-verdict-scrapping-roshni-act/article33296595.ece



However, this void cannot merely be filled by implementing the Forest Rights Act, and as time

has been of evidence, the problems of ‘Land License’ is far from ending. One of the most

incumbent issues of the judgement is that because of the court’s findings of all acts done under

it as illegal and the order to rec-account the land has wrongly labelled these landless Schedule

Tribes not as Disputed Occupants but as Encroachers. The outreach of this is that there now is

a misconception because of which the authorities now view their possession as prohibited

instead of permitted or contested under the law. The consequence of this erroneous verdict can

be traced all the way back to the Godavarman Case,31 where the apex court’s order to remove

the commercial timber intruders and prevent any encroachment of the forests was understood

as the mandate to remove all occupants of the forest and led to large-scale eviction drives32.

And as it has been, history is repeating itself; within a month after the verdict, the Jammu &

Kashmir Administration started conducting large-scale encroachment eviction drives33.

Despite the clarifications of the courts & government officials, the J&K Forest Dept. has

identified more than 63,000 Individuals in encroachment of more than 15,000 hectares of land

and is undertaking their eviction34. But this isn’t anything new either; despite several efforts

to ensure the Tribal people do not fall prey to unlawful dispossession of Forests, it has been to

no avail. Under the FRA, approval of the Grahm Sabha is needed before the eviction of any

STs or Forest Dwellers35 , but over the past, it has been merely reduced to an ad-lib. Even the

apex court in the infamous Vedanta Case36 provided an escape clause where this approval will

not be mandatory when they agree to ensure compliance with the environmental regulations.

Another major drawback of the FRA is that it has a very restrictive definition of Forest

Dwellers. If any person is to claim Rights to occupation and use of Forest and its produce, one

must be primarily residing inside of the forest37. This provision again excludes the major

31 T. N. Godavarman Thirumulkpad v. Union of India, (1997) AIR SC 1228. 32 Jean Dreze, “Tribal Evictions from Forests” Econ SSCI WP 7 (2005-2009). 33 Wire Staff, “After Demolition Drive to Evict Nomadic Groups, J&K Govt to Implement FRA”, available at :

https://thewire.in/government/jammu-and-kashmir-forest-rights-act (last visited on Mar. 31, 2021). 34 Azaan Javaid, “J&K names over 63,000 ‘encroachers’ of forest land, say they’re occupying 15,000 hectares”,

available at: https://theprint.in/india/jk-names-over-63000-encroachers-of-forest-land-say-theyre-occupying-

15000-hectares/555716/ (last visited on March 31, 2021). 35 Supra Note 29, s. 6. 36 Orissa Mining Corporation Limited v. Ministry of Environment & Forest Affairs, (2013) SC CA: 180. 37 Supra Note 29, s. 2(c)(o).

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indigenous populous of J&K who, though are dependent upon the Forests for their subsistence,

still reside near or outside of them because they are predominantly cattle herders. This

restrictive application again provides little to no scope for these people to secure their rights

and livelihood. And the very few stratums of communities that do reside in the forests cannot

prove their claim as the demolition of their hut structures leaves them with no evidence to prove

their residence38. Till now, only 3% of Community Forest Rights has been recognised under

the FRA because of the deep structural & institutional issues pertaining to the execution of the

Act39.

Conclusion

It is quite evident that the Roshni Act, like the incumbent Forest Rights Act and many other

legislations, was purported for public welfare and, like all legislations, fell prey to the corrupt

bureaucracy and politics which shackled and reduced the act to a precursor of criminal and

illegal activities. The Jammu & Kashmir High Court also inadvertently recognised the well-

intentioned notion of the act but, in reluctance, had to strike it down because of a huge

magnitude of perversion of the scheme. This seemingly left the lives of the aboriginals dangling

from a thread that might as well be their gallows. Even despite the good intentions of the Forest

Rights Act, it is laden with shortcomings that, as history has shown, seem to offer no recourse

to the poor tribes and forest dwellers. The entire future of these indigenous people is indeed

brazened with uncertainty.

38 Forest Rights Rules 2008, r. 11(a) & r. 13. 39 Citizens Report as part of Community Forest Rights-Learning and Advocacy process, “Promise

& Performance Report, Ten Years of The Forest Rights Act in India” 17 (2017).

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ELECTION MANIFESTOS IN INDIA: BEYOND ELECTION

CAMPAIGNS

Ragini Kanungo

ABSTRACT

Election manifestos are official statements of intended policies by political parties released during

election campaigning. These documents cover a wide range of issues and present the plans,

programmes and schemes of a political party that will be implemented if voted to power. The

ultimate aim of such policy documents is to garner the support and votes of people. These manifestos

being released and circulated in public are concrete proofs of the intention and plans of a political

party, unlike the statements made in public speeches and rallies which are dramatized to keep the

audience engaged with a candidate. However, despite the legal sanctity of any document written and

attested in black and white, election manifestos escape this liability resulting in ‘promises’ and

‘freebies’ mentioned in the manifestos, which are forgotten after elections. Though certain guidelines

are in force to counter the manipulation of voters by false promises mentioned in the election

manifestos, these are not sufficient. Due to the fact that manifestos are often released prior to the

commencement of elections, it does not become an electoral issue thereby restricting the powers of

the Election Commission of India over the matter. This paper analyses the current scheme of

regulation of election manifestos and discusses the possible solutions.

Keywords: Election, Election Manifesto(s), Freebies, Policy, Promise.


I. INTRODUCTION

Election manifestos are often discussed and compared with each other in prime-time debates

during elections. The policy framework, goals, programmes and schemes cited by political

parties in their manifestos are circulated and communicated to the general public through

different platforms. The issues addressed in election manifestos range from international policy

to community-specific measures. All of these are meant to represent the political standing of a

party, which helps a voter exercise his/her franchise by making a comparative choice and

effective decision. However, in absence of proper regulation, election manifestos have been

reduced to rhetoric documents aimed at manipulating marginalized, gullible populations by

promising temporary benefits in the name of ‘freebies’.

Moreover, the contents of election manifestos also target sections of the society on the grounds

of caste and religion promising special benefits to these communities. All of this form a part of

the larger picture called ‘vote bank politics’. Despite being written in black and white,

circulated in public, election manifestos do not have any legal implications on political parties,

which results in flowery promises being made by parties to gather votes, often forgotten after

Fourth Year B.A. LL. B (I) Student, Amity Law School, Delhi - India.

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elections. This paper aims at a critical analysis of the contents of election manifestos in India

and guidelines in effect regarding manifestos. It suggests placing a legal obligation on political

parties with respect to manifestos, taking inspiration from other countries around the world.

II. ELECTION MANIFESTOS: THE MANIFESTATIONS OF POLITICAL

PARTIES

Free and fair elections are the heart and soul of a vibrant democracy. They lead to change in

the government and policies.1 The fact that people are able to choose their leaders is what

makes this form of governance conducive to the modern world. In order to exercise their choice

and vote, people need to have options to choose from i.e. candidates in an election. The policies,

ideologies and promises made by political parties (represented by candidates) are what strikes

a chord with the public and ultimately results in votes. While campaigning, public rallies and

speeches are traditional forms of connecting with the voters, election manifestos have also

emerged as a significant component of elections at the national, state and local levels.

The twentieth century saw certain changes in politics and election campaigning. With the rise

and advancement of communication media, it became imperative for political parties to target

voters in all ways possible. What was earlier a discursive process, whereby parties competing

in elections only needed to set out broad principles, transitioned to an era of detailed

policymaking and a promise of a roadmap to follow once elected in the office2. Thus, election

manifestos were prepared by political parties, the contents of which were conveyed through

newspapers, radio, television and nowadays social media.

‘Manifesto’ is derived from the Latin word ‘manifestum’ meaning clear or conspicuous.3

According to the Oxford Dictionary manifesto means the public declaration of the policy and

aims of a group such as a political party.4 Election manifestos can be defined as “the official

1 Irfan Ahmad, “Manifestos and Indian elections”, ALJAZEERA, April 15 2014, available at:

https://www.aljazeera.com/opinions/2014/4/15/manifestos-and-indian-elections (last visited on May 23, 2021). 2 Islam Muhammad, “Election Manifesto as a Unit of Analysis in Research”, Research Gate (2020), available at:

https://www.researchgate.net/publication/345499230_Election_Manifesto_as_a_Unit_of_Analysis_in_Research

(last visited on June 20, 2021). 3 Krishan Mahajan & Yogesh Singh, “Election Manifesto: Legal Reality or Illusion”, 1 TNNLU Law Review (2018). 4 Election Manifestos, available at: https://eci.gov.in/election-manifestos/ (last visited May 23, 2021).

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https://eci.gov.in/election-manifestos/



statements of intended policy by political parties at the beginning of election campaigning”.5

It is a published document containing a declaration of the ideology, intentions, views, policies

and programmes of a political party. It serves as a reference document of a political party before

the public and represents the collective internal consensus of the political party. The primary

aim of an election manifesto is, however, to attract voters and ultimately succeed in winning

elections.

Over the years, the contents of election manifestos have also seen a drastic change. It has

transformed from a modest 150 words document to tens of detailed policy pages developed by

experts.6 Though a majority of the people do not read these manifestos, the ‘promises’ made

by parties in these documents exert significant influence on the voting population. At the same

time, it is also true that no political party has delivered one hundred per cent of its promises

made in the manifesto after being elected to power.7

With the Bharatiya Janata Party (hereinafter ‘BJP’) government fulfilling its commitments of

constructing Ram Temple in Ayodhya, abrogating Article 370 of the Constitution of India and

enacting legislation to protect and promote cow, as made in the 2014 election manifesto, the

importance of these policy documents has increased by several manifolds.

III. ROLE OF ELECTION MANIFESTOS: NOT MERE POLICY DOCUMENTS

Election manifestos are seldom considered an integral part of free and fair elections. It is,

however, important to understand that documented commitments hold higher authority than

dramatic speeches made in rallies. Election manifestos play a crucial role in presenting the

visions of parties in a democracy.8 They serve as a compendium of the stance of political parties

on issues of importance to the country and electorate. These manifestos serve as a basis to

determine if a political party elected to power is delivering the commitments made to the voters

at the time of election.

5 Supra note 2. 6 Ibid. 7 Irfan Ahmad, “Manifestos and Indian elections”, ALJAZEERA, April 15 2014, available at: https://www.aljazeera.com/opinions/2014/4/15/manifestos-and-indian-elections (last visited on May 23, 2021). 8 Atanu Biswas, “How much do election manifestos matter?”, The Telegraph, June 11 2019, available at:

https://www.telegraphindia.com/opinion/how-much-do-election-manifestos-matter/cid/1692165 (last visited on

May 24, 2021).

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Furthermore, the role of election manifestos does not come to an end with the end of elections,

rather they are used to analyse the political environment at various stages of the five years that

a party is in power. It can be categorised as follows:9

Pre-election stage: At this stage, manifestos are studied from the perspective of motives,

ideologies and determinants of mentioning a particular policy in the document.

During the election stage: Manifestos are analysed with respect to the rhetoric and

communication strategies, including sender, medium and receiver statistics as well as

media coverage.

Post-election stage: After elections, manifestos released by political parties serve as an

instrument to ensure accountability and study the fulfilment of promises made.

Therefore, considering the abovementioned significance of election manifestos, it can be

said that manifestos and programmes ultimately contribute to a healthy democracy.10 However,

considering the volume of contemporary election manifestos, it would take several weeks for

an average voter to read them.11 While India’s literacy rate stands at 74.04 per cent, it is

unknown if an average literate citizen is capable of comprehending complex socio-economic

issues specified in the manifestos. In this context, it is important to do an in-depth analysis of

election manifestos.

IV. CONTENT OF ELECTION MANIFESTOS: TARGETING THE VOTERS

The content of election manifestos targets voters and future voters of all categories. In addition

to the basic ideology of the parties, major policies such as economic and foreign policy, plans,

programmes and issues for governance form a part of the election manifestos. These include

but are not restricted to measures such as ensuring comprehensive social security to those at

special risk, making quality education affordable to everyone, waiving off agricultural loans, a

pension scheme for aged and helpless farmers, provision of safe drinking water and primary

healthcare etc.12 Thus, manifestos take into consideration a wide range of issues from

9 Islam Muhammad, “Election Manifesto as a Unit of Analysis in Research”, ResearchGate (2020), available at:


(last visited on June 20, 2021). 10 Ibid. 11 Supra note 8. 12 Election Manifestos, available at: https://eci.gov.in/election-manifestos/ (last visited May 23, 2021).

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international relations, national policy, inter-state cooperation to community-specific

incentives. All this in turn helps political parties to attract voters by ensuring that their needs

and aspirations are part of the list of promises they make.

A negative aspect of election manifestos or rather elections in India is its intrinsic focus on

caste, community and religion-specific incentives, commonly known as ‘vote bank politics’.

Considering the diverse population of India, political parties often target communities luring

them with schemes for their temporary benefit in return for votes.

Irrespective of the incentives and programmes included in the election manifesto of a political

party, it cannot work contrary to the provisions of the Constitution.13 Therefore, the contents

of the manifesto i.e. the intended policy, programmes and schemes have to be in conformity

with the Fundamental Rights, Directive Principles of State Policy and other provisions of the

Constitution of India.

A. Theories of election policy and programmes

Revolving around the content of election manifestos, various theories have been propounded

by scholars to analyse and understand the policies and programmes by political parties which

find a place in manifestos. The said theories are as follows:14

i. Spatial Theory

The central hypothesis of this theory developed by Anthony Downs is that there exists a

reciprocal relationship between parties’ policy programmes, the policies of rival parties and

voters’ policy preferences. However, these dynamics are significant only when public opinion

is shifting away from the political party’s policy position.

ii. Salience Theory

According to the salience theory, when political parties compete in an election they emphasise

specific policies or concerns more than others through their public statements i.e. election

13 Krishan Mahajan & Yogesh Singh, “Election Manifesto: Legal Reality or Illusion”, 1 TNNLU Law Review (2018). 14 Islam Muhammad, “Election Manifesto as a Unit of Analysis in Research”, ResearchGate (2020), available at:


(last visited on June 20, 2021).

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manifestos that correspond with the issues the public is interested in to win votes. This theory

was developed by Budge and Farlie.

iii. Function Theory

Propounded by Benoit, the function theory holds the belief that campaign communications

have certain distinct functions that ultimately desire to win the elections. These functions are

achieved by election manifestos to a large extent i.e. to acclaim positions, to attack an opponent,

and defend in case of a past attack. Thus, election manifestos can be considered multi-

functional policy documents in accordance with this theory.

B. Election manifestos from a Rhetorical perspective

Political parties often employ emotive rhetoric and valence in their election manifesto. The use

of such rhetoric is justified by the argument that it increases the appeal of the messages intended

to be conveyed to voters. Employment of emotive rhetoric in manifestos depends on whether

the policy positions communicated by parties are distinct or not.15 The less distinctive policy

position, the more likely is the use of positive emotive rhetoric and vice versa. This strategy is

also employed in case a significant portion of voters is still undecided.16

It is also seen that if a party forms the government with a single majority, the use of positive

sentiment in their election manifesto is higher than the opposition. However, if the political

party is incumbent in a coalition, yet holding the prime ministerial role, they also tend to use

positive sentiments in their manifestos higher than their coalition partners. It has also been

noted that the use of positive sentiments is higher in extreme ideological parties.17 Similarly,

during economic setbacks, positive sentiments in election manifestos are decreased.

II. Analysis of Election manifestos: 2014 Lok Sabha Elections

The 2014 Lok Sabha Election was a historic election, due to the magnitude of campaigning

and subsequent results in which the absolute majority was secured by the BJP. The other major

political party contesting the elections was the Indian National Congress (hereinafter ‘INC’).

15 Islam Muhammad, “Election Manifesto as a Unit of Analysis in Research”, ResearchGate (2020), available at:


(last visited on June 20, 2021). 16 Ibid. 17 Ibid.

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Though the ideologies and political outlook of both parties are diametrically opposite, a quick

look at their election manifestos concerning the economic reform agenda shows remarkable

similarities on FDI, Export, Import, Manufacturing, Taxation, Trade and Labour Issues.18While

INC’s manifesto was titled ‘Your Voice Our Pledge for 2014-19’, BJP’s manifesto was titled

‘Ek Bharat Shreshtha Bharat: Agenda for Development, Good Governance and Peace’. Both

the parties promised new jobs in their manifestos, “millions of jobs” by BJP and “100 million”

by INC. Similarly, both parties favoured a free-market economy, with minimum government

regulations and oppose “black money”. The manifestos of both parties were mentioned to fight

against corruption and price rise. The word “quality healthcare” finds its place in both the

manifestos. Both the parties promised education to all, and support 33 per cent reservation for

women in Parliament and State Assemblies. They also had a similar stance on “cross-border

terrorism”.19

The key points of difference in the manifestos of INC and BJP lie in the promises by the latter

party under the title “cultural heritage” including the construction of Ram Temple at Ayodhya,

abrogating Article 370, the passage of Uniform Civil Code and legislation to “protect and

promote cow”. Thus, it can be seen that in the Indian context the election manifestos of different

political parties have similar policy approaches towards socio-economic issues, differing only

in minute aspects. Likewise, most of the parties resort to sky-high promises and commitments

in their manifestos, which are often forgotten after being elected into power.

V. CRITICISM OF ELECTION MANIFESTOS: ILLUSIONARY PROMISES

In their true sense, election manifestos are intended to represent the goals, programmes and

plans of a political party if elected to power. By comparing the manifestos of different political

parties, it is expected that people will be able to make a choice amongst contesting candidates.

However, under the garb of influencing voters, several parties make promises that are

impossible to fulfil and attract voters by ‘freebies’ mentioned in their manifestos. These

promises are usually targeted at groups of the electorate such as Below Poverty Line (BPL)

families, weaker sections of the society, women, handicapped etc.20

18 Krishan Mahajan & Yogesh Singh, “Election Manifesto: Legal Reality or Illusion”, 1 TNNLU Law Review (2018). 19 Irfan Ahmad, “Manifestos and Indian elections”, ALJAZEERA, April 15 2014, available at:

https://www.aljazeera.com/opinions/2014/4/15/manifestos-and-indian-elections (last visited on May 23, 2021). 20 Election Manifestos, available at: https://eci.gov.in/election-manifestos/ (last visited May 23, 2021).

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Several promises like ‘eradication of poverty, unemployment and corruption’ though claimed

by political parties in their manifestos, do not see the light of the day. The compelling priorities

of parties during elections are to win a seat, for which they capture the imagination of voters

by promising ‘development’ and indicating its benefits by freebies.21 Furthermore, there are no

consequences if a political party fails to fulfil promises written in its manifesto, they often find

one or the other excuse for its inability to do so.22 In such a scenario, manifestos become a

formality, a mere photo-op in the campaign of political parties.23

Some political parties are also of the opinion that election manifestos are not necessary to

connect with the voters. They do not release any manifestos and yet are able to win the election.

An example would be the Bahujan Samaj Party (BSP) which believes that election manifestos

are “hollow promises which are never realized”.24

It is interesting to note that the zeal with which plans and promises are propagated prior to

elections, lacks at the time of their implementation during terms of office. Of course, the

rebuttal to this is often cited that if the political party in power fails to implement its promises,

it is up to the people to vote it out of office in the next elections.25 Such an argument, however,

does not suit a country like India, where a majority of the vote share comes from marginalized

communities who are carried away by temporary temptations flung at them in the form of

freebies.

On questioning the party in power regarding their inability to fulfil the promises made during

elections, the natural calamities such as ‘unprecedented drought’, ‘severe cyclones’,

devastating floods’, ‘severe typhoons’, ‘whirlwinds’, ‘hurricanes’, ‘ghastly famines’ amongst

21 Krishan Mahajan & Yogesh Singh, “Election Manifesto: Legal Reality or Illusion”, 1 TNNLU Law Review

(2018). 22 Ibid. 23 Uzair Ahmad Khan, “Election Manifestos”, iPleaders, October 17 2019, available at:

https://blog.ipleaders.in/election-manifesto/ (last visited on May 24, 2021). 24 Atanu Biswas, “How much do election manifestos matter?”, The Telegraph, June 11 2019, available at:

https://www.telegraphindia.com/opinion/how-much-do-election-manifestos-matter/cid/1692165 (last visited on

May 24, 2021). 25 N Pradeep Kumar, “Election Manifestos”, Eastern Book Company, available at: https://www.ebc-

india.com/lawyer/articles/875.htm (last visited on May 24, 2021).

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https://www.telegraphindia.com/opinion/how-much-do-election-manifestos-matter/cid/1692165

https://www.ebc-india.com/lawyer/articles/875.htm




others are blamed.26 However, it is a known phenomenon that one or the other calamity would

strike a place in a year. It is the political parties who should take these calamities into

consideration before presenting a ‘rosy picture’ and a ‘cosy life’ to the voters.

In the words of Mr Varun Gandhi27, “manifestos should be considered as a legal contract

enshrining a country’s purported development agenda. For the health of India’s democracy,

ensuring accountability for manifestos remains a key reform to be pushed”.28 He further says

that instead of helping parties swing voters, manifestos often morph into an intellectual and

ideological exercise at best.

The present state of putting no obligation on the part of the ruling party for the implementation

of commitments written in election manifestos, coupled with the short memory of uninformed

citizens has reduced the policy document to mere rhetoric to hoodwink the credulous and

gullible voters.29 The Hon’ble Supreme Court of India and Election Commission of India have

taken steps to overcome the malpractices by parties under the garb of manifestos.

VI. ELECTION MANIFESTOS IN THE INDIAN SCENARIO: COUNTERING

THE ILLUSIONARY PROMISES

In light of the practice of political parties making impossible promises and attracting voters by

mentioning freebie schemes in their manifestos, the Hon’ble Supreme Court of India in S.

Subramaniam Balaji v. Government of Tamil Nadu & Ors30 held that although the promises

in the election manifestos cannot be construed as ‘corrupt practice’ under section 123 of The

Representation of People’s Act, 1951, the reality cannot be ruled out that distribution of

freebies of any kind, undoubtedly influences as people.

26 Ibid. 27 Member of Parliament, Pilibhit constituency. 28 Varun Gandhi, “Political parties must be held accountable for their election manifestos”, Hindustan Times, May

21 2018, available at: https://www.hindustantimes.com/opinion/political-parties-must-be-held-accountable-for-

their-election-manifestoes-writes-varun-gandhi/story-B2r1PBSxNhqjqqeh38tvGL.html (last visited on May 23,

2021). 29 N Pradeep Kumar, “Election Manifestos”, Eastern Book Company, available at: https://www.ebc- india.com/lawyer/articles/875.htm (last visited on May 24, 2021). 30 (2013) 9 SCC 659.

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https://www.hindustantimes.com/opinion/political-parties-must-be-held-accountable-for-their-election-manifestoes-writes-varun-gandhi/story-B2r1PBSxNhqjqqeh38tvGL.html





Recognizing the post-election plight of helpless voters, the Apex Court directed the Election

Commission of India to frame guidelines with regards to contents of election manifestos after

consultation with all recognized political parties.31 The guiding principle for framing these

guidelines was as follows32:

The distribution of freebies of any kind influences all people and shakes the root of free

and fair elections to a large extent.

Election Commission of India shall issue guidelines under the Model Code of Conduct

in accordance with powers under Article 324 of the Constitution of India, to hold free

and fair elections.

As political parties usually release their election manifesto before the announcement of

the election date, the Election Commission of India will not have any authority to

regulate any act prior to elections. However, considering the fact that election

manifestos are directly associated with the process of election, an exception can be

made.

Thus, in consideration of the above guidelines by the Supreme Court, the Election Commission

of India held a meeting with recognized National and State political parties for consultation

with them on the matter. After taking note of the conflicting views, the Commission included

‘Guidelines on Election Manifestos’ in Part VIII of the Model Code of Conduct.

A. Guidelines on Election Manifestos: The Model Code of Conduct

In accordance with Part VIII of the Model Code of Conduct, the Election Commission of India

directs all political parties to adhere to guidelines as follows, while releasing their election

manifestos33:

The election manifesto shall not contain anything repugnant to the ideals and principles

enshrined in the Constitution and further, it shall be consistent with the letter and spirit

of other provisions of the Model Code of Conduct.

The Directive Principles of State Policy enshrined in the Constitution enjoin upon the

State to frame various welfare measures for the citizens and therefore there can be no


(2018). 32 Model Code of Conduct for the guidance of Political Parties and Candidates, available at:

https://eci.gov.in/mcc/ (last visited on May 24, 2021). 33 Ibid.

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objection to the promise of such welfare measures in election manifestos. However,

political parties should avoid making those promises which are likely to vitiate the

purity of the election process or exert undue influence on the voters in exercising their

franchise.

In the interest of transparency, a level playing field and credibility of promises, it is

expected that manifestos also reflect the rationale for the promises and broadly indicate

the ways and means to meet the financial requirements for it. Trust of voters should be

sought only on those promises which are possible to be fulfilled.

The Model Code of Conduct also provides for the prohibitory period of release of manifestos

during elections as follows:

In case of single-phase election, manifesto shall not be released during the prohibitory

period as prescribed under Section 126 of the Representation of People Act, 1951.

In case of multi-phase elections, manifesto shall not be released during prohibitory

periods, as prescribed under Section 126 of the Representation of People Act, 1951, of

all the phases of those elections.

The prohibitory period as prescribed by Section 126 of the Representation of People Act, 1951

is forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in

that polling area.

In addition to the above-mentioned guidelines, Section 127A of the Representation of People

Act, 1951 may also be considered for the regulation of election manifestos. The said provision

imposes certain restrictions on election pamphlets or posters, which can be interpreted to

include manifestos as well in light of sub-section (3)(b). However, the restrictions are limited

to the obligation to mention the name of the printer, publisher and compulsory declaration by

the publisher of pamphlets and posters. The section does not delve into the contents of the

pamphlets or posters, leaving this aspect beyond the clutches of law.

The Election Commission of India has often risen to the occasion to warn political parties

against resorting to politics of freebies and promises in their manifestos.

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III. Steps taken by the Election Commission of India

The Election Commission of India has issued a warning to several parties whenever they are

found to be acting against the guidelines laid for election manifestos. Some of the instances are

as follows34:

On May 14 2016, the Commission issued a notice to All India Anna Dravida Munnetra

Kazhagam (AIDMK) pointing out that the promises made in its manifestos for the

Tamil Nadu State election violated the guidelines.

On January 16 2017, the Election Commission issued a notice to Aam Aadmi Party

(AAP) concerning a statement during the Goa Assembly Elections asking voters to

accept money being distributed by a political party, but vote for the symbol of AAP.

On 6 March 2017, the Election Commission issued notice to Samajwadi Party for the

statement of its Chief Minister at an election meeting during the Uttar Pradesh State

Assembly Election asking the voters to keep the money distributed by others but

remember his bicycle symbol for voting. The Commission convened a warning to the

party after stating that public utterances which amount to encouraging bribery in

elections are an electoral offence and corrupt practice.

Thus, while the Hon’ble Supreme Court and Election Commission of India has brought

changes in election manifestos and their content, without a strong legal backing these

guidelines remain a toothless weapon.

VII. ELECTION MANIFESTOS AROUND THE WORLD: A COMPARATIVE

ANALYSIS

A. United States of America

In the United States of America, the nature of political party platforms (election manifestos) is

policy-based, generally covering economic policy, foreign policy, healthcare, governance

reform, environmental issues, immigration etc. These do not offer specific benefits but outlines

plan and policies that would benefit large groups of the population. The manifestos are

mandated to be issued two months before election day. As there is no central Electoral

Management Body (hereinafter ‘EMB’), the State level EMB regulations generally do not

include any provisions about political party platforms. It is the Party Committee that governs


(2018).

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internally and develops the platform of a party for a particular election, as per the Charter and

Bye-Laws of the party. Thus, electoral authorities do not have any role with respect to election

manifestos.35

IV. United Kingdom

The election manifestos in the United Kingdom tend to mention more concrete policy choices

as well as their budgetary implications. At times, parties add financial paragraphs to their

manifestos which may be submitted to the Court of Audit (if it exists), which calculates how

realistic the manifesto is. The electoral authority issues guidelines for campaign materials,

which also applies to manifestos.36

V. Mexico

In Mexico, to be eligible to nominate candidates for a Federal election, a party must submit an

electoral platform (manifesto) for registration and validation by the Federal Electoral Institute

(hereinafter ‘FEI’). The platform must uphold three broad principles namely, politics, economy

and society. The manifestos should be released five months before election day. Certification

of registration and validation of the platform is essential for the nomination of candidates. Thus,

in Bhutan manifestos can be regulated and have to be approved by electoral authority before

their release.37

VI. Bhutan

In Bhutan, political parties are required to submit a copy of their election manifesto to the

Election Commission, before the primary round of National Assembly elections. Manifestos

are issued to the public only after approval by the Election Commission. The Commission

thoroughly scrutinizes the manifesto and filters out any matter that can potentially undermine

the security and stability of the nation. Moreover, manifestos cannot contain anything that seeks

electoral gains on the grounds of religion, ethnicity, region, prerogatives of the King and the

State etc. The election manifestos in Bhutan can be issued three weeks before the election day.

35 Election Manifestos, available at: https://eci.gov.in/election-manifestos/ (last visited May 23, 2021). 36 Ibid. 37 Election Manifestos, available at: https://eci.gov.in/election-manifestos/ (last visited May 23, 2021).

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Thus, like in Mexico, election manifestos in Bhutan as well are regulated by their electoral

authority.38

Therefore, as it can be inferred from the above different countries have a different role of

electoral authority for regulating election manifestos. The loopholes in the Indian scenario can

be remedied by taking inspiration from Mexico and Bhutan, who have a well-regulated

framework for election manifestos.

VIII. CONCLUSION: THE WAY AHEAD

Election manifestos are an integral part of free and fair democratic elections. They represent a

concrete roadmap that a political party intends to follow on being elected to power. Unlike

speeches made in rallies, election manifestos hold higher authority due to the fact that they are

written in black and white, and circulated in public. The importance of election manifestos

needs to be inculcated into the Indian electoral system, and parties need to be ‘realistic and

pragmatic’ while preparing manifestos.39 Statements and promises should not be made simply

for gaining the limelight without the intention of implementing them. While the measures taken

by the Election Commission of India under the order of the Hon’ble Supreme Court are

commendable, there remains a gap between electoral promise and its fulfilment. It is thus, high

time to ensure that legislative support is given to the guidelines on election manifestos and a

legal obligation is placed on the political parties. Enforcement of these promises now needs to

be adhered to by the parties. The sanctity of election manifestos needs to be conformed to by

all parties, and failure to keep the promises must invite legal consequences in the form of

restrictions on contesting elections. It is necessary to understand that there is a thin line

difference between policy pledges and promises aimed at buying votes. Liability and

accountability for such promises need to be ensured accordingly.

38 Ibid. 39 N Pradeep Kumar, “Election Manifestos”, Eastern Book Company, available at: https://www.ebc-

india.com/lawyer/articles/875.htm (last visited on May 24, 2021).

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How Should A ‘Performance’ be Defined? A Comprehensive Study

on Definitional Intricacies of Performers’ Rights

Abhinav Goswami

ABSTRACT

Though performance as an activity has a long and rich history, the giving out of

performances as a professional expert and in expectation of a monetary return is a

comparatively new phenomenon. It emerged out of a very practical necessity of modern

times. In the modern era, abstract creations such as literary works or musical notations,

which emerged much before the art of performance, required a certain level of

understanding and skill to comprehend their essence. Hence, it is of utmost necessity that

there is an intervention of a third party who would act as the medium of expression between

the author and the audience. Every creation of an author has a target audience, and if the

recipients or consumers of this creative activity are not able to decipher the idea portrayed

or otherwise enjoy the work, the very purpose of the entire process stands frustrated. In

view of this, it is necessary that these means of making the work reach the audience must

not only be sufficiently identified but also be protected, much like the underlying work. This

article aims to present a comprehensive picture of the subject matter of performers’ rights

protection and to make an attempt towards harmonizing different connotations of the term

‘performance’.


Introduction to the Law on Performers’ Rights.

Being a part of the twenty-first century where the human surroundings are brimmed

with artificiality, it is crucial to discuss the abstract behaviour of human beings. Humans

are essentially the product of nature and naturality is their natural habitat. This is evident

from the fact that literature and art in all its forms have been the primary means not

only of entertainment and learning but also of depicting and portraying natural human

traits. The acceptability of this universal truth has given birth to the concept of “Abstract

Expressionism”1. It traces the development of art, comprising of diverse styles and

techniques, and emphasizes the artist's liberty to convey thoughts and emotions through

non-traditional and non-representational means. What started as a mere philosophical

utopia in New York City in the early phase of the twentieth century, soon took the world

over and became a means of emancipation for the depressed community of performers.

Ph.D. Candidate Faculty of Law, University of Delhi, Delhi - India / Assistant Professor, Amity Law

School, Noida - India. 1What Is Abstract Expressionism? – Expression and Vitality Over Perfection, available at:

https://www.theartist.me/art/abstract-expressionism-

definition/#:~:text=Abstract%20Expressionism%20is%20an%20artistic,nontraditional%20and%20usu

ally%20nonrepresentational%20means (last visited on March 29, 2021).

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http://www.theartist.me/art/abstract-expressionism-





Leading actors such as John Pollock and Willem de Kooning have been the ardent

protagonists of it.

However, practicalities of the entertainment industry require something more credible

and real, than these philosophical thoughts. It requires legally enforceable entitlements

and to make a case for such explicit benefits, one must be able to identify the subject

matter of claimed protection, in this case, the performers’ performance. The recognition

of any benefit in favour of performers heavily depends on the meaning and

understanding of their contribution to a work i.e., their renditions or performances.

Given this, this research aims to seek answers to the fundamental question of – what is

the meaning of the term ‘performance’ in the copyright or related rights perspective.

For the said purpose, the present researcher has analysed and compared the positions of

leading copyright economies. The sole aim is to create a comprehensive view of the

subject matter of performers’ rights so that the policymakers at the interstate or

intrastate level can take guidance for their future law-making endeavours.

What is a Performance?

Though performance as an activity has a long and rich history, the giving out of

performances as a professional expert and in expectation of monetary return is a

comparatively new phenomenon. It emerged out of a very practical necessity of modern

times. In the modern era, abstract creations such as literary works or musical notations,

which emerged much before the art of performance, required a certain level of

understanding and skill to comprehend their essence. Hence it is of utmost necessity

that there is an intervention of a third party who would act as the medium of expression

between the author and the audience.

Every creation of an author has a target audience, and if the recipients or consumers of

this creative activity are not able to decipher the idea portrayed or otherwise enjoy the

work, the very purpose of the entire process stands frustrated. In recognition of this fact,

the writers, composers, and creators of all kinds started employing the services of

professional performers who could, by use of their skill and talent, take the work to the

audience in an easy and more entertaining form. Two instant benefits came out of this

development. First, the recipients started enjoying a more personalized experience and

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heightened emotional connectivity towards the work. The feeling of being a part of

something lively and real such as the adaptation of a Shakespeare drama or an opera

performance can by no means be compared with the consumption of these works in the

crude form by reading a book or interpreting musical roles. Second, the contribution of

performers became very crucial for the success of any forthcoming work and this

realization placed these new professionals in the position to bargain their services.2

Over time, the art of performing attained new heights of creative expression. Working

before a live crowd, Kazuo Shiraga of the Japanese Gutai Group made a figure by

sliding through a heap of mud3. Georges Mathieu arranged comparable exhibitions in

Paris where he savagely tossed paint to depict the ideas of the creator4. Actors like Hans

Namuth initiated the concept of expressing pictures clicked with a camera as living

creatures roaming around the surface of the mother earth. The revolutionization of

performing arts with such unique and novel ideas infused a new life into the

entertainment industry and the triggered never-dying expectations of the audience. This

shift of attention from literary, dramatic, and musical work themselves to their

performances demanded comprehensive changes in the approach of copyright law

towards the performers.

The Definitional Understanding of the term ‘Performance’

If we go by the literal meaning of the term, it means something that is accomplished or

completed, but in the generic sense, it is an art that is presented with the help of physical

acts, accompanying sounds, or visual representations. Leading English dictionaries

have also attempted to define this contentious term. The Oxford Dictionary defines

‘performance’ as: “An act of playing in concert or some other form of entertainment

performed in front of the audience.” The Cambridge dictionary defines it more

elaborately. It provides: “How well a person, machine or any device presents an activity

will be called a performance. Here the person is the one who represents an activity by

2 Performance Art: An Introduction, available at: https://www.khanacademy.org/humanities/art-

1010/conceptual-and-performance-art/performanceart/a/performance-art-an-introduction (last visited on

March 29, 2021). 3 Angie Kordic, "What is the Significance of the Japanese Gutai group?" Widewalls, Sept. 24, 2015. 4 Jackson Pollock, Abstract Expressionism, available at: https://www.tate.org.uk/art/art-

terms/a/abstract-expressionism (last visited Mar. 29, 2021).

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http://www.khanacademy.org/humanities/art-



http://www.tate.org.uk/art/art-

http://www.tate.org.uk/art/art-



his talent and intellect, and machine herein includes devices like camera, recorder,

television, etc.”

The present researcher also came across two other interesting and legally appropriate

ways of defining performance. They are-

a. “Performance is a temporary stage that can be carried out without taking any

help from technology because it is the creation of an individual, created with

the intent to spread entertainment, education, or awareness among the general

public.”5

b. “A performance is the transitory activity of a human individual that can be

perceived without the aid of technology and that is intended as a form of

communication to others for entertainment, education or ritual."6

These definitions along with the ones in Oxford and Cambridge dictionaries prioritize

four major points with varying emphasis. The first common point is the insistence on

the transitory and non-permanent nature of the activity. Secondly, the performance is

necessarily a human activity. Thirdly, the non-intervention of technology is the

expectation of all, and finally and most importantly, performance is regarded as a form

of communication for different purposes ranging from entertainment to education.

Building on this understanding, the Rome Convention first attempted to provide a

formal meaning to the term at the global level.

The International Law on Copyrights and the Concept of ‘Performance’.

The Rome Convention.

Performances come under the protective umbrella of the related rights regime as

established under the Rome Convention. This was the first convention at the global

level which dealt with the rights of the performers over their renditions. Though it did

not explicitly define the term ‘performance’, the meaning of the same can be deciphered

through the definition of ‘performer’. Article 3 (a) took a liberal view of the conception

of being a performer7 and not only mentioned the established categories of activities

5 Owen Morgan, International Protection of Performers Rights 27 (Hart Publishing, 2002). 6 Ibid. at 6-7 (raising questions regarding the scope of protection). 7 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting

Organizations, 1961 (496 U.N.T.S. 43) [hereinafter Rome Convention].

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such as acting, singing, reciting which have traditionally been regarded as accepted

forms of performances, but also provided due space to the ones which will evolve in

future with new technological achievements. This was done by the use of the

phraseology “otherwise perform” in the definition.

But the million-dollar question is – when would a person be said to be performing.

Rome does not help one here. For this, one must go back to the generic meaning of the

term as discussed by the present researcher under the previous headings to reach the

only possible conclusion that ‘to perform’ here simply means an act of communication.

Hence, whatever be the nature of the activities in which one indulges, there must be an

element of transmission of ideas, emotions from the performer to the audience. After

Rome, it was the turn of the World Trade Organization to dwell on the peculiarities of

the subject.

The TRIPS Agreement.

TRIPS8 did not even attempt to define the term performance or the performer, and it

saved itself of the effort by adopting the definitional component of Rome. This lethargic

attitude of WTO became the primary reason for the swift intervention of WIPO by the

adoption of a specific treaty for performers and phonogram producers, which brought

much-needed clarity into this highly contentious and poorly defined area.

WIPO Performers and Phonogram Treaty.

Theoretically, WPPT was the third addition to the international law on the protection

of performers' performances, brought primarily to adapt the law to suit the rising

digitalization of entertainment consumption.9 Practically, it was this treaty that was far

more alive to the plight and concerns of the performers than any of its predecessors.

The present researcher has no hesitation in referring to it as 'Berne of Performers'

because it has done for the performers what Berne did for authors.10

8 The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, (33 I.L.M. 1125)

[hereinafter TRIPS]. 9 Jorg Reinbothe and Silke Von Lewinski, The WIPO Treaties on Copyright: A Commentary on the WCT,

the WPPT, and the BTAP 236 (Oxford University Press, 2002). 10 Convention for the Protection of Literary and Artistic Works, 1886 (828 U.N.T.S. 221)

[Hereinafter Berne Convention].

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As per WPPT, any act that communicates or conveys the essence of the underlying

work to the audience for education, general awareness or entertainment purposes is a

performance, which is deserving of equal protection and regard as the underlying

literary or artistic work. WPPT follows the basic assumption that if intellect, labour, or

capital is invested in creating any act which is then transmitted to the general audience

in any form; it must fall within the protected domain of performance.

Most importantly, in addition to the already mentioned categories of acts mentioned

under the definition in Rome, WPPT has made explicit provisions for expressions of

folklore. This inclusion is not like the other inclusions already present such as singing

or dancing because it brings far-reaching consequences to the idea of performance itself.

All the other explicit categories whether they be singing, dancing, declaiming, are

bound with the requirement of there being an underlying literary or dramatic work. The

expressions of folklore by their very nature are independent of such a necessity and

hence, since WPPT the meaning and extent of the term 'performance' covers all possible

renditions, whether based on existing work or not, so long as there is an element of

communication between the protagonist and recipients.

Beijing Treaty on Audio-visual Performances.

BTAP11 is the latest attempt of the international community to address the concerns of

the performing artists. It was a major development not because it extended the rights of

the existing beneficiaries by metes and bounds but for the reason that it extended the

web of protection to a segment of performers who were the victims of absolute

deprivation among the already deprived community of performers i.e., the visual and

audio-visual performers. Since Rome Convention, the performers who indulged in

audio-visual performances were kept out of the purview of the new regime of

performers’ rights and they were left on their own to face the heat of regressive practices

of the ever-booming film industries around the world. All the major international

conventions and treaties that followed, be it TRIPS, WPPT, justified and entrenched

the divide among the performers based on the nature of their performances. While the

11 Beijing Treaty on Audiovisual Performances, 2012 (WIPO Lex No. TRT/BEIJING/001) [hereinafter

BTAP].

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performers of musical works were slowly being recognized as deserving of rights and

dignity, the market forces of demand and supply were deciding the fate of the audio-

visual performers.

It was BTAP which for the very first time dealt with the audio-visual performers in a

manner which they had long deserved and brought them at par with the performers of

musical works. However, BTAP did not bring any change into the meaning and

understanding of the term ‘performance’ and largely adopted the same connotation

which the WPPT had provided, i.e., performance is an expression of the underlying

work or folklore which establishes a direct connection between the artist and the

audience. The only change that can be implied is that the expression of the underlying

work or folklore after BTAP can also be in a visual or audio-visual format.

To make the law more specific and clearer, the treaty also provides for the definition of

“audio-visual fixation” which includes the recording of all visual or audio-visual

representations in any form that can be perceived reproduced, or communicated by use

of any modern technological means.

Meaning of ‘Performance’ under Domestic Laws.

The American Performance.

The US has a unique history of performers’ rights. Decorated with the badge of being

the oldest modern democracy and having a Constitutional provision for Intellectual

Property protection, it did raise the hopes of the present researcher. The very first article

of the American Constitution signifies the importance of IPRs in American sociology

and economics. It states that:

“Congress shall have the power to promote the Progress of Science and useful

Arts, by securing for a limited time to authors and inventors the exclusive right

to their respective writings and discoveries.”12

In the context of performers’ rights, the terms ‘useful art', 'authors' and 'inventors'

deserves special mention. A Performance is artistic creativity presented by an

individual which may have varying uses for the audience in entertainment or education

and hence it must constitute protectable subject matter under the Constitution. But when

12 The Constitution of the United States, 1787, art. 1, s. 8, cl. 8.

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it comes to the beneficiaries, the provision uses very specific terms i.e., ‘authors’ and

‘inventors.

a. Is Performance an Invention?

The latter of the two terms is comparatively easier to interpret. An inventor is the one

who invents. The subject matter of the invention can be anything, but its creation must

involve an inventive step. The most essential prerequisite of an invention is the element

of novelty. There must be something new and that newness must constitute the essence

of the product. The question is- Can a performance manifest novelty? Performances are

by their very nature adaptive and in most cases function as a means of transmitting the

underlying work to the target audience. If the underlying work is original i.e., has an

element of novelty in it, would the resulting performance also necessarily be novel?

It is not possible to provide a definite answer to the above question, as there can be

innumerable possibilities especially after WPPT which liberated the concept of

performances from its dependency on the existence of an underlying work and

introduced expressions of folklore as the new possible basis of performance. However,

the American experience has shown that this path of invention is full of complications

and should better be avoided.

b. Performance: A work of Authorship?

The other term used in the article is ‘authors’. The generic understanding of the term

hints in the direction of the creative process. An author is the one who is the creator of

the work. However, it is more popularly associated with the creation of a specific

category of works i.e., literary, dramatic, musical, and artistic works. But this fact does

not limit the basic connotation of the term and creators of all categories of works can

be referred to as authors.

Once the purview of the term ‘author’ is settled, the questions that need to be addressed

are – Can performance be the subject matter of authorship, and if yes, then who is its

author, the performing artist or the creator of the underlying work. To be authorable,

the work must be such which can be said to be created and this leads one to the

fundamental question – Is the performance a product of creation or expression? In the

very first chapter of this thesis, the present researcher clarified that performance is a

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means of expression which communicates the thoughts, ideas, and opinions of the

author of the underlying work with the target audience.

However, every performance has an element of uniqueness in it and the peculiar style

and different approach of each artist impacts the resultant performance. Therefore, there

is an element of creativity in every performance, howsoever planned and repeated over

time it may be. Creativity here does not mean something which has not been priorly

done at all. It is not based on the idea of novelty as is the case with the invention. Here,

the originality of the work is the established standard. Originality simply means a work

that is originating from its author and is not copied from any existing work. Hence, if a

performance depicts its independent creation and is not a copy of an existing

performance, it can form an authorable subject matter.

Coming to the second part of the question i.e., who is to be the author of the

performance? There are two primary candidates, the first is the author of the underlying

work and the second is the performing artist. The claim of the original authors is based

on the argument that it is their works that are being performed and the performances

are nothing but a mere means of communication comparable with other modern

technological instruments such as the audio cassette player or the reading devices.

On the other hand, the claim of the performing artists is based on two arguments; first,

they say that though they act as means of taking the work to the audience, their

performances are much more than that. Every performance is an extension of the

personality of its performer and there is always an element of personal touch which

portrays the style and character of the performing artist. These elements of the

performances help the audience to demarcate among the renditions of different artists.

The audience feels a more direct connection with the artists performing the work and

associates its peculiar experiences with their talent and skill. Hence, every performance

has its own distinct identity and separate existence.

Second, the uniqueness of each performance is to be traced to the performing artists

and not the author of the underlying work, for the reason that the original work is the

ground on which the entire superstructure of the performance is constructed by the

artists exercising discretion and taking important calls on style, way of presentation and

different approaches to be adopted, etc. There can be two performances based on the

same underlying work which may be received very differently by the audience because

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of their different approach and feel. Therefore, a performance, even if based on an

existing literary or artistic work, is an independent creation of the performing artists.

Development of the Statutory and Case Law

i. Evolution of the Statutory Laws

However, the fact that the emergence of Article 1 and inclusion of the term ‘author’ in

it was done keeping in mind the protection and promotion of the creators of literary and

artistic works, not the performers’ performances can’t be denied, and this was the

reason that when in 179013 the US Congress enacted the first copyright statute for the

newly formed nation, it had no direct or indirect reference to the protection of

performances.

But this does not mean that the Constitution of the first modern democracy of the world

completely ignored the concerns of the performing artists. When Congress came up

with the first amendment to the Constitution on December 15, 1791, the freedom of

speech and expression was guaranteed to all the citizens, and what can be the better

mode of expression than the performance.14 Therefore, though there was no direct

reference to the protection of performances, the same could be implied within the

fundamental rights regime.

The next development in the American Copyright law came with the adoption of the

1831 Amendment15 to the Copyright Act. It brought musical compositions under the

umbrella of protection. But there was nothing for the performing artists as it essentially

catered to the interests of the music composers who were subsumed within the

understanding of the term author. It was the 1856 Amendment 16 which formally

introduced protection for dramatic works such as operas and operettas and gave space

to the concept of performance. The meaning of performance that could be adduced

under the new amendment was:

13 Copyright Act, 1790, 1 Stat. 124. 14 The Constitution of United States, available at: https://www.whitehouse.gov/about-the-white-

house/our-government/the-constitution/ (last visited March 25, 2021). 15 Jeff Langenderfer and Steve Kopp, “The Digital Technology Revolution and Its Effect on the Market

for Copyrighted Works: Is History Repeating Itself?” 24 Journal of Macromarketing (2004) 16 Legislation U.S. Copyright Amendment Act, 1856, 11 Stat. 138.

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http://www.whitehouse.gov/about-the-white-





“An act composed with dramatic features and performed for profit in front of a

sophisticated audience or the general public.”17

Here the special emphasis was placed on three interrelated requirements. First,

performances with dramatic features only i.e., dramatic performances were covered.

Second, the profit motive became the essential pre-requisite keeping gratuitous and

other free-of-cost dramatic performances out of the purview. Finally, the need for the

most essential element of any performance i.e., the presence of the audience was

reiterated. However, despite all this, the performers of these dramatic works were

nowhere in the picture. The new provisions were introduced for the benefit of the

authors of the dramatic works, not their performers. Hence, the recognition of the

performing right and grant of the same to the authors of the underlying work did not

bring any beneficial change for the performers.

Within a year, the Congress felt the need to bring certain new changes into the domestic

copyright regime and introduced the concept of public performance in 189718. This

proved to be a significant breakthrough in the recognition of the public performance

rights of the authors. Even though the performers were kept out of the protective

umbrella, the acknowledgment of ‘performance’ as the subject matter of copyright was

a step in the right direction.

Later, the Copyright Act of 190919 reiterated the conditions for establishing the public

performance right, which included-

a. The performance must be presented before the audience (the requirement of

communication to the public)

b. The performance must be rewarded with monetary benefits (the profit motive

requirement)

The Act also introduced one additional requirement-

c. The performance must be licensed by the legislature (the license requirement)

17 Ibid. The first protection in the United States of any performing right for any type of work was granted

in 1856 when dramatic literary works - stage plays - were protected. See Act of Aug. 18, 1856, chap.

169, § 1. 18 Copyright Act (Public Performance of Musical Compositions), 1897, 29 Stat. 482. 19 35 Stat. 1075, 1909

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All three conditions applied with equal rigor to both dramatic and musical performances,

bringing both categories of performances on equal footing. By the time, the Copyright

Act of 1958 was adopted there have been many crucial developments in communication

technologies, though not as sophisticated as witnessed in the last quarter of the twentieth

century. The new Act defined ‘Public Performance’ as:

“An act of transmission from one person to another who is not a family member or a

close relative.”

The 1958 Act prioritized the element of transmission (communication) and the nature

of recipients (public in contrast to private members) and did not explicitly mention the

profit motive requirement. However, this does not mean that the performance was no

longer required to be for-profit or in exchange for a money consideration. It remained

an essential prerequisite, now implied within the communication to the public

stipulation. The new definition also clarified that transmission of the performance even

to a single individual who is not a part of the family or close relative of the person or

persons transmitting the performance can amount to communication to the public.

Hence, the term ‘communication to the public’ no longer denoted communication to

the public in general i.e., communication to several individuals.

Finally, it was the Copyright Act of 197620 which for the very first time defined

‘performance’ as a separate specific concept, independent of its public nature

requirement. Moreover, it also acknowledged the uncanny influence of the

developments in information and communication technologies over the meaning of the

term ‘performance’. The Act defined ‘Performance’ as:

“To perform means to recite, render, play, act, dance either directly or through any

device, and in the case of audio-visual performances, it can be in the form of pictures

in definite sequence accompanied with music or sounds.”

20 The Copyright Act of the United States, 1976, s. 101.

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Instead of specifying as to what it means to perform work, this definition relies more

on certain categories of activities that have generally been regarded as constituting the

art of performance. Dancing, acting, and playing a character in a stage play or an

instrument musical or otherwise before the audience has long been accepted as the most

prevalent forms of performances around the world, and hence, the definition by making

an explicit inclusion of them did not contribute much to the legal understanding of the

term performance. Moreover, by making the specific inclusion of recitation, the

definition has hinted on the point that in addition to the dramatic, musical, or dramatic-

musical works which generally form the subject matter of performance, literary works

can equally qualify as an appropriate basis of a performance, though of a limited stature

of recitation.

The 1976 Act has also given due consideration to the popular technological means used

to communicate the performances to the public and declared that the transmission of

the stated activities such as acting or dancing through modern technological apparatuses

very well falls within the meaning of the term performance. Besides, the discrete

endorsement of the audio-visual performances renders the definition all-encompassing.

In addition to the fact that the 1976 Act took a comprehensive view of the concept of

performance, it also took the efforts to provide meaning to following terminologies

which are widely used throughout the statute in specific relation to the performances of

the performers-

a. Audio-visual Performances: These types of performances are conveyed or

transmitted by using various devices such as projectors, electronic equipment

accompanied with sounds, or any technology such as films or tapes or any type in

which performances can be embodied and be shown to the general audience.21

b. Display: Any work which is shown to the public in a non-sequential manner with

the help of slideshow, film, television, or any device or process with or without any

sound will be qualified to be called the display.22

21 Audio Home Recording Act of 1992, Pub. L. No.102-563, 106 Stat. 4237. 22 Visual Artists Rights Act of 1990, title VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-

650, 104 Stat. 5089, 5128.

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c. Device: It means any machine or procedure which is known now and will develop

in the future.

d. Motion Pictures: They fall within the realm of audio-visual performances

consisting of images which when shown in succession with sounds if any, give a

sense of motion to the recipients.23

e. Sound recordings: It refers to the end product which is developed by recording all

kinds of sounds melodious or scattered through technological devices into a

tangible form such as disks, and tapes and does not include sounds accompanying

visual or audio-visual works. 24

ii. The Judicial Intervention

The American judiciary has a big contribution towards the development of copyright

and related right principles, whether it be the well-established fair use doctrine or the

idea of protecting the performers’ interests and investment-based activities such as

broadcasting or fixing of phonograms within the copyright regime. As to the meaning

of the term ‘performance’ in relation to performers’ rights, the following precedents

settle the law on point: -

Waring v. WDAS Broadcasting Station Inc.25

The contribution of Waring lies in establishing a universal test to identify protectable

subject matter under the concept of performance. It clarifies that any act or set of acts

that have been reproduced from an existing performance using a transfixed mechanical

process must fall out of the definitional understanding of the term performance. A

performance, as per the court, is the result of original labour and noble values, and there

exists a clear line of distinction between a literary work and its artistic performance.

23 Ibid. 24 An Act to make certain record rental provisions in title 17, United States Code, Copyright Act,

permanent, 1988, Pub. L. No. 100-617, 102 Stat. 3194 (extending for an additional eight-year period

certain provisions of title 17, United States Code, relating to the rental of sound recordings and for other

purposes). 25 27 Pa. D. & C. 297

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Fonotopia, Ltd. v. Bradle26

Fonotopia was another attempt of the American judiciary to elucidate the meaning of

performance. It provides that the most essential element of performance is the

application of intellectual labour, which may come from a particular performer or a

group of artists. Once this is certain, whatever may be the nature of a performance,

mode of its expression, or the quality of values conveyed, should not make much of a

difference.

Metropolitan Opera Association Inc. v. Wagner Nichols Recorder Corp.27

Opera Association adopted a comprehensive approach towards the conceptualization of

performance. It specified a few essential elements which indicate quiddities of a

performance-

a. An activity necessitating the use of skill and labour. Here the term labour must be

given a broader connotation i.e., the act must not necessarily be labour intensive in

the strict sense of the term. Labour here simply means moderate efforts, mental or

physical towards the final expression of work. It may be at the stage of rehearsals

or the main event or both.

b. There must be engagement and transmission of thoughts and expressions among

the artists.

c. Finally, the act must take its final shape which is to be presented before the target

audience.

Zacchini v. Scripps28

Zacchini took a technological take on the concept. It defined performance as-

An individual act or a set of activities that originate from the talent, energy, and expense

of the performing artists and are transmitted through the broadcasting means to the

general audience.

26 171 F. 951 (1909) 27 101 N.Y.S.2d 483. 28 433 U.S. 562, 97 S. Ct. 2849 (1977)

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Ettore v. Philco Television Broadcasting Corp29

Ettore took a very audience-centric view of the concept and provided that performance

is not just a planned presentation of well-synced actions before the general public.

Rather, only those representations which establish an emotional connection between

the artists and the audience deserve to be referred to as a performance in the true sense

of the term.

Baltimore Orioles Inc. v. Major League Baseball Players Association30

Baltimore has its share of following among the leading jurists and scholars around the

world, primarily for the reason that it defined performance as any action or activity

which is presented before an individual or a group of people in their immediate presence

(live) or through recording means. Based on this, Baltimore declared live or recorded

displays of sporting events to be performances within the meaning of the copyright law.

A. The British Take on Performances

The UK conceded copyrights over the performance only in the year 1925 with the

adoption of the Dramatic and Musical Performances Act 192531. It defined performance

as 'any dramatic or musical work consisting of sound recordings’.

The word ‘performance’ got recognition with the enactment of the Dramatic and

Musical Performances Act 192532. It defined the performance of a dramatic or musical

work as ‘an audible performance rendered through mechanical/electrical means or

otherwise. Later, with the appointment of the 33 Gregory Committee, the British

lawmakers got another opportunity to upgrade their copyright laws and bring necessary

changes to deal with rapid inventions in acoustic and digital technologies. The

Committee prepared a comprehensive report on the effectiveness of the 1925 Act and

the grey areas that need to be dealt with. The recommendations did go a long way to

make a case for an entirely new statute i.e., the 1958 Act. However, the new act adopted

29 126 F. Supp. 143 (1954) 30 805 F.2d 663 (7th Cor. 1986). 31 The United Kingdom Dramatic and Musical Performers' Protection Act, 1925. 32 Ibid. 33 HS Gregory, “Report of Copyright Committee” (1952).

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the definition of performance from the 1925 Act in the same terms. Hence, the concept

of performance remained limited to oral renditions.

The visual artists had to wait for another 30 years and with the adoption of the Copyright

Designs and Patents Act34 (CDPA) in the year 1988, the term ‘performance’35 under

the UK law now included not only the acoustic and musical performances but also

dramatic presentations including dance and mime, recitation of literary works, and

variety acts which are performed live either individually or as part of a group. Moreover,

the Act also moved beyond the ephemeral character of the performance and attempted

to bring the recordings of the performance under the umbrella of protection. The audio

recordings of the performances were to be protected as sound recordings and

visual/audio-visual recordings as films, and it did not make any difference if the live

performance itself was recorded or it was a copy of the already existing record or

broadcast of the performance.

It was no doubt a herculean effort on the part of the British Parliament to broaden the

purview of performers’ rights. The use of phrases such as ‘any act represented live’ in

the definition of performance depicts the comprehensive approach with which the

lawmakers dealt with the matter. The result was those unconventional forms of display

such as street plays, raps, and other modern mannerisms could all be protected. The

Whitford committee observed in the report36 that the lack of clarity and overlapping

interpretations proved distressing for jugglers, acrobats, magicians, clowns, and other

artists who could not take benefit of the statute. Similarly, the adjoining terms ‘similar

representations’ mentioned after the four different forms of renditions explicitly

included within the definition, left enough space for judicial dictums to make inroads

into the law.

Finally, and most importantly, the definition does not require the performance to be

original. The originality has been one of the basic perquisites of a copyright claim since

34 The United Kingdom Copyright, Designs, and Patents Act, 1988, c. 48. 35 The United Kingdom Copyright, Designs, and Patents Act, 1988, s. 182. 36 Sir John Norman Keates Whitford, Copyright and Designs law: Report of the Committee to Consider

the Law on Copyright and designs 105 (HM Stationery Office, 1977)

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Berne has not opted for performances. Performances, therefore, may be inspired or even

be a copy of an existing performance, subject to the rights of the performers of the

previous work and the authors of the underlying work on which the previous

performance is based. But the fact of it being a copy will not stop it from being

considered as performance under CDPA. Therefore, the definition of ‘performance’

under CDPA is of wide amplitude and greatly surpassed the idea of performances as

introduced under Rome. If the truth is told, it is much ahead of the same in the other

European counterparts.

The Swedish Approach and Performances

The Swedish Copyright law37 understands the term performance as:

‘An act or series of acts which portray dramatic, artistic or literary features and may

include theatrical plays and dance choreographies, etc'. Therefore, there must be an

element of drama and artistic creativity present to satisfy the definitional benchmark.

However, the Swedish law categorically excludes circus artists, athletes, impersonators,

magicians, and acrobats from the ambit of protection.

B. The Finnish Stand

Performance38 under the Finnish Copyright Act 201539 has been indirectly delineated

in Section 1 to mean: ‘Formation or creation of a literary or artistic work in writing or

speech, in musical or dramatic format. The result may be a photographic or

cinematographic work or a work of architecture or handicraft or any work expressed in

any other form.’ Even though the Finnish copyright law does not provide for the

definition of the term ‘performance’, the meaning that has been attributed to it doesn’t

set the standard to be unnecessarily high for a rendition to be protected.

37 Copyright in Sweden, available on: https://www.lexology.com/library/detail.aspx?g=2b8145b5-a80b-

4a19-9d8d-a42b2131f96c (last visited on March 26, 2021). 38 World Intellectual Property Organization, “Standing Committee on the Law of Patents, Thirtieth

Session” (June 2019). 39 Copyright Act (404/1961, amendments up to 608/2015), available on:

https://www.finlex.fi/en/laki/kaannokset/1961/en19610404.pdf (last visited on March 26, 2021).

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C. The French System

The French Copyright Law defines ‘Performance’ as:

“An act or a set of activities which may include live dramas, musical renditions, dance

choreographies, recitals of literary pieces, the narration of stories, and expressions of

folklore. The domain of performances is so vast under French Law that it even covers

not-so-sophisticated forms of presentations such as performances of artists working in

a circus and other points of entertainment.

D. The Spanish Slant

The Spanish copyright law traces its origin to the French copyright system. The efforts

of Victor Hugo towards internationalization and universalization of the protection of

the literary and artistic work have had a great influence on its future course. The

Copyright Code was adopted in the year 1879 to which the latest amendment was made

in 2018. The Royal Legislative Decree 1/199640 explicates the concept of performance

as:

“All sorts of presentations including singing, dancing, recitation of a poem,

narration of a story or any other activity accompanied by spoken words or

physical acts.”

Moreover, there is an explicit requirement of communication to the public before a

rendition could be said to be performed under the Spanish Copyright Law.

E. The Austrian Stance

The development of the Austrian Copyright regime has been full of hiccups and

controversies. The dilly-dally attitude of the Austrian lawmakers and general dislike

towards an international influence kept Austria out of Berne until 1908 when it was

forced to opt for the same under immense international pressure.41

40 Licensing in Spain, available at: https://www.lexology.com/library/detail.aspx?g=805cfea5-7e43-

4b88-94b0-5f13d32970f3. (last visited on March 26, 2021). 41 Copyright laws in Austria, available at:

https://www.literaturhauseuropa.eu/en/topics/articles/copyright-laws-in-austria-urheberrechtsgesetze- in-

osterreich (last visited on March 20.2021).

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The reigning law contained in the Copyright Act in Works of Literature, Arts and

Related Rights mentioned in the Federal Gazette I No. 99/201542 defines performance

as:

“A presentation given by dancers, musicians, actors or performers of literary

works before the target audience”.

The Austrian connotation is very restrictive in the sense that the designation of the

individual involved attains the primary importance in determining the nature of the final

work. Moreover, the Austrian copyright law is very specific in pointing out that

performances cannot be covered under the domain of creativity for the reason that they

are a mere means of displaying the creativity of the author of the underlying work,

instead of being a product of creativity itself.

F. The Italian Perspective

The Italian Copyright Statute conceptualize performances43 as:

“A visual or audio-visual representation by an individual or a group of artists”.

It is one of the most liberal interpretations of the term ‘performance’ that one may come

across especially among the EU member states. There is no precondition of any specific

form of the presentation e.g., musical, or dramatic, or a designated performer e.g.,

dancer or singer. Moreover, much emphasis has been placed on the fact that the domain

of performance under Italian law includes cinematographic, photographic, and other

modern modes of expression.

.

G. The Greek Panorama

The Greek Copyright law 44 understands performances as:

“An act which is conveyed or communicated through speech or physical actions

to entertain, educate or generate awareness among the audience”.

42 AEPO ARTIS, “Performers’ Rights in International and European Legislation: Situation and Elements

for Improvement” (December 2014), available at: https://www.aepo-artis.org/usr/files/di/fi/2/AEPO-

ARTIS-study-on-performers-rights-1-December-2014-FINAL_201611291138.pdf (last visited on

March 26, 2021). 43 Italian Copyright Statute, Law for the Protection of Copyright and Neighbouring Rights, 1941, s. 15. 44 Copyright in Greece, available at: https://www.lexology.com/library/detail.aspx?g=8766adb5-874f-

485c-b7f7-4a5c45b4490b (last visited on March 20,2021).

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This definition is broad enough to include all varied forms of performances such as

singing, dancing, and more unconventional examples as rapping and stand-ups. Besides,

a liberal interpretation of the terms conveyance and communication tends to cover

renditions via technological means.

H. The Belgian Outlook

Though the Belgian Copyright Law does not contain the definition of the term

performance, the interpretation can be drawn from Article XI.212 of the Belgian Code

on Economic Law 45 which indirectly defines the term performance as:

“Any work which includes acting, dancing or depiction of other relatable skills

which act as the mode of communicating ideas and beliefs’ will be qualified to

be called as performance”.

I. The Dutch Law

In the Netherlands, the definition of performance is construed under the Copyright Law

of 2015. This law is the result of many amendments which were brought to define the

term more appropriately which can be suited to present conditions. The Copyright Law

of 201546 defines performance as:

“Any act which includes artistic works such as films, cinematographic work

accompanied with additional sound or music will be qualified to be called a

performance.”

J. The Portuguese lookout

The 2008 amendment to the Copyright Act47 of Portugal provides for certain examples

of works that are covered within the meaning of the term 'performance'. They included:

A work consisting of drama and additional music,

Works of mime or dance choreographies expressed or written in any form,

Musical compositions with or without sound,

Visual or audio-visual works forming part of cinematographic film, televised

shows, radiophonic pieces, etc,

45 Copyright in Belgium, available at: https://www.lexology.com/library/detail.aspx?g=8b8075c3-0b31-

4655-b08c-0b1912541c02 (last visited on March 20,2021). 46 Copyright in the Netherlands, available at:

https://www.lexology.com/library/detail.aspx?g=560596f0-069d-49bc-ae51-1feba07b3d4b (last visited on Feb 15, 2021). 47 European Parliament, “Copyright Law in the EU: Salient Features of Copyright Law across the EU

Member States” (June 2018).

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Works consisting of drawing or other arts expressed in any form,

Photographic works, moving slideshows with additional music.

This approach has brought mixed results. While it provides certainty as to the fate of

works that are specifically mentioned in the list, it is a troublesome task to adjudge

some of the other similarly placed works.

K. The Irish Blend

Ireland is the third-largest European country, which determines the fate of a large

number of performing artists. The Irish Copyright Act of 20048 defines ‘performance’

as: “Any act which is capable of being recorded or which can be broadcasted will be

called as performance”. In simple words, it can be said that the act which can be kept

in the form of recording which can be shown to the public by using broadcasting

organizations will be covered under the domain of performances.

L. The Hungarian Postulation

The Hungarian Law defines performance in Act No. LXXVI of 199949 as:

“An act of presentation by an individual or a group of artists in a theatre or concert

and includes oral recitation and narration”.

M. The Slovakian Silence

The Slovakian Copyright Act of 201550 does not contain an explicit definition of the

term ‘performance’. However, having regard to the other related provisions of the

statute, the same could be understood as:

A theatrical work consisting of dramatic features with or without music,

A pantomimic work,

Staged dance choreography or other choreographic works, and

Other artistic presentations requiring a specific skill.

48 Copyright and Related Rights Act 2000,

available at:

http://www.irishstatutebook.ie/eli/2000/act/28/enacted/en/html (last visited on Feb 15, 2021). 49 Act No. LXXVI of 1999 on copyright, s.1. 50 Martin Husovec, Slovakia adopts a new Copyright Act: It’s a Mixed Bag – Part I, Kluwer Copyright

Blog, Feb. 29, 2016, available at: http://copyrightblog.kluweriplaw.com/2016/02/29/slovakia-adopts-a-

new-copyright-act-its-a-mixed-bag-part-i/ (last visited on Feb 15, 2021)

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http://www.irishstatutebook.ie/eli/2000/act/28/enacted/en/html

http://copyrightblog.kluweriplaw.com/2016/02/29/slovakia-adopts-a-new-copyright-act-its-a-mixed-bag-part-i/

http://copyrightblog.kluweriplaw.com/2016/02/29/slovakia-adopts-a-new-copyright-act-its-a-mixed-bag-part-i/


53 Ibid.


N. The Croatian Know-how

Croatia is located in Central Europe. Here the definition of performance is mentioned

in its Copyright and Related Rights law. This law has been amended many times since

its inception. The recent Copyright and Related Rights law was published in the Official

Gazette of the Republic of Croatia No. 127/2014 on October 29, 201451 as Copyright

and Related Rights Act incorporating all the provisions according to the digital world.

The definition of ‘performance’ according to this act is:

“Any act which includes artistic works such as musical works with or without

words, or any choreographic work or pantomime, or any work of visual arts

accompanied with music and communicated to the public will be qualified to be

called as performance”.

O. The Indian Uniqueness

India is known for its cultural diversity, and performing arts such as traditional dance

forms, lok geets, nukkad nataks have been playing a crucial role in keeping this image

alive. The propagation and promotion of the Indian cultural heritage remained the

driving force behind the emergence and sustenance of the performing arts in this

country until very recently.

Surprisingly, in India, the term ‘performance’ had a negative connotation for the reason

that ancient Indian history portrayed performing artists as people who entertained the

royal courts in anticipation of royal patronage and money. However, with the

formalization of the entertainment industry and a multi-fold rise in the popularity and

accessibility of stage plays, musical concerts, and movies, the performing artists and

their renditions attained rightful regard and respect in society.

In India, the first copyright law52 was adopted in 1914. It took its inspiration from the

English Copyright Act of 1911 53 . There was no provision in the statute for the

51 Copyright and Related Rights Act and Acts on Amendments to the Copyright and Related Rights Act,

2003 (OG Nos. 167/2003). 52 Charul Tripathi, "India: Historical Development of Law of Copyright", Mondaq – Connecting

Knowledge and people, 25 August 2020,

available at: https://www.mondaq.com/india/copyright/978858/historical-development-of-law-of-

copyright (last visited on Feb 15, 2021)

118

https://www.wipo.int/wipolex/en/details.jsp?id=15476




https://www.mondaq.com/india/copyright/978858/historical-development-of-law-of-copyright

https://www.mondaq.com/india/copyright/978858/historical-development-of-law-of-copyright



protection and rights over the performances. The Copyright Act of 1957 then became

the first truly indigenous copyright statute of independent India. Though the 1957 Act

did not explicitly define performance, the interpretation of the other related

terminologies helped in deciphering its meaning. They included-

Communication to the public54 has been defined as a work or performance

which can be accessed by the general public directly or utilizing display or

diffusion.

Cinematographic film55 is defined as a work of a visual recording with or

without sounds.

Broadcast (dd) includes wired or wireless diffusion of signs, sounds, or visual

images.

Dramatic work (h) may include reciting, acting, choreography, and other

activities utilized for public entertainment purposes.

Musical work is a work that consists of music and includes graphical notations

also.

All these definitions provided meaning to the essential components of a performance.

However, the need for statutory clarification was repeatedly felt and it was in 1994 that

the Indian Parliament decided to specify the law on point. The 1994 amendment to the

Copyright Statute brought major changes in the area of related rights specifically

performers’ rights. It defined performance as:

“Any visual or acoustic presentation made live by one or more performers”.

This definition is broad enough to cover many unconventional forms of renditions. It

tends to protect both visual and musical performances, however on the first impression,

one may deduce that the use of ‘or’ between the terms 'visual' and 'acoustic' indicates

non-inclusion of a performance that has both visual and acoustic elements.

Here, one needs to reinstate the basic principle of the interpretation of statute i.e., no

part of a statute must be read and understood in isolation. The categories of artists that

are specifically mentioned within the definition of the term ‘performer’, which was also

adopted by the 1994 Amendment Act, clearly establish the fallacy of the above

54 The Copyright Act, 1957 (Act no. 14 of 1957). 55Ibid.

119



argument. The inclusion of actors, dancers affirm the fact that the definition of

performance is all-encompassing. Moreover, the number of artists contributing towards

the final performance is irrelevant. Performance can be of an individual performer or a

group of performing artists.

Concluding Remarks

After a deep analysis of all the definitions and explanations provided of the term

‘performance' in the above-noted countries, the present researcher has concluded that

there are essentially three components that together constitute a ‘performance’. Firstly,

there must be a performer, the individual who will indulge in a set of visually or aurally

expressive activities. Second come the audience, the group of individuals who are the

recipients of these renditions at the hands of the individuals mentioned in the first

component. Finally, the first two components i.e., the performers and the audience must

also interact with each other, in other words, a direct connection must be established

between the two groups, the performers and the group forming the audience. The

consequence of this interaction can confidently be referred to as a ‘performance’. Hence,

it is not just the performers or the specific set of activities such as dancing or singing

that bring performance into existence, but the presence of the audience, either

immediate, in a theatre or remote through television broadcasts or webcasts is equally

important.

120



Analysing the Ethical Aspect of Genetic Modification of Livestock in India

Adv. Rahul D. Gangurde And Sanjana Bharadwaj

ABSTRACT

After the tremendous response from the Genetic Food market, the focus has shifted from plants to

animals. Researchers around the globe glorify the need for genetic modification of livestock so as to

have customised things from animal products. Genetic modification (GM) is not nascent in the

animal industry and has been in use since Pasteur’s time. Undertaking GM with regard to animals

is not easy. Regulatory practices all around the globe are stringent, and few of them ban such genetic

modification. Although there is no law in India presently regulating animal gene modification, it

certainly won’t be illegal if gene experimentation takes place. In this analysis, an attempt is being

made to understand the ethical consideration of Genetic modification of livestock. The focus is

largely on the impact of such modifications on the animals and the use of scientific techniques

undertaken to do the genetic modification. It shall consider the international conventions and

deliberate on the need for genetic modification.


Introduction

The dividing block between animals, plants and humans are the Deoxyribonucleic acid, DNAs

of an entity that distinguishes one organism from another. DNA is hereditary material found in

every plant, animal and humans. They form the genetics of the organism and are transmitted

from one generation to another generation1. There are certain animals which share the same

DNA as that of humans. That is the reason they have been used so frequently for chemical tests

and other reaction tests. Humans share 98.8% DNA of the Great Ape, monkeys about 93%,

Mice 90%, Dogs 84% and chickens 84%2. Gene modification of the animals is done when these

DNA’s are altered, and DNA of another organism is added. Through that manner, the DNA of

the original animal gets completely changed.

The Royal Society, in its study, has established/ various reasons for the intended purpose of

genetic modification. These include3:

Academician - Department of Law, Savitribai Phule Pune University, Pune, Maharashtra - India. Ph.D. Scholar, NALSAR University of Law, Hyderabad, Telangana - India. 1What is DNA? Genetics Home Reference, available at: https://ghr.nlm.nih.gov/primer/basics/dna (last visited on 26th September, 2018) 2Animals that share Human DNA Sequences, available at: https://education.seattlepi.com/animals-share-human-

dna-sequences-6693.html (last visited on 18th June,2021) 3Alphey – The use of genetically modified animals, available at: https://royalsociety.org/~/media/Royal_Society_Content/policy/publications/2001/10026.pdf (last

visited on 18th June,2021)

121

https://ghr.nlm.nih.gov/primer/basics/dna

https://education.seattlepi.com/animals-share-human-dna-sequences-6693.html

https://education.seattlepi.com/animals-share-human-dna-sequences-6693.html

https://royalsociety.org/~/media/Royal_Society_Content/policy/publications/2001/10026.pdf



1. To research on the diseases which can be contracted by humans

2. To produce consumer goods (fibre and other purposes)

3. To create hypo-allergic pets to enhance animal interaction with humans.

4. To enhance the production or food quality traits (cow producing more milk, faster-

growing fish etc.)

5. For improving animal health and making them resistant to diseases

6. To produce products for therapeutic use (pharmaceutical products or membrane for

implantation)

Various animals have been used recklessly by organisations in the name of improvising science

and giving it a boost up, but rather it is a mockery of nature. Although not all gene modification

is to be repudiated, there are still live examples which illustrates the reckless use of money,

time and energy in varying the genes of animals. For instance, scientists in Russia are looking

at splicing human genes into the mice and getting the mice to produce milk containing

lactoferrin, a naturally occurring protein in humans that provides bacterial and fungal

protection and lacks artificial formula. The scientists want to expand the research into other

animals like goats and cows, which produce milk4. Mutation of goats with spider which has

been altered to include DNA which provides curious milk that can be dried and spun into

spider-like silk5.

Scientists in China and UK have genetically modified pigs to produce 24% less fat than normal

pigs6. This was done by inserting a gene in the pig, which enables them to regulate their

temperature and burns fat7. Through this manner, there is a decrease in the fat percentage. This

took the researchers a period of seven years. Out of the 33 piglets which were born, only 8

4Twelve extreme animal modifications in the name of science, available at:

https://www.popsci.com/science/article/2010-11/ten-ways-scientists-are-customizing-animals (last visited on

21st June,2021) 5 Id. 6Bacon may have just got healthier available at: http://www.independent.co.uk/life-style/health-and-families/gm-

pigs-less-fat-bred-scientists-genetically-modified-meat-a8018641.html (last visited on 20th June, 2021) 7 Id.

122

https://www.popsci.com/science/article/2010-11/ten-ways-scientists-are-customizing-animals

http://www.independent.co.uk/life-style/health-and-families/gm-pigs-less-fat-bred-scientists-genetically-modified-meat-a8018641.html

http://www.independent.co.uk/life-style/health-and-families/gm-pigs-less-fat-bred-scientists-genetically-modified-meat-a8018641.html



survived8. Scientists in New Zealand, genetically engineered a cow which does not produce

the whey protein, BLG9.

Gene modification requires tonnes of investment and is time-consuming. We aren’t even sure

if the result will materialise. Dolly, the first sheep, was modified by way of cloning for

producing genetically modified livestock. Scientists also wanted to learn during

experimentation how skin or brain neurons could be used to create a new animal. Her cloning

involved a cell used from Finn Dorset sheep (mammary gland) and an egg cell taken from a

Scottish Blackface sheep10.

According to Food and Agriculture Organisation, 9.5% of the emission of methane is being

attributed to the fart of cows. Scientists at Pennsylvanian State University are considering

genetically modifying the bacteria in cow guts, which will let the farmers focus on maintaining

the cows that live long and ensuring that fewer cows die11.

Glo-fish is an aesthetically rich fish in which the composition of the fish was changed, and

florescent colours were added during the embryonic stage. As the embryo would develop, the

fish would have all the features of a regular fish but would be florescent in appearance. They

are very appealable, and their sale in the US rapidly increased. But there’s another deception

in their appearance; many Glo-fish would die if they were brought to home from the store12.

Many would also die if there is any change in the temperature and water. Although Glo-fish

was genetically modified, it could not adapt in a new environment13.

AquAdvantage salmon is considered one of the most successful gene mutations in which gene

forms a Pacific Chinook salmon and ocean pout were added to the Atlantic salmon’s 40,000

8The Superpowers of genetically modified pigs, available at: https://www.the-scientist.com/notebook/the-

superpowers-of-genetically-modified-pigs-64513 (last visited on 18th June,2021) 9Ian Sample & science correspondent, GM cow designed to produce milk without an allergy-causing protein,

available at: https://www.theguardian.com/science/2012/oct/01/gm-cow-milk-alllergy-protein (last visited on

22nd June,2021) 10 The life of Dolly, Available at: https://www.ed.ac.uk/roslin/about/dolly/facts/life-of-dolly (last visited on 26th

Deptember,2018) 11 Canada is using genetics to make cows less gassy, Available at: https://www.wired.com/story/canada-is-using-

genetics-to-make-cows-less-gassy/ (last visited 23rd June, 2021) 12 R/Aquarium – Neon Goldfish Dying in new tank, Available at:

https://www.reddit.com/r/Aquariums/comments/18spvp/neon_glofish_dying_in_new_tank_details_in/ (last

visited on 23rd June,2021) 13 Id.

123

https://www.the-scientist.com/notebook/the-superpowers-of-genetically-modified-pigs-64513

https://www.the-scientist.com/notebook/the-superpowers-of-genetically-modified-pigs-64513

https://www.theguardian.com/science/2012/oct/01/gm-cow-milk-alllergy-protein

https://www.ed.ac.uk/roslin/about/dolly/facts/life-of-dolly

https://www.wired.com/story/canada-is-using-genetics-to-make-cows-less-gassy/

https://www.wired.com/story/canada-is-using-genetics-to-make-cows-less-gassy/

https://www.reddit.com/r/Aquariums/comments/18spvp/neon_glofish_dying_in_new_tank_details_in/



genes, which enable it to grow around the year instead of during spring and summer14. It is

considered to be the first animal that is considered to be fit for human consumption. This was

done so as to the fish grows without affecting the size and the quantity. The fish size increases

in a short span of time, around 3-4 weeks instead of 18 months15. The experiment took around

20 years to bring the fish to the market. The eleven-member of the FDA could not determine

the impact of bred salmon on the health of the consumer and the environment16. The only

conclusion which they came was with regard to the expenses which are to be incurred in its

breeding and also the regulation of the health of the salmon, as they are comparatively weaker

than a salmon17. Many independent studies carried observed that the fishes were safe for human

consumption18. AquAdvantage salmon is one of the most used Genetically modified organisms

for human consumption19. There have been no studies which showcase the negative impact of

GM on the life of a human.

Ethical Consideration of Genetically Modified Animals

Jeremy Bentham’s Theory of Utilitarianism is considered to be the foremost in jurisprudence.

The theory contends that any action is permissible when it produces a greater amount of

happiness in society. However wrong may the action be, the good which the act brings should

be encouraged by the people.20 Considering the situation of animals all around the globe, they

are still considered to be ‘goods’ or ‘chattels’ which can be traded by the people and which

would do exactly as what is perceived by the man.

The ethical consideration of the animal moves from the duty of the people in recognising the

animal as an organism capable of judging itself and deciding what is good for the health of the

animals. As Rukmani Devi would say, “Animals cannot speak, but can you and I not speak for

them and represent them? Let us all feel their silent cry of agony and let us all help that cry to

14Robert N. M. Ahrens & Robert H. Devlin, Standing genetic variation and compensatory evolution in transgenic

organisms: a growth-enhanced salmon simulation, 20 TRANSGENIC RESEARCH 583–597 (2011) 15 Our Salmon Aqua Bounty Technologies, Available at: http://aquabounty.com/our-salmon (last visited on 26th

September, 2018) 16FDA Panel Unable to reach conclusion on genetically altered salmon, Available at:

https://abcnews.go.com/Health/WellnessNews/fda-unable-reach-conclusion-genetically-modified-

salmon/story?id=11682586 (last visited on 22nd June,2021) 17 Id. 18 Id. 19Company says FDA is nearing decision on genetically engineered Atlantic salmon, Available at:

http://www.washingtonpost.com/wp-dyn/content/article/2010/08/01/AR2010080103305.html (last visited on

22nd June,2021) 20The History of Utilitarianism, Available at: https://plato.stanford.edu/archives/win2014/entries/utilitarianism-

history/ (last visited 22nd June,2021)

124

http://aquabounty.com/our-salmon/%20(last%20visited%20Sep%2026%2C%202018)

https://abcnews.go.com/Health/WellnessNews/fda-unable-reach-conclusion-genetically-modified-salmon/story?id=11682586

https://abcnews.go.com/Health/WellnessNews/fda-unable-reach-conclusion-genetically-modified-salmon/story?id=11682586

http://www.washingtonpost.com/wp-dyn/content/article/2010/08/01/AR2010080103305.html

https://plato.stanford.edu/archives/win2014/entries/utilitarianism-history/

https://plato.stanford.edu/archives/win2014/entries/utilitarianism-history/



be heard in the world”21. People for Ethical Treatment of Animals (PETA) spells out that 90%

of the animal tests that go around in the world cause no benefit either to the research or the

animal community22. The report also suggests that The National Institute of Health spends 12

billion dollars every year for research which goes waste23. The amount of money spent on

research and testing ranges from 115.3 million to 126.9 million on non-vertebrate animals24.

The Genetically modified plants also created a spur when they were introduced. Europe was

against the method of employing biotechnology, but apparently, after a WTO decision, it

decided to regulate the trade of GM food. Although the GM food may cause higher yields, the

impact on the health and environment cannot be ignored25. The GM soy caused an allergic

reaction to the people who consumed it. There is no way in which we can determine the impact

of GM food on a person’s body26. Hence, it creates more problems to people who eat only a

variant of food. A similar application can also be made for the GM animals. Although there is

no research available determining the impact of these animals on the environment and the

people, this might create a situation in the future if GM animals are used as food. When GM

Potato variant was checked on rats, the rats died after ten days owing to organ damage27. An

independent study studied by a Harvard student, after monitoring for 20 years, has concluded

that GM food may not cause alteration of DNA of humans28, but the same has not been proved

for the animals.

Genetic modification of cows has also been proven to be successful. In China, the cloning of

two cows has resulted in spicing up the flavour of the beef. The money spent on the milk used

21 Rukmini Devi Arundale Quotea-Z Quotes, Available at: https://www.azquotes.com/quote/587445 (last visited

on 15th June, 2021) 22 This AD Spells it out: Animal Tests are going Nowhere, Available at: https://www.peta.org/blog/experiments-

on-animals-fail-90-of-the-time-why-are-they-still-done/ (last visited on 21st June,2021) 23 Id. 24 Animal Research is Hazardous Waste, Available at: https://www.neavs.org/campaigns/environment (last

visited on 22nd June, 2021) 25 Genetically Engineered foods may cause rising food allergies (Part One), Available at:

https://responsibletechnology.org/genetically-engineered-foods-may-cause-rising-food-allergies-part-one/

(last visited 18th June, 2021) 26Eliot M. Herman, Genetically modified soybeans and food allergies, 54 JOURNAL OF EXPERIMENTAL BOTANY

1317–1319 (2003) 27 Will GMOs Hurt my Body? The Public’s concerns and how scientists have addressed them, Available at: http://sitn.hms.harvard.edu/flash/2015/will-gmos-hurt-my-body/ (last visited 17th June,2021) 28 Id.

125

https://www.azquotes.com/quote/587445

https://www.peta.org/blog/experiments-on-animals-fail-90-of-the-time-why-are-they-still-done/

https://www.peta.org/blog/experiments-on-animals-fail-90-of-the-time-why-are-they-still-done/

https://www.neavs.org/campaigns/environment

https://responsibletechnology.org/genetically-engineered-foods-may-cause-rising-food-allergies-part-one/%20(last%20visited%2018th%20June%2C%202021)

http://sitn.hms.harvard.edu/flash/2015/will-gmos-hurt-my-body/



for feeding the calves is around 7,000 yuan ($1101.1)29. The scientist also noted the fact that it

will around ten years to know the impact of the use of biotechnology on the human life30.

The process by which animals undergo genetic modification has a larger health impact on the

animals. Many of the animals die, and the surgery or the procedure may not be very successful.

When Dolly was cloned, researchers found out that there were more harms than benefits when

cloning animals. Their development is delayed; lung infection, hormonal imbalances and

strokes are the common animosities which these animals suffer from31.

Scientists do a lot of trial and error in creating a model by replacing the gene of an animal. For

example, researchers may assume that removing a receptor gene for thrombin (a blood-clotting

enzyme) in mice will affect their control of blood coagulation, but only by creating the animals

can they discover that such a deletion causes half of the altered embryos to bleed from multiple

sites so that they die in the womb32. This might not create any benefit, but rather a lot of

resources are wasted when it does nothing substantial for improvement of the living condition

of animals.

Since there is no surety that any gene modification of the animal would cause a difference to

the people, the scenario may be altered when chemical testing of the animal takes place, and

humans consume the same. Chemicals used on animals would certainly impact the life of the

humans too. The chemicals used by the companies in research are used for various steps in the

process like: sanitation, sterilisation, animal care, analgesia, anaesthesia, euthanasia, and

research and testing procedures33.

Thus, this causes a dilemma for understanding the ethical aspiration of genetically modified

animals. The first international agreement on the protection of animal rights was the Universal

Declaration on Animal Rights which affirms the view that the animals are sentiment beings

29 GM Calves bred to beef up flavour, Available at: http://www.globaltimes.cn/content/726991.shtml (last visited

on 18th June, 2021) 30 Id. 31Gina Kolata, Researchers Find Big Risk of Defect in Cloning Animals, Available at:

https://www.nytimes.com/2001/03/25/world/researchers-find-big-risk-of-defect-in-cloning-animals.html (last

visited June 20, 2021) 32Animals and Genetic Engineering – Unlimited Cruelty, Available at: https://www.all-creatures.org/articles/ar-

animalsandge.html (last visited June 20, 2021) 33 Supra note 20

126

http://www.globaltimes.cn/content/726991.shtml

http://www.nytimes.com/2001/03/25/world/researchers-find-big-risk-of-defect-in-cloning-animals.html



https://www.all-creatures.org/articles/ar-animalsandge.html

https://www.all-creatures.org/articles/ar-animalsandge.html



and their welfare is necessary34. The Supreme Court of India also affirmed the need of the Right

to life in the case of Animal Welfare Board of India vs. A. Nagaraja35. The Apex Court held

that ‘every species has a right to life and security.’

“Article 21 of the Constitution, while safeguarding the rights of humans, protects life

and the word “life” has been given an expanded definition and any disturbance from

the basic environment which includes all forms of life, including animal life, which

are necessary for human life, fall within the meaning of Article 21 of the Constitution.

So far as animals are concerned, in our view, “life” means something more than mere

survival or existence or instrumental value for human beings, but to lead a life with

some intrinsic worth, honour and dignity.”

The court also stressed on the need of Article 51A(g)36 and (h)37 , which casts a duty on

every person to have compassion.

Position in USA and EU

Genetically modified animals are not banned in the US. Their philosophy is that animal health,

safety and other regulations should be regulated and complied with rather than the process by

which they come. GMO’s in the US are favourable to the economy as it is an essential

component of the biotechnological industry38. With respect to animals, the Food and Drug

Administration (FDA) regulates the New Animal Drugs (NADs). A NADA for a GE animal

must include information on the animal’s identification; chemistry; clinical purpose; labelling;

components and composition; manufacturing methods, facilities, and controls; safety and

effectiveness; environmental impact; and other information. In the European market, the GM

animals are not allowed to be imported and cannot be produced in the country. But the trend is

now changing. The European Food Safety Authority (EFSA) has published its guidance report

in 2013, where it would be checked on to place GM animals in the EU market. The

Environmental Risk Assessment, which is undertaken, involves the collection, generating

34 Universal Declaration of Animal Welfare,

Available at: https://www.globalanimallaw.org/database/universal.html (last visited on 18th June,2021) 35Civil Appeal No. 5387 of 2014 36 Article 51A(g) of the Constitution of India, 1950 reads as: to protect and improve the natural environment

including forests, lakes, rivers and wild life, and to have compassion for living creatures; 37 Article 51A(h) of the Constitution of India, 1950 reads as: to develop the scientific temper, humanism and the

spirit of inquiry and reform; 38Restrictions on genetically Modified Organisms: United States,

Available at: https://www.loc.gov/law/help/restrictions-on-gmos/usa.php (last visited on 18th June,2021)

127

https://indiankanoon.org/doc/1199182/


https://www.globalanimallaw.org/database/universal.html

https://www.loc.gov/law/help/restrictions-on-gmos/usa.php



information of a GM animal, impact on the environment, impact on the health of the animal as

compared to non-GM animals39.

Does Section 3 of The Prevention of Cruelty to Animals Act (PCA) contain genetically

modified animals?

Section 3 of the PCA, 1960 reads as:

“It shall be the duty of every person having the care or charge of any animal to take all

reasonable measures to ensure the well-being of such animal and to prevent the infliction

upon such animal of unnecessary pain or suffering”.

Since the Act came in the year 1960, genetically modified animals were not anticipated, nor

has there been any amendment yet in the definition. Since the definition talks about ‘any

animal’, it is construed to also include genetically modified animals though there is no

interpretation of the same by any High Court or the Supreme Court. It is also submitted that

the decision by the Nagaraja judgement will also extend in giving protection to the GM

animals.

Legal Framework on Genetically Modified Food in India

The Cartagena Protocol on biosafety provides safe handling, transfer and use of the GM

organisms of the genetically modified organisms was signed by India. It provides for the

sheltered treatment of the genetically engineered or modified organisms. It is in addition to the

United Nations Biodiversity Convention signed at Rio de Janeiro on 29th of June 1992, which

came into force on 29th of December 1993. Its aim is the conservation and sustainable use of

biological diversity.40 According to the Principle 15 of the Rio Declaration on Environment

and Development, 1992, new technologies and innovations must be founded on the

Precautionary Principle, which is basically a new guideline that is used in the process of

deciding in relation to the environment.41

Despite the fact that the Genetic Engineering Approval Committee has guidelines and protocols

for testing the safety of genetically modified crops, but none exists for genetically modified

animals.42 There is no regulation in India relating to the genetic modification of livestock. A

39EFSA Panel on Genetically Modified Organisms (GMO), “Guidance on the environmental risk assessment of

genetically modified animals: Guidance Document on the ERA of GM animals “, 11 EFSA JOURNAL 3200 (2013) 40Ashwini Siwal, “Genetic Technology and Regulatory Regime in India", Available at: http://www.journal.lex-

warrier.in/2012/05/13/genetic-technology/ 41The Precautionary principle in environmental science, Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240435/ (last visited on 18th June, 2021). 42 Ibid.

128

http://www.journal.lex-warrier.in/2012/05/13/genetic-technology/

http://www.journal.lex-warrier.in/2012/05/13/genetic-technology/

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240435/



protocol is a set of guidelines that detail how field trials must be conducted. They elaborate on

which tests must be conducted and what bio-safety aspects must be accounted for.

The World Health Organisation defines GMO as:

“GMOs are organisms (plants, animals or microorganisms) in which the genetic material

(deoxyribonucleic acid or DNA) has been altered so that it does not occur naturally by

mating and/or by natural recombination”.

They are produced as a result of genetic engineering technology, also known as ‘modern

biotechnology’ or ‘recombinant DNA technology,’ which allows the transfer of selected

individual genes from one organism to another as well as between organisms of non-related

species such as the transfer of genes from bacteria to a plant.43 Therefore, the term genetically

modified organisms include genetically modified animals as well as livestock. Hence, the laws

relating to the genetic modification of the organisms have been dealt with.

Rules for Manufacture, Use, Import, Export and Storage of Hazardous

Microorganisms/Genetically Engineered Organisms or Cells, 1989:44Genetically Modified

Organisms in India are governed by these Rules. They are framed under Sections 645, 846 and

2547 of the Environmental Protection Act, 1986. These Rules are enforced by the following

organisations:

Ministry of Environment and Forests

Department of Biotechnology of the Ministry of Science and Technology

Non- compliance and violation of the Rules, 1989 attract punishment under the Environmental

Protection Act, 1986. These Rules provided for the establishment of six authorities for the

implementation of these rules:

43World Health Organization. 2014 : Frequently asked questions on genetically modified foods, available at:

http://www.who.int/foodsafety/areas_work/food-technology/faq-genetically-modified-food/en/ (last visited on

June 18, 2021). 44Notification 5th December, 1989; Ministry of Environment & Forests, available at:

https://moef.gov.in/en/project-approvals/geac-clearances/genetic-engineering-appraisal-committee-geac- clearances-notification-archieve/ 45Section 6: Rules to Regulate Environmental Pollution; Environmental Protection Act, 1986. 46Section 8: Persons Handling Hazardous Substances to Comply with Procedural Safeguards; Environmental

Protection Act, 1986 47 Section 25: Power to Make Rules; Environmental Protection Act, 1986

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http://www.who.int/foodsafety/areas_work/food-technology/faq-genetically-modified-food/en/

https://moef.gov.in/en/project-approvals/geac-clearances/genetic-engineering-appraisal-committee-geac-clearances-notification-archieve/

https://moef.gov.in/en/project-approvals/geac-clearances/genetic-engineering-appraisal-committee-geac-clearances-notification-archieve/



Recombinant DNA Advisory Committee (RDAC):48 The Committee functions as an

advisory body reviewing the advancements in biotechnology at national and

international level and suggests safety regulations for the same in India to recombinant

research, use and applications time to time. The Committee works under the

Department of Biotechnology.

Review Committee on Genetic Manipulation (RCGM):49 This Committee is

established under the Rules to work under the Department of Biotechnology, Ministry

of Science and Technology to ensure the safety-related aspects with respect to ongoing

research and guidelines specifying procedures regulating the process of genetic

modification of organisms in research and development for environmental safety.

Institutional Bio-Safety Committee (IBSC):50 The Committee is set up under the

institution which deals with Genetic Modification of Organisms, research to manage

such research and to interface with the RCGM in regulating it.

Genetic Engineering Approval Committee (GEAC):51 It is set up under the Ministry

of Environment and Forest, which is the apex body to accord released under Rules 1989

for the approval of research in large-scale use of hazardous organisms and recombinants

from the environmental perspective. The GEAC is in charge of the proposals which

relate to the genetically modified organisms and other products into the environment,

which is inclusive of the experiments in the field trials.

State Bio-Safety Coordination Committee (SBC’s):52 It plays a significant role in

monitoring genetic modification of the organisms. It has the power to review, examine,

investigate and take punitive measures in the case of genetically modified organisms.

48 Rule 4(1) Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms/Genetically

Engineered Organisms or Cells, 1989 49 Rule 4(2) Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms/Genetically




Engineered Organisms or Cells, 1989

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District Level Committees (DLC’s):53 District Level Committee plays a crucial role

in monitoring the security controls in establishments occupied with the utilisation of

genetically modified organisms and their applications in the environment.

Rules 1989 are supplemented by the bio-safety guidelines, which are made through a

consultative methodology and following the global standards made by the Organization for

Economic Co-task and Development (OECD), CODEX Alimentarius Commission and

International Plant Protection Convention (IPPC).54

The Ministry of Health and Family Welfare is responsible for monitoring the quality and safety

of food marketed in India under the Prevention of Food Adulteration Act, 1954. The Indian

Council of Medical Research is an advisory body on GM Foods. The Ministry of Food

Processing Industries is engaged with going in new directions for the Research & Development

of food processing industries.

The Food Safety and Standards Act of 2006: It examines the effect of food on the health of

the human being. The definition of “food” in the Food Safety and Standards Act, 2006 includes

Genetically Modifies (GM) food.

“Food means any substance, whether processed, partially processed or unprocessed,

which is intended for human consumption and includes primary food to the extent

defined in clause (zk), genetically modified or engineered food or food containing such

ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any

substance, including water used into the food during its manufacture, preparation or

treatment but does not include any animal feed, live animals unless they are prepared or

processed for placing on the market for human consumption, plants, prior to harvesting,

drugs and medicinal products, cosmetics, narcotic or psychotropic substances:

Provided that the Central Government may declare, by notification in the Official

Gazette, any other article as food for the purposes of this Act having regards to its use,

nature, substance or quality.”55

53 Rule 4(6) Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms/Genetically

Engineered Organisms or Cells, 1989 54Genetic Engineering Approval Committee, ministry of environment and forests, government of India, Available

at: http://www.moef.nic.in/division/genetic-engineering-approval-committee-geac (last visited on 11th

June,2021)

55 Section 2(j) of Food Safety and Standards Act, 2006

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http://www.moef.nic.in/division/genetic-engineering-approval-committee-geac



After the enacting of the Food Safety and Standards Act in 2006, the GEAC needed to limit

itself to the approval of living modified organisms (LMOs) and move this to the FSSAI, for

which a notification was issued in 2007. Accordingly, the Ministry of Health and Family

Welfare (MoHFW) requested the Ministry of Environment and Forests to regulate the

processed foods until the time FSSAI gets ready to do so in a scientific way.

The notification was kept in abeyance until 2016, making the GEAC in charge of approving

processed foods, with no responsibility of the FSSAI practically speaking regardless of Section

22 of the Food Safety and Standards Act, 2006 (FSS Act) stating that GM foods shall not be

manufactured, sold, distributed or imported until the FSSAI approves them. Then, in 2013, the

Legal Metrology (Packaged Commodities) Rules, 2011, were amended to order that packages

containing genetically modified foods bear the words ‘GM’ on its display board. This rule is

in conflict with the fact that GM foods are not allowed in India and, in fact, created the false

perception that GM food was allowed.56

Section 22 of the Food Safety and Standards Act, 2006 says that no individual will make,

appropriate, offer or import any genetically modified food except provided under the statute.

The FSSAI and the MoHFW said that it had not approved any GM food. This implies that all

imported and domestically manufactured GM food available locally in the Indian market is

illegal.

According to Rule 6(7) of the Legal Metrology (Packaged Commodities) Rules, 2011, each

package containing genetically modified food shall bear at the top of its principal display the

words ‘GM’. This makes a false impression that GM food is lawful in India.

In February 2018, the Union Minister, MoHFW, on being questioned about the vacuum in

regulation of GM food, said that: 57

Genetically Engineered Organisms (GEOs) or LMOs, would first require approval from

the GEAC, would keep on first require endorsement from the GEAC for ecological

security and after that require the endorsement of the FSSAI for sustenance well-being.

56 Chandra Bhushan, Amit Khurana, et.al., Genetically Modified Processed Foods

in India—Need to Curb Illegal Sales in the Indian Market (Centre for Science and Environment, New Delhi, 2018) 57Lok Sabha Starred Question 117 on 9 February 2018,

available at: http://164.100.47.194/Loksabha/Questions/Qtextsearch.aspx

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http://164.100.47.194/Loksabha/Questions/Qtextsearch.aspx



Food or processed food containing GM ingredients produced from GM ingredients but

not containing LMOs or GEOs would also require approval of FSSAI.

No standards for GM foods have been set down by the FSSAI. However, even without

particular guidelines for GM foods, according to Section 22 of the Food Safety and

Standards Act, 2006, GM foods are not permitted to be produced, transported in or sold

in India. The FSSAI’s new draft labelling regulation of March 2018 means to address

the issue through the labelling of GM foods.

Labelling of GM foods in India

According to Section 22 of the Food Safety and Standards Act, GM food is illegal until FSSAI

approves it, which it has not done till now. The FSSAI has, as of late, proposed the draft FSS

(Labelling and Display) Regulations, 2018, which additionally tries to make marking of GM

nourishment compulsory. These directions have not been determined yet. The regulation

provides, ‘all food products having total Genetically Engineered (GE) ingredients 5 per cent or

more shall be labelled. The total GE ingredients shall be of the top three ingredients in terms

of their percentage in the product.’58

FSSAI pointed that it is the process of finalising the draft Food Safety and Standards (Labelling

and Display) Regulations that says that an organisation needs to make an affirmation on the

label if its food products have 5 % or more amount of ingredients which are genetically

engineered or modified.59 In December 2017, the FSSAI notified the Food Safety and

Standards (Organic Foods) Regulations, which regulates organic food fundamentally through

certification and labelling.

58 Id. At 56. 59James Rachels, “Do animals have a right to liberty?” in Animal Rights and Human Obligations, Reagan, T. and

Singer, P. (eds.), Animal Rights and Human Obligations, 13 (Prentice-Hall Publishers, New Jersey,1989).

133



Conclusion

“The right not to be tortured is shared by all animals that suffer pain; it is not a distinctively

human right at all.”60 It is submitted that there is an ethical dilemma regarding the nature of

Genetically modified animals in India. Although various animal right activists and various

international organisations are working towards banning the alteration of the genes of the

animals, still they find a way in the industry, and people are yet to find the same in their

supermarkets. It is also submitted that there is a need for stringent regulation for GM animals

in India because there is no law which prohibits even the import of these animals. It should

also broaden the scope of The Prevention of Cruelty to Animals Act. Hence, the Government

should try to balance the interest of the community with those of the animals and create a

pathway in which the rights of animals are protected.

60 Id.

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The Role of Prosecution in the Criminal Justice System in India:

An Analytical Audit

Dr. Mudasir Bhat And Dr. Mehraj Ud Din Mir

Abstract

The criminal justice system consists of the police, prosecution, courts and correctional

administration. Each of these components in the system is to work in synchronization with each other.

The harmonization among these organs will only make the success of the criminal justice system

possible. The prosecution system which is considered as the crucial wing of the system has to play its

role independent from any outside influence. The prosecutor is considered as the minister of the

justice on whom there is always the burden of impartiality. This research paper will analytically

emphasize the position, appointments and role of the prosecutors in the criminal justice system. It

will also bring to light the critique of the role of the prosecutors and the challenges faced by them

while performing their duties. The paper concludes with some valuable suggestions, which will

contribute to the smooth functioning of the criminal justice system in general and the prosecution

system in particular.

Keywords: Criminal Justice System, Adversarial system, Police, Investigation, Trial and

coordination.


1. Introduction

The origin of crime as a complex socio-legal problem is as old as human civilisation.1 Whenever

men and women formed themselves into an organised society, the need for criminal law has

been felt.2 Criminal law includes both substantive and procedural laws. The substantive

criminal law determines the rights and duties of the parties in a case and procedural or adjective

law sets the law enforcement machinery into action. The existing criminal law enforcement

machinery primarily consists of three main components including police, courts, and

correctional administration. The court itself consists of judges, prosecutors and defence

counsels. For the smooth functioning of this system, all these components have to work together

for maintaining the rule of law in society.

The police are the first members of the criminal justice system to arrive on the scene of an

incident, and they collect material evidence using the law and their professional skills, after

which the matter is transferred to a court of law for legal procedures. If the investigating officer

neglected some material evidence, there is a good likelihood they will vanish with the time

ICSSR, Post-Doctoral Fellow, Department of Law, School of Legal Studies, Central University of Kashmir,

Jammu and Kashmir - India. Author may be contacted at: [email protected]. Professor of Criminal Law, Professor of Criminal Law and Dean, School of Legal Studies Central University of

Kashmir, Jammu and Kashmir - India. 1 Mehraj ud Din Mir, Crime and Criminal Law in India 9 (Deep and Deep Publications, New Delhi, 1985). 2 R.C. Nigam, Principles of Criminal Law 3 (Asia Publications, Bombay, 1965).

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mailto:[email protected]



(progressive change),3 which may prove fatal even leading to the acquittal of the accused

person. TAs a result, the function of the investigating officer in a criminal inquiry is critical in

proving the case against the accused. The Code of the Criminal Procedure, 1973 divides crimes

into two broad categories: cognizable and non-cognizable offences. According to Section 414

of the CrPC, the police have the authority to investigate the case suo motu in the event of a

cognizable offence and to collect the necessary evidence to successfully prosecute the

perpetrator. if the offender is unknown, the investigation becomes more difficult, requiring the

police to use their professional knowledge and the assistance of informants to identify the

perpetrator and his motivation for committing the crime.5

The next critical position in the criminal justice system is that of the prosecutor. Every organised

society has a well-developed prosecution system to prosecute those who break the society's

established legal rules. However, the criminal justice system in common law countries such as

India differs from that in civil law countries. However, under both systems, this office is the

3 Law of progressive change in forensics means "everything changes with the passage of time. In other words,

nothing is permanent-immutable or invariable. The rate of change varies tremendously with different objects. The

scene of occurrence undergoes rapid changes. The weather, the vegetable growth, and the living beings (especially

human beings) make extensive changes, in comparatively short periods. Longer the delay in examining the scene,

the greater will be changes. After some time, the scene may become unrecognizable. For example, a road accident

scene on a busy road will lose all material evidence if the same is not processed at once. 4 Section 41 of the Code of Criminal Procedure, 1973 provides: When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person,

any implement of house- breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may

reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape,

from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information

has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any

place out of India which, if committed in India, would have been punishable as an offence, and for which he is,

under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided

that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who

issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging

to one or more of the categories of persons specified in section 109 or section 110. 5 Radheshyam Prasad, "Prosecutors as Gate Keepers of Criminal Justice Administration in India" 8 Dr. Ram

Manohar Lohiya National Law University Journal 222 (2008).

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focal point. It is regarded as a power centre since it holds significant authority. It is the

repository for the public's authority to commence and withdraw criminal prosecutions.6

As per Section 247 and 258 of the Code of Criminal Procedure, prosecutors including Public

Prosecutors, Additional Public Prosecutors and Special Public Prosecutors are to conduct

6 K. N. Chandrasekharan Pillai, "Public Prosecution in India" 50 JILI 629 (2008).

7 Section 24 of the Code provides:

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High

Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting

in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State

Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case

or class of cases in any district or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more

Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor

appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as

the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons,

who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor

for the district unless

his name appears in the panel of names prepared by the District Magistrate under sub- section (4). (6) Notwithstanding anything contained in sub- section (5), where in a State there exists a regular Cadre of

Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor

only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government,

no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public

Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District

Magistrate under sub- section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-

section (1) or sub- section (2) or sub- section (3) or sub- section (6), only if he has been in practice as an advocate

for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases,

a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

(9) For the purposes of sub- section (7) and sub- section (8), the period during which a person has been in practice

as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public

Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by

whatever name called, shall be deemed to be the period during which such person has been in practice as an

advocate.]

8 Section 25 of the Code provides: (1) The State Government shall appoint in every district one or more Assistant

Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting

any case or class of cases in the Courts of Magistrates.]

(2) Save as otherwise provided in sub- section (3), no police officer shall be eligible to be appointed as an Assistant

Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate

may appoint any other person to be the Assistant Public Prosecutor in charge of that case; Provided that a police

officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the accused being prosecuted; or

(b) if he is below the rank of Inspector.

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prosecutions and criminal proceedings in High Courts and Sessions Courts and Assistant Public

Prosecutors are appointed for conducting prosecutions in the Magistrate's Courts.9

1.1 Independence of Prosecution

A prosecutor defends the state's interests, not the police, and ensures that the prosecution is

conducted fairly. The objective of any criminal trial is to investigate the crime and decide the

accused's guilt or innocence, and it is the prosecutor's primary responsibility to assist the court

in determining the truth of the case. As a result, the prosecutor is required to carry out his duties

in a fair, fearless, and responsible manner. However, these expectations must be balanced

against the realities of the criminal justice system.10 The prosecutor must play an independent

role at every step of the criminal proceeding to obtain the desired results. In Union of India v.

Sushil Kumar Modi11 the Hon’ble Supreme Court of India has quoted the following words of

Lord Denning12 in R v. Metropolitan Police Commissioner13 as to the independent role of

police:

"I have no hesitation, however, in holding that, like every constable in the land, he should

be, and is independent of the executive. He is not subject to the order if the Secretary of

State...I hold it to be the duty of the Commissioner of the Police, as it is of every Chief

constable to enforce the law of the land. He must take steps so to post his men that crimes

may be detected, and those honest citizens may go about these affairs in peace. He must

decide whether or not suspected persons are to be prosecuted; and, if need be, bring the

prosecution or see that it is brought; but in all these things, be not the servants of anyone,

save the law itself. No Minister of the Crown can tell him that he must, or must not keep

observation on this place or that; or that he must nor prosecute this man or that one. Nor

can any police authority tell him so. The responsibility for law enforcement lies on him.

He is answerable to the law and the law alone."

The Hon'ble Supreme Court of India, after quoting the above observations, observed:

"According to the Code of Criminal Procedure, 1973, the formation of the opinion as to

whether or not there is a case to place the accused of the trial is that of the police officer

making the investigation and the final steps in the investigation is taken only by the police

and by no other authority. This must be borne in mind as also that the scope and purpose

of a proceeding like the present are to ensure proper and faithful performance of its duty

by the police officer, by resort to the prerogative writ of mandamus."

9 Supra note 5 at 223. 10 Ibid. 11 (1997) 4 SCC 770. 12 Lord Denning was perhaps the greatest law-making judge of the century and most controversial. His

achievement was to shape the common law according to his own highly individual vision of society. Lord Denning

was one of the most celebrated judges of his time. He is popular as dissenting judge. 13 (1968) 1 All ER 763.

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Thus, it becomes imperative for the police to enforce the law without any executive influence.

Likewise, the prosecutor as well is required to discharge his duty without any influence. The job

of the prosecutor who is considered as the Minister of Justice is to assist the State in the

administration of justice. The independence of the prosecutor's function stands at the heart of

the rule of law. As has been rightly observed by Avory J. in R v. Banks14 that “prosecutors are

the gatekeepers in the criminal justice system. It is now a well-settled rule that prosecutors are

independent of the police and the courts. While the police, the Courts and the prosecutors have

responsibilities to each other, each also has legal duties that separate them from others. The

prosecutor does not direct police investigations, nor does he advise the police. The Government

should ensure that prosecutors are independent of any executive influence, and can discharge

their professional duties and responsibilities without any interference.”15

Even with regard to the withdrawal of prosecution under Section 32116 of the Code of Criminal

Procedure, 1973, the Hon'ble Supreme Court of India in Balvant Singh v. State of Bihar17has

pointed out that “it is the statutory duty of the prosecutor alone to apply his mind and decide

about the withdrawal of prosecution and this power is non-negotiable and cannot be bartered

away in favour of those who may be above him on the administrative side”. Again, in Subhash

Chander v. State,18the Supreme Court has stated that “it is the prosecutor alone and not any

other executive authority that decides the withdrawal of prosecution. Consent will be given by

14 (1916) 2 KB 621. 15 Law Commission of India, 197th Report on Public Prosecutor's Appointments, (July, 2006). 16 Section 321 of the Code of Criminal Procedure, 1973, provides: The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced,

withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, -

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or

offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted

in respect of such offence or offences: Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act,

1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central

Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the

discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for

its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor

to produce before it the permission granted by the Central Government to withdraw from the prosecution. 17 AIR 1977 SC 2265. 18 AIR 1980 SC 434.

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the prosecutor only if public justice in the larger sense is promoted rather than subverted by

such withdrawal. In doing so, he acts as a limb of the judicial process, and not as an extension

of the executive. He has to decide about the withdrawal by himself, even where displeasure

may affect his continuance in office. None can compel him to withdraw a case. The Prosecutor

is an officer of the Court of law and is responsible to the Court.”19

1.2 Role of the Prosecution in the Criminal Justice System

To analyse the role of the prosecutor in the criminal justice system, it is worthwhile to mention

the work of Christmas Humphrey20 published in Criminal Law Review (1955) which has been

quoted in the 197th Law Commission of India Report on Public Prosecutors Appointments

(2006):

"The Prosecutor has a duty to the state, to the accused and the Court. The Prosecutor is

all times a minister of justice, though seldom so described. It is not the duty of the

prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or

satisfaction in the mere fact of success. Still less should he boast of the percentage of a

conviction secured over a period. The duty of the prosecutor or I see it, is to present to

the tribunal a precisely formulated case for the Crown against the accused person, and to

call evidence in support of it. If a defence is raised incompatible with his case, he will

cross-examine dispassionately and with perfect fairness, the evidence so-called, and then

address the tribunal in reply, if he has the right, to suggest that his case is proved. It is not

a rebuff to his prestige if he fails to convince the tribunal of the accused person guilty.

His attitude should be so objective that he is, so far as humanly possible, indifferent to

the result. It may be argued that it is for the tribunal alone, whether magistrate or jury to

decide guilt or innocence."

The Law Commission of India in its 154th Report21 has quoted a very articulate observation of

the Kerala High Court given in Babu v. State of Kerala22 to the following effect:

Prosecutors are the ministers of Justice whose job is none other than assisting the

State in the administration of Justice. They are not representatives of any party. Their job

is to assist the Court by placing before the Court all relevant aspects of the case. They are

also not there to see the culprits escape conviction."

The Prosecution is one of the most significant branches of the criminal justice system, and its

job is critical to the system's effective operation. The executive's duty to prosecute an offender

19 Supra note 15. 20 Christmas Humphreys was an English Scholar and barrister who prosecuted several controversial cases in the

1940s and 1950s, and later became a judge at the Old Bailey. Apart from his writings on law, he has also written

a number of works on Buddhism and is best-known British convert to Buddhism during his times. 21 Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (22 August, 1996). 22 1984 Cr LJ 499 (Ker.).

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is carried out through the institution of the Prosecution. The prosecutor is appointed by the state

and is in charge of prosecuting cases on its behalf. While it is the prosecutor's obligation to

ensure that the trial results in a conviction, he does not need to be overly preoccupied with the

outcome. He is a Court-appointed neutral officer who is expected to offer a true picture to the

Court of Law. Even while he represents the State, it is also his responsibility to ensure that the

accused is not treated unfairly. Despite being an executive officer, the prosecutor is a court

officer who is obligated to help the court. The prosecutor represents the state, which is dedicated

to the administration of justice rather than advancing the interests of one side at the expense of

the other. He must be honest and impartial so that even the accused are treated fairly. When a

case is dropped from prosecution, the prosecutor has a big say. He should only prosecute in

exceptional circumstances, lest the public's faith in the administration of justice is shattered.23

The role and functions of the prosecutor in the criminal justice system have been highlighted

by the Hon'ble Supreme Court of India in Shiv Nandan Paswan v. State of Bihar & Others24 as

under:

“a) That the Prosecution of an offender is the duty of the executive which is carried out

through the institution of the Prosecutor.

b) That the withdrawal from prosecution is an executive function of the Prosecutor.

c) That the discretion to withdraw from prosecution is that of the Prosecutor and that of

none else and he cannot surrender this discretion to anyone.

d) That the Government may suggest to the Prosecutor to withdraw a case, but it cannot

compel him and ultimately the discretion and judgement of the Public Prosecutor would

prevail.

e) That the Prosecutor may withdraw from prosecution not only on the ground of paucity

of evidence but also on other relevant grounds to further the broad ends of public justice,

public order and peace.

f) That the Prosecutor is an officer of the Court and is responsible to it.”

1.2.1 Role of a Prosecutor in Pre-Trial Stage

The expression trial as such was neither defined in the Code of Criminal Procedure, 1872 nor

it has been defined in the subsequent codes of 1882, 1898 and 1973. To retrieve the meaning

of these expressions one is required to resort to the dictionary meanings. According to Stroud's

Judicial Dictionary25, trial means the conclusions by the competent court, of question in issue

23 Madan Lal Sharma, "The Role and Function of Prosecutor in the Criminal Justice" 192,193, 107th International

Training Course Participants Paper at United Nations Asia and Far East Institute, (1997). 24 AIR 1983 SC 1994. 25 Stroud's Law Dictionary is a law dictionary first published in 1890 by Frederick Stroud, a Barrister and Recorder

of Tewkesbury, England. He is also known for his writings like County Court Practice in Bankruptcy and Practical

Law Affecting Bills of Sale.

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in any legal proceedings. As per Wharton's Law Lexicon26 trial means the hearing of a case,

civil or criminal before a judge who has jurisdiction over it. Thus, the expression trial has no

universal meaning but has to be given that meaning which the particular context in which it is

used demands.27

In the pre-trial stage, the role of a prosecutor is minimal. During this stage, the police are

competent to make the arrest, conduct search(s) record confession(s) and statements of the

witnesses. However, a police officer cannot investigate a non-cognizable offence without the

prior sanction of the court. The investigations in India are conducted as per the provisions of

Chapter XII of the CrPC, 1973.28After the investigation is done, the police officer is required

to submit a final police report to the court. The prosecutor has the following role in the pre-trial

stage: (1) He appears in the court and obtains an arrest warrant against the accused person; (2)

He obtains search warrant(s) from the court for searching the specific premises for collecting

evidence; (3) He obtains police custody remand for the custodial interrogation of the accused

person (Sec. 167); (4) If an accused person is not traceable, he initiates proceedings in the court

for getting him declared a proclaimed offender (Sec. 82) and, thereafter, for the confiscation of

his movable and immovable assets (Sec 83); and (5) He records his advice in the police file

regarding the viability/advisability of prosecution.

If a prima facie case is established against the accused person after the investigation is

completed, a charge sheet is filed in court through the prosecutor's office. At this point, the

prosecutor's view on whether a prima facie case has been established is sought. The prosecutor's

input and brief notes are often taken into consideration to improve the quality of the inquiry.

The police authorities, however, have the final say on whether or not to bring a case to trial. If

the investigating officer (IO) and the prosecutor disagree about whether or not the case should

be prosecuted, the District Superintendent of Police makes the final decision.29

26 Wharton's Law Lexicon is considered as the epitome of the Law of the England. John Wharton was a prominent

American Lawyer whose work was steeped in the classic era of Broadway theatre. 27 S.N. Misra, The Code of Criminal Procedure 1973 10 (Central Law Publications, Allahabad, 15th edn., 2008). 28 The final police report is submitted to the court under Sec. 173 of the Code of Criminal Procedure, 1973. 29 Supra note 23 at 194.

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1.2.2 Role of a Prosecutor during the Trial Stage

During the trial stage, the prosecutor plays an unrivalled role to represent the state than the

government or police. It is the impartial role of the judge and prosecutor which decides the fate

of the trial. In the actual trial, there are various stages and, in each trial, the prosecutor plays a

pivotal role. After the charge sheet is filed in the court of law, the case is handed over to the

prosecuting officer. The court on taking cognizance of the case frames the charges against the

accused person if a prima facie case is made out. The court proceeds then to record the

prosecution evidence and the statement of the accused. Eventually, court hears the final

arguments from both the side and makes the judgement public.

Further during the trial, the prosecutor has the authority to withdraw a case from the trial as per

Section 321 of the Code of Criminal Procedure.30 Section 321 provides “for the withdrawal

from prosecution does not indicate as to the grounds on which the prosecutor may make the

application or the consideration on which the court is to grant its consent. The initiative is that

of the prosecutor and what the court has to do is only to give its consent and not to determine

any matter judicially.”31 In Sheo Nandan Paswan v. State of Bihar32, it was held that “the

judicial function implicit in the exercise of the judicial discretion for granting the consent would

normally mean that the court has to satisfy itself that the executive function of the prosecutor

has not been improperly exercised or that it is not an attempt to interfere the normal course of

justice for illegitimate reasons.”

The Supreme Court in Subash Chander v. The State33 has held that “under Section 321

withdrawal of prosecution is exclusively the jurisdiction of the prosecutor. No executive

authority has the power to withdraw the prosecution. But the prosecutor too can withdraw it

with the consent of the court. The consent of the court under Section 321 as a condition for

withdrawal is imposed as a check on the exercise of that power. The consent, according to the

Supreme Court, will be given only if public justice in the larger sense is promoted rather than

subverted by such withdrawal. The Prosecutor has to act independently and apply his mind

judicially. He has to act, in doing so, as a limb of the judicative process not as an extension of

30 Supra note 13. 31 Supra note 27 at 452. 32 1987 Cr LJ 793 (SC). 33 AIR 1980 SC 423.

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the executive. The decision to withdraw must be of the prosecutor, not of other authorities, even

of those whose displeasure may affect his job status.” Again, in Rahul Agarwal v. Rakesh Jain34,

“the permission for withdrawal of the prosecution was granted on the ground that the case was

pending for a long time and accused was not a habitual criminal. The case was posted for

examination of the accused and no inquiry was made as to why the case was pending. It was

held that the order permitting withdrawal of prosecution when prosecution evidence was about

to be over at any point in time, is not proper. It was also held that the permission for withdrawal

of the prosecution can be granted only in the interest of justice and for valid reasons. It may

thus be granted in a case that is likely to end in acquittal and continuance of case is only causing

severe harassment to the accused, or to bring about harmony between the parties. Discretion to

permit withdrawal of prosecution should not be exercised to stifle prosecution at the instance

of aggrieved parties. Even if Government directs prosecutor to withdraw prosecution the court

must consider all the relevant circumstances and find out whether withdrawal would advance

the cause of justice.”

1.2.3 Role of a Prosecutor in Post-Trial Stage

After the completion of trial and pronouncement of judgement by the competent court, the

aggrieved party may go into appeal before the appellate court. On appeal to the higher court,

the prosecutor plays an important role. As per the provisions of Section 374 of the Code of the

Criminal Procedure, “Any person convicted on a trial held by a High Court in its extraordinary

original criminal jurisdiction may appeal to the Supreme Court and any person convicted on a

trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other

Court in which a sentence of imprisonment for more than seven years has been passed against

him or any other person convicted at the same trial may appeal to the High Court, or if any

person is convicted by the Metropolitan Magistrate or Assistant Sessions Judge or Magistrate

of the first class or the Second class may appeal to the Court of Sessions.”

The prosecutor as per section 377 of the CrPC also plays a pivotal role, “when the State

Government may, in any case of conviction on trial held in any Court other than High Court,

direct the prosecutor to present an appeal against the sentence on the ground of its inadequacy

34 2005 Cr LJ 963 (SC).

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to upper court.35 Again Section 378 of the CrPC provides that the District Magistrate or the

State Government may, in any case, direct the prosecutor to present an appeal to the superior

court.”36

1.3 Critique of the Role of Prosecution in the Criminal Justice System

The prosecuting officers in the criminal justice administration are not the pawns in the hands

of the government. They are required to play their role in an impartial and unbiased manner.

The prosecutor has to represent the state than the government. He must be the defender of the

cause of his client as efficiently and effectively as possible. However, in the performance of his

35 Section 377 of the Code of Criminal Procedure provides:

(1) Save as otherwise provided in Sub-Section (2), the State Government may in any case of conviction on a trial

held by any Court other than a High Court, direct the Public prosecutor to present an appeal against the sentence

on the ground of its inadequacy—

a. to the Court of session, if the sentence is passed by the Magistrate; and b. to the High Court, if the sentence is passed by any other Court”;

c. in Sub-Section (3), for the words “the High Court”, the words “the Court of Session or, as the case may be,

the High Court” shall be substituted.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police

Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other

agency empowered to make investigation into an offence under any Central Act other than this Code, the Central

Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on

the ground of its inadequacy.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not

enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such

enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.

(4)When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB,

section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal

Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal. 36 Section 378. provides for appeal in case of acquittal.

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the

State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an

original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed

by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

by any other agency empowered to make investigation into an offence under any Central Act other than this Code,

the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of

sub- section (3), to the High Court from the order of acquittal.

(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High

Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an

application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal,

the complainant may present such an appeal to the High Court.

(5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be

entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty

days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of

acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub- section (2).

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duties, it is an obligation on him to work in synchronization with the other wings of the criminal

justice system. When the researcher approached the different stakeholders (respondents groups

for empirical study) for their opinion regarding the coordination between the police and

prosecution, the majority of them are of the inference, that there is a lack of cooperation between

the different wings of the prosecution in general and police and prosecution in particular.

The prosecution and investigation no doubt are the two different aspects of the criminal justice

system. The role of the police in the criminal justice system is important because he is the first

who reaches the scene of the occurrence and while applying the law and his professional

expertise collects material evidence based on which the case is sent to the court for legal trial.

If the police investigating officer ignores certain evidence which subsequently disappears or

gets destroyed then it may prove fatal to the case in hand. The police and the prosecution

sometimes lack coordination on investigative issues. Their acts are independent of each other

as investigation work is outside the court, whereas the role of the prosecutor is inside the court.

It is also true that they are interdependent, hence they should act in harmonizing the things in

the delivery of justice.37

As per the National Crime Records Bureau (NCRB) report, Crime in India, 2018, the conviction

rate in the country is less than 50% which is very lower than countries like the USA (85%),

China (99.9%), UK (84.5%), Israel (93%), Japan (99.5%) and Russia (99.78%). The reasons

for the low conviction rate in the country may be many, but it has been time and again

highlighted by the courts in India that prosecution also does not play its role as per the mandate

of law. The Hon'ble Supreme Court of India in the Best Bakery case38 has criticized the role of

the prosecutor for opposing the issuance of arrest warrants against the accused persons before

a Mumbai court. The Court has observed that such a person should not continue as the public

prosecutor for the state.

Again, in Jayalalitha's Disproportionate case39” when the public prosecutor stated, he has no

objection to granting of conditional bail to the convicts has put the impartiality and

independence of judicial system into question. The Court has held that the public prosecutor is

37 Supra note 5 at 229. 38 Zahira Habibullah H. Sheikh v. State of Gujarat, 2005 Cr LJ 2050 (S.C.). 39 State Of Karnataka v. Selvi J. Jayalalitha & Ors, (2017) 6 SCC 263.

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appointed by the state to perform the functions of the state. But when the public prosecutors

which is one of the most important branches of our legal system, acts on behalf of wrongdoers

then the impartiality and purity of judiciary come into question.”

Regarding the misuse of the power of withdrawal from prosecution by the prosecutors under

Section 321 of the CrPC, Hon'ble Supreme Court in Sheo Nandan Paswan v. State of Bihar and

others40 have opined that “Section 321 of the Code enables the Public Prosecutor to withdraw

from the prosecution with the consent of the Court. Before the prosecutor makes an application

under Sec. 321 of the CrPC, the Prosecutor has to apply his mind judiciously to the facts of the

case without being subject to any executive influence.”

1.4 Problems of the Prosecutors in the Criminal Justice System

In our country, the criminal justice system is based on the idea that any crime committed against

citizens is a crime against the state. The state takes on the burden of prosecuting perpetrators

on behalf of the victims based on this premise. Although Indian prosecutors are nominally

independent, they are subjected to a variety of unlawful influences and pressures.41 The

problems of the prosecutors in India can be summed up in the following heads:

I. Lack of Coordination between the Police and Prosecution

The success of the justice delivery system in any part of the world depends upon the

coordination between its various organs. The Police and Prosecution have to work

independent from each other, but both must supplement and complement each other.

The Police force which is vested with the powers to register the case and initiate the

investigation does not perform its duty with utmost responsibility.42 The investigation

part of any case is crucial to determine its success. During empirical study as well, when

prosecuting officers were asked about the same, they commented that in a large number

of the cases investigation done by the police is not up to the expected level which

becomes an easy ground for the defence counsels to get the acquittal of their clients.

II. Overburdened Prosecution

40 (1983) 1 SCC 438. 41Bikram Jeet Batra, “Public Prosecution in Need of Reform”, India Together, July 5, 2005, available at:

<http://indiatogether.org/prosecute-government> (last visited on June 10, 2019). 42 Lalita Kumari v. State of U.P. AIR 2012 SC 1515.

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There is a large number of pending trials in the subordinate courts. As has been rightly

put by Madam Lal Sharma "the exact number of prosecutors in the country is not known.

Experience, however, shows that the prosecutors are overburdened with cases and their

number is not adequate to efficiently handle the cases entrusted to them. It is difficult

to fix a norm as to the number of cases to be entrusted to a prosecutor as it would depend

on the nature of the case. Further, the performance of a public prosecutor is largely

dependent on the performance of the presiding officer and other collateral factors. While

there is a case for increasing the number of criminal courts, there is equally a case for

increasing the number of prosecutors. As a norm, at least two prosecutors of the

appropriate level should be attached with each court."43 However, in practice, the

situation is troublesome. During the fieldwork, it has been found at various stations one

prosecutor is posted at two places.

III. Lack of Proper Training

The Prosecutors who play the important role in the justice delivery system are recruited

from the open market, and they are entrusted with the cases without any institutional

training. Madan Lal Sharma observes "they learn by experience, but that takes time and,

in the meanwhile, the cases suffer. It is suggested that a national level training

institution should be set up for the prosecutors to impart them proper training. The

duration of the training could be one and a half years. Six months could be earmarked

for training in law; four months for attachment with a police station; four months for

attachment with a competent magistrate; and the remaining four months for attachment

with a senior and experienced public prosecutor. The proposed institutional training

could be supplemented with refresher courses from time to time."44

IV. Lack of Infrastructure

The prosecuting officers need good knowledge of the law to face experienced defence

counsels. To imbibe such knowledge, it becomes imperative to have a well-equipped

library (including a digital legal database) in the office of the prosecutor. The lack of

such law books and online legal databases most often becomes a hurdle in the proper

functioning of the prosecuting officers.

V. Executive and Political Influence

43 Supra note 23 at 198. 44 Ibid.

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The prosecutor is the officer of the court whose job is to assist the court in the

administration of justice. He represents the state and not the police or government. His

role should be impartial and independent from any outside influence. The shimmering

example of outside influence on investigating officers and prosecutors can be seen in

the Jain Hawala case45. In this case “the bureaucrat-politician-criminal nexus had used

all means necessary to thwart the investigation and prosecution of corruption cases by

the Central Bureau of Investigation. The Court monitored the progress of these cases

and passed detailed directions on the functioning of various agencies involved and even

warned the minister in charge to avoid interfering with the investigation and

prosecution”.46

1.5. Concluding Remarks

In the closing remarks, a prosecuting officer is frequently depicted as a Minister of Judicial who

is responsible for ensuring the purity and fairness of the criminal justice system. The purpose

of a criminal trial is not to support at all costs a theory but to investigate the offence and to

establish the fault or innocence of the accused, and it is the duty of the Prosecutor to represent

not the police or executive but the State, and this duty should be discharged by him fairly and

fearlessly and with full sense of responsibility and accountability.

45 Vineet Narain v. Union of India, (1998) 1 SCC 226. 46 Supra note 41.

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OBSERVATIONAL SKILLS AND NONVERBAL DISCOURSE

IN THE CONTEMPORARY COURTROOM

Shriraj Dusane

ABSTRACT Every legal institution is founded on the view of human nature and how human behaviour is

determined. In a court case, the attorney's goal is to persuade the court to rule in favour of

his client. He/she should be aware of, and learn to regulate, the consequences of nonverbal

communication in his attempts to convince. Facial expressions, gestures, kinesics, proxemics,

touching, scent, and paralanguage are all examples of nonverbal communication. Courtroom

observation adds depth and qualitative confirmation to other pre-trial research

methodologies. This research paper deliberates on different observations skills a lawyer must

have and what things must he observe around in the legal system. It also explains how lawyers

may utilise participant observation data and observation abilities to develop new strategies

and themes, as well as deal with unexpected courtroom happenings. The goal of this research

paper is to critically examine and understand observational skills and nonverbal

communication for lawyers. Nonverbal communication in the court has a subtle impact on

the entire trial procedures. This research article covers empirical and doctrinal data on non-

verbal discourse in the court and offers a practical model which explains how numerous

nonverbal signals of individuals in court interact to impact a judge's thinking. This research

paper defines and characterises body language and attempts to demonstrate its position and

importance in legal procedures. This study explores various types of nonverbal

communication. This study attempts to demonstrate the elements of human behaviour drawn

from social psychology as well as field work to shed light on human behaviour in courtrooms,

empower attorneys to better represent their clients, and recommend solutions to enhance the

court system. This research paper emphasizes on the role, contemporary relevance, and

challenges of the non-verbal communication in the legal field.

Keywords: Legal Institution, Nonverbal Communication, Courtroom Observation, Human

Behaviour, Court System.


INTRODUCTION

The capacity to accurately observe, analyse, and record conclusions is one of the most valuable

tools of the counsel. Our perception is limited; the way we view our surroundings may not

accurately reflect what is really there. Sorting content, filling holes, and adapting prior

experience to new circumstances are all valuable skills. Recognizing our shortcomings is also

critical in the legal profession. The purpose of this article is to demonstrate observation skills

for the study of usual and deliberate behaviours of court participants. Observing a case is a

simple method to gain a sense of what advocating is like and to see excellent advocacy abilities

in action. Nonverbal communication is prevalent for both direct and facilitated communication.

Second Year Student of Law, Maharashtra National Law University, Nagpur, Maharashtra - India.

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Though attorneys have used nonverbal persuasion strategies subconsciously for ages,

sociology has lately offered empirical evidence to trial practise these ideas. It is always present

and proclaimed, although the lawyer is frequently unconscious of its presence. In his opening

address, the lawyer employs gestures and eye contact to influence the judges. By his posture

and facial gestures, the judge discreetly transmits his thoughts regarding the case. Throughout

his overall look and the apparel he wears, the client unknowingly communicates messages to

the judge. Underneath the judge's scrutiny, a witness on the stand exposes more via fiddling

with his clothing and changing his body than he does via his statement. Simultaneously, the

judges seeing these nonverbal behaviours may be impacted by it. As a result, the lawyer should

be aware of the availability of this mode of communication and use it to his benefit.

Body language cannot be entirely eliminated, implying that nonverbal communications are

ongoing and widespread. Body language reveals not only what is going on in people's brains,

but also the passive participants in court proceedings.1 False perceptions and improper

prejudices regarding nonverbal communication, particularly in courtrooms, necessitate

addressing this particular matter. The nonverbal behaviour of judges, clients, witnesses, and

lawyers will be the emphasis of this research. This research paper will then move on to a

discussion of how much the judges rely on nonverbal cues when determining verdict. The

problem of communication in judicial procedures is divided into two parts: the amount of

formalisation of the norms of this procedure, and the region of subjective restrictions of the

parties in this communication.

IMPORTANT SKILLS TO KEEP UP WITH RECENT DEVELOPMENTS IN LEGAL

PROFESSION

a. Communication skills: Any attorney must have very sound speaking abilities in order to

discuss their arguments before the judges and correctly express and represent the claim; b.

Observational skills: Prior going to court, every prosecutor must closely examine and assess a

situation. If they lack some detail, it may lead to the failure of a lawsuit and justice. The

attorneys should observe and make use of a large amount of knowledge that they must deal

1 Agnieszka Gurbiel, “The importance of the body language and the non-verbal signals in the courtroom in the

criminal proceedings” 112 World Scientific News 75-83 (2018).

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through. They should hence be able to notice the smallest nuances in order to learn from them;

c. People skills: Attorneys work in a field where nonverbal interpersonal contact is essential.

They should be able to communicate effectively, persuade others, and empathize with others;

d. Perseverance: Being an attorney necessitates determination, courage, loyalty, and devotion;

e. Research abilities: A prosecutor must thoroughly investigate the client's and the cases’ past.

Attorneys help victims get justice as well as play a key role in the legal system. With the

competitiveness, lawyers must hone particular abilities and strive to be the best. Soft skills are

becoming progressively relevant for attorneys, especially in their ability to provide good client

support, expand and lead teams, and build industry. Emotional intelligence is essential for all

levels because it encompasses several soft skills, especially observation, nonverbal

communication, client relations, and resolving conflict. These may give a competitive edge as

well as an important protection against automation. Observational skills and nonverbal contact

are two examples of such soft skills. However, most legal firms today take a less formal

approach to learning soft skills.2 Body language as well as a positive personality are required

for successful communication with colleagues, team members, and customers. This included

conversational and interpersonal skills, as well as the ability to manage tense interactions,

coordinate, get input, and listen actively.

OBSERVATION IN COURT ROOM

Grab a break in a courtroom where you regularly practise, or where you intend to practise

regularly. There will be both fantastic and not-so-great attorneys. Make a mention of it. After

that, speak with the lawyers and, if necessary, inquire. It's natural to feel uneasy just sitting in

the court when you don't have an argument, but that's typical. Any smart lawyer must have

studied lawyers in the past and most certainly continues to do so where necessary. And don't

just look at the attorneys. Observe the judges; this is particularly important if you plan to work

inside that court on a daily basis. The judges will become accustomed to seeing your face in

2 Globe Law and Business, “Essential soft skills for lawyers - What they are and how to develop them” (July,

2020); Kim Tasso, “Essential soft skills for lawyers”, Lexology, 22 June 2020, available at:

https://www.lexology.com/library/detail.aspx?g=0018fc23-cc31-4b31-beb9-e08982324c98 (last visited on May

25, 2021).

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the court, and you'll become accustomed to see them in the court of law, making the first few

encounters before them less threatening.

Take note of which judges ask a lot more interrogations (hot bench) and which only listen (cold

bench). Consider introducing you to the prosecutor if there is an appropriate opportunity. And

further, if you have a good relationship with an advocate in the courthouse, ask your lawyer to

present yourself to the judge before or after your case begins. You will gradually learn to

converse with the lawyers, resulting in more business connections and increased self-

confidence. You could also meet a guide along the way. Many folks believe that if you're in

court, you receive company. It may not be your ideal perfect case, however people in court

who want a lawyer commonly ask other lawyers in the courts to handle their lawsuit.

A LAWYER MUST BE OBSERVED

If you have somebody free, have them come in and watch you in court. Request them, that they

observe and give feedback about what they felt you did well and what they think you might

build on. An attorney with strong observational experience should ask himself the following

issues: have you been at ease before the adjudicator, or did you come off as tense, anxious, or

excessively at ease?; does your client keep talking to you in the trial, causing you to forget

important details?; do you seem to be well-organized?; could your points come off as rehearsed,

as if you were reading through a script? When we are in the middle of a lawsuit, we are not

concerned about how we appear; we are concerned with having the work finished and

explaining the argument. To escape any of the problems raised in the preceding queries, one

should improve one's nonverbal communication skills.

Observing from both sides - being watched as well as being the analyst - will do miracles for

your work, motivation, and capacity to accurately reflect your customers. Have the opportunity

to learn and be watched, and don't be afraid to confront any issues in the court to reform as well

as progress. Get the most of a sluggish month by studying and watching in court when you

have the opportunity. In the first year of one's law career, he is unlikely to be regularly busy.

Use the time to study your attorneys, adjudicators, and other legal professionals.

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ADVOCACY AND OBSERVING A TRIAL

Advocacy occurs when a legal counsel presents a specific case to the court in order to persuade

the judge to make a ruling in favour of their party. Advocacy includes a wide range of skills,

including legal review, drafting, oral presentations, nonverbal communication such as motions

and body language, cross-examining witnesses in court, and presenting a clear and convincing

case. If mooting sounds like a huge step right now, consider attending the trial to watch a

courtroom. “There are real-life stories of positive and poor campaigning there. If you notice an

attorney presenting compelling claims, consider that their point seems to be so compelling,

take notes, and appreciate the experience. The observer takes down written field notes as well

as summarises the events. We can see how the attorneys for the complainant and prosecution

used various tactics to manipulate the judge's attitude, showing their own ideas of how to

impact the court's actions.”3

OBSERVATIONAL SKILLS OF LAWYERS

A qualified prosecutor gathers all available facts without having any assumptions regarding its

significance. We gather knowledge about our environment through our sensations at all times.

Paying thoughtfulness to the information of the surrounding necessitates a determined attempt.

Cases of criminal attorney rely on the ability of all those involved - cops, prosecutors, forensic

scientists, and witnesses - to observe, e.g., we can fill a lost word in a sentence - a creamy pink

dessert is considered to have a strawberry taste even though it really contains vanilla. How we

interpret data in our brain is determined by input from our senses, what we give heed to, vision,

long-term memory, and short-term memory.

Observation of Witness: Witness findings are an essential part of every jury prosecution. Not

unexpectedly, witnesses' memories can be flawed (even if the witness is sure of what he/she

had seen). The observations/eyewitness reports are influenced by the following factors:

Emotional condition (upset, happy, sad), Nervousness (terror), if you are alone or with

someone, the amount of people and/or livestock in the vicinity, what kind of action is taking

place around you, what kind of stuff is going on around you?, the manners of a human (hand

3 “What is Advocacy”, The Lawyer Portal, available at: https://www.thelawyerportal.com/free-guides/legal-

careers-deciding-on-law/what-is-advocacy/ (last visited on May 26, 2021).

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gestures, look, walk, stand), familiarity with the situation (favourite restaurant, college, house).

The Innocence Project was founded in 1992 with the aim of re-examining post-conviction cases

(individuals arrested and incarcerated) using DNA samples to provide definitive proof of guilt

or innocence. As 375 false convictions in the USA were examined, it was discovered that

around 70% of the prosecutions were the product of faulty eyewitness evidence.4

How to be a Good Observer: We really aren't instinctively inclined to pay heed to all of the

specifics of our surroundings; thus, we must make a deliberate attempt to investigate our

surroundings in a thorough manner. We are instinctively conditioned to sort out irrelevant

details - we deliberately want to observe anything, no matter how minor or familiar, our

feelings, and past experiences. We have a strong tendency to analyse what we see, to search

for similarities and draw comparisons - collect all possible facts before jumping to conclusions.

Since we believe our perceptions are unreliable, we should write down and document as many

as appropriate.

Observation in Forensics for Lawyers: Cases were solved by dialogue about 2,000 years ago.

Forensic science is now used by prosecutors to prove their cases. Forensic study is associated

with obtaining information that can be used as evidence and presenting it to police and courts.

Attorneys engage in further discussions and attempts to persuade the jurors through nonverbal

contact and observation to reinforce the tale based on these details. Attorneys must do

observational work, which includes gathering, examining, and evaluating evidence from crime

scenes and interpreting it for the courts.

PARTICIPANT OBSERVATION IN COURTROOM

Participant observation is a technique that can be used to research the complex atmosphere of

a trial and compare pre-trial observation with ongoing courtroom activities in order to

demonstrate how facets affect the actual decision reached in court. Participant observation is

seen in criminal justice and legal sociology. The emphasis of participant observation is on the

mechanism instead of the result, on context instead of individual variables, and on exploration

rather than proof. Participant observation lends itself to explorative study. Participant

4 “DNA Exonerations in the United States”, Innocence Project, available at: https://innocenceproject.org/dna-

exonerations-in-the-united-states/ (last visited on May 26, 2021).

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observation, on the other hand, can be a valuable tactic in trial analysis. Participant observers

will be able to explore relationship analysis during the case using these concepts as a reference

for future tactic growth.5

The usage of observational methods to assist a prosecutor or claimant in a courtroom presents

a particular problem to qualitative methodologies. “Since sample observation procedures are

severely limited in the court, it is impossible for sociologists to breach research ethics.

Although secret observations in a trial can be performed, the conduct is public and takes place

in open trial. While judges can gaze to the crowd for signs or efficient lawyers can use the

spectators to gauge effective contact, the spectator is a passive participant in court engagement.

In the court, observational approaches are mainly focused on "ghost" or "mirror" judges, so

that these members can observe and respond to events identical to real judges.”6

Two unfolding narratives are witnessed, one of which proved superior to another in arranging

the observations of the judges, as expressed in the judgement. Experienced lawyers have biases

and preferences that have grown over time as a result of seeing trial as a legal instead of a social

contest. There are connectivity issues at two closely related points. Firstly, there is a linguistic

issue. Even outside of the pressure of the courtroom, the reasoning of case study of law and

generalising techniques of sociology will collide. Secondly, these issues are ultimately

influenced by economics. Participant assessment demonstrates a method of explaining the

unfolding narrative that courts understand in trial.

NON VERBAL COMMUNICATION

Nonverbal communication refers to the transmitting of signals or messages via nonverbal

channels such as haptics (touch), social cues, paralanguage, physical environments/appearance,

watching while speaking, rate of glances, eye contact, kinesics, chronemics (time), and

proxemics (distance). Scholars now believe that non-verbal discourse conveys better

significance than verbal discourse, and many people prefer nonverbal communication over

verbal communication. Nonverbal contact is influenced by culture. Similarly, nonverbal

5 Harvey Moore and Jennifer Friedman, “Courtroom Observation and Applied Litigation Research: A Case

History of Jury Decision Making” 1 Clinical Sociology Review 125-130 (1993). 6 supra note 5.

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features of written texts include handwriting type, word spacing, and the physical shape of a

page. Nonverbal contact observation may be divided into three categories: the atmosphere in

which communication occurs, the physical features of communicators, and the actions of

communicators throughout conversation. It entails both consciously and unconsciously

encoding (creating details such as expressions of face, movements, and postures) and decoding

operations (understanding of data via received senses).

IMPORTANCE OF NON-VERBAL COMMUNICATION

Majority of psychologists believe that non-verbal communication contributes for 60% to 70%

of social communication.7 Nonverbal discourse can even convey a message outspokenly and

with the usage of suitable gestures or body signs. Body signs comprise physical features, aware

and subconscious actions and signals, and private space meditation. If the body language

transmitted doesn’t complement the verbal meaning, a false message is identified. Nonverbal

communication reinforces first impressions in the legal profession, influencing judge

experience in court trials: perceptions are created during the first five seconds of interaction.

We all understand what body language is instinctively, but describing it is more difficult. Since

it omits the theoretical hypothesis that body language is the primary origin of knowledge for

the receiver of a given message, the term portrays nonverbal communication in a laconic

manner. Body language could be classified into the following categories of nonverbal

communication8:

TYPES OF NON-VERBAL COMMUNICATION

Kinesics: It is the analysis of motions of the arm, hand, torso, and face. It can be categorised

into four subtypes; gestures, head movement and posture, eye contact and facial expressions.

Gestures: It is hand and arm expressions including illustrators, adaptors and emblems. Adaptors

are physical gestures that signify emotional states, most often fear. E.g. we can unknowingly

7 Fontenot and Karen Anding, “Nonverbal communication and social cognition” 4 Salem Press Encyclopaedia of

Health 4, (2014). 8 “Types of Non-Verbal Communication”, available at: https://open.lib.umn.edu/communication/chapter/4-2-

types-of-nonverbal-communication/ (last visited on May 26, 2021).

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click pens, shake our legs, and so on. Fidgeting of hands, swinging hair, or scratching are

typical self-adaptors used in public speaking. Emblems are movements which have a

predetermined sense. As an example, The “OK” symbol is a lifted thumb. Emblems are highly

culturally unique. Illustrators are the most popular gestures used to convey the verbal message

with which they are associated. E.g. Gestures of hand may be used to signify the size of an

object. Illustrators take various forms, but their role is the similar throughout cultures.

Head Movements and Posture: We may turn our heads to show that we are interested. Lying

down, squatting, sitting and standing are the four fundamental human postures.9

Eye Contact: The analysis of nonverbal contact through eye action is known as oculesics.

Certain eye habits, such as cold eyes, malicious eyes, and so on, are linked to personality

characteristics or emotional responses. Eye Contact serves many purposes, including regulating

conversation, signalling cognitive activity (looking away while interpreting information,

expressing interest showing others we are aware with our eyes), and establishing rapport or

social relationships. We make clearer eye contact with our audience to show that we are

nearing the end of our conversation. When we listen, we create more intense eye contact, rather

than glancing like we do when we talk. The eyes provide us with the sensory input we require

to understand person's expressions, motions, and even eye contact.

Facial Expressions: Happiness, sorrow, terror, rage, and indignation are all universally

recognised facial expressions. Their shows are influenced by cultural and social norms. Smiles

are very effective communicative cues. Social smiles are distinguishable from more sincere

smiles. Facial gestures contribute to the expressive rhythm of voice. Emotional gestures on the

face are similar, regardless of gender, culture, ethnicity, etc. When we are experiencing the

same feelings, we all exhibit similar facial expressions. However, there are ethnic and

individual variations. According to a study of congenitally impaired individuals, both blind and

normal vision people display nearly identical facial features in the same conditions. Thus, the

capacity to convey empathy through facial gestures is biologically inherited.

9 Albert Mehrabian, Nonverbal Communication 16 (Transaction Publishers, New Brunswick, NJ, 1972).

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Haptics: It is the analysis of nonverbal contact by touch. High fives, pats on your back, holding

wrist, handshakes and other forms of touch can be used to communicate. The message

communicated by touch is heavily influenced by culture.10

Vocalics: It is the analysis of paralanguage, which includes verbal filler, rate, tone, vocal

characteristics and verbal communication. Pitch aids in the regulation of conversational flow

and conveys the importance of a statement. In a trial, e.g., use a higher volume of voice to

enhance communication or to attract the Court's attention. Others will become bored if a

speaker speaks slowly. A fast speaker can be hard to understand, thus is detracting from the

speech. However, every voice has a unique characteristic defined as a vocal signature. A faster

pace of speaking paired by a friendly voice tone could be advantageous for achieving

cooperation and aiding in convincing.

Proxemics: It is the investigation into how space and distance affect connectivity and

behaviour. In general, our space is divided into 3 regions - the public zone (12 or more feet

beyond one’s body), the social zone (4–12 feet beyond one’s body), and the private zone (1.5–

4 feet beyond one’s body). These above areas occupy more area in our front, i.e. in our line of

vision, than in our back or side, which we cannot watch what persons are doing.

Chronemics: It is the analysis of, in what way time influences communication, including by

what means time cycles influence our communication, distinctions among individuals who are

past or present focused, and cultural perceptions on time as set, as well as calculated

(monochronic) or flexible yet adaptive (polychronic).

Personal presentation and environment: It is concerned with our physical features and how the

things we use to adorn ourselves and our environments, known as items, offer nonverbal clues

that others interpret regarding our social world. E.g. the architecture of a venue, as well as

seating configurations and layouts, all have an impact on communication.

Clothing: Artifactics is the analysis of clothes and other items as a form of nonverbal

communication.11 Clothing conveys an individual's appearance, origins and financial status,

society, temperament, level of trust, desires, age, power, values, and what people will react to

10 Remland, M. S., Jones, T. S, et.al., “Interpersonal distance, body orientation, and touch: The effect of culture,

gender and age” 135 (3) Journal of Social Psychology 282–296 (1995). 11 Yammiyavar, Pradeep, et.al., “Influence of Cultural Background on Non-verbal Communication in a Usability

Testing Situation” 2 International Journal of Design 33 (2008).

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them. The way an individual wears is usually influenced by inner motives such as feelings,

perceptions, as well as culture.12

NON-VERBAL COMMUNICATION IN LEGAL DISCOURSE

Chronemics, Haptics, Proxemics, and Kinesics are the most popular nonverbal communication

techniques used by attorneys. The transmission of context through the use of verbal symbols is

referred to as nonverbal communication. Nonverbal behaviours are swayed by culture in

various forms: male-female, culture's concern about complexity (uncertainty avoidance),

hegemony (power distance), and individualism-collectivism. “In the context of court trials,

the nonverbal actions can be observed when: (a) when attorneys and clients converse; (b) when

attorneys present their closing and opening statements; (c) when attorneys question and cross-

examine witnesses; (d) where witnesses testify; and (e) when adjudicators converse with

witnesses and lawyers.”13 Nonverbal contact, however, encompasses far more than just the

presenter's face and offers parties with input to plan and handle in-person communications on

a moment-by-moment level in the pursuit of participants' interests. “The analysis of body

language that comprises artifactis, oculesics, facial expressions, posture, hand movements and

gestures is called Kinesics.”

MAJOR TYPES OF NON-VERBAL COMMUNICATIONS USED IN LEGAL

DISCOURSE

1. Gestures. — These are hand motions that are used. There are six different styles of gestures:

- Enumerative; where the prosecutor uses his or her fingertips to indicate one, two, or three in

order to help the client comprehend a number-related concept; Descriptive; where the client

uses hand gestures to signify large, thin, long, and so on; Locative; when the prosecutor shows

the client where to sign, or where the advisor points the client to the attorney's place; Emphatic;

where a prosecutor uses hand gestures to emphasize a critical argument to the client; Adaptive:

12 LearnVest, “What Your Clothes Say About You”, Forbes, April 3, 2012, available at:

https://www.forbes.com/sites/learnvest/2012/04/03/what-your-clothes-say-about-you/?sh=4b0490b66992 (last

visited on May 27, 2021). 13 Vincent Denault and Miles Patterson, “Justice and Nonverbal Communication in a Post-pandemic World” 45 Journal of Nonverbal Behaviour 4 (2020).

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when individuals are under pressure, they use this term like, scratching the cheek, rubbing the

nose, pinching the mouth, playing with a marker, moving the knee, and so on. All of these are

signs of tension or even efforts to say a lie; Symbolic; hand gestures such as ‘Namaste' to

welcome a client. They are unique to each culture. The prosecutor must welcome the client in

accordance with the client's cultural standards. Otherwise, a cultural barrier could arise.

Cultural Gaps may be indicated by Symbolic Gestures.

2. Posture. — It applies to how we hold ourselves while sitting, standing, or walking. When

the elbows are stuck out, it stops someone from quickly passing us and is a symbol of

superiority that means we're primed for trial, as attorneys will do. When seated, leaning back

reveals insouciance and ignorance, whereas straddling a chair is a symbol of superiority that

attorneys should resist. Low confidence posture: Usually demonstrated by the client; crossed

legs, hands linked in front, loose shoulder arms crossed at the chest; and head down. High

confidence posture: the attorney's back must be straight; his or her shoulders must be firm; and

his or her hands and arms must be placed tightly near the body. Many of these demonstrate

attentiveness. In order to pay interest, the prosecutor should even lean slightly toward its

customer. Both the counsel and the client should adopt a variety of postures.

3. Facial Expressions. — Our facial expressions reveal our feelings towards others. It also

shows our emotional state - if we are furious, sad, or other. The Attorney must have authority

of his or her facial expressions. He or she might be genuinely surprised at any of the client's

comments. However, his/her extreme reaction may prevent the client from continuing to talk

or may allow the client to communicate on unnecessary information. A sincere concern gesture

will assist the counsel in connecting with the customer. To set a constructive tone in the

courtroom, make a quick eye contact with the adjudicator and smile to convey friendliness,

transparency, and trust. Please ensure your facial expressions correspond to the substance of

your voice. When presenting a humorous message, a grin, bright eyes, and gently lifted brows

are appropriate. When giving a serious message, a wrinkly eyebrow a snugger jaw, as well as

a subtle head nod could help. Micro-expressions are subconscious, very rapid (sometimes one-

tenth of a second) displays of feeling that are full-face or partial and very brief. It is very useful

for judges and attorneys to consider other people's views, interests, personalities, or motives,

or to determine if an individual is covering up information.

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4. Eye contact/ Oculesics. — At all times, the prosecutor should retain eye contact with the

client. Notes should be taken in such a way that eye contact is not interrupted very frequently

A counsel may use eye contact to decide whether or not the judge is interested, disturbed, or

annoyed, and then adjust his or her response appropriately. The client's eye movements can

suggest whether he is lying or telling the facts.14 In addition, the advocate should understand

the client's cultural context.15 Some traditions, such as rural India, forbid women from making

regular eye contact with others outside the home, such as rural women refusing immediate eye

contact in a court meeting. A witness or accused may stop eye contact to signal to the opposing

lawyer that they do not wish to engage or query the individual further.

5. Artifacts. — Humans have a propensity to make snap judgments based on their first

impressions. Our height, weight, hair, skin quality, and teeth are all evaluated. A fit and healthy

and well-maintained appearance makes a pleasant first impact on the customer. In addition, the

clothing we wear ought to be traditional. It is often best to resist wearing skin-revealing

clothing during a therapy session. In addition, jewelleries should be avoided to wear. In the

session, no heavy perfume should be worn. Attorneys can dress decently in front of clients and

judges by wearing a plain and classy watch and polished black leather shoes. Phones must be

turned off at hearings and counselling sessions to avoid being disrespectful.

6. Proxemics (distance). — Depending on the essence of our interaction with the people in

question, we retain social distance with them. Intimate Space (50 cm): Only those who are

physically close to you are permitted to join. Criminals access this region on purpose to annoy

or intimidate us. Members of the family and personal associates share a Friendly space (50cm

to 1.5m). Colleagues share the Social space (1.5m to 3.6m). Zone of the Audience (more than

3.6m).16 Proxemics between lawyers and clients: It comes into the category of social space.

For counselling, having seats that are closely spaced is a smart idea. So much distance would

prevent the customer from providing sensitive information. Nevertheless, being too near can

make the attorney seem unprofessional. As a result, seats that are 1.5 to 4.5 m apart are perfect.

14 K. Hogan and R. Stubbs, Can’t Get Through: 8 Barriers To Communication (Pelican Publishing Company,

Gretna, 2003). 15 “Top 8 Cultural Differences in Nonverbal Communication”, Point Park University | Online, 24 May 2021,

available at: https://online.pointpark.edu/business/cultural-differences-in-nonverbal-communication/ (last visited

on 28 May, 2021). 16 Sluzki, E Carlos, “Proxemics in Couple Interactions: Rekindling an Old Optic” 55 (1) Family Process 7-15

(2015).

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7. Haptics. — It denotes "contact coordination." When used positively, it is used to express

fellow-feeling, encouragement, and empathy. Haptics in Counselling: Haptics can be used with

caution while counselling. Touching a client's arms or back may help to calm him or her down.

Nevertheless, culture can influence touch perception. If the customer is from a society where

strangers are not touched or shaken hands, haptics can be stopped.

8. Chronemics. — It is the professional time language. Our promptness sends a good note to

our customers. A prosecutor may only focus on the client being on time and completing the

counselling on time if she or he is punctual. While counselling, multitasking is not a good idea.

Both the prosecutor and the customer should switch their phones to quiet mode.

9. Head Movement. — In a court, a head up suggests an interested or impartial mood. A head

tilt indicates interest and is unconscious compliance expression which reveals the jaw. It will

help the adjudicator feel more accepting of the person. While a head down implies pessimistic

defiance, which should be prevented.

JUDGE'S NON-VERBAL DISCOURSE

If the judge nonverbally expresses a bias or prejudice against the client, the attorney should

timely object and describe the conduct for preservation in the record so it can be used as

grounds for appeal. Because the majority of the judge's body is concealed behind his desk, the

only nonverbal behaviour noticeable is his facial expressions and hand gestures. As a result,

the lawyer should be on the lookout for any indications of animosity on the part of the court

against his client. A reviewing court could view an adjudicator's instruction to ignore his

nonverbal behaviour as an appropriate remedy for any potential harm done.17 Although

judiciary agrees that an adjudicator's nonverbal communications could be grounds for reversal

on appeal or a mistrial ruling, they are hesitant to overturn solely on such grounds.

17 Elizabeth A. LeVan, “Nonverbal Communication in the Courtroom: Attorney Beware” 8 Law & Psychology

Review 83 (1984).

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ATTORNEY'S NON-VERBAL DISCOURSE

Williams and Mehrabian performed studies that showed that speakers that used more eye

contact, gestures, facial movement, less self-touching, mild relaxing, close distances, greater

vocal volume18, faster talking time19, and, for men, addressing the crowd less squarely were

more convincing.20 A paralanguage research discovered that speakers who talk in monotone

and seldom change their voice pitch are much less reliable and convincing to observers. An

analysis of voice pitch and speaking rate found that men who slow down their speech rate and

raise their voice pitch are seen as less convincing than people who talk louder with a low pitch

voice.21 Verbal signals that are closely coordinated with kinesic cues are more convincing than

verbal messages that are not. Physical appearance is often a significant element of a

communicator's persuasiveness. In every situation, the attorney may be mindful of his own

nonverbal contact during the trial and how it can influence or discourage the judgement of

adjudicator.

CLIENT'S NON-VERBAL DISCOURSE

However, the judge will sometimes watch the client while he is sitting at counsel's table during

a witness's testimony, counsel's argument, or when the attorneys approach the judge's bench.

Because the client is normally sitting beside the counsel, the lawyer may quickly warn him that

he is displaying nonverbal behaviour that could be detrimental to his case. Since the client is

normally silent for the most of the hearing, he is not the centre of attention. According to one

report, when an ugly female respondent is judged by a male, she is more expected to be found

guilty and sentenced harshly than a beautiful respondent.22 Another research suggests that when

challenged to remain unbiased, adjudicators would ‘lean over backwards' to be lenient on

unattractive suspects.23

18 Packwood, “Loudness as a Variable in Persuasion” 21 Journal of Counselling Psychology 2 (1974). 19 Miller, Maruyama, Beaber & Valone, “Speed of Speech and Persuasion” 34 Journal of Personality and Social

Psychology 619 (1976). 20 Mehrabian & Williams, “Nonverbal Concomitants of Perceived and Intended Persuasiveness”, 13 Journal of

Personality and Social Psychology 52 (1969). 21 Apple, Streeter & Krauss, “Effects of Pitch and Speech Rate on Personal Attributions”, 37 Journal of

Personality and Social Psychology 723 (1979). 22 Efran, “The Effect of Physical Appearance on the Judgment of Guilt, Interpersonal Attraction, and Severity of

Recommended Punishment in a Simulated Jury Task”, 8 Journal of Research in Personality 51 (1974). 23 Friend & Vinson, “Leaning Over Backwards: Jurors' Responses to Defendants' Attractiveness”, 24 Journal of

Communication 127-129 (1974).

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WITENESS'S NON-VERBAL DISCOURSE

A witness could be critical to winning a lawsuit, thus they must be as prepared as possible prior

going to trial. The witness could be apprehensive because he is in the intensive scrutiny of the

judges and under stress to respond the lawyer's queries. If one is frightened, he may

demonstrate harmful nonverbal communication accidentally. As a result, the witness may

mistakenly convey the appearance to the judges that he is doubtful about his own statement.24

“Anxious conduct, which may be viewed as deceptive conduct is indicated by self-adapters

such as rubbing one's chin or nose, digging into one's hands, grasping one's knees, and picking

at one's fingernails.”25

As per one study, “males with high-pitched voices and who talked slowly are seen as less

genuine and more worried than men with low-pitched voices and who responded quickly.”26 A

lawyer can prevent having his witness look frightened by making him feel secure and

encouraging him to relax and take his time answering to queries. Experiments reveal that

deceptive communicators, usually, nod and gesture little, lean ahead less, say less, speak

relatively slowly, grin more, as well as display quite agreeable facial expressions then honest

communicators.27 The witness could be dishonest or anxious; in any scenario, the lawyer may

exploit the other side's witness's apparent weakness in cross-examination to make him look less

trustworthy to the court and to disclose his deception.

ROLE OF NON-VERBAL DISCOURSE IN CONTEMPORARY LEGAL FIELD

Usually, verbal language is replaced by non-verbal communication. Let’s understand this by

the following. Accentuation: Emphasizing the seriousness of an order or appeal. E.g., using

hand gestures to show that a critical point is being addressed; Complementing: Our facial

expressions indicate whether we are happy or unhappy, upset or peaceful. People want to

translate our gestures to determine if we are trustworthy; Contradicting: To be polite, we often

mask our emotions and anger; similarly, when confronted by our rivals, we try to display the

24 Morrill, “Enter-The Video Tape Trial” 3 John Marshall Journal 245 (1970). 25 Ekman & Friesen, “Nonverbal Leakage and Clues to Deception”, in S. Weitz (eds.), Nonverbal Communication:

Readings with Commentary 281 (1974); McClintock & Hunt, “Nonverbal Indicators of Affect and Deception in

an Interview Setting” 5 Journal of Applied Social Psychology 64 (1975). 26 supra note 21, at 720. 27 Mehrabian, “Nonverbal Betrayal of Feelings” 5 Journal of Experimental Research in Personality 73 (1971).

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contrary of what we are thinking in our minds. Thus, nonverbal speech is used to refute our

inner thoughts in order to protect ourselves; Regulating: When someone is speaking, we should

allow him to continue by using gestures of hand. We may also request that he stop by displaying

our hand; Substituting: Where there is a language difference where the sender and recipient do

not understand the same language, sign language is used. We also use sign language in an

incident or in a loud environment. For example, a smoke alarm; traffic control by lights and

hand gestures by cops.

The ongoing interaction of nonverbal symbols endures to have a powerful influence on the

judgments of lawyers, judges, and witnesses. Nonverbal discourse in the courtrooms has an

elusive effect on the whole trial. In his or her voice, the defender or counsel practices eye

contact and gestures to persuade the bench that he or she is right. In the American legal system,

the judge expresses his/her opinions about the trial to the jurors through body posture as well

as facial gestures. When building a rapport, using warm nonverbal cues (gentle voice tone,

close distance, eye contact, and smile) while eliminating antagonism elements (sarcastic tone,

distortion gestures). A rapport is described as the adopting of identical poses (the mimicking)

of synchronised body movements, facial expressions or speech styles.

Several years of research have shown that the interpretation of guilt or innocence is mostly

determined by the defender's nonverbal contact. Thus, reputation is a combination of the

following elements: social skills, character integrity, dynamism, friendliness and confidence.

As the person communicates nonverbal cues to question the receiver's assumptions, he

becomes more convincing. The speaker becomes more persuasive if he uses nonverbal

communication to challenge the message's recipient's expectations. E.g., an excellent lawyer

can earn respect by speaking loudly than the judges expect. If the prosecutor switches from his

conservative attire to something more casual. The new style offers a rational and strong

statement that can demolish the members' assumptions and thereby become more credible.

According to studies, speakers became more persuasive as they speak fluently while keeping

eye contact, the expressiveness of their facial expressions, and the absence of agitation- free

movements.

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CONCLUSION

Observations in common is that the competing attorneys sought to construct their respective

interpretations of facts involving interaction in two companies engaged in the case. While

participant observers are more likely to trust and locate credible details obtained using

observation, this is not always the case for lawyers. Since the prosecutors are generally

steadfast in their tactic of perplexing the jurors, they dismiss observational evidence gathered

during the proceedings as irrelevant. Apart from listening and learning from other lawyers and

judges by observation, to be at the courtroom is helpful for both you and the practise. Nonverbal

contact in court trials is significant aspect that is underappreciated.

The research presented in this article proposed that nonverbal contact conveyed during a trial

is mainly through voice sound, gestures and facial expressions. Yet, many other forms of

nonverbal contact are used at the trial and contribute to the judgement process. Cultural and

racial disparities between the judges and the plaintiffs, clients, or lawyers can also influence

his or her opinion. The judge's opinion can be even influenced by the nonverbal nature of pupil

dilation. While nonverbal contact by jurors, judges, claimants, and prosecutors will not be the

sole determinant of the case's result, the lawyer should be mindful of its potential persuasive

and dissuasive impact on the adjudicators. According to some researchers, the growing body

of psychology literature on the impact of subconscious nonverbal influence has allowed

lawyers to enhance their courtroom efficacy.

Judges and attorneys should bear in mind that the many nuances or perceptions of nonverbal

behaviours, affected by cultural contexts or other influences, preclude literal interpretations,

but that only giving attention to the text at the cost of expressions, facial displays, and eye gaze

isn't without its risks. Nonverbal contact can be used by judges and attorneys to enhance their

comprehension of evidence and their evidence by providing a more complete understanding of

the nuances of communicating and the various explanations for the nonverbal behaviours they

observe. While these recommendations are straightforward, they have the potential to have a

significant positive effect on the legal system.

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Handle with Care: Fragility of Special Marriage Act in Interfaith And

Inter-caste Marriages

Achintya Anita Gurumurthy

ABSTRACT

The Special Marriage Act, 1954 (SMA) is legislation that provides for civil marriage between

individuals regardless of their caste, community, religious belonging, or nationality. While SMA

appears to bridge the gap between personal law and secularism, it is essential to account for the

problematic politics that is embedded in the language and experience of the Special Marriage Act. A

cursory glance at the SMA indicates a secular law, but a closer reading of the text reveals that it is

embedded within a Brahminical and patriarchal ideology. Additionally, the procedural aspects of

the law and empirical experiences of the SMA show that the secular agenda of the legislation is

constantly undermined by everyday actors. Therefore, it is necessary to examine the language and

ethnographic implications of the SMA to determine the extent of its secular and radical potential.


INTRODUCTION

Embodying aspirations of secular nationhood and social change, the Special Marriage Act

(SMA) was introduced in post-colonial India as vanguardist legislation. Demands for the law

were part of a larger project of nation-building, in the aftermath of colonial rule and partition

violence. With the recent din surrounding the ‘love jihad legislation, the discourse surrounding

the rights of inter-faith and inter-caste couples has turned to the SMA. Legal scholars have

juxtaposed the anti-conversion ‘love jihad legislation and the SMA, holding up the latter as a

secular, gender-just and revolutionary legislation that preserves the diverse social fabric of

India. It is necessary to ask whether the SMA – characterised as the impenetrable fortress

against the ensuing war on love -- is as radical as it is deemed. A close investigation of the

ideologies embedded in the language of the SMA, coupled with its procedural and experiential

aspects suggests that its progressive facade obscures a darker underbelly of parochial politics.

LANGUAGE AND EMBEDDED IDEOLOGIES

The SMA can be located within the parallel historical processes of “legal Hinduism” and the

communal politics surrounding the Uniform Civil Code1. The SMA was enacted in the 1950s

Law Student, Jindal Global Law School, Sonipat, Haryana - India. 1 Flavia Agnes, “Law and Gender Inequality – The Politics of Women’s Rights in India” in Malla Khullar (ed.),

Writing the Women's Movement: A Reader 118 (Zubaan, New Delhi, 2005).

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during the decline of Nehruvian secularism, which eventually culminated in the rise of

communal politics in the Rajiv Gandhi era2. The Hindu and Brahminical influences are visible

through several instances in the Act. For example, the provision for “prohibited degrees of

relationship” in the SMA is similar to the Hindu Marriage Act (HMA)3. Section 15 of the SMA

elaborates that for a valid solemnisation or registration of marriage, parties should not be within

the degrees of prohibited relationship4. Several communities including Muslims, Parsis, Jews

and certain South Indian communities do not have similar requirements, a fact that attests to

the hegemonic Brahminical emphasis on the law. Additionally, Vanita5 argues that such a clause

undermines the very objective of the Act, which is to enable individuals to marry freely despite

their religion. She further suggests that such a provision is absurd since it prohibits marriage

between consenting individuals, thereby not according equality before the law6.

In an amendment in 1963 to the SMA, the Act was subsumed under customary practices. While

before the amendment, religious personal law was subordinate to the secular character of the

SMA, the amendment reversed such a legislative relationship. Additionally, an amendment to

the HMA in 1976 expanded its ambit to include progressive provisions, including the

incorporation of ‘mutual consent’ in divorce. Agnes argues that through these changes, the

remedies and provisions in the HMA and SMA were being coordinated and placed on par7.

Moreover, the amendment to the SMA in 1972 awarded concessions to Hindu men, as it

permitted Hindu couples married under the SMA to be governed by the Hindu Succession Act,

as opposed to the Indian Succession Act, 1925. The restructuring of legislative mechanisms of

the SMA further denied progressive Hindu couples the choice to be governed within secular

law8. The modifications made to the SMA consolidated the power of Hindu men, reproducing

a patriarchal grounding to the law. The history of the SMA – tied as it was to a steady

progression towards legal Hinduism – illustrates how efforts in the Indian context to make a

secular law have been shaped by power structures and ideology.

2 Ibid. 3 The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 3g. 4 Special Marriage Act, 1954 (Act No.43 of 1954), s. 15. 5 Ruth Vanitha, “The Special Marriage Act: Not Special Enough” 58 Manushi 15-21 (1990). 6 Id. at 20. 7 Supra note 1. 8 Supra note 1.

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Examining the Lok Sabha discussions surrounding marriage and personal law, Gangoli9 argues

that Indian secularism is undercut because of what is constructed as the ‘Indian’ norm. In this

regard, she suggests that in the legislative debates in India surrounding marriage, several

assumptions have been made about what it means to be ‘Indian’, and by extension, “an Indian

citizen”10. As Menon cautions, the uniformity in secularism is not always gendered just, and it

is essential to therefore situate debates around marriage concerning the Brahminical and

patriarchal beliefs assumed to be the norm11. For instance, Gangoli12 cites Lok Sabha debates

in 1976 in which it was suggested that in “Indian culture and tradition, marriage is a sacred and

eternal bond. When a man and a woman enter into marriage, our culture and civilisation tell

them that only death can separate the two”. This construction of Indian culture as being

monolithic and uniform amounts to an erasure of its pluralistic and composite character.

Additionally, the construction of marriage as sacramental further erodes rational secularism

and obscures the practices of Islamic communities from its ambit. Gangoli13 also flags that in

the 1986 debates about the Muslim Women (Protection of Rights on Divorce) Act, Members

of Parliament expressed discomfort with the contractual basis of Islamic marriage, suggesting

that it is inferior to Hindu marriages. It is therefore essential to recognise that the structural

forces of majoritarianism and patriarchy often contour the presumptions of lawmakers. Secular

laws like the SMA need to be located historically to identify the hegemonic and structural

influences that operate during the process of their drafting. The emphasis on the sacrament, and

the homogenisation of Indian culture within a Brahminical norm reveals how secular

legislation is constantly evacuated of its progressive potential.

The question of the Brahminical and patriarchal language embedded in the SMA also needs to

be interrogated for how it depicts women. Gangoli14 suggests that the construction of secular

law is perceived to be “dangerous” and potentially carrying the possibility for women’s sexual

9 Geetanjali Gangoli, Indian Feminisms Law, Patriarchies and Violence in India (Routledge, New York, 2016). 10 Id. at 54. 11 Nivedita Menon, “Uniform Civil Code – Once again, where is gender justice?” KAFILA, July 15 2016, available

at < https://kafila.online/2016/07/15/uniform-civil-code-once-again-where-is-gender-justice/> (last visited on

March 31, 2021). 12 Supra note 9 at 54. 13 Supra note 9 at 54. 14 Supra note 9 at 81.

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autonomy and agency. Such anxieties result in the blunting of the radical potential of such a

law. For instance, Section 37(3) of the SMA which discusses maintenance states that a district

court can modify a maintenance decree when “the wife in whose favour an order has been made

under this section has remarried or is not leading a chaste life”15. The invocation of chastity in

this regard indicates that the SMA seeks to control sexual autonomy. It is essential to note that

Brahminical patriarchal structures exert control over women’s bodies to preserve caste purity.

It is in this regard that Ambedkar described caste as an enclosed class16. The reference to

chastity points to the reproduction of casteist norms that police the bodies and agency of

women. Rooted in a Brahminical foundation and invoking regressive ideas of women’s

chastity, the SMA reproduces patriarchal and casteist tropes.

Further, because the SMA adopts a Hindu norm, it stands as an important metaphor for the

contradictions within the Indian feminist movement. Gangoli17 suggests that debates

surrounding the SMA assume a patronising tone, as women from minority communities are

expected to take on the burden of reforming their own personal laws. Also, by advocating for

“internal reforms” within the Muslim personal law, proponents of the SMA display a

condescending attitude towards minority communities and their personal law. This construction

of communities as “inherently backward”18 exists within the hegemonic ideology of the SMA.

The SMA, like the HMA, presupposes itself to be progressive and radical, dismissing the power

structures that it reproduces. Therefore, the progressive and radical imagination supposedly

embedded within the SMA is highly questionable.

It is essential to recognise the class politics that are embedded within the history of the SMA.

For instance, when the provision for mutual consent as grounds for divorce was integrated into

the SMA, it was done with the image of an “educated, sophisticated, and enlightened urban-

based elite” in mind19. This reveals an underlying class prejudice within the legislation. Agnes

15 Supra note 4 at s. 37 (3). 16 Bhimrao Ambedkar, “Castes In India: Their Mechanism, Genesis and Development” 46 The Indian Antiquary

(1917). 17 Supra note 9. 18 Supra note 9 at 12. 19 Flavia Agnes, Family Law Marriage, Divorce, and Matrimonial Litigation 50 (Oxford University Press, New

Delhi, 2nd edn., 2011).

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indicates that the addition of mutual consent into Section 13B of the HMA came much later,

only in 1976, as it was perceived that the HMA was meant for the conservative Hindu masses,

who would have been vehemently opposed to such a provision20. Thus, the SMA is indicative

of bourgeois culture and anxiety in post-colonial India. Interrogating its internal class politics

enables the analysis that the egalitarian rhetoric of such legislation emerged from a history of

exclusion.

SMA AND PUBLIC NOTICES: MARRIAGE IN-BETWEEN PRIVATE AND PUBLIC

While examining the problematic politics embedded within the language of the SMA, it is also

necessary to account for how individuals experience the law. The SMA claims to transcend the

acts of violence of communalism and casteism through a “special hybridisation”21. However,

procedural aspects, including the display of notice regarding the intention to marry, the

provision about raising objections, and the 30-day notice period, all act as significant

impediments to the “silent revolution” of radical inter-caste and interfaith marriages22. These

barriers within the SMA procedure result in the reconstitution of patriarchal power structures,

in which caste and community can exercise control over women’s bodies. The experience of

the SMA is thus rooted in the structural violence of law that couples have to contend with.

Indicating that the public notice of intention is dangerous, Vanita23 argues that its public nature

could lead to harassment in the case of subversive marriages, often, inter-caste or interfaith.

The publication of such a notice attracts parental and familial intervention to prevent marriage.

By raising “irrational” objections, families may easily deny two consenting adults the

possibility of marriage24. Additionally, the publication of such notices can also result in a grave

risk to the life of a partner, as it alerts “powerful members of their communities” who might

20 Ibid. 21 Beatrice Jauregui and Tara McGuinness “Inter-Community Marriage and Social Change in Contemporary India:

Hybridity, Selectivity and Transnational Flows” 26:1 Journal of South Asian Studies, 72-79 (2003). 22 Meena Dhanda, “Runaway Marriages: A Silent Revolution?” 47 Economic and Political Weekly 100 (2012). 23 Supra note 5. 24 Supra note 5 at 20.

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consequently abduct and even kill25. It is in this regard, that Mody refers to the board of public

notices as a “wall of infamy”26.

The cacophony surrounding ‘love jihad’ has spurred organisations like the RSS, VHP and

Bajrang Dal to examine the documentation regarding public notices of intended marriage27.

The Kerala Registration website, for instance, carries several details of couples intending to

marry under the SMA, which dictates that notices must be “open for inspection” and be

available “conspicuously”28. This emphasis on disclosure has resulted in tragic consequences.

By noting essential details including names, addresses and phone numbers, Hindutva

organisations can easily access such information and alleged ‘love jihad’. They often make

use of such information, widely circulating the details of the couple on social media. In an

instance in Kerala, RSS instigators plastered the details of an interfaith Hindu-Muslim couple

on several social media platforms29. Moreover, it has been reported that the details of over 120

couples were leaked on social media from the Kerala Registration website30. Additionally,

Lucknow based lawyer, Renu Mishra, suggested that it is routine practice to summon couples

and their parents in the case of interfaith marriages to the police station and harass them31. This

is easily done due to the easy availability of such information.

In the aftermath of Justice K. S. Puttaswamy v. Union of India32, it is necessary to examine

how these public notices make couples vulnerable by compelling their data to become public.

A petition filed in the Supreme Court to remove the system of public notice from the SMA was

responded to dismissively by Chief Justice Bobde, who declared that “[The] plea is that this is

a violation of their privacy. But imagine if the wife or daughter runs away, why should they

25 Supra note 5 at 20. 26 Pervez Mody, “Love and the Law: Love-Marriage in Delhi” 36 Modern Asian Studies 243 (2002). 27 Namita Bhandare and Surbhi Karwa, “How The Special Marriage Act Is Killing Love”, article 14, October 19,

2020, available at < https://www.article-14.com/post/how-the-special-marriage-act-is-killing-love > (last visited

on March 31 2021). 28 Special Marriage Act, 1954 (Act No.43 of 1954), s.6. 29 Shiba Kurian, “To Harass Hindu-Muslim Couples, Rightwing Activists Are Now Using Their Marriage Documents” The Wire, July 20, 2020, available at < https://thewire.in/communalism/hindu-muslim-couples-love-

jihad-rightwing-marriage-notice > (last visited on March 31, 2021). 30 Id. at 27. 31 Id. at 27. 32 (2017) 10 SCC 1.

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http://www.article-14.com/post/how-the-special-marriage-act-is-killing-love



(husband, father) not come to know?”33. The Chief Justice’s statement points to the institutional

apathy that both the SMA and courts embody. Embedded in caste and patriarchal structures of

oppression, the SMA exposes vulnerable couples, through its procedural apparatus, to extreme

forms of harm. Its ostensibly secular character unleashes the same unfreedom that it seeks to

eradicate.

The stifling procedural apparatus of the SMA is evident in the fact that the practice of posting

the intended notice of marriage to the homes of the couple was stopped through a court case

only as late as 2018. In Kuldeep Singh Meena v. State of Raj and Ors, it was ruled that marriage

officers need not dispatch notices to the residences of applicants who seek to solemnise their

marriage under the SMA, as it would amount to a breach in privacy of the individuals34.

The question of caste violence must be understood as an integral aspect regarding people's

experiences of the SMA. Halder and Jaishankar35 suggest that despite the existence of secular

laws, court intervention into inter-caste marriages do not uphold the standards of individual

freedom associated with the SMA. It is in this regard, that Kandaswamy36 suggests that Indian

courts dispense a ‘caste justice’. In an instance in Tamil Nadu, the relationship between a

dominant caste girl, Divya, and Dalit boy, Ilavarasan, resulted in the death of the Dalit, and the

entire Dalit basti of the village was razed to the ground37. In another instance, a Dalit man, V.

Shankar, was hacked to death after marrying a privileged caste woman, Kausalya. Additionally,

in the criminal case against Kausalya’s family, the Madras High Court acquitted Kausalya’s

father, the primary accused, of all charges38. This was in contrast with the judgement of the

33 Samanwaya Rautray “SC issues notice to govt on petition requiring couples to give public notices before

marrying across religions” The Economic Times, September 16, 2020,

available at < https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-issues-notices-to-

govt-on-petition-requiring-public-notices-from-couples-marrying-across-religions/articleshow/78153131.cms>

(last visited on March 31 2021). 34 2018 SCC Online Raj 3469. 35 Debarati Halder and Karuppannan Jaishankar, Therapeutic Jurisprudence and Overcoming Violence Against

Women, 30-42 (IGI Global, Hershey, 2017). 36 Meena Kandswamy, No one Killed the Dalits, Seventh Anuradha Ghandy Memorial Lecture, 2015, available

at < https://www.youtube.com/watch?v=_jClj177b7k>. 37 Vidhya Bhushan Rawat, “Ilavarsan's Death and the Ugly Face of Tamil nadu's Vanniyar Politics”,

Countercurrents, July 9, 2013, available at < https://www.countercurrents.org/rawat090713.htm > (last visited on

March 31, 2021). 38 Ibid.

174

https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-issues-notices-to-govt-on-petition-requiring-public-notices-from-couples-marrying-across-religions/articleshow/78153131.cms

https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-issues-notices-to-govt-on-petition-requiring-public-notices-from-couples-marrying-across-religions/articleshow/78153131.cms

http://www.youtube.com/watch?v=_jClj177b7k

http://www.youtube.com/watch?v=_jClj177b7k

http://www.countercurrents.org/rawat090713.htm

http://www.countercurrents.org/rawat090713.htm



lower court that had sentenced the primary accused to death. Kandaswamy argues that it is a

regular practice of higher courts in India to acquit those involved in caste brutality and overturn

the harsher sentences of lower courts. It is, therefore, necessary to problematise the secular

institutions through which the SMA plays itself out, as its mechanisms, procedures and theatrics

present a caste justice39. Arguing that the Madras High Court did not employ the use of

“therapeutic justice” in the case of V Shankar, Halder and Jaishankar40 argue that Court systems

relying on the SMA do not sufficiently protect inter-caste couples and their autonomy and

rights, instead of enabling a culture of social ostracization and honour killing.

In Lata Singh v State of UP 41, the Supreme Court acknowledged that parents need not approve

of inter-caste unions. The Court further stated that parents “cannot give threats or commit or

instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-

religious marriage”42. The Court further directed the administration and police authorities to

ensure that “if any boy or girl who is a major undergoes inter-caste or inter-religious marriage

with a woman or man who is a major, the couple are not harassed by anyone nor subjected to

threats or acts of violence”. By deflecting blame to the police, the Court seems to erase caste

and patriarchal violence. Kandaswamy43 suggests that in the incidents of caste atrocities, “the

judiciary goes to great lengths to build an elaborate charade to ensure that its reputation is not

sullied”. The SMA and court, therefore, act as important ideological apparatuses for the

Brahminical Indian state; at first glance, they do not seem patriarchal, but they are entrenched

in those very structures.

LAW AS EVERYDAY PRACTICE

In his “Love Jurisdiction”, Mody44 argues that romance, relationships and rights are often

intertwined through “legal statute, procedures and everyday practices”. In his ethnographic

research in the Delhi Courts, Mody witnessed that couples were often less inclined to go the

39 Supra note 35. 40 Supra note 34 at 31. 41 (2006) 5 SCC 475. 42 Ibid. 43 Supra note 35. 44 Perveez Mody, “Love Jurisdiction” 31 Cambridge Journal of Anthropology 40 (2013.)

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SMA route, as the 30-day notice period made couples vulnerable. Court touts and marriage

lawyers would lure such couples into fast-track two-day marriages, which is sanctioned under

the HMA45. Mody comments on the ready availability of priests to perform quick, makeshift

ceremonies for couples. Mody also calls attention to the irony of “Beware of Touts” signs

hanging in the court premises46. In his interviews with several couples at the court, Mody

illustrates that couples often described that they were getting a “court marriage” without

explicitly referring to the law under which it had been made valid47. This illustrates how the

SMA as an ideological vanguard for Indian multiculturalism is absent from the court space.

The eagerness of legal actors to sidestep the SMA is, however, universes apart from its

reconstitution and reproduction in courtrooms. For instance, in Mrs Valsamma Paul v. Cochin

University and Others, the Supreme Court suggested that through the SMA “secularism would

find its fruitful and solid base for an egalitarian social order under the Constitution”48.

The provisions relating to residence as prescribed under Section 15 also places couples in a

precarious position49. Mody observes how eloping couples, who would be in danger upon being

traced are often compelled to offer friends’ addresses. These additional procedurals often

complicate the situation for couples. He notes how havaldars visiting a couple to ascertain their

proof of residence has to be bribed for providing an attestation50. It was ruled in John Lukose

v. District Registrar that under Section 16, the marriage certificate can be issued even before

the expiry of 30 days in exceptional cases51. However, in a consequent ruling in Deepak

Krishna v. District Registrar52, it was held that the statutory period of 30 days was mandatory.

In this regard, Agnes argues how the SMA does not award discretion to the Registrar of

Marriages, often worsening the plight of couples53. In its everyday practice, therefore, the SMA

is not a transformative radical law, and instead, is mired in the processes that constantly

undermine it.

45 Id. at 52. 46 Supra note 26 at 241. 47 Supra note 26 at 241. 48 AIR 1996 SC 1011. 49 Supra note 4 at s. 15. 50 Supra note 26 at 244. 51(2003) 6 KLJ 768. 52 AIR 2007 Ker 257. 53 Supra note 19 at 97.

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CONCLUSION

In conclusion, the SMA presents itself as progressive legislation at the postcolonial moment,

as it seeks to preserve marriage as a secular affair. However, at a closer glance, it is visible that

the language of the SMA carries many of the patriarchal and communal undertones that it seeks

to distance itself from. Moreover, in its procedural experience, the SMA poses several obstacles

to couples, eroding its radical potential. The analysis of the SMA should therefore not only be

limited to its idealistic construction but also include its everyday material contradictions. The

everydayness of the SMA in turn, enables it to be problematised and understood as legislation

located at the crossroads between several power structures.

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4 Id. at 11.


Draft Lakshadweep Animal Preservation Regulation, 2021:

Will it stand the test?

Deepayan Malviya

ABSTRACT

This legislative comment aims to examine the utility and feasibility of the proposed Lakshadweep Animal

Preservation Regulation. The commentary shall bring forth the state of affairs in Lakshadweep Island

and whether there is a need to preserve bovines on the island. The law must conform to the prevailing

social situations. Thus, the impact of the proposed regulation shall be examined on the lines of the

compliance mechanism laid down by the regulation. Conclusively, the question shall be addressed that

whether or not the proposed regulation will stand the test of time.


1. INTRODUCTION

“Hate crimes as a product of intolerance, ideological dominance, and prejudice

ought not to be tolerated; lest it results in a reign of terror. Extrajudicial elements

and non-state actors cannot be allowed to take the place of law or the law enforcing

agency”

-Supreme Court of India1

The purpose of the law is to regulate the affairs of civilized society. For the fulfilment of this

purpose, the law must match the aspirations of the developing society. This means, that law and

society go hand-in-hand and the law should be consistent and must honour the requirements of the

society. The draft Lakshadweep Animal Preservation Regulation, (hereinafter referred to as

Regulation) was promulgated by the President of India in 2021 to preserve “animals suitable for

milch, breeding or agricultural purposes”2

The Regulation shall apply to the whole union territory3 and shall apply to the animals specified

in the schedule.4 However, the provisions of preservation can be extended by the administrator to

Academic Tutor and TRIP Fellow, Jindal Global Law School, Sonipat, Haryana - India. 1 Deepak Misra, Tehseen S. Poonawalla v. Union of India, Writ petition (Civil), 20 (2018). 2 The Lakshadweep Animal Preservation Regulation, 2021, 11 1, available at: https://cdn.s3waas.gov.in/s358238e9ae2dd305d79c2ebc8c1883422/uploads/2021/02/2021022547.pdf. 3 Id. at 1(2).

178


17 Id. at 15.


other animals as well which deserve protection as in the opinion of the administrator.5 On the

perusal of the first schedule, it can be observed that the bovines such as “bulls, bullocks, cows,

calves, male and female buffaloes and buffalo calves” are entitled to preservation.6 For the

effective discharge of the functions laid down, the administrator shall appoint a competent

authority7 and this authority shall give certificates without which animals entitled to preservation

cannot be slaughtered.8 The regulation prohibits the slaughter of animals in places not specified

for that purpose.9 Further, animals that are to be slaughtered cannot be transported without the

permission of the Union Territory’s administrator10

Not only does the regulation prohibit the buying and selling of beef and beef products11 but also

gives the power to the competent authority to empower “any person” to enter into a premise and

ensure compliance with the regulation.12 In case there is a breach of provisions of the regulation,

a penalty can be imposed and the quantum of penalty shall range from the imprisonment of one

year to imprisonment for life with or without the imposition of fine, which may range from ten

thousand to five lac rupees.13 Further, all offences under the regulation are cognizable and non-

bailable and all attempts and abetments of offences shall be punished with the quantum of

punishment provided for the offence.14

The Regulation lays down that the persons exercising functions under the regulation are public

servants.15 The regulation also lays down that no suit shall be instituted against any person, who

does an act in good faith;16 The regulation also extends an exemption to scientific experiments and

allows slaughter of animals if they suffer from some disease that poses a danger for other animals.17

5 Id. at 2(2). 6 Id. at 11. 7 Id. at 4. 8 Id. at 5. 9 Id. at 6. 10 Id. at 7. 11 Id. at 8. 12 Id. at 9. 13 Id. at 10. 14 Id. at 11. 15 Id. at 13. 16 Id. at 14.

179


21 Supra note 2 at 7.


2. STATE OF AFFARS IN LAKSHADWEEP AND THE REGULATION

Lakshadweep is India’s smallest Union Territory and it is “an archipelago consisting of thirty-six

islands with an area of thirty-two sq. km. It is a uni-district Union Territory and comprises twelve

atolls, three reefs, five submerged banks, and ten inhabited islands. The natural landscapes, the

sandy beaches, an abundance of flora and fauna, and the absence of a rushed lifestyle enhance the

mystique of Lakshadweep”18 There are over six hundred species of marine fish, more than eighty

species of seaweeds, more than fifty species of crabs.19 It is rich in natural vegetation which is

most endangered and there is an urgent need to preserve and protect it.20 But bitterly, the

Regulation does not aim at preserving these endangered florae and fauna.

Whenever a new law is made, the need for such law is highlighted and it is made clear as to what

the law seeks to curb or regulate. But in this case, we see that many terms have been defined but

‘preservation’ has not. Moreover, no reference has been made to any other statute. With this the

meaning of the term becomes ambiguous. Though it is not necessary to define each and every term

yet the legal instrument must give a context in which the terminology must be understood.

Interesting to note here is that at one instance the regulation does mention that object of the

regulation is to be taken into consideration and that is when animals are to be transported from one

place to another within the Union Territory21 but the regulation does not lay down any objective

of the regulation. Thus, the regulation is marred with ambiguity and the execution of the regulation

will be a problem when it is implemented in the future.

To ensure compliance, the competent authority or a person authorized by the competent authority

can enter and inspect any premises. Now if the competent authority ensures compliance on its own

there fewer problems will arise but problems will emerge since wide discretion has been given to

the competent authority to appoint any person and grant powers under the regulation to ensure

compliance. The regulation does not prescribe any standards for the appointment or measures to

18 Government of India," U.T. Administration of Lakshadweep", available at: https://lakshadweep.gov.in/. 19 Planning Commission, Government of India, "Lakshadweep Development Report" 184 94, available at:

https://niti.gov.in/planningcommission.gov.in/docs/plans/stateplan/sdr/sdr_lakshadweep.pdf.(2007). 20 Sudhakar Reddy et al., "Landscape level assessment of critically endangered vegetation of Lakshadweep islands

using geo-spatial techniques"122 Journal of Earth System Science 272 (2013).

180



regulate compliance. The regulation also provides for blanket protection to the persons discharging

functions under the regulation and lays down that no legal proceedings can be instituted or filed

against a person discharging functions under the regulation. The regulation even goes a step ahead

and designated the persons discharging powers under the regulation as public servants. Just like

other cow protection laws and anti-cruelty laws, the offence under this regulation is cognizable

and non-bailable.

This kind of compliance mechanism ensures a caste divide and the oppression of the minority by

the majority. The regulation shall ensure a rise in the cow protectors to act as the eyes and ears of

law to enter, search and dispense lynch justice. The ‘good faith’ clause will work as a catalyst for

violence perpetrated by the cow vigilantes and also increase hate crimes in the country leading to

further deepening of the religious and caste divide.

India is the third-largest exporter of beef in the world22 but frequent inconsistent bans on cattle

slaughter have reduced the availability of cattle for slaughter and this has also affected the leather

and allied industries. The rural population of Lakshadweep which amounts to 29.09% of the total

is dependent upon agriculture, fishing, and animal husbandry for its livelihood.23 Data also shows

that since landholding is declining rapidly, farmers depend on the sale of milk and dairy products

for sustenance.24 The regulation, when it prevents the slaughter of bovines unless approved by the

competent authority completely fails to appreciate this fact. The regulation also ignores the fact

that feeding and the upkeep of the bovines would be a costly affair and also does not provide any

suitable measure to deal with the excessive bovines.

Because of the high cost of feeding and maintaining the cows, they are generally disowned and

they end up on the streets. The cows are found near the dump yards where they end up eating

plastic and pose a health risk for themselves. Studies have also shown evidence whereby stray

22 United States Department of Agriculture, "Livestock and Poultry: World Markets and Trade" 18 5, available at:

https://apps.fas.usda.gov/psdonline/circulars/livestock_poultry.pdf (2021). 23 Department of Planning and Statistics, "Basic Statistics 2014" 235 1–2, available at:

https://cdn.s3waas.gov.in/s358238e9ae2dd305d79c2ebc8c1883422/uploads/2018/04/2018040222-1.pdf.(2015). 24 Id. at 18.

181



cattle are responsible for road accidents.25 Thus, they also pose a risk for road users. To address

this problem, the Animal Welfare Board of India gives financial support to Animal Welfare

Organizations to set up shelter homes for animals so that the stray cattle do not pose a problem for

the public. Naturally, this system would be adopted in Lakshadweep also shortly. But recent

incidents have raised questions regarding the upkeep of the cattle at such animal shelters.26 What

we see here is a classic case of creating problems rather than solving problems.

3. WILL IT STAND THE TEST?

A good law is a law that conforms to the aspirations of society. Law should not discriminate

between factions of the society nor should it create situations that increase the hostility. The

regulation in discussion does precisely the things which should not be done. Beef production and

Beef consumption have been juxtaposed with the Muslim and Dalit identities and Lakshadweep

being a state wherein Muslims are in majority27 they occupy a central position in the incident. The

juxtaposition of religious identities becomes clearer when the regulation specifically states that a

cow, bull, or bullock shall not be slaughtered on religious days. In this context, the Hanif Quarashi

case must be remembered where the Supreme Court stated that it is “optional for a Muslim to

sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be

obligatory that a person must sacrifice a cow”28 Thus, the regulation raises questions that have

been adequately addressed by the Apex court.

The regulation prohibits the transport of animals for slaughter but the question that why exactly

this transportation of animals is being prohibited?

25 Satyam Arya et al., "Circadian variations in foraging and resting/standing activity patterns of stray street cattle of

urban Sambalpur, Odisha, India", 51 Biological Rhythm Research 50 (2020). 26 Inhumane treatment of cows across Rajasthan: FIAPO study, The Indian Express, August 11, 2016, available at:

https://indianexpress.com/article/india/india-news-india/inhumane-treatment-of-cows-across-rajasthan-fiapo-study-

2966759/. 27 Government of India, "Lakshadweep Population 2011"

https://www.census2011.co.in/census/state/lakshadweep.html (2011). 28 Mohd. Hanif Quareshi & Others v. The State Of Bihar, 1958 AIR 731, 24 (1958).

182

http://www.census2011.co.in/census/state/lakshadweep.html

http://www.census2011.co.in/census/state/lakshadweep.html



4. CONCLUSION

Lakshadweep being a land of diversity in flora and fauna experiences severe environmental

degradation with each passing day and so many diverse species in need of preservation and

protection yet Bos Taurus, whose numbers run into millions in India,29 is chosen to be preserved.

The regulation is a faulty legal instrument as firstly, no scope and objective of the regulation has

been provided. Secondly, the basic term ‘preservation’ which has been used numerous times has

not been defined anywhere in the regulation. Thirdly, compliance mechanism showers a lot of

discretion on the competent authority and ‘authorized person’ this will ensure an increase in cow

vigilantism which other parts of the country have experienced when similar laws were

implemented. Fourthly, the regulation fails to provide an alternative and/or remedy to the

aggrieved person who will mostly be farmers with less land holding who will ultimately have to

bear the increased expenses to upkeep the unproductive cattle which will ultimately be disowned.

After being disowned the animals would destroy crops in search of food.30 If the regulation

becomes law then just like The Muslim Women (Protection of Rights of Marriage) Act, 2019,

Citizenship (Amendment) Act, 2019, Jammu & Kashmir Reorganization Act, 2019, etc., it would

be challenged in the court which would be a diversion of the resources of the country. Thus, on

one hand, India aspires to become a $5 trillion economy by the end of 202531 but on the other

hand, the policies make this strong economy a distant dream.

29 Ministry of Fisheries, Animal Husbandry & Dairying, "20th Livestock Census"13 available at:

https://epashuhaat.gov.in/documents/ProvisionalKeyResultsof20thLivestockCensus.pdf (2020). 30 Ministry of Agriculture & Farmers Welfare, "Crops Destroyed by Stray Animals" available at:

https://pib.gov.in/Pressreleaseshare.aspx?PRID=1540932(2018). 31 Govt sticks to $5 trillion economy target; emphasis on infra aimed at achieving goal: DEA Secretary, The Economic

Times, February 4, 2021, available at: https://economictimes.indiatimes.com/news/economy/policy/govt-sticks-to-

usd-5-trillion-economy-target-emphasis-on-infra-aimed-at-achieving-goal-dea-secretary/articleshow/80686511.cms.

183

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