87620ca5426bb1d6beafd06a9c35de35

IJCL
INDIAN JOURNAL OF
CONTEMPORARY LAWS
VOLUME 1 ISSUE 2
JANUARY-JUNE 2015
ISSN 2394-8256
BY
CAPSTONE LEGAL
INDIAN JOURNAL OF CONTEMPORARY LAWS
VOLUME 1
JUNE 2015
PATRONS
Prof. (Dr.) R. Venkata Rao
(Vice-Chancellor, NLSIU, Bangalore)
Prof. (Dr.) Ranbir Singh
(Vice-Chancellor, NLU, Delhi)
Honble Mr. Justice N.N. Mathur
(Former Judge, High Court of Rajasthan and Gujarat)
Prof. (Dr.) Mahendra Pal Singh
(Chancellor, Central University of Haryana)
Prof. (Dr.) T. Ramakrishna
(Professor of Law NLSIU, Bangalore)
Prof. (Dr.) M.K. Ramesh
(Professor of Law NLSIU, Bangalore)
Prof. (Dr.) T.V. Subba Rao
(Director, Research and Development NLSIU, Bangalore)
ISSUE 2
ABOUT US
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EDITORIAL BOARD
CHIEF EDITOR
Harshad Kapoor
Harshad is the Chief Editor of Indian Journal of Contemporary Laws and plays a
key role in the success of the journal. He is a young and energetic student of law
and has recently graduated from University Five Year Law College, University
of Rajasthan. Apart from his outstanding academic record, he also represented
his institution in many National & International activities.
EDITORS
Bhavya Singhal
Student of Law
Institute of Law, NIRMA University
Akshay Jain
Student of Law
Rajasthan University, Jaipur
VOLUME 1
JUNE 2015
ISSUE 2
IJCL
Mode of Citation: 2015 IJCL I (2)
Copyright 2015: The copyright to the articles shall vest with the respective
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in this journal by any person other than the author(s) of the article, without
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Disclaimer: Indian Journal of Contemporary Laws upholds the freedom of speech
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TABLE OF CONTENTS
Articles
1. TOWARDS A COMPREHENSIVE WATER LAW FOR
RAJASTHAN
Dr.M.K.Ramesh
2. CAN RIGHTS BE LIMITED UNDER THE GARB OF RELIGION :

AN ANALYSIS IN LIGHT OF THE SHABNAM HASHMI CASE
Smiti Singrodia
3. THE LAW, VIDEOCONFERENCING, AND AN EVOLVING

JUDICIAL SYSTEM
Kartik Chawla &Trishi Jindal
16
4. AN INTERFACE BETWEEN CONSUMERS RIGHT TO ACCESS

TO HEALTHCARE AND THE COMPETITION REGIME OF
INDIA
Vandana Kumari
25
5. TAXATION OF SOFTWARE IN INDIA: AN INSIGHT INTO THE

ISSUES
Swatilekha Chakraborty
35
6. CHILD PORNOGRAPHY ON THE INTERNET INNOCENCE

ENDANGERED
Nazuk Singhal & Himanshu Gupta
48
7. RE-VISITING THE RIGHT TO PRIVACY

Praharsh Johorey
61
8. A GENE PATENTING BREAKTHROUGH: THE MYRIAD STORY

Pooja Shankar
86
9. WOMENS RIGHT: 20+ YEARS OF THE BEIJING CONFERENCE
Saif Rasul Khan
115
10. IMPLEMENTATION OF FOREST RIGHTS ACT, 2006 IN TIGER

RESERVES:INTERPLAY BETWEEN THE INDIAN FORESTS
ACT, 1927 AND THE WILDLIFE PROTECTION ACT, 1972 IN
AREAS DECLARED TO BE CRITICAL HABITATS FOR TIGERS
Roshini Bansal & Rachana.K
140
VOLUME 1
JUNE 2015
ISSUE 2
TOWARDS A COMPREHENSIVE WATER LAW FOR

RAJASTHAN
Dr.M.K.Ramesh
SETTING: Elixer of life, life support and life giver- are the very
many attributes of water.
Each
of these, in their own way, underline the inestimable value of
water. While life cannot sustain itself without water, the resource is not
uniformly distributed all over. It is found in abundance in some, scarce in
quite a few and next to nothing in quite a few other regions. Relating and
determining the Right over water to the nature relationship that one has over
land adds to the problem of access to and use of water for all and raises
questions of equity and justness. Meeting the basic need, prioritizing water
use and balancing competing and conflicting interests pose a major challenge
to water governance. There are other challenges like, the sectoral approach to
water management, with different departments of the State acting in silos and
often times, in conflict with each other, exacerbating the problem of water
governance. Water Pricing and the growing market for water that has
transformed water from a natural resource into a commodity, in recent times,
has introduced the economic dimension to the situation. This raises questions
about the role and responsibility of the State and its agencies over the resource
and in making it available to the people, judiciously and in a sustainable
manner. Communitarian interests and the extent and limits of the rights of
owner of land over water; the need and justifications for the participation of
the private player in water resource management, have made the water
governance scenario more complex and complicated. Vague formulations of
Policies, a plethora of laws and an administrative apparatus specialized in
2015]
TOWARDS A COMPREHENSIVE WATER LAW
dealing with parts of the resource than the whole of it, have been successful in
contributing to the confusion.
If this is the national setting, the situation in the State of Rajasthan is in
no way different. As a matter of fact, it is far more serious, as the team from
the National law School of India University (NLSIU) realized, less than a
couple of years back. The following is a brief account of the engagement of
the Law School in assisting the Government of Rajasthan in clearing the
above stated confusion and complications about Water Governance, by
crafting a Comprehensive Water Law for the State.
CONTEXT: Acute scarcity of water, overwhelming dependence on
water made available by the neighbouring state and the increasing difficulty
in making even drinking water available to the people, during summer
months, for a number of
years, in recent times, made the Rajasthan
Government take stock and review its policies, programmes of action, laws,
structures of governance and their functioning in water management. The
crisis in water governance compelled the State to look for solutions, that
would be effective and lasting as to meet the basic needs of the people, ensure
harmony in the working of different agencies of state and address problems of
water scarcity and acute drinking water shortage, feed areas with low
productivity, low rainfall and high incidence of poverty, etc. It began an
exercise in studying the best practices in different parts of the world and draw
lessons for them. The European Union became an ally and assisted the
government in diagnosing the ailment and in finding the cure.
A detailed
report prepared by an expert team, on behalf of the European Union,

highlighted the inadequacies in the system, as indicated above and made a
case for initiating legislative and administrative reforms for an integrated
water resource management regime for Rajasthan. Confronted with the
continuing spectra of severe drought and water scarce situation, the political
leadership resolved to initiate legal reforms for better water governance in the
State. Cutting across party lines, all the political parties desired reforms to be
initiated in the Water Sector to get over the crisis. The State Government
approached the Commons Cell in NLSIU, to help it prepare a Blue-Print for
VOL 1:2
Reform in the Water Sector, by drafting an overarching Comprehensive Water

Law for Rajasthan.
PROCESS: It is a scientific truth, that is rooted in commonsense, that
all life forms and natural ecosystems are inter-connected, deriving strength
and succour from each other for their sustenance and well-being, that any
effort in dealing with one aspect, species or eco-system would, besides being
counterproductive, lead to ruin and destruction of the entire environmental
condition and integrity. The Commons Cell, the nascent, fledging and newly
established outfit in the Law School, is guided by this holistic approach in
Natural Resource Governance, that requires an integrated approach to the
management of natural resources, in a seam less and continuous way;
cooperation, harmony and pooling together the synergies of each and every
administrative arrangement associated with land, water, forests and other
resources, in a complementary manner and centre-stage the local government
and Communities of people, as the primary unit of resource governance. It
had a major challenge, when the Overarching Comprehensive Water Law
Project was assigned to it. Both at the conceptual level and the operational
domain, the legal ordering presented a confusing kaleidoscope of a resource
management regime that defied both Scientific Reasoning and Commonsense.
In addition, there were no precedents of an Overarching Comprehensive
Water Law anywhere, to guide, either in India or elsewhere. There existed, no
Models to emulate. The Commons Cell had to charter its own course.
It seemed like a hopeless situation. But, ideas and inspiration, on
different strands of the daunting research activity, were never in short supply!
It was both a challenge and an opportunity, to re-view the whole gamut of
laws and systems of administration concerning natural resources. It created
the scope for the research team to engage in a serious and in depth analysis of
a variety of things it could lay its hands on, to extract the hidden spaces in the
existing body of law, administrative practices, customs and traditions etc. to
construct a legal regime that would approximate to the expectations. The
exercise that followed was educative, illuminating and highly rewarding. The
study of the practices and traditions of the communities of people were,
2015]
indeed , lessons in water resource conservation, use and management, in

different regions(- as evidenced in a number of research publications, that
included the most illuminating work on the subject, Dying Wisdom, published
by the Centre for Science and Environment). To mention a few, the
Traditional Water Conservation techniques, brought to great visibility and
application by the Tarun Bharat Sangh, Alwar, in Rajasthan (- Johads) and
community-based water resource management evolved by it (- Jal Biradari) ;
the management systems evolved by Communities in Maharashtra (- Pani
Panchayats), the Raleigh Gaon Sindhi experiment in Ahmed Nagar (- that
integrated resource and eco-system management and made it sustainable) and
the management techniques of the families of Neeruganti , in the south,
were truly eye openers, compelling one to
find the place and create a
significant a
legal space
for these in the law for Water Resource
Management.
Analysis of the systems prevalent in other legal systems,
helped a great deal. For instance, South Africa provided the legal base for the
right to water. Israel (- that has desert-like condition, in common with
Rajasthan), provided insights into water conservation and its sustainable use.
Bolivia, demonstrated the negative aspects of the impact of Water
Privatisation. New Zealand and, to some extent, the Scandinavian Countries,
provided a prototype for a Model Governance Structure for the management
of Natural Resources. International legal developments, showed the way for
an integrated water resource management regime and the European
Framework Directive, gave first lessons in River Basin and Eco-system
Management. Back home, the National Water Policy and the Framework Law
initiative gave ideas
and the
principles to
guide and steer the Water
Resource Management System in India, in a more systematic and

comprehensive way. The efforts in Andhra Pradesh integrating Land, Water
and Trees Management through law showed the possible directions in which
one may proceed in the law-making exercise.
Instances of Community
Engagement, by the administration, in Water Resource Management, through

a number of government sponsored activities like, Swajaldhara experiment
and the creation of Water Users Associations, were illustrative examples of
VOL 1:2
creative capabilities of the State in looking beyond its line agencies for
effective management of water resources with public participation and
partnership. Creation of independent regulatory authorities, for effectively
addressing management issues concerning water, as attempted by the State of
Maharashtra, presented a model of management different from the existing
state model.
While, all these provided enough deskwork to flesh out the best of
ideas, frames and
management
tools, from the existing practices,
consultation with various groups provided rare insights into the inadequacies
and possibilities within the current system and expectations as to the design
and the content of the law for the State. The Commons Cell devoted
substantial time in engaging in a series of dialogues and deliberations with

voluntary groups, line agencies, policy makers, legislators, experts and legal
professionals. Spread over a period of a year, the Consultations included
examination and critique of a number of legislative drafts prepared for the
purpose. After carrying out a variety of activities for well over 16 months (like, research study, consultations and Workshops), the Commons Cell
submitted its Draft of a comprehensive water law for Rajasthan, during the
last week of December, 2011.
PRODUCT & ITS CONTENT: MAJOR FEATURES OF THE BILL
Entitled, RAJASTHAN WATER RESOURCES MANAGEMENT
ACT, 2012, the Bill has the following salient features:
Principles & Strategies:
The legislative draft was an effort in putting the foundational principles
and strategies of water governance upfront, to determine the relative roles,
relations, rights, entitlements, responsibilities and functions of the agencies of
state, people and industry with regard to the resource. While Public Trust,
determined the role of the State and its administrative apparatus, obligation of
Conservation overarched all the rights, demands and entitlements. The legal
strategies evolved and avenues explored included, mechanisms that met
critical ecological (- like, quantity and quality, maintenance, re-charge,
2015]
augmentation and improvement), human rights and equity concerns (for the
present and the future generations).Meeting basic human and ecological needs
of generations, in the temporal sense, remained the top most strategic priority.
To ensure that focus on certain specific aspects of water management was not
lost, the Bill dealt at great length the issues concerning Ground Water,
Drinking Water, Minor Irrigation River Basin, Dam Safety and Drought
Management.
Governance Structure, Scheme & Grievance Redressal:
Facilitation of cooperative interaction between water administrators and
water users and ensuring Community Participation and accommodation of
native wisdom in resource management, formed the core of the administrative
scheme and arrangement. Water Management Committee forming the unit of
governance, the administrative architecture had an organic evolution to the
top, with strong bonds of relationship between the line agencies on the one
side and the community, local governments and the State Administration on
the other. Sufficient care was taken to ensure that the design and the detail of
the structure and functions of each of the entities, were such as to
complement, support and strengthen each others functioning by observance
of the non-negotiable principles and strategies of water governance,
prescribed earlier. Technical and expert support and guidance by the line
agencies and policy oversight, monitoring, auditing and regulation at the apex
level, formed the major feature of the management strategy. Space was
created for conduct of Social audit as well, to make water administration
transparent and open to public scrutiny. Creation of Water Resource
Information System for information storage, retrieval, dissemination and
application for evolving Water Plans, at every level, was contemplated
Grievance redressal mechanism, was built into each and every layer of
governance, with the State Administration, at the highest level of the unified
command structure, to act as the final appellate authority.
In ensuring no conflicts and overlaps exist among the different agencies
of State, that have a bearing on water governance, operating under other laws,
strengthening linkages, wherever possible, to complement the functioning of
VOL 1:2
each other; overarching and overriding and , at times, repealing them, to

smoothen, strengthen and streamline water governance, to make this law an
effective one, were attempted.
QUO VADIS? :
As this write-up is prepared, it is learnt that the State Cabinet has
approved the Draft Bill and has referred it to the Select Committee for
introduction in the State Assembly for approval, during the Monsoon Session.
The Commons Cell is now approached by the Government of Meghalaya, to
evolve a River Basin Management Law for the State. A huge challenge and
another opportunity to learn and hopefully, set another Precedent!
VOLUME 1
JUNE 2015
ISSUE 2
CAN RIGHTS BE LIMITED UNDER THE GARB OF

RELIGION?
AN ANALYSIS IN LIGHT OF THE SHABNAM HASHMI
CASE
Smiti Singrodia
Rights and family law reforms have progressively intertwined within

the contestations of identity politics and minority rights. While one category
of social activists insist on an all-encompassing Uniform Civil Code (UCC) to
be the panacea for the woes of all categories; on the contrary, the anti-UCC
lobby emphasize on the agenda of national integration and communal
harmony. The sharp dichotomy creates a predicament for the viability of a
Uniform Civil Code within a culturally diverse country. On one hand the
adversity cannot be neglected with the rhetoric of freedom of religion;
nevertheless the plurality of religion cannot be constricted within a straitjacket
of uniform rights to all beings of all communities. The Constitution of India
under Article 44, as matter of directive principle, mandates the State to
promulgate a Uniform Civil Code for the whole country. The nonenforceability of a directive principle does not impede the significance of an
all-inclusive UCC. After decades of remaining a dead letter in the Constitution
we are yet to see the fulfilment of this distant dream. However, the recent
adjudication in the case of Shabnam Hashmi v. Union of India & Ors.
regarding the rights of a Muslim woman to adopt a child resulted in the
Juvenile Justice Act of 1986 nullifying the personal laws under the Sharia,
thereby formulating the path towards a Uniform Civil Code. The study is an
attempt to confer about the question: Can rights be limited under the garb of
religion? An analysis in light of the Shabnam Hashmi case.
II Year, B.B.A. LL.B (Hons.), SKYMs, NMIMS School of Law, Mumbai.
VOL 1:2
INTRODUCTION
There is nothing personal about family law. It is time we reclaimed it as the
problem of everyone interested in equality
- Tarunabh Khaitan1
The English word adoption denotes the legal enactment and
evocation of a fictional parenthood by virtue of a filial relationship outside
biological affiliation. It aims to create a parent-child affinity with all the
rights, privileges, and responsibilities that attach to such relationship2 and a
consequent severance of all relations with the biological parents.3
Notwithstanding the aforementioned, this is not the only acceptable form of
adoption. The Islamic view on adoption, juxtaposed to practices and customs
in other religions, follows the practice of Kafala, which literally translates to
legal fostering or foster parenting.4 In other words, by virtue of Kafala
the relationship with the biological parents is not negated while subsequently
establishing a parent-child relation between the kafil (adoptive parents) and
makfoul (adopted child).5 Adoption scholar Jamila Bargach defined it as
primarily a gift of care and not a substitute for lineal descent.6
In India however, the practice of adoption, which is in conformation
with the western view is only provided to Hindus by virtue of the Hindu
Tarunabh Khaitan, Personal is Political, The Telegraph, July 11, 2005.

Available at:
http://www.telegraphindia.com/1050711/asp/opinion/story_4943282.asp
(last accessed on April 6, 2015).
2
Bryan A. Garner, Black's Law Dictionary, 55, 9th edition (2014).
3
Ashley Dawn Harvel, The Myth of the Unknown Child: Creating a New Face for Adoption in
America, A Thesis presented to the faculty of the Graduate School University of California, 11
(2006).
4
Imad-ad-Dean Ahmad, The Islamic View of Adoption and Caring for Homeless Children,
Published in Adoption Fact Book III (Washington: National Council for Adoption, 1999).
5
Jamila Bargach, Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco, 30
(2002); Shabnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1 at 10.
6
Id. at 27; Faisal Kutty, Islamic Law and Adoptions, Valparaiso University Law School Legal
Studies Research Paper Series (June 2014).
Available at:
http://ssrn.com/abstract=2457066
(last accessed on March 15, 2015).
2015]
RIGHTS UNDER THE GRAB OF RELEGION
10
Adoption and Maintenance Act, 1956. Thereby individuals of religions such as

Muslims, Parsis and Christians get only the privilege of becoming guardians
under the Guardians and Wards Act.7 The contention that arises then is does
this in any way limit rights of the adoptive parents and the adopted child.
Does the right to adopt come under the purview of Article 148 and thus
become a fundamental right for everyone who wants to adopt regardless of
religion, race, caste, sex or place of birth?9 Does the right to life10 of an
orphaned and/or destitute child comprise of the right to a family, name and
nationality?11 Can the right to adopt then be limited under the garb of
religion? Is adoption dealt with, in isolation, by personal laws only and
thereby do personal laws have the power to nullify the rights and liabilities
created under the Constitution of India that indicate otherwise? 12
The aforementioned were amongst the issues raised by Shabnam
Hashmi when she filed public interest litigation (PIL) by virtue of Article 32,
in furtherance of adopting a girl child who comes at par with a biological
child13 and have the threshold of Article 2114 extend and include a Right to
Adopt15. It was in 1996 when Ms. Shabnam Hashmi had taken Seher Hashmi
Raza under her custody and thereupon approached the court, to be legally
recognized as Ms. Razas parent. However, due to the lack of a codified
statute for non-Hindus to adopt, Ms. Hashmi had to take recourse to the
Guardians and Wards Act, 1890.

Article 14, Constitution of India, 1950 :
The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India..
9
Manuel Theodore v. Unknown, 2000 (2) BomCr 244.
10
Article 21, Constitution of India, 1950.
11
Laxmikant Pandey v. Union of India, 1984 AIR 469.
12
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84; re, Kahandas Narrandas, 1881 I.L.R.
5 Bom 154; The Collector of Madura V. Mootoo Ramalinga Sethupathi, (1868) 12 M.I.A. 397
under the Hindu system of law, clear proof of usage will outweigh the written text of the law.
13
Shabnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1 at 10.
14
Article 21, Constitution of India, 1950:
No person shall be deprived of his life or personal liberty except according to the procedure
established by law.
15
Supra note 13 at 12.
8
11
VOL 1:2
Guardians and Wards Act16 and thereby assume the position of a guardian
while Seher remains a descendent of her biological parents. However, after a
decade-long tenacious battle, the court finally ruled in her favor, thereby
allowing non-Hindu parents who want to adopt to resort to section 41 of the
Juvenile Justice (Care and Protection) Act.17 The ruling establishes once
again that personal laws cannot override the provisions of an enabling
statute.18 Notwithstanding, the opposing parties to Ms. Hashmi were the
members of the All India Muslim Personal Law Board (herein after AIMPLB)
who argued the decision to be an infringement of Article 2519 and professed
that
JJ
Act
itself
under
section
41
explicitly
recognizes
foster
care/sponsorship. Moreover, the United Nations Convention of the Rights of

the Child20, which India has ratified to21 under Article 20 (3)22 upholds the
system of Kafala and also emphasizes on the need to have the background of
the adopted child intact. However the court overlooked the argument by
stating that the Act does not mandate any compulsive action by any
prospective parent leaving such person with the liberty of accessing the
provisions of the Act, if he so desires. Such a person is always free to adopt or
choose not to do so and, instead, follow what he comprehends to be the
dictates of the personal law applicable to him. To us, the Act is a small step in
16
Supra note 7.
Juvenile Justice (Care and Protection) Act, 2000.
18
Supra note 13 at 11; in 2013, the Delhi High Court had rejected a bail plea of a Muslim man
who kidnapped and raped a 17 year old who he claims to be sharing mutual love with and
previous physical relationship. The arguments laid there under were that Muslim personal laws
provides for marriage between the 17 year old and the man.
19
Article 25, Constitution of India, 1950 :
Freedom of conscience and free profession, practice and propagation of religion.
20
United Nations Convention of the Rights of the Child, 1989.
21
A Handbook on International Human Rights Convention;
available at: http://nhrc.nic.in/documents/india_ratification_status.pdf
22
Article 20 (3), United Nations Convention of the Rights of the Child, 1989: Such care could
include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in
suitable institutions for the care of children. When considering solutions, due regard shall be paid
to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural
and linguistic background.
17
2015]
12
reaching the goal enshrined by Article 44 of the Constitution.23 Article 44

promulgates the State to develop and enact a Uniform Civil Code.
Nonetheless the remedy of elevating the right to that of a fundamental one
will have to await a dissipation of the conflicting thought processes in this
sphere of practices and belief prevailing in the country24.
While this perspective is susceptive to the States innumerable religious
dogmas, it implies a precondition that the Uniform Civil Code (herein after
UCC) is in fact a warranted end point to be achieved in the distant future.
Although virtuous, the only goal such an interim measure achieves is that the
minorities, in this case the Muslims, view it as majoritarian excess and a
decree suppressing their religious beliefs, which is noticeable in the arguments
put forth by the AIMPLB. The impression is always created by the minority
community, that the majority community is exterminating the minority by
imposing its personal law on them.25 The result of which is incongruity
unaccompanied by the original intent of elevating legal rights of the specific
party. The only reason for such a negative approach to the noble idea is the
psychological barrier that people have instated. The matter in question has
become communalized to the point that people are not inclined towards a
rational perspective. The UCC has been described as three words that can
make our political class quail.26
The Constitution of India under Article 4427, as matter of directive
principle, mandates the State to promulgate a Uniform Civil Code for the
whole country. Article 25 (2) (b)28 is a manifestation that religious freedoms
must formulate a path towards other fundamental rights delineated in the
23

Id.
25
M.S Ratnaparkhi, Uniform Civil Code: An Ignored Constitutional Imperative, 5 (1997).
26
Editorial, Divorced From Reality, Hindustan Times (October 25, 2007).
Available at:
http://www.hindustantimes.com/edits/divorced-from-reality/article1-254177.aspx
(last accessed on February 26, 2015).
27
Article 44, Constitution of India, 1950:
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory
of India.
28
Supra note 20.
24
13
VOL 1:2
Constitution such as equality before the law. It was for the absolute fulfilment
of this equality that the Directive Principles were laid down. However during
the Constituent Assembly, Article 44 faced criticism from the Muslim
community arguing, that matters dictated by personal laws were matters of
religion and could be only regulated by the acquiescence of the respective
religious group. The article however was adopted but only as an expression
necessitating legislation in the domain of personal laws in the distant future.
Such legislation would not attempt to interfere with religion, but to redefine
religious if necessary for the sake of the unity of the State.29
The desideratum for a UCC cannot be realized against the emerging
tension between the personal laws of the respective communities and the
vantage point of the adversaries of UCC that within an egalitarian society,
communities must have the right to conform to their personal laws and beliefs.
While the proposition that the Constitution should sanction scope for
existence of personal laws is unexceptionable, it cannot, by the threshold of
that very logic, be allowed to vitiate into a rubber stamp for the various
communities to limit rights which they are entitled to as citizens of India.
Strictly speaking, the democratic principle, that citizens should have the
freedom for practicing their own personal laws has to be facilitated by the
internal restriction30 that the legal protection to personal laws would not be
utilized to tyrannize the minority groups within the society. Owing to the fact
that such a consensus for internal restriction exists, can the very idea of
independent space for citizens to follow their personal laws be facilitated
without any jeopardy. Thereby, any member of any community who feels
aggrieved or victimized could take recourse to the court over infringement of
any legal and fundamental right.
The framers of India's Constitution were convinced that if there was
freedom for everyone to profess and practice the religion of his or her
own choice and there was a spirit of tolerance towards those who
29
Robert D. Baird, Religion and Law in India: Adjusting to the Sacred as Secular, 21 (2005).
Imtiaz Ahmed, Personal Laws: Promoting Reforms from Within, 30(45) Economic and
Political Weekly (1995).
30
2015]
14
profess and practice other religions, and religion was confined to

affairs strictly religious and was not allowed to intrude into the social,
economic and political life of the people which should be guided solely
by secular considerations and every individual was regarded as an
entity entitled to the same basic rights irrespective of his or her
religion, there would be no conflict between religion and
secularism.31
Politics however has prevented the Indian parliament from working
towards such an idealistic State where citizens would not enable religious
beliefs to impede with the social, economical or political life of the State.
The solution thereby is straightforward. The reform has to come from
within the various religious communities rather than the Indian Parliament
initiating any action. Which poses a problem again, because the Muslims
have, since the beginning, been resolute to keep themselves apart from
everybody, especially Hindus.32 In the case of adoption rights, there hasn't
been a concerted push to open doors for Muslim orphans because the
expectation would be that those efforts would fall flat33. Most Muslims will
say that it is haram (prohibited) to adopt but then will automatically say that
Islam imposes an obligation to care for orphans and abandoned children.34
However, it is through various cases like Manuel Theodore35, Laxmikant
Pandey36 and the current case of Shabnam Hashmi as well, that the domain of
adoption laws has been reformed towards formulating a Uniform Civil Code,
and if not that, the citizens are provided with secular alternatives. However, as
elaborated by Shadan Farasat, allowing Muslim couples to adopt under a
statutory law in spite of the existence of a contradictory personal law, but
31
P.N. Bhagwati, Religion and Secularism Under the Indian Constitution, 40-41 (2005).
Supra note 27 at 3.
33
Rachel Zoll, Muslim orphans caught between Islamic, Western Law, USA Today
(November 29, 2010). Available at:
http://usatoday30.usatoday.com/news/religion/2010-11-29-orphans29_ST_N.htm
(last accessed on May 16, 2015).
34
Supra note 6.
35
Supra note 9.
36
Supra note 11.
32
15
VOL 1:2
using the personal law as a premise for not declaring the right to adopt as a
fundamental one shows the inherent inconsistency in the judgment given in
case of Shabnam Hashmi.37 The judgment indirectly provides a higher
pedestal to personal laws and thereby dilutes the supremacy of the
Constitutional rights. The aforementioned argument explicitly describes the
dire need for a Uniform Civil Code, to avoid such lacunas and mend the
unravelled threads of the garb of religion in India. There is no doubt that the
UCC would go a long way to promote national integration without influencing
the religious pluralism of the nation, if and only if, the members of every
community objectively consider it. Until then, the judiciarys active role in
recognizing the fundamental right of a child, to a family, name and
nationality, emanating from Article 21, and realizing the best interest of the
parties involved and lastly the penultimate goal to achieve secularity by virtue
of a Uniform Civil Code, will get us by. Religious plurality is a concern, and
one must understand the process of enactment of a Uniform Civil Code is not
merely a single event but a result of a manifold of actions. In conclusion I
would like to quote, Religious plurality can be supported from the
egalitarian ground of an unstratified citizenship that is not hostile to
particularity, whereas exploitative particularisms can only close the avenues
for pluralisation.
Shadan Farasat, Supreme Court wrong to cite contrary personal law as basis for rejecting a
fundamental right to adopt.
Available at:
http://blog.mylaw.net/supreme-court-wrong-to-cite-contrary-personal-law-as-basis-for-rejectinga-fundamental-right-to-adopt/ (last accessed on May 16, 2015).
37
VOLUME 1
JUNE 2015
ISSUE 2
THE LAW, VIDEOCONFERENCING AND AN EVOLVING JUDICIAL

SYSTEM
Kartik Chawla &Trishi Jindal*
Technology has been an essential part of society for a long time. With
deeper incorporation of technology into society, it is only logical that law, too,
should evolve to accommodate for these changes. The evolution of the law
regarding technology can happen in two ways when the law evolves to
regulate technology, such as the evolution of the intellectual property laws;
and when it enables itself to utilise technology within its procedures.38 The
perfect example of the latter is the inclusion of videoconferencing as a
legitimate and legal means of providing witness testimonies and other forms
of evidence in Court, which is the focus of this paper.
The legislative measures in reference to the latter came through the
Information Technology Act, 2000, (herein after Act),which was meant to
finally acknowledge the mass digitalisation of data and activities, in keeping
with the changing nature of commercial transactions around the globe.39 This
Act, and the subsequent 2008 amendments to the same, also brought
amendments to the procedural laws enabling the courts to accept electronic
evidence40 as under section 3 of the Indian Evidence Act.41 While this
provided a good starting point, the Act has remained silent on the collection of
*
III Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad.

Vivek Wadhwa, Laws and Ethics Cant Keep Pace with Technology, MIT TECHNOLOGY
REVIEW (April 15, 2014).
39
Suneeti Rao, Information Technology Act: Consumers Perspectives, 36(37) ECON. & POL.
WEEKLY 3501 (2001).
40
Sec. 65B, Information Technology Act, 2000. Various electronic documents, including emails, SMSs and MMSs have been held to be evidence in the past few years. See M/s. P.R.
Transport Agency v. Union of India, AIR 2006 Allahabad 23; State of Delhi v. Mohd. Afzal
& Ors., 2003 VIIAD Delhi 1. Furthermore, the question regarding whether data stored on
electronic devices should be treated as an electronic document for the purposes of evidence
was answered in the affirmative in the case of Dharambir v. Central Bureau of
Investigation,148 (2008) DLT 289.
41
Sections 4 and 65B, Information Technology Act, 2000.
38
17
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evidence and witness examination through videoconferencing. It is to fill this

lacuna that the Judiciary stepped in.
TRACING THE LEGAL EVOLUTION

The Judiciary has been leading the movement to allow greater use of
technological means from as far back as 1972, when it allowed the use of
tape-recorded evidence as a valid form of evidence, provided certain
conditions with respect to establishing the authenticity of the record were met,
thereby marking a shift from the dominance of physical documents and
testimonies to include purely digital records of evidence.42 Similarly, the
Judiciary has diligently worked towards clarifying matters addressing the
question of the legality of presenting evidence via videoconferencing or webconferencing in all the fields of law civil, criminal, arbitral as also civil
administration given the statutory silence on the same.
Arbitration
The legal groundwork for the use of electronic means of communication
in the sphere of arbitration proceedings was laid down in the case of Grid
Corporation of Orissa Ltd. vs. AES Corporation.43 The Supreme Court here
stated that it is not necessary that the two persons required to act in
consultation with each other must necessarily sit together at one place when
the parties can be consulted through electronic media and remote
conferencing.44 The legal concept with regards to videoconferencing itself
was then concretised in the case of Alcatel India Ltd. v. Koshika Telecom Ltd.
&Ors., where the Court upheld the Tribunals decision which had insisted on
the use of videoconferencing to examine witnesses.45
42
RN Malkani v. State of Maharashtra, AIR 1973 SC 157.

(2003) 1 MLJ 51 SC.
44
Id.
45
2004 (3) ARBLR 107 (Delhi). The Law Commission of India, in its report on amendments
to the Arbitration and Conciliation Act, has also recommended a conscious use of
technology, like teleconferencing, video-conferencing etc., in order to facilitate smoother and
more efficient arbitral proceedings. See 246th Report of the Law Commissionn, Amendments
to the Arbitration and Conciliation Act, 1996 (August, 2014).
43
2015]
THE LAW, VIDEOCONFERENCING
18
Civil Procedure
Parallel to the above developments, the Karnataka High Court, for the
first time allowed videoconferencing in the courts in Twentieth Century Fox
Film Corporation &Anr. v. NRI Film Production Associates (P) Ltd., where it
was deemed a mechanical process under O. XVIII R. 3(4)(3) of the Code of
Civil Procedure (Code). The Court here also interpreted in attendance
under Order XVIII R. 3(4) (2) of the Code to include not only physical
presence but presence made possible through an audio-video link as well.46
This was enabled by the Courts rejection of strict interpretations of the Code
- the Court emphasised the need to move forward along with relevant
technological development, and to use technology as a tool for dispensing
justice effectively wherever possible.47
The second provision under which the Courts have allowed
videoconferencing in civil procedure is the provision for assignment of
commissions under Order XXVI Rule 5 of the Code.48 This has been set out in
the case of Liverpool and London Steamship Protection and Indemnity
Association Ltd v. MV Sea Success I, where the Bombay High Court
followed a line of logic similar to the one discussed above, and allowed the
plea of the plaintiff to be allowed to depose via videoconferencing through the
issue of a commission under the latter.49
However, the move to adopt videoconferencing technology as an
alternative to physical presence has sometimes been disputed, citing problems
of infrastructure and lack of prescribed procedure. The courts have, in
response, formulated appropriate guidelines to enable its use in courts, which
specify: (i)the requirement of affidavits confirming the identity of parties to
the conference, (ii)the manner of taking the oath, (iii)the time period when the
examination may be conducted, (iv)the nature of the evidence thus collected,
(v)the required documents that need to be made available to the examinee and
46
AIR 2003 Kant 148.

Id.
48
Liverpool and London Steamship Protection and Indemnity Association Ltd v. MV Sea
Success I &Anr, 2005 (6) BomCR 278.
49
Id.
47
19
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a witness to the conference, (vi) the manner in which it is to be recorded and

deposited in the courts, and also(vii) which party is to bear the cost and effort
of arranging the necessary equipment.50A later case before the Andhra
Pradesh High Court has also allowed for deposition by the petitioner himself
through video-conferencing in a divorce proceeding.51
Criminal Courts
On the criminal side, the development of the law was led by the
Supreme Courts landmark judgment of State of Maharashtra v. Dr.Praful B.
Desai52 where the use of videoconferencing was requested as the deponent
was unable to travel to India. The Court here considered the ongoing nature
of the Code of Criminal Procedure (CrPC) and held that the requirement of
personal presence under section 273 of the Act was in need of an updated
construction, to imply not only physical presence, but presence through
video-conferencingas well.53 The court also analysed the legal nature of
video-conferencing and denying that it created a virtual reality, stated
instead that it is representative of actual reality, terming it an advancement in
science and technology which permits one to see, hear and talk with someone
far away, with the same facility and ease as if he is present before you i.e. in
your presence.54
Thereafter, in 2004, the cases of Sakshi v. Union of India,55and Sheeba
Abidi v. State &Anr.,56expanded the utility of videoconferencing, extending it
beyond simple logistical inconveniences to cases where the ends of justice
could be served better by making special allowances for persons suffering
psychological trauma. Sakshi v. Union of India is particularly important in this
regard. The Supreme Court here placed heavy reliance on the Canadian case
of Her Majesty the Queen, Appellant v. D.O.L., Respondent and the Attorney
50
Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal 11; Liverpool and London Steamship
Protection and Indemnity Association Ltd v. MV Sea Success I &Anr., 2005 (6) BomCR
278; State of Maharashtra v. Dr.Praful B. Desai, AIR 2003 SC 2053.
51
Bodala Murali Krishna v.Smt. Badola Prathima, (2007) (1) ALT 237.
52
AIR 2003 SC 2053.
53
Id.
54
Id.
55
AIR 2004 SC 3566.
56
113 (2004) DLT 125.
2015]
20
General of Canada Etc.57with respect to the use of the video-taped interview

of a childs statement, which had identified the following few merits in the use
of videotaped testimony: (i) it removes the need for the victims to repeat their
story, thereby eliminating any system-induced trauma that often revictimised young complainants; and (ii)it gives the child the opportunity to
answer delicate questions in a more controlled, less stressful and hostile
environment.
The Indian Supreme Court used this discussion of its Canadian
counterpart to call for similar use of videotaped testimonies in India. It
clarified that such videotaping would occur in the presence of a child-support
person, through a closed circuit television, or from behind a screen, to obtain a
full and candid account of the acts complained of.58
The Supreme Court also made note of the innate power imbalance
which exists between the abuser and the complainant, thereby recognising the
need for such a mechanism in the face of the failure of a criminal justice
system, which holds stereotypical and biased views about the victimisation of
women.59 The court, here, has considered a more nuanced understanding of
procedural laws, where they are seen not only as rules subsidiary to the
substantive law, but as forming an active constituent of the very activity of
doing justice, and extends the role of technology beyond simple questions of
efficiency to that of achieving better justice.60
The next big development in the context of videoconferencing came in
the case of Dr.KunalSaha v. Dr.Sukumar Mukherjee61, a case of medical
negligence, where the Court wished to examine experts from the US. The
57
[1995] 4 SCR 419.

Supra note 35.
59
Supra note 35. This is particularly true of the Indian litigation scenario, where women often
find themselves subjected to character examinations, not to mention the trauma they already
experience, coming face to face with the perpetrators of the particular atrocity.
See HUMAN RIGHTS WATCH, Dignity on Trial: Indias Need for Sound Standards for
Conducting and Interpreting Forensic Examinations of Rape Survivors, 32 (2010).
Available at: http://www.hrw.org/sites/default/files/reports/india0910webwcover.pdf
(last visited on January 23, 2015).
60
Orna Rabinovich-Einy, Beyond Efficiency: The Transformation of Courts through
Technology, 12(1) UCLA J. OF LAW. & TECH (2008).
61
IV (2011) CPJ 414 (NC).
58
21
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Courts order in this case is relevant for two points: (i) it made
videoconferencing mandatory for the examination of foreign experts 62; and
(ii) while discussing the distinction between internet-conferencing and videoconferencing, the court allowed examination through the former, it being less
expensive and the difference in quality having become unnoticeable owing to
technological advancements in place of the latter. This case truly indicates
the evolving nature of the presentation of evidence through Information and
Communication Technologies (ICTs) in judicial proceedings and rather
indicates an increasing level of comfort with using ICTs in the procedures of
the Court.
Civil Administration
The development of videoconferencing law has been quite interesting as
it has gradually come to be accepted not only in the courts of law but in the
administrative realm as well.63 The Jharkhand High Court, while considering
the question of physical presence required for the registration of a Hindu
marriage under the state legislation, upheld the impugned legislations
constitutional validity and held that video-conferencing served as a valid
method of obtaining the presence of the petitioners, rules of procedure being
the handmaiden of justice.64 It emphasised that the Registrar may obtain the
presence of the parties through web-conferencing, using the laptops and
computers provided to such officers, and messenger services provided by
Skype, Google or Yahoo! to carry out such a task.65
INFRASTRUCTURAL DEVELOPMENTS
Infrastructure had been the foremost problem when it comes to allowing
videoconferencing within the courtroom. The Courts have dealt with this
particular contention by formulating clear guidelines that ensure an
appropriate environment and resources for carrying out depositions and
examinations through video-conferencing, as have already been stated in the
62
Malay Kumar Ganguly v. Dr.Sukumar Mukherjee and Ors., AIR 2010 SC 1162.
Upasana Bali &Anr.v. State of Jharkhand &Ors., AIR 2013 Jhar 34.
64
Id.
65
Id.
63
2015]
22
above section. At the same time, they have also allowed web-conferencing
through inexpensive means like Skype, Yahoo! and Google, rather than
videoconferencing.66 Furthermore, the Courts have held that the Registrar
should make use of the Computer or Laptop facility with Internet
Connection that such officers have been provided with, in the absence of
which the parties requesting such facility can be asked to make requisite
provisions for the same.67
While web-conferencing is fairly easy to carry out, video-conferencing
requires a rather elaborate set-up including projectors, screens etc. It therefore
requires a more dedicated effort on part of the person attempting to utilise this
procedure, which really corresponds to an extensive level of expenditure by
the State if it takes up the burden of providing the requisite facilities. The
government has made some strides in this direction, though they are few and
territorially restricted. As part of the slow transition to a more wired justice
system, special video-conferencing rooms have been set up on the court for
use in court proceedings. The first of these was set up at the Delhi High Court,
and was later incorporated into the Child Witness Care Room (CWCR) set up
at the District Courts at Saket68 and Karkardooma69, which are also equipped
with videoconferencing facilities. These have been put to use in recent cases
involving minor victims of rape and other forms of sexual assaultthe
Karkardooma court has reportedly had 750 child witnesses examined in these
rooms as of September, 2014.70 Furthermore, the Civil Courts at Ranchi
recently launched an E-Court VideoConferencing Trial Court Room, which
allows three jails at a time to connect and communicate with the court. 71 This
facility was most notably used to deliver the fodder scam case judgment to 34
66
IV (2011) CPJ 414 (NC).

Id.
68
Mandeep, One More Child Witness Court Room Inauguration in New Delhi, INDIA
TODAY (September 17, 2014).
69
PTI, Indias First Child Witness Court Room Inaugurated, THE TIMES OF INDIA
(September 16, 2012).
70
Sana Shakil, Second Child Courtroom Opens, THE TIMES OF INDIA (September 17,
2014).
71
Video Conferencing Trial Court, Civil Courts, Ranchi website, available at
http://ecourts.gov.in/Video%20Conferencing# (last visited on April 10, 2015).
67
23
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convicts, including Lalu Prasad Yadav at the Birsa Munda Central Jail by the
Special Judge, CBI.72 Other district courts with video-conferencing facilities
include Bagalkot, Kalaburagi, Chikkamagaluru and Ballary, Raichur and
Hassan District Courts in Karnataka; and the video-conferencing set-up in
Thiruvananthapuram linking the Central Prison, District Jail and Sub-jail at
Attingal, and the court complexes at Thiruvananthapuram, Neyyattinkara,
Attingal and Nedumangad.73
Recently, the infamous Nirbhaya trial involving the brutal gang rape of a
medical student in Delhi, too relied on videoconferencing for the deposition of
doctors from Singapore, who had treated her after the incident.74
CONCLUSION
Thus, the use of videoconferencing has seen a number of legal and
practical developments, with its application expanding over all fields of law,
including even civil administration. Videoconferencing methods have been
considered to be highly effective for three major reasons: (i) they are efficient,
(ii)they cut down on logistical difficulties, especially in high profile cases, and
(iii) they allow for a more sensitive court environment in cases that require
special care for the victims and/or witnesses who have to testify in court. It
also serves as an alternative to invoking the procedures of the Hague
Convention on taking of Evidence Abroad in Civil or Commercial Matters,
1970 when transnational litigations are concerned, or even in the case of
obtaining evidence from abroad in domestic litigation.75 As a result, this
method has received hearty encouragement in the area of adjudication,
involving both private and state machinery.
72
Id.
IT Initiatives, District Courts Thiruvananthapuram,
Available at
http://trivandrumdistrictcourt.gov.in/index.php?option=com_content&task=view&id=53&Ite
mid=60 (last visited on April 10, 2015).
74
AP, Singapore Doctor Testifies in New Delhi Gang Rape Case, THE NATIONAL (February
25, 2013), available at
http://www.thenational.ae/news/world/south-asia/singapore-doctor-testifies-in-new-delhigang-rape-case (last visited April 6, 2015).
75
See Martin Davies, Bypassing the Hague Evidence Convention: Private International Law
Implications of the Use of Video and Audio Conferencing Technology in Transnational
Litigation, 55(2) AM. J. OF COMPARATIVE LAW 207 (2007).
73
2015]
24
The courts, too, have become more comfortable with such use of technology,
even insisting on the use of video-conferencing for examination of witnesses
abroad,76 and demonstrating a wholesome understanding of the technology by
being able to differentiate between web-conferencing and video-conferencing,
while also allowing the use of the former. These developments are highly
encouraging as they show that the Indian legal system is entirely capable of
merging technological advancements into itself wherever it is necessary, or
even helpful, to meet the ends of justice, and consequently render an immense
benefit to the society as a whole.
Dr.KunalSaha v. Dr Sukumar Mukherjee, IV (2011) CPJ 414 (NC) if any foreign

experts are to be examined it shall be done only through video conferencing and at the cost of
respondents.
76
VOLUME 1
JUNE 2015
ISSUE 2
AN INTERFACE BETWEEN CONSUMERS RIGHT TO

ACCESS TO HEALTHCARE AND THE COMPETITION
REGIME OF INDIA
Vandana Kumari
Right to access is an integral constituent of consumer welfare. This

paper aims to highlight the anti -competitive practices in the healthcare sector
in the form of tied selling agreements for diagnostic services through medical
referrals. It deals with the anti-competitive practices prevalent at the local
level in the healthcare sector more precisely dealing with the abuse of
dominant positions by medical professionals who in light of informational
asymmetry between the doctor and the patients, exploit patients by prescribing
expensive medicines and diagnosis. The patient is not in a position to evaluate
or choose the quality of the products they consume. The redress mechanism of
the competition regime is expensive and out of the reach of the common
people to challenge the anti-competitive practices at the local level. Such
practices however, are blatant violations of the consumers right to access and
choice to medical facilities. The Consumer Protection Act falls short to
resolve this issue. The paper discusses the role of the competition policy to
regulate anti-competition at the local level. It stresses on the need for a
consumer ombudsman at the local level to ensure fair competition in the
health infrastructure and deal with anti-competitive vertical agreements. The
paper brings to the attention the implications of such a local regulatory and
redressal authority at the decentralised level on consumer welfare and
increased accessibility to medical services. It also seeks to analyse the
feasibility of the rule of the reason test as provided in the Competition Act
for ensuring competition in local health infrastructure.
III Year, B.A. LL.B. (Hons.), Gujrat National Law University, Gandhinagar.
2015]
CONSUMERS RIGHT TO ACCESS HEALTHCARE
26
RIGHT TO ACCESS OF HEALTHCARE

The aim of a sound competitive regime implies the consumer shall be
provided with adequate opportunities to make a free choice and avail the
goods and services at best possible economic price. The consumer should not
be made to bear the additional costs of healthcare facilities. A consumer
should be in a position to make a free informed choice about the health
services he would be paying for. The interface between a consumers right to
access and competition laws proposes to keep a check on anti competitive
practices widely prevalent at the localised level in the health delivery market
with the consumers as the central player.
In an ordinary circumstance, the consumer lacking speciality skills
might approach any doctor for diagnosis. However the doctor would be
expected to refer the patient to the right doctor without fail even if he has to
forsake his economic opportunity to earn profits. The competition policy has
a role to play if crucial time elapses before the patient is referred to the
appropriate doctor and the consumer has to bear additional costs. The policy
makers need to include in its advocacy programme elements to ensure the
consumer is able to access speciality consultation without loss of time and the
mechanism to govern the stakeholders in the health delivery mechanism, a
few to mention like hospitals, doctors, diagnostic centres etc. Unlike other
markets, the level of dependency of consumers on the service providers is
very high in the health sector due to its extremely specialised nature. The
doctors have a relatively broader responsibility to inform the patient about the
choice of a particular prognosis or treatment and provide proper records which
are easily comprehensible by any intelligible patient. Proper records should be
maintained to equip the consumer in making an informed choice.
The access to medicines by poor in economies like those of India have
come under severe threat due to drastic changes in the drug patent regime and
rising demands for a pro pharmaceutical patent protection approach. The
crucial aspects of right to access to medicines are the prices of the medicines
and the ability of a common man to pay for those medicines. The above two
27
VOL 1:2
criteria are adversely affected by market distortions and anti competitive

practices adopted by the pharmaceutical companies and other stakeholders
responsible for the medicine and healthcare delivery to the general public.
One of the prominent factors affecting accessibility to medicines is market
distortions in the form lack of freedom of choice by the consumers. Most of
the consumers are guided by the advice of the doctors in their preference of
medicines and healthcare facilities providing broad scope for anti competitive
practices to flourish. This makes this industry susceptible to market failures on
account non-involvement of the consumers in the decision making process.
The rights of a consumer in healthcare sector need special emphasis
primarily because this market is completely governed by external parties
having no inherent interest. A basic tenet of consumer law is that a person
paying for a service should have the freedom and opportunity to choose from
amongst the alternatives. The focus of anti competition legislation in
healthcare sector should shift from legal regulation to ethical regulation. The
chances of a clinician violating the ethical boundaries are higher than a
pharmaceutical violating the legal framework. The adverse impact of anticompetitive practices on accessibility to healthcare facilities can be best
understood by a demonstration. The cost of a diagnosis is 100 rupees but a
diagnostic centre would charge somewhere around 300-500 for administering
the kit. There is a huge gap between the actual cost and the arbitrary cost
charged by the diagnostic clinics. The tradition of cuts and commission in the
healthcare delivery mechanism puts additional burden upon the consumers
especially in a country like India where a major part of the medical
expenditure is uninsured.
The Consumer Protection Act comes into the picture exactly where the
competition law fails. The fundamental characteristic of COPRA is to provide
speedy and inexpensive remedy to the aggrieved consumers instead of the
time consuming and expensive process under the competition law. The IMC in
the case of Cosmopolitan Hospitals and another vs. Vasantha P Nair77
77
1992 CPJ (NCDRC) 302.
2015]
28
objected over the extension of the COPRA to medical services. The National
Commission however rejected the contention of the IMC and held that since
these professional regulatory bodies did not provide for the rights of the
patients, the consumer courts have full jurisdiction to decide in this regard.
According to a survey, the COPRA is highly effective in dealing with the most
common distortion in the health sector i.e. information asymmetry.78 The Act
entitles the patients with the right to question the treatment procedure adopted
by the doctors in the consumer forums if the doctors fail to adhere to the
universal medical standards.
DOCTORS: A HURDLE TO A COMPETITIVE HEALTHCARE

REGIME IN INDIA
The doctor in making his rational choice of prescribing a drug is
influenced by other stakeholders namely the pharmaceuticals who act through
middlemen, the diagnostic centres the costs of which the patient need to bear
to facilitate the doctor in deciding his line of treatment. Doctors are the
fulcrum around which the entire system of health delivery rotates. The doctors
have a greater responsibility to refrain from entering into anti-competitive
agreements for example tied selling, vertical agreements etc. Corporatisation
of the health care sector has further aggravated the probabilities of abuse of
competition. The hospitals and multi-speciality clinics backed by the
corporate may join hands with the doctors, diagnostic centres to commonly
impose the anti-competitive policies on the consumer who is made to bear the
extra cost burden at the cost of luxuries of these stakeholders. The daunting
task at hand for the government is to eliminate any scope for nexus between
the service providers to ensure the additional cost burden is not borne by the
consumers due such a nexus.
A common practice which has plagued the healthcare system is vertical
tied selling agreements. A tied selling agreement is one where a consumer
purchasing a product (tying product) has to mandatorily have to purchase
another product (tied product). Section 3(4) of the Competition Act, 2002
78
http://heapol.oxfordjournals.org/content/11/3/265.long (last accessed on 14th April, 2015).
29
VOL 1:2
prohibits parties from entering into any sort of vertical agreement. A vertical
agreement is an agreement between parties at different stages of supply,
production, distribution etc. Tying occurs when the tying product is designed
in such a way that it only works properly with the tied product (and not with
the alternatives offered by competitors). Tied selling forecloses competitors
from selling the same products and increases barriers to entry. This may result
in anti competitive practices in tying or tied product or both markets.
This paper specifically focuses on the anti competitive practice of
vertical tied selling agreements between doctors and the pharmaceutical
companies or diagnostic centres, which jeopardise a patients right to best
possible medical services at the optimal prices. There are multiple legal
frameworks to deal with the anti competitive issues, a few to name like the
competition laws and consumer laws. The doctors become the primary targets
of the big multinationals because of two reasons. Firstly, the doctors play a
crucial role in determining the sales of their drugs. The customers are guided
by the instructions of their doctors and pharmacists thereby implying their
significant dominance on consumer behaviour. Secondly, spreading awareness
or capacity building amongst the customers is an uphill task with only long
run results, since medicine is such a specialised field that even a small
variation in prescriptions might lead to fatal consequences on a persons
health.
There are certain specific forms of abuse that need special
consideration. A lot of jurisprudence has evolved on tied selling agreements in
European nations since the implementation of the EC treaty and
interpretation given by the Commission, CFI and the ECJ. Such practices are
in the nature of: Price related abuse of dominance and non-price related abuse
of dominance. In price related abuse of dominance exploitative pricing
practices, predatory pricing, rebates that have similar effects to single
branding agreements , margin squeezing, price discrimination are the major
forms of conduct that form part of abuse of dominance under Article 82. In
non-price related practices, tying and bundling, exclusive dealing, refusal to
supply are considered as the type of conduct demanding the application of
2015]
30
Article 82. The South African Competition Commission has showed that there
can be abuse of dominance through excessive pricing of patented
pharmaceutical products. It was under pressure from South African
Competition Commission that GSK, which was the worlds largest producer
of AIDS medicine, holding a 50 percent stake of the $5 billion market, was
forced to issue licenses on two major antiretroviral (ARV) drugs known as
AZT and Lamivudine- to four generic producers. In another similar case,
Boehringer-Ingelheim (BI) was forced to license nevarapine a major ARV to
prevent mother to child transmission of HIV infection- to three producers.
This led to forced but voluntary licenses being issued by drug companies to
other producers at a low royalty rate of 5%. This case has turned out to be a
trend-setter for developing country jurisdictions to follow a nuanced policy on
addressing unfair and exploitative pricing policies adopted by drug companies
in case of patented drugs.79
There is an absence of rational prescription of drugs in the healthcare
delivery system. The doctors are guided by pervasive interests while
prescribing expensive and irrational combinations of drugs. This problem is a
complicated one due to market failures resulting from its specialised nature
and weak position of a consumer in decision making. The doctors for reasons
which cannot be concretely classified do not make adequate efforts to look for
cheaper alternative for drugs prescription. This practice is in violation of the
fundamental competition policy of providing best possible services at the
lowest possible prices. The doctors are influenced by the pharmaceutical
companies and also receive commissions for referrals from diagnostic centres
which impinge a consumers freedom of choice with regard to healthcare
facilities. There cannot be any possibility of free and fair competition in such
a scenario.
Another important stakeholder in the health delivery mechanism which
has significant adverse impact on consumers right to access to medical
facilities is hospitals. The hospitals are in the practice of entering into
79
http://www.cci.gov.in/images/media/completed/PharmInd230611.pdf (last accessed on 11th

April , 2015).
31
VOL 1:2
agreements with the drug manufactures to supply drugs at a higher price than
the market prices thus engaging in anti competitive practices by forcing the
consumer to pay more than what he ought to. Several surveys have revealed
that consumers visiting private doctors or private hospitals witnessed tied
selling of medicine as well as diagnostic tests. Doctors would instruct that
their patients to buy the prescribed medicine from a particular shop or to get a
test done from a particular laboratory. Though there is a fair possibility that
the doctor would advise their patients to take the test at a particular diagnostic
centre due to greater reliability of its services however profit motive cannot be
ruled out as a motive.80 Often the doctors will suggest more tests than
necessary which may again be because of some arrangement for profit
between the doctor and the diagnostic centre. This also violates the basic tenet
of competition as it fails to provide the best possible service at the lowest
possible price and hence is anti-competitive in nature.81
The most widespread unethical practices engaged in by doctors are
prescriptions which are motivated by the kickbacks received from
pharmaceutical companies. Even if not influenced by incentives, doctors do
not bother to find whether an alternative less expensive drug is available so
that accessibility of those medicines could trickle down to the lowest classes.
The ethical concerns of pharmaceutical marketing is the abuse of dominance
by the mighty pharmaceuticals in distorting the information symmetry in the
healthcare sector further aggravated by the disconnection between the
consumer and his choice of medical approach to use. The possibility of
exploitation of the rights of a consumer would be minimised when the
consumer is capable of comparing and choosing amongst alternative
healthcare services. The fulcrum of this debate rests of the doctors and the
extent to which the incentives would accrue in prescribing a particular drug or
a diagnostic facility. The anti-competitive efforts of the giant pharmaceuticals
would be minimised in a scenario where a doctors acts in the best interests of
80
http://cci.gov.in/images/media/ResearchReports/VasudhaWattalHealthcareSector.pdf (last
accessed on 12th April, 2015).
81
http://cci.gov.in/images/media/ResearchReports/VasudhaWattalHealthcareSector.pdf (last
accessed on 12th April, 2015).
2015]
32
its patients. Many studies on doctor-pharmaceutical nexus have revealed the

dominant role played by the drug makers in influencing the boosting the sales
of a particular prescription drug with medical representatives acting in the
loop. The pharmaceutical companies continue to lure the doctors to prescribe
their drugs in return for foreign visits, conferences and continuing medical
education. Another form of nexus commonly witnessed in the healthcare
market is between the doctors and the diagnostic centres irrespective of the
fact that such practices amount to violation of MCI rules. This practice is
carried to the public hospitals as well where the consumers are denied free
medicines on account non availability and forced to purchase medicines from
the private drug shops.
The effect of anti competitive policies in the health delivery market may
not have drastic impact on the upper class however the middle and the lowers
classes cripple under the rocketing costs of medical facilities. The impact of
differential pricing has minimal effect on them but the poor are left with few
or no alternatives within their limited resources. This also adversely affects a
consumers fair chances of accessing healthcare facilities.
The inherent asymmetry of information in this sector makes it the need
of the hour for the establishment an ombudsman authority at the grass root
level to scrutinise the prescription pattern of the doctors and the other health
delivery stakeholders. The ombudsman would be responsible for safeguarding
the interest of the consumers and work in consonance with the competition
regime to ensure an efficient competitive healthcare market environment in
India. The current requirement is to establish a decentralised regulatory
mechanism to frame standards for medicine and services rendered by the
diagnostic clinics. A consumer ombudsman in the healthcare sector at state
level will also help in dealing with local monopolies and restrictive practices
encountered by consumers in their day to day lives. The ombudsman would
play a crucial role in reducing the burden of the consumer forums eventually
promoting rule of law by way of speedy disposal of cases.
A regulatory body will function to audit the medical records of the
patient for any lapsed or excesses. It may scrutinize the pricing of medicines
33
VOL 1:2
and prescription of diagnostic prognosis to explore whether alternate

formulations and tests could have been recommended to reduce costs. The
doctors usually are motivated by monetary benefits promised by the giant
pharmaceuticals or commissions in tied selling agreements with the other
service providers. Sometimes the doctors fail to exercise reasonable care to
check whether an alternate can be prescribed for same or almost same effects
but at a substantially reduced price. There is no dearth of regulatory bodies
governing the healthcare sector however they have failed miserably in their
endeavour to protect consumers rights. The anti-competitive practices have
plagued the health care accessibility channels at the ground level where the
consumers are ignorant about their right to have a choice of medical facilities
without bearing additional unaccounted costs.
NEED FOR A LOCAL CONSUMER REGULATORY BODY

Information occupies a place of special significance in the development
of the healthcare competition law. The legislature should focus on capacity
building amongst the masses while making legislations for regulating the
health delivery market. The legislations made so far for the regulation of this
sector have been monopolistically centred on the drug manufacturers. The
current scenario demands a change in this approach of the law makers. There
should be stricter control on other groups of important players namely the
doctors, diagnostic centres and the hospitals who have played a crucial role
for anti-competition to flourish in the health market. Although there exists
regulatory mechanism overseeing the conduct of the doctors but has remained
largely ineffective and there is a need for localised regulatory framework in
every state which can scrutinise the activities of the medical practitioner at the
very ground level to ensure democratisation of the health delivery mechanism.
Besides the current regulatory framework needs to be assimilated or at the
least co-ordinated with consumer forums to achieve higher success rate. The
medical council of India exercises influence on the conduct of medical
professionals through its Code of Ethics. However it seems a myth that the
2015]
34
medical profession can be efficiently controlled through self and peer

regulation.
Another area which needs the immediate attention of the legislatures is
diagnostic testing where the level of regulation is almost non-existent. A sting
operation in 2014 in Delhi revealed the thriving racket of referrals and
commission between the doctors and the diagnostic centres82 which further
highlights the need for transparency and protection of the rights of the
consumers. The check exercised by the CCI under section 3(4) suffers from
structural flaws. In the Indian scenario, it is impractical to presume that a
patient is well equipped with sufficient resources to approach the CCI for
vertical tied selling between the doctors and the diagnostic centres or the
medical representatives of pharmaceuticals. The CCI structure exceptionally
centralised and such a structure would be efficient only when the information
flows upward to downwards. It is in practical sense is a one-way mechanism
under section 19(1) of the Competition Act, 2002. Competition regime in India
regulating the healthcare should be moulded on the model of consumer
sovereignty where the consumer like any other market is in position to insist
on the value for money and has information necessary for making its choices.
To protect the rights of the consumers under the COPRA, the Act
should clearly special medical service in its list of services against which a
complaint can be filed by a consumer. Besides the consumer forums should
also be empowered to look into the complaints of anti competitive practices of
the medical practitioners. Dealing with competition issues in the healthcare
sector might not have been the primary agenda of the law makers while
framing the Consumer Protection Act but any act of the stakeholders on the
frontline of the health delivery market under section 3(4) of the Competition
Act can be very well included under the COPRA since it robs a consumer of
its choice and value for the money he/she pays.
82
http://www.indiamedicaltimes.com/2014/07/22/govt-orders-inquiry-into-alleged-nexusbetween-doctors-and-diagnostic-centres/ (last accessed on 14th April, 2015).
VOLUME 1
JUNE 2015
ISSUE 2
TAXATION OF SOFTWARE IN INDIA: AN INSIGHT INTO

THE ISSUES
Swatilekha Chakraborty
Where on one hand the software industry in India is emerging to be one

of the most profitable business sources, on the other hand the taxation of such
software has become a debatable issue of late. The chief issue in the taxation
is the distinction required to be made by the taxing authorities as to the
character of income derived from software, i.e., whether it is income from the
license of a copyright itself or is income from a copyrighted article. This in
turn leads to the interrelated question of whether related receipts constitute
royalty income or trade or business income. The distinction is critical of
course since royalties are generally subject to flat rate tax and withholding
from the source country (or no source taxation under applicable treaty)
whereas business income can be taxed on a net basis in the jurisdiction in
which the foreign company maintains a permanent establishment. Computer
software is usually sold under a licensing agreement whereby the buyer is
granted limited right to use the program for business or personal purposes.
The copyright or patent remains owned by the seller/manufacturer of the
material. The buyer is precluded from transferring or altering the program. If
all rights with respect to the copyright are not transferred to the buyer, the
issue is whether the transaction is taxable as royalty income for the use of the
copyright or involves the purchase of copyrighted material taxable as business
income. Thus this paper aims to look into the critical aspects of taxation
provisions under the Income Tax Act, 1961 and Double Taxation Avoidance
Agreement (DTAA) the chief issues related to taxing software in Indian
scenario. It also tries to provide recommendation as to how these issues can be
dealt.
III Year, B.B.A. LL.B (Hons.), Symbiosis Law School, Pune.
2015]
TAXATION OF SOFTWARE IN INDIA
36
INTRODUCTION
The rapid advancement in computer technology and its transferability
across nations give rise to issues relating to taxability of payments made for
import of software. India is a world leader in software. Indian IT companies
are respected and revered all over the world. But this industry has managed to
survive and grow, despite several controversies and hurdles in the way. The
issues relating to taxation of software payments generally originate from the
characteristics of software and the nature of transactions. The software may be
shrink-wrapped software or customized software. Rights in software may be
transferred partially or in completely, for a specified territory or globally, for a
fixed period or perpetually. Taxability of payments for software depends on
the nature of the transaction and terms of the agreement. Several discussions
have taken place internationally and guidelines have been provided as to when
payment for software can be regarded as royalty.
SOFTWARE-DEFINITION
It is impertinent to understand the meaning and nature of software in
general and the relevant Acts. As per the New Oxford Dictionary for the
Business World83, software means programs used with a computer (together
with their documentation), including program listings, program libraries, and
user and programming manuals. In India, software has been defined under
the Income Tax Act, 1961 (ITA)84 and under the Copyright Act, 1957.85
Income tax Act, 1961 dealing with export of computer software define
computer software to mean
(a) any computer programme recorded on any disc, tape, perforated media or
other information storage device; or
(b) any customized electronic data or any product or service of similar nature
as may be notified by the Central Board of Direct Taxes, India.
83
Oxford Online Dictionaries, available at: http://www.oxforddictionaries.com/

(last accessed on October 10th, 2014).
84
Sections 10A, 10B and 80HHE, Income Tax Act, 1961.
85
Section 2(ffc), Indian Copyright Act, 1957.
37
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Indian Copyright Act 1957 defines Computer Programme as a set of

instructions expressed in words, codes, schemes or any other form, including
a machine readable medium, capable of causing a computer to perform a
particular task or achieve a particular result. Thus, software necessarily
connotes programme in relation to a computer.
LAWS PERTAINING TO TAXATION OF SOFTWARES IN INDIA

In India, softwares are generally taxed under two Acts under the
following sections.
Income Tax Act, 1961
Under Section 9(i) (vi) of the Income Tax Act, 1961, definition
Royalty is as follows:
to mean any consideration (including any lump sum
consideration but excluding any consideration which would be the
income of the recipient chargeable under the head Capital
Gainsfor :
(vi) the transfer of all or any rights (including the granting of a
license) in respect of any copyright, literary, artistic or scientific work
including films or video tapes for use in connection with television or
tapes for use in connection with radio broadcasting, not including
consideration
for
the
sale,
distribution
or
exhibition
of
cinematographic films;
Double Taxation Avaoidance Agreement
Income from royalty is taxable in India under the Act. However, when
designs are imported by an Indian company from a foreign company, it
becomes pertinent to ascertain the definition of royalty given in the double
taxation avoidance agreement (DTAA), if any, that India may have with that
foreign country. For example, in the India-UK DTAA, a royalty payment is a
payment of any kind for the use of, or the right to use:
(a) any patent, trademark, design or model, plan, secret formula or process;
(b) industrial, commercial or scientific equipment, or information concerning
industrial, commercial or scientific experience;
2015]
38
(c) any copyright of literary, artistic or scientific work, cinematographic films,

and films or tapes for radio or television broadcasting. (Article 13(3) of the
DTAA).
As can be seen from the foregoing, royalty has been defined differently
under the Act and the India-UK DTAA. It has been held that while
determining the liability of a non-resident company in India, if there is any
DTAA entered into under section 90 of the Act, the provisions of the DTAA
must prevail over the provisions of the Act.86
THE ISSUE IN RELATION TO TAXATION OF SOFTWARES IN

INDIA- COPYRIGHT V COPYRIGHTED ARTICLE
The chief issue while taxing software transactions in India has been the
debate over whether it involves the transfer of copyright vested in the
software, liable to be charged as royalty under the Act or simply a copyrighted
article amounting to sale of the software.
It may be seen in the Tata Consultancy Services' case87 where the
Supreme Court considered a software transaction and held that such a
transaction involves a transfer of an incorporeal right in the software wherein
copyright remains with the originator and what is sold is a copy of the
copyrighted software. Thus, when one buys a copy of such copyrighted
software, he only acquires ownership of that particular copy but not the
intellectual property in the copyright and therefore it would be a sale within
the meaning of Article 366(12) of the Constitution of India. Hence, the
payment is only for the sale of a copyrighted article and is not for the
transfer of all or any rights (including grant of license) in respect of a
copyright.88 The Court continued to observe that even intellectual property
once it is put to a media whether be in the form of books of canvas or
computer disks or cassettes, would become goods.
Furthermore, section 14 of the Copyright Act, 1957 defines
86
CIT v. Visakhapatnam Port Trust, (1983) 144 ITR 146.

TATA Consultancy Services v. State of Andhra Pradesh, 271 ITR 401.
88
Explanation 2(v), sec. 9(1) (vi), Copyright Act,1957.
87
39
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Copyright89 as the exclusive right subject to the provisions of this Act, to

do or authorize the doing of any of the following acts in respect of a work or
any substantial part thereof. It is clear from the above definition that a
computer programme mentioned in Clause (b) of the section has all the rights
mentioned in Clause (a) and in addition also the right to sell or give on
commercial rental or offer for sale or for commercial rental any copy of the
computer programme. What is to be noted is that the right mentioned in Subclause (ii) of Clause (b) of Section 14 is available only to the owner of the
computer programme. It follows that if the Licensee does not have any of the
rights mentioned in Clauses (a) and (b) of Section 14, it would mean that it
does not have any right in a copyright. In that case, the payment made by the
petitioner cannot be characterized as royalty either under the Income-tax Act
or DTAA.
A conjoint reading of the provisions of the Income Tax Act, 1961 and
the provisions of the Copyright Act, 1957 clearly shows that if the Licensee
cannot exploit the computer software commercially, which is the very essence
of a copyright, the transaction wont amount to transfer of the copyright
vested in the software and will not be chargeable as royalty payment. In other
words a holder of a copyright is permitted to exploit the copyright
commercially and if he is not permitted to do so then what he has acquired
cannot be considered as a copyright. In that case, it can only be said that he
has acquired a copyrighted article.
Copyright is defined in the Iyengar's Copyright Act 90 as following:
(h) Copyright is distinct from the material object, copyrighted: It is an
intangible incorporeal right in the nature of a privilege, quite independent of
any material substance, such as a manuscript. The copyright owner may
dispose of it on such terms as he may see fit. He has an individual right of
exclusive enjoyment. The transfer of the manuscript does not itself serve to
transfer the copyright therein. The transfer of the ownership of a physical
thing in which copyright exists gives to the purchaser the right to do with it
89
90
S.14, Copyright Act, 1957.

T.R. Srinivasan Iyengar's, The Copyright Act (3rd Edn., 1977).
2015]
40
(the physical thing) whatever he pleases, except the right to make copies and
issue them to the public.
The above observations of the author show that one cannot have the
copyright right without the copyrighted article but at the same time just
because one has the copyrighted article, it does not follow that one has also
the copyright in it.
The recent judgment of the Delhi High Court in the case of Infrasoft
Ltd91, which dealt with issue of taxability of consideration for grant of licenses
for the use of software is very important to draw inference on this point. The
High Court held that in the present case what was transferred was neither the
copyright in the software nor the use of the copyright in the software, but the
right to use the copyrighted material or article which was clearly distinct from
the rights in a copyright. Accordingly, the High Court held that the
consideration received for the transfer of licenses for the use of software does
not amount to royalty under the Act.
Reliance in this regard may also be placed on the Authority for Advance
Ruling decision in the case of Dassault Systems K.K. v. DIT92 wherein it has
been emphasized that the right to download and store a computer programme
for internal business purpose is use of the copyrighted product and payments
made in this regard cannot be considered as 'royalties' taxable under the
provisions of the Act.
Time and again the Honble ITAT has relied on these principles to
decide various cases, which included similar transactions like the present case.
The Hon'ble ITAT Bangalore Bench in the case of Sonata Information
Technologies Ltd.
93
has considered the issue of payment received on sale of
computer software without transfer of any copyright. Hon'ble ITAT had

examined the issue of royalty within the meaning of section 9(1)(vi). Hon'ble
ITAT had examined in detail the issue of royalty in respect of sale of shrinkwrap software. They also examined the copyright in respect of computer
91
DIT v. Infrasoft Ltd., (ITA No. 1034/2009).

Dassault Systems K.K. v. DIT , 322 ITR 125.
93
ACIT v. Sonata Information Technologies Ltd, ITA No. 1561 to 1580/Bang/2004 dated
31.01.2006.
92
41
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programme, being the right to sell or to give on commercial or rental basis any
copy of software programmes. The ITAT examined the genesis of additional
copyright given in respect of computer programme in Section.14(b) (ii) of the
Copyright Act, 1957. The Hon'ble ITAT referred to Berne convention, Rome
convention, and WIPO copyright treaty, TRIPS. It was held that the copyright
in the software is different from any right in the physical manifestation of the
software contained in a CD floppy or on a hard Disc in which the software is
downloaded.
They have also examined the conditions in the nonexclusive restricted
license of the software and found-that the supplier of software had only
transferred a copy of the software or copyrighted article but had not
transferred any of the copyright. Under these circumstances, consideration
received for the sale of Copyright article, namely, software was held not to be
royalty, and it was also held that copyright is different from the copyright
article. In this case the issue of software provided to the cellular operator for
setting up the cellular telephone network was covered. It was held that the
software, which is provided by the supplier for the use in the cellular network,
does not involve transfer of any part of copyright of the software but only
amounts to sale of a copyrighted article, namely, the copy of computer
programme. Copyright continues to remain with the supplier of the computer
programme.
Various Courts have time and again emphasized the principle that the
payments from sale of licensed software, being sale of a copyrighted article,
cannot be regarded as royalty. Hon'ble Special Bench ITAT Delhi had again
an occasion to consider the similar issue in the case of Motorola Inc.94 In this
case the Hon'ble ITAT held that the amount received by the taxpayer under
the license agreement for allowing the use of the software was not royalty
either under the Act or under the tax treaty. The Hon'ble Delhi Bench of
ITAT in the case of Lotus Asia Specific95 has also examined the same issue
and have held that in the case of a sale of shrink-wrap software being a
94
95
Motorola Inc.v. DCIT, (2005) 270 ITR (AT) 62, TTJ 01.
Lotus Asia Specific, ITA No. 564 to 566/Del/05 order dated 28.04.2006.
2015]
42
copyright article, consideration received does not amount to royalty as there-is

no transfer of any part of copyright in the, computed programme which
continues to remain with the software supplier. The Hon'ble ITAT, Bangalore
Bench in the case of Hewlett Packard India (P) Ltd.
96
has also considered a
similar case. Hon'ble ITAT held that the consideration received by the foreign
company for the sale of software Packages to the Indian company did not
amount to royalty within the meaning of Article-12 (3) of the Indo-US DTAA
or under the Act. It was held that the sale of copyrighted article is different
from the transfer of the copyright in the computer software.
It is therefore very apparent from several decisions of Hon'ble ITAT
that in the case of sale of copyrighted article, namely, a copy of computer
programme, payment received is not royalty if there is no transfer of
copyright partly or wholly. But at the same time, the same courts and tribunals
have taken a completely opposite stance in very similar facts of the case and
thus created a huge debate on this point. Time and again the underlying
principles of these Courts behind these judgements have been that a
copyrighted article is nothing but an article, which incorporates the copyright
of the owner, the assignee, the exclusive licensee or the licensee. So, when a
copyrighted article is permitted or licensed to be used for a fee, the permission
involves not only the physical or electronic manifestation of a programme, but
also the use of or the right to use the copyright embedded therein.97
The very recent ruling in the Mumbai Bench of the Income-tax
Appellate Tribunal (the Tribunal) in the case of DDIT v. Reliance Infocom
Ltd.98 is also impertinent to note here, which held that payment made for
shrink wrapped or off the shelf software is taxable as royalty under the
Income-tax Act, 1961 (the Act).The Tribunal held that license granted for
making use of the copyright in respect of the said shrink wrapped software
amounts to transfer of right to use the copyright. Further, the non-resident
96
Hewlett Packard India (P) Ltd. v. CIT, (2006) 5 SOT 660 (Bang).
Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Vol II (9th edn, 2014).
98
DDIT v. Reliance Infocom Ltd., ITA No. 837/M/07...........5075/M/08; DDIT v. Reliance
Communications Infrastructure Ltd., ITA No. 5468/M/08; DDIT v. Reliance Infostream
Private Limited, ITA No.730/Mum/09; DDIT v. Reliance Telecom Ltd., ITA No 5093/M/08;
ADIT v. Lucent Technologies, GRLLLC ITA No. 7001/M/10.
97
43
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supplier has not been supplying software as a part of equipment purchased but
as stand-alone software under an End User License Agreement (EULA).
To further substantiate the point, it is pertinent to review a few
judgments delivered on similar grounds in favour of revenue. The Karnataka
High court in the case of CIT v. Synopsis International Old Ltd.99 held that in
terms of the tax treaty the consideration paid for the use or right to use the
confidential information in the form of computer programme software itself
constitutes royalty and attracts tax. It is not necessary that there should be a
transfer of exclusive right in the copyright. It was held that payment for
supply of software and granting of end user software license amounts to
'royalty'.
It was held in the case of CIT v. Samsung Electronics Ltd.100 that a right
to make a copy of the software and use it for internal business by making copy
of the same and storing it on the hard disk amounts to use of the copyright
under Section 14(1) of the Copyrights Act because in the absence of such a
license, there would have been an infringement of the copyright. In the case of
Samsung Electronics Ltd. it was further held that the transaction did not
involve a sale of a copyrighted article. The right that was transferred was the
transfer of copyright and payment made in that regard would constitute
royalty.
Further, the Karnataka High Court in the case of CIT v. Sunray
Computers (P) Ltd.101 held that supply of software was to be considered as
royalty. In the case of Citrix Systems Asia Pacific Pvt. Ltd.,102the AAR on
similar facts considered and held:When a software is created by a person who acquires a copyright
for it, he becomes the owner of that copyright. He can transfer or
license that right either by himself or through an agent. When he
sells or licenses the software for use, he also sells or licenses the
right to use the copyright embedded therein. If software is used
99
CIT v. Synopsis International Old Ltd. [2013] 212 Taxman 454 (Kar).
Samsung ElectronicsLtd., (2012) 345 ITR 494 (Kar).
101
CIT v. SunrayComputers (P) Ltd., (2012) 348 ITR 196 (Kar).
102
Citrix Systems Asia Pacific Pvt. Ltd., MANU/AR/0006/2012; 343 ITR 001.
100
2015]
44
without being lawfully acquired either by purchase or by license

that would amount to an infringement of the copyright because of
the copyright embedded in the software. The software is a literary
work and the copyright of the creator over the software is an
important and commercially valuable right. So, whenever software
is assigned or licensed for use, there is involved an assignment of
the right to use the embedded copyright in the software or a license
to use the embedded copyright, the intellectual property right in
the software. It is not possible to divorce the software from the
intellectual property right of the creator of the software embedded
therein. Even the right to sell or give on rental, would amount to a
copyright and would be a right to be dealt with as a copyright.
The definition of "royalty"103 in the Income-tax Act, 1961 is
consideration for the transfer of all or any rights (including the granting of a
license) in respect of a patent, innovation, model, design, secret formula or
process or trademark or similar property. Consideration for grant of the use
of any of the above is also royalty. It also takes in the consideration for the
transfer of all or any rights (including the granting of a license) in respect of
any copyright, literary, artistic or scientific work. License is not confined to an
exclusive license. When software, over which a copyright is acquired and thus
owned, is licensed for use to another or sold to another for his own use, the
licensee or the purchaser gets the right to use the software without being held
guilty of infringement of the copyright. When the use of software, without
anything more, would render the user liable for infringement of the copyright
embedded in the software, the sale or the licensing of the software involves
the grant of a right to use the copyright in the software and right to use the
intellectual property embedded in the software. Therefore, the licensing of a
software for use in such transactions is not the mere sale of a copyrighted
article, and thereby, liable to be taxed as royalty.
103
S.9 (i) (vi), Income Tax Act,1961.
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In view of such contradictory principles as laid down by the Court in

these cases, a moot point as to what transactions and payments constitute
royalty has arisen. In the light of the above judgments, various points need to
be examined before concluding that a payment is actually a royalty payment.
If there is an outright purchase with no interest remaining in the seller
company, the payment cannot be classified as royalty. Further, if the right to
use certain information is acquired, the payment can only be considered as
royalty if the information has some special features, expertise or skills.
Additionally, payment for information regarding industry or commercial
transactions cannot be treated as a royalty payment.
SCENARIO AFTER THE 2012 RETROSPECTIVE AMENDMENT

The Finance Act, 2012 inserted the following Explanations in section
9(1) (vi) with retrospective effect from June 1, 1976. :
Explanation 4: The transfer of all or any rights in respect of any right,
property or information (under the definition of royalty) to include transfer
of all or any right for use or right to use computer software (including granting
of a license) irrespective of the medium through which such right is
transferred;
Explanation 5: Consideration in respect of any right, property or information
is to be treated as royalty irrespective of its possession, user and location.
These Explanations were inserted to set at rest the doubts raised by various
judicial precedents as to whether consideration for use of computer software is
royalty or not; and to restate the legislative intent.
We may refer to the scope of the effect brought in the issue with the
retrospective amendment by Finance Bill, 2012 by inserting Explanation (4)
to 9(i)(vi) of the Act that included the word License under transferring of
Copyright. In the definition of royalty under the Act, the phrase "including the
granting of a license" is found. That does not mean that even a non-exclusive
license-permitting user for in-house purpose would be covered by that
expression. Any and every license is not what is contemplated. It should take
color from the preceding expression "transfer of rights in respect of
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46
copyright". Apparently, grant of 'license' has been referred to in the definition

to dispel the possible controversy that a license - whatever be its nature, can
be characterized as transfer.
Another important aspect to be noted here is the legislative intent
behind the Finance Act, 2012 which amended Section 9(1)(vi) of the Act to
provide that royalty includes transfer of all or any right for use or right to use
a computer software (including granting of license) irrespective of the
medium through which such right is transferred. Subsequently, various
Courts/Tribunal104 have held that the royalty payment related to software is
taxable by virtue of aforesaid retrospective amendment to Section 9(1) (vi) of
the Act. Reliance may also be place on the CBDT in circular no.621105 has
categorically stated that payment for acquisition of software under a license is
royalty. The intention of the legislation in subsequent retrospective
amendments is clear in this regard.
CONCLUSION
Thus, it can be concluded that taxation of software payments has been a
matter of debate in India. The controversy has been tried to be resolved by
issuance of various guidance time to time. Taking a cue from international
practice, given below are a few recommendations for bringing more clarity on
the taxation of software payments in India:
A distinction should be made between payment for copyright and payment
for copyrighted article. Payment for shrink-wrapped software made by an end
user to a distributor / re-seller should not be treated as payment for copyright
and accordingly should not be considered as royalty. Similarly, the payment
for shrink-wrapped software made by a distributor/reseller to the copyright
owner, where the distributor/reseller has no rights in the copyright, should
also not be considered as royalty.
Software that is bundled with hardware should be treated at par with
hardware as far as taxation is concerned.
104
DIT v. Nokia NetworksOY, (2013) 212 Taxman 68 (Del); B4UInternationalHoldingsLtd. v.

DCIT, (2012) 18 ITR 62 (Mum).
105
Circular 621: MANU/CBDT/0031/1991 of 19/12/1991.
47
VOL 1:2
It should be clarified that amendments in the Act regarding software taxation

would not have any impact on treatment under the DTAA.
A white paper may be issued after discussion with stakeholders to clarify the
tax treatment of software payments.
VOLUME 1
JUNE 2015
ISSUE 2
CHILD PORNOGRAPHY ON THE INTERNET:

INNOCENCE ENDANGERED
Nazuk Singhal & Himanshu Gupta
There can be no keener revelation of a societys soul than the way in which
it treats its children.
- Nelson Mendela
Given
the current statistics surrounding child pornography, we are
living in a country that is losing its soul.106 The Internet, mobile phones and
other electronic media provide children and young people with levels of
access to information, culture, communication and entertainment impossible
to imagine just 20 years ago. With many of their extraordinary benefits,
however, come hazards. The Internet and associated technologies have made
abusive images of children easier to create and distribute, and provide
significant new opportunities for abusers to access and make contact with
children and young people online. While information and communication
technologies (ICT) have not created crimes involving sexual abuse and
exploitation of children, they have enhanced the scale and potential of some
old and familiar ones. Expanding Internet access for all children and young
people without discrimination and exclusion in all parts of the world, together
with promoting digital citizenship and responsibility, ought to be critical
objectives for policymakers concerned with enhancing opportunities for
children.107
IV Year, UILS, Panjab University, Chandigarh.

The Honorable John Adams, Northern District of Ohio, U.S. v. Cunningham, 1:09-CR00154-JRA.
107
European NGO Alliance for Child Safety Online, The Right Click: An Agenda For
Creating A Safer And Fairer Online Environment For Every Child , 2, 5, 8 and 17 (June
2010). Available at http://insafecommunity.saferinternet.org/(last visited May 16, 2015).
106
49
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Nobody had anticipated that one-day development of internet a medium

of communication and data transfer could also become a curse for the
mankind in such number of ways. Online pornography plays an accessory
role in negative social issues such as child abuse, violence against women,
rape, inequality, relationship and family breakdown, youth crime, promiscuity
and sexually transmitted diseases. Cyberspace and the pornographic matter
transmitted through it have created challenges for India's antiquated laws. The
lack of jurisdictional boundaries and the sheer volume of traffic that the
Internet can handle, as well as the potential for anonymity have resulted in a
complete lack of control over what appears on the Web at the click of a mouse
button. Child molesters are using the electronic superhighway to look for
victims. The development of child pornography is fuelled by mainly two
factors, the inception and availability of home movies, videos, digital cameras,
computers and software, which made the making of child pornography
relatively cheap and secondly, the development of Internet technology, which
has increased ease of production and distribution of this material to amazing
height.108 This paper basically deals with the crime against children on
internet with special reference to cyber pornography and the global and
domestic legal provisions to combat this crime.
INTRODUCTION
Eroticism in ancient India was a well-studied concept as shown by the
Kamasutra, written by Mallanaga Vatsyayana sometime during the 2nd or 5th
century.109 It was considered to be an integral part of adult education at time.
However, major changes appear to have occurred following the British entry
and drafting of the Indian Penal Code by Lord Macaulay110 wherein Indian
culture was admixed with the Victorian system of ethical and moral
108
Ankush Bhadoriya, Child Pornography: National And Global Prespective, A Menace.

Available at:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=867f45cd-7a2e-4369-a966f4b4898c38be&txtsearch=Source:%20www.mightylaws.in
109
Available from: http://en.wikipedia.org/wiki/Kama_Sutra. (Last accessed on March 26,
2015).
110
Available from: http://en.wikipedia.org/wiki/Lord_ Macaulay. (accessed March 26, 2015).
2015]
CHILD PORNOGRAPHY ON THE INTERNET
50
standards. Subsequent growth of the pornography industry, fuelled by the

recent advances in information and technology, has also further shaped the sex
culture in India. The pornography industry is involved in the production and
distribution of sexually explicit materials including literature, photos, audio,
animation, movies, toys, and video games.111 The most popular modes of
access are magazines, compact discs, digital versatile discs, and the internet.
It is estimated to be a $57 billion/ year industry worldwide with its revenue
being larger than the combined revenues of all the professions, even football,
baseball, and basketball franchises put together.112
The advent of the internet and world wide web in India has
significantly influenced pornography distribution and access. It has provided
legal loopholes and made monitoring difficult, aiding the manufacturers and
distributors, while for the consumer round-the clock availability, easy
accessibility and anonymity were served. Internet access in India has grown
from 5 million in 2004 to 40 million in 2007 and continues to grow at the rate
of 17% a year, according to Web Metrics firm.113 Indias growth rate is the
third highest in the Asia Pacific region. Alongside this, accessing
pornographic material has also increased with 12% of internet websites being
related to pornography, and viewers being estimated to spend roughly 3000 to
4000 dollars per second.114 Younger individuals were found to be more likely
to use the internet both for viewing pornographic material and chat.115
111
Available from: http://www.economywatch.com/worldindustries/porn-industry.html. (last

accessed on March 26, 2015).
112
Available from: http://www.toptenreviews.com/2-6-04.html. (last accessed on March 26,
2015).
113
Available at:
http://www.comscore.com/Insights/Press-Releases/2009/11/China-India-Japan-Fuel-RapidGrowth-in-Asia-Pacific-Internet-Audience (last accessed on March 26, 2015).
114
Pope NAK, Voges KE, Kuhn KL, Bloxsome EL. Brisbane, Pornography and Erotica:
Definitions and Prevalence at International Non Profit And Social Marketing Conference
Social Entrepreneurship, Social Change And Sustainability (Griffith University, Australia,
September 27 and 28, 2007).
Available at: http://eprints.qut.edu.au/27717/2/27717.pdf (last accessed on May 16, 2015).
115
Traeen B, and Nilson TS, Use Of Pornography In Traditional Media And On The Internet
In Norway, 43, Journal of Sex Research, 245-54 (2006).
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MEANING AND WORLDWIDE DEFINITIONS OF CHILD

PORNOGRAPHY
Pornography is a Greek word, which originally meant writing about
prostitutes.116 The definition of what constitutes pornography varies
considerably across persons, gender, cultures, religions, communities,
countries, time, and also across generations. The definition used for this study
is a modified version of Kuhn et al.2007117, which states that pornography is
a communication material provided for the purpose of sexually arousing or
gratifying a user in isolation from others or in company of others. According
to UNCRC child pornography includes any representation of a child engaged
in real or stimulated explicit sexual activities or representation of the sexual
parts of a child for primarily sexual purposes. European Union defines as
any audio visual material, which uses children in sexual context.
International
Criminal
Police
organization
(Interpol)
defines
child
Pornography as means of depicting or promoting sexual abuse of a child,

including print and/ or audio, centred on sex acts or genital organs of
children. In United State of America, the Child pornography prevention Act
1996 defined child pornography as, any depictions, including any
photography, film, video, picture, or computer generated image or picture,
whether made or produced by electronic, mechanical or other means, of
sexually explicit conduct, where:
a) the production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct
b) Such visual depiction is, or appears to be, of a minor engaging in sexually
explicit conduct
c) Such visual depiction has been created, adapted, or modified to appear that
an identifiable minor is engaging in sexually explicit conduct; or
d) Such visual depiction is advertised; promoted, presented, described, or
distributed in such a manner that conveys the impression that the material is
116
117
Available at: http://en.wikipedia.org/wiki/Pornography. (last accessed on Jun 6, 2010).

Supra note 114.
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52
or contains a visual depiction of a minor engaging in sexually explicit

conduct.118
INDIAN LAWS AND CYBER CHILD PORNOGRAPHY

In India, the constitutional protection available to citizens, in respect of
their speech and expression, is enshrined in Article 19(1)(a) of the
Constitution of India. Sections 3 and 4 of the Indecent Representation of
Women (Prohibition) Act prohibits advertisements containing indecent
representation of women119 and the publication or sending by post of books,
pamphlets or in any form containing indecent representation of women.120
Section 67 deals with the penal offence of publishing of information, which is
obscene in the electronic form. Section 67 of the IT Act, 2000 is model on the
basis of Section 292 IPC. Earlier on child pornography the IT Act was silent
but the amendment made in the year 2008 the following section has been
inserted.
The Information Technology (Amendment) Act 2008 made certain
changes in Section 67 i.e. fine increased to Rs 5 lakhs for first instance and Rs
10 lakhs for subsequent instance and imprisonment reduced to three years for
first instance and 5 years for subsequent instance. New Section 67A
introduced to cover material containing Sexually Explicit Act increased
imprisonment and fine compared to Sec 67. This is a sub-set of Section 67
and compared to the existing Section 67, it does not represent any significant
change.
New Section 67B introduced to cover Child Pornography with stringent
punishment which provides imprisonment 5 & 7 years and fine Rs. 5 & 10
lakhs for first and subsequent instances respectively. It also covers
grooming and self abuse. New Section 67C introduced requiring
Intermediaries to preserve and retain certain records for a stated period. This
is an excellent provision. Period of retention needs to be notified. The
118
Available at http://www.cyber-rights.org/reports/uscases.htm (last visited on January 10,

2011).
119
Section 3, Indecent Representation of Women (Prohibition) Act, 1986.
120
Section 4, Indecent Representation of Women (Prohibition) Act, 1986.
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provisions of section 67 are wide enough to cover all perpetrators of Cyberobscenity, be it the Internet Service Providers, and web hosting entities or the
persons behind the actual web site. The concept of obscenity differs from
country to country, age to age, from region to region and even from person to
person, depending upon the particular social conditions and there cannot be an
immutable standard of moral values.
WHAT IS OBSCENITY/ PORNOGRAPHY?

As there is no proper definition of the said term the test for obscenity
was first laid down the Regina v. Hicklin121 as a tendency to deprave and
corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall. Lord CJ Cockburn in his
opinion in the Hicklin case explained that the danger of prurient literature was
that it would suggest to the minds of the young of either sex, and even to
persons of more advanced years, thoughts of a most impure and libidinous
character. In India, the Supreme Court in the case of Ranjit D. Udeshi v.
State of Maharashtra122 observed that the test laid down by Cockburn, C.J.
should not be discarded. It observed:
that the test of obscenity to adopt in India is that obscenity without a
preponderating social purpose or profit cannot have the constitutional
protection of free speech and expression and obscenity in treating sex
in a manner appealing to the carnal side of human nature or having
that tendency. The obscene matter in a book must be considered by
itself and separately to find out whether it is so gross and its obscenity
so decided that it is likely to deprave and corrupt those whose minds
are open to influences of this sort and into whose hands the book is
likely to fall. In this connection the interests of our contemporary
society and particularly the influence of the book on it must not be
overlooked.
121
122
(1868) 3 QB 360.
AIR 1965 SC 881.
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54
It further interpreted the word obscene as that which is offensive to

modesty or decency, lewd, filthy and repulsive. Also that section 292 of the
IPC was a reasonable restriction on the right of freedom of speech and
expression under Article 19 (2) of the Constitution.
In another case Samresh Bose v. Amal Mitra123, the court held that:
the concept of obscenity would differ from country to country depending on
the standards of morals of contemporary society. And that obscenity has a
tendency to deprave and corrupt those whose minds are open to such immoral
influences.
Another test for obscenity is the Miller Test which was laid down by the
United States Supreme Court in the case of Miller v. California.124 It is a
three-prong test for obscenity:
1. Whether the average person, applying community standards would find the
work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically denied by state law;
3. Whether the work, taken as a whole, lacks serious literary, artistic, political
or scientific value.
The third-prong of Miller test needs a more objective assessment of the
reasonable person test. This test was endorsed by the Supreme Court in the
case of Director General of Doordarshan v. Anand Patwardhan125 and also in
the case of Ajay Goswami v. Union of India126 where it was observed
thatthe test for judging a work should be that of an ordinary person of
common sense and prudence and not an out of the ordinary or hypersensitive
person.
In the last few years, lawmakers have been in a dilemma with regard to the
applicability of these tests for obscenity in an electronic environment. Dr. A.R.
Lakshmanan, J. in the Ajay Goswami case, while referring to contemporary
day and age of the internet observed that:
123
AIR 1970 SC 1390.

413 US 15 (1973).
125
(2006) 8 SCC 433.
126
(2007) 1 SCC 169.
124
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Community mores and standards played a part in the Indian Supreme

Court taking a different view from the general view taken by the
English Courts. The test has become somewhat outdated in the context
of the internet age which has broken down traditional barriers and
made publications from across the globe available with a click of the
mouse.
The United States Department of Justice has said that nowadays
commercial websites selling obscene materials are increasing both in
number and in the degraded quality of their images. Typically, these websites
offer an online mechanism for ordering physical products (such as magazines,
videotapes, or DVDs), provide online content viewable for a fee, or both.
Although many commercial websites are accessed intentionally, others
employ deceptive tactics to lure visitors, including the use of misleading
domain names (the website's address typed into the browser's window).127
Due to the widespread reach of the internet, such websites are accessible from
any corner of the world, even India.
The Delhi High Court in the case of Maqbool Fida Hussain v. Raj Kumar
Pandey128 has held that section 67 is the first statutory provision dealing with
obscenity on the internet and it must be noted that the both under the Indian
Penal Code, 1860 and the Information Technology Act, 2000 the test to
determine obscenity is similar.
PORNOGRAPHY IN ELECTRONIC FORM

In India, Sec 67 of the Information Technology Act regulates obscene
material in electronic form. The word publish has not been defined under
the Act. However, the Supreme Court held in the case of Bennett Coleman &
Co. v. Union of India129 that publish means dissemination and circulation.
In an electronic form, publication or transmission of information includes
dissemination, storage and circulation. Information is defined under section 2
127
Child Exploitation and Obscenity Section, United States Department of Justice,

http://www.usdoj.gov/criminal/ceos/obscenity_internet.html (last accessed on May 4 2009).
128
Delhi HC judgment dated 8/5/2008 under Criminal Revision Petition No. 280 and
282/2007.
129
(1972) 2 SCC 788.
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56
(1) (v) as information includes data, text, images, sound, voice, codes,
computer programmes, software and data bases or micro film or computer
generated micro fiche. So, the obscene material could be in any of these forms
to attract the offence of section 67. This section advocates that the obscene
material in electronic form must be considered by itself and separately to find
out whether it is so gross and its obscenity so decided that it is likely to
deprave and corrupt those whose minds are open to influences of this sort and
into whose hands the obscene material in the electronic form is likely to fall.
It is necessary to note that any offence related to obscenity in electronic
form cannot be tried under section 292 of the IPC, as section 81 of the ITA
states that the Act will have an overriding effect:
The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
Therefore, as a thumb rule, offences related to obscenity in electronic
form should be tried under the provisions of section 67 only and any attempt
to import provisions of section 292 of IPC would tantamount to disregard of
legislative intent behind the Act and cause miscarriage of justice.130 But, in the
recent judgment of Avnish Bajaj v. State (NCT of Delhi)131 both the provisions
were considered together in arriving at the judgment. Also, the punishment
under section 67 of the ITA is more stringent that section 292 of the IPC.
Section 67 is also criticized it is very easy for a person to escape criminal
charges just by proving his lack of knowledge of publication or transmission
of obscene information in the electronic form. Moreover, though publication
or transmission of obscene information may be illegal but mere possession,
browsing or surfing through obscene content is not an illegal activity.132
ANALYSIS
On a plain reading of section 67, it appears as if it seeks to assume the
role of a global supervisor and regulator. It gives the impression that any
person who puts up a sex web site in a foreign land showing obscenity, would
130
Vakul Sharma, Information Technology: Law and Practice, 157 (2007).

Avnish Bajaj v. State (NCT of Delhi), Delhi HC judgment dated 29/05/2008.
132
131
57
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also be liable there under. However, this is not so and cyber porno sites in
foreign lands, merely publishing pornographic material, would not be liable
under section 67 because section 75 provides that the IT Act shall apply to an
offence or contravention committed outside India by any person if the act or
conduct constituting the offence involves a computer, computer system or
computer network located in India. Therefore, if an Indian surfer visits a pornographic website based in a foreign land, the site would not be liable under
section 67 because it is the visitors act which gives him access to the website
whereas the website itself does not commit any offence. However, where a
website based in a foreign land transmits lascivious material to a person in
India or if, it advertises its services on a computer network in India, it would
be liable under section 67 of the IT Act. The essence is that the act or conduct
constituting the offence must involve a computer, computer system or
computer network located in India. As, search engines would also not be
liable under section 67 because they neither publish nor transmit any material,
if taken due diligence. A search engine is a virtual directory of thousands or
millions of addresses arranged subject wise or name wise, etc., which is used
by net surfers.
Another basic concern relating to Section 67, IT Act, 2000 would be as
to how the same would be implemented outside the territorial boundaries of
India. A majority of the pornographic content of the internet has been hosted
on websites, which are in turn hosted on web servers, which are located
outside the territorial jurisdiction of India, though available here. How would
law enforcement agencies in India check the offence of online pornography
emanating outside the country?
Technically speaking, the Information
Technology Act, 2000 states in Sections 1(2) and 75 that it shall be applicable
not only to the whole of India but also to any offence or violation of the
provisions of this Act done by any person of any nationality anywhere in the
world. This approach is clearly not practical under the norms of existing
international law. No country can assume jurisdiction over the citizens of
other countries. Enacting a law like the Information Technology Act with
2015]
58
transnational jurisdiction is likely to create a lot of challenges and problems,

more so in the context of regulating online obscenity and pornography.
The only material difference that Section 67 makes to the offence
defined under Section 292 IPC is that it has extended the same offence to the
electronic format. Thus, a peculiar situation is likely to emerge in the practical
working and implementation of the IT Act. For example, a person may
publish a pornographic book and he is liable to be punished with
imprisonment up to two years under Section 292 IPC. But at the same time, if
the same person publishes the pornographic book in the electronic form, then
he becomes entitled to a much higher imprisonment of three years and fine up
to five lakh rupees on first conviction under Section 67, IT Act, 2000.
The issues related to publication of obscene information in electronic
form has to be looked at from the perspective of extra-territorial jurisdiction
and Internet technologies, keeping in view that obscenity is no longer a local
or static phenomenon. It is now global and dynamic in nature and thus needs
strict interpretation of statute.
INTERNATIONAL TREATIES ON CHILD PORNOGRAPHY

The Optional Protocol on the Sale of Children, Child Prostitution and
Child Pornography is a protocol to the Convention on the Rights of the Child
and requires states to prohibit the sale of children, child prostitution and child
pornography. The Protocol was adopted by the United Nations General
Assembly in 2000133and entered into force on 18 January 2002. As of April
2011, 142 states are party to the protocol and another 24 states have signed
but not yet ratified it.
Article 1 of the protocol declares that states must protect the rights and
interests
of child
victims
of
trafficking, child
prostitution
and child
pornography, child labour and especially the worst forms of child labour.
The remaining articles in the protocol outline the standards for international
law enforcement covering diverse issues such as jurisdictional factors,
133
Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx.
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extradition, mutual assistance in investigations, criminal or extradition

proceedings and seizure and confiscation of assets as well. It also obliges
nations to pass laws within their own territories against these practices
punishable by appropriate penalties that take into account their grave
nature. According to the preamble, this protocol is intended to achieve the
purposes of certain articles in the Convention on the Rights of the Child,
where the rights are defined with the provision that states should take
appropriate measures to protect them.134 Though there are prohibitive and
penal laws for punishing cyber pornography, the real problem lies in the
implementation of these provisions by the law enforcement agencies. Besides
the dualism in India, there are inherent difficulties in applying these laws
honestly, fairly and without any bias upon the medium of the internet.
SUGGESTIONS
There is no settled definition of pornography, so, there should be a clear
definition of pornography. There should be a demarcation between obscenity
and pornography. Cyber cafe owner should ensure that the minors not
allowed to use computers in cubicles or behind partitions. There should be
some special training program from time to time for cyber cops, for the
purpose of to detect the problem as well as to dispose of them as earliest.
Steps are taken to sensitize society towards the concept of Morality. There
should be a separate censorship board at central level and empowered to ban
the sites which are in pornographic nature or posses pornographic content.
To educate the young mind from school level how to use the computer and
internet. To sensitize the parents through newspaper, advertisement and
special training program at school for the purpose to protect their children
from paedophiles. There is need to strengthen the international relation among
the nations for the purpose of co-operation to eradicate this problem.
CONCLUSION
Children and women are the vulnerable class in the Indian society.
Children are the future citizens and our hopes for tomorrow. There is a need to
134
Id.
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60
encourage the concept of parental guidance and make them aware about the
different ways in which their children can be abused on the internet. The
biggest question that arises is how would the present provision of` amended
Section 67, IT Act, 2000 be implemented? The Information Technology Act,
2000 does not specify the lex fori, or the forum for trying the offence under
Section 67. Which court would assume territorial jurisdiction on the same?
These issues have not yet been sorted out. The biggest fear that is looming
large is whether Section 67 of the Information Technology Act, 2000 would
be effective or would it just remain a paper tiger? So, Cyber pornography is a
violation of human rights. It is a degrading and demoralizing form of art that
is done in very poor taste. And thus the measures need be taken to decrease
the ease with which people can find these sites.
VOLUME 1
JUNE 2015
ISSUE 2
Re-Visiting the Right to Privacy

Praharsh Johorey
In
2010, a famous industrialist filed a petition against the State for
allowing taped phone conversations between a lobbyist and himself to be

leaked to the media, which resulted in their subsequent publication. While the
content of the tapes unravelled a large scale government scam, the petition
itself raised important, and yet unanswered questions regarding the equation
of the right to privacy in juxtaposition with the freedom of the media, in the
light of a possible consequent impact on ones reputation. Lines must be
drawn between the various rights read within Article 21, and the settled law on
defamation. While extensive debate exists on privacy in the realm of
government surveillance, Indian jurisprudence is limited in this context.
With a judgement expected from the Supreme Court on the matter, this
paper seeks to trace the development of all three rights, analyse the lacunae
that currently plague the law on Privacy in India and provide clarity on what
direction the court should take in deciding the outcome of the petition.
Extensive readings of English, American and European Law, from which
many personal rights were adopted in India were significant in this regard,
providing an insight into the development and modern interpretation of the
law of privacy, as well as the modern role of the media as a fourth pillar of
society. Analysis of the various facets of the law of privacy in the context of
media freedom involved a greater understanding of concepts such as Public
Interest, Public Figure and The Zonal Test, to determine whether the
petitioner could have had a reasonable apprehension of privacy in the present
matter. Only when such question can be answered in the affirmative, could a
claim for violation of ones right to privacy stand.
II Year, B.A. LL.B. (Hons.), National Law Institute University, Bhopal.
2015]
REVISITING THE RIGHT TO PRIVACY
62
The ultimate conclusions drawn from extensive analysis of foreign and

Indian authors, and case law; suggest that the Right to Reputation and the
settled law on defamation are distinguishable; in that to claim a violation of
Article 21, the claim must be of a far more grave nature, where the personal
integrity of an individual is violated, as opposed to the damage to ones
external reputation; such as in an action for defamation. The Supreme Court
must also err on the side of caution when curtailing the freedom of the media
under the guise of protecting an individuals privacy in the present matter;
given the vast impact the tapes had on the media, the government, and society
at large. While the conversations themselves may have been private, in the
context of the law on the matter, it is the conclusion of this paper that he could
not have had a reasonable apprehension of privacy, and the present petition
should not, therefore, stand.
INTRODUCTION
That rights are constantly evolving is an understanding as old as the
concept of rights itself. From the initial protection against interference of body
and property, rights have grown into protection of the right to life, intangible
property and peoples feelings and reputation.135 Earlier forms of law served
only to protect people against a direct infringement of trespasses vi et armis.
However, with the broadening of the scope of the law through interpretations
by the courts as well as granting of such rights by various parliaments, the
concept of rights now encapsulates the right to be left alone, better known and
understood as the Right to Privacy.136
More than a hundred years after the monumental article, The Right to
Privacy written by Warren and Brandeis was published, the legal framework
supporting the Right to Privacy has evolved tremendously, both in India and
abroad. However, while Indian courts have undeniably accepted its existence,
Samuel D Warren and Louis D Brandeis, The Right to Privacy, 4(5) Harvard Law
Review, 193-220 (1890).
136
Fowler Vincent Harper, The Law of Torts, by Thomas M. Cooley, 6(2) Indiana Law
Journal, 29 (1930).
135
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and interpreted this right to fall within the scope of Article 21 137, numerous
debates and issues have arisen with regard to balancing the Right to Privacy
with the Freedom of Speech, and most contentiously with the freedom of
Journalists to publish private information, but deemed to be published in
Public Interest.
In this paper, I will seek to trace the development of the Right to
Privacy, and juxtapose this right with the freedoms of the media. The
significance of the judgement cannot be ignored, as extensive law on privacy,
defamation and freedom of speech can be expected after thorough arguments
by a barrage of reputed lawyers before the court. Whether the petition filed
before the Supreme Court may lead to restriction of the media, and whether
the right to privacy may be balanced against such are questions that must be
answered. This article through analysis of Indian as well as foreign
jurisprudence on the matter had attempted to draw lines between the laws of
Defamation, the Right to Reputation and The Right to Privacy, as no clear
difference may be noted between them in existing Indian jurisprudence, with
courts often reading one right as the other. With this analysis, I have sought to
bring some clarity to the legal questions placed before the Supreme Court in
the aforementioned petition.
DEVELOPMENT OF THE RIGHT TO PRIVACY
There can be no doubt as to the need for the Right to Privacy, with the
burgeoning Digital Age upon us, and with the multitude of technological
methods available to the state to impose itself upon our privacy. Citizens of
democratic states need protection against such imposition, and have required
such for more than a century now.138 The origin of the right itself may be
drawn from American jurisprudence, where people first understood that only
a part of the pain, pleasure, and profit of life lay in physical things. Thoughts,
emotions, and sensations demanded legal recognition.139 It is from this idea
137
Kharak Singh v. State of U.P, AIR 1963 SC 1295.

Marion Manola v. Stevens & Myers, N. Y. Supreme Court, ' New York Times " of June 15,
I8, 2I, I890; Wvman v. Leavitt, 71 Me. 227.
139
Supra note 1.
138
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64
that rights such as defamation or libel140, honour of a family141 and copyright

and trademarks142 were created and enforced, as opposed to early rights
against assault, theft and other physical crimes against body and physical
property.
Early claims under the Right to be Left Alone pertained to the
unauthorised circulation of photographs of people in print media, wherein
suits were filed in American courts against such.143 The courts were required
to impose certain restrictions on the freedom of the media to publish images
and articles, even if no damage was caused to the reputation or standing of
that person in society by that publication.144 The manner of publication was
also held to be immaterial to judge whether or not a violation of this right had
taken place, as the right of each individual to determine to what extent his
thoughts or sentiments may be communicated to others, and the extent of
publicity received was secured by the common law.145
This Right to be Left Alone came to be known quite literally as the
Right to Privacy, as its understanding gradually evolved to include not just a
written version of thoughts, expressions and sentiments, but also include
conduct, conversation, attitudes, or facial expression.146 Thus, Privacy as a
concept in law came to encompass any aspect of life that a person believed to
be so, and was thus entitled by the law to protect himself against any
infringement of his private life.
In America, the right to Privacy came to be discussed as early as
1890147, and was subsequently affirmed by the courts in the case of Griswold
v. Connecticut148 which was a challenge to laws which prohibited the use of
contraceptives. Accepting the importance of privacy, the court stated that the
140
Year Book, Lib. Ass., folio I77, pl. 19 (1356).

Bedford v. McKowl, 3 Esp. I9 (I800); Andrews v. Askey, 8 C. & P. 7 (1837); Phillips v.
Hoyle, 4 Gray, 568 (I855); Phelinv. Kenderdine, 20 Pa. St. 354 (1853).
142
Hogg v. Kirby, 8 Ves. 2I5 (1803).
143
Supra note 4.
144
Millar v. Taylor, 4 Burr. 2303, 2379 (1769).
145
Id.
146
Supra note 1.
147
Supra note 1.
148
14 L Ed 2d 782.
141
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Governmental objective to control contraceptive use should not come at the

cost of the protected freedoms of individuals, or at the cost of marital
privacy.149
The Right as developed by American courts was as yet not formally
recognised as a tort or a cause of action in England.150 The courts took far
longer to develop a cause of action for an invasion of privacy, with the right
often protected under a breach of confidence.151After a series of judgements
that shied away from creating law, it was the judgement of Campbell v. MGN
Ltd.152 that finally created a law relating to privacy in England that held
publishers liable for the invasion of the private sphere of supermodel Naomi
Campbell. To codify such law, the European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950153, formally codified a right
to privacy;
Article 8:
1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
This Article raises important questions on what constitutes private
information, and whether there exists a difference between what is confidential
and what is private. However, most authors concede that the categories of
information that may be capable of being protected by the laws of confidence
149
Id., Judgement of Douglas J.

Kaye v. Robertson (1991 F.S.R. 62); Justice Gildwell stated, It is well known that in
English Law there is no Right to Privacy and accordingly there is no right of action for
breach of a persons privacy.Justice Bingham highlighted the failure of both the common
law and statute to protect in an effective way the personal privacy of individual citizens.
151
Madhavi Goradia Devan, Facets of Media Law, 171, 2nd edn. (2013).
152
Campbell v. MGN Ltd., (2004) 2 AC 457.
153
Rome, 4-XI-1950, available at http://www.echr.coe.int/Documents/Convention_ENG.pdf
(last visited on May 16, 2015).
150
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66
are almost limitless.154 The Articles themselves have helped develop the laws
on Privacy in England, influencing the court in a number of cases.155
Despite its development as an independent right in foreign systems, the
Indian Constitution did not recognise the Right to Privacy as an independent
right under the Constitution, as it was given no express mention. However, a
number of significant Supreme Court judgements have read Article 21 to
include this Right to Privacy, such as Kharak Singh v. State of U.P.156.The
court analysed the terms life and personal liberty, where life was
understood to mean something more than an animal existence, where the
inhibition against depravation extends to all those limbs and faculties by
which life is enjoyed,157 and personal liberty extended to imply freedom
from restrictions on his movements, but as civilisation advances, the
restrictions may be both physical as well as psychological. It was in this
regard that the following landmark statement was made:
The personal liberty guaranteed by the constitution prevents not
only restrictions placed on movements, but also encroachments on
private lives. It is true our constitution does not expressly declare a
right to privacy as a fundamental right, but it this right is an essential
ingredient of personal liberty. Every democratic country sanctifies
domestic life; it is expected to give him rest, happiness, peace of mind
and security.158
The Supreme Court has upheld this interpretation of Article 21, and
subsequent judgements have further elucidated the principle, and held that
Individual Autonomy must be the central concern of any government, and is
protected by explicit constitutional guarantees, as subtler and far reaching
means to invade privacy will be available to make possible what is whispered
in the closet to be heard in the street.159
Peter Carey, Media Law, 115, Sweet & Maxwell, 5th Ed. (2010).
Supra note 18; Douglas &Ors. v. Hello Ltd. &Ors., (2005) EWCA 595.
156
Supra note 3.
157
Munn v. Illinois, (1877) 94 US 113.
158
Supra note 3, 28.
159
Gobind v. State of M.P and Anr., (1975) 2 SCC 148.
154
155
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The court sought to therefore interpret the Right to Privacy within the folds
of Article 21 of the Constitution, allowing it the same legal position as the
freedom of speech160and right to equality.161 However, the two cases
previously discussed pertained to state surveillance of criminals, and thus took
place in an independent factual matrix from the one sought to be addressed by
this paper, as each case of infringement of right to privacy must be judged on
a case-by-case basis.162
It was in the case of PUCL v. UOI163, which pertained to state agencies
tapping telephone conversations, where the court held that the right to privacy
was conclusively placed within Article 21. It was said that the state
eavesdropping on a persons conversations on the telephone is a violation of
the right to privacy, and cannot be done, unless it is permitted by the
procedure established by the law,164 thereby also expanding the exception
under Article 21 within which such acts could be done. It was from this case
where various defences such as public interest, proportionality and public
records arose in response to violations of the right to privacy.
In the present matter, the petitioner chose not to challenge the legality
of his phone being tapped by the Income Tax department and instead chose to
focus upon the illegality of the subsequent leak of the tapes by the government
agency, and the impact of the subsequent publication upon his right to
privacy. Thus, this article concerns itself solely with this question of law, and
not the concept of state surveillance and its impact on privacy.
FREEDOM OF THE PRESS

The Constitution allows all citizens the right to freedom of speech,
expression and thought.165 These freedoms weave a fabric of a free and equal
democratic society,166 and are inherent in the status of a free country.167
160
Article 19(1) (a), Constitution of India, 1950.

Id, Article 14.
162
Supra note 24.
163
(1997) 1 SCC 301.
164
Id, 18.
165
Supra note 26.
166
M.H Devendrappa v. Karnataka Small Industries Corporation, (1998) 3 SCC 732, 16.
167
State of W.B v. Subodh Gopal Bose, (1954) SCR 587.
161
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68
There has been wide interpretation of the manner of expression, in that

pictures, writing and printing also within its scope, and would thus include the
freedom of the Press.168 The court extended this to the freedom of propagation
of ideas, which is guaranteed by the freedom of circulation, as liberty of
circulation is as essential to that freedom as the liberty of publication.169 By
extending fundamental rights to the media, the courts strengthened The
Fourth Pillar of Democracy as it has come to be known, as an independent
voice in society that had a duty to inform without bias and prejudice, to ensure
an aware and constantly evolving populous.
However, as may be noted throughout the scheme of the Indian
Constitution, no rights are absolute.170 The freedoms of the press are curtailed
by certain reasonable restrictions so as to not give it an uncontrolled license,
and prevent disorder and anarchy.171 The European Convention of Human
Rights and Fundamental Freedoms have also addressed the need for
reasonable restrictions in its codification;172
Article 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation
168
LIC v. Manubhai D Shah, AIR 1993 SC 171, 5.

RomeshThapar v. State of Madras, AIR 1950 SC 124.
170
P.P Enterprises v. Union of India, AIR 1982 SC 1016, 8.
171
In Re: Harijai Singh &Anr., (1996) 6 SCC 466.
172
Supra note 19.
169
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or rights of others, for preventing the disclosure of information

received in confidence, or for maintaining the authority and
impartiality of the judiciary.
That there is a need for certain restrictions of the media is a universal
understanding.173 A case before the Supreme Court where the editors of a
publishing had been negligent in examining the authenticity of their article,
the court held that if a newspaper publishes what is improper, mischievously
false or illegal it will be held punishable by a court of law, as newspapers and
other publishings have a responsibility to guard against untruthful news and
utterances, due to their wide circulations.174
It was keeping in mind this significant role of the media in society that
steps were required to be taken to protect against it from exceeding its power
of providing people with information and views tested and found to be true.175
The media has made it possible to bring the private life of an individual into
the public domain, exposing him to the risk of an invasion into his space and
his privacy. While there was a time when the only source of information from
the media was newspapers, this has changed drastically over the last decade,
with the explosion of visual and electronic media.176 It is this power that must
be carefully regulated, and must reconcile with a persons right to privacy. 177
It must be noted that privacy is not one of the exceptions mentioned in Article
19(2), and thus is not an express restriction to the freedom of the media.
The Freedom of the Press vis a vis the Right to Privacy of an individual
was discussed by the Supreme Court division bench in the case of R
Rajagopal v. State of TamilNadu178. While the judgement itself was
significant as it conclusively read the Right to Privacy as a part of Article 21,
its lasting legacy has been establishing certain exceptions to actions for
invasions of privacy, particularly against the media.
173
With the exception of the Constitution of the United States of America, where the first
amendment allows for absolute freedom to the media.
174
Id.
175
Sanjoy Narayan v. High Court of Allahabad, (2011) 13 SCC 155.
176
Supra note 151.
177
Id.
178
(1994) 6 SCC 632.
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70
While cases on Privacy before the Indian courts have addressed issues
like revelations of a police-criminal nexus179, police surveillance180and
government phone-tapping181; foreign judgments have analysed more wideranging aspects of the right to privacy; notably of famous personalities182,
allowing a more extensive understanding of what constitutes private
information.
The Supreme Court in this light has therefore to answer a series of questions:
1. Should the Industrialist have had a reasonable apprehension of privacy,
especially considering the nature of his conversations?
2. Do public figures in India have a lower right to privacy?
3. Can the media publish any information it believes to be in the public
interest?
This article in the following sections analyses the existing law on all of
these questions, along with an understanding of what shape the law may take
in the judgement. Before addressing the crux of this article however, we must
first understand the nature of damage claimed by the petitioner, and whether
or not it even falls within the ambit of a claim for violation of the right to
privacy.
THE RIGHT TO REPUTATION

The current petition claims that by publishing information without
express permission, the media houses have violated the petitioners right to
privacy, and consequently, his right to reputation. Does Indian law identify a
distinction between these two rights, having both been read within Article 21?
Does a claim for violation of the right to reputation differ from one of
defamation? These are fundamental questions of law that have as yet to be
conclusively answered by the court, and might well be done in the instant
matter. Thus, an analysis of the current position is required.
179
Id.
Supra note 3.
181
Supra note 29.
182
Supra note 21.
180
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In India there exists settled law for an action for Defamation, both
criminal183 and civil. A defamatory statement is simply one that injures a
persons reputation, and a simple test to judge whether or not a statement
was defamatory was to judge whether or not the statements were calculated
to injure the reputation of the other, and expose him to hatred, contempt or
ridicule.184 From such statements arose the following essentials for an action
of defamation:
a. The statement must be defamatory;
b. The statement must refer to the plaintiff;
c. The statement must be published by the plaintiff;
There have thus been numerous cases in India that have accepted this
common law conception of the right against defamation, and included as part
of the restriction placed on the freedom of speech under Article 19(2) of the
Constitution.
There simultaneously exists, while not being explicitly stated in the
constitution, a fundamental right to preserve ones reputation. 185 Reputation
has been defined to mean a good name, the credit, honour or character which
is derived from a favourable public opinion or esteem, and character by
report.186 The Supreme Court has read this right to fall within Article 21,
while stating Personal rights of a human being include the right of
reputation. A good reputation is an element of personal security and is
protected by the Constitution equally with the right to the enjoyment of life,
liberty and property.187 Further, the court held that the right to freedom of
expression must be held subject to the right to preserve peoples reputation.188
From this discussion, three fundamental questions arise:
a. Does there exist a distinction between an action for infringement of the
right to reputation and one for defamation?
183
Sec. 499 and 500, Indian Penal Code, 1860.

Parmiter v. Coupland, (1840) 6 M&W 105.
185
State of Maharashtra v. Public Concern for Governance Trust, (2007) 3 SCC 587.
186
Kishore Samrite v. State of U.P, (2013) 2 SCC 398.
187
Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591.
188
Id.
184
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72
b. Does there exist a distinction between an action for defamation and one
for an infringement of the right to privacy?
The first question is significant. Instead of proceeding to the Trial court
for an action for defamation, could one simply approach the Supreme Court
for a violation of the fundamental right to reputation? The answer lies in
analysing what constitutes reputation, and whether all claims that would
lower ones image in society would necessarily lower ones reputation as
such.
The landmark case of Chauvy v. France189, which was the first case to
balance the right to privacy and the freedom of the media, created a way for
defamation plaintiffs, who had failed to obtain satisfaction in domestic
proceedings, to claim a violation of Article 8 at the ECHR.190
An important case for our purpose to drawing a distinction between
these two claims is the case of Karako v. Hungary191. Here, a flyer distributed
during an election campaign in which the applicant, a politician standing in
the elections, was accused of having exercised his parliamentary functions to
the detriment of his country of origin. Herein, the court reassessed the notion
of whether private life may be extended to include reputation. It decided that
the notion of the right to reputation should only be recognised when there are
serious allegations which have a direct effect upon the applicants life, and not
simply when he/she is aggrieved by the words of others.192 They further drew
a distinction between when an action may arise for an infringement to ones
reputation, and when a defamation case must be instituted:
The court said that there exists a clear distinction between personal
integrity and reputation. While reputation is protected by the law of
defamation, personal integrity must come to be protected by more sacred
laws. Put simply, reputation has traditionally been protected by the law of
defamation as a matter related primarily to financial interests or social
189
2004-VI Eur. Ct. H.R., 211, 229-30.

StijnSmet, Of Rights and Interests, Strasbourg Observers (April 28, 2010).
Available at: http://strasbourgobservers.com/2010/04/28/of-rights-and-interests (last accessed
on January 24, 2015).
191
App. No. 39311/05.
192
Id., at 22-23.
190
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status.193 Personal Integrity however, is an inalienable right. So while external

evaluation of a person may fall, he will still keep his integrity.194To file a
claim for the Right to Reputation, distinct from an action for defamation, a
person must show violation of personal integrity, and not simply the esteem of
society.
Personal and Psychological Integrity was spoken about in the case of
Von Hannover v. Germany195, wherein it was defined to mean the guarantee of
development, without outside interference, of the personality of each
individual in his relations with other human beings.196
It may therefore be contended that for a challenge under Article 21 for
the right to reputation, they cannot simply be cases where the esteem of an
individual was impaired, but the personal and psychological integrity of a
person was taken away, thus depriving them of a fundamental right to
interaction and the ability to create relations. Can it be said therefore, that the
Right to Reputation of the industrialist was violated? In this light, it cannot.
The petition itself enumerates ingredients that fall within an actionable claim
for defamation. The Supreme Court must therefore actively differentiate
between the two claims, as no case law currently distinguishes the ingredients
for a claim under Article 21.
This brings us then to the second question; of addressing the distinction
between an action for defamation and one for an invasion of the right to
privacy. For this, we can go back to the very origin of the Right to Privacy
itself; where it was said197, The principle on which the law of defamation
rests, covers, however, a radically different class of effects from those for
which attention is now asked (The Right to Privacy). It deals only with
damage to reputation, with the injury done to the individual in his external
relations to the community, by lowering him in the estimation of his fellows.
Therefore, the law of defamation only covers external damage to the
193
Supra note 59, 22.

Id., 23.
195
Application no. 59320/00.
196
Id. 50.
197
Supra note 1, p. 5.
194
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74
reputation of a person for unjustified statements, and as a claim is

fundamentally material in nature.
On the Right to Privacy, they stated, On the other hand, our law
recognizes no principle upon which compensation can be granted for mere
injury to the feelings. However painful the mental effects upon another of an
act, though purely wanton or even malicious, yet if the act itself is otherwise
lawful, the suffering inflicted is damnum absque injuria. Thus, the distinction
drawn by Warren and Brandeis was limited to when a cause of action may
arise for either claim, where a Right to Privacy claim could not be sustained
simply for an injury to feelings if the act was otherwise justified.
The distinction between the two claims was further analysed in the
Second Restatement of Torts198 wherein the American Law Institute
identified the following differences:
a. That truth may be used as a defence for a claim against defamation, but
not against a claim for invasion of privacy;
b. An action for defamation is required to prove special damages, whereas a
privacy claim is not;
c. Defamation requires impact on the standing of the person in the
community to which he belongs; whereas a privacy claim requires injury
to the person irrespective of his/her standing in the community;
d. The primary damage in a claim for defamation is the damage to
reputation, whereas in a privacy claim, the primary damage is the mental
distress from exposure to public view.
With this, we may note that the petitioner may have a claim for a
violation of his right to privacy, distinct from the impact of the revelations
upon his reputation. Having been subjected to surveillance by the state, his
private conversations were published without his permission; thus allowing
for a claim of infringement of privacy. However, could he have had a
reasonable apprehension of privacy, given the nature of his conversations?
198
Restatement (Second) of Torts, cmt. b. (1965).
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WHAT IS PRIVATE INFORMATION?

It seems to us that information will be confidential if it is available to
one person (or a group of people) and not available to others, provided that
the person (or group) that possesses the information does not intend that it
should become available to others.199
What makes the law on privacy a complicated affair is that the concept
is itself entirely subjective; as what is private information for one, may not be
for the other.200 Indian law on privacy, particularly Supreme Court judgements
have largely analysed the Right to Privacy in the context of state surveillance,
security, and defence of the state. Consequently, there exists an absence of
authoritative judgements within Indian jurisprudence on what constitutes
private information; requiring therefore an analysis of Common law cases.
Early privacy law required a relationship of confidence between two
parties for information to be declared as private, which severely restricted the
development of the law.201 This was however amended in the case of Stephens
v. Avery202, where the court held that a future duty of confidence would be
created whenever the recipient of information knew or ought to have known
what was to be reasonable apprehended as confidential. It is an affirmative
answer to the question, Was there a reasonable expectation of privacy? from
which a claim for breach of privacy arises. Eady J. sought to analyse this
proposition, and said that intimate personal relationships can in themselves
give rise to obligations of privacy, in respect of information given in the
course of them.203
The court has found that it is doubly important when alleging a claim
for privacy when information published is passed between two people in the
context of a relationship of confidence. In the McKennit case204, many of the
matters disclosed to the defendant arose from their close and longstanding
199
Supra note 21, 55.

Supra note 20, p. 114.
201
Duncan Bloy and Sarah Haldwin, Law and the Media, 2nd Edition, 212 (2013).
202
[1988] 1 All E.R. 477.
203
Lord Browne of Madingley v. Associated Newspapers, (2007) EWHC 202 QB, para 11.
204
McKennit v. Ash, (2006) EWCA Civ 1714.
200
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76
friendship which the court said created a reasonable apprehension of privacy

in the mind of the claimant, and would therefore amount to a breach of
confidence.
However, interference with private life has to be of some seriousness
before Article 8 is engaged. In a claim brought by princess Caroline of
Monaco arising out of the publication of photographs of her engaged in
various activities205, the court held that the concept of a private life extends to
aspects of personal identity, such as a persons name or picture, and that it
includes a persons physical and psychological integrity. There is therefore a
zone of interaction of a person with others, even in public interaction with
others which may fall within the scope of private life.206 From this case
therefore, we may draw the conclusion that even photos taken in a public
place may form part of a persons private life, and publication of such would
constitute an infringement.
However, none of this may take away from the root principle that
ascertaining the nature of information cannot be done through application of a
general principle, but on a factual basis. In the case of the Murray v. Big
Pictures Ltd.207, the court of appeal stated. The question of whether there is a
reasonable expectation of privacy takes into account all of the circumstances
of the case, which include;
a.
The attributes of the claimant;
b. The nature of the activity in which he was engaged;

c. The place at which the activity was happening;
d. The nature and purpose of the intrusion;
e. The absence of consent and whether it was known or could be inferred;
f. The effect on the claimant and the circumstances in which;
g. The purposes for which the information came into the hands of the
publisher.
205
Von Hannover v. Germany, (2005) 40 EHRR 1.

Id.
207
[2008] EWCA Civ 446.
206
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From the preceding discussion, we may note that even if the Industrialist
was having a conversation on his phone, and expected its contents to remain
private; the courts understanding of what is private information may differ.
The court shall adjudge whether the conversation could indeed be protected
by the law only upon examination of the contents of the conversation, and for
what reason the information was published. Being of such nature to expose
the widespread wrongdoings of high ranking government officers, the media
subsequently stated that all information was published in the larger public
interest, and are thus exempt from censor. We must therefore gain a better
understanding of how the courts have viewed such defences, before
ascertaining whether the media can be exempted in the present scenario.
THE BALANCING EXERCISE

Privacy claims cannot be held to be of higher importance than the right
to freedom of speech, and thus, courts both foreign and Indian have created a
number of tests to determine when a person may not have a reasonable
apprehension of privacy; i.e. when the press may exercise its right to freedom
of speech.
The European Courts have applied several criterions in their attempt to
address conflicts between any two rights. The first such criterion is the
Impact Criterion, where the seriousness of the impact of one right on the
other is adjudged. For example, if the right A of individual X impacts the right
B of individual Z, and the impact of the exercise of right A on B is greater
than the impact of B on A, then individual Z has a stronger claim. The second
criterion is the Core/Periphery Criterion, where the court must determine
whether the rights brought into conflict belong to the core or periphery of
human rights. For example, if the right A of individual X is in question against
right B of individual Z, and it is found by the court that A belongs to the core
of human rights, while B belongs to the periphery, then individual X has a
stronger claim. The third criterion is the Additional Rights Criterion, where
the rights in question are not limited to Human Rights, but also involve
additional rights. The strength of each partys claim may depend on the
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78
additional rights impacted. The fourth criterion is what is now popularly

known as the Public Interest Test; where, if the impact of the right violation
is felt on the larger general or public interest, then the party so aggrieved
would have a stronger claim.
However, these criterions are not be judged as inflexible, or strictly
binding. Each such rights situation has to be judged on the case by case basis,
and cannot be judged simply through the application of criterion; which must
not be viewed as static. However, most cases that have sought to address the
clash between the right to privacy and the freedom of the media have used a
number of tests to determine how these rights must be balanced, as will the
Supreme Court, considering the vast number of aspects of the petition
required to be addressed. The court will be required to analyse claims relating
to the importance of:
a. The significance of the conversations;
b. The standing of the petitioner in society;
c. The ability of the media to discern what is in fact in the public interest.
Therefore, analysis of this entire proposition is required to critically analyse
the scope of the judgement itself.
THE PROPORTIONALITY PRINCIPLE

In cases where there exists a conflict between Article 21 and Article
19(1) (a); neither may take precedence over the other. The case will have to
be judged on a case by case basis, as no universal rule may be applied. This
may be applied also to foreign judgements as well, in a conflict between
Article 8 and Article 10. Where conflict arises, intense focus is necessary
upon the comparative importance of the specific advantages being claimed in
the individual case.208 The court first enunciated what is now known as the
Proportionality Principle by saying Balance must be brought between the
freedoms of speech granted to the media, and the laws consistent with the
democratic way of life (privacy) as granted by the Constitution.209The
208
209
HRH v. Prince of Wales, (2007) 2 All ER 139.

Supra note 45, 21.
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principle of proportionality has been a recurrent discussion in cases pertaining

to the right of privacy.
The balance must be arrived at between the public right to information
and whether it would justify dissemination or publication of information taken
covertly and without authorisation, thus invading the right to privacy. As
stated earlier, in carrying out such exercise, the material factors include, but
are not limited to the status of the applicant, the status of the plaintiff in the
proceedings, the existence of a public interest, the content, tone and form of
the statement, the distinction between statements of fact and value judgments
and the duties and responsibilities of the publishing agent.
210
The crux of the
proportionality principle however, lies in the understanding that the decisive

factor in balancing the protection of the private life against the freedom of
expression should lie in the contribution that the publishing makes to a debate
of general interest.211 The Supreme Court in the present matter must
therefore weigh the rights of the industrialist to have a private conversation
free from publication, vis a vis the right of the media to publish any
information that it deems worthy of such. Both rights, as established earlier,
have been upheld as sacred to the fundamental rights of either party.
Therefore, the only situation in which either right may be curtailed is if the
media shows sufficient cause for its actions, or provides adequate justification
for the publication of the entirety of the conversation. In court, they have
relied on the following key arguments:
THEPUBLIC INTEREST
The test to be applied is whether in all circumstances, it is legitimate
for the owner of the information to seek to keep it confidential or whether it is
in the public interest that the information should be made public.212 We have
noted thus far that privacy is not an absolute right, 213 and may have to give
210
ztrk v. Turkey, App. No. 17095/03, 32; Chauvy v. France, 2004-VI Eur. Ct. H.R. 211,
230; Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) 14, 26 (1986).
211
Supra note 72.
212
Supra note 76.
213
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80
way when there is public interest in the disclosure which outweighs the public
interest in keeping the information private. This decision lies with the court.
While public interest has not been strictly defined, it may be narrowly
constructed to imply a positive effect upon the public.214
Lion Laboratories215 serves as a case in point. Documents proving the
defectiveness of a breath-analyser were published in a newspaper after being
leaked by an ex-employee of the company. When claiming confidentiality of
the documents, the court disagreed, and said that it was in the public interest
that the wider public be made aware of the defects in such equipment, despite
the apparent breach of confidence. This concept has been discussed in medical
cases as well. In the case of X v. Y216, the defendants were a publishing agency
that threatened to publish the names of doctors who were suffering from
AIDS, but had not revealed so, putting people around them at risk. The
claimants filed for injunction of this publishing in the larger public interest,
fearing that AIDS patients would fear disclosure when revealing their
condition to hospitals. It was this right to privacy that outweighed the freedom
of the press to publish, and the court upheld the injunction against the
publishers. Fame in the context of privacy claims does not amount to being a
public figure, as the interest of the public cannot be equated with public
interest.217 In other words, what the public might find interesting, amusing, or
exciting will not necessarily fall within the scope of public interest. This
difference has been particularly discussed in cases where celebrities believe
their privacy has been impacted. The courts have held that while there may be
legitimate interest of the public in every aspect of the lives of celebrities,
every aspect of their life cannot be opened to public scrutiny. With this in
mind, was the disclosure in the public interest?
The consequences of the publication were profound on a national scale.
The conversation itself revealed a deep decay in Indian democracy, by
demonstrating the nature of control that industrialists and lobbyists have over
214

Loin Laboratories v. Evans, (1984) 2 All E.R. 417.
216
(1988) 2 All E.R 648.
217
215
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key cabinet allocations. Further, the unravelling of a widespread and hugely

damaging scam that had an impact even up to the highest ranks of government
implied therefore the tremendous public interest in the publication. Therefore,
then nature and context of the conversations in itself renders the defence of
public interest for the media an effective one, that will prove decisive in the
decision of the court.
PUBLIC DOMAIN
What of information already in the public domain? Will such
information be protected by privacy laws as well? In the case of Attorney
General v. Newspaper Publishing Plc.218 (Spycatcher case), the House of
Lords held that the government could no longer prevent publication of a book
because it was already so widely published abroad that it had become public
knowledge. In a Dutch case219, the court held that after twenty thousand issues
of a magazine were already published prior to an action for restraint, no
further restraint may be ordered as the information was already public.
However, these cases cannot be held to have laid down an established
principle. The court stated in the Spycatcher Case, the court differentiated that
case from other restraining orders, as more than a million copies of this book
had been sold worldwide.220 Information does not cease to be private just
because it has been shared with a limited audience. If the information is not in
the larger public domain and is not intended to be generally available, it may
be entitled to protection.221
The case of Peck v. United Kingdom222, a man was caught by a CCTV
camera cutting his wrist on a public street while suffering from depression.
The police released these photographs and videos to the public to demonstrate
the utility of these cameras. The European court found that the publication of
these photographs without the permission of the individual was a violation of
his right to privacy. Even though he had committed the actions on a public
218
(1987) 3 All ER 276 (CA).

VereningWeekblad v. Netherlands, (1995) 20 EHRR 189.
220
Observer and Guardian v. United Kingdom, (1991) 14 EHRR 153.
221
Supra note 76.
222
2003 EMLR 15.
219
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82
street, he could not have reasonably apprehended that his actions would be
shown on a national level, and thus despite the act being public, he was able
to sustain an action for privacy.
From this also arises what is known as the Zonal Test, where when a
claimant has opened up to legitimate public scrutiny, and that this zone of
his life was were made part of the public property, cannot now claim a
reasonable expectation of privacy in respect of the contents of revelations
which cover similar matters.223 The courts characterisation of what is truly in
the public domain will not be tied specifically to the details mentioned, but to
the general area or zone of the claimants personal life which he has chosen to
expose.224
This is where the Supreme Court may be hesitant to apply
internationally accepted defences. To say that simply by being an industrialist
with political connections opens him up to any public scrutiny relating to
politics, or his ability to sway political leaders would set a potentially
dangerous precedent. While the test itself may be sparingly used, it would in
reality serve as a legitimate cause for any surveillance of powerful
industrialists, and not serve to protect the privacy of these individuals.
PUBLIC FIGURE
Courts have since the onset of the concept of privacy been required to
address a simple just hugely significant question, do public figures or
celebrities have a lower right to privacy than others? The European Court has
held on several occasions that when private individuals enter the public arena
they lay themselves open to public scrutiny and should therefore display a
greater degree of tolerance to criticism.225 The principle assumes that by
entering the public sphere, one has accepted or consented to a degree of
criticism, which would be otherwise unacceptable for a private individual.226
However, this is a preferential interpretation of the impact criterion.
223
Supra note 76, 106.

A v. B (2003) QB 195, 28.
225
Bodroi v. Serbia, App. No. 32550/05, 54.
226
Tammer v. Estonia, 2001-I Eur. Ct. H.R. 267, 280.
224
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The Campbell227judgement better analysed this proposition. Photographs

had been published of Naomi Campbell, an internationally known model
visiting a drug rehabilitation clinic, which she believed was a violation of her
right to keep such information private. The court in a widely praised
judgement stated that, A person may attract or even seek publicity about
some aspects of his or her life without creating any public interest in the
publication of personal information about other matters. 228
The court also unflinchingly held that even international celebrities
have a residual area of privacy, the breach of which would amount to a cause
of action.229 However, the court did allow for a slight allowance and held that
sometimes there will be other justifications for publishing, especially where
the information is relevant to the capacity of a public figure to do the job.230
The court said that it would be slow to espouse any principle that sought
restriction of the media, especially when no direct harm could be gathered
from publication.
The question before the court would be better framed as; Do famous
industrialists, or any professionals for that matter fall within this conception
of being a celebrity, thus reducing the scope to claim privacy? The answer
lies in careful analysis of what constitutes being a public figure. It is clear that
the number of companies run, and the number of people employed
consequently directly implies that an industrialist of a certain stature have a
significant influence of the lives of a large number of people. Therefore, at
such stature, it may be safely concluded that there will be an increased
incidence of public scrutiny on such people, which may be justified. However,
this does not justify imposition on every aspect of their existence, nor an
unholy amount of surveillance of their actions. In the present matter, the court
would be cautious in holding that by virtue of his stature in society, the
industrialist, could not have had a reasonable apprehension of privacy due to
his exalted position.
227
Supra note 18.

Id., 57.
229
Id., 68.
230
Id, 157.
228
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84
CONCLUSION
The future of privacy is constantly in question. With incessant
revelations of widespread government surveillance of citizens, people are now
more concerned about their right to keep certain information private. We
therefore stand at a crucial juncture in Indian law, with the judgement of
Ratan Tata v. Union of India and Ors. expected to create, or at the very least,
provide substantial clarity on the law of privacy in India.
In the light of the tests aforementioned; the court cannot reasonably
restrict the freedom of the media to publish information of such gravity. The
contents of the conversation are significant; both for highlighting the fragility
of our supposed democracy as well as the tremendous influence
industrialists and lobbyists have on how governments function. Could
publication therefore be excused on the grounds of public interest? The
Australian High Court has held in favour, where it was said that It is
unacceptable that in a democratic society that there should be restraint on the
publication of information relating to government when the only vice of that
information is that it enables the public to discuss, review and criticize
government action.231 The 2G scam went to the very root of our democracy,
and its exposure enabled discourse on corruption and its widespread impact on
citizens. The publication of the scam itself was hugely significant, and helped
expose the nexus between politicians, the media and powerful industrialists.
Further, could the industrialist have had a reasonable apprehension of
privacy, being a public figure himself? Again, the Campbell case must be
referred to. If the intrusion into the life of a public figure infringes on his
residual area of privacy, there would arise an actionable claim. However, as
the tapping of conversations is itself not being challenged, the subsequent
publication cannot fall within such sphere. The zone of his life, namely
politics, lobbying and government allocations have a significant impact on the
public, and cannot therefore be so protected.
231
Francome v. Mirror Group Newspapers Ltd., (1984) 1 WLR 892.
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The court must finally weigh two rights, and seek to balance them in the
interest of justice. The freedom of the press is an unquestioned pillar of our
democracy, and the court would be err on the side of caution in restricting it,
which would lead to what is known as the chilling effect upon the media.
The Right to privacy must be weighed on a case by case basis, and each
individual retains this right. However, as discussed earlier, when a person may
have a reasonable apprehension of privacy depends upon the factual
scenario. The nature of the conversation, the status of the applicant, and the
importance of the publication all point to ensuring the freedom of the press is
upheld in the present case. Whichever way the Supreme Court decides, there
is a range of questions regarding privacy that are required to be answered. It
promises to be a landmark judgement.
VOLUME 1
JUNE 2015
ISSUE 2
A GENE PATENTING BREAKTHROUGH: THE MYRIAD STORY

Pooja Shankar
Patents on naturally occurring genetic materials have been issued on

a widespread basis throughout the United States since a significantly long
time. This authorization of patenting on natural products of the human body
has created a great deal of controversy over the years, owing to its economic
and ethical dilemmas and implications. However, on June 13, 2013, a
Supreme Court judgment managed to break this trend and cause what some
pharmaceutical industries now regard as a revolution in the biotechnology
industry. The case of Association for Molecular Pathology v. Myriad Genetics
has developed a decision that has changed the very fate of breast cancer
testing. The decision to legally prohibit the patenting of naturally occurring
genomic materials has resulted in both relief and regret among different
parties involved. Myriad has claimed that the isolation of the BRCA1 and
BRCA2 genes suffices the level of innovation that the Patent Act of 1952
mandates in order to permit the issue of patents on such subject matters.
However, the Supreme Court has managed to clarify that the mere investment
of time and money in the extraction of genetic materials does not satisfy the
requisites the statute commands, and that a certain degree of manipulation and
innovation on the extracted genetic codes is required in order to receive and
validate such a patent. But, the court did favour Myriad Genetics on the
subject of valid patenting of their man-made cDNA that replicated the BRCA1
and BRCA2 genes. Thus, the judgment offers significant clarity on the
position of genetic patenting that exists in the United States today.
Utilizing relevant precedence, a comprehensive analysis of the case and
its stages of litigation shall be undertaken, accompanied by an outline of the
predicted and present consequences of this decision, including the fact that it
III Year, B.A. LL.B (Hons.), NALSAR, University of Law, Hyderabad.
87
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creates greater access to testing for potential patients and carriers of breast
cancer, but also discourages origination and modernization with respect to
developing new techniques of breast cancer testing due to increased
competition and less chances for profitability.
This paper shall further delve into the dilemma that exists between
choosing to patent a product, and choosing to keep its information confidential
under the trade secret regime, whilst discussing the beneficial and
problematic aspects of both. The author shall additionally identify and
establish the rather elusive, yet distinct link between the Myriad case and the
April, 2013 Novartis judgment (a timing coincidence that is only too
extraordinary to ignore), in order to create an unconventional connect with
Indias patent regulations and elaborate upon the universal judicial
understanding of what patent law entails. Finally, the author shall develop an
analysis under the TRIPS Agreement and make a comparison between the
WTO prescribed norms for patenting and those specified in the United States
Constitution and in the Patents (Amendment) Act, 2002 of India, which shall
provide external clarity on the matter. The enumerated three-pronged
patentability requirement under the TRIPS Agreement (the product must be
new, it must contain an inventive and innovative step, and it must be capable
of industrial application), shall be analyzed and its relation to the Patents
(Amendment) Act and to the US Constitutions own litmus test for
patentability(novelty, utility and non-obviousness) shall be discussed, which is
a relationship that is essential to address while discussing the Myriad case, as
it develops a discourse on patent laws not only within the US legal
framework, but also on an international scale, simultaneously culling out the
similarities seen in Indian law.
This 2013 matter marks a remarkable transformation and revolution in
the patent industry that is absolutely imperative to discuss and provide a
detailed analysis regarding. Several noteworthy events have taken place post
this Supreme Court decision that proves the significance of this ruling,
involving both market-based shifts and internal corporate strategies.
2015]
A GENE PATENTING BREAKTHROUGH
88
INTRODUCTION TO GENETIC PATENTS

A patent is a set of exclusive rights granted by a state to an inventor
for a specified and limited period of time in exchange for comprehensive
public disclosure of that novel invention. Patents come within the scope of
and are governed and regulated by intellectual property rights law. A
biological patent is a patent on an invention in the field of biology, which
protects the invention from being imitated, tested upon, made, used or sold by
anyone other than the patent holder for a certain period of time. Gene patents
specifically are those patents which have been acquired on the genetic
material of a living organism.
HISTORY OF GENETIC PATENTS IN THE USA

Scientists began patenting methods on their biotechnological
inventions with recombinant DNA for the first time in the 1970s. It wasnt
until 1980 that patents for living organisms were permitted. In 1980, Diamond
v. Chakrabarty232 upheld the first patent on a newly created living organism,
which was a bacterium for digesting crude oil in oil spills. The patent
examiner for the United States Patent and Trademark Office (USPTO) had
rejected the patent of a living organism, but Chakrabarty appealed and
managed to have this rejection obliterated by the Supreme Court. As a rule,
naturally occurring genetic material is generally rejected for patent approval
by the USPTO. The Court ruled that as long as the organism is truly manmade", such as through genetic engineering, then it is patentable.233 Because
the DNA of Chakrabarty's organism was modified, it was patentable. This
232
Diamond, Commissioner of Patents and Trademarks v. Chakrabarty, 447 U.S. 303

(Hereinafter, Diamond v. Chakrabarty).
233
The Supreme Court in Association for Molecular Pathology v. Myriad Genetics stated that
if anything is not specifically created by the inventor, it cannot be patented. Merely isolating
certain genes from their corresponding genetic material does not amount to creation of
something new, as the nucleotides located by the inventing company clearly existed in nature
before they found them. Thus, man-made would essentially imply something that is not
naturally occurring in its foundational essence, but has altered adequately by the inventor to
change its very form and purpose. However, this boundary remains blurry and the courts have
failed to successfully demarcate such a division between man-made and naturally occurring,
thus rendering the process of determination of such extremely subjective and fundamentally
unjust.
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landmark Supreme Court decision which overturned the U.S. Patent and
Trademark Offices prior decision not to issue patents on biological organisms
significantly influenced international patent law. For example, in 1982, in the
case of Pope Appliance Corp. v. Abitibi Power & Paper Co., Ltd.,234 the
Canadian Intellectual Property Office was forced to allow the patenting of
biological organisms and genes. By the early 1990s, enormous amounts of
both public and private funds were being invested in genetics research and
biotechnology development. The significant increase in health benefits, along
with the stimulation of great economic growth proved to be motivating factors
for weighty public investments.235 The rather liberal nature of the U.S. patent
policy and formal patent agreements such as the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), the General Agreement on
Trade and Tariffs (GATT), and the North American Free Trade Agreement
(NAFTA), have all had a major impact on international gene patenting.236In
developed and developing countries which are co signers to these agreements,
patents on genes are only issued once the subject to be patented has fulfilled
certain criteria and are proved to be new creations, or are isolated from nature
or cloned and are shown to have an individual function.237
In the late 1980s, genetically engineered plants and animals were
granted patents in the U.S. and the number of biological patents significantly
increased. Between 1981 and 1995, more than 1,175 human gene patents were
granted worldwide, and eventually, by 2000, there were 25,000 DNA-based
patents.238 There was a momentous increase in the number of start-up
234
Pope Alliance Corp. v. Abitibi Power & Power Co., Ltd., (1982) 62 C.P.R. (2d) 81 (Patent
Appeal Brd. & Commr. of Patents). Similar to Diamond v. Chakrabarty case, except Abitibi
dealt with patent of microbial culture used for sewage treatment.
235
J. Cohen, The Genomics Gamble, 275 (1997).
236
B.M. Knoppers, Biotechnology: Sovereignty and Sharing, in Caulfield T and WilliamsJones, eds., The Commercialization of Genetics Research: Ethical, Legal and Policy
Issues13(1990) (New York: Kluwer Academic/Plenum Press).
237
The invention must be thoroughly unique and innovative. It must be expedient or have
industrial application and use, and must be fully disclosed in the patent application. There
may be restrictions based on public morality.
238
Caulfield & E.R. Gold, Whistling in the Wind: Patents on Genetic Research are a Reality.
Its Time to Reframe the Debate, 15(1) Spring Forum for Applied Research and Public Policy,
75 (2000).
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90
biotechnology companies from 1,231 in 1992, to 1,456 in 2002. Revenues

more than doubled between 1993 and 1999, and tripled by 2001.239
Despite the apparent economic success of start-up biotechnology companies
in the U.S., very few of them remain competitive and profitable after a few
years, and even fewer remain in existence. The rest of the companies either
dissolve or are absorbed by large biotechnology and pharmaceutical
companies. Recently, there has been a convergence of markets and research
technologies in biotechnology companies, rather than solely focusing on
genetic research and experimentation.
Thus, biotechnology companies have been collaborating with
pharmaceutical companies in order to secure opportunities for finance and
sustained research and development.240 One such example would be Myriad
Genetics Inc. Myriad built its reputation and established it leading stance in
the competitive genome market through its discovery of the BRCA1 and
BRCA2 genes, which if mutated are responsible for causing breast and ovarian
cancer in females.
ECONOMIC AND ETHICAL DIMENSIONS OF GENE PATENTING

ECONOMIC DIMENSIONS
The grant and exploitation of gene patents have various possible
economic impacts. There is great discussion regarding the need to balance
keeping information and access to genetic data open in order to encourage the
distribution of research results with the commercial need to protect inventions
in order to create revenue from investments in research and development.241
There are various issues that come about due to this challenge. Firstly,
there is the issue of promoting innovation. Innovation creates new and
improved goods and services that meet social needs, thus benefiting the
239
Biotechnology Industry Organization, Biotechnology Industry Statistics, available at:

http://www.bio.org/er/statistics.asp (last accessed: March 13, 2015).
240
Ernst & Young, Convergence: The Biotechnology Industry Report (New York: Ernst &
Young, 2000),
Available at:
http://www.ey.com/global/download.nsf/Finland/Convergence_summary/$file/Convergence_
summary.pdf (last accessed January 13, 2015).
241
Organisation for Economic Co-operation and Development, Genetic Inventions, Intellectual
Property Rights and Licensing Practices: Evidence and Policies, 7 (2002).
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community. Patents promote innovation through the grant of limited

monopolies over the exploitation of new products and processes. These
limited monopolies encourage investment in developing new inventions by
assuring the investor extra opportunity to recover financial expenses.242
Without the incentive provided by patents, private investors may hesitate to
invest, resulting in greater reliance upon government funding or a failure to
cultivate new technology. Patents encourage innovation by rewarding
researchers and inventors for the time, effort and originality invested in
developing new products and processes. There is also great potential for
financial returns, which adds an incentive to the traditional rewards like
academic recognition and promotion within research institutions.
Patents may also benefit companies by providing a system for trading
knowledge internationally through licence agreements. The grant of licences
to international companies to exploit locally developed inventions provides
returns to inventors and access to foreign markets. The grant of these licences
to companies in a specified country to manufacture inventions developed
overseas can improve the skill and know-how available within that country.243
However, patents do not always remunerate innovation and research
investment even handedly. In most jurisdictions, including the USA, if two
researchers independently create the same invention, only the first to apply for
patent protection will receive a patent over that invention. This may
discourage some researchers from engaging in research that is already being
pursued somewhere else, despite the possibility that they may develop better
technology or more efficient work.
242
For example, with respect to healthcare, the Walter and Eliza Hall Institute of Medical
Research stated that not granting patents, along with allowing and mandating disclosure of
discoveries, would make the IP undesirable to a company as it would have to invest heavily in
further research with no protection from competitors using the invention and underselling
them because they do not have to recover extensive research and development costs. The
result could be no further innovative development of the potential health care product by
anyone.
243
Australian Law Reform Commission, Gene Patenting and Human Health, available at:
http://www.austlii.edu.au/au/other/alrc/publications/dp/68/03.html#heading1 (last accessed on
January 1, 2015).
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92
Then, we observe the matter of investment and economic growth.

Holding a patent may help a company to grow by using it to attract financial
backing and aid it in negotiations for funding and support from venture
capitalists and manufacturers. Further, patents may stimulate the growth of
national industry because local companies that hold patents can attract
overseas investment and develop products for export.244 Profits generated by
patent usage can be invested in further research and development, which may
stimulate industrial and economic growth.
However, patents may also have detrimental economic effects. Granting
of a patent creates a sort of monopoly on certain research, which allows the
patent holder to charge a higher price than he would if there was competition
with regard to the invention in question. The operation costs involved in
seeking a patent grant and enforcing patent rights are quite high. Fees must be
paid before a patent application will be examined, and to maintain patent
rights once granted. Infringement claims, such as asserting patent rights or
challenging those of a competitor, may need to be pursued through courts, and
this will be costly and time consuming.
Analysing from a global perspective, patent systems may have adverse
consequences for countries that are importers of intellectual property.
Expenditure on license fees or royalties for the use of patents owned by
foreign entities may exceed the income earned by foreign entities for the use
of inventions patented by local companies.245
Another economic aspect of patents is that they endorse knowledge
sharing by requiring the details of the patented invention to be available to the
public in return for the exclusive right to exploit the invention. If this
exchange were not present, inventors might protect the details of new
inventions through secrecy. These requirements are based on the idea that
scientific and technical openness benefits the progress of society more than
244
P Drahos, Biotechnology Patents, Markets and Morality, 21 European Intellectual Property

Review 441, 445 (1999).
245
D Nicol and J Nielsen, The Australian Medical Biotechnology Industry and Access to
Intellectual Property: Issues for Patent Law Development, 23 Sydney Law Review 347, 362
363 (2001).
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confidentiality and secrecy.246 By encouraging this knowledge sharing, patents

encourage researchers to build on existing inventions rather than duplicate
existing research. Researchers may study a patented product and find ways to
improve upon and further develop it. This may facilitate research that would
not be possible, had this research information not been available publicly, and
been kept to inventor, himself.247 However, patents may also constrain
research, as an inventor is not likely to disclose any research information until
he is in a relatively comfortable position to apply for and obtain a patent on
the product that is developed enough and at patentable stage.248
Gene patents also raise issues about access to and ownership of research
results. Granting patents to private organisations or individuals could be said
to motivate research as researchers race to develop something new and be the
first to patent this new technology. However, private control of new
technology may have unwanted ethical and social implications for healthcare
provisions through limited access to tests, therapies or drugs, due to exorbitant
pricing and monopoly control.
ETHICAL DIMENSIONS
Ethical concerns about gene patenting can be divided into two broad
categoriesethical objections to granting patents on genes and genetic
material, and ethical concerns about the exploitation of gene patents.
When gene patents were a relatively new phenomenon, ethical concerns
focused mainly on whether it was acceptable to patent human genetic
materials. These are no longer as prominent today. This may be due to the fact
that many such patents have been issued in various countries, like Australia,
and the practice of patenting isolated human genetic materials appears to be
more widely accepted. Ethical concerns now tend to focus more on the
exploitation of gene patents. Such concerns include those about sharing the
246
J Goldstein and E Golod, Human Gene Patents, 77 Academic Medicine 1315, 1315 (2002).
For example, access to a patented research tool may enable vital research into the causes of
a genetic disorder and lead to the creation of a genetic test or treatment. This research may not
have occurred if the tool had remained secret.
248
D. Dickson, UK Clinical Geneticists Ask for Ban on the Patenting of Human Gene,
366 Nature 391, 391(1993). The disclosure of an invention may render patent protection
unavailable: see Ch. 5 and 6.
247
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94
benefits of genetic research, consent to the use of genetic material in research

that leads to commercial outcomes and ethnic issues.249
There are several reasons why critics of gene patents believe that such
patents are ethically wrong. Firstly, they believe that the human genome is the
common heritage of humanity, and that gene patents violate this belief by
granting exclusive rights over particular sequences to specified people. 250 The
human genome and the information it contains should not be regarded as a
commodity to be owned, reserved and sold off for profit making purposes.251
Hence, critics pray for fair distribution of the benefits of genetic research.
Another objection to gene patents is that they may stimulate a lack of
respect for human life and dignity.252 Critics of gene patenting253 believe that
such patents are thought to commodify parts of human beings by treating them
as objects, thus affecting how we value human life, and that genetic materials
have a unique significance, which requires them to be treated with special
respect.254 These protests rely on the principle of respect for persons and
promotion of individual autonomy, which gene patents are said to violate.
It has also been argued that patents over genetic materials are fail to respect an
individuals self-determination because they grant ownership rights over
genetic material and, consequently over parts of human beings, to someone
other than the person from whom the genetic material was taken.255 Thus, we
observe that self-determination, which is the right to make ones own choices
about how to live, is fundamentally linked to self-ownership, which is the
right to choose how ones body is used. Principles of patent law state that
249
Australian Law Commission, Supra, n. 11.

The human genome is often described as the common heritage of humanity, a view that has
been supported by the Human Genome Organisations (HUGO) Ethics Committee and by the
United Nations Educational, Scientific and Cultural Organization (UNESCO).
251
New South Wales Health Department, Submission P37 (October 17, 2003).
252
D Resnik, The Morality of Human Gene Patents, 7 Kennedy Institute of Ethics Journal 43,
55 57 (1997).
253
Such commodification arguments have been further criticized by saying treating parts of
humans as objects does not necessarily mean human beings as a whole are treated as objects.
Also, the widespread grant of patents has not led to a change in how human beings are
perceived and treated.
254
N Holtug, Creating and Patenting New Life Formsin P Singer and H Kuhse (eds), A
Companion to Bioethics 206, 213 (1998).
255
N Hildyard and S Sexton, No Patents on Life, 15 Forum For Applied Research and Public
Policy 69 (2000).
250
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because genomic DNA is a naturally occurring substance, it is not patentable.

But, thousands of patents have been granted on DNA sequences that are the
same as their natural form. These patents effectively confer ownership rights
because they allow these sequences to be analysed, sold, and licensed, and
they prevent others from doing so. The effect is that gene patents deprive
individuals of their natural ownership of their genetic material.256
Patents on genetic materials are sometimes criticised on religious
grounds. Some religions claim that human worth, including the genetic basis
for life, derives from the divine aspect of creation. Religious critics argue that
genetic patents bestow proprietorship of the foundation of life upon someone
other than God,257 suggesting that human worth derives from something manmade or manipulated, rather than divine creation.258
MYRIAD CASE STUDY

Case facts and Summary of Arguments
In the case of Association for Molecular Pathology v. Myriad
Genetics,259the Petitioners along with several other medical associations,
doctors and patients sued the United States Patent and Trademark Office
(USPTO) and Myriad Genetics to challenge various patents related to human
genetics. The patents covered the BRCA1 and BRCA2 genes which are
responsible for creating a high risk of developing breast cancer if mutated in a
particular way, and which Myriad managed to discover identify the location of
on chromosomes 17 and 13. This discovery enabled Myriad to develop
medical tests that could detect the presence of mutations in these genes that
were responsible for causing cancer. The suit also challenged several patents
over diagnostic screening for the genes. Myriad argued that once a gene is
isolated, and thus distinguishable from other genes, it could be patented.
Through these patented genes, Myriad had exclusive control over diagnostic
256
Royal College of Pathologists of Australasia, Submission P26, 1 October 2003.

In 1998, Bruce Lehman, then United States Patent Commissioner responded to such
objections by saying researchers and organisations were not patenting life, only technology.
258
Danish Council of Ethics, Patenting Human Genes 32 (1994).
259
Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 12-398 (Hereinafter,
Myriad).
257
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96
testing and further scientific research with respect to the BRCA genes. The
Petitioners argued that patenting those genes violated Section 101 the Patent
Act260 because they were products of nature, and that the patents limit
scientific progress. Section 101 limits patents to any new and useful process,
machine, manufacture, or composition of matter, or any new and useful
improvement thereof.261
The District Court produced a judgment in favor of the Petitioners,
holding that isolating a gene does not alter its naturally occurring fundamental
qualities. The U.S. Court of Appeals for the Federal Circuit reversed the
judgment of the district court and favoured the Defendants, holding that
isolated genes are chemically distinct from their natural state in the human
body. In March 2012, upon further appeal, the U.S. Supreme Court removed
the Federal Circuit judgment and in light of Mayo Collective Services v.
Prometheus Laboratories,262 remanded for further consideration.263 However,
the Federal Circuit again upheld the patentability of the BRCA genes.264
Eventually, a second appeal was made to the Supreme Court, where it
produced its own judgment in favour of the Petitioners on June 13, 2013,
stating that merely isolating a gene from a DNA sequence does not create a
new product capable of patentability, no matter how much cost and effort was
invested into the procedure. It held that simply proving that isolating the gene
was a tedious and costly effort, and that it was a groundbreaking and brilliant
discovery does not satisfy the patentability test. For any product to be patentworthy, it must be unique, useful for industrial purposes, intended to carry out
a particular function, and completely man-made, rather than being a product
of nature. The Supreme Court believed that merely isolating a gene does not
260
Section 101, Patents Act, 1970, U.S.C.

Id.
262
Mayo Collective Services v. Prometheus Laboratories, 566 U.S. (2012).
263
Prometheus Laboratories Inc. patented steps of testing for proper dosages of drug
treatments used to treat gastrointestinal diseases like Crohn's disease, and sued the Mayo
Clinic when it attempted to use its own, similar test. A federal judge invalidated the patents,
holding that the patent couldn't cover the body's reaction to drugs. The U.S. Court of Appeals
for the Federal Circuit, which specializes in patent issues, overturned the lower court order.
264
Oyez IIT Chicago-Kent College of Law, Association for Molecular Pathology v. Myriad
Genetics, available at:
http://www.oyez.org/cases/2010-2019/2012/2012_12_398 (last accessed March 17, 2015).
261
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bequeath to it man-made properties. It remains a product of nature, which

cannot be claimed and owned by any person. However, Myriad had created a
complementary DNA (cDNA) out of the BRCA1 and BRCA2 genes by
developing clones and implementing certain research upon them, which was
allowed to retain whatever patents Myriad had exercised upon them, given
that they were chemically different from the naturally occurring genes and
were man-made, rather than a mere product of nature. The cDNA, though
retaining certain naturally occurring components, was distinct from the DNA
from which it was derived. Hence, patents on such could be retained. The
Obama administration and the American Civil Liberties Union support the
Supreme Courts view, as do the groups of cancer patients and geneticists who
brought the suit against Myriad.265
Finally, this Supreme Court decision has managed to invalidate several
thousands of gene patents that had been granted on a similar basis,266 and has
ultimately changed the very course of the genome research industry.
Myriad made fifteen different claims about the isolation of the BRCA1
and BRCA2 genes. The scope of an inventors monopoly rights is dependent
upon the claims that are made in obtaining the patent. Myriads patents claim
exclusive control over the genes once they have been removed from the
human cells. These claims were subject to a great deal of challenging in the
over four year long trial process.
The lawsuit was filed by four national organizations of doctors,
researchers, clinicians, and other health professionals, along with six leading
geneticists, two genetic counsellors, two womens health and breast cancer
organizations, and six patients who have either been diagnosed with or are at
risk of a hereditary breast or ovarian cancer.267 These petitioners allege that
Art Jahnke, What the Supreme Courts Gene Decision Means to Research, available at:
http://www.bu.edu/today/2013/what-the-supreme-court-gene-decision-means-to-research/
266
Colorado State University, Study assesses impact of US Supreme Court decision on gene
patents: Finds about 8,000 US patents likely affected, available at: http://phys.org/news/201306-impact-supreme-court-decision-gene.html (last accessed on March 24, 2015).
267
Lyle Denniston, The Human Genes Case: Made Simple,
available at: http://www.scotusblog.com/2013/02/the-human-genes-case-made-simple/
(last accessed on January 8, 2015).
265
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Myriads claims are merely an attempt to create a monopoly over natural

phenomena, as the isolated genes are not altered in any way from their nature
when in the body. They also contended that Myriads claims are so broad that
they include every single natural variation of the two genes, including those
that have not yet been isolated.268 The lawsuit also stated that Myriad had
used its patent protection to prevent any other scientific research on them and
to preclude patients from accessing their own genetic information.
Myriad defended its patents by claiming that isolating genetic codes
from DNA is a product of human ingenuity that is unique, with a distinctive
name, character, and use. Further, it disputed that the U.S. Patent Office has
been issuing similar patents on such processes and genetic sequence
extractions since 1984.269 After finding the location of the BRCA genes,
Myriad sought and obtained a number of patents. Nine composition claims
from three of those patents are dealt with in this case. The first claim of the
282 patent claims270 asserts a patent claim on the DNA code that tells a cell to
produce the string of BRCA1 amino acids. The second claim and explains the
particulars of the cDNA sequence that codes for the BRCA1 amino acids listed
in their first claim, thus distinguishing the cDNA from natural DNA for
patentability purposes, which the Federal Circuit recognized. Claim 5 of the
282 patent claims something that can be represented as a subset of the data in
claim 1. It claims a patent on any series of 15 nucleotides that exist in the
typical BRCA1 gene. Claim 6 similarly assets that an isolated DNA having at
least 15 nucleotides of the DNA of claim 2 should also be granted a patent.
Observations from the Supreme Court Decision
Firstly, we observe that a limited class of genes is now not patentable.
Thus, naturally occurring genes, including genes isolated from nature, are now
no longer patentable in the US. However, the decision is not a ban on all gene
patents. A gene patent application that covers a nucleic acid that is chemically
distinct from a naturally occurring gene is still permissible, and a patent on
268
Myriad, p. 14, para 2.

Myriad, p. 13, para 1.
270
Section 282, 35 U.S. Code. Available at: https://www.law.cornell.edu/uscode/text/35/282
269
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such an application is still valid and enforceable. A cDNA is one example of a

chemically distinct class. Other examples of patentable genetic materials
might include derivatives of naturally occurring genes such as fusions,
fragments, mutations or constructs that do not occur in nature. Further, any
research, genetic testing and diagnostic patents on these non-naturally
occurring versions of genes will be completely valid. Further, therapeutic
patents based on gene technology are unaffected. Most of the relevant patents
and patent applications contain claims directed to genes that encode
substances not found in nature. So these patents and patent applications are
unaffected by this decision. Also, patents and patent applications on living
organisms, tissues and cells remain permissible. Finally, this decision is
limited to those with business interests in the US. The US is often regarded as
the most significant market for biotechnology companies. However, it remains
imperative that were cognise that the decision does not apply in other major
markets such as Europe, and emerging markets in Asia.271
An interesting, yet neglected fact of this case is that Supreme Court
only considered Myriads composition claims for the isolated DNA sequences
and cDNA. But, the original lawsuit also challenged a screening method claim
and 11 method claims covering methods of analyzing and comparing a
patients BRCA sequence with the normal sequence to detect the existence of
cancer-causing mutations. Those claims were not presented and addressed in
the high court, so the Federal Circuits earlier rulings on their validity stand.
The Federal Circuit was of the view that the methods for analyzing and
comparing two gene sequences to ascertain mutations were not patentable
because they were merely mental processes, which is classified under the
category of unpatentable natural laws. However, the court finally declared that
the method for screening potential cancer patients by identifying changes in
cell growth rates was patentable. They found that the method applies certain
Tom Gumley, US Supreme Court Decision On Myriads Gene Patent Implications For
Australian Patent Applicants, available at: http://www.jdsupra.com/legalnews/us-supremecourt-decision-on-myriads-ge-78063/ (last accessed March 24, 2015).
271
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100
steps of detection to a non-naturally occurring transformed cell and the

transformed, man-made nature of that cell made the claim patentable.272
Consequences of the Myriad Decision
The direct effect of this decision on academic research may not be
prodigious, as many biotech patent owners decline to enforce their patents
against academics, or offer royalty-free licenses. There might be a substantial
incidental effect, though. Now that gene patents have been declared as invalid,
there will be more secrecy and less sharing of information and materials with
respect to ongoing research on the patented gene. Thus, commercial firms
may are more dependent on secrecy to protect gene discoveries. Also,
commercial firms may accelerate development of genetic tests that might still
be patentable.273 So, this may lead to a noteworthy progression in other fields
which may still involve genetic research and development. This explains why
Myriad returned to the courtroom a few short months after the Supreme Court
decision in order to challenge various companies for using genetic research
which was still technically patentable, which shall be discussed later in this
paper. The effect of this decision on physicians and patients may also be
predicted. There will certainly be easier access to efficient research and testing
for the physicians, and the costs of testing for BRCA1 and BRCA2 mutations
are likely to be lower, now that anyone is capable of using identical methods
of testing. Perhaps the quality of the testing will improve in response to
competition. People will perhaps be motivated to improve the available testing
methods, and develop better, more economical, more innovative procedures.
However, this advantage does seem to come with its own drawbacks. One
may say that pharmaceutical companies and researchers will be encouraged to
develop more efficient methods of testing for these cancer instigating genes,
but what is the extent of their incentives and innovation? Competition
encourages this innovation, but at the same time, it is the very thing that
disheartens it. A companys origination may be hindered by the persistent fear
272
Patterson Thuente, Ideas on Intellectual Property Law, available at:

http://www.ptslaw.com/newsletters/IIPON13.pdf (last accessed on March 18, 2015).
273
D. Dickinson, Supra note 16.
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that such methods of testing can never truly be patentable and made their own.
Hence, whatever modern techniques they manage to invent will always be
available to the public and other competitors. They may see no point in
investing so much time and money in modernism and origination, when it
may inevitably be pointless and not as profitable as one would hope. Thus,
this decision could ultimately hinder the development of life-saving therapies,
simply because companies are unwilling to take the financial risk to pursue
them. However, a clear benefit that arises out of this Supreme Court decision
with no respective antonym would be the gain in the level of access to breast
cancer testing that will be available to women, and at significantly lower rates.
Now that Myriad will not be able to act as a monopoly with respect to BRCA1
and BRCA2 testing, other companies will be able to offer testing
opportunities, and due to the rise in competition following this decision, the
prices at which women will have to pay for this testing would be far more
reasonable, due to competitive pricing strategies adopted by these companies.
Further, this decision could possibly save the lives of thousands of more
women, now that testing is expressively more affordable and not offered at the
unreasonably high rates that Myriad as a monopoly over all genetic testing
would have presented it at. Before the judgment was passed, there were
constant complaints by doctors and patients that Myriads high-priced tests
have limited access for many women. The tests can cost up to $3,500 per test,
although a statement on Myriad's website says the company offers a financial
assistance program for low-income or uninsured women.274 As a monopoly,
only Myriad could perform the tests, and it would store and retain any data it
gains from tests results, such as geographic and demographic patterns, or new
genetic variants it may find. It had stopped sharing its data publicly, keeping it
as its own trade secret so nobody else can use it to conduct research or
develop therapies or tests. Thus, even though they did not possess patents on
this data, they would essentially control the marketplace. Such control could
274
Brian Alexander, Supreme Court Gene Patent Decision Could Affect Every Patient,
available at:
http://www.nbcnews.com/health/supreme-court-gene-patent-decision-could-affect-everypatient-1C9345889 (last accessed on March 25, 2015).
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keep costs high for patients and insurers, and strangle competing research. For
example, when new BRCA-related variants were uncovered, Myriad didnt
include them in its standard BRCA testing. Instead, it created additional test,
called BART, available at an extra charge of $700, to cover these
mutations. So, if a woman wanted to cover all the BRCA bases, her doctor
would have to order both tests.275 Now that Myriad is forced to reveal its
research to competitors, the promise of personalized medicine is sustained.
Doctors can now conveniently order the sequence of each persons genome to
look for disease-related gene variations without big parts of the genome being
sheltered under patent protection.276 This is how competition and access to
breast cancer testing increases, thus saving the lives of innumerable women
who would not previously have been able to obtain such testing. This decision
resulted in further arguments arising between Myriad and their competitors.
The same day the judgment was passed; five laboratories announced that they
would be offering BRCA testing to patients. In an attempt to retain its
monopoly, Myriad decided to take legal action against some of the new
competitors based on patent claims that were not specified in the Supreme
Court judgment, but should be considered invalid under existing law and
precedent. Myriad appeared before the Federal Court in Utah requesting them
to prevent Ambry Genetics, one of their new competitors, from providing
BRCA testing. Thus, the ALCU, the Association for Molecular Pathology,
Breast Cancer Action, and the Public Patent Foundation filed an amicus brief
against Myriad in order to oppose Myriads motion for a preliminary
injunction. They argued that Myriad was seeking exclusive rights to laws of
nature and that a continued monopoly over relevant genetic materials would
be against public interest, as it limits patients options for testing and stands in
275
Id.
For example, consider the case of muscular dystrophy, which is a genetic disorder that
weakens the bodys muscles. Many patents have been issued relating to mutations in the
dystrophin gene. If a parent were to have a young childs genome sequenced, the doctor may
not able to reveal any important results relating to the dystrophin gene, as the right to do that
belongs only to the companies or individuals who control the intellectual property. The
doctor, or the genome sequencing company, could be sued for communicating any
information on the subject.
276
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the way of research and development. The Federal Court in Utah rejected
Myriads motion, as it found substantial questions regarding the fact that
Myriads patent claims indecorously monopolized genetic materials and laws
of nature.277 The biotechnology journal and informational media website,
FierceBiotech, reported the following:
Despite the shrill alarms that have been sounded over the case,
there's widespread feeling that the ruling itself won't have a dramatic
impact on biotechnology. Myriad has a well-established position in
the market at this point, and has been improving the quality of its test.
And just because others can use the same sequences without fear of
violating patents, it's unlikely that there will be a rush to offer
competing tests given the expense and technology required to develop
them.278
But the above prediction was soon disproved. On, July 9th and 10th,
2013, Myriad Genetics filed patent infringement suits against two similar
genetic diagnostic companies, Ambry Genetics and Gene by Gene,
respectively, in the District Court of Utah. Both these companies were
engaging in the BRCA1 and BRCA2 testing that had been declared open and
not patentable in the April, 2013 Supreme Court decision. Myriad had
asserted that there were still about 500 different claims in 24 different patents
that were still validly patentable with respect to the BRCA genes testing.
Myriad had asked for a preliminary injunction against both of these
companies.279 Almost immediately after the Supreme Courts decision, both
Ambry and Gene by Gene announced the introduction of their BRCA 1 and
BRCA2 tests. Myriads complaints against these two companies were similar.
Myriad claimed that the defendants tests will infringe a number of the other
valid claims in ten different patents that were left with them after the Supreme
Sandra Park, Myriad Genetics Latest Attempt to Maintain its Monopoly on Our Genes
Rejected, available at: http://www.huffingtonpost.com/sandra-park/myriad-genetics-latestat_b_4949641.html (last accessed on March 15, 2015).
278
Donald Zuhn, Reaction to Supreme Courts Decision in AMP v. Myriad, available at:
http://www.patentdocs.org/2013/07/reaction-to-supreme-courts-decision-in-amp-vmyriad.html (last accesses July 1, 2013).
279
Univ. of Utah Res. Foundation et al. v. Ambry Genetics Corp.
277
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Court decision. Some of these existing patents were; cDNA, DNA primers,
methods for screening mutations and diagnosing patients, etc.280This
preliminary injunction could be seen as a valid request considering the fact
that the claims made could possibly cover aspects of genetic research and
testing that the defendants could certainly touch upon during the pendency of
their testing processes.
Perhaps we must ask ourselves why these two companies suddenly
decided to move into the market. They must have been aware that Myriad has
other patents that would possibly be infringed testing activities. The answer
lies somewhere along the lines of the fact that they believed that if they
showed some willingness to fight, Myriad would eventually settle offer to
license its patents to Ambry on acceptable terms, and the fact that they believe
Myriads patents are vulnerable and that Myriad is prepared to spend a great
deal money to prove otherwise.281
Thus the next question we seek to answer is why Myriad sued these
companies. The obvious answer is to inform the market and all competitors
that it is clearly not ready to concede its patent-based monopoly on BRCA
testing and that they will find ways to enforce related claims and keep their
techniques within their company. And these two small companies, who made
immediate entries into the market post the Supreme Court decision, carved
themselves out as vulnerable and ideal targets, with possible insufficient
defences or probably quick acceptance of terms favourable to Myriad.
The problematic consequences that arise for Myriad through these
subsequent suits is the negative impact on public relations and image, as the
company will be seen as the entity forever attempting to establish and
maintain its unfair monopolistic control over breast cancer testing; something
that should ordinarily be readily available to all people. Further, a very real
280
Dennis Crouch, Federal Circuit: Next Round of Myriad Patent Claims Are Also Invalid,
available at:
http://patentlyo.com/patent/2014/12/federal-circuit-invalid.html (December 17, 2014).
281
John Conley, District Court Denies Myriads Preliminary Injunction Against Ambry,
available at:
http://www.genomicslawreport.com/index.php/2014/03/18/district-court-denies-myriadspreliminary-injunction-against-ambry/, (last accessed March 18, 2014).
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danger that approaches with such suits is in the vulnerable patent claims made
by Myriad which are likely to attract invalidation, including cDNA claims.282
But faced with the choice of either putting their patents at risk by suing or
having their rights ignored, the best option was probably to take the risk and
protect their market position.
In February 2014, Gene by Gene decided to reach a settlement with
Myriad, whereby Gene by Gene would cease to sell or market BRCA gene
tests as standalone tests or as part of a wider panel in the U.S. But, this
settlement was reached owing more to their lack of financial resources to
continue to court battle, and less to the actual merits of the case.
On March 10, 2014, the federal court ruled in favour of Ambry Genetics
and against Myriad regarding their request for a preliminary injunction against
Ambry, holding that the primers being argued for are indistinguishable
from the isolated DNA which was declared patent-ineligible by the Supreme
Court, and are in fact, not similar to the cDNA that was found to be patenteligible. Further, with regards to the screening methods claim, the court held
that such comparisons are directed to the patent-ineligible idea of
comparing BRCA sequences and determining the presence of modifications.
Also, nothing is actually added by identifying the techniques to be used in
making these comparisons, as the techniques were the well-known and
universally understood. They were routine and conventional techniques that a
scientist would have thought of when instructed to compare two gene
sequences on his own anyway, and are not techniques specific to the
specialized knowledge of Myriad. Myriad can continue suing competitors, but
until a final ruling or settlement is made regarding the patentability status of
the other possible claims that exist for Myriad, competing laboratories may
continue to offer BRCA testing. Subsequently, Myriad appealed, and on
December 17, 2014 the U.S. Appeals Court upheld the trial courts decision to
allow competing tests to remain on the market and reiterated that the patents
282
Id.
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on the BRCA tests never should have been issued.283 Thus, the injunction was
not allowed, but the actual patentability of these remaining claims was not
determined. This grey area that exists is indeed problematic, as it allows
Myriad to continue to attempt their techniques, while allowing competing
companies to utilize these same techniques. A final and concrete decision is
yet to be reached on these subject matters. But until then, we can merely
observe the consequences that are in play post this revolutionary decision.
PATENTS OR TRADE SECRETS?

Intellectual property law provides two methods for companies and
inventors to protect their products. They may either do so by patenting them,
or by restricting public disclosure of any vital information containing business
value about the product under trade secret protection regime. After the
previous sections discussion on the consequences of the Myriad decision, it is
essential to evaluate the option of confidentiality under the trade secret regime
vis--vis disclosure under the patent regime.
In the search for the solution to the dilemma of patenting a product or keeping
its information a secret, there is a six step procedure that is normally
followed.284
These steps include:
a) One must determine whether there is any legal condition necessitating
public disclosure. For example, under FDA regulations, pharmaceutical
companies, much like Myriad, must describe in detail the drugs they are
marketing for the benefit of and protection of public interests.
b) Is it easy for another group of people to rediscover the invention? If so,
how long would this take? If it is easy to rediscover such an invention
quickly, patent protection would be recommended.
c) Next, one must evaluate the speed at which technological advancements
are occurring in the field the product is presented in. If it is rapid, it is
283
Id.
David Miller, A General Approach For Determining When To Patent, Publish, Or Protect
Information As A Trade Secret, available at:
http://www.swisswuff.ch/downloads/IPapproaches.pdf (last accessed on March 17, 2015).
284
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advised to market the invention as soon as possible and build other

barriers to entry with the help of a patent. Competition is fierce in the
pharmaceutical market, and Myriad was clearly faced with societal and
competitive pressure, thus demanding the establishment of a patent for
their discovery (though the mere discovery of breast cancer causal genes
was not technically an invention, as ruled by the Supreme Court).
d) The inventor is required to ascertain whether the invention presents a
brand new area of technology. If so, patenting will help to monopolize the
market for such a product, which is similar to what Myriad had aimed to
do by patenting the BRCA1 and BRCA2 genes, owing to its significant
germaneness in the field of medicine and breast cancer deduction.
e) Then, the inventor must decide whether he wants others to access his
invention. If yes, he must allow for a formal licensing agreement.
Licensing to third parties may provide additional revenue to the patent
holder, while licensing trade secrets could risk unauthorized disclosure to
third parties. Obviously, Myriad wanted female patients to be able to
access their tests on their novel discovered genes. Hence, they may have
rendered it essential adopt a formal licensing agreement.
f) Finally, the most important step is to assess the potential market revenue
arising out of the product and seeing if it outweighs patent and associated
costs. Such costs include patent filing costs, which may extend to $15,000
in the US and associated corresponding and litigation costs. So, if
expected market revenues are lower than these legal costs, the smartest
decision would be to simply publish the materials in a respectable journal
as a form of defensive publication (as it associates the inventors name
with the invention). This is a rather cheap and efficient method of securing
market brand and preventing competitors from claiming the invention.
Now, evaluating the advantages and disadvantages of confidentiality
that may influence the decision to patent is something that ought to be
observed. There are various advantages of trade secrets. Firstly, it has the
advantage of not being limited in time as long as the secret is not revealed to
the public, while patents tend to last for approximately 20 years. Secondly,
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108
trade secrets encompass no registration costs (though there may be high costs
related to keeping the information confidential). Thirdly, trade secrets have
immediate effect. Fourthly, trade secret protection does not require the
inventor to disclose any information to a Government authority. However,
there are some disadvantages of such confidentiality, especially when the
information meets the criteria for patentability. Firstly, if the secret was with
respect to an innovative product, others may still be able to examine it,
dichotomize it and analyze it and discover the secret and thereafter use it for
their own benefits. Trade secret protection of an invention does not provide
the inventor with the sole and exclusive right to exclude third parties from
making commercial use of his product or any product similar to his product.
And that person may later patent that similar product he has managed to create
utilising the innovation and ideas behind the trade secrets that were trying to
be upheld. Only patents can provide this type of protection. Secondly, once
the secret let out (perhaps through improper planning and protection, or by an
insider secretly working for another companys benefit), anyone may have
access to it and use it at will. Thirdly, a trade secret is more difficult to enforce
than a patent. The level of protection granted to trade secret is generally
considered weak, especially when compared to a patent.285
LINK BETWEEN MYRIAD AND NOVARTIS

On 1stApril 2013, the Supreme Court of India in Novartis A.G. v.
Union of India286 rejected a patent application for a cancer saving drug as
coming within the folds of Section 3(d) of the Patents Act, 1970.287
Approximately two and a half months later the United States Supreme Court
rejected the credibility of the BRCA1 and BRCA2 patents, owing to the
naturally occurring nature of the subject patented. Despite the obvious
difference between these two cases, there are certain similarities that can be
seen when viewed closely, like; the context of their agitation, the limits they
285
WIPO, Patents of Trade Secrets?, available at:

http://www.wipo.int/sme/en/ip_business/trade_secrets/patent_trade.htm
286
Novartis A.G. v. Union of India, AIR 2013 SC 1311.
287
Supra note 28, sction 3.
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place on patent eligibility standards and the extensive social consequences

these cases hold for public health and access to medical treatment issues.288
Both these cases are rather different from the traditional patent litigation
that one may observe. Instead, at all levels of their agitation, crucial
intervention and contribution has been made by various patient groups, civil
society organizations and academicians. With respect to Novartis, cancer
patient groups were represented by Mr. Anand Grover, who spoke many
things regarding the interpretation of Section 3(d) and the exact scope of
enhanced therapeutic efficacy. He contended that merely ensuring that a
novel variety of a drug is more available in the body or is less toxic, should
not make it patent eligible. Prof Shamnad Basheer, representing Novartis,
argued that in certain cases, significantly reduced toxicity should be
considered as enhanced therapeutic efficacy.
These arguments managed to help the court understand the mode in
which Section 3(d) was intended to function and which circumstances it
should apply to. In Myriad too, important briefs were filed by civil and
womens rights organizations stressing important issues with regard to access
to medicine at stake in this case.289 In the case of Myriad Genetics, the
petitioner endeavoured to claim a patent over a naturally occurring gene
sequence, as well as prevent other competitors from testing for such gene
sequences. Acknowledging the fact that the gene sequences under
consideration were known to increase the chance of breast and ovarian cancer,
Myriad was essentially trying to monopolize breast cancer testing, which
significantly limits the access to such testing, thus adding multiple folds to the
risk of women developing breast cancer.
288
SmaranShetty, Novartis and Myriad: A Surprisingly Similar Tale of Access to Medicine

and limits on Patent Eligibility, available at: http://spicyip.com/2013/07/guest-post-novartisand-myriad.html (last accessed on January 8, 2015).
289
Lyle Denniston, Association for Molecular Pathology v. Myriad Genetics Inc., available at:
http://www.scotusblog.com/case-files/cases/association-for-molecular-pathology-v-myriadgenetics-inc/?wpmp_switcher=desktop (last accessed on January 7, 2015).
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110
Whats more, it has been seen that the inventors of the BRCA1 and BRCA2
genes are delighted with the Supreme Court decision.290 Together, all these
factors display the rather unfair nature that patents carry with them in terms of
opportunities for exploitation by the patent holders, and everyone is aware of
it. In the case of Novartis, a patent was being demanded for a slight alteration
in Glivec, a cancer saving drug, and would cost several times more money
than drugs that would have been produced by common productions if a patent
were not granted. Although, the pricing of a drug alone cannot be a ground of
patent eligibility, it manages to display another instance of the unfortunate
reality that patents carry a great deal of exploitative properties when the three
fold criteria of patent eligibility, which are; novelty, the nature of being and
inventive step and the industrial application of such an invention, are not
applied in a cautious manner.291
The most interesting similarity between Novartis and Myriad is their
ability to create definite limits on patent eligibility. In Myriad, the court had to
interpret Section 101, which has no particular restrictions on patent eligibility,
using judicial precedent such as Diamond v. Chakrabarty,292 which held that
laws of nature, abstract phenomenon and naturally occurring substances were
not patent eligible. Thus, relying on Chakrabarty, the court in Myriad
concluded that an innovative, groundbreaking or even brilliant discovery by
itself does not satisfy the requisites of section 101. In Novartis, the Indian
Supreme Court had to decide whether the claimed drug was an invention
within Section 2(j) of the Act, and if so, whether it would be excluded from
patent protection in view of Section 3(d). The court held that even if a drug
manages to fulfil the narrow purpose of Section 2(j), it may not necessarily
satisfy the requirements of Section 3(d), as the appellants had been unable to
clearly prove how the new version was a significant improvement over the
known versions of the same drug.
290
Sara Reardon, I Discovered The BRCA1 Gene, available at:

http://www.slate.com/articles/health_and_science/new_scientist/2013/06/brca_gene_discover
y_mary_claire_king_says_the_supreme_court_is_right_not.html?utm_source=feedly
(last accessed on January 8, 2015).
291
Smaran, Supra note45.
292
Diamond v. Chakrabarty.
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Both Novartis and Myriad also correctly stress the need to treat the
three fold criteria of patent eligibility as merely the beginning of patent
eligibility and not a conclusive determination of the same. This helps
countries to develop and follow patent law systems where exclusionary
principles for patent eligibility may reflect the social and economic needs of
the citizens. This analysis is only meant to identify the ways in which Novartis
and Myriad are similar and not to prove that they are identical.
ANALYSIS UNDER THE TRIPS AGREEMENT

The WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs Agreement) is the Uruguay Round agreement encompassing the
protection and enforcement of intellectual property rights. Articles 3 and 4
contain national treatment and obligations regarding the protection of
intellectual property. The US Constitution and the TRIPS agreement specify
that a patent may be granted in the United States if the invention meets the
statutory requirements of novelty, utility (being capable of practical
application), and (the invention would not be obvious to someone of ordinary
skill who practiced in the technical field in question). These three
requirements comprise the three pronged patentability requirement under
TRIPS. Diamond v. Chakrabarty293 laid down the principle that only manmade matter is patentable as discussed in previous sections, and the judges in
Myriads case seem to agree.
Article 27(1) of the TRIPS Agreement states that patents can be granted
for any inventions (whether products or processes), in all fields of technology,
on condition that they are new, contain an inventive and innovative step and
are capable of industrial application. The United States of America has its
own litmus test for patentability. We notice that their law dictates that an idea
must satisfy a three-pronged test of novelty, utility and non-obviousness. On
top of that, the invention must not have been sold in the market or used by the
public in the US for more than one year before the date of filing the patent
application.
293
Id.
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112
A further comparison could be drawn in order to establish whether policy

exceptions under Section 3 of the Patents (Amendment) Act, 2002294 of India
are a subset of the three-pronged patentability requirement or whether they are
an additional requirement.
Discussing sections relevant to the Myriad case, we observe that
Section 3 of the Act enumerates what are products and processes are not
inventions, and it discusses those inventions which are not patentable. One of
the many conditions it lays down (apart from inventions contrary to law,
against public policy and morality, etc.) is that mere discovery of a scientific
principle or the formulation of an abstract theory or discovery of any living
thing or non-living substance occurring in nature is not patentable. The new
clause (d) under Section 3 instructs that the mere discovery of a new form of a
substance which does not result in any enhancement of the substance cannot
be patentable. There are 16 sub-sections of Section 3295 (after the amendment
of 2002), thus giving a detailed and thorough list of all inventions that either
cannot be deemed inventions or cannot be patentable.
In addition to deciding what is and what is not an invention, national
laws can establish exceptions to the patentability of invention that would
otherwise be protectable. There are three permissible exemptions to the basic
rule on patentability.296 These exceptions from patentability exist to protect
public order or morality, prevent environmental deterioration and protect
human, animal and plant life. Thus, India is able to adjust their laws according
to their own conceptions of morality shaped by their own societal and cultural
backgrounds and modes of thinking. Due to heavy competition and
importance in the field of biotechnology, the controversial clause (b) of
Article 27 of TRIPS Agreement has been modified to allow patenting of
micro-organisms if suitably genetically modified and not simply those
existing in nature, which can be related to the Supreme Courts decision in
Myriads case, where the mere discovery of the BRCA1 and BRCA2 genes
294
Patents (Amendment) Act, 2002.

Id., Sec. 3.
296
Article 27 (2) and (3) of TRIPS Agreement.
295
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were not patentable, though their modified, enhanced and essentially manmade cDNA was patentable. Unlike the Patents Act, 1970 and the Patents
(Amendment) Act, 2002, the 1911 Act does not specify the requirement of
being useful in the definition of invention. But the courts were always of the
view that a patentable invention, apart from being a new manufacture, must
also be useful.297
Without violating the provisions and conditions of TRIPS, the Indian
courts can interpret what is against morality and can discover the kinds of
commercial exploitations that are capable of causing sombre prejudice to
human, animal or plant life. Like the TRIPS provisions, Indian law also does
not specifically define what is opposed to public policy. It is left to the
discretion of the Indian courts and authorities to interpret and consider each
case distinctly and fix the standards.298 Thus, we observe that Indias
provisions and policy exceptions for patentability form not a sub-set of
TRIPS, but display additions to the agreement itself, supplementing it with
their own clauses determined by nationally subjective conceptions of morality
and patent acquisition.
CONCLUSION
Gene patenting has always been a rather controversial topic of
discussion. This Supreme Court decision has certainly proven to be beneficial
to a large number of people. Patients who feel they have a chance of
developing breast cancer now have greater access to testing. This will
significantly reduce the risk of developing breast cancer, as women will now
be able to test for this insatiable disease and effectively cure it within the early
stages itself. This judgment will certainly aid in saving the lives of thousands
of women. However, there are disadvantages, as I have discussed earlier. The
scope for innovation is greatly limited and the risk-taking efforts of
pharmaceutical entities and concerned companies will be narrowed
significantly, owing to the chance of very low returns arising out of increased
297
Biswanath Prasad RadheyShyam v. Hindustan Metal Industries, AIR 1982 SC 1444.

K.D. Raju, WTO-TRIPS Obligations and Patent Amendments in India: A Critical
Stocktaking, 9 Journal of Intellectual Property Rights, 226-241(2004).
298
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114
competition and universal access to newly created techniques of testing and

subjects of research. This judgment can be viewed to benefit and disadvantage
a great number of people simultaneously. However, I personally feel that
though innovation may be restricted to a certain extent, patients now have a
better chance for survival. New techniques and novel processes may not be
developed as competitively as before, but the refusal to patent such elements
will not put a complete halt to the origination and creativity that entities
essentially require to survive in the genetic industry. There will continue to be
modernisation due to increased competition. Companies must essentially
innovate to remain favourable in the eyes of the public and their target
audiences. Though the Myriad judgment has inconveniently invalidated
hundreds of previously issued patents on genetic materials, it has opened a
new door to wider access and comparatively affordable testing that will
certainly be responsible for satisfying the several civil and womens support
organizations that objected to these patents in the first place, as well as saving
uncountable lives.
VOLUME 1
JUNE 2015
ISSUE 2
WOMENS RIGHT: 20+ YEARS OF THE BEIJING

CONFERENCE
Saif Rasul Khan
During this decade there has been a significant shift in approach to women's
advancement and empowerment, though the progress has been uneven.
Countries around the globe have realised that no country can progress without
bridging the gap in gender inequality and bringing women to the forefront.
This shift in approach reflects a human rights approach to issues of concern to
women. The Beijing Convention in the 1995 had asserted that Womens
rights are human rights. The Conference called for the integration of
womens human rights in the work of the different human rights bodies of the
United Nations. A draft Programme of Action was prepared and 12 critical
areas of concern were identified which included poverty, education, violence
against women etc among others. Human rights are considered to be one of
the most basic rights and norms that explain the quality of life that a human
should enjoy and as they are very important they must be protected by various
national and international laws. The principle of the equal rights of women
and men is contained in the Charter of the United Nations, the Universal
Declaration of Human Rights and all subsequent major international human
rights instruments. It is most comprehensively elaborated in the Convention
on the Elimination of All Forms of Discrimination against Women, which
codifies women's right to non-discrimination on the basis of sex and equality
as self-standing norm in international law. Vital areas, such as political
participation and access to equal opportunity in public life and in the
professions are covered comprehensively in CEDAW. The Convention also
addresses women's right to education and training, health and employment.
Government Law College, Mumbai.
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WOMENS RIGHT
116
Twenty years have passed since the Fourth World Conference on

Women set out an expansive vision and landmark set of commitments for
achieving gender equality in the Beijing Declaration and Platform for Action.
Twenty years since the Beijing Conference, it is a hard truth that many
barriers and constraints that were recognized by the Beijing signatories are
still in force globally. There are highlights where progress has been made. But
no country has achieved gender equality. On an analysis of the report of the
Secretary General it can be seen that progress has been unacceptably slow,
with stagnation and even regression in some cases. Progress has been
particularly slow for women and girls who experience multiple and
intersecting forms of discrimination. There is a long way to go to achieve full
equality with ending gender-based violence a central goal progress over
the past two decades has proven the enduring value of the 1995 Beijing
Conference on Women. The United Nations Women Ececutive Director,
Phumzile Mlambo- Ngcuka, in the UN Women Conference in United States
said Creating a world with greater equality for generations to come is the
defining and most urgent challenge of this century. Gender equality
and the realization of womens and girls human rights are
fundamental for achieving human rights, peace and security, and
sustainable development and must be central to the post-2015
development agenda. We have set 2030 as the expiry date for gender
inequality. Achieving this will require unprecedented political
leadership, dedicated and vastly increased resources, and new
partnerships across the whole of society.
BEIJING CONFERENCE
The Beijing Convention in the 1995 had asserted that Womens rights
are human rights. The Conference called for the integration of womens
human rights in the work of the different human rights bodies of the United
Nations. The Mission Statement of the Beijing Declaration called for womens
empowerment and removing all the obstacles to womens active participation
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in all spheres of public and private life through a full and equal share in
economic, social, cultural and political decision-making.
This meant that the principle of shared power and responsibility should
be established between women and men at home, in the workplace and in the
wider national and international communities. Equality between women and
men was stated to be a matter of human rights and a condition for social
justice is also a necessary and fundamental prerequisite for equality,
development and peace. The term human rights, defined in the Universal
Declaration of Human Rights reads as the rights derived from the inherent
dignity of the human person.299 The Universal Declaration of Human Rights
had affirmed the principle of the inadmissibility of discrimination and
proclaimed that all human beings are born free and equal in dignity and rights
and freedom set forth therein, without distinction of any kind, including
distinction based on sex. The Beijing Convention endorsed the Convention on
Elimination of All Forms of Discrimination Against Women (CEDAW), which
was adopted by the General Assembly on December 18, 1979. The
Convention is often described as an International Bill of Rights for Women,
and it came into force in 1981. The Convention covers every aspect of lifeHealth, Education, Economic status, freedom from violence among many
others. The Fourth Conference on women was held in 1995 in Beijing.300 It
considered issues of violence against women in public and private life as a
human rights issue. The Conference also called for the eradication of any
conflicts which may arise between the rights of women and harmful effects of
certain traditional or customary practices. A draft Programme of Action was
drawn out and it identified 12 areas of concern.
299
Universal Declaration of Human Rights, 1948. Available at:

http://www.un.org/en/documents/udhr/ (last accesses on May 15, 2015).
300
Fourth World Conference on Women, Beijing, China- September 1995: Action for
Equality, Development and peace- Platform for Action; available at:
http://www.un.org/esa/gopher-data/conf/fwcw/off/a--20.en. (last accessed on May 15, 2015).
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WOMENS RIGHT
118
AREAS OF CONCERN FOR ACTION

The Beijing Conference identified 12 areas of concern which needed
immediate attention of the World Community.301
The areas identified were:
The persistent and increasing burden of poverty on women
Inequalities and inadequacies in and unequal access to education and

training
Inequalities and inadequacies in and unequal access to health care and

related services
Violence against women
The effects of armed or other kinds of conflict on women, including those

living under foreign occupation
Inequality in economic structures and policies, in all forms of productive

activities and in access to resources
Inequality between men and women in the sharing of power and decision
making at all levels
Insufficient mechanisms at all levels to promote the advancement of

women
Lack of respect for and inadequate promotion and protection of the human
rights of women
Stereotyping of women and inequality in womens access to and

participation in all communication systems, especially in the media
Gender inequalities in the management of natural resources and in the

safeguarding of the environment
Persistent discrimination against and violation of the rights of the girl

child
In each of the said critical areas of concern, strategic objectives were
laid down which addressed the issue and action to be taken by various actors
was also chalked out.
301
Id.
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STATEMENT OF WORLD LEADERS IN BEIJING CONFERENCE,

1995
The fourth world conference on Women garnered great support from all
the nations of the world with an overwhelming support by the world leaders
and dignitaries.
Three powerful and important women gave very impactful and endearing
speeches on womens right, which has been reproduced below. A collective of
NGOs represented India in the Conference, stressing on certain fundamental
aspects and lacunas in the Declaration.
1. BANGLADESH
Statement of the Hon'ble Prime Minister Of The People's Republic Of
Bangladesh: Begum Khaleda Zia302
We have gathered here in Beijing for a common purpose, to renew
our commitment to the advancement of women. As I stand here in this seat
of ancient civilization, I feel inspired by a sense of optimism that the ageold prejudices against women are finally giving way and we are drawing
closer to our cherished goal of equality, development and peace. I have no
doubt that this World Conference in Beijing will be a landmark in the
history of women's struggle towards equality and freedom.
I came to Beijing with a sense of great hope and expectation. I shall
not leave disappointed. On the contrary, my sense of determination to
continue to work for tile women of Bangladesh, for their betterment, for
their happiness and well-being has been fortified and strengthened. True,
the task is enormous but I know that today the world stands behind us. We
shall support, sustain and encourage each other in facing the challenges
ahead. We must succeed and indeed we will.
United Nations, Statement by Prime Minister of Peoples Republic of Bangladesh,

available at:
http://un.org/esa/gopher-data/conf/fwcw/conf/gov/950904215436.txt.
(last accessed at May 15, 2015).
302
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WOMENS RIGHT
120
2. PAKISTAN
Statement of the Hon'ble Prime Minister Of Islamic Republic Of
Pakistan: Benazir Bhutto303
There is a moral crisis engulfing the world as we speak a crisis of
injustice and inaction, a crisis of silence and acquiescence. The crisis is caused
by centuries and generations of oppression and repression. This conference,
therefore, transcends politics and economics. We are dealing with a
fundamental moral issue. This is a truly historic occasion. Some 40,000
women have assembled here to demand their rights; to secure a better future
for their daughters; to put an end to the prejudices which still deny so many of
us our rightful place in society. On this solemn occasion I stand before you
not only as a Prime Minister but as a woman and a mother a woman proud
of her cultural and religious heritage, a woman sensitive to the obstacles to
justice and full participation that still stand before women in almost every
society on earth.
As the first woman ever elected to head an Islamic nation, I feel a
special responsibility towards women's issues and towards all women. And as
a Muslim woman, I feel a special responsibility to counter the propaganda of a
handful that Islam gives women a second class status.
Boys are wanted. Boys are wanted because their worth is considered
more than that of the girl. Boys are wanted to satisfy the ego: they carry on the
father's name in this world. Yet too often we forget that for Muslims on the
Day of Judgement, each person will be called not by their father's name but by
the mother's name. To please her husband, a woman wants a son. To keep her
husband from abandoning her, a woman wants a son. And, too often, when a
woman expects a girl, she abets her husband in abandoning or aborting that
innocent, perfectly formed child. As we gather here today, the cries of the girl
child reach out to us. This conference need to chart a course that can create a
United Nations, Statement by the Prime Minister of Islamic Republic of Pakistan,

available at:
http://www.un.org/esa/gopher-data/conf/fwce/conf/gov/950904202603.txt.
303
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climate where the girl child is as welcomed and valued as a boy child, that the
girl child is considered as worthy as a boy child.
Empowerment is not only a right to have political freedom.
Empowerment is the right to be independent; to be educated; to have choices
in life. Empowerment is the right to have the opportunity to select a
productive career; to own property; to participate in business; to flourish in the
market place. Let us remember the words of the German writer, Goethe:
"Freedom has to be re-made and re-earned in every generation. We
must do much more than decry the past. We must change the future. I
believe time, justice and the forces of history are on our side. We are
here in Beijing to proclaim a new vision of equality and partnership.
Let us translate this vision into reality in the shortest possible time.
3. UNITED STATES OF AMERICA
STATEMENT
BY
THE
FIRST
LADY
HILLARY
RODHAM
CLINTON304
However different we may be, there is far more that unites us than
divides us. We share a common future. And we are here to find common
ground so that we may help bring new dignity and respect to women and girls
all over the world -- and in so doing, bring new strength and stability to
families as well. By gathering in Beijing, we are focusing world attention on
issues that matter most in the lives of women and their families: access to
education, health care, jobs, and credit, the chance to enjoy basic legal and
human rights and participate fully in the political life of their countries.
We also must recognize that women will never gain full dignity until
their human rights are respected and protected. Our goals for this conference,
to strengthen families and societies by empowering women to take greater
control over their own destinies, cannot be fully achieved unless all
governments -here and around the world -- accept their responsibility to
protect and promote internationally recognized human rights.
United Nations, Statement by the First Lady Hillary Rodham Clinton, available at:
http://www.un.org/esa/gopher-data/conf/wcw/conf/gov/950905175653.txt.
304
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WOMENS RIGHT
122
The international community has long acknowledged -- and recently

affirmed at Vienna -- that both women and men are entitled to a range of
protections and personal freedoms, from the right of personal security to the
right to determine freely the number and spacing of the children they bear.
I believe that, on the eve of a new millennium, it is time to break our
silence. It is time for us to say here in Beijing, and the world to hear, that it is
no longer acceptable to discuss women's rights as separate from human rights.
Now it is time to act on behalf of women everywhere. If we take bold
steps to better the lives of women, we will be taking bold steps to better the
lives of children and families too. Families rely on mothers and wives for
emotional support and care; families rely on women for labour in the home;
and increasingly, families rely on women for income needed to raise healthy
children and care for other relatives.
As long as discrimination and inequities remain so commonplace
around the world -- as long as girls and women are valued less, fed less, fed
last, overworked, underpaid, not schooled and subjected to violence in and out
of their homes -the potential of the human family to create a peaceful,
prosperous world will not be realized.
4. STATEMENT BY SHOBANA RANADE, President, All India Women's
Conference (AIWC)305
INDIAN NGOS INTERVENTION
(A Statement on behalf of seven Indian National Women's Organisations)
With two thirds of the world's population dependant on agriculture, there

is no mention in the draft platform of action of land reform and the need
for distribution of land with ownership rights (not just access) to poor
women. This should be rectified.
The goal of all programmes undertaken should be total eradication of

poverty, instead of alleviation of poverty.
United Nations, Statement by Shobana Ranade, President, All India Women's Conference
(AIWC), available at:
http://www.un.org/esa/gopher-data/conf/fwcw/conf/ngo/07143242.txt.
305
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We draw attention to the fact that privatization of education turns this

human right into a profit making industry, further marginalizing women.
We oppose the primacy given to population reduction through the control

of women's fertility by the use of harmful contraceptives in programmes,
often through coercive methods.
We appeal for comprehensive legislation against domestic violence to be

enacted by member states of the U.N through a bill of rights.
We deplore the use of violence by the state or dominant classes including

the use of rape as a weapon against women of oppressed communities.
We oppose the huge growth of the arms industry in G-7 countries

recognizing that excessive military spending is one of the main constraints
for development. Maintenance of national security and peace is essential
for economic growth and development and the empowerment of women.
While recognizing that economic independence is the pre-requisite for

women's equality, we condemn the devastation caused by structural
adjustment programmes in the field of employment for women.
We re-affirm the need to safeguard women's interest and participation in

decision making at all levels by reserving seats for women in all elected
bodies.
We appeal for the establishment of autonomous bodies to monitor

government policies and make recommendations binding for the
governments which will be held accountable to elected legislatures.
We appeal to this conference to use every affirmative action possible to

narrow the gender gap in all important spheres.
We call upon every government to ratify CEDAW (Convention Against

Eradication if all forms of Discrimination Against Women) and submit
annual progress reports to the CEDAW monitoring committees set up by
the U.N.
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WOMENS RIGHT
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We ask for the acknowledgement of the linkages between easily accessible

pornography and increasing violence against women and appeal to the
media, audio-visual and electronic, to halt the commodification of the
female body.
We urge this conference to confirm that the basic human rights are the
right to food, employment, housing, clothing and health services and that
the index of human rights has to be related to the quality of life.
SUMMARY REPORT ON BEIJING DECLARATION: KEY

STATISTICS FROM APPRAISAL OF BEIJING REPORT306
Women and Poverty
Data from 29 countries in Africa, Asia and Latin America shows that only
33 per cent of women aged 15 to 49 earned cash income, compared to 83
per cent of men in the same age category (in the last 12 months).
Globally, only 47 per cent of women over the age of 15 in developing
countries had an account at a formal financial institution in 2011,
compared to 55 per cent of men. Poor girls are 2.5 times more likely to
marry early than those who are wealthy.
Education and Training of Women
All developing regions have achieved, or are close to achieving, gender
parity in primary schools. While some regions have achieved parity in
secondary school, others still fall short.
The impact of poverty on girls education in particular is especially stark
in sub-Saharan Africa, where children from the richest 20 per cent of
households reach ninth grade at 11 times the rate of those from the poorest
40 per cent of households.
Gender disparities remain wider in tertiary colleges and universities. The
biggest gap is in sub-Saharan Africa, where 64 girls are enrolled for every
100 boys at the tertiary level.
UN Women, Document, Beijing Platform For Action: Key Statistics, Available at:
http://www.unwomen.org/en/news/stories/2015/3/urgent-action-required-in-five-key-areassays-beijing-summary-report (last accessed on May 15, 2015).
306
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Worldwide, 89 per cent of men are literate compared to 80 per cent of

women. The gender gap is wider in the least developed countries, where
67 per cent of men are literate versus 51 per cent of women.
Women and Health
Maternal deaths have dropped by 45 per cent since 1990.
Yet in 2013, nearly 800 women died every day from maternal cause 99
per cent in developing countries. Most of their lives could have been saved
with simple, well-known medical interventions.
More than 140 million women who are married or in a union cannot
obtain family planning. Poverty and geographic location remain key
determinants of unmet needs for family planning, with significant
differences between poor rural women and rich urban women.
Globally, young women between 15 and 24 years of age have a 50 per
cent higher risk of becoming infected with HIV, compared with their male
peers.
Violence Against Women
1 in 3 women worldwide have experienced physical or sexual violence,
mostly by an intimate partner.
A global study on homicide found that almost half of female homicide
victims are killed by their intimate partner or family members. The figure
for men is just over 1 in 20 homicide victims.
A study of 42,000 women in the European Union found that 55 per cent of
women have experienced sexual harassment at least once since the age of
15.
Women and Armed Conflict
In 2000, the UN Security Council adopted the groundbreaking resolution
1325 on women, peace and security. It recognizes that war impacts
women differently, and reaffirms the need to increase womens role in
decision-making related to conflict prevention and resolution.
From 1992 to 2011, however, only 4 per cent of signatories to peace
agreements and 9 per cent of negotiators at peace tables were women.
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126
Women and The Economy

Between 1992 and 2012 the gender gap in labour force participation has
only narrowed slightly, from about 28 to 26 percentage points. In 2012,
the female labour force participation rate was 51 per cent, compared to 77
per cent for males.
Women earn between 10 and 30 per cent less than men, based on data
from 83 countries. At the current pace of progress, it would take more than
75 years to reach equal remuneration for work of equal value.
There are 25 women CEOs in Fortune 500 companiesa stark contrast to
1 in 1998. Still, this is a mere 5 per cent of all CEOs on the list.
Women in Power and Decision-Making
Women held only 22 per cent of national parliamentary seats as of the
start of 2015, a slow increase from 11.3 per cent in 1995.
In 2015, 19 countries had women heads of State or government, up from
12 countries in 1995.
Institutional Mechanisms for the Advancement Of Women
Although two-thirds of national statistical offices have focal points or
desks for gender statistics, only 31 per cent have a dedicated office for
gender statistics.
Only 12.7 per cent of countries have a gender statistics budget; 48 per cent
depend on ad hoc funds.
Women and Human Rights
Only 143 out of 195 countries guaranteed equality between women and
men in their constitutions as of 2014.
188 countries have ratified the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), but the Beijing
Platform for Action goal of universal ratification has not been achieved.
Many countries have maintained reservations, particularly on article 2 on
policy measures, and article 16 on marriage and family life. The latter
signals reluctance to regulate the private sphere, where deeply entrenched
gender discrimination often continues unchallenged.
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In 26 of 143 countries, statutory inheritance laws differentiate between

women and men
Women and the Media
Only 40 per cent of people worldwide can connect to the Internet. The
gender gap is worse in developing countries; 16 per cent fewer women
than men go online, compared to only 2 per cent fewer in developed
countries.
A global report that contains data on women in the news media, spanning
59 countries and 522 news media organizations, found that women make
up 35 per cent of the total media workforce across the world, but only hold
roughly a quarter of the jobs in top management (27 per cent) and
governance (26 per cent).
In 2010, a study of 108 countries found that only 24 per cent of people
seen or heard in print, radio and television news were female.
A study across eleven countries found that only 23 per cent of films had
female protagonists.
Women and the Environment
Although 89 per cent of the world in 2012 had access to improved
drinking water sources compared to 76 per cent in 1990, 748 million
people still lacked access to clean drinking water, most of them living in
rural areas.
Women bear the brunt of time-consuming water collection. A study in 25
sub-Saharan African countries estimated they spend at least 16 million
hours a day collecting drinking water. Men spend 6 million hours and
children 4 million hours.
The Girl Child
A girls chance of going through female genital mutilation (FGM) has
fallen by a third over the last 30 years. Yet more than 133 million girls and
women have experienced some form of FGM in the 29 countries in Africa
and the Middle East where it remains prevalent.
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More than 700 million women today have married by age 18; more than
one-third before 15. If current trends continue, the number of girls
marrying early each year will grow, from 15 million in 2014, to 16.5
million in 2030, to over 18 million in 2050.
KEY MESSAGES FROM THE SECRETARY GENERALS REPORT307

The Platform for Action
Twenty years after its adoption, the Beijing Declaration and Platform
for Action remains the most comprehensive international blueprint for
advancing womens human rights. These documents firmly anchored the
struggle for gender equality within a human rights framework and made a
clear statement about State responsibility in delivering on the commitments
that were made.
Looking back, 20 years on
As part of the 20th anniversary of the Beijing Platform for Action, UN
Women undertook a global review and appraisal of implementation. A record
number of 166 countries have submitted national reports assessing
implementation of the Platform for Action. This is the largest ever number of
reports received on achievements and gaps for women and girls at the national
level. There have also been rich inputs from civil society and from regional
institutions. This shows unprecedented commitment to advancing the gender
equality agenda.
Twenty years on from the commitments made in Beijing, no country
has achieved gender equality. The analysis of these reports shows that
progress has been unacceptably slow, with stagnation and even regression in
some cases. Progress has been particularly slow for women and girls who
experience multiple and intersecting forms of discrimination.
UN Women, Institutional Reports Summary Report: The Beijing Declaration and

Platform for Action turns 20. Available at:
http://www.unwomen.org/en/digital-library/publications/2015/02/beijing-synthetis-report
307
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Areas of progress
Countries have increasingly removed discrimination in laws and adopted

laws to promote gender equality and address violence against women and
girls.
There have been significant gains in girls enrolment in primary and

secondary education.
In some regions, such as Latin America, womens participation in the

labour force has increased.
There has been a doubling in womens representation in national

parliaments from 11% in 1995 to 22% today.
Maternal mortality has decreased by 45% since 1990. All regions have
increased womens access to contraception.
Significant normative advances have been made in the global agenda on

women, peace and security.
Major gaps remain
Discrimination in the law persists in many countries, particularly in the

area of family law.
Womens increasing educational attainment and rising participation in the

labour market have not been matched with better conditions, prospects for
advancement and equal pay.
In the last 20 years the global gender gap in labour market participation
has only narrowed marginally, from 28 to 26 percentage points.
Women continue to be clustered in vulnerable and informal types of work.

The gender pay gap is a universal phenomenon.
Heavy and intense unpaid care workloads limit womens enjoyment of

human rights in several areas.
Violence against women and girls persists in all countries and in many
forms.
Unacceptably high levels of maternal mortality continue in some regions.

Violations of womens sexual and reproductive health and rights remain
widespread.
Women continue to be excluded from decision-making at all levels.
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The chronic underinvestment in gender equality is a major barrier to

progress in all areas.
Progress has been unacceptably slow
At current pace, it is estimated that it would take 81 years to achieve
gender parity in economic participation, more than 75 years to reach equal

remuneration for work of equal value and about 50 years for gender parity in
representation in parliaments.
Over the last 20 years several forces in the global political and
economic landscape have held back progress on gender equality. Persistent
conflicts, the global financial and economic crises, volatile food and energy
prices, food insecurity and climate change have intensified inequalities and
vulnerability, with specific impacts on women and girls.
Fragile gains towards gender equality continue to be threatened by
rising extremism and backlash against womens rights in many contexts.
Deep-seated discriminatory norms, stereotypes, prejudice and violence remain
pervasive.
A key finding is that there has been uneven attention across the critical
areas of concern, with some areas receiving greater focus than others. For
example, there have been important advances in girls education, but less
commitment to increasing womens access to decent work. Gaps between
norms and implementation signal a collective failure of leadership.
Five Areas for Action
Urgent action is required in five key areas to accelerate progress:
1. Transforming discriminatory social norms and gender stereotypes. There is
a need to change discriminatory social norms, stereotypes and practices that
are holding back progress. This requires an investment in long term
interventions and campaigns to change attitudes and behaviours, including on
male responsibility for unpaid care work and for challenging discrimination
and violence.
2. Transforming the economy to achieve gender equality and sustainable
development. Macroeconomic policy should be reoriented to increase State
investments in infrastructure, social services and social protection measures to
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ensure that women and girls can live a life with dignity. Macroeconomic
policies should also support the generation of decent work for women and
men and ensure women can enjoy their full range of rights at work.
3. Ensuring the full and equal participation of women in decision-making at
all levels means participation in political institutions, in the economy, in
conflict prevention and resolution, in climate change negotiations, in
community planning, in family decisions, in collective action to advance
womens human rights. Temporary special measures provide a proven
strategy for increasing womens representation in decision-making and should
be replicated and expanded.
4. Significantly increasing investments in gender equality. This includes
domestic resources and ODA. This can be done by reorienting
macroeconomic policies (tax policy, government expenditures, and debt
management) and global economic governance to expand fiscal space by mobilizing resources both domestically and internationally.
5. Strengthening accountability for gender equality and the realization of the
human rights of women and girls. We need increased investments in gender
statistics, stronger national gender machineries and gender-responsive institutions, and greater efforts to make gender mainstreaming the norm in
government policy. Governments must ensure that private actors are held
accountable for the impact of their actions on womens enjoyment of human
rights. Feminist and womens movements must be strengthened and supported
to advance claims for womens human rights.
Accelerating the implementation of the Platform for Action across all
critical areas of concern and maximizing the synergies between them requires
all human rights of women and girls to be realized with attention to the
interdependence and indivisibility of rights.
Tackling inequalities and multiple forms of discrimination must be a
priority. We must look beyond the averages to monitor the impacts and
results of laws and policies for women and girls who experience multiple and
intersecting forms of discrimination.
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SECRETARY-GENERAL'S MESSAGE FOR 2015

Twenty years ago, when the world convened a landmark conference
on womens human rights, the devastating conflict in the former
Yugoslavia prompted deserved attention to rape and other war crimes
there against civilians. Two decades later, with girls as young as seven
not only targeted but used as weapons by violent extremists, it would
be easy to lose heart about the value of international gatherings. But
while we have a long way to go to achieve full equality with ending
gender-based violence a central goal progress over the past two
decades has proven the enduring value of the 1995 Beijing Conference
on Women.308
The Secretary General stated that since the adoption of its Declaration
and Platform for Action, there has been progress in diverse areas and it has
been noticed that more girls have attained access to education than ever
before, the number of women dying in childbirth has been almost halved and
more
women
are
leading
businesses,
governments
and
global
organizations. The Secretary General welcomed these advances, however he

also drew attention to the fact that the gains have been too slow and uneven,
and that there is a lot to do so as to accelerate progress everywhere. The
Secretary General requested that the world must come together in response to
the targeting of women and girls by violent extremists. He focused his
attention on the plight of the women who have been attacked for trying to
exercise their right to education and basic services; have been raped and
turned into sex slaves or given as prizes to fighters, or traded among extremist
groups in trafficking networks etc. The Secretary General further called for a
clear global stance against this total assault on womens human rights.
According to him, the international community needs to translate its outrage
into meaningful action, including humanitarian aid, psycho-social services,
United Nations, Secretary Generals Message for 2015, on the occasion of International
Womens Day, March 8, 2015. Available at:
http://www.un.org/en/events/womensday/2015/sgmessage.shtml (last accessed at May 15,
2015).
308
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support for livelihoods, and efforts to bring perpetrators to justice. The

Secretary General in his message also highlighted that even in societies at
peace, a large section of girls and women are still targets of domestic abuse,
female genital mutilation and other forms of violence that traumatize
individuals and damage whole societies. The Secretary General cited that
there is a need to expand opportunities in politics, business and beyond and
need to change mind-sets, especially among men, and engage men in
becoming active change-agents themselves.
The Secretary General acknowledged that this is a vital year for
advancing the cause of womens human rights and according to him, the
world will never realise 100 per cent of its goals if 50 per cent of its people
cannot realize their full potential. He said The International community must
unleash the power of women, and thereby secure the future for all.
OP-ED BY UN WOMEN EXECUTIVE DIRECTOR PHUMZILE
MLAMBO-NGCUKA
If we look at the headlines or the latest horrifying YouTube clip,
today International Womens Day may seem a bad time to
celebrate equality for women. But alongside the stories of
extraordinary atrocity and everyday violence lies another reality, one
where more girls are in school and more are earning qualifications
than ever before; where maternal mortality is at an all-time low;
where more women are in leadership positions, and where women are
increasingly standing up, speaking out and demanding action.309
In an op-ed for International Womens Day on 8th March 2015, United
Nations Women Executive Director Phumzile Mlambo-Ngcuka reviewed the
mixed progress since the 1995 Beijing Conference and asked for bold steps to
accelerate change in the lives of women and girls. She underlined the urgent
need to recommit to the promises made in 1995 by world leaders, and an end
United Nation Women, Op-ed by Phumzile Mlambo-Ngcuka, Its time to Step It Up for
Gender Equality (March 4, 2015).
Available at:
http://beijing20.unwomen.org/en/news-and-events/stories/2015/3/oped-beijing-at-20phumzile-mlambo-ngcuka-un-women (last accessed May 15, 2015).
309
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point to achieving gender equality. Calling for substantial change, she stressed
on the need to frontload actions for the next five years to achieve full equality
before 2030.
PLANET 50:50
Planet 50-50 by 2030: Step It Up for Gender Equality" is an initiative
by the United Nations which asks governments to make national commitments
to address the challenges that are holding women and girls back from reaching
their full potential. It was launched on the occasion of International Women's
Day 2015. Step It Up will showcase specific commitments that governments
make, leading up to the United Nations General Assembly in 2015. The idea
of Step It Up comes at a critical moment in time as a new development
agenda is taking shape in order to replace the Millennium Development Goals.
Passing of new laws or strengthening the existing ones is one ways suggested
to Step It Up. The other actions which were recommended included creating
programmes to eradicate violence against women and girls, encouraging
women's participation in decision-making, investing in national action plans
or policies for gender equality, creating public education campaigns to
promote gender equality, etc.310
INDIA: WOMENS RIGHTS, BEIJING CONFERENCE AND UN

WOMEN
In India, it has been a long drawn out struggle for achieving equality of
women. The commitment to gender equity is well entrenched at the highest
policy making level- The Constitution of India in Articles 14, 15, 39, 42 etc.
India has ratified the Convention on Elimination of All Forms of
Discrimination against Women (1979). By ratifying the Convention, India is
constrained to honour the obligations imposed under the Convention.
United Nations Women, The Beijing Platform For Action Turns 20, Step It Up.
Available at: http://beijing20.unwomen.org/en/step-it-up. (last accessed May 15, 2015).
310
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In Madhu Kishwar v. State of Bihar311, it was held by the Supreme Court that
the Convention on the Elimination of All Forms of Discrimination against
Women is an integral scheme of the Fundamental Rights and the Directive
Principles. The Indian Judiciary has independently and effectively intervened
and addressed the issue in numerous cases. For instance, in Air India v.
Nergesh Mirza312, the Supreme Court struck down provision of rules
stipulated which terminated the service of airhostesses on her first pregnancy
as arbitrary and abhorrent. In Maya Devi v. State of Maharashtra313, the
requirement that a married woman should obtain her husbands consent before
applying for public employment was held invalid and unconstitutional. In
Githa Hariharan v. Reserve Bank of India314, the Supreme Court while
interpreting the word after in Section 6, of the Hindu Minority and
Guardianship Act, 1956 held that the mother could be the guardian in the
absence of the father.
In the landmark case of Vishaka v. State of
Rajasthan315, the Supreme Court laid down guidelines for prevention of

sexual harassment at workplace which is now consolidated as an act.
Nevertheless, even with such enactments and laws, there is still a lot to
accomplish for women in India. The laws enacted must be backed by public
willingness and opinion because unless the mindset and social thinking is not
addressed, the society will never be able to achieve its ends.
UN Womens office is based in New Delhi, which covers four
countries: India, Bhutan, Maldives and Sri Lanka. UN work in these
countries to strengthen womens rights by working with women, men,
feminists, womens networks, governments, local authorities and civil society.
UN Women helps to create national strategies to advance gender equality in
line with national and international priorities. UN Women states that equal
participation of women is needed in all aspects of life, but focuses on four
priority areas:
311
Madhu Kishwar v. State of Bihar, A.I.R. 1999 S.C. 625.

Air India v. Nergesh Meerza, A.I.R. 1981 S.C. 1829.
313
Maya Devi v. State of Maharashtra, I.S.C.R. (1986) 743.
314
Githa Hariharan v. Reserve bank of India, A.I.R. 1999 S.C. 1149.
315
Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011.
312
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Ending violence against women: Violence against women and girls is a

grave violation of human rights. Its impact ranges from immediate to longterm multiple physical, sexual and mental consequences for women and girls,
including death. UN Women responds to violence against women and girls in
all its forms from domestic violence, trafficking to violence in public places.
Promoting Leadership and Participation: Women are underrepresented
as voters, as well as in leading positions, whether in elected offices, civil
services, the private sector or academia. This occurs despite their proven
abilities as leaders and agents of change, and their right to participate equally
in democratic governance. UN Women advocates for greater participation of
women in politics and decision-making. By working with 67,000 elected
women leaders in five states, UN Women was able to ensure that more
women participated in local village councils.
National Planning and Budgeting: National plans, policies, institutions
and budgets are where governments begin to translate commitments to women
into practical progress towards gender equality. Too often, however, they
overlook measures to ensure that public services respond to womens needs
and priorities. UN Women works with economists, planners, government
officials, bankers and the Indian Planning Commission to ensure that policies
and budgets reflect the needs of women across the country.
Economic Empowerment: Women make enormous contributions to
economies, whether in businesses, on farms, as entrepreneurs or employees, or
by doing unpaid care work at home. But they also remain disproportionately
affected by poverty, discrimination and exploitation. Many innovations with
women farmers, women workers at home, rural entrepreneurs, former women
scavengers are re-defining womens participation in the economy. UN
Women sees greater land and property rights as essential ingredients for long
term change.
In India, UN Women is working closely with the Government of India
and civil society to set national standards for achieving gender equality. One
of the most prominent contributions has been to ensure that women can
participate actively in politics, and voice their opinions freely.
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Some of the most significant achievements have been the support for the
implementation of landmark agreements such as the Beijing Declaration
and Platform for Action and the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW). There has been noteworthy
change in certain areas specific to India due to the constant support by the UN
Women.316
Addressing Domestic Violence in India
Since 2006, UN Women have supported the implementation and
monitoring of the landmark Protection of Women from Domestic Violence
Act, 2005. In partnership with the Lawyers Collective Womens Rights
Initiative and the Government of India, UN Women have helped to develop
important materials to increase awareness such as a manual for protection
officers and a handbook for the judiciary. For the first time in India, the
implementation of such legislation is being monitored on an annual basis.
Four Monitoring and Evaluation Reports have highlighted important
achievement and gaps.
The Bell Bajao (Ring the Bell) campaign by The Breakthrough Trust,
UN Women and the UN Trust Fund to End Violence Against Women reached
out to more than 130 million people and raised awareness about domestic
violence.
Women Power in Local Governance
UN Women, along with the Government of India, works to strengthen
the leadership skills and confidence of women leaders in Gram Panchayats so
they can make decisions that benefit all. So far 315 Mahila Jagruk Manches
have been formed with elected women representatives from 635 Gram
Panchayats in Madhya Pradesh, Odisha and Rajasthan in India. Almost 5,000
elected women representatives and over 17,000 women citizens have
participated in these Manches. This has shown that collective action helps
women leaders to prioritize issues and take important decisions.
United Nations Women, Asia and the Pacific, Results at a Glance
Available at: http://asiapacific.unwomen.org/en/countries/india/result-at-a-glance. (last
accessed on May 15, 2015).
316
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In Bihar, campaigns to strengthen womens empowerment during

elections have made a difference. Women candidates received support to file
nominations and manage electoral campaigns in Panchayat elections. Due to
this, there was a marked increase in the number of women canvassing during
elections. More women contested from general seats, and not just those
reserved for them.
Making Data Count for Women
UN Woman has worked with the Government of India and select UN
agencies to ensure that the census in this country reflects crucial data related
to women. In 2001, UN Womens partnership with the Government of India
and select UN agencies helped to capture data on women. There was an
increase in the female work force participation and overall sex ration in
intervention districts during 1991-2001. The provisional data of Census 2011,
released by the Office of the Registrar General of India, shows further
improvement in the growth rate of the female population in the period 20012011, in female literacy and in the overall sex ratio and a reduction in the
child sex ratio. These results reinforce the importance of engendering national
census exercises, which present an accurate current status of women and
relative gender gap in core areas such as growth, basic count, female workers,
head of the household, literacy and educational levels, marital status, age
structure, among others.
CONCLUSION
The Beijing Conference is a landmark in the struggle for womens right.
The Conference was the first major step towards acknowledging that womens
rights are human rights. Bringing such rights within the sphere of human
rights has widen its scope, accelerated the progression and given it the
necessary push. In many parts of the world, the idea of equality of women is
still a vision to be realised. There are instances of gross violation of human
rights, particularly faced by women in some form or the other. They are
generally the most oppressed section of the society and face the brunt of male
dominated societies. Nevertheless, the impact of the Conference cannot be
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overlooked. The 20 years review of the Conference highlighted the impact of

the Conference in the different areas of action identified in Beijing. The
widespread review process was one of the largest in the history of the United
Nations and this helped the United Nations to correctly assess the impact and
realization of the various action plans by the member states. The conference
had identified 12 areas of action and developed strategies in each of those
areas to be undertaken by the states. It was concluded that while there is
progress in the status of women and womens rights, it is slow and erratic,
with stagnation and even regression in some cases. In India, the struggle for
such women rights is a long drawn out battle. There is need or effort in many
areas relating to women and progress has been particularly slow for women
and girls as they experience multiple and intersecting forms of discrimination..
The fundamental rights of women need to be provided and unless the same is
done, the question of gender equality doesnt come into the picture.
Furthermore, in India there is a major call for change the outlook and attitude
of the society which will help bring about the true empowerment and
emancipation of women. The World leaders must join together and must
genuinely step up the action and fulfil the dream of achieving gender equality
by 2030, as envisioned by the United Nations. The initiative Planet 50:50 is a
fresh initiative taken up the United Nations Women and the strategies
identified and recommended in the initiative must be implemented in its true
spirit. It is the appropriate time to reaffirm the commitment to continue to
empower women and not for the sake of doing it, but to truly empower half
the population so as to ensure a bright future for the world.
VOLUME 1
JUNE 2015
ISSUE 2
IMPLEMENTATION OF FOREST RIGHTS ACT, 2006 IN TIGER

RESERVES:
INTERPLAY BETWEEN THE INDIAN FORESTS ACT,
1927 AND THE WILDLIFE PROTECTION ACT, 1972 IN
AREAS DECLARED TO BE CRITICAL HABITATS FOR

TIGERS
Roshini Bansal
Rachana.K
The
soaring rate at which the tiger population has been dwindling
has, and continues to be a major source of concern for the entire country. This
led to a plethora of legislations and awareness drives. The government started
Project Tiger, which was aimed at spearheading the process of effective
conservation of the national animal of the country. The most significant
legislation relating to the same was the Wildlife Protection Act, 1972 and
more importantly, its Amendment in 2006. The Amendment specifically deals
with tiger conservation and also makes a subsequent mention of the rights of
the forest dwellers. But the Act places tigers above the tribals. Since times
immemorial, the forest dwelling communities have been subject to gross
injustice. The very instance of this is one of the legislations passed during the
British era The Indian Forests Act, 1927. The Act placed the national and
commercial interest acquiescent to any other. The forest dwelling
communities were deprived of their own homes for the sake of revenue and
resources. These perpetual prejudices led to years of campaigning and
crusades which in turn lead to passing of The Forest Rights Act, 2006.
3rd Year, B.B.A. LL.B., Symbiosis Law School, Pune.

rd
3 Year, B.A. LL.B., Symbiosis Law School, Pune.
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The Act not only gives due recognition to the rights of the forest
dwelling communities on their homeland but also makes them an integral part
of the conservation process. The Act has had its own share of applauds and
censures. The implementation of the said Act has been in doubt time and
again and this could lead to a hindrance in tiger conservation as well as the
tribal protection process.
The paper focuses on how the Forest Rights Act, 2006 came into
existence. It concentrates majorly on the interplay between the Wildlife
Protection Act, 1972 and Indian Forest Act, 1927 which enabled the Forest
Rights Act, 2006 to see the light of day. Also, the paper deals with the issues
regarding implementation while covering the current scenario in the major
states of India. Finally, the paper proposes certain recommendations so as to
make the entire situation work effectively, in a balanced manner.
INTRODUCTION
In the last couple of years, we have heard plenty about the declining
tiger population and the pressing need for their conservations to ensure that
the national animal of the country does not fall into the hole of extinction. The
Amendment of 2006 of Wildlife Protection Act was passed in the same light.
In the background of the activities to protect and conserve tigers and to create
a safe place of habitat for them, the rights of the people have been endangered
ironically, especially of the forest dwelling communities who have considered
forests as their home for times immemorial and survived off the resources of
the forest. In spite of living in the forest land since very long, the rights of the
tribals over the forest land and resources is not settled. Colonial and
independent India did provide for a range of legislations but these provisions
have neither been effective in practice nor respected by the political elites.
The Indian Constitution under Schedule V provides for the administration and
control of the Scheduled Areas and Scheduled Tribes. With the increasing
pressure regarding conservation of tigers as they are in a constant threat of
being displaced, the legislature has over the years passed a number of
legislations to control the matter.
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142
Even though the Amendment of 2006 of the Wildlife Protection Act talks
about keeping in mind the rights of the tribals, at the end of the day, the
Amendment puts tigers over tribals and could not provide the needed
protection to the forest dwelling communities. Thus, the Forest Rights Act,
2006 was passed. The legislation is landmark in itself as it aims to undo the
historical injustice suffered by the forest dwelling communities in the country.
It aims to recognize and vest forest rights legally in the hands of the Forest
dwelling Scheduled Tribes and other forest dwelling communities who have
resided in forests since times immemorial but their rights have never been
recorded properly. For the first time in the history of the country, an attempt
has been made to embrace the forest dwelling communities in the
conservation process instead of completely excluding them from the same.
INTERPLAY BETWEEN INDIAN FORESTS ACT, 1927

&
WILDLIFE PROTECTION ACT, 1972
The Forest Act, 1927 was a crude piece of legislation passed in the
British Indian era, placing emphasis on regulation of transit of forest produce
and specifically monopolizing the timber produce and its use. The British
placed restrictions on the local forest dwelling communities by defining
forests as a national property for commercial and development purposes,
thereby putting at stake the local communities. Access to reserved forests
became a matter of privilege subject to permission from the authorities. The
Act gave the power to the government to regulate even private forests. Even
though the Act of 1927 provided for the protection and compensation for the
legally recognized individual community with rights to forest land or forest
products, it was assured that the implementation of the same was restricted to
a bare minimum. The Act depicted an adoption by the government, a policy
which deprived the tribal people of their age old rights and privileges. The
considerations for the maintenance of the eco system and environment
conservation were blatantly ignored.
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The Act worked against the interests of rural and tribal people whose
substantial existence depended solely upon the forest. The Forest Act, 1927
considered forests as a mere source of revenue and raw materials and palpably
disregarded the indispensable role that the forests play in the maintenance of
eco system and preservation of the environment and the rights and needs of
the forest dwelling communities. Basically, for the colonial powers, forests
were commerce, trees were timber and the forest dwellers were considered as
encroachers and trespassers.317
This Act was passed in the old British colonial era when mankind had
no clue about the impending environment hazards in the future. But there has
been a change in the scenario now. Environment related problems are on a
perpetual augmentation. One such issue is the soaring pace at which the tiger
population in the country has been declining. It has been a major concern for
the past couple of years and constant steps are being taken to start up the
conservation process. This conservation process by design includes depriving
the forest dwelling communities of their land and resources by declaring
forest areas rich in tiger population as critical and out of bounds for these
tribal communities.
This is where the Wildlife Protection Act, 1972 and more importantly
the Amendment of 2006 comes into picture. Through the decades, forest
dwellers have endured constant injustice and alienation. They have been
deprived of their rights for a very long time. And this so-called war between
the tigers and tribal has caused a lot of problems and injustice. This has been
enumerated upon later in the paper. The Wildlife Protection Act extensively
talks about Tiger Conservation. These clauses regarding tiger conservation
were inserted through the 2006 Amendment.318
317
Sanjoy Patnaik, Rights against all odds- How sacrosanct are Forest Tribal Rights?
Available at:
asc2008.glos.ac.uk/conference%20papers/papers/P/Patnaik_130901.pdf
(last visited at Sept. 14, 2013).
318
Chapter IV B, Section 2, Forest Rights Act, 2006.
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144
The Amendment was passed in light of the recent plunge in the tiger
population.319 Taking a major step towards conservation and protection of
tigers in the country, the Wildlife Protection Act at the same time partially
focuses on the rights of the forest dwelling communities. The Act provides for
setting up a Tiger Conservation Authority which is supposed to address
conflicts of men and wild animals and to re-emphasize on co-existence. 320
The Amendment addresses the livelihood concerns of the local people.
The Amendment states that Subject to the provisions contained in this act,
the state government shall, while preparing a Tiger Conservation Plan,
ensure that the livelihood, developmental and other interests of the people
living in the tiger bearing forests or a tiger reserve.321 We would like to
emphasize on the usage of word shall in the section. The Act divides tiger
reserves into two core or critical tiger habitats and buffer or peripheral area.
It provides that the core areas are required to be kept as inviolate for the
purposes of tiger conservation, without affecting the rights of the Schedules
Tribes or such other forest dwellers. And in the peripheral areas, the Act
provides that where a lesser degree of habitat protection is required to ensure
the integrity of critical tiger habitat, it should be aimed at promoting coexistence between wildlife and human activity with due recognition of the
livelihood, developmental, social and cultural rights of the local people.
The Amendment also talks about voluntary relocation on mutually
agreed terms and conditions in accordance with provisions of the Act. 322 It
also says that no scheduled tribes or other forest dwellers shall be resettled or
have their rights adversely affected for the purpose of creating inviolate areas
for tiger conservation subject to certain exceptions.323 These certain
exceptions are discussed later in the paper.
319
INDRANIL BOSE, HOW DID THE INDIAN FOREST RIGHTS ACT, 2006, EMERGE?, DISCUSSION PAPER
SERIES NO.39 ( MAY 2010),
HTTP://WWW.ENVIRONMENTPORTAL.IN/FILES/FOREST%20RIGHTS%20ACT%202006EMERGE.PDF. (LAST ACCESSED ON MAY 15, 2015).
320
Section 38 (O)(d), Wildlife Protection Act, 1972.

Id., Section 38(V) (4).
322
Id., Section 38V(5).
323
Id., Section 38(5).
321
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The Amendment of 2006 has provisions in favour of the forest dwellers

but at the end of the day, the Amendment was passed in light of the dwindling
population of the tigers.324 The idea behind the legislation was to protect and
promote tigers and at the same time try not to entirely disregard the forest
dwelling communities. To emphasize on this point, we would like to point out
at the inviolate area provision that is completely void of human activity.
Those who had co-existed with the tigers prior to the 2006 amendment are
pushed out of the areas which have been declared as Critical Tiger Habitat.
There have been instances when once the area is depopulated, it is
secured for the growth, development and exclusive delight of the rich and the
prosperous.325 The practice of resettlement (removing people from
protected areas in order to create these inviolate spaces) in India has been
done in a highly unscientific, corrupt and coercive manner. People have been
forced to move with no or very little compensation, often with no evidence at
all that their presence was having any negative effect on wildlife.326
Other problems regarding implementation have been discussed further
in the paper. But the basic issue with the 2006 Amendment was that the main
aim of the legislation was to protect the dwindling tiger population but the
rights of the forest dwelling communities was a secondary issue, which was
given consideration only after dealing with the tiger issue. And the
implementation of the Act has been on the tardy side. And there was a dire
need to pass a legislation exclusively concentrating on the rights and needs of
the forest dwelling communities.
324
Id., at 5.
CR Bijoy, Good news for tiger?, The Hindu, (Dec.5, 2010). Available at:
http://www.hindu.com/mag/2010/12/05/stories/2010120550160500.htm (last visited on May
15 2015).
326
Tarsh Thekaekar, What does it take to save tigers?, Infochange Environment (Aug.2012),
Available at:
http://infochangeindia.org/environment/features/what-does-it-take-to-save-india-s-tigers.html.
(last accessed May 15, 2015).
325
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146
The Forest Act, 1927 provides for declaration of some areas of the
forest as protected and out of bounds for the forest dwelling communities.
Then, the Wildlife Protection Act provides for tiger conservation and gives a
moderate recognition to the rights and reallocation of the forest dwelling
communities.327 And when tiger conservation comes into picture, the rights of
the forest dwellers cannot be ignored. In some cases it allows for co-existence
of the two and in some, there needs to be relocation and rehabilitation, the
implementation of which has been completely in waters.328
In the light of all the above and the injustice endured by the forest
dwelling communities since long, the Forest Rights Act, 2006 was passed. The
Act clearly mentions that its main objective is to undo the historical injustice
endured by the forest dwelling communities. The legislation attempts to
recognize and vest the forest rights and occupation in forest land to forest
dwelling STs and other traditional forest dwellers (OTFD) who have been
residing in such forests for generations but whose rights could not be
recorded. This Act also provides for a framework for recording the forest
rights so vested, and the nature of evidence required for such recognition and
vesting in respect of the forest land.329
IMPLEMENTATION OF THE FOREST RIGHTS ACT, 2006

The history of the forest rights will clearly show why the Act came in to
being in the first place so that when the current scenario dealt with later in the
paper, analyzing how the Act is being implemented as of now, becomes
clearer. The Forest Rights Act, 2006 came into being for a very significant
327
Praveen Bhargav, Legal framework for wildlife conservation in India, Conservation India
(Feb.11, 2015). Available at:
http://www.conservationindia.org/ready-reckoner/the-legal-framework-for-wildlifeconservation-in-india-2. (last accessed May 15, 2015).
328
A. Samant Singhar, Laws for protection of wildlife in India: Need for awareness towards
implementation and effectiveness, Indian Forestor, 1116 (Oct. 2002). Available at:
http://www.ces.iisc.ernet.in/biodiversity/sahyadri_enews/newsletter/issue2/elephant-pdffile/128_10_6.pdf-. (last accessed on May 15, 2015).
329
What Plagues Implementation Of Forest Rights Act?, Think To Sustain (Mar.4, 2011).
Available at:
http://www.thinktosustain.com/2011/03/what-plagues-implementation-of-forest-rights-act2006/ (last accessed on May 15, 2015).
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purpose of clearly defining the rights of the forest dwellers by legally

recognizing their property, livelihoods and homes.330 Apart from this, the Act
assisted in bringing into picture the legal provisions relating to rehabilitation
and relocation of the tribals in the areas declared as Critical Tiger Habitats
(herein after CTH) in accordance with the Wildlife Protection Act as the legal
provision mentions that humans and tigers cannot co-exist in CTH in the case
of buffer zone of a tiger reserve.331
The Act was brought into the legal scenario by the Manmohan Singh
government as a populist measure in order to help conserve one of the prides
of the country, our national animal- the tiger.332 But things did not go as
planned, that is, according to the policies made regarding this issue as well as
the Amendment made in 2006 to the rather anti-people WPA as well as the
FRA. The implementation or rather the non-implementation of the Act
received a lot of furore from the forest dwellers as well as environment-based
activists and NGOs.
It led to various demonstrations by the people themselves. For example,
unrest spread throughout Gudulur on the streets of Niligiri of Mudumalai
region in Tamil Nadu, including blockades and protests in December in the
year 2009 by lakhs of tribals.333 What was the cause of this unrest? It was the
agitated response of the not so common man to the sluggish and belated
implementation of the FRA. Wayanad, ecologically rich region, in Kerala has
already been active since long in protesting for injustice towards acquisition
of land on behalf of the government. Implementation of the FRA was actually
considered as the harbinger of conflict between the state and the officials of
the forest department, which has continues to over shadow the crucial issue of
the requirements of the tribals and the reciprocation towards it according to
legal provisions as well as concentrating on the conservation of the tiger.
330
Forest Rights Act- What Is This About?, Available at:

http://www.forestrightsact.com/what-is-this-act-about (last visited Feb.16, 2015).
331
Section 38 V (4), Wildlife Protection Act, 1972.
332
Bijoy, Supra note at 11.
333
Id. at 11.
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148
WHAT ACTUALLY HAS GONE WRONG WITH THE

IMPLEMENTATION OF THE FRA?
Unscientific Method Of Determining Critical Wildlife Habitats
The government in the first place according to the provisions of
Amendment of 2006 of the Wildlife Protection Act has the sole right to create
tiger reserves. This lead to the creation of number of tiger reserves from 28 to
whopping 39 tiger reserves, spread over 17 states in the country.334 More the
number of tiger reserves, more the number of tribals to be relocated, which in
turn leads to increase in the amount of responsibilities of the government and
the forest officials to look into the resettlement of the tribals and their families
apart from granting sufficient amount of money.
The Forest Rights Act, 2006 provides for scientific determination of the
critical wildlife habitats and to declare inviolate areas for the purpose of
wildlife conservation. The Forest Rights Rules, 2007 and the Wildlife
Protection Amendment Act, 2006 propagate the same. The guidelines are
reiteration of the Ministry of Environment and Forests effort to maintain a
control over the forest lands. More than often, the Ministry has used this
power
to
demarcate
critical
wildlife
habitats
discriminately
and
inconsiderately, just to dilute the tribal population in the area. The guidelines
restrict the consideration of the local communities to consultation with the
Gram Sabha, which is not binding on the Ministry.
Forest Rights Act and Wildlife Protection Amendment Act, 2006 provide
for declaration of core wildlife habitat areas only when co- existence is not
possible. But sometimes, the Ministers make no effort to even make a
scientific investigation and declare areas as out of bounds for the forest
dwellers.
In 2011, certain rules were passed in light of the implementation issue,
but they are full of loopholes which negate the whole effect of the new
guidelines. The same has been discussed below.
334
Id. at 11.
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In February 2011, new guidelines were issued. The identification is now to be

carried on by the Park Manager or District Forest Officer in consultation with
the local scientific institution in a time bound manner. The guidelines do not
provide for consultation with the local communities, which was provided for,
in the 2007 Amendment. The new guidelines leave no scope for involvement
of local communities and Gram Sabha, therefore violating the provisions in
Forest Rights Act itself. The guidelines give room to banned practices in
regard to certification.335
In the revised guidelines, the suggested procedure for identification of
CWHs has a number of additional gaps or improprieties. It suggests an
impractical timeline of a mere sixty days, ignoring the fact that such scientific
and objective assessments, on a case by case basis, demand quality time and
information. Importantly the requirement of scientific basis is missing in the
new guidelines, and no methods for scientific identification or determination
are prescribed. The revised Guidelines once again reflect the ad hoc approach
adopted by the Ministry of Environment and Forests in implementing the FRA
particularly in case of the protected areas.
336
Moreover, the whole process is
carried on by the Forest Departments, which have been described as antiforest dwellers by the activists more than once.
All in all, the very purpose of the Act is not being fulfilled. Unscientific
identification and improper declaration of core critical wildlife habitats is
rather prevalent. Neither the tigers nor the tribals are benefitting from the
same. The poor implementation and the vague and violative guidelines take us
to the pre forest rights and wildlife protection era, where the forest land was
ruled by the forest bureaucracy.
Issue Of Corruption
The problem of corruption and lack of efficient functioning of the forest
department has been creeping in the scenario and as a result, repercussions of
the same are suffered by both the endangered communities of the tribals and
the tigers. Conservationists and people, in general consider it as a land
335
336
Id. at 15.
Id. at 21.
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150
grabbing spree on behalf of the government.337 It is illegal to plant a single

tree in a reserved forest but then the government has the authority to cut an
entire forest if the permissions have been obtained. Therefore, it is pretty
evident that such excessive and absolute power has been given to the
government in consequence of which the system has befallen due to corrupt
practices. The current scenario is that if you bribe a forest guard to do your job
or get a favour, its done. When it can get so easy, what is the point of
superficial laws talking about conservation of wildlife and rehabilitating the
tribals for that purpose? The whole practice is endangering all the
stakeholders at the behest of the forest babus.338 It is a known fact that a lot of
trees have been cut after receiving assent from the government. This not only
endangers the tigers but also the tribals who depend majorly on the forest
products to earn their livelihood and for their survival on the whole. There
exist corrupt practices when it comes to rehabilitation and resettlement of the
tribals, after an area is declared CTH. The land that has been acquired by the
government for relocation is sometimes used for other commercial purposes
like for construction purposes. Another way in which corruption creeps in is
through the money that is received which is misused by the politicians for
their own personal interests, leaving the cause of tribals and tigers in the lurch.
Ineffective System Of Checks And Balances
There is a so called system of checks and balances, but then that too has
not been as effective as the requisite is. According to the Forest Rights Act,
2006 the gram sabha339 has been empowered with various powers and plays
the most significant role in implementation of Forest Rights Act.
337
The Forest Rights Act, 2006. Available at:

http://www.forestrightsact.com/component/content/18?task=view (last visited on Mar.11,
2015).
338
Id. at 23.
339
Ministry Of Tribal Affairs, Rights of Tribals and Other Forest Dwellers Recognized under
the Forest Rights Act, 2006.
Available at: http://www.pib.nic.in/newsite/erelease.aspx?relid=77574 (last accessed on May
15, 2015).
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According to Section 5 of the Act, the gram sabha has the responsibility of
protection of wildlife and bio-diversity apart from assisting in preserving the
habitats of forest dwellers from any damage on their own natural heritage. The
hierarchy of the bureaucracy is something like this - The gram sabha forms
the first tier followed by a sub-divisional committee, then the district
committee and finally the state committee to look into the various roles as
mentioned in Section 5 of the Act where a major role would be conservation
of wildlife. It is noticeable that there is a long drawn system of hierarchy, so
smooth co-operation and co-ordination in functioning remains a distant dream.
But quite a large chunk of power and responsibility has been given in the
hands of the Gram Sabha. According to news, state-level committees are
functioning in a futile manner instead of working in a well-planned and
systematic process in achieving the aim and purpose of the conservation of
our national animal, tiger.340
Unfortunately, their accountability cannot be questioned until and
unless there is a case filed in the Supreme Court which may not see the light
of the day since the real sufferers being forest dwellers, who are not well
aware of their own basic rights that let alone take legal action against the
inefficiencies and in accuracies of the bureaucrats at such high positions in
their respective offices. The system is opaque in its operation, despite the roles
and responsibilities being transparent as specified in law. The responsibilities,
apart from ecological and biological conservation are imposing penalties for
destruction of wildlife and bio-diversity on behalf of the Gram Sabha.341
These faults in implementation has caused apprehension and unrest amongst
ecological and wildlife conservationists.
Can Tribals And Tigers Co-Exist?
The row about the significant question- if tigers and tribals can co-exist
has faced a clash of opinions. This is another significant issue that has to be
brought out in this regard. There is substantive reasoning for both the
arguments, that they can coexist and that the same may not be such a
340
341
Id at 15.
Section 6, Forest Rights Act, 2006
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152
pragmatic idea. Also, with the definitions of the words like co-exist and
consent missing from the Act, it leaves people to interpret these words
according to their understanding and interpretation. Supporting the
connotation that the tribals have a right to reside in the forest since centuries
and have been a part of various movements (Ex. Tharutribals willingness in
helping of conservation of the tiger in the indo-Nepal border region, in
association with the police force342) and initiatives dealing with biological and
ecological conservation of forests, co-existence becomes a more reasonable
idea. There are examples where the forest dwellers actually worship the tiger
and also the last thing they would want to do is destroy their own habitat and
place of survival.
Janaki Lenin, a writer, conservationist and wildlife film-maker, strongly
puts forward the opinion that there is no cogent proof showing that the
dwindling numbers of tigers is strongly because of the forest dwellers and that
they are incapable of co-existence.343 It is a crucial and vital point that tigers
may need to survive in inviolate forests. But, is that justifiable under
circumstances where the tribals are asked to vacate their homes and relocate to
a new vicinity which may not even happen, given the history of the past
events where the government has failed to rehabilitate the tribals according to
the provisions of the act and in a humane manner. But tiger conservationists
like Valmik Thapar have concrete and dissimilar thoughts as of this.344 In an
interview, he firmly based his thoughts on the tiger and tribal co-existence
conflict.
342
Faiz Rahman Siddiqui, Tharu Tribals To Help Protect Suhelwa Tigers, TIMES OF INDIA,
(Dec. 11, 2010).
Available at: http://articles.timesofindia.indiatimes.com/2012-111/kanpur/35749275_1_tigerconservation-wildlife-crime-forests-and-tigers (last accessed on May 15, 2015).
343
Janaki Lenin, Tribals Vs. Tiger Conservation, FRONTLINE (Feb.26, 2011). Available at:
http://www.governancenow.com/views/columns/tribals-vs-tiger-conservation-0 (last visited
on May 15. 2015).
344
Annie Zaidi, The Tiger has been placed in its coffin- An Interview with Valmik Thapar,
22(18), FRONTLINE (Aug.27- Sept.18, 2005). Available at:
.http://www.frontline.in/static/html/fl2218/stories/20050909002810100.htm. (last accessed on
May 15, 2015).
153
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He says that this ideology is not pragmatic and practically possible. Well, the
times have changed since 1905. The needs of the forest dwellers have
changed. Back then, they derived the very basic of their necessities from the
forest but now times have changed and so have the tribal communities. They
have moved on and are looking for an up gradation in their lifestyles. For
example, Shekhar Dattari, a wildlife and conservation filmmaker in his article
exclaimed about the Irula tribe of Chengalpet District, Tamil Nadu345:
Take my Irula friends, for example. When snake skins became a
favoured export commodity in the 60s, they roamed the countryside
catching every snake they could get their hands on, skinning it alive
and selling the skin to a trader. It is estimated that between 1967 and
1968, Irula and other tribal people slaughtered no less than 10 million
snakes for the industry, mainly cobras and rat snakes, which are
valuable pest controllers. A similar scenario unfolded when the export
of frog legs was at its peak in the late 70s. While I have no quarrel
with poor folk for making a living using the only skills they possess,
these are examples of the free-for-all that ensues when market forces
enter the life of tribal communities.
The real life scenario is self-explanatory and articulate on how the tribal
needs have evolved with time and the influence of current market trends in
their otherwise simple and primitive lives. Human settlements cause
deforestation which in turn leads to destruction of habitat making hundreds of
wildlife animals including the tiger homeless.
Dattari also points out that humans can live out of forest but animals cannot.
Of course resettlement schemes have failed but it is not something that is
impossible to achieve with the help of transparent and democratic functioning.
Rehabilitation And Resettlement Issues
Every legislature has certain shortcomings and loopholes which it needs
to overcome. But what if the one of the core objectives of the legislature lacks
in implementation and could not overcome its loopholes?
345
Shekhar Dattari, Myth Of Harmonious Existence, THE HINDU (Aug. 13, 2011). Available
at: http://www.shekardattatri.com/?page_id=86 (last accessed on May 15, 2015).
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154
Same is the case with the Forest Rights Act, 2006. The Act is one of
those landmark legislations which have recognized the injustice endured by
forest dwellers since times immemorial. The Act has major implementation
issues. The present chairperson of National commission for Scheduled Tribes
expressed his dissatisfaction with the implementation of the act by saying in
an interview Central funds for all-round development of tribal community
are being diverted.346 The Act has tried to make the rights of the people
compatible with the tigers, whose population is dwindling at an astonishing
rate. It has tried to provide for rehabilitation and relocation of forest dwellers
in areas which are declared core wildlife habitats.347348
The Indian Courts have stated time and again, if a forest-dwelling
community is physically displaced because of a development project, the state
should make all possible arrangements for the community to continue its
livelihood and maintain its cultural identity elsewhere.349 This is one of the
core rights propagated by the Forest Rights Act, 2006. The rules published in
2008 neither elaborated this key right of forest dwellers nor stipulated how a
development project that would displace them could rectify such a breach of
their rights. Instead, the central government has handed over the responsibility
of formulating the rules for dealing with land acquisition and resettlement of
displaced forest dwellers to the Ministry of Environment and Forests.350
346
K. Jeevan Chinnappa, Implementation of forest rights act A panacea for all ills, THE
HINDU(Nov. 10, 2012).
Available at:
http://www.thehindu.com/todays-paper/tp-national/implementation-of-forest-rights-act-apanacea-for-all --ills/article4083800.ece.(last visited on May 15, 2015).
347
Section 3(m), Forest Rights Act, 2006 - Right to in situ rehabilitation including alternative
land in cases where the Scheduled Tribes and other traditional forest dwellers have been
illegally evicted or displaced from forest land of any description without receiving their legal
entitlement to rehabilitation prior to the 13th day of December, 2005.
348
Section 4(2) (f) Forest Rights Act, 2006 - No resettlement shall take place until facilities
and land allocation at the resettlement location are complete as per the promised package:
Provided that the critical wildlife habitats from which rights holders are thus relocated for
purposes of wildlife conservation shall not be subsequently diverted by the State Government
or the Central Government or any other entity for other uses.
349
Debashree De, Tribals and Green governance: Forest Rights Act, 2006, SANHATI (Oct.
16, 2011)
Available at: http://sanhati.com/excerpted/4252/#sthash.q1OJvxpt.dpuf.
(last accessed on May 15, 2015)
350
Id., at 36.
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The Act faced a lot of opposition from the ministry and continues to
endure the same. Strings are being pulled from each and every direction to
ensure that no development takes place in the life of forest dwellers and that
the forest and its resources can be monopolized by the rich and the powerful.
There have been instances where the forest land has been declared out
of bounds illegally and no measures have been taken for their relocation and
rehabilitation. In the Kota district of Rajasthan, where the Sariska Tiger
reserve is located, the villagers are being subject to gross harassment and
eviction notices and are no measures are being taken for their relocation and
resettlement. There have been cases of illegal and involuntary relocation
practices in Kota.351 In three tiger reserves in Maharashtra, relocation took
place without recognition of rights, with no scientific investigation and no
consultation. Also, the relocation facilities were not even completed before
relocation, which is in violation with the act.352 The Sunabeda Tiger reserves
saw overnight evictions and relocation by the forest department out of fear of
lengthy processed in context with the act.
The forever going ministerial payola seems to be another reason for the
problems in the relocation and rehabilitation. They acquire funds from the
central government but the funds never reach the forest dwellers.
Also, the land acquisition and rehabilitation laws in the country are not
on the sturdy side. A bill relating to the same called Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Bill, 2013 is still pending, which once passed might give some
backing to the relocation and rehabilitation aspect of the forest rights act.
Lack of Public Awareness
Another hurdle faced in the implementation of the Forest Rights Act,
2006 is the lack of awareness among the public, especially forest dwellers
regarding their rights under the said Act. Forest Rights Act provides for a 3
step process so as to claim ones right over the forests, which includes
351
The Forest Rights Act, 2006.

Available at: http://www.forestrightsact.com/current-situation. (last visited Mar.15,2015).
352
Id., at 38.
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156
initiation of a claim, verification of the claim and vesting a right on the basis
of the claim.
It should be noted that the aim of the Act is to empower one of the most
marginalized, poor and vulnerable section of the society. The whole concept
would be a void if it is not ensured that the forest dwelling communities are
made aware of their rights and of the fact that they have a claim over the
same. Also, lack of awareness could lead them to be evicted of the areas
where they can actually co-exist with the tigers. They should be made aware
of their rights to explain their long coexistence with the tiger population, how
they have immense knowledge on the same subject and about the legal
requirement of their suggestions regarding the same. A proper guidance and
awareness program needs to come in the picture.
CURRENT SCENARIO
The present state of affairs after the implementation of the Forest Rights
Act, 2006 in respect to a few states of the country is mentioned below353Madhya Pradesh
The state of Madhya Pradesh has a large number of STs in its
population and the forest cover in the state is very large. The tribals apart from
facing the problem of community rights also are facing troubles in the sphere
of tiger reserves. The tribals are subject to aggravation in these areas and face
problems with respect to relocation. The local authorities have decided to
challenge these illegalities which have taken under the implementation of the
act.
Rajasthan
In the Sariska tiger reserve, the forest dwellers are facing the same
problem of resettlement. In the Ranthambore tiger reserve the relocation is
illegal in nature. The shocking aspect of it is that the act was not even
enforced in these areas at that time and the relocation was in process.
353
Id.at 39.
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These families owned 60-70 bhigas of land and they were compensated
through cash and not land which is highly unreasonable on behalf of the
government. It is a sheer violation of the wildlife protection act 354 in
accordance to resettlement.
Maharashtra
In three of its tiger reserves, namely, Melghat, Pench & Tadoba, there
have been noted attempts of relocation of villages in violation to the act of
forest rights of 2006. The village of Botezari was relocated out of Tadoba
reserve in 2007, even though such relocation was illegal under the Amendment
to the Wild Life (Protection) Act. Part of the village of Kolsa was also
relocated at the same time. No rights were recognized, there was no scientific
investigation and no consultation took place. Facilities at the relocation site
are still not complete as of June 2009, though as per law relocation is not
allowed until facilities are complete. Harassment continued inside the reserve,
leading to repeated protests in November 2008 and May 2009.355
Andhra Pradesh
In the Srisailam tiger reserve, efforts are being made to relocate the
chenchus illegally. But it seems that the wildlife department has decided to let
them stay and be a part of the tiger conservation.
Tamil Nadu
Violations of the Act continue to persist. In Kalakkad Mundanthurai
Tiger Reserve, on 6 May 2008, eviction notices were issued to all the
Kaniadivasis who were living in four villages inside the reserve, with the
reason that they had "failed to help the Forest Department". This, apart from
being no ground for eviction under any law is also a violation of basic human
rights. When the villagers replied pointing out that the notice is not only
illegal but also a criminal offence under the Forest Rights Act, they received
another letter on 19th June from the concerned forest officer that is the Deputy
Director of the Tiger Reserve, threatening them with unspecified further
action if they do not disown their reply.
354
355
Section 38(5), Wildlife Protection Act, 1972.

Patnaik, Supra note at 3.
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158
Eviction notices were also issued in the proposed Annamalai Tiger Reserve in
August 2008, and were then withdrawn following protests and action by the
Collector. The district officials have been insisting that the people cannot
claim their rights in wild life sanctuary and tiger reserves under FRA. The
process is yet to take off.
Karnataka
In the tiger reserves the administration along with an NGO has been
spreading false propaganda that the forest dwellers will be relocated along
with a compensation of the cash of Rs.10 Lakh per family. But this can take
place only if the rights have been recognized in the first place with the
informed consent of the Gram Sabha and more importantly if it is proved
scientifically that co-existence is not possible. But, the authorities make no
effort whatsoever to do the same and abide by the laws.
In 2009, in the Nagarhole Tiger Reserve, more than a couple tribal
homes were brought down in the hamlet of Nanachicovuhadi and according to
reports some of the families have already accepted monetary compensation
and moved out, prior to provision of any relocation facilities or even
recognition of their rights. This is a gross violation of the core provisions of
the Forest Rights Act. Allegedly, the forest authorities refuse to accept claims
of the adivasis under the Forest Rights Act, which in turn pressurizes them to
accept just the cash compensation, give up their rights and move away from
their hearth.
RECOMMENDATIONS & CONCLUSION

Since the Forest Rights Act has come into the picture, it has been
surrounded constantly by controversies and major implementation concerns
have been associated with it. From lack of awareness to being subject to
political debauchery, the Act has faced all kinds of problems in realizing its
objectives. In light of all of the above, we sought to provide certain
recommendations and suggestions so as to ensure the proper implementation
of the Act and to enable it to achieve its aims. In respect to the problem of
awareness, however utopian it sounds but a sense of realization needs to
159
VOL 1:2
befall upon the authorities that the Act has come into existence to undo the
historical injustices suffered by forest dwelling communities, who are one of
the most marginalized, vulnerable and illiterate section of the society. So, an
extraordinary effort has to be made for making them aware of their rights. The
whole purpose of the legislation, if they are not made aware of what their
rights are and how to claim them, will be defeated. The state governments
should hold awareness programs in the local language so as to facilitate an
easy flow of information. The Ministry of Tribal Affairs can circulate
brochures regarding how to file a claim in simple and comprehensive local
language along with illustrations.356 Also, adequate assistance should be
provided to the tribals to enable proper filing of claims. At least, a minimal
effort should be made by the local people as well, to contribute to the cause of
the act.
Corruption, in the current situation is acting like a weapon of
destruction and hampering the process of conservation and instead of
protecting, endangering both the tribals and the tigers. As mentioned above,
the money sanctioned for conservation of tigers and for the relocation of the
tribals by the central government, fails to provide for the cause and is diverted
by the politicians for their own selfish motives. The correct implementation
isnt possible if these problems of corruption continue to persist. Time and
again the need for greater transparency and stricter system of checks and
balances has been reiterated but the issue at hand is how the same can be
achieved. Our suggestion is that the Acts of the forest officials and the flow of
money in relation to the Act needs to come under the ambit of Right to
Information Act, 2005, which has proved in the past to be a messiah for the
citizens of the country. It may be a bit of a difficulty for the forest dwellers to
file applications under RTI directly but this can be undertaken on behalf of
them by the local conservationists, environmental organizations and the gram
sabha.
356
Id at 7.
2015]
160
These institutions need to understand the greater role that they can play in
fighting the social evil of corruption and actually making sure that the
historical injustice suffered by the tribals is undone. We also suggest that the
central government to whom we can attribute greater transparency should put
in place a more stringent system of checks and balances. This can be achieved
through a system of accountability which states where every penny of the
sanctioned money is spent. A system of direct communication between the
gram sabha and the central government should be facilitated so as to check
that the accounting information provided by the forest department is actually
accurate or not. This provides for the much needed check on the middlemen.
It also ensures in diminishing the acts of bribery and use of forest lands for
commercial purposes. Even though the Forest Rights Act has a provision for
penalizing for the wrongful act of the officials it needs to be implemented
effectively so that a deterrent effect is created which in turn, will help in
curbing the corrupt practices.357
Absolute power tends to corrupt absolutely; hence, it is not advisable to place
absolute power in the hands of the ministry of forest and environment but
instead, give some powers in the hands of the stake holders and gram sabha as
they know the practicality of the situation and the consequences that may arise
in the light of the act. Co-existence according to many tiger conservationists
like Valmik Thapar, as mentioned above, is considered as a myth which is
actually true to a great extent as it is substantiated with justifiable and rational
reasoning. Lets face the truth, the times have changed and so have the needs
and the aspirations of the tribal dwellers. There may not be substantive
evidence showing that the forest dwellers are one of the major causes for the
dwindling number of tigers but they are eating up into the forest land for
various agricultural and various other activities which encroach their habitats
and quite obviously the tigers have nowhere else to go. As mentioned
according to the Wildlife Protection Act, 1972 the tribals can continue to
reside in peripheral areas but not in critical tiger habitats as the tribals may get
357
Section, Forest Rights Act, 2006.
161
VOL 1:2
tempted into poaching or the likes. The resettlement and rehabilitation can be
made a strong success if the right method is followed. Its the 21st century and
even the tribals would like to live in the outside world. Once they come to the
outside world they can seek jobs under various schemes like Suvarna Jayanti
Rajaswa Abhiyan, etc. provided by the government.358 They are provided with
decent jobs and education for the children as well.359
The Forest Rights Act and the subsequent amendments itself do not
provide for a proper scientific method for the establishment of the tiger
reserves. The system disregards the opinion of the gram sabha as well as the
tribals when declaring an area as a critical tiger habitat. So there should be an
Amendment regarding the law dealing with scientific identification and the
committee formed for doing the same as there is nothing scientific in the
present method. The forest dwelling communities need to be made aware of
their rights in respect to the rehabilitation and resettlement aspect. The
relocation should only take place if the forest dwellers are satisfied and only
after the all facilities are available at the relocation site. We feel that activists
and local organization can assist in making the forest dwellers aware of such
rights. Also, the evil practices of the politicians need to be curbed so as to
make sure that relocation only takes place when there is a dire need to do so.
Also, the forest dwellers are not forced into anything. This issue overlaps with
that of the need to put a stop to corruption practices and greater awareness.
Also, the land acquisition laws in the country need better implementation and
transparency. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2014 is a legislation relating
to the same. The Act has provisions to provide fair compensation to those
whose land is taken away, brings transparency to the process of acquisition of
land to set up factories or buildings, infrastructural projects and assures
rehabilitation of those affected. But, the actual benefits of these provisions are
358
Vivek Deshpande, Employment Scheme Becomes A Huge Hit With Gadchiroli Tribals,
THE INDIAN EXPRESS (Jan 24, 2013), available at:
http://www.indianexpress.com/news/employment-scheme-becomes-a-huge-hit-withgadchiroli-tribals/1064075/ (last accessed March 15, 2015).
359
MAHARSHTRA GOVERNMENT- TRIBAL SCHEMES, available at:
http://mahatribal.gov.in/htmldocs/schemes.html (last visited March.14, 2015).
2015]
162
yet to be known since it is a recently passed legislation. Therefore, we would

like to conclude by saying the Forest Rights Act is historic in itself in the
sense that it recognizes the long forgotten rights of the forest dwelling
communities. But the Act would completely fail itself, if not properly
implemented. The issue of conservation of tigers should be dealt hand in hand
with rights of the tribals and nobodys rights should be forsaken in the
process. The proper implementation of the Act can work wonders when the
rights of the tribals and the role that they can play in conservation of the
national animal of the country are recognized.

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INDIAN JOURNAL OF CONTEMPORARY LAWS

Capstone Education is a non-profit initiative of Capstone Foundation which is a

For more details refer to our website http://www.capstoneeducation.in/

INDIAN JOURNAL OF CONTEMPORARY LAWS

2. CAN RIGHTS BE LIMITED UNDER THE GARB OF RELIGION :

3. THE LAW, VIDEOCONFERENCING, AND AN EVOLVING

4. AN INTERFACE BETWEEN CONSUMERS RIGHT TO ACCESS

5. TAXATION OF SOFTWARE IN INDIA: AN INSIGHT INTO THE

6. CHILD PORNOGRAPHY ON THE INTERNET INNOCENCE

7. RE-VISITING THE RIGHT TO PRIVACY

8. A GENE PATENTING BREAKTHROUGH: THE MYRIAD STORY

10. IMPLEMENTATION OF FOREST RIGHTS ACT, 2006 IN TIGER

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TOWARDS A COMPREHENSIVE WATER LAW FOR

of these, in their own way, underline the inestimable value of

TOWARDS A COMPREHENSIVE WATER LAW

years, in recent times, made the Rajasthan

report prepared by an expert team, on behalf of the European Union,

INDIAN JOURNAL OF CONTEMPORARY LAWS

Reform in the Water Sector, by drafting an overarching Comprehensive Water

TOWARDS A COMPREHENSIVE WATER LAW

indeed , lessons in water resource conservation, use and management, in

find the place and create a

for these in the law for Water Resource

Analysis of the systems prevalent in other legal systems,

guide and steer the Water

Resource Management System in India, in a more systematic and

Engagement, by the administration, in Water Resource Management, through

INDIAN JOURNAL OF CONTEMPORARY LAWS

tools, from the existing practices,

substantial time in engaging in a series of dialogues and deliberations with

TOWARDS A COMPREHENSIVE WATER LAW

INDIAN JOURNAL OF CONTEMPORARY LAWS

each other; overarching and overriding and , at times, repealing them, to

INDIAN JOURNAL OF CONTEMPORARY LAWS

CAN RIGHTS BE LIMITED UNDER THE GARB OF

Rights and family law reforms have progressively intertwined within

II Year, B.B.A. LL.B (Hons.), SKYMs, NMIMS School of Law, Mumbai.

INDIAN JOURNAL OF CONTEMPORARY LAWS

Tarunabh Khaitan, Personal is Political, The Telegraph, July 11, 2005.

RIGHTS UNDER THE GRAB OF RELEGION

Adoption and Maintenance Act, 1956. Thereby individuals of religions such as

Guardians and Wards Act, 1890.

INDIAN JOURNAL OF CONTEMPORARY LAWS

care/sponsorship. Moreover, the United Nations Convention of the Rights of

RIGHTS UNDER THE GRAB OF RELEGION

reaching the goal enshrined by Article 44 of the Constitution.23 Article 44

Supra note 13 at 11.

INDIAN JOURNAL OF CONTEMPORARY LAWS

RIGHTS UNDER THE GRAB OF RELEGION

profess and practice other religions, and religion was confined to

INDIAN JOURNAL OF CONTEMPORARY LAWS

INDIAN JOURNAL OF CONTEMPORARY LAWS

THE LAW, VIDEOCONFERENCING AND AN EVOLVING JUDICIAL

III Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad.

INDIAN JOURNAL OF CONTEMPORARY LAWS

evidence and witness examination through videoconferencing. It is to fill this

TRACING THE LEGAL EVOLUTION

RN Malkani v. State of Maharashtra, AIR 1973 SC 157.

THE LAW, VIDEOCONFERENCING

AIR 2003 Kant 148.

INDIAN JOURNAL OF CONTEMPORARY LAWS

a witness to the conference, (vi) the manner in which it is to be recorded and