Environment Laws in India

Men are both creator and builder of this environment, which gives him physical sustenance, protection and affords every human an opportunity for physical, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid industrialization, modernization and globalization, there has been an acceleration of science and technology. Man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.[1]

Man must plant his actions in such a way that they do not cause degradation of environment. Proper and prudent care should be taken to protect the environment and abate the environmental pollution. All these centuries the actions of man caused massive and irreversible damage to the environment.[2] Man cannot afford to cause harm to the earth or to its biodiversity as he has to live here on earth. He cannot afford to dig his own grave. With an understanding between the developed and developing countries, with advanced technical knowledge man can achieve for himself and to the posterity better environment. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build, in collaboration with nature, a better environment.[3] To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development.[4]

A country should adopt relevant environmental safeguards, designed to protect their limited resources. India too adopted several provisions, they are:

 The Wild Life (Protection Act), 1972 came into existence in the month of September, after the UN General Assembly Conference on Human Environment in June 1972, it is not in compliance with the principles laid down at the conference. This Act was amended in 1991 and in 1996. The Rules came into being in 1995. Under this Act every State has to constitute a Wild Life Advisory Board. Certain areas are to be declared as sanctuaries and National Parks. This is Act is basically for the protection of animals, plants and birds which live in forests. Hunting of the wild animals is permitted only when such animals become dangerous to the human beings or it becomes diseased beyond recovery.[5]

  Water (Prevention and Control of Pollution) Act, 1974. The objective of the Act was to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water and establishing Boards for the Prevention and Control of Water Pollution for carrying out these purposes and conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.

This Act was followed by the Water (Prevention and Control of Pollution) Cess Act, 1977. The objective of this Act was to levy and collect cess on water, which was consumed by persons carrying on certain industries and by local authorities with a view to augment the resources of the Central Board and the State Boards for the prevention and control of water pollution. The objective of the Act was to provide prevention, control and abatement of air pollution .This Act basically aimed at the industrial pollution and automobile pollution.

Environment (Protection) Act came in to existence in 1986, after 14 years of Stockholm Conference on Human Environment. The environment protection act has been created with following objectives:

 1. Protection of the environment

 2. Improvement of environment

3. Prevention of hazards to human beings, other living creatures, plants and property.

This is an umbrella legislation, which covers rules and regulations dealing with the environmental protection are the subsidiaries of this Act. It relates to the protection and improvement of environment and the prevention of hazards to Human beings, other living creatures, plants and property.[6]

Besides the enactment of these acts, several constitutional safeguards have also been enunciated under the constitution of for the protection of environment.

Article 14 of the Indian Constitution envisages that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This corroborates with the Principle 1 of UN conference on Environment.  Article 14 provides for fundamental right to freedom, equality and adequate conditions of life, in an environment of aquality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.[7]

48A. Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 51 A (g) guaranteed to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

---

[1]  Leelakrishnan, Environmental Law in India, Lexis Nexis Butterworths Wadhwa, Nagpur, Third Edn., 2008.

[2] http://www.unesco.org/mab/mabProg.shtml

[3] Law relating to Environmental Pollution and Protection: Dr. N. Maheswara Swamy p. 107

[4] http://greenbusinesscentre.com/environlegis.asp

 [5] http://greenbusinesscentre.com/environlegis.asp

[6] Shyam Divan & Armin Rosencranz, Environmental Law and Policy in India, Oxford University Press, Fifteenth Impression, 2013.

[7] UN Conference on Human Environment held at Stockholm between5th -16th June, 1972.

Inter State Council

Within the federal framework, co-ordination of the National and the State policies and their implementation becomes crucial, especially in case of issues relating to common interest and shared action. A federal forum that assists in the co-operation and co-ordination is provided in article 263 to bring together the federal units. The executive powers of the union and States are normally co-extensive with their legislative powers. In regard to matters in the Concurrent List, a Union law prevails over a State law to the extent of repugnancy. However, the fact remains that matters in the Concurrent List are of common interest to the Union and the States. Even the division of powers between the Union and States in relation to matters in List I and List II is not absolute. Several entries in the Union List expressly overlap certain entries in the State List. From a functional aspect, basic issues of national policy in all spheres of overlapping jurisdiction are of common Union-State concern.

The Inter State Council is a recommendatory body of Government of India to investigate and discuss the matter of common interest between the union and states or among states, making recommendations particularly for better coordination of policy and action on these subjects and deliberating upon such other matters of general interest to the states that may be referred to it. The Inter State council was established under article 263 of the constitution through a presidential order dated 28th may 1990. The council was envisaged to be advisory for facilitating Inter- Provincial cooperation. It is also called inter-governmental council.

Compensation for death by police firing: High Court

In a recently reported decision [Arjun Mishra v. State of Bihar, AIR 2010 NOC 869] the Patna High Court has declared that the State was accountable and liable to pay compensation for death of a citizen in police firing. The High Court was dealing with the death of a person in police firing which was ordered to scare away an unruly mob. In this context, noting the precedents on the issue, the High Court directed that payment of compensation in the circumstance was in order.


The High Court speaking on the context inter alia observed as under;

10. Thus, there cannot be any iota of doubt that the death has occurred by the police firing and the father was paid compensation by the State Government. As is evident from the report of the C.B.I., the deceased was a young man aged about 18 years. The question which emanates for consideration is whether his death is warrantable in the circumstances of the case. The report is vivid that the firing was made in the air and due to misfire, a young man got serious injuries and breathed his last.
11. The importance of a life and that too the life of a young man has to be realised. Nobel Prize winner Poetess Gabriela Mistral of Chile, while speaking about the faults committed by society as regards children, spoke thus :-

“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. Right now is the time his bones are being formed, his blood is being made and his senses are being developed.” To him we cannot answer Tomorrow. His name is Today.”
12. The Apex Court in the case of M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 756: AIR 1997 SC 699, while speaking about the obligation of the State and society towards children in the Indian ethos, quoted a stanza which reads thus :-

“I am the child. All the world waits for my coming. All the earth watches with interest to see what. I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail; Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world.” (Mamie Gene Cole)
Long back, John Ruskin had expressed his view as under :

“ I hold it to indisputable, that the first duty of a State is to see that every child born therein shall be well housed, clothed, fed and educated, till it attains year of discretion.”
13. The aforesaid thoughts of great poets, jurists and thinkers have conveyed the concept of a child and the collective responsibility towards the child as a child fundamentally is the treasure of the future and has the potentiality to shine despite the antagonism of such clouds which derails the civilization. If a child dies, the possibility of a good future gets extinct. Therefore, the State, the society and the collective at large have the sacrosanct obligation to inject the kinetic dynamics to a child to make him grow, to live, to erode the clouds, ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilization in a well organized society. In the name of control of law and order situation, it cannot exceed its power by taking recourse to uncalled for and unwarranted acts to unceremoniously crush the tolerance capacity of the collective. The State cannot take advantage of the poor strata of the society who are not well equipped to fight against the City Halls. The State cannot afford to nasalize and choke the voice of the unknown because they cannot articulate their grievance adequately. The State cannot afford to bid good bye to the young children for such farewell frenzy would not only jettison the conception of accountability but also compel and constrain the nation to go for a constant mourning in the silence and stillness of shock. It is likely to cause a tremor and tribulations in a democratic body polity. The life span of a young man cannot be extinguished on the garb that there was a law and order situation and more so when there was an order only to fire in the air. The pivotal question is should the State’s conception and vision of handling a law and order situation allowing to blow the unkind wind of winter bringing a cataclysm and catastrophe to the families go unnoticed and un-remedied and the parents of a young man who lost their child remain in silence simply because they have got compensation of Rs.50,000/-. The stand in the counter affidavit is not correct on the basis of investigation by the C.B.I. that nobody has been identified. There might have been a law and order situation and a young man who was not even armed and a spectator to the incident would not have invited bullets on his body. Thus, we have no hesitation in placing reliance on the report of the CBI.
14. In this context, we may refer with profit the decision rendered in the case of Nilabati Behera V. State of Orissa (1993) 2 SCC 746 : AIR 1993 SC 1960 wherein it has been ruled thus:

“ A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”
15. In the said case, Justice A.S.Anand (as his Lordship then was) in his concurring opinion expressed the view in the following terms :-

“The public law proceedings serve a different purpose than the private law proceedings. The relief for monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrong-doer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.”
16. In the said case, their Lordships have clearly held that the High Court is the protector of civil liberties of the citizen and has the jurisdiction under Article 226 of the Constitution of India to grant relief to the victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen notwithstanding the rights of the citizen to remedy by way of a civil suit or criminal proceedings. The interest of the public as a whole has to be taken into account to ensure that the public bodies or officials do not act unlawfully and do perform public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Their Lordships have emphasized that the legal heirs of the victim have a right to get compensation and the officials have to perform their public duties properly.
17. In the case of D.K.Basu v. State of West Bengal, (1997) 1 SCC 416: (AIR 1997 SC 610), it has been held as under:-

“ 9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens………”
18. In the said case, it was further held as under:-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental rights to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”
19. Again, in paragraph 54, their Lordships have ruled thus :-

“Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.”
20. Regard being had to the obtaining factual matrix and keeping in view the aforesaid pronouncement of law, we would proceed to quantify the quantum. The young man was innocent. Death came in a most unexpected manner. The State Government has paid a sum of Rs.50,000/- only. Having regard to the age of the deceased victim, the strata from which he comes, the mental pain and sufferings the parents have suffered, the silence that would remain in his house for years and the deprivation of aid and assistance, we think that the cause of justice would be best sub-served if a further sum of Rs.2,00,000/-(Rupees two lacs) only is paid to the parents of the deceased, Sarvajeet Mishra.
21. In this regard, we may fruitfully refer to para 24 of the case of Nilabati Behera (supra):

“24. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner’s name for a period of three years, during which she would receive only the interest payable thereon, the principle amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf and, report compliance to the Registrar (Judicial) of this Court within three months.”
22.. In view of the aforesaid, we direct that the District Magistrate, Sitamarhi shall identify the parents of the deceased and handover the amount to be made available to the parents within a period of three months from the date of receipt of a copy of this order. The amount of compensation should be deposited in a nationalised Bank and/or post office in a fixed deposit in the name of the parents of the deceased and in absence of the parents, in the name of the surviving parent for a period of five years during which they would receive the interest payable therein. The principal amount would be paid only after the expiry of the term.
23. Before parting with the case, we are reminded of a few lines from Regum Ultimo Ratio, a poem written about the death of a small child in 1939 by Stephen Spender :

“Consider : only one bullet in ten thousand kills a man. Ask : was so much expenditure justified On the death of one so young and so silly Stretched under the olive trees, Oh , world, Oh, death ?”
24. After reproducing the aforesaid sensitive lines, we say no more.

Source: LAW-IN-PERSPECTIVE

Is Naxalism Justified ?

Naxalism had started after the backdrop of the rise and fall of the Telangana Movement (1946-51). After an incident in a remote village called Naxalbari in West Bengal, tribal people retaliated and started forcefully recapturing their lands landlords had attacked the tribal who had taken the judicial order. This movement had grown with the advent of time. All India Coordination Committee of Communist Revolutionaries was converted to Communist Party of India (Marxist- Leninist) due to disagreements between the members. ‘Allegiance to the armed struggle and non-participation in the elections’ were the two cardinal principles of this Movement.

Charu Majumdar is regarded as the ‘Undisputed Naxalite Guru’. In his leadership he had written several Articles, those articles later on became the famous ‘Historic Eight Documents’, which formed the basis of Naxalism His talks and comments becomes the ‘party line’. In his words it clearly shows that this movement is against the Corrupt persons not all the officials of the State.

Answering to the question whether Naxalism is Justified or not ? There are two sides. Government says that Naxals and Maoists are the gravest threat to the India’s Internal Security. The Government also adopts various strategies in the battle against Naxalism which hiders the normal living of common masses. On the other hand there are number of Intellectuals who tries to understand the problems of Naxalism and justifies them. Few Intellectuals can be named as Balagopal , Bela Bhatia and famous novelist Arundathi Roy. It is also very interesting here by to note that the leaders who are involved in these movements are highly educated, intellectual people. Kobad Gandhi is a classic example for it. He did his schooling from Doon School where he was classmate of Congress Leader Sanjay Gandhi. After that he went to St. Xaviers College, Mumbai and later did his Accountancy from London. He is now in Tihar Jail, New Delhi.

The Truth is very different because today the Naxalism which we call is not the same and had taken a different turn in every aspect. This turn took place after the Death of Charu Majumdar when many leaders came with different mindsets and the disintegrated the movement as a result of which today Naxalism has grown and is present in every state of India. Government, police officers and the common masses says that Naxals and Maoists are same but the truth is Maoist Movement is bigger than the original Naxal Movement in terms if its reach and its strength. The Maoist have moved leaps ahead of their predecessors who were a part of Naxalite Movement from where the word ‘Naxalite’ was coined.

The Need of the Hour is to look upon the matter specially today’s situation of growing Naxal Movement and to implements methods especially in the rural area because in this Fight between Naxals on one side and the State on the other there are common masses who are being affected. One interview by a local tribe of Chhattisgarh explains the need to cure the issue. He said :
 “Earlier, we used to fear the tigers and wild animals. Now we fear the guns of the Naxalites and the police. Life is very difficult. The Naxalites think we are helping the police. The police think we are helping the Naxalites. Nowadays, we are living in fear that who will kill us first"

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

 

Source: LegalJunction

Brief notes on the concept of Legal Rights

We have mentioned earlier that a person is an entity clothed with certain rights and duties. The sources of different rights may be customary, statutory, contractual, tortuous, personal law, etc.

Some of the rights, which a person has, are interest in life, or liberty or property or extending over domestic relations and even to contractual relations. Some of these interests are not recognized or protected by law. The rights recognized or protected by law alone are enforceable. These rights have their origin in some source or the other, such as custom, statutes, personal law, of tort.

There are a number of distinguishing features of rights. Some of these are: (i) A right is always vested in a person but not in an inanimate being or animal or even a dead person. (ii) A right is generally correlative of a duty in relation to the fulfillment of a right. (iii) The right must relate to a subject matter, namely the objects, which in a given case may relate to a person or property, place or a thing. (iv)The nature of a right may be to get something done from another or to refrain him to do something.

Thus, there may be a right to get back the money lent, or to get the house built as per agreement, or to prevent a person to trespass upon your property. (v) Every right can be traced to a source which may be a contract, a custom, a natural law, etc.

By: Tapan

Intellectual Property Rights

Intellectual Property Rights (IPR) is the right to protect innovative ideas to make use of and sell a new product or technology. The protection is granted solely to the inventor or corporation, which files a claim on the investors' behalf, for a limited period of time. This may take the form of patents, trademarks or copyrights. IPRs are legally enforceable but with limited monopoly granted by the state to the inventor. Within the specified time frame for which granted, no one else can copy the idea or technology allowing the innovators to commercialize it and recoup any investment on research and its development. Intellectual property has two characteristics in particular which lend it to special legal protection.


The first is that it tends to have a high cost of development and the second is that it has low7 costs of reproduction. For example, it may cost say more than a few crores to bring a new drug to the market, yet after the drug is available any good chemist could through reverse engineering reproduce it at a fraction of the cost. Similarly, amongst any other product or process of which computer software or a piece of writing are the most easily copied.


The area where IPR requirements are most pronounced can be categorized as:
Agriculture - Plant varieties including Genetically Modified Organisms (GMOs)
Manufacturing
Information products


The debate for the desirability of IPRs continues in terms of welfare of the innovator who deserves right/remuneration for his efforts against the welfare of the society at large, which would benefit from the access to the innovation. The argument for IPR protection is that there would be less innovation without protection as no one would be willing to shell out large amounts of money or even innovate to develop new products/technologies/processes, if their innovation could be immediately copied by others; stronger the IPR protection, the more monitory rewards can be recouped by the innovator and thus more innovation tends to occur.


However, it cannot be overlooked that the overriding needs of the welfare for all rich and poor is to have affordable access to the results of innovation that can lead to in sustainable development. It is important to note that while on one hand the financial incentive for innovation is a key justification for IPRs, on the other hand, IPR systems can severely hamper the very innovation they are intended to spur as the sharing and spread of innovative knowledge would get restricted in the hands of only a few who can invest in it.


To bring all the countries at par, the Trade Related Intellectual Property Rights (TRIPs) was formulated in January 1995, under which all member countries must bring their national IPR laws into conformity with certain provisions. However, the provisions in it generated so much controversy and debate that the final agreement states that the conditions "shall be reviewed after every four years from the date of entry into force".


The benefits of IPR protection for the innovator (and country) and lack of it for mankind and sustainable development on a whole needs to be weighted each time the issue crops up and decide accordingly.


By: R.K TRIPATHY

Simplification Of The Legal Words And Language:Need Of The Hour

Law is very much complicated than human brain. That is why it fails to reach to the general people in India. Most of the law is drafted and decorated on the foreign principles before the Indian independence and after the independence. After 1947 to next 15 years, the position of the Indian democracy was just like the baby stage .Now Indian democracy is quite mature but at this postmodern era of deconstruction there is no simplification of the legal words and language. Most of the advocates juggle with the words. The general people of India are in an exploitive situation to get the justice as because the legal words are beyond the reach of literate educated and semi educated. The general people are the tax payer and the parliamentarians, judges and public prosecutors draw a lump sum from the public money. All laws are for human beings and if it is too tough to understand for the critical legal language for the general people from where law is evolved and then what is the use of it. It is just like the colonial policy to collect the raw material and make a finished good for gain of a particular handful of people.

Every human being is self advocate for self representation self defense due to natural reason within them. The simplification of legal words and language can provide them with more power of liberalization, equalization and personal sophistication to shield and shape their rights named and unnamed to strengthen the welfare society and social changes and social control.

By: Sk Jahangir Ali

Source: Legal India

Honour Killing in India

An honor killing, or honour killing is the homicide of a member of a family or social group by other members, due to the belief of the perpetrators that the victim has brought dishonor upon the family or community. Honor killings are directed mostly against women and girls, but have been extended to men.(wikipedia)
Stringent Indian laws on honor killings fail to curb the increasing trend. Interestingly, honor killings happen, irrespective of a person’s religion or social status. Every year over 5, 000 brides are killed for dowry in India. In 2007, approximately 655 cases were registered as honor killings. Imagine what the unofficial statistics must be really like. The worst affected region in India is Muzaffarnagar (U.P), with 25 percent of honor killing in official police reports.Indian laws do not treat honor killings in a specific or separte clause.

Indian Laws on Honor Killings: Community Mentality and Bifurcations

Typically, the police investigate honor killings but we still live in a society where we have learned to segregate people on the basis of social status, economic standards, religion and caste. The community mentality tends to be basic - an individual is identified by his caste and status rather than by anything else. Sometimes religious outfits and caste-based social units also encourage bifurcations based on caste and religion. The extent of orthodoxy in the Indian society is still a paradox because of the considerable chasm between the beliefs of those who prefer to live the life of the traditional society and those who embrace modern views with a vision to create a changed order.

Indian Laws on Honor Killing: A Severe Criminal Offence

Indian laws pertaining to honor killings are covered under the Indian Penal Code. Clearly, the IPC considers honor killings as a heinous crime. Unfortunately, honor killing is not classified as a separate crime in India. However, the government of India is set to add new section to the criminal law to define honor killing as a separate crime.

The proposal has already been approved by the Home Ministry and the Law Ministry. The government is likely to pass a bill in Parliament in the next budget session.

The punishment for honor killing carries the same punishment as that of murder. The punishment could range from life term to death sentence. 

Even,Muslim women have been the unfair victims of many brutal cultural practices. Honor killings are seen as the most gruesome of these. Islam has clear laws regulating sexual conduct and killing a girl in such a manner is against the fundamental principles of Islam.

Adverse possession

Adverse possession, is the possession of property by a person which is adverse to every other person having, or claiming to have a right of possession by virtue of a different title. The law of prescriptive rights is best summed up by the Brocard, ‘nec vi, nec clam, nec precario’, indicating the acquisition of a right by prescription must be in circumstances that exclude ‘force, stealth or licence’. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem. In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, etc.. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished. An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:

Section 27: Extinguishment of Right to Property- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.

Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property.

Article 65 deals with cases where the dispute is over title as such also and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff.

Adverse possession of the land is the process by which title to another’s land is acquired without his permission. Adverse Possession is a possession which is opposed to once interest of the real owner of the property. It is possession in denial of the title of the true owner. According to Supreme Court of India, “The law as it exists is extremely harsh for the true owners and a windfall for a dishonest person who had illegally taken possession of the property of the true owner.” In layman language it is called “land grabbing.” Roots of this type of land grabbing lies in the national policy called “Land to the Tiller”. Although the aim of the policy was to abolish of intermediaries between the tiller and Government, some dishonest person used this policy as a license to grab the other person’s land.

Once adverse possession is proved by the person despite by wrong means, the true owner loses his right over the land/property. A person can prove adverse possession if the possession is:

• Actual - Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute.

• Open and Notorious

An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another’s lands does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

• Exclusive

Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

• Hostile

Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner’s rights. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

• Continuous & Uninterrupted – All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”. (In India as per Limitation Act 1963, the statutory period is 12 years)

The Lawyer and the Environmental Crusader

My first reaction when approached by Bar & Bench to write a piece for their Working Title series was to wonder if they’d contacted the right person. Who, me? Why on earth would my professional trajectory be of interest to anyone, and especially to lawyers and law students? After all, I’m the person who introduces myself to people I meet as a “recovering lawyer,” and am usually at pains to impress upon others that I’m the last person they should turn to if they ever need legal advice.

I gathered that Bar & Bench was interested in people who’ve bridged the legal profession and other fields. But the idea of a bridge presupposes that one is rooted in two places at once, and I had to ask myself the question: “Am I still tied to the law in any way or have I made a total departure, making law school completely irrelevant to my career?” During the process of writing this article I answered that question for myself, and I’ll tell you the answer…but not just yet!

First, a quick snapshot of what I do.

I’m currently a Climate Solutions Analyst at The Climate Reality Project in Washington D.C. The organization (formerly known as The Alliance for Climate Protection) is a nonprofit that was founded and continues to be chaired by Nobel Laureate and Former U.S. Vice President Al Gore.

We are an advocacy group as well as an educational entity, building awareness about the threat of climate change, its impacts, and solutions. Often when people don’t act on an issue, it is simply because they don’t know enough or can’t readily grasp the information out there. Our objective is to make complex climate science more accessible to people, and break down cutting-edge clean energy technology developments to help people understand them better. We do cool stuff like this video to make greenhouse gas emissions more tangible for people or this one that drives home the local impacts of a warmer planet. We work—independently and in coalitions—to support key legislation or policy that could bring us one step closer to solving the climate crisis. We’ve done this in the United States, and we also show our support for beneficial climate law and policy around the world. Additionally, we also spur citizen leadership on climate change by empowering a global corps of individuals who are influential members of their own communities, and by equipping them with the tools to talk about climate science and policy. Mr. Gore and our staff train these volunteers to make compelling presentations and hold workshops in their own spheres of influence, educating their audiences about the defining issue of our time.

My role at The Climate Reality Project—as part of a small team of brilliant and creative colleagues— is to make sure that our messages are based on accurate, credible climate science and that we rely on the best-available data to communicate about clean energy solutions. My day-to-day responsibilities include keeping abreast of the latest studies in peer-reviewed scientific journals or cleantech portals, reviewing them, analyzing the implications, translating the information into user-friendly research briefs or blog posts, and getting the word out to our members, our online audience, our millions of supporters and a wide range of actors. In short, I absorb, distill and disseminate. (Hmm…I wonder where I honed those particular skills? Keep reading for answers!)

Prior to my joining The Climate Reality Project I worked at The Natural Resources Defense Council (NRDC) in New York City for three years. I started my tenure there as a research associate in the Institutional department, assisting NRDC’s President, Executive Director and senior management with research inputs on a broad range of topics, from environmental issues (food and agriculture policy, transportation policy, individual actions to reduce emissions etc.) to organizational matters (strategic planning, Board relations etc.). Within a few years my background as an Indian-trained lawyer and my understanding of India’s environmental, social and political context, coupled with my interest in climate and energy policy, propelled me towards a natural transition within NRDC towards international issues; I joined NRDC’s India Initiative as a policy analyst and—as part of a team—helped initiate a number of climate change mitigation and adaptation projects in India (such as scaling up energy efficiency adoption in buildings in Hyderabad, building public health capacity against the health impacts of climate change in Ahmedabad, strengthening US-India collaboration on clean energy etc.).

The kick-off point for my work in the climate and energy policy space was my Master’s degree from The School of International and Public Affairs (SIPA) at Columbia University in New York. My two-year Master of International Affairs (MIA) program allowed me to focus on a subject-matter of my interest, Environmental Policy Studies. Studying at Columbia exposed me to an invaluable peer group of smart, driven, ambitious and inspiring classmates as well as to faculty with exceptional knowledge of the issues I was deeply invested in. While at Columbia I also gained insight into real-world application of climate and energy policy during my internship at The Clinton Foundation’s Climate Initiative. I owe a great deal to those two years at grad school.

Why did I choose to pursue a Master’s in Public Policy and International Relations instead of a Master’s in Law (LLM)? Because I’d realized by then that what makes me tick is advocacy for broad policy shifts and transformative macro-level changes, as opposed to piecemeal victories. I’d always known, of course, that I wanted to effect change in the environmental sector; since I was a child I’ve cared immensely about the state of our planet and what we’re doing to it. I knew I could only be really, truly happy in life if I work on issues I’m passionate about, in a meaningful way that allows me to feel like I am contributing to solutions instead of perpetuating the problems. I knew I wanted to help move the needle towards a better, safer future.

But before I was ready to begin that journey, and before I could start applying myself to finding solutions to environmental challenges, I felt it was essential for me to supplement my knowledge of the law with a more complete understanding of the earth and its component-systems. I wanted a holistic education that would be the basis of sound, informed judgments in my future career, be it as a campaigner, a writer, as a member of a non-profit organization, as part of a lobbying group, or as part of government. I wanted to understand why some legal approaches to environmental problems work while others don’t. I was also eager to gain insights into the fundamentals of hydrology, geochemistry and biophysics, as it was important to me that I be able to comprehend scientific data and translate that understanding into an effective response. My time at Columbia not only gave me all this, it surpassed my expectations by also affording me exposure to management theory, program-design, cost-benefit analysis, statistics, project-management, environmental economics and much more. In essence, my Master’s in a non-legal field to help me deepen and diversify my education by teaching me all these skills.

But I would be remiss in not acknowledging the real launching pad for my career – my years in law school at The National University of Juridical Sciences in India. After all, it is my grounding in law that was the foundation for my further studies in public policy. Even though I do not practice law, the skills law school taught me have been valuable assets at grad school and at work. Wading through hundreds of paragraphs of judgments in AIRs to find the main takeaway (ratio) of the decision; poring over thousands of pages of WTO disputes to identify the most important issues involved; familiarizing myself with arguments both for and against a topic and determining the merits and demerits of each type of argument; writing five papers every semester (over 50 in five years!), from outlines through first drafts, second drafts and final papers – a process that got quicker every time and led to steadily better quality writing and analysis; moot courts that taught me how to argue for a position, even if I did not personally agree every time; learning how to compellingly lay out my arguments in a brief and structure my case in a logical, systematic way; improving my public speaking skills through moot courts and gaining confidence in my ability to address rooms full of strangers, or worse, adversaries. The list is long, but if I had to summarize it, I think it wouldn’t be much different than absorb, distill, disseminate!

In addition to developing, honing and deepening professional skills, law school also gave me valuable real-world exposure. Over five years, I did a diverse set of internships that helped in contextual learning. My work with Tarun Bharat Sangh in the desert of Rajasthan and with ATREE in tribal areas of India’s North-Eastern states afforded me unique insight into grassroots environmental initiatives, including community-based natural resource conservation, decentralized accountability systems in environmental management as well as traditional water harvesting and forestry practices. I also gained experience in environmental policy-analysis and formulation as a result of my assignments relating to India’s draft environmental policy of 2004 and identification of the reforms needed in forestry law and policy. My internships at the World Bank and the Department of Indo-European Studies, MDI gave me opportunity for extensive research into food quality issues, national and global food safety standards as well as WTO law and trade-environment conflicts – an area that continues to fascinate me today. While at law school I was also fortunate to gain international experience in environmental advocacy through my internships at Greenpeace, Australia and Earthjustice, USA. At Greenpeace I obtained an insider’s perspective to civil society strategies and campaign management, while at Earthjustice I worked to assist the United Nations Commission on Human Rights in its consideration of an international human right to a healthy environment. Looking back, many of these internships wouldn’t have materialized had it not been for these organizations’ interest in having a law student on board. So law school gave me an edge there too.

Last but not the least, law school shaped the person I’ve turned out to be by bringing me in contact—directly and indirectly— with some exemplary teachers. I received guidance and encouragement from some of the best environmental theorists and practitioners: Dr. Meena Panicker, Dr. B. S. Chimni, Eileen Kaufman, Louise Harmon, Professor Ved Nanda, Professor Martin Wagner, and­—most significant of all­—Professor Armin Rosencranz. Each of them has left an indelible mark on me and helped me move closer to my goals.

Today, even though my bookshelves are not lined with legal textbooks and case laws, and even though I don’t wear robes when I go out to make my case on critical issues, my training as a lawyer remains an intrinsic part of me. If I pause and think about it, I use the skills I gained or strengthened in law school, on a daily basis. Whether I’m reading a scientific study and trying to hone in on the most relevant findings or whether I’m writing a research brief and trying to organize my thoughts in a coherent, systematic manner, I’m drawing on what I did in law school for five straight years. Sure, I like to joke that there’s nothing “lawyerly” about me anymore, but I think my friends will disagree and remind me of my argumentative streak, my verbosity, my urge to always look at both sides of an issue and understand both perspectives, my fierce sense of fairness and my outrage at injustice. So, far from being irrelevant to my career trajectory, deeper reflection tells me that law school was pivotal to my work in public policy and environmental advocacy, and to who I’ve become as a person. (For better or for worse!)

As I wrap this up, I’m also aware that I’m sitting in Washington DC, a city overrun by people who trained as lawyers and even spent a part of their careers as lawyers but who’ve branched out into countless other pursuits. It’s hard to go an hour here without meeting someone else who started out in the legal profession and has used the law as a platform to move on to things he or she is passionate about: conflict resolution, journalism, human rights activism, public health, campaign finance reform….and yes, environmental advocacy. The list is endless. And that’s a reminder to me that law school is much the same: limitless. It can open up as many doors as you want, and can accelerate your success on any chosen path. Just follow your heart, do what’s important and meaningful to you, and don’t be afraid of separating from the herd. Good luck!

By:-  Shravya Reddy

Source: Bar & Bench